All right, two of the three big land use bills appeared yesterday (the transit station area plans bill is still MIA).  I’ve had some time to peruse them and give you some of my analysis and comments on them here.  Please, feel free to email me with any comments you have as you look them over and we’ll get them out as well.  This is usually a beneficial thing as nobody can be expected to anticipate or see every possible ramification or issue with these bills, especially as large and complex as these are.  The only problem is, these bills have come out so late in the session there may not be enough  time to resolve issues, particularly if they’re complicated or controversial.

The housing bill, or what’ been called the SB34+ bill, is HB462 – Utah Housing Affordability Amendments incorporates much of what has been talked about for months by the Commission on Housing Affordability and others.  From a land use planning process standpoint, the biggest thing this bill does is make substantial modifications to the General Plan section of LUDMA for the required Moderate Income Housing element.  Instead of me describing those changes here, let me refer you instead to the white paper prepared by League staffer Karson Eilers.  Karson has done great work on summarizing all the provisions of this bill, which in addition to the MIH element changes also makes a number of changes to the Accessory Dwelling Unit provisions passed last year, to housing programs and funding, and some other things.  Just one point I’ll add to what Karson wrote as I have been asked about this by a couple of people, the language in the bill specifically allows inclusionary zoning.  Here’s the direct excerpt as one of the options that a local entity can consider implementing:

“or the adoption of a land use ordinance that requires 10% or more of new residential development in a residential zone be dedicated to moderate income housing”

As I noted earlier, this bill (and the others) are coming out very late in the session and will need to move fast if they are to make it through.  As such, this bill is already scheduled for a committee hearing tomorrow morning at 8:00 am.  If you have comments, get them in fast!

Now let me riff a little on what’s happening with the general plan provisions of LUDMA with this and other bills that are up in the legislative session.  In the state of Utah, a local government that wishes to regulate land use must do several things, one of which is it must prepare and adopt a general plan.  That’s part of the planning process, it makes total sense.  But interestingly, in Utah, under the law, general plans are not compulsory, in that their provisions are not required to be implemented.  Section 405 of LUDMA states:

“the general plan is an advisory guide for land use decisions…”

The things that have been amended into the general plan section of LUDMA for Moderate Income Housing the last couple of years, however, have a number of “mandatory” provisions.  The new language which is proposed as part of this bill also appears to tie implementing the provisions in the MIH element to eligibility for state funds.  That’s getting pretty compelling!  Another part of the bill states that the transportation element for general plans are to be “coordinated with” and not just “consider” regional and statewide transportation plans.

There is also another bill in this session, SB110 – Water as Part of General Plan, which I wrote about in an earlier post and noted that it makes very extensive and specific requirements of what is to be considered and accounted for in a new required Water element for general plans.  The entire tone of this to me suggests that the proponents intended for this to be mandatory for local governments to implement, though it does not specifically say that (maybe they did not know that general plans are “advisory only,” just speculating).

As a planner, I support the idea that general plans should have more influence on how land use is implemented in our communities, maybe even to the point that they should be mandatory (as they are in a number of other states).  But there’s been plenty of pushback on efforts to make this the case in the past from local elected officials and legal counsel.  Given the bills we’ve got before us right now, though, one could argue that we’re moving toward making plans mandatory bit by bit.  Doing it this way, however, makes things confusing for planners, local officials and the public.  Is a plan mandatory?  Language in the code says clearly it is advisory, except there are parts…  We should take this up as an issue to be resolved soon.  Either plans are mandatory, or they’re not.  Let’s not just do so for parts of it and add to the ambiguity of how the land use process works.

Okay, on to the next bill, the land use task force bill, HB474 – Municipal and County Land Use and Development Revisions.  There are a number of disparate provisions in this bill.  Let me summarize:

• It would limit who could challenge a proposed annexation in the courts to those who have standing as defined in the code, and who can petition to withdraw from a proposed annexation. (editorial comment – I can see this provision for legal challenges to the process, but an annexation is still a legislative decision in the end, which means those opposed could do a referendum on it – probably a more difficult venture, but still possible).
• When a local entity intends to change the standards for public improvements for subdivisions and development, notice must first be provided and a public hearing held.
• Repeals the provision that was adopted in a legislative bill last year that says no changes in land use regulations can be required of properties for 10 years after the final approval of a plat or development
• The standard for determining the legality of a nonconforming use or structure is to be “substantial evidence”
• The combining of lots in a subdivision require a subdivision amendment to be filed, if required by local ordinance
• Local entities must approve a condominium plat unless it violates local land use regulations
• Adds to the provisions of what is considered to be an illegal land use decision the term “it exceeds the authority granted” in LUDMA
• Adds detailed requirements for the making of boundary line agreements between property owners where the lines between the properties are ambiguous or unclear.

Okay, just a couple of other quick items of interest.

Here’s a story about the Utah Lake bills, and here’s one about why Salt Lake City is okay with the Inland Port bill as proposed.