COCODE

29-20-104. Powers of local governments - definition.

Statute text

(1) Except as expressly provided in section 29-20-104.2 or 29-20-104.5, the power and authority granted by this section does not limit any power or authority presently exercised or previously granted. Except as provided in section 29-20-104.2, each local government within its respective jurisdiction has the authority to plan for and regulate the use of land by:

(a) Regulating development and activities in hazardous areas;

(b) Protecting lands from activities which would cause immediate or foreseeable material danger to significant wildlife habitat and would endanger a wildlife species;

(d) Regulating, with respect to the establishment of, roads on public lands administered by the federal government; this authority includes authority to prohibit, set conditions for, or require a permit for the establishment of any road authorized under the general right-of-way granted to the public by 43 U.S.C. 932 (R.S. 2477) but does not include authority to prohibit, set conditions for, or require a permit for the establishment of any road authorized for mining claim purposes by 30 U.S.C. 21 et seq., or under any specific permit or lease granted by the federal government;

(e) Regulating the location of activities and developments which may result in significant changes in population density;

(e.5) Regulating development or redevelopment in order to promote the construction of new affordable housing units. The provisions of section 38-12-301 shall not apply to any land use regulation adopted pursuant to this section that restricts rents on newly constructed or redeveloped housing units as long as the regulation provides a choice of options to the property owner or land developer and creates one or more alternatives to the construction of new affordable housing units on the building site. Nothing in this subsection (1)(e.5) is construed to authorize a local government to adopt or enforce any ordinance or regulation that would have the effect of controlling rent on any existing private residential housing unit in violation of section 38-12-301.

(e.7) Notwithstanding any other provision of this section, a local government shall not exercise the authority granted by subsection (1)(e.5) of this section unless the local government demonstrates, at the time it enacts a land use regulation for the purpose of exercising such authority, it has taken one or more of the following actions to increase the overall number and density of housing units within its jurisdictional boundaries or to promote or create incentives to the construction of affordable housing units:

(I) Adopt changes to its zoning and land use policies that are intended to increase the overall density and availability of housing, including but not limited to:

(A) Changing its zoning regulations to increase the number of housing units allowed on a particular site;

(B) Promoting mixed-use zoning that permits housing units to be incorporated in a wider range of developments;

(D) Increasing the permitted household size in single family homes;

(E) Promoting denser housing development near transit stations and places of employment;

(F) Granting reduced parking requirements to residential or mixed-use developments that include housing near transit stations or affordable housing developments;

(G) Granting density bonuses to development projects that incorporate affordable housing units; or

(H) Adopting policies to promote the diversity of the housing stock within the local community including a mix of both for-sale and rental housing opportunities;

(II) Materially reduce or eliminate utility charges, regulatory fees, or taxes imposed by the local government applicable to affordable housing units;

(III) Grant affordable housing developments material regulatory relief from any type of zoning or other land development regulations that would ordinarily restrict the density of new development or redevelopment;

(IV) Adopt policies to materially make surplus property owned by the local government available for the development of housing; or

(V) Adopt any other regulatory measure that is expressly designed and intended to increase the supply of housing within the local government's jurisdictional boundaries.

(e.9) The department of local affairs shall offer guidance to assist local governments in connection with the implementation of this section.

(f) Providing for phased development of services and facilities;

(g) (I) Regulating the use of land on the basis of the impact of the use on the community or surrounding areas;

(II) (A) The general assembly finds and declares that access to outpatient clinical facilities providing reproductive health care, as defined in section 25-6-402 (4), is a matter of statewide concern and that, for purposes of zoning and other land use planning, such facilities fall within the meaning of a medical office use, a medical clinic use, a health-care use, and other facilities that provide outpatient health-care services.

(B) For the purposes of zoning and other land use planning, every local government that has adopted or adopts a zoning ordinance shall recognize the provision of outpatient reproductive health care, as defined in section 25-6-402 (4), as a permitted use in any zone in which the provision of general outpatient health care is recognized as a permitted use.

(C) Nothing in this subsection (1)(g)(II) restricts or supersedes the authority of a local government to enact uniform zoning ordinances and other land use regulations that comply with this subsection (1)(g)(II).

(h) Regulating the surface impacts of oil and gas operations, as defined in section 34-60-103 (6.5), deep geothermal operations, as defined in section 37-90.5-103 (3), class VI injection wells, and intrastate underground natural gas storage facilities, as defined in section 34-64-102 (3.5), in a reasonable manner to address matters specified in this subsection (1)(h) and to protect and minimize adverse impacts to public health, safety, and welfare and the environment. Nothing in this subsection (1)(h) is intended to alter, expand, or diminish the authority of local governments to regulate air quality under section 25-7-128. As used in this subsection (1)(h), "minimize adverse impacts" means, to the extent necessary and reasonable, to protect public health, safety, and welfare and the environment by avoiding adverse impacts from oil and gas operations, as defined in section 34-60-103 (6.5), deep geothermal operations, as defined in section 37-90.5-103 (3), class VI injection wells, and intrastate underground natural gas storage facilities, as defined in section 34-64-102 (3.5), and minimizing and mitigating the extent and severity of those impacts that cannot be avoided. The following matters are covered by this subsection (1)(h):

(I) Land use;

(II) The location and siting of oil and gas facilities and oil and gas locations, as those terms are defined in section 34-60-103 (6.2) and (6.4); deep geothermal operations, as defined in section 37-90.5-103 (3); class VI injection wells; and intrastate underground natural gas storage facilities, as defined in section 34-64-102 (3.5);

(III) Impacts to public facilities and services;

(IV) Water quality and source, noise, vibration, odor, light, dust, air emissions and air quality, land disturbance, reclamation procedures, cultural resources, emergency preparedness and coordination with first responders, security, and traffic and transportation impacts;

(V) Financial securities, indemnification, and insurance as appropriate to ensure compliance with the regulations of the local government; and

(VI) All other nuisance-type effects of the operations described in this subsection (1)(h); and

(i) 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.

(2) To implement the powers and authority granted in subsection (1)(h) of this section, a local government within its respective jurisdiction has the authority to:

(a) Inspect all facilities subject to local government regulation;

(b) Impose fines for leaks, spills, and emissions;

(c) Impose fees on operators or owners to cover the reasonably foreseeable direct and indirect costs of permitting and regulation and the costs of any monitoring and inspection program necessary to address the impacts of development and to enforce local governmental requirements; and

(d) Impose fees to enhance emergency preparedness and emergency response capabilities if a carbon dioxide release occurs. Allowable expenditures of the fees collected include:

(I) Preparing emergency response plans for a carbon dioxide release;

(II) Purchasing electric emergency response vehicles;

(III) Developing or maintaining a text message or other emergency communication alert system;

(IV) Purchasing devices that assist in the detection of a carbon dioxide release;

(V) Equipment for first responders, local residents, and medical facilities that assist in the preparation for, detection of, or response to the release of carbon dioxide or other toxic or hazardous materials; and

(VI) Training and training materials for first responders, local residents, businesses, and other local entities to prepare for and respond to the release of carbon dioxide or other toxic or hazardous materials.

(3) (a) To provide a local government with technical expertise regarding whether a preliminary or final determination of the location of an oil and gas facility or oil and gas location within its respective jurisdiction could affect oil and gas resource recovery:

(I) Once an operator, as defined in section 34-60-103 (6.8), files an application for the location and siting of an oil and gas facility or oil and gas location and the local government has made either a preliminary or final determination regarding the application, the local government having land use jurisdiction may ask the director of the energy and carbon management commission pursuant to section 34-60-104.5 (3) to appoint a technical review board to conduct a technical review of the preliminary or final determination and issue a report that contains the board's conclusions.

(II) Once a local government has made a final determination regarding an application specified in subsection (3)(a)(I) of this section or if the local government has not made a final determination on an application within two hundred ten days after filing by the operator, the operator may ask the director of the energy and carbon management commission pursuant to section 34-60-104.5 (3) to appoint a technical review board to conduct a technical review of the final determination and issue a report that contains the board's conclusions.

(b) A local government may finalize its preliminary determination without any changes based on the technical review report, finalize its preliminary determination with changes based on the report, or reconsider or do nothing with regard to its already finalized determination.

(c) If an applicant or local government requests a technical review pursuant to subsection (3)(a) of this section, the period to appeal a local government's determination pursuant to rule 106 (a)(4) of the Colorado rules of civil procedure is tolled until the report specified in subsection (3)(a) of this section has been issued, and the applicant is afforded the full period to appeal thereafter.

History

Source: L. 74: Entire article added, p. 353, 1, effective May 17. L. 2001, 2nd Ex. Sess.: IP(1) amended, p. 28, 3, effective November 6. L. 2019: IP(1), (1)(g), and (1)(h) amended and (1)(i), (2), and (3) added, (SB 19-181), ch. 120, p. 503, 4, effective April 16. L. 2021: (1)(e.5), (1)(e.7), and (1)(e.9) added (HB 21-1117), ch. 202, p. 1065, 2, effective September 7. L. 2022: (1)(e.9) amended, (SB 22-212), ch. 421, p. 2982, 71, effective August 10. L. 2023: (1)(g) amended, (SB 23-188), ch. 68, p. 251, 26, effective April 14; IP(1)(h), (1)(h)(II), and (1)(h)(VI) amended, (SB 23-285), ch. 235, p. 1247, 16, effective July 1; (3)(a) amended, (SB 23-285), ch. 235, p. 1255, 31, effective July 1; IP(1) amended, (HB 23-1255), ch. 448, p. 2639, 2, effective August 7; IP(1)(h), (1)(h)(II), (2)(b), and (2)(c) amended and (2)(d) added, (SB 23-016), ch. 165, p. 749, 26, effective August 7.

Annotations

Editor's note: (1) 43 U.S.C. 932, as referenced in subsection (1)(d), was repealed in 1976 by section 706 (a) of Pub.L. 94-579, but said repeal does not terminate any land use right or authorization existing prior to the repeal. See section 701 (a) of Pub.L. 94-579.

(3) Amendments to subsections IP(1)(h) and (1)(h)(II) by SB 23-016 and SB 23-285 were harmonized.

Annotations

Cross references: (1) For the legislative declaration in HB 21-1117, see section 1 of chapter 202, Session Laws of Colorado 2021.

(2) For the legislative declaration in SB 23-188, see section 1 of chapter 68, Session Laws of Colorado 2023.

Annotations

ANNOTATION

Annotations

Law reviews. For comment, "Regionalism or Parochialism: The Land Use Planner's Dilemma", see 48 U. Colo. L. Rev. 575 (1977). For article, "A Municipal Perspective on Senate Bill 15: Impact Fees", see 31 Colo. Law. 93 (May 2002).

This section does not confer upon counties the authority to impose conditions for granting permits for exploratory oil well operation when such authority was granted exclusively to state oil and gas conservation commission under Oil and Gas Conservation Act. Oborne v. County Comm'rs of Douglas Cty., 764 P.2d 397 (Colo. App. 1988), cert. denied, 778 P.2d 1370 (Colo. 1989).

Local Government Land Use Control Enabling Act (enabling act) and the County Planning Code and Building Codes (article 28 of title 30) authorize county regulation of land use in the unincorporated areas of the county. Wilkinson v. Bd. of County Comm'rs, 872 P.2d 1269 (Colo. App. 1993).

This section provides independent authority for local governments to regulate land use to protect wildlife habitat and wildlife species. Droste v. Bd. of County Comm'rs, 85 P.3d 585 (Colo. App. 2003).

No authority to adopt "subdivision" definition contrary to 30-28-101. Sections 29-20-101 to 29-20-107 do not confer the authority upon a county to adopt a definition of "subdivision" in its regulations which is contrary to the express statutory definition found in 30-28-101 (10). Pennobscot, Inc. v. Bd. of County Comm'rs, 642 P.2d 915 (Colo. 1982).

Or to adopt regulations covering land specifically excluded. Sections 29-20-101 to 29-20-107 do not confer the authority to adopt subdivision regulations covering parcels of land which are specifically excluded from the provisions of 30-28-101 (10). Pennobscot, Inc. v. Bd. of County Comm'rs, 642 P.2d 915 (Colo. 1982).

County regulations concerning wetlands protection and nuisance abatement were related to valid county concerns under this act for local governments to regulate land use and protect environment. Colo. Springs v. Eagle County Bd. of County Comm'rs, 895 P.2d 1105 (Colo. App. 1994).

General assembly's grant of land use authority to local governments under the enabling act necessarily implies the authority of a local government to impose, through a public hearing process, a moratorium of limited duration, 10 months in this case, or to halt further development pending adoption of a master plan. The length and conditions of a moratorium are subject to the protection of property owners against uncompensated takings as provided by part 2 of article 20 of this title. Droste v. Bd. of County Comm'rs of Pitkin, 159 P.3d 601 (Colo. 2007).

The enabling act grants broad powers to local governments regulating use of lands within their respective jurisdictions for protecting wildlife, controlling population density and growth, and protecting the surrounding environment, among other things. In light of this broad grant of powers, reading the enabling act to deny local governments authority to conduct studies for overall development of lands within their jurisdiction and to impose reasonable moratoriums on development to conduct those studies would be anomalous and would contravene the apparent purpose and intent of the general assembly. Droste v. Bd. of County Comm'rs of Pitkin, 141 P.3d 852 (Colo. App. 2005), aff'd, 159 P.3d 601 (Colo. 2007).

County had authority under the enabling act to impose temporary moratorium on developmental approvals concerning certain land within county. The enabling act is designed to give local governments additional or supplemental powers for the purposes set forth in the act, including development in hazardous areas, protecting wildlife habitats, protecting areas of historical or archeological significance, controlling population density, and providing for the phasing in of infrastructure. These special considerations, in many instances, supplement those normally involved in creating a zoning master plan or administering a zoning regimen. Accordingly, the enabling act and the county planning statute, article 28 of title 30, have different, though complementary, purposes, and the limitation on temporary zoning in 30-28-121 does not prohibit or limit a moratorium on development for the purpose of conducting studies under the enabling act. Droste v. Bd. of County Comm'rs of Pitkin, 141 P.3d 852 (Colo. App. 2005), aff'd, 159 P.3d 601 (Colo. 2007).

Subsections (1)(e), (1)(g), and (1)(h) do not provide requisite authority to county to regulate roads on landowner's property. Here, record does not provide a factual predicate to support county's argument. With respect to subsection (1)(e), there is nothing in the record to indicate what, if any, population changes may arise as a result of landowners' activities nor is there anything in the record to support a conclusion that any changes in population would be "significant". With respect to subsection (1)(g), there is nothing in the record elucidating any impact, significant or not, on the community or surrounding areas. Finally, with respect to subsection (1)(h), the county has not specifically adopted ordinances that deal with the particular roads at issue, as the roads are situated on parcels that are not subject to subdivision regulation. Zweygardt v. Bd. of County Comm'rs of Elbert County, 190 P.3d 848 (Colo. App. 2008).

Applied in Theobald v. Bd. of County Comm'rs, 644 P.2d 942 (Colo. 1982); Bd. of County Comm'rs v. Bowen/Edwards Assoc., 830 P.2d 1045 (Colo. 1992).