Sunday, May 15, 2005

Back to the Ballot Box

I am convinced that ballot box planning and zoning will be a big issue for us here in Utah in the near future. There are a lot of local actions of late that are becoming the subject of challenges by local citizens and also by interest groups. Cases in Sandy, Riverton, Cedar Hills, and even Ogden and Centerville are some of the most recent examples.

California has long been the poster child for planning run amok through the initiative and referendum process. Elections in the Golden State usually see dozens of local plans, policies and development ordinances on the ballot for up or down public votes. Such actions have generally resulted in a higher cost of doing development business there. A study by Samuel Staley, reported in the APA Journal, seems to indicate that ballot measures are running up those costs in Ohio.

And, of course, the passage of Measure 37 in Oregon last November is a good example of how measures are often misunderstood, or at least not fully understood, by the public (though some argue that follow-up survey indicate the public did understand, they just didn't care that they were gutting Oregon's land use laws.)

There is, I think, a place for direct citizen action. But it is not, in my opinion, everything government does. Lora Lucero, a land use attorney in Albuquerque, writes in her soon-to-be-published piece for Zoning and Planning Law Report, " is the difference between the city council approving land use regulations...which establish criteria for future development applications, adn the approval or rejection of the development application itself. The first is typically considered a legislative decision and subject to a potential up-or-down vote of the electorate, while the second is an administrative decision and not subject to initiative and referendum."

In Utah, the same theory seems to apply. In the state code, there is a very specific designation of land use ordinances and general plans being legislative actions, and thus being subject to referendum or initiative. However, individual property rezones are designated as not being referendable. This seems to imply that such actions are administrative. But city attorneys throughout the state are very clear and very strong in maintaining that any rezone is a legislative action. So will the courts see it that way when the question is put before them?

Apparently, in the Sandy case now pending before the Utah Supreme Court, Sandy City attorneys made the point that if the plaintiffs concede that the action taken by the city to amend the uses allowed in the zone in the gravel pit parcel is an individual property zoning decision, then because of the language in the state code, the action is administrative and thus not referendable, and thus the suit should be dismissed. "Indeed, the very reason for defining 'local law' to expressly exclude in all instances 'individual property zoning decisions...was to legislatively prohibit subjecting such matters to a referendum vote at all. To read the statute otherwise ignores its essence, would wreak havoc on local zoning decisions, and requires overturning established Utah Supreme Court precedent." (Memorandum in Opposition to Petition for Extraordinary Relief, Save Our Communities v. Sandy City Recorder and Sandy City)

Will the Supreme Court go along with this argument?

As The San Francisco Chronicle wrote in an opinion piece a few years ago about a couple of proposed referendum petitions there, "Each (petition) contains blanket solutions to complicated problems of planned growth. ... Planning decisions should be reached by compromise and consensus, not winner-take-all ballot measures."

Where will we be in Utah in the near future?


At 11:21 AM, Blogger Planner Perplexed said...

I seem to be the only one who is wants to weigh in on this issue, so here I go again.

If anything in the public realm is allowed to be voted upon, it should be things such as the General Plan/Comp. Plan, NOT the zoning ordinance or individual rezones/conditional uses!

I think perhaps the solution to many of land use problems we have is to make it mandatory that administrative decisions regarding land use are compatible with the General Plan.

That would stop a lot of the bickering going on at the local level. Land use suffers when the General Plan becomes a pawn in the debate over rezone decisions.

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