Quote:
Originally Posted by bunt_q
Lots of folks discussing this. I generally read it to limit new housing units to 1% of the base in each county. Easy enough to pull those numbers up from the State Demographer. So (since I have the numbers handy, let's pretend the 2016 numbers are the baseline), Denver has 314,631 housing units, so it could issue 3,146 permits the next year. Unclear whether the baseline goes up the following year from the built amount, or the built plus permitted. Less clear I think is how governing jurisdictions within counties might be allocated permits, but the simplest interpretation is 1% growth within each. So in some ways, that actually hurts an Aurora - with lots of growth potential, but a lower base - more than a Denver, where 1% goes further, since it's all infill and starting from a higher base. It kills a Bennett, and makes it hard for a Wheat Ridge to even use its allocation (unclear whether they are transferable within counties).
Another question I have relates to unit mix - the initiative says nothing about that. If all housing units are treated equally, it's hard to see Aurora permitting many more apartments - they get more bang for their buck our of a large house in Tallyns Reach. Not sure what it would mean in Denver... and then, is it first come, first served? What about projects that already have vested rights, but have not yet been given a permit - are they first in line? (or do they count at all?) Would be interesting how the courts would deal with that.
Then there's be the question of whether this sort of statutory restriction - it is not a constitutional change - is even within the state's power under the Colorado Constitution - I would absolutely march into court on the first day and say this is a matter of purely local concern, and that the state is powerless to restrict home rule cities in this way. (That litigation will happen, 100%, and it will not be without merit. Though it will probably come up when some anti-growth force moves to enjoin a City that's breaking the rules. Or perhaps when a developer gets denied.) Lots and lots of things to think about.
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Good summary. I was going to post something on the home rule issue when I saw your post.
I've worked some on state statutory vs. home rule conflicts, and my initial take is that there no way this passes constitutional muster. The basic principal of Colorado Home Rule law is that if a matter is purely of local concern, then the home rule municipality can override any conflicting state statutes. As you note, this is a statutory initiative not a constitutional one.
Its hard to think of anything that would be a better example of purely local concern than the rules a municipality adopts governing its own development. For me, this would be THE paradigm example of a local interest that should trump any inconsistent actions by the state to try to regulate. This is similar to the case where the state legislature in the 1980s, in order to override a Denver ordinance, passed a statute baring cities from requiring residence within the city as a condition of employment. Denver simply ignored the statute and claimed that the legislature could not override such a matter of local concern. Denver won the case at the state supreme court.
The essential local nature of the issue is even supported by the measure itself whose very preamble emphasizes the localized nature of these sort of rules:
1) The electors of every city, town, city and county, or local county, whether statutory or home rule, reserve the right to limit housing growth by initiative and referendum without legislative inhibition or penalty. This right is further reserved on a countywide basis whereby electors throughout a county may elect to limit housing growth uniformly in all local governments and any part of such, whether statutory or home rule, within such county by initiative and referendum.
Thus, on the one hand the initiative recognizes the local nature of the issue but then goes on to to try to take that decision from the individual voters of ONLY the Front Range cities, and have a uniform rule imposed on them by statute. I think this will fail against the home rule cities and might even be challenged under equal protection arguments by non-home rule cities: that the act unfairly discriminates against voters in any front range city subject to the statutory restriction, granting rights to voters outside of the front range that front range voters won't have.
Further edit: Think of the absurdity of this: at least in theory, it's possible that all of the Front Range counties could vote "no" , but the measure passes due to overwhelming support elsewhere in the state. If that were to happen, you'd have a situation where the people subject to the rule, opposed it, and the people not subject to the rule, supported it! This might further support an equal protection challenge.
(As an aside, this may be an example where the the new restriction on initiatives for constitutional amendments prevented the organizers from trying to use a constitutional amendment to accomplish their purposes. Under the rules now in place, an initiated constitutional amendment requires that the supporters get signatures from 2 percent of the registered voters who live in each of the state's 35 senate districts).
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