Chinle, AZ asked in Civil Litigation for Colorado

Q: Can Park County close all short term Rentals (530)? Could this be unconstitutional or considered “regulatory Taking”.

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1 Lawyer Answer
Nelson Patrick Boyle
Nelson Patrick Boyle
  • Englewood, CO
  • Licensed in Colorado

A: It depends. If this is related to a worldwide pandemic, in which the county is exercising its Constitutional power to protect the public health, the answer is likely yes to your first question. The Colorado Supreme Court has not weighed in directly on the constitutionality of the various public health orders related to the Covid-19 Pandemic. Pennsylvania's court upheld a statewide order and Wisconsin's court recently struck one down. Constitutional rights come into conflict at times. For instance, everyone has a right to free speech but they cannot yell fire in a crowded theater (if there's no fire). This is an oft-cited example of the so-called police power (the power of the state to protect the public health and safety) coming into conflict with the right to free speech. The police power wins because there's a reasonable basis for deprivation of the speech right. And in the theater/fire example, there would not be a right to compensation for the deprivation.

It remains to be seen if the Colorado public health orders will be upheld as constitutional, whether the United States Supreme Court will weigh in on the question now that 2 states have decided the question differently, and whether, a business or property owner could be compensated in the event of deprivation of the right to enjoy one's property under a public health order. I'd bet that the orders are upheld, Wisconsin was wrong, and a property owner cannot get compensated. It's hard to imagine how the public health orders could possibly be unconstitutional since they are based on a reasonable public safety purpose. Even if a reviewing court disagrees with the decision, the question isn't whether it's right. The question is whether an objectively reasonable person could make the decision to issue the public health order. That's a huge mountain to overcome given the reality of the Pandemic.

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