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CU challenges local land-use powers

Cliff Thompson
Daily file photoThe Eagle River flows through Avon. The University of Colorado has mounted a legal challenge against the powers Colorado counties have to make land-use decisions. The suit could have an impact on how the county manages water.
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BOULDER – When Colorado University sued Boulder County during a 2001 disagreement over development and again this year on how and where to expand its south campus, the issue quickly rippled across the Continental Divide and into Eagle County. The new lawsuit and a previous district court decision challenge the legitimacy of the land-use regulations counties and towns across the state use to control projects proposed within their boundaries by other government agencies.The Boulder suit challenges the so-called “1041 permitting process” as unconstitutional because the state Land Use Commission does not meet to review regulations and has not done so since 1998. County governments are an arm of state government.A decision in Eagle County played a large role in validating the legitimacy of the 1041 permitting process. When the Homestake II reservoir project was proposed in 1986 by the cities of Colorado Springs and Aurora, Eagle County used the regulatory power to review and deny a permit for the huge lake south of Red Cliff. It would have sent nearly 25,000 acre-feet of water from the headwaters of the Eagle River to the Front Range.

That decision was challenged and it pinballed through the appellate system and in 1996, the U.S Supreme Court sided with Eagle County. That precedent, and the use of 1041s, has remained unchallenged until now. Without a 1041 permit a development cannot proceed. Authority questionedThe challenge is still in its early stages, Eagle County Commissioner Tom Stone said. He believes the state Land Use Commission will begin meeting, and that that will blunt the legal challenge, he said. “The net result will be zero,” Stone said. “We don’t need their advice or consent. We just need them to review it.”In the oft-times contentious Eastern Slope/Western Slope battle over water, 1041 authority has been seen by county officials and others as the primary tool for controlling how the Eastern Slope develops its huge water claims on the water-rich Western Slope.

Eagle County’s legal staff is girding against the challenge to the 1041 regulations, which are named for a Colorado House Bill passed in 1974. Eagle County is not part of the current legal challenge, but is warily watching the case because it could overturn 30 years of development regulation.”We’re working to protect the integrity of the 1041,” County Administrator Jack Ingstad said, but he did not provide the details of what was being done.’Statewide interest’The issue comes at a time when Eagle County recently amended its 1041 regulations and submitted them to the governor for review and approval – which has not yet happened.”We thought they had been approved,” Ingstad said. “The governor may have to convene the Land Use Commission to approve those.”

But the attorney who helped represent Eagle County in the Homestake II case, Barbara Green, said she is concerned about the suit.”It’s an enormous tool for managing impacts associated with growth and development,” Green said. “It’s one of the most powerful and one of the only tools local governments have to address impacts that may be caused by another governmental unit.”Green said that until county regulations are proven otherwise, they are considered valid. “It’s a matter of statewide interest,” she said. “So many counties and towns use the 1041.”Colorado Counties Inc., which represents counties statewide on policy and other issues, is taking a wait and see attitude.”We’re concerned,” said Gini Pingenot, a policy and research associate. “It’s early in the process. We’re just going to wait and see what happens next.”Staff Writer Cliff Thompson can be reached at 949-0555, ext. 450, or cthompson@vaildaily.com


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