Chapter 1 - § 1.4 • LOCAL REGULATION
| Jurisdiction | Colorado |
In addition to federal and state environmental control, Colorado local governments also have significant roles in environmental protection. The balance of this chapter covers the role of county and municipal governments, the close relationship between environmental regulations and local land use laws, and issues such as noise and odor that have particularly local impacts.
§ 1.4.1—County And Municipal Authority
Counties are political subdivisions of the state and have only those powers that are granted to them by the Colorado Constitution or statute.121 With the creation of the City and County of Broomfield in 2001,122 Colorado has 64 counties. Cities are municipal corporations that generally have a population of more than 2,000.123 Towns are municipal corporations that generally have a population of 2,000 or less, or that have grown and chosen not to reorganize into cities.124 The powers of cities and towns are limited by the charters or statutes that created them.125
Counties, cities, and towns may have a "statutory" or "home rule" form of government.126 "Statutory" local governments have only those powers granted by state statute.127
The distinction between home rule municipalities and statutory municipalities is important because the former have the power to supersede state law with regard to matters of local concern.128 Whereas "statutory" cities and towns have only those powers granted by state statute and must comply with state environmental statutes,129 "home rule" cities and towns have broader powers of self-government and can override such statutes if they pertain to matters of local concern.130 It can, however, be difficult to determine what qualifies as a matter of local concern.131 The determination whether something is a matter of statewide or local concern is usually made on a case-by-case basis.132 "There is no litmus-like indicator for resolving whether a matter is of local, statewide, or mixed concern."133 Relevant factors include: (1) the need for statewide uniformity; (2) the extraterritorial impact of local legislation; (3) whether the matter has traditionally been regulated at the state or local level; and (4) whether the Colorado Constitution specifically commits the matter to either state or local regulation.134
In 2009, the Colorado Supreme Court reinterpreted the relationship between state and local authority in Colorado Mining Association v. Board of County Commissioners.135 Although the Colorado Mined Land Reclamation Act136 allows the use of the cyanide heap leach method to extract gold, Summit County banned all use of toxic or acidic chemicals such as cyanide for mineral processing. Relying on an implied preemption analysis, the court concluded that the county's ordinance was not a proper exercise of its land use authority because it excluded what the General Assembly had authorized.137
In 2016, the Colorado Supreme Court revisited preemption in City of Longmont v. Colorado Oil & Gas Ass'n,138 in which the court struck down Longmont's oil and gas fracking ban. After acknowledging that prior preemption cases had caused some confusion, the court clarified "that the question of whether a matter is one of statewide, local, or mixed state and local concern is separate and distinct from the question of whether a conflict between state and local law exists."139 With respect to the first question, the court reiterated the four factors mentioned above relating to: (1) statewide uniformity, (2) extraterritorial impact, (3) how the matter has traditionally been regulated, and (4) constitutional commitment of the matter to state or local regulation.140 With regard to the second question, the court described three forms of preemption: express, implied, and operational conflict preemption.
Express preemption applies when the legislature clearly and unequivocally states its intent to prohibit a local government from exercising its authority over the subject matter at issue.
Preemption may be implied when a state statute "impliedly evinces a legislative intent to completely occupy a given field by reason of a dominant state interest." A legislative intent to preempt local control over certain activities cannot be inferred, however, merely from the enactment of a state statute addressing certain aspects of those activities. Rather, we must consider the language used and the scope and purpose of the legislative scheme.
Finally, a state law may preempt a local regulation when the operational effect of the local law conflicts with the application of the state law, and we have articulated different standards to determine whether such a conflict exists.141
The court found that Longmont's fracking ban involved a matter of mixed state and local concern because of the need for uniform statewide regulation and the extraterritorial impact that a ban would have. The court then struck down the ban based on operational conflict because the ban would materially impede the application of the state's Oil and Gas Conservation Act.142 In 2019, however, the General Assembly passed a "no land use preemption" statute providing that a "local government's regulations may be more protective or stricter than state requirements."143
§ 1.4.2—Interplay With Land Use Laws
Local land use laws and environmental regulations are frequently intertwined. Local governments often weave environmental controls into their zoning and subdivision regulations. As a result, handling environmental problems at the local level requires at least a basic understanding of local land use laws.144
Most counties and municipalities administer land use laws through a planning commission, sometimes referred to as a planning board. Although planning and zoning are separate functions, they are typically handled by the same governmental body.145 "The land use plan sets forth the planning commission's recommendation as to the most desirable use of land from the community's perspective, while zoning provides the detailed means for giving legal effect to the plan's policies and principles."146
The Local Government Land Use Control Enabling Act147 provides that local governments have the authority and power to regulate the use of land on the basis of the impact of such use on the community and surrounding areas.148 This act supplements, but does not replace, city and county zoning and subdivision control enabling acts. One of the basic functions of zoning is to keep incompatible uses separate from each other. New industries generally must locate in an industrial zone, and new residences are not allowed.149 Industries should not have to worry about new houses being built too close to existing sources of noise and smell, and then having the residents complain. And residents living in residential zones should not have to worry about pig farms moving in next door.
§ 1.4.3—Local Concerns
Although some environmental issues such as air pollution and global warming have regional or worldwide effect, others such as noise, odor, and visual impacts are primarily local concerns. Those with exclusively local impact are most likely to be handled by local government. Even with local issues, however, there may be relevant federal or state legislation.
Noise
Noise pollution can be a significant nuisance, particularly in urban areas. Although it dissipates quickly, noise pollution has a cumulative effect that can not only have a serious impact on human health by causing emotional and behavioral problems, but also contribute to high blood pressure and heart disease.150 Noise also tears at the social fabric of cities. One study found noise pollution to be "the most undesirable neighborhood condition, more irritating than crime and deteriorating housing."151 The primary sources of urban noise are vehicular — traffic and car alarms — but noise pollution affects real property because that is where people live, and it affects their property values.152 In addition, because of the adverse effects of industrial noise pollution, noise regulations can limit certain uses of real property.
Federal Noise Control Act of 1972
The Noise Control Act of 1972153 regulates noisy products, railroads, and motor carriers. No state or local government may adopt or enforce any law or regulation setting noise emission standards for products, railroads, or motor carriers that is not identical to the corresponding EPA regulation.154 A state or local government may, however, establish and enforce controls on environmental noise through the "licensing, regulation, or restriction of the use, operation, or movement of any product or combination of products."155
Airport Noise Abatement
In addition to the Noise Control Act of 1972, Congress passed legislation in 1994 dealing specifically with airport noise.156 The most significant effect of this law on real property is that it limits recovery of damages caused by aircraft. An airport operator may submit a noise exposure map to the Secretary of Transportation showing noncompatible uses.157 A person who acquired property after 1980 may recover damages attributable to the airport only if, in addition to any other elements for recovery of damages, the person shows that the damages resulted from a change or increase in aircraft operations.158
Colorado Noise Abatement Law
State law defines noise exceeding certain levels as being a public nuisance.159 Sound is measured in decibels on the "A" scale of a standard sound level meter.160 Sound levels radiating from a property line during the following times in the following zones are prima facie evidence of a public nuisance.161
| Zone | 7:00 a.m. to next 7:00 p.m. | 7:00 p.m. to next 7:00 a.m. |
| Residential | 55 db(A) | 50 db(A) |
| Commercial | 60 db(A) | 55 db(A) |
| Light industrial | 70 db(A) | 65 db(A) |
| Industrial | 80 db(A) | 75 db(A)162 |
If the noise is periodic, impulsive, or shrill, then sound levels 5 db(A) lower than those listed above are...
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