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Discretionary Land Use Regulation

June 14, 2021 by admin

This article does not necessarily reflect the attitudes or opinions of APAUT or the APAUT Executive Committee.


Today I’m sending you an opinion email from me about a trend I’ve noted and talked about for some time now – discretionary land use regulation.

In recent years, it has seemed to me more and more that local government review and approval of development proposals has become much more dependent on negotiating conditions, and frequently enshrining them in accompanying development agreements, with little regard to the underlying zoning.  Such a trend is contrary to the foundation rules that I learned about land use back in my graduate school days, that part of the premise of land use regulation is to develop policies, craft regulations that enact those policies, and make those regulations understandable and consistent, so that property owners and other interested parties (like neighbors) know what to expect.


But it appears now that many of our communities go through negotiation to either limit what a development proposal is allowed to do within the existing zoning, or craft exceptions or variations from those rules that may exist in the zoning.  We are seeing an increasing trend where applications for rezones now involve negotiating the provisions that will apply with those rezones, often requiring development agreements that in essence become new zones.  This issue was addressed to some extent in the court ruling for the redevelopment of the old Cottonwood Mall site in Holladay City last year, where the court indicated that such “new” provisions in development agreements must go through the legislative process.


I don’t know that I have a particular objection to doing land use in this way, but if we are, we need to be aware that there are definitely impacts and implications.  What prompted me to write about this again now is a recent piece that appeared on the Planetizien website by Michael Manville, Associate Professor of Urban Planning at UCLA, titled The Pretext Problem: The Pitfalls of Planning While Bargaining.


Among the many concerns that Prof. Manville discusses is the idea that discretionary or variable land use regulations “…erodes the certainty and transparency that zoning nominally thrives on. Zoning is supposed to be a community property right, and property, as Jeremy Bentham famously said, is “nothing but a basis of expectation.” Those expectations become less reliable when the purpose of the zoning-as-written is unclear. Does a density restriction mean a community wants low density, or does it actually mean the community wants some unstated package of other improvements and will trade density to get it?”

I experienced this issue when we were looking at how to implement transfer of development rights in Davis County.  The goal was to preserve environmentally sensitive areas such as steep slopes or riparian areas.  To do so in a way that did not unfairly burden those who owned these properties, we were looking to allow the potential density that would normally be allowed by the zoning  to be shifted to other locations where higher densities might be desirable and beneficial.  But what made it hard to make this work was the idea that we had to have places where we wanted the higher densities, but then zone them by right to be less than that so the other development rights could be transferred to them.  That meant that while there were areas of the community where it was felt higher density was appropriate, unless someone had density rights to transfer, that area would be developed at the less-than-optimal density.


This goes to the problem that Manville identifies in his piece, that such “regulation” is a pretext because the stated purpose of the code is not really what is desired, but instead other things are.  He uses parking standards as an example of this:


“The parking requirement, in short, was pretextual: Its value to the city lay not in stated intentions of the zoning code (i.e., ensuring the presence of parking spaces), but in what developers would do to escape it. The city used the parking requirement as an indirect way to preserve historic character, not a direct way to guarantee vehicle storage. It might have been on the books as a transportation mitigation; its real purpose was as a bargaining chip.”


Manville goes on to note:  “Discretion is the mother of pretext. When cities use rules to bargain with developers, the rules quietly take on a different role. Discretionary bargaining requires both stringent regulations and a willingness to waive them, which means that in a discretionary regime, the optimal zoning code will have rules that are both onerous and (at least some of the time) unnecessary. The rules need to be onerous to get developers to the table, and unnecessary so they can be traded away at little cost.”


Manville cites a study he and others did in 2018 that suggested citizen dissatisfaction with local land use decisions is often driven by such discretionary land use actions.  Again, it goes to the predictability of the regulations that are in place.  Can those stated rules be relied upon?  Over my career, I frequently heard developers say that the one thing that was most important to them in the land use process was predictability and consistency – that the rules could be read and understood, and they were consistently applied.


The idea that land use regulations were and should be predictable and consistent was embodied in a provision included in HB409 in this year’s legislative session.  In addressing this  tendency to do more and more land use regulation by development agreement, this requirement was included in a new section in the LUDMA on development agreements:

 A municipality may not require a development agreement as the only option for developing land within the municipality.


There’s plenty for thought and discussion here on this topic.  Read Manville’s piece, and let’s talk!


Wilf Sommerkorn

Co-Chair, APA Utah Legislative Committee


Thanks for the update and the resources regarding ADUs and parking. As a general note, I agree that communities need to have some flexibility in how we implement these ordinances.

On a practical basis, Millcreek has some narrow ( > 60 foot) residential streets that are also in areas where we get a lot of snow. We almost always struggle with on-street parking problems on these streets, especially when they need to be plowed. We need to have some ability to limit the impact of additional on-street parking in these neighborhoods, if we are to ask them to accept the possibility of additional dwelling units. I note that these neighborhoods where the streets are narrow and there is a lot of snow on occasion are also neighborhoods that are *not* well served by transit.

On a political basis, Millcreek staff have worked very hard for almost two years to help build a community consensus for an ADU program. As with any major change that we are asked to consider, it’s been a difficult process. Dealing with parking is “part of the deal” that I think we must bring to the table if the community is to embrace this strategy (which the legislature has asked us to work on, by the way). I don’t want the perfect to be the enemy of the good, but I also note that some in our community are aware of the perennial threat of the Legislature nibbling away at our local land use authority and, in general, I think that sometimes makes it more difficult for us to do our jobs to affect positive change in our neighborhoods. It’s hard enough to have the ‘density talk’ or ‘the sign talk’ with Millcreek residents without the threat of legislative intervention hanging over our heads.

Anyway, this is just the opinion of the line staff in Millcreek, and shouldn’t be construed as anything beyond that.


Francis Xavier Lilly, AICP
Planning Director
Office: 801.214.2752



Super timely email. Right at this very moment, the Millcreek Planning Commission has before it a draft “City Center – Development Agreement Overlay Zone Ordinance”. It was first presented to the planning commission at its May meeting and was continued for further discussion to the June meeting – next week. The concerns and objections from the planning commissioners reflect, in a less sophisticated manner, your concerns and the concerns of Michael Manville: picking winners and losers, quid pro quo, bargaining for developers to pay for city amenities, reductions the standards in the city center overlay zone ordinance, which was adopted in 2020.

The adoption of this draft ordinance is being pushed hard by the city administration — as if they (the city) is on the cusp of development deals with prominent developers and need this ordinance now – as opposed to amending the standards in the underlying zone ordinance. All the community councils gave their approval for its adoption, but we know very few if any community council members read the draft, and even those who did would not have the background to think critically.


Tom Stephens

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