Polis' housing plan wins back state control in House but faces trouble in Senate

House Democrats have restored substantial portions of what had been gutted out of Gov. Jared Polis' housing proposal by the Senate, despite sources indicating the changes could doom the bill to failure.

At the behest of the bill's Democratic House sponsors, Reps. Iman Jodeh of Aurora and Steven Woodrow of Denver, the House Transportation, Housing and Local Government Committee added 15 amendments to the bill, and Senate Bill 213 won a 9-4 party-line vote from the panel. 

On Thursday, the bill won preliminary approval from the full House amind furious efforts by Republicans to stall or water it down. As of press time, it is awaiting a final vote in the House. 

Thursday night's action on the bill started with House Democrats approving a four-hour limit on debate, which grew by more than two hours after Rep. Marc Catlin, R-Montrose, asked for the 99-page bill to be read at length.

Republicans attempted 14 amendments, including one to restore the bill to its Senate version that was ruled out of order.

Woodrow told Colorado Politics Friday that "almost nothing" added to the bill Thursday was substantive.

"They were clean-up edits because of how quickly we had to put the bill together in committee," he said, noting people noticed language that had to be changed and had to take place through the course of several amendments.

The bill is substantially the same as it came out of the House Transportation, Housing and Local Government Committee, he added, with housing plans and assessments, strategic growth objectives, ADUs, transit-oriented and key corridors, and the role of DOLA. 

"I know the pace of this has frustrated some," Woodrow added, but this conversation has been going on for almost a year. "The bill that was introduced was stronger than what we currently have in the House. This is a compromise and we hope folks recognize that."

Kevin Bommer, executive director of the Colorado Municipal League, pointed out Friday that since it was introduced, SB 213 has been amended 80 times, including 27 times in the House.

"This was a bill that supposedly involved a lot of stakeholder meetings and discussion to get the perfect bill introduced at the end of March. I would submit 80 amendments, taking the bill from 150 plus pages to 39 pages and back up again, suggests it wasn't ready for prime time," he said.

Bommer said any amendment along the way, including those supported by CML, was substantive. Those amendments impacted municipalities and citizens, and as the bill stands Friday morning, SB 213 removes citizens' right to participate in land use decisions. 

That hearing came after a House committee put key provisions that had been removed from the Senate version, most notably state control of zoning, right back into the measure.

It was no secret that House Democrats planned to put back much of what had been taken out, but, by doing so, they set up a showdown with the Senate and potentially risk the governor's key signature proposal dying in the final days of the legislative session.

The House panel also restored several other concepts removed through Senate changes.

They included mandating that municipalities allow accessory dwelling units and requiring the Department of Local Affairs to develop a model code that municipalities would be required to use in developing denser housing in transit-oriented areas and "key corridors." The term is defined as areas within a quarter-mile of a road served by municipal bus service, and which would be identified by the state Department of Transportation.

Tuesday's initial hearing drew in municipal officials, who were angry the bill is going back to something resembling the original version, and housing advocates, including other elected officials, who praised House Democrats for the same thing.

The mayor of Centennial, Stephanie Piko, accused the House Democratic sponsors and the governor of abandoning good faith negotiations. Meanwhile, Colorado Springs Mayor John Suthers warned of "a period of long and contentious litigation if SB 213 becomes law."

"This notion you can remove the powers of home rule cities after 150 years of land use by calling it a matter of statewide concern is an issue that will be very hard to win in the courts," he told the committee. 

Suthers noted his community has its own housing plan that solicited feedback from residents.

"For the governor and legislature to decide they can do a better job, count me very skeptical," he said, adding the legislation will render local citizens largely voiceless in land use matters and weaken trust in government.

Kevin Bommer of the Colorado Municipal League said that, a month ago, he had testified on legislation his group could support.

It "sure isn't this bill," he said. 

Bommer offered a quote that he indicated will be exhibit A in the lawsuit that will inevitably come from SB 213 if it's enacted.

"Over 85 years of Supreme Court jurisprudence support local governments' ability and responsibility to enact zoning codes and land use ordinances that fit the needs of their communities. Not only is local governments' robust land use authority supported legally, it also makes sense from a policy perspective. A local government is elected to represent its community members and is ultimately responsible for preserving the character of the community."

The quote, from 2015, was from a legal brief filed by then-U.S. Rep. Jared Polis.

Municipalities want a partner in the state, not an adversary, Bommer added. 

Summit County Commissioner Tamara Pogue, who supported the introduced version of SB 213, warned the committee to "tread carefully with further changes to the bill."

The lack of affordable housing in her county is a crisis, she said. While the bill — before the House amendments — "may not represent all of our goals," it accomplishes several important strategies, including requirements on planning with climate in mind, she said. 

SB 213 also begins an important conversation on limited water resources, Pogue said, adding that allowing multi-family housing near transit and walkable commercial areas lessens traffic, reduces pollution, protects water and increases affordability.

Pogue also noted the last-minute changes planned for the bill could result in unintended consequences. Housing is a matter of concern both for local communities and statewide, and "we must find a balance" between those two areas, she said.

In a statement, Aurora City Councilman Juan Marcano said the housing shortage and affordability crisis is "growing more severe every day."

"It’s impacting Coloradans across the state. SB23-213 will provide an opportunity to do away with the dated, restrictive policies, often rooted in racism, that local communities have inherited over decades and that prevent us from creating truly inclusive and affordable communities,” Marcano said. 

The bill's next stop is the House Appropriations Committee and then the House floor. Assuming it wins approval from House Democrats, it will then head back to the Senate.

And that's where the real showdown begins, though Woodrow told Colorado Politics he believes enough Senate Democrats will back the changes to avoid that showdown.

"Everything we've done to this point has been in consultation with our allies in the Senate," he said. "There's obviously many moving parts to the bill, and with each different conversation, the calculus has to be adjusted somewhat. We are obviously paying close attention to that. We're not trying to set up a showdown."

Woodrow said they didn't restore all the up-zoning in Tuesday night's amendments. What was restored was certain local governments have to allow for ADUs and transit-oriented development. He said even those in the Senate who expressed reservations about state standards really like the ADUs or the transit-oriented development.

What they don't like, he added, is middle housing, such as duplexes, triplexes and fourplexes that would replace a stand-alone house — the Senate doesn't like the idea of someone telling a neighbor that a triplex is being built.

That's not in the bill anymore, he said.

The bill, as amended, restores minimum standards that municipalities set their own codes on ADUs, transit-oriented development and key corridors. It's only if they ignore the statute that the state model code, developed by Department of Local Affairs, goes into effect. 

"We're not trying to run fool's errand," Woodrow added.

Jodeh said the concern around middle housing is that someone wouldn't want a neighbor building a duplex on their property, but building a mother-in-law suite, pool house or casita, "you should be able to do that" under the design standards in place.

"The holistic approach with the entire bill, edited as it was last night, gives us a much stronger path in the Senate," she said.

Senate Democrats who view statewide control of local government zoning as unconstitutional are preparing for that showdown, with only a limited set of outcomes available.

The Senate could reject the House amendments and ask for a conference committee. That may be an exercise in futility, given that House Democrats are determined to allow for state control of zoning and there are Senate Democrats who are just as adamant that they won't support it. 

Sen. Rachel Zenzinger, D-Arvada, has said on several occasions that state control of housing, which she called unconstitutional, is her "bright line" and that she would not vote for the bill if it includes that provision.

Should she rally enough of her colleagues, the Senate could instead vote to adhere to its position, which several sources told Colorado Politics is the more likely move.

If the House does not recede from its position and revert to the Senate position, the bill dies on the calendar.