(1) Except as
expressly provided in section 29-20-104.2, section 29-20-104.5, and article 35 of
this title 29, the power and authority granted by this section does not limit any
power or authority presently exercised or previously granted. Except as provided in
section 29-20-104.2, each local government within its respective jurisdiction has
the authority to plan for and regulate the use of land by:
(a) Regulating development and activities in hazardous areas;
(b) Protecting lands from activities which would cause immediate or
foreseeable material danger to significant wildlife habitat and would endanger a
wildlife species;
(c) Preserving areas of historical and archaeological importance;
(d) Regulating, with respect to the establishment of, roads on public lands
administered by the federal government; this authority includes authority to
prohibit, set conditions for, or require a permit for the establishment of any road
authorized under the general right-of-way granted to the public by 43 U.S.C. 932
(R.S. 2477) but does not include authority to prohibit, set conditions for, or require a
permit for the establishment of any road authorized for mining claim purposes by
30 U.S.C. 21 et seq., or under any specific permit or lease granted by the federal
government;
(e) Regulating the location of activities and developments which may result
in significant changes in population density;
(e.5) Regulating development or redevelopment in order to promote the
construction of new affordable housing units. The provisions of section 38-12-301
shall not apply to any land use regulation adopted pursuant to this section that
restricts rents on newly constructed or redeveloped housing units as long as the
regulation provides a choice of options to the property owner or land developer and
creates one or more alternatives to the construction of new affordable housing
units on the building site. Nothing in this subsection (1)(e.5) is construed to
authorize a local government to adopt or enforce any ordinance or regulation that
would have the effect of controlling rent on any existing private residential housing
unit in violation of section 38-12-301.
(e.7) Notwithstanding any other provision of this section, a local government
shall not exercise the authority granted by subsection (1)(e.5) of this section unless
the local government demonstrates, at the time it enacts a land use regulation for
the purpose of exercising such authority, it has taken one or more of the following
actions to increase the overall number and density of housing units within its
jurisdictional boundaries or to promote or create incentives to the construction of
affordable housing units:
(I) Adopt changes to its zoning and land use policies that are intended to
increase the overall density and availability of housing, including but not limited to:
(A) Changing its zoning regulations to increase the number of housing units
allowed on a particular site;
(B) Promoting mixed-use zoning that permits housing units to be
incorporated in a wider range of developments;
(C) Permitting more than one dwelling unit per lot in traditional single-family
lots;
(D) Increasing the permitted household size in single family homes;
(E) Promoting denser housing development near transit stations and places
of employment;
(F) Granting reduced parking requirements to residential or mixed-use
developments that include housing near transit stations or affordable housing
developments;
(G) Granting density bonuses to development projects that incorporate
affordable housing units; or
(H) Adopting policies to promote the diversity of the housing stock within the
local community including a mix of both for-sale and rental housing opportunities;
(II) Materially reduce or eliminate utility charges, regulatory fees, or taxes
imposed by the local government applicable to affordable housing units;
(III) Grant affordable housing developments material regulatory relief from
any type of zoning or other land development regulations that would ordinarily
restrict the density of new development or redevelopment;
(IV) Adopt policies to materially make surplus property owned by the local
government available for the development of housing; or
(V) Adopt any other regulatory measure that is expressly designed and
intended to increase the supply of housing within the local government's
jurisdictional boundaries.
(e.9) The department of local affairs shall offer guidance to assist local
governments in connection with the implementation of this section.
(f) Providing for phased development of services and facilities;
(g) (I) Regulating the use of land on the basis of the impact of the use on the
community or surrounding areas;
(II) (A) The general assembly finds and declares that access to outpatient
clinical facilities providing reproductive health care, as defined in section 25-6-402
(4), is a matter of statewide concern and that, for purposes of zoning and other land
use planning, such facilities fall within the meaning of a medical office use, a
medical clinic use, a health-care use, and other facilities that provide outpatient
health-care services.
(B) For the purposes of zoning and other land use planning, every local
government that has adopted or adopts a zoning ordinance shall recognize the
provision of outpatient reproductive health care, as defined in section 25-6-402 (4),
as a permitted use in any zone in which the provision of general outpatient health
care is recognized as a permitted use.
(C) Nothing in this subsection (1)(g)(II) restricts or supersedes the authority
of a local government to enact uniform zoning ordinances and other land use
regulations that comply with this subsection (1)(g)(II).
(h) Regulating the surface impacts of energy and carbon management
operations, as defined in section 34-60-103, in a reasonable manner to address
matters specified in this subsection (1)(h) and to protect and minimize adverse
impacts to public health, safety, and welfare and the environment. Nothing in this
subsection (1)(h) is intended to alter, expand, or diminish the authority of local
governments to regulate air quality under section 25-7-128. As used in this
subsection (1)(h), minimize adverse impacts means, to the extent necessary and
reasonable, to protect public health, safety, and welfare and the environment by
avoiding adverse impacts from energy and carbon management operations, as
defined in section 34-60-103, and minimizing and mitigating the extent and severity
of those impacts that cannot be avoided. The following matters are covered by this
subsection (1)(h):
(I) Land use;
(II) The location and siting of energy and carbon management operations, as
defined in section 34-60-103;
(III) Impacts to public facilities and services;
(IV) Water quality and source, noise, vibration, odor, light, dust, air emissions
and air quality, land disturbance, reclamation procedures, cultural resources,
emergency preparedness and coordination with first responders, security, and
traffic and transportation impacts;
(V) Financial securities, indemnification, and insurance as appropriate to
ensure compliance with the regulations of the local government; and
(VI) All other nuisance-type effects of the operations described in this
subsection (1)(h); and
(i) Otherwise planning for and regulating the use of land so as to provide
planned and orderly use of land and protection of the environment in a manner
consistent with constitutional rights.
(2) To implement the powers and authority granted in subsection (1)(h) of this
section, a local government within its respective jurisdiction has the authority to:
(a) Inspect all facilities subject to local government regulation;
(b) Impose fines for leaks, spills, and emissions;
(c) Impose fees on operators or owners to cover the reasonably foreseeable
direct and indirect costs of permitting and regulation and the costs of any
monitoring and inspection program necessary to address the impacts of
development and to enforce local governmental requirements; and
(d) Impose fees to enhance emergency preparedness and emergency
response capabilities if a carbon dioxide release occurs. Allowable expenditures of
the fees collected include:
(I) Preparing emergency response plans for a carbon dioxide release;
(II) Purchasing electric emergency response vehicles;
(III) Developing or maintaining a text message or other emergency
communication alert system;
(IV) Purchasing devices that assist in the detection of a carbon dioxide
release;
(V) Equipment for first responders, local residents, and medical facilities that
assist in the preparation for, detection of, or response to the release of carbon
dioxide or other toxic or hazardous materials; and
(VI) Training and training materials for first responders, local residents,
businesses, and other local entities to prepare for and respond to the release of
carbon dioxide or other toxic or hazardous materials.
(3) (a) To provide a local government with technical expertise regarding
whether a preliminary or final determination of the location of an oil and gas facility
or oil and gas location within its respective jurisdiction could affect oil and gas
resource recovery:
(I) Once an operator, as defined in section 34-60-103, files an application for
the location and siting of an oil and gas facility or oil and gas location and the local
government has made either a preliminary or final determination regarding the
application, the local government that has land use jurisdiction may ask the director
of the energy and carbon management commission pursuant to section 34-60-104.5 (3) to appoint a technical review board to conduct a technical review of the
preliminary or final determination and issue a report that contains the board's
conclusions.
(II) Once a local government has made a final determination regarding an
application specified in subsection (3)(a)(I) of this section or if the local government
has not made a final determination on an application within two hundred ten days
after filing by the operator, the operator may ask the director of the energy and
carbon management commission pursuant to section 34-60-104.5 (3) to appoint a
technical review board to conduct a technical review of the final determination and
issue a report that contains the board's conclusions.
(b) A local government may finalize its preliminary determination without any
changes based on the technical review report, finalize its preliminary determination
with changes based on the report, or reconsider or do nothing with regard to its
already finalized determination.
(c) If an applicant or local government requests a technical review pursuant
to subsection (3)(a) of this section, the period to appeal a local government's
determination pursuant to rule 106 (a)(4) of the Colorado rules of civil procedure is
tolled until the report specified in subsection (3)(a) of this section has been issued,
and the applicant is afforded the full period to appeal thereafter.