Guest opinion: The problem with citizen votes on land use decisions

Wilf Sommerkorn 01

The 2018 election in Utah saw a couple of significant local referenda on the ballot that most will remember – the rescinding of the Holladay City approval for the redevelopment of the old Cottonwood Mall site, and the acceptance of a rezone in Orem for an apartment development adjacent to Utah Valley University.

These two actions were just the latest in a series of land use referenda at the local level that have occurred over the last 15 years or so, but I believe they are harbingers of more actions to come.  We are seeing more and more “threats” from citizens in neighborhoods to put on the ballot the actions taken by their local elected officials on land use decisions.

Reactions of this kind by local resident, I believe, are being driven by a number of factors, such as increased development as a result of our rapidly growing economy, the relative scarcity of developable land near urban areas, and increased citizen activism prompted by social media. 

Now that citizens have gotten a taste of what they can do, I think such actions will only increase exponentially, and not just for big developments.  Witness the referendum in my home community last November for a rezone of a single small piece of property to allow for the storage of landscaping materials (it failed, mainly because the property owner spent some serious money putting up “political campaign” signs all around town!)

Are referenda (and its sister, initiatives) a good way to deal with local land use issues?  I’m becoming more and more skeptical.  Here’s why.

Initiatives and referenda (I&Rs) by the public were adopted as part of the Utah State Constitution in 1895, as it was in a number of other states around that time.  I understand why, as a reasonable response to the times.  The late 1800’s saw a lot of concern about the corrupting and co-opting of elected officials by business and special interest groups (railroads, mining, timber, and big city political machines). 

As Natalie Gochnour, associate dean of the David Eccles School of Business at the University of Utah wrote in a recent opinion piece, “citizen referendums … place an important check on power.” Natalie’s column was about the tax reform measures passed recently by the state legislature, in which she also wrote, “I question, however, whether a referendum is the best way to create tax policy.  In order to work, those who sign a referendum and vote on tax law need to become educated about the issues, just like we expect our elected representatives to do.” 

I would argue that most land use issues fall into the same category.  They are generally complex, multi-faceted proposals that are settled on after a lot of give-and-take negotiations by planning commissioners, elected officials, and land use staff.  To simply put such a proposal on the ballot for an up-or-down vote does not provide for the back and forth, education, and compromising that usually is the hallmark of good development projects in communities and neighborhoods.

Referenda are a form of direct democracy.  However, our system of government was set up as a republic, where people are elected by citizens to carry out the business of government on their behalf.  The concept is that these elected representatives, as part of their duty and responsibility, will take the time to study and learn about issues and make the best considered decisions.  In a referendum, however, citizens only have a yes or no vote on the proposal as it exists.

Henry Cabot Lodge, a past prominent and well-known U.S. Senator from Massachusetts, gave a series of lectures between 1907 and 1912 in which he argued that direct democracy and republican government are fundamentally incompatible.  I&Rs typically produce worse laws than elected representatives, Lodge maintained. 

In a legislature, all measures are “open to debate,… to amendment, to reference to a committee (for study) and to postponement.”  By contrast, the I&R process rushes proposals before voters, who cannot modify them in any way, but must vote them up or down in their entirety.  This makes no sense, Lodge argues, because there are many questions that cannot be answered simply “yes” or “no.”  Besides, he charges, the I&R forces voters to act without adequate information based merely on “what they happened to have read in the newspapers or to have heard from their neighbors.”

To this last point raised by Lodge, I would add, not only do people in general only know what they hear, but what they hear is often incomplete or even erroneous.  Particularly in land use issues, how often do we hear neighbors say with regard to a development proposal that it will “increase traffic, lower property values, increase crime, and endanger the safety of children?” Pretty much with every substantial proposal, yet much of this is not true, or at least it is more nuanced.  Yes, it will increase traffic, but so will just about any kind of development. The right question to ask is what level of impact will it have on the streets, is that significant, and can it be ameliorated?

Another factor that we must deal with that did not exist in the days when the I&R process was adopted, is social media.  Today, groups of neighbors and citizens frequently organize and communicate through social media, far outstripping the ability of official sources to disseminate information or refute incorrect facts.  Such self-organized groups tend toward the amplification of clichés, conspiracy theories, and unproven claims and accusations.

Recently, for example, a citizen-led Facebook page directed against a large development proposal stated that studies show that higher density projects result in lower property values in surrounding neighborhoods.  No reference was given.  In fact, such studies uniformly have shown virtually no impact on neighboring property values.

A study of social media and the spread of true and false information online by the Massachusetts Institute of Technology Initiative on the Digital Economy concluded that “it took the truth approximately six times as long as falsehood to reach 1,500 people and 20 times as long to reach a cascade depth of ten.  As the truth never diffused beyond a depth of ten, we saw falsehood reach a depth of 19 nearly ten times faster than the truth reached a depth of ten.  Falsehood also diffused significantly more broadly and was retweeted by more unique users than the truth at every cascade depth.”

The MIT study goes on to say, “There are enormous potential ramifications to these results.  False news can drive the misallocation of resources…, the misalignment of business investments, and can misinform elections.”  Experience from land use referenda around Utah in recent years shows that much of the information that is used by referendum supporters is incomplete, inaccurate, and sometimes downright false.  Given the new-found propensity for groups to communicate and spread information via social media, is this any way to run a country, or our communities?

I’m not saying that I&Rs have no place in our political system. We just need to be very careful and considered in their use.  Citizens need to look closely at what has been adopted by the elected officials, and understand why before launching down the I&R path.  As noted earlier, the local land use process is complex and nuanced.  There are trade-offs, compromises (remember the rights of property owners?), and study of impacts and issues that need to be undertaken.  That’s why we have planning commissions and elected councils, whose job it is to undertake all that work.  They don’t always get it right, but it’s usually much more informed than what average citizens can do in their free time.  And if you don’t like what they did, well then, vote them out, run for office yourself.  That’s our republican form of government.

Borrowing again from Sen. Lodge, he held that frequent employment of direct democracy would undermine representative government, taking from legislators all power and responsibility.  Who then would govern in the end?  Something for us to contemplate.

Wilf Sommerkorn recently retired after a 39-year career as an urban planner.  He served as Planning Director at various times for, among others, Salt Lake County, Salt Lake City, and Davis County.  He has been an adjunct faculty member in the Urban Planning program at the University of Utah, where he taught a course on The Politics of Planning.  He currently is working with the non-profit Utah Land Use Institute as Deputy Executive Director.