AUDUBON OF COLORADO

Legislative report special session 2

October 15, 2001

Jo Evans, Jen Boulton

The legislature met from September 20 to October 10 to consider primarily growth and redistricting issues. We had hoped that the legislature would pass legislation requiring cities and counties above a threshold size to adopt comprehensive plans that included an explicit environmental quality element. We wanted the plans to be enforceable, and we hoped to include a provision requiring that urban level development would be concentrated in urban areas.  We did not achieve this minimal step.

The legislature considered 34 growth bills in the 3-week session. We monitored them all, actively opposing 6, and supporting 8. Much time was spent on adding or removing amendments. Of the bills we strongly supported, none passed. Of those we strongly opposed, 1 passed. Others were mooted or failed.

On balance, the legislature’s time would have been better spent elsewhere.

HOUSE BILLS

HB1001 Property Owners Adjacent to Annexation

(Kester, Phillips)

Status: Passed

Position: FYI

“Flagpole” annexation refers to the use of a platted street, alley, or right of way to meet the contiguity requirements in the current annexation statute. HB1001 requires that cities offer to include property that is adjacent to the “flagpole”. Property owners may elect to join the annexation or not.

HB1001 passed both chambers. It still needs the Governor’s signature.

HB1002 Smart Growth Grants

(Coleman, Hernandez)

Status: DEAD

Position: FYI

HB1002 would have expanded the authority of the director of the Office of Smart Growth to award grants to assist local governments in the development of a master plan. The bill would have repealed the existing 30% cap on the amount of money in the Colorado Heritage Communities fund that may be used in such grants. The bill also appropriated $1.5M from the Colorado Heritage Communities fund to award such grants.

HB1002 died in the House Local Government committee when the September revenue projections indicated a significant shortfall in state general funds.

HB1006 Mandatory Local Government Master Plans

(Stengel, Perlmutter)

Status: Passed

Position: FYI

HB1006 requires that counties with a population of more than 100,000, counties of 10,000 or more with a growth rate of 10% over any five year period ending in 1999 or later, and cities of 2000 or more located within affected counties, must adopt a master plan within two years if they don’t already have one. As introduced, there were no required elements in the plan.

The Senate increased the bill’s applicability to 4 additional counties, Pitkin, Clear Creek, Gilpin, and Morgan. Senator Hagedorn added a recreational tourism element to the plan. . The House concurred with the Senate amendments. At this time, recreational tourism is the only required element in local government master plans.

Interestingly enough, although in tortuously complex and unclear language, the recreational element may offer some opportunities to secure environmental benefits in local master plans. The proposed new law says that master plans

…shall contain a recreational and tourism uses element pursuant to which the local government shall indicate how it intends to provide for the recreational and tourism needs of its residents and visitors through delineated areas dedicated to, without limitation, hiking, mountain biking, rock climbing, skiing, cross country skiing, rafting, fishing, boating, hunting, and shooting, or any other form of sports or other recreational activity as applicable, and commercial facilities supporting such uses.

For example, wildlife habitat protections can be sought through asserting that watchable wildlife is a recreational pursuit currently enjoyed by many enthusiasts. The other side of the coin, of course, is “commercial facilities supporting such uses” (e.g. ski resort expansions). Still, no one use trumps another under the language. The plan has to address recreational pursuits. Locally, conservationists will need to get involved in the formation of the plans.

HB1006 has passed both chambers and is waiting for the Governor’s signature.

HB1007 Water Requirements for Growth

(Hodge)

Status: DEAD

Position: Support

HB1007 required that local governments include a water element in their master plans. The water element had to address the “location and extent” of an adequate supply of water. The bill required that zoning ordinances specify minimum water needs. Finally, the bill required that future well permits be based on an aquifer life of 300 years rather than 100 years. The bill was killed on a 4-7 vote in House Agriculture.

Voting yes: Reps Chavez, Groff, Hodge, and Saliman

Voting no: Reps. Alexander, Miller, Rippy, Snook, Spradley, Webster, and Hoppe

HB1008 Open Space in Some Master Plans

(Daniel)

Status: DEAD

Position: Support

HB1008 required that counties over a threshold size include an open space element in their master plans. The bill specified that the open space element would include a “strategy for the protection of open space within the unincorporated areas of the county”. HB1008 died on a 4-7 vote in the House Agriculture committee.

Voting yes: Reps. Chavez, Groff, Hodge, and Saliman

Voting no: Reps. Alexander, Miller, Rippy, Snook, Spradley, Webster, and Hoppe.

HB1009 School Capital Construction Impact Fees

(Vigil)

Status: DEAD

Position: Support

HB1009 would have allowed local governments to enact subdivision regulations that included imposition of impact fees or similar development charges for the capital construction of school facilities. The fees collected would have been directly related to and reasonably necessary to serve the proposed subdivision and its future residents.

HB1009 was killed in the House Business Affairs and Labor

*HB1010 Regional Planning Agreement

(Mace, Hernandez)

Status:  DEAD

Position: Oppose amendments restricting environmental protections

HB1010 required local governments, which are or become members of DRCOG to adopt a regional planning agreement by July 1, 2003. The bill specified that 2/3 of counties, 2/3 of cities, and 2/3 total population approve the agreement in order for it to be adopted. The agreement had to be reviewed every 5 years. The bill specified elements of the agreement, including transportation, land use, housing, utility facilities, and environmental quality elements. As introduced, the environmental quality element said only that the agreement must address strategies related to air and water quality and flood control. On second reading, the House added an amendment offered by Rep Mace that prohibited any environmental regulation that exceeded state or federal regulations.

Neither state nor federal laws address land use. The net effect of the amendment would be to preclude local environmental regulation in the DRCOG region.

HB1010 passed the House.

The Senate Public Policy Committee removed the environmentally restrictive language that was added in the House. Sen. Perlmutter replaced it with language stating that the bill neither enhanced nor diminished existing authority of local governments with respect to environmental regulation. Sen. Matsunaka added language clarifying that local government plans could be more stringent that the regional plan. On the Senate Floor, Sens. Hernandez and Anderson struck the environmental quality element in its entirety. The Senate Dems then voted to kill the bill. In order to revive his bill, Sen. Hernandez re-instated the environmental quality element. The bill then passed second reading, but died on a 16-18 vote on third reading.

HB1011 Comprehensive Land Use Planning

(Stengel)

Status: DEAD

Position: Oppose

HB1011 was taken from HB1225 from the main session. It specified several elements including land use, water and wastewater, housing, transportation, neighboring communities, open space and agricultural land, environmental quality, essential urban services, and mineral preservation. While we support environmental planning, HB1011 contained several provisions that we strongly oppose. For example, the open space element included a requirement that the local government compensate a landowner for any land that was designated as open space and agricultural land. Such a provision is a major disincentive to planning for open space. If a local government can not, prospectively, plan for future open space without writing a check, no one will plan for open space. HB1011 also included language prohibiting a local government from ever saying, “we’re full.” There could not be any limitation on housing construction. Finally, HB1011 imposed a “takings” standard for any impact fees.

HB1011 was killed in the House Local Government.

*HB1019 Local Government Master Plans

(Scott, Tate)

Status: Dead

Position: Oppose

While we strongly believe that comprehensive master plans must be enforceable, we could not support HB1019 as written. HB1019 said that master plans have the force of law and that the plans can not impair property rights or vested rights. Since any land use regulation could be argued to impact property rights, the bill was at best confusing. At worst, it was unconscionable. Since the plans did not constitute rezoning, even a visionary statement planning for future open space would be argued to impair future land uses and require compensation. No one would be likely to plan for open space.

HB1019 limited the ability of local governments to regulate the use of private property for the public interest in ways not currently required by constitution or law. Please note environmental group fact sheet at the end of this report.

Representatives Plant and Weddig attempted to fix HB1019 on the House floor. We supported their efforts, but both amendments failed.

In Senate Public Policy, Sen. Tate successfully amended HB1019 to address our objections. On the Senate floor, planning elements were also added. We supported the inclusion of elements in the planning process, although we did not support inclusion of a takings assessment as a prerequisite to identifying environmentally critical and sensitive areas. Multiple attempts were made to remove some or all of the elements, but the fundamental problem was the developers’ insistence that the bill must push takings law and property rights at the expense of local control and environmental protections. Ultimately, the House refused to compromise on the bill, insisting that it pass in the form that we opposed. At the eleventh hour, the Senate voted 16-16 against accepting the House version, and the bill died.

HB1020 Master Plan Dispute Resolution

(Madden, Teck)

Status: Passed

Position: FYI

HB1020 authorizes local governments to resolve disputes involving master plans in any manner to which they both agree. Any neighboring community may require mediation. The party requesting mediation must pay for the mediation costs. Mediation is not binding.

*HB1032 Changes to the Master Planning Process

(Smith)

Status: DEAD

Position: Support

HB1032 was identical to HB1305 from the main session. It required local governments over a threshold size to adopt enforceable comprehensive plans addressing: land use, water and sanitation, transportation, essential services, urban service areas, and environmental quality. The environmental quality element specifically included wildlife habitat and declining species, water quality, wetlands and riparian areas

Within 2 years, the local governments had to adopt specific rules and regulations to implement the master plans.

Unfortunately the bill died on a 3-6 vote in the House State Affairs committee.

Voting yes: Reps. Daniel, Marshall, and Vigil

Voting no: Reps: Cadman, Garcia, King, Nunez, Schultheiss, and Sinclair

Senate Bills

SB001 Smart Growth Incentives

(Matsunaka, Smith)

Status: DEAD

Position: FYI

SB001 authorized local governments to implement incentives for encouraging smart growth. Incentives could have included reduction or elimination of impact fees, streamlined or accelerated development application processes, and increases in density.  Originally  “smart growth” specifically included, but was not limited to, affordable housing, preservation of open space or areas with significant wildlife habitat, conservation of energy, water, and natural resources, and development of multi-modal transportation. On the Senate floor the sponsor removed “significant wildlife habitat” from the specified smart growth elements.

SB001 passed the Senate but was killed in the House Local Government Committee.

SB002 Development Impact Fees

(Owen, Webster)

Status: DEAD

Position: Oppose

SB002 confused impact fees with exactions, raising the question of an unwarranted takings standard for impact fees. The bill would have would have constituted a step backwards for home rule cities that have greater authority under existing law than under SB002. 

SB002 was killed on a 3-4 vote in the Senate Public Policy committee.

SB004 Mandatory Master Planning

(Perlmutter, Smith)

Status: DEAD

Position: Tepid Support

SB004 required some local governments to adopt master plans with specific elements. There were strong requirements for notice prior to adoption or amendment of the plan. Required elements included land use, water and sanitation, transportation, essential services, a strong and explicit, environmental quality element, emergency preparedness, and recreational tourism. In response to concerns of property rights advocates, the bill was amended to require a takings assessment in connection with establishment of critical or sensitive environmental areas.

The bill required master plans to be implemented through land use regulations within two years after adoption of the plan

In the House Ag Committee, Rep Smith attempted to amend the bill to mirror HB1032. The committee concurred, and then killed the bill.

SB005 Intergovernmental Cooperation in Annexation

(Phillips, Tapia)

Status: DEAD

Position: Support

SB005 allowed cities to include annexation provisions in intergovernmental agreements. The bill also provided that the statutory requirement for contiguity was not met unless the area proposed for annexation had been included in the annexing city’s master plan boundary for at least one year. Finally the bill established criteria for “flagpole” annexations.

SB005 was killed in the House Local Government Committee.

*SB006 Mineral and Energy Deposit Conservation

(Perlmutter, Grossman)

Status: DEAD

Position: Oppose

Severance tax was created as a means to mitigate the impacts of severing minerals from the land. SB006 used severance tax to insure that land will be kept available to sever minerals from the land.

SB006 would have created the mineral and energy resources conservation fund using severance tax dollars. The money in the new fund would have been used to award grants to people to preserve land in a state suitable for mineral and energy development for at least twenty years. The theory, apparently, was that land suitable for oil and gas development was “open” so preserving land for mineral and gas exploration was a clear public benefit.

Land that is undergoing oil and gas drilling or exploration may not be suitable wildlife habitat due to increased human presence and activity. Such land is also not available for recreation purposes since it remains in private ownership. Finally, the dollars are expended for short-term benefits. We have never supported public funding for short-term conservation easements.

SB006 passed the Senate 19-16 but failed to garner a single vote in the House Ag Committee.

SB011 Open Space for Future Generations

(Evans, Young)

Status: DEAD

Position: FYI

SB011 allowed property owners to maintain an agricultural property tax classification if the land was subject to an easement that was granted to preserve scenic corridors, wildlife corridors, or other open space values for a 20-year term. The bill specified that if any portion of the land was used for nonagricultural residential or commercial purposes, the agricultural classification could not be maintained for that portion of the property.

SB011 was killed in the Senate Business, Labor, and Finance committee.

*SB015 Impact Fees

(Hernandez, Mace)

Status: Passed

Position: Oppose

The bill as introduced provided a mechanism to allow statutory cities and counties to assess impact fees under the same legal framework that already applied to home rule cities. Unfortunately, we must oppose SB015 as amended and passed. 

While we continue to believe that growth should pay its own way and generally support impact fees as necessary tools to accomplish this, SB015, as passed is a step backwards from existing law. It restricts the existing authority of home rule cities,  while minimally expanding  the ability of counties, to assess impact for some capital facilities.  Is open space a “capital facility?”  Currently many home rule cities use impact fees to defray costs for open space.   The bill does not allow impact fees to be assessed to defray the cost of providing schools.

A totally unrelated and unacceptable provision expands existing takings law, making the bill which we fought and lost in 2000 even worse. SB015 also blurs the line between “taking property” and requiring impact fees.

The amended version of the bill was strongly supported by development interests. Colorado Municipal League and environmental interests opposed it. All attempts to clarify the terms of the bill were defeated.

On the House floor, Rep Jameson attempted to remove the takings language. Rep. Plant

attempted to exempt home rule cities from having their existing authority reduced. Both efforts failed. Rep. Grossman and Rep Smith argued eloquently for legal clarity and common sense. Rep. Mitchell said pointedly, that he supported SB015 because he opposed impact fees. A succinct statement to ponder.

SB019 Home Seller Disclosure Regarding Aquifer

(Gordon)

Status: DEAD

Position: Support

SB019 required sellers of residences with private wells for a water supply to disclose whether the aquifer in which the residence’s well was located was being depleted faster than it was being renewed. The disclosure would have been required at or before closing. If disclosure was not made, the bill provided that the buyer could claim relief from the seller for all damages arising from the lack of disclosure.

SB019 was killed at the sponsor’s request in the Senate Agriculture committee.

*SCR001 Colorado Crown Jewels Legacy Program

(FitzGerald)

Status: DEAD

Position: Support

SCR001 requested the voters of the State to authorize retention of up to $50M each year of surplus revenue for the purpose of financing the “Crown Jewels Legacy” program. The “Crown Jewels Legacy” program was intended to assist private interests, nonprofit groups and public agencies to develop cooperative efforts to protect “the scenic beauty, open vistas, and environment of Colorado’s ranches, farms, open spaces, river corridors, and urban open lands.” The program would have funded efforts to acquire land, or interests in land, and water rights that would result in permanent protection of land.

Since SCR001 was a proposed constitutional change, it required a two-thirds majority in both chambers to pass. SCR001 failed on the Senate Floor on a vote of 18-16.

Final Status of bills of environmental concern

House Bills

Senate Bills