Town of Telluride v. Lot Thirty-Four Venture, L.L.C.

JUSTICE KOURLIS delivered the Opinion of the Court.

[48] CHIEF JUSTICE MULLARKEY dissents, and JUSTICE HOBBS joins in the dissent.

[49] The majority interprets the anti-rent-control statute §38-12-301, 10 C.R.S. (1999), very broadly. It applies that construction to preempt the Telluride ordinance, and it holds that such preemption is permissible under the constitutional home rule provision, articleXX, section6of the Colorado Constitution. I respectfully dissent. [50] There is no sound authority for the majority's broad reading of the prohibition against rent control ordinances imposed by the state statute. To the contrary, the statute, its legislative history, and other legislative enactments support the conclusion that the legislature intended to prohibit enactment of a specific type of ordinance, and the Telluride ordinance is not within that category.

[51] The statute does not define the term "rent control," and the scope of the prohibition against rent control ordinances is not obvious from the face of the statute. Under such circumstances, it is appropriate to turn to other rules of statutory construction to determine the legislature's intended scope of the prohibition against rent control ordinances. , ,928 P.2d 1298,1302(Colo. 1996).

[52] I look first to the legislative history and then to other enactments by the General Assembly implicated by the majority's broad definition of "rent control." [53] The legislative history very clearly shows that the statute was intended to prevent the enactment of a proposed citizen initiative in the city of Boulder and any other similar rent control ordinances.

[54] Rent control ordinances evolved as a means to address rapidly rising residential housing rates caused by an inadequate supply of new housing stock. The housing stock problem was the product of depressed capital investment due to the high costs associated with new construction. Kenneth K. Baar, , 35 Rutgers L. Rev. 723, 726 nn. 4-5 (1983) (recognizing the "tightening of the rental housing market" as a function of increased development costs); Comptroller General, 11 (1979) ("[C]osts have increased dramatically during the past few years, particularly in the areas of financing, building materials, labor, and land. These cost increases, coupled with lagging rents and rapidly escalating costs, have created a situation where privately financed, multifamily rental housing is no longer considered a viable investment."), Baar, , at 726 n. 5.

[55] While identifying a need to control rental rate increases, these jurisdictions also recognized that rate restrictions would deter future investment, thereby exacerbating the housing stock shortage. Thus, all jurisdictions enacting rent control measures in the 1970's and the early 1980's expressly limited the restrictions to existing units by exempting new construction. Michael J. Mandel,Page 41 , 54 Brook. L. Rev. 1267, 1268 (1989) ("Under all existing laws, rent control regulates the rent on most apartments built before a particular date, but new construction is exempted from any rent regulation. . . . This apparently small difference makes a tremendous difference in the effects of rent control."); , New York, N.Y., Admin. Code § YY51-3.0.d (excluding all units built after a certain date); Santa Monica, Cal., City Charter art. XVIII, § 1801(c) (1979) [hereinafter Santa Monica Charter] (excluding all new construction).

[56] The General Assembly clearly was cognizant of these economic circumstances. As noted by Ted Strickland, the Senate sponsor of H.B. 1604, "The problem that we are having in our state in providing housing in any geographical location is a severe problem. . . . Inflationary costs, the high cost of money, the inflationary cost of construction, the inability for developers to buy money to build the facilities is causing a shortfall. As a result of that, rents are increasing." , 53d Gen. Assembly, 1st Reg. Sess. (Audio Hearing Tape Apr. 21, 1981) [hereinafter ] (statement of Sen. Ted Strickland, sponsor).

[57] In response to the rising rental rates, the citizen-sponsored Boulder initiative proposed that all rents would revert to a base rental rate equal to the rental rates in 1977. The owners could increase that base amount commensurate with cost of living increases without rent control board permission, and above the cost of living amount with board permission. The Boulder initiative "permanently exempt[ed]" all new construction, , 53d Gen. Assembly, 1st Reg. Sess. (Audio Hearing Tape May 7, 1981) [hereinafter ] (statement of Jay Drury, primary author of the Boulder initiative), and the initiative did not apply to those owners renting three or less units, Jane Cracraft, , Denver Post, Feb. 26, 1981, at 24; , , (statement of Barry Rosemond, appearing as an interested citizen, but further noting that he is associated with the Denver Tenants' Association) (comparing the Boulder Initiative to New York City's rent control provisions).

[58] In addressing the concerns created by the Boulder initiative, most of the testimony and statements by witnesses and legislators alike pertained to the problems associated with rent control in other cities, primarily New York City and cities in California.¹⁰An examination of the scope of rent control legislation in these cities, as well as the Boulder initiative that incited the action ultimately resulting in §38-12-301, aids an understanding of the General Assembly's contemporaneous understanding of the phrase, "rent control."

[59] "Rent control" as it was understood when the legislature acted had several common characteristics: the scope of rent control encompassed only existing units by exempting new development; hotels and other "transient" units were exempted; qualifying owners were not given choices with respect to non-rent controlling alternatives; the rental rate restrictions applied to all qualifying units based upon the characteristics or classification of a unit. , New York, N.Y., Admin. Code §§ YY51-1.0 to 3.0; Santa Monica Charter, §§ 1800-1805; Page 42 ,693 P.2d 261(Cal. 1984) (addressing the 1980 Berkeley rent control initiative). The literature produced around the time that the Colorado General Assembly enacted §38-12-301clearly illustrates that rent control in other jurisdictions, while exhibiting many minor differences, such as the calculation of cost of living increases, possessed these broad commonalities. , Baar, , (providing an exhaustive discussion of rent control laws in 1983 and before); Richard A. Epstein, , 54 Brook. L. Rev. 741, 742-43 (1988); Mandel, .

[60] There are substantial differences between the concept of rent control as it was understood by the General Assembly when it enacted §38-12-301and Telluride's Ordinance 1011. First, very different economic triggers account for the enaction of Ordinance 1011 and the concept of "rent control" in 1981. Second, because of the different triggers, Ordinance 1011 and the typical rent control ordinance evidence very distinct treatment of existing units and new development. Third, rent control measures conditioned applicability on a housing unit-characteristic determination. In contrast, Ordinance 1011 conditions applicability on a community-impact determination and permits the developer to elect among several mitigation measures including options that have no direct impact on rental rates.

[61] Addressing the first difference — the disparate economic triggers and corresponding intended effects — Ordinance 1011 arose from very dissimilar, if not opposite, economic conditions. Ordinance 1011, , § 3-710.A (Statement of Purpose). A shortage of affordable housing exists in Telluride because of a high degree of capital investment in development projects, rather than the stagnant investment that motivated rent control. Thus, the economic condition precipitating the creation of Ordinance 1011, and consequently, the intended effect of that ordinance — to mitigate the deleterious effects of high levels of economic development — are not within the scope of "rent control" as the General Assembly understood it.

[62] Second, unlike the concept of rent control which applied only to existing units by exempting new developments from the rate restrictions, section 3-740.A of the ordinance applies the affordable housing requirements to development. Ordinance 1011, , § 3-740.A. Thus, not one single housing unit that is subject to Ordinance 1011 would fall within any of the rent control laws considered by the legislature, and conversely, not one single housing unit subject to rent control legislation would have fallen within Ordinance 1011. This difference does not reflect a mere implementation choice but represents a fundamental distinction between the rent control model and the mitigation measures of today.

[63] Finally, Ordinance 1011 differs substantially from the scope of the phrase "rent control" as used in the legislative hearings with respect to the applicability criteria. Under rent control laws considered by the General Assembly, the characteristics of the rental unit, or its classification based upon its use, determined whether a rent control law governed the unit's rental rate. In this sense, those rent control measures were comprehensive, applying to all the units of a particular classification.

[64] Ordinance 1011, on the other hand, adopts an impact-based applicability scheme, premising the application of rental rate restrictions on the number of employees generated by a proposed development. Ordinance 1011, , § 3-740.A. With a few minor exceptions, applicability of the rental rate restrictions has no relation to the type or classification of a particular unit. § 3-730. Thus, Ordinance 1011 will burden the development of a retail mall, a hotel, or the construction of an apartment complex, assuming that they generate the same number of employees, with the same affordable housing requirements.

[65] Similarly, Ordinance 1011's incorporation of alternatives to rental rate restrictions in its mitigation model also differs substantially from rent control ordinances. Ordinance 1011, , § 3-750. By allowing developers a choice as to mitigation measures, including some alternatives that do not impose restrictions on the rental rates, the applicability of Ordinance 1011 is not a function solely of the classification of a unit; instead,Page 43the applicability can be a function of the choice elected by the developer.

[66] It is improper to construe these qualitative differences, as does the majority, as mere variations of rent control legislation. Ordinance 1011 emerged from very different economic circumstances and seeks to remedy a very different concern; it employs different applicability criteria and burdens different individuals or entities. These are fundamental structural differences that place the Telluride ordinance outside of the construct of the rent control model contemplated by the legislature. That the General Assembly did not reference these differences speaks more of the universally understood concept of rent control when §38-12-301was enacted than to any legislative intent to apply the proscription broadly in the future. Construing Ordinance 1011 in such a manner, as does the majority, in the face of the fundamental differences I have illustrated, impermissibly broadens the scope of rent control. I would leave such an increase in coverage to the General Assembly. [67] Further, the broad interpretation accorded to the concept of "rent control" by the majority impermissibly creates a conflict with other statutory provisions. A cardinal principle of statutory construction is to avoid constitutional infirmities by construing together statutory provisions that are . ,199 Colo. 7,11,604 P.2d 32,34(1979). §38-12-301declares rent control on private residential housing units to be a matter of statewide concern. On the other hand, §31-23-207provides that a municipality's land use plan shall address the "harmonious development of the municipality and its environs which will, in accordance with present and future needs, best promote health, safety, order, convenience, prosperity, and general welfare, as well as efficiency and economy in the process of development, ." §31-23-207, 9 C.R.S. (1999) (emphasis added). Colorado's Land Use Act further contains a finding and declaration of the General Assembly that "the rapid growth and development of the state and the resulting demands on its land resources make new and innovative measures necessary to encourage planned and orderly land use development" and "to provide for the needs of . . . residential communities. § 24-65-102, 7 C.R.S. (1999).

[68] The majority creates rather than avoids a constitutional infirmity. It does this by according the General Assembly's rent control statute an extremely broad reading and local land use regulation an extremely narrow scope. Instead, our usual principles of statutory construction require us to give effect, where possible, to the legislature's intent and purpose, reconciling seemingly conflicting provisions and adopting commonsense constructions. , ,955 P.2d 1023,1031(Colo. 1998).

[69] The General Assembly's planning, zoning, and development statutes contain a pervasive legislative policy choice in favor of local land use decisionmaking. For example, even though the legislature declared certain areas and activities to be matters of state interest, it left to the affected county or municipality the decision whether or not to designate and regulate such matters. ,199 Colo. at 12,604 P.2d at 34-35. When the local government determines to regulate such matters within its jurisdiction, it may do so despite the fact that another government entity will be required to meet its reasonable regulations. ,782 P.2d 753,760(Colo. 1989).

[70] In ,709 P.2d 928,936-38(Colo. 1985), we determined that authority existed in the local government to address matters not specifically mentioned in the planning, zoning, and development statutes, so long as the adopted local regulations address development impacts in a reasoned manner, accompanied by adequate procedural safeguards and sufficient regulatory detail. We have also observed that it is a "familiar concept" in land use regulation that "development pay all or part of its way." ,929 P.2d 691,698(Colo. 1996).Page 44

[71] The majority propels a conflict with Colorado's land use statutes and our precedent by ignoring the context in which the General Assembly adopted its rent control statute. It was addressing control of rents for the inventory of already existing housing. Such regulation, the legislature determined, would defeat the legitimate investment expectations of the owners of rental housing and lead to landlords being unwilling to continue making them available as rentals.

[72] In contrast, Telluride's ordinance addresses only new development that creates a demand for additional employees as a direct consequence. It is founded on specific matters of articulated local concern, particularly Telluride's concern for a harmonious community and affordable housing. Both are considerations specifically enumerated by the General Assembly as proper subjects of local legislation. The mitigation regulations Telluride adopted provide a developer with options for making affordable housing available for forty percent of the new employee demand generated by the particular development. As such, the regulation is within the General Assembly's provision for "affordable housing" to be a matter of local concern in regulating new development within the jurisdiction of the legislating municipality. §31-23-207.

[73] In matters of local concern, where a conflict between the state statute and the local legislation of a home rule government exists, the local provision prevails within the jurisdiction. ,960 P.2d 685,693(Colo. 1998). Here, an appropriate construction of the rent control statute would avoid any such conflict. [74] The majority applies §38-12-301to encompass Telluride's Ordinance 1011 — a measure that is qualitatively different from the concept of rent control. Thus, the majority's definition of "rent control" fails to give effect to the intent of the General Assembly when it proscribed rent control measures. Further, the majority's overly broad definition of "rent control" creates an irreconcilable conflict between the rent control legislation and a plethora of statutory provisions granting to local governments the power to implement and enforce land use measures. For these reasons, I respectfully dissent. [75] The majority also holds that rent control "falls within an area of mixed state and local concern and interest" and, therefore, Ordinance 1011 is invalid because it conflicts with §38-12-301. Maj. op. at 25. While I would not reach this issue because I would hold that Ordinance 1011 does not constitute rent control within the meaning of §38-12-301, my concerns with the conclusion of the majority compel me to dissent from Part IV of the majority's opinion.

[76] As stated by the majority, this court, in ,788 P.2d 764(Colo. 1990), recognized three broad categories of regulatory matters: (1) matters of local concern, in which local legislation supersedes conflicting state statutes; (2) matters of statewide concern, in which municipalities are without power to act absent state delegation; and (3) matters of mixed state and local concern, in which state statutes supersede conflicting local legislation. at 767; ,960 P.2d at 693. The fundamental inquiry in making this determination is an evaluation of the "relative interests of the state and the home rule municipality in regulating the matter at issue in a particular case." ,788 P.2d at 768. Four facors aid this inquiry: (1) "the need for state wide uniformity of regulation," (2) "the impact of the municipal regulation on persons living outside the municipal limits," (3) the traditional treatment of the matter, and (4) whether the Colorado Constitution commits a matter to state or local regulation. Finally, against the factors, the court in then evaluated the strength of the local interests. at 770 ("In contrast to the asserted state interests in forbidding municipal residency rules, the asserted local interests here are substantial.").

[77] I disagree with the majority's analysis of the state and municipal interests implicatedPage 45by Ordinance 1011. The majority ultimately concludes that "rent control represents an area of mixed state and local concern." Maj. op. at 24. Narrowly construed, I agree that rent control may be an area of mixed concern. Broadly construed, however, it is not. This ordinance is on the fringe of the majority's extraordinarily broad understanding of rent control. As so applied, it passes beyond the mixed area and into the area of local concern. I would hold that Ordinance 1011 is of local concern, and therefore, the ordinance supersedes §38-12-301to the extent that they conflict.

[78] The crux of my disagreement with the majority is its characterization of Ordinance 1011. The majority finds Ordinance 1011 to be economic legislation: "Even though the measure amended the Telluride Land Use Code, the ordinance does not dictate permissible uses of real property; rather, it dictates the rate at which the property may be used for a permissible purpose. It is, therefore, properly characterized as economic legislation." Maj. op. at 23 n. 9. To the contrary, I contend that Ordinance 1011 is fundamentally a land use regulation, an area that the General Assembly and this court have consistently recognized to be a matter of local concern.

[79] The majority rests its characterization of Ordinance 1011 on an overly restrictive concept of the definitional scope of "land use policy" by relying on the fact that Ordinance 1011 "does not dictate permissible uses of real property; rather, it dictates the rate at which the property may be used for a permissible purpose." Land use policy, however, is not limited to the mere definition of permissible uses; rather, land use policy encompasses conditions implemented within the rubric of zoning and planning decisions. Dedications, for example, have been classified as a land use policy despite the fact that dedications do not "dictate permissible uses of real property." §29-20-203(1), 9 C.R.S. (1999) (addressing dedications); §31-23-206(1), — 207, 9 C.R.S. (1999) (addressing "Planning and Zoning" by municipalities and directing municipalities to consider affordable housing in their "master plan for the physical development of the municipality"); ,929 P.2d at 698.

[80] Several considerations compel me to view Ordinance 1011 as a land use regulation. As the majority recognizes, Ordinance 1011 amended Telluride's Land Use Code. While I acknowledge that the existence of this fact is not dispositive, it is indicative of the intended functioning of Ordinance 1011 as a component of the city's overall land use policy.

[81] Further, the statement of purpose of Ordinance 1011 lays out the mitigative purposes of the legislation:

Recognizing that new development generates additional employment needs, and consistent with the desire to have new development mitigate impacts attributable to such development, the Town finds it necessary to require new development to provide affordable housing. Maintaining permanent and long-term housing in proximity to the source of employment generation serves to maintain the community, reduce regional traffic congestion, and minimize impacts on adjacent communities. Housing must be affordable to the local labor force in order for the local economy to remain stable.

[82] Ordinance 1011, , § 3-710.A.

[83] This purpose is consistent with powers granted to local governments by the Local Government Land Use Control Enabling Act of 1974 (Land Use Control Act), §§29-20-101to -205, 9 C.R.S. (1999). In the Land Use Control Act, the General Assembly declared:

The general assembly hereby finds and declares that in order to provide for planned and orderly development within Colorado and a balancing of basic human needs of a changing population with legitimate environmental concerns, the policy of this state is to clarify and provide broad authority to local governments to plan for and regulate the use of land within their respective jurisdictions.

[84] §29-20-102(Legislative Declaration). To effectuate this policy, the General Assembly granted to the local governments

the authority to plan for and regulate the use of land by:Page 46

. . .

(e) Regulating the location of activities and developments which may result in significant changes in population density;

. . .

(g) Regulating the use of land on the basis of the impact thereof on the community or surrounding areas; and

(h) Otherwise planning for and regulating the use of land so as to provide planned and orderly use of land and protection of the environment in a manner consistent with constitutional rights.

[85] §29-20-104(1).

[86] Ordinance 1011 requires developers within prescribed zoning districts to mitigate the effect of their developments through the creation of affordable housing units. As such, I view Ordinance 1011 as a component of the city's overall land use plan, and therefore, it should properly be characterized as land use legislation.

[87] With this distinction in mind, I now turn to the factors established under to ascertain whether Ordinance 1011 is a matter of state, local, or mixed concern. The majority's finding of a state interest in the first factor, the need for uniformity, is contrary to the General Assembly's consistent refusal to consider land use regulations as requiring statewide legislation. This is set forth clearly in the Land Use Control Act, §29-20-102, and has been implicitly recognized by this court, , ,830 P.2d 1061,1064-65(Colo. 1992) (discussing a home rule city's authority to control land use policy). Under the specific facts of this case, Ordinance 1011, to the extent that one can construe it as a rent control measure, is integrated into the larger context of Telluride's land use policy — an area demonstrably within the purview of local governmental regulation. As such, the state's interest in uniformity in this area is minimal. There may be a need for uniformity as the majority suggests, but the legislature has yet to assert that need in the area of land use policy.

[88] With respect to the second factor, the extraterritorial impact, the majority raises the specter of a "ripple effect" produced on surrounding communities. Maj. op. at 22. Specifically, the majority argues that "[r]estricting the operation of the free market with respect to housing in one area may well cause housing investment and population to migrate to other communities already facing their own growth problems." I find the majority's argument unpersuasive for several reasons.

[89] First, in , this court considered the extraterritorial impact of a city-imposed residency requirement for city employees. ,788 P.2d at 769. We rejected the state's argument that focused on the adverse economic impacts accruing outside of the city, primarily because of the speculative nature of the argument. I view the majority's extraterritoriality analysis to suffer from the same speculative defects.

[90] Second, the majority's extraterritoriality analysis strikes at the fundamental premise of land use planning, zoning, and development regulations by exalting free operation of the housing market over the police power of local government to shape the design of a community. The majority's rationale ignores the fact that the General Assembly, when considering the role of local government in land use control, has consistently decided in favor of local prerogative to employ market restrictions to manage growth. , §§29-20-102, 104 (Local Government Land Use Control Enabling Act of 1974). The majority's reasoning countermands the express finding and declaration of the General Assembly in the Colorado Land Use Act that Colorado's rapid growth and development demands new and innovative measures to encourage planned and orderly land use development and plan for the needs of residential communities. § 24-65-102(1); §29-20-102.

[91] Third, the majority characterizes Telluride's effort to reasonably mitigate the impacts of new development on its community as if it were imposing a burden on other communities. Yet, Telluride's ordinance is aimed directly at mitigating the effects on other localities of an ever-increasing public problem in mountain resorts. Workers cannot afford to live where they work becausePage 47the housing market left to itself prices out the laborers in favor of tourists and second home owners. Enabling people to live where they work is a key concept in reducing pollution, congestion, and demand on transportation infrastructure, such as new or expanded roads or transit to carry workers from their overnight abodes to where they earn their wages.

[92] The majority misanalyzes the extraterritorial impact of Telluride's ordinance. It has precisely the opposite impact: it attempts to contain the effects of growth within Telluride. The ordinance assists the livability of people and communities in the areas surrounding the city of Telluride by addressing the particular concerns that its geography and demographics present. This positive effect is of a different character than the negative effects previously recognized by this court to support a state concern determination. , ,673 P.2d 354(Colo. 1993) (finding that the imposition of viaduct construction costs on a railroad could negatively impact areas outside the municipality by reducing or terminating rail service).

[93] An analysis of the third factor also favors recognizing a local concern. As discussed , Ordinance 1011 is properly classified as a land use regulation. This court has consistently recognized that land use regulations are within the province of the local government. , ,830 P.2d at 1064-65; ,759 P.2d 664,669(Colo. 1988); ,620 P.2d 1060,1062(Colo. 1981).

[94] The factors do not support the majority's conclusion that the state's interest rises to such a level as to require the legal determination that the matter before us is one of mixed concern. On the other hand, and as stated by the majority, the Town of Telluride has significant interests in this mitigation measure: "Telluride . . . has a valid interest in controlling land use, reducing regional traffic congestion and air pollution, containing sprawl, preserving a sense of community, and improving the quality of life of the Town's employees." Maj. op. at 24.

[95] Because Telluride's interests so significantly outweigh those of the state, I would hold that Ordinance 1011 constitutes legislation of a matter of local concern. Therefore, to the extent that §38-12-301conflicts with the ordinance, the statutory provision is unconstitutional in violation of article XX, section 6. Telluride validly exercised its powers as a home rule city in enacting and enforcing Ordinance 1011. Therefore, I respectfully dissent from the majority's holding in section III.

[96] JUSTICE HOBBS joins in this dissent.

[97] I respectfully dissent and join in the Chief Justice's dissent. She has demonstrated how the majority's decision fails to comport with the powers of local government under Colorado's land use laws. The majority's holding rests on a broad construction of the rent control statute that does not take into account §31-23-207, 9 C.R.S. (1999), which provides that municipalities may address "affordable housing" in the context of their local land use planning regulations.

[98] Dedication of land and facilities, money in lieu of such dedication, and impact fees — when authorized by the legislature — are means that local governments can employ to mitigate the impacts of new development. ,929 P.2d 691,698(Colo. 1997). Impact analysis techniques reflect two trends in government policy toward land use regulation: (1) regulation should respond to specific development proposals, and (2) development standards should be predictable. Donald G. Hagman Julian Conrad Juergensmeyer, § 9.9, at 289 (2d ed. 1986).

[99] Telluride's legislation within the context of its planning, zoning, and home-rule authorities (1) addresses a defined impact of the particular development proposal, i.e., the generation of additional employees necessitated by the development, and (2) provides a reliable guide to the responsibilities and burdens of new growth in shouldering mitigationPage 48for forty percent of that impact. The ordinance applies only within Telluride's jurisdiction, takes into account its geographical and demographic milieu, assigns a community value to having workers live in the community in which they work, and addresses mitigation of pollution, congestion, and transportation infrastructure impacts that arise from workers living outside of the community and commuting thereto.

[100] Under the Telluride ordinance, the dedication of rent-controlled housing is not compulsory. A developer may satisfy the housing requirements by building or purchasing housing units, deed restricting existing units, conveying land for housing, paying a cash in-lieu fee, or offering a combination of one or more of these options. A developer who does not wish to dedicate property or covenant for rent-controlled housing may make an in-lieu monetary payment that Telluride will apply to affordable housing. In this regard, the Telluride ordinance operates like the in-lieu payments for schools and parks, instead of property and facility dedications, in connection with subdivision approval. ,929 P.2d at 700.

[101] The legislature's rent control statute, §38-12-301, 10 C.R.S. (1999), provides that "it is not intended to impair the right of any state agency, county, or municipality to manage and control any property in which it has an interest through a housing authority or similar agency." Thus, the statute contemplates that Telluride could establish an authority or agency to manage rent-controlled housing. Its land use powers and its status as a home-rule city provide it authority to adopt mitigation exactions, such as property dedications or in-lieu payments, for affordable housing within its jurisdiction. In my view, Telluride's decision to allow developers to manage or sell covenanted properties dedicated to affordable housing, and realize the proceeds therefrom, is a thoughtful — not illegal — option that serves the community's need while allowing property owners to benefit from the sale or rental of that housing.

[102] I conclude that the majority's decision disallows a reasonable option for the community and developers but does not foreclose Telluride's ability to redesign its ordinance under the housing authority or similar agency provision of the rent control statute.

[103] Accordingly, I respectfully dissent and join in the dissent of the Chief Justice.Page 398