New Garfield County housing regulations not ‘a taking’ of property rights
Glenwood Springs, CO Colorado
GLENWOOD SPRINGS, Colorado ” The Garfield County Attorney, in a memo county commissioners voted to release on Tuesday, wrote that the county’s new temporary housing regulations do not constitute “a taking” of one’s property rights.
Garfield County Commissioner John Martin asked for County Attorney Don DeFord to look into that possibility about a week after commissioners approved the new housing rules on a 2-to-1 vote in early April. Those new housing regulations took effect Monday.
Commissioners Martin and McCown, both Republicans, voted in support of the new rules, while Commissioner Tresi Houpt, a Democrat, voted against them.
Those zoning changes generated a large amount of controversy as commissioners considered whether to approve them earlier this year.
They clear the way for natural gas companies to establish small temporary housing units for up to eight essential workers without having to obtain a special use permit from the county commissioners. The county calls that process “use-by-right.”
Companies would still have to notify the sheriff’s office and area fire protection districts of occupancy of the small temporary housing units and comply with about 20 performance standards mandated by the county. They would also have to have a surface-use agreement with the landowner, according to previous reports.
Some residents who criticized the new rules said they possibly allow oil and gas companies to place small temporary housing facilities on their land over their objections, violating their property rights.
DeFord wrote in his memo that he did not “believe that the ‘small temporary housing facilities’ regulation constitutes a regulatory taking of any parcel, taken as a whole.”
DeFord wrote that temporary housing regulation does not impose additional restrictions on the use of the surface property since the regulations do not require for such facilities to go up. He also noted that those facilities may only be built “with the acquiescence of the surface owner” or through a court determination.
“The surface owner retains the right to challenge the placement of housing in court just as the mineral interest owner has the right to seek a declaration allowing the placement of such a housing,” DeFord wrote.
DeFord also wrote that the Colorado Attorney General’s Office has stated that a permit to drill issued by the Colorado Oil and Gas Conservation Commission “neither permits nor regulates employee housing.”
He added that the commissioners should realize a permit does not “imply a grant of authority” for a company to place temporary housing on a permitted well site. Under current state law, mineral owners only have a reasonable use of the surface to drill for minerals below the surface.
“The right to place such housing is independent of the issuance of such a permit,” DeFord wrote, citing Colorado case law. “I have found no case law that determines that the location of employee housing on the property of a surface owner is a necessary and reasonable use. However, actual litigation may result in such a finding.”
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