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May 12, 2022 by Nicole Mason


May 9, 2022

On April 25, I posted on this blog about public meetings and hearings, the issues with the way they are conducted these days, and whether they are actually helping or hurting in the overall process of land use administration and policy-making.  In my May 6 post, I indicated that I have recently found some interesting research on this topic, and that I would share.  Well, it’s sharing time!

The first piece I want to write about and get you all to take a serious look at is one by Yale Law School Clinical Law Professor Anika Singh Lemar (what does clinical law professor mean?  According to Wikipedia, it is someone who is a member of the profession who is engaged to provide practical (clinical) instruction of students, in this case, the law.  I guess a few years ago I could have been identified as a clinical planning associate at the University of Utah planning program, as I taught a class about the politics of planning!  But I digress here…). She teaches the Community and Economic Development clinic at the law school, which provides assistance to housing developers, financial institutions, farms and farmers’ markets, fair housing advocates, and neighborhood associations.  She is also the Editor-in-Chief of the American Bar Association’s Journal of Affordable Housing & Community Development Law.

Her article, titled Overparticipation: Designing Effective Land Use Public Processes, was published last year in the Fordham Law Review.

Lemar describes in her piece many of the same problems we’re all familiar with regarding the public participation processes in land use meetings.  She says that the common refrain heard from academics and professionals alike is that these public participation activities are needed and necessary to ensure the involvement and buy-in of the community citizens, in part to counteract the malevolent interests of those who are only interested in building to make as much money as possible, usually against the community interest.  However, Lemar turns this notion on its head when she notes:

In fact, local control, community empowerment, and public participation are among the building blocks of residential segregation. It has long been the case that there is nothing inherently inclusionary about American notions of “community” or “public participation.”

How … can earnest cries for public participation to empower poor and marginalized people be squared with the use of the same tool to exclude poor people and people of color from tony, well-resourced neighborhoods? The community development and land use literatures are rife with the assumption that, when it comes to community control and public participation in development and redevelopment projects, poor and marginalized people benefit from more community engagement and public participation. Often, however, when it comes to land use decision-making, public participation is utterly dysfunctional—and poor people bear the brunt of that dysfunction.

Lemar recounts in her article the history and rationale behind public hearing requirements and processes for land use actions, much of it for good reasons, such as the 1960’s style urban renewal that often occurred without public input.  But then she describes how these processes have been essentially co-opted by a particular set of community citizens – mostly older, white owners of single-family homes in suburban-style neighborhoods.

There’s lots of background and detail in her piece that planners and land use attorneys will find of interest (or should!), but I’ll just commend it to you to read.  Here’s just a nugget that I came across that so succinctly sums up what part of the bigger problem is:

While at least one scholar acknowledges that conventional arguments in favor of public participation empower NIMBYs alongside the urban poor, no public participation proponent proposes a mechanism by which to distinguish the disenfranchised poor from the well-connected rich.

Or how about this one:

If the planning process is robust, we should be able to make the development approvals process more predictable. Most forms of development ought to be as-of-right under the zoning resulting from the planning process. Skeptics might point out that development approvals processes attract more participation than planning processes do. That, however, is precisely the problem created by the current system. Under the current system, there is little incentive to participate in the planning process, as the approvals process for any given development, subject to the whims of those who choose to testify, does not respect the planning document. As a result, fewer people participate in planning, and those who do participate are undermined by later participants in the development approvals process. If the planning process mattered and was less subject to being overruled during later development approvals processes, it would attract more attention and participation.

I want to talk briefly about what Lemar comes up with as possible fixes for these public hearing problems.  She uses as part of her solution the Revised Model State Administrative Procedures Act, which includes a section on public participation and how it should figure into decision-making processes.  The main difference with this is that the Act does include input from public processes, but also requires that decisions be made on the basis of independent analysis undertaken by the agency.  This is a good model for the administrative portion of the land use actions we undertake, and Lemar and others acknowledge that.  She indicates that there should be two different public involvement processes:

Similarly, legislatures, local governments, and courts ought to distinguish between rulemaking (zoning regulations) and contested cases (development approvals) in the land use context.

She advocates for states (in most cases, that means the legislature) setting out a dual track process for public input on land use actions.  For legislative actions, she says:

… (the) planning process ought to be framed in terms of change. What about their community would participants like to see improved? As Warren Logan suggests, even when they do not have the expertise to posit solutions, residents can identify problems which then might be solved through better planning and land use decisions. A planning process that explicitly describes the problem paves the way for later determinations of whether the problems have, in fact, been solved or exacerbated. In the context of planning and rezoning decisions, bureaucrats and commissioners ought to solicit public input widely, from within the city limits and beyond. Logan describes attending community festivals and get-togethers to solicit perspectives… . He does not rely exclusively on traditional public meetings, which, he explicitly recognizes, preference the perspectives of “wealthy homeowners.” There is no reason to preference the neighbors, and participation ought to be solicited broadly. While zoning enabling acts require that notice be given to neighbors, anyone ought to be able to register with the state to receive notice of land use hearings. This would allow affordable housing advocates, the homebuilders’ lobby, disability advocates, advocates for social services agencies, and others to receive notice and share their expertise. Crucially, however, the results of those participation processes must be filtered through planners and commissioners required to consider factors other than public opinion as presented in the public process.

Traditional public hearings are insufficient and should be supplemented with outreach to community organizations, historically disenfranchised communities, communities unlikely to attend public hearings, and communities susceptible to silencing by traditional public hearings. The zoning enabling act or zoning ordinance ought to set precise processes for outreach and require the planning agency to interrogate whether the community engagement process was effective. The process ought to reach those least likely to attend and testify at traditional public hearings through outreach at public schools, neighborhood festivals, and religious institutions: places where people congregate even if they do not have strong feelings about real estate development.

This (and more!) is what Lemar talks about for legislative land use actions.  She even brings up the need to counteract or balance “neighborhood defenders” (from a research work by Katherine Einstein at Boston University – more on this coming in a future post!) and “homevoters” (remember Zoning Rules! by William Fischel?).  The public often make statements in such legislative action hearings that are just plain untrue – like “this rezoning will cause traffic to make our local street fail” or “there will be more children than the schools can handle.”  In such cases, Lemar refers back to the Standard APA:

Under the Model State APA, following receipt of public comment, an agency must issue a final rule, accompanied by an explanatory statement that responds to “substantial arguments made in testimony and comments.” … Similarly, the AFH rubric required agencies to “[i]nclude a summary of any comments or views not accepted and the reasons why.” The requirement that the agency explain its reasoning and respond to the arguments is key. Narrowing the scope of testimony, as permitted by the Model State APA’s evidentiary rules, does not address the problem of veracity. Therefore, rather than allow an individual’s testimony—whether or not true—to stand on its own, the process ought to require bureaucrats and commissioners to address in writing the substance of all comments made, thus limiting a comment’s effect and impact if it is irrelevant or untrue or a resident overstates its importance. Requiring planners and commissioners to issue reports elucidating the results of public participation and the planners’ and commissioners’ responses to those comments serves an important documentation role, as well. … Planning and zoning laws should require planners and commissioners to explain their decisions rather than simply say that members of the public supported or did not support a particular choice. If an explanation is not required, there is no protection against the possibility that a proposal simply lost a public hearing popularity contest.

For administrative decisions, Lemar says that once the robust legislative planning process has taken place and rules are crafted that reflect those outcomes, those rules should mostly allow by-right development.  In cases where there may still be reviewable decisions, hearings and input should follow a different set of rules:

In contested cases, an evidentiary hearing is required if the applicable constitution or statute so provides. Evidentiary hearings are public but not generally open to public participation. One may seek to intervene if the applicable statute expressly permits or if one has an interest that may be adversely affected by the proceeding. The same should be true of development approvals. The Model State APA does not incorporate the Federal Rules of Evidence, but it does set minimum standards for the evidence presented in a contested case evidentiary hearing. The Model State APA requires that evidence be relevant and material: “The presiding officer may exclude evidence in the absence of an objection if the evidence is irrelevant, immaterial, unduly repetitious, or excludable on constitutional or statutory grounds or on the basis of an evidentiary privilege recognized in the courts of this state.”

Okay, I’ve gone on long enough with this post, I think you get the idea.  Read Lemar’s article.  Then I have one more to talk to you all about next, from a guy at the University of North Carolina School of Government, and then also about Katherine Einstein’s research on “Neighborhood Defenders.”  After that, we need to have a serious talk about what we can do about our required public processes for land use!



May 6, 2022

Here’s a follow-up to the Millennials’ call for allowing more housing to be built (see April 28 blog post), this one by a local Millennial!  This is from a TEDx BYU Talk by Dejan Eskic, a senior policy analyst at the Gardner Policy Institute, who is:

“… a 30-something-year-old who is fully employed, my family and I have spent 18 of the last 24 months living in my in-laws’ basement. Not because we wanted to, but because we couldn’t find a house to buy,”

The problem, Eskic says, is due in large measure because:

Utah was already the fastest-growing state in the country over the past 10 years, and was already grappling with a housing shortage that fueled its affordable housing crisis long before the pandemic hit. Yes, Utah did see a spike in-migration from states like California in recent years, but it’s important to remember the majority of Utah’s population growth over the years has come from natural growth.

What does Eskic see as the solution?

While there is no one solution, Eskic said — noting that home construction needs to take advantage of technology to become more efficient and build homes quicker — another solution “has to do with us and how we grow and where we grow.”

But, he says,

“The biggest obstacle to more housing is us,” Eskic said. “We keep having kids, but when obtainable and affordable housing is proposed in our neighborhood, we scream and shout. And that mentality is really robbing our kids of a stable financial future.” Eskic went on to read a letter from a concerned citizen to a local Utah city council, in which the resident opposed a proposed townhome development and said they didn’t want to “live next to the kind of low-income people who typically reside in high-density housing. I do not want their delinquent children attending the schools that my children attend. I do not want to deal with the increase in crime and drug use that inevitably accompanies such high-density housing units,” Eskic read from the letter. “I do not want my home values to decrease.”

What to do?  Eskic continues:

“… we really need to lead with empathy and understanding, and ask ourselves, ‘Why do we need cheaper housing? Who’s it for?’” Eskic said. “It’s for all of us. It’s for our community, it’s for our kids, so we can have a stable community.”

Maybe the problem is how we make land use decisions, or at least how we obtain public input and what we do with it.  I have just recently found some really interesting research pieces on this topic, which I will be sharing in future posts.  Stay tuned!



May 5, 2022

There’s been a lot of talk about how Covid has impacted community growth and economics.  There’s even a cogent argument that much of the housing affordability crisis, at least in some places, has been due to Covid.  Utah’s rapidly rising costs for housing began prior to the covid outbreak, but it has likely exacerbated it.  Here’s a viewpoint on how covid has impacted housing costs from last week’s issue oh The Economist:

How the pandemic has changed American homebuyers’ preferences

Since March 2020, American house prices have risen by 33%. But the increase has not been evenly spread. The covid-19 pandemic, and the lockdowns and restrictions it inspired, have changed where homebuyers want to live.

In Florida’s Collier County, a haven for golfing pensioners, house prices were flat in the two years to February 2020. Since then, they have risen by 57%.

Warm-weather areas across the American south have seen some of the biggest increases in house prices.

Take Williamson County, Texas. The area ranges from the fringes of bustling Austin to its northern exurbs, and is home to Dell, a computer firm. House prices have grown by 75% in the past two years, compared with just 5% growth during the previous two—the fastest acceleration in America.

Other suburban and exurban counties have also seen big rises, especially ones with good weather. These areas often contain affordable housing and industries friendly to remote work.

To detect these patterns, we used a monthly home-price index from Zillow, a website, for 2,563 of America’s 3,006 counties since 2018. We then built a statistical model to find what places with similar recent price-growth rates have in common.

Covid itself has hurt the market mainly in hard-hit areas. In the 100 counties with the highest official death rates from covid, price changes were four percentage points lower than you would otherwise expect.

Lifestyle changes had bigger effects. Because city dwellers could not meet face-to-face, they dispersed, mostly to the suburbs. Holding other factors constant, price changes were 10-15 percentage points greater in middling-density counties like Williamson than in big cities or rural areas.

Covid has also led people to spend more time outdoors. In turn, buyers have bid up homes in areas where it seldom rains, summers are balmy or, like Collier, winters are mild. Weather explains 16 percentage points of the gap in price gains between sunny California and frigid Minnesota.

A final factor is remote labour. Before the pandemic, geographic inequality had been rising: areas that were already expensive saw the biggest price gains. In counties that rely on industries, like construction, in which people have to turn up to work, this trend has continued since 2020.

However, the pattern has reversed in areas dominated by industries amenable to remote work, such as finance. Since covid emerged, price gains have been large where housing

was previously cheap, and smaller elsewhere. This supports recent research showing that remote workers tend to move to reduce their cost of shelter.



May 4, 2022

The “wave,” or should I now call it the “tsunami,” of zoning reform continues to grow and sweep over the country.  To wit:

If anything shows growing nationwide attention to an issue, it’s when the federal government proposes some kind of action.  In the March 26 release of President Bidens’ budget proposal for the next fiscal year, included was an item:

… for creating a $10 billion state and local grant program meant to encourage and support zoning changes that would allow more kinds of housing to go up in what are often largely white and wealthier neighborhoods.

As reported in the online newsletter for state and local government officials, Route 50, the proposal would use federal grants as an incentive to spur changes with local rules, which critics blame for stifling affordable housing and fueling racial inequities.

“U.S. Department of Housing and Urban Development spokesman Michael Burns noted that in addition to proposing funding for states and localities changing their zoning rules, Biden as part of his budget is requesting a $50 billion increase in Low-Income Housing Tax Credits, as well as $25 billion to provide affordable housing grants to states and local housing finance agencies.”

Things are getting serious when the Feds step in like this.  The budget proposal, however, must first make its way through Congress, so there is no assurance that these programs will come about.  Still, it points out what is on the radar screens at the national level – zoning reform!

Next up, here’s a report from Planetizen’s editor James Brasuell as he attended the APA National Conference in San Diego this week:

I tried to attend two conference sessions on zoning reform. The first one, hosted by Jason L. Jordan, APA public affairs director, included YIMBY rockstar and former mayor of Culver City, Alex Fisch. The wall-to-wall standing room-only capacity of the room was too much for my post-pandemic nerves when I arrived there three minutes after the session started. From what I saw on Twitter, the room was full beyond capacity several minutes before the session started. I think this is maybe a sign of latent demand in the profession for zoning reform. Has the housing affordability crisis finally hit a tipping point where planners all over the country are finally getting behind the cause, following the example of the avant-garde of MinneapolisOregonCalifornia, and, just last week, Maine?

I did manage to attend a working session where attendees gathered around tables to discuss the challenges and opportunities of zoning reform. The room was clearly behind the cause, but nobody knows better than planners the many obstacles to achieving the desired effects of zoning reform—most namely cultural resistance from a nation of aspiring single-family detached home owners and market considerations like what developers are willing to build and bankers are willing to finance.

Standing room only!  That says something about the expanding nature of this issue.  To James’ point about cultural resistance to zoning reform, comes this: 4 Cities Sue to Stop New California Law Permitting More Homes in Single-Family Neighborhoods.

“It is undisputed that planning and zoning laws are matters of municipal affairs,” the petition states. “The constitutional right of municipalities to zone single-family residential districts and the sanctioning principle upon which that right is founded has been well settled law for almost 100 years.”  By enacting SB 9, the state “eviscerated a city’s local control over land use decisions and a community-tailored zoning process,” the petition states.

Brasuell also mentioned the latest happening in Maine.  The state legislature there last week passed a bill that makes it easier for ADUs to be built in all R-1 zones throughout the state.  This was a considerable step back, however, from the bill as originally proposed by the Maine House Speaker earlier in the session.

The Speaker removed a provision to create a state board that could have overridden local project decisions as well as the provision that would have blocked growth caps.

The more stringent provisions were removed as opposition from Maine’s municipal association found sway with a number of legislators.  Even with the watering down of the bill to just deal with ADUs,

the bill was still opposed by the Maine Municipal Association along with most — though not all — Republican lawmakers.

The Maine situation reminds me to some degree of what has been happening here, where more draconian zoning reform measures have been discussed by lawmakers and state level policy people, but negotiations with municipal officials have resulted in less sweeping changes in state codes.  As I’ve noted previously, this is likely the better way to go because in places where zoning reform has been mandated from the state level without much regard to local concerns, the foot-dragging and downright opposition to implementation is dramatic.  In our case, the “reforms” that have been passed have generally had the support of the League and municipal officials, in large part because of the dialogue that has taken place.

In the last meeting of the Utah Commission on Housing Affordability, it was noted that their next meeting on May 11 would likely focus on the models for evaluating progress on housing affordability enhancement, including maybe the idea of “regional fair share” for communities (I opined on this in my March 23 blog post).

While we maybe are not being completely engulfed by the zoning reform tsunami as some other places are, we should by no means be taking our eyes off the horizon to see what else may be coming!



May 3, 2022

The list of legislative interim study items I posted yesterday was disappointing to me in one big way – there was only a passing mention of annexation.  As I’ve noted in previous blog posts (see December 31 and March 10 posts), the annexation provisions are a mess in our state code.  It has been the subject of intense discussion by the land use task force in the past, and was even seriously being looked at for major changes, if not outright recodification, at one point before being shelved because it was complicated and fraught with political landmines.  But it still needs to be done!

Two recent news stories highlight the ongoing need for this issue to be resolved – residents of a subdivision petitioning to disconnect from a city, and a local boundary commission action that would allow for property from one community to be moved into another, though it is questionable that state code allows for such an action.

My good friend and colleague, the former property rights ombudsman Brent Bateman, and I have been brainstorming things that seriously need to be reworked in our state annexation code section.  It really needs a complete rewrite, because we both agree that so much of the code is just hard to understand and make sense of, because of the way it was originally written, and because of the numerous amendments made to it over the years.  Recodifying is what really needs to be done.  But that’s a big political lift, given all the various players involved in this process.  Though I will say, it is likely less than what it was a number of years ago when the annexation code was last substantially rewritten because the big disputes between unincorporated communities and cities in Salt Lake County is pretty much settled now since the establishment of the metro townships (we could write a book on the whole townships saga over the years, how that came about, the back-and-forth, and the mess it left in the annexation code).

Here are some of the things that need to be addressed in the state annexation code:

  • “rural real property” owners have the ability to completely stymie proposed annexation if they (even one owner!) does not agree to be annexed. We have it on credible information that the definition of rural real property was an oversight when amended into the code a few years ago.  This needs to be changed.  The whole concept of rural/agriculture in the annexation process needs to be rethought, because annexation is as much a tool to manage growth as zoning, general plans, and other techniques are.  It should be treated as such.
  • The way islands/peninsulas are treated in the code should be reconsidered. While generally not a good idea, there are times when they may be necessary or may even make some sense.
  • Rewrite the code to uniformly apply to all counties statewide. The current condition in which “first class” counties have a separate set of (confusing!) rules from “specified” counties is a holdover from the townships wars in Salt Lake County that then spread to other counties.  Get rid of this (at the very least, rethink it!)
  • Reconsider the requirement for feasibility studies. Instead, couch any requirements for studies in the concept of growth management – what makes the most sense to deal with future development and how to provide the necessary urban services. For discussions about annexation as growth management tools, see Rethinking Municipal Annexation Powers by Laurie Reynolds in The Urban Lawyer journal,  and Annexation: Briefing Paper by the Puget Sound Regional Council.
  • Take a look at the ability of property owners to opt out of proposed annexations – this can sometimes stymie good growth management and service provision for the future.
  • Consider whether there should be limitations or rules put in place for exactions or other requirements for proposed annexations. As a legislative decision, the cards are all in the hands of the municipal officials as to what conditions they may put in place in order to consider approving annexation of property.  This may result in unfair or overly burdensome requirements for some properties which then transfer to future community residents.
  • Clarify the role of the Local Boundary Commission and what its authority is. It is rather unclear in the present code.

These are just some of the annexation issues that need addressing.

Looking for some thoughtful (and brave!) legislators, local officials, and property owners to step up and help make this necessary change happen.  It is an important and overlooked tool for the management of growth in our pretty, great state!


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