Hotline to the Council: Mark Wallach - State Bill - SB23-213

The conversation we are going to have on April 20 regarding Governor Polis’s housing bill, SB23-213, has, to a considerable extent, been preempted by the position of the City Council’s Intergovernmental Affairs Committee, and likely to be supported by a majority of the members of Council. The Committee has adopted a position of “Support, while requesting amendments.” The scope of that position is unclear. Staff has proposed a number of amendments to improve the bill and make it more adaptable to the particular interests of the City of Boulder. What is not clear is what happens if the Council majority’s proposed amendments are not adopted. Are we expressing support for the bill no matter what its final provisions are, or will we oppose the bill if those amendments are not enacted? 

I know that this legislation is near and dear to Governor Polis, but I suggest that the interests of the City of Boulder – which should be the exclusive interests of this Council – outweigh the more political considerations of promoting this statewide legislation (there goes any hope of an invitation to the Governor’s year-end holiday party). 
 
More significantly, I am concerned with our transactional approach to our Home Rule authority. Under the state constitution, a Home Rule city, such as Boulder, can operate as it wishes so long as it does not violate a superseding state law. Two weeks ago, this Council very much desired to be permitted, under that Home Rule authority, to have the right to stand up safe injection sites. This week, in order to obtain drastic changes to our housing policy that would be extraordinarily controversial if proposed by this Council, we want to surrender that authority and have the Governor to do it for us. 
 
This is contrary to the way we should deal with these issues. If there is a desire among my colleagues to permit triplexes, quadplexes or more within our residential zones, or to adopt any of the other provisions of the state bill, they should propose the appropriate city legislation, permit staff to do its analysis, enact such legislation and be judged by the community for those decisions. That is what being a Home Rule municipality entails. Asking the Governor to override our municipal authority is an abdication of the City Council’s responsibilities. What if we had a different governor who supported state legislation diminishing a woman’s right to choose? What if the state decided that we have too much Open Space and we should dedicate half of it to housing? Or that Boulder’s 55-foot height limitation should be overruled so that we could build the type of very tall buildings we see in Denver? How would we respond to these usurpations of our Home Rule prerogatives? Or does none of that matter, as long as we get the result we want?

A number of our proposed amendments to SB23-213 are quite helpful, and some have been adopted as the bill has been amended (kudos to Carl Castillo and our lobbying team). But they are still being proposed in support of a bill that eviscerates our Home Rule authority. And for those amendments not adopted by the legislature, what then?
In addition, at least in its current form, SB23-213 appears to be in direct conflict with the Boulder Valley Comprehensive Plan, the document that is the fullest expression of how this community wishes to develop Boulder going forward. Keeping development compatible with neighborhood character? Forget it. There is no such thing anymore. The state provisions will now govern neighborhood density and character. 

The entire purpose of exercising Home Rule authority is to make our own decisions and minimize state interference in our affairs. Until now, that is. Now, in order to obtain the housing policies that are desired by some (but which probably would not survive a vote by the community) we are abandoning our right and ability to make those decisions and literally begging the state to take control of our local land use affairs. It is no wonder that the Colorado Municipal League (a 100-year-old association of Colorado cities, including Boulder) and a host of individual cities throughout Colorado, have found SB23-213 to be deficient, at least in its current form.

Of course, there is a housing crisis, and of course we need to address it. And we are doing so. Boulder Housing Partners, our housing authority, is the largest residential landlord in Boulder, and is developing even more affordable housing at a rapid pace. Would that the rest of Boulder County and the state would be similarly aggressive. The East Boulder Subcommunity Plan will generate a great deal of additional housing in that area, along with increased density. We already contemplate increased density along transit corridors. We are finally beginning to analyze the housing potential of the North Planning Reserve and even the municipal airport. We have not solved the problem of affordability, but we are working hard to make things better. We are doing so because we know it to be the right thing to do, not because the state tells us to do it. 

One of the premises for abandoning local control is that we need to become a denser, and presumably more affordable, city (this is contrary to all actual experience in cities in the real world, but never mind). So, in that spirit here is today’s quiz: what do Houston, Phoenix, Dallas, Atlanta, New Orleans, and Salt Lake City all have in common? Answer: they are each less dense than Boulder’s 4,000+ residents per square mile. The notion that Boulder is an exemplar of suburban sprawl falls in the face of reality and argues against abandoning our Home Rule authority in service to this bill.

If the state wishes to incentivize the creation of affordable housing, I am strongly in favor; Boulder will more than hold its own. But I cannot support the state controlling that most fundamental right of self-governance: the right to determine for ourselves how our land is used, and our community developed.