First Substitute S.B. 203

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AGRICULTURAL PROTECTION AREA AMENDMENTS
2 1997 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: Leonard M. Blackham
5 AN ACT RELATING TO COUNTIES; MODIFYING THE DEFINITION OF POLITICAL
6 SUBDIVISIONS; MODIFYING THE PROCESS FOR THE CREATION OF AN
7 AGRICULTURE PROTECTION AREA; AUTHORIZING A COUNTY LEGISLATIVE
8 BODY TO APPOINT AN AGRICULTURE PROTECTION ADVISORY BOARD BEFORE
9 OR AFTER RECEIPT OF A PROPOSAL TO CREATE AN AGRICULTURE PROTECTION
10 AREA; MODIFYING THE NOTICE AND HEARING PROVISIONS REGARDING A
11 PROPOSAL TO CREATE AN AGRICULTURE PROTECTION AREA; MODIFYING THE
12 PROCEDURES FOR REVIEWING A PROPOSAL; MODIFYING THE PROCEDURAL
13 PROVISIONS REGARDING USE OF EMINENT DOMAIN WITHIN AN AGRICULTURE
14 PROTECTION AREA; MODIFYING THE NOTICE REQUIREMENT WHEN REMOVING
15 LAND FROM AN AGRICULTURE PROTECTION AREA; CLARIFYING THE STATUS
16 OF LAND WITHIN AN AGRICULTURE PROTECTION AREA WITH RESPECT TO THE
17 FARMLAND ASSESSMENT ACT; MODIFYING THE APPROVAL REQUIRED FOR A
18 POLITICAL SUBDIVISION TO MAKE ZONING CHANGES; AND MAKING TECHNICAL
19 CORRECTIONS.
20 This act affects sections of Utah Code Annotated 1953 as follows:
21 AMENDS:
22 17-41-101, as last amended by Chapter 271, Laws of Utah 1995
23 17-41-201, as enacted by Chapter 58, Laws of Utah 1994
24 17-41-301, as enacted by Chapter 58, Laws of Utah 1994
25 17-41-302, as enacted by Chapter 58, Laws of Utah 1994
26 17-41-303, as enacted by Chapter 58, Laws of Utah 1994
27 17-41-304, as last amended by Chapter 222, Laws of Utah 1996

1 17-41-306, as enacted by Chapter 58, Laws of Utah 1994
2 17-41-401, as enacted by Chapter 58, Laws of Utah 1994
3 17-41-402, as enacted by Chapter 58, Laws of Utah 1994
4 17-41-403, as last amended by Chapter 222, Laws of Utah 1996
5 17-41-405, as enacted by Chapter 58, Laws of Utah 1994
6 Be it enacted by the Legislature of the state of Utah:
7 Section 1. Section 17-41-101 is amended to read:
8 17-41-101. Definitions.
9 As used in this chapter:
10 [(2)] (1) "Advisory board" means the Agriculture Protection Area Advisory Board created
11 by this chapter.
12 [(3)] (2) (a) "Agriculture production" means production for commercial purposes of crops,
13 livestock, and livestock products.
14 (b) "Agriculture production" includes the processing or retail marketing of any crops,
15 livestock, and livestock products when more than 50% of the processed or merchandised products
16 are produced by the farm operator.
17 [(1)] (3) "Agriculture protection area" means a geographic area created under the authority
18 of this chapter that is granted the specific legal protections contained in this chapter.
19 (4) "Crops, livestock, and livestock products" includes:
20 (a) land devoted to the raising of useful plants and animals with a reasonable expectation
21 of profit, including:
22 (i) forages and sod crops;
23 (ii) grains and feed crops;
24 (iii) livestock as defined in Subsection 59-2-102(18)(d);
25 (iv) trees and fruits; or
26 (v) vegetables, nursery, floral, and ornamental stock; or
27 (b) land devoted to and meeting the requirements and qualifications for payments or other
28 compensation under a crop-land retirement program with an agency of the state or federal
29 government.
30 (5) (a) "Political subdivision" means a township, county, school district, or special district.
31 (b) The inclusion of township in the definition of "political subdivision" under Subsection

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1 (5)(a) shall not be construed as an indication that a township is a political subdivision for any
2 purpose other than as that term is used in this chapter.
3 (6) "Proposal sponsors" means the owners of land in agricultural production who are
4 sponsoring the proposal for creating an agricultural protection area.
5 (7) "State agency" means each department, commission, board, council, agency,
6 institution, officer, corporation, fund, division, office, committee, authority, laboratory, library,
7 unit, bureau, panel, or other administrative unit of the state.
8 Section 2. Section 17-41-201 is amended to read:
9 17-41-201. Agriculture Protection Area Advisory Board.
10 (1) (a) The county legislative body shall appoint no more than five members from the
11 county's soil conservation district boards of supervisors to serve as the Agriculture Protection Area
12 Advisory Board.
13 (b) The county legislative body may appoint the Agriculture Protection Area Advisory
14 Board before or after receipt of a proposal to create an agriculture protection area.
15 (2) The members shall serve without salary, but the county legislative body may reimburse
16 them for expenses incurred in the performance of their duties.
17 (3) The Agriculture Protection Area Advisory Board shall:
18 (a) evaluate proposals for the establishment of agriculture protection areas and make
19 recommendations to the county legislative body about whether or not the proposal should be
20 accepted;
21 (b) provide expert advice to the planning commission and to the county legislative body
22 about:
23 (i) the desirability of the proposal;
24 (ii) the nature of agricultural production within the proposed area;
25 (iii) the relation of agricultural production in the area to the county as a whole; and
26 (iv) which agriculture production should be allowed within the agriculture protection area;
27 and
28 (c) perform all other duties required by this chapter.
29 Section 3. Section 17-41-301 is amended to read:
30 17-41-301. Proposal for creation of agriculture protection area.
31 (1) (a) [Any owner or owners of land in agricultural production may file a proposal for

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1 creation of] A proposal to create an [agricultural] agriculture protection area may be filed with the
2 [county] legislative body of the county in which the area is located.
3 (b) (i) To be accepted for processing by the county legislative body, a proposal under
4 Subsection (1)(a) shall be signed by a majority in number of all owners of real property and the
5 owners of a majority of the land area in agricultural production within the proposed agriculture
6 protection area.
7 (ii) For purposes of Subsection (b)(i), the owners of real property shall be determined by
8 the records of the county recorder.
9 (2) The proposal shall identify:
10 (a) the [land in agricultural production that the proposal sponsors wish] boundaries of the
11 land proposed to become part of an agriculture protection area;
12 (b) any limits on the types of agriculture production to be allowed within the agriculture
13 protection area; and
14 (c) for each parcel of land:
15 (i) the names of the owners of record of the land [contained within the parcel] proposed
16 to be included within the agriculture protection area;
17 (ii) the tax parcel number or account number [of] identifying each parcel; and
18 (iii) the [number or account] number of acres [as listed on the] of each parcel [tax records].
19 (3) An agriculture protection area may include within its boundaries land used for a
20 roadway, dwelling site, park, or other nonagricultural use if that land constitutes a minority of the
21 total acreage within the agriculture protection area.
22 [(3)] (4) Each county legislative body may establish:
23 (a) the manner and form for submission of proposals; and
24 (b) reasonable fees for accepting and processing the proposal.
25 [(4)] (5) Each county legislative body shall establish the minimum number of continuous
26 acres that must be included in an agriculture protection area.
27 Section 4. Section 17-41-302 is amended to read:
28 17-41-302. Notice of proposal for creation of agriculture protection area --
29 Responses.
30 (1) The county legislative body shall provide notice of the proposal by:
31 (a) publishing notice in a newspaper having general circulation within the same county as

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1 the land proposed for inclusion within an agriculture protection area; and
2 (b) posting notice at five public places, designated by the county legislative body, within[,
3 adjacent to,] or near the proposed agriculture protection area.
4 (2) The notice shall contain:
5 (a) a statement that a proposal for the creation of an agriculture protection area has been
6 filed with the county legislative body;
7 (b) a statement that the proposal will be open to public inspection in the office of the
8 county legislative body;
9 (c) a statement that any person or entity affected by the establishment of the area may,
10 within 15 days of the date of the notice, file with the county legislative body:
11 (i) written objections to the proposal; or
12 (ii) a written request [for modification of] to modify the proposal [or written objections
13 to the proposal with the county legislative body within 15 days of the date of the notice] to exclude
14 land from or add land to the proposed agriculture protection area;
15 (d) a statement that the county legislative body will submit the proposal to the advisory
16 committee and to the planning commission for review and recommendations; and
17 (e) a statement that the county legislative body will hold a public hearing to discuss and
18 hear public comment on:
19 (i) the proposal to create the agriculture protection area;
20 (ii) the recommendations of the advisory committee and planning commission; and
21 (iii) any requests for modification of the proposal and any objections to the proposal.
22 (3) (a) Any person wishing to modify the proposal for the creation of the agriculture
23 protection area shall, within 15 days after the date of the notice, file a written request for
24 modification of the proposal, which identifies specifically [which parcels] the land that should be
25 added to or removed from the proposal.
26 (b) Any person wishing to object to the proposal for the creation of the agriculture
27 protection area shall, within 15 days after the date of the notice, file a written objection to the
28 creation of the agriculture protection area.
29 Section 5. Section 17-41-303 is amended to read:
30 17-41-303. Review of proposal for creation of agricultural protection area.
31 (1) After 15 days from the date of the notice, the county legislative body shall refer the

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1 proposal and any objections and proposed modifications [and objections] to the proposal to the
2 advisory committee and planning commission for their review, comments, and recommendations.
3 (2) (a) Within 45 days after receipt of the proposal, the planning commission shall submit
4 a written report to the county legislative body that:
5 (i) [identifies] analyzes and evaluates the effect of the creation of the proposed area on the
6 county's planning policies and objectives;
7 (ii) analyzes and evaluates the proposal by applying the criteria contained in Section
8 17-41-305.
9 (iii) recommends any modifications to the [proposal] land to be included in the proposed
10 agriculture protection area;
11 [(iv) recommends any limits on the types of agriculture production to be allowed in the
12 agriculture protection area;]
13 [(v)] (iv) analyzes and evaluates any objections to the proposal; and
14 [(vi)] (v) includes a recommendation to the county legislative body to either accept, accept
15 and modify, or reject the proposal.
16 (b) Within 45 days after receipt of the proposal, the advisory board shall submit a written
17 report to the county legislative body that:
18 (i) recommends any modifications to the [proposal] land to be included in the proposed
19 agriculture protection area;
20 [(ii) recommends any limits on the types of agriculture production to be allowed in the
21 agriculture protection area;]
22 [(iii)] (ii) analyzes and evaluates the proposal by applying the criteria contained in Section
23 17-41-305.
24 [(iv)] (iii) analyzes and evaluates any objections to the proposal; and
25 [(v)] (iv) includes a recommendation to the county legislative body to either accept, accept
26 and modify, or reject the proposal.
27 (c) [If the planning commission or the advisory committee fail to submit a report within
28 the 45 days, the county legislative body shall consider their failure to report as an approval of the
29 proposal.] The county legislative body shall consider a failure of the planning commission or
30 advisory committee to submit a written report within the 45 days under Subsection (2)(a) or (b)
31 as a recommendation of that committee to approve the proposal as submitted.

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1 Section 6. Section 17-41-304 is amended to read:
2 17-41-304. Public hearing -- Review and action on proposal.
3 (1) After receipt of the written reports from the advisory committee and planning
4 commission, or after the 45 days has expired, whichever is earlier, the county legislative body
5 shall:
6 (a) schedule a public hearing;
7 (b) provide notice of the public hearing by:
8 (i) publishing notice in a newspaper having general circulation within the same county as
9 the land proposed for inclusion within the agriculture protection area; and
10 (ii) posting notice at five public places, designated by the county legislative body, within[,
11 adjacent to,] or near the proposed agriculture protection area; and
12 (c) ensure that the notice includes:
13 (i) the time, date, and place of the public hearing on the proposal;
14 (ii) a description of the proposed agriculture protection area;
15 (iii) any proposed modifications to the proposed agriculture protection area;
16 (iv) a summary of the recommendations of the advisory committee and planning
17 commission; and
18 (v) a statement that interested persons may appear at the public hearing and speak in favor
19 or against the proposal, any proposed modifications to the proposal, or the recommendations of
20 the advisory committee and planning commission.
21 (2) The county legislative body shall:
22 (a) convene the public hearing at the time, date, and place specified in the notice; and
23 (b) take verbal or written testimony from interested persons.
24 (3) (a) Within 120 days of the submission of the proposal, the county legislative body
25 shall approve, modify and approve, or reject the proposal.
26 (b) The creation of an agriculture protection area is effective [when the] at the earlier of:
27 (i) a county legislative [body approves] body's approval of a proposal or modified
28 proposal; or [when]
29 (ii) 120 days [have passed since] after submission of [the] a proposal [and] complying with
30 Subsection 17-41-301(2) if the county legislative body has failed to approve or reject the proposal
31 within that time[, whichever is earlier].

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1 (4) (a) In order to give constructive notice of the existence of the agriculture protection
2 area to all persons who have, may acquire, or may seek to acquire an interest in land in or adjacent
3 to the agriculture protection area, within ten days of the creation of an agriculture protection area,
4 the county legislative body shall file an executed document containing a legal description of the
5 agriculture protection area with:
6 (i) the county recorder of deeds; and
7 (ii) the affected county or district planning commission or township planning and zoning
8 board.
9 (b) If the legal description of the property to be included in the agriculture protection area
10 is available through the county recorder's office, the county legislative body shall use that legal
11 description in its executed document required in Subsection (4)(a).
12 (5) Within ten days of the recording of the agriculture protection area, the county
13 legislative body shall:
14 (a) send written notification to the Commissioner of Agriculture that the agriculture
15 protection area has been created; and
16 (b) include in the notification:
17 (i) the number of landowners owning land within the agriculture protection area;
18 (ii) the total acreage of the area;
19 (iii) the date of approval of the area; and
20 (iv) the date of recording.
21 (6) A county legislative body's failure to record the notice required under Subsection (4)
22 or to send the written notification under Subsection (5) does not invalidate the creation of an
23 agriculture protection area.
24 (7) The county legislative body may consider the cost of recording notice under
25 Subsection (4) and the cost of sending notification under Subsection (5) in establishing a fee under
26 Subsection 17-41-301(4)(b).
27 Section 7. Section 17-41-306 is amended to read:
28 17-41-306. Adding land to or removing land from an agriculture protection area.
29 (1) (a) Any owner may add land to an existing agriculture protection area by:
30 (i) filing a proposal with the county legislative body; and
31 (ii) obtaining the approval of the county legislative body for the addition of the land to the

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1 area.
2 (b) The county legislative body shall comply with the provisions for creating an
3 agriculture protection area in determining whether or not to accept the proposal.
4 (2) (a) Any owner may remove land from an agriculture protection area by filing a petition
5 for removal of the land from the agriculture protection area with the county legislative body.
6 (b) (i) The county legislative body shall:
7 (A) grant the petition for removal of land from an agriculture protection area even if
8 removal of the land would result in an agriculture protection area of less than the number of acres
9 established by the county legislative body as the minimum under Section 17-41-301; and
10 (B) in order to give constructive notice of the removal to all persons who have, may
11 acquire, or may seek to acquire an interest in land in or adjacent to the agriculture protection area
12 and the land removed from the agriculture protection area, file a legal description of the revised
13 boundaries of the agriculture protection area with the county recorder of deeds and the affected
14 county or district planning commission or township planning and zoning board.
15 (ii) The remaining land in the agriculture protection area is still an agriculture protection
16 area.
17 (3) (a) When a municipality annexes any land that is part of an agriculture protection area,
18 the county legislative body shall, within 30 days after the land is annexed, review the feasibility
19 of that land remaining in the agriculture protection area according to the procedures and
20 requirements of Section 17-41-307.
21 (b) If appropriate, the county legislative body shall remove the annexed land from the
22 agriculture protection area.
23 Section 8. Section 17-41-401 is amended to read:
24 17-41-401. Farmland Assessment Act benefits not affected.
25 [Any land placed in] (1) Creation of an agriculture protection area [is subject to the
26 provisions] shall not impair the ability of land within the area to obtain the benefits of Title 59,
27 Chapter 2, Part 5, Farmland Assessment Act.
28 (2) The eligibility of land for the benefits of Title 59, Chapter 2, Part 5, Farmland
29 Assessment Act, shall be determined exclusively by the provisions of that act, notwithstanding the
30 land's location within an agriculture protection area.
31 Section 9. Section 17-41-402 is amended to read:

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1 17-41-402. Limitations on local regulations.
2 (1) Each political subdivision within which an agriculture protection area is created shall
3 encourage the continuity, development, and viability of agriculture within the area by not enacting
4 local laws, ordinances, or regulations that would unreasonably restrict farm structures or farm
5 practices within the area unless those laws, ordinances, or regulations bear a direct relationship to
6 public health or safety.
7 (2) A political subdivision may not change the zoning designation of or zoning regulations
8 affecting land within an agriculture protection area unless it receives written approval for the
9 change from all the landowners within the agriculture protection area affected by the change.
10 Section 10. Section 17-41-403 is amended to read:
11 17-41-403. Nuisances.
12 (1) Each political subdivision shall ensure that any of its laws or ordinances that define
13 or prohibit a public nuisance exclude from the definition or prohibition any agricultural activity
14 or operation within an agriculture protection area conducted using [normal farming methods]
15 sound agricultural practices unless that activity or operation bears a direct relationship to public
16 health or safety.
17 (2) In a civil action for nuisance involving agriculture activities, it is a complete defense
18 if:
19 (a) the agriculture activities were conducted within an agriculture protection area; and
20 (b) the agriculture activities were not in violation of any federal, state, or local law or
21 regulation relating to the alleged nuisance or were conducted according to sound agricultural
22 practices.
23 (3) For any new subdivision development located in whole or in part within 300 feet of
24 the boundary of an Agriculture Protection Area, the owner of the development shall provide notice
25 on any plat filed with the county recorder the following notice:
26 "Agriculture Protection Area
27 This property is located in the vicinity of an established [Agriculture Protection Area]
28 agriculture protection area in which normal agricultural uses and activities have been
29 afforded the highest priority use status. It can be anticipated that such agricultural uses and
30 activities may now or in the future be conducted on property included in the agriculture
31 protection area. The use and enjoyment of this property is expressly conditioned on acceptance

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

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1 (b) If the county legislative body and the advisory board fail to act within the 60 days or
2 such further time as the county legislative body establishes, the condemnation shall be considered
3 [approved] rejected.
4 (6) The county legislative body or the advisory board may request the county attorney to
5 bring an action to enjoin any condemnor from violating any provisions of this section.
6 Section 12. Coordination clause.
7 If this bill and 4th Substitute H.B. 363, Municipal and County Law Amendments, both
8 pass, it is the intent of the Legislature that the amendments to Subsection 17-14-101(5) made by
9 this bill be deleted.

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