Opinion: Can Polis and the Legislature tell Home Rule cities how to run their communities?

Note: This column has been updated to reflect that six cities are a part of the lawsuit against the state to protect local authority.

A key story in Monday’s Camera was about Lafayette having joined Aurora, Arvada, Glendale, Greenwood Village, and Westminster in a critically important lawsuit that will decide whether home rule cities, including Boulder, get to determine their own land use, or if the Legislature and governor can dictate how to zone and manage our cities.

I’ve put a fair amount of time into researching this issue; here’s what I’ve found to date:

The Colorado Constitution allows cities to become “home rule” and in effect, self-governing by the citizens passing a charter defining their form of government, with certain basic structural rules. Article XX, Sec.6 provides that the laws of home rule cities “supersede … any state law in conflict therewith.” The case law refining this system started in the late 1800s on topics relevant to all cities, like how courts operated. Then, in the 1900s, case law extended into newly important arenas, like the operation of public utilities, and emerging legal dimensions, like taxation systems, law enforcement, special districts, etc. 

But the spate of laws passed in recent legislative sessions represent a new and consequential intrusion into home rule power. For example, HB23-1255 preempts local governments’ growth rate restrictions, HB24-1152 allows ADUs on single-family house lots, HB24-1304 bans minimum parking requirements, and HB24-1313 requires very significant densification in areas near bus and train routes and stations. Thus, they represent a massive takeover of local affairs by the state in certain areas.

Worse, their implications were not adequately thought through. So, for example, the rule against requiring parking for residential development risks creating conflicts as people fight for limited street spaces. The elimination of growth rate limitations and forcing increased density may lead to cities running out of water, sewer or street capacity. For example, per Lafayette’s mayor, these rules could increase Lafayette from 12,000 houses to possibly over 30,000! Plus, these growth promotion schemes ignore the resulting overcrowding of parks, open spaces, mountain trails, etc., and overuse of our finite resources, which is what we love about Colorado.

Some cities expressed their unwillingness to follow these rules for justifiable reasons, like lack of ability to adequately serve that many people or desire to keep their cities reasonably livable. So, on May 16, Governor Polis (with our Mayor Aaron Brockett in attendance) publicly imposed an Executive Order “for the purpose of establishing priority for state Funding Opportunities”, in which Polis (ab)used his power as governor to financially penalize those cities that had the temerity to act to address their very legitimate issues with the recent laws.

On May 19, the cities named above filed their lawsuit to overturn some of these legislatively enacted regulations. Given the close timing, I suspect both sides were aware of the other’s plans. Timing may also relate to the relative length of the documents — Polis’ executive order is only six pages, whereas the cities’ lawsuit is 86 pages.

In my Lexis search of the Colorado Constitution, I found very few limits on home rule cities spelled out. Those limits that exist seem specific and reasonable and do not explicitly grant the state power to interfere in local affairs. And the court-created limitations on home rule cities are mostly to resolve unclarities. None are as targeted and intrusive as what the Legislature and Polis are now pushing, in my opinion.

Confirming that perspective, the state Office of Legislative Legal Services, which provides unbiased advice to state officials, provides a very complete summary of the limits on the state’s power to intrude into local affairs. Here’s their text:

“Key Factors. Finally, in determining whether a state interest is sufficient to justify home rule preemption, the court considers a variety of factors. These factors are intended to assist the court in measuring the importance of the state interests against the importance of the local interests in order to make an ad hoc decision as to which law should prevail. These factors include: (1) The need for statewide uniformity of regulation; (2) The impact of the measure on individuals living outside the municipality (“extraterritorial impact”); (3) Historical considerations concerning whether the subject matter is one traditionally governed by state or local government; (4) Whether the Colorado constitution specifically commits the particular matter to state or local regulation; and (5) Whether there is a need for governmental cooperation to facilitate the laws concerning the subject matter in question.” 

It seems to me that the Office of Legislative Legal Services and the six cities would agree that the state’s recent intrusions into local affairs are not justified. Let’s hope the Colorado Supreme Court also agrees.