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Show MONDAY, NOVEMBER 27, 1972 THE DAILY RECORD PAGE FIVE T Office of Attorney General a subdivision means, under the definition contained the division of land Into three or more lots, plats, sites or other divisions of land for the purpose of present or future sale or of building development. This constitutes a step toward urbanization and concentration of population which Is not permitted under the master plan. creation of The In Sec. 17-29-- 27 the statutes above referred to the county planning commission and the board of county commissioners have the authority to exercise a reasonable discretion as to which parts of the county shall be reserved for urbanization and which shall be used for agricultural, grazing and water shed protection. Such authority may be exercised by refusing to approve a of the master plan. particular subdivision deemed to be Under In 2. local government have the authority to that dwelling sites contain several acres require 2. Install In subdivider's expense as 4. If local condition of approval? It require that In Dllllard. et al. v. Village of North Hills. 94 N.Y.S. 2d 715, the court held that under the evidence a zoning ordinance prescribing an area of two acres for residences constructed In a certain district was not u- nconstitutional. dwelling sites 1. questions See opinion. 2. See opinion. 3. See opinion. 4. 1. Yes. See In 60 Yale Law Review, p. 516, n. 44, that in "A- -l Agricultural Zone" In Los Angeles, five acres are required for a one family dwelling. Mo. , 246 In Flora Realty & Investment Co. v. City of Ladue, S.W. 2d 721, the court held a zoning ordinance valid that requ1redtRree acres for each dwelling. It recognized the rule that the governmental power Is not unlimited. The restriction must bear a substantial relation to the public health, safety, morals or general welfare. The court concluded the He assume that reference to "local governments In the above means county government since the questions are submitted only by which we assume have adopted comprehensive plans pursuant to evidence showed the requirement was not unreasonable. Information is submitted as appropriate zoning ordinances been adopted to Implement the comprehensive land use plan adopted by the counties, the counties could disapprove proposed subdivisions which would be in violation of such plan and zoning ordinance. If no zoning ordinance has been adopted implementing the comprehensive land use plan, the question then Is whether t.he board of county ccmiss ioners may disapprove a proposed subdivision in areas not Indicated for urban development on its comprehensive land use plan. The answer to this question depends upon the purpose and effect of adopting such In Gay! and v. Salt Lake County. No ing a county zoning by -1 17-27- -4 17-5-- 38, 17-7-- district and 11 assess the cost thereof against the real property specially Such districts may be created to establish, grade, pave benefited thereby. street or alley and improve, was approved as to cities In Booth v. Midvale and P. 799, Sidney Stevens Implement Co. v. Ogden City. 220, City, 83 Utah 578, holding that payment for street Improvements may be made by a city from the general fund or from special assessments. property. A 55 Utah similar proposition 184 Since the board of county commissioners decides the source of funds r . -7 Sec. provides that the board of county commissioners may provide a zoning plan for the county representing the recommendations of the 17-27- U.C.A. 1953, as amended by L. 1965, chapter 3. Under Sec. control and manage county roads and a construct, may out, county 28, lay the board of county commisidewalks within the county. Under Sec. ssioners may create Improvement districts, order Improvements made within the He convenience, prosperity or general welfare of the Inhabitants . . . Including among other things the uses of land for urbanization, trade. Industry, habitation, recreation, agriculture, arboretum and other purposes, as will tend to create conditions favorable to health, safety, transportation, prosperity, civic activities and recreational . educational and cultural opportunities, will tend to reduce the waste of physical, financial or human resources which result from either excessive congestion or excessive scattering of population and will tend toward an efficient and economical utilization, conservation and production of the supply of food and water and of drainage, sanitary and other facilities and resources." 17-27- In our opinion we cannot state what acreage would be held a permissible restriction. The answer must lie in the particular circumstances and facts applicable to a given situation. The restriction must appear to be reasonable and not capricious, arbitrary or In violation of the rights of the owners of property coming within the restriction. Due consideration must be given to land reasonably adopted to agricultural, grazing and water shed uses In determining the size of dwelling areas to be permitted. any 17-27- the foregoing provisions It Is clear that the planning commission In adopting a comprehensive land use plan for the county must take Into consideration a most comprehensive view of all factors Involved In promoting, protecting and assuring, as far as possible, that the welfare, morals, economy, urbanization and development of the county are favorably utilized and provided for. Provision Is made In Sec. for the board of county commissioners to change or add to the official plat adopted by the planning commission by following a specified procedure. However, when such official plat has been adopted by the board of county commissioners such plat "shall be deemed binding upon the legislative body of the county, and the several The ordinance adopting the plat snail be recorded In departments thereof. the office of the county recorder. - and drali) repair, light, curb, gutter, seweroners coral ssi are of the opinion that the board of county ir.ay the same. elect, under these statutes, to pay the cost of constructing the roads and sidewalks either from the general fund or by special assessments against the -5 Sec. provides that the purpose of the master plan shall be for "guiding and accomplishing a coordinated, adjusted and harmonious development of the county which will, in accordance with present and future needs and resources, best promote the health, safety, morals, order and From Utah 2d 307, 358 P.2d 633, Involv- "In zoning, as In any legislative action, the functioning authority Its action Is endowed with a presumption of validity; and It Is the court's duty to resolve all doubts In favor thereof and not to Interfere with the commission's action unless It clearly appears to be beyond Its power, or Is unconstitutional for some such reason as It deprives one of property without due process of law, or capriciously and arbitrarily Infringes upon his rights therein or Is unjustly discriminatory." empowers the board of county commissioners to provide for "the physical development of the unincorporated territory within It, and for the zoning of ail or any part of such unincorporated territory in the manner hereinafter provided." To accomplish this authority the board Under Sec. the planning commay appoint a planning commission. mission is empowered to make and adopt a master plan "for the physical development of the unincorporated territory of the county." Among the objects to be attained by such master plan is to show "the general character, location and extent of conmunity centers, town sites, or housing developments," the general location and extent of forest and open development areas for purposes of conservation, and water supply, sanitary and drainage facilities, or the protection of urban development." 17-27- 11 ordinance, the court said:- has wide discretion. a plan. Sec, court said: It Is stated v opinion. counties authority granted In Title 17, Chapter 27. to whether such plans have been implemented and regulations. If zoning ordinances have The "In the light of the location and character of the village. It was within defendant's legislative province to determine, In the absence of proof of superior public need, that the two-ac- re requirement Is justifiable as an elastic application of the police power." outside of approved subdivisions contain several acres of land as a means of discouraging subdividers from attempting to circumvent the requirements? CONCLUSIONS: resulti- ceived by the courts." government does have the authority to as a condition of approval of require Improvements a subdivision, can re- "Subject to the rule that all limitations and provisions their subdivisions at the a of Zoning, Is. the following: must be reasonable, these provisions have been favorably re- local government require subdividers to Improvements Law this being predicated upon the sound philosophy that a striction Is aimed toward prevention of congestion and ng Injury to the public safety and health. . . protection? Can Metzenbaum, "Virtually all comprehensive zoning ordinances Include a provision which forbids a too intensive use of parcels of land; Does of land as a means of Implementing the land use plan, and particularly of preventing the urbanization of areas which have been designated on the land use plan for agriculture, grazing and water shed 3. 2 -9 ... planning commission for, among other things, "the size of lots, the density and distribution of population and the uses of land for trade, industry, recreation or other purposes." to pay for street Improvements, It Is within the power of that board to determine whether the subdivider must pay for such costs by special assessments or In cash for that board can refuse to pay such costs from the general fund. It would be a useless thing to approve a subdivision If the subdivider refused to pay the costs of street improvements and so leave the subdivision without street Improvements. Certainly the board could well decide that the county as a whole would get a minimum of benefit from street Improvements In a particular subdivision and so refuse to pay the costs from the general fund. The subdivider would either have to submit to special assessments to pay the costs or pay them himself or not have an established subdivision with the proper street improvements. We are of the opinion that the subdivider must either pay for the costs of the street Improvements or have such costs levied as special assessments against Ms property If he Is to have a workable subdivision. The street Improvements here Intended are the establishment, grading and paving of a road or alley and construction of sidewalks and of lighting, curbing, guttering, sewering and draining facilities. . 4. He feel that the fourth question Is answered as far as we can answer It by what we have said with respect to the second question. The zoning ordinance would have to district the areas of the unincorporated area of the county In a manner that there would be some reasonable basis' for fixing the minimum acreage of dwelling sites within the various districts. provides that the planning commission may make and certify single plan for the entire unincorporated portion of the county, or separate or successive plans for those parts which It deems to be unurbanized or suitable for urban development and those parts which It deems suitable for Sec. 17-27-- 11 a nonurban development. provides that the zoning regulations adopted by the be shall county deslgted to foster the State's agrlbultural Industry and to Sec. 17-27-- 13 protect both urban ana nonurban development. From the foregoing we are of the opinion that once the board of county convnlssloners has adopted the master plan submitted by the county planning commission, it should not approve a subdivision to be located In areas not Indicated In that plan for urban development until and unless the board amends the plan as provided for by statute. The board should not Ignore the master plan and thus undo the purpose and work of the planning commission. a LINCOLN QUOTATIONS - Government - In all that the people can in dividuaUy do aa well for them elves, government ought not to interfere. 0 |