Groaning & Bemoaning Rezoning?

It’s okay to be against proposed land use or zoning changes. The city council can deny them. But they need to be convinced it’s more in the public interest to deny a proposed change than approve it. So, it is important to present good reasons for turning down the request.

Unfortunately, I have seen too many residents put in a lot of effort to provide excellent, well-reasoned comments at public hearings, but they missed the mark. So, here’s a way to think about proposed land use and zoning changes.

First, it’s important to look beyond the current zoning for the property. The “Zoning Districts Map” shows what is currently allowed on every property in the city. But, more importantly, the “Land Use Map” shows what the city anticipates as the ultimate use for the property. It’s the city’s vision and it is part of the General Plan.

Here are two examples. There was going to be a public hearing for them, but the applicant, Kayenta Development, took them off the agenda, at least for now. But they are still worth looking at as case studies to understand zoning issues better because they involve rezoning requests that completely fit, or mostly fit, the land use envisioned for the properties.

Example 1: A 98-acre parcel is zoned RA-5 (minimum 5-acre lots) and the applicant was asking for it to be zoned RE-37 (minimum 37,000 sq.ft. lots). The Land Use Map shows that the vision for the property is LDR, meaning low density residential. That use allows lots as small as 15,000 square feet.

Example 2: The applicant was also asking for a land use change on just over 31 acres from LDR (Low Density Residential) and HDR (High Density Residential) to RC (Resort Commercial) and then a zone change from RA-5 (5-acre lots) and RE-15 (15,000 sq.ft. lots) to RC. Most of this site already has a land use of “Commercial Resort” and that land use already allows RC. Only a small portion is LDR and HDR.

Okay, now let’s consider each of these potential issues: Density/upzoning, water availability, loss of open space and agricultural land, our city’s vision, vision changes, and court decisions.

Is Example 1 Upzoning?

I see a lot of references to this type of zoning change as “upzoning,” meaning increasing density. Well, on the surface changing the zoning from 5-acre lots to 37,000 square foot lots certainly looks like upzoning. In fact, dramatic upzoning, potentially creating nearly six times the housing density! But it isn’t upzoning.

Upzoning is an urban planning term for changing zoning to allow additional capacity for development that was not part of the city’s vision in its land use plan. The city’s vision for this land, shown on the Land Use Map, is “Low Density Residential.” That allows lots as small as 15,000 square feet. So, the proposed use is actually less dense than the land use would allow.

That makes this request “rezoning” not “upzoning.” In urban planning, rezoning is where the zoning change adheres to the land use anticipated in the city’s land use plan.

It sounds like I’m being nit-picky but I’m not. Using the wrong term misrepresents what is actually happening. We lose credibility arguing that this example is upzoning. That taints any other arguments we might make.

Is Example 2 Upzoning?

The requested zoning change is not increasing the anticipated density/intensity on most of the site, but it is increasing density on the LDR portion and at least intensity on the HDR portion. So, you can make the argument that this is “upzoning.” But only minimally since most of the land use on this site already allows RC.

Not Enough Water

We can’t say the proposed zoning should be denied because we have a water shortage. The state requires us to document that we have a water shortage and a plan to fix the problem within six months.

We get almost all our water from the Washington County Water Conservancy District, and they have not declared a water shortage. They are the source of our water, so they have to first declare a water shortage. They haven’t. I think that’s only because they are using the wrong model. See the article, “Is Our Glass Half Full?”

That doesn’t mean we shouldn’t bring up water issues at public meetings. We need to keep the issue front and center, hoping (maybe optimistically) elected officials in the county and throughout the state will finally get the message.

Water is our most vital “infrastructure.” And we’re dependent on others to ensure we have enough. But we have other infrastructure that we are in control of, like roads. So, it’s important to look at all of our infrastructure to see if it can handle a proposed rezone adequately, or will we need to make changes that might create negative impacts.

Losing Open Space

On other zoning issues I’ve heard residents argue that because a proposed zoning change takes away open space or agricultural land it goes against the vision in our General Plan which values those. That’s true. Our General Plan is very clear about the importance of both. Plus, last fall’s General Plan Resident Survey shows that 70% of respondents are in favor of preserving agricultural land and almost 80% value open space. So that seems like a valid point.

Download Part 1 of 2: General Plan Resident Survey Report
Download Part 2 of 2: General Plan Resident Survey Participant Comments

But when we’re talking about private property, one of the only ways to preserve agricultural land and open space is to buy the land or at least buy the development rights or create conservation easements. It all costs money. And it all needs a willing seller. Many cities have done that through voter approved bond levies that cost taxpayers money. Good luck with that. “No more taxes” was a common comment in the General Plan Resident Survey.

Or, instead of the burden being entirely on the taxpayers, there are non-profits like the Nature Conservancy and other land trusts that could get involved. It would be great if a community group would look for this type of support. But you still need a willing seller. If a landowner wants to develop their land, they have that right.

Another option is to require some open space in the new development. But to do that without it being viewed as a “taking” by the courts, which is a big no-no, the city needs to give something to the developer in return. Most likely higher density. And that won’t necessarily work for all developers or sites. And a significant majority of respondents in the General Plan Resident Survey did not want higher density housing.

Has Our Vision Changed?

The Land Use Map represents our vision for the city. Generally, I believe land use should not be changed one property at a time. If it looks like a different land use may be appropriate, then we should take a fresh look at the General Plan and all the land uses in the city.

The point of the land use map is to identify how much of each land use is desirable and where. Changing a land use in one spot tips the balance. It results in more of one type of land use and less of another. Not quite the vision. So, has the vision changed?

Example 1 still seems to fit our vision for the city, since almost 80% of the respondents to the General Plan Resident Survey preferred low-density single-family development to any other use.

In Example 2, there are a lot of uses a developer can build in the RC zone, including resorts, hotels, and short-term rentals. Has the vision changed? Last fall’s General Plan Resident Survey suggests it has: Over 75% of the respondents do not want any more “tourist accommodations” of any type and over 80% don’t want more short-term rentals.

If the zone is changed to RC, then whoever owns the land will have the right to build tourist accommodations because that’s what our current City Code allows.

The Land Use Map also shows the vision included both low and high density residential for a portion of the property. Maybe it did and maybe it didn’t really. Areas designated various land uses are approximate because they are not tied directly to individual parcels of property, unlike the zones on the zoning map which are specific to individual parcels. So, this example creates a question: Does changing everything to RC fit the vision or not?

And we need to ask two more questions: First, would denying a zoning change to RC be fair to the property owner who may have been planning to develop tourist accommodations on this site for many years? Second, how much of a role should fairness play in any decision, and why?

What Courts Say

Land use and zoning changes are legislative decisions. Requests to change land use or zoning can be denied by city councils even if the request fits the city’s land use map. Here’s an example from an excellent book, “Ground Rules: Your Handbook to Utah Land Use Regulation” published by the Utah Land Use Institute.

Harmon’s applied to build a store in Draper. The site was zoned residential, but the city’s land use map showed the vision for the site was commercial. The city council denied the rezoning because they concluded the use was not compatible with nearby neighborhoods, even though the commercial land use allowed a grocery store.

Harmon’s took the matter to District Court, lost, and then appealed to the Utah Court of Appeals and lost again. The court said that Harmon’s burden was not to show that the city council had no reason to deny their application, rather the burden was on Harmon’s to show that the city’s decision to preserve the status quo could not promote the general welfare.

The court also stated that the “public clamor” that occurred at the hearing could be appropriately cited as a factor in the council’s decision, even though the comments by residents were not based on specific facts or substantial evidence. A legislative decision is valid if it is reasonably debatable that the action could promote the general welfare of the community.

Keep It Simple

According to the Handbook, “The issues in all legislative decisions are similar. The question is, what is desirable? … Simply stated, zoning decisions are based on compatibility.”

You may wish things were different, but the Handbook also says, “Influencing legislative decisions can be frustrating. The city council need not explain their votes, need not provide any evidence to support their decisions…”

But don’t despair. It also says this, “The better option is to appeal to the decision-makers’ sense of what is fair, what is reasonable, and what is in the common interest.”