Melville v. Salt Lake County, 13734

• Decision Date: 03 June 1975
• Docket Number: No. 13734,13734
• Citation: 536 P.2d 133
• Parties: Marvin A. MELVILLE and Renee B. Melville, et al., Plaintiffs and Appellants, v. SALT LAKE COUNTY, a body politic, et al., Defendants and Respondents.
• Court: Utah Supreme Court

Page 133

536 P.2d 133

Marvin A. MELVILLE and Renee B. Melville, et al., Plaintiffs and Appellants, v. SALT LAKE COUNTY, a body politic, et al., Defendants and Respondents.

No. 13734.

Supreme Court of Utah.

June 3, 1975.

Joseph S. Knowlton, Salt Lake City, for plaintiffs-appellants.

R. Paul Van Dam, Salt Lake County Atty., Kent T. Lewis, John G. Avery, Deputy Salt Lake County Attys., Salt Lake City, for defendants-respondents.

ELLETT, Justice:

The plaintiffs appeal from an adverse ruling holding that the albion basin was properly and legally zoned so that no house could be erected on less than fifty acres of ground. They contend that the zoning ordinance is capricious and arbitrary and that it was not legally enacted.

It will be noted that Salt Lake City, which derives a part of its culinary water from the basin, makes no contention of pollution; that the County Fire Department makes no claim of fire hazard; and that the County Board of Health makes no adverse claim to the erection of houses on smaller parcels of land.

What is rather obvious is that the Bureau of Land Management of the Federal Government does desire to secure the land in the basin for recreational purposes.

The testimony shows that without the zoning ordinance the land is worth many thousands of dollars per acre and with the ordinance it is worth less than ten per cent of its former value.

Mr. Blomquist, a county commissioner at the time the ordinance was enacted, testified as follows:

Q. The record shows this FR 50 zoning was put into effect in November of 1971 after the time the temporary regulations was in effect. This FR 50 wasn't put in specifically to curtail plaintiffs' property from being developed, was it?

A. I don't think there was any question but it was the intention of the County Commissioners to block that property from being developed.

A. I think it was aimed at the plaintiffs because they had been in for a building permit on a site that had been approved as a subdivision. We didn't want that building going on, or their permit, and it had already been approved. And it was indicated to the County Commission that they could go ahead and build because the subdivisions had been approved, and we didn't want them getting a building permit and building buildings. So we did everything we could to stop them from doing that.

If the ordinance was not validly enacted, it will not be necessary for this court to determine whether it was arbitrary and capricious. Let us look at the manner in which the ordinance came to be upon the books.

Prior to 1971 the land in Albion Basin was completely unzoned. During that year the defendants placed a temporary restraint on building for a period of not to exceed six months in order to secure a report and advice from the County Planning Commission. This was done in accordance with the provisions of Section 17--27--19, U.C.A.1953. Then in November, 1971, the defendants attempted to amend the unzoned area and gave notice of a public meeting to be held prior thereto by means of one publication in a paper of general circulation in Salt Lake County pursuant to the requirements of Section 17--27--14, U.C.A.1953.

Now, in order to enact a valid zoning ordinance, the defendants must hold a public hearing and give at least thirty days' prior notice thereof by publishing four notices in a newspaper having general circulation in the county. ¹

The question is then posed: Can unzoned land be initially zoned by an amendment, or must it be covered by a new ordinance? In other words, can there be an amendment when there is nothing to amend?

By publishing only one notice, the defendants could only amend a zone.

If the law is as claimed by the respondents, then the Commission could zone an acre in an uninhabited section of the county by publishing notice four times, and thereafter any part of the county could be zoned and new districts created by giving only one notice in a newspaper having general circulation in the county. The purpose of the requirement for four publications is wise in that it is much more likely to get the public's attention and thereby have a more representative cross section of interested people than would a single publication.

The fact that these plaintiffs or some of them may have known of the public meeting does not cure the defect, as the land might have been zoned differently or not at all if a greater number of citizens had voiced their feelings at the hearing. It does not make sense to amend a zoning regulation on land that has no regulation covering it at all. Such action is the adoption of a new regulation instead of the amendment of an old one.

We hold that when a zoning regulation is to be...