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.