A new Pima County ordinance that takes effect in mid-September will impose County review on all divisions of land, except land that is not in a residential zoning classification, if any of the new parcels is smaller than ten acres. Under the new ordinance, if you divide your land into five or fewer parcels, any of which is smaller than ten acres, without getting a land division permit from the County, the County will not issue a building permit for any of the new parcels. Pima County already regulates divisions of land into six or more parcels. This means that, with certain exceptions, the new ordinance will make it impossible to get a building permit from Pima County on any un-permitted parcel created after the effective date of the ordinance.
The new ordinance was adopted by the Board of Supervisors in March, 2005, to be effective six months from the date of adoption, but has received amazingly little attention before or since adoption. It will affect only unincorporated areas of the County, not areas within municipalities. It will have a tremendous impact, however, in those areas of the County where unregulated divisions of land have been common for decades. When divisions of land in those areas first began, all of the parcels were typically larger than ten acres. The result of decades of unregulated divisions, however, is that there are now many parcels in those areas that are ten acres or smaller.
What will a landowner have to do to get a land division permit? The landowner will have to complete an application form, provide a survey by a registered land surveyor showing the proposed divisions of the land, provide a preliminary title report demonstrating that each new parcel will have legal access, provide a statement from an engineer that each new parcel will have physical access, and provide a statement identifying all physical characteristics that will affect future issuance of building permits (e.g. regulated hillsides and floodplains). In other words, the landowner will have to prove to the County that the new parcels will have the basic necessary attributes of a residential building site. This means that the landowner will have to do most of the same work that is already required for subdivisions where six or more lots are created.
One perspective on this effort by the County is that it is too little, too late, since it won’t do anything about the large areas where unregulated divisions of land have already created many parcels that are effectively at the minimum size allowed by the current zoning (and therefore won’t be regulated because they can’t be divided further unless the zoning is changed). The ordinance will, however, undoubtedly slow down unregulated divisions in areas where there is high demand for relatively low-priced residential parcels. And although it won’t do anything about the many areas where unregulated divisions of land have created significant problems such as poor physical access, nonexistent legal access, and parcels with limited or no legal building sites, it will hopefully limit the number of such problems in the future.
A PREVIEW OF COMING ATTRACTIONS– HAS THE GOVERNMENT’S ABILITY TO TAKE YOUR PROPERTY EXPANDED?
Some of you may have heard about the recent decision of the United States Supreme Court in the case of Kelo v. New London, in which five of the Justices decided that the “tak[ing] of private property for public use” provided for in the Fifth Amendment to the Constitution includes any use more economically beneficial to the government. I will, of course, be writing on this topic soon. As a preview, here is a quote from a Justice who has been called America’s greatest jurist:
It seems to be the general opinion, fortified by a strong current of judicial opinion, that since the American revolution no state government can be presumed to possess the transcendental sovereignty, to take away vested rights of property; to take the property of A. and transfer it to B. by a mere legislative act. That government can scarcely be deemed to be free, where the rights of property are left solely dependent upon a legislative body, without any restraint. The fundamental maxims of a free government seem to require, that the rights of personal liberty, and private property, should be held sacred. At least, no court of justice, in this country, would be warranted in assuming, that any state legislature possessed a power to violate and disregard them; or that such a power, so repugnant to the common principles of justice and civil liberty, lurked under any general grant of legislative authority, or ought to be implied from any general expression of the will of the people, in the usual forms of the constitutional delegation of power. The people ought not to be presumed to part with rights, so vital to their security and well-being, without very strong, and positive declarations to that effect.
Joseph Story, Justice of the United States Supreme Court, Commentaries on the Constitution of the United States. 3 vols. Boston, 1833