<strong>Vague and overreaching restrictions cannot possibly be justified as advancing the public’s health, safety and general welfare.</strong>

Many municipalities in Utah ignore and violate their own land-use ordinances and state law. In city after city, officials bully and even extort developers and average Joes alike. Property owners’ constitutional rights to use, develop and dispose of their property are diluted, delayed and denied. Neighbors regularly, successfully and illegally assert rights over property they don’t own; they want to determine the land use and decide its design, size, color and density of units. They want farmland to remain farmland forever and regularly demand that undeveloped property be turned into a park.

Neighbors often strenuously resist any plan with added density. Residents in older subdivisions demand new projects have no more density of homes than their subdivisions. Today, people increasingly want smaller lots. Many younger families don’t want to spend hours on yard work, nor maintain large water-wasting lawns. Ground within a half hour’s commute of Salt Lake City is too expensive for large lot development.

I have watched Utah’s land-use law develop as a real estate attorney, a developer, city council member and mayor. As a legislator, I mediated highly productive meetings between the development community and cities and counties, from which emerged many helpful laws. The Utah League of Cities and Towns supported these jointly developed laws and continues to educate city officials about their limited powers and not to encroach on property rights. Indeed, many cities seek to adhere to the law.

Cities can treat developers unfairly for several reasons. Developers are an unsympathetic group, perceived to be rich and opportunistic. After all, the citizens and the city rather than developers have to live with the final project. Cities know developers rarely appeal land-use decisions because they don’t have the time to appeal an unfair decision. Nor do they want to alienate city officials; they might want to develop there again someday. The developer probably isn’t a voter, whereas protesting neighbors are voters and may go after non-compliant council members.

For 12 years I sat in city council meetings listening to neighbors who were duly concerned about the negative impacts of new development. We sought win-win solutions and often struck agreements acceptable to all. We worked to limit a project’s negative effects on citizens. But we also told our citizens when we had reached the legal limits of our power. However, we kept in mind that property owners have a fundamental right to develop their property consistent with the health, safety and general welfare of the community.

Cities’ land-use authority is grounded in the police power — the power to protect the public’s health, safety and welfare. Early zoning laws separated undesirable uses such as slaughterhouses from residential areas. The U.S. Supreme Court upheld such laws “to keep the pig out of the parlor.” Land-use laws also appropriately aggregate commercial uses and industrial uses. They regulate building on hillsides and in flood plains.

Sadly, however, land-use restrictions have metastasized to control the minutest details such as windows, building materials, roof lines and — get this — “appropriate massing, form, scale, rhythm, orientation, materials, fenestration and/or patterns.” Such vague and overreaching restrictions cannot possibly be justified as advancing the public’s health, safety and general welfare. They do allow government to meddle in private property rights. Such laws unconstitutionally deny owners the right to own, develop and dispose of their property and to receive due process of law.

Craig Call, a leading land-use lawyer, says, “although Utah land use law is often clearly defined by the statutes and case law, those empowered to apply it often ignore the law. They simply do not care about the rules governing their own behavior in this arena.”

Craig tells of attending a meeting recently in which “members of the commission stated on the record that they knew they were legally obligated to approve a subdivision, but were voting no because they did not like the plan.” He points out that we scrupulously guarantee the worst criminals their constitutional rights, “but when it comes to the constitutional rights to private property, the public consensus simply evaporates.”

It is incredibly ironic that in this state which reveres the Constitution, we routinely allow fundamental property rights to be ignored and violated.

Greg Bell is the former lieutenant governor of Utah and the current president and CEO of the Utah Hospital Association.