Mountain Law

HOME-RULE VS. STATE POWER: AN ONGOING STRUGGLE

Can a Colorado "municipality" (which includes any city or town) pass a
local ordinance that contradicts a state law? The answer: It depends.

With a few exceptions, Colorado recognizes two "classes" of
municipality depending on how they were formed: "statutory" and
"home-rule." Statutory municipalities include: Blue River, Fairplay,
Eagle and Leadville. Home-rule municipalities include: Breckenridge,
Frisco, Silverthorne, Dillon and Vail. Some areas are not incorporated
as separate municipalities at all - they have no power to pass local
ordinances, and their affairs are largely controlled by the state and
county governments. These unincorporated areas include: Montezuma,
Keystone, Heeney, Eagle-Vail, Evergreen, Edwards and Beaver Creek.

The powers that can be exercised by a municipality depend on the class
to which it belongs. Statutory municipalities possess only those
powers expressly granted to them by the state Legislature or that
naturally flow from granted powers. A statutory municipality has no
authority to pass an ordinance that contradicts state law.

Home-rule municipalities have all the powers granted to statutory
municipalities and, in addition, all the powers granted by Article XX
of the Colorado Constitution. As a practical matter, this means
home-rule municipalities have the same power over their own local
affairs as the state government has over statewide affairs.

So, in order to determine whether a given home-rule ordinance is
enforceable, it must first be determined whether the subject of the
ordinance is a matter of: (1) local concern; (2) statewide concern; or
(3) mixed state and local concern. The courts make this determination
on a case-by-case basis. Once a court decides into which category the
subject of the ordinance fits, it then applies the following rules:

. Matters of statewide concern: The state Legislature has supreme
authority. Home-rule municipalities have no power to legislate unless
authorized by state law.

. Matters of local concern: Both home-rule municipalities and the
state have the power to legislate. However, if a home-rule ordinance
conflicts with a state statute, the home-rule provision supersedes the
conflicting state provision.

. Matters of mixed state and local concern: Both home-rule
municipalities and the state have the power to legislate. However, if
a home-rule ordinance conflicts with a state statute, the state
statute supersedes the conflicting home-rule provision.

An illustrative case involved an ordinance adopted by the town of
Telluride with the intention of making properties affordable for rent
by local workers. The ordinance required property owners to create
affordable housing for 40 percent of the employees generated by new
development, restricted allowed rental rates, and limited the growth
of rental rates. A developer challenged the ordinance arguing that it
contradicted a state statute prohibiting rent control. The court
decided that the issue of rent control was a matter of mixed state and
local concern because it had broad repercussions outside the town
limits. It then determined that the Telluride ordinance conflicted
with the state statute and it held the ordinance to be invalid.

Another high-profile case involved a law passed by the state
Legislature in 2003 declaring control of firearms to be a state
interest and seeking to preempt conflicting local ordinances. After
Denver challenged the amendment as an intrusion on its power over
local affairs, the court found that some of Denver's firearms
ordinances were superseded by the state law - and some were not.

More locally, the town of Dillon will likely consider the extent of
its home-rule powers as it weighs whether or not to allow medical
marijuana dispensaries (which are permitted by state law) within the
town limits.

The recent trend appears to be for courts to find more and more
subjects to be matters of statewide concern, thereby whittling away
the power of home-rule municipalities. It will be interesting to
observe if this trend continues.