Opinion | Scott M. Estill: Not in my comfort zone
Challenges, Choices, Changes
Zoning. The mere mention of this word strikes fear in the hearts of conservatives today as a code word for another violation of our property rights. It means the government is taking away more of our right to do what we please with our land — another taking away of our freedoms. To add insult to injury, the government is not even complying with the Fifth Amendment prohibition that it cannot take private property for public use without compensating the landowner in the process.
Without getting into some complex legal analysis as lawyers are prone to do, the above positions do not work when it comes to zoning. As long as the zoning regulations have a relationship to the overall general public welfare (via health, safety, public interest or morals) and are not arbitrary in nature, they will be considered regulations and not a “taking” under the Constitution. Thus, no compensation to the landowner.
So where does this all fit in with today’s housing issues in Summit County and the need (or distaste) for some governmental control to offer public solutions? First and foremost, there is no real doubt that the county can limit, at least to some extent, short-term housing rentals via zoning. It could also change some zoning rules to permit higher-density housing or to accommodate other potential solutions to the lack of available housing for much of the workforce.
In general, zoning is a way to control the development of land by placing certain restrictions on the use of any given parcel of real estate. Summit County has a master plan, which sets goals for the future of the county. Within this plan, and the various regulations that developed as a result of the implementation of the plan, are many rules concerning the permitted uses of property (commercial, residential, agriculture, etc.) and the types of construction. For instance, there is a general maximum of 35 feet in height for buildings in Summit County. Of course, there are exceptions to this general rule, and builders can always apply for a variance from this requirement. These rules exist for a reason other than frustrating those who need to jump through the bureaucratic hoops to obtain a license or building permit.
Imagine downtown Breckenridge without any zoning. Instead of a quaint Main Street with shops and restaurants, it could have several multistory hotels and perhaps a 10-story condo complex facing Peak 8. How about an industrial complex next to your favorite Mexican restaurant or craft beer bar? A marijuana dispensary next to Summit High School? You get the idea.
Furthermore, simply because the county’s regulation causes a landowner to lose some revenue does not in and of itself require any compensation. For instance, there is a law in Colorado that requires a liquor store or other liquor license to be located more than 500 feet from a school. If I own property that is 499 feet from Summit High School, I cannot require the county to pay me for the lost revenue from not being able to operate this type of business on land that I own and should be free to do with what I wish. I am always free to sell the property and move on to some other land more suitable to my desired use.
To suggest that the private market should be free to operate without governmental restrictions in the housing arena misses the point that simply working hard and saving money in no way permits the average worker to live in Summit County, let alone actually own any property. When the private market does not work, it is up to the government to step in and offer solutions.
It is easy to second guess the planning commissions that come up with the rules and make decisions about how land can be used in our county. But their job can be nearly impossible given the usual competing (and vocal) interests with nearly every issue. Much like the tax credits I discussed in a previous column, the government does have a major role to play in being part of the solution to the problem. And the use of zoning should be a major player in using all the available pieces to ultimately fill in the puzzle and create a viable solution to narrowing the gap between the need for housing and the lack of available inventory.
Scott M. Estill’s column “Challenges, Choices, Changes” publishes biweekly on Thursdays in the Summit Daily News. Estill is an attorney, author and public speaker who lives in Dillon when not traveling or attending to legal matters in Denver. Contact him at email@example.com.
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