How far can you go without destroying from within what you are trying to defend from without?
— Dwight D. Eisenhower
City councils are the legislative body in all Utah municipalities and are enabled by the state Legislature to control land use and development within their respective jurisdictions.
When the existence of close-minded ideology is rampant within a quorum of a council, government on a local level will likely come to a grinding halt and could lead to basic legal issues relating to land-use control.
The role of these elected officials is to provide a safe environment that assures the general health and welfare of community residents and a quality of life conducive to their needs.
The power given to this governing body, however, is limited by the procedures it needs to follow to exercise authority and by both state and federal statutory and constitutional law. Because land-use regulations affect private property, they can be controversial and considered intrusive. So, there will always be challenges to the use of this authority. These challenges will generally include failure to follow proper procedure, violation of federal law, or constitutional infringement.
The challenges to procedure may include violations of self-imposed requirements in addition to the procedures imposed by state requirements. Utah courts have consistently required a municipality to follow its own ordinances when regulating land use, and the state code now specifically requires it (Utah Code section 10-9a-509(2)).
Even though cities have broad discretion in the scope of land-use control ordinances, local law is trumped by both state and federal law. Some examples of this are the Federal Fair Housing Act, which prohibits discrimination against the disabled, and the Utah law that prohibits the zoning of state-owned property and limits zoning authority over school district property.
While the vast majority of developments proceed uneventfully, one other result of a city choosing to control land use is litigation. Seemingly the most frequently asked question of lawyers in this type of situation is whether a decision violates any aspect of city, state, federal or constitutional law. In determining if the decision is lawful, the court will look at whether the decision is arbitrary or capricious. This can be a difficult standard to understand and apply.
It is very common for a council’s land-use decision to be challenged with the assertion that it is invalid because it is based on public clamor.
This argument has its genesis in the 1988 case of Davis County v. Clearfield City. The court overturned a decision of the city council that denied a conditional- use permit because the finding was based substantially on public clamor.
The best scenario for a municipality is that its decision was rational and responsibly based and supported by the record. This would be shown in an evidentiary hearing reviewing the minutes of the public hearing, staff reports, submissions by the applicant or concerned citizens or any other information.
If the decision was not supported, the more likely scenario is a court ruling overturning the decision and awarding the permit originally denied by the city action.
In the absence of rational and responsible decisions, tax dollars needed to fund other things, such as public safety and infrastructure, are diverted into legal fees.
Steve Curtis has worked as a business consultant and communication specialist. He is currently mayor of Layton. He can be reached at scurtis@laytoncity.org.
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