A Colorado land use bill is facing fierce opposition from mountain communities

Eagle County municipalities respond to ‘invasive’ bill introduced by governor and Democratic state leaders

Ali Longwell
Vail Daily

Colorado municipalities are scrambling to react to a sweeping land use bill introduced Wednesday, March 22, by Gov. Jared Polis and Democratic state lawmakers.

In Eagle County, local municipalities are expressing concerns that while the bill has the stated goal to address the state’s housing crisis, it will have the adverse effect, undermining the creative efforts and control of local towns and cities to address this crisis themselves.

“It’s really important for this community and all affected rural resort communities to understand: this is not going to help housing,” said Avon’s Town Manager Eric Heil at Avon’s Tuesday, March 28 Town Council meeting. “This is not going to generate any new housing or force any new housing to be built. There are such glaring errors.”

While the 106-page land use bill has the “goal to create more affordable housing, which is I’m sure a goal we can all agree to, it’s the specifics that are generating concerns from municipalities in the state of Colorado,” said Vail’s Town Manager Russ Forrest at a special Vail Town Council meeting on Thursday, March 30, to discuss the bill.

“It’s complex, it’s broad, and the interpretation of it continues to evolve and will continue to evolve,” Forrest said.

Generally speaking, the bill would impose substantial planning and mandatory land use regulations on municipalities across the state in an effort to increase residential density.

The bill addresses several broad topic areas including housing needs planning, accessory dwelling units, middle housing (a term for multi-family housing), transit-oriented development, key corridors, and adoption of model codes and minimum standards.

It would apply differently across the state based primarily on population size, with the bill creating four geographic classifications of municipalities. Both Vail and Avon would classify under “Rural Resort Job Center,” a designation under which 15 mountain communities that are all members of the Colorado Association of Ski Towns qualify.

Forrest called this application “uneven,” and “adds a level of complexity to it.”

With this, Heil added that this bill is “Front Range heavy.”

“It attempts to mandate upzoning to create more supply of housing,” Heil said. “That may work on the Front Range … but as we all know, and all the CAST communities know, more houses has nothing to do with affordability up here, because the free market price is priced at a luxury level and not really as tied into supply and demand as you might see in a Front Range municipality.”

Polis recently told The Colorado Sun that the bill represents the most ambitious land-use policy changes in Colorado in about 40 years.

Conversely, Heil told the Avon Town Council on Tuesday that he would characterize it “as the most invasive and intrusive legislation on local control that I’ve seen in my 30-year career.”

Mounting opposition

In the little over a week since the bill has been introduced, Colorado municipalities and cohorts have been scrambling to voice their opposition to this bill.

The Colorado Municipal League — of which Avon, Vail, Eagle, Gypsum, Minturn and Red Cliff are all members municipalities — is opposing the bill in its entirety, calling it “the most sweeping attempt in recent Colorado history to remove local control and home rule authority from elected leaders, professional planning staff, and the people of Colorado.”

The Colorado Association of Ski Towns — of which Avon and Vail are both members — is taking a slightly different approach, expressing support for some measures and opposition to others. This week, both the Avon and Vail town councils voted to approve a position statement drafted with 15 CAST partner communities that requests more time to provide input as well as express specific concerns with the legislation.

While CAST sent a letter on behalf of its independent board, some of the partner communities (including Vail) sent their own versions of the position, adding specifics about the work they’ve done toward the creation of affordable housing.

The position appeals to the governor, senator and representatives, pointing to the work Colorado’s rural resort communities have put into “aggressively” pursuing affordable housing.

“Through these efforts, they have built a deep and nuanced understanding of the interplay between market forces and the regulatory environment on affordable housing. It is our analysis that state-mandated upzoning in single-family neighborhoods will NOT result in any increase of workforce housing due to existing market conditions,” the position statement reads.

The letter gives five substantive recommendations for amendments to the bill. It expresses support for proceeding with statewide and regional housing needs assessments, authorizing accessory dwelling units as well as the formation of a Rural Resort Task Force comprised of the 15 communities, defining nine goals of that task force.

Even with broad support of these items, however, there are numerous questions and concerns that remain when it comes to certain details, definitions and nuances in the bill’s application. For example, even while the draft statement expresses support for authorizing accessory dwelling units, it requests allowing each community to retain authority and discretion in implementing regulations on those units.

Losing local control

However, the letter and communities are opposing one key component of the bill: “All land use regulation mandates proposed in the bill.”

At the center of this opposition is the concern that the bill as written would greatly restrict local control and ignore nuances between communities.

“There is an argument that this is a direct infringement on our right as a home-rule municipality, on its face,” Phillips said.

Vail, Avon, Eagle and Gypsum are all home-rule municipalities.

“Something like this coming from the legislature would be novel in Colorado as it relates to land use,” said Richard Peterson-Cremer, speaking as the Avon town attorney on Tuesday. “We’re analyzing some of these novel new legal issues that could arise from this bill and how they would interface with that existing history and tradition of local control and whether there could be some type of legal challenge to the proposed legislation.”

Stripping this control threatens “the self-determination, autonomy and rights of Home Rule Communities, and most importantly, the rights of representation of the citizens who live there,” said Jeremy Rietmann, Gypsum’s town manager.

“I’m not a lawyer, but I believe the bill has many questionable elements in terms of its legality,” Rietmann added.

Central to Rietmann’s concerns is the notion that “the bill shows a lack of trust in local municipal governments, which is harmful for society.”

“The bill would alter over 100 years of municipal authority over land use and zoning in Colorado and place state agencies in charge of regulating and enforcing decisions currently made at the local level,” he said. “It’s a vote of no confidence in local government and in citizens in having a say in how they would like their own neighborhoods and communities to develop.”

At this point, the bill’s mandates do not stipulate any application to counties. This means that communities like Edwards, which is part of unincorporated Eagle County, would not be subject to the bill’s mandates.

Jeff Shroll, the Eagle County manager, said that while local towns will be more affected than the county, the prospect is a scary one, adding that the bill “absolutely” encroaches on the rights of local municipalities.

“Local governments are uniquely capable of understanding the bigger picture of infrastructure availability (water, sewer, roads, parks, etc.). Having mandated density overlays when infrastructure may not be able to support is very concerning,” Shroll said. “While we appreciate the attention the governor’s office is giving to affordable housing, preempting local authority or proposing one-size-fits-all solutions does not have a very good track record in Colorado of ever working.”

Additionally, Shroll noted that this represents a statewide shift from a carrot (incentive) approach rather than a stick (penalizing) approach.

“The carrot and incentive approach is always a better motive to encourage collaboration,” he said. “The stick approach always bristles everyone to prepare for a fight. That is likely what is coming statewide.”

One of the ways that this shift from carrot to stick could happen is with the role of the Colorado Department of Local Affairs contemplated in the bill proposal. The bill, Forrest commented on Thursday, “grants very broad regulatory authority to DOLA,” an agency that in recent years has largely been involved in grant administration to encourage local municipalities to look at land use regulations and impediments as a way to gain resources for housing.

“This bill would really reorient this department into a regulatory enforcement department and really fundamentally change the mission of this department in terms of creating rule to implement this bill and also be an enforcement entity oriented toward municipalities to enforce the provisions in this bill,” Forrest said.

It’s expected that the bill would impose dates by which municipalities would be required to comply with these mandates, after which date a “model code” created by DOLA would automatically go into effect.

A large part of the concern with removing local control is that it negates the differences between communities.

“The frustration that we’ve all had in talking to the governor’s office is that we do a lot more, in a much more sophisticated way than the municipalities on the Front Range,” Heil said. “A lot more creativity, a lot more different programs, a lot more strategizing and what they are proposing — simply mandated upzoning to increase supply — just will not work up here. There is a real disconnect with the state legislature in understanding the mountain towns.”

In its letter, the town of Vail wrote that the bill “requires prescriptive solutions, which will inevitably create significant legal challenges.”

“Vail has and will continue to creatively pursue both policy and housing project initiatives to create more housing, which is in concert with our land use goals and community needs. This cannot be done from Denver,” it adds.

What kind of housing?

While the bill’s main goal is to address the housing crisis, there’s much debate over its effectiveness in rural resort communities.

Shroll said that while the bill would likely create housing, the question is whether it will be the “right housing.”

“There are no deed restrictions, price caps, resident-occupied requirements, etc.,” he added. “Are we just building more housing for second-home owners to Airbnb or are we creating affordable opportunities to those that need it?”

It’s a concern that Sen. Dylan Roberts shares as well.

“SB213 is a major bill that seeks to address our state’s housing crisis, primarily by incentivizing higher density, development by right, and transit-oriented development,” he wrote in a statement to the Vail Daily. “While I have no doubt that this bill will lead to more housing development, I have concerns that the legislation, as currently written, does not guarantee that new housing will be specifically targeted for low and middle-income individuals and families and meet our urgent workforce needs.”

Forrest said that mountain communities have experienced firsthand that “the only way to ensure affordable housing is through deed restrictions.”

“(The bill) certainly could have an impact on the supply of dwelling units in our communities, but it does not create affordable housing units,” Forrest said.

With that, there’s a concern that some language included in the bill might actually prohibit or prevent deed restrictions from occurring.

“A focus of a lot of the legal discussions is, with all these provisions a municipality cannot create ‘unreasonable costs’ or ‘delays in feasibility’ for the creation of these units,” Forrest said. “This wording is really leading some of the attorneys that are working on this to the conclusion of deed restrictions, DRB (design review board), even potentially life safety regulations could be precluded in the application of this.”

Impact to local water supply, resources

One other area of the bill that Vail and Avon expressed concerns with was language around water, wastewater and stormwater burdens.

According to an analysis from the Colorado Municipal League, “each zoning preemption allows a municipality to apply to DOLA for an unclear ‘extension of applicable requirements’ based on deficient water, sewer, or stormwater ‘services.’”

However, the bill doesn’t account for the burdens this would place on public infrastructure or services.

“It has language (and) terms thrown in this in the last 15 pages of the document — it’s like they just got tired drafting it and just threw language in — they have words like we’re going to work on growth management, we’re going to do something with drought management, Forrest said. “There’s ambiguous language, that if it was determined there was inadequate infrastructure, we would just have to do it.”

Jason Cowles, the director of engineering and water resources at Eagle River and Water Sanitation District, spoke at Vail’s Thursday meeting and commented that while the district is still trying to wrap its head around the bill and possible impacts, it could have large implications on affordability.

“A lot of single-family areas that would be targeted by this bill for increased density are generally served by small diameter sewer collection mains and smaller water storage tanks,” Cowles said. “Increases in density would likely drive the need to increase capacity on the existing infrastructure. Water supply issues, particularly in the authority and town of Avon would drive new water storage projects.”

Based on preliminary estimates, Cowles said there are “probably $300 million in improvements” that would be required just to accommodate the possible growth the bill would create. This — as well as the other regulatory mandates it would have to comply with per the bill — would lead to increased rates and tap fees, all passed onto end customers.

Still evaluating

While Vail and Avon join CAST’s collective effort, other local municipalities are still working to understand the bill and all its implications.  

Larry Pardee, Eagle’s Town Manager, said that while the topic dominated conversation at this week’s Eagle County managers meeting, the town itself is currently “quietly reviewing and talking about it, trying to understand what the current and future impacts will or will not be.”

“There was a couple of portions that may be positive — the planning side of it, I think we’d probably all support,” Pardee said. “It’s the other side of it — taking away local control and say around land use planning — we need to better understand.”

However, Pardee added that “from a macro point of view, just having legislation at the state Capitol that has impacts on local control, local say and zoning is concerning.”

Still, the town is working to evaluate what the requirements and mandates could mean for Eagle before it makes any official stance.

“We’re going to be watching it closely,” Pardee said. “We all want to do the right thing, but it’s going to take us all time to work through this.”

Similarly, Shroll said that the county is still working to dig into the complete details.

Moving too quick

In addition to specific concerns about the bill’s language, local municipalities expressed large concern over the bill’s current momentum. Amy Phillips, Avon’s Mayor, summarized the bill on Tuesday as “complicated, ambitious, and moving very, very swiftly.”

Heil commented on Tuesday that with the bill introduced by the governor’s office and sponsored by the majority leader of the Senate and co-majority leader of the House of Representatives, it is “queued up to have all the political support already secured to be able to ensure that this bill is going to be passed.”

“The thinking is that simply opposing the legislation and saying it shouldn’t be adopted is unlikely to be successful with the pretty clear political momentum and alignment this has,” Heil said, later adding that “the thought is that there is a lot of pressure, that the governor wants to respond to housing and wants to do something bold, and they’re jumping off the cliff on this one.”

Thus, the first thing the draft position from the Colorado Association of Ski Towns does is to ask for more time to work with legislators and the governor’s office on the bill.

Currently, the bill is set to appear before the Senate Local Government and Housing Committee — of which Roberts is a member — on Tuesday, April 4. The CAST letter requests for it to be pushed to later in April “to allow a reasonable amount of time for review, consideration, and constructive feedback.”

“While I appreciate the goal of this bill, I have concerns about some of its provisions and how they would particularly impact rural resort communities,” Roberts said.

As the bill comes before the committee, Roberts said he is “directly engaging the bill sponsors, the Governor’s Office, and the communities I represent to craft amendments to the bill that will alleviate these concerns.”

“We desperately need more housing, but we need to do it the right way for each community’s needs, and I am hopeful we can get this bill to a place where both goals are accomplished,” Roberts said.

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