Counties, cities, and towns are creatures of the state; the state created them and gave them authority over multiple local issues. Although the state can preempt local decision making when statewide issues are at stake, land use decisions are historically local; legislative “home rule” is the general rule in Utah.[1] Nonetheless, tensions between state and local authority are not unusual; nor is asking the courts to establish which level of government has the superior authority in a given situation.
Housing is an issue in which the balance between levels of government has been changing. In the face of affordable housing shortages across both urban and rural areas of the state, some local governments like Salt Lake City have taken their own steps to increase such housing,[2] but others have not. The State has steadily exerted more pressure in recent years by upping requirements for the “moderate income housing” section of municipal and county general plans. Local governments must now include steps they plan to take from a menu of state options and report implementation timelines and progress, with penalties for non-compliance.[3] Governor Cox recently used strong language in telling municipalities to overcome their NIMBY perspectives and also encouraging developers to be willing to forego some of their profit from building luxury homes and subdivisions.[4] The threat of more state intervention was lurking.
Ironically, the state also has restricted certain local government efforts to pursue affordable housing more aggressively on their own. Municipalities are forbidden from enacting rent control or requiring developers to include affordable housing units in a land-use application—tools used in some other states.[5]
In other instances, the state also seems to go further in intervening to override local zoning and land-use regulations in what appears to be favoritism for some developer or business that wants to do what a community disapproves. The Summit County example looks like political favoritism after heavy lobbying from a specific developer.[6] The two Moab examples required much negotiation and compromise in Moab’s attempts to provide more affordable housing for workers in the tourist industry and for noise limits on ATVs.[7] In the collapse of two Draper homes, it appears that poor advice from the state’s Property Ombudsman Office may have been responsible, at least in part. Here is a situation where a different state role could have been appropriate. The head of the Utah Geological Survey suggested that if the state adopted a model geologic hazard ordinance for localities to follow, it could be helpful in preventing developers from building homes on hazardous terrain.[8]
In another example of restrictions placed on cities and towns, the mayor of Ivins, previously a developer, complained that the Legislature had a pro-developer mindset and was interfering with municipal regulations restricting the exterior look of its desert landscape town.[9] In this case, the line between appropriate local autonomy and lowering barriers to build housing may be in the eye of the beholder.
The Utah League of Cities and Towns [ULCT] is accustomed to negotiating with the Utah Legislature over many regulatory issues and seeks collaboration as a preferred method of conflict resolution. On September 8, 2023, it adopted Resolution 2023-002 to stress the importance of preserving local authority.[10] It included the following:
- The federal government and the State of Utah should respect and uphold the principles of local self-governance, refrain from unwarranted preemption actions, and engage in collaborative and constructive partnerships with local governments.
- The ULCT encourages federal and state policymakers and community and civic leaders to recognize and advocate for the preservation and enhancement of local authority, fostering an environment where local governments can thrive and effectively serve their communities.
- The ULCT fundamentally opposes mandates that unnecessarily create unelected boards, commissions, authorities, or any type of entity that preempts local governments by giving authority to unelected boards/commissions by removing that authority from local elected officials.
- The ULCT fundamentally opposes mandates that remove revenue from local governments or transfer that revenue to a board, commission, or authority that is not comprised of local officials.
- The ULCT fundamentally opposes mandates that eliminate land use and zoning authority from municipalities.
The upcoming 2024 legislative proposal to create “infrastructure financial districts” is seen as a way to overcome municipal reluctance to bond or tax residents for new subdivision infrastructure. The municipality would instead allow the IFD to do the bonding. What is potentially troubling about this bill to increase housing is the quasi-municipal authority given to the developers themselves to access the tax-free bond market. When all the lots are sold and the bond completely paid, then responsibility for maintenance and operation of the infrastructure would revert to the municipality.[11]
Although beyond the scope of this policy brief, UCC is aware that significant issues about unelected boards have arisen in recent years, among them legislative management of the 5-member voting board of the Utah Inland Port Authority and its satellite hubs; the now defunct Utah Lake Authority to manage Utah Lake restoration, including a real-estate scheme to dredge and then build an island for residential development; and a 2024 proposal for legislative takeover of governance of Rocky Mountain Power’s Intermountain Power Plant (IPP) in Delta. i.e., a proposed takeover of the board to continue to allow coal to be used to generate electric power.[12] Issues have also arisen over prohibition of municipal gun controls and the extent of state constraints on county public health measures.
The right balance between state and local authority is difficult to achieve and bears constant watching by the public. The Legislature should not intervene to favor special interests.
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[1] According to the National Association of Counties, the Utah Supreme Court, in State v. Hutchinson, 624 P2d 1116 (Utah, 1980), concluded that Utah is essentially a legislative home rule state. “Utah counties are unique in that they are considered to be governed under Hutchinson’s Rule…. Utah’s supreme court concluded that ‘Utah municipalities [and counties] have the right to legislate on the same subject as a state statute where the general welfare power is at issue.’” Counties and municipalities may pass legislation that is not in direct conflict with state statutes. https://www.naco.org/sites/default/files/event_attachments/DRAFT_Utah_012022.pdf . See also the 2019 report by the Local Solutions Support Center, https://static1.squarespace.com/static/5ce4377caeb1ce00013a02fd/t/5eb344bc01b02f5fffc51dce/1588806844629/50+States+–+UT+Home+Rule+%282020+updates%29+%28final%29.pdf .
[2] T. Semarad, “SLC clears new rules for housing infill, row houses, cottages and other smaller homes,” Salt Lake Tribune, December 7, 2023. https://www.sltrib.com/news/2023/12/07/slc-embraces-monumental-new/
B. Apgar, “There’s a new way in SLC to pay rent and save for a home at the same time, Salt Lake Tribune, February 11, 2023. https://www.sltrib.com/news/2023/02/10/theres-new-way-slc-pay-rent-save/ . Building Salt Lake, L. Garrot, “Nonprofit developers to convert HK Tower into affordable housing, August 9, 2023. https://buildingsaltlake.com/hk-tower-to-undergo-office-to-residential-conversion-by-non-profit-developers/ .
[3] Utah Code 10-9a-403 and 10-9a-408 for municipalities. https://le.utah.gov/xcode/Title10/Chapter9a/10-9a-S403.html and https://le.utah.gov/xcode/Title10/Chapter9a/10-9a-S408.html ; Utah Code 17-27a-403 and 17-27a-408 for counties. https://le.utah.gov/xcode/Title17/Chapter27a/17-27a-S403.html and https://le.utah.gov/xcode/Title17/Chapter27A/17-27a-S408.html .
[4] S. Fisher, “To Build Housing, build rapport—and focus on the region,” The [Moab] Times Independent, December 13, 2023. https://www.moabtimes.com/articles/to-build-housing-build-rapport-and-focus-on-the-region/ And as Steve Waldrip, the Governor’s new Housing Innovation Adviser, said “We’re asking [developers] not to lose money, but potentially not to make as much money and to still be profitable, but not to maximize profit to the detriment of our state.” E.M. Stern, “Inside Gov. Cox’s ‘audacious’ plan to create tens of thousands of starter homes for young Utahns,” Salt Lake Tribune, December 6, 2023, https://www.sltrib.com/news/politics/2023/12/06/inside-gov-coxs-audacious-plan/ .
[5] Utah Code 57-20-1. https://le.utah.gov/xcode/Title57/Chapter20/57-20-S1.html; Utah Code 10-9a-535. https://le.utah.gov/xcode/Title10/Chapter9A/10-9a-S535.html. Moreover, Utah Code10-8-85.4 prohibits local governments from preventing individuals from listing short-term overnight rentals on advertising sites like Airbnb. https://le.utah.gov/xcode/Title10/Chapter8/10-8-S85.4.html. Municipalities had complained that such rentals were increasing housing shortages because homes that had been residences were being acquired for short-term rentals. For a national perspective, see Shane Phillips, The Affordable City: Strategies for Putting Housing Within Reach (and Keeping It There) (Island Press: 2020).
[6] R. Gehrke, “Legislature’s overreach in Summit County thwarted by sloppy law writing,” Salt Lake Tribune, June 17, 2023. https://www.sltrib.com/opinion/2023/06/17/legisaltures-overreach-summit/
[7] S. Fisher, “Legislature passes amended OHV bill,” The Times Independent, March 10, 2022. https://www.moabtimes.com/articles/legislature-passes-amended-ohv-bill/ . S. Fisher, “The Nexus of housing, local policy and state” (Part 1), The Times Independent, September 28, 2023. https://apautah.org/the-nexus-of-housing-local-policy-and-the-state/ . S. Fisher, “Being on the defensive: Cities, counties see constraints on housing efforts” (Part 2), The Times Independent, October 19, 2023. https://www.moabtimes.com/articles/being-on-the-defensive-cities-counties-see-constraints-on-housing-efforts/
[8] R. Gehrke, “Gov. Cox open to a ‘rebalance’ of city powers after Draper homes collapse. It’s about time, Robert Gehrke says,” Salt Lake Tribune, May 19, 2023. https://www.sltrib.com/opinion/2023/05/19/gov-cox-open-rebalance-city-powers/
[9] C. Reed, “Ivins mayor, officials say local cities are getting ‘hands tied’ by Utah Legislature on home design,” St. George News, July 7, 2023. https://www.stgeorgeutah.com/news/archive/2023/07/07/cdr-lgl23-ivins-mayor-officials-say-local-cities-are-getting-hands-tied-by-utah-legislature-on-home-design/ .
[10] The full resolution can be found at https://www.ulct.org/home/showpublisheddocument/14666/638320210026670000
[11] See November 13, 2023 draft of IFDs at Bill File 2024FL0299/004. https://le.utah.gov/Interim/2023/pdf/00004682.pdf
[12] T. Fitzpatrick, “Power play: Legislators move to take control of Utah coal plant before it closes,” Salt Lake Tribune, November 16, 2023, https://www.sltrib.com/news/2023/11/16/legislators-hear-plan-give-them/ . D. Irvine, “Utah lawmakers are putting Utah’s municipal power systems at risk,” Salt Lake Tribune, December 3, 2023. https://www.sltrib.com/opinion/commentary/2023/11/30/opinion-utah-lawmakers-are-putting/ .
