If Gov. Jared Polis really wants to create more affordable housing, he ought to set aside his misguided attempt to override local land-use regulations statewide – and instead demand fellow Democrats in the legislature simply reform construction liability laws.

Exposure to runaway litigation over even minor flaws in home construction has chased a lot of builders out of the market for more modestly priced condominiums – once the starter home of choice for many of the state’s first-time buyers. Fine-tuning the laws that can trigger an avalanche of lawsuits would be a boon to building more affordable housing.

Making the changes may require political muscle. Standing in the way will be the trial lawyers’ lobby. Some of their ilk make a mint off of construction-defects lawsuits, and they carry a lot of clout at the Capitol, particularly in the governor’s party. But if the governor really wants to expand the state’s stock of affordable housing, he’ll use his own clout as governor and as his party’s standard bearer to clear a path.

And yet, as noted by the Colorado Chamber of Commerce’s new business news service, The Sum & Substance, at least one bill now gaining momentum in the legislature could lead Colorado in the opposition direction. It would foster litigation over single-family homes.

House Bill 23-1192 in fact could put the chill on the single-family home market in the same way the ironically named Construction Defect Action Reform Act put the crunch on condo construction. That law, passed by the legislature in 2001, was intended in part as a buffer against frivolous lawsuits. But it was later amended and wound up unleashing unwarranted litigation over condos’ defects.

The new legislation would do the same for single-family homes by making lawsuits over their construction defects as lucrative as they now are for condos.

Condos assure lawyers and their plaintiffs a bigger payday because of their sheer scale, housing multiple units. HB 1192 ups the ante for houses.

It does so by lowering the legal standard for plaintiffs’ attorneys to invoke the Colorado Consumer Protection Act. That allows more plaintiffs to seek bigger damages against builders by reclassifying their disputes as violations of deceptive trade practices. The bill lets plaintiffs seek treble damages, or three times the value of actual damages – as well as attorneys’ fees.

While the bill also addresses other, unrelated areas of the law, like price gouging and antitrust actions, its provisions expanding the state’s consumer protection act are a reckless overreach.

The act is intended to rein in swindlers who knowingly defraud unwitting consumers. It’s not meant for the people who build our homes using myriad subcontractors, one of whom might make a mistake.

Never mind, for the time being, the concerns HB 1192 also raises about further congesting our state’s courts with more litigation, as well as further dampening Colorado’s overall business climate. Just think about the punishing impact of erecting another barrier to the construction of single-family homes – in a state whose soaring real estate prices attest to a shortage of housing stock.

At the very least, Gov. Polis should demand the Colorado Consumer Protection Act provisions be stricken from HB 1192 – under threat of vetoing the entire bill. Then, he should turn his attention to reforming the ultimately inadequate “reforms” of the Construction Defect Action Reform Act. That could jump-start condo construction again.

The governor may find that the path to affordable housing doesn’t require trampling local zoning authority. He only has to stop trial lawyers from trampling homebuyers.

Denver Gazette Editorial Board