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Tipping the land-battle scales

Published: Wednesday, Feb. 7 2007 10:11 a.m. MST

Property owners and municipal planners often engage in a tug-of-war over what types of buildings go where. In Utah, these battles can become particularly heated as cities and counties try to keep developments from scarring fragile hillsides, and as they struggle to preserve open space against a wave of growth.

Rep. Michael Morley, R-Spanish Fork, in sponsoring a bill, apparently written with one of his constituents in mind, that would tip those scales a bit more toward property owners. While the bill isn't as bad as its opponents claim, lawmakers should proceed carefully. The last thing Utah's fragile mountains need is more growth that could pose hazards in the event of an earthquake, mudslide or other natural disaster. They also could do without legislation that makes it easier for homes to mar their appearance.

The bill aims to give property owners a fighting chance by allowing them to override a zoning decision if they can provide "competent evidence," or establish "by professional engineering data and the testimony of competent experts" that a local government's concerns are incorrect.

Opponents correctly note that it would be easy to pay "experts" to refute a city's claim. However, the bill also would allow the city to reject the evidence, and it sets up a binding arbitration process to settle the matter. The local government and the property owner each would provide an arbitrator, and together those arbitrators would select a third one.

It all sounds fair, except that taxpayers would have to pay the entire tab for the arbitration process, regardless of outcome. There is nothing to stop property owners from abusing this system in the hope that a city or county will grow weary and give in.

The bill does preserve a city's right to reject construction on lots with a slope of 30 degrees or more. However, slope is not the only consideration in a state that has seismic activity and suffers from occasional floods.

These are not simple issues. Governments have in the past stepped unfairly on the rights of property owners. Even the U.S. Supreme Court has made it too easy for cities to condemn private property for economic interests, rather than the public good.

Significantly, however, Utah has not seen a lot of abuses in this regard. To a large measure, this is because lawmakers established the office of property rights ombudsman, which helps aggrieved owners.

Lawmakers need to consider whether there really is a need to do more.

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