SB60 Local LUDMA Amendments

SB60 – Local LUDMA Amendments: 

SB60 – Local LUDMA Amendments A Primer on the Effect of SB60 on the Practice of Local Planning and Land Use Regulation

Utah APAUtah Local Government Trust: 

Utah APA Utah Local Government Trust Presented by Ralph Becker Neil Lindberg Wilf Sommerkorn April 6, 2005

Introduction & Context: 

Introduction & Context SB60 is a 192 page bill, but it isn’t really that big of a change Utah Land Use Law P&Z Enabling Acts – 1930’s LUDMA – 1992 Quality Growth Act – 1999 LUDMA Update (SB60) - 2005

Introduction & Context: 

Introduction & Context SB60 is not a fundamental change in Utah land use law and does not set a new direction for planning and land use in Utah There is no new planning direction or requirement relating to growth management

What SB60 Does: 

What SB60 Does Incorporates existing case law into statute – definitions, appeals, separation of powers Attempts to create efficiencies for administrative land use decisions Incorporates some best practices Transfers nomenclature from “zoning” to “land use” to reflect broader land use applications and is more of an enabling statute Creates more flexibility in administrative appeals process – e.g., Board of Adjustment changes

What We’ll Be Covering: 

What We’ll Be Covering Ralph – overview and notice provisions Wilf – planning, land use regulation changes and processes Neil – development agreements, case law codification, nonconforming changes, appeals process

General Provisions: 

General Provisions Scope of land use authority unchanged Adds clear authority for restrictive covenants, easements, and development agreements Incorporates purpose statements found previously found elsewhere

General Provisions: 

General Provisions Consolidates existing definitions now found elsewhere, e.g.: “constitutional taking” “affected entity” “specified public utility” New definitions, e.g.: “appeal authority” “culinary water authority” “land use authority” “land use ordinance”

General Provisions: 

General Provisions Distinguishes sometimes confusing terms “nonconforming use” and “noncomplying structure” “public hearing” and “public meeting”

Notice: 

Notice Uniform notice requirements for various actions Local ordinance may define stricter notice requirements Requires local government to notify applicants of time, place, date of all meetings or hearings held to consider the application If local ordinance requires third party notification, must mail or post notice as specified by local ordinance

NoticeGeneral Plans: 

Notice General Plans In 1st and 2nd class counties, 10 days notice of intent to prepare plan or amendment; mailed or emailed to “affected entities,” AGR, AOG, and state planning coordinator 10 days notice before first public hearing considering plan or amendment, published in newspaper, mailed to each affected entity, and posted in 3 public places or on website 24 hours notice of each public meeting discussing plan or amendment, posted in 3 public places or on website and submitted to newspaper

NoticeLand Use Ordinances: 

Notice Land Use Ordinances 10 days notice of first public hearing to adopt or amend; post in 3 public places or on website; and publish in newspaper or mail to each property owner affected and adjacent owners, specified by local ordinance 24 hours notice of each public meeting discussing adoption or amendment, posted in 3 public places or on website

NoticeSubdivision Plat or Amendment: 

Notice Subdivision Plat or Amendment Must have a public hearing to consider approving or amending a subdivision plat 3 days notice of public hearing, mailed to all owners within distance specified by local ordinance, or by posting on property If subdivision is for multi-unit residential, commercial, or industrial, must also mail notice to each affected entity

NoticeVacate, Alter or Amend Platted Street: 

Notice Vacate, Alter or Amend Platted Street Publish notice of public hearing in newspaper once a week for 4 consecutive weeks, or if no newspaper, post in 3 public places for 4 weeks Mail to all owners within distance specified by local ordinance 3 days prior to public hearing, or post on property

NoticeChallenge of Proper Notice: 

Notice Challenge of Proper Notice Any challenge of notice must be taken within 30 days of the meeting or action, otherwise notice is considered adequate and proper

Planning Commission: 

Planning Commission Each municipality shall enact an ordinance establishing a planning commission Counties already had this requirement PC may have alternate members

Planning Commission: 

Planning Commission Makes recommendations to the governing body for: General plan and amendments Land use ordinances and amendments (including zoning map) Official map Amendments to subdivision plats

Planning Commission: 

Planning Commission Makes recommendations to the governing body regarding: Delegation of power to at least one land use authority to hear and act on land use applications Delegation of power to at least one appeal authority to hear and act on an appeal from a decision of the land use authority Application processes that may designate routine land use applications that are uncontested for streamlined review and action

Planning Commission: 

Planning Commission Streamlined process must: Protect the right of applicant and third parties to require formal consideration by a land use authority Protect applicant’s, adversely affected party’s, or municipal officer’s right to appeal decision “protect the right of each participant to be heard in each public hearing on a contested application”

General PlanElements: 

General Plan Elements General plan elements must include Land use Transportation & traffic circulation Moderate income housing (all except towns) All other elements optional

General PlanAdoption: 

General Plan Adoption Planning Commission required to hold public hearing on general plan and any amendments Governing body NOT required to hold public hearing prior to adoption

General Plan: 

General Plan General plan is “an advisory guide for land use decisions” Counties section indicates that an ordinance may be adopted requiring compliance with the general plan Authorizing or constructing public streets, parks, places, buildings, structures, utilities, must be in conformance with general plan – planning commission ability to consider something else has been removed

General PlanOfficial Maps: 

General Plan Official Maps Can use an official map to recommend that applicants consider proposed street location Cannot use it to require street dedication and construction unless it meets the standards for an exaction

Land Use Ordinances: 

Land Use Ordinances Term “zoning ordinance” no longer used – but “zoning map” is Public hearing to adopt or amend ordinance or map required by planning commission, but not by governing body Any amendment to amend ordinance or map must first receive PC “recommendation”

Land Use OrdinancesTemporary Zoning Regulations: 

Land Use Ordinances Temporary Zoning Regulations Governing body may adopt a temporary land use regulation without receiving prior recommendation from PC Provision to adopt temporary regulation without a public hearing struck, but does not mean governing body must hold public hearing

Land Use OrdinancesSpot Zoning: 

Land Use Ordinances Spot Zoning “There is no minimum area or diversity of ownership requirement for a zone designation; neither size of a zoning district nor the number of landowners within a district may be used as evidence of the illegality of a zoning district…” This means spot zoning is no longer illegal (at least statutorily) Local zoning still must have a rational basis or may be struck down by courts

Land Use OrdinancesAnnexed Areas: 

Land Use Ordinances Annexed Areas Zoning of newly annexed areas, if not designated by governing body at annexation, must be “compatible with surrounding uses”

Land Use OrdinancesConditional Uses: 

Land Use Ordinances Conditional Uses Conditional use requirements amended to reflect court rulings Standards for conditions must be set forth in the local ordinance If standards can be met by applicant, approval must be given Other conditions not specified in ordinance cannot be imposed

Land Use OrdinancesExactions: 

Land Use Ordinances Exactions Adds exaction rule that reflects court rulings Exactions allowed only if: “An essential link exists between a legitimate governmental interest and each exaction, and Each exaction is roughly proportionate ... to the impact of the proposed development”

Land Use OrdinancesVested Rights: 

Land Use Ordinances Vested Rights Adds vested right rule that reflects court rulings “A land use application is entitled to approval…if the application conforms to the requirements of an…ordinance in effect when a complete application is submitted…” “Unless the land use authority…finds that a compelling, countervailing public interest would be jeopardized by approving the application”

Land Use OrdinancesVested Rights: 

Land Use Ordinances Vested Rights “or…the municipality has formally initiated proceedings to amend its ordinances in a manner that would prohibit approval” (pending ordinance doctrine) 180 day limit on “pending” ordinances Coordinated with same limitation on “temporary zoning regulations” Reasonable diligence required to maintain vested right status Governments must comply with land use ordinance requirements

Land Use OrdinancesRezonings: 

Land Use Ordinances Rezonings Caution - rezoning applications Local ordinances should include language indicating that rezoning applications are discretionary legislative decisions Even if a rezoning application otherwise conforms to ordinance requirements

Land Use OrdinancesNonconformities: 

Land Use Ordinances Nonconformities Distinguishes “nonconforming use” and “noncomplying structure” Clarifies right to continue a NU and NS runs with the land Cannot prohibit reconstruction of a NU or NS destroyed involuntarily Should increase financing and marketability of NC uses and NC structures

Land Use OrdinancesNonconformities: 

Land Use Ordinances Nonconformities Allows termination as the result of neglect or abandonment “Abandonment” procedure specified Property owner has the burden of proof Local ordinance may establish “uniform presumption of legal existence” Amortization rule is unchanged

Land Use OrdinancesSpecial Exceptions: 

Land Use Ordinances Special Exceptions Eliminates special exception provisions A local ordinance still may include special exception provisions Sections 10-9a-102 and 17-27a-102 authorize local governments to enact all rules they consider necessary for land use control

Land Use OrdinancesBillboards: 

Land Use Ordinances Billboards Creates two new sections for billboards Language the same as the previous code Adds, under SB114, that only an owner may replace or rebuild a nonconforming billboard

Land Use OrdinancesUnchanged Provisions: 

Land Use Ordinances Unchanged Provisions Amateur radio antenna regulation Building permit fee limits Manufactured homes Residential facilities for elderly Residential facilities for persons with disabilities HB94 failed (would have prohibited certain juvenile justice facilities in single family residential zones)

Subdivisions: 

Subdivisions If local government fails to enact ordinances governing subdivisions of land, may only regulate to the extent provided in state code Notice section now indicates that before approving any subdivision of land, a public hearing must be held

Subdivisions: 

Subdivisions Subdivisions must have plat drawn by surveyor (unless meets exemptions) Subdivision plats must be approved by “culinary water authority” and “sanitary sewer authority” before local government can grant subdivision approval Surveyor certification limited to survey items Governing body not required to approve subdivision plats – approval given by land use authority and by other officers designated by ordinance

Subdivisions: 

Subdivisions Vacating or amending a plat requires a public hearing and recommendation by planning commission, before land use authority can act on vacation or amendment

Appeals & Variances: 

Appeals & Variances Appeals and variances distinguished No change in standards for granting a variance Must have at least one “appeal authority” Boards of Adjustment may remain as existing May create “appeal authorities” for distinct types of appeals

Appeals & Variances Appeal Authority Standards: 

Appeals & Variances Appeal Authority Standards An appeal authority is the final arbiter in interpreting and applying land use ordinances No authority to review legislative decisions Quasi-judicial procedure applies Specific procedures defined by local ordinance

Appeals & Variances Appeal Authority Standards: 

Appeals & Variances Appeal Authority Standards Due process rights must be respected The same people may not act on a matter as both the approving authority and appeal authority

Appeals & Variances Appeal Procedure: 

Appeals & Variances Appeal Procedure Before going to court an adversely affected person must: Exhaust administrative remedies “Timely” and “specifically” appeal to the appeal authority as provided by ordinance A local ordinance may allow specified types of decisions to be appealed directly to court If required by ordinance, present every theory of appeal that could be raised in court

Appeals & Variances Appeal Procedure: 

Appeals & Variances Appeal Procedure A reasonable time to appeal must be set by ordinance 10 days if no ordinance exists An adversely affected person can only allege the land use authority erred in administering or applying the ordinance Appellant has burden of proof Cannot require an adversely affected person to pursue multiple appeals

Appeals & Variances Local Standard of Review: 

Appeals & Variances Local Standard of Review The standard of review may be set by ordinance If none, for “factual matters” the standards is “de novo” Must determine the “correctness” of a decision

Appeals & Variances Decision Rules: 

Appeals & Variances Decision Rules A decision takes effect when a written decision is rendered Unless otherwise provided by ordinance This constitutes a “final” decision that may be appealed to court Must be done within 30 days

Appeals & Variances Judicial Standard of Review: 

Appeals & Variances Judicial Standard of Review A court: Must presume a land use decision is valid Can only decide whether a decision is “arbitrary, capricious, or illegal” Codifies common law distinction between legislative, administrative and quasi-judicial decisions

Appeals & Variances Judicial Standard of Review: 

Appeals & Variances Judicial Standard of Review “Illegal” means a violation of law in effect when a decision is made Meaning of “arbitrary and capricious” depends on type of proceeding

Appeals & Variances Judicial Standard of Review: 

Appeals & Variances Judicial Standard of Review Legislative decision Valid if “reasonably debatable” and not “illegal” Administrative or quasi-judicial decision Valid if supported by “substantial evidence” and not “illegal”

What You Should Do: 

What You Should Do Designate land use authority by ordinance Designate appeal authority by ordinance Review, modify notice provisions to at least meet minimums Review, modify appeals process to at least meet minimums Review general plan for 3 required elements

What You Should Do: 

What You Should Do Review, modify (if needed) exactions If you allow for special exceptions, modify ordinance to specify terms under which they can be granted Modify nonconforming section, allow for reconstruction of involuntarily destroyed or damaged nonconforming, noncomplying uses Review, modify (if needed) conditional use section, standards for specific uses

What You Should Do: 

What You Should Do Require all subdivisions to submit plats (limited exceptions) Require public hearing in subdivision review process Modify (if needed) to require approval by water, sewer authorities

What You May Do: 

What You May Do Streamline process for land use applications Stricter requirements for notice Take governing body out of subdivision approval process Stricter appeal standards

What You May Do: 

What You May Do Streamline process for land use applications Stricter requirements for notice Take governing body out of subdivision approval process Stricter appeal standards

2005 Legislative Bills: 

2005 Legislative Bills HB36 – Charter School Construction Amendments Charter schools have same exemptions as public schools “permitted use…in all zoning districts” “shall be processed on a first priority basis…subject only to setback, height, bulk and massing regulations…” Local governments can do walk-thru inspections of public and charter schools, make recommendations Must notify prior to purchase of property, hold meeting to discuss concerns and fees

2005 Legislative Bills: 

2005 Legislative Bills HB103 – Student Housing Built by Higher Education Institutions Must notify local government of intent to build student housing within 300 feet of private residential development Local government has 21 days to request a meeting

2005 Legislative Bills: 

2005 Legislative Bills HB73 – Local Referendum Requirements HB274 – Referendum Procedure Indirect efforts to make zoning decisions more subject to referendum

2005 Legislative Bills: 

2005 Legislative Bills HB126 – Amendments to Facilities with Regional Impact Require consideration of issues for regional facilities