Agenda - Planning Commission - 04/07/2016

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March 10, 2016 I Volume 10 I Issue 5 Zoning Bulletin court reasoned that the state had adopted an individualized approach to sex offender treatment, and that the Ordinance conflicted with such an individualized approach because it did not, on an offender -by -offender basis, consider "the nature of the offense, the treatment the offender has received, the risk that he or she will reoffend against children, and the evaluation and recommendations of qualified state officials" when deteiniining whether a sex offender could reside within the City. The City appealed the district court's ruling to the United States Court of Appeals, Tenth Circuit. The Tenth Circuit certified to the Supreme Court of Colorado the question of whether the Ordinance, which effectively banned certain sex offenders from residing within the City, was pre-empted by Colorado law. The Court's Decision: Judgment of district court reversed in part. Certified question answered in the negative. The Supreme Court of Colorado concluded that the Ordinance was not pre-empted by state law. In so holding, the court explained that to determine if state law pre- empts a home -rule city's ordinance, a two-step analysis is implemented: First, the court asks whether the issue the ordinance regulates is one of local, statewide, or mixed local and statewide concern. If the court concludes that the issue is of mixed concern, it then asks whether the ordinance conflicts with state law on that issue. If the ordinance does not conflict with any provision of state law, it is therefore not preempted. Here, the court, considered the following factors, in making a case - by -case determination as to whether the issue of sex offender residency (which the Ordinance regulated) was an issue of local, statewide, or mixed local and statewide concern: (1) the need for statewide unifor- mity; (2) the extraterritorial impact of the regulation at issue; (3) whether the matter has traditionally been regulated at the state or local level; (4) whether the Colorado Constitution commits the matter to state or local regulation; (5) the degree of cooperation required be- tween state and local governments for state sex offender regulations; and (6) legislative declarations on the issue of sex offender residency. The court concluded that, "[a]s in most cases, the issue of sex offender residency is not given to easy categorization." The court found that both the state and the City had interests in sex offender regulation —the state in the uniform application of sex offender laws in general and in preventing the potentially significant extraterritorial impacts the City's ordinance may produce, and the City in protecting its community and in controlling local land use. The court also found that the CSORA specifically contemplates deferring to local governments in some contexts. The court further found that, "importantly, the history of sex offender regulation and the degree of cooperation required between 4 ©2016 Thomson Reuters