Dysfunctional Distinctions in Land Use: The Failure of Legislative/Adjudicative Distinctions in Utah and the Case for a Uniform Standard of Review

Brigham Young University Law Review, 2004 by Prall, Todd W

I. INTRODUCTION

During the late 1990s, the City of Payson, Utah, received several applications to rezone portions of the west side of the interstate corridor to accommodate medium-density and high-density housing1 in accordance with Payson City's comprehensive plan2-a plan that outlines the general goals and vision of the city's future development.3 Payson City denied the applications without providing any basis justifying its decision.4 The landowners involved in both proceedings filed suit against Payson City, and the trial court reversed Payson City's decision because it had "no evidentiary support other than popular opinion."5 On appeal, the court of appeals held that no factual basis or evidence supporting the city's denial of the rezoning petition was required because as a legislative proceeding, the decision need only be reasonably debatable.6

While the character of the hearings was not in dispute, the legislative nature of the public hearings was less than obvious. The Payson City Council basically heard arguments from two groups of people: those whose properties would be affected negatively by the zoning change and those whose property would be affected positively. At heart, the city council made an adjudication of individual property owners' rights and bowed to popular opinion. Such a decision completely ignored the important principles of effective planning and the due process rights of property owners.

Although zoning amendments have many characteristics that reflect adjudicative rather than legislative decision-making, most courts view such city council decisions as legislative actions requiring great deference.7 Such light judicial review allows municipalities to sacrifice the due process and property rights of certain individuals to the private interests of other individuals under the guise of public interest and legislative power.8 It also leads to poor planning, leaving cities with a mess of ad hoc zoning based on individual developer petitions and plans.9

Since land use regulation first became a cognizable form of state police power in the early part of the last century,10 the judiciary has reviewed local land use decisions11 in order to ensure compliance with state statutes, due process, and property rights. In reviewing these decisions, courts became aware of the importance of maintaining legislative deference without compromising adjudicative legitimacy. In striking this balance, courts have created a maze of jurisprudence aimed at developing a system of meaningful review for local adjudicative decisions while maintaining deference to legislative decisions.12 Recognizing that the difference between legislative and adjudicative decisions is subtle, courts have developed two separate tests to help determine what category a land use decision falls into. Also, many courts have strived to maintain high deference to legislative land use decisions,13 while a few courts have restricted legislative deference based on a justifiable fear of irrational and unsubstantiated local land use decisions that are heavily influenced by particular groups or constituencies and rarely promote the central goals of community planning.14

While partially based on practical concerns, the legislative/adjudicative distinction is also based upon the principled separation of powers doctrine, which mandates that legislative power be treated differently from adjudicative power.15 Because separation of powers is often strained and vague at the local level,16 some scholars have attempted to rework these principles so as to better apply them to local government.17 Few scholars, however, have examined the possibility of abandoning the distinction and developing one standard of review for land use decisions18 and limiting pure legislative power in local land use to the development of a general or comprehensive plan.19 In 1999, the Utah Supreme Court arguably suggested such a standard of review in Springville Citizens for a Better Community v. City of Sprinjjinlle,20 spurring a debate in the lower courts.21 Although the Utah Supreme Court later clarified that it did not address the single standard issue in Sprinjjville Citizens because the parties conceded the issue,22 the lower court debate not only developed a reasonable statutory interpretation favoring a single standard of review but also illustrated the many unnecessary problems and complications courts face in crafting a rule for distinguishing local legislative action from adjudicative action.

This Comment contends that all Utah land use decisions, whether they are adopting or amending zoning ordinances, variances, or special use permits, should be reviewed under a uniform standard that requires local governments to provide substantial evidence in support of their decision. Although the statutory arguments will not apply to all states, this Comment also contends that every state, whether through the courts or the legislature, should consider a uniform standard of review for land use decisions. Making the legislative/adjudicative distinction for the purpose of reviewing land use decisions has become difficult, unpredictable, and unwieldy. However, a single standard of review can resolve the current difficulties and still strike the proper balance between legislative deference, effective planning, and due process. This single standard should apply to all routine land use decisions with the exception of the development of a comprehensive general plan. Specifically, courts should apply a standard of review that determines whether land use decisions comply with the mandates of the municipality's comprehensive plan. The standard should resemble the substantial evidence standard traditionally used to review adjudicative decisions. If courts require municipalities to use their comprehensive plans in making land use decisions, municipalities are more likely to make effective planning decisions and avoid irrational, ad hoc decisions based on immediate public opinion.