First Regular Session
Sixty-second General Assembly
LLS NO. 99-0423.01 Jerry Barry HOUSE BILL 99-1192
STATE OF COLORADO
BY REPRESENTATIVES Stengel, Fairbank, Kester, Lee, McElhany,
Mitchell, and Spence;
also SENATOR Anderson.
REENGROSSED LOCAL GOVERNMENT
A BILL FOR AN ACT
101 CONCERNING REGULATORY IMPAIRMENT OF PROPERTY RIGHTS.
Bill Summary
(Note: This summary applies to this bill as introduced and does
not necessarily reflect any amendments that may be subsequently
adopted.)
[ ] denotes HOUSE amendment. { } denotes SENATE amendment.
Capital letters indicate new material to be added to existing statute.
Dashes through the words indicate material to be deleted from existing statute.
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[]Declares that the right to own and use private property is
fundamental, citing constitutional provisions and disapproving the
placement of burdens on individual property owners to achieve general
public purposes. Declares the issue a matter of statewide concern.
Prohibits local governments, when imposing conditions upon the
granting of land-use approvals, from requiring a landowner to dedicate
land to the public or pay a specific amount of money to a public entity
except when:
There is an essential nexus between the dedication or payment
and a legitimate local government interest; and
The dedication or payment is roughly proportional, both in
nature and extent, to the impact of the owner's proposed use or
development of the property.
Requires a local government to base any requirement for such
dedication or payment on duly adopted standards that ensure rational and
consistent application of the requirements.
Gives property owners the right to seek a court order relieving
them of the duty of complying with a requirement for dedication of land
or payment of money that does not meet the standards set forth in the act.
Places the burden of proof on the local governmental entity involved in
any such action.
Exempts legislatively formulated assessments, fees, and charges
that are imposed on a broad class of property owners by a local
government. States that nothing in this legislation shall be construed to
affect the expressly granted land-use authority of any local government.
1 Be it enacted by the General Assembly of the State of Colorado:
2 SECTION 1. Article 20 of title 29, Colorado Revised Statutes,
3 is amended BY THE ADDITION OF A NEW PART to read:
4 PART 2
5 REGULATORY IMPAIRMENT OF PROPERTY RIGHTS
6 29-20-201. Legislative declaration. (1) THE GENERAL
7 ASSEMBLY HEREBY FINDS AND DECLARES THAT THE RIGHT TO OWN AND
8 USE PRIVATE PROPERTY IS FUNDAMENTAL TO THE CONTINUED VITALITY OF
9 A DEMOCRATIC SOCIETY AND THAT GOVERNMENTAL REGULATIONS THAT
10 IMPAIR THAT RIGHT DERIVE SOLELY FROM EXPRESSLY GRANTED
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1 AUTHORITY. THIS PART 2 APPROPRIATELY AND NECESSARILY
2 UNDERSCORES AND REINVIGORATES THE FEDERAL CONSTITUTIONAL
3 PROHIBITION AGAINST TAKING PRIVATE PROPERTY FOR PUBLIC USE
4 WITHOUT JUST COMPENSATION AND THE STATE CONSTITUTIONAL
5 PROHIBITIONS AGAINST TAKING OR DAMAGING PRIVATE PROPERTY FOR
6 PUBLIC OR PRIVATE USE. THE GENERAL ASSEMBLY FURTHER FINDS AND
7 DECLARES THAT A SINGLE PRIVATE PROPERTY OWNER SHOULD NOT BE
8 REQUIRED, UNDER THE GUISE OF POLICE POWER REGULATION OF PROPERTY,
9 TO BEAR BURDENS FOR THE PUBLIC GOOD THAT SHOULD MORE PROPERLY
10 BE BORNE BY THE PUBLIC AT LARGE.
11 (2) THE GENERAL ASSEMBLY INTENDS, THROUGH THE ADOPTION OF
12 SECTION 29-20-203, TO CODIFY CERTAIN CONSTITUTIONALLY-BASED
13 STANDARDS THAT HAVE BEEN ESTABLISHED AND APPLIED BY THE COURTS.
14 THE FAIR, CONSISTENT, AND EXPEDITIOUS ADJUDICATION OF DISPUTES
15 OVER LAND USE IN STATE COURTS IN ACCORDANCE WITH CONSTITUTIONAL
16 STANDARDS IS A MATTER OF STATEWIDE CONCERN.
17 29-20-202. Definitions. AS USED IN THIS PART 2, UNLESS THE
18 CONTEXT OTHERWISE REQUIRES:
19 (1) "LAND-USE APPROVAL" MEANS ANY FINAL ACTION OF A LOCAL
20 GOVERNMENT THAT HAS THE EFFECT OF AUTHORIZING THE USE OR
21 DEVELOPMENT OF A PARTICULAR PARCEL OF REAL PROPERTY.
22 (2) "LOCAL GOVERNMENT" HAS THE SAME MEANING AS IS SET
23 FORTH IN SECTION 29-20-103 (1).
24 29-20-203. Conditions on land-use approvals. (1) IN IMPOSING
25 CONDITIONS UPON THE GRANTING OF LAND-USE APPROVALS, NO LOCAL
26 GOVERNMENT SHALL REQUIRE AN OWNER OF PRIVATE PROPERTY TO
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1 DEDICATE REAL PROPERTY TO THE PUBLIC, OR PAY MONEY TO A PUBLIC
2 ENTITY IN AN AMOUNT THAT IS DETERMINED ON AN INDIVIDUAL AND
3 DISCRETIONARY BASIS, UNLESS THERE IS AN ESSENTIAL NEXUS BETWEEN
4 THE DEDICATION OR PAYMENT AND A LEGITIMATE LOCAL GOVERNMENT
5 INTEREST, AND THE DEDICATION OR PAYMENT IS ROUGHLY PROPORTIONAL
6 BOTH IN NATURE AND EXTENT TO THE IMPACT OF THE PROPOSED USE OR
7 DEVELOPMENT OF SUCH PROPERTY. THIS SECTION SHALL NOT APPLY TO
8 ANY LEGISLATIVELY FORMULATED ASSESSMENT, FEE, OR CHARGE THAT IS
9 IMPOSED ON A BROAD CLASS OF PROPERTY OWNERS BY A LOCAL
10 GOVERNMENT.
11 (2) NO LOCAL GOVERNMENT SHALL IMPOSE ANY DISCRETIONARY
12 CONDITION UPON A LAND-USE APPROVAL UNLESS THE CONDITION IS BASED
13 UPON DULY ADOPTED STANDARDS THAT ARE SUFFICIENTLY SPECIFIC TO
14 ENSURE THAT THE CONDITION IS IMPOSED IN A RATIONAL AND CONSISTENT
15 MANNER. [THIS SUBSECTION (2) SHALL NOT APPLY TO A DECISION
16 CONCERNING THE REZONING OF A SINGLE PARCEL.]
17 29-20-204. Remedy for enforcement against a private property
18 owner. (1) (a) WITHIN THIRTY DAYS AFTER THE DATE OF A DECISION OR
19 ACTION OF A LOCAL GOVERNMENT IMPOSING A CONDITION IN GRANTING A
20 LAND-USE APPROVAL, THE OWNER OF SUCH PROPERTY MAY NOTIFY THE
21 LOCAL GOVERNMENT IN WRITING OF AN ALLEGED VIOLATION OF SECTION
22 29-20-203.
23 (b) UPON THE FILING OF SUCH WRITTEN NOTICE, THE LOCAL
24 GOVERNMENT SHALL INFORM EACH MEMBER OF THE GOVERNING BODY IN
25 WRITING THAT THE NOTICE HAS BEEN FILED. THE LOCAL GOVERNMENT
26 SHALL RESPOND TO SUCH NOTICE WITHIN THIRTY DAYS AFTER THE DATE OF
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1 SUCH NOTICE BY INFORMING THE PROPERTY OWNER WHETHER SUCH
2 APPLICATION OR ENFORCEMENT WILL PROCEED AS PROPOSED, WILL BE
3 MODIFIED, OR WILL BE DISCONTINUED. THE FILING OF SUCH NOTICE SHALL
4 BE A CONDITION PRECEDENT TO THE OWNER'S RIGHT TO PROCEED UNDER
5 SUBSECTION (2) OF THIS SECTION.
6 (2) (a) WITHIN SIXTY DAYS AFTER THE DATE THE LOCAL
7 GOVERNMENT IS REQUIRED TO RESPOND UNDER PARAGRAPH (b) OF
8 SUBSECTION (1) OF THIS SECTION, THE PROPERTY OWNER MAY FILE A
9 PETITION IN THE DISTRICT COURT FOR THE JUDICIAL DISTRICT IN WHICH THE
10 SUBJECT PROPERTY IS LOCATED SEEKING RELIEF FROM THE ENFORCEMENT
11 OR APPLICATION OF THE LOCAL LAW, REGULATION, POLICY, OR
12 REQUIREMENT ON THE BASIS OF AN ALLEGED VIOLATION OF SECTION
13 29-20-203. FAILURE TO FILE SUCH A PETITION WITHIN SAID SIXTY-DAY
14 PERIOD SHALL BAR RELIEF UNDER THIS SECTION.
15 (b) (I) WITHIN THIRTY DAYS AFTER SERVICE ON THE LOCAL
16 GOVERNMENT OF A PETITION PURSUANT TO PARAGRAPH (a) OF THIS
17 SUBSECTION (2), THE LOCAL GOVERNMENT SHALL ASSEMBLE AND FILE
18 WITH THE CLERK OF THE DISTRICT COURT ALL DOCUMENTS IN ITS
19 POSSESSION CONCERNING THE ENFORCEMENT OR APPLICATION OF THE
20 LOCAL LAW, REGULATION, POLICY, OR REQUIREMENT, INCLUDING THE
21 RECORD OF ANY HEARING OR PROCEEDING CONCERNING SUCH
22 ENFORCEMENT OR APPLICATION. IF THERE ARE NO CONTESTED FACTUAL
23 ISSUES AND IF THE COURT DETERMINES THAT THE FACTS AS REFLECTED BY
24 THE DOCUMENTS AND RECORD FILED ARE SUFFICIENT TO DETERMINE THE
25 CASE, THE COURT SHALL PROCEED TO DETERMINE THE CASE IN THE MOST
26 EXPEDITIOUS MANNER AND SHALL ISSUE APPROPRIATE PROCEDURAL
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1 ORDERS TO FACILITATE SUCH DETERMINATION.
2 (II) IF THERE ARE CONTESTED ISSUES OF FACT, OR IF THE COURT
3 DETERMINES THAT ADDITIONAL EVIDENCE IS NECESSARY TO DETERMINE
4 THE CASE, THE COURT MAY ORDER THE PARTIES TO PROVIDE SUCH
5 ADDITIONAL FACTS AND INFORMATION AS THE COURT MAY DEEM
6 APPROPRIATE. THE COURT SHALL ORDER A HEARING AS SOON AS ITS
7 DOCKET PERMITS TO RESOLVE SUCH ISSUES OF FACT OR HEAR SUCH
8 ADDITIONAL EVIDENCE.
9 (c) WHEN IT HAS BEEN ESTABLISHED THAT A REQUIRED
10 DEDICATION OF REAL PROPERTY OR PAYMENT OF MONEY AS DESCRIBED IN
11 SECTION 29-20-203 (1) HAS BEEN OR WILL BE IMPOSED, THE BURDEN
12 SHALL BE UPON THE LOCAL GOVERNMENT TO ESTABLISH, BASED UPON
13 SUBSTANTIAL EVIDENCE APPEARING IN THE RECORD, THAT SUCH
14 DEDICATION OR PAYMENT IS ROUGHLY PROPORTIONAL TO THE IMPACT OF
15 THE PROPOSED USE OF THE SUBJECT PROPERTY.
16 (d) IN DETERMINING WHETHER THE PROPERTY OWNER SHOULD BE
17 GRANTED RELIEF FROM THE LOCAL GOVERNMENT'S ENFORCEMENT OR
18 APPLICATION OF THE LOCAL LAW, REGULATION, POLICY, OR REQUIREMENT,
19 THE COURT SHALL INCLUDE THE FOLLOWING CONSIDERATIONS:
20 (I) WHETHER SUCH ENFORCEMENT OR APPLICATION HAS BEEN
21 ACCOMPLISHED PURSUANT TO A DULY ADOPTED LAW, REGULATION,
22 POLICY, OR REQUIREMENT;
23 (II) WHETHER SUCH ENFORCEMENT OR APPLICATION ADVANCES A
24 LEGITIMATE LOCAL GOVERNMENT INTEREST;
25 (III) WHETHER ANY REQUIRED DEDICATION OF REAL PROPERTY OR
26 PAYMENT OF MONEY AS DESCRIBED IN SECTION 29-20-203 (1) REQUIRED
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1 BY SUCH ENFORCEMENT OR APPLICATION IS ROUGHLY PROPORTIONAL TO
2 THE IMPACT OF THE PROPOSED USE OF THE SUBJECT PROPERTY;
3 (IV) WHETHER THERE ARE ADEQUATE LEGISLATIVE STANDARDS
4 AND CRITERIA TO ENSURE THAT THE LOCAL LAW, REGULATION, POLICY, OR
5 REQUIREMENT IS RATIONALLY AND CONSISTENTLY APPLIED.
6 (e) (I) IF THE COURT DETERMINES THAT LOCAL GOVERNMENT
7 ENFORCEMENT OR APPLICATION OF THE LOCAL LAW, REGULATION, POLICY,
8 OR REQUIREMENT TO A SPECIFIC PARCEL DOES NOT COMPLY WITH SECTION
9 29-20-203, THE COURT SHALL GRANT APPROPRIATE RELIEF TO THE
10 PROPERTY OWNER UNDER THE FACTS PRESENTED. SUCH RELIEF MAY
11 INCLUDE, BUT SHALL NOT BE LIMITED TO, ORDERING REVISION OF ANY
12 REQUIRED DEDICATION OF REAL PROPERTY OR PAYMENT OF MONEY AS
13 DESCRIBED IN SECTION 29-20-203 (1) TO MAKE IT ROUGHLY
14 PROPORTIONAL TO THE IMPACT OF THE PROPOSED USE OF THE SUBJECT
15 PROPERTY.
16 (II) IF THE COURT DETERMINES THAT SUCH ENFORCEMENT OR
17 APPLICATION IS NOT BASED ON A DULY ADOPTED LAW, REGULATION,
18 POLICY, OR REQUIREMENT OR THAT THERE ARE NOT ADEQUATE STANDARDS
19 AND CRITERIA TO ENSURE THAT SUCH ENFORCEMENT OR APPLICATION IS
20 RATIONAL AND CONSISTENT, THE COURT SHALL INVALIDATE THE
21 ENFORCEMENT OR APPLICATION OF THE LAW, REGULATION, POLICY, OR
22 REQUIREMENT AS APPLIED TO THE SUBJECT PROPERTY.
23 (f) IN ANY PROCEEDING UNDER THIS SUBSECTION (2), THE COURT
24 MAY IN ITS DISCRETION AWARD THE PREVAILING PARTY ITS COSTS AND
25 REASONABLE ATTORNEY FEES.
26 (3) NOTHING IN THIS SECTION SHALL AFFECT:
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1 (a) THE ABILITY TO BRING AN ACTION UNDER ANY STATE STATUTE
2 RELATING TO EMINENT DOMAIN OR THE EXERCISE OF EMINENT DOMAIN
3 POWERS BY THE STATE OR ANY LOCAL GOVERNMENTAL ENTITY IN
4 FURTHERANCE OF SECTION 15 OF ARTICLE II OF THE STATE CONSTITUTION,
5 NOR SHALL THESE PROVISIONS LIMIT ANY CLAIM FOR COMPENSATION OR
6 OTHER RELIEF UNDER ANY OTHER PROVISION OF LAW PROHIBITING THE
7 TAKING OR DAMAGING OF PRIVATE PROPERTY FOR PUBLIC OR PRIVATE USE.
8 (b) THE RIGHT OF AN OWNER OF PRIVATE PROPERTY TO FILE AN
9 ACTION FOR JUDICIAL REVIEW UNDER RULE 106(a)(4) OF THE COLORADO
10 RULES OF CIVIL PROCEDURE; EXCEPT THAT, IF A CLAIM UNDER THIS
11 SECTION IS NOT INCLUDED IN SUCH RULE 106(a)(4) ACTION, IT MAY BE
12 BROUGHT, IF AT ALL, ONLY BY AMENDMENT TO THE COMPLAINT IN THE
13 RULE 106(a)(4) ACTION. IF THE LOCAL GOVERNMENT HAS ANSWERED THE
14 RULE 106(a)(4) COMPLAINT, THE COURT MAY NOT DENY AMENDMENT OF
15 THE COMPLAINT TO ADD A CLAIM UNDER THIS SECTION UNLESS THE TIME
16 REQUIREMENTS OF PARAGRAPH (a) OF SUBSECTION (2) OF THIS SECTION
17 HAVE NOT BEEN MET.
18 29-20-205. Limitation - scope of part. NOTHING IN THIS PART 2
19 SHALL BE CONSTRUED TO AFFECT THE EXPRESSLY GRANTED LAND-USE
20 AUTHORITY OF ANY LOCAL [GOVERNMENT, INCLUDING, WITHOUT
21 LIMITATION, AUTHORITY GRANTED OR CONDITIONS IMPOSED UNDER
22 ARTICLE 65.1 OF TITLE 24, C.R.S.]
23 SECTION 2. Effective date. This act shall take effect July 1,
24 1999, and shall apply to actions of local governments taken on or after
25 said date.
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1 SECTION 3. Safety clause. The general assembly hereby finds,
2 determines, and declares that this act is necessary for the immediate
3 preservation of the public peace, health, and safety.