Wednesday, April 06, 2005

To Vote, Or Not To Vote...

The issue of putting zoning actions up for a referendum vote surfaced again this week when the Sandy Wal-Mart petition was argued at the Utah Supreme Court Monday -- see Tribune story.

A similar effort in Riverton last year was the subject of a lot of maneuvering and even resulted in a couple of bills in the last legislative session -- see an earlier story in the Deseret News for a summary.

In Utah, citizens are allowed to subject state laws and local laws to a referendum vote, if they can get enough signatures and meet other fairly stringent requirements to do so. The key term here, though, is "law." It is generally understood that administrative actions, such as the approval of a conditional use permit or subdivision plat, are not subject to the referendum process.

Rezones, however, are legislative actions, right? So they should be subject to referendum. Not so fast. Take a look at the definition of "local law" in the state code -- it specifically says, "'Local law' does not include individual property zoning decisions."

Some have argued that a rezone is simply an administrative action, implementing the land use on property envisioned in the general plan. But local officials, in an effort to maintain maximum flexibility, have maintained that a rezone is a legislative action. However, when it comes to referendum law, that particular legislative action is removed.

What is interesting to me is that in the Riverton and Sandy situations, the argument doesn't seem to be made that these rezone actions are just simply not referendable. Why is that? Are the attorneys hoping to not raise the question before the court of whether such actions really can be exempted?

Is it a good idea to allow rezones to be referendable? There is a rather substantial debate about that going on in the planning profession right now. In San Francisco at last month's APA National Conference, a policy guide on ballot box planning, as it is called, was supposed to be debated and voted upon. However, the issue was complex enough, and split enough, that more time is being taken to flesh things out.

Lora Lucero, a land use attorney in Albuquerque, has prepared a draft issues paper on the topic, presenting the arguments for and against. She says, in part, "Proponents of planning at the ballot box assert it provides the greatest amount of local control over a quintessentially local issue and that it enfranchises local citizens, provides residents with the authority to shape their own communities and directy address problems associated with growth. They have also claimed that the ... referenda powers act as a check on public officials who 'only pay lip service to extensive public participation and actually try to restrict it.'"

Opponents, Lucero notes, are concerned that ballot box planning often occurs where incomplete or distorted information is all that is available to the general public as they consider what are often complex and changing conditions and circumstances -- that the deliberation and examination cannot take place that occurs in a more "objective" setting where opponents and proponents have their chance to make their case before a deliberative body. Often, ballot questions are presented in stark "yes-or-no" format, when the actual solution may be more nuanced.

California is probably the extreme example of ballot box planning, with tens and hundreds of local land use actions on the ballot every election throughout the state. The uncertainty that such a system exists under is something that many fear.

My question is, do we really want to go down the road of opening up rezone decisions to ballot box procedures? Does such a system really do justice to the complexity that exists in many such proposals? Why do we have elected officials, if not to make these kinds of decisions in a measured, deliberative way? Will residents really approve anything other than single-family zoning?

I'd like to hear from you all on this one.


At 10:44 AM, Blogger Planski said...

No, not Riverton again, and Sandy, too. Let's see, local citizens v. WalMart and Boyer rezones. will this be?

Anyway, the issue at hand is the heart of our representative democracy. Aside from the intersting procedural way Riverton approved zone changes at the end of terms of council members, the ballot box is not the place for rezoning decisions. I will fail to quote from the Federalist Papers as Mayor Mont Evans did in support of the Council's decision. But, the point is: do an irate group of citizens present any more of an informed decision than the Councilor's who have Staff, Planning COmmission, Master Plans, and direct access to the technical information? Is politics corrupt? At times, yes. Do cities zone for dollars? Yes, but that is how the legislative framework of sales tax distribution works out in practice. This is a tough one for a closet progressive, but I must hide those crazy thoughts in public. But, after being at hundreds of hearings, I continue to question what the Planner's responsibility to the public really means. Are we experts? Do we know more than them? Does that mean we are arrogant or conceited? Should we just let the popularity politics of petition signing being passed around the ward govern? Wow. that is heavy stuff.

Someone once told me, democracy is the worst form of government...except for all the other ones. Not sure what to think about that statement, but it was told to me, so I am sharing it with you.

At 1:35 PM, Blogger Wilf said...

Interesting thoughts, Planski. I too used to think that certainly with all the time and work we spend on creating plans for communities, certainly we (and the planning commissioners and council people) would have a better handle on if a rezone is appropriate or not.

But do we really? I recently read a book called The Wisdom of Crowds, which really makes a great point that a large, diverse group will overall make better decisions about many things than any "expert" or homogenous small group (is that what our PCs and Councils are?) can. So maybe zoning by ballot box really is the best way -- or is it? Does an election really represent all the diversity and broad, varied interests in a community, when our voter turnout, especially in non-general elections is often way below 50%.

At 10:22 AM, Blogger Planski said...

The ongoing experiment of how to govern people. At the very least, we must remain thankful that some dictator doesn't just tell us what to do or put their presidential palace there. Good points, there is no perfect way, but we will keep trying.

At 10:16 PM, Blogger Lora Lucero said...

The APA amicus committee filed an amicus brief in the S.D. Supreme Court recently in a case involving whether or not a conditional use permit is a legislative act (and subject to a referendum) or an administrative act not subject to direct democracy. You can read this amicus brief (Moody County) at

I believe that the implications of direct democracy on the planning profession are profound.


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