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Initiative 108 could blunt local land-use rules, officials warn

Author: Mark Jaffe - August 1, 2018 - Updated: August 23, 2018

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Amendment 74An oil pump jack near homes in Frederick in Weld County. (iStock/Getty Images)

Local officials and municipal attorneys warn that a proposed constitutional amendment — backed by the Colorado Farm Bureau and the oil and gas industry — will blunt the ability of cities, towns and counties to make many land-use decisions.

The measure is Initiative 108. Backers are currently gathering signatures in hopes of placing the measure on the fall ballot.

It would enable property owners to seek compensation if a law or regulation reduces their land’s “fair market value,” such as by restricting oil and gas operations. Under current law, a government has to compensate only if a property is taken by eminent domain or its action leaves the land with no economic use.

Also seeking a spot on the ballot this fall is another measure, Initiative 97, which would increase buffer zones between new oil and gas operations and homes from the current 500 feet to 2,500 feet, potentially impacting the value of property owners’ mineral rights.

Switching from a total taking to fair market value could spawn countless lawsuits over a myriad of basic local land-use decisions such as zoning and siting municipal facilities, said Robert Widner, an attorney who represents cities, towns, counties and special districts.

“Every time government acts, it is going to ask, ‘Are we putting ourselves at risk?’” Widner said. “It is totally burning the forest down on a very large scale.”

Sam Mamet, executive director of the Colorado Municipal League, said, “My advice to counties and municipalities is if this passes, don’t do anything … no zoning, no ordinances.”

The initiative’s supporters say the critics are exaggerating the proposed constitutional amendment’s impacts.

“The fact that municipal governments are scared and have a sky-is-falling scenario is indicative that we need this to protect our property,” said Shawn Martini, the farm bureau’s vice president of advocacy. “The other option is giving up some of our rights under the constitution.”

The farm bureau’s support begins with its right-to-farm concerns. The oil and gas industry, which is backing the measure through its advocacy group Protect Colorado, is worried about local actions limiting access to fossil-fuel reserves.

“I understand their concerns, but local and county government is collateral damage here,” Mamet said.

Martini said that courts have set “an extremely high standard on taking” and that is unlikely to change. The law has already established that nuisance, health and environmental regulations do not come under the takings standard, he added.

Some municipal officials and attorneys remain unconvinced. “I don’t think we as public officials disagree that people have to be compensated for the taking of property, but now every rezoning could require compensation,” said Matt LeCerf, town manager of Frederick in Weld County.

LeCerf said the town is currently looking at rezoning a commercial-hotel parcel to residential. There is plenty of land zoned for hotels in the town and the parcel in question is flanked on three sides by residential zones, he said.

“Rezoning makes sense, but is it exposing local government?” LeCerf said.

Frederick has a right-to-farm ordinance and several oil and gas drillers operating in the town. “If that’s the concern, the solution should be more narrowly focused. Do it through legislation, not changing the constitution,” LeCerf said.

Martini said that the bureau’s concerns extend beyond the farm field to other land uses and that a showing of “non-speculative damage” has occurred would have to be made. “Depending on the circumstances, you could have a really hard time proving that,” he said.

Embedding policy in Colorado’s constitution — from the Taxpayer’s Bill of Rights (TABOR) to legalizing marijuana — has often created policy and management problems after the fact, said Richard Collins, a professor of constitutional law at University of Colorado Boulder law school.

“You can’t anticipate everything in an amendment,” Collins said. “There is a lot of stuff that is in our constitution that in a rational world would be in statute, which is easier to correct.”

Part of the reason for Colorado’s constitutional amendment onslaught in years past was that it was easy to get the initiatives on the ballot, Collins said.

That changed with the passage in 2017 of a constitutional ballot measure, “Raise the Bar,” that increased the vote needed for passage to 55 percent from 51 percent. “Fifty-five percent is gigantic. Few initiatives have received a 55-percent vote,” Collins said.

A second provision requiring at least 2 percent of petition signatures be gathered in each of the state’s 35 Senate districts was ruled unconstitutional by a federal district court, but is operative this election while the ruling is under appeal. The petitions for this November’s ballot must be submitted by Aug. 6

Once a measure gets into the state constitution, legislators and jurists are faced with developing “work-arounds” to deal with problems that crop up, Collins said.

The marijuana amendment, for example, provided the personal right to grow up to six plants at home and more if a medical need is documented. The amendment did not anticipate a case of a frat house with multiple residents each growing six plants, nor did it limit where these plants could be grown, Collins said.

The state legislature passed a work-around limiting the right to 12 plants per location, but Collins said, “You could argue that is in conflict with the constitution.”

Washington state legalized the use of marijuana by statue in a referendum. “You can only do statutes in Washington,” Collins said. “It makes it a lot easier to correct mistakes.”

As for Initiative 108 and the five variations of the measure also submitted to the Colorado secretary of state, Collins said, “It would certainly be a bargain for lawyers. There would be a lot of work for lawyers.”

“If one of those things passes and it is in the constitution, it could cause a lot of trouble,” Collins said.

Mark Jaffe

Mark Jaffe

Mark Jaffe has covered energy, environment and government issues for The Philadelphia Inquirer, Bloomberg News and The Denver Post. He was a Knight Fellow at Stanford University and studied environmental economics as a Nieman Fellow at Harvard. He is the author of two books, "And No Birds Sing, The story of an ecological disaster in a tropical paradise" and "The Gilded Dinosaur-The fossil war between E.D. Cope and O.C. Marsh and the rise of American science."