H.B. 381

1

AGRICULTURE PROTECTION AREA PROVISIONS
2 1997 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: Craig W. Buttars
5 AN ACT RELATING TO COUNTIES; AUTHORIZING A COUNTY LEGISLATIVE BODY
6 TO APPOINT AN AGRICULTURE PROTECTION ADVISORY BOARD BEFORE OR
7 AFTER RECEIPT OF A PROPOSAL TO CREATE AN AGRICULTURE PROTECTION
8 AREA; MODIFYING THE NOTICE AND HEARING PROVISIONS REGARDING A
9 PROPOSAL TO CREATE AN AGRICULTURE PROTECTION AREA; MODIFYING THE
10 PROCEDURES FOR REVIEWING A PROPOSAL; MODIFYING THE PROCEDURAL
11 PROVISIONS REGARDING USE OF EMINENT DOMAIN WITHIN AN AGRICULTURE
12 PROTECTION AREA; AND MAKING TECHNICAL CORRECTIONS.
13 This act affects sections of Utah Code Annotated 1953 as follows:
14 AMENDS:
15 17-41-201, as enacted by Chapter 58, Laws of Utah 1994
16 17-41-302, as enacted by Chapter 58, Laws of Utah 1994
17 17-41-303, as enacted by Chapter 58, Laws of Utah 1994
18 17-41-304, as last amended by Chapter 222, Laws of Utah 1996
19 17-41-402, as enacted by Chapter 58, Laws of Utah 1994
20 17-41-403, as last amended by Chapter 222, Laws of Utah 1996
21 17-41-405, as enacted by Chapter 58, Laws of Utah 1994
22 Be it enacted by the Legislature of the state of Utah:
23 Section 1. Section 17-41-201 is amended to read:
24 17-41-201. Agriculture Protection Area Advisory Board.
25 (1) (a) The county legislative body shall appoint no more than five members from the
26 county's soil conservation district boards of supervisors to serve as the Agriculture Protection Area
27 Advisory Board.

1 (b) The county legislative body may appoint the Agriculture Protection Area Advisory
2 Board before or after receipt of a proposal to create an agriculture protection area.
3 (2) The members shall serve without salary, but the county legislative body may reimburse
4 them for expenses incurred in the performance of their duties.
5 (3) The Agriculture Protection Area Advisory Board shall:
6 (a) evaluate proposals for the establishment of agriculture protection areas and make
7 recommendations to the county legislative body about whether or not the proposal should be
8 accepted;
9 (b) provide expert advice to the planning commission and to the county legislative body
10 about:
11 (i) the desirability of the proposal;
12 (ii) the nature of agricultural production within the proposed area;
13 (iii) the relation of agricultural production in the area to the county as a whole; and
14 (iv) which agriculture production should be allowed within the agriculture protection area;
15 and
16 (c) perform all other duties required by this chapter.
17 Section 2. Section 17-41-302 is amended to read:
18 17-41-302. Notice of proposal for creation of agriculture protection area --
19 Responses.
20 (1) The county legislative body shall provide notice of the proposal by:
21 (a) publishing notice in a newspaper having general circulation within the same county as
22 the land proposed for inclusion within an agriculture protection area; and
23 (b) posting notice at five public places, designated by the county legislative body, within[,
24 adjacent to,] or near the proposed agriculture protection area.
25 (2) The notice shall contain:
26 (a) a statement that a proposal for the creation of an agriculture protection area has been
27 filed with the county legislative body;
28 (b) a statement that the proposal will be open to public inspection in the office of the
29 county legislative body;
30 (c) a statement that any person or entity affected by the establishment of the area may,
31 within 15 days of the date of the notice, file with the county legislative body:

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1 (i) written objections to the proposal; or
2 (ii) a written request [for modification of] to modify the proposal [or written objections
3 to the proposal with the county legislative body within 15 days of the date of the notice] to exclude
4 land from or add land to the proposed agriculture protection area;
5 (d) a statement that the county legislative body will submit the proposal to the advisory
6 committee and to the planning commission for review and recommendations; and
7 (e) a statement that the county legislative body will hold a public hearing to discuss and
8 hear public comment on:
9 (i) the proposal to create the agriculture protection area;
10 (ii) the recommendations of the advisory committee and planning commission; and
11 (iii) any requests for modification of the proposal and any objections to the proposal.
12 (3) (a) Any person wishing to modify the proposal for the creation of the agriculture
13 protection area shall, within 15 days after the date of the notice, file a written request for
14 modification of the proposal, which identifies specifically [which parcels] the land that should be
15 added to or removed from the proposal.
16 (b) Any person wishing to object to the proposal for the creation of the agriculture
17 protection area shall, within 15 days after the date of the notice, file a written objection to the
18 creation of the agriculture protection area.
19 Section 3. Section 17-41-303 is amended to read:
20 17-41-303. Review of proposal for creation of agricultural protection area.
21 (1) After 15 days from the date of the notice, the county legislative body shall refer the
22 proposal and any objections and proposed modifications [and objections] to the proposal to the
23 advisory committee and planning commission for their review, comments, and recommendations.
24 (2) (a) Within 45 days after receipt of the proposal, the planning commission shall submit
25 a written report to the county legislative body that:
26 (i) [identifies] analyzes and evaluates the effect of the creation of the proposed area on the
27 county's planning policies and objectives;
28 (ii) analyzes and evaluates the proposal by applying the criteria contained in Section
29 17-41-305.
30 (iii) recommends any modifications to the [proposal] land to be included in the proposed
31 agriculture protection area;

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1 [(iv) recommends any limits on the types of agriculture production to be allowed in the
2 agriculture protection area;]
3 [(v)] (iv) analyzes and evaluates any objections to the proposal; and
4 [(vi)] (v) includes a recommendation to the county legislative body to either accept, accept
5 and modify, or reject the proposal.
6 (b) Within 45 days after receipt of the proposal, the advisory board shall submit a written
7 report to the county legislative body that:
8 (i) recommends any modifications to the [proposal] land to be included in the proposed
9 agriculture protection area;
10 [(ii) recommends any limits on the types of agriculture production to be allowed in the
11 agriculture protection area;]
12 [(iii)] (ii) analyzes and evaluates the proposal by applying the criteria contained in Section
13 17-41-305.
14 [(iv)] (iii) analyzes and evaluates any objections to the proposal; and
15 [(v)] (iv) includes a recommendation to the county legislative body to either accept, accept
16 and modify, or reject the proposal.
17 (c) [If the planning commission or the advisory committee fail to submit a report within
18 the 45 days, the county legislative body shall consider their failure to report as an approval of the
19 proposal.] The county legislative body shall consider a failure of the planning commission or
20 advisory committee to submit a written report within the 45 days under Subsection (2)(a) or (b)
21 as a recommendation of that committee to approve the proposal as submitted.
22 Section 4. Section 17-41-304 is amended to read:
23 17-41-304. Public hearing -- Review and action on proposal.
24 (1) After receipt of the written reports from the advisory committee and planning
25 commission, or after the 45 days has expired, whichever is earlier, the county legislative body
26 shall:
27 (a) schedule a public hearing;
28 (b) provide notice of the public hearing by:
29 (i) publishing notice in a newspaper having general circulation within the same county as
30 the land proposed for inclusion within an agriculture protection area; and
31 (ii) posting notice at five public places, designated by the county legislative body, within[,

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1 adjacent to,] or near the proposed agriculture protection area;
2 (c) ensure that the notice includes:
3 (i) the time, date, and place of the public hearing on the proposal;
4 (ii) a description of the proposed agriculture protection area;
5 (iii) any proposed modifications to the proposed agriculture protection area;
6 (iv) a summary of the recommendations of the advisory committee and planning
7 commission; and
8 (v) a statement that interested persons may appear at the public hearing and speak in favor
9 or against the proposal, any proposed modifications to the proposal, or the recommendations of
10 the advisory committee and planning commission.
11 (2) The county legislative body shall:
12 (a) convene the public hearing at the time, date, and place specified in the notice; and
13 (b) take verbal or written testimony from interested persons.
14 (3) (a) Within 120 days of the submission of the proposal, the county legislative body
15 shall approve, modify and approve, or reject the proposal.
16 (b) The creation of an agriculture protection area is effective when the county legislative
17 body approves a proposal or modified proposal or when 120 days have passed since submission
18 of the proposal and the county legislative body has failed to approve or reject the proposal within
19 that time, whichever is earlier.
20 (4) (a) In order to give constructive notice of the existence of the agriculture protection
21 area to all persons who have, may acquire, or may seek to acquire an interest in land in or adjacent
22 to the agriculture protection area, within ten days of the creation of an agriculture protection area,
23 the county legislative body shall file an executed document containing a legal description of the
24 agriculture protection area with:
25 (i) the county recorder of deeds; and
26 (ii) the planning commission.
27 (b) If the legal description of the property to be included in the agriculture protection area
28 is available through the county recorder's office, the county legislative body shall use that legal
29 description in its executed document required in Subsection (4)(a).
30 (5) Within ten days of the recording of the agriculture protection area, the county
31 legislative body shall:

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1 (a) send written notification to the Commissioner of Agriculture that the agriculture
2 protection area has been created;
3 (b) include in the notification:
4 (i) the number of landowners owning land within the agriculture protection area;
5 (ii) the total acreage of the area;
6 (iii) the date of approval of the area; and
7 (iv) the date of recording.
8 (6) A county legislative body's failure to record the notice required under Subsection (4)
9 or to send the written notification under Subsection (5) does not invalidate the creation of an
10 agriculture protection area.
11 (7) The county legislative body may consider the cost of recording notice under
12 Subsection (4) and the cost of sending notification under Subsection (5) in establishing a fee under
13 Subsection 17-41-301(3)(b).
14 Section 5. Section 17-41-402 is amended to read:
15 17-41-402. Limitations on local regulations.
16 (1) Each political subdivision within which an agriculture protection area is created shall
17 encourage the continuity, development, and viability of agriculture within the area by not enacting
18 local laws, ordinances, or regulations that would unreasonably restrict farm structures or farm
19 practices within the area unless those laws, ordinances, or regulations bear a direct relationship to
20 public health or safety.
21 (2) A political subdivision may not change the zoning designation of land within an
22 agriculture protection area unless it receives written approval for the change from all the
23 landowners within the agriculture protection area affected by the change.
24 Section 6. Section 17-41-403 is amended to read:
25 17-41-403. Nuisances.
26 (1) Each political subdivision shall ensure that any of its laws or ordinances that define
27 or prohibit a public nuisance exclude from the definition or prohibition any agricultural activity
28 or operation within an agriculture protection area conducted using [normal farming methods]
29 sound agricultural practices unless that activity or operation bears a direct relationship to public
30 health or safety.
31 (2) In a civil action for nuisance involving agriculture activities, it is a complete defense

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1 if:
2 (a) the agriculture activities were conducted within an agriculture protection area; and
3 (b) the agriculture activities were not in violation of any federal, state, or local law or
4 regulation relating to the alleged nuisance or were conducted according to sound agricultural
5 practices.
6 (3) For any new subdivision development located in whole or in part within 300 feet of
7 the boundary of an Agriculture Protection Area, the owner of the development shall provide notice
8 on any plat filed with the county recorder the following notice:
9 "Agriculture Protection Area
10 This property is located in the vicinity of an established [Agriculture Protection Area]
11 agriculture protection area in which normal agricultural uses and activities have been
12 afforded the highest priority use status. It can be anticipated that such agricultural uses and
13 activities may now or in the future be conducted on property included in the agriculture
14 protection area. The use and enjoyment of this property is expressly conditioned on
15 acceptance of any annoyance or inconvenience which may result from such normal
16 agricultural uses and activities."
17 Section 7. Section 17-41-405 is amended to read:
18 17-41-405. Eminent domain restrictions.
19 (1) A political subdivision having or exercising eminent domain powers may not condemn
20 for any purpose any land within an agriculture protection area that is being used for agriculture
21 production unless it has obtained approval [of] from the county legislative body and the advisory
22 board according to the procedures and requirements of this section.
23 (2) Any condemnor wishing to condemn property within an agriculture protection area
24 shall file a notice of condemnation with the county legislative body and the agriculture protection
25 area's advisory board at least 30 days before filing an eminent domain complaint.
26 (3) The county legislative body and the advisory board shall:
27 (a) hold a joint public hearing on the proposed condemnation at a location within [or near]
28 the county in which the agriculture protection area is located;
29 (b) publish notice of the time, date, place, and purpose of the public hearing in a
30 newspaper of general circulation within the agriculture protection area; and
31 (c) post notice of the time, date, place, and purpose of the public hearing in five

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1 conspicuous public places, designated by the county legislative body, within or [adjacent to] near
2 the agriculture protection area.
3 (4) (a) If the condemnation is for highway purposes or for the disposal of solid or liquid
4 waste materials, the county legislative body and the advisory board may approve the condemnation
5 only if there is no reasonable and prudent alternative to the use of the land within the agriculture
6 protection area for the project.
7 (b) If the condemnation is for any other purpose, the county legislative body and the
8 advisory board may approve the condemnation only if:
9 (i) the proposed condemnation would not have an unreasonably adverse effect upon the
10 preservation and enhancement of agriculture within the agriculture protection area; or
11 (ii) there is no reasonable and prudent alternative to the use of the land within the
12 agriculture protection area for the project.
13 (5) (a) Within 60 days of receipt of the notice of condemnation, the county legislative body
14 and the advisory board shall approve or reject the proposed condemnation.
15 (b) If the county legislative body and the advisory board fail to act within the 60 days or
16 such further time as the county legislative body establishes, the condemnation shall be considered
17 [approved] rejected.
18 (6) The county legislative body or the advisory board may request the county attorney to
19 bring an action to enjoin any condemnor from violating any provisions of this section.




Legislative Review Note
as of 2-10-97 5:25 PM

A limited legal review of this bill raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel

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