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S.B. 203 Enrolled

    

Corrected Copy

    
AGRICULTURAL PROTECTION AREA AMENDMENTS

    
1997 GENERAL SESSION

    
STATE OF UTAH

    
Sponsor: Leonard M. Blackham

    AN ACT RELATING TO COUNTIES; MODIFYING THE DEFINITION OF POLITICAL
    SUBDIVISIONS; MODIFYING THE PROCESS FOR THE CREATION OF AN
    AGRICULTURE PROTECTION AREA; AUTHORIZING A COUNTY LEGISLATIVE
    BODY TO APPOINT AN AGRICULTURE PROTECTION ADVISORY BOARD
    BEFORE OR AFTER RECEIPT OF A PROPOSAL TO CREATE AN AGRICULTURE
    PROTECTION AREA; MODIFYING THE NOTICE AND HEARING PROVISIONS
    REGARDING A PROPOSAL TO CREATE AN AGRICULTURE PROTECTION
    AREA; MODIFYING THE PROCEDURES FOR REVIEWING A PROPOSAL;
    MODIFYING THE PROCEDURAL PROVISIONS REGARDING USE OF EMINENT
    DOMAIN WITHIN AN AGRICULTURE PROTECTION AREA; MODIFYING THE
    NOTICE REQUIREMENT WHEN REMOVING LAND FROM AN AGRICULTURE
    PROTECTION AREA; CLARIFYING THE STATUS OF LAND WITHIN AN
    AGRICULTURE PROTECTION AREA WITH RESPECT TO THE FARMLAND
    ASSESSMENT ACT; MODIFYING THE APPROVAL REQUIRED FOR A POLITICAL
    SUBDIVISION TO MAKE ZONING CHANGES; MAKING TECHNICAL
    CORRECTIONS; AND PROVIDING A COORDINATION CLAUSE.
    This act affects sections of Utah Code Annotated 1953 as follows:
    AMENDS:
         17-41-101, as last amended by Chapter 271, Laws of Utah 1995
         17-41-201, as enacted by Chapter 58, Laws of Utah 1994
         17-41-301, as enacted by Chapter 58, Laws of Utah 1994
         17-41-302, as enacted by Chapter 58, Laws of Utah 1994
         17-41-303, as enacted by Chapter 58, Laws of Utah 1994
         17-41-304, as last amended by Chapter 222, Laws of Utah 1996


         17-41-306, as enacted by Chapter 58, Laws of Utah 1994
         17-41-401, as enacted by Chapter 58, Laws of Utah 1994
         17-41-402, as enacted by Chapter 58, Laws of Utah 1994
         17-41-403, as last amended by Chapter 222, Laws of Utah 1996
         17-41-405, as enacted by Chapter 58, Laws of Utah 1994
    Be it enacted by the Legislature of the state of Utah:
        Section 1. Section 17-41-101 is amended to read:
         17-41-101. Definitions.
        As used in this chapter:
        [(2)] (1) "Advisory board" means the Agriculture Protection Area Advisory Board created
    by this chapter.
        [(3)] (2) (a) "Agriculture production" means production for commercial purposes of crops,
    livestock, and livestock products.
        (b) "Agriculture production" includes the processing or retail marketing of any crops,
    livestock, and livestock products when more than 50% of the processed or merchandised products
    are produced by the farm operator.
        [(1)] (3) "Agriculture protection area" means a geographic area created under the authority
    of this chapter that is granted the specific legal protections contained in this chapter.
        (4) "Crops, livestock, and livestock products" includes:
        (a) land devoted to the raising of useful plants and animals with a reasonable expectation of
    profit, including:
        (i) forages and sod crops;
        (ii) grains and feed crops;
        (iii) livestock as defined in Subsection 59-2-102(18)(d);
        (iv) trees and fruits; or
        (v) vegetables, nursery, floral, and ornamental stock; or
        (b) land devoted to and meeting the requirements and qualifications for payments or other
    compensation under a crop-land retirement program with an agency of the state or federal

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    government.
        (5) (a) "Political subdivision" means a township, county, school district, or special district.
        (b) The inclusion of township in the definition of "political subdivision" under Subsection
    (5)(a) shall not be construed as an indication that a township is a political subdivision for any
    purpose other than as that term is used in this chapter.
        (6) "Proposal sponsors" means the owners of land in agricultural production who are
    sponsoring the proposal for creating an [agricultural] agriculture protection area.
        (7) "State agency" means each department, commission, board, council, agency, institution,
    officer, corporation, fund, division, office, committee, authority, laboratory, library, unit, bureau,
    panel, or other administrative unit of the state.
        Section 2. Section 17-41-201 is amended to read:
         17-41-201. Agriculture Protection Area Advisory Board.
        (1) (a) The county legislative body shall appoint no more than five members from the
    county's soil conservation district boards of supervisors to serve as the Agriculture Protection Area
    Advisory Board.
        (b) The county legislative body may appoint the Agriculture Protection Area Advisory
    Board before or after receipt of a proposal to create an agriculture protection area.
        (2) The members shall serve without salary, but the county legislative body may reimburse
    them for expenses incurred in the performance of their duties.
        (3) The Agriculture Protection Area Advisory Board shall:
        (a) evaluate proposals for the establishment of agriculture protection areas and make
    recommendations to the county legislative body about whether or not the proposal should be
    accepted;
        (b) provide expert advice to the planning commission and to the county legislative body
    about:
        (i) the desirability of the proposal;
        (ii) the nature of agricultural production within the proposed area;
        (iii) the relation of agricultural production in the area to the county as a whole; and

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        (iv) which agriculture production should be allowed within the agriculture protection area;
    and
        (c) perform all other duties required by this chapter.
        Section 3. Section 17-41-301 is amended to read:
         17-41-301. Proposal for creation of agriculture protection area.
        (1) (a) [Any owner or owners of land in agricultural production may file a proposal for
    creation of] A proposal to create an [agricultural] agriculture protection area may be filed with the
    [county] legislative body of the county in which the area is located.
        (b) (i) To be accepted for processing by the county legislative body, a proposal under
    Subsection (1)(a) shall be signed by a majority in number of all owners of real property and the
    owners of a majority of the land area in agricultural production within the proposed agriculture
    protection area.
        (ii) For purposes of Subsection (1)(b)(i), the owners of real property shall be determined by
    the records of the county recorder.
        (2) The proposal shall identify:
        (a) the [land in agricultural production that the proposal sponsors wish] boundaries of the
    land proposed to become part of an agriculture protection area;
        (b) any limits on the types of agriculture production to be allowed within the agriculture
    protection area; and
        (c) for each parcel of land:
        (i) the names of the owners of record of the land [contained within the parcel] proposed to
    be included within the agriculture protection area;
        (ii) the tax parcel number or account number [of] identifying each parcel; and
        (iii) the [number or account] number of acres [as listed on the] of each parcel [tax records].
        (3) An agriculture protection area may include within its boundaries land used for a
    roadway, dwelling site, park, or other nonagricultural use if that land constitutes a minority of the
    total acreage within the agriculture protection area.
        [(3)] (4) Each county legislative body may establish:

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        (a) the manner and form for submission of proposals; and
        (b) reasonable fees for accepting and processing the proposal.
        [(4)] (5) Each county legislative body shall establish the minimum number of continuous
    acres that must be included in an agriculture protection area.
        Section 4. Section 17-41-302 is amended to read:
         17-41-302. Notice of proposal for creation of agriculture protection area -- Responses.
        (1) The county legislative body shall provide notice of the proposal by:
        (a) publishing notice in a newspaper having general circulation within the same county as
    the land proposed for inclusion within an agriculture protection area; and
        (b) posting notice at five public places, designated by the county legislative body, within[,
    adjacent to,] or near the proposed agriculture protection area.
        (2) The notice shall contain:
        (a) a statement that a proposal for the creation of an agriculture protection area has been filed
    with the county legislative body;
        (b) a statement that the proposal will be open to public inspection in the office of the county
    legislative body;
        (c) a statement that any person or entity affected by the establishment of the area may, within
    15 days of the date of the notice, file with the county legislative body:
        (i) written objections to the proposal; or
        (ii) a written request [for modification of] to modify the proposal [or written objections to
    the proposal with the county legislative body within 15 days of the date of the notice] to exclude land
    from or add land to the proposed agriculture protection area;
        (d) a statement that the county legislative body will submit the proposal to the advisory
    committee and to the planning commission for review and recommendations; and
        (e) a statement that the county legislative body will hold a public hearing to discuss and hear
    public comment on:
        (i) the proposal to create the agriculture protection area;
        (ii) the recommendations of the advisory committee and planning commission; and

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        (iii) any requests for modification of the proposal and any objections to the proposal.
        (3) (a) Any person wishing to modify the proposal for the creation of the agriculture
    protection area shall, within 15 days after the date of the notice, file a written request for
    modification of the proposal, which identifies specifically [which parcels] the land that should be
    added to or removed from the proposal.
        (b) Any person wishing to object to the proposal for the creation of the agriculture protection
    area shall, within 15 days after the date of the notice, file a written objection to the creation of the
    agriculture protection area.
        Section 5. Section 17-41-303 is amended to read:
         17-41-303. Review of proposal for creation of agriculture protection area.
        (1) After 15 days from the date of the notice, the county legislative body shall refer the
    proposal and any objections and proposed modifications [and objections] to the proposal to the
    advisory committee and planning commission for their review, comments, and recommendations.
        (2) (a) Within 45 days after receipt of the proposal, the planning commission shall submit
    a written report to the county legislative body that:
        (i) [identifies] analyzes and evaluates the effect of the creation of the proposed area on the
    county's planning policies and objectives;
        (ii) analyzes and evaluates the proposal by applying the criteria contained in Section
    17-41-305[.];
        (iii) recommends any modifications to the [proposal] land to be included in the proposed
    agriculture protection area;
        [(iv) recommends any limits on the types of agriculture production to be allowed in the
    agriculture protection area;]
        [(v)] (iv) analyzes and evaluates any objections to the proposal; and
        [(vi)] (v) includes a recommendation to the county legislative body [to] either to accept,
    accept and modify, or reject the proposal.
        (b) Within 45 days after receipt of the proposal, the advisory board shall submit a written
    report to the county legislative body that:

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        (i) recommends any modifications to the [proposal] land to be included in the proposed
    agriculture protection area;
        [(ii) recommends any limits on the types of agriculture production to be allowed in the
    agriculture protection area;]
        [(iii)] (ii) analyzes and evaluates the proposal by applying the criteria contained in Section
    17-41-305[.];
        [(iv)] (iii) analyzes and evaluates any objections to the proposal; and
        [(v)] (iv) includes a recommendation to the county legislative body [to] either to accept,
    accept and modify, or reject the proposal.
        (c) [If the planning commission or the advisory committee fail to submit a report within the
    45 days, the county legislative body shall consider their failure to report as an approval of the
    proposal.] The county legislative body shall consider a failure of the planning commission or
    advisory committee to submit a written report within the 45 days under Subsection (2)(a) or (b) as
    a recommendation of that committee to approve the proposal as submitted.
        Section 6. Section 17-41-304 is amended to read:
         17-41-304. Public hearing -- Review and action on proposal.
        (1) After receipt of the written reports from the advisory committee and planning
    commission, or after the 45 days has expired, whichever is earlier, the county legislative body shall:
        (a) schedule a public hearing;
        (b) provide notice of the public hearing by:
        (i) publishing notice in a newspaper having general circulation within the same county as
    the land proposed for inclusion within the agriculture protection area; and
        (ii) posting notice at five public places, designated by the county legislative body, within[,
    adjacent to,] or near the proposed agriculture protection area; and
        (c) ensure that the notice includes:
        (i) the time, date, and place of the public hearing on the proposal;
        (ii) a description of the proposed agriculture protection area;
        (iii) any proposed modifications to the proposed agriculture protection area;

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        (iv) a summary of the recommendations of the advisory committee and planning
    commission; and
        (v) a statement that interested persons may appear at the public hearing and speak in favor
    of or against the proposal, any proposed modifications to the proposal, or the recommendations of
    the advisory committee and planning commission.
        (2) The county legislative body shall:
        (a) convene the public hearing at the time, date, and place specified in the notice; and
        (b) take verbal or written testimony from interested persons.
        (3) (a) Within 120 days of the submission of the proposal, the county legislative body shall
    approve, modify and approve, or reject the proposal.
        (b) The creation of an agriculture protection area is effective [when the] at the earlier of:
        (i) a county legislative [body approves] body's approval of a proposal or modified proposal;
    or [when]
        (ii) 120 days [have passed since] after submission of [the] a proposal [and] complying with
    Subsection 17-41-301(2) if the county legislative body has failed to approve or reject the proposal
    within that time[, whichever is earlier].
        (4) (a) In order to give constructive notice of the existence of the agriculture protection area
    to all persons who have, may acquire, or may seek to acquire an interest in land in or adjacent to the
    agriculture protection area, within ten days of the creation of an agriculture protection area, the
    county legislative body shall file an executed document containing a legal description of the
    agriculture protection area with:
        (i) the county recorder of deeds; and
        (ii) the affected county or district planning commission or township planning and zoning
    board.
        (b) If the legal description of the property to be included in the agriculture protection area
    is available through the county recorder's office, the county legislative body shall use that legal
    description in its executed document required in Subsection (4)(a).
        (5) Within ten days of the recording of the agriculture protection area, the county legislative

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    body shall:
        (a) send written notification to the Commissioner of Agriculture that the agriculture
    protection area has been created; and
        (b) include in the notification:
        (i) the number of landowners owning land within the agriculture protection area;
        (ii) the total acreage of the area;
        (iii) the date of approval of the area; and
        (iv) the date of recording.
        (6) A county legislative body's failure to record the notice required under Subsection (4) or
    to send the written notification under Subsection (5) does not invalidate the creation of an agriculture
    protection area.
        (7) The county legislative body may consider the cost of recording notice under Subsection
    (4) and the cost of sending notification under Subsection (5) in establishing a fee under Subsection
    17-41-301(4)(b).
        Section 7. Section 17-41-306 is amended to read:
         17-41-306. Adding land to or removing land from an agriculture protection area.
        (1) (a) Any owner may add land to an existing agriculture protection area by:
        (i) filing a proposal with the county legislative body; and
        (ii) obtaining the approval of the county legislative body for the addition of the land to the
    area.
        (b) The county legislative body shall comply with the provisions for creating an agriculture
    protection area in determining whether or not to accept the proposal.
        (2) (a) Any owner may remove land from an agriculture protection area by filing a petition
    for removal of the land from the agriculture protection area with the county legislative body.
        (b) (i) The county legislative body shall:
        (A) grant the petition for removal of land from an agriculture protection area even if removal
    of the land would result in an agriculture protection area of less than the number of acres established
    by the county legislative body as the minimum under Section 17-41-301; and

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        (B) in order to give constructive notice of the removal to all persons who have, may acquire,
    or may seek to acquire an interest in land in or adjacent to the agriculture protection area and the land
    removed from the agriculture protection area, file a legal description of the revised boundaries of the
    agriculture protection area with the county recorder of deeds and the affected county or district
    planning commission or township planning and zoning board.
        (ii) The remaining land in the agriculture protection area is still an agriculture protection
    area.
        (3) (a) When a municipality annexes any land that is part of an agriculture protection area,
    the county legislative body shall, within 30 days after the land is annexed, review the feasibility of
    that land remaining in the agriculture protection area according to the procedures and requirements
    of Section 17-41-307.
        (b) If appropriate, the county legislative body shall remove the annexed land from the
    agriculture protection area.
        Section 8. Section 17-41-401 is amended to read:
         17-41-401. Farmland Assessment Act benefits not affected.
        [Any land placed in] (1) Creation of an agriculture protection area [is subject to the
    provisions] shall not impair the ability of land within the area to obtain the benefits of Title 59,
    Chapter 2, Part 5, Farmland Assessment Act.
        (2) The eligibility of land for the benefits of Title 59, Chapter 2, Part 5, Farmland
    Assessment Act, shall be determined exclusively by the provisions of that act, notwithstanding the
    land's location within an agriculture protection area.
        Section 9. Section 17-41-402 is amended to read:
         17-41-402. Limitations on local regulations.
        (1) Each political subdivision within which an agriculture protection area is created shall
    encourage the continuity, development, and viability of agriculture within the area by not enacting
    local laws, ordinances, or regulations that would unreasonably restrict farm structures or farm
    practices within the area unless those laws, ordinances, or regulations bear a direct relationship to
    public health or safety.

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        (2) A political subdivision may not change the zoning designation of or zoning regulations
    affecting land within an agriculture protection area unless it receives written approval for the change
    from all the landowners within the agriculture protection area affected by the change.
        Section 10. Section 17-41-403 is amended to read:
         17-41-403. Nuisances.
        (1) Each political subdivision shall ensure that any of its laws or ordinances that define or
    prohibit a public nuisance exclude from the definition or prohibition any agricultural activity or
    operation within an agriculture protection area conducted using [normal farming methods] sound
    agricultural practices unless that activity or operation bears a direct relationship to public health or
    safety.
        (2) In a civil action for nuisance involving [agriculture] agricultural activities, it is a
    complete defense if:
        (a) the [agriculture] agricultural activities were conducted within an agriculture protection
    area; and
        (b) the [agriculture] agricultural activities were not in violation of any federal, state, or local
    law or regulation relating to the alleged nuisance or were conducted according to sound agricultural
    practices.
        (3) For any new subdivision development located in whole or in part within 300 feet of the
    boundary of an agriculture protection area, the owner of the development shall provide notice on any
    plat filed with the county recorder the following notice:
    
"Agriculture Protection Area

        This property is located in the vicinity of an established [Agriculture Protection Area]
    agriculture protection area in which normal agricultural uses and activities have been
    afforded the highest priority use status. It can be anticipated that such agricultural uses and
    activities may now or in the future be conducted on property included in the agriculture
    protection area. The use and enjoyment of this property is expressly conditioned on
    acceptance of any annoyance or inconvenience which may result from such normal
    agricultural uses and activities."

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        Section 11. Section 17-41-405 is amended to read:
         17-41-405. Eminent domain restrictions.
        (1) A political subdivision having or exercising eminent domain powers may not condemn
    for any purpose any land within an agriculture protection area that is being used for [agriculture]
    agricultural production unless it has obtained approval [of] from the county legislative body and the
    advisory board according to the procedures and requirements of this section.
        (2) Any condemnor wishing to condemn property within an agriculture protection area shall
    file a notice of condemnation with the county legislative body and the agriculture protection area's
    advisory board at least 30 days before filing an eminent domain complaint.
        (3) The county legislative body and the advisory board shall:
        (a) hold a joint public hearing on the proposed condemnation at a location within [or near]
    the county in which the agriculture protection area is located;
        (b) publish notice of the time, date, place, and purpose of the public hearing in a newspaper
    of general circulation within the agriculture protection area; and
        (c) post notice of the time, date, place, and purpose of the public hearing in five conspicuous
    public places, designated by the county legislative body, within or [adjacent to] near the agriculture
    protection area.
        (4) (a) If the condemnation is for highway purposes or for the disposal of solid or liquid
    waste materials, the county legislative body and the advisory board may approve the condemnation
    only if there is no reasonable and prudent alternative to the use of the land within the agriculture
    protection area for the project.
        (b) If the condemnation is for any other purpose, the county legislative body and the
    advisory board may approve the condemnation only if:
        (i) the proposed condemnation would not have an unreasonably adverse effect upon the
    preservation and enhancement of agriculture within the agriculture protection area; or
        (ii) there is no reasonable and prudent alternative to the use of the land within the agriculture
    protection area for the project.
        (5) (a) Within 60 days of receipt of the notice of condemnation, the county legislative body

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    and the advisory board shall approve or reject the proposed condemnation.
        (b) If the county legislative body and the advisory board fail to act within the 60 days or
    such further time as the county legislative body establishes, the condemnation shall be considered
    [approved] rejected.
        (6) The county legislative body or the advisory board may request the county attorney to
    bring an action to enjoin any condemnor from violating any provisions of this section.
        Section 12. Coordination clause.
        If this bill and 4th Substitute H.B. 363, Municipal and County Law Amendments, both pass,
    it is the intent of the Legislature that the amendments to Subsection 17-41-101(5) made by this bill
    be deleted.

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