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.