SUBDIVIDE AND CONQUER!

February 5, 2023 by Nicole Masson
Policy/Legislative

SUBDIVIDE AND CONQUER!

February 4, 2023

By Wilf Sommerkorn

The expected housing bill by Sen. Lincoln Fillmore appeared at the end of this 3rd week of the legislative session. As promised, it proposes a newly mandated process for approving subdivisions, as well as some issues with the moderate income housing reports, and with ADUs.

The bill is SB174 – Local Land Use and Development Revisions  https://le.utah.gov/~2023/bills/static/SB0174.html   Let’s run through the bill’s provisions.

On moderate income housing, the bill would require that a city or county that does not submit the required MIH Plan on time, or submits a plan that is then deemed to not comply with the state requirements, be required to pay a fine into the Olene Walker Housing Trust Fund.  The amount of the fine depends on the length of time the jurisdiction remains out of compliance.

On Accessory Dwelling Units, the bill would modify definitions so that attached garages are considered part of the house footprint, and thus an IADU could be built in or above it.  It also clarifies that one additional parking space can be required, up until the local ordinance would require 4 total spaces due to number of units or size.

The subdivision process the bill would establish I want to spend a little more time and detail on.  The bill would create a new subsection titled “Process for subdivision review and approval”, which would create a uniform process that all cities and counties would have to follow in reviewing and approving subdivisions.  I’ve got some issues with what the bill does here.

First, it creates a new definition of “administrative land use authority.”  It does this, it appears, to distinguish it from the land use authority definition for the rest of the LUDMA, which can include the local legislative body.  This one for subdivisions does not allow the legislative body to be the land use authority (LUA).

The bill then stipulates that the subdivision review process shall consist of a preliminary plat and a final plat, and that’s it.  Many jurisdictions I’m familiar with have a concept plan requirement at the beginning of the process, to work out the more discretionary layout, design and amenity questions.  These are issues the public often has some opinions about and may help the LUA with resolving. Then comes the preliminary plat, where compliance with the technical requirements of the local ordinance are reviewed.  Public input here is of limited value because of it’s technical nature, and is usually carried out by qualified staff.

What the bill appears to do is roll the more discretionary concept plan into the more technical preliminary plat stage, conflating these two quite different processes, and thereby introducing some uncertainty about the overall general administrative LU process.

The bill goes on to stipulate that preliminary plats must be reviewed in a public meeting.  This requirement is not explicitly imposed in any other administrative land use process, but if the LUA is a board or commission (often the PC), all their meetings are required to be open to the public.   The bill also says that the LUA may hold a public hearing. Nowhere else in LUDMA is there an allowance for a public hearing for an administrative action.  Indeed, there is a lot of literature out there in the planning and legal worlds that argues that public hearings for administrative actions are inappropriate – instead they should be evidentiary hearings. I think this provision is included to deal with the more discretionary concept plan issues.  Putting this language into our LUDMA, I believe, will just muddy the waters about how to handle administrative actions.

It is true that many of our local jurisdictions have public hearing requirements in their local ordinances, but I think this is the product of a long-term misunderstanding of what the administrative process is and how it should work.  A number of cities have amended their codes recently to eliminate the requirement for such public hearings.

The bill then goes on to require either direct notification of property owners within 300 feet of of the site of a proposed subdivision, or posting of notices on the property itself.  This could be an appropriate approach for an administrative action as the owners directly adjacent may be affected by the proposed action and should have the opportunity to present their claims – in an evidentiary hearing!  But again, these steps I’ve just called out from the bill demonstrate to me a confusing conflating of a discretionary and a technical process, each of which should have different ways of gathering information and input.

The bill continues on with the process, and then stipulates that the final plat must be approved by someone other than the governing body or the planning commission.  I understand why the council is called out here as they are prohibited from the beginning from being the LUA for subdivisions. But the planning commission?  First, the planning commission has no role in the subdivision process unless they are designated as the LUA for it.  It is an LUA that gives these approvals, so does this mean the PC can still go ahead and approve a final plat because they’re now really the LUA?  This is confusing, and I’m not sure what the intent is for the exclusion of the PC.

I’ve gone on way too long about this, and I’m sure we’re going to hear about other issues with this proposed bill as it moves ahead. Send me your comments and we’ll do our best to pass them along!