South Weber v. Cobblestone , 2022 UT App 63 ( 2022 )

2022 UT App 63THE UTAH COURT OF APPEALS
SOUTH WEBER CITY,
Appellee,
v.
COBBLESTONE RESORT LLC, WONAE MIER,
AND DUSTIN SHIOZAKI,
Appellants.
Opinion
No. 20210028-CA
Filed May 12, 2022
Second District Court, Farmington Department
The Honorable Robert J. Dale
No. 200700543
Matthew J. Morrison, Attorney for Appellants
Robert C. Keller, Danica N. Cepernich, and
Nathanael J. Mitchell, Attorneys for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES DAVID N. MORTENSEN and JILL M. POHLMAN
concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 Cobblestone Resort LLC, Wonae Mier, and Dustin Shiozaki
(collectively, Cobblestone) appeal the district court’s order
granting South Weber City’s (South Weber) motion to enjoin the
ongoing use of a property owned by Cobblestone for short-term
or vacation rentals without a valid business license. We affirm.
BACKGROUND
¶2 In August 2018, Cobblestone purchased a residence with a
pool (the Property) located in South Weber. At the time of the
South Weber v. Cobblestone
purchase, Cobblestone’s intent was to “expand the [P]roperty”
and operate “a successful Airbnb business.” Shortly after
purchasing the Property, Cobblestone began renting it as a short-
term rental (STR).
¶3 The Property is and has always been located within South
Weber’s agricultural zone. Since 2016, the permitted uses for an
agricultural zone have been limited to the following:
• accessory uses and buildings;
• agriculture;
• animal keeping on lots at least one-half acre
in area;
• dwellings, one-family;
• farm industry on parcels or lots five acres or
larger;
• fruit and vegetable stands of the sale of
produce grown on the premises or of
agricultural products used on the premises;
• home occupations, except preschools and
daycare;
• mobile businesses; and pets, the keeping of
household pets.
See South Weber, Utah, Code § 10-5E-2. STRs were not included
among the conditional uses for an agricultural zone. See id. § 10-
5E-3.
¶4 In May 2019, South Weber adopted an ordinance (the
Ordinance) regulating “short-term or vacation rentals.” Among
other things, the Ordinance required a conditional use permit “for
each unit used as a short-term or vacation rental, regardless of the
zone, type, or primary use of the property.” Id. § 10-18-3(A). The
Ordinance further required that “[a]s a condition of receiving a
conditional use permit and prior to conducting business, the
applicant shall . . . [a]pply for and pay the annual City business
license fee, with the license to be issued after the conditional use
20210028-CA 2 2022 UT App 63South Weber v. Cobblestone
permit is granted.” Id. § 10-18-3(D)(2). At the same time that the
Ordinance was enacted, South Weber also added “short-term or
vacation rental” to the list of businesses for which “it shall be
unlawful . . . to operate . . . within [South Weber] without first
making an application to [South Weber] and obtaining a business
license.” Id. § 3-2-1(A)(7).
¶5 Following enactment of the Ordinance, Cobblestone
applied for a conditional use permit so that it could continue
using the Property as an STR. It also submitted an application for
a business license.
¶6 In August 2019, South Weber City’s Planning Commission
held a meeting during which it approved Cobblestone’s
conditional use permit application subject to a number of
conditions. After the conditional use permit was approved, the
South Weber City Manager “reminded those in attendance [at the
meeting] that the conditional use permit is not the business
license” and that “there are still a few steps that need to be
reviewed for the business license for [the Property].”
¶7 Approximately one month later, Cobblestone was issued a
series of three “strikes” for violations of the conditional use
permit. Thereafter, the Planning Commission met to discuss
concerns over the conditional use permit. Based on the evidence
that had been presented, the Planning Commission voted to
immediately revoke Cobblestone’s conditional use permit.
¶8 In November 2019, the South Weber City Council held a
meeting during which it discussed revoking Cobblestone’s
conditional use permit. The City Council acknowledged there was
some “misunderstanding” regarding whether the power to
revoke a conditional use permit belonged to the Planning
Commission or to the City Council, but ultimately it agreed with
the Planning Commission’s decision and voted to immediately
revoke Cobblestone’s conditional use permit.
20210028-CA 3 2022 UT App 63South Weber v. Cobblestone
¶9 Cobblestone appealed the City Council’s decision
administratively. In its appeal, Cobblestone argued, among other
things, that its use of the Property as an STR was “a continuously
maintained nonconforming use.” It simultaneously filed an
affidavit of conforming use with South Weber. In April 2020, the
City Council’s decision was reversed on procedural grounds and
the matter was remanded to the City Council for further action. 1
¶10 In June 2020, police were dispatched to the Property after
a neighbor witnessed an altercation involving people renting the
Property, during which a firearm was discharged multiple times. 2
One month later, South Weber filed a complaint in district court
seeking to enforce its ordinances against Cobblestone and for
declaratory judgment that Cobblestone’s use of the Property as an
STR is not a legal nonconforming use and that it is therefore
subject to the Ordinance. South Weber also filed a motion for a
temporary restraining order and preliminary injunction
preventing Cobblestone from operating any business at the
Property. In its motion, South Weber argued it was entitled to
injunctive relief pursuant to Utah Code section 10-9a-802. Under
that section, a municipality may seek enforcement of its
ordinances by instituting, among other things, injunctions
enjoining the unlawful use, and “[a] municipality need only
establish the violation to obtain the injunction.” Utah Code Ann.
1. South Weber did not take any action on Cobblestone’s pending
business license application from October 2019 through April
2020 because it considered the conditional use permit—a
predicate for an STR business license—to be revoked.
2. South Weber also received a number of complaints from
neighbors that the Property had been used for other revenue-
generating activities, all of which would require a business
license. These activities include renting the Property as a studio
for a boudoir photography business; private pool parties; and
special events, including a wedding reception.
20210028-CA 4 2022 UT App 63South Weber v. Cobblestone
§ 10-9a-802(1)(a) (LexisNexis Supp. 2021). Shortly thereafter, the
parties stipulated to a partial preliminary injunction under which
Cobblestone was enjoined from using the Property for any
business activity except “short term rental.”
¶11 In November 2020, the district court held a hearing on the
request for injunction. At the close of the hearing, the court
granted South Weber’s motion and enjoined Cobblestone, under
Utah Code section 10-9a-802, from operating the Property as an
STR without a valid business license. The court held that
Cobblestone’s use of the Property as an STR without a business
license was a violation of the Ordinance, that Cobblestone’s use of
the Property did not constitute a nonconforming use that would
exempt it from the Ordinance, and that none of the defenses
Cobblestone raised precluded entry of the injunction. In its
written order, the court explained that STRs “are not included” in
the South Weber City Code’s (South Weber Code) list of permitted
uses, and “[t]hey would have to be . . . for [Cobblestone] to prevail
on [its] claim that [its] use of the Property is a nonconforming
use.” The court also noted the use of the Property as an STR did
not fall within the definition of “Dwelling, one-family,” which
was one of the “permitted uses closest to [Cobblestone’s] use of
the Property.”
¶12 Following entry of the district court’s order, the parties
filed a stipulation and motion for final judgment. The court
granted the motion and entered a final judgment on December 4,
2020, providing that the preliminary injunction “remains in full
force and effect unless altered by this Court or any ruling on
appeal.” 3
3. Although not part of the record on appeal, since the entry of the
district court’s order, South Weber has denied Cobblestone’s
application for a business license. Cobblestone appealed, and the
(continued…)
20210028-CA 5 2022 UT App 63South Weber v. Cobblestone
ISSUES AND STANDARDS OF REVIEW
¶13 Cobblestone now appeals and raises two issues for our
review. First, Cobblestone argues the district court erred in
interpreting the South Weber Code to determine that
Cobblestone’s use of the Property as an STR was not a permitted,
legal nonconforming use. “The proper interpretation and
application of a statute is a question of law which we review for
correctness, affording no deference to the district court’s legal
conclusions.” Ellison v. Stam, 2006 UT App 150, ¶ 16, 136 P.3d 1242(quotation simplified). “We apply the same standard to the
[district] court’s interpretation of an ordinance.” Town of Alta v.
Ben Hame Corp., 836 P.2d 797, 800 (Utah Ct. App. 1992).
¶14 Second, Cobblestone argues that even if its use of the
Property as an STR does not constitute a legal nonconforming use
that would exempt it from the business license requirement,
South Weber should be estopped from enforcing the Ordinance’s
business license requirement under the doctrine of equitable
estoppel. “The issue of whether equitable estoppel has been
proven is a classic mixed question of fact and law.” Iota, LLC v.
Davco Mgmt. Co., 2012 UT App 218, ¶ 12, 284 P.3d 681 (quotation
simplified). Therefore, we grant the district court’s decision “a fair
degree of deference when we review . . . whether the requirements
of the law of estoppel have been satisfied.” Id. (quotation
simplified). We will overturn a district court’s decision to grant an
injunction only if the court abused its discretion. See Carrier v.
Lindquist, 2001 UT 105, ¶ 26, 37 P.3d 1112. 4
South Weber City Council denied that appeal in May 2021,
upholding the denial of the application.
4. Cobblestone also argues the doctrine of unclean hands should
be invoked against South Weber to prevent enforcement of the
(continued…)
20210028-CA 6 2022 UT App 63South Weber v. Cobblestone
ANALYSIS
I. Cobblestone’s Use of the Property as an STR Was Not a
Permitted, Legal Nonconforming Use.
¶15 Cobblestone first argues the district court erred in
determining that its use of the Property as an STR prior to the
adoption of the Ordinance was not a permitted, legal
nonconforming use. We disagree.
¶16 The South Weber Code specifies the zoning classifications
applied to property within South Weber. It provides,
No land shall be used or occupied, no building or
structure shall be designed, erected, altered, used or
occupied for use, except for uses specifically
permitted on the land upon which the building or
structure is located or erected or use established as
permitted in the regulations for the zone in which
said land is located.
South Weber, Utah, Code § 10-11-6(A). However, the South
Weber Code also allows
for the continuation of use of any building
structures, . . . which either existed as a legal use
before the effective date hereof or which was lawfully
operated or used thereafter in accordance with the
provisions of the ordinance codified herein, but
injunction. But this argument is inadequately briefed because
Cobblestone fails to provide “meaningful legal analysis”
explaining why South Weber’s actions in pursuing the injunction
amount to unclean hands or sufficient “citation to relevant legal
authority.” See Fraughton v. Utah State Tax Comm’n, 2019 UT App
6, ¶ 21, 438 P.3d 961 (quotation simplified). Thus, we do not
address it further.
20210028-CA 7 2022 UT App 63South Weber v. Cobblestone
which by reason of amendment to this title became
a use which is not permitted in the zone in which it
is located.
Id. § 10-10-1 (emphasis added).
¶17 In May 2019, South Weber adopted the Ordinance, which
required a conditional use permit and a business license for a
property to be used as an STR. Id. § 3-2-1(A)(7); see also id. § 10-18-
3. Thus, pursuant to the South Weber Code, the Property could be
exempt from the Ordinance only if its use as an STR “existed as a
legal use before the effective date” of the Ordinance or if the
Property had been “lawfully operated or used” after the
Ordinance was enacted. See id. § 10-10-1.
¶18 Cobblestone’s Property is, and always has been, located in
an agricultural zone, with the permitted uses expressly
enumerated in the South Weber Code. See id. § 10-5E-2; id. § 10-1-
10A. Although an STR is not expressly listed as a permitted use in
an agricultural zone—which fact Cobblestone acknowledges—it
nevertheless contends the use of the Property as an STR fits into
the statutory definition of “dwelling” and therefore qualifies as a
permitted use.
¶19 Prior to the adoption of the Ordinance, one of the
permitted uses in an agricultural zone was “Dwellings, one-
family.” The South Weber Code defined “dwelling” as “[a]
building designed and used for residential purposes including
one-, two-, three- or four- family units, but not including
apartments, boarding houses, hotels, lodging houses or tourist
courts.” Id. § 10-1-10. Relying on this definition, the district court
concluded Cobblestone’s use of the Property as an STR “does not
fall within the definition of” “Dwelling, one-family.” Specifically,
the court concluded the use of the Property as an STR “does fall
within” the enumerated exclusions from the permitted use of
“dwellings,” i.e., “boarding house” or “lodging house.”
20210028-CA 8 2022 UT App 63South Weber v. Cobblestone
¶20 On appeal, Cobblestone contends the district court
incorrectly interpreted the Ordinance by construing its terms
restrictively rather than adhering to the “presumption . . . that
would prefer permission to the property owner unless required
otherwise.” Specifically, Cobblestone points to the court’s
interpretation of the term “dwelling,” and posits the court erred
in concluding the use of the Property as an STR did not fall within
this permitted use.
¶21 First, Cobblestone argues the use of the Property as an STR
prior to the adoption of the Ordinance was permitted as a
“dwelling” because a “dwelling” is merely “[a] building designed
and used for residential purposes.” See id. But this argument is
unpersuasive because it focuses on only the building as a
structure itself rather than the structure’s use and wholly ignores
the restriction that all dwellings located in an agricultural zone be
limited to “one-family” dwellings. By neglecting to address the
“one-family” restriction, Cobblestone has failed to “provide
sufficient argument for ruling in its favor.” See Pinder v. Duchesne
County Sheriff, 2020 UT 68, ¶ 36, 478 P.3d 610 (quotation
simplified). Therefore, Cobblestone has not met its burden of
persuasion on appeal.
¶22 Second, Cobblestone takes issue with the district court’s
determination that the use of the Property as an STR falls within
the exclusion from the definition of dwelling. In particular, it
asserts the court erred in ruling that the “usual meaning of
‘lodging’ included [STRs].” The court rejected Cobblestone’s
argument that “use of the Property is not as a boarding house,
hotel, lodging house, or tourist court,” concluding instead that the
use of the Property as an STR “does fall within these forms of
uses.” It reasoned that “Boarding house and/or rooming house”
is defined in the South Weber Code as “[a] building used for the
purpose of providing meals or lodging, or both meals and lodging
for pay or compensation of any kind for three (3) or more persons.”
(Quoting South Weber, Utah, Code § 10-1-10.) And while
20210028-CA 9 2022 UT App 63South Weber v. Cobblestone
“lodging” is not defined in the South Weber Code, the court
explained the dictionary definition and the “usual meaning” of
that term “includes the[] type of [STRs] for which the Property has
been used.”
¶23 We see no error in the district court’s interpretation of the
South Weber Code on this point. In defining “lodging,” the court
first looked to the South Weber Code. Finding that the term was
not defined, the court then consulted two separate dictionaries to
ascertain the term’s “usual meaning.” See South Weber, Utah,
Code § 10-1-10 (providing that words not defined in the South
Weber Code “shall be given their usual meaning as found in the
English dictionary unless the context of the words clearly indicate
a different meaning”). The first dictionary the court looked to
defines “lodging” as “[a] place in which someone lives or stays
temporarily.” Lodging, Oxford English Dictionary, https://www.l
exico.com/en/definition/lodging [https://perma.cc/AT5W-JV4S].
The second similarly defines “lodging” as including “sleeping
accommodations” and “a temporary place to stay.” Lodging,
Merriam-Webster, https://www.merriam-webster.com/dictionar
y/lodging [https://perma.cc/BX5C-96FE]. In relying on these
definitions, the court correctly determined the use of the Property
as an STR falls within the South Weber Code’s definition of
“Boarding house and/or rooming house” and therefore is exempt
from being classified as a “dwelling.” 5
¶24 In sum, the district court correctly determined that
Cobblestone’s use of the Property as an STR does not fit within
the South Weber Code’s definition of dwelling. Thus,
5. Cobblestone also appears to argue the district court’s definition
of the word “lodging” was incorrect because the court adopted
dictionary definitions that were “more restrictive . . . of private
property rights.” However, the alternative definitions that
Cobblestone cites would also dictate that use of the Property as an
STR would constitute lodging.
20210028-CA 10 2022 UT App 63South Weber v. Cobblestone
Cobblestone’s use of the Property as an STR was not a permitted,
legal nonconforming use, and its operation as such constitutes a
violation of the Ordinance. Accordingly, the court did not abuse
its discretion by granting South Weber’s motion for an injunction
under Utah Code section 10-9a-802.
II. The District Court Did Not Err in Rejecting Cobblestone’s
Equitable Estoppel Argument.
¶25 Cobblestone next argues that even if its use of the Property
as an STR does not constitute a legal nonconforming use, thereby
requiring it to have a business license, South Weber should be
estopped from enforcing the Ordinance’s business license
requirement under the doctrine of equitable estoppel.
¶26 Equitable estoppel has three elements: (1) “a statement,
admission, act, or failure to act by one party inconsistent with a
claim later asserted”; (2) “reasonable action or inaction by the
other party taken or not taken on the basis of the first party’s
statement, admission, act or failure to act”; and (3) “injury to the
second party that would result from allowing the first party to
contradict or repudiate such statement, admission, act, or failure
to act.” Hall v. Peterson, 2017 UT App 226, ¶ 29, 409 P.3d 133(quotation simplified).
¶27 “Generally, the doctrine of estoppel is not assertable
against the state and its agencies.” McLeod v. Retirement Board,
2011 UT App 190, ¶ 20, 257 P.3d 1090 (quotation simplified).
However, Utah courts have recognized a narrow exception to this
general rule for “unusual circumstances where it is plain that the
interests of justice so require.” Eldredge v. Utah State Ret. Board, 795
P.2d 671, 675 (Utah Ct. App. 1990) (quotation simplified). In cases
where a claimant asserts estoppel against a governmental entity,
the exception applies only if the claimant “show[s] that the entity
made very clear, well-substantiated representations.” Myers v.
Utah Transit Auth., 2014 UT App 294, ¶ 20, 341 P.3d 935 (quotation
simplified). Absent a “specific statement or written
20210028-CA 11 2022 UT App 63South Weber v. Cobblestone
representation” by the government, the exception does not apply
and the estoppel claim fails. Anderson v. Public Service Comm’n, 839
P.2d 822, 828 (Utah 1992).
¶28 Cobblestone posits South Weber should be estopped from
requiring Cobblestone to obtain a business license to operate the
Property as an STR for two main reasons. First, South Weber was
aware that Cobblestone was operating an STR without a business
license for many months, but it did not complain of the missing
license before filing for injunctive relief. Second, South Weber’s
“website expressly stated that [South Weber] no longer required
a business license for rental use of property.” Neither argument is
persuasive.
¶29 First, South Weber’s failure to enforce the Ordinance,
including the business license requirement, prior to initiating the
proceeding for injunctive relief is insufficient to invoke the
exception allowing a claimant to assert estoppel against a
governmental entity. Our supreme court has long recognized that
“failure to enforce zoning for a time does not forfeit the power to
enforce.” Town of Alta v. Ben Hame Corp., 836 P.2d 797, 803 (Utah
Ct. App. 1992); see also Salt Lake County v. Kartchner, 552 P.2d 136,
138 (Utah 1976) (“Ordinarily a municipality is not precluded from
enforcing its zoning regulations[] when its officers have remained
inactive in the face of such violations.”). Accordingly, assuming
without deciding that South Weber did not consistently enforce
the Ordinance, such failure to enforce does not render South
Weber powerless to enforce its regulations at a later time.
¶30 Second, the statements on South Weber’s website
regarding the business license requirements for rental properties
do not apply to STRs. During the relevant time period, South
Weber’s website stated, “As of August 2016, South Weber no
longer requires a business license for a rental unit.” (Emphasis
added.) And at that time, section 3-2-1(A) of the South Weber
Code defined “Rental Units” as “[a] building or part of a building
20210028-CA 12 2022 UT App 63South Weber v. Cobblestone
that is used or designated for use as a residence by one or more
persons, and is available to be rented, loaned, or leased for a
period of one month or more.” (Emphasis added.) As an STR, the
Property does not fit within this statutory definition of “Rental
Units.” Consequently, South Weber’s website did not contain a
“specific statement or written representation” that would warrant
estopping South Weber from enforcing its business license
requirement for STRs. See Anderson, 839 P.2d at 828.
¶31 The district court correctly concluded Cobblestone had not
proved that South Weber should be estopped from enforcing the
Ordinance. Because Cobblestone’s use of the Property as an STR
without a valid business license violates the Ordinance, South
Weber was entitled to its requested injunction under Utah Code
section 10-9a-802. Therefore, the court did not abuse its discretion
in granting South Weber’s motion.
CONCLUSION
¶32 The district court did not abuse its discretion by enjoining
Cobblestone’s use of the Property as an STR without a business
license in violation of the Ordinance. The court correctly
determined that Cobblestone’s use of the Property as an STR prior
to the adoption of the Ordinance was not a permitted, legal
nonconforming use. The court also properly rejected
Cobblestone’s argument that South Weber should be estopped
from requiring Cobblestone to obtain a business license to operate
the Property as an STR. We therefore affirm.
20210028-CA 13 2022 UT App 63