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Denver and Colorado Zoning and Land Use Attorney

Navigating zoning laws, zoning regulations, land use laws, and land use issues can be a difficult task in dealing with local governments in Denver and Colorado. Accordingly, retaining a qualified Denver or Colorado land use and zoning attorney can significantly help in the process.

In particular, dealing with land use and zoning issues can involve having to review, parse through, and compare multiple layers of legal authorities regulate land use. For example, zoning, rezoning, and land use decisions in the City and County of Denver are governed by multiple different legal authorities that determine how and under what circumstances Denver can make such decisions. Those various legal authorities include:

– The Denver city charter

– Denver’s municipal code

– Denver’s zoning code

– Denver’s zoning map

– Denver’s comprehensive plan

– And design guidelines for individual neighborhoods promulgated by Denver.

In addition to these city level legal authorities, Colorado has state statutes that govern land use and zoning decisions by local governments as well. Those state statutes contain, for example, requirements that zoning decisions be made in conformance with an adopted comprehensive plan and requirements that notice and a public hearing be given before certain zoning decision can be made. However, these state statutes set forth only base requirements for land use and zoning decisions and those requirements may be superseded or altered by charter or by local ordinance. See C.R.S § 31-102 (indicating statutory requirements may be altered by charter); C.R.S. §§ 31-23-301, et seq. (statutes setting forth base zoning and land use requirements and procedures).

Altogether, the review of applicable legal authorities can be voluminous as, individually, each legal authority can number in the hundreds of pages. Taken together, they can number in the thousands of pages. Further, the interrelation of the numerous legal authorities results in different hierarchies with legal authorities lower on the hierarchy giving way to legal authorities higher on the hierarchy.

In particular, if Denver wanted to rezone properties within the city, the process for a rezoning is generally set forth in Denver’s zoning code. The zoning code also includes the various different zoning categories those properties could be rezoned to. In implementing a rezoning, the city would start with the procedures and requirements in Denver’s zoning code.

However, the rezoning would also have to comply with the rights and procedures of higher-level legal authorities, such as the Denver charter, state laws, and federal law. If the rezoning is not done in accordance with these legal authorities, then it could be deemed invalid by the courts. Accordingly, challenging a use of zoning or land use powers often starts with reviewing these authorities which can be a dense task and may requires the assistance of a land use or zoning attorney.

 

Background of Zoning and Land Use Laws

In assessing whether a use of land use or zoning powers is properly exercised, it is important to consider the background and legal precedent from which those powers derive. The authority for local governments to implement zoning and land use laws stems back to the early 1900s when cities in the U.S. began implementing them to control urban growth. Affected property owners facing unwanted restrictions on their property rights – as zoning and land use laws limit what one may do with his or her property – began challenging the ability of local governments to adopt and implement such laws and regulations.

Specifically, affected property owners asserted that local governments did not have authority to impose zoning and land use restrictions, asserted that doing so violated their Fourteenth Amendment constitutional rights to due process and equal protection, and asserted that imposing such regulations resulted in an unconstitutional taking of their property.

Eventually, these arguments wound their way up to the U.S. Supreme Court and, in the 1926 seminal zoning case Euclid v. Ambler Co., 272 U.S. 365 (1926), these issues were put to bed. Recognizing that, zoning and land use regulations are a necessity for dealing with the problems arising from population and city growth, the U.S. Supreme Court rejected the landowners’ arguments; found that local governments may impose such regulations in furtherance of their general police powers; and, as a result, found that such regulations are not per se violations of constitutional rights nor do they constitute unconstitutional takings.

As discussed by the U.S. Supreme Court in Euclid, police powers are the powers reserved to the states, and by implication local governments within a state, to regulate behavior and conduct within their territory to promote the health, safety, morals, and general welfare of their inhabitants. In short, police powers are the inherent ability of local governments to adopt and implement laws that are designed to promote public health and safety. See Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996).  

Thus, the U.S. Supreme Court recognized that restricting certain property uses and types of buildings to certain areas of a city has a rational basis to promoting the health and safety of the community. For example, there are significant public health and safety interests in ensuring industrial buildings and factories are not built in close proximity to residential areas. Accordingly, the Court held that where adopted land use and zoning laws are rationally related to such public health interests, they will be upheld as valid exercises of a local government’s police power.

Since Euclid, courts across the country, including Colorado courts, have adopted this rationale and characterize zoning laws and regulations adopted by counties, cities, municipalities, and towns as exercises of police powers.  See Colby v. Board of Adjustment, 255 P. 443 (Colo. 1927) (opining Colorado courts shall “follow the Euclid decision” in addressing a challenge to the adoption of a comprehensive zoning ordinance); City of Colorado Springs v. Securcare Self Storage, Inc., 10 P.3d 1244 (Colo.2000).

However, while the U.S. Supreme Court found in Euclid that local governments have the authority to pass land use and zoning laws pursuant to their police powers, that does not mean the adoption of such land use and zoning laws, and decisions made under those laws, are not challengeable.

 

Challenging Land Use and Zoning Laws and Decisions

In particular, Euclid found that so long as there is a rational basis between the challenged zoning or land use law or decision, and the public welfare then it constitutes a valid exercise of police power. However, if a zoning or land use law or decision has no connection to the public welfare then it is not a valid exercise of police powers and will be invalidated as an arbitrary and capricious use of governmental powers. See Euclid v. Ambler Co., 272 U.S. 395 (1926); Hedgcock v. People ex rel. Reed, 13 P.3d 264 (Colo. 1932) (finding the denial of a building permit and enforcement of a zoning permit governing building setbacks to be arbitrary and capricious because it had not been consistently enforced).

Importantly though, invalidating a zoning or land use law or decision based on it being arbitrary and capricious is difficult. In general, zoning and land use laws are presumed to be valid and, thus, the party challenging such a law or a zoning decision has the burden of overcoming that presumption of validity. In effect, the zoning law or decision must have no connection at all to a legitimate purpose in order to be invalidated as an improper use of government poers. Where the connection of a zoning ordinance or decision to the public welfare is fairly debatable then it will be upheld. That is, if there is even a single credible argument that the land use law or decision is in the interest of the public welfare then it will be upheld, a very low burden to meet. See Baum v. City and County of Denver, 363 P.2d 688 (Colo. 1961).  

Examples of scenarios where a use of land use of zoning powers is not a proper exercise of police powers include where the land use regulation or decision was adopted solely to increase the value of a particular property. Such a decision does not have a sufficient connection to promoting the general public welfare; is only focused on increasing private wealth; and, as a result, has been held to be an arbitrary and capricious use of governmental power. See City and County of Denver v. American Oil Co., 374 P.2d 357 (Colo. 1962

 Similarly, if a zoning regulation of decision infringes on fundamental constitutional rights or creates a suspect-class, such as targeting or disproportionately affecting a particular race, then it will be subject to higher scrutiny. In such instances there must be more than a simple rational basis for the law or regulation and, if the government cannot articulate one, then it also may be struck down as an improper use of government powers. See Zavala v. City and County of Denver, 759 P.2d 664 (Colo. 1988).

In addition to challenging the basis for a local government’s zoning law or decision – that is, whether or not the law or decisions was sufficiently related to promoting the public welfare – land use laws and decisions may be challenged on other grounds as well. These include, by way of example:

– Challenges that the land use law or decision was not adopted pursuant to or circumvented required procedures, be it those present in state statutes, a city charter, or city code. See Native Am. Rights Fund v. City of Boulder, 97 P.3d 283 (Colo. App. 2004).

– Challenges that the zoning law or decision constitutes spot zoning. That is, that the law or decision was made purely to relieve a particular property from the restrictions of certain zoning regulations and was not made for the purpose of furthering a comprehensive zoning plan. See Whitelaw v. Denver City Council, 405 P.3d 433 (Colo. App. 2017).

– Challenges that the land use law or decision constitutes contract zoning. An illegal practice whereby a property is rezoned to a zoning classification with fewer restrictions but the zoning body requires an agreement with the property owner that the owner abide by certain conditions or limitations imposed on the same property. In effect, a practice whereby zoning or land use regulations are imposed by contract as opposed to through the normal rezoning processes. See Ford Leasing Development Co. v. Board of County Com’rs of Jefferson County, 528 P.2d 237 (Colo. 1974).

– Challenges that the zoning law or decision infringes upon vested property rights or takes away previously approved rights, especially where a property owner has expended money or resources in reliance on that approval. For example, expending money to develop a property for a certain, already approved use only to have a city subsequently declare that use unallowable. See Hartley v. City of Colorado Springs, 764 P.2d 1216 (Colo. 1988).  

– Challenges that a zoning ordinance or land use regulation is unconstitutionally vague or improperly delegates legislative authority. For example, improper delegating legislative authority to a zoning administrative official to declare certain property uses invalid. See Holcomb v. City and County of Denver, 606 P.2d 858 (Colo. 1980).

– Challenges that the zoning or land use governing body misapplied or misinterpreted the laws or regulations in adopting or applying them. See Sierra Club v. Billingsley, 166 P.3d 309 (Colo. App. 2007).

– And challenging that a city or other local government body erred in applying relevant factors in adopting a land use regulation or making a land use decision, such as whether the character of a neighborhood had changed and was appropriate for a rezoning. See IBC Denver II v. Wheat Ridge, 183 P.3d 714 (Colo. App. 2008).

Importantly, when challenging a local government’s zoning or land use decision based on underlying factual findings of that government body, the no competent evidence standard applies. That is, local governments have wide discretion in interpreting and making factual findings and courts will not overturn that judgment unless there is no competent evidence to support those factual findings. See Board of County Com’rs of Jefferson County v. Simmons, 494 P.2d 85 (Colo. 1972).

Finally, even where a zoning law or decision is valid or otherwise upheld, property owners may still have rights that allow them to protect their property rights. For example, property owners may still have an unconstitutional taking claim that, although the zoning law or decision is left in place, they are entitled to compensation from the government for the taking of their property rights.

However, takings claims are difficult to prevail on as they require that property owners demonstrate the zoning or land use regulation deprived him or her of all reasonable use of the property, as opposed to simply made the property less valuable. In effect, a takings claim requires a showing that the property was functionally taken away from them by diminishing its value or use to close to nothing. Regulatory actions that simply decrease the number of available uses of a property, but still allow the property some legitimate uses, will typically not rise to the level of a takings claim. See Animas Valley Sand and Gravel, Inc. v. Board of County Com’rs of County of La Plata, 38 P.3d 59 (Colo. 2001).

© 2020 J.D. Porter, LLC. Denver, Colorado.

Disclaimer: The information on this website is intended to be general information only and not legal advice. Laws change frequently and the information on this website may not be up to date, nor is the information intended to be fully comprehensive. For legal advice specific to your case please contact J.D. Porter, LLC or another licensed attorney.