By Craig Call

When Beverly Watson and her husband moved to Arizona to enjoy retirement, they let her grandson move into her old home so he could raise his family where it would have room to grow. There were two and a half acres for the kids and a shed to work on old cars. Tragically, Beverly’s husband died, and she moved back to Utah so she could be closer to the kids.

Since the lot was so big, everybody thought it would be a great idea to build grandma a retirement home on the property. Seemed simple enough, so Beverly’s grandson went to the planning department and applied for that “simple” subdivision.

No problem, said the staff.

Give us thirty feet of right of way across the front of your lot. Some day we are going to widen that road and we will need that additional land.
Pay for half the cost of widening the road in front of the house to arterial width.
Pay for the cost of building a bridle trail.
Give us an additional slope easement so we can raise the road when we get around to it and taper the shoulder onto your property for another 18 feet.
While you are at it, also pay for the cost of burying the main Rocky Mountain Power line running along the front of the lot which serves the Eastern side of the city.

Of course if Beverly did not want to split her lot right now she would not owe anything. Sometime in the future when the road widening and powerline burying project was ready to begin the City would have negotiated with Beverly to pay her for the land and bear all those costs itself. That’s how all of her neighbors will be treated when the time comes. But Beverly is different from her neighbors because the neighbors are not asking the City for anything right now. Since she wants a land use approval from the City, Beverly is available for some exactions, whether she likes it or not.

The total was well over $100,000 plus the value of the thirty feet of land. All this for the privilege of splitting the lot and adding one more house. And all this in addition to the permitting, engineering and impact fees she will also pay to the City.

Beverly Watson is joined by a host of Utah dignitaries in her front yard as they announce plans to promote a Federal Property Rights Ombudsman, which never materialized. She is the shortest person in this photograph from 2005.

Beverly’s grandson objected at the planning commission hearing where the matter was discussed. One commissioner said “That doesn’t sound right”. Another commissioner said “It happens, it happens all the time though.” “It’s not equitable” says the first. “Yeah, but that’s the way it works” he is told. Beverly can take it or leave it. Of course it was patently illegal to impose these burdens on her.

In the meantime, Beverly is sleeping in the living room of what used to be her home.

Fast forward six months. Senator Orrin Hatch (R-UT) holds a press conference in Beverly’s front yard. The Governor is there. The Mayor is there. The Attorney General is too. Two state senators and a state representative for good measure joined in, as well as the State Directors of Natural Resources and UDOT. And, of course, Beverly is there. She’s the shortest one in the photo.

Everyone agrees that they have done a wonderful job of fixing Beverly’s problem. Beverly has her permit and the conditions have been dramatically reduced. The ordinances are amended. The burdens are revisited and fairly adjusted.

OPTIONS FOR RESOLUTION

Without making a congressional case out of each issue, how do we solve this kind of problem for individuals?

First, those of us who are land use professionals usually solve problems before this kind of burden is imposed on individuals. Most of the time, this kind of problem does not even arise because planners and city administrators understand the principles of fairness and proportionality.

If there are laws that operate with this kind of unfairness however, it should not literally take an Act of Congress to change them. The burdens placed as a condition of approval for a land use application have been clearly limited by the US Supreme Court and local law. They must be “roughly proportional” to the burdens that the proposed development places on the public. But the citizen does not approach the counter at the building department with a copy of either Nollan v. California Coastal Commission or Dolan v. City of Tigard in their hand. We as land use professionals understand those cases and in almost every situation keep things in balance by making good staff recommendations.

Second, we need an easy process that a layman can understand to get a quick and efficient third-party review when needed. Utah alone has a State Property Rights Ombudsman, a position which caused a lot of apprehension in the land use and transportation communities when it was created. Twenty-three years and three ombudsmen later, the system seems to be working well. The ombudsman mainly just chats with people on the phone, providing quick but credible comments on potential disputes and advising both local government and property owners with a reality check.

The ombudsman can also write advisory opinions for a $150.00 fee. An opinion is not binding. If the matter goes to court and the judge agrees with the ombudsman, however, attorney fees can be due from the party who disagreed in the first place. The opinion is like a judge would make, full of legal citations and precedents. All parties have been consulted before it is written. The idea is to get the kind of answer you would get from a court on a narrow legal issue without having to go to court to get it. It takes about 1-2 months to complete the process.

The office has now produced more than 225 advisory opinions which anyone can review online at www.propertyrights.utah.gov. I know the name of the office sounds biased, but if it did not sound “citizen-friendly” it would not function well. The name helps property owners feel a little more comfortable making the contact with an entity that is, after all, part of the government.

Few here in Utah seems to want to go back to the pre-ombudsman days. I believe the office continues to do a lot of good. UDOT claims it has saved millions of dollars in legal costs because of the ombudsman’s mediation and arbitration services for eminent domain disputes. We have a relatively low percent of right-of-way acquisition litigation in comparison to other states.

The author put his files in his pickup and rode the circuit from town to town working through property disputes as the Utah State Property Rights Ombudsman. His truck became known affectionately as the “ombuggy”.

LOCAL APPEALS OPTIONS

Of course only one state has an ombudsman-based land use review process, but we all have either a Board of Adjustment or a Hearing Officer. In Utah we call that an “Appeal Authority”. The ombudsman does not take the place of that essential local step in the formal appeal process. Every litigant still needs to “exhaust local remedies” before they go to court.

A local appeal on the merits can be an essential “pressure relief valve” which helps to avoid making serious mistakes on all sides of a land use question. If it is staffed with well-trained and independent individuals, an appeal should help resolve difficulties and solve more problems than it causes.

A land use appeal is meant to protect all involved – to give the municipality a second look when objections are raised – and to afford the applicant/property owner/neighbor/competitor a chance for a hearing on the merits. It’s a whole lot less hassle than going to court and often can provide both a solution (and some much-needed therapy) for those involved.

We have about 15 years of experience in Utah in allowing cities, counties and towns to not choose to appoint a hearing officer to be the local “appeal authority” instead of a board of adjustment. We also allow other groups including the local legislative body to hear appeals. (That is not an option I recommend by the way. It can be pretty difficult for elected officials to take off their “chat at the grocery store politician” legislative hat and put on their “unbiased third party neutral decision-maker” quasi-judicial hat to hear a case as the appeal authority.)

There are, of course, pros and cons between the option of hiring a hearing officer option versus appointing a board of adjustment.

BOARD OF ADJUSTMENT:

Pros: This option involves local people that have the local lay of the land. There are usually no direct costs other than staff time (which I admit is not a small factor). It’s the way we have always done it so we don’t have to make major changes. A board is viewed by many as not likely to be as strict on the letter of the local ordinances. Many consider that a good thing. It is usually easier to get a variance from a board than it would be from a hearing officer. A board can involve a mix of members including a lawyer, a planner, a real estate professional and others with diversified backgrounds. In many states there is no other option.

Cons: Using a board is cumbersome. There are delays in waiting for fixed meeting dates or getting all the members together for special hearings. A big issue is that it can be difficult to find qualified individuals and train them. They are often not as informed on the applicable law as a trained individual might be. Boards are viewed as sometimes being more easily swayed by public clamor and emotion and to be less able to enforce a correct application of the law. Their decisions may be less likely to survive a challenge in the court room. It takes a lot of staff time to prepare recommendations and provide findings of fact and conclusions of law for a bullet-proof decision by a lay panel.

HEARING OFFICER:

Pros: It’s simpler. An individual can respond to appeals or variance requests with flexible hours, dates and formats. Parties can sit around the table at city hall and still preserve all the essential elements of due process without a lot of formality. The format is very flexible. I have heard cases entirely via email communications, preserving a record for further appeal and protecting all involved from inappropriate contacts outside the record. Zoom or its video alternatives also work very well, enhance flexibility, and can keep travel costs to a minimum.

Most hearing officers are very knowledgeable about the law and ordinances. A hearing officer is more likely to follow the law and keep the city or town out of court, or to improve the chances of a win if the matter is litigated. They do not have to be lawyers. A hearing officer could be a seasoned planner or lay person.

An experienced hearing officer can handle all details of the appeal and remove all administrative burdens from the city staff. The right hearing officer can also avoid the trouble caused when a decision is based on clamor or bias. Land use regulations and processes have long been accused of promoting inequity and even discrimination against certain classes of citizens. A hearing officer can help avoid both the appearance and substance of such potential abuses.

An individual can be appointed for a term of years or case by case, depending on the ordinance. Some individuals are available to provide this function for several municipalities. They generally do not live in the communities they serve, but can get up to speed on the issues quickly now that local ordinances are universally available on line.

Cons: Local governments sometimes do not want the law applied strictly and appreciate the more casual approach that a citizen body takes. Many communities want the local touch that a citizen board provides. A hearing officer can cost a few hundred dollars to a thousand dollars or more to review a case, hear from the parties, and write up a decision, depending on the complexity of the issue.

A FAIR PROCEDURE

All in all, whatever the process, it is essential that we provide a fair and understandable procedure to resolve land use disputes. “. . . due process is not a technical concept with a fixed content unrelated to time, place and circumstances which can be imprisoned within the treacherous limits of any formula. Rather the demands of due process rest on the concept of basic fairness of procedure and demand a procedure appropriate to the case and just to the parties involved.” Utah Supreme Court, Rupp v. Grantsville City, 610 P.2d 340 (Utah 1980).

As land use professionals we can build great cities and lovely small places. We can also look back on building great relationships and preserving the individual dignity that citizens are entitled to keep as they get involved in the land use arena.

Every Beverly Watson is obligated to cover the costs she imposes on the city. But Beverly Watson was not a resource to be mined. We as planners can facilitate fairness. A healthy and accessible means of resolving land use disputes is essential to accomplishing equity for all involved.

About the Author

Craig M. Call is a land use hearing officer for Salt Lake City and eight other Utah cities and counties. He is the executive director of the Utah Land Use Institute and served as the first Utah Property Rights Ombudsman. Craig is a retired attorney who once served on the Provo Utah City Council and in the Utah Legislature. His ideal day would be touring the spectacular landscape of the West in a vintage convertible.

Resolving Disputes in the West - Land Use Appeals