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Need Some Changes To Zoning? Let’s Make A Deal

December 4, 2023 by Nicole Masson

By Wilf Sommerkorn, Read more here.

Over the last couple of weeks, the regulation of land use by development agreement has reared its head several times, enough so that I feel like I need to clear my soul about some of this.  Specifically, the recent approval of the land use provisions by Wasatch County for the proposed LDS Temple in Heber City; and a friend and council member of a community nearby who called me with questions she had about a proposed development agreement for a project that would allow variations from what the underlying zoning code required, and some rezones I’ve seen recently where uses were restricted.

In all these cases, the development agreements would allow for provisions that were not what was normally allowed by the underlying land use regulations.  In some cases, the community would gain direct benefits (such as affordable residential units), but in other cases, there were no clearly specified community benefits – it was primarily a way to allow the development to proceed with something that the zoning normally would not have allowed (like yard setbacks, building heights, private streets, etc.).  In essence, the agreements were providing a level of flexibility that standard regulations did not.  This is not necessarily a bad thing – I’ve long said we just can’t foresee all the things that may need to be addressed in our land use codes, nor the variation that may be needed to allow for independent design and aesthetics.  But if that’s what is needed, then what is the purpose of standard zoning regulations?  Why do we even have them?  Would we be better off just negotiating every development proposal, and then writing up a development agreement to embody what was agreed upon?

wrote about the basic mechanics of how we must legally deal with such development agreements over three years ago, and what is clear from those court decisions (and now language in the LUDMA – see (2)(a)(iii)) is that we must follow the same process for these agreements that we must for rezones or code amendments.  So these development agreements become, in essence, rezonings of property to allow for a different set of standards and requirements (not all development agreements do this, and thus are considered administrative and need not follow the legislative process – this distinction confuses citizens, and even PC and Council members).  So what’s the problem?

Well, I sometimes wonder then why we use zoning at all.  We could just adopt a community general plan that calls for the kinds of development that should be located in certain areas of the community, and then wait for development proposals to show up, at which point the community would negotiate with the developer the details, then embody all that in a development agreement that is run through the legislative land use process.

The problem with such an approach, however, is that citizens rely on zoning to have a level of predictability about what can and can’t happen with new development in their neighborhood.  It would also be impractical to have to negotiate with every applicant for a building permit what the yard requirements and building heights and parking requirements would be, then draw up an agreement and run it through the legislative process.  So there does seem to be some value in having a set of standing, underlying land use regulations that apply to property that any owner could rely on to get a permit to build without having to go through negotiations and process (which would add to the time required to get a permit, a key issue in housing affordability!).

Maybe I’m just too worried about what I learned as a planning student and early in my career about zoning and how it should work.  Land use regulation by development agreement seems to be an awful lot like “contract zoning,” which, when I was in planning school a million years ago, we were taught was antithetical to democratic land use processes and even illegal.

I have since read a treatise given at the Rocky Mountain Land Use Institute in 2011 by Orlando Delogu, emeritus professor of law at the University of Maine, that changed my understanding, and seems to be more in line with how things are viewed today.  He calls it contract zoning, but it is essentially the process of crafting a development agreement – a legislative development agreement, as it was called by Wasatch County.  Delogu says this:

The concept of contract zoning pits some very traditional points of view in the law against one another.  On one hand there is the desire for certainty, predictability in the law—a rule of law, not of men, where standards, criteria, the so-called rules of the game are largely spelled out in advance (e.g., zoning (my note, not Delogu’s)).  On the other hand there is a desire and need for flexibility – the prudent use of discretion to fine-tune, to adjust to the dynamics of the marketplace, changed conditions, to balance reasonable public and private interests (e.g., development agreements (me again)).

It’s a close call, and individual feelings on the matter may reflect more one’s philosophical biases than anything…

Delogu does acknowledge what it would/should take to do land use by development agreement, much along the lines of what our courts have said:

…it should be recognized that contract zoning is actually the rezoning of a particular land are – a valid legislative undertaking (underline mine).  All law can, should be revisited from time to time – it should be open to improvement.  Contract rezoning is often the only legal and creative way to say YES to what may be a very desirable development opportunity that would otherwise by impermissible, and have to be turned down because it doesn’t fit into any of the presently permitted zoning categories that a community may have fashioned for itself at a given point in time.

Ultimately I guess I’d say that I agree with Prof. Delogu’s assessment that we need some of both – zoning and agreements, applied appropriately.

It is never a question of having one or the other, certainty or flexibility; we always need to have some of both.  It is a question of degree.  Contract zoning (e.g., development agreements (me once more)) is a tool that leans in the direction of flexibility and discretion.

Delogu then goes on to outline the potential pitfalls:

In the minds/hands of some, it affords too much of these characteristics.  Others use the tool prudently; they see it as an essential part of the mix of land use control mechanisms.

Contract zoning, like other land use controls, may not be needed or appropriate in many municipalities – fine, don’t use it.  However, in those communities where the pace of change is rapid, where development pressures are acute and increasing, where there is an inherent complexity that almost defies conventional planning strategies and techniques, contract zoning … can be very beneficial to all concerned.

So – land use regulation through zoning?  Or by development agreement?  Seems a mix of the two might work best.  The trick is achieving the appropriate balance.  Part of that balance in the state of Utah is that such agreements must be run through the legislative adoption process.  That, of course, can open up the political pandora’s box of referendum, but then, so can a standard rezone or zoning text amendment.  Helping commissioners, councilmembers and the public understand this, however, is a challenge!  And another problem is see as the use of “legislative” development agreements gains sway – keeping track of all those specific provisions.  There will need to be a good filing system to keep those agreements easily findable, and a tag on properties so those looking can easily be made aware that there may be provisions that apply to some properties that are different from the underlying zoning.  Good luck with that!

Added Dec. 4:  A great comment from John Janson, former West Valley City Planning Director and Davis County chum (John was a starting planner there when I was an intern!), now a planning consultant.

Since we had a session a few years ago on this topic, I still think the idea that is missing is that DAs through negotiation can result in significant benefit to the community and to the developer. New ideas, concept flexibility, are difficult to place in our ordinances especially with the general State Law intent of being more precise, less discretionary, that the Legislature has been pushing for quite a while. We no longer can instill flexibility with such ordinance terms as neighborhood compatibility or visually similar.  We got by with those terms for a very long time but obviously too much interpretation and personal opinions were involved.
Negotiating can result in a better development – more open space, affordable housing, more amenities, more interesting buildings, etc.  Many planners like to negotiate to try and create the flexibility for the developer and as many community benefits as possible.
Do all developments need a DA?  Of course not, but if our ordinances are way out of date and we aren’t improving them constantly, we may need them.  Or as a community, maybe we just like to be further assured thru a DA that we are getting everything that we expect. However, the proposed development ought to reflect the existing zoning.  I have seen a few where a use not allowed in the zone is allowed thru the DA.  As long as the legislative process is used, I suppose that is ok, but that doesn’t quite seem right to me.
Most developments should be able to use the existing zoning, but really large or innovative ones, maybe need help and enhancing, which is often accomplished with a DA.

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