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This article is the third in a series of three on Utah zoning law. The first article is entitled Utah Zoning Law: The Zoning Ordinance, and appeared in the April 2001 issue. The second
is entitled Utah Zoning Law: Enforcement, and appeared in the June/July 2001 issue.
I. Appeals1
This article deals with the "appeals" that may be pursued in Utah when the rights of parties may have been violated in the process of regulating
land uses. In Utah zoning law, there are three proceedings that may be loosely referred to as an "appeal":
Administrative Appeals. First, there is an administrative appeal; that is, an appeal within the zoning system - not an appeal to the courts. For example, a zoning administrator
misinterprets the zoning ordinance and refuses to issue a building permit. The remedy of the applicant is to appeal to the zoning board of adjustment which has power to overrule the
mistake and order that the building permit be issued.
Judicial Review of an Administrative Decision.
Second, there is judicial review of an administrative decision. In the example above, if the board of adjustment errs and refuses to order the permit issued, that decision may be appealed to the district court which has power to review the matter and alter the administrative decision. (The decision of the district court may, of course, be appealed to the Court of Appeals and the Supreme Court as other judicial decisions are appealed.)
Judicial Challenges to Legislative Decisions.
Third, there is direct resort to the courts in opposition to legislative decisions. For example, the governing body exercises its legislative (not administrative) authority to rezone property from commercial to residential. The property owner objects and files suit in the courts. (The property owner is not required to appeal to the board of adjustment because this is not an administrative act.)
II. Administrative Appeals
A Board of Adjustment.
A board of adjustment is required as a condition to the exercise of zoning powers. (Like a planning commission, a board of adjustment is composed of local residents who normally serve without compensation.) According to the enabling acts, the objective of a board of adjustment is to provide an element of flexibility in zoning administration so that there will be "just and fair treatment . . . and to ensure that substantial justice is done." In an early case, the Utah Supreme Court said that the function of a board of adjustment is to make "adjustments under the zoning ordinances in order that they will not be [as inflexible] as the law of the Medes and the Persians."2 Nevertheless, in a different case, the court cautioned that a board of adjustment is an administrative body and its actions are limited by the terms of the zoning ordinance enacted by the legislative body.3
Open Meetings. The enabling acts provide that the meetings of a board of adjustment are subject to the Open and Public Meetings law.4 Arguably, however, the decision-making phase of the business of a board of adjustment is not required to be in an open meeting. In relation to public boards like the Utah Public Service Commission and the Utah Board of Pardons the Utah Supreme Court has observed that some of the business of such boards is "information gathering" in nature and some is "judicial" in nature. Proceedings which are judicial in nature are exempt from the provisions of the Open and Public Meetings statute. In Andrews v. Utah Board of Pardons,5 when confronted with a claim that a meeting of the Utah Board of Pardons should have been open to the public, the Utah Supreme Court stated: "[T]he Board proceedings to date consisted not of information gathering, but of deliberations . . . If this is the case, these proceedings would be of a judicial nature and exempt from the provisions of the [Open and Public Meetings] statute."6
Historically, some boards of adjustment have held a "pre-meeting" in which the board's staff and attorney reviewed agenda and issues with board members, ostensibly so that
upcoming meetings would run more smoothly. In reality these meetings often slipped into a discussion of the merits of upcoming issues and for that reason they have been condemned by the
Utah Court of Appeals.7
Board of Adjustment Jurisdiction. A board of adjustment is commonly asked to: (1) review claims of administrative error; (2) grant variances; (3) review the approval of conditional
use permits; or, (4) determine the existence of nonconforming uses. Following is a brief discussion of each of these:
Administrative Errors. With respect to claims that an administrative error has been made, the zoning enabling acts specifically provide that a board of adjustment "shall hear and decide" controversies which are "appeals from zoning decisions applying the zoning ordinance." Zoning decisions which may be appealed include orders, requirements, decisions, or determinations made by zoning officials in administering or interpreting the zoning ordinance.
A hypothetical example is the error of a zoning administrator in refusing to issue a building permit because of a misreading of the zoning ordinance. The standard by which a board of
adjustment decides if the zoning administrator made an error is a standard of "correctness," not whether there was some "rational basis" for the decision. There is a
difference between these standards because the administrator's decision may have a rational basis and yet not be legally correct. In Brown v. Sandy City Board of Adjustment,8 the Utah Court of Appeals stated: "it is clear to this court that a person of ordinary intelligence [the members of a board of adjustment] can easily understand the difference between the questions, "Was the staff's interpretation correct?' and "Was the staff's interpretation rational?'"9
Zoning decisions may be appealed by persons affected thereby and by officers and subdivisions of a city or county. The time within which to appeal a zoning decision to a board of
adjustment is "a reasonable time," which is fixed in the zoning ordinance. Some zoning ordinances have a time limit as short as ten days (from the date of the contested
decision) within which to file notice of an administrative appeal.
Variances.
The enabling acts provide that a "board of adjustment shall hear and decide . . . variances from the terms of the zoning ordinance." A request for a variance is a request that the zoning ordinance should not be strictly applied because of some peculiarity in the characteristics of the subject property. There is a perception in the zoning community that some boards of adjustment are too liberal in granting variances; consequently, the state legislature has imposed strict limits on the ability of a board of adjustment to grant a variance. Those limitations are that a variance may be granted only if:
Unreasonable Hardship. Literal enforcement of the zoning ordinance would cause an unreasonable hardship for the applicant that is not necessary to carry out the general purpose of the zoning ordinance.
Special Circumstances. There are special circumstances attached to the property that do not generally apply to other properties in the same district.
Absence of a Substantial Property Right. Granting the variance is essential to the enjoyment of a substantial property right possessed by other property in the same district.
Consistent with General Plan. The variance will not substantially affect the general plan and will not be contrary to the public interest.
Substantial Justice. The spirit of the zoning ordinance is observed and substantial justice done.
A Variance Example.
A variance may be illustrated by a simple example in which a small stream traverses a parcel of property. The property owner is entitled to a building permit, but constructing a house in the middle of the lot (as required by the zoning ordinance) is impractical because of the stream location. Because of this peculiarity in the physical characteristics of his lot, the owner asks a board of adjustment for a variance allowing him to construct his house closer to one of the boundary lines than the zoning ordinance otherwise requires. The board reasons that: (1) refusing a variance will cause an unreasonable hardship - the applicant could not build a house; (2) the problem is caused by a special circumstance - a stream runs across the applicant's building lot; (3) without a variance the applicant will be denied a substantial property right - the right to build a residence on a residential building lot; (4) the variance will not violate the general plan - building a residence in a residential zone is consistent with the general plan; and (5) substantial justice will be done - it is fair that a person be allowed to build a residence in a residential zone. Because the statutory standards have been met, a variance is granted.
Boards of adjustment, however, sometimes find it hard to resist the temptation to grant a variance without meeting the statutory standards described above. A recent example is Wells v.
Board of Adjustment of Salt Lake City Corp.10 in which the board was asked for a variance from ordinance requirements regulating the location of restaurant "dumpsters." The board granted a variance relocating the dumpsters (contrary to ordinance requirements) because they believed "the neighborhood would be better served" by so doing. On appeal, the Court of Appeals stated: "Because the Board granted the variance without making the required statutory findings, we conclude the Board overstepped its legislatively delegated authority and, as such, its decision is illegal."11
Conditional Use Permits - Jurisdiction.
A board of adjustment has jurisdiction to review decisions relating to conditional use permits. The governing body may, however, designate another body to consider such appeals. A conditional use permit is a building permit to which ad hoc requirements are attached as circumstances require. For example, a planning commission might authorize a conditional use permit for a convenience store, but cut off the right to sell gasoline after 8:00 p.m. because the peace and quiet of "neighbors" might be upset. The permit applicant, however, thinks an error has been made because the proposed store is surrounded by offices and not residences, and thus there are not any "neighbors" in the normal sense.
In Utah law, the question is who (the board of adjustment or some other body designated by the governing body) should hear the applicant's appeal? In 1989, this was resolved by an enabling
act amendment. On this point the enabling act now reads: "The board of adjustments has jurisdiction to decide appeals of the approval or denial of conditional use permits unless the
legislative body has enacted an ordinance designating the legislative body or another body as the appellate body for those appeals."
The effect of the 1989 amendment is to allow a city council to divest its board of adjustment of jurisdiction over conditional use permit appeals, if the council wishes, and to assume that
jurisdiction itself.12 If the legislative body is thus substituted by the terms of the zoning ordinance as the appellate body for purposes of conditional use permit appeals, it would seem that an appeal to that body (acting as a substitute board of adjustment) exhausts administrative remedies and enables an appeal to the district court.
Nonconforming Uses. The acts provide that "[t]he board of adjustment may make determinations regarding the existence, expansion, or modification of nonconforming uses if that
authority is delegated to them by the legislative body." A nonconforming use is a "grandfathered" use. That is, it is a use which was lawful when it was created, but is now
"nonconforming" in the sense that it is no longer allowed. Zoning ordinances normally provide that such uses may be continued but not expanded.
The burden of proving the right to a nonconforming use is on the person claiming it. In Fillmore City v. Reeve,13 the evidence was that the landowners had met their burden of proof in relation to continuously keeping livestock (pigs, cattle, and horses) in what had become a residential district. Under these facts, the court held: "when the non-conforming use is established, the burden of proof is reversed. It is then on the city to prove that the defendant violated the zoning ordinance by exceeding his established non-conforming use."14
III. Judicial Review of an Administrative Decision
"Any Person" / "Any Decision." Suppose that an applicant is displeased with an administrative decision of a
board of adjustment (or sometimes a city council). This raises the question of an appeal to the district court. The enabling acts provide that "[a]ny person adversely affected by any decision made in the exercise of the provisions of this chapter [the city and county enabling acts] may file a petition for review of the decision with the district court within 30 days after the local decision is rendered." The enabling acts provide that "[d]ecisions of the board of adjustment become effective at the meeting in which the decision is made, unless a different time is designated in the board's rules or at the time the decision is made."
Although "any decision" may be appealed to the courts, the city and county acts explicitly provide that decisions cannot be challenged in the courts "until [the appellant]
has exhausted his administrative remedies." In Hatch v. Utah County Planning Dept.15 the Supreme Court stated: "a party must exhaust administrative remedies before seeking judicial review."16 This plainly means that the board of adjustment (or some other body designated by the governing body) cannot be bypassed in the appeals process.
Scope of Review.
On review, the district court may "determine only whether or not the decision is arbitrary, capricious, or illegal." The acts provide that "[t]he courts shall . . . presume that land use decisions and regulations are valid." An administrative decision in which a city fails to follow procedures described in the zoning ordinance may be reversed. However, finding a procedural error in making an administrative decision "does not automatically entitle plaintiffs to the relief they request. Rather "plaintiffs must establish that they were prejudiced by the City's noncompliance with its ordinances or, in other words, how, if at all, the City's decision would have been different and what relief if any, they are entitled to as a result."17
Record on Appeal. As noted above, the role of a district court in a zoning appeal is not to conduct a trial de novo, but rather to determine whether there is "evidence
in the record" to support the administrative decision below. Thus, the existence of an adequate administrative record is critical. However, the only statutory requirements with
respect to the administrative record are that a board of adjustment is required to keep minutes showing the vote of its members and "records of its examinations and other official
actions." In addition, the board "may, but is not required to, have its proceedings contemporaneously transcribed by a court reporter or a tape recorder [sic]." As a
practice note, a good record is essential to a good appeal. A careful practitioner will bring a tape recorder and record board of adjustment proceedings. This recording may be used to
prepare a transcript in the event the board staff will not or cannot provide one.
On appeal to the courts, there is no guarantee that the required administrative record will be adequate, and thus the decision in Xanthos v. Board of Adjustment of Salt Lake City18 focused, inter alia, on the course to be followed if it is not. The Xanthos
court was clear that the role of the district court was to review the record produced below. However, the court referred to an administrative hearing it had reviewed in Denver &
Rio Grande Western R.R. v. Central Weber Sewer Improvement District,19 wherein it held that where the administrative record is inadequate, the reviewing court must
be allowed to "get at the facts."20 The Xanthos
court noted that in the instant case there was no record of the proceedings before the board of adjustment and consequently permitted the following alternative:
Since there is no record of the proceedings, due process would be denied if the district court could not get at the facts. Therefore, the court must be allowed to take its own evidence and
need not necessarily be limited to the evidence presented before the Board of Adjustment. This does not mean that the hearing in the district court should be a retrial on the merits, or
that the district court can substitute its judgment for that of the Board.21
Extraordinary Relief (Mandamus). Historically, a petition for a writ of mandamus was sometimes used to challenge administrative zoning decisions. It is now clear, however, that a petition for review,
and not a writ of mandamus, is the proper way to take an administrative decision to the courts. In Crist v. Mapleton City22 the city refused to authorize a building permit demanded by the plaintiff, and he responded by filing a petition for a writ of mandamus in the district court. On appeal, the Utah Supreme Court held that the plaintiff could not use a writ of mandamus: "By ignoring a plain, speedy, and adequate remedy at law, the plaintiffs placed themselves out of reach of the extraordinary writ of mandamus. A writ of mandamus is not a substitute for and cannot be used in civil proceedings to serve the purpose of appeal, certiorari, or writ of error."23
There are, however, instances where the use of mandamus is proper. In Davis County v. Clearfield City,24 the procedures in the zoning ordinance were flawed and created a "dead-end" from which the applicant could not appeal in the manner contemplated by the enabling act. On those facts, the Utah Court of Appeals allowed a petition for "extraordinary relief" pursuant to Rule 65B of the Utah Rules of Civil Procedure:
Clearfield City cannot be heard to complain about the inappropriateness of the county's choice of procedure for obtaining judicial review [Rule 65B] in light of its own, flawed conditional
use permit procedures. Simply put, Clearfield City imposed on the county a procedure inconsistent with that envisioned in the enabling act. Having done so, it cannot insist on the method
of district court review envisioned in that act.25
IV.Judicial Challenges to Legislative Decisions
The discussion above deals with the appeal of administrative decisions, first to the board of adjustment and then to the courts. The following discussion deals with challenges to legislative decisions made by the governing body.
The decision to amend a zoning ordinance (text or map) is a legislative decision which is made by the local legislative body. Because such a decision is legislative and not administrative,
it is not necessary to exhaust administrative remedies. A party who is aggrieved by a legislative decision may take his or her claim directly to the courts. Thus, as examples, in Gardner
v. Perry City26 the plaintiff filed suit challenging a legislative decision to rezone residential property from one-acre lots to quarter-acre lots. And, in Harmon City, Inc. v. Draper City,27 the plaintiff objected to a legislative refusal to rezone property from residential to commercial. In neither of these cases was the plaintiff required to appeal to the board of adjustment because these were legislative decisions and not administrative decisions.
In the review of a legislative decision, the courts give that decision considerable deference. Thus, in Harmon City, the Utah Court of Appeals stated: "When reviewing a city
council's decision not to change the zoning classification of property, we presume that the decision is valid and "determine only whether or not the decision is arbitrary,
capricious, or illegal.'"28 In the context of rezoning, it is not sufficient that a plaintiff demonstrate economic loss caused by the rezoning. As long as he or she retains some reasonable use of the subject property there is not a constitutional "taking."29 In Bradley v. Payson City Corp.30 the Utah Court of Appeals held that legislative zoning decisions are reviewed on a "reasonably debatable" standard. In light of these standards it is not surprising that the Utah courts only rarely uphold a challenge to legislative action.
Footnotes
1.
Because of space constraints, only cursory endnotes are used. Unless otherwise indicated, all statutes quoted or referred to are found in The Municipal Land Use Development and Management Act (Utah Code Ann. ¤ 10-9-101) or the County Land Use Development and Management Act (Utah Code Ann. ¤ 17-27-101). Case references are limited to identifying significant cases and identifying the source of quotations.
2. Provo City v. Claudin, 63 P.2d 570, 574 (Utah 1936).
3. Walton v. Tracy Loan and Trust Co., 92 P.2d 724, 728 (Utah 1939).
4. Utah Code Ann. ¤ 52-4-3.
5. 836 P.2d 790 (Utah 1992).
6. Id. at 792-93 (emphasis added).
7. Davis County v. Clearfield City, 756 P.2d 704 (Utah Ct. App. 1988).
8. 957 P.2d 207 (Utah App. 1998).
9. Id. at 209.
10. 936 P.2d 1102 (Utah App. 1997).
1. Id. at 1104 (emphasis added).
12. See Ralph L. Wadsworth Const. v. West Jordan, 999 P.2d 1240 (Utah App. 2000).
13. 571 P.2d 1316 (Utah 1977).
14. Id. at 1318.
15. 685 P.2d 550 (Utah 1984).
16. Id. at 551.
17. Springville Citizens v. City of Springville, 979 P.2d 332 (Utah 1999).
18. 685 P.2d 1032, 1035 (Utah 1984).
19. 287 P.2d 884 (Utah 1955).
20. Id.
21. Xanthos at 1034.
22. 497 P.2d 633 (Utah 1972).
23. Id. at 634.
24. 756 P.2d 704 (Utah Ct. App. 1988).
25. Id. at 708.
26. 994 P.2d 811 (Utah App. 2000).
27. 997 P.2d 321 (Utah App. 2000).
28. Id. at 323.
29. See Smith Inv. Co. v. Sandy City, 958 P.2d 245 (Utah App. 1998).
30. Bradley v. Payson City, 413 Utah Adv. Rep. 13 (Utah App. 2001).
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