*1 TELLURIDE, Colorado, TOWN OF municipal corporation,
Petitioner, VENTURE,
LOT THIRTY-FOUR
L.L.C., Respondent.
No. 988C547. Colorado,
Supreme Court of
En Banc.
June 2000.
As Modified on Rehearing Denial of
June *2 Ely, County Attorney, Aspen,
Jоhn Colora- do, Curiae, Attorney for Amicus Pitkin Coun- ty. Worcester, City Attorney, Aspen, P.
John Colorado, Curise, *3 Attorney for Amicus Aspen. P.C., Associates, Andrew C. Hamrick & Hamrick, Colorado, Englewood, Andrew C. Curiae, Attorney Apart- for Amicus Colorado ment Associates. Opinion
Justice KOURLIS delivered the the Court. scope
This case concerns the state prohibition on rent control contained see- tion Specifical- 10 C.R.S. ly, we must determine whether a local afford- housing able measure constitutes rent control statute, prohibited by whether municipality may home rule au- exercise its thority regu- over matters of local concern to despite late rents the state rent control stat- ute. (Town)
The Town of Telluride enacted Or- imposes dinance which an "affordable housing" requirement majority on the of new developments in the Town. The ordinance requires property owners to create afforda- forty percent ble for employ- generated by development. ees new Owners satisfy requirement can by constructing rates, new by units fixed rental imposing deed restrictions on free market rates, units order to fix rental paying housing, fees lieu of conveying land Covell, P.C., Alperstein & Edward M. Cas- housing. Town for affordable Lot wall, Denver, Colorado, Attorney for Peti- Venture, Thirty-Four (Thirty-Four LLC. tioner. Venture), ordinance, challenged claiming it constitutes control cоntraven- Wolfe, Geselbracht, Rudnick & F. Thomas tion of section 88-12-301. Vorbeck, Steinberg, Morton M. M. Rachel Today, we hold that Ordinance 1011 does Illinois, , Chicago, Herbert S. Klein & Associ- commonly fall within the meaning understood ates, P.C., Klein, Aspen, Herbert S. Colora- of rent control. Because the Town's ordi- do, Attorneys Respondent. for contemplates rent control within the Wilson, Denver, Colorado, Geoffrey T. At- term, plain meaning of that it conflicts with Curiae, torney for Amicus Colorado Munici- broadly prohibition state's worded pal League. controlling local measures rents. Austin, Smith, P.C., Peirce & Fen- Thomas We further hold that the state statute su Smith, Colorado, Aspen, Attorney persedes ton authority for aof home rule munici Curiae, Aspen/Pitkin County Amicus Hous- pality regulate rents. The issue of rent implicates both state and local inter ing Authority. therefore, developer A ests, properly it is 83-740.2 must we find that provide square housing space feet of as a "mixed" concern. Be characterized forty employees concern, percent of the number of a mixed and because is cause conflict, proposed development generates. See id. 1011 and the statute mitigation requirement §§ 3-740.A.1.The yield stat must local ordinance therefore, zoning We, ap imposed uniformly majority in the affirm the court of ute. Town, Venture, in district classifications within the Thirty-Four LLC. peals. See Lot cluding the AC-2 district. See id. 38-720. Telluride, (Colo.App. P.2d 308 Town 1998). invalid, to be find Ordinance 1011 We provides developers with Ordinance 1011 constitutionality the state uphold the general options, four or a combination there statute. of, satisfy housing require the affordable *4 (1) They may construct new ment. units L. housing, deed-restrict them as affordable see 8-750.B.2.¢, §§ id. 3-750.B.2.ato 8-750.B.8.a A. (2) 3-750.B.8.¢c; "existing to deed restrict 1994, Thirty-Four respondent, In June housing,3 free market units" as affordable see Venture, and 84B in acquired title to Lots 34 8-750.B.2.d,3-750.B.8.d; pay §§ id. fees (AC-2) zoning the Two dis- Accommodations housing,4 see lieu of deed restricted id. the of Telluride. The AC- trict within Town 3-750.B.2.e, 3-750.B.3.e; convey §§ permits accommo- 2 district visitor-oriented the of Telluride with a fair land to Town and recreation facilities to serve visi- dations paid value to the fee under equivalent market in limited commercial tors and residents three, §§ option 3-750.B.2.g, see id. 8-750.- uses. B.3.g. 1994, September the Town Council of (Town Council) Approximately adopting weeks after Telluride two the Town of ordinance, adopted the Town also adopted which amends the the Council to add "affordable the Telluride Land Use Code Housing Affordable Guidelines Telluride (Guidelines). Guidelines, working The housing" mitigation requirements. The - conjunction with Ordinance establish Town enаcted the ordinance to ad Council price by pressures guidelines regulations for rent- generated dress concerns grea.1 units, eligibil- development in The ordi al and the conditionsfor new tenant ity. developer de If the chooses either of the requires engaging owners new velopment mitigate options, of that deed restriction then the Guidelines the effects per square development by generating hous set maximum rental rates foot for affordable Colo., Telluride, property. forty percent of em See Telluride ing units for the new § A development. Housing Affordable Guidelines 6 ployees created See options, "Findings" deed restriction 1. 1011 state: 3. Under either of the The privately.owned. property Howev- remains development generates Recognizing that new needs, er, developer employment must the Town as an additional consistent name development miti- party with the desire to have new in the deed restriction and afford interested development, gate impacts attributable to such rights, option Town as an certain such require necessary the Town finds it new purchase property. See Telluride Affordable housing. provide Guidelines, affordable Housing § 10. long-term housing Maintaining permanent and employment gen- proximity to the source of Larger may developments a maxi- 4. contribute community, re- eration serves to maintain the housing require- mum of of the affordable 15% regional congestion, traffic and minimize duce option, through and must ment the fee in lieu communities,. adjacent Housing impacts on remaining through satisfy one 85% must be affordable to the local labor force in §§ See Ordinance 3- other alternatives. economy to order for the local remain stable. 750.B.1, 3-750.B.2.e. Smaller may developments § 3-710.A. ‘Ordinance housing requirement satisfy the full affordable family Only single 2. the construction of a 3-750.B.1, §§ through option. 3- the fee See id. duplex single exempt residence on a lot is from 750.B.3.¢. housing requirement. § 3- affordable 730.0. unconstitutionally multi- unit's maximum rent is determined statute does not amount, plying monetary city's a constant self-governance violate home rule single apartment, authority pursuant for a bedroom to article XX of the $1.42 Colo- footage § square of the unit. See id. 6 rado Constitution. However, the court went cap rental rate thl.2. Guidelines increas- complaint on to dismiss the because it held designated es for units as affordable provisions that "the of Ordinance 1011 do not annum, per at no more than unless the 2.5% contemplated 'rent constitute controls' as Housing Authority higher Telluride allows a prem- 38-12-3801." The trial court [section] § increase. See id. 6.7. The sale of deed "significant ised this on the conclusion discre- properties similarly restricted limited. tion" that the ordinance vested in the devel- Properties may qualified be sold resi- oper satisfying to choose the manner of dents, or qualified to a owner who willrent to housing mitigation requirements. affordable residents, yualified price for maximum sale appeals judg The court of reversed the per square growth foot with the annual ment of the trial disagreed court. The court price capped. sale See id. 7. with the trial court's characterization of the price The Guidelines also set a base for the scope Ordinance as outside the of "rent con payment-in-lieu option. of construction contemplated by Assembly. trol" the General payments Town id. will use the Venture, Thirty-Four See Lot LLC. *5 production of additional affordable hous- Telluride, (Colo. 308, Town ing. id. Instead, App.1998). the court held that Or dinance 1011 constitutes "rent control" within B. meaning of section 88-12-801 "because Thirty-Four challenged Venture the af the restrictions set [in out the Ordinance] housing provisions fordable of Ordinance operate options to reduce the number Miguel County 1011 in San District Court.5 plaintiff property available the use of its Thirty-Four sought enjoin Venture agreed from what it had previ to under the ordinance, enforcing arguing Town from agreements" ous with the Town.6 Id. Fur control, therefore, constitutes rent ther, appeals the court of refused to hold 38-12-8301, (1999), violates section 10 C.R.S. section 38-12-301 unconstitutional an im precludes municipalities which from "en proper self-governance intrusion into the au acting] any ... ordinance which would con thority of home rule id. cities. See private property." trol rents on residential appeals. granted Telluride now We certio- summary Each side moved judgment. rari granted The trial to consider whether Ordinance summary court the Town's 1011 is a motion, judgment purview form of "rent control" within the and dismissed the com- 38-12-8301, so, plaint, including allegation section and if whether Ordi- section Assembly enacted nance 1011 violates section 38-12-301. The 1981, ap- trial court noted that section constitutionally supersedes 88-12-8301 101 1.7 plies city to the Town as a home rule agreements 34B. covered a number of areas 5. 21, 1994, On June the Town Council had adopted amending the Telluride development associated with the initial by reducing, among things, Land Use Code land, other dedications, including improvements of in- percentage the maximum cover- frastructure, employee housing. age permitted zoning on sites within the AC-2 later, district. One month Venture Thirty-Four granted following 7. This court certiorari on the Town, complaint against challenging a filed issues: zoning regulations the revised on a number of legal Thirty-Four bases. Venture later amended appeals finding Whether the court of erred in complaint challenge its initial to include its that Ordinance 1011 constitutes form of regarding Ordinance 1011. None of the claims prohibited by "rent control" 38-12- section appeal. Ordinance 1007 are at issue in this (1998). 10 C.R.S. appeals Whether the court of erred in affirm- "previous agreements" 6. The referred to ing opinion the trial court's that Ordinance appeals agreements court of consist between superseded by 1011 is section 38-12-301. previous and the Town owner of Lots 34 and IL. types, "Rent control statutes come in all shapes Epstein, and sizes." Richard A. Rent requires appeal The first issue on us to Theory Regula- Control and the of Efficient whether Telluride's affordable determine tion, L.Rev. Brook. Gen- housing scheme falls within section 88-12- however, erally, peg rent control statutes prohibition 8301's "rent control." The stat- allowable rent to the rent in historic an area ute is titled "Local Control of Rents Prohibit- time, point in permit at some fixed in- states, ed" and payments only creases on the basis of general assembly finds and declares price the consumer index or some other neu- imposition pri- of rent control on yardstick. tral See id. at 748. Rent control vate residential units is a matter statutes do not isolate units for concern; therefore, county of statewide no treatment, special usually apply but to a municipality may any enact ordinance properties. broad class See id. at which would control resolution rents "Every only 745. rent control statute has private property. residential This section one raison d'etre to insure that the landlord's impair right is not intended to kept below the fair market rental of county, or agency, municipality property." Id. at The result is that manage any property in and control which effectively compel such statutes a landlord to through it has an interest au- convey portion property of his interest thority agency. or similar the tenant for the tenant's benefit. id. at § 38-12-8301. We find term "rent control" to A. be clear on its face. Rent control is common The General did not "rent define ly understood to capped mean allowable rent Further, published opinion control." no of a at a fixed rate with limited increases. *6 court, exception with the Colorado of the Epstein, supra, See at 742. Because Ordi case, appeals' court of decision this has per square 1011 sets a base rental rate statute, addressed much less addressed strictly growth foot and then limits the scope proscription the its against rent rate, the ordinance constitutes Thus, interpret control. we first must the control. operates The scheme as a whole 8 meaning phrase "rent control." suppress rental values below their market Therefore, appeals values. the court of cor construing meaning When of a the rectly concluded that the ordinance restricts statute, reviewing courts should consid first property ability develop the owner's his statutory language give er the the words land as he sees fit. plain ordinary meaning. Sny their See Embree, der Oil Co. v. 862 Although P.2d 262 ordinance has laudable (Colo.1998). assessing plain language, purpose In increasing affordable the court should not read a statute create within the communities where lower income work, exception plain language employees an that the does not the ordinance nevertheless warrant, suggest, plain or mandate. language prohi- See Common violates the of the state Davidson, prohibition Sense v. Alliance bition on rent control. The (Colo.2000). long 753 the meaning unambig- As as is section 88-12-8301 on rent control is unambiguous, complete, encompassing "any courts need not resort to inter uous and ordi- сonstruction, pretive statutory rules of nance or resolution which would control added.) legislative (Emphasis intent or the external cir rents." The term "rent art, at the cumstances time the statute was en control" is not used as a term of and the East acted. See Lakewood Samitation Dist. language plainly broad of the statute encom- Court, (Colo. passes operate v. District P.2d mandate that would ~ 1992). control rents. imposition 8. Section 38-12-301 uses both the "rent "rent terms control" and an act of control" and "control rents." We find no municipality to "control rents." grounds municipality's to differentiate between a subsequently developed. 88-12-8301. that 1011 does Were we to hold Ordinance in the statute effectively The absence of distinction control, we not constitute existing between and new units is evidence exception an to the statute that would create Assembly has not debated or the General the broad nature of the statute. course, holding today that adopted. our Of develop- offers The fact that the ordinance 1011 constitutes rent control does options satisfying the "afford- ers several for Assembly from prevent not General housing requirement" change does not able permit amending the rent control statute of, redeem, the character or the rent cоntrol as Ordinance 1011.
local ordinances such provisions. provisions Either constitute short, remedy must hold that the Town's we enforced, they rent control and cannot legislature. be with the not. What we examine here is whether do options constructing new determined that the Because we have restricting existing housing constitute deed face, we need not statute is clear on its 1011, §§ rent control. 3-750.- See Ordinance including legislative history, consider 38-750,B.2.d, to 3-750.- B2.a to 8-750.B.8.2 triggered that historic conditions General B.3.d. Whether the balance of ordinance Assembly's ban rent controls. decision to is not is severable and remains enforceable Assembly enacted We note that the General appeals that the court of issue was before response provision in 1981 in to a citizen Therefore, or before us. we do not address imposed have initiative in Boulder that would it. However, city. rent controls within that sug language does not broad of the statute develop prop- owners decide to their Once gest an intent to limit the ban on rent control erty, they program in a must engage proposed at types of local measures effectively the value of the rent- redistributes Moreover, we note the time enactment. property al from landlord to tenant-a hall- force, аs the that statutes remain even mark control. Because of rent circumstances led to the ereation values, imposes price a base for rental change. AT T statute & Communica growth, the rate we and thereafter limits State, States, Mountain Inc. TTS tions of conclude that the ordinance constitutes rent (Colo.1989) (concluding P.2d plain meaning control within the of section frozen in time" as of its statute was "not 38-12-8301. date). enactment required not to reenact a statute "whenever *7 TIL technology changed ... new or conditions Because we hold that Ordinance 1011 is might seope the of the statute's cover affect control, form of we must address Therefore, age." we assess the rent con Id. question presented review: second face, applies trol statute on its as it to cur may impose whether Telluride nonetheless conditions. rent control it is a home rule munici- because pality. The trial court ruled that
B.
the rent
preempts
authori-
control statute
the Town's
1011 cannot
saved on
ty,
rejecting
argument
thereby
the Town's
only
grounds
applies
that it
to new con
statute was unconstitutional.
existing housing
are not
struction while
units
appeals
of
determined that
court
likewise
subject
fact
to the controls. The salient
regulation of rent control
is a matter of
caps
the ordinance
rates for a
concern,
therefore,
statewide
the state
price
of
at a
below what
class
trumps
statute
Ordinance 1011. See Lot
market can bear. The effect of the ordi
Venture,
Thirty-Four
P.2d
976
at 807. We
same, regardless
whether
nance is the
of
new
affirm the result
reached
the court of
exempt: namely,
existing
units are
a see
appeals,
adopt
but
a different rationale.
of the
market
is removed from
tion
addition,
prohibiting
applies
In
competitive marketplace.
The statute
municipalities.
statutory
makes
to all counties and
38-
ban on rent control
no
existing
municipality
The statute defines
between
units and those
12-301.
distinction
town,
city,
city
county
"any
include
declared that
the matter
adopt
home rule char-
which has chosen
is one of statewide or local concern. See
10 C.R.S.
ter."
Co.,
(holding
National Adver.
T51 P.2d at 635
that a
policy
declaration of statewide
should
The Town of Telluride is a home
"great weight"). Although
be afforded
municipality.
rule
Home rule cities are
conclusive,
a declaration is not
City
see
&
plenary authority by
granted
the constitution
Denver,
768,
County
788 P.2d at
n. 6
of
regulate
issues of local concern. See Colo.
(noting
Assembly's
that the General
declara-
XX, §
city
art.
6. If a home rule
takes
Const.
binding),
tion is not
it will bе afforded defer-
concern,
action on a matter of local
and that
recognition
legislature's
ence
au-
statute,
ordinance conflicts with a state
thority
public policy
to declare the
precedence
provision
home rule
takes
over
concern,
state
matters of statewide
see
id.;
City
the state statute. See
see also
&
Co.,
National Adver.
We
regulat
First,
part
statutory scheme
making
is
of the state
must avoid
deci
tions.
courts
It is
intrinsically legislative.
that. are
relations.
ing landlord
sions
and tenant
See
-802,
§§
10 CRS.
policy or to
up
the court
to make
not
Soc'y
weigh policy. See
Commu
in
Colorado
relations is an area which
of
Landlord-tenant
Lamm,
expectation
have an
of consis
Inc.
state residents
nity
Psychologists,
& Inst'l
v.
(Colo.1987).
Uniformity in
tency throughout
the state.
If we deter
P.2d
landlord-tenant
relations
fosters
informed
legitimately one over
mine that
the issue is
parties to
authority,
expectations by
a
Assembly has
realistic
the General
which
lease,
quality
in
which
turn increases the
inquiry
then our
must end.
promotes
reliability
fair
housing,
of
Second,
Assem-
we
the General
note
tenants,
litiga
could
treatment
reduce
preclusion of
bly here did announce that the
tion.
is a matter of statewide concern.
closely related
The second factor is the
indicated,
As we have
See
88-12-8301.
munici-
question of whether
the home rule
pronouncement
dispositive,
not
but
it is
is
pality's
have
extraterritorial
action will
instructive.
Denver,
impact.
County
See
specific
turn then to the
factors.
We
impact
at 769. An extraterritorial
P.2d
consideration is whether
the state
first
involving
mu-
one
state residents outside the
pervading
in
uniform
has a
interest
statewide
nicipality.
id. at 768.
In Denver & Rio
See
regulation.
City &
Co.,
Grande
Railroad
this court
Western
example, in National
Here, municipality both the and the state proximity long-term housing the source maintaining employment generation to maintain significant have interests serves quality quantity of affordable community, regional reduce traffic con- adjacent gestion, impacts and minimize on the state. Ordinances like Telluride's can 1011, § 3- change dynamics supply and demand communities." See Ordinance recognized important economy-the 710.A. The in. an sector of the con- prohibition potential market. A extraterritorial of rent consistent *9 passed Rep- encourages in the trol when it section 88-12-8301. rent control investment Chaplin, in high sponsor of the bill rental market and maintenance resentative Representatives quality Although rental economic con- the House of stated: "We're units: Any may vary housing facing future disasters. ditions markets across state, legislature availability stock.... has seen fit to enact lowers effect, a a matter of This would have a disastrous and a uniform ban on control as rippling throughout entire state of public policy. effect our House Bill 1604-81: Discussion control, Colorado." regulation generally, or economic ei- Before the Comm. on Local Govern- Senate regulation. to ther state local ment, Reg. (Apr. Legis., 42d Ist Sess. us, then, analysis Where lead does 1981). develop- Managing population and assessing measuring the various inter- among pressing growth ment is the most ests stake? The state's interests include currently problems facing communities - application consistent of statewide laws in a opera- throughout Restricting the state. patchwork approach manner that avoids a respect tion of the free market with to hous- Further, problems. legiti- the state has may in- ing one area well cause in preserving capi- mate interest investment population migrate vestment and to other market, ensuring tаl in the rental stable already facing growth their own communities quantity quality housing, maintaining problems. Although ripple may effect generated by properties, tax revenues well be minimal in Telluride because of its protecting the state's overall economic isolation, geographic absolutely it is true that Telluride, hand, health. on the other has a growth of other mountain resort commu- use, controlling valid interest land reduc- impacted neighboring nities has communities ing regional congestion pollu- traffic and air greatly. The fact Telluride ordi- tion, containing sprawl, preserving a sense of mitigate nance affirmative is an effort community, improving quality life change does not the fact employees. of the Town's community growth one is tied to the whole, On the we cannot conclude that this growth thereby buttressing next, discretely matter so is local that all state regional ap- need or even statewide superseded. legiti- interests are Given the proach. macy of both state interests and Tellu- interests, ride's we conclude that rent control inquires
The third factor
as to
represents
mixed
area of
state and local
traditionally
whether
the matter
has been
concern.
regulated at the
the local
state or
level.9 See
Denver,
City
County
&
9. Telluride that Ordinance 1011 is an tion. Even the measure amended Code, municipality's police power exercise of the Telluride Land Use the ordinance does not use, rather, regulate traditionally regulated permissible property; an area land dictate uses of real government. property may Colorado it dictates the rate at which the permissible supra, purpose. (Colo. used for a Part Springs Smartt, 1980) (holding regulation that land use zon It is, therefore, II. characterized as eco- properly concerns). ing reject legislation. *10 are local We this conten- nomic AQ
IV. from the face of statute. Under cireumstances, appropriate it is to turn to conclusion, we hold that Ordinance 1011 statutory deter- other rules of construction to options constitutes rent control because scope legislature's mine the intended employee housing constructing new for prohibition against rent control ordinances. restricting existing housing are within deed Co., See, e.g., Colby Progressive Ins. Cas. meaning commonly understood (Colo.1996). 928P.2d is an propriety control. The of rent control history legislative I look first impli- that has both local and statewide issue by the then to other enactments impact, we conclude that it cations and Assembly implicаted by majority's broad within an area of mixed state and falls lan- concern and interest. Given the broad of "rent control." definition statute, guage of the we find prohibi- clearly the state conflicts with A. in section 38- tion on rent control contained very legislative history clearly The shows result, we hold that Ordinance 12-301. As prevent that the statute was intended to 1011 is invalid and that section 38-12-8301 proposed enactment of a citizen initiative does not violate the home rule amendment city of Boulder other similar the constitution. rent control ordinances. ap- Accordingly, affirm the we court Rent evolved as a control ordinances peals' decision to reverse the trial court's rapidly rising means to address residential summary judgment, and remand the grant of inadequate sup- housing rates caused proceedings in accordance case for further ply housing housing of new stock stock. opinion.
with this problem product depressed capital was the high investment due to the costs associated dissents, and Chief Justice MULLARKEY with new construction. See Kenneth K. joins in the Justice HOBBS dissent. Baar, Drafting Rent Guidelines Control Justice HOBBS dissents. Decade, Rutgers Laws: Lessons (recognizing L.Rev. 726 & nn.4-5 MULLARKEY, dissenting. Chief Justice "tightening housing of the rental market" majority interprets the anti-rent-con- as a function of increased 38-12-8301, 10 trol statute section CRS. costs); General, Comptroller Rental see also (1999), very broadly. applies It that con- Housing: A National Problem That Needs ordinance, preempt the Telluride struction ("[Closts Immediate Ailtention preemption permis- holds that such dramatically during past have increased pro- under the constitutional home rule sible years, particularly few the areas of finane- vision, XX, article 6 of the section Colorado materials, labor, ing, building and land. respectfully Constitution. I dissent. increases, coupled lagging These cost costs, rapidly escalating rents and have cere- I. privately financed, ated a where situation multifamily longer con- rental is no authority majori- There is no sound for the investment."), quoted sidered a viable ty's reading prohibition against broad Baar, supra, at 726 n. 5. imposed by rent control ordinances the state statute, contrary, statute. To the its identifying While a need to control history, legislative legislative and other en- increases, jurisdictions recog- rate these also support leg- actments the conclusion that the that rate would fu- nized restrictions deter prohibit islature of a intended enactment investment, thereby exacerbating ture ordinance, specific type of and the Telluride Thus, shortage. jurisdic- all stock category. is not within that ordinance enacting rent in the tions control measures The statute does not define the term "rent early expressly 1970's and the 1980's limited control," scope prohibition existing by exempt- and the the restrictions units ing Man- against rent control ordinances is not obvious new construction. See Michael J. *11 Committee, del, Assembly, Hurt Tenants?: A Government 58d Does Rent Control Gen. 1267, Reply Epstein, (Audio 54 Brook. L.Rev. Reg. Hearing Tape 1st Sess. May (1989) ("Under 1981) laws, existing all rent Senate Local [hereinafter Government (statement regulates apart- May Hearing Jay Drury, pri- the rent on most ] control date, initiative), mary a but new author of the Boulder ments built before exempted regu- apply rent the initiative construction is from did not to those owners units, apparently renting Cracraft, lation.... This small difference three or less see Jane Vote, Target makes a tremendous difference effects Petitions Boulder Rent-Control control."); York, N.Y., Post, 26, 1981, ¢f, 24; eg., of rent New Denver Feb. Sen- ef (excluding April Admin. Code YY51-8.0.d all ate Local Government Hearing, supra, (statement date); Rosemond, Barry built after a appearing units certain Santa Moni- as Cal., 1801(c) ca, XVIII, citizen, City an noting Charter art. interested but further Santa Monica he is [hereinafter Charter] associated with the Denver Tenants' Association) (comparing Initia- Boulder (excluding all construction}. new City's tive provi- to New York Assembly clearly cogni- The General was sions). zant of these economic cireumstances. As Strickland, by sponsor addressing by noted Ted the Senate In the concerns created problem initiative, of H.B. "The that we are Boulder most testimony having providing housing in our state in legislators statements witnesses and alike any geographical prob- pertained problems location is a severe to the associated with costs, cities, Inflationary high lem.... cost primarily control other New City York and cities in An ex construction, California.10 money, inflationary cost of inability developers buy money seope legisla amination of the of rent control shortfall, cities, causing build the facilities is As tion in these as well as the Boulder that, increasing." a result of rents are Hear- ultimately initiative that incited action ing on HB. resulting the Senate Local in section aids an under 1604 Before Committee, Assembly, standing Assembly's Government 58d Gen. contem (Audio Reg. Hearing Tape Apr. 1st Sess. poraneous understanding phrase, "rent 1981) Senate Local control." [hereinafter Government (statement
April Hearing} of Sen. Ted "Rent control" as it understood was when Strickland, sponsor). legislature acted had several common rates, response rising seope charаcteristics: of rent control en- citizen-sponsored proposed compassed Boulder only existing exempting initiative units that all development; rents would revert to a base rental new hotels and other "tran- equal to exempted; qualifying rate the rental rates 1977. The sient" units were own- given respect owners could increase that base amount com- ers were not choices with alternatives; controlling non-rent the rental living mensurate with cost of with- increases permission, applied out rent control board qualifying and above rate restrictions to all living permis- upon the cost of amount with board units based the characteristics or classi- See, York, N.Y., "permanently eg., sion. The Boulder initiative fication of a unit. New construction, exempt[ed]" 8.0; §§ all new see Hear- Admin. Code YY51-1.0 to Santa Charter, 1800-1805; §§ the Senate Local Monica see also ing H.B. 1604 Before Hearing eg., Hearing, See, on H.B. 1164 Senate Local Government April supra, Before Committee, (statement Assembly, Rep. Chaplin, sponsor) House Business 53d Gen. James T. (Audio Reg. Hearing Tape (citing providing "prime 1st Sess. Mar. New York 1981) Baker, President, (testimony Ray example" city); Colo- of the effects of rent control on a (statement Strickland, sponsor) id. of Sen. Ted Association, rado Metro Denver Apartmеnt anti-rent-control, Chapter) (presenting (propounding avoiding infor- the bill as a means of discussing problems mational film the detrimental effects associated with rent control in New provisions City, City); May of rent control in New York York Senate Local Government Hear- California); (statement (statement Washington, ing, D.C., Folscher, id. of Rick Presi- supra, dent, Co.,) sponsor, Rep. Chaplin) (discussing (recounting experiences James T. Folscher his the detrimental effects of measures California, with rent control as an owner of investors). company property California); associated with Springs Monica, in Palm and Santa *12 644, developments the rate empting new from City Berkeley, 37 Cal.3d Fisher of (1984) (address- restrictions, 682, 8-740.A of the ordinance section Cal.Rptr. initiative). requirements applies housing Berkeley the affordable ing the development. See Ordinance only to new that produced around the time The literature 1011, Thus, single § one supra, 3-740.A. not Assembly enacted see- the Colorado General subject to Ordinance clearly that rent unit that illustrates tion 38-12-3801 fall within of the rent control jurisdictions, exhibiting while 1011 would in other control differences, by legislature, and con- calcula- laws considered many minor such as the increases, subject possessed versely, single housing unit living not one of cost of tion Baar, eg., legislation have fallen Cf., to rent control would commonalities. these broad exhaustive discussion of within Ordinance 1011. This supra, (providing an difference does before); implementation a mere choice but in 1983 and Rich- not reflect rent control laws Control, represents a fundamental distinction between Epstein, A. Rent Brook. ard 741, (1988); Mandel, mitigation supra. the rent control model and the 742-48 L.Rev. today. measures of There are substantial differences between Finally, 1011 differs substantial- concept rent control as it was under- Ordinance by the General when it en- phrase stood ly seope from the "rent control" hearings re- legislative as used in the acted 38-12-801 and Telluride's Ordinance First, trig- spect applicability criteria. very different economic Under 1011. by control laws considered the General gers account for the enaction of Ordinance Assembly, of the rental concept of "rent control" characteristics 1011 and use, Second, unit, trig- upon of the different or its classification based its because typical gov- whether a rent control law gers, Ordinance 1011 and the determined sense, very In ordinance evidence distinct erned the unit's rental rate. compre- existing units and new devel- those rent control measures were treatment hensive, Third, applying particu- all thе units of a opment. rent control measures con- housing unit- applicability ditioned on a lar classification. contrast, determination. characteristic 1011, hand, adopts the other on applicability 1011 conditions on a scheme, prem- impact-based applicability per- community-impact determination ising application rental rate restric- developer among
mits the to elect several employees generated on the number tions including options mitigation measures development. proposed a See Ordinance have no direct on rental rates. § supra, 8-740.A. With a few minor dispa- exceptions, applicability Addressing the first difference-the of the rental rate triggers corresponding type in- has relation to the rate economic restrictions no unit. id. tended effects-Ordinanee 1011 arose from classification of dissimilar, Thus, § very opposite, if not economic con- 3-730. Ordinance 1011 will burden mall, hotel, § supra, development 3- of a ditions. See Ordinance retail (Statement apartment Purpose). shortage complex, A the construction of an 710.A assuming they generate num- affordable exists in Telluride be- the same high degree capital employees, ber of with the affordable cause of investment same development projects, housing requirements. rather than the stagnant rent con- investment motivated Similarly, incorporation Ordinance 1011's Thus, precip- condition trol. economic of alternatives to rate restrictions creation itating the of Ordinance mitigation substantially its model also differs cqnsequently, the intended effect of that or- from rent control ordinances. See Ordinance mitigate the dinance-to deleterious effects By allowing develop- supra, 8-750. development-are high levels of economic measures, in- mitigation ers a choice as to seope not within the of "rent control" as the eluding impose not some alternatives that do Assembly understood it. rates, applica- on the rental restrictions
Second, concept unlike the of rent control bility is not a function of Ordinance 1011 unit; instead, existing solely of classification of a applied which units ex- of the state and the result- applicability can be a function of land make new ing demands its resources developer. by the choice elected necessary innovative measures to en- qualitative these improper to construe It is planned orderly courage land use devel- differences, majority, as mere as does the opment" provide and "to for the needs of ... legislation. Ordi- of rent control variations communities." residential very from different eco- emerged nance 1011 *13 (1999). 7 C.R.S. remedy cireumstances and seeks nomic majority The creates rather than avoids a concern; employs it different very different infirmity. by It does this ac constitutional applicability criteria and burdens different Assembly's rent cording the General These are fundamen- individuals or entities. extremely reading statute an broad and local place differences that the Tellu- tal structural regulation extremely land use an narrow outside of the construct of the ride ordinance Instead, scope. principles our usual of statu contemplated by legis- model effect, tory require give us to construction Assembly not lature. That the General did possible, legislature's where to the intent and speaks of reference these differences more purpose, reconciling conflicting seemingly universally concept of understood provisions adopting and commonsense con was enacted control when section 88-12-8301 See, AviComm, eg., Inc. structions. v. Colo legislative apply intent than to Comm'n, 1023, rado Pub. Utils 955 P.2d proscription broadly future. in the Constru- (Colo.1998). 1081 manner, in ing 1011 such a as does in majority, the face of the fundamental Assembly's planning, zoning, The General illustrated, impermissibly I have differences development pervasive statutes contain a and seope of rent control. I would broadens in legislative policy choice favor of local land coverage to the leave such increase example, decisionmaking. use For even Assembly. though legislature declared certain areas interest, and activities to be matters of state
B. county municipality it left to the affected designate the decision whether or not to Further, interpretation the broad accorded regulate such matters. See Colorado Land by major- concept of "rent control" Comm'n, 12, at at Use 199 Colo. 604 P.2d 84- ity impermissibly creates a confliet with oth- government When the local determines statutory provisions. principle A er cardinal jurisdic its regulate such matters within statutory construction is to avoid constitu- tion, may despite it do so the fact anoth together construing tional infirmities stat- government entity required will er utory provisions pari are materia. regulations. its meet reasonable CL Land v. Board See Colorado Use Comm'n County County Denver v. Board of Comm'rs, 7, 11, P.2d County 199 Colo. (Colo.1989). Comm'rs, P 782 .2d 82, 34 Section 88-12-8301 declares County private In Beaver Meadows v. Board rent control on residential Comm'rs, (Colo.1985), units to be a matter of statewide conсern. 986-88 hand, pro- authority determined that existed On the other section 31-28-207 we spe municipality's plan government shall local to address matters not vides that a land use planning, zoning, development cifically mentioned in the address the "harmonious statutes, will, long as the municipality and its environs which so needs, regulations develop present adopted and future address accordance with manner, health, order, impacts in a promote safety, conve- ment reasoned accom best nience, welfare, procedural safeguards prosperity, general panied adequate efficiency economy process regulatory in the detail. We have well as sufficient development, including concept" in also observed that it is a "familiar dffordable (1999) (em- housing." 9 C.R.S. "development pay regulation all land use added). phasis part way." Act of its Comm'rs Colorado's Land Use - (Colo. Inc., Bainbridge, P.2d finding and declaration of further contains 1996). rapid growth the General that "the plethora provisions majority propels statutory a conflict with tion and a Colo- precedent by granting governments power our to local rado's land use statutes and implement enforce land use measures. ignoring the context which the General reasons, respectfully I Assembly аdopted its control statute. For these dissent. addressing It was control of rents for inventory already existing housing. Such IL. determined, regulation, legislature would majority also holds that rent control expectations legitimate defeat the investment "falls within an area of mixed state and local of the owners of rental and lead to and, therefore, concern and interest" Ordi- being unwilling making landlords to continue nance 1011 is invalid because conflicts with them available as rentals. Maj. op. section 88-12-8301. I 40. While contrast, Telluride's ordinance address- would not reach this I would issue because *14 development es new that creates a de- hold that Ordinance 1011 does not constitute employees mand for additional as a direct the meaning within of section consequence. specific -It is founded on mat- 38-12-8301, my with concerns the conclusion concern, particularly
ters of articulated local
majority compel
of the
me to dissent from
Telluride's concern for a harmonious commu-
majority's opinion.
Part IV of the
nity
housing.
Both are con-
affordable
court,
specifically
majority,
enumerated
the
As stated
the
in
siderations
this
State,
Assembly
proper subjects
City
County
&
General
of local
Denver
788 P.2d
of
(Colo.1990), recognized
legislation.
mitigation regulations
The
Tellu-
764
three broad cate-
(1)
adopted provide
developer
op-
gories
regulatory
ride
of
matters:
matters of
concern,
making
legislation super-
local
tions for
affordable
available
which local
(2)
statutes;
forty percent
employee
conflicting
for
of
sedes
the new
de-
matters
concern,
generated by
particular develop-
municipalities
mand
the
of statewide
in which
power
delega-
are without
such,
act absent state
regulation
ment. As
the
the
is within
(3)
tion;
provision
Assembly's
and matters of mixed state
local
"affordable
concern,
housing"
supersede
to be a matter of local concern in
which state statutes
767;
conflicting
legislation.
local
See id. at
regulating
development
juris-
new
within the
Constr.,
legislating municipality.
of the
see
diction
also Winslow
45 development of physical ultimately plan for majority The 1011. by Ordinance at 698. Bainbridge, 929 P.2d municipality"); represents control "rent concludes Maj. concern." local state and mixed area to view compel me considerations Several construed, agree I Narrowly op. at 89. As regulation. land usе as a con- of mixed an area may be recognizes, Ordinance majority however, not. construed, it is Broadly cern. I Land Code. While Use Telluride's amended majori- fringe of is on This ordinance this fact is existence of acknowledge that the understanding extraordinarily broad ty's intended it is indicative dispositive, not beyond passes it applied, As so rent control. compo- 1011 as functioning of Ordinance local area of into the area and the mixed policy. city's land use overall nent of that Ordinance I would hold concern. purpose of Ordi- Further, the statement therefore, concern, ordi- is of purposes mitigative lays out the nance section 38-12-3801 supersedes legislation: they conflict. extent gener- new Recognizing that needs, and employment ates additional disagreement with my crux have new desire to with the consistent of Ordinance majority its characterization impacts attributable development mitigate majority finds Ordinance finds development, the Town though "Even to such legislation: economic development to require new necessary Use Telluride Land amended measure *15 Maintaining housing. affordable provide permis- dictate Code, does not the ordinance housing prox- long-term and permanent rather, dictates it property; uses of rеal sible genera- employment imity source of to the may be used property at which the the rate community, the to maintain tion serves is, therefore, It permissible purpose. for congestion, and regional traffic reduce legisla- as economic properly characterized adjacent communities. impacts on minimize contrary, I the n.9. To Maj. op. 89 tion." local affordable Housing must be is fundamental- that Ordinance contend economy local for the labor force order area that the regulation, use ly a land to remain stable. have consis- Assembly this court and local § be a matter of tently recognized supra, to 8-710.A. Ordinance concern. powers is consistent purpose This Local by the governments granted to local of its characterization majority rests Enabling Act Land Control Use Government con- overly restrictive 1011 on an Act), (Land 29- sections Control Use of use scope of "land cept of the definitional Land -205, In the 9 C.R.S. 20-101 to the fact by relying on policy" Act, Assembly de- the General Use Control of permissible uses dictate "does not clared: rather, the rate at it dictates property; real and assembly hereby finds general per- may used for a property which for provide to in order declares policy,how- Land use purpose." Id. missible development within orderly and planned of ever, mere definition limited to the is not human balancing basic of and a Colorado rather, uses; policy en- land use permissible legiti- population with changing needs of implemented within conditions compasses concerns, policy of mate environmental planning decisions. zoning and of rubric provide broad clarify and is to this state Dedications, classi- example, have been for plan for governments local authority to despite the fact that policy use fied as a land their of land within the use regulate permissible uses not "dictate do dedications jurisdictions. respective 29-20-203(1), 9 property." of real CL Declaration). To (Legislative § 29-20-102 dedications); (addressing C.RS. - the General policy, this (ad- effectuate -207, 31-23-206(1), 9 C.R.S. §§ governments local granted to the Zoning" munici- dressing "Planning * regulate the plan for and authority to municipalities to con- directing palities and by: land use of "master housing in their affordable sider 4G
rounding Maj. op. Spe- at 89. communities. majority cifically, argues that "[rlestrict- (e) Regulating the location of activities and operation free ing the market with may signifi- developments which result respect housing may in one area well population density; changes cant housing population cause investment and migrate already facing to other communities (g) Regulating the use of land on the basis growth problems." their own Id. I find community impact of thereof on the majority's argument unpersuasive for several areas; surrounding reasons. (h) planning regulating Otherwise for and First, City County & provide planned the use of land as to so court considered the extraterritorial protection orderly use of land and city-imposed residency requirement of a the environment in a manner consistent city employees. Den- & rights. with constitutional ver, rejected P.2d at 769. We the state's 29-20-104(1). argument that focused on the adverse eco- requires developers within Ordinance 1011 impacts accruing city, nomic outside of the prescribed zoning mitigate districts primarily speculative nature because developments through effect of their the cere- majori- argument. id. I view such, ation of units. As I affordable ty's extraterritoriality analysis to suffer from component view Ordinance as a speculative the same defects. therefore, city's plan, overall land use Second, majority's extraterritoriality properly should be characterized as land use ~ analysis premise at the strikes fundamental legislation. planning, zoning, develop- of land use mind, this distinction in I now turn to With regulations by exalting operation mеnt free City County the factors established under police power market over the Denver to ascertain whether Ordinance government shape design of a *16 state, local, 1011 is a matter of or mixed community. majority's ignores The rationale majority's finding concern. The Assembly, the that the fact when factor, in the uni- considering interest first need for government role of local the the formity, contrary is to the General Assem- control, consistently land use has decided bly's consistent refusal to consider land use prerogative employ favor local market regulations requiring legislation. as statewide See, manage growth. e.g., restrictions clearly is set in the (Local This forth Land Use 20-20-102, §§ Government Land Act, 29-20-102, Control see and has been 1974). Enabling Use Control Act of see, court, implicitly recognized by e.g., this majority's reasoning countermands the ex- Bros., Voss v. Lundvall 1064- press finding and declaration of the General (Colo.1992) (discussing city's a home rule Assembly in the Act Colorado Land Use authority policy). to control land use Under rapid growth development and Colorado's de- specific case, facts of this mands new innovative measures to en- to the extent can courage planned orderly that one construe it as a land use devel- measure, integrated is into the opment plan for thе needs of residential larger policy- context of Telluride's land use 24-65-102(1); communities. See also see demonstrably purview an area within the of § 29-20-102. such, governmental regulation. local As Third, majority characterizes Tellu- uniformity state's interest in this area is reasonably mitigate ride's effort to the im- may minimal. There be a need for uniformi- pacts community of new on its ty majority suggests, legisla- as the but the if imposing it were a burden on other yet ture has to assert that need in the area of Yet, communities. ordinance Telluride's policy. land use directly mitigating aimed the effects on factor, respect ever-increasing public With to the second the ex- other localities of an impact, majority problem traterritorial raises resorts. can- mountain Workers specter "ripple produced they of a effect" on sur- not afford to live where work because ty employees." Maj. op. life of the prices left to itself out Town's housing market at 39. in favor of tourists and second the laborers people Enabling to live where home owners. significant- Because Telluride's interests so concept reducing pollu-
they key is a work state, ly I outweigh those would hold tion, transporta- congestion, and demand on legislation that Ordinance 1011constitutes infrastructure, expanded suсh as new or tion Therefore, a matter of local concern. carry workers from their roads transit extent that section 88-12-801 conflicts with they overnight earn their abodes to where ordinance, statutory provision is un- wages. XX, constitutional in violation of article see- validly powers tion 6. Telluride exercised its majority misanalyzes the extraterrito city in enacting enforcing as a home rule impact ordinance. It has rial of Telluride's Therefore, respectfully Ordinance 1011. I attempts precisely opposite impact: majority's holding dissent from the in section growth within Tellu contain the effects IIL livability of ride. The ordinance assists the in the areas sur people and communities joins in Justice HOBBS this dissent. city by addressing rounding the of Telluride geography concerns its HOBBS, dissenting: Justice demographics present. positive ef This join in respectfully I dissent and the Chief nega than the fect is of a different character Justice's dissent. She has demonstrated how previously recognized by tive effects majority's comport decision fails to support a state determina court to concern powers government of local under Colo- See, eg., Denver & Rio Grande W. tion. majority's holding rado's land use laws. The R.R. Co. rests on construction of the rent a broad (Colo.1998) imposi (finding P.2d 354 that the control statute that does not take into ac- tion of costs on a rail viaduct construction (1999), count section 9 CRS. negatively impact road could areas outside provides municipalities may ad- which municipality by terminating reducing housing" in dress "affordable the context service). rail planning regulations. their land use An analysis of the third factor also favors facilities, money in Dedication of land and recognizing a local concern. As discussed dedication, fees- lieu properly swpra, Ordinance 1011 is classified legislature-are when authorized regulation. as a land use This court has governments employ can means that local *17 consistently recognized regula that land use mitigate impacts development. of new province tions are within the of the local Bainbridge, v. P.2d Comm'rs See, Voss, eg., government. 830 P.2d (Colo.1997). Impact analysis tech- 1064-65; City County v. Zavala & niques government poli- trends in reflect two (Colo.1988); City 759 P.2d Colora (1) cy regulation: regulation toward land use Smartt, Springs do pro- respond specific development to should (Colo.1981). (2) posals, and standards should predictable. Hagman See Donald G. & City County Denver factors do Juergensmeyer, Urban Plan- Julian Conrad support majority's not conclusion that the ning Development and Land Control Law interest to such a level as to state's rises (2d ed.1986). 9.9, at 289 require legal determination that the mat- legislation ter is one of mixed concern. On Telluride's within context before us hand, majori- planning, zoning, and authori- the other and as stated its home-rule significant in- a ty, the Town of Telluride has ties addresses defined ie., development proposal, mitigation "Telluride terests measure: employees necessi- controlling generation ... a valid interest land of additional has use, development, provides reducing congestion and tated and a regional traffic responsibilities and pollution, containing sprawl, preserving guide reliable bur- air shouldering mitigation community, quali- growth of new improving sense of and dens contemplates forty percent impact. for of that The ordi- statute that Telluride could es- applies jurisdic- authority manage within Telluride's agency tablish an or tion, and geographical takes into account its housing. pow- rent-controlled Its land use milieu, assigns community demographic city pro- ers and its as a home-rule status having in the value to workers live communi- adopt authority mitigation vide it exac- work, ty they mitiga- in which and addresses tions, property such as dedications or in-lieu pollution, congestion, transporta- tion of and payments, housing for affordable its within view, jurisdiction. impacts In my tion infrastructure that arise from Telluride's deci- living community workers outside of developers manage sion to allow or sell commuting thereto. properties covenanted dedicated to afforda- housing, proceeds ble realize the there- ordinance, the Under the Telluride dedica- from, thoughtful--not illegal-option is a compul- housing tion of rent-controlled is not community's serves the need while al- sory. developer may housing satisfy A lowing property owners to benefit from requirements by building purchasing or housing. sale or rental of that units, units, restricting existing deed housing, in- conveying paying land for a cash majority's I conclude that the decision dis- fee, offering lieu a combination of one or option community allows a reasonable for the options. developer more of these A who developers but does not foreclose Tellu- property does not wish to dedicate or cove- ability redesign ride's its ordinance under housing may nant for rent-controlled make housing authority ageney pro- or similar monetary payment an in-lieu that Telluride vision the rent control statute. apply housing. will to affordable In this regard, operates the Telluride like ordinance I Accordingly, join dissent and respectfully payments parks, the in-lieu schools in the dissent of the Chief Justice. dedications, property facility instead approval. in connection with subdivision
Bainbridge,
tion 10 C.R.S. impair right
that "it is not intended to agency, county, municipality manage any property through
which it has interest Thus,
authority agency." or similar