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.