HomeMy WebLinkAboutMinutes - Legislative Review Committee - 02/02/1996 -r
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LEGISLATIVE REVIEW COMMI~~EE MEMBERS
Revised:February 3,1996
Council Members
Alan Apt Legislative Review Committee Chairperson (970)221-6505
Ann Azari Mayor 221-6505
Bob McCluskey Council Member 221-6505
Staff Members
Guy Boyd Administrative Assistant,Poudre Fire Authority 221-6570
Pete Dallow Director of Administrative Services 221-6797
Molly Davis Deputy City Clerk 221-6516
John DeHaes Special Projects Advisor,Light and Power 221-6703
Susanne Edminster Transportation Services Policy Analyst 224-6049
Stewart Ellenberg Risk Manager 221-6774
Marty Heffernan Assistant to the Director of Cultural,
Library and Recreational Services 221-6064
Alan Krcmarik Finance Director 221-6788
Blair Leist Legislative Coordinator/Assistant to the
Director of Administrative Services 221-6796
Gale McGtha Miller Water Quality Technical Manager 221-6231
Deryle O’Dell Community Affairs,Police Services 221-6840
Rondall Phillips Director of Transportation Services 221-6615
Steve Roy City Attorney 221-6520
Tom Shoemaker Natural Resources Director 221-6263
Michael Smith Water!Wastewater Utilities Director 221-6681
Liz Stroh Integrated Resources Manager 221-6522
Tom Vosberg Policy Analyst,Community
Planning and Environmental Services 221-6224
Kevin Wilson Fire Marshall,Poudre Fire Authority 221-6570
Brian Woodruff Environmental Planner 221-6604
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Legislative Review Commiftee
Council Member-Staff Meeting
Meeting Minutes for February 2,1996
Council Aftendance:Alan Apt
Staff Attendance:Gale McGaha-MiIler,Jaime Mares,Kevin Wilson,Deryle O’Dell,Liz
Stroh,Marty Heffeman,Tom Vosburg,John DeHaes,Blair D.Leist
(recorder).
Legislative Updates
A.Water Issues--Gale McGaha-Miller
1.Land Exchange Proposal
The Natural Resources Advisory Board does not support the legislation as written;
consequently,consensus was not reached.
Action:The issue will be taken before Council on February 6th for direction.
2.HB-1074 Concerning Certification of Water Treatment Plant Operators
Requirements for certification are sunsetting and legislative discussions at the
state level are centering around either eliminating the requirements and the
continuing education credits or at the minimum making them voluntary.Water
Utilities believes that CEUs should remain in place.Reasons include risk factor
without training and minimal cost of certification.Water Utilities recommends
supporting legislation that requires certification.
Action:Gale will draft a letter for the Mayor’s signature supporting
legislation that requires certification and continuing education
credits.
3.SB-64 Concerning Instream Flows
SB-64 primarily deals with mitigation of flows in regards to new projects.
Action:Natural Resources will provide an analysis of the bill and report
findings to the LRC.
B.118-1234 Concerning Retail Wheeling—John DeHaes
This bill has the ability to bind operating utilities and any utility that refuses to
deregulate can be sued.In previous action,Council adopted the principals outlined
by the Colorado Association of Municipal Utilities (CAMU)that supported further
study,not passage of a retail wheeling bill.Light and Power recommends opposition
to this bill because of its premature nature.
Action:Bob Kost will testify at the February 13th hearing and John Dellaes
will draft a letter to our legislative delegation and the members of the
Business Affairs and Labor Committee.
C.Transportation—Memo from Ron Phillips
Ron submitted a memo to the LRC outlining the issues regarding last years bill
HB95-1174 and this years SB96-l.Please refer to the attachment in this update for
specific information.
Action:Ron will draft a resolution for Council approval and provide to LRC
for review.
D.Land Use—Blair D.Leist
Letters have been previously delivered to Senators Shaffer and Matsunaka.At this
time no committee action has been taken on SB-69 (Norton Takings Bill).CPES
will continue to monitor the bills movement.
Action:No additional action at this time.
E.Telecommunications—Liz Stroh
The Congressional Telecommunications bill has passed.At this time it is unclear as
to what impact the bill will have on municipalities.
Action:An update regarding the impacts of the bill will be provided at the next
LRC.
II.Administrative Items
A.Rescheduling of LRC Meetings
Efforts are still on-going to reschedule the LRC meetings.
Action:Staff will be notified of meeting date changes.At this time the status
quo will be maintained for the schedule.
Ill.Other Business
A.None
IV.Adjourn
The meeting adjourned at 12:40 p.m.
Respectfully Submitted,
Blair 0.Leist
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C fØ4JJ Colorado Municipal League
1660 Lincoln Street,Suite 2100 •Denver,Colorado 80264-2101 •Phone (303)831-6411,FAX (303)860-8175
How SB 69 Tells Only Half of the Story on Takings
The drafter of SB 69 borrowed language selectively from a number of the prominent
takings decisions of the U.S.Supreme Court,sometimes even quoting these cases
verbatim.However,if the intent of the bill is to only reiterate what the constitution
already requires,then it does a poor job of it.The bill consistently tells only one side
of the story,and in reality changes many traditional common law principles governing
the legitimate use of the police power.Examples:
Page 2,lines 18-21 quotes Pennsylvania Coal Company v.Mahon,260 U.S.393 (1922):
“A strong public desire to improve the public condition is not enough to warrant
achieving the desire by a shorter cut than the constitutional way of paying for the
change.”However,the bill conveniently fails to quote Justice Holmes’observation in
that same case that whether a taking has occurred is a “question of degree”that “cannot
be settled by general propositions.”The drafter also failed to quote the Chief Justice
when he said,“Government could hardly go on if to some extent values incident to
property could not be diminished without paying for every change.”
Page 3,line II quotes Nollan v.California Coastal Commission,97 L.Ed2d 677 (1987)
in requiring an “essential nexus”between an exaction and the legitimate governmental
interest it is supposed to advance.However,by going on to suggest that only exactions
that advance “public health or safety”are legitimate (page 6,lines 4-8)the bill ignores
the following language from Nollan,“Our cases have not elaborated on the standards for
determining what constitutes a ‘legitimate state interest’or what type of connection
between the regulation and the state interest satisfies the requirement that the former
‘substantially advance’the latter.They have made clear,however,that a broad range
of governmental purposes satisfies these requirements,(citing prior decisions upholding
landmark preservation and “scenic zoning”).”(Emphasis supplied.)
In fact,none of the prominent recent cases have attempted to circumscribe the purposes
for which the police power can be exercised.However,SB 69 does,stating that some
exercises of the police power will be unlawfiul and/or compensable if not justified by “a
substantial threat to the public health or safety.”See:page 3,line 5;page 5,line 23;
page 6,lines 4-8.These provisions contradict a massive body of common law and
statutes that uphold the authority of local governments to regulate in the interest of the
“general welfare”under the police power.See,e.g.,Berman v.Parker,348 U.S.26
(1954);C.R.S.31-15-103.
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Page 2,lines 14-18 quotes directly from Dolan V.Tigard,129 L.Ed 2d 304 (1984)in
saying that property owners should not be required to “bear burdens for the public good
that should more properly be borne by the public at large.”The bill also makes liberal
use of the famous term coined in that case—”rough proportionality.”See:page 3,line
12;page 4,line 7;page 5,line 21;page 6,line 11.Dolan was an exactions case,
requiring rough proportionality between a compulsory dedication of land and the impact
of a proposed land use.However,SB 69 would take the concept of rough proportionality
much further,effectively setting it up as a test for any and:all property regulations of
general applicability,including those that apply to existing uses of property.See:page
6,line 7.
The bill would also apparently require rough proportionality to be established
“scientifically,”at least for those regulations that are based on threats to the public health
and safety (which seem to be the only kind this bill would allow;page 6,lines 4-13).
See:page 5,lines 21-26.This requirement flatly contradicts language in Dolan where
the court said that “no precise mathematical calculation”is required to establish rough
proportionality.
None of the prominent recent court cases on takings require land use regulations to be
supported by “substantial”evidence.This ambiguous new burden of proof on local
governments would purely be an invention of SB 69.See:page 3,line 15;page 5,line
19.
C fy[[Colorado Municipal League
1660 Lincoln Street,Suite 2100 •Denver,Colorado 80264-2101 •Phone (303)831-6411,FAX (303)860-8175
Two Key Constitutional Issues Raised by SB 96-69
Can the General Assembly force municipalities to submit to arbitration proceedings?
The constitutional authority for invoking arbitration in lieu o(judicial proceedings indicates that
arbitration is supposed to be a voluntary process.Cob.Const.Art.XVIII,Sec.3 provides:
It shall be the duty of the general assembly to pass such laws as may be necessary
and proper to decide differences by arbitrators,to be appointed by mutual agreement
of the parties to any controversy who may choose that mode of adjumnent.The
powers of such arbitrators shall be as prescribed by aw.(Emphasis supplied.)
To the extent SB 69 requires municipalities to submit to arbitration of takings claims,it cross
references to the procedures set forth in Uniform Arbitration Act.Incongruously,this law concerns
the enforcement of “voluntary written arbitration agreements,-C.R.S.13-22-202.SB 69 mandates
arbitration even in the absence of such an agreement.
There formerly existed in the statutes a “Mandatory Arbitration Act”but it was repealed in 1991.
Significantly,when the constitutionality of that statute was tested,it passed muster only because
the findings of the arbitrator were non-binding and the parties were entitled to a trial de novo after
going through arbitration.See:Firelock Incorporated v.District Court,776 P.2d 1090 (Cob.
1989).In contrast,SB 69 provides that the factual findings of the arbitrator must be confirmed by
the court,page 6,lines 4-10.
It is true that the Colorado Supreme Court has upheld another mandatory arbitration statute (C.R.S.
104-708 concerning personal injury protection benefits in private insurance contracts)but did so
only when the arbitration requirement was incorporated into a written contract anyway.State Farm
v.Broadnax,827 P.2d 531 (Cob.1992).
However,requiring a legislative body such as a city council to submit to arbitration may be a
different matter entirely because,in this situation,another constitutional provision comes into play.
Cob.Const.Art.V,Sec.35 provides:
The general assembly shall not delegate to any special commission,private
corporation or association,any power to make,supervise or interfere with any
municipal improvement,money,property or effects,whether held in trust or
otherwise,or to levy taxes or perform any municipal thnction.
Under this provision,the Colorado supreme court struck down a proposed municipal home rule
charter amendment that would have required a city to submit to compulsory,binding arbitration of
labor disputes.The court said that such a requirement would be unlawful as removing
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governmental decision m g from the aegis of elected represent{J~s.Greeley Police Union v.
City of Greeley,553 P.2d 90 (Cob.1976).See also:Cob.Const.Art.XXI,Sec.4.
Later,in upholding a grievance arbitration process that had been contractually agreed to by a
municipality,the court said,“Colorado courts have recognized distinctions between binding
arbitration and other types of decision-maldng and dispute resolution procedures that are not
unconstitutional,focusing on whether the procedure at issue removes ultimate decision-making
authority from elected officials.”City and County of Denver v.Denver Firefighters,663 P.2d
1032 (Cob.1983).
It is not entirely clear in SB 69 what the arbitration proceeding~set forth at p.4.,lines 20-26;p.5
lines 1-9 is supposed to accomplish.However,to the extent this procedure may be used to trump
the legislative decisions of elected officials or compel those officials to pay any money,it is
probably unconstitutional.
II.Can the mandates of SB 69 be applied to home rule municipalities?
SB 69 declares the bill to be a matter of statewide concern,page 2,line 21.Presumably,the
purpose of this language is to make the bill applicable to home rule municipalities.
On several occasions the Colorado courts have indicated that zoning and land use are matters of
local and municipal concern.As the court said in prominent case involving single family zoning
in Denver,“Denver is a home rule city (under Article XX,Section 6 of the Colorado Constitution).
As such,its zoning authority is governed by its own charter and ordinances....Implicit in this
constitutional delegation of authority is the recognition that the city possesses broad legislative
discretion to determine how best to achieve declared municipal objectives....The discretion of
a municipality is by no means absolute,however,but is subject to constitutional limitations
applicable to all governmental legislative decisions.”Zavaia v.Ciw and Counw of Denver,759
P.2d 664 (Cob.1988).
For other cases holding zoning to be a matter of local concern,see:Selbon v.City of Manitou
Springs,745 P.2d 229 (Cob.1987);Sherman v.City of Colorado Springs,680 P.2d 1302 (Cob.
App.1983);City of Colorado Sorinas v.Smartt,620 P.2d 1060 (Cob.1980);Roosevelt v.City
of Enalewood,492 P.2d 65 (Cob.1971);Moore v.City of Boulder,484 P.2d 134 (Cob.App.
1971).
Some specialized areas of regulation have been deemed to be a matter of mixed statewide and local
concern where the state is also shown to have some tangible stake in land use decision-making.
For example,where federal aid highway funds were at risk,the court held that regulation of
billboards along federal aid highways was a matter of mixed local and statewide concern,and a city
could not regulate billboards in a way that would jeopardize the flow of federal money to the state.
City of Fort Collins v.Root Outdoor Advertising,788 P.2d 149 (Cob.1990).Also,in particular
land use areas that have traditionally been subject to statewide regulation,e.g.oil and gas,mining,
etc.,the courts have deemed regulation to be a matter of mixed statewide and local concern,and
thus,while the municipality can adopt concurrent regulations,it cannot contradict the state’s
regulatory scheme.See,e.g.,Lundvail Bros.Inc.v.Voss,812 P.2d 693 (Cob.App.1990).
However,to the extent that SB 69 is apparently supposed to require mandatory statutory
procedures,standards of review,and remedies to an extremely broad array of municipal land use
and zoning decisions,it may violate constitutional home rule principles.
NEWS MEDIA ADVISORY
Important Legislative Hearing
Tuesday,Feb.6,1996
2:00 p.m
on
PRIVATE PROPERTY RIGHTS
Hear heart-rendering stories of government actions
toward private property
Moving --Touching --Emotional -Over-powering
AND TOTALLY SERIOUS
Testimony before the Senate Local Government Committee will include accounts from
property owners who’ve found their attempts to legally use their property hampered and
impeded by actions of government.At issue are local government actions that have:
•forced individual property owners to bear costs of public improvements that go far beyond
the scope of impact of their particular development.
•placed site-specific building moratoriums on property without prior notice and without
compensation to the land owner for the loss of the use of the property.
•arbitrarily denied permission for a business expansion after the property owner had met
costly preliminary demands.
•placed unreasonable building restrictions on homes located in remote areas,including
limiting the size of residential dwellings to 1,000 square feet.
Senate Bill 69,sponsored by Senate president Tom Norton of Greeley,protects private
property rights.It’s supported by the “Your Rights Count”Coalition,representing property
owners and business groups.Colorado’s cities and counties have mounted a no-holds-barred
effort to defeat this bill,and this first legislative hearing will set the stage for arguments from
both sides.
Location:State Capitol,Old Supreme Court Chambers,2nd floor,north end
Time:2:00 p.m.
For further information,contact:
Pete Webb/Barry Hawkins,Peter Webb Public Relations,790-8008
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FACTS ABOUT SENATE BILL 69
THE PROPERTY RIGHTS LEGISLATION
presented by the “Your Rights Count”Coalition
What is Senate Bill 69
SBÔ9 is legislation introduced in the 1996 Colorado Legislature to place in state statutes guidelines for enacting and
applying requirements regarding the right to own and use private property.Since private property rights are a
constitutional provision,it is appropriate for the Colorado Legislature to address the issue as a matter of statewide
concern.The bill prohibits Colorado cities and counties from adopting laws or policies which impair the use of
private property unless the use is a threat to the community’s health or safety.
What does this mean?
When local governments enact laws,regulations’,policies or requirements regarding private property,those
exactions must be linked to a legitimate government interest and must be “roughly proportional”to the impact of
the owner’s existing or proposed use.A local government cannot,arbitrarily,apply impedinients upon a property
owner which have no relationship to an intended use.-
Why do we need a lawlike 5369?
While most city and county governments conduct business in a thir and considerate manner,others have stepped
over the line.In those instances,particularly where small landowners have been involved,either financial or time
constraints have made it impossible to “take on City Hall.”
What else does the bill require?
SB69 puts in place a step much less costly that litigation,arbitration,to pursue claims.The ability to file a lawsuit
remains.
What happens to Kovernment’s role in 5369?
5869 does not remove government’s ability to plan,zone,require adequate drainage or conduct air quality studies.
What about sign codes?Sign codes are a business regulation,not a land use regulation.Local permitting of land
use is not affected in SB69 unless constitutionally protected rights and privileges are implicated.Health and safety
of citizens remains in government’s control.
Who supports 6869?
A host of property owners,small and large business pàople,farmers and others concerned about private property
rights have formed a coalition,“Your Rights Count.”was created by Colorado organizations whose members are
affected by government’s abuse of authority.Members include the Colorado Farm Bureau,Realtors,NFIB,home
builders,CACI and many individuals.
Who Opposes This Legislation?
The Colorado Municipal League and Colorado Counties,Inc.,are the known opponents.
Why Is It Opposed?
Some opponents claim they will be unable to use land policies to adequately address
growth issues and will expend large sums of money for compensation.
SB69 WILL CURB ABUSES.IT WILL NOT CAUSE HARDSHIPS FOR
GOVERNMENTS THAT USE REGULATORY POWERS REASONABLY AND
EQUITABLY.
STATEMENT OF RACHEL RICHARDS,PRESIDENT OF THE
COLORADO ASSOCIATION OF SKi TOWNS,
BEFORE TUE
SENATE LOCAL GOVERNMENT COMMIn’i≤E
OPPOSING SENATE BiLL 96-69
Thank you madam chairperson for this opportunity to address this
committee.My name is Rachel Richards.I am addressing you today as
the President of the Colorado Association of Ski Towns.The Colorado
Association of Ski Towns,or as we prefer to call it,“CAST”,is an
organization of 21 municipalities whose economy is largely dependent
upon tourism and skiing.Our member municipalities are a major
contributor to the state’s economy.While we may believe that we face
unique challenges,our concerns about Senate Bifi 96-69 are shared by
every municipality and local government in our state.
All communities in our state,to some degree or another,face
soaring taxes,an inadequate supply of available housing for all economic
groups,rising crime rates,increasing population,inadequate streets and
roads,decreasing services,decaying municipal facilities,and a myriad
of other problems attributable to growth.Local communities,through
their elected officials,best able to assess their problems and potential
solutions,have employed traditional tools available to them to address
these social ills:a)through the process of planning,b)enactment of land
use regulations,and c)by exercising their police powers for public
safety,health and general welfare.Senate Bill 69,if passed,would be
a large step in the wrong direction to help municipalities solve their
problems.The bill would dramatically diminish the effectiveness of these
tools.
Allow me to state up front that we acknowledge the need to protect
private property rights.We support recent court decisions that require
all government entities to carefully balance the needs of the public with
the rights of private property owndrs.CAST is concerned,however,that
Senate Bifi 69 will not achieve its stated purpose and will have serious
unintended consequences that have not been adequately considered.
In short,Senate Bill 69 has the potential to destroy the quality of
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life in communities throughout our .state and bankrupt our local
governmeiits.It is ironic that the bill’~undet conbsideration would place
upon local property owners and taxpayers the burden of paying for the
effects of local regulations enacted far the public good,yet there has
been no analysis undertaken of the fiscal consequences of the pending
bill.Make no mistake about it.This bill,if enacted,will cost your
constituents and all the taxpayers of our state millions of dollars.Dollars
that are desperately needed to address the real problems facing our
communities.
The bifi requires local governments to justify their government
interest in enacting local regulations affecting the use of private
property.This requirement alone will•add an immensefinancial burden
upon mi.inicipalities and encourage court challenges to most land use
regulations and regulations adopted pursuant to municipalities’police
powers.The “scientific evidence”.,which will become necessary to justify
all local legislation will be difficult to obtain,very expensive,and time
consuming.Even “scientific .evidence”will certainly remain subjective
and lead to the additional cost of paying for dueling experts.Proponents
of this bifi are frequently heard to complain about the current
bureaucracy and cost necessary to enforce current local regulations.
Senate Bill 69 will merely add to this bureaucracy and cost,not to
mention the time which will be wasted every time a developer initiates
a land use application.
Each of us surely has pride in our own community.Our values are
reflected in the character of the community in which we live.That
character,whether it be a resort community,residential area,or center
for agricultural,cultural or commercial enterprise,did not occur by
happenstance.Our local government leaders planned and adopted land
use regulations to maintain or change the character of our communities
as we desired.Many of these regulations required us and our neighbors
to sacrifice our personal needs for the good of the whole.This social
compact recognized the advantage to reasonable regulations on the use
of our propçrty.Why should we now be asked to pay.new developers
to maintain the character of our communities and to abide by the social
compact?Should residential homeowners be required to pay a neighbor
not to open ,a dog kennel if prohibiting such a use would diminish the
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value of his land?What would prevent owners of vacant land from
blackmailing local governments by proposing obnoxious uses of their
land and claiming that to prohibit such a use would devalue the use of
their land?Could not your neighbors claim that the highest and best use
of their land is a junkyard,a parking lot,an adult book store,or a high
rise apartment building?
Before voting for this bifi,please consider the cost to the vast
majority of property owners that are not developers.Most of us have
our most important investment in our homes.We rely on the current
zoning and land use regulations to ensure that the value of our homes
are not ruined by uncontrolled development or inappropriate uses by our
neighbors.The very quality of our lives is guaranteed by the
enforcement of land use regulations enacted pursuant to the police
powers of our local governments.These vested property rights must be
balanced against the need to protect the private property rights of new
developers.
Senate Bill 96-69 would give property owners the right to claim
compensation for ~~iy devaluation of their property resulting from a
violation of the act.Enforcement of this provision is through arbitration
and court proceedings.Every regulation that limits the use of property
has some theoretical impact on the value of property.For example,
height restrictions,side yard sethacks,and density limitations,affect the
value of property.If a municipality is unable to justify these sorts of
reasonable regulations,it will be open to damage claims.Just defending
such claims will be an administrative nightmare and very expensive in
staff time and court resources.Even if the claims are not the subject of
arbitration or litigation,the cost of paying for easements,right-of-ways,
trails,and impact fees for parking,affordable housing,schools and
parks wifi be enormous.Who wifi pay these costs?Your constituents
and local taxpayers -the same people who elected their local
government representatives to enact legislation deemed necessary for the
public safety,health and general welfare.This bill becomes,in effect,
an unfunded mandate on all existing homeowners and taxpayers.
As growth pressures continue throughout our state,there has been
growing acceptance that private development should pay its own way.
This has been accomplished in most of our communities by the
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imposition of impact fees and/or exactions on private development.
Senate Bill 69 does not magically extinguish the need to recover the
costs of new development,it simply transfers them from the new
developer to the existing taxpayers.I ask you,why should a community
that has fashioned and adopted regulations for its own protection be
required to pay to have a new development conform to those
regulations?
Many of the ski and resort towns in our state have enacted what
some might call burdensome regulations to ensure that the character and
scale of those towns continue to attract tourists and make them enjoyable
places to live and visit.Those regulations have not caused property
values to drop.Just the opposite is true.We know from experience that
zoning and reasonable land use regulations provide certainty and stability
in land use values.Which leads me to ask whether anyone has
considered what effect Senate Bill 69 wifi have on the value of property
if all land use regulations are subjected to the provisions of the act?
Colorado property owners currently face the multi-generational cost of
poorly conceived growth,declining quality of life,and community
character.If Senate Bill 69 becomes law,property owners will face the
very real possibility of the loss of their property values from uncertainty
and an inability to rely upon the planning that has been undertaken by
their municipal officials.
In sum,CAST urges each of you to oppose this bifi.The fiscal
impacts upon the taxpayers of our communities are unacceptable.If
enacted,Senate Bill 69 would require taxpayers to pay for the cost of
generating “scientific evidence”to justify all local legislation;the cost
of purchasing easements,right-of-ways,parlcs,and open space
traditionally provided by developers;the administrative costs of
processing claims,however frivolous,through arbitration and litigation;
and finally,the cost of paying claims based upon a showing of a short
term devaluation of property.Senate Bifi 69 attempts to overturn the
decades old evolution of the proper balance between private property
‘rights and the proper application of municipalities’police powers.This
balance allows all of us to consider the proper use of land beyond one
generation to ensure that the character of our communities will remain
for our children’s children to enjoy.
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Thank you again for allowing me to address you this morning on
this most important subject.
From:BYRON WEST.DIRECTOR to:GtoØI”Ilson Date:212196 Time:14:0t34 p,~,~2
AssaçIRTIaN HDQRTS I :L:2o222345?g 15:02 No.028 P.02
NATOA NFWS 71
The National Association of Telecominunicat ions Officers and Advisors r
1200 19th Street,N.W.,Washington D.C.20036 J~4
February 2,1996
•The Telecommunications Act of 1996.the first major overhaul of our nation’s
communications law,passed both the Senate and House of Representatives yesterday by
overwhelming votes.President Clinton is expected to sign the bill into law next week.
CONGRESS AFFIRMS LOCAL GOVERNMENT AUTHORITY
TO MANAGE PUBLIC RIGHTS-OF-WAY
The bill affirms the authority of local governments to manage public rights-of-
way and to charge fair and reasonable compensation for the use of those rights-of-way.Local
government efforts in the last few days were succcssliil in obtaining last minute changes in the
conference bill.These changes generally restored the gains that local governments had achieved
through House and Senate floor votes on the legislation last year
Local governments will now need to shift their attention to activities at the
Federal Communiuution3 Commission (1CC).The FCC lb sctjuhed ui ci.ntduct a number of
rulemaking proceedings to implement various sections of the bill,including the section
governing telephone company entry into the video market as “open video systems.”
Highlights of various sections of the bill follow.
Public Rights-of-Way (New Section 253 of the Cpmmunjcationi~Act )-Section
25 3(a)states that no state or local law or other legal requirement may prohibit or have the effect
of’prohibiting the ability of any company to provide any telecommunications service.The FCC
is authorized to preempt any statute,regulation or legal requirement that violates this provisic,n.
Section 253(c),however,exempts from these restrictions the authority of a local government to
manage its flghts-of-way and to require fair and reasonable compensation (on a competitively
neutral and nondiscriminatory basis).
Telco Entry into Cable (Section 302)-Under Section 302,telephone companies
providing video services are regulated according to the delivery system they use —wireless,
MMDS,cable,common carrier or “open video system.”Telcas would fall under the new “open
video system”(OVS)category of Title VI (cable)of the Communications Act if they alTer two-
thirds of their capacity to unaffihiated programmers and comply with other conditions.They
would law some Title VI reqniremenis at the federal level and may be required to pay fees in
licu of cable franchise foes but would not be required to obtain a franchise under Title Vi.The
conference report (in language added this week)confirms that opcrators of open video systems
are subject to the authority of local governments to manage public rights-of-way.Tmportant
requirements concerning QVS (including PLC)must be addressed by the FCC in implementing
this new section.
From:BYRON WEST.OIREC’TOR To:Scoff Wilson OsIc:2i219e T,mc:14:02:1?Page 2 of 2
•~SS0CIRTIoN HDQRTS TE(D0222345?s Feb 02ç~p 15:03 No.028 P.03
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Cable Entry into Tclccom (Section 303)-Section 303 restricts a local franchising
authority from regulating under Title VT of the Cominu ~ations Act the telecOmmunications
service~i offered by cable companies.The conference report confirms that local governments
may still mquire a cable company to secure a separate autho±atjc,n (as permitted under state ansi
local law)to offer these services.Section 303 aiso contains the PEG and I-NET exemption
which would allow local governments to continue to enforce PEG and 1-NET provisions in cable
franchises.
Cable Rate Renulation (Section 3011 -The rates for cable progran~Jiig services (CPS)
will be dcregulat.ed as of March 31,1999.The rates for basic service —the tier regulated by local
franchising authorities —will continue to be subject to regulation in areas where there is no
“effective competition.”The definition of “effective competition”has been expanded.Ei1~ctive
competition exists if a local telephone company,its affiliate or any other video progranlmjng
distributor using the facilities of the telephone company or its affiliate offers comparable video
programming services.Small system operator CPS rates arc deregulated immediately in
fr4nchi~c areas with 50,000 or fewer subsctiben.A small system operator is defined as an
operator that,directly or through an affiuiate,serves in the aggregate fewer than 1 percent of all
subscribers in the United States and is not affiliated with any entity or enttics whose gross
annual revenues in the aggregate excecd $250 million.A cable subscriber will no longer be able
to initiate a CI’S rate revicw by the FCC.A local franchising authority —alter receiving a
subscriber complaint —can initiate such a rcview.
Zoninu and Wireless Facilities Siting (Section 704)-This provision of the bill aflirms
that local governments have the authority to determine —in a reasonable and nondiscriminatory
manlier --Lhc placement of mobile services and wireless common carrier sites.This provision
prevents FCC preemption of these local government dccisioas over zoning except in limited
circuinstajices.Local govermncn(s may not regulate the placement of facilities on the basis of
the environmental effects of radio frequency emissions If the facilities comply with the FCC’s
regulations on such emissions.
DBS Re2ulatipn and Taxation (Sectjpfl~205 and 602)-Section 205 grants to the FCC
exclusive authority Lu regulate the provision of direct-to-home satellite service.Section 602 of
the bill prohibits local governments from taxing direct-to-home satellite service.The conference
report confirms that local governments may tax equipment sales and that the prohibition does not
apply to real estate taxes.
For additional infonnation,please contact Eileen liuggard at (202)429-5101.
C
Start of Item 54.
Message.Dated:02/01/96 at 1359.
Subject:T-Notes
Sender:Ron PHILLIPS /CFCS2/0 1 Contents:2.
TO:Blair LEIST CFC/0 1
Part 1.
FROM:Ron PHILLIPS CFC52/01
TO:DISTRIBUTION
Part 2.
RE:T-Notes:Update on “NB 95-1174”and SB 96-1
I.1996 Appropriation from State General Fund for State Highways (HE
95-1174 last year)
Mayor Pro Tern Gina Janett asked for an update on “HB 95-1174”,which was last
year’s legislation appropriating $7SM from the state general fluid reserves for
state highway projects.
Similar legislation for 1996 is still being discussed by the legislative
leadership and the Joint Budget Committee (JBC),but a decision has not yet
been reached on whether it will be introduced as a separate bill,or just be
made a part of the appropriations bill (the “long bill”).The amount being
discussed at this time for consideration in 1996 is S lOOM,an increase of 525M
over last years appropriation.
We will be drafting a resolution for consideration by the LRC and the Council
to officially request that the legislature change the restricted use of the
funds from just state highways to “regional priorities.”The legislative
leadership indicated to the Governor’s Blue Ribbon Panel On Transportation
Funding,and to the Colorado Transportation Commission,that they will only
appropriate state general fund monies for state highway lane miles.This
leaves our regional priorities of transportation demand management (TDM),
bikelane improvements,transit improvements,etc.out in the cold (cold to the
max today!).
2.SB 96-I--Reinstate the “Noble Bill”
Another resolution will be presented to the LRC and City Council to actively
support a SB 96-I sponsored by Sen.Ray Powers and Rep.Steve Acquafresca
reinstating the old “Noble Bill.”The bill allocates a portion of the
currently collected state sales tax to the Highway Users Tax Fund (HUTF).The
estimated 5140M to SI5OM per year proposed to be transferred is equivalent to
the estimated amount of state sales tax collected on the sales of automobiles
and auto-related accessories such as batteries,oil and tires.The revenues
would be shared on the 60-22-18 formula (60%state,22%counties,and 18%
0
municipalities).
There is likely to be some discussion on whether the HUTE revenues should
continue to be limited to highways,streets,and roads,or expanded to multi-
modal purposes including other transportation purposes as well as roadways.
Our resolution for LRC/Council consideration will be drafted to support the
expansion of purposes for which it could be used.Governor Rome pledged in
his State of the State speech to veto this bill if it reached his desk:
“We need to find a way to meet these (transportation)needs,but
whatever we do in this process should not take away from our other priorities.
This is why I will appose any effort to reinstate the Noble Bill.The general
fluid looks good now,but we don’t know what it will look like four years from
now.I don’t want to take money away from educating kids to fill our potholes.”
Interestingly,he does propose in his FY 96-97 budget continuing to set aside
$100 million out of the general fluid for state highway needs with no local
shareback.
End of Item 54.
Intray>