Lately, I’ve been catching up on many property law topics. When I read Utah court cases on the subject, it’s amazing how many property disputes have arisen and been argued by our very own attorneys out of Wayne and Sevier Counties at the state appellate and supreme courts. We should be proud of our regional expertise because private property law is an important foundation of our democracy. My next few articles will focus on private property law issues including zoning, eminent domain, adverse possession, boundary disputes, and right of ways. Let’s start with zoning and ordinances.
Cities and counties are zoned and have ordinances, or standards, that apply to each zone. For instance, in a commercially zoned area, there may be signage ordinances. Setback distances for houses or fencing heights are also ordinances. When you get a building permit, if it's required, then you are stating you will follow the county or city ordinances.
Zoning includes various types of commercial, residential, agricultural, and other types of zones where specific types of development may occur. For example, agricultural zoning may only allow parcels greater than five acres and prohibit subdividing parcels into less than five acre lots.
Within a zone, there are permitted, conditional, and denied uses. For example, we live on the proverbial farm. We decide we want to develop the farm and build high rise condos instead of ranching. Our neighbor promptly spray paints his cows to publicly contest the idea. We go to our county to get the building permit. However, the zoning use for agriculture permits no less than five acres per residence. Conditionally, the county allows up to one residence per half acre. And the county denies multi-residential housing in agriculturally zoned property. What should we do?
Well, we cannot build our condos under the current zoning rules. Our neighbor will be relieved. We can ask the county for a conditional use permit to build multiple residences up the half acre density, but to do so will include caveats such as impact fees to provide county services to the development, building height restrictions to not damage the aesthetic view of the area, and could even require firewise preparedness to avoid wildfire tragedy.
If we are determined to build our condos, we can ask the county for a variance. Variances would allow us to challenge a zoning designation if we believe the rule creates an unreasonable hardship to the particular circumstance of the property. However, variances cannot change a prohibited use, such as multi-residential housing on agriculturally zoned property.
So, what should we do? We can ask the commissioners to change the zoning map and uses under the agriculture category. This is a political decision and with it comes the weight of policy. Alas, the commissioners agree with my neighbor as to the future vision of the county. The cows’ message worked and our idea needs revision to meet our community’s general plan and vision.
Disclaimer. As always, my column is not legal advice, instead merely insight into the law and legal profession. If you have a general question about the law or legal profession, please email me at email@example.com or call 435.610.1431.