Wednesday, December 11, 2013

Utah Supreme Court reverses precedent to hold a site-specific rezone is a legislative act and subject to referendum

Yesterday, the Utah Supreme Court reversed precedent and held that a site-specific rezone is a legislative action rather than a use of executive or adjudicative power.  The case, Krejci v. City of Saratoga Springs, 2013 WL 6447985 (2013), will be one the treatise and casebook writers will want to consider for discussing that hazy line between legislative and adjudicative powers that often arise in land use decisionmaking.

Here is an excerpt:

III

¶ 21 Article VI of the Utah Constitution vests legislative power in the people, to be exercised by petition for ballot initiatives and referenda. Carter v. Lehi City, 2012 UT 2, ¶ 17, 269 P.3d 141. That power is limited to actions constituting “a valid exercise of legislative rather than executive or judicial power.” Id. ¶ 18. Thus, when a city council exercises its legislative authority, voters retain the constitutional prerogative of challenging its decisions by referendum. But where the city council is acting pursuant to its administrative authority, the voters have no such right.
 
¶ 22 The central issue in this case is whether the site-specific rezoning of Capital Assets' property was a legislative or an administrative act. Because site-specific zoning effectively establishes a new law, and does not just implement one already in existence, we deem it a legislative act. We base that conclusion on the notion that rezoning requires the weighing of broad, competing policy considerations and results in a law of general applicability. And we accordingly hold that the referendum petition submitted by petitioners was properly referable under the constitution, and should thus have been accepted by the city recorder for placement on the ballot.
 
A
 
¶ 23 By statute, Utah voters are authorized to pursue a petition for a law “to be submitted to ... a vote of the people if it is a local law.” Utah Code § 20A–7–102. A “local law” is statutorily defined as “an ordinance, resolution, master plan, and any comprehensive zoning regulation adopted by ordinance or resolution,” but “individual property zoning decision[s]” are excluded. Id. § 20A–7–101(12).
 
¶ 24 As Capital Assets indicates, site-specific rezoning decisions are statutorily ineligible for referendum under the terms of this provision. But the people's power to legislate is not a creature of statute. It is inherent power—authority reserved by the people in our constitution. Carter, 2012 UT 2, ¶ 83. So the legislature's failure to delegate referendum power is not the end of the inquiry. We must proceed to consider the question whether the legislature's regulation overrides the people's authority as reserved in the constitution. And if it does, it is the people's constitutional prerogative that must control.
 
¶ 25 The constitutional question turns on the distinction between legislative authority on one hand and administrative or executive power on the other. That is the sum and substance of our inquiry. If the site-specific zoning decision at issue is legislative in nature, then the matter is properly referable—regardless of any statutory determination to the contrary.
 
B
 
¶ 26 Our Carter opinion clarified the standards dictating the scope of the people's legislative power. It started with the proposition that “legislative power gives rise to a new law, while executive power implements a law already in existence.” Carter, 2012 UT 2, ¶ 57 (internal quotation marks omitted). And it articulated the core hallmarks of legislative power: “Legislative power generally (a) involves the promulgation of laws of general applicability; and (b) is based on the weighing of broad, competing policy considerations.” Id. ¶ 34.
 
¶ 27 In Carter we flagged but did not resolve the question whether site-specific zoning decisions were legislative or administrative. Id. ¶ 75 n. 52. In so doing, we acknowledged that site-specific rezoning presented the “classic hard case” under the above-quoted standard, in that it seems to bear some hallmarks of administrative action (for example, in that it affects only one party), but bears other indications of legislative power (in that it runs with the land and “often involve[s] the kind of decisionmaking that is the essence of legislating—a balancing of policy and public interest factors”). Id. ¶ 72 (internal quotation marks omitted). We accordingly reserved the question for a day “in which the issue is squarely presented and fully briefed.” Id. ¶ 75 n. 52. That day arrived upon the filing of this case.
 
¶ 28 Carter articulated two bright-line rules for marking certain decisions as conclusively legislative as a matter of law. First, we indicated that decisions made by a governmental body possessing “only legislative power” are conclusively legislative. Id. ¶¶ 73, 75. And second, we held that the adoption of a broad zoning ordinance or a new zoning classification would also be a conclusively legislative act. Id. ¶¶ 71, 74. Neither of those bright lines is implicated here. Saratoga Springs has a six-member council, which “jointly exercises both legislative and executive powers over the municipality.” And both the R–3 and R–6 classification “already existed as part of the City Code at the time Capital Assets submitted its rezone application.”
 
¶ 29 Capital Assets cites the lack of any bright-line basis for treating the rezoning decision at issue here as legislative as a ground for denominating it administrative. But that misapprehends the nature of our analysis in Carter. The bright-line rules in Carter were aimed at clarifying the grounds for resolving easy cases, not for marking the outer bounds of the people's constitutional power in the hard ones. To do that we must return to the general definition of the legislative power and to the hallmarks of legislative authority cited in Carter. Id. ¶ 34.
 
¶ 30 In two prior decisions, we have denominated site-specific rezoning as administrative and therefore non-referable. See Bird v. Sorenson, 394 P.2d 808 (Utah 1964); Wilson v. Manning, 657 P.2d 251 (Utah 1982). But the cited cases are based on standards and considerations that were repudiated in Carter. 2012 UT 2, ¶ 75 n. 52 (“[W]e repudiate ... the legal standard applied in Wilson and Bird. ...”). Bird, for example, cited the court's concerns for efficient administration of municipal government. 394 P.2d at 808. Wilson reiterated that point while also noting the insignificance of the variation between the challenged decision and an earlier municipal ordinance. 657 P.2d at 254. But both of these considerations were thoroughly repudiated in Carter. 2012 UT 2, ¶ 64 (“The power of the people to legislate by initiative does not depend on the degree to which the people may wish to depart from existing law or on the proposed initiative's consistency with the general policy of existing law. Nor does it turn on a judicial assessment of the people's capacity to comprehend or efficiently legislate on a particular matter.”). So Bird and Wilson are unhelpful in resolving the question presented. To decide the matter we must return to the first principles articulated in Carter.
C
 
¶ 31 The chief hallmarks of legislative action under Carter are the adoption of rules of general applicability and the “weighing of broad, competing policy considerations.” Carter, 2012 UT 2, ¶ 34. Site-specific zoning fits both of these criteria.
 
¶ 32 We acknowledged in Carter that site-specific zoning decisions “affect only one piece of property.” Id. ¶ 72. Thus, they are not generally applicable in the sense that they “do not result in the announcement of a rule that applies generally to other pieces of property.” Id. But they are generally applicable in a more important sense, in that they apply “to all present and future parties that meet its terms.” Id. We conclude that this is the appropriate formulation of “general applicability.” Any future owner of the rezoned property would be subject to the new zoning classification. And in this particular case, Capital Assets plans to develop the property into seventy-seven individual residential units. All future owners would be bound by the decision to rezone the property. Therefore, we conclude that site-specific rezoning creates a generally applicable law.
 
¶ 33 That said, general applicability, standing alone, does not compel the conclusion that a certain action is legislative. We must also evaluate whether the action in question implicates the weighing of broad, competing policy considerations. Id. ¶ 34. Reference to established analogies—decisions granting variances and conditional use permits—helps to illustrate this distinction. In Carter, we treated those decisions as administrative. See id. ¶ 71. We reached that conclusion even though they, like site-specific rezoning, are often generally applicable in that they “run with the land” and apply equally to present and future owners of the property.
 
¶ 34 The analogy between rezoning, on one hand, and variances and conditional use permits, on the other, breaks down on further scrutiny. Variances and conditional use permits are fundamentally administrative acts because they involve application of existing law to the facts presented by an individual applicant. And the decision on variances and conditional use permits is limited to the evaluation of specific criteria fixed by law. A rezoning decision, by contrast, is open-ended. No fixed criteria are required to be met as a prerequisite for a rezone. Any and all considerations are on the table, such that rezoning decisions are made by “consider[ing] the wide range of policy considerations of relevance to all who fall within the scope of a particular law.” Id. ¶ 38.
 
¶ 35 A “conditional-use” or “special-use” permit is an “authorization to use property in a way that is identified as a special exception in a zoning ordinance.” Black's Law Dictionary 1527 (9th ed.). “Unlike a variance, which is an authorized violation of a zoning ordinance, a special-use permit is a permitted exception.” Id.; see also Utah Code § 10–9a–507(1) (“A land use ordinance may include conditional uses and provisions for conditional uses that require compliance with standards set forth in an applicable ordinance.”). So in the conditional use context, the exception to zoning requirements is anticipated in the zoning ordinance itself, with the ordinance setting forth conditions that must be met in order for a property owner to qualify for an exception. Thus, if an applicant meets the standards in the ordinance, the permit “shall” be approved. Id. § 10–9a–507(2). So when a conditional use permit is approved, no new law is created. Instead, existing law has been applied to the particular facts presented by the applicant. That is the essence of administrative—not legislative—action.
 
¶ 36 Similar considerations are in play in the decision whether to grant a variance. To qualify for a variance, the applicant bears the burden of establishing the following:
 
(i) literal enforcement of the ordinance would cause an unreasonable hardship for the applicant that is not necessary to carry out the general purpose of the land use ordinances;
(ii) there are special circumstances attached to the property that do not generally apply to other properties in the same zone;
(iii) granting the variance is essential to the enjoyment of a substantial property right possessed by other property in the same zone;
(iv) the variance will not substantially affect the general plan and will not be contrary to the public interest; and
(v) the spirit of the land use ordinance is observed and substantial justice done.
 
Utah Code § 10–9a–702(2)(a). Unless an applicant proves all of these elements, a variance may not be approved. Thus, as with conditional use permits, the decision involves a determination whether the particular circumstances of an applicant are sufficient to meet the statutory standard. And again, such application of law to facts is not legislative action.
 
¶ 37 A site-specific rezoning decision, by contrast, does not involve an application of existing law to a new set of facts. It involves the establishment of new law out of whole cloth. Such a decision is unconstrained by statutory requirements. No showing that “the spirit of the [previous] land use ordinance is observed” is required, for example. See Utah Code § 10–9a–702(2)(a)(v). The municipality is free to amend its zoning requirements in a fundamental way. Or in a merely minor fashion. The question is a matter of legislative policymaking.
 
¶ 38 Rezoning is fundamentally different from the matter of granting a variance or a conditional use permit. It creates a generally applicable law and calls for the broad weighing of all relevant public policy considerations. And on that basis we deem site-specific rezoning a legislative act—and thus subject to referendum. Our contrary decisions in Bird v. Sorenson, 394 P.2d 808 (Utah 1964), and Wilson v. Manning, 657 P.2d 251 (Utah 1982), are accordingly overruled.

Stephen R. Miller

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