Advisory Opinion #64

Download the PDF version (64).

Parties: Leon R. Day and Sanpete County

Issued:  March 11, 2009

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TOPIC CATEGORIES:

E:  Entitlement to Application Approval (Vesting)

J:  Requirements Imposed Upon Development

R(ii): Other Topics (Subdivision Plat Approval)

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A county may require that the Property Owner comply with its subdivision ordinance, because the parcel was not created by a valid subdivision.  The parcel is not exempt from subdivision regulation, even though it was originally part of a larger parcel that predated a county’s subdivision ordinance.

 

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

Compliance With Local Subdivision Ordinances

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Advisory Opinion Requested by:                  Leon R. Day

Local Government Entity:                              Sanpete County

Applicant for the Land Use Approval:          Alta Terra Ranch, LLC

Project:                                                            Single Family Residences

Date of this Advisory Opinion:                      March 11, 2009

Opinion Authored By:                                     Elliot R. Lawrence, Attorney,

                                                                         Office of the Property Rights Ombudsman

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Issues

  1. Does a parcel that originally qualified for an exemption from certain zoning requirements still qualify for the exemption if the property description for the parcel changed after the effective date of the exemption?
  2. May the County require that a single parcel which has not been approved as a lot comply with subdivision ordinances? 

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Summary of Advisory Opinion

The Parcel in question was once part of a larger property that did qualify as a residential lot under an exemption granted by the County’s Zoning Ordinances.  That exemption applied to lots recorded prior to October 6, 1981.  The Parcel’s current description was recorded after that date, and thus no longer applies.  However, the Parcel meets the County’s requirements as a residential lot, so the exemption is not necessary. 

It does not appear that the Parcel was approved as a lot by the County’s land use authority.  The Parcel is also not exempt from subdivision regulation, because it is being proposed as a residential lot, not for agricultural purposes.  Therefore, the County may enforce its subdivision ordinance and require that the Parcel be approved as a newly-created lot.

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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.  The 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 Leon R. Day on December 31, 2008.  A copy of that request was sent via certified mail to Claudia Jarrett, County Commission Chair for Sanpete County.  The County received the request on January 2, 2009.  The County submitted a response to the Office of the Property Rights Ombudsman, which was received on January 27, 2009.  Replies were submitted via email by Mr. Day, which were received on February 4, 2009.  SanpeteCounty submitted a reply to Mr. Day’s emails on February 5, 2009.

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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 December 31, 2008 with the Office of the Property Rights Ombudsman by Leon R. Day.
  2. Response from Sanpete County, submitted by Ross Blackham, CountyAttorney, received on January 27, 2009.
  3. Reply submitted by Mr. Day, received February 4, 2009.
  4. Reply submitted by the County, received February 5, 2009.

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Background

Alta Terra Ranch, LLC owns about 5.5 acres of property (the “Parcel”) located northwest of Fairview, Utah.  The property has been used for agricultural production for many years.  The property is zoned Residential-Agricultural (RA2), which allows residences, and has a minimum lot size of 1 acre. The Parcel was originally part of a 40-acre tract, which was acquired years ago by Leon Day and his brother.  That property was divided, with each brother taking 20 acres.[1]  In 1980, Mr. Day split off approximately 2.35 acres from his parcel, and constructed a home.  The remaining 16.5 acres were used for agricultural production.  This split was created by a “metes and bounds” description on the property deeds, which were recorded with the Sanpete County Recorder. 

In October, 1981, Sanpete County adopted a zoning ordinance regulating land in unincorporated areas within the County.  The current zoning ordinance establishes six zones, but the ordinance recognizes that parcels in existence on the effective date of the 1981 zoning ordinance may be used for residential purposes.  Each of the six sections of the County Code which regulates one of the zoning designations carries this Note:  “Any parcel recorded before October 6, 1981 and, for development purposes, meets each of the development conditions specified within this code, may be used for residential purposes.” (The “1981 Exemption”).  As of October 6, 1981, Mr. Day owned a 16.5 acre parcel, and the 2.35 acre homestead.  The County road remained unchanged, and occupied 2.15 acres.

In 1998, Mr. Day sold a 5.24 acre portion of the 16.5 acre parcel, again creating the lot by recording a metes and bounds description.[2]  This left Mr. Day with 11.26 acres, plus the 2.35 acre homestead.  In 2000, Mr. Day transferred ownership of the 11.26 acre parcel to Alta Terra Ranch LLC.[3]  The deed recorded in 2000 for that parcel retained the original property description, excepting the two parcels which had been split from it, and “any portion in county road.”  In 2007, Mr. Day and his brother proposed a boundary adjustment of their two parcels.  The proposal would realign the boundaries of the two parcels, leaving his brother with a 27.5-acre parcel, and leaving 5.5 acres from Mr. Day’s original parcel, which was to be sold as a building lot.  That proposal was abandoned when the County indicated that it would not recognize the changes to the parcels, and would not issue a building permit unless the County’s subdivision process was followed. 

The brothers did subdivide their properties in 2007, by applying for a “minor” subdivision and getting approval from the County.  This subdivision, called “Azariah Ranch,” created two 5.5 acre lots from a portion of Mr. Day’s parcel and a portion of his brother’s property.  One of the lots has been sold to a third party, and the other is owned by Mr. Day’s brother.  The subdivision shrank Mr. Day’s remaining parcel down to approximately 5.76 acres. That Parcel retains the original parcel’s tax identification number issued by the County Assessor’s Office.  The materials submitted for this Opinion do not indicate that the remaining Parcel was approved as a lot along with the Azariah Ranch subdivision.

Mr. Day contends that the remaining Parcel is entitled to a building permit, because it is the remnant of the original property description which was recorded prior to October 6, 1981.  The parcel meets the minimum size for parcels in that zone (1 acre), and is suitable for residential use.  The County, on the other hand, maintains that the Parcel has been changed, and must conform to current zoning and subdivision requirements.  Specifically, the County wants Mr. Day to receive approval for a “one-lot subdivision,” evidently to recognize and confirm the boundaries of the Parcel through a formal approval process.  Mr. Day objects to that requirement, because it imposes additional cost and difficulty on the approval process.[4]

The County maintains that the Parcel is not the same lot that existed on October 6, 1981, because since that date it has been divided and altered twice (in 1998 and 2007), and new descriptions were recorded.  Thus, the “1981 Exemption” should not apply.  Accordingly, the County does not recognize the remaining 5.76 acre Parcel as a legally-created lot.  The County contends that Mr. Day would need to follow the County’s subdivision approval process, even if the parcel is only one lot, in order to gain approval for a building permit.  The County notes, however, that there is no dispute that Mr. Day may divide this parcel into as many as five lots, because the minimum lot size for the current zoning designation is one acre. 

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Analysis

I.                   The “1981 Exemption” Does Not Apply to the Parcel, Because the Current Property Description was Recorded after October 6, 1981.

Because the current property description for the Parcel was recorded after 1981, it does not qualify for the exemption provided in the County’s zoning ordinance.  That exemption provides that “[a]ny parcel recorded before October 6, 1981 and, for development purposes, meets each of the development conditions specified within this code, may be used for residential purposes.”  Sanpete County Ordinances, § 14.40.020.  Thus, only parcels which had been recorded prior to that date were eligible for the exemption.

In May of 2000, a quit-claim deed was recorded which described property which would include the current Parcel.  This deed transferred ownership from Leon and Lorele Day to Alta Terra Ranch.  In 2007, a portion of the property described in the 2000 quit-claim deed became part of the Azariah Subdivision, which was approved by the County.   The 1981 Exemption only applies to parcels “recorded before October 6, 1981.” The Parcel is not eligible for the Exemption, because although a parcel with that tax identification number existed in 1981, that parcel differed from the Parcel that exists today. The description of the Parcel that exists today was first recorded after 1981.  Even though the Parcel includes property that was part of a parcel that had been recorded prior to 1981, the current description of the Parcel was recorded after that date.  Thus, the Parcel is subject to the County’s current zoning ordinances.[5]

The Property Owners claim that the Parcel still qualifies for the Exemption because it is the “remnant” or “remainder” of the original property.  However, this approach is not consistent with the language of the 1981 Exemption, which only applies to parcels recorded before October, 1981.  Nothing in the language of the exemption recognizes “remnants” of qualifying parcels recorded after that date.  Were it otherwise, every lot in the County that was created from a parcel that existed on October 6, 1981 would be forever eligible for the Exemption, and the County’s zoning ordinance would be reduced to little more than an unenforceable policy statement.

Furthermore, the 1981 Exemption only provides that a qualifying parcel “may be used for residential purposes.”  The County does not question that the Parcel owned by Alta Terra Ranch may be used for residential purposes, provided the property owners comply with the County’s zoning requirements.  In other words, the property owners do not need the 1981 Exemption in order to obtain a building permit, because the Parcel may be able to satisfy the County’s requirements for a residential lot.

II.        The Parcel Does not Appear to Have Been Created by a Proper Subdivision, so the Property Owner Must Comply with the County’s Subdivision Ordinance.

Because the Parcel does not appear to have resulted from a proper subdivision, the Property Owner must obtain approval and recognition for the Parcel from the County’s Land Use Authority.  According to Utah State law, whenever land is subdivided, the owner must provide an accurate plat describing the boundaries of all lots, streets, and other properties.  The plat must be approved by the local government.  Utah Code Ann. § 17-27a-603; see also id. § 10-9a-603 (applicable to cities).   Lots which are not approved are not considered “legal,” and a local government may require compliance.[6]

The Parcel, in its current configuration, is the result of two divisions of the original property.  In 1998, a portion of the original property was sold, evidently without obtaining approval from the County.  In 2007, another portion of the original property was carved off and included in the Azariah Ranch subdivision, which was approved by the County.  However, that approval appears to have been limited to the Azariah Ranch property only, and did not include approval of the remainder of the property (the Parcel) as a legally created lot.  Since the Parcel was not approved as a separate lot, the County may require compliance before it approves any building permits.

Since the Parcel is being proposed for use as a residential lot, it is not exempt from platting requirements.  A lot created by a division of agricultural land is exempt from plat requirements of the Utah Code only if it: (a) Qualifies as agricultural land, (b) Meets the minimum size requirement of local land use ordinances, and (c) Is not used and will not be used for any non-agricultural purposes.  See id. § 17-27a-605(2)(a).  Mr. Day proposes to use the Parcel as a building lot. In fact, this issue arose when he sought a building permit.  This is a non-agricultural use, and therefore, the Parcel is not exempt from plat requirements.  The County may therefore require compliance with its subdivision ordinances.

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Conclusion

Although the Parcel was originally included in a larger lot that was recorded prior to October, 1981, it does not qualify for the exemption provided in the Sanpete County Ordinances.  The current description of the Parcel was recorded after 1981, and so the exemption cannot apply.  However, the Parcel may be used for residential purposes, so the exemption is not needed.

Since the Parcel in its current configuration does not appear to have been created by a proper subdivision, the County may require compliance with its subdivision ordinances.  Unless exempted, a lot must be approved by a local land use authority.  The Parcel appears to have been “left over” after a subdivision was approved in 2007, but there is nothing that indicates that the County’s land use authority also approved the Parcel.  Moreover, the Parcel is not exempted from subdivision requirements, because the use proposed is not agricultural.  Because of this, the County may require that the Parcel be approved as a newly-created lot (or it could be divided into smaller lots).  This may be carried out through the County’s “minor subdivision” process. 

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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] A county road traverses Mr. Day’s parcel.  A deed recorded in 1979 describes Mr. Day’s parcel as the “N1/2 of the NW1/4 of the SE1/4 of Sec. 34, T13S, R4E, SLM LESS 2.15 ac. in County Road.”  This left 18.85 acres for Mr. Day.

[2] This division was apparently a “bona fide division of agricultural land for agricultural purposes,” and was thus exempt from the County’s subdivision ordinance.  See Utah Code Ann. § 17-27a-103(48)(c)(i) (The same language was in effect in 1998, when the sale occurred.)

[3] Mr. Day is the registered agent for Alta Terra Ranch.

[4] The County indicates that the process may be accomplished as a “minor” subdivision, which requires fewer public hearings.

[5] The County interprets the exemption as allowing residential uses on any parcel created prior to October, 1981, regardless of whether it complied with size restrictions.  Such parcels would still need to meet other development conditions.  If a qualifying parcel was changed after 1981, it became subject to the County’s zoning ordinances. 

[6] See Grand County v. Rogers, 2002 UT 25, 44 P.3d 734.  In that case, a property owner divided his property by “metes and bounds descriptions” without proper subdivision approval from the county.  He sold several lots, and the deeds were recorded by the county recorder.  The property owner maintained that the county could not enforce its subdivision ordinance, because the deeds had been accepted and recorded.  The Utah Supreme Court rejected that argument, and held that the county could require compliance with the subdivision ordinance. 

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