Utah Land Use Politics Blog

Wilf Sommerkorn’s take on the latest in Utah land use politics and law

WILL THEY? OR WON’T THEY? ONLY THEIR OFFICIALS KNOW FOR SURE!

March 25, 2024

For the ULUI Spring Conference legislative update session last Friday, I subtitled the slide presentation “ Is This Really Gonna Work?”  This was in reference to several bills passed during the session that aimed more at collaborative, incentive-based measures to help housing affordability, rather than the more typical zoning-reform top-down requirements being passed elsewhere around the nation.  To see what I mean by this, take a look at the previous blog post and read over the first grouping of bills.

I felt somewhat vindicated in my thoughts about these bills when Katie McKellar, the DesNews’ previous writer on housing issues, wrote a piece titled Utah’s New Housing Experiment last week.  The subtitle to Katie’s story says, “Legislature creates arsenal of new tools to encourage increased supply of ‘attainable’ homes, aiming for prices around $350,000. Will it actually make a difference?”  (Katie now writes for The Utah News Dispatch, a relatively new service that is funded by grants and contributions and makes news stories available to all).

My thoughts on these bills, which set up new programs like FHIZ and HOPZ and provide new financing mechanisms for infrastructure and development, are that they are a great idea, but will they actually get used?  Will cities set them up, and will developers/builders actually want to use them?  Only time will tell.  Steve Waldrip, the Governor’s new Senior Housing Policy and Innovation Advisor, is optimistic from his conversations with those who would build such housing, and from communities that say they want more affordable options in their neighborhoods.

Gov. Cox, at the close of the legislative session, said,

“You’ve done some incredibly innovative things that I believe will transform our state and lead the nation,” Cox said on the House floor. “You have passed the largest housing attainability package in the country.”

Waldrip said,

“We feel confident that the majority of cities want to do the right thing: they want to provide housing for their people.” … He acknowledged that lawmakers’ approach this year largely trusts cities to act. “It really is in their court to take advantage of this.”

And most notable to me were these comments:

Dejan Eskic, a housing researcher with the University of Utah’s Kem C. Gardner Policy Institute who is also the chief economist for the Salt Lake Board of Realtors, said even though lawmakers maybe could have been more aggressive, he thinks their package of bills could help “move the football” when it comes to Utah’s housing issues.

Eskic noted lawmakers opted not to advance upzoning legislation like HB306. (note from me: this would have been more typical of zoning reform measures around the country)  That bill, which didn’t get a public hearing, would have categorized starter homes as a “permitted use” in Salt Lake, Davis and Utah counties, as well as cities with populations over 15,000. Essentially, it would have required those cities to approve newly built single-family homes that are sold at a price that is less than the area’s median price for that type of home. It likely would have hit pushback from cities and counties wanting to keep more control over their local zoning authority.

“You can always move the needle a bit more aggressively,” Eskic said, but he credited lawmakers with focusing on something that’s been a big barrier for both cities and developers: the cost of infrastructure (roads and sewer lines, for example) that have stood in the way of making many already entitled housing developments financially viable.

“The infrastructure (focus) was really progressive,” he said. “We’re probably not even realizing what a big deal it could be down the road.”

Both Waldrip and Eskic were at the ULUI conference last week talking about these issues.  So… will it work?  Enough to keep other more “aggressive” zoning reform measures from being adopted?

Time will tell, because these tools haven’t been tried before in Utah.

“I honestly don’t know,” Eskic said.  “Some cities will, and some cities will find every way to go around it.”

When pressed on whether cities will take advantage of these tools, given none of the bills contain teeth to force or require cities to use them, (House Speaker Mike) Schultz said, “We’re hopeful they do.”

“I’ve been told by several cities they’re actually excited about some of these things,” he said.

Schultz also acknowledged, though, that these are new tools and strategies, and it remains to be seen whether they will eventually help solve Utah’s housing crisis.

“Will it have an impact? I truly believe it will,” Schultz said. “Will it solve the problem? Yet to be seen.”

 

ONE OF THESE THINGS IS NOT LIKE THE OTHERS – IT’S US!

March 11, 2024

Well, it’s been a little over a week since the legislative session wrapped, and we’ve had some time to ponder the bills that were passed and what the effects might be.  Bottom line is, I think we’ve accomplished something fairly unique in the annals of zoning reform here in our pretty, great state.

We tracked 36 bills that were land use/planning related, of which 21 passed.  Many modified quite a bit from their originals, so what we might have thought was going to happen, didn’t, or was changed significantly (usually made “milder.”)  Another statistic of note:  more than 400 net lines of code were added to LUDMA this session, more than last year (388 lines), which I thought was pretty substantial then!  LUDMA is getting huge and unwieldy – I defy anyone to understand everything LUDMA now stipulates in the practice of land use planning and administration, without having to engage in almost Talmudic-like study to make sure you’ve complied with all.  And it doesn’t seem the trend is going to slow anytime soon.

As to what was passed, I would categorize them this way:  housing affordability/zoning reform bills; LUDMA detail modification bills; and other planning-related bills (I kind of did that already in the March 3 blog post).

Let’s start with the housing affordability/zoning reform bills, as this is where I think the most notable things happened.  First, some context.

As I’m sure you are all well aware, there has been substantial discussion for several years now, both nationally and locally, about the crisis of housing affordability.  The sentiment is that local land use regulations, primarily zoning, have been significant contributors in causing this crisis (it is acknowledged that it is not the only cause, but often it seems it’s the only one that politicians, who want to show that they’re doing something, can do anything about).  The result has been a number of measures in states around the country where legislatures have mandated that local residential zoning can no longer be exclusively single-family, but must allow for a variety of housing types, property size allowances, and other measures said to impact the cost of housing.

I think this is a good direction to go, but as might be expected, local officials have often not taken kindly to the top-down mandates coming from those at the state level who will not directly face constituents who are not in sympathy with such moves.  This reaction is well-discussed in a piece by Anthony Downs in the Lincoln Institute of Land Policy’s journal Land Lines, titled The State of Local Zoning: Reforming a Century-Old Approach to Land Use.

As Downs notes, anecdotes of resistance, failed implementation, legal actions, and outright refusals by local governmental entities abound.

A recent example comes from Arizona, where the state legislature just last week passed a bill titled The Arizona Starter Homes Act.  Among other provisions:

The legislation would prohibit municipalities from adopting minimum lot sizes, minimum square footage, or minimum or maximum lot coverage for single family homes.

The bill contains unusual legislative intent language:

That language says Arizona is in a crisis due to the lack of available housing and that “the American dream of owning their own home,’’ has become “virtually impossible’’ for many Arizonans. It specifically lays the blame squarely on the cities. “The statewide housing crisis is caused in no small part due to highly restrictive regulations imposed by municipalities,’’ according to the bill.

There appears to have been little or no collaboration with local municipal officials to craft the Arizona bill, much as has been the case in other states.  Unsurprisingly, local officials and the Arizona League of Cities are not happy about the bill:

Tom Belshe, executive director of the League of Arizona Cities and Towns, (noted his membership) opposes the bill.

Nick Ponder, a lobbyist with HighGround Inc. that represents the League, told lawmakers the legislation would strip cities of their ability to ensure developers don’t build unappealing projects opposed by existing residents. He also said the bill wouldn’t solve underlying problems leading to a shortage of starter homes, like land costs and an influx of investor-owned properties.

So, apparently another strongly resisted state-mandated zoning reform measure looks like it will bite the dust, or at least be weakly implemented.

Why have I spent so much space talking about what’s going on in Arizona and other states on zoning reform?  Mainly for this reason:  it appears to me that what we have gotten through our Utah legislature stands a better chance of succeeding because it has been a collaborative effort.  Local and state officials have worked together, both prior to and during the legislative session, to come up with something that may stand a better chance of being implemented and may actually move the needle on housing cost.  About the only other state that has followed such a path has been Montana, with its Montana Land Use Planning Act, last year.  But even that achievement is now on hold due to legal challenges from citizens (not local elected officials!)

The Arizona Starter Homes bill is not yet fully adopted yet, either.  Arizona Governor Katie Hobbs has not yet signed the bill, saying she was looking for a better effort:

Hobbs said she would prefer to see housing bills as a compromise package between lawmakers and municipalities, which is typically done through the Arizona League of Cities and Towns. “The bill has not been transmitted to me yet. I’m still looking at it. What I have been very clear about is that when it comes to housing, I want to see a package that is negotiated, that has bipartisan support, and is a compromise with local jurisdictions.”

Here’s what we got from the legislature this year, which looks like it’s pretty unique:

Instead of state-mandated zoning provisions, which could range from a ban on single-family only housing zones to maximum allowable lot sizes and yard setbacks, we got a couple of optional, incentive-driven programs to encourage the characteristics that would allow for more affordable housing.  These include the creation of a couple of new programs that would give local governments the incentive of additional revenue through tax-increment financing, if they establish areas that meet certain criteria.

The first of these is the First Home Investment Zone (FHIZ), set forth in its own bill – S.B. 268 First Home Investment Zone Act.  Somewhat similar to provisions for Housing and Transit Reinvestment Zones, which were enabled a couple of years ago for areas around transit stations, the bill sets out a number of criteria which must be met, such as: the proposed area cannot include any area that is part of an HTRZ; must comply with local general and moderate-income housing plans; the minimum density of homes within the FHIZ must be 30 units per acre, over at least 51% of the FIHZ area; homes outside the FIHZ area may be counted toward the required numbers, but must be at a minimum of 6 units per acre, must be owner occupied with mechanism to assure owner-occupation; at least 12% of homes inside the FIHZ and 20% of those outside the area must be “affordable” deed-restricted, based on median home price or AMI; and so on.  If the area is established meeting all these requirements, the local government may receive up to 60% of the property tax increment generated by the new development for 25 out of 45 years, to be used toward the cost of infrastructure for the FIHZ area development.  There are many more details – you can see a good summary of those at the Wasatch Front Regional Council’s legislative summary.

Another similar program adopted is the Home Ownership Promotion Zone (HOPZ), which was amended into S.B. 168 Affordable Building Amendments, lines 358-573.  This zone may be established by the local government on areas of 10 acres or less; must be zoned for a density of six units per acre or more; must ensure that at least 60% of the housing units are affordable (priced at less than 80% of the median county home price; and must deed-restrict the housing price for at least five years.  There are a number of other provisions that apply.  If a compliant area is thus created, the local government is entitled to receive 60% of the newly created tax increment for up to 15 years, to be used for project and system improvement costs for the HOPZ area.

The original model for these kinds of incentive zones, the HTRZ, created by legislation a few years ago, were also modified by a bill passed in this session.   S.B. 208 Housing and Transit Reinvestment Zone Amendments, adds some affordability requirements for housing and ownership provisions in HTRZs, as well as a number of other more technical modifications to HTRZ requirements.

Other bills in this category are also incentive-based, primarily for financing of infrastructure, housing programs, and buyer/renter assistance.  One of the things that provided the impetus for these bills was the revelation by municipalities that there are actually some 190,000 entitled lots that have been approved around the state, but are not being built upon by private builders/developers.  The reasons are many, but one of the most common touted has been the lack of available financing to install the necessary infrastructure.  Also, if the desire is to see more homes built that fall in the affordable range, there needs to be financing/incentives for builders to do so.  Thus, these  bills:

H.B. 465 Housing Affordability Revisions – among other things, this bill authorizes redevelopment agencies and community development agencies to use funding to pay for or contribute to the acquisition, construction, or rehabilitation of income targeted housing, under certain circumstances.

H.B. 572 State Treasurer Investment Amendments – directs the state treasurer to invest up to $300 million of the Public Treasury Investment Fund (PTIF – public entity funds deposited here until they are needed by the entity) as deposits with private lenders for “qualified projects” – housing developments where at least 60% of the units are sold as “affordable first homes,” owner occupancy required for at least 5 years.  Other provisions also apply, but you get the idea.

H.B. 13 Infrastructure Financing Districts – modeled somewhat after PIDs which were created a couple of years ago, this new model provides a process for the creation of an infrastructure financing district​ with minimal public entity involvement, and provides for the powers and governance of such a district outside of local entity control.

S.B. 168 Affordable Building Amendments – in addition to the HOPZ program, this bill makes modifications to some state housing assistance programs, and most notably establishes a state-wide uniform standard for construction and certification of factory-built modular homes (on the idea that modular construction is cheaper than on-site construction.)

I’ll say it again, I think this is a pretty unique approach to “zoning reform,” compared to what we are seeing in other states around the country.  The proof will be in the pudding, however – will local governments put these programs into place, and will builders/developers make use of them?  Only time will tell.

While all these bills were part of a collaborative, incentives-based effort, that is not to say there wasn’t at least one attempt to impose a more “typical” state-mandated zoning reform style bill – H.B. 306 Residential Housing Amendments. This bill would have established a(nother) definition of starter home, and made them permitted uses in all local residential zones.  It also would have set a maximum lot size of 5,400 sf  for all residential lots.  The bill was crafted and introduced without any discussion with local entities or state officials, and was subsequently frozen from any action as the other, more collaborative bills were moved forward.

Okay, this has been a rather long post so far, and I haven’t yet addressed the other two categories that I set out at the beginning – LUDMA detail modifications bills, and other planning-related bills.  To see those, take a look at the March 3 blog post, those bills are pretty well categorized and summarized there.

And to get more details on all these bills, don’t forget the upcoming legislative update sessions – see the end of the March 3 blog post for dates and places.

2024 LEGISLATIVE LAND USE/HOUSING BILLS PASSED

March 3, 2024

All right, here’s a quick summary of all the land use/housing related bills that we tracked during the session that passed.  Most of these were amended pretty extensively from what they started out as, and several have lots of detailed provisions.  This summary will be just a brief general description of each bill.  Details will follow, particularly in the upcoming legislative update sessions – see the end of this summary for the dates and locations for those.

LUTF/CHA/UEOC bills and other major bills:

H.B. 465 Housing Affordability Revisions –  makes changes to MIHP reporting requirements; allows RDA/CDA funds to be used for affordable housing, with limitations; makes some changes to state housing programs; encourages point of the mountain state land authority to use its land use authority to increase housing.

H.B. 476 Municipal Land Use Regulation Modifications – main Land Use Task Force bill, which makes a number of LUDMA changes, such as stipulations on approval of development phasing; numerous provisions on development agreements; stipulates that landings and porches in rear yards are allowed; changes to the subdivision approval processes; stipulates limitations on holding up certificates of occupancy due to landscaping and sidewalk completion issues; several other more minor provisions; provisions apply to counties as well.

S.B. 168 Affordable Building Amendments – sets standards and requirements for building and allowing modular homes in the state; makes modifications to several state housing programs; provides an option for local governments to create Home Ownership Promotion Zones (HOPZs), with financing opportunities.

H.B. 13 Infrastructure Financing Districts – sort of like PIDs, but allows private parties (developers/land owners) to create a type of special district to finance infrastructure; assessment is paid of at the time of issuance of a certificate of occupancy for a home; minimal public entity involvement, but does stipulate infrastructure to be built to entity requirements/plans.

S.B. 208 Housing and Transit Reinvestment Zone Amendments – makes modifications to HTRZ provisions, a number of which relate to incentives for affordable housing.

S.B. 268 First Home Investment Zone Act – the provisions of this bill had little discussion prior to the legislative session, was instead almost entirely crafted during the session.  Creates the optional First Home Investment Zone (FIZH) program; must not include any properties included in an HTRZ; provides financing options for mixed use, centers, housing affordability; number of such zones limited in Salt Lake County along with HTRZs.

H.B. 572 State Treasurer Investment Amendments – stipulates that the Public Treasurers Investment Fund, where many governmental entities bank their money until it is needed, invest a certain amount of funds in loan programs for affordable housing development.

Other land use/LUDMA changes:

H.B. 188 Modifications Relating to the Use of Land – prohibits adding to/changing requirements on an issued building permit, except for building code compliance; adds a section to LUDMA on tower cranes.

S.B. 13 Education Entity Amendments – creates educational entities identified as homebased microschools, and micro-educational entities; applies the same rules to these new entities as for charter schools (permitted in all zones, specified land use and inspection regulations apply).

S.B. 185 Residential Building Inspection Amendments – provides that if a local government does not complete a scheduled inspection within three days, the builder may select an inspection service from a list provided by the local government, which the local government must pay for and accept the report from.

H.B. 256 Military Compatible Land Use Amendments – stipulates that for any land use application within 5,000 ft of military property, the local entity must first consider the adopted compatible use plan for that military facility, and requires submittal of all such applications to the State Department of Veteran and Military Affairs for comment.  These provisions are not required if the application is already vested.

H.B. 289 Property Rights Ombudsman Amendments – for an advisory opinion from the Office of the Property Rights Ombudsman, if a party chooses to go to court with the matter and the ruling turns out to be in line with the advisory opinion, penalties and legal fees may be awarded.

Other planning/land use-related bills passed:

H.B. 280 Water Related Changes – stipulates the preparation of a statewide water infrastructure plan, requires cooperation from all relevant entities including local governments.

H.B. 430 Local Government Transportation Services Amendments – creates the Public Transit Innovation Grants pilot program, intended to increase public transit services in high-growth areas.  Entities apply for funds for proposed services.

H.B. 502 Critical Infrastructure and Mining – calls for a study of the issues surrounding the mining of sand and gravel.

S.B. 28 Scenic Byway Program Amendments – extends the sunset of the Scenic Byways Program for five years; requires the Legislature to approve any new scenic byway designations that may be proposed.

S.B. 264 Inland Port Authority Amendments – makes a number of modifications to the inland port authority program

S.B. 258 Municipal Incorporation Amendments – creates a “preliminary municipality” entity for certain unincorporated properties proposed for development, after a feasibility study, public hearing by the lieutenant governor, and posting of a bond; intended to allow eventual transition to a town.

H.B. 330 Unincorporated Areas Amendments – automatically triggers annexation of unincorporated islands to adjacent municipalities on July 1, 2027 in Salt Lake County only.  Allows unincorporated, noncontiguous islands in community council areas to incorporate as a noncontiguous municipality.  Note from blog writer:  this is the latest manifestation of the annexation wars that have for so many years played havoc with annexation policy in our state.  The proposed recodification of the annexation code by a broad working group last year, was not taken up by the legislature (again!) this year.

And finally, the Salt Lake City sports-centered redevelopment bills:

H.B. 562 Utah Fairpark Area Investment and Restoration District – proposed for the area south of the State Fairpark, potentially for a new Major League Baseball stadium and surrounding development; includes some 65 acres (or more) of private land, to be governed by the District Board in cooperation with SLC officials.

S.B. 272 Capital City Revitalization Zone – a redevelopment district in downtown SLC, with oversight by a state-appointed board, driven by potential new stadium for the Utah Jazz and a National Hockey League team.

So there we go.  There were a number of funding measures that we did not go over here, for housing and for transportation, see the summary at the WFRC website.

For more details and to get answers to questions you may have, be sure to attend one of the legislative update sessions coming up.  Here are the dates and places:

• March 15, 9:00 am, joint ULCT/APA Utah update, Utah Local Government Trust, North Salt Lake
• March 22, ULUI Spring Conference, Abbey Inn, St. George
• April 18-19, ULCT Midyear Conference, St. George
• May 10, APA Utah Spring Conference, Cedar City

Finally, a news story about some of these bills: https://www.deseret.com/politics/2024/03/01/gov-cox-giddy-at-housing-bills-passed-this-session/

THREE DAYS, JUST THREE DAYS REMAINING!

February 28, 2024

So there are still some 27 bills we are tracking that would have impact on land use practice in our fair state.  Some are relatively minor, while there are some pretty big ones.

The “big” ones – that is, the most impactful – would, in my opinion, be the following:

H.B. 465 Housing Affordability Revisions – this bill is in a 3^rd substitute version, has passed the House, passed favorably out of Senate committee and is awaiting a vote by the full Senate.  In it’s current version, the bill would – well, let me just borrow from a recent story in the DesNews about the bill:

Housing Affordability Revisions, HB465 … introduced by Rep. Stephen Whyte, R-Mapleton, would encourage market-based solutions to the state’s housing shortage during a tight budget year that has ruled out most attempts to address the issue through increased funding.

“This bill aligns state resources, policies and tools around affordable home ownership and housing affordability with the desired outcome of increasing the supply of homeowner-occupied houses,” Whyte said.

As currently written, Whyte’s bill would give city redevelopment agencies the ability to help construct homes at 120% of area median income so these funds can be used to increase the supply of owner-occupied homes, not just small rental units.

“It’s going to provide some flexibility for cities on how we use the RDA funds so that we can focus those dollars on owner-occupied units, which is an important piece of this overall puzzle,” said Cameron Diehl, the executive director of the Utah League of Cities and Towns.

The bill would also encourage state land authorities, including the School Institutional Trust Lands Administration, the Point of the Mountain State Land Authority and the Utah Inland Port Authority, to make increasing affordable housing part of their missions.

The bill originally included additional penalties for cities that failed to create moderate income housing plans. The provision, which would have cut off some state funding in cases of noncompliance, was removed after feedback from Rep. Candice Pierucci, R-Herriman.

Next is H.B. 476 Municipal Land Use Regulation Modifications – this bill has also been passed by the House, was substituted and voted out favorably in Senate committee and is now waiting for a full Senate vote.  This is the bill that embodies most of the nitty gritty land use details worked out by the Land Use Task Force.  The substitute version makes some corrections to the original language, adds the same provisions that were to apply to cities to counties as well (for some reason, the legislative drafters often seem to forget that counties have land use power as well 😊), and makes a relatively small correction to the annexation provisions (but does not include the bigger annexation recodification that a working group developed last year – ☹).  It also makes the anticipated changes to the subdivision review process many have been hoping and waiting for.  We will summarize all the details of this bill upcoming.

Let’s skip ahead to S.B. 268 First Home Investment Zone Act – this is the bill that would establish the FHIZ program, which would be similar but different to the HTRZ program already in place.  As would be expected with a program of this magnitude and detail, it’s getting scrutiny and subsequent modifications, so it’s a little hard at this point to say just where this bill will wind up in terms of its details.  For a really good summary of what the bill does (in its current version), take a look at this excellent distillation of the bill and a graphic example, prepared by Miranda Jones Cox at WFRC – thanks Miranda, great work! The substitute and amended version of the bill is in the House, waiting for a vote.

Another proposed program, similar but different to the HTRZ and FHIZ, is contained in a 3^rd substitute version of S.B. 168 Affordable Building Amendments, and would be called the HOPZ program.  How is it different?  Well, there is not yet a good summary of it like there is for the FHIZ, but essentially it allows for a municipality to create a zone for residential development of a density of at least 6 units per acre and deed-restricted affordable housing. Our understanding is that the details of this program may be in flux, so we’ll wait to see what eventually passes.

Other provisions of SB168, which is one of the LUTF/CHA/UEOC bills, make some changes to various state housing programs, and most notably, establishes standards to allow for uniform treatment for modular home construction and placement.  Here again is a description of the bill from the previously cited DesNews story:

Fillmore’s bill, in addition to permitting and standardizing modular home construction across the state, includes a similar provision to Harper’s, allowing — not mandating — cities to “upzone” areas for single-family, owner-occupied homes on six to eight acres. If the housing projects meet these requirements, and fall below a certain price determined by the average home sale price in the zip code, then the city can use funds generated from increased property taxes to build infrastructure “to buy down the cost” of the homes.

“Everything that we’re doing on affordable housing this year is about creating additional supply of owner-occupied, first-time homes,” Fillmore said. “And you combine that with what we’ve done last year, I think we’re really setting it up so that we can accelerate the supply of affordable homes for first-time homebuyers so that people that are currently priced out of the market and are forced into rentals, even though they would like to buy, but just can’t find the inventory, will be able to find affordable homes.”

One more of the big impact bills to summarize, H.B. 572 State Treasurer Investment Amendments – would not have a direct effect on land use rules and procedures, but it would make more money available to help build infrastructure for affordable housing projects.  Quoting again from the DesNews story:

HB572, sponsored by Rep. Robert Spendlove, R-Sandy, would authorize the state treasurer’s office to temporarily make available $300 million in public investment funds to help local banks and credit unions offer low-interest loans for developers building affordable homes.

The state would provide low-rate deposits to financial institutions on the condition that they be used for loans on projects where 60% of units cost less than $450,000, there’s a five-year owner occupancy requirement and prospective buyers are informed about the First-Time Homebuyer assistance program.

That’s it for today.  There are several other bills that have passed already or are moving right along, that would have effect on land use practice in cities and counties, like on financing infrastructure, waterwise landscaping, building permit processes, small educational facilities in homes, and so on.  We’ll summarize those upcoming.

THEY’RE NOT DEAD YET – WAIT, I THINK THEY ARE

February 27, 2024

By Friday night at midnight, it’ll all be over!  Things are swimming along, bills are morphing or dying, and the huge raft of new land use changes that seem so daunting early in the session, well, it’s much less now than we thought.  Still, there will be some pretty momentous changes, most of which we’ve at least noted in earlier posts.

First, let’s cut things down to size.  We noted that we were following 37 bills this session, which isa lot, but it looks like a goodly share of them will not be enacted.  Here’s a list of the bills we’re tracking which look pretty much dead at this point:

H.B. 65 Active Transportation and Canal Trail Amendments – would have encouraged development of trails alongside canals

H.B. 135 County Land Use Amendments – would have rescinded the legislature’s granting of approval last year for a private development in Summit County

H.B. 151 Public Lands Amendments – would have required an inventory of BLM land within municipal boundaries and nearby

H.B. 175 Impact Fees Amendments – would have allowed use of impact fees for fire equipment

H.B. 180 Short-term Rental Amendments – would have made many changes regarding licensing and requirements for short-term rentals

H.B. 195 Land Use Planning Amendments – would have required an assessment of land use actions’ impact on wildlife

H.B. 235 Eminent Domain Amendments – would have allowed eminent domain to be used for the Bonneville Shoreline Trail

H.B. 237 Land Use Authority Amendments – would have prohibited local entities from requiring aesthetic features in developments unless they are expressly set out in land use regulations

H.B. 243 Riparian Amendments – originally would have required a riparian areas element in general plans.  Was amended to just allow studies, bill was defeated in House floor vote

H.B. 258 Airport Land Use Amendments – would have required planning and land use regulations around private airports, much as the bill passed last required this for public airports. Defeated in House floor vote

H.B. 306 Residential Housing Amendments – would have required minimum lot sizes and density for, and would have defined, starter homes

H.B. 434 Station Area Plan Amendments – would have required MPO review of proposed station area plans, but defer to local discretion

S.B. 172 Protection Areas Revisions – one of the two mining/gravel pit bills, this one is done.  The other bill was modified to require study of the issue

So, these are the bills that are very likely not going to pass this session – 13 of the 37.  That leaves us with 24 to follow.  We’ll summarize those coming up in a subsequent post, some of which have changed a lot from their originals!

OH MY HECK, THERE’S ANOTHER ONE!

February 23, 2024

And then there were three…

Early this morning I got a notice from my bill tracking program that a substitute bill for SB168 was available online.  I took a quick look, and holy cow, it was a LONG addition to the bill.  After reading through for a while, it was clear that this substitute bill would create another optional program for cities and counties similar to HTRZs and FHIZs, this one to be called the Home Ownership Promotion Zone Act (HOPZs).  SB168 Third Substitute comparison, not yet adopted.  The bill as is has passed the Senate, is now over in the House awaiting a committee hearing, where this third substitute will be considered.

My immediate reaction was, where the heck is this one coming from?  But I was subsequently reminded that Cameron Diehl had alerted everyone at Monday’s LPC meeting that something like this was in the works.  And here it is.  I then thought, this is getting really crazy and complicated.  If all these proposals pass, there would be three different programs to promote housing affordability and other community enhancements.  But then one of our APA Utah legislative committee members told me that this is probably a good thing – nothing mandatory, just different options for communities, depending on what they think would work best.  Viola!  Lots of carrots, no sticks!

Now, I have gotten comments back from some planners who have looked over the FHIZ bill and have suggested some tweaks to make it more effective to accomplish particular goals, so the bills aren’t perfect.  But upon reflection, I’m thinking this is a pretty remarkable turn of events in the movement toward land use reform in Utah.

So, if all these proposals pass, communities will have three options to consider implementing, with associated benefits (carrots):  HTRZs – Housing and Transit Reinvestment Zones, around transit stations; FHIZs – First Home Investment Zones, everywhere outside HTRZs to encourage mixed use centers and more affordable housing; and HOPZs – Housing Ownership Promotion Zones, about anywhere in a community (I think, haven’t really been able to study the bill in detail yet) to enhance affordability and home ownership.  There’s lots to chew through on these bills first, and I’m sure in subsequent sessions there will be tweaks and adjustments, but it’s an interesting and encouraging approach.

Obviously, more to come about these!

On the mining/gravel pits bill – H.B. 502 Critical Infrastructure and Mining – it was substituted in committee yesterday and now becomes just a requirement to study the issue.  What a change!

Oh, and by the way, no sign of the annexation recodification – sigh!

And just to let you all know, at this point it’s looking like there will be four post-session legislative updates around the state:

• March 15, joint APA Utah/ULCT update, Utah Local Government Trust, North Salt Lake
• March 22, ULUI Spring Conference, Abbey Inn, St. George
• April 18-19, ULCT Midyear Conference, St. George
• May 10, APA Utah Spring Conference, Cedar City

CRUNCH, CRUNCH

February 22, 2024

We are at crunch time at the legislature, with only a little over a week remaining in the session and a LOT of bills that need resolution, as well as new bills still showing up (how much meaningful review can really be done on these bills that show up in the last week or two of the session, huh?  When people who would normally do this are fully engaged with the bills that are already out and running their course – we are currently tracking 37 bills – but I digress 😊☹).

In our first post on Feb. 20, we mentioned the increasing prevalence of legislatively-created entities with land use and other powers normally exercised by local governments.  Like I waved a wand and broke the spell, another proposed one showed up that very same day.  H.B. 562 Utah Fairpark Area Investment and Restoration District is a bill to basically incentivize and support new development south of the current State Fairpark, the most talked about feature of which could be a Major League Baseball stadium.  Much like the Point of the Mountain, Port Authority, and MIDA entities, this new FAIR district would be overseen by a state-appointed body and would be given broad powers.  This area has been the subject of a lot of discussion and fretting going back a long ways, to my time as SLC Planning Director (we oversaw the creation of a new North Temple corridor plan and this area was a key part of the plan) and before.  Now, with the possibility of a new sports stadium (there’s a lot of literature out there about how good – or not good – sports stadiums have been for redevelopment and use of tax dollars), the state is taking control.  A story in today’s Trib enumerates some of the concerns Salt Lake City officials have about this proposed bill, even though it may well “revitalize” a key area of the community.  Yes, revitalize, but how?  Once again, the power of collaboration is a principle that should be more engaged in in these kinds of measures.  But, once again, this is all happening at the end of the legislative session when there is not much time for “collaboration.”

All right, on to other things.  The FHIZ bill S.B. 268 First Home Investment Zone Act is up for a hearing in committee tomorrow morning.  This is a bill that was crafted with a fair amount of collaboration (though many have not been able to see the details until just recently, again because of time constraints).  We’ll see how it is received in the meeting tomorrow. I think this could be a model of how to do collaborative land use reform.

The mining/gravel bills – S.B. 172 Protection Areas Revisions and H.B. 502 Critical Infrastructure and Mining – are apparently back on track and up for hearing in committees, one this afternoon and one tomorrow morning.  I’m predicting vigorous opposition.  We’ll see how these go.

The general plan element requirement for riparian areas bill – H.B. 243 Riparian Amendments – is up for committee hearing this afternoon, and there are several proposed substitute bills listed, which would all take away the requirement for such a general plan element to varying degrees.  It will be interesting to see which, if any, of the substitute versions is adopted by the committee.

The LUTF/CHA/UEOC bills also continue to move forward.  Still haven’t seen anything in those bills, though, on the extensive annexation recodification that a working group proposed during the interim.  That may be toast at this point – again!

Watch this space!

WOULD YOU LIKE SOMETHING FHIZ-Y?

February 20-2, 2024

So here’s more detail about the FHIZ bill that was just dropped at the legislature this morning.  I think it’s a notable idea, something worth trying out.  It’s sort of similar to HTRZs, which we’ve gotten some (not much) experience with.  But it would be a carrot, not a stick, which in and of itself is a good thing, making it more likely to succeed if it’s tried (things are continuing to look dismal for the top-down zoning reform mandates – a citizen referendum in Milton, Massachusetts just tanked an upzoning that was more or less required by state legislative action – more on that in an upcoming post).

Called the First Home Investment Zone (FHIZ) Act, it is getting stuck with the acronym pronounced “fizz” – so I guess that makes future proponents of these “fizzies?”  Is that better than being a Swiftie?

Well, regardless, here’s a link to the bill –  S.B. 268 First Home Investment Zone Act

And here, thanks to Miranda Jones Cox at WFRC (which staff had a big hand in helping to craft this legislation, along with League staff and key legislators), is a summary of what the bill would do:

1. New tool for city to propose medium-density city or town center (min. 10, max. 100 acres) AND owner-occupied homes.
2. Eligible anywhere HTRZs are not allowed (i.e., not around FrontRunner, Trax, BRT stations). Note: FHIZ would be considered under the existing cap for number of HTRZs allowed in SLCo (11 combined, with 8 Trax, 3 BRT, not including FrontRunner)
3. Follows similar process to creation of HTRZ: City proposes FHIZ for review and approval by HTRZ committee. FHIZ proposal must address comparable policy goals to HTRZ, including housing availability, affordability, and ownership, transportation planning, strategic land and water use, etc.
4. Per acre minimum residential density of 30 units per acre (over 51% of the developable area) in the FHIZ zone – but up to half of those homes can be outside the FHIZ zone…
5. New homes outside the FHIZ zone but within the proposing city (“extraterritorial homes”) can “count” towards requirement of 30 units/acre, if they are:
   1. Long-term owner-occupied (deed restricted for 25 years)
   2. At minimum density of 8 units per acre
   3. Included as part of the overall FHIZ proposal
6. Requirements:
   1. Owner occupied: 100% of the homes outside the zone, and not less than 50% of the total homes inside + outside the zone.
   2. Affordable (120% AMI, deed restricted): At least 12% of homes inside the FHIZ zone, and at least 20% of homes outside the zone. Affordable homes must be spread across the development and be of the same quality.
   3. New homes may not yet be permitted by the city, and the relevant areas must be zoned appropriately, before the FHIZ is approved.
   4. No short-term rentals of owner-occupied homes.
   5. FHIZ zone must include mixed use (needed to generate value).
7. Up to 60% of property tax increment capture from all taxing entities inside FHIZ zone for 25 out of 45 years (maximum of three tax increment phases).
8. Increment use by city: project and system infrastructure costs for the FHIZ and related homes outside zone.

Take a look and let us know what you think, if you would consider using this in your community or your project.

HOLIDAY SURPRISE

February 20, 2024

Three new bills of interest that popped out over the holiday weekend.

H.B. 572 State Treasurer Investment Amendments – this is the bill mentioned in the Feb. 14 post, directing the PTIF to make money available to support of infrastructure and other things for affordable housing projects.  https://le.utah.gov/~2024/bills/static/HB0572.html

S.B. 258 Municipal Incorporation Amendments – this is an interesting bill that would allow for the creation of a “preliminary municipality,” a kind of strange beast that allows for establishment after a feasibility study on land that is committed for new development, and can have no more than three property owners.  Eventually it can become a full-blown municipality.  To me, this smells of a scheme to assist a specific development proposal somewhere in the state that is having issues with the county and/or adjacent city.  This will be interesting to see where it goes.  It has an influential sponsor, Sen. Curt Bramble, so it will likely go some ways.  https://le.utah.gov/~2024/bills/static/SB0258.html

S.B. 264 Inland Port Authority Amendments – this bill would make a number of changes in how an area can be designated as an IPA, and how they then operate.  Along with things like MIDAs, Point of the Mountain Authority, and Lake Authorities, these have become significant players in the way land in the state gets planned and developed, outside of traditional local government land use powers. https://le.utah.gov/~2024/bills/static/SB0264.html

SITTIN’ HERE, TWIDDLING THUMBS

February 15, 2024

Most of the action on housing/land use bills is happening behind the scenes right now, so there’s not much timely to report.  Just suffice it to say, there will be more stuff coming!

There are a few media reports of interest.  Most notable is this story in the DesNews titled Lawmakers tackle housing shortage via regulatory reform, not new funding.  The story quotes legislative sources as saying that there will be little money in this tight fiscal session to put towards housing programs:

Cox asked lawmakers to fund a $150 million Utah First Homes program to help the state build 35,000 starter homes by 2028.

The money would have been used to expand last year’s First-time Homebuyer Assistance Program, shore up the state infrastructure bank, as well as prop up other programs subsidizing home purchases and starter home innovation.

However, Cox’s proposals were based on the assumption that lawmakers would “change statute” to redirect money earmarked in 2023 for transportation and use it for housing programs, something state legislators are unwilling to do, according to Schultz.

“We don’t have the amount of money available to us that the governor had in his budget,” he said, later adding, “because those dollar amounts were dedicated already towards transportation.”

Instead, the emphasis is more on making changes to local land use policies and regulations:

Earlier this month, in response to questions about how the Legislature would work to increase affordable homes in the state without big spending increases, Utah House Speaker Mike Schultz, R-Hooper, told reporters that addressing the regulatory piece of the puzzle can be just as effective, and more long-lasting, than subsidizing construction or infrastructure costs.

“Refining what that approval process looks like and how can we streamline some of it is probably one of the best things that we can do,” Schultz said during a media availability.

The story also talks about a lot of the details of the LUTF/CHA/UEOC bills.

There has also been a media call-out on the mining/gravel bills.  KUTV did this story on it, Utah lawmakers revisit mining regulation bill:

Utah lawmakers are revisiting the idea of loosening regulations to allow mines to expand, aiming to reduce the cost of sand and gravel, which are vital for the state’s development and growth. However, critics argue it would undermine local authority and infringe on property owners’ rights. A similar bill filed in the Senate earlier in the session died, but the new legislation has been introduced in the House.

The two bills referred to are S.B. 172 Protection Areas Revisions and H.B. 502 Critical Infrastructure and Mining.  The Deseret News editorial board put out an editorial against both bills, saying:

No one should doubt the need for rock quarries in order to keep up with the steady population growth along the Wasatch Front. The rock aggregate products that come from such quarries are required for home construction, sidewalks, highways and many other things that people rely on in order to live and prosper.

But it should be equally obvious that the siting of these quarries must be delicately balanced against the health, safety and environmental needs of nearby residents.

The editorial board goes on to say:

To consider such bills during the state’s yearly 45-day legislative session is far too rushed. Local governments ought to be able to regulate operations that would affect the health and safety of nearby residents.

Such a statement is obviously accurate and valid, but discussions have been on-going between local governments and gravel operators for a considerable time and, apparently, no agreements have been reached.  The editorial concludes:

We are not anti-mining. Rock aggregate extraction is needed, as will be mineral mining in the future. But these bills are tilting the wrong way…

Worth a read.  And, obviously, more to come.

SOME NEW IDEAS

February 14, 2024

While we’ve been paying attention to the bills that have been released up to this point in the legislative session, there are apparently some more coming, a couple of which will be pretty major, innovative moves in the housing affordability endeavor.  The concepts for these bills were talked about at the League’s Legislative Policy Committee meeting on Monday, and I think we need to bring everyone up to speed on them.

The first was discussed by Steve Waldrip, the Governor’s Senior Advisor on Housing Innovation.  You may recall that at the same time that Governor Cox announced the appointment of Steve Waldrip, he also announced his starter homes initiative (Utah First Homes Program).  The proposal described on Monday by Waldrip would direct that some money from the Public Treasurers Investment Fund (where many governmental entities around the state park their money until it is needed) be set aside for financial institutions to apply for and use to finance loans for starter home projects.  Specific criteria would need to be met, and coordination with local governments key to get the kinds of projects entitled to meet the goals.  Here are some of the details of the proposal from a slide used during the discussion Monday:

PTIF proposed action:

1) authorize State Treasurer to invest up to $1 billion as deposits in banks/credit unions for “qualified projects”

2) “Qualified project” = housing proposal with a) % sold at “first home” levels (affordability) b) owner-occupancy req’ts c) all types of units (SF-D, townhomes, condos)

3) Banks/CUs could request deposits for a % of the “qualified project” cost

4) PTIF $ deposited at Fed Funds Rate – XX basis points

5) Lender loans to builder at + YY bps over

The second is a concept I think is pretty creative and innovative, and is at least worth a try to see if it can produce.  It’s likely going to be tagged with the acronym “FHIZ,” which stands for First Home Investment Zone.  Similar in concept to the recently established HTRZs (Housing and Transit Reinvestment Zones), this one would allow a community, at its own option and discretion, to set up a FHIZ somewhere within the community (not just adjacent to transit stations).  The proposal would have to include certain characteristics (still to be defined) such as a mixed use center (to encourage walkability), minimum densities, owner-occupancy, price restrictions, and others.  The area can include properties outside the center, again with certain restrictions.  The idea is to encourage new development with affordable housing and certain characteristics of design and function.  Proposals would be reviewed and approved by an HTRZ committee, and once designated, the community would be able to collect a designated tax increment to help fund needed infrastructure and services within the zone.  Lots of details still to be worked out on this, but it’s definitely an interesting idea!  The current provisions for the HTRZ committee, by the way, make it a pretty large group with lots of different government entities represented (Housing and Transit Reinvestment Zone Committee).  Here’s a summary of the current thinking on this from the slide used by Cameron Diehl during Monday’s LPC meeting:

First Home Investment Zone objectives: medium density town center AND owner-occupied, affordable units outside center

1) City option to propose

2) HTRZ committee approves it & awards % of TIF from taxing entities to fund infrastructure

3) Proposal must include:

1. a) density req’ts (housing units inside & outside center count for it)

2. b) 51% of developable acreage for housing

3. c) significant % must be owner-occupied d) % must be affordable

A small group of people from the League, WFRC, and some key legislators have been working on this, kudos to them for thinking “higher,” and cooperatively!

The word is that the provisions for these two initiatives will, when they are finalized, be amended into one of the LUTF/CHA/UEOC bills (HB465, HB476, SB168), so we’ll keep an eye open for that.

Okay, things are starting to move faster now that there’s only about two and an half weeks left in the session, so we’ll try to keep the updates coming.

MID-SESSION UPDATE

February 12, 2024

Here’s the long-promised summary of bills we are following and their status as of this morning, Feb. 12:

H.B. 11 Water Efficient Landscaping Requirements – this bill would limit the kinds of landscaping that could be installed on the grounds of public facilities with the goal of water conservation.  The bill has passed the House, is currently awaiting a final vote by the Senate.

H.B. 13 Infrastructure Financing Districts – this bill would allow for the creation of another type of infrastructure district, similar to PIDs but different, without much local government involvement.  This has been touted as a way to help with housing affordability.  The bill has amended, received a unanimous vote in favor in the House, and is up for hearing in Senate committee this afternoon.

H.B. 65 Active Transportation and Canal Trail Amendments – this bill would essentially enhance the potential for creating trails alongside canals around the state.  The bill was substituted and amended in committee, and then was voted to be held by the committee.  Not sure what its fate is at this point.

H.B. 135 County Land Use Amendments – this bill would revoke the land use entitlement granted to the Dakota Pacific project in Summit County by last year’s bill (a totally unprecedented action by the legislature).  No action has taken place on this bill since it was introduced on the first day of the session.

H.B. 151 Public Lands Amendments – this bill would require an inventory of federal BLM land within or near municipal boundaries, with the intent of showing how such lands could be made available for community use and development.  No action on this bill since introduction.

H.B. 175 Impact Fees Amendments – this bill would remove language prohibiting the use of impact fees for fire fighting equipment.  No action on this bill since introduction.

H.B. 180 Short-term Rental Amendments – this bill was the result of a working group that met through the interim after last year’s session on this topic, it would create an entirely new section in state code on short-term rentals.  There are some amendments to the bill that have been released, but no action taken yet.  After all that work, it is interesting that no action has taken place on this bill since introduction.  It has not even been assigned to a committee for hearing.

H.B. 188 Building Permit Requirements – this bill would prohibit a local government from making any modifications to a building permit once it has been issued.  In the House committee, an amendment was approved to allow for changes agreed to by the applicant, or for changes needed to comply with building or fire codes.  The bill passed unanimously in the House, and is now scheduled for a hearing in Senate committee tomorrow morning.

H.B. 195 Land Use Planning Amendments – this bill would require an assessment of the impact on wildlife for any general plan action and for any land use code changes.  No action on this bill since introduction, though there is a substitute version of the bill out now that would give the local government some discretion about how extensive to get in its analysis of impact on wildlife.  I think even the substitute bill is still a problem because every land use code text amendment or rezone would require some analysis of impact on wildlife.

H.B. 235 Eminent Domain Amendments – this bill would allow the use of eminent domain for the Bonneville Shoreline trail only.  No action on this bill since introduction.

H.B. 237 Land Use Authority Amendments – this bill would prohibit a local government from requiring design or aesthetic features on new development unless those features are specified in the community’s land use codes.  The bill has been sent to a House committee for hearing, but no time has yet be scheduled for it.

H.B. 243 Riparian Amendments – this bill would require community general plans to include an element on riparian areas.  A draft substitute version of the bill was prepared that would have eliminated all the mandatory riparian planning language and instead would have specified that a community general plan may include an environmental element that address a variety of environmental issues.  The bill was considered in House committee, and then the committee voted 12-0 to hold the bill.  Not sure what it’s fate will be.

H.B. 256 Military Compatible Land Use Amendments – this bill been substituted to say that instead of the State Department of Veteran and Military Affairs having essentially a veto power over newly proposed land use applications within 5,000 feet of a military facility, it now says that the local government must consider the joint compatible use plan in reviewing and approving the application, unless the application has an established a vested right, in which case it can be approved as proposed. The bill has been passed unanimously by both the House and the Senate and is ready for the Governor’s signature.

H.B. 258 Airport Land Use Amendments – this bill would have required local governments to do the same planning around private airports that a bill in last year’s session required for public airports.  The bill failed to gain the minimum number of votes needed to pass in the House, and is now dead.  Not sure why this happened, other than there may have been resistance from local officials.

H.B. 289 Property Rights Ombudsman Amendments – this bill addresses the existing provisions in state code regarding advisory opinions by the state property rights ombudsman’s office and the ability to collect attorneys fees and penalties if a party to the opinion decides to pursue the matter in court and the decision is the same as the advisory opinion.  The League has been strongly opposed to this bill because it impacts sovereign immunity for local governments and some other related issues.  The bill was substituted with language the League says is not as bad as the original, but they are still opposed to.  The substitute version of the bill then passed the House on a 47-21 vote and now goes to the Senate.

H.B. 306 Residential Housing Amendments – this bill has been the subject of a lot of controversy, discussion, and press attention – see our Feb. 6 posting for more details.  A substitute version of the bill has been released, which has not (yet) been adopted, which would drop the minimum lot size language, but keep the wording defining what a “starter home” is, and stipulate that such starter homes would be permitted uses in all “urban municipality” residential zones. Another story in the DesNews continues the rhetoric about the bill, but still misses the point that we think much of the opposition to the bill is because there was no collaborative effort in crafting it.  While the bill has been assigned to a committee, it has not been scheduled for a hearing.  It will almost surely be a topic of discussion during this year’s interim.

H.B. 280 Water Related Changes – this bill intends to institute a planning process for major water infrastructure much like that which is being done for transportation facilities.  It has run into issues with local governments and others because it would institute a new fee or charge to help pay for the building of such new infrastructure.  Here’s a story in the DesNews about the bill and what it would do.  The bill had changes made to its language in committee, was then voted out favorably by the committee, and now awaits a vote on the House floor.

H.B. 330 Unincorporated Areas Amendments – this bill relates to “forced” annexations of unincorporated areas in Salt Lake County to adjacent cities.  The bill has been amended and is awaiting a vote on the House floor.

H.B. 430 Local Government Transportation Services Amendments – this bill would require UTA to expend funds on transit services in each community proportional to the amount of revenue it collects from each given community.  The bill was on a House committee agenda on Feb. 9, but was not considered. It is on the agenda again for this afternoon.

H.B. 434 Station Area Plan Amendments – would require an MPO to review a local station area plant, but defer.  Not sure what this would accomplish.  No action has been taken on this bill.

H.B. 465 Housing Affordability Revisions – see Feb. 5 posting for description.  The bill is up for committee hearing tomorrow morning.

H.B. 476 Municipal Land Use Regulation Modifications – see Feb. 5 posting for description.  The bill is also up for committee hearing tomorrow morning.

H.B. 502 Critical Infrastructure and Mining – See Feb. 8 posting for description.  No actions on this bill at this point.

H.B. 524 Water Interests Study – would require the state engineer to study if water rights associated with property where residential development has taken place can and are being sold off separately, leaving the residential uses without water rights, and to issue a report.  No action yet on this bill.

S.B. 13 Education Entity Amendments – would establish new categories of schools, microschools and home-based schools, and would give them the same land use provisions as apply to charter schools.  The bill has been approved by the Senate and is headed for the House.

S.B. 28 Scenic Byway Program Amendments – see Feb. 8 posting for details about this bill, it seems to be seesawing back and forth over the commission and legislature approval requirements.  The bill is awaiting a vote by the full Senate.

S.B. 118 Water Efficiency Amendments – this bill would make a number of changes to the program to provide incentives for homeowners to install water-wise landscaping, mainly by allowing the program to apply to building contractors for the initial installation of landscaping for a new home.  See the substituted version of the bill for details.  The bill is awaiting a vote by the full Senate.

S.B. 168 Affordable Building Amendments – much of this bill has to do with modifying building and inspection regulations to allow for construction and placement of modular housing.  This bill has enjoyed broad support.  Here’s a DesNews story about it.  The bill is awaiting a vote by the full Senate.

S.B. 172 Protection Areas Revisions – the first gravel pits-related bill, see the Feb. 5 posting for details on this bill.  It is still with the Rules committee, not sure of its future.

S.B. 185 Residential Building Inspection Amendments – this bill would allow an agency, regulator (city or county), or permit holder(!) to hire a third-party licensed inspector, and require that those inspection reports be accepted by the permit issuer. The bill is scheduled for committee hearing this afternoon.

S.B. 208 Housing and Transit Reinvestment Zone Amendments – this update from Miranda at WFRC – This bill makes changes to the HTRZ statute, notably increasing requirements for affordable housing in an HTRZ (from 10% to 12%), clarifying eligible stations for an HTRZ, enhancing the “but for” financial analysis, and addressing tax administration issues from the tax commission and local assessors. Senator Harper has indicated that he is still considering potential further modifications to the bill.  The bill is up for committee hearing this afternoon.

WHAT’S HAPPENING?  PLENTY!

February 8, 2024

The summary of all the bills we are following is coming, I promise, but right now let’s just get caught up on recent actions from the last couple of days.

Gravel pit wars.  They are indeed heating up again.  This is something that has been a big issue in the past, and then the last year or two kind of settled down a bit as cities/counties and gravel operators “talked” about where to go on local regulation.  But things have now rather exploded again.  The first shot was introduction of S.B. 172 Protection Areas Revisions, which we summarized in our post of Feb. 5.  Here’s a KUTV news story about the bill and some of the related happenings in Draper City.  The bill had been scheduled for a committee hearing, but after all the furor about it (the League took a “hell no” position on the bill), it was pulled from committee and sent back to the Rules Committee, usually a sign that a bill is in trouble.  But yesterday a bill that would be far more draconian was introduced – H.B. 502 Critical Infrastructure and Mining.  This bill would… well, let me just show the actual bill language:

By no later than December 31, 2024, the ordinances of a political subdivision
30     shall allow critical infrastructure materials operations and mining operations as a permitted or
31     conditional use, subject to standards that are:
32          (i) determined by the political subdivision; and
33          (ii) consistent with this chapter.
34          (b) A political subdivision whose ordinances do not comply with Subsection (1)(a) by
35     December 31, 2024, is considered to allow critical infrastructure materials operations and
36     mining operations as a permitted use without regard to any contrary provision in the political
37     subdivisions land use ordinances.
38          (c) A political subdivision may not restrict, prohibit, or impose a condition that would
39     unreasonably limit critical infrastructure materials operations or mining operations.

It gets better:

A standard in effect on May 1,
47     2024, that unreasonably restricts, prohibits, or limits critical infrastructure materials operations
48     or mining operations, including overlay zoning, does not apply to critical infrastructure
49     materials operations or mining operations.

The bill then goes on to require that all counties, in their general plans, prepare and adopt an element on critical infrastructure materials:

By no later than November 30, 2024, a county legislative body shall adopt a
80     critical infrastructure materials plan meeting the requirements of Subsection (2) that provides
81     for how the county will ensure that there is adequate critical infrastructure materials operations
82     in the county to supply the demand for critical infrastructure measured by the county’s
83     population as of May 1, 2024, and the county’s projected population in 2044.
84          (b) A county shall update the plan described in Subsection (1)(a) every five years
85     measuring the demand for critical infrastructure materials based on the county’s population in
86     the year the updated plan is adopted and the county’s projected population 20 years from the
87     year the updated plan is adopted.

There’s lots more to this bill, but you get the idea.  I’m pretty sure there will be strong opposition from cities and counties.  Watch out for this one.

Starter Homes and Minimum Lot Size.  The minimum lot size bill, HB306, which we featured in our Feb. 6 post, may not be dead yet! (apologies to Monty Python)  A substitute version of the bill has been released, which has not (yet) been adopted, which would drop the minimum lot size language, but keep the wording defining what a “starter home” is, and stipulate that such starter homes would be permitted uses in all “urban municipality” residential zones.  Hmmm.  Not sure what that accomplishes.  I think the starter home definition still needs some work, take a look and let us know what you think.  Not sure if this is going to go anywhere.

Scenic Byways.  The bill that would have done away with the permanent Scenic Byways Committee and established ad hoc committees, which would have included a representative from the outdoor advertising industry, was substituted to keep the original provision.  But it also adds the provision that any final decision on designation for a new scenic byway must be approved by the state legislature.  Here’s the revised bill – S.B. 28 Scenic Byway Program Amendments – and a SL Trib story about it.

HTRZ Changes.  Sen. Wayne Harper has introduced a bill that would make a number of changes to the details for housing in Housing and Transit Reinvestment Zones, including level of affordability, acreage requirements and restrictions, and others.  Take a look – S.B. 208 Housing and Transit Reinvestment Zone Amendments

Riparian Areas Plan Element. The bill that would add a new required general plan element, for riparian areas – H.B. 243 Riparian Amendments – is up for hearing in committee tomorrow morning at 8:00.  I’ve heard pros about this bill, but also cons in that it just adds another complicated, technical element that must be included in local general plans, and may open the door for more such to come (like wildlife impact, critical infrastructure materials, etc., etc., etc.?)

Annexation. While the consensus housing/land use bill H.B. 476 Municipal Land Use Regulation Modifications contains many of the items that were discussed and agreed to during the interim, it does not include the changes to the annexation code that were developed by a working group.  Word is that those are still being worked on by legislative staff and will be amended into the bill upcoming.  We can only hope!

That’s enough for today, I’m sure I’ve overwhelmed most of you already.  As stated at the beginning, a summary of all the followed bills coming.

MEANWHILE…

(My apologies to Steven Colbert!)

February 6, 2024

I was hoping today to do a brief summary of all the bills we are following on housing/land use in this year’s legislative session, but, as is not uncommon in a packed, fast-moving, time-limited forum, breaking events override.  I will still do the bills summary upcoming, but for today I need to focus on what might have been one of the most impactful bills of the session.

According to a piece in yesterday’s Building Salt Lake newsletter, H.B. 306 Residential Housing Amendments may be done for this session.  This is the bill that would have set a mandatory minimum lot size of 1/8 acre for “starter homes,” making such homes a permitted use in all residential zones in “urban” communities.  The story, Bill to allow construction of starter homes won’t get a hearing in Utah House, quotes bill sponsor Rep. Ray Ward of Bountiful saying:

“I couldn’t scrape up enough support really to be close, so in the end it won’t get a hearing.”

Last week, (the bill) was assigned to the House Political Subdivisions Committee, where Ward said it doesn’t have enough support.

HB306 faced opposition from the Utah League of Cities and Towns, a lobbying group that typically opposes state-level changes to municipal powers. It also failed to win over allies in the House and among other powerful lobbying groups, Ward said.

While the League did oppose it on the basis of co-opting local land use authority, it seemed to me there was more opposition to the bill because of the lack of collaboration and cooperation in crafting the bill.  As we’ve noted in earlier posts, Utah has displayed a high degree of collaboration on housing and zoning reform measures, as opposed to other states where the approach has been more top-down mandates which generally result in poor implementation.

Ironically, the APA Utah Chapter Executive Committee just yesterday finalized a position statement regarding HB306, saying essentially that they were not necessarily opposed to the concept of the bill, but that the details need to be discussed and worked through with those who would be expected to implement them.  Accomplishing that during the few weeks remaining in the legislative session, alongside all the other housing and land use bills that are jostling for attention, would be difficult at best.  Here’s the full text of APA Utah’s statement:

The Utah Chapter of the American Planning Association (APA UT) recognizes that housing is a statewide issue that requires action at both the state and local levels. We support a thoughtful and collaborative approach to finding a solution that considers our communities’ diverse needs.

Before adopting specific standards, further study and discussion are necessary to ensure that any proposed solutions are practical and equitable. We also believe that impact fees should be accessed for providing services to a new home, just like in any other development, to mitigate the impact and help fund the capital cost of the additional public services, infrastructure, or transportation facilities necessitated by, and attributable to, new development.

On a national level, the American Planning Association believes collaboration is key when setting policy and upholds six principles driving its Action Agenda as follows:

1. Modernize State Planning Laws
2. Reform Local Codes
3. Promote Inclusionary Growth
4. Remove Barriers to Multifamily Housing
5. Turn NIMBY Into YIMBY
6. Rethink Finance

In line with these principles, APA UT supports creative statewide solutions to the state’s housing crisis that involve the collaboration of legislators, policy makers, planners, developers, advocates, and residents. Housing is a statewide issue, and we agree with the need for action at the state and local level to address this issue. 

APA UT OPPOSES HB306 on the basis of a lack of such collaboration. 

Details of potential solutions such as HB306 are a step in the right direction, but should be discussed with all players ahead of time to ensure some level of agreement and collaboration in order to ensure the policies are able to be effectively implemented. APA Utah would support a bill like HB306 if key players were able to to collaborate on the following items before a bill is passed into law for Utah’s planners to successfully implement:

1. Definition of Starter Home
   Is ⅛ acre a size that will make a difference in what housing products are offered? Will smaller lot sizes result in smaller homes? Do cities have the capacity to service increased density on a per residential unit basis (i.e. water, sewer, utilities)?
2. Limits on House Sizes
   Will a limit on starter home sizes be more effective than a regulation on lot size? Will this increase affordability or increase the price per square foot of new housing products?
3. Design Considerations
   Will smaller lots or smaller homes fit into neighborhoods with larger lots and larger homes? Are there any design standards that need to be implemented to foster a good fit or transition between various housing types and sizes? Also, automatically allowing structures in flood zones is problematic.
4. “One Size Misfits All”
   Legislation that would increase moderately priced housing supply should recognize that communities differ in their urban, suburban, and rural context, and that there are also differing contexts within each city. Mechanisms are needed to tailor the provision of housing opportunities to the locations within cities that make the most sense for those opportunities.
5. Deed Restrictions
   The cost to implement this bill is not addressed. Who is meant to manage and enforce deed restrictions on an annual basis? Some cities have housing staff and existing administrative processes to review and enforce such mechanisms, but most do not.
6. Impact Fees
   Who will cover the cost of impacts to other services if impact fees are waived? Limiting impact fees limits municipalities’ ability to service new structures. Costs still need to be addressed and will likely be transferred to existing residents or other new developments.
7. Additional Study/Discussion Needed
   Additional study and discussion needs to be had before specific standards are adopted. 

While the overall goal to increase access to purchase property to build the “American Dream” is noble, the solution will only be found in a thoughtful, collaborative approach. For Utah’s planners, May 2024 is not a reasonable timeline to understand the impacts of the proposed changes and enact them into zoning and development codes, especially when cities were not involved in the details and drafting of this bill.

As an association of urban planners, many of who work in local government, we would invite Rep. Ward to discuss his goals and aims for addressing housing affordability and zoning reform, and work with us to craft some meaningful, acceptable changes.  Let’s get together!

Finally, I just have to call out the author of the Building Salt Lake piece cited, Taylor Anderson.  At the end of his story, he writes:

Another bill in the Senate that was supposedly in line with Ward’s never materialized, and it appears the Legislature is on pace to avoid meaningful policymaking this session around housing creation.

Seriously?  Mr. Anderson, have you looked at the other bills that have been introduced so far this legislative session on housing and land use?  And none of those are, to you, “meaningful policymaking?”

THE SLEEPING GIANT STIRS!

February 5, 2024

Starting into the second half of the legislative session, things are starting to pick up on the housing and land use fronts.

Two new bills just out Monday afternoon, which are part of the long-awaited LUTF/CHA/UEOC legislation.  I’ll just use the description of what each bill does in the bills’ highlighted provisions, with more detailed discussion to come later.  Please look over the bills and let us know of issues/concerns you may have.

H.B. 465 Housing Affordability Revisions

This bill:
▸     defines terms and modifies definitions;
▸     states that a municipality or county that fails to comply with moderate income housing reporting requirements shall be ineligible for certain funding;
▸     authorizes redevelopment agencies and community development agencies to use funding to pay for or contribute to the acquisition, construction, or rehabilitation of income targeted housing, under certain circumstances;
▸     authorizes up to 6% of the Olene Walker Housing Loan Fund to be used to offset administrative expenses;
▸     requires the Department of Workforce Services to create pass-through funding agreements;
▸     describes the minimum requirements of a pass-through funding agreement, including requirements that state funds be spent on certain affordable housing investments;
▸     modifies the Utah low-income housing tax credit;
▸     encourages the Utah Inland Port Authority, the Point of the Mountain State Land Authority, and the School Institutional Trust Lands Administration to, if appropriate, utilize land use authority to increase the supply of housing in the state;
▸     modifies reporting requirements; and
▸     makes technical changes.

H.B. 476 Municipal Land Use Regulation Modifications

This bill:
▸     requires a municipality to accept and process a complete land use application under specified conditions;
▸     modifies provisions relating to development agreements;
▸     modifies the limitation of a provision on building design elements;
▸     authorizes a municipality to require a seller to notify a buyer of water wise landscaping requirements;
▸     enacts language relating to residential rear setback limitations;
▸     modifies provisions relating to the review of subdivision applications and subdivision improvement plans;
▸     modifies a provision relating to the landscaping of residential lots or open space;
▸     modifies provisions relating to the enforcement of municipal land use regulations;
▸     provides an exception to the optional use of the Utah coordinate system; and
▸     makes technical and conforming changes.

Also another bill of interest out, that is not one of the expected bills (but is something that has been proposed before in previous sessions):

S.B. 185 Residential Building Inspection Amendments – this bill would allow an agency, regulator (city or county), or permit holder(!) to hire a third-party licensed inspector, and require that those inspection reports be accepted by the permit issuer.  Already have heard concerns from inspectors and others that this bill would allow a builder to hire his own inspector to do inspections and that those reports must be accepted by the city/county.  Potential conflict of interest here?

Also, not a new bill but one that the League and many communities are raising strong concerns about:

S.B. 172 Protection Areas Revisions – the bill essentially extends the rights and privileges for mining operations to “critical infrastructure materials” miners, that is, sand and gravel operations.  The League LPC committee on Monday took a very strong opposed position on this bill.  Here’s the rundown on what this bill would do:

Expands definition of mine operator to include the owner of a mining use in a notice of intent ● Expands the mining protection area vesting from existing operations to future mines if the area hasn’t been excavated ● Extends critical infrastructure operations preemption to acquisition of adjacent property regardless of whether it has been excavated. ● Extends vesting to mining property if mining operation was conducted on any portion of the property. ● Removes the ability of local governments to choose the minimum acreage in a protection area. ● States that critical infrastructure protection area applications are deemed approved if the local government does not take action within 120 days ● States that critical infrastructure material land uses maintain their status even if annexed by a municipality. ● Protection areas cannot be terminated by a municipality unless the area has not been used for the purpose in prior 15 years. ● Allows local governments to impose reasonable conditions on protection areas if there is clear and convincing evidence that they present an imminent danger to public health, safety, or welfare. ● Extends nuisance preemption to mining protection areas ● Prohibits eminent domain of mining protection areas ● Modifies the notice requirements for eligibility ● States that if a party unsuccessfully challenges vested mining use declaration, they are responsible for the costs incurred by the mining operator (including attorneys fees) ● Presumes critical infrastructure materials operators that are permitted or legal NCUs to be protection areas ● Presumes critical infrastructure materials operations have been established unless a person claiming otherwise has clear and convincing evidence to the contrary. ● Automatically extends protection area preemption to critical infrastructure operators.

That’s a lot of pretty dramatic changes.  The bill has been assigned for hearing to the Senate Economic Development and Workforce Services committee, but has not yet been scheduled for hearing.

ON PADDLING DUCKS

January 30, 2024

The scene at the legislature on land use issues right now seems to me to be much like a quiet pond with ducks flitting around.  All looks calm and peaceful on the surface, but go just under the surface and you’ll see that the ducks are paddling like crazy.

The Governor’s Senior Advisor on Housing Innovation, Steve Waldrip, attended yesterday’s League Legislative Policy Committee meeting.  Not a lot of new things were unveiled in his remarks, but he did express support for the idea of working together with local officials to produce some meaningful action on housing affordability, particularly for starter homes.  Steve even acknowledged that by and large, local officials are aware of the issues and being supportive of such efforts.  He noted that cities have entitled a large number of new lots for residential development, but that they are not the ones who actually make the building of new homes happen – that is done by the private sector and building community.  Steve expressed his intention to work cooperatively with local governments to find workable solutions.

The tone was somewhat the same and, also, somewhat different in comments made by legislators in a story today in the DesNews – Utah needs 37,000 more homes — are smaller homes and lots the answer?

The story gives a pretty good overview of what’s going on underneath the surface of the pond right now, as we await the big pieces of legislation that were worked on over the interim by the Land Use Task Force and the CHA/UEOC.  The sponsors of those bills, Rep. Whyte and Sen. Filmore, continue to express their willingness to work with local governments to craft solutions:

In addition to the governor’s budget proposal, the commission Fillmore and Whyte chair has produced a number of other recommendations with local officials, industry experts, business leaders and stakeholders.

Whyte said to expect lawmakers this session to pick up policies facilitating the construction of starter homes by allowing smaller lots and smaller home sizes in zoning plans.

“The challenges and the opportunities are in the details — how to do that, while respecting local control, local decision-making within each of the cities, and to also help identify what can be done statewide to be able to help as well,” Whyte said.

Whyte said in his experience, local officials in Utah have recognized the gravity of the state’s housing shortage and have been willing to contribute to the solution.

“Cities and counties, and the state, and homebuilders are working together right now collaboratively to make homeownership possible, especially for first time homebuyers so the American dream of homeownership can continue to be a reality,” he said.

The tone is somewhat different with Rep. Ray Ward, the legislator who is sponsoring H.B. 306 Residential Housing Amendments, which would set minimum lot sizes for residential zones in much of the state (see previous postings for details).

Rep. Ray Ward, R-Bountiful, the author of a successful 2021 bill that forced cities to allow more mother-in-law apartments, introduced another major reform to city zoning practices this session that he says reflects the need to take a centralized approach to a statewide problem.

“Things are going awful,” he said. “I hope everybody’s thinking about it. And when something’s going really bad, it is good to zoom out and say, how did we even get there?”

Ward’s bill, HB306, which is currently sitting with the House Rules Committee, would require urban municipalities to approve single-family starter homes — defined as a home below the area’s mean home price — on one-eighth of an acre.

But this provision would do almost nothing by itself, Ward said, because cities can often cite other regulations that would make it unrealistic for developers to build smaller homes on smaller lots. So to avoid similar work-arounds, Ward’s bill would categorize starter homes as “permitted use” in residential zones in urban municipalities, which would include Davis, Salt Lake and Utah counties, as well as some cities with over 15,000 residents.

Ward is ready for pushback from those who say it is not conservative to override local preferences with state mandates. But just as the federal government delivers edicts regarding problems that effect the entire country, Ward said, so should the state be able to implement requirements to remediate statewide struggles.

“It’s not a citywide problem; It’s a statewide problem,” Ward said.

Rep. Ward has not been involved in the discussions that Rep. Whyte and Sen. Filmore have undertaken in the CHA/UEOC and have some measure of local support for.  Sounds like a battle of dueling approaches is shaping up.  And more to come.

In the next week or so, additional legislation can be expected, Fillmore and Whyte confirmed, potentially dealing with home lot sizes and standards for modular housing.

“It’s going to be a discussion we have for a while,” Ward said. “I think it will take multiple sessions of thinking about it and going back and forth. But I don’t think we will ever get housing affordability unless we make some changes kind of like this.”

On other fronts in the housing affordability scene, the bill to standardize building and inspections codes for modular housing is moving forward, with broad support.  Here’s a story about it – This technology could help build more houses, faster. The Legislature wants to get involved.

And the bill to allow for the creation of a different kind of infrastructure improvement district (like PIDs, but different) – H.B. 13 Infrastructure Financing Districts – is moving forward with at least some local government support, or at least openness to the idea, with the workout of some details needed.  The bill was passed out by committee last week on a unanimous vote.

Keep paddling!

THE PHONY WAR?

January 24, 2024

Do you all remember the term “phony war” from the beginning of World War II?  After Germany’s blitzkrieg invasion of Poland and the declaration of war against Germany by France and the UK, for about eight months nothing much happened, before all hell broke loose.  That period was called the “phony war.”  We may be in just such a time right now at the legislature regarding land use measures.

Since all the flurry of new bills popping out every day just before and shortly after the start of the legislative session, things have gotten disturbingly quiet, at least on the surface.  No new bills to speak of since the last update, but methinks there’s a lot going on behind the scenes.  A solid piece of evidence of that is the update League Executive Director Cam Diehl gave at Monday’s Legislative Policy Committee meeting on H.B. 306 Residential Housing Amendments, the bill which would establish base minimum lot sizes (density) in most urban communities throughout the state.

Cam and team have been meeting with HB306 sponsor Rep. Ray Ward, and he seems to be sticking to his guns about the language of the bill, at least for now.  What Cam said they have also learned is that this is likely not the only bill that will be coming that will attempt something similar.  Sensing that there may be appetite in the legislature to pass something along these lines, Cam asked the attendees at Monday’s meeting to respond to a poll about what alternatives to base minimum densities they might be willing to accept, hoping to maybe tie such moves into the starter homes initiative by Gov. Cox and make it more acceptable to local government officials.

As I’ve noted in previous posts, HB306 is more similar to top-down zoning reform efforts that have been attempted in some other states, with mixed results.  Where such efforts were undertaken after discussion and negotiation with local officials, or directly by local communities (Minneapolis, Seattle, Arlington, etc.), implementation measures have gone fairly well.  Where it’s just been a state-level mandate, not so much.  There may well be ways to get these efforts accepted and implemented.

Discussion of acceptable alternatives got me thinking about how in some states and cities, zoning reform has taken the character of allowing for more and varied housing on existing residential lots.  This is often characterized as the end of exclusive single-family zoning.  Rather than setting minimum lot sizes or densities, some of these new measures have stipulated that any existing residential lot can have duplexes, triplexes, or sometimes even more, so long as minimum yard requirements can be met.  This to me seems like an alternative worth considering.  I grew up a half-block north of Liberty Park in Salt Lake City, in a single-family house on a small lot.  Most of the dwellings in our neighborhood were like ours, but mixed in there were also some duplexes, triplexes, and at the end of our street a 4-unit two story apartment building.  It all worked just fine.  The neighborhood environment did not suffer – in fact, it was even better in lots of ways.  Maybe, rather than mandating minimum lot sizes, requiring that some percentage of communities’ residential zones must allow for such a mixture of housing types (missing middle housing, actually) would be a way to go.  Just sayin’.  The League, by the way, has taken a position of opposing HB306, primarily because it overrides local land use control.

Okay, there has been some action on a few of the bills we are following, so to bring things up to date:

H.B. 256 Military Compatible Land Use Amendments has been substituted to say that instead of the State Department of Veteran and Military Affairs having essentially a veto power over newly proposed land use applications within 5,000 feet of a military facility, it now says that the local government must consider the joint compatible use plan in reviewing and approving the application, unless the application has an established a vested right, in which case it can be approved as proposed.  The bill was voted out favorably by committee with this change.

Other bills that have had substantial language changes are H.B. 11 Water Efficient Landscaping Requirements, and H.B. 65 Active Transportation and Canal Trail Amendments.  Take a look at the links if you have interest in these bills.

Also, H.B. 188 Building Permit Requirements, H.B. 258 Airport Land Use Amendments, and S.B. 13 Education Entity Amendments have been passed out of committee pretty much as is or with minor amendments, and await votes in their respective chambers.

JUST WHEN THE WAR HAD COOLED OFF…

January 19, 2024

A quick note about of couple more bills that have come out.

S.B. 118 Water Efficiency Amendments – would establish a program to provide incentives for new developments to incorporate water-wise landscaping.  Not a bad idea.  Not sure how that would be justified if local ordinance would already require such landscaping in new development.

The second bill is, to me, a continuation of the long, long running annexation wars in Salt Lake County.  The bill, H.B. 330 Unincorporated Areas Amendments – applies only to Salt Lake County (site of much of the early days action in the annexation wars), and would automatically annex all unincorporated islands into the most populous adjacent city.  I can’t imagine this is going to go over well with some of the most vocal citizens of places like White City (much of it surrounded by Sandy City).  Here’s a description of the circus in the 1990s that a wrote a while back, that led to the mess of the state annexation code we now have.  It’s in the plan to get the rewrite of that code going in this legislative session.  This bill would just complicate that effort, I’m sure.

I’m getting more comments about how the wildlife planning bill – H.B. 195 Land Use Planning Amendments – would really make it problematic to amend local land use ordinances, because the way the bill is written, it would require any proposed change in the ordinance to conduct a wildlife assessment.  Wow!

Also, what with this bill, and the riparian areas planning bill – H.B. 243 Riparian Amendments – and other recent general plan requirements like the water planning element and the moderate income housing element, and maybe more coming, doing a general plan may become … undoable!  At least pretty long and expensive.

That’s it for now.

COLLABORATION – THAT’S WHAT IT’S ALL ABOUT

January 18, 2024

In yesterday’s post, we highlighted the bill that would establish a base minimum lot size for all urban communities – H.B. 306 Residential Housing Amendments – and noted that it resembles more what has been transpiring in other states regarding zoning reform.  Here’s just a recent example, as reported in Governing magazine, from Washington State:  Washington House Passes Bill to Allow Splitting of Residential Lots.

Under the proposal, most large cities could no longer prohibit property owners from splitting lots. There are some restrictions. The new lots would need to be no smaller than 2,000 square feet, at least 40% of the size of the original lot and could not require the demolition or alteration of any affordable housing.

Among the comments I’ve gotten back about the bill is the question of why 5,400 square feet is the “magic” number.  In the Washington bill, the allowance is for lots as small as 2,000 sf, along with some other provisions.  The Washington House passed the bill on a 94-4 vote – pretty remarkable.  The Washington bill did not pass in last year’s legislative session, but did on the first day of this session.  Another story about the state’s housing bills notes that the bill sponsor took the time to work through the issues with local government officials.

This year’s momentum comes after Bateman’s middle housing bill and another piece of legislation to expand accessory dwelling units both stalled last year. After that, Bateman began meeting regularly with the Association of Washington Cities and others to hear their concerns.

May be a lesson there for our own legislators trying to move zoning reform forward.

On another front, here’s an interesting story about the bill giving eminent domain power for the Bonneville Shoreline Trail – H.B. 235 Eminent Domain Amendments.

JUST..DO WHAT I SAY, OKAY?

January 17, 2024

Well, speak of the devil!

Yesterday we noted that a KSL news story confirmed that there was a bill in the works to set minimum base densities for many Utah communities, by Rep. Ray Ward.  And then later that same day, viola! Out comes the bill!

The bill is H.B. 306 Residential Housing Amendments.  It would define what a starter home is, an issue that has been the subject of some debate in the land use task force and CHA (no single definition was agreed upon by these groups – yet!).  The bill then says,

 An urban municipality may not deny approval of a lot in a residential zoning district, based on lot size, if the lot is at least 5,400 square feet in size.
A starter home is a permitted use in a residential zone of an urban municipality.

Just like that, the bill would do away with any residential zoning that, in “urban municipalities,” requires minimum lot sizes larger than 5,400 square feet.  While this would be more in line with what we’ve been seeing happening in other states on zoning reform, it goes farther than many of these in that it sets a uniform minimum lot size.

The real problem is that this bill has not been discussed with the LUTF, the CHA, or the UEOC, nor with any communities that I’m aware of.  Why the bill sponsor wouldn’t at least attempt to make such an effort is kind of mystifying.  The UEOC, as we’ve reported earlier, included this issue in a list of topics on which discussion should continue, but was not yet ready for legislative action.  I’m going to predict right now that this bill will run into a buzz saw of opposition.

We’ve also demonstrated in several previous posts that in states where zoning reforms are imposed top-down from the state level to locals, usually without significant involvement of local officials to craft those reforms, implementation is weak.  This is confirmed again in a recent story about zoning reform, States increasingly join the land use reform rodeo.  The story quotes Nestor Davidson, a property and urban law professor at Fordham University:

“It requires a balance,” Davidson said. “I think it’s as much a mistake to ignore the regional and statewide implications of local land use as it is to have the pendulum swing the other way and make this purely a state issue.”

The story also notes the recent lawsuit that has put a hold on many of the zoning reforms enacted in the “Montana Miracle” (see previous posts), and says,

The conflict mirrors a broader tension between residents, cities and states and underscores the importance of collaboration across governments, one expert said.

The injunction “reflects similar tensions that are playing out in states across the country as states are reconsidering the primacy … of single-family housing in local zoning,” said Davidson.

While the goal of Rep. Ward’s bill may certainly be laudable and should be considered, there’s a better way to go about it, for it to have a good chance of actually being implemented.

Elsewhere, we must make note of another bill we’ll be following.  Friend and colleague Nick Norris, Salt Lake City Planning Director, brought to our attention a bill that is pretty much identical to one that was filed last year (but did not pass), with an innocuous title but with considerable land use impact.  The title of the bill?  S.B. 13 Education Entity Amendments.  The bill would create a couple of new kinds of private educational facilities (home-based education entity and micro-education entity) and would essentially give them the same pass on land use regulation that charter schools have.  Last year’s bill failed to pass, I think, because there were lots of questions about what these educational entities are and if they were really needed.  Thanks for the catch, Nick.  It’s added to our list of bills to follow, now up to 17!

IT GETS EVEN MORE “INTERESTING”

January 16, 2024

One more bill of interest that was released yesterday – HB289 – Property Rights Ombudsman Amendments.  The bill has mainly to do with ombudsman advisory opinions and if the issue is then still taken to court, if the court rules the same way as the ombudsman opinion, legal costs can be recovered by the prevailing party.  Language to that effect has always been in the code, but this bill strengthens and redefines it.

The more interesting stuff is the couple of news stories that have come out in the last few days about some of our bills of interest.

First are a couple of stories about the bill modifying the provisions for Scenic Byways, most notably the makeup of the Scenic Byways Committee.  SB28 – SCENIC BYWAY PROGRAM AMENDMENTS

The bill would make it a non-permanent body, to meet only upon the call of the chair, and modifies the membership of the committee.  Most controversial is the addition of a representative of the outdoor advertising industry to the committee.  Here’s the stories about those who are not pleased with the proposed changes:

Bill would give billboard companies too much power – Park Record

The group that manages Utah’s scenic byways may soon have a new member: someone from the billboard industry. – Salt Lake Trib

The other news story of interest is from KSL News – Smaller households to dominate Utah’s future. Can walkable neighborhoods accommodate them?  It’s a pretty good piece, talking a lot about neighborhoods, housing and walkability.  It does go on to talk about what may happen in the legislative session, much of which isn’t new to us.  But there was an interesting reveal – the legislator who is working on the rumored bill to establish minimum base densities for all communities in the state.  It’s Rep. Ray Ward of Bountiful, who also did a lot with the legalizing of Internal Accessory Dwelling Units over the last couple of years.

Housing in Utah is one of the most expensive among Republican states, Ward said, that’s why fewer restrictions would help the free market work.

“To me, it’s really time for us to stop choking off building of housing, in particular smaller housing on smaller lots,” he said. “We just need to let that happen.”

This year, Ward is working on a bill that would require cities to allow up to eight single-family homes per acre in residential zones.

“The city still can forbid a duplex or fourplex or triplex,” he said. “But if it’s a home where it’s one family and one home that lives there, then they would have to allow smaller lots.”

Additionally, the bill states that if a builder is willing to sell those kinds of homes to someone who is willing to occupy them for at least five years at a lower-than-average price, the builders wouldn’t face other zoning restrictions, including leaving the majority of the lot’s ground open, or leaving a certain amount of space between property lines.

This really sounds a lot like the efforts at zoning reform that have been instigated in other states around the country.  This is also a concept that was being discussed by the CHA and the UEOC, but had not gotten enough discussion and agreement between the relevant actors.  The UEOC included these ideas in a list of proposals that were not ready for legislative action, but that should continue to be discussed and negotiated.  It looks like Rep. Ward doesn’t want to wait and is going to force the issue.  This could be a bill that will take a lot of time and energy, unexpectedly, this session.  Watch this closely.

Okay, that’s it for now.  The session begins today, and with the number and variety of land-use related bills, I think we’ll all be busy!

HISTORY IS AN ARGUMENT WITHOUT END

– Pieter Geyl, Dutch historian

January 15, 2024

We noted early on that, with all the attention that was being given to the housing affordability issue, this was likely going to be a “historic” legislative session for planning and land use bills. Things are certainly shaping up that way. The session hasn’t even started yet and we are already tracking fifteen numbered bills, only one of which was specifically discussed by the land use task force (LUTF) or CHA during the interim (that one bill is HB0013 Infrastructure Financing Districts).  A couple more bills that were just added to that list are:

HB0151 Public Lands Amendments – the state Office of Public Lands Coordinating would be required to produce an inventory of all federal BLM land within the boundaries of municipalities, and list what the municipality has planned as the intended use for that land, “including for recreation, economic development, affordable housing, or other use.”  The municipality may also notify the Office of any plans it may have for BLM property within a half mile of the current municipal boundaries.

HB0175 Impact Fees Amendments – would remove the restriction on using impact fees for a local government to acquire “fire suppression vehicles.”

HB0180 Short-term Rental Amendments – this topic was the subject of a couple of bills during the last legislative session, which were ultimately pulled in favor of having a working group address the overall issue over in interim and come up with a more comprehensive bill. This is that bill.  It would add a new section to the LUDMA stating that a local government that intends to allow STRs must adopt new regulations regarding them, that must comport with the newly enacted Chapter 31 in Title 57-Real Estate of the state code, also in this bill.  Pretty detailed and comprehensive approach to STRs.

HB0188 Building Permit Requirements – simply says “After issuance of a building permit, a municipality may not change or add to the requirements expressed in the building permit.”  Bills like this are often prompted by a specific instance or problem in a community somewhere, and rather than passing a new law that affects everyone , the situation might be better handled on an individual basis.  That was in part why the LUTF was instigated, and why bills like this could/should be vetted through there.

HB0258 Airport Land Use Amendments – you might recall that in last year’s legislative session a bill was passed that required any local entity within 5,000 feet of a public airport runway to prepare a compatible use plan and adopt overlay ordinances addressing those compatibility issues.  This bill would essentially require the same for private airports that meet the definition of being “significant.”  The bill defines that as “a private airport that:

(a) is registered with the Federal Aviation Administration;

(b) appears on aeronautical charts published by the Federal Aviation Administration;

(c) has more than 50 based aircraft; and

(d) has significant infrastructure investment, such as paved runway, lighting, and fuelfacilities.”

All these new requirements are done by adding another new section to the LUDMA.  Let me tell you, folks, the LUDMA over the last few years has gotten huge and increasingly complex, and that trend continues.  Making sure you comply with all its provisions, well, good luck!

Okay, that catches us up on all the relevant bills filed so far.  We still have all the bills enacting the things agreed on by the LUTF, the CHA, and the UEOC, to come, plus probably even more bills like these early ones.  Who said there should be some restraint on new laws going forward?

Adding to the sense of the unprecedented nature of this upcoming legislative session on planning and land use, are a couple of recent news reports.

Here’s a story in the DesNews from the weekend about the legislative audit on housing affordability (finally!).  The title is rather provocative, particularly for local government officials – Why zoning is key to watch as Utah legislators tackle the issue of affordable housing. https://www.deseret.com/utah/2024/1/13/24031048/utah-housing-bills-2024

While there’s really nothing new in the story from what we learned when the audit was first released in November, it is interesting to see the writer’s highlights of the report.  The emphasis seems to be more on the measures the state could take to “impose” policies and metrics on the purveyors of that zoning, the local governments.  For example, the story particularly notes that,

The audit report mentioned that California’s local governments have to submit plans where they will rezone land. If the plans don’t account for their portion of the growth forecast, then penalties are prescribed. “We believe the Legislature may want to consider similar options to benchmark moderate-income housing plans to Utah’s official projects for household growth. Doing so could allow local governments the flexibility to accommodate their portion of Utah’s population growth as they see fit,” the report said. Bills that have to do with zoning for houses is something to watch as the Utah Legislature will grapple with how to best create affordable housing.

But much of the evidence from around the country appears to show that top-down state policies imposed on local governments seem to encounter struggles in implementation, as we’ve noted in a number previous blog posts.  A recent piece by KUER news (https://www.kuer.org/politics-government/2024-01-09/policy-not-funding-is-the-way-out-of-utahs-housing-crisis-says-speaker-schultz) notes,

The decisions concerning where housing gets built are made by local planning commissions and city and county councils, not the state. Then there’s a question of defining what a “starter home” even is. Is it a townhome or a condo? Or is it a single-family home that’s priced in a way a first-time buyer can afford? That’s a question local officials already grapple with.

Newly installed House Speaker Mike Schultz said in the KUER story,

“The right approach is working with the local governments to say, ‘Hey, we need to create opportunities for homeownership,’” he said. “What may be good for one community may not be good for another community. We need to be giving the local governments the flexibility to make it work inside their communities.”

[Cities] have an obligation here to provide some housing for your kids and grandkids,” he said. “Working with them to try to help them find the right locations for that is crucial because it doesn’t just fit everywhere.”

It’s really shaping up to be an interesting … no, wait, a historic … session!

OH NO, MORE BILLS!

January 12, 2024

Well, I spent some time scrounging around on the Utah legislature’s website and found several more bills, listed under non-obvious categories, that would directly impact local planning and land use regulation, if they pass. Again, these are bills that have not been vetted through the land use task force, or even the CHA (commission on housing affordability).  Would be helpful, for both the bills themselves and communities, if they would.

Here are the bills:

H.B. 243 Riparian Amendments – this bill would add another element that would have to be included in municipal and county general plans, addressing riparian areas.  In yesterday’s post, we talked about a bill that would require local plans and land use regulations to consider impacts on wildlife and how problematic it would be, given the way it was being placed in the LUDMA.  If it is to move forward, we would recommend that it be more like this bill.  However, here’s our concern – in the last couple of years, there have been several new required elements added for general plans.  Doing a general plan now means a lot more work and likely hiring of various experts to meet all the requirements.  We indicated a couple years ago our concern that given this trend, general plans could become quite unwieldy and expensive to do if many new required elements were added.  Not only the number and range of topics, but the detail that was being put in the code with these new elements (take a look at the water element, for example!) could really make it tough.  Not so sure this is a good trend – what’s next?  https://le.utah.gov/~2024/bills/static/HB0243.html

H.B. 11 Water Efficient Landscaping Requirements – while this bill would not make any changes in the LUDMA, it does impose restrictions on the use of lawn and turf for landscaping.  Interesting bill, intended to enhance water conservation.

https://le.utah.gov/~2024/bills/static/HB0011.html

H.B. 256 Military Compatible Land Use Amendments – you might recall from the last legislative session a bill that required for all new development proposed within 5,000 feet of military land, the local jurisdiction must notify the state Department of Veterans and Military Affairs. The department would then have 90 days to respond, before any action could be taken on the development application (applications for single structures are exempt).   The bill says that if the department determines that the application is deemed incompatible by the state department, the “municipality should not allow” the development.  Now, the bill does not say “shall not,” just “should not.”  Does that mean the city could still allow the application even if the department says no?  Lawyers? What say ye?

https://le.utah.gov/~2024/bills/static/HB0256.html

And finally, a bill that’s just kind of a personal pleasure for me,

H.B. 235 Eminent Domain Amendments – this bill states explicitly that eminent domain power is available for the Bonneville Shoreline Trail.  For a long time state law has said that the eminent domain power cannot be used for trails, the result of a big political fight over a particular trail action a number of years ago.  There have been several attempts to overturn that restriction over the years, but they have not succeeded.  Hope this bill can crack the armor!

https://le.utah.gov/~2024/bills/static/HB0235.html

That’s it for now, plenty more to come in the days ahead.

THE AVALANCHE IS STARTING!

January 11, 2024

More bills are popping out at the legislature, and as we warned, these early bills are not ones that have been part of the discussions by groups like the land use task force, the commission on housing affordability, or the UEOC.  They are usually something a single legislator is doing in response to a concern or issue by a constituent(s) or a community in his/her district.

That may well be the case with these two bills.  The first is HB195 – Land Use Amendments https://le.utah.gov/~2024/bills/static/HB0195.html.  The purpose of the bill is a laudable one, to consider the impacts of development on wildlife.  But the way this bill would put that into the LUDMA – well, let’s just say, it would likely be a burden.

In the general plan section of LUDMA, the bill does not make consideration of “the impacts of development on wildlife, including the impacts on wildlife movement and wildlife habitat; and how the impacts described may be mitigated” one of the elements of the general plan.  It is placed in the code so that such evaluation needs to be done for all of the other elements and the plan overall.

But wait, it gets better!  The bill also places this language in the section of LUDMA on enactment of land use regulations.  It’s location in the code is such that any time a local body is considering adopting or amending a land use regulation, this wildlife impact evaluation must be performed.  Wow!  The effect that this would have on cities and towns and counties any time they want to make changes to their land use or zoning codes is best summed up by a friend and colleague, North Ogden Planning Director (and APA Utah legislative committee co-chair) Scott Hess:

This is not going to be an area of expertise for Planners, PC Members, or even City Council members. This will require a third party review and assessment of “wildlife impacts”. This feels like an environmental assessment level of analysis, and that seems costly and time consuming.

The other bill is HB237 – Land Use Authority Amendments  https://le.utah.gov/~2024/bills/static/HB0237.html. Here’s the relevant language from the bill:

“aesthetic feature” means a characteristic of a structure that relates to the color, architectural style, type of facade, or other aesthetic quality of the structure.

  A municipality may not require development that occurs on or after January 1, 2025 to incorporate an aesthetic feature preferred by the municipality unless the preferred aestheticfeature is expressed in the municipality’s land use regulation.

The question about the language of this bill quickly becomes, how does it relate to the recently adopted prohibitions on regulating residential building design in Section 10-9a-534 https://le.utah.gov/xcode/Title10/Chapter9A/10-9a-S534.html?v=C10-9a-S534_2023050320230701. One answer is that this new bill language would apply to all other buildings. That would seem to be the case considering where it is placed in the LUDMA – in Section 501, the enactment of land use regulations.  Thus, the bill would likely apply to everything else – multi-family residential, commercial, industrial.

The question then becomes, because it applies more generally, would that mean it overrides the provision in Section 534 which allows for residential building design standards to apply in development agreements?  Must those agreed-upon provisions have been adopted into the local land use code?

What would this bill mean for such innovative actions like this one described in a recent issue of Build Salt Lake?  https://buildingsaltlake.com/builder-aims-elevate-design-with-new-density-in-suburban-herriman/?utm_source=rss&utm_medium=rss&utm_campaign=builder-aims-elevate-design-with-new-density-in-suburban-herriman&ct=t(RSS_EMAIL_CAMPAIGN)

Lots of questions, lots of potentially unforeseen impacts.  That’s why we urge that land use bills be run by the land use task force first!

LOTS OF THINGS FLOATING AROUND

January 9, 2023

We indicated in an earlier post that there were ideas of how to address the housing affordability crisis adopted by the Unified Economic Opportunity Commission, but were not endorsed by consensus of all the parties negotiating about them in the Commission on Housing Affordability.  One of these ideas was to consider establishing minimum base densities for communities throughout the state, which rumor had it that there might be a bill being drafted to do so.

League staff has been working to put together some alternative considerations for such a move and has been asking local officials to weigh in on what they might find acceptable.  Questions that they have asked include:

• Should cities have flexibility to determine which residential zones the policy enabling starter homes should apply to?
• Should a policy enabling starter homes apply to a fixed minimum percentage of residential zones in a city?
• Should a policy enabling starter homes apply to all residential zones in a city?
• Should a policy enabling starter homes apply to all zones in a city?
• If a city does not adopt a starter home policy, what should the consequences be?
  • Existing Moderate Income Housing Plan consequences (ineligible for state transportation dollars and the 5^th 5^th cent sales tax for transit, and paying a fee to the Olene Walker housing fund
  • Default to a state-created starter home policy (like for IADUs)
• State code to require allowing 8 units per acre anywhere in a community, so long as 6 are deed restricted to be price capped and owner occupied
• State code to require cities to allow X units per acre of small lots or townhouses in Y% of the city
• State code to require cities to allow x% of residentially zoned areas to allow for small lots or townhouses, with credit for planned/existing units
• Requiring some plan pre-approval process for new housing permit applications

The League is interested in hearing from communities on these potential new code requirements.  Fire off an email to them if you have some thoughts.  Karson Eilers, keilers@ulct.org;  Meg Ryan at mryan@ulct.org

Related to this, the Utah Land Use Institute just recently sent its report to the State Division of Housing and Community Development on the workshops held in 2022 and 2023, with the feedback received from numerous local officials who attended.  Because of the volatile nature of the issue of local land use regulation and housing affordability, the Institute makes the following observations and recommendations:

We could summarize one dominating theme heard from the local officials in all our workshops – those who are on the front lines of growth – to involve the tension that exists between what local leaders hear from the vocal members of their constituency and what the state legislature and agencies are asking those local leaders to do. Typical comments we heard repeatedly were:

• “Give us time to comply with last year’s mandates before imposing new ones.”
• “You say you want to listen, but then you go ahead and impose more rules.”
• “Our situation is unique – you just don’t understand what we are up against here.”
• “You can’t impose statewide solutions on local problems.”

We heartily endorse the initiatives proposed by Governor Cox in his FY2025 budget and the Utah First Homes initiative to build 35,000 starter homes in the near-term future. These goals and strategies to achieve them should be pursued in a manner consistent with what we have heard throughout the state.

We believe that the state-wide initiatives and incentives are essential. That said, we recommend a very specialized and targeted series of additional workshops. There should be a very focused and earnest local conversation as well – city by city. We recommend:

• Make a mathematical calculation as to how the 35,000 starter homes set as the state-wide goal could be logically distributed across the area where they are most needed. Determine informally a “target” number (not a mandate or quota) of starter homes which could be built in each of the several hundred communities where such housing is needed.
• Identify communities where specific conversations are to be initiated related to the need for starter homes in those communities.
• Someone from the Governor’s Office (ideally the Senior Advisor for Housing Strategy and Innovation), or the Director of the DCHD, could meet with city officials in each identified community in a very personal and informal manner. o First, listen to the comments that local leaders may wish to offer.

o Then discuss candidly why the housing issues we face must be a priority concern to them, options as to how the local officials can address those issues, and what the state can do to do to support them.

o In that initial visit, and throughout the process of encouraging local accommodation of starter homes, act with all the diplomacy and sensitivity that can be mustered. The prime focus of each visit should be to listen and respond with resources.

o In a tactful and collaborative manner, explain that the current housing problem is not going away – it must be addressed. Discuss how we can solve it most efficiently and effectively together, city by city, in a manner consistent with state-wide initiatives.

Explain that the clear alternative, as outlined in the Performance Audit of Utah Housing Policy published by the Office of the State Legislative Auditor General on November 14, 2023, is to consider local “targets” in the form of individual city mandates. Information can be shared on how continued inaction toward our commonly shared goals for more equity and opportunity in housing may likely result in state requirements that few really wish to impose or administer.

o Set a collaborative plan going forward, to be monitored and evaluated by state staff with objective criteria. The plan should address the issues a given city may face and how to resolve them in a team approach. Use as many local leaders as possible in working toward solutions for that community.

o Marshal the resources needed and engage all involved, both private and public, including builders and housing non-profits – to work together to achieve negotiated results.

o Support the consensus reached in each community with strong state staff support and determined follow-through so the result is not another program in a binder on a bookshelf, but actual construction on the ground.

• Consider asking the legislature to amend the requirements for the moderate-income housing plans imposed on cities so that if a workable plan is negotiated with a given city, the reporting requirements imposed by the current statute can be modified or waived.
• Use the consensus gained as well as the education that will undoubtedly come from these conversations to refine state policy, state resources, training opportunities, state public information systems and other tools used to address our housing issues and needs.

It’s an ambitious recommendation, but one that would likely produce more embraceable policies and actual on-the-ground results.

IT BEGINS – AND THE MONTANA MIRACLE GLITCHES

January 5, 2023

The start of the legislative session is now only a little more than a week away, and bills are beginning to pop out.  One that has just come out is the same as one that was introduced near the end of last year’s session, H.B. 135 County Land Use Amendments.  The bill is a response to the crazy action taken last session when the legislature in essence gave approval for a proposed development in Summit County because the county had not taken action to establish an HTRZ (see March 4 blog posting).  This bill would rescind that action.

There is also a new, revised bill on developer-initiated infrastructure districts, H.B. 13 Infrastructure Financing Districts, which is still being carefully worked over by local government officials.  And a bill that would essentially do away with the Scenic Byway Committee and reassign and restructure how the program would work – S.B. 28 Scenic Byway Program Amendments.

There is also a bill in the works titled “Local Government Zoning Amendments” by Rep. Ray Ward, which I suspect may be similar to a bill he sponsored in the 2022 legislative session that would have prohibited cities and counties from enacting ordinances that would require lawn or turf landscaping.  The bill failed to pass.

Not to be a “told you so” snitch, but…  The famous Montana land use bills that were adopted in 2023 (see blog posts dated March 7 and May 8), that have earned that state a reputation nationally for the “Montana Miracle”, are facing strenuous legal challenges.  According to a January 2 story in the Montana Free Press, a court order keeps two of the four laws passed by the Montana state legislature from taking effect January 1.

The legal action is a restraining order intended to keep the laws from taking effect until the issues claimed in the suit challenging the bills can be heard and ruled upon, so a determination as to the legitimacy of the bills has not yet been decided.  But there are some interesting and ominous threads in what has been happening so far.

To be fair and accurate, the ruling does not affect the pivotal Montana Land Use Act bill, at least not yet.

Left in effect for the time being is the new Montana Land Use Planning Act, the broader land use planning framework that passed as Senate Bill 382, and Senate Bill 245, which requires cities of 7,000 residents or more to allow apartment-style housing in most areas zoned as commercial.

The two blocked laws are Senate Bill 323, which would require cities with 5,000 residents or more to allow duplex housing on any home lot, and Senate Bill 528, which would require cities to adopt regulations allowing more construction of accessory dwelling units, or secondary housing structures that share parcels with larger homes.

Readers of previous blog postings will know that I have been documenting for some time the rough go that top-down state land use reforms have had in being implemented at the local level as communities push back on measures they feel they have had little input on.  While the bigger Montana Land Use Planning Act was passed with bipartisan support and buy-in from local governments (much of the bill was written by Montana League of Cities and Towns Executive Director Kelly Lynch), that was not the case for the two injuncted bills.

.. Lynch … drew a distinction in an interview between the Land Use Planning Act, which she said her organization had been working to develop for years, and the other three bills, which city governments had generally opposed as legislative mandates that they regarded as preempting local control.

“These are really, really complicated issues — and that’s why they are best dealt with, in detail, through the community process and through local elected officials,” she said.

However, the legal action that prompted the injunction came, not from any of the local governments, but from a Bozeman area homeowners association.

The Bozeman-based plaintiff group, Montanans Against Irresponsible Densification, or MAID, describes itself as a group of members who live in neighborhoods “characterized by single-family homes, attractive well-maintained yards, and quiet streets.”

The new housing laws, the group argues in the complaint filed in Gallatin County District Court, aim to impose “top-down ‘densification’” that will force them to live in more densely populated areas with larger buildings, more traffic and “any number of other changes that spur uninterrupted development under the guise of affordable housing.”

This shows once again how imposition of top-down measures may well run into opposition, delay, and foot-dragging at the local level and will have a hard time being implemented to achieve their ostensibly laudable goals.

While the problem with the two bills that are stayed appears to be unequal treatment of neighborhoods that have restrictive covenants vs. those that don’t, the Montana Planning Act bill may not be safe either.  The issue there seems to be when public involvement is most appropriate, and when it is not.

The homeowners group has taken specific issue with provisions of the Land Use Planning Act intended to focus public land use debates on the policy-level conversations that produce growth plans while scaling back the number of project-specific public hearings.

The bill expands the role of public involvement during the development of community plans phase, but then reduces or eliminates such involvement when specific projects are proposed under the newly adopted land use regulations.  Lynch said,

“Once you make zoning decisions for particular sites based on what the community wanted to happen there, if the developer comes in with a proposal that fits that, why are we making them go through the wringer again?”

The judge noted, however, that he agreed with the plaintiffs contention that public involvement at the project-specific level may be as important.

“Plaintiff has established,” he wrote, “that one of the main intents behind the new measure was to cut back on public participation at the project-specific stage — i.e., the stage at which new developments most imminently threaten Montanan’s living in single-family neighborhoods.”

This case will be well worth watching for how it plays out and what effect it may have in other places around the country.

SO WHAT’S THE PLAN?

Januray 2, 2024

At the start of the new year, as we also await the start of the legislative session, a couple of interesting things to be aware of.

As noted in recent postings, there’s been a lot of state-level action on housing and land use issues.  We’ve had the  legislative priorities from the Unified Economic Opportunity Commission, the Performance Audit of Utah Housing Policy by the legislative audit subcommittee, and the announcement by the Governor of his housing priorities and budget recommendations, including  the appointment of a Senior Advisor for Housing Strategy and Innovation.

The housing audit makes the recommendation that state officials should be more proactive in development statewide housing policies.  The Senior Housing advisor, former state representative and former Ogden Valley planning commissioner Steve Waldrip, however, was recently quoted in a Moab Times-Independent story saying that the way to perhaps accomplish this is to have the Associations of Government (AOGs) take a more up-front role.

Waldrip, the former state representative, wants Utah to explore empowering regional government bodies to develop housing policy. He said those entities could liaise between municipalities and the state, employing a more holistic view on housing challenges while still giving local governments a voice.

“Otherwise,” Waldrip said, “what happens is you get a law rammed down the throats of the local governments, and they immediately start looking for loopholes.”

Kind of what I’ve been pointing out in previous postings about what’s happening on zoning reform around the country.

The idea of viewing things from the perspective of the AOGs makes some sense, as each area of the state has some peculiar issues and characteristics, most obviously the more rural areas have a whole different set of problems than do the more urban counties.

This is apparent and emphasized in the recently released report from Envision Utah on BEST PRACTICES FOR HOUSING ATTAINABILITY.  The report gives,

7 recommendations for the state and regional associations of governments along with 6 recommendations for local governments

1. Education the public about the need for more housing

2. Develop materials for training local government officials about what they can do to promote housing affordability and how to address concerns.

3. Assist communities with transportation infrastructure to soften community opposition to more housing.

4. Analyze and address non-zoning barriers to condominium development to promote ownership opportunities.

5. Consider state-level financial assistance for structured parking in centers and transit-oriented developments.

6. Standardize plan review and inspection for offsite construction.

7. Conduct a more in-depth analysis of available land and water to understand where growth can and should go and whether planning is adequate.

We are only two weeks away from the start of the legislative session, and there are still plenty of ideas about how to deal with housing affordability floating around.  Some of these ideas are being drafted into bills, others not yet.  It’s going require careful attention to what pops out and what the bills say as the session moves along.  Stay tuned.

HOLIDAY ODDS AND ENDS

December 27, 2023

As we anxiously await the start of the legislative session next month (it begins on January 16), and we all take a break during the holidays, here are a couple of odds and ends that I found of interest.

The first is legislatively related, an opinion piece by Jared Whitley (a longtime DC politico, having worked as a writer and a communications guy in the US Senate and White House. In 2018, the Utah Society of Professional Journalists named him best blogger for his contributions to Utah Policy) in Utah Policy.  Echoing the observation of many that our state legislature has a lot of members who are involved in real estate and development, he opines, Is the day of the developer-politician over in Utah?

While many of Whitley’s observations are factually accurate:

As recently as 2016, the Federal Housing Finance Agency (FHFA) found that Utah had the 6^th best Housing Price Index (HPI) in the nation. But just a few years later we’ve dropped to 51^st – the worst in the nation.

… 26 members of Utah’s legislature – or about one-quarter of them – are professionally involved in the real estate industry – whether it’s “development, investment, consulting or management.”

Utah faces two enormous challenges. One, we’re such an undeniably well-run state in so many ways, there’s massive desire to live here. Two, while the state is very big, much of the land is super-remote, owned by the federal government, undevelopable, or all of the above.

The conclusions Whitley draws are … well, something I don’t necessarily agree with completely.  For example, he says,

Sure, we need developers. But maybe we don’t need developers who overwhelm local land use to massively enrich themselves.

The example he uses to show how they are enriching themselves is a particular bill in last year’s session:

…we saw one bill (SB 295) that would essentially, “create a new class of political entity that would not be governed by elected officials in the creation of those entities and would have property tax authority.” That is to say that the state could override the will of local leaders and their constituents to build whatever they liked. (It did not become law.)

Whitley’s analysis is not completely accurate.  While this bill would have allowed for financing and taxing outside of local government control, the point was to build infrastructure needed for new housing that the local government was not able to build, at least not yet.  Another similar bill is proposed for the upcoming session, with changes that would address some of the problems with SB295, and get the needed infrastructure (that would comport with local infrastructure plans) to accelerate the building of housing.

I also have to say that some of the legislators I have worked with over the years who were associated with the real estate/development industries were actually pretty good and responsive (not all, but many).

And finally, after reading Whitley’s piece, I don’t think he answers the question posed in the title – I don’t think I see from what he says how this presages the end of developer domination of the legislature.

Anyway, it’s still an interesting read.

The other odds and ends piece is one about whether zoning reform – the increase of density and housing diversity – actually results in more affordable housing.  This is a question I see being raised more and more by local officials as they contemplate making changes to their land use codes and zoning.

Written by Planetizen contributor Todd Litman, it is about Upzoning Affordability Impacts: The Latest Research.

Litman cites a number of studies that have looked at the question, with such conclusions as:

Recent studies support the conclusion that broadly-applied upzoning that allows more compact housing types (townhouses, multiplexes, and multi-family) in multimodal neighborhoods, with complementary policies such as reducing parking minimums, can increase housing supply, drive down prices, and increase overall affordability.

But Litman also notes,

This research has not prevented skeptics from arguing the opposite; that upzoning increases rather than reduces housing prices and reduces affordability. Such skepticism is understandable: housing prices tend to be higher in dense urban areas and a parcel’s value tends to increase if it is upzoned.

The bottom line of Litman’s summary is something that I have felt all along – the law of supply and demand will likely apply to housing as well, but we are a long way from having it actually make an impact because so much additional housing needs to be built to actually have an effect.  Yes, at some point we may have been able to build enough new housing to affect the price, but it’s going to take a while and a lot of building.  Litman acknowledges this point in his summary:

… upzoning a large urban area has very different effect: it creates a competitive market for land prezoned for higher density housing which minimizes lane value increases, as discussed in UCLA Professor Shane Phillips’ report, Building Up the “Zoning Buffer”: Using Broad Upzones to Increase Housing Capacity Without Increasing Land Values.

Recent publications shed more light on these issues. NYU professors Vicki Been, Ingrid Gould Ellen and Katherine O’Regan just released Supply Skepticism Revisited, which updates their 2019 report, Supply Skepticism: Housing Supply and Affordability. They conclude that, “rigorous recent studies demonstrate that: … (5) Easing land use restrictions, at least on a broad scale and in ways that change binding constraints on development, generally leads to more new housing over time.” However, they also conclude that upzoning alone cannot achieve affordability goals; it must be implemented with other policies.

Lots of interesting stuff in this, definitely worth reading if you’re considering “zoning reform.”

AND THE BEAT GOES ON…

December 19, 2023

The signs that the upcoming legislative session will be all about planning and land use regulation continue, with the opinion piece published today by Gov. Cox.  Titled Our kids need paths to homeownership. Here’s how we can help, it is a reiteration of the announcements he made at the unveiling of his budget last week.  Much of the piece is about the budget proposals to help finance housing affordability measures, but towards the end, Gov. Cox calls out citizens and local officials to be more proactive:

We need you to work productively with your local elected officials to help them find solutions to our needed growth. … Please join with me in providing solutions for housing instead of creating roadblocks. Support your local elected leaders as they tackle the incredibly challenging problem of growing wisely. I need your help, and our children are depending on it.

This sounds like a plea for continuation of the more or less collaborative effort between state and local officials to attempt to address the housing affordability challenge, which I’ve noted in previous postings is a positive thing.  In states where such measures are mostly a top-down mandate, local governments tend to resist and implementation is spotty at best (this piece by Anthony Flint, writing for the Lincoln Institute of Land Policy, details the challenges of implementing state land use reforms at the local level).

As I just wrote in a recent post, there’s a lot going on in Utah on land use policy, but it’s not getting as much attention nationwide as some other states are, I think because what we’re doing isn’t nearly as contentious.  Salt Lake City has gotten some attention for its recently adopted land use reforms, but all the stuff going on at the state level (housing audit, UEOC policies, governor’s housing initiative)?  The best I’ve seen was this piece in Axios that notes,

• Salt Lake City opened a pop-up park earlier this year to draw people downtown — an experimental prelude to plans for an ambitious “Green Loop” surrounding downtown.
• “In Salt Lake City, they’ve grown their foot traffic 140% since the pandemic because they created more opportunity and ideas for people to come downtown,” (National League of Cities Executive Director Clarence) Anthony said.

Not a word about our statewide land use reform efforts.

Will we keep up the collaborative effort on land use reforms in our fair State?  We can only hope.  Recall, from an earlier post (October 16), the list of priorities that the UEOC was forwarding for legislative action.  Along with that was a list of non-consensus issues that were discussed, but were not ready for action.  The intent was to keep talking and not lose those issues.  Here again is the non-consensus list:

• Prohibiting parking minimum requirements
• Prohibiting or limiting residential structure setback requirements
• Making general plans “binding” – that is, requiring mandatory consistency of land use regulations with general plans
• Establishing minimum base densities for communities
• Allowing local governments to be liable for damages/financial penalties for non-compliance with adopted land use regulations
• Establishing a land use appeal authority at the regional or state level

I’ve been hearing rumors that a legislator has opened a bill file, on his/her own initiative, that would establish minimum base densities for cities throughout the state.  Talk about creating an uproar!  But more critically, I think such a move would seriously erode the sense of collaboration with local governments that has been in place (more or less) in land use legislation efforts up to this point.  We could wind up being like a lot of other states, with top-down mandates to cities and counties, who would drag their feet and push back and delay or stymie implementation, all because they didn’t feel a part of the process.

But we’d likely make national headlines!

WE JUST DON’T GET NO RESPECT, KNOW WHAT I MEAN?

December 7, 2023

I’ve been noticing the attention that’s been cropping up around the country given to places that are actively reforming their local land use regulations, primarily for housing affordability, but for other reasons as well.  Montana has particularly gotten noticed for the restructuring of their state land use code in their last legislative session, but there have been plenty of others who have taken actions, included us right here in Utah.  And while many of these other states efforts have been noted, Utah’s actions are missing.  To wit, take a look at this story in Bloomberg’s CityLab, where the activities in these states were cited:  California, Montana, Vermont, Rhode Island, Texas, Florida, Arkansas, Maine, New Jersey, North Carolina, Ohio, Oregon, Washington, Wisconsin, New York, Colorado, Arizona, and even in New Zealand.  Any mention of Utah?  Not a word!

And yet, as we all know, plenty has been going on here in the Beehive State, it’s just been much lower key and more cooperative than what has been happening elsewhere (see previous posts). And that has probably been a good thing, allowing for changes that are more consensual and more likely to be implemented.  It just doesn’t make for good stories that attract attention, like in California or Colorado or in many other places

Well, hang on.  Things are about to get much more attention-worthy here.

On Tuesday, Governor Spencer Cox announced his 2024-25 budget proposal, and the dominant message in the press event held in a housing development in West Haven was, “We Need More Housing, Especially Starter Homes – Fast!”

Plenty of numbers were unveiled at the announcement – this was, after all, about the Governor’s proposed budget for the state.  He is proposing substantial investment in housing and infrastructure programs – WFRC’s newsletter summarizes  that well  https://myemail.constantcontact.com/Governor-s-Budget-Released—November-WFRC-Government-Affairs-Update.html?soid=1118153086076&aid=m6ZRilfCekc – which I have been saying for a while now that if we want to have any hope of making some impact on housing affordability in the short term, it’s going to take financial incentives/support.  So this is good to see, we’ll just have to see what the legislature does with this.

But the overriding tone of the budget announcement by Gov. Cox was all about the need to get everyone pulling together to see the increase in numbers of starter homes in the state.

Cox, joined by Lt. Gov. Deidre Henderson and Planning and Budget Director Sophia DiCaro, presented a proposal for the state to build 35,000 starter homes by 2028, catalyzed by what Cox calls the Utah First Homes program.

This initiative would seek to ease Utah’s housing crisis and forms the core of Cox’s budget recommendation for fiscal year 2025, which is titled “Utah Home.”

Gov. Cox continued his call for involvement from all actors in the housing markets.

“Just a message to our mayors and city council members out there, and to the good people of Utah: we all, every single one of us, needs to be involved in making this happen,” Cox said  “I know every city is different, every city is unique.  Some cities are mostly built out, but there’s infill opportunities within those cities.”

“I hope that there will be a little less NIMBY-ism around around these neighborhoods where there are starter homes for our kids and grandkids,” Cox said Tuesday.

Another challenge for the Cox administration could be getting developers on board with the governor’s plan.  As Cox pointed out at the news conference, large homes and rental properties … are often more profitable for builders.

The Deseret News Editorial Board, in an editorial yesterday about the proposed Utah Home budget and program, said,

Cooperation, persuasion, old-fashioned cajoling and even political pressure will be needed to bring about much of the governor’s budget agenda.

Cox said he already has had many meetings with the League of Cities and Towns, local governments and developers regarding starter homes. He has met with state lawmakers to hammer out goals and reconcile philosophies.

This is the type of hard work that leads to positive outcomes.

A few days prior to the budget unveiling, Gov. Cox had meetings with representatives from local government, from the housing industry, and others to make them aware of his intended policy priority and encourage them to work together and with the state to make it happen.  A local government rep told us that at the meeting, Gov. Cox in essence said he hoped the cities and counties would work with all concerned to make starter home availability better.  He then warned them, saying if they didn’t, the other players would find a way to do it without them.  To the building industry, Gov. Cox reportedly said that starter homes in Utah need to have a price of about $300,000.  The industry reps went through their cost factors, indicating that right now, under current conditions, that just wasn’t possible – not without other kinds of assistance and accommodation.  The Gov said everyone needs to work to make that happen.

To facilitate and coordinate the various actors that need to be involved in the Utah Home budget/program, Gov. Cox also announced:

… the creation of a new position within his office, that of housing innovation adviser — a full-time state employee tasked with engaging stakeholders on all sides to advance a comprehensive housing strategy for Utah. It’s a similar strategy to the state’s effort to help the homeless population by having a state director coordinate between the state and cities.

Cox reached out to both the Utah League of Cities and Towns and homebuilders for a list of preferred candidates for the job. Only one name appeared from both camps, he said: former state Rep. Steve Waldrip.

Waldrip, a former co-chair of the state Commission on Housing Affordability, will take on the role of working with and coordinating the housing affordability groups.  (Waldrip was named Elected Official of the Year by APA Utah a couple of years ago, and spoke at several ULUI and APA conferences).

You may recall that the state legislative audit on Housing a couple of weeks ago (see the Nov. 15 blog post), in its concluding recommendations, said that the state should take a bigger role in setting statewide housing policy.  This will also be a role to be taken up by Waldrip.

“His role will be to facilitate the development of a statewide strategic housing plan to guide policymaking to make sure every Utahn can continue to call Utah home,” Cox said during the press conference.

Cox did plenty to call out local governments on the housing affordability issue.  Waldrip carried that tone over to the developer side, saying,

“We’re asking (developers) not to lose money, but potentially not make as much money and to still be profitable, but not to maximize profit to the detriment of our state,” Waldrip said.  “And I think that’s an ask that is not hard for me to make, to say this is for the benefit of the community.”

So.  That, along with the various legislative initiatives already underway (see the Oct. 16-20 blog posts), gives plenty of cred to the fact that interesting things are happening in Utah on housing affordability and land use reforms, right?

Wait, we’re not done yet!

Also on Tuesday, the Salt Lake City Council, according to the Trib headline, embraces ‘monumental’ new incentives for affordable housing after yearslong debate.  On a 6-1 council vote Tuesday night, the new land use regulations:

(Provide) incentives aim to promote infill and more so-called missing middle housing by letting property owners build more dwellings per acre, add height and see expedited review at City Hall in exchange for guarantees some of the units they build will be affordable to residents with lower incomes.

All the councilmembers voiced at least some support for the changes.

“I know a lot of people are afraid about what changes this might mean for their neighborhoods,” said (Councilmember)Wharton. He told concerned residents to spend time in his District 3, which spans portions of the Marmalade district and The Avenues and a notable variety of housing.

“Single-family homes next to apartments next to condos next to townhouses next to historic mansions,” Wharton said. “You can have a neighborhood that has all of that and still has, you know, little stores and shops and restaurants that you can walk to.”

The new incentives, he added, would create “a similar and better result” in promoting housing diversity and mixed-income neighborhoods elsewhere in the city.

So.  There we go.  Not much worth reporting in the national media about what’s happening here in Utah, is there?

But I also gotta warn ya, the legislative session is shaping up to be … historic!

PLANNING COMMISSIONS – STILL USEFUL?

December 4, 2023

Last week, a member resigned from of the Salt Lake City Planning Commission, which wound up causing a bit of a sensation, enough so that it was picked up by a building industry newsletter and then by the Salt Lake Trib.

Given my past fondness and associations with Salt Lake City (I grew up near Liberty Park, graduated from the now-defunct South High School, and served as city planning director for six years), I thought I’d pick up on this as well as a way to comment on some important issues.

The resigning commissioner, Andra Ghent, is the director of the undergraduate real estate program at the University of Utah (also my undergrad alma matter – in the days before there were even a planning degree or a real estate program).  In her letter to Mayor Mendenhall, Prof. Ghent cited a couple of issues which she felt kept her from being able to be an effective commissioner – too much time spent on administrative matters rather than planning, and lack of expertise among commission members.  I agree with Andra on the first issue, but disagree on the second.  Here’s my thinking.

Prof. Ghent in her letter says:

Far too much meeting time is spent hearing verbal public comment on administrative matters. Not only does this waste commissioner time, it doesn’t serve the public. Most public comments on administrative matters are outside the purview of what the commission can consider and so the public usually ends up frustrated that they took the time to show up and then didn’t get what they wanted.

If you’ve been reading this blog a while, or if you’ve been to any land use conferences the last couple of years, you’ll know that I am very much in agreement with this point.  Take a look at the posts in this blog for May 9, 10, and 12, 2022 for my thoughts and proposed actions on this.  Prof. Ghent’s point is well taken, I too think it keeps commissioners from spending more time on what they’re real job is, which is making recommendations on planning policy for the community.  I won’t take the time to rehash all I’ve said on this before, you can see that by going back to those blog posts.  The solution is to either move all those administrative actions to another body (or person!), or to create a different type of hearing, one I’ve seen called an administrative hearing, in which the rules are different from the typical public hearing on policy matters.

The second issue in Prof. Ghent’s letter is this:

 I’m disappointed at the lack of knowledge of urban economics and/or real estate among some of my fellow commissioners. In addition to wasting meeting time explaining basic concepts, the lack of expertise frequently leads to poor decisions. Were it a lack of suitable candidates, I would understand appointing unqualified commissioners.

As noted earlier, I disagree on this point.  For a number of years now, I have had occasion to give presentations to planning commissions, councils, and at conferences titled Group Decisions: The Good, the Bad, and the Ugly.  It is based on research on the dynamics of how groups make decisions, and the principles for groups to make the best possible decisions.  I used a variety of sources on these processes and principles, and came up with some pretty good stuff.  The first principle that is substantiated in a lot of the research is that diverse groups make better decisions than uniform ones.  The more diverse, the better.  This kind of goes against what might be thought of as common sense, but there’s plenty of evidence in the source materials to back up this claim.  A correlating principle that came out in some of the studies was that groups made up entirely of “experts” were no better in the decisions they reached than other groups, overall.

While there were a number of different and varied studies, the general conclusion I drew was this:  a group made up entirely of “nonexperts” did okay in decision-making – not great, but not too bad either, as long as the backgrounds of the participants were varied.  Groups that were made up entirely of experts in the given area did not do much better that the nonexpert groups.  This is often attributed to the fact that many experts share common thinking and therefore can miss or ignore factors outside their experience or background.  The groups that did the best were those comprised of a few “experts” along with others of varied “nonexpert” backgrounds.  The idea here is that such a diversity of backgrounds and thinking allows for different ways of approaching problems, often in new and diverse ways that may actually be better.

Here’s the main sources of the research I drew from for this presentation:

The Wisdom of Crowds: Why the Many Are Smarter Than the Few and How Collective Wisdom Shapes Business, Economies, Societies and Nations, by James Surowiecki

The Perfect Swarm: The Science of Complexity in Everyday Life, by Dr. Len Fisher

Why Societies Need Dissent, by Cass R. Sunstein

There’s another reason I have found throughout my career in the public realm for having planning commissions made up of regular citizens from the community – their decisions and recommendations are more often accepted by the citizen elected officials, and by the community as a whole, if they feel like these are people like them, and do not have a personal vested interest in the outcome (whether they do or not – it’s all about the perception).  To that end, when I get asked by local officials if they should just be looking for planners or land use attorneys or developers or real estate professionals to serve as their planning commissioners, I always refer them to the source materials cited above, and say that it’s good to have a couple of people like that, but by and large it should be citizens of varied backgrounds.

And by the way, if you’re interested in my Group Decisions presentation, let me know and I’ll email you a copy.  I’m also happy to come present it as well – just did so again a few weeks ago for Pleasant View City’s Planning Commission.

NEED SOME CHANGES TO ZONING?  LET’S MAKE A DEAL

December 2, 2023

Over the last couple of weeks, the regulation of land use by development agreement has reared its head several times, enough so that I feel like I need to clear my soul about some of this.  Specifically, the recent approval of the land use provisions by Wasatch County for the proposed LDS Temple in Heber City; and a friend and council member of a community nearby who called me with questions she had about a proposed development agreement for a project that would allow variations from what the underlying zoning code required, and some rezones I’ve seen recently where uses were restricted.

In all these cases, the development agreements would allow for provisions that were not what was normally allowed by the underlying land use regulations.  In some cases, the community would gain direct benefits (such as affordable residential units), but in other cases, there were no clearly specified community benefits – it was primarily a way to allow the development to proceed with something that the zoning normally would not have allowed (like yard setbacks, building heights, private streets, etc.).  In essence, the agreements were providing a level of flexibility that standard regulations did not.  This is not necessarily a bad thing – I’ve long said we just can’t foresee all the things that may need to be addressed in our land use codes, nor the variation that may be needed to allow for independent design and aesthetics.  But if that’s what is needed, then what is the purpose of standard zoning regulations?  Why do we even have them?  Would we be better off just negotiating every development proposal, and then writing up a development agreement to embody what was agreed upon?

I wrote about the basic mechanics of how we must legally deal with such development agreements over three years ago, and what is clear from those court decisions (and now language in the LUDMA – see (2)(a)(iii)) is that we must follow the same process for these agreements that we must for rezones or code amendments.  So these development agreements become, in essence, rezonings of property to allow for a different set of standards and requirements (not all development agreements do this, and thus are considered administrative and need not follow the legislative process – this distinction confuses citizens, and even PC and Council members).  So what’s the problem?

Well, I sometimes wonder then why we use zoning at all.  We could just adopt a community general plan that calls for the kinds of development that should be located in certain areas of the community, and then wait for development proposals to show up, at which point the community would negotiate with the developer the details, then embody all that in a development agreement that is run through the legislative land use process.

The problem with such an approach, however, is that citizens rely on zoning to have a level of predictability about what can and can’t happen with new development in their neighborhood.  It would also be impractical to have to negotiate with every applicant for a building permit what the yard requirements and building heights and parking requirements would be, then draw up an agreement and run it through the legislative process.  So there does seem to be some value in having a set of standing, underlying land use regulations that apply to property that any owner could rely on to get a permit to build without having to go through negotiations and process (which would add to the time required to get a permit, a key issue in housing affordability!).

Maybe I’m just too worried about what I learned as a planning student and early in my career about zoning and how it should work.  Land use regulation by development agreement seems to be an awful lot like “contract zoning,” which, when I was in planning school a million years ago, we were taught was antithetical to democratic land use processes and even illegal.

I have since read a treatise given at the Rocky Mountain Land Use Institute in 2011 by Orlando Delogu, emeritus professor of law at the University of Maine, that changed my understanding, and seems to be more in line with how things are viewed today.  He calls it contract zoning, but it is essentially the process of crafting a development agreement – a legislative development agreement, as it was called by Wasatch County.  Delogu says this:

The concept of contract zoning pits some very traditional points of view in the law against one another.  On one hand there is the desire for certainty, predictability in the law—a rule of law, not of men, where standards, criteria, the so-called rules of the game are largely spelled out in advance (e.g., zoning (my note, not Delogu’s)).  On the other hand there is a desire and need for flexibility – the prudent use of discretion to fine-tune, to adjust to the dynamics of the marketplace, changed conditions, to balance reasonable public and private interests (e.g., development agreements (me again)).

It’s a close call, and individual feelings on the matter may reflect more one’s philosophical biases than anything…

Delogu does acknowledge what it would/should take to do land use by development agreement, much along the lines of what our courts have said:

…it should be recognized that contract zoning is actually the rezoning of a particular land are – a valid legislative undertaking (underline mine).  All law can, should be revisited from time to time – it should be open to improvement.  Contract rezoning is often the only legal and creative way to say YES to what may be a very desirable development opportunity that would otherwise by impermissible, and have to be turned down because it doesn’t fit into any of the presently permitted zoning categories that a community may have fashioned for itself at a given point in time.

Ultimately I guess I’d say that I agree with Prof. Delogu’s assessment that we need some of both – zoning and agreements, applied appropriately.

It is never a question of having one or the other, certainty or flexibility; we always need to have some of both.  It is a question of degree.  Contract zoning (e.g., development agreements (me once more)) is a tool that leans in the direction of flexibility and discretion.

Delogu then goes on to outline the potential pitfalls:

In the minds/hands of some, it affords too much of these characteristics.  Others use the tool prudently; they see it as an essential part of the mix of land use control mechanisms.

Contract zoning, like other land use controls, may not be needed or appropriate in many municipalities – fine, don’t use it.  However, in those communities where the pace of change is rapid, where development pressures are acute and increasing, where there is an inherent complexity that almost defies conventional planning strategies and techniques, contract zoning … can be very beneficial to all concerned.

So – land use regulation through zoning?  Or by development agreement?  Seems a mix of the two might work best.  The trick is achieving the appropriate balance.  Part of that balance in the state of Utah is that such agreements must be run through the legislative adoption process.  That, of course, can open up the political pandora’s box of referendum, but then, so can a standard rezone or zoning text amendment.  Helping commissioners, councilmembers and the public understand this, however, is a challenge!  And another problem is see as the use of “legislative” development agreements gains sway – keeping track of all those specific provisions.  There will need to be a good filing system to keep those agreements easily findable, and a tag on properties so those looking can easily be made aware that there may be provisions that apply to some properties that are different from the underlying zoning.  Good luck with that!

Added Dec. 4:  A great comment from John Janson, former West Valley City Planning Director and Davis County chum (John was a starting planner there when I was an intern!), now a planning consultant.

John M. Janson AICP
Planning Solutions
801-232-3778

IT’S GOING TO BE A BUSY SESSION

November 15, 2023

As noted in yesterday’s post, the Legislative Audit Subcommittee released its report on Utah housing policy yesterday.  The overall message that I got out of the report was, “there’s more that can be done, get going!”  This reflects the attitude of Gov. Spencer Cox, as noted in previous posts, and that of legislative leadership.

I was all prepared to write a detailed description of what the report says, and what comments were made during the subcommittee meeting yesterday, but Katie McKellar at the Deseret News beat me to it (it is her job, after all!) and wrote a comprehensive story that is in this morning’s DesNews, so I’ll just put up some highlights here, and encourage you to read her story.  The story apparently was written before the subcommittee meeting, so I’ll chip in a few comments about what was said there.

Here’s a link to McKellar’s story:  Utah audit: A future of only single-family homes ‘recipe for trouble’

Let me start by saying that the report acknowledges what has been done to address housing affordability in recent years by both cities and counties, and by the state legislature.  But the overall message is, “there’s still a problem and more needs to be done.”

Legislative auditors concluded Utah needs to build almost 28,000 units of housing a year to keep up with the state’s forecasted growth while signaling a continued prevalence on single-family homes rather than higher density housing would be a “recipe for trouble as Utah continues to grow.”

Auditors also concluded Utah lawmakers should consider ways to “increase zoning density on a wide scale” and implement more “incentives and penalties for noncompliance” with the state’s housing goals to “ensure local government compliance.”

The Utah League of Cities and Towns has been touting the fact that over the last couple of years, cities have issued a record number of building permits for new housing, but the report notes:

Even though Utah cities issued a record number of building permits from 2020 to 2022,  “cities that prefer single-family homes or low-density zoning can use their authority to stifle multifamily or high-density residential projects,” auditors wrote in the report.

The report did not emphasize the fact that in the last few years, the majority of permits have been for apartments and multi-family housing, though it is there in the data.

The report notes that land is scarce along the Wasatch Front, and that in order to meet expected future demand, densities would likely need to increase.  The report implicitly criticizes cities and counties for keeping densities low, but it does recognize what has been done, and that part of the problem appears to be NIMBYs who come to local meetings.

“Pressure from citizens, along with other factors, has led local legislative bodies to favor single-family homes on relatively large lots,” they wrote. “Most of the land in Utah’s largest cities is currently designated for single-family detached homes, which means certain areas could begin to run out of space for housing before 2050.”

While the report generally was okay with what local governments have been doing on this issue, it did note some issues:

In response to some concern about whether cities are complying with state regulations thus far, auditors wrote those concerns are “largely unfounded,” but added questions about whether certain cities have imposed “unreasonable development standards” or have reviewed building permits in a timely manner “warrant examination.”

“Although we were unable to substantiate accusations that cities had placed unfair roadblocks in the path of development, this finding does not necessarily mean that all cities are acting appropriately in terms of requirements and timeliness,” auditors wrote. “Some cities may use some of these tactics to slow down development; however, after reviewing all complaints that were specific enough to allow follow-up, we were unable to find evidence of cities acting in bad faith regarding requirements and timeliness.”

… auditors did conclude that cities differ in their attitudes and approaches when it comes to housing, and “some cities have used their broad land use authority to circumvent new laws.”

Auditors cited a couple of specific examples of where they believe legislative requirements were circumvented: in Springville on residential design standards, and in Lehi on accessory dwelling units.

In an effort to show that some communities are doing more than others, the report includes tables that show those local jurisdictions that have issued the most building permits over a given recent time period, and those that issued the fewest.  Included in the list of the fewest are some counties, such as Davis County.  This, however, should be considered against other important policies.  Davis County, and some other counties, have deliberately zoned property for very little new development with the intent of directing such new growth to existing cities, which are better situated to provide the urban services intense urban development needs.

There’s lots more to the report, but just go read the DesNews story to get a good overall view.

The report makes several specific recommendations about what should be done going forward.  They are:

Recommendation 1.1 We recommend that the Legislature consider requiring the creation of a state-level strategic plan for housing in Utah. This plan should define success and include goals that specifically address the current housing shortage and forecasted population growth.

Recommendation 1.2 We recommend that the Legislature consider amending the land use, development, and management acts at both the county and city level to clearly emphasize housing production and affordability as primary goals of land use regulations.

Recommendation 1.3 We recommend that with information gathered from strategic planning, the Legislature consider the range of state-level policy options presented in this chapter to create a program to set and manage state-level housing production targets.

Recommendation 2.1 We recommend that the Legislature consider whether to expand the moderate-income housing plan requirements to include forecasting benchmarks for household growth.

Recommendation 2.2 We recommend that the Legislature consider options to increase zoning density on a wide scale within the state.

Recommendation 2.3 We recommend that the Legislature consider policy options to craft additional penalties and incentives associated with housing planning and targets to better ensure local government compliance.

Recommendation 3.1 We recommend that as part of any statewide housing strategic planning, the Legislature consider metrics to better track both actual and potential housing production.

You can read the full report itself here:  A Performance Audit of Utah Housing Policy

The Utah League wrote an excellent response to the audit, and Executive Director Cameron Diehl reiterated much of that during his comments at the subcommittee meeting.  In particular, Cam noted that many of the actions taken recently by the legislature have not had time yet to see whether they are effective.  We need to give things some time to see if they will produce results.  And how do we measure when things are “successful?”  The actual number of new homes built depends on a lot of other factors beside those that we’re talking about here.

… the league also cautioned that any “targets” included in the strategic plan should “recognize what government controls and what government does not control. Cities plan for housing, but the private sector builds housing.” It noted one of the largest impediments” of housing are infrastructure, including water, sewer and roads, calling for state investment in those areas.

The League also expressed hesitancy about the recommendation to expand moderate-income housing plan requirements to include household growth forecasts, noting “other states that have set benchmarks do not yet have results of whether those policies have improved housing affordability.”

It also worried about benchmarks that are “outside of government control,” noting that some cities have zoned for unlimited density near transit areas but the market has only produced wood-framed, podium-style apartment buildings due to cost, and those styles are more profitable and easier to finance than building larger steel-framed buildings. It also noted some cities have zoned for increased density, but homebuilders only built to a fraction of the entitled density.

The overall tone in the meeting seemed to me to be one of, “there’s a problem, and we all need to work together to address it.”  That is encouraging to me, as the top-down approach that has been pursued in some other states seems to engender reluctance, foot-dragging, and even downright opposition from local governments (I’ve harped on this theme in several previous blog posts).

The audit subcommittee voted to refer the report to a couple of legislative standing committees for their consideration for legislative actions in the upcoming session.  My hope is that the move to create a state strategic plan will be a collaborative effort with state and local officials.

No doubt, lots more to come.  This report, along with the previously actions of the UEOC and the LUTF, indicates that housing and local land use planning and regulation will be a big topic on Capitol Hill early next year.

DON’T TOUCH THAT DIAL!

November 14, 2023

Today could prove to be most interesting in the arc of actions on housing affordability (and zoning reform? – using that term broadly) that get teed up for next year’s legislative session.  That’s for two reasons.

First, at yesterday’s League Legislative Policy Committee meeting, League Executive Director Cam Diehl told about how he and a few others were invited to meet with Governor Cox last Friday to discuss housing affordability – more specifically, starter homes.

You may recall recent statements by Gov. Cox in which he called out local governments on the issue of housing affordability, and said that this was going to be his top issue for the next year (see the Oct. 18 and Oct. 20 blog posts).  Friday’s meeting was apparently the Governor’s move to start making it so.

Cam Diehl explained that the Governor said he’s focusing on how to increase the availability of “starter homes”(not defined!),  that his goal to achieve this would be akin to a “moonshot,” alluding to the all-out effort in the 1960’s to land a manned mission on the moon.  To that end, he said that:

• Cities must plan for them
• Developers must build them
• The State must provide strategic goals and fund needed infrastructure

He emphasized that “everyone will have to stretch” to make this happen.

Second, today at 3:30 pm, the Legislative Audit Subcommittee will release a report titled:

               A Performance Audit of Utah Housing Policy: A Case for Statewide Strategic Planning and Accountability

Those who have seen the report, while sworn to secrecy until it is released today at 3:30, indicate that it will likely change the entire approach to addressing housing affordability at both the state and local government levels.  This is just me, but I’m surmising that it may mean a much more top-down approach, rather than the generally collaborative way that state and local officials have been pursuing this over the last couple of years.

We’ll know better by tonight.  Watch this space for updates.

WILL PARKING BE THE NEXT “LOW-HANGING FRUIT” ISSUE?

November 9, 2023

One of the items on the CHA/UEOC list of housing affordability policy issues that had NOT gotten consensus agreement was “prohibiting parking minimums” (see October 16 post).  Let me just say right up front that I generally agree with such a move, but I also recognize that this will likely be a tough one to make happen.

The problem with mandatory parking minimums, which can be found in most zoning codes, is that they are pretty arbitrary (not a lot of empirical evidence went into their being established), and that they create a host of problems.  This is well described in a piece in Slate magazine from a couple of years ago that said:

Such requirements effectively block most small-scale, affordable, and infill housing; they distort the size and shape of commercial architecture; they render thousands of older buildings functionally obsolete (no parking lot, no adaptive reuse);they subsidize driving and make it difficult to build walkable places.

Probably the seminal work on this issue came several years back, with the publication of the book The High Cost of Free Parking.  We had the author, UCLA Prof. Donald Shupe, here in Utah for a Regional Solutions Event when I was working at Salt Lake County, and he made a very strong case for the reduction, or even the elimination, of parking regulations.

Since that time, a wave has been sweeping the country wherein that very thing has been happening.  A story by the Congress for New Urbanism from March of this year indicates the growing number of state and local laws and ordinances that have been modified or eliminated on parking minimums.

Elimination of off-street parking mandates began in downtown areas, where historic buildings don’t meet modern zoning regulations, according to Gould. “That’s where it started, but it’s not where we are headed. … We are seeing a rapid rise in the number of cities eliminating all parking mandates, citywide.”

According to the story, more than 40 cities and states had enacted elimination or modification of parking requirements.  The list is long, and as befits local circumstances, the approaches to parking reform are varied.  Here’s just a sampling:

Richmond, Virginia

Austin, Texas

Bend, Oregon – this one is interesting because the action was based on a mandate passed by the Oregon state legislature for larger cities to reform parking rules.  The Bend city council voted 4-2 to enact the changes.  The discontent and subsequent foot-dragging from local governments is, I think, an example of how top-down mandates run into problems when the “underlings” are expected to quickly implement them.

Several other Oregon cities filed suit to block the elimination of parking minimums. The state Court of appeals late last month denied a motion to stay the rules but agreed to hear the case this year on expedited rules, which took effect Dec. 31.

Better to work things out cooperatively between local and state officials first.

Tampa, Florida

Fairfax County, Virginia

Norman, Oklahoma

There are many others, which indicates that this is definitely a trend.  So the reason given for eliminating, or at least reducing, parking minimums is that it helps in making housing more affordable.  Does it?

Well, a study recently released by the Rutgers University Center for Real Estate looked at the effect on housing costs of reduced/eliminated parking minimums in New Jersey, and concluded that it does, significantly.

Residents of New Jersey would reduce their yearly rent by $1,056 on average if their leaders would simply relax outdated rules that require developers to build car storage that many residents aren’t even using.

In a new study from the Rutgers Center for Real Estate, researchers found that Garden State renters, on average, “own fewer cars per unit than developers are required to provide” — specifically, about one extra space for every two units — and that by simply aligning those requirements with the number of vehicles residents actually have, New Jersey could bring average rents down by about four percent, or $88 a month off a typical $2,200 unit built after 2010.

The study itself is pretty detailed and dense, but presents some pretty convincing conclusions about how parking spaces drive up the cost of housing.

Even our own Wasatch Front Regional Council did a report of parking strategies for communities, and while it looked at a number of strategies, elimination of parking minimum requirements was not explicitly recommended.  You can see the study here https://wfrc.org/Studies/UtahParkingModernizationPhase1Report_WithAppendices.pdf

Now, having said that, while the details and data speak volumes, getting local residents to accept reduction/elimination of parking minimums may be difficult to achieve.  Back to the Bend, Oregon experience:

During the public hearing, David Welton of Bend YIMBY (Yes In My Backyard) spoke in “favor of eliminating one-size-fits-all,” costly parking mandates, saying people – not cars and parking – should be cities’ first priority.

But a 22-year Bend resident called the move “a gift to the developers. This is going to be a calamity for Bend.” And another speaker called it “wishful thinking” that dropping the parking requirements will prompt developers to build more affordable housing.

And from the recent experience in Atlanta, where the council considered eliminating parking minimums near transit stations, but ultimately declined to do so:

Councilmember Antonio Lewis said communities near the Beltline have repeatedly oppose developments with reduced or no parking — and that he wants them to continue to have that power. He added: “I want to caution us as we look at the ‘no parking’ in the south and in Atlanta.”

My own experience tracks this narrative.  When changes were proposed to parking minimums for the Sugar House area in Salt Lake City to encourage redevelopment with more higher density housing, residents were pretty upset.  The council went ahead and made the changes, and the transformation of the Sugar House area has been remarkable.  And during my recent stint on my hometown planning commission, a recent consideration of a mixed use development, the reduction of parking requirements drew the most opposition from residents.  The council ultimately approved the project, but with more parking than recommended by the PC.

Given such general public opposition, its remarkable to me that so many communities have enacted parking regulation changes.  Here in our state, a few brave communities are venturing forward, most notably Salt Lake City.  But what will happen if this issue becomes one that is taken up at the state level?  How will collaboration with local officials go when many of their residents seem to be so implacably opposed?  Hmmmm.

MORE DEMSAS – SHE’LL BE HERE NEXT WEEK

October 31, 2023

Another most timely story by Jerusalem Demsas in The Atlantic last week, this one about how environmental laws are being used to stymie land uses needed for the green energy transition – from renewable sources (wind turbines, solar farms) to new transmission lines.  The irony is abundant, and shows that opposition to changes in land use is not limited by political persuasion.

Demsas notes,

In the typical cultural script, a polluting corporation tries to crush the little guy; a pipeline threatens a defenseless fox; a faceless bureaucrat charts the course of a highway through a thriving neighborhood. Accordingly, American environmentalists have developed tools to help citizens delay or block development. These tools are now being used against clean-energy projects, hampering a green transition. The legal tactics that allow someone to challenge a pipeline can also help them fight a solar farm; the political rhetoric deployed against the siting of toxic-waste dumps can be redeployed against transmission lines.

Demsas also concludes with a paean that seems applicable to many land use fights, not just those for green energy.  She writes,

There are good reasons to oppose a development, of course, even a renewable-energy one—if it blocks public access to a national park, for instance. But opposing a wind turbine because you think it might be ugly is not reasonable. Delaying a solar project because you have a vague notion that it might affect tourism is not reasonable. And the reality is that our legal and political systems are incapable of differentiating reasonable from unreasonable objections.

Worth the read, at https://www.theatlantic.com/ideas/archive/2023/10/wind-farms-community-opposition/675791/

And remember, Jerusalem Demsas will be here next week, speaking at Salt Lake County’s Regional Solutions event on November 7.  https://www.eventbrite.com/e/2023-regional-solutions-zoning-reform-for-housing-attainability-tickets-714916182547

TIME FOR A BREAK – JUST READ SOMETHING INTERESTING!

October 22, 2023

Okay, no big momentous proclamations or proposals or anything else like that in today’s posting.  That was all in the last couple of posts, and boy have I heard reactions to those.  Today I just want to make you all aware of a couple of interesting media items that put another viewpoint on some of these land use issues.

The first is a couple of stories in the Moab Times-Independent about housing in resort communities, but it actually gives another view of what has been happening legislatively on housing affordability.  The first story, published on September 26, is about Moab City’s attempts to encourage (require?) more workforce housing, which is a big issue in most resort communities.  The story, titled The Nexus of Housing, Local Policy and the State, deals with the city’s effort to essentially pass an inclusionary zoning ordinance at the same time the state legislature was working on passing a bill to prohibit, or at least severely restrict, such actions at the local level.  The story’s author, Moab Times-Independent staff writer Sophia Fisher, makes some pretty astute observations of what’s happening politically around this issue. Fisher writes:

…the developments of early 2022 signal what some local government officials and staff have called a disturbing, and worsening, trend of state officials intervening in local housing policy. The interventions sometimes peel back existing laws, sometimes preclude municipalities from pursuing new ones. Some are single paragraphs; others are buried in omnibus bills.

But together, some say they represent a Legislature increasingly willing to override municipalities, particularly around policy that aims to ameliorate the state’s intensifying housing challenges.

At the same time, the state’s involvement in local housing policy can carry its own bright spots: a push-and-pull that strengthens policies, hands-on negotiation that can lead to stronger laws.

Still, with such a power imbalance it can be hard for local governments to rest easy.

The story captures a specific situation for Moab, and the hard work that went into working with the development community and then the state legislature to craft an approach to their workforce housing problem, but it also reflects very well how the relationship between local governments and the state can play out:

“The closer to the people that live in the community [are the officials who] make those decisions and have to live with those decisions, obviously the better those decisions are,” he (Ross Ford of the Utah Homebuilders Association) said. “But sometimes a local community will make decisions that aren’t necessarily good for the state as a whole.”

That’s when the Legislature might need to step in, he said: if the policy starts creating bad outcomes in other communities.

It was that awareness of precedent that also stayed the city’s hand during the AEH (Active Employment Household ordinance) development, (Moab City Manager Carly) Castle said. Upon receiving those emails on March 31, Castle said she worried that plowing ahead could hurt not only Moab’s laws, but also pre-empt those in other Utah communities. It’s a trend she said she’s seen before.

“We didn’t want to get so greedy that we ruined it before it could be developed or vetted by other communities,” Castle said. “You don’t want to take such bold action that they [state legislators] overcorrect, and it’s not just tailored to what you did … So all the other cities are like, ‘Why did you anger the gods?’”

The second of what is billed to be a four-part series of stories, which was published on October 17, is titled ‘Being on the defensive’: Cities, counties see constraints on housing efforts.  In this story, Fisher characterizes the state-local approach to ideas of how to deal with the housing crisis in this way:

The city (Moab) had drafted the ordinance to combat the conversion of downtown housing into luxury condominium developments, one facet of a chronic housing crisis that has squeezed out local workers and families, threatening both the local economy and essential services.

Over the past few years, however, officials at both the City of Moab and Grand County have seen efforts to expand or safeguard its housing stock repealed, pre-empted or fettered by state bills.

That dynamic is at least partly the result of a historic tug-of-war between municipalities and the state that some experts say has long existed but recently magnified given Utah’s housing crisis and recently hot real estate market.

“It’s typically been a, ‘we’re going to beat each other up and the last bloody person standing is going to win,’” said former Rep. Steve Waldrip, now a partner at the Rocky Mountain Homes Fund.

But, fairly, Fisher indicates it’s not all one-sided:

Despite that contentious relationship, Waldrip and others pointed to other cases where collaboration between local governments and the state has resulted in real progress on one of Utah’s foremost challenges.

That’s perhaps the story of the city’s workforce housing ordinance, which underwent months of haggling between city officials and property rights advocates before its passage last August. It’s now being used in one forthcoming development.

“We gave a lot,” said Moab Mayor Joette Langianese. “And the power of negotiating and developing that relationship made it so that the state legislators were like, ‘Well, Moab’s at least trying to work with us.’”

Parts three and four of this series are slated to be printed in November and December.  They’re definitely worth a read to get a feel for the dynamics of the politics of the housing affordability issue.

Another media piece of interest is one I stumbled on accidentally, but found quite interesting (probably, at least in part, because it reflected positively on some of the work we were doing to revamp zoning and land use codes when I was at Salt Lake City some ten years ago).  It’s a podcast on Vox called Today, Explained.  The October 13 episode is titled What Salt Lake City gets right about downtown.  The podcast opens with this:

For the past three years, the University of Toronto has published a graphic that encapsulates the grim state of America’s downtowns in a post-pandemic world. Its Downtown Recovery project ranks 51 US cities based on the cellphone data in their downtowns, relative to the same period in 2019. Most cities’ stats are awful: New York City was at 67 percent of its pre-pandemic downtown activity in May 2023. Minneapolis was at just 40 percent.

But not every city is struggling. A few have actually exceeded pre-Covid activity downtown. The No. 1 spot? It’s consistently been held by … drumroll please …

Salt Lake City, Utah.

The podcasters then go on to explain what’s happening and why.  How’s this for an interesting nugget?

But the city has responded with a ton of new housing — especially downtown. Downtown Salt Lake has built more new apartments since 2020 than downtown Manhattan, according to data analyzed by Tracy Hadden Loh, a fellow at the Brookings Institution’s Brookings Metro program.

They don’t just focus on Salt Lake City for the entire podcast, however – they also talk about the surrounding metropolitan area and, most notably, what’s happening environmentally with the Great Salt Lake.  The overall tone is pretty positive, making me think, dang, sometimes planning actually does work!  Give it a listen, the guys are pretty fun to hear talk.

That’s it for today, we’ll probably get back to the nuts and bolts of Utah politics in the next post, likely around the issue of parking (which, by the way, is mentioned in the Vox podcast!)

IS THIS ALL HEADED FOR A GOOD PLACE?  OR SOMEWHERE ELSE?

October 20, 2023

To quote Senate President Stuart Adams from his statement in the October 16 posting, “Wow!”

I start off today’s posting with that quote because, in the entire life of this blog that I’ve been doing for nearly two years now, that October 16 posting has garnered the most reaction.  And it has mostly been negative about the statements quoted.

Those negative reactions have come almost entirely from local officials and staff, who by and large feel like the efforts to address the housing crisis they have been attempting to undertake are being ignored by state officials.  Here’s some samples (I am not including names as I haven’t asked specifically to use these quotes):

From a local elected official:  “Just read about the comments made at UEOC and now my blood is boiling.  What the heck? … it does get frustrating to know that there are thousands of entitled lots that could be built on that aren’t being built on.  Why don’t they work on trying to get property owners who have land that is entitled for homes to build on them instead of forcing cities to zone everything R-M?”

From a mayor (later that same evening): “At COG I asked each city to prepare a letter for their legislators and an invite to do a site tour – they need to see what we are doing.”

From an experienced planner: “It seems that the construction industry is stalling right now due to high material prices, scarcity of materials, scarcity of workers (and what is needed to pay them), what is being charged for homes, and interest rates!  It appears that the jury is still out on whether the build, build, build concept really gets us lower prices.  If supply increases but is still unaffordable, does that solve the problem?  The market is still setting those prices.  Are cities really just the scapegoats in this discussion?”

And then, at his monthly news conference at PBS Utah on Thursday morning, Gov. Cox doubled down.  Among the many issues he talked about, housing affordability was one, and Cox said:

“There are some cities out there that think, ‘Oh, yeah, everyone else, we’re unique. We’re different,’”… “No, you’re not. You’re not unique and you’re not different. You have to find more supply and you have to do it quicker.”

“Every day longer it takes adds to the expense of that house,” he said. “You have to look at the added expense, the requirements that you’re placing on that housing.”

To be fair, I must say that I am aware of some communities that are doing very little to diversify away from a heavy dominance of large-lot, single-family residential zoning.  Among all the negative comments I have received, I did get a few like this one from another experienced planner:  “Cities say they’re doing everything they can, but they’re not.  I see resistance everywhere I go.  It’s being hid in fees and slow process – less resistance in zoning than before, but a lot is still there.”

So the question really maybe should be, is it fair to call out all communities generally, as many are taking the comments of Gov. Cox to be doing? Or would it be better to keep encouraging those who are working on it, and just go after those few that are laggards?

Why are some, maybe many, communities slow to address this issue? The obvious answer is – politics.  Most elected officials respond to the messages they get from their constituents, and as most planners know from sad experience, new development of almost any kind usually draws opposition from a generally small but very vocal group.  For elected officials, this is hard to ignore.  It’s the wiggling laser pointer that’s right in front of them, and they pay attention to it.

When I raise this, I get a reaction from some of my planner colleagues that says, the community is really much larger than that small group, and they’re okay with it, or at the very least aren’t very concerned about it.  That’s who the electeds should be paying attention to.

Case in point, the recently released Utah Guiding our Growth Survey, conducted over the last year by the State Planning Coordinator’s Office and Envision Utah:

60% (of urban Utahns) choose the housing option that allows the most new housing: in centers and TODs, existing neighborhoods, and new greenfield development.

58–59% want to allow more small lots, townhomes, duplexes, and accessory dwelling units. ○ They also want to allow more strip malls, big box stores, and parking lots to be redeveloped into housing.

If that’s the case, then why don’t local elected officials pay attention to those numbers when they are asked to consider new, denser development?  From personal experience, and from the literature, I can say why:  those 60% don’t show up at the meetings when new developments are under consideration.  It’s that vocal, small group that does.  It’s the classic maxim of the squeaky wheel being the one that gets the grease.

Not only that, but those citizens who say they generally favor those other housing options, well, yes, they do, as long as it’s where it’s appropriate – not in their own neighborhood, you know, that’s already set, but elsewhere, that’s where it’s just fine.

I can say I’ve heard that argument numerous times over my career.  And guess what?  It’s just been ratified by a survey published just this September by Qualtrix and Redfin.  The byline under the title of the survey says:

Nearly 80% of respondents to a recent Redfin survey support policies that promote homebuilding. But just one-third of them would feel positive about a large new apartment complex built near their home.

Redfin Chief Economist Daryl Fairweather says:

“Personal preferences for things like a quiet neighborhood or old-fashioned charm are often at odds with building new housing. Even though so many Americans believe in building new dense housing in theory, that ideology isn’t strong enough to outweigh their own desires–especially when they don’t stand to directly benefit from the building. That’s why it’s so difficult to overcome community opposition to dense new housing, even during a time when so many Americans believe in the Yes In My Backyard (YIMBY) movement.”

So.  Who’s got the high ground here?  Gov. Cox?  Yes, to some degree.  Local elected officials?  Yes, they do too, in many (but not all) cases.

I get the Governor’s passion, and it often takes passion in the world of politics to accomplish something.  But sometimes that passion can alienate the very people whose help you need to accomplish what you’re trying to do.  And to those other people, see what’s really going on here and show some political courage and do what needs to be done.  Many of you are.  Keep it up.  This is a complex issue, and it needs careful scrutiny and strategy.

NICE CITY YOU HAVE THERE, WOULD BE A SHAME IF SOMETHING HAPPENED TO IT…

October 19, 2023

Yesterday’s UEOC meeting endorsed a number of other planning-related measures beyond those listed in the Oct. 16 blog post, which it would be good to be aware of.

First, there were a number of housing affordability funding measures that were recommended.  Rather than re-list them all here, you can see them in the slides that were presented during the meeting.  The housing funding proposals can be found on slides 19 and 20.  The policy recommendations are on slides 21-22.

There was another working group that addressed a number of growth-related issues – the Working Group on Growth & Transportation.  Slide 48 shows the emphasis this group placed on intermodal transportation.  This group also made some recommendations for coordination for infrastructure funding (mainly transportation) and local planning and land use – this is essentially what Smart Growth was all about in the 90’s, Utah has finally gotten there!  Interestingly enough, the link calls for more local emphasis to be placed on these housing goals, in order to qualify for enhanced transportation funding:

Owner-occupied; “Missing middle;” Affordable; Smaller lots (< 5000-7000 square feet) and/or townhome; Coordinated with transportation and other infrastructure

More “advanced” goals are outline on slide 50.  The commission also endorsed additional money to be allocated for the Guiding our Growth program, being led by Laura Hanson’s team, to publicize the results of the Guiding our Growth survey and explaining how the goals can be implemented (see slide 51).  Slides 52-54 show some other recommended measures.

Lastly, I guess I can drop another bit of a “bomb” to all this talk of how to manage our growth.  The reactions I’ve gotten from local officials and staff to the comments made by Gov. Cox and the Senators in the meeting, which I posted in the previous entry, have been rather, uh, exceptional.  Not real positive from local officials, who’s feelings generally seem to be, “we’re already trying to do a bunch of stuff, some of which the legislature is requiring of us, and some of which we’re doing on our own.  Really?  You don’t think we’re doing much?”  So, while presenting some of the growth-related transportation measures, Rep. Calvin Musselman said this:

“Yes, we agree on principle that we need to let the policies play out, that is a recommendation from us as well.  But, that being said, there can’t be circumstances where local land use authorities ignore the policies in place.  If that occurs, or continues to occur, either by completely ignoring it or trying to skirt around it, we can recommend not interfering all we want, but it won’t work.  There has to be application of what’s already in place and not kicking it down the road.”

A ”friendly” warning, perhaps?

There’s more to talk about legislatively, watch this space!

YOU HAVE BEEN WARNED!

October 18, 2023

“If you don’t want state government to make you do it, then figure out how to do it.”

That was Governor Spencer Cox, in his remarks at Wednesday’s Unified Economic Opportunity Commission meeting, referring to local governments around the state and how they should be taking the lead on addressing the housing affordability crisis.

The Wednesday UEOC meeting was the final one before the upcoming legislative session, and was intended to make recommendations to the legislature on a variety of issues for their consideration for action during the session.  One of the areas addressed by the UEOC was housing affordability.  In the post in this blog immediately preceding this one, I listed the recommendations that the Commission on Housing Affordability, a subcommittee of the UEOC, made for the UEOC’s consideration.  The UEOC heard from all their various subcommittees and by and large adopted all the recommendations made to them, including those from the CHA.

What was most notable to me about the meeting, however, were the statements made about the housing crisis by the governor, the Senate chair of the CHA, and the Senate President.  If there was any thought that perhaps state leaders would take a break from further actions on housing and related zoning reform, as the League of Cities and Towns has been advocating (saying, appropriately, that so many changes and programs have been adopted in the last couple of years, there should be a break to allow time to see if those other actions will bear fruit), that was all dashed by the comments of these state leaders.

These statements were so direct and impactful with regard to these leaders’ feelings about the role of local governments, that I have transcribed them and will just lay them out here.  If you have interest, you can listen to them on your own in the recording of the UEOC meeting, starting around minute 33:30.

Here’s the statements:

Governor Cox:

“If I could just underscore, I get asked often what the number one issue in Utah is, what’s my number one issue is.  I will tell you, this is it.  It’s number one, two, and three for me right now.  It’s not just an Utah issue, every state is facing this problem, but it is acute in the Mountain West.  Certainly Utah, Idaho, Colorado, Arizona, we’re seeing this maybe worse than other places in the country.  But this will impact our ability to be prosperous as a society, it will impact our most vulnerable, it will impact the ability of our kids and grandkids to live is this state and be raised near us.  Those of us from rural Utah have for generations understood the pain of having to export our children and grandchildren.  All of Utah is going to start learning what it means to export your children and grandchildren if we are not incredibly serious of increasing significantly the supply of homes.  I can’t underscore this enough.  Every mayor within the sound of my voice, every planning commission, every county commissioner, every city council, this should be your number one issue – what are you going to do, over the next year, to increase the supply of housing in your community, period.  I want to know that.  If you don’t want state government to make you do it, then figure out how to do it.  I know many of you are.  I know I’m going to get yelled at by Mayor Ramsey.  I just want to know.  I know many of you are, but many of you are not. A lot of you are not taking this seriously.  A lot of you think that this is somebody else’s job to do that, that our community is different, our city is unique, our city doesn’t have to act.  Somebody else will do that.  That’s for Vineyard, right? No – no, no, no, no, no.  If you care about your citizens, if you care about this state, if you care about your kids and grandkids, figure out a way to build housing quicker, figure out a way to build housing more cheaply, figure out a way to make decisions faster, figure out a way to streamline everything you want to do.  You can do all of it.  You can do all of it.  You can do it the right way.  You can still do it the right way.  But every day it takes you longer to make a decision, that’s less housing and more expensive housing.  On every added requirement you put on to housing in your community, that’s more expensive housing and less housing.  That’s how this works, all right?  I’m really passionate about this, and you’re not going to like me if we don’t do more of this, I assure you.  Probably not a great thing to say heading into an election year, but I feel very passionate about it.”

Senator Filmore:

“Cities have held local land use authority since time immemorial, but that authority is delegated from the state government, right.  The constitution vests all legislative power up here, and then the legislature wisely delegates that authority to locals, where most decisions ought to be made.  But to the degree that local governments do not address this top statewide issue, they ought to expect that the state government will change the delegated authority that is devolved to local governments.  We need to make sure that local governments are using the authority that they’ve been granted to address this top tier issue.”

Senator Adams:

“Wow, governor, ditto, that’s all I can say.  I appreciate the passion, but I also appreciate the committee for the great work that you’ve done, Senator Filmore and the great, great work.  We’ve got more work to do, but you’re spot on, we believe in local control.  We want the cities to manage their affairs well, but we see this as a partnership, and we see that we can work together, and we see that this is an issue that we have to solve.  Don’t forget the firsttime homebuyer.  We’re losing, in my opinion, the middle class because we don’t have the financial equity or the quality of life.  We need everything from multi-family, first homebuyers, to retirement community homes, to all types of products, so hopefully you’ll take that responsibility in all your communities and try to give that blend of opportunity, to the citizens of the state of Utah.  And do it fast!”

All this indicates that we will certainly see more legislative action on land use, planning and housing in this upcoming session.

In addition to those issues recommended by the UEOC, there are several others that are in play as well, including some from the Land Use Task Force, a recodification of the annexation code, a proposal to require local general plans to include an element on riparian areas, and changes to the recently passed changes to noticing for public meetings and hearings.  More about those in a future posting.

THINGS ARE GETTING SERIOUS!

October 16, 2023

Things are beginning to come together for what the 2024 Utah legislative session may bring on housing, planning and zoning reform.  There’s been a lot of talking going on over the interim since the 2023 legislative session by a variety of groups, most notably the Land Use Task Force (LUTF), the Commission on Housing Affordability (CHA – now a subcommittee of the UEOC), and the Unified Economic Opportunity Commission (UEOC).

On Friday (the 13^th!) last week, the CHA met to finalize their recommendations to the UEOC as to what topics to pursue for the coming legislative session.  There were a couple of different lists sent to the CHA by their own working group and the LUTF.  The first list is those items there was general consensus about.  That list includes:

• Adopt a statewide building code for modular housing to streamline regulations and inspections
• Adopt state infrastructure funding to facilitate housing production
• RDA/CRA flexibility to share resources between cities, invest in homeownership (up to 100% AMI), and housing set-aside expenditure timing
• State funds alignment with good local planning that facilitates a variety of housing types. State funds act as incentives (this is like the Smart Growth measures from the 1990s – Utah is finally getting there!)
• Align state economic development incentives with the production of workforce housing
• “Missing Middle Housing” toolkit to provide technical assistance to local governments and home builders to improve planning for affordable housing
• Improve land use outcomes in the courts (maybe establish specialized land use judges/courts)
• Address how garages count toward parking minimums in residential areas.

None of these proposals have specific legislative language yet, that will come, depending on which of these items the UEOC chooses to endorse in their meeting coming up this Wednesday.

There was also a list of policy issues on which agreement had not been reached.  The list was presented to the CHA, with the question of what they would like to see happen with that list.  After some rounds of discussion, it was decided that the CHA would pass the list on up to the UEOC with the recommendation that discussion on these issues continue, with the hope that some kind of agreement could be reached.  Here’s that non-agreement list:

• Prohibiting parking minimum requirements
• Prohibiting or limiting residential structure setback requirements
• Making general plans “binding” – that is, requiring mandatory consistency of land use regulations with general plans
• Establishing minimum base densities for communities
• Allowing local governments to be liable for damages/financial penalties for non-compliance with adopted land use regulations
• Establishing a land use appeal authority at the regional or state level

The Land Use Task Force has also gelled around some legislative proposals for the upcoming session, which are more in the realm of what the LUTF normally does and moves forward in the legislative arena.  These issues include modification of the subdivision process bill adopted in the last session; timing of sidewalk replacements and bonding in developments; processing times for land use applications and building permit applications; annexation code recodification; timing of inspections; development agreement language; and a few others.  More on these to come.

I will flesh out some of these proposals more in future postings, as discussions continue.

There are a couple of nagging concerns on my part about all of this.  The biggest is that we do not have specific language for any of these proposals yet (with a couple of exceptions in the LUTF).  Last year, because of legislative staff workload and relative inexperience with land use codes, the bills did not come out until quite late in the session, and often had problems in how they were written.  I’m hoping the legislative staff will work more closely this time around with some of the more experienced LUTF members.

Another concern is that we often still get land use bills that a lone legislator will introduce in response to a constituent or party of interest issue.  These happen outside the process of the LUTF and, now, the CHA and UEOC.  Everyone has to scramble during the session to deal with these, and they can take up valuable time and energy.  Not really sure what can be done about these, it may just be life in the legislative arena.

Anyway, watch this space, there’s lots more to be said about all this.

By the way, if you find all this interesting, be sure to attend the upcoming Regional Solutions Event being put on by Salt Lake County, Zoning Reform for Housing Attainability on Nov. 9.  The keynote speaker will be Jerusalem Demsas, a writer at The Atlantic who has produced some great stuff on housing affordability and land use.  Here’s the link to register.  https://www.eventbrite.com/e/2023-regional-solutions-zoning-reform-for-housing-attainability-tickets-714916182547?aff=oddtdtcreator

Also, don’t miss the upcoming Utah Land Use Conference on Oct. 24-25 in Sandy, which will have some great discussions on many of these topics as well.  Just click on Conferences in the bar at the top of this page.

CALIFORNIA DREAMIN’

September 28, 2023

Since the announcement that my favorite new writer on land use, Atlantic staff writer Jerusalem Demsas, is coming to Utah in November to speak at Salt Lake County’s Regional Solutions Event, I thought I’d let you all know about her latest story, Why Don’t We Just Build New Cities?  It’s about the effort by a number of Silicon Valley entrepreneurs to buy up land and plan to build a new city from scratch in Solano County, California.

A number of columnists have opined on this and raised a number of issues related to it, from whether this would be an exclusive non-diverse enclave to whether it is just another manifestation of suburban sprawl, to whether interesting urban places can just be manufactured out of whole cloth.  These are interesting reads.  Molly Turner, NY Times; The Guardian; Marc Joffe, Cato; Josh Stevens, California Planning & Development Report

Demsas chimes in with points about all these issues, but for me, it’s the politics of it all that sparks my interest, and she hits on this better than most.  Most insightfully, I think, is her closing statement to the story, which really could and should have been the lead:

What America needs isn’t proof that it can build new cities, but that it can fix its existing ones.

Demsas notes that some of what may be driving efforts to look at building new communities from scratch is this:

The process of building a city, difficult as it is, seems remotely rational only because trying to build within cities drives people mad.

And this is where even this effort will likely run smack head-on into the politics of land use:

Either way, new city or new sprawl, this project is going to run headfirst into the politics of development. Right now, the land is zoned largely for agricultural use. The county holds that changing the current designation to accommodate high-density urban infrastructure will require a ballot measure.

There’s lots of interest here, and I’m really looking forward to hearing from Demsas on November 9 in West Jordan.  And maybe there are some lessons in all this for our big new communities, Utah Cityhttps://www.heraldextra.com/news/local/2023/aug/29/vineyards-new-650-acre-development-to-be-called-utah-city/  and The Point https://www.utahbusiness.com/the-point-draper-utah-sustainable-community-prison-site/

REALLY, IT AIN’T OVER YET

September 8, 2023

At the upcoming APA Utah Fall Conference in Ogden Sept. 28-29, on Friday afternoon, I’ll be moderating a panel discussion in a session about what we might expect from upcoming legislative sessions in Utah and Idaho on land use planning and regulation.  Many of the things that are being discussed fall into the characterization of zoning reform, such as it is, that has been happening the last few years all around the country, and even internationally.  And it seems that this “movement” is just gaining steam.

To prove the point, in addition to some of the things I’ve highlighted already in past blog entries, here are a couple more things that bear out that this effort at “reforming” land use regulation to enhance housing affordability is not anywhere near done yet.

First of course, is the blog entry posted just prior to this one, about the discussion of potentially making Utah a mandatory general plan consistency state.  See that post for the implications of that.

Next, I was just recently been made aware that Salt Lake County is going to resume their Regional Solutions Event this November.  These were started when I was with SL County, to help bring local officials and staffs together to learn about and share viewpoints on hot land use topics of the day.  Past topics have been on Parking (UCLA’s Donald Shoup was the keynote) and Missing Middle Housing (Dan Parolek was the keynoter), so they’ve been very good, very high level events.

Dina Blaes, SL County’s Director of the Office of Regional Development, just sent me the info about this year’s event, which will be Zoning Reform for Housing Attainability.  The main speakers will be Dr. Arnab Chakraborty, newly appointed Dean of the College of Architecture + Planning at the University of Utah; Dr. Chris Nelson, former Ute and now at the University of Arizona, whom we all know and respect; and Jerusalem Demsas, staff writer at The Atlantic,  who I have said has become one of my favorite writers on the topic of zoning and land use reform (see several of the past blog posts).  This promises to be a great and timely event.

Finally, there is more and more being written about zoning reform in more mainstream publications, not just those specialized for land use practitioners.  To wit, a couple of weeks ago Forbes ago carried this: New Studies Provide Further Evidence That Zoning Reforms Work.  And just today I saw in the international section of The Economist  this story: The New Zing in Zoning: The Growing Global Movement to Restrain House Prices.  The story is paywalled, so let me pull out some of the more interesting observations made about zoning reform from it.

In stating the problem, the story says:

In recent decades house prices have outstripped income growth across the developed world. The reasons for this are numerous. Interest rates affect how much buyers can afford, as does income growth. Population changes, culture and demography all have an impact on demand, as do bank regulation, lending practices and the like. But underlying it all is basic economic logic: where demand outpaces the supply of new homes, prices tend to rise.
Zoning and planning laws … are so strict that building new housing is in many places completely illegal, and in almost all it is slow, difficult and expensive.

California has tried to control development since at least the 1970s. Scott Wiener, a state senator who represents San Francisco, says that with housing in the state “the rules get made up as you go along”. The process “takes years and years and is so chaotic it ultimately mutilates or kills the project entirely”. Mr Wiener was among the first yimby politicians and crafted a new state law, sb35, which passed not long after he took office in 2017.  sb35 encourages more development by forcing reluctant city governments to comply with state-led targets … in order to facilitate new housing.

As this story is in the international section of the magazine, this observation bears that out:

In New York this year Kathy Hochul, the state governor, (unsuccessfully) proposed a radical “upzoning”, approving a greater density of housing in a particular area. She argued that it would allow the construction of 800,000 more homes over a decade, primarily by letting more apartments be built around railway stations in New York City’s suburbs. In Canada Pierre Poilievre, who leads the opposition Conservative Party, wants the federal government to be able to force municipalities to allow more housing construction. Both major political parties in Britain say they want more houses built, no doubt mindful of an election expected next year.
Yet constructing housing remains extremely tricky. The problem, says Brian Hanlon, a co-founder of California yimby, a pro-housing pressure group, is that “we are all inheritors of this English town-planning system, which is disastrous”. In Britain the first extensive regulation of landowners’ rights to build on their property was introduced with the Town Planning Act in 1909 and then expanded dramatically in 1947 with the Town and Country Planning Act. In America “zoning” laws were passed in most urban areas in the 1920s and 1930s.

The crux of the problem?

In San Francisco construction cost on average around $440 per square foot last summer (a figure far higher than elsewhere in America). But homes sold for roughly twice that. In southern England an acre of agricultural land might cost as much as £15,000 ($19,000). An acre with planning permission is worth at least 60 times that. What this means is that giving permission to developers to build creates vast amounts of value by the stroke of a pen. And yet it doesn’t happen, largely because, through the planning system, local residents and political groups are generally able to block any development. Rules intended to regulate development, such as environmental reviews, design consultations, parking requirements and so on, in fact serve the purpose of stopping it.

Can zoning reform make a difference?

Housing construction has risen in California in recent years: more homes were built in the state last year than in any since 2008. Some of this is thanks to modest yimby reforms. In the Los Angeles area, there has been a boom in the construction of accessory dwelling units. Typically, these are built in the garden of an existing house. Statewide, around 60,000 have been permitted since 2017 and in 2022 they made up one in seven of all homes constructed; most of them have been put up in the Los Angeles area.  Overall construction is still far too low to make California truly affordable again, however. The big question is whether recent reforms can induce more.

Activists point to one place where it has already had a measurable and large effect. In 2016 New Zealand’s parliament passed a sweeping upzoning of the city of Auckland. The result, says Ryan Greenaway-McGrevy, an economist at the University of Auckland who has analysed the data, was a big increase in building. The number of new homes that got permission to be built went up from 2,500 to 15,000 between 2010 and 2021.

The story is worth the read, there’s lots more about YIMBYism and land use reform efforts.

What all this indicates to me is, as we originally titled the APA Utah conference session, it ain’t over yet!  We’re going to see more proposals to “reform” land use processes and policies in our state legislatures.  We just need to make sure we’re part of that conversation.

OH WOW, MANDATORY PLANS MAY BE COMING!

September 6, 2023

Wow.  After listening to yesterday’s Commission on Housing Affordability (CHA) meeting (which is now actually a subcommittee of the Unified Economic Opportunity Commission), that’s the main thing I have to say – Wow!

The CHA meeting yesterday was to be devoted to getting recommendations for possible state and legislative actions from it’s three working groups.  All of the CHA’s work, as the name implies, is related to making housing more affordable throughout our great state.  Two of the working groups – Funding and Data, gave reports and made recommendations, which were then discussed, somewhat modified, and endorsed by the CHA.

The Policy Working Group, however, chaired by Chris Gamvroulas (President of Ivory Development, the land development arm of Ivory Homes), presented only one issue – changing Utah state code to make Utah a mandatory comprehensive plan state.  That’s what caused me to say Wow!, because such a change would be a major alteration in the way land use planning and regulation is done in the state of Utah.

I’m going to write more about this in future blog posts, so I won’t spend a lot of time on the particulars of what it means to be a mandatory comprehensive plan state, but to my thinking, it will change the way general plans are done because of what they will mean for future land use regulation (zoning in particular), the way we look at future community growth, and how this all plays out in the land use arena.

An excellent paper in the Oklahoma Law Review in 2007 by Nathan Blackburn (an OU Law School student at the time), Planning Ahead: Consistency with a Comprehensive Land Use, describes the many considerations and nuances of being a mandatory plan state.  Just a few excerpts from this article:

The limitations placed on municipal land use regulation by state enabling statutes affects how the state courts review challenges to such regulations brought by landowners. In particular, the role that a state assigns a municipality’s comprehensive land use plan is decisive in establishing the level of discretion the municipality has in drafting zoning ordinances. States fall into one of two general categories with regard to the role assigned to a comprehensive plan: majority or minority.  Enabling statutes in majority states do not require mandatory consistency with a comprehensive plan, and therefore grant local legislators more discretion to make regulatory land use decisions that fall outside the scope of their comprehensive land use plan, if a plan is even required. Minority states have enacted enabling legislation mandating that each zoning ordinance be strictly consistent with a comprehensive land use plan developed by the municipality. The minority position has the effect of limiting local legislator discretion to actions within the scope of an existing comprehensive land use plan. (pg. 86)

Each state must make a decision regarding the role that comprehensive land use plans will play in cities’ zoning schemes. The potential roles that cities’ comprehensive land use plans play fall along a spectrum. For states at the discretionary end of the spectrum, the plan serves as a mere guide for local zoning regulators, who maintain discretion to pass zoning ordinances of their choice without regard to a land use plan. For states at the mandatory end of the spectrum, a plan must be enacted and thereafter serves as binding law on local zoning regulators for every zoning ordinance passed in the future. In between these extremes, states use the existence of a plan as a presumption of validity for zoning ordinances that have been challenged as invalid, or the absence of a plan as a presumption of invalidity. (pg. 107)

As Blackburn notes, the mandatory plan scheme can fall along a spectrum of how strictly it will be required and enforced.  For example, can general plans remain relatively “general” in the future land uses they anticipate for areas of the community, and does it need to be specific as to property lines?  Or will it need to be much more specific, maybe even as a future zoning map, and all rezones of property are to be consistent with that plan?  This is but one example of the many vagaries of changing our approach to general plans and land use regulation that should be carefully considered and discussed before the trigger is pulled.  And my guess is, this will take a while, if we decide we should go this direction.

One of my concerns when I heard Chris talking about this in the meeting yesterday was that it had not been much discussed by the Land Use Task Force, or really by any other forum other than perhaps the CHA’s Policy Working Group (and I don’t know how much it was discussed there as I don’t attend those meetings).  This is not a new idea – it’s been brought up before, but with the response from the local government side that something like this will take a lot of discussion and collaboration if it is to have any hope of being successfully implemented. It was a complete surprise, to me at least, that it was brought up like it was at this CHA meeting.

Cameron Diehl, the League’s executive director, told me yesterday that his members (most of Utah’s cities and towns) will lose their mind over this, as they’ll see it as a mandate from the state without any real involvement or input from local officials, who will have to enact such measures.  He’s got a good point, as you will be able to see if you go back through my previous posts about the difficulty that top-down mandates in other states have had in getting implemented.

If you’re interested in this issue, it’s worth a listen to Chris’s presentation to the CHA, which you can do here.  Chris’s part on the agenda starts just before the 1 hour 8 minutes time mark.  It’s also interesting to note that of all the many land use issues that the Land Use Task Force has been discussion and working on over the summer, none of them were mentioned in Chris’s presentation.  Only the mandatory plan proposal was brought up.  Hmmmm.

I’ll be talking about this more in future posts.  Let me know your thoughts, and let’s get a discussion going on this.

A FLY IN THE OINTMENT

August 25, 2023

One of the themes I’ve been harping on in the whole zoning reform drama going down across the country, and here in Utah, is the importance of state-local collaboration.  Top-down state mandates face a lot of resistance from locals, sometimes even downright refusals, if the local officials don’t feel like their concerns have been considered.

By and large, what has been going down in Utah on zoning reform, such as it is here, has been more or less collaborative.  It’s made for slow progress, in the opinion of some, toward zoning reform in Utah, but at least what has been done stands a better chance of implementation, I think.

However, with more than 240 separate city and town governments and 29 counties, it seems pretty inevitable that someone is going not completely buy in to what goes down.  And that’s not necessarily a bad thing – one of the things I talk about in the presentation I’ve given for a number of years on group decision making is that a diversity of opinions in a group is a good thing, even dissent, because it can cause us all to look more closely at what we may think.

One of our more outspoken local elected officials has just recently caught attention for concerns with the current requirements for many communities to adopt moderate income housing plans, the timeline for doing so, and the options that must be considered.  That official is Mayor Troy Walker of Draper.

One thing that is certain about Mayor Walker is that he speaks what’s on his mind, and his mind often works in a somewhat contrary way.  Yesterday, KUTV2 News aired a story about Mayor Walker’s issues with the MIHP requirements.  While I don’t necessarily agree with everything Mayor Walker said, it did get me to think again about whether those requirements would, in the end, accomplish the goals desired. (Disclosure: I’ve talked about some of those very concerns with a number of planners and local and state officials earlier).  The mayor said:

“One thing I think we need is more time to digest these bills,” said Draper’s Mayor Troy Walker, when commenting on the state’s Affordable Housing Mandate.

He said the city’s planning commission scrambled to put together their 2023 Affordable Housing Plan to submit to the state by the August first deadline.

The original law, which mandated cities form a yearly plan to bring in affordable housing, passed in 2019. However, the legislature keeps moving up deadlines. Plus, each time the law is modified, the city has to re-do their report to meet the new guidelines.

“They haven’t thought it through all the way [and] we haven’t been able to think it through all the way,” said Walker.

Fair point, I think.

Mayor Walker also goes on to point out some of the perhaps unintended, or at least not completely considered, consequences of some of the strategies given as options in the bill on MIHPs recently enacted by the legislature – one in particular, namely, the waiving of impact fees.

Reducing or eliminating Impact Fees for developers is one incentive recommended by the state that Draper chose as part of its Affordable Housing Action Plan.

“Every home that gets built has an impact,” explained Mayor Walker, “it impacts our roads, our parks, our police [and] our fire.”

Taking off the tax burden of paying for the impact their development has on a city lowers a project’s expenses. However, someone has to foot the bill.

“If you take out a bunch of impact fees, and we have to cover the impact, we’re gonna have to raise taxes,” explained Walker, “there’s no other way to do it.”

“Raising taxes only drives up unaffordability of housing,” (Rusty) Cannon (Utah Taxpayers Association) commented, “there’s no way around that.”

Walker said he will have no other choice, however, when it comes to making the Affordable Housing Mandate work in Draper.

That’s a concern about only one of the options listed in the code for consideration by local governments for making housing more affordable.

As with many complex issues, maybe we need to do a little more thinking about these, too.

JUST SAYIN’

August 16, 2023

Story in this week’s DesNews by Lee Sands, local government policy analyst with the Libertas Institute, about a property owner’s attempt in Provo to get approval to build a twin home on a lot in a single-family neighborhood.  While I think many of us have had similar experiences in our careers in land use planning and administration, it is getting these types of incidents out in the press and social media that helps to drive the top-down land use reforms that we have seen occurring in a number of states around the country.

I have been saying we’ve got a pretty good local-state collaboration process going on here, but more stories like this one can quickly change the tone.  Particularly when the closing lines of Lee’s anecdote says:

While the chatter about the merits of the individual twin home continued past the meeting, my thoughts turned to the larger scene. If this is what it takes to get a single twin home built, how are we ever going to get Utah’s housing shortage under control?

As I walked out of the council chambers, my reflections on Utah’s housing crisis continued. If we don’t want our home prices to be as high as California’s, what we need to do is stop debating a single twin home, but look at the real underlying problem on trial — our strict California-style zoning.

Local officials, we gotta be more proactive on these issues!  Just sayin’.

We must all hang together, or, most assuredly, we shall all hang separately

• Benjamin Franklin, 1776

August 12, 2023

Pretty good story in The Atlantic earlier this week about the land use bills passed in this year’s Montana legislative session – though the story’s title is rather provocative and not entirely accurate – The Anti-California: How Montana Performed a Housing Miracle.  It’s not accurate in that California’s state legislature has been trying mightily to change local land use practices to allow for construction of more housing.  Montana accomplished much in one legislative session, different from California, for one big reason, I think – the local governments collaborated and bought in, and state officials sought their input.

The Atlantic story notes that Montana Governor Greg Gianforte tackled the housing affordability issue thus:

Last July, Gianforte created a housing task force, bringing together homebuilders, politicians, experts, and advocates… . In October, the group delivered a series of proposals to state officials; in December, to local officials. Montana’s legislature debated a set of bills based on those recommendations. Then it passed them this spring. The state transformed its land-use policies. It set itself up for dense development. It did this on a bipartisan basis and at warp speed.

The Task Force included local elected officials, and, as the story noted, the recommendations of the Task Force were presented to local officials before they were taken up in the legislature.

What the story didn’t outline, was something I noted in my March 7 blog post, about the biggest of the bills passed – SB382, the Montana Land Use Planning Act:

Notably, the bill was (largely) written by Kelly Lynch, executive director of the Montana League of Cities and Towns, who has a Masters Degree in Urban Planning and has worked in Community Development in the past.

The Atlantic story notes that there were several other bills that passed as well:

“We obviously did not anticipate being able to get the big wins we did,” Kendall Cotton, the founder of the local think tank the Frontier Institute and a driving force behind the housing bills, told me. “We thought maybe there might be one bill that passed. We ended up getting almost everything that we were asking for.”

Not all of these other bills were supported by local government.  But, after hearing local government concerns, things changed.  As noted in a  Helena TV new story:

… during the process, the League expressed more concerns about other zoning-related bills that they said would impose top-down mandates on cities.

Lynch said these bills have been amended in ways that will make them easier for local governments to implement.

“Our position has been that our cities have already been working on these issues for a lot of years,” she said. “We have planners who go to the national conferences. These kinds of discussions have been happening for a long time. But when you go through that local public process, it takes a lot longer. But I think most of them are already in a situation, are very close to having these same types of regulations, especially in the form that the bills are in now.”

Now Montana is being recognized as a national leader in land use regulatory reform, in a way different from that which California and Oregon are being touted for.  As I have noted in previous postings, local implementation of the reforms in those states are proceeding more in fits and starts, if at all.

And as I have also noted, we’ve got a pretty good collaborative process going on here in Utah, led on the local front by the Utah League of Cities and Towns (who APA Utah is working with closely).

Long live collaboration!  It would sure help in our national politics, too!

ARE YOU HEARING THIS?

July 28, 2023

If you’ve been following my trends of thought the last couple of years (admittedly a difficult thing to do, even for me!), you’ll know that I’ve been on kind of a crusade about public hearings for administrative land use actions.  Rather than go into all the detail again about those issues, just go back to the blog entries on this site for May 9, 10, and 12, 2022.  I’ve also done several conference sessions on this topic, such as this one at the ULUI conference and this one at the APA Utah conference.

The bottom line of all this for me is, either we should not hold any hearings at all for administrative land use actions, or we should create a new category of hearing for them and call it something like an “administrative hearing,” which would have rather different rules than those for the public hearings we hold for legislative land use actions like rezones, general plan adoptions or amendments, and land use code amendments.

The whole issue has gotten attention again just recently because of some goings-on in Wasatch County.  You may have heard about the controversy going on for a while now about the proposed Heber Valley LDS Temple, particularly about its height and about its nighttime lighting.  While these wranglings have a lot of interesting land use administration implications in and of themselves, I want to focus on the latest issue to pop up on this, having to do with a proposal from the citizen group to amend the county’s ordinance for these kinds of controversial projects to require what they’re calling Public Impact Discussions.  What’s concerning about this proposal is how it applies such discussions to both legislative and administrative land use actions.  Let me explain.

The law firm of Ray Quinney & Nebeker submitted a proposed land use code amendment to Wasatch County to require the holding of Public Impact Discussions for certain land use actions.  Note: RQ&N is also representing a group of citizens who are opposed to the county’s recent amendments to the Dark Sky code and it’s action regarding the proposed LDS Temple.  The Wasatch County Planning Commission considered the proposed code amendment at its July 13 meeting, but took no action, voting instead to continue the item.

The code amendment by RQ&N, per the county staff report, proposes:

… establishing additional requirements for noticing and public meetings for certain land use applications. These additional noticing requirements are proposed to apply to amendments to Wasatch County Code, amendments to the General Plan, amendments to the Wasatch County zoning map, Conditional Use Permits, Cannabis Production Establishments or Medical Cannabis Pharmacies, and all subdivision applications except for Minor Agricultural Subdivisions.

The thing of note to me about this is the requiring of such public “discussions” (another way of saying “hearings?”) for both legislative and administrative land use actions.  Currently under Utah State code, there are requirements for the holding of public hearings for legislative land use actions, but no such requirement for administrative actions.  As noted in my previous writings and presentations on this topic, the nature of what needs to be considered in legislative actions versus administrative ones is dramatic – one is entirely appropriate for opinions, while the other must be fact- and evidence-based.

The purpose of these new Public Impact Discussions is, according to the applicant:

…is to “provide for sufficient public engagement on certain issues that have an outsized public impact on County residents and/or County policy.”

Sounds an awful lot like a legislative kind of hearing.  How, then, is this to be applied to conditional use and subdivision applications, which are administrative and not legislative?

You can read more about what happened as the Wasatch County PC discussed this proposal in a recent Park Record story, and it will be interesting to see what ultimately happens.  The Wasatch County planning staff has recommended against adopting the proposed ordinance amendment, for a variety of reasons (see the staff report).

For my purposes, what this proposal has done is point out again the need to consider more clearly defining a separation in the hearings that may be held for these two different kinds of land use actions.  This became an issue in the last legislative session as well, as an early proposal of the changes for subdivision plat review and approval stipulated a public hearing to be held (it was ultimately changed to allow for the holding of one public hearing if the local government so chooses).  There was also a bill that almost passed (https://le.utah.gov/~2022/bills/static/HB0135.html) that would have required public hearings at the local government level for virtually every action that might be taken, including for all land use actions.  The language of the bill was ultimately amended to exclude actions taken by a planning commission, and may well be back in some form next session.  This just continues to reflect the trend that seems to be gaining momentum among citizen groups, and thus making its way to elected officials, that all government actions should be subject to public comment.

If this is the direction we’re going to head, then I would even more strongly recommend that we consider creating a new category of hearing for administrative land use actions, perhaps along the lines of what the state of North Carolina has in place, which are “evidentiary hearings” for administrative land use actions.  As noted in my 2022 blog postings, there’s a lot of good information out there about those.

To underscore my thoughts on this, I’ve had discussions with the planning directors in a couple of cities in our state whose land use codes still require public hearings to be held for conditional use applications.  For all the reasons outlined in the previous blog postings and conference sessions, they would like to change this, preferentially by doing away with that public hearing requirement.  But it is becoming more obvious that such actions would likely result in a reaction from the public (and perhaps from elected officials responding to the public), so the best approach may be to create a new class of hearing for administrative actions, with its own set of rules.

Time to get serious about this.

IT’S ALL ABOUT THE MONEY, STUPID

July 18, 2023

Back on May 26, and then again in June 7, the blog posts were about a story written by Jerusalem Demsas in The Atlantic.  One of the main conclusions of the piece and interview with Demsas was that with the way our local government are frequently a number of small jurisdictions scattered around a metropolitan area, each with its own land use authority.  Thus each jurisdiction has a say over what happens within their boundaries, but not really over what happens elsewhere in the region.  To quote Demsas again,

When you restrict a development discussion to a very hyperlocal level, then you can’t have necessary conversations to balance the wants of various interest groups. If you’re dealing with a very rich, white area whose residents are wedded to their exclusionary zoning, they’re always going to resist giving up their space for, for example, homeless housing. And even if these people want homeless housing to exist in general, they have no power to make that occur somewhere else. The only power they have is to exclude it from happening in their own place.

A couple of interesting studies have come out recently which appear to support this contention, likely for a very basic reason:  income and ability to pay for necessary public services in the home town.

The first is a piece on the website The Conversation, which is a website supported by a number of universities around the country and provides a forum for researchers to write about their work.  The piece I’m on, is titled How small wealthy suburbs contribute to regional housing problems, based on research done by Paul G. Lewis at Arizona State and Nicholas J. Marantz at UC Irvine.  Their premise is,

locating new apartments and townhomes near jobs can be difficult. It means building them in existing communities, where small local governments often constrain housing development.

To test their hypothesis, Lewis and Marantz looked a census information from 2008 to 2018, first in California and then nationwide, to see how many new multifamily units were built in jurisdictions with populations over 100,000, and then in those with populations of less that 30,000.  Their conclusions are not really surprising:

Over that span, according to our statistical estimates, a typical neighborhood-size census tract located within a city of 100,000 residents saw the development of 46 more new multifamily units than an otherwise very similar census tract located within a smaller city of 30,000 residents. In other words, smaller cities, which typically are suburban in nature, added far fewer multifamily units.

An extra 46 new apartments might sound like a small number, but it can make a real difference at the neighborhood level. Nearly half the census tracts in our sample – each with around 1,200 to 8,000 residents – gained five or fewer multifamily units.

This is significant, according to the authors, because,

In many of these communities, residents actively participate in local politics to fight increases in density and multifamily housing. As proposals for new housing are deflected away from these small communities, housing either doesn’t get built, thus raising rents by limiting residential supply, or it gets pushed to far-flung exurbs that are distant from most jobs.

Why does this happen?

Why does a municipality’s size matter so much for how many apartments and condos get built? In a word, politics.

Homeowners tend to be the dominant political interest in small suburbs. They may worry that larger or denser residential buildings will decrease their property values, increase traffic or strain local infrastructure. Fears about even minor projects – like the proposal for 16 townhomes near Curry’s estate in Atherton – can get magnified.

To be sure, many homeowners in big cities have similar worries. But in a large, diverse city, anti-growth voices often are counterbalanced by pro-housing interests active in city politics, such as large employers, developers, construction unions or affordable-housing nonprofits.

So are these citizens in smaller communities more prejudiced against “those kinds of people” moving into multifamily housing?  Well, it’s apparently a mixed bag.  It seems to have more to do with class and income distinctions than on racial grounds.

Another writer at The Atlantic, Reihan Salam, writes about this in a story in last week’s issue.  Titled Why YIMBY Righteousness Backfires, it’s subtitle says ”Treating suburbanites as hateful snobs will not make them more welcoming of newcomers.” The basic conclusion is this:

the Chan Zuckerberg Initiative, one of the leading philanthropic champions of YIMBYism, commissioned a series of focus groups and surveys, culminating in a report published last year. According to the authors, “Most renters and owners we heard from expressed that they are wary of affordable housing solutions in their neighborhood, citing worries that it will result in crime, noise, litter, illegal dumping, and a general lack of property upkeep.” Moreover, although a large majority of respondents “broadly embraced diversity as a current or aspirational feature of their neighborhood,” they expressed deep discomfort with the idea of having neighbors significantly poorer than them.

Salam says this about the YIMBYs approach:

Convinced of their righteousness, some of the most ardent YIMBYs have adopted a moralistic posture, denouncing recalcitrant homeowners as snobs or bigots, and calling for sweeping legislative measures that would strip local governments of their land-use authority and further circumscribe the ability of landlords to choose their tenants.

While this line of argument is sure to resonate with some number of social-justice progressives, it is unlikely to persuade anxious homeowners and renters who dread the prospect of neighborhood change. Chris Elmendorf, a professor of land-use law at UC Davis, has warned that framing zoning reform as a matter of economic justice is likely to backfire. Today’s affluent suburbanites might resent the suggestion that they’re guilty of racial animus, but they’re entirely comfortable with being accused of colorblind class prejudice.

So what is then driving the suburban communities’ opposition to more affordable housing, even when these same people say it’s a problem and more affordable housing is needed?

Opponents of new housing in their backyard might not be especially enlightened, but they aren’t delusional either. Exclusionary zoning is, as the name suggests, a strategy for improving the local tax base by deploying local land-use regulation to attract rich residents and deter poor ones. Local public services in the U.S. are largely financed by local property taxes and other municipal revenues, such as sales taxes and parking and sewerage fees. One needn’t be a hateful snob to recognize that while some newcomers will generate more in local revenues than they receive in services, others will not.  Indeed, these local fiscal pressures are arguably the central force shaping America’s fragmented metropolitan geography.

This argument echoes that of William Fischel, professor of economics at Dartmouth University (who we had here at our ULUI land use conference a few years ago), and is the author of the book Zoning Rules: The Economics of Land Use Regulation, in which he makes the very argument that much of the suburban opposition to new housing, particularly higher density housing, is based in economic rationale.

Some are proposing making significant changes to how local services are funded, to reduce opposition to moderate income housing.

YIMBYs should work to soften the local fiscal incentives that drive exclusionary zoning in the first place. Zachary Liscow of Yale Law School found that when states take on a larger share of school funding, rich people become more willing to move into poorer jurisdictions, likely because doing so would no longer saddle them with the special burden of supporting services for large numbers of neighbors who pay little in taxes. Consistent with this pattern, he found that centralized school funding led to lower taxes in lower-income municipalities.

Going back to the piece in the Conversation, the authors also recommend possible fiscal incentives, and a more regional approach to addressing housing.

States could also create incentives for local governments to approve more housing. Certain types of state-collected revenues, such as sales taxes or gasoline taxes, could be distributed to local communities based on each community’s count of bedrooms, with additional credit given for affordable units. This type of incentive might lead local officials to view new apartments as improving their community’s bottom line.

Another approach is for state governments to create metro-level mechanisms designed to represent the needs of housing consumers throughout the region.

This is what Jerusalem Demsas noted in her story and interview back in May.  There is a lot to think about in these pieces I’ve referenced.  To see the veracity of what’s being discussed here, just think back onto some of your recent proposals in your community for more affordable, higher density, multifamily housing.  Right?

ARE YOU TELLING ME WHAT I HAVE TO DO?

July 11, 2023

Well, the backlash has finally hit (at least it’s more apparent now), as evidenced by a story last week in the St. George News.  Ivins Mayor Chris Hart expressed strong feelings about restrictions the state legislature has put on local governments’ ability to set design standards for homes and townhouses.

The mayor of Ivins and members of the City Council say their hands have been tied by the Utah Legislature as far as being able to regulate how homes look in their community.

A piece of legislation that passed with little fanfare or opposition in the state legislature in March – HB 406 Land Use, Development, and Management Act Modifications – prohibited cities from making rules on design elements of housing developments such as color, style of roof and exterior or fencing requirements.

Actually, the design restrictions were put in place by the 2021 legislative session – this year’s HB406 only made some minor modifications to those provisions.  Nevertheless, the reaction, though delayed, is getting stronger.

Mayor Hart, who is a developer and a past president of the Utah Homebuilders Association, minces few words.

“I’m a developer. That’s been my 55-year career. And I have got to tell you, I am so offended by what this developer-dominated, real estate-dominated state Legislature has done to the rights of cities,” Hart said. “My question back to them is, ‘So is it worth destroying the character of the communities in this state?’ Their attitude is, ‘Get the hell out of the way. Let a developer come in and build whatever he wants or she wherever they want, and have the city not able to say really very much about it.’”

The specific beef is about design requirements that have long been in place in Ivins.

Ivins has had rules that the exteriors of new homes couldn’t be too bright and should go with the red mountain landscape. Other design requirements, city officials say, have played a role in giving the area its desert/adobe landscape look.

All that is now out the window, and it really troubles Ivins officials.

Groups of vocal residents in both Ivins and nearby Santa Clara have protested what they say are attempts by developers to “destroy” the aesthetic of the two cities.

“You screwed all the cities. You just make life impossible for us as a mayor and city council to try and keep something special about this place,” Hart said, referring to the Legislature. “I think that they’ve betrayed the people of this state in what they’ve done. And the people don’t know it yet, but they’re going to figure it out.”

This, and other measures passed in recent sessions by the legislature, reflect a trend of preemption of local policies and laws by state legislatures around the country.  A piece last week in FiscalNote, a technology provider of global policy and market intelligence, highlights this trend in a number of policy areas, including land use.

A recent example of (preemption) comes from Connecticut. In 2021, state lawmakers passed HB 6107, which changed the state’s zoning for housing laws in an effort to alleviate its housing shortage. One of its key provisions prevents towns from enacting zoning regulations that cap the number of multi-family housing units. Since zoning is one of the most important powers reserved for local governments, this state law had a direct impact on local authority.

The FiscalNote piece describes local preemption thus:

Lately, some state legislatures have been introducing a substantial number of preemption bills aimed at curbing the autonomy of cities and other local governments. In contrast to earlier preemption bills that set minimum standards but allowed communities to establish more restrictive local laws, these bills seek to limit the ability of local authorities to create ordinances that are more restrictive than state laws, effectively creating policy ceilings.

That certainly would include a number of recent actions by our state legislature on land use planning and administration.  Think subdivision process, accessory dwelling units, concentrated animal feeding facilities, residential street design standards, limits on inclusionary zoning, water-wise landscaping, and a number of others.

I’ve written previously about how zoning reform seems to not work well in states where the requirements are imposed on locals from above without collaboration and input from local officials.  While we seem to have done a better job of that in Utah than in most other states, the Ivins blow-up shows that it is not necessarily always the case.

There’s a broader issue to consider in all this preemption as well.

Cities and local governments often serve as laboratories for policy experimentation, enabling innovative approaches to emerging issues. While preemption laws can help create a simpler regulatory environment, opponents say it comes at the cost of stifling policy innovation. Limited in their power to create laws related to local environmental, social, and economic challenges, local governments find it harder to implement creative solutions tailored to their communities’ strengths and needs.

“When legislation is utilized to preempt local control, it impedes our ability to capitalize on the unique qualities that make up each individual community,” John LaMacchia (Michigan Municipal League Director of State and Federal Affairs) says.

We certainly need to find better ways to work together on these, and other, issues.

HOW SHALL WE GROW? LET ME COUNT THE WAYS…

July 5, 2023

Good story in last weekend’s Trib about how in several counties, residents of newly developed unincorporated areas are trying to incorporate new cities/towns, mainly to get control of their land use planning processes.

Communities around Utah are opting to do away with living in unincorporated parts of their county — pushing instead to gain control of the decisions over development, growth and water usage that will shape them for years to come.

It’s interesting to note that the residents in these areas are trying to incorporate new communities, rather than annex into existing ones.  Some of those existing cities/towns have sometimes sought to annex at least some of those recent developments, but not without conflict.  Because our annexation and incorporation laws in the state code are such a mess, these issues have frequently found their way into the legislature’s hands, with resulting band-aid fixes and even backpedalling (see the whole Hideout/Summit County controversy).

One such conflict has been the new town of Erda and Tooele County, which resulted in some legislative back-and-forthing.

Jess Bird, the city council chair for the newly-minted Tooele County town of Erda, said residents were unhappy with decisions made by the county government over water and growth, which have set off a long road of legal fights and referendums.

Why not annex into Tooele City or Grantsville?

Another has been the effort in the Ogden Valley, just getting up steam, to incorporate.  Annexation into Huntsville doesn’t even seem to be a consideration.

Nick Dahlkamp is one of the handful of residents in eastern Weber County pushing to incorporate the new city in the Ogden Valley.

Dahlkamp, a former engineer and project manager, said the push to incorporate comes from the desire for some in the area to govern for themselves rather than have the county government make the decisions.

“The common theme I was hearing was … (people in the Ogden Valley) felt like even though they were presenting information to the county commissioners, their voices weren’t necessarily being heard,” Dahlkamp said.

I suspect that part of what is driving this desire to make their own new towns is that these residents don’t like the kind of development that county officials are approving (density! mixed-use! multi-family! not large-lot single-family!)

What this all emphasizes to me is the real lack of planning we are doing for new growth.  Much of the undeveloped land in our metro areas is in unincorporated counties.  These areas, of course, butt up right against the borders of our cities, where lots of growth is happening.  All that fresh land out there is mighty tempting, and sooner or later the owners will sell for the high land values and developers will start building.  Sometimes they annex, sometimes they don’t.  Is this any way to run a railroad?

I just recently had a discussion with a city manager of a good sized community off the Wasatch Front who had some questions about the annexation process, as his city was about to get an annexation petition, the first in many years.  Isn’t there growth occurring in your area, I asked.  Oh yes, quite a bit, was his response, but there’s been a long-standing aversion by property owners in the county to seek annexation to the “evil, grasping city.”  So virtually all new development for a number of years has been happening in the county, even with projects like multi-family housing right on the city boundary.  This all reminds me of the pattern of years ago in the Wasatch Front counties, and how that all ended in a huge mess.  Looks like the lessons haven’t been learned!

Late last year, the Land Use Task Force asked me to take charge of an effort to revamp the state’s annexation code.  We had a pretty good working group comprised of a number of city and county officials who worked on this.  One of the products of that working group was a memorandum on policy issues that should be considered in making changes to the annexation code.  One of those recommendations said,

The existing code indicates that “urban development” considered for approval by a county in the unincorporated area adjacent to an existing municipality cannot move forward until the county notifies the county, and then either receives a reply (whether positive or negative), or waits a specified period of time.  After that, the development review and approval may proceed in the county.  Given the issues surrounding the management of growth in Utah, the working group discussed briefly if this was the best policy.  Should the state instead revert to a policy that had existed in the annexation code in the past of not allowing development in unincorporated county areas within say a half mile of a city boundary, without the express agreement by the municipality.  Should we consider what occurs in some other states, such as extra-territorial land use authority by municipalities within a specified distance of their city boundaries?  Or perhaps something like urban growth boundaries around municipalities, as some states do?

In those discussions with the city manager mentioned earlier, we concluded that what really needs to happen is a joint effort between city and county officials to discuss how future growth should be handled, develop a plan, and stick to it!  Some counties, like Davis, have explicitly stated that urban growth belongs in cities and have changed their zoning and development process to direct things that way.  More should follow that lead, and at least decide how they’re going to handle new growth for the best long-term outcome.

A CITIZEN SPEAKS

June 21, 2023

I don’t often do this, but I just read such a good piece about some of the main issues with our housing crises and growth of communities, I think I’m just going to reprint the whole thing right here.

This is a letter to the editor at the Salt Lake Trib from Jean Lown in Logan.  She is not a planner, she is a retired family economist.  Her letter is in response to a story in the Trib several days ago about the size of houses being demanded and built (the story is paywalled by the Trib).

When Jean talks about what can be done at the end of the letter, I think she could (should) have included contacting local government officials and not just state legislators, that’s really where much of the rubber meets this road.

So, without further ado, here is her letter

Natalie Brown’s article “Do we really need those large houses?” resonated with this (non-LDS) retired family economist. Over the decades since the baby boom, while families have gotten smaller, houses have gotten larger. Besides the obvious result of using excessive resources to build, heat, cool and maintain each house, suburban sprawl grows, invading precious environmental spaces. Additionally, Utah housing developers continue to build and profit from extensive “big house” projects despite the consequences. And still we have a housing “shortage.” There is no paucity of residential square footage being built, it’s just not affordable to anyone except the wealthiest or people who accumulated housing equity over decades of home ownership.

Baby boomers of which I am one, have benefitted from family-friendly economic policies, like low-interest subsidies for a first home, a booming stock market that fed our retirement plans, and secure employment. Over the past 50 years our economic system has tilted to benefit those with the most resources, becoming more (and more) inequitable.

The unaffordable rents and mortgage payments families face today take my breath away. It is time to change the “not in my backyard” attitudes toward varied housing choices and consider how the large single-family house with large yards is gobbling up open spaces (in our rapidly growing state.)

Brown (eloquently) makes the case for smaller houses, higher densities and fewer water-guzzling lawns. Her suggestions are consistent with a need to address our overheating climate by adjusting our lifestyles to smaller houses, shorter commutes and incorporating walkable, bikeable infrastructure.

How can an individual help solve these problems?

Congress and our state legislators need to hear from many different voices calling their offices in a steady stream. Today is a good day to join with the voices of Citizens Climate Lobby and young conservatives to ask for legislation that brings equity in housing and urges our representatives to legislate for climate solutions.

Jean M. Lown, Logan

FOR WANT OF A NAIL … THE KINGDOM WAS LOST

June 19, 2023

Y’all remember SB84 from this year’s legislative session?  Mostly the bill was about modifications to the provisions for HTRZs (Housing and Transit Reinvestment Zones), but very late in the session the language from another bill that was aimed directly at entitling a proposed development at Kimball Junction in Summit County was added to the bill.  To refresh your memory on the topic, take a look back at my March 4, 2023 blog posting, and read these illuminating press pieces from the Park Record and Trib columnist Robert Gehrke.

Summit County officials promised, and did indeed file, lawsuits against the state legislature and the developer over this completely mishandled legislative action – as Robert Gehrke characterized it,

The provision had no public hearings, no public input and no legislative debate. Even the two House members who represent Summit County seemed unaware it was in the bill and voted for the measure.

Last Thursday, a hearing was held in Third District Court on these suits and the motions for summary judgement.

Summit County attorneys raised a number of issues as a basis for why that legislative action should not stand, among them things like violation of the Utah State Constitution’s Ripper Clause, and interfering in a valid and legal contractual agreement (the land use agreement).  But it was not about any of those things that the judge granted the county partial summary judgement – it was over a technical detail – the applicant (Dakota Pacific) had never submitted a land use application, which was one of the requirements of the legislation:

an owner of undeveloped property who has submitted a land use application to the county on or before December 31, 2022, and is within a 1/3 mile radius of a public transit hub in a county described in Subsection (8)(a)    (SB84, lines 298-300)

I can hear a lot of people doing the “say what?” because, as the Park Record story points out, Dakota Pacific had indeed applied for a zone change, so isn’t that a land use application?  Well, as of a few years ago, under LUDMA, it is not!  Even Gehrke, in a column he wrote about the ruling over the weekend, said,

An attempt by the Legislature to force Summit County to allow a controversial housing project near Kimball Junction fell apart Thursday, thanks mostly to sloppy wording in the law.

I’m not so sure that it was sloppy drafting of language in the bill as maybe an incomplete understanding of the nuance of land use provisions. Let me explain.

A few years ago, the Land Use Task Force put together a proposal to more clearly establish a distinction between legislative and administrative land use actions, in part because this was not clear to most, even to some state judges as they dealt with land use issues.  The bill that resulted did a number of things, one of which was to define more specifically the terms that would be used for these various kinds of land use applications and actions.  With passage of the bill, a “land use application” is now defined in LUDMA ( Utah Code 17-27a-103(33) as

an application that is (i) required by a county; and (ii) submitted by a land use applicant to obtain a land use decision

A land use decision means (UCA 17-27a-103(35)

An administrative decision of a land use authority or appeal authority regarding (a) a land use permit or (b) an land use application

Legislative land use actions do not have a specific definition in LUDMA, they is just characterized by saying that a land use application (UCA 17-27a-103(33))

(b) does not mean an application to enact, amend, or repeal a land use regulation

Well, a request for a zone change is indeed a proposal to change an existing land use regulation, so therefore, it’s not… you get the picture.

This is a distinction that even many planners and local government attorneys aren’t that clear on, I think,  because they don’t spend that much time parsing our rapidly growing state land use provisions.  It sure seems to have caught out the developers (and probably others) in this case!

In a June 15 Park Record story, it was noted,

Carolyn LeDuc, an attorney representing Dakota Pacific, offered a different perspective. She … said Summit County has always treated the proposal as a land-use application.

(Judge) Mrazik quickly dismissed her argument because the development agreement indicates that is not accurate. He stated that Dakota Pacific would not be able to move forward with the project if Summit County rejected the proposal and told the developer to reduce its density.

The judge ruled the developer did not have an existing land-use application as required by the law because it was effectively seeking a zoning change.

Therefore, according to the judge, game over. No need to deal with all those other, more foundational issues.  The proposal doesn’t qualify with one of the technical requirements of the new code.

There were a number of other aspects to this case and the ruling, and Dakota Pacific still has the option to appeal.  But in my mind, I think the judge got it right, which makes much of this a pretty simple open-and-shut case, given the way our state code is now written (disclaimer: I’m not an attorney!)

Who said the LUDMA provisions were getting pretty darn complex, lengthy, and legalistic? 😊

It also means that if (when?) the legislature tries a move like this again, they’ll have to be more careful about the provisions of the LUDMA. So will everybody else.

LOCALS CAN’T DO IT ALONE POSTSCRIPT

June 7, 2023

Wow, I guess it’s like Hollywood without the screenwriters, I’m only doing “sequels!”  In this case, another follow-up to a previous post about a story in The Atlantic.

Last week, Jerusalem Demsas was interviewed about her story on zoning reform efforts in Colorado, with some more good observations about the public processes we get so tied up in.  One thing that struck me in particular about the whole effort has been how people, when they are asked on a broad scale if they are in favor of doing things that will improve affordability, such as higher densities, reduced parking, mixed use, and so on, the majority say they are in favor of those measures.  But then, when it comes to a proposal to enact one of those measures in a given neighborhood, those same residents are now not in favor, at least not in their neighborhood.  We, of course, have taken to calling that NIMBYism.

This was just recently made obvious again in Envision Utah’s project on Land Use Review for Attainable Housing, where they are examining the land use codes for 35 local governments around the state to see what the barriers may be and what the most effective changes would be.  In the first step of that project, Cody Lutz, the project manager, found in a stakeholder survey that most favored the idea of increasing “missing middle” housing, smaller homes, and smaller lots.  And yet, most codes are written to make such outcomes difficult, if not impossible.

Demsas, in her interview, touches on this contradiction in what I think is a particularly clear way.  She says,

People are very unhappy with the lack of housing affordability. They’ll say in polls that they want there to be more types of housing available, that they want there to be more affordable types of housing available. They want their kids to be able to live near them. They want there to be senior housing. They want teachers to be able to afford to live in their communities; there’s concern about police officers policing communities that they’re not actually able to live in too. And yet, time and again, projects fail, because no individual development can check every single box for everyone.

A single development can’t balance all of the concerns people have about housing. If the question is “Should we allow this block to turn into duplexes?” community members who support the idea of building more housing in general might respond, “Why here?” And that response could be informed by reasonable concerns about housing that are broader than what that single development project entails. They may have concerns about gentrification, or about open space, or about the types of housing that are currently available.

… if you’re trying to build a new condo development in an area where increasing numbers of rich young people are moving for jobs, that’s not going to respond to the needs of people who have different kinds of concerns. And because no individual developments can check every single box, many projects end up falling through.

When you restrict a development discussion to a very hyperlocal level, then you can’t have necessary conversations to balance the wants of various interest groups. If you’re dealing with a very rich, white area whose residents are wedded to their exclusionary zoning, they’re always going to resist giving up their space for, for example, homeless housing. And even if these people want homeless housing to exist in general, they have no power to make that occur somewhere else. The only power they have is to exclude it from happening in their own place.

Well said, Ms. Demsas.  It argues for a more regional, cooperative approach to this kind of issue, housing affordability.

15-MINUTE CITY POSTSCRIPT

June 6, 2023

Right after I wrote the post about 15-minute cities, the Deseret News Magazine ran a piece on the very topic.  Titled Strolling Into Controversy, the subtitle says,

The ‘15-minute city’ reimagines our car-centric urban spaces. Some are up in arms

One of the piece’s authors, Adele Peters, seems to get the basics right:

The basic concept of the “15-minute city,” as a way to reduce pollution from cars and to increase quality of life, isn’t new. … But as more cities have started talking about it, it’s also spawned a backlash. In the U.K., Conservative politician Nick Fletcher called 15-minute cities an “international socialist concept” that would “take away your personal freedoms.” In reality, the idea offers more freedom, not less. “What it means is as an individual, you aren’t relegated to your automobile.”

Still, people balk at the idea of changes in infrastructure that could make walking and biking easier. But people forget … that top-down planning created that car dependency, including zoning that keeps housing far from stores, or wide streets with fast traffic and little shade that few people want to walk on. It’s not so much that people choose to drive, as they’ve been forced into it by bad design.

However, the piece then switches to writing by Itxu Diaz, and drops into the conspiracy world:

… it is also reasonable to assume that the politicians who must implement this plan would feel quite comfortable imposing restrictions on citizens, as they demonstrated in the pandemic. And call me paranoid, but I don’t trust that the technocrats devising these systems will resist the urge to go Big Brother. Like any utopia, the 15-minute city could only work by giving too much power to the government.

Now Diaz is Spanish, and I think he may be viewing the planning world from that standpoint.  It’s hard to imagine that kind of top-down coercion being exercised in local communities here in the U.S.  If anything, as the efforts at zoning reform in a number of states have recently shown, top-down planning often results in non-acceptance and little or no implementation.  My friend, who I mentioned in my previous post on this topic, need not fear.

WHAT? THIS AGAIN?

June 2, 2023

A few weeks ago I was talking to one of my neighbors and dear friend about some of the recent goings-on in local politics here at home and around the state.  She then brought up something she had heard about and asked for my take on it – this “insidious” idea of making everyone live in “15-minute cities.”  What?

I responded by saying it’s not an insidious thing, it’s an urban planning concept that’s been talked about for some time.  In fact, I said, I was talking about it when I was planning director at Salt Lake City 10-12 years ago.  Why do you think it’s “insidious,” I asked?  Well, she replied, it’s a government plan to make everyone give up their cars and live in small high-rise apartments with no yards.  Oh, wow, I said, really?

Apparently the concept was noticed locally recently when The Point, the redevelopment project of the old Utah State Prison site, got a lot of press attention for announcing that the 15-minute city concepts would form the basis for the new development.

But where was my friend getting the idea that this was some liberal government conspiracy to make everyone live in ways that were, uh, what, anti-suburban?  Oh, wait, this was beginning to sound a lot like an old bogeyman from years ago, Agenda 21!

There’s nothing coercive about the 15-minute concept, I tried to explain.  It’s a set of principles for urban planning to achieve some new and “better” ways to organize communities and meet the needs of various community members.  Like all planning concepts, it would have to go through local planning processes, be adopted by local elected officials, and enacted through standards land use regulations, just like zoning is today.  Hmmm, my friend said, maybe.

Later, as I recalled this conversation, I thought here we go again.  The extreme polarization of our society and politics is driving ideas and concepts in attempts to divide us. I remember how nutty things got with Agenda 21 back in the day, when even ultra-conservative talk show host Glenn Beck co-authored a series of novels about the bad times brought on by compulsion to Agenda 21.

Could this be what was happening again, this time with 15-minute cities?  Today I saw this piece in Governing magazine titled Culture Wars’ Break Out Over Public Transit, Urbanist Ideas, and I guess the answer is … Yep!  The story’s subtitle is:

From claims about an “Agenda 21” to attacks on 15-minute cities, a range of conspiracy theories have taken aim at progressive ideas around urban mobility and city design.

Alex Roy, co-founder of mobility consultancy Johnson & Roy, speaking at an urban mobility conference in Miami in early May, is cited in the story, saying:

“There’s been a constellation of lucid, well-intentioned urbanists talking about the need for better city design, and improvements to the design to accommodate new modes, and improve upon things we know to be true, which are pedestrian zones, walkable neighborhoods — 15-minute cities. These are commonsense ideas,” said Roy, adding, in the last year, these generally “commonsense ideas” have seen pushback as even urbanism falls victim to American “culture wars.”

Skip Descant, author of the Governing story, gives a good anecdote about how such things get turned into culture war fronts, instead of concepts for discussion and rational debate.  He says,

Even in my own small, rural town in Yreka, Calif., a recent City Council meeting to approve a housing plan was disrupted by residents saying the plan and the city’s planning department were part of a dark global conspiracy known as “Agenda 21,” pushing a plot to erode property rights and advance “15-minute cities.”

“We’re not going to have any more nice traffic in Yreka. That’s all going to go away, because they’re going to make driving crappy, so that you stay home, so that you ride your bike instead of drive your car,” said one resident, offering an image of her own sort of hellscape where bikes fill the streets. It was a comment that drew loud applause from those opposing the housing plan.

Forget the idea of having some real discussions about various ideas and concepts for our urban environments, instead the goal of some seems to be to drive wedges and alarm people.  To what end?  Power, really.  It’s all about who gets to be in charge and do what they want.  Fear becomes the driver, fear of something different, even if it has the potential of being something better.

LOCALS CAN’T DO IT ALONE

May 26, 2023

Local government is about what you can do for me, right now. Because local officials have a narrow jurisdiction, engaged voters have a direct line to them and significant influence on their decisions. This tight relationship is good for handling issues like broken streetlights and potholes, but it doesn’t lend itself to managing society-wide problems, such as a housing crisis. This is why the political logic of building a lot more housing rarely carries the day at the local level.

LAND USE A GROWING ISSUE, LOCALLY AND NATIONALLY

May 13, 2023

The Governor’s office kicks off next phase of the Statewide Conversation on Growth, asking citizens to take a survey on preferred growth strategies.  Laura Hanson and her staff, and Envision Utah, have been working hard on this, kudos to them!  Here’s a news story about it, and here’s a link to the survey.

The legislature’s Government Operations Interim Committee meeting this coming Wednesday includes on its agenda a discussion about municipal annexation and incorporation.  I’ve been directing a working group of the land use task force about recodification of the annexation code, and the group has produced a draft recodification and a memo about recommended policy changes on annexation.  Unfortunately, I am out of town on Wednesday and won’t be at the meeting, but the League is on the agenda to present and will hopefully let the committee know what we’ve been up to!  I did a session on this at the APA Utah Spring Conference in Vernal yesterday, so the topic may be gaining some awareness and momentum.

An interesting blog post just came out a few days ago by David Morley, editor of Nation APA’s Zoning Practice, essentially saying the same things about “zoning reform” that I’ve been writing about on this blog.  Titled Should States Shrink Zoning?, Morley writes,

Among policy wonks, “zoning reform” has become a euphemism for state changes to zoning enabling laws that shrink local control in the hopes of expanding housing supply. The basic rationale is that piecemeal reforms to individual local zoning codes simply aren’t enough to make a dent in the housing crisis. But, as planners know, state preemption is often a contentious subject, and in the realm of planning, one that has a complicated history.

So, what are the chances that current calls for zoning preemption, or an outright abolition, will result in a straightforward improvement to land-use regulation (as a policy tool) and a dramatic expansion of housing supply as a downstream outcome? Jacobs contends that neither is likely to happen without first acknowledging that local zoning is not, inherently, the problem.

The real fight is usually over the interests that control zoning (and zoning reform). Jacobs cautions that focusing narrowly on the issue of preempting local control is unlikely to remove the problem of the tool being “captured” by interests that don’t align with those of the planning community. Jacobs suggests the path forward is one that recognizes that planners have an important role to play at the state and local level.

Amen!  States that are going the “top-down” preemption route are generally finding that these efforts don’t produce the results intended because “foot-dragging” and lack of support at the local level makes it nigh-on impossible.  Collaborative state-local efforts seem to fare much better, which is something we have been noted for (at least among policy wonks) in Utah.  Another example of what is being considered a failure just popped up in Colorado, as evinced by this news story headline: The Big Colorado Land Use Bill Has Officially Failed.  The main reason for failure?

The mayors of almost every city in the metro Denver area came out against the bill …  “The governor and proponents are interested … in usurping the rights of property owners to protect the character and meet the land-use needs of their communities,” Colorado Municipal League Executive Director Kevin Bommer told a legislative committee.

“I think they wanted to do something bold and sweeping because we have a problem with affordable housing and I think they wanted to address that. Unfortunately, I think that you need to have all the people at the table if you want the solution to actually work,” (State Sen. Rachel Zenzinger) said.

Montana was more successful, with a major bill written by the Montana League passing, but so did a couple other bills that local officials were less supportive of.  These states are getting all the attention.  And us here in li’l ol’ Utah?  We’re passing stuff, it’s not as dramatic, and it gets no attention nationally, except that Cam Diehl, the Utah League’s Executive Director, tells me he’s getting calls from all around the country asking how it happened here.  Shhhh!  It’s a secret!

LEGISLATIVE STUDY ISSUES

May 9, 2023

The Legislative Management Committee met in the last few weeks and adopted the list of study items for the 2023 Interim.  Here are ones related to planning and land use issues.

Economic Development and Workforce Services Committee

• Review the impact of legislation passed over the last few years related to housing affordability, including a presentation from the Office of the Legislative Auditor General on the performance audit of housing affordability.

Natural Resources, Agriculture and Environment Committee

• Study water issues, including: • Methods for taking conserved water (from secondary metering, agriculture optimization, turf removal, etc.) and shepherding it to the Great Salt Lake • The concept of “saved water” and how it should be treated in statute • The balance between the needs of an irrigation company and the needs of a shareholder seeking to file a change application • Revisions to the Watersheds Council Act • The Office of the Legislative Auditor General’s audit report on Utah’s water usage
• Study agritourism, including challenges facing agritourism farms in or near urban areas, and how to protect agritourism farms

Political Subdivisions Committee

• Study the creation of limited-use infrastructure districts as a political subdivision of the state. The committee will consider whether limited-use infrastructure districts (if created) should issue assessment bonds and energy assessment bonds, enter into interlocal agreements, impose fees and levy property taxes, and acquire improvements
• Examine metro townships, including the taxing authority of metro townships as it relates to law enforcement services and the long-term viability of metro townships. Currently, metro townships have very limited taxing authority and have to contract with special service districts to provide revenue sufficient to provide necessary services. Additionally, the committee will consider more broadly the long-term plan for metro townships, including whether metro townships should continue as-is, incorporate, or be annexed into existing municipalities.
• The Utah Supreme Court recently ruled in Larsen v. Pleasant Grove City that cities may impose a transportation utility fee. The committee will study and consider whether the state should allow for municipalities to impose a transportation utility fee and, if a transportation utility fee is imposed, whether the state should impose direction for how those fees will be managed, whether the fees should be limited in use and scope, and any requirements the Legislature may decide to impose upon the purpose and imposition of those fees.
• Review the governance structure, powers, and oversight of state land authorities, including Military Installation Development Authorities, the Point of the Mountain State Land Authority, and the Inland Port Authority.
• Station Area Plans (SAPs), when implemented, govern land use decisions for areas within ½ mile of Trax or Frontrunner stations and ¼ mile of bus stops. The committee will review SAPs use in Utah, including how many have been implemented and where they have been implemented, why SAPs are denied or approved, and what lessons have been learned regarding the impact of and implementation of SAPs.

Transportation Committee

• Study several items related to public transit, including: • An overview of Utah Transit Authority (UTA) including current transit projects, ridership, and cost per riders • Distribution of UTA services compared to the receipt of tax funds • Ski bus service solutions • Long-term plans for Front Runner including how UTA is using its funding • Housing & Transit Reinvestment Zones • An update on paratransit service coordination
• With the creation of the Active Transportation Investment Fund (ATIF), the committee will review the implementation of the Utah Trails Network, including the Utah Department of Transportation’s (UDOT) plan to prioritize funding, enable canal corridors, etc.
• Study several transportation funding items, including: • Outcomes and uses of the State Infrastructure Bank • An update on funding in the Transit Transportation Investment Fund (TTIF) • A UDOT prioritization update on long-term planning as it relates to corridor preservation, right-of-way planning, the grid system, and the future growth of Utah
• Study utility relocation as it relates to 2023 General Session S.B. 185 and transit right-of-way. The committee will also review transportation utility fees and the recent Utah Supreme Court ruling in Larson v. Pleasant Grove

There’s no shortage of planning related issues on this list!  Also, the former Commission on Housing Affordability (now a subcommittee of the Unified Equal Opportunity Commission) meets today and may discuss issues to work on this coming year.

IT’S EVERYWHERE!

May 8, 2023

Just to confirm again the wide-ranging nature of the whole “zoning reform” trend, here are a couple of items that speak to and confirm that.

Montana’s state legislature passed at least three bills on this topic.  The big one was the Montana State Planning Act, SB382, which I have written about previously.  It was supported by most legislators and by the Montana League of Cities and Towns (the League executive director, who has a master’s degree in urban planning, wrote much of the bill).  It was an example of state/local cooperation on the issue, but the legislature also passed a couple more bills that were not so well-received by local governments.

SB 382, sponsored by Sen. Forrest Mandeville, R-Columbus, passed 95-5. It would fully overhaul cities’ land-use planning process. As part of that, it would require that cities adopt five recommendations from a list of 14 strategies for increasing housing access. The bill would apply to cities with more than 5,000 people that are in counties with more than 70,000 people.
· SB 323, sponsored by Sen. Jeremy Trebas, R-Great Falls, passed 72-26. It would require that cities with more than 5,000 residents allow duplexes anywhere that single-family residences are allowed. The bill previously would have required larger cities to also allow triplexes and fourplexes, but it was amended in the House Local Government Committee.
· SB 245, sponsored by Sen. Daniel Zolnikov, R-Billings, passed 96-4. It would require cities to allow multi-unit housing developments in commercial zones. The bill would apply to municipalities designated as urban areas that have more than 7,000 residents.

… the League expressed more concerns about other zoning-related bills that they said would impose top-down mandates on cities.

The bills were substantially amended as a result of local opposition.  Here are a couple more stories on the Montana bills:

Pro-housing zoning bills advance

Montana Joins Push To Overhaul Single-Family Zoning Laws to Increase Housing Density

Colorado, which I’ve also written about previously, had to scale its zoning reform bills way back after getting stiff opposition from local governments.  Just goes to show, I think, how not working closely with those cities and counties on these types of measures can really limit what gets done.

Colorado land-use bill survives crucial first vote, but drops 70% of its upzoning along the way

The centerpiece of the bill when it was introduced last month was an “upzoning” requirement that would have allowed denser development across large swaths of many cities. The idea drew intense opposition from local leaders, including many Democrats, because it overrides existing city laws.

On Tuesday, bill sponsors and members of the Senate Local Government and Housing Committee rolled back the measure’s ambitions. Instead of being forced to allow higher density in all their residential neighborhoods, Front Range cities would only have to upzone more limited areas.

And finally, here’s an example of the international nature of this trend to reform land use regulations.  In reading a couple of stories in a recent issue of The Economist on broader political issues in other countries, these clips lit up my brain.

This one about the UK:

Labour, says Sir Keir, will change regulations to permit onshore wind farms and accelerate their connection to the national grid. “The role of government is to knock those impediments out of the way,” he says. As for confronting nimbyism and expanding housing supply, an area where the Tories have conspicuously fallen short: “I think we have to take this on,” he says. “It will require tough decisions.”

And this one from, of all places, Ukraine!

Still, there is an opportunity to make permanent the diminution in organised crime in Ukraine. The main effort must come from within the country. A draft law from December aims to reform urban planning: related government documents say the construction industry is prone to “abuse of power”, “general corruption” and “avoidance of punishment”.

Truly a global issue!

IT AIN’T OVER YET

April 19, 2023

Yesterday, Gov. Spencer Cox signed a raft of growth, housing and transportation bills in a ceremony set in Herriman.  The signings included three of the significant land use bills – HB364: Housing affordability amendments; HB406: Land use, development and management act; and SB174: Local land use and development revisions.

Dozens of current and former lawmakers, local leaders, transportation officials, housing advocates and more accompanied the governor, speaking briefly to the bevy of bills that Cox said are aimed at “managing growth and growing in the right way.”

Cox told reporters that Herriman, and other parts of southwest Salt Lake County, exemplify that sentiment, pointing to the “density that we’re seeing in different places.  I talk about Daybreak a lot. One of the things I really like about Daybreak is you have different types of housing all in the same neighborhoods. You have multi-family housing, which is cheaper, and rentals, then you have starter homes and middle income homes and higher income homes all in the same neighborhood,” Cox said.

Referring to the bills passed by the legislature this session that he was signing at the ceremony, Cox also said,

“We understand that if we’re going to maintain our high quality of life, and we’re going to make use of a place where our kids and grandkids can live, we really must focus on providing more housing opportunities. We need to build more trails and recreation opportunities and invest more in strategic infrastructure.”

“…we really must focus on providing more housing opportunities.”  No doubt, we have not seen the end of further efforts to “reform,” or at least modify, land use rules and processes.  The Unified Economic Opportunity Commission at its meeting last week charged its working groups, including subcommittees (one of which is the former Commission on Housing Affordability) to report back next month with their work plans for the coming year.  The Land Use Task Force will be gearing up sometime soon, and will surely address a number of land use areas.  And the Legislative Management Committee last week also set forth its list of interim study items, which include a number of land use and growth issues (more on this in an upcoming post).

Actions in other states also points to the fact that this issue of land use or zoning reform is, in the words of a Monty Python sketch, “not dead yet!”  A recent story by Atlantic writer Jerusalem Demsas (who, as I’ve noted previously, is rapidly becoming one of my favorite writers) notes that many states have become like California (even when they say they don’t want to be) in adopting restrictive housing regulations, and now some are again behaving like California as they try to unwind those policies through top-down mandates.

How did so many American municipalities end up with “California-style” policies? As the economist William Fischel writes, zoning was not “the product of circumstances in one particular place” but a response to “popular demand, … (as homeowners,) terrified that their residential communities would be overrun with “noxious” uses, …began demanding zoning regulations that would protect them from people and buildings that they thought would reduce the value of their homes. ”

As a side note here, Utah again gets a mention in a Demsas piece, in how we are similar to California:

Population growth spurred California’s economic growth. But as people flocked to the state, cities and suburbs refused to change the built environment to accommodate these newcomers. From 2010 to 2020, the state permitted (not built—just permitted) one home for every 2.54 jobs it added. In this, it did lead the country. Utah had the next-worst ratio: It permitted one home for every 1.57 jobs.

The purported solution in California, and now in an increasing number of other states, is top-down, state-mandated land use and zoning “reform.”  I’ve written about this a number of times previously, and noted that in Utah we have had at least moderate success in using a more collaborative approach between state and local leaders.  In fact, in last week’s UEOC meeting, statements were made about this, and a call was made to find ways to be even more collaborative.  This is important if we are to succeed in the goal of establishing more affordable housing.  Demsas throws out a number of examples where the top-down approach is having a rough time:

In North Carolina, a 2021 bill to legalize small multifamily buildings in certain communities buckled under opposition from town leaders. In Maine, a similar effort to legalize denser housing types was watered down after opposition from municipal leaders. And in Virginia, an attempt to legalize duplexes in more of the state didn’t even make it past committee, as legislators balked at challenging local control.

Yet, if housing affordability is to improve, things have got to change, and local leaders have to be part of that.  More on this topic coming up.

NEED TO PUT YOUR MONEY WHERE YOUR MOUTH IS

April 11, 2023

The Utah Land Use Institute Spring Conference in St. George last week was a great event,  well-attended and with lots of good discussions and information presented.  Be sure to check out the ULUI website to see the video-recorded sessions and pick up some of what went on.

As much of the talk at the conference was centered around housing affordability related to changes to local land use regulations and practices, I heard some attendees make this comment:  even if all the changes to local land use are made and housing production is increased, will the housing really be more affordable?  Will the cost of housing come down?  I’ve heard this before on a number of occasions, from a variety of different people.  I’d say mostly this is a gut sense, that even with lowered costs the price of housing stays up there because of market forces.  I’ve even heard builders say, well, we will charge whatever the going rate is in the market.

Now there may be something to put some meat on the bone of this contention.  A paper published on March 21, 2023 in the journal Urban Studies titled Land-Use Reforms and Housing Costs: Does Allowing for Increased Density Lead to Greater Affordability? points to an answer:  not really.

The authors looked at this question:

The debate over how to increase the supply of affordable housing … stands unresolved. Many housing economists posit that inadequate supply stems from overly restrictive land-use regulations. Loosening these restrictions might increase housing production and thus decrease prices.

The study looked at eight major metropolitan areas encompassing some 1,136 municipalities, each with their own land use regulations, from 2000 to 2019.  The overall conclusion?

We find that cities that passed reforms loosening land-use regulations (increasing allowed housing density, or “upzoning”) saw a statistically significant increase in their housing supply compared to cities without reforms. This increase, however, occurred predominantly for rental units affordable to households with higher-than-middle-incomes over the short- and medium-term following reform passage; effects for units affordable to those with extremely low incomes and very low incomes were positive but not significant, perhaps due to the small number of such units at baseline in each city.

In other words, housing affordability did not generally get better with loosening of local land use regulations and increases in housing production.  In the words of the study authors:

These results suggest that reforms loosening restrictions are, on average, associated with an uptick in new housing supply. But this increase is likely inadequate to increase the availability of housing affordable to low- and middle-income households in the short-term, at least within the jurisdictions that execute reforms, and among the reforms that we studied.

The study authors do have some suggestions:

Cities should consider pairing direct investments in housing subsidies, such as immediate investments in housing vouchers and project-based subsidies for publicly assisted housing, with reforms loosening restrictions to address both short-term and long-term housing affordability.

We did see some of this in our most recent legislative session.  It seems that much more effort needs to be concentrated on the second part of this recommendation, however, in comparison to the attention that is being given to the first part.

WHY IS THIS HAPPENING? IT’S NOT MY FAULT! (ARE YOU SURE?)

March 29, 2023

Another example of the top-down approach to zoning reform just cropped up in our neighbor to the east.  Colorado Governor Jared Polis last week unveiled a proposal that has several bill sponsors in the state legislature.

The Polis administration has laid out a sweeping plan that would explicitly allow more dense housing across Colorado’s increasingly expensive metropolitan areas and resort communities, even if residents and local elected officials object to it.

The “More Housing Now” proposal, revealed Wednesday, would be a significant shift in how Colorado’s cities and towns grow, and who has the ultimate power to shape that growth.

Similar to such measures in a number of other states, the Polis proposal would mandate certain zoning provisions in most metropolitan communities, and would require local plans to accommodate new affordable housing.

Those communities would have to allow the construction of “middle housing,” defined as townhomes and multiplexes with up to six units, as well as accessory dwelling units, on lots in all residential neighborhoods.

There are specific caveats included in the bills as well.

Cities could still customize their codes, for example by adding design requirements. … Cities would not (however) be allowed to require parking for any of the denser “middle” housing types. Rather, the amount of parking per unit would be left to developers to decide. “Why would we be … forcing people to pay for parking who don’t even have a vehicle themselves?” Polis said.

If a local government fails to meet the “minimum standards” of the bill, the state would override local zoning rules and implement a standardized code instead. That standardized code would be developed by the state’s Department of Local Affairs.

Some support among local government leaders for the proposal has been expressed:

“Housing is a crisis all over Colorado,” Glenwood Springs Mayor Jonathan Godes said in a statement. “Mountain communities have been leading on this issue for years, and we are happy that there is potential for statewide goals that align the entire state, while still respecting the differences in communities.”

But the collaborative efforts that have been somewhat apparent here in Utah don’t quite seem to be in place in Colorado.

“We just got the bill last night, so we’re still going through the details,” Colorado Municipal League Executive Director Kevin Bommer said in an interview. “But … we know just from what has already been presented to us that it represents the most sweeping preemption of local land use and zoning authority that Colorado’s probably ever seen. And certainly the biggest one in modern history.”

If local leaders hope and expect to not have mandates for local planning shoved on them from state level leaders, they must show a willingness to make accommodations for the problems that have been on full display for some time now.  Sometimes, however, local leaders are still dragging their feet.  A good example of this comes from a story in yesterday’s SL Trib.

Evelyn Miller is all-in on supporting more affordable housing in Washington County, but her support comes with a caveat: She doesn’t want multifamily homes anywhere near her home. “I don’t want to sound politically incorrect,” Miller said, “but that kind of housing is incompatible with the look of my neighborhood. Affordable housing projects are often not aesthetically pleasing, and I don’t want to see something built that could lower my property values or lead to more crime.”

A survey city officials conducted in December in nearby Ivins shows residents there don’t want to see town homes or duplexes cropping up in their neighborhoods, either. More than 70% of respondents in the survey opposed more high-density housing such as town homes and condominiums in their city, and 81% were not in favor of additional apartment complexes and other rentals.

I don’t mean to pick on Ivins or Washington County here, as this is an issue in many, if not most, communities around the state.  And these attitudes are what often drive the actions of local elected leaders.  Not always, I have to say.  There are a number who, after they get into office and learn about what the issues really are and how it all works, are supportive of changing land use and housing policies and ordinances.

The problem is summed up well by Shirlayne Quayle, housing strategies and policy manager for St. George City:

“Educating the public is the biggest gap we face right now in moving forward,” Quayle said. “Even if we put all these strategies for moderate-income housing in place, if the public comes back and says ‘No, we don’t want that in our backyard,’ then elected officials have to deal with that.”

Or maybe state leaders will.  But I must say, from what I heard from a number of local officials in last fall’s growth workshops, and saw in the buildup to the legislative session, there is a pretty good attitude about dealing with this among those officials – not all of them, but many.  Keep it up!

SHEPHERDING NEW HOUSING

March 27, 2023

Recently I wrote about the announcement of a partnership between National APA and the National League of Cities on the issue of housing affordability.  Called the Housing Supply Accelerator, it is intended to be “a national campaign to advance and incentivize local approaches to land use, zoning and housing development and preservation.”

How will this campaign achieve those goals?  The joint APA/League statement says “the campaign will focus on improving efforts locally to address housing needs and housing production goals, including local government and private-sector capacity, identifying critical solutions, and encouraging systemic changes that enable local elected officials and developers to work together.”

Within just the last few days, the HSA steering committee was announced.  The committee will be co-chaired by the Presidents of National APA and the National League, and includes 21 members, including planning directors and mayors from around the country.  And, interestingly enough, there is a Utah representative among them!  Clearfield City Mayor Mark Shepherd is one of the appointees by the National League of Cities.

Now just what is the HSA going to be doing?  That is a good question.  The HSA press statement says, “This solutions-oriented campaign will provide model practices, ordinances and actionable resources to help local communities address their unique housing challenges. These efforts will be designed for immediate implementation by local leaders, planners and others working to combat the housing crisis.”

It will be interesting to see what comes of this, how useful it will be, and what role our own fair Utah mayor will play in the process.  Clearfield City is arguably a community in our great state that has done a lot in recent months to grow the supply of housing, much of it something other than single-family homes.  The city even drew praise from Utah House Speaker Brad Wilson, along with Ogden and South Jordan, at the beginning of the 2023 legislative session.

As for Clearfield, Wilson — singling out the shortage of affordable housing as one of several issues that will get lawmakers’ focus during the 2023 session — referenced construction of 1,700 new homes in the city in the last three years. “Mayor Shepherd, we applaud the work you have done and we thank you for serving as a strong example and an effective case study as we address this issue,” Wilson said.

Clearfield officials welcomed Wilson’s remarks but offered a larger number. Developers and city officials have “built, planned or approved 4,000 units” since 2018, reads a Clearfield press release, “the most in Davis County.”

Clearfield City Manager JJ Allen said efforts to spur growth, which include planned development around Clearfield Station, the city’s FrontRunner stop, have been “very intentional.” Adoption by city officials of a new form-based code in 2018 have helped spur expansion.

The 4,000 housing units include 3,200 apartments or condominiums, 500-plus townhomes and 250 single-family homes.

Substantial plans were also announced as far back as 2021 for development around the Clearfield Frontrunner station.  Mayor Shepherd should be well-situated to be a significant member of the HSA steering committee.

STOP IT!  JUST STOP IT!

March 20, 2023

I just read a new piece by someone who is quickly becoming one of my favorite columnists – Jerusalem Demsas, a staff writer at The Atlantic magazine.  Her column from about a year ago titled Community Input is Bad, Actually has become an iconic one for me, as it has been a beacon for why we need to rethink how we do public input for administrative land use review processes.  Be sure to see the presentation I’ll be doing on this topic at the ULUI Spring Conference in St. George on April 7.

In her latest piece, Demsas talks about how well-meaning environmental laws, particularly NEPA and several similar state environmental protection laws, have evolved to stymie change of any kind, even the normal processes of growth and change in our communities.  The column is titled The Great Defenders of the Status Quo, and she gives some discouraging examples, including in the world of land use and growth.

She tells the story, for example, of the moves in Minneapolis to eliminate single-family residential zoning, which was passed by the city council successfully.  But then:

Invoking Minnesota’s state environmental law, … the Audubon Chapter of Minneapolis, the Minnesota Citizens for the Protection of Migratory Birds, and Smart Growth Minneapolis sued to block the rezoning effort, claiming that the city hadn’t considered the environmental harms of higher-density living. Never mind the research showing that higher-density is actually beneficial for the environment. “If this ruling establishes precedent … anti-housing groups could very well challenge any comprehensive plan they don’t like on vaguely environmental grounds, forcing cities into years of litigation and zoning chaos,” a local scholar warned.

At the University of California, Berkeley recently, in an effort to address the severe shortage of student housing, school officials announced plans to build a new dormitory to house up to 1,100 students.  The University had been repeatedly blocked in its efforts to build new student housing over the years, and so it happened again.

… local homeowners and historic preservationists sued to block the development, citing, among other concerns, the potential environmental impact of “loud student parties.” A judge recently ruled in the homeowners’ favor, acknowledging the legitimacy of this concern. Is this what environmental protection means now? Shielding the ears of wealthy California homeowners who knowingly moved next to one of our nation’s preeminent universities?

To bolster her case, Demsas cites how the federal permitting dashboard shows the many renewable-energy and electricity-transmission projects that are being held up in the environmental approval process because of how federal environmental permitting processes now take so long and are frequently delayed by objections.  This for projects that are intended to reduce the nation’s reliance on fossil fuels and thereby improve the environment, which are now being held up over objections about the effect on – the environment!

In Utah, while we don’t have comprehensive state or local environmental laws that are employed in the attempts to stop new developments, the same kind of mindset is, I think, at work.  People fear change.  They don’t want things to be different.  This is demonstrated on a regular basis whenever new development projects are proposed in most communities.  The objections often come fast and furious in the public hearings and meetings that are held.  The meetings themselves rarely see any expressions of support for a new project.  At the apotheosis of some of these, citizens actually invoke referenda to overturn actions by their own elected officials they don’t like.

These review processes, intended to help improve proposals for new development, are, according to Demsas, often hijacked by –

Lawyers—the answer is always lawyers. … Listen, some of my best friends are lawyers. But development is supposed to flow through the democratic process, which elects mayors, city-council members, state legislators, and governors to decide what to build and where. Subordinating that to an adversarial legal process is by definition subordinating the voting public to the small group of people with the time, resources, and incentives to sue. (or, I would say, show up to public hearings and object to new housing developments and start referenda – ws)

Putting more abstract concerns for democracy aside, in practice, NEPA and related laws have evolved not to hold governments accountable for protecting the environment but to provide organized interests with yet another tool to stymie government action. And by action, I mean anything. (including new community development projects – ws)

There’s lots more to read in Demsas’ column, so take a look at it.  Let me just wrap up with what I think is the key issue here – change.  People don’t like change.  Yet if things don’t change, they don’t necessarily stay good or get better either.  Here’s what Demsas has to say about this:

…after sitting through countless community meetings and reading thousands of public comments, I’ve noticed that opposition to local projects doesn’t always come from an easily caricatured millionaire homeowner; typically, it’s from people of all sorts who are afraid of change. These status-quo defenders are often asking for the impossible: for someone to tell them exactly how their lives will look in the future. How will this affect my commute? What kinds of neighbors will live near me? And in their fear, they ask for caution, for further study, for more deliberation. They ask for time.

Caution and deliberation are good in moderation, but waiting cannot relieve this uncertainty; it merely changes its form. Doing can cause harm, but not doing won’t preserve the world in amber. Neighborhoods in desirable communities that don’t build more housing see skyrocketing prices and demographic shifts toward high-income, white, and older residents. And nations that don’t build the necessary renewable-energy infrastructure will be subject to the very environmental degradation that 20th-century activists tried so hard to prevent.

The unforeseen consequences of blocking change should weigh as heavily as the ones that come from allowing it. Those lost students, missing refugees, absent neighbors, and failed government projects may never intrude on our sight line or cause us frustration during our commutes, but they cost us all the same.

Amen.

WE’RE FORTUNATE, ACTUALLY!

March 15, 2023

Thought I’d give a few more examples of what’s happening in some state legislatures around the country on land use issues, partly to demonstrate how we are part of the zoning reform “wave,” but also to show that maybe we’re doing it a little better than other places.  The big thing that stands out to me is how much of what is going on in other places is pretty much a “top-down” approach – that is, the state is telling locals what they have to do and how to do it.  Here, while there has been some of that, it’s been much more of a state-local collaboration (I’m guessing Summit County and Park City might not agree with that – ☹).  Cam Diehl, the Utah League Executive Director, has said he’s getting calls from municipal league directors in other states asking how Utah has been able to get the collaborative effort from the legislature.  So it could be worse (and maybe it will get worse in future, heaven knows there are certainly plenty of proposals out there to do here what is happening in other states.)

Let me give a few examples.

In Washington state last week,

The Washington state House of Representatives … passed a bill that would legalize duplexes or fourplexes in almost every neighborhood of every city in Washington, potentially bringing an end to local zoning rules that limit large swaths of cities to only single-family homes. House Bill 1110 passed overwhelmingly on a bipartisan 75-21 vote.

The bill was amended on the House floor … (to) require cities with populations between 25,000 and 75,000 to allow duplexes in all residential areas. In bigger cities (those with more than 75,000 people) — or smaller suburbs of Seattle — all residential areas would have to allow fourplexes.

The proposal met resistance from local governments, who argued they should be able to set local zoning rules without state mandates. Some said they had already worked to upzone certain parts of their cities.

Supporters of the bill argued local control had failed to respond to the state’s housing crisis, in which few homes are for sale and prices are climbing.

In Connecticut, a bill would require communities to make an assessment of their affordable housing status, much like Utah communities are required to do, but then the state would stipulate for each community a “regional fair-share” number that must be achieved in order to avoid penalties.

Failure to submit a plan would result in default state zoning replacing a town’s local zoning authority. Any housing nonprofit or developer could sue a town for failing to submit or for a plan that did not create a “realistic opportunity.”

Frank DeFelice, chair of the Regional Planning Commission for the Lower Connecticut River Valley Council of Governments, which represents 17 of Connecticut’s municipalities, told the committee … “First, no definition has been provided for the term ‘realistic opportunity.’ Without a definition, even municipalities that have made the creation of affordable, attainable and workforce housing a priority can expect to engage in protracted and expensive litigation with interested parties.”

Second, he said, if the amount of housing stipulated by the bill is not constructed by the private sector – which the municipality has little control over – an actionable cause is created.

“Municipalities can be sued and forced to build housing at the expense of their taxpayers, most of whom are already housing burdened. It is unfair for the legislature to expose Connecticut’s municipalities to litigation for conditions over which they have no control,” he said.

WestCOG Executive Director Francis Pickering strongly opposed the controversial Fair Share bill, HB 6633. “The bill will force municipalities to pay for construction of housing that developers will not build on their own. Fair Share does not provide new revenue, so these costs will come on the backs of local taxpayers. A vote for Fair Share is a vote to raise property taxes,” Pickering said. He said a municipality that does not zone for the Fair Share Plan will be subject to default zoning.

In Rhode Island,

House Speaker Joe Shekarchi this week unveiled a legislative package he argues would help bolster much-needed housing development across the state without circumventing local control over zoning and planning.

The suite of legislative proposals includes several changes to how the development approval process currently works. The proposals include accelerating hearing procedures, standardizing permitting across all cities and towns, allowing owners of old mill buildings and hospitals to create housing by right and bypassing a middle-step in the appeal process.

“Nothing in this package forces communities to build more affordable housing and none of this legislation circumvents local decision-making authority,” Shekarchi told reporters during a briefing on the legislative package.

Shekarchi’s attempt to walk a line between sounding the alarm about the urgent need for more housing with the fears of local leaders about losing control reflects in part the fact he has already received pushback from some communities even before revealing his proposals.

Rhode Island League of Cities and Towns executive director Ernie Almonte rose during Shekarchi’s press conference and said municipal leaders agreed “conceptually” with the ideas being unveiled. But Almonte stopped short of fully endorsing the bills.

“While we have not had the opportunity to review the details of the bills presented today, our members encourage housing construction and rehabilitation, and removing barriers to housing, such as a lack of infrastructure,” Almonte said in a statement. “We look forward to continuing to work with the Speaker and members of the General Assembly to address additional details.”

This is just a sampling of what’s going on around the country.  After reading about all this, I’m thinking we’ve got it pretty good here (relatively!)  I think credit for our good fortune goes to how well the Land Use Task Force has gotten to working again (though it’s still not perfect), the back-and-forth that has taken place in meetings of the Commission on Housing Affordability and the Unified Economic Opportunity Commission, and the strenuous efforts of Cam Diehl and his co-conspirators and staff at the Utah League.  As I’ve noted in some past blog postings, states in which the top-down approach dominates, the ultimate achievement of the goals of affordability and community resilience just don’t seem to happen because the implementers (the local governing bodies) become footdraggers (see California, Oregon, a few others).

Apparently that message got through in a state where legislatively-mandated local zoning was on the table.  In the previous blog post, I cited Arizona as an example.  In a vote in the Arizona State Senate Monday, SB1117 failed to pass by a 9-20 vote.

Many cities publicly opposed SB 1117 because they believed the legislation would have taken away their ability to make important zoning decisions. Critics of the bill further argued that it offered no guarantees for making housing units more affordable to the average resident. Kaiser, a Republican representing District 2, said Monday he’ll continue working on finding solutions to fix the housing crisis.

Just as a reminder, there are several sessions coming up to run through what happened on land use in Utah’s legislative session this year.

April 5 – APA Utah/Utah League, North Salt Lake  https://www.ulct.org/events/spring-training

April 7 – Utah Land Use Institute, St. George  https://www.eventbrite.com/e/utah-land-use-institute-spring-conference-tickets-548001305657

May 12 – APA Utah, Vernal https://apautah.org/events/apa-utah-spring-2023-conference/

And because of the volume and detail of land use bills in the session this year (35 bills introduced, 19 passed), I did not follow other planning-related legislation like transportation and water infrastructure as closely, but the gang at WFRC did and they have an excellent summary of those measures, see it here https://docs.google.com/document/d/1IZ0daUr5CT02aCUX952TczBmyxRxW43Jas8049WHC-4/edit

WE ARE NOT ALONE!

March 7, 2023

With the intense concentration on our own legislative maneuvering on land use issues, I thought it might be helpful to see how this compares to what is happening in other states.  It’s an understatement to say that land use issues are being considered and debated in other states – just about every state around the country seems to have something happening.  Much of this flurry of activity is rooted in the nationwide discussion of late about zoning reform, which usually seems to mean the watering down or elimination of exclusive single-family zoning.  In addition to National APA and the National League of Cities partnering on this issue, others are also addressing it, like the National Association of Counties, the National Association of Home Builders, the National Association of Realtors, Enterprise Community Partners, and many others.  National APA, on its Knowledge Center blog, posted this in January about what was expected on zoning reform in a number of states – interestingly, they did not include Utah.

Here’s a sampling of what’s going on in just a couple of the states around us (I’m not including California – that is a story all its own on what’s going on there and how things are being addressed):

From Colorado:

… (legislators) will bring bills that could reshape housing policy across the state by dangling incentives to encourage transit-oriented development, making it easier to build accessory dwelling units and removing other barriers  imposed by local governments, such as minimum parking requirements.

“This is far beyond just a local problem,” Gov. Jared Polis said in his State of the State address last month in which he used the word “housing” more than three dozen times. “We have to break down government barriers, expand private property rights and reduce regulations to actually construct more housing to provide housing options at a lower cost so that all Coloradans can thrive.”

Colorado has historically been a state where such land use and zoning decisions are determined at the local level, so city and county officials are nervous about what may be coming from the legislature.

“This is going to be major,” said Claire Levy, a Boulder County Commissioner. “It’s a major shift in policy for the state of Colorado.”

Wheat Ridge Mayor Bud Starker said he agrees with the governor’s goal of addressing housing needs but is hoping there’s room for discussion around the methods.  “I don’t think it’s necessary for the state to start dictating land use regulations in order to achieve a more affordable Colorado.”

From Arizona:

The Arizona Senate Commerce Committee passed an amended bill earlier this month that would supersede some municipal authority over zoning in order to address the statewide housing shortage. But, it faces opposition from city and local leaders across the state.

Senate Bill 1117, sponsored by Sen. Steve Kaiser, R-Phoenix, … stipulates that lots smaller than 4,000 square feet be made available for the development of multifamily projects such as duplexes, triplexes and fourplexes, according to Kaiser.

The bill also requires an expedited approval process for new developments and designates commercial and mixed-use zoning to accommodate high-density housing.

City councils and mayors, among other critics, say that if the bill passes, voter-approved general plans could be ignored by developers. “If this passes, it would really render the general plan moot,” said Tempe Mayor Corey Woods. “What voters believed to be the guiding document for development heights and density would no longer hold true.”

Gilbert Mayor Brigette Peterson wrote in a recent twitter message:

Last week, I testified at the Arizona Senate Commerce Committee in respectful opposition to SB1117. This bill would remove the public from the zoning/planning process & grant developers complete authority of development decisions in our town.

Many state legislatures seem to be taking a much more “top-down” approach to changing land use processes and rules in local communities.  That’s rather different from what has been happening here in Utah, where we have the Land Use Task Force, the Commission on Housing Affordability, the Uniform Economic Opportunity Commission, and the Utah League of Cities and Towns working very proactively with all sides in the development process to address the challenges to growth and housing affordability.

I want to spend a few minutes on what is going on in Montana with their legislative effort on land use processes.  While a variety of bills have been introduced in the Montana legislature on land use issues (much as we have here each year), the major effort that will likely supersede them all is Senate Bill 382.

Senate Bill 382 would require additional planning by local governments, rework how and when residents can participate in planning decisions and, supporters say, make it easier to build the housing necessary to accommodate rapid population growth.

Justification for SB382 to override all those other ad-hoc land use bills is given in the way the bill came together.

The bill’s language … has been negotiated over a period of years through a workgroup that brought together city and county governments, land use planners, surveyors, the Montana Building Industry Association and the Montana Association of Realtors.

Sounds a lot like our Land Use Task Force.  Notably, the bill was written by Kelly Lynch, executive director of the Montana League of Cities and Towns, who has a Masters Degree in Urban Planning and has worked in Community Development in the past.  In many ways, provisions in the bill sound like what has happened here in Utah.

The 48-page SB 382 would require city and county governments in the state’s most-populous counties to expand their proactive planning efforts, producing forward-looking land use plans that inventory existing housing, analyze projected population growth and determine specifically where they’ll allow the construction of enough homes to house future residents.

Those local governments would be required to take specific steps to encourage more housing construction, selecting at least five development-boosting strategies from a menu of 15 options. Those options, many of which parallel proposals included in the ad hoc zoning reform bills, include steps like reducing parking requirements, reducing minimum lot sizes and zoning for higher density near universities and public transit stations.

But in another way, the bill goes beyond where we have ventured so far in our state – in the separation of the processes for legislative and administrative land use actions.  The Montana bill does this:

The bill would also make an explicit effort to shift public participation in land use planning earlier in the process, inviting more public input as growth plans are being written and limiting public comment once specific projects are proposed.

While not described as such by the bill’s supporters, that change would in effect reduce the opportunity residents have to rally not-in-my-backyard-style opposition to subdivisions or buildings when a developer’s proposal meshes with already adopted zoning.

Currently, many proposed developments are subject to votes by elected city and county officials in public meetings regardless of whether they conform with adopted land use goals, a dynamic Lynch said injects unnecessary uncertainty into the development process. Under the process laid out in SB 382, in contrast, proposed projects would generally be approved administratively by a city or county planning director if they’re in “substantial compliance” with adopted regulations and don’t raise unanticipated issues.

SB382 just passed a few days ago in the Montana Senate by a 44-6 vote. If Montana can do this, certainly we can at least take a closer look as well.

A lot of credit for what took place in this year’s Utah legislative session, at least on the major land use bills that had been agreed to by the Land Use Task Force, was holding the integrity of the process intact.  Efforts were made to amend other provisions into those bills late in the session, sometimes at the behest of powerful interests.  But by and large, the LUTF participants, both from local government and from the development community, held firm that this not be allowed.  The benefit is the restoring of faith in the LUTF process, which many of you know has not been that well-regarded in the last couple of years.  So kudos to the behind-the-scenes negotiators for their efforts.

Now of course, no one really seems to be able to control what other bills on land use get introduced, and there are some real humdingers that come forward.  But by and large, most of those bills fail when the land use actors make the issues known.  Not always, however, as evidenced by a few of the bills that made it through this year (and pretty much do every year).

But apparently this happens in other states as well.  I guess it just seems to be the nature of the legislative political process.  So, there’s plenty we can learn from other states, and things they can learn from us (and apparently are, as League ED Cameron Diehl told me he has been on the phone with a variety of other states’ League Directors to explain what is being done here).

It will be most interesting to see what the next year brings.

LAND USE BILLS SUMMARY

March 6, 2023

Here’s a summary of the land use bills we were following in this year’s session.  There were a lot, actually, when you look at the bills that were both passed and those that were not.  I’ve included a brief summary of what each passed bill addresses, but not given the details.  We’ll save that for the post-session briefings.  Right now we have three briefing sessions scheduled:

April 5 – joint APA Utah/Utah League sponsored in North Salt Lake (details coming)

April 7 – Utah Land Use Institute first-ever SPRING CONFERENCE in St. George

May 12 – APA Utah SPRING CONFERENCE in Vernal

At the request of several to get a jump on all the new provisions, I may be scheduling a small bring-your-own-lunch roundtable, probably next week, to just talk and answer questions about the bills.  Let me know if you’re interested in this.

There are other bills and appropriations that happened in the legislature that affect local planning that were well-tracked by others.  Notably, transportation funding, which is well-summarised by the Wasatch Front Regional Council. https://wfrc.org/public-involvement/governmental-affairs-2/

Here’s my bills summary.  You’ll notice at the end of some of the summaries I’ve noted the number of new lines the bill adds to LUDMA.  For the last couple of years I’ve kind of been harping on the fact that we are making LUDMA more and more complicated and lengthy.  This I think is a disservice because it’s becoming more difficult and incomprehensible to the average planning commissioner, local elected official and even planners.  It’s getting more and more so that we need land use attorneys to help us figure out what we should be doing.  For the many small communities out there, this becomes problematic.  This year, some 388 lines of code were added to LUDMA overall (over 400 to the county LUDMA).  That’s a lot!  New rules to follow, new provisions to be adopted into local codes, and so on.  We need to think about what we’re doing here.

BILLS PASSED

HB32 – Prove Canyon Resource Management Plan – authorizes the affected counties to prepare and adopt a recreational resources management plan for Provo Canyon; stipulates that the state Public Lands Policy Coordinating Office shall assist in the funding and preparation of the plan at the request of the counties.

HB169 – Urban Farming Assessment Act Amendments – allows counties to determine activities allowed for urban farming.

HB206 – Airport Land Use Amendments – requires cities and counties with land area within 5,000 ft of an airport runway to adopt airport zoning and land use regulations by December 31, 2024; lots of new provisions. 3 new lines in LUDMA, a whole new section in 72-10-400 Airport Zoning Act

HB224 – Outdoor Recreation Initiative – creates new initiative for planning, coordination, and funding of outdoor recreation infrastructure between state and local governments

HB265 – Sentinel Landscape Amendments – requires cities and counties within 5,000 ft of military facilities to prepare and adopt a compatible use plan in coordination with state department of Veteran and military affairs; requires those entities to submit land use applications (not, however, individual building permit applications) within those areas to the state DVMA for review and approval within 90 days.  34 new lines in LUDMA.

HB364 – Housing Affordability Amendments – makes a number of changes to the reporting provisions for MIHPs; makes a number of changes to provisions for state low-income housing tax credits. 86 new lines in LUDMA.

HB406 – LUDMA Modifications – modifies some provisions of the annexation code, particularly the definition of rural real property; clarifies applicability of “moratorium” provisions; clarifies use of development agreements; establishes uniform statewide standards for residential roadways;  limits use of completion warranties and assurances for landscaping to only that on public land or to be turned over to the public. 85 new lines in LUDMA

HB408 – Mobile Business Licensing Amendments – establishes uniform standards for licensing and regulation of all types of mobile businesses, including food trucks and food vendor carts.

SB20 – MIDA Amendments – modifies provisions for MIDA.

SB27 – Transportation Revisions – requires cities and counties to submit newly adopted or amended general plans to their AOG; makes changes to the provisions for transit station area plans.  11 new lines in LUDMA

SB43 – Public Notice Requirements – creates three new standardized classes of requirements for notifications of public meetings/documents/actions; specifies the class of notification required for different land use actions. 7 fewer lines in LUDMA

SB76 – Water Amendments – requires cities and counties to consult with the state Division of Water Resources in preparing water element of the general plan; requires counties to consult additionally with other entities in preparation of the element; requires a number of other water resource and conservation studies by state agencies and water providers.  3 new lines in cities LUDMA; 17 new lines in county LUDMA

SB84 – HTRZ Amendments – makes a number of changes to provisions for HTRZs; provides certain vested development rights to a property owner at Kimball Junction in Summit County.

SB113 – Local Agricultural Amendments – establishes definitions of “animal enterprise” and “working animals,” and forbids local government prohibition of such; does not apply to an ordinance that is a land use regulation (for municipalities only).

SB158 – Local Government Water Amendments – modifies the requirements and standards for a local government to determine the size of exaction for water rights based on state adopted standards or on five years of historic water use data; authorizes smaller cities and counties to adopt drinking water source protection zones.  18 new lines in LUDMA

SB174 – Local Land Use and Development Revisions – modifies the prioritization and penalties for reporting on Moderate Income Housing Plan compliance, progress; modifies provisions for Internal Accessory Dwelling Units; stipulates a uniform process for review and approval of subdivision plats, and effective date; makes some modifications to lot line adjustment process.  155 new lines in LUDMA.

SB199 – Local Land Use Amendments – stipulates that any local land use law passed by unanimous vote of the local legislative body may not be subject to referendum; leaves provisions regarding transit station areas at a two-thirds vote threshold.

SB271 – Home Ownership Requirements – prohibits a county or municipal legislative body from adopting or enforcing a land use regulation that regulates co-owned homes differently from other residential units.

SB289 – Point of the Mountain State Land Authority Amendments – among other provisions specific to the PMSLA, specifies that local governments do not have zoning authority with respect to the point of the mountain state land.

SB260 – Transportation Funding Requirements – would allow (but not require) any county to impose the .20% local option sales tax, if and when the timing makes sense for their communities, with distribution of revenues dependent upon the class of county and presence of transit. SB260 would (1) eliminate the imposition deadline, (2) allow counties with transit service to impose the .20% to divide the funds between transit, cities, and counties, (3) allow counties without transit service to impose the .20% and divide the funds between cities and counties for transportation purposes.

BILLS NOT PASSED

HB196 – Eminent Domain Revisions

HB233 – County Land Use Amendments

HB276 – Water Supply Amendments

HB277 – Homeowners Association Revisions

HB291 – Short Term Rental Amendments (this bill was subject of a working group through the interim, the promise is this will be back in some form)

HB331 – Microenterprise Home Kitchen Amendments

HB446 – Housing and Transit Reinvestment Zone Modifications (provisions of this bill were passed as part of SB84)

HB496 – Short-term Rental Enforcement Revisions

HB527 – Mining Operations Amendments

HB564 – Limited-use Infrastructure District Amendments

HB565 – Municipal Land Use Amendments

HB567 – County Amendments

SB166 – Education Entity Amendments

SB181 – Campaign Sign Amendments

SB295 – Dedicated Infrastructure District Act (this bill was much discussed by the LUTF, but came out so late in the session there was no chance to negotiate it.  It has strong support from leadership and will be back in some form)

SB298 – Local District Requirements

REFLECTIONS ON THE LEGISLATIVE SESSION

March 4, 2023

The legislative session ended early last night, at about 9:40 pm.  I can’t remember the last time it didn’t go until midnight of the last day – kind of amazing when you consider the number of bills that had been filed and were under consideration.  A lot of bills didn’t pass, though, which may be explained by the early adjournment.

With regard to the land use bills we’ve been following, there really isn’t much more to update on beyond what has already been covered in all the previous posts from the session.  Coming up in the next couple of days, I will list the bills that were passed.  I’ll also describe briefly the topics that were addressed in each bill, as some (most notably the LUTF bills) covered multiple issues.  As usual, there will be post-session briefings about what happened in the legislative session, and what local governments and planners need to do to come into compliance with the new code sections.  A joint session with APA Utah and the ULCT is being planned for noon on April 5, more details to come.  We will also be doing a legislative update at the APA Spring Conference in Vernal on May 12.  I have been contacted by some planners and former colleagues asking to get info on the legislative bills ASAP, so I may try to set up a small roundtable session in the next week or so for those who are interested to bring lunch, sit down, and go over the bills.  Let me know if you’re interested in that.

This has been a most unusual legislative session regarding land use issues, viewed from my years of experience.  Every year seems to be unique in its own way, but this year was particularly different.  I think in large measure this was because of the heightened attention given to land use matters in relation to the housing affordability crisis of recent years, and because of the nationwide attention being paid to zoning reform and other land use issues.  When the National League of Cities and National APA team up together to launch a program to reform land use, and other organizations like the National Association of Realtors and the National Home Builders Association call it out, things are bound to get interesting at the local legislative level.  Some good new policy and practices were adopted, though I must say the LUDMA is getting very long and very complex – it’s going to take specialized land use attorneys to oversee understanding and compliance if we keep going down this road.

Still, there were some actions taken or attempted in this year’s legislative session that to me just seemed to go beyond good statewide policy to address growth and land use issues.  Most notable were the provisions that were passed regarding a specific development in Summit County, the restriction on regulation of fractional homeownerships, and the attempted passage of special provisions targeted for one well-off homeowner and the owner of a potential quarry.  These actions really went farther than most anything I can recall from all the years I’ve been involved with the legislature (since about 1990!).  I would express more explicitly my thoughts, but I think I’ll just borrow the closing lines from SL Tribute columnist Robert Gehrke, who in his updated column on SB271, said this:

And, of course, the eagerness (of some legislators) to smash local governments grows even more intense when they are doing it for someone with enormous amounts of money and access to high-priced lobbyists.

Recently, I wrote about how the Legislature slipped language into a bill green-lighting a highly controversial mixed-use development near Kimball Junction for the developer Dakota Pacific — ignoring the concerns raised by county officials and ongoing efforts to try to resolve the issues. There was also legislation pending … that would give the owner of a proposed gravel pit in Parley’s Canyon the right to start ripping up the mountainside, despite the strenuous objections from local and county officials. And this week, I wrote about a bill that would give developers the unprecedented power to issue bonds to finance projects, levy taxes and even condemn property through eminent domain — essentially act like their own little, unelected, unaccountable government.

None of this reflects how our system is supposed to work. In our system of government, people are supposed to be treated the same and play by the same rules — even if you happen to be the richest man in the state. Fortunately, this time, the system worked.

Mostly it worked, I’d say.  Many of the examples given showed up as late-session bills and got very little discussion and negotiation.  Some passed anyway, some didn’t.  With this door now open wider, what will happen in the next session?

OH THE GAMES PEOPLE PLAY!

March 3, 2023

The 2023 general session of the Utah State Legislature ends tonight at midnight, and as usually happens, there are still a lot of bills left to be dealt with and things to consider.  And crazy things happen in these last hours as well. Just read on.

Two stories in today’s Trib deal with a couple of the more controversial – and non-consensus – bills on housing and land use issues.

In the February 24 post, I described a provision that had been included in HB406, one of the major land use bills, that had not been discussed or agreed to by the Land Use Task Force.  It was a provision for what was called “local non-historic lots.”  The language was eventually removed in subsequent versions of the bill because of the reminder that this bill should honor the process that created its main provisions, but I wondered aloud what anecdotal incident had prompted it.  Now we know.  A Robert Gehrke piece in today’s Trib describes a situation where a proposal to build a new very large estate in Park City eventually resulted in this legislative proposal.  Gehrke wrote,

Toward the end of the legislative session, a few seemingly innocuous sentences were slipped into a bill that would have essentially given Prince carte blanche to demolish the two houses and build his new home as large as he wants and as tall as he wants without the city’s approval. … As of right now, the bill green-lighting Prince’s home has passed the House and is waiting to be heard in the Senate — although the provision may be moved to another piece of legislation. And officials in Park City are fuming.

The provision was indeed removed from the bill, and HB406 – LUDMA Modifications was substituted and passed by the Senate this morning – without the offending provision (other changes in the substitute bill did not result in any major alterations to the original version).  Where the “local non-historic lots” provision will show up – well, read on.

The second Trib story has to do with SB271 – Home Ownership Requirements.  See the February 21 and 22 posts for the initial descriptions of this bill.  Today this bill was placed on the House 3^rd Reading calendar, and there is a substitute version of the bill out now, likely to be adopted when the bill comes up for a vote by the House.  And as if the bill isn’t controversial enough already (see the Trib story), the substitute bill now also contains – can you guess? – the “local non-historic lots” provision!  I have to say, I cannot recall a legislative session where such games have been played with regard to land use provisions.  I’m sure there will be substantial opposition to the passage of this bill because of all the things in it – but whether the opposition can be mustered quickly enough as things move so rapidly on the last day – well, we shall see.

TWO DAYS TO GO

March 2, 2023

Two days left in the session, and things are moving along.  Most of the “bad” bills don’t seem to be making any headway, so that’s a good thing.

Story in this morning’s DesNews about the major land use bills, and the housing affordability funding that’s moving through (I haven’t written much about this – others are following that closely).  Katie McKellar, the story’s author, points out:

There have been some cases of upset local officials — take what happened with Summit County — a state lawmaker accused the county of violating state law for not adopting a housing and transit reinvestment zone at Kimball Junction. Also, the Utah League of Cities and Towns opposed a late-filed bill that would allow developers to create their own districts to finance infrastructure projects. For the most part, however, local leaders have supported efforts in a trio of what legislators have called “consensus bills” that are nearing final legislative approval before the session ends Friday at midnight.

The bills seek to help streamline and standardize regulations to help make development more “predictable” while balancing city needs. The legislation stemmed from months of work in the governor’s Unified Economic Opportunity Commission, which tasked a subcommittee with finding affordable housing solutions statewide.

Those are the major land use bills we’ve been following.  Here’s a summary of where they are at.

SB174 – Local Land Use and Development Revisions – as anticipated, the bill was substituted yesterday and then passed by the House.  The Senate concurred in the revisions this morning, so this bill is now done.  Nothing really major in the new substitute, it did rework some of the language in the subdivision process sections.  We’ll cover all of what these bills have done in our upcoming legislative recap sessions.

HB364 – Housing Affordability Amendments – I mentioned yesterday that the bill had been passed by the Senate but was then recalled for reconsideration.  As anticipated, more amendments were apparently needed.  The 6^th substitute of the bill was passed by the Senate yesterday afternoon, and concurred to by the House this morning.  The substitute again makes no major changes beyond what we have already described, mostly just rewording and some adjustments.

HB406 – LUDMA Modifications – this bill is still in the Senate Rules committee.  A series of substitute bills have been released, none of which made any real major modifications, mostly just some moderate changes.  There is now a 5^th substitute awaiting action when this bill gets on the Senate floor.

Other bills of interest:

SB199 – Local Land Use Amendments – this is the land use referenda bill described earlier.  Yesterday on the House floor an amendment was passed to the bill which changed the local governing body vote standard from two-thirds to unanimous.  The bill was then passed by the House, and concurred to by the Senate this morning.  This bill had some significant pushback.

That’s one bill (Sen.)Fillmore (not the bill’s sponsor) said he didn’t support because he thought it was “unconstitutional and tilted too far away from public involvement, where I’m trying to strike a balance.”

There’s lots more in the DesNews story on perspectives from all sides on what’s happening this year on housing and land use.  Give it a read, it’s worth it.

Upcoming in a future post, I’ll tell you what’s happening right now in some other states on these same issues.  It’s quite eye-opening when you put it in the context of what’s been happening here.

SIFTING

March 1, 2023

We are now in the final throes of the legislative session, as there are now no more committee meetings, and the two chambers can only consider bills from the other chamber, so any bills that move forward from here on out must have passed in at least its originating chamber.

What that means is that SB295 Dedicated Infrastructure District Act is now dead and done.  That’s because it was on the Senate 2^nd Reading calendar last night, but the Senate never got around to voting on it.  Therefore, it has not passed in the Senate and cannot advance (unless there’s an extraordinary motion to suspend the rules for the bill and move it forward, which could happen.  Not likely, but possible.)

The other bills that are still hanging fire at this point go through what used to be called “sifting” (don’t know if they still call it that) – where all bills that are still alive are returned to each chambers’ Rules Committee, and the committee then puts out a group of bills to be considered by the full chamber for the next floor session.

HB364 – Housing Affordability Amendments – was in the group released for this morning’s Senate floor session.  The bill was substituted to a 4^th substitute version and then passed by the Senate.  However, shortly before the Senate adjourned for lunch, the bill was recalled for reconsideration and is back on the 2^nd Reading calendar.  Not sure why that’s happened, maybe because an amendment needs to be made.  We’ll find out in the Senate’s afternoon session.  The main change in the 4^th substitute is to eliminate the Housing Support Grant Program.

Other bills we are following that are still alive and watching to see when they might be released from Rules to be voted on are:

HB406 – LUDMA Modifications

HB408 – Mobile Business Licensing Amendments

SB158 – Water Exactions Amendment

SB174 – Local Land Use and Development Revisions – a 2^nd substitute for this bill is released, which will likely be adopted when it comes up for a vote on the House floor.  The substitute makes some of the lot line adjustment changes mentioned in previous emails, and some more changes in the MIHP provisions and in the subdivision process (nothing really new, all has been discussed).

SB181 – Campaign Sign Amendments

SB199 – Local Land Use Amendments

SB271 – Home Ownership Requirements

SB289 – Point of the Mountain State Land Authority Amendments

While HB291 – Short Term Rental Amendments could be on this list as well, the bill was held in Senate committee yesterday with the understanding that it would be worked on over the coming year interim.

There are other bills I did not mentioned because they were either held early in the process or failed in committee or floor votes and are dead – but in reality it is possible they could be resurrected – not likely, but possible.  I won’t mention them again unless they do become zombies!

FLURRIES IN THE FORECAST

February 28, 2023

The flurry is on at the Capitol as time winds down on the session.  Several new press items on bills we are following.

On SB295 – Dedicated Infrastructure District Act, a story in the DesNews and an opinion piece by Robert Gehrke.

The bill would allow for the creation of a “dedicated infrastructure district,” which would allow a landowner, if 100% of the property owners in an area sign on, to file a petition with the lieutenant governor to create the district. To be eligible, the project must require at least $2 million in infrastructure investments (such as roads, water lines, electricity or other improvements) and have at least 100 housing units, at least 50,000 or more square feet of non-residential development, or a minimum estimated appraised valuation upon completion of at least $50 million. If formed, the district would be a political subdivision of the state and therefore be able to access cheaper financing.

“What it does is allows access to capital that is less expensive, thereby making it so that the product that is provided, be it housing or otherwise, can be less expensive than it otherwise would be.” said Wade Budge, an attorney with the firm Snell & Wilmer, who joined McCay for his presentation of the bill.

Cameron Diehl, executive director of the Utah League of Cities and Towns, … “It really does come down to this fundamental question of do you as a state want to allow the creation of a political subdivision without elected officials that will have control over property tax?”

In his opinion piece, Gehrke says,

… the bill would let a developer or group of developers become their own government, issuing bonds to pay for infrastructure projects — like sewer lines or roads — and then levying taxes on residents to pay them off. The developers like it, obviously, because it would be far, far cheaper way to finance their projects than getting more traditional financing from a bank.

…SB295 is still a major change and an unprecedented delegation of power that has been rolled out on a Friday and rushed through the Legislature at breakneck speed. Why? I suppose the answer to that is because it’s something developers want.

The bill is currently awaiting a 2^nd Reading vote by the Senate.  It must still pass the Senate, and then pass in the House.

On HB408 – Mobile Business Licensing Amendments, a story in the St. George News.

If the bill passes, mobile businesses – such as a mobile barber shop, clothing store or book vendor for example – will only be required to get a business license in their municipality of county of origin and only be subject to inspections and regulations related to the product or service they offer… . In addition to providing mobile businesses with business license reciprocity from place to place in the state, the bill clarifies previous language that put food trucks, ice cream trucks, food carts and “enclosed mobile businesses” under the same umbrella by making them their own, independent definitions in state law.

In the past, bills like HB 408 have drawn opposition from municipal and county officials as they remove a part of a jurisdiction’s ability to regulate business or some other matter locally. However, no opposition has surfaced against HB 408.

HB408 has passed the House and is currently on the Senate 2^nd Reading Calendar.

And finally, on SB271 – Home Ownership Requirements, a story in the Park Record.

Park City officials and staff members spent months crafting an ordinance that limits “fractional ownership” homes to certain zoning districts but a bill pending at the Utah Legislature could wipe out that effort. Senate Bill 271 would prohibit a county or municipal legislative body from enacting or enforcing a land use regulation that regulates co-owned homes differently from other residential units or punishing anyone for owning or using the homes.

“Resort communities in Utah and across the country are looking to Park City on this issue as we led out as the first to craft a community-based ordinance,” Park City spokesperson Clayton Scrivner said.

Pacaso, a San Francisco-based company that has 10 fractional ownership homes in Park City, applauded the state legislation. “Pacaso strongly supports property rights and the Utah Senate Bill 271, which empowers people to co-own homes without interference from local government,” company spokesperson Chrissy Bruchey said in a written statement. “We believe that governments should not infringe on the basic right of individuals, friends, or families to acquire, own, and use a home together.”

Summit County Council Chair Roger Armstrong called the bill “a direct assault on local control” by the Legislature… .

“A bill that restricts the ability to regulate fractional ownership and bills that restrict the ability to regulate nightly rentals are examples of being completely out of touch and legislating exactly the opposite of facilitating housing in communities,” Armstrong also said.

SB271 was passed by the Senate yesterday and sent to the House.

Four days left, more will surely follow.

MONDAY, MONDAY…

February 27, 2023

The last week of the legislative session has started off with a bang!  Plenty to catch up on, so here goes.

First, let me apologize for sending out an update so late in the day.  I had some other commitments today that kept me tied up until just now.

HB406 – LUDMA Modifications

There is now a 4th Substitute version out of this bill.  It has not been adopted yet, but likely will be when it comes up for a vote on Senate 2^nd Reading.  The main difference in this version from the currently adopted version is that all the language regarding a “local non-historic lot” has been removed.  This was done after League representatives prevailed in arguing to not have language in this Land Use Task Force bill that had not been discussed or agreed to by the LUTF members.  The sponsor has, however, indicated that this language will likely be inserted into another bill (much like the language was inserted at the last moment into SB84!).  I still haven’t any idea what this is all about and why it’s apparently so urgent to have this dealt with legislatively.  Anyone know?

Also, with regard to the question raised by Todd Draper last week about the language in the bill about lot line adjustments, here’s a response from one of our land use legal eagles:

In my mind the biggest issue with lot line adjustments is not being addressed:

10-9a-608(5)(ii) a document of conveyance of title reflecting the approved change shall be recorded in the office of the county recorder with an amended plat.

This section identifies a simplified process for a lot line adjustment, but then wipes it away with the last three (3) words. If a plat is required, typically communities treat it like a subdivision and require all the same steps for a subdivision.

Here’s another:

Does it even matter what the code says?

For example, note this language adopted in 2019:

17-27a-609.  Land use authority approval of vacation or amendment of plat — Recording the amended plat. (same language in city code as well)

(1)

The land use authority may approve the vacation or amendment of a plat by signing an amended plat showing the vacation or amendment if the land use authority finds that: (a) there is good cause for the vacation or amendment; and   (b) no public street or county utility easement has been vacated or amended

what this means is that the land use authority may not allow a plat amendment if there is any change to a public utility easement or street.  Well, pretty much every recent subdivision plat includes a ten foot wide public utility easement around the boundaries of each lot.  So since every lot includes a public utility easement, no changes to any of those lot lines are allowed in a subdivision amendment.  Period.  State law.

Seems like we have some issues with the language for lot line adjustments in LUDMA.  Could a planning commissioner or city planner read this and figure it out?  Could many of our city attorneys?  Hmmmm.

SB174 – Local Land Use and Development Revisions

The other major LUTF bill which was finally substituted last Friday, is awaiting introduction onto the House floor.  Discussion about this bill in the League’s Legislative Policy Committee today indicates that while not everything in this bill is great, it was the product of a lot of hammering back and forth, and that no one really got everything they wanted with this bill.  It is being endorsed by the League and will likely pass, with all its provisions for subdivision processing, as well as other issues.

SB295 – Dedicated Infrastructure District Act

Remember PIDs? (Public Infrastructure Districts, from last year’s legislative session – video on PIDs from 2022 Land Use Conference) For much of the interim last year, the LUTF discussed the idea from the Property Rights Coalition of allowing for an infrastructure improvement district that would not need local government improvement or representation, but would have many of the same powers.  It would allow private developers to finance their own development improvements with the lower public interest rates and regulatory exemptions.  Local government reps were willing to talk about the concept, but wanted to see the details of how they would work.  Well, the bill finally came out Friday, and the details are concerning to local governments.  The League has quickly taken a position in opposition to the bill because of the lateness in coming out and not giving time to work out better details.  Here’s what the League sent out this evening:

…contact your senators immediately and urge them to vote against SB 295 for these reasons:

• SB 295 authorizes the creation of new political subdivisions called Dedicated Infrastructure Districts (DIDs).

• DIDs are created without municipal/county approval.

• SB 295 gives taxing authority to an unelected board:

  • The District is governed by a board of property owners who are not initially elected, and if certain circumstances are met, do not need to live in the district.
  • The districts share local government power, including the power to issue bonds and the power to impose property taxes.

• If infrastructure is not turned over to a municipality, the DID may charge fees, assessment, and taxes to pay for the operation and maintenance of the infrastructure.

The bill was passed out favorably by Senate committee today and is on the Senate 2^nd Reading calendar.

HB265 – Sentinel Landscape Amendments

Prior to passage by the Senate last Thursday, an amendment was approved with regard to the requirement for all land use applications within 5,000 feet of a military facility to be submitted to a state agency for review and sign off.  The amendment exempts out individual building permits from having to be submitted.  The bill with the amendment was concurred to by the House today, so the bill is finalized.  I still have to say, I’m rather surprised that local governments are okay with having to submit land use applications to a state agency for review and sign off before they can move ahead.  Wow!

HB527 – Mining Operation Amendments

This bill is not moving, so it may not make it through this session.

SB271 – Home Ownership Requirements

The bill was amended this afternoon to include language that says that nothing in the bill is intended to limit a local government’s ability to regulate ADUs, IADUs, or STRs.  The bill was passed by the Senate this afternoon and is on its way to the House.

A couple of no-hope bills were newly released today:

HB565 – Municipal Land Use Amendments – which would give applicants the ability to bring legal action against a municipality in a rip-cord action that is not a land use appeal. ???  I’m not getting this one, and neither do some of the legal folks I’ve asked about on this.  The sponsor really needs to talk to someone involved in land use.

HB567 – County Amendments – same sponsor as the above bill, this bill would prohibit counties from requiring conditional use permits for mutual water company water facilities.  Well, I guess they could just prohibit them outright.  Not sure of the purpose and effect of this bill either.

As I said, these bills are coming out so late in the session that they likely will not pass.

Okay, surely there will be more fund to come in the next few days.

FIVE DAYS TO GO – WHAT MANNER OF THINGS WILL BE WROUGHT?

February 25, 2023

Next weekend, everyone associated with the state legislature will be sleeping in late, headed to Hawaii or Mexico, or in a catatonic state.  It’ll all be over.  But, as League Exec Director Cameron Diehl said in last night’s legislative recap email, the last 5 working days of the legislative session are like a month!  So there’s lots to watch for and update on, even over this weekend.  Here are a few things I’ve picked up since Friday about the bills we’re following.

First, this from our fellow planner Todd Draper at Draper City (really?  How appropriate!).  Todd took a close look at the subdivision provisions in the substitute bill for HB406 – LUDMA Modifications https://le.utah.gov/~2023/bills/static/HB0406.html, specifically having to do with lot line adjustments.  Todd co-positioned the new language in the bill with the language that remains as is in LUDMA, and came to this conclusion:

So would this mean that any adjustments between property lines that were created by a subdivision plat would no longer be permitted, and any petition for adjustment of the boundary line between Lots, or between a Lot and a parcel must be categorically denied or refused because by definition a subdivision amendment cannot be a lot line adjustment, and by definition a lot line adjustment must comply with requirements of 10-9a-608 which would including meeting the definition of a subdivision amendment, which excludes lot line adjustments? I think they intended to eliminate the platting requirement and instead remove the ability to make adjustments for properties within a subdivision at all. Unless there is something here I am missing.

There are often unintended consequences from legislative changes, particularly when they move along quickly and people don’t get a chance to contemplate and stew over them for a while.  In this case, Todd seems to have picked up one pretty quickly.  Todd showed all his work in the message, I’ll forward it to some of our legal experts and see if he’s got a point.  Please, if any of you out there pick up on anything else, send it along.  Better to get them fixed now before they are enacted!

Next, with regard to the land use referenda process addressed in SB199 – Local Land Use Amendments, here’s an opinion piece written by one of the organizers of the referendum on the redevelopment proposal for the old Cottonwood Mall property in Holladay.  He, expectedly, excoriates the purpose of the bill, saying:

I believe those who serve in public office are generally good. But they don’t always get things right. In my community, elected officials ignored the recommendation of the planning commission, discounted citizen feedback captured in third-party survey work they commissioned, and falsely believed that this was the only developer who would come up with a plan for the old Cottonwood Mall. They unanimously approved the development, which was later overturned by referendum, an overwhelming number of popular votes… .  The housing constraints or affordability issues are not a byproduct of referendums. To suggest otherwise or state that referendums are being weaponized, as McKell does, is ignorant.

These kinds of comments about referenda overlook some of the very obvious flaws in that process.  For a good discussion about these issues, I urge you to take a look at this excellent paper in the UCLA Journal of Environmental Law and Policy titled Reconsidering the Use of Direct Democracy in Making Land Use Decisions. Here are a couple of excerpts from that paper:

Electoral processes are not designed to facilitate narrow factual inquiries. Instead, they employ communication channels designed to convey arguments quickly and persuade voters. … the information generated by a hearing before a planning commission differs markedly from the information generated in the often-raucous public debate fostered by elections. Thus, it should come as no surprise that some commentators have roundly condemned the sufficiency of the information available to the electorate, implying that it is of such poor quality as to invalidate any decision based upon it. … the evidence indicates that in some situations the information deficiency in elections is serious.  … Even if sufficiently detailed information is generated about a ballot measure, little control exists over whether that information is accurate or used appropriately. Fact-finding by voters during an election is a rough-and-tumble process in which opinion and fact are not necessarily congruent. Proponents and opponents can take facts out of context, and responses to inaccurate statements may not reach the same audience that heard the initial statement.

This is just some of the excellent discussion to be found in this paper on the referendum process.

Lastly today, there’s a lengthy and detailed story in the DesNews on the background and fallout to SB84 – HTRZ Amendments and it’s very controversial last minute amendment regarding the Dakota Pacific development in Summit County.  A couple of excerpts:

“This horrible assault on local communities’ rights of self-determination is a blemish upon fair, open and transparent government,” said Summit County Council Chairman Roger Armstrong in a statement issued earlier this month, after the bill won legislative approval. “The Utah Legislature should be ashamed.”

However, the bill’s House sponsor, Rep. Casey Snider, R-Paradise, is accusing Summit County of being in “violation of state law”’ for not adopting a housing and transit reinvestment zone at Kimball Junction. …

“This is the first time in the history of the Utah State Legislature that it has ‘spot zoned’ a specific property to benefit and enrich a specific developer,” Janna Young, interim county manager, wrote in a staff report to Summit County Council on Wednesday.

The bill has already won legislative approval from both the House and the Senate, and currently awaits Gov. Spencer Cox’s signature or veto. Cox’s office said this week he was still reviewing the bill.

Eric Moxham, one of the founding members for Friends of Responsible Development, said his group is encouraging county officials to “stand up for the citizens, and whether that means litigating with Dakota Pacific or the state, so be it.  If this is how our Legislature is going to operate … we are truly on a slippery slope to hell,” Moxham said. “Whether it be Summit County or any other counties across the state, they’re not going to have any ability to determine what’s best for their individual counties.”

As noted in an earlier post, this is indeed the silly season at the Legislature.  Five more days to go!

MAJOR LAND USE BILLS ARE OUT

February 24, 2023

At last, the substitute versions of the major land use bills are out.  Now we can finally see the details of the proposed language on each of the agreed-upon issues (and in some cases, issues that were not agreed upon!)

HB406 – LUDMA Modifications has a second substitute bill released yesterday, which was then passed out favorably by committee.  The bill is now awaiting a vote on the Senate floor.  In addition to some relatively minor language adjustments in a few areas of the bill, the biggest change regards the design standards restrictions.  In a previous version of this bill, a provision was added that prohibited a local government from regulating “subterranean improvements” that connect structures.  Not sure what this is referring to, and it was added to a bill that was supposedly the agreed-upon provisions of the Land Use Task Force.  This provision was not discussed or agreed to, so it kind of flies in the face of the agreement that these LUTF bills would only include things that were agree upon.

In this latest substitute version of the bill, the provision is changes so that it applies only to what is called a “local non-historic lot.”  Now what is that?  The bill defines it as

“Local non-historic lot” means a lot that:
1170          (i) is in an area designated in:
1171          (A) the National Register of Historic places;
1172          (B) the state register, as defined in Section 9-8-402; or

1173          (C) a local historic district or area, or a site designated as a local landmark;
1174          (ii) was created by a subdivision plat approved by a municipality and recorded after
1175     January 1, 1990;
1176          (iii) is larger than one acre; and
1177          (iv) includes primary structures built after January 1, 1999.
1178          (c) “Subterranean improvement” means an improvement or area for connecting
1179     structures that is:
1180          (i) located entirely below grade; and
1181          (ii) constructed or will be constructed consistent with Title 15A, Chapter 2, State
1182     Constructions and Fire Codes Act.

This is a very specific definition and obviously seems to be referring to a specific situation somewhere.  The bill also confers upon such a property the following extraordinary rights, including that any conditional use applying to such properties are now permitted uses.

For a dwelling on a local non-historic lot, a municipality may not impose
1210     restrictions on any dwelling’s vertical or horizontal facade or massing on any dwelling, and the
1211     exemption under Subsections (3)(a)(iii) and (3)(h) shall not apply for any building design
1212     element.
1213          (5) Any conditional use for a dwelling, use, or activity on a local non-historic lot shall
1214     be a permitted use.
1215          (6) A municipality may not include subterranean improvements in any determination or
1216     evaluation of whether a single family dwelling and any accessory buildings on a local
1217     non-historic lot comply with a land use regulation, plat, or other location restriction.

If anyone has any knowledge of the specifics of such properties and why this gets included in what was supposedly the agreed-upon LUTF bill, let us know!

The anticipated substitute for the other big LUTF bill, SB174 – Local Land Use and Development Revisions, came out last night.  This version of the bill is up for hearing in committee this morning.  The big changes in the bill:

• It now applies all the provisions to the County LUDMA as well. This was left out in the original bill.
• It makes some adjustments to the provisions for what happens when an entity’s MIHP is deemed to be non-compliant, including timing of restrictions on state funding and the penalty fees paid to the Olene Walker Housing Trust Fund.
• Makes some relatively minor modifications to the IADU provisions, including to the provisions for and ADU in an attached garage.
• Enacts extensive procedures for review and approval of residential subdivision plats.

I really encourage all local government planners and officials to look over the subdivision plat approval process that would be enacted by this substitute bill.  It is extremely detailed in what is required.  Just a general comment from me about this – over the last couple of years, the provisions of LUDMA are becoming more and more detailed, technical and complex.  Things are getting to the point where compliance with all the requirements of LUDMA will be a very technical and legal job.  Many of our smaller communities will struggle with this, let alone better staffed communities but who are already swamped with just dealing the day-to-day work of land use.  And the legislature is making lots of changes to LUDMA every session, which makes communities’ ability to get their codes and procedures into compliance increasingly challenging.  My two cents worth.

I still have some concerns about how the process would work, given the way the subdivision process is written in the bill.  For example, the bill indicates that there is to be a specific land use authority designated for review and approval of residential subdivision plats.  This can be an individual or a body, including the planning commission, but not the legislative body (don’t disagree with this).  But then, further on in the bill, it says that final plats cannot be approved by the legislative body or the planning commission.  What if the PC has been designated to be the LUA for subdivisions?  They can do everything, except approve the final plat?  Why?  Makes no sense to me.

Also, the bill indicates that review and approval of preliminary plats, the LUA may receive public comments and may hold no more than one public hearing.  Because subdivision plat reviews are administrative acts, no public hearing are required.  In fact, there’s a lot of literature out there in the legal and planning world saying that administrative actions should only have evidentiary hearings, not broadly open public hearings.  So I’ve not been in favor of seeing public hearings mentioned in a section of state code dealing with an administrative land use action.  However, in the real world, we know that many jurisdictions in their local codes do require public hearings for some administrative actions.  It is a practice that many legal and planning experts are trying to change.  Having said that, the language in this substitute bill is better than what was in the original bill in that it says if an entity wants to have a public hearing on a preliminary plat, you can have only one.

EXTRA! EXTRA! READ ALL ABOUT IT!

February 23, 2023

Hey, today is 2-23-2023!  Do you believe in numerology? 🙂

You can tell the legislative session is heating up as things move quicker, get more interesting, and the press writes more about them.  We have several pieces from the press about bills we are following.  I’ll run through them.

A piece in the Trib yesterday about the mining bill prompted by the proposed quarry in Parleys Canyon.  The bill is HB527 – Mining Operations Amendments.  Salt Lake County officials and area residents are pretty ticked off about this bill.

On Tuesday, the County Council voted unanimously “hell no,” in opposition to HB527. “The bill could potentially have devastating impacts on local air quality, critical watersheds, enhanced wildfire risk, our region’s ongoing drought crisis, cherished recreational opportunities and historic sites, potential impairment to a successful Olympic bid, and other major economic and quality of life concerns,” she said. “Salt Lake County should continue to have the right to exercise its legitimate land use authority to address health, safety, and community concerns within its borders. That is what local jurisdictions do best.”

The quarry proponents have set up their own information website.  It’s late in the session, at this point the bill has not been scheduled for any committee hearing, but if it has leadership support, it could move very quickly.  Keeping an eye on this one.

Next is an opinion piece in the Trib by Robert Gehrke about the Dakota Pacific/Summit County issue, related to SB84 – HTRZ Amendments, demonstrating that this imbroglio has made its way into the awareness of the main media.  As well as describing what’s been going on, Gehrke notes the unprecedented action in subsuming local land use authority by quoting the Summit County Council Chair:

“This horrible assault on local communities’ rights of self-determination is a blemish upon fair, open and transparent government,” county council chair Roger Armstrong said after the bill’s passage. “The Utah Legislature should be ashamed.”

A couple of pieces on Short-Term Rentals (STRs) highlight the prominent attention being paid to this issue by local officials (cited numerous times during the Growth Workshops held last fall), and now in the legislature – one an opinion piece in the DesNews and the other a story in the St. George News.  The bills in reference are HB291 – Short-Term Rental Amendments (circled on the House 3^rd Reading Calendar, awaiting a vote with a proposed amendment), and HB496 – Short-Term Rental Enforcement Revisions (which has not moved). The opinion writer says,

A stable neighborhood with familiar neighbors shouldn’t be a luxury, but something seniors can count on when picking a community to settle down in. A revolving door of strangers at a short-term rental does not create the sense of community that Utah seniors deserve. That’s why Utah lawmakers must avoid any state law that implements a top-down approach to these new challenges related to unregulated short-term rentals. Utah residents, and especially seniors, are counting on local control to confront this issue moving forward.

The St. George news article notes of HB291:

Musselman said his bill is circled and on pause while he fine-tunes it, and then he expects it will go to a vote in the House of Representatives this week. If it passes, then short-term rentals would need to be licensed by May 3.

Referenda were mentioned several times in the Growth Workshops last fall as well, usually in the context that when local officials try to enact measures to enhance housing affordability, they sometimes are stymied by their own residents through the referendum process.  In Tooele County, where there have been some ugly battles over referenda, a Tooele Transcript Bulletin story about SB199 – Local Land Use Amendments noted:

On the Senate floor, Mckell again argued that the referendum process has become “weaponized” and was hindering efforts to provide affordable housing and interfering with private property rights. He also said that in a constitutional republic the true referendum process is found in local elections where members of legislative bodies are elected.

As might be expected, some members of the public have a different view.

Jackie Larson, Spanish Fork, who described herself as “a farmer’s wife” who has sponsored a local referendum, said she was opposed to the bill. “The people have the right, guaranteed by the state constitution, to use referendums,” she said. “The referendum process protects people. Our constitutional right should not be taken away.”

That sentiment was echoed in last Monday’s League Legislative Policy Committee meeting when this bill was discussed, with several local elected officials voicing their opinion that the constitutional right to referenda should not be messed with.  The feeling is that support for HB199, while it passed easily with only 2 negative votes in the Senate, is much less assured in the House.  That may have been reflected when the House committee passed the bill out favorably yesterday, but only on a 5-4 vote.  It now awaits a vote on the House floor. You can see more details about the issues with this bill by going back to my Feb. 9 blog post.

The session ends a week from tomorrow.  It’s going to be one heck of a show!

HOW SILLY!

February 22, 2023

Observations on some of the bills we are watching as they make their way through the legislative process.  First, let me just say, these last few days of the legislative session are usually referred to as the “silly season” because time is getting short and there’s lots left to get done.  Bills or provisions that come out now are usually one of two things – they are supported by leadership and will move very quickly, or they are messages not meant to be passed in the short time left, but to send a message to those engaged on those issues.

SB271  – Home Ownership Requirements, one of the bills I noted came out right after the Presidents’ Day Weekend, is about fractional or partial ownership and their relation to Short-Term Rentals.  I got some feedback about this from readers in both Park City and Washington County.  Here’s some explanation from a Park City staff report when the council there was considering regulation last fall:

companies offering Fractional or Co-Ownership—where multiple investors each own a portion of a home that is typically, but not always, managed by a third party— have been purchasing and selling “fractions” of SingleFamily Dwellings and other Dwelling Units as vacation properties… .

Their concerns are summed up as such:

…finding a balance that protects Park City’s primary resident Zoning Districts and areas of the City with primary resident occupancy is vital to retaining the function and livability of established neighborhoods.

SB271 would prohibit regulation of fractional, or really of any joint, ownership.

SB166 – Education Entity Amendments was substituted with a version that was extensively renegotiated by staff at the League.  The substitute bill, while it still would allow home-based and micro-education entities to be allowed in all residential zones, reduced the size of these facilities (for home-based, the number went down from 25 to 16, for micro-education from 150 to 100).  It also now stipulates:

Nothing in Subsection (7) prevents a political subdivision from:

646          (a) requiring a micro-education entity or home-based education entity to comply with
647     municipal zoning and land use regulations that do not conflict with this section, including:
648          (i) parking;
649          (ii) traffic; and
650          (iii) hours of operation;
651          (b) requiring a micro-education entity or home-based education entity to obtain a
652     business license;
653          (c) enacting municipal ordinances and regulations consistent with this section;
654          (d) subjecting a micro-education entity to standards within each zone pertaining to
655     setback, height, bulk and massing regulations, off-site parking, curb cut, traffic circulation, and
656     construction staging; and
657          (e) imposing regulations on the location of a project that are necessary to avoid risks to
658     health or safety.

But yesterday in the Senate, the vote on the bill was 13-13, which means it failed to pass.  However, in a strategic move, Sen Fillmore, the bill sponsor, voted with those to not pass the bill, which means he could now bring it back on a motion to reconsider.  Don’t think this one is dead yet.

HB265 – Sentinel Landscape Amendments has a second substitute version on the floor of the Senate.  This version no longer prohibits cities from annexing property within 5,000 feet of a military facility, but instead requires that all local entities within that distance to prepare compatible use plans.  If the entity has a similar plan that was previously adopted, that would suffice.  However, it still retains the provision that all land use applications of an entity within 5,000 feet must submit those land use applications to the State Department of Veteran and Military Affairs for review of compatibility.  The Department has 90 days to respond.  Wow!  That’s potentially a pretty substantial delay in the processing of land use applications!  And given the distance (nearly 1 mile) in communities like Clearfield, Layton, Roy, South Ogden, Saratoga Springs, Bluffdale, Eagle Mountain and Tooele, this could be a lot of land use applications!  I’m surprised there hasn’t been more of a reaction from those communities.

There is a third substitute that has been released for this bill, but has not yet been adopted.  It contains a provision that is unrelated to the Sentinel Landscape (land use around military facilities).  Where the heck did that come from?  Here’s what it says:

A city/county may not restrict property owners of adjoining land, regardless of the municipality or county in which the land is located, from entering into an agreement to provide a right-of-way for the purpose of gaining a secondary access to an owner’s property.

Sounds like something meant to address a specific anecdote somewhere – again!  These should be discussed first!  Or maybe it’s meant to be a message…  It is the silly season at the legislature right now.

We are still awaiting the long-anticipated substitute for SB174 – Local Land Use and Development Revisions, which has the mandated uniform process for consideration and approval of subdivision plats (as well as other things).  Given the experience with the other major land use bill – HB406 – LUDMA Modifications, where some things were added in the substitute bill that had not been discussed by the Land Use Task Force, who knows what else might show up in that bill?

As I said, it is the silly season!  Keep your eyes open!

TWO NEW POST-HOLIDAY BILLS

February 21, 2023

Quick update on a couple of land use-related bills that popped out over the holiday weekend.

The first is HB527 – Mining Operations Amendments.  This bill would make some changes to the way mining operations or mining vested rights are determined and treated.  I surmise at least some of this had to do with the limestone quarry that was proposed in Parleys Canyon last year and caused some confusion between what the county land use regulations could do and the State mining regulator was allowed and had authority to do.

The second bill is SB271 – Home Ownership Requirements, which would say this:

Notwithstanding Section 10-9a-501 and Subsection 10-9a-503(1), a municipal
37     legislative body may not:
38          (a) enact or enforce a land use regulation that regulates co-owned homes differently
39     than other residential units; or
40          (b) use a land use regulation governing co-owned homes to fine, charge, prosecute, or
41     otherwise punish an individual solely for the act of owning or using a co-owned home.
42          (3) Notwithstanding Subsection (2), a legislative body may adopt and enforce land use
43     regulations, if the regulations are applied equally to all residential units, including co-owned
44     homes.

The bill defines co-owned homes as:

any residential unit that is jointly owned, in any manner
34     or form, by any combination of individuals or entities.

Is this even an issue?  I have to say I haven’t heard of anything to do with this.

LEGISLATIVE LAND USE ACTION HAS A NEW MEANING!

February 20, 2023

Now to relate the playout of a very specific situation involving a county (Summit) and a development proposal (Dakota Pacific).

There has been for some time now a proposed development by the Boyer Company in the Kimball Junction area of Summit County, originally called the Tech Center.  Let me first say that I am not going to go into much detail about the project here because it has a long history with much nuance and more than one side to the story.  I’ll include some links that will give more detail to those who are interested.

The project was intended to be a business/jobs development and some limited development occurred.  In 2018, the project was bought out by Dakota Pacific, who proposed changes to the plans, including an extensive number of residential units.  This generated considerably controversy with citizens in the area and delayed implementation of any changes through the county process.

Last year, in the now-well-known housing affordability bill, HB462, a provision was included that required a specificly-defined county (Summit) to create a Housing and Transit Reinvestment Zone by the end of the year.  The provision was pretty obviously aimed at the Kimball Junction project by Dakota Pacific.  This was kind of alarming to see the legislature take such a specific action aimed at a particularly development in a particular jurisdiction, but there it was.  They were also required to make certain provisions in their MIHP.

Summit County was not happy about all this, as you can imagine.  The county did make modifications to its MIHP, but failed to create the stipulated HTRZ.

In this year’s legislative session, right as the session got underway, Rep. Birkeland, who represents portions of Summit County, introduced a bill – HB233 – which would have removed that HTRZ requirement.  The bill has languished, however, not going anywhere.

A week ago, a bill came out that would have done something extraordinary – something I have not seen to this scale in all my years of dealing with land use issues there.  The bill – HB446 – stipulated that if a specific county (definition matches that from last year’s bill, so Summit) has not created the HTRZ required by Dec. 31, 2022, then certain property defined in the bill would be allowed to have certain development rights.  The language is so specific that it stipulate the number of dwelling units per acre allowed, other types of uses allowed, and infrastructure allowed.  Wow!

As you might imagine, this generated tremendous outrage on the part of officials and citizens in Summit County.  See this story in the Park Record and this Facebook post from Summit County officials.  See also https://www.parkrecord.com/news/summit-county/about-dakota-pacific-an-open-letter-to-summit-county-council-from-friends-for-responsible-development-for-greater-park-city/

This, of course, raised the anticipation of the committee hearing that would be coming for HB446 and the likely huge outpouring of public sentiment.  But wait.  Three days later, on Feb. 15, just before the House was to take action on SB84 – HTRZ Amendments by Sen. Wayne Harper, a bill that was making some modest changes to the HTRZ provisions, a substitute bill was introduced that included the language from HB446.  The substitute was adopted by voice vote of the House, and then passed by a 71-0 vote.  The next day the Senate concurred with the substitute bill, and it was done.  The provisions of HB446 were now all approved, without ever having had a committee hearing, and apparently with little discussion.

As one might expect, the Summit county residents and officials are not happy.  A petition effort to encourage Gov. Cox to veto the bill quickly got going, but whether it will have any impact remains to be seen.  The citizens are angry enough I would guess they would try a referenda on this bill, but – it was passed by more than two-thirds of each chamber of the legislature, so it wouldn’t even be eligible to be referended.

I am in no position to comment on the particulars of this situation in Summit County and why it has played out the way it has.  Obviously, there are those in the legislature who feel that taking such an action is justified.  But for me, as a long-time land use practitioner in this great state, it is alarming to me to see that the legislature is indeed willing to take such an action.  Will there be other situations where they might feel so justified?  What’s the threshold for that?  Watch out, folks!

A NEW LAND USE BILL!

February 18, 2023

Late in the day Friday, the anticipated substitute for one of the major land use bills was introduced and promptly passed by the full House.  The bill, HB406 – LUDMA Modifications, is now in the Senate, and it is in many ways a rather different bill than the original.  Most apparent is that many of the provisions in the original bill applied only to municipalities, an apparent oversight.  The substitute bill now includes the same provisions in the counties LUDMA as well.

Another major change in the bill is the inclusion of provisions regarding the allowable requirements that can be imposed for low-volume residential streets, such as those typically included on subdivision plats. They are defined as “residential roadways” in the bill (lines 802-815).  The bill would stipulate that such streets may have a maximum width of asphalt of 32 feet.  The bill goes on to list a number of exceptions to this width requirement, and then sets up an appeals process (lines 1010-1056).  This provision was expected, as it had been the subject of a long series of negotiations between the Property Rights Coalition and local government officials and engineers.

The provision in the original bill regarding “moratoriums” (actually pending and temporary ordinances) has been changed, for the better.  However, it still took me having to get some guidance from my legal scholar colleague to understand just exactly what the language of the bill was saying (take a look at lines 1082-1084 in the bill and see if you can figure out on your own just what it’s saying).  According to my colleague, this is referring to if there has been a pending ordinance or temporary ordinance on this same topic in effect anytime in the previous 12 months.  The idea is to prevent a local jurisdiction from “stacking” moratoriums – that is, at the end of the allowed 6 month period, another is initiated to follow directly.  When I made the comment that we’re getting more and more provisions in LUDMA now that I dare say no planner, planning commissioner or councilmemeber, let alone many other attorneys, can understand, my colleague said rather tongue-in-cheek, “well, we’re apparently trying to make the land use codes more like the water codes – something only specialized attorneys can understand!”  Amen!

The substitute bill also adds language that stipulates that a house in a residential zone that has a conditional use, can be replaced without having to reapply for the conditional use (must have been an anecdotal problem somewhere – I don’t recall any discussion about this with the Land Use Task Force. And as we know, the best way to solve such one-off issues is to … pass a law about it in the legislature!)

Some of the language in the bill on changes regarding development agreements has also been modified.

A new provision regarding the prohibition of building design elements has been added to the bill.  It says that “subterranean improvements” (defined in the definitions section of LUDMA) are not subject to land use regulation, plat, or other location restrictions.  Again, there must have been something somewhere that triggered this.

And finally, a provision has been added to the bill regarding the requiring of surety for landscaping.  This had been the subject of discussions in the LUTF, but I don’t recall there being agreement on what to modify.  The provision in this bill stipulates that surety can only be required for landscaping that will be dedicated to and maintained by the public jurisdiction, not any private landscaping.

Okay, there you have it.  Pretty much a new bill.  And as I said, this substitute bill has passed the House and will now be taken up by the Senate.  Two weeks left!

THE TWO WEEK WARNING

Februrary 17, 2023

We are still awaiting the promised substitutes for a couple of the major land use bills for this session, HB406 – LUDMA Modifications and SB174 – Local Land Use and Development Revisions.  The other major bill, HB364 – Housing Affordability Amendments, has another substitute version out that has not yet been adopted.  This substitute makes more changes to the moderate income housing plan and reporting requirements and to the housing trust fund provisions.  The two house bills are circled on the House 3^rd Reading calendar, meaning they will wait there until the sponsor or leadership feels like they are ready to go, which likely will not happen until the changes under discussion are agreed to and offered as substitute bills.  The Senate bill, however, has been passed by the Senate in its current form and has been introduced in the House.  Changes can still be made there, as is likely (we certainly recommend that!)

On other fronts, SB158 – Water Exaction Amendments, was heard in committee yesterday.  A substitute version was adopted and recommended favorably by the committee and the bill is now on the full Senate 2^nd Reading calendar.  A good explanation of what the bill now does can be found in this story in the DesNews this morning.  The bill addresses how much water local governments must plan for and can exact for new developments and how this is to be determined.  I recall that for years, there has been an on-going debate (dispute?) between cities and the state over the standard amount of water that cities are required to provide for each residential unit.  Most cities have said the state standard is too high and not based on the realities of more current use patterns, but the state has refused to budge.  This bill helps to address that by allowing:

Cities, counties and districts that provide culinary water for new subdivisions — be it high-density, multihousing units or single-family homes — to take historical flow data and make adjustments, according to Ivan Flint (former general manager of the Weber Basin Water Conservancy District), while still keeping in line with state drinking water requirements for culinary supplies.

“So the idea here is that first they would consider the minimum system wide sizing standards that are issued by rule and by code from the Division of Drinking Water, and then that they would in the next section (of the bill) distinguish between types of developments that are going on in the city and exact accordingly, as opposed to just doing an overall exaction for every type of development the same way,” Flint said.

He pointed out that retail water providers may have become so efficient at saving water through conservation programs, their demand for culinary water may be much less.

Lastly, a new bill on short-term rentals popped out yesterday – HB496 – Short-Term Rental Enforcement Revisions.  The bill is rather different from the bigger STR bill already in the hopper – HB291 – Short-Term Rental Amendments.  HB496 would require municipalities and counties that allow short-term rentals to adopt short-term rental ordinances and regulations.  It would also require an owner of a short-term rental to obtain a permit to operate the short-term rental, and establishes safety requirements for short-term rentals.  HB291 is slowly working its way through the legislative process.  It was substituted and passed out favorably in committee yesterday.  The substitute bill now includes an STR Pilot Program for counties as well as for cities.

There are two weeks left in the legislative session.  As you can see, there is lots left to do and very little time left to get it done.  This is always the most hectic time in the legislature, what makes everybody associated with it want to take a long vacation to Hawaii when it finally ends.

HERE’S TO YOUR HEALTH!  LET’S VOTE ON IT…

February 15, 2023

Action yesterday on SB199 – Local Land Use Amendments, the land use referendum bill.  See the February 9 blog entry for discussion about this bill.  The bill was passed out favorably by Senate committee with a 4-1 vote, and then passed 2^nd Reading by the full Senate with an 18-6 vote.

In the growth workshops held in various locations around the state last fall, the issue of referenda stymying local communities’ attempts to provide for more and more varied housing was raised, with the comment that something should be done to tone them down.  In the follow-up to the growth workshops, ULUI has identified the top issues identified and enabled a series of topical papers and workshops, one of which is referenda.  This topic will be presented at the APA Utah Spring Conference in May.

A good story in the DesNews this morning describes what happened in the legislature yesterday on this bill.  Sen McKell, the bill sponsor, said during the committee hearing,

“What’s happening across the state is the referendum process is being weaponized to hurt developers and cities as they plan for the future, as they promote projects.”

Virtually all the land use bills in the legislature this session are being justified on the basis of the housing affordability crisis, and the same is true for this bill.

“We have an affordable housing issue in this state, and it’s going to be really difficult to address and tackle affordable housing if we don’t respect the private property rights and those that choose to move forward with projects,” McKell said.

Even Governor Spencer Cox has mentioned referenda in reference to the housing crisis.

Cox, while unveiling his budget proposal, also said the referendum process can impede housing solutions because, in some instances, small groups of people can shut down any type of development.

“Everyone wants more affordable housing for their kids and grandkids but they want it to go where they can’t see it,” Cox said at the time.

In the past, however, when measures have been taken by the Legislature to restrict the use of referenda, the courts have stepped in to say this is a right enshrined in the state constitution, and measure that make them effectively impossible or very difficult to undertake are not constitutional.  A member of the public who had attempted to do a referendum in Spanish Fork city, spoke to the committee, saying,

“Exercising this right that is guaranteed under the Utah Constitution should be made easier for the people, not harder.”

There was some pushback on the bill, both in committee and on the Senate floor.  It will be interesting to see what happens with it in the House.

On another matter, former colleague and friend Nick Norris, Salt Lake City Planning Director, called my attention to a bill that I wasn’t aware had any land use implications, but it certainly does, even though it makes no changes to LUDMA.  The bill is HB331 – Microenterprise Home Kitchen Amendments.

The provisions of this bill make changes to a Section of the Utah Health Code for Microenterprise Home Kitchens, which defines them as  “a non-commercial kitchen facility located in a private home and operated by a resident of the home where ready-to-eat food is handled, stored, prepared, or offered for sale.”  Local governments could still regulate them as they would any home occupation, but this bill would have changed that.  It would, in essence, have incorporated land use provisions into the state health code.

The bill would have enacted the following:

 A political subdivision may, but is not required, to establish reasonable regulations
202     regarding:
203          (i) the maximum number of customers or customer vehicles that may be at a
204     microenterprise home kitchen at one time, except that a microenterprise home kitchen shall be
205     permitted to allow at least 10 customers to be on the premise at one time;
206          (ii) the hours during which a microenterprise home kitchen may operate, except that a
207     microenterprise home kitchen shall be permitted to operate from 8:00 a.m. to 10:00 p.m.;
208          (iii) the external appearance of the microenterprise home kitchen, except that a
209     microenterprise home kitchen shall be permitted to post a sign outside of the microenterprise
210     home kitchen that is three feet high and three feet wide; or
211          (iv) the maximum number of employees from outside of the household, except that a
212     microenterprise home kitchen shall be permitted to have at least two employees from outside of
213     the household at the microenterprise home kitchen at any given time.

214          (c) A political subdivision may not enact a regulation that creates specific requirements
215     for a microenterprise home kitchen except those that are specifically authorized under this
216     section.

When the bill was heard in committee on February 6, however, it failed on a 4-6 vote.  So the bill is dead – maybe.  It is possible that it could be resurrected if there is sufficient support, particularly from leadership.  We’ll keep an eye on it.

HALFWAY DONE!

February 13, 2023

We are halfway through the legislative session, so this is probably a good time to give a rundown of what’s happening with all the bills we are following on land use issues.  So here goes.

First, there is a new bill out this morning, but it is a very targeted bill, aiming very specifically at one county and property owner.  The bill is HB446 – Housing and Transit Reinvestment Zone Modifications.  It is related to last year’s HB462, which in one provision required a certain county (Summit) to create a Housing and Transit Reinvestment Zone by the end of the year.  It hasn’t happened, and now this bill is specifically aimed at that, giving specific development rights to some (a) property owner(s).  Wow.

Related to that, this year’s housing bill has a substitute out, HB364S1 – Housing Affordability Amendments, which mainly makes some changes to how the low-income housing tax credits can be used and applied, but it also has a provision again aimed at Summit County, related to certain things that it is required to include in its Moderate Income Housing Plan.

So far this session, there are a handful of what I would call significant land use bills.  Let’s run those down first.

HB364 – Housing Affordability Amendments – talked about this above, the substitute bill was adopted in committee today and then passed out favorably by the committee.

HB406 – LUDMA Modifications – this is one of the Land Use Task Force bills.  The bill is on the House floor, awaiting a 2^nd Reading and vote.  It is expected there will be a significant substitute bill which will change a number of the provisions, most particularly an entire set of provisions about subdivision improvements standards, and about bonding for landscaping.  Also, the provisions for moratoriums is likely to change.

SB174 – Local Land Use and Development Revisions – the other Land Use Task Force bill.  The bill is awaiting a vote on the Senate 2^nd Reading calendar.  A substitute bill is expected for this one as well, with some significant modifications to the proposed subdivision approval process from the original bill.

HB265 – Sentinel Landscape Amendments – the bill has passed in the House and has been assigned to a committee in the Senate, awaiting a hearing there.  This bill would require local planning around military facilities and review of land use applications around those facilities by a state agency.

HB206 – Airport Land Use Amendments – the bill has passed in the House, and is awaiting a 2^nd Calendar vote in the Senate.  The bill would require each jurisdiction that has a recognized airport within its jurisdiction to adopt land use regulations to protect the airport and uses near airports by December 31, 2024.

HB291 – Short Term Rental Amendments – this bill was assigned to a House committee at the end of January, and is not moving very fast, likely because this is a rather controversial topic and there is still a lot of ongoing discussion about this.

SB84 – HTRZ Amendments – a number of changes to the provisions for the Housing and Transit Reinvestment Zones.

The Other Bills

So here’s the rest of the bills we’re following that are less significant and their status.

HB32 – Outdoor Recreation Amendments – was assigned to committee at the start of the legislative session, nothing has happened since

HB39 – State Resource Management Plan Amendments – passed the House, on the Senate 2^nd Reading calendar

HB169 – Urban Farming Assessment Act Amendments – passed in both House and Senate, awaiting Governor’s signature

HB196 – Eminent Domain Revisions – only recently assigned to a House committee, not moving very fast

HB224 – Outdoor Recreation Initiative – passed in both House and Senate, awaiting Governor’s signature

HB233 – County Land Use Amendments – nothing has happened, this bill is going nowhere

HB276 – Water Supply Amendments – was held in committee, the word is this bill is going nowhere this session

HB277 – Homeowners Association Revisions – just recently assigned to committee, not moving very fast

HB408 – Mobile Business Licensing Amendments – passed out favorably by committee today, awaiting 2^nd Reading vote in the House

SB20 – Military Installation Development Authority Amendments – passed by both House and Senate, awaiting Governor’s signature

SB27 – Transportation Revisions – passed by Senate, introduced into House

SB43 – Public Notice Requirements – passed by House, awaiting a final vote in the Senate.  It’s been hung up there for some time, likely due to some issues with some provisions in the bill

SB76 – Water Amendments – passed by the Senate, passed out favorably by House committee, headed to the House floor for votes

SB113 – Local Agricultural Amendments – passed by the Senate, assigned to committee in the House

SB158 – Water Exactions Amendments – not considered by Senate committee, it appears this bill is not going anywhere

SB166 – Education Entity Amendments – passed favorably by Senate committee, circled on Senate 2^nd Reading calendar

SB181 – Campaign Sign Amendments – bill was substituted and then passed out favorably in committee, is awaiting a 2^nd Reading vote in Senate

SB199 – Local Land Use Amendments – assigned to Senate committee, awaiting a hearing

C’MON, GET EDUCATED!

February 11, 2023

Well, lookey there!  No new land use bills nor any revisions to the major bills appeared at the end of the week, but thanks to the eagle-eyed League staff, another bill I didn’t even bother checking earlier in the session because of its innocuous name (Education Entity Amendments) has a land use provision lurking within.  The bill is SB166 – Education Entity Amendments.

Existing language in LUDMA stipulates that charter schools are to be considered permitted uses in all zoning districts – see 10-9a-305 and 17-27a-305 item (7).  This bill would add to that list micro-education entity and home-based education entity.  What are those?  Well, the bill does not provide a definition in LUDMA for them, nor does it reference another location in state code for that.  But elsewhere in the bill, in the Public Education-Local Administration Title (53G), it does define them.  It says:

“Micro-education entity” means a person or association of persons that, for compensation, provides education services to 150 students or fewer.

“Home-based education entity” means a person or association of persons that, for compensation, provides education services to 25 or fewer students from their primary residential dwelling, accessory dwelling unit, or residential property.
(b) “Home-based education entity” includes:
(i) a tutoring service;
(ii) an education cooperative; and
(iii) extracurricular lessons.

So, does that mean that pre-schools, which many communities list and treat as conditional uses, are now included in this definition?  Not clear.  How does a micro-education entity differ from a charter school?  In terms of governance and structure, quite a bit.  In terms of land use, not so much.

Now here’s the odd part, again.  This bill puts this provision only in the county’s LUDMA.  There is no corresponding change to the municipal LUDMA.  That is very strange.  It would seem to me that most of these entities would wind up locating in cities rather than in unincorporated county areas.  So we have the flip side of what has happened earlier in one of the major land use bills.  Again the question is, was this an oversight (that’s my vote)?  Was it good lobbying on the part of the League?  Does no one want to put one of these in a city?  I’m guessing we’ll see some amendments to this bill before it’s done.

SHAVE AND A HAIRCUT… AND A TACO?

February 10, 2023

No new bills yesterday, nor did we see any of the reworked language that has been promised for the big land use bills yet.  So, in the meantime, let me share this about HB408 – Mobile Business Licensing Amendments that I got yesterday from Lee Sands, Local Government Policy Analyst with the Libertas Institute.

Lee says, “the bill is a result from extensive input I’ve gathered from state and local health departments, some careful consideration of the strangeness of state law currently defining Food Carts and Ice Cream Trucks AS Food trucks, and — most importantly — the logic behind granting the existing regulatory framework that exists for food trucks to businesses that functional identically, but that do not sell food. I’ve seen these businesses in the wild, and due to their inherently cross-jurisdictional behavior, I think it’s wise to go ahead and get a regulatory framework in place for them.

“HB 408 is amending existing state law for food trucks, which was first established in 2017 when we first teamed up with now-Lieutenant Governor Diedre Henderson to tackle the Food Truck trend and to set up a regulatory framework for them.

“The intent with the current bill is not to renegotiate or relitigate the past, but to take the existing state law established for food trucks and extend it to mobile businesses that look and operate almost identically to a food truck, but that do not sell food. To achieve this, we propose the Food Truck section of state code have a definition for “Enclosed Mobile Businesses” added to enable microentrepreneurs who wish to operate such businesses the certainty that if they get permits, pass any required inspections, and abide by lawful city and county regulations, they can operate throughout Utah without the hassle and cost of redundant processes.

1. Food Trucks, Ice Cream Trucks, Food Carts, and Enclosed Mobile Businesses should each have their own independent definitions, but establish that each is a type of mobile business.
2. Clarify that each of these businesses are required to get any and all initial and ongoing inspections currently required of them by a health department, but only those inspections that the nature of their vehicle and goods or services require of them. In other words, clarify that the state is not mandating that a mobile barbershop get food handlers permits, that Ice Cream Trucks, Food Carts, and Food Trucks be subject to identical regulations, etc.
3. Food truck event organizers can invite other types of mobile businesses to the same event, without additional hassle. In other words, Food truck events can have more variety and be more fun :)”

MAYBE .. MAYBE NOT

February 9, 2023

Only one new bill of interest out yesterday – SB199 – Local Land Use Amendments.  The bill has to do with referenda on land use actions, but it takes a bit of explanation.

The state constitution provides for the right of the public to do referenda and initiatives.  The state legislature, however, can make rules about how those can be done.  Those can be found in state code at Title 20A – Chapter 7 Issues Submitted to Voters.  Now you may not know, but within that code there is a section that relates specifically to land use actions – 20A-7-602.8 – Referability to voters of local land use law.  This section sets out the rules specifically for voter referenda for local legislative actions on land use laws.  It gets a little tricky after this.

This right of referenda allows voters to place on the ballot most legislative actions taken by their elected officials, at the state level and at the local level.  In other words, citizens who don’t like a particular action taken by the legislature or the local city council or county commission can submit petitions and, if they qualify, have the action placed on the ballot at an upcoming election.  However, there is a provision in the state constitution that says:

The legal voters of the State of Utah, in the numbers, under the conditions, in the manner, and within the time provided by statute, may…require any law passed by the Legislature, except those laws passed by a two-thirds vote of the members elected to each house of the Legislature, to be submitted to the voters of the State, as provided by statute, before the law may take effect.

While this provision specifically refers to actions by the state legislature, some believe that this would also apply to legislative actions taken by local governments.  Last year, HB462 required those communities with a transit station to prepare and adopt transit station area plans, with particular provisions for affordability and parking.  In addition, there was a clause inserted into the state referendum code that said:

a proposed referendum is not legally referable to voters for a transit area land use law, as defined in Section 20A-7-601, if the transit area land use law was passed by a two-thirds vote of the local legislative body.

This is based on the provision shown above.  This year’s SB199 extends that provision to action on any land use law.  That’s the explanation for SB199, but it isn’t necessarily the end of the story.

You see, further down in the state constitution, it says this about local laws:

The legal voters of any county, city, or town, in the numbers, under the conditions, in the manner, and within the time provided by statute, may… require any law or ordinance passed by the law making body of the county, city, or town to be submitted to the voters thereof, as provided by statute, before the law or ordinance may take effect.

You may notice it says nothing about the two-thirds here.  So what gives?  Well, there are those who believe that because of the provision for the state legislature, this will also apply to local legislative actions.  There are also those who say because it is not specifically called out in the provision for local laws, it doesn’t apply.  Who’s right?  It may take a legal challenge to find out.

NOW WHAT?

February 8, 2023

No new bills of interest out yesterday.  Thought I’d just quickly update what’s happening with some of the bills we are following, and to talk generally about what passage of these bills this year may mean for local government planners.

First, a big mea culpa on my part.  On SB174, which includes the newly proposed subdivision process, I had said in my notice about it that this would apply to all cities and counties.  Wrong!  Our good friend and fellow legislature-watcher Mike Hyde at Duchesne County sent me a message yesterday saying, hey, that subdivision process change doesn’t apply to counties.  Holy cow!  He is absolutely right!  I committed a real rookie mistake of not looking at the entire bill.  When I saw that the other provisions on ADUs and MIH reports included changes in the county LUDMA as well as the city’s, I just assumed it also applied to the subdivision changes without actually looking.  Guess what?  It doesn’t.

Now the interesting question is, why not?  Was this just an oversight?  Was there no concern about how counties process subdivisions? (from anecdotes I’ve heard from the PRC, that’s not the case).  Was it a great job of lobbying by the counties?  Don’t know.  It’ll just be odd if there’s this mandated subdivision approval process in LUDMA for cities, but not a corresponding one for counties.  Now this may change, as there are on-going discussions and a promise of a new version of this process to come out in a substitute bill shortly, even though the bill was passed out favorably as is by Senate committee yesterday, so stay tuned on this.

Okay, on to some other bills.  HB265 – Sentinel Landscape Amendments, the bill that would have prohibited cities from annexing land within 5,000 feet of a military facility, has been substituted.  The substitute bill no long prohibits annexations, but instead requires cities with land within 5,000 feet of a military facility, and counties, to create a “compatible” land use plan for those areas by July 1, 2025.  This is to be done in consultation of the state Department of Veteran and Military Affairs.  This is set forth in a new LUDMA section titled “Land use compatible with military use.”  The new section also stipulates that for land use applications that are received by a local government within 5,000 feet of the boundary of a military facility, the local government must first notify the DVMA and wait up to 90 days for a response for a determination of compatibility of the application.  Wow!  Around Camp Williams, Hill Air Force Base, and Tooele Army Depot, that could be a lot of land use applications!

Those are the big changes in bills we’re following.

Now just a quick note about all these bills and what they require.  First, there are a lot of planning mandates put on local governments by bills this year and last – moderate income housing plans and reports, transit station area plans, a water element in the general plan (that is incredibly detailed and specific), an airport compatibility plan, a military facility compatibility plan.  All these come with deadlines for adoption, and require time and money to complete.  All this on top of the regular workload that the local planning staff already have to do, and for which they are often already shorthanded.  Mike Hyde at Duchesne County just sent me a note today saying that he has talked with a consultant about what it would take to do the mandated airport plan for their county’s two small airports, and the answer is about $30,000 for each.  For smaller jurisdictions, this can be significant.

The second thing is all the changes in land use provisions that are being enacted at the state level, this year and in several recent years, that require local governments to change their local codes and their practices.  Again, many are just unable to keep up because there are so many and often so technical and detailed, and they’re already up to their eyeballs just handling day-to-day work.  We would urge all involved in the legislative processes to keep these things in mind.

WAIT – I CAN’T DO WHAT?

February 7, 2023

The Land Use Task Force bill is now out.  It is HB406 – LUDMA Modifications.  These are the areas the bill addresses (not all of them in LUDMA):

• Annexation – the bill modifies the definition of “rural real property,” primarily to indicate that it must consist of at least 1,000 acres (this part was inadvertently left out when rural real property was first inserted into the annexation code a few years ago, and has been the cause of stymying several proposed annexations), and also that it must be within the area proposed for annexation. The bill would also clarify partial annexations of islands or peninsula areas, and indicates that if an area is subject to more than one annexation proposal, the preference of the property owners must be considered.  This is not the more comprehensive rewrite of the annexation code that has been worked on.  That will likely not happen until next year.
• Development agreements – inserts a provision that if the DA curtails an owners’ rights under state or local code, it must be explicitly noted in the DA. It also appears to say that if everything that would be in the DA is something the local entity already has addressed in it’s land use codes, then a DA cannot be used.
• “Moratoriums” – I put this in parentheses because the term itself is not used anywhere in LUDMA. This kind of action generally falls into one of two categories – a pending ordinance, or a temporary land use ordinance.  These two seem to get conflated with each other and makes things a bit confusing.  Unfortunately, this bill only seems to make things more confusing about when a TLUO can or cannot be enacted by a local government, depending on if they have been operating under a pending ordinance situation.  It seems to prohibit the application of a TLUO to an application that has also been subject to a pending ordinance restriction, but then it seems to extend that prohibition to an application that was filed within 12 months (?).  I’ve had our legal expert at ULUI look at this, and his explanation is long and filled with uncertainties as well.  This language needs work!

A couple of other bills as well:

HB408 – Mobile Business Licensing Amendments – this bill seems to revamp the whole scheme for regulation of food trucks, ice cream trucks and carts, taco carts, mobile sharpeners, any business that is not in a permanent structure.  Look it over.

SB181 – Campaign Sign Amendments – creates a category of political signs for those running for office, and says that if such signs in public rights-of-way need to be removed, the entity owning that ROW can charge the campaign for removing those signs.

Just a note, there’s been lots of buzz about the subdivision provisions in SB174, and ongoing negotiations with the sponsor and those of interest to make changes.  We’ll see where that goes.  The bill is up for hearing in Senate committee this afternoon at 2:00 and will likely go through as is, I suspect amendments will come later.

SUBDIVIDE AND CONQUER!

February 4, 2023

The expected housing bill by Sen. Lincoln Fillmore appeared at the end of this 3rd week of the legislative session. As promised, it proposes a newly mandated process for approving subdivisions, as well as some issues with the moderate income housing reports, and with ADUs.

The bill is SB174 – Local Land Use and Development Revisions  https://le.utah.gov/~2023/bills/static/SB0174.html   Let’s run through the bill’s provisions.

On moderate income housing, the bill would require that a city or county that does not submit the required MIH Plan on time, or submits a plan that is then deemed to not comply with the state requirements, be required to pay a fine into the Olene Walker Housing Trust Fund.  The amount of the fine depends on the length of time the jurisdiction remains out of compliance.

On Accessory Dwelling Units, the bill would modify definitions so that attached garages are considered part of the house footprint, and thus an IADU could be built in or above it.  It also clarifies that one additional parking space can be required, up until the local ordinance would require 4 total spaces due to number of units or size.

The subdivision process the bill would establish I want to spend a little more time and detail on.  The bill would create a new subsection titled “Process for subdivision review and approval”, which would create a uniform process that all cities and counties would have to follow in reviewing and approving subdivisions.  I’ve got some issues with what the bill does here.

First, it creates a new definition of “administrative land use authority.”  It does this, it appears, to distinguish it from the land use authority definition for the rest of the LUDMA, which can include the local legislative body.  This one for subdivisions does not allow the legislative body to be the land use authority (LUA).

The bill then stipulates that the subdivision review process shall consist of a preliminary plat and a final plat, and that’s it.  Many jurisdictions I’m familiar with have a concept plan requirement at the beginning of the process, to work out the more discretionary layout, design and amenity questions.  These are issues the public often has some opinions about and may help the LUA with resolving. Then comes the preliminary plat, where compliance with the technical requirements of the local ordinance are reviewed.  Public input here is of limited value because of it’s technical nature, and is usually carried out by qualified staff.

What the bill appears to do is roll the more discretionary concept plan into the more technical preliminary plat stage, conflating these two quite different processes, and thereby introducing some uncertainty about the overall general administrative LU process.

The bill goes on to stipulate that preliminary plats must be reviewed in a public meeting.  This requirement is not explicitly imposed in any other administrative land use process, but if the LUA is a board or commission (often the PC), all their meetings are required to be open to the public.   The bill also says that the LUA may hold a public hearing. Nowhere else in LUDMA is there an allowance for a public hearing for an administrative action.  Indeed, there is a lot of literature out there in the planning and legal worlds that argues that public hearings for administrative actions are inappropriate – instead they should be evidentiary hearings. I think this provision is included to deal with the more discretionary concept plan issues.  Putting this language into our LUDMA, I believe, will just muddy the waters about how to handle administrative actions.

It is true that many of our local jurisdictions have public hearing requirements in their local ordinances, but I think this is the product of a long-term misunderstanding of what the administrative process is and how it should work.  A number of cities have amended their codes recently to eliminate the requirement for such public hearings.

The bill then goes on to require either direct notification of property owners within 300 feet of of the site of a proposed subdivision, or posting of notices on the property itself.  This could be an appropriate approach for an administrative action as the owners directly adjacent may be affected by the proposed action and should have the opportunity to present their claims – in an evidentiary hearing!  But again, these steps I’ve just called out from the bill demonstrate to me a confusing conflating of a discretionary and a technical process, each of which should have different ways of gathering information and input.

The bill continues on with the process, and then stipulates that the final plat must be approved by someone other than the governing body or the planning commission.  I understand why the council is called out here as they are prohibited from the beginning from being the LUA for subdivisions. But the planning commission?  First, the planning commission has no role in the subdivision process unless they are designated as the LUA for it.  It is an LUA that gives these approvals, so does this mean the PC can still go ahead and approve a final plat because they’re now really the LUA?  This is confusing, and I’m not sure what the intent is for the exclusion of the PC.

I’ve gone on way too long about this, and I’m sure we’re going to hear about other issues with this proposed bill as it moves ahead. Send me your comments and we’ll do our best to pass them along!

ONE DOWN…

February 1, 2023

One of the much anticipated housing/land use bills came out today – HB364 Housing Affordability Amendments https://le.utah.gov/~2023/bills/static/HB0364.htmlby Rep. Whyte.  This bill adresses a number of issues that cropped up with the moderate income housing plan reports and with housing funds and programs.  It is NOT the land use task force bill that we expect Rep. Whyte to be the sponsor of, that apparently is still coming.  Anyway, one of the big anticipated bills down!

Also, in an email I sent out yesterday I referred to a bill on water rights exactions that came out early in the week.  It apparently got moving pretty fast, but here’s an update about it from the League:

HB158 Water Exactions Amendments was pulled from the committee agenda this afternoon after several of our members reached out to their senators, and ULCT staff met with Senator McKell raising concerns with the bill language. This bill could still be amended and come back in a future committee so we will continue to negotiate with the sponsor.

THERE’S MORE?

January 28, 2023

So when I saw the story about the bill request that Rep. Spendlove has in for a bill dealing with parking – it’s title is Local Government Parking Requirements – I thought I should take a look at what bill requests related to land use there are still hanging, that we haven’t seen the language of yet.  Here’s the list, it’s pretty interesting.

First, of course, we have the bills that we’ve talked about previously from the co-chairs of the Commission on Housing Affordability.  Sen. Fillmore’s bill deals with housing affordability-related issues, while Rep. Whyte’s is the annual Land Use Task Force bill.  Don’t know how long it will be until we see those.

Local Land Use and Development Revisions – Sen. Fillmore

Land Use Development and Management Modifications ­– Rep. Whyte

There’s a whole raft of housing-related bill requests:

Affordable Housing Amendments – Sen. Anderegg

Affordable Housing Modifications – Rep. Blouin

Housing Affordability Amendments – Rep. Whyte

Single-Family Housing Amendments – Rep. Ward

There’s another bill related to housing around transit stations, in addition to the ones already out:

Housing and Transit Reinvestment Zone Modifications – Rep. Snider

There are several requests for bills related to local land use:

Local Land Use Amendments – Rep. McKell

Municipal Land Use Amendments – Rep. Birkeland

Short-Term Rental Enforcement Revisions – Rep. Birkeland

A couple of bills on infrastructure funding:

Limited-Use Infrastructure District Amendments – Rep. Dunnigan

Public Infrastructure District Revisions – Rep. Snider

A bunch of other bills on planning and land-use related topics:

Municipal Incorporation Amendments – Sen. Vickers

Utah Inland Port Authority Amendments – Sen. Stevenson

Utah Lake Authority Amendments – Rep. Brammer

Statewide Comprehensive Transit Plan -Sen. Anderegg

And finally, a billboards bill!

Local Billboard Requirements – Sen. Anderegg

Not all of these will make it out into the legislative process, and of those that do, a number will likely not make it all the way through the process.  Still, it’s interesting to see what’s on the legislators’ minds.

MEANWHILE…

January 27, 2023

No new bills out in the last day or two, so, with apologies to Stephen Colbert, MEANWHILE…

There are some interesting things popping.  First is the promise of a bill to reform parking requirements in local land use codes, at least in proximity to transit.  The proposal is described in this story in the Trib.  I have to say, I didn’t see this particular proposal coming.

Rep. Robert Spendlove, R-Sandy, has put in a request to legislative attorneys for a bill called “Local Government Parking Requirements, and he says the intent is threefold. “The idea is to have more walkable communities, more affordable housing and less government regulation.”

There has been a lot of discussion about reducing parking requirements in transit station areas as was done to some degree in last year’s HB462, and in the limited modifications to the station area plan requirements in this year’s bills (there may be some more coming).  But according to the Trib story, the proposal by Rep. Spendlove would go way beyond what has been done so far.

Around the country, reform of parking requirements is increasingly being seen as one of the chief ways to help housing affordability.  In this piece from January’s Planning magazine titled What Is Zoning Reform and Why Do We Need It?, part of the subtitle says “six zoning reform tactics that could help curb housing costs.”  The second listed strategy is “abolishing parking minimums,” and highlights several cities around the country where parking minimums have been eliminated or drastically curtailed.

So this new proposal seems to fit right into that national conversation.  Even locally, a few years ago while I was working at Salt Lake County we brought in Donald Shoup, author of The High Cost of Free Parking to do a workshop on this topic. But legislatively, this is not something that has been talked about much beyond the SAP initiatives.  It will be interesting to see where this goes.

MEANWHILE, earlier this week, National APA and the National League of Cities jointly announced a Partnership to Accelerate & Incentivize Diverse Housing Supply (here’s the League’s press release on the announcement).  The announcement says,

APA and NLC will convene local government officials, community planners, builders, financial institutions, housing policy associations as well as state and federal partners to develop, align, and advance locally-driven housing supply solutions.

This solutions-oriented campaign will provide model practices, ordinances and actionable resources to help local communities address their unique housing challenges. These efforts will be designed for immediate implementation by local leaders, planners and others working to combat the housing crisis.

So, now APA and the League are formally allied on the housing affordability crisis.  I talked to Utah League Executive Director Cameron Diehl about this a couple of weeks ago, I’ve asked him for a statement about it which I’ll pass along as soon as I get it.  He’s rather busy at the moment up on The Hill!

I’ve got some more stuff, but I think this is enough for today, I’ll save it for another day.

LOOKING FOR SOMEPLACE TO STAY?

January 25, 2023

One of the “major” bills we’ve been anticipating just came out – HB291 – Short Term Rental Amendments.  Short term rentals have been a big topic of discussion and concern in many cities and counties over the last couple of years, with piecemeal legislation trying to address them. In the Growth Workshops that ULUI and Envision Utah conducted around the state in October and November, STRs came up as a major concern in a number of them.

This last year, Rep. Calvin Musselman took on the task of attempting to do a more comprehensive review of the issues and craft a bill with participation from many.  Here’s the bill.  I haven’t had a chance yet to peruse it in detail, I just wanted to quickly get out the notice to you all and let you look it over and send in your comments as well.

The bill does create a new section in the city’s LUDMA, titled Short-term Rentals Municipal Pilot Program.  Interesting attempt to deal with some of the issues of STRs.

Also, take a look at the two previous blog entries, I did not send out alerts on these because the bills that are referenced are not major bills (well, some could be but likely won’t get far in this session, so, why worry!).

Lots more to come.

WEEK 2 BEGINS

January 23, 2023

Week 2 of the legislative session started out with a summary of what is happening on various land use bills by the League at their Legislative Policy Committee meeting today.  Nothing really new to report, just waiting for the bills to pop out so we can see the actual language.  Lots of issues will likely be incorporated in those bills.

Two new bills did appear late this afternoon, however.  They are similar to a couple of bills that were introduced in last year’s session but that did not go anywhere.  Rep. Phil Lyman is sponsor of both bills, and he has not been much engaged in the land use discussions on-going during the past year, at least that I’m aware of.

The first is HB276 – Water Supply Amendments.  This bill has a lot to say about how water is to be provided by municipalities to contract customers and others, including subdivisions and residential developments.  In our hyper-sensitive water availability environment we are now working in on growth issues, this bill if it were to pass would have considerable impact.  Not sure that it will go anywhere, but one never knows.

The other bill is HB277 – Homeowners Association Revisions.  Like last year’s bill, it seeks to make the Office of the Property Rights Ombudsman the clearinghouse for information and legal opinions on issues dealing with homeowners associations.  This was strongly resisted by the OPRO and most of the players in legislative land use issues last year (these are, after all, private associations and agreements, not public laws and ordinances).  This year’s bill goes a step further, in that would require that all attorneys employed by the OPRO must have a background in homeowner association law.  Whew!

END OF FIRST WEEK

January 21, 2023

Only one new bill showed up at the end of week one of the legislative session – HB265 – Sentinel Landscape Amendments.  The bill would prohibit municipalities from annexing land within 5,000 feet of a U.S. military or Utah National Guard facility, unless the military agrees to have the land annexed.  It also gives the military authority to specify what land uses can be allowed in that annexed area.  Pretty strong stuff, but I get where it’s coming from, given how much growth has been occuring around Camp Williams (where the term “sentinel” comes from), Hill Air Force Base and Tooele Army Depot.  The bill also uses the term “master zoning plan,” which is not a term used elsewhere in state code, nor for which there is a definition provided.

Also, SB43- Public Notice Requirements was substituted and passed by the Senate on Friday.  For land use (LUDMA), the bill requires a Class A public notice for general plan adoption and amendments, and a Class C public notice for land use regulation adoption or amendments.  The substitute bill struck out the definition of the classes of notices, but they are now contained in the text of the bill, starting at line 9435 (yes, that’s right, line nine thousand four hundred thirty-five!  And there’s a lot more lines after that!). And because of the way bills are drafted, it’s kind of hard to keep track of all the “ands” and “ors”, so you can figure out which things you must do, and which things are optional.  We’ll see if we can diagram this out so it’s easier to understand.

GOV TALKS HOUSING AND LAND USE

January 20, 2023

Last night’s State of the State speech by Gov. Spencer Cox was generally upbeat, and covered a lot of topics, as usual.  He did briefly address housing affordability and local land use practices.  Here’s what he said:

I took an economics class when I was your age, and the one thing I remember is that when demand exceeds supply, prices go up. It really is that simple. If we want less expensive housing, we simply need more of it. And not just deeply affordable or low-income housing — although we certainly need that, too — but more of everything.

Sadly, we know that government decisions are one of the major drivers in the price of a home. Not just taxes and fees, but every requirement placed on a builder — including the time it takes to make those decisions — increases the cost of a home.

Tonight, I’m calling on us to change it. We can build more and do it in a way that does not diminish the quality of life. Smart density, in the right places, paired with improved infrastructure from wise investments, and a renewed emphasis on single-family starter homes — remember those? — will make certain that Utah does not become like California and that future generations will be able to call this state home.

That’s why I am excited to work with Niko Fillmore’s dad and Ruthie Whyte’s dad, the League of Cities and Towns and other stakeholders on significant legislation to ensure that we increase supply and reduce the cost of housing.

You can watch and read the entire speech here.  His reference to Niko and Ruthie’s dads are Sen. Fillmore and Rep. Whyte, the co-chairs of the Commission on Housing Affordability.  Sen. Fillmore is working on a housing bill that we’ve talked about in previous posts, and Rep. Whyte is working on the annual Land Use Task Force bill that incorporates the things that the LUTF agreed on during the previous year (though this year there was a lot of talk and not much final agreement, so we’ll see what the bill winds up saying).

Nothing much else to report at this point.

DAY 3 UPDATE

January 19, 2023

A couple of new bills popped up yesterday, nothing major.  They are:

HB233 – County Land Use Amendments – this bill has an ominous title, but really only refers to one county – Summit.  In last year’s bill on Housing and Transit Reinvestment Zones, it was stipulated that Summit County was required to establish one at a specific location.  That didn’t sit well with the good people there, and this bill would repeal that requirement.

SB113 – Local Agricultural Amendments – this bill would prohibit a municipality or a county from adopting or enforcing an ordinance or other regulation that prohibits or effectively prohibits the operation of an animal enterprise or the use of a working animal.  However it does not apply if the ordinance or regulation is a land use regulation.

Yesterday at the League’s Legislative Policy Committee meeting, some more details about Sen. Fillmore’s bill were revealed, as League staff had gleaned them from discussions with the Senator and legislative staff, and from discussions by the Commission on Housing Affordability.  There are several issues that are being addressed in the bill.  Here’s a summary:

Subdivisions

• Standardize a two-step process: preliminary review and final approval
• Final approval to be staff administered

Station Area Plans (SAPs)

• If application is 100% consistent with SAP and zoning, then staff approval only
• Looking at shot clocks (time limit for approval process)

Internal Accessory Dwelling Units

• Clarify that units above garages are IADUs
• Clarify that local governments may not regulate “internal circulation”
• Considering removing ability of local governments to require additional parking
• Considering removing ability of local governments to exempt areas of city from having to allow IADUs

Consequences for HB462 non-compliance on moderate income housing plans

• Withold Class B & C road funds during period of non-compliance

There are some other concepts that are being floated for HB462 compliance, that have not been formally discussed by the Commission on Housing Affordability and the Unified Economic Opportunity Commission.  They are:

• For affordable housing proposals that take longer than 45 days to be reviewed, development fees would be refunded
• State mandate to allow affordable housing anywhere in the city
• State mandated “density bonus” whenever property is upzoned – add another unit per acre
• Establish a State Housing Appeals Board to review housing proposal denials by cities
• Payment of a fine to Olene Walker Housing Fund for non-compliant cities

There was also discussion about “Limited Infrastructure Districts (LIDs)” which is something similar to Public Infrastructure Districts that were created by the legislature in 2021.  In this case, the would be entirely private and paid off when properties are sold (lots of other details to these), but they do get access to public finance bond markets, with their lower interest rates.  This proposal has very strong support by legislative leadership, and there is a bill in the works sponsored by Rep. Dunnigan.  The League set up a working group yesterday to engage on this bill and attempt to work out the details.

‘NUFF SED

January 18, 2023

From this morning’s story in the DesNews about the first day of the legislative session.  Here’s an excerpt from Speaker Brad Wilson’s opening speech to the House.  Nothing more I need to say on this.

Wilson said the problem (housing affordability) is centered on high interest rates, over-regulation and a housing shortage.

“Some of these problems we have no control over, but when it comes to over-regulation, there is something that can be done. Local governments are at the forefront of critical decisions that impact our housing supply,” Wilson said, adding “some are doing it very well.”

He highlighted initiatives in Ogden, Clearfield and South Jordan as good examples, “but our housing crisis is a statewide issue, and we need all local governments to follow the lead of these and other cities that recognize the problem and provide solutions — rather than hurdles — to those supplying houses for the people of Utah.”

This year, lawmakers are poised to consider a slew of policy changes to help loosen controls around certain housing developments and more strongly incentivize (or force) cities to include moderate housing in their plans.

FIRST DAY OF THE SESSION

January 17, 2023

Today is the first day of the regular session of 2023 Utah State Legislature.  No new bills out yet related to land use beyond what I’ve already noted, but I’m sure things will get warmed up soon.

I’ve been debating with myself as to whether I should keep piling up statements and stories indicating that this will be a year to be reckoned with on land use.  It’s quite likely that after all the hype – nothing!  Or maybe just a much more muted legislative session, not the “apocalypse” that is hinted at.  Yes – no – yes – no.  Oh, well, here goes, here’s another “hint.”

A story in the DesNews Friday with the provocative title Is Utah too developer friendly? No, Gov. Cox says. ‘We need development. There is no other way’.  The subtitle says, “Housing market needs more supply to solve affordability crisis, so Utah leaders looking to break down barriers for development.”  Hint, hint?

Here’s some quotes from the story.  Gov. Cox:

“…government is skewing the market. The market is telling us we need more housing, but what’s holding that back, or was at least until we saw significant rate increases, is … local governments.”

“Government plays a big role in that piece, in that we tend to make it harder. Every regulation that we put on building housing adds to the cost of housing,” whether it’s fees or drawn-out approval processes, he said. “And at any stage in the process, those can be derailed.”

Sen. Lincoln Fillmore about his bill that’s in the works:

It’s still being drafted, but Fillmore said the bill seeks to enact “big, bold policy solutions” aimed at increasing housing supply.

The bill, Fillmore said, would “streamline” city approval processes for subdivision plans by requiring only one public hearing at the beginning of the approval process. It would also seek to sharpen Utah’s teeth when it comes to punishing cities that haven’t included moderate income housing in their plans by withholding state money for road improvements known as Class B and C funds.

Governor Cox again:

Not-in-my-backyard attitudes span across all political parties, and it’s something Utahns need to reckon with if they truly want housing to become more available and more affordable for not only themselves, but their kids and grandkids, Cox said.

“I have stories from the Avenues, and I have stories from Draper — I have stories on the right and the left — when it comes to NIMBYism. It is definitely a bipartisan problem,” Cox said. “But my message to people is, look, do you want your kids and grandkids to live here? And as we ask that question, the overwhelming majority of Utahns say yes. And the overwhelming majority of Utahns understand that means we’re going to have to build more housing.”

In another related piece, Anthony Flint of the Lincoln Institute of Land Policy wrote in the December 23 issue of Land Lines a story titled The State of Local Zoning: Reforming a Century-Old Approach to Land Use, and Utah gets some shout-outs in it.  The story is about the status of zoning reform in states around the country.  Several states such as California and Connecticut are deep into state-mandated changes and even complete reforms of local land use controls.  Flint says:

Not only blue states along the coasts, but others regarded as red, such as Utah, are engaged in some type of zoning reform.

The biggest driver of reform has been the lack of affordable housing, which is wreaking havoc with local economies, … said M. Nolan Gray, author of Arbitrary Lines: How Zoning Broke the American City and How to Fix It. Whether in California or Utah, Gray said, residents are confronting similar “housing affordability issues that are affecting the middle class—and they’re looking for solutions.”

What are those reforms in Utah?  According to Flint, in his A State-by-State Guide to Zoning Reform, published by the Lincoln Institute on the same day, he got it sort of right:

Utah. A measure passed in 2022 leverages state funding for local zoning reform that makes it easier to build middle-income housing and transit-oriented development. In late 2022, the state legislature was also considering withholding state funds for communities that lack a housing master plan, and overriding local zoning and hearings processes to allow landowners to build affordable housing.

Much of Flint’s piece, though, talks about how state-level zoning and other land use reforms are frequently resisted by local governments.

Still, the effort to apply new standards statewide is facing fierce political opposition at the local level, where land use decisions have historically been made, and where the right to set zoning has been heavily guarded since higher levels of government granted that power a century ago. The resistance warns against “imperialistic rezoning from state capitals,” in the words of one critic, framing the mandates aimed at increasing housing supply as inappropriate state preemption.

Is this the case in Utah?  I would say there has been some measure of resistance, or rather I would say push-back to the specifics of the proposed changes, from local officials, not so much because they oppose any changes to land use policies, but rather to allow a more co-operative approach.  Flint says later in the piece,

If the key to any public policy reform lies in implementation, that may be especially true with something as entrenched as local control over land use. States intent on reform must convince localities that changing zoning in targeted ways is achievable and will be beneficial.

The success of statewide zoning reform in the future may well hinge on the promise of that kind of state-local collaboration.

That is what I see in the efforts of the League and other local officials to achieve – some kind of collaboration on how to best accomplish the outcomes that are desired.  There are, of course, some who just plain don’t want any state meddling in local affairs, but that is not a realistic outcome, either.

Flint’s piece is definitely worth a read.  He has been one of my favorite commenters on land use issues for many years.  He wraps up his piece with this insightful comment from Sara Bronin of Cornell University:

Bronin agrees that modifying rules established long ago can lead to big-picture payoffs—even as that is a complicated message to convey, since zoning has for such a long time remained unseen in the background.

“Zoning is the most significant regulatory power of local government,” she said. “It not only governs where we can put housing and factories and parks and shops—it actually has significant impacts on the economy, and even, I think, the very structure of our society.”

Here’s wishing us well in the outcomes of our 2023 legislative session!

MORE BILLS, AND A HINT OF COMING ATTRACTIONS?

January 13, 2023

Here are some more bills that have some land use and planning related aspects to them:

HB196 – Eminent Domain Revisions – expands the ban on the use of eminent domain for a public park to any type of public park, whereas current language is for public parks that are primarily for trails or walking or biking (why is there such an opposition to this?)

HB206 – Airport Land Use Amendments – makes a lot of changes to, and encourages or even mandates entities that have an airport located within their jurisdiction to adopt airport protection land use regulations.

HB32 – Outdoor Recreation Amendments – requires the Division of Outdoor Recreation to prepare a recreation management plan for Provo Canyon.

HB39 – State Resource Management Plan Amendments – adopts the most recent State Resource Management Plan, dated January 9, 2023.

HB169 – Urban Farming Assessment Act Amendments – provides that a county may limit an authorization of urban farming to either cultivating crops or engaging in livestock production or may allow both.

SB20 – MIDA Amendments – technical stuff, if you have one of these in your jurisdiction, take a look, otherwise…

In other news, the Salt Lake Chamber held their legislative preview meeting yesterday, and housing and land use were part of the presentation.  In a foreshadowing of what may be coming up on the Hill, here’s a recounting of what was discussed from a Salt Lake Tribune story about the meeting:

(According to Phil Dean, chief economist and public finance senior research fellow at the Kem C. Gardner Policy Institute,) Utah saw more than 40,000 dwelling permits issued in 2021. That dropped below 30,000 in 2022 as rising mortgage rates pushed buyers out of the market, and the report estimates that permits will be closer to 23,000 in 2023 and 2024.

Still, Dean thinks the state has some advantages. “I do think there is opportunity for us to increase housing supply when other states might not be able to.”

He sees two levers in particular the state could pull. One is zoning policy. Even some suburban cities are now coming around to accepting more housing per acre. The other is leveraging federal stimulus dollars, which are still available, to build more infrastructure like water and sewer to support housing development.

Michael Parker, vice president of strategy for Ivory Homes and member of the council, said, in addition to zoning, cities need to streamline their approval processes for new construction, and they need to have better defined affordable housing plans, which are required by the state.

Parker is expecting the Utah Legislature to increase both the carrots and the sticks for cities during the upcoming session to address housing challenges, but the state can’t just buy its way out of the problem.

“We need public policy change to address this issue because we can’t subsidize our way out of it,” Parker said. “We could spend the entire budget surplus and not be in a better spot.”

MORE ON SUBDIVISIONS BILL

January 12, 2023

In yesterday’s legislative update, I indicated that among the land use bills we are awaiting was one that Sen. Fillmore was working on, and that we didn’t really know what the specifics of that bill would be.  Well, yesterday the Unified Economic Opportunity Commission (UEOC) met and got a report on various growth-related bills and initiatives, including one from Sen. Fillmore and what he’s working on in his (protected) bill!

As I’ve noted in previous posts, the UEOC has become the most engaged state-level body on issues of growth and housing, and that was borne out again in it’s meeting yesterday.  Most of the meeting was spent discussing various initiatives and proposals the group has been working on and endorsed for the upcoming legislative session.  Reports the body received included one on Limited Infrastructure Development Districts (similar to PIDs, but all private), and the report from Sen. Fillmore on his bill.

Katie McKellar of the Deseret News wrote a very good summary of the growth and housing issues discussed in the meeting.  To borrow from her piece, here are some of the key points.

On the subdivision process modifications, McKellar wrote:

First, the bill would change the way cities would be required to handle subdivision plans. The bill, he said, would “streamline” and “make uniform and predictable the process by which people who are building affordable housing … get those to the market faster.”

Under the bill, there would be an “early stage legislative approval” of a subdivision plan. “But then once that approval happens, the developer can go forward knowing, ‘My plan is approved. I don’t have to go back to this municipal authority every time … I want to just implement what’s already been approved,’” Fillmore said.

Currently, subdivision plans could be subject to several public hearings after initial approval. Fillmore’s bill would cut that down to one public hearing opportunity, at the very beginning of the process. It would also make clear the implementation of an approved plan is an administrative function, and therefore not subject to public hearings.

“It really will streamline the process and make it much more predictable for developers and shorten the amount of time it takes to get such projects to market,” Fillmore said. “Time being money, we hope that also has an impact on reducing the cost of housing,” Fillmore said.

He added the bill would also “take that same concept and apply it to other kinds of development,” like station area plans, or projects oriented around transit hubs.

South Jordan Mayor Dawn Ramsey, who sits on the Unified Economic Opportunity Commission, thanked Fillmore for his work, and added she wanted to make clear that the provision to streamline the subdivision approval process would still allow for an open process and public hearing “at the beginning of the process.”

“There’s absolutely still public input, there’s still an open process at the beginning, but once this project is approved, then yes, it becomes administrative and it just moves forward,” she said.

Weber County Commissioner Gage Froerer also spoke in favor of streamlining subdivisions, saying it would provide opportunity for the public to weigh in on a proposed project, “but at the same time not (give) the public three swings at the bat to derail a development.”

Cameron Diehl, executive director of the Utah League of Cities and Towns, told the Deseret News in a statement the proposal to change the process for how cities administer subdivisions “will positively impact all new housing development in Utah.”

“We think this proposal will improve the efficiency and predictability around the subdivision process while still respecting the role of city leaders in planning our communities.”

The subdivisions process modifications was actually a proposal made by Cameron Diehl and the League of Cities and Towns as a counter-proposal to some other ideas that had been floated by the Property Rights Coalition in discussions in the Commission on Housing Affordability.  And some of the League’s proposal came about as a result of discussion that had been ongoing earlier, reflected in a conference session on the role of public input in land use processes that I was part of at the APA fall conference and the ULUI Land Use conference.  You can see the basis for a lot of those presentations by going back to the blog postings for May 10, May 9, and April 25.

Having said that, we still don’t know exactly what the bill is going to say about the subdivision process as we have not yet seen the language.  It will be eagerly anticipated, and hopefully we may have the ability to contribute to that language before all is said and done.

Another issue that will be addressed in the bill is much more controversial.

Second, Fillmore’s bill would also seek to sharpen Utah’s teeth when it comes to punishing cities that haven’t included moderate income housing into their city plans. Currently, Utah law punishes cities that fail to adopt or make progress on their moderate income housing plans by making them ineligible for transportation investment fund dollars, or state money that’s set aside for larger regional projects.

However, Fillmore said that can be sometimes problematic. “We would be in a situation where we might be holding Lindon hostage for Orem’s failure to make progress on their housing plan. If Orem can’t get funding, that just creates more traffic problems in Lindon and in Provo.”

So, Fillmore said he’s aiming to create a penalty that’s “more targeted to cities,” by withholding state money for road improvements known as Class B and C funds.

This has been brought up in earlier discussions, and the League has pretty much said this is a non-starter for their membership.  So, this will set up an interesting clash to come.

Thirdly, Sen. Fillmore indicated that the bill would have some clarifying language about aspects of the accessory dwelling units language that was passed in last year’s legislative session.  What that would be, he did not say.

There was also some discussion about the Limited Infrastructure Development Districts concept from Rep. Mike Schultz and Ty McCutcheon.  If you are interested in this issue, take a listen to the UEOC meeting here.  In fact, it’s worth a listen to overall just to get a sense of the role this body is playing in state-level policy towards growth, housing and economic development.  It is significant!

Okay, that’s it for today.  I’ve already found some more planning related bills, and some interesting other material, I’ll post those in the next couple of days.

FIRST BILLS OF THE SESSION!

January 11, 2023

With a tip of the hat to The Polar Express, I am revealing the first land use-related bills of the 2023 legislative session! (Doesn’t quite roll of the tongue like “the first gift of Christmas,” does it?).

First, let me just say this is shaping up to be a … I don’t know what kind of … session with regard to land use.  That’s because we really haven’t gotten any real language on what’s going to be in various bills that are being talked about, not even the Land Use Task Force bills.  It’s a long story, some of which I’ve recounted portions of in the past, but bottom line is, we just really don’t know what we’re going to get on land use issues this session.  There are hints that it’s going to be a significant session with regard to land use issues – statements from legislators that all hell is going to break loose, statements in the press that Speaker Wilson, who has worked in real estate as a commercial developer and homebuilder, indicated cities will be in the policy crosshairs.!!

Okay, with that introduction, let me get to the bills.  They are beginning to appear as the start of the session is now less than a week away.

The first is a bill that will make some modifications to the transit-oriented development investment zones – SB84 – Housing and Transit Reinvestment Zone Amendments.  Most of these relate to the specific zone that the previous year’s bill mandated be established in Summit County, but there are some other changes as well. Nothing earth-shattering, but for those involved in these, something to stay on top of.

The next is a bill that is not specifically land use-oriented, but does affect local land use processes.  It is SB43 – Public Notice Requirements.  This bill comprehensively creates a new system of public noticing standards for all public notices in state and local government, including for land use processes.  It creates three main categories of notice, Class A, Class B, and Class C, each with varying requirements depending on the kind of action being noticed.  Most of our land use process noticing requirements become Class A notices, but there is one that is Class C.  The bill is huge because it changes the noticing requirements for everything in state and local government, so let me give you some reference points.  To see the language creating the new three classes, go to line 9512 in the bill.  To see the changes for land use processes, go to lines 2400-2522 for municipalities, and lines 4385-4819 for counties.

There is also SB27 – Transportation Revisions.  Mostly what it does related to land use is make some minor modifications to the station area planning requirements for those communities that have transit stations and are required to prepare these plans.  But it also makes an overall change that relates to all general plans – the bill would require that all amended or newly adopted general plans are sent to their AOG within 45 days of adoption.

Finally we have SB76 – Water Amendments.  This bill adds some more provisions and requirements to the general plan preparation requirements for the water use and preservation element.

Just to give a flavor of what may be coming, here’s a list of bills that have been filed for and are currently in process of being written – we have not seen the language of these bills yet.

Affordable Housing Amendments – Sen. Anderegg

Housing Affordability Amendments – Rep. Whyte

Single-Family Housing Amendments – Rep. Ward

Utah Lake Authority Amendments – Rep. Brammer

Airport Land Use Amendments – Rep. Ballard

Statewide Comprehensive Transit Plan – Sen. Anderegg

Water Conservation Amendments – Sen. Sandall

We also are aware that Sen. Lincoln Fillmore, co-chair of the Housing Affordability Commission, is working on a bill that will address housing and land use, but we have no idea what is going to be in that bill.  It is not listed among the bills being worked on as he has asked this bill to be protected and confidential.  Hmmm…

So it begins.  Plenty more to come.  Stay with us and help us out.  It’s going to be a most interesting year…

NOW THAT THINGS ARE HEATING UP…

September 15, 2022

Greetings!  I’m back!  I’ve been away for some time due to a variety of factors, mainly the end of summer activities, and the heavy workload I got myself into getting sessions lined up for the APA Utah conference, working with the ULUI to get the first Growth Workshops set up, and then holding them in Davis and Weber Counties.  And then getting to work on subsequent workshops, which we are modifying because of the feedback from the first two.  This all kept me busy enough that I really didn’t feel like I wanted to spend any more time on worklike stuff.  But enough excuses.

What I really need to do is get back to doing my job as the APA Utah Legislative Chair and update the membership on what’s happening on the legislative and political front, and suffice it to say, there is a lot going on!  I called this year’s legislative session “the year of the planner” because of all the planning- and land use-related legislation that was passed, and all the programs and funding that were approved as well.  Well, I think the next legislative session will continue to see a pretty hefty emphasis on our beloved profession as well.  There is a lot of churn going on behind the scenes in discussions by such groups as the Land Use Task Force, the Unified Economic Opportunity Commission (UEOC), and the Commission on Housing Affordability (CHA, which is now no longer a free-standing body but is instead a working subcommittee of the UEOC).

The Land Use Task Force has been meeting and discussing a number of things over the summer, including some of the ideas that have been generated in subcommittees of the CHA.  I’ve been in most of these meetings, and must say it has been really remarkable the variety and scale of things considered.  In keeping with the nature of the LUTF, which is for the group to hash things out collectively first, then bring them out for public view and consideration, I have not been able to write about them and update you all, and that’s still somewhat the case.  However, some of the items have been generally discussed just recently in a public meeting, and while I still cannot give details (they’re still being worked on), I can summarize what has been brought forth in the public meetings to give you all a sampling of the tone and content.

The meeting I’m referring to was this last Tuesday’s meeting of the Commission on Housing Affordability.  Most of the agenda consisted of reports from it’s subcommittees on the various areas they have been working on, such as rural housing, and low income housing , with recommendations for future legislative and administrative actions.  Another of the subcommittees is on “attainable housing,” chaired by CHA member Chris Gamvroulas of Ivory Homes.  Chris is also a participant in the land use task force, and his subcommittee is where many of the most interesting planning and land use topics have been explored.  As I noted, many of the subcommittee’s topics have been extensively discussed by the LUTF, and at Tuesday’s meeting, Chris gave a report on these topics.

The first concept Chris reported to the CHA committee yesterday was to consider a requirement that Moderate Income Housing (MIH) plans be adopted by ordinance by local governments, and that they must be adhered to in subsequent land use decisions (in the planning profession’s parlance, this is called a consistency requirement; that is, local land use actions and decisions must be consistent with an adopted plan). Part of the idea behind this is not just to try and make local jurisdictions take MIH planning more seriously and to actually implement it, but also that by making the adoption of the MIH plan the main policy and legislative action, any subsequent action by the local government, including rezoning, becomes administrative (implementing the adopted policy) and thus not subject to referendum. (side note – referenda are being increasingly seen as a major problem for land use actions, as evidenced by what goes on in California and increasingly in Utah, and there should be actions taken to deal with this threat.  Another example – the recent Affordable Housing Task Force exercise in Cache County identified referenda as one of the three major problems contributing to the housing crisis.  More on this a little later in this report).

Next Chris indicated that there should be more disincentives in place for those actors who do not comply with or take seriously the MIH planning and implementation requirements.  He noted the stipulation put in place by last legislative session’s HB462, which says that if the state Division of Housing and Community Development determines that a jurisdiction’s plans or implementation actions are not in compliance with the requirements of HB462, that jurisdictions can be disqualified from receiving state Transportation Infrastructure Funds or Transit TIF funds.  Chris suggested that a more impactful consequence would be the withholding of B&C road funds, for one.  He also noted the idea of amending the law to allow for those suing local governments not in compliance with state land use requirements, to be able to recover attorneys’ fees.

Chris then talked about building on last session’s bill which would require local incentives for retail development to also plan and provide for affordable housing, be extended to all economic development incentive programs.

Chris then wrapped up his report by noting ideas to look at ways to speed up the review and approval of development applications, and to develop uniform requirements for development engineering standards for public facilities like streets, sewer and water lines, etc.

Cameron Diehl, executive director of the Utah League of Cities and Towns, was then asked to respond to the items outlined by Chris in his report. Chris and Cam both noted that these ideas have been subjects of discussion for several weeks now by the Land Use Task Force, which includes representatives from both local governments and the development community, and there had been quite a bit of back-and-forth on them.

On the MIH plan consistency idea, Cam stated that the concept was still under discussion, that no agreement had been reached.  As to the idea of imposing additional “penalties” for non-compliance with MIH requirements, Cam suggested that the penalties put in place by HB462 haven’t had time to take effect yet, and it might be wise to wait and see how that played out first, that it might be enough to achieve the compliance desired.  The idea of additional requirements for including housing provisions for economic development incentives, he said, was one worthy of consideration but no agreement had yet been reached.

On uniform residential development public facilities standards, Cam pointed out that a working group comprised of local government and private engineers and public works builders was on-going and it appeared that some type of agreement looked likely to be reached soon.

In responding to the speeding up for development applications, Cam reiterated the “ripcord” provision currently in LUDMA.  He also brought up the issue of administrative actions on land use applications.  Many such applications, for things like conditional use permits, subdivisions, site plans, and others are put through a process similar to that for rezones and general plan amendments.  The state code is currently silent on how such applications are to be treated, and Cam noted that there appears to be agreement among the League membership that perhaps this process should be looked at for further definition on how public input should be handled and how the process should work.  This may then benefit housing affordability by making review of applications for housing developments more streamlined.

CHA co-chair Sen. Lincoln Fillmore expressed his hope that the subcommittee would soon come to agreement on actions to be considered, as he is due to report the CHA’s recommendations on what to do to the full UEOC, which is chaired by Governor Cox and includes House Speaker Brad Wilson and Senate President Stuart Adams, in November.  He then asked Cam if he felt it was true that cities and towns were much quicker to approve commercial development applications than ones for residential development.  Cam wisely answered that it all depended on the scale and type of the development.  But the question Sen. Fillmore was asking had to do with the incentives given to local governments by the rules the legislature had put in place over the years which provides more tax benefit to communities for commercial uses than for residential.  He then asked Cam if he could come up with data that might display this disparity in development approval timeframes.

Finally, the chair of the low income housing subcommittee, UTA Trustee Beth Holbrook, spoke up and indicated that if the desire was to make something actually happen legislatively that would better facilitate affordable housing, the issue of referenda should be looked at (I told you we’d get back to this!).  She mentioned that a large part of HB462 was devoted to the requirement for communities and UTA to develop station area plans around fixed-rail transit stations.  Part of this section of code includes a provision that if the plan is approved by a 2/3 majority of the governing body of the community, it is not subject to the referendum process (this is based on a provision in the state constitution that applies explicitly to the state legislature, but not so clearly to other legislative bodies).  Beth suggested that this provision should perhaps be considered to also be applied to the requirements for MIH plans and implementation.

Whew!  That is one long summary of what happened in this week’s CHA meeting.  If this is of interest to you, I’d suggest you take a listen to the discussions in the meeting itself, at this link https://www.utah.gov/pmn/files/890251.m4a.  The discussion I just report on starts at about 1 hour 12 minutes into the meeting.

Now, just an additional note – the LUTF has also discussed changes to the state annexation code.  There is an immediate fix that is being considered, for the definition of rural real property (which has been an issue in several recent annexation proposals).  Everyone has also generally agreed for years now that the annexation code is a mess because of frequent amendments and inconsistent policies and approaches.  A complete rewrite of the annexation chapter of the state code was agreed to (without any major policy changes, just a reordering and cleaning up of the code), which is being worked on now.  This may not be ready to go for the upcoming legislative session, but at least it is in process.  Whew!

Okay, that’s the major news.  There’s still plenty of other things going on, like water issues, short-term rental issues, etc.  As I learn more about these, I’ll pass them along as well.  I’ve gone on long enough for this entry.  See you again soon!

NIMBYISM NO RESPECTER OF… MONEY?

August 13, 2022

Atlantic staff writer Jerusalem Demsas, whom I’ve cited in previous posts, writes again about the nature and tone of public input in local land use and housing considerations.  In his most recent piece, The Billionaire’s Dilemma, he demonstrates that opposition to housing variety in neighborhoods certainly is reflected among those of higher income and social status, but also from those all across the political spectrum, both progressive and conservative.

Demsas’ story is about Silicon Valley billionaire venture capitalist Marc Andreesen, who was key to funding such start-ups as Facebook, Skype, Lift, Pinterest, Airbnb, and Slack, among others.  Not long ago, on his venture capital firm’s website, Andreesen posted an essay, It’s Time to Build, which expressed his opinion on how society in general appeared to be suffering a malaise in the aftermath of the coronavirus pandemic, and it was time to get going again, that things needed to happen, new things be built, in realms from health care and transportation to education and manufacturing – and, housing!  He says in his post:

You don’t just see this smug complacency, this satisfaction with the status quo and the unwillingness to build, in the pandemic, or in healthcare generally. You see it throughout Western life, and specifically throughout American life.

You see it in housing and the physical footprint of our cities. We can’t build nearly enough housing in our cities with surging economic potential — which results in crazily skyrocketing housing prices in places like San Francisco, making it nearly impossible for regular people to move in and take the jobs of the future.

He notes that the solution is, in all areas including housing:

The problem is inertia. We need to want these things more than we want to prevent these things. The problem is regulatory capture. We need to want new companies to build these things, even if incumbents don’t like it, even if only to force the incumbents to build these things. And the problem is will. We need to build these things.

Andreesen goes on to excoriate both sides of the political spectrum for their maintaining the status quo.  He says:

The left starts out with a stronger bias toward the public sector in many of these areas. To which I say, prove the superior model! Demonstrate that the public sector can build better hospitals, better schools, better transportation, better cities, better housing. Stop trying to protect the old, the entrenched, the irrelevant; commit the public sector fully to the future.

He concludes by calling out leaders and citizens:

Building isn’t easy, or we’d already be doing all this. We need to demand more of our political leaders, of our CEOs, our entrepreneurs, our investors. We need to demand more of our culture, of our society. And we need to demand more from one another. We’re all necessary, and we can all contribute, to building.

All this sounds very supportive of getting communities to revamp their regulatory frameworks and enable more needed housing to be built.  But Demsas points out that in practice, Andreesen (and, by extension, many other “progressive” citizens) don’t adhere to their own philosophy.

Andreesen lives in Atherton, California, right in the heart of Silicon Valley next to Palo Alto.  As befits the place where a billionaire lives, Atherton is listed as one of the most expensive zip codes in America.  Recently Atherton city officials, in compliance with California state requirements to address moderate income housing, submitted plans to the state Department of Housing and Community Development for adopting multi-family housing zoning overlays throughout the city.  As might be expected, the comments from city residents went nuts, including from Andreesen.  His comment?

Subject line: IMMENSELY AGAINST multifamily development!

I am writing this letter to communicate our IMMENSE objection to the creation of multifamily overlay zones in Atherton … Please IMMEDIATELY REMOVE all multifamily overlay zoning projects from the Housing Element which will be submitted to the state in July. They will MASSIVELY decrease our home values, the quality of life of ourselves and our neighbors and IMMENSELY increase the noise pollution and traffic.

This kind of hypocrisy generally displayed by NIMBYs led Demsas to conclude:

Andreessen intimately understands the arguments for increased housing production in thriving job markets such as San Francisco and the surrounding areas. He knows that failing to build housing has hurt the economic prospects of workers and families throughout the region. And he was incensed enough by this knowledge and its implications for the nation to write the aforementioned essay. But when the time came, he apparently opposed new housing in his backyard. The hypocrisy itself is galling, if informative. Andreessen might well support legislation upzoning neighborhoods across California. This macro-micro disconnect should push policy makers to grasp that they cannot reason with NIMBYs on a project-by-project basis. They have to eliminate NIMBYism’s veto power by moving decision-making to the state level.

Is it surprising?  Not really.  Is it the right solution?  Probably not, but it’s hard to argue for anything else when this is the narrative that’s out there.

BITING DUST, PART 2

August 10, 2022

Continuing on the theme from yesterday’s post, interesting story in today’s Trib about development approval processes in Washington County, where plats and other residential developments will need to have a water district sign-off before they can proceed.  Probably the more interesting part of this for those involved in land use approval processes is the procedure that will be followed here.  There have always been questions and differences in how to approach phased projects, how the approvals given early in the process apply some time (sometimes years) later for subsequent phases.  Here’s what the story says about the Washington County process:

… it would require developers to pay the impact fees on all the lots in a subdivision up front instead of one at a time as they build on them. While that additional cash outlay is not without pain, Young said it would discourage a run on the tap by nervous developers, who might otherwise take in enormous preliminary plats just to tie up all the water for future use.

Coordination between water providers and local governments that ultimately approve new developments to proceed forward is going to increasingly become a prime area of concern, in need of better coordination and cooperation.

Hoping to discuss all this at the ULUI Land Use Conference October 25.

ANOTHER ONE BITES THE DUST – LITERALLY!

August 9, 2022

So another one of Utah’s communities just imposed restrictions on development due to water concerns – Town of Newton puts hold on new water connections . This is getting to be a trend, and I think the numbers are only going to grow!  Other communities currently with water-based development moratoriums include Oakley, Henefer, and Wolf Creek (Weber County).  Others are considering it.

It’s certainly a way to put a halt to new development in town.  And with so many complaining about the pace and impacts of growth in our communities, well…

Utah state code and court rulings state and imply that temporary land use regulations or pending ordinances can only be in effect for a maximum of six months.  Some of these water situations are taking much longer than that to resolve.  Is that legal?

The upcoming ULUI Land Use conference will devote the Tuesday afternoon session to water and land use issues, including the imposing of development moratoriums.  Rob Patterson, Oakley City Attorney, and others, will address this topic, among others on the water front 😊.  Be sure to check out the latest info about the conference on this very website (see link headers above).

FULTON COMING TO FALL CONFERENCE

August 8, 2022

Great piece in the most recent issue of Governing about Bill Fulton’s new book, Place and Prosperity: An Urban Success Formula.  Bill Fulton is former mayor of Ventura, California; former San Diego Planning Director; founder and editor of California Planning & Development Report, and senior fellow at the Terner Housing Center at UC Berkeley. The subtitle to the story says,

Without both (place and prosperity), a new book argues, a community can’t achieve its highest purpose. Some cities and suburbs have managed to combine them. Most are finding it difficult.

Fulton will be one of the keynote speakers at the ULUI Fall Conference, headlining the Wednesday morning session on “What Is It About California that We Do Not Want Utah to Become?”  He has spoken to this topic before, so he’s no stranger to it.  In the Governing review of his new book, it talks about some of the problems faced by Fulton’s previous stomping grounds, which sound pretty similar to some of the issues we face here in the Beehive State as we deal with our rapid economic and population growth:

Southern California, his adopted home, was a rapidly built conurbation with “mile after mile of large-scale suburban subdivisions, punctuated by business parks and shopping centers, all connected by arterial roads that seem, by themselves, to be wider than some entire towns.” Its inhabitants were mostly prosperous. But the towns existed for decades without any real sense of place at all. Now many of them are struggling to create one.

Sound familiar?  Be sure to come listen to Fulton (and many others!), and discuss! at the conference October 25-26 in Sandy.

IT’S NOT MY FAULT!

August 4, 2022

A column in this week’s The Economist, How high property prices can damage the economy, confirms what I’ve been thinking for a while now, that high land and real estate prices may actually sap strength from the rest of the economy, as well as doing all the other stuff we regularly talk about (price out lower income people and families, exacerbate income inequality, slow down development, etc.)

The column examines recent research on the topic, and says:

The worrying conclusion is that high and rising property prices can also have damaging economic effects, by crowding out productive investment and leading to a misallocation of capital. In the most extreme cases, inflated land prices may already be the cause of a protracted slowdown in productivity growth.

Given Utah’s rip-roaring economy in recent years, is it possible that our outrageous housing prices will actually cause an economic slowdown, and not just because new workers can’t find affordable housing? Looks very possible.  Here’s how that would work:

…when (land) prices are rising, as they have in most places for much of the past few decades, the initial effect is to boost lending and economic activity. Households can use their increasingly valuable property to borrow at lower interest rates than they otherwise would. Land-owning firms, too, can access finance more easily.

But, rising property prices can also discourage productive lending, and lead to capital being misallocated. When housing markets boom, banks tend to engage in more mortgage lending. But because lenders face capital constraints, this is often accompanied by reduced lending to businesses. One paper, published in 2018 and looking at data from America between 1988 and 2006, found that a one-standard-deviation increase in house prices in areas where a bank has branches reduced lending growth to firms that borrow from the same bank by 42%. The total investment undertaken by the affected firms fell by 21%.

There’s actually a lot more to it than just this, as the column points out, but it’s certainly a part of things.  I think we’ve certainly had the upside to this boom here in our fair state.  Maybe the crash is coming, given this research and the rising fed interest rates in the campaign to tame inflation.

Oh, and lest you think that this all has little to do with our land use policies, the column also makes this observation:

Economists cared less about land in the 20th century. Since the turn of the millennium, however, they have increasingly debated the impact that restrictive zoning laws have on the economic output of cities.

Looks like now we planners may get some of the blame for a pending economic downturn as well!

TAKE ANOTHER LOOK…

August 1, 2022

This post will be short and “sweet.”

So we’ve heard a lot about the problems with getting new housing built, in large measure because of the rules and processes that are part of getting local government approvals for new housing, particularly for anything other than large-lot single-family homes.  So much so, that reports over the past several years have shown a substantial housing “deficit:” that is, not enough homes being built to meet the demand for new housing by growth in population numbers.  The solution, in part, has been mooted to be, get those local governments to reform their zoning and land use codes, those laggards!

Here’s the interesting part.  A recent story in the DesNews, What are the top 10 most stable housing markets? Here’s how Utah, Idaho rank, said this:

this week, CNBC ranked Utah No. 1 for having the most “stable” housing market, according to the outlet’s America’s Top States for Business study.

Interestingly, that didn’t mean the slowest rise in housing cost.  The ranking was based on a number of factors, including the number of new housing starts per 1,000 population.  Utah’s position in that statistic, indicating how construction of new housing is going?  Number 1!

Of the top ten states in the housing stability ranking, Utah’s new housing starts per 1,000 population in the last year was 12.2.  Compare that to such a regulation-averse state as Texas, where the number was 8.9.  Or Idaho, where it was 10.5.

So does that sound like a place where locals officials are stymieing new housing construction?  Hmmmm.  Doesn’t mean we couldn’t do better, but maybe we ain’t as bad as “everyone” says…

IT JUST DOESN’T END…

July 29, 2022

As more and more attention is being paid nationally to the crisis of housing affordability, local land use regulations and processes are getting a lot of the spotlight, along with the expected price drivers like the cost of land, materials, labor, interest rates, etc.

One of the latest in a national publication is Why Your House Was So Expensive in The Atlantic early this week.  The subtitle for the story is “Material-cost inflation, anti-building rules, NIMBY attitudes, and barriers to innovation have created a housing-affordability crisis,” but author Derek Thompson notes:

So the short answer to the question “Why is it so expensive to build a house in America?” is: There is no short answer. Housing costs are complex because nearly half the cost comes from local rules and preferences rather than just materials and labor.

Wow, half the costs, he reckons.  On the regulations side, Thompson does talk about zoning and rules that limit numbers and sizes of homes.  But he figures that something else from local jurisdictions adds even more costs:

The most significant and pointless factor driving up construction costs was the length of time it takes for a project to get through the city permitting and development.

Besides the local regulations that are in place that limit housing, Thompson then pays particular attention to the processes local governments have for getting new projects approved or the rules changed, which allow or call for public input.  He says,

Researchers sometimes call this phenomenon “citizen voice.” Because I’m fond of both citizens and voices, I don’t like this term. I prefer vetocracy—rule by veto—which is Francis Fukuyama’s phrase for systems that empower minority objectors to stop anything from happening. Local vetocracy sounds appropriately vomitous to describe this situation.  Local vetocracy is expensive in two ways. It not only limits the supply of housing but also raises the cost of building.

Just as many housing rules are mildly defensible in isolation, you might say there’s nothing wrong with people offering feedback on construction that will affect their neighborhood. Isn’t this just democracy in action? Well, no. Democracy is government by the people—all of them. By contrast, local vetocracy is government by a very small group “yelling loudly with [their] lawyer on speed dial.”

Thompson sums up this situation thus:

When you turn over governance to the most litigious shouters, you implicitly allow older and richer homeowners to block construction for younger, poorer renters. That’s not a recipe for housing abundance. It’s a recipe for the status quo.

Watch out, folks, the knives are sharpening.

OH GIVE ME A HOME WHERE THE TOURISTS DON’T ROAM…

July 27, 2022

Conversion or construction of homes to be short-term vacation rentals continues to be a big issue around the state.  A couple of legislators promised to make this a topic of priority for them for the next legislative session, and there is apparently a working group tackling it.  Communities around the state, but particularly those that have a tourism focus (Springdale, Moab, Park City, Brian Head, and even neighborhoods near the entrances to the ski resort canyons) have made noise about this.  Even Gov. Cox has expressed concern over the issue, saying,

 “(this) is something we haven’t had before. … This is a new phenomenon,” Cox said. “We’re taking houses, and we’re turning them into hotels. … That’s housing stock that now isn’t being rented to families or available for purchase by first-time homeowners or others.  I’m a private-property-rights person,” he said, adding, “I don’t like to tell people they can’t do those types of things with their property,” but Cox also called short-term rentals “an issue we need to talk about more” in dealing with the state’s housing crisis.

No question, short-term rentals are a significant part of the housing stock in tourism communities, but how much of an impact are they really having, both in those communities, and around the state?

A recent piece in the DesNews by Lee Sands of the Libertas Institute seems to shed some light and perspective on STRs.  Sands says,

The impacts of a measure like banning short-term rentals statewide, would provide a maximum of 17,236 new total housing units to the state — or 1.6% of the current total housing units. This many homes entering the market would increase supply and undoubtedly apply some downward pressure on prices where short-term rentals are concentrated. However, the positive effects on the housing crisis would be temporary (and relatively minor).

He also points out that in resort communities, STRs are generally high-end housing, not affordable ones.

These resort areas feature homes, of virtually any size, at prices well over $1 million. Restricting short-term rentals (more than they already are) in these areas would do practically nothing to provide affordable housing stock. The reason is simple — practically none of the homes being used as short-term rentals, if converted to long term rentals, would be affordable under any definition.

The better way to address the issue, he says:

For example, if resort towns and counties want more affordable housing, lawmakers should consider reforming the zoning laws that prevent the construction of duplexes, small courtyard apartments, or other housing referred to as the “missing middle.” Other barriers to supply, such as unnecessarily large minimum lot sizes and difficult permitting processes, are also worth serious examination.

The issue of STRs will the be subject of a session at the upcoming APA Utah annual conference in Lehi.

THE SINS OF THE FATHERS

July 24, 2022

Since I’m writing this on a Sunday and the day of the founding of Salt Lake City by Mormon pioneers, I thought i should maybe include some Christian scripture in today’s post.

There’s a well-know saying, taken from several similar verses in the Old Testament, that says,

visiting the iniquity of the fathers upon the sons to the third and fourth generation…

While I was hoping this maxim would not apply to the newer, younger generation of homeowners in our communities, it appears that that sentiment may be unrealized (sigh!)

Jerusalem Demsas, writer for The Atlantic, last week had a piece published titled The Next Generation of NIMBYs.  The subtitle was more telling:

Younger buyers who sunk their savings into new homes have too much to lose.

Data seems to show that, for the last couple of years:

First-time homebuyers are the major driver of the increase in demand. In 2021, Freddie Mac financed 554,000 loans for first-time homebuyers — up 22% from 2020. That’s the highest level since tracking began in 1994.

And where is that demand coming from?

The reason behind the higher demand is simple — it is all about demographics. The large cohort of Millennials that first entered the job market in the mid-2000s is now in their early-to-mid-30s — the typical age range of first-time homebuyers.

Younger people!  More liberal, progressive types!  We’ve known for some time now that NIMBYs, those that show up at meetings opposed to new development, are generally older, white, male, single-family homeowners (hence my letting pass without comment the scripture reference to fathers and sons).  So now, that may be changing!  There was even a piece written about that not long ago that I posted about.

But Demsas (who wrote the piece a few months ago that I stole the title of for my upcoming conference sessions, Community Input Is Bad, Actually) thinks that because, for a variety of reasons, Millenials have more of their net worth tied up in these new homes, they will follow right along with William Fischel’s Homevoter Hypothesis and oppose any new development they perceive might negatively affect their home values.

Well, but they’re younger, more progressive, more attuned to social justice.  So this won’t hold, right?  Hmmm.  Once again, there’s a pretty good body of research that shows that opposition to density and new development is no respecter of political ideology.  See the following:

Where Self-Interest Trumps Ideology: Liberal Homeowners and Local Opposition to Housing Development

Both liberals and conservatives are NIMBYs, especially if they own their home

See Exodus Chapter 20.

IT’S TOO LATE – IT’S ALREADY HERE!

July 21, 2022

Well, I keep putting up posts saying that the nationwide trend of zoning reform is coming, it will be the case of the irresistible force meeting the immovable object, that resistance is futile…  There are plenty of examples of states and cities around the country that are making the moves, everything from making ADUs by-right uses in all residential zones to elimination of exclusive single-family residential zones, just google zoning reform and you’ll get a bunch of references.

Hold the presses, gang.  It’s no longer a matter of when, but… it’s here in our fair (but great!) state, now!

Yeah, yeah, I hear some of you saying, we know, the legislature made ADUs by-right permitted uses in many (but not all!) residential zones in many (but not all!) local governments around the state.  And yes, that sort of qualifies.

But the one thing that has sort of been flying under the radar is Salt Lake City’s initiative that has been underway for some time now, called Affordable Housing Incentives.  Unlike the many other such efforts around the country I mentioned earlier that are getting national media attention, this one isn’t so much.  It’s kind of baffling why not.

It certainly isn’t because it’s not like other “zoning reform” efforts elsewhere.  This one would, according to the planning division’s staff report, among other things,

allow townhouses, 3-4 unit buildings, and cottage developments on properties that are currently zoned for single- or two-family homes and are located within 1/4 mile of high frequency transit or are located adjacent to arterial streets. Permit twin and two-family homes in these zoning districts where they are not currently allowed.

The city’s Planning Commission held a hearing on the proposal on May 11, and as you might expect, it attracted a lot of comment from the public, most of it negative.  Interestingly enough, however, it seems that the reaction was negative from both sides!  There were those who opposed it because of the perceived negative impact to single-family neighborhoods (expected), but also those supportive of allowing more affordable housing were critical of the proposal, largely because they think it doesn’t go far enough.  An excellent story in the City Weekly summarizes the controversy pretty well – Street Fight Everyone in SLC says they want more affordable housing—until the city plans to put it near them.  The story describes well the pushback from the various neighborhood councils throughout the city (boy do I remember in my days at the city going around to the various groups trying to get buy-in for the first attempt to allow more ADUs in the city – wow!)

critics of the plan decried a future where traditional homes could be torn down and replaced with duplexes and triplexes. Speakers claimed this incursion would unleash troubles ranging from water shortages to depressed property values to cheaper construction methods.

On the other side of the ledger,

the reason some renters’ and low-income housing advocates like Wasatch Tenants United and Crossroads Urban Center oppose the plan—is its definition of “affordable.” In its current form, individuals earning at or below 80% of the Area Median Income (AMI) would pay rent no greater than 30% of their take-home pay.

The Planning Commission voted to table the proposal at the May 11 meeting to allow staff time to consider the comments and make possible modifications.  It will be back.

So the zoning reform “wave” has indeed reached us here in quiet little out-of-the-way Utah.  The Incentives proposal is by no means the only one – a piece in Building Salt Lake summarizes the various policy changes making their way towards consideration by the city’s decision makers – Downtown heights, affordable housing and ADUs. A policy wave is about to hit City Council.

And just to put another cherry on top of the ice cream pile of national zoning reform flavors, the American Planning Association’s President-Elect, Angela Brooks, just put out a statement calling for planners nationwide to take the lead in zoning reform efforts in their communities.  She says in part:

With movement on reform across all levels of government, planners will never have a better chance to influence local, state, and federal policies that so directly affect the housing work we are uniquely positioned to lead. As your president-elect, I look forward to advocating for locally driven reforms that meet the unique needs of our communities.

Zoning reform has, indeed, become a national cause, and is now here too.

SAY THAT AGAIN?

July 19, 2022

I’ve been pushing some of the sessions coming up this fall in land use conferences that are dealing with topics I’ve been addressing in some of my blog posts.  Let me do so for another one.

I’ve been ranting a bit about the role of the public in land use processes (see May 9, 10, 12, and July 12).  It continues to amaze me the arguments that normally rational citizens bring up in land use hearings.  This one from a recent hearing in a Wisconsin town, where a proposed senior and workforce housing project (only a total of 50 units on what appears to be a pretty good sized property) was being reviewed for compliance with local development standards.  The argument made to turn it down, in addition to overburdening the roads, schools, law enforcement and hospitals, was this one:

The petition states that a high concentration of year-round residents within 200 feet of a retention pond built by and maintained by the city presents problems for all parties, including drowning, toxic algae, wildlife feces, mosquitos and rodents, expensive maintenance liabilities relating to to storm water infrastructure repairs, ground water contamination due to the high water table conditions at this site, and a high incidence of cancer in the community.  The housing project will hasten the demise of the retention pond with the added runoff and pollutants, opponents claim.

With this having been an administrative item, the board reviewing the project could very well have dealt with these claims by asking, “where’s the evidence?” Such incidents point toward the concept of perhaps stipulating rules of procedure for administrative land use hearings.

It’s a little different for legislative land use actions, such as general plan amendments and rezones.  For these, opinion is fair game.  Still, there needs to be some rational basis for the arguments being made.  Here’s a comment from a citizen in a rezone hearing recently in a Utah community where the proposal was for rezoning a property from agricultural to residential allowing lots down to 14,000 square feet (not high density by any means!), in an area that featured mostly half-acre lot size zoning:

“I’m steadfastly opposed rezoning 5 units onto the property. First, because the density is far greater than the rest of the neighborhood, and second – it cracks the door to eventually giving me 100 new next-door neighbors. When you carve-up this tract, it sets a precedent for the cow pasture to be carved into 50 or 100 units. Please preserve the character of the neighborhood dozens and dozens of families have invested in financially and personally.”

Now look, I know this is a legislative, opinion-based hearing, but…  really?  “…density far greater than the rest of the neighborhood…”?  I guess it is about twice as dense, but going from 2 units to 4 units per acre…  Wow.

If this topic tickles your interest, be sure to attend both the APA Utah Conference and/or the ULUI Land Use Conference, where each will have a session on public input in land use processes, and possible standardization of such hearings.

WATCH OUT, IT’S GOING TO BLOW…!

July 15, 2022

I’ve noted a number of times now how the housing affordability issue, and the perception that local land use policies and regulations (single-family zoning, parking requirements, design standards) have worked up into the mainstream social- and media-consciousness, to the point that there will be pressure to do something, anything!  Cities and states around the country are taking actions, while there has been some limited and measured response in Utah.  I’m pretty sure it hasn’t been enough, as the pressure continues to build.

As evidence – here are several more pieces from national and local media aimed directly at this, even to the point of where, when my wife saw one of these, she said, “isn’t that what you work on?”  Yes, indeed!  And Susie is, for me, the canary in the coal mine – if she’s noticing, well, it has definitely gone mainstream.

On National Public Radio’s Morning Edition yesterday: How To Solve the Nation’s Housing Shortage

Maybe the biggest thing, he says, is states and towns desperately need to change their zoning rules. Back in Atlanta, Ernest Brown heads up the local chapter of a nonprofit called YIMBY Action.

Brown says in many places, we still have outdated zoning rules that allow for some big apartment buildings downtown, surrounded by single-family homes on big lots but nothing in between, like townhouses or smaller starter homes closer together that are more affordable. Brown hears people complaining all the time about not being able to afford a house. He tries to get them to go to zoning meetings and call their representatives.

On our own local Radio West program yesterday: America’s Zoning Problem

City planner Nolan Gray argues that zoning has failed to address the most basic concerns about urban growth, exacerbating housing shortages, worsening racial and economic segregation and making us even more car-dependent. In a new book, Gray explains what zoning is, where it comes from and says that if we want to improve our cities, we need to re-evaluate zoning policy and possibly even scrap it altogether. Gray’s book is called “Arbitrary Lines” and he joins us to talk about why zoning is actually pretty interesting, especially if you care about where you live.

On Utah State University’s Utah Public Radio last week: Cache County addresses housing crisis in new report

Solutions on the state level include limiting what cities and counties do with their zoning, but there is still a more drastic solution Zook and his task force have identified.

“One specific recommendation was that they limit local referendums. That indicates a significant issue. But it’s unfortunate that it’s gotten to this point where a task force is recommending extreme action, like the state coming in and telling people what they can and cannot have in their community. But the only reason that’s happening is because too many communities are not allowing growth, they’re not allowing growth to happen. And that’s causing a problem that’s causing a problem in our community, because there’s not enough housing.”

In The Montana Free Press yesterday: Gov. Gianforte announces housing affordability task force

In a release announcing the task force’s creation, the governor acknowledged that housing has been a long-term affordability issue for Montanans and blamed the state’s housing shortage on burdensome regulations.

“Owning a home is part of the American dream, but for more than a decade, it’s become harder and harder for Montanans to afford to own or rent a home,” Gianforte said in a statement. “Burdensome, restrictive, and unnecessary regulations have left Montana with a longstanding shortage of housing that continues to drive up the prices Montanans pay for their home.”

It’s gonna blow, folks.  The question just is, in what manner, what will the “damage” be, and how do we maybe channel it in positive directions instead?

IT’S THE WATER, THE WATER, THE WATER…

July 14, 2022

I have to start off by maybe making many of you aware of the backstory behind the title of today’s blog post – it comes from a ditty sung to a TV ad in the 60s for Olympia Beer.  It was so pervasive, it came to mind when I was thinking about what water-related tone I could use for the title of today’s post.  Some things never fade away.

As we are all painfully aware, water is becoming a bigger issue by the week in our fair state, especially for future growth.  We have plenty of new residents showing up in our communities every month, who all need housing and community services.  Do we have enough water for them?

As much as I’ve been calling this the Year of the Planner because of all the land use and planning requirements that were put in place this year by the state legislature, it could also be called the Year We Had to Figure Out Our Water Situation.  A bill was passed by the legislature that added a required new element for city and county general plans on water use and preservation (SB110 – Water As Part of General Plans), which must be prepared and adopted by the end of 2025, as well as several other water planning requirements at the district and state levels.  The legislature also appropriated $300,000 to assist local governments with these newly required plan elements on water.

The growing importance of this issue is amply demonstrated by all the attention and assistance that is being generated.  National APA just published a piece in the latest issue of Planning magazine showcasing a number of resources they have collected to assist in water planning efforts – Integrating Land Use and Water Planning for a Sustainable Future.  The story includes links to pertinent sites like Incorporating Water into Comprehensive Planning from the Lincoln Institute of Land Policy.

Additionally, the state Division of Water Resources working with the Babbitt Center for Land and Water Policy and Western Resource Advocates are sponsoring a Utah Growing Water Smart workshop this November.  Local governments can apply to be part of that workshop here – applications are due by July 29.

And don’t forget, the Utah Land Use Institute will have water and land use planning as the focus of the Tuesday afternoon plenary session for the annual Utah Land Use Conference on October 25.  The APA Utah fall conference will also include sessions on this file:///C:/Users/Owner/Downloads/APA-fall-agenda-2c%20(4).pdf

Now get swimming!

SPIN CYCLE – OVER AND OVER AGAIN

July 12, 2022

Two recent stories in the Trib served to put an exclamation point on the push I and some others are making to try to codify some parameters for public input on land use deliberations at the local government level (see May 9, 10,12 and subsequent blog posts).

Yalecrest neighborhood leader takes on U. profs over housing plan

Rezone for Avenues ‘cottages’ gets thumbs-up despite heavy neighborhood pushback

These stories just confirmed to me again the issues that exist with the policy and administrative proccedures in our local government land use processes.

The first story is more about the contentious “debate” between neighborhood residents and others over the city’s proposed affordable housing overlay, which could create incentives for new, denser housing construction such as fourplexes and backyard cottages in many of those areas.

It started with a flyer circulated online in advance of Thursday night’s talk, which took a negative view of the overlay and its potential impacts on neighborhoods long reserved for single-family homes. … The flyer asserted, among other things, the incentives to developers could “permanently change” those neighborhoods.

The entire effort has been subject to intense public opposition (see May 16 blog post), which has again been reflected by the second story about the Avenues cottages.

In the Avenues proposal, Ivory Homes, Utah’s largest homebuilder, has sought to convert 3.2 acres at approximately 675 North F Street from a long-standing foothills residential zone, requiring quarter-acre home lots at a minimum, to a special development zone, allowing lot sizes of less than half that span.  The project would consist of 19 single-family houses, including five that would be custom-built. At least 14 of the homes would have built-in accessory dwelling units, or ADUs.  Ivory has described the project as, among other things, an experimental demonstration of using denser construction with pre-built ADUs as a way to add more dwellings per acre for a city with a major affordable housing shortage.

According to city documents, the zoning change would effectively change the site from “very low density” to “low density.” With roughly 10 dwellings per acre, the property would be more densely built than surrounding blocks in the upper Avenues, but in keeping with or below per-acre densities on many of the neighborhood’s blocks south of Seventh Avenue, judging from city maps.

Yet few housing projects in recent years have drawn the organized opposition this one has.

Neighbors worry about additional traffic and street safety, parking problems, loss of green space, air pollution, wildfire dangers, compressed setbacks from surrounding homes and the notion that the project would be incompatible with the prevailing character of the Avenues, one of the city’s oldest and more affluent neighborhoods.

Nearly 60 residents testified Wednesday on the proposal, with only a handful in favor. Two organized community groups have also weighed in against Ivory’s plans.

“We understand the city’s housing shortage and are prepared to accept a reasonable increase in density on this lot,” said Peter Wright, with Preserve Our Avenues Zoning Coalition, which has sprung up to battle the rezone.

“However, what Ivory has proposed is not reasonable,” Wright said. “It’s not even close to reasonable.”

If you’ve read the stuff I’ve posted about this kind of opposition previously, you’ll see that this falls right in line with a pattern apparent all across the nation for many years now, something which many commenters say has had a big role in creating our current housing affordability crisis.  And the fact that this is so strong in the two wealthiest neighborhoods in Salt Lake City?  Well, here’s a recent statement in a story in a Bloomburg City Lab piece (Does the White House Need a ‘Zoning Czar’?):

Balancing America’s lopsided housing markets — where wealthy neighborhoods block new housing while poorer places shoulder churn and displacement — means rethinking the codes that allowed these patterns to take hold.

Be sure to attend conference sessions about the role and character of public input in land use processes at the upcoming APA Utah Annual Conferencee and also at ULUI’s Annual Utah Land Use Conference in October.

IT’S GOING TO GET WORSE BEFORE IT GETS BETTER

July 7, 2022

My May 23 blog post was all about issues with water in dealing with new growth.  The tone of that posting was echoed by a story in the Trib last week

https://www.sltrib.com/news/environment/2022/07/04/building-booms-wasatch-back/

Trib writers Leia Larsen and Jordan Miller highlight the issues in some of the same communities noted in the blog post, with more details and anecdotes.

On the north end of the Ogden Valley, Wolf Creek Resort has taken more extreme measures. The water provider is in the second year of a moratorium on new construction because its wells are on the verge of running dry. Rumors fly of wealthy landowners growing impatient while they wait to break ground.

Wolf Creek attempted to ease the pressure by drilling a deeper well. It started pumping, only to cause a spring Eden Water Works depends on to stop flowing.

“It’s getting drier, the weather’s doing crazier things, and we keep allowing the building,” said Robert Thomas, the general manager at Wolf Creek. “You can only pump so much out of the ground and you’ll have issues. We’re starting to see it. We’re just the first ones.”

They also write about Oakley and Henefer, which have both put in place development moratoriums because of water shortages.

Water managers have placed their own moratoriums on buildings requiring new hookups — Henefer since 2018, and Oakley since last summer — to ensure they have enough water for current needs instead of squeezing that capacity for new developments amid the statewide drought.

“It’s not something we’d like to have,” said Henefer Mayor Kay Richins. “Some people think we’re trying to control the growth by having a moratorium, but that is not the truth.”

What to do?  While not intended to produce definitive answers but rather provide information and engender discussion, this year’s Utah Land Use Conference, organized by the Utah Land Use Institute, will take on this most critical of growth topics. The conference will be held October 25-26 in Sandy (see Conference page on this very website).

The focused Tuesday afternoon opening half day will be all about water. Issues to be covered include new requirements for local water planning, moratoria on development due to water supply shortages, pending water legislation, the future of the Great Salt Lake, and other related topics.  Presenters and panelists will include water managers, water attorneys, municipal attorneys, local land use planners and managers, state water planners and managers, and others directly engaged in this most important of growth issues.

Be sure to join us in October

THE WISDOM OF THE CROWD

July 6, 2022

There was an interesting story last week in the Ogden Standard-Examiner newspaper, titled Ogden Valley Planning Commission comes under scrutiny as growth booms.  The story was about the makeup of the membership of the Ogden Valley Township Planning Commission, under the jurisdiction of Weber County.  The Ogden Valley, home to Pineview Reservoir, Snowbasin and Nordic Valley ski resorts, has been under substantial growth pressures.

The story piqued my interest for a couple of reasons – first, it is the body which until recently included the state legislator who in the last year or two has become the go-to guy for land use issues at the state legislature, Steve Waldrip; and second, it rang a bell about the presentations I’ve been giving at conferences for several years about how small groups, like planning commissions, make decisions and how to do it better.  I’ll explain.

The news story features a couple of letters written by an Ogden Valley resident, Kay Hoogland, to the Ogden Valley News about those who are on the planning commission:

 In her view, the planning commissioners — gauging by their professional backgrounds — are skewed too heavily to the interests of builders and developers, and therefore aren’t representative enough of the broader population.

Shanna Francis, one of the members of the OVPC who is also the operator of the Ogden Valley News (and who has an urban planning minor from the U. and worked for a short time at the Ogden City planning department), noted:

…the heavy representation from developers and the construction industry on the body. But that’s not the only thing — she also notes the lack of women and people of color.

I was able to get access to the letters Kay Hoogland wrote, and they are generally about the conflicts of interest she sees of those appointed to the OVPC, which is a debate I’m not particularly interested in getting into the middle of here, but she does emphasize in her letters that, in her opinion, a more extensive outreach to the community might have broadened the pool of potential PC members:

“It would have been easy and consistent with past practice to post the recent opening in The Ogden Valley News, but the county did not. It would have been easy to announce the opening at a Planning Commission meeting, but the county did not.

“Such outreach would have resulted in a larger pool of applicants who are longer-term Valley residents, not involved in either development or the construction industry and with greater knowledge of the Valley.

“The pool also might have brought a broader skill set to the table, instead of more building industry occupants. There might even have been a female applicant or two (currently, 6 out of 7 commissioners are male, although it has been reported that about 50% of the Valley is female).”

My interest in this debate is about the makeup of our planning commissions.  For years now, I have given a presentation on the group decision making process, such as for planning commissions, and how that process can be improved.  One of the aspects driven home from all the social science research I saw on this was that diverse groups make better decisions that uniform ones.  Get your group to have a diversity of experience and background, culture and identity.

Over the course of my career, I have often heard mayors say, “I need to appoint people to the PC who have backgrounds in land use and development.”  Actually, I say, no, that’s not the answer.  All the research says it’s better to have a PC made up of a soccer mom, a businessman, a retired school teacher, a renter(!), and one or two realtors or builders.  Group diversity is the better way to go, it gives a better representation of the views of the entire community.  This runs somewhat contrary to the statement made by one of the OVPC members, who said:

“It makes sense to have people in the industry,” he said. “It wouldn’t make sense to put a poetry major on there.”

Actually, that poet, if he/she is interested and willing to serve, is just who we should be looking for, among many other backgrounds.  In fairness to those being pummeled by these letters and the news story, the response has been,

“We’re definitely not trying to stack the development commission. We like diversity,” said Rick Grover, director of the Weber County Planning Division.

Much of the criticism against having development industry people on the PC is that they give blanket approvals to development applications.  In truth, for administrative matters (subdivisions, conditional uses, site plans, etc) it really isn’t a factor.  The Weber County staff and a couple of the OVPC members correctly noted,

…planning commissioners have limited leeway to act. Planning commission members must determine  if they agree with recommendations from the Weber County Planning Division staff and whether development proposals comply with land-use law.

It’s when the PC does its real planning-related functions, like amending the general plan or recommending on rezones, that the diversity becomes more important.  But for these kinds of actions, the ultimate decision-makers are the elected officials.  The PC members just recommend, they don’t decide.

Power to the people!

PORT O’ CALL

July 5, 2022

The Utah State Supreme Court handed down its ruling last week in Salt Lake City’s suit against the Inland Port Authority. One of the main aspects of the suit was about usurpation of the city’s land use authority, delegating it to the Port Authority.

Salt Lake City was challenging the legislature’s ability to override the local land use regulations by stipulating that the city’s zoning code

“shall allow an inland port as a permitted or conditional use,” and that “the transporting, unloading, loading, transfer, or temporary storage of natural resources may not be prohibited on the authority jurisdictional land. “

The city was basing its challenge on two points – first, that the legislation was treating the city differently from other cities in its same class. The state constitution has the following provision:

The Uniform Operation of Laws Clause requires that ―[a]ll laws of a general nature shall have uniform operation. UTAH CONST. art. I, § 24

The Court essentially disposed of that argument by saying that the legislation creating the Inland Port Authority created a new classification – those communities with port authorities and those without. Those in the class with a port authority could be treated differently than those without one, as long as all in that class are treated similarly.

The second argument was that the port authority legislation violated the Ripper Clause of the state constitution. The Ripper Cause states

[t]he Legislature shall not delegate to any special commission, private corporation or association, any power to make, supervise or interfere with any municipal improvement, money, property or effects, whether held in trust or otherwise, to levy taxes, to select a capitol site, or to perform any municipal functions. UTAH CONST. art. VI, § 28

In this case, however, the Court said that the legislature’s actions

do not delegate power to any outside group or entity. … Here the legislature is not entrusting UIPA with the task or responsibility of enacting certain zoning ordinances. … These are legislative mandates directed at municipalities.

They are not a delegation of municipal land use authority, which is what I figured when I first heard about the suit. The legislature giveth zoning authority, and it can taketh it away, or at least stipulate what local governments can and can’t do with it.  Its decision to create a port authority and stipulate that the municipalities where it is located must in their zoning provisions allow for its activities is entirely a discretionary legislative act, which must be justified as being the in the public interest and provide for the public benefit.  As Craig Call so ably states in our land use training seminars, this is a very low bar to clear, and the courts will stay out of this arena as it is clearly a legislative decision, not a judicial one.  The court in this case said about the inland port act:

The Act‘s ―statewide public purpose‖ is ―to maximize the long-term economic and other benefit for the state.  UTAH CODE § 11-58-201(3)(a). Economic studies underlying the Act projected that an inland port could create thousands of jobs, develop natural resource extraction industries, and make Utah a bigger player in the global economy.4 These are legitimate objectives. And the classification is reasonably related to furthering them—by clearing the way for the port by requiring these cities to ―allow an inland port‖ and preventing them from prohibiting activities necessary to operate it. UTAH CODE §§ 11-58-205(5), -205(6).

You can read the entire ruling here https://www.utcourts.gov/opinions/supopin/Salt%20Lake%20City%20v.%20Inland%20Port%20Authority20220629.pdf

THAT STINKS!

July 1, 2022

More signs of the growing pressure to do “something” about housing affordability, this time from right in our own backyard – Utah Foundation’s just released 2022 Community Quality of Life Index   https://www.utahfoundation.org/wp-content/uploads/rr802.pdf

The big message from the survey is that overall satisfaction among Utahns of quality of life is down, and it appears that growth related issues are the drivers of this downturn.  The number one concern?

Housing and other living costs have the largest decrease in assessed performance. Utah’s rapidly rising housing costs have made many Utahns feel like rents and ownership are no longer affordable.

In addition to inflation, the other top factor to decreased life satisfaction is traffic and road conditions, which likely means there’s more traffic, congestion and delays.

Here’s the list of all the factors that showed decline in satisfaction:

• The availability of good housing that is affordable.

• The affordability of living costs other than housing, such as food, utilities and

services.

• Traffic conditions on the roads and highways.

• The availability of recreational, social or cultural events and programs.

• The quality of the public schools.

• The availability of quality education beyond high school such as good trade schools, colleges and universities.

• The availability of good stores or other places to get the food and other things people want and need.

• How much people support and help each other.

• The availability of quality public transportation such as buses or trains.

• The availability of spiritual or religious activities or groups.

• How much people share similar values or views of the world.

• The availability of quality healthcare services.

• Opportunities for good jobs.

The report makes this assessment:

One possible explanation for the decline in the majority of factors from 2018 to 2022 may be after-effects from the pandemic. The decline may also be due in part to ripple effects from Utahns’ increasing costs of living. Rapid growth may also be revealing its downsides. A recent survey from Envision Utah suggests for the first time that more Utahns would prefer to slow rather than foster the state’s population growth (with 45% agreeing to some extent that “growth is bad and should be limited” compared to 38% agreeing to some extent that “growth is good and should be fostered”).

I don’t think this is something that our political leaders can ignore for much longer.

HOME, HOME ON THE RANGE

June 27, 2022

In April, Cache County Executive David Zook organized a countywide Housing Task Force to address the housing affordability crisis in the Cache valley.  https://cachevalleydaily.com/news/archive/2022/04/21/county-executive-zook-kicks-off-the-first-meeting-of-housing-task-force/#.YrmuKC9MGf0

The task force was led by former Providence mayor John Drew and Cache County Economic Development Director Shawn Milne, and included public and private sector players such as business people, realtors, builders/developers, local and state elected officials, and educators.

Last Thursday, at the Cache Valley Summit, the task force reported its findings.  https://www.cachevalleydaily.com/news/archive/2022/06/24/david-zook-reveals-recommendations-of-house-crisis-task-force/#.YrmyUS9MGf0

As noted by Zook,

“I had hoped they’d find a magic bullet. But no such luck.”

The recommendations included many of the things found by other places in addressing this critical issue.

“We need to change the minds of the people of Cache Valley about growth,” according to Paul Davis, a business outreach/special projects coordinator for the Bear River Association of Governments.

The report first presented the facts around the problem, summing it up by saying,

“We have an extreme shortage of available homes across most socio-economic levels.  Most residents here could not afford to purchase the home they live in, given today’s market prices and household income.”

So, how to solve it?  Not easily.

The members of the task force concluded that we do not have a free market for housing.

“Members of the public push the idea that any density higher than (that) in their neighborhood will depress property values. More than half a dozen studies refute that notion and several point out statistically significant increases in property values.”

But, the task force report continues, the threat of ballot referendums reversing zoning decisions make for timid council members and uncertainty for landowners.

Interestingly, I’m hearing this concern more and more in recent months, about the shadow that the threat of a referendum casts over local land use debates.  Even Governor Cox mentioned it last month in his monthly news conference when he talked about growth and housing.

The conclusions of the task force thus emphasized this, among some other recommendations:

The panel’s top three recommendations are things that are readily doable.

At state level, lawmakers need to limit zoning decisions by voter referendum. Zoning reforms also need to take place at county and city levels.

They also suggested that the county and cities need to coordinate their planning for growth.

Finally, the task force recommended a public education campaign with an emphasis on reaching younger people who are close to or at home-ownership life-stages.

Seems like the public education campaign should be aimed at existing single-family homeowners, would be my thought.

I think we’ll see more initiatives like this coming soon around the state, coming soon to a neighborhood near you!

WHISKEY’S FOR DRINKIN’, AND WATER’S FOR FIGHTIN’!

June 23, 2022

Yesterday, the website ProPublica published a story (jointly with the Trib) on machinations in this year’s Utah legislative session about water.  ProPublica describes its mission as “… expos(ing) abuses of power and betrayals of the public trust by government, business, and other institutions, using the moral force of investigative journalism to spur reform through the sustained spotlighting of wrongdoing.”  The story includes some of the behind-the-scenes activity behind HB282 – Water Wise Landscaping Amendments, which created a new section in LUDMA dealing with this topic.

The title of the story is Utah Officials Called It the “Year of Water.” Special Interests Still Resist Conservation.  While the descriptions of some of the things that went on during the session as this and other bills were under consideration ring true, I don’t particularly agree with the writer’s characterization of them. The Utah League of Cities and Towns particularly gets a battering.  In the part of the story talking about HB282, it says:

“We recognize in Utah in a lot of ways we’re behind what Colorado and some of our neighboring states have done, and we as a state are focused,” said Rep. Gay Lynn Bennion, a Democrat who worked on turf legislation this session.

But internal communications suggest Utah is stymied by politicking, with groups such as the Utah League of Cities and Towns, which lobbies on behalf of municipalities, fighting against aggressive policy.

Rep. Raymond Ward, a Republican, proposed a bill to prohibit municipalities from requiring grass lawns. In January, he told ProPublica his idea ran into early opposition from the league, “who I knew would be the chief opponent because it impinges on what they think is their birthright, which is zoning,” he said.

Ward tweaked his proposal to assure the league that the bill wouldn’t get in the way of municipalities’ beautification ordinances. The group toned down its opposition, Ward said, but lobbyists from homeowners associations continued to attack and the bill failed.

A similar turf law did pass — one endorsed by lobbyists from municipalities and water districts — that Ward described as a “watered down version” of his bill.

The story goes on to suggest that League officials were more concerned about keeping local control of land use than they were about the main issue at hand, water conservation.

Wilcox (the bill sponsor) met with Lee (Justin, the League’s government relations director), the water district and several towns, and later that week he sent Lee a proposed bill substitute. “Please Review,” Wilcox wrote. Lee responded to the legislator, “This is exactly what we were looking for.” Wilcox introduced the substitute, and Lee showed up to support the bill, which had been changed to keep most decision-making on landscaping with local municipalities.

The Utah League of Cities and Towns has opposed turf bills for years. In 2016, then-Sen. Scott Jenkins, a Republican who was upset that a local ordinance compelled him to plant a lawn around his plumbing wholesale warehouse in Orem, filed a bill to curb such mandates. Jenkins told ProPublica that the league doomed the bill.

“Considering the fact that we’re hurting for water right now, especially in Utah and in the West, that’s just so dumb to do,” Jenkins said. “They ask us to not turn our faucets on or shut them off when we’re brushing our teeth, but they’re just flat out wasting water here.”

The league’s position statement on that year’s legislation noted that Jenkins did not first run the bill past a group consisting of the league and others representing towns, real estate and development interests. The bill died on the Senate floor.

While I agree that the League is very much about keeping local control as much as possible over land use policy and regulations (that’s who they represent, after all, are the local elected officials), I think it is rather unfair to characterize them as not concerned about water conservation.  The example with Sen. Jenkins was from several years earlier, when water was perhaps not as critical an issue as it is now.  And I will say, that in the meetings and discussions I’ve attended in the past year, League and local officials do very much express concerns about water availability and conservation.  Their position is, simply, “don’t impose the solutions on us, let us help craft them, we’re often on the front lines and have good ideas too.”

Now, I don’t intend to say that local officials are always right, or have the best answers (zoning issues at the local level can be frustratingly parochial).  But examples from other states have shown that where policies are imposed from higher levels without at least the attempt to work with local officials, those local officials can become amazingly reluctant and obstructive to implementation.

The story is worth the read, but given the stated mission of ProPublica, I’d take it with a grain of salt.

What this also tells me, is that we are nowhere near being done with water and land use issues in the legislature and in our local communities.  Put on your life jacket, lots more deep water (or lack thereof!) ahead.

I’M BACK!  OH, NO!

June 21, 2022

You may have noticed that I haven’t posted a new entry in a while – I’ve been recovering from a long European trip, trying to get things back in order at home and overcome JET LAG!!  I keep waking up at 4:00 am, I should just write new blog posts then, but my mind isn’t working properly at that time of day.  Ah, well.  Finally, I’m feeling up to it!

Saw this piece in The Atlantic this morning:  Cancel Zoning: If we want to fix the housing-affordability crisis, segregation, and sprawl, zoning must go.  It’s by M. Nolan Gray, who is described as a professional city planner and an expert in urban land-use regulation. He is currently completing a Ph.D. in urban planning at UCLA. Gray previously worked on the front lines of zoning as a planner in New York City, and now serves as an Affiliated Scholar with the Mercatus Center at George Mason University, where he advises state and local policymakers on land-use policy.  The piece in The Atlantic is excerpted from his newly published book, Arbitrary Lines: How Zoning Broke the American City and How to Fix It.

My point in bringing this to your notice is the growing pervasiveness of ”zoning reform” as a social and cultural icon.  If you scroll back through this blog, you will see the many entries I’ve made about the push for zoning reform – that is, the movement to eliminate exclusive single-family zoning, and other restrictive land use regulations for housing – around the country.  We’ve been speculating on the inevitability of the movement reaching Utah.  It has, in fact, been discussed at state legislative levels, but so far, the strong efforts by local officials to work with state ones has led to a more collaborative approach.  Can it continue?

When books like this, and stories about them pop up in such respected national publications as The Atlantic, (and The Economist, and the New York Times, and on and on), well, the push may well become irresistible.  Some notable excerpts:

Amid ongoing crises of housing affordability, inequality, segregation, and sprawl, fixing zoning has emerged as a cause célèbre. Over the past decade, the Obama, Trump, and Biden administrations have all vowed to take on zoning reform. National outlets now regularly decry the evils of zoning. And local YIMBY groups across the country are rewriting old ordinances. For the first time in 100 years, the arbitrary lines that divide up the American city have become impossible for the average person to ignore.

New homes aren’t going unbuilt because of developers’ ignorance or a lack of land—developers are desperate to build in expensive cities, and they can always build up when they can’t build out. Instead, homes are going unbuilt because of zoning.

For every zoning rule prohibiting new housing, a half-dozen rules inflate the prices of the housing that actually gets built.

Consider minimum lot sizes, which require developers to set aside a certain amount of land for each home. These rules are common in single-family zoning districts, where lot size is a key driver of costs. Although they serve a health-and-safety function in rural areas—where, for example, sewer hookups may be unavailable—these rules serve no such purpose in most cities and suburbs. Ample research has shown that minimum lot sizes are a major culprit for rising housing costs.

…this suggests a bleak future for zoning. The most powerful voices in local housing debates are those of incumbent homeowners. If they see zoning regulations as a means to inflate their biggest investment—the value of their home—the prospects for reform are slim. Even when local policy makers manage to change codes, they will face continual opposition. Their victories are unlikely to last.

As I wrote once before, the wave, she is coming.  Can it be resisted?  Should it be?

BUT THE BEAT GOES ON

June 14, 2022

Finally, in the third of my trilogy on housing for the future generations, just to put an exclamation point on how hard it’s apparently going to be to turn the corner, here’s a couple of recent examples.

First, this from Summit County, which has one of the worst affordability problems in the state (at least around the Park City area).  The county council there is struggling with a proposed dedicated affordable housing project, which requires significantly higher density to work. https://www.parkrecord.com/news/summit-county/summit-county-council-conflicted-on-pinebrook-affordable-housing-project/, where a

proposal would construct 22 townhomes on a 1-acre lot that was once used as a tennis court and restrict units to people earning 30%, 60% and 80% annual median income.

The story brings to life the proposition put forward by the authors of the Neighborhood Defenders book (see May 12 blog post) that nimbyism has transformed into defense of community character:

The Summit County Council recognized the efforts of developers hoping to bring 22 units of affordable housing to Pinebrook on Wednesday but questioned if the project will be compatible with the neighborhood. 

One of the council members

said he’d received several emails about the project. He has concerns the property may be too dense to be compatible with the neighborhood, and said the project’s “fatal flaw is that it is not integrated into the community.”

“You get people who look at [concentrated affordable housing in one development] and say ‘That’s where the brown people live and I don’t like the brown people.’ That’s why we have a lot of strong consideration for integration. We’re not just warehousing people here. We’re bringing people into our community.  That’s the whole idea … this is not it.”

In fairness to the Summit Council, they do seem to be genuinely struggling with this:

County Councilor Glenn Wright indicated he would be in favor of the project, with certain stipulations in the development agreement like environmental mitigation efforts. He said he learned from Summit County Planning Department staff there are 3,500 undeveloped entitlements and 70% of those are expected to be single-family homes, which aren’t likely to offer the same level of affordable housing.

“We are not going to be able to build affordable housing unless we build it dense. This type of project is the only thing that is affordable, that can be built affordably in our county,” Wright said.

But the pressure from the neighborhood residents makes it really hard for elected officials to move in that direction.  The project is still under consideration.

The second example comes from Washington City.  https://www.stgeorgeutah.com/news/archive/2022/06/10/tsb-parking-availability-at-proposed-200-unit-housing-complex-in-washington-city-sparks-debate-with-developer/#.YqgDtS1OKf1

One of the bigger elements affecting the affordability of housing projects is parking requirements.  Often the standards in local ordinances are higher than they need to be.  The Washington City Council there recently considered a

proposed 200-unit project by Wasatch Acquisitions — named “The Ash” — planned for the northeast corner of Bella Vista Drive and Desert Cactus Drive. “The Ash” will consist of 168 apartment units and 32 townhome units. The apartments will have one-, two- and three-bedroom options and the townhomes four, two-story units per plex.

The debate revolved around parking.  A council member

began the debate by saying Wasatch Acquisitions’ plan lacks sufficient parking spaces allocated per housing unit. He outlined the larger problem Washington City has faced where private housing residents fill their garages with storage items, boats or RVs, leading them to park their cars on city roads to avoid private road ticketing.

The alarming part for me in this example is how local officials sometimes go beyond what may even be legally required.

Responding to (the council person), the applicant explained the 348 parking spots in the proposal already meet and go above the city code requirement of 335 parking stalls, but (the councilor) maintained his position that there still needed to be more parking spaces for private residents.

This is the kind of stuff that gets local governments in trouble with the state legislature.  In the end, the applicant caved in and agreed to additional parking.

I apologize for picking on these two communities to make my point..Unfortunately, stories like this are not uncommon.  There are many others out there.  Wither the future of affordable housing?

WAIT, LISTEN!  DID YOU HEAR THAT?

June 13, 2022

Continuing my post from yesterday on the topic of providing sufficient housing for our future generations.

I posed the question (as have many others before me) of who speaks for the potential future residents of our communities when hearings are held on zoning and general plan changes?  Goodness knows we get plenty of comments from those who already have their homes, and want to keep things just like they are.

Well, many of you know that I serve in my retirement on the Kaysville Planning Commission.  Recently we considered a rezone application from low density single-family zone to a moderate density one which would allow for multi-unit structures.  The property was located in a single-family neighborhood, but fronting on a major street. While the city’s general plan designated the general area for low density single-family, it did also say that higher densities could be considered adjacent to collector and arterial roads.

At the required public hearing, we got, as you might expect, plenty of comments about how inappropriate such a request was, how it would ruin the neighborhood and lower property values.  But then, there was this written comment, sent in just prior to the hearing.  I’ll reprint it here without revealing the commenter’s name:

So disappointing to see the planning commission doing planning stuff. Your job is to listen to the current residents. How DARE you plan for future residents, needs, and growth? It’s appalling. My ancestors founded this town, and they planned it perfectly already. No changes or updates necessary! But no, people keep bulldozing the beautiful farms and houses to make way for greedy developers. No more Californians ruining our beautiful city! I was appalled when my house got built, and especially appalled at all the other houses that got built after mine.

I know you won’t listen to me–you NEVER do– but those are my two cents. I’ll be loudly rolling my eyes in the back of the room until the end of time in case you ever want to talk.

As a potential future resident of Kaysville, but who currently can’t afford a single family home anywhere in the city..

Well, I guess I was wrong. We DO sometimes hear from those who aren’t in town yet. This one had an address of South Jordan.  But do we listen?  In this case, the PC recommended approval of the application, but the council, who has ultimate authority, did not.

LAYING FOUNDATIONS FOR FUTURE GENERATIONS

June 11, 2022

Katie McKellar, the writer on housing issues for the Deseret News, had a long piece published a couple of days ago that really put into perspective the generational inequalities created by the current housing affordability crisis.

https://www.deseret.com/2022/6/10/23064453/housing-market-american-dream-out-of-reach-generational-wealth-gap-millennials-baby-boomers

McKellar tells the issues that first-time homebuyers, and even renters (recently, especially renters!) are facing as they look for housing.  As she explains, much has to do with the dynamics of existing market conditions and building climate.  And now most recently, inflation and interest rates will likely exacerbate things.

Overall, the average millennial has experienced slower economic growth since entering the workforce than any other generation in U.S. history, The Washington Post reported in a story labeling millennials “the unluckiest generation in U.S. history.”

And now, as the price of housing shoots higher and higher into the clouds with no clear end in sight, millennials — and yes, Gen Z — are finding it nearly impossible to afford a home. Especially a home like the one their parents bought years prior.

“It’s a remarkably positive story for Americans who own a home; it’s also inseparable from the housing affordability crisis for those who don’t,” the Times reported. “For them, rents are rapidly rising. Inflation is whittling away their incomes. And the very thing that has created all this wealth has pushed homeownership as a means of wealth-building further out of reach.”

With the cost of housing what it is, the danger is that the upcoming generation will likely have a considerably lower standard of living. So much more of their income will have to be devoted to paying for housing, leaving less for everything else, and the housing they do get will likely be something substantially less than what previous generations had at their stage in life.

“What it reveals, I think, is the nature of wealth in America and this danger of housing being sort of a sink for wealth,” Lara Gale said. “You can’t have financial stability tied up in an asset that is necessary for survival. And yet that is the case.”

As everyday Americans compete with each other — and investors — for housing that simply isn’t available, “you’ve got this bizarre lottery situation,” Lara Gale said, “with an asset that is treated as though it’s some kind of commodity when in fact it’s as necessary as water.”

While McKellar writes mostly about market and economic factors, she doesn’t leave out the land use regulations aspect as a factor.

While baby boomers continue to hold a majority of the nation’s wealth, they often “use that as power to entrench the wealth that they have,” Kimbrough said.

Thus, the NIMBY (not-in-my-back-yard attitude) is born. They worry higher density living will drop their property values (a claim that’s not supported by evidence here in Utah, according to University of Utah housing researchers). Meanwhile their children and grandchildren continue to struggle to find a place to live.

“That lack of housing supply has really hit hard the younger generations that are less likely to already own a house,” Kimbrough said. And yet, the NIMBY attitude is motivated by this belief “that they need to do this to protect their wealth.”

Benjamin Keys, a professor at the Wharton School of Business, said, “There’s actually something that’s kind of pernicious about this,” as millions of people have made trillions of dollars the last two years by doing nothing.

“But it’s worse than that,” he continued. “It’s not that they’re not doing anything; it’s that they’ve aggressively blocked development in so many places.”

For this very reason, as well as for the benefit of having more diverse, dynamic neighborhoods and communities, I believe our local planning commissions and elected councils must do more to accommodate housing, and particularly entry-level, affordable housing.  We have to recognize that there will be grumbling from those who already have theirs, and not let that dissuade us.  Do it thoughtfully, so it will enhance the neighborhood and community, but it WILL be different, and that’s okay!  Our future generations need this, and who’s speaking up for them at these meetings?

You’ll hear more about this from me in this space, stay tuned.

IT’S LIKE A RUBIK’S CUBE

June 9, 2022

A recent piece in Bloomberg CityLab titled “Effective Zoning Reform Isn’t as Simple as it Seems” https://www.bloomberg.com/news/articles/2022-05-24/the-limits-of-ending-single-family-zoningpoints out the complexity of attempting to achieve housing affordability by just eliminating single-family zoning.  In fact, the writers point out, there are other local regulatory and policy measures that are likely more effective.

Minneapolis is the poster child for these conclusions.

Consider the example of Minneapolis, which voted to effectively eliminate single-family zoningcitywide in 2019, allowing landowners to build two- and three-unit apartment buildings on land previously off limits to anything other than individual homes. … Unfortunately, evidence thus far points to little progress … . Between 2018 and 2021, according to city data, permits for small apartment buildings doubled, but only to 81 total housing units in those types of structures — a tiny figure in the context of the city’s 180,000 households. At the same time, prices for single-family homes on lots affected by the zoning change increased.

The explanation for this underwhelming performance is in part due to the push from neighborhoods to impose substantial restrictions on the characteristics of now-allowed apartments.  They

were required to be less than three stories tall and have small overall square footage … Acquiring financing for these types of structures is notoriously difficult.

Instead, it appears that other changes to the city’s development regulations have produced a better outcome:

The city legalized accessory dwelling units in 2015, eliminated parking requirements near frequent transit service in 2015, and dropped parking requirements citywide in 2021, making it cheaper to add apartments outside of downtown. As a result, the number of housing units permitted in Minneapolis doubled from 2015 to 2020. More than 90% of new units were in large buildings with at least 10 units.

The authors go on to postulate that it is really the addressing of a variety of policies and regulations that really results in the kind of changes striven for.

• flexibility measures allowing cities and towns to provide relief or exemptions to certain developers but not others;
• requirements, exactions and incentives, which are all tools used to promote certain types of development over others;
• administration rules that govern zoning policy; and
• procedures, such as the review and appeals processes used to make choices about advancing projects.

The article also makes the point that communities are often at very different places in their current makeup, future developability, and future course.

… requirements for outcomes and reforms should be tailored to jurisdictions’ local conditions. Much of the real-estate market responds not just to land-use regulations, but also to factors outside local government control.

The piece concludes it takes a full range of measures to effectively deal with something as complex as overall community character.

Minneapolis shows that eliminating single-family zoning alone — or altering other forms of base zoning — is not a silver bullet to increasing housing supply. Such changes are a small part of a wider transformation needed to improve communities’ land-use regulations to support housing production.

Eliminating single-family zoning isn’t enough if disgruntled neighbors can hold up construction on three-unit apartment buildings through months of public review. Allowing more types of housing to be built isn’t enough if unreasonable impact fees or parking requirements on new housing makes financing projects infeasible. Aligning all elements of land-use policy is necessary to make meaningful progress.

And then there are all those other little things beyond the community’s control, like cost of land, cost of materials, builder labor availability, financing and interest rates…. Oh well, you do what you can!

FOOD FOR THOUGHT

June 7, 2022

A little something more to contemplate about our land use processes related to our current housing and community development issues, this from Andrew Ross’ book “Celebration Chronicles,” about the creation of the community of Celebration, Florida:

While DPZ’s (The firm of Duany Plater-Zyberk) charrettes typically involve several days of meeting with local officials, community leaders, architects, interest groups, and citizens, Duany is wary about too much citizen participation.

“After being a rigorous practitioner of the public process, I have lost some confidence in it.  When given the chance to make decisions, more often than not, citizens will make palpably wrong ones.  They are usually against mixed use.  They are always against higher density; they love five-acre zoning … Until confidence is restored by some real successes and planners are allowed to implement the difficult decisions, a mob often decides against its best interests… The citizens will close the drawbridge, oppose mixed use and economic variety in housing, so we must fight them.  I’m not the sort of planner that does what the citizens dictate.  We are not secretaries to the mob…. Our democracy is a representative form of government, there are elected officials and planning boards, and we should speak only to them.  The citizens themselves are a distorting influence because they are specialists, just like traffic engineers are specialists.  Their specialty is their own backyard, and only rarely the community as a whole.”

Don’t think I agree completely with Duane on this because if we completely ignore the citizens, the result could be “off with their heads,” electorally at least.  Then what?  Still, there’s something nuggets here to consider…

WHILE WE TALK, WE STILL GROW

June 3, 2022

As I’ve noted in earlier posts, the Unified Economic Opportunity Commission has become the primary body at the state level looking at growth issues and what to do.  That’s been borne out again in the Commission’s meeting last week.  https://www.utah.gov/pmn/files/852955.m4a

The Commission, chaired by the Governor, received reports from its various subcommittees on who their members will be and what issues they will be addressing through the remainder of the year https://www.utah.gov/pmn/files/853203.pdf.

Some of the highlights of the reports and subsequent discussions:

• the Growth and Transportation subcommittee will be looking at the structure of funding for transportation infrastructure, including for the first time for long-term investment in public transit.
• The G&T subcommittee will also be looking at what changes to policy and law might be made for land use around transit stations, beyond what was put in place in this year’s legislative session
• The sentiment was expressed that planning for water infrastructure and water management is now as or more important than transportation infrastructure, and that significant effort needs to be put in here.  Water will ultimately control how much more we can grow, or at least in what manner.
• Plenty of discussion about how landscaping for new growth needs to be modified and restricted considerably, beyond what was put in place with this year’s Water Wise Landscaping bill passed by the legislature.
• The Housing Affordability subcommittee, formerly the Commission on Housing Affordability, reported on the largely unacknowledged issue of housing availability in rural Utah.  Many areas around the state outside of the metropolitan areas are growing economically and in population, but often there is very little new housing available.  Needs to be addressed.
• Housing subcommittee co-chair Steve Waldrip also talked about the current effort underway to attempt to develop a metric to measure the shares for housing affordability among communities.  This is a tricky and loaded issue, as I’ve noted in previous posts about regional fair share histories in other states. It will be interesting to see how this will be addressed here.

The Commission then also heard a brief report from State Planning Coordinator Laura Hanson about the plans being developed for conducting the Statewide Conversation on Growth, funded by the legislature to the tune of $1 million.  See the link above for the slides she presented.  This will be interesting to have this going on at the same time as all the work underway by the Commission subcommittees; the land use policies discussions conducted by the land use law non-profit funded by $250,000 from the legislature; the water planning projects funded by the legislature; the planning required of local governments for water, transit station areas, moderate income housing, and water wise landscaping; and the on-going efforts of the land use task force.

2022 is truly shaping up to be the Year of Planning. The question will be, will it result in any positive changes?  In the meantime, we continue to grow https://www.standard.net/news/local/2022/may/26/west-haven-population-grows-by-15-4-second-fastest-rate-in-utah/

MORE STRs

June 1, 2022

Yes, there are more short-term rentals – and yes, there’s more churn about them too.  Most recently again from Summit County, where the county council considered taking action to

considers whether to approve a 6-month moratorium on nightly rental licenses in response to growing concerns across the community.

Under the draft ordinance, no nightly rental licenses would be given during the six months to give the county time to examine the issue.  …

Those who already have a nightly rental license would be unaffected, but properties without one would be prevented from applying until next year if a moratorium is adopted. Staffers said this would allow them to sort through the number of legal short-term rentals while teasing out units that don’t meet the necessary standards.

The issue appears to be about the impact on available housing as much as about the typical neighborhood disruptions from non-permanent renters.  According to county staff,

…there are 8,000 nightly rentals countywide, which is about 22% of housing in Summit County. He said the growing number of short-term rentals has led to a long-term housing deficit as property owners accommodate visitors rather than the workforce.

“That represents a significant number of units that have been taken off the long-term housing market,” Armstrong said.

Read more about the discussion here https://www.parkrecord.com/news/summit-county/summit-county-council-to-hold-public-hearing-for-moratorium-on-nightly-rentals/

Subsequently, the real estate community has reacted, asking the county council to not overreact.

The Board of Realtors submitted a letter to the County Council on May 24, one day before elected officials seemed poised to vote on the ordinance. Instead, the discussion was tabled, in part because of the Board of Realtors’ opposition, until a public hearing could be held this week.

Park City Board of Realtors President Rene Wood said in an interview the organization hopes to present its own findings that show short-term rentals have not been a problem to the Council as well as other ways resort communities have worked with homeowners who want to use their personal property as vacation rentals to mitigate the impacts on residential neighborhoods. She anticipates a large turnout of people from the real estate industry at Wednesday’s meeting.

“We urge them, even more, to not act abruptly as the voices get loud. Let their resolve be fueled by reason and data,” the press release said. “The concern for public safety seems to be on all of our priority lists and we believe that stopping permitting will just push more homeowners to rent their properties without regulation or permits and in turn make our community less safe.”

Read more about the delayed action here https://www.parkrecord.com/news/summit-county/park-city-board-of-realtors-voices-opposition-to-moratorium-on-nightly-rentals/

The challenges surrounding this issue continue to grow!

PUT IT WHERE THE SUN DON’T SHINE

May 31, 2022

A recent article in Popular Science titled Outdated Zoning Laws Are Holding Renewable Energy Back https://www.popsci.com/environment/outdated-renewable-energy-laws/ got me to thinking that housing affordability isn’t the only thing being impacted by local land use regulations.  From the article:

When you’ve decided you’d like to install some solar panels on your home or in your community, for instance, there can be many legal barriers that can delay your doing so or even prevent it entirely. Permitting and zoning laws can become a major issue in some areas.

…an area might not be zoned for installing renewable energy, which means you can’t install it unless your local government decides to allow it. A zoning ordinance might allow it to be installed but have requirements for where it’s allowed to be installed due to concerns about things like community aesthetics. It could even be entirely unclear if installing a renewable energy system is permissible at all.

This is for individuals wanting to install a solar or wind energy generator on their home or property.  The situation is even worse for large scale renewable energy facilities, like wind turbine or solar panel farms.  Robert Bryce, an energy industry expert, has written on this issue a number of times. Most recently from his newsletter Real Clear Energy https://www.realclearenergy.org/articles/2022/05/19/ohio_county_veto_of_wind_project_shows_its_time_to_end_federal_wind_subsidies_833054.html

On May 5, commissioners in Crawford County, Ohio voted 2-1 in favor of a measure that prohibits the construction of wind projects in the county. The move halts a 300-megawatt project being promoted by Apex Clean Energy called Honey Creek Wind. 

The Crawford County vote matters for several reasons. First, it provides yet another example of the backlash in rural America against the landscape-blighting encroachment of giant wind turbines; and those rejections are piling up. The vote in Crawford County marks the 330th time that government entities from Maine to Hawaii have rejected or restricted wind projects since 2015. (Details on those rejections can be found in the Renewable Rejection Database.)

The backlash against the wind industry also exposes the growing social divide over climate change and how much each American will be required to do to slow it. These fights are about red versus blue, rural versus urban, and big business versus small-town America. Local governments and landowners are rejecting wind projects because of concerns about falling property values, ruined viewsheds, and potential loss of tourism dollars.

The same happens with solar projects.  It’s going to be hard to switch over to more renewable energy if we can’t get the facilities to make it possible built because of local opposition and subsequent land use restrictions.  Like with housing affordability issues, the problem again sometimes needs addressing at higher level policy forums, as Bryce points out:

…solar and wind projects are so unpopular in upstate New York that last year, the state pushed through regulations that will give Albany officials the authority to override the objections of local communities and issue permits for large renewable projects.

We gotta stop meeting like this, local officials! 

GOVERNOR COMMENTS ON UTAH’S AMAZING SUCCESS, GROWTH PROBLEMS

May 26, 2022

Tony Semerad, reporter/writer for the Trib, had a piece in the news yesterday about Gov. Cox speaking during an online chat held by the Washington-based J. Ronald Terwilliger Center for Housing Policy, in which he touched on a number of growth and housing issues in Utah.

On the topic of short-term rentals:

Thousands of potentially affordable homes in Utah are being deployed instead as short-term rentals in a trend that is worsening the state’s housing shortage, according to Utah Gov. Spencer Cox. … Nearly 20,000 properties are now listed as short-term rentals in the Beehive State, “which is something we haven’t had before. … This is a new phenomenon,” Cox said. “We’re taking houses, and we’re turning them into hotels. … That’s housing stock that now isn’t being rented to families or available for purchase by first-time homeowners or others.”

The governor said much more on this issue, which is one that is on the list for study by the Legislature’s Political Subdivisions Interim Committee.  Committee member Rep. Calvin Musselman is reportedly taking the lead on this topic, which was the subject of two bills during the legislative session (neither passed).  See my April 14 blog post for more on this topic, which continues to grow.

Gov. Cox also commented on the state’s high growth rate and economic success, causing quality of life concerns among citizens.

The governor characterized Utah as a “victim of our own success” in the state’s latest housing crunch, with a soaring population, a strong, diversified economy, and lower taxes all fueling record growth and luring newcomers. But that also has spurred a 27% leap in home prices over just the past year after more than a decade of similar escalation and increases in rents, making housing what Cox called “one of our biggest challenges.”

It also has shifted residents’ once-favorable views on growth, with support dropping “precipitously,” Cox said, and residents now associating it with clogged traffic, expensive homes and a lower standards of living. He noted Utah now has among the worst residential real estate markets in the country in terms of prevailing income levels relative to housing costs.

“That’s a big concern to me,” Cox said, “and to everybody in the state.”

That also led him to talk about the impact of NIMBYism on community planning and accommodation of new growth, even to the point of saying the citizen referenda are hurting the ability to deal with growth effectively.

“…when a handful of people in a neighborhood can get something on a ballot and overturn something fairly easily, we may be a little bit out of balance there.”

He mentioned as well the recent legislative initiatives on planning topics:

Cox said the state was seeing success in its efforts to encourage cities to zone for added density along transit corridors by tying those moves to the state transportation funding those cities receive.

“We’ve had the state taking a bigger role,” said Cox, who also referred to a recently passed Utah law requiring cities to permit accessory dwellings such as basement and mother-in-law apartments to be added onto existing homes in most residential areas. “It’s still mostly local control, but with some of those exceptions that I think are important.”

As the Governor chairs the Unified Economic Opportunity Commission, which includes the Speaker and Senate President, this appears to be the lead entity talking about state growth issues, where we will likely see more actions coming from in the future.

COME ON IN, THE WATER’S … NOT HERE!

May 23, 2022

On Thursday, Governor Cox held his monthly news conference and addressed a number of issues, including the issue of water, drought and future growth.  A reporter from southern Utah made the statement that local officials in that part of the state are considering whether future “zoning” permits should be curtailed until the current drought situation has at least been addressed.  He asked the Governor if he was in favor of such curtailing of permits? (starting at about time 18:30 in the video).

The St. George News carried a good story covering the Governor’s response.  Regarding future growth and the drought, Gov. Cox said:

“We are certainly encouraging more building to lower the price of housing. We need more building, but we have to do that responsibly. We have to make sure that the water resources are available for the housing that is coming into that area.”

Gov. Cox noted that one of the bills passed during this year’s legislative session was a requirement for city planning that they must include water resources. (SB110 – Water As Part of General Plan).

“Any good mayor, any good city council would always look at the water resources that they have available, and the building permits that they’re looking at, and make sure that they’re not overextending in a way that would hurt everyone in that community,” Cox said. “On a temporary basis, as we work through these issues, not only should they do it, not only do I support it, it’s now the law that they have to do that.”

This is just the latest iteration in a theme that I’ve been seeing more and more frequently in recent weeks around the state, that of how water availability may affect future growth.  During the last few months, Craig Call, Jordan Cullimore and I have been conducting land use training sessions based on the updated Citizen’s Guide to Land Use Regulation book, retitled Ground Rules: Your Handbook to Utah Land Use Regulation, available through the very Utah Land Use Institute where this blog resides.  More and more during these sessions, I am hearing local officials make statements and ask questions about possibly curtailing future development because of limited water availability.

This concern was underscored in this year’s legislative session, where a number of bills were introduced regarding water issues.  The bills ranged from requirements and funding for statewide and basin water planning, to the aforementioned required water element in local general plans and a new section in LUDMA titled Water Wise Landscaping. The years’ long drought has certainly served to heighten these issues.  Nor has this been just a recent blip on the radar.

Over the last year or so, at least two Utah communities have made the news for imposing building moratoriums.

While many Utah communities are altering lawn irrigation days and pushing water-saving tips, Oakley and Henefer have prioritized current residents over new building, and halted new projects on city water all together.

The reasons are varied, but the bottom line is, these communities have determined that they just don’t have the water available to provide for any more new growth.  They are both working on getting more water, but until they do, new home building may be stopped.  In October, Oakley extended its moratorium, and may do so again.  Wait, I can hear some of you saying, isn’t the rule that development moratoriums are only allowed to run for six months, according to court rulings and state code?  Well, yes, for a “pending ordinance” type of moratorium.  But the other kind that can be imposed is for a “compelling, countervailing public interest,” which usually means some kind of serious threat to public health and safety.  A lack of water to serve any new residents (and which, if more residents were added, would take away from current residents) may well fall under this category, and the moratorium could remain in place as long as the threat exists.

Another community facing water issues is Cedar Fort.

It isn’t just cities and towns that are facing this issue, either.  Some local jurisdictions (mainly counties, but not exclusively) rely on service districts for water.  When that is the case, these entities usually require new development proposals to include verification from the service district that they will get the needed water to serve their development.  These are often provided by what are called “will serve letters.”  Well, some districts are facing the same problems that some communities are.

The Wolf Creek Water and Sewer (Service Dsitrict) moratorium has been in place since July 27, 2021. The onset of this moratorium stopped all lot owners from receiving Will Serve letters, a proof of water source required to obtain a building permit or develop a new lot. … It is our understanding that the current situation is strictly due to the availability of culinary and secondary water. This initial moratorium period was set to be in place until March of 2022. Property Owners were hopeful this would be the end of the moratorium and receive water.

Unfortunately, as of the March 10, 2022 review, Wolf Creek Water and Sewer announced they will not be issuing any letters presently and have postponed any future Will Serve letters indefinitely. With several homeowners ready to build, this has costly delays with building costs and interest rates climbing… . Utah is experiencing a drought and has been for 6 years; 2021 was the worst by far, sending Wolf Creek and Liberty water companies to pull back.

As I mentioned earlier, I am hearing more and more the concerns about water availability for future growth.  I’m even hearing it in regular Planning Commission meetings when new development proposals are under consideration.  I have said for a long time that whenever a development project comes up for public hearing in local PC meetings, the public comment almost always includes something about how the proposal will lower property values, increase traffic, and endanger the lives of children.  Lately, there’s been a new one added – it will use up scarce water.

Last week, our Utah Land Use Institute Board met and considered topics for this fall’s Land Use Law Conference.  We usually try to focus on what’s hot currently and address the thorny problems that accompany the latest hot land use issues.  Water was right there – in fact, the conference will likely feature a half day session devoted to problems related to growth and water availability.  We’re in a drought, our water is running low, and we’re still one of the fastest growing states in the country!  Anyone see a problem here?

Here’s a couple more media pieces that serve to emphasize this issue:

Will Utah Have Enough Water to Sustain Its Booming Population? from Utah Stories website

Drought-Stricken Western Towns Say No to Developers from Pew Stateline web service

BUILDING INDUSTRY EXPERTS EXPRESS CONCERN FOR THE FUTURE OF WATER from Builder Newsletter

I DIDN’T KNOW!

May 20, 2022

And this is how we get in trouble with the state legislature, which then passes new rules for land use that really aren’t necessary (because they address problems that exist in only a very few communities), and are often not good policy.

First, I need to say that I am not going to blame one particular town or city for this problem.  It is a general problem that exists.  What am I talking about?  Well, when the legislature passes bills that make changes to the land use code (LUDMA), they expect everyone to follow them.  And yet, we know from sad experience that that doesn’t always happen.  In fact, it’s often the case that required changes to land use regulations aren’t made – because local officials don’t know about them (sometimes), or (more likely), they just don’t have the staffing and capacity to get the changes made in a timely manner.  Here’s the case in point that prompted me to write about this.

Yesterday it came to my attention that one of our Utah communities was called out in a national publication (Forbes) for having a land use regulation that exacerbates the housing affordability issue.

The May 17 story by Andrew Wimer of the Institute for Justice, a public interest law firm, titled Rules Requiring People to Buy Big Homes Are Pricing Americans Out of the Market, uses three communities around the country that have minimum home size requirements as examples of local land use regulations that are exacerbating the housing affordability crisis, and may well be unconstitutional.  The three communities referenced in the article are Highland Lake, Alabama; Calhoun, Georgia; and the feature and lead story for the article: Big Water, Utah!  Some excerpts:

Right now, Chrissy Rochford lives in an RV with her dog Riley. While she has financing for a home of her own, her tiny Utah town of Big Water is refusing to let her make that dream reality. Chrissy’s plans are for a 1,600 square foot home that would leave enough space on the lot for her horse, Sundance. But the town demands that her home as to be at least 2,000 square feet, no exceptions.

That restriction exists in most of the town, even though there are plenty of open lots, where the population is just shy of 600 people, and the median income is only $30,000. What’s the point of the regulation? To keep existing home values artificially high.

When Chrissy asked the town’s Planning and Zoning Board to change the law, she was told that the town had promised Utah’s state lands administration that the town will maintain the square footage minimum “to keep the property value up.”

For now, Chrissy is stuck since the handful of lots that would allow her to build a more modest sized home wouldn’t accommodate Sundance and she can’t afford a bigger home. Ironically, the streets of Big Water are a smattering of patriotic references: Freedom Way, Independence Drive, and Patrick Henry Court.

Wimer notes later in his piece:

The Institute for Justice wrote letters to the town councils in Big Water and Highland Lake noting that their requirements may not be constitutional, under either the U.S. or their respective state constitutions. Laws restricting how Americans use their private property have to be reasonable and serve legitimate government interests. Courts have struck down square footage minimums in Connecticut and Pennsylvania, finding that they had no connection to public safety or welfare.

Big Water should look at its street signs and think hard about whether their housing requirement reflects the values for which Americans like Patrick Henry fought. How did we get from “Give me liberty or give me death!” to “Your home must be this big and must make your neighbors’ property values go up”? Hopefully the town council will come to its senses and let Chrissy, Riley, and Sundance live in peace.

Wimer is obviously not aware, and perhaps the officials of Big Water aren’t either, that Utah state code prohibits these kinds of requirements in local land use ordinances.

I checked, and sure enough, right there in Big Water’s land use code is this:

All Single-family dwellings, including manufactured homes, shall meet the following requirements:

Have a minimum floor area of 1,200 square feet in Zoning Districts R-1 and RE-1, and a minimum floor area of 2,000 square feet in Zoning District RE-2.

Many of you are likely aware that just a couple of years ago, the state legislature passed a bill that restricts the kinds of design requirements that local governments can impose on single- and two-family dwellings, ostensibly as a way to aid in keeping housing more affordable.  The provisions are now found in Section 10-9a-534 and Section 17-27a-530.  These sections state:

a city/county may not impose a requirement for a building design element on a one to two family dwelling.

Building design element is defined in those sections, and among other things, includes this:

minimum square footage over 1,000 square feet, not including a garage

In other words, cities, towns and counties in the State of Utah cannot impose minimum size requirements for homes that are larger than 1,000 square feet.  As you can see, the Big Water provision directly contradicts that stipulation.

I call out this example not to beat up on the town of Big Water (at least not too much), but more to point out the issues we have with getting communities all around the state to get their codes in compliance with state requirements.  This is often difficult not just because of the challenge of making sure the word gets out to all 249 cities/towns and all 29 counties around the state, but also the challenges many of these communities have to get the changes made in a timely manner.  The smaller communities particularly have a hard time with this because they have no staff or very limited staff who just don’t have the time to get to making all the changes that seem to come down from the legislature every year.

And when these shortcomings are made apparent, as they are in a national publication, well, the legislature often feels they just have to do something about that.  And we get… new laws!  That have to be adopted by the local communities…  Who are already hard-pressed to get everything done…  Around and around we go!

SIGN UP HERE

May 19, 2022

And now, for something completely different…

Getting off the public input kick for a bit here.  Let’s talk about political signs!  Trib columnist Robert Gehrke just wrote about this yesterday, talking about a Morgan County sign ordinance which prohibits political signs more than 30 days before an election.  Gehrke cites the standard in the U.S. Supreme Court sign case ruling in Reed v. Gilbert, AZ, which says in part:

… the court unanimously found that city ordinances that treat certain signs differently based on their purpose and message are unconstitutional, since the ordinces are regulating the content of the speech, not merely how it is being said.

The rule of thumb is that anyone enforcing a truly content-neutral signage rule should be able to tell if the sign is legal or not without having to read what the sign says.

With this year’s ruling in the City of Austin v. Reagan National Advertising case, some may think it is alright to regulate some signage based on content, but it appears that relates to much more neutral factors than the political, ideological or commercial nature of the sign content:

Sotomayor thought that it would be “too extreme an interpretation of this Court’s precedent” to say that Austin’s regulation was content-based simply because someone had to determine whether a sign did or did not relate to a good or service being offered on the premises.

While the sign regulation at issue in the Supreme Court’s ruling in Reed v. Town of Gilbert (2015) had required the city to distinguish among ideological signs, political signs, and temporary directional signs, the Austin regulations did not require such precise classification or treat them differently.

Gehrke writes:

Ultimately, local governments need to get rid of these time restrictions and start respecting both free speech and an individual’s private property rights.

But the answer, as so often seems to be the case in sign regulations and rulings, is not so clear cut.

I’M FROM THE GOVMINT AND I’M HERE TO HELP…

May 17, 2022

Okay, today it’s back to a different topic (but one I still obsess over a lot) – housing affordability and zoning reform.  You can tell the issue is really getting into the mainstream of political thought when the feds continue to pile on, which happened yesterday.

Yesterday, the White House released its Housing Supply Action Plan to address what it calls the “housing supply gap.”  The plan is intended to solve the problem in five years!

The plan has a number of strategies to help increase the supply of affordable housing.  These strategies include:

• Rewarding jurisdictions that have reformed zoning and land-use policies with higher scores in certain federal grant processes
• Deploying new financing mechanisms to build and preserve more housing where financing gaps currently exist: manufactured housing, accessory dwelling units (ADUs), 2-4 unit properties, and smaller multifamily buildings
• Expanding and improving existing forms of federal financing, including for affordable multifamily development and preservation

The plan puts a large portion of responsibility for the housing supply shortfall on local land use policies:

One of the most significant issues constraining housing supply and production is the lack of available and affordable land, which is in large part driven by state and local zoning and land use laws and regulations that limit housing density. Exclusionary land use and zoning policies constrain land use, artificially inflate prices, perpetuate historical patterns of segregation, keep workers in lower productivity regions, and limit economic growth.  Reducing regulatory barriers to housing production has been a bipartisan cause in a number of states throughout the country. It’s time for the same to be true in Congress, as well as in more states and local jurisdictions throughout the country.

How to change this?  The plan designates several ways:

…this year, the U.S. Department of Transportation (DOT) released three funding applications for competitive grant programs totaling nearly $6 billion in funding that reward jurisdictions that have put in place land-use policies to promote density and rural main street revitalization with higher scores in the grant process. Today, the Administration is announcing that DOT will continue to include language encouraging locally driven land use reform, density, rural main street revitalization, and transit-oriented development in BIL and other transportation discretionary grant programs.

Over the coming year and before its next round of grants, EDA will add language to its investment priorities to encourage economic development projects that enhance density in the vicinity of the development.

Other actions proposed include:

a number of states and local jurisdictions have made land-use changes to permit the construction and renovation of ADUs, which can offset the cost of homeownership while expanding the supply of affordable rental housing. According to a recent independent analysis, these kinds of state and local reforms – when combined with policies to improve financing options – could lead to the creation of more than 1 million ADUs in the next five years. In addition to zoning and land use changes, achieving that goal will require simpler and more affordable financing options for homeowners and builders. To that end, FHA and FHFA are exploring avenues to help lenders pilot and scale renovation and construction financing for ADUs—particularly for low- and moderate-income homeowners – in addition to new financing options for other single-family renovations and for 2-4-unit rehabilitation.

It’s an ambitious plan, with lots of parts, programs, and pieces.  It’s worth a read to see where emphasis is being placed from the federal level.

MEANWHILE, CLOSER TO HOME…

May 16, 2022

I had intended to take a little break from the public input reform crusade today, but then this story shows up in one of our own local papers over the weekend!  So, I have to call attention to it.

This story is in the Trib, written by Tony Semarad, one of the few local journalists who really takes time to understand our local land use processes and the way our communities are growing and why.  This story, SLC’s push for more affordable housing runs into a wall of pushback, has as it’s subtitle teaser:

“I don’t feel this benefits anybody,” one resident complains, “except for real estate developers” as city strives to lower barriers to building more apartments, town homes, cottages and row houses.

Salt Lake City’s mayor and council are undertaking a reconsideration of the city’s land use rules, as well as other measures, in an attempt to encourage the creation of more affordable housing.  The public comment on these efforts has been, if anything, rather critical that the city is not doing more!  That’s a switch!  So in many ways this appears to run counter to the narrative that I’ve been building the last few posts about the problems with public input on land use issues.

But keep in mind this is Salt Lake City, which is high profile and arguably one of the most “liberal” bastions in our red state.  So there are lots of comments from the likes of university faculty, housing advocates, and low-income representatives.  And there’s still plenty to be concerned about.  From the story:

Some residents clearly fear otherwise, saying resulting construction could alter, fragment and even destroy the character of their communities, lower property values and worsen problems with on-street parking.

“We live in a beautiful neighborhood that has been planned and well-thought out,” said Ben Oveson, a homeowner in the 15th and 15th neighborhood. “This kind of sidesteps that and all that is kind of thrown out the window and we’re saying, ‘This doesn’t have value anymore.’ ”

“I don’t feel this benefits anybody,” Oveson added, “except for real estate developers.”

And this:

“Many of the current homes have single-car driveways or do not have driveways,” said Brian Burnett, vice chairman of the Foothill-Sunnyside Community Council. “This proposal means more people fighting for street parking.

“Families seek out this area because of its character and zoning,” he added. The proposed changes “will discourage families from buying here.”

So while this is not as all-encompassing as much of what we see in other, smaller, more suburban communities, the public input issues are still there.

IT’S ALL ABOUT CHARACTER

May 13, 2022

As advertised, I’m going to continue the citizen input dogpile today with a discussion of a story from last month in the DCist, a community news blog for Washington, D.C., underwritten by the area’s NPR-affiliate radio station WAMU.  Titled In Montgomery County, ‘Neighborhood Defenders’ Fight To Maintain The Suburban Status Quo, the story uses the Neighborhood Defenders book (by Katherine Einstein, et. al.) as an organizing framework, but is really more a series of anecdotes about how new housing development is being stymied by citizen involvement in the Silver Springs and Montgomery County areas.

While I was intending to write about this today all along, things got even more “relevant” on this for me after what happened last night in my Kaysville City Planning Commission meeting (I’m on the Commission), where a rezone proposal for housing was heard.  The parallels between that meeting and the descriptions in the Montgomery County story were striking.

The DCist story begins with a telling of a proposed zone change near downtown Silver Spring. The plan by the developer was to build 76 townhomes on the site of a former private school near a Metro transit station.  Not unexpectedly, neighboring homeowners turned out to object.

“There is a lot of pressure on our neighborhood to become more dense,” said a leader with the Seven Oaks Evanswood Citizens Association. “We want to stop this trend now.”  “We invested in a single-family home neighborhood,” testified a homeowner. “If we wanted townhouses to be a part of that equation, we would have purchased elsewhere.”

Almost eerily, I heard almost the exact same language from some homeowners at the Kaysville hearing last night, except in this case, the objection was to a proposal to rezone a small (1.6 acres) parcel fronting on a major collector road to allow for 8,400 sq. ft. single-family lots (8 lots in total), in an area that was primarily zoned for and developed with homes on 10,000 sf-to-acre size lots.  The rezone proposal was supported by language in the city’s general plan, which, while it generally says this area of the city should have densities around 2 units per acre, should allow for some diversity of housing and modest densities along major roads and adjacent to transit stops.  But according to the majority of public comments on this proposal, the future character of the area and even the entire city would be in jeopardy if these kinds of developments were allowed to go forward, because a precedent would be set (despite the limiting language in the general plan, as pointed out by some commissioners).

In the Silver Spring case, at the conclusion of the hearing, the Planning Board Chair made the comment:

“I understand that there’s a lot of emotion behind this, and a lot of folks that think that townhouses will be damaging to your neighborhood,” Carrier said. “I think you will decide — if this goes forward, five years from now — you’ll decide it’s OK.”  Homeowners in the hearing room began to protest.

Again, a similar thing happened in the Kaysville meeting.  After a couple of commissioners (myself included) pointed out the limited size of this proposal, the close similarity to development allowed by the current zoning, and past experience where projects that were approved over the objections of neighbors ultimately turned out to be fine additions to the neighborhood, one resident said (I’m quoting now): “We’re not assholes, we know the people that would live there would be fine people.”  This development would just upset the entire character of the area, the resident went on, the whole reason why people moved here in the first place.

This to me epitomizes the characterization made in the study by Einstein and co-authors that neighborhood residents these days are not so much NIMBYs, concerned with just the effect on their individual property values and desires, but are more the defenders of the character of the entire neighborhood/community.  This likely makes those arguments more acceptable to the ultimate decision-makers, the elected officials, but the end result is still the same – new housing development is reduced or stymied, adding to the current crisis.  The examples given here are just small, individual actions that by themselves don’t really shift things that much.  But when such small actions are repeated again and again, well, it adds up.

From the Montgomery County story:

“We have this system where local governments are the gatekeepers for new housing production,” says Jenny Schuetz, a senior fellow at the Brookings Institution who examines the national housing shortage in her book Fixer-Upper: How to Repair America’s Broken Housing Systems. “Local governments, in turn, have outsourced a lot of their authority to existing residents, so existing homeowners in particular have essentially veto power over proposals to build new housing.”

Who then speaks for or represents those who will be looking for affordable housing and communities in the future?  That should be the role of those appointed and elected to guide their communities – to look at what’s needed in the future, as well as today.  No question, the residents of our communities should be involved in making those decisions, but it must be more broadly based than the current system we have in place to get such input.

MORE ON PUBLIC INPUT – NEIGHBORHOOD DEFENDERS

May 12, 2022

Dog pile!  I’m going to add to the stack of evidence about how the public input received in land use meetings is generally not representative of the community, nor well informed.  This applies even to meetings for such opinion-centered actions as general plans and rezones.

I want to highlight a book that came out in 2020 by three Boston University political scientists, Neighborhood Defenders: Participatory Politics and America’s Housing Crisis.  The book presents research on who participates in local land use hearings on development proposals and uses a number of cases studies and anecdotes from around the Boston area to make its points.  I’m writing about this in support of the previous posts I’ve been doing about the need to consider the restructuring of how we do public participation in our land use actions community meetings.  The evidence that we currently have a problem seems to be pretty solid, which jibes well with my own personal experiences of being engaged in the local land use arena some 40 years.

First, let’s talk about the term used in the book title, neighborhood defenders.  The more common phrase we all hear for the subjects of this book is NIMBY- Not In My Backyard.  According to the lead author, Katherine Einstein (what a name – how can any research done by someone with such a name not be taken seriously? 😊), the reason for using “neighborhood defenders” is because:

… the term NIMBY implies sort of a selfish motivation. It implies, not in my backyard, a very individually motivated view. In our research, we actually find that the folks who show up to oppose the construction of new housing often view themselves as representing their community’s interests and are motivated by protecting their neighborhood, their surroundings. So, their motivations are not so individualistic.

The second reason that we think neighborhood defenders is a helpful terminology, is it helps us to understand why these folks are so successful at persuading planning board officials, zoning board official, city counselors. If those public officials saw these opponents of new housing as just purely selfish, individualistically motivated, they might be unlikely to hold the same political impact as a group of folks who representing the neighborhood’s interests.  (from interview on Econotalk podcast)

The book starts with “several case studies to introduce the central argument…: that land use institutions ostensibly designed to empower underrepresented neighborhood groups actually amplify the power of neighborhood defenders to stop and delay the construction of new housing.”

The authors present their research in the book to show the general unrepresentative nature of those who participate in public hearings on land use:

…we combine a novel data set of all citizen participants in planning and zoning board meetings in the greater Boston area with the state voter file to describe the demographic and attitudinal attributes of meeting attendees. We demonstrate that these individuals are overwhelmingly opposed to new housing and demographically unrepresentative of their broader communities across a number of important domains.

In his review of the book, Michael Lewyn of the Fuchsberg Law Center in Long Island notes:

The traditional justification for public meetings about zoning is that commenters represent the public. The authors disprove this idea: commenters at zoning meetings are much more likely to be homeowners as opposed to renters, and are whiter, older and more male. In the towns surveyed, 73 percent of commenters were homeowners, as opposed to 46 percent of all voters. Only 5 percent of commenters were nonwhite, as opposed to 13 percent of all voters. Nonwhites were generally more pro-housing than whites; just under 15 percent of white commenters supported new housing, as opposed to 45 percent of blacks.

Lewyn goes on to demonstrate the apparent variation from public sentiment at large as shown by a public vote in Massachusetts on the issue of housing:

The authors suggest that the opinions of neighborhood defenders are not representative of the public as a whole. They rely on the results of a 2010 referendum in Massachusetts on repealing Ch. 40B. Most voters voted no—that is, they supported affordable housing. By contrast, only 15 percent of commenters spoke in support of new housing at zoning hearings (studied by the authors). On the other hand, it could be argued that voters were happy to support new housing as long as it was likely to be in someone else’s neighborhood, or that they preferred low-income housing to market-rate housing.

Thus, zoning creates a collective action problem: what might be good for each individual neighborhood (preventing new housing) is bad for the city or region as a whole. To solve this problem, the authors favor citywide and statewide zoning reforms, as well as more federal support for low-income housing.

There’s lots here worth stewing over, as we think about how we can make our public involvement processes better and more representative.  Read the book!

Next up:  a similar study in Montgomery County, Maryland (gotta keep that dog pile going!)

CAN I GIVE YOU MY OPINION?

May 10, 2022

Continuing the theme of yesterday’s posting, today I want to talk a look at a piece by David W. Owens, Professor of Public Law and Government in the University of North Carolina School of Government, titled Zoning Hearings: Knowing Which Rules to Apply.  This article is rather dated (1997) and does involve some peculiarities of North Carolina code and court rulings, but it still makes the overall point I’m shooting for.

Prof. Owens notes that there are two main types of land use decisions, much as we have noted in our Utah processes – legislative (policy-making), and administrative.  North Carolina, however, has apparently rolled what we call the quasi-judicial (appeals) process into the administrative process and applies essentially the same rules to both.  Bear with me here, it’ll help me get to my point.

For the legislative types of decisions, North Carolina handles those in much the same way that we do here.  Owens calls them legislative hearings, and says:

Legislative hearings are sessions mandated by statute or ordinance to secure citizens’ comments on a specific policy proposal. Legislative hearings must be conducted in a fair, orderly manner so as to allow citizen opinion to be expressed directly to those making zoning policy decisions. … Because legislative zoning decisions such as a rezoning have such widespread impact, the state statutes authorizing local government zoning require broad public notice of the proposed decision. The policy choices in a zoning ordinance affect landowners, neighbors, business and industry, and all citizens concerned about the future character of the community. The statutes encourage full public discussion and deliberation before these decisions are made and leave substantial discretion in the hands of local elected officials regarding what these public policies should be.

So far so good.  North Carolina code has some more specific requirements about how notice is to be given for such hearings, and also requires that public hearings be held before the governing body, which Utah code does not require (it requires a public hearing for a legislative item only by the Planning Commission).

Where I want to spend some more time in this piece is on how administrative hearings are handled (North Carolina calls them quasi-judicial, because they lump their appeals hearings into the same category).

As we discuss so often in our land use training sessions, Utah code does not require that public hearings be held for administrative items, and yet so often our jurisdictions do.  Why?  I generally think it’s a habit carried over from the early days of land use planning and regulation before we had a more clear understanding of the different types of actions we undertake.  North Carolina code and court rulings apparently stipulate that these types of actions (they are called evidentiary hearings in NC) be carried out in a much more formal, prescribed manner.  From Owens:

It is important to remember the purpose of evidentiary zoning hearings. Unlike legislative hearings, they are not designed to solicit broad public opinion about how the board should vote on the matter before it. Rather, they provide an opportunity for the board to gather the facts it needs to apply policies already set in the ordinance. Therefore, while the notice requirements are not as broad, the standards on gathering evidence are much more strict than they are for legislative hearings.

…(Z)oning decisions arise in those situations where the decision maker must investigate facts, draw conclusions from them, and exercise some element of discretion in applying standards that previously have been set in the zoning ordinance to a specific situation. This includes decisions on variances, special- and conditional-use permits, and appeals of administrative determinations. (you can see here how, as I noted, administrative and appeal actions in NC are combined).

The differences for handling administrative hearings applies as well to the notices that are given:

The notice requirements for an evidentiary zoning hearing are narrower than those for a legislative rezoning hearing. The purpose of the notice for these evidentiary hearings is not to let the entire community know about a proposed policy being debated but to alert those most directly affected about an opportunity to present relevant facts to those who are applying a policy already set in the ordinance.

Still, the constitutional guarantees of due process must always be observed: the parties to the matter must be given reasonable notice of the hearing. Thus an individual mailed notice to the applicant and any affected party who has requested notice must be provided. It is also a good idea to provide individual mailed notice to adjacent property owners, even though it may not be legally required.

Owens notes that while these meetings are appropriately open to the public, there is no right accorded to the public to speak in such meetings.

Since the purpose of an evidentiary hearing is to carefully gather relevant facts to aid in decision making, restrictions on what can be heard and how it can be heard are applied to these hearings.

Owens makes it clear that the applicant in such an administrative hearing has all the normal rights of more formal legal proceedings, such as

the opportunity to offer evidence, cross-examine adverse witnesses, inspect documents, and offer evidence in explanation and rebuttal.

This would obviously be handled by the applicant him/herself and people with them.  What is not so clear is how challenges to the proposed application would be handled, since there is usually no formal “opposing side” with a lawyer like in a courtroom.  I suppose rules could be put in place to require those who wish to make comments/present evidence to sign up ahead of time or something like that.  What is interesting in the North Carolina situation is that all speakers are to be sworn in, or at least “affirmed” prior to speaking, and are to be presenting evidence, not opinion or unsupported “facts.” Owens notes:

…it is inappropriate in an evidentiary hearing to consider nonexpert personal opinions or hearsay testimony.

At the conclusion of the meeting:

the board making the decision must adopt written findings of the facts upon which it is basing its decision. This contrasts with legislative zoning decisions, where no findings are required–those decisions are left to the sound discretion of the governing board, and the board is not required to explain why it made a particular decision. But since the purpose of an evidentiary hearing is to produce well-documented evidence to support a decision, the parties are entitled to know what the board concluded are the facts. Any judicial review of the decision is based on the facts as determined by the board making the decision, so the courts also need to know what the board concluded. This is done by requiring written findings of fact.

North Carolina’s approach may be a bit too legally formalized, but it may give us some lessons.  Taking what we get out of the piece I’ve described in today’s post, with what we learned from yesterday’s, maybe it’s time for us in Utah to think about adopting more clear and formal rules about the hearings processes for our land use decisions.  It may benefit everyone involved to understand better what is going on in our land use functions, why, and what it entails.  Let’s talk!

LET’S TALK! AND TALK. AND TALK SOME MORE…

May 9, 2022

On April 25, I posted on this blog about public meetings and hearings, the issues with the way they are conducted these days, and whether they are actually helping or hurting in the overall process of land use administration and policy-making.  In my May 6 post, I indicated that I have recently found some interesting research on this topic, and that I would share.  Well, it’s sharing time!

The first piece I want to write about and get you all to take a serious look at is one by Yale Law School Clinical Law Professor Anika Singh Lemar (what does clinical law professor mean?  According to Wikipedia, it is someone who is a member of the profession who is engaged to provide practical (clinical) instruction of students, in this case, the law.  I guess a few years ago I could have been identified as a clinical planning associate at the University of Utah planning program, as I taught a class about the politics of planning!  But I digress here…). She teaches the Community and Economic Development clinic at the law school, which provides assistance to housing developers, financial institutions, farms and farmers’ markets, fair housing advocates, and neighborhood associations.  She is also the Editor-in-Chief of the American Bar Association’s Journal of Affordable Housing & Community Development Law.

Her article, titled Overparticipation: Designing Effective Land Use Public Processes, was published last year in the Fordham Law Review.

Lemar describes in her piece many of the same problems we’re all familiar with regarding the public participation processes in land use meetings.  She says that the common refrain heard from academics and professionals alike is that these public participation activities are needed and necessary to ensure the involvement and buy-in of the community citizens, in part to counteract the malevolent interests of those who are only interested in building to make as much money as possible, usually against the community interest.  However, Lemar turns this notion on its head when she notes:

In fact, local control, community empowerment, and public participation are among the building blocks of residential segregation. It has long been the case that there is nothing inherently inclusionary about American notions of “community” or “public participation.”

How … can earnest cries for public participation to empower poor and marginalized people be squared with the use of the same tool to exclude poor people and people of color from tony, well-resourced neighborhoods? The community development and land use literatures are rife with the assumption that, when it comes to community control and public participation in development and redevelopment projects, poor and marginalized people benefit from more community engagement and public participation. Often, however, when it comes to land use decision-making, public participation is utterly dysfunctional—and poor people bear the brunt of that dysfunction.

Lemar recounts in her article the history and rationale behind public hearing requirements and processes for land use actions, much of it for good reasons, such as the 1960’s style urban renewal that often occurred without public input.  But then she describes how these processes have been essentially co-opted by a particular set of community citizens – mostly older, white owners of single-family homes in suburban-style neighborhoods.

There’s lots of background and detail in her piece that planners and land use attorneys will find of interest (or should!), but I’ll just commend it to you to read.  Here’s just a nugget that I came across that so succinctly sums up what part of the bigger problem is:

While at least one scholar acknowledges that conventional arguments in favor of public participation empower NIMBYs alongside the urban poor, no public participation proponent proposes a mechanism by which to distinguish the disenfranchised poor from the well-connected rich.

Or how about this one:

If the planning process is robust, we should be able to make the development approvals process more predictable. Most forms of development ought to be as-of-right under the zoning resulting from the planning process. Skeptics might point out that development approvals processes attract more participation than planning processes do. That, however, is precisely the problem created by the current system. Under the current system, there is little incentive to participate in the planning process, as the approvals process for any given development, subject to the whims of those who choose to testify, does not respect the planning document. As a result, fewer people participate in planning, and those who do participate are undermined by later participants in the development approvals process. If the planning process mattered and was less subject to being overruled during later development approvals processes, it would attract more attention and participation.

I want to talk briefly about what Lemar comes up with as possible fixes for these public hearing problems.  She uses as part of her solution the Revised Model State Administrative Procedures Act, which includes a section on public participation and how it should figure into decision-making processes.  The main difference with this is that the Act does include input from public processes, but also requires that decisions be made on the basis of independent analysis undertaken by the agency.  This is a good model for the administrative portion of the land use actions we undertake, and Lemar and others acknowledge that.  She indicates that there should be two different public involvement processes:

Similarly, legislatures, local governments, and courts ought to distinguish between rulemaking (zoning regulations) and contested cases (development approvals) in the land use context.

She advocates for states (in most cases, that means the legislature) setting out a dual track process for public input on land use actions.  For legislative actions, she says:

… (the) planning process ought to be framed in terms of change. What about their community would participants like to see improved? As Warren Logan suggests, even when they do not have the expertise to posit solutions, residents can identify problems which then might be solved through better planning and land use decisions. A planning process that explicitly describes the problem paves the way for later determinations of whether the problems have, in fact, been solved or exacerbated. In the context of planning and rezoning decisions, bureaucrats and commissioners ought to solicit public input widely, from within the city limits and beyond. Logan describes attending community festivals and get-togethers to solicit perspectives… . He does not rely exclusively on traditional public meetings, which, he explicitly recognizes, preference the perspectives of “wealthy homeowners.” There is no reason to preference the neighbors, and participation ought to be solicited broadly. While zoning enabling acts require that notice be given to neighbors, anyone ought to be able to register with the state to receive notice of land use hearings. This would allow affordable housing advocates, the homebuilders’ lobby, disability advocates, advocates for social services agencies, and others to receive notice and share their expertise. Crucially, however, the results of those participation processes must be filtered through planners and commissioners required to consider factors other than public opinion as presented in the public process.

Traditional public hearings are insufficient and should be supplemented with outreach to community organizations, historically disenfranchised communities, communities unlikely to attend public hearings, and communities susceptible to silencing by traditional public hearings. The zoning enabling act or zoning ordinance ought to set precise processes for outreach and require the planning agency to interrogate whether the community engagement process was effective. The process ought to reach those least likely to attend and testify at traditional public hearings through outreach at public schools, neighborhood festivals, and religious institutions: places where people congregate even if they do not have strong feelings about real estate development.

This (and more!) is what Lemar talks about for legislative land use actions.  She even brings up the need to counteract or balance “neighborhood defenders” (from a research work by Katherine Einstein at Boston University – more on this coming in a future post!) and “homevoters” (remember Zoning Rules! by William Fischel?).  The public often make statements in such legislative action hearings that are just plain untrue – like “this rezoning will cause traffic to make our local street fail” or “there will be more children than the schools can handle.”  In such cases, Lemar refers back to the Standard APA:

Under the Model State APA, following receipt of public comment, an agency must issue a final rule, accompanied by an explanatory statement that responds to “substantial arguments made in testimony and comments.” … Similarly, the AFH rubric required agencies to “[i]nclude a summary of any comments or views not accepted and the reasons why.” The requirement that the agency explain its reasoning and respond to the arguments is key. Narrowing the scope of testimony, as permitted by the Model State APA’s evidentiary rules, does not address the problem of veracity. Therefore, rather than allow an individual’s testimony—whether or not true—to stand on its own, the process ought to require bureaucrats and commissioners to address in writing the substance of all comments made, thus limiting a comment’s effect and impact if it is irrelevant or untrue or a resident overstates its importance. Requiring planners and commissioners to issue reports elucidating the results of public participation and the planners’ and commissioners’ responses to those comments serves an important documentation role, as well. … Planning and zoning laws should require planners and commissioners to explain their decisions rather than simply say that members of the public supported or did not support a particular choice. If an explanation is not required, there is no protection against the possibility that a proposal simply lost a public hearing popularity contest.

For administrative decisions, Lemar says that once the robust legislative planning process has taken place and rules are crafted that reflect those outcomes, those rules should mostly allow by-right development.  In cases where there may still be reviewable decisions, hearings and input should follow a different set of rules:

In contested cases, an evidentiary hearing is required if the applicable constitution or statute so provides. Evidentiary hearings are public but not generally open to public participation. One may seek to intervene if the applicable statute expressly permits or if one has an interest that may be adversely affected by the proceeding. The same should be true of development approvals. The Model State APA does not incorporate the Federal Rules of Evidence, but it does set minimum standards for the evidence presented in a contested case evidentiary hearing. The Model State APA requires that evidence be relevant and material: “The presiding officer may exclude evidence in the absence of an objection if the evidence is irrelevant, immaterial, unduly repetitious, or excludable on constitutional or statutory grounds or on the basis of an evidentiary privilege recognized in the courts of this state.”

Okay, I’ve gone on long enough with this post, I think you get the idea.  Read Lemar’s article.  Then I have one more to talk to you all about next, from a guy at the University of North Carolina School of Government, and then also about Katherine Einstein’s research on “Neighborhood Defenders.”  After that, we need to have a serious talk about what we can do about our required public processes for land use!

YOU REALLY THINK I’M THAT BAD?

May 6, 2022

Here’s a follow-up to the Millennials’ call for allowing more housing to be built (see April 28 blog post), this one by a local Millennial!  This is from a TEDx BYU Talk by Dejan Eskic, a senior policy analyst at the Gardner Policy Institute, who is:

“… a 30-something-year-old who is fully employed, my family and I have spent 18 of the last 24 months living in my in-laws’ basement. Not because we wanted to, but because we couldn’t find a house to buy,”

The problem, Eskic says, is due in large measure because:

Utah was already the fastest-growing state in the country over the past 10 years, and was already grappling with a housing shortage that fueled its affordable housing crisis long before the pandemic hit. Yes, Utah did see a spike in-migration from states like California in recent years, but it’s important to remember the majority of Utah’s population growth over the years has come from natural growth.

What does Eskic see as the solution?

While there is no one solution, Eskic said — noting that home construction needs to take advantage of technology to become more efficient and build homes quicker — another solution “has to do with us and how we grow and where we grow.”

But, he says,

“The biggest obstacle to more housing is us,” Eskic said. “We keep having kids, but when obtainable and affordable housing is proposed in our neighborhood, we scream and shout. And that mentality is really robbing our kids of a stable financial future.” Eskic went on to read a letter from a concerned citizen to a local Utah city council, in which the resident opposed a proposed townhome development and said they didn’t want to “live next to the kind of low-income people who typically reside in high-density housing. I do not want their delinquent children attending the schools that my children attend. I do not want to deal with the increase in crime and drug use that inevitably accompanies such high-density housing units,” Eskic read from the letter. “I do not want my home values to decrease.”

What to do?  Eskic continues:

“… we really need to lead with empathy and understanding, and ask ourselves, ‘Why do we need cheaper housing? Who’s it for?’” Eskic said. “It’s for all of us. It’s for our community, it’s for our kids, so we can have a stable community.”

Maybe the problem is how we make land use decisions, or at least how we obtain public input and what we do with it.  I have just recently found some really interesting research pieces on this topic, which I will be sharing in future posts.  Stay tuned!

COVID WASN’T JUST ABOUT HEALTH

May 5, 2022

There’s been a lot of talk about how Covid has impacted community growth and economics.  There’s even a cogent argument that much of the housing affordability crisis, at least in some places, has been due to Covid.  Utah’s rapidly rising costs for housing began prior to the covid outbreak, but it has likely exacerbated it.  Here’s a viewpoint on how covid has impacted housing costs from last week’s issue oh The Economist:

How the pandemic has changed American homebuyers’ preferences

Since March 2020, American house prices have risen by 33%. But the increase has not been evenly spread. The covid-19 pandemic, and the lockdowns and restrictions it inspired, have changed where homebuyers want to live.

In Florida’s Collier County, a haven for golfing pensioners, house prices were flat in the two years to February 2020. Since then, they have risen by 57%.

Warm-weather areas across the American south have seen some of the biggest increases in house prices.

Take Williamson County, Texas. The area ranges from the fringes of bustling Austin to its northern exurbs, and is home to Dell, a computer firm. House prices have grown by 75% in the past two years, compared with just 5% growth during the previous two—the fastest acceleration in America.

Other suburban and exurban counties have also seen big rises, especially ones with good weather. These areas often contain affordable housing and industries friendly to remote work.

THAT’S ONLY THE BEGINNING, FOLKS

May 4, 2022

The “wave,” or should I now call it the “tsunami,” of zoning reform continues to grow and sweep over the country.  To wit:

If anything shows growing nationwide attention to an issue, it’s when the federal government proposes some kind of action.  In the March 26 release of President Bidens’ budget proposal for the next fiscal year, included was an item:

… for creating a $10 billion state and local grant program meant to encourage and support zoning changes that would allow more kinds of housing to go up in what are often largely white and wealthier neighborhoods.

As reported in the online newsletter for state and local government officials, Route 50, the proposal would use federal grants as an incentive to spur changes with local rules, which critics blame for stifling affordable housing and fueling racial inequities.

“U.S. Department of Housing and Urban Development spokesman Michael Burns noted that in addition to proposing funding for states and localities changing their zoning rules, Biden as part of his budget is requesting a $50 billion increase in Low-Income Housing Tax Credits, as well as $25 billion to provide affordable housing grants to states and local housing finance agencies.”

Things are getting serious when the Feds step in like this.  The budget proposal, however, must first make its way through Congress, so there is no assurance that these programs will come about.  Still, it points out what is on the radar screens at the national level – zoning reform!

Next up, here’s a report from Planetizen’s editor James Brasuell as he attended the APA National Conference in San Diego this week:

I tried to attend two conference sessions on zoning reform. The first one, hosted by Jason L. Jordan, APA public affairs director, included YIMBY rockstar and former mayor of Culver City, Alex Fisch. The wall-to-wall standing room-only capacity of the room was too much for my post-pandemic nerves when I arrived there three minutes after the session started. From what I saw on Twitter, the room was full beyond capacity several minutes before the session started. I think this is maybe a sign of latent demand in the profession for zoning reform. Has the housing affordability crisis finally hit a tipping point where planners all over the country are finally getting behind the cause, following the example of the avant-garde of Minneapolis, Oregon, California, and, just last week, Maine?

I did manage to attend a working session where attendees gathered around tables to discuss the challenges and opportunities of zoning reform. The room was clearly behind the cause, but nobody knows better than planners the many obstacles to achieving the desired effects of zoning reform—most namely cultural resistance from a nation of aspiring single-family detached home owners and market considerations like what developers are willing to build and bankers are willing to finance.

Standing room only!  That says something about the expanding nature of this issue.  To James’ point about cultural resistance to zoning reform, comes this: 4 Cities Sue to Stop New California Law Permitting More Homes in Single-Family Neighborhoods.

“It is undisputed that planning and zoning laws are matters of municipal affairs,” the petition states. “The constitutional right of municipalities to zone single-family residential districts and the sanctioning principle upon which that right is founded has been well settled law for almost 100 years.”  By enacting SB 9, the state “eviscerated a city’s local control over land use decisions and a community-tailored zoning process,” the petition states.

Brasuell also mentioned the latest happening in Maine.  The state legislature there last week passed a bill that makes it easier for ADUs to be built in all R-1 zones throughout the state.  This was a considerable step back, however, from the bill as originally proposed by the Maine House Speaker earlier in the session.

The Speaker removed a provision to create a state board that could have overridden local project decisions as well as the provision that would have blocked growth caps.

The more stringent provisions were removed as opposition from Maine’s municipal association found sway with a number of legislators.  Even with the watering down of the bill to just deal with ADUs,

the bill was still opposed by the Maine Municipal Association along with most — though not all — Republican lawmakers.

The Maine situation reminds me to some degree of what has been happening here, where more draconian zoning reform measures have been discussed by lawmakers and state level policy people, but negotiations with municipal officials have resulted in less sweeping changes in state codes.  As I’ve noted previously, this is likely the better way to go because in places where zoning reform has been mandated from the state level without much regard to local concerns, the foot-dragging and downright opposition to implementation is dramatic.  In our case, the “reforms” that have been passed have generally had the support of the League and municipal officials, in large part because of the dialogue that has taken place.

In the last meeting of the Utah Commission on Housing Affordability, it was noted that their next meeting on May 11 would likely focus on the models for evaluating progress on housing affordability enhancement, including maybe the idea of “regional fair share” for communities (I opined on this in my March 23 blog post).

While we maybe are not being completely engulfed by the zoning reform tsunami as some other places are, we should by no means be taking our eyes off the horizon to see what else may be coming!

WON’T YOU JOIN US?

May 3, 2022

The list of legislative interim study items I posted yesterday was disappointing to me in one big way – there was only a passing mention of annexation.  As I’ve noted in previous blog posts (see December 31 and March 10 posts), the annexation provisions are a mess in our state code.  It has been the subject of intense discussion by the land use task force in the past, and was even seriously being looked at for major changes, if not outright recodification, at one point before being shelved because it was complicated and fraught with political landmines.  But it still needs to be done!

Two recent news stories highlight the ongoing need for this issue to be resolved – residents of a subdivision petitioning to disconnect from a city, and a local boundary commission action that would allow for property from one community to be moved into another, though it is questionable that state code allows for such an action.

My good friend and colleague, the former property rights ombudsman Brent Bateman, and I have been brainstorming things that seriously need to be reworked in our state annexation code section.  It really needs a complete rewrite, because we both agree that so much of the code is just hard to understand and make sense of, because of the way it was originally written, and because of the numerous amendments made to it over the years.  Recodifying is what really needs to be done.  But that’s a big political lift, given all the various players involved in this process.  Though I will say, it is likely less than what it was a number of years ago when the annexation code was last substantially rewritten because the big disputes between unincorporated communities and cities in Salt Lake County is pretty much settled now since the establishment of the metro townships (we could write a book on the whole townships saga over the years, how that came about, the back-and-forth, and the mess it left in the annexation code).

Here are some of the things that need to be addressed in the state annexation code:

• “rural real property” owners have the ability to completely stymie proposed annexation if they (even one owner!) does not agree to be annexed. We have it on credible information that the definition of rural real property was an oversight when amended into the code a few years ago.  This needs to be changed.  The whole concept of rural/agriculture in the annexation process needs to be rethought, because annexation is as much a tool to manage growth as zoning, general plans, and other techniques are.  It should be treated as such.
• The way islands/peninsulas are treated in the code should be reconsidered. While generally not a good idea, there are times when they may be necessary or may even make some sense.
• Rewrite the code to uniformly apply to all counties statewide. The current condition in which “first class” counties have a separate set of (confusing!) rules from “specified” counties is a holdover from the townships wars in Salt Lake County that then spread to other counties.  Get rid of this (at the very least, rethink it!)
• Reconsider the requirement for feasibility studies. Instead, couch any requirements for studies in the concept of growth management – what makes the most sense to deal with future development and how to provide the necessary urban services. For discussions about annexation as growth management tools, see Rethinking Municipal Annexation Powers by Laurie Reynolds in The Urban Lawyer journal,  and Annexation: Briefing Paper by the Puget Sound Regional Council.
• Take a look at the ability of property owners to opt out of proposed annexations – this can sometimes stymie good growth management and service provision for the future.
• Consider whether there should be limitations or rules put in place for exactions or other requirements for proposed annexations. As a legislative decision, the cards are all in the hands of the municipal officials as to what conditions they may put in place in order to consider approving annexation of property.  This may result in unfair or overly burdensome requirements for some properties which then transfer to future community residents.
• Clarify the role of the Local Boundary Commission and what its authority is. It is rather unclear in the present code.

These are just some of the annexation issues that need addressing.

Looking for some thoughtful (and brave!) legislators, local officials, and property owners to step up and help make this necessary change happen.  It is an important and overlooked tool for the management of growth in our pretty, great state!

NO REST FOR THE WEARY (WICKED?)

May 2, 2022

Last week the Legislative Management Committee met and, among other things, set the calendar for interim committee meetings for the coming year.  Another thing the committee did was assign study items to each of the committees for the interim.  The list includes some interesting topics of interest to planning and land use junkies.  They include:

Economic Development and Workforce Services Committee:

Housing Affordability. Follow-up to previous housing affordability bills and opportunities for improvement. Relevant 2022 GS bill: HB 462.

Aligning Economic Development Efforts Between the State and Cities. Review ways to work with local governments to set aside areas for economic growth. How do we encourage job centers to be established throughout the state, rather than concentrated in one or two areas?

Government Operations Committee:

Open and Public Meetings Act (OPMA). Review potential amendments to OPMA, including the public comment portion of public meetings.

Regional Land Use Planning. Study the current land use regulatory framework and whether land use planning should be coordinated at a larger, regional scale. (This will be interesting to see where this one goes, especially now that Rep. Steve Waldrip, who had been doing a lot of research about this, will still be in the legislature for this interim, but not for next year’s session).

Natural Resources, Agriculture and Environment Committee:

Potential New State Park. Study the feasibility of creating a state park along the Oquirrh Mountains.

Wildfire Issues. Study wildfire ignitions and fire suppression efforts, including how to assist communities in the wildland-urban interface to reduce wildfire risks and lessons learns from the Marshall fire in Colorado.

Regional Water Strategy. Study creating a regionalized plan for water use and how to measure the effect/progress of legislative efforts to improve water use efficiency and increase flows into the Great Salt Lake.

Political Subdivisions Committee:

Study of Continuing Care Retirement Facilities. Determine what amendments to the Continuing Care Provider Act (Title 31A, Chapter 44) can improve operation of these facilities, which may only exist where municipalities or counties have zoned for continuing care facilities. For example, a facility in Taylorsville wants to be able to borrow money and give a payout to their shareholders. The committee will study how to approach bonding and debt.

Challenges for Political Subdivisions Related to Short-term Rentals. Study the proliferation of short-term rental properties and related challenges, including crime, noise ordinance violations, and decreased affordability. HB 462 – Utah Housing Affordability Amendments originally included a repeal of the language prohibiting local governments from using Airbnb or similar sites to punish individuals for listing or offering a short-term rental. The repeal was taken out of the substitute with the understanding that the stakeholders would continue working on this issue. (This issue continues to grow.  The recent shooting deaths of two people at an STR in Draper just add lots of fuel to this fire.)

Use of Eminent Domain by Local Governments and the Role of the Property Rights Ombudsman. Study how often local governments use eminent domain and for what purposes. Several bills during the 2021 and 2022 General Session sought to make changes to eminent domain, and HB 416 – Property Rights Ombudsman Amendments would have added responsibilities to the ombudsman’s office. This study would include an evaluation of the relationship between annexation and eminent domain.

Supreme Court Case Review. Review recent and pending Supreme Court cases that will impact political subdivisions in Utah. Currently, a case that may impact statute and/or municipal code related to billboard advertising is before the Supreme Court (City of Austin, Texas v. Reagan National Advertising of Texas Inc.).

Transportation Committee:

Capital Planning. 2022 General Session HB 322 moved capital planning and development for all fixed guideway projects that use state funds under the authority of the Utah Department of Transportation (UDOT). The committee will study the structure of UDOT’s oversight on Utah Transit Authority’s projects, especially the bus rapid transit projects planned throughout the state.

Statewide Transportation Improvement Program. UDOT’s Statewide Transportation Improvement Program (STIP) is a six-year plan of highway and transit projects for Utah and the legislature has allocated more than $1 billion toward the STIP over the last two sessions. The committee will study the project list and prioritization and how transit projects moved under UDOT’s authority will impact the project list.

In addition to these interim study items, there will be the activity generated by the funding provided for the statewide conversation about growth to be conducted by the Governor’s Office of Planning and Budget (through state planning coordinator Laura Hanson’s office), and the funding for two non-profit-led initiatives on land use law and on housing affordability (these efforts will be fleshed out in the coming months through RFP processes by the Dept. of Workforce Services).  And of course the continued work of the Unified Economic Opportunity Commission and its subcommittee that used to be the Commission on Housing Affordability.

It’s going to be a busy summer and fall!

THEY LOOK YOUNGER ALL THE TIME

April 29, 2022

As a follow up to my previous post on millennials and the housing crisis, here’s a piece from The California Planning & Development Report  https://www.cp-dr.com/articles/nimbyism-the-way-out about the waning influence of NIMBYs in the development review process.  While the writer Josh Stevens attributes the decline to a number of factors, the growing number of younger people looking for housing is certainly part of it.

Economically, only 54% of housing units in California are owner-occupied, a full ten percentage points lower than the national average. By definition, everyone else rents or borrows (or is unhoused or dependent). Those renters may or may not actively support development. But they are highly unlikely to support the NIMBY agenda. Anyone who aspires to purchase a home is likely to actively oppose it (and these are mostly millennials).

Many planning departments shed veteran staff members following the Great Recession. A new generation of young entry-level planners and progressive mid-career planners are taking over. The same can be said for many city councils too.

From a political perspective, I think they’re (local officials) going to hear increasingly fewer strident voices of opposition at public meetings in the coming years. Those voices might not be any less loud, but they’ll be less numerous (as those older homeowners fade). In a democracy, numbers are supposed to matter more than volume.

Utah has more young people getting ready to set up their own households than just about anywhere else in the country.  I’ve also heard a few of those older homeowners make comments about their concern about their now-grown kids not being able to find an affordable place to live.  The shift away from NIMBYism may be coming to a community near you sometime soon!

WAIT, DID YOU JUST SAY SOMETHING?

April 28, 2022

An opinion piece by Washington Post columnist Catherine Rampell, titled Stop Blaming Millennials for the Housing Crisis few days ago struck me as a voice of someone who is most affected and who has the least say in our local land use processes.  Some excerpts:

The country has turned against my generation once again, this time for having the nerve to try to find somewhere to live.

Home prices and rents have skyrocketed, and available homes for sale recently reached record lows. Bidding wars are fierce. And if a spate of recent news coverage is to be believed, millennial “Zoom towns” are to blame for the resulting housing crisis, particularly in lower-cost areas.

Apparently, the problem is not the chronic underinvestment in new construction over the past decade. Nor is it exclusionary zoning and other NIMBYist obstruction of more, and denser, housing. Never mind that boomers are increasingly hanging on to their many-bedroom domiciles rather than downsizing upon retirement, in part because of state tax laws that reward incumbent homeowners for staying put.

Ignore the persistent supply-chain problems and tariffs that have increased the cost and build time for new construction.

No, the problem is us young(ish?) whippersnappers. We entered our prime childbearing years and then callously decided to put a roof over our children’s heads. If once millennials were accused of failure to launch, now we’re faulted for launching too aggressively.

Much of the problem, Rampell says, is really due to existing homeowners.

You can’t build (new housing) where there’s some aging retail — as in northwest Washington, D.C., where a developer wants to construct 99 new residential units (most of which would be reserved for residents who make less than 60 percent of the median income) and a nonprofit arts space. A local group, Friends of 14th Street, is working to quash it.

The group is “not objecting to affordable housing,” it argues, echoing NIMBYists everywhere. “What we are objecting to is the size, density and scope of the project.”

But millennials are not only victims of the more recent and widespread affordable housing crisis. We are also somehow blamed for it, even though it is older, incumbent homeowners who refuse to either move or permit the creation of new housing for others to move into.

So I ask again: Where exactly are we allowed to live, per the judgment and voting behavior of our elders?

Her piece is the voice of those who are hardly ever heard in those rezone meetings.  And it demonstrates the problems we have with our present process for public hearings and comments.  It’s worth the read.

https://www.washingtonpost.com/opinions/2022/04/21/stop-blaming-millennials-for-housing-shortage-spike-in-prices/

THE MORE, THE MERRIER

April 27, 2022

Just to show how ADUs and the idea of the need to increase the supply of housing has become mainstream, here’s a story from the current edition of The Economist.

COTTAGE INDUSTRY

How granny flats help boost housing supply and lower emissions 

A nightmare,” is how Sam Schneider, a co-founder of Homestead, a startup that finances and builds granny flats, describes the permit process in California. Yet, sitting on the rooftop deck of his office in Los Angeles, he concedes that the paperwork is getting easier. Granny flats—or Accessory Dwelling Units (ADUs), as Americans call them—have taken off in California and cities around the American West as house prices have soared.

An ADU is a cottage or flat built on the same lot as a single-family home. Owners rent them for cash, or house family in them. About 180 municipalities in California passed ADU laws between 2017 and 2020. Los Angeles issued permits for nearly 6,700 units in 2019, up from about 4,100 in 2018. Seattle approved some 500 in 2020 and 800 in 2021. Tobias Peter of the American Enterprise Institute (AEI), a think-tank in Washington, DC, views ADUs as one example of “light-touch density”, which also includes splitting single-family homes into several units. Such conversions may become more common in California thanks to a law passed last year which eliminated single-family zoning.

Things are moving more slowly in cities with strict zoning codes. Denver approved just two granny flats in 2010 and 71 in 2019. Many single-family homeowners in Colorado’s capital who want to build an ADU must petition the city to have their plot rezoned, which can take months. Permits and construction can also be costly and confusing. That is where startups like Homestead come in. As interest in ADUs grows, so does the number of firms wanting to build them.

It is no mystery why local officials are keen on granny flats. They are “low-hanging fruit”, says Mr Peter. The infrastructure costs of adding a new unit on undeveloped land are $50,000 more than for an “infill” unit, according to AEI.

High-density developments are also greener than single-family ones thanks to reduced heating and cooling costs, and shorter commutes. Adding units to urban areas allows more people to live close to public transport and the places where they would work or socialise, curbing transport emissions. Encouraging density rather than sprawl would avoid “letting the affordability and housing crisis further our climate woes”, says Lauren Sanchez, a climate adviser to California’s governor.

Granny flats alone will not solve California’s housing crunch, but their popularity is a good sign. “If you create enough housing stock,” says Mr Schneider, Los Angeles and San Francisco “become places where people can actually live, and not places where people can only leave.”

THE WISDOM OF CROWDS

April 25, 2022

I want to expound today a bit (well, actually, a longgg bit!) on a topic that plays a key role in the land use process – public hearings and public comments.  It’s something we talk about in every land use training session I do. A few years ago I even did an hour long session just on public meetings and hearings.  It is a crucial factor in much of what happens in the land use arena.

In those training sessions, I always point out that the land use process in Utah consists of two main functions – the legislative and the administrative (there’s actually a third – the quasi-judicial, but I digress).  Under LUDMA in the Utah state code, legislative actions (general plans, land use ordinances, zoning and rezonings, annexations) must first receive public hearings by the Planning Commission before they can move forward.  This seems a good requirement as these are policy level actions where the opinions of the residents of the community are entirely appropriate. And that’s pretty much what we get from citizens in public hearings, their opinions, right?  Administrative actions (consideration of land use applications like conditional uses, site plans, subdivisions, and so on) are not required by LUDMA to have a public hearing. This again seems appropriate because, as just noted, we usually just get opinions from the public, and administrative decisions must be based on facts and evidence.  Yet many, if not most, land use administrative actions undertaken in our local governments hold public hearings.  Why?  Custom mainly, I think – it’s always been done that way. That’s a topic for another discussion.

All this was brought to top of mind for me by two recent writings I saw.  The first was a post on the APA Utah website by my good friend, former professional colleague and current fellow Kaysville planning commissioner Paul Allred, titled Clamor Is King  https://apautah.org/clamor-is-king/  In it, Paul notes how the public hearing process used in virtually every community often results in the stifling of reasonable and needed new and varied housing, especially in this time of a housing affordability crisis.  He says:

… it appears to me that the approval process for development is inconsistent, tremendously subjective and emotional, and far too inflexible to allow for the natural development of our communities. Rezones, are perhaps the most indicative example of systemic flaws in addressing both local and societal crises such as creating desperately needed housing.

And this for legislative actions, according to Paul, which are subjective at best.  What does that say about hearings for administrative actions?  He goes on to propose some ideas for modifying the public hearing process ground rules, which are worth considering.  Paul also told me when we talked recently that he’s working on his version of Martin Luther’s 95 Theses, but in this case about public hearings, not religion (whew!).  Love to see those, Paul.

The second thing I read was a piece on The Atlantic website titled Community Input Is Bad, Actually, by Atlantic staff writer Jerusalem Demsas  https://www.theatlantic.com/ideas/archive/2022/04/local-government-community-input-housing-public-transportation/629625/He introduces the issue this way:

Development projects in the United States are subject to a process I like to call “whoever yells the loudest and longest wins.” Some refer to this as participatory democracy.  Across the country, angry residents and neighborhood associations have the power to delay, reshape, and even halt entirely the construction of vital infrastructure. To put a fine point on it: Deference to community input is a big part of why the U.S. is suffering from a nearly 3.8-million-home shortageand has failed to build sufficient mass transit, and why renewable energy is lacking in even the most progressive states.

Demsas goes on to say:

Democracy is at its best when the views and needs of the people are accurately transmitted to their representatives, the representatives act, and voters express their approval or disapproval in the next election. The existing community-input system purports to improve upon this process by offering a platform where anyone can show up and make their voice heard. After all, providing input shouldn’t just happen at the ballot box, or so the thinking goes. But the process is fundamentally flawed: It’s biased toward the status quo and privileges a small group of residents who for reasons that range from the sympathetic to the selfish don’t want to allow projects that are broadly useful.

Demsas goes on to give several illustrations of his point.  I’ll just throw in another clip because he so succinctly captures the nature of many of our citizen input sessions:

… developers have to present their projects at public meetings. Community members can come and register their opinions about apartment buildings, homeless shelters, dorms, and on and on. Even someone attempting to convert her garage into a mother-in-law suite might need the approval of her neighbors. It’s like a homeowners’ association from hell, backed by the force of the law.  In the Bronx, a neighborhood meeting on April 19 where hundreds of potential homes were up for debate devolved into chaos as residents shouted “Go home” and “Do you live here?” at the presenter. As the developer struggled to make clear that this project would bring much needed housing to the area, someone shouted “We don’t need affordable housing” as their neighbors applauded.

In summing up the problem, he writes:

The community-input process is disastrous for two broad reasons. First, community input is not representative of the local population. Second, the perception of who counts as part of an affected local community tends to include everyone who feels the negative costs of development but only a fragment of the beneficiaries.

Not everybody is a complainer, but pretty much everyone who shows up to community meetings is. Katherine Einstein, David Glick, and Maxwell Palmer, Boston University political scientists and co-authors of Neighborhood Defenders, examined zoning and planning meetings across Massachusetts. They found that a measly 14.6 percent of people who showed up to these events were in favor of the relevant projects. Meeting participants were also 25 percentage points more likely to be homeowners and were significantly older, maler, and whiter than their communities.

What’s Demsas’ answer to all this?  Well, as has been evident in some states recently, he says the decision making level should be moved higher.

Local government is fundamentally not equipped to internalize and weigh the benefits and costs of large infrastructure projects, which can affect the economic and environmental prospects of the whole nation.  … moving decision making from the hyperlocal level to the state level is the first step to fixing the broken development process. This would ensure that a larger proportion of voters had a say, though an indirect one, in housing, transportation, and renewable-energy policy, because more people vote in these elections than hyperlocal ones. We have to let representative democracy actually work.

Is this the right approach?  Maybe, maybe not. I’m hesitant to think so.  It certainly is worth a discussion. Maybe a topic at an upcoming conference?

SIGN OF THE TIMES

April 23, 2022

The U.S, Supreme Court handed down its decision in the Reagan National Advertising case in Austin on Thursday.  Bottom line, it does not look like any dramatic changes are resulting from this case, which went Austin’s way. Here’s a summary from the American Bar Association Journal:

The U.S. Supreme Court gave the city of Austin, Texas, an initial win Thursday in a challenge to its sign restriction allowing digital billboards on business property but not off premises.

The high court ruled that the distinction between on-site and off-site digital billboards was content neutral under the First Amendment and not subject to strict scrutiny.

The challenge was filed by two outdoor advertising companies, Reagan National Advertising of Austin and the Lamar Advantage Outdoor Co. Austin, Texas, had denied their permits to digitize some of its off-premises billboards.

The Austin, Texas, restriction banned digital signs advertising a business, activity, goods or services that were not located on the site where the sign was installed.

The 5th U.S. Circuit Court of Appeals at New Orleans had held that the billboard restriction was content-based because it required an inquiry into “who is the speaker and what is the speaker saying.” The appeals court then applied “the onerous standard” of strict scrutiny and ruled that the restriction was unconstitutional, according to the opinion by Justice Sonia Sotomayor.

The Supreme Court reversed the 5th Circuit. The off-premises distinction “is agnostic as to content,” Sotomayor said. The sign code doesn’t single out any topic or subject matter for differential treatment. Rather, the provisions treat signs differently “based solely on whether it is located on the same premises as the thing being discussed or not.”

Sotomayor’s opinion was joined in full by Chief Justice John Roberts and Justices Stephen Breyer, Elena Kagan and Brett Kavanaugh.

Sotomayor noted that distinctions between on-site and off-premises signs proliferated after enactment of the Highway Beautification Act of 1965, which directed states receiving federal highway funding to regulate outdoor signs near federal highways.

“The dissent would hold that tens of thousands of jurisdictions have presumptively violated the First Amendment, some for more than half a century, and that they have done so by use of an on-/off-premises distinction this court has repeatedly reviewed and never previously questioned,” Sotomayor wrote. “For the reasons we have explained, the Constitution does not require that bizarre result.”

The case will now be remanded for an evaluation of the sign regulation using intermediate scrutiny, which requires a restriction on speech to be narrowly tailored to serve a significant governmental interest.

The case is City of Austin, Texas v. Reagan National Advertising of Texas.

https://www.abajournal.com/web/article/supreme-court-rules-for-austin-in-digital-billboard-case-first-amendment-inquiry-isnt-over

DOUBLE WHAMMY

April 22, 2022

Yesterday saw two hits in the housing affordability saga in Utah.  First was a poll in the Deseret News about what Utahns think should be done about housing affordability.  Here’s the very mixed results:

• Sixteen percent of Utahns said zoning restrictions should be adjusted to make it easier to rent out parts of their home, like their basements or spare rooms. (The Utah Legislature did pass a law aimed at this in 2021, HB82, which prohibits cities from restricting certain accessory dwelling units with some exceptions.)
• On the other hand, 15% say state and local governments should do nothing and let the free market play out. The most support for this came from those who identified as “very conservative,” of which 23% picked “do nothing.”
• Another 15% say zoning restrictions should be adjusted for manufactured housing, tiny homes and other nonconventional construction methods in order to build homes more quickly.
• Another 15% said Utah should expand funding to subsidize low-income housing. (The Utah Legislature over the past two years has approved a record amount of funding for housing and homelessness programs, including about $50 million in 2021 and another $70 million this year, though housing advocates have said it’s still far from enough.)
• What about rent control? That’s an option favored by 13%.
• As for more high-density, high-rise residential development, 7% picked that option.
• Only 5% said state and local government should adjust zoning restrictions to allow for quicker construction.
• Thirteen percent answered “other.”

It was interesting to see what the responses were from some of the political players in this crisis  Cameron Diehl of the League noted that many of the factors causing the run up in prices are beyond control of local government, and besides, there have been a record number of new housing units permitted and under construction the last couple of years, so how much of this is really caused by local regulations?  Senate President Stuart Adams, a developer by profession,  noted:

over-subsidizing housing “actually create(s) more demand, which makes prices rise.” So the solution, he said, is to rely “on the free market” while also upping inventory to relieve demand pressures, whether that’s letting more people rent out their basements or helping developers get their subdivisions approved faster.

“Trying to streamline the regulatory process, I support. Trying to reduce the regulations, I support. And it sounds to me like the public’s really keyed in on that,”

Read the entire story on the poll at https://www.deseret.com/utah/2022/4/21/23032120/housing-market-utah-prices-rent-control-free-market-solutions-predictions

The second shot, and a big blow, was the announcement by Rep. Steve Waldrip that he’s withdrawing from his re-election bid to his Utah House seat.  Waldrip has become the go-to guy the last couple of years in the legislature on land use legislation, having been the primary sponsor of housing and land use bills.  Steve, a former planning commissioner in Weber County, really took the time to learn about land use issues and potential solutions.  He was also serving as co-chair of the Commission on Housing Affordability.  His stated reason for pulling out of the race is that he thinks he can be more effective on the housing issue

“because I have a unique opportunity over the next few years to make a significant impact in housing availability and affordability with the social benefit investment fund I co-founded. The Rocky Mountain Homes Fund addresses a huge need in our state and will require all of my time and attention to manage and direct the current and projected growth,”

But I can’t help but think another factor was the primary battle he was facing from candidates who were attacking him on his moderate positions on several issues, including on housing.  From one of his opponents:

Among other things, (Kyle) cited the incumbent’s apparent support for measures that promote high-density housing.

Steve will be sorely missed!  You can read the sad news here https://www.standard.net/news/local/2022/apr/21/waldrip-drops-out-2-gopers-remain-in-race-for-district-8-utah-house-post/

WHAT HATH HE WROUGHT?

April 21, 2022

When we get to a certain point in life, we have a tendency to look back and see what maybe we left behind, what did we help make better or mess up?  Well, I get to wonder about mine now. A new report out listing the most unaffordable counties in the country for housing includes in the top ten the two counties I worked my entire career in – Davis and Salt Lake!  Yeow!

Here’s an excerpt:

The report says Davis County has a home appreciation price of 34.1% in the last three years. The homes in Davis County cost 73% of one’s income. The median income of a Davis County resident is $36,597 with a median home price of $428, 765.

Salt Lake County has a 38.7% home price appreciation in the last three years with homes costing as much as 77% of a resident’s income. The median home price in Salt Lake County is $449, 365.

Anyone still doubting there’s a housing affordability crisis in our pretty, great state?

You can see the entire report here  https://www.moneygeek.com/mortgage/analysis/unaffordable-us-counties-for-homeownership/

LAND FOR HOMES

April 20, 2022

The Deseret News editorial board expressed its support for the recent proposal by Sen. Mike Lee, Mitt Romney, and others to make federal land available for private housing development as a solution to the housing affordability crisis

Opinion: Is this a solution to Utah’s housing crunch?

Utah Sen. Mike Lee has a bill that would let state and local governments buy federal land at a discount, to be used for the construction of affordable housing. It is, he and others say, a way to help alleviate a housing shortage that has been especially vexing in the American West, driving a surge in home prices to unprecedented, and largely unaffordable, levels.

As solutions go, this one is creative and novel, and it is worthy of serious consideration. It has the support of Utah’s other senator, Mitt Romney, and a host of local government officials in Utah. It would not affect national monuments or other sensitive public lands, and so it should not fuel long-standing political feuds over those public lands.

It would be just one tool. It would not, on its own, solve a shortage the Kem C. Gardner Public Policy Center has estimated at about 44,500 housing units in Utah, alone. But it is an idea. It’s worth considering. And it hopefully will stimulate other potential solutions.

About two-thirds of Utah is federally owned, but much of that is in rural or undeveloped areas. Salt Lake County has relatively little of it that isn’t already designated as forest or recreation land.

Along the Wasatch Front, the housing shortage could be impacted more by zoning ordinances or, as the Utah Foundation put it, the construction of more “middle housing.” This refers to “a variety of multifamily housing options focusing on neighborhood walkability and being affordable to various income levels,” a report by the nonprofit public policy organization said. This could include fourplexes, duplexes, townhomes and other multi-unit construction.

But the problem is much more complicated than that. It has to do with supply shortages exacerbated by the pandemic, and with a shortage of construction workers.

As a Deseret News report late last year made clear, the West’s housing shortage predates the pandemic by more than a decade, its roots running back to the great recession that began around 2008, when real estate prices temporarily crashed and construction halted.

As Bloomberg noted, the housing market didn’t catch up with demand during the 2010s, a time during which about half as many homes were built as during the previous decade. The demand built up a steadily rising logjam in available homes, and that was especially true in Utah, which had the fastest-growing population in the nation during that decade.

The pandemic exacerbated this problem, not only with supply chain and labor problems, but with changing preferences. Many people began to work from home, creating a demand for houses that would accommodate such a lifestyle.

Now, with the Federal Reserve signaling it will continue to raise interest rates, some experts believe fewer people will enter the housing market. But in high-demand states such as Utah, that might not reduce demand.

None of this should keep Congress from considering the bill Lee is sponsoring. As the Deseret News reported this week, officials in rural areas and emerging Utah cities see it as an important way to open land to housing development.

“If this act is passed, it would allow counties like Uintah County to provide opportunities for affordable housing to be built,” said Steve Evans, Vernal Area Chamber of Commerce Legislative Committee chairman. The St. George and Cedar City areas also could benefit from it. Significantly, the National Association of Counties endorses the bill.

And the bill would come with rules. It would require that at least 85% of the federal land purchased be used for residential housing and related community needs, and that the density be quarter-acre lots at the most. Those community needs would include schools, churches, grocery stores, hospitals and health clinics. Also, no more than 15% of property could be used for commercial purposes.

Those parameters ought to satisfy worries that this might be used to subsidize homes for the very rich.

David Garbett, an advocate and former candidate for Salt Lake mayor has criticized the bill, saying Lee ought to instead work to facilitate federal land swaps with state institutional trust lands, something he told KSL the senator could do without new legislation.

Indeed, that also is a suggestion worthy of consideration.

The West’s housing shortage is complex and difficult. It needs all the creative solutions leaders can muster.

https://www.deseret.com/opinion/2022/4/12/23021011/utah-west-housing-shortage-home-prices-buy-federal-land-development-one-tool-affordable

AN OPENING IN THE WALL?

April 18, 2022

Just saw a survey by Zillow about how people of all ages and backgrounds have generally positive feelings about missing middle housing, even in predominantly single-family neighborhoods and among older homeowners.  Here’s a couple of interesting quotes from the survey report:

There is broad support to allow accessory dwelling units, duplexes and triplexes in residential neighborhoods, according to a new Zillow survey covering 26 U.S. metro areas, many of which are struggling with housing affordability. A clear majority of homeowners surveyed (73%) voiced support for at least one of these “modest densification” options, and support was higher among renters (84%).

Across the 26 metro areas Zillow surveyed, residents were more likely to support allowing accessory dwelling units (69% supported versus 23% opposed) and duplexes and triplexes (61% supported versus 31% opposed) in every single metro.

When asked about the impact that duplexes, triplexes and small/medium apartment buildings would have on the availability of affordable housing options, about two-thirds of respondents said that duplexes/triplexes (67%) and small/medium apartment buildings (68%) would have a positive impact…, (but) homeowners revealed a much larger, 15-point gap: 63% said allowing small/medium apartment buildings would have a positive impact on affordability, while only 48% agreed they would support apartment construction in their neighborhood.

All this reminded me of a recent rezoning attempt in a single-family neighborhood in Kaysville, where I serve on the Planning Commission.  I think it is maybe indicative of some of the evolving attitudes of residents, particularly homeowners, about “gentle” increases in density and housing styles.  This is a single anecdote so it may be a stretch to say this is a trend, but if the Zillow survey is any indication, maybe not.

The property proposed for rezone was a half acre located on the corner of the intersection of a subdivision street with the busy Main Street (a UDOT collector road, with Davis High School right across the street).  The property had been used for some time as a community garden, allowed by the prior property owners, but a new owner purchased the property and sought a rezone to allow for the construction of 6-8 townhomes.  The existing residential zoning would allow for three homes on the property.  At the Planning Commission hearing on the proposed rezone, the expected usual concerns and opposition were expressed by the residents of the adjacent single-family neighborhood.

After the public comments, during discussion by the PC members, it was pointed out that a rezone from single-family to R-2 zoning would allow for the construction of three duplexes on the property, which would be about the same number of units as those sought by the applicant, but more of a single-family home character than the townhouses would be (it was later pointed out that a similar result could be achieved through approval of a conditional use for twin homes under the existing zoning).  Either way, there could be more units provided, and the character of the neighborhood essentially maintained.  Several residents came up during the public comment portion of the meeting later and expressed their willingness to support such an outcome rather than having townhomes built.  The matter was tabled to allow for further discussion with the applicant by staff, and for the applicant to have some discussions with neighborhood residents.  Ultimately, the applicant chose to pursue the original rezoning request.  The Planning Commission voted to recommend approval of the request along with a development agreement that would have design and parking requirements beyond what would normally be required under just a straight rezone.

When the matter went before the city council, the residents were there again in force to opposed the rezone as proposed.  A couple of council members mentioned that they had heard about the previous discussions about duplexes or twin homes and wondered why that had not moved forward.  In the end, the council denied the rezone request.

Given what was just pointed out in the Zillow survey, this ultimate outcome was probably not a surprise.  But it seems that the door may be open for more “missing middle” type development, even in single-family neighborhoods, as seemed to have been the case in this rezone story.  Something worth considering.  This may be a way to increase the number of badly needed housing units in our communities, at least to some degree.  Which is better than nothing!

COULD THIS BE US? BEWARE!

April 15, 2022

I’m going to do something I only rarely try to do, which is post the complete text of someone else’s opinion piece.  This one is worth doing.  It is written by Diana Ionescu, editor of the website Planetizen.  She writes about what I feel to be one of the main issues of the day, zoning reform as a solution to housing affordability.  She writes about what is happening in California, and while I don’t believe that we here in our great state of Utah will go entirely down the same road as the Golden State has, we have plenty of similarities.  Let’s just say that I am posting her entire piece as an object lesson – be careful, this could be us if we don’t try to do things a little differently.  We keep saying we don’t want to be like California, and yet… we keep doing many of the same things!  We need to keep our eyes open and be willing to take a different path, but also realize there are things that can be instructive for us here because of how they have played out there – don’t ignore or underestimate them!

California Cities Could Face a Zoning Reckoning

As the state toughens rules related to its housing allocation process, cities statewide may finally be forced to overhaul their zoning codes to ensure an adequate supply of housing at all affordability levels.

In a series of somewhat alarmist headlines, writers commenting on California’s Regional Housing Needs Assessment proclaim, “A wall of skyscrapers along Ocean Beach? It could happen if S.F. doesn’t stop bungling its planning process” and “Skyscrapers in Davis? Probably Not, but HCD Denial Is Not Nothing.”

To be clear, no one is seriously proposing building high-rises in either of these places. So where do these headlines come from?

The Regional Housing Needs Assessment

Calculated by the state of California every eight years since its inception in 1969, the Regional Housing Needs Assessment (RHNA) dictates how much new housing each city in the state must build at various affordability levels in order to meet its projected housing need. The assessment is agreed upon by the Department of Housing and Community Development (HCD), which uses demographic data and their own formula to calculate housing needs, and each region’s Council of Governments (COG). The COGs are then tasked with distributing the housing needs among their participant jurisdictions. The process is based on the belief that local governments can adopt policies and regulations that promote development and make it easy for private builders to create an adequate supply of housing and is at the heart of California housing policy.

As part of their seven-part general plan, cities are required to provide a housing element that will accommodate the housing units allocated to them. To accomplish this, cities can rezone underused parcels to increase allowable density and implement policies that encourage development. Housing elements are also required to affirmatively further fair housing, a requirement unique to California. Cities are tasked with “taking meaningful actions to” fight discrimination in housing and reduce racial and economic segregation. In past years, many city proposals included unrealistic projections and labeled undevelopable sites as potential housing sites, which the state approved without question. A 2017 Los Angeles Times article asserts that during the last cycle, California only built less than half of the number of homes called for by the RHNA.

How is this cycle different?

During this sixth update cycle, the state scrutinized the plans more closely, rejecting housing elements from several cities as inadequate and sending them back to the drawing board. This is largely due to stricter requirements and larger allocations. For example, the state can now ask cities to reduce site capacity rather than operate under the unrealistic assumption that every developable parcel will be developed.

Southern California, where deadlines to submit housing elements are earlier than in the northern part of the state, saw just seven of 196 housing plans approved right away, with the rest sent back to the cities. Rejections include Los Angeles, Beverly Hills, Santa Monica, and Redondo Beach, which are all required to make revisions before their plans could be approved. According to a tweet from Abundant Housing LA, HCD rejected Beverly Hills’ plan citing “a lack of substantial evidence on the discontinuation of existing uses, an unrealistically high ADU production forecast, & a lack of commitment to constraint removal.” In their response letter to the city, the agency stated that Beverly Hills did not appropriately address their strategy for affirmatively furthering fair housing, did not provide an analysis of environmental and infrastructure constraints that could hinder development on identified sites, and did not identify a timeline for implementing programs to assist low-income households, among other issues. Similarly, HCD raised concerns about Santa Monica’s projections and their weak commitment to fostering inclusivity in single-family zoned neighborhoods.

Observers believe that San Francisco, which was allocated 82,000 units of housing by the RHNA, will likely have to make revisions. In its draft housing element, city officials claim that the city could build the required housing units called for in the next eight years without changing existing zoning, an unrealistic expectation given the slow rate of recent construction and the opposition constantly faced by projects planned for higher-income neighborhoods. An opinion piece by David Broockman and Robert Fruchtman points out that the city would have to build at four times its recent rate to stay on track with housing goals, a speed that can’t happen without major changes in planning and zoning regulations.

In the case of Davis, the state accused the city of not doing enough to promote “fair housing” in its proposed housing element. In their explanation of the rejection of Davis’ housing element, HCD wrote, “The revised element identifies a shortfall of adequate sites to accommodate the regional housing need for lower-income households. It also identifies candidate sites that will be rezoned within the first three years of the planning period.” HCD pointed out other concerns, such as the city’s admission that not enough vacant land is zoned appropriately to meet the city’s housing needs and that a city ordinance that calls for voter approval of zoning changes hinders development of new housing.

Zoning limbo

In addition to losing access to billions in state and federal affordable housing funds, cities have no power to use zoning regulations to reject projects that are 20 percent low-income or 100 percent moderate-income while their housing element is out of compliance. While developers would still have to comply with other regulations such as parking requirements, they would theoretically have more flexibility in height and density.

Without HCD approval, cities are essentially in a state of limbo—they can’t use their existing zoning codes or general plans to reject projects. Theoretically, a developer could build an outsized skyscraper anywhere in Davis, Redondo Beach, Beverly Hills or any other city whose housing element has been rejected by HCD. In other words, without an approved housing element, cities cannot regulate density. Further, if applications are filed before the housing element is brought into compliance, cities will be bound by the regulations in place at the time of the application’s filing.

Ultimately, this potential to develop outsized buildings probably won’t become a reality due to the many legal and financial challenges such a proposal would face. Most developers, often dependent on the goodwill of politicians to have their projects approved, have little interest in testing the waters and potentially poisoning the well for future projects. According to an article by David Greenwald, “You would probably need an out-of-town developer with deep pockets (for a lot of reasons) to wade into the risk involved in even proposing such a beast.” But the rejection of housing elements can lead to delays or kill badly needed affordable housing projects. The widespread resistance from cities to state housing mandates points to a larger problem: now that the state is taking its housing crisis more seriously, the effort to develop realistic housing elements that truly address housing needs faces challenges on many fronts as cities cling to the perceived sanctity of local control and NIMBY groups push back on efforts to build more affordable and sustainable neighborhoods.

https://www.planetizen.com/blogs/116842-california-cities-could-face-zoning-reckoning

THE LONG AND SHORT OF IT

April 14, 2022

With the end of the APA Utah Spring Conference in Kanab just a couple of weeks ago, this recent news story about the housing problems in Kanab, exacerbated by short-term rentals (STRs), again points out the never-ending debate over STRs and what to do about them.

The question of whether and how to allow local governments to regulate STRs has been kicking around on Capitol Hill for several years now.  The STR industry attempted in 2017 to get the legislature to pass a bill that would prohibit local regulation of STRs, but that effort predictably ran into a buzzsaw of local government officials who were getting earfuls from their residents about STRs in their neighborhoods.  In the end, the bill that was passed only prohibited enforcement of STR regulations with the sole evidence being advertising on websites.

Meanwhile, the concerns about STRs mushroomed all over the state: Springdale, St. George area, even on the Wasatch Front.  The issue is one that is prominent not just here, but around the nation as well, and in the STR industry.

Debate over how to regulate STRs continues and was fanned again with the passage of the ADU bill last year.  Many jurisdictions were concerned that ADUs would be turned into STRs, as evidenced in this story about a meeting between local officials and legislators.  This led to the filing of two bills during this year’s legislative session, HB372 – Short-Term Property Rental Amendments and HB407 – Short-Term Rental Enforcement Amendments.  Neither bill passed, however.  The big housing bill, HB462, originally had a provision that would have done away with this restriction, but it was ultimately removed from the bill.

The issue continues to grow.  Hurricane city just took action, a Cedar City ordinance change to allow ADUs led citizens to express fears they would be rented out, and is debated even in Logan.

This ain’t over, folks.  Watch for more on this.

CAN YOU DIG IT?

April 13, 2022

Remember the gravel pit wars that were taking place with regularity a few years ago?  As construction around the state boomed due to general growth and big projects like the airport renovation, new state prison, highway expansions, and others, the battles were cropping up all over, like Tooele County, Wayne County, Willard, and Draper.  “Discussions” (more accurately, arguments) were frequent and intense in land use task force meetings, with little agreement being reached.  Ultimately, in the 2019 legislative session, a bill was passed which created a new section in LUDMA titled Section 9 – Vested Critical Infrastructure Materials Operations, which in essence created a right for existing sand a gravel operations (needed for construction of new buildings and infrastructure) to continue (kind of like a non-conforming right) and set some parameters for future expansion.  It was sort of a truce in the battle, with the understanding that “better” solutions would be sought in subsequent years.  Well, here we are in 2022 and nothing more has happened.

And now this section is being invoked to allow for expansion of an existing (this is in dispute – county officials contend there was never any mining activity on the site to begin with) limestone quarry in Parley’s Canyon.  The whole issue was unveiled when the property owner published a public notice required for a state mining permit.  Up to that point, no one in local government (i.e. Salt Lake County) had heard anything about a proposal to quarry at this location.  That kicked off a reaction by citizens and county officials to try to put regulations in place to prohibit or restrict such an operation.

This even became the subject of a bill during this year’s legislative session that would have changed state rules for such an operation so that it would have to follow more strict and broader state permitting rules.  The bill did not pass, however.

The owners are now invoking this LUDMA Section 9 to claim a right to mine and to expand.

You never know… what our legislative bills may ultimately lead to!

YOU KEEP USING THAT WORD…

April 12, 2022

In the legislative session just completed, one of the land use tools passed was inclusionary zoning (IZ). IZ had been talked about for some time as a way to address housing affordability, and is used in some high-cost communities like Park City and Summit County in an attempt to provide for housing that can be accessible to the needed local workforce that cannot afford the high resort-community prices (like teachers, police officers, restaurant workers, etc.).  The section included in HB303 allows for IZ but only through providing an incentive for the builder (usually this means increased density) and with the agreement of the builder.  I’ve argued that, while it’s nice to have this provision now in state code, the requirements really make it something that local governments could have done anyway under a development agreement, so I’m not sure what this provision really gives in the way of a new tool.

At the legislative update session held by the League and APA Utah on March 31, a comment was made when the IZ provision was brought up that this would likely see more action in upcoming legislative discussions.

But IZ is likely not all that some may hope it is as a way to address the housing affordability issue.  A recent opinion piece in Greater Greater Washington by Tom Coale, a land use attorney in Maryland, points out some of the drawbacks and limitations of IZ as a way to address housing affordability.  He says:

Inclusionary zoning, however, was not created for the purposes of meeting affordable housing needs. Instead, IZ helps ensure that new development, in which units are commonly the most expensive on the market and draw high-income purchasers, is not made up of exclusively wealthy families. But when efforts to integrate such communities take the place of meaningful efforts to create affordable housing, we all lose.

Inclusionary zoning is a tool for socioeconomic integration. Due to the fact that new development often comes with the highest price tags, policy-makers who support inclusionary zoning policies do so with an eye toward ensuring there are not pockets of extreme wealth situated amongst relative poverty.

(IZ is) inefficient. Even the most ambitious inclusionary zoning requirement of 20% will only provide two subsidized units for every eight market-rate units. As the cost of market-rate units increase, the disparity between those who can afford new housing and those who cannot … (is) resulting in a lopsided barbell income distribution whereby 80% of the housing is for the “very rich” and 20% of the housing goes to the “relatively poor”.

Second, inclusionary zoning policies offload a societal obligation of providing affordable housing from the body politic to private interests. In order to tackle the gaping deficit of units for low-income families, state and federal governments will need to dedicate resources to build housing and subsidize rents. Inclusionary zoning allows the fiction that our affordable housing needs can be met by developer mandates. This crisis will not be solved by a for-profit industry with a relative intolerance for profit-losing requirements. Governments can and should do more.

Finally, and most importantly, inclusionary zoning requirements raise housing prices on the whole. All regulatory burdens, whether they be forest conservation or design requirements, operate like a tax that is passed through to the home-buyer. The costs of inclusionary zoning compliance will be borne by the market rate purchaser, not the developer.

(I)nclusionary zoning should be viewed for what it is – a mechanism for integrating new development, not a tool to generate enough affordable housing to meet our communities’ needs.

Since it looks like we are not done with the concept of IZ in Utah land use codes, this piece is worth a look.

HOME, HOME ON THE (FED) RANGE

April 11, 2022

Well, it looks like our U.S. senators are getting in on the housing affordability crisis.  Actually, this is a pretty pro-active approach – make federal land available for purchase by state and local governments to be used exclusively for housing.  There are some parameters on it to make it for “affordable” housing, however that winds up being defined.  A couple of clips from the news story:

The Utah Republican introduced legislation Friday to allow a state or local government to buy parcels of federal land at a reduced price to address housing supply and affordability in their areas. The proposal would require the property be used for housing, subject to a density requirement, and protects against development of expensive second homes.

The bill requires that at least 85% of the acquired land be used for residential housing and related community needs at a density not less than one home per quarter-acre. Community needs would include schools, churches, grocery stores, hospitals and health clinics. Also, no more than 15% of property could be used for commercial purposes.

Say what you will, but it’s at least an effort to try and address the problem.  Better than not doing anything!

WELL, THE WAY I SEE IT…

April 8, 2022

Here’s an interesting piece on NPR a few days ago about the housing shortage and its causes.  A lot is attributed to cost of materials, and loss of workforce during the great recession and no one coming back in to refill those jobs.  It also has an interesting perspective on local land use regulation’s role, and how it’s skewing things:

Overly restrictive zoning is a big problem nationally, says Robert Dietz, the chief economist with the National Association of Home Builders. “In certain neighborhoods you simply cannot build townhouses.”

“You have to build single family units on lots that are bigger than the market wants,” Dietz says. “This is not a free market choice. It’s a government-imposed rule.”

He says that in many parts of the country, the classic NIMBY (not in my back yard) opposition stops higher-density units from being built. Existing homeowners who don’t want more traffic and more homes in their neighborhood keep what he says are outdated, exclusionary zoning rules in place.

So to make a profit, builders like Claus are left doing renovations or tear downs — buying an older home, knocking it down, and building a bigger, more expensive new one.

“We are seeing a lot of knockdowns,” Claus says. “But it doesn’t add to the housing stock. You’re replacing something, you’re not adding to it, so the net effect isn’t the best.”

Changes in zoning can make a big difference. Some states and towns have been changing the rules to allow in-law rental apartments to be built onto existing houses. These are called accessory dwelling units, or ADUs.

“Twenty percent of remodelers indicate in the last year they’ve undertaken an ADU project, and the typical one can cost anywhere between $100,000 and $200,000,” Dietz says.

That’s good for the supply of rental housing, which is also very tight. But Dietz says we also need a lot more homes for people to buy.

“That could be a townhouse,” he says. “It could be a single family detached home on a small lot that’s roughly 1,800 to 2,100 square feet, that’s appropriate for effectively a newly married couple that’s moving out of their first apartment and is getting into their their first rung of homeownership.”

Right now, Claus says that because of the restrictive zoning rules, he doesn’t have any new home projects lined up that will put a house like that in a place there wasn’t a home already.

Worth the read to get another perspective.

WAIT… WHAT?  REALLY? OKAY THEN, I’LL TAKE IT!

April 6, 2022

I saw something in the Trib the other day that kind of made me do a double take – am I really seeing that?

It’s a call by a very conservative legislator for more – planning and regulation!  What? I must have been mistaken!  But no, it’s right there, in print.

The legislator is Rep. Phil Lyman, who hasn’t been exactly friendly with “lefty” causes like planning and regulation in general.  But just a few days ago, this piece from him appeared in the Trib pointing out the risks to urban development in wildland areas, most notably to the wildfire potential in Salt Lake County’s foothills and mountains.  Now why he is calling this out just in Salt Lake County, while he is from about as far away and as un-urban an area as can be (Blanding), is an interesting sidenote.  But nonetheless, it’s hard to argue with what he’s encouraging.  Here’s the entire piece:

According to recent news reports, the Outdoor Retailer (OR) show is returning to Utah. This, of course, is good news for the outdoor industry and the state of Utah.

According to Marisa Nicholson, Outdoor Retailer Senior Vice President & Show Director, OR has “a strong relationship with Salt Lake City and a committed partner in Mayor Erin Mendenhall, whose values align with ours.”

Both Salt Lake City Mayor Mendenhall and Salt Lake County Mayor Wilson enthusiastically welcomed OR back to Salt Lake, touting the city and county’s environmental stewardship.

Wilson proudly proclaimed, “Salt Lake County has led in environmental protection and conservation.” While Mendenhall announced, “We share the same enthusiasm, appreciation, and reverence for these great natural assets … we’re uniting our momentum to make change.”

These leaders’ enthusiastic commitment to environmental stewardship is commendable.

Might I suggest that Ms. Nicholson, along with Mayors Wilson and Mendenhall, start with Salt Lake County’s east bench and the Salt Lake City controlled Wasatch Canyons as they channel their unity and momentum to “make change”?

According to The Utah State Hazard Mitigation Plan, 2019, Section 11.2 Table 4, page 259, Salt Lake County leads Utah with 60% percent of its lands at high risk of wildfires.

A recent report places Utah at the top of several western states for homes at risk of wildfires. As Salt Lake County leads Utah in high-risk wildfire lands, does this place Salt Lake County as one of the highest in the nation for wildfire danger?

Unfortunately, not only are thousands of homes, multiple ski resorts and untold outdoor recreation guests in grave danger of raging wildfires, but so are Salt Lake City’s precious watersheds. These vital lands, nestled in the heart of some of the nation’s most extreme wildfire danger, provide culinary water to hundreds of thousands of Salt Lake County and City residents.

A recent report published by the American Geophysical Union says, “Wildfires have well-documented effects on the quality of surface waters, and although wildfires can destroy forest ecosystems within days, changes in DOM (Dissolved organic matter) quantity and composition can persist in burned landscapes for decades.”

Salt Lake County has its land-use authority, a General Plan and its Resource Management Plan to address forest health and implement Best Management Practices. In addition, Salt Lake City has the enormous power of “Extra-Territorial Jurisdiction”, which was granted them by the Utah Legislature over 100 years ago, to protect its watersheds.

Between Salt Lake County, Salt Lake City, their close working relationship with the U.S. Forest Service, and now the exciting collaborative efforts of OR, we look forward to these organizations leading by example to ensure public safety, wildfire prevention and mitigation and healthy watersheds for all.

https://www.sltrib.com/opinion/commentary/2022/04/01/phil-lyman-salt-lake-city/

Wow, who knew?  There’s hope yet…

DOING THE SAME THING OVER, AND EXPECTING A DIFFERENT RESULT

April 5, 2022

With spring coming on and having just completed a rather taxing legislative session, it’s getting harder for me to sit down and write up something to post to this blog.  But today we got a skiff of snow and its cold and windy out, so… I have no excuse!

I have seen a couple of interesting pieces recently that have triggered my old brain, which will give me something to pass on.  I’ll do that over the next few days.

First, this piece from a resident of Erda in Tooele County, which has seen a lot of growth-related churn the last couple of years, not the least of which has been an ugly incorporation-annexation faceoff to control new development.  What I find so jarring about this piece is that it sounds just like what I heard early in my career in some Davis County communities (and others on the edge of expanding development) – “we like our rural lifestyle, we don’t want it to change, just keep those dirty rotten developers who only are concerned about money out of our pristine little community.”  Here’s a clip from the piece:

Must quality of life be sacrificed when there’s land to be developed? Are rural Utahns sacrificial lambs for residential high-density development and a concrete jungle with noise, countless trucks and trains coming and going? Are air quality, natural resources, critical bird habitat and wetlands nothing more than nuisances for developers to conquer?

Their bottom line is monetary gain. Rural culture is expendable. As I sit here on my deck, my heart aches for what will be lost, unless everyday Utahns rise to stop it.

So many times in my career have I heard this lament, from community after community next in line for expansion of the urbanized metro area.  And so often, I and my colleagues have tried to say to the officials in these communities, “growth is going to come, you can’t stop it or ignore it, so plan for it!  Put measures in place that will give you a community that will be bigger and denser than what you have now, but that you can live with, that you will like.”  And almost invariably, they don’t.  They make the same mistakes that other communities before them have, by not changing plans and codes to deal with the growth, and then they are just overwhelmed.  It’s kind of disheartening, after this many years of watching this scenario play out over and over again, to see it’s still happening… sigh!

YOU WERE SAYING?

April 1, 2022

Despite the many recent explanations for the rising cost of housing, which point to a variety of factors such as construction material costs, construction workforce shortages (driving up wage costs), cost of land, low interest rates (which keeps demand high, though that is changing now), some sources continue to pin the primary blame on local land use regulation (it’s part of the equation, but according to many sources, not necessarily the biggest one).  Case in point – this recent piece from Politico.  Writer Katy O’Donnell says:

The main drivers of rising home prices are “land-use policies and permitting costs and zoning restrictions — that’s very much determined at the local level, and to influence that from the federal level is very difficult,” said Moody’s Analytics chief economist Mark Zandi.  “The housing crisis we’re in has developed over the last decade, and it’s going to take a decade or two of consistent policy to get us out of this.”

But then O’Donnell goes on to write:

Construction costs are up because of higher lumber and energy prices and the labor shortage. What’s more, the construction time for a typical single-family home, usually about 6.5 months, is taking between four and 10 weeks longer now, according to Robert Dietz, chief economist at the National Association of Home Builders.

“That’s likely to continue — not just the higher price of these materials but delays and availability issues,” Dietz said. “What it means is that home price growth is likely to continue despite the fact that mortgage rates are going to go up.”

Dietz said policies to reduce the cost of lumber — which has more than tripled since February 2020 — would make a difference, since 90 percent of new single-family homes are wood-framed. The rise in lumber prices over the last year alone has caused the average price of a new single-family home to increase by $18,600, according to NAHB. But the federal government isn’t helping: The U.S. in November doubled the duties on Canadian softwood lumber, the latest development in a lengthy trade dispute over the import.

And to the argument that local governments are, if not the primary cause, at least one of the main contributors to the housing affordability crisis by making it difficult to build more housing, take a look at the most recent construction report from the University of Utah.  It says, that for 2021:

Breaking the 40,000 mark for the first time, 2021 permitted residential units reached 40,144, increasing by 24.5% over the previous record set in 2020. Single-family activity increased by 12.6 % to 17,528 units. Condo, townhome, and duplex units combined for 7,895 new units, growing by 12.5% compared with 2020, a new record. Apartment activity not only set a record with 14,143 new permitted units, but surpassed its previous record from 2019 by 51.0%, and increased 60.4% from 2020.

Take a look at this chart.  Does that look like construction of housing in Utah is being hindered?  Of course, this may also reflect the fact that demand for housing is at all time highs as well and maybe not enough housing is being built, but looking at this data, it’s increasingly difficult to argue that local regulation is dampening construction of new dwellings.  Just saying…

FOR LOVE OF MY REGION…

March 30, 2022

A just released book from the Lincoln Institute of Land Policy, titled Megaregions and America’s Future got me thinking back to all the writing and talking I did through much of my career on the importance of taking a regional approach to major growth issues.  This piece published just before I retired was only the latest in a list of several that I wrote over my time in land use planning (newspaper archives are not what they used to be so I’m having a hard time finding any of them online anymore!).

But getting local officials to recognize and work together on issues that are best approached on a regional basis is, as I’ve learned over my long career, something that is akin to herding cats. It just ain’t easy, and hardly ever works.  It’s great to have books like the one just out on this topic, but a piece by Governing magazine editor Alan Ehrenhalt several years ago titled The Rise of the Megaregion pointed out some of these grim realities:

It seems pretty clear that the idea of megaregions has moved from obscurity back to the center of debate in a strikingly short time. But I think it’s pertinent to ask the same question people asked when Gottmann first came up with it back in 1957: Other than as an intellectual exercise, does it really serve much purpose? … Can we really expect that these jurisdictions will simply skip the step of cooperating with each other and turn to the larger question of sharing power …? That seems extremely unlikely, to say the least.

My experience has shown this to be the case.  Given the demographic characteristic of our state, some of the actions attempted by our state legislature really are more like regional approaches to growth issues (see previous posts on Authorities, like MIDA, Port Authority, Point of the Mountain, and now Utah Lake).  They have, at best, a mixed track record.

One area Ehrenhalt does see hope and actual action on the regional level, however, is in transportation.

In fact, though, there is one area of public policy for which a megaregional approach really does make sense. That one area is transportation. In an era of rapidly rising gas prices and expensive jet fuel, there is going to be a genuine need for inter-city train travel. … When you think of megaregions not as coherent economic juggernauts but less grandly as transportation corridors, the concept finally begins to look plausible. … Touting megaregions as the key to America’s economic future, even if false, may represent a useful step toward establishing transportation policies that our dense concentrations of light bulbs really do need.

In one of those long-ago opinion pieces I wrote, I quoted Alex Marshall, who in his book How Cities Work wrote,

“ If we want to shape a city, we have to shape its transportation system. … If we want a particular type of place, then we have to look at what kind of transportation system produces that kind of place.  If we want to control or shape the type of development in a metropolitan area, we have to grapple with the highways, rails and other systems that move people around within it.”

Indeed in my past writing, I characterized the regional transportation system as the skeleton on which we hang our regional character – will it be sprawl, or urban villages?  And, as noted in that recent piece I wrote, I think our local and state officials have made some real progress in this area.

Now, can we turn that imperative to another regional-level growth issue – housing affordability?

THE PEASANTS ARE REVOLTING…

March 28, 2022

The list of ways for local officials to get around the new zoning reform laws in California just keeps growing, showing the ever-inventive nature of those who do not want to be told what to do.

A Bay area Mercury News story profiles some of the latest moves:

But the NIMBYS are getting creative.

In Woodside, home to some of the Bay Area’s richest new and old-money families, city officials attempted to exempt the entire town from SB9 because it is a habitat for the vulnerable mountain lion of the Santa Cruz range. In Portola Valley, residents have been urging their council to limit SB9 based on fire danger in the hillside community.

And now in Palo Alto, the council could act to list more homes or entire city districts on the historic register to “protect more resources already deemed eligible for state or national registers,” according to a report from the city council.

Under SB9, city buildings and neighborhoods could be protected by being listed on a local historic register or the state and national registers, and Palo Alto city staff are suggesting the city hire consultants to help update and maintain its historic resources inventory. That could include buildings the city wants to exempt from SB9, which staff says “may consist of a single building or structure or a district.”

Hopefully the more collaborative nature of the legislative efforts undertaken here during the just-completed session will not see such shenanigans – but not everyone was happy with the bills that were passed, so we shall see.  A recent letter to the editor in the Trib hints that strategies similar to those described above may not be far off:

The need is there, but allowing fourplexes on existing lots in the (Sugar House) area is frightening. These homes were built in the early 1900s. These historical lots are small with most ranging in size from a 37.5′ frontage to a 50′ frontage. … Parking on these old, narrow streets is also an issue. … A fourplex will generate additional street parking no matter what the regulations are.

IF LIFE WERE FAIR…

March 23, 2022

As I was putting together the slides for the upcoming Legislative Update luncheons we do every year following the close of the legislative session, I was reminded by my good friend and colleague Meg Ryan at the League of the requirement in the big housing bill passed this year for the Utah Department of Workforce Services to “develop and submit to the Commission on Housing Affordability a methodology for determining whether a municipality or county is taking sufficient measures to protect and promote moderate income housing in accordance with” the required Moderate Income Housing element in its general plan.  The Department is to submit the proposed methodology by December 1, 2022, and the Commission is to approve the methodology to be used by December 31.

Meg went so far in her proposed language for the slide for the legislative update luncheon to say this would encompass a regional share strategy for MIH.  She relented and noted that the language in the housing bill doesn’t exactly say that (right, it doesn’t, see the quote above), but… .  Meg’s insinuation is not out of line.  CHA co-chair Rep. Steve Waldrip (and sponsor of the housing bill, HB462) has in public meetings opined on the possibility of looking at putting in place some kind of regional “fair share” requirement for communities around the state.  Such a move would not be without precedent.

The best know state-level requirement for housing regional fair share is probably what is know as The Mount Laurel Doctrine in New Jersey.  In 1975 and again in 1983, the New Jersey Supreme Court declared, in a ruling on a suit on this issue, that municipal land use regulations that prevent affordable housing opportunities for low income persons are unconstitutional and ordered all New Jersey municipalities to plan, zone for, and take actions to provide realistic opportunities for their “fair share” of the region’s need for affordable housing.  This was a judicially-imposed requirement as the result of a legal challenge to local land use regulations, but it left a number of questions that needed answering, such as what is a region, what is the level of affordability, what is the expected growth and what constitutes a “fair share?”  In response, in 1985, the New Jersey State Legislature enacted the Fair Housing Act which created an entity to assess the statewide need for affordable housing, allocate that need on a municipal fair share basis, and review and approve municipal plans for implementing their fair share of the obligation.  You can read more of the details of the history and subsequent actions in New Jersey at the Fair Share Housing Center website.  Wikipedia has a good summary of New Jersey’s actions as well.

Since then, a number of other states have enacted or considered enacting similar measures.  And now with the recent explosion in the crisis of housing affordability in general around the country, more states are looking to it as well.  One of the most recent has been Connecticut, which has been quite active in the “zoning reform” effort going on in many states.  The Connecticut measures have a broad coalition of support, including the APA Connecticut Chapter and the Connecticut Conference of Municipalities (equivalent to our League of Cities and Towns).

In addition to the standard zoning reform measure of eliminating exclusive single-family residential zoning, the Connecticut legislature is now considering a “Fair Share Housing” bill.  Under the measure, a town’s share would be based on its wealth, median income compared to other towns in the region, percentage of housing stock that’s multifamily housing, and the poverty rate. Towns would have to come up with plans by Jan. 1, 2025 and develop a new plan every 10 years after that. No locality would be expected to increase its housing stock by more than 20%, the bill states.

As may be expected, some local leaders are opposed to the bill, and for some good reasons.

“… opponents have cited a lack of local control as one of the reasons they don’t support the bill.  Michael Criss, first selectman for Harwinton, said lack of existing water and sewage infrastructure had made it difficult to build more housing in his town. He added that rather than see a new bill passed, he wanted to observe the effects of 8-30j, which passed in 2017.  The law requires towns to approve affordable housing plans every five years. The first plan is due in July.  “There’s existing efforts and proven successful strategies out there,” Criss said. “We’re all trying to do our part to make it affordable to live within the state.”

This good story in the Hartford Courant outlines the back-and-forth now on-going in the Connecticut legislature on the proposed bill.

It will be interesting to see where this goes in Connecticut and in other places, maybe even right here in our own good old, rapidly growing and increasingly unaffordable state!

CAN WE AT LEAST BE … CONSISTENT?

March 21, 2022

I’ve taken to calling the just completed legislative session The Year of the General Plan.  The land use legislation that was passed this year was most impactful, I believe, on the changes and additions made to LUDMA Part 4 – General Plans.  As noted in previous posts, the emphasis that has been placed on the general plans of communities to deal with a variety of important issues – housing affordability, water use, and transit/land use – has been quite significant.  It’s actually a lot of faith to place in a document that by it’s very legal status is defined to be as advisory only.

Only it isn’t just advisory only anymore, not with the additions this year.  The moderate income housing element has a provision that the State Department of Workforce Services will monitor the progress of communities in implementing the policies and strategies adopted by communities.  While this is not a requirement that local regulations must be consistent with the adopted plan, it comes close.  The Station Area Plan element, however, has no such ambiguity – it requires that the SAP element be submitted to the relevant Metropolitan Planning Organization for review and certification, and that the element include a 5-year implantation timeline, including for when needed changes to land use regulations will be made.  That’s pretty much a requirement for consistency of local land use regulations and actions with the general plan.

What concerns me is not that we are moving away from the long-held status of Utah being a state in which general plans are non-compulsory (advisory only), but that we are doing so without any overt discussion about this change, how it should best be accomplished, and what it means for the legal landscape for land use practice and law in the state.  There is also the concern that we’re going about this on an ad-hoc basis, with a mix of compulsory and non-compulsory provisions in the code (the “advisory only” language is still in).  I was involved years ago with the looney way the state annexation code was changed, with a mix of strategies and philosophies adopted on a piecemeal basis, and the result was an unholy mess (see the previous posts on annexation).

A quick perusal of the plan consistency literature shows that there are a number of issues that arise in this area, depending on the level of consistency required – “rational basis” consistency of land use regulations; “basic harmony” consistency requirement; “reasonable consistency” requirement; mandatory compatibility with goals and objectives; substantial consistency; all dependent on level of detail in plan policies – and these can be either legislatively or judicially defined, depending on how the state statute reads and challenges brought to it (see Oklahoma Law Review, “Planning Ahead: Consistency with a Comprehensive Land Use Plan,” by Nathan Blackburn; Florida State University Law Review, “Comprehensive Land Use Plans and the Consistency Requirement,” by Kenneth Hart).  There is even a model statute by planning law guru Stuart Meck that could be (should be?) considered (Washing University Journal of Law & Policy, “The Legislative Requirement That Zoning and Land Use Controls Be Consistent with an Independently Adopted Local Comprehensive Plan: A Model Statute”).

We shouldn’t be backing into this kind of change in our land use practice in our fair state – we need to have an upfront discussion about what to do and how to do it.  And it certainly shouldn’t be piecemeal, lest we risk creating another annexation code fiasco.

WE’RE JUST GETTING STARTED, FOLKS…

March 18, 2022

A story in today’s DesNews confirms that the housing affordability crisis is not slowing down.  As we’ve noted in past posts and other discussions, there are a variety of reasons for the crisis, not just local land use regulation processes (as some would have us believe).  But there’s no question that this trend will likely mean continued efforts at the legislative level (and by some local officials as well, it must be noted!) to attempt solutions.  That this conclusion is in the “duh!” category is reinforced by the fact that both our Speaker and Senate President work in the development industry, as well as other members of legislative leadership.

To double down on this conclusion, consider the fact that there is a considerable amount of money that was appropriated in this year’s legislative session for growth-related “conversations.”  Here’s a quick rundown:

$1M one-time for GOPB planning for growth. This appropriation is intended for a “Statewide Growth Conversation” to help residents statewide understand the implications of the various ways that growth might unfold, and the importance of planning today for tomorrow. GOPB, in conjunction with various community partners, will oversee the effort, and will engage many stakeholders.

$250,000 to go to a nonprofit entity that provides education and training on land use law, to provide regional land use training and workshops to local officials and policymakers on housing issues.  Several of us were involved in discussions about this idea with the Speaker, which he strongly supported.

$250,000 to go to a nonprofit entity that engages in efforts to increase housing affordability through local zoning and housing regulation reform.

Now, as a cherry on top of all this, take a look at the very end of this video of the legislative wrap-up discussion with legislative leadership hosted by the Gardner Policy Institute.  The guests were asked what they thought would be top issues for the legislature in the coming year, and House Speaker Brad Wilson said, “the overall strategy of the state to manage growth.”

And you thought this was about over! 😊

END NOTES

March 16, 2022

A follow-up note to yesterday’s post – much of what the legislature passed this session in the way of land use legislation is still state preemption – it was just crafted with the cooperation of local officials (some of them, at least) which hopefully will result in better realization.  Not all of the bills passed were created this way, however – witness the food truck bill!

Robert Gehrke of the Trib takes on the issue of short-term rentals in today’s column.  As he notes, two bills that were introduced on this topic during the session did not pass.  I heard a lot of noise from local officials about this issue leading up to the legislative session, so I don’t think we’ve seen the last of this one.

And finally, to the issue of locals finding ways to circumvent top-down mandates, there’s an interesting piece in the San Francisco Chronicle (it’s paywalled) about how that city is attempting to do that.  Here’s a description of the story from the Planetizen website:

San Francisco officials are proposing a novel workaround for SB9, a new California law that promotes increased density in neighborhoods previously zoned only for single-family homes, report Dustin Gardiner and J.D. Morris for the San Francisco Chronicle.

On its surface, “Supervisor Rafael Mandelman’s plan would double down on the state’s goal to add more homes in existing neighborhoods by allowing up to four units on lots currently zoned for residential homes — and up to six units on corner lots.” However, “the effort recently took on a new dimension after he accepted a recommendation from the Planning Commission that would upzone all single-family neighborhoods to allow duplexes, basically exempting San Francisco from SB9 because the law applies only to areas zoned for single-family homes.” Additionally, the proposal also keeps the city’s onerous permitting process.

The fun and games continue!

TO PREEMPT, OR NOT TO PREEMPT…

March 15, 2022

A couple of news stories that have popped up recently have given me the opening to write about something that’s been simmering on my mind for a while, partly because of actions during our just completed legislative session – state preemption of local authority.

The most recent and most germane (at least in the negative sense) was a piece in yesterday’s Trib by Robert Gehrke which featured a last minute addition to the housing bill, HB462 (see lines 3578-3582), which essentially mandates that Summit County is to create a Housing Transit Reinvestment Zone at Kimball Junction near Park City.  The details are interesting and, from a local government perspective, alarming in that the legislature would intervene to such a level of detail in local processes.  This story is not a good example of when state pre-emption may be warranted, but for my purposes, it does bring to front of mind again the question of, when is it appropriate for state-level officials to intervene in and override local policy processes?

If you’ve been reading my posts during the legislative session, you will know that I have been voicing support for the approach that has seemingly been taken by our legislature (and one legislator in particular, who has become the point person on all things housing and land use related) to what is generally being characterized around the nation as zoning reform intended to address the housing affordability crisis.  That approach is for state officials to work with local representatives to craft mutually acceptable legislation to attempt to bring about some change to the way land use is handled at the local level.  Many states around the country are going with a heavy-handed top-down approach that often, as has been pointed out in some of the previous posts, leads locals to look for ways to circumvent.  I still think the collaborative approach is generally the best way to go.

But sometimes, just sometimes, maybe the locals just won’t play ball (or maybe more accurately, some of the locals). How, then are broader policies to be moved forward if they take everyone to make them happen?

I used to think about this years ago in the context of our regional transportation plans.  The process that our Metropolitan Planning Organizations (WFRC, Mountainlands) used to take was to basically see what all the communities in the region were planning for, and then craft a regional transportation plan that supported that overall development pattern.  Over the years, transit became more and more significant in those plans, but to make it work required that all the communities adhere to the basic pattern.  To justify transit, higher densities are needed adjacent to and near planned future transit lines and stations.  What if a community in the middle of the system decided, eh, no, we’re not going to do that?  Then what?

This issue is explored in an interesting paper published in the Ohio State Law Journal not long ago titled Constitutional Law for NIMBYs: A Review of ‘Principles of Home Rule for the 21st Century, by Yale Law School Professor David Schleicher.  The paper is broad and covers a lot of topics related to municipal home rule and state pre-emption, one of which is local land use.  He talks about issues that are regional in scope and nature such as housing, economic development and transportation, and how the actions of individual communities can thwart or stymie such policies.

Some courts-particularly in policy areas such as housing and the environment-have reminded local governments of their affirmative obligation to consider the impact of local policy on others outside the jurisdiction who might be significantly affected by the government’s exercise of its delegated police power authority.

No level or type of government is perfect and there can be legitimate governance concerns at the local level. Local governments can be parochial or insular and some have undoubtedly used their authority for invidious exclusion.

… states may have a substantial interest in ensuring that home rule governments share in the social, economic, environmental, or other responsibilities of a metropolitan area or region in which they are located…

What all this means to me is that there may be times in which regional or state-level pre-exemption of local policies is warranted to achieve broader policy goals, when the local level policies seemingly ignore those broader policies.  I’ve been in the land use game long enough to have seen communities that will not go along with or see the benefit of some regional or state-level goals. So, in effect, these few dictate to everyone else what will happen on the broader scene.  Here’s a good example of how that happens.  I’ve chosen to take from a story about Spokane, Washington (so I don’t call out some of our own local communities and make them mad and get me in trouble!)

Washington state passed a law to crack down on sprawl in the 1990s, only allowing closely built developments in and around the cities. It was supposed to drive dense development inside cities like Spokane. Instead, Spokane stagnated.

Spokane could rezone, but why would they? Neighbors — the kind who already had homes, the kinds who attend neighborhood council meetings, the kind who vote — wouldn’t have it. They worried densely packed housing brings traffic, noise and crime. They offered vague complaints about “neighborhood character” and less vague concerns that their neighborhood would be ruined by those people, you know the kind I mean.  Renters.

Going back to the Summit County story, even as egregious an example of state-level meddling in local affairs as that is, Gehrke says:

At this point you might be thinking: Isn’t this the same NIMBYism we see every time a new housing project of any size gets floated?

And perhaps there is some of that.  At an early hearing on the project, one Park City resident complained that “I don’t think we need Murray in the mountains.”…

Heading into last year’s municipal elections I moderated a handful of city council and mayoral debates and when candidates were asked about housing density they all gave basically the same answer: We live here because we like our way of life so let other towns deal with growth.

Something’s got to give and there is a role for the Legislature to play in Utah’s housing crisis.  Dangling incentives for communities to develop HTRZs around transportation hubs…makes sense.

As I noted earlier, there are plenty of examples of where top-down mandates often lead unwilling communities to find ways to subvert those new mandates.  So, how can this be made to work?  No question, using a collaborative approach is a good way.  If everyone works together to craft the new policies, the more likely they will be to succeed.  But that’s been the approach of our MPOs for years as they put together the regional transportation plans.  Local officials make up the boards of our MPOs!  And still, not everyone chooses to go along.

Another recent paper by John Infranca of Suffolk University Law School, published in the Boston College Law Review titled The New State Zoning:  Land Use Preemption Amid a Housing Crisis, maybe offers some hope:

(R)ecent interventions are justified by the extent of the current housing crisis; the broader effects of local zoning on housing supply, affordability, and other pressing state-wide concerns; and the exclusionary tendencies of local governments. By targeting and expressly preempting specific local laws that stymie more and denser development, rather than imposing new procedural and planning requirements, these interventions are less likely to be thwarted by local resistance. Simultaneously, by setting clear parameters for permissible local regulation, these measures are more likely to calibrate the balance of state and local power in a way that addresses both state-wide interests and significant countervailing local concerns.

The bottom line for me is there is no perfect way to deal with this.  Locals can deal with these issues effectively on their own – witness what Minneapolis, Seattle, Portland, and several other communities are doing on their own – even Boise!  https://www.idahostatesman.com/news/local/community/boise/article259061133.html  These are good examples of locals tackling the bigger regional issues.  But not everyone will, and sometimes it takes everyone to be in the pool to make it work, and then a higher power needs to intervene – we just have to hope that the higher power works for everyone’s benefit, and not for just a few.

FOR WANT OF A NAIL, THE (FUTURE) WAS LOST

March 10, 2022

An issue that I’ve been harping on for some time is annexations and incorporations.  A number of communities over the past couple of years have been hotbeds for this (Erda, Providence, Hideout, Herriman/Olympia Hills, West Weber, and on and on). As I’ve generously pointed out, our annexation/incorporation codes are a mess and sorely in need of considerable revision, if not just  complete recodification (see my post from Nov. 24 and Dec. 31 for more).

This year’s legislative session saw very little action on annexations/incorporations.  A short provision in HB303, the land use task force bill, added a limitation on who has standing to challenge a proposed annexation in the courts.  That’s a far cry from the last couple of years in the legislature, where a number of bills were mooted to deal with various aspects of the annexation problems.

As our population continues to grow, it is clear that new areas for development will eventually be needed.  For many communities, those areas often lie outside existing city boundaries, in unincorporated county areas.  Such expansion raises many issues that need to be dealt with – expanding utilities and services, status of agricultural and open lands, public sentiment about new growth, and the need to accommodate future citizens.  In many states, community master (general) plans are required to consider annexation policies as strategies for future growth.  In Utah, municipalities are required by state code to have annexation policy plan, recommended by the Planning Commission and adopted by the elected officials, if they desire to annex land in future.  Because of its close relationship to future growth and community character, perhaps this plan ought to be part of the general plan (that’s one issue!).

Annexations and incorporations are often by their very nature highly contentious and controversial, between cities and counties, between cities and other cities, between residents in the county and cities, between property owners/developers and everybody else, and so on.  As often seems to be the case, these fights end up in the legislature when someone doesn’t like the way things are going.  And legislators, by their nature, often respond to one side or the other without taking a careful, comprehensive look at the issues involved.  It’s been this way for many years, and the result has been back and forth amendments to state code.  The code itself is now, as a result, full of contradictions and inconsistencies.

All this became ever more apparent to me in the last few weeks.  I reluctantly agreed recently to allow myself to be appointed to the Davis County Local Boundary Commission, a mechanism provided for in state code to try to resolve formal protests to proposed annexations.  In our case, there was such a protest by Clinton City and several property owners to an annexation petition being considered for adoption by West Point City.  I won’t go into the details of this particular case, but I will point out that we members of the Boundary Commission found the state code full of said inconsistencies and contradictions.  The main one has to do with the ability of owners of “rural real property” to challenge proposed annexations and have their property excluded.  I recall when these provisions relating to rural real property were amended into the state code a few years ago.  Much of it had to do with a popular push going on at the time to preserve agriculture (it also had to do with keeping certain large mining company lands from being annexed as well, but I digress).  A number of things were proposed, including the idea that established agriculture protection areas were excluded from being able to be annexed unless the owners consented.  But along with that, a provision was inserted that allowed all owners of “rural real property” to be able to exclude themselves from annexation.  What this did, in essence, was give a single property owner the ability to stymie an otherwise reasonable proposal to bring a newly developing area into a municipality.   The definition of rural real property was inexact enough that just about any unincorporated property zoned agricultural could qualify, and with no minimum size specified, even such that single small property owners could exclude themselves.  Such a situation was a dramatic change from long-standing annexation practice, which sometimes means that a few unwilling property owners are forced into an annexation to accommodate reasonable proposals to expand municipal boundaries (rarely do all rural property owners want to be annexed into a neighboring municipality – if such a situation were allowed to stand, orderly growth would be a near impossibility).  But such is the situation that was created with that amendment for rural real property.

Given the language in the state code, our boundary commission had little choice but to invalidate the proposed annexation petition because it did not comply with the provisions of state code (there were a couple of other reasons as well, also to do with contradictory language in the code). Given what we were seeing, it was difficult for us to think how anything but annexations of single properties (or small groups of consenting property owners) directly adjacent to current city boundaries, could ever be annexed in the future, and maybe not even those because of other language in the code.  It’s a dire situation.

I understand there has already been concern expressed by important legislators that this situation needs to be addressed (rural real property), and I would agree it does.  But in reality, the entire code needs to be addressed.  I also understand, however, that this would likely be a significant task with many stakeholders, and there probably just isn’t much appetite to do that right now.  Last year, Rep. Steve Waldrip tried to take on some annexation issues, saw the need for recodification, started down that road, and then quickly gave it up when the scale of the task became apparent.

We are spending a lot of energy right now talking about rapid growth in our state, what it is doing to our quality of life, and how to deal with it.  Funding was approved by the legislature this year for a couple of initiatives to talk, in one case with citizens, and in another with local policy makers and developers, about growth issues and what to do.  Annexations/incorporations is one that is critical to future growth of our communities, and should not be ignored.

THE VERY MODEL OF A MODERN … GENERAL (PLAN)?

March 8, 2022

If I could characterize the impact of this year’s legislative session on local land use planning and regulation, I think I would call it the Year of the General Plan.  Some of the most significant changes in how we do land use in the state this year were amendments that were made to LUDMA in Section 4 – General Plan.

Section 4 of the LUDMA chapter says that “in order to accomplish the purposes of this chapter (LUDMA), each municipality/county shall prepare and adopt a comprehensive, long-range general plan for present and future needs of the municipality/county, and growth and development of all or any part of the land within the municipality.” (The counties title says something similar, a little differently).  In other words, if you want to plan for and regulate land use in your community, state code requires that you have a general plan.  Section 4 then goes on to list the various things (called elements) that are to be included in a general plan, some required and some optional.  The only required elements just to a couple of years ago were a land use element and a transportation element.  That was it.  There were a number of optional elements listed, like an environmental element, a public facilities element, a historical preservation element, and so on.  The provisions for what was to be considered in these elements was very minimal.  Over a period of time, however, the code was tweaked to give some more definition to what should be included in the required elements, but still was quite general, allowing for a lot of variation in what each entity decided it needed to address and to what level of detail.

All this was fine because, even though general plans are required by state code, their applicability to the regulatory side was not nearly as strong.  Part 405 of Section 4 says, “…the general plan is an advisory guide for land use decisions…”.  In other words, though each entity is required to have a plan, it is not mandatory that the plan be followed.  Utah is one of a number of states in which community general plans (often called master plans elsewhere) are not held to be compulsory in dictating land use decisions.  A number of other states do make them compulsory, but not here.  Therefore, plans in Utah act as a guide for land use decision making, just not as a firm template.  There are exceptions in which counties can by ordinance make them mandatory for their actions.  Part 406 of Section 4 states that no public facilities can be constructed or located in a community unless it conforms to the general plan.  And Part 405 even says, that “the impact of (the plan) shall be determined by ordinance.”  This implies that a community may be able to make it’s plan mandatory for itself, but it is not required to do so.

A couple of years ago, because of the growing intensity of the housing affordability issue in our state, the requirement for having a moderate income housing (MIH) element was added to Section 4, moved from elsewhere in the state code which required communities to have a moderate income housing plan.  It was felt, I believe, that putting it in LUDMA Section 4 would give the requirement more weight, make it more visible and apparent to local officials, and hopefully result in better compliance than what had been occurring previously.  The requirements for this element were rather more extensive than for the existing elements.  Local officials had less flexibility in the way they had to go about preparing a MIH for their general plan, and requirements for reporting progress on meeting the goals of the MIH were also added to Section 4. And then last year, SB34 revamped and added some more provisions to the MIH element.

Adding the MIH element and reporting requirement to Section 4 now gave the general plan somewhat more of a mandatory character. However, not everyone was complying, in part because, I think, the general plan is not compulsory.  Also, it was found that some of the data source references listed in the element needed to be changed, which required amending the code itself through legislation.  This indicates to me the peril of putting mandatory provisions into a section of code that in and of itself is not required to be followed.

In this year’s legislative session, several important things were added to Section 4 for communities to consider in planning for their futures.  These included a new water planning element, a transit station area planning element, and revamping of the MIH element.  All of these are worthy and important things that we should be taking into account as we plan the futures of our communities.  But I am somewhat worried about the level of detail that is being required in these new planning elements.  It will challenge the ability of many communities, particularly the smaller ones, to be able to address all the things that are required, and will lead to cookie cutter solutions, essentially the same from community to community, to meet the stipulations that are in the code.

Let me give you an example of what I mean.  Before any of the MIH language was added to Part 403 of LUDMA, the entire part was comprised of a total of about 85 lines of language.  The MIH element requirements included the last couple of years added about another 65 lines to the section, for a total of 150 lines.  This year’s changes to the MIH element in HB462 added another 35 lines of code.  The newly added water planning element (SB110) will add 55 more lines of code, and the station area plan element will add a whopping 230 lines of code, by itself more than doubling the size of Part 403.  In addition, the reporting requirement for the MIH element, which has it’s own part in Section 4 (Part 408), with this year’s bill will go from 25 lines of code to 150.

Wow!  As good as the requirement to plan for these things is, does it really need that much detail?  By way of comparison, here’s what Part 4 says now what is required for the land use element:

a land use element that:

(A)

designates the long-term goals and the proposed extent, general distribution, and location of land for housing for residents of various income levels, business, industry, agriculture, recreation, education, public buildings and grounds, open space, and other categories of public and private uses of land as appropriate; and

 

That’s it!  Nine lines of code! With that, we get an amazing variety of land use provisions in community general plans, that are pretty much tailored to what each one feels is appropriate and desired for them.  Not always perfect, but some are very extensive and detailed, others not so much.  But each seems to fit the needs and character of that place.  The current language for the transportation element is not much more.

Now comes the new water planning element with 55 lines of code, and the SAP element requirements with 230 lines!  These requirements include language like:

(ii) shall include a recommendation for:
221          (A) water conservation policies to be determined by the municipality; and
222          (B) landscaping options within a public street for current and future development that
223     do not require the use of lawn or turf in a parkstrip;
224          (iii) shall review the municipality’s land use ordinances and include a recommendation
225     for changes to an ordinance that promotes the inefficient use of water;
226          (iv) shall consider principles of sustainable landscaping, including the:
227          (A) reduction or limitation of the use of lawn or turf;
228          (B) promotion of site-specific landscape design that decreases stormwater runoff or
229     runoff of water used for irrigation;
230          (C) preservation and use of healthy trees that have a reasonable water requirement or
231     are resistant to dry soil conditions;
232          (D) elimination or regulation of ponds, pools, and other features that promote
233     unnecessary water evaporation;
234          (E) reduction of yard waste; and
235          (F) use of an irrigation system, including drip irrigation, best adapted to provide the
236     optimal amount of water to the plants being irrigated;
237          (v) shall consult with the public water system or systems serving the municipality with
238     drinking water regarding how implementation of the land use element and water use and
239     preservation element may affect:
240          (A) water supply planning, including drinking water source and storage capacity
241     consistent with Section 19-4-114; and
242          (B) water distribution planning, including master plans, infrastructure asset

243     management programs and plans, infrastructure replacement plans, and impact fee facilities
244     plans;
245          (vi) may include recommendations for additional water demand reduction strategies,
246     including:
247          (A) creating a water budget associated with a particular type of development;
248          (B) adopting new or modified lot size, configuration, and landscaping standards that
249     will reduce water demand for new single family development;
250          (C) providing one or more water reduction incentives for existing development such as
251     modification of existing landscapes and irrigation systems and installation of water fixtures or
252     systems that minimize water demand;
253          (D) discouraging incentives for economic development activities that do not adequately
254     account for water use or do not include strategies for reducing water demand; and
255          (E) adopting water concurrency standards requiring that adequate water supplies and
256     facilities are or will be in place for new development; and
257          (vii) for a town, may include, and for another municipality, shall include, a
258     recommendation for low water use landscaping standards for a new:
259          (A) commercial, industrial, or institutional development;
260          (B) common interest community, as defined in Section 57-25-102; or
261          (C) multifamily housing project.

Sorry to quote so much new code language, but I do it to make a point – do we really need that level of detail in Section 4 of the state code on General Plans to get communities to plan for water supply and conservation? As I said before, I think we’re in danger of overwhelming our citizens and our planning staffs with detail and mandates.  Why not have the general level requirement in this section of code similar to the language for the land use element, and let communities come up with their approaches to it?  And if it is felt that more detailed is needed to guide or direct communities, would it be better to charge a state agency with rulemaking authority to come up with some more detail?  Now any time we find that any of these details are not working or need to be changed, we will have to go to the legislature to amend state code.  And the SAP element section is even more detailed.  I would argue this is overkill.  And it is particularly overkill in a section of the code that by its very nature is “an advisory guide.”  I would also argue that with these changes, the general plan is no longer advisory only.  Some parts sort of are, and some are not.

By making the code this long and complex, we are discouraging our citizens who are charged with accomplishing planning for our communities, our planning commissioners and elected officials, from reading and understanding and embracing the policies embodied in our state code.  I think we’re getting to the point where we need to rethink Section 4 of LUDMA – should it be it mandatory? Is it a policy level declaration, or a detailed technical blueprint? (I would argue that our state code should be policy level, and technical detail should be carried out at the rulemaking level, outside of state code).

I’m happy to have discussion about this.  Let’s see if we can get a forum going to work this through.

WHAT HATH WE WROUGHT?

March 7, 2022

It’s over.  Now to assess the damage. Here’s a rundown of all the bills we were tracking and brief synopsis of how they affect planners and planning (many of these bills do a lot more, but I’m focused mainly on the land use planning impacts).

BILLS PASSED

H.B. 35 Economic Development Modifications – changes how economic development incentives are determined and how economic development zones are set up, including a requirement that such proposed areas must have a locally-developed long range plan that addresses transportation and infrastructure, workforce development, and housing needs.

H.B. 36 Commission on Housing Affordability Amendments – makes the Commission on Housing Affordability a subcommittee of the Unified Economic Opportunity Commission, which as we’ve noted in previous posts has become the de facto growth planning body for state government.

H.B. 118 Wetland Amendments – in the LUDMA section on wetlands, adds the requirement that a copy of any land use permit approved by a local entity that affects a designated wetlands must be sent to the Utah Geological Survey.

H.B. 146 Local Licensing Amendments – among other things, loosens up regulation of food trucks considerably to the point where a food truck needs only one business license from one jurisdiction, after which it can operate in any jurisdiction without having to obtain any further licenses or approvals.  As part of obtaining a business license, the local entity cannot require the food truck operator to show how land use and zoning regulations will be complied with.

H.B. 151 Retail Facility Incentive Payments Amendments – an extensive bill that limits local economic incentives that can be provided for commercial development.  This bill will have its own training session, it’s that extensive.

H.B. 232 Utah Lake Authority and H.B. 240 Utah Lake Amendments – here’s a good news story that describes what these bills do.

H.B. 282 Water Wise Landscaping Amendments – creates a new section in LUDMA titled Water Wise Landscaping.  Among other things, this new section prohibits local entities from prohibiting defined water wise landscaping.

H.B. 303 Local Land Use Amendments – originally this bill was a ridiculous provision that would have required notice to be given for any change of zoning or change in the text of land use ordinances and allowed property owners the right to apply for changes before the proposed modifications were considered by the local entity.  The bill was substituted and became the land use task force bill, which has a number of changes to LUDMA.  Will be discussed in detail at post-legislative sessions and future posts.

H.B. 305 Natural Resources Revisions – makes a number of changes in the Department of Natural Resources, including to the Outdoor Recreation programs administration, and does away with the old Quality Growth Commission.  It creates essentially a new Land Conservation Commission to oversee use of state funds for open lands preservation, among other things.

H.B. 322 Public Transit Capital Development Modifications – This bill requires the State Department of Transportation to manage and oversee all fixed guideway capital development projects that include state funding. There’s an editorial comment in this in that the state has never overseen rail and transit projects to the extent that UTA has, but oh well.

H.B. 409 Recreation Infrastructure Amendments – This bill provides for the creation of a restricted account to fund outdoor recreation infrastructure, and allocates over $36 million for outdoor recreation projects, including for trails.

H.B. 410 Great Salt Lake Watershed Enhancement and H.B. 429 Great Salt Lake Amendments – here’s a news story that describes what these bills do.

H.B. 438 Point of the Mountain State Land Authority Amendments – makes changes to sources of revenue for the Authority and how the board operates, among other things.

H.B. 440 Homeless Services Amendments – This bill modifies provisions related to the oversight and provision of services for individuals experiencing homelessness. On the land use side, it prohibits municipalities from imposing certain capacity limits on homeless shelters during a limited period of time under certain circumstances, and prohibits municipalities from restricting an entity from operating a temporary overflow shelter from a facility owned or operated by the entity during a limited period of time under certain circumstances.

H.B. 443 Utah Inland Port Authority Amendments – this bill made a number of modifications to the UIPA.  The most noted is well-described by the Deseret News: “This year’s bill, HB443, was approved with widespread support by both the House and Senate. It would dissolve Salt Lake City’s voting membership on the Utah Inland Port Authority Board in exchange for a 25-year contract and a larger share of future tax increment within the port’s jurisdiction.  Even though the bill would strip Utah’s capital city of voting power on the board, Salt Lake City Mayor Erin Mendenhall and the City Council supported the bill as a result of good faith negotiations with state leaders to better position Salt Lake City in control of its future tax revenue.”

H.B. 462 Utah Housing Affordability Amendments – this is the biggie bill from this year, the housing bill.  It makes a number of changes to the general plan section of LUDMA, in the moderate income housing element and creates a new required element for transit station area plans.  It also makes extensive changes to the reporting requirements for moderate income housing implementation.  There are some other things as well, including some funding provisions for some planning-related programs, more about those in the near future.

S.B. 110 Water as Part of General Plan – this bill adds another new required element to the general plans section of LUDMA, for water planning.

S.B. 140 Housing and Transit Reinvestment Zone Amendments – this bill makes a number of changes to the provisions for HTRZs, which were first authorized in a bill last year.  These provisions are extensive enough that they probably warrant their own training session for those who are interested, or even may be required to put one in place to comply with other requirements just adopted this year.

S.B. 232 Military Installation Development Authority Revision – makes a number of what are essentially technical changes to the MIDA provisions in state code.  On this topic of Authorities like MIDA, UIPA, Point of the Mountain and now Utah Lake, here’s an interesting piece from Salt Lake Trib writer Robert Gehrke about them.

As you can see, plenty of new requirements to meet and processes to adjust.  Now here’s a list of the bills we were following that did not pass, some of which may be back in the future!

BILLS NOT PASSED

H.B. 85 Eminent Domain Amendments – would have prohibited use of eminent domain for parks and open space.

H.B. 95 Landscaping Requirements – poor Rep. Ward worked so hard on this bill…

H.B. 128 Education Impact Fee Amendments – would have authorized the use of impact fees for schools.

H.B. 135 Open and Public Meeting Modifications – would have required that most open public meetings to allow for public comment (though, interestingly, it would have exempted Planning Commission meetings).

H.B. 164 Public Transit Fares – would have provided for all free public transit – an idea who’s time may yet come.

H.B. 253 Large Concentrated Animal Feeding Operations Amendments – would have removed the February 1, 2022 deadline for counties to adopt regulations restriction these operations.

H.B. 288 New Growth Amendments – would have stipulated for county assessors how to value ADUs.

H.B. 327 Airport Land Use Amendments – This bill would have amended provisions in LUDMA related to land use requirements near an airport influence area.

H.B. 372 Short-term Property Rental Amendments – would have authorized local governments to regulate short term rentals (they can be now without this provisions, it would just have removed the prohibition on using on-line advertising as the basis for enforcement).

H.B. 407 Short-term Rental Enforcement Amendments – similar to HB372 above.

H.B. 416 Property Rights Ombudsman Amendments – a ridiculous bill that would have in essence turned the property rights ombudsman’s office into the state land use police.

H.B. 435 Mining Regulation Amendments – would have required that defined “small mining operations” seeking state permits must publish a notice of intention in counties of the first and second class.

H.B. 445 Homeowners Association Amendments – would have put the property rights ombudsman’s office in the business of adjudicating for HOAs, which are private contracts, not governmental functions.

H.B. 474 Municipal and County Land Use and Development Revisions – this was originally the land use task force bill, but due to timing in the legislative session and the workload of the sponsor, this bill was rolled into and became HB303.

H.B. 476 Local Agricultural Regulations – an odd prohibition on local regulation of animal-related businesses and activity, except that it exempted land use regulations (??).

S.B. 225 Farmland Assessment Act Amendments – would have allowed property that is rezoned or redesignated for development, but is not yet development, to remain in greenbelt designation.

Also, from the WFRC, here’s an explanation of funding for planning related activities passed in appropriations:

These two planning and growth items were included in the Governor’s FY23 recommended budget, endorsed by the Unified Economic Opportunity Commission (UEOC), and endorsed by the UEOC working group on Sustainable Community Growth.

• $1.65M ongoing for planning technical assistance. Of the total, $1.05 million would go to the state’s seven Associations of Governments for training, grant writing, and other technical assistance. $600,000 of the total would go to UDOT for the Technical Planning Assistance Grant Program. Technical assistance will help aid local governments as they are challenged to meet the increasing demands of planning for growth, transportation, housing, and economic opportunity.
• $1M one-time for GOPB planning for growth. This appropriation is intended for a “Statewide Growth Conversation” to help residents statewide understand the implications of the various ways that growth might unfold, and the importance of planning today for tomorrow. GOPB, in conjunction with various community partners, will oversee the effort, and will engage many stakeholders.

Additionally, note these funding provisions that were passed as part of the housing bill, HB462:

Housing Development          $250,000
The Legislature intends that the Department of Workforce Services distribute funds appropriated under this item to a nonprofit entity in the state that provides training and education on land use law,  the recipient entity use funds distributed from the Department of Workforce Services under this item to provide regional land use training and workshops to local officials and policymakers on housing issues.

Housing Development          $250,000
The Legislature intends that the Department of Workforce Services distribute funds appropriated under this item to a nonprofit entity in the state that engages in efforts to increase housing affordability through local zoning and housing regulation reform.

More on what these funds are for in a future post as they are fleshed out more.

Okay, I still have things to say about what did and didn’t happen in the session, like the need for annexation code reform, and what’s happening to the general plan section of LUDMA, but I’m tired writing all I have this morning and I’m going skiing now on this fresh snow!  So, watch this space for future posts!

IT’S OVER! (WELL, ALMOST)

March 4, 2022

All of the major land use bills have now passed, with maybe only a few relatively minor modifications from what we’ve described in earlier posts.  Those bills are:

HB35 – Economic Development Modifications

HB36 – Commission on Housing Affordability Amendments

HB118 – Wetlands Amendments

HB135 – Open and Public Meeting Modifications

HB146 – Local Licensing Amendments (food trucks)

HB151 – Retail Facility Incentive Payments Amendments

HB232 – Utah Lake Authority

HB240 – Utah Lake Amendments

HB303 – Local Land Use Amendments – the land use task force bill.  There are a couple of outstanding issues still with this bill, such as standing for appeals actions, that will have to be sorted out in the interim this year

HB305 – Natural Resources Revisions – does away with the Quality Growth Commission and sets up a new land conservation board, also addresses trails

HB322 – Public Transit Capital Development Modifications

HB410 – Great Salt Lake Watershed Enhancement

HB429 – Great Salt Lake Amendments

HB440 – Homeless Services Amendments – has some effect on local land use authority.  News story about the bill

HB443 – Inland Port Authority Amendments

HB462 – Utah Housing Affordability Amendments – the BIG (really BIG) housing bill

SB110 – Water as Part of General Plan

Planning-related bills that are still hanging fire, awaiting action, are:

HB282 – Water Wise Landscaping Amendments – awaiting a vote in the Senate

HB288 – New Growth Amendments – specifies for taxation purposes how ADUs are to be assessed and valued – awaiting final vote in the House before having to go to the Senate for consideration

HB438 – Point of the Mountain State Land Authority Amendments – awaiting final vote in the Senate

HB476 – Local Agricultural Regulations – introduced in Senate

SB140 – Housing and Transit Reinvestment Zone Amendments – circled on the House floor

SB232 – MIDA Revisions – circled on the House floor

All the other bills we brought up and talked about previously are pretty much dead at this point – though I have seen zombies come back to life, so never say never, but… it’s unlikely for any of those bills.

There’s plenty to talk about in these bills.  I’m probably going to start calling this session the year of the general plan because of all the additions and modifications made by bills this year to the general plan section of LUDMA, not all of which I think is well-done (more on that to come).  For now, sit back and read and contemplate.

In addition to some commentary that will be coming on this blog about some of the bills, there will be legislative update sessions coming up where we can discuss the bills live and in person!  The first will be at the APA Utah spring conference in Kanab March 25.  There will be a joint League/APA legislative update session on March 31 in North Salt Lake, more details to come.  And the League, DWS, Housing Coalition and others will be doing more deep dives into what these bills require on some specific topics like moderate income housing, station area plans, etc.  Watch for those details as well.  I’ll try to pass them along.

TWO-MINUTE WARNING (WELL, TWO DAYS ACTUALLY)

March 3, 2022

Nothing much to report with the major land use bills, they are awaiting action in the respective chambers.  No big changes to them, though apparently there are some changes to the housing bill that have been talked about but nothing major.  We’ll keep an eye out.

For some of the “minor” bills (they’re not minor really, just in comparison to the biggie bills), here’s some updates

A story in the Trib tells of a last minute amendment to HB146 – Local Licensing Amendments, which is mainly about food trucks.  The amendment would prohibit local regulation of ATVs, side-by-sides and other off-road vehicles.  An odd addition, and interesting reasons for it, and rather disturbing that it comes so late in the process when the normal comment process is pretty much over.  At this point, it looks like only the amendment that would prohibit local noise regulations against ATVs has been included in the bill, but it ain’t over till its over.

Here’s another Trib story, this one about the animals bill, HB476 – Local Agricultural Regulations.  It still says this does not apply to local land use regulations, so this is an odd mixture of prohibitions and status quo.

And here’s a piece from KUTV about the unanimous passage of HB410 – Great Salt Lake Watershed Enhancement.  Unanimous! Wow!  But then, it is the Speaker’s bill…  Lots of planning work in this bill.

Finally, I just want to take a minute again and shine a light on the top-down vs. cooperative approach to zoning reform that I’ve harped on in several posts previously.  Here’s a recent piece by Planetizen writer Diana Ionescu titled How Cities are Resisting State Efforts to Increase Density.  As far as I’m concerned, this is preaching to the choir about how top-down efforts breed resentment, non-cooperation and ultimate failure.  A couple of excerpts to make the point:

Cities are attempting to wrest back local control over land use and zoning via some ingenious—and sometimes disingenuous—strategies. … (they) are finding creative (or, from another perspective, misleading) ways to skirt housing requirements and challenge rezoning efforts.

The growing revolt against blanket upzoning may reflect simple NIMBYism—but if states want to make headway in easing the housing crisis, they may need to both boost enforcement of zoning reform and consider more flexible housing policies sensitive to local concerns.

Diana gives several examples of ways in which state-level mandates are being circumvented by locals.  Take look, it’s most telling. We at least have a legislator who has become the lead on all things land use reform who recognizes the need for a cooperative approach.

Okay, only two days left and then we can talk about other things, as well as about what just happened to us in the legislative session.

MEET ME AT THE STATION!

March 2, 2022

The substitute for the housing bill is now out, HB462 – Utah Housing Affordability Amendments, 1st substitute which has the station area plans requirements included.  There is a lot here to be digested, and I have to admit I haven’t had the time to look it over completely and ascertain all the changes and things that are in this bill, but I’ll try.  To help with this, here’s a summary of the bill as it now exists prepared jointly by the League and the Wasatch Front Regional Council.

A couple of things that I have picked up from looking this bill over.  The Station Area Plans (SAP) requirements are included, as are the Moderate Income Housing (MIH) provisions, in the general plan section of LUDMA.  The provisions for the SAPs are quite detailed and involved, much more so than for any of the previously included elements for the general plan.  So I’ll just repeat my comments about that from earlier, this is all great a good, but in the end general plans are advisory only under state code.  Many of the provisions for SAPs and MIHs being put into this section of LUDMA are rather mandatory as to what is to be considered and how it is to be done, but in the end, all this for a plan that is only advisory?  And it isn’t really just “advisory” anymore, because these new amendments provide that if they are not complied with, certain types of state funding can be withheld from the offending communities.  MIH provisions require detailed reporting to a state agency, and can be the basis for withholding of other types of funds.  And SAPs, under this proposal, must be reviewed and certified by the Metropolitan Planning Organization (MPO).  Also, there are requirements in the SAP stuff that say that if a land use application is submitted before a community has had a chance to complete the SAP element, it must be completed within a 12 month period.  Also if it includes residential development, the application must then be processed on a first priority basis.  All this doesn’t sound very “advisory only” to me anymore.  I’m not disagreeing with these provisions necessarily, I think there’s a lot of benefit that will come from them (if nothing else, they are certainly full-employment measures for planners! 😊).  We just need to have a bigger discussion about the advisory-only nature of general plans and if that should be reconsidered and modified in light of the expectations that are being put on this document by these new provisions being added.

Another interesting provision included in this bill with regard to SAPs is this: “a proposed referendum is not legally referable to voters for a transit area land use law, as defined in Section 20A-7-6, if the transit area land use law was passed by a two-thirds vote of the local legislative body.” Now it is clear that the adoption of a general plan or any part of it is a legislative act and it has been my understanding that legislative acts by any elected body are subject to the referendum process by the citizens.  However, better legal minds than mine have pointed out that the state constitution provides an exception for the state legislative actions that are adopted by a two-thirds majority.  The theory here is that that same provision can be applied to local legislative actions as well.  Okay.  We shall see.

The bill is rolling along.  It was passed late yesterday afternoon by the House and has been sent over to the Senate.  The other big land use bill, HB303 – Local Land Use Amendments, is awaiting a vote on the Senate floor, after which it will be sent back to the House for their concurrence, so it’s close to being done as well.

Send in your cards and letters, folks, as you read these bills and spot something of interest to you.  But as noted, there’s not much time left!

I haven’t talked much about the funding aspects of the housing provisions of these bills.  Here’s a good story that will help you get a better sense of what’s going on with all that.

Okay, now that the biggies are somewhat handled, I’ll try to do some descriptions of the other more “minor” bills that are still hanging fire out there in an upcoming post.

“WE DO ANIMALS, NOT HOUSING”

February 28, 2022

I just listened to the committee hearing for HB462 – Utah Housing Affordability Amendments, which is commonly referred to as the SB34+ bill.  It was heard in the Natural Resources committee, which I think was maybe a tactical error because some of the legislators there were uncomfortable dealing with a bill this big on this issue this late in the session, and their more rural orientation (“this seems like a lot to put on the small rural communities”).  Rep. Waldrip and Cam Diehl confirmed that the station area plan provisions that have been worked on for some time now, will be added into this bill soon, which made the chair of the committee uncomfortable that they are considering a bill that will be changed substantially after they consider it.  One committee member even stated that this committee isn’t used to dealing with issues like this, they are better at things like animals (chuckles all around). The bill got a lot of support from speakers, but also some opposition, including some crazy opposition from a former legislator.  In the end the bill passed favorably out of committee, but with a lot of comments about how some members didn’t like how big this bill was coming out so late, and was going to be amended.  The chair vowed to stand in the way if the amendments weren’t “proper.”  Let’s see what happens when the station area plans provisions are added to the bill on the House floor.

Another story about what’s happening with the Utah Lake bills.

The League put out an action alert for HB85 – Eminent Domain Amendments, which would prohibit local governments from using the power of eminent domain for parks and open space.  This bill is circled on the House floor, which means it could come up anytime when the House is in session.  Contact your legislator if you have strong feelings on this bill!

We’ve been advocating for the more collaborative approach to dealing with the housing crisis that we seem to be undertaking here, as opposed to the top-down approach that has been taking place in other states around the country.  We still, however, get “bad” bills that try to do the top-down, such as HB416, trying to make the ombudsman’s office the state land use police.  Here’s a good object lesson about how badly such an approach can go, of course again from California, in the LA Times – Los Angeles must rezone to accommodate an additional quarter-million new homes by mid-October after state housing regulators rejected the city’s long-term plan for growth.

BREAK TIME

February 27, 2022

I’m in the mood to take a short break from talking about legislative bills on this final weekend before the last few days of the 2022 state legislative session.  This piece from The Atlantic caught my attention yesterday because it reflects succinctly some of the issues we are facing here due to our rapid growth, and the fact that much of the local policy processes are dominated by single-family homeowners who frequently turn into NIMBYs.

As you read through this piece, which I have reproduced in its entirety below, take note of some of the correlation to our issues – we are also seeing a significant rise in demand for housing, not so much from university student influx, but certainly from our strong economy which attracts new businesses and new workers, adding to our already strong natural increase in population; the argument that some make that if we want to preserve our quality of life and stop attracting so many new people and the consequent pressure on housing costs, just stop building new housing, then those new people won’t come! (If only it actually worked that way, but no, sorry, it doesn’t). And finally, the futility that trying to impose top-down legal or legislative mandates fails to win hearts and minds and achieve real and lasting solutions (I may be exhibiting Pollyanna-ish thinking here, but it’s maybe worth a try, heaven knows California’s approach doesn’t seem to be working).

NIMBYism Reaches Its Apotheosis

By Annie Lowrey

The Atlantic

Phil Bokovoy, a former investment banker and ardent community activist, is giving me a tour of his neighborhood, Elmwood, in Berkeley, California. It is some kind of paradise. October weather, all year round! Arts-and-crafts manses on streets lined with redwoods, succulents, and oaks! Accessibility to San Francisco in minutes and Yosemite and Tahoe in hours! Walkability, bikeability, transit, parks! One of America’s best institutions of higher education, UC Berkeley!

But Berkeley the school is putting Berkeley the city at risk, Bokovoy tells me. Students are driving up housing costs, displacing low-income families, draining city resources, and degrading the environment. To stop that from happening, the community group he leads, Save Berkeley’s Neighborhoods, in 2019 filed a lawsuit under the purview of the state’s Environmental Quality Act, or CEQA—a far-reaching law frequently invoked by opponents of new development. A superior-court judge ordered the school to throttle enrollment, because additional students might “result in an adverse change or alteration of the physical environment.” Short of a reprieve from the state supreme court, UC Berkeley said this month, it will have to issue roughly 5,000 additional rejection letters, slashing the size of its incoming cohort by a third.

UC Berkeley is calling the situation “dire.” City and state politicians are apoplectic. High-school seniors are enraged. Bokovoy agrees that this is a nightmare, calling the university “incompetent” and arguing that administrators have “created their own crisis,” while also insisting that the current growth situation is dangerous and untenable. This is a town-gown dispute playing out on a national stage, one pitting homeowners against renters, the old against the young, and antidevelopment lefties against density lefties. It is also an object lesson in how impossible the housing crisis will be to solve if everyone is able to say no to building in their own backyard.

Some things are not under dispute: The university has added students without adding dorm rooms to house all of them, just as the Bay Area has added jobs without adding enough homes. That has resulted in the homeless population swelling, families moving to far-flung suburbs, and skyrocketing housing prices. The problem is statewide but particularly acute in Berkeley. Fixer-uppers in Bokovoy’s neighborhood go for $1 million. Nice family homes go for double that, easy. And single bedrooms in shared homes go for $1,000 a month, if not more.

The solution is not really under dispute either: California needs to build more housing—dorms, apartment buildings, casitas, duplexes, fourplexes, anything to bring prices down for students and everyone else. The state “has been underbuilding for something like 30 years now,” Jenny Schuetz, an economist at the Brookings Institution, told me. “The amount low-income families are spending on housing is completely unsustainable.”

Bokovoy—a gregarious, community-minded, dyed-in-the-wool liberal—agrees that the situation is completely unsustainable, but because there are too many people, not too few houses. Last week, he walked me around the neighborhood to make his case. We started at his home, a corner-lot beauty that he has owned since the late 1980s. He bought it with a former partner just after graduating from the university himself, he noted. (He’s an ABDfrom the graduate economics program and has a law degree.) “It was a duplex, or a single family that had been badly converted to a duplex,” he said. “We fixed it up.”

Many of the homes in the neighborhood are lovingly cared for stand-alones occupied by single families. But some have been converted into multifamily units or “mini dorms” occupied by students. “This place was a beautiful brown shingle,” Bokovoy told me, pointing at a house two doors down from his. “It got bought by one of Berkeley’s most notorious landlords” and has “triggered the neighborhood” ever since, he said, noting that there are “parties, beer bottles thrown into the neighbors’ yards, [students] up on the roof illegally.”

That kind of disorder drives him nuts. To mitigate it, he first worked with the university, helping implement an information campaign called Happy Neighbors that publicized the city’s overnight “quiet hours” and warned students about the potential for public-nuisance fines. “It was really clear that the university wasn’t going to have the resources to make the project successful,” he said as we walked up through the UC Berkeley campus.

In time, “get off my lawn” became “not in my backyard,” and complaints and flyers and community meetings became lawsuits. As we passed near the site of a proposed beach-volleyball complex, he warned of noise and light pollution and wondered if people could evacuate safely in the event of a wildfire. He said the city’s transit system was overloaded, and argued that “people love cars” and thus “we need to figure out how to design around them.”

Bokovoy also cited homelessness and displacement as major concerns. When I suggested the city could remedy those problems by allowing developers to pull down or convert single-family homes, he wasn’t pleased. “A travesty,” he said, and the kind of thing that would cause the neighborhood to “revolt.” “There’s a lot of resentment over that kind of thing” across the state, he told me. There are towns “full of new homeowners who were immigrants, who lived in crowded, dense places.” He went on: “They do not want to have fourplexes next door to them. It’s just—that’s what they spent their lives trying to get away from.”

Aesthetics mattered to him, too. He marveled at a white-brick apartment building that he called “contextual,” and pooh-poohed a 1950s concrete number for being “non-contextual.” Berkeley’s homes are what “make Berkeley special as a place to live,” he said. “If you look at the stuff that’s going up, it’s really pretty awful.”

For the students, he suggested that the university add facilities, but not in Berkeley—maybe in nearby Richmond or El Cerrito. “I went to school in Ann Arbor, which has a satellite campus,” he told me. “They did that because Ann Arbor is a very constrained environment. It’s a historical city, just like Berkeley.” He added that he did not advocate “just sticking students out there. I mean, I think there are academic units that could be there. And it’s pretty close to transit. There are two El Cerrito BART stations.”

If that’s what it takes to keep Berkeley special, Bokovoy thinks it’s worthwhile. What that means in practice, though, is thousands fewer Berkeley students and tens of thousands fewer Berkeley families. Keeping Berkeley special for existing Berkeleyans is the housing crisis, because it means long commutes and unsustainable prices. Keeping Berkeley special for existing Berkeleyans is the environmental crisis, because it means more Californians living in sprawl and commuting by car. The university needs to expand as California expands, and Berkeley needs to expand too.

Save Berkeley’s Neighborhoods might have prevented that from happening this year, and thousands of kids might have to attend college elsewhere as a result. But this week, State Senator Scott Wiener announced a bill to exempt student housing from CEQA. (The timing was a coincidence, he told me, because the bill has been in the works for months.) Activists are hoping to harness public outrage to target other parts of the law as well. “This is crystallizing just how deranged and broken the process is,” Brian Hanlon, the chief executive officer of California YIMBY, told me.

That might mean a different, denser Berkeley, with new neighbors whom Bokovoy will have to learn to live with. At least part of the time. Before the coronavirus pandemic hit, he said, he spent much of his time traveling and half of the year living in his second home, in another earthly paradise that welcomed him as a newcomer: Nelson, New Zealand.

(note from Wilf- wait, the protagonist of this piece bought a house in New Zealand?  The guy who doesn’t like outsiders crowding in and causing problems by wanting to live in his community?  New Zealand, which is experiencing the sixth-highest increase in housing costs worldwide over the last few years, in part because of, as website NewsHub said in a story on New Zealand housing, “Asked what was responsible for the doubling of house price growth over the past seven years, … just over half (52 percent) thought rises were due to overseas buyers…”  Oh the tangled webs we weave…)

LEGISLATIVE STRATEGY

February 25, 2022

Nothing major overnight, just some updating to report.

First, the land use task force bill, HB474 – Municipal and County Land Use and Development Revisions, which came out yesterday and we posted about, has been subsumed into HB303 – Downzoning Notice Amendments and renamed.  It is now HB303 – Local Land Use Amendments.  This was done probably for a couple of reasons (I’m guessing now, don’t know this for sure): first, the sponsor of HB474, Rep. Steve Waldrip, is carrying all three of the major land use bills this session, as well as some other bills that are pretty big, and he’s getting pretty loaded up.  So this would hand off one of those bills to another legislator (Rep. Val Peterson) and lighten his load.  Second, as noted in the last couple of posts, time is getting really short in this legislative session and getting these major bills through in the few days remaining is going to be tough.  HB303 had already passed the House, been heard and favored in Senate committee and is on the Senate floor awaiting a vote.  Substituting the bill means it just needs to complete this last step (pass on the floor of the Senate) and then be concurred to by the House, which it likely will.  The downside is that the provisions in HB474 are not going to get a hearing in committee.  Hmmm.  But anyway, the provisions of HB474 are pretty much intact in the new (substitute) HB303, with a couple of things to note: first, the provisions of HB303 (dealing with notices for changes to text of land use ordinances, which the League got the sponsor to agree to change to much more acceptable language) are still included.  And second, a provision regarding inclusionary zoning (IZ) has been added.  In yesterday’s post, I noted that the housing bill (HB462) added to the moderate income housing element’s list of affordability-promoting options an explicit provision for a local government being able to require inclusionary housing.  The new provision that has been added in HB303 is in the land use regulations section, adding a new Section 535 – Moderate Income Housing, which would allow a municipality to require a certain number of moderate income housing units in a new development if agreed to by the applicant, or if incentives are provided.  If the applicant does not agree, the municipality cannot use that as a basis to deny the application.  The section also allows resort communities to retain IZ requirements they may have adopted by January 1, 2022.  So.  IZ would now authorized by our state code, sort of, if this bill passes.

Another sort of odd bill popped up yesterdays as well, HB476 – Local Agricultural Regulations.  It would prohibit a local jurisdiction from adopting any ordinance or regulation that effectively prohibits the operation of an animal enterprise or working animal.  Animal enterprise is defined in the bill as “an animal competition, aquarium, circus, exposition, fair, farm, feedlot, furrier, retail pet store, ranch, rodeo, zoo, or an event intended to exhibit or advance agricultural arts and sciences.”  Wow, that’s pretty restrictive on all kinds of things normally handled in zoning codes!  But then the bill goes on to say that this “does not apply to an ordinance or other regulation adopted or enforced by a political subdivision if the ordinance or other regulation is… a land use regulation.”  So…. What’s the point of this?  🤷‍♂️

Last thing, the station areas planning bill is still not out, and as we noted earlier, it is getting really late in the session for a new bill to pop out now and have much chance of getting all the way through the process.  So I wouldn’t be surprised to see the station area planning provisions rolled into maybe the housing bill (HB462) and get a jump on the process that way.  We will keep our eyes open.

TWO BIG BILLS OUT

February 24, 2022

All right, two of the three big land use bills appeared yesterday (the transit station area plans bill is still MIA).  I’ve had some time to peruse them and give you some of my analysis and comments on them here.  Please, feel free to email me with any comments you have as you look them over and we’ll get them out as well.  This is usually a beneficial thing as nobody can be expected to anticipate or see every possible ramification or issue with these bills, especially as large and complex as these are.  The only problem is, these bills have come out so late in the session there may not be enough  time to resolve issues, particularly if they’re complicated or controversial.

The housing bill, or what’ been called the SB34+ bill, is HB462 – Utah Housing Affordability Amendments incorporates much of what has been talked about for months by the Commission on Housing Affordability and others.  From a land use planning process standpoint, the biggest thing this bill does is make substantial modifications to the General Plan section of LUDMA for the required Moderate Income Housing element.  Instead of me describing those changes here, let me refer you instead to the white paper prepared by League staffer Karson Eilers.  Karson has done great work on summarizing all the provisions of this bill, which in addition to the MIH element changes also makes a number of changes to the Accessory Dwelling Unit provisions passed last year, to housing programs and funding, and some other things.  Just one point I’ll add to what Karson wrote as I have been asked about this by a couple of people, the language in the bill specifically allows inclusionary zoning.  Here’s the direct excerpt as one of the options that a local entity can consider implementing:

“or the adoption of a land use ordinance that requires 10% or more of new residential development in a residential zone be dedicated to moderate income housing”

As I noted earlier, this bill (and the others) are coming out very late in the session and will need to move fast if they are to make it through.  As such, this bill is already scheduled for a committee hearing tomorrow morning at 8:00 am.  If you have comments, get them in fast!

Now let me riff a little on what’s happening with the general plan provisions of LUDMA with this and other bills that are up in the legislative session.  In the state of Utah, a local government that wishes to regulate land use must do several things, one of which is it must prepare and adopt a general plan.  That’s part of the planning process, it makes total sense.  But interestingly, in Utah, under the law, general plans are not compulsory, in that their provisions are not required to be implemented.  Section 405 of LUDMA states:

“the general plan is an advisory guide for land use decisions…”

The things that have been amended into the general plan section of LUDMA for Moderate Income Housing the last couple of years, however, have a number of “mandatory” provisions.  The new language which is proposed as part of this bill also appears to tie implementing the provisions in the MIH element to eligibility for state funds.  That’s getting pretty compelling!  Another part of the bill states that the transportation element for general plans are to be “coordinated with” and not just “consider” regional and statewide transportation plans.

There is also another bill in this session, SB110 – Water as Part of General Plan, which I wrote about in an earlier post and noted that it makes very extensive and specific requirements of what is to be considered and accounted for in a new required Water element for general plans.  The entire tone of this to me suggests that the proponents intended for this to be mandatory for local governments to implement, though it does not specifically say that (maybe they did not know that general plans are “advisory only,” just speculating).

As a planner, I support the idea that general plans should have more influence on how land use is implemented in our communities, maybe even to the point that they should be mandatory (as they are in a number of other states).  But there’s been plenty of pushback on efforts to make this the case in the past from local elected officials and legal counsel.  Given the bills we’ve got before us right now, though, one could argue that we’re moving toward making plans mandatory bit by bit.  Doing it this way, however, makes things confusing for planners, local officials and the public.  Is a plan mandatory?  Language in the code says clearly it is advisory, except there are parts…  We should take this up as an issue to be resolved soon.  Either plans are mandatory, or they’re not.  Let’s not just do so for parts of it and add to the ambiguity of how the land use process works.

Okay, on to the next bill, the land use task force bill, HB474 – Municipal and County Land Use and Development Revisions.  There are a number of disparate provisions in this bill.  Let me summarize:

• It would limit who could challenge a proposed annexation in the courts to those who have standing as defined in the code, and who can petition to withdraw from a proposed annexation. (editorial comment – I can see this provision for legal challenges to the process, but an annexation is still a legislative decision in the end, which means those opposed could do a referendum on it – probably a more difficult venture, but still possible).
• When a local entity intends to change the standards for public improvements for subdivisions and development, notice must first be provided and a public hearing held.
• Repeals the provision that was adopted in a legislative bill last year that says no changes in land use regulations can be required of properties for 10 years after the final approval of a plat or development
• The standard for determining the legality of a nonconforming use or structure is to be “substantial evidence”
• The combining of lots in a subdivision require a subdivision amendment to be filed, if required by local ordinance
• Local entities must approve a condominium plat unless it violates local land use regulations
• Adds to the provisions of what is considered to be an illegal land use decision the term “it exceeds the authority granted” in LUDMA
• Adds detailed requirements for the making of boundary line agreements between property owners where the lines between the properties are ambiguous or unclear.

Okay, just a couple of other quick items of interest.

Here’s a story about the Utah Lake bills, and here’s one about why Salt Lake City is okay with the Inland Port bill as proposed.

IT’S COMING…  REALLY!

February 23, 2022

No new bills out yesterday.  The major bills are frantically being worked on according to the report given in the League’s LPC meeting yesterday.  There’s even some discussion about combining the housing bill and the transit station area plans bill, which would make for one behemoth of a piece of legislation!

Cameron Diehl and his staff are doing a heck of a job on this major land use bills.  Cam will really be a planner in all but name by the time he’s through with this.  Wasatch Front RC staff are really helping on this too.  So here’s some information that will be helpful if you’re interested in what’s going on behind the scenes on these major bills right now.

First, here’s a white paper (draft! Because the bill is not yet finalized) by Karson Eilers of the League staff.  Karson too is becoming a psedo-planner after dealing with all this.  He’s done great work here summarizing what will be contained in this housing bill, often referred to as SB34+, because it adds on to the moderate income housing bill from a couple of legislative sessions ago.

On station area plans, here’s the summary from yesterday’s meeting that lays out some of the main provisions of that bill.  There is ongoing discussion on this with the communities that have rail transit stations, including a big conference call today as this bill continues to evolve.

1) All cities w/FR, TRAX, or BRT (or bus hub
outside of UTA) must do a SAP
1) May use existing transit-oriented plans (e.g. Cairns in Sandy)
2) ½ mile radius for FR & TRAX (66 stations)
2) Cities must update general plan & zoning to
implement SAP in aggressive but doable
time frame
1) Exact time frame still being finalized
3) State objectives for SAP
1) Housing affordability and availability
2) Sustainable environmental conditions
3) Access to opportunities
4) Transportation choices/connectivity
4) SAP implementation
1) Stakeholder engagement
2) Current and future land use opportunities
3) Current conditions/impediments to
development
5) Incorporate SAP into SB 34+ review and req’ts
1) City plans and adopts
2) MPO review to confirm state objectives are met
3) Mandatory menu item under SB 34+ with DWS
confirmation
6) Incentives for cities that adopt SAPs
7) Increase referendum standards for SAPs and
related legislative acts (i.e. zoning)
8) State and MPO technical assistance to do SAPs

The key thing to keep in mind here is that all bills are required to be through the legislative chamber they originated in by the beginning of next week.  That means all House bills have to have had a committee hearing and then been passed by the House and sent over to the Senate by the beginning of next week, according to legislative rules.  Same thing in reverse for the Senate.  For bill that aren’t even out yet (as the major planning bills are not), that means a very compressed timeframe to get everything done.  If there are issues identified when the bills come out (and there usually are, especially with bill as big and complex as these are going to be), that doesn’t leave much time to resolve them.  So.  It’s going to be a hectic week and a half coming up.

TWO WEEKS, THAT’S ALL!

February 22, 2022

A few new bills of interest out over the holiday weekend.  They are:

HB438 – Point of the Mountain State Land Authority Amendments – this bill makes a number of operational changes and additions to this authority, including the ability to impose an energy tax and raise other revenue, bond, what funds can be used for and how, and the ability to use the Public Infrastructure District provisions (PIDs).

HB443 – Utah Inland Port Authority Amendments – a number of changes, including those anticipated reducing the number of local officials serving on the governing board.  The bill also requires the primary municipality in which the district is located (Salt Lake City in this case) to sign an agreement agreeing to “facilitate the efficient processing of land use applications, as defined in Section 10-9a-103, relating to land within a project area, including providing for at least one full-time employee as a single point of contact for the processing of those land use applications.”  Interesting.

HB445 – Homeowners Association Amendments – would require the Property Rights Ombudsman Office to hire attorneys with backgrounds in, offer opinions on, and be experts on all things HOAs!  Oh, man, oh, man, ..  HOAs are not required or administered by local governments, they are essentially private agreements.  For the PRO to have to get involved in that – can they even legally do that?  Hmm, I need to ask Jordan…

SB232 – MIDA Revisions – makes a number of essentially technical and operational changes to MIDA.  It authorizes the use of PIDs in MIDA district areas.  Here’s an interesting provision:  would make it so that Section 57-11, the Utah Uniform Land Sales Practices Act does not apply to land in MIDA districts if MIDA has done the following:

has a development review committee using at least one professional planner;
(B) enacts standards and guidelines that require approval of planning, land use, and plats, including the approval of plans for streets, culinary water, sanitary sewer, and flood control; and
(C) will have the improvements described in Subsection (11)(b)(i)(B) plus telecommunications and electricity; and
(ii) if at the time of the offer or disposition, the subdivider furnishes satisfactory assurance of completion of the improvements described in Subsection (11)(b)(i)(C).

In addition, a substitute for HB303 has come out, as promised by the League, that substantially changes the character of that (badly written) bill.  Now it would simply stipulate that for public notices required for changes to the text of land use ordinances, the notice “include a summary of the effect of the proposed modifications to the text of the zoning code designed to be understood by a lay person; and be provided to any person upon written request.”

Okay, that’s it for now.  STILL waiting for the big land use bills, and there are only two weeks left…

OKAY, WHO’S IN CHARGE HERE? BY WHAT AUTHORITY?

February 22, 2022 (Twosday! 2-22-22)

I want to talk today about state-created Authorities, which seems to be the approach we undertake in Utah for multi-jurisdictional (regional) economic and land use issues.  Examples of what I’m referring to are MIDA (Military Installation Development Authority), Point of the Mountain Land Authority, Inland Port Authority, and the proposed Utah Lake Authority.  There may be something coming for the Great Salt Lake as well, and for, well, we’ll see.

The first such entity stood up was MIDA in 2007 (full disclosure – I was Director of Davis County Community & Economic Development at the time and closely involved in the process).  The justification for the creation of MIDA was the preservation and enhancement of an important economic and jobs base for the state generally and northern Utah in particular – Hill Air Force Base.  The story behind all this is a long and complex one which would take a lot of space to tell, so let me summarize it more briefly.  Because of federal defense funding cutbacks, a number of military bases around the country were being looked at for closure.  Hill Air Force Base, which employed some 14,000 people in northern Utah directly and many more through spin-off economic effects, was in danger because it’s buildings were old and increasingly dysfunctional, and Congress was in no mood to fund new infrastructure.  An approach was instituted in another state however, which allowed for federal land on a military base to be leased to private entities for development of associated new buildings and facilities that were then leased to the defense department for military use.  HAFB had lots of vacant land adjacent to existing communities in Davis and Weber counties that could serve such a purpose, where the adjacent cities could provide the necessary municipal services for new development like water, sewer, building permitting and inspection, police and fire and so on.  But the area was spread among at least four different cities, and finding the funding and sophistication for negotiating three-way contracts, leases and financing was a daunting specter.

So, with the support of local and state officials, the state legislature declared that there was a compelling state-wide public interest in preserving and enhancing this significant economic base and created MIDA.  This Authority included the ability to contract, raise tax revenue, and have land use authority.  The actual needed municipal services would be provided by the adjacent cities through agreements with MIDA, for which they would receive funds from MIDA.  The model established was a governing board that included state officials and local representatives from the involved local governments.

The venture has worked out quite well, with leases and agreements worked out between the federal government (owners of the land), local governments for services, and private developers to build the needed facilities.  Falcon Hillhttps://www.woodburycorp.com/portfolio/falconhill/ with Woodbury as the main developer is been taking shape for several years now.

Since I focus on planning and land use issues, I want to focus on that aspect of this approach in dealing with such regional issues.  Because of the situation in this instance, where the land was federally owned and thus not subject to local land use regulation at all, and the area in consideration was adjacent to four different cities, in two different counties, it made some sense for this state-created entity to have land use authority.  Including officials from the involved local entities on the MIDA governing board also assured that there would be local input on what was ultimately developed and how.  It was not a perfect model from the outset – the MIDA provisions were tweaked just about every year by the state legislature.  And there may have been other ways to deal with this.  Certainly there were rough spots, with federal, state and local officials having to work out concerns and differences.  But overall, it has accomplished what was intended at the outset.

The model was then applied to other similar situations.  When the National Security Agency was looking around nationally for a site for its new super computing center, it settled on building it in Bluffdale, again on federal land (Camp Williams) with locally provided infrastructure and services, again all coordinated through MIDA https://archive.sltrib.com/article.php?id=51391693&itype=CMSID.  The state legislature authorized this new use of MIDA as a state-wide interest in bringing the economic benefit of such a nationally significant facility to the state.

When the decision was made to close the existing state prison and build a new one at a new location, the question arose of what to do with the approximately 700-acre old prison site.  Again, it was viewed by the legislature that this could be a project of significant statewide interest (all of downtown Salt Lake City, for example, is encompassed within an area of around 700 acres, depending on where you draw the boundaries).  The legislature, after study and recommendations by a state commission,  thus created the Point of the Mountain Land Authority.  While the prison property is located within Draper City, it is entirely state-owned and thus not subject to local land use authority.  The Point authority retained this land use control, and local officials were again included on the authority governing board. https://thepointutah.org/

The characteristic of using such authorities for development of government-owned land began to change, though, when MIDA was brought in to assist in the relocation of the Hillhaus, a defense department-owned military recreation lodging facility at Snowbasin ski resort which was subsumed into the Olympic facilities for the 2002 winter games.  The promise was that the lodge would be relocated elsewhere, and eventually federal and state officials agreed that MIDA would be the best way to accomplish this.  A site was located near Park City on federal property, but again through a long and complicated process, things evolved to the point where there is now a major new ski resort underway by a private developer under the auspices of MIDA which helped make the financing more feasible, and again subsumed local land use control.  Only this time, the land use control involved not just government-owned property, but substantial privately owned property as well.  Long story made short, this caused some issues with the local entity that normally would have that authority (Wasatch County), and it was a complicated and controversial workout (a local official has been allowed to sit on the MIDA governing body of this project, though). https://www.standard.net/hilltop-news/2021/jun/17/mwr-hotel-construction-project-officially-underway/

Arguably the most controversial use of this Authority approach has been the Inland Port Authority, located west of the Salt Lake International Airport, in Salt Lake City.  The statewide interest identified by the legislature is the establishment of a significant economic benefit with a rail freight transfer facility and associated development that would occur.  Part of the state justification for involvement in this proposal is to take advantage of the significant infrastructure that state has paid to have put in this area for the new state prison, located just to the west of the inland port area.  Almost all of the property involved in this one, however, is privately owned, and thus would normally fall under SLC’s land use authority.  There has been plenty of controversy over this project, including over the land use authority, taxing and revenue authority, and so on. The controversy here is also enhanced, in my opinion, because this project is located in SLC, which has a level of politics and issues that don’t generally exist elsewhere in the state.  This one is still playing out, and there are bills in the legislature this session to make more changes to the Inland Port Authority, including to the composition of its board membership (reducing local government involvement). https://www.sltrib.com/news/politics/2022/02/22/slc-would-lose-seats/

The Authority trend is continuing with the proposed Utah Lake Authority, a bill which is pending in this year’s legislative session (see previous posts).  The statewide purpose for this one is the environmental rehabilitation of Utah Lake, considered a statewide resource.  Again, controversy surrounds the discussions about what to do and how to do it, most notably about a proposal by a private entity to dredge the entire lake bed making it deeper, using the dredged material to create new island in the lake, and building new communities on some of the islands.  The lake bed itself is sovereign state land, so here we have the issue of the state retaining land use control over state lands, which the Authority would have, and thus be responsible for whether and how any such islands, if they are created, would be developed.  The Utah Lake Authority bill was originally proposed in last year’s legislative session, and that one would have given the Authority jurisdiction over some of the lands adjacent to the lakeshore, which caused a lot of concerns and ultimately put the bill on hold until this year’s session.  The bill currently gives the Authority jurisdiction over only the lakebed sovereign lands.  We’ll see how this all works out, and it’s an important one to watch for this reason. https://www.deseret.com/utah/2022/2/12/22925651/utah-lake-islands-project-pushback-lawmakers-utah-county-towns-lake-restoration-vineyard

How else might this Authority concept be used in the future?  Perhaps for preservation of the Great Salt Lake, which might extend throughout the entire GSL watershed?  How about for housing affordability?  An idea has actually been floated that the state legislature would find a compelling statewide beneficial public interest in enhancing housing affordability, and instead of doing the zoning reform thing that many other states are now doing, instead create a housing affordability authority, that could then find private entities willing to build more “affordable” housing if the conditions (i.e., the local land use regulations) were more conducive, and then legislatively create an area where the authority would have jurisdiction, overriding local controls.  There’s both merit and danger in such an approach, one that would surely engender a lot of controversy and debate.

Well. I’ve beat this horse to death, and all for something that may not ever really be a concern.  Or…?

COME ON IN, THE WATER’S FINE…

February 18, 2022

A couple of more minor bills of interest out yesterday.

HB429 – Great Salt Lake Amendments would require the Division of Water Resources to develop the Great Salt Lake Watershed Integrated Water Assessment, with the end goal being to enhance water flow to the GSL.  The guidance in the bill is for the Division to develop and implement an integrated surface and ground water assessment for the Great Salt Lake watershed. This includes assessing and forecasting the quantity of water available for human, agricultural, economic development, and environmental or instream uses, and ecological needs.  More specifically, the Assessment is to identify and evaluate best management practices that may be used to provide a reliable water supply that accommodates anticipated growth and economic development, and provides adequate flow to sustain the Great Salt Lake and the Great Salt Lake’s wetlands.  Wow, sounds like a really big planning project!

HB435 – Mining Regulation Amendments would change, for “small mining operations” as defined in state code, the exemption for such operations from having to provide a notice of intention to commence operations, which includes a detailed reclamation plan, and require the state division to publish its review of the notice before allowing operations to commence.  The change would say that small mining operations in first and second class counties are not exempt from these notice of intention requirements.  This appears to have been prompted by the recent surprise revelation of a new mining operation about to get underway in Parley’s Canyon just outside Salt Lake City, which caused a lot of outcry.

SB225 – Farmlands Assessment Act Amendments would exempt areas that are being taken out of “greenbelt” from the rollback taxes normally required, if the area will not be developed.  This bill even allows for carving out portions of the land that will be open space or undeveloped as part of a larger piece that is going to be developed.

Okay, I also wanted to write just a little about a bigger overall issue that is sort of “looming” over this legislative session, and that has to do with water.  Our recent drought conditions coupled with the state’s strong growth rate seem to have brought this issue of water more to the top of everyone’s agenda.  I’ve heard more about it in the last few months than throughout much of my career.  As Craig Call and I have been conducting land use training seminars the last several weeks, in just about every one of those sessions, the question of water to accommodate growth has come up.  Many of those questions have been if a community can curtail or even stop growth if it looks like there isn’t enough water available. I know of several communities that are considering curtailing the approval of new development because of their concerns about local water supply, and a few have even already done so.

Water concerns are reflected in this legislative session with a flurry of bills proposed to deal with everything from water-wise landscaping, metering for secondary water, dealing with water rights, state water plans, and even how to get more water to the Great Salt Lake (see above).

One of the bills on this topic of particular interest to planners is SB110 – Water As Part of General Plan.  This bill passed in the Senate with no negative votes, and is being heard in a House committee this morning.  Everyone appears to support this bill.  And, in my opinion, it deserves support.  The bill would add to the list of elements that are required as part of a community General Plan “a water use and preservation element.”  This is added to the other elements that are required, which are land use, transportation and traffic circulation, and moderate income housing.

No beefs with requiring this element in community General Plans, particularly with this becoming such a big topic in growth at the local level, as I noted earlier.  But planners and elected officials need to be aware of the burden, or maybe that’s not the right word, the responsibility it places on communities to comply with this requirement.

The older required elements in the General Plan section of LUDMA, land use and transportation, were quite general in their description of what was to be considered, leaving a fair amount of discretion and flexibility to local officials on how to address them and what to consider.  When the moderate income housing requirement was added a few years ago, it was more detailed and required certain information to be compiled and things to be considered.  That has caused some issues recently as the information to be used apparently has been found to not be as accurate or detailed as needed to accomplish the requirements of the code.  There have been other issues as well.

The proposed required water element is way more specific in what is to be considered and included than anything else in the code currently.  It is so detailed and so specific, and so voluminous, if I can say that, that I think some smaller jurisdictions particularly will have a hard time accomplishing all that is required, at least not without an expenditure of some significant funding to get that work done.  I’m not saying that this information and planning isn’t of value, and perhaps even needed, but the level of specificity and detail that’s needed for such a plan may vary by locality depending on their situation with water.  It’s an interesting approach to local land use planning as envisioned in our state code that is just different from how it has been.

Here’re just a couple of examples.  The bill language requires coordination of the water element with the land use element, to the level of detail of different categories of proposed land use.  The water element is to be:

coordinated to integrate the land use element with the water use and preservation element; and account for the effect of land use categories and land uses on water demand.

The bill goes on to say that the element is to address:

          (A) the effect of permitted development or patterns of development on water demand and water infrastructure;
(B) methods of reducing water demand and per capita consumption for future development;
(C) methods of reducing water demand and per capita consumption for existing
development; and
(D) opportunities for the municipality to modify the municipality’s operations to eliminate practices or conditions that waste water.

The bill then provides a rather long list of information, concepts and policies that are to be considered in preparing the water element.  This really could be considered the planners’ full employment act, there’s a lot to consider here.  Well.  I’ve made my point.  I’m not arguing against it, just sending up a flag of notice – look out for what’s coming.  We will definitely need to be educating local officials about this requirement, particularly since it is required to be done by December 31, 2025.

Oh, and about the “required” thing?  General plans in the state of Utah are not compulsory for local governments to follow – they are advisory.  That’s not necessarily a negative, but…  all that work, and in the end, what does it mean?  At the least, it will mean local officials should be more educated about what the problems are and how to deal with them.  But… not required, which I get the impression is what state officials were hoping for here.  We shall see.

SAY WHAT?

February 17, 2022

A couple of bills out yesterday that are more, shall we say, interesting and impactful.

The interesting one first.  House Speaker Brad Wilson is the sponsor (it is unusual for the Speaker or Senate President to actually be the sponsor of a bill – when they are, it usually signals an issue of particular importance) of HB410 – Great Salt Lake Watershed Enhancement.  Concern over the rapidly diminishing nature of the Great Salt Lake has become a top of the list issue for state leaders in the past year or so, as noted earlier.  Legislators even took an aerial tour https://www.deseret.com/utah/2022/2/15/22935079/utah-lawmakers-get-aerial-tour-of-great-salt-lake-drought-science-saline-lake-politics-environment in the last few days to see what is happening to the lake.  Speaker Wilson sponsored a conference not long ago about the GSL  https://www.youtube.com/watch?v=fEFKZVw1kvw, so it is no surprise to see this bill.  The bill sets up a GSL watershed enhancement program, primarily to acquire water rights specifically for the lake itself.  This is noted as being a first step, with others sure to follow.

The next bill definitely falls into the category of being “impactful”, so much so it’s hard to take seriously.  Rep. Val Peterson, he who is also the sponsor of HB303 – Downzoning Notice Amendments, which we panned in an earlier post (February 3), yesterday unveiled HB416 – Property Rights Ombudsman Amendments.  All I can say is, Wow!  This bill would require the Ombudsman’s Office, every year, to conduct a review of every local government’s land use ordinances, policies, and written actions on land use issues for compliance with state requirements, and to issue a report on such by October 1 every year.  The written actions to be reviewed include emails, citations and written minutes.  Can you say, land use police?  What would such an undertaking require?  I can’t wait to see the fiscal note on this one!  The bill would also allow any person to request an advisory opinion, not just from the PRO, but from “a neutral third party” to determine if a local government’s ordinance, policy or action is inconsistent with state law.  It also provides that if a local government doesn’t cure the offending ordinance, policy or action within 30 days of the issuance of the advisory opinion, a court can award attorneys fees to the requester.  So that would mean a local government would have to do what the advisory opinion says even if they disagreed with it, or risk having to pay attorneys fees.  I talked with the current PRO, he had no idea this bill was coming.

In my posts from the last couple of days, I paid especial kudos to a state legislator who is very much persuaded that cooperation with local officials is more likely to produce workable and feasible solutions, Rep. Waldrip.  I’m sorry to say, Rep. V. Peterson, with this bill and HB303, appears to be the polar opposite. ☹

By the way, HB303 was voted favorably(!) out of committee yesterday, but League staff assure us that amendments to this bill that will make it “better”(?) are coming.  We shall see.

IT’S NOT WHAT YOU DO, IT’S HOW YOU DO IT!

February 16, 2022

Well, what you do matters too.  More on that in a minute.

Only one new minor bill out yesterday, HB407 – Short-Term Rental Enforcement Amendments.  This is another marker in the increasing “clamor” from local officials to do something about regulation of short-term rentals.  This one is not targeted specifically at ADUs as some of the other proposals have been, but does put language into the code specifically allowing local governments to regulate short-term rentals.  The current code does not prohibit local regulation of STRs, so this bill doesn’t really seem to change anything.  A couple of years ago there was a pretty concerted effort by the STR industry to get the legislature to prohibit local regulation of STRs, which as you can imagine the local governments fought pretty strongly.  The compromise bill that was eventually passed just prohibits locals from using on-line advertising of STRs as the sole basis for enforcing against unauthorized STRs.  This bill doesn’t really change that provision either, so I’m not sure what this bill really accomplishes.  Ah, well.

Yesterday I posted about Rep. Steve Waldrip and his comments that his goal is not to have the state pre-empt local land use authority like is happening in many other states in the zoning reform wave that is sweeping around the country, but to instead find ways for the state and locals to cooperate to achieve needed changes in the land use regulation process for broader public benefit.  I’ve posted on this approach previously (see January 25), supporting such an approach (which is advocated by Rep. Waldrip and League Exec Director Cam Diehl) as the best way to actually make it work.  Too often, as the January 25 post demonstrates, top-down zoning reform approaches don’t work because of the lack of buy-in from local officials and citizens who then find ways to subvert them.

Today, James Brasuell, editor of the Planetizen website, shows us the “ultimate” expression of such lack of support and cooperation of top-down zoning reform – the citizen referendum.  There are apparently a number of efforts now underway in California and other places by citizen groups and even local elected officials to put referenda on the ballot to overturn state legislative-adopted zoning reform measures.  A couple of excerpts from Brasuell’s posting:

Enter the “Our Neighborhood Voices” ballot initiative. Instead of relying on regulatory gymnastics to circumnavigate the state’s new zoning mandates, the ballot initiative would allow local governments to simply opt out. So far, the ballot initiative is finding support from local governments and regional planning organizations alike. The city council of Chino Hills, a city located on the western edge of San Bernardino County, along the border with Los Angeles County, recently voted unanimously to support the initiative. The Southern California Association of Governments (SCAG) in January rejected a motion to stay neutral on the initiative, and instead voted, 32 to 12, to back the initiative.

While California and Oregon were the first state to risk “fed up” citizens by passing statewide zoning reforms , and are thus providing the model for how to respond to inevitable local resistance, other states legislatures, like in New York, Arizona, and Washington will this year consider legislation that would similarly preempt local zoning laws and potentially set the stage for more ballot initiative showdowns.

The collateral damage in so many political battles could be yet another step back for the legal power of the planning profession. Until the fundamentals of the market change—whether through action or inaction—power struggles and political controversies will continue. If ballot initiatives like Our Neighborhood Voices succeed, citizens, not planners, will increasingly set the policy parameters that shape the build environment of the future.

Take a look at James Brasuell’s piece, it is a most interesting lesson in how to approach policy.

THE WAVE BREAKS?

February 15, 2022

I’ve posted several times previously about the “wave” of zoning reform sweeping the country, warning that Utah may well be engulfed by that very wave, maybe in stages but surely altogether.  The wave continues to roll, as legislative action moves forward in New York, and now even right next door in Arizona.  The effectiveness of such measures may be rather less than hoped for, though, as we’ve also noted in studies and stories cited in previous posts, like yesterday’s post citing a UCLA paper that warns if reform isn’t substantial in scale, it likely won’t be effective (go big or go home, in other words). This truism may be reflected in a story about Salt Lake City’s slow uptake of ADUs.

However, we have our own little Dutch boy putting his finger in the hole in the dike to stem the wave here in Utah in Rep. Steve Waldrip (if you’ve met Rep. Waldrip, you know my characterization of him as “little” is sardonic – he’s a tall man!).  Rep. Waldrip, as I’ve accused him of before, is well on his way to becoming an honorary planner.  He is truly a policy wonk and has taught himself a lot about planning issues and policy approaches.  This is not really surprising, as he has been a Planning Commissioner (Weber County) and is currently co-chair of the Commission on Housing Affordability.  He talks cogently about things like regional fair share of affordable housing and the principles of smart growth (tying state infrastructure funding to conformance with growth policies).  He is carrying all of the major planning bills we’re awaiting (well, not sure about the station area plans bill), making himself the go-to guy at the legislature for land use stuff.

At yesterday’s League Legislative Policy Committee meeting, Rep. Waldrip talked generally about the bills he’s working on in cooperation with the League and others.  His main message was that he is not interested in having the state dictate zoning policy to local governments, rather he wants it to be a cooperative venture where state and local officials can work together to craft approaches that will address the main concerns (like housing affordability) and do it in such a way that there will be a better chance of implementation and success.  So kudos to him for his interest and his substantial efforts, and maybe breaking the wave before it gets to Utah.  Cam Diehl, the League’s executive director, noted in the meeting yesterday that he’s spent more time talking legislation with Rep. Waldrip this session than with any other legislators.  So it looks like Cam is becoming a planner wonk as well (I can vouch for this, having talked with Cam on planning issues several times over the past couple of years and I can say he really is getting into this stuff).

Funny what strong growth can do among our political caste!  Here’s hoping we get to see the bills soon!

MONDAY, MONDAY

February 14, 2022

Monday of week 5 of the Utah legislative session, and Happy Valentine’s Day!  Only one bill of relative interest out just before the weekend, not one of the biggies we are waiting for (how many times can I say that?).  This one is HB379 – Association of Governments Amendments, which basically creates a vehicle to funnel the anticipated money for planning assistance and other things through the AOGs around the state.  That’s it.

A couple of other interesting politics-related planning items that showed up in the news over the weekend.  First, more on Utah Lake which is becoming more and more of a big deal.  This may eventually frame how we approach regional issues in the future, so this one is worth continuing to watch.  Next, we have some more about transportation for Little Cottonwood Canyon in the form of a legislative resolution sponsored by Sen. Jake Anderegg.  Can I just say, for someone who started out in the legislature as pretty much a super-conservative anti-planning guy, as he’s gotten more and more involved in growth and planning issues, he has EVOLVED?  Pretty much supports good planning now (amazing what a little exposure to the issues and trying to deal with them can do to someone…).

So while we’re waiting for those big planning bills, here’s something interesting.  This is from a professor at the UCLA Lewis Center for Regional Policy Studies, Shane Phillips.  To call it a study is not right, it’s more of a thought experiment (you know, like what Albert Einstein would do which led him to come up with the Theory of Relativity…), but it’s well thought-out and leads to some interesting ideas.  Essentially what Prof. Phillips says is that communities, way back in the dark past, used to have land use regulations in place that allowed for lots of growth and development.  The pace of growth was much slower than the potential might have allowed for, and as such there was no artificial market created that drove up land values.  Since most communities switched to predominant restrictive single-family zoning, the availability of land for future growth has been much more limited which eventually has led to rapidly rising land values (because the market is constrained).  He goes on to say that various ways to deal with this, like value capture through things like inclusionary zoning have some limited benefit but not really that much.  The way to deal with it, he says, is to broadly rezone property in communities to allow for more density, and not just a little like three- and four-plexes, but for moderate three- and four-story buildings.  The broad availability of such land will mean that no particular property owner can capitalize on his/her advantage and drive up land prices.  It’s a cogent argument, but, as one who follows the politics of land use closely, I immediately thought, “right, good luck getting cities to broadly rezone like that,” and Prof. Phillips acknowledges that reality.  What it also means, though, is that these big zoning reform efforts underway in various states and locations will likely not produce much reduction in the cost of housing because they’re just too limited.  Here’s a couple of excerpts from his paper:

While ambitious, broad upzoning does have important selling points that could ease its adoption. For one, it benefits both market-rate and income-restricted housing developers, reducing costs and eliminating the perceived competition over available land between the two groups. Broad upzoning favors small-scale developers — the builders of “missing middle housing” who are more popular with the public than their larger, wealthier, more politically connected peers. Missing middle housing itself, such as courtyard apartments and three- and four-story apartment buildings, is also more welcome in many places than taller, denser developments. Renters and homebuyers across the housing market also benefit from broad upzoning, far outnumbering the windfall recipients and housing lottery winners who benefit from our current approach.

Finally, I must acknowledge the political challenge of broad upzones. This approach may be more effective at promoting affordability than the alternatives of windfall- and value capture-based zoning reforms, but its effectiveness is also its greatest political vulnerability.

It’s worth the read and some thought.

THE TRANSIT STATION LABORATORY

February 11, 2022

Once again, only a relatively minor land use-related bill shows its face, while the biggies continue to be out of sight.

Yesterday, we saw HB372 – Short-Term Property Rental Act appear.  This is a short bill, one that was anticipated as we reported in an earlier posting because of residents’ concerns about ADUs becoming short-term rentals.  The bill provides that a local jurisdiction can by ordinance prohibit the offer of housing for short-term rental on a short-term rental website if it is not in an area that is authorized by local ordinance for short-term rentals.  It appears to me this is trying to give a cause for enforcement action to such unauthorized STRs because in the STR bill passed by the legislature a couple of years ago, it stated that advertising an STR on-line could not be the sole cause of action for enforcement against such facilities.  Okay.  We’ll see if this works.

On another topic related to the more anticipated bigger land use bills, it became more obvious to me that there is a lot of behind-the-scenes “open” discussion going on over the station area planning requirements bill.  A number of our local government friends have been involved in this as the bill becomes more and more a vehicle to achieve an “easy” win on the housing affordability issue.  Everybody thinks that higher housing densities and mixed use belong around fixed-rail transit stations, right?  This approach has been used in a number of places around the country lately – take a look at such moves in California (and some more California), Massachusetts, Washington State, Toronto, Montgomery County, and many other places.  The common factor here is that areas around transit stations are viewed as the place to start with allowing more housing and more kinds of housing.  That issue is now playing out here in Utah as well.  As I said, we’re hearing about lots of talk ongoing.  There are lots of interesting issues playing into this, including if there should be minimum density levels, and since such development can serve an area that includes more than one community, how would a potential referendum be handled?  Can’t wait to see what the bill finally says.

PRESSURES GROW…

February 9, 2022

Still nothing showing up on the major land use bills we are waiting for, but plenty of behind-the-scenes talk and discussion going on about them.  Just waiting…

Utah Lake continues to grow as an issue at the legislature this year.  Some legislators are apparently having second thoughts about making it easier in the past to transfer ownership of lakebed land to private interests, and this has prompted some clashes in committee meetings and in demonstrations held by citizens at the Capitol.  Here’s a news story outlining what’s happening, at least in part.  There’s other stuff happening too, like the suit-countersuit folly going on in the courts.  Stay tuned…

Another land use-related issue is starting to show its head again – homeless shelters.  In this case, it has to do with temporary shelters, to handle wintertime need to house overflow numbers.  Interestingly enough, Craig Call and I got a question about this very topic – can the state override local land use regulations to allow homeless shelters – in last night’s land use seminar in Taylorsville.  You may recall a few years ago the issue of locating and building new homeless shelters in dispersed locations became a big controversy, in part, of course, because no one wants one.  The legislature eventually stepped in and passed bills stipulating where and how such facilities would be located, overriding much of the local regulatory authority.  Apparently the same issue is cropping up again this year, over temporary facilities intended to relieve pressure on the permanent facilities during winter months.  Here’s a story about this issue.  Relevant to the land use topics we discuss in this blog, here’s a couple of clips from the story:

…local resistance to these new shelters has been such a persistent problem that a leader in the Coalition to End Homelessness wonders if top-down pressure from the state might ultimately be necessary to make progress. …

Hill says the coalition has a “shortlist” of potential sites for a shelter specifically targeted to older or medically frail people.

To advance much further with the plan, though, providers will need the local approvals for a facility like this, and Hill has her doubts that one will step forward voluntarily.

“My fear is we’re going to need legislation to make that actually work,” she said. “Because getting through zoning processes in areas where no one really wants to see these facilities … we’ve experienced that many times.”

Oregon’s legislators last year passed a bill removing local land use barriers that made it difficult to open homeless shelters in the state, so Hill said her suggestion isn’t unprecedented.

Hill says advocates aren’t pushing Utah lawmakers to pass such a bill just yet — but they do want to pick a facility by sometime this summer and are hoping for a breakthrough soon in their conversations with Salt Lake County cities.

SLOW DAY

February 8, 2022

Not much to report today on the legislative front.  Some interesting insights came from the League’s Legislative Policy Committee meeting yesterday that are of interest.  Most notably, there is considerably back and forth going on between municipal representatives and House Majority Leader Mike Schultz over his HB151 – Retail Facility Incentive Payments Amendments bill, which on it’s face would pretty much prohibit any local financial incentives for retail developments.  The debating is around things like what kinds of projects to exempt, places to exempt, and so on and so on.  It will be interesting to see how this bill finally ends up.

There’s also a lot of discussion about the much-talked-about Station Area Planning bill going on in meetings.  Lots of municipal folks involved in this one.  Waiting for it to get the nod and come out.

There was discussion about some other behind-the-scenes things being talked about, including the idea that the state may create a land use authority (not as defined in LUDMA!) similar to MIDA, which could upon finding that there is a state need for certain land uses (like housing affordability) impose it’s own land use regulations in certain places, overriding local regulation.  It was mentioned as an idea prior to the legislative session.  As you might imagine, that concept was just blasted by local officials, but it doesn’t seem to have gone completely away.  That might be what’s in store for the bill file that Rep. Schultz has open titled Regional Development and Logistics Amendments.  I kind of don’t think there will be a serious effort for this, but stranger things have happened in the legislature over the years I’ve been watching it, so…

One kind of interesting bill that did pop out yesterday, HB343 – Water Supply Amendments, which deals mostly with how municipal water systems deal with providing water in areas outside their boundaries.  There’s language in there about how water may need to be supplied to approved subdivisions and how, and so on.  Take a look, it may affect what you do and how water may need to be considered in new development/subdivision proposals.

WEEK 4 BEGINS – ONLY 4 REMAIN!

February 7, 2022

Week 4 of the legislative session gets underway today. A couple of new bills of interest came out late Friday.

HB327 – Airport Land Use Amendments has been talked about for a while because of conflicts that arise between existing airports that are located in one jurisdiction but owned by another – for example, Salt Lake City owns airports, besides the big SLC International, in West Jordan and Tooele.  The bill makes some modifications to the Airport Zoning Act in state code to try to encourage (a word that is used in the new amendments several times) and accommodate better coordination and cooperation for protection of airports and land use around them.  There have been some conflicts, prompting this bill.

The other bill of interest is HB322 – Public Transit Capital Facilities Modifications.  Here are a couple of new stories from the DesNews and Trib that describe what this bill does.

And Utah Lake continues to stir up lots of churn.  Here’s an opinion piece by a member of the Provo City Council on the current controversies about how to “improve” the lake.  To underline the level of interest in this, the League will be holding a short meeting right after their LPC meeting today at the Capitol about HB232 – Utah Lake Authority, for all those interested in this issue (more and more as time goes on!)

WHAT MAY COME?

February 4, 2022

Still no sign of the big land use bills we are waiting for.

However, there are some interesting bills that have been requested, some in just the last few days.  Here are the bill request titles that I found and what, if anything, we know about them.

Digital Billboard Amendments – no surprise about this popping up, given what may happen with billboards upon the ruling by the U.S. Supreme Court later this year.

Zoning Plan Amendments – not sure what this is about.  Requested by Rep. Mike Kohler.

Local Agricultural Land Use Regulations – not sure about this one either.  Requested by Rep. Joel Ferry

Municipal and County Land Use and Development Revisions – the much anticipated land use task force bill, being carried by Rep. Steve Waldrip

Utah Housing Affordability Amendments – the also anticipated housing affordability changes much debated and talked about, also carried by Rep Waldrip

Housing Availability and Development Amendments – by Rep. Ferry, ???

Airport Land Use Amendments – also a big blank for me, Rep. Ballard requesting

Regional Development and Logistics Amendments – hmmm, interesting title, might relate to tying state funding to conformity with regional transportation plans, but this is being requested by Rep. Mike Schultz and that’s not been one of his big issues

Transportation Revisions – Sen Harper asking for this one, may have to do with provisions for Transit Station planning which is in the works, just haven’t seen another bill title that would specifically relate to this.

So, stay tuned, plenty still could happen.

HERE WE GO

February 3, 2022

At last, a couple of significant planning bills came out yesterday, though they were not the ones we’ve been waiting for.  Again, we’re getting bills that have not been vetted through the land use task force.  Not unexpected, but disappointing that the process to avoid clashes and conflict over land use is being bypassed (seems to fit with the political climate of the day).

Most notable is HB303 – Downzoning Notice Amendments – rather a mess of a bill (editorial comment).  This bill would require that notice must be given to all affected property owners of any proposed change to land use regulations at least 30 days in advance.  Currently the code only requires notice to individual property owners in proposed rezones, 10 days in advance.  The purpose of this notice is then to allow any property owner opportunity to file an application for approval under current land use provisions before any proposed changes are allowed to move forward.

This proposed bill is clearly aimed at allowing property owners to avoid the changes that may come from a proposed downzone.  I’ve picked up word that this bill was specifically triggered by a proposed action in a Wasatch Front community, which has since been resolved, but that hasn’t stopped this proposal from moving ahead anyway.  I’ve also heard rumors that the original intent for this bill was to do something similar to what was passed by initiative in Arizona in 2006 which requires local governments to compensate property owners for loss of value when property is downzoned, but cooler heads prevailed with the current moderated language in this bill.

This bill would substantially change the vested rights and pending ordinance provisions that have been in place in Utah for a considerable time now and which has seemed to work reasonably well.  That’s not to say that current rules and practices should always remain in place just because, but making such substantial changes to such rules ought to be carefully considered and discussed to ferret out the merits and shortfalls.  None of that has happened with this bill.

Here’s an insightful critique of the bill as written by a credible Utah land use attorney who is well-versed in current land use law practices:

It is overly broad, fails to amend the pending ordinance doctrine in the other sections of the code, amends only the city code and not the county version, and is otherwise impractical.  It casts such a wide net that cities would at times be required to notify everyone of every change in the general regulations and everyone in the zone if only one zone is affected.  It does not say, for example, that the person can file a notice related to an application that would otherwise be affected or prohibited by the proposed change, but that if the property owner received a notice then he or she cannot file any application at all – even if not affected by the change – without a notice being filed as well.  It is problematic that it says that the owners who received the notice can attempt to exempt themselves – but only if they received it.  Whether or not the city mailed it is immaterial.

Another interesting bill out yesterday is HB305 – Natural Resource Revisions.  It makes some pretty sweeping changes to the state administrative structure for agencies dealing with outdoor recreation and for open space and agricultural land conservation.  It creates a new Division of Conservation in the Department of Agriculture and Food.  Most notably the bill does away with the Quality Growth Commission but reconstitutes it as the Land Conservation Board which will continue with all the duties of reviewing applications for land conservation, and none of the growth planning policy duties.  One provision in the bill I question is where the bill requires that funding for proposals for land conservation must be consented to by the local county land use authority.  I’m not sure that the drafters of the bill understand that a LUA is a administrative body, not a policy or legislative one.  As such, it is not the county governing body, but could be a planning commission, another body, or even a staff person.  If their intent is to get the blessing of the elected officials, that should be made more explicit.  Alternatively, the county governing body has the option to designate land use authorities for various processes, so it could designate itself as the LUA for these types of conservation applications, but this would require some education of everyone involved.

Okay, enough for today.  More fun to come, no doubt!

ADU TOO

February 2, 2022 (2-2-22!!)

Still none of the expected big planning bills out yet.

ADUs (accessory dwelling units) continue to be points of contention in a number of communities since the passage of HB82 in last year’s legislative session.  Anecdotally I’ve heard several comments from different communities about them, not necessarily against them, but concerns about how they get implemented and what is done with them.  The biggest share of concerns seem to center around such units becoming short-term rentals (and associated with that, requiring that the homeowner live in either the main home or the ADU).  I just got a question about that very thing in a meeting last night.

To the topic, here’s a story about a meeting by Cottonwood Heights officials with their area legislators to talk about a number of issues, including ADUs.  Here’s a clip:

A majority of the 24 residents who attended the open house inquired about ADUs (Accessory Dwelling Units) and short-term rentals. Last year, the state legislature passed bill (HB 82) allowing ADUs in single-family zones. Cities throughout the state were required to update their zoning laws accordingly.

“We are creating the problem we tried to solve,” Reibe said. “(ADUs) are starting to be Airbnbs and short-term rentals. That was not the intention.”

Instead, the intention was to help provide solutions to the housing crisis in Utah. Both legislators mentioned their concern.

“Summit County is 70% vacant,” said Bennion, meaning 70% of the housing available within Summit County is used for short-term rentals or second homes.

“Moab is at least 15% vacant,” Reibe echoed. “We have to find more solutions.”

Both Bennion and Reibe shared that over 40% of the members of the Utah legislature are involved in real estate in some way.

They also mentioned they will be supporting a bill sponsored by Rep. Carol Spackman Moss (District 37) to alter the enforcement protocol for ADUs.

Rep. Moss does indeed have a bill file open for an ADU-related topic, so we will wait to see what comes of it.  In my opinion, ADUs are an excellent way to help address the housing issues in our state and it would be a real shame to see much curtailment of their availability.

ON THE ONE HAND, THEN ON THE OTHER HAND…

January 31, 2022

A couple of interesting surveys on growth and development that came out in the past week that I want to point out a few things about.

The first is the third installment of the Utah Foundation’s “Missing Middle” report, which gives the results of a survey about Utahn’s preferred and acceptable housing development.  The second is a survey conducted by Envision Utah survey which describes, among other things, Utahn’s attitudes towards growth. Viewed in the light of the housing affordability crisis, there’s some good news, but maybe not really given the realities of local government politics.

First, the Utah Foundation survey, titled Utahn’s Housing Preferences.  Lots of interesting information in this survey, which to no one’s surprise indicates that state residents overwhelmingly say single-family homes are their preferred style of new housing development.  As current data points out, cost trends make it obvious that this style of housing is increasingly less affordable, becoming out of reach to a substantial majority of those seeking new homes, especially first-time homebuyers.

However, there is some hope that seems to be indicated in the Utah Foundation survey, as expressed in a piece by Foundation President Peter Reichard.  He says in part,

Most survey respondents (60%) support more affordable housing options in their neighborhoods, with 38% strongly supporting more options. To address affordability issues, about 46% of survey respondents would accept middle housing in their neighborhoods. But Utahns are generally not fond of having apartment complexes nearby. In other words, there is the possibility of bringing in a wider variety of housing units, even within existing neighborhoods, but it should harmonize with the neighborhoods.

That sounds really good!  But then I read what’s in the Envision Utah survey, in which Utahns are not so thrilled about new growth of any kind.  From a Deseret News story:

A survey conducted by Envision Utah found that many Utahns aren’t excited about the population boom. About 42% of respondents think future growth will make the state worse — 13% said “a lot worse,” and 30% said “a little worse.”

…the survey points to an increasing number of Utahns who say not only is growth bad, but it should be stopped. That sentiment can sometimes result in opposition toward zoning measures and loosened regulations that, as the governor says, would “increase supply.”

Roughly 23% of respondents say growth jeopardizes the quality of life and that the state and its residents should try to stop or slow the influx of people.

“This was concerning to us. This is not something we’ve seen before,” said Jason Brown with Envision Utah. …

Some of the perceived negative consequences of growth are the increasing costs of housing and housing shortages…

So in other words, it’s the unwanted growth that is causing the crisis in housing affordability.  Well, in the real world, it’s not very possible to stop growth, unless of course there’s no place for these new wanna-be Utah residents to live  So – no build, no growth!  And how does such a policy express itself?  Sky-high costs for housing.

But wait, didn’t we just see in the Utah Foundation study that Utahns are willing to accept middle-missing housing?  Well, maybe so, if they’re okay with new growth (which according to the EU survey many are not).  And, of course this is according to a statistically valid survey.  But I ask you, do we get statistically valid cross-sections of citizens who show up to local council meetings where new housing developments are proposed?

There’s plenty of anecdotal and even statistically valid research that indicates that local land use policies are primarily driven by the owners of single-family homes who show up to those meetings and get elected to city council seats. And, as the EU survey shows, many of these folks think we should try to stop growth.  So, does “missing middle” housing, which appears to be more and more necessary to address the affordability issue, really have a chance?  Hmmm….

WEEK 2 ENDS

January 28, 2022

Just about two weeks into the legislative session and still waiting to see some of the major land use bills that have been talked about forever.  Today is the last day any new bills can be requested, so any pending legislation will have to appear in one of the bills already listed as being in progress.  When those will come out, though…

Though I titled this as week 2 ends, some more bills may pop out later today, in which case I’ll send out another quick update, so stay tuned.

Miranda Jones Cox at WFRC has put together an excellent summary of what SB140 – Housing and Transit Reinvestment Zone Amendments does.  In case you haven’t seen it, here it is:

• Allows HTRZ to be proposed around a light rail or BRT station (currently HTRZ is only allowed around FrontRunner commuter rail stations). This is intended to encourage housing and mixed-use “transit oriented development” around more stations.
  • Limits the size of a proposed HTRZ around light rail or BRT to 1/4 of a mile and no more than 100 noncontiguous acres (currently HTRZ around FrontRunner is limited to 1/3 of a mile and no more than 125 noncontiguous acres).
  • Limits the period of value capture for HTRZ proposed around light rail or BRT to no more than 15 consecutive years within a 30-year period (currently HTRZ around FrontRunner is limited to 25 consecutive years within a 45-year period).
  • Limits the maximum number of HTRZ in any given county to eight around light rail and three around BRT (there is no limit for FrontRunner stations).
• Currently, an HTRZ is required to have a minimum of 50 units per acre. SB140 changes units/acre to “equivalent dwelling units”/acre (“EDU”). An EDU is one legal sleeping room. This is intended to encourage units with more bedrooms, suitable for larger families.
• Clarifies that the 50 EDU/acre requirement applies to the portion of the HTRZ that is dedicated to residential development (not to the entire HTRZ area).
• Currently, the maximum tax increment capture a city can propose is 80%. SB140 would reduce this to 60% if 40 EDUs are proposed/acre, and 40% if there are 30 EDUs proposed/acre.
• Requires that a city HTRZ proposal include:
  • an evaluation of the proposed HTRZ impact on parking availability.
  • possible benefits to active and public transportation availability and impacts on air quality.
• Requires that the HTRZ gap analysis evaluate the proposed density and increment capture needed to ensure a reasonable return on the investment, and the minimum amount of potential public financing needed to achieve the HTRZ objectives.
• Modifies the HTRZ review committee composition to add representatives with financial expertise – with individuals from the State Treasurer’s office and Tax Commission.
• Requires that the zoning for an HTRZ be in place before the HTRZ committee takes final action, rather than before the city submits the proposal.
• Clarifies that municipalities are required to participate at the same rate of tax increment capture as the county.

Check in to the blog here this weekend sometime, I will take some time to write about the recent surveys by Envision Utah and the Utah Foundation about housing character, what residents like and don’t like, etc. Interesting stuff

ANIMALS AND TRANSIT ZONES

January 27, 2022

Two more bills out as of last night.

HB253 – Large Concentrated Animal Feeding Operations Amendments – simply removes the deadline for adopting an ordinance in local land use codes regulating LCAFOs, which was Feb. 1, 2022

SB140 – Housing and Transit Reinvestment Zone Amendments – makes a number of changes and modifications, the most significant for land use is requiring that the local jurisdiction have in place zoning and land use regulations that are consistent with the development being proposed for the area in the HTRZ area.

Interesting story about the Utah Lake Authority bill.

Here’s the APA Utah bill tracker, thanks to my friend and colleague Scott Hess!

I’ve got more interesting stuff to share, but I’ve got to run right now, check back soon.

NEW BILLS, MORE STUFF

January 26, 2022

New Bills

Two bills of interest introduced yesterday in the state legislature:

HB227 – Recreational Trails – makes some modifications to the state recreational trails program and administration, most notably the process for dealing with a complaint relating to the trails use and purpose.

HB232 – Utah Lake Authority – we’ve talked about this in previous posts, this is the awaited new bill (last year’s bill was tabled to allow for more discussion and reconsideration).  This bill establishes a new specific purpose “regional” entity.  It will have lots of planning responsibility, being charged with developing a Utah Lake Management Plan and other related policies.  It is to do this in cooperation with other entities that border the lake and/or have impact upon it.  It does not have any direct regulatory authority over any of these other entities, but it does over the area it is given jurisdiction for.  That area is defined as the legal line of compromise for the lake, which is set at 4,489 ft. above sea level.  Most of this area is under the water of Utah Lake, but not all.  The authority has direct legal authority over this area to manage, allow for development projects, etc., including land use authority.  This would mean that if the much-discussed plans for creating new islands in the lake and building new communities on them were to actually happen, the Authority would have land use jurisdiction over them, not any of the surrounding communities.

Green Lawns

An interesting story in the St. George News about HB95, the bill prohibiting requirements for lawns.

Zoning Reform

To re-emphasize my points made in yesterday’s post about cooperation between levels of government being the best way to move any kind of “zoning reform” forward, here’s a story about how things are going down in Massachusetts, which passed a zoning reform bill last year. Titled Can You Force the Suburbs to Build Apartments?  Massachusetts is Trying, it details how rocky going down such a road can be when not everyone is on board:

The Boston suburb of Essex, for example, requires a four-bedroom apartment include six parking spots! “As a developer told us in a forum last week,” he said, “there’s also a concern that as-of-right zoning could have so many restrictions that it ends up being infeasible.” Even well-meaning rules, such as affordability requirements or environmental standards, can put a chokehold on new supply.

More worrisome, perhaps, is the possibility that suburbs can fulfill the mandate by redrawing zoning maps to include existing apartment buildings constructed during a more freewheeling era. According to the planning council, this double-counting could reduce the law’s impact by 75,000 units, nearly 25 percent of the total, especially in places that are already relatively dense and well served by transit—such as the college towns of Cambridge and Somerville. Perversely, this means that those places could sneak through allowing little new housing—while some faraway small towns zone for rapid growth.

Finally, there’s the concern that prosperous suburbs will simply not follow the law—a possibility that a couple of Newton councilors suggested might be easier than abandoning their right to shape future projects. “It remains uncertain what the courts will do if they don’t comply,” said Clark Ziegler of the Massachusetts Housing Partnership, which is working with jurisdictions on adapting to the new rules. “It is a mandate. It’s not an opt-in.” But if penalties don’t go beyond loss of grants, the mandate may not legalize apartments in very many suburbs. That, in turn, would funnel pent-up demand into those jurisdictions that do permit new apartments, increasing the burden of compliance.

It ain’t easy being green!

MUSINGS OF AN OLD PLANNER WHO’S SEEN A LOT

January 25, 2022

I just have to say that the activity and energy spent this year on growth related issues and planning is as much as I’ve ever seen.  The only thing I can compare it to was during the high-growth years of the 90s, when the state code for planning enabling legislation was rewritten to create LUDMA, the Quality Growth Commission was created, and Envision Utah was founded.  It’s being driven I’m certain by our nation-leading growth rate and the crisis in housing affordability.  The latter is very much an issue in much of the country as well, leading to what is broadly being called “zoning reform” – efforts to overcome NIMBYism and allow higher densities and limit or eliminate exclusive single-family residential zoning.

Not only have we had significant changes made in the last couple of years to the requirements for Moderate Income Housing plans and the establishment of a Commission on Housing Affordability, the talk about what else to do is at nearly a fever pitch right now.  Everybody is becoming a planning and land use expert, given what I hear about discussions going on behind the legislative scenes right now, in addition to the overt efforts like the CHA, conferences on the future of the Great Salt Lake and Utah Lake, and the discussions being held by the Unified Economic Opportunity Commission (see previous posts).  There’s talk of funding a statewide discussion on growth and planning, of making significant changes to the way land use is regulated at the local level (not quite the zoning reform we’re seeing elsewhere, but close), and establishing significant new state-level growth management policies.

I may have given the impression from some of my previous posts that I am not in favor of some of these efforts, but let me assure you that is not the case – things could use a good shake-up.  What I’m worried about is if we’re going to go through the effort of making these changes, we should do it in a way that would help them to be more successful.  When I see what is being pushed through in places like California and Oregon and now maybe Washington State, without the support of many local officials and citizens, all that effort may go to waste.  Don’t get me wrong, I do believe that NIMBYism is a serious problem, but the evidence of what is happening in these other places indicates that we must be careful about how we implement things.

Here’s an example.  One of the things being discussed extensively in Utah right now behind the scenes is requiring local governments to put in place provisions to allow for more mixed use and higher densities around transit stops – transit-oriented development as we planners call it.  We need to be careful, however, to not engender problems similar to what has cropped up in other places that have tried this.  Here’s an interesting story about the experiences of places like Massachusetts, Atlanta, Chicago and California that have been undertaking similar efforts.  It’s not gone smoothly oftentimes.  Here’s a snippet from the story about California’s moves:

In California, which has arguably the worst housing shortage in the country, some state lawmakers have repeatedly sought to force cities to allow denser housing near transit stops. While statewide efforts to mandate local transit-oriented upzoning have so far failed, some incentive programs at the state and local levels have shown results.

And in Atlanta:

the bills failed to clear the committee amid opposition from many neighborhoods. Homeowner resistance to denser housing often cuts across partisan divides, Farokhi noted. “History has proven that with single-family homeowners across the country, their initial reaction is oftentimes to resist even mild increases in density,” he said.

And in Washington State, where the legislature is currently considering a bill that would essentially eliminate exclusive single-family residential zoning, these comments were made during the bill’s committee hearing this week:

“(Auburn City mayor Nancy Backus) said it will be difficult for cities to overhaul all utility, transportation, housing and capital facility elements to accommodate more density.  Federal Way Mayor Jim Ferrell said he thinks the bill is too much of a one-size-fits-all approach to solving the “missing middle” problem. He said he believes the bill would undercut local control of Federal Way’s well planned, middle density development.  “I think ultimately this comes down to local control,” Ferrell said, “We ask that you please stop this mandate that offers this limited solution but allows for more local control” and “maintains a city’s ability to determine the best way to address this critical issue.”  https://www.thereflector.com/stories/proposed-law-would-force-cities-to-increase-housing-density-in-single-family-neighborhoods,282988https://www.thereflector.com/stories/proposed-law-would-force-cities-to-increase-housing-density-in-single-family-neighborhoods,282988

In yesterday’s Legislative Policy Committee meeting of the Utah League of Cities and Towns, League executive director Cameron Diehl said of all the land use proposals floating around the legislature right now that we must not do as California did (“we don’t want to be like California!”) where such changes were forced onto the local level by the state, but should instead have state officials work cooperatively with local officials to craft solutions that will have a better chance of being accepted and succeeding.

The talk behind the scenes on growth management right now seems to be considering things, in addition to “required” TODs, like regional “fair share” for affordable housing (see the Mount Laurel New Jersey cases) and tying the awarding of state infrastructure funding to local land use policies (can you say “smart growth?”), and many others.  I’m in complete agreement with Cam, that the best way to accomplish such things would be through cooperative initiatives between all levels of government.

MONDAY UPDATE

January 24, 2022

Interesting story in the Trib over the weekend about the bill that would create a new Utah Lake Authority.  Again, as we’ve noted earlier, this is another example of special purpose entities the state creates when extraordinary issues crop up (think MIDA, Port Authority, Point of the Mountain Commission).  Keeping our eyes on this one.

Also, I wanted to give you a rundown of the various funding proposals that are being considered in the legislature this year related to planning and dealing with growth, but Miranda Cox Jones at the Wasatch Front Regional Council has done such a good job of compiling them, I’ll just steal her summary and reprint it here! (thanks, Miranda, great work!)

• $232 million to replace the previously authorized bonding for the strategic double-tracking of FrontRunner bonding with cash. This would save over $30 million in interest costs, and would mean that funding will be available in the future for additional transit projects, rather than having those funds committed to paying debt service on bonds. This proposal has been endorsed by the Legislature’s Executive Appropriations Committee.
• $46 million for regionally important active transportation projects. This funding would build upon the $35 million appropriated last year for active transportation. When coupled with a 20% local match, this would allow the completion of priority projects around the state.
• $600,000 in ongoing additional funding to UDOT’s existing Technical Planning Assistance Grant Program which provides transportation planning assistance to local governments.
• $1.05 for technical planning assistance to Utah’s Associations of Governments (including WFRC) for training, grant writing, and other technical assistance to local governments.
• $1 million to fund a statewide growth planning and communications effort which is intended to help gain the public’s confidence in the state’s growth management efforts, and set a clear policy direction for Utah’s leaders to ensure sustainable growth.

LET’S ALL DO THE WAVE!

January 21, 2022

Gov. Cox gave his State of the State speech last night to a joint session of the state legislature and, as usual, talked about many things.  Part of his speech in particular caught my attention, as he talked about “The Wave.”  What?  What wave?  At the risk of beating a metaphor into the ground, if you’ve been reading previous posts here, you know that I’ve been saying that the nationwide “wave” of zoning reform in many states and communities is sort of headed for Utah.  And the governor’s speech reinforced that thought for me last night.  Here’s the section of the speech I’m referring to:

While water is the greatest limiting factor to our growth, there are several other pressing issues

we must address including air quality, transportation, housing affordability and other

infrastructure needs. Our goal should never be to grow for growth’s sake. We must prioritize a

quality of life that all Utahns can enjoy.

To Utah’s newest residents — and as the fastest-growing state in America there are many of you

— welcome to our beautiful state. We are happy you have chosen to call this your new home.

We have so much to learn from you.

…

Legislators, this session I ask for your support of new bills spearheaded by Reps. Joel Ferry,

Steve Waldrip, Joel Briscoe and Sen. Jake Anderegg to remove government regulations that

needlessly increase Utah’s housing prices.

We can increase supply without decreasing quality of life. This one will not be easy. But we

cannot let our state become California.

For the first time ever, people on the Wasatch Front are experiencing something that those of us

from rural Utah have felt for far too long: the terrible realization that our kids and grandkids

might not be able to live near us. In rural Utah that happens because of a lack of jobs. Along the

Wasatch Front, it’s due to the unsustainable increase in housing prices.

We have to get this right. We must act now.

Now, what government regulations that needlessly increase housing prices could the Gov be talking about?  Oh, wait, most land use regulating is done at the local level through ZONING!

Can you all do The Wave?

A PRETTY, GREAT PLACE – IF YOU CAN FIND A PLACE TO LIVE!

January 20, 2022

One bill I failed to catch earlier and make note of as a planning related bill is HB35 – Economic Development Modifications.  This bill primarily has to do with targeting particular classes of business for economic development incentives and the conditions and circumstances for that.  But it does do something new, in that it allows local governments to create Economic Development Zones within their jurisdiction (currently these zones must be created by a state entity with concurrence by the local government).  Such zones are to be located within a commercial or industrial zone, and the local entity must be willing to provide for local incentives for identified businesses.  The local entity must also adopt a long-term plan that addresses within the area the needs transportation and infrastructure, workforce development, and housing.

As noted in an earlier post, the state is recognizing that incentivizing businesses to come into the state not only brings economic benefit, but also impacts our local resources like transportation and, more critically at this time, available housing.  If a business is going to create a bunch of new jobs, where are those employees going to live?  There will be other bills this session that tie these factors together.  About time!

WATER, WATER EVERYWHERE (ACTUALLY, NOT HERE!)

January 19, 2022

A couple more interesting bills to take notice of.

HB135 – Open and Public Meeting Comment Requirements, which states that any public body holding an open public meeting must allow for “reasonable opportunity” for the public to make verbal comments during the meeting

SB110 – Water as Part of General Plan, stipulates that a local government general plan must include a water use and preservation element by December 31, 2025, and provides considerable detail on what that element is to address.

Wow.  Given our drought and growth in Utah, this is not surprising, and probably a good thing.  But it makes me wonder now how many other things may get added to the general plan as things that communities must consider.  It’s also interesting to note all the attention being paid to putting things like this and moderate income housing in our community general plans, but these plans are only considered advisory in our state, with no mandate that they have to be followed.

THERE’S NO STOPPING US NOW!

January 18, 2022

Today is the start of the 2022 Utah Legislative session!  What will it bring?

Last Thursday, the Salt Lake Chamber of Commerce held its annual Economic Summit, where they talk about what the state’s economy looks like, what the outlook is for the coming year, and with the legislative session right around the corner, what the Chamber’s legislative priorities are for this year.

You really get the sense that rapid growth, housing affordability and quality of life are right up there this year.  For example, in the category of business climate & economy, one of the priorities is:

We support policies that are geared towards smart growth strategies.

Okay.  To say you support smart growth is one thing, but that is a really fluid term.  What does the Chamber mean by smart growth?  Well, we get a better definition in the list of priorities for housing:

We support incentivizing housing near high-capacity transportation, jobs and other destinations, including transit-oriented, mixed-use developments that make smart use of land and allow residents to live in walkable, accessible communities.

This theme is carried on in the priorities for infrastructure and transportation:

We support local governments’ intentional efforts to plan and zone for mixed-use, multifamily and missing middle housing in coordination with high-capacity transportation and transit service. We also support requiring local governments to consider long-range regional transportation plans as they develop their general plans and zoning decisions.

There are more priorities listed that deal with land use, growth and quality of life.  You can take a look at the Chamber’s entire list here.  This list not only seeks to tell state officials and legislators what the business community thinks is important, but local governments as well, as many of them would require action at the local level.

Should be a most interesting legislative session this year!

DID I SAY THAT?

January 17, 2022

Next I want to post a bit about the recently released third installment of Utah Foundation’s report on missing middle housing.  This part of the report talks about what kind of housing is being built in Utah now, how it’s changed, and what styles of housing people say they prefer or can live with.  You can read the entire third part of the report here.

While the style of housing being built throughout Utah has changed pretty considerably the last few years (no doubt in response to changed conditions after the financial crisis triggered by housing, and by rapidly escalating housing costs), people still say they mainly prefer new home construction to be single-family detached housing (or stuff that looks very much like it).  This has got to be driven in large measure because, according to the study, some 74% of the survey respondents themselves live in single-family detached housing.  And in most places around the state, this style still constitutes the majority of new housing construction, though it is decreasing in dominance.

What I find rather interesting is that the study finds that:

Most survey respondents (60%) support more affordable housing options in their neighborhoods, with 38% strongly favoring more options. About 18% of respondents oppose more affordable housing options, while 22% are neutral. To address affordability issues, about 46% of survey respondents would accept middle housing in their neighborhoods…

While this is what people say in a survey, they sure don’t show up to the Planning Commission and City Council meetings to express that when different new housing developments are being considered!  Or even when the Moderate Income Housing Plan is being updated by the local officials.  Maybe instead of public hearings, more of our planning and land use decisions should be based on objective surveys of the community, but how to accomplish that in a reasonable timeframe and cost?

CAN YOU SEE IT COMING?

January 14, 2022

So many things have come across my ipad the last few days, such a target-rich environment, I have so much I could write about.  And I could tie it all together in one big post!  But that’s not a good idea, it would be way too long and most of you would probably quit reading long before the end, so I’ll break it up.

I think I’ll start with this – the latest place to join the zoning reform effort is Washington State, with some rather detailed and complex legislation proposed.  A good description of the proposals can be found in this piece by Dan Bertolet of the Sightline Institute.  The proposed bills (one in the House and one in the Senate of the Washington State legislature) would institute this formula:

1. Up to sixplexes on all residential lots within a half-mile of a major transit stop in cities with populations of 20,000 or more.
2. Up to fourplexes on all residential lots elsewhere in cities of 20,000 or more.
3. Duplexes on all residential lots in cities with populations of at least 10,000.

The bills would do a number of other things as well, but suffice it to say it would be a significant change in the rules of local land use planning and regulation.  As expected, it has its supporters and detractors.  In a recent story about major issues to be addressed in the Washington legislature this year, Crosscut, an independent public-supported media website by Cascade Public Media, says:

“(Washington Governor) Inslee said the measure is needed to address a shortage of housing units throughout the state, which contributes to high housing costs. Local zoning regulations exacerbate the housing shortage by limiting the kind of “middle housing” — such as townhomes and duplexes — that can be built in certain neighborhoods, he said.

In a Crosscut/Elway Poll released this month, 55% of Washington voters said they didn’t approve of getting rid of single-family zoning in medium to large-sized cities, as Inslee’s plan proposes.

But Inslee said he thinks people in Washington do support building more housing when the idea is framed as a way to help solve homelessness and sky-high housing costs.

“I do believe people want us to address this issue,” Inslee said last week. “And what I have learned is that you can’t solve homelessness if you don’t build more housing, it’s physically impossible. We need more roofs. And to get more roofs, we need to remove some of these governmental restrictions.”

Wilcox, the House Republican leader, said he thinks those decisions should be left to cities.”

The bills are up for their first committee hearings on Tuesday.

And what of Utah?  Well, after the comments by Sen. Jake Anderegg and Rep. Steve Waldrip in this week’s Unified Economic Opportunity Commission meeting that I posted about a couple of days ago, and then this comment made yesterday by Gov. Spencer Cox at the Salt Lake Chamber’s Economic Summit, I think the wave that’s coming is getting bigger.

“Cox also shared his concern that the state’s explosive growth and escalating housing costs could lead to a generational exodus as young people may need to seek more affordable climes when they leave school and enter the workforce…. (H)e said that the upcoming legislative session would see bills focused on smart growth strategies that, while necessary, may not find favor with all audiences.”

Start swimming!

I’LL SEE YOUR TACO TRUCK, AND RAISE YOU A SCHOOL…

January 13, 2022

A few more bills relating to land use have appeared, again ones I had no idea were coming.  Maybe that just tells me how out of touch I’ve gotten on these legislative matters ☹

HB118 – Wetlands Amendments – just requires that anytime a local entity issues a permit that affects a designated wetlands area, a copy of the permit is to be submitted to state Division of Wildlife Resources.

HB128 – Education Impact Fee Amendments – this is a pretty big change – it would remove the prohibition on local entities from being able to charge impact fees for schools and educational facilities. Wow!

HB146 – Food Truck Licensing Amendments – makes a number of changes with regard to licensing and regulating food truck.  Notably, it now also includes ice cream trucks!

WHAT GOES AROUND, COMES AROUND

January 12, 2022

I listened to the meeting yesterday of the Unified Economic Opportunity Commission, which I have noted seems to be the de facto state body that looks at and considers the state’s growth and attendant impacts.  This is actually a pretty good body to have these discussions as the Commission is chaired by the Governor, with legislative leadership and committee chairs, state department heads, and local elected officials sitting on it.

Yesterday’s meeting was true to form, with considerable discussion about affordable housing, incentives for retail in community development project areas and the need to include housing, a state-led effort to have a conversation with residents statewide on growth and quality of life, and other things.

Sen. Jake Anderegg, co-chair of the Commission on Housing Affordability, made some remarkable comments about how leaving local governments to deal with growth impacts may not be the best way to deal with the issues presented by strong growth, and some of the proposals that are being considered for legislative action this upcoming session to deal with housing affordability.  Rep. Steve Waldrip, the other CHA co-chair, talked about things like housing regional fair share (most famously institutionalized with the Mount Laurel (NJ) court rulings in 1975 and 1983) and tying state infrastructure funding to conformance with state growth policies (ala 1990s Smart Growth programs in other states), which in my experience is pretty remarkable coming from a conservative state legislator.

State Planning Coordinator Laura Hanson then talked about the plans for holding a statewide Conversation About Growth with the state’s residents and some other initiatives, for which the Governor’s budget includes about $1 million for the coming year.  More on this later.

Take a listen to the Commission meeting discussion here, starting at about minute 40.  It’s truly gratifying that these issues are being discussed at the highest levels of state policy making.

THE GRASS IS ALWAYS GREENER…

January 11, 2022

More explanation behind HB95 which restricts requirements for installing and maintaining lawn/sod in this Deseret News story.

TWO LAND USE BILLS POP OUT

January 5, 2022

Bills are starting to pop out on land use issues, and once again there are topics coming up that have not had much discussion by land use interests.

HB85 – Eminent Domain Amendments – this bill would add parks to the list of things that government cannot use the power of eminent domain to acquire property for.  First trails, now parks.  Hmmm…

HB95 – Landscaping Requirement Prohibition – this bill would prohibit cities, counties, homeowners associations, and mobile home park owners from requiring property owners to plant and maintain grass and sod.  Obviously a water conservation measure, which begs the question, what else may be coming?  Interesting.

This is only the beginning, folks.

STATE OR LOCAL? WHO’S BETTER? A, B, OR NONE OF THE ABOVE?

January 5, 2022

So what is going to be the best way to address the issue of housing affordability?  For that matter, what is the best way to address any growth-related issue in our state?  State-level policies? Regional? Local?  Let the market prevail?

I’ve found some interesting research that addresses this topic and maybe presents us with some lessons to learn from, if we will.

I’ve noted in an earlier post that we seem to leave much of land use policy to the local governments, with some regional coordination for mainly transportation.  And when we do run up against some bigger policy issue that needs a broader overview, we take an ad hoc approach at the state level.  This is not unusual, as it appears that a number of other states take a similar approach.  A few have taken on the challenge of developing state-level growth and land use policies, like Oregon, Florida and Maryland.  But is one approach more effective?  Are there other considerations?

In a research project by Jerry Anthony, University of Iowa, titled Do State Growth Management Regulations Reduce Sprawl? he says:

“This paper provides a case study of one of the lesser-known states, Michigan, which is representative of the vast majority of non-growth management states. The study finds that Michigan has been influenced by trends from the better-known areas. This has led to a host of state, regional and local-level initiatives, sometimes wrapped in the language of economic development, aimed at [land use policies]. However, there is little evidence that these initiatives are successful. This is primarily due to the absence of state level mandates for planning, a lack of funding and a strong home rule tradition. The findings are probably repeated in many states across the nation: a proliferation of initiatives (emphasis added), which, with only few exceptions, will not represent best practices.”

This seems to describe Utah pretty well, particularly the part about absence of state level planning, lack of funding, and strong home rule tradition.  Every so often we get into problems that seem difficult to solve without better high-level coordination and even policy and program statements.  See MIDA, Inland Port, Utah Lake, ADUs (partially) and it looks like upcoming, the Great Salt Lake.

This seems to argue for doing a better job of statewide policy setting.  We’ve had such discussions in the past and sort of tried to do something along those lines, with things like the Quality Growth Commission.  And this year, it appears that the Unified Economic Opportunity Commission is becoming the overall arbiter of growth policy at a state level.

Indeed, there is some research out there that argue forcefully in this direction.  In a paper titled The Erosion of Home Rule through the Emergence of State-Interests in Land Use Control by John R. Nolan published in the Pace University Environmental Law Review, the author cites some issues that have occurred in New York State along these lines.  In an older court ruling on regional fair share for housing, the state’s court of appeals:

“… called for the state legislature to adopt a system of “State-wide or regional control of [land use] planning” to “insure that interests broader than that of the municipality underlie various land use policies.” The state’s highest court also minced no words (when) it stated that New York’s “zoning enabling legislation is burdened by the largely antiquated notion which deigns that the regulation of land use and development is uniquely a function of local government . . . . ” Under this system of local control, “questions of broader public interest have commonly been ignored.” The court referenced criticisms of community autonomy finding that local land use control suffers from “pronounced insularism” and produces “distortions in metropolitan growth patterns.” It noted that local control has the effect of “crippling efforts toward regional and State-wide problem solving, be it pollution, decent housing, or public transportation.

“How the regional impacts of local land use decisions are to be controlled is an enduring problem still seeking a solution in this state.”

And, I would argue, in our state as well.

More to come on this topic, stay tuned.

WHAT’S THAT ON THE HORIZON?

January 3, 2022

Remember when that Christmas tsunami hit in Thailand and Myanmar several years ago?  Some pictures came out later showing people on the beach kind of bewildered by the retreat of the ocean from the shore shortly before the giant wave crashed in.

That’s kind of what I feel like is happening here in Utah with regard to the housing affordability issue and local land use planning and regulation.  If you look out to sea, you can see the wave coming.  It’s coming from what’s happening all around the country, and even around the globe.

Here’s some more evidence.

This is from a review on the Planetizen website about the top planning issues and trends of 2021:

“A list of the cities, states, and even countries on the cutting edge of a dramatic overhaul of the planning status quo would probably surprise anyone even casually familiar with the history of post-World War II planning in the United States. Try these examples of zoning and planning reform from around the country and world: Atlanta, Berkeley, Boston, Charlotte, Chicago, Dallas, Denver, Iowa City, Minneapolis, the Port of Long Beach, Raleigh, Sacramento, San Diego, San José, Tacoma, Toronto, California, Connecticut, Minnesota, New Zealand, and the White House. All of these jurisdictions are leading zoning and planning reforms of varying scope and significance—some  by allowing new density and removing the exclusionary blanket of single-family residential zoning; some by removing the number of parking spaces required for development; some by rewriting local zoning codes; some by taking the law out of locals’ control. There’s even a growing chorus of calls for zoning reforms that allow corner stores and other neighborhood-serving retail spaces in residential areas.

“If that impressively long and varied list weren’t enough proof, researchers surveyed 800 municipalities (all located in the 50 largest U.S. metropolitan areas) for evidence of zoning changes enacted as a tool of affordable housing policy and published the results in the Journal of the American Planning Association. According to the study’s findings, 49 percent of municipalities were using zoning incentives (e.g., density bonuses, reduced development fees, streamlined permitting, and reduced parking requirements) in 2019 to spur the development of affordable housing. Among that total, 36 percent offered density bonuses, 3 percent allowed accessory dwelling units, 6 percent offered smaller minimum lot sizes, 18 percent offered building envelope extensions, and 18 percent offered reduced parking requirements. Eventually researchers will be able to say that those percentages continued to increase, and even picked up the pace, in 2021.

“The increased adoption of zoning and planning reform is spurred by multiple drivers. Housing prices are continuing to spike and new cities are joining the most expensive club, so some of these reforms are designed to improve housing affordability. The growing number of cities and states implementing zoning reforms unequivocally signals the increasing influence of the YIMBY movement in planning politics (and also at least partly explains a planning reform victory lap published by the Reason Foundation earlier this week).

“The zoning reform movement is also spurred by an emerging awareness of the discriminatory intentions of single-family zoning. Look no further than Berkeley, California for an example of the arc of exclusionary zoning history. Despite its reputation as a liberal haven (the city is often called the “People’s Republic of Berkeley”), Berkeley bears the ignominy of being the first city to implement exclusionary zoning, documenting its racist intentions in the process. For decades, Berkeley doubled down on the exclusionary system it invented. Now the city is undertaking a sweeping reform agenda to undo that legacy. In the past year, the Berkeley City Council has removed parking requirements for all developments, voted to end single-family zoning, and launched a process that could potentially add a 100% percent affordable overlay. The Berkeley Planning Commission is leading a push for new transit oriented density near stations on the regional transit system (i.e., BART).

“The momentum of zoning and planning reforms has even reached the institutions at the very core of planning practice. The American Planning Association (APA), a professional organization with every incentive to protect the status quo that it built over the decades, offered proof of its commitment to the growing reform movement with an article published in May 2021 calling for a “complete rethink” of zoning.”

On December 29, an opinion piece by Andra Ghent, professor of finance and real estate at the U., was published in the Deseret News.  While I question the professor’s understanding of local government politics and processes, it still is another example of the coming wave.  From the column:

“Third, the state can coordinate cities by harmonizing and simplifying zoning codes across cities within Utah. Land use control is a constitutionally guaranteed right of states, not municipalities. States can take back the power they have delegated to municipalities if it is in the public interest to do so.

“Harmonized zoning would encourage more housing supply because developers would know they could develop a certain kind of housing in several cities. A harmonized zoning code would also pave the way to scale potentially lower-cost home production techniques such as 3D-printing of houses and modular housing. Anything that reduces construction costs by encouraging competition or allowing economies of scale will in turn be passed on to households in the form of lower home prices and rents.”

And finally, in a recent excellent piece by David Brooks in The Atlantic titled How the Bobos Broke America, which is about how the politics of our nation has become so divided and compartmentalized and extreme, and what maybe to do about it, is this one line:

“For instance, we need more pathways to success, so those who are not academically inclined have routes to social leadership; programs like national service, so that people with and without college degrees have more direct contact with one another; and an end to policies like residential zoning rules that keep the affluent segregated on top.”

When land use issues are coming up in things like columns on what’s wrong with our national politics, I think I can see the wave coming!

TO BE, OR NOT TO BE (A TOWN)

December 31, 2021

As this COVID-ridden year comes to an end, a recent news story reminds me again of the “forgotten” growth and land use issue – annexation and incorporation.  A couple of stories about the on-going incorporation saga of Erda in Tooele County, and associated annexation conflicts, serves to point out all the recent battles of a similar nature that have occurred during this year – Hideout, West Weber County, Brighton, Olympia Hills, and others.

While we follow a lot of growth and land use controversies that sometimes lead to tussling over LUDMA provisions, we also sometimes see these kinds of battles erupt over the annexation/incorporation code sections, as occurred in the 2021 legislative session.  Many, if not all, the disputes over annexation/incorporation involve fights over growth and development – facilitate it (e.g., Hideout) or stymie it (e.g., Erda).

Many years ago, I was involved in the rewriting of the state annexation code, which resulted in essentially a two-track process – one for Salt Lake County (because of controversies with areas that eventually led to the creation of townships and all the headaches that went with that), and one for everybody else in the state.  Neither was particularly well-done, especially the Salt Lake County track.  Since then, there have been a number of amendments to these codes which have only served to confuse things even more.

There is a real need to completely relook these codes and recodify them.  It likely won’t solve all the problems, but it could make things better.

PLANNING  GHOSTS, PAST AND FUTURE

December 27, 2021

With the end of the year less than a week away, everyone is putting out their reviews of the past year, and/or a look ahead to the coming year. So, why not?  I’ll do the same for some planning-related issues.

Two interesting pieces I just saw that kind of embodied this approach for me.

The first is a report from the Pew Research Center titled Americans Are Less Likely Than Before COVID-19 To Want To Live in Cities, More Likely To Prefer Suburbs.  After all the talk over the last several years about how our metropolitan urban centers are growing so steadily, driven by younger and tech-oriented workers, it seems that the pandemic may have altered that trajectory a bit.  Looks like the “suburbs” are back in.  And as I noted in an earlier post, that surely seems evident by the growth taking place in many of our outlying suburban communities.  From the report:

“About a year and a half into the pandemic, there is some evidence that Americans are less likely now than they were before to want to live in urban areas – and more likely to want to live in the suburbs, according to a new Pew Research Center survey.   About one-in-five U.S. adults now express a preference for living in a city, down from about a quarter in 2018. The share of Americans who would like to live in the suburbs has increased from 42% to 46% during this time, while preference for rural areas is virtually unchanged.”

“About three-in-ten adults in urban areas who say they would want to move (28%) say they would want to stay in an urban area, while 48% would want to move to the suburbs and 23% say they would want to move to a rural area.”

Some of this may well be due to the pandemic-forced trend of more people working from home, and the desire of these workers to have more room to do so, as well as the lessening need to travel into an office work location.  And it may also be driven in part by the cost of housing.  The report also notes:

“Fully 63% of urban residents say the availability of affordable housing is a major problem; 46% of suburban and 40% of rural residents say the same.”

Overall, the percentage of survey respondents who said affordable housing was an issue was 49%, up considerably from the 39% who said so in 2018.

I must note here, there was no definition given for what was considered urban, suburban, or rural, but with only these three categories to choose from, I’m guessing that most people would view urban as being metropolitan central areas like downtown New York, Chicago, or even Salt Lake City, while suburban means just about everywhere else outside those urban enclaves.

So that’s where we’ve been in the last year, and portends some of the challenges we have ahead for the coming year.

A second piece I read from the Herald Journal News titled Steering into 2022: Locals list wishes for Cache Valley in coming year gave me some insight into things that are on the minds of our fellow residents for the coming year.  The Journal asked readers to respond by email to the question they posed, “What do you wish for Cache Valley in the coming year?”  While this is admittedly a small sample of our total population, I think many of the thoughts expressed were similar to what I think we would hear from those all around the state.

Traffic and transportation appeared to be the top issue, and several suggested the way to alleviate that problem was to limit or stop growth, some even calling for a moratorium on issuing new building permits.  This all reflects a similar sentiment expressed in a recent Utah Foundation survey that showed that citizens think that rapid growth is a problem in our state.

But apparently this desire to limit growth collided with another concern expressed by respondents about affordable housing.  As the Journal noted in its story:

“Nobody on the comment thread suggested that building restrictions might lead to higher home prices — a situation Cache Valley finds itself in even in the midst of a residential building boom — but several locals did say they wish for more affordable housing in the coming year.”

Happy New Year, everyone!

LEGISLATIVE CHRISTMAS PRESENT

December 20, 2021

Just a quick update on some of the latest legislative stuff.

Here’s a link to some slides from the League about the various legislative modifications that the Commission on Housing Affordability is working on incorporating into a bill (or bills).  Some interesting provisions here, take a look.  I find the one about having to submit a map of each entity’s land use/zoning to the state an interesting one, not sure what that will accomplish.

And we have a bill draft out now.  HB36,  sponsored by Rep. Steve Waldrip and co-sponsored by Sen. Jake Anderegg, the co-chairs of the CHA, would disband the Commission on Housing Affordability and recreate it as a subcommittee to the Unified Economic Opportunity Commission, which committee I’ve posted about before as becoming the prime state-level body looking at the issues of growth in Utah.

More to come!

IT’S EVERYWHERE!

December 17, 2021

I was reading in last weeks issue of The Economist an opinion piece about growth that I thought sounded very much like the experience we are having here.  Titled Britain’s New Suburbs are Peculiar Places, it looks at how growth in British communities has been shaped by land use restrictions and NIMBYs, among other things.  It very much reminds me of our communities.  Noting that cities used to grow by accretion, where new developments took place within or directly adjacent to existing neighborhoods, now it’s getting pushed out farther away because … “established residents tend to prefer that large new developments remain a respectful distance..”.  As a result, the story notes, those new development are “sprawling and disconnected – a clump rather than a city.”  “Though the (new) estates are well-planned individually, they do not add up to a coherent town.”

The piece also notes that because of restrictions and objections, not enough housing in being built, causing an affordability crisis, and gives a rather good visual to explain how this happens:

“Britain is often said to be building too few houses, but that is not the whole story. Imagine a balloon that is being gripped by a pair of hands. The balloon is steadily inflating as the population grows and the national government nags local authorities to build new homes. Meanwhile the hands, representing planning restrictions and local nimbys, try to constrain any expansion. In many places the hands prevail, and little or nothing gets built. But in parts the balloon bulges spectacularly, resulting in many more homes than local people need.”

This seems to reflect pretty well what is happening all over the United States as well as in Utah, where the reference to a national government are instead the states here.  The bulges described usually take place in farther out areas because first, there are not so many people out there to object, and second there hasn’t been time for a constituency to develop to oppose development and get their cities to put in place more restrictive rules.

Want proof?  Take a look where the fastest growing communities in our fair state are.  It’s mainly on the fringes of the urban areas, not in the middle near the older more established neighborhoods.

1. Vineyard       139         12,543         8923%
2. Herriman      21,785    55,144           153%
3. Bluffdale         7,598    17,014            123%
4. Saratoga Sp. 17,781   37,696            112%
5. Eagle Mtn.     21,415   43,623            103%

And affordability has now made this a state level issue.  As noted frequently, a number of states (and in some cases, large cities) are attempting to deal with this through what is collectively now being called “zoning reform.”  I’ve written about many of these previously, and here’s just another recent example:

New York takes aim at apartment bans: state bill would allow up to four units on lots, ban exclusionary policies

And as some of you may note, I kicked this whole post off with a piece from a British publication, which reflects that international nature of this issue.  To wit, here’s what is happening right now in New Zealand, which, like a number of other rich world countries, is also experiencing housing affordability issues:

Sweeping townhouse bill passes into law…, will force councils to allow more homes

As much as we are trying here locally to approach this issue in a reasoned, measurable manner, the tidal wave is coming.  It’s hitting everywhere else.

WE MUST HANG TOGETHER TO AVOID BEING HUNG SEPARATELY

December 13, 2021

Over the weekend I saw a couple of stories that epitomized for me the challenges of addressing housing affordability in our quite conservative state.

Now I need to say, I highlight these stories not because it’s like driving by a car crash and you just can’t help but stare at it.  It’s more about pointing out that such a seismic shift in an established institution like land use regulation, to succeed, is best accomplished by concerted collaborative effort.  Here are a couple of exhibits why.

A story in the Bangor Daily News (Maine) https://bangordailynews.com/2021/12/05/politics/maines-aggressive-housing-policy-push-runs-into-history-of-strong-local-control/  describes that state’s machinations in addressing housing affordability that sounds very similar to our own.  The state legislature there set up a state-level commission to come up with proposals, which are essentially a compilation of what has been tried or talked about in other states.

“A draft report released Thursday by a legislative housing commission proposed a range of solutions, including eliminating single-family zoning and annual caps on home construction, allowing homeowners to add accessory units like in-law apartments and allowing up to four units to be built in lots now zoned for one. It wants to steer aid to municipalities with housing-friendly policies and consider a state board that could overturn local development decisions.”

Gotta love that last one, which prompted the completely expected reaction from local governments:

“Kate Dufour, a lobbyist for the Maine Municipal Association and a commission member, supported most of the recommendations, but the association is against changes eroding the authority of member cities and towns, including eliminating growth caps and the state-level appeals board. Dufour hoped those items were struck from the eventual package and that the state offers municipalities help reaching the goals that it outlines, since local officials are going to be charged with “keeping the peace” once state policy trickles down to outcomes.”

And when that collaboration doesn’t happen – well, as I pointed out in an earlier post showing how creative people can be when they look for ways to get around rules they don’t like, there was a really crazy example from Atlanta in a story in Bloomberg CityLab https://www.bloomberg.com/news/articles/2021-11-22/buckhead-fights-atlanta-s-multifamily-housing-push?srnd=citylab

“Residents of the area collectively known as Buckhead in northern Atlanta are trying to ward off new proposals working their way through city planning channels that would allow for more multifamily housing, and many of them are willing to create a new city to prevent this from happening.”

Apparently the legal climate in Georgia allows for new cities to be created from neighborhoods in existing cities, and the residents of the Buckhead area are working to do just that to avoid measures being contemplated by the Atlanta city council to address housing affordability and racial disparity.

Collaboration, people, that’s what it takes, by all involved.

I THINK I’LL TAKE THE COMPACT

December 10, 2021

Unless you’ve been out of the country or stuck underground somewhere for the last couple of years, we’re all aware of the housing affordability issues and efforts to address those the last couple of years here, and around the country.  Lots of things are being discussed and tried, with inconclusive results at this point.

So I was just reading about an initiative that has been taking place in south Florida for a few years now, to address climate change.  It is a cooperative effort of four counties and 26 municipalities, called the Southeast Florida Regional Climate Change Compact.  It is a voluntary partnership created by all those entities, and has achieved some modest successes.

The thought came to me, what if we tried to do something similar here along the Wasatch Front, but for housing affordability rather than climate change?  Here are some sections I was reading about this, where I have substituted “housing affordability” for climate change.

The Wasatch Front Regional Affordable Housing Compact is structured so that participants can build general agreement on recommendations for local governments and others to inform legislation, policy and planning. This occurs through the steering committee – the principal decision-making body of the compact.

The compact’s steering committee consists of the chief officer of each participating entity. Once it reaches regional agreement on policy and products, such as for example an inclusionary zoning model, the relevant authorities in each county or municipality translate this into local action.

The compact works through steering committees. Steering committees bring professional staff and citizen officials together to build general agreements on recommendations about legislation policy and planning. The recommendations seek to inform comprehensive land-use plans, … zoning ordinances, building codes and transportation standards and are implemented through county and municipal decision processes, budgets, local public involvement, enforcement, monitoring and review, and politics.

The coordinated structure means the regional body is able to lobby and achieve outcomes at other levels of government. For example, in 2010 the Florida compact negotiated the creation of Adaptation Action Areas (AAAs) by the Florida Legislature, and in 2015 state statute Chapter 163 was amended to strengthen Florida’s Comprehensive Planning Law around flooding. Also, the Regional Climate Action Plan identifies priority areas for the region to lobby for federal resources, align state and local policy arrangements, and coordinate scientific data and new research. Such actions could be achieved by a housing affordability compact as well.

What’d’ya think? Or will the crisis be over before we could get something like this organized and working? It would certainly take some funding too, for the staffing and administration.  Hmmm….

THE BUDGET – PART TWO

December 9, 2021

Okay, part two of taking a look at Governor Cox’s budget recommendations on growth-related topics.

As discussed in an earlier post, we have been approaching statewide issues in Utah with location-specific regional entities like MIDA, Inland Port and so on.  The budget recommends funding for further work by some of these entities:

“Other projects with significant transportation and quality-of-life benefits such as The Point and Inland Port will be key to the economic future of our state. With an initial $141 million investment, The Point will be a transformational attraction that serves as an innovative model for integrating housing, employment, recreation, and services that are linked by highways, transit, and active transportation. The Inland Port will connect rural economies to major ports throughout the nation, attracting capital investment in the modern economy and helping to keep goods moving in, out, and through Utah smoothly.”

Future water resources for growth in our state is a topic that has been rapidly rising on the list of growth concerns of citizens and officials. Here are some of the water recommendations in the proposed budget:

• $200 million for secondary water metering, with an aim to increase water conservation.

• $1.5 million to help incentivize homeowners to rip out their lawns.
• $8 million for watershed health.
• $25 million to rehabilitate Utah Lake.
• $50 million in federal COVID-19 relief funds, in addition to $20 million already appropriated, for agricultural water conservation efforts.
• $75 million in federal COVID-19 relief funds, on top of $25 million already appropriated, to bring clean water to Westwater for the first time from nearby Blanding and improve drinking water systems in other small rural communities.
• $890,000 from water fees to aid local communities in maintaining drinking water standards.
• $100 million in federal COVID-19 relief funds for a local match program to help local cities and towns fund additional water infrastructure.
• $500,000 to begin planning and developing future water storage solutions.
• $4 million for a watershed restoration initiative plus $1.5 million to the Shared Stewardship initiative to improve watershed conditions, increase water yields and reduce wildfires.
• $1 million for pre-fire mitigation and $2.5 million to restore fire-ravaged landscapes to protect drinking water quality.

In addition, Governor Cox is recommending some specific initiatives for restoration and preservation of Great Salt Lake:

“To ensure responsible future management of the lake and surrounding wetlands, the governor recommends $600,000 in restricted funds to update the Great Salt Lake comprehensive resource management plan. In addition, the governor recommends directing $45 million of the state’s ARPA funds toward Great Salt Lake preser- vation efforts on top of $5 million appropriated in May for a total of $50 million. These efforts will enhance and direct water flows to the lake, restore and preserve wetlands and upland habitat, and integrate the Great Salt Lake into water and land use planning. Similarly, $25 million of the state’s ARPA funds will be used to rehabilitate Utah Lake and improve its water quality.”

And let’s not forget transportation, which is always closely tied to land use and growth issues.  In a story yesterday in the DesNews (https://www.deseret.com/utah/2021/12/8/22824661/the-secrets-out-utah-seeing-remarkable-population-growth-heres-how-much-because-of-migration-census ) on growth in Utah and related budget recommendations, State Planning Coordinator Laura Hanson says about the transportation proposal:

“the budget includes $46.2 million for active transportation investments to combat issues surrounding air quality. These are bicycle facilities, sidewalks and trails so that people don’t have to drive a car if they don’t want to and gets people off the roads,” Hanson added. “We’ve actually had declining emissions over the last many years. It goes to show that when Utah puts our minds on a target … we’re really effective at accomplishing those goals. So, I think air quality is one that will continue to be a focus for us.”

There’s more in the budget as well on issues such as energy and air quality.  Take a look, it’s pretty readable, at https://gopb.utah.gov/wp-content/uploads/2021/12/2021_12_07-Budget-Book.pdf

Now of course, these are all only recommendations that must be considered and approved by the state legislature.  Speaker Brad Wilson recognizes the challenges of the state’s high rate of growth. He also sees a role in bringing local jurisdictions into the mix, as he’s quoted in the DesNews story:

“Although the budget also includes $228 million to address affordable housing and homelessness, Wilson said that the issue is more related to supply and demand.

“We’ve got to do a better job of getting more supply into the market quicker; and we need our municipalities, in particular, to be a little more agile and a little bit quicker in terms of the way they approve projects so that we can fix this — that’s the only solution to get more supply into the market,” Wilson added.”

All this will make for an interesting 2022 state legislative session!

NOW THINGS GET DOWN TO BRASS TACKS

December 8, 2021

Governor Cox released his 2022 budget yesterday (at Antelope Island no less, my old stomping grounds!  He chose this location, I’m sure, to emphasis the resources he proposes to direct toward Great Salt Lake restoration and water conservation and infrastructure, which is substantial in the budget).  There are a number of growth and planning-related proposals in his budget.

In one of my earlier posts last month, it was indicated that the new Unified Commission on Economic Opportunity was really becoming the state-level body to discuss growth-related issues.  I mentioned that at their recent meeting, it was talked about that there should be a state-wide discussion about growth issues and ideas to deal with it.  That effort, it was indicated, would be led by Laura Hansen, the State Planning Coordinator.  The just-released budget proposes funding to support this effort:

It is no surprise that housing affordability, air quality, water availability, and infrastructure investments are top of mind for many Utahns. Policies that navigate the state’s rapid growth must be renewed, and the public must have a role in that conversation. Aligned with the work of the Economic Opportunity Commission, Gov. Cox recommends $1 million to fund a data- driven, statewide conversation about growth. This effort will be designed to explore the values residents feel are most important, and evaluate support for policy strategies that the state can undertake to maintain and promote quality of life.

The main, 600-pound gorilla issue that has been rattling around for a couple of years now is affordable housing, as I’ve written about on numerous occasions.  Both the Commission on Housing Affordability and the UCEO have been working on this, as well as individual legislators.  The Governor’s budget proposes the following for housing affordability:

Our middle class is feeling the pressure of a hot real estate market and the rising cost of living. Gov. Cox recommends $50 million to foster the development of more than 1,100 affordable housing units across the state through private activity bonds. Additionally, the governor proposes $50 million for the new construction or rehabilitation of rural workforce housing so all areas of our state can benefit from an accessible, competitive labor pool.

To assist in the management of growth generally, the Governor’s budget proposes several initiatives, including one that Craig Call and I recently discussed with the current State Property Rights Ombudsman, Jordan Cullimore.  This program is intended to help build a cadre of “trained” people who can assist in conducting the required land use administration training that is now required for all planning commission members, as well as for others.

Local governments are struggling to keep up with planning issues such as transportation, housing affordability, and economic opportunity due to rapid growth. Gov. Cox recommends $1.7 million in ongoing funds to assist local governments with planning issues. This additional funding will not create new programs, but rather add $600,000 to the Utah Department of Transportation’s Technical Planning Assistance Grant program and provide the state’s Associations of Government with $1.1 million distributed equally to provide assistance and training to local governments. An additional $250,000 in one-time funds will support the development of a “Train the Trainer” program in the Office of the Property Rights Ombudsman to support dissemination of current land use requirements and best practices.

There’s lots more in the budget on growth and planning, which I’ll get into more in upcoming posts.  You can take a look at the entire proposed budget for yourself here https://gopb.utah.gov/wp-content/uploads/2021/12/2021_12_07-Budget-Book.pdf  Keep in mind, the Governor’s budget is only a recommendation, with the legislature having the final say in what gets enacted.

Stay tuned!

IT’S A WHAT?

December 6, 2021

Humans can be a creative lot when they need to be, which is a good thing because that’s how we solve difficult problems!  And right now, affordable housing is a difficult problem.

As I’ve written about previously, one of the approaches that a number of states and cities are taking is to increase the number of housing units being built on the theory of supply-and-demand.  Since many citizens object to increasing density or allowing varied housing types in their neighborhoods, these jurisdictions are mandating that housing allowed cannot be exclusively single-family residential.  Often, it is the semantics of the issue, calling the new development proposals high-density or multi-family that seems to cause the problems.

A recent posting in the Urban Land Institute’s Solution File presents a concept called Horizontal Multi Family Detached (HMFD), which essentially is a development at multi-family density levels but built as single-story, detached units.  They are essentially small, closely spaced single-family housing units.  Hmmm.  Calling them thus, can they make inroads in our communities?  Maybe.

We’ve heard lots lately about the “missing middle” and how it should be allowed in many traditional neighborhoods.  This HMFD (I’d call it HSFD to get over the stigma of the tag “multi-family”) concept may be another arrow in the quiver.

Helping citizens to understand and get used to the concept of missing middle or HSFD in traditional neighborhoods may take some work on the part of local officials.  To that end, let me share with you a recent paragraph that has recently been included in the draft general plan update for Kaysville City (full disclosure: I’m on the Planning Commission there).

In a section in the plan title “Character Areas,” the various land use areas identified in the future land use map are more completely defined.  For single-family areas, the plan says this:

“Single Family Residential Character Areas comprise the majority of both existing and future development in Kaysville. These areas consist of established neighborhoods with a range of single-family residential uses, types and forms, and are often auto-oriented in nature. Neighborhood street layouts vary, with older neighborhoods and the historic core marked by traditional street grids and newer neighborhoods utilizing meandering or cul-de-sac road layouts and block patterns.
As Kaysville is largely a family-oriented bedroom community, this character area is consistent with established values that are hoped to be maintained into the future. Larger vacant and undeveloped properties are encouraged to develop as Conservation Subdivisions, which would provide a variety of single-family housing types and forms, and clustering development and open space in a manner the can preserve the small town, pastoral and open feel of the City.”

The point of this language is to allow for a variety of housing types in single-family areas, not just large-lot single-family detached homes, per the concepts discussed above.

It takes all kinds!

IT’S NEVER REALLY OVER…

December 3, 2021

In my post from a couple of days ago where I quoted The Economist column saying that relaxing planning laws can be politically poisonous, let me expand on that with a recent piece in the Los Angeles Times.  The story shows the various ways that local governments in California are finding to essentially circumvent the recently enacted legislation that mandates that all residential zones throughout the state must allow for housing of up to fourplexes on any property (essentially ending exclusive single-family zoning).

We human beings are an inventive lot, as this story shows.  Here’s a few quotes from the story:

“Under a proposed regulation in the city of Pasadena, for instance, those building under SB 9 may have to plant a “minimum of two mature trees on-site” from the city’s list of native and protected species, a provision that is likely to add costs to the project.”

“…local plans are aiming to limit the size and height of new development, mandate parking spots and require that such housing be rented only to those making moderate or low incomes.”

“…those wanting to split their lot to build more housing must intend to live on the property for at least three years afterward.”

“(Redondo Beach Mayor Bill) Brand, who is promoting a proposed 2022 state constitutional amendment restraining the state’s ability to override local development rules, believes that many cities may pass regulations… testing the limit of what’s allowed.”

In reaction, the primary sponsor of SB9 and of a number of other similar measures said:

“It’s unfortunate that some of these cities are trying to obstruct state law instead of embracing new housing, but that’s the world we’re living in,” said state Sen. Scott Wiener (D-San Francisco).

Politcally poisonous indeed!

You can read the full story here

‘TIS THE SEASON

December 2, 2021

Things are heating up on the legislative front as we get closer to the January start of the 2022 state legislature general session.  The Land Use Task Force continues to meet, but it sounds like they have still not settled on any specific bill language on the issues they’ve been discussing.

Here’s the current list of pre-filed bill titles that have been submitted for the upcoming session that have to do with land use. There are several others that might relate to land use as well but also may not, we’ll just have to keep an eye on them and see.  As has become more common lately, several of these bill titles portend measures that have not been discussed by the LUTF, and may be surprises. Always makes for interesting sessions!

Urban Farming Amendments 

Food Truck Licensing Amendments

Child Care Center Zoning Amendments

Water Conservation Requirements

Transportation Amendments 

Affordable Housing Amendments 

Commission on Housing Affordability Amendments 

Housing and Transit Reinvestment Zone Amendments 

Resort Communities Affordable Housing Requirements 

Short Term Rental Modifications 

Utah Housing Affordability Amendments 

Mandatory Electronic Plat Recordation 

Municipal and County Land Use and Development Revisions 

Public Infrastructure District Amendments 

High-density Recreational Trail Development 

Landscape Zoning Requirements

WELL, IT’S COMPLICATED…

December 1, 2021

The Economist has had, over the last year or two, a number of stories about the rapid escalation in housing costs in the U.S., U.K., and other rich countries around the world.  It attributes the problem (correctly, I believe) to a number of factors, one of which is lack of flexibility in local land use regulations.

It all just goes to show that solving the housing affordability issue will not be easy, and certainly not just by focusing on one of the many contributors to the problem.

Case in point, last week’s issue had a story and an opinion piece about whether the increased presence of corporate investors in buying up homes and rental properties is contributing to the crisis.  The basic conclusion is that it is not a major factor, and that it may in fact be spurring more housing production.

The editorial piece, titled Barbarians at the Garden Gate, concludes with this paragraph which I think helps portray the complexity of the issue.  The bolded text are my comments inserted.

“The crux of the problem is a lack of supply in the places where economic opportunities are greatest (that is, the hot economic metro areas, which includes the Wasatch Front).  Some say the answer is higher interest rates or macroprudential tools, such as restrictions on the amounts that banks can lend. These policies would temper demand and price growth, but would not bring the economic benefits of letting successful cities grow (because raising interest rates will affect all economic activity, not just financing for homes). Some favour loan schemes for first-time buyers, but these only inflate house prices—failing both homebuyers and taxpayers (because it would just add more eligible buyers to a market that already suffers from over demand). Straightforward solutions such as relaxing planning laws can be politically poisonous (there’s no question that some local land use regulations limit the ability of the housing market to provide for variety and availability, but pushing forward with the appropriate changes would likely result in electoral massacres of a lot of elected officials, as acknowledged by The Economist editors). Britain seems to have shelved a proposed planning reform that would have encouraged more house-building.”

So what to do?  I guess that’s what’s keeping us all up at night trying to figure it out….

MORE ON STATEWIDE GROWTH POLICY

November 30, 2021

So if state officials have been reluctant to approach big-picture growth issues with statewide policies, as I noted in the previous post, does that mean they won’t in the future either?  The much discussed Utah Lake Authority is just the latest example of this tactic.

The big issue in growth talked about for the last few years as been housing affordability, here and in other states (and even in other first world countries). Will our state legislature consider statewide policies and mandates for local officials to abide by?  Something more than advisories and recommendations?  This certainly seems to have been the case in other states, as places like California and Oregon have adopted requirements for local zoning standards, ranging from TOD allowances to prohibition of single-family zoning.

We’ve already started down that path here, as evidenced by requirements for beefed up moderate income housing plans (not just advisory any more, with likely more to come), mandates for accessory dwelling units, and limitations on residential design standards.  Will things go even further in the upcoming legislative session?  It looks very possible.

These statewide mandates are often triggered because local jurisdictions are judged to not be adequately dealing with these affordability issues. Frequently it seems that any such attempts by city and county officials are cut short because of strong NIMBY reactions.  But these same local officials are generally heard to say that these local growth and land use policies are best dealt with at the local level.  I’m not sure that for some of these really tough problems that that is necessarily true. It can be very challenging to deal with self-interested citizens, particularly when the understanding of what the real issues are is so limited. Local officials don’t really have the time, budget, or ability to carry out such “education” and discussion.

Some state officials have suggested that it might be beneficial to have statewide policies put in place to, in effect, “give cover” to local policy makers, providing the justification that the state is requiring it and locals have no choice.  League of Cities leaders have said, however, that locals are not asking for cover.  But that is exactly what I heard one councilmember say in the recent session on this topic at the Utah Land Use Law conference, so…

The bigger question may ultimately be not who should be adopting and implementing these new policies, but has enough consideration gone into them beforehand?  There’s some recent research out there on the effectiveness of statewide growth policies. More on that upcoming in a future post.

SMART GROWTH, BIT BY BIT

November 29, 2021

In it’s November meeting, the legislature’s Political Subdivisions Interim Committee discussed a bill that would, if passed, establish a Utah Lake Authority. https://le.utah.gov/MtgMinutes/publicMeetingMinutes.jsp?Com=INTPOL&meetingId=17750

A similar bill was introduced during this year’s general session back in January, but did not advance far because of ongoing discussions about the scope and particulars of the Authority. https://le.utah.gov/~2021/bills/static/HB0364.html

Utah Lake has been the subject of concerns about its state and future status as development has surrounded it.  The lake’s environmental condition has been a big problem. Several years ago the legislature created the Utah Lake Commission, an advisory body to study issues surrounding the lake, make recommendations and coordinate among the various entities touching that body of water.

You may recall a proposal a couple of years ago for creation of islands in the lake for development, the profits from which would allow for rehabilitation of the lake environment, all of which has been rather controversial.  Here’s a good summary of recent lake issues https://www.deseret.com/utah/2021/10/20/22714414/utah-lake-environment-islands-proposal-farming-ranching-utah-legislature-politics-population-growth

The point of my post today is not so much to talk about the specifics of Utah Lake, but to consider how the state deals with land use and growth issues at the statewide (or regional, multi jurisdictional) level.

Back in the 1990s, broad overall growth issues were of concern in states all around the country. A state-level approach that got the term “smart growth” was coined, and took off in places such as Maryland, Florida and Washington state, among several.  In Utah, there was talk about state-level growth policies, but not much appetite for putting them in place, as the sacrosanct nature of leaving growth planning decisions to local communities held primary position.  Utah officials kind of bristled at the idea that if they didn’t adopt statewide “smart growth” policies, that meant their approach was therefore considered “dumb growth?”

But state level topics were eventually brought up and implemented in what was called “Quality Growth”.  Most all of these policies were, however, advisory only.  Was this approach successful?  Well, the state Quality Growth Commission still exists, but they meet very infrequently and usually only deal with allocation of money for open space preservation, when there is any.  Tony Semerad of the Trib wrote a good retrospective of this effort last year, and makes the case for a shift in focus for transportation funding that grew out of this, but beyond that? Well…. https://www.sltrib.com/news/2020/07/11/over-years-ago-utah/

In actuality, it looks to me like we here in the state of Utah take a case-by-case approach to issues of statewide or regional importance.  Like the proposed Utah Lake Authority, we’ve created other entities to deal with such issues, like MIDA (Military Installation Development Authority), the Inland Port Authority, the Point of the Mountain Authority, and so on. These entities are often vested with, among other things, land use powers (the Utah Lake Authority would have that power for all land encompassed by the lake, which would include the potential islands).  This issue was the primary topic explored at this year’s Utah Land Use Law conference https://utahlanduse.org/wp-content/uploads/2021/08/2021Brochure6p12.pdf

Is this a good approach? Could or should this extend to such less location-centered issues like housing affordability?  More on this in future posts.

WELCOME TO OUR TOWN – NOT!

November 24, 2021

One of the latest “fronts” in the wars over new and “different” development, is annexations.  Just take a look at recent items that have made the news – Erda http://tooeleonline.com/property-owners-try-to-avoid-future-erda-city/   Providence https://www.hjnews.com/news/government/mixed-density-housing-development-still-dividing-providence-cache-valley-residents-as-election-day-nears/article_d0efcc18-3000-54e7-8ce8-916c8fb8cc86.html   Plain City/West Weber   https://www.standard.net/news/government/2021/feb/05/western-weber-county-incorporation-annexation-pushes-on-hold-but-growth-continues/

and of course the infamous Hideout situation https://www.kpcw.org/local-news/2021-10-26/hideout-dealt-another-legal-blow-annexation-likely-headed-to-appellate-court

There are others as well.  These battles prompted several bill proposals in the last legislative session, and another being discussed currently by the Land Use Task Force (about third party standing in legal challenges to annexations).  Shannon Ellsworth, a good friend and AICP planner who is currently an elected member of the Provo city council, asked that I summarize the various postings I’ve done in the past on this topic, which I will do.  But bottom line is something I’ve been saying and advocating for a while – Utah’s annexation code badly needs a comprehensive recodification. That probably won’t solve all the issues around annexation and opposition to development, but one thing’s for sure, the current code is no help at all.  As pressure grows, and more train wrecks happen, maybe action will finally be prompted.

LEARN THE RULES!

November 22, 2021

The new and revised edition of the Utah land use law basics book by Craig Call is now available!  Craig has updated the previous Utah Citizen’s Guide to Land Use Regulation which was widely used as an introduction to the basics of planning and land use for many years.  This newest version, with a new title, is available for anyone interested, just jump on over to Amazon and order.

The ULUI has also recently received a grant from the Office of the Property Rights Ombudsman to provide training in land use regulation to local officials, attorneys and real estate professionals, and this book will be used as the text, so to speak, for these trainings.  These training sessions will be done in conjunction with the Utah League of Cities and Towns and the OPRO staff.  We’ve already scheduled a couple of sessions for interested jurisdictions. If you’re interested, contact us at the ULUI at this email address:  info@utahlanduse.org

LUTF UPDATE

November 19, 2021

As promised, here’s a quick update on what the Land Use Task Force is working on, from what I’ve gleaned from notes I’ve seen, from conversations, and from reports on the LUTF in League LPC and Commission on Housing Affordability meetings.

For all the frequent meeting and talking that’s been going on by the LUTF, there is really not that much that seems to be moving forward.  The main items seem to be these:

• HB409 vesting – you may recall that during this year’s legislative session, HB409, among other things, placed a 10-year limit on local governments from requiring any building or design standards on building permit applications more strict than those that were in place on the date of final plat approval. There is proposed language which would clarify these restrictions and remove the 10-year deadline, but essentially the requirement would be left in place.
• Annexation petitions – during recent annexation kerfluffles, there have been questioned raised about the standing of petitions when annexation petitions conflict with other types of actions filed by third parties, such as incorporation or other actions. Language is apparently forthcoming to deal with some of these issues.
• Improvement development standards – there has been considerable discussion over the last few years about the variation in design and engineering standards for city improvements that are required for subdivisions and other development. The PRC has expressed a desire to establish uniform improvement standards statewide, but this has been resisted by local governments because of variations in local conditions and preferences.  There appears to be some possibility that this year will see some kind of standardization requirement with possible options for justifiable variations.  This makes me think of Cam Diehl’s recent comment that if a lone or a few cities are doing something different from everybody else, expect legislation to deal with it!
• Inclusionary zoning – this looked like a policy that might get some traction this year, but it has apparently stalled over the issue of incentives/compensation for developers if they are required to provide affordable housing through IZ. I will note that in the piece I wrote earlier this year, I noted that research shows that most “successful” IZ programs around the country do include incentives for provision of affordable housing.  Not sure this will go anywhere this year.

The LUTF has also talked about the efforts to link housing with economic development programs and incentives, but this seems to be being handled more thoroughly by the Unified Economic Opportunity Commission, which I mentioned in the first post on this blog.

There has also been discussion about administrative issues with how building and development permits are being handled by local jurisdictions, but League staff are working hard to address these issues with the individual communities rather than let them lead to sweeping legislation.  And the housing design restrictions that were passed during the last legislative session have been discussed, but no agreement on what to do seems to have been reached.

HERE, MIDDLE MIDDLE MIDDLE…

November 17, 2021

A few months ago, Salt Lake County along with several partner organizations brought Dan Parolek, author and instigator of the term “Missing Middle Housing,” to Utah for a seminar on what middle missing housing is and how it works.  It was a great event, well attended, and certainly helped to point out the differences in what the public perceives to be higher density (big, multi-story, poorly designed buildings with no space and lots of traffic and, you know, “those” people) and what neighborhood-scale density can be (and has been in the past). https://slco.org/planning-transportation/regional-solutions/missing-middle-housing/

One of the sponsors was the Utah Foundation, which has taken on research into this issue because of the high concern among citizens, business people, and public officials about the rocketing rise in housing costs over the last few years.  As promised at the seminar, the first part of that Utah Foundation report is now available with excellent background and information.  As to the relationship to the high cost of housing, one of the conclusions from the study says:

• Middle housing is a possible answer in terms of prices. For instance, in Salt Lake County, the August 2021 median (or middle) sale price of townhomes was $390,000, while for single-family homes, the median sale price was $546,450.

Lots of great source material here for the development of policy about housing in our pretty, great state (that fewer can afford to live in now!).  Take a look at the first part of the study – three more to come!  https://www.utahfoundation.org/reports/middle-housing-study-part-i/

MODERATE INCOME HOUSING PLANS PROPOSED CHANGES

November 16, 2021

There is so much churn going on right now on legislative proposals for land use related topics, it’s hard for me to sort it out and share it in some reasonable manner.  But I’ll give it a go, in several different posts by topic.

First, let me give enormous credit to the League and their team (Cam, Justin, Karson, Meg and all the local level folks pitching in) for their work on this stuff.  I am stealing blatantly from their materials to give you these updates.

I’ll start with an update on what’s happening with the requirements for Moderate Income Housing Plans (MIHP).  As you know, there were some substantive changes made during the last couple of sessions on MIHPs, giving lists of policy options for communities to choose from, and reporting requirements.  In both cases, there have been issues with how this works in reality.  So, to address these, the League working with local community people and housing advocates is proposing changes which they are calling “MIHP+”.

During the past year, there has been a lot of discussion about what concerns/problems/changes with the MIHP requirements – what’s not working well, what can be done to make addressing housing more effective, etc.  The League has summarized the feedback and input that has been given on this with a list of proposals for the upcoming legislative session.  In essence, there would be more emphasis on actually implementing housing strategies, reporting improvements to demonstrate all kinds of progress, and tying such progress to preference for state and regional funding programs.  You can see the report here.

Still a lot of work to do to finalize these recommendations and actually get a bill prepared, so stay tuned.

Next, I’ll report on proposals discussed by the Land Use Task Force.

SIGN OF THE TIMES – IN U.S. SUPREME COURT

November 15, 2021

Last Wednesday, the U.S. Supreme Court heard oral arguments in the case of our very own Reagan Outdoor Advertising trying to be able to convert their non-conforming billboards to electronic in Austin, Texas.  The court’s eventual decision could have significant implications for the future of how signs are regulated, and even for the business model for billboard companies.

The crux of the matter, in a bit of an oversimplification, is that the city of Austin allows for non-conforming on-premise signs to be converted to electronic, but not non-conforming off-premise signs.  In the ruling by the U.S. Fifth Circuit Court of Appeals, the essential decision was that because of First Amendment protections, signs cannot be treated differently and regulated by their content.  In other words, if you have to read the sign to figure out how to regulate it, you can’t do that.

What intrigued me about the oral arguments and comments before the SCOTUS (Supreme Court Of The United States) was that the attorney for Reagan was not really arguing for that decision.  He essentially was saying all the court had to do was say that it wasn’t fair to treat the signs differently and overrule the Austin code.  I think the reason for him not arguing much in favor of the 5^th circuit ruling was that if it is upheld, it has the potential to seriously alter the business model for all billboard companies.  Think about it – if, as the 5^th circuit said, you cannot regulate signs by their content, then any sign could have off-premise advertising, not just those so defined.  The monopoly of billboard companies for such advertising would essentially be gone.

To that end, I just recently saw a couple of on-premise electronic signs in a local community that were not only advertising their own business, but also flashed up messages for another business in town – off-premise advertising!  Not allowed by the local code!  But very easy to do with electronic signs.  And if the SCOTUS upholds the 5^th circuit rationale, well….

How will the court rule?  Based on the questions and comments from the justices during the oral arguments, Amy Howe of SCOTUSblog

wrote, “the Supreme Court was closely divided on this question. Although some justices appeared to agree with the 5th Circuit, other justices were clearly concerned that upholding the 5th Circuit’s decision could have repercussions far beyond the ordinance that they were considering.

“Justice Brett Kavanaugh could hold the deciding vote, and he too appeared conflicted. On the one hand, he (like Gorsuch) asked Snyder why the city couldn’t address its safety and aesthetic concerns by restricting the placement, size, and number of signs, rather than restricting “anything that has to do, arguably, with the words that are written on the sign.” On the other hand, he emphasized … that these kinds of ordinances “have been around for a long time,” and that a ruling for Reagan National would impose significant burdens on “a lot of local jurisdictions around America.”

Here’s Howe’s entire entry about the court session.

https://www.scotusblog.com/2021/11/from-barbecue-restaurants-to-highway-beautification-justices-mull-implications-of-sign-ordinance-case/

A decision is not expected until probably spring or even summer.  It could cause local and state codes and ordinances to have to be completely redefined for billboards and off-premise advertising!

WHO’S ON FIRST?

Greetings!  Looks like I’m at it again, trying to get a regular on-line commentary going on what’s happening in the rapidly changing world of community planning and land use regulation in our fair state of Utah (oops, I mean pretty, great state!).  I’ve been urged on by my colleagues at the Utah Land Use Institute to do so again as a way to provide another way for all those who may have an interest in land use to keep in touch with what’s happening, and provide a place for that information to have another outlet.  So here we go!

What I want to write about in this first posting for this new blog is all the attention that is being paid again to growth and planning in Utah, mainly as a result of our rapid growth (fastest in the nation over the last 10 years!)  Such a pace usually focuses attention on what’s changing and happening in our communities because of this rapid growth, with a recent poll showing that a majority of Utahns thinking that we are growing too fast!

All this worry is being put on steroids by what’s happening with housing and affordability, causing everyone from local communities, chambers of commerce, and state officials and elected leaders to weigh in on what can be done about this.

In the past, when we’ve had such high levels of attention focused on growth, there have been groups and bodies that have taken the lead, like the Quality Growth Commission back in the 90’s, Envision Utah, the Land Use Task Force, and more recently, the Housing Gap Coalition and the Commission on Housing Affordability.

There is a body that has recently been created that really seems to be taking a more “holisitic” view of the growth issues, and has the involvement of high-level leadership from all corners – the Unified Economic Opportunity Commission.  Placed under the care of the Governor’s Office of Economic Opportunity, it would seen to be primarily focused on traditional economic development strategies and activities.  While it still does play that role, the Commission members, which include the Governor, Legislative leadership, state cabinet members, and local government leadership, have seemed to recognize the impact business growth and recruitment has on other growth-related issues.  If there is any body at the state level that now seems to be taking a more careful look at growth and how to plan for it, it seems to be this one.  The recognition of this role has even led to a proposal for the upcoming legislative session to move the Commission on Housing Affordability from being housed in the Department of Workforce Services to the GOEO.

To make my case, have a listen to the latest meeting of the UEOC.  I think you’ll agree that, with it’s heavy hitter membership, this may be the place for future discussions about state-level growth planning policies may get some legs.