I. WHAT IS LAND USE LAW

Although limited land use regulation existed in the United States before the mid-1920's, it gained a measure of legitimacy during that period because of the issuance and near universal adoption of the Standard State Zoning Enabling Act,⁽¹⁾ and the decision of the United States Supreme Court in Village of Euclid v. Ambler Realty Co.⁽²⁾

By 1925, 19 states had used the act in drafting state zoning enabling statutes. In 1926, the United States Department of Commerce issued a revised edition of the Standard Act, and by 1930 it was reported that the act had been adopted as a whole or in part by 35 state legislatures.

Utah was not immune to the popular tide created by the Standard Act and in 1925 adopted its first enabling act for cities, which was nearly identical to the Standard Act. The first enabling act for counties was not adopted until 1941. The language of this first zoning enabling act for counties was substantially different from the Standard Act.

The second event contributing to the legitimacy of zoning was the decision of the United States Supreme Court in Village of Euclid v. Ambler Realty Co.⁽³⁾ Prior to Euclid, the constitutionality of zoning had been suspect, but in that decision the Supreme Court affirmed that zoning was, in general, a proper exercise of government's police power and not an unconstitutional taking of private property.

A. The Police Power

In addition to the state enabling laws found in Title 10, Chapter 9 of the Utah Code for Municipalities and Title 17, Chapter 27 for Counties, a local legislative body may adopt and amend a zoning ordinance,⁽⁴⁾ including both text and map. Exercise of the power to zone is an exercise of police power. The Utah Supreme Court held in Marshall v. Salt Lake City⁽⁵⁾ that it was the police power that enabled a municipal legislative body to divide a city into zoning districts and regulate uses therein. That holding was reiterated in Western Land Equities, Inc. v. City of Logan,⁽⁶⁾ in which the Utah Supreme Court again stated that "[i]t is established that an owner of property holds it subject to zoning ordinances enacted pursuant to a state's police power."

The legislative body "may divide the territory over which [the city or county] has jurisdiction into zoning districts." Within those districts "the legislative body may regulate and restrict the erection, construction, reconstruction, alteration, repair, or use of buildings and structures, and the use of land." Within each district "the regulations . . . [must be] uniform for each class or kind of buildings . . . [,] but the regulations in one district may differ from those in other districts."⁽⁷⁾

In Hargraves v. Young,⁽⁸⁾ it was held that the power to adopt regulations within zoning districts includes the power to designate sideyard and setback requirements. By statute, the zoning regulations may "protect and ensure access to sunlight for solar energy devices"⁽⁹⁾ and must include regulations permitting residential facilities for elderly and handicapped persons. With respect to different uses in zoning districts, Phi Kappa Iota Fraternity v. Salt Lake City⁽¹⁰⁾ held that the power of the legislative body to designate uses within zoning districts includes the power to differentiate and regulate different residential uses.

In addition, the Utah Supreme Court held in Buhler v. Stone⁽¹¹⁾ that regulations in a zoning ordinance may include "reasonable measures to minimize discordant, unsightly and offensive surroundings; and to preserve the beauty as well as the usefulness of the environment."⁽¹²⁾ Moreover, ordinance language requiring the elimination of "unsightly or deleterious objects" or "junk [and] scrap metal"⁽¹³⁾ is not unconstitutionally vague. In relation to vagueness, the court adopted a very broad view:

Concerning the charge of vagueness, it should be realized that legislation must necessarily be in somewhat general terms because it is obviously impossible to describe in detail every act and circumstance a statute or ordinance is intended to deal with. It is but sensible and practical that courts should take into consideration the difficulties involved in describing such conditions with the last degree of precision of language. The pertinent parts of the ordinance should not be viewed in isolation for the purpose of finding fault with them and declaring it unconstitutional; they should be viewed in light of the total context and purpose; and an enactment should not be declared void for vagueness unless it is so deficient that it is susceptible of no reasonable construction which would make it operable.⁽¹⁴⁾

B. Overview of Utah Land Use Law

The traditional standard of the health, safety, and general welfare of the public is the measure of the police power by which local governments divide their territory into districts and regulate therein.⁽¹⁵⁾ Although conceptually, a zoning regulation is unenforceable if there is not a sufficient nexus between it and the health, safety, and general welfare of community residents,⁽¹⁶⁾ the Utah Supreme Court has been explicitly reluctant to invalidate a zoning regulation for this reason. This reluctance was first illustrated in Marshall in which the Utah Supreme Court signaled the lengths it would go to defend local zoning regulations from claims that no nexus exists.⁽¹⁷⁾

In Marshall, the zoning ordinance permitted "utility" business uses on intersection corners in residential districts. Acknowledging that the enabling statute required that territory should be divided into districts and not regulated by single lots or groups of lots,⁽¹⁸⁾ the Utah Supreme Court nevertheless upheld the corner uses.⁽¹⁹⁾ The basis for the holding was that the classification was part of a comprehensive plan designed to promote the general welfare, and the court would not second guess the city "[u]nless the action of [the governing body of the city] is arbitrary, discriminatory or unreasonable, or clearly offends some provision of the constitution or statute."⁽²⁰⁾

The skeletal framework for land use regulation by municipalities and counties is found in the respective enabling acts. The "Municipal Land Use Development and Management Act" is found in Chapter 9 of Title 10 of the Utah Code. The "County Land Use Development and Management Act" is found in Chapter 27 of Title 17. Both the municipal and county Acts are relatively new and have been in effect for only four years.

The Acts are very similar. This is a result of a concerted effort toward uniformity. The Acts provide a framework. The individual municipality and county are given specific power to adopt detailed ordinance to provide necessary detail. A review of the Acts is recommended.

C. Roles of Different Bodies

1. City Council/County Commission

The City Council or County Commission are the legislative bodies in their respective jurisdictions. As such they may adopt ordinances under the enabling acts. See Utah Code Ann., § 10-9-401 and § 17-27-401. They are also the only bodies who can adopt and amend zoning maps, Utah Code Ann. § 10-9-402-3, 17-27-402-3, and adopt general plans, Utah Code Ann. § 10-9-306, 17-27-303. They also appoint Planning Commission and Board of Adjustment members.

A case of interest is Salt Lake County v. Sandy City, 879 P.2d 1379 (Utah App. 1994), where the appeal of a Conditional Use Permit to the Sandy City Council was challenged. The Court of Appeals held that in a council-mayor optional form of government the constitutional doctrine of separation of powers prevents the City Council, a legislative body, from hearing an administrative appeal from the Planning Commission. The Court reasoned that the Board of Adjustment, an administrative appellate board, was the proper body for the appeal.

2. Planning Commission

The creation of a planning commission is left to the discretion of the county or municipality. See Utah Code Ann. §§ 17-27-201, 10-9-201. In practice, most, if not all Utah counties, and municipalities have enacted ordinances establishing a planning commission. In a county, a planning commission consists of seven members appointed by the county commission. A member of a county planning commission serves for three years and may continue thereafter until a successor is appointed and qualified. Utah Code Ann. § 17-27-201. Municipalities are allowed to set the number of Planning Commission members. Utah Code Ann. § 10-9-201. A minimum term for a member of a municipal planning commission is not specified in the Municipal Act but must be set in the ordinance establishing the planning commission. Utah Code Ann. § 10-9-201. In addition to setting the length of a planning commissioner's term, some zoning ordinances limit the number of terms that a planning commissioner may serve. See, e.g., Salt Lake City Zoning Ordinance, §51-29-2(b)(1). The chairman of the planning commission is elected from its membership, Utah Code Ann. §§17-27-202, 10-9-202, and, in a county, serves a one-year term. Utah Code Ann. § 17-27-202. Additionally, the planning commission may adopt policies and procedures for the conduct of its meetings, the processing of applications and for other purposes necessary to fulfill its responsibilities. Utah Code Ann. §§ 17-27-202(2), 10-9-202(2).

The planning commission serves a variety of functions in county and municipal government. These functions include at least the following:

1. Preparation and recommendation of a comprehensive general plan and any amendments thereto;

2. Recommending zoning ordinances, maps and amendments to the same;

3. Where specifically provided in a zoning ordinance, the administration of the zoning ordinance;

4. Recommending subdivision regulations and amendments;

5. Recommending approval or denial of subdivision applications; and

6. Hearing, deciding, or providing advice on matters that are designated by the legislative body (including conditional use permits).

See Utah Code Ann. §§ 17-27-204, 10-9-204.

In performing its functions, the planning commission is authorized to obtain access to and use data and information held by the State or any State agency. Utah Code Ann. §§ 17-27-203, 10-9-203. Once a request has been made, the State or State agency must provide the information without additional cost to the planning commission. A planning commission may also enter upon any land at reasonable times to make examinations and surveys. See Utah Code Ann. §§ 17-27-205, 10-9-205. In making recommendations, the planning commission acts as a quasi-judicial body providing recommendations to the legislative body who alone has the power to implement them.

3. General Plan

Both the County Act and the Municipal Act designate the planning commission as the body responsible for the preparation and recommendation to the legislative body of a comprehensive general plan." See Utah Code Ann. §§ 17-27-302, 10-9-302. The comprehensive general plan sets forth the general guidelines for proposed future development of the land within the territorial limits of the county or municipality, see Utah Code Ann. §§ 17-27-301(1), 10-9-301(1), including a general plan for the present and future needs of the community and the growth and development of land within and outside the community. See Utah Code Ann. §§ 17-27-302, 10-9-302. The adoption of a general plan is a legislative act. Garland v. Salt Lake County, 11 Utah 2d 307, 310, 358 P.2d 633, 635 (1961) and will not be set aside by a court unless the decision is "arbitrary, capricious or illegal." See Utah Code Ann. §§ 17-27-100(3), 10-9-1001(3). See also Dowse v. Salt Lake City Corp., 123 Utah 107, 255 P.2d 723, 724 (1953); Walton V. Tracy Loan & Trust Co., 97 Utah 249, 253, 92 P.2d 724, 726 (1939) (the exercise of the zoning power is definitely a legislative function and activity"). The adoption of a comprehensive general plan does not itself constitute the regulation of property and has withstood constitutional challenge. See e.g., Marshall v. Salt Lake City, 105 Utah 111, 141 P.2d 704, 708-709 (1943). If the general plan is not a comprehensive plan, however, it does not meet the requirements of the statute and will be invalidated. Id. at 708. Because the adoption of a general plan is a legislative act, it is subject to referendum.⁽²¹⁾ See Utah Code Ann. § 20-11-24(2) (master plans and comprehensive zoning ordinances are subject to referendum); Wilson v. Manning, 657 P.2d 251, 253 (Utah 1982) ("the enactment of zoning laws and ordinances is the exercise of legislative function . . . subject to referendum").⁽²²⁾

A general plan typically includes a land use element (designating proposed distribution and location of uses, population density and building intensity), transportation and circulation, environmental (including protection, conservation, development and use of natural resources and reclamation, prevention and control of adverse impacts to the environment), public services and facilities, rehabilitation, redevelopment and conservation, economic development, and recommendations for implementing the plan. See Utah Code Ann. §§ 12-27-302, 20-9-302.

After the adoption of a general plan by the legislative body, the general plan becomes an advisory guide for land use decisions. See id. §§ 17-27-303(6), 10-9-302(6). Thus, unless local ordinance makes compliance mandatory, the fact that a development proposal does not comply with the general plan is not fatal to approval of the project although it could be used as evidence of an arbitrary or capricious action. See generally Robert M. Anderson, American Law of Zoning 3d, § 5.07 (1986). If so designated by the legislative body, however, the general plan is a mandatory condition that must be satisfied in any land use or zoning decision, and the failure to meet general plan requirements would thereafter be sufficient grounds for denial. See id. §§ 17-27-303(6)(b), 10-9-303(6)(b). Even in the absence of such a designation, however, unless the legislative body approves an amendment to the general plan, the provisions of the general plan must be met in all cases involving public streets, parks, grounds, places and utilities, and publicly owned buildings and structures. Similarly, any abandonment, vacation, change, acquisition or disposal of any such public places or facilities must first be submitted to the planning commission for its review and recommendation and the general plan must be amended if approval is given. See id. §§ 17-27-305, 10-9-305.

4. Subdivision Regulation

Utah has recently consolidated its law governing subdivisions. Utah Code Ann. § 57-5-1 to 8 was repealed. State law regarding subdivision of land is found in the Municipal Land Use Development Act, beginning at Utah Code Ann. § 10-9-801 and the County Land Use Development Act beginning at Utah Code Ann. § 17-27-801. These statutes are part of the wide-sweeping amendment of Utah Planning and Zoning enabling law which became effective July 1, 1992.

5. Recent Developments

There are several recent appellate court decisions of merit. In Brendle v. City of Draper, 937 P.2d 1044 (Utah App. 1997), the City Council lacked jurisdiction over an appeal of a planning commission decision to permit lot owners to build house when the appeal was not filed within the 14-day appeal period set forth in the relevant ordinance.

In Wells v. Bd. of Adjust. of Salt Lake City, 936 P.2d 1102 (Utah App. 1997), approval of variance without making statutorily required findings was held to be illegal.

Recently, in Brown v. Sandy City Bd. of Adjustment., 957 P.2d 207 (Utah App. 1998) cert denied by 982 P.2d 88 (Utah 1998), the Court of Appeals reversed the District Court and the Sandy City Board of Adjustment's holding that a municipality could impose requirements that rental of 1.single family dwellings be 30 days or less without a specific ordinance.

In another recent case involving Sandy City, Smith Inv. Co. v. Sandy City, 958 P.2d 245, (Utah App. 1998), a downzoning that decreases but does not take all value was held not a taking.

A citizen group brought an action challenging a land use decision approving a Planned Unit Development ("PUD") by the City of Springville. (Springville Citizens v. City of Springville, 365 Adv. Rep. 23 (March 19, 1999) The Utah Supreme Court reversed the trial court which had granted summary judgment for the City on the basis that substantial compliance by the City with is own ordinances in approving the PUD was sufficient. The Supreme Court held that a municipality must comply with mandatory provisions of its own ordinance, substantial compliance is not sufficient. However, those challenging the City's compliance must demonstrate how the noncompliance prejudiced them or led to a different result. The matter was remanded to the trial court to determine the effect of non-compliance by the City with its own ordinances.

Following the Springville Citizens opinion, there have been several Court of Appeals decisions which have addressed the arbitrary and capricious standard of review of land use decisions. In Harmon City, Inc. v. Draper City, 997 P.2d 321 (Utah App. 2000), the Court of Appeals distinguished Harmon City from Springville Citizens in concluding that there are two standards of review under the arbitrary and capricious banner. For adjudicative/administrative matters such as Board of Adjustment decisions, the land use decision must be supported by substantial evidence. On the other hand, for legislative matters such as rezoning of property, the decision need only be reasonably debatable that it is in the interest of the general welfare.

Judge Jackson wrote a lengthy dissent, arguing that the substantial evidence should apply to review of all land use decisions under the arbitrary and capricious standard.

Following Harmon City, the Court of Appeals applied the substantial evidence standard in reversing the denial of a conditional use permit in Wadsworth Construction v. West Jordan City, Other recent decisions of interest include Gardner v. Perry City. 994 P.2d 811 (Utah App. 2000), which discussed the ability of the City Council to separately consider portions of a zone change recommended by the Planning Commission; Peterson v. South Salt Lake City, 987 P.2d 57 (Utah 1999), holding the reasonable point to measure the distance between sexually-oriented businesses was building to building rather than lot-line to lot-line, and Hugoe v. Woods Cross City, 988 P.2d 456 (Utah App. 1999), holding that strict construction is applied in favor of the land owner as zoning is a derogation of common law property rights, and that property was used as a "transfer company" use by storage and parking of cars after the business office was elsewhere.

On the federal level, the most important recent development is the United States Supreme Court's decision in City of Monterey v. Del Monte Dunes AT Monterey, Ltd., 1999 WL 32079. In its decision, the Supreme Court affirmed that land use decisions must be reasonably related to a legitimate public purpose. The Court rejected extension of the rough proportionality test used for exactions to land use decisions generally. Finally, the Court clarified the role of juries in land use claims brought under 42 USC § 1983.

1. In 1924, the United States Department of Commerce published a model land-use enabling act entitled the Standard State Zoning Enabling Act (Standard Act).

2. 272 U.S. 365 (1926).

3. Id.

4. Utah Code Ann. §§ 10-9-401 to 403 (1999), 17-27-401 to 403 (1999).

5. 141 P.2d 704 (Utah 1943).

6. 617 P.2d 388 (Utah 1980).

7. Utah Code Ann. §§ 10-9-405(2), 17-27-405(2).

8. 280 P.2d 974 (Utah 1955).

9. Utah Code Ann. § 10-9-901 (1999).

10. 212 P.2d 177 (Utah 1949).

11. 533 P.2d 292 (Utah 1975).

12. Id. at 294.

13. Id. at 293.

14. Id. at 294.

15. Utah Code Ann. §§ 10-9-102 (1999), 17-27-102 (1999).

16. See, e.g., Gibbons & Reed Co. v. North Salt Lake City, 431 P.2d 559 (Utah 1967).

17. Marshall v. Salt Lake City, 141 P.2d 704, 711 (Utah 1943).

18. Id. at 708.

19. Id. at 711.

20. Id. at 709.

21. Once a referendum petition against a county ordinance meets the requirements of the statute, the ordinance subject to the referendum is "null and void" until voted on favorably by qualified voters. See Utah Code Ann. § 20-11-24. Zoning ordinances, while subject to referendum, cannot be enacted by initiative. See Dowey v. Doxey-Layton Realty Co., 3 Utah 1, 277 P.2d 805 (1954).

22. Wilson v. Manning also held that an amendment to zoning ordinance is an act "implementing the comprehensive and adjusting it to current conditions" and therefore an administrative not a legislative decision. Wilson, 657 P.2d at 253. An amendment to a zoning ordinance is a legislative act only if the change is so fundamental or pervasive as to "in effect [constitute] the making of a new law." Wilson, 657 P.2d at 254 (quoting Bird v. Sorenson, 16 Utah 2d 1, 394 P.2d 808 (1964)). In Citizens Awareness Now v. Marakis, 873 P.2d 1117 (Utah 1994), the Utah Supreme Court set forth a three-part test to determine if a zoning decision is subject to referendum. See, e.g. Johnson v. City of Mount Vernon, 37 Wash. App. 214, 679 P.2d 405 (1984) (City's failure to enter written findings of fact and conclusions of law was arbitrary and capricious).

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