By Sam Weaver
Last month, I detailed in my column the outside forces that restrict Boulder City Council’s ability to advance important goals (“City Council retreat is a negotiation about deploying resources,” Jan. 19). Today I’ll examine one substantial class of barriers — legal preemptions — and opportunities to eliminate them.
Merriam-Webster defines preemption thus: “a doctrine in law according to which the legislation of a superior government (such as a state government) supersedes that of an inferior government (such as a municipal government) in conflicts of law.” Colorado’s Legislature maintains many laws preventing cities from implementing measures supported by most of their residents. Existing state preemptions prevent city action on rent stabilization, public banking, real estate transfer taxes and pesticides. Also preempted until very recently were local regulation of firearms, plastics, petroleum extraction, and minimum wages.
The canonical argument against local authority is to prevent “a patchwork of local regulations,” a phrase ripe for inclusion in drinking games for legislative spectators. The honest translation: “keep your laws off our profits.” An appropriate balance should be maintained between local and state control, but preventing cities from passing health and affordability regulations popular with residents should be done sparingly.
Current leadership in the statehouse and governor’s office have taken sensible steps to restore some local power to cities in Colorado regarding regulation of firearms, plastics, petroleum extraction, and minimum wages. These steps over the last few years are laudable, but we should ask for and expect more local autonomy concerning pesticide regulation, rent stabilization, municipal banking, and real estate transfer taxes. A common legislative strategy used recently establishes statewide regulatory “floors” (e.g., ban Styrofoam containers) while allowing localities to go further (e.g., ban plastic straws). This thoughtful approach limits the most grievous harms statewide while allowing local laws to be customized by communities.
How can the city and concerned residents help remove further preemptions? Boulder’s legislative agenda advocates forcefully for local authority, and resident and councilmember testimony in support of specific bills are crucial to their passage. This session, SB22-131 by Senator Jaquez-Lewis and others employs the floor-plus-local paradigm for powerful pesticides, regulating their use statewide near schools and youth facilities while removing preemptions on additional local controls. This measure is under attack from industry groups even though exemptions are included for farming uses, so vocal Council and resident support is important. Lend your voice to help advance this important legislation.
Another area of pressing concern for Boulder is affordable housing. Rent stabilization as an affordability tool has been banned in Colorado since 1981. This broad preemption prevents most types of market management and has threatened many affordable housing programs. In 2021 a measure passed clarifying that affordable housing programs like Boulder’s don’t violate that preemption. This year an additional measure could allow some local control of mobile home pad rents. While both these steps signify progress, there is no justification for preventing broader development of local city rent management policies. As former Councilor Adam Swetlik and his co-authors wrote in these pages (Feb. 1: “Put rent control back on the table for affordable housing conversation in Colorado“), the state rent stabilization preemption should be abolished. Rent stabilization isn’t a silver bullet for housing affordability, but Colorado cities should have that option. Local voters need the authority to adopt programs to alleviate housing costs for their renters similar to what St. Paul, Minn. voters recently passed. Press City Council and state legislators to remove the rent control preemption.
In a couple of areas in which preemptions have previously fallen, Boulder should act urgently. Re-adopting sensible firearm regulations is in process following the repeal of that preemption in the wake of the King Soopers killings, which is especially meaningful for our community. However, Boulder has not yet taken advantage of the 2018 repeal of the preemption on local minimum wage laws. Hopefully the county chooses to move quickly on this crucial issue, but if not, it’s time for Boulder to act decisively the way Denver has. In 2019, Denver adopted a minimum wage higher than the state’s requirement and has recently raised that wage further. Given that Boulder is the seventh most expensive housing market in the country, it’s critical to discuss following Denver’s lead.
State preemptions are usually bad for Boulder. We should fight to repeal those we can and take full advantage when barriers to city action fall.
Sam Weaver served on Boulder’s City Council for eight years.
