Payson Councilor Ed Blair lodged a vigorous but futile protest to a little-noticed change in the town’s General Plan that could potentially allow far more homes in rural, large-lot areas.
After a brief discussion last Thursday, the council voted 5-1 to approve the General Plan as submitted. The plan goes to the voters next year for final approval.
The town months ago hired a consultant to handle the state-mandated, once-a-decade overhaul of the General Plan, the town’s land use blueprint. The General Plan determines overall land uses — for instance earmarking land for commercial, residential and industrial developments.
The town council must then adopt a zoning ordinance to implement the general categories in the General Plan.
The zoning on a piece of property is much more specific — and gives the landowner certain rights to develop the property that make it tough for the town to later change the zoning.
Blair focused his objections on a change in the range of densities allowed under the rural, large-lot R-1175 designation. Currently, that “rural residential” category calls for up to one house for each 2.5 acres. But the overhaul of the General Plan attempts to generally increase densities — and give developers more flexibility. One portion of the General Plan overhaul talks about the greater expense of providing public services and infrastructure relative to tax revenue for low-density development.
As a result, the new General Plan “rural residential” category would instead allow as many as five homes per acre — although in practice, the number allowed would depend on the zoning, which is much more specific.
But Blair worried that including the higher number in the General Plan would make developers feel entitled to a zoning change, which would then affect people who had invested in two- and four-acre lots.
“My experience is when people see something in the General Plan, they think that’s the way it is. They will bludgeon you with it,” said Blair.
But Councilor Fred Carpenter said, “Just because you have a land use designation in the General Plan, you have no vested right until you go through the zone change.”
He was referring to change in state law that essentially turned a zoning designation into a property right. Under the law, towns can’t alter the zoning against the wishes of the property owner in a way that could decrease the value of the property — even if the land is empty. The zoning designation confers that right, but not a General Plan designation.
Blair protested that the General Plan shift would effectively increase the potential density in the rural residential category 20-fold.
“That’s a very big change,” said Blair.
Lurking behind the discussion was the recollection of stormy council sessions when neighbors protested a landowner’s effort to effectively build 14 homes on one-acre lots in an area surrounded by two-acre lots. The vigorous protest by the neighbors recalled the old days before the downturn when development dominated the council agendas. In the past four years, only one or two developments have come before the council — which has grown accustomed to half-hour meetings.
But other council members mostly dismissed Blair’s concerns, saying the General Plan offers the “20,000-foot view” of land use and anyone who wanted to build a five-unit-per-acre development next to a two-acre-per-unit subdivision would never win the needed zone change from the council. If neighbors appeal a zone change, two dissenting council members can block the change.
“Even if a zone change is consistent with the General Plan,” interjected Payson Mayor Kenny Evans, “you still need six votes on the council to rezone if there is an appeal by an adjoining property owner.”
Blair asked Town Attorney Tim Wright whether the council would have to agree to a zone change that was consistent with the General Plan.
“They can turn it down for any reason or no reason so long as it’s not a bad reason” like personal influence or a bribe, Wright explained.
“But the General Plan really has a big effect,” persisted Blair. “I’ve seen it used as a club. If it fits the General Plan they say, ‘you have to approve it.’ The density thing just got oversimplified in my mind. I’m really unhappy with the idea that five units to the acre could ever be considered low-density.”
Councilor John Wilson said, “You’re confusing the General Plan and zoning, the two are not the same. This just gives us more flexibility to manage things.”
Carpenter agreed. “I’d be very unlikely ever to approve five units per acre next to one unit per four acres.”
Nonetheless, Blair made a motion to direct the consultant to go back to the old range for the rural residential zoning before submitting the plan to the voters. “That’s only fair to people who have come into town and bought very scenic properties.”
But Mayor Evans disagreed. “This is the General Plan — not planning and zoning. All they have to do (to prevent a zone change) is protest and get you and Fred to vote against it.”
So the council rejected Blair’s amendment on a 5-1 vote, with Councilor Su Connell absent. The council then referred the plan to the voters on the same 5-1 vote.