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.

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