We’re Fortunate, Actually!

March 19, 2023 by Nicole Masson
Policy/Legislative

March 15, 2023

By, Wilf Sommerkorn

Thought I’d give a few more examples of what’s happening in some state legislatures around the country on land use issues, partly to demonstrate how we are part of the zoning reform “wave,” but also to show that maybe we’re doing it a little better than other places.  The big thing that stands out to me is how much of what is going on in other places is pretty much a “top-down” approach – that is, the state is telling locals what they have to do and how to do it.  Here, while there has been some of that, it’s been much more of a state-local collaboration (I’m guessing Summit County and Park City might not agree with that – ☹).  Cam Diehl, the Utah League Executive Director, has said he’s getting calls from municipal league directors in other states asking how Utah has been able to get the collaborative effort from the legislature.  So it could be worse (and maybe it will get worse in future, heaven knows there are certainly plenty of proposals out there to do here what is happening in other states.)

Let me give a few examples.

In Washington state last week,

The Washington state House of Representatives … passed a bill that would legalize duplexes or fourplexes in almost every neighborhood of every city in Washington, potentially bringing an end to local zoning rules that limit large swaths of cities to only single-family homes. House Bill 1110 passed overwhelmingly on a bipartisan 75-21 vote.

The bill was amended on the House floor … (to) require cities with populations between 25,000 and 75,000 to allow duplexes in all residential areas. In bigger cities (those with more than 75,000 people) — or smaller suburbs of Seattle — all residential areas would have to allow fourplexes.

The proposal met resistance from local governments, who argued they should be able to set local zoning rules without state mandates. Some said they had already worked to upzone certain parts of their cities.

Supporters of the bill argued local control had failed to respond to the state’s housing crisis, in which few homes are for sale and prices are climbing.

In Connecticut, a bill would require communities to make an assessment of their affordable housing status, much like Utah communities are required to do, but then the state would stipulate for each community a “regional fair-share” number that must be achieved in order to avoid penalties.

Failure to submit a plan would result in default state zoning replacing a town’s local zoning authority. Any housing nonprofit or developer could sue a town for failing to submit or for a plan that did not create a “realistic opportunity.”

Frank DeFelice, chair of the Regional Planning Commission for the Lower Connecticut River Valley Council of Governments, which represents 17 of Connecticut’s municipalities, told the committee … “First, no definition has been provided for the term ‘realistic opportunity.’ Without a definition, even municipalities that have made the creation of affordable, attainable and workforce housing a priority can expect to engage in protracted and expensive litigation with interested parties.”

Second, he said, if the amount of housing stipulated by the bill is not constructed by the private sector – which the municipality has little control over – an actionable cause is created.

“Municipalities can be sued and forced to build housing at the expense of their taxpayers, most of whom are already housing burdened. It is unfair for the legislature to expose Connecticut’s municipalities to litigation for conditions over which they have no control,” he said.

WestCOG Executive Director Francis Pickering strongly opposed the controversial Fair Share bill, HB 6633. “The bill will force municipalities to pay for construction of housing that developers will not build on their own. Fair Share does not provide new revenue, so these costs will come on the backs of local taxpayers. A vote for Fair Share is a vote to raise property taxes,” Pickering said. He said a municipality that does not zone for the Fair Share Plan will be subject to default zoning.

In Rhode Island,

House Speaker Joe Shekarchi this week unveiled a legislative package he argues would help bolster much-needed housing development across the state without circumventing local control over zoning and planning.

The suite of legislative proposals includes several changes to how the development approval process currently works. The proposals include accelerating hearing procedures, standardizing permitting across all cities and towns, allowing owners of old mill buildings and hospitals to create housing by right and bypassing a middle-step in the appeal process.

“Nothing in this package forces communities to build more affordable housing and none of this legislation circumvents local decision-making authority,” Shekarchi told reporters during a briefing on the legislative package.

Shekarchi’s attempt to walk a line between sounding the alarm about the urgent need for more housing with the fears of local leaders about losing control reflects in part the fact he has already received pushback from some communities even before revealing his proposals.

Rhode Island League of Cities and Towns executive director Ernie Almonte rose during Shekarchi’s press conference and said municipal leaders agreed “conceptually” with the ideas being unveiled. But Almonte stopped short of fully endorsing the bills.

“While we have not had the opportunity to review the details of the bills presented today, our members encourage housing construction and rehabilitation, and removing barriers to housing, such as a lack of infrastructure,” Almonte said in a statement. “We look forward to continuing to work with the Speaker and members of the General Assembly to address additional details.”

This is just a sampling of what’s going on around the country.  After reading about all this, I’m thinking we’ve got it pretty good here (relatively!)  I think credit for our good fortune goes to how well the Land Use Task Force has gotten to working again (though it’s still not perfect), the back-and-forth that has taken place in meetings of the Commission on Housing Affordability and the Unified Economic Opportunity Commission, and the strenuous efforts of Cam Diehl and his co-conspirators and staff at the Utah League.  As I’ve noted in some past blog postings, states in which the top-down approach dominates, the ultimate achievement of the goals of affordability and community resilience just don’t seem to happen because the implementers (the local governing bodies) become footdraggers (see California, Oregon, a few others).

Apparently that message got through in a state where legislatively-mandated local zoning was on the table.  In the previous blog post, I cited Arizona as an example.  In a vote in the Arizona State Senate Monday, SB1117 failed to pass by a 9-20 vote.

Many cities publicly opposed SB 1117 because they believed the legislation would have taken away their ability to make important zoning decisions. Critics of the bill further argued that it offered no guarantees for making housing units more affordable to the average resident. Kaiser, a Republican representing District 2, said Monday he’ll continue working on finding solutions to fix the housing crisis.

Just as a reminder, there are several sessions coming up to run through what happened on land use in Utah’s legislative session this year.

April 5 – APA Utah/Utah League, North Salt Lake  https://www.ulct.org/events/spring-training

April 7 – Utah Land Use Institute, St. George  https://www.eventbrite.com/e/utah-land-use-institute-spring-conference-tickets-548001305657

May 12 – APA Utah, Vernal https://apautah.org/events/apa-utah-spring-2023-conference/

And because of the volume and detail of land use bills in the session this year (35 bills introduced, 19 passed), I did not follow other planning-related legislation like transportation and water infrastructure as closely, but the gang at WFRC did and they have an excellent summary of those measures, see it here https://docs.google.com/document/d/1IZ0daUr5CT02aCUX952TczBmyxRxW43Jas8049WHC-4/edit