Authority of Local Government
In Colorado, local governments are empowered to initiate a number of actions that can affect the cost and supply of housing in their communities. These actions, which may require a direct or indirect role for local government, encompass land use regulations, building code and design standards, and creation of special-use authorities, which can leverage additional resources for developing affordable housing.
States maintain the right under the U.S. Constitution to regulate land use, health, and public safety issues. In Colorado, state statutes relinquish that control to local governments who are empowered with the authority for adoption and enforcement of pertinent codes, standards and policies. Accordingly, critical steps in housing development such as zoning, building codes and infrastructure requirements all fall within the discretionary control of Colorado localities. This chapter is intended only to raise awareness of local legal authority. Specific strategies are found in the Land Use Policies and Strategies chapter.
DISCRETIONARY CONTROL OF COLORADO LOCALITIES
Land Use Regulations are laws that set a jurisdiction’s land use and development standards in regard to a wide variety of issues, including subdivision, annexation, and allowable land uses. While regulations are an integral part of a community’s planning process, regulations may also substantially increase time and costs required to build affordable housing.
Zoning Standards are used by local governments as a gauge for land use decisions and to help establish areas of uniform development. These standards, however, may inhibit a jurisdiction from providing a range of housing that meets its housing needs.
Building Codes and Standards are adopted by local governments to safeguard health, safety, property, and public welfare of a community.
Infrastructure including water, wastewater, sewer, streets, roads, parks, and schools falls under local control. Local officials can proactively address environmental issues while also containing the cost of housing in their communities.
PUBLIC HOUSING AUTHORITIES
A major benefit of housing authorities is the ability to use additional financial resources to devote to critical community projects in light of restrictions imposed on local governments by the TABOR Amendment. After enactment of TABOR in 1992, local government growth was restrained by requiring voter approval for any increases in revenues, spending, and additional debt. Housing authorities can be considered enterprises, rather than local districts, as long as their annual grant revenue from state and local governments is less than ten percent of their total budget. As government-owned businesses authorized to issue their own revenue bonds, housing authorities and urban renewal authorities can make expenditures that won’t be counted against the local or county government limits imposed by TABOR. Local interpretation varies, however, as it relates to TABOR restrictions.
Creating a Housing Authority
A Housing Authority (HA) can be created at the municipal or county level. The process is initiated when a petition sponsored by at least twenty-five residents of a community is filed with the local clerk indicating the need for such an authority. After concluding at a community hearing that an HA is needed, a resolution is adopted and forwarded to the mayor’s or county clerk’s office. Upon filing a signed certificate by the newly appointed HA board with DOLA, the municipal or county governing board can act as the board of directors of the authority, or appoint a board of housing commissioners. These officials and their successors are constituted as a housing authority, which is a body corporate and politic. Once established, an HA may employ a secretary who will act as executive director.
Powers of a Housing Authority
- Determine whether housing conditions are unsafe, unsanitary, or substandard and investigate methods for improving such conditions.
- Study and make recommendations on plans addressing the clearing, re-planning, or reconstruction where unsafe, unsanitary, or substandard conditions exist. Provide housing accommodations for low-income persons in cooperation with the local jurisdiction.
- Prepare, implement, and operate projects including the construction, reconstruction, improvement, alteration, or repair of any project.
- Assume by purchase, lease, or other means any project undertaken by any government or by the city or county.
- Act as an agent for the federal government in connection with the acquisition, construction, operation, or management of a project.
- Arrange with the city or with a government for the furnishing, planning, re-planning, opening, or closing of streets, roads, roadways, alleys, property options, property rights, or for the furnishing of property services in connection with a project.
- Lease or rent dwellings, accommodations, lands, buildings, structures, or facilities included in any project, and establish and revise associated rents or charges.
- Access buildings or property to conduct investigations or to make surveys.
- Sell, exchange, transfer, assign, or pledge property to any person, firm, corporation, the city or county, or government.
- Receive exemption from the payment of property taxes or special assessments to the state or any subdivision of the state.
Multijurisdictional Housing Authorities
Any combination of Colorado cities, towns, or counties may, by contract with each other, establish a separate governmental entity to be known as a multi-jurisdictional housing authority.
Powers of a Multijurisdictional Housing Authority
Plan, finance, acquire, construct/reconstruct/repair, maintain, manage, and operate housing projects and programs pursuant to a multi-jurisdictional agreement.
Plan, finance, acquire, construct/reconstruct/repair, maintain, manage, and operate housing projects and programs for employees of employers located within the jurisdiction of the authority.
Make/enter into contracts with any person, including contracts with state or federal agencies, private enterprises, and non-profit organizations also involved in providing housing, irrespective of whether such agencies are parties to the contract establishing the authority.
Employ agents and employees.
Cooperate with state and federal governments in all respects concerning the financing of such housing projects and programs.
Acquire, hold, lease (as lessor or lessee), sell, or otherwise dispose of any real or personal property, commodity, or service.
Condemn property for public use, if such property is not owned by any governmental entity or any public utility, pursuant to state authority.
Receive exemption of property taxes to the state or subdivision of the state for properties owned by the housing authority for renters at 50 percent or below median income.
- Per Statute 29-1-204.5(7.5) a multi-jurisdictional housing authority may levy, in all of the area within the boundaries of the authority, a sales or use tax, or both, at a rate not to exceed one percent, consistent with sales or use tax levied by the state. The tax imposed is in addition to any other sales or use tax imposed pursuant to law and exempt from the limitation imposed by section 29-2-108. The sales tax will be collected by the Department of Revenue, and must be approved by the eligible voters.
- Levy an ad valorem property tax (not to exceed five mills), a sales and/or use tax (the rate not to exceed one percent.
Establish development impact fees so long as: no portion of the authority is located in a county with a population of more than one hundred thousand and so long as the fee is not levied upon development, construction, permitting, or otherwise in connection with low or moderate income housing or affordable employee housing, and the rate is two dollars per square foot or less.
LOCAL GOVERNMENT AND FAIR HOUSING
Local governments are responsible for ensuring their jurisdictions comply with federal laws and regulations regarding Fair Housing. Failure to do so can result in costly litigation from a fair housing or false claims complaint. It may also result in your jurisdiction’s being declared ineligible to receive federal community development or housing funds.
Fair Housing is defined as the right of all people to be free from discrimination in the rental, sale, or financing of housing. Discrimination consists of any actions, omissions, or decisions made because of race, color, religion, sex, sexual orientation, disability, familial status, or national origin that limit housing choices, or that have the effect of limiting them.
Every jurisdiction that qualifies for its own distribution of federal HUD funds for community development and/or housing is required to complete an Assessment of Fair Housing (AFH).
The AFH is designed to help communities identify, among other things, fair housing issues pertaining to patterns of integration and segregation; racially and ethnically concentrated areas of poverty; disparities in access to opportunity; and disproportionate housing needs, as well as the contributing factors for those issues.
Upon completion of the AFH, each community must then incorporate it into subsequent Consolidated Plans in a manner that connects housing and community development policy and investment planning with meaningful actions to Affirmatively Further Fair Housing.
Finally, each community should maintain records of actions taken and outcomes towards Affirmatively Furthering Fair Housing to report to HUD.
Even those local jurisdictions that do not receive direct funding from the federal government are responsible for ensuring the availability of fair housing. Local regulations that impede fair housing, such as prohibiting rental housing in areas zoned as single-family residential, could result in fair housing litigation.
Many means of reducing impediments to fair housing are under the control of local governments, in particular land use regulations and zoning policies. Actions to reduce regulatory barriers to affordable housing often also improve Fair Housing, because racial and ethnic minorities, single-parent households, and disabled households are disproportionately low income. Regulations and policies that reduce impediments to fair housing may permit:
- Small houses (no minimum size required).
- Small lot sizes.
- Multi-family housing.
- Manufactured housing.
- Group homes for protected classes in residential areas.
- Accessory dwelling units.
- Mixed-use development.
- Lower parking standards for affordable housing, multi-family housing, group housing and special needs housing.
- Higher density in multi-family areas; and
- Growth management exemptions such as fee waivers.
Permitting affordable housing options in a variety of zoning areas helps to decrease the concentration of poverty into just a few areas. Such concentrations of poverty often have undesirable economic effects and result in blight; preventing the creation of such areas is essential to the vibrancy and health of a community.
BENEFITS OF HOUSING AUTHORITIES:
- Ability to apply for loans, grants, and contributions from government or other sources designed for specific authority purposes.
- Ability to acquire property by purchase, lease, operations, eminent domain, gift, grant, bequest or devise from any person, firm, corporation or city government.
- Ability to borrow money on terms.