Well, I’ve got a bit to say right now about a trend that I’m seeing in bills that are moving forward at the legislature. So apologies up front, this may be a rather lengthy post, and full of my opinion.
First, a new bill came out yesterday that was anticipated, we just didn’t know the details of what it was actually going to say. SB262 – Housing Affordability Modifications by Sen. Fillmore, co-chair of the CHA, would enact some new sections in LUDMA for overlay zones to create mixed-use, missing middle affordable housing and increased density. These overlays are optional for local governments, not mandatory. In many ways, this is similar to another bill that puts forward an optional overlay zone, Rep. Dunnigan’s HB37 – Utah Housing Amendments (which will be heard in committee tomorrow morning).
Another bill I want to call some more attention to is one that has been out for a while now, SB179 – Local Regulation of Business Entities Amendments. I’ve already opined in an earlier post that I didn’t think this bill was necessary because many jurisdictions are already doing something like the process it sets forth, or can do so on their own. I’ve just recently heard from the group that is advocating for this bill, and I’ll have more on that later in this post.
I am categorizing these bills together for a particular reason. First, I should say that I am not opposed to the things that these bills are trying to do – in fact, I’m pretty supportive. My issue is that these provisions, which are mostly optional (not SB179, though), are being put into LUDMA. Why is that a problem? I’ll tell you why I think it is.
LUDMA is turning into a behemoth of a code section. Over the last few years, the amount of text in LUDMA has grown by several hundred lines. If all the bills put forward this session pass, there will be several hundred more. And this seems to just keep going, year after year. I’ve written about this before, but I really do defy anyone from working their way through the entire LUDMA now, and determining whether their jurisdiction is complying with all its provisions. I’ll use the analogy again that I used before, that it’s really getting to the point that for a city or county to make sure they are in accord with everything in LUDMA now, it would be akin to having to have someone like a rabbi studying and interpreting the Talmud for them (someone suggested that I put this in our Utah cultural terms, so here goes – like hiring someone with seer stones to read and interpret the plates and helping us know if we’re doing everything we need to 😊).
When many of our communities have maybe a one- or two-person planning staff who are already fully engaged dealing with what comes through the door every day, where do they find the time, let alone the expertise, to peruse the ever-growing LUDMA? The city attorney can and should help, but they are often pretty fully engaged, too.
So, if I don’t disagree with what some of these bills are trying to do, but if I don’t want to see LUDMA grow so exponentially, what do we do instead? How about trying “education?” That is, in our land use training seminars and sessions, in our association conferences, in the training outreach by AOG and state agencies, let’s make local planners and elected and appointed citizens aware of these “options,” things they can and should do, and find ways to help them do them. We could have sessions where we lay out a process for interpreting uses in the code, applying to amend the code, overlays for housing affordability that could be adopted, and so on. We did that fairly successfully over the years with processes for consideration of conditional uses. But let’s not keep adding these kinds of things to the state code, particularly if they are optional matters.
Someone I talked to about this recently said, well, it may be optional today, but it wouldn’t take much to flip the switch and suddenly it is mandatory. True, and maybe that’s part of the purpose in doing this, as kind of a warning to local governments – look, here’s what you could do, and a bunch of you had better start doing it, or else…
All right, I’m wearing out my welcome on this topic, so I’ll get off it now. Just something I would ask all those involved in our legislative process to think about a little more thoroughly.
Now, I’ve got to get to the promise I made to Lee Sands at the Libertas Institute, who is advocating for SB179, that I would share their arguments in favor of the bill. He has given permission to put his well-reasoned email to me here in the blog, so, with some minor edits, here it is. As I said, I’m not against the concept of this, I just am concerned about adding so much stuff to the LUDMA. If we add to LUDMA for this process, is it possible we open the door for a number of other processes to be put into the code, thereby further enlarging LUDMA, making them mandatory (and enabling the potential legal action that could follow if every jot and tittle is not meticulously followed) and adding to the local officials’ workload? Enough. You get my point. Here’s Lee’s piece.
Clarifying the Classification Process:
While most cities allow residents to apply for zoning code amendments, few provide a streamlined way to determine whether a proposed business use fits within an existing category. This bill establishes a “request for classification” process, ensuring that residents can quickly get an answer to the question: “Is my business similar enough to an allowed use that I can proceed under that category?”
For example, if a zoning code permits “spas,” does that include a cold plunge spa? Or would a cold plunge spa need to go through the full amendment process?
SB 179 defines a process for making this determination, requiring cities to create a clear mechanism for classification requests (Lines 25-26, 33-39).
The inspiration for the “classification” language in the bill comes straight from Perry city’s zoning ordinance. Perry should be applauded for having this process in ordinance.
Ensuring Transparency for the Zoning Code Amendment Process:
Many municipal zoning codes include rather rigid language stating, “any use not specifically permitted is prohibited” at the beginning or end of a land use table or list. For those who are not land use practitioners or aware of the text amendment process, this implies that any unlisted use should not be contemplated. I feel this language is particularly hostile to new and innovative uses. I understand why this is. It’s impossible for a zoning ordinance to predict all possible land uses that may be appropriate for a given zone. For example, food trucks, mobile businesses, microschools, agritourism, etc.
SB 179 requires cities to explicitly reference the process for petitioning a zoning amendment when listing permitted uses, ensuring that entrepreneurs understand that their proposed use indeed has a chance. (Lines 59-61).
Providing a Predictable Timeline:
Currently, most zoning amendment processes lack a defined time frame, making it difficult for business owners to plan effectively. Entrepreneurs often rely on business loans, lease agreements, and regulatory approvals—all of which require predictable timelines.
SB 179 ensures that cities establish a clear process with defined timelines, providing certainty for businesses trying to navigate local regulations.
For these reasons, I feel SB 179 will help many cities, residents, and entrepreneurs. I hope that it prevents the need for more state-level bills to get crafted every time a new and innovative use comes around.
At the request of the League, we will be amending the bill to strike the 60 day timeline and instead require that cities simply come up with their own timelines and put them into ordinance.