A couple of news stories that have popped up recently have given me the opening to write about something that’s been simmering on my mind for a while, partly because of actions during our just completed legislative session – state preemption of local authority.
The most recent and most germane (at least in the negative sense) was a piece in yesterday’s Trib by Robert Gehrke which featured a last minute addition to the housing bill, HB462 (see lines 3578-3582), which essentially mandates that Summit County is to create a Housing Transit Reinvestment Zone at Kimball Junction near Park City. The details are interesting and, from a local government perspective, alarming in that the legislature would intervene to such a level of detail in local processes. This story is not a good example of when state pre-emption may be warranted, but for my purposes, it does bring to front of mind again the question of, when is it appropriate for state-level officials to intervene in and override local policy processes?
If you’ve been reading my posts during the legislative session, you will know that I have been voicing support for the approach that has seemingly been taken by our legislature (and one legislator in particular, who has become the point person on all things housing and land use related) to what is generally being characterized around the nation as zoning reform intended to address the housing affordability crisis. That approach is for state officials to work with local representatives to craft mutually acceptable legislation to attempt to bring about some change to the way land use is handled at the local level. Many states around the country are going with a heavy-handed top-down approach that often, as has been pointed out in some of the previous posts, leads locals to look for ways to circumvent. I still think the collaborative approach is generally the best way to go.
But sometimes, just sometimes, maybe the locals just won’t play ball (or maybe more accurately, some of the locals). How, then are broader policies to be moved forward if they take everyone to make them happen?
I used to think about this years ago in the context of our regional transportation plans. The process that our Metropolitan Planning Organizations (WFRC, Mountainlands) used to take was to basically see what all the communities in the region were planning for, and then craft a regional transportation plan that supported that overall development pattern. Over the years, transit became more and more significant in those plans, but to make it work required that all the communities adhere to the basic pattern. To justify transit, higher densities are needed adjacent to and near planned future transit lines and stations. What if a community in the middle of the system decided, eh, no, we’re not going to do that? Then what?
This issue is explored in an interesting paper published in the Ohio State Law Journal not long ago titled Constitutional Law for NIMBYs: A Review of ‘Principles of Home Rule for the 21st Century, by Yale Law School Professor David Schleicher. The paper is broad and covers a lot of topics related to municipal home rule and state pre-emption, one of which is local land use. He talks about issues that are regional in scope and nature such as housing, economic development and transportation, and how the actions of individual communities can thwart or stymie such policies.
Some courts-particularly in policy areas such as housing and the environment-have reminded local governments of their affirmative obligation to consider the impact of local policy on others outside the jurisdiction who might be significantly affected by the government’s exercise of its delegated police power authority.
No level or type of government is perfect and there can be legitimate governance concerns at the local level. Local governments can be parochial or insular and some have undoubtedly used their authority for invidious exclusion.
… states may have a substantial interest in ensuring that home rule governments share in the social, economic, environmental, or other responsibilities of a metropolitan area or region in which they are located…
What all this means to me is that there may be times in which regional or state-level pre-exemption of local policies is warranted to achieve broader policy goals, when the local level policies seemingly ignore those broader policies. I’ve been in the land use game long enough to have seen communities that will not go along with or see the benefit of some regional or state-level goals. So, in effect, these few dictate to everyone else what will happen on the broader scene. Here’s a good example of how that happens. I’ve chosen to take from a story about Spokane, Washington (so I don’t call out some of our own local communities and make them mad and get me in trouble!)
Washington state passed a law to crack down on sprawl in the 1990s, only allowing closely built developments in and around the cities. It was supposed to drive dense development inside cities like Spokane. Instead, Spokane stagnated.
Spokane could rezone, but why would they? Neighbors — the kind who already had homes, the kinds who attend neighborhood council meetings, the kind who vote — wouldn’t have it. They worried densely packed housing brings traffic, noise and crime. They offered vague complaints about “neighborhood character” and less vague concerns that their neighborhood would be ruined by those people, you know the kind I mean. Renters.
Going back to the Summit County story, even as egregious an example of state-level meddling in local affairs as that is, Gehrke says:
At this point you might be thinking: Isn’t this the same NIMBYism we see every time a new housing project of any size gets floated?
And perhaps there is some of that. At an early hearing on the project, one Park City resident complained that “I don’t think we need Murray in the mountains.”…
Heading into last year’s municipal elections I moderated a handful of city council and mayoral debates and when candidates were asked about housing density they all gave basically the same answer: We live here because we like our way of life so let other towns deal with growth.
Something’s got to give and there is a role for the Legislature to play in Utah’s housing crisis. Dangling incentives for communities to develop HTRZs around transportation hubs…makes sense.
As I noted earlier, there are plenty of examples of where top-down mandates often lead unwilling communities to find ways to subvert those new mandates. So, how can this be made to work? No question, using a collaborative approach is a good way. If everyone works together to craft the new policies, the more likely they will be to succeed. But that’s been the approach of our MPOs for years as they put together the regional transportation plans. Local officials make up the boards of our MPOs! And still, not everyone chooses to go along.
Another recent paper by John Infranca of Suffolk University Law School, published in the Boston College Law Review titled The New State Zoning: Land Use Preemption Amid a Housing Crisis, maybe offers some hope:
(R)ecent interventions are justified by the extent of the current housing crisis; the broader effects of local zoning on housing supply, affordability, and other pressing state-wide concerns; and the exclusionary tendencies of local governments. By targeting and expressly preempting specific local laws that stymie more and denser development, rather than imposing new procedural and planning requirements, these interventions are less likely to be thwarted by local resistance. Simultaneously, by setting clear parameters for permissible local regulation, these measures are more likely to calibrate the balance of state and local power in a way that addresses both state-wide interests and significant countervailing local concerns.
The bottom line for me is there is no perfect way to deal with this. Locals can deal with these issues effectively on their own – witness what Minneapolis, Seattle, Portland, and several other communities are doing on their own – even Boise! https://www.idahostatesman.com/news/local/community/boise/article259061133.html These are good examples of locals tackling the bigger regional issues. But not everyone will, and sometimes it takes everyone to be in the pool to make it work, and then a higher power needs to intervene – we just have to hope that the higher power works for everyone’s benefit, and not for just a few.