specially concurring.
While I believe the litany of purposes in article XX, section 1,9 for which home rule cities are empowered to "condemn and purchase," and especially its catch-all provision for "any other public utilities or works or ways local in use and extent," might at one' time have been legitimately construed much more narrowly, I also believe that time has passed. I agree with the majority that longstanding precedents in this jurisdiction support its conclusion that the creation of open space is a lawful, public, local, and municipal purpose for which Telluride's right to condemn property, even outside its territorial boundaries, is constitutionally guaranteed. None of the parties has asked us to overturn any of those precedents.
I write separately merely to emphasize what I consider to be the import of footnote 8 of the court's opinion. As the court notes, our holding that the legislature cannot pro*172hibit the exercise of constitutional home rule powers, regardless of shared state interests, does not suggest that the legislature cannot regulate the exercise of those powers. I understand the court's decision today to turn on the fact that section 838-1-101(4)(b), C.R.S. (2007), prohibits home rule cities from condemning property outside their territorial boundaries for open space, without the consent of the property owner. Rather than mere regulation, rationally related to shared state interests, this amounts to a complete abrogation of the right to condemn, the very essence of which is the right to take property without an owner's consent.
Article XX's grant of this power to home rule cities, however, does not purport to designate the exercise of the power to condemn exclusively a matter of local interest. As we have noted with regard to the power to legislate generally, certain matters that are of local concern, permitting a municipality to legislate, may also involve legitimate statewide concerns, permitting the state to legislate as well. See City & County of Denver v. Qwest Corp., 18 P.3d 748, 754 (Colo.2001). While we have held it to be within the state's power to preempt a municipality's power to legislate in areas of mixed state and local concern, see Bd. of County Comm'rs v. Bowen/Edwards Assocs., Inc., 830 P.2d 1045, 1056-57 (Colo.1992), we have also made clear that the state cannot completely abrogate a municipal power that exists through direct constitutional grant, rather than only indirectly, through the municipality's power to legislate. See City & County of Denver v. Bd. of County Comm'rs, 782 P.2d 753, 762 (Colo.1989) ("The powers granted to Denver in article XX, section 1, do not prevent [the General Assembly] from regulating the activities identified in that section.").
The distinction between regulating and actually prohibiting, although difficult to define with precision, is widely accepted. Seg, eg., 9 McQuillin Mun. Corp. § 25:48 at 181-34 (8d ed. rev.2005). Although the power to regulate invariably entails a certain degree of prohibition, as long as legislative or administrative limitations are reasonably tailored to advance the public welfare and do not absolutely abrogate competing rights, some prohibitory effect is tolerated as both necessary and acceptable, in a host of contexts. See, e.9., Blue Sky Bar, Inc. v. Town of Stratford, 203 Conn. 14, 523 A.2d 467, 471 (1987) ("Prohibition of an incident to or particular method of carrying on a business is not prohibition, but rather it is merely 'regulation'."). I believe the regulation/prohibition dichotomy provides the appropriate basis for challenges to the state's authority to infringe on powers directly granted to home rule cities by the state constitution.
It seems clear to me that the state has a cognizable interest in regulating the acquisition of property, beyond their own boundaries, by so many home rule cities. That interest, however, cannot permit the state legislature to absolutely prohibit the exercise of a constitutionally granted power. Because I believe section 38-1-101(4)(b) does precisely that, I concur in the majority's assessment that it cannot stand.
. Colo. Const. art. XX, § 1.