The March 22 Kane County Commission agenda brought enough constituents to fill the district courtroom regarding an appeal for Land Use, the future of the Land Use Ordinance, and the disposition of the Russell home. 

Dale Spencer related in detail with documents how his land, some in Glendale City limits and the rest in the county, all in agricultural use, was divided into two parcels over 250 acres each and still in agriculture, was determined to be a subdivision. 

He received a disclosure against his property saying he will not be issued a building permit, and was told the only way to remedy his situation was to buy it back or go through the process; roads, fire hydrants, etc. for a subdivision. 

His concern, he does not want a building permit, and the appeal process does not pertain to agriculture. That disclosure against his property is recorded for 30 years, and he wants to clear the property record. “I don’t understand what to do,” Spencer said, after explaining all of the red tape he has already gone through to resolve the issue. 

An appeal will cost $200, plus another $2,000 for county costs. Then “based on a letter I received, an engineer needs to review at a cost of an additional $750.  What I am trying to do is get my property whole (cleared).”

Representative Mike Noel stated that the state will not over-ride counties on subdivision requirements and agricultural land is exempt from plat requirements.

Commissioner Mark Habbeshaw said, “We have a bad land use ordinance and we need to fix it. Why weren’t you allowed to do an agricultural split?”

A motion to accept Dale Spencer’s appeal of the recordation of agricultural use property based on likely conflict with the Utah code regarding the subdivision of land under agricultural use properties, waive the fees, and extend the appeal for 30 days passed unanimously. Commissioner Doug Heaton said he is thinking of all landowners who sell.

Commission Heaton said of the next agenda item, the future of the Land Use Ordinance, “I feel like I should be on the other side of the table. My research is Utah State created a strict ordinance, but counties may accept, modify or reject it. I don’t believe we are required by State statute to do what we are doing.  I have a real problem with where land use has gone.  We are sacrificing rights.”

Commissioner Daniel Hulet said there are changes needed. “When we wrote this ordinance, we requested public participation. We worked on it for 18 months. We (Land Use Authority, or Planning Commission) have already made a commitment to rewrite this ordinance.”

Commissioner Habbeshaw said land use planning is a balance of needs. “I can’t support private property rights to the point where people use personal rights to do anything on their property. We need to protect agricultural lands for the good of the public. I believe we need a balance. We need input from the public.”

The commissioners motioned the Kane County Commission request the Land Use and Subdivision Authority prepare modifications with strong reliance on public participation and cooperation. It passed unanimously

On the disposition of the Russell home and the Witzle/Whitney parcel subdivision, Commissioner Heaton said, “My problem with this action is punishing an individual with a bad ordinance. We have classified his home as a public nuisance. His neighbors should address that issue. Letters I received classified him as a kind man in a like community.” Heaton requested rather than remand to the courts, they step back and see what happens with the Land Use Ordinance.

Commissioner Habbeshaw responded, “We have to be careful not to confuse the Russell situation with the Land Use Ordinance. Public rights are equally important to me as are private rights.” He then referred to commentator Glen Beck’s chart with anarchy as one extreme and total control the other extreme. 

“We are a nation of laws.  The Russells moved in and thumbed their nose to all of our regulations that are for society’s benefit. They purposefully did not comply. Now, after some time, they expect sympathy. Habbeshaw continued, if we had no regulations, there would be scattered, random, chaotic development and in the end the county taxpayer will end up paying for improvements. “Commissioner Hulet and I have seen how these things come back to bite us.”

In response to Commissioner Heaton’s proposal, Commissioner Habbeshaw explained how due process and equal protection from the 14th Amendment had not been violated. “We need to bring the Russell home and improper subdivision of Whitney into the judicial system for resolution.”

Mary Russell said, “We didn’t know about the subdivision process. We tried to resolve this with the building department. We’ve spent many hours trying to talk to people. Deputy Attorney Bernard was very rude to us.”

Harvey Russell said it is not the case as described, that they didn’t care. Since being red-tagged, not one nail has been driven.

Roy Mackelprang stated, “all this zoning is protection for buyers.”

Peterson, a supporter, said “this is an abomination if you call this due process.” Becky Lawseberry said, “Not everyone wants to move to Kane County.” Shawna Cox added. “There are people in real hardship. We have to be flexible and work with them,” and LaVoy Adair added, “We don’t want his home bulldozed.” John Whitney said, “I have a solution. Let’s get a building permit and neighbors and ward members will pitch in and help.”

Commissioner Heaton concluded the long discussion by saying, “I think we can solve the problem if friends and neighbors will come together. If we can address the rest and get the property to meet code, Mr. Habbeshaw is right. He has made many good points. The law doesn’t consider mercy. The law considers justice.  I am excited because the public is awake.”

Jim Baker and Lou Pratt had a proposed map for the right of way realignment on Grande Vermillion. Although UDOT claims the ROW claimed by Jim and Bonnie Vann, Vann believes he has clear title. “UDOT ownership never showed up in “22 title searches.”

Commissioner Habbeshaw told Vann, “We’re addressing an issue within the subdivision and aligning with UDOT claimed ROW.  I was your fan until UDOT said they had fee simple ownership of the land.  I think we are making the right decision.”

Dirk Clayson said UDOT does need to delineate this issue for many property owners. There may be 50 property owners whose deeds may be encumbered. Why is Chinle Dr. different? UDOT needs to bring forth information. This is a perfect call for an ombudsman. Either the title search is wrong or UDOT is wrong.”

The motion to approve the property exchange of Jim and Sandy Baker and the existing county road and the proposed realigned county road as presented carried unanimously. Jim Baker stated, “I believe this is the best way it could be done, if the road has to be. It is a good compromise.”

Moving on, the commissioners said it is important for everyone to respond to the 2010 census.  The census will be used to determine the number of legislative representatives on the state and federal level. The U. S. Constitution requires a census be taken every 10 years.

Byard Kershaw reported there is no right-of-way needed on the 18 acres for the new Public Safety Facility located near the Kaneplex.

Tracy Glover updated the commissioners on the Public Safety Facility. Payment procedures were established. 

Commissioner Hulet reminded all to use the MBA account, so expenditures do not affect the general fund. Glover indicated once the Environment Assessment is completed, the county is ready for construction. “We hope to break ground the first of May.”

On advice of counsel, the commission took no action on the proposed Cedar Mountain Fire Protection Charter proposed amendments. Ed Robbins presented intentions of the district.

The commission took administrative action on cooperating status, updates and approval of drafts, letters, and MOU’s with the BLM approved in the last session.

The Parcel Data Project bid was awarded to Rosenberg Associates for $7,713.

At the work meeting, the Department of Agriculture updated the commission on the African Bee. They are here. If anyone has a beehive in their yard, call the building inspector and he will notify the Department of Agriculture. They will test to see if the bees are European or African and will remove the hive. Contact Jeremy Peterson, Compliance Specialist, at 435-634-5708 or for more information.

Bridget Mackey was promoted with a grade increase from secretary to legal assistant and is budgeted for in the Attorney’s Office.

The commission voted to use undispersed HRA funds to bring the account up to HRA requirements. The issue will be revisited at the budget opening.

County Treasurer Georgia Baca brought three unpaid property tax issues for a determination. The school district purchase is exempt. Shilo Inn paid in full and wanted the penalties and interest refunded and was denied. The county attorney will check and see if SITLA is exempt regarding a lien on 2008-2009 taxes.

The public agenda ended at 10:15 p.m. The commission then met in closed meeting for litigation issues.