Parties: Jeffrey Kummer / Sevier County

Issued: August 23, 2024

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Exactions on Development 

Requirements Imposed On Development 

Subdivision Plat Approval

The County has not met its burden of establishing that a dirt road over private property is an existing County right-of-way that had been dedicated by public use. Therefore, because the County’s land use ordinances allow for development of minor subdivisions on private drives, the County cannot not require the subdivision applicant to formally dedicate the dirt road for County right-of-way as a condition of minor subdivision approval.

Issue

Can the County lawfully require the applicant to dedicate a county right-of-way as a condition approval of a minor subdivision?

Summary of Advisory Opinion

As a condition of minor subdivision approval, the County has required the formal dedication of a dirt road it considers to be an existing county right-of-way dedicated by public use, for the purpose of future road improvements, as required by its ordinances. County ordinances also, however, appear to allow for minor subdivision and development on private roads. The property owner has challenged both the County’s determination that the road across his property has been dedicated to the public’s use, and, whether the conditions mandated by the County’s ordinances satisfy the legal test for exactions on development.

The County cannot meet its burden of proving a public dedication has already occurred by public use where the road dead ends in private property and the only alleged users of the road are the farmers who own immediate surrounding property. Where there is no established public right-of-way, the County may not lawfully require that the road in question be dedicated as a county right-of-way where the County’s ordinances otherwise allow for a minor subdivision on a private road.

Evidence

The Ombudsman’s Office reviewed the following relevant documents and information prior to completing this Advisory Opinion:

1. Request for Advisory Opinion submitted by Jeffrey Kummer dated August 24, 2023.
2. Email response from Casey Jewkes, Sevier County Attorney, received October 30, 2023.
3. Email reply from Jeffrey Kummer, received April 25, 2024.

Background

Jeffrey and Kimberly Kummer (“Applicants”) own certain real property in the Sevier County unincorporated area of Monroe. Located within and traversing the property from east to west is an existing dirt lane, and there are two existing shed structures sitting just off the traveled edge of the dirt lane; the eastern half of the dirt lane follows the Applicants’ property line at the southernmost edge of the traveled lane (see excerpt of annotated survey, below). The Applicants have proposed a minor subdivision to create four lots, with two lots on each side, north and south, respectively, of the existing dirt lane.

After making application to Sevier County (“County”) for a minor subdivision, the County road department responded that the existing dirt lane was a Class D county road known as 9T-1010 - which the County refers to as a “public use road” used by farmers and existing as a public road for at least 10 years. The Applicants concede that the road has been used by surrounding property owners for farming purposes and concedes that these surrounding owners likely have a prescriptive easement to use the road, but otherwise disputes that use of the road by farmers has amounted to a dedication of the road as a public right-of-way.

County ordinances require that where development is proposed on land that is subject to existing county road rights-of-way, particularly those created by the public’s prescriptive use where the County may not have a documented ownership interest, that landowners formally dedicate property for the County’s rights-of-way according to the road standards identified in the ordinance. The County has applied that ordinance to this instance, requiring that, as a condition of minor subdivision approval, the Applicants dedicate property for a 66ft right-of-way, 33ft from the center, on the identified 9T-1010 road. The two existing shed structures are located within the required dedication area, and the County requires that the Applicants either remove these structures or at least be subject to recorded language requiring removal by the Applicants at their expense if the dedicated right-of-way were required to be improved in the future

The Applicants have requested this advisory opinion to determine whether the County can lawfully condition the approval of their minor subdivision on these requirements to dedicate property and require removal of existing structures for a county right-of-way as described.

(An excerpt of an annotated property survey, submitted by Mr. Kummer, is shown below).

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Analysis

The Applicants are seeking a minor subdivision approval to create four lots fronting on a proposed private drive, utilizing an existing dirt lane that crosses the property and is currently subject to a private easement for access to several surrounding properties. This dirt lane appears to fork toward several other surrounding parcels, but otherwise dead ends in these private properties. The County’s ordinances appear to allow for minor subdivision and development on private drives,[1] though if serving as access for more than four lots or has the potential to be used as a future collector street, then the private drive must be designed with easements meeting the county road standards. Sevier County Municipal Code (“Subdivision Ordinance”) § 13.08.170(1).

The County, however, has this dirt lane listed as a Class D county road on its county road maps, and argues that it is a public right-of-way dedicated by public use. The County has therefore asked that, as a condition of minor subdivision approval, that the Applicants formally dedicate the property interest for the existing county right-of-way, and at a width according to current county road standards to allow for future road improvements, as required by ordinance. See, Ordinance 2023-4-1 (“Road Encroachment Ordinance”).

When a contribution to a government entity is required as a condition precedent to approving a development project, this is known as a “development exaction.” B.A.M. Dev., L.L.C. v. Salt Lake Cty. (“B.A.M. I”), 2006 UT 2, ¶ 4, 128 P.3d 1161, 1164 (Sup.Ct.) Salt Lake Cty. v. Bd. of Educ. of Granite Sch. Dist., 808 P.2d 1056, 1058 (Utah 1991). One form of development exaction includes the mandatory dedication of land for roads. Id.

Because development exactions typically require the permanent surrender of private property for public use, certain exactions may implicate the Takings Clause of the U.S. Constitution and Article I Section 22 of the Utah Constitution—which protect private property from governmental taking without just compensation. See, B.A.M. I, 2006 UT 2, at ¶34.

Two United States Supreme Court decisions, Nollan v. Cal. Coastal Comm’n, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374, 114 S. Ct. 2309 (1994), set forth a legal test to determine whether a particular development exaction violates the protections found in the federal Takings Clause. The language from this “Nollan/Dolan” test has been directly codified into Utah’s Land Use, Development, and Management Act (“LUDMA”), applicable to counties, which provides that counties may impose an exaction on development proposed in a land use application if:

(a)   An essential link exists between a legitimate governmental interest and [the] exaction; and

(b)   [the] exaction is roughly proportionate, both in nature and extent, to the impact of the proposed development.

Utah Code § 17-27a-507(1). If a development exaction imposed by a county satisfies the Nollan/Dolan test, as codified in LUDMA, it is a lawful exaction; if it does not, it is an unconstitutional taking requiring just compensation.

While the ultimate question is whether the County may lawfully exact the road in question as a condition of the minor subdivision approval, the more salient threshold question is whether the road is, in fact, an existing county right-of-way by public use. Because if the road has not been established as a county right-of-way, then the answer to the exaction question seems clear – as there would be no essential link between a legitimate governmental interest in the County conditioning approval of the minor subdivision on the dedication of the dirt lane as a public road if the County’s ordinances otherwise already allow for minor subdivision development to occur on private drives, without dedication, as the Applicants desire to do in this case.

I.   The County Bears the Burden of Proving Dedication by Public Use, and that Burden Has Not Been Met.

Utah statute provides that a road over private property is dedicated and abandoned to the use of the public when it has been continuously used as a public thoroughfare for a period of 10 years. Utah Code § 72-5-104(2). In unincorporated county area, roads established by use are to be classified as Class D roads, and each county is to prepare maps showing to the best of its ability the Class D roads within its boundaries. Id. § 72-3-105.

Where claim is made that a highway has been dedicated to public use, “there is a presumption in favor of the property owner and the burden of establishing public use for the required period of time is on those claiming it.” Leo M. Bertagnole, Inc. v. Pine Meadow Ranches, 639 P.2d 211, (Utah 1981); see also, Utah Code § 72-3-104(7)(a). This is because, as noted by Utah courts, “[t]he law does not lightly allow the transfer of property from private to public use. The public's taking of property in such circumstances . . . requires proof of dedication by clear and convincing evidence. This higher standard of proof is demanded since the ownership of property should be granted a high degree of sanctity and respect.” Draper City v. Estate of Bernardo, 888 P.2d 1097, 1099 (Utah 1995) (internal citations omitted).

The County was asked by the Applicants to provide an explanation of its basis for concluding that the dirt lane had been dedicated as a public highway and that it had made an individualized determination that the proposed condition was a lawful exaction. The County was also further invited by the Office of the Property Rights Ombudsman to address these questions by responding to the Request for an Advisory Opinion. In explanation or support of its claim that the dirt lane in question has been dedicated to the public, the County has proffered: (1) that the road is listed on the County’s road map, and (2) that the road has been used by farmers for decades. The County has not expounded much further on either of these points than simply stating the same. We are not convinced these facts, even accepted as true, evidence a public dedication, and therefore the County has not met its high burden under the law.

First, Utah courts have reasoned that “a road’s presence on a map is not competent evidence as to what a public road is or is not.” Koller v. Godfrey, 1999 UT App 346 n.3 (internal quotations omitted) (concluding that evidence of a road’s appearance on various maps did not meet the burden required for creating a public highway).[2] In fact, in one particular case, the Utah Supreme Court rejected as insufficient to establish a public highway any forms of evidence showing that the county considered a road to have been dedicated – such as a resolution by the county commission, a statement that the county surveyor’s office “considered” the road to be a public way, or even “aerial maps [and] other charts and maps” – deeming them all to be “indulg[ing] in the same type of conjecture and prestidigitation.” Petersen v. Combe, 20 Utah 2d 376, 379, 438 P.2d 545, 547 (Utah 1968).

To the next point, in response to the Applicants’ request that the County explain the County determination that the public had used the road, the County is alleged to have asserted that surrounding farmers used the driveway for access to their properties, and that these farmers are considered the public, including the Applicants themselves. Utah case law, however, would disagree, and so it is our opinion that the use of the road alleged by the County does not amount to public use for purposes of the public dedication statute.

Utah’s public use dedication statute states that “[a] highway is dedicated and abandoned to the use of the public when it has been continuously used as a public thoroughfare for a period of 10 years.” A “thoroughfare” is a place or way through which there is passing or travel. It becomes a “public thoroughfare” when the public have a general right of passage. Morris v. Blunt, 49 Utah 243, 251, 161 P. 1127, 1131 (Utah 1916).

While use of a road by “the public” need not consist of “a great many persons,” see, Boyer v. Clark, 7 Utah 2d 395, 326 P.2d 107, 109 (Utah 1958), Utah courts have long distinguished between use of a road by owners of adjoining property and by the general public - “Such property owners cannot be considered members of the public generally . . . because adjoining owners may have documentary or prescriptive rights to use the road or their use may be by permission of the owners of the fee of the road.” Draper City, 888 P.2d 1097, 1099 (Utah 1995) (internal quotations and citation omitted). Rather, the public is understood to be the general public, or, that is, “the people as a whole.” Utah Cty. v. Butler, 2008 UT 12, ¶ 20.

As such, the County’s assertion that the road has been used for more than 10 years by surrounding farmers accessing their own properties, and the Applicants themselves, merely evidences a use of the road by private right or permission, and is not evidence of use of the road by “the public” or use “as a public thoroughfare” as required by the dedication statute.

We therefore conclude that the dirt lane across the Applicants’ property is a private thoroughfare and has not been dedicated to the public’s use.

II.   As the Proposed Road Cannot Be Proven to be a Public Highway, the County May Not Require Public Dedication as a Condition of Minor Subdivision Approval

Sevier County’s Road Encroachment Ordinance applies to any new development activity that encroaches on a county right-of-way, which includes not only those acquired by conveyance, but also “prescriptive use, or dedication by public use,” noting that “[u]nder controlling Utah law, a road may be dedicated to the County for public motorized travel by mere continuous public use for the required number of years or by construction with public funds, for example.” Sevier County Ordinance 2023-4-1. The policy of the County’s Road Encroachment Ordinance, therefore, is that “in some cases, Sevier County may need to impose an exaction pursuant to Utah Code Section 17-27-507, on a development proposed in a land use application, in order to acquire a real property interest in a road right-of way that it currently does not own” – referring specifically to existing county roads dedicated by public use – or else landowners’ use of these dedicated rights-of-way “will continue to create conflicts and problems of access.” Id.

In other words, it is the policy of Sevier County to officially document the existence of these existing prescriptive rights-of-way dedicated by public use by requiring landowners to formally dedicate and deed title to these existing rights-of-way in order to avoid future disputes involving continued public use of the roads. Therefore, it seems that the apparent basis for the County’s condition that the Applicants formally dedicate property for a county right-of-way rests solely on the presumption that the road in question was already a public thoroughfare. However, as the County has not been able to show that is the case, the basis for requiring the dedication of property of these Applicants disappears.

The Applicants have proposed “a non-dedicated thoroughfare or road used exclusively for private access to and from private land or developments.” See “Private Drive,” Zoning Ordinance § 14.12.030. Because the County’s ordinances appear to allow for minor subdivision and development on private drives, the County may not impose a dedication requirement where the application otherwise “conforms to the requirements of the applicable land use regulations,” as the Applicants are thereby “entitled to the approval of [the] land use application. Utah Code § 17-27a-508(1)(a)(ii).

Therefore, whereas the dirt lane in question has not been shown to be anything other than private property, even if the County desired to create a public right-of-way for future use, requiring a dedication solely for future purposes would lack both an essential link between such a condition and a legitimate government interest, and rough proportionality to the impact of this proposed development, especially where the County’s ordinances already accomplish the same objectives by regulating the use of private drives to ensure access standards for other properties. See, e.g., Dolan, 512 U.S. 374, at 393 (rejecting a city’s requiring dedication of a greenway for flood control where it could otherwise accomplish its objectives by restricting development in the greenway, noting “[t]he city has never said why a public, as opposed to a private one, was required in the interest of flood control.”

The County’s standards do require private drives serving as access for more than four lots to be designed with easements meeting the county road standards. Subdivision Ordinance § 13.08.170(1). In this case, in addition to the four lots proposed in the minor subdivision, it is clear that the private drive also serves as access to additional surrounding farming properties, thus triggering the requirement that the subdivision be designed with road easements meeting the county’s road standards. In such a case, applying the County’s road standards, even for a private road, may very well necessitate the demolition of the two existing shed structures situated on the current dirt lane if their presence would unreasonably interfere with the lane’s use as an access easement.[3] The County may still require this as a proper exercise of its regulatory authority in applying the plain language of its ordinances. Where the ordinances demand a private road of a certain width or standard to accommodate proposed development, it may be appropriately required as a condition of approval, the only difference here being that the County simply may not require that ownership of the road be turned over the County.

Conclusion

The County determined that the private drive proposed in the Applicants’ minor subdivision application was an existing public thoroughfare that was required by County ordinance to be formally dedicated as a condition of development approval. However, the County bears the burden of proving a dedication by public use by clear and convincing evidence, and the County has not met that burden where the only evidence offered in support was the inclusion of the road on the county’s road map, and where the only alleged users of the road have done so under private right.

Because no public dedication has been shown, the County cannot require the Applicants to dedicate property for a county right-of-way as a condition of approval where the County’s ordinances otherwise allow development of a minor subdivision on a private road, which the Applicants desire to do, but it may impose the private right-of-way standards stated in its ordinances, which may require the Applicants to remove any existing structures that would unreasonably interfere with easements required for a private drive.

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Jordan S. Cullimore, Lead Attorney

Office of the Property Rights Ombudsman

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NOTE:

This is an advisory opinion as defined in § 13-43-205 of the Utah Code. It does not constitute legal advice, and is not to be construed as reflecting the opinions or policy of the State of Utah or the Department of Commerce. The opinions expressed are arrived at based on a summary review of the factual situation involved in this specific matter, and may or may not reflect the opinion that might be expressed in another matter where the facts and circumstances are different or where the relevant law may have changed.

While the author is an attorney and has prepared this opinion in light of his understanding of the relevant law, he does not represent anyone involved in this matter. Anyone with an interest in these issues who must protect that interest should seek the advice of his or her own legal counsel and not rely on this document as a definitive statement of how to protect or advance his interest.

An advisory opinion issued by the Office of the Property Rights Ombudsman is not binding on any party to a dispute involving land use law. If the same issue that is the subject of an advisory opinion is listed as a cause of action in litigation, and that cause of action is litigated on the same facts and circumstances and is resolved consistent with the advisory opinion, the substantially prevailing party on that cause of action may collect reasonable attorney fees and court costs pertaining to the development of that cause of action from the date of the delivery of the advisory opinion to the date of the court’s resolution. Additionally, a civil penalty may also be available if the court finds that the opposing party—if either a land use applicant or a government entity—knowingly and intentionally violated the law governing that cause of action.

Evidence of a review by the Office of the Property Rights Ombudsman and the opinions, writings, findings, and determinations of the Office of the Property Rights Ombudsman are not admissible as evidence in a judicial action, except in small claims court, a judicial review of arbitration, or in determining costs and legal fees as explained above.

The Advisory Opinion process is an alternative dispute resolution process. Advisory Opinions are intended to assist parties to resolve disputes and avoid litigation. All of the statutory procedures in place for Advisory Opinions, as well as the internal policies of the Office of the Property Rights Ombudsman, are designed to maximize the opportunity to resolve disputes in a friendly and mutually beneficial manner. The Advisory Opinion attorney fees and civil penalty provisions, found in § 13-43-206 of the Utah Code, are also designed to encourage dispute resolution. By statute they are awarded in very narrow circumstances, and even if those circumstances are met, the judge maintains discretion regarding whether to award them.

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Endnotes

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[1] Defined in ordinance as “a non-dedicated thoroughfare or road used exclusively for private access to and from private land or developments.” Sevier County Zoning Ordinance (“Zoning Ordinance”) § 14.12.030.

[2] That is, maps alone are not likely enough, though, in certain circumstances they may lend support to the “totality of the evidence.” see, Haynes Land & Livestock Co. v. Jacob Family Chalk Creek, LLC, 2010 UT App 112, ¶ 16. In Haynes, the Court of Appeals concluded that the district court did not err in finding portions of the road to be public based primarily on historical maps because there were no living witnesses to testify of the roads use prior to the 1900s. 2010 UT App 112, ¶ 16. This does not appear to be a situation where the county’s map is the only potential source of available evidence as to the use of the road; as such, the County likely needs to show more than the mere presence of the road on a current county road map to prove the public’s use of the road.

[3] We note that the mere fact that the existing sheds may be situated to some extent on the express area of a required private access easement does not necessarily mean that demolition is unavoidably necessary, but rather, such question depends on whether the sheds’ presence would “unreasonably interfere” with the proposed use of the dirt lane as a private drive by those holding a right to use the easement for access, under the circumstances. See, e.g., Metro. Water Dist. of Salt Lake & Sandy v. Sorf, 2023 UT App 146, ¶ 45 (reinforcing the rule of mutual reasonableness in the use of easements and rejecting the adoption of a bright-line rule that the placement of any permanent structure inside an easement of definite dimensions conveyed by grant would always be unreasonable as a matter of law).