The Rise of Land Use by Mob Rule in Northern Colorado

As a real estate attorney, I try to monitor major land use issues that come up in Northern Colorado. In recent years, there has been an interesting trend – land use decisions by mob rule. What I mean by “mob rule” is action by the citizens of the municipality to nix land developments they don’t like, via ballot initiatives. The ballot initiatives basically preempt new land developments that would otherwise be possible under the municipality’s existing land use regulations. I can think of a few recent examples:

• In 2017, Colorado State University completed a new on-campus stadium to replace Hughes Stadium, which was located on the western edge of Fort Collins. CSU then entered into a contract with a national company to develop the Hughes site, mostly for housing. Certain Fort Collins citizens opposed this idea. They organized a ballot initiate to rezone the property as “open space” and require the City of Fort Collins to attempt to buy it. The voters said yes, despite widespread acknowledgment that the City needs more housing. Now the City is struggling with what to do with the site.
• In 2022, the Town of Windsor’s Downtown Development Authority proposed the development of empty parcels in downtown known as the “backlots,” which had served as informal parking for many years. Windsor residents did not like that idea and voted to rezone the parcels as “permanent parking,” effectively stopping the development.
• Voters in Timnath will soon decide whether to amend the town charter to prohibit nets and fences more than 65 feet high. The sole purpose is to prevent Topgolf from building a new facility in Timnath.

It is questionable whether these efforts are legal. Regardless, the trend should be very worrying to anyone who cares about private property rights or the rule of law. The voting public (i.e., the “mob”) is not beholden to anyone. What is to prevent the mob, acting via the ballot box, from rezoning as “open space” the site of any development they do not like? This trend certainly makes northern Colorado less attractive for future housing developments (which are desperately needed), because land developers cannot rely on the existing land use regulations when investigating their next project. It is also bad for the municipalities, because they are exposed to liability for inverse condemnation and other litigation. Finally, the “mob’s” short-circuiting of the land use code is inconsistent with the purpose of land use regulations – the purpose is to facilitate the orderly development of land for the benefit of current and future inhabitants – not prohibit future inhabitants. Mob rule also bypasses the land use code’s ample opportunity for citizens to weigh in on major developments with public comment, while leaving the ultimate decision in the hands of elected officials.

On the Topgolf matter, I hope the voters in Timnath see the light and vote “no,” but expect they will say “yes.”