“[A] municipality certainly need not wait for more accidents to happen before addressing a perceived danger.” Opinion. Condominium owners in Dillon were parking on a road that is a public right-of-way. Dillon passed ordinances to improve a bike lane, drainage and traffic safety and gave the police chief the power to designate no-parking zones on any of Dillon’s right-of-way streets. Citing safety concerns, Chief did so on the road where the owners were parking . The owners successfully sued, claiming the ordinances were an unconstitutional abuse of Dillon’s police power by reducing property values despite less burdensome alternatives. The Court reversed, holding that the proper test for constitutional due process challenges to ordinances is whether an ordinance has a reasonable relation to public health, safety, morals, or welfare. The burden of compliance is not a factor.
Tag Archives: Ordinance
Town of Dillon v. Yacht Club Condominiums Home Owners Association, Steve Delaney, and Robert R. Duncan, 2014CO37 (May 27, 2014)
“If angels were to govern men, neither external nor internal controls on government would be necessary.” Federalist Papers #51. This seemingly modest case raises complicated questions about the separation of powers. At issue were two citizen-initiated proposed ordinances in Aspen and whether they were “legislative” or “executive.” Only legislative acts are proper subjects of voter initiatives. Administrative acts, which are executive in nature, are not permissible initiatives. Legislative acts establish generally applicable rules that weigh broad policy considerations. Executive acts are case-specific, discretionary and typically require specialized knowledge. The Court held, over two dissents, that the initiatives here were impermissible because they were specific proposals on the location, design and construction of a road, and thus, administrative.
Jamie Webb, Jeffrey Hermanson, and Michaleen Jeronimus v. City of Black Hawk, 2013CO9 (February 4, 2013)
The history of gold, bicycles and casinos meet at the confluence of Gregory Gulch and the North Fork of Clear Creek. Black Hawk banned bicycles blocking riders from passing through. If a Home Rule ordinance is not strictly a matter of local concern, and conflicts with state law, it is unconstitutional. Here, the Court held the matter was a mix of state and local concern because the ban had an extraterritorial “ripple effect” on non-residents, such as blocking access to Central City. The ban failed the conflict test because bicycling is a protected mode of transportation within Colorado, and state law limits bans unless an alternative route within 450 feet of the banned route is provided for bicyclists. There was no alternative route as required by CRS 42-4-109. Although CRS 42-4-111 permits local regulation of bicycles, Black Hawk’s ban was struck down for conflicting with state law.
Nature causes disasters; humans just fail to prevent them. Case in point: Hurricane Katrina. So, when Ouray reviewed the plans of a Developer to build in an area prone to flooding from a diverted natural waterway, it found the risk to be a “geologic condition” or a “natural hazard.” They required Developer to take significant mitigation measures to which Developer objected and then challenged in court under CRCP 106. The court of appeals rejected Developer’s challenge because Ouray had the authority and discretion to enforce a code requiring flood mitigation to preserve the public’s health, safety and welfare, even though some risk came from a structure built by Ouray. As a matter of municipal litigation practice, the court also made a specific point about not taking judicial notice of ordinances not included in the record. Ouray’s denial of Developer’s application was upheld.