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.