I’m pro-development. My first job out of undergraduate was developing ski resort property in Park City and Sundance. Many of my neighbors and closest friends are developers. But I do not subscribe to handing the keys to the kingdom to the real estate industry as the means to solve Utah’s housing and affordability challenges.
Sen. Mike McKell, R-Spanish Fork, the sponsor of SB199, would have you believe that Utah’s progress is threatened by the voice of the people, specifically the use of referendums to challenge land use decisions. To counter this, he proposes vesting local legislative bodies with uncheckable power. And by applying a supermajority (or even unanimous) threshold, he thinks he’s struck a fair compromise.
He’s wrong and here’s why.
Land use differs from ordinary legislation. Don’t like the legislation, vote out the legislator(s). But that’s an insufficient remedy for development, which cannot be unwound. There’s no putting the toothpaste back in the tube. The consequences of poor development last generations. So let’s measure twice, cut once.
A super majority at the local level looks nothing like it does at the state Legislature. At the state, more than 50 representatives are required to secure super-majority. In the case of Holladay, where we live, land use issues are resolved by five city council members and a part-time mayor. So, four people (or two-thirds of this local body), under McKell’s proposal, would decide the fate of more than 30,000 with impunity.
I believe those who serve in public office are generally good. But they don’t always get things right. In my community, elected officials ignored the recommendation of the planning commission, discounted citizen feedback captured in third-party survey work they commissioned, and falsely believed that this was the only developer who would come up with a plan for the old Cottonwood Mall. They unanimously approved the development, which was later overturned by referendum, an overwhelming number of popular votes, and the state Supreme Court.
The housing constraints or affordability issues are not a byproduct of referendums. To suggest otherwise or state that referendums are being weaponized, as McKell does, is ignorant. First, how many developments have been slowed or halted by referendum in relation to the number of developments that are approved and completed? It’s some fraction of a fraction of 1% or close to zero.
Second, and perhaps more importantly, referendums are ridiculously hard. Trust me, I co-led one and wear the scars to prove it. Here are some of the things we had to endure to stop one development and ensure that the voice of the people wasn’t usurped by just a few:
- Organize hundreds of volunteers willing to commit tens of thousands of service hours over a 14-month period.
- Raise hundreds of thousands in donations to support the effort.
- Weather personal legal threats and unsettled spouses on the receiving end of cease-and-desist notices.
- Gather more than 5,874 signatures from registered voters within a limited geography in 45 days to get the issue on the ballot.
- Find a law firm with relevant experience that wasn’t already retained by developers or unwilling to oppose them.
- Sue the city for rejecting our referendum petition and prevail at District Court.
- Win almost 40% more votes at the election box.
- Survive not one but two challenges to the state Supreme Court, both of which we won unanimously.
Does this sound easy? It was a grind, against-all-odds effort that I don’t wish on anyone. But it was an important remedy for our community, where the voice of the people was overwhelmingly affirmed. Did our work stop progress? Absolutely not. In fact, it helped bring forward a better development plan. Less than a year later, a local developer came forward with an alternative plan, one which is currently under development.
I stand with those who want to solve the housing and affordability constraints in our state. But gutting the only check on elected officials with respect to real estate matters is not the path forward.
Brett Stohlton is a resident of Holladay, Utah.