If I could characterize the impact of this year’s legislative session on local land use planning and regulation, I think I would call it the Year of the General Plan.  Some of the most significant changes in how we do land use in the state this year were amendments that were made to LUDMA in Section 4 – General Plan.

Section 4 of the LUDMA chapter says that “in order to accomplish the purposes of this chapter (LUDMA), each municipality/county shall prepare and adopt a comprehensive, long-range general plan for present and future needs of the municipality/county, and growth and development of all or any part of the land within the municipality.” (The counties title says something similar, a little differently).  In other words, if you want to plan for and regulate land use in your community, state code requires that you have a general plan.  Section 4 then goes on to list the various things (called elements) that are to be included in a general plan, some required and some optional.  The only required elements just to a couple of years ago were a land use element and a transportation element.  That was it.  There were a number of optional elements listed, like an environmental element, a public facilities element, a historical preservation element, and so on.  The provisions for what was to be considered in these elements was very minimal.  Over a period of time, however, the code was tweaked to give some more definition to what should be included in the required elements, but still was quite general, allowing for a lot of variation in what each entity decided it needed to address and to what level of detail.

All this was fine because, even though general plans are required by state code, their applicability to the regulatory side was not nearly as strong.  Part 405 of Section 4 says, “…the general plan is an advisory guide for land use decisions…”.  In other words, though each entity is required to have a plan, it is not mandatory that the plan be followed.  Utah is one of a number of states in which community general plans (often called master plans elsewhere) are not held to be compulsory in dictating land use decisions.  A number of other states do make them compulsory, but not here.  Therefore, plans in Utah act as a guide for land use decision making, just not as a firm template.  There are exceptions in which counties can by ordinance make them mandatory for their actions.  Part 406 of Section 4 states that no public facilities can be constructed or located in a community unless it conforms to the general plan.  And Part 405 even says, that “the impact of (the plan) shall be determined by ordinance.”  This implies that a community may be able to make it’s plan mandatory for itself, but it is not required to do so.

A couple of years ago, because of the growing intensity of the housing affordability issue in our state, the requirement for having a moderate income housing (MIH) element was added to Section 4, moved from elsewhere in the state code which required communities to have a moderate income housing plan.  It was felt, I believe, that putting it in LUDMA Section 4 would give the requirement more weight, make it more visible and apparent to local officials, and hopefully result in better compliance than what had been occurring previously.  The requirements for this element were rather more extensive than for the existing elements.  Local officials had less flexibility in the way they had to go about preparing a MIH for their general plan, and requirements for reporting progress on meeting the goals of the MIH were also added to Section 4. And then last year, SB34 revamped and added some more provisions to the MIH element.

Adding the MIH element and reporting requirement to Section 4 now gave the general plan somewhat more of a mandatory character. However, not everyone was complying, in part because, I think, the general plan is not compulsory.  Also, it was found that some of the data source references listed in the element needed to be changed, which required amending the code itself through legislation.  This indicates to me the peril of putting mandatory provisions into a section of code that in and of itself is not required to be followed.

In this year’s legislative session, several important things were added to Section 4 for communities to consider in planning for their futures.  These included a new water planning element, a transit station area planning element, and revamping of the MIH element.  All of these are worthy and important things that we should be taking into account as we plan the futures of our communities.  But I am somewhat worried about the level of detail that is being required in these new planning elements.  It will challenge the ability of many communities, particularly the smaller ones, to be able to address all the things that are required, and will lead to cookie cutter solutions, essentially the same from community to community, to meet the stipulations that are in the code.

Let me give you an example of what I mean.  Before any of the MIH language was added to Part 403 of LUDMA, the entire part was comprised of a total of about 85 lines of language.  The MIH element requirements included the last couple of years added about another 65 lines to the section, for a total of 150 lines.  This year’s changes to the MIH element in HB462 added another 35 lines of code.  The newly added water planning element (SB110) will add 55 more lines of code, and the station area plan element will add a whopping 230 lines of code, by itself more than doubling the size of Part 403.  In addition, the reporting requirement for the MIH element, which has it’s own part in Section 4 (Part 408), with this year’s bill will go from 25 lines of code to 150.

Wow!  As good as the requirement to plan for these things is, does it really need that much detail?  By way of comparison, here’s what Part 4 says now what is required for the land use element:

a land use element that:

(A)

designates the long-term goals and the proposed extent, general distribution, and location of land for housing for residents of various income levels, business, industry, agriculture, recreation, education, public buildings and grounds, open space, and other categories of public and private uses of land as appropriate; and

 

That’s it!  Nine lines of code! With that, we get an amazing variety of land use provisions in community general plans, that are pretty much tailored to what each one feels is appropriate and desired for them.  Not always perfect, but some are very extensive and detailed, others not so much.  But each seems to fit the needs and character of that place.  The current language for the transportation element is not much more.

Now comes the new water planning element with 55 lines of code, and the SAP element requirements with 230 lines!  These requirements include language like:

(ii) shall include a recommendation for:
221          (A) water conservation policies to be determined by the municipality; and
222          (B) landscaping options within a public street for current and future development that
223     do not require the use of lawn or turf in a parkstrip;
224          (iii) shall review the municipality’s land use ordinances and include a recommendation
225     for changes to an ordinance that promotes the inefficient use of water;
226          (iv) shall consider principles of sustainable landscaping, including the:
227          (A) reduction or limitation of the use of lawn or turf;
228          (B) promotion of site-specific landscape design that decreases stormwater runoff or
229     runoff of water used for irrigation;
230          (C) preservation and use of healthy trees that have a reasonable water requirement or
231     are resistant to dry soil conditions;
232          (D) elimination or regulation of ponds, pools, and other features that promote
233     unnecessary water evaporation;
234          (E) reduction of yard waste; and
235          (F) use of an irrigation system, including drip irrigation, best adapted to provide the
236     optimal amount of water to the plants being irrigated;
237          (v) shall consult with the public water system or systems serving the municipality with
238     drinking water regarding how implementation of the land use element and water use and
239     preservation element may affect:
240          (A) water supply planning, including drinking water source and storage capacity
241     consistent with Section 19-4-114; and
242          (B) water distribution planning, including master plans, infrastructure asset

243     management programs and plans, infrastructure replacement plans, and impact fee facilities
244     plans;
245          (vi) may include recommendations for additional water demand reduction strategies,
246     including:
247          (A) creating a water budget associated with a particular type of development;
248          (B) adopting new or modified lot size, configuration, and landscaping standards that
249     will reduce water demand for new single family development;
250          (C) providing one or more water reduction incentives for existing development such as
251     modification of existing landscapes and irrigation systems and installation of water fixtures or
252     systems that minimize water demand;
253          (D) discouraging incentives for economic development activities that do not adequately
254     account for water use or do not include strategies for reducing water demand; and
255          (E) adopting water concurrency standards requiring that adequate water supplies and
256     facilities are or will be in place for new development; and
257          (vii) for a town, may include, and for another municipality, shall include, a
258     recommendation for low water use landscaping standards for a new:
259          (A) commercial, industrial, or institutional development;
260          (B) common interest community, as defined in Section 57-25-102; or
261          (C) multifamily housing project.

Sorry to quote so much new code language, but I do it to make a point – do we really need that level of detail in Section 4 of the state code on General Plans to get communities to plan for water supply and conservation? As I said before, I think we’re in danger of overwhelming our citizens and our planning staffs with detail and mandates.  Why not have the general level requirement in this section of code similar to the language for the land use element, and let communities come up with their approaches to it?  And if it is felt that more detailed is needed to guide or direct communities, would it be better to charge a state agency with rulemaking authority to come up with some more detail?  Now any time we find that any of these details are not working or need to be changed, we will have to go to the legislature to amend state code.  And the SAP element section is even more detailed.  I would argue this is overkill.  And it is particularly overkill in a section of the code that by its very nature is “an advisory guide.”  I would also argue that with these changes, the general plan is no longer advisory only.  Some parts sort of are, and some are not.

By making the code this long and complex, we are discouraging our citizens who are charged with accomplishing planning for our communities, our planning commissioners and elected officials, from reading and understanding and embracing the policies embodied in our state code.  I think we’re getting to the point where we need to rethink Section 4 of LUDMA – should it be it mandatory? Is it a policy level declaration, or a detailed technical blueprint? (I would argue that our state code should be policy level, and technical detail should be carried out at the rulemaking level, outside of state code).

I’m happy to have discussion about this.  Let’s see if we can get a forum going to work this through.