Agenda - Planning Commission - 02/03/1998

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Z.B. December 24, 1997 -~- Page 3 lots. The county board of commissioners approved his plan. Bilbao later recorded a plat reflecting the county's subdivision into six lots. In April 1985, he filed with the county recorder a record of suiwey of the subdivision. The survey, however, showed the property divided into nine, not six, lots. In the spring of 1994, Bilbao sold some of the nine lots. In September 1994, the state charged Bilbao with six misdemeanor counts of subdividing land in violation of the county zoning Ordinance. ' Under the ordinance, land could not be subdivided without the dounty board of commissioner's prior approval. The ordinance defined a "subdivision" as: "The division of an original lot, tract, or parcel of land into more than two parts less than forty .(40) acres in size for the purpose of: transfer of ownership for development, the dedicati6n of a public street, or the addition to or creation of a cemetery." The term "development" ' included, but Was not limited to, im- pr0vements.for residential, indtistriaI, or recreational use. " ' Bilbao asked the judge to dismiss the charges against him, arguing"they were .barred by the statue of limitations. He claimed'the allegedly illegal~ subdivision occurred in 1985, when h'e filed the land survey showing nine lots instead of the six lots the board approved. The judge agreed, concluding Bilbao's prosecution was barred by the statute of limitations. The judge relied on an earlier court 'decision holding that the act of recording a subdivision plat legally established each lot described within it. The judge concluded this meant Bilbao's allegedly illegal subdivision occurred in 1985, when he filed the land survey. The judge reasoned that because the county had the right to l:equire Bilbao to comply with the ordinance before he filed his plat, and the substance of the .charges against Bilbao was his failure to meet the county's requirements before doing so, it was his second filing -- the land kurvey N that was the allegedly illegal act. The judge dismissed the charges against Bilbao, and the state appealed. DECISION: Reversed, charges reinstated. Bilbao's prosecution was not barred by the statute of Iimit. ations, so he had to stand'trial for the zoning violations. The filing of a land survey was not enough to create a subdivision as defined by the ordinance, and thus, could not trigger the running of the statute of limitations. For a subdivision to have occurred under the ordinance, there must have been a division of land for the purpose of transfer of ownership for development. Bilbao's land survey did not divide land, nor did the filing of the survey indicate with what intent he surveyed the property. The ordinance clearly required two ele- ments for a subdivision to occur: the act of subdividing the property, and an intent that the division be for the purpose of transferring ownership for development. The judge concluded Bilbao's filing of the land survey was the alIegedly illegal subdivision because he mistakenly viewed the record of survey that Bilbao filed in 1985 as an actual plat. The document Bilbao filed at that time was not a plat, but a record of survey -- and they were not the same. A record of survey was not meant to serve as evidence or notice a landowner sought to subdivide