Advisory Opinion 211

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Parties: Ida Marie Ruch on behalf of homeowners within the Eagle Valley Ranches neighborhood; Iron County

Issued:  June 18, 2019

TOPIC CATEGORIES:

Interpretation of Ordinances

Counties have no legal obligation to maintain Class D roads, even where residents dedicated the roadways to the County in response to the County or School District’s request.

Counties must apply and enforce all currently applicable land use ordinances.  The County Commission may consider and approve future rezoning requests and proposed changes to land use regulations.

DISCLAIMER 

The Office of the Property Rights Ombudsman makes every effort to ensure that the legal analysis of each Advisory Opinion is based on a correct application of statutes and cases in existence when the Opinion was prepared.  Over time, however, the analysis of an Advisory Opinion may be altered because of statutory changes or new interpretations issued by appellate courts.  Readers should be advised that Advisory Opinions provide general guidance and information on legal protections afforded to private property, but an Opinion should not be considered legal advice. Specific questions should be directed to an attorney to be analyzed according to current laws.

  

Advisory Opinion

Advisory Opinion Requested By:                  Ida Maria Ruch on behalf of homeowners within the

  …..                                                              Eagle Valley Ranches neighborhood

Local Government Entity:                             Iron County

Type of Property:                                          Residential

Date of this Advisory Opinion:                      June 18, 2019

Opinion Authored By:                                   Marcie M. Jones, Attorney

…                                                                 Office of the Property Rights Ombudsman

Issues

I.       Is Iron County legally obligated to the residents of the Eagle Valley Ranches neighborhood to maintain 1700 West and 5400 North?

II.     Must Iron County honor the R-5 zoning already established throughout the Eagle Ranches subdivision?

Summary of Advisory Opinion

Iron County has no legal obligation to maintain Class D roads, including those portions of 1700 West and 5400 North within the Eagle Valley Ranches neighborhood. The fact that Eagle Valley Ranches residents dedicated these roadways to the County in response the County or School District’s request does not change that conclusion nor trigger any obligation.

Iron County must apply and enforce all currently applicable land use ordinances, including those relating to the R-5 zoning classification. However, the Iron County Commission may consider and approve future rezoning requests and proposed changes to land use regulations.

Review

A Request for an Advisory Opinion may be filed at any time prior to the rendering of a final decision by a local land use appeal authority under the provisions of Utah Code § 13-43-205.  An advisory opinion is meant to provide an early review, before any duty to exhaust administrative remedies, of significant land use questions so that those involved in a land use application or other specific land use disputes can have an independent review of an issue.  It is hoped that such a review can help the parties avoid litigation, resolve differences in a fair and neutral forum, and understand the relevant law.  The decision is not binding, but, as explained at the end of this opinion, may have some effect on the long-term cost of resolving such issues in the courts.

A Request for an Advisory Opinion was received from Ida Maria Ruch on behalf of residents of Eagle Valley Ranches on April 25, 2019.  A copy of that request was sent via certified mail to Jonathan T. Whitaker, County Clerk for Iron County, 68 South 100 East, PO Box 429, Parowan, Utah 84761.  Iron County received the request on May 7, 2019.

Evidence

The Ombudsman’s Office reviewed the following relevant documents and information prior to completing this Advisory Opinion:

  1. Request for Advisory Opinion, with attachments, submitted by Ida Maria Ruch, resident of Eagle Valley Ranches and on behalf of residents of Eagle Valley Ranches, received April 25, 2019.
  2. Response submitted by G. Michael Edwards, with attachments, Iron County Attorney, received May 22, 2019, corrected on May 23, 2019.
  3. Response submitted by Ida Maria Ruch, with attachments, submitted by Ida Maria Ruch, resident of Eagle Valley Ranches on behalf of residents of Eagle Valley Ranches, received May 29, 2019.
  4. Response submitted by Ida Maria Ruch, submitted by Ida Maria Ruch, resident of Eagle Valley Ranches on behalf of residents of Eagle Valley Ranches, received June 3, 2019.

Background

Eagle Valley Ranches is a large-lot residential neighborhood in unincorporated Iron County, Utah.  According to information provided by the County, the original developer of Eagle Valley Ranches divided this area into residential lots of five to twenty acres each.  These lots have vehicular access off 1700 West and 5400 North, both of which were originally private roads.  This neighborhood was created prior to the adoption of the current Subdivision Construction Design Standards, but apparently complied with regulations then in effect.

In 2006, the Iron County School District (“School District”) sought to place a sewer line within the existing roadway easement for 1700 West to serve Three Peaks Elementary School, then under construction nearby.  In conjunction with Iron County School District, Cedar City, and Enoch City, Iron County reached out to Eagle Valley Ranch property owners (“Property Owners”) seeking concurrence in placing the sewer line within the existing roadway easement then owned and maintained by the Property Owners.  According to meeting minutes, as part of the proposed sewer line construction, one stub out to each lot on 1700 West would be provided at no cost and the customary $800 connection fee would be waived.  See Minutes of the Eagle Valley Ranches Owners Association and Water Company Special Meeting held April 14, 2006, p. 1.  Property Owners were also advised that according to County policy then in effect, any future subdivision of their property would require the roadway be dedicated to the public.

As the County preferred, rather than merely grant the School District use of the existing roadway easement, Property Owners instead deeded 1700 West within their neighborhood to Iron County (“County”).  Property Owners also deeded that portion of 5400 North within the neighborhood to the County, although it is not clear from the record when this occurred.

Meeting minutes indicate that the School District assured Property Owners that it would return the road to “as good or better condition as before they started construction.”  See Minutes of the Eagle Valley Ranches Owners Association and Water Company Special Meeting held April 14, 2006, pp. 1 – 2.  The Property Owners assert that the School District did not live up to this promise and complain that 1700 West was left with emerging sinkholes, numerous potholes, and uneven skim patching within the roadway as well as a steep drop off adjacent to the newly constructed sewer line.  Property Owners state that the road has now deteriorated to the point that it is an extreme safety hazard.

In materials submitted, Property Owners request that the County repair the paved sections as needed, grade the gravel sections regularly, keep the weeds on the shoulders mowed, and plow the snow in the winter.

The Iron County code states that only those roads improved to established County roadway standards and adopted in to the Class B roadway system will be maintained by the County.  Iron County Code § 12.04.060.  Therefore, the County has determined they have no current obligation to maintain 1700 West and 5400 North, neither of which are Class B roads.

The Property Owners have requested this Advisory Opinion to determine whether Iron County has a legal obligation to repair and maintain 1700 West and 5400 North within the Eagle Valley Ranch neighborhood.  The Property Owners have also requested that this Advisory Opinion address whether or not the County must maintain and enforce the current R-5 zoning.

Analysis

I.     County’s obligation to maintain 1700 West and 5600 North

State law classifies all existing roadways within the state.  This classification system determines jurisdiction and control of existing roads, and allocates responsibility for road construction and maintenance.  The classification system is as follows:

  • Class A Roads: State highways are designated as Class A state roads and fall under the jurisdiction and control of the state. See Utah Code 72-3-102.  State law provides that “[t]he department shall construct and maintain each state highway using funds made available for that purpose.”  Utah Code §72-3-102(5).
  • Class B Roads: County roads are designated Class B roads, and include all public highways, roads, and streets within the state that lie outside incorporated municipalities, are not designated as state highways, and have been designated as County roads. See Utah Code 72-3-103.  State law provides that “[t]he county shall construct and maintain each county road using funds available for that purpose.”  Utah Code §72-3-103(5). 
  • Class C Roads: City streets are Class C roads, which generally include those highways, roads, and streets within the corporate limits of the municipalities.  See Utah Code 72-3-104.  State law regulates the use of Transportation Funds set aside for Class C roads and regulates their maintenance in certain situations.  See Utah Code §72-3-104(5 – 8).
  • Class D Roads: Class D roads are all those which do not fit into another category. They include “any road, way, or other land surface route that has been or is established by use or constructed and has been maintained to provide for usage by the public for vehicles with four or more wheels that is not a class A, class B, or class C road . . .”  Utah Code 72-3-105(1).

State law does not include any obligation to construct or maintain Class D roads.  For example, see Utah Code §72-3-105.  Also, state law allows, but does not require, counties to allocate a portion of road funds to maintain Class D roads.  The relevant statute provides that “[a] county or municipality may . . . use up to 30% of . . . road funds allocated to the county or municipality to . . . maintain class D roads.”  Utah Code § 72-2-110.

Iron County has not adopted either 1700 West or 5400 North into the Class B road system.  It follows that because these roads have not been designated Class B roads, are not a part of the state highway system (Class A), or lie within a city (Class C), by default, these are Class D roads.

State law gives counties broad discretion to adopt road policies which do not conflict with state law, providing that “a county may enact ordinances and make regulations not in conflict with law for the control, construction, alteration, repair, and use of all public roads and highways in the county outside of cities and towns.”  Utah Code § 17-50-309.

Iron County has determined that it will not spend taxpayer money improving or maintaining Class D roads.  This decision is within Iron County’s discretion. As mentioned above, state law does not obligate counties to construct or maintain Class D roads nor does it require transportation funds be spent on their improvement.

Instead, the County has determined to maintain only those roads which have been brought up to County standards and adopted into the Class B roadway system.  See Iron County Code § 12.04.  Iron County has established criteria for accepting roads into the Class B system.  See id.  These criteria include “roads within existing subdivisions are required to be brought up to an acceptable county maintenance standard.  This may be accomplished by the formation of a special improvement district.”  Iron County Code § 12.04.060.

In the record, Property Owners repeatedly argue that their situation should be treated differently because the County came to them with the request for the road right of way, which they graciously complied with.  Property Owners further argue that much of the road maintenance required on 1700 West is needed because the road was damaged during sewer line construction and never adequately repaired.  Property Owners feel they have been treated unfairly and that they believe “County officials have not lived up to their moral and professional obligation to make sure promises made were kept”.  See Response submitted by Ida Maria Ruch, with attachments, submitted by Ida Maria Ruch, resident of Eagle Valley Ranches on behalf of residents of Eagle Valley Ranches, received May 29, 2019.

The County depicts the situation in a different light.  The County maintains that it was the School District, and not the County, that needed the sewer line right of way, and that it was the School District which promised to perform any post-construction repairs.  The County further points out that in discussions leading up to the roadway dedication, Property Owners were told that the roads would need to be brought up to current County road standards before the County would begin their maintenance.  See Minutes of the Eagle Valley Ranches Owners Association and Water Company Special Meeting held April 14, 2006, pp. 2 – 4.

In materials submitted, the County explains that it is more expensive to maintain roads that do not meet County standards.  Poorly engineered or constructed paved roads are costly to maintain and dirt and gravel roads must be periodically leveled and graded.  The County has determined that it is unfair to expect the majority of taxpayers to pay for improvements that benefit only a limited number of residents, and therefore, will not use County funds to improve roads within subdivisions not meeting current standards.

The adopted policy of not improving or maintaining Class D roads is within the County’s discretion to make.  Unfortunately for the Property Owners, the County does not recognize an exception to this policy for Class D roadways they requested ownership of, or where another government entity failed to live up to their promises.  While Property Owners assert that, given the history, the County has a moral obligation to repair and maintain these roads, we cannot find legal support for this position.

Because state law does not require the maintenance of Class D roads, the County is well within their authority to require that roads be brought up to established County standards and adopted into the Class B roadway system before taking on responsibility of for their maintenance.  Accordingly, Iron County has no legal obligation to maintain Class D roads generally, and 1700 West or 5400 North in particular.  

II.     County’s obligation to honor current R-5 zoning classification

As a matter of law, Iron County must apply and enforce the currently applicable land use ordinances, including those relating to the R-5 zoning classification.  See generally Iron County Code § 17.72.  However, the County Commission has broad authority to adopt and amend zoning ordinances, and other land use regulations, as part of their authority to promote the public welfare.  See for example Utah Code § 17-27a-102.  Therefore, rezoning requests and changes to the existing land use requirements in the R-5 zone may be considered and approved according to the established process at any time in the future.

Conclusion

Iron County has no legal obligation to maintain Class D roads, including those portions of 1700 West and 5400 North within the Eagle Valley Ranches neighborhood.  The fact that Eagle Valley Ranches residents dedicated these roadways to the County in response the County or School District’s request does not change that conclusion nor trigger any obligation.

Iron County maintains only those roads accepted into their Class B roadway system.  If Eagle Valley Ranch residents improve portions of these roadways to established County road standards, the County will add them to the Class B schedule and begin maintaining them.  The County has offered assistance to residents in creating a Special Improvement District (SID) toward this end.

Iron County must apply and enforce all currently applicable land use ordinances, including those relating to the R-5 zoning classification; however, the Iron County Commission may consider and approve future rezoning requests and proposed changes to land use regulations.

Brent N. Bateman, Lead Attorney

Office of the Property Rights Ombudsman

 …

NOTE:

This is an advisory opinion as defined in § 13-43-205 of the Utah Code.  It does not constitute legal advice, and is not to be construed as reflecting the opinions or policy of the State of Utah or the Department of Commerce.  The opinions expressed are arrived at based on a summary review of the factual situation involved in this specific matter, and may or may not reflect the opinion that might be expressed in another matter where the facts and circumstances are different or where the relevant law may have changed. 

While the author is an attorney and has prepared this opinion in light of his understanding of the relevant law, he does not represent anyone involved in this matter.  Anyone with an interest in these issues who must protect that interest should seek the advice of his or her own legal counsel and not rely on this document as a definitive statement of how to protect or advance his interest. 

An advisory opinion issued by the Office of the Property Rights Ombudsman is not binding on any party to a dispute involving land use law.  If the same issue that is the subject of an advisory opinion is listed as a cause of action in litigation, and that cause of action is litigated on the same facts and circumstances and is resolved consistent with the advisory opinion, the substantially prevailing party on that cause of action may collect reasonable attorney fees and court costs pertaining to the development of that cause of action from the date of the delivery of the advisory opinion to the date of the court’s resolution.

Evidence of a review by the Office of the Property Rights Ombudsman and the opinions, writings, findings, and determinations of the Office of the Property Rights Ombudsman are not admissible as evidence in a judicial action, except in small claims court, a judicial review of arbitration, or in determining costs and legal fees as explained above.

The Advisory Opinion process is an alternative dispute resolution process.  Advisory Opinions are intended to assist parties to resolve disputes and avoid litigation.  All of the statutory procedures in place for Advisory Opinions, as well as the internal policies of the Office of the Property Rights Ombudsman, are designed to maximize the opportunity to resolve disputes in a friendly and mutually beneficial manner.  The Advisory Opinion attorney fees provisions, found in Utah Code § 13-43-206, are also designed to encourage dispute resolution.  By statute they are awarded in very narrow circumstances, and even if those circumstances are met, the judge maintains discretion regarding whether to award them.