Planning Commission, property rights, & government power
by Kathy Bence
Photo courtesy of Lori Cole
The March 13 Planning Commission meeting was of interest to me. There was discussion among the commissioners about breaking up one acre lots into half acre lots.
The first business item was “Discussion on Toquerville City Code Title 10, Chapter 9 – Agricultural District and the possible consolidation of the two agricultural zones”. The discussion begins at marker 30:10 on the city’s YouTube channel.
My understanding from what I watched is that, according to Chairman Stacey Eaton, three people approached him complaining about the current process and the $1,000 fee to break an acre lot into two half acre lots—from A-1 to A-0.5—which currently is a zone change. These property owners might want to buy a half acre of their next-door neighbor’s property. They said these half acre lots would continue to be used for agricultural purposes. Stacey said requests like these are normally granted. He suggested the planning commission consider whether the process should be streamlined, the two agricultural zones consolidated, and the fee dropped.
As an aside, I dislike taxes, fees, and government red tape. Unfortunately, I don’t remember any city or county tax, fee, or process ever being reversed or diminished, only increased. I certainly understand the frustration of these three individuals, whoever they may be. The individuals interested in splitting these lots were not named nor were they at the meeting.
Some of the commissioners brought up concerns with changing this ordinance. Dean Haymore was the most vocal.
Dean believed this could open up a can of worms and shared some of the possibilities that could happen down the line. The half acre lot might be re-sold and re-zoned in the future. People who purchased one acre sized lots expecting to have a certain distance from their neighbors, might be denied what they originally sought. Under the current ordinance, the applicant would have to go through a zone change process and then the surrounding property owners would be notified. Streamlining this process could prevent neighbors from receiving proper notification or an opportunity to voice their concerns about lots being split.
Dean was also concerned about the overall impact this change might have. By easily dividing acreage in this manner an established area could double in population density. Since one house can be built on an agriculturally zoned property, two houses might now be built on the same amount of property once the property is split.
Angela Harrison asked if this was an ongoing complaint and if the process and fee had been causing problems for the city or its residents. She questioned whether anything should change if nothing was broken and most of the commissioners agreed. All the commissioners said there wasn't enough information to decide at this time.
Stacey cited the importance of property rights and that when feasible, it was good to ensure the property owners could do what they wanted with their property. Someone else questioned whether the rights of the surrounding neighbors would be impacted.
Despite this being a discussion-only item that should not require further action and without much enthusiasm for this change from the commissioners, Stacy directed the city staff to create a proposed ordinance. It will be brought back to the Planning Commission for consideration. The closing arguments wrap up around marker 1:00.
Property Rights
Property rights are always a consideration and have been mentioned before in the Sentinel. In the State of the City address, the Mayor stressed the importance of property rights, citing the 5th and 14th Amendments to the Constitution. A nation conceived in liberty and dedicated to justice for all protects property rights.
However, when we speak today of property rights, especially in the context of city government and individual rights, I believe there is something else to consider. The U.S. Constitution does not convey powers to a city to zone property and become the arbiter of WHICH property owner will have WHICH property rights.
Whether or not this is what the founders had in mind, property zoning has become a necessary part of a community.
The Toquerville City Code has nine standards and conditions to consider when a zone change is requested. While city leaders are likely to do their best to heed these guidelines, this previous post asked questions about how these guidelines are being followed.
Zone changes that DO NOT abide by the nine guidelines may include:
When a city grants a zone change so a property owner can increase the value of their property. For example, agriculturally zoned property may not sell for as much as a residential or commercially zoned property.
When a city grants a zone change to a property owner in exchange for property the city needs. Many states, including Utah, prohibit this practice of granting zoning in exchange for property. When a city needs to acquire property, Utah Code only allows monetary compensation for the fair market value of the property or an exchange of another property of equal value.
When a city grants a zone change to increase its tax revenues. For example, the city may prefer a zone change that would allow additional housing or commercial development from a property previously zoned agricultural.
When a city grants a zone change to meet the needs of someone outside the community, such as a developer. The first of the nine points is: “addresses a recognized and demonstrated need in the community,” NOT a need outside the community.
As Toquerville City develops more and more, perhaps many of us will feel justified in asking for zoning that will give us the most money for our property. Or the city will feel justified in granting zoning for reasons other than what is outlined in the nine guidelines. Sadly however, those left behind will no longer be living in the community they originally sought. Toquerville will also no longer reflect the voice of the people as expressed in the General Plan survey.
When city officials cite property rights, certain other conditions and caveats must also be considered. Neither the landowners nor the city can expect carte blanche authority every time they see an opportunity to make a fast buck.