Supreme Court defers to Legislature

If there is such a thing as "land use junkies," they are probably giddy at the release of B.A.M. v. Salt Lake County, 2006 UT 2. For the rest of us, the decision is noteworthy because of the unusual deference the court gives to the legislature on an issue of constitutional rights.

This is amended opinion. I read the original, but remember very little (I'm not a land use junkie). So I'll just lay out the amended opinion.

B.A.M. objected to an exaction imposed by the County. The County turned the objection away without a hearing and without taking evidence. B.A.M. sued in district court. The court held a hearing, took evidence, and then ruled in favor of the County. B.A.M.'s primary contention in district court was that the exaction should be tested under the rough proportionality test from Nollan and Dolan. The court disagreed, ruling that the Nollan/Dolan test only applied to adjudicative exactions.

B.A.M. appealed. The court of appeals reversed, holding that the district court erred in taking evidence. It ruled that the district court was limited to determining whether the county's action was arbitrary and capricious. Since the county had failed to give B.A.M. a hearing, its decision was arbitrary and capricious. The court also held that the rough proportionality test applied.

The supreme court granted cert to consider the proper scope of review of a land-use decision in district court and the application of the Nollan/Dolan test. During briefing, however, the legislature made amendments to the County Land Use, Development, and Management Act that spoke directly to the issues on cert. The legislature passed section 17-27a-801, which directs district courts reviewing land-use decisions to take evidence when there is no record. It also enacted section 17-27a-507, which essentially adopts the rough proportionality test from Nollan/Dolan for all county exactions.

The supreme court held that the 17-27a-801 is procedural amendment that applies retroactively. Thus, the district court did the right thing in taking evidence.

The supreme court then held that section 17-27a-507 implicates substantive rights, and thus cannot apply retroactively. So it reviewed the history of the Nollan/Dolan test, and concluded that "courts and scholars are unanimous in their assessment that the scope of the Nollan/Dolan analysis is unsettled."

Then comes the interesting part:

This court has yet to lend its voice to the unruly judicial chorus on this issue. We would be ill-advised to choose whether to adopt or apply the legislative/adjudicative model based solely on our judgment concerning which side of the debate has the more persuasive case. This is because our legislature has spoken directly to the question.

The court continues:

The general proscription against retroactive application of laws with substantive effect has little or no relevance where the statutory enactment fills a void or resolves an unsettled question upon which we have taken no position.

Normally we think of constitutional rights as being inalienable by the legislature. So it is unusual for the court to defer to the legislature on a question of constitutional rights, without the court also conducting its own analysis of the question and reaching the same result as the legislature. But the deference is appropriate here, because the legislature choose a test that has already been deemed compliant with the constitution:

In an environment in which the policy choice reflected in the decision to apply the rough proportionality test to all exactions would not upend any reasonable expectation on the part of a governmental entity that its exactions would escape rough proportionality scrutiny, we do not hesitate to align the law applicable to this case to that later embraced by the legislature.