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1 Ogden City Council Work Session: August 1, 2017 PROPOSED AMENDMENT TO CLARIFY HOW ALLOWABLE LAND USES ARE DETERMINED IN THE ZONING CODE Purpose of Work Session: To review the proposed text amendment Planning CommissionRecommendation Approval the amendment (6-0) Executive Summary During the 2017 Utah Legislative session, HB232 was passed. This bill was meant to provide clarification on several areas of land use law: clarifying the land use approval process with regard to the legislative, administrative, and quasi-judicial roles of various city bodies; clarifying that a land use authority must apply the “plain language” of land use regulations; and a clarification that municipal codes must not conflict with provisions of state or federal law. The proposed amendment to the City’s zoning ordinance deals primarily with the second item mentioned. The proposed amendment clarifies that if a use is not specifically listed in the City’s zoning ordinance, it is therefore not an allowed use. Further, the proposed amendment clarifies that if a use is listed in a particular zone that does not mean that the use is an allowed use in another zone if the use is not specifically listed in that zone as well. Finally, the proposed amendment provides a review procedure to determine if a proposed land use should be an allowable if that use is not currently listed in the zoning ordinance. Background HB232 During the 2017 Legislative Session, House Bill 232 was introduced and passed. This bill took effect in May of this year. The bill primarily dealt with three areas of land use law in the state. First, the bill was meant to clarify which actions are being done in what capacity by a city with respect to a land use decision. The language clarified what a land use regulation is and establishes that only a legislative body may enact a land use regulation. Further, the bill establishes that a land use decision, as defined in state code, is an administrative act, even if the land use authority is the legislative body. Further, the bill establishes that an ---PAGE BREAK--- 2 Ogden City Council Work Session: August 1, 2017 appeal authority’s land use decision is considered a quasi-judicial act, even if the appeal authority is the legislative body. The second part of the bill is meant to clarify that the “plain language” of a land use regulation must be applied and that if the land use regulation does not plainly restrict a land use the land use authority must interpret and apply the land use regulation to favor the land use applicant. The language of the bill adds a new section to the state code specifying this standard of review. The third part of the bill provides clarification that a municipality’s land use regulation may be stricter or may impose a higher standard than the state code but cannot conflict with state or federal law. Land Use Regulations The language is HB232, particularly with regard to applying the plain language of a land use regulation, is meant to clarify for land use applicants which land uses are allowed and which are not in a clear and understandable manner. If, as the state law indicates, the land use regulation is not clear, the land use authority, whether that is the Zoning Administrator, Planning Commission, or someone else, must interpret the land use regulation in favor of the land use applicant. In short, if the City’s code is unclear on whether a use is allowed or prohibited, the ruling must go in favor of the applicant and not the City. In the vast majority of municipal zoning ordinances, allowable land uses are listed, further defined if needed, and then associated with the various zones in a city. These uses can be permitted or conditional uses and can have added regulations attached to them or be more straight- forward. The general structure of these zoning ordinances, or land use regulations as defined by the state code, is that each zone has a list of allowable uses that may be approved in that zone. It has commonly been understood that if a use is not specifically listed then that use is not allowed in that zone. New or less defined uses that are requested with land use applications have typically been denied because the use is not specifically listed in a zoning ordinance, or the use’s definition is vague. Legal challenges, and frustration from land use applicants, have led to a change in the way cities think of how these ordinances should be written. ---PAGE BREAK--- 3 Ogden City Council Work Session: August 1, 2017 The language is HB232 states that if a land use regulation does not specifically restrict a land use application, defined as an application needed to obtain a land use decision, then the land use authority shall interpret and apply the land use regulation to favor the land use applicant. The language can seem to suggest that a city’s zoning ordinance should list all of the prohibited uses instead of all of the permitted uses. This, of course, is not possible. Listing all of the uses that are not permitted would make any zoning ordinance unworkable and would not take into account new uses that are not yet clearly defined. However, cities can and should be looking at their zoning ordinances to better define many of the uses that may be vague or open to a broader interpretation than intended. Ogden City’s Approach The proposed ordinance amendments address the issues raised with HB232 by providing clear statements about how land uses are defined and to which zones they apply. Further, the proposed amendments to the City’s zoning ordinance would allow the Planning Manager to review a use that is not listed and determine if the proposed use is similar enough to an existing use in the zoning ordinance that it should be approved in the same manner as the existing use. Current Proposal The current proposal is to add language to the City’s zoning code in section 15-1-11, Violations of Use Regulations and Site Development Standards. The proposed addition includes the following: A statement clarifying that if a land use is not listed under the allowed uses in a zone, that land use is not permitted in that zone even if the use is listed in another zone. Language that would allow for the review and determination of a use not listed. As proposed, the Planning Manager would be able to review and determine if a land use not currently listed in the zoning code is similar to a land use, or uses, that is listed in the zoning code. In determining if the land use is appropriate, the Planning Manager would determine: o If the use is consistent with the general plan, the applicable neighborhood plan, and the zoning district purposes; ---PAGE BREAK--- 4 Ogden City Council Work Session: August 1, 2017 o The proposed use has substantially similar impacts as a listed use; and o The proposed use has substantially the same characteristics as a listed use. Language stating that if the Planning Manager determines the use is similar to another use, the unlisted use will be treated in the same manner as the listed use. Language stating that if the unlisted use is determined not to be similar to a listed use, a formal zone text amendment adding the use to the zoning ordinance would be needed to approve the use. A statement asserting that the proposed changes meets the intent of the state law changes. Planning Commission The Planning Commission reviewed the amendments at the June 7, 2017 meeting and forwarded a recommendation of approval to the Council with a 6-0 vote. The recommendation was made with the findings that the amendment is consistent with state law and with the intent of the established land use regulations, and that the revision provides clarity on how the review of individual land use types is determined. Public Comments No comments were offered during the Commission’s June 7, 2017 meeting. Questions for Administrative Staff 1. Part of the reason HB232 was passed was to eliminate vague and unclear language in zoning codes when a land use decision is made, e.g. “keeping in character with the neighborhood,” “shall not substantially increase traffic, odor, light, etc…,” “other similar uses.” How much of this kind of language is still in the City’s code and how would the proposed amendment address this? 2. Does the proposed language adequately deal with land uses that are listed but that may be more broadly defined than intended? ---PAGE BREAK--- 5 Ogden City Council Work Session: August 1, 2017 3. Can a determination of the Planning Manager be appealed by the land use applicant? To which body would that appeal be made if it can be appealed? Attachments 1. Transmittal 2. Ordinance 3. Planning Commission Report Council Staff Contact: Glenn Symes, AICP (801) 629-8164 ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK---