Let’s next look at what land use ordinance changes will need to be made at the local level due to the bills passed this session.
If your land use code calls for a public hearing for a variance or appeals hearing, that is now no longer allowed. A bill passed stipulates that public hearings may not be held for those types of actions (HB368).
If you have provisions in your local code regarding how property lines between parcel or lots are to be done, you will almost surely need to change those. A bill was passed that did an extensive overhaul of the process and rules for adjusting such property lines. I just heard that the surveyors/engineers who worked on this bill held a workshop to go over what the new provisions are, and the workshop lasted for over two hours, and could have easily gone for three given all the questions that were being asked. So. I did have a couple of planners look this bill over at the beginning of the legislative session, and the comments back were generally positive about what the bill did and now requires. You just will likely need to update your code (SB104).
You may recall that prior to the session, I had indicated that it seemed like a sure bet that the provisions for parking were going to be addressed this session. Indeed they were, but on a rather limited basis (SB181). For all jurisdictions that are required to comply with and file MIHP reports, the state code now stipulates that for all one- and two-family homes and townhouses, that there is a standard size for what is to be considered a parking space, that tandem parking must be counted as two spaces, and that the space inside a garage is to be counted toward minimum parking requirements. The same bill also stipulates that these jurisdictions cannot require a garage for an owner-occupied affordable home (defined by the bill). Check you local codes for compliance. Other parking provisions, like for commercial uses, were not touched.
If there are any sand and gravel pits in your community that you regulate, your local code will likely have to change, rather substantially. You’ll need to read over HB355 carefully. The new provisions in this bill define an existing legal “critical infrastructure materials use” as one that has been in operation for at least 24 months, or has a valid local permit. Such an operation is allowed to expand and include other types of operations by right, and also to expand to any adjacent properties the operation may own or control prior to May 7, 2025. Before expanding, it must provide notice to the local legislative body, who shall hold a hearing within 30 days. Following the hearing, the operator may expand unless the local body finds, by a preponderance of evidence, that the expansion would be a danger to public health, safety or welfare. In such a case, the local body may only require “reasonable” mitigation measures. There’s more detail in the wording of this bill, so peruse it carefully.
There are now provisions for how to deal with “identical” building plans for homes and how they are to be reviewed and approved on an expedited basis, and what fees can be charged (HB368).
There are a bunch of new provisions for how to deal with developer-built public improvements and landscaping, how to bond for them, and how to release those bonds following inspections, and restrictions on holding up building permits and/or certificates of occupancy for completion of such improvements (HB368)
For counties, there are changes to what is now considered to be a minor subdivision (HB255),and exempts high tunnels from regulation (HB435).
There are new and changed provisions for regulation of storm water runoff, particularly at construction sites (SB220).
And finally, and most confusing, each municipality and county will need to include in their land use codes a process for “classification of new and unlisted business uses” (SB179). When I first saw this bill appear, I argued that this was not needed, that most jurisdictions (at least those I was familiar with), if a new use was applied for that was not specifically included in their zoning code, had a process to determine if it was “similar” to existing uses and could therefore be allowed. If not, there was always the option that the applicant could petition for an amendment to the zoning code to allow it. That’s what it appeared that this bill was stipulating. I was told it’s no big deal, especially if everyone is already doing something similar to this, so not to worry. I should have worried. At the least, I should have paid more attention to the specifics of the wording as the bill moved ahead.
First, the bill requires that this process must be incorporated into the entity’s land use ordinances. It then requires there is to be a “list of criteria” to be used to determine if a new use “aligns” with an existing use (not sure just what those criteria would be). The bill goes on to say that if the use is determined to be new or not allowed under the existing list of uses in the code, the applicant can apply to the “legislative body” to “consider and determine whether to approve or deny the new or unlisted use.” I thought that just meant applying to amend the zoning code, since it is asking the legislative body to make that decision. But the code then goes on to say that if the legislative body denies the application, it can then be submitted to an administrative appeals process.
Whoa! Hold on there! I was reading that to mean that a legislative decision (amending the zoning code) could now be subject to an administrative appeals process! That’s not right! What is going on here? So I called up a couple of my most trusted land use attorney friends and asked them about this, and got a couple of different, but equally confusing, answers. First of all, one of the attorneys told me that the bill does not say that the decision is an amendment to the zoning code. Hmm. To me, I said, this then looked more like a variance process, but for use, which is specifically prohibited in LUDMA. One of the attorneys said no, it’s more like a “special exception,” a process that had been in the original State Zoning Enabling Acts that were written and adopted in the mid-20th century (these were removed from Utah’s LUDMA a number of years ago, as “conditional uses” took over that role). But the kicker here was that this bill was calling for that decision to be made by the legislative body, which most land use professionals try to shy away from nowadays because such bodies are just not very good at making “administrative” decisions. My other attorney friend said that this looked more like a process that could be made by some smaller set of members of the legislative body (because a decision made by the entire body is defined elsewhere in state code as being a legislative decision), which could then be appealed – but appealed to who? And what happens after that? Is the code amended? Does the code need to be amended? It’s all very confusing. Certainly my two attorneys were as confused as I was by it (just in different ways). Anyway, bottom line is, all local entities are required by this bill to adopt this process, but just what is the process, and what does it do? I think we need some work on this.
Ta-da! That’s enough for you all to take in for today. There are still a number of provisions in bills that were passed that will required changes in the way land use administration is done that don’t necessarily require local code changes, and we’ll get into that in coming days.