Monday, November 26, 2012

Legislative vs administrative actions

The Utah Supreme Court recently decided an interesting case concerning the distinction between legislative and administrative action. Applying the reasoning from an earlier case, Carter v Lehi City, 2012 UT 2, ¶ 32, 269 P.3d 141, the court concluded that a revised development agreement concerning a planned unit development was legislative and not administrative.

With that in mind, two guidelines that we set forth in Carter are particularly applicable to the matter before us. The first guideline is that “legislative power
gives rise to new law, while executive power implements a law already in existence.” To clarify this distinction, we recognized “two key hallmarks of legislative power.” One hallmark is that “[l]egislative power generally . . . involves the promulgation of laws of general applicability.” Another hallmark is that “[l]egislative power generally . . . is based on the weighing of broad, competing
policy considerations.”

Suarez v Grand County, 2012 UT 72

Of course, here in Tennessee the landmark decision is McCallen v City of Memphis, 786 SW 2d 633 (Tenn. 1990), which essentially concludes that if the challenged action merely follows policies already established that it is administrative in nature. Trying to distinguish between these two different forms of action is often difficult, but it is an important aspect of land use planning all. For example, assuming that the decision could be characterized as administrative, even a zoning change might be challenged in a manner that is more easily overturned. However, here in Tennessee, based on Fallin v Knox County, 656 SW 2d 338 (Tenn. 1983), virtually all zoning changes are regarded as legislative.

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