Tuesday, April 12, 2005

More on "Ballot Box Zoning"

Today's Deseret News story about the Supreme Court hearing on the Sandy Wal-Mart rezone referendum is more complete, telling a little more about what was argued in front of the justices (see earlier blog entries on this topic).

The story notes that in their arguments, attorneys (finally!) made a distinction between administrative and legislative actions. Sandy's attorney seems to be trying to demonstrate a difference due to the scope of the action, arguing that the zoning approval for the project "did not conflict with the city's long-term plans for the gravel pit and therefore was not a drastic divergence," and thus should not be subject to referendum.

This approach seems to say that if a rezone is consistent with the general plan, it is not so much a legislative action, but more of an administrative one.

But most city attorneys I have talked to say they want to maintain a clear understanding that plans are only advisory, and any rezone action, however small, is distinctly a legislative action.

This story doesn't indicate if the argument was raised that the Utah Code says a rezone of individual properties is not a "local law," and thus is not referendable. Perhaps it was raised, but I have not seen it in any of the court cases on zoning referenda so far.

If the court were to address this issue head on, I wonder how it would fare? Would they allow this "exception" to taking to referendum other clearly legislative actions, stand?

The DesNews notes a decision by the Court is expected within a month. Stay tuned, this could be interesting.

All this plays around the issue of whether "ballot box zoning" is a good idea or not. Cynthia Long, one of the plaintiffs in the Sandy case, said after oral arguments were heard by the Court, "I think what's at stake is the citizens' right to get involved. If you disagree with what the administration is saying, then what is your only option?"

Which all begs the point, what value is the general plan and planning in general, if it is conducted with clear and substantial public involvement? Any planner knows that you can never get 100% agreement on a community general plan. "Ballot box zoning," in essence, allows any relatively small group to challenge what is proposed in the plan and expressed in zoning, and put the whole question on an up or down vote.

While I respect and support the need for citizens to be able to challenge laws and ordinances directly through referendum, perhaps the business of planning and land use regulation is a little different. The public gets its say and its involvement in the development of the general plan. That is where the citizens should be involved. If we allow anyone to challenge a duly developed and adopted plan any time new development is proposed, what have we done to the community-wide planning process?

And yet... and yet, the Utah Code maintains that general plans are advisory guides only, and that zoning actions do not necessarily need to follow the plan. So what are citizens to do if they've worked hard in the general plan process, have what most think is a good plan, and then the council votes to approve a rezone that is not consistent with that plan? Maybe then the ability to allow citizens to take such actions to a referendum is appropriate.

We can't have it both ways, folks. This is one area with no easy answers. It will be most interesting to see what the Utah Supreme Court says soon.

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