As a Lake Shore property owner, I was delighted to see the Deseret News carry two articles within a week on the proposed zoning changes in Utah County.
However, I did find a few details in the articles that were potentially misleading. The articles also seemed to side with the interests of large agribusiness and powerful government over those of the "little guy." It is mainly because of the little guy's concerns that Utah County commissioners set in motion the current review in the first place.To put things into perspective, let me offer the following.
Fact 1: Allowing five-acre home sites in the existing A-1 zone, as recommended by the private firm handling the review, would not make the zone "residential" for the first time. Despite its agricultural designation, this 40-acre zone already permits residential use of farmlands, for all intents and purposes.
According to a senior zoning official, the 40-acre requirement was specifically enacted to enable non-farmers to build residences in the greenbelt. This appears plausible, since, to get a building permit, a landowner today needs only to be engaged in token agricultural activity - with no measurable criteria set for assessing compliance.
Serious farming is required only of "secondary caretakers" (farm hands), who are generally restricted to trailers. Unlike other persons who live in the zone, these caretakers must earn most of their income from farm work.
The result is a de facto 40-acre residential zone. The main complaint of those who want to lower the requirement is that the acreage provision discriminates against the less well-to-do and constitutes a no-growth policy. As things stand, only the wealthy can afford to build in the zone.
Fact 2: When the 40-acre requirement took effect in 1983, it likely violated landowners' property rights.
Prior to 1983, the A-1 zone required just one acre. To build on his land, an individual needed only to show that he was a "bona fide" farmer, using formulas developed by the county. The '83 ordinance dropped these flexible criteria and instituted a uniform, arbitrary 40-acre minimum that created extreme hardship for many owners of smaller acreages, as well as for those with large farms who wanted to subdivide and let their children build nearby homes.
Under the current position of the U.S. Supreme Court, the 40-acre minimum, if passed today, could require Utah County to compensate landowners for the loss of their property's value and use. In First Church vs. County of Los Angeles (1987), the court argued that substantial loss due to a zoning regulation can amount to a "regulatory taking" that demands payment similar to that required in eminent domain takings, based on the Fifth Amendment's Just Compensation Clause.
There is no question that changing the zone from one to 40 acres instantly diminished the marketability of undeveloped parcels in Utah County's A-1 zone. In Lake Shore, property values eventually dropped from $5,000 per acre to less than $1,500 for undersized land.
While the real estate recession has played a part, most of this decline - a local appraiser told me - can be directly attributed to the '83 zone change.
Attempted today, this kind of "government theft" would meet an avalanche of lawsuits, resulting not only in rollback of oppressive requirements but, very possibly, sizable compensation for landowners. If so, the '83 ordinance would seem highly susceptible to legal challenge, as well.
In light of the Supreme Court's new attitude, President Reagan last year issued an Executive Order directing all federal agencies to honor the Court's interpretation of the Fifth Amendment, to protect the public treasury.
Fact 3: I have been told by some observers, including two county officials, that it appears that even the majority of A-1 residents do not possess 40 acres. While no one has undertaken to verify this pertinent detail, the zoning office concedes that it may well be true, from cursory examination of county maps.
Fact 4: The areas in which five-acre lots would be allowed under the new proposals were chosen for their already-saturated character. Lake Shore, Benjamin and Palmyra are the most densely populated unincorporated districts in the county.
These places were also selected because 80 percent of their residents who have expressed a view in preliminary meetings or by phone support downzoning, with five acres the most popular choice.
Fact 5: A local attorney who went to court a few years ago to appeal a Board of Adjustment's denial of his request for a variance in the A-1 zone said that - although the judge affirmed the Board's decision, for technical reasons - the judge privately termed the current zoning ordinance "illegal."
During the most recent election, the Utah County Republican Party issued a policy statement declaring that the role of government, at every level, was to protect citizens' right to life, liberty and property - including, in regard to the last, the right to "own, develop, and enjoy" private land. The statement then said: "We oppose the trend which has occurred over time whereby these three basic rights have been encroached upon and eroded."
Over the past few weeks, Utah County residents have had an opportunity to tip the scales back in favor of their constitutional rights. Public meetings were conducted March 23 at American Fork Junior High School, March 30 in the new county building and April 6 in the Payson City offices.
(Stephen J. Stone has worked closely with the firm hired by Utah County to rewrite its zoning ordinance.)