The local powers that be decided to restrict sale of AG land to 80 acres or more. I'm trying to explain to them that selling two patented 1/41/4's that were declared 80 acres on the patents meet that requirement. I've even sent them the Federal statute that covers the issue, some figure the local zoning overrides the federal law. I don't know if this has ever been tested but dang!!!
Well..........its 80 acres until it is surveyed and determined to be 79.34.
Well..........its 80 acres until it is surveyed and determined to be 79.34.
Not according to the statute, 79.34 surveyed acres is 80 acres.
By federal law the area of a parcel of land is what the last official U.S. government survey says it is, but that only applies to the federal government.?ÿ Local governments have no legal obligation to adopt the federal method of determining area.?ÿ
Although federal law is not on your side, common sense is. This is a fight that has been waged in jurisdictions across the country. Some local governments quickly see the light, others blindly stick by a literal interpretation of their ordinances and never consider there may be more than one way to legally define the area of a parcel. Good luck.
?ÿcoming soon to a jurisdiction near you..... BOULDER, CO!!!!!
I'm baffled by how they can legally restrict private business in this way. The word "unconstitutional" comes to mind.
By federal law the area of a parcel of land is what the last official U.S. government survey says it is, but that only applies to the federal government.?ÿ Local governments have no legal obligation to adopt the federal method of determining area.?ÿ
Although federal law is not on your side, common sense is. This is a fight that has been waged in jurisdictions across the country. Some local governments quickly see the light, others blindly stick by a literal interpretation of their ordinances and never consider there may be more than one way to legally define the area of a parcel. Good luck.
I have to say, if the local powers that be want to regulate based on the current, surveyed area, I'm kinda cool with that, philosophically.
Land use regulations should be enacted and enforced at the level of the lowest possible political subdivision.
https://en.wikipedia.org/wiki/Subsidiarity
The federal?ÿ1805 statute?ÿdirects the subdivision of Federal lands, however the fixing of areas was based on case law long established by that time and this was included into the 1805 statute. For any federal lands the areas can change, it's the patented lands that can't be changed. What I've never seen is if?ÿ zoning can override these court decisions. I have an AG opinion where it was "ruled" that zoning overrides other state statutes such as exceptions to the subdivision laws, local attorneys disagree with that opinion, but it's never been challenged since it was written 11 years ago.
The federal?ÿ1805 statute?ÿdirects the subdivision of Federal lands, however the fixing of areas was based on case law long established by that time and this was included into the 1805 statute. For any federal lands the areas can change, it's the patented lands that can't be changed. What I've never seen is if?ÿ zoning can override these court decisions. I have an AG opinion where it was "ruled" that zoning overrides other state statutes such as exceptions to the subdivision laws, local attorneys disagree with that opinion, but it's never been challenged since it was written 11 years ago.
Those court decisions and the statute of 1805 do not apply to zoning. Zoning is not a federal responsibility.?ÿ
Just like states can choose to legalize marijuana though it remains prohibited federally, local governments can choose to follow the federal example in calculating area or not. Federal and local law are two separate things.?ÿ
I personally think this issue exists because land surveyors don't take their place at the table when these rules and regulations are being created.?ÿ Then we complain about the rule when we have to deal with them even if the rule doesn't?ÿ represent common sense.?ÿ For instance when they were making the 80 ac ag rule you are writing about, if a county surveyor or private surveyor would of taken their place at the table the rule might of been written as a quarter of a quarter gross (including dedicated roads, deeded rail roads.....).?ÿ Our profession is charged with measuring and quantifying land so we should take an active role in creating planning laws that pertain.?ÿ My 2 cents, Jp
I have to say, if the local powers that be want to regulate based on the current, surveyed area, I'm kinda cool with that, philosophically.
But don't you think if they are taking that view, they should set the limit at 75 acres or some such number that the vast majority of 1/2 1/4 sections would meet, instead of 80.0 which perhaps half of them would not?
The federal?ÿ1805 statute?ÿdirects the subdivision of Federal lands, however the fixing of areas was based on case law long established by that time and this was included into the 1805 statute. For any federal lands the areas can change, it's the patented lands that can't be changed. What I've never seen is if?ÿ zoning can override these court decisions. I have an AG opinion where it was "ruled" that zoning overrides other state statutes such as exceptions to the subdivision laws, local attorneys disagree with that opinion, but it's never been challenged since it was written 11 years ago.
Those court decisions and the statute of 1805 do not apply to zoning. Zoning is not a federal responsibility.?ÿ
Just like states can choose to legalize marijuana though it remains prohibited federally, local governments can choose to follow the federal example in calculating area or not. Federal and local law are two separate things.?ÿ
The federal law is based on long held principals that are not federal law. And this law does not apply to federal lands.
I personally think this issue exists because land surveyors don't take their place at the table when these rules and regulations are being created.?ÿ Then we complain about the rule when we have to deal with them even if the rule doesn't?ÿ represent common sense.?ÿ For instance when they were making the 80 ac ag rule you are writing about, if a county surveyor or private surveyor would of taken their place at the table the rule might of been written as a quarter of a quarter gross (including dedicated roads, deeded rail roads.....).?ÿ Our profession is charged with measuring and quantifying land so we should take an active role in creating planning laws that pertain.?ÿ My 2 cents, Jp
This.?ÿ?ÿ
Hijack:?ÿ I don't know why surveyors in some locations?ÿappear to shy away from zoning related issues.?ÿ I always hear the reasoning that zoning is law/regulation and therefore surveyors can't delve into it because they would be practicing law, but?ÿplanners and architects are wrist deep in zoning all the time; the only difference between them and (some of) us is that they take the time to study the matter to gain expertise.?ÿ If interpreting zoning regulation is?ÿpracticing law, then interpreting the tax code is practicing?ÿ law and all the accountants should be up on charges before the?ÿbar.?ÿ ?ÿ
I have to say, if the local powers that be want to regulate based on the current, surveyed area, I'm kinda cool with that, philosophically.
But don't you think if they are taking that view, they should set the limit at 75 acres or some such number that the vast majority of 1/2 1/4 sections would meet, instead of 80.0 which perhaps half of them would not?
Yes when they decided to go with 80 acres I argued against it. The previous restriction was 35 and they should have used 70 acres, the intent of the older requirement was clearly to allow for smaller Lots that appear in the system. The point of all this is once established acreages remain fixed by law, so selling two patented 1/41/4 together meets the requirement for 80 acres, no survey needed.
The federal law is based on long held principals that are not federal law
The argument that the federal law doesn't apply is based on the?ÿTenth Amendment.?ÿ
At the risk of delving into dark banned areas: from an east coast perspective it?ÿis ironic to see an argument to override local authority by quoting federal authority from the rural west.?ÿ Okay, the local authority will be trumped, but the federal interpretation of what constitutes 80 acres will be enforced by armed BLM agents in black helicopters. ? ?ÿ
The federal?ÿ1805 statute?ÿdirects the subdivision of Federal lands, however the fixing of areas was based on case law long established by that time and this was included into the 1805 statute. For any federal lands the areas can change, it's the patented lands that can't be changed. What I've never seen is if?ÿ zoning can override these court decisions. I have an AG opinion where it was "ruled" that zoning overrides other state statutes such as exceptions to the subdivision laws, local attorneys disagree with that opinion, but it's never been challenged since it was written 11 years ago.
Those court decisions and the statute of 1805 do not apply to zoning. Zoning is not a federal responsibility.?ÿ
Just like states can choose to legalize marijuana though it remains prohibited federally, local governments can choose to follow the federal example in calculating area or not. Federal and local law are two separate things.?ÿ
?ÿ
But don't you think if they are taking that view, they should set the limit at 75 acres or some such number that the vast majority of 1/2 1/4 sections would meet, instead of 80.0 which perhaps half of them would not?
Probably, but citing federal supremacy?ÿas a route to fix the?ÿinterpretation of poorly crafted local regulation is a can of worms no one in their right mind should consider opening.?ÿ
The federal law is based on long held principals that are not federal law
The argument that the federal law doesn't apply is based on the?ÿTenth Amendment.?ÿ
At the risk of delving into dark banned areas: from an east coast perspective it?ÿis ironic to see an argument to override local authority by quoting federal authority from the rural west.?ÿ Okay, the local authority will be trumped, but the federal interpretation of what constitutes 80 acres will be enforced by armed BLM agents in black helicopters. ? ?ÿ
77 percent of this state is under federal ownership, the state regulations state that the BLM manual will be followed, I've seen no state law or regulation that overrides the 1805 federal statute, nor have I seen a court case that overrides long established common law concerning establishment of acreages, this isn't only a federal issue. The courts have long held that once established acreages become fixed, otherwise there would be endless mischief with each resurvey. A city lot accepted and signed off by the city government at the 6000 sq ft minimum for area can't then be declared to be violating subdivision regulations because a later survey finds it's 5990sq ft. For the purposes of law and zoning it's the accepted 6000sq ft, no more or less.
The federal law is based on long held principals that are not federal law
The argument that the federal law doesn't apply is based on the?ÿTenth Amendment.?ÿ
At the risk of delving into dark banned areas: from an east coast perspective it?ÿis ironic to see an argument to override local authority by quoting federal authority from the rural west.?ÿ Okay, the local authority will be trumped, but the federal interpretation of what constitutes 80 acres will be enforced by armed BLM agents in black helicopters. ? ?ÿ
77 percent of this state is under federal ownership, the state regulations state that the BLM manual will be followed, I've seen no state law or regulation that overrides the 1805 federal statute, nor have I seen a court case that overrides long established common law concerning establishment of acreages, this isn't only a federal issue. The courts have long held that once established acreages become fixed, otherwise there would be endless mischief with each resurvey. A city lot accepted and signed off by the city government at the 6000 sq ft minimum for area can't then be declared to be violating subdivision regulations because a later survey finds it's 5990sq ft. For the purposes of law and zoning it's the accepted 6000sq ft, no more or less.
The fact that 77% of the state is federal is not relevant. Local zoning laws don't apply to the federal land and federal land management laws don't apply to private property within a state.?ÿ You have seen no state law or regulation overriding the 1805 statute because it only apples to the federal government.?ÿ There would be no reason or constitutional basis for a state to try to override it. The constitutional authority for this statute comes from Article IV, ?? 3 "The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States."?ÿ
You may be right about the courts holding established acreage, but to be relevant to this discussion they would have to be your state courts. You may have a good legal argument somewhere, but it is not going to come from a federal statute. Unless you can find a state statute or court case I would suggest you use a common sense argument, not a legal one. Maybe if the decision makers realize how many "80 acre" parcels will be excluded by .001 acres they will reconsider.?ÿ
This is a battle I have fought and won, but not easily. The 1805 statute can be used to show that others have considered this problem before, and sided with rationality, but telling the decision makers that they are bound by the statute will probably make them less likely to consider your other arguments.?ÿ
So the state should refuse to recognize federal patents, right?
The acreage given in the patent is correct. Of course sometimes the given acreages are less than 40.
The argument above that restricting Lot size is unconstitutional was turned away by the US Supreme Court decades ago. I think the case was in a suburban City outside Detroit.