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Harmonizing planning and management of land use and affordable housing in Colorado after Telluride

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Title:
Harmonizing planning and management of land use and affordable housing in Colorado after Telluride is there a better way?
Creator:
Doyle, Benedict C
Publication Date:
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English
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cii, 85 leaves : ; 28 cm

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Subjects / Keywords:
Land use -- Government policy -- Colorado ( lcsh )
Housing policy -- Colorado ( lcsh )
Housing policy ( fast )
Land use -- Government policy ( fast )
Colorado ( fast )
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bibliography ( marcgt )
theses ( marcgt )
non-fiction ( marcgt )

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General Note:
Department of Urban and Regional Planning
Statement of Responsibility:
by Benedict C. Doyle.

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|University of Colorado Denver
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Auraria Library
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All applicable rights reserved by the source institution and holding location.
Resource Identifier:
320082169 ( OCLC )
ocn320082169
Classification:
LD1193.A78 2008m D69 ( lcc )

Full Text
HARMONIZING PLANNING AND MANAGEMENT OF LAND USE AND
AFFORDABLE HOUSING IN COLORADO AFTER TELLURIDE:
IS THERE A BETTER WAY?
by
Benedict C. Doyle
B.S., U.S. Air Force Academy, 2000
A thesis submitted to the
University of Colorado Denver
in partial fulfillment
of the requirements for the dual degree of
Juris Doctor (J.D.) & Master of Urban and Regional Planning (M.U.R.P.)
2008


This thesis for the Juris Doctor & Master of Urban and Regional Planning
dual degree by
Ben Doyle
has been approved
by
Nestor Davidson


Doyle, Benedict C. (Juris Doctor and Master of Urban & Regional Planning)
Harmonizing Planning and Management of Land Use and Affordable Housing in
Colorado After Telluride: Is There a Better Way?
Thesis directed by Professor Brian Muller
ABSTRACT
Using the recent case of Town of Telluride v. Lot Thirty-Four Venture L.L.C.
as an indicator of current confusion on how land use and affordable housing should
interact in Colorado, this thesis argues that Colorado law and policy on affordable
housing provision must be reformed to better address workforce housing needs.
Reform can and should happen without abandoning the states admirable longtime
focus on careful management of our uniquely spectacular natural resources. Indeed,
reform should synchronize regional planning and management of housing and land
use.
The thesis begins by describing the current shortage of affordable housing in
Colorado. It then briefly describes current state law and policy on housing and land
use. Next, it argues that the state should reallocate authority for housing to counties
as the best surrogates for regions. Because counties are political subdivisions of the
state, this reallocation of authority would clear up much of the preemption difficulty
seen in Telluride. If such a major restructuring proves unworkable, the thesis argues,
more localities should better employ three existing tools: multi-jurisdictional housing
authorities, intergovernmental agreements, and traditional authority to regulate land
use. The thesis concludes with specific recommendations for state statutory reform.
This abstract accurately represents the content of
recommend its publication.
Signed
Brian Muller


ACKNOWLEDGMENTS
Im very grateful to Nestor Davidson, James van Hemert, and Brian Muller
for their efforts as professors, practitioners, and thesis advisors. Im also
grateful to Bill Shutkin at the Leeds School of Business for helpful guidance
on structure and Michelle Krezek at Boulder County for volunteering to be a
reader. Any errors of fact or logic are, of course, mine.


DEDICATION
For Carrie.


TABLE OF CONTENTS
DEFINITIONS...............................................l
CHAPTER
l. INTRODUCTION........................................3
a. The problem: The comers of Colorado most famous for good land use
planning are now some of the least affordable from a housing
perspective. Confusion exists in local governments and courts about
how the two endeavors should interact, as seen in Telluride.
b. Thesis: Housing and land use are both regional problems that affect
one another that should, therefore, be managed regionally in
Colorado, in sync with one another.
c. Methodology
d. Scope
2. BACKGROUND..........................................................9
a. Theres an affordable housing shortage in Colorado.
b. Land use regulation can affect housing affordability, but if designed
with affordable housing goals in mind it doesnt have to cause a
community to become de facto exclusionary.
c. Strong state policy advocating affordable housing provision already
exists. The same goes for land use control. But the two are not
simultaneous, linked endeavors under state law.
3. ARGUMENT..........................................................27
a. Telluride highlights confusion on whether affordable housing and
land use are matters of mixed state and local concern in Colorado.
Both are. Both should be.
b. Affordable housing and land use are both regional problems that
affect one another. Thus, both should be planned for and managed
regionally in Colorado, in sync with one another.
vi


c. The best way to shift to a system of synchronized planning and
management for housing and land use is for the state to allocate
primary responsibility for housing to county governments.
i. Counties are the best surrogate for the region, geographically,
politically, demographically, and institutionally.
ii. Counties have a significant existing governmental
infrastructure that, if authorized and funded, could effectively
plan and manage housing.
iii. Indeed, in a state with as few urban centers and urban
problems as Colorado, arguably everything municipal housing
authorities do could be done by a county authority at
significant administrative cost savings, increased efficiency,
and without impacting customer service.
iv. Allocating more authority to plan and manage affordable
housing at the county level would also unravel the preemption
entanglements seen in Telluride.
d. Of course, there will be challenges in moving towards a regional model
of housing provision.
i. Although temporary difficulties, the transition from local to
regional programs, policies, assets, debts, employees, and so
forth will be significant.
e. If the challenges to a major restructuring at the state level that
requires counties to take the lead local role in housing provision in
tandem with their regional land use planning efforts prove
insurmountable, there are several mechanisms under existing
Colorado law to better plan for and manage housing in conjunction
with land use on a more regional basis.
i. Tool 1. Multi-jurisdictional housing authorities.
ii. Tool 2. Intergovernmental agreements on land use and
housing.
iii. Tool 3. Innovative use of the traditional power to regulate land
use in furtherance of affordable housing goals.
Vll


4. CONCLUSIONS
73
a. Colorado legislators and courts should clarify that (1) both land use
and affordable housing are matters of mixed state and local concern,
and (2) in future, where conflicts arise between state and local laws, or
between state statutes, housing should be declared to be the dominant
state interest.
b. Even though housing and land use are almost always intertwined in
the real world, the two are not directly enough linked under Colorado
law, despite strong state policy in favor of both. The two should be
synchronized on a regional (county) level.
i. The county planning act should be amended to require
counties to plan for affordable housing in their region.
ii. The state housing authority acts should be amended to abolish
municipal housing authorities and shift primary responsibility
for housing to counties qua regions.
iii. Failing this, state law should require cities and counties to
work together to manage housing, either by establishing a
multi-jurisdictional housing authority or by entering into
intergovernmental agreements on, e.g., federal funding
applications and section 8 voucher management. Joint
housing planning should occur in tandem with joint land use
planning.
ENDNOTES
76


DEFINITIONS
Affordable housing : decent quality housing that low-income households can occupy
without spending more than 30% of their income.1
AMI: area median income, as determined annually by HUD, split up into various
categories for family size and number of bedrooms.
APCHA: Aspen/Pitkin County Housing Authority.
CRS: Colorado Revised Statutes.
Development: any construction or activity which changes the basic character or the
use of the land on which the construction or activity occurs.2 3
Extremely low income household: one earning less than 30% of AMI.
Growth: changes in population that impact land use, infrastructure development,
and the surrounding environments
Growth control: specific regulatory practices aimed at deliberately slowing or
halting growth within a locality or region ... [including] building moratoriums,
building permit caps, population growth caps, and severe down-zoning of densities to
prevent significant additional growth ... much more restrictive than growth
management.4 5
Growth management: specific regulatory practices aimed at influencing future
growth so that it occurs in a more rational manner than it would without overall
planning ...[including] density, availability of land, mix of land uses, and timing of
development... it seeks to accommodate growth sensibly, not to limit or prevent it.s
1 Anthony Downs, Growth Management and Affordable Housing: Do They
Conflict? 3 (Anthony Downs, ed., Brookings Institution Press 2002).
2 Modeled on the definition in COLO. REV. STAT. (hereinafter CRS) § 24-65.1-102(1).
3 CRS § 24-32-3202(6). Growth in population and land consumption are often
correlated with economic growth, too.
4 Downs, supra note 1, at 3.
5 Id. at 2-3. The present direction of land use planning and control law is its
reformulation to fit and serve growth management. Julian C. Juergensmeyer &
Thomas E. Roberts, Land Use Planning and Development Regulation Law § 1.2
1


Housing wage: a term coined by the National Low Income Housing Coalition used to
estimate the hourly wage necessary to afford fair market rent.6 7
Land use planning: guiding and accomplishing a coordinated, adjusted, and
harmonious development which, in accordance with present and future needs and
resources, will best promote the health, safety, morals, order, convenience,
prosperity, or general welfare of the inhabitants. 7
Locality / local government / municipality : a town, territorial charter city, city, or
county, home rule or statutory.
MJHA: multi-jurisdictional housing authority, as described by CRS § 29-1-204.5.
Self-sufficiency standard: measures how much income a family needs to adequately
meet their basic needs without public or private assistance for 70 different family
types in each of Colorados 64 counties.8 9
Sprawl: low-density peripheral growth that includes new subdivisions that leapfrog
far beyond existing settled areas onto vacant or agricultural land 9; development that
relies on the almost exclusive use of private automobiles for transportation; the
control of land use by fragmented and relatively small local governments; and the
lack of even moderately coordinated land use planning among communities.10
Very low income household: one earning less than 50% of AMI.
Workforce housing: housing for those earning between 50-80% of the AMI, often
policemen, nurses, teachers, and the like.
(2d ed. 2007). All land use planning concepts can be used as growth management
tools. Id.
6 See National Low Income Housing Coalition (hereinafter NLIHC), Out of Reach
2007-08, available at
http://www.nlihc.org/oor/oor20o8/data.cfm?getstate=on&state=CO.
7 CRS § 30-28-107.
8 Colo. Ctr. on Law & Policy, Fact Sheet: Poverty in Colorado August 2008,
http://www.cclp0nline.org/pubfiles/P0vertyFactSheet_Aug2008.pdf.
9 DOWNS, supra note 1, at 1.
10 Id.
2


CHAPTER 1. INTRODUCTION
The problem
In 1994, Time magazine reported that in Americas tourist boomtowns, low
wages and high rents are leaving the working class out in the cold.11 Facing a
housing affordability crisis, the Town of Telluride enacted an ordinance imposing a
mitigation requirement on most new real estate development in town.12 The
ordinance required property developers to create affordable housing for 40% of the
employees generated by new development. Developers could satisfy the requirement
in a variety of ways: by constructing new housing units with fixed rental rates, by
imposing deed restrictions on free market units in order to fix rental rates, by paying
fees in lieu of housing, or by conveying land to the town for affordable housing. Lot
Thirty-Four Venture, L.L.C., a developer, sued the town, claiming that the ordinance
constituted illegal rent control.13 Residential rent control capping allowable rent at
a fixed rate and allowing only limited increases is illegal in Colorado per state
statute.14
11 Gregory Jaynes, Down and Out in Telluride, Time, Sept. 5,1994, at 60.
12
Recognizing that new development generates additional employment needs,
and consistent with the desire to have new development mitigate impacts
attributable to such development, the Town finds it necessary to require new
development to provide affordable housing. Maintaining permanent and
long-term housing in proximity to the source of employment generation
serves to maintain the community, reduce regional traffic congestion, and
minimize impacts on adjacent communities. Housing must be affordable to
the local labor force in order for the local economy to remain stable.
Telluride, 3 P.3d at 45 (Mullarkey, J., dissenting) (citing Telluride Ordinance 1011 §
3-710.A).
13 Town of Telluride v. Lot Thirty-Four Venture, L.L.C., 3 P.3d 30 (Colo. 2000).
14 The imposition of rent control on private residential housing units is a matter of
statewide concern; therefore, no county or municipality may enact any ordinance or
resolution which would control rents on private residential property. CRS § 38-12-
301. This statute does not apply to the rights of any state agency, county, or
3


Town ofTelluride v. Lot Thirty-Four Venture, L.L.C. wound its way up to the
state supreme court, which eventually issued an opinion striking down Tellurides
ordinance.15 Over two strong dissents, a majority of the Colorado Supreme Court
held first that the towns affordable housing mitigation ordinance did indeed fall
within the commonly understood meaning of rent control. Writing for the
majority, Justice Kourlis declared that the state statute prohibiting rent control
addressed a matter of mixed local and statewide concern. Tellurides ordinance
directly conflicted with it; thus, the towns ordinance was invalid. That Telluride was
a home rule municipality didnt matter.
Telluride had argued that the ordinance was an exercise of its police power to
regulate land use. The majority disagreed, reasoning that Tellurides ordinance did
not dictate permissible uses of real property, but instead dictated the rate at which
the property could be used for a permissible purpose. Thus, Justice Kourlis declared,
the ordinance was properly characterized as economic legislation.16
This did not sit well with Chief Justice Mullarkey, writing a dissent joined by
Justice Hobbs. The chief justice questioned whether the anti-rent control statute was
applicable to Tellurides affordable housing mitigation ordinance at all.17 She
contended that Tellurides ordinance was fundamentally a land use regulation, an
area that the General Assembly and this court have consistently recognized to be a
matter of local concern. Mullarkey felt that the majority rested its characterization
municipality to manage and control any property in which it has an interest through
a housing authority or similar agency. Id.
15 Although on the books since 1981, Telluride is the only time Colorado courts have
interpreted the scope of the anti-rent control statute. Telluride, 3 P.3d at 35.
16 Telluride, 3 P.3d at 39 n.9.
17 [N]ot one single housing unit that is subject to Ordinance 1011 would fall within
any of the rent control laws considered by the legislature, and conversely, not one
single housing unit subject to rent control legislation would have fallen within
Ordinance 1011. Telluride, 3 P.3d at 42 (Mullarkey, J., dissenting). This difference
does not reflect a mere implementation choice but represents a fundamental
distinction between the rent control model and the mitigation measures of today.
Id. The legislative history very clearly shows that the statute was intended to
prevent the enactment of a proposed citizen initiative in the city of Boulder and any
other similar rent control ordinances. Id. at 40 (Mullarkey, J., dissenting).
4


of the ordinance on an overly restrictive concept of the definitional scope ofland
use policy.18
Nationwide, courts are split, although there seems to be a trend towards
regarding inclusionary zoning as regulation of land use, not rent.19
In any case, the Telluride decision was a setback for Colorado localities
attempting to use their authority to regulate land use to further affordable housing.20
18 Land use policy ... is not limited to the mere definition of permissible uses; rather,
land use policy encompasses conditions implemented within the rubric of zoning and
planning decisions. Dedications, for example, have been classified as a land use
policy despite the fact that dedications do not dictate permissible uses of real
property. Telluride, 3 P.3d at 42 (Mullarkey, J., dissenting). Chief Justice
Mullarkey reasoned that (1) the ordinance amended Tellurides Land Use Code, an
indication of the intended functioning of the ordinance as a component of the citys
overall land use policy, (2) the statement of purpose of the ordinance laid out the
mitigative purposes of the legislation, which was consistent with powers granted to
local governments by the Local Land Use Control Enabling Act. Telluride, 3 P.3d at
45-46 (Mullarkey, J., dissenting) (citing CRS § 29-20-104(1) as authority for
Tellurides ordinance).
19 See Jay M. Zitter, Annotation, Validity, Construction, and Application of
Inclusionary Zoning Ordinances and Programs, 22 A.L.R. 6th 295 (§§ 4-5)
(comparing Southern Burlington County NAA.C.P. v. Mount Laurel Tp., 456 A.2d
390 (N.J. 1983) and Matter of Egg Harbor Associates, 449 A.2d 1324 (N.J. App. Div.
1982) with Bd. of Supervisors of Fairfax County v. Lukinson, 198 S.E.2d 603 (Va.
1973) and Bd. of Supevisors of Fairfax County v. DeGr off Enterprises, Inc., 198
S.E.2d 600 (Va. 1973)); Barbara E. Kautz, Comment, In Defense of Inclusionary
Zoning: Successfully Creating Affordable Housing, 36 U.S.F. L. Rev. 971 (2002);
and Home Builders Assn of Northern California v. City of Napa, 108 Cal.Rptr.2d 60
(Cal. Ct. App. 1 Dist. 2001) (upholding inclusionary zoning against takings and due
process challenges).
20 In describing the result in Telluride as the Colorado Supreme Court displaying]
hostility toward affordable housing in failing to support the modest efforts of those
rare communities concerned with the lack of affordable housing, one commentator
asserts that, after Telluride, Any effort to generate affordable housing in Colorado
absent nearly nonexistent government subsidy and administration, or a straight
linkage scheme, would appear doomed absent more progressive enabling
legislation. James A. Kushner, ExactionsAffordable housingInclusionary
zoning, 1 Subdivision Law and Growth Mgmt. § 6:27 (noting that the Telluride
ordinance did not apply to general rents in the community).
5


Although technically correct even a home rule locality is preempted from enforcing
a local law that directly conflicts with a state statute on the same subject matter the
disagreements between the majority and the dissent highlight significant confusion
about the way land use planning and control should interact with affordable housing
provision in Colorado.
This is significant because the corners of this spectacularly beautiful state
most famous for progressive land use planning are now some of the least affordable
from a housing perspective. Reasons for the housing affordability crisis in parts of
Colorado are many: lack of sufficient political will, federal funding, or institutional
capacity; short-sighted, parochial land use regulations with de facto exclusionary
effects; and now, after Telluride, far-sighted regulations struck down as contrary to
free-market principles codified in state law.
Telluride was decided in 2000, a time of enormous growth in Colorado. As
the majority remarked, Managing population and development growth is among the
most pressing problems currently facing communities throughout the state.21
Today, the affordability and foreclosure crises are the challenges in the forefront of
most local government officials minds, not growth management and land use
planning. Still, Telluride sets up the two key questions addressed in this thesis.
The thesis
First, is the planning and management of land use and affordable housing a
local, regional, or state responsibility? While all three levels of government are
keenly interested in both land use and housing, both are fundamentally regional
issues that should be dealt with on a regional basis. This fact has long been
recognized with respect to land use, but not with respect to housing. Counties seem
to be the best surrogates for regions in Colorado, geographically, demographically,
politically, and institutionally. For decades now, state law has granted counties
broad authority to regulate land use, authority counties now employ as a matter of
course. Amending state law to also allocate primary responsibility for managing
housing issues to counties qua regions would ensure uniform statewide
implementation of statewide interests in housing, while preserving local decision-
21 Telluride, 3 P.3d at 39.
6


making tailored to unique local circumstances. It would also clear up many of the
confounding preemption issues seen in Telluride.
The second point of confusion highlighted in Telluride: How should land use
planning and affordable housing provision interact in Colorado? The issue is not
whether the two endeavors will affect each other they will. Aggressive land use
control efforts can drive up the price of housing. And the location and extent of
affordable housing can either help or hinder land use planning goals. Rather, the
real issue is whether these two worthy efforts should continue to be viewed and
pursued independently. They should not. Partnering with local municipalities,
Colorado localities should be required by state law to synchronize regional planning
and management of land use and affordable housing. This could occur by the
reallocation of authority on housing matters to counties suggested in the preceding
paragraph. Failing that, where cities and towns retain significant authority over
housing, land use and housing could be better planned for and managed jointly
through increased use of existing tools like multi-jurisdictional housing authorities,
intergovernmental agreements, and the traditional authority to regulate land use.
Methodology
In preparing this thesis, I reviewed the following documents, as cited
throughout: federal, state, and local reports on the status of affordable housing; every
Colorado statute and court decision directly related to housing; every Colorado
statute and court decision directly related to land use planning and control; recent
ballot proposals on growth management that contained exceptions for affordable
housing; nationwide studies and comments addressing whether land use regulations
pose a threat to affordable housing; and primary and secondary documents
describing steps taken by Western counties over the past few decades related to both
land use and affordable housing.
My conclusions were also informed by interviews with planning and housing
staff in Boulder, Douglas, Eagle, Pitkin, and Summit Counties in Colorado, as well as
the City of Las Vegas, Nevadas housing authority. I also talked with Eric Bergman,
the director of Colorados Office of Smart Growth, and Tom Ragonetti, a private
attorney in Denver who represented opponents to the aforementioned growth
management ballot initiatives in 2000-2001.
7


Scope
This thesis is primarily focused on workforce housing, which is targeted for
those earning between 50-80% of the area median income (AMI) often
policemen, nurses, teachers, and the like. The nuances associated with assisting each
step across the housing bridge from homelessness to home ownership for
example, the unique requirements of housing special needs populations that raise
correspondingly unique policy challenges are beyond its scope.
8


CHAPTER 2. BACKGROUND
What is the nature of Colorados affordable housing crisis?
Although it is one of our most fundamental needs as individuals and as
community members, there is no fundamental right to housing in the U.S. safe,
decent, affordable, or otherwise.22 For the most part, the free market dictates the
volume and health of our housing stock. Federal, state, and local governments
regulate aspects of housing and also provide limited funding.
The federal government has long been involved in affordable housing
provision through urban renewal, public housing, and numerous other subsidy
programs usually administered by the Department of Housing & Urban Development
(HUD). Far more federal assistance goes towards supporting home ownership
than other forms of housing assistance.23
When available, housing subsidies generally reduce housing costs to 30% of
income.24 The imperfect but official definition of affordable is housing that costs
its occupants no more than 30% of their monthly income. The Department of
Housing & Urban Development (HUD) refers to households that spend more than
30% as cost-burdened. As of 2001, a quarter of all American households were cost-
22 [E]ven interests of such importance in our society as public education and
housing do not qualify as fundamental rights for equal protection purposes because
they have no textually independent constitutional status. Craig v. Boren, 429 U.S.
190 (1976) (Burger, J., dissenting) (citing Lindsey v. Normet, 405 U.S. 56 (1972)).
23 See, e.g., Cushing Dolbeare & Sheila Crowley, NLIHC, Changing Priorities: The
Federal Budget and Housing Assistance, 1976-2007 (2002). As of 2007, 68% of
Americans owned their home. Harvards Joint Center for Housing Studies, The State
of the Nations Housing: Fact Sheet (2008). At least prior to the current housing
crisis, home ownership was a very successful wealth-building strategy. Among
homeowners that bought units between 1999 and 2005, fully 85 percent saw an
increase in wealth, with their median net wealth rising from $11,100 to $88,000 in
real terms. Among households that already owned homes, 75 percent also saw an
increase in their wealth, with their median net wealth nearly doubling from $152,400
to $289,000. Id.
24 Self-Sufficiency Standard for Colorado 2008, at 14, infra note 38.
9


burdened,2s and 85% of poor households.23 * 26 In 2006,17.7 million American
households were severely cost-burdened, meaning they paid more than 50% of
their income for housing.27 One in six American children lived in these severely
burdened households.28
Federal assistance alone is unable to close the affordability gap.29 For
example, in 2005 in Colorado, around 55,309 households received federally assisted
housing.30 However, during the same year there were 249,700 low-income
families ... with unaffordable housing-cost burdens, in which case approximately
one-quarter of eligible households received assistance.31
This affordable housing shortage is unacceptable for many reasons. For
starters, the more these households pay for housing, the less they spend on food,
clothing, and health care.32 Many of these cost-burdened households include
23 DOWNS, supra note 1, at 2 (citing 2001 American Housing Survey). Another
estimate asserts that 15 million low-income families have unaffordable housing costs.
Self-Sufficiency Standard for Colorado 2008, at 29, infra note 38 (citing analysis of
data from the 2000 and 2005 American Community Surveys, D. Rice & B. Sard,
Center on Budget and Policy Priorities, Congress Should Increase HUDs Budget to
Prevent Families from Losing Assistance and Address Growing Need, June 1, 2007,
available at http://www.cbpp.org/5-29-07hous.htm).
26 DOWNS, supra note 1, at 2 (citing 2001 American Housing Survey).
27 Joint Center for Housing Studies, supra note 23. Another estimate asserts that
nearly nine million households have severe housing cost burdens (exceeding 50%
of their income). Self-Sufficiency Standard for Colorado 2008, at 29, infra note 38.
28 id.
29 Nationally, nearly two million households received federal housing vouchers in
2007. Self-Sufficiency Standard for Colorado 2008, at 29, infra note 38 (citing
Center on Budget and Policy Priorities, Introduction to the Housing Voucher
Program, Jul. 6, 2007, available at http://www.centeronbudget.org/5-15-
03hous.pdf). Of these households, 59% are households with children. Id.
30 Self-Sufficiency Standard for Colorado 2008, supra note 38, at 29 (citing D. Rice
& B. Sard, Center on Budget and Policy Priorities, The Effects of the Federal Budget
Squeeze on Low-Income Housing Assistance (2007), available at
http://www.centeronbudget.org/2-1-07hous.pdf).
31 Id.
32 In 2006, severely-burdened households with children in the bottom-expenditure
quartile had only $548 per month on average for all other needs. As a result, these
10


employees working one or more jobs; the workforce is stressed. As the 2002
Millenial Housing Commission explained, Decent, affordable and accessible housing
fosters self sufficiency, brings stability to families and new vitality to distressed
communities, and supports overall economic growth.33 Such housing improves life
outcomes for children and in the process reduces a host of costly social and
economic problems that place enormous strain on the nations education, health,
social service, law enforcement, criminal justice, and welfare systems.33 34 35
Colorado is not immune from the national affordability crisis, especially in
the states most prized regions, despite extensive state law and policy promoting the
provision of decent, safe, and affordable housing. Although most of Colorados
housing is sanitary and safe, due to widespread enforcement of standard building
codes, many families and individuals are cost-burdened. Mirroring the national
picture, the problem is most acute for the lowest end of the income scale. Along with
child care, housing costs continue to be the highest costs for Colorado families.35
The Colorado Self-Sufficiency Standard measures how much income a family
needs to adequately meet their basic needs without public or private assistance.36 37
The Standard measures this for 70 different family types in each of Colorados 64
counties. 37 The Self-Sufficiency Standard shows that, for most parents, earnings
families spent 32 percent less on food, 56 percent less on clothes, and 79 percent less
on healthcare than families with low housing outlays. Joint Center for Housing
Studies, supra note 23.
33 Millennial Housing Commission Report, June 2002, available at
http://govinfo.library.unt.edu/mhc/MHCReport.pdf.
34 Id.
35 Colorado Center on Law & Policy, supra note 8.
36 The Colorado Self Sufficiency Standard is the level of income needed to pay for the
basics like housing, food, child care, health care, transportation, miscellaneous costs,
and taxes. Id. The county-by-county demographic breakdowns in the report utilize
this standard, which is based on a bare-bones budget that excludes any restaurant
or take-out food costs, credit card or loan payments, or emergency funds. Id.
37 The Self-Sufficiency Standard varies by both family type and by geographic
location because the amount of money a family needs to be economically self-
sufficient depends on family size, composition, and childrens ages, and on the state
and county of residence. Self-Sufficiency Standard for Colorado 2008, at 14, infra
note 38.
11


that are well above the official Federal Poverty Level are nevertheless far below what
is needed to meet their families basic needs.38 39 These families fall into the so-called
policy gap: they earn too much to qualify for governmental work support programs
but too little to support their families.89 Statewide, for every family which falls under
the official federal poverty line, there are two families who are above it but still
cannot pay for their most basic needs.40
Statewide, the hourly wage necessary to afford fair market rent for a two-
bedroom unit in 2008 is $16.09.41 This housing wage calculated by the National
Low Income Housing Coalitions (NLIHC) is up 13% in Colorado since 2000. This
is a little problematic for the average renter, who only earns $14.36 an hour.42 If this
average renter wage earner only works one job, she can afford to pay only $747 a
month for housing without being cost-burdened 2008 fair market rent for a two-
bedroom unit in Colorado is $836.43
But a Colorado housing wage of $16.09 an hour is very problematic for those
renters only earning minimum wage $7.02 an hour. Such a household must work
2.3 full-time jobs to afford fair market rent for a two-bedroom unit.44 If they only
38 Diana Pearce, Colorado Fiscal Policy Institute, The Self-Sufficiency Standard for
Colorado 2008: A Family Needs Budget, at 41, available at
http://www.cclponline.org/pubfiles/SelfSufficiencyo8_FinalProof.pdf. In addition
to Colorado, the Standard has been calculated for about 35 other states.
39 Colorado Fiscal Policy Institute, Overlooked and Undercounted: Struggling to
Make Ends Meet in Colorado, available at
http://www.cclponline.org/ccs/reports.php (internal quotes omitted) (see page after
title page).
40 Id. (see page before internal page 1).
41 In order to afford this level of rent and utilities, without paying more than 30% of
income on housing, a household must earn $2,788 monthly or $33,459 annually.
Assuming a 40-hour work week, 52 weeks per year, this level of income translates
into a Housing Wage of $16.09. NLIHC, Out of Reach 2007-08, available at
http://www.nlihc.org/oor/oor20o8/data.cfm?getstate=on&state=CO.
42 Id.
43 Id.
44 Id.
12


work one full-time job, these minimum wage workers can afford to pay only $365 a
month for housing without being cost-burdened.
Of course, residents on a fixed income may have an even tougher time
avoiding becoming cost-burdened. Monthly Supplemental Security Income (SSI)
payments for an individual are $637 in Colorado. If SSI represents an individuals
sole source of income, $191 in monthly rent is affordable, while the fair market rent
for a one-bedroom is $667.* 46
Lastly, the gap between rich and poor in Colorado is only widening. In terms
of dollar amounts, the richest fifth of families in Colorado saw their average income
grow nearly ten times the amount of those in the poorest fifth, and nearly four times
the amount of the middle fifth of families, since the late-i98os.47
4s Id.
46 NLIHC, Out of Reach 2007-08.
47 Colorado Fiscal Policy Institute, New Study: Income Gap Growing in Colorado:
Incomes of Rich Are Rising Faster Than Low- And Middle-Income Families, Apr. 9,
2008, available at
http://www.cclponline.org/pubfiles/PullingApart_PressReleaseFINAL.pdf (citing
Jared Bernstein et al., Center on Budget and Policy Priorities, Pulling Apart: A State-
By-State Analysis of Income Trends, April 2008, available at
http://www.cbpp.org/4-9-08sfp.pdf).
For a fact sheet specific to the widening income gap in Colorado, see
http://www.cbpp.org/states/4-9-08sfp-fact-co.pdf. Between the late 1980s and the
mid-2000s, the average income of the poorest fifth of families increased by $4,532,
from $15,809 to $20,341 an increase of $267 per year. During this same period,
the average income of the richest fifth of families increased by $49,227, from
$92,954 to $142,181 an increase of $2,896 per year. Fact sheet on income
inequality in Colorado based on Bernstein et al., supra note 47, available at
http://www.cbpp.org/states/4-9-08sfp-fact-co.pdf.
13


Land use regulation can affect housing affordability, but if designed
with affordable housing goals in mind it doesnt have to cause a
community to become de facto exclusionary.
For some observers, the cause of the housing crisis in Colorados wealthiest
regions seems obvious. If one is drawn to the grandeur of the Rocky Mountain
peaks, the quality of life in regions like Boulder and Pitkin County (whose programs
and policies are discussed as examples in further depth below) is unsurpassed. As a
result, these areas attract a steady influx of wealthy migrants and visitors, which does
wonders for local property values, driving them up beyond the wildest dreams of real
estate agents and property tax assessors alike.48 As development pressures mount in
mountain valleys and foothills, old voters and new band together to preserve the
communitys quality of life through various land use planning techniques: urban
growth boundaries, open space acquisition, and annual caps on building permits, to
name but a few.
While often successful in achieving their intended results of slowing and
shaping development, these land use planning efforts also typically result in the
presumably unintended exclusion of present and future low-income residents.
Skyrocketing housing prices for both rental units and those for sale often make it
impossible for lower-income workers to live close to their jobs. Drawn to these areas
for the same reasons as the wealthy the abundance of natural, economic, and
sometimes even social capital the workforce often commutes great distances from
home to work, increasing regional pollution and congestion.
In sum, a kind of planning paradox exists: the more effort a locality puts into
managing development pressures for conservation of its environment and quality of
life, the less affordable that locality becomes for present and future residents with the
fewest resources, despite the crucial roles these people play in the community.
The best solution to this paradox is far less clear than its cause. Nationwide,
observers disagree on the extent to which land use planning efforts pose a threat to
affordable housing. Some see a straightforward cause and effect.49 For example,
48 See William R. Travis, New Geographies of the American West: Land Use and
Changing Patterns of Place (Island Press 2007).
49 See, e.g., Joint Center for Housing Studies, supra note 23 (restrictive
development regulations contribute to higher home prices) (House price
14


Over the years, HUD has found that regulations such as out-of-date building codes,
duplicative or time-consuming design review or approval processes, burdensome
rehabilitation codes, restrictive or exclusionary zoning ordinances, unnecessary or
excessive fees or taxes, extreme environmental restrictions, and excessive or gold-
plated land development standards, all contribute to higher housing costs and
production delays.50 As a result, HUD maintains a centralized database of solutions
to state and local regulatory barriers to affordable housing.51 Other observers note
that sprawl often increases the supply of affordable units, even if those units are far
from opportunities for work, education, and recreation.52 * These commentators tend
to believe that affordable housing is best encouraged by reducing existing land use
regulations that block it, not by creating more regulations.55
appreciation in 2002-2005 averaged 45 percent in the most restrictive areas,
compared with 24 percent in the least restrictive.); Jerry Anthony, The Effects of
Floridas Growth Management Act on Housing Affordability, 69 J. AM. Plan. ASSn
282 (2003) (using two indices of housing affordability to study the effects of Floridas
growth management act on housing affordability in all 67 counties, Anthony
concluded that the Act had a statistically significant effect in decreasing the
affordability of single-family homes); A. Dan Tarlock & Sarah B. Van de Wetering,
Western Growth and Sustainable Water Use: If There Are No Natural Limits,
Should We Worry About Water Supplies?, 27 Pub. Land & Resources L. Rev. 33, 55
(2006) (Many versions ofsmart growth and other versions ofgrowth
management are intentionally or unintentionally hostile to affordable housing.).
50 HUD, Affordable Communities Initiative: Bringing Homes Within Reach
Through Regulatory Reform, http://www.hud.gov/initiatives/affordablecom.cfm
(estimating that the removal of affordable housing barriers could reduce
development costs by as much as 35%).
51 HUD, Regulatory Barriers Clearinghouse, http://www.huduser.org/rbc/.
52 See, e.g., Tarlock & Van de Wetering, supra note 49. The economic case for
sprawl or, more neutrally, the continuation of the current outward expansion of
cities is that efficiency must always be balanced against equity, and equity concerns
often cut in favor of sprawl. Id. Low and moderate income families often, on
balance, benefit from sprawl, especially as changing social mores and anti-
discrimination laws open more suburban areas to minorities. Low-density
development exerts a downward pressure on housing prices. Id. For other
perspectives on the exclusionary effects and motives of growth controls, see
generally DOWNS, supra note 1, and Robert C. Ellickson, Suburban Growth
Controls: An Economic and Legal Analysis, 86 Yale L.J. 385 (1977).
55 DOWNS, supra note 1, at 7 (referring to Michael Schill).
15


Others disagree, finding either no correlation between housing affordability
and land use regulations or a lack of definite causation between a given regulation
and a trend towards unaffordability. 54 These commentators assert that the
restriction of land available for housing called for by smart growth ... need not always
generate higher housing prices for the poor.54 55 Rather, they argue, smart growth
and sustainable development are, in principle, compatible with, and even supportive
of, affordable housing.56 Such observers often emphasize that the devil is in the
details: Governments pursuing smart growth must simultaneously encourage the
development of affordable housing, because many smart growth measures limit the
availability of land for it. The two key factors in providing affordable housing under a
growth management program are employing a full panoply of instruments to
encourage affordable housing and exhibiting a strong political desire to do so.57
A recent Brookings Institution study seems to sum it up best: (1) market
demand, not land constraints, is the primary determinant of housing prices, (2) both
traditional land use regulations and growth management policies can raise the price
of housing, and (3) if housing prices may increase in any land use environment, then
the decision is between good and bad regulation to improve housing choice.58 In
54 See Nicole Stelle Garnett, Save the Cities, Stop the Suburbs?, 116 Yale L.J. 598,
n.35 (2006) (reviewing conflicting evidence on whether Portlands longstanding
regional growth management program has directly increased housing prices);
Danielle Arigoni et al., Affordable Housing and Smart Growth: Making the
Connection 8 (2001) (sponsored by the EPA and the National Neighborhood
Coalition) (arguing that smart growth, through its regional approach to
development and its goal of increasing choices in housing and transportation, can
improve the quality, distribution, and supply of affordable housing).
55 DOWNS, supra note 1, at 5.
56 Tim Iglesias, Managing Local Opposition to Affordable Housing: A New
Approach to NIMBY, 12 J. Affordable Hous. & Cmty. Dev. L. 78, n.13 (2002)
(citing the Social Equity and Community Building section of the American
Planning Associations 2002 Policy Guide on Smart Growth).
57 Downs, supra note 1, at 4.
58 Arthur C. Nelson et al., The Brookings Institution Center on Urban and
Metropolitan Policy, The Link Between Growth Management and Housing
Affordability: The Academic Evidence (2002), available at
http://www.brookings.edu/es/urban/publications/growthmang.pdf. See also
DOWNS, supra note 1.
16


other words, the pursuit of sensible planning and management of land use and
affordable housing are not inherently at odds. We should be capable of harmonizing
them.
Strong state policy advocating affordable housing provision already
exists. The same goes for land use planning and control. But the two are
not simultaneous, linked endeavors under state law.
Under current state law and policy, Colorado counties have several powerful
tools at their disposal to help ensure a sufficient supply of affordable housing in their
regions. Colorado localities currently have broad authority to plan and regulate the
use of local land, directly and indirectly, as well as facilitate the production of
affordable housing units, directly and indirectly. But much of the current state
statutory language is exhortatory, not mandatory.
Strong state policy on affordable housing provision already exists.
Affordable housing has been addressed by the Colorado General Assembly for
well over half a century.59 Today, most of the key state laws concerning housing are
collected in Article 4 of Title 29 the local government title, a reminder that, like
land use planning, housing is mostly managed at the local level, even though its a
matter of statewide importance. When Titles 24 (state government) and 30 (county
government) are added to the mix, its clear that the CRS contain numerous
legislative declarations that affirm affordable housing is an issue of major statewide
importance in Colorado, as summarized in the following three paragraphs.
59 See, e.g., Colo. Legislative Council, Report to the General Assembly: Low and
Moderate Income Housing Needs, Res. Publication No. 193, Dec. 1972, available at
http://law.du.edu/images/uploads/library/CLC/193.pdf; Colorado Legislative
Council, Report to the General Assembly: Simplification of State Government
Administration, Part III, Res. Publication No. 80, Dec. 1963, at 13, available at
http://law.du.edu/images/uploads/library/CLC/80.pdf (recommending the repeal
of the State Building Authority because of its inactive history and because the
purpose for which it was created is no longer necessary in view of the programs of the
federal government).
17


A housing shortage for persons of low- and moderate-income is detrimental
to the public health, safety, and welfare.60 In particular, the inability of such persons
to reside near where they work negatively affects the balance between jobs and
housing in many regions of the state and has serious detrimental transportation and
environmental consequences.61 Unless the supply of housing units is increased, a
large number of Colorado residents will be compelled to live under unsanitary,
overcrowded, and unsafe conditions to the detriment of their health, welfare, and
well-being and to that of the communities of which they are a part.62 64
It is in the public interest to preserve a diversity of housing opportunities for
the states residents and people of low- and moderate-income. 63 To this end,
publicly-assisted rental housing affordable to low- and moderate-income persons
should be preserved.61* And the efforts of private enterprise and governmental
entities in meeting critical housing needs should be leveraged.65
Its state policy to foster the establishment of affordable housing dwelling unit
programs that will satisfy the housing needs of all the residents of a particular
jurisdiction.66 These boards should address the housing needs of low- and
moderate-income persons, promote a full range of housing choices, and develop
effective policies to encourage the construction and continued existence of affordable
housing. Addressing the needs of all persons means it is state policy to assist the
60 CRS § 29-26-101(1)05).
61 Id.
62 Id. § 24-32-702(1).
63 Id. § 29-26-ioi(i)(b).
64 Id. § 24-32-702(4X3). To this end, property owners are encouraged to notify the
Division of Housing when affordable housing units will be lost as contracts to keep
units affordable expire, so that the division can explore options for preserving the
affordable housing resources. Id. at (4)(b). See id. § 24-32-718 (Division of Housing
maintains a database of affordable housing units to be lost).
65 CRS § 29-4-702(1).
66 Id. § 29-26-ioi(i)(c) (emphasis added). See also id. § 24-32-702(2) (state policy to
make housing and home ownership more feasible for all residents of the state).
These affordable housing dwelling unit boards are meant to cooperate with local
housing authorities in the establishment and implementation of policies that shall
further the intent of the statute. Id. § 29-26-104. Its unclear why this statute is
buried in the part of the local government title concerning marketing districts.
18


developmentally disabled, the elderly, and the mentally ill in living in normal
residential surroundings.' Encouraging the construction and continued existence of
affordable housing is advanced by, for example, the provision of additional adequate,
safe, sanitary, and energy-efficient new and rehabilitated dwelling units, as well as a
ban on county regulations affecting development which have the effect of excluding
manufactured homes, assuming such homes meet or exceed standards established by
the county building code.'"
Strong state policy on land use planning already exists, too.
Land use, land use planning, and quality of development are matters in
which the state has responsibility for the health, welfare, and safety of the people of
the state and for the protection of the environment of the state.67 But state policy is
that decision-making authority as to the character and use of land shall be at the
lowest possible level of government.'v Thus, land use planning at the state level is
limited. Generally, state statutes are enabling acts, meaning they grant the authority
to regulate land use to local governments but do not mandate regulation. There is no
statewide land use plan, nor does the statewide land use commission exist anymore.v
From the time the first state land use planning acts were enacted in the early
1970s, they included multiple windows into the legislatures intent. Growth should
be planned and orderly, with development not outpacing the provision of adequate
public facilities.68 Careful and comprehensive surveys and studies of the existing
conditions and probable future growth69 should be used to enable a balancing of
basic human needs of a changing population with legitimate environmental
concerns.70 71 The aim of land use planning is reducing the wastes of physical,
financial, or human resources which result from either excessive congestion or
excessive scattering of population.7' Land use planning should result in efficiency
and economy in the process of development, including such distribution of
population and of the uses of land for urbanization, trade, industry, habitation,
67 CRS § 24-65.i-ioi(i)(c) (Areas and Activities of State Interest).
68 Id. § 31-12-105(6).
69 Id. § 30-28-107.
70 Id. § 29-20-102(1) (Local Government Land Use Control Enabling Act).
71 Id. § 30-28-107 (County Planning Act).
19


recreation, agriculture, forestry, and other purposes as will tend to create conditions
favorable to health, safety, energy conservation, transportation, prosperity, civic
activities, and recreational, educational, and cultural opportunities.?2
State policy is to recognize and reward communities that cooperatively plan
for and manage growth.72 73 In 2000, the legislature created the Office of Smart
Growth in the Local Government division. Its mission is to provide direct technical
and financial assistance to local governments for land use planning, to assist such
governments in anticipating and responsibly addressing the unique public impacts
caused by growth.7** The Office serves as a clearing house of information relating to
the common problems faced by local governments in connection with growth and the
resources available to assist in the resolution of those problems. Upon request, the
Office assists cooperative growth management efforts among local governments,
particularly completion of comprehensive plans and resolution of land use
disputes.75
Title 24 contains several laws on land use planning issues of statewide
interest but administered at the local level, including notification of surface
development for mineral extraction,76 planned unit developments,77 and vested
property rights.78 This state-to-local delegation is capture in the state statute
establishing the Division of Local Government in the state Department of Local
Affairs, wherein the legislature declares that the future welfare of the state depends,
in large measure, on local leadership and the effectiveness of local government.79
The state has primary responsibility for strengthening local government,
encouraging local initiative, and providing coordination of state services and
72 Id.
73 CRS § 24-32-3201.
79 Id.
75 Id. §§ 24-32-3204(i)(d), (e). See also id. § 24-32-3209 (mediation of
intergovernmental planning disputes).
76 Id. §§ 24-65.5-101-105.
77 Id. §§ 24-67-101-108.
78 Id. §§ 24-68-101-106.
79 CRS § 24-32-101(1)0).
20


information to assist local government in effectively meeting the needs of Colorado
citizens.80
Title 24 also contains the statute on areas and activities of state interest (the
State Interest Act).81 Enacted in 1974 along with the Local Government Land Use
Control Enabling Act in Title 29, the State Interest act was one of Colorados first
comprehensive land use laws, a response to the rapid growth and development of
the state and the resulting demands on its land resources.82 Describing its intent in
enacting the State Interest Act, the general assembly declared that The protection of
the utility, value, and future of all lands within the state, including the public domain
as well as privately owned land, is a matter of public interest.85 Adequate
information on land use and systematic methods of definition, classification, and
utilization thereof are either lacking or not readily available to land use decision
makers.84
The way the State Interest Act works is this. The general assembly describes
areas and activities which may be of state interest and establishes criteria for their
administration. Then local governments are encouraged to designate areas and
activities of state interest. If and when they do, they must identify, designate, and
adopt local guidelines for the administration of such areas and activities, assisted by
appropriate state agencies. Once such local government regulations have been
adopted, any person desiring to conduct an activity of state interest must file an
application for a permit with the local government where such activity is to take
place. Once such an application is submitted, the local government may approve it,
deny it, or seek an injunction against any person desiring to conduct a designated
activity of state interest who does not obtain a permit.85
Among the activities of state interest a local government may designate are
site selection and development of new communities, where new communities is
80 Id. § 24-32-ioi(i)(d).
81 Id. §§ 24-65.1-101-502.
82 Douglas County Bd. of Commrs v. Gartrell Inv. Co., LLC, 33 P.3d 1244,1247
(Colo. Ct. App. 2001).
85 CRS §§ 24-65.i-ioi(i)(a) and (b).
84 Id. §§ 24-65.i-ioi(i)(a) and (b).
85 Gartrell, 33 P.3d 1244 (internal citations omitted).
21


defined as the major revitalization of existing municipalities or the establishment of
urbanized growth centers in unincorporated areas.86 This seems to be the closest
that the State Interest act comes to designating affordable housing or growth
management as an area or activity of statewide interest.8?
Aside from Title 24, the three most important state titles on local authority to
control land use are Title 29, concerning local governments generally; Title 30,
concerning counties specifically; and Title 31, on cities and towns. The key
provisions in each for purposes of this thesis are as follows.
Title 29 grants local governments broad authority to regulate land use,88
authority long recognized and upheld by Colorado courts.89 This includes uniform
authority to impose impact fees as a condition of approval of development permits to
encourage proper growth management.90 Nothing in the Local Land Use Act
86 CRS § 24-65.1-103(13).
87 The Colorado Court of Appeals recently interpreted this new communities
provision in Gartrell, 33 P.3d 1244. There, Gartrell the developer wished to build
1,500 houses on 1,000 acres of land designated non-urban in the Douglas County
Master Plan. Pursuant to its land use regulations promulgated under the State
Interest act, Douglas County tried to require Gartrell to obtain a new communities
permit from the county before proceeding to annex its property to Aurora. The
appeals court held that the county lacked the authority to do so because its
regulations concerning annexation exceeded the scope of the State Interest act. Id.
88 See CRS §§ 29-20-101-108.
Each local government within its respective jurisdiction has the authority to
plan for and regulate the use of land by ... regulating the location of activities
and developments which may result in significant changes in population
density; providing for phased development of services and facilities;
regulating the use of land on the basis of the impact thereof on the community
or surrounding areas; and 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.
Id. § 29-20-i04(i)(e)-(h).
89 See, e.g., Droste v. Pitkin County Bd. of Commrs, 141 P.3d 852, 854-855 (Colo. Ct.
App. 2005).
90 CRS § 29-20-104.5.
22


diminishes the planning functions of the stated1 The Local Land Use Act and the
County Planning Act have different, though complementary, purposes.91 92
Title 30 contains the County Planning Act, a statute that dates from the
1930s.93 Most counties must adopt a comprehensive (aka master) plan to guide the
physical development of the unincorporated territory of the county.94 Importantly
for purposes of this analysis, counties are authorized to enter into regional planning
efforts with other governmental units in a common geographic area.95
Implementation of comprehensive plans occurs through zoning codes, subdivision
regulations, housing provision, and so on.96
Counties can choose to adopt some types of land use regulations and must
adopt others.97 The standard for determining the constitutional validity of a
91 Id. § 29-20-102(1). See Colo. State Bd. of Land Commrs u. Colo. Mined Land
Reclamation Bd., 809 P.2d 974 (Colo. 1991) (finding that a local governments
authority to regulate land use and development should, to the extent practicable, be
exercised in harmony with any total land use planning for the state the grant of
authority to local governmental units is not a replacement for statewide land use
planning functions reposed in other state bodies).
92 Droste v. Pitkin County Bd. of Commrs, 141 P.3d 852, 855-856 (Colo. Ct. App.
2005) (finding that the Local Land Use Act grants additional powers to counties
beyond those granted in the County Planning Act; thus, the limitation on temporary
zoning in the County Planning Act does not prohibit or limit a moratorium on
development for the purpose of studies under the Local Government Land Use
Control Enabling Act).
95 Id. at 855.
94 CRS § 30-28-106. While both the planning and zoning powers of local
governments are related to rational development and regulation of land uses, the
Colorado statutory scheme clearly distinguishes between the two functions. The duty
of creating and adopting the master plan is assigned to the regional or county
planning commissions. Theobald v. Summit County Bd. of Commrs, 644 P.2d 942,
948 (Colo. 1982) (interpreting CRS § 30-28-111 and 106) (internal citations omitted).
95 See references to regional planning commissions in CRS §§ 30-28-101-139.
96 Id. § 30-28-131.
97 For example, counties can regulate land use by zoning, CRS § 30-28-111, but they
must adopt subdivision regulations, CRS § 30-28-133. Conditions placed on
subdivision approval are closely scrutinized by Colorado courts. See, e.g.,
23


governments exercise of its inherent police power authority to enact laws, whether
exercised in the enactment of land use controls or in decisions enforcing those
regulations, is that land use regulation or enforcement must bear a rational
relationship to the health, safety, and welfare of the community.98 A local
government can address matters not specifically mentioned in the planning, zoning,
and development statutes, so long as the adopted local regulations address
development impacts in a reasoned manner, accompanied by adequate procedural
safeguards and sufficient regulatory detail.99
In describing the elements of the comprehensive plan, the County Planning
Act speaks to housing directly in several places. Comprehensive plans may include
the general character, location, and extent of... housing developments, whether
public or private, the existing, proposed, or projected location of residential
neighborhoods and sufficient land for future housing development for the existing
and projected economic and other needs of all current and anticipated residents of
the county or region, and urban conservation or redevelopment areas.100
Comprehensive plans may also include projections of population growth and
housing needs to accommodate the projected population for specified increments of
time.101 The county or region may base these projections upon data from the
department of local affairs and upon the countys or regions local objectives.102 *
Lastly, in creating the master plan of a county or region, the county or regional
planning commission may take into consideration the availability of affordable
housing within the county or region. Counties are encouraged to examine any
regulatory impediments to the development of affordable housing.108
Bainbridge, 929 P.2d at 699 (citing Pennobscot, Inc. v. Pitkin County Bd. of
Commrs, 642 P.2d 915, 919 (Colo. 1982)).
98 See, e.g., Tri-State Generation & Transmission Assn v. Lincoln County Bd. of
Commrs, 600 P.2d 103 (Colo. Ct. App. 1979).
99 Telluride, 3 P.3d at 43 (internal citation omitted) (Mullarkey, J., dissenting) (citing
Beaver Meadows v. Bd. of County Commrs, 709 P.2d 928, 936-38 (Colo. 1985)).
100 CRS § 30-28-io6(3)(a)(VII) (emphasis added).
101 Id. § 30-28-io6(3)(a)(X).
102 Id.
108 Id. § 30-28-io6(3)(e) (emphasis added).
24


Comprehensive plans are purely advisory documents in Colorado, absent
either formal inclusion of sufficiently specific master plan provisions in a duly
adopted land use regulation or a statutory directive from the general assembly that
landowners must comply with master plan provisions in pursuing land use
development proposals.10"*
Turning to the third significant state title on local governance issues, Title 31
contains municipal law on urban renewal* 105; extraterritorial authority over major
street plans,106 nuisances,10? waterworks,108 parklands, recreation facilities, and
conservation areas 109; and notification requirements to counties and others of
proposed major activities covering five acres of land or more.110 All of these laws are
employed to help manage growth and land use by affecting when, where, and how
development takes place. Most of the disputes that end up in appellate court concern
annexation," water resources,"1 or the provision of adequate infrastructure."11
As final note on state law and policy affecting land use, localities also
sometimes rely on statutes outside Titles 24, 29, 30, and 31 to manage land use and
growth, such as those in Title 22 concerning local decisions on school districts.111
104Bd. of Larimer County Commrs v. Conder, 927 P.2d 1339 (Colo. 1996). See also
CRS § 29-20-203(2) (citing Theobald, 644 P.2d 942).
105 CRS §§ 31-25-101-115.
106 Id. § 31-23-212-213.
10? Id. § 31-15-401-601. See also id. § 25-7-138(4), concerning municipal consent to
the location of new landfills within one mile of the municipal boundary.
108 Id. § 31-15-707(1)01).
109 Id. §§ 31-25-216, 217, 301, and 302.
110 Id. § 31-23-225.
111 See generally CRS, Title 22, Art. 30 (School District Organization Act).
Significant growth over a relatively short period of time places pressure on schools
to meet the demands of a growing student population. William P. Ankele, Jr.,
Funding Schools through Public-Private Partnerships, 30 Colo. Law. 75 (2001)
(citing the Brighton School District as an example of the degree to which strong
growth over a relatively brief period of time can drastically impact a school districts
ability to provide adequate space for students).
25


After this summers decision in Town ofTelluride v. San Miguel Valley Corp.,
condemnation may also be used as a land use control method more often, too.112
112 Town ofTelluride v. San Miguel Valley Corp., 185 P.3d 161 (Colo. 2008) (holding
that, as a matter of first impression, extraterritorial condemnation by a town of
property for parks and open space constituted a lawful, public, local and municipal
purpose, and thus fell within the scope of the home rule article of the Colorado
Constitution).
26


CHAPTER 3. ARGUMENT
Telluride highlights confusion on whether affordable housing and land
use are matters of mixed state and local concern in Colorado. Both are.
Both should be.
To date, the logic in Telluride has been examined in only two subsequent
Colorado appellate decisions, neither of which is particularly relevant to this
discussion.113 Nationwide, multiple commentators cite or discuss the decision,
typically noting the strong dissent.11"*
The first Telluride holding, that the ordinance violated the rent control
statute, seems plausible under the plain language of the state law. Which means that
inclusionary zoning ordinances that restrict rent on private residences are likely to be
illegal in Colorado for the foreseeable future, unless the Supreme Court reverses this
recent holding or the General Assembly repeals this nearly 30-year old statute.
But the import of the second Telluride holding is worth exploring further. If
the Telluride ordinance did amount to rent control, and rent control is indeed a
matter of mixed state and local concern, then the second holding that the local
ordinance was preempted by the state statute, regardless of Tellurides home rule
status makes sense under the operational conflict prong of the standard
preemption doctrine in Colorado. But what if this had been characterized as a home
rule locality trying to exercise its authority to provide affordable housing or manage
113 See Boulder County Apartment Assn v. City of Boulder, 97 P.3d 332 (Colo. Ct.
App. 2004) (holding that home rule citys zoning ordinance concerning over-
occupancy limits was not preempted by state law on landlord-tenant relations) and
City of Northglenn v. Ibarra, 62 P.3d 151 (Colo. 2003) (holding a home rule citys
zoning ordinance prohibiting unrelated or unmarried registered sex offenders from
living together in a single-family residence was preempted as applied to adjudicated
delinquent children in foster care homes, given the statewide concern).
u"t See, e.g., James A. Kushner, Enabling legislation and home rule power, 1
Subdivision Law and Growth Mgmt. § 1:18 n.4 and Ngai Pindell, Fear and Loathing:
Combating Speculation in Local Communities, 39 U. Mich. J.L. Reform 543 (2006)
(discussing Telluride extensively, noting that the courts characterization subverts
attempts by local governments to be involved in affordable housing efforts).
27


growth? Is the Telluride decision an exemplar of the best way to harmonize the
competing state, local, and shared interests? The forceful and compelling dissents
indicate otherwise.
Even for Justice Hobbs, author of most of the Colorado high courts most
compelling decisions on land use planning, confusion seems to exist on whether the
subject is a matter of state, local, or mixed concern. In the dissent he joined in
Telluride, Chief Justice Mullarkey forcefully asserted that Tellurides ordinance was
fundamentally a land use regulation, an area that the General Assembly and this
court have consistently recognized to be a matter of local concern. In 1999, in his
dissent in Save Park County, Hobbs seemed to regard land use planning as a matter
of mixed state and local concern: Local land use regulation taking into account
statewide interests is the mechanism our legislature has chosen as the primary
vehicle for ensuring the safekeeping and nurturing of Colorado as it grows.115 But a
year later, writing for the majority in Proposed City of Centennial, Hobbs declared
that the 1999 amendment to the Colorado annexation statute was reasonably related
to a legitimate governmental purpose: uniform statewide management of urban
growth and municipal boundaries.116 Surely management of urban growth and
municipal boundaries are fundamental land use planning issues.
Hobbs statement in Proposed City of Centennial accords with the assertion
by the author of a standard treatise on local government law that, nationwide,
housing and zoning are generally matters of statewide concern.117 But in a state as
large as Colorado, and as varied in population density, geography, and political
persuasion, its hard to argue that housing and land use are so clearly a matter of
statewide concern that the state should control every aspect of both. Conversely, its
equally hard to argue that control over housing and land use should be left entirely in
the hands of municipalities. Indisputably, decisions made in one city or town can
have stark effects on neighboring areas. The profusion of bedroom communities east
of Boulder and downvalley from Aspen are prime examples.118
115 Save Park County at 43 (Hobbs, J., dissenting) (citing CRS § 29-20-102).
116 Proposed City of Centennial, 3 P-3d 427 (emphasis added).
117 Osborne M. Reynolds, Jr., Handbook of Local Government Law § 139 (2001
2d. edition).
118 See, e.g., Herrick K. Lidstone, Jr., Regionalism or Parochialism: The Land Use
Planners Dilemma Boulder, Colorados Danish Plan, 48 U. COLO. L. Rev. 575
(1977) (describing the extraterritorial effects of Boulders growth management efforts
28


The more sensible view is that both land use and housing are interlinked
planning and management challenges best considered from a regional perspective.
After all, public and private actors pursue land use and housing goals in a regional
context. Local governments know that their attitude towards residential
development will play a significant role in the amount, type, and quality of the local
housing stock. Land use regulations affect where and how people live, many of
whom are employees, which in turn affects employers decisions on where and how
to operate their enterprise. Private developers, too, make decisions on where and
how to develop based on the regional supply and demand for their product.
The Telluride majority declared that the issue of rent control implicates both
state and local interests, and therefore, we find that it is properly characterized as a
mixed concern. The court reasoned that landlord-tenant relations is an area in
which state residents have an expectation of consistency throughout the state. Even
though the ordinance contained alternatives allowing construction of new employee
housing or deed-restrictions on existing housing, the court said, the statute operated
to suppress rental values below their market values and was thus illegal rent control.
It noted that the anti-rent control statute makes no distinction between existing units
and those subsequently developed.
The Telluride majority characterized the states interests as consistent
application of statewide laws in a manner that avoids a patchwork approach to
problems.119 Further, the state has a legitimate interest in preserving investment
capital in the rental market, ensuring stable quantity and quality of housing,
maintaining tax revenues generated by rental properties, and protecting the states
overall economic health.120 And localities like Telluride have a valid interest in
controlling land use, reducing regional traffic congestion and air pollution,
containing sprawl, preserving a sense of community, and improving the quality of life
of [local] employees.121
and arguing for state legislation establishing metropolitan planning councils for each
region to provide for coordinated and orderly solutions for impending shortages of
power and water in the Denver area).
119 Telluride, 3 P.3d at 39.
120 Id.
121 Id.
29


That is, the Telluride majority explicitly recognized the inherently regional
import of land use and housing plans and regulations.
Responding to Justice Kourlis majority opinion, Chief Justice Mullarkey
strongly disagreed that the ordinance was a matter of mixed state and local concern.
The majoritys finding of a state interest in the first factor, the need for uniformity,
is contrary to the General Assemblys consistent refusal to consider land use
regulations as requiring statewide legislation.122 Mullarkey was also not persuaded
by the majoritys assertion that [rjestricting the operation of the free market with
respect to housing in one area may well cause housing investment and population to
migrate to other communities already facing their own growth problems.123 She
first noted the speculative nature of the majoritys statement, and went on to say that
the majoritys extraterritoriality analysis strikes at the fundamental premise of land
use planning, zoning, and development regulations by exalting free operation of the
housing market over the police power of local government to shape the design of a
community.124 The majoritys rationale ignores the fact that the General Assembly,
when considering the role of local government in land use control, has consistently
decided in favor of local prerogative to employ market restrictions to manage
growth.125
Chief Justice Mullarkey continued: the majority characterizes Tellurides
effort to reasonably mitigate the impacts of new development on its community as if
it were imposing a burden on other communities. Yet, Tellurides ordinance is aimed
directly at mitigating the effects on other localities of an ever-increasing public
problem in mountain resorts. Workers cannot afford to live where they work because
122 Id. at 45-46 (Mullarkey, J., dissenting) (citing CRS § 29-20-102 and implicit
recognition by the Colorado Supreme Court in, e.g., Voss v. Lundvall Bros., 830 P.2d
1061,1064-65 (Colo. 1992) (discussing a home rule citys authority to control land
use policy)).
123 Id. at 46 (Mullarkey, J., dissenting).
124 Id. (Mullarkey, J., dissenting) (citing the Local Land Use Act, CRS §§ 29-20-102,
104).
125 Id. The majoritys reasoning countermands the express finding and declaration
of the General Assembly in the Colorado Land Use Act that Colorados rapid growth
and development demands new and innovative measures to encourage planned and
orderly land use development and plan for the needs of residential communities. Id.
(citing CRS §§ 24-65-102(1) and 29-20-102).
30


the housing market left to itself prices out the laborers in favor of tourists and second
home owners. Enabling people to live where they work is a key concept in reducing
pollution, congestion, and demand on transportation infrastructure, such as new or
expanded roads or transit to carry workers from their overnight abodes to where they
earn their wages.126 The majority misanalyzes the extraterritorial impact of
Tellurides ordinance. It has precisely the opposite impact: it attempts to contain the
effects of growth within Telluride. The ordinance assists the livability of people and
communities in the areas surrounding the city of Telluride by addressing the
particular concerns that its geography and demographics present. This positive
effect is of a different character than the negative effects previously recognized by
this court to support a state concern determination.127
In sum, Chief Justice Mullarkey describes the inherently cross-jurisdictional
- i.e., regional nature of land use and affordable housing.
In my opinion, it seems inescapable that both land use planning and housing
are matters of mixed state and local concern. Since the 1970s, the general policy in
Colorado has been for the state to legislatively declare policy for localities to
implement. Most of the key statutes are collected in Title 29 the state statute on
local government. This structuring has been recognized and upheld in a Colorado
Court of Appeals opinion directly addressing the question in the context of land use
planning.128
Given the similarity of the structuring of state and local authority in the
housing acts to the structuring in the land use acts, it seems likely that a court would
rule similarly in the context of housing. Certainly, Colorado courts have already
recognized that state and local regulations on land use planning and housing are
intertwined, as illustrated by various opinions analyzing proposed ballot initiatives
on growth management when Colorado was developing at a blistering pace in the late
1990s and 2000s.x The General Assembly should clear the matter up once and for all
126 Telluride, 3 P-3d at 46-47 (Mullarkey, J., dissenting).
127 Id. at 47 (Mullarkey, J., dissenting).
128 See, e.g., Boulder Builders Group v. City of Boulder, 759 P.2d 752, 753 (Colo. Ct.
App. 1988) (construing Boulders 1985 growth ordinance) (while [state] statutes
express the concern of the state in the area of population growth and development,
this is consistent with a conclusion that the matter is one of mixed local and state-
wide concern).
31


by legislatively declaring that both land use and affordable housing are matters of
mixed state and local concern.
Housing and land use are both regional issues that affect one another.
Thus, both should be planned for and managed regionally in Colorado, in
sync with one another.
The Colorado legislature strongly encourages regional government. Its state
policy to encourage the utilization of single service authorities to provide those
functions, services, and facilities which transcend local government boundaries, thus
reducing the duplication, proliferation, and fragmentation of local governments, and
encouraging establishment of efficient, effective, and responsive regional
government.*'
From the standpoint of rational planning, these two basic problems sprawl
and the lack of affordable housing ought to be considered together. 129 But
currently the planning process for affordable housing provision in most Colorado
localities is separate and independent from planning for land use. The same goes for
day-to-day management of housing versus planning. The only required component
in county comprehensive plans (in only those counties that didnt have a plan as of
2001) is a recreation and tourism element.'3
One of the first statements made by Justice Hobbs in his Telluride dissent is
that CRS § 31-23-207 provides that municipalities may address affordable housing in
the context of their local land use planning regulations. His point was that the
majority should have taken this into account when determining whether Tellurides
inclusionary zoning ordinance was a land use regulation (yes, in his view) or an
economic regulation. But his mention of it is a timely reminder that both the
municipal and county planning acts do contain language encouraging localities to
specifically consider affordable housing in their master plans.
Some cities do so already. For example, the housing element of the Boulder
Valley Comprehensive Plan begins with a statement on the value of housing:
129 DOWNS, supra note 1, at 2.
'3 See CRS §§ 30-28-io6(3)-(5).
32


Healthy communities foster strong families, a sustainable economy and a
sense of belonging among its members. The availability of affordable housing
is at the heart of what it takes to sustain a healthy community. There is no
single solution, and a variety of measures are needed to address the
communitys housing needs. Addressing those needs is essential to
preserving the richness of our communitys perspectives, experiences and
voices. The range of available housing opportunities helps to define a
community. The comprehensive plan, which identifies the desired locations,
densities and types of housing planned for Boulder, is an integral link in the
communitys housing strategy.131
Boulders goal is for 10% of the communitys housing stock to be permanently
affordable. The citys Housing and Human Services Master Plan describes some of
the policies approved by the city council to accomplish this goal: affordable housing
requirements for new residential development; funding for non-profit and for-profit
affordable housing developers; certain fee waivers and subsidies; regulatory and land
use incentives; supportive policies and zoning; and density or height bonuses, after
consultation with the community, Planning Board and City Council.132
As a second example from a more regional perspective, the decades-old
housing element in the Boulder County Comprehensive Plan lists three residential
goals: (1) a diversity of housing types and densities should be encouraged in order to
assure decent housing for all persons; (2) quality residential areas, which function as
integral neighborhood units with schools, parks and other similar facilities as
centers, should be encouraged; and (3) rehabilitation of existing residential facilities
should be promoted where feasible.133 The plan goes on to list multiple policies for
the county housing authority, similarly brief but commendable: equal housing
opportunity; construction of new units, utilization of existing units, and the
renovation of sub-standard units; dispersal of affordable units throughout the
131 Boulder Valley Comprehensive Plan, internal page 47, available at
http://www.ci.boulder.co.us/files/PDS/BVCP/bvcp.pdf.
132 City of Boulder Housing and Human Services Master Plan, available at
http://www.b0ulderc0l0rad0.g0v/files/C0mmunity%20Services%20and%20Admini
stration/CSA/HHSMP.pdf (see page 13).
1331999 Boulder County Comprehensive Plan: Housing, available at
http://www.bouldercounty.org/lu/bccp/pdf/bccp_with_maps_bookmarks.pdf.
33


county; and policies that support the elimination of exclusionary or discriminatory
practices in zoning, development, and construction.
Thus, the Boulder County Comprehensive Plan speaks to affordable housing
concerns broadly, without divulging too many specifics. Statewide, only about 20%
of counties discuss specific incentives for affordable housing.134 For example, the
Boulder County plan does not mention a policy on manufactured housing or mobile
home parks; statewide, only about 10% of counties do.133
In conclusion, in my view, when localities plan for future land use and make
day-to-day decisions on land use applications, the impact on regional affordable
housing stock should be a mandatory consideration. CRS § 31-23-207 should be
amended such that planning for housing is mandatory. Similarly, in CRS § 30-28-
io6(3)(e) the word may should be changed to shall so that counties are required
to plan for the provision of affordable housing, too, not just recreation and
tourism.136
The best way to shift to a system of synchronized planning and
management for housing and land use is for the state to reallocate
authority for housing to counties qua regions.
Assuming for the sake of argument that many land use issues and housing
markets extend beyond the political boundaries of most cities, what is the right size
for the governmental entity? In my view, counties are the closest surrogate for
region in Colorado, geographically, politically, demographically, and institutionally.
Defining a region as the whole state would not make sense geographically.
Colorado is immensely varied in geography, rising from 5,000 feet above sea level on
the rolling eastern grasslands to 14,000 feet along the spine of the Rockies.
Constraints and opportunities will be starkly different in counties located at these
two extremes and many places in between, to be sure. But within most counties,
134 See Colo. Dept of Local Affairs, Div. of Local Govt, 2004 Colorado Local
Government Land Use Survey,
http://www.dola.state.co.us/dlg/osg/docs/county%20survey%20form.pdf.
133 Id.
136 See CRS § 30-28-106(5).
34


typically there will not be so much geographical distance and variation that a county
planning and housing staff could not understand, monitor, and manage the terrain.
Politically, Colorado is a swing state. The difference between El Paso and
Denver County in political majority, two regions less than an hour apart by car, is just
one example. Planning and managing for land use and housing from a top-down,
statewide level only would not permit the states distinctly different regions to
fashion solutions in accordance with each areas political philosophy on the
appropriate amount of government intervention in the housing market.
Counties vary widely across the state demographically, too. This matters
when it comes to land use and housing. Is it the region a nearly built out urbanized
area or a sparsely populated rural preserve? Is it mostly populated by wealthy
Caucasian baby boomers or younger, poorer Hispanic migrant workers? Is the local
economy resort driven, with many temporary visitors and empty second homes in
the county, or information driven, teeming with urbanites and industrial chic lofts?
The regional answers to these questions and many more should drive regional land
use and housing decisions; a statewide, top-down approach wouldnt work here
either.
From an institutional capacity perspective, it seems that most Colorado
counties already have the capacity to plan for and manage land use and housing for
the region, and those that dont could. Counties have significant and mostly
adequate existing infrastructure to deal with housing. Many have housing
authorities already and thus some amount of staff and in-house expertise, even if
under the current structure, these agencies are often not dealing with as many units
or vouchers as the largest municipalities within the countys borders. And most have
planning staff that inform local decisions on land use matters. Counties are run by
elected officials in Colorado, just like municipalities, so shifting authority away from
cities and towns to counties would not mean sacrificing political accountability.
Because counties are fully functioning governmental entities, they have the authority
to enact laws and enforce them, to tax and raise funds through other methods of
public finance, and to spend those funds as permitted by state law. Existing and
potential funding streams could be put to good use coordinating land use and
housing planning and management. Lastly, many counties will have significant
working relationships with local municipalities and neighboring counties on other
governmental issues that can be relied upon in dealing with regional housing and
land use challenges, too.
35


Allocating more authority to plan and manage affordable housing at the
county level would also unravel much of the preemption entanglement seen in
Telluride. To explain, a brief summary of how state law meshes with local law in
Colorado is necessary.
A statutory locality like Boulder County is a political subdivision of the state.
Such a county is not an independent governmental entity existing by reason of any
inherent sovereign authority of its residents; rather, it exists only for the convenient
administration of the state government, created to carry out the will of the state, 137
Statutory localities possess only those powers expressly granted by Constitution or
delegated to them by statute.138 The powers delegated to counties by the General
Assembly operate to confer all of the implied powers reasonably necessary to the
proper exercise of those powers that are expressly delegated, but no more (aka
Dillons Rule).139
The rules are slightly different for home rule counties, although there are only
three in the state: Denver, Pitkin, and Weld. The authority of home rule localities is
derived from the state constitution and allows for local governance over matters of
local concern. Local governments are free to draw upon any and all authority
delegated by the General Assembly, and home rule cities derive additional authority
from their charters.140 Theoretically, home rule brings government closer to the
residents...and gives them the authority to manage their own affairs.141 Changes in a
home rule charter are permitted by a majority vote of the residents. Home rule
counties are required to provide all mandatory programs, services and facilities
required by state law. A home rule county is permitted to provide such permissive
programs, services, and facilities as may be authorized by state law. In this sense,
137 Bainbridge, 929 P.2d at 699 (internal quotes omitted). See COLO. CONST., art. XIV
(establishing the organization and structure of non-home rule counties).
138 See, e.g., Pennobscot, 642 P.2d 915.
139 Id.
140 Colo. Dept of Local Affairs, Office of Smart Growth, Land Use Planning in
Colorado, available at
http://www.d0la.state.c0.us/dlg/0sg/d0cs/Land%20Use%20Planning%20In%20C0l
orado.pdf.
141 Weld County, Home Rule Charter, http://www.co.weld.co.us/about/home-
rule.html. See also http://www.co.weld.co.us/about/homerulechart.html.
36


home rule counties enjoy no more prerogatives than statutory counties.142 So how
does a court determine if a local regulation is preempted by a state statute? Several
factors play a role.
There are three ways that a state statute can preempt a county regulation: (l)
the express language of the statute may indicate preemption over local authority; (2)
preemption may be inferred if the statute impliedly evinces a legislative intent
completely to occupy a given field; (3) local law may be partially preempted where its
operational effect conflicts with the application of the statute. These three situations
are now described in further detail.
First, express preemption arises when the express language of the statute
indicates the states intent to preempt all local authority over the given subject
matter.1^ We may expect, when preemption applies, that the legislature will have
provided a clear and unequivocal statement of intent to prohibit the exercise of local
government authority in matters of shared state and local interest.144
Second, the determination of whether the legislature intended to completely
occupy a given field to the exclusion of all other regulation must be measured not
only by the language used but by the whole purpose and scope of the legislative
scheme, including the particular circumstances upon which the statute was intended
to operate. 14s Preemption of a local regulation may be inferred if the state statute
impliedly evinces a legislative intent to completely occupy a given field by reason of a
dominant state interest. But legislative intent to preempt local control over certain
activities cannot be inferred merely from the enactment of a state statute addressing
certain aspects of those activities.
Third, counties are statutorily prohibited from adopting an ordinance that is
in conflict with any state statute.146 But where the regulated matter is of both state
and local concern, a local regulation and a state statute may coexist, with both
142 Colorado Counties, Inc., http://www.ccionline.org/counties.htm.
143 Bainbridge, 929 P.2d at 710-711 (citing La Plata County Bd. of Commrs v.
Bowen/Edwards Assocs., Inc., 830 P.2d 1045,1056-1057 (Colo. 1992)).
144 Id.
145 Id. (internal quotes omitted).
146 Wilkinson v. Pitkin County Bd. of Commrs, 872 P.2d 1269 (Colo. Ct. App. 1993)
(citing C.R.S § 30-15-411).
37


remaining effective and enforceable as long as they do not contain express or implied
conditions that irreconcilably conflict with each other, 147 When the effectuation of a
local interest would materially impede or destroy the state interest, an operational
conflict exists and the state statute will partially preempt the local law. In
determining whether local regulations are in operational conflict with state statute or
regulation, courts will construe the local regulations, if possible, so as to harmonize
them with the applicable state statutes or regulations. The existence of an
operational conflict is a factual determination that must be resolved on a fully
developed evidentiary record.
Again, the rules are slightly different for home rule localities. In determining
whether the state interest is sufficient to justify preemption of home rule authority,
four factors drive the analysis: (1) the need for statewide uniformity of regulation; (2)
the impact of the municipal measure on individuals living outside the municipality;
(3) historical considerations concerning whether the subject matter of the municipal
measure is one traditionally governed by state or local government; and (4) whether
the state Constitution specifically commits the particular matter to state or local
regulation.148 * *
For purposes of determining a home rule municipalitys powers, whether a
matter is one of state or local concern is a legal issue subject to de novo review, w
Here, courts take the totality of the circumstances into account. ^ Although the
General Assemblys declaration that a matter is of statewide concern is not
conclusive, such a declaration is afforded deference in recognition of the legislatures
authority to declare the public policy of the state in matters of statewide concern, 's1
Even if a home rule city has considerable local interests at stake, a particular issue
may be characterized as one of mixed local and statewide concern, for purposes of
147 Colo. Mining Assn v. Summit County Bd. of Commrs, 170 P.3d 749 (Colo. Ct.
App. 2007); Bainbridge, 929 P.2d at 712 (citing C&MSand & Gravel v. Boulder
County Bd. of Commrs, 673 P.2d 1013,1016 (Colo. Ct. App. 1983)). To the extent
that statutory provisions conflict, the specific provision prevails over the general,
unless the seemingly conflicting provisions may be construed to give effect to both.
Bainbridge, 929 P.2d at 698 (citing CRS § 2-4-205).
148 Id.
14t> Id.
>5 Id.
Id.
38


determining a home rule municipalitys powers, if sufficient state interests also are
implicated.152 153
If the matter is one of statewide concern, home rule cities may legislate in that
area only if the state Constitution or a statute authorizes the legislation; otherwise,
state statutes take precedence over home rule actions.155 See, e.g., the state
prohibition on rent control upheld over a local inclusionary zoning ordinance in
Telluride,154 Since Telluride, and relying on that decision for support, the Colorado
Supreme Court has held that a home-rule citys interest in controlling land uses
within its territorial limits is overruled by the states interest in fulfilling its statutory
obligations to place and supervise adjudicated delinquent children in foster care
homes pursuant to uniform, statewide criteria.155
In sum, the preemption doctrine is used to establish priority between
potentially conflicting laws enacted by various levels of government.
So how would a shifting of responsibility for affordable housing matters to
counties by the state clear up preemption entanglements? In statutory counties, such
a move would allow for the state to set policy on planning and managing housing to
be carried out by each county. Importantly, this would still allow for day-to-day
planning and management to occur tailored to local considerations housing supply
152 Telluride, 3 P.3d 30 (citing Colo. CONST., Art. XX, § 6).
153 Town of Telluride v. Lot Thirty-Four Venture, L.L.C., 3 P.3d 30 (Colo. 2000)
(citing Colo. Const., Art. XX, § 6).
id.
155 City of Northglenn v. Ibarra, 62 P.3d 151,159 (Colo. 2003) (citing Telluride, 3
P.3d at 32-33, 35). As we acknowledged in Telluride, local laws may overlap with
state laws, even though this is not clear from the language of either the local or state
laws. In Telluride, we evaluated the overlap between a local ordinance requiring
owners engaging in new development to mitigate the effects of that development by
generating affordable housing units and a state statute prohibiting local
municipalities from enacting rent control legislation. The local statute did not
require rent control for new development and the state statute did not define what
constituted rent control. However, the local law, as applied, set maximum rental
rates per square foot and capped rental rate increases for units designated as
affordable housing. Considering this impact, we found that the local law constituted
rent control and implicated the state statute. Id.
39


and demand, the regional real estate and lending climate, unique geography and
development patterns, and so on.
The three home rule counties could have slightly more power than statutory
counties to deal with housing, on housing issues of demonstrably local concern only
(perhaps a public housing location choice between two similar, proximate parcels).
But on housing matters of statewide concern, home rule counties could only legislate
in the area where the state constitution or a statute authorizes the legislation;
otherwise, state statutes would take precedence over home rule actions. And on
housing issues of mixed state and local concern, a county regulation and a state
statute could coexist with both remaining effective and enforceable so long as they
did not contain express or implied conditions that irreconcilably conflicted with each
other.
Of course, there will be challenges in moving towards a regional model.
Many local government players, not to mention voters, may continue to view
housing and land use as fundamentally local meaning city or town level issues,
best dealt with by local governments. Some county officials may be reluctant to take
responsibility for problems they view as caused by municipal actions or urban not
rural forces. Cities and counties dont always have perfectly aligned incentives or
objectives; certainly, changing the rules of the housing and land use games could
introduce new sources of friction. Cities and towns may not initially trust county
governments to adequately address their housing issues, or they may just not like
counties having greater jurisdiction in incorporated areas, even if only on a limited
set of issues. And the transition of asset and debt ownership, of employees and
management hierarchies, from municipalities to counties although a short-term
hassle would not be trivial.
Undoubtedly, immense expertise and specialization exists in some municipal
housing authorities today that must not be lost. Consolidation of housing authority
in counties would cause some employees to fear that they will lose their jobs and that
customer service will permanently suffer (e.g., for non-development-related services
like counseling, property management, training and education programs, etc.).
While there would be some administrative consolidation, most county housing
authorities would still need a wide range of expertise and staff to execute their
mission. Theres no reason why a county housing authority couldnt retain, for
40


example, urban housing experts and create enough urban branch offices throughout
the region that service is improved instead of diminished.
In addition, nationwide, states are historically not very willing to delegate
much power to regional bodies. Such bodies have largely been limited to making
studies, giving advice, and attempting coordination.186 In Colorado, see, e.g., the
Northwest Colorado Council of Governments (NWCCOG), a regional planning
commission that regularly publishes studies related to workforce housing in
Colorados central mountain resort region, but has little power to do much about the
problem, 18? Pitkin County, on the other hand, a member of NWCCOG, can do
something about the problem. It acknowledges the benefits of regional planning in
its land use regulations: the County supports planning efforts between counties,
towns, state and federal agencies. These cross-jurisdictional approaches are most
notably important in ... housing.188
The recent failure of a proposal to shift to a regional housing authority in Las
Vegas, Nevada underscores the significant although not insurmountable hurdles
to overcome if existing municipal housing authorities are to be consolidated.
Housing cannot be managed on a regional basis without the strong
commitment of local elected officials. According to the Executive Director of the City
of Las Vegas authority, Carl Rowe, the idea of consolidating the three housing
authorities in the Las Vegas area is a dead issue.The North Las Vegas Housing
Authority, a smaller organization who needed help, strongly supported
consolidation. The other two authorities in the area, Clark County and City of Las
Vegas, agreed with the idea and signed an agreement to consolidate, which was then
submitted to HUD for approval. HUD approved the agreement, offering a number of
incentives to consolidate. There was only one problem: the housing authority
186 Reynolds, supra note 117, at § 142.
187 See Northwest Colorado Council of Governments website,
http://www.nwc.cog.co.us/Programs/Reports%20&%2oStudies/reports_&_studies.
htm.
188 Pitkin County Land Use Policy Guidelines, Sept. 2002, at 10, available at
http://www.aspenpitkin.c0m/pdfs/depts/7/landusepolicyguidelines.pdf.
189 Telephone interview with Carl Rowe, Executive Director of the City of Las Vegas
Housing Authority, on Mar. 17, 2008.
41


directors neglected to first obtain approval for the idea from the elected officials in
their respective jurisdictions.
The politicians balked. The idea of accepting responsibility for providing
services for constituents outside their jurisdiction was a non-starter. The needs of
the current clientele of Clark County, for example, were seen as too different from the
needs of those in the inner urban core served by the City of Las Vegas. Concerns
were also raised over accepting responsibility for the financial history and current
obligations of the other housing authorities. Currently, the three housing authorities
operate under a memorandum of understanding that allows for boundary-crossing
for section 8 inspections, to make such administrative activities more transparent
from the clienteles point of view. As a result, part of the resistance to consolidation
seems to have stemmed from a feeling that the majority of the benefits to be gained
from working together could be realized by simply negotiating similar agreements,
short of reorganizing under the umbrella of one housing authority. Lastly, some Las
Vegas officials seemed to be concerned that the authority who managed the greatest
number of assets and resources prior to consolidation would dominate management
after consolidation. All in all, the idea of consolidation really touched a nerve for
some Las Vegas leaders, particularly in Clark County, where the Housing Authority
director was sacked shortly after this series of events.
A management consultant in his previous professional life, Mr. Rowe thinks
that combining the three local housing authorities has much to recommend it.
Consolidation of like entities is generally desirable, unless customer service suffers,
he said.160 Here, customer service would theoretically improve after consolidation,
and regional management would result in substantial administrative savings. For
example, only one headquarters building would be required, and only one
headquarters staff within it. (Few staff would need to be let go, however, because the
need for, e.g., unit inspectors and § 8 program managers, would likely remain about
the same.) Were all three Las Vegas area authorities to combine, one entity would be
managing about 2,000 units and 8,000 vouchers not too much for one group to
handle, given the much larger programs in New York, Los Angeles, and Chicago.
Indeed, many procedures and prerequisites for obtaining funding, such as generating
the Consolidated Plan, would likely be easier to accomplish. Theoretically, most of
the savings in administrative costs could be reprogrammed to better meet the
mission of the housing authorities.
160 Rowe interview, supra note 17.
42


The lesson from Las Vegas is that opposition from local leaders can be enough
to quash the idea of managing housing on a regional basis, notwithstanding strong
support from HUD. On the flip side, Mr. Rowe emphasized, real and perceived
administrative hurdles associated with combining existing authorities can be
overcome if local elected leaders are committed. The key to obtaining that
commitment seems to be a combination of recognizing a significant need for better
provision of high-quality affordable housing and recognizing regional management
as the most efficient way to meet that need.
Even if a major reallocation of state-granted authority to counties doesnt
happen, there are several effective mechanisms under existing Colorado
law to manage housing in conjunction with land use on a regional basis.
Tool l. Multi-jurisdictional housing authorities.
In his dissent in Telluride, Justice Hobbs went so far as to help Telluride
redesign its ordinance by pointing out the exception in the anti-rent control statute
for housing authorities, namely, the statute contemplates that Telluride could
establish an authority or agency to manage rent-controlled housing.161 Telluride
later did just that, entering into an intergovernmental agreement with San Miguel
County in 2003 to establish a multi-jurisdictional authority (MJHA).162 163
The Colorado state legislature encourages local governments to make the
most efficient and effective use of their powers and responsibilities by cooperating
and contracting with other governments to provide any function, service, or facility
lawfully authorized to each, establishing a separate legal entity to do so if desired. l63
Most of the authority to actually produce and manage affordable housing is
delegated to the local level. There are three kinds of housing authorities: municipal
(city or town), county, and multi-jurisdictional. The legislative declaration
161 Telluride, 3 P.3d at 48 (Hobbs, J., dissenting).
162 IGA between the Town of Telluride and San Miguel County, available at
http://www.smrha.org/RFP/Intergovernmental%20Agreement.pdf.
163 Colo. Dept of Local Affairs, supra note 140. See CRS §§ 29-1-201 (legislative
declaration on intergovernmental relationships) and 29-1-203 (concerning
intergovernmental relationships, allowing governments to contract).
43


mandating municipal housing authorities is focused on urban problems like unsafe
or unsanitary conditions arising from overcrowding and concentration of
population.l64 County housing authorities, on the other hand, were authorized not
mandated with the provision of decent, safe, and sanitary housing for rural
residents in mind: that is, agricultural and other low-income workers and their
families.* 165
There is no legislative declaration of intent in the third housing authority
statute, which authorizes MJHAs; however, the authority to establish MJHAs is
located in the intergovernmental relationships part of the budget and services article
of Title 29 (the local government title).1 The statute grants MJHAs substantially
the same powers as the familiar city and county housing authorities possess, with one
significant addition: the power to impose a multi-jurisdictional tax. Proceeds from
such a tax can offset the often prohibitive cost of developing affordable housing.
Although few MJHAs exist yet in Colorado, most are funded through a
combination of sources. Generally, the cities and counties in the service area will
contribute a portion of the MJHAs operating expenses, but not enough for the major
costs of affordable housing like property acquisition and infrastructure development.
Sometimes major local employers who benefit from the work of the MJHA contribute
funds, like the ski areas in Summit County contribute to that regions combined
housing authority. MJHAs can also generate some funds from fees collected for
consulting, development, rental property management, and administration of the
section 8 voucher program. Assuming that the creation of a MJHA results in a
scaling back or elimination of previously existing city and county housing authorities,
MJHAs should be able to tap into funds previously directed to those traditional local
housing authorities. These might include CDBG/HOME moneys, property and
excise taxes, and cash-in-lieu fees paid by developers under inclusionary zoning
programs.
But if an MJHA wants to do more than simply manage a regions affordable
housing stock if it wants to become a housing developer its likely that it will need
a more significant source of funds. As mentioned above, apart from its regional
orientation, the key difference between a MJHA and local housing authorities is its
authorization to ask voters to approve a tax. Summit County became the first region
l6, See CRS § 29-4-202(1). Accord Colorados City Housing Law. Id. §§ 29-4-101-
123.
165 See id. § 29-4-501(1).
44


in Colorado to create an MJHA when voters approved a sales tax to fund the
Combined Housing Authority in the fall of 2006. Now 12.5 cents of every $100 of
sales in Summit County are dedicated to affordable housing purposes. The good
news is that once a MJHA is up and running as a developer, cash flows from
developed units can help underwrite MJHA operations.
In that same 2006 election, Summit County voters also approved a county-
wide impact fee for affordable housing. Such an impact fee is only authorized after
the MJHA obtains voter approval of a sales tax (and meets several other additional
requirements and limitations in the MJHA statute). Targeting permanent county
residents, Summit Countys MJHA assists locals with homebuyer education, down
payment assistance, home rehabilitation loans, Housing Choice § 8 Vouchers, and
buying and selling deed restricted attainable housing.166 These deed-restricted unit
transactions can also generate hundreds of thousands of dollars in fees for an
authority annually, although these revenues are subject to the vicissitudes of the
broader real estate market, of course.167
Most regions in Colorado with M JHAs have not chosen to ask voters to
approve a new tax for affordable housing under the MJHA statute for some reason.
The situation in Aspen/Pitkin County Housing Office (APCHA) may be illustrative.
Housing in both jurisdictions has been managed jointly by APCHA under an
intergovernmental agreement (IGA) executed in 1982. The city and the county
split the annual operating subsidy for running APCHA. In the most recent election,
Roaring Fork valley voters extended an existing sales tax an affordable housing and
day care trust fund by a 66-34 margin.168 This fund, administered by APCHA and in
existence for nearly two decades now, was one of three county housing trust funds
166 See Summit County Combined Housing Authority website,
http://www.summithousing.us/.
167 John Colson, Bad Market Doesnt Mean Aspen Housing Office Sits on Laurels,
Aspen Times, Oct. 8, 2008. Year-to-date revenues from Aspens real estate transfer
tax are down 35%, too. See City of Aspen Housing Real Estate Transfer Tax Report
for September 2008,
http://www.aspenpitkin.com/pdfs/depts/45/HousingRETT.pdf. For more on the
transfer tax, see the citys website,
http: //www.aspenpitkin.com / depts / 45/tax_realestatetransfer .cfm.
168 All of these election results can be found at the Pitkin County Clerk & Recorder
website, http://www.aspenpitkin.eom/depts/5/n_4_08_final_unofficial.htm.
45


nationwide to report collecting more than $10 million in annual revenue in 2007.169
Voters also extended Aspens crucial real estate transfer tax by a 53-47 margin.170
APCHA gets the majority of its $12 million annual budget from this revenue stream.
Thirdly, when asked about the principal affordable project currently under
construction in the area, Burlingame Ranch, voters supported the highest proposed
density by a 56-44 majority, as well as an increase in Aspens debt for the project of
$12 million by 52-48. Thus, despite the continuing serious affordability crisis
throughout Pitkin County, perhaps its not surprising that the APCHA board has
elected not to further tax voters under its MJHA authority.171
169 Mary E. Brooks, Housing Trust Fund Project Center for Community Change,
Housing Trust Fund Progress Report 2007, at internally paginated 27, available at
http://cccfiles.org/shared/publications/downloads/HTF%2007%20final.pdf.
190 The Colorado legislature should repeal the provision of the Taxpayers Bill
of Rights (TABOR) that prohibits new or increased real estate transfer taxes
in Colorado, COLO. CONST. Art. 10, § 2o(8)(a). These taxes can provide
significant funds for affordable housing. Akin to a sales tax on the purchase of
real property, transfer taxes can help offset the exclusionary effects of real
estate speculation. Interestingly, all 12 localities that had enacted this tax
prior to TABOR (and are now, thus, grandfathered in) were resort
communities: Aspen, Avon, Breckenridge, Crested Butte, Frisco, Gypsum,
Minturn, Ophir, Snowmass Village, Telluride, Vail, and Winter Park.
Nationwide, real estate transfer taxes are a well-established and accepted tool;
as of 2006, 35 states relied on them. Federation of Tax Administrators,
http://www.taxadmin.org/fta/rate/B-0306.pdf.
171 Phone interview with Cindy Christensen, APCHA Operations Manager, Oct. 21,
2008. Pitkin County also partners with several surrounding localities to receive
Colorado Heritage Planning Grants from the state Office of Smart Growth. The most
recent award given was for an effort to develop a regional financing mechanism for
affordable housing in the Roaring Fork Valley. In addition to Pitkin County, the
2007-08 Roaring Fork Affordable Housing Implementation Project award was given
to Carbondale, Garfield County, Aspen, Basalt, Snowmass Village, and the Aspen-
Pitkin County Housing Authority. Carbondale, Garfield County, Basalt, and
Glenwood Springs signed an IGA establishing the Roaring Fork Community Housing
Fund in 2004, available at
http://www.hmcnews.org/housing/housingfund/fundprosposal/IGAversions/Roari
ng%2oFork%2oCommunity%2oHousing%2oFund%20io-8-2004.pdf. The purpose
of this project is to research and convene the counties and municipalities to educate,
discuss, and select regional financing options and land use strategies for affordable
housing.
46


The board of directors for MJHAs is typically composed of elected official
from each of the towns & counties involved. For example, the Pitkin County
Commissioners and the Aspen City Council jointly oversee APCHAs operations. In
Summit County, the board of directors from the housing authority that predated the
MJHA moved into an advisory role after the MJHAs creation in 2006. Notably,
theres no requirement that every municipality in a region sign on to a MJHA. For
example, the Town of Snowmass Village, located only 14 miles downvalley from
Aspen, elected not to join APCHA; instead, the town runs its own housing
authority.172
One possible long-term strategy for accelerating the provision of affordable
housing across Boulder County may be the creation of a MJHA.173 So far, no
Colorado region with characteristics similar to Boulder County has transitioned to an
MJHA approach. The seven existing MJHAs include authorities in Douglas, Routt,
San Miguel, La Plata, Ouray, Summit, and Pitkin/Garfield Counties.174 With the
exception of Douglas County, these counties are primarily rural, located in mountain
resort areas, and no more than one-sixth as populous as Boulder County. In these
mountain resort areas, several factors combined to make MJHAs an attractive
option, including the squeeze put on local affordable housing by the resort-based real
estate market, the relatively small and spread out permanent population that
supports only small and spread-thin local governments, and the ability of MJHAs to
collect a sales tax for affordable housing projects from all taxpayers in the region.
Douglas County is different than the mountain resort regions and most
similar to Boulder County. According to the Housing Partnerships single-family
program manager, the idea of proposing a tax to fund the MJHA has not yet been
seriously considered.173 The impetus for creating the MJHA in 2003 had more to do
172 Colo. Dept of Local Affairs, Div. of Housing, Affordable Housing Programs
Report 2006, available at
http://www.dola.state.co.us/cdh/researchers/documents/Local_govt_Affordable_H
ousing_Program. pdf.
173 Im indebted to Frank Alexander, the Executive Director of the Boulder County
Housing Authority, for this idea.
174 Only five are listed by the Colo. Dept of Local Affairs, Active Colorado Local
Governments by Type (last visited Oct. 23, 2008), but my research turned up seven.
173 Telephone interview with Travis Anderson, Douglas County Housing Partnership,
on Mar. 18, 2008.
47


with the fact that no housing authorities of any kind existed in the four participating
local governments at that point. At this point, the Douglas County Housing
Partnership is still a young authority, however, managing approximately 300 units
and no section 8 vouchers. 176 Currently, staff are paid using funds from HUD or the
four local governments. But now that the Housing Partnership is off the ground,
some of those local governments are beginning to seek out other funding sources
than their own coffers.
The establishment of the Douglas County MJHA was uniquely
straightforward: Because no housing authorities existed yet, concerns related to
transition of asset ownership, expertise in meeting the housing needs of a particular
group of people, and accepting responsibility for previous financial obligations
entered into by another housing authority never came up. On the other hand,
considering the 50% growth rate in Douglas County from 2000 to 2006, as the only
housing provider in the area responsible for managing the full spectrum of housing
needs the Housing Partnership has a uniquely challenging future. The ability to
raise funds through a tax to meet these challenges may become more important in
Douglas County over time.
To date there does not appear to be sufficient will to create a MJHA in
Boulder County, although its not clear yet if this fear of the unknown is justified.
Granted, there is not yet enough public outcry about the lack of affordable housing to
make the issue a priority for political leaders as well as housing providers. In
addition, developing and operating affordable housing is exceedingly complicated,
and as a result, over time various providers in different localities have specialized in
meeting the different needs of people situated in different spots on the housing
bridge. Therefore, wholesale reorganization after many years of working within a
particular framework, for better or for worse, may be regarded as disruptive and
ultimately just rearranging the deck chairs on the Titanic. It is axiomatic that its
easier to get things done in smaller, nimbler groups where established relationships
exist among the participants and all the repeat players know how to navigate the
existing bureaucracy.177
176 The Englewood HA manages approximately 100 section 8 vouchers on behalf of
the Douglas County Housing Partnership.
177 The inability to organize regional governments in America has left these kinds of
issues to local decisionmaking, with state control being the only way to restrain local
selfishness. Gerald E. Frug, Beyond Regional Government, 115 Harv. L. Rev. 1763,
48


Despite these concerns about transitioning from the current
compartmentalized approach, creating an MJHA could mean substantial efficiency
gains. Given the willingness of Boulder County voters to tax themselves for open
space in the past, one wonders if establishing an MJHA could be the first step in
establishing a mechanism for the same constituency to tax themselves for affordable
housing in the future. Whether the various housing providers in Boulder County
should join forces deserves a much more refined study than the granular treatment
above, but this initial review indicates that they ought to take seriously the state
legislatures call to rally under a regional umbrella.
In sum, localities should strongly consider establishing a MJHA, despite
temporary difficulties in transitioning from the current division of labor between
existing housing authorities. Multiple benefits will accrue: such an authority could
more accurately assess and address regional needs, raise revenue from regional
residents for affordable housing projects that benefit the whole region, reduce
overhead costs through administrative consolidation, and streamline coordination
with federal and state funding authorities.
Tool 2. Intergovernmental agreements.
IGAs are a well-known tool in Colorado for managing land use on a regional
basis.1?8 Theyre less well-known for their use in managing housing issues, although
they have just as much potential to be useful here, as demonstrated by two recent
IGAs in Boulder County. First, some quick background on the history of land use
planning and housing in this region. *
1765-66 (2002) (proposing a new kind of metropolitan organization based on ideas
derived in part from the structure of the European Union).
'78 See, e.g., Steven J. Roy, Cooperative Management of Urban Growth Areas
through IGAs, 29 Colo. Law. 85 (2000); George J. Cerrone, Jr., The IGA: A Smart
Approach for Local Governments, 29 Colo. Law. 73 (2000); Colo. Dept. of Local
Affairs, Office of Smart Growth, Planning for Growth: Intergovernmental
Agreements in Colorado (2006), available at
www.dola.state.co.us/dlg/osg/docs/IGAhandbook.pdf.
49


Land use control and affordable housing in Boulder
Across much of the country, growth management is little more than a
sophisticated unlimited growth accommodation strategy.179 Not so in the city or
county of Boulder. The city has long proactively managed its growth by employing
an urban growth boundary, annual caps on residential building permits, and the
blue line beyond which water service will not be approved, among other tools.180
The Boulder County regions severe shortage of affordable housing is caused
at least in part by growth management in the central city, Boulder. Whether a long
history of proactive management or merely increasing consumer demand is the
primary cause of the lack of affordable housing in Boulder is debated.181 The citys
land use control efforts are at least significant enough that developers have tried to
litigate their way out of compliance.182 To be sure, the results of Boulders growth
179 Tarlock & Van de Wetering, supra note 48 (Cities generally accept growth levels
as a given and seek to accommodate it by channeling development within urban
growth boundaries and by using subdivision exactions to force new residents to pay
directly the costs of new public services.).
180 For a good description of Boulders various growth management efforts, see
Katharine J. Jackson, The Need for Regional Management of Growth: Boulder,
Colorado, as a Case Study, 37 Urb. Law. 299 (2005) (arguing for regional growth
control in Colorado).
181 Compare Tarlock & Van de Wetering, supra note 48 (Some of the highest
housing prices are found in areas with the most admired growth control programs:
Boulder, Colorado; Portland, Oregon; and the San Francisco Bay Area.) and Thomas
Miller, Must Growth Restrictions Eliminate Moderate-Priced Housing?, 52 J. Am.
Plan. Assn. 319 (1986) (arguing that researchers have been too quick to blame
growth controls for the scarcity of moderately priced housing, using the availability
of small, detached units in Boulder as evidence). Note that Millers research is now
more than 20 years old. For similar comments, although of only slightly more recent
vintage, see S. Mark White, Development Fees and Exemptions for Affordable
Housing: Tailoring Regulations to Achieve Multiple Public Objectives, 6 J. Land
USE & ENVTL. L. 25 (1990) (citing studies indicating that the decline in low and
moderate income housing was lower in Davis, California and Boulder, Colorado than
in surrounding communities without growth control) (noting that Both cities
incorporated mechanisms to relieve the price-increasing effects of the ordinances on
affordable housing.). See also Lidstone, Jr., supra note 118.
182 See, e.g., Boulder Builders Group, 759 P.2d 752 (builders and property owners
failed to obtain a declaratory judgment that Boulders adoption and implementation
50


management the lack of endless sprawl (relatively speaking) and hillside
development, the abundance of parks and open spaces has positively affected
market demand by making the area more desirable for many consumers. And its
indisputable that as land supply dwindles and the reputation of the city as an
excellent place to live grows, housing prices have skyrocketed. l83 The market price of
the average single-family home in the city of Boulder was about $450,000 in
2006.l84 And according to HUD, Boulder has the highest two-bedroom fair market
rent of all the metropolitan areas in the state. l8s What happens in the City of Boulder
market happens to the markets across Boulder County, albeit in an attenuated
fashion in some cases.
Boulder has tried to mitigate the effects of its land use control efforts on
affordable housing in plans, regulations, and funding mechanisms. The role of
housing goals in the citys plans was summarized briefly above.183 * 186 Boulders land use
regulations include an extensive section on inclusionary zoning.187 The ordinance
includes standard provisions on income eligibility, the period during which resale
prices are controlled, and the options for developers: on-site units, cash-in-lieu, land
dedication, or off-site dedication. But Boulders ordinance also includes less
standard features, such as guidelines for location and design of affordable housing
of a growth ordinance, under which it limited number of building permits issued for
new dwellings each year, was beyond the scope of its authority as a locality).
183 See statistics in Jackson, supra note 180, at 313.
184 Univ. of Colo. Leeds Sch. of Business, Affordable Housing in Boulder, Colo., Jan.
7, 2008.
l83 See Dept of Housing & Urban Development, Fair Market Rents for Existing
Housing, Fiscal Year 2008. Statewide, the two-bedroom fair market rent for 2008 is
$854. Of the non-metropolitan counties, only Pitkin, Eagle, Summit, San Miguel
(Telluride), and Routt Counties (Steamboat Springs) had higher two-bedroom fair
market rents than Boulder. Interestingly, all of these counties either have already
created an MJHA or, in the case of Eagle County, are currently considering creating
one. Statewide, the two-bedroom fair market rent for 2008 is $854.
186 See supra, text accompanying notes 131-132.
187 Boulder Rev. Code §§ 9-13-1-12, available at
http://www.bouldercolorado.gov/files/PDS/New%20LUC/Training%20Copies/9_1
3_tra.pdf.
51


within market-rate developments, minimum sizes for permanently affordable units,
and livability guidelines and standards.188
As an important aside, the Boulder County regions second largest city,
Longmont, also includes some inclusionary zoning provisions in its development
standards.189 Apart from the standard provisions, the Longmont ordinance
emphasizes that affordable housing in a residential development must be mixed-in
and not segregated from market-rate units in any way. Affordable units must also be
similar in exterior appearance to market-rate units and they must comply with
applicable dimensional standards. These are also progressive, well considered
requirements.
Land use control and affordable housing in Boulder County
The Boulder County regions severe shortage of affordable housing is also
caused in part by the countys land use control efforts. Like its central city, Boulder
County is renowned nationwide for its use of proactive and progressive land use
planning to preserve its abundance of natural and human capital. Apart from the
consistent enforcement of the goals set out in the Comprehensive Plan through the
Land Use Code, acquisition of property interests in land, the strategic purchase and
transfer of development rights to preserve open space, and intergovernmental
agreements on growth boundaries have helped create the place many know and love
today. As with the city of Boulder, developers and landowners have long tried to find
ways around the countys growth management efforts.190
188 City of Boulder Livability Guidelines and Standards for Permanently Affordable
Housing, http://www.bouldercolorado.gov/files/HSHHS/livabilitystandards~
2006.pdf.
189 See Longmont Municipal Code § 15.05.220, available at
http://www.municode.com/resources/gateway.asp ?pid=i4542&sid=6.
190 See, e.g., Crider v. Boulder County Bd. of Commrs, 246 F.3d 1285 (10th Cir.
2001) (residential property owners lose a suit alleging violations of equal protection
and substantive due process in negotiation of an IGA placing their properties in a
rural preservation zone for 30 years); Jafay v. Boulder County Bd. of Commrs, 848
P.2d 892, 893 (Colo. 1993) (describing efforts to use the 1978 Comprehensive Plan to
direct new urban growth into community service areas, where a full range of urban
services would be provided, and to correspondingly limit the economic burden of
urban sprawl on taxpayers) (also describing 1985 county-wide legislative rezoning
52


Regional management of land use in Boulder County has worked quite well.
The County set out to keep the city in the city and the country in the country and it
has largely succeeded. Driving up to Boulder from Denver on Highway 36, one
hardly needs the road sign to mark the political boundary line from Broomfield to
Boulder County, as the landscape shifts from suburban sprawl to sprawling open
space. This state of affairs contrasts sharply with the typical situation in areas of high
growth, where municipalities compete with one another as population increases to
annex land surrounding existing urbanized areas. These regional land use policies
set in place thirty years ago have resulted by design in a very high quality of life for
many Boulder County residents. One of the primary intended consequences of these
policies was to attract both employers and employees to the area and, as planned,
today Boulder County is in great shape economically speaking.
But an unintended consequence of the strong, effective, regional management
of land use in Boulder County is the current dearth of affordable housing. These
days, quality of life doesnt come cheap. Like Boulder, the County has tried to
mitigate the effects of its growth management efforts on affordable housing in plans,
regulations, and funding mechanisms, but to a slightly lesser degree. This may be
because the cities of the county have many more residents and, therefore, much more
residential development than the unincorporated areas.
The role of housing goals in the countys plans was summarized briefly
above.191 Although the Boulder County Comprehensive Plan has served its residents
and environment well in providing checks and balances to the relentless
consumption of land and the loss of the many types of sustaining resources that
those lands provide, Boulder County leaders felt it was time to add a new
Sustainability Element to the Comprehensive Plan in 2007. This language and more
was intended to establish a rational basis for the new regulations on, among other
things, residential structure size. As further described below, Boulder County just
added a sophisticated expansion to its transferable development rights program that
will theoretically add to the countys affordable housing stock.
involving 4,000 properties and 25,000 acres); and Rodo Land, Inc. v. Boulder
County Bd. ofCommrs, 517 P.2d 873, 874 (Colo. Ct. App. 1974) (holding that the
speed and character of the development of a community as a whole must be carefully
considered and the denial of an individual application for rezoning is frequently
necessary to insure an orderly pattern of growth in the entire community).
191 See supra, text accompanying note 133.
53


On the regulatory front, the county does not have inclusionary zoning
provisions in its land use code. And on the funding front, the county raises few funds
for affordable housing through taxes (which mostly support housing-related services,
not the cost of land or affordable units) and none through impact fees.
Two recent IGAs in Boulder County: Super IGA and the HOME Consortium
To generalize, land use is strongly and effectively regulated by a regional body
in Boulder County but housing is not. There are at least two reasons for this. First,
there has long been strong popular and thus political support for careful land use
planning to preserve open space and the countys rural character. Support for
preserving affordable housing has not enjoyed a similar level of public interest and
political commitment. Second, developing and operating affordable housing is
immensely complicated. Thus, over time various providers in different localities
have specialized in meeting the different needs of people situated in different spots
on the housing bridge. Two recent regional agreements on land use and affordable
housing, respectively, highlight the need for regional management of the provision of
affordable housing: the Super IGA and the Regional HOME Consortium.
Boulder County and nine of ten of its municipalities adopted the Countywide
Coordinated Comprehensive Development Plan in 2003, better known as the Super
IGA.192 This document establishes the planning relationship between the ten
parties in identifying what lands will likely be annexed/urbanized and which will
remain largely rural under county jurisdiction. It is unique in Colorado and provides
citizens and decision makers alike with a unified land use blueprint.1^ By
negotiating IGAs, the County acts as a regional arbiter of competing provincial
municipal interests.
IGAs are legally enforceable contracts that state the roles and responsibilities
of the signatories in their interactions with one another (concerning, in this case,
growth management). The Super IGA does not supersede local comprehensive
plans; rather, it is a tool to help supplement and implement these plans. County
Commissioner Ben Pearlman describes it as a peacekeeping agreement that
effectively stops intergovernmental competition for land.194 Thus, although
192 Ward opted out of the Super IGA, figuring that it had little need to agree to an
urban growth boundary when it is almost entirely surrounded by federal lands.
193 Boulder County Land Use Dept Planning Publications, IGA Summaries.
194 Boulder County Consortium of Cities, Minutes from Apr. 4, 2007.
54


population in the Boulder-Denver corridor is growing feverishly and is projected to
continue to do so over the coming decades, *95 annexation wars should be few and
far between in Boulder County. The Super IGA continues to win national awards
from planning and regional government proponents alike. *96
The key point for purposes of this discussion is that the Super IGA mentions
affordable housing funding and locations as an issue which may be solved through
countywide or regional agreements, although it relegates it to the catch-all section
titled issues for continued countywide discussion.
The Regional HOME Consortium is an IGA signed in 2006 by the City and
County of Broomfield, Boulder County, Longmont, and the City of Boulder. The
City of Boulder, Boulder County, Longmont and Broomfield function as a single
housing market.1^ In contrast to the coordinated, regional approach to land
management, the provision of affordable housing in Boulder County is currently
splintered amongst multiple public and non-public housing providers. Housing
management appears to be split up by location and type of housing assistance. Not
for lack of trying, the multiple housing providers in Boulder County are not meeting
the regional need: one recent estimate puts the shortage at 5,000 units."8
The primary purpose of the Consortium is to work together to implement a
regional HOME program. HOME is the largest federal block grant to state and local
governments designed exclusively to create affordable housing for low-income
households.1" The Consortiums existence is a recognition that because the housing-
related problems of lower-income people do not respect political borders, local
governments in geographically contiguous or overlapping areas must cooperate to
optimize the use of resources. * * *
"5 The state of Colorado has grown 10.5% since 2000. HOUSING COLORADO, Facts
BOOK 2008, at 3.
"6 Most recently, the National Association of Counties honored Boulder County with
the Center for Sustainable Communities Platinum Innovation Award.
"7 City of Boulder, Colorado and Regional HOME Consortium, FY2008
Consolidated Plan Action Plan Update, at 4.
"8 Regional HOME Consortium, 2007-2009 Consolidated Plan for Boulder County &
Broomfield County, Feb. 9, 2007, at 2.
See
http://www.hud.gov/offices/cpd/affordablehousing/programs/home/index.cfm.
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One product of the Consortium IGA is the three-year Consolidated Plan
mandated by HUD as a condition precedent to receiving federal funds. The purpose
of this plan is twofold. First, it seeks to identify housing and community
development needs, priorities, goals, and strategies. Second, it seeks to stipulate how
funds will be allocated to housing and community development activities. In other
words, the Plan is the embodiment of a comprehensive effort of the Consortium cities
and counties to address the housing and community development needs across the
entire Consortium.
As a final thought, the potential for conflict exists between contemporaneous
regional agreements limiting where new residential units can go. In other words, the
Super IGA may stymie the best intentions of the Consortium. But with good
communication between repeat players on planning and management of both land
use and housing issues, these sorts of conflicts should be foreseeable and avoidable.
Tool 3. New uses of the traditional power to regulate land use.
Land use regulation in Colorado is always likely to be an uneasy compromise
between private landowner rights and community interests.200 That said, Colorado
local governments have broad power to regulate land use, arising from multiple
statutory and constitutional sources. On the infrequent occasions on which theyve
been squarely presented with the issue, Colorado courts have usually recognized that
localities can use their authority to regulate land use to promote affordable
housing.201 The notable exception is Telluride, of course, but the court only struck
200 City of Colorado Springs v. Securcare Self Storage, Inc., 10 P.3d 1244,1254
(Colo. 2000) (Kourlis, J., dissenting from the holding that a lawful use can be denied
based on incompatibility with the neighborhood).
201 Typically decisions have concerned cities, not counties. See, e.g., Moore v. City of
Boulder, 484 P.2d 134 (Colo. Ct. App. 1971) (affirming that proposed low-income
housing would be compatible with surrounding land uses and would not adversely
affect the character and integrity of the neighborhood; therefore, citys rezoning of
two-acre tract to allow for the construction of low-income housing upheld) (declaring
matter a question of purely local concern). Accord Spiker v. City of Lakewood, 603
P.2d 130 (Colo. 1979) (upholding a rezoning to allow for federally financed low-
income housing for the aged, despite an ordinance providing for automatic rezoning
to the prior classification upon failure to have the new plat approved within one
year). See also Boulder County Apartment Assn, 97 P.3d 332 (held, the states
interest in uniform, statewide criteria governing landlord-tenant relations does not
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down part of the towns inclusionary zoning ordinance, the remainder of which
remains in force today. What follows is a brief description of some recent innovative
exercises of the well-established land use authority to further newer housing goals in
Boulder and Pitkin County, Colorado and Teton County, Wyoming.
House size regulations
Across the country, despite a simultaneous decline in average household size,
average house physical size is dramatically increasing. In unincorporated Boulder
County, average single-family home size increased from 3,881 square feet in 1990 to
5,929 square feet in 2005. Average home size in the county in 2007 was even larger.
The county commissioners felt that this increase represented a threat to essential
community assets, primarily the countys rural character, but also its stock of
affordable housing. As a result, the county enacted a novel set of structure size
regulations to try to offset the impacts of this mansionization trend. The
regulations combine various land use planning tools, including transferable
development rights, site plan review guidelines, and a neighborhood-specific
planning approach.
Boulder County based its new regulations on a recently added Sustainability
Element in its Comprehensive Plan. This element defines sustainability as the use,
development and protection of all our resources in a manner that does not deplete
them while enabling the residents of Boulder County to meet their current needs and
maintain a fulfilling quality of life without compromising or foregoing the ability of
and opportunity for future residents to do the same. In short, the countys theory is
that Sustainable development would include smaller scale development.202 Among
other points, the Sustainability Element cites various statistics tying an increase in
home size to increases in the consumptive impact of larger homes: increased use of
energy, water, and other natural resources, both during the construction of the home
and during its ongoing use, as well as increases in carbon emissions.203
preempt a home-rule localitys interest in controlling over-occupancy of rental units
within its territorial limits).
202 Id. at 9.
203 The county considers global climate change to be a matter of paramount
concern. Boulder County Comprehensive Plan, Sustainability Element at 6,
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According to the Sustainability Element, [a] set of policies that encourage
smaller structure sizes, promotes the development of mitigation measures to offset
the consumptive impacts of larger homes, discourages the demolition of otherwise
habitable dwellings, and promotes the preservation of rural communities with their
typically smaller homes, will enable the county to meet many sustainability
objectives.204 Towards this end, it authorizes the expansion of the countys
longstanding transferable development rights (TDR) program. One objective for
the expansion is to provide incentives for the promotion and retention of a diverse
housing stock.2s TDR regulations should also be crafted with a focus on
preserving the existing stock of moderately sized, seasonal, and older residences that
reflect the diversity and rural character of both mountain and plains homes and
communities.206
This focus on preserving affordable housing makes sense, given the facts in
Boulder County. By last count, half of the countys renters were cost-burdened; 20%
were below the federal poverty level.207 28% of those with mortgages were cost-
burdened. 2008 AMI is $85,000. A minimum wage earner in Boulder County needs
2.7 full-time jobs to afford fair market rent for a 2-bedroom unit ($i,ooo/month).208
As of 2000, in Boulder County, 6-7% of families fell below the federal poverty line,
13% of families fell above the federal poverty line but below the self-sufficiency
available at
http://www.bouldercounty.org/lu/bccp/pdf/BCCPSustainabilityElement.pdf.
204 Id. at 4.
206 Id. at 8.
206 Id. at 8.
207 NLIHC, Local Area Low Income Housing Database (hereinafter LALIHD),
http://www.nlihc.org/doc/lalihdColorado.pdf. NLIHCs Out of Reach report looks at
the cost of rental housing throughout the country based on HUDs estimates of Fair
Market Rents. LALIHD provide contexts for these increases in terms of the number
of renter households affected, in relation to the situation of owner households. It
estimated that 46% of Boulder County renters are cost-burdened; the Census gives a
higher 2007 estimate of 54%. U.S. Census Bureau, 2007American Community
Survey, Selected Housing Characteristics: l-year Estimates.
208 Self-Sufficiency Standard, supra note 38, at 80.
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standard in Colorado, and the remaining 80-81% fell above the self-sufficiency
standard.29 (This matched the statewide breakout.* 210)
Boulder County ended up adopting green building regulations before its
structure size regulations, due in part to much greater public support for the former
than the latter. Although there is no direct link between the new green building
regulations and the new house size regulations the former is part of the building
code, the latter the land use code house size is also discouraged in the green
building rules.211 As a home gets larger, the regulations require that it meet a lower
Home Energy Service Rating System (HERS) value.212
Boulder Countys house size regulations divide the county into two
geographic areas, the mountains and the plains, with slightly different rules for each.
Going forward, 6,000 square feet is the maximum total residential floor area allowed
for homes in unincorporated Boulder County, unless the owners buy additional
blocks of square footage, referred to as transferable development credits (TDC),
which come in increments of 500 square feet. The number of TDCs required to build
beyond 6,000 square feet escalates the bigger one wishes to build. That is, to build a
6,500 square foot home, one need only purchase 1 TDC. But to build a 8,500 square
foot home, one must purchase 9 TDCs, not just five 500 square foot blocks.
Manufactured homes and a few other structure types are exempted from this cap.
Roughly speaking, total residential floor area is defined as all attached and
detached floor area on a parcel, including principal and accessory structures used or
customarily used for residential purposes, such as garages, studios, pool houses,
home offices, and workshops. The definition does not encompass covered porches.213
The old TDR program was intended to shift density from areas with
significant conservation values to areas where more intensive development was
29 Id. at 4.
210 Id.
211 The Sustainability Element states that the county may link any green building
program it adopts to regulations addressing structure size, [TDR], or other
sustainability measures, as deemed appropriate through further study of these
concerns and as developed through the public regulatory amendments process.
Supra note 203, at 10.
212 HERS is a national standard for residential energy efficiency.
2is See Boulder County Land Use Code, § 18-162.
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appropriate. While that program is still in existence, the aims of the expanded TDR
are slightly different: the new TDC program is intended to shift density from areas
with small thus, assumedly more affordable homes to areas where more intensive
development is appropriate.
Under the new program, owners of developed lots are now authorized to sell
their right to build more than 2,000 square feet to their property in 500 square foot
increments, in exchange for agreeing to a restrictive covenant that runs with the
property in perpetuity. The initial price per increment (per TDC) is $10,000. If an
owner restricts their home size to 2,000 square feet or less, they can sell two TDCs;
1,500 square feet, three; 1,000 square feet, four. Once development rights are
severed from a developed lot, they can be repurchased so that the lot can later be
developed, but only up to 2,000 square feet.
The theory is that a significant number of small property owners will be
willing to voluntarily deed restrict their homes given the immediate cash benefit,
thereby preserving homes that will not appreciate as much or at least as fast in value.
Ergo, more affordable housing across the county. Whether this rationale holds up
over time remains to be seen. Even small homes could appreciate out of reach of the
workforce in a real estate market like Boulder Countys.
Owners of vacant parcels willing to deed restrict their property can obtain
even more TDCs than those with existing small structures, assuming they meet the
criteria of the program (legal access, buildable lot, etc.). On the plains, those who
retain fee title but grant some kind of preservation interest (e.g., a conservation
easement) get the right to sell 10 TDCs; those who transfer fee title to the County or a
County-approved land preservation entity get 12 TDCs. On the mountains, the
values are scaled down to five and seven TDCs, for plains and mountains,
respectively. Once development rights are severed from a vacant lot, they cannot be
repurchased so that the lot can later be developed. If an owner of a parcel with
significant conservation values, vacant or developed, chooses to participate, they may
be eligible for additional TDCs as an incentive.
In November 2007, during the two-year-long study of whether these house
size regulations were a good idea, the commissioners hired a third-party consultant
to estimate the value of the TDCs and estimate whether sufficient market supply and
demand would result from the proposed program. Don Elliott presented Clarions
conclusions during a well-attended public hearing. He stated their conclusion that a
slight oversupply of TDCs would likely result from the program as then designed. As
it turned out, in May of 2008 the commissioners enacted slightly different size limits
60


than those Clarion used as assumptions. Thus, its unclear whether a small
oversupply is still likely or not.
Theres one more key element of these new regulations: site plan review. One
does not gain the right to build a home larger than 6,000 square feet simply by
purchasing the appropriate number of TDCs. Rather, the first step is to complete the
County Site Plan Review process. Part of this process is ensuring that all
development is compatible with the surrounding neighborhood. Structures smaller
than 2,500 square feet or 125% of the median residential floor area in the relevant
neighborhood are presumed to be compatible. This presumption can be rebutted by
the County or the applicant on a case-by-case basis in accordance with a list of
considerations in the regulations (e.g., visibility from public roads, the range of sizes
within the neighborhood).
Boulder Countys house size regulations are likely to survive legal challenge.
House size regulations like these are not common, perhaps because in many
communities they would be viewed as too onerous a restriction on private property
rights or too complicated to be administrable. Indeed, I know of no other
jurisdiction with a similarly designed program that combines TDRs, site plan review,
and house size thresholds in the way Boulder County does. A few other similar
counties do limit house size, either with thresholds like Boulder County or as firm
caps. Two counties in particular provide instructive examples of how such
regulations are likely to be evaluated, both by local citizens and courts.
Pitkin County has had house size regulations since the late 1980s, enacted in
part to discourage the use of jumbo residences as commercial lodges. Initially, the
regulation was a hard ceiling of 15,000 square feet. This came to be viewed as so big
as to make the regulation practically pointless. In 2000, the regulations were
amended such that the 15,000 square foot ceiling was kept, but to build a new single-
family home larger than 5,750 square feet, a developer must purchase TDRs from a
sending site in the rural county.214 Apparently, the upward trend in average home
214 John Aguilar, County Rips Page from Pitkins Playbook: Boulder County Looks
West for Guidance on Home Size Caps, Boulder Daily Camera, June 17, 2007,
available at http://www.dailycamera.com/news/2007/jun/17/county-rips-page-
from-pitkins-playbook/. Boulder and Pitkin County support each others efforts
where they can. For example, Boulder County filed an amicus brief in Droste v.
Pitkin County Bd. ofCommrs, 159 P.3d 601 (Colo. 2007) (held, county had authority
under the Local Government Land Use Control Enabling Act to adopt ordinances,
confirmed through public hearings, to impose a temporary moratorium on land-use
61


size in Pitkin County has not subsided, despite the fact that one TDR, which grants
the right to build an additional 2,500 square feet, costs about $300,000.215
It is the Wyoming Supreme Court that can claim credit for the most thorough
judicial examination of house size regulations to date, in the highly entertaining
Crow opinions. Since 1994, Teton County has limited the size of single-family
residences to 8,000 square feet of habitable space and 10,000 square feet of total
floor area.216 Habitable space means heated space used for living purposes under
the countys definitions. The county enacted the regulations after a long and
involved community planning process. In a creative effort to subvert these
regulations, a homeowner the Crows built a house that initially conformed to
these limits, receiving approval from the county, but then later remodeled the
interior of the house to increase the habitable floor space to about 11,000 square feet.
The record indicated that this two-phase construction was contemplated all along.217
The county commissioners sued the homeowners and their general contractor
to enforce the county regulations in Teton County Bd. of Commissioners v. Crow
(Crow 7).218 The homeowners counterclaimed that the regulations were
unconstitutional, and the Teton County District Court granted summary judgment
for the homeowners. The state supreme court reversed, holding first that the county
regulations did not violate substantive due process, facially or as applied. The court
found that the regulations were a rational and reasonable exercise of Teton Countys
police powers. In doing so, the court noted that: Teton County is an area of
extremely rare natural beauty, and Crow acknowledges that magnificence. In
addition to protecting the beauty of the valley, we note that Teton County might well
wish to address the preservation of its colorful and storied past, as well as the impact
that the construction, maintenance and servicing of large homes might have on the
application reviews that lasted approximately ten months, while county prepared its
master plan).
215 Id. (citing Pitkin Countys assistant Community Development Director).
216 Teton County Land Development Regulations, § 2450.
217 Id. at 725. [T]he evidentiary materials, when read in a light most favorable to
Teton County, are virtually uncontradicted in establishing that Crow built an 8,000
square foot house with cathedral ceilings over the garages and other areas for the
purpose of evading the limitations imposed by the Teton County LDRs. Id. at 731.
218 Teton County Bd. of Commrs v. Crow, 65 P.3d 720 (Wyo. 2003).
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microeconomics of Teton County. Crow fails in his efforts to cogently argue that the
regulations lack a reasonably conceivable rational basis.xiv
That the homeowners remodeling project did not change the exterior
appearance of the home the court found unpersuasive. Nor was the court willing to
consider the homeowners contentions that the county regulations violated equal
protection, constituted a taking without just compensation, violated the
homeowners "unenumerated rights to residential privacy, or violated the
homeowners right to associate with their family, where the contentions were not
supported by pertinent authority or cogent argument and they were not considered
or decided by the district court below. Lastly, the court explicitly agreed with the
countys conclusion that limitations on habitable space would have a salutary effect
on the need for, as well as the availability of, affordable housing, a conclusion
supported by a study done by Pitkin County [and] Aspen, Colorado.219
The Crow I opinion contains too many rich descriptions of the Crows
destined-for-failure claims to quote here, unfortunately. Suffice to say that after
three trips to the Wyoming Supreme Court, the Crows got to keep their illegally
added square footage but had to pay $714,000 in penalties for their ongoing violation
of the zoning code. All told, the three Crow opinions (especially the first) represent
the seminal state high court statement on the legality, purpose, and benefit of
McMansion regulations.1
Crow Ts affirmance of Teton Countys employment of its land use authority in
the service of affordable housing is important for Colorado localities because of the
reasoning that supported the second holding. The court held that Teton County had
statutory authority to enact the regulations under its power to promote the public
health, safety, morals, and general welfare by regulating the use, condition of use, or
occupancy of lands for residences.220 The court reasoned that the Wyoming statute
authorizing counties to regulate the location of buildings included authorization to
regulate the size or bulk of buildings, including square footage. Colorado has a
similar statute.221
219 Id. at 731.
220 Id. (citing Wyo. Stat. Ann. § 18-5-201).
221 CRS § 30-28-ii3(i)(a) (the board of county commissioners, by resolution, may
regulate, in any portions of such county that lie outside of cities and towns: (I) The
location, height, bulk, and size of buildings and other structures).
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Integration of affordable housing goals with growth management systems
through the use of deed restrictions.
Aspen and Pitkin County have artfully integrated affordable housing
promotion into their land use regulations for decades.'
There is little debate that there is a housing affordability problem in Pitkin
County and Aspen.222 By last count, 36% of the countys renters were cost-
burdened; 8% were below the federal poverty level.223 43% of those with mortgages
were cost-burdened. The 2008 AMI is $91,800; across the states 64 counties, the
average 2008 AMI is $6i,04i.224 A minimum wage earner in Pitkin County needs 3.7
full-time jobs to afford fair market rent for a 2-bedroom unit ($i,367/month).225
Despite this years real-estate based market turmoil, causing big drops in dollar
volume and number of transactions, the median single family home price in Pitkin
County was recently reported to be $3.8 million.226 Average home price was
reported to be $5.2 million, skewed high by sales of some homes for more than $30
million.227
Nearly 75% of local employers reported that their ability to recruit and retain
employees has gotten more difficult over the past three years because of a lack of
affordable housing.228 86% of these employers describe affordable housing as the
222 Clarion Associates, Inc. & James Nicholas, Pitkin County Affordable Housing
Regulation Support Study: 2004, available at
http://www.aspenpitkin.c0m/pdfs/depts/9/Pitkin%20AHStudy2004_23.pdf.
223 NLIHC, supra note 207.
224 2008 HUD Area Median Incomes, available at
https://www.efanniemae.com/sf/refmaterials/hudmedinc/. Curiously, NLIHC
reported a different statewide AMI for 2008, $68,752. NLIHC, Out of Reach 2007-
08, supra note 43.
225 Self-Sufficiency Standard, supra note 38, at 80.
226 Catherine Lutz, Pitkin County Real-Estate Sales Plunge, Aspen Daily News, July
25, 2008, available at http://www.aspendailynews.com/section/home/128353.
227 See, e.g., Saudi Prince Stuck With Record-$$$ Aspen Digs, Denver POST, Nov.
23, 2007 (no suitable offers for the princes $135 million palace).
228 Carolyn Sackariason, Aspen Worker Housing Need Critical, THE Valley
Journal, Aug. 11, 2008, available at http://www.valley-
64


most critical or one of the more serious problems facing the community. 229 The
policy gap statistics in Pitkin County match those in Boulder County and the state
as a whole: 6-7% of families below the federal poverty line and 13% of families above
it but still below the self-sufficiency standard in Colorado. 23
Pitkin Countys severe shortage of affordable housing is caused at least in part
by growth management in the main city, Aspen.2'!1 Aspen has had a growth
management quota system (GMQS) for many years to regulate the quality,
quantity, rate, and impacts of all development within the City.232 Among many
other goals, the GMQS is intended to further the development of mixed-use buildings
with housing opportunities for locals, the development of affordable housing in
locations supported by the Aspen Area Housing Plan Guidelines, and sustainability
of the local social and economic conditions.^ Aspens goal is to house 60% of its
workers inside the urban growth boundary. Presently, it houses 35-40%. The citys
inclusionary zoning program requires that 60% of development, including
redevelopment, be affordable or mitigated. 234 Some planners and housers think this
60% figure should be even higher,235 while some longtime local developers view 60%
joumal.com/article/20o8o8il/NEWS/224877757/ioo4&parentprofile=iooi&title=
Aspen%20worker%2ohousing%20need%20critical.
229 Id.
23 Id. at 4.
231 Cf. David Frey, Aspen, Colorado: Devil or Guardian Angel?, New WEST, Jan. 2,
2008,
http://www.newwest.net/snow_blog/article/devil_or_guardian_angel/C458/L41/
(Aspen catches heat for growth controls driving real estate prices higher, but houses
are no more reasonable over in growth-friendly Vail. The prices arent really driven
by limited land... The economic forces are much bigger: a tsunami of retiring baby
boomers with unprecedented wealth crashing in Aspen.)
232 Aspen Land Use Code, Chapter 26.470 (growth management quota system),
available at http://www.aspenpitkin.com/pdfs/depts/41/gmqs.pdf.
233 Id.
234 Phone interview with Cindy Christensen, APCHA Operations Manager, Oct. 21,
2008.
235 Email from Tom McCabe, APCHA Executive Director, infra note 260.
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as bordering on the unfeasible.236 Developers and landowners have challenged
Aspens growth management efforts over the years. 237
Aspen has had a commitment to preserving and/or providing an appropriate
amount of affordable housing since at least 1993.238 * The 2000 Aspen Area
Community Plan describes some of the accomplishments on the housing front by
growth management initiatives. Since 1993, the community has developed a
simplified review process for affordable housing developments and deducted such
projects from the annual allotments in the GMQS.239 Also, scoring priorities in the
GMQS were written to encourage onsite family owned affordable housing. And the
overall number of free market units allowed was reduced.
Other housing achievements included the development of a Resident
Occupancy program, revisions to the City Accessory Dwelling Unit and Cottage Infill
programs to promote registration and deed restriction of units, and revisions to the
housing qualifications program so that an employer building affordable units has the
right to designate the units for the use of his or her employees. 24 The Housing
Authority Affordable Housing Guidelines were revised to ensure priority is given to
permanent year-round residents.2**1 A mix of affordable and free market units in
some areas was ensured. Tenant buy-out and resident ownership at existing mobile
home parks was encouraged. Finally, surveys of employers and employees to
determine the true extent of affordable housing needs were completed.
236 Edward Stoner, Vail Eyes Aspens Housing Model, THE Aspen TIMES, Jan. 19,
2007, available at http://www.aspentimes.com/article/20070119/NEWS/70119009.
237 See, e.g., Quillen v. Aspen Planning and Zoning Commn, 697 P.2d 406 (Colo. Ct.
App. 1984) (reversing a decision by the Aspen Planning Commission to deny an
application which would effectively create three lots for development rather than
two, thereby circumventing the intent of the Citys Growth Management Policy Plan).
238 2000 City of Aspen Area Community Plan, at 3, available at
http://www.aspenpitkin.com/pdfs/depts/41/aacp.pdf.
239 Id.
24 id.
241 Among other responsibilities, APCHA annually recommends to the City and the
County guidelines for approval of, development of, and qualifications for, ownership
and rental of low, moderate and middle income housing within the City and the
County as required by existing agreements and land use regulations. These
guidelines are officially adopted by the city and county.
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The 2000 Aspen Area Plan states that We believe that the kind of vitality
brought to Aspen by its full time residents is being diluted by the inability of working
people to live in Aspen.242 Indeed, as of 1997, an estimated 65% of the Aspen
workforce commuted to work from outside of town.243 Thus, affordable housing for
employees is an integral part of Aspens land use code. The 2000 Plan also states as
one of Aspens goals: Create an affordable housing environment in which units are
integrated with the existing community.244 The code includes an accessory dwelling
unit (ADU) and carriage house program, the purpose of which is to promote the
long-standing community goal of socially, economically and environmentally
responsible development patterns which balance Aspen the resort and Aspen the
community.2^ To the extent Aspen desires detached ADUs and carriage houses,
which provide viable and livable housing opportunities to local working residents,
detached ADUs and carriage houses qualify existing vacant lots of record and
significant redevelopment of existing homes for an exemption from the growth
management quota system.246
In addition, detached ADUs and carriage houses deed restricted as for sale
units, according to the [APCHA] Guidelines, as amended and sold according to the
procedures established in the guidelines, provide for certain floor area incentives.24?
Detached ADUs or carriage house can only be conveyed separately from the primary
residence as a for sale affordable housing unit to a qualified purchaser pursuant to
the APCHA Guidelines.248 And ADUs and carriage houses are not considered units
of density with regard to zoning requirements.249 All properties containing an ADU
or a carriage house are deed restricted.2^0 The Aspen City Council can waive or
242 Id. at 4.
243 Id. at 1.
244 Id. at 2.
24s Aspen Land Use Code, § 26.520.010, available at
http://www.aspenpitkin.com/pdfs/depts/38/coaspent26-500.pdf.
246 Id.
w Id.
248 Id. at § 26.520.020.
249 Id.
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reduce impact fees for the portion of a proposed development that is affordable
housing.^1
Before continuing, a brief note on impact fees for affordable housing. Each
local government within its respective jurisdiction has the authority to plan for and
regulate the use of land ... on the basis of the impact thereof on the community or
surrounding areas. 252 Localities have long had authority to impose impact fees as a
condition of approval of development permits to encourage proper growth
management, including for affordable housing, separate from the authority to enact
impact fees in the MJHA enabling act.1" As of 2006, it seems only one county in the
state Garfield had an impact fee for affordable housing.1 As of 2006, only four
had fees-in-lieu of affordable housing. 2s3 This reluctance to impose impact fees
mostly continues today. Pitkin County does now have an impact fee dedicated to
employee housing, but its revenues are hardly sufficient for property acquisition and
development. 255 Of course, counties can also choose to waive impact fees (designed
to mitigate the impact of new development on other types of service provision) where
developers agree to build affordable units.
In Justice Hobbs dissent in Telluride, he pointed out various state statutes
authorizing the use by localities of dedication of land and facilities, money in lieu of
250 The ADU or carriage house must be registered with APCHA; any occupant of an
ADU or carriage house must be qualified as a local working resident according to the
current APCHA Guidelines; leases must be at least six months in duration and
recorded with APCHA.
251 Aspen Land Use Code, § 26.610.100.
2s2 Id. § 29-20-104(1).
233 See Dept of Local Affairs, Div. of Local Govt, 2004 Colorado Local Government
Land Use Survey,
http://www.d0la.state.c0.us/dlg/0sg/d0cs/c0unty%20survey%20fees%20sheet.pdf
(Phillips, Routt, San Juan, and San Miguel Counties).
234 Phone interview with Eric Bergman, Director, Colo. Dept of Local Affairs, Office
of Smart Growth, Oct. 29, 2008.
253 See Pitkin County Land Use Code, § 8-30, available at
http://www.aspenpitkin.com/pdfs/depts/71/luc_chapo8.pdf (Employee Housing
Impact Fee program).
68


such dedication, and impact fees to mitigate the impacts of new development.256 Its
land use powers and its status as a home-rule city provide it authority to adopt
mitigation exactions, such as property dedications or in-lieu payments, for affordable
housing within its jurisdiction.25?
According to Hobbs, Impact analysis techniques reflect two trends in
government policy toward land use regulation: (1) regulation should respond to
specific development proposals, and (2) development standards should be
predictable.258 Hobbs found the Telluride ordinance met both of these standards.
The ordinance applies only within Tellurides jurisdiction, takes into account its
geographical and demographic milieu, assigns a community value to having workers
live in the community in which they work, and addresses mitigation of pollution,
congestion, and transportation infrastructure impacts that arise from workers living
outside of the community and commuting thereto.259
Returning to Aspens program, the upshot is that in exchange for placing
restrictions on the deeds of some units to make them permanently affordable,
developers get relief from some regulations that allow them to build more than would
otherwise be permitted. Today, APCHA manages nearly 2,800 deed-restricted
employee housing units in accordance with eligibility and occupancy guidelines.260
This inclusionary zoning technique has been successful enough that every
community in the Roaring Fork Valley has a similar requirement.
But inevitably with so many deed-restricted units, some owners and
occupants seek to evade the restrictions. Some try to rent out units they agreed to
256 Telluride, 3 P.3d at 47 (Hobbs, J., dissenting) (citing Bainbridge, 929 P.2d 691,
698 (Colo. 1997)).
257 Id. at 48 (Hobbs, J., dissenting).
258 Id. at 47 (Hobbs, J., dissenting).
259 Id. at 47-48 (Hobbs, J., dissenting).
260 Email from Tom McCabe, Executive Director, Aspen/Pitkin County Housing
Authority, Nov. 4, 2008 (on file with author). These guidelines do not overrule the
county or citys Land Use Codes. They are annually reviewed and approved by the
APCHA Housing Board and Aspen City Council.
http://www.dola.state.co.us/cdh/researchers/documents/izo_summary.htm#Aspen
pitken. As an aside, a key factor in the success of APCHAs deed restriction program
is its strict enforcement of the caps on appreciation at resale.
69


occupy. Others use space intended for employee housing as recreation rooms. Still
others try to sell units for more profit than the appreciation cap they agreed to. Some
landlords of rental properties grossly overcharge tenants. Once caught, some try to
buy their way out of the restrictions at a deep discount from the appropriate cash-in-
lieu level.
These attempts to evade the restrictions on the deeds have spiked since the
Telluride decision was handed down in 2000. For example, APCHA sued an Aspen
anesthesiologist who refused to verify that her income and assets qualified her to
purchase (at a foreclosure sale261) a deed-restricted unit situated in the Ritz-Carlton
Club at the base of the Aspen Highlands Ski Area.262 * The district court granted
summary judgment for APCHA, ruling that the state statute at the center of Telluride
is anti-rent control law, not an anti-affordable housing law.263 On appeal, Dr. Tucker
argued that the deed restriction operated to control rents in both its rental and
ownership provisions; thus, Telluride invalidated the restrictions. But in August of
2008, the Colorado Court of Appeals affirmed the lower court, ordering Dr. Tucker
pay APCHAs attorney fees.26-* Although the courts order was not published,
assumedly it agreed with APCHAs argument that the statutory prohibition against
rent control does not apply to ownership restrictions.
261 Because Tucker purchased the condo at a foreclosure auction on the courthouse
steps, she did not have to submit to the usual qualifications process one would
ordinarily have to complete before buying an affordable housing unit. Curtis
Wackerle, Court Backs Housing Authority in Lawsuit, ASPEN DAILY News, Aug. 14,
2008, http://www.aspendailynews.com/section/home/128723 (citing Tom McCabe,
APCHA Director). McCabe said that to avoid such a conflict in the future, the
housing offices policy is now to purchase any affordable housing properties being
foreclosed on, then to offer them back to the community through the housing
lottery. Id.
262 The publicly recorded deed restrictions included a maximum rental rate for the
unit, a maximum resale price, and ownership limited to buyers subject to maximum
income and minimum work hours requirements as defined in the Aspen/Pitkin
County Employee Housing Guidelines. Apparently, APCHA believed Tucker owned
millions of dollars worth of property in Hawaii. Curtis Wackerle, Court Backs
Housing Authority in Lawsuit, Aspen Daily News, Aug. 14, 2008,
http://www.aspendailynews.com/section/home/128723.
263 Brief of APCHA on appeal, internal page 24 (on file with author).
26-* Aspen/Pitkin County Housing Authority v. Tucker, 2008 WL 3126199 (Colo. Ct.
App. 2008).
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So far, all of the attempts to invoke Telluride as a defense to deed-restriction
enforcement have been rejected by Colorado courts even those where the deed
restricts rental units, based on a theory that the government merely has an
enforceable property interest in the unit, rather than a right to enforce a rent control
regulation. Regardless, local officials in Aspen and Pitkin County wisely continue to
take the challenges seriously: this summer, APCHAs legal budget was tripled in
order to dedicate more time and resources to pursuing workforce housing
compliance issues, including more lawsuits when necessary and to keep up with the
$12,000 monthly legal bill.265
Parting thoughts on the use of Boulder and Pitkin County as examples
To be sure, Boulder and Pitkin County are not representative of the average
Colorado county, much less every county in the state. Compared to the state as a
whole, residents of these two regions are wealthier, more Democratic,266 and
strikingly racially homogenous.1 Both electorates seem more willing to tax and
regulate themselves for the public good than many other regions of Colorado.267 But
265 City of Aspen, Court Rules in APCHAs Favor on Housing Case, Aug. 13, 2008,
available at
http://www.aspenpitkin.com/apps/news/news_item_detail.cfm?NewsItemID=96i.
See also Curtis Wackerle, Housing Office Triples Legal Budget, Aspen Daily NEWS,
June 4, 2008, available at http://www.aspendailynews.com/section/home/housing-
office-tripl. APCHAs current legal budget is $145,000 per year. When Tom
McCabe, the current Executive Director, arrived three years ago, the budget was
$25,000 per year. Email from McCabe, supra note 260.
266 Boulder and Pitkin County are characterized electorally by a Democratic majority
of 20% and 15%, respectively, and also a larger proportion of unaffiliated voters
compared to the state as a whole. Of course, there are far fewer total registered
voters in Pitkin than Boulder. Colo. Sec. of State Elections Center, 2008 Voter
Registration Numbers, available at
http://www.elections.colorado.gov/WWW/default/2008%20Voter%20Registration
%2oNumbers/September_3o/party_affiliation_09.30.o8.pdf (last visited Sept. 30,
2008).
267 The Pitkin County electorate is willing to spend public funds on land conservation
and affordable housing, while Boulder County voters are, at least historically, focused
more on the former. For example, Boulder County residents have voted to tax
themselves to raise money for open space purchases multiple times since the 1990s,
but have never voted to do the same to raise funds for affordable housing directly
71


of all the states counties, Boulder and Pitkin have been trying to mediate the tug-of-
war between conservation-minded land use control and affordable housing pressures
for the longest time.268 Both counties are highly desirable places, long on jobs and
short on housing, whose citizenry has become aware perhaps a little too late that
achieving a balanced community requires balanced policies zeal for more
affordable housing must be tempered with careful consideration of the impacts on
character and vice versa.269 To be sure, both regions have met with only moderate
success. But they still set the bar in Colorado for the employment of land use
authority in pursuit of innovative solutions for affordable housing.
(although some tax revenue streams support housing-related services). By contrast,
APCHA is largely funded by a real estate transfer tax that predated TABORs
prohibition on such taxes.
268 Granted, the two counties examined in this thesis dont have the market cornered
on innovation. Summit County, for example, is another jurisdiction worth studying.
Its about to embark on a countywide push to find and rezone sites suitable for
affordable workforce housing, to include re-examination of parcels currently
planned and zoned for conservation of natural resources and open space. Bob
Berwyn, Zoning Changes Planned in Housing Quest, Summit Daily News, Oct. 19,
2008. But most other counties need more innovation. I didnt choose Eagle County,
for example, because it has managed growth and provided affordable housing with,
ahem, less vigor. For details on its housing shortage, see Josh Perdues study cited in
Melanie Wong, Residents Will Make Housing Sacrifices, Study Says, Vail Daily,
Sept. 18, 2008 (noting that Pitkin County, which includes Aspen, has several
hundred more deed- or rent-restricted properties, even though it has a population of
15,000 compared to Eagle Countys 50,000).
269 Id. at 8.
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CHAPTER 4: CONCLUSIONS
Given the shifting sands of local, state, and federal regulation, not to mention
the stark realities of the pro forma, its a wonder that many affordable units get built
at all. Especially in Colorados wealthiest regions like Boulder, Pitkin, and San
Miguel County (home of Telluride), the need appears to trend steadily upward while
the ability of local providers to meet that need flat-lines or falters.
Buzz about quality of life can create market pressure strong enough to drive
a wholesale change in the nature of a place. Rapidly rising housing prices are a
simple but powerful indicator of what amounts to a transition to exclusivity. More
than half of the 100,000 people who work in Boulder do not live in the city, and that
proportion is even worse for Aspen and Pitkin County. Although some may have
separate and sensible reasons for living far from their jobs, surely most would prefer
to minimize their commute. Beyond the gloomy statistics on foreclosures and long or
closed waiting lists for housing choice vouchers, many mourn the departure of a
diversity of views and tax brackets in the cities of Boulder and Aspen, replaced lately
by a more racially, socially, and economically homogenous class. This demographic
metamorphosis in the counties cores affect their outlying areas, as those who want to
live in Boulder or Aspen but cannot afford it are pushed out past the citys greenbelts,
if not out of the counties altogether.
Without abandoning its essential focus on the care and conservation of its
uniquely spectacular natural resources, the Telluride decision underlines how
Colorado law and policy can and must be reformed to more clearly address the
escalating affordable housing crisis. Currently, land use and affordable housing are
not linked strongly enough in the state statutes. The following steps should be taken
to fine tune law and policy in Colorado such that planning and management of land
use and affordable housing occur in a more synchronized way.
First, Colorado legislators and courts should clarify the state interest in land
use and affordable housing as follows. Both should be clearly designated as matters
of mixed state and local concern in the legislative intent sections of Title 29, which is
already home to most of the key state statutes on housing and land use. This
designation will allow local governments to enact and enforce laws on land use and
affordable housing even though state laws exist on the same subject, so long as the
local laws dont operationally conflict with the state laws. But it should also clarify
that the provision of adequate, decent, safe, and affordable housing in every region of
73


Colorado takes priority over conflicting or competing local agendas. The state
legislature could also consider adding affordable housing as an area or activity of
state interest under Title 24s authority.
Where an irreconcilable conflict exists between a local land use control effort
and the statewide interest in affordable housing, the Colorado Supreme Court can
help backstop the legislatures efforts here by interpreting housing as the dominant
state interest, when presented with appropriate facts. The same goes for conflicts
concerning the interplay of land use and housing that arise between otherwise co-
equal state statutes. In addition, Colorado courts can help by interpreting the
familiar concept referenced by Chief Justice Mullarkey in her Telluride dissent that
development should pay its own way to include affordable housing linkage
requirements.
Second, the Colorado General Assembly should amend the state planning acts
referred to by Justice Hobbs in his Telluride dissent to require cities and counties to
comprehensively plan for the provision of enough decent, safe, and affordable
housing in their region. Localities should be allowed to define region as they wish,
with county as the smallest allowable (and the recommended) size. Localities can
then choose how best to promote affordable housing in their land use regulations in a
manner consistent with this regional plan.2?0 Boulder and Pitkin County provide
progressive examples of how to use county authority to regulate land use to further
affordable housing goals.
This additional planning mandate should not increase localities costs
overmuch. Where it does perhaps in areas with minimal background in planning
for housing the state should provide funds as necessary through the Department of
Local Affairs. To this end, affordable housing ought to be recognized at the state
level as a critical planning issue, allowing for Colorado heritage planning grants to
be awarded by the Office of Smart Growth.2?1
Third, the state legislature should consider abolishing municipal housing
authorities to shift primary responsibility for housing to counties qua regions.
2? Can there be any validity to land use regulations not based upon comprehensive
planning? Surely not. Julian C. Juergensmeyer & Thomas E. Roberts, Land Use
Planning and Development Regulation Law § 1.3 (2d ed. 2007). See Conder, 927
P.2d 1339 and CRS § 30-28-io6(3)(a).
271 See CRS § 24-32-3203(3X0X11).
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Counties are the best surrogate for the region, geographically, politically,
demographically, and institutionally. Counties have a significant existing
governmental infrastructure that, if authorized and funded, could effectively plan
and manage regional housing. Indeed, in a state with as few urban centers and urban
problems as Colorado, arguably everything municipal housing authorities do could
be done by a county authority at significant administrative cost savings, increased
efficiency, and without impacting customer service. And allocating more authority to
plan and manage affordable housing at the county level would also unravel the
preemption entanglements seen in Telluride.
If abolishing municipal housing authorities is viewed as unworkable, state law
should be amended to require cities and counties to work together to manage
housing. Joint planning and management could occur under the auspices of a multi-
jurisdictional housing authority. Pitkin and Summit County provide good examples
of how to use MJHAs to plan for, manage, and raise tax revenues to further
affordable housing goals on a regional basis. The General Assembly should also add
a legislative declaration to the MJHA Act.
If creating a MJHA is also not realistic, localities should establish
intergovernmental agreements on one or more narrowly defined elements of housing
provision, such as needs assessments, federal funds applications, or voucher
management. Boulder and Broomfield Countys Regional HOME Consortium
provides a great example of coordinating assessment of regional housing needs and
applying for federal funds as a region. And Boulder Countys Super IGA hints at a
better future model wherein joint housing planning occurs in tandem with joint land
use planning.
Taking any one of these steps will not solve the affordable housing problem in
Colorado overnight. It will do little to address homelessness, the lack of a reasonable
housing wage for too many of our neighbors, and the foreclosure crisis currently
stalking across the landscape wreaking extra havoc on low-income households. But
over the long term, these actions should begin to increase housing choice and
decrease the number of cost-burdened families in the state.
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ENDNOTES
' See generally CRS § 30-28-115(2). A state-licensed group home for eight developmental^
disabled persons is a residential use of property for zoning purposes... Id. § 30-28-115(2X3).
Accord id. § 30-28-115(2X11.5) (eight mentally disabled persons). All county zoning
ordinances shall provide for the location of group homes for the aged. Id. § 30-28-
H5(2)(b)(II). Counties retain the authority to regulate such homes appropriately through
local zoning ordinances or resolutions, except where such regulation is tantamount to the
prohibition of such homes from any residential district. CRS § 30-28-115(2X0). This
authority is not to be abused by requiring group homes to appear substantially inconsistent
with the character of the surrounding neighborhood. Id. (i.e., with respect to height,
setbacks, area, lot coverage, external signage, architectural design). The authority to regulate
land use does allow for counties to attach specific location requirements to the approval of the
group home, so long as reasonably related to the requirements of a particular home. These
specific location requirements might include the availability of services and facilities such as
convenience stores, commercial services, transportation, and public recreation facilities. Id.
CRS § 24-32-702(1). Many housing facilities occupied by low- and moderate-income
families use excessive and unnecessary amounts of energy for heating and other home uses
due to inadequate insulation or to the absence of other design features or materials which
reduce total home energy requirements. Id. § 29-4-702(2) (legislative declaration in CHFA
act). For an example outside Title 29 of the intersection of energy conservation and
affordable housing in the state statutes, see CRS § 30-28-2ii(e) (declaring that Colorado has a
statewide interest in requiring an effective energy efficient building code because controlling
energy costs for residents and businesses furthers a statewide interest in a strong economy
and reducing the cost of housing). Where a county does not adopt a building code, the state
Division of Housing regulates building standards for certain multi-family units. See, e.g.,
CRS § 24-32-3301.
m Id. § 30-28-ii5(3)(b)(I). See Colo. Mfred. Hous. Assn v. Pueblo County Bd. of Commrs,
946 F.Supp. 1539 (D. Colo. 1996) (holding that Pueblo Countys ordinance requiring
manufactured housing to comply with the Uniform Building Code was federally preempted)
and Colo. Mfred. Hous. Assn v. Pueblo County, 857 P.2d 507 (Colo. Ct. App. 1993)
(allegations by builder and dealer of manufactured housing that local zoning resolution
caused them to lose sales on houses which met standards developed by HUD sufficiently
alleged injury in legally protected interest, and, thus, builder and dealer had standing to
challenge resolution as violation of preemption provisions of Manufactured Housing Act
under supremacy clause). See also Molly A. Sellman, Equal Treatment of Housing: A
Proposed Model State Code for Manufactured Housing, 20 Urb. Law. 73, 89 (1988)
(reviewing 16 state codes on manufactured housing and finding Colorados public welfare to
be promoted provision to be the most performance-oriented and most favorable to local
government policymaking) (citing CRS §§ 30-28-115 and 31-23-303 (1985)).
As with group homes, the prohibition in CRS § 30-28-ii5(3)(b)(I) does not preclude a county
from enacting zoning, developmental, use, aesthetic, or historical standards, including, but
not limited to, requirements relating to permanent foundations, minimum floor space, unit
size or sectional requirements, and improvement location, side yard, and setback standards to
76


the extent that such standards or requirements are applicable to existing or new housing
within the specific use district of the county. Id. § 30-28-115(3)0x11). Nor are counties
precluded from enacting building code provisions for unique public safety requirements such
as snow load roof, wind shear, and energy conservation factors. Id. § 30-28-115(3)0x111).
iv CRS § 24-32-1201 (declaring that the state clearinghouse housed in the Department of Local
Affairs shall be primarily a state central information center for the receipt and dissemination
of federal assistance information, not be a policy-making or planning agency). See also § 24-
32-1203(2)0) (In the absence of any provision of law authorizing centralized state-wide
comprehensive planning, including land use or growth policies, any reference in circular
number A-95 (from the U.S. Office of Management and Budget, as amended) to state
comprehensive plans or planning, state priorities or objectives, or the equivalent shall be
construed by the state clearinghouse and affected state agencies to refer to the aggregate of
local and regional plans and policies established pursuant to statute and the policies,
purposes, and objectives expressed in the laws of the state.); Town ofTelluride v. Lot Thirty-
Four Venture, L.L.C., 3 P.3d 30,43 (Colo. 2000) (Mullarkey, J., dissenting) (The General
Assemblys planning, zoning, and development statutes contain a pervasive legislative policy
choice in favor of local land use decisionmaking.); and Town ofTelluride v. San Miguel
Valley Corp., 185 P.3d 161,168 (Colo. 2008) (recognizing that land use policy traditionally
has been a local government function in the state).
v From 1970 until about 1999, Colorado had a state advisory board called the Land Use
Commission housed in the Governors office. Among other duties, it reviewed local
government orders adopting guidelines for the administration of matters of state interest,
providing recommended modifications if necessary to the local government. See, e.g., the
dispute over whether annexation and rezoning amounted to development requiring a Land
Use Commission hearing in City of Louisville v. District Court In and For Boulder County,
543 P.2d 67 (Colo. 1975) (Louisville wanted to annex, rezone, and develop 700 acres of
unincorporated property). See also Joseph B. Dischinger, Local Government Regulation
Using 1041 Powers, 34 Colo. Law. 79 (2005) and Nicholas Panos, A History of the Colorado
Land Use Commissions Intervention, 24 Colo. Law. 303 (1995). In 1999, the Land Use
Commission was defunded; six years later, its statutory authority was repealed. Colo. Gen.
Assembly, H.B. 05-1063, available at
http://www.leg.state.c0.us/CLICS2005A/csl.nsf/fsbillc0nt3/0BAE47DE80D42E6B87256F5
000708733?0pen&file=1063_enr.pdf. See also Colo. Leg. Council, Fiscal Note on H.B. 05-
1063, Jan. 12, 2005, available at
http://www.leg.state.c0.us/clics2005a/csl.nsf/fsbillc0nt3/0BAE47DE80D42E6B87256F500
07o8733?Open&file=HBio63_oo.pdf. Most observers agree that it never quite achieved its
original purpose. See supra, note v. Colorado encountered difficulty in the implementation
of the state role in its growth management program.... The failure of the system was largely
due to the fact that while the growth management system enjoyed bipartisan support at its
inception, by the 1975 Gubernatorial election, growth management became a partisan issue.
The Democratic Governor, Richard Lamm, attempted to protect the system, but conservative
Republicans, who controlled the Senate and House, were able to cut the State Land Use
Commissions budget, and the Commission had to reduce its role. Joseph Van Rooy, The
Development of Regional Impact in Floridas Growth Management Scheme: The Changing
Role in Regionalism, 19 J. Land Use & Envtl. L. 255 (2004) (internal citations omitted). See
77


also Erin Johnson & John Himmelreich, Geologic Hazards Avoidance or Mitigation: A
Comprehensive Guide to State Statutes, Land Use Issues, and Professional Practice in
Colorado (1998) (citing Kirk Wickersham, Jr., Land Use Management in Colorado: Past,
Present, and Future, 6 Colo. Law. 1779 (1977)).
" For the annexation statutes, see CRS §§ 31-12-101-707. For case law interpreting them, see,
e.g., City of Greenwood Village v. Petitioners for Proposed City of Centennial, 3 P.3d 427
(Colo. 2000) (Hobbs, J., for the majority) (concerning a rapidly urbanizing unincorporated
area of Arapahoe County) (holding that the proposed City of Centennial could proceed with
its incorporation election before the City of Greenwood Village could hold its annexation
elections) (describing 1999 amendment to Colorado annexation statute as reasonably related
to a legitimate governmental purpose: uniform statewide management of urban growth and
municipal boundaries, namely, allowing citizens in large unincorporated areas to choose
their community whether to create a new municipal community or become part of an
existing municipality) (citizens in an area of sufficient density and population capable of
becoming a viable city should have an opportunity and specified priority to vote for or against
incorporation, before annexation can preclude that choice). See also Douglas County Bd. of
Commrs v. Gartrell Inv. Co., LLC, 33 P.3d 1244 (Colo. Ct. App. 2001) (pursuant to its land
use regulations promulgated under the Areas and Activities of State Interest Act, Douglas
County tried to require a developer to obtain a new communities permit from the county
before proceeding to annex its property to Aurora so that it could build 1,500 houses on 1,000
acres of land designated non-urban in the Douglas County Master Plan; held, county lacked
authority to do so because its regulations concerning annexation exceeded the scope of the
state act).
For Colorado cases discussing the extent to which water and service can be used as a growth
management tool, see City of Colorado Springs v. Pueblo County Bd. of Commrs, 147 P.3d 1
(Colo. 2006); Metro. Suburban Water Users Assn v. Colo. River Water Conservation Dist.,
365 P.2d 273 (Colo. 1961) (finding that waters of tributaries of the Eagle River were the
property of the public, and not any segment thereof, and were not dedicated to any
geographic portion of the state; thus, several Front Range cities could exercise their rights to
transfer water between basins) and Arapahoe County Bd. of Commrs v. Denver Bd. of Water
Commrs, 718 P.2d 235 (Colo. 1986) (counties cannot require a city to extend water services,
regardless whether lack of water limited uses to which unincorporated land could be put and
interfered with uses of land that counties might determine to be appropriate); City of
Colorado Springs v. Board of County Com'rs of County of Eagle, 895 P.2d 1105 (Colo. Ct.
App. 1994) (countys denial of special use permit to develop major extension of a water
collection system in Eagle County to gain access to water in which the cities owned rights
upheld, based on the cities failure to satisfy county regulatory criteria concerning wetlands
protection and nuisance abatement); Pagosa Area Water and Sanitation Dist. v. Trout
Unlimited, 170 P.3d 307 (Colo. 2007) (held, water court failed to make findings of fact to
enable the Supreme Courts review of its decree granting the water district conditional water
rights for a 100-year planning period) (The conditional appropriation must not be based on a
conjectural population projection that becomes a self-fulfilling prophecy of growth. Id. at
315-)
78


If water is used as a growth control lever, the tension between growth control and affordable
housing will be exacerbated. Lawyers and planners who must work with Californias new
water supply planning and certification requirement... justifiably complain that the water
mandates are inconsistent with other statutes mandating affordable housing components in
city plans. A. Dan Tarlock & Sarah B. Van de Wetering, Western Growth and Sustainable
Water Use: If There Are No Natural Limits, Should We Worry About Water Supplies?, 27
Pub. Land & Resources L. Rev. 33, 55 (2006).
* Colorado also has a version of the adequate public facilities method of managing growth
begun in Ramapo, NY in the 1960s. CRS § 31-12-105(6) (plans required concerning possible
future annexation of land within three miles of municipality). See also Three-Mile Plan, Colo.
Dept of Local Affairs, Office of Smart Growth, available at
http://www.dola.state.co.us/dlg/osg/docs/3mileplan.pdf; CRS §§ 31-12-101??? (Municipal
Annexation Act of 1965); 31-12-108.5 (describing contents of the required Annexation Impact
Report?). See P-W Investments, Inc. v. City of Westminster, 655 P.2d 1365 (Colo. 1982)
(dispute over city ordinance, enacted in response to rapid housing growth in the 1970s,
imposing new fees to be paid prior to the issuance of building permits related to water and
sewer services) (finding that city made no representation that water and sewer services would
be available indefinitely and holding in part that water and sewer tap permits issued by
Westminster to a developers predecessor did not create a vested right in the developer to
building permits under an allocation system established later which restricted issuance of
building permits due to limited water and sewer capacity).
See Conder, 927 P.2d at 1352 (enforceability of comprehensive plans) (joining Justice
Kourlis dissent); Bainbridge, 929 P.2d 691 (holding that counties cannot exact a school
impact fee at the time of issuance of the building permit or the certificate of occupancy in
addition to that provided for by statute at the time of subdivision approval); Save Park
County, 990 P.2d 35 (dissenting vigorously with the majority view that a county does not
have to re-refer a development plan to experts for their review, even though more than 10
years have passed between submission of the preliminary and final plans); Telluride, 3 P.3d
at 47-48 (Hobbs, J., dissenting) (as described in text accompanying this note); Proposed City
of Centennial, P.3d 427 (concerning a rapidly urbanizing unincorporated area of Arapahoe
County; holding that the proposed City of Centennial could proceed with its incorporation
election before the City of Greenwood Village could hold its annexation elections); Krupp, 19
P.3d 687 (upholding higher waterwater treatment plant investment fees for triplex developers
in Breckenridge); Droste, 159 P.3d 601 (holding that Pitkin County had authority under the
Local Government Land Use Control Enabling Act to adopt ordinances, confirmed through
public hearings, to impose a temporary moratorium on land-use application reviews that
lasted approximately ten months, while the county prepared its master plan); Pagosa Area
Water, 170 P.3d 307, 315 (rejecting a decreed water right based on a xoo-year planning
period, explaining that a government agencys conditional appropriation of water must be
consistent with the agencys reasonably anticipated water requirements based on
substantiated projections of future growth within its service area: The conditional
appropriation must not be based on a conjectural population projection that becomes a self-
fulfilling prophecy of growth.).
79


x See, e.g., In re Title, Ballot Title and Submission Clause, and Summary for 1999-00 #256,
12 P.3d 246, 250 (Colo. 2000) (rejecting a claim that Amendment 24s very broad subject
concerning the management of development was too broad) (noting that just because a
proposal may have different effects or reflect policy choices that are not inevitably
interconnected does not mean that such a proposal necessarily violates the single-subject
requirement). As an aside, even though the Citizen Management of Growth initiative
survived its legal challenges, it didnt matter in the end: Amendment 24 failed 70-30 at the
ballot box. At least in part, it appears affordable housing advocates like Habitat for Humanity
who vociferously opposed the initiative had a great deal to do with its lack of support at the
polls:
These proposals, which essentially would have mandated Portland-esque growth-
boundary models, were wildly popular until housing developers and low-income
housing advocates combined forces to oppose them. In Colorado, Habitat for
Humanity took a public stand on an initiative for the first time in their history -
expressing concerns that statewide planning would shrink the pool of affordable
housing.
Nicole Stelle Garnett, Unsubsidizing Suburbia, 90 Minn. L. Rev. 459, 495 (2005). For a
description of the pros and cons of Amendment 24, see Colo. Gen. Assembly, Legislative
Council, Rsch. Publication No. 475-0, An Analysis of the 2000 Statewide Ballot Proposals,
available at
http://www.state.co.us/gov_dir/leg_dir/lcsstaff/2000/ballot/Bluebook/HTML/2000bluebo
ok.htm.
See also Matter of Title, Ballot Title and Submission Clause and Summary for No. 25A, 954
P.2d 1063 (Colo. 1998) (proposed amendment to the state constitution that would have
limited the number of housing units constructed each year based on the projected national
growth rate in households for that year, with a modest exception for affordable housing)
(rejecting allegations that title and summary of were too detailed to correctly and fairly
express the true intent and meaning of the proposal to its intended audience); and Dellinger
v. Teller County Bd. of Commrs, 20 P.3d 1234,1237 (Colo. Ct. App. 2000) (noting the
absence of any state statute specifically authorizing initiatives at the county level concerning
housing growth limits).
Id. § 32-7-102 (legislative declaration regarding regional service authorities). CRS § 32-7-
101 authorizes at least two counties (upon approval of the electors) to form a regional service
authority to perform any of the nearly twenty service functions (e.g., urban drainage and
flood control, land and soil preservation, public surface transportation, etc.). Colo. Dept of
Local Affairs, Office of Smart Growth, Land Use Planning in Colorado, available at
http://www.dola.state.co.us/dlg/osg/docs/Land%2oUse%2oPlanning%20In%2oColorado.p
df (citing CRS § 29-1-203). Subject to local authorization as provided in CRS § 32-7-112, local
governing bodies, by resolution, or the people, by petition, or the service authority
organizational commission, if such services are not designated by the resolution or petition
for formation prior to formation, or the board after formation, may, by resolution, initiate one
or more of the following services or combinations thereof [including] housing. CRS § 32-7-
m(i)(l). Unless authorized pursuant to section 32-7-112(2), the services provided by a
service authority shall be provided on a concurrent basis with local jurisdictions. This shall
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not prohibit a board from contracting with local governments or state government for the
provision, construction, or operation of any service by the service authority or state or local
government, nor does it prohibit any local government from voluntarily vesting exclusive
jurisdiction for the provision of a given service with the service authority. CRS § 32-7-111(2).
CRS § 31-23-207 provides:
In the preparation of such plan, the commission shall make careful and
comprehensive surveys and studies of present conditions and future growth of
the municipality, with due regard to its relation to neighboring territory. The
plan shall be made with the general purpose of guiding and accomplishing a
coordinated, adjusted, and harmonious development of the municipality and
its environs which will, in accordance with present and future needs, best
promote health, safety, order, convenience, prosperity, and general welfare, as
well as efficiency and economy in the process of development, including,
among other things, adequate provision for traffic, the promotion of safety
from fire, flood waters, and other dangers, adequate provision for light and
air, distribution of population, affordable housing, the promotion of good
civic design and arrangement, efficient expenditure of public funds, the
promotion of energy conservation, and the adequate provision of public
utilities and other public requirements.
Id. (emphasis added).
Id. § 29-1-204.5 provides as follows:
Any combination of home rule or statutory cities, towns, counties, and cities
and counties of this state may, by contract with each other, establish a
separate governmental entity to be known as a multijurisdictional housing
authority, referred to in this section as an authority. Such an authority may
be used by such contracting member governments to effect the planning,
financing, acquisition, construction, reconstruction or repair, maintenance,
management, and operation of housing projects or programs pursuant to a
multijurisdictional plan: (a) To provide dwelling accommodations at rental
prices or purchase prices within the means of families of low or moderate
income; and (b) To provide affordable housing projects or programs for
employees of employers located within the jurisdiction of the authority.
xiv Id. at 729 (citing Crider v. Boulder County Bd. ofCommrs, 246 F.3d 1285,1289-90 (10th
Cir. 2001)). See also id. at 730-731:
We will begin our discussion with the very basics. Teton County chose to
address the broad range of concerns and problems it faced with burgeoning
development, in an area of unique natural beauty and the availability of only a
very limited amount of privately-owned land, by adopting a comprehensive
planning and zoning ordinance. All parties to this litigation agree that Teton
County is unique in many ways and certainly is one of only a handful of areas
on earth with such an abundance of natural amenities. Teton County chose as
one tool in its arsenal of weapons to prevent the destruction of those natural
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amenities a limitation on the square footage of new homes to 8,000 square
feet of habitable space. It might have opted for 5,000 square feet or it might
have chosen 15,000 square feet, but it picked 8,000. A limitation of some sort
is, without need of further justification, rational. Indeed, the property in
question is also burdened with private limitations that prohibited the building
of residences that were either too small or too big. Such private limitations,
which usually take the form of covenants that run with the land, serve rational
and legitimate purposes. In any event, we must give recognition to the fact
that a limiting number of some sort is by its very nature reasonable in virtually
any context, and, as will be shown from Teton Countys planning process,
painstaking thought went into selecting the number. Clearly, the number
chosen provides for what can only be described as a house of commodious
proportions, though it clearly does limit all persons leave to build a single
family dwelling of such proportions that it can accommodate multiple
generations of families or, for that matter, groups of unrelated individuals
which might exceed the capacity of an 8,000 square foot house. Teton County
intended that its regulations have such an effect, and we are convinced that a
legitimate and rational purpose motivated the regulations. Among these
rational and legitimate purposes are: (1) preserving community character; (2)
preserving rural and western character; (3) promoting land use compatibility;
(4) promoting housing affordability; and (5) mitigating against an unworkable
increase in the number of low wage employees needed to provide services to,
and maintain, large homes thereby lessening the demand for affordable
housing in an area where affordable housing was scarce and getting scarcer.
xv The reader is urged to read the whole delicious opinion, but particularly id. at 733-735. A
few morsels:
Crows argument goes like this: Some permanent residents stereotyped newcomers
to Teton County as wealthy/affluent non-residents who were causing land values to
skyrocket. Furthermore, Crow characterizes Teton Countys efforts to channel and
control development as discrimination and exhibiting an animus for wealthy non-
residents. Crow also contends that the [regulations] are founded by a belief in the
minds of permanent residents that the very affluent or those with extensive
families have no part in Teton Countys community fabric. Crow also contends that
others had violated the [regulations] and either were not prosecuted or were given a
slap on the hand and, therefore, nothing should be done to him or, at most, he should
be slapped on the hand. Crow also contends that the existing structure was
inadequate to house his extensive family, that there were heating problems, and
ominous safety problems for the grandchildren, and that the only apparent means to
remedy those problems was to expand the habitable space in the home by 3,000
square feet.
Crow at 733.
After presenting this version of the case, Crow concludes that it is a single paragraph
in the district courts judgment that brings him to this Court, and that is the district
courts finding that: [the house size regulation] promotes the legitimate public
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objectives of protecting, promoting and preserving (1) community character, (2) rural
character, (3) rural western character, (4) land use and character type compatibility,
(5) social and economic diversity through housing affordability, and (6) social and
economic diversity by lessening the demands on affordable housing. Crow
contends that Teton County may not seek to promote or preserve community
character, rural western character, land use and character type compatibility, social
and economic diversity through housing affordability, and social and economic
diversity by lessening the demand on affordable housing, as these things have
nothing to do with the health, safety, morals and general welfare of the people of
Teton County.
Id. at 734.
Crow characterizes the [regulations] adopted by Teton County as being a social
agenda, a permissive platform, invasive of peoples natural and civil rights,
spiritual, aesthetic, related only to beauty, health, spaciousness, cleanliness,
and a well balanced and carefully patrolled environment. Such things, Crow argues,
are only within the power of the State and have not been delegated to Teton County.
Id. at 735 (internal citation omitted). Dismissing the case cited by the Crows in support of
their arguments as having no application whatsoever to the circumstances of this case, the
Crow I court disagreed: We hold that the [regulations] at issue do not exceed the authority
delegated to Teton County to ensure the general welfare of the people of that county. Id.
Finally, Crow contends that, even if all those standards like community character, rural
character, rural western character, etc. are legitimate state interests which Teton County
has the authority to adopt, they are not promoted by [the regulations] and, therefore, this
Court should declare them to be invalid. Id. Crow cited Daubert in support, obfuscating.
It is not clear that the Daubert case has any relevance at all in these circumstances.
The issue appears to be more in the nature of whether or not Teton County may
justifiably rely on the experiences of a county like Pitkin County in deciding or further
evaluating critical issues about development. It seems almost unquestionable that
relying upon the experiences of a sister resort city would be Solomonic on the part of
the people of Teton County rather than unreasonable, as suggested by Crow.
Id.
xvi After the first remand, the Teton County District Court imposed fines on the Crows, but did
not order that they abate their violation (i.e., remove several thousand square feet of
remodeling inside their home). Both parties appealed, and the Supreme Court again reversed
and remanded to the lower court. The Crow II court held that the trial court was required to
make specific findings balancing the equities regarding the countys abatement action, and
the homeowners were subject to a fine of not more than $750.00 for each day the violation of
the county regulations continued. Teton County Bd. ofCommrs v. Crow, 131 P.3d 988 (Wyo.
2006).
On the second remand, the Teton County District Court imposed a total fine of $714,000 on
the homeowners, but declined to order abatement. Teton County appealed, but this time the
Wyoming Supreme Court affirmed. The Crow III declined to find the trial courts disposition
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to be an abuse of discretion, noting that the footprint of the house did not exceed the
regulations or relevant subdivision covenants, there were no complaints by the Crows
neighbors, and the Crows could achieve the same result by converting basement space to
living space or by building a guest house on a neighboring lot. Teton County Bd. ofCommrs
v. Crow, 170 P.3d 117 (Wyo. 2007).
On appeal, the Crows argued that they were influenced to violate the regulations by others
around them being allowed to do so. The court rejected the notion that this influence was an
equity to be balanced in their favor by the district court in determining whether to order
abatement of the excessive square footage. Rather, the court declared, such influence was
evidence of duplicity and dishonesty on the Crows part. Similarly, the Crows argument that
the regulations confused them failed to persuade the Crow III court, which noted that the
Crows request for a variance for the additional square footage was denied, and rather than
clarifying the regulations by further administrative means, the Crows simply flouted the
denial.
See Pitkin County Land Use Code, Chap. 6: Growth Management Quota System and
Transferable Development Rights, available at
http://www.aspenpitkin.com/pdfs/depts/71/luc_chap6_amended.pdf. As in Boulder
County, developers and landowners have long tried to find ways around the Pitkin County
growth management rules. For key cases on growth management and land use planning in
Pitkin County, see Droste v. Pitkin County Bd. of Commrs, 85 P.3d 585 (Colo. Ct. App. 2003)
(denial of plan to construct 15,000 square foot home on property used as a migration corridor
between winter and summer elk ranges upheld) (Interpreting AASIA and the Enabling Act as
separate and independent grants of authority harmonizes both statutes and avoids an
inconsistent or absurd result. Droste, 85 P.3d at 589-590.); Droste v. Pitkin County Bd. of
Commrs, 141 P.3d 852 (Colo. Ct. App. 2005) (parenthetical); Droste v. Pitkin County Bd. of
Commrs, 159 P.3d 601 (Colo. 2007) (holding that county had the authority under the Local
Government Land Use Control Enabling Act to adopt ordinances, confirmed through public
hearings, to impose a temporary moratorium on land-use application reviews that lasted
approximately ten months while the county prepared its master plan before the deadline
imposed by the County Planning and Building Codes); Wilkinson v. Pitkin County Bd. of
Commrs, 872 P.2d 1269 (Colo. Ct. App. 1993) (upholding countys denial of applications to
develop single-family homes on 29 mining claims owned on 184 acres of unincorporated land
just outside Aspen) (describing countys growth management system as an elaborate system
for phasing development that achieved objectives enumerated in the Colorado land use
statutes by regulating population density, phasing development of services and facilities, and
regulating land use based upon impact on community); Pennobscot, Inc. v. Pitkin County Bd.
ofCommrs, 642 P.2d 915 (Colo. 1982) (overturning county subdivision regulations).
xviii CRS § 29-20-104.5. For lengthy interpretation of the impact fee statute, see Justice
Hobbs majority opinions in Douglas County Bd. ofCommrs v. Bainbridge, Inc., 929 P.2d
691 (Colo. 1996) (case consolidated with Boulder County Bd. ofCommrs v. Homebuilders
Assn of Metro. Denver, No. 95SC479) (held, counties have no implied power to exact school
impact fees at the time of issuance of building permits or certificates of occupancy in addition
to the impact fees allowed by statute at the time of subdivision approval) and Krupp u.
Breckenridge Sanitation Dist., 19 P.3d 687 (Colo. 2001) (held, sanitation district validly
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authorized its district manager to determine a rate of peak wastewater discharge for the
triplexes, affectingthe amount of the districts plant investment fee and, in turn, fees imposed
on developers).
See Colo. Dept of Local Affairs, Div. of Local Govt, 2004 Colorado Local Government
Land Use Survey,
http://www.d0la.state.c0.us/dlg/0sg/d0cs/c0unty%20survey%20fees%20sheet.pdf (Garfield
County). The DOLA/DLG survey defined an element as a section or chapter of a
comprehensive/master plan that may address current conditions, goals and objectives,
inventories, etc.; a policy as explicit guidance regarding a particular topical area that may be
contained in a comprehensive/master plan, resolution or elsewhere; and a regulation as
specific codified regulatory guidance (ordinance, resolution) that is usually contained within
a land use code, zoning resolution, etc. See Dept of Local Affairs, Div. of Local Govt, 2004
Colorado Local Government Land Use Survey,
http://www.d0la.state.c0.us/dlg/0sg/d0cs/c0unty%20survey%20form.pdf.
The nation is approximately 80% white. U.S. Census Bureau, 2006 Colorado QuickFacts,
http://quickfacts.census.gov/qfd/states/o8ooo.html. Boulder County is approximately 90%
white, mirroring the statewide proportion. U.S. Census Bureau, 2007 American Community
Survey, Selected Housing Characteristics: l-year Estimates. Less than two percent of the
African American population in the five-county Denver metropolitan statistical area lives in
Boulder County. Denvers Consolidated Plan, 2008-2012, available at
http://www.milehigh.com//resources/custom/pdf/Housing/ConsolidatedPlan/final20o8-
20i2/20o8-20i2ConsolidatedPlan_2.pdf. Pitkin County is approximately 94% white. U.S.
Census Bureau, DP-i Profile of General Demographic Characteristics: 2000 for Pitkin
County, Colorado.
Unbelievably, race still matters: While families with less education are more likely to have
inadequate income, race and gender are more important predictors of inadequate income
than is educational level. For example, white men with high school degrees are more likely to
have adequate income than women of color with a bachelors degree or higher. Diana
Pearce, Colorado Fiscal Policy Institute at the Colorado Center on Law and Policy, Overlooked
and Undercounted: Struggling to Make Ends Meet in Colorado, Mar. 2007, available at
http://www.cclponline.org/ccs/documents/CCLPBooklet_FINAL.pdf (arguing that this self-
sufficiency standard should replace the federal poverty standards, which, alhough innovative
for their time, are now methodologically out of date and no longer an accurate measure of
poverty). Using the Federal Poverty Level, about 7% of Colorado households are designated
officially as poor. Using the Self-Sufficiency Standard, more than 20% of Colorado
households lack sufficient income to meet their basic costs. Id. at 14-15.
85