STATUTORY AND HOME RULE POWERS

• Jurisdiction: Colorado

B. STATUTORY AND HOME RULE POWERS

• Colo. Const. art. XX, § 6 and art. XIV, § 16
• C.R.S. §§ 31-2-201 to 31-2-225
• C.R.S. §§ 30-35-101 to 30-35-103, 30-35-201

One of the most important concepts in Colorado planning and development law is the difference between a "home rule" government and a "statutory" government. In Colorado, a local government's land use authority within its jurisdiction depends on the government's classification. There are four relevant classifications:

1) Home rule cities and towns;
2) Statutory cities and towns;
3) Home rule counties; and
4) Statutory counties.

Of Colorado's 272 incorporated municipalities, 99 are home rule municipalities, two (Denver and Broomfield) are constitutional home rule consolidated city-counties, 11 are statutory cities, one is a territorial charter city (which functions much like a statutory city), and 159 are statutory towns. Sixty of Colorado's 64 counties are statutory counties, while two (Pitkin and Weld) are home rule counties.

The distinction is important because statutory governments have only those powers explicitly or impliedly given to them by state statute, and those grants of power are often narrowly construed. If there is no explicit or implied grant of power, the government generally cannot engage in the activity.³ Therefore, a planning practitioner working in a statutory city, town, or county should constantly be asking the question, "Where in the state statutes does it say or imply that the local government can do that?"

The Colorado Constitution provides, however, that each Colorado town, city, or county may choose to become a home rule government.⁴ A municipality choosing home rule has the power to create its own charter, ordinances, and laws to extend to all of its local and municipal matters, including zoning and subdivision.⁵ Home rule counties have powers similar to their home rule municipal counterparts when it comes to designating who will perform certain county government functions, i.e., the structure of their local governments. But when it comes to substantive powers, home rule counties (other than the constitutional home rule counties of Denver and Broomfield) are bound by the same statutes governing statutory counties and have only limited authority to expand their powers. In addition, the potential powers of home rule counties are set forth in more detail than those for home rule municipalities, and they may exercise their powers only in unincorporated areas of the county.⁶ Therefore, a planning practitioner working in a home rule city, town, or county should constantly be asking the question, "Where in our charter and ordinances does it say the local government can do that, and is there any state law that says otherwise?"

Although home rule governments may generally acquire broader powers than statutory governments, three important limitations on home rule powers must be kept in mind.

First, unless and until home rule municipalities adopt charter or ordinance provisions that differ from those in a state statute, they are as bound by the provisions of the statute as statutory municipalities. On subjects where a home rule municipality or county has not yet acted to deviate from state statutes, practitioners must be familiar with state statutes addressing the topic. For municipalities, this requires a careful reading of Colorado statutes, particularly C.R.S. § 31-1-102. The text of that section clarifies that while there is a general presumption that state municipal statutes apply to home rule municipalities (at least until they adopt different provisions), that presumption will not apply if the text of a particular statute indicates that it is intended to apply to a limited class of municipalities. A 2005 decision of the Colorado Court of Appeals clarified that the language of C.R.S. § 31-1-102 was not intended to limit the reach of home rule powers.⁷

Second, a home rule jurisdiction must follow its own procedures and standards to regulate land use, or the act may be invalid.⁸ Once a rule, standard, or procedure has been adopted, it must be followed until it is amended or repealed. If a local government wants to change some of its regulations, it must do that formally before applying the new regulations to any specific case.⁹ Material deviations from adopted procedures or failure to adopt or apply adequate decision-making criteria may invalidate a...