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(Editor's Note: this article is the first in a series of three on Utah zoning law. The second article is entitled Utah Zoning Law: Enforcement and the third is
entitled Utah Zoning Law: Appeals.)
Introduction1
Enabling Acts. The Municipal Land Use Development and Management Act empowers cities and towns in Utah to divide or
"zone" the territory within their boundaries into districts and to regulate land uses therein. The County Land Use Development and Management Act
similarly empowers counties. Subject, of course, to constitutional limitations, these two acts - commonly referred to as "enabling" acts - are the
controlling law of zoning. They are worth reading: an experienced land use planner (and a non-lawyer) once commented that he could often out-maneuver local lawyers
in zoning matters simply because he read and understood the applicable enabling act and they didn't.
Zoning Ordinance. The enabling acts permit cities and counties to use their law-making power to adopt a "zoning ordinance" consisting of a map and
a text. The map illustrates the territory of the city divided into districts which have names such as "Agricultural (A-1)," "Single Family
Residential (R-1)" or "Neighborhood Shopping Center (SC-1)." The text describes what can and cannot be done within each of these districts. For
example, in an R-1 zone, as the name suggests, single family residences are allowed and more intensive uses such as duplexes and four-plexes are prohibited. It is
left to the city or county to decide on the names for the zoning districts and the uses allowed within each of these districts - these are not prescribed in the
enabling acts.
The Planning Commission
Organization and Procedure. The process of adopting a zoning ordinance starts with a planning commission, which is created
by the governing body and is required for the exercise of zoning powers. (Commission members are local residents who are appointed by the governing body and
usually serve without compensation.)
Powers and Duties. A planning commission has no law-making authority and, in general, it performs only the planning and administrative functions specified by
the governing body. There are, however, three things it must do:
- General Plan. The planning commission must prepare "a comprehensive, long-range general plan" for the development of land in the city, which
it recommends to the governing body. This general plan is the foundation on which the zoning ordinance is built. Any subsequent amendments to the general plan
must likewise be routed through the planning commission for its recommendation.
- Zoning Ordinance. The zoning ordinance (map and text) must be reviewed by the planning commission before adoption into law by the legislative body.
Amendments must be reviewed by the planning commission.
- Subdivisions. Any subdivision ordinance must be recommended by the planning commission. Amendments to the subdivision ordinance must also be reviewed by
the planning commission. A subdivision plat may not be filed or recorded until the officer or body designated to approve subdivision plats has received the
recommendation of the planning commission.
In the processes above, the governing body cannot proceed without first receiving the recommendation of the planning commission. However, the planning commission is
completely subordinate because the governing body can modify any of the recommendations before enacting them into law (the general plan, zoning ordinance and
subdivision ordinance)2 or approving them (subdivision plats).
An example of the administrative work that may be handled by a planning commission (if authorized by the governing body) is holding a public hearing and deciding
whether to grant a conditional use permit. In Stucker v. Summit County,3 the local ordinance required a proposed use to be compatible with neighboring uses. Because compatibility was at issue, the ordinance uthorized the planning commission to hold hearings and make a decision resolving the issue. The ordinance provided:
When a developer and affected property owners cannot reach a consensus of opinion regarding compatibility of the proposed land use, the Planning
Commission holds a public hearing prior to making a decision and listens to the concerns of all affected property owners and interested parties regarding the
proposed project's compatibility.4
Although a planning commission (like that above) may hold a hearing and consider the opinions of local land owners, it crosses the line when it allows itself to be
controlled by what the Utah Court of Appeals has characterized as "public clamor." In Davis County v. Clearfield City,5 the Utah Court of Appeals noted: "[This] clamor is typified by the curious action taken at the Planning Commission hearing, where citizens in attendance were asked to vote on the application. Only one person voted for the facility and all others in the audience voted against it."6 (Application denial was later overturned on appeal.)
The Zoning Ordinance
Legislative Action. The zoning ordinance (map and text) is adopted as law by the governing body. This legislative action is in
derogation of the common law and is an exercise of police power. It is traditional to say that police power is exercised to promote the health, safety, morals and
general welfare of the community. As long as the legislative judgment of the city council is within reasonable bounds, the courts usually will not overturn it. As
the Utah Court of Appeals stated in Sandy City v. Salt Lake County7:
It is well established in Utah that "courts of law cannot substitute their judgment in the area of zoning regulations for that of the
governing body." Instead, the courts afford a comparatively wide latitude of discretion to administrative bodies charged with the responsibility of
zoning, as well as endowing their actions with a presumption of correctness and validity, because of the complexity of factors involved in the matter of zoning
and the specialized knowledge of the administrative body. Thus, the courts will not consider the wisdom, necessity, or advisability or otherwise interfere with
a zoning determination unless "it is shown that there is no reasonable basis to justify the action taken."8
"Spot" Zones. There is a theoretical limitation on the power of the governing body to adopt a zoning ordinance - in this case the zoning map. The
enabling act requires that territory on the map be divided into districts, and the Utah Supreme Court has recognized that such language seems, by definition, to
prohibit a division of territory into very small pieces or islands which are sometimes referred to as "spot" zones. Although seemingly clear in concept
about spot zoning, the Utah courts have in practice deferred to the discretion of local governing bodies. The result is that the courts have thus far been
unwilling to acknowledge the existence of a prohibited "spot" zone, even when the zoning district is no bigger than a commercial corner lot.9
Permitted Uses. For each zoning district there is language in the text which describes the uses which are permitted. These are so-called
"permitted" uses, and that language is usually accompanied by language stating that no other uses are allowed.
For example, an R-1 (single family
residential) district might be accompanied by language in the text which allows the construction and use of a residence for a "single family," and no
other uses. A well-crafted zoning text will include a list of definitions. In this case, the text should include a definition for "family." If there is
not a "family" definition, the absence thereof will lead to disputes. (For example, are an unmarried man and woman living together a "family?"
If the answer is yes, are two university students living together a "family?" If the answer to that is yes, are three, five or seven university students
living together a "family?" And so on.)
Conditional Uses. Increasingly, the uses allowed in a district are uses known as "conditional" uses. The city and county enabling acts define a
"conditional use" as "a land use that, because of its unique characteristics or potential impact on the [municipality/county], surrounding
neighbors, or adjacent land uses, may not be compatible in some areas or may be compatible only if certain conditions are required that mitigate or eliminate the
detrimental impacts."
For example, the governing body may create a Professional Office (P-O) zone and in the zoning text allow a convenience store (including the sale of gasoline) as a
conditional use. The (abbreviated) text might be something like this:
21.15.000 Conditional Uses. A convenience store (including the sale of gasoline) is permitted only on the following conditions:
(1) that the building lot shall not be less than 30,000 square feet in size,
(2) that Utah Department of Transportation approval be obtained for any ingress or egress onto a state road, and
(3) that the applicant consent to any
additional term or condition necessary to prevent harm to the health, safety or general welfare of persons working or residing in the vicinity.
At an imaginary hearing on the question of issuing a conditional use permit for a convenience store (including the sale of gasoline) there is testimony that noise
and light from the convenience store will cause problems at a nearby office building. Therefore, when the permit is issued, it contains the following requirements:
"a fence not less than six feet high shall be maintained along the east convenience store boundary line. Parking lot lighting shall not illuminate past the
east boundary line." The permit is subject to these conditions.
Elderly and Persons with a Disability. The enabling acts provide special protection for residential facilities for the elderly and for persons with a
disability. Implicit in this protection is the assumption that cities and counties, under pressure from unhappy residents,10 may not voluntarily authorize the use of such facilities. Thus, the enabling acts provide that each city and county "shall adopt" ordinance provisions that permit the use of facilities for the elderly and persons with a disability which meet standards described in the enabling acts.
Subdivision Regulations
Subdivision Plats. A subdivision plat is a map illustrating the division of real estate into building lots, open spaces,
roads, utilities and the like. Property described in a subdivision plat is sold by reference to the plat. Thus, the deed for a building lot described in a
subdivision plat might contain a description something like this: "Lot 10, Plat A, Elmwood Subdivision, according to the plat on file with the Urbana County
Recorder." The enabling acts place the platting process within the control of cities and counties, and land which must be platted cannot be sold or developed
until a subdivision plat is approved.
Cities and counties guard the subdivision plat approval process jealously because it is by controlling this process that they ensure that each new development fits
into the overall plan for the city. Through this control a city or county enforces a variety of exactions such as connection fees, impact fees, dedications of
land, and fees in lieu of dedications of land, all of which are part of the conditions of approval.11 (For example, the plat will not be approved if the developer does not install - at the developer's expense - roads, sidewalks, sewer and water lines, and electric utilities.12)
"Subdivision" Defined. Meeting the demands of a city or county in the platting process can be very expensive; thus, some land owners try to avoid
the process. That raises the question: when can real estate be sold using a simple "metes and bounds" description, and when must the subdivision platting
process be followed? The answer is that cities and counties may require land to be platted if the land is in a "subdivision" as defined in the enabling
acts. The word "subdivision" has a comprehensive definition. It means, in general, any division of land into two or more smaller pieces for the present
or future purpose of "offer, sale, lease, or development."
The "subdivision" definition has several exceptions. Of particular significance in counties is the exception that "a bona fide division or partition
of agricultural land for agricultural purposes" is not within the subdivision definition. The effect of this exception is that land which is divided for
agricultural purposes is not subject to platting requirements. If such a division of land is not subject to platting requirements it is not subject to the
requirements and exactions normally associated with the subdivision process. Historically, counties have had difficulty with abuses in relation to this exception.
As so-called "agricultural" parcels get increasingly smaller through the process of division, it becomes apparent that the real use of the resulting
parcels is non-agricultural (for example: a house and three acres for a horse). To avoid arguments about when a land use has ceased to be truly
"agricultural," and thus subject to the subdivision process, some counties place minimum standards for what is a "bona fide division of agricultural
land" in their subdivision ordinance.
Zoning Procedure
Follow the Ritual. The adoption of zoning ordinance provisions requires that the governing body follow a specific ritual of
notices and hearings. Unfortunately, some cities and counties (often smaller ones) sometimes fail to follow the ritual and the result is that in a moment of crisis
they find their zoning ordinance is invalid. (Knowing this, experienced land use litigators always check the public record, looking for a technical defect that
will give them an easy win.)
Some years ago the City of West Jordan failed to follow the ritual. In Call v. City of West Jordan,13 the city adopted an impact fee pursuant to its power to enact subdivision ordinances; however, evidence showed that the city failed to conduct a required public hearing. Nevertheless, the city argued that the public hearing requirement was satisfied "because the ordinance was adopted at a regularly scheduled city council meeting which was open to the public." The Utah Supreme Court disagreed and invalidated the impact fee ordinance:
[W]e hold that because the statute calls for a public hearing our legislature contemplated something more than a regular city council meeting
held, so far as the record here discloses, without specific advance notice to the public that the proposed ordinance would be considered. Notice, to be
effective, must alert the public to the nature and scope of the ordinance that is finally adopted. Failure to strictly follow the statutory requirements in
enacting the ordinance renders it invalid.14
Standard for Review. The process of changing the zoning text or map is a legislative process and should be distinguished from administrative
processes such as, for example, the approval of a conditional use permit or a planned unit development. In Bradley v. Payson City Corporation15 the Utah Court of Appeals noted that judicial review of legislative acts "is highly deferential to the municipality's decision." The legislative act of a municipality will be upheld as long as the decision is "reasonably debatable."
Initiative/Referendum. The processes of initiative or referendum may only be used to alter a zoning ordinance when the change is a significant
change of zoning policy; they cannot be used to make otherwise routine zoning amendments. Article VI, section 1 of the Utah Constitution explicitly authorizes the
use of initiatives and referenda by voters "of any legal subdivision of the state." However, the Utah Supreme Court has held that some decisions by a
legislative body, although cast in the form of a legislative act, are in substance an administrative decision. Thus, for example, in Wilson v. Manning,16 the plaintiffs were refused the use of a referendum with respect to their objection to the rezoning of ten acres of land from residential to commercial. According to the court:
This ruling does not mean that an amendment to a zoning ordinance can never be the subject of a referendum. Some amendments can constitute such a
material variation from the basic zoning law of the governmental unit as to constitute, in effect, the making of a new law rather than merely, as this Court
[has] said . . . "implementing the comprehensive plan and adjusting it to current conditions."17
This case law has been codified and the statute regulating initiatives and referenda refers to a routine zoning amendment as an "individual
property zoning decision" and prohibits the use of initiatives and referenda to accomplish those decisions.18
Temporary Regulations (Moratoria). There is no provision in the acts for a moratorium on development as such, but in the case of a
"compelling, countervailing public interest," the legislative body is permitted to adopt temporary zoning regulations without a public hearing. These
temporary regulations may operate as moratoria because they may, for up to six months, "prohibit or regulate the erection, construction, reconstruction, or
alteration of any building or structure or subdivision approval." The authors of this provision were understandably reluctant to use the word
"moratorium" or to extend the restriction beyond six months because the United States Supreme Court has held that if zoning regulations "deny a
landowner all use of his property," even temporarily, the landowner may have a cause of action for compensation.19
Official Map
Related to subdivision plats and exactions associated with the approval and filing of subdivision plats is the "official
map." An official map should not be confused with the map which accompanies the text of the zoning ordinance and shows the zoning classification (e.g.,
residential, commercial, industrial, etc.) which applies to land in a city or a county.
Prior to 1991, the city and county enabling acts contemplated the adoption of an "official map," which showed the location of existing and
future roads. Without a formal "taking" (or the payment of compensation) the pre-1991 acts empowered a legislative body to place significant restraints
on the development of land over which it proposed to build a road. Keeping in mind the distinction between an official map and the zoning map, the enabling acts
continue to allow cities and counties to adopt an official map, but now that map "may not be used to unconstitutionally prohibit the development of property
designated for eventual use as a public street."
Footnotes
1.
Because of space constraints, only cursory endnotes are used. Unless otherwise indicated, all statutes quoted or referred to are found in The Municipal Land Use Development and Management Act (Utah Code Ann. ¤ 10-9-101) or the County Land Use Development and Management Act (Utah Code Ann. ¤ 17-27-101). Case references are limited to identifying significant cases and identifying the source of quotations.
2. See Gardner v. Perry City, 994 P.2d 811 (Utah App. 2000).
3. 870 P.2d 283 (Utah App. 1994).
4. Id. at 285 (emphasis added).
5. 756 P.2d 704 (Utah App. 1988).
6. Id. at 711-12 n. 9.
7. 794 P.2d 482 (Utah App. 1990).
8. Id. at 485-86 (citations omitted).
9. See Marshall v. Salt Lake City, 141 P.2d 704 (Utah 1943).
10. See generally Bangerter v. Orem City Corp., 797 F. Supp. 918, 920 (D. Utah 1992).
11. See generally Michael J. Mazuran, Evolution of Real Estate Development Exactions in Utah, Utah Bar J., Aug.-Sept. 1990, at 11.
12. See generally Home Builders Ass'n v. City of North Logan, 983 P.2d 561 (Utah 1999).
13. 727 P.2d 180 (Utah 1986). See also, Hatch v. Boulder Town Council, 2001 UT App. 55 (Utah App. 2001).
14. Id. at 183 (emphasis added).
15. Bradley v. Payson City, 413 Utah Adv. Rep 13 (Utah App. 2001).
16. 657 P.2d 251 (Utah 1982). See also Citizen's Awareness Now v. Marakis, 873 P.2d 1117 (Utah, 1994).
17. Wilson v. Manning at 254.
18. Utah Code Ann. ¤¤ 20A-7-101 and102.
19. See First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 318 (1987).
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