Sunday, January 29, 2006

To: Wasatch County Council

From: Robert Wren, member Planning Commission 27 January 2006

Minority Report in opposition to proposed legislation

Last week the Planning Commission, by a vote of 6-1, recommended that the County Council adopt the Planning Department’s "Option 3" (of 8 or so), modified to 25 acres to "solve" the problems of open space and growth.

The avowed purpose of "Zoning" is to protect the health, safety and welfare of the community. A group of citizens has called for an interim zone change to RA-5, (possibly with a Planned Performance Development which will reduce - not increase - potential housing construction), while a deliberate study is done to review, and update, the General Plan of 2001 (a five-year review is one of the goals of that plan) and present a considered, thoughtful solution to the potential growth potential and to attempt to retain what the residents have expressed a continuing desire for - a rural, small town with open space.

This proposed amendment to Title 16 (Land Use Code) does nothing to slow growth of development - it may actually increase the number of houses that can potentially be built in the unincorporated County.

Much in the wording of the overall proposal is excellent. The description of "Rural Landscape Character" was generally well conceived. The proposal of how to protect open space through various ownership and easement arrangement is well done. However, the devil is in the details.

What’s wrong with Option 3, and basically the whole array of proposed options? At one point in time not too long ago, Wasatch County required 200 ft. frontage on a county road for a building lot, and that land parcels could be only "subdivided" once.
  1. This new proposal will apparently allow anyone with a lot of two acres or more to subdivide further. I will readily admit that, although I have studied the two-inch thick Title 16 and the one inch General plan, there may be some proviso that may limit this.
  2. Under the proposal, "property less than 25 acres" . . . with sewer, will allow one Dwelling Unit per acre, on lots as small as 1/3 acre. (About 100 feet by 140 feet) (Variable lot sizes, with no more than 25% of each size.) For example, six lots at 1/3 acre, six at 2/3, 6 at ½ , and seven at 1 acre on a 25 acre parcel. This is defined as a "Standard Subdivision."
  3. If the total parcel size is greater than 25 acres, a developer may, by leaving 50% in open space, build one unit per "buildable acre" on lots as small as the 1/3 acre. So, with 100 acres, 75 houses (not 100) may be built (because of the "buildable acre" concept)
  4. The Planning Commission voted to retain the "Transition Zone" - the potential "annexation" areas around the incorporated municipalities (It had been proposed to delete it). This provides a "bonus" of 25% more houses, by meeting certain criteria.
    It doesn’t take too much analysis to figure out that by dividing a piece of land into parcels of less than 25 acres it would be possible to build MORE houses AND proclaim that open space is being preserved, merely by putting houses on smaller lots.
    Further subdivision of your current home’s lot At the PC meeting, a list was presented of the various lot sizes currently in the RA 1 zone. It was indicated that there were 335 lots of 5 -10 acres, and it was explained that some currently have homes on the lot. The impression given was that a lot, with a home, on say - 10 acres, under this proposal, could be further subdivided as noted in #2 above. For example, a home on 10 acres (335 of them, ‘many’ with houses) could carve out a 2 acre parcel for the current owner’s house and build eight more homes on the remaining property (10 more if within the TROZ)
    Is this the intent? Will it be the result? I sincerely hope that this interpretation is incorrect, but I see little in the law to preclude this. This is part of the reason to slow down and think about this whole proposed change. Find out what the County residents truly desire for our valley; and determine what is best for the health, safety and welfare of the community, as a whole, and not mainly for the benefit of a relatively small group of land holders.

If this is correct and this proposal does provide more "development rights," than the current RA-1 zone, it will become even more difficult to change it at a later date, because it could cause even more claims of reducing the value of the land. It is not really the function of the Government to "maximize" property values. It is the function of government to protect the rights of ALL individuals AND the health safety and welfare of the community in general.
At some point in our future, growth will become limited; is it fair to all concerned to allow more density to the current developments and face the possibility of decreasing it for later developments when the limiting factors are encountered? Do we really know what the practical limit of the number of houses that can be sustained in our "rural, small town environment?" Do we even know what the total number of houses that can be built under these many various proposals, or the current regulations? Wouldn’t it be more logical and fairer to determine that practical "maximum" and allocate ERU’s on that basis, similar to what was attempted at Jordanelle?

Administrative vs. Legislative Acts There are two types of land use actions. Basically, with an Administrative Act (e.g. Standard Subdivision) there is little discretion in approving a subdivision. If the law allows it - must be approved. I believe the "less the 25 acre" proposal will fall into this category.
A Legislative Act (e.g. Planned Unit or Performance Development - PUD) allows the county a little more discretion in approving developments. Particular criteria must be met for approval, which generally will be considered "reasonably debatable to further the general welfare," in a possible court case. A PUD will allow more input into developments and allow the discretion afforded under Legislative Acts, if that is what is desired. See for a further explanation of this concept.

Otherwise why not just eliminate zoning, and let the ‘market’ work? The answer, of course, is that we DO have zoning and with it certain expectations that the zoning has created. If a house on a rural piece of land in a low density zone is purchased, it should be a rational expectation that the surrounding area will be kept rural and low density.

Growth Rate: It’s certain that corrections will be forthcoming for any errors expressed here, as they were for the idea that Wasatch was growing at 15% annual growth. While Wasatch is one the fastest growing counties in the nation, that should have been a 15% growth in three years, or 4-5 % annually. In actuality, the rate of growth is not all that relevant, but the potential for growth IS. This faux pas also serves as an excellent example of why it is desirable to study, consider and deliberate, before making these very important decisions. I do not proclaim to have all of the knowledge or all the answers, I do have questions and I do have a concern for the direction we are heading - Wasatch City!!!

Litigation: At the PC meeting a few comments were made about avoiding litigation. That’s an excellent idea. Most Land Use litigation seems to stem from a perceived loss of land "values." However there is case law stipulating that local government has great discretion in Land Use Law. e.g. "If an ordinance could promote the general welfare; or even if it is reasonably debatable that it is in the interest of general welfare, we will uphold it." "The selection of one method of solving the problem in preference to another is entirely within the discretion of the city and does not, in and of itself, evidence of abuse of discretion. See Bradley v Payson, 2001 UT App 9 aff’d 2003 UT 16; Harmon City v. City of Draper, 2000 UT App 31 "In the context of rezoning, it is not sufficient that a plaintiff demonstrates economic loss caused by the rezoning, as long as he or she retains some reasonable use of the subject property there is not a constitutional "taking." Harmon City, Inc. v. Draper City, 2000UT App 31

History: The last major Land Use case in Wasatch County, resulted from the apparent passage of a law providing a 2 ERU per acre development. That law, or provision in the law, was apparently not well discussed and deliberated and was of questionable origin. The cost to the County was high, I hope we don’t repeat the error.

General Plan Update: The Plan calls for periodic review (at least every five years). As pointed out in the Moratorium Ordinance (05-11) we now have "unprecedented growth pressure in the form of multiple large scale subdivisions applications and corresponding loss of agricultural use, open space and rural atmosphere"; and "zoning regulations in the RA-1 zone are currently inadequate to protect this valuable asset (rural atmosphere, open space and agricultural feel)."

The Plan was established as a "mandatory guide for land use decisions . . . " and the proposed regulation may be in conflict with the goal expressed of "preserving the rural character of the county," "reduc(ing) the haphazard scattering of development," "protect the social and economic well-being of the people," and other goals listed in the Plan.

An example: On "Lake Creek Road, 1200 South and 1200 East . . . new access from driveways shall not be allowed." But the proposed under 25 acre developments on 1/3 ac will allow a plentitude of ‘streets’ providing access from small subdivisions. Wouldn’t a driveway from a five or ten acre home site be better for all concerned than a street for 5 to 10 houses?

Proposed State Legislation: With the introduction of SB170, it becomes even more critical to get this right. If SB170 should be passed it would severely restrict local Land Use Planning. While they are seem to be trying to limit local land use planning by "prohibit(ing) counties and municipalities from imposing stricter land use requirements or higher land use standards than required under statute"; line18-19 , which basically means "health, safety and welfare." It must be recognized that the financial 'welfare' of the entire community must be considered as a factor in planning and development approval. Negative fiscal impacts must be a factor, otherwise the property rights of existing property owners are not being protected - because they will be required to pay for the impact of the development.

SB 170 will also directly affect any possible future changes to zoning, as any change might be construed as "materially diminish(ing) the reasonable investment-backed expectations of the property's owner; " which would effectively not be allowed. SB 170 gives further a further reason to adopt a general RA-5 zone and then work on an appropriate Planned Performance Development.

I urge developing and adopting a vision for future growth accompanied with a review of the General Plan, for changes to be submitted in November to bring Wasatch County in the direction of those visionary goals. We should further develop the current statistics to determine the effect of various Land Use proposals on the developable land in the County and enable the development fiscal analysis program to provide the best possible information for rational decision making, to meet the goal of preserving the "County’s fiscal health" and helping to insure that "each development should also be require to pay its own freight." (General Plan 132-3)

Bob Wren

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