Since today is the deadline for moderate income housing reports to be submitted for those communities required by state law to do so, I thought it might be a good time to acknowledge the change in long-standing policy on the role of general plans that has been wrought by the MIH legislation.

Most of you are aware that in the State of Utah, general plans are advisory in their legal effect.  In other words, everybody has to have a plan for the future growth and development of their community, but it only serves to “make suggestions.”  Cities and counties are not required (though as planners, we think they should do generally) to make land use decisions in conformance with their general plans. (This link shows which states require land use regulations to be consistent with general plans, and those in which the plan is only advisory-includes Utah.)

It appears, however, that that may not be the case in Utah any longer since the MIHP was made a required element of the general plan by legislative action a few years ago, and through the subsequent legislation to beef up the MIHP requirements and reporting.  I’ll explain.

The Utah code language for the MIHP element of the general plan is very detailed about the purpose, goals, and specific policies to be considered and included.  That of itself is not very unusual (though it is much more detailed than most other elements).  What is different is that there is an implementation plan required as part of the element, for a five-year time frame.

Still, nothing in the language makes any of this mandatory that I can see – it is strongly suggestive, but not compelling.  Where things get more “directive” is in Section 408 of LUDMA, which requires an annual report to be submitted to the state detailing the progress made in the previous year toward achieving the goals specified in the plan.  This is getting pretty close to making compliance with the plan in land use actions compulsory, but maybe still not quite.  What makes it somewhat more compelling is the provision that if the state decides that the actions reported are “inadequate,” the community will no longer be eligible for certain state funds and grants.  While not absolutely requiring conformity with the plan, such a consequence can be a strong motivator.

Where things get a little dicer in my mind is the way the subsequent determinations of compliance or non-compliance will be made by the state reviewing agency.  Among a list of things in state code that are to be reported by the municipality is this one:

identify a clear correlation between the specified municipality’s land use regulations and land use decisions and the specified municipality’s efforts to implement the moderate income housing strategies.

To comply with this code section, state staff recently sent this response to a colleague of mine when she asked about how to report a denial of a rezone application (which under the “plan is advisory” doctrine is entirely appropriate):

“If the city has a rezone request that would meet the requirements for the MIH strategy but it is not approved by council, please complete the strategy actions and land use decisions sections to describe the steps taken. In the barriers section describe why the request was not approved and the next steps to implementing the strategy. The justification of why the rezone was not approved must be specific, detailed, and evidence based. The city will need to rely on plans, policies, or assessments and describe a relevant reason which led to the decision not to approve the rezone as they draft this section, because barriers like public clamor or council turnover will not be accepted. If the next steps are not included in the current implementation plan, an amendment to the moderate income housing element may be needed.”

This raised a whole host of other questions with my colleague, such as “well, okay, the council may not have approved this rezone application.  But the implementation timeline is 5 years, so there may still be time for other rezone applications to be made and considered that would make the city compliant with its implementation plan.”  That alternative is not given any weight in state staff consideration, apparently.  Also, she asks what if the proposed project is not a good one for the neighborhood and community due to design, scale, past performance, etc. etc. and is the reason why the rezone application is turned down.  Is that an adequate rationale?  Will the community thus be put in the position of state staff determining whether a legislative decision made by local elected officials for their local situation is not acceptable?

Lots of questions here.  It’s going to be interesting to see how this plays out, particularly if some of these questions land in the courts.

Now, beyond the MIHP, it appears to me that other elements of the general plan could also be subject to a similar process.  In essence, the general plan could be made, with a process similar to the MIHP reporting, so that conformance is virtually required.  There are those who have been arguing that Utah should be a mandatory conformance state and no longer just advisory.  The playbook of how to make that happen may have already been written.