Wow. After listening to yesterday’s Commission on Housing Affordability (CHA) meeting (which is now actually a subcommittee of the Unified Economic Opportunity Commission), that’s the main thing I have to say – Wow!
The CHA meeting yesterday was to be devoted to getting recommendations for possible state and legislative actions from it’s three working groups. All of the CHA’s work, as the name implies, is related to making housing more affordable throughout our great state. Two of the working groups – Funding and Data, gave reports and made recommendations, which were then discussed, somewhat modified, and endorsed by the CHA.
The Policy Working Group, however, chaired by Chris Gamvroulas (President of Ivory Development, the land development arm of Ivory Homes), presented only one issue – changing Utah state code to make Utah a mandatory comprehensive plan state. That’s what caused me to say Wow!, because such a change would be a major alteration in the way land use planning and regulation is done in the state of Utah.
I’m going to write more about this in future blog posts, so I won’t spend a lot of time on the particulars of what it means to be a mandatory comprehensive plan state, but to my thinking, it will change the way general plans are done because of what they will mean for future land use regulation (zoning in particular), the way we look at future community growth, and how this all plays out in the land use arena.
An excellent paper in the Oklahoma Law Review in 2007 by Nathan Blackburn (an OU Law School student at the time), Planning Ahead: Consistency with a Comprehensive Land Use, describes the many considerations and nuances of being a mandatory plan state. Just a few excerpts from this article:
The limitations placed on municipal land use regulation by state enabling statutes affects how the state courts review challenges to such regulations brought by landowners. In particular, the role that a state assigns a municipality’s comprehensive land use plan is decisive in establishing the level of discretion the municipality has in drafting zoning ordinances. States fall into one of two general categories with regard to the role assigned to a comprehensive plan: majority or minority. Enabling statutes in majority states do not require mandatory consistency with a comprehensive plan, and therefore grant local legislators more discretion to make regulatory land use decisions that fall outside the scope of their comprehensive land use plan, if a plan is even required. Minority states have enacted enabling legislation mandating that each zoning ordinance be strictly consistent with a comprehensive land use plan developed by the municipality. The minority position has the effect of limiting local legislator discretion to actions within the scope of an existing comprehensive land use plan. (pg. 86)
Each state must make a decision regarding the role that comprehensive land use plans will play in cities’ zoning schemes. The potential roles that cities’ comprehensive land use plans play fall along a spectrum. For states at the discretionary end of the spectrum, the plan serves as a mere guide for local zoning regulators, who maintain discretion to pass zoning ordinances of their choice without regard to a land use plan. For states at the mandatory end of the spectrum, a plan must be enacted and thereafter serves as binding law on local zoning regulators for every zoning ordinance passed in the future. In between these extremes, states use the existence of a plan as a presumption of validity for zoning ordinances that have been challenged as invalid, or the absence of a plan as a presumption of invalidity. (pg. 107)
As Blackburn notes, the mandatory plan scheme can fall along a spectrum of how strictly it will be required and enforced. For example, can general plans remain relatively “general” in the future land uses they anticipate for areas of the community, and does it need to be specific as to property lines? Or will it need to be much more specific, maybe even as a future zoning map, and all rezones of property are to be consistent with that plan? This is but one example of the many vagaries of changing our approach to general plans and land use regulation that should be carefully considered and discussed before the trigger is pulled. And my guess is, this will take a while, if we decide we should go this direction.
One of my concerns when I heard Chris talking about this in the meeting yesterday was that it had not been much discussed by the Land Use Task Force, or really by any other forum other than perhaps the CHA’s Policy Working Group (and I don’t know how much it was discussed there as I don’t attend those meetings). This is not a new idea – it’s been brought up before, but with the response from the local government side that something like this will take a lot of discussion and collaboration if it is to have any hope of being successfully implemented. It was a complete surprise, to me at least, that it was brought up like it was at this CHA meeting.
Cameron Diehl, the League’s executive director, told me yesterday that his members (most of Utah’s cities and towns) will lose their mind over this, as they’ll see it as a mandate from the state without any real involvement or input from local officials, who will have to enact such measures. He’s got a good point, as you will be able to see if you go back through my previous posts about the difficulty that top-down mandates in other states have had in getting implemented.
If you’re interested in this issue, it’s worth a listen to Chris’s presentation to the CHA, which you can do here. Chris’s part on the agenda starts just before the 1 hour 8 minutes time mark. It’s also interesting to note that of all the many land use issues that the Land Use Task Force has been discussion and working on over the summer, none of them were mentioned in Chris’s presentation. Only the mandatory plan proposal was brought up. Hmmmm.
I’ll be talking about this more in future posts. Let me know your thoughts, and let’s get a discussion going on this.