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!