Justice Rice on Property Rights
From Judgepedia
Justice Rice concurred with the majority opinion (authored by Justice Hobbs), which concluded, over the vigorous dissents of Justices Eid and Coats, that because a county was justified in implementing a complete moratorium on the development of property in that county, so that the impact of development could be studied, even though the county did not specify when the moratorium would end, and even though Colorado law, specially the Land Use Enabling Act only provided for a maximum moratorium of six months.
* ON PROHIBITING OWNERS FROM DEVELOPING THEIR PROPERTY:"The moratorium is an essential tool of successful development. * * * It counters the incentive of landowners to develop their land quickly to avoid the consequences of an impending land use plan for the jurisdiction.
* USING LAW FROM FOREIGN JURISDICTIONS: "Other states have recognized the broad authority of local governments to use moratoria in furtherance of growth planning."
* USING LEGISLATIVE INTENT TO INFER/IMPLY WHAT THE LAW IS: "Our General Assembly has made clear its explicit intent to promote well-planned growth through the Land Use Enabling Act."
Justice Eid authored the dissenting opinion, in which Justice Coats joined, which fervently disagreed with the extent to which the Majority Opinion granted local governments power over private property, specifically noting that "[t]oday, the majority approves a moratorium of limitless duration, one effective 'until formally terminated' * * * [which] exceeds the scope of authority granted to local governments."
* ON PRIVATE PROPERTY RIGHTS: "The right to use one's property is guaranteed by the Colorado Constitution * * * local governments like Pitkin County do not possess a general zoning police power- at least not before today."
* CRITICISM OF THE MAJORITY'S APPROVAL OF THE MORATORIUM: "[T]here is nothing in the moratorium itself that would indicate that it had an end date ; the end date was purely discretionary with the County Commissioners. * * * In other words, although the moratorium did in fact last ten months, there was nothing preventing it from lasting twenty or thirty months. * * * The six month time limitation on moratoria * * * should control in this case."
* CRITICISM OF THE MAJORITY'S APPROVAL OF THE MORATORIUM / DEFERENCE TO THE LEGISLATURE: "The majority attempts to craft a substitute moratoria power: one that is limitless on its face but in fact lasts for what a court, after the fact deems to be a 'reasonable' amount of time. The problem with the majority's substitute power is that it bears little resemblance to the authority actually granted local governments by the General Assembly."
* CRITICISM OF THE MAJORITY'S APPROVAL OF THE MORATORIUM / DEFERENCE TO THE LEGISLATURE: * * * [T]he authority that the court recognizes today is so limitless that it can only be described as a general zoning police power. This noting is entirely inconsistent with the Land Use Enabling Act, which expressly imposes a time limitation on the moratoria.
* DEFERENCE TO THE LEGISLATURE: "A moratorium that lasts longer than the six months provided in The Land Use Enabling Act may be a land use tool that counties need to manage growth. * * * But they need to get that authority from the General Assembly, not from us."
