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?

1 Comments:

At 7:40 AM, Blogger James said...

I think in some ways, things don't work that way because most city's general plans are really paid much attention to. Especially when it comes to generalized land use designations. Does it get any more boring, for planners, citizens or leaders?

In a semi-related side comment....When are we going to realize that in most (but admittedly not all) situations, regulating land use (in a Euclidean sense) is an outdated practice?

Anyway, if the situation changed to where that was the only legislative decisions were at the general plan level, you can bet that cities would wake up, take their GP seriously, and spend some quality time crafting and enforcing it.

But here's a question...would cities just be able to shift all the legislative enforcement into the general plan arena, making all items subject to legislative review? It would seem that might be a way to keep doing what they're doing, just under a "different" set of rules.

 

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