Thursday, February 01, 2007

Mapleton Resident Takes-Up Cause at the Legislature

In this one legislative session a Mapleton resident is directly responsible for at least 3 pieces of legislation that are devastating to municipal government, and unfortunately two of those bills will be heard today. We will be sure to update you soon after the committee hearings.

Here are the talking points from a municipal perspective on these two bills:

Eminent Domain Amendments
Rep. Aaron Tilton

HB-334 redefines some “parks”, “trails” and “emergency access ways” to exclude any of these uses from the definition of a public purpose for which eminent domain may be used. The bill also requires an agency to condemn excess property by requiring the agency to condemn the property to the owner’s property line if the effect of the conceived condemnation would split a parcel of property. Lastly, the bill includes intent language that intimates that trails and parks as defined in this bill have NEVER been a public purpose for which eminent domain may be exercised – Which is categorically untrue.
ULCT Policy Concerns:

While a legitimate legislative discussion is warranted on the issue of condemnation for walking trails and parks, this bill is far over-reaching in an attempt to provide undue influence in pending litigation between ONE land-owner and ONE municipality. It would be an unhealthy precedent to use our legislative process to “trump” the due process procedures that are embodied in the judicial system. This bill is absolutely unnecessary.

The removal of eminent domain authority in this area last year has already impeded completion of trail systems in Washington and Utah Counties to include connectivity of the Bonneville Shoreline Trail in Highland and the St. George River Walk. The bill will also likely slow completion of the Jordan River Parkway in Salt Lake and Utah County.

Requiring local governments to condemn to an owner’s property line if a smaller area of condemnation is all that is warranted would foster the holding of excess property by local governments for unnecessary reasons, and shows a fundamental misunderstanding of Title 78. The law currently stipulates that we must pay severance damages if it is shown that a condemnation detrimentally affects the value of associated property – this portion of the bill is absolutely unnecessary.

The bill prevents local governments from condemning a right of way for emergency access – if the ability to respond to emergencies is not a public purpose what is?

The bill also falsely implies that the state statute has never allowed for condemnation for trails or parks as defined in this bill, which is just untrue. The sole purpose of this portion of the bill is to provide undue influence in pending litigation. It would be unhealthy to use statewide policy for single legal case that is born of spite. In addition, this section would reopen legal arguments in previous circumstance were eminent domain was used for trail and park systems.

Environmentally Restrictive Zoning Districts
Rep. Michael T. Morley

1. HB-233 invalidates every geological hazards (landslide, unstable soils, floodplain, and avalanche) and wildfire protection ordinances in the state of Utah!

a. Lines 266-299 of HB-233 describe the method that all cities and towns must use to enact ordinances which protect public health and safety in environmentally restrictive zoning districts. Because the HB-233 method is new, none of the existing ordinances have been adopted according to the method and all would be invalid.

b. The new HB-233 method for enacting protective ordinances requires a city to prove through "compelling" means a need to protect public health and safety. This standard of judicial review will simply discourage many jurisdictions from regulating environmentally sensitive areas and will lead to a reduction in public health and safety.

2. HB-233 circumvents the work and findings of the Governor's Geological Hazards Task Force.

a. The Governor's Geological Hazards Task Force recommends greater enforcement of local land use regulation to prevent construction in geologically hazardous zones.

b. The Governors Task Force has offered drafted a model geological hazards ordinance and is developing training for local jurisdictions in the use and enforcement of the model ordinance.

c. There are no standards for geotechnical experts in Utah. One action item for the Governor's Geological Hazards Task Force in 2007 is to recommend standards for geotechnical experts in Utah.

3. HB-233 creates a lose/lose scenario for local government.

a. HB-233, changes the presumption of legality of local ordinances would allow any "competent professional", to trump local enforcement of geological hazards ordinances. Because there are no standards for "competent geotechnical professionals" these code lines will be the source of endless confrontation and litigation.

b. As newly subdivided lands slide and homes are lost as a result of this bill, cities (not the developer) will be sued by homeowners for allowing their homes to be built in geological hazard areas.

4. HB-233 is another attempt to settle pending litigation matters for Dr. Wendell Gibby.