Utah Court of Appeals
2013 UT App 119 (Click for full text of Opinion)
May 9, 2013
The Utah Court of Appeals upheld a decision of Kane County’s Board of Adjustment to deny a building permit to a property owner. The Board had concluded that the property in question had been improperly subdivided, and was thus ineglible for a building permit.
The Property was part of a larger parcel that was originally divided in 1972. The Property itself was apparently created later by combining smaller lots from the 1972 subdivision. There is no evidence that the subdivision had been approved by the County, and a plat was never recorded, and the only evidence is a preliminary map drawn up by the parcel owner in 1972, which does not show the Property as a lot (indicating that it had been created after the 1972 subdivision). The County states that it was not aware of the Property until the owner applied for a building permit in 2012.
The Property’s owner claimed that the 1972 division was proper, because the County’s ordinances at that time seemed to exempt agricultural lands from subdivision ordinances. Since the original subdivison was proper, all lots in that subdivision enjoy “legal” status. However, it appears that the parcel was not eligible for that exemption (the parcel has never been zoned “agricultural,” but has been used for grazing and other agricultural purposes). Furthermore, the1972 County ordinance required lot to be at least 10 acres, and some of the lots created from the original parcel were less than 10 acres (the Property is 40 acres). Citing a 1972 letter from the County Attorney’s Office, the Property owner claimed the exemption from the subdivision ordinance because the Property is more than 10 acres and is used for agricultural purposes.
If the Property were exempt from subdivision regulation, the owner then argued that the Property should be “grandfathered” as a sort of “nonconforming lot.” The Utah Code does not address nonconforming lots, and there is no Utah case dealing with that issue, so the Property owner applied the logic of the nonconforming use statute to the Property. The Court of Appeals considered applying nonconforming use princples to subdivisions and lots, but declined to express an opinion on the issue.
Instead, the Court concluded that the Property was not eligible for that status, because it had been improperly created after the original subdivision. Even if it is presumed that the 1972 subdivision was proper, that would only mean that the lots that had been properly created by that subdivision could be granted legal status; any subsequent changes would be required to comply with subdivision standards in place at the time of the changes. Since it was clear that the Property had been improperly created after the 1972 subdivision, it was an improper subdivision, and not eligible for the nonconforming status proposed by the Property owner. Although the Court did not express a new rule applying nonconforming principles to noncomplying lots, it evaluated the issue, and seemed to favor its eventual adoption.
The Court’s discussion on a different challenge to the Board’s decision is also noteworthy. The Property owner objected to the decision because the Board’s written opinion had been prepared by the County Attorney’s Office. The Court explained that prevailing parties often prepare final orders. In addition, the draft opinion was submitted to the Property owner for review, and was ultimately approved by the Board, not by County staff. In short, the Court concluded that the final decision could be drafted by staff members, even if there is a strong likelihood that the decision will be appealed.