Cooperative Management of Urban Growth Areas Through Igas

• Publication year: 2000
• Pages: 85

29 Colo.Law. 85 Colorado Lawyer 2000.

2000, November, Pg. 85. Cooperative Management of Urban Growth Areas Through IGAs

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85

Vol. 29, No. 11, Pg. 85

The Colorado Lawyer
November 2000
Vol. 29, No. 11 [Page 85]

Specialty Law Columns
Government and Administrative Law News
Cooperative Management of Urban Growth Areas Through IGAs
by Stephen J. Roy

To what extent, and how, can cities and counties agree to share land use planning and regulation in urban growth areas This article briefly explores the legal foundation for intergovernmental agreements ("IGAs") that provide for cooperative land use planning and regulation and touches on some of the legal issues that may arise in drafting such agreements

Specific Constitutional and Statutory Authority

Generally, a municipal corporation cannot exercise its powers beyond its corporate limits without legal authorization.1 Thus, an IGA that calls for the sharing of power in an urban growth area requires a sufficient grant of authority because that growth area is, by definition, outside the territorial limits of the city. In Colorado, the grant of authority necessary for such agreements can be found in the Colorado Constitution and the state statutes. Both recognize the ability of governments to cooperate or contract with one another "to provide any function, service or facility lawfully authorized to each of the cooperating or contracting units" as long as the appropriate authorities of each governmental entity authorize those cooperative efforts.2 The phrase "lawfully authorized to each" means only that each entity must have the authority to perform the subject activity within its own boundaries.3 Both cities and counties have the power to regulate land use within their respective boundaries.4

The Local Governmental Land Use Control Enabling Act ("Act")5 makes explicit the authority of local governments to jointly plan and regulate land use. The Act authorizes and encourages local governments to cooperate or contract with one another for the purposes of planning and regulating the development of land through the joint exercise of planning, zoning, subdivision, building, and related regulations.6 With regard to IGAs, the Act states that "local governments may provide through intergovernmental agreements for the joint adoption by the governing bodies after notice and hearing, of mutually binding and enforceable comprehensive development plans for areas within their jurisdictions."7 Such comprehensive development plans ("CDPs") "may contain master plans, zoning plans, subdivision regulations and building code, permit, and other land use standards which, if set out in specific detail, may be in lieu of such regulations or ordinances of the local governments."8

The Act also states that IGAs providing for a CDP may contain (1) a provision that the CDP may be amended only by mutual agreement of the governing bodies of both entities,9 and (2) a provision that allows the CDP to continue to control a particular land area, even though the area is annexed or otherwise transferred between the governmental entities that are parties to the agreement.10 Because this enabling legislation is framed in terms of the adoption and enforcement of CDPs, the parties to an IGA that focuses on planning and zoning issues related to an urban growth area would be well advised to define that area as a component of a CDP to come clearly within the enabling language of the Act and allow for joint land use regulation in the area.

Sharing Regulatory Authority

Land use regulation is an exercise of the police power,11 and local governments may not contract away such authority.12 In an IGA, a city and a county might agree that they will not only jointly plan how development should occur in an urban growth area, but also agree that the city may exercise its zoning authority or impose other kinds of land use regulations within that area. In that situation, the question can arise as to whether, in agreeing to share its regulatory power or permitting the city to impose its own land use regulations outside its territorial limits, the county is improperly contracting away its police power.

The Colorado cases that prohibit governments from contracting away the police power arise not in the context of IGAs, but in the context of contracts between governments and private entities. For example, in Crossroads West Ltd. v. Town of Parker, the owner of a shopping center entered into an "Access and Right-of-Way Agreement" with the Town of Parker that prohibited the town from eliminating or restricting certain access to the shopping center unless the access points became safety hazards.13 However, the Colorado Court of Appeals determined that the agreement was an unlawful restriction on the town’s authority to regulate traffic in the exercise of its police power for other reasons affecting public welfare, such as...