Development Agreements

Where authorized by state law, a Development Agreement is a written agreement between a municipality or county and one or more parties that regulates or controls the use or development of a specific area of land. Development agreements are contracts, and are generally subject to the same legal principles that courts apply when interpreting or enforcing the terms or provisions of contracts.

The use of Development Agreements is governed by Utah’s Land Use Development and Management Act, found at Utah Code Sections 10-20-508 (for municipalities) and 17-79-508 (for counties). Local governments are authorized to enter into development agreements with private property owners as a form of land use control, and a development agreement may contain any term that the local government considers necessary or appropriate to accomplish its land use objectives, but like all governmental activity, the use of development agreements must operate within statutory and constitutional limits.

Apart from authorized forms of development agreements, the otherwise unauthorized use of an agreement between a local government and property owner to illegally contract around zoning requirements is known as “Contract Zoning.”

Utah law provides that development agreements may not limit the local government’s authority in the future to enact a land use regulation or take any other valid legislative action. This is an example of illegal contract zoning, which involves a local government contracting or “bargaining” away its zoning power by obligating itself by advance contract to provide a particular zoning for the benefit of a private landowner.

Development Agreements can either be used administratively to implement existing land use regulations to a specific application for discretionary zoning options selected by the applicant, or else legislatively to enact tailored zoning standards for a particular development proposal.

Local governments may not require a development agreement as a condition for developing land if the development otherwise complies with applicable ordinance or is an allowed or permitted use where the regulations otherwise establish all applicable standards for developing the land.

If a development agreement will contain any term that conflicts with, or is different from, a standard set forth in an existing land use regulation applicable to the property, it must be approved by the legislative body according to the same procedures for enacting a land use regulation, including review and recommendation from the planning commission and a public hearing.

A development agreement that implements existing regulations as an administrative act does not require a legislative body’s approval. For example, certain zoning regulations may provide for “incentive” or “bonus” development types, such as Planned Unit Development or Master Planned Developments, where the regulation allows for certain density bonuses, setback waivers or other defined variations from underlying zoning standards in exchange for certain public or project benefits or restrictions beyond those otherwise required for conventional developments, such as open space or conservation easements, design standards, or other improvements or amenities.

Baker v. Carlson (2018) - A legislatively approved development plan was subject to a citizen referendum, while approval of a separate development agreement granting rights pursuant to the plan was administrative and not referable.

Wallingford v. Moab (2020) - contract zoning is illegal if it binds future legislative action or circumvents public hearing requirements.

LD III LLC v. Mapleton City (2020) - a development agreement was not ambiguous as to when transferable development rights could pass under the terms of the agreement.