First Regular Session

Sixty-first General Assembly

LLS NO. 97­0481.01D JY HOUSE BILL 97­1312

STATE OF COLORADO

BY REPRESENTATIVE McPherson;

also SENATOR Schroeder.

ENGROSSED

STATE, VETERANS &

MILITARY AFFAIRS

A BILL FOR AN ACT

CONCERNING THE PROTECTION OF PROPERTY DEVELOPMENT RIGHTS ESTABLISHED IN PROPERTY INCLUDED IN APPROVED SITE SPECIFIC DEVELOPMENT PLANS.

Bill Summary

(Note: This summary applies to this bill as introduced and does not necessarily reflect any amendments which may be subsequently adopted.)

Expands the types of plans and approvals that do not constitute a site specific development plan. Specifies that a vested property right is not subject to certain subsequent land use restrictions.

Provides that local government approval of a site specific development plan for a particular parcel or parcels of property:

! May create a vested property right subject to approval at a public meeting;

! Results in the vesting of a certain zoning classification; and

! Supersedes any previously approved site specific development plan on such property.

Specifies when a local government is to approve or deny a vested property right in a site specific development plan. Specifies the circumstances under which a local government may deny a vested property right in a site specific development plan. Provides that a vested property right is established to the extent of the specific elements, level of detail, and other objective information shown on the approved site specific development plan. Requires a local government to bear the cost and expense of publishing the notice concerning the approval of a site specific development plan. Prohibits a local government from requiring a landowner to waive a vested property right or existing zoning classification as a condition of a permit or other approval. Provides that certain zoning changes that are not part of a site specific development plan do not result in the creation of vested property rights. Allows a local government to charge a reasonable fee to a landowner for the approval of a vested property right in a site specific development.

Changes the vesting period of a property right from 3 years to the greater of at least 3 years for any development with a gross site acreage of less than 35 acres or at least 5 years for any development with a gross site acreage of 35 acres or more, whichever is applicable, or until a landowner fails to comply with any landowner development obligations. Specifies when a vested property right terminates and the circumstances under which the right is extended. Specifies that the pendency of an initiative or referendum or certain legal proceedings tolls such vesting periods as well as the landowner's compliance with any landowner development obligations.

Provides that the establishment of a vested property right precludes certain limitations on approvals that adversely impacts the development or use of property for which the vested property right is established. Expands the types of costs and expenses that a landowner may receive as just compensation for subsequent regulation of a vested property right. Expands the types of ordinances or regulations that apply notwithstanding a vested property right.

Specifies that a prevailing party in a lawsuit or arbitration proceeding arising out of the provisions of this act are entitled to reasonable costs and expenses, including attorney fees.

Be it enacted by the General Assembly of the State of Colorado:

SECTION 1.  24­68­101 (1) (b), Colorado Revised Statutes, 1988 Repl. Vol., is amended to read:

24­68­101.  Legislative declaration. (1)  The general assembly hereby finds and declares that:

(b)  WITH THE ENACTMENT OF MORE RESTRICTIVE LAND USE LAWS, the ability of a landowner to obtain a vested property right after local governmental approval of a site specific development plan will preserve the prerogatives and authority of local government with respect to land use matters, while promoting those areas of statewide concern described in paragraph (a) of this subsection (1).

SECTION 2.  24­68­102 (4) and (5), Colorado Revised Statutes, 1988 Repl. Vol., are amended to read:

24­68­102.  Definitions.  As used in this article, unless the context otherwise requires:

(4) (a)  "Site specific development plan" means a ANY plan FOR LAND USE OR DEVELOPMENT which has been submitted FOR APPROVAL to a local government by a landowner or his THE LANDOWNER'S representative. describing with reasonable certainty the type and intensity of use for a specific parcel or parcels of property. Such plan may be in the form of, but need not be limited to, any of the following plans or approvals: A planned unit development plan, a subdivision plat, a specially planned area, a planned building group, a general submission plan, a preliminary or general development plan, a conditional or special use plan, a development agreement, or any other land use approval designation as may be utilized by a local government. What constitutes a site specific development plan under this article that would trigger a vested property right shall be finally determined by the local government either pursuant to ordinance or regulation or upon an agreement entered into by the local government and the landowner, and the document that triggers such vesting shall be so identified at the time of its approval. A variance shall not constitute a site specific development plan. "Site specific development plan" shall not include a sketch plan as defined in section 30­28­101 (8), C.R.S., or a preliminary plan as defined in section 30­28­101 (6), C.R.S. EACH LOCAL GOVERNMENT SHALL DESIGNATE, BY ORDINANCE OR REGULATION, THE SITE SPECIFIC DEVELOPMENT PLANS USED BY THE LOCAL GOVERNMENT FOR WHICH A VESTED PROPERTY RIGHT SHALL BE DEEMED ESTABLISHED UPON APPROVAL OF SUCH SITE SPECIFIC DEVELOPMENT PLAN. THE SPECIFIC ELEMENTS, LEVEL OF DETAIL, AND OBJECTIVE INFORMATION TO BE SHOWN ON A SITE SPECIFIC DEVELOPMENT PLAN UNDER THIS ARTICLE SHALL BE GOVERNED BY THE ORDINANCE OR REGULATION OF THE LOCAL GOVERNMENT THAT PERTAINS TO THE APPROVAL PROCESS.

(b)  "SITE SPECIFIC DEVELOPMENT PLAN" DOES NOT INCLUDE THE FOLLOWING: A ZONING ORDINANCE, REGULATION, OR MAP, A REZONING, A VARIANCE, A SKETCH PLAN AS DEFINED IN SECTION 30­28­101 (8), C.R.S., A BUSINESS LICENSE, A FLOODWAY OR FLOODPLAIN PERMIT, A FRANCHISE, A TEMPORARY USE PERMIT, A DESIGNATION OF AN AREA OF STATE INTEREST PURSUANT TO ARTICLE 65.1 OF THIS TITLE, OR THE CREATION OF IMPROVEMENT DISTRICTS PURSUANT TO PART 6 OF ARTICLE 20 OF TITLE 30, C.R.S., OR PURSUANT TO PART 5 OF ARTICLE 25 OF TITLE 31, C.R.S. A PLANNED UNIT DEVELOPMENT SHALL NOT BE DEEMED OR CONSIDERED TO BE ZONING UNDER THIS PARAGRAPH (b).

(5)  "Vested property right" means the right to undertake and complete the development and use of property under the terms and conditions of a site specific development plan AND THIS ARTICLE WITHOUT COMPLIANCE WITH SUBSEQUENT CHANGES IN ZONING REGULATIONS, DEVELOPMENT STANDARDS, OR LIMITATIONS ON ISSUANCE OF BUILDING PERMITS, EXCEPT AS PROVIDED IN SECTION 24­68­105 AND SUBJECT TO ALL SUBSEQUENT REQUIRED LAND USE APPROVALS, IF ANY.

SECTION 3.  24­68­103, Colorado Revised Statutes, 1988 Repl. Vol., is amended to read:

24­68­103.  Vested property right ­ establishment. (1) (a) (I)   A vested property right shall be deemed established with respect to any property upon the approval, or conditional approval, of a site specific development plan, following notice and public hearing, by the local government in which the property is situated. THE FOLLOWING RIGHTS SHALL BE VESTED UPON APPROVAL BY A LOCAL GOVERNMENT AT A PUBLIC MEETING OR HEARING OF A SITE SPECIFIC DEVELOPMENT PLAN DESIGNATED PURSUANT TO SECTION 24­68­102 (4) (a) UPON WRITTEN REQUEST OF THE LANDOWNER OR LANDOWNER'S REPRESENTATIVE FOR A VESTED PROPERTY RIGHT IN A SITE SPECIFIC DEVELOPMENT PLAN NOT LESS THAN THIRTY DAYS PRIOR TO THE DATE OF THE PUBLIC MEETING OR HEARING AT WHICH THE SITE SPECIFIC DEVELOPMENT PLAN IS CONSIDERED FOR APPROVAL:

(A)  A VESTED PROPERTY RIGHT WITH RESPECT TO THE DENSITY AND USE SPECIFIED IN SUCH SITE SPECIFIC DEVELOPMENT, WHICH SHALL BE ESTABLISHED UPON THE APPROVAL OF THE SITE SPECIFIC DEVELOPMENT PLAN AND SHALL NOT BE CHANGED BY THE LOCAL GOVERNMENT DURING THE VESTING PERIOD SET FORTH IN SECTION 24­68­104 (1); AND

(B)  A VESTED PROPERTY RIGHT TO THE EXTENT OF THE SPECIFIC ELEMENTS, LEVEL OF DETAIL, AND OTHER OBJECTIVE INFORMATION SHOWN ON THE APPROVED SITE SPECIFIC DEVELOPMENT PLAN.

(II)  NOTHING IN THIS PARAGRAPH (a) SHALL BE CONSTRUED TO

PROHIBIT A LOCAL GOVERNMENT FROM CONSIDERING A REQUEST BY A LANDOWNER OR LANDOWNER'S REPRESENTATIVE FOR A VESTED PROPERTY RIGHT TO THE EXTENT OF THE SPECIFIC ELEMENTS, LEVEL OF DETAIL, AND OTHER OBJECTIVE INFORMATION SHOWN IN A SITE SPECIFIC DEVELOPMENT PLAN THAT HAS NOT BEEN DESIGNATED BY A LOCAL GOVERNMENT PURSUANT TO SECTION 24­68­102 (4) (a).

(c)  A VESTED PROPERTY RIGHT IS ESTABLISHED SUBJECT TO COMPLIANCE WITH ALL EXISTING ORDINANCES AND REGULATIONS AND ALL SUBSEQUENTLY REQUIRED PERMITS AND LAND USE APPROVALS, IF ANY. Such THE vested property right shall attach to and run with the applicable property and shall confer upon the landowner AND ITS SUCCESSORS AND ASSIGNS the right to undertake and complete the development and use of said THE property under the terms and conditions of the site specific development plan including any amendments thereto TO THE PLAN THAT ARE MUTUALLY AGREED TO BY THE LANDOWNER AND THE LOCAL GOVERNMENT. A local government may approve a site specific development plan upon such terms and conditions as may reasonably be necessary to protect the public health, safety, and welfare.

Such conditional approval shall result in a vested property right, although failure to abide by such THE terms and conditions OF THE APPROVAL will result in a forfeiture of vested property rights. VESTED PROPERTY RIGHTS IN a site specific development plan shall be deemed approved upon the effective date of the local government legal action, resolution, or ordinance relating thereto. Such approval shall be subject to all rights NOT IMPAIR ANY RIGHT of referendum and OR judicial review; except that the period of time permitted by law for the exercise of such rights shall not begin to run until the date of publication, in a newspaper of general circulation within the jurisdiction of the local government granting the approval, of a notice advising the general public of the site specific development plan approval and creation of a vested property right pursuant to this article. Such publication shall occur no later than fourteen days following approval AND SHALL BE AT THE COST AND EXPENSE OF THE LOCAL GOVERNMENT.

(2)  Zoning that is not part of a site specific development plan shall not result in the creation of vested property rights. THE ZONING IN EFFECT ON THE DATE THAT AN APPLICATION IS ACCEPTED THAT RESULTS IN THE ESTABLISHMENT OF A VESTED PROPERTY RIGHT IN A SITE SPECIFIC DEVELOPMENT PLAN REMAINS APPLICABLE TO THE PROPERTY DURING THE VESTING PERIOD SET FORTH IN SECTION 24­68­104.

(3)  EXCEPT FOR WAIVERS OF VESTED PROPERTY RIGHTS NEGOTIATED BETWEEN LOCAL GOVERNMENTS AND LANDOWNERS UPON ANNEXATION, A LOCAL GOVERNMENT IS PROHIBITED FROM REQUIRING A LANDOWNER TO WAIVE A VESTED PROPERTY RIGHT AS A CONDITION OF ANY PERMIT OR OTHER APPROVAL.

(4)  A LOCAL GOVERNMENT MAY CHARGE THE LANDOWNER A REASONABLE FEE FOR A REQUEST BY A LANDOWNER FOR APPROVAL OF A VESTED PROPERTY RIGHT IN A SITE SPECIFIC DEVELOPMENT PLAN. THE FEE SHALL NOT EXCEED THE COST TO THE LOCAL GOVERNMENT TO REVIEW AND ACT UPON SUCH REQUEST AND THE COST OF PUBLICATION REQUIRED BY THIS ARTICLE.

SECTION 4.   24­68­104 (3), Colorado Revised Statutes, 1988 Repl. Vol., is amended, and the said 24­68­104 is further amended BY THE ADDITION OF THE FOLLOWING NEW SUBSECTIONS, to read:

24­68­104.  Vested property right ­ duration ­ termination.

(3)  Following approval or conditional approval of a VESTED PROPERTY RIGHT IN A site specific development plan, nothing in this article shall exempt such a THE plan from subsequent reviews and approvals by the local government to ensure compliance with the terms and conditions of the original approval, if such THE reviews and approvals are not inconsistent with said THE original approval.

(4)  EXCEPT AS OTHERWISE PROVIDED IN THIS SUBSECTION (4), A VESTED PROPERTY RIGHT TERMINATES AT THE END OF THE PERIOD ESTABLISHED UNDER SUBSECTION (1) OF THIS SECTION, UNLESS OTHERWISE EXTENDED BY THE LOCAL GOVERNMENT PURSUANT TO SUBSECTIONS (1) AND (2) OF THIS SECTION. IF A BUILDING PERMIT HAS BEEN ISSUED BEFORE THE DATE OF TERMINATION OF A VESTED PROPERTY RIGHT, THE VESTED PROPERTY RIGHT SHALL NOT EXPIRE UNTIL THE BUILDING PERMIT EXPIRES. AN UNEXPIRED BUILDING PERMIT ISSUED FOR A PROPERTY WITH A VESTED PROPERTY RIGHT SHALL NOT EXPIRE OR BE REVOKED DUE TO THE EXPIRATION OF A VESTED PROPERTY RIGHT UNDER THIS SECTION.

(5)  THE PENDENCY OF ANY LAWSUIT, ARBITRATION PROCEEDING, INITIATIVE, REFERENDUM, OR OTHER ADMINISTRATIVE PROCEDURE BY A LANDOWNER, A LOCAL GOVERNMENT, OR A MEMBER OF THE PUBLIC PREVENTING THE FINALITY OF OR SEEKING TO MODIFY THE LOCAL GOVERNMENT'S APPROVAL OF A SITE SPECIFIC DEVELOPMENT PLAN TOLLS THE VESTING PERIOD ESTABLISHED UNDER SUBSECTION (1) OF THIS SECTION UNTIL THE AFFIRMATION OF SUCH APPROVAL THROUGH THE ENTRY OF A FINAL, NONAPPEALABLE ORDER OR UPON APPROVAL BY THE REGISTERED ELECTORS OF THE LOCAL GOVERNMENT.

(6)  THIS SECTION SHALL APPLY TO ANY PREVIOUSLY APPROVED SITE SPECIFIC DEVELOPMENT PLAN WITH A VESTED PROPERTY RIGHT THAT HAS NOT EXPIRED AS OF THE EFFECTIVE DATE OF THIS SECTION, AS AMENDED.

SECTION 5.  The introductory portion to 24­68­105 (1), 24­68­105 (1) (c) and (2), Colorado Revised Statutes, 1988 Repl. Vol., as amended, are amended to read:

24­68­105.  Subsequent regulation prohibited ­ exceptions. (1)  A vested property right, once established as provided in this article, precludes IS NOT SUBJECT TO any SUBSEQUENT zoning ACTION OR CLASSIFICATION, or land use action, LIMITATION IMPOSED BY A LOCAL GOVERNMENT ON ACCESS TO OR USE OF AVAILABLE UTILITY SERVICES CONTROLLED BY A LOCAL GOVERNMENT SHOULD CAPACITY BE AVAILABLE FOR SUCH SERVICES, BUILDING PERMIT LIMITATION, OR OTHER MORATORIUM OR LIMITATION ON PERMITS OR APPROVALS by a local government or pursuant to an initiated measure which THAT would alter, impair, prevent, diminish, impose a moratorium on development, or otherwise delay the development or use of the property as set forth in a site specific development plan, except:

(c)  To the extent that the affected landowner receives just compensation for all costs, expenses, and liabilities incurred by the landowner after approval by the governmental entity, including, but not limited to, costs incurred in preparing the site for development consistent with the site specific development plan, CONSTRUCTING OR INSTALLING IMPROVEMENTS, AND DEDICATING PROPERTY, INCLUDING THE VALUE OF SUCH PROPERTY; all fees paid in consideration of financing; and all architectural, planning, marketing, legal, and other consultants' fees, together with interest thereon at the legal rate until paid. Just compensation shall not include any diminution in the value of the property which is caused by such action.

(2)  The establishment of a vested property right shall not preclude the application of ordinances or regulations which THAT are general in nature and are applicable to all property subject to land use regulation by a local government, including, but not limited to, building, fire, plumbing, electrical, and mechanical codes, THE PROVISION OF UTILITY SERVICES, AND SIMILAR REGULATIONS THAT PROMOTE AND PROTECT THE HEALTH, SAFETY, AND WELFARE OF THE PUBLIC.

SECTION 6.  24­68­106 (4), Colorado Revised Statutes, 1988 Repl. Vol., is repealed as follows:

24­68­106.  Miscellaneous provisions. (4)  This article shall apply only to site specific development plans approved on or after January 1, 1988.

SECTION 7.  24­68­106, Colorado Revised Statutes, 1988 Repl. Vol., is amended BY THE ADDITION OF A NEW SUBSECTION to read:

24­68­106.  Miscellaneous provisions. (5)  IF A LAWSUIT OR ARBITRATION PROCEEDING IS COMMENCED ARISING OUT OF OR RELATED TO THE APPLICATION, INTERPRETATION, OR ENFORCEMENT OF THE PROVISIONS OF THIS ARTICLE WITH RESPECT TO A SPECIFIC PARCEL OR PARCELS OF PROPERTY, THE PREVAILING PARTY IS ENTITLED TO RECOVER ITS REASONABLE COSTS AND EXPENSES, INCLUDING ATTORNEY FEES.

SECTION 8.  Effective date ­ applicability. (1)  This act shall take effect on January 1, 1998; except that, if a referendum petition is filed against this act or an item, section, or part of this act within the ninety­day period after final adjournment of the general assembly that is allowed for submitting a referendum petition pursuant to article V, section 1 (3) of the state constitution, then the act, item, section, or part, if approved by the people, shall take effect on the date of the official declaration of the vote thereon by proclamation of the governor or January 1, 1998, whichever is later.

(2)  The provisions of this act shall apply to site specific development plans approved on or after the applicable effective date of this act; except that section 4 of this act shall apply to any previously approved site specific development plan with a vested property right that has not expired as of said date.