Utah Code    City § 10-9-804    County § 17-27-804

Plats Required.

(1) Unless exempt under Section 10-9-806 17-27-806, or not included in the definition of a subdivision under subsection 10-9-103(1) 17-27-103(1), whenever any lands are laid out and platted, divided, the owner of those lands shall have provide an accurate plat that describes or specifies: made of them that sets forth and describes:

(3) After the plat has been acknowledged, certified, and approved, the owner of the land shall record it in the county recorder's office in the county in which the lands platted and laid out are situated.

This section sets forth those elements required in the preparation of a plat. Generally, a local land planning, surveying, or engineering firm will be familiar with the plat requirements. If you are not familiar with such a firm, the planning department of the city or county will most likely be able to give a recommendation.

1.4.2 Subdivision Approval Procedure

Utah Code   City § 10-9-805    County § 17-27-805

(1) A person may not submit a plat of a subdivision to the county recorder's office for recording unless a recommendation has been received from the planning commission and:

(2) In municipalities under the council-mayor form of government, Section 10-3-1219.5 governs.

(2) (3) A subdivision plat recorded without the approval required under this section is void.⁽⁶⁾

This requires that the plat not be recorded until it is approved. It is typical for the city or county to make arrangements for the conveyance of a completed plat to the county recorder.

1.4.2.1 Exemptions from Plat Requirement

Utah Code City § 10-9-806 County § 17-27-806

Exemptions from Plat Requirement

(2) Municipalities under the council-mayor form of government shall comply with Section 10-3-1219.5.

(3) (2) (a) Subject to Subsection (3)(2)(b), a lot or parcel resulting from a division of agricultural land is exempt from the plat requirements of Section 10-9-804 17-27-804 if the lot or parcel:

(4) (3) (a) A person may not submit to the county recorder's office for recording a document that subdivides property by metes and bounds unless it contains the certificate or written approval required by this section.

All of the cities and counties with which I am familiar require plats for all subdivisions.

1.4.2.2 Common Parcels

UCA §§ 10-9-806.5 and 17-27-806.5 were added to the Land Development Acts during the 2001 general legislative session.⁽⁸⁾ The sections are virtually identical, and deal with common ownership of parcels on subdivision plats:

Common area parcels on a plat - No separate ownership - Ownership interest equally divided among other parcels on a plat and included in description of other parcels.

(1) A parcel designated as common area on a plat recorded in compliance with this part may not be separately owned or conveyed independent of the other parcels created by the plat.

(2) The ownership interest in a parcel described in Subsection (1) shall:

1.4.2.3 Dedication, Vacation, and Amendment

Utah Code    City § 10-9-807    County § 17-27-807

Dedication of Streets

(1) Plats, when made, acknowledged, filed, and recorded according to the procedures specified in this part, operate as a dedication of all streets and other public places, and vest the fee of those parcels of land in the municipality county for the public for the uses named or intended in those maps or plats.

(2) The dedication established by this section does not impose liability upon the municipality county for streets and other public places that are dedicated in this manner but unimproved.

This section grants a determinable fee to city or county in "all streets and other public places." Typically, if streets are to be private, they are so shown on plat. However, the law provides for dedication of all streets. If a public street is vacated or not used, a reversion will automatically occur. See Falula Farms, Inc. v. Ludlow, 866, P.2d 569 (Utah App. 1993).

The language limiting liability is a response to Cox v. Utah Mortg. and Loan Corp., 716 P.2d 783 (Utah 1986), where the Utah Supreme Court found that Pleasant Grove City had a duty under former enabling law to bring about a completion of the improvements in the streets. Whether the new statutory language erases the duty entirely is as yet unknown. Changes in the Government Immunity Act may also help shield government. Plainly, this uncertainty renders this area ripe for a new case.

Utah Code    City § 10-9-808    County § 17-27-808

Vacating or Changing a Subdivision Plat

(1) (a) Subject to Subsection (2), the legislative body of a municipality county executive or any other officer that the county legislative body designates by ordinance may, with or without a petition, consider any proposed vacation, alteration, or amendment of a subdivision plat, any portion of a subdivision plat, or any street, lot, or alley contained in a subdivision plat at a public hearing.

(2) (a) Before the county legislative body or officer designated by the county legislative body may consider a proposed vacation, alteration, or amendment under Subsection (1)(a) or (6), the county legislative body or officer shall refer the proposal to the planning commission for its recommendation.

(3) Any fee owner, as shown on the last county assessment rolls, of land within the subdivision that has been laid out and platted as provided in this part may, in writing, petition the legislative body county executive to have the plat, any portion of it, or any street or lot contained in it, vacated, altered or amended as provided in this section.

(4) Each petition to vacate, alter or amend an entire plat, a portion of a plat or a street or lot contained in a plat shall include:

(5) (a) A petition that lacks the consent of all owners referred to in Subsection (4) may not be scheduled for consideration at a public hearing before the legislative body responsible officer until the notice required by this part is given.

(6) Subject to Subsection (2), if the responsible body or officer proposes to vacate, alter, or amend a subdivision plat, or any street or lot contained in a subdivision plat, they shall consider the issue at a public hearing after giving the notice required by this part.

(7) Petitions to adjust lot lines between adjacent properties may be executed upon the recordation of an appropriate deed if:

(8) (a) The name of a recorded subdivision may be changed by recording an amended plat making that change, as provided in this section.

(9) Municipalities operating under the council-mayor form of government shall comply with Section 10-3-1219.5.

Along with the following two sections, this language sets forth the requisite procedure for altering, amending, or vacating an existing plat. The current procedure, it should be noted, is less onerous than prior law, which required concurrence by all lot owners.

Utah Code   City § 10-9-809    County § 17-27-809

Notice of Hearing for Plat Change

(1) (a) Except as provided in subsection (3), the responsible body or officer shall give notice of the proposed plat change by mailing the notice to each owner of property located within 300 feet of the property that is the subject of the proposed plat change, addressed to the owner's mailing addresses appearing on the rolls of the county assessor of the county in which the land is located.

(2) If the proposed change involves the vacation, alteration, or amendment of a street, the responsible body or officer shall give notice of the date, place, and time of the hearing by:

(3) Municipalities operating under the council-mayor form of municipal government need not comply with this section.

Utah Code    City § 10-9-810    County § 17-27-810

Grounds for Vacating or Changing a Plat

(1) (a) Within 30 days after the public hearing required by this part, the responsible body or officer shall consider the petition.

(2) An aggrieved party may appeal the responsible body's or officer's decision to district court as provided in Section 10-9-1001 the board of adjustment.⁽⁹⁾

Note here that the amended language sends appeals from county decisions to the county board of adjustment rather than to the district court, as is still required by the municipal statute. Again, given concerns with judicial efficiency and resources, it seems likely that the legislature will soon amend the municipal statute to reflect a board of adjustment appellate path there as well.

1.4.3 Subdivision Process

Remember that subdivision--that is, preparation of the plat showing the division--is only one step in the multi-step process of approval. Generally, the approval process will include at least the following steps:

1. Informal meeting with planning staff;

2. Submission of plat;

3. Work session with Planning Commission;

4. Formal Action by Planning Commission;

5. Formal Action by City Council;

6. City Engineer Review;

7. City Attorney Review.

Many cities and counties have additional steps, e.g., submission of sketch and/or preliminary plats. It should also be remembered that subdivision is often only one facet of the land use approval process. Other approvals such as a master plan approval may also be necessary. Once again, consulting the particular entity is an absolute necessity.

In the case of Wright Development v. City of Wellsville, 608 P.2d 232 (Utah 1980), the city council had overruled the decision of the city engineer and planning and zoning commission, which had approved a preliminary subdivision plat showing a six-inch water line to connect with the city water system. The city council required the installation of an eight-inch water line as a condition to final plat approval. The subdivider requested the district court issue a writ of mandamus requiring the city council to approve the proposed subdivision plat, arguing that it had a right to rely upon the actions of the city engineer and the planning and zoning commission, and that the only prerogative the city council had was the ministerial act of approving the subdivision plat. The Court, however, ruled that the prerogative and responsibility for making the final and controlling decisions as to the growth and management of the city is vested in the city council; and that what is done by the city engineer and by the planning and zoning commission are but preliminary to and are to be regarded as advisory to that governing body. 608 P.2d at 233 (footnote omitted). As support, the Court cited UCA § 57-5-3. This section has since been repealed; UCA §§ 10-9-804 & 17-27-804, however, are substantially similar in pertinent part.

The Court also held that mandamus would not lie where the action of the administrative body charged with approvals is discretionary:

[The] purpose of the extraordinary writ of mandamus] is not for the courts to intrude into or interfere with the functions or the policies of other departments of government. Accordingly, where the action sought is a matter of discretion, the court may require the public body (or public official) to act but will not substitute its judgment for that of the public body, by telling it how it must decide; and when it has so acted the courts will not interfere therewith unless the determination is made in violation of substantial rights, or is so totally discordant to reason and justice that its action must be deemed capricious and arbitrary.

608 P.2d at 233-34 (footnotes omitted).

1.5 Avoiding Local Land Division Regulation

As discussed previously, several sorts of land division are excepted from the "subdivision" definition. (See § 1.4.1.2, above.) Land divided for bona fide agricultural purposes (in a county) or for the purpose of adding it to an undivided agricultural parcel (in a municipality), for example, does not fall within the demesne of subdivision law. Additionally, division of land in a county for commercial or industrial purposes may also avoid subdivision regulation. (Be aware, however, that many counties have adopted ordinances specifically applicable to and controlling such uses.)

1.6 Penalties & Remedies

UCA §§ 10-9-811 and 17-27-811, governing specific prohibitions under land division law, are identical to one another. Originally (that is to say, prior to the 2001 general legislative session), the statutes began with a provision forbidding county recorders from recording an unapproved subdivision plat, and rendering any such recording void. This language has been eliminated.

Utah Code    City § 10-9-811    County § 17-27-811

Prohibited Acts.

(1) (a) An owner of any land located in a subdivision, as defined in this chapter who transfers or sells any land in that subdivision before a plat of the subdivision has been approved and recorded violates this part for each lot or parcel transferred or sold.

The evident intent of the removal of the original opening provision removes the burden of verifying approval from the shoulders of the county recorders, and places the onus of ensuring valid approval and recordation upon the subdivider, who cannot legally transfer or sell any parcel until such valid recordation has taken place. Note, however, that although the subdivider who conveys a subdivided parcel without valid approval and recordation falls under the shadow of the statutory penalties, the transferring instrument is not affected, and, if in conformity with the applicable laws and regulations, remains a valid instrument of transfer.

Where subdivided property fails to conform to the requirements of the Land Use Development Acts, violation, municipalities and counties may seek injunction, abatement, merger of title, or any other appropriate action or proceedings to prevent, enjoin, or abate the violation.

The case of Levie v. Sevier County, 617 P.2d 331 (Utah 1980) held that the remedy of mandamus is available in the subdivision approval process only if administrative remedies are exhausted. In Levie, the county planning and zoning commission had rejected a subdivider's plat, and the subdivider had failed to present the plat to the county commission as required. The Court denied the subdivider's request for mandamus.

Thus, under the rule set out in Levie (and elsewhere), to have any hope of overturning a determination of a city or county, you must first exhaust all of the available administrative remedies.

1.7 Appeal to District Court

Any person "adversely affected" by any final decision may petition the district court to review the decision. UCA §§ 10-9-1001 & 17-27-1001. Before any appeal to the district court is considered, you must determine whether or not any intermediate appeals to a City Council, County Commission or Board of Adjustment exist. Concepts of exhaustion of administrative remedies and primary jurisdiction require such appeals to be utilized and exhausted.

Case law suggests that to be adversely affected and thus have standing to bring an action you must have an interest greater than that of the general public. Harris v. Springville City, 712 P.2d 188 (Utah 1984), Nat. Parks & Cons. Ass'n. v. Bd. of State Lands, 869 P.2d 909 (Utah 1993). The petition must be filed within thirty days after the decision is rendered. If it is an appeal of a Board of Adjustment decision, the Board must transmit to the court the record of its proceedings including minutes, findings, orders, and if available, a transcript of the proceedings. If tape-recorded, the tape serves as a transcript. This becomes the record for the District Court. Other decisions are not so limited and evidence may be admitted at trial.

The Court must presume that the decisions and regulations are valid. The petitioner may only allege that the decision appealed is arbitrary, capricious, or illegal. UCA § 10-9-1001, § 17-27-1001. This standard, now codified, has long been applied in land use matters.

This rule was enunciated in Cottonwood Heights, Etc., v. Board of Commissioners, 593 P.2d 138, 140 (Utah 1979), where the Court held:

Due to the complexity of factors involved in the matter of zoning, as in other fields where courts review the actions of administrative bodies, it should be assumed that those charged with that responsibility, (the commission) have specialized knowledge in the field. Accordingly, they should be allowed a comparatively wide latitude of discretion; and their actions endowed with a presumption of correctness and validity which the courts should not interfere with unless it is shown there was no reasonable basis to justify the action taken. (Citations omitted.)

In the 1988 case of Davis County v. Clearfield City, 756 P.2d 104 (Utah App. 1988), the Utah Court of Appeals issued an exhaustive opinion on the role and scope of judicial review of administrative zoning decisions. The Davis County decision, affirmed the long-standing rule that arbitrary and capricious was the appropriate standard of judicial review of the Clearfield City Planning Commission's and City Council's administrative action in denying a proposed development project. Similarly, in Xanthos v. Board of Adjustment, 685 P.2d 1032 (Utah 1984), the Supreme Court refused to allow the trial court to substitute its judgment for the Board of Adjustment and limited judicial review to whether the Board's decision was arbitrary and capricious.

The Court of Appeals discussed the "arbitrary and capricious" standard as well as the "illegal" standard of review in Patterson v. Utah County Bd. Of Adjust., 853 P.2d 602 (Utah App. 1995). A decision is arbitrary and capricious only if the decision is not supported by substantial evidence. The reviewing court is only to determine in light of the evidence whether a reasonable mind could reach the same conclusion. It is not the court's prerogative to weigh the evidence anew.

On the other hand, if a decision by a planning commission is illegal, i.e., the law was not correctly interpreted or applied, the court accords no deference, and applies a correctness standard. This standard of review was most recently sustained in Brown v. Sandy City Board of Adjust., 957 P.2d 207 (Utah App. 1998). It should be noted, moreover, that the 2001 general legislative session added an explanatory provision along these same lines at UCA § 17-27-1001(3)(b), dealing with the appeal of county decisions:

(3) (a) The courts shall:

One cannot, in other words, among other things, claim a determination is illegal solely as a means of bypassing or short-circuiting the presumption of an administrative decision's validity. On the other hand, where such illegality can be demonstrated by showing a violated law, no such presumption will attach.

Finally, it must be remembered that many decisions by a planning commission must be appealed administratively, either to a board of adjustment or the city council prior to judicial review. Failure to timely utilize and exhaust administrative remedies may bar judicial review. See Brendle v. City of Draper, 937 P.2d 1004 (Utah App. 1997).

1.8 Recent Developments

In Wells v. Bd. of Adjust. of Salt Lake City, 936 P.2d 1102 (Utah Ct. App. 1997), approval of variance without making statutorily required findings was held to be illegal.

In another recent case involving Sandy City, Smith Inv. Co. v. Sandy City, 958 P.2d 245, (Utah Ct. App. 1998), a downsizing that decreases but does not take all value was held not to be a taking.

A citizen group brought an action challenging a land use decision approving a Planned Use Development ("PUD") by the City of Springville in Springville Citizens v. City of Springville, 1999 UT 25, 979 P.2d 332. The Utah Supreme Court reversed the trial court's decision granting summary judgment for Springville City on the basis that substantial compliance by the City with its own ordinances in approving the PUD was sufficient. The Supreme Court held that a municipality must comply with mandatory provisions of its own ordinance; substantial compliance is not sufficient. However, those challenging the City's compliance must demonstrate how the noncompliance prejudiced them or led to a different result. The matter was remanded to the trial court to determine the effect of non-compliance by the City with its own ordinances.

Since the Springville Citizens opinion, several Court of Appeals decisions have addressed the arbitrary and capricious standard of review applied to land use decisions. In Harmon City, Inc. v. Draper City, 2000 UT App 31, 997 P.2d 321, the Court of Appeals distinguished Harmon City from Springville Citizens in concluding that there are two standards of review under the arbitrary and capricious banner. For adjudicative/administrative matters such as Board of Adjustment decisions, the land use decision must be supported by substantial evidence. On the other hand, for legislative matters such as rezoning of property, it need only be shown to be reasonably debatable that the decision is in the interest of the general welfare.⁽¹⁰⁾

This issue has yet to go before the Supreme Court for final exegesis; however, and thereafter, in the Court of Appeals applied its substantial evidence standard in reversing the denial of a conditional use permit in Wadsworth Construction v. West Jordan City, 2000 UT App 49, 999 P.2d 1240.

The "reasonably debatable" standard came to the fore in Bradley v. Payson City Corp., 2001 UT App 9, 17 P.3d 1160, wherein the Court of Appeals further defined its two-analysis approach. In Bradley, the Payson City Council had denied the plaintiffs' zone-change application. After reviewing the record, the trial court reversed the City Council's decision, determining that the Council had acted arbitrarily and capriciously because its decision had no evidentiary support other than public opposition. The Court of Appeals reversed, explaining that "according to Harmon City, the reasonably debatable standard must be applied when reviewing a municipality's legislative decisions." 2001 UT App 9, ¶15 (emphasis added). The Court of Appeals went on to clarify:

Both the substantial evidence and reasonably debatable standards, however, are alternative aspects of the arbitrary and capricious standard of review. Thus, a municipality's decision is always reviewed under the arbitrary and capricious standard; however, under that standard, an administrative proceeding is viewed non-deferentially under the substantial evidence standard, while a legislative proceeding is viewed deferentially under the reasonably debatable standard.
Id.

Other recent decisions of interest include Gardner v. Perry City, 2000 UT App 1, 994 P.2d 811, which discussed the ability of a City Council to separately consider portions of a zone change recommended by the Planning Commission; Peterson v. South Salt Lake City,⁽¹¹⁾ holding the reasonable point to measure the distance between sexually-oriented businesses was building to building rather than lot-line to lot-line; and Hugoe v. Woods Cross City, 1999 UT App 281, 988 P.2d 456, holding that strict construction is applied in favor of the land owner as zoning is a derogation of common law property rights, and that property was used as a "transfer company," a permitted use under the relevant zoning.

On the federal level, the most important recent development remains the United States Supreme Court's decision in City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999). In its decision, the Supreme Court affirmed that land use decisions must be reasonably related to a legitimate public purpose. The Court rejected extension of the rough proportionality test used for exactions to land use decisions generally. Finally, the Court clarified the role of juries in land use claims brought under 42 USC § 1983.

3. Morgan County v. Stephens, 520 P.2d 1340 (1974), injunction prohibiting sale of 10-acre lots with covenant upheld. Court found such lots were not for a bona fide agricultural use.

4. This last section of the County enabling statute ((1)(w)(iii)(D)(II)--"an unmanned . . . or amplification facility") was added by 2001 Utah Laws, ch. 66, § 1.

5. "County executive" was substituted for "County legislative body" by 2001 Laws of Utah, ch. 241, § 36. At present, of course, only Salt Lake County has a distinct executive (the County Mayor) and legislative body (the County Council). The language of the statute works under any of the permitted forms of county government, however.

6. This provision was added by 2001 Laws of Utah, ch. 241, §§ 2 & 37.

7. "Legislative officer," of course, makes very little sense, and now that the county enabling statute has repaired this nonsequitur, the legislature will no doubt follow suite on the municipal enabling statute as well.

8. 2001 Laws of Utah, ch. 241, §§ 3 & 39.

9. These amendments were enacted by 2001 Laws of Utah, ch. 241, § 42.

10. Judge Jackson wrote a lengthy and well-reasoned dissent, arguing that the substantial evidence test should apply to review of all land use decisions under the arbitrary and capricious standard.

11. 987 P.2d 57 (Utah 1999).