Chapter 2 - § 2.5 • THE AUTHORITY TO ZONE

• Jurisdiction: Colorado

§ 2.5 • THE AUTHORITY TO ZONE

The authority to zone is an aspect of a local government's police power — i.e., the power to regulate activities in order to protect the public health, safety, morality, and general welfare. Home rule municipalities have plenary authority over all matters of purely local concern.²⁷ Statutory municipalities and counties have only that zoning power granted by state statutes.²⁸

§ 2.5.1—Statutory Municipalities

• C.R.S. §§ 31-23-301 to 31-23-314
• C.R.S. § 31-15-401(1)(p)
• C.R.S. § 31-15-501
• C.R.S. § 29-1-207
• C.R.S. § 29-20-108
• C.R.S. § 40-5-101(3)

The governing body of each statutory municipality is explicitly empowered to regulate and restrict the height, the number of stories, the size of buildings and other structures, the percentage of a lot that may be occupied, the size of lots, courts and other open spaces, the density of population, the height and location of trees and other vegetation, and the location and use of buildings, structures, and land for trade, industry, residence, or other purposes. The governing body of each statutory municipality is also explicitly empowered to regulate and limit the uses on or along any storm or floodwater runoff channel or basin designated and approved by the Colorado Water Conservation Board. The regulations must generally be prospective with regard to existing buildings, structures, and vegetation.²⁹ In addition, statutory municipalities are given explicit authority to regulate the location of certain industrial and commercial businesses within the limits of the municipality that create impacts on their surroundings.³⁰

In order to implement such controls, the municipality may divide itself into districts and regulate or restrict the erection, construction, reconstruction, alteration, repair, or use of building structures and land. Importantly, "[a]ll such regulations shall be uniform for each class or kind of buildings throughout each district, but the regulations in one district may differ from those in other districts."³¹ The municipality may appoint a zoning commission to recommend the zoning district boundaries, but if a planning commission already exists, the planning commission is also the zoning commission.³² Recently, form-based zoning districts have been drafted that emphasize detailed control over building types, forms, and locations on the lot while allowing more flexibility regarding the uses within the building. No express statutory authority exists for form-based zoning, but this re-orientation of the focus of zoning districts is sometimes viewed as a more flexible and modern approach to zoning and has not been challenged in the Colorado courts to date.

The municipality may determine how zoning regulations, restrictions, and boundaries are to be determined and amended, but must provide at least one public hearing with at least 15 days' prior published notice before adopting any regulation, restriction, or boundary decision.³³ If the owners of at least 20 percent of the land included in a rezoning or the land located within 100 feet of a parcel of land proposed for rezoning file a protest, then the affirmative vote of at least two-thirds of the municipal council will be necessary to adopt the rezoning.³⁴

Local governments often must provide notice to certain parties that may be affected by their zoning and development decisions. For example, in 2005 the General Assembly adopted a resolution that requires any local government, the boundaries of which include all or any part of a military base, to provide "timely" notice to the commanding officer of that base regarding any proposed changes in the land development regulations that would significantly affect the density, intensity, or use of any lands within the territorial jurisdiction of the local government and within two miles of the boundary of the military base. The commanding officer must be given an opportunity to comment on the plan, and the local government must consider those comments in its deliberations on the plan.³⁵ In addition, the municipality must provide a "major activity notice" to the state geologist and the county in which the land is located whenever the municipality considers a proposed commercial or industrial development covering more than five acres of land.³⁶

Also in 2005, the General Assembly clarified that, with the exception of major electrical and natural gas facilities, public utility facilities must conform to local government zoning controls.³⁷ However, this provision does not prevent the Public Utilities Commission from issuing a certificate to a utility that has not received a local permit if it determines that other utilities will not or cannot provide adequate utility service.³⁸ Major electrical and natural gas facilities, as matters of statewide concern, are subject to a separate statute in C.R.S. § 29-20-108, and applicants for these types of facilities may appeal any local government actions to the Public Utilities Commission under that statute. See discussion in Chapter 1, "Planning."

Statutory municipalities must appoint a five-member board of adjustment to hear appeals from any administrative decision made pursuant to the zoning ordinance, and to hear and decide any other matters provided in its creating ordinance.³⁹ Where the physical constraint of a property makes it impractical or difficult, or unnecessary hardships occur in carrying out the strict letter of the ordinance, the board of adjustment can vary or modify the application of...