Can a Colorado “municipality” (which includes any city or town) pass a local ordinance that contradicts a state law? The answer: It depends.

With a few exceptions, Colorado recognizes two “classes” of municipality depending on how they were formed: “statutory” and “home-rule.” Statutory municipalities include: Blue River, Fairplay, Eagle and Leadville. Home-rule municipalities include: Breckenridge, Frisco, Silverthorne, Dillon and Vail. Some areas are not incorporated as separate municipalities at all – they have no power to pass local ordinances, and their affairs are largely controlled by the state and county governments. These unincorporated areas include: Keystone, Heeney, Eagle-Vail, Evergreen, Edwards and Beaver Creek.

The powers that can be exercised by a municipality depend on the class to which it belongs. Statutory municipalities possess only those powers expressly granted to them by the state Legislature or that naturally flow from granted powers. A statutory municipality has no authority to pass an ordinance that contradicts state law.

Home-rule municipalities have all the powers granted to statutory municipalities and, in addition, all the powers granted by Article XX of the Colorado Constitution. As a practical matter, this means home-rule municipalities have the same power over their own local affairs as the state government has over statewide affairs.

So, in order to determine whether a given home-rule ordinance is enforceable, it must first be determined whether the subject of the ordinance is a matter of: (1) local concern; (2) statewide concern; or (3) mixed state and local concern. The courts make this determination on a case-by-case basis. Once a court decides into which category the subject of the ordinance fits, it then applies the following rules:

• Matters of statewide concern: The state Legislature has supreme authority. Home-rule municipalities have no power to legislate unless authorized by state law.

• Matters of local concern: Both home-rule municipalities and the state have the power to legislate. However, if a home-rule ordinance conflicts with a state statute, the home-rule provision supersedes the conflicting state provision.

• Matters of mixed state and local concern: Both home-rule municipalities and the state have the power to legislate. However, if a home-rule ordinance conflicts with a state statute, the state statute supersedes the conflicting home-rule provision.

An illustrative case involved an ordinance adopted by the town of Telluride with the intention of making properties affordable for rent by local workers. The ordinance required property owners to create affordable housing for 40 percent of the employees generated by new development, restricted allowed rental rates, and limited the growth of rental rates. A developer challenged the ordinance arguing that it contradicted a state statute prohibiting rent control. The court decided that the issue of rent control was a matter of mixed state and local concern because it had broad repercussions outside the town limits. It then determined that the Telluride ordinance conflicted with the state statute and it held the ordinance to be invalid.

Another high-profile case involved a law passed by the state Legislature in 2003 declaring control of firearms to be a state interest and seeking to preempt conflicting local ordinances. After Denver challenged the amendment as an intrusion on its power over local affairs, the court found that some of Denver’s firearms ordinances were superseded by the state law – and some were not.

More locally, the town of Dillon will likely consider the extent of its home-rule powers as it weighs whether or not to allow medical marijuana dispensaries (which are permitted by state law) within the town limits.

The recent trend appears to be for courts to find more and more subjects to be matters of statewide concern, thereby whittling away the power of home-rule municipalities. It will be interesting to observe if this trend continues.

Noah Klug recently opened a general law practice in Summit County

emphasizing real estate, commercial law and litigation. He may be reached at (970) 409-9345 or Noah@TheKlugLawFirm.com.

Corrects earlier version that mistakenly identified Montezuma as unincorporated. It’s a statutory municipality.