Tuesday, February 28, 2006

McAllister Fund Gets Attention

The LeRay McAllister Critical Land Preservation Fund was in the news Tuesday in a big way. Attention was given because of the proposed funding by the legislature. Initially proposed to be funded for $6 million this year, the latest legislative funding list shows it at $1 million.

Salt Lake businessman and former House Speaker Robert Garff presented an impassioned plea for support of the Fund in an opinion piece in the Deseret News. Writes Garff, "With our record $1 billion surplus, and a $9.6 billion state budget, surely $6 million can be found to fully fund projects that preserve our traditional farmlands, enhance our communities and protect our sources of drinking water."

When originally established, the McAllister Fund was to receive a regular source of income from some dedicated sources, amounting to somewhere near $6 million each year. But each year, the legislature has taken the money from those sources for other priorities and left the Fund woefully short. Garff notes "our neighboring states are investing millions in state and local funds for the protection of their lands and waters, including Nevada ($200 million), Colorado (over $200 million) and Arizona ($173 million). By contrast, on average, the Utah legislature has invested less than $2 million annually in the McAllister Fund."

The editorial in The Trib notes that "The McAllister Fund is just the kind of modest, fiscally conservative approach that Utahns are comfortable with. A $6 million effort every year for a couple of decades would add up to a lot. But like any savings program, you've got to contribute every year. Now's the time to start."

Anyone listening up there on the Hill?

More on Bluffdale Disconnection Ruling

As expected, both the DesNews and the Trib have longer stories today about Judge Quinn's ruling in the Bluffdale disconnection case. And also as expected, I find myself squarely in the middle on this one. That's because I find myself agreeing in part with both sides.

Judge Quinn wrote in his ruling as I noted in the previous blog entry, and also said, "Bluffdale City's zoning and planning process was characterized by unreasonable delays and changing standards. Bluffdale's current political environment precludes an orderly development process."

This is the kind of stuff that has gotten local governments into trouble with developers and landowners in a number of other instances, and has been, at least in part, responsible for things like SB170 in this year's legislative session (of course, it doesn't hurt that you have 22 legislators who are involved in the real estate and development industry, including the House Speaker and former Senate President).

But local governments must work harder to ensure the land development process is fairer and more timely if we are to avoid future full-scale assualts on local planning and zoning authority.

But another contributor to the confusion in the mix has been the rise of citizen groups. Not that they are all negative, but Judge Quinn did sum up some problems with this approach when he wrote that the debate over appropriate land use in the community has "escalated to the point that virtually any decision made by the city in favor of the development is subject to a referendum. ... The court is not suggesting that citizen involvement or the referendum process is anything but salutary. It is, however, an unwieldy mechanism for making zoning decisions."

On the flip side, Bluffdale Mayor Claudia Anderson says in the Trib that the judge "should never have held a trial because the dispute was a zoning decision. Just because the developers don't like how the city is planned to zone the land, they shouldn't be able to peddle their land to another community."

Amen. I agree with the Mayor on that one.

There's lots here to think about and discuss. I'd like to hear comments from readers, and I'm sure there will be more to discuss in the coming weeks and months. Bluffdale City has said they will appeal Judge Quinn's decision.

Monday, February 27, 2006

The Incredible Shrinking City

Judge Quinn issued his ruling this morning on the Bluffdale disconnection case. All I have at the moment is the brief Trib story on their daily update -- no doubt more will be available tomorrow, which I'll update onto this entry. I'll also try to get the ruling text itself. But the judge ruled against the city, which will likely result in a disconnection of some 40% of Bluffdale City's land area.

Interesting excerpt the Trib reports, however. In ruling against the city and in favor of the developers and landowners, Judge Quinn wrote, "While justice and equity do not require any specific outcomes from a planning and zoning process, they do require that the planning process be fair, expeditious and consistent. The Bluffdale process as applied to South Farm lacks these elements."

It will be interesting to see what Judge Quinn thought was unfair about the process. Something else for us to put in our pipes and think on for a while, I'm sure.

Bluffdale City officials have said they will appeal the District Court ruling.

Thursday, February 23, 2006

It's Alive! (Again)

Big news out of Oregon yesterday -- Measure 37 is still alive and well!

The Oregon Supreme Court, in a relatively quick action, overturned a lower court action unanimously and put Measure 37 back on track. In a lead story, The Oregonian reported that the decision "jump-starts more than 2,500 applications to develop land controlled by government regulations."

"Oregonians widely view Measure 37 as a shift in the state's approach to planning: reserve the country for agriculture, and concentrating people in cities. [Under Measure 37,] governments must either turn back the clock to rules in place when land was purchased, or pay for owners' financial loss. No money was set aside for cities, counties and state agencies, so rules have been waived."

The rejection of the lower court ruling staying Measure 37 "was emphatic. The court rejected each of [lower court judge] James' grounds for overturning Measure 37, saying it is consistent with the constitution. 'Whether Measure 37 as a policy choice is wise or foolish, farsighted or blind, is beyond the court's purview,' the justices wrote."

Oregon state government has established a 10-member task force to review Oregon's land use laws and philosophy in light of recent moves like Measure 37, to see what direction the state should take in the future.

In a related Oregonian story, farmers who had been prevented from selling land for development had mixed reaction to the court ruling on Measure 37, but generally seemed favorable. "'No one should be afraid of Measure 37,'" berry farmer [Jack] Parsons said. 'It doesn't force farmers to stop farming. It gives property rights back to farmers."

Another story in The Oregonian looks at the political implications of Measure 37 and the general attitude toward land use regulation on the Oregon Governor's election this November. "Candidates from all sides of the political spectrum...blamed Gov. Ted Kulongiski for failing to resolve the thorny issues posed by Measure 37, insisting they could do better. ... But land-use politics in Oregon show little sign of easing."

The success of Measure 37 in Oregon is being cited as part of the reason for other similar actions cropping up in other states, like a ballot measure moving forward in Washington state, and even for SB170 in Utah.

Wednesday, February 22, 2006

Foxes in the Henhouse?

Here I am, behind the times again. What with Presidents' Day and frequent writing on legislative updates, I haven't found the time to blog on notable planning-related topics, and they are stacking up. So here I go to try and make a dent in the backlog.

On Sunday (see how far behind I am?) there was an interesting juxtapositioning of stories in the Trib. First, there was a story on legislative conflicts of interest. The main example used in the story -- the influence of realtors and developers. Given all that has happened this year with SB170 and other related bills, that is no surprise to many. The Trib claims that those involved in the land development business make up the largest bloc of "interest" in the legislature -- "This year, 22 legislators build, manage, sell or maintain homes, apartments and commercial buildings. The industry can claim some of the most prominent leaders on Capitol Hill, including House Speaker Greg Curtis, former Senate President Al Mansell and Lt. Gov. Gary Herbert."

Then, flipping over to the editorial section, we find an opinion piece by Mike Ostermiller, CEO of the Weber/North Davis Association of Realtors and main lobbyist on SB170 for the Property Rights Coalition, a small group of key developers concerned about local land use regulation. The title of Ostermiller's piece is "Land use bills seek fairness and accountability." Ostermiller writes, "Cities should be able to make decisions that affect owned property only if there is a very good reason to compromise private property rights. The landowners community believes the current lower standard has allowed cities to make and defend land use decisions for almost any reason at all."

Hmmm. Pretty broad statements about the overall picture, I'd say.

Fortunately, there is also a piece in that day's editorial section from Alan Matheson, executive director of Envision Utah. Alan does a good job of pointing out the need for a balanced approach to land use regulation and development for the benefit of all.

As an interesting side note, yesterday SB268, the bill making changes to the property ombudsman office, was amended on the Senate floor with things that local government reps had been party to and were generally in support of. However, one change caught most of us off guard. The new advisory board which will help to oversee the activities of the ombudsman was changed, taking the nominating role for one of the board members from Utah farm organizations and giving it to the Utah Property Rights Coalition. I don't know that there is any one particular group in the state that represents developers in general, but I know this one ain't it. The Coalition is made up of a fairly small group of developers who have a certain ax to grind, and giving them power to nominate one of the ombudsman advisory board members seems rather unbalanced. Just my opinion.

Sunday, February 19, 2006

Referendum Issues Resurface

One of the proposed Sons of SB170 bills was supposed to deal with the question of having certain land use decisions subject to citizen referendum. There was even a bill in progress under Sen. Tom Hatch's name for this issue.

Stories last week in both the DesNews and the Trib indicated that citizen groups were forming to oppose any change to the citizen referendum process. "We're really worried," said Save Our Communities (Sandy) representative Robyn Bagley. "There's a lot of different ways they can go."

Most of the discussion in the press, and even comments made by Sen. Tom Hatch, revolved around changing the threshold percentage of signatures needed in communities of varying size. In larger communities, to get a referendum petition on the ballot, supporters must collect enough signatures equivalent to 20% of the number of those who voted in the last gubernatorial election in that community. For smaller towns, the standard rises to 35%.

In Riverton, a recent referendum proposal was put forward by meeting the 35% standard -- twice. Dennis Sampson, president of Riverton United, said "It was very, very hard to get enough people. It was nearly impossible to do it the second time." But they did.

Discussion I had heard about the proposed bill for Sen. Hatch, however, was about applying the same standard for taking issues to referendum for cities and counties as exists for the state legislature -- if the measure passes the legislative body by a vote margin of more than two-thirds, it cannot be subject to referendum.

But we may never know (at least not this legislative session) what would have been in the bill -- even Sen. Hatch acknowledged that it is getting late in the legislative session to come forward with a new bill and have it have any hope of making it all the way through the process. Given the citizen groups that would marshall to potentially oppose it, that is about a given.

It's no secret how I feel generally about land use decisions being made by referendum. I have blogged on this topic before. In the give and take world of development approval, it is difficult if not impossible to deal with individual projects on such a basis. There may be more rationale for allowing referendum votes on such broader topics as the general plan for the community, or large-scale rezones. But reviewing and approving individual projects is such a give-and-take of negotiation, how can that be accomplished when it may be subject to citizen referendum?

Two weeks ago, the Bluffdale City disconnection case was heard in Third District Court before judge Anthony Quinn. A lot of factors and issues were brought up and discussed in the hearing, including the role that the referendum by Bluffdale citizens played. Near the end of the hearing, while discussing this issue, Judge Quinn said,

"If you consider the referendum, that is somthing that really cuts both ways. ... "In my analysis of this case, on fairness, predictability and consistency of the process, how can a developer negotiate with, in effect, all the citizens of Bluffdale City?
"When you've got a situation where the political climate is such, and I'm not saying that it's wrong -- I mean I'm in favor of active citizen participation in the process -- but it creates a political climate. And when the political climate is such that all the decisions of the city council are going to be examined and challenged by referedum, how can a developer negotiate with that? The city council and the mayor become, in effect, an agent with no authority. They can say no, but can never say yes, and have it mean anything. Doesn't that affect the process and ultimately the fairness and equity of the situation?"

Cogent words from Judge Quinn. It will be interesting to see how he rules in the Bluffdale disconnection case (the referendum is only a part of all the issues being dealt with there).

I'm sure those citizens in favor of referendum petitions will argue that it is stripping the right of the people away from them to do away with such votes, but the right to referendum is already limited to non-legislative type decisions. These kinds of development approvals may be in the same category.

Friday, February 17, 2006

Trib Says We're "Caving In" to Developers

Interesting editorial in the Trib yesterday morning about the successor bills to SB170 -- SB267 and SB268 (I haven't been able to get to this until this morning -- between being at the legislature, meetings, real work, snowstorm, and my wife taking me to see "Julius Cesear" at PMT last night, just not a lot of time left to blog!)

They don't seem to have a lot of hearburn with SB267, but they think local governments are caving in to the developers on SB268, the changes to the provisions for the state private property ombudsman.

"Or he could serve as an ombuds-hit-man whom the developers could call on whenever a mayor or city planning director wasn't showing propert respect. Thus our suspicion that the local government associations, which should be providing that legal advice themselves, caved rather than watch SB170 resurrected.
"The worst part of SB268 is its provision turning lawsuits opposing the ombudsman's 'non-binding' opinions into insurmountable loser-pays affairs."

There's no question that many planners and local government officials would rather not have to deal with some of the changes proposed for the ombudsman take place like this during the heat of the legislative session. It would be better to study, talk through, and work out what the role would be and how it would work. It will also take some time to build support among local government types for some of what is proposed here.

But Sen. Mansell is a rather powerful legislator, and the political reality is that something is going to pass on this, whether we play along or not. We could take the stance that, like SB170, its terrible and shouldn't be done. Truth is, however, when you read what is proposed in SB268 vs. SB170, it seems much more reasonable and is infinitely more difficult to make the case that this is such a draconian hit on local authority like SB170 was.

For example, getting a non-binding advisory opinion from the ombudsman about whether a city or county is following state law and case law in their approval process doesn't sound so bad to most outsiders. What's wrong with that? And the legal fees requirement, if it goes all the way to court, actually is a sword that cuts both ways -- if the developer doesn't like the ombudsman's opinion that the city is doing things right, and pushes it to court anyway, and loses, the developer could wind up paying for the city's legal costs - something that doesn't happen now.

So it is much harder to make the case that SB268 is such a bad thing. Better to work it and get it to where it is palatable to local government. My own personal opinion is this -- third parties (neighbors, other affected landowners) are also able to throw the process to the ombudsman (or a mediator) for an opinion. After a few of these, I think developers are not going to like this process so much anymore, and it will be changed in a future legislative session, maybe done away with. I think this thing is full of unintended consequences, for the developer as much as anyone.

This may all sound a lot like accomodation, and it is in large measure. There is no question that there are a few cities and counties out there that are not playing by the rules properly, and that has helped bring this down on our heads. In a way, we have to blame ourselves for some of this as well as pointing to the developers trying to get an edge. But that's reality -- we have to live with it.

Monday, February 13, 2006

Another One Bites the Dust (Maybe)

"[We have] reasonable protections that make our neighborhoods better, our streets safer, ensure us good jobs, and generally contribute to our quality of life. Irresponsible developers and other special interests would like to see these protections removed to line their pockets, sacrificing the good of the many for the benefit of the few.

"And what if these protections were taken away? What if a huge mall were allowed to be built in your neighborhood and there wasn't anything you could do about it? What if a new law took away government's ability to protect you from flooding, landslides or from contaminated drinking water?"

Sounds like a reaction to the Utah legislature's infamous SB170, doesn't it? But no, this is part of the verbiage found on the website for the Community Protection Coalition. The Coalition is reacting to a proposed initiative in the State of Washington filed last week by the Washington Farm Bureau. The purpose of the initiative is to have voters adopt a measure in November that would be similar to Measure 37 in Oregon. The Washington Farm Bureau is primarily concerned about restrictions in Washington state law on farmlands and environmental protection, but the measure would blanket all property, urban or rural, and severly restrict what regulations could be adopted without providing compensation to owners.

The Washington Farm Bureau also has a website, called Property Fairness for Washington. A story in The Olympian (Olympia, Washington) is a good briefing on the issue.

So let's see, we have Measure 37 that passed in Oregon a little over a year ago (though it is currently on hold as appeals work their way through the Oregon courts), we have SB170 in Utah, and now this measure in Washington state. What's going on? Are development interests just getting overly aggresive lately, or is there a real backlash developing because of heavy-handed land use regulation? Richard Carson, former director of Portland Metro planning agency and current director of community development in Vancouver, Washington, thinks that may be the case.

Yes, we must oppose and decry such moves. But we must also look to ourselves and see what it is we need to be doing different and better to support the needs and desires of the community.

Saturday, February 11, 2006

RDA Bill Unveiled

First, I should apologize for not writing more frequently. With the state legislature in session and in my role as the Utah APA Legislative Chair, much of my free time to blog has been taken up instead with writing legislative updates and getting them out to the Utah APA legislative email network. I'd love to spend more time writing and blogging, but the realities of life and job just make it hard. OK, enough whining.

Sen. Bramble has released the language for the rewrite of the RDA laws for the state, something that has been worked on for the last year. The bill, SB196, has been pretty much agreed to by all the groups involved. While it preserves RDAs as a tool for community and economic development, it is somewhat more cumbersome and not as easy to use as it has been in the past. Of ocurse, some of this change is the result of abuses, both real and perceived, by some communities. Why is it that we can never leave well enough alone, but instead find ways to twist and misshape tools that were intended for one purpose, thus causing us problems as legislators are brought into the picture? What we really should have been doing is going to local and legislative leaders saying, "this tool is not working as well as it should, and is not addressing the problems we really need to address. Can we craft a new tool (or changes?). But I also realize the political reality that unless something is about at crises stage, no one will pay attention to it.

Stories in the Trib and DesNews are good summaries of what is happening with this bill. This tool is sorely needed to give us a way to both redevelop older areas, and provide infrastructure improvement for areas for economic growth. We need to pay more attention to the latter, and find ways to make it even better.

The successor land use bills to SB170 are coming down to the home stretch, with only about two and a half weeks left in the legislative session. SB267 is easy to support, but SB268 needs some work. We shall see what happens this coming week.

Tuesday, February 07, 2006

Sons of SB170

SB170, the now-infamous land use bill sponsored by Sen. Mansell that has drawn a lot of flack from the public, local officials, and all the media editorial boards, is lying dormant, but is being replaced by three pieces that would do various things.

The first is a bill which is already out, SB267 - Changes to Local Government Provisions. This bill is like a firecracker compared to the nuclear bomb that SB170 was. The provisions of this bill were talked about with local government reps, and there is pretty good general agreement that these provisions should move forward. It includes such things as a way to provide notice of general plan amendments to property owners directly (rather than just by way of a published legal notice) to those that request notice to be made to them; requires cities and counties to process and render a decision on land use applications with "reasonable diligence"; and makes some reporting and calculating requirements for impact fees.

The second piece will be a bill regarding taking zoning measures to referendum. Essentially, from what I'm told, local governments will be given the same standard as exists for the state legislature, that if a measure passes the local governing body by at least a two-thirds vote, it is not subject to referendum. There will likely be split support for this measure. While some feel that deciding zoning and planning issues by referendum is not a good way to go, others feel that it is appropriate and even necessary. This will be a bill sponsored by Sen. Tom Hatch.

The third is a bill that will make modifications to the role and duties of the state's private property ombudsman. A board would be created that would advise the ombudsman and consent to the appointment and removal of the ombudsman and any future staff for that office. The ombudsman could be asked to provide an advisory opinion on an administrative land use application at the request of either party (or a third party with standing to challenge) -- the opinion may be requested at any time during the review process. The advisory opinion would be non-binding, and if taken all the way to court, the prevailing party could then recover attorney's fees from the other party.

There is lots to talk about with regard to this third bill (which is currently in the works, to be sponsored by Sen. Mansell). There may be some merit to the things it would provide, but some will likely have to be tweaked. With the pressure and short time remaining in the legislative session, however (3 weeks), there will likely not be enough time to get general agreement and the support(!!) of local officials. This one probably needs more time to be worked on.

The DesNews and Trib both carried stories this morning on this topic. The DesNews story is more accurate, as the Trib makes it sound like local officials will oppose anything that comes after SB170, which is not right.

More to come....

Saturday, February 04, 2006

The Public Speaks

Lots of letters to the editor and editorial comments showing up in area newspapers on SB170. Some links to help you get the flavor --

Standard Examiner editorial

Standard Examiner letter

Deseret News letter, letter, and letter

Salt Lake Tribune letter, letter, letter, letter, and another letter

The Trib also has another editorial comment, and a piece by Paul Rolly on the topic

Provo Daily Herald letter

Davis County Clipper letter

The proposal has certainly drawn the public's attention, and it seems that it is mostly negative. Don't think this is helping the image of developers with the public.

Friday, February 03, 2006

Who's In Charge -- Elected Officials or Citizens?

Quite an interesting story in the Trib this morning about the Bluffdale disconnection petition, which I've referenced and blogged about before.

As the hearing wrapped up Thursday, Bluffdale attorney Dale Gardiner announced to the judge that the city is trying to reach a deal with the developers/petitioners for disconnection, and hopefully settle before the judge issues a ruling.

Judge Tony Quinn was surprised, and asked some interesting questions. He noted that as of late, it has been Bluffdale residents, not the elected officials, who have been blocking the development plans. "How can a developer negotiate with, in effect, all the people of Bluffdale? How can a developer negotiate when the mayor and City Council become an agency with no authority, that can say 'no' but never say 'yes.'"

The judge was referring to the fact that residents had used the referendum drive to overturn their elected officals' decisions on plans for development of the property, then scuttled a lawsuit settlement by going to court.

So who really is in charge? And what do such actions bode for the future of the planning authority of local elected officials? I've heard it said before, the American Founding Fathers rejected the notion of direct democracy in favor of a republican representative form of government to avoid difficulties in reaching decisions and moving things forward. Judge Quinn may have just made obvious for us some of the difficulties that direct democracy pose in the land use regulation arena as well.

Wednesday, February 01, 2006

Just Fooling!

Stories in this morning's Trib and DesNews about a press conference held yesterday by Sen. Mansell -- April Fools! (well, January then). Just wanted to get your attention! Now we'll go back and write what we really meant!

Anybody ever think of coming and talking about things in a reasonable manner first? We ought to do the same with the real estate code -- here's how we think you ought to conduct the real estate business! That would be fun.

Seriously, folks, let's see what they REALLY have to say next, then decide where to go from there.