JurisdictionUnited States
Natural Resources Administrative Law and Procedure
(Nov 1981)


Thomas N. Kiehnhoff
Frederickson, Johnson & McDermott
Canon City, Colorado


This paper will discuss both the legal authority of local government to regulate mineral extraction and development, and administrative proceedings before local government pursuant to those regulations.

The discussion will focus on local government control of mining through zoning and related land use regulations. The various States and federal government have generally pre-empted matters such as reclamation, pollution control and taxation of severed minerals. However, local government still exerts primary control over the location and siting of mining as a land use. That control is almost invariably exercised through the zoning power.

The explication on practice and procedure before local government will be limited to local government in Colorado for two reasons: The continuity of presenting case and statutory law will be enhanced if a single jurisdiction is examined and, the issues examined by Colorado courts have a general relevance to local administrative practice outside the state.1

This paper is not meant to be a treatise on the law of zoning. Rather, the goal of the author is to present a framework for identifying and meeting the procedural issues that arise in practice

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before local government. The reader is encouraged to apply this general discussion to the particular rules, statutes and case law of his or her jurisdiction.

There are legal and practical reasons for examining local government's role in the regulation of mining and related administrative practice. Those reasons are discussed in greater detail throughout this paper, but may be summarized as follows:

Local governments have express authority to regulate mining. In the case of the "Colorado Mined Land Reclamation Act", compliance with local regulations is a required first step in the permit process.2

In addition to direct regulation of mining, local government may have additional authority to regulate activities ancillary to a mining project.3

The first judicial review of a project is likely to occur after local government has approved or disapproved a project. Judicial review in such a case will be limited by facts established in the record made at the local administrative proceeding. Further, judicial review almost always will result in a judicial determination of the suitability of the site proposed for the project.

Finally, the people most directly affected by a mining project are those people next to it. Those local people are the constituents of the local government regulating the project. The importance of identifying and addressing the impact of a project on local people cannot be emphasized enough.


A discussion of administrative practice before local agencies requires that the term "local agency" be defined.

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In Colorado, local government exists at the county and municipal level.4 As a general rule, the executive, legislative and quasi-judicial functions of local government are vested in a single elected body.5 With the very important exception of home rule cities, local government does not exist as a purely sovereign entity with inherent governmental powers; rather, local government is created and organized by the general assembly of the state and exercises its delegated powers under express constitutional authority and direction.6 With the exception noted, local regulation

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of land use is defined and limited by the constitution and the powers conferred on local government by the general assembly. In this area, local government must act within the limits of its express delegation of authority and the powers impliedly necessary to accomplish its statutory goal.7

Home rule cities are municipal governments with constitutional authority to exercise "...the full right of self-government in both local and municipal matters..."8 In contrast to statutory cities and towns and county government, home rule cities have exclusive jurisdiction over "local and municipal" matters which will supersede conflicting state legislation in the same area.9 The Colorado Supreme Court has held that zoning is a matter subject to local regulation within the meaning of the constitutional provisions authorizing home rule cities.10 While the scope of control exercised by a home rule city in the area of land use regulation is not beyond constitutional limitations, the practitioner should be aware of the role of the city charter in home rule cities as an organic source of authority in the area of land use regulation.

The arms of local government which have a role in the administration and enactment of zoning regulations necessarily include

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the board of county commissioners at the county level and the city council and board of trustees at the city and town level.11 In addition, the planning commission has an important advisory role in land use decisions and a primary responsibility to develop a master or comprehensive plan for the physical development of the local government's jurisdiction.12 Boards of adjustment are given specialized adjudicative roles with respect to the zoning ordinance.13 Finally, there is authority for the creation of special permit authorities to administer land use regulation apart from that set out in the zoning enabling statutes.14


In Colorado, local government has the authority to regulate land use and to create districts which limit or otherwise restrict the land uses which are permitted in those districts.15 The purpose behind this traditional or "Euclidian" approach to land use regulation is to group within districts those uses which are compatible and to distribute the location of districts in such a way that incompatible uses are physically separated.16

When land use control is by use districts, mining in any district is likely to be subject to one of four treatments: permitted by right or as an accessory use; permitted by exception; prohibited; and permitted subject to conditions.

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It is clear that there is statutory authority, even encouragement, for local government to permit mining as a use by right in at least part of its jurisdiction.17 In addition, local government is empowered to make exceptions to the application of its zoning resolution and to delegate authority for administering them to the board of adjustment.18 When mining is permitted by right or exception, there are few procedural obstacles to undertaking the desired activity.

Matters of substantive law and procedure at the local level do arise when mining, or any land use, is prohibited outright, permitted or excepted subject to conditions, or when local government disputes its status as an accessory use. In each of the foregoing situations, legal barriers stand between the desire to mine and realization of that goal. Our legal system embraces a variety of mechanisms for initiating review or removal of those obstacles. However, a discussion of remedies and procedures for challenging or abating a hardship created by a land use regulation cannot occur until the authority of local government to regulate land use and the judicial standards for reviewing an exercise of that authority are examined.

A. Legislative Functions

As noted above, the power to control land use at the local level has traditionally been the reserve of local government. As a result, local land use regulations very often vary in scope and content to meet the needs of individual jurisdictions rather than some state-wide plan.19 This lack of uniformity is encouraged by the standard enabling legislation setting forth the zoning power

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which contains very broad language.20 Finally, a lack of uniformity in local regulations is made possible by procedural deficiencies in the enabling legislation.21 While there is a rudimentary requirement of notice and hearing before a zoning ordinance is enacted or amended, the enabling legislation is generally silent on the procedural standards to be used by local government in making land use decisions and the procedural rights of persons appearing before them.22

The absence of procedural standards for conducting land use hearings can be explained in part by judicial classification of the process of enacting land use regulations.

Almost without exception, the courts have held that enactment of all or part of a general zoning ordinance is a legislative function of local government.23 As such, the procedural requirements of the process are limited to the notice and hearing provisions of the enabling legislation. The weighing of contrary opinions and evidence and control over the reception of the same is left to the local legislature which is charged with implementing land use policy for its jurisdiction.24

Judicial deference to the legislative process is not without qualification. A court can be called upon to review a zoning enactment to test its conformity with the enabling legislation (subject matter) giving local government the power to zone,25 constitutional

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guarantees concerning the use and enjoyment of property,26 and the relationship of the enactment to a legitimate exercise of the police power.27 In addition, judicial review may be available to permit participation by persons wrongfully or inadvertently excluded from the legislative hearing.28 Finally, judicial review in the form of an independent cause of action may be available to test legislative motive in the enactment.29

Despite the availability of judicial review, the burden of overturning a zoning enactment remains difficult.

The broad language of enabling legislation makes the subject matter of land use regulation a matter of growth rather than restriction. For example, Colorado courts have approved the following legislative...

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