Advisory Opinion #102

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Parties: Sean Brown, PCCARG Properties, LLC and Wasatch County

Issued:  July 6, 2011

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TOPIC CATEGORIES:

J: Requirements Imposed upon Development

R(v): Other Topics (Interpretation of Ordinances)

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A local government may impose requirements on new development that were not imposed on similarly-situated properties. The County has not forfeited its police power to impose the conditions even though previous permits were issued, and the landowner does not meet the standard of exceptional circumstances or discriminatory treatment in order to estop the County. The regulations in question do not reach the high standard to be regulatory takings.

 

DISCLAIMER  The Office of the Property Rights Ombudsman makes every effort to ensure that the legal analysis of each Advisory Opinion is based on a correct application of statutes and cases in existence when the Opinion was prepared.  Over time, however, the analysis of an Advisory Opinion may be altered because of statutory changes or new interpretations issued by appellate courts.  Readers should be advised that Advisory Opinions provide general guidance and information on legal protections afforded to private property, but an Opinion should not be considered legal advice. Specific questions should be directed to an attorney to be analyzed according to current laws.

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Advisory Opinion

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Advisory Opinion Requested by:                  Sean Brown

Local Government Entity:                              Wasatch County

Applicant for the Land Use Appeal:             PCCARG Properties, LLC

Type of Property:                                            Residential Subdivision

Date of this Advisory Opinion:                      July 6, 2011

Opinion Authored By:                                     Elliot R. Lawrence, Attorney

                                                                         Joshua Horrocks, Legal Intern,

                                                                         Office of the Property Rights Ombudsman

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Issues

May a local government impose requirements on new development that were not imposed on similarly-situated properties?

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Summary of Advisory Opinion

A local government may impose requirements on new development that were not imposed on similarly-situated properties. The requirements have been enacted by state law and county ordinances. The County has not forfeited its police power to impose the conditions even though previous permits were issued, and the landowner does not meet the standard of exceptional circumstances or discriminatory treatment in order to estop the County from enforcing its requirements. Finally, the regulations in question do not reach the high standard to be regulatory takings, and thus may be properly imposed.

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Review

A request for an advisory opinion may be filed at any time prior to the rendering of a final decision by a local land use appeal authority under the provisions of Utah Code Ann. § 13-43-205.  An advisory opinion is meant to provide an early review, before any duty to exhaust administrative remedies, of significant land use questions so that those involved in a land use application or other specific land use disputes can have an independent review of an issue.  It is hoped that such a review can help the parties avoid litigation, resolve differences in a fair and neutral forum, and understand the relevant law.  The decision is not binding, but, as explained at the end of this opinion, may have some effect on the long-term cost of resolving such issues in the courts. 

A request for an Advisory Opinion was received from Sean Brown on January 26, 2011.  A copy of that request was sent via certified mail to Thomas L. Low, County Attorney for Wasatch County.  The County submitted a response to the Office of the Property Rights Ombudsman, which was received on March 16, 2011. 

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Evidence

The following documents and information with relevance to the issue involved in this advisory opinion were reviewed prior to its completion:

  1. Request for an Advisory Opinion, including attachments, filed January 26, 2011 with the Office of the Property Rights Ombudsman by Sean Brown.
  2. Response from Wasatch County, submitted by Kevin S. Thurman, County Attorney, received on March 16, 2011.

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Background

PCCARG Properties, LLC (“PCCARG”) owns property in the Brighton Estates subdivision, located in Wasatch County, between Midway and DeerValley.  The subdivision is located in a mountainous area, and there are very few public services available.[1]  The area was subdivided many years ago, and was not required to install public utilities.  As a result, only a few recreational cabins have been constructed, and the area is mostly undeveloped.  According to the County, the last time a building permit was approved was in August of 2005.  PCCARG seeks greater development of Brighton Estates, and has proposed constructing new homes. 

The County informed PCCARG that no building permit could be approved, unless the proposed building satisfied the County’s requirements for culinary water and fire suppression systems.  Since there is no public water system in the Brighton Estates area, it is particularly difficult to meet those two requirements.[2]  The County will allow private water systems to be put in place, as long as those systems or wells meet the standards required by ordinance.[3] Apparently, the few cabins built in the area were approved by the County, even though fire suppression has been a requirement for some time.[4]  PCCARG claims that since those requirements did not apply to similarly-situated properties that have been built, the County cannot impose such requirements now.

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Analysis

I.     The Fire-Flow and Culinary Water Requirements of the Wasatch County Code were Properly Imposed by State Law and County Ordinances.

The fire suppression and culinary water conditions required for building permit approval can be properly imposed on PCCARG and its development in Brighton Estates. Governments may impose conditions on building permits if those requirements have been enacted by statute, or are expressed as part of the approval process. Utah Code Ann. § 17-27a-508(h) states

A county may not impose on a holder of an issued land use permit or approved subdivision plat a requirement that is not expressed:

(i) in the land use permit or subdivision plat, documents on which the land use permit or subdivision plan is based, or the written record evidencing approval of the land use permit or subdivision plat; or

(ii) in [Chapter 17-27a] or the county’s ordinances.

Both the State of Utah and Wasatch County have adopted the International Fire Code.[5] Wasatch County has also enacted Wasatch County Code § 16.21.12, which requires approval of a culinary water system from the County Health Department before a permit may be issued.[6]

Since both the Fire-Flow system and Culinary Water system requirements in question have been expressly adopted by state law and the county ordinances, Wasatch County can properly impose these restrictions on PCCARG and its proposed development.

II.     The County May Enforce its Requirements and Ordinances Even Though Similarly-Situated Properties were not Subject to those Requirements.

A.     The County Does not Forfeit Power to Enforce Ordinances Simply Because those Ordinances were not Enforced Against Similarly-Situated Properties.

The County requirements regarding fire suppression and culinary water are valid exercises of the police power and cannot be forfeited because they were not enforced previously. The doctrines of waiver and laches do not limit the County’s authority to enforce the requirements on PCCARG and other properties.

Ordinarily a municipality is not precluded from enforcing its zoning regulations, when its officers have remained inactive in the face of such violations. The promulgation of zoning ordinances constitutes a governmental function. This governmental power usually may not be forfeited by the action of local officers in disregard of the ordinance.

Salt Lake County v. Kartchner, 552 P. 2d 136, 138 (1976) (quoting City of Mercer Island v. Steinmann, 9 Wash.App. 479, 513 P.2d 80 (1973)). Utah appellate courts have held in several instances that governments do not lose power to enforce ordinances and impose requirements simply because they were not enforced in the past.[7] Changes in administrations, officers, and conditions bring about different philosophies. A government’s power to enforce enacted legislation does not rest on previous inaction or enforcement.

It appears that Wasatch County began strictly enforcing the fire suppression requirement for Brighton Estates in 2005. Since then no permits have been approved for building in that area. Although the fire requirements existed prior to 2005, and may not have been enforced, the County has not forfeited its police power to enforce this legislative requirement. Since that power was not forfeited, the County may legally enforce the requirement.

B.      PCCARG Does not Meet the Exceptional Circumstances Standard to Estop the County from Enforcing the Ordinances.

Enforcement of legally applicable ordinances may be estopped if there are exceptional circumstances pointing to discriminatory behavior in the enforcement. PCCARG has not produced evidence of such behavior meaning the County is not estopped and the regulation may be enforced.

To claim the doctrine of estoppel, a party must show more than just “silence or inaction” on part of the government.[8] Estoppel requires strong inequitable grounds.[9] In order to fully claim estoppel “exceptional circumstances must be present such as the intentional discriminatory application of the ordinance.”[10]

Utah appellate courts require substantial reliance to create the exceptional circumstances for estoppel. In Utah County v. Baxter the court rejected an estoppel argument even though the county issued a building permit and accepted an application and fee for a license. The use approved was different from the use the petitioner desired, and because of partnership conflicts, the owner realized that the county had not misled petitioner at all. Utah County v. Young represents a similar situation. Despite approval and construction of a barn being built to hold auctions, a business license was denied, and no estoppel was found where the county did not mislead or induce the owner to expect the business would be permitted.

PCCARG did not produce any evidence of exceptional circumstances which could estop the county from imposing the requirements on a building permit. To the contrary, the fact that no permits have been issued in the area since 2005 points to a conclusion that PCCARG is not receiving discriminatory treatment. Unlike Kartchner, where the specific individual was cited despite several similar violations on nearby properties; previous owners in Brighton Estates face the same conditions, and the County’s position remains the same, that enforcement is valid and the conditions must be satisfied prior to approval.[11]

The strict enforcement of the fire suppression and water conditions does not create inequitable grounds for PCCARG. Thus the estoppel doctrine does not impede Wasatch County from imposing the restrictions on a building permit.

III.     The Regulations Should be Analyzed as Possible Regulatory Takings

In previous opinions this Office has examined these regulations as exactions and as takings.[12] Concluding that the fire code requirement should be examined as a taking brought the analysis to determine the validity of the requirement under Penn Centrals. This Office in Deepwater/Wasatch County decided that the requirement would most likely not be a regulatory taking because the private benefit outweighs the public burden. A brief summary of that analysis is shown here to reach the same conclusion for both the fire code and culinary water conditions.

The United States Supreme Court ruled in Pennsylvania Coal that “property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.”[13] The analysis of “going too far” includes several factors including: a balancing of public and private concerns,[14] whether the regulation interferes so much with the property to render the property useless, or whether it interferes with “distinct investment-backed expectations.”[15] The purpose behind the regulation is also an important factor in determining who, the public or private party, is intended to derive the benefit from regulation. A regulation should not shift a public burden on a private owner.[16]

The fire code and culinary water requirements are imposed with the purpose to benefit the private landowner. Despite the high private cost of being forced to construct a system capable of the fire suppression or drinking water, the regulations do not dedicate anything to the public, and primarily benefit the homeowner. The regulations provide safety, fire prevention, a healthy water supply, etc. While the public may benefit from the mitigation of fire damage by enforcing the fire code, the larger benefit falls upon the owner of the property.

It is because of this private benefit and purpose that the regulations involved do not amount to regulatory takings. There is little public benefit derived. The high cost does create great inconvenience for the property owner, but the regulations most likely do not amount to a “virtual taking” of the property. The private systems which will qualify to fulfill the conditions may be properly imposed on building approval in the Brighton Estates subdivision. The private interest associated with the cost of construction is not a public burden that the private owner is being asked to bear; and it is a way to ensure the safety and health of the private landowner.

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Conclusion

Wasatch County can properly impose requirements for building permit approvals as long as they have been enacted by state law or the county ordinances. Both the fire suppression and culinary water requirements meet this standard and can be enforced.

The power to impose the requirements is not forfeited simply because of previous inaction. The police power is in force and the County may impose the conditions. There is no evidence in the information provided for this Office to determine that PCCARG has received inconsistent treatment from other similarly-situated properties. To the contrary, the evidence provided indicates that PCCARG is being treated the same as other similarly-situated properties in the area.

Lastly, the Penn Central analysis, as adopted and applied in Utah law, points these regulations to be viewed as possible regulatory takings. The nature and purpose of the regulation, combined with the large private benefit lead to a conclusion that the fire code and culinary water requirements are not regulatory takings and thus may be properly imposed on new development.

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Brent N. Bateman, Lead Attorney

Office of the Property Rights Ombudsman

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NOTE:

This is an advisory opinion as defined in § 13-43-205 of the Utah Code.  It does not constitute legal advice, and is not to be construed as reflecting the opinions or policy of the State of Utah or the Department of Commerce.  The opinions expressed are arrived at based on a summary review of the factual situation involved in this specific matter, and may or may not reflect the opinion that might be expressed in another matter where the facts and circumstances are different or where the relevant law may have changed. 

While the author is an attorney and has prepared this opinion in light of his understanding of the relevant law, he does not represent anyone involved in this matter.  Anyone with an interest in these issues who must protect that interest should seek the advice of his or her own legal counsel and not rely on this document as a definitive statement of how to protect or advance his interest. 

An advisory opinion issued by the Office of the Property Rights Ombudsman is not binding on any party to a dispute involving land use law.  If the same issue that is the subject of an advisory opinion is listed as a cause of action in litigation, and that cause of action is litigated on the same facts and circumstances and is resolved consistent with the advisory opinion, the substantially prevailing party on that cause of action may collect reasonable attorney fees and court costs pertaining to the development of that cause of action from the date of the delivery of the advisory opinion to the date of the court’s resolution.

Evidence of a review by the Office of the Property Rights Ombudsman and the opinions, writings, findings, and determinations of the Office of the Property Rights Ombudsman are not admissible as evidence in a judicial action, except in small claims court, a judicial review of arbitration, or in determining costs and legal fees as explained above.

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Endnotes 


[1] Electrical service is evidently available.

[2] For example, the International Fire Code requires that a minimum of 1000 gallons per minute for two hours be available for fire suppression.   Usually, a fire hydrant satisfies this requirement,

[3]Wasatch County requires Health Department approval for a private drinking water system and fire suppression must adhere to the International Fire Code.

[4] The International Fire Code has been adopted by Wasatch County and the State of Utah, and has been in place for several years. 

[5] See Utah Code Ann. § 53-7-106(1); Wasatch County Code § 16.21.13

[6] The Wasatch County Health Department has enacted Rule 00-3 which governs issuance of building permits. Rule 00-3-A(3) lists the methods for verifying an approved culinary water supply exists. This may be through “a copy of a well permit or well permit application from the state engineer’s office…In areas where knowledge of successful wells is not available, construction of the well, the firm yield and water quality tests will be required before a private water source will be accepted.”

[7] See Alta v. Ben Hame Corp., 836 P. 2d 797, 797 (1992) (“[C]ounty administrative officials may not forfeit the power of enforcement by disregarding an ordinance.”)

[8] Utah County v. Young, 615 P. 2d 1265, 1267–68 (1980).

[9] See Kartchner, 552 P. 2d 136

[10] Utah Count v. Baxter, 635 P. 2d 61, 65 (1981).

[11] This Office has issued two opinions regarding fire suppression and culinary water requirements between Brighton Estates and Wasatch County.

[12] See Shea/Wasatch County, Advisory Opinion No. 55, Office of the Property Rights Ombudsman, November2008 (examining as the fire requirement as an exaction); Deepwater/Wasatch County, Advisory Opinion No. 87, Office of the Property Rights Ombudsman, June 2010 (clarifying that regulation should be analyzed as a regulatory taking and not an exaction because the requirement does not require dedication to public use).

[13] Pennsylvania Coal v. Mahon, 260 U.S. 393, 415 (1922).

[14] See Agins v. Tiburon, 447 U.S. 255, 260–61 (1980).

[15] Penn Central Transportation, 438 U.S. at 125.

[16] See Penn Central Transportation, 438 U.S. 104 (1978).

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