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VI. LEGAL ISSUES |
A. ENABLING AUTHORITY IN COLORADO
Before beginning to draft local statutes or regulations to protect habitat areas, Colorado's
local governments should always consider whether they have been granted enabling authority to
engage in specific activities by the state legislature. In Colorado, authority for most local government
programs comes from three possible sources:
In some cases, if the general intent to protect wildlife or natural resources is already present
in an existing land use control ordinance, it may be more effective to modify management and policy
objectives than to adopt a completely new ordinance to address wildlife concerns. In some cases, it
may be possible to amend administrative regulations to achieve the same result as a zoning change.
If numerous zoning amendments would be too time-consuming or difficult, another alternative might
be to wait until the current ordinance is revised for other purposes and then incorporate specific
language regarding wildlife protection at that time.
One of the most important concepts in local government planning and regulatory powers is the difference between a "home rule" government and a "statutory" government. In Colorado, a local government's land use authority within its jurisdictional limits depends on whether it is: (1) a home rule city, (2) a home rule town, (3) a statutory city, (4) a statutory town, (5) a home rule county, or (6) a statutory county. The Colorado Constitution provides that each Colorado town, city, or county may choose to become a home rule government. Colorado now has 75 home rule cities and towns and four home rule counties. The rest are statutory governments of one kind or another.(142)
In general, statutory governments have only those powers explicitly given to them by state law, and those grants of power are often narrowly construed.(143) Cities, towns, and counties that choose to exercise home rule powers may create their own charter, ordinances, and laws on "matters of local concern". The powers of home rule counties are set forth in more detail than those for home rule cities, and they may exercise their powers only in unincorporated areas of the county.
Although home rule governments may generally acquire broader powers than statutory governments, there are two important limitations on home rule powers. The first is that a home rule city, town, or county has the power to supersede state law only where the matter in question is of local concern. The Colorado general assembly and the courts divide governmental matters into three categories: (1) those of purely local concern, (2) those of statewide concern, and (3) those of mixed local and statewide concern. The lines between these categories are seldom clear. Whether a particular matter is of local, mixed, or statewide concern is often contested and is generally decided on a case-by-case basis. Both the state and local legislatures may regulate matters of mixed concern as long as there is no conflict between the enactments of the two levels of government, but if there is a conflict, state legislation will supersede local legislation.(144)
The second limitation is that home rule governments are bound by the provisions of the state statutes to the same extent as statutory municipalities unless and until they adopt charter or ordinance provisions creating different rules or procedures. If the home rule government has not adopted legislation on a particular matter, then the state statutes on that topic govern its powers.
Zoning has been determined to be a matter of local concern except in specific circumstances
where state statutes explicitly provide otherwise.(145) In the area of wildlife protection, Colorado has
clearly adopted a statewide system of protection administered by the Division of Wildlife, but it has
also empowered local governments to address wildlife and habitat issues through the "1041 powers"
discussed below. Therefore, protection of wildlife habitat would probably be held by the courts to
be a "mater of mixed state and local concern" in which local regulations will be upheld as long as they
are not inconsistent with state law.
2. STATUTORY PLANNING AND ZONING POWERS
Statutory cities and towns
Basic planning powers for statutory cities and towns are found in C.R.S. §§ 31-23-201 et. seq. All municipalities in Colorado are expressly authorized to create a planning commission, but are not required to do so. It is the duty of the planning commission to make and adopt a master plan for the physical development of the territory within the municipal boundaries. More particularly, the commission is directed to develop a master plan for the general purpose of "guiding and accomplishing a coordinated, adjusted and harmonious development of the territory within the municipality, which, in accordance with present and future needs, will best promote the public health, safety, morals, order, convenience, prosperity and general welfare ... " of the citizens.(146)
A city or town is also authorized to plan for areas outside of the boundaries of the municipality that the planning commission thinks are related to development within the city or town. Any master plan that purports to affect territory outside the municipal boundaries is subject to the approval of the city, town, or county with primary jurisdiction over that territory, however, and is subordinate to land use plans adopted by that government.(147) There is no requirement that cities or towns include wildlife habitat issues in their plans.
Under Colorado statutes, master plans are considered advisory only and not binding upon the zoning discretion of any legislative body.(148) In order to actually regulate the use of land in a binding way, the city needs to use zoning, subdivision, or other regulatory powers.
Zoning can be a powerful habitat protection tool at both the landscape level and the site level.
The basic zoning powers of cities and towns are described in C.R.S. §§ 31-23-301 et. seq., 31-15-401(p), and 31-15-501. Zoning is an aspect of a local government's "police power", which is the
power to regulate activities in order to protect the public health, safety, and general welfare. Those
terms are broad enough to encompass zoning to protect wildlife habitat. Statutory cities and towns
have only those zoning powers that the legislature has granted them, and are bound by state statutes
regarding zoning.(149) The legislature has granted Colorado cities and towns the authority to regulate
and restrict the height, number of stories, and size of buildings and other structures, the percentage
of a lot that may be occupied, the size of lots and open spaces, the density of population, the height
and location of trees and other vegetation, the location and use of buildings, structures and land, and
the uses allowed along any stormwater channel or basin designated and approved by the Colorado
water conservation board.(150) The provisions on regulating uses and structures, protecting trees and
vegetation, and controlling uses along any flood channel can all be used as authority to regulate land
for habitat protection. If other statutes provide higher standards for items governed by municipal
zoning regulations, then those higher standards govern.(151) Therefore, special regulations aimed
directly at wildlife can sometimes be used to create a higher level of protection for both animals and
habitat, provided that the statutory government can find authority for those regulations.
Statutory counties
Basic planning authority for statutory counties is found in C.R.S. §§ 30-28-101 et. seq. and C.R.S. §§ 30-28-128 et. seq. By now, every county in Colorado is required to have appointed a planning commission, at least for the purposes of adopting subdivision regulations. Technically, it is the duty of the planning commission to make and adopt a master plan for the physical development of the unincorporated territory within the county. Master plans are to be made for the general purpose of "guiding and accomplishing a coordinated and harmonious development of the relevant territory, which, in accordance with present and future needs and resources, will best promote the general welfare of the inhabitants" of the county.(152) State law does not require the adoption of a master plan before the adoption of a zoning regulation.(153) County master plans may explicitly show or include the general location and extent of forests, agricultural areas, flood control areas, and open development areas, but are not explicitly required to plan for either wildlife or habitat issues.
Colorado courts have determined that county master plans are advisory and are not binding upon the zoning discretion of any county or municipal legislative body.(154) To actually regulate the use of land, counties also need to rely on zoning, subdivision, or land use regulatory powers.
Just as in cities and towns, zoning can be a powerful tool to protect wildlife habitat at both the landscape and site scales. Basic county powers to engage in zoning are found in C.R.S. § 30-28-111 et. seq. The planning commission of any statutory county may develop a zoning plan including both text and map setting forth its recommendations regarding the regulation of the location, height, bulk and size of buildings and other structures, the percentage of lot that may be occupied, the sizes of lots and open spaces, the density and distribution of population, the location and use of buildings, structures, and land, and the uses permitted along any stormwater runoff channel or basin designated and approved by the Colorado water conservation board. Just as for cities and towns, "all regulations shall be uniform for each class or kind of building or structure throughout any district, but the regulations in any one district may differ from those in other districts".(155) The board of county commissioners must hold at least one public hearing before approving or disapproving the zoning plan. Upon adoption of the zoning plan, the county may regulate those matters covered by the plan in accordance with its provisions. It is important to note that the development of the zoning plan is the job of the planning commission, while its adoption is a legislative act of the county commission. Finally, if other statutes provide higher standards for items governed by a county zoning ordinance, then those higher standards govern.(156)
In the area of wildlife habitat, county zoning powers are subject to some potential limitations
imposed by the legislature. Counties with populations of more than 65,000 must adopt a plan for the
extraction of commercial mineral deposits and cannot adopt zoning inconsistent with the extraction
of those minerals, and such plan and zoning must also apply to the cities within their boundaries.(157)
Local governments should always check the county commercial mineral deposit plans and documents
and should try to minimize the number of conflicts between their designated habitat areas and areas
designated on a mineral extraction plan.
State regulatory schemes
The Colorado general assembly has also adopted two land regulatory schemes that could limit the ability to use zoning powers to protect habitat. First, the state oil and gas conservation commission has been granted authority to regulate the drilling of oil and gas wells in the state and to encourage the development of oil and gas resources. The Colorado Supreme Court has held that this means that local governments -- even home rule cities -- cannot prohibit all oil and gas drilling within their boundaries, but may still regulate the location of drilling activities in ways that do not usurp the authority of the oil and gas commission.(158)
Similarly, the Colorado Mined Land Reclamation Act governs the permitting of mining
permits throughout the state, but does not preempt local governments from all regulation in that field.
The Colorado Supreme Court has held that an applicant who has successfully obtained a mining
permit from the mined land reclamation board must still comply with local zoning regulations before
mining can proceed. Land designated as potentially having commercial mineral deposits need not be
rezoned to allow mining activities if site conditions or impacts make that use inappropriate, and a
denial of rezoning in that situation has been upheld against a challenge that it would exclude a legal
industry.(159)
3. STATUTORY SUBDIVISION POWERS
Subdivision powers are a powerful tool available for Colorado's local governments to control the creation of buildable lots at the landscape level and design and character of those lots at the site level. When used in concert with appropriate zoning, subdivision powers can help direct development away from important habitat areas or require sensitive incorporation of habitat areas into development.
The most important difference between the enabling authority for cities and counties is that counties are required to adopt and enforce subdivision standards, while cities are only required to do so if they have appointed a planning commission. In fact, however, most city and town governments with significant populations are currently using subdivision controls. The second most important difference is that counties are not currently allowed to regulate the division of land into parcels where each parcel will total 35 acres of more. Landowners can therefore avoid local regulation of land divisions by creating "large-lot subdivisions". When that occurs, however, the county may still exert some control over the use of the lots through traditional zoning powers, road access permits, and site plan review requirements, among others.
Basic authority for Colorado cities and towns to control the division of land and the creation of lots for development is found in C.R.S. §§ 31-23-212 et. seq. The county enabling and control statutes are found in C.R.S. §§ 30-28-110 and 133 through 137. Although the specific requirements for subdivision approval procedures and standards differ between cities and counties -- and the county enabling statutes are much more detailed -- the general approach in each case is the same.
The statutes describe both procedural and substantive requirements that must be met in order for statutory cities and towns to exercise subdivision control powers. In general, the statutory procedures call for a three stage process requiring the landowner to submit first a sketch plan, then a preliminary plat, and then a final plat. Different information and application materials are required at each stage. Applications are generally referred to related departments and agencies for comment, a public hearing is held before the planning commission and/or city council, and a decision is made to approve, disapprove, or approve the plat with modifications.
Colorado statutes generally also require that the proposed subdivision of land meet local standards controlling the physical characteristics of the site, soil and hazard conditions, lot areas, frontages, and layout, infrastructure design and quality, storm drainage design and quality, adequacy of water supply, street layouts and quality, land dedications or cash payments for park and school lands, and assurances that required site improvements will in fact be completed. Importantly, the statutes are broad enough to allow local governments to add requirements and detail specific to local needs, and many habitat concerns can therefore be incorporated into subdivision standards.
From the point of view of habitat protection, the authority to require land dedications during
the subdivision process is very important. Since there is explicit authority for local governments to
require land dedications for parks, it may be possible to designate wildlife habitat areas for dedication
as part of the new development. Local governments should be aware, however, that there has been
much recent litigation on the topic of land dedications, and that courts are increasingly requiring that
local governments be able to defend their requirements in light of the anticipated impact of the
proposed development. The test of appropriateness is whether the proposed development creates
wildlife impacts that they should be required to mitigate -- not whether their land contains wildlife
habitat that the local government would like to protect. This complex topic is discussed in more
detail in subsection E below.
4. 1034 POWERS: LOCAL LAND USE CONTROL
In 1974, the general assembly enacted the Local Government Land Use Control Enabling Act to "clarify and provide broad authority to local governments to plan for and regulate the use of land within their respective jurisdictions". Those powers are codified at C.R.S. §§ 29-20-101 et. seq., and are sometimes known as the "1034 powers" .
This act contains several broadly worded powers that may exceed the more specific local government planning powers that predated it, but the Colorado courts have been divided on the extent to which it grants local governments additional powers. On the one hand, the courts have held that the Act does not authorize local governments to ignore specific limits found in other statutes, and therefore does not authorize a local government to extend subdivision regulations to tracts of 35 acres or more.(160) On the other hand, the Colorado Supreme Court recently held upheld the authority of the City of Aspen and Pitkin County to regulate land through their innovative Growth Management Quota System based on 1034 powers.(161) Based on these cases, it appears that 1034 powers may be powerful authority for local governments to regulate in areas where other state legislation has not imposed explicit limits on their authority.
Two provisions of 1034 powers that are of particular importance for the protection of wildlife
habitat include the following:
"29-20-104. Powers of local governments. (1) Without limiting or superseding any power or authority presently exercised or previously granted, each local government within its respective jurisdiction has the authority to plan for and regulate the use of land by:
. . .
(b) Protecting lands from activities which would cause immediate or foreseeable
material danger to significant wildlife habitat and would endanger a wildlife species;
. . .
(h) Otherwise planning for and regulating the use of land so as to provide planned
and orderly use of land and protection of the environment in a manner consistent
with constitutional rights."
This language should support the adoption of specialized city, town, or county regulations to protect
wildlife habitat in ways that are not specifically prohibited or preempted by state statute.
5. 1041 POWERS: AREAS AND ACTIVITIES OF STATEWIDE INTEREST
The same year that it adopted the 1034 powers, the Colorado legislature also enacted a set of measures commonly known as the "1041 Powers". These powers are codified in C.R.S. §§ 24-65.1-101 et. seq., and grant local governments increased authority to adopt regulations controlling specific types of development and activity. The statute includes a detailed list of types of developments and activities that may have unusually large or broad affects on the surrounding area, and then allows local governments to adopt specific criteria to regulate specific aspects of those developments and activities.
"Areas of statewide interest" are defined to include mineral resource areas, natural hazard areas, certain areas containing historical, natural or archaeological resources, and areas around certain key facilities, such as airports, interchanges involving arterial highways, major public utility facilities, and mass transit terminals. "Activities of statewide interest" are defined to include the efficient utilization of municipal and industrial water projects and site selection and construction of major domestic water and sewage treatment systems, certain solid waste disposal sites, airports, mass transit terminals, arterial highways and interchanges, major public utility facilities, and new communities. There are some specific stated exceptions within these general categories.(162)
Under certain circumstances, local governments can designate areas or activities within their jurisdiction as matters of statewide interest. In addition, the statutes allow local governments to request the assistance of the Colorado department of local affairs to develop appropriate regulations. However, the powers of the state government under the 1041 statutes are very limited. The Colorado land use commission can request that a local government designate an area or activity, but cannot require it. In addition, the Commission can recommend changes to the local government's regulations, but cannot require changes or require that the local government actually enforce the regulations that it adopts.
Once an area or activity has been designated, the local government must establish development guidelines consistent with the basic minimum standards set forth in the acts -- but the local guidelines can be even stricter than the statutory minimums if the local government wishes. The guidelines established by local governments are then incorporated into permitting procedures for each designated area or activity.(163) Once a permit procedure has been established, anyone developing in the designated area or engaging in the designated activity must first apply for and receive a permit from the local government. Permit applications that do not demonstrate that the proposed development will comply with the guidelines must be denied by the local government.(164)
Since 1974, the general intent and constitutionality of House Bill 1041 has been discussed
and upheld in several cases.(165) One provision of 1041 powers has direct applicability to wildlife
habitat protection efforts. Understanding that provision requires reading several sections of the act
together, as follows.
"24-65.1-201. Areas of state interest as determined by local governments. (1) Subject to the procedures set forth in part 4 of this article, a local government may designate certain areas of state interest from among the following:
. . .
© Areas containing, or having a significant impact upon, historical, natural, or archaeological resources of statewide importance;
. . .
24-65.1-202. Criteria for administration of areas of state interest
. . .
(3) Areas containing, or having a significant impact upon, historical, natural,
or archaeological resources of statewide importance, as determined by the state
historical society, the department of natural resources, and the appropriate local
government, shall be administered by the appropriate state agency in conjunction
with the appropriate local government in a manner that will allow man to function
in harmony with, rather than be destructive to, these resources. Consideration is to
be given to the protection of those areas essential for wildlife habitat. Development
in areas containing historical, archaeological, or natural resources shall be conducted
in a manner which will minimize damage to those resources for future use.
24-65.1-104. Definitions pertaining to other areas and activities of state interest. As used in this article, unless the context otherwise requires:
. . .
(12) 'Natural resources of statewide importance' is limited to shorelands of major,
publicly owned reservoirs and significant wildlife habitats in which the wildlife
species, as identified by the Division of Wildlife of the department of natural
resources, in a proposed area could be endangered."
Before invoking 1041 powers for habitat protection, therefore, it would be wise for the local government to consult with the Division of Wildlife.
In addition, those portions of the 1041 powers dealing with "activities of state interests" can
also be of use to local governments in some circumstances. Whenever wildlife habitat is affected by
the construction of any of the following, Colorado's local governments can invoke 1041 powers and
may be able to exercise additional controls:
"24-65.1-203. Activities of state interest as determined by local governments. (1) Subject to the procedures set forth in part 4 of this article, a local government may designate certain activities of state interest from among the following:
(a) Site selection and construction of major new domestic water and sewage treatment systems and major extension of existing domestic water and sewage treatment systems;
(b) Site selection and development of solid waste disposal sites except those sites specified in section 25-11-203 (1), C.R.S., sites designated pursuant to part 3 of article 11 of title 25, C.R.S., and hazardous waste disposal sites, as defined in section 25-15-200.3, C.R.S.;
© Site selection of airports;
(d) Site selection of rapid or mass transit terminals, stations, and fixed guideways;
(e) Site selection of arterial highways and interchanges and collector highways;
(f) Site selection and construction of major facilities of a public utility;
(g) Site selection and development of new communities;
(h) Efficient utilization of municipal and industrial water projects; and
(I) Conduct of nuclear detonations."
The Colorado general assembly has enacted specific statutory authority for each municipality
in the state to protect the quality of its water supply. In particular, CRS § 31-15-707, reads as
follows:
"(1) The governing body of each municipality has the power . . .
(b) To construct or authorize the construction of such waterworks without their
limits and, for the purpose of maintaining and protecting the same from injury and
the water from pollution, their jurisdiction shall extend over the territory occupied
by such works and all reservoirs, streams, trenches, pipes, and drains used in and
necessary for the construction, maintenance, and operation of the same and over the
stream or source from which the water is taken for five miles above the point from
which it is taken and to enact all ordinances and regulations necessary to carry the
power conferred in this paragraph (b) into effect."
Whenever important wildlife habitat coincides with areas near the source of a Colorado town or city
water supply, therefore, this statute may give the local government added authority to control the
use of the land. If proposed development of the land would threaten the quality of the local water
supply and also compromise habitat areas, the city or town may be able to use this authority to solve
two problems at the same time.
7. ENABLING AUTHORITY FOR IGAs
The Colorado general assembly has adopted statutes both encouraging intergovernmental cooperation and providing a legal basis for intergovernmental agreements. The encouragement is found in C.R.S. §§ 29-1-201 et. seq. Under the terms of those statutes, all local governmental entities in Colorado are encouraged "to make the most efficient and effective use of their powers and responsibilities by cooperating with and contracting with" other local governmental entities. Local governmental entities are empowered to contract with one another to provide any function, service or facility that each entity is lawfully authorized to provide. Such contracts may provide for the joint exercise of power to provide the function, service or facility or may establish a separate legal entity to do so.(166)
The specific legal basis for intergovernmental agreements on land use issues is set forth in
C.R.S. §§ 29-20-105 and 107. More specifically, "local governments are authorized and encouraged
to cooperate or contract with other units of government. . . for the purposes of planning or
regulating the development of land including, but not limited to, the joint exercise of planning,
zoning, subdivision, building, and related regulations." In addition, "local governments may provide
through intergovernmental agreements for the joint adoption by the governing bodies, after notice
and hearing, of mutually binding and enforceable comprehensive development plans for areas within
their jurisdictions." Finally, "a comprehensive development plan may contain master plans, zoning
plans, subdivision regulations, and building code, permit, and other land use standards, which, if set
out in specific detail, may be in lieu of such regulations or ordinances of the local governments."(167)
This language indicates that joint comprehensive development plans can be made mutual binding and
enforceable, rather than merely advisory.
Development impact fees are charges imposed on a new development to collect funds to address or mitigate the impacts of that new development on the community. Throughout the United States, impact fees are frequently imposed to collect all or a part of the cost of serving a new development with water, sewer, streets, and sometimes park lands. Usually, development impact fees are collected when a building permit or certificate of occupancy is issued.
While there is no general statutory authority for development impact fees in Colorado, the courts have found in favor of such authority in several instances. To find authority to impose impact fees, local governments in Colorado have looked to either home rule authority or other specific enactments of the legislature. Counties, for example, have been granted explicit powers to require dedication of property or fees-in-lieu for parks, schools sites, and storm drainage detention facilities during the subdivision approval process.(168) To the degree that such areas have wildlife habitat value, or to the degree that habitat criteria can be incorporated into the procedures for designating such areas, this specific grant of authority can help preserve habitat. No similar specific provisions for school, park, and drainage dedications currently exist for statutory cities and towns.
Home rule municipalities also enjoy somewhat broader powers than statutory governments
to impose exactions. Thus, if the city's charter or ordinances provide for the imposition of an impact
fee, sufficient authority for the fee may exist. The home rule municipality may not, however, exceed
the power or authority conferred by its own charter or ordinances.
Regulations designed to protect habitat areas should include clear statements of the intent
of the regulation. Where specific enabling statutes have not been enacted, the validity of an
ordinance sometimes turns on whether its stated purpose is one that is authorized under some
general land use law of the state. For statutory cities and counties, care should be taken to clearly
articulate the purpose of the regulation, and to tie it to specific language in the state planning,
zoning, subdivision, 1034, or 1041 statutes.
C. DUE PROCESS AND A RATIONAL BASIS
Local governments interested in adopting regulations to protect wildlife habitat areas should
be careful that both the regulation and the process by which it is adopted comply with constitutional
requirements for due process. In addition, they should make sure that there is a rational connection
between the goal that they want to achieve and the techniques that they choose to pursue it.
1. PROCEDURAL AND SUBSTANTIVE DUE PROCESS
The 14th Amendment to the U.S. Constitution states: "nor shall any state deprive any person of life, liberty, or property, without due process of law." A similar standard of conduct applies to the federal government's actions because of similar language in the 5th Amendment. Article II, § 25 of the Colorado constitution picks up this theme when it states that "no person shall be deprived of life, liberty, or property without due process of law." In practice, the concept of due process is sometimes divided into "procedural due process" and "substantive due process".
Procedural due process concerns the mechanisms by which the local government adopts the regulation in question. The three most important elements of procedural due process are (1) what kind of notice is required to the public, (2) what type of a hearing is required, if any, and (3) what principles shall guide the decision making to ensure that it is fair and informed.(169) Frequently, Colorado statutes or the home rule charter of a city, town, or county will state what type of notice is required, whether a hearing is required, and if so, what type of hearing. For example, the state enabling acts for zoning and subdivisions of land cited earlier require both notices and hearings before adoption of a new regulation applicable to land.
Local governments should be aware, however, that the procedural due process requirements may be higher when they are considering the rezoning, subdivision, or regulation of a specific parcel or parcels of land than when they are adopting a text or map applicable to the community in general. Actions related to specific pieces of land are often termed "quasi-judicial" acts of government, while the making of general laws is referred to as a "legislative" act. Governments are often held to higher standards regarding notice, hearings, record-keeping, official findings, and sometimes cross-examination and rebuttal, when they act quasi-judicially. Since many overlay districts, rezonings, subdivision approvals, and development agreements affect specific parcels of property, Colorado's local governments should be particularly careful to abide by all required procedures when adopting or approving them. In recent years, one of the most common techniques used to challenge a new governmental regulation or land use approval has been to find a procedural flaw in the adoption process.
In addition, local government officials should be careful to make fair and informed decisions on the regulations proposed for adoption. Members of planning commissions, county commissions, or town or city councils with any interest in the property that would be affected by a quasi-judicial action should be careful to let that be known at the start of the meeting and should generally leave the room and avoid taking part in the discussion or voting on the matter. In some instances, where the connection with the land in question is remote or indirect, merely disclosing the matter may be enough. A general rule is that any potential conflict of interest, no matter how remote, should be disclosed, and that the city or county attorney can then provide advice on whether to abstain from discussion and voting.
Another general rule is to avoid talking with either the proponents or opponents of a
particular site-specific regulation before the hearing. One hallmark of fair decision making about a
specific person's property is that the decision is based on testimony that is heard by all sides at the
same time, so that there is an effective ability to question assumptions and mis-statements made by
either side. The prohibition on discussing the substance of proposed regulations has generally been
held not to prohibit discussing the matter with city or county staff members, however. In addition,
when discussing a general policy or a legislative act applicable to a wide class of properties or
people, conversations between the public and decision makers are usually allowed.
2. A RATIONAL BASIS FOR DECISIONS
In contrast to procedural due process, substantive due process involves the rationality of the
proposed decision, and requires that the regulation be rationally related to the goal that the
community wants to achieve. Constitutional principles of substantive due process are designed to
weed out cases where the proposed regulation could not help to achieve the desired goal even if it
was successful. While most local government actions meet this test, there are some well-known
cases that have failed to meet it. In 1987, for example, the U.S. Supreme Court considered the case
of a regulation requiring that a beachfront lot owner provide an easement along the beach in front
of his house as a condition of enlarging his house. The court invalidated the requirement because
it found that the easement would promote access along the beach, while the stated goal of the
regulation was to mitigate the burden that the larger house would place on access to the beach.
Even though access along the beach might be a good thing, it could not achieve the stated goal of
the ordinance, and therefore failed to meet the requirements of substantive due process.(170) Careful
drafting of proposed regulations and attention to those local land use controls endorsed by the state
legislature can almost always avoid a successful substantive due process challenge.
D. AVOIDING VAGUE REVIEW STANDARDS
A wildlife habitat protection ordinance must establish sufficient standards against which the zoning authority's action can be measured. An ordinance that lacks sufficient standards vests unreviewable discretion in those who must enforce the regulation and may be held invalid because it is so vague that it violates due process or because it improperly delegates legislative power.(171) One general rule is that a land use regulation must be sufficiently explicit so that a reasonable landowner can understand what is required to comply with the regulations and plan his or her land use accordingly.(172) Local regulations should use clear and concise language and should define terms so that the reader is left in little doubt as to what is required or intended.
One good example of a wildlife protection regulation with clear and defined standards comes
from Summit County. In October 1994, Summit County adopted its Wildlife Habitat Overlay
District, which contains detailed language about what the planning commission and the board of
county commissioners may or shall do in different circumstances. For example:
"The Planning Department shall incorporate the comments and recommendations
received from the Division of Wildlife in the staff report to the Board of County
Commissioners. The Board of County Commissioners shall give consideration to
whether the proposal protects wildlife habitats and wildlife species from the
significant adverse impacts of development. The Board of County Commissioners
may give consideration to specific measures in the proposal that meaningfully
mitigate adverse impacts on wildlife habitats and species. The Board of County
Commissioners shall give special consideration to wildlife habitats which are
determined by the Colorado Division of Wildlife to be of unique or critical value.
The Board of County Commissioners may require special conditions or modifications
of a proposal, or may deny a proposal in cases where the significant adverse impacts
of a development cannot be adequately mitigated, resulting in significant adverse
impact on wildlife habitat and/or wildlife species in the County."(173)
The ordinance also defines a "significant adverse effect" on wildlife by using defined terms
for "impacts on wildlife species", "impacts on wildlife habitat", "impacts on wildlife movement
patterns/displacement and adaptation of wildlife populations", "uniqueness of habitat and species to
Summit County", and "cumulative impacts". Each definition in turn requires consideration of up to
seven different factors, each of which is defined in detail. For example:
". . .the Planning Commission and Board of County Commissioners shall consider
the following factors in determining whether or not a significant adverse impact on
wildlife habitat or wildlife species in the County may occur as a result of a proposed
development and the improvements necessary to serve it:
. . .
B. Impact on wildlife habitat: Elimination, reduction, and/or fragmentation of
wildlife habitat to the point that the viability of an individual species is threatened in
the County and the diversity of wildlife species occurring in the County is reduced.
Assessment of significant adverse impact should be based on the following factors:
1. The amount of vegetation/habitat removal and/or alteration within the development site.
2. The amount of habitat of similar type and quality within the development site that remains contiguous.
3. The existing and proposed amount of lot coverage.
4. The existence of contiguous habitat of similar type and quality on adjoining land.
5. Mitigation efforts that directly address the negative effects of the proposed land use on wildlife habitat."
Other suggestions for drafting clear and defensible standards are to list the types of habitat or vegetation to be protected and to list the size of trees or vegetation that are big enough to provide effective food sources or cover.
The need for clear standards is well illustrated by experience in communities that have adopted tree and vegetation protection ordinances. Such ordinances have been upheld against claims that their standards were too vague in cases where terms like "significant adverse impact" are defined and tied to effects on water tables and noise(174) and where limitations on tree removal were defined in terms of leaving behind a "well-distributed stand of trees" and "avoiding single openings greater than 7,500 square feet in the forest canopy"(175). On the other hand, a community that included a requirement for "harmonious" development without adopting criteria, standards, or definitions to guide the reader about what "harmonious" means in a particular context found that its regulations were overturned as overly subjective and vague.(176) One good guide to drafting defensible designation and review criteria is to remember the purposes behind the constitutional protections against vagueness -- to ensure that the person reading the ordinance can tell what it requires, and to enable a court to review the record and see if the local government really enforced the standards adopted by the county commissioners or city council. Standards that are too vague to achieve these goals may fail judicial scrutiny.
E. THE TAKINGS ISSUE AND HOW TO AVOID IT
Another important concern for communities that intend to protect important wildlife habitat is the so-called "takings" issue. The takings issue arises in response to either a development regulation or an exaction of land or money. "Regulatory" takings claims occur in response to regulations addressing permitted land uses, densities, heights, setbacks, or other development criteria. "Exaction" takings claims occur when the government has required that the landowner dedicate land or give money to the government as a condition of development approval.(177)
1. REGULATORY TAKINGS
In order to evaluate whether a proposed wildlife habitat protection ordinance might constitute
a regulatory "taking", the local government should try to answer the following three questions.
What is the character of the government action?(178)
Reasonable Economic Use of the Property
Land use regulations must generally leave the owner of the land with a reasonable economic use of the property (with minor exceptions for situations where the only reasonable economic use is also a public nuisance). To carry out this test, the courts often measure the decrease in property value before and after the regulation is applied. Most courts have typically required an almost total wipeout of value before they find a taking. The mere fact that a habitat protection regulation will seriously reduce the value of the owner's property does not by itself create a legal taking.(179)
In addition, courts sometimes focus on whether the landowner is left with any "reasonable economic use" of the property. Zoning or subdivision controls that restrict the use of land in order to preserve habitat must still allow for some reasonable economic use of land. Often, the continued availability of the land for farming or ranching will fulfill this requirement, and several courts have upheld strict floodplain and wetlands regulations because an owner is able to pursue farming and recreational uses that could produce a reasonable economic return.
Regardless of whether the court focuses on the extent of the diminution in value or the existence of a remaining economic use of the land, there are no hard and fast numerical formulas to determine when a taking has occurred. It is a question that must be decided on a case-by-case basis depending on the facts of each situation.
The leading U.S. Supreme Court case involving economic use of the property is Penn Central Transportation Co. v. City of New York.(180) In that case, the owner of Grand Central Station in New York wanted to build an office tower over the station, and such towers were prohibited by the city's designation of the station as a historic landmark. Although the city would allow some of the unused density on the site to be transferred for use on surrounding properties, the railroad challenged the restriction on the grounds that it denied them the economic use of the terminal site. The Court held for the city, noting that the constitutional protection of reasonable economic use does not mean maximum economic use. The Court pointed out that the railroad already had the reasonable economic use of the parcel as a train station, and that the transferability of unused density further expanded the economic use of the property. It concluded that in order to be a compensable taking, a regulation would need to have "nearly the same effect as the complete destruction of the property rights."
The case of Glisson v. Alachua County, Florida(181), shows how the principles of the Penn Central case have been applied in the case of environmental protections. In this case, the government had conducted an exhaustive study of an environmentally sensitive wetland area surrounding a state historic site and had then enacted a series of development regulations for the area. The regulations included protection of existing vegetation, a five acre minimum lot size, a requirement that all but one acre of each lot remain undisturbed, and clustering provisions allowing for the transfer of unused density to development sites outside the area. Several landowners challenged the regulations on the basis that they had already expended substantial money to get development approvals, and that their development was being restricted to create a benefit for the public as a whole. The Florida courts found for the county government, stating that the regulations allowed for the continuation of existing uses, that variances and transfers were available, and that there had not been a denial of all economically viable uses of the property.
One example of a regulation that does violate constitutional protections would be a restriction prohibiting the construction of any permanent structure for commercial or residential purposes. In Lucas v. South Carolina Coastal Council,(182) the U.S. Supreme Court considered a parcel of ocean front property where the state government had prohibited all permanent structures for living or working because of hurricane risks. The owner challenged the restriction, pointing to the fact that the lots on either side were developed with homes, and claiming that the effect of the regulation was the same as an outright condemnation of the property. The court agreed with the owner and required compensation. The Lucas case presents an unusual situation, however, since it is rare for land use regulations to prohibit all permanent structures or uses.
In addition, some courts have focused attention on regulations that rigidly divide parcels into "development" and "no development" zones, and have invalidated those regulations when it appears that they deny those in "no development" zones the reasonable economic use of their property. This is true even in cases where the regulation allows the transfer of development rights from one area to another if it appears that the "no development" landowners may have practical difficulties in taking advantage of the transfer provisions.(183) Communities drafting habitat protection programs should be particularly careful to avoid inflexible designations of habitat areas that prohibit all development in those areas.
Reasonable, Investment-Backed Expectations
Even if a land use regulation does not create a very substantial reduction in the landowner's property values, and even if it leaves the landowner with reasonable economic uses of the land, it may be held to be a taking if it interferes with the landowner's reasonable investment-backed expectations. For example, if a landowner had received governmental permission to develop a private resort with trails through habitat areas and had actually built the resort and trails, and the local government later decided that trails should not be built through those habitat areas and refused to grant an occupancy permit for the building, the courts might well find the local government's actions to be unconstitutional. In order for a landowner to claim interference with reasonable, investment-backed expectations, however, the landowner must show that:
The Character of the Government Action
In considering the character of the governmental action, courts have tended to focus on
government regulations that look like efforts to obtain public open space or require public access to
property when there is no relationship between needs created by a project and the amount of land or
access being demanded. For example, the Washington Supreme Court struck down a local greenbelt
protection ordinance, because it appeared that the city ran out of funds for greenbelt acquisition and
then resorted to a regulatory program to accomplish the same ends.(184) Government actions that aim
at regulating development for valid reasons will generally receive greater deference than actions that
look like indirect attempts by the government to acquire property without paying for it. Colorado's
towns, cities, and counties should be particularly careful that any regulations they draft that limit
development or activity in certain areas not look like attempts to acquire those areas as public open
space. In order to avoid this pitfall, the community should always be able to answer the questions:
2. TAKINGS THROUGH EXACTIONS
The law of exactions concerns the relationship between a proposed development, a requirement that land be dedicated or money be paid as a condition of development, and the use of that land or money. Many exactions are legal, and Colorado statutes explicitly allow local governments to condition development approvals on the dedication of land or payments of money in many circumstances. However, an exaction may be ruled illegal if goes beyond the authority of the local government or fails other constitutional tests. While the law in this area continues to evolve, the general rule holds that there must be a reasonable relationship between the required land dedications or cash payments and an actual impact created by a project. Furthermore, the land dedication requirement needs to be roughly proportional to the need created by a development. Impact fees probably also need to meet that standard. When cash payments are in the form of impact fees, the revenues collected must be segregated and earmarked for land purchases or for the construction of facilities to serve new development, and must never be commingled with general tax funds.(185)
The most recent exaction issue considered by the U.S. Supreme Court occurred in 1994, in
the case of Dolan v. City of Tigard.(186) In the Dolan case, the owner of a hardware store wanted to
expand the store and the city government imposed a requirement that the store dedicate lands for a
storm drainage ditch and a trail along that ditch. The Supreme Court decision explicitly upheld the
value and legality of municipal planning to prevent floods and ensure adequate transportation, but
held that when the exaction was part of a site-specific requirement -- as opposed to a jurisdiction-wide dedication standard -- the city needed to make an "individualized determination" that the
required land dedications were "roughly proportional" to the development's impact on storm drainage
and transportation systems. The government could not impose the full burden of a trail land
dedication upon the landowner just because its land happened to be in the city's preferred location
for a trail. However, if the expansion of the store would directly or indirectly create additional road
and trail traffic sufficient to justify construction of a trail to alleviate congestion, then the exaction
would be legal. Although the court did not require mathematical accuracy, it did require that the
government be prepared to document the fairness of the required dedication. Similarly, Colorado's
local governments should be prepared to document the "rough proportionality" of required habitat
exactions based on habitat impacts. Fees- in-lieu of dedications may be subject to the same
requirements.
3. ADMINISTRATIVE RELIEF PROVISIONS
Before takings claims can be filed, however, the landowner is required to pursue local administrative remedies that could prevent or mitigate the degree of the hardship involved. In many cases, local government ordinances or regulations allow the landowner to apply for a variance, exception, exemption, rezoning, or cluster development approval as a way of preventing unnecessary hardship, and the courts expect that the landowner will take advantage of those avenues of administrative relief. This requirement for the "exhaustion of administrative remedies" was upheld by the U.S. Supreme Court in Agins v. Tiburon(187), and has resulted in the dismissal of many potential takings claims.
In addition to standard zoning variance provisions, some cities and counties are responding to the takings issue by crafting administrative relief provisions tied to site-specific information and available resources. Such provisions allow a landowner to apply for an exemption or to suggest an alternative development pattern when, due to unusual circumstances, the strict application of the regulation would create a denial of all economic use, a very substantial hardship, or an interference with a reasonable investment-backed expectation. Application requirements can be drafted to elicit economic information about the parcel, including how much the owner paid for it, how much investment has been made in the land, the types of uses to which it has been put, any past offers to buy or lease the parcel, and similar items. This economic information can help the local government to evaluate the degree of hardship to the landowner, what options the landowner has to mitigate those hardships, and how the case might appear to a judge if a lawsuit is filed. Administrative relief provisions allow the local government to evaluate a potential "takings" claim before it is filed in court, and to grant local relief or an exemption from the regulation if it is warranted.
ENDNOTES TO CHAPTER VI
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