CHAPTER 8 COUNTY REGULATION OF MINERAL DEVELOPMENT
| Jurisdiction | United States |
(Nov 1979)
COUNTY REGULATION OF MINERAL DEVELOPMENT
Amax Environmental Services, Inc.
Denver, Colorado
CONTENTS
I. Introduction
II. Power of Local Governments to Control Growth
III. The Statutory Framework in Colorado and Wyoming
A. Colorado
B. Wyoming
IV. Socioeconomic Impacts Attendant to Increased Mineral Development
V. Means of Dealing with Impacts of Mineral Developments
VI. Summary
Footnotes 8-19
References
A. Legal Articles
B. Studies and Reports
C. County Resolutions and Regulations
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I. Introduction
This paper will discuss the powers and tools available to local governments attempting to control land use and socioeconomic impacts attendant to increased mineral and energy development in the Western states. Typically, such development occurs in sparsely-populated rural communities where ranching and farming have been the dominant economic activities. Increased mining activity, as well as power plant and similar construction, in such regions has resulted in economic booms in these areas. In some cases, the boom has caused social and economic problems that the communities were not prepared to deal with.
This paper will be limited in scope to local government powers and limitations, and will avoid discussing state and Federal programs. The paper will focus on two counties in Colorado and one in Wyoming, as examples of impacted communities, and will discuss some of the means these areas have utilized to mitigate or avoid adverse environmental and socioeconomic effects resulting from mining and energy development. These counties are Moffat and Garfield Counties in Colorado and Campbell County in Wyoming.
II. Power of Local Governments to Control Growth
Initially, it is important to recognize that counties and municipalities, as well as any regional governments existing within a state's borders, are political subdivisions of that state. Local government powers are limited to those expressly or implicitly delegated by the state. In addition, local governments are further precluded from exercising their powers in areas where the Federal or state governments have pre-empted the field.
Generally, four different types of local government are created by state statute. These include cities and towns (municipalities), counties, special districts and regional governments. Depending on the enabling statute involved, a local government's powers and limitiations on that power vary according to the level in the hierarchy.
Generally speaking, local government has been granted five powers which can be used to control land use. These powers are taxation, borrowing, spending, acquisition, and regulatory. The authority to use one of these means must be granted in express terms, or be necessary or fairly implied in or incident to the powers expressly granted [Certain Lots, etc. v. Monticello, 159 Fla. 134, 31 So.2d. 905 (1947)].
The taxing power is the means by which the various levels of government ultimately finance the programs and services which
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they choose to implement and provide. Examples of taxes which can be assessed include the sales tax, property tax and severance tax. The borrowing power is also a means of funding government projects, especially where the tax revenues will lag significantly behind the capital outlays necessary to initiate the program. By issuing bonds, a county can generate cash in the present to be repaid out of taxes in the future. In addition, local governments can finance their programs by qualifying for Federal, state or private grants or loans.
The spending power of governments can be used to control land use by locating public facilities and programs so as to encourage growth in certain areas and to discourage it in others. For example, location of a school can be very influential in deciding where, when and in what direction a community will grow. Similarly, by improving existing public facilities or by financing specific transportation networks, the local government can use the spending power to channel growth.
The acquisition power of local government can also be used to direct growth. It can be used to condemn certain areas to provide greenbelts for recreation and aesthetic purposes, to acquire property for roads and service facilities, and for other public purposes, provided the city or county makes just compensation. By exercising the acquisition power, a local government can deflect growth from certain areas to others, and can maximize efficiency in providing governmental service.
The final power available to local government is the regulatory power. This basically involves the power to prohibit certain activities, power to plan, and power to zone. The difference between zoning and planning was explained in Seligman v. Belknap [288 Ky. 133, 155 S.W.2d 735 (1941)], where the court stated:
Broadly speaking, "planning" connotes the systematic development of an area with particular reference to location, character, and extent of streets, squares, parks and to kindred mapping and charting. "Zoning" relates to the regulation of the use of property—to structural and architectural designs of buildings; also the character of use to which property or the buildings within classified or designated districts may be put. (155 S.W.2d 736.)
There are certain constitutional and statutory restrictions on the way these powers may be exercised. Generally speaking, the state must have specifically conferred, either expressly or implicitly, the power to the local government. The power must be exercised for a public purpose and it must not be prohibitive, confiscatory, arbitrary, capricious or unreasonable, and there
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must be substantial equality as between citizens affected.1 Local government powers are derived from the police power, which has been defined as the power to make reasonable laws to regulate individual behavior in order to protect the health, safety, morals or general welfare of the community [Commonwealth v. Alger, 61 Mass. (7 Cush.) 58 (1878)].
Exercise of the zoning power has generated the most controversy and intensive litigation: its constitutionality was first tested in Village of Euclid, Ohio v. Ambler Realty Co. [272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 1231 (1926)]. The village had enacted a comprehensive zoning ordinance, which, among other things, classified the plaintiff's land as residential, denying plaintiff the opportunity to develop such land for industrial purposes. Ambler Realty Company sued to have enforcement of the ordinance enjoined, claiming it was denied use of the property in violation of the due process clause of the Fourteenth Amendment. The Supreme Court upheld the constitutionality of the ordinance as a valid exercise of the police power, stating:
Until recent years, urban life was comparatively simple; but with the great increase and concentration of population, problems have developed ... which require ... additional restrictions in respect to the use and occupation of private lands.... The matter of zoning has received much attention at the hands of commissioners and experts, and the results of their investigations have been set forth in comprehensive reports. These reports ... concur in the view that the segregation of residential, business and industrial buildings will make it easier to provide [fire protection]; that it will increase the safety and security of home life, greatly tend to prevent street accidents, especially to children, by reducing the traffic and confusion in residential sections, decrease noise and other conditions which produce or intensify nervous disorders, preserve a more favorable environment in which to rear children, etc. [47 S.Ct. 114, at 120 (1926).]
The Court recognized the power of the municipality to regulate land use within its jurisdictional borders, despite protest from the individual property owner that he suffered injury thereby.
The planning power basically involves the power to develop a comprehensive plan for future development and for the extension of public services and facilities to accommodate future growth. By planning capital outlays for streets, sewers, water mains, parks and other public facilities, the local government can direct growth because residential and industrial developers want to be sure that the necessary utilities and infrastructure will
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be available for their projects. Accordingly, they will construct projects in areas where public services and facilities will be provided, and avoid such areas where no services will be available.
III. The Statutory Framework in Colorado and Wyoming
This part of the paper focuses on the statutory framework creating county powers and limitations to control land use.
A. Colorado
In 1974, the Colorado General Assembly passed H.B. 1041 [Colo. Rev. Stat. § 24-65.1-101, et seq., (1978 Supp.)], as an amendment to the Colorado Land Use Act [Colo. Rev. Stat. § 24-65-101, et seq., (1973)]. This statute declares that it is state policy to encourage local governments to designate areas and activities of state interest, and control, through permits for development, land use in such areas so as to promote the public health, welfare and safety and to protect the environment [Colo. Rev. Stat. § 24-65.1-101 (1978 Supp.)]. H.B. 1041 delegates to local governments the authority for, and prescribes the methods for, dealing with each of the listed matters of state interest. These matters include, among others, site selection and development of new communities, arterial and collector highways and interchanges, solid waste disposal sites, mineral resource areas, natural hazard areas, and areas containing historical, natural or archaeological resources of statewide interest.
Mineral resource areas designated as areas of state interest are to be administered so as to permit mineral exploration and...
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