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TWO BIG BILLS OUT

February 24, 2022 by admin
Policy/Legislative

Nothing major overnight, just some updating to report.

First, the land use task force bill, HB474 – Municipal and County Land Use and Development Revisions, which came out yesterday and we posted about, has been subsumed into HB303 – Downzoning Notice Amendments and renamed.  It is now HB303 – Local Land Use Amendments.  This was done probably for a couple of reasons (I’m guessing now, don’t know this for sure): first, the sponsor of HB474, Rep. Steve Waldrip, is carrying all three of the major land use bills this session, as well as some other bills that are pretty big, and he’s getting pretty loaded up.  So this would hand off one of those bills to another legislator (Rep. Val Peterson) and lighten his load.  Second, as noted in the last couple of posts, time is getting really short in this legislative session and getting these major bills through in the few days remaining is going to be tough.  HB303 had already passed the House, been heard and favored in Senate committee and is on the Senate floor awaiting a vote.  Substituting the bill means it just needs to complete this last step (pass on the floor of the Senate) and then be concurred to by the House, which it likely will.  The downside is that the provisions in HB474 are not going to get a hearing in committee.  Hmmm.  But anyway, the provisions of HB474 are pretty much intact in the new (substitute) HB303, with a couple of things to note: first, the provisions of HB303 (dealing with notices for changes to text of land use ordinances, which the League got the sponsor to agree to change to much more acceptable language) are still included.  And second, a provision regarding inclusionary zoning (IZ) has been added.  In yesterday’s post, I noted that the housing bill (HB462) added to the moderate income housing element’s list of affordability-promoting options an explicit provision for a local government being able to require inclusionary housing.  The new provision that has been added in HB303 is in the land use regulations section, adding a new Section 535 – Moderate Income Housing, which would allow a municipality to require a certain number of moderate income housing units in a new development if agreed to by the applicant, or if incentives are provided.  If the applicant does not agree, the municipality cannot use that as a basis to deny the application.  The section also allows resort communities to retain IZ requirements they may have adopted by January 1, 2022.  So.  IZ would now authorized by our state code, sort of, if this bill passes.

Another sort of odd bill popped up yesterdays as well, HB476 – Local Agricultural Regulations.  It would prohibit a local jurisdiction from adopting any ordinance or regulation that effectively prohibits the operation of an animal enterprise or working animal.  Animal enterprise is defined in the bill as “an animal competition, aquarium, circus, exposition, fair, farm, feedlot, furrier, retail pet store, ranch, rodeo, zoo, or an event intended to exhibit or advance agricultural arts and sciences.”  Wow, that’s pretty restrictive on all kinds of things normally handled in zoning codes!  But then the bill goes on to say that this “does not apply to an ordinance or other regulation adopted or enforced by a political subdivision if the ordinance or other regulation is… a land use regulation.”  So…. What’s the point of this?  🤷‍♂️

Last thing, the station areas planning bill is still not out, and as we noted earlier, it is getting really late in the session for a new bill to pop out now and have much chance of getting all the way through the process.  So I wouldn’t be surprised to see the station area planning provisions rolled into maybe the housing bill (HB462) and get a jump on the process that way.  We will keep our eyes open.
https://utahlanduse.org/blog/

TWO BIG BILLS OUT

February 24, 2022

All right, two of the three big land use bills appeared yesterday (the transit station area plans bill is still MIA).  I’ve had some time to peruse them and give you some of my analysis and comments on them here.  Please, feel free to email me with any comments you have as you look them over and we’ll get them out as well.  This is usually a beneficial thing as nobody can be expected to anticipate or see every possible ramification or issue with these bills, especially as large and complex as these are.  The only problem is, these bills have come out so late in the session there may not be enough  time to resolve issues, particularly if they’re complicated or controversial.

The housing bill, or what’ been called the SB34+ bill, is HB462 – Utah Housing Affordability Amendments incorporates much of what has been talked about for months by the Commission on Housing Affordability and others.  From a land use planning process standpoint, the biggest thing this bill does is make substantial modifications to the General Plan section of LUDMA for the required Moderate Income Housing element.  Instead of me describing those changes here, let me refer you instead to the white paper prepared by League staffer Karson Eilers.  Karson has done great work on summarizing all the provisions of this bill, which in addition to the MIH element changes also makes a number of changes to the Accessory Dwelling Unit provisions passed last year, to housing programs and funding, and some other things.  Just one point I’ll add to what Karson wrote as I have been asked about this by a couple of people, the language in the bill specifically allows inclusionary zoning.  Here’s the direct excerpt as one of the options that a local entity can consider implementing:

“or the adoption of a land use ordinance that requires 10% or more of new residential development in a residential zone be dedicated to moderate income housing”

As I noted earlier, this bill (and the others) are coming out very late in the session and will need to move fast if they are to make it through.  As such, this bill is already scheduled for a committee hearing tomorrow morning at 8:00 am.  If you have comments, get them in fast!

Now let me riff a little on what’s happening with the general plan provisions of LUDMA with this and other bills that are up in the legislative session.  In the state of Utah, a local government that wishes to regulate land use must do several things, one of which is it must prepare and adopt a general plan.  That’s part of the planning process, it makes total sense.  But interestingly, in Utah, under the law, general plans are not compulsory, in that their provisions are not required to be implemented.  Section 405 of LUDMA states:

“the general plan is an advisory guide for land use decisions…”

The things that have been amended into the general plan section of LUDMA for Moderate Income Housing the last couple of years, however, have a number of “mandatory” provisions.  The new language which is proposed as part of this bill also appears to tie implementing the provisions in the MIH element to eligibility for state funds.  That’s getting pretty compelling!  Another part of the bill states that the transportation element for general plans are to be “coordinated with” and not just “consider” regional and statewide transportation plans.

There is also another bill in this session, SB110 – Water as Part of General Plan, which I wrote about in an earlier post and noted that it makes very extensive and specific requirements of what is to be considered and accounted for in a new required Water element for general plans.  The entire tone of this to me suggests that the proponents intended for this to be mandatory for local governments to implement, though it does not specifically say that (maybe they did not know that general plans are “advisory only,” just speculating).

As a planner, I support the idea that general plans should have more influence on how land use is implemented in our communities, maybe even to the point that they should be mandatory (as they are in a number of other states).  But there’s been plenty of pushback on efforts to make this the case in the past from local elected officials and legal counsel.  Given the bills we’ve got before us right now, though, one could argue that we’re moving toward making plans mandatory bit by bit.  Doing it this way, however, makes things confusing for planners, local officials and the public.  Is a plan mandatory?  Language in the code says clearly it is advisory, except there are parts…  We should take this up as an issue to be resolved soon.  Either plans are mandatory, or they’re not.  Let’s not just do so for parts of it and add to the ambiguity of how the land use process works.

Okay, on to the next bill, the land use task force bill, HB474 – Municipal and County Land Use and Development Revisions.  There are a number of disparate provisions in this bill.  Let me summarize:

  • It would limit who could challenge a proposed annexation in the courts to those who have standing as defined in the code, and who can petition to withdraw from a proposed annexation. (editorial comment – I can see this provision for legal challenges to the process, but an annexation is still a legislative decision in the end, which means those opposed could do a referendum on it – probably a more difficult venture, but still possible).
  • When a local entity intends to change the standards for public improvements for subdivisions and development, notice must first be provided and a public hearing held.
  • Repeals the provision that was adopted in a legislative bill last year that says no changes in land use regulations can be required of properties for 10 years after the final approval of a plat or development
  • The standard for determining the legality of a nonconforming use or structure is to be “substantial evidence”
  • The combining of lots in a subdivision require a subdivision amendment to be filed, if required by local ordinance
  • Local entities must approve a condominium plat unless it violates local land use regulations
  • Adds to the provisions of what is considered to be an illegal land use decision the term “it exceeds the authority granted” in LUDMA
  • Adds detailed requirements for the making of boundary line agreements between property owners where the lines between the properties are ambiguous or unclear.

Okay, just a couple of other quick items of interest.

Here’s a story about the Utah Lake bills, and here’s one about why Salt Lake City is okay with the Inland Port bill as proposed.

 

IT’S COMING…  REALLY!

February 23, 2022

No new bills out yesterday.  The major bills are frantically being worked on according to the report given in the League’s LPC meeting yesterday.  There’s even some discussion about combining the housing bill and the transit station area plans bill, which would make for one behemoth of a piece of legislation!

Cameron Diehl and his staff are doing a heck of a job on this major land use bills.  Cam will really be a planner in all but name by the time he’s through with this.  Wasatch Front RC staff are really helping on this too.  So here’s some information that will be helpful if you’re interested in what’s going on behind the scenes on these major bills right now.

First, here’s a white paper (draft! Because the bill is not yet finalized) by Karson Eilers of the League staff.  Karson too is becoming a psedo-planner after dealing with all this.  He’s done great work here summarizing what will be contained in this housing bill, often referred to as SB34+, because it adds on to the moderate income housing bill from a couple of legislative sessions ago.

On station area plans, here’s the summary from yesterday’s meeting that lays out some of the main provisions of that bill.  There is ongoing discussion on this with the communities that have rail transit stations, including a big conference call today as this bill continues to evolve.

1) All cities w/FR, TRAX, or BRT (or bus hub
outside of UTA) must do a SAP
1) May use existing transit-oriented plans (e.g. Cairns in Sandy)
2) ½ mile radius for FR & TRAX (66 stations)
2) Cities must update general plan & zoning to
implement SAP in aggressive but doable
time frame
1) Exact time frame still being finalized
3) State objectives for SAP
1) Housing affordability and availability
2) Sustainable environmental conditions
3) Access to opportunities
4) Transportation choices/connectivity
4) SAP implementation
1) Stakeholder engagement
2) Current and future land use opportunities
3) Current conditions/impediments to
development
5) Incorporate SAP into SB 34+ review and req’ts
1) City plans and adopts
2) MPO review to confirm state objectives are met
3) Mandatory menu item under SB 34+ with DWS
confirmation
6) Incentives for cities that adopt SAPs
7) Increase referendum standards for SAPs and
related legislative acts (i.e. zoning)
8) State and MPO technical assistance to do SAPs

The key thing to keep in mind here is that all bills are required to be through the legislative chamber they originated in by the beginning of next week.  That means all House bills have to have had a committee hearing and then been passed by the House and sent over to the Senate by the beginning of next week, according to legislative rules.  Same thing in reverse for the Senate.  For bill that aren’t even out yet (as the major planning bills are not), that means a very compressed timeframe to get everything done.  If there are issues identified when the bills come out (and there usually are, especially with bill as big and complex as these are going to be), that doesn’t leave much time to resolve them.  So.  It’s going to be a hectic week and a half coming up.

 

TWO WEEKS, THAT’S ALL!

February 22, 2022

A few new bills of interest out over the holiday weekend.  They are:

HB438 – Point of the Mountain State Land Authority Amendments – this bill makes a number of operational changes and additions to this authority, including the ability to impose an energy tax and raise other revenue, bond, what funds can be used for and how, and the ability to use the Public Infrastructure District provisions (PIDs).

HB443 – Utah Inland Port Authority Amendments – a number of changes, including those anticipated reducing the number of local officials serving on the governing board.  The bill also requires the primary municipality in which the district is located (Salt Lake City in this case) to sign an agreement agreeing to “facilitate the efficient processing of land use applications, as defined in Section 10-9a-103, relating to land within a project area, including providing for at least one full-time employee as a single point of contact for the processing of those land use applications.”  Interesting.

HB445 – Homeowners Association Amendments – would require the Property Rights Ombudsman Office to hire attorneys with backgrounds in, offer opinions on, and be experts on all things HOAs!  Oh, man, oh, man, ..  HOAs are not required or administered by local governments, they are essentially private agreements.  For the PRO to have to get involved in that – can they even legally do that?  Hmm, I need to ask Jordan…

SB232 – MIDA Revisions – makes a number of essentially technical and operational changes to MIDA.  It authorizes the use of PIDs in MIDA district areas.  Here’s an interesting provision:  would make it so that Section 57-11, the Utah Uniform Land Sales Practices Act does not apply to land in MIDA districts if MIDA has done the following:

has a development review committee using at least one professional planner;
(B) enacts standards and guidelines that require approval of planning, land use, and plats, including the approval of plans for streets, culinary water, sanitary sewer, and flood control; and
(C) will have the improvements described in Subsection (11)(b)(i)(B) plus telecommunications and electricity; and
(ii) if at the time of the offer or disposition, the subdivider furnishes satisfactory assurance of completion of the improvements described in Subsection (11)(b)(i)(C).

In addition, a substitute for HB303 has come out, as promised by the League, that substantially changes the character of that (badly written) bill.  Now it would simply stipulate that for public notices required for changes to the text of land use ordinances, the notice “include a summary of the effect of the proposed modifications to the text of the zoning code designed to be understood by a lay person; and be provided to any person upon written request.”

Okay, that’s it for now.  STILL waiting for the big land use bills, and there are only two weeks left…

 

OKAY, WHO’S IN CHARGE HERE? BY WHAT AUTHORITY?

February 22, 2022 (Twosday! 2-22-22)

I want to talk today about state-created Authorities, which seems to be the approach we undertake in Utah for multi-jurisdictional (regional) economic and land use issues.  Examples of what I’m referring to are MIDA (Military Installation Development Authority), Point of the Mountain Land Authority, Inland Port Authority, and the proposed Utah Lake Authority.  There may be something coming for the Great Salt Lake as well, and for, well, we’ll see.

The first such entity stood up was MIDA in 2007 (full disclosure – I was Director of Davis County Community & Economic Development at the time and closely involved in the process).  The justification for the creation of MIDA was the preservation and enhancement of an important economic and jobs base for the state generally and northern Utah in particular – Hill Air Force Base.  The story behind all this is a long and complex one which would take a lot of space to tell, so let me summarize it more briefly.  Because of federal defense funding cutbacks, a number of military bases around the country were being looked at for closure.  Hill Air Force Base, which employed some 14,000 people in northern Utah directly and many more through spin-off economic effects, was in danger because it’s buildings were old and increasingly dysfunctional, and Congress was in no mood to fund new infrastructure.  An approach was instituted in another state however, which allowed for federal land on a military base to be leased to private entities for development of associated new buildings and facilities that were then leased to the defense department for military use.  HAFB had lots of vacant land adjacent to existing communities in Davis and Weber counties that could serve such a purpose, where the adjacent cities could provide the necessary municipal services for new development like water, sewer, building permitting and inspection, police and fire and so on.  But the area was spread among at least four different cities, and finding the funding and sophistication for negotiating three-way contracts, leases and financing was a daunting specter.

So, with the support of local and state officials, the state legislature declared that there was a compelling state-wide public interest in preserving and enhancing this significant economic base and created MIDA.  This Authority included the ability to contract, raise tax revenue, and have land use authority.  The actual needed municipal services would be provided by the adjacent cities through agreements with MIDA, for which they would receive funds from MIDA.  The model established was a governing board that included state officials and local representatives from the involved local governments.

The venture has worked out quite well, with leases and agreements worked out between the federal government (owners of the land), local governments for services, and private developers to build the needed facilities.  Falcon Hillhttps://www.woodburycorp.com/portfolio/falconhill/ with Woodbury as the main developer is been taking shape for several years now.

Since I focus on planning and land use issues, I want to focus on that aspect of this approach in dealing with such regional issues.  Because of the situation in this instance, where the land was federally owned and thus not subject to local land use regulation at all, and the area in consideration was adjacent to four different cities, in two different counties, it made some sense for this state-created entity to have land use authority.  Including officials from the involved local entities on the MIDA governing board also assured that there would be local input on what was ultimately developed and how.  It was not a perfect model from the outset – the MIDA provisions were tweaked just about every year by the state legislature.  And there may have been other ways to deal with this.  Certainly there were rough spots, with federal, state and local officials having to work out concerns and differences.  But overall, it has accomplished what was intended at the outset.

The model was then applied to other similar situations.  When the National Security Agency was looking around nationally for a site for its new super computing center, it settled on building it in Bluffdale, again on federal land (Camp Williams) with locally provided infrastructure and services, again all coordinated through MIDA https://archive.sltrib.com/article.php?id=51391693&itype=CMSID.  The state legislature authorized this new use of MIDA as a state-wide interest in bringing the economic benefit of such a nationally significant facility to the state.

When the decision was made to close the existing state prison and build a new one at a new location, the question arose of what to do with the approximately 700-acre old prison site.  Again, it was viewed by the legislature that this could be a project of significant statewide interest (all of downtown Salt Lake City, for example, is encompassed within an area of around 700 acres, depending on where you draw the boundaries).  The legislature, after study and recommendations by a state commission,  thus created the Point of the Mountain Land Authority.  While the prison property is located within Draper City, it is entirely state-owned and thus not subject to local land use authority.  The Point authority retained this land use control, and local officials were again included on the authority governing board. https://thepointutah.org/

The characteristic of using such authorities for development of government-owned land began to change, though, when MIDA was brought in to assist in the relocation of the Hillhaus, a defense department-owned military recreation lodging facility at Snowbasin ski resort which was subsumed into the Olympic facilities for the 2002 winter games.  The promise was that the lodge would be relocated elsewhere, and eventually federal and state officials agreed that MIDA would be the best way to accomplish this.  A site was located near Park City on federal property, but again through a long and complicated process, things evolved to the point where there is now a major new ski resort underway by a private developer under the auspices of MIDA which helped make the financing more feasible, and again subsumed local land use control.  Only this time, the land use control involved not just government-owned property, but substantial privately owned property as well.  Long story made short, this caused some issues with the local entity that normally would have that authority (Wasatch County), and it was a complicated and controversial workout (a local official has been allowed to sit on the MIDA governing body of this project, though). https://www.standard.net/hilltop-news/2021/jun/17/mwr-hotel-construction-project-officially-underway/

Arguably the most controversial use of this Authority approach has been the Inland Port Authority, located west of the Salt Lake International Airport, in Salt Lake City.  The statewide interest identified by the legislature is the establishment of a significant economic benefit with a rail freight transfer facility and associated development that would occur.  Part of the state justification for involvement in this proposal is to take advantage of the significant infrastructure that state has paid to have put in this area for the new state prison, located just to the west of the inland port area.  Almost all of the property involved in this one, however, is privately owned, and thus would normally fall under SLC’s land use authority.  There has been plenty of controversy over this project, including over the land use authority, taxing and revenue authority, and so on. The controversy here is also enhanced, in my opinion, because this project is located in SLC, which has a level of politics and issues that don’t generally exist elsewhere in the state.  This one is still playing out, and there are bills in the legislature this session to make more changes to the Inland Port Authority, including to the composition of its board membership (reducing local government involvement). https://www.sltrib.com/news/politics/2022/02/22/slc-would-lose-seats/

The Authority trend is continuing with the proposed Utah Lake Authority, a bill which is pending in this year’s legislative session (see previous posts).  The statewide purpose for this one is the environmental rehabilitation of Utah Lake, considered a statewide resource.  Again, controversy surrounds the discussions about what to do and how to do it, most notably about a proposal by a private entity to dredge the entire lake bed making it deeper, using the dredged material to create new island in the lake, and building new communities on some of the islands.  The lake bed itself is sovereign state land, so here we have the issue of the state retaining land use control over state lands, which the Authority would have, and thus be responsible for whether and how any such islands, if they are created, would be developed.  The Utah Lake Authority bill was originally proposed in last year’s legislative session, and that one would have given the Authority jurisdiction over some of the lands adjacent to the lakeshore, which caused a lot of concerns and ultimately put the bill on hold until this year’s session.  The bill currently gives the Authority jurisdiction over only the lakebed sovereign lands.  We’ll see how this all works out, and it’s an important one to watch for this reason. https://www.deseret.com/utah/2022/2/12/22925651/utah-lake-islands-project-pushback-lawmakers-utah-county-towns-lake-restoration-vineyard

How else might this Authority concept be used in the future?  Perhaps for preservation of the Great Salt Lake, which might extend throughout the entire GSL watershed?  How about for housing affordability?  An idea has actually been floated that the state legislature would find a compelling statewide beneficial public interest in enhancing housing affordability, and instead of doing the zoning reform thing that many other states are now doing, instead create a housing affordability authority, that could then find private entities willing to build more “affordable” housing if the conditions (i.e., the local land use regulations) were more conducive, and then legislatively create an area where the authority would have jurisdiction, overriding local controls.  There’s both merit and danger in such an approach, one that would surely engender a lot of controversy and debate.

Well. I’ve beat this horse to death, and all for something that may not ever really be a concern.  Or…?

 

 

COME ON IN, THE WATER’S FINE…

February 18, 2022

A couple of more minor bills of interest out yesterday.

HB429 – Great Salt Lake Amendments would require the Division of Water Resources to develop the Great Salt Lake Watershed Integrated Water Assessment, with the end goal being to enhance water flow to the GSL.  The guidance in the bill is for the Division to develop and implement an integrated surface and ground water assessment for the Great Salt Lake watershed. This includes assessing and forecasting the quantity of water available for human, agricultural, economic development, and environmental or instream uses, and ecological needs.  More specifically, the Assessment is to identify and evaluate best management practices that may be used to provide a reliable water supply that accommodates anticipated growth and economic development, and provides adequate flow to sustain the Great Salt Lake and the Great Salt Lake’s wetlands.  Wow, sounds like a really big planning project!

HB435 – Mining Regulation Amendments would change, for “small mining operations” as defined in state code, the exemption for such operations from having to provide a notice of intention to commence operations, which includes a detailed reclamation plan, and require the state division to publish its review of the notice before allowing operations to commence.  The change would say that small mining operations in first and second class counties are not exempt from these notice of intention requirements.  This appears to have been prompted by the recent surprise revelation of a new mining operation about to get underway in Parley’s Canyon just outside Salt Lake City, which caused a lot of outcry.

SB225 – Farmlands Assessment Act Amendments would exempt areas that are being taken out of “greenbelt” from the rollback taxes normally required, if the area will not be developed.  This bill even allows for carving out portions of the land that will be open space or undeveloped as part of a larger piece that is going to be developed.

Okay, I also wanted to write just a little about a bigger overall issue that is sort of “looming” over this legislative session, and that has to do with water.  Our recent drought conditions coupled with the state’s strong growth rate seem to have brought this issue of water more to the top of everyone’s agenda.  I’ve heard more about it in the last few months than throughout much of my career.  As Craig Call and I have been conducting land use training seminars the last several weeks, in just about every one of those sessions, the question of water to accommodate growth has come up.  Many of those questions have been if a community can curtail or even stop growth if it looks like there isn’t enough water available. I know of several communities that are considering curtailing the approval of new development because of their concerns about local water supply, and a few have even already done so.

Water concerns are reflected in this legislative session with a flurry of bills proposed to deal with everything from water-wise landscaping, metering for secondary water, dealing with water rights, state water plans, and even how to get more water to the Great Salt Lake (see above).

One of the bills on this topic of particular interest to planners is SB110 – Water As Part of General Plan.  This bill passed in the Senate with no negative votes, and is being heard in a House committee this morning.  Everyone appears to support this bill.  And, in my opinion, it deserves support.  The bill would add to the list of elements that are required as part of a community General Plan “a water use and preservation element.”  This is added to the other elements that are required, which are land use, transportation and traffic circulation, and moderate income housing.

No beefs with requiring this element in community General Plans, particularly with this becoming such a big topic in growth at the local level, as I noted earlier.  But planners and elected officials need to be aware of the burden, or maybe that’s not the right word, the responsibility it places on communities to comply with this requirement.

The older required elements in the General Plan section of LUDMA, land use and transportation, were quite general in their description of what was to be considered, leaving a fair amount of discretion and flexibility to local officials on how to address them and what to consider.  When the moderate income housing requirement was added a few years ago, it was more detailed and required certain information to be compiled and things to be considered.  That has caused some issues recently as the information to be used apparently has been found to not be as accurate or detailed as needed to accomplish the requirements of the code.  There have been other issues as well.

The proposed required water element is way more specific in what is to be considered and included than anything else in the code currently.  It is so detailed and so specific, and so voluminous, if I can say that, that I think some smaller jurisdictions particularly will have a hard time accomplishing all that is required, at least not without an expenditure of some significant funding to get that work done.  I’m not saying that this information and planning isn’t of value, and perhaps even needed, but the level of specificity and detail that’s needed for such a plan may vary by locality depending on their situation with water.  It’s an interesting approach to local land use planning as envisioned in our state code that is just different from how it has been.

Here’re just a couple of examples.  The bill language requires coordination of the water element with the land use element, to the level of detail of different categories of proposed land use.  The water element is to be:

coordinated to integrate the land use element with the water use and preservation element; and account for the effect of land use categories and land uses on water demand.

The bill goes on to say that the element is to address:

          (A) the effect of permitted development or patterns of development on water demand and water infrastructure;
(B) methods of reducing water demand and per capita consumption for future development;
(C) methods of reducing water demand and per capita consumption for existing
development; and
(D) opportunities for the municipality to modify the municipality’s operations to eliminate practices or conditions that waste water.

The bill then provides a rather long list of information, concepts and policies that are to be considered in preparing the water element.  This really could be considered the planners’ full employment act, there’s a lot to consider here.  Well.  I’ve made my point.  I’m not arguing against it, just sending up a flag of notice – look out for what’s coming.  We will definitely need to be educating local officials about this requirement, particularly since it is required to be done by December 31, 2025.

Oh, and about the “required” thing?  General plans in the state of Utah are not compulsory for local governments to follow – they are advisory.  That’s not necessarily a negative, but…  all that work, and in the end, what does it mean?  At the least, it will mean local officials should be more educated about what the problems are and how to deal with them.  But… not required, which I get the impression is what state officials were hoping for here.  We shall see.

 

SAY WHAT?

February 17, 2022

A couple of bills out yesterday that are more, shall we say, interesting and impactful.

The interesting one first.  House Speaker Brad Wilson is the sponsor (it is unusual for the Speaker or Senate President to actually be the sponsor of a bill – when they are, it usually signals an issue of particular importance) of HB410 – Great Salt Lake Watershed Enhancement.  Concern over the rapidly diminishing nature of the Great Salt Lake has become a top of the list issue for state leaders in the past year or so, as noted earlier.  Legislators even took an aerial tour https://www.deseret.com/utah/2022/2/15/22935079/utah-lawmakers-get-aerial-tour-of-great-salt-lake-drought-science-saline-lake-politics-environment in the last few days to see what is happening to the lake.  Speaker Wilson sponsored a conference not long ago about the GSL  https://www.youtube.com/watch?v=fEFKZVw1kvw, so it is no surprise to see this bill.  The bill sets up a GSL watershed enhancement program, primarily to acquire water rights specifically for the lake itself.  This is noted as being a first step, with others sure to follow.

The next bill definitely falls into the category of being “impactful”, so much so it’s hard to take seriously.  Rep. Val Peterson, he who is also the sponsor of HB303 – Downzoning Notice Amendments, which we panned in an earlier post (February 3), yesterday unveiled HB416 – Property Rights Ombudsman Amendments.  All I can say is, Wow!  This bill would require the Ombudsman’s Office, every year, to conduct a review of every local government’s land use ordinances, policies, and written actions on land use issues for compliance with state requirements, and to issue a report on such by October 1 every year.  The written actions to be reviewed include emails, citations and written minutes.  Can you say, land use police?  What would such an undertaking require?  I can’t wait to see the fiscal note on this one!  The bill would also allow any person to request an advisory opinion, not just from the PRO, but from “a neutral third party” to determine if a local government’s ordinance, policy or action is inconsistent with state law.  It also provides that if a local government doesn’t cure the offending ordinance, policy or action within 30 days of the issuance of the advisory opinion, a court can award attorneys fees to the requester.  So that would mean a local government would have to do what the advisory opinion says even if they disagreed with it, or risk having to pay attorneys fees.  I talked with the current PRO, he had no idea this bill was coming.

In my posts from the last couple of days, I paid especial kudos to a state legislator who is very much persuaded that cooperation with local officials is more likely to produce workable and feasible solutions, Rep. Waldrip.  I’m sorry to say, Rep. V. Peterson, with this bill and HB303, appears to be the polar opposite. ☹

By the way, HB303 was voted favorably(!) out of committee yesterday, but League staff assure us that amendments to this bill that will make it “better”(?) are coming.  We shall see.

 

IT’S NOT WHAT YOU DO, IT’S HOW YOU DO IT!

February 16, 2022

Well, what you do matters too.  More on that in a minute.

Only one new minor bill out yesterday, HB407 – Short-Term Rental Enforcement Amendments.  This is another marker in the increasing “clamor” from local officials to do something about regulation of short-term rentals.  This one is not targeted specifically at ADUs as some of the other proposals have been, but does put language into the code specifically allowing local governments to regulate short-term rentals.  The current code does not prohibit local regulation of STRs, so this bill doesn’t really seem to change anything.  A couple of years ago there was a pretty concerted effort by the STR industry to get the legislature to prohibit local regulation of STRs, which as you can imagine the local governments fought pretty strongly.  The compromise bill that was eventually passed just prohibits locals from using on-line advertising of STRs as the sole basis for enforcing against unauthorized STRs.  This bill doesn’t really change that provision either, so I’m not sure what this bill really accomplishes.  Ah, well.

Yesterday I posted about Rep. Steve Waldrip and his comments that his goal is not to have the state pre-empt local land use authority like is happening in many other states in the zoning reform wave that is sweeping around the country, but to instead find ways for the state and locals to cooperate to achieve needed changes in the land use regulation process for broader public benefit.  I’ve posted on this approach previously (see January 25), supporting such an approach (which is advocated by Rep. Waldrip and League Exec Director Cam Diehl) as the best way to actually make it work.  Too often, as the January 25 post demonstrates, top-down zoning reform approaches don’t work because of the lack of buy-in from local officials and citizens who then find ways to subvert them.

Today, James Brasuell, editor of the Planetizen website, shows us the “ultimate” expression of such lack of support and cooperation of top-down zoning reform – the citizen referendum.  There are apparently a number of efforts now underway in California and other places by citizen groups and even local elected officials to put referenda on the ballot to overturn state legislative-adopted zoning reform measures.  A couple of excerpts from Brasuell’s posting:

Enter the “Our Neighborhood Voices” ballot initiative. Instead of relying on regulatory gymnastics to circumnavigate the state’s new zoning mandates, the ballot initiative would allow local governments to simply opt out. So far, the ballot initiative is finding support from local governments and regional planning organizations alike. The city council of Chino Hills, a city located on the western edge of San Bernardino County, along the border with Los Angeles County, recently voted unanimously to support the initiative. The Southern California Association of Governments (SCAG) in January rejected a motion to stay neutral on the initiative, and instead voted, 32 to 12, to back the initiative.

While California and Oregon were the first state to risk “fed up” citizens by passing statewide zoning reforms , and are thus providing the model for how to respond to inevitable local resistance, other states legislatures, like in New YorkArizona, and Washington will this year consider legislation that would similarly preempt local zoning laws and potentially set the stage for more ballot initiative showdowns.

The collateral damage in so many political battles could be yet another step back for the legal power of the planning profession. Until the fundamentals of the market change—whether through action or inaction—power struggles and political controversies will continue. If ballot initiatives like Our Neighborhood Voices succeed, citizens, not planners, will increasingly set the policy parameters that shape the build environment of the future.

Take a look at James Brasuell’s piece, it is a most interesting lesson in how to approach policy.

 

THE WAVE BREAKS?

February 15, 2022

I’ve posted several times previously about the “wave” of zoning reform sweeping the country, warning that Utah may well be engulfed by that very wave, maybe in stages but surely altogether.  The wave continues to roll, as legislative action moves forward in New York, and now even right next door in Arizona.  The effectiveness of such measures may be rather less than hoped for, though, as we’ve also noted in studies and stories cited in previous posts, like yesterday’s post citing a UCLA paper that warns if reform isn’t substantial in scale, it likely won’t be effective (go big or go home, in other words). This truism may be reflected in a story about Salt Lake City’s slow uptake of ADUs.

However, we have our own little Dutch boy putting his finger in the hole in the dike to stem the wave here in Utah in Rep. Steve Waldrip (if you’ve met Rep. Waldrip, you know my characterization of him as “little” is sardonic – he’s a tall man!).  Rep. Waldrip, as I’ve accused him of before, is well on his way to becoming an honorary planner.  He is truly a policy wonk and has taught himself a lot about planning issues and policy approaches.  This is not really surprising, as he has been a Planning Commissioner (Weber County) and is currently co-chair of the Commission on Housing Affordability.  He talks cogently about things like regional fair share of affordable housing and the principles of smart growth (tying state infrastructure funding to conformance with growth policies).  He is carrying all of the major planning bills we’re awaiting (well, not sure about the station area plans bill), making himself the go-to guy at the legislature for land use stuff.

At yesterday’s League Legislative Policy Committee meeting, Rep. Waldrip talked generally about the bills he’s working on in cooperation with the League and others.  His main message was that he is not interested in having the state dictate zoning policy to local governments, rather he wants it to be a cooperative venture where state and local officials can work together to craft approaches that will address the main concerns (like housing affordability) and do it in such a way that there will be a better chance of implementation and success.  So kudos to him for his interest and his substantial efforts, and maybe breaking the wave before it gets to Utah.  Cam Diehl, the League’s executive director, noted in the meeting yesterday that he’s spent more time talking legislation with Rep. Waldrip this session than with any other legislators.  So it looks like Cam is becoming a planner wonk as well (I can vouch for this, having talked with Cam on planning issues several times over the past couple of years and I can say he really is getting into this stuff).

Funny what strong growth can do among our political caste!  Here’s hoping we get to see the bills soon!

 

MONDAY, MONDAY

February 14, 2022

Monday of week 5 of the Utah legislative session, and Happy Valentine’s Day!  Only one bill of relative interest out just before the weekend, not one of the biggies we are waiting for (how many times can I say that?).  This one is HB379 – Association of Governments Amendments, which basically creates a vehicle to funnel the anticipated money for planning assistance and other things through the AOGs around the state.  That’s it.

A couple of other interesting politics-related planning items that showed up in the news over the weekend.  First, more on Utah Lake which is becoming more and more of a big deal.  This may eventually frame how we approach regional issues in the future, so this one is worth continuing to watch.  Next, we have some more about transportation for Little Cottonwood Canyon in the form of a legislative resolution sponsored by Sen. Jake Anderegg.  Can I just say, for someone who started out in the legislature as pretty much a super-conservative anti-planning guy, as he’s gotten more and more involved in growth and planning issues, he has EVOLVED?  Pretty much supports good planning now (amazing what a little exposure to the issues and trying to deal with them can do to someone…).

So while we’re waiting for those big planning bills, here’s something interesting.  This is from a professor at the UCLA Lewis Center for Regional Policy Studies, Shane Phillips.  To call it a study is not right, it’s more of a thought experiment (you know, like what Albert Einstein would do which led him to come up with the Theory of Relativity…), but it’s well thought-out and leads to some interesting ideas.  Essentially what Prof. Phillips says is that communities, way back in the dark past, used to have land use regulations in place that allowed for lots of growth and development.  The pace of growth was much slower than the potential might have allowed for, and as such there was no artificial market created that drove up land values.  Since most communities switched to predominant restrictive single-family zoning, the availability of land for future growth has been much more limited which eventually has led to rapidly rising land values (because the market is constrained).  He goes on to say that various ways to deal with this, like value capture through things like inclusionary zoning have some limited benefit but not really that much.  The way to deal with it, he says, is to broadly rezone property in communities to allow for more density, and not just a little like three- and four-plexes, but for moderate three- and four-story buildings.  The broad availability of such land will mean that no particular property owner can capitalize on his/her advantage and drive up land prices.  It’s a cogent argument, but, as one who follows the politics of land use closely, I immediately thought, “right, good luck getting cities to broadly rezone like that,” and Prof. Phillips acknowledges that reality.  What it also means, though, is that these big zoning reform efforts underway in various states and locations will likely not produce much reduction in the cost of housing because they’re just too limited.  Here’s a couple of excerpts from his paper:

While ambitious, broad upzoning does have important selling points that could ease its adoption. For one, it benefits both market-rate and income-restricted housing developers, reducing costs and eliminating the perceived competition over available land between the two groups. Broad upzoning favors small-scale developers — the builders of “missing middle housing” who are more popular with the public than their larger, wealthier, more politically connected peers. Missing middle housing itself, such as courtyard apartments and three- and four-story apartment buildings, is also more welcome in many places than taller, denser developments. Renters and homebuyers across the housing market also benefit from broad upzoning, far outnumbering the windfall recipients and housing lottery winners who benefit from our current approach.

Finally, I must acknowledge the political challenge of broad upzones. This approach may be more effective at promoting affordability than the alternatives of windfall- and value capture-based zoning reforms, but its effectiveness is also its greatest political vulnerability.

It’s worth the read and some thought.

 

THE TRANSIT STATION LABORATORY

February 11, 2022

Once again, only a relatively minor land use-related bill shows its face, while the biggies continue to be out of sight.

Yesterday, we saw HB372 – Short-Term Property Rental Act appear.  This is a short bill, one that was anticipated as we reported in an earlier posting because of residents’ concerns about ADUs becoming short-term rentals.  The bill provides that a local jurisdiction can by ordinance prohibit the offer of housing for short-term rental on a short-term rental website if it is not in an area that is authorized by local ordinance for short-term rentals.  It appears to me this is trying to give a cause for enforcement action to such unauthorized STRs because in the STR bill passed by the legislature a couple of years ago, it stated that advertising an STR on-line could not be the sole cause of action for enforcement against such facilities.  Okay.  We’ll see if this works.

On another topic related to the more anticipated bigger land use bills, it became more obvious to me that there is a lot of behind-the-scenes “open” discussion going on over the station area planning requirements bill.  A number of our local government friends have been involved in this as the bill becomes more and more a vehicle to achieve an “easy” win on the housing affordability issue.  Everybody thinks that higher housing densities and mixed use belong around fixed-rail transit stations, right?  This approach has been used in a number of places around the country lately – take a look at such moves in California (and some more California), MassachusettsWashington StateTorontoMontgomery County, and many other places.  The common factor here is that areas around transit stations are viewed as the place to start with allowing more housing and more kinds of housing.  That issue is now playing out here in Utah as well.  As I said, we’re hearing about lots of talk ongoing.  There are lots of interesting issues playing into this, including if there should be minimum density levels, and since such development can serve an area that includes more than one community, how would a potential referendum be handled?  Can’t wait to see what the bill finally says.

 

PRESSURES GROW…

February 9, 2022

Still nothing showing up on the major land use bills we are waiting for, but plenty of behind-the-scenes talk and discussion going on about them.  Just waiting…

Utah Lake continues to grow as an issue at the legislature this year.  Some legislators are apparently having second thoughts about making it easier in the past to transfer ownership of lakebed land to private interests, and this has prompted some clashes in committee meetings and in demonstrations held by citizens at the Capitol.  Here’s a news story outlining what’s happening, at least in part.  There’s other stuff happening too, like the suit-countersuit folly going on in the courts.  Stay tuned…

Another land use-related issue is starting to show its head again – homeless shelters.  In this case, it has to do with temporary shelters, to handle wintertime need to house overflow numbers.  Interestingly enough, Craig Call and I got a question about this very topic – can the state override local land use regulations to allow homeless shelters – in last night’s land use seminar in Taylorsville.  You may recall a few years ago the issue of locating and building new homeless shelters in dispersed locations became a big controversy, in part, of course, because no one wants one.  The legislature eventually stepped in and passed bills stipulating where and how such facilities would be located, overriding much of the local regulatory authority.  Apparently the same issue is cropping up again this year, over temporary facilities intended to relieve pressure on the permanent facilities during winter months.  Here’s a story about this issue.  Relevant to the land use topics we discuss in this blog, here’s a couple of clips from the story:

…local resistance to these new shelters has been such a persistent problem that a leader in the Coalition to End Homelessness wonders if top-down pressure from the state might ultimately be necessary to make progress. …

Hill says the coalition has a “shortlist” of potential sites for a shelter specifically targeted to older or medically frail people.

To advance much further with the plan, though, providers will need the local approvals for a facility like this, and Hill has her doubts that one will step forward voluntarily.

“My fear is we’re going to need legislation to make that actually work,” she said. “Because getting through zoning processes in areas where no one really wants to see these facilities … we’ve experienced that many times.”

Oregon’s legislators last year passed a bill removing local land use barriers that made it difficult to open homeless shelters in the state, so Hill said her suggestion isn’t unprecedented.

Hill says advocates aren’t pushing Utah lawmakers to pass such a bill just yet — but they do want to pick a facility by sometime this summer and are hoping for a breakthrough soon in their conversations with Salt Lake County cities.

 

SLOW DAY

February 8, 2022

Not much to report today on the legislative front.  Some interesting insights came from the League’s Legislative Policy Committee meeting yesterday that are of interest.  Most notably, there is considerably back and forth going on between municipal representatives and House Majority Leader Mike Schultz over his HB151 – Retail Facility Incentive Payments Amendments bill, which on it’s face would pretty much prohibit any local financial incentives for retail developments.  The debating is around things like what kinds of projects to exempt, places to exempt, and so on and so on.  It will be interesting to see how this bill finally ends up.

There’s also a lot of discussion about the much-talked-about Station Area Planning bill going on in meetings.  Lots of municipal folks involved in this one.  Waiting for it to get the nod and come out.

There was discussion about some other behind-the-scenes things being talked about, including the idea that the state may create a land use authority (not as defined in LUDMA!) similar to MIDA, which could upon finding that there is a state need for certain land uses (like housing affordability) impose it’s own land use regulations in certain places, overriding local regulation.  It was mentioned as an idea prior to the legislative session.  As you might imagine, that concept was just blasted by local officials, but it doesn’t seem to have gone completely away.  That might be what’s in store for the bill file that Rep. Schultz has open titled Regional Development and Logistics Amendments.  I kind of don’t think there will be a serious effort for this, but stranger things have happened in the legislature over the years I’ve been watching it, so…

One kind of interesting bill that did pop out yesterday, HB343 – Water Supply Amendments, which deals mostly with how municipal water systems deal with providing water in areas outside their boundaries.  There’s language in there about how water may need to be supplied to approved subdivisions and how, and so on.  Take a look, it may affect what you do and how water may need to be considered in new development/subdivision proposals.

 

WEEK 4 BEGINS – ONLY 4 REMAIN!

February 7, 2022

Week 4 of the legislative session gets underway today. A couple of new bills of interest came out late Friday.

HB327 – Airport Land Use Amendments has been talked about for a while because of conflicts that arise between existing airports that are located in one jurisdiction but owned by another – for example, Salt Lake City owns airports, besides the big SLC International, in West Jordan and Tooele.  The bill makes some modifications to the Airport Zoning Act in state code to try to encourage (a word that is used in the new amendments several times) and accommodate better coordination and cooperation for protection of airports and land use around them.  There have been some conflicts, prompting this bill.

The other bill of interest is HB322 – Public Transit Capital Facilities Modifications.  Here are a couple of new stories from the DesNews and Trib that describe what this bill does.

And Utah Lake continues to stir up lots of churn.  Here’s an opinion piece by a member of the Provo City Council on the current controversies about how to “improve” the lake.  To underline the level of interest in this, the League will be holding a short meeting right after their LPC meeting today at the Capitol about HB232 – Utah Lake Authority, for all those interested in this issue (more and more as time goes on!)

 

WHAT MAY COME?

February 4, 2022

Still no sign of the big land use bills we are waiting for.

However, there are some interesting bills that have been requested, some in just the last few days.  Here are the bill request titles that I found and what, if anything, we know about them.

Digital Billboard Amendments – no surprise about this popping up, given what may happen with billboards upon the ruling by the U.S. Supreme Court later this year.

Zoning Plan Amendments – not sure what this is about.  Requested by Rep. Mike Kohler.

Local Agricultural Land Use Regulations – not sure about this one either.  Requested by Rep. Joel Ferry

Municipal and County Land Use and Development Revisions – the much anticipated land use task force bill, being carried by Rep. Steve Waldrip

Utah Housing Affordability Amendments – the also anticipated housing affordability changes much debated and talked about, also carried by Rep Waldrip

Housing Availability and Development Amendments – by Rep. Ferry, ???

Airport Land Use Amendments – also a big blank for me, Rep. Ballard requesting

Regional Development and Logistics Amendments – hmmm, interesting title, might relate to tying state funding to conformity with regional transportation plans, but this is being requested by Rep. Mike Schultz and that’s not been one of his big issues

Transportation Revisions – Sen Harper asking for this one, may have to do with provisions for Transit Station planning which is in the works, just haven’t seen another bill title that would specifically relate to this.

So, stay tuned, plenty still could happen.

 

HERE WE GO

February 3, 2022

At last, a couple of significant planning bills came out yesterday, though they were not the ones we’ve been waiting for.  Again, we’re getting bills that have not been vetted through the land use task force.  Not unexpected, but disappointing that the process to avoid clashes and conflict over land use is being bypassed (seems to fit with the political climate of the day).

Most notable is HB303 – Downzoning Notice Amendments – rather a mess of a bill (editorial comment).  This bill would require that notice must be given to all affected property owners of any proposed change to land use regulations at least 30 days in advance.  Currently the code only requires notice to individual property owners in proposed rezones, 10 days in advance.  The purpose of this notice is then to allow any property owner opportunity to file an application for approval under current land use provisions before any proposed changes are allowed to move forward.

This proposed bill is clearly aimed at allowing property owners to avoid the changes that may come from a proposed downzone.  I’ve picked up word that this bill was specifically triggered by a proposed action in a Wasatch Front community, which has since been resolved, but that hasn’t stopped this proposal from moving ahead anyway.  I’ve also heard rumors that the original intent for this bill was to do something similar to what was passed by initiative in Arizona in 2006 which requires local governments to compensate property owners for loss of value when property is downzoned, but cooler heads prevailed with the current moderated language in this bill.

This bill would substantially change the vested rights and pending ordinance provisions that have been in place in Utah for a considerable time now and which has seemed to work reasonably well.  That’s not to say that current rules and practices should always remain in place just because, but making such substantial changes to such rules ought to be carefully considered and discussed to ferret out the merits and shortfalls.  None of that has happened with this bill.

Here’s an insightful critique of the bill as written by a credible Utah land use attorney who is well-versed in current land use law practices:

It is overly broad, fails to amend the pending ordinance doctrine in the other sections of the code, amends only the city code and not the county version, and is otherwise impractical.  It casts such a wide net that cities would at times be required to notify everyone of every change in the general regulations and everyone in the zone if only one zone is affected.  It does not say, for example, that the person can file a notice related to an application that would otherwise be affected or prohibited by the proposed change, but that if the property owner received a notice then he or she cannot file any application at all – even if not affected by the change – without a notice being filed as well.  It is problematic that it says that the owners who received the notice can attempt to exempt themselves – but only if they received it.  Whether or not the city mailed it is immaterial.

Another interesting bill out yesterday is HB305 – Natural Resource Revisions.  It makes some pretty sweeping changes to the state administrative structure for agencies dealing with outdoor recreation and for open space and agricultural land conservation.  It creates a new Division of Conservation in the Department of Agriculture and Food.  Most notably the bill does away with the Quality Growth Commission but reconstitutes it as the Land Conservation Board which will continue with all the duties of reviewing applications for land conservation, and none of the growth planning policy duties.  One provision in the bill I question is where the bill requires that funding for proposals for land conservation must be consented to by the local county land use authority.  I’m not sure that the drafters of the bill understand that a LUA is a administrative body, not a policy or legislative one.  As such, it is not the county governing body, but could be a planning commission, another body, or even a staff person.  If their intent is to get the blessing of the elected officials, that should be made more explicit.  Alternatively, the county governing body has the option to designate land use authorities for various processes, so it could designate itself as the LUA for these types of conservation applications, but this would require some education of everyone involved.

Okay, enough for today.  More fun to come, no doubt!

 

ADU TOO

February 2, 2022 (2-2-22!!)

Still none of the expected big planning bills out yet.

ADUs (accessory dwelling units) continue to be points of contention in a number of communities since the passage of HB82 in last year’s legislative session.  Anecdotally I’ve heard several comments from different communities about them, not necessarily against them, but concerns about how they get implemented and what is done with them.  The biggest share of concerns seem to center around such units becoming short-term rentals (and associated with that, requiring that the homeowner live in either the main home or the ADU).  I just got a question about that very thing in a meeting last night.

To the topic, here’s a story about a meeting by Cottonwood Heights officials with their area legislators to talk about a number of issues, including ADUs.  Here’s a clip:

A majority of the 24 residents who attended the open house inquired about ADUs (Accessory Dwelling Units) and short-term rentals. Last year, the state legislature passed bill (HB 82) allowing ADUs in single-family zones. Cities throughout the state were required to update their zoning laws accordingly.

“We are creating the problem we tried to solve,” Reibe said. “(ADUs) are starting to be Airbnbs and short-term rentals. That was not the intention.”

Instead, the intention was to help provide solutions to the housing crisis in Utah. Both legislators mentioned their concern.

“Summit County is 70% vacant,” said Bennion, meaning 70% of the housing available within Summit County is used for short-term rentals or second homes.

“Moab is at least 15% vacant,” Reibe echoed. “We have to find more solutions.”

Both Bennion and Reibe shared that over 40% of the members of the Utah legislature are involved in real estate in some way.

They also mentioned they will be supporting a bill sponsored by Rep. Carol Spackman Moss (District 37) to alter the enforcement protocol for ADUs.

Rep. Moss does indeed have a bill file open for an ADU-related topic, so we will wait to see what comes of it.  In my opinion, ADUs are an excellent way to help address the housing issues in our state and it would be a real shame to see much curtailment of their availability.

 

ON THE ONE HAND, THEN ON THE OTHER HAND…

January 31, 2022

A couple of interesting surveys on growth and development that came out in the past week that I want to point out a few things about.

The first is the third installment of the Utah Foundation’s “Missing Middle” report, which gives the results of a survey about Utahn’s preferred and acceptable housing development.  The second is a survey conducted by Envision Utah survey which describes, among other things, Utahn’s attitudes towards growth. Viewed in the light of the housing affordability crisis, there’s some good news, but maybe not really given the realities of local government politics.

First, the Utah Foundation survey, titled Utahn’s Housing Preferences.  Lots of interesting information in this survey, which to no one’s surprise indicates that state residents overwhelmingly say single-family homes are their preferred style of new housing development.  As current data points out, cost trends make it obvious that this style of housing is increasingly less affordable, becoming out of reach to a substantial majority of those seeking new homes, especially first-time homebuyers.

However, there is some hope that seems to be indicated in the Utah Foundation survey, as expressed in a piece by Foundation President Peter Reichard.  He says in part,

Most survey respondents (60%) support more affordable housing options in their neighborhoods, with 38% strongly supporting more options. To address affordability issues, about 46% of survey respondents would accept middle housing in their neighborhoods. But Utahns are generally not fond of having apartment complexes nearby. In other words, there is the possibility of bringing in a wider variety of housing units, even within existing neighborhoods, but it should harmonize with the neighborhoods.

That sounds really good!  But then I read what’s in the Envision Utah survey, in which Utahns are not so thrilled about new growth of any kind.  From a Deseret News story:

A survey conducted by Envision Utah found that many Utahns aren’t excited about the population boom. About 42% of respondents think future growth will make the state worse — 13% said “a lot worse,” and 30% said “a little worse.”

…the survey points to an increasing number of Utahns who say not only is growth bad, but it should be stopped. That sentiment can sometimes result in opposition toward zoning measures and loosened regulations that, as the governor says, would “increase supply.”

Roughly 23% of respondents say growth jeopardizes the quality of life and that the state and its residents should try to stop or slow the influx of people.

“This was concerning to us. This is not something we’ve seen before,” said Jason Brown with Envision Utah. …

Some of the perceived negative consequences of growth are the increasing costs of housing and housing shortages…

So in other words, it’s the unwanted growth that is causing the crisis in housing affordability.  Well, in the real world, it’s not very possible to stop growth, unless of course there’s no place for these new wanna-be Utah residents to live  So – no build, no growth!  And how does such a policy express itself?  Sky-high costs for housing.

But wait, didn’t we just see in the Utah Foundation study that Utahns are willing to accept middle-missing housing?  Well, maybe so, if they’re okay with new growth (which according to the EU survey many are not).  And, of course this is according to a statistically valid survey.  But I ask you, do we get statistically valid cross-sections of citizens who show up to local council meetings where new housing developments are proposed?

There’s plenty of anecdotal and even statistically valid research that indicates that local land use policies are primarily driven by the owners of single-family homes who show up to those meetings and get elected to city council seats. And, as the EU survey shows, many of these folks think we should try to stop growth.  So, does “missing middle” housing, which appears to be more and more necessary to address the affordability issue, really have a chance?  Hmmm….

 

WEEK 2 ENDS

January 28, 2022

Just about two weeks into the legislative session and still waiting to see some of the major land use bills that have been talked about forever.  Today is the last day any new bills can be requested, so any pending legislation will have to appear in one of the bills already listed as being in progress.  When those will come out, though…

Though I titled this as week 2 ends, some more bills may pop out later today, in which case I’ll send out another quick update, so stay tuned.

Miranda Jones Cox at WFRC has put together an excellent summary of what SB140 – Housing and Transit Reinvestment Zone Amendments does.  In case you haven’t seen it, here it is:

  • Allows HTRZ to be proposed around a light rail or BRT station (currently HTRZ is only allowed around FrontRunner commuter rail stations). This is intended to encourage housing and mixed-use “transit oriented development” around more stations.
    • Limits the size of a proposed HTRZ around light rail or BRT to 1/4 of a mile and no more than 100 noncontiguous acres (currently HTRZ around FrontRunner is limited to 1/3 of a mile and no more than 125 noncontiguous acres).
    • Limits the period of value capture for HTRZ proposed around light rail or BRT to no more than 15 consecutive years within a 30-year period (currently HTRZ around FrontRunner is limited to 25 consecutive years within a 45-year period).
    • Limits the maximum number of HTRZ in any given county to eight around light rail and three around BRT (there is no limit for FrontRunner stations).
  • Currently, an HTRZ is required to have a minimum of 50 units per acre. SB140 changes units/acre to “equivalent dwelling units”/acre (“EDU”). An EDU is one legal sleeping room. This is intended to encourage units with more bedrooms, suitable for larger families.
  • Clarifies that the 50 EDU/acre requirement applies to the portion of the HTRZ that is dedicated to residential development (not to the entire HTRZ area).
  • Currently, the maximum tax increment capture a city can propose is 80%. SB140 would reduce this to 60% if 40 EDUs are proposed/acre, and 40% if there are 30 EDUs proposed/acre.
  • Requires that a city HTRZ proposal include:
    • an evaluation of the proposed HTRZ impact on parking availability.
    • possible benefits to active and public transportation availability and impacts on air quality.
  • Requires that the HTRZ gap analysis evaluate the proposed density and increment capture needed to ensure a reasonable return on the investment, and the minimum amount of potential public financing needed to achieve the HTRZ objectives.
  • Modifies the HTRZ review committee composition to add representatives with financial expertise – with individuals from the State Treasurer’s office and Tax Commission.
  • Requires that the zoning for an HTRZ be in place before the HTRZ committee takes final action, rather than before the city submits the proposal.
  • Clarifies that municipalities are required to participate at the same rate of tax increment capture as the county.

Check in to the blog here this weekend sometime, I will take some time to write about the recent surveys by Envision Utah and the Utah Foundation about housing character, what residents like and don’t like, etc. Interesting stuff

 

ANIMALS AND TRANSIT ZONES

January 27, 2022

Two more bills out as of last night.

HB253 – Large Concentrated Animal Feeding Operations Amendments – simply removes the deadline for adopting an ordinance in local land use codes regulating LCAFOs, which was Feb. 1, 2022

SB140 – Housing and Transit Reinvestment Zone Amendments – makes a number of changes and modifications, the most significant for land use is requiring that the local jurisdiction have in place zoning and land use regulations that are consistent with the development being proposed for the area in the HTRZ area.

Interesting story about the Utah Lake Authority bill.

Here’s the APA Utah bill tracker, thanks to my friend and colleague Scott Hess!

I’ve got more interesting stuff to share, but I’ve got to run right now, check back soon.

 

NEW BILLS, MORE STUFF

January 26, 2022

New Bills

Two bills of interest introduced yesterday in the state legislature:

HB227 – Recreational Trails – makes some modifications to the state recreational trails program and administration, most notably the process for dealing with a complaint relating to the trails use and purpose.

HB232 – Utah Lake Authority – we’ve talked about this in previous posts, this is the awaited new bill (last year’s bill was tabled to allow for more discussion and reconsideration).  This bill establishes a new specific purpose “regional” entity.  It will have lots of planning responsibility, being charged with developing a Utah Lake Management Plan and other related policies.  It is to do this in cooperation with other entities that border the lake and/or have impact upon it.  It does not have any direct regulatory authority over any of these other entities, but it does over the area it is given jurisdiction for.  That area is defined as the legal line of compromise for the lake, which is set at 4,489 ft. above sea level.  Most of this area is under the water of Utah Lake, but not all.  The authority has direct legal authority over this area to manage, allow for development projects, etc., including land use authority.  This would mean that if the much-discussed plans for creating new islands in the lake and building new communities on them were to actually happen, the Authority would have land use jurisdiction over them, not any of the surrounding communities.

Green Lawns

An interesting story in the St. George News about HB95, the bill prohibiting requirements for lawns.

Zoning Reform

To re-emphasize my points made in yesterday’s post about cooperation between levels of government being the best way to move any kind of “zoning reform” forward, here’s a story about how things are going down in Massachusetts, which passed a zoning reform bill last year. Titled Can You Force the Suburbs to Build Apartments?  Massachusetts is Trying, it details how rocky going down such a road can be when not everyone is on board:

The Boston suburb of Essex, for example, requires a four-bedroom apartment include six parking spots! “As a developer told us in a forum last week,” he said, “there’s also a concern that as-of-right zoning could have so many restrictions that it ends up being infeasible.” Even well-meaning rules, such as affordability requirements or environmental standards, can put a chokehold on new supply.

More worrisome, perhaps, is the possibility that suburbs can fulfill the mandate by redrawing zoning maps to include existing apartment buildings constructed during a more freewheeling era. According to the planning council, this double-counting could reduce the law’s impact by 75,000 units, nearly 25 percent of the total, especially in places that are already relatively dense and well served by transit—such as the college towns of Cambridge and Somerville. Perversely, this means that those places could sneak through allowing little new housing—while some faraway small towns zone for rapid growth.

Finally, there’s the concern that prosperous suburbs will simply not follow the law—a possibility that a couple of Newton councilors suggested might be easier than abandoning their right to shape future projects. “It remains uncertain what the courts will do if they don’t comply,” said Clark Ziegler of the Massachusetts Housing Partnership, which is working with jurisdictions on adapting to the new rules. “It is a mandate. It’s not an opt-in.” But if penalties don’t go beyond loss of grants, the mandate may not legalize apartments in very many suburbs. That, in turn, would funnel pent-up demand into those jurisdictions that do permit new apartments, increasing the burden of compliance.

It ain’t easy being green!

 

MUSINGS OF AN OLD PLANNER WHO’S SEEN A LOT

January 25, 2022

I just have to say that the activity and energy spent this year on growth related issues and planning is as much as I’ve ever seen.  The only thing I can compare it to was during the high-growth years of the 90s, when the state code for planning enabling legislation was rewritten to create LUDMA, the Quality Growth Commission was created, and Envision Utah was founded.  It’s being driven I’m certain by our nation-leading growth rate and the crisis in housing affordability.  The latter is very much an issue in much of the country as well, leading to what is broadly being called “zoning reform” – efforts to overcome NIMBYism and allow higher densities and limit or eliminate exclusive single-family residential zoning.

Not only have we had significant changes made in the last couple of years to the requirements for Moderate Income Housing plans and the establishment of a Commission on Housing Affordability, the talk about what else to do is at nearly a fever pitch right now.  Everybody is becoming a planning and land use expert, given what I hear about discussions going on behind the legislative scenes right now, in addition to the overt efforts like the CHA, conferences on the future of the Great Salt Lake and Utah Lake, and the discussions being held by the Unified Economic Opportunity Commission (see previous posts).  There’s talk of funding a statewide discussion on growth and planning, of making significant changes to the way land use is regulated at the local level (not quite the zoning reform we’re seeing elsewhere, but close), and establishing significant new state-level growth management policies.

I may have given the impression from some of my previous posts that I am not in favor of some of these efforts, but let me assure you that is not the case – things could use a good shake-up.  What I’m worried about is if we’re going to go through the effort of making these changes, we should do it in a way that would help them to be more successful.  When I see what is being pushed through in places like California and Oregon and now maybe Washington State, without the support of many local officials and citizens, all that effort may go to waste.  Don’t get me wrong, I do believe that NIMBYism is a serious problem, but the evidence of what is happening in these other places indicates that we must be careful about how we implement things.

Here’s an example.  One of the things being discussed extensively in Utah right now behind the scenes is requiring local governments to put in place provisions to allow for more mixed use and higher densities around transit stops – transit-oriented development as we planners call it.  We need to be careful, however, to not engender problems similar to what has cropped up in other places that have tried this.  Here’s an interesting story about the experiences of places like Massachusetts, Atlanta, Chicago and California that have been undertaking similar efforts.  It’s not gone smoothly oftentimes.  Here’s a snippet from the story about California’s moves:

In California, which has arguably the worst housing shortage in the country, some state lawmakers have repeatedly sought to force cities to allow denser housing near transit stops. While statewide efforts to mandate local transit-oriented upzoning have so far failed, some incentive programs at the state and local levels have shown results.

And in Atlanta:

the bills failed to clear the committee amid opposition from many neighborhoods. Homeowner resistance to denser housing often cuts across partisan divides, Farokhi noted. “History has proven that with single-family homeowners across the country, their initial reaction is oftentimes to resist even mild increases in density,” he said.

And in Washington State, where the legislature is currently considering a bill that would essentially eliminate exclusive single-family residential zoning, these comments were made during the bill’s committee hearing this week:

“(Auburn City mayor Nancy Backus) said it will be difficult for cities to overhaul all utility, transportation, housing and capital facility elements to accommodate more density.  Federal Way Mayor Jim Ferrell said he thinks the bill is too much of a one-size-fits-all approach to solving the “missing middle” problem. He said he believes the bill would undercut local control of Federal Way’s well planned, middle density development.  “I think ultimately this comes down to local control,” Ferrell said, “We ask that you please stop this mandate that offers this limited solution but allows for more local control” and “maintains a city’s ability to determine the best way to address this critical issue.”  https://www.thereflector.com/stories/proposed-law-would-force-cities-to-increase-housing-density-in-single-family-neighborhoods,282988https://www.thereflector.com/stories/proposed-law-would-force-cities-to-increase-housing-density-in-single-family-neighborhoods,282988

In yesterday’s Legislative Policy Committee meeting of the Utah League of Cities and Towns, League executive director Cameron Diehl said of all the land use proposals floating around the legislature right now that we must not do as California did (“we don’t want to be like California!”) where such changes were forced onto the local level by the state, but should instead have state officials work cooperatively with local officials to craft solutions that will have a better chance of being accepted and succeeding.

The talk behind the scenes on growth management right now seems to be considering things, in addition to “required” TODs, like regional “fair share” for affordable housing (see the Mount Laurel New Jersey cases) and tying the awarding of state infrastructure funding to local land use policies (can you say “smart growth?”), and many others.  I’m in complete agreement with Cam, that the best way to accomplish such things would be through cooperative initiatives between all levels of government.

 

MONDAY UPDATE

January 24, 2022

Interesting story in the Trib over the weekend about the bill that would create a new Utah Lake Authority.  Again, as we’ve noted earlier, this is another example of special purpose entities the state creates when extraordinary issues crop up (think MIDA, Port Authority, Point of the Mountain Commission).  Keeping our eyes on this one.

Also, I wanted to give you a rundown of the various funding proposals that are being considered in the legislature this year related to planning and dealing with growth, but Miranda Cox Jones at the Wasatch Front Regional Council has done such a good job of compiling them, I’ll just steal her summary and reprint it here! (thanks, Miranda, great work!)

  • $232 million to replace the previously authorized bonding for the strategic double-tracking of FrontRunner bonding with cash. This would save over $30 million in interest costs, and would mean that funding will be available in the future for additional transit projects, rather than having those funds committed to paying debt service on bonds. This proposal has been endorsed by the Legislature’s Executive Appropriations Committee.
  • $46 million for regionally important active transportation projects. This funding would build upon the $35 million appropriated last year for active transportation. When coupled with a 20% local match, this would allow the completion of priority projects around the state.
  • $600,000 in ongoing additional funding to UDOT’s existing Technical Planning Assistance Grant Program which provides transportation planning assistance to local governments.
  • $1.05 for technical planning assistance to Utah’s Associations of Governments (including WFRC) for training, grant writing, and other technical assistance to local governments.
  • $1 million to fund a statewide growth planning and communications effort which is intended to help gain the public’s confidence in the state’s growth management efforts, and set a clear policy direction for Utah’s leaders to ensure sustainable growth.

 

LET’S ALL DO THE WAVE!

January 21, 2022

Gov. Cox gave his State of the State speech last night to a joint session of the state legislature and, as usual, talked about many things.  Part of his speech in particular caught my attention, as he talked about “The Wave.”  What?  What wave?  At the risk of beating a metaphor into the ground, if you’ve been reading previous posts here, you know that I’ve been saying that the nationwide “wave” of zoning reform in many states and communities is sort of headed for Utah.  And the governor’s speech reinforced that thought for me last night.  Here’s the section of the speech I’m referring to:

While water is the greatest limiting factor to our growth, there are several other pressing issues

we must address including air quality, transportation, housing affordability and other

infrastructure needs. Our goal should never be to grow for growth’s sake. We must prioritize a

quality of life that all Utahns can enjoy.

To Utah’s newest residents — and as the fastest-growing state in America there are many of you

— welcome to our beautiful state. We are happy you have chosen to call this your new home.

We have so much to learn from you.

Legislators, this session I ask for your support of new bills spearheaded by Reps. Joel Ferry,

Steve Waldrip, Joel Briscoe and Sen. Jake Anderegg to remove government regulations that

needlessly increase Utah’s housing prices.

We can increase supply without decreasing quality of life. This one will not be easy. But we

cannot let our state become California.

For the first time ever, people on the Wasatch Front are experiencing something that those of us

from rural Utah have felt for far too long: the terrible realization that our kids and grandkids

might not be able to live near us. In rural Utah that happens because of a lack of jobs. Along the

Wasatch Front, it’s due to the unsustainable increase in housing prices.

We have to get this right. We must act now.

 

Now, what government regulations that needlessly increase housing prices could the Gov be talking about?  Oh, wait, most land use regulating is done at the local level through ZONING!

Can you all do The Wave?

BBC News - Who invented the Mexican Wave?

 

A PRETTY, GREAT PLACE – IF YOU CAN FIND A PLACE TO LIVE!

January 20, 2022

One bill I failed to catch earlier and make note of as a planning related bill is HB35 – Economic Development Modifications.  This bill primarily has to do with targeting particular classes of business for economic development incentives and the conditions and circumstances for that.  But it does do something new, in that it allows local governments to create Economic Development Zones within their jurisdiction (currently these zones must be created by a state entity with concurrence by the local government).  Such zones are to be located within a commercial or industrial zone, and the local entity must be willing to provide for local incentives for identified businesses.  The local entity must also adopt a long-term plan that addresses within the area the needs transportation and infrastructure, workforce development, and housing.

As noted in an earlier post, the state is recognizing that incentivizing businesses to come into the state not only brings economic benefit, but also impacts our local resources like transportation and, more critically at this time, available housing.  If a business is going to create a bunch of new jobs, where are those employees going to live?  There will be other bills this session that tie these factors together.  About time!

 

WATER, WATER EVERYWHERE (ACTUALLY, NOT HERE!)

January 19, 2022

A couple more interesting bills to take notice of.

HB135 – Open and Public Meeting Comment Requirements, which states that any public body holding an open public meeting must allow for “reasonable opportunity” for the public to make verbal comments during the meeting

SB110 – Water as Part of General Plan, stipulates that a local government general plan must include a water use and preservation element by December 31, 2025, and provides considerable detail on what that element is to address.

Wow.  Given our drought and growth in Utah, this is not surprising, and probably a good thing.  But it makes me wonder now how many other things may get added to the general plan as things that communities must consider.  It’s also interesting to note all the attention being paid to putting things like this and moderate income housing in our community general plans, but these plans are only considered advisory in our state, with no mandate that they have to be followed.

 

 

THERE’S NO STOPPING US NOW!

January 18, 2022

Today is the start of the 2022 Utah Legislative session!  What will it bring?

Last Thursday, the Salt Lake Chamber of Commerce held its annual Economic Summit, where they talk about what the state’s economy looks like, what the outlook is for the coming year, and with the legislative session right around the corner, what the Chamber’s legislative priorities are for this year.

You really get the sense that rapid growth, housing affordability and quality of life are right up there this year.  For example, in the category of business climate & economy, one of the priorities is:

We support policies that are geared towards smart growth strategies.

Okay.  To say you support smart growth is one thing, but that is a really fluid term.  What does the Chamber mean by smart growth?  Well, we get a better definition in the list of priorities for housing:

We support incentivizing housing near high-capacity transportation, jobs and other destinations, including transit-oriented, mixed-use developments that make smart use of land and allow residents to live in walkable, accessible communities.

This theme is carried on in the priorities for infrastructure and transportation:

We support local governments’ intentional efforts to plan and zone for mixed-use, multifamily and missing middle housing in coordination with high-capacity transportation and transit service. We also support requiring local governments to consider long-range regional transportation plans as they develop their general plans and zoning decisions.

There are more priorities listed that deal with land use, growth and quality of life.  You can take a look at the Chamber’s entire list here.  This list not only seeks to tell state officials and legislators what the business community thinks is important, but local governments as well, as many of them would require action at the local level.

Should be a most interesting legislative session this year!

 

DID I SAY THAT?

January 17, 2022

Next I want to post a bit about the recently released third installment of Utah Foundation’s report on missing middle housing.  This part of the report talks about what kind of housing is being built in Utah now, how it’s changed, and what styles of housing people say they prefer or can live with.  You can read the entire third part of the report here.

While the style of housing being built throughout Utah has changed pretty considerably the last few years (no doubt in response to changed conditions after the financial crisis triggered by housing, and by rapidly escalating housing costs), people still say they mainly prefer new home construction to be single-family detached housing (or stuff that looks very much like it).  This has got to be driven in large measure because, according to the study, some 74% of the survey respondents themselves live in single-family detached housing.  And in most places around the state, this style still constitutes the majority of new housing construction, though it is decreasing in dominance.

What I find rather interesting is that the study finds that:

Most survey respondents (60%) support more affordable housing options in their neighborhoods, with 38% strongly favoring more options. About 18% of respondents oppose more affordable housing options, while 22% are neutral. To address affordability issues, about 46% of survey respondents would accept middle housing in their neighborhoods…

While this is what people say in a survey, they sure don’t show up to the Planning Commission and City Council meetings to express that when different new housing developments are being considered!  Or even when the Moderate Income Housing Plan is being updated by the local officials.  Maybe instead of public hearings, more of our planning and land use decisions should be based on objective surveys of the community, but how to accomplish that in a reasonable timeframe and cost?

 

CAN YOU SEE IT COMING?

January 14, 2022

So many things have come across my ipad the last few days, such a target-rich environment, I have so much I could write about.  And I could tie it all together in one big post!  But that’s not a good idea, it would be way too long and most of you would probably quit reading long before the end, so I’ll break it up.

I think I’ll start with this – the latest place to join the zoning reform effort is Washington State, with some rather detailed and complex legislation proposed.  A good description of the proposals can be found in this piece by Dan Bertolet of the Sightline Institute.  The proposed bills (one in the House and one in the Senate of the Washington State legislature) would institute this formula:

  1. Up to sixplexes on all residential lots within a half-mile of a major transit stop in cities with populations of 20,000 or more.
  2. Up to fourplexes on all residential lots elsewhere in cities of 20,000 or more.
  3. Duplexes on all residential lots in cities with populations of at least 10,000.

The bills would do a number of other things as well, but suffice it to say it would be a significant change in the rules of local land use planning and regulation.  As expected, it has its supporters and detractors.  In a recent story about major issues to be addressed in the Washington legislature this year, Crosscut, an independent public-supported media website by Cascade Public Media, says:

“(Washington Governor) Inslee said the measure is needed to address a shortage of housing units throughout the state, which contributes to high housing costs. Local zoning regulations exacerbate the housing shortage by limiting the kind of “middle housing” — such as townhomes and duplexes — that can be built in certain neighborhoods, he said.

In a Crosscut/Elway Poll released this month, 55% of Washington voters said they didn’t approve of getting rid of single-family zoning in medium to large-sized cities, as Inslee’s plan proposes.

But Inslee said he thinks people in Washington do support building more housing when the idea is framed as a way to help solve homelessness and sky-high housing costs.

“I do believe people want us to address this issue,” Inslee said last week. “And what I have learned is that you can’t solve homelessness if you don’t build more housing, it’s physically impossible. We need more roofs. And to get more roofs, we need to remove some of these governmental restrictions.”

Wilcox, the House Republican leader, said he thinks those decisions should be left to cities.”

The bills are up for their first committee hearings on Tuesday.

And what of Utah?  Well, after the comments by Sen. Jake Anderegg and Rep. Steve Waldrip in this week’s Unified Economic Opportunity Commission meeting that I posted about a couple of days ago, and then this comment made yesterday by Gov. Spencer Cox at the Salt Lake Chamber’s Economic Summit, I think the wave that’s coming is getting bigger.

“Cox also shared his concern that the state’s explosive growth and escalating housing costs could lead to a generational exodus as young people may need to seek more affordable climes when they leave school and enter the workforce…. (H)e said that the upcoming legislative session would see bills focused on smart growth strategies that, while necessary, may not find favor with all audiences.”

Start swimming!

 

I’LL SEE YOUR TACO TRUCK, AND RAISE YOU A SCHOOL…

January 13, 2022

A few more bills relating to land use have appeared, again ones I had no idea were coming.  Maybe that just tells me how out of touch I’ve gotten on these legislative matters ☹

HB118 – Wetlands Amendments – just requires that anytime a local entity issues a permit that affects a designated wetlands area, a copy of the permit is to be submitted to state Division of Wildlife Resources.

HB128 – Education Impact Fee Amendments – this is a pretty big change – it would remove the prohibition on local entities from being able to charge impact fees for schools and educational facilities. Wow!

HB146 – Food Truck Licensing Amendments – makes a number of changes with regard to licensing and regulating food truck.  Notably, it now also includes ice cream trucks!

 

 

WHAT GOES AROUND, COMES AROUND

January 12, 2022

I listened to the meeting yesterday of the Unified Economic Opportunity Commission, which I have noted seems to be the de facto state body that looks at and considers the state’s growth and attendant impacts.  This is actually a pretty good body to have these discussions as the Commission is chaired by the Governor, with legislative leadership and committee chairs, state department heads, and local elected officials sitting on it.

Yesterday’s meeting was true to form, with considerable discussion about affordable housing, incentives for retail in community development project areas and the need to include housing, a state-led effort to have a conversation with residents statewide on growth and quality of life, and other things.

Sen. Jake Anderegg, co-chair of the Commission on Housing Affordability, made some remarkable comments about how leaving local governments to deal with growth impacts may not be the best way to deal with the issues presented by strong growth, and some of the proposals that are being considered for legislative action this upcoming session to deal with housing affordability.  Rep. Steve Waldrip, the other CHA co-chair, talked about things like housing regional fair share (most famously institutionalized with the Mount Laurel (NJ) court rulings in 1975 and 1983) and tying state infrastructure funding to conformance with state growth policies (ala 1990s Smart Growth programs in other states), which in my experience is pretty remarkable coming from a conservative state legislator.

State Planning Coordinator Laura Hanson then talked about the plans for holding a statewide Conversation About Growth with the state’s residents and some other initiatives, for which the Governor’s budget includes about $1 million for the coming year.  More on this later.

Take a listen to the Commission meeting discussion here, starting at about minute 40.  It’s truly gratifying that these issues are being discussed at the highest levels of state policy making.

 

THE GRASS IS ALWAYS GREENER…

January 11, 2022

More explanation behind HB95 which restricts requirements for installing and maintaining lawn/sod in this Deseret News story.

 

TWO LAND USE BILLS POP OUT

January 5, 2022

Bills are starting to pop out on land use issues, and once again there are topics coming up that have not had much discussion by land use interests.

HB85 – Eminent Domain Amendments – this bill would add parks to the list of things that government cannot use the power of eminent domain to acquire property for.  First trails, now parks.  Hmmm…

HB95 – Landscaping Requirement Prohibition – this bill would prohibit cities, counties, homeowners associations, and mobile home park owners from requiring property owners to plant and maintain grass and sod.  Obviously a water conservation measure, which begs the question, what else may be coming?  Interesting.

This is only the beginning, folks.

 

STATE OR LOCAL? WHO’S BETTER? A, B, OR NONE OF THE ABOVE?

January 5, 2022

So what is going to be the best way to address the issue of housing affordability?  For that matter, what is the best way to address any growth-related issue in our state?  State-level policies? Regional? Local?  Let the market prevail?

I’ve found some interesting research that addresses this topic and maybe presents us with some lessons to learn from, if we will.

I’ve noted in an earlier post that we seem to leave much of land use policy to the local governments, with some regional coordination for mainly transportation.  And when we do run up against some bigger policy issue that needs a broader overview, we take an ad hoc approach at the state level.  This is not unusual, as it appears that a number of other states take a similar approach.  A few have taken on the challenge of developing state-level growth and land use policies, like Oregon, Florida and Maryland.  But is one approach more effective?  Are there other considerations?

In a research project by Jerry Anthony, University of Iowa, titled Do State Growth Management Regulations Reduce Sprawl? he says:

“This paper provides a case study of one of the lesser-known states, Michigan, which is representative of the vast majority of non-growth management states. The study finds that Michigan has been influenced by trends from the better-known areas. This has led to a host of state, regional and local-level initiatives, sometimes wrapped in the language of economic development, aimed at [land use policies]. However, there is little evidence that these initiatives are successful. This is primarily due to the absence of state level mandates for planning, a lack of funding and a strong home rule tradition. The findings are probably repeated in many states across the nation: a proliferation of initiatives (emphasis added), which, with only few exceptions, will not represent best practices.”

This seems to describe Utah pretty well, particularly the part about absence of state level planning, lack of funding, and strong home rule tradition.  Every so often we get into problems that seem difficult to solve without better high-level coordination and even policy and program statements.  See MIDA, Inland Port, Utah Lake, ADUs (partially) and it looks like upcoming, the Great Salt Lake.

This seems to argue for doing a better job of statewide policy setting.  We’ve had such discussions in the past and sort of tried to do something along those lines, with things like the Quality Growth Commission.  And this year, it appears that the Unified Economic Opportunity Commission is becoming the overall arbiter of growth policy at a state level.

Indeed, there is some research out there that argue forcefully in this direction.  In a paper titled The Erosion of Home Rule through the Emergence of State-Interests in Land Use Control by John R. Nolan published in the Pace University Environmental Law Review, the author cites some issues that have occurred in New York State along these lines.  In an older court ruling on regional fair share for housing, the state’s court of appeals:

“… called for the state legislature to adopt a system of “State-wide or regional control of [land use] planning” to “insure that interests broader than that of the municipality underlie various land use policies.” The state’s highest court also minced no words (when) it stated that New York’s “zoning enabling legislation is burdened by the largely antiquated notion which deigns that the regulation of land use and development is uniquely a function of local government . . . . ” Under this system of local control, “questions of broader public interest have commonly been ignored.” The court referenced criticisms of community autonomy finding that local land use control suffers from “pronounced insularism” and produces “distortions in metropolitan growth patterns.” It noted that local control has the effect of “crippling efforts toward regional and State-wide problem solving, be it pollution, decent housing, or public transportation.

“How the regional impacts of local land use decisions are to be controlled is an enduring problem still seeking a solution in this state.”

And, I would argue, in our state as well.

More to come on this topic, stay tuned.

 

WHAT’S THAT ON THE HORIZON?

January 3, 2022

The day that changed tsunami science | PBS NewsHour

Remember when that Christmas tsunami hit in Thailand and Myanmar several years ago?  Some pictures came out later showing people on the beach kind of bewildered by the retreat of the ocean from the shore shortly before the giant wave crashed in.

That’s kind of what I feel like is happening here in Utah with regard to the housing affordability issue and local land use planning and regulation.  If you look out to sea, you can see the wave coming.  It’s coming from what’s happening all around the country, and even around the globe.

Here’s some more evidence.

This is from a review on the Planetizen website about the top planning issues and trends of 2021:

“A list of the cities, states, and even countries on the cutting edge of a dramatic overhaul of the planning status quo would probably surprise anyone even casually familiar with the history of post-World War II planning in the United States. Try these examples of zoning and planning reform from around the country and world: AtlantaBerkeleyBostonCharlotteChicagoDallasDenverIowa CityMinneapolis, the Port of Long BeachRaleighSacramentoSan DiegoSan JoséTacomaTorontoCaliforniaConnecticutMinnesotaNew Zealand, and the White House. All of these jurisdictions are leading zoning and planning reforms of varying scope and significance—some  by allowing new density and removing the exclusionary blanket of single-family residential zoning; some by removing the number of parking spaces required for development; some by rewriting local zoning codes; some by taking the law out of locals’ control. There’s even a growing chorus of calls for zoning reforms that allow corner stores and other neighborhood-serving retail spaces in residential areas.

“If that impressively long and varied list weren’t enough proof, researchers surveyed 800 municipalities (all located in the 50 largest U.S. metropolitan areas) for evidence of zoning changes enacted as a tool of affordable housing policy and published the results in the Journal of the American Planning Association. According to the study’s findings, 49 percent of municipalities were using zoning incentives (e.g., density bonuses, reduced development fees, streamlined permitting, and reduced parking requirements) in 2019 to spur the development of affordable housing. Among that total, 36 percent offered density bonuses, 3 percent allowed accessory dwelling units, 6 percent offered smaller minimum lot sizes, 18 percent offered building envelope extensions, and 18 percent offered reduced parking requirements. Eventually researchers will be able to say that those percentages continued to increase, and even picked up the pace, in 2021.

“The increased adoption of zoning and planning reform is spurred by multiple drivers. Housing prices are continuing to spike and new cities are joining the most expensive club, so some of these reforms are designed to improve housing affordability. The growing number of cities and states implementing zoning reforms unequivocally signals the increasing influence of the YIMBY movement in planning politics (and also at least partly explains a planning reform victory lap published by the Reason Foundation earlier this week).

“The zoning reform movement is also spurred by an emerging awareness of the discriminatory intentions of single-family zoning. Look no further than Berkeley, California for an example of the arc of exclusionary zoning history. Despite its reputation as a liberal haven (the city is often called the “People’s Republic of Berkeley”), Berkeley bears the ignominy of being the first city to implement exclusionary zoning, documenting its racist intentions in the process. For decades, Berkeley doubled down on the exclusionary system it invented. Now the city is undertaking a sweeping reform agenda to undo that legacy. In the past year, the Berkeley City Council has removed parking requirements for all developments, voted to end single-family zoning, and launched a process that could potentially add a 100% percent affordable overlay. The Berkeley Planning Commission is leading a push for new transit oriented density near stations on the regional transit system (i.e., BART).

“The momentum of zoning and planning reforms has even reached the institutions at the very core of planning practice. The American Planning Association (APA), a professional organization with every incentive to protect the status quo that it built over the decades, offered proof of its commitment to the growing reform movement with an article published in May 2021 calling for a “complete rethink” of zoning.”

On December 29, an opinion piece by Andra Ghent, professor of finance and real estate at the U., was published in the Deseret News.  While I question the professor’s understanding of local government politics and processes, it still is another example of the coming wave.  From the column:

“Third, the state can coordinate cities by harmonizing and simplifying zoning codes across cities within Utah. Land use control is a constitutionally guaranteed right of states, not municipalities. States can take back the power they have delegated to municipalities if it is in the public interest to do so.

“Harmonized zoning would encourage more housing supply because developers would know they could develop a certain kind of housing in several cities. A harmonized zoning code would also pave the way to scale potentially lower-cost home production techniques such as 3D-printing of houses and modular housing. Anything that reduces construction costs by encouraging competition or allowing economies of scale will in turn be passed on to households in the form of lower home prices and rents.”

And finally, in a recent excellent piece by David Brooks in The Atlantic titled How the Bobos Broke America, which is about how the politics of our nation has become so divided and compartmentalized and extreme, and what maybe to do about it, is this one line:

“For instance, we need more pathways to success, so those who are not academically inclined have routes to social leadership; programs like national service, so that people with and without college degrees have more direct contact with one another; and an end to policies like residential zoning rules that keep the affluent segregated on top.”

When land use issues are coming up in things like columns on what’s wrong with our national politics, I think I can see the wave coming!

 

TO BE, OR NOT TO BE (A TOWN)

December 31, 2021

As this COVID-ridden year comes to an end, a recent news story reminds me again of the “forgotten” growth and land use issue – annexation and incorporation.  A couple of stories about the on-going incorporation saga of Erda in Tooele County, and associated annexation conflicts, serves to point out all the recent battles of a similar nature that have occurred during this year – Hideout, West Weber County, Brighton, Olympia Hills, and others.

While we follow a lot of growth and land use controversies that sometimes lead to tussling over LUDMA provisions, we also sometimes see these kinds of battles erupt over the annexation/incorporation code sections, as occurred in the 2021 legislative session.  Many, if not all, the disputes over annexation/incorporation involve fights over growth and development – facilitate it (e.g., Hideout) or stymie it (e.g., Erda).

Many years ago, I was involved in the rewriting of the state annexation code, which resulted in essentially a two-track process – one for Salt Lake County (because of controversies with areas that eventually led to the creation of townships and all the headaches that went with that), and one for everybody else in the state.  Neither was particularly well-done, especially the Salt Lake County track.  Since then, there have been a number of amendments to these codes which have only served to confuse things even more.

There is a real need to completely relook these codes and recodify them.  It likely won’t solve all the problems, but it could make things better.

 

PLANNING  GHOSTS, PAST AND FUTURE

December 27, 2021

With the end of the year less than a week away, everyone is putting out their reviews of the past year, and/or a look ahead to the coming year. So, why not?  I’ll do the same for some planning-related issues.

Two interesting pieces I just saw that kind of embodied this approach for me.

The first is a report from the Pew Research Center titled Americans Are Less Likely Than Before COVID-19 To Want To Live in Cities, More Likely To Prefer Suburbs.  After all the talk over the last several years about how our metropolitan urban centers are growing so steadily, driven by younger and tech-oriented workers, it seems that the pandemic may have altered that trajectory a bit.  Looks like the “suburbs” are back in.  And as I noted in an earlier post, that surely seems evident by the growth taking place in many of our outlying suburban communities.  From the report:

“About a year and a half into the pandemic, there is some evidence that Americans are less likely now than they were before to want to live in urban areas – and more likely to want to live in the suburbs, according to a new Pew Research Center survey.   About one-in-five U.S. adults now express a preference for living in a city, down from about a quarter in 2018. The share of Americans who would like to live in the suburbs has increased from 42% to 46% during this time, while preference for rural areas is virtually unchanged.”

The share of Americans who would prefer to live in a city has dropped, while a growing share prefers the suburbs

“About three-in-ten adults in urban areas who say they would want to move (28%) say they would want to stay in an urban area, while 48% would want to move to the suburbs and 23% say they would want to move to a rural area.”

Some of this may well be due to the pandemic-forced trend of more people working from home, and the desire of these workers to have more room to do so, as well as the lessening need to travel into an office work location.  And it may also be driven in part by the cost of housing.  The report also notes:

“Fully 63% of urban residents say the availability of affordable housing is a major problem; 46% of suburban and 40% of rural residents say the same.”

Overall, the percentage of survey respondents who said affordable housing was an issue was 49%, up considerably from the 39% who said so in 2018.

I must note here, there was no definition given for what was considered urban, suburban, or rural, but with only these three categories to choose from, I’m guessing that most people would view urban as being metropolitan central areas like downtown New York, Chicago, or even Salt Lake City, while suburban means just about everywhere else outside those urban enclaves.

So that’s where we’ve been in the last year, and portends some of the challenges we have ahead for the coming year.

A second piece I read from the Herald Journal News titled Steering into 2022: Locals list wishes for Cache Valley in coming year gave me some insight into things that are on the minds of our fellow residents for the coming year.  The Journal asked readers to respond by email to the question they posed, “What do you wish for Cache Valley in the coming year?”  While this is admittedly a small sample of our total population, I think many of the thoughts expressed were similar to what I think we would hear from those all around the state.

Traffic and transportation appeared to be the top issue, and several suggested the way to alleviate that problem was to limit or stop growth, some even calling for a moratorium on issuing new building permits.  This all reflects a similar sentiment expressed in a recent Utah Foundation survey that showed that citizens think that rapid growth is a problem in our state.

But apparently this desire to limit growth collided with another concern expressed by respondents about affordable housing.  As the Journal noted in its story:

“Nobody on the comment thread suggested that building restrictions might lead to higher home prices — a situation Cache Valley finds itself in even in the midst of a residential building boom — but several locals did say they wish for more affordable housing in the coming year.”

Happy New Year, everyone!

 

LEGISLATIVE CHRISTMAS PRESENT

December 20, 2021

Just a quick update on some of the latest legislative stuff.

Here’s a link to some slides from the League about the various legislative modifications that the Commission on Housing Affordability is working on incorporating into a bill (or bills).  Some interesting provisions here, take a look.  I find the one about having to submit a map of each entity’s land use/zoning to the state an interesting one, not sure what that will accomplish.

And we have a bill draft out now.  HB36,  sponsored by Rep. Steve Waldrip and co-sponsored by Sen. Jake Anderegg, the co-chairs of the CHA, would disband the Commission on Housing Affordability and recreate it as a subcommittee to the Unified Economic Opportunity Commission, which committee I’ve posted about before as becoming the prime state-level body looking at the issues of growth in Utah.

More to come!

 

IT’S EVERYWHERE!

December 17, 2021

I was reading in last weeks issue of The Economist an opinion piece about growth that I thought sounded very much like the experience we are having here.  Titled Britain’s New Suburbs are Peculiar Places, it looks at how growth in British communities has been shaped by land use restrictions and NIMBYs, among other things.  It very much reminds me of our communities.  Noting that cities used to grow by accretion, where new developments took place within or directly adjacent to existing neighborhoods, now it’s getting pushed out farther away because … “established residents tend to prefer that large new developments remain a respectful distance..”.  As a result, the story notes, those new development are “sprawling and disconnected – a clump rather than a city.”  “Though the (new) estates are well-planned individually, they do not add up to a coherent town.”

The piece also notes that because of restrictions and objections, not enough housing in being built, causing an affordability crisis, and gives a rather good visual to explain how this happens:

“Britain is often said to be building too few houses, but that is not the whole story. Imagine a balloon that is being gripped by a pair of hands. The balloon is steadily inflating as the population grows and the national government nags local authorities to build new homes. Meanwhile the hands, representing planning restrictions and local nimbys, try to constrain any expansion. In many places the hands prevail, and little or nothing gets built. But in parts the balloon bulges spectacularly, resulting in many more homes than local people need.”

This seems to reflect pretty well what is happening all over the United States as well as in Utah, where the reference to a national government are instead the states here.  The bulges described usually take place in farther out areas because first, there are not so many people out there to object, and second there hasn’t been time for a constituency to develop to oppose development and get their cities to put in place more restrictive rules.

Want proof?  Take a look where the fastest growing communities in our fair state are.  It’s mainly on the fringes of the urban areas, not in the middle near the older more established neighborhoods.

  1. Vineyard       139         12,543         8923%
  2. Herriman      21,785    55,144           153%
  3. Bluffdale         7,598    17,014            123%
  4. Saratoga Sp. 17,781   37,696            112%
  5. Eagle Mtn.     21,415   43,623            103%

And affordability has now made this a state level issue.  As noted frequently, a number of states (and in some cases, large cities) are attempting to deal with this through what is collectively now being called “zoning reform.”  I’ve written about many of these previously, and here’s just another recent example:

New York takes aim at apartment bans: state bill would allow up to four units on lots, ban exclusionary policies

And as some of you may note, I kicked this whole post off with a piece from a British publication, which reflects that international nature of this issue.  To wit, here’s what is happening right now in New Zealand, which, like a number of other rich world countries, is also experiencing housing affordability issues:

Sweeping townhouse bill passes into law…, will force councils to allow more homes

As much as we are trying here locally to approach this issue in a reasoned, measurable manner, the tidal wave is coming.  It’s hitting everywhere else.

 

 

WE MUST HANG TOGETHER TO AVOID BEING HUNG SEPARATELY

December 13, 2021

Over the weekend I saw a couple of stories that epitomized for me the challenges of addressing housing affordability in our quite conservative state.

Now I need to say, I highlight these stories not because it’s like driving by a car crash and you just can’t help but stare at it.  It’s more about pointing out that such a seismic shift in an established institution like land use regulation, to succeed, is best accomplished by concerted collaborative effort.  Here are a couple of exhibits why.

A story in the Bangor Daily News (Maine) https://bangordailynews.com/2021/12/05/politics/maines-aggressive-housing-policy-push-runs-into-history-of-strong-local-control/  describes that state’s machinations in addressing housing affordability that sounds very similar to our own.  The state legislature there set up a state-level commission to come up with proposals, which are essentially a compilation of what has been tried or talked about in other states.

“A draft report released Thursday by a legislative housing commission proposed a range of solutions, including eliminating single-family zoning and annual caps on home construction, allowing homeowners to add accessory units like in-law apartments and allowing up to four units to be built in lots now zoned for one. It wants to steer aid to municipalities with housing-friendly policies and consider a state board that could overturn local development decisions.”

Gotta love that last one, which prompted the completely expected reaction from local governments:

“Kate Dufour, a lobbyist for the Maine Municipal Association and a commission member, supported most of the recommendations, but the association is against changes eroding the authority of member cities and towns, including eliminating growth caps and the state-level appeals board. Dufour hoped those items were struck from the eventual package and that the state offers municipalities help reaching the goals that it outlines, since local officials are going to be charged with “keeping the peace” once state policy trickles down to outcomes.”

And when that collaboration doesn’t happen – well, as I pointed out in an earlier post showing how creative people can be when they look for ways to get around rules they don’t like, there was a really crazy example from Atlanta in a story in Bloomberg CityLab https://www.bloomberg.com/news/articles/2021-11-22/buckhead-fights-atlanta-s-multifamily-housing-push?srnd=citylab

“Residents of the area collectively known as Buckhead in northern Atlanta are trying to ward off new proposals working their way through city planning channels that would allow for more multifamily housing, and many of them are willing to create a new city to prevent this from happening.”

Apparently the legal climate in Georgia allows for new cities to be created from neighborhoods in existing cities, and the residents of the Buckhead area are working to do just that to avoid measures being contemplated by the Atlanta city council to address housing affordability and racial disparity.

Collaboration, people, that’s what it takes, by all involved.

 

I THINK I’LL TAKE THE COMPACT

December 10, 2021

Unless you’ve been out of the country or stuck underground somewhere for the last couple of years, we’re all aware of the housing affordability issues and efforts to address those the last couple of years here, and around the country.  Lots of things are being discussed and tried, with inconclusive results at this point.

So I was just reading about an initiative that has been taking place in south Florida for a few years now, to address climate change.  It is a cooperative effort of four counties and 26 municipalities, called the Southeast Florida Regional Climate Change Compact.  It is a voluntary partnership created by all those entities, and has achieved some modest successes.

The thought came to me, what if we tried to do something similar here along the Wasatch Front, but for housing affordability rather than climate change?  Here are some sections I was reading about this, where I have substituted “housing affordability” for climate change.

The Wasatch Front Regional Affordable Housing Compact is structured so that participants can build general agreement on recommendations for local governments and others to inform legislation, policy and planning. This occurs through the steering committee – the principal decision-making body of the compact.

The compact’s steering committee consists of the chief officer of each participating entity. Once it reaches regional agreement on policy and products, such as for example an inclusionary zoning model, the relevant authorities in each county or municipality translate this into local action.

The compact works through steering committees. Steering committees bring professional staff and citizen officials together to build general agreements on recommendations about legislation policy and planning. The recommendations seek to inform comprehensive land-use plans, … zoning ordinances, building codes and transportation standards and are implemented through county and municipal decision processes, budgets, local public involvement, enforcement, monitoring and review, and politics.

The coordinated structure means the regional body is able to lobby and achieve outcomes at other levels of government. For example, in 2010 the Florida compact negotiated the creation of Adaptation Action Areas (AAAs) by the Florida Legislature, and in 2015 state statute Chapter 163 was amended to strengthen Florida’s Comprehensive Planning Law around flooding. Also, the Regional Climate Action Plan identifies priority areas for the region to lobby for federal resources, align state and local policy arrangements, and coordinate scientific data and new research. Such actions could be achieved by a housing affordability compact as well.

What’d’ya think? Or will the crisis be over before we could get something like this organized and working? It would certainly take some funding too, for the staffing and administration.  Hmmm….

 

THE BUDGET – PART TWO

December 9, 2021

Okay, part two of taking a look at Governor Cox’s budget recommendations on growth-related topics.

As discussed in an earlier post, we have been approaching statewide issues in Utah with location-specific regional entities like MIDA, Inland Port and so on.  The budget recommends funding for further work by some of these entities:

“Other projects with significant transportation and quality-of-life benefits such as The Point and Inland Port will be key to the economic future of our state. With an initial $141 million investment, The Point will be a transformational attraction that serves as an innovative model for integrating housing, employment, recreation, and services that are linked by highways, transit, and active transportation. The Inland Port will connect rural economies to major ports throughout the nation, attracting capital investment in the modern economy and helping to keep goods moving in, out, and through Utah smoothly.”

Future water resources for growth in our state is a topic that has been rapidly rising on the list of growth concerns of citizens and officials. Here are some of the water recommendations in the proposed budget:

• $200 million for secondary water metering, with an aim to increase water conservation.

  • $1.5 million to help incentivize homeowners to rip out their lawns.
  • $8 million for watershed health.
  • $25 million to rehabilitate Utah Lake.
  • $50 million in federal COVID-19 relief funds, in addition to $20 million already appropriated, for agricultural water conservation efforts.
  • $75 million in federal COVID-19 relief funds, on top of $25 million already appropriated, to bring clean water to Westwater for the first time from nearby Blanding and improve drinking water systems in other small rural communities.
  • $890,000 from water fees to aid local communities in maintaining drinking water standards.
  • $100 million in federal COVID-19 relief funds for a local match program to help local cities and towns fund additional water infrastructure.
  • $500,000 to begin planning and developing future water storage solutions.
  • $4 million for a watershed restoration initiative plus $1.5 million to the Shared Stewardship initiative to improve watershed conditions, increase water yields and reduce wildfires.
  • $1 million for pre-fire mitigation and $2.5 million to restore fire-ravaged landscapes to protect drinking water quality.

In addition, Governor Cox is recommending some specific initiatives for restoration and preservation of Great Salt Lake:

“To ensure responsible future management of the lake and surrounding wetlands, the governor recommends $600,000 in restricted funds to update the Great Salt Lake comprehensive resource management plan. In addition, the governor recommends directing $45 million of the state’s ARPA funds toward Great Salt Lake preser- vation efforts on top of $5 million appropriated in May for a total of $50 million. These efforts will enhance and direct water flows to the lake, restore and preserve wetlands and upland habitat, and integrate the Great Salt Lake into water and land use planning. Similarly, $25 million of the state’s ARPA funds will be used to rehabilitate Utah Lake and improve its water quality.”

And let’s not forget transportation, which is always closely tied to land use and growth issues.  In a story yesterday in the DesNews (https://www.deseret.com/utah/2021/12/8/22824661/the-secrets-out-utah-seeing-remarkable-population-growth-heres-how-much-because-of-migration-census ) on growth in Utah and related budget recommendations, State Planning Coordinator Laura Hanson says about the transportation proposal:

“the budget includes $46.2 million for active transportation investments to combat issues surrounding air quality. These are bicycle facilities, sidewalks and trails so that people don’t have to drive a car if they don’t want to and gets people off the roads,” Hanson added. “We’ve actually had declining emissions over the last many years. It goes to show that when Utah puts our minds on a target … we’re really effective at accomplishing those goals. So, I think air quality is one that will continue to be a focus for us.”

There’s more in the budget as well on issues such as energy and air quality.  Take a look, it’s pretty readable, at https://gopb.utah.gov/wp-content/uploads/2021/12/2021_12_07-Budget-Book.pdf

Now of course, these are all only recommendations that must be considered and approved by the state legislature.  Speaker Brad Wilson recognizes the challenges of the state’s high rate of growth. He also sees a role in bringing local jurisdictions into the mix, as he’s quoted in the DesNews story:

“Although the budget also includes $228 million to address affordable housing and homelessness, Wilson said that the issue is more related to supply and demand.

“We’ve got to do a better job of getting more supply into the market quicker; and we need our municipalities, in particular, to be a little more agile and a little bit quicker in terms of the way they approve projects so that we can fix this — that’s the only solution to get more supply into the market,” Wilson added.”

All this will make for an interesting 2022 state legislative session!

 

NOW THINGS GET DOWN TO BRASS TACKS

December 8, 2021

Governor Cox released his 2022 budget yesterday (at Antelope Island no less, my old stomping grounds!  He chose this location, I’m sure, to emphasis the resources he proposes to direct toward Great Salt Lake restoration and water conservation and infrastructure, which is substantial in the budget).  There are a number of growth and planning-related proposals in his budget.

In one of my earlier posts last month, it was indicated that the new Unified Commission on Economic Opportunity was really becoming the state-level body to discuss growth-related issues.  I mentioned that at their recent meeting, it was talked about that there should be a state-wide discussion about growth issues and ideas to deal with it.  That effort, it was indicated, would be led by Laura Hansen, the State Planning Coordinator.  The just-released budget proposes funding to support this effort:

It is no surprise that housing affordability, air quality, water availability, and infrastructure investments are top of mind for many Utahns. Policies that navigate the state’s rapid growth must be renewed, and the public must have a role in that conversation. Aligned with the work of the Economic Opportunity Commission, Gov. Cox recommends $1 million to fund a data- driven, statewide conversation about growth. This effort will be designed to explore the values residents feel are most important, and evaluate support for policy strategies that the state can undertake to maintain and promote quality of life.

The main, 600-pound gorilla issue that has been rattling around for a couple of years now is affordable housing, as I’ve written about on numerous occasions.  Both the Commission on Housing Affordability and the UCEO have been working on this, as well as individual legislators.  The Governor’s budget proposes the following for housing affordability:

Our middle class is feeling the pressure of a hot real estate market and the rising cost of living. Gov. Cox recommends $50 million to foster the development of more than 1,100 affordable housing units across the state through private activity bonds. Additionally, the governor proposes $50 million for the new construction or rehabilitation of rural workforce housing so all areas of our state can benefit from an accessible, competitive labor pool.

To assist in the management of growth generally, the Governor’s budget proposes several initiatives, including one that Craig Call and I recently discussed with the current State Property Rights Ombudsman, Jordan Cullimore.  This program is intended to help build a cadre of “trained” people who can assist in conducting the required land use administration training that is now required for all planning commission members, as well as for others.

Local governments are struggling to keep up with planning issues such as transportation, housing affordability, and economic opportunity due to rapid growth. Gov. Cox recommends $1.7 million in ongoing funds to assist local governments with planning issues. This additional funding will not create new programs, but rather add $600,000 to the Utah Department of Transportation’s Technical Planning Assistance Grant program and provide the state’s Associations of Government with $1.1 million distributed equally to provide assistance and training to local governments. An additional $250,000 in one-time funds will support the development of a “Train the Trainer” program in the Office of the Property Rights Ombudsman to support dissemination of current land use requirements and best practices.

There’s lots more in the budget on growth and planning, which I’ll get into more in upcoming posts.  You can take a look at the entire proposed budget for yourself here https://gopb.utah.gov/wp-content/uploads/2021/12/2021_12_07-Budget-Book.pdf  Keep in mind, the Governor’s budget is only a recommendation, with the legislature having the final say in what gets enacted.

Stay tuned!

 

IT’S A WHAT?

December 6, 2021

Humans can be a creative lot when they need to be, which is a good thing because that’s how we solve difficult problems!  And right now, affordable housing is a difficult problem.

As I’ve written about previously, one of the approaches that a number of states and cities are taking is to increase the number of housing units being built on the theory of supply-and-demand.  Since many citizens object to increasing density or allowing varied housing types in their neighborhoods, these jurisdictions are mandating that housing allowed cannot be exclusively single-family residential.  Often, it is the semantics of the issue, calling the new development proposals high-density or multi-family that seems to cause the problems.

recent posting in the Urban Land Institute’s Solution File presents a concept called Horizontal Multi Family Detached (HMFD), which essentially is a development at multi-family density levels but built as single-story, detached units.  They are essentially small, closely spaced single-family housing units.  Hmmm.  Calling them thus, can they make inroads in our communities?  Maybe.

We’ve heard lots lately about the “missing middle” and how it should be allowed in many traditional neighborhoods.  This HMFD (I’d call it HSFD to get over the stigma of the tag “multi-family”) concept may be another arrow in the quiver.

Helping citizens to understand and get used to the concept of missing middle or HSFD in traditional neighborhoods may take some work on the part of local officials.  To that end, let me share with you a recent paragraph that has recently been included in the draft general plan update for Kaysville City (full disclosure: I’m on the Planning Commission there).

In a section in the plan title “Character Areas,” the various land use areas identified in the future land use map are more completely defined.  For single-family areas, the plan says this:

“Single Family Residential Character Areas comprise the majority of both existing and future development in Kaysville. These areas consist of established neighborhoods with a range of single-family residential uses, types and forms, and are often auto-oriented in nature. Neighborhood street layouts vary, with older neighborhoods and the historic core marked by traditional street grids and newer neighborhoods utilizing meandering or cul-de-sac road layouts and block patterns.
As Kaysville is largely a family-oriented bedroom community, this character area is consistent with established values that are hoped to be maintained into the future. Larger vacant and undeveloped properties are encouraged to develop as Conservation Subdivisions, which would provide a variety of single-family housing types and forms, and clustering development and open space in a manner the can preserve the small town, pastoral and open feel of the City.”

The point of this language is to allow for a variety of housing types in single-family areas, not just large-lot single-family detached homes, per the concepts discussed above.

It takes all kinds!

 

 

IT’S NEVER REALLY OVER…

December 3, 2021

In my post from a couple of days ago where I quoted The Economist column saying that relaxing planning laws can be politically poisonous, let me expand on that with a recent piece in the Los Angeles Times.  The story shows the various ways that local governments in California are finding to essentially circumvent the recently enacted legislation that mandates that all residential zones throughout the state must allow for housing of up to fourplexes on any property (essentially ending exclusive single-family zoning).

We human beings are an inventive lot, as this story shows.  Here’s a few quotes from the story:

“Under a proposed regulation in the city of Pasadena, for instance, those building under SB 9 may have to plant a “minimum of two mature trees on-site” from the city’s list of native and protected species, a provision that is likely to add costs to the project.”

“…local plans are aiming to limit the size and height of new development, mandate parking spots and require that such housing be rented only to those making moderate or low incomes.”

“…those wanting to split their lot to build more housing must intend to live on the property for at least three years afterward.”

“(Redondo Beach Mayor Bill) Brand, who is promoting a proposed 2022 state constitutional amendment restraining the state’s ability to override local development rules, believes that many cities may pass regulations… testing the limit of what’s allowed.”

In reaction, the primary sponsor of SB9 and of a number of other similar measures said:

“It’s unfortunate that some of these cities are trying to obstruct state law instead of embracing new housing, but that’s the world we’re living in,” said state Sen. Scott Wiener (D-San Francisco).

Politcally poisonous indeed!

You can read the full story here

 

 

‘TIS THE SEASON

December 2, 2021

Things are heating up on the legislative front as we get closer to the January start of the 2022 state legislature general session.  The Land Use Task Force continues to meet, but it sounds like they have still not settled on any specific bill language on the issues they’ve been discussing.

Here’s the current list of pre-filed bill titles that have been submitted for the upcoming session that have to do with land use. There are several others that might relate to land use as well but also may not, we’ll just have to keep an eye on them and see.  As has become more common lately, several of these bill titles portend measures that have not been discussed by the LUTF, and may be surprises. Always makes for interesting sessions!

Urban Farming Amendments 

Food Truck Licensing Amendments

Child Care Center Zoning Amendments

Water Conservation Requirements

Transportation Amendments 

Affordable Housing Amendments 

Commission on Housing Affordability Amendments 

Housing and Transit Reinvestment Zone Amendments 

Resort Communities Affordable Housing Requirements 

Short Term Rental Modifications 

Utah Housing Affordability Amendments 

Mandatory Electronic Plat Recordation 

Municipal and County Land Use and Development Revisions 

Public Infrastructure District Amendments 

High-density Recreational Trail Development 

Landscape Zoning Requirements

 

 

WELL, IT’S COMPLICATED…

December 1, 2021

The Economist has had, over the last year or two, a number of stories about the rapid escalation in housing costs in the U.S., U.K., and other rich countries around the world.  It attributes the problem (correctly, I believe) to a number of factors, one of which is lack of flexibility in local land use regulations.

It all just goes to show that solving the housing affordability issue will not be easy, and certainly not just by focusing on one of the many contributors to the problem.

Case in point, last week’s issue had a story and an opinion piece about whether the increased presence of corporate investors in buying up homes and rental properties is contributing to the crisis.  The basic conclusion is that it is not a major factor, and that it may in fact be spurring more housing production.

The editorial piece, titled Barbarians at the Garden Gate, concludes with this paragraph which I think helps portray the complexity of the issue.  The bolded text are my comments inserted.

“The crux of the problem is a lack of supply in the places where economic opportunities are greatest (that is, the hot economic metro areas, which includes the Wasatch Front).  Some say the answer is higher interest rates or macroprudential tools, such as restrictions on the amounts that banks can lend. These policies would temper demand and price growth, but would not bring the economic benefits of letting successful cities grow (because raising interest rates will affect all economic activity, not just financing for homes). Some favour loan schemes for first-time buyers, but these only inflate house prices—failing both homebuyers and taxpayers (because it would just add more eligible buyers to a market that already suffers from over demand). Straightforward solutions such as relaxing planning laws can be politically poisonous (there’s no question that some local land use regulations limit the ability of the housing market to provide for variety and availability, but pushing forward with the appropriate changes would likely result in electoral massacres of a lot of elected officials, as acknowledged by The Economist editors). Britain seems to have shelved a proposed planning reform that would have encouraged more house-building.”

So what to do?  I guess that’s what’s keeping us all up at night trying to figure it out….

 

MORE ON STATEWIDE GROWTH POLICY

November 30, 2021

So if state officials have been reluctant to approach big-picture growth issues with statewide policies, as I noted in the previous post, does that mean they won’t in the future either?  The much discussed Utah Lake Authority is just the latest example of this tactic.

The big issue in growth talked about for the last few years as been housing affordability, here and in other states (and even in other first world countries). Will our state legislature consider statewide policies and mandates for local officials to abide by?  Something more than advisories and recommendations?  This certainly seems to have been the case in other states, as places like California and Oregon have adopted requirements for local zoning standards, ranging from TOD allowances to prohibition of single-family zoning.

We’ve already started down that path here, as evidenced by requirements for beefed up moderate income housing plans (not just advisory any more, with likely more to come), mandates for accessory dwelling units, and limitations on residential design standards.  Will things go even further in the upcoming legislative session?  It looks very possible.

These statewide mandates are often triggered because local jurisdictions are judged to not be adequately dealing with these affordability issues. Frequently it seems that any such attempts by city and county officials are cut short because of strong NIMBY reactions.  But these same local officials are generally heard to say that these local growth and land use policies are best dealt with at the local level.  I’m not sure that for some of these really tough problems that that is necessarily true. It can be very challenging to deal with self-interested citizens, particularly when the understanding of what the real issues are is so limited. Local officials don’t really have the time, budget, or ability to carry out such “education” and discussion.

Some state officials have suggested that it might be beneficial to have statewide policies put in place to, in effect, “give cover” to local policy makers, providing the justification that the state is requiring it and locals have no choice.  League of Cities leaders have said, however, that locals are not asking for cover.  But that is exactly what I heard one councilmember say in the recent session on this topic at the Utah Land Use Law conference, so…

The bigger question may ultimately be not who should be adopting and implementing these new policies, but has enough consideration gone into them beforehand?  There’s some recent research out there on the effectiveness of statewide growth policies. More on that upcoming in a future post.

 

SMART GROWTH, BIT BY BIT

November 29, 2021

In it’s November meeting, the legislature’s Political Subdivisions Interim Committee discussed a bill that would, if passed, establish a Utah Lake Authority. https://le.utah.gov/MtgMinutes/publicMeetingMinutes.jsp?Com=INTPOL&meetingId=17750

A similar bill was introduced during this year’s general session back in January, but did not advance far because of ongoing discussions about the scope and particulars of the Authority. https://le.utah.gov/~2021/bills/static/HB0364.html

Utah Lake has been the subject of concerns about its state and future status as development has surrounded it.  The lake’s environmental condition has been a big problem. Several years ago the legislature created the Utah Lake Commission, an advisory body to study issues surrounding the lake, make recommendations and coordinate among the various entities touching that body of water.

You may recall a proposal a couple of years ago for creation of islands in the lake for development, the profits from which would allow for rehabilitation of the lake environment, all of which has been rather controversial.  Here’s a good summary of recent lake issues https://www.deseret.com/utah/2021/10/20/22714414/utah-lake-environment-islands-proposal-farming-ranching-utah-legislature-politics-population-growth

The point of my post today is not so much to talk about the specifics of Utah Lake, but to consider how the state deals with land use and growth issues at the statewide (or regional, multi jurisdictional) level.

Back in the 1990s, broad overall growth issues were of concern in states all around the country. A state-level approach that got the term “smart growth” was coined, and took off in places such as Maryland, Florida and Washington state, among several.  In Utah, there was talk about state-level growth policies, but not much appetite for putting them in place, as the sacrosanct nature of leaving growth planning decisions to local communities held primary position.  Utah officials kind of bristled at the idea that if they didn’t adopt statewide “smart growth” policies, that meant their approach was therefore considered “dumb growth?”

But state level topics were eventually brought up and implemented in what was called “Quality Growth”.  Most all of these policies were, however, advisory only.  Was this approach successful?  Well, the state Quality Growth Commission still exists, but they meet very infrequently and usually only deal with allocation of money for open space preservation, when there is any.  Tony Semerad of the Trib wrote a good retrospective of this effort last year, and makes the case for a shift in focus for transportation funding that grew out of this, but beyond that? Well…. https://www.sltrib.com/news/2020/07/11/over-years-ago-utah/

In actuality, it looks to me like we here in the state of Utah take a case-by-case approach to issues of statewide or regional importance.  Like the proposed Utah Lake Authority, we’ve created other entities to deal with such issues, like MIDA (Military Installation Development Authority), the Inland Port Authority, the Point of the Mountain Authority, and so on. These entities are often vested with, among other things, land use powers (the Utah Lake Authority would have that power for all land encompassed by the lake, which would include the potential islands).  This issue was the primary topic explored at this year’s Utah Land Use Law conference https://utahlanduse.org/wp-content/uploads/2021/08/2021Brochure6p12.pdf

Is this a good approach? Could or should this extend to such less location-centered issues like housing affordability?  More on this in future posts.

 

WELCOME TO OUR TOWN – NOT!

November 24, 2021

One of the latest “fronts” in the wars over new and “different” development, is annexations.  Just take a look at recent items that have made the news – Erda http://tooeleonline.com/property-owners-try-to-avoid-future-erda-city/   Providence https://www.hjnews.com/news/government/mixed-density-housing-development-still-dividing-providence-cache-valley-residents-as-election-day-nears/article_d0efcc18-3000-54e7-8ce8-916c8fb8cc86.html   Plain City/West Weber   https://www.standard.net/news/government/2021/feb/05/western-weber-county-incorporation-annexation-pushes-on-hold-but-growth-continues/

and of course the infamous Hideout situation https://www.kpcw.org/local-news/2021-10-26/hideout-dealt-another-legal-blow-annexation-likely-headed-to-appellate-court

There are others as well.  These battles prompted several bill proposals in the last legislative session, and another being discussed currently by the Land Use Task Force (about third party standing in legal challenges to annexations).  Shannon Ellsworth, a good friend and AICP planner who is currently an elected member of the Provo city council, asked that I summarize the various postings I’ve done in the past on this topic, which I will do.  But bottom line is something I’ve been saying and advocating for a while – Utah’s annexation code badly needs a comprehensive recodification. That probably won’t solve all the issues around annexation and opposition to development, but one thing’s for sure, the current code is no help at all.  As pressure grows, and more train wrecks happen, maybe action will finally be prompted.

 

LEARN THE RULES!

November 22, 2021

The new and revised edition of the Utah land use law basics book by Craig Call is now available!  Craig has updated the previous Utah Citizen’s Guide to Land Use Regulation which was widely used as an introduction to the basics of planning and land use for many years.  This newest version, with a new title, is available for anyone interested, just jump on over to Amazon and order.

The ULUI has also recently received a grant from the Office of the Property Rights Ombudsman to provide training in land use regulation to local officials, attorneys and real estate professionals, and this book will be used as the text, so to speak, for these trainings.  These training sessions will be done in conjunction with the Utah League of Cities and Towns and the OPRO staff.  We’ve already scheduled a couple of sessions for interested jurisdictions. If you’re interested, contact us at the ULUI at this email address:  info@utahlanduse.org

 

 

LUTF UPDATE

November 19, 2021

As promised, here’s a quick update on what the Land Use Task Force is working on, from what I’ve gleaned from notes I’ve seen, from conversations, and from reports on the LUTF in League LPC and Commission on Housing Affordability meetings.

For all the frequent meeting and talking that’s been going on by the LUTF, there is really not that much that seems to be moving forward.  The main items seem to be these:

  • HB409 vesting – you may recall that during this year’s legislative session, HB409, among other things, placed a 10-year limit on local governments from requiring any building or design standards on building permit applications more strict than those that were in place on the date of final plat approval. There is proposed language which would clarify these restrictions and remove the 10-year deadline, but essentially the requirement would be left in place.
  • Annexation petitions – during recent annexation kerfluffles, there have been questioned raised about the standing of petitions when annexation petitions conflict with other types of actions filed by third parties, such as incorporation or other actions. Language is apparently forthcoming to deal with some of these issues.
  • Improvement development standards – there has been considerable discussion over the last few years about the variation in design and engineering standards for city improvements that are required for subdivisions and other development. The PRC has expressed a desire to establish uniform improvement standards statewide, but this has been resisted by local governments because of variations in local conditions and preferences.  There appears to be some possibility that this year will see some kind of standardization requirement with possible options for justifiable variations.  This makes me think of Cam Diehl’s recent comment that if a lone or a few cities are doing something different from everybody else, expect legislation to deal with it!
  • Inclusionary zoning – this looked like a policy that might get some traction this year, but it has apparently stalled over the issue of incentives/compensation for developers if they are required to provide affordable housing through IZ. I will note that in the piece I wrote earlier this year, I noted that research shows that most “successful” IZ programs around the country do include incentives for provision of affordable housing.  Not sure this will go anywhere this year.

The LUTF has also talked about the efforts to link housing with economic development programs and incentives, but this seems to be being handled more thoroughly by the Unified Economic Opportunity Commission, which I mentioned in the first post on this blog.

There has also been discussion about administrative issues with how building and development permits are being handled by local jurisdictions, but League staff are working hard to address these issues with the individual communities rather than let them lead to sweeping legislation.  And the housing design restrictions that were passed during the last legislative session have been discussed, but no agreement on what to do seems to have been reached.

 

 

HERE, MIDDLE MIDDLE MIDDLE…

November 17, 2021

A few months ago, Salt Lake County along with several partner organizations brought Dan Parolek, author and instigator of the term “Missing Middle Housing,” to Utah for a seminar on what middle missing housing is and how it works.  It was a great event, well attended, and certainly helped to point out the differences in what the public perceives to be higher density (big, multi-story, poorly designed buildings with no space and lots of traffic and, you know, “those” people) and what neighborhood-scale density can be (and has been in the past). https://slco.org/planning-transportation/regional-solutions/missing-middle-housing/

One of the sponsors was the Utah Foundation, which has taken on research into this issue because of the high concern among citizens, business people, and public officials about the rocketing rise in housing costs over the last few years.  As promised at the seminar, the first part of that Utah Foundation report is now available with excellent background and information.  As to the relationship to the high cost of housing, one of the conclusions from the study says:

  • Middle housing is a possible answer in terms of prices. For instance, in Salt Lake County, the August 2021 median (or middle) sale price of townhomes was $390,000, while for single-family homes, the median sale price was $546,450.

Lots of great source material here for the development of policy about housing in our pretty, great state (that fewer can afford to live in now!).  Take a look at the first part of the study – three more to come!  https://www.utahfoundation.org/reports/middle-housing-study-part-i/

 

 

MODERATE INCOME HOUSING PLANS PROPOSED CHANGES

November 16, 2021

There is so much churn going on right now on legislative proposals for land use related topics, it’s hard for me to sort it out and share it in some reasonable manner.  But I’ll give it a go, in several different posts by topic.

First, let me give enormous credit to the League and their team (Cam, Justin, Karson, Meg and all the local level folks pitching in) for their work on this stuff.  I am stealing blatantly from their materials to give you these updates.

I’ll start with an update on what’s happening with the requirements for Moderate Income Housing Plans (MIHP).  As you know, there were some substantive changes made during the last couple of sessions on MIHPs, giving lists of policy options for communities to choose from, and reporting requirements.  In both cases, there have been issues with how this works in reality.  So, to address these, the League working with local community people and housing advocates is proposing changes which they are calling “MIHP+”.

During the past year, there has been a lot of discussion about what concerns/problems/changes with the MIHP requirements – what’s not working well, what can be done to make addressing housing more effective, etc.  The League has summarized the feedback and input that has been given on this with a list of proposals for the upcoming legislative session.  In essence, there would be more emphasis on actually implementing housing strategies, reporting improvements to demonstrate all kinds of progress, and tying such progress to preference for state and regional funding programs.  You can see the report here.

Still a lot of work to do to finalize these recommendations and actually get a bill prepared, so stay tuned.

Next, I’ll report on proposals discussed by the Land Use Task Force.

SIGN OF THE TIMES – IN U.S. SUPREME COURT

November 15, 2021

Last Wednesday, the U.S. Supreme Court heard oral arguments in the case of our very own Reagan Outdoor Advertising trying to be able to convert their non-conforming billboards to electronic in Austin, Texas.  The court’s eventual decision could have significant implications for the future of how signs are regulated, and even for the business model for billboard companies.

The crux of the matter, in a bit of an oversimplification, is that the city of Austin allows for non-conforming on-premise signs to be converted to electronic, but not non-conforming off-premise signs.  In the ruling by the U.S. Fifth Circuit Court of Appeals, the essential decision was that because of First Amendment protections, signs cannot be treated differently and regulated by their content.  In other words, if you have to read the sign to figure out how to regulate it, you can’t do that.

What intrigued me about the oral arguments and comments before the SCOTUS (Supreme Court Of The United States) was that the attorney for Reagan was not really arguing for that decision.  He essentially was saying all the court had to do was say that it wasn’t fair to treat the signs differently and overrule the Austin code.  I think the reason for him not arguing much in favor of the 5th circuit ruling was that if it is upheld, it has the potential to seriously alter the business model for all billboard companies.  Think about it – if, as the 5th circuit said, you cannot regulate signs by their content, then any sign could have off-premise advertising, not just those so defined.  The monopoly of billboard companies for such advertising would essentially be gone.

To that end, I just recently saw a couple of on-premise electronic signs in a local community that were not only advertising their own business, but also flashed up messages for another business in town – off-premise advertising!  Not allowed by the local code!  But very easy to do with electronic signs.  And if the SCOTUS upholds the 5th circuit rationale, well….

How will the court rule?  Based on the questions and comments from the justices during the oral arguments, Amy Howe of SCOTUSblog

wrote, “the Supreme Court was closely divided on this question. Although some justices appeared to agree with the 5th Circuit, other justices were clearly concerned that upholding the 5th Circuit’s decision could have repercussions far beyond the ordinance that they were considering.

“Justice Brett Kavanaugh could hold the deciding vote, and he too appeared conflicted. On the one hand, he (like Gorsuch) asked Snyder why the city couldn’t address its safety and aesthetic concerns by restricting the placement, size, and number of signs, rather than restricting “anything that has to do, arguably, with the words that are written on the sign.” On the other hand, he emphasized … that these kinds of ordinances “have been around for a long time,” and that a ruling for Reagan National would impose significant burdens on “a lot of local jurisdictions around America.”

Here’s Howe’s entire entry about the court session.

https://www.scotusblog.com/2021/11/from-barbecue-restaurants-to-highway-beautification-justices-mull-implications-of-sign-ordinance-case/

A decision is not expected until probably spring or even summer.  It could cause local and state codes and ordinances to have to be completely redefined for billboards and off-premise advertising!

WHO’S ON FIRST?

Greetings!  Looks like I’m at it again, trying to get a regular on-line commentary going on what’s happening in the rapidly changing world of community planning and land use regulation in our fair state of Utah (oops, I mean pretty, great state!).  I’ve been urged on by my colleagues at the Utah Land Use Institute to do so again as a way to provide another way for all those who may have an interest in land use to keep in touch with what’s happening, and provide a place for that information to have another outlet.  So here we go!

What I want to write about in this first posting for this new blog is all the attention that is being paid again to growth and planning in Utah, mainly as a result of our rapid growth (fastest in the nation over the last 10 years!)  Such a pace usually focuses attention on what’s changing and happening in our communities because of this rapid growth, with a recent poll showing that a majority of Utahns thinking that we are growing too fast!

All this worry is being put on steroids by what’s happening with housing and affordability, causing everyone from local communities, chambers of commerce, and state officials and elected leaders to weigh in on what can be done about this.

In the past, when we’ve had such high levels of attention focused on growth, there have been groups and bodies that have taken the lead, like the Quality Growth Commission back in the 90’s, Envision Utah, the Land Use Task Force, and more recently, the Housing Gap Coalition and the Commission on Housing Affordability.

There is a body that has recently been created that really seems to be taking a more “holisitic” view of the growth issues, and has the involvement of high-level leadership from all corners – the Unified Economic Opportunity Commission.  Placed under the care of the Governor’s Office of Economic Opportunity, it would seen to be primarily focused on traditional economic development strategies and activities.  While it still does play that role, the Commission members, which include the Governor, Legislative leadership, state cabinet members, and local government leadership, have seemed to recognize the impact business growth and recruitment has on other growth-related issues.  If there is any body at the state level that now seems to be taking a more careful look at growth and how to plan for it, it seems to be this one.  The recognition of this role has even led to a proposal for the upcoming legislative session to move the Commission on Housing Affordability from being housed in the Department of Workforce Services to the GOEO.

To make my case, have a listen to the latest meeting of the UEOC.  I think you’ll agree that, with it’s heavy hitter membership, this may be the place for future discussions about state-level growth planning policies may get some legs.

 

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