Chapter 2 - § 2.6 • LIMITATIONS ON ZONING POWERS
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§ 2.6.1—Preemption
Statutory municipalities and counties have only those zoning powers conferred by state statute, and they are subject to all limitations contained in those statutes.67 Home rule municipalities may have broader powers, subject, however, to any limitations contained in their charters. Under certain circumstances, all counties and municipalities are subject to preemption by state statute.
The Colorado Supreme Court recognizes three different ways by which a state statute can preempt local regulation. First, the express language of the statute may provide that local authority over the matter in question is preempted. Second, preemption may be inferred if the statute shows the General Assembly's intent to completely occupy a given field because of a dominant state interest.68 In both instances, the statute may expressly state that the subject matter of the statute is of statewide concern,69 but that statement by itself will not be determinative of the issue. Third, the local ordinance or regulation may be partially preempted if its operational effect conflicts with the application of state statutes.70 This section should be read in conjunction with the broader discussion of preemption outside the zoning context in the Introduction. This topic is also discussed in depth in Introduction § D.
Preemption by Express Statutory Language
• C.R.S. §§ 30-28-115 and 30-28-127
• C.R.S. §§ 31-23-301, 31-23-303, and 31-23-310
• C.R.S. §§ 34-1-301 to 34-1-305
• C.R.S. § 38-12-301
• C.R.S. §§ 30-20-100.5 to 30-20-114
• C.R.S. §§ 38-5.5-101 and 38-5.5-103
• C.R.S. § 24-34-502.2
• C.R.S. § 40-5-101(3)
• C.R.S. §§ 29-27-401 to 29-27-404
• C.R.S. §§ 29-31-101 to 29-31-103
The General Assembly has declared that the establishment of state-licensed group homes for the aged, persons with developmental disabilities, or persons with mental illness is a matter of statewide concern and zoning ordinances must accommodate these homes as residential uses.71 A state-licensed group home with eight persons or less is a residential use of property for zoning purposes, including single-family residential zoning.72 Two group homes may not be located within 750 feet of each other "unless otherwise provided" by the municipality or county.73 All treatment of housing for the "handicapped" (which includes the frail, elderly, persons with HIV, physically disabled, mentally disabled, mentally ill, and recovering from substance abuse) must comply with the Federal Fair Housing Act, 42 U.S.C. §§ 3601 to 3631.
Major portions of the Federal Fair Housing Amendments Act, which applies to and limits local governments' zoning and approval authority, have been explicitly codified into the Colorado Fair Housing Act. These include some requirements for access for people with disabilities into and through: (1) ground floor units of multi-family buildings with four or more units; and (2) other units in multi-family buildings with four or more units and an elevator.74 Because of the similarity between the Colorado and federal statutes, the Colorado Court of Appeals has held that federal case authority will be persuasive in interpreting the Colorado Act.75
The General Assembly has explicitly limited the zoning powers of counties and of both statutory and home rule municipalities by providing that they cannot prohibit manufactured homes that meet the basic standards of the county or municipal building construction code.76 However, if a zoning ordinance restricting manufactured housing to certain districts is rationally related to the public welfare, it will be upheld. Public perceptions about the incompatibility of manufactured homes with site-built homes, tax base erosion, and property devaluation are legitimate public welfare concerns.77
County zoning ordinances do not apply to any existing building, structure, plant, or equipment owned by a public utility. In contrast, the provisions of C.R.S. § 40-5-101(3), adopted in 2005, require public utilities to construct or install new facilities, plants, and systems in accordance with the zoning requirements applicable to the property.78 However, the Public Utilities Commission may waive that requirement to allow the construction of any extensions, betterments, or additions to proceed in violation of county zoning provisions.79
The General Assembly has declared the imposition of rent control on private residential housing a matter of statewide concern.80 Accordingly, no county or municipality (whether statutory or home rule) may enact land use regulations that control rents on private residential property. Local ordinances that — for the purpose of affordable housing mitigation — require rental units in new development projects to limit rental rates constitute a form of rent control prohibited by C.R.S. § 38-12-301, and such ordinances are invalid.81 The General Assembly has since clarified that C.R.S. § 38-12-301 does not apply to privately imposed requirements, such as deed restrictions, and projects in which a local government has a management or control interest.82 Where a project applicant or owner voluntarily agrees to restrict rents through an agreement or deed restriction, the agreement or restriction is enforceable.83 Although untested in Colorado courts, it is generally accepted that imposition of affordable rental requirements through PUD zoning, if done in agreement with the landowner or applicant, is permissible. Local governments may also require developers of rental housing to dedicate property or pay fees for affordable housing mitigation, subject to the constitutional and statutory limitations discussed in § 2.6.2.
Municipal zoning ordinances cannot confer or enlarge any power to establish restrictions based on race or color.84
Counties with a population of 65,000 or more must adopt a plan for the extraction of commercial mineral deposits, and the adoption of zoning inconsistent with the extraction of such minerals is prohibited. The plan and zoning restrictions also apply to the cities within their boundaries.85
State statutes require that counties follow certain procedures in siting and designating solid waste facilities.86 In addition, state law adopted to implement the intent of the Federal Telecommunications Act restricts the ability of Colorado's local governments to adopt permit systems or otherwise restrict telecommunication providers' access to public rights-of-way owned by the local government.87
The Fair Permit Act, which the General Assembly enacted in 2008 and extended in 2011, limits the permit, plan review, and other fees that counties and municipalities may charge in connection with the installation of certain active solar electric or solar thermal devices or systems to the government's actual costs in issuing the permit.88 The Act also declared this matter to be of statewide concern.
Another statute, also enacted in 2008 and addressing a matter of statewide concern, requires that applicants for plats containing 50 or more single-family units (or fewer if the local government chooses) demonstrate that the water supply is adequate to serve the proposed development and lists criteria that the local government must use in determining whether the applicant has in fact demonstrated adequate supply.89 The local government, is authorized, in its sole discretion, to make the determination of adequacy and decide at which stage in the development permit approval process the determination will be made. A county land use approval that did not require documentation of adequate water supply was invalidated when the Colorado Court of Appeals determined that the statutory phrase "new water use" covers not only the use of additional water but also a different use of a similar amount of water currently in use.90
In 2014, the General Assembly declared broadband facilities to be a matter of statewide concern, because of the importance of those facilities to ensure that all citizens have access to advanced technology and information.91 To reflect that importance, it enacted a statute that limits the time that local governments may spend processing and responding to certain applications related to the construction and operation of broadband facilities, in addition to implementing other procedural requirements related to broadband facilities.92
In 2019, the General Assembly determined that the direct sale of agricultural products to the public via farm stands was a matter of statewide concern.93 It referenced the state's compelling interest in promoting the growth and sale of agriculture products grown within the state and ensuring consumers have access to fresh products at reasonable prices. To protect this interest, the General Assembly enacted a statute authorizing the operation of farm stands on parcels of any size, regardless of any contrary regulation.94
Partial Preemption and Intent to Occupy the Field
• C.R.S. §§ 34-60-101 to 34-60-129
• C.R.S. §§ 34-32-101 to 34-32-127
• C.R.S. §§ 43-1-401 to 43-1-421
• C.R.S. §§ 43-1-501 to 43-1-509
This section discusses preemption of local zoning authorities, but see the broader discussion of state preemption on land use issues in Introduction § D.
State Legislation
The Colorado Oil and Gas Conservation Commission has been granted authority to regulate the drilling of oil and gas wells in Colorado.95 The Colorado Supreme Court previously held that the Oil and Gas Conservation Act does not totally preempt a local government from exercising its land use authority in the area of oil and gas drilling regulation.
Local governments need not allow drilling everywhere. Even before major legislative changes in 2019, counties had the authority to enact land use regulations applicable to oil and gas development and operational activities, especially as they relate to land use concerns.96 County regulations must be adhered to as long as they do not conflict with state statutes.97 This resolution of the state's interest in...
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