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Editor's Note: This article is the second in a series of three on Utah zoning law. The first article, entitled Utah Zoning Law: The Zoning Ordinance, appeared in the April issue, and the third, entitled Utah Zoning Law: Appeals,
will appear in the August/September issue.
I.Enforcement Generally1
The Municipal Land Use Development and Management Act and the County Land Use Development and Management Act permit local zoning ordinances in Utah to be enforced by criminal and civil
actions.
A. Criminal. A governing body may provide in its zoning ordinance for criminal prosecutions to enforce zoning regulations. Violations may be punished as a Class C misdemeanor. (The
penalty associated with a Class C misdemeanor is a term not exceeding ninety days and a fine not exceeding $1,000.)
B. Civil. Cities, counties and private parties may enforce zoning ordinances by civil actions. Specifically, the enabling acts provide that: "a [city or county] or any owner of
real estate within the [municipality/county] . . . may, in addition to other remedies provided by law, institute . . . injunctions, mandamus, abatement, or any other appropriate actions .
. . [or] proceedings to prevent, enjoin, abate, or remove the unlawful building, use, or act."
II. Civil Actions by Government
A. Injunctions. Historically, local governments have been successful in persuading the courts to issue injunctions to prevent a variety of zoning ordinance violations including, as
examples, the establishment of a funeral home in a residential district, the sale of unsubdivided land for nonagricultural purposes or a commercial use in an agricultural district. On the
other hand, these actions are not a slam dunk and when the facts or the law are against the government, the appellate courts have not been reluctant to rule in favor of land owners.2
In Utah County v. Baxter,3 the Utah Supreme Court explained the policy that allows a local government to obtain an injunction to prohibit violation of its zoning laws:
Generally, injunctive relief is available only when intervention of a court of equity is essential to protect against "irreparable injury;" hence, where the remedy at law is
adequate, an injunction will not lie. Under our zoning statute, however, injunctive relief is available as an alternative to criminal prosecution. This is based on the assumption that
zoning offenses are inherently different from other violations of law, and that enforcement officers should be empowered to seek civil redress rather than to proceed in every case by
criminal prosecution.4
In Baxter, the court quoted City of New Orleans v. Liberty Shop5 to explain the public interests that an injunction is intended to protect:
An injunction should not be issued to prevent the commission of a crime, if the only reason for preventing it is that it is a crime. But, if the wrong complained of is injurious to
property interests or civil rights, or if it is a public nuisance, either in the opinion of the court or in virtue of a statute or an ordinance making it a nuisance, the fact that it is
also a violation of a criminal statute or ordinance does not take away the authority of a court of civil jurisdiction to prevent the injury or abate the nuisance.6
B. Presumption of Validity. Administrative actions granting or denying permission to engage in a land use are presumed to be valid. In Cottonwood Heights Citizens Ass'n v. Board of
Commissioners of Salt Lake County,7 a county commission authorized construction of an apartment complex after having denied that permission to a previous owner. Sustaining the action of the county commission, the Utah Supreme Court stated:
Due to the complexity of factors involved in the matter of zoning, as in other fields where courts review the actions of administrative bodies, it should be assumed that those charged with
that responsibility (the Commission) have specialized knowledge in that field. Accordingly, they should be allowed a comparatively wide latitude of discretion; and their actions endowed
with a presumption of correctness and validity which the courts should not interfere with unless it is shown that there is no reasonable basis to justify the action taken.8
Notwithstanding the general assumption that administrative zoning actions are correct, it is nevertheless true that "because zoning ordinances are in derogation of a property owner's
common law right to unrestricted use of his or her property, provisions therein restricting property uses should be strictly construed, and provisions permitting property uses should be
liberally construed in favor of the property owner."9
III.Defenses to Actions by Government
If local government initiates a civil action to enforce its zoning ordinance, the defendant may respond by raising a number of issues which, in a loose sense, may be classified as
"defenses." In addition to constitutional issues (which are not discussed in this article) the list of such defenses includes:
Procedure. Evidence that adoption of the ordinance (text or map) did not meet procedural requirements.
Delay. A claim that the zoning authority has lost the legal right to enforce its ordinances because of delay (laches).
Unfairness. A claim that the zoning authority has engaged in an act or omission which makes it unfair to enforce the zoning ordinance (estoppel).
Nonconforming Use. A claim that the subject use is a lawful nonconforming use.
A. Procedure. Failure to follow statutory procedures may cause a zoning ordinance to be invalid. Thus, Utah cases have held that failure to hold a required public hearing or to
give a required notice will result in invalidity. Citizen's Awareness Now v. Marakis 10 includes a catalogue of such defects, including the following:
Although the ordinance annexed and zoned the . . . property, the City Council neglected to add the land to the city's official zoning map. [Plaintiff] also alleges, and the City Council
does not dispute, that the East Carbon City records contained no certificate of posting for [the] ordinance . . . 11
B. Delay. A claim of laches is a claim that government has waited too long to bring its action and in fairness that action should now be barred. Laches is an equitable defense that
must be affirmatively pleaded. A defense of laches is not favored, and in Salt Lake County v. Kartchner12 the Utah Supreme Court held that "[o]rdinarily a municipality is not precluded from enforcing its zoning regulations, when its officers have remained inactive in the face of . . . violations."13 But, in Kartchner, inaction nevertheless precluded a county from enforcing a setback requirement where its inaction in relation to several other homeowners had become discriminatory. Later, the court in Provo City v. Hansen14 held that a measure of delay was permissible when a complaint system was being used in which enforcement action is prompted by a citizen complaint, so long as the result is not discriminatory.
C. Unfairness. Estoppel is a defense raised by a defendant in an attempt to prevent a city or county from enforcing its zoning ordinance. It is an appeal to the court's sense of
fairness but it is nevertheless not favored. In Morrison v. Horne,15 the plaintiff claimed the right to construct a service station in a residential district, in part because the county assessor had incorrectly "listed and assessed it as commercial property." Refusing the plaintiff's estoppel claim, the Utah Supreme Court outlined its philosophy with respect to such claims:
As to estoppel: It would be unreasonable and unrealistic to conclude that a clerk or a ministerial officer having no authority to do so, could bind the county to a variation of a
zoning ordinance duly passed, to which everyone has notice by its passage and publication, because a ministerial employee erred in characterizing the type of property.16
In general, the following are the controlling principles related to an estoppel defense:
Exceptional circumstances. Estoppel, waiver or laches does not constitute a defense in a zoning action unless the circumstances are exceptional.
Act or omission. Estoppel requires an act or omission upon which the defendant relies in good faith in making substantial changes in position or incurring extensive expenses. If estoppel is based on an affirmative act by the zoning authority, that act must be of a clear, definite and affirmative nature. If estoppel is based on an omission by the zoning authority, that omission must be a negligent or culpable omission where the party failing to act had a duty to act. Silence or inaction does not work an estoppel.
Reliance. There must be substantial reliance by the land owner on governmental actions. In that context, the claiming party has a duty to inquire and confer with zoning
officials about lawful property uses.
Bad Faith/Fraud/Knowledge. Estoppel may not be used as a defense by one who has acted fraudulently, in bad faith, or with knowledge.
Utah County v. Young17 illustrates an unsuccessful attempt by a land owner to have estoppel applied. The trial court granted an injunction preventing the defendant from conducting a commercial auction business in an agricultural zone. On appeal, the defendant claimed that the county was estopped because the county building inspector, noting plumbing and wiring suitable for a commercial building, did not warn the defendant that a commercial use would be unlawful in his new building. Contrary to the defendant's position, an advisory jury found that the defendant knew, when he obtained his building permit, that applicable zoning regulations prohibited commercial uses. The defendant's estoppel defense failed because he acted with knowledge of the zoning restrictions and thus was not misled (no reliance) by the building inspector.
D. Nonconforming Use. A nonconforming use of land is one that: (1) legally existed before its current zoning designation, (2) has been maintained continuously since the time the
zoning regulation governing the land changed, and (3) because of subsequent zoning changes, does not conform to the zoning regulations that now govern the land. In a zoning enforcement
action a defendant may defend by claiming that his or her use may continue as a lawful nonconforming use. The burden of proof is on the claimant. But if the claimant succeeds in proving
the existence of the nonconforming use, the burden of proof is reversed and the government must then prove that the defendant exceeded the established nonconforming use.18
IV. Private Actions
A. Writ of Mandamus. Private parties may bring civil actions against government or other private parties in relation to zoning issues. Historically, many actions by private parties
against government have been requests that the court issue a writ of mandamus. In general, a writ of mandamus is a court order compelling a public official to perform a nondiscretionary
function. Understanding that cities and counties commonly enforce their zoning ordinances by refusing to issue a building permit if they are not satisfied in their demands, land owners
have used mandamus proceedings to call the government's bluff. If the land owner was correct that he or she was entitled to a permit, the writ compelled its issuance.
As examples, in Herr v. Salt Lake County19 mandamus compelled the issuance of a conditional use permit because the county commission did not act to reverse a decision of the planning commission within the time provided in the zoning ordinance. On the other hand, in Wright Development, Inc. v. City of Wellsville,20 a developer was refused mandamus compelling approval of a proposed subdivision plat because that decision was within the reasonable discretion of the city.
Reading old Utah mandamus cases may be misleading. Recent case law is clear that mandamus proceedings cannot be used as a substitute for the zoning appeal process described in the enabling
acts. The enabling acts are clear that a refusal to grant a building permit (or to perform some other administrative act) is first appealed to the zoning board of adjustment. In Hatch v.
Utah County Planning Dept.21 judicial relief was denied because, inter alia, the plaintiff bypassed the board of adjustment and applied directly to the district court. The Utah Supreme Court held that "a party must exhaust administrative remedies before seeking judicial review of the denial of a building permit."22
In the past, litigants sometimes ignored this administrative process and when they were refused a building permit they immediately asked the district court to issue a writ of mandamus.
This was done in Crist v. Mapleton City.23 Instead of appealing administratively, and then going to the courts, the plaintiff bypassed his administrative remedies and immediately asked the district court to issue a writ of mandamus. The Utah Supreme Court condemned this tactic:
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.24
B. Injunction. The remedy of injunction has been used to stop public officials from performing unlawful acts. In Harris v. Springville City,25 an injunction was
granted preventing a commercial operation in a residential district; and, in Chambers v. Smithfield City,26 an injunction was granted prohibiting the exercise of a variance granted by the city for which the applicant was not qualified.
C. Standing. By statute, a municipality, county, county attorney, or "any owner of real estate" may bring an action to enforce the acts or ordinances enacted pursuant to
those acts. If the action is for injunctive relief, the acts provide that a municipality or a county "need only establish the violation to obtain the injunction." But, in Harris v. Springville City,
Utah's high court held that, for a private party to obtain relief by enforcing the terms of a zoning ordinance, there must be a demonstration of standing, and standing is jurisdictional. Standing requires that the plaintiffs demonstrate an adverse interest, and, in the words of the Harris court, "that they [have] suffered some injury peculiar to their own property or at least more substantial than that suffered by the community at large."27
V. Vested Rights
At what point can government no longer "change its mind" in relation to uses which may be allowed? The phrase "vested right" focuses on the moment when government can
no longer change its mind and the landowner concurrently has a fixed or vested right to government approval for his or her project.
In 1974, the Utah Supreme Court decided Contracts Funding & Mortgage Exchange v. Maynes,28 in which a property owner applied to Salt Lake County for a building permit to construct a mobile home park on what was then unzoned property. The county delayed the application until it could zone the property and then denied the application. The court held that the landowner's rights were determined at the time he made his application, and because a mobile home park was permitted (or at least not prohibited) at the time of application, a permit should be issued if there were no defects in the application
The inflexibility of the Contracts Funding decision was softened in 1980 when the Utah Supreme Court decided Western Land Equities, Inc. v. City of Logan.29 In Western Land Equities, the court held that the claim of a landowner to a permit or approval based upon current zoning should be balanced against: (1) "compelling, countervailing public interest[s];" and, (2) the existence, if any, of pending proceedings to change zoning requirements. The court held:
[A]n applicant is entitled to a building permit or subdivision approval if his proposed development meets the zoning requirements in existence at the time of his application and if he
proceeds with reasonable diligence, absent a compelling, countervailing public interest. Furthermore, if a city or county has initiated proceedings to amend its zoning ordinances, a
landowner who subsequently makes application for a permit is not entitled to rely on the original zoning classification.30
The Western Land Equities decision was revisited in 1994 in Stucker v. Summit County.31 In Stucker, the plaintiff purchased a lot in a subdivision which was originally platted in 1964. The Utah Court of Appeals held that the uses to which the lot could be applied were those in effect when the application was made for a building permit in 1990, not those in effect when the subdivision plat was approved in 1964. The court stated:
Accordingly, pursuant to the Western Land decision, the Stuckers' application for a building permit in 1990 fixed the 1985 Code as the governing ordinance, not the 1977 Code. Thus, the Stuckers have no claim of a vested right under the 1977 Code because they did not apply for a building permit during the period when the 1977 Code applied.32
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 ¤ 10-9-101) or the County Land Use Development and Management Act (Utah Code ¤ 17-27-101). Case references are limited to identifying significant cases and identifying the source of quotations.
2. See Brown v. Sandy City Bd. of Adjustment, 957 P.2d 207 (Utah Ct.App. 1998).
3. 635 P.2d 61 Utah 1981).
4. Id. at 64.
5. 101 So. 798 (La. 1924).
6. Id. at 798.
7. 593 P.2d 138 (Utah 1979).
8. Id. at 140.
9. Patterson v. Utah County Bd. of Adjustment, 893 P.2d 602, 606 (Utah Ct.App. 1995).
10. 873 P.2d 1117 (Utah 1994).
11. Id. at 1120.
12. 552 P.2d 136 (Utah 1976).
13. Id. at 138.
14. 585 P.2d 461 (Utah 1978).
15. 363 P.2d 1113 (Utah 1961).
16. Id. at 1114.
17. 615 P.2d 1265 (Utah 1980).
18. See Fillmore City v. Reeve, 571 P.2d 1316, 1318 (Utah 1977).
19. 525 P.2d 728 (Utah 1974).
20. 608 P.2d 232 (Utah 1980).
21. 685 P.2d 550 (Utah 1984).
22. Id. at 551.
23. 497 P.2d 633 (Utah 1972).
24. Id. at 634.
25. 712 P.2d 188 (Utah 1984).
26. 714 P.2d 1133 (Utah 1986).
27. Id. at 191.
28. 527 P.2d 1073 (Utah 1974).
29. 617 P.2d 388 (Utah 1980).
30. Id. at 396.
31. 870 P.2d 283 (Utah App. 1994).
32. Id. at 286.
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