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JUDICIAL CHALLENGES OF LAND USE DECISIONS

J. Craig Smith

Smith Hartvigsen, PLLC

Walker Center

175 S. Main, Suite 300

SLC, UT 84111

(801)413-1600

jcsmith@smithlawonline.com

www.smithlawonline.com

 

 

A.    Nature of Appellate Land Use Proceeding

Under the Land Use Development and Management Act (LUDMA) nearly all land use decisions are appealable to the district court in which the municipality or county is located. See UCA 10-9a-801 and 17-27a-801.[1]  Those wishing to appeal a land use decision to the district court face a number of procedural, substantive and scope of review hurdles.  Suffice it to say, any of the  hurdles can “trip up” a land use appeal.  This article will both apprise the reader of the hurdles and give advice as how to best overcome them.  Even so, a successful challenge –even by an experienced land use practitioner who utilizes the best practices in appealing a land use decision is rare.

B.     Time Limit to Appeal

The first hurdle is the very short period of time in which a complaint challenging the land use decision must be filed in the district court. The appeal to the district court must be filed within 30 days of a final decision.[2]  See UCA §§ 10-9a-801(2)(a) and 17-27a-801(2)(a). Failure to file an appeal to the District Court within 30 days is a jurisdictional defect that will ease the appeal to be dismissed.[3]  One of the few exceptions is the tolling of the 30 day appeal period if a request for arbitration of a constitutional taking under UCA 13-43-204 is filed with the Private Property Ombudsman.

A final decision (which starts the 30 day appeal period) is a written decision by the appeal authority or otherwise provided by ordinance.  See UCA 10-9a-708 and 17-27a-708.  In the recent decision in Olsen v Park City Municipal Corp. 2013 UT App. (2013) the court clarified that the 30 day appeal period begins to run on legislative actions on the effective date of the legislation.

C.    Creating a Record for Appeal

                Upon an appeal to district court, “[t]he land use authority or appeal authority, as the case may be, shall transmit to the reviewing court the record of its proceedings, including its minutes, findings, orders, and, if available, a true and correct transcript of its proceedings.”  UCA §§ 10-9a-801(7)(a) & 17-27a-801(7)(a).  “If the proceeding was tape recorded, a transcript of that tape recording is a true and correct transcript....” Id. at -801(7)(b).  The importance of the record cannot be exaggerated.  Where a record exists, “the district court’s review is limited to the record...,” id. at -801(8)(a), unless evidence was offered below but improperly excluded, id.  Conversely, where there is no record, “the court may call witnesses and take evidence.”  Id. at -801(8)(b).  Thus, typically there is no opportunity to call witnesses or introduce evidence to the court.

A second hurdle is to create a sufficient factual record on which a successful appeal may rest.  Only if a record was either not made or evidence was improperly excluded, may evidence be taken by the district court.  Morra v. Grand County, 230 P3d 1022 (Utah 2010) affirmed that regardless of whether the appeal is of an administrative or legislative land use decision, the record, if one exists, must be transmitted to the district court.  As there is no rule of civil procedure covering this situation where a district court is acting as an appellate court, a Motion for Summary Judgment is the typical vehicle to have the appeal heard.  This is unlike a typical Grant of Summary Judgment, which must be based on undisputed material facts. In this instance it is based on a record which may contain disputed facts.  But like an Appellate Court, the district will not weigh the facts anew. The standards of review discussed below only require that the decision of the land use authority be supported (at most) by substantial evidence.

Thus, if you believe there is any possibility you will be appealing an adverse land use decision to district court, you should prepare and present all facts supporting your position in the administrative or legislative proceeding before the local government. [4] This is the only way you will have a complete record upon which to base your appeal.  For example, if adverse traffic impacts (or lack thereof) are important to a land use decision before the City or County land use or appeal authorities, an expert should be retained to prepare a report and to testify so that evidence will become part of the record transmitted on appeal to the district court as you will typically not have an opportunity to supplement the factual record at the district court.  The same is true for any other facts or expert testimony that supports your position.  The choice is to either prepare or submit to the administrative or legislative body prior to appeal or forego those facts as a basis for overturning the decision or appeal.

A typical problem faced when trying to make sure a complete record is created in anticipation of appeal, is the brief time period provided to make a presentation before a legislative body, Land Use Authority or Appeal Authority[5].  Unlike a trial, where days or even weeks are allocated to case presentation, a hearing before a Land Use Authority or Appeal Authority is typically limited to an hour or two at most. Sometimes, the time limitations are more drastic; fifteen minutes to one-half hour.  Usually, Land Use Authorities and Appeal Authorities –lay appointed or elected bodies meet in the evening.  A number of matters may be on the agenda for that meeting

   The solution is to have a written submission of all expected testimony with exhibits prepared prior to the meeting and submitted at the meeting.  This way a complete record can be submitted regardless of any time limitations imposed.

Also, if you are concerned about the quality of the recorded record that will be made, and later transcribed, you may want to arrange for a certified court reporter to attend and take a verbatim transcript of the meeting.

D.     Standing and Exhaustion of Administrative Remedies.

Assuming you have created a sufficient record and filed your Complaint timely in District Court, additional hurdles must be overcome.

As stated above, UCA §§ 10-9a-801(1) & (2)(a) and 17-27a-801(1) & (2)(a) require both exhaustion of one’s administrative remedies as well as demonstrate sufficent standing for judicial review:

No person may challenge in district court a county’s land use decision made under this chapter, or under a regulation made under authority of this chapter, until that person has exhausted the person’s administrative remedies as provided in Part 7, Appeal Authority and Variances, if applicable.  Any person adversely affected by a final decision made in the exercise of or in violation of the provisions of this chapter may file a petition for review of the decision with the district court within 30 days after the local land use decision is final.

 

            Any person “adversely affected” by any final decision may petition the district court to review the decision.  Prior to the enactment of LUDMA, ensuring that an appeal had been brought before the appropriate body(ies) was sometime very difficult.  Under LUDMA, however, each city and county must specify the particular appeal authority for each appeal or variance request.  This tangle should not, therefore, cause anymore heartburn, so long as, before any appeal to the district court is considered, you first make certain your appeal has been brought before the appropriate appeal authority pursuant to local ordinance.  Failure to exhaust your administrative remedies will, in the absence of unusual circumstances, be fatal to your appeal to the district court.[6] See Patterson v. American Fork City, 67 P3d 466 (Utah 2003) and Salt Lake Mission v. Salt Lake City, 184 P3d 599 (Utah 2008).

Case law suggests that to be adversely affected, and thus to have standing to bring an action, you must have an interest greater than that of the general public. Harris v. Springville City, 712 P.2d 188 (Utah 1984); Nat’l. Parks & Cons. Ass’n. v. Bd. of State Lands, 869 P.2d 909 (Utah 1993).  The petition must be filed within thirty days after the decision is rendered. UCA §§ 10-9-801(2), (6) & 17-27a-801(2), (6).

In 2010, the Utah Supreme Court held in Morra v Grand County, 230 P3d 1022 (Utah 2010) that citizens who alleged that a proposed development would increase pollution of water delivered to their property water they drink and use to cook and clean was an allegation of a direct and personal impact sufficient to create a personal stake and create standing for the citizens.  The fact that such impacts may affect a larger population does not take away standing of those who challenged the land use approval.

In Patterson v. American Fork City, 2003 UT 7, 67 P3d 466 (Utah 2003), the Court held that Patterson had not exhausted his administrative remedies and thus could not maintain his action against the City.  The Court also dismissed Patterson’s civil rights claims under 42 USC § 1983, holding that Patterson had no property right to a land use approval.  The Court specifically rejected Patterson’s claim of vested of rights under the seminal decision in Western Land Equities v. City of Logan, 617 P.2d 388 (Utah 1980).

 

 

 

1.      Precautionary Judicial Appeals

                 Occasionally it may be unclear whether an additional administrative appeal is available and should be utilized.  This is most likely when a city council or county commission or council exercises both legislative and executive (administrative) powers.  If the body is acting in a legislative capacity no further administrative appeals will be available, On the other hand, if the body is acting is an administrative capacity.    

In Suarez v Grand County, 2012 UT 72, 296 P3d 688 (2012) the Utah Supreme Court had to determine if a land use action by Grand County was an administrative, rather than legislative, action when it adopted Ordinance 454 that approved a large single development.  The Court cited its holding in Carter v. Lehi City 2012 UT 2, 269 P3d 141 (Utah 2012), as providing guidelines for determining whether action by a government is legislative or administrative.[7]  

 Two guidelines that were set forth in Carter are particularly applicable to land use matters. The first guideline is that legislative power gives rise to new law, while executive power implements a law already in existence. To clarify this distinction, the Court recognized two key hallmarks of legislative power. One hallmark is that legislative power generally involves the promulgation of laws of general applicability.   Another hallmark is that legislative power generally is based on the weighing of broad, competing policy considerations.

             Although this first guideline may be sufficient to resolve many cases, the Court recognized that some “zoning decisions are more difficult to classify, as they involve acts in the gray area between the clearly legislative and the clearly executive.  Thus, a second helpful guideline is that when land use decisions are at least arguably legislative, the courts should give understandable deference to the formal nature of the government body involved in making them and the formal nature of the zoning ordinance.  Thus if you are uncertain whether an action is administrative or legislative the only prudent course is to file two appeals. One appeal to the district court as a precautionary appeal, and a second appeal to the administrative Appeal Authority.

E.      Standards of Review: The Three Prongs of “Arbitrary, Capricious or Illegal”

 

1.      The Two Meanings of Arbitrary and Capricious

 

In Springville Citizens for a Better Community v. Springville City, 1999 UT 25,

979 P.2d 332 (Utah 1999) the Utah Supreme Court reversed the trial court which had granted summary judgment for the City on the basis that substantial compliance by the City with its own ordinances in approving the PUD was sufficient.  The Supreme Court held that a municipality must comply with mandatory provisions of its own ordinance, substantial compliance is not sufficient.  However, those challenging the City’s compliance must demonstrate how the noncompliance prejudiced them or led to a different result.  The matter was remanded to the trial court to determine the effect of noncompliance by the City with its own ordinances.

Since Springville Citizens, there have been several Court of Appeals decisions which have addressed the arbitrary and capricious standard of review of land use decisions.  In Harmon City, Inc. v. Draper City, 2000 UT App 31, 997 P.2d 321, the Court of Appeals distinguished Harmon City from Springville Citizens in concluding that there are two standards of review under the “arbitrary and capricious” banner.  For adjudicative/administrative matters such as Board of Adjustment decisions, the land use decision must be supported by substantial evidence.  On the other hand, for legislative matters such as rezoning of property, the decision need only be reasonably debatable that it is in the interest of the general welfare.

Judge Jackson wrote a lengthy dissent, arguing that the substantial evidence should apply to review of all land use decisions under the arbitrary and capricious standard.  In Bradley v. Payson City Corp., 2001 UT App 9, 17 P.3d 1160, the Utah Court of Appeals again faced the issue of whether there are two standards under arbitrary and capricious review.  On certiorari to the Utah Supreme Court, 2003 UT 16, 70 P.3d 47 (Utah 2003), Chief Justice Durham, writing for a unanimous Court, clarified that the “arbitrary and capricious” appellate review standard in fact comprises two standards:  If the action being reviewed is adjudicative or administrative, “arbitrary and capricious” calls for a substantial evidence test; i.e., whether substantial evidence support the decision.[8]  For legislative actions, on the other hand—such as the amendment of a zoning ordinance, for instance—”arbitrary and capricious” actually means “reasonably debatable.”  This highly deferential standard favoring legislative action is yet another harkening back to local government police power and the protection of the general welfare.  Such legislative act, in short, will be upheld unless it is “wholly discordant to reason and justice.”  Bradley, 2003 UT 16, ¶14 (quoting Dowse v. Salt Lake City, 255 P.2d 723, 724 (Utah 1953)).

When the Utah legislature recodified the enabling acts granting land use regulatory authority to cities, towns and counties through LUDMA, the standards of judicial review were codified.  See UCA 10-9a-801 and 17-27a-801.  Under LUDMA there is a presumption that the land use decision, ordinance or regulation is valid.  This applies to both administrative and legislative land use actions.

LUDMA’s drafters, noting the importance of this dichotomy, incorporated it into the Act itself:  “A decision, ordinance, or regulation,” declares the Act, UCA §§ 10-9a-801(3) & 17-27a-801(3), “involving the exercise of legislative discretion is valid if the decision, ordinance, or regulation is reasonably debatable and not illegal .... A final decision of a land use authority or an appeal authority [both are administrative and/or quasi-judicial bodies] is valid if the decision is supported by substantial evidence in the record and is not arbitrary, capricious, or illegal.”[9]

Thus there are three standards or review for land use decisions.  If the action is administrative by either a Land Use Authority or the Appeal Authority the courts will uphold the action if it is not arbitrary or capricious (read supported by substantial evidence). [10] If the decision is legislative in nature, i.e. an action by a solely legislative body such as a city council under the strong Mayor of Government where there is separation of powers (Salt Lake City, Ogden, Murray, etc.) the action will be upheld if it is not reasonably debatable and not illegal (read doesn’t violate constitutional law or ordinance).

 

2.       Is it Illegal?  The Promised Land for Judicial Appeals.

 

In light of the statutory standards on appeal to the courts, it is best to diligently search for illegality in the administrative land use process.  The review of a claim of illegality, i.e. not following state law or local ordinance, will be reviewed under the much more favorable standard, at least to the appellant, of correctness. See Peterson v. Riverton City, 243 P3d 1261 (Utah 2010) where a request for a zone change for a single parcel was held to be legislative and subject to the deferential reasonably debatable standard.

Also, illegality is a standard that district court judges use on an almost daily basis.  Thus they are much more comfortable in overturning a land use action that was illegal than in determining whether or not it was either supported by substantial evidence or reasonably debatable. 

3.      Obtaining Equitable Relief on Appeal

In Culbertson v. Bd. of County Commissioners, 2001 UT 108, 44 P.3d 642, Salt Lake County “closed”—rather than vacating—a segment of roadway so that it could convey an access easement to abutting owners, “which [would] allow better access to their respective properties than by having the property revert as a matter of law, half to each by vacation.”  2001 UT 108 at ¶3.  The Culbertsons brought suit after a commercial building was constructed which encroached upon the road.  The Utah Supreme Court pointed out that the applicable state statutes, while making provision for vacature, do not recognize “closure.”  The roadway therefore remained a public road, which the County had improperly narrowed by allowing the commercial encroachment.

The Court also restated the burdens of proof relative to maintaining an action to enjoin violation of a zoning ordinance.  First, the Court noted, “a showing that [a] zoning ordinance has been violated is tantamount to a showing of irreparable injury . . . to the public,” 2001 UT 108 at ¶54 (quoting Utah County v. Baxter, 635 P.2d 61, 64 (Utah 1981)); therefore, a county need not show specific irreparable injury: it need only establish the violation to obtain an injunction, id. (citing UCA § 17-27-1002(1)(b) (1999), enacted to codify the Court’s ruling in Baxter, now § 17-27a-802(1)(b)).  A private party, on the other hand, “must both allege and prove special damages peculiar to himself in order to entitle him to maintain an action to enjoin violation of a zoning ordinance.”  Id. (quoting Padjen v. Shipley, 553 P.2d 938, 939 (Utah 1976)).  In addition, the private party’s damages “must be over and above the public injury which may be caused by the violation of the zoning ordinance.”  Id. (quoting Padjen, supra).[11]

The Culbertson plaintiffs, however, satisfied their burden, and the Court remanded the case for the trial court to make findings as to damages.  The Court concluded by explaining that

where the encroachment is deliberate and constitutes a willful and intentional taking of another’s land, equity may require its restoration, without regard for the relative inconveniences or hardships which may result from its removal.” . . . [L]ocal zoning authorities “are bound by the same terms and standards of applicable zoning ordinances and are not at liberty to make land use decisions in derogation thereof.

 

Id. at ¶56 (quoting Papanikolas Bros. Enters. v. Sugarhouse Shopping Ctr. Assocs., 535 P.2d 1256, 1259 (Utah 1975), and Springville Citizens for a Better Community v. City of Springville, 1999 UT 25, ¶30, 979 P.2d 332).

 

F.     Conclusion

 

As illustrated above, the road to a successful judicial challenge of a land use decision is not an easy one.  However, if the steps listed above are taken you will at least have the opportunity to have your appeal heard on the merits and be given the best chance for success. 

 

 

4816-6223-4647, v.  2



          [1] Both municipalities and counties are governed by nearly identical versions of LUDMA, municipalities by Title 10 Chapter 9a, UCA, counties by Title 17 Chapter 27a, UCA.

 

           [2] In the pre-LUDMA decision in Brendle v. City of Draper, 937 P.2d 1044 (Utah App. 1997), the City Council lacked jurisdiction over an appeal of a planning commission decision to permit lot owners to build house when the appeal was not filed within the 14-day appeal period set forth in the relevant ordinance

 

[3] See Fox v. Park City, 200 P3d 182 (Utah 2008), for a discussion of the actual or constructive notice that starts the running of the appeal period.  See also Republic Outdoor Advertising v. UDOT (2011 UT App 198)

[4] Of course there may be legislative proceedings that there is no opportunity to create a record except in the context of a general public hearing.

[5] Id.

[6] Unusual circumstances are (1) irreparable injury, (2) likelihood of oppression or injustice, (3) exhaustion would serve no purpose or is futile, or (4) an administrative agency or officer has acted outside of the scope of its defined statutory authority.  Salt Lake City Mission at ¶ 11.

[7] In  Carter, the Court used the term “executive” rather than “administrative,” but   as explained  in Suarez  executive power encompasses prosecutorial or administrative acts aimed at applying the law to particular individuals or groups based on individual facts and circumstances.  Thus, in many instances, the term “administrative” may be synonymous with the term “executive.”

[8] Substantial evidence is further defined in the Supreme Court’s holding in Bradley as the quantum and quality of relevant evidence that is sufficient to convince a reasonable person to support a conclusion.  Quoting First Nat’l Bank of Boston v. County Board of Equalization, 799 P.2d 1163, 1165 (Utah 1990).

[9] The inclusion of “and is not arbitrary, capricious, or illegal” here is quite bizarre, as it—at least technically—undoes the clarification the provision was meant to offer.  Rather than defining “arbitrary and capricious” in the administrative context, this provision simply adds it in again as one element of validity.  This may very easily lead to the courts having to define it again.

            [10] This is another reason why you should create the best and most complete record possible.

[11] The Court further held that, because the plaintiffs were residents of Salt Lake County, they were not jurisdictionally required to exhaust administrative remedies.  Id. at ¶30–31 (quoting UCA § 17-27-1002 (1999), now § 17-27a-801(1)).