Colorado Governor Jared Polis and Democrats in the state legislature have decided that the housing affordability crisis in Colorado is the fault of local municipal zoning laws. Having come to that conclusion, their solution for the perceived problem is Senate Bill 23-213, a breathtaking usurpation of control of local land use by the State. The bill would impose top-down State land use standards that would essentially deprive local citizens of any meaningful input into the land use practices that directly impact their quality of life.
Here are just a few of the provisions in this 100-plus pages of legislation.
Accessory Dwelling Units (ADUs) will be a use as-of-right in every zone that allows single family residential housing, overriding existing covenants and deed restrictions. Regardless of the neighborhood, the ADU can be a manufactured or modular unit and the occupancy cannot be limited by number or relationship to the homeowners.
“Middle housing,” including townhomes, duplexes, triplexes (up to sixplexes) will also be a use as-of-right in any single-family residential zone, without any consideration of compatibility, minimum lot sizes, setbacks, and with no requirement for off-street parking. The legislation would also require multifamily development as-of-right in “key corridors,” which are areas where there is frequent transit service within a quarter of a mile. Again, there would be no requirement of compatibility with surrounding uses and no off-street parking requirement.
The Colorado Department of Local Affairs, an historically small bureaucracy with a mission to assist local governments in carrying out their functions, will now become a large bureaucracy charged with regulating and enforcing the state-imposed land use standards.
As Mayor of Colorado Springs, my vehement opposition to this power grab by the State stems from my extensive experience in both state and local government. First, it’s my conviction that, to the extent government has contributed to increases in housing costs in Colorado, the State is the primary culprit. Ever wonder why no one builds condominiums in Colorado? Condos are a popular housing type that would be more affordable than single family residences for many of our citizens. But the governor and the legislature continue to kowtow to trial lawyers by retaining construction defect legislation that makes condominium construction economically unfeasible.
The legislature has also been enamored with statewide building and energy codes that significantly drive-up housing costs. They are currently considering a statewide code for construction in the wildland urban interface. And many of our legislators are captivated by rent control, which every graduate of Economics 101 knows drives up non-controlled rents and deters multifamily construction.
I’m also insulted by the notion that local government officials are too stupid to address housing affordability issues and only our benevolent governor and legislature have the necessary wisdom. While the State has been consistently pursuing a regulatory environment that has increased housing costs, many local governments have been seeking and implementing solutions.
In Colorado Springs, we have dramatically increased our construction of affordable housing units over the past eight years, and we have worked hard to make our land use codes more flexible and encourage a broader range of housing options. Plan COS was a multiyear project with significant citizen participation. It is a visionary document that promotes greater density and more housing types. Our City Council recently passed Retool COS, which is the culmination of a three-year effort which incorporates feedback from dozens of community meetings. It enacts changes to our land use code that allows for implementation of PlanCOS. Now, belatedly, the governor and legislature have decided they can do a better job. Count me very skeptical.
The state legislation will render local citizens voiceless in land use matters that directly impact their neighborhoods and their quality of life. No longer will citizens be able to go to elected City officials and have a meaningful impact on land use decisions. Now, they’ll simply be informed that the land use they’re concerned about is dictated by State law. In my experience, most citizens have a higher level of confidence in local government to hear their concerns than their federal and state government. Local government truly is the government closest to the people. The state mandated scheme will simply exacerbate the decline in public trust in government.
As a lawyer, I also see a serious state constitutional issue at play. The state constitution recognizes “home rule” cities and gives them greater autonomy over their affairs than statutory cities and towns. Apparently, the governor and legislature believe they can negate the power of home rule cities to do local land use planning by simply declaring this a matter of “statewide concern.” I believe that Colorado Springs and other home rule cities can make a very cogent argument to state courts that what our local neighborhoods look like is more an issue of local concern than statewide concern. I predict a period of long and contentious litigation if SB 23-213 becomes law.
It's important to note that nothing in this sweeping legislation assures Colorado residents that it will have a positive impact on housing affordability. My experience with government regulatory schemes tells me the opposite will occur. The legislation cannot be implemented without creating a greater regulatory overlay for state and local government and these regulatory costs will ultimately be born by developers and passed onto the consumers of housing. The law of unintended consequences will triumph here, as it does so often.
Every concerned citizen and homeowners’ association in Colorado should educate themselves on SB 23-213 and contact the governor and state legislature to let them know they want local government, and not the state government, to decide what their neighborhood and their city looks like.