To Take or Not To Take, That Is The Question
By Adam Dunn
Toquerville Zoning Districts Viewer — The city’s Highway Commercial Zones are pink. The lower pink zone is the subject of this post.
Some Legal Background
Taking Defined
“Taking” is a very important term in United States law. Often referred to as a “taking” or “eminent domain” or even “condemnation”, it is the process in our state and country by which a governmental entity obtains ownership of private land for public use.
While our founding fathers contemplated that the day may come when the government would need to obtain private land for public uses, they were very conscientious to protect our private property rights. Enshrined in our Bill of Rights is the unequivocal restriction on government that it may not deprive any person “of life, liberty, or property, without due process of law;…nor shall private property be taken for public use, without just compensation.”
In other words, the government may take our private property for public uses, but it must comply with due process and must pay us for our property if it does take it.
the process of taking
This process of taking private land for public use often occurs when a city, for instance, needs to obtain private land in order to widen a road. In such instances, the road may have existed for some time but uses and traffic patterns necessitate widening that road. In that case, the city may condemn, or take, land on both sides of the road from various private property owners so that it can widen the road due to increased use of that roadway. When this happens, those owners must be paid just compensation for the land that is taken to widen the road.
Similarly, a city may determine that it wants to put in an entirely new roadway to bypass its city core. It may decide that by syphoning traffic away from the city core, it will preserve the “small town feel” of the city and preserve its heritage. When this process begins, the city needs to obtain title to the property it intends to use for that roadway.
Generally, in the planning phase of such a new road, a city must budget not only for the work to construct the road, but also for the costs for acquiring the land for that roadway. Again, it cannot simply take the land it wants to use to build that new bypass road without paying for it.
Prudence & challenges with taking
However, what happens when a city fails to properly plan for such a road project? What if, for instance, the city fails to contemplate the full costs of not only the construction of that road, but the constitutional obligation it has to pay just compensation for the land upon which it desires to construct that new road?
Just compensation is essentially the fair market value of the property to be acquired for that new road. It is true that “just compensation” must be done on a case-by-case basis. Certainly, the fair market value of a property in New York City, for example, is not the same as the fair market value of a property in rural Utah.
Knowing and planning for the value of the land it wants to take is a critical part of the budgeting and planning for the new roadway. Because of this, a city must undoubtedly project, or estimate, all the land it needs for the project and the cost to acquire that land. All of this should be prudently done before beginning construction on that new road.
Just as a prudent citizen would not begin construction on a new home without an understanding of all of the costs that will be associated with that new home, a city cannot reasonably begin construction on a sizeable road project without having at least a good estimate of both the construction costs and the costs of taking the private property that will be used for the new road.
Police Power
In addition to a city’s right to condemn or “take” someone’s private property for public uses (of course with the obligation to pay the fair market value for that private property), a city also possesses a “police power”. Determining the proper zoning of property is rooted in that police power.
A city’s police power is to be exercised for the “health, safety, and welfare” of its citizens. In order to do this, a city is charged with both promoting prosperity while also improving morals, peace, good order, aesthetics, and more. It must also provide fundamental fairness and orderly growth while protecting property values.
By exchanging property for zoning, a city is more likely to forfeit that "police power" by not using zoning to benefit all its residents.
(Image from The Utah Court of Appeals, Wallingford v. Moab City)
How this applies to Toquerville
Toquerville’s Bypass road
For whatever reason, the City of Toquerville presently needs land from a particular landowner in order to complete its Bypass Road. The land Toquerville needs from the landowner is a 120 foot wide strip of land consisting of approximately 11 acres. The landowner from whom the City of Toquerville (the “City”) needs this sizeable strip of land is the Robert Browning Lichfield Family Limited Partnership.
The City could have, and still can, follow Utah Code and “take” or condemn that land. In doing so, the fair market value of that land would be determined and Toquerville would then be required to pay the Robert Browning Lichfield Family Limited Partnership for its private property. Yet, to date, Toquerville has not “taken” or condemned that land.
a zone change application for non-bypass property
The Robert Browning Lichfield Family Limited Partnership owns other property (“Property”) that is not adjacent to the Toquerville Bypass Road. Lichfield submitted a zone change application (“Application”) to the City on or about November 23, 2022, for that Property.
Notably, that Property not only is not adjacent to the Bypass Road, but it does not abut any highway. In spite of that Property not abutting a highway, the Application sought to have the Property rezoned “highway commercial”. At that time, the other Property was zoned as a single family residential and was part of the R-1-20 District in Toquerville.
Alleged Confidential Deals with a Past City Council
Approximately two months before applying for that zone change, Robert Lichfield emailed Ty Bringhurst, then a member of the Toquerville City Council, saying:
“History
It is very likely that no property is being interrupted and changed aesthetically more than our property for benefit of the by-pass. We did this many years ago to give the city a bridge to their goal of retaining the old town while creating a new area for growth and progress.
When we did it, the City made a number of general agreements and promises to us that we could use our property to maximum benefit. It was impossible then to be real specific with so much unknown ahead for both of us.
We now understand the city is asking us to give more property and access than we originally agreed to. We are open to that but need to make sure we can maximize the rest of our property as was originally agreed with more specific identification.
This approach gives the City what it needs without without [sic] occurring any hard costs. Further since we are at the edge of the city in an very isolated area, we would have minimum effect on anyone in the city. We are so isolated that we don't receive many of the basic City Services like roads and trash delivery directly to each house.
Lastly, it allows the City to honor the spirit of their agreements with us. With that in mind, we need our property on the West Side of the Creek to be highway Commercial so it can be developed as needed or desired for the following:
RV park
Hotels or Apartments
vacation rentals
Glamping
Camping
Also if needed or desired:
gas station
shops and stores
restaurants
strip malls
water park
alpine slide
amphitheater
theaters
wedding and events centers
miniature golf
river walk
bike and walking trails
In short, a beautiful and fun place that is well isolated from residential areas but can be enjoyed by the whole city being right off the bypass. While providing a good tax base and income to the city.
If you need anything else, let me know
Bob Lichfield
Sent from my iPhone”
I am not sure what Mr. Lichfield fully intended with this email, but a city council is not obligated to adhere to unrecorded, confidential “general agreements and promises” made by previous city council members about future zone change requests.
Zoning and more on zoning
Zone changes must meet standards
Utah Code and Toquerville Ordinance outlines the process and standard for zone changes. For instance, the City Code of Toquerville provides that a zone change “shall be submitted to the planning commission ... [and t]he planning commission may recommend approval, modification and approval, or denial of the proposed zone amendment …”. City Code of Toquerville § 10-8-3(A)(1). City Code also mandates that “No zone district amendment shall be approved unless the planning commission finds that the amendment meets the following standards and conditions:
Addresses a recognized and demonstrated need in the community;
Will be compatible with the character of the neighborhood and surrounding structures in use, scale, mass and circulation;
Will not result in an over intensive use of the land or excessive depletion of natural resources;
Will not have a material adverse effect on community capital improvement programs;
Will not require a level of community facilities and services greater than that which is available;
Will not result in undue traffic congestion and traffic hazards;
Will not cause significant air, odor, water, light or noise pollution;
Will not otherwise be detrimental to the health, safety or welfare of the present or future inhabitants of the city; and
Will meet the requirements of the general plan.
City Code of Toquerville § 10-8-3(B) (emphasis added).
The City Code also states that “the term ‘shall’ is always mandatory and the term ‘may’ is permissive.” City Code of Toquerville § 10-1-4(B). Notably, the City Code also addresses how zoning must be consistent with the City’s general plan. City Code of Toquerville § 10-9a-401 et. seq.
planning commission Unanimously Recommends Denial of zone change
The zone change Application for the other Property owned by Robert Browning Lichfield Family Limited Partnership was heard in a public hearing before the Planning Commission of Toquerville City on January 11, 2023. One of the concerns raised by several members of the Planning Commission in that hearing is that they had no information of what will be undertaken on the Property or what the land will be used for after the grant of the zone change.
One member of the Planning Commission even found that the granting of the Application would equate to an excessive depletion of natural resources or over intensive use of the land. Another member of the Planning Commission stated that he could not see how the Application fits the criteria prescribed by the City Code of Toquerville § 10-8-3(B).
After due deliberation, and after not finding that the Application met the standards and conditions of City Code of Toquerville § 10-8-3(B), the Planning Commission voted unanimously to recommend the denial of the Application.
a quid pro quo (you scratch my back, I’ll scratch yours) on the table: zoning for land
After that Planning Commission Meeting, the Toquerville City Council considered the zone change Application filed by Robert Browning Lichfield Family Limited Partnership on January 18, 2023. In that council meeting, the Mayor of Toquerville noted that the City once took around six (6) acres from Lichfield categorized as highway commercial for the construction of a bypass road and that the City is asking for eleven (11) more acres from him.
The Mayor said that “I wanna remind the City Council that we are asking for another eleven acres from Bob to finish the road.” A member of the City Council said that “we took what they had as highway commercial, and they can’t do anything right now and that's why I’m hung up on the whole thing .... I just feel like we need to give back what we've taken”. A member of the City Council also said, “[w]hat do I give back to Litchfield if I’m taking highway commercial land.”
In that hearing, members of the City Council stated that they did not know what kind of development would be made on the Property. Lichfield’s representative at the hearing did not and would not disclose what kind of development would be made on the Property. The City council did not talk about how the zone change would meet the criteria of City Code of Toquerville § 10-8-3(B) or how it would promote “health, safety, and welfare” of its citizens or improve morals, peace, good order, aesthetics, or provide fundamental fairness and orderly growth while protecting property values.
A member of the City Council highlighted the fact that the Planning Commission was unanimous in not recommending approval of the Application. In addition, A member of the City Council recognized that no part of the Property abuts any major highway, a requirement for the highway commercial zone.
After much discussion, the zone change application decision was tabled at that meeting.
city council overturns unanimous planning commission Recommendation
Then, on February 1, 2023, the City Council had a final council meeting regarding the Application. In that meeting, a member of the City Council said that “[m]y problem with this is we took away highway commercial from them and I’m looking to give that back. That is the goal.”
The City Council then overturned the unanimous recommendation of the Planning Commission and granted the zone change on a three-to-two voting result.
While the Council is not bound by a Planning Commission recommendation, it is bound to follow its own ordinances and to comply with due process by not approving any zoning for which the Planning Commission did not find the 9 factors listed above, and which is inconsistent with the general plan.
Later, a City Council member said that he approved the Application because he felt that by constructing the bypass road, the City diminished the use of Lichfield’s property and that he understood that the zone change is one of the ways they could give back to Lichfield. Another City Council member said that he voted in favor of the Application because the City needed additional land from Lichfield and that the city councilman is “only interested in getting the bypass built. Whatever it takes to get it done.”
More on the City Codes
The Toquerville Code provides that a purpose of its zoning laws is “[t]o preserve the natural beauty and topography of the city and to preserve the outstanding natural, cultural or historical features, to ensure appropriate development with regard to these features and to assure the proper use and management of the natural beauty and resources of the city.” City Code of Toquerville at §10-1-3(A).
The Toquerville Code also provides that an additional purpose of its zoning laws is “[t]o guide future growth, provide for the harmonious and coordinated development of the city (in conjunction with the city’s general plan), and to protect and conserve the value of land throughout the city and the value of buildings and improvements upon the land.” City Code of Toquerville at §10-1-3(B).
The Toquerville Code also provides its ordinances, “…together with the city general plan, shall guide the use of all land with the corporate boundaries of the city…” and that “…the type and intensity of land use … shall conform to the land uses shown in the city master plan.” City Code of Toquerville at § 10-1-5. It goes on that “[t]he city general plan is a … general guide for making land use decisions[; … i]t describes the community’s physical development goals and where various land uses are desired.” City Code of Toquerville at § 10-7-1.
The Code states further that “[t]he current general plan was adopted after careful study, significant public input, and several review hearings by both the planning commission and the city council.” City Code of Toquerville at § 10-7-3.
Toquerville’s Code states that parcels are to be rezoned to ensure that all zoning is consistent with the general plan. See City Code of Toquerville § 10-7-2. Another mandatory provision of Toquerville Code provides that any amendments to the general plan shall (i) not result in “‘island’ or ‘peninsula’ zoning”, (ii) meet a demonstrated need in the community; (iii) not have an adverse impact on contiguous properties, and (iv) other numerous standards. See City Code of Toquerville § 10-7-4(B)(1-9).
Pictured right: a screenshot from the Toquerville Zoning Districts Viewer.
The pink area was zoned Highway Commercial by the City Council, even though Toquerville Code provides that any amendments to the general plan shall (i) not result in “‘island’ or ‘peninsula’ zoning.”
The property in question is not adjacent to the Bypass Road and the property does not abut any highway, which is required for Highway Commercial zoning.
Zoning is to benefit all citizens generally, not a specific landowner only
At the January 18 City Council meeting, one City Council member, Gary Chaves, who voted against the zoning application said “[t]he intended use was unknown. The Planning Commission did not recommend it, and [he] did not feel it fit the general plan.” He expressed an obligation to follow the city ordinances and not change zoning for one person, even though that person was a good person who had contributed much to the city.
There was other discussion initiated by Councilman Todd Sands, who voted against the application, about how these soon-to-be Highway Commercial zoned parcels were not on the highway.
where things stand
code violations result in a lawsuit
These, and many other reasons, are why some surrounding neighbors opposed this zone change but felt powerless. Following the city meetings and private discussions with neighbors, Raymond Bence, whose property is adjacent to the other property the City Council rezoned to highway commercial, brought legal action to invalidate the zone change. The Bences believed they were bringing this lawsuit on behalf of themselves and the neighbors in order to get Toquerville to do what it should have done to begin with in order to get land for the Bypass Road.
zoning not “just compensation” for land
Neither Utah Code, nor the City Code of Toquerville give Toquerville the right to relinquish its policing power by trading a zone change for private property nor is this ever defined as “just compensation” under the constitution or Utah Code. This is a violation of due process of law.
In fact, the Utah Court of Appeals has ruled that a contract zoning agreement was an illegal act because municipalities must exercise their police power for the general welfare of all citizens, not for a specific landowner. Indeed, a contract between a private citizen and the City where the City gives a zone change in exchange for a promise of land is just wrong.
why are zoning changes prohibited in exchange for land needed by a city?
A city cannot acquire land in exchange for zoning or other favors. For example, a land worth $50,000, with a change in zoning could then be worth millions. Rather than unfairly enrich an individual landowner at the determent of surrounding landowners, the city has the following options if it needs to acquire land:
1) If the landowner wishes to sell the land, the city can directly purchase the land for its fair market value.
2) Even if the landowner does not want to sell the land, the city can “take” or condemn the property if it follows the proper procedures and pays the fair market value of the property.
3) If the landowner wants land owned by the city, the city can either sell it to him or exchange another property of the same value.
4) If the landowner wants to donate the land, the city can acquire donated property without compensation.
currently in limbo
The pending lawsuit by Raymond Bence that seeks to void the zone change granted by Toquerville to Robert Browning Lichfield Family Limited Partnership is currently on appeal with the Utah Court of Appeals. However, in spite of Robert Lichfield emailing that:
“We now understand the city is asking us to give more property and access than we originally agreed to … [and asking] the City to honor the spirit of their agreements with [him, and that] we need our property on the West Side of the Creek to be highway Commercial…”,
…and in spite of Toquerville granting the zone change, Robert Browning Lichfield Family Limited Partnership still has not deeded the extra 11 acres needed for the Bypass Road to Toquerville.
conclusion: Where do we go from here
To take or not to take was a question that should have been asked before the road was being built, and certainly before council members granted a zone change as a way to pay Robert Lichfield back. However, now, with the Bypass Road having been built on the property owned by the Robert Browning Lichfield Family Limited Partnership, the question that should have been asked is a moot point.
The way things stand, corrections need to be made for the city to get back on track and do things the right way. This requires the city to “take” or condemn the remaining property needed for the road and on which they have already built a portion of the road, and to rescind the Highway Commercial zoning that was an illegal favor, or “payment”, for land.
Adam C. Dunn is an attorney in St George, Utah