ARE YOU HEARING THIS?

July 30, 2023 by Nicole Mason
Policy/Legislative

By Wilf Sommerkorn

Utah Land Use Politics Blog

July 28, 2023

If you’ve been following my trends of thought the last couple of years (admittedly a difficult thing to do, even for me!), you’ll know that I’ve been on kind of a crusade about public hearings for administrative land use actions.  Rather than go into all the detail again about those issues, just go back to the blog entries on this site for May 9, 10, and 12, 2022.  I’ve also done several conference sessions on this topic, such as this one at the ULUI conference and this one at the APA Utah conference.

The bottom line of all this for me is, either we should not hold any hearings at all for administrative land use actions, or we should create a new category of hearing for them and call it something like an “administrative hearing,” which would have rather different rules than those for the public hearings we hold for legislative land use actions like rezones, general plan adoptions or amendments, and land use code amendments.

The whole issue has gotten attention again just recently because of some goings-on in Wasatch County.  You may have heard about the controversy going on for a while now about the proposed Heber Valley LDS Temple, particularly about its height and about its nighttime lighting.  While these wranglings have a lot of interesting land use administration implications in and of themselves, I want to focus on the latest issue to pop up on this, having to do with a proposal from the citizen group to amend the county’s ordinance for these kinds of controversial projects to require what they’re calling Public Impact Discussions.  What’s concerning about this proposal is how it applies such discussions to both legislative and administrative land use actions.  Let me explain.

The law firm of Ray Quinney & Nebeker submitted a proposed land use code amendment to Wasatch County to require the holding of Public Impact Discussions for certain land use actions.  Note: RQ&N is also representing a group of citizens who are opposed to the county’s recent amendments to the Dark Sky code and it’s action regarding the proposed LDS Temple.  The Wasatch County Planning Commission considered the proposed code amendment at its July 13 meeting, but took no action, voting instead to continue the item.

The code amendment by RQ&N, per the county staff report, proposes:

… establishing additional requirements for noticing and public meetings for certain land use applications. These additional noticing requirements are proposed to apply to amendments to Wasatch County Code, amendments to the General Plan, amendments to the Wasatch County zoning map, Conditional Use Permits, Cannabis Production Establishments or Medical Cannabis Pharmacies, and all subdivision applications except for Minor Agricultural Subdivisions.

The thing of note to me about this is the requiring of such public “discussions” (another way of saying “hearings?”) for both legislative and administrative land use actions.  Currently under Utah State code, there are requirements for the holding of public hearings for legislative land use actions, but no such requirement for administrative actions.  As noted in my previous writings and presentations on this topic, the nature of what needs to be considered in legislative actions versus administrative ones is dramatic – one is entirely appropriate for opinions, while the other must be fact- and evidence-based.

The purpose of these new Public Impact Discussions is, according to the applicant:

…is to “provide for sufficient public engagement on certain issues that have an outsized public impact on County residents and/or County policy.”

Sounds an awful lot like a legislative kind of hearing.  How, then, is this to be applied to conditional use and subdivision applications, which are administrative and not legislative?

You can read more about what happened as the Wasatch County PC discussed this proposal in a recent Park Record story, and it will be interesting to see what ultimately happens.  The Wasatch County planning staff has recommended against adopting the proposed ordinance amendment, for a variety of reasons (see the staff report).

For my purposes, what this proposal has done is point out again the need to consider more clearly defining a separation in the hearings that may be held for these two different kinds of land use actions.  This became an issue in the last legislative session as well, as an early proposal of the changes for subdivision plat review and approval stipulated a public hearing to be held (it was ultimately changed to allow for the holding of one public hearing if the local government so chooses).  There was also a bill passed that would have required public hearings at the local government level for virtually every action that might be taken, including for all land use actions.  The language of the bill for ultimately amended to exclude actions taken by a planning commission.  But this just continues to reflect the trend that seems to be gaining momentum among citizen groups, and thus making its way to elected officials, that all government actions should be subject to public comment.

If this is the direction we’re going to head, then I would even more strongly recommend that we consider creating a new category of hearing for administrative land use actions, perhaps along the lines of what the state of North Carolina has in place, which are “evidentiary hearings” for administrative land use actions.  As noted in my 2022 blog postings, there’s a lot of good information out there about those.

To underscore my thoughts on this, I’ve had discussions with the planning directors in a couple of cities in our state whose land use codes still require public hearings to be held for conditional use applications.  For all the reasons outlined in the previous blog postings and conference sessions, they would like to change this, preferentially by doing away with that public hearing requirement.  But it is becoming more obvious that such actions would likely result in a reaction from the public (and perhaps from elected officials responding to the public), so the best approach may be to create a new class of hearing for administrative actions, with its own set of rules.

Time to get serious about this.