Colorado cities are ready for a legal fight if necessary to stop a state push to overhaul local housing density rules and allow more tightly packed development along train and bus routes.
While many local governments support the goal of concentrating people in apartments around transit hubs so they drive less, mayors have objected to what they see as state leaders intruding on local power. It’s the same local control problem that led to the defeat of a similar state push last year in the Colorado legislature.
Lawmakers revived the transit-focused housing density bill last month and are moving it through the state House.
“If the state tries to force this issue, the courts will concur with us, as they have before,” Colorado Municipal League executive director Kevin Bommer said, referring to legal precedents that buttress municipal “home rule” authority over land use.
Determining where developers can build, and how densely, “is not a state power,” Bommer said. “That is a matter of local concern.”
This year’s legislation, carried by lawmakers in the Democratic majority with backing from Gov. Jared Polis, would require more than two dozen Front Range cities to plan for and meet goals for increased high-density development in designated zones near transit lines or face penalties. The proponents contend concentrated housing is necessary to tackle multiple challenges, including housing affordability, air pollution that causes climate change and traffic congestion.
Their bill would require cities and counties to designate areas as “transit-oriented communities” where local governments must increase high-density development along bus and rail routes. It would apply to Denver and many of its neighbors. It embraces the urban planning concept of clustering higher-density housing and shops within a half mile of bus and train stops.
“What’s driving us is that we are focused on affordability, sustainability, and livability,” Polis said in a recent interview. Cities that change zoning and increase high-density housing could benefit from state and federal infrastructure investments in transit-friendly development.
“It’s something that Colorado has been lagging in. We know that we need to up our game to provide more convenient, low-cost options to get where you want to go — and then more options to live within half a mile of those transit hubs,” Polis said.
“Options for people, not mandates”
He cast the state-led efforts to boost denser housing as creating “options for people, not mandates,” adding that “it also helps us protect open space if we grow in this way.”
But state lawmakers first must remove local zoning impediments, he said.
“You need to. One of the reasons that transit is not as successful yet in Colorado as it will be is because we don’t yet have that interjurisdictional development overlay,” Polis said.
That complicated phrase, Bommer said, “is code for state-mandated land-use planning — which is unconstitutional.”
The Housing in Transit-Oriented Communities legislation that lawmakers introduced on Feb. 20 as the 56-page House Bill 1313 would establish the “State Land Use Criteria for Strategic Growth Act” in Colorado law. It would direct 30 or so Front Range municipalities with populations over 4,000 and at least 75 acres of transit-related area to create maps for high-density housing.
Local governments would have to set “housing opportunity goals” to establish how many housing units could be built in their transit-oriented areas, using a formula based on an average density of around 40 units per acre. They would submit progress reports to the Colorado Department of Local Affairs on the housing construction to meet goals.
State officials could penalize cities that don’t comply by withholding money from the state’s Highway Users Tax Fund, which cities receive for maintaining roads and other infrastructure, and seek court orders to enforce high-density zoning. They’d also offer money for boosting housing density from a $35 million state fund.
The bill would require the allocation of state affordable housing tax credits to qualified developments within transit-oriented communities.
House lawmakers are debating the bill. Those on the House Transportation, Housing and Local Government Committee approved it on a 7-3 vote and the next hearing is set for Monday in the Finance Committee.
Last year, lawmakers bundled similar land-use reforms into legislation that also included measures to ban cities from blocking the building of accessory dwelling units, such as apartments above detached garages, and to eliminate requirements that housing developers provide parking. Those measures this year are broken into separate bills.
Mayors pledge to guard their local control
Mayors say they’re sold on the governor’s housing goals and better transit but want to make land use decisions on their own — and not be coerced under a threat of losing federal funds.
“Aurora is fine with the policy. The problem is the principle of sacrificing home rule,” Aurora Mayor Mike Coffman said in an interview, warning of “a bad path” for local government.
“You have to be jealous of the powers you have, even when there’s a policy you agree with,” Coffman said.
“I want to promote transit-oriented development to create walkable communities” — with Regional Transportation District buses running every 15 minutes, he said. “I’m going to oppose anything that violates home rule.”
Colorado Springs Mayor Yemi Mobolade, who recently urged lawmakers to pass construction defects law reform to spur new development, said their land-use overhaul “ignores years of work” his city has done to increase housing.
It also overrides “public debate to create a local plan that allows for greater density and more housing types while caring about the character of established neighborhoods.” And the state legislation fails to factor in “practical realities,” such as necessary new investment “for infrastructure, public safety, transit, parks, water and utility needs,” Mobolade said.
Colorado decisions “about how to handle growth” are best made by locals, he said. “The density conversation is different for every city.”
Lone Tree Mayor Jackie Millet pointed to booming dense development around RTD light rail stops in her city, for which the city invested $27 million and right-of-way land. “But we also are preserving the more traditional parts of our community for people who want that traditional lawn. … Some of the folks who have chosen to live here for a long time do not like all the density they are seeing.”
State leaders’ goals make sense but “we are already doing it,” Millet said. “The market will drive higher density. If you switch the zoning on land, it will automatically increase the value of the land.”
Legislators also ought to recognize that withholding money from the Highway Users Tax Fund as a penalty targets a crucial existing revenue source that cities rely on to maintain roads, safety, and stormwater drainage, Millet said. Reducing those funds “puts communities in very challenging circumstances,” she said.
“Use a carrot, not a stick,” she said. Any threat to remove federal funds “is very concerning to local jurisdictions.”
Denver leaders also have boosted density in parts of the city, allowing developers to install thousands of apartments.
But Mayor Mike Johnston sees “elements of the policies being discussed by the legislature that are inconsistent or in conflict with Denver’s local codes,” mayoral spokeswoman Jordan Fuja said. They use different terms to calculate density, for instance. Fuja said the administration was working with state leaders to resolve those inconsistencies in the bill.
“We know that housing availability is a priority across the state and Denver supports the efforts of other cities to invest,” she said. Johnston “is still evaluating the current proposed legislation and its potential impacts.”
Residents often oppose density
Front Range residents in Lakewood, Englewood, Denver, Fort Collins and Aurora have opposed high-density development in recent years, among many examples — especially where blocks of high-rise apartments would encroach on single-family neighborhoods.
In Fort Collins, nearly 10,000 residents supported the Preserve Fort Collins campaign that defeated city leaders’ efforts — twice in the span of about a year — to change zoning to allow higher-density housing.
Volunteer organizers at grocery stories easily collected signatures to repeal city overhauls. They’ve rallied residents around ill effects of population growth, such as increased traffic, scarce parking, safety risks for children on bicycles and the loss of privacy when apartments are built next to single-family homes.
Fort Collins Mayor Jeni Arndt, a supporter of the zoning reforms, watched those defeats. She recently drove through Windsor, 17 miles southeast of Fort Collins, and saw Fort Collins police cars parked there at night and heard about Fort Collins school teachers who live there and commute. Fort Collins’ population growth now is flat, she said, “because it has become so unaffordable,” with an average home price around $550,000.
“Living closer together in a more transit-friendly way also would fit into our climate goals and our water savings goals,” Arndt said.
But the mayor declined to take a position on the state-led push.
That’s not true of Preserve Fort Collins, which is lobbying at the state level against three housing measures, director Ross Cunniff said.
He warned against “importing Denver into Fort Collins.”
While denser housing “sounds noble,” building new apartments concentrated within a half-mile radius around transit stations in Fort Collins would ruin existing low-density neighborhoods, said Cunniff, a former city councilman. Affordable housing is necessary and Preserve Fort Collins supports that, he said.
“But if density equaled affordability, then San Francisco and New York City would be the most affordable cities in the United States,” he said. “Density does not equal affordability. And more growth is not going to solve the problems that growth caused.”
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