Checketts v. Providence City , 420 P.3d 71 ( 2018 )

2018 UT App 48THE UTAH COURT OF APPEALS
CHRIS CHECKETTS AND SANDRA CHECKETTS,
Appellants,
v.
PROVIDENCE CITY AND
PROVIDENCE CITY APPEAL AUTHORITY,
Appellees.
Opinion
No. 20160570-CA
Filed March 22, 2018
First District Court, Logan Department
The Honorable Brandon J. Maynard
No. 140100362
Stephen K. Christiansen, Attorney for Appellants
Craig M. Call and Jonathan W. Call, Attorneys
for Appellees
JUDGE GREGORY K. ORME authored this Opinion, in which JUDGES
KATE A. TOOMEY and DIANA HAGEN concurred.
ORME, Judge:
¶1 After Providence City (the City) notified Chris and Sandra
Checketts of its determination that their home business violated
several local ordinances, the Checkettses brought the matter
before the Providence City Appeal Authority (the Appeal
Authority). The Appeal Authority solicited comments from the
public and permitted the parties to present evidence and
argument at a hearing, and in the end, it concluded that the
City’s decision was not arbitrary, capricious, or illegal. The
Checkettses sought review of the Appeal Authority’s decision in
the district court, with even less success: the court concluded
that the decision was adequately supported by the record and
granted the City an award of attorney fees. The Checkettses now
Checketts v. Providence City
appeal the decision of the district court. We affirm the court’s
determination that the Appeal Authority’s decision was proper
but reverse its decision to award attorney fees to the City.
BACKGROUND
¶2 The Checkettses own two noncontiguous lots in a
neighborhood situated within a “Single Family Traditional”
zone (SFT Zone) of Providence, Utah. The first lot (the Residence
Lot) has been the Checkettses’ residence for more than twenty
years. Their second lot (the Business Lot) is three doors down
from the Residence Lot. Prior to 2005, the Checkettses built a
shed on the Business Lot, which they used for storing personal
items.
¶3 The Checkettses are business owners. In 2003, the City
granted them a license to operate a home business, “Custom
Counter Tops,” on the Residence Lot. The 2003 license described
the business activities of Custom Counter Tops as “[receiving]
orders by fax or phone for countertops” and “[a]ssembl[ing],
deliver[ing] and install[ing] tops on [site] in homes mostly in the
Cache Valley area.” The following year, the City issued the
Checkettses a new business license, which described their
business activities as manufacturing and installing solid surface
counter tops. The City renewed that license annually until 2008.
¶4 As the Checkettses were getting their home business off
the ground, they apparently vacillated on how to best use the
Business Lot. In June 2004, they applied for a permit to build a
shed “addition” on the lot, without indicating that it would be
used for business purposes. The stated purpose of this addition
was to “add[] to the square footage” of the existing shed so they
could “stor[e] personal vehicles/mechanical toys.” But although
the City approved the application, the building permit expired
before construction commenced. Then, in November 2005, the
Checkettses applied for a second building permit, this time
indicating that the proposed shed addition would be used for
“commercial” purposes. The City approved the second
20160570-CA 2 2018 UT App 48Checketts v. Providence City
application, and, by May 2007, the Checkettses had constructed
their shed and it had passed all necessary inspections.
Significantly, the City made express reference to the first
application in its decision to approve the second.
¶5 In June 2008, several of the Checkettses’ neighbors filed a
complaint with the City regarding the activities the Checkettses
were conducting on the Business Lot. 1 The Checkettses, their
neighbors claimed, had been operating heavy machinery to
manufacture and sell large slabs of granite on the lot, and they
had also been inviting the public into the neighborhood to view
samples of finished countertops. A few weeks later, the City
mailed a letter to the Checkettses notifying them that they were
operating their business “in violation of Providence City
Ordinances” (the City Code) and ordering them to relocate their
business within six months.
¶6 Months passed, and in May 2009, the City sent another
letter to the Checkettses referencing the previous communication
regarding compliance deadlines. The Checkettses responded by
claiming unexpected financial difficulties and requesting an
extension. The City granted their request, extending their
compliance deadline to December 31, 2009. A few weeks before
the compliance deadline expired, the City extended it by one
year to December 2010 based on “several options” that would
bring the Business Lot into compliance, including purchasing the
adjoining lot. In February 2010, the Checkettses sent the City a
letter informing it that they were moving forward with
purchasing a strip of land extending from the Residence Lot to
the Business Lot and that their understanding was that this
purchase would bring them into compliance.
¶7 In April 2011, after seeking an advisory opinion on the
status of the Checkettses’ business from the Office of the
1. Among the neighbors who filed the complaint with the City
were two who later formally intervened.
20160570-CA 3 2018 UT App 48Checketts v. Providence City
Property Rights Ombudsman, the City informed the Checkettses
that it would not renew their business license that year and
instead invited them to apply for a conditional use permit
(CUP). The Checkettses did so, and on May 24, 2011, the City
Land Use Authority (the LUA) held a public hearing to consider
the matter. Less than one month later, the LUA approved the
Checkettses’ CUP application, thereby permitting the
Checkettses to continue operating their business on the Business
Lot, subject to several conditions.
¶8 Three of those conditions are significant in light of the
events that followed. First, the Checkettses agreed to comply
with a landscaping plan for the Business Lot, which they were to
“complete[] within 45 days of the approval of the Conditional
Use.” Second, the Checkettses agreed to bring their use of the
Business Lot into compliance with all “rules, regulations, codes,
and ordinances.” And third, when the Checkettses had filed
their application for a building permit in 2005, the City Code
provided that a “Home Business” was “any use conducted
entirely on [the] homeowner’s land.” Thus, because the
Checkettses owned the Business Lot, their business fit the
definition. But in the intervening years, the City Code was
amended to require that a homeowner’s business be “conducted
on land containing the [homeowner’s] primary dwelling” to
qualify as a “Home Business.” For this reason, to bring the
Checkettses’ use of their land into compliance with the new
zoning ordinance, the LUA ordered them to combine their two
lots into a single parcel by means of a one-foot strip of land
connecting the properties, which the Checkettses had already
acquired for that purpose. This, the LUA explained, would
require that the Checkettses obtain the City’s approval.
¶9 Yet even after they had procured their CUP, the
Checkettses continued to miss deadlines. On July 6, 2011, they
sent the first of several letters to the City requesting relief from
the 45-day window for completing the CUP’s landscaping
condition, citing their neighbors’ appeal of the LUA’s CUP
decision to the Appeal Authority as the reason for their delay.
20160570-CA 4 2018 UT App 48Checketts v. Providence City
Then, in September 2011, they submitted an application to the
City to join the Residence Lot and the Business Lot into a single
parcel, but they included a request that the City hold their
application in abeyance until the neighbors’ appeal was
resolved. In response to these and similar communications
between July 2011 and March 2014, the City did not expressly
grant the Checkettses any extension or stay of the 45-day
window, but neither did it disallow an extension or stay or
affirmatively hold them in violation of any applicable condition
or ordinance. In the meantime, the neighbors’ appeal made its
way from the Appeal Authority to the district court, where the
LUA’s decision to issue the CUP was ultimately upheld.
¶10 Finally, on March 6, 2014, the City notified the
Checkettses that they were operating their business in violation
of several sections of the City Code by “[m]aintaining a land use
that is not allowed in the zone within which the land use is
located.” In response, the Checkettses filed an application to
amend their existing CUP. But rather than considering the
Checkettses’ application, the City returned it to them, explaining
that there was no longer any valid CUP to amend.
¶11 The Checkettses challenged the validity of the City’s
actions before the Appeal Authority.2 After holding a hearing on
the matter and receiving comments from the public, the Appeal
Authority ruled in favor of the City. In articulating its decision,
the Appeal Authority explained that the Checkettses’ business
“has never been a permitted use [of the Business Lot] in the SFT
2. The Checkettses petitioned the district court for review of the
City’s action at this point as well, but the court dismissed the
petition for failure to exhaust administrative remedies. We
dismissed the Checkettses’ appeal of that decision in Checketts v.
Providence City, 2016 UT App 161, 381 P.3d 1142. Further, in
accordance with rule 33 of the Utah Rules of Appellate
Procedure, we awarded the City its attorney fees reasonably
incurred in that appeal. Id. ¶ 17.
20160570-CA 5 2018 UT App 48Checketts v. Providence City
Zone without a CUP” and that the Checkettses had “not shown
that all the elements necessary to prove equitable zoning
estoppel are present.” It made clear, however, that if either party
filed a timely petition for judicial review in the district court, the
effect of its ruling would be “stayed pending final disposition of
that appeal.”
¶12 Following their loss before the Appeal Authority, the
Checkettses petitioned the district court for review. The parties
filed cross-motions for summary judgment, and the court denied
the Checkettses’ motion and granted summary judgment to the
City. Additionally, the court granted the City’s motion for an
award of attorney fees and costs under section 13-43-206(12) of
the Utah Code. That section provides that
if the same issue that is the subject of an advisory
opinion [from the Office of the Property Rights
Ombudsman] is listed as a cause of action in
litigation, and that cause of action is litigated on
the same facts and circumstances and is resolved
consistent with the advisory opinion[,] . . . the
substantially prevailing party on that cause of
action . . . may collect reasonable attorney fees and
court costs pertaining to the development of that
cause of action from the date of the delivery of the
advisory opinion to the date of the court’s
resolution[.]
Utah Code Ann. § 13-43-206(12)(a)(i)(A) (LexisNexis Supp. 2017).
The Checkettses paid the award “under protest” and now appeal
the district court’s decisions.
ISSUES AND STANDARDS OF REVIEW
¶13 The Checkettses contend that the district court erred in
denying their motion for summary judgment and granting the
City’s motions for summary judgment and an award of attorney
20160570-CA 6 2018 UT App 48Checketts v. Providence City
fees. In general, “[w]e review a district court’s grant [or denial]
of summary judgment for correctness and afford no deference to
the court’s legal conclusions.” Salt Lake City Corp. v. Big Ditch
Irrigation Co., 2011 UT 33, ¶ 18, 258 P.3d 539. Likewise, although
typically “the grant or denial of attorney fees is left to the district
court’s sound discretion,” we review its decision for correctness
“to the extent that [the decision to award or deny] statutory
attorney fees depends upon an interpretation of the applicable
statute.” Warner v. Warner, 2014 UT App 16, ¶ 16, 319 P.3d 711.
¶14 We also observe that the Utah Supreme Court recently
clarified the appropriate standard for reviewing a district court’s
disposition of a petition for review of an administrative decision.
While we review the district court’s decision rather than an
administrative body’s decision directly, “[w]e afford no
deference to the [district] court’s decision and apply the
statutorily defined standard to determine whether the court
correctly determined whether the administrative decision was
arbitrary, capricious, or illegal.” McElhaney v. City of Moab, 2017
UT 65, ¶ 26. Accord Utah Code Ann. § 10-9a-801(3)(a)(ii)
(LexisNexis 2015). 3
3. The Legislature amended section 10-9a-801 in 2017. Among
other things, it changed “arbitrary, capricious, or illegal” to
“arbitrary and capricious; or illegal.” Utah Code Ann.
§ 10-9a-801(3)(b)(ii)(A)–(B) (LexisNexis Supp. 2017). We apply
the previous standard, as it was the standard in effect at the time
the Appeal Authority and district court ruled. We express no
opinion on whether the analysis would be different under the
standard as rephrased. But we are hard pressed to think of an
administrative decision being reviewed under this rubric that
would be arbitrary but not capricious, or capricious but not
arbitrary. As such, we are skeptical that the changed conjunction
and punctuation was intended to alter the applicable analysis.
20160570-CA 7 2018 UT App 48Checketts v. Providence City
ANALYSIS
I. Motions for Summary Judgment
¶15 The Checkettses maintain that the district court’s decision
denying summary judgment to them and granting it to the City
was erroneous for two reasons. First, they contend that the
district court erred in upholding the Appeal Authority’s decision
that the operation of the business on the Business Lot was not a
legal nonconforming use of the property. Second, they contend
the court erred in upholding the Appeal Authority’s
determination that they had failed to prove that the doctrine of
zoning estoppel applied to their case. We address each argument
in turn.
A. The Appeal Authority’s Legal Nonconforming Use
Analysis
¶16 Utah’s Municipal Land Use, Development, and
Management Act (MLUDMA) 4 provides that, under certain
circumstances, a property owner may continue using its land for
a particular purpose even after a change in the law renders that
purpose impermissible. See Utah Code Ann. § 10-9a-511(1)(a)
(LexisNexis 2015). This is known as a “nonconforming use.” See
id. § 10-9a-103(37) (LexisNexis Supp. 2017). A property owner’s
use of its property falls within the definition of a legal
“nonconforming use” if three conditions are met: (1) the use
“legally existed before its current land use designation”; (2) the
use “has been maintained continuously since the time the land
use ordinance governing the land changed”; and (3) “because of
one or more subsequent land use ordinance changes,” the use
“does not conform to the regulations that now govern the use of
the land.” Id. The Appeal Authority determined that the
Checkettses’ use of the Business Lot did not qualify as a legal
nonconforming use because the first condition was not satisfied
4. MLUDMA is codified at title 10, chapter 9a of the Utah Code.
20160570-CA 8 2018 UT App 48Checketts v. Providence City
in their case. Specifically, it determined that the Checkettses’
business “has never been a permitted use in the SFT Zone
without a CUP.”
¶17 The Checkettses argue that the Appeal Authority’s
determination is “unsustainable” because, in stating its
conclusions of law, it merely provides bare legal citations
without “analyz[ing] them in light of its findings.” Further, they
observe that one of the Appeal Authority’s legal citations is
“nothing more than a description of zoning districts,” which
“does not describe uses allowed or disallowed within [the SFT
Zone].” But to survive the scrutiny of a reviewing court, a land
use authority’s legal analysis need not be a shining example of
lucidity. And because the Checkettses have not argued that the
law cited by the Appeal Authority was inapplicable or
misconstrued, or that its decision is otherwise illegal, they have
not persuaded us that its decision was actually invalid, as
opposed to being inartfully explained. See id. § 10-9a-801(3)(b)(i)
(“A court shall . . . presume that a final decision of . . . an appeal
authority is valid[.]”). Our review is therefore statutorily limited
to considering whether the Appeal Authority’s decision was
arbitrary or capricious. See id. § 10-9a-801(3)(a)(ii) (LexisNexis
2015) (“The courts shall . . . determine only whether or not the
decision, ordinance, or regulation is arbitrary, capricious, or
illegal.”).
¶18 “A land use authority’s decision is arbitrary or capricious
only if it is not supported by substantial evidence in the record.”
Pacific West Communities, Inc. v. Grantsville City, 2009 UT App
291, ¶ 22, 221 P.3d 280 (citation and internal quotation marks
omitted). Accord Utah Code Ann. § 10-9a-801(c). Substantial
evidence is “that quantum and quality of relevant evidence that
is adequate” to persuade a reasonable mind. Pacific West
Communities, 2009 UT App 291, ¶ 22 (citation and internal
quotation marks omitted). “In determining whether substantial
evidence supports the [land use authority’s] decision we will
consider all the evidence in the record, both favorable and
contrary[,] and determine whether a reasonable mind could
20160570-CA 9 2018 UT App 48Checketts v. Providence City
reach the same conclusion as the [land use authority].” Id.(second alteration in original) (citation and internal quotation
marks omitted).
¶19 Upon applying this highly deferential standard, we have
no trouble concluding that the district court was correct in
upholding the Appeal Authority’s decision that the Checkettses’
business was never a permissible use of the Business Lot. In
articulating its decision, the Appeal Authority expressly
referenced section 10-4-1 of the City Code then in effect. That
section established the various zoning districts into which the
City is divided, including the district in which the Business Lot
lies, namely the SFT Zone. Section 10-6-2 of the City Code, in
turn, articulated the uses allowable in each of the zoning districts
established in section 10-4-1, and section 10-6-1 made clear that
“no land shall . . . be used . . . for other than those uses specified
for the district in which it is located.” And while the record
contains evidence that the Checkettses had been operating wet-
cutting and stone-transporting machinery on the Business Lot
prior to obtaining their CUP, section 10-6-2 then provided that
the only “Commercial/Related” or “Industry and
Manufacturing” uses that were permissible in the SFT Zone
without a CUP were “Print shop/sales” and “Research facilities.”
The Checkettses’ business activities could not reasonably be said
to fit into either of those categories. Therefore, like the district
court, we conclude that the Appeal Authority’s decision was
supported by substantial evidence in the record.
¶20 The Checkettses’ other arguments in favor of reversing
the Appeal Authority’s legal nonconforming use decision are
unavailing and merit only brief discussion. To begin with, they
argue that the Appeal Authority should have determined that
their business was valid at the outset as an “accessory” use,
which is a permissible use in SFT Zones under section 10-6-2.
The City Code defines an “accessory building” as “[a]
subordinate building, attached or detached, and used for a
purpose customarily incidental to the main structure on a lot,
such as a private garage, offices, storage or repair facilities, etc.”
20160570-CA 10 2018 UT App 48Checketts v. Providence City
Yet the Checkettses fail to explain why their business is, as a
matter of law, more akin to a use associated with an “accessory
building” than a “Commercial/Related” or “Industry and
Manufacturing” use. The Checkettses also argue that the Appeal
Authority must have erred in determining that their use of the
Business Lot was never permissible, because it is undisputed
that the City approved their building permit for the lot in 2005
and they indicated in their application for that permit that their
intended use would be “commercial.” But the City could quite
reasonably have assumed that the Checkettses intended to limit
their use of the lot to those “Commercial/Related” activities that
the City Code expressly permitted in the SFT Zone in 2005, such
as a “Print shop/sales” business. Finally, the Checkettses argue
that the Appeal Authority and the district court both erred in
their legal-nonconforming-use analysis because they relied on
the Ombudsman’s advisory opinion when reaching their
conclusions, contrary to “legislative mandate.” See Utah Code
Ann. § 13-43-206(11) (LexisNexis Supp. 2017) (providing that an
advisory opinion by the Ombudsman is not “admissible as
evidence in . . . a dispute involving land use law”). But the
Appeal Authority makes no reference to the Ombudsman’s
opinion in its findings and conclusions, and the mere fact that its
opinion is in agreement with the Ombudsman’s is insufficient to
demonstrate that the Appeal Authority relied on the
Ombudsman’s opinion when reaching its conclusions. And
further, even if we assume that the district court erred in
referencing the Ombudsman’s opinion, the question before us is
not the validity of the court’s decision but that of the Appeal
Authority.
B. The Appeal Authority’s Zoning Estoppel Analysis
¶21 The Checkettses next contend the district court erred in
upholding the Appeal Authority’s decision that they failed to
prove the doctrine of zoning estoppel applied in their case. The
zoning estoppel doctrine
20160570-CA 11 2018 UT App 48Checketts v. Providence City
estops a government entity from exercising its
zoning powers to prohibit a proposed land use
when a property owner, relying reasonably and in
good faith on some governmental act or omission,
has made a substantial change in position or
incurred such extensive obligations or expenses
that it would be highly inequitable to deprive the
owner of his right to complete his proposed
development.
Fox v. Park City, 2008 UT 85, ¶ 35, 200 P.3d 182 (citation and
internal quotation marks omitted). The zoning estoppel doctrine
does not apply unless the government entity “committed an act
or omission upon which the developer could rely in good faith,”
and the “action upon which the developer claims reliance must
be of a clear, definite and affirmative nature.” Id. (citation and
internal quotation marks omitted). Finally, “exceptional
circumstances must be present[,] such as the intentional
discriminatory application of the ordinance[,]” before zoning
estoppel will apply to preclude government action. Utah County
v. Baxter, 635 P.2d 61, 65 (Utah 1981).
¶22 The Checkettses maintain that the Appeal Authority erred
in its evaluation of the evidence relating to the equitable
estoppel issue. They point out that the City approved their
application for a building permit in 2005, which indicated that
their intended use for the Business Lot would be “commercial,”
and they further observe that “City inspectors approved the
unique building construction for its intended purpose.”
Nevertheless, while these points may appear significant in
isolation, “it is not our place to re-weigh the evidence.” See Baker
v. Park City Mun. Corp., 2017 UT App 190, ¶ 26, 405 P.3d 962.
Because the Checkettses have given us no reason to believe that
the Appeal Authority’s decision was illegal, our review is
limited to determining whether the decision is supported by
substantial evidence in the record. See Pen & Ink, LLC v. Alpine
City, 2010 UT App 203, ¶ 16, 238 P.3d 63. Under this deferential
standard of review, “[w]e do not . . . weigh the evidence anew or
20160570-CA 12 2018 UT App 48Checketts v. Providence City
substitute our judgment for that of the [land use authority].”
Springville Citizens for a Better Community v. City of Springville,
1999 UT 25, ¶ 24, 979 P.2d 332. Instead, “[w]e must simply
determine, in light of the evidence before the [land use
authority], whether a reasonable mind could reach the same
conclusion as the [land use authority].” Patterson v. Utah County
Board of Adjustment, 893 P.2d 602, 604 (Utah Ct. App. 1995).
¶23 Considering all the evidence in the record, we believe that
reasonable minds could indeed reach the conclusion that the
City was not estopped from applying its zoning ordinances in
this case. To begin, while it is true that the City did approve the
Checkettses’ 2005 building permit application, it is also true that
it had approved a similar application from the Checkettses for
the same lot only a few months before in 2004. And the prior
application—to which the City expressly referred when
approving the 2005 application—did not indicate an intended
commercial use. This supports the Appeal Authority’s
conclusion that the Checkettses “failed to show . . . that they
properly conferred with the City regarding the uses that were
permitted at [the Business Lot] before beginning operation of the
Business.” Furthermore, the record shows that the Checkettses
continued to invest heavily in their business throughout the
protracted history of their communications with the City
regarding their municipal ordinance violations, all the while
seeking continuances and otherwise delaying their day of
reckoning. This supports the Appeal Authority’s conclusion that
“the record is replete with warnings from the City that the
Business did not comply with the City Code” and that the
Checkettses “failed to heed these warnings.” At the very least,
these facts from the record demonstrate that the equities of the
situation were fairly debatable, supporting the conclusion that
the Checkettses failed to make the necessary showing of
“exceptional circumstances” akin to discriminatory enforcement.
See Baxter, 635 P.2d at 65. Accordingly, we conclude, as did the
20160570-CA 13 2018 UT App 48Checketts v. Providence City
district court, that the Appeal Authority’s zoning estoppel
decision was not arbitrary or capricious. 5
II. Attorney Fees and Costs
¶24 The Checkettses contend that the district court erred in
granting the City’s motion for attorney fees and costs reasonably
incurred while litigating against them. The court granted the
City’s motion, brought under section 13-43-206(12) of the Utah
Code, awarding it a total amount in excess of $17,000. 6 Because
we conclude that the Checkettses’ challenge to the City’s notice
of violation did not trigger subsection (12), making the award of
5. Here again, the Checkettses maintain that the district court
erred in upholding the Appeal Authority’s decision because the
court made reference to the Ombudsman’s advisory opinion in
its order. We reject this argument for the same reason we
rejected it earlier in our opinion: the Appeal Authority did not
mention the Ombudsman’s opinion, and it is the decision of the
Appeal Authority that is ultimately at issue here.
6. The Checkettses paid the award “under protest” before the
district court entered its final order. “The general rule in our
state is that if a judgment is voluntarily paid, which is accepted,
and a judgment satisfied, the controversy has become moot and
the right to appeal is waived.” Utah Res. Int’l, Inc. v. Mark Techs.
Corp., 2014 UT 59, ¶ 29, 342 P.3d 761 (citation and internal
quotation marks omitted). However, “where a judgment
debtor’s intention of preserving his right to appeal is made to
appear clearly on the record, he does not waive his right to
appeal.” Id. ¶ 33 (citation and internal quotation marks omitted).
Accordingly, because the Checkettses made their objection clear
on the record, they did not waive their right to appeal the district
court’s award of attorney fees and costs by paying it in advance
of our decision, and now they are entitled to a full refund, as
hereinafter explained.
20160570-CA 14 2018 UT App 48Checketts v. Providence City
fees and costs pursuant to that section improper, we vacate the
district court’s award.
¶25 Subsection (12) provides that
(a) [I]f the same issue that is the subject of an
advisory opinion is listed as a cause of action in
litigation, and that cause of action is litigated on
the same facts and circumstances and is
resolved consistent with the advisory opinion:
(i) the substantially prevailing party on that
cause of action:
(A) may collect reasonable attorney fees and
court costs pertaining to the
development of that cause of action from
the date of the delivery of the advisory
opinion to the date of the court’s
resolution; and
(B) shall be refunded an impact fee[.]
Utah Code Ann. § 13-43-206(12)(a)(i) (LexisNexis Supp. 2017).
¶26 The Checkettses assert that this issue is one of first
impression, that it will “present itself repeatedly,” and that
“[t]he bench, bar, public, and local municipalities and boards
will benefit from case law on this point.” They request that we
“establish guidelines for awarding fees under the statute and for
the attendant use of an advisory opinion in land use agencies
and on judicial review.”
¶27 The Checkettses are correct that this is an issue of first
impression. Indeed, section 206—much less subsection (12)—has
never before been cited in any appellate decision although it was
enacted over a decade ago, in 2006. We believe that a discussion
of subsection (12) and related provisions is in order to determine
its scope.
20160570-CA 15 2018 UT App 48Checketts v. Providence City
¶28 Title 13, Chapter 43 of the Utah Code is known as the
“Property Rights Ombudsman Act.” The Property Rights
Ombudsman Act outlines the duties and functions of the Office
of the Property Rights Ombudsman (the Office). Among other
duties, the Office “shall . . . provide information to private
citizens, civic groups, government entities, and other interested
parties about takings, eminent domain, and land use law.” Id.§ 13-43-203(1)(a)(vii). One of the Office’s functions is to provide
advisory opinions on certain topics outlined in section 13-43-205.
At the time the City requested an advisory opinion from the
Office in 2011, section 205 expressly permitted “[a] local
government, private entity, or a potentially aggrieved person” to
request an opinion only on the following topics: impact fees,
conditional uses, nonconforming uses, exactions, and land use
applications and related fees. Id. § 13-43-205 (LexisNexis 2013).
Advisory opinions serve as a quasi-mediation tool, but they are
“not binding on any party to, nor admissible as evidence in, a
dispute involving land use law” except for obtaining attorney
fees under section 206(12). Id. § 13-43-206(11) (LexisNexis Supp.
2017). It is within this context that the Legislature enacted
subsection (12).
¶29 The language the Legislature used to describe what
triggers the applicability of subsection (12) is illuminating:
parties may not make use of the attorney fee provision unless the
issue of the advisory opinion “is listed as a cause of action in
litigation.” Id. § 13-43-206(12). This language comes on the heels
of subsection (11), in which the Legislature used much broader
language—an advisory opinion “is not binding on any party to,
nor admissible as evidence in, a dispute involving land use law
except as provided in Subsection (1)”—to describe the
admissibility of advisory opinions in any forum or tribunal. Id.
§ 13-43-206(11) (emphasis added). For several reasons, we do not
believe subsection (12) was triggered here.
¶30 We conclude that for the purposes of section 206, a
challenge to a local land use authority’s decision regarding a
land use dispute is not a “cause of action in litigation” as
20160570-CA 16 2018 UT App 48Checketts v. Providence City
required by subsection (12). If the Legislature meant for
subsection (12) to apply to challenges to a local land use
authority’s decision, it could have mirrored the language it used
in subsection (11) and stated that a party could obtain attorney
fees where the issue of the advisory opinion is the same issue
contested in a land use dispute. But it did not do so, and we
must presume that the Legislature “used each word advisedly.”
See Bagley v. Bagley, 2016 UT 48, ¶ 10, 387 P.3d 1000 (citation and
internal quotation marks omitted). Rather, it appears that the
Legislature intended subsection (12) to be triggered only by
litigation originating in district court, such as declaratory
judgment or condemnation actions.
¶31 It also appears that the Legislature intended
subsection (12) to apply only to a few narrow subject matters.
Significantly, much of subsection (12) discusses impact fees, and
it does not mention any other topic for which a party may
request an advisory opinion under section 205. This is
significant, because we presume that omissions by the
Legislature are purposeful. Bagley, 2016 UT 48, ¶ 10. Moreover,
subsection (12) provides that
(i) the substantially prevailing party on that
cause of action:
(A) may collect reasonable attorney
fees . . . from the date of the delivery of
the advisory opinion to the date of the
court’s resolution; and
(B) shall be refunded an impact fee . . . based
on the difference between the impact fee
paid and what the impact fee should
have been if the government entity had
correctly calculated the impact fee.
Utah Code Ann. § 13-43-206(12)(a)(i) (emphasis added). The use
of the conjunction “and,” immediately followed by “shall be
20160570-CA 17 2018 UT App 48Checketts v. Providence City
refunded an impact fee,” suggests that the Legislature intended
subsection (12) to be narrowly focused to causes of action related
to impact fee challenges or other actions first brought in district
court. Indeed, in 2011, the Legislature enacted the Impact Fees
Act, in which it stated that land owners have “standing to file a
declaratory judgment action challenging the validity of an
impact fee.” Id. § 11-36a-701(1) (LexisNexis 2015). Later in
section 701, the Legislature enacted an exact replica of
subsection (12). Although the Legislature essentially copied and
pasted subsection (12) into section 701, it did not do so anywhere
else in the Utah Code.
¶32 Also revealing is that, in 2014, the Legislature amended
section 205 of the Property Rights Ombudsman Act to add
another topic on which land owners and local governments
could request advisory opinions. The amendment provides that
land owners may request an advisory opinion on whether their
property has been taken “for a public use without just
compensation.” Id. § 13-43-205(2)(c) (LexisNexis Supp. 2017). The
amendment also includes an attorney fee provision, which
provides that the advisory opinion “may justify an award of
attorney fees against the condemning entity . . . only if the court
finds that the condemning entity: (a) does not have a colorable
claim or defense for the entity’s actions; and (b) continued
occupancy without payment of just compensation and in
disregard of the advisory opinion.” Id. § 13-43-205(3). To take
advantage of this attorney fee provision, a land owner would
necessarily be dueling with the condemning authority in district
court. This strengthens our view that the Legislature did not
intend subsection (12) to be triggered unless the issue of an
advisory opinion was “listed as a cause of action in litigation”
originating in district court.
¶33 After reviewing the plain language of subsection (12) in
light of its surrounding context, we conclude that the
Checkettses challenge to the City’s notice of violation did not
trigger subsection (12). We therefore vacate the district court’s
20160570-CA 18 2018 UT App 48Checketts v. Providence City
award of attorney fees and costs to the City and remand with the
direction that those sums be fully refunded to the Checkettses.
CONCLUSION
¶34 For the foregoing reasons, we affirm the district court’s
decisions denying summary judgment to the Checkettses and
granting it to the City. However, we vacate the court’s award of
attorney fees and costs—except, of course, to the extent that
taxable costs of the action were due to the City as the prevailing
party—and remand for the limited purpose of overseeing the
Checkettses’ full refund of the fees they paid under protest. 7
7. We deny the City’s request for an attorney fee award under
rule 33 of the Utah Rules of Appellate Procedure. See Utah R.
App. P. 33(a), (b). We recognize that the Checkettses plainly
jumped the gun when filing their previous appeal, for which
they were duly sanctioned, see Checketts v. Providence City, 2016
UT App 161, 381 P.3d 1142, but this appeal was on a much
firmer legal footing and, indeed, the Checkettses prevailed on
one of their issues.
20160570-CA 19 2018 UT App 48