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.

4 Comments:

At 11:03 PM, Blogger ARCritic said...

"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.

But don't you think that what was in SB170 in regards to legislative vs admistrative land use actions is really what the developers want? And are they going to settle for much less?

I mean the developers are saying that they want a system where the cities have to approve their developement or go to court. And at court the developers want to make the city then prove that the developement is harmful.

Isn't that then like making the defendent prove he is not guilty?

 
At 11:24 PM, Blogger ARCritic said...

You left out one other thing Mr. Hutchings said that developers want.

Developers still would like specific deadlines for zoning decisions.

I work in an industry where I often have to file things for approval from a state department. Many states have enacted deemer provisions, which say that if they have not approved or disapproved a filing within a certain number of days (usually 30) then it is deemed approved. Most states are good about getting things taken care of within that time limit. However, there are a couple that have in place policies where in they will ask you if you are willing to waive that time frame because their law also says that something deemed approved can be disapproved upon a finding that it doesn't comply. Most companies of course are willing to waive the time frame because you really don't dare go ahead with a project with the possibility that it could be halted at any time.

On state was challenged on that policy and the court determined that they really could not do that so now that state will find almost anything even if it is trivial or even a misunderstanding or misapplication of the law to deny, prior to the deemer. Then they will work with you to correct or work out a compromise so that you can then refile and get it approved. Very often in that state it takes longer than the average to get then ultimately approved because of their strict adherence to deadlines.

Goes back to the old adage be careful what you ask for, you might get it.

 
At 8:02 AM, Blogger Wilf said...

Lots of good points, arcritic. On the legislative-administrative issue, from a pure planner standpoint, having the adoption or amendment of the general plan be the only legislative action has some appeal. Planners generally feel that the general plan doesn't mean much under our current legal framework, yet in planning theory it is the linchpin to everything. However, because of the way laws and legal challenges have evolved, there is much more that is "legislative," and changing that will indeed have some unintended consquences. I've talked with Neil Lindberg quite a bit about this; Neil lived and worked for several years in Maryland where the general plan is much more central to planning process. He says that many of the disputes we have at the rezone level here simply get pushed to the general plan stage, often resulting in much lengthier times for review and consideration. Like you say, be careful what you ask for... .

With regard to time frames, we do unfortunately sometimes have local governments that take far too long to process applications and render decisions and get the process moving along. But, again, as you say, be careful what you ask for, things will often not turn out the way we think they should.

 
At 2:33 PM, Blogger Prof Simmons said...

We might ask ourselves what the planning world would look like without Euclid v. Ambler Realty. We might have real "As of Right" development that would incorporate the following principles:

* Planning should include a presumption in favor of property owners, requiring public hearings only if parties directly affected by the project identify tangible impacts on their interests. This approach does require that developers properly notice neighbors of proposed developments.

* Local planning decisions should be protected from regional or state interference unless a clear public interest exists or regional spillover effects are not addressed in the proposed plan.

* Developers should be expected to modify projects to minimize negative impacts, but these impacts should be tangible and measurable.

* Property owners and developers should bear the costs of property development, including infrastructure directly associated with that development. However, property owners should be given latitude to determine what kind of infrastructure is appropriate.

* Standing in public hearings should be limited to parties clearly and directly affected by a proposed development.

* Development approval should be based on a set of clearly defined and stable rules, rather than on prescribing specific land-use outcomes. Stability can be enhanced by requiring a supermajority to modify planning board decisions and by requiring pre-application meetings.

Would such a world look much different than the one we now have? Would there be less controversy and more cooperation? I do not know, but I would like to know of any experiments readers of this blog have with similar approaches.

 

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