SALT LAKE CITY — After a year marked with clashes between developers and residents fighting high-density development across the Wasatch Front, Utahns this legislative session may see changes to the state's laws giving citizens the power to challenge local zoning decisions on the ballot.
Changes currently proposed in a recently filed bill would make technical changes to bring more "clarity" to what a state lawmaker calls an "ambiguous" law.
But Utah's business community may push for more — broader changes that could impact what decisions are eligible for a ballot question — amid fear that referendums could create a "chilling effect" on future development along Utah's rapidly growing Wasatch Front.
It's not yet clear what those changes could be and if they could make local referendums more difficult to achieve.
The appetite comes after Holladay residents successfully placed a referendum on last year's ballot to challenge the city's approval of the controversial Cottonwood Mall housing development, which voters shot down. Another referendum challenged a student housing project near Utah Valley University in Orem, but failed at the ballot.
Though the Holladay referendum was litigated, the Utah Supreme Court upheld the vote. Still, project developer Ivory Homes — Utah's biggest homebuilder — continues to make its case in court, arguing the Utah Supreme Court judges misunderstood their arguments.
So far, the only bill filed that would adjust Utah's local voter referendum laws is sponsored by Rep. Brad Daw, R-Orem, and isn't new. It's a reincarnation of a bill drafted during the 2018 session and garnered wide support, but it died in the Senate when the clock ran out.
Daw's bill, HB119, would clarify "ambiguity" in the current law.
"We (currently) have a very inconsistent process that nobody really likes, and we want to have a clear, straightforward process," Daw said. "We want to give cities their fair shake, petitioners their fair shake, and (write a law) so everybody knows the rules."
Daw's bill, which was initially drafted after conflict over the Provo-Orem bus rapid transit line, is the product of negotiations among stakeholders, including the Utah League of Cities and Towns, and continues to have wide support.
It would require cities or counties to declare an action is eligible for a referendum before signatures are gathered — meant to avoid Election Day uncertainty seen in the Cottonwood Mall project's case, in which voters cast their votes without even knowing yet whether the question was valid.
The bill would also allow cities or counties to submit a written argument against the referendum, alongside petitioners' arguments, whereas current law forbids cities from using taxpayer resources to advocate for or against a referendum.
Additionally, rather than determining signature threshold requirements based on how many voters participated in the last presidential election, the bill would set thresholds based on city or county populations.
Cameron Diehl, executive director of the Utah League of Cities and Towns, said his organization supports the changes proposed to the referendum law.
"Mayors and council members from across the state are very supportive of modernizing the local initiative and referendum statute in a way that makes it easier for property owners, for cities leaders and for all stakeholders to understand the rules," Diehl said, noting that the league spent over a year working with Daw on the bill.
The Cottonwood Mall development and uncertainty surrounding its eligibility is "just one piece of the overall conversation," he added.
"Utah's population is set to double in the next 25 years, so there is going to be a tremendous amount of attention about how we grow and how do we redevelop areas and how we integrate transportation and housing and all other types of land use so we grow in a smart way," Diehl said.
A group of Utah business leaders, however, don't think Daw's bill goes far enough.
A push for more
When voters' rejection of the Cottonwood Mall project — a plan to build 775 high-rise apartments, more than 200 homes and dozens of shops and restaurants on the 57-acre site — was upheld by the Utah Supreme Court, leaders at the Salt Lake Chamber indicated they planned to lobby the 2019 Utah Legislature for changes.
"As we prepare for the 2019 general legislative session, the chamber will lead the charge for smart growth policies that provide clarity and certainty for developers, cities and residents on Utah's referendum laws," said Derek Miller, the chamber's president and CEO, at the time.
Abby Osborne, vice president of government relations for the Salt Lake Chamber, said this week that Daw's bill is "a good first step" to "clarifying" the law, but she believes the bill doesn't "quite go as far as we would like."
Ivory developers and others, including Osborne, have previously expressed concerns about the Cottonwood Mall project case's ruling and how it could impact Utah's future development amid the pressures of the state's creeping housing crisis.They worry referendums could become more popular among residents and create added hurdles for developers aiming to increase the state's housing stock.
"Zoning by referendum is not the right answer," Osborne said. "As we're growing immensely and (cities) are having to develop really in a smart way … the certainty really has to be there both for the private sector and public sector."
Osborne said there must be more clarity on what issues are legislative versus administrative (only legislative decisions are eligible for the ballot under current law). Disagreement between Holladay officials and residents on whether the Cottonwood Mall project decision was legislative or administrative brought the issue to the courts, where judges ruled the decision was legislative and therefore eligible.
Osborne said clearer requirements for signature gathering — including where signatures must be gathered — would also be useful.
"Just a little bit more meat on the bones on this law would go a long way," she said. "We've been having conversations with the Legislature and trying to strike the right balance within the code to be able to find that really clear clarity for all parties, but time will tell. We haven't quite found it yet."
Asked whether the aim is to make referendums more difficult to achieve, Osborne said, "That's certainly not our intent.
"But you could see in the Cottonwood Mall ruling that the courts are even confused," she added. "I think we owe it to all parties to tighten down this law so everyone's on the same playing field as far as the understanding (of the process)."
Daw said he doesn't currently have any adjustments planned to HB119, but he welcomes ongoing discussion. "My plan is to listen, and if they have legitimate concerns, then we'll take it as it comes, but my plan right now is to take the bill as written," he said.
Paul Baker, referendum organizer and a member of the group Unite for Holladay, doesn't take issue with the current draft of HB119, calling it a "pretty sincere attempt to clarify a few things" in the law.
But on a possible push from business leaders for more changes, Baker said it would be "absurd" to change the law based on any fear that the Cottonwood Mall case would have a "chilling effect" on development.34 comments on this story
"This was a unique situation in which the developer went way beyond what was appropriate as far as zoning went," Baker said. "We understand development has to happen in Utah, but to change referendum law and deny citizens the right to a voice all in the name of a crisis (would be) a bit disingenuous."
In response for a request for comment from Ivory leaders, Michael Parker, vice president of public affairs and senior economist for Ivory Homes, declined to comment for this story other than indicating that developers plan to monitor the issue.
"We know there's going to be a lot of attention on this, and we're just waiting to see how things evolve," he said.