Wednesday, March 29, 2006

Unintended Consequences

As I've observed the state legislature over the years, I am always struck by how often even well-crafted and vetted bills wind up with unintended consequences. And if it happens often in something carefully written, what chance does something hastily put together at the last minute have? Such bills almost without exception contain something no one foresaw or intended.

So it really comes as no surprise to me that Measure 37 in Oregon is now discovered to have an unintended consequence. A story in last Sunday's Oregonian points out that many legal observers are saying that it is clear that the measure intends to give a property owners back the rights of development that existed at the time the owner purchased the property. So many long-time landowners are seeking approval for uses that are no longer currently permitted, but were legal at the time they acquired the property.

However, if the owner then sells the property, the new owner can only seek approval for the level of development that current regulations permit.

"There's no evidence transferability was contemplated,' says Kevin Neely, spokesman for the attorney general's office. Leaders at Oregonians in Action, the group that wrote Measure 37, say ability to sell land for development is part of an owner's right.

"Oregonians on both sides are struggling with the new legal and political landscape. There are folks such as George Forsman, who won Measure 37 approval early on. Last summer, he was trading stories with fellow claimants in a crowded Clackamas County hearing room. 'I can't sell the land,' he told a woman in the next row of chairs. 'Oh, my gosh,' she exclaimed, waiting for her turn before the county commissioners. Forsman shook his head. 'Not with this restriction on it.' Forsman says he might sell his 40-acre orange grove in Florida so he can afford to develop the Oregon land himself. But he knows most claimants don't have that option, so he'd like to spearhead a class-action lawsuit."

Nothing is ever as clear as you might think it is, especially when dealing with the writing of new laws.

How Far to Take Opposition to a Plan?

Story in this morning's Trib about how the Sierra Club, Wilderness Society and SUWA really dislike the land use plan for Washington County unveiled last week by Sen. Bennett and Rep. Matheson. As the story say, "(the) three environmental groups have determined that they don't like the proposed Washington County land-use bill... (a)nd that might be putting it mildly."

I have no problem with anyone not liking what is proposed in general plans or other land-use planning efforts. From what I understand, the Washington County proposal is going to go through a process of public comments and input before it is finalized. Great. That's the place for groups and individuals to express their views and try to persuade others about their viewpoints.

What I wonder is how far these environmental groups will take their views. If their opinions are not accepted or broadly incorporated into the proposal, will they then take the extreme position of challenging in court? That seems to be what they are setting up for. If they do, does that mean their opinions and viewpoints are the only "correct" ones? If everyone were to take such an attitude about their viewpoints, nothing would ever be accomplished. Most plans are the product of a number of different ideas and viewpoints which are blended into a plan, which often represents "some of yours and some of mine," not just all your or all my way.

Be interesting to watch what happens with this.

Tuesday, March 28, 2006

What Commercial Developers Are Thinking

This month's Utah Business magazine includes some interesting comments from commercial realtors in the magazine's Industry Outlook on commercial real estate (this link will require you to do a free registration to get to the story, but it's worth it). Telling comments from them about how they see the business recruitment process, particularly in Salt Lake City. Devon Glenn of the Boyer Company says Mayor Rocky Anderson "doesn't do what the mayor of Ogden is trying to do. He doesn't do what the other mayors are trying to do." Bill Martin of Commerce CRG says, "The mayor of Draper lands Ikea and gives them the world. But the mayor of Salt Lake doesn't recruit." Lots of other interesting tidbits in this interview.

When they discuss the lack of affordable housing, much of blame from these gentlemen goes to local governments. Bruce Tucker of Prudential CRES says, "A lot of communities have to address the vertical issues. St. George is a perfect example. ... There are multiple developers who would love to come to St. George and do an affordable housing project, but you can't go vertical. You can't make that work. Utah County has the same issue."

Bruce Bingham of Hamilton Partners asks, "Do you think Utah's property rights are deteriorating slower or faster than the rest of the country?" Responds Steve Bogden of Coldwell Banker Commercial, "...we have two areas that are recent examples where I think we have some major challenges. One is in the building with the dome up there. The commercial real estate industry, including developers, brokers, title companies and mortgage companies, have formed a coalition. We are lobbying the legislature at the Capitol regarding redevelopment and the redevelopment process, because there have been cases of abuse. But when they saw that abuse, they killed the issue, instead of trying to help change the process."

Interesting perspective, a little different than what I would have thought, given how the real estate and developer industry has been represented on the Hill.

Fascinating stuff. Give it a read, it will give you a new perspective on what major commercial developers are thinking.

Sunday, March 26, 2006

Time for Planning In Washington County Is Now!

Lots of attention being paid to Washington County as of late. It started with the acknowledgement that this county is among the five fastest growing counties in the nation. Anyone who has been to St. George and surroundings in the last few years could readily attest to this -- the place looks like a part of the Wasatch Front, only with red rock surroundings (and nicer golf courses!)

Next the announcement (see also here) of a broad-based plan for public lands in Washington County. It's nice to finally see a positive, pro-active approach to dealing with the largest landholder in many areas of the state, where growth and the status of the federal lands often come into conflict. A few years ago, the state tried funding development of county general plans so that the residents of the county could have a formal say in the planning for the public lands in that county. While there was some modest success with that approach, it seems what was just unveiled in Washington County (based on plans done recently in two Nevada counties) is a much better way to go.

This morning's DesNews (be sure to click on related stories listed in the left-hand sidebar) focuses considerable attention on growth in Washington County.

The Southern Utah Wilderness Alliance, however, after taking a look at the proposal, doesn't like it. That's fine, because from what I read the plan is not yet finalized, with public meetings scheduled to receive more input. SUWA warns, though, that they are prepared to fight the plan. This, I have come to learn, usually means that if they don't get just what they think it should be (forget about no one else getting exactly everything they want, either), then it's off to court!

What all this tells me is that it is high time for some coordinated, broad-based planning for the Washington County region. I think planners there have been trying hard, but as has been the case for years on the Wasatch Front, planners generally are so overwhelmed with just keeping up with the exploding development process, there isn't much time left over to do the broader visioning and planning.

The federal lands plan recently unveiled is probably a good example of how some of this broader visioning and planning can and should occur. A similar process should take place now for all lands in Washington County.

It is my understanding that leaders in southwest Utah have been considering making use of the Envision Utah process that was used along the Wasatch Front nearly ten years ago. I would encourage folks there to move ahead with this idea. It is not the plans and principles that would be simply taken down to the St. George area -- it is the process that Envision Utah used with such great success that would be helpful. Recall the numerous public workshops where thousands of residents and leaders sat at tables with chips representing growth, and everyone expressing their thoughts on how growth should occur. This then led to scenarios and eventually the expression of desired growth principles.

Washington County could develop their own "vision" of how they want to grow using the Envision Utah process. Why shouldn't people in our own backyard do so, when this tool is now being used to great success in many other areas of the country?

Go for it, Washington County. It sounds like an idea whose time has come for you -- plan before what attracted you to red rock country in the first place is all gone.

Wednesday, March 22, 2006

Salt Lake, Davis Counties to Be Proactive on Corridor Preservation

Last year's legislature passed a bill (SB8) which gives counties the option of increasing auto registration fees and use the money for corridor of critical transportation corridors in that county.

So far, only two counties are considering adopting the fee and moving ahead -- Salt Lake and Davis. With the rapid growth rates in our state and the relative dearth of funding to accomplish all that is needed to build the planned future transportation system, development can easily overwhelm the areas where future corridors are needed, as legal constraints prevent local and state governments from banning development for more than a year or so. And with land prices escalating as rapidly as they are recently, the cost for acquiring and preserving corridors goes up exponentially.

Though it seems like a tax increase to implement the fee, in reality it is the "one donut now, or two donuts tomorrow" parable -- ask someone to do a task, and offer them one donut right now in payment, or two donuts tomorrow. By buying right-of-way for corridors now, in the long run taxpayers are saved a lot of money by acquiring the property before the values increase dramatically or it is developed and homes and businesses must be removed.

The actions are described in more detail in stories in the Trib (see here, here and here) and in the Davis County Clipper. Also a story in the DesNews. The Standard-Examiner editorializes in favor of the action, and Utah Policy Daily also praises such action.

It is truly a long-view planning action to take action to preserve corridors. It can be used for both highways and transit, so it is truly an integrated transportation tool.

Tuesday, March 21, 2006

Gov Fails to Veto Eminent Domain Bill

Gov. Huntsman failed tonight to veto SB117, a bill which includes a provision that prohibits the use of eminent domain to acquire land for trails and recreational paths. About the only option left now is to mount an effort to have the law changed back next legislative session, and that, my friends, won't be a slam dunk.

Odds and Ends

Just a couple of quick notes.

Story in this morning's Trib which notes Bluffdale's expected filing of an appeal to the state Supreme Court of the ruling in the disconnection case. Judge Quinn has put his ruling on hold until the appeal can be settled. Resolution of this case may take some time.

On a different note, the Trib also has a story this morning on bills the Gov has neither signed nor vetoed, including SB117, which contains the prohibition on use of eminent domain for acquisition of property for trails and recreational paths. No word on how the Gov is leaning at this time. Deadline for action is today.

Sunday, March 19, 2006

Pen Out for Trails!

As highlighted in a story in this morning's DesNews, Gov. Huntsman has until Tuesday to sign or veto bills passed during the 2006 legislative session. One he has not acted on yet is SB117, dealing with eminent domain. The original bill itself was one which most did not have any real problems with. However, in the last days of the session, Rep. Aaron Tilton was successful in getting the language of his HB292 amended in when SB117 was up for consideration on the House floor (the amendment was offered by Rep. Dave Ure!).

HB292 would have prohibited the use of eminet domain for acquisition of land for trails and recreational paths (except for those adjacent to a street or roadway -- a provision to keep the Legacy Parkway from getting into trouble again). Rep. Tilton sponsored the bill as a way to help Dr. Wendell Gibby of Mapleton, who was in the middle of a complicated legal dispute with Mapleton City over an existing right-of-way across his hillside property which the city wanted to formalize as part of the Bonneville Shoreline Trail.

HB292 failed to gain approval in three separate House committee meetings. It was then amended into another bill dealing with different parts of the eminent domain law. This is a tactic frequently used in the U.S. Congress, but one that virtually never succeeds in the Utah legislature. But it did this time. It is hard to argue that legislators did not know what they were doing when they approved this amendment, particularly in the Senate, but there does seem to be some element of "slipping it by" because a couple of House members I have talked with seemed surprised that it had succeeded and didn't recall voting on it.

This is a bill the Governor should veto. It's primary motivation was to help out one particular property owner in a dispute with his city, but the particulars of that case seem muddy at best. Ironically, it is not likely that this bill will help much in that case, because the dispute is already well down the "path" in the courts, and this new law will not be applied retroactively.

It does seem that this bill came about, in part, because of the controversy generated in the past few months because of the U.S. Supreme Court's eminent domain ruling in Kelo. But, other than the one particular dispute in Mapleton, what overriding reason was there to remove this tool of government?

No question, eminent domain is rarely invoked by local government when dealing with parks and recreation facilities, particularly with trails. But it is an important resource to have. Many property owners are willing to grant easements or rights-of-way for trails, but often they ask for the benefit of doing so under the "threat of eminet domain," which then gives them advantages under federal tax laws to reinvest their capital gains. This seems like a fair concession to help compensate them for their willingness to provide such wonderful community resources. But under SB117, this advantage will no longer be possible.

In some cases, eminent domain may be necessary to complete a long and extensive process. Salt Lake City Attorney Lynn Pace recited the story of how the city worked with community and trails groups long and hard over a period of years to build the Bonneville Shoreline Trail around the foothills of that city. One final piece of trail segment remained to complete the system, but the out-of-state property owners failed to respond to numerous inquiries and requests from the city. It wasn't that they were opposed (or even in favor) of the trail -- they just simply did not respond at all. Finally, the city filed an eminent domain action, which ultimately forced the resolution (successfully, as it turned out).

Now that tool will be gone. Use your pen, Governor, and veto the bill. It is a relatively minor tool, but one that can be well-used at appropriate times.

Friday, March 17, 2006

Signs of Things to Come

Story in this morning's DesNews is about possible continued efforts in the state legislature by the developer community to change land use statutes.

Neil Lindberg and I have been doing kind of a tag team presentation on what happened in this year's legislative session on land use law, and why, and what we might expect in the next year. As the story recounts, Neil made a presentation Thursday to the Wasatch Front's Regional Growth Committee, saying what we both believe, that there will be continued efforts to move the line that distinguishes between legislative and administrative land use actions.

Michael Hutchings, principle in a law firm that has filed numerous lawsuits on behalf of developers over land use applications before local governments, essentially confirmed that suspicion when he said, "...the substitute (bills) to SB170 were compromises that fell short of what developers really want. ... They...want zoning requests to be approved unless cities and counties can show in court or before the state ombudsman that projects would be harmful." That would be an attempt to move that legislative-administrative line.

"Property owners and lawmakers plan to spend the next few months talking to representatives from the Utah League of Cities and Towns and the Utah Association of Counties to try to reach some kind of agreement, in preparation for any new bills that may enter the battlefield." Let's hope the lesson was learned with SB170 that such an approach needs to be taken, rather than just dropping the bomb as was done at the beginning of the last session.

Thursday, March 16, 2006

Planners Played with Erector Sets as Kids?

Interesting interview by the Australian Broadcast Company interviewer Michael Duffy with Joel Kotkin, the proponent of "New Suburbanism." Duffy apparently had Richard Florida (Rise of the Creative Class) on earlier, and Kotkin takes on the notions expressed by Florida.

"No, (Florida's) completely wrong," Kotkin says. "I think Richard's theories had a kind of currency with the dot-com boom. ... The reality is quite the opposite. Take a look at San Francisco; San Francisco was at the height of the dot-com boom, the laws of economics had been revoked, and yet what do we see today? San Francisco's lost roughly 4% of its population, 10% of its jobs, the Bay Area has the largest domestic out migration of any area in the country. ... Where have the tech jobs been going? They've always been in the suburbs, I've always thought the Richard made a very unfair characterization by saying that tech growth is where the hip cools are. I've covered Silicone Valley for 25 years. Silicone Valley is basically a bunch of nerds; they don't care about Burmese restaurants unless they happen to be Burmese."

Some interesting stuff here. Particularly when he talks about planners. Duffy asks Kotkin why urban planners in general seem to be opposed to the idea that suburbs are important places, why they tend to focus on "hip cool urban downtowns." Kotkin responds, "There's an authoritarian streak in urban planners. They love Paris..., how they wanted to create this perfect urban environment and they did a pretty good job, but France has basically been a dictatorship, a top-down dictatorship for most of its history, and the reality is that even in France the middle class is moving to the outer ring of Paris anyway. But I think it has to do with the culture of planners; they want to control things. You always get the sense these were people who played with erector sets when they were kids..."

Huh? I thought that was civil engineers. I played more with block towns and train sets and the like -- I didn't have the patience for erector sets!

Kotkin does blast academics and intellectuals who disdain the suburbs in favor of urban centers, saying they ignore what are the most sought-after, desireable places to most people -- the fast-growing suburbs.

A recent example of that urban bias is a column by John Barber this week in the Toronto Globe and Mail. Titled "There's No Escaping Our Suburban Mistake," Barber writes, "For the sake of suburbanites alone, the end of suburbia would be a blessing. But that's not happening. ... It may be, however, that the suburbia we all love to hate is simply no longer historical, something that will change and perhaps improve in time, but anthropological: a big mistake made permanent."

The truth, I suspect as is true with so many polarized viewpoints, lies somewhere in the middle between the two.

Tuesday, March 14, 2006

The General Plan is "Everything?"

In the wake of the legislative session and the debris of SB170, as discussion panels and meetings to recap what happened take place, one thing is becoming more and more apparent: much of what occurred is due to the distinction (or lack of distinction) between legislative and administrative acts.

Legislative actions are those in which policy is debated and set, which are given much greater deference by the courts. In Utah, legislative land use acts are considered to be things like adoption of a general plan (and any amendments); adoption of zoning and land use ordinances; and zoning of property, including rezones of individual parcels of property.

Administrative acts are those in which the standards of the adopted ordinances are being applied to an individual application. Included in this catergory are things such as conditional use permits, site plan reviews, subdivision plats, etc. Much stricter standards of conduct are applied here by the courts -- the review body, if they intend to turn an application down, must have very good evidence and findings that standards are not met.

The location of this line varies from state to state -- Utah has a relatively broad area of legislative review. This can be frustrating to applicants, who would generally rather see their proposals reviewed under a strict set of standards. Much of what was written in SB170 was an attempt to narrow that area of legislative actions.

Sometimes, local elected officials and the public don't understand that line, either, resulting in inappropriate actions on items that clearly meet the administrative standards. I think this happens because elected officials sometimes think that as elected, policy-making councilpeople, they can say yes or no to anything. That just simply isn't the case.

A paper published in the BYU Law Review in 2004 discusses this distinction in detail. It is interesting reading, because one can see some of the moves attempted in SB170 directly in the law review article. The author, Todd W. Prall, argues that the line between the two should be drawn at the general plan stage. Prall writes, "The only decisions made by local governments that should be accorded legislative deference in the land use arena are those made to develop a large-scale and long-term comprehensive plan." He continues, "A single standard of review is a viable alternative to the traditional legislative/adjudicative division because it allows for proper legislative deference, creates a better atmosphere for local governments to engage in meaningful and effective large-scale planning, and properly protects due process. It promotes the proper use of a distinct comprehensive plan and illustrates a clear understanding of how separation of powers and delegation principles apply to local governments."

This, essentially, is what planners are taught in planning school -- everything should derive from a carefully crafted comprehensive plan. Zonings, rezones, land use ordinances, development review, all would then be administrative acts guided by the plan.

While this position is compelling from a logical standpoint, in practicality things don't work that way, in most places they never have. There are a number of reasons why things don't work as idealized. It would be a significant and renching change in the way things would be done.

Comments?

Monday, March 13, 2006

On Open Space and Bluffdale

Just following up with a few odds and ends.

The DesNews ran story this morning on the Bluffdale disconnection case fallout. Not much new in this story -- just emphasizes that the developers are ready to move ahead, while the city prepares to appeal the case. There may not be a final resolution to this case for some time to come.

The Trib this morning ran a story about the failure of the state legislature to do much for the funding of open space preservation. The story points out that McAllister Critical Lands Fund was given only $1 million this year, a record surplus year, and that this was less than what was put into the fund last year. Also, the legislature refused to pass a bill that would have given some counties the option of holding a countywide vote to increase sales tax slightly for preservation of open space. Don't want anyone to try any new and forward-looking ideas, do we?

Sunday, March 12, 2006

Are You Ready for Growth?

A couple of stories in the papers recently which helped drive home the idea that all communities need to be ready for growth, even if they're small and out of the way, even if they don't think they can afford it.

Last Friday, the Provo Daily Herald ran a story about Cedar Fort, a small town out in far western Utah County where it has seemed that growth would never be an issue. However, last week, the Cedar Fort Town Council held a meeting to consider imposing a development moratorium so they could have time to update their development codes. "Meeting in a frigid room in the town's fire station, Mayor Howard Anderson started the meeting by saying the choice was not whether to approve a moratorim, but whether to include all or part of the town." But various attendees at the meeting, including the former mayor and the chair of the planning commission, convinced the town council to "keep their powder dry" and save the extreme measure of a moratorium for when it may be really needed.

The problem for the town, it appears, was magnified about three years ago, when "the town annexed 13,000 acres, quadrupling the town's size. There always has been some question about how the land is now zoned, Anderson said. The town's attorney, investigating the matter at the town's request, recently said the original annexation agreement zoned the property in two different ways, neither of which is legal according to city ordinances. 'We can't have a map saying one thing and a zone saying another,' Anderson told council members. 'That is illegal.'"

"Several council members and the mayor said their greatest fear is that a 'high-powered lawyer' would find a loophole in the town's ordinances that would force the city to consider a subdivision or slew of single-family homes before ordinances could be rewritten."

And what is the town doing to get those ordinances reworked? "About an hour into the meeting, the town planning and zoning chairman of three months, Bart Berry, arrived promising to work as quickly as possible to rewrite town ordinances. ... The town must be careful as it crafts ordinances to manage growth 'because this is going to affect us for the rest of our lives,' Berry said. 'What scares me is that in six months, we won't be any further along,' said Anderson, to which Berry seemed to grow angry. 'Howard, don't pin me down like that,' he said in an irritated voice. 'I gave you my word on it.' 'Then in 30 days we'll have zoning ordinances,' Anderson said calmly."

What I don't know from this story is if Cedar Fort officials are trying to do this on their own, or if they have any professional help involved. I hear in this story the echoes of what has happened in numerous other small communities on the edge of the growth wave, like Bluffdale a few years ago. You could see the wave heading for them, getting ready to slam into them. But their efforts to prepare, to get their plans and ordinances into shape were never adequately committed to, instead done in a piecemeal fashion. In the case of Bluffdale, if you read the recent court ruling on the Sorenson Development disconnection case, it has come back to bite them. Places like Cedar Fort may be cruising for the same.

In a related story in this morning's DesNews, a proposed cluster subdivision in Basin, Wyoming is causing similar concerns. An organic-cattle rancher is proposing to subdivide his 750-acre spread into an area with 137 tightly-clustered homes on lots as small as one-third of an acre, keeping the rest of the land undeveloped and in agricultural use.

"The county has essentially no zoning restrictions on much of its rural land, including Elliott's property... . 'There are no zoning controls in this area,' (county planner Jim) Waller said. 'This whole thing could be busted up into 150 five-acre lots. But as it is, he's only taking up 20 percent of the area for housing."

Again, an example of an area not ready for the growth that is coming. "The issues that came up...are hardly new to the West. But they are new to some in Big Horn County and reflect a growing trend of development reaching into isolated communities whose zoning regulations don't address such complex issues. 'We've never had any kind of proposal this big, ever,' said county planner Waller. 'Just to give you an idea, in the last 18 months, we approved only two major subdivisions. One was 10 lots on a 40-acre parcel, and the other was four lots on a six-acre parcel.'"

Everyone, large and small, needs to be ready, and needs to commit the resources to be ready.

Wednesday, March 08, 2006

Aftermath of the ULI Seminar

Yesterday's Utah ULI seminar on what happened in the legislative session regarding land use issues was quite interesting and timely. Joining me on the panel were Mike Ostermiller, CEO of the North Davis/Weber Association of Realtors; Jodi Hoffman, land use policy person for the Utah League of Cities and Towns; and Sen. Greg Bell. Craig Call, Utah Property Rights Ombudsman, moderated the panel and did an outstanding job.

Mike Ostermiller felt, I think, a little like the target in a room full of bowhunters, but in reality there were a number of developer/realtor people at the seminar as well as local planners and elected officials. Mike and Jodi presented very contrasting views of what SB170 was all about, while I focused mainly on the process that brought about SB60 last year, and our surprise and disappointment that something similar wasn't done with regard to SB170. Sen. Bell did an excellent job of painting the scene of what the landscape is like in the legislature right now ("they don't like local government much") and how strong leadership will be needed in the coming year to properly address land use issues.

Bottom line, most everyone felt that we haven't seen the end of moves to make more changes to land use laws at the state level. The question just will be what kinds of changes and how we will move forward on those.

The Deseret News ran a story this morning on the seminar. Interestingly, the story was not so much about what was discussed at the seminar itself, but focused more on fact that a number of legislators work in the real estate and development business or received campaign contributions from the realtors and homebuilders.

In the previous blog entry to this one, I listed a number of excellent questions Craig Call put forward for the panelists to potentially address. Unfortunately, we didn't get around to them. But I would like to encourage you to go back on take a look at the comments to that blog -- there is a very interesting and extensive response from a recently organized group called The Utah Alliance for Citizens Rights, whose stated purpose is to make sure the referendum power on land use issues stays as a viable option. Interesting comment.

Monday, March 06, 2006

What's the Future Hold?

I'm scheduled to be one of four panelists tomorrow morning at Utah ULI's workshop on what happened regarding planning and land use issues in the 2006 Utah legislative session.

Craig Call, Utah Property Rights Ombudsman, will be the moderator. Craig sent us panelists a set of questions to think about and possibly respond to during the workshop that are excellent. I think I'll list Craig's questions here, and encourage readers to respond to those they have opinions on.

What issues do you see coming up again in 2007? Will there be added efforts during the interim to identify and craft consensus on more issues or will there be more open debate in the legislature this next time with no consensus worked out?

What do you recommend that property owners and local officials do to influence the process that could result in more changes in state law?

Do you feel that the provision of SB267 that states that land use applications will be processed in a reasonable time will have any beneficial effect? Does it say enough? Does it say too much?

No referendum bill passed this year. What is the future of this issue? What do you want the future to be?

Will there be legislation coming out of the Bluffdale and similar cases about disconnection and annexation to another community? What impact will this court case have?

Have SLAPP suits gone away? Will the opinion and later settlement in the Tobias case affect land use practice?

How much of what we have been going through in Utah relates to the US Supreme Court's decision in Kelo and the Oregon public vote on land use compensation through Measure 37? Will we see more fall-out from those watershed events in Utah?

What impact will the bill that creates opportunities for new school districts within existing districts have on land use planning and development?

Is there hope for small developers and homebuilders or are the rules simply too complex and the demands on development so great that only the large developments can do projects anymore? What are the trends?

What impact has the Wasatch Front Regional Council and Envision Utah had on these land use issues? Does "big picture" planning work? Is planning and land use regulation simply too fragmented?

What about corridor preservation? Have any counties adopted the vehicle registration fee increases that will supposedly provide funds to acquire future corridors?

What impact on land use development will Legacy have now that it is under construction? The Mountain View corridor?

How do the current and potential changes in land use statutes affect huge projects like Kennecott?

What do we see in the future for Summit and Wasatch Counties and the Wasatch Back? Is their experience with heightened regulation just the predictable future of other counties or is their situation too unique to apply to other counties?

Is the 2005-2006 legislatures pass "full employment for planners acts" by promoting less opportunity for local officials to avoid compliance with the statutes, ordinances and rules related to the processing of administrative land use applications? Will cities and counties that do not plan ahead be able to control their destinies without proper professional help, advance planning, and carefully-crafted ordinances?

What do you envision as the best possible result coming from changes in the ombudsman's office? What potential downside do you see? What can be done to maximize the chances that it could be beneficial in achieving your view of the appropriate planning process?

Do legislators understand development and land use regulation? What could be done to increase the level of understanding on Capitol Hill and thus the quality of legislation coming down?

Sunday, March 05, 2006

Lessons from the Bluffdale Case

As more information comes in about the Bluffdale disconnection case, there are plenty of lessons to be learned, or at least some cautionary tales to take heed of.

The website "Business Wire" posted a press release from Soreneson Development right after the judge's ruling was released, and there are some telling quotes there.

"'The judge's ruling is bittersweet for us,' said Don Wallace, vice president and COO of South Farm, one of the two largest owners who brought the lawsuit. 'For 13 years we've been struggling with Bluffdale over this issue. We can honestly say we tried as hard as we could to work with Bluffdale, but Bluffdale never approved anything on any of the 4,000 acres in question and has never provided services. So, it is time for us to move on.'

"'We are grateful for the wisdom of the judge's decision. We have complied with every single legal requirement of Bluffdale City, despite significant obstacles put in our way over the years,' said Dave Millheim, Development Associates partner. "We are sorry Bluffdale's back-tracking, foot-dragging and obstructionism forced us to go to court to implement our private property prerogatives and we look forward to working with the forward-thinking city of Herriman.'"

Whether you agree with the way Bluffdale City has handled this development request over time or not, the bottom line is the perception of the landowners and developers here, which I think has helped to drive the recent move toward SB170 in the state legislature and other similar discontent with the local development approval process. Lengthy plan development and application review processes tend to give a perception that the game is not being played fairly, and reaction is building.

Most telling for me is the actual language from Judge Quinn's ruling in the Bluffdale disconnection case. Pay particular attention to the judge's implied criticism of a planning process that never seemed to have the resources committed to it by the City to move it along in a timely manner.

"Given the magnitude of the (South Farm) project and the limited resources of the City, the planning process was time consuming. From South Farm's perspective, the progress was excruciatingly slow. In fact, the planning process that began during this time frame continues up through the time of the trial. Most of the plans remain either unfinished or unadopted.

"The particular elements of internal planning that needed to be finished before consideration of the South Farm Development, as well as the time estimates for completion of those elements, were moving targets that never seemed to be within reach.

"The City was, in fact, in good faith working toward completion of its planning process; however, there were clearly elements in the City that were hostile to Rosecrest-like developments within Bluffdale City. The Court accepts the reasonable inference that some foot-dragging was taking place -- whether intentionally or as a result of the natural human tendency to defer consideration of issues that are likely to be contentious. ...

"The City began immediate consideration of the application through its planning staff. Once again, because of the sheer size of the project and the limited resources of the City, the progress was unreasonably slow. ...

"The year following submission of the General Plan Application was characterized by dozens if not hundreds of meetings between South Farm and City staff, without any discernable progress towards submission of a proposed amendment for approval."

As the judge reviewed the requirements in the state code that must be met to approve a petition for disconnection, he spent considerable time and focus on the factor "that justice and equity require that the territory be disconnected from the municipality. (USC 10-2-502.7(3)(b)) The judge wrote,

"Having considered the evidence, the Court finds that justice and equity require disconnection for three reasons: undeveloped land has historically been considered appropriate for disconnection; Bluffdale City's zoning and planning process was characterized by unreasonable delays and changing standards; and Bluffdale's current political environment precludes an orderly development process. ...

"Bluffdale's zoning and planning process as applied to South Farm reflects unreasonable delay and arbitrarily changing standards. The Court has consistently ruled in this case that this is not a planning and zoning dispute. The Court cannot and would not disconnect property from Bluffdale City simply because it disagreed with a zoning decision made by the appropriate governmental authority. While justice and equity do not require any specific outcome 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 those elements.

"South Farm was attempting to develop a substantial piece of property that happened to be about 50 percent in Bluffdale and 50 percent in Salt Lake County. The County portion of the property is not only developed, but is nearly built-out. The Bluffdale portion remains raw land. The primary explanation for the difference between the two parcels is the delay imposed by the Bluffdale planning process. For approximately four years, South Farm was not even permitted to submit a development plan because Bluffdale was not sufficiently far along in its own planning process to consider such a plan. This internal planning process never seemed to achieve critical mass and remains largely unfinished to this day. Justice and equity do not require a city to bend to a developer's will, but they do require a timely response. Where a city has struggled, as Bluffdale has, to get its planning house in order and the result has been inordinate delay in responding to development initiatives, justice and equity may require that the developer be permitted to pursue its goals in another jurisdiction. ...

"Bluffdale's current political environment precludes an orderly development process. The political environment in the City is a factor that in justice and equity favors disconnection. The proposed South Farm development has been an emotional and contentious issue since the first public meeting in October 1997. The divisions have escalated to the point that virtually any decision made by the City in favor of development is subject to a referendum. In this current climate, it is simply not possible to negotiate with the City. The City's administration has in effect become an agent with no authority, who can say no, but can never say yes, and provide a reliable decision not likely to be attacked by referendum. Leaving the property in the City will only prolong this dysfunctional and contentious process. 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. That unwieldiness is a factor favoring disconnection in this case."

Quite an indictment by the judge on the planning process, as he sees it was carried out in one community. Lots of lessons for planners here, if we take heed.

Bluffdale, of course, disagrees with the conclusions of the judge. There are also several other factors that play into the disconnection decision that the judge addressed that may need future attention, like the definition of peninsula. Bluffdale City plans to appeal the ruling, so it may take a while before we have some definitive answers to these issues.

Friday, March 03, 2006

So Long, "Utopia!"

To many, Oregon was considered to be the nirvana, the "utopia" of planning and orderly development. The state, and particularly the Portland metro area, were often held up as examples of how good planning could result in the best of places to live.

I have visited Portland and Oregon several times, and while I think much of the talk of Oregon as "planning utopia" was overdone (Portland still has run-down areas, traffic jams, lack of affordable housing, and other problems that beset "less enlightened" areas), I was struck with how dramatic the urban growth boundaries resulted in clear lines between developed and undeveloped areas.

But all that national and international notoriety may now slip away (or rather, be replaced by another type of notoriety) as Measure 37 takes effect.

Recent stories in The Oregonian point to this. "Advocates of Oregon-style planning were shocked voters passed the property rights law, said David Goldberg of [Smart Growth America.] 'People who visit Oregon come away in awe,' he said. 'It's really unmatched.'" says a story last week. "Measure 37 has provoked fierce debates over Oregonians' values since voters approved it in November 2004. Oregonians widely view it as a shift in the state's approach to planning, which has been to preserve the countryside for agriculture and concentrate people in cities," says another story yesterday.

It's interesting to see how land use actions are actually playing themselves out now, as well. Another Oregonian story notes that Measure 37 allows longtime landowners to apply for relief from land-use rules adopted after an owner acquires property. If a landowner can show that the value of the land has been harmed by the regulatory action after it was acquired, the government responsible for the rule is required to pay for the loss of value, or waive the land-use rule.

"In all cases approved so far in Clackamas County (Portland area), the rule was waived, an approach that's not about to change when the county's process ramps back up (following the Supreme Court ruling). 'Where would you get the rather astronomical sums to pay owners?' asks (Bill) Kennemer, (county board chairman)."

"All the while, landowners are calling. 'It's been plenty busy,' said Jennifer Hughs, Marion County senior planner. 'Mostly they want to know where they are in the process and what happens next.'

"At the same time, county commissioners want to consider changing a process that they think had become cumbersome. Measure 37 does not dictate a process for how counties consider claims, so Clackamas County officials established one: After landowners file their claim and pay a $750 application fee, the county has 180 days to review the application, notify neighbors, hold a public hearing and make a decision. Hearing held by commissioners became marathon affairs, county staff said -- three times a week, more than four hours at a time, 20 claims at a sitting.

"The public hearing process is important, Kennemer said, because Measure 37 provides very little protection for neighbors who might be affected by a claim. At least a hearing provided a public forum, he said. 'But that creates a workload and sets up a process that maybe is not the most efficient to operate.'"

And what does all this mean for the rest of us? "Measure 37 proponents will use (the) Supreme Court ruling for political leverage in Oregon, and as a selling point for look-a-like proposals in other states," one Oregonian story says. "For now, (Oregonians in Action leader David Hunicutt, author of Measure 37) is busy fielding congratulatory calls from property owners and counterparts across the country. Activists in at least a half-dozen states, including Washington, have modeled legislation or initiatives after Measure 37. One such person, Mark Nix, ... director of the South Carolina Landowners Association, drafted a bill for his state legislature with Hunnicutt's help."

Some say that SB170, introduced in this year's Utah legislative session, was a spin-off of Oregon's Measure 37. I personally don't think so -- I think it was something crafted independently by some of the developer community here in Utah because of perceived problems with the land use application approval process. But I do think there is now a very volatile atmosphere around, and if planners and local government officials are not careful in how development applications are handled, we could see more moves to something like Measure 37.

Wednesday, March 01, 2006

Protest at the Wrong Time

Story in this morning's Trib about a petition signed by over 1,700 residents in Holladay to keep a Walgreen's out of the Village Center redevelopment area. Seems that there are already three other pharmacy/drug stores near the location, and residents object to another, especially one that is part of a national chain.

I haven't made myself completely familiar with the details of the proposal, but it sounds like it is one that is allowed by existing city ordinance, and thus something that residents really can do very little about at this point (help me out here, Paul).

The city hasn't made it easy for the applicant, making them go through, among other things, an extensive design review process. But, bottom line, it sounds like a use that is allowed by city ordinance and one that the applicant has properly applied for and gone through the process.

Now the residents want to stop it, and have a huge petition to make their view known. Unfortunately, citizens often don't understand that the time to protest was when the city was originally considering adopting the ordinances that would have allowed for such use in the first place. If the city were to turn the application down now on the basis that residents simply don't want it, there would be more than enough grounds for the applicant to sue and either be granted the use or be granted compensation. Residents simply don't seem to understand this, and think that a petition is valid grounds to overturn existing legal rights of others.

This situation reminds me a lot of the Wal-Mart in Centerville battle, which was the same type of situation. Because of the extensive resident opposition, the city review and approval process became very long and drawn out, but the applicant met all the hurdles thrown in its path, and had a legal right to proceed, much to the dismay (and misunderstanding) of many of the residents.

Making such distinctions more apparent to citizens and to elected officials is something that planners and staff must do a better job of.