Northern Monticello Alliance v. San Juan County , 2023 UT App 18 ( 2023 )

2023 UT App 18THE UTAH COURT OF APPEALS
NORTHERN MONTICELLO ALLIANCE LLC,
Appellant,
v.
SAN JUAN COUNTY, SAN JUAN COUNTY COMMISSION, SUSTAINABLE
POWER GROUP LLC, AND LATIGO WIND PARK LLC,
Appellees.
Opinion
No. 20180225-CA
Filed February 16, 2023
Seventh District Court, Monticello Department
The Honorable Lyle R. Anderson
No. 170700006
J. Craig Smith, Jennie B. Garner, and Jay L. Springer,
Attorneys for Appellant
Barton H. Kunz II, Attorney for Appellees San Juan
County and San Juan County Commission
Paul W. Shakespear, Elizabeth M. Brereton, and
Annika L. Jones, Attorneys for Appellees Sustainable
Power Group LLC and Latigo Wind Park LLC
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES GREGORY K. ORME and MICHELE M.
CHRISTIANSEN FORSTER concurred.
MORTENSEN, Judge:
¶1 We again consider the appeal from Northern Monticello
Alliance LLC (NMA) of the district court’s grant of summary
judgment in favor of Appellees. We conclude that the district
court erred in deciding that the decision under review was
supported by substantial evidence, and we reverse. The San Juan
County Zoning and Planning Commission (the Planning
North Monticello Alliance v. San Juan County
Commission), which originally decided against revoking the
conditional use permit at issue, was the only body authorized to
accept evidence and make factual findings. It failed to produce
written findings sufficient for appellate review, so its decision was
unsupported by substantial evidence and was, therefore,
arbitrary and capricious. Thus, even though this case has since
involved a series of appeals that our supreme court aptly called
“curiously complex,” Northern Monticello All., LLC v. San Juan
County, 2022 UT 10, ¶ 1, 506 P.3d 593, this initial fatal flaw has
rendered subsequent decisions similarly arbitrary and capricious.
BACKGROUND 1
¶2 In 2012, the Planning Commission issued a conditional use
permit (CUP) authorizing construction of a wind farm to Wasatch
Wind Intermountain LLC. Northern Monticello All., LLC v. San Juan
County, 2022 UT 10, ¶ 3, 506 P.3d 593. Soon after, the Planning
Commission amended the CUP at a public hearing. Id. While no
written document memorialized the amended terms, the
mitigation conditions “‘gleaned from the minutes and transcript’
of the public hearing,” id. ¶ 3 n.3, required the CUP holder to
“incorporate as much flicker, light, sound, mitigation as possible,
and to meet all industry standards of those challenges,” id. ¶ 3. It
also “reiterat[ed] that all and any new land purchase lease deals
be in writing for any contiguous and affected landowners” and
that “[a]ny mitigation and standards and conditions of this CUP
must be met by any and all project development people, be they
owners now or in the future, and all of these be met at the time of
1. NMA appeals the district court’s grant of summary judgment
to Appellees. Accordingly, we recite the facts in the light most
favorable to NMA, the nonmoving party. Judge v. Saltz Plastic
Surgery, PC, 2016 UT 7, ¶ 3 n.1, 367 P.3d 1006; see also Fire Ins. Exch.
v. Oltmanns, 2018 UT 10, ¶ 7, 416 P.3d 1148.
20180225-CA 2 2023 UT App 18North Monticello Alliance v. San Juan County
building permit issuance.” 2 Id. Later, Wasatch Wind sold the wind
park to Sustainable Power Group LLC (sPower). 3 Id. ¶ 3.
¶3 In August 2015, NMA complained to the Planning
Commission that sPower was violating the CUP. Id. ¶ 4. The
Planning Commission voted to hold a hearing to consider
revocation. Id. NMA attended the hearing, but only sPower was
permitted to present evidence. Id. The minutes of the meeting
indicate, “Studies were done relating to sound, flicker, and light.
Thresholds were determined and affected lands were indicated.
Mitigation for lands affected were determined and compensation
amounts decided.” The Planning Commission voted to “table a
decision on the issue until any other pertinent information is
reviewed.”
¶4 At a follow-up meeting five days later, the Planning
Commission voted not to revoke the CUP. The Planning
Commission did not produce any written findings. The minutes
from the meeting note, “The other issue [up for vote was] whether
or not any mitigation for sound, light, and flicker had taken place.
This is a more subjective issue and not black and white. It was
determined that mitigation had taken place as much as possible
at this time.”
2. The Utah Supreme Court rejected NMA’s assertion that the
amended CUP also required the holder to purchase NMA
property or pay mitigation payments, finding that this claim was
unsupported by the record. See Northern Monticello All., LLC v. San
Juan County, 2022 UT 10, ¶ 3 n.4, 506 P.3d 593.
3. Technically, the CUP was issued to Latigo Wind Park, which is
now a wholly owned subsidiary of sPower. Id. ¶ 4 n.5. We refer to
Latigo Wind Park collectively with Sustainable Power Group as
sPower.
20180225-CA 3 2023 UT App 18North Monticello Alliance v. San Juan County
¶5 NMA appealed this decision to the San Juan County
Commission (the County Commission). Id. ¶ 5. The Planning
Commission provided a written brief to the County Commission
stating that it had held the two meetings and “decided by
unanimous vote that as much mitigation as possible had occurred
under the conditions it set for the project in 2012,” referencing the
minutes of the meetings. The brief did not include any findings of
fact or conclusions of law.
¶6 The County Commission held a hearing and issued a
written decision (Written Decision) reversing the decision and
remanding the matter to the Planning Commission, stating that
there was insufficient evidence that sPower had satisfied the
conditions of the CUP. Id. The next day, sPower sent a letter to the
County Commission indicating that sPower would suffer
damages of more than one hundred million dollars if the County
Commission did not swiftly reconsider its decision. sPower did
not send NMA a copy of this letter. Id. The County Commission
held a closed meeting to consider the letter and issued an
amendment to its written decision (Amended Decision) reversing
course and upholding the Planning Commission’s decision not to
revoke the CUP. Id. The County Commission indicated that it had,
in fact, received evidence from sPower prior to issuing its Written
Decision that it had inadvertently failed to consider—evidence
that had been purportedly presented to the Planning
Commission. 4
4. In its original Written Decision, the County Commission stated
that it had “been presented with no evidence in this appeal that
[sPower] has worked to mitigate sound, light, and flicker other
than [sPower’s] representation that it has done studies and
mitigated effects that exceeded the thresholds set. [Is this truly all
the evidence there is in the record on appeal?].” (Final brackets in
original.) Then in its Amended Decision, the County Commission
(continued…)
20180225-CA 4 2023 UT App 18North Monticello Alliance v. San Juan County
¶7 NMA appealed the County Commission’s Amended
Decision to the district court (NMA I). Id. ¶ 6. The district court
concluded that the Amended Decision was supported by
substantial evidence but remanded the case to the County
Commission to correct due process violations by giving NMA a
chance to be heard and respond to sPower’s letter. Id. The County
Commission heard from both NMA and sPower on remand. Id. In
its subsequent decision (Remand Decision), the County
Commission again upheld the Planning Commission’s decision
not to revoke the CUP. Id.
¶8 NMA next appealed the County Commission’s Remand
Decision to the district court (this case—NMA II). Id. ¶ 7. Both
parties moved for summary judgment, and the district court
granted the County’s motion. Id. The district court found that the
due process violations it had earlier identified had been remedied.
Id. It also concluded that its finding on substantial evidence in
NMA I still applied and thus the County Commission’s decision
to uphold the Planning Commission’s decision against revocation
was supported by substantial evidence. Id.
¶9 NMA then appealed to this court. Northern Monticello All.
LLC v. San Juan County, 2020 UT App 79, 468 P.3d 537, rev’d, 2022
UT 10. We reversed the grant of summary judgment and
remanded to the district court based on our determination that
stated, “Upon further review of the record we conclude that this
statement was in error. In fact, sPower gave us each two three-
ring binders of information it had provided to the Planning
Commission.” Similarly, the County Commission made its
decision on remand “[i]n reliance on those documents,” though it
cited “different recollections and disagreement” about when the
documents were provided to it. NMA alleges that some evidence
presented to the County Commission, and which it relied on, was
new evidence not presented to the Planning Commission. We
discuss this issue further below, see infra note 9.
20180225-CA 5 2023 UT App 18North Monticello Alliance v. San Juan County
NMA members had due process rights that had been violated. Id.
¶ 20. Our majority opinion held that these due process rights
flowed from the relevant statutes, 5 id. ¶ 17, while Judge
Christiansen Forster concurred in the result but concluded that
the due process rights derived from a protectable property
interest in enforcement of the CUP’s mitigation conditions, id.
¶¶ 21, 27 (Christiansen Forster, J., concurring).
¶10 The Utah Supreme Court then granted certiorari and
ultimately reversed. Northern Monticello All., 2022 UT 10. The
court held that NMA did not have a right to present evidence in
the Planning Commission’s revocation hearing. 6 Id. ¶ 17. The
5. These statutes include the County Land Use, Development, and
Management Act (CLUDMA), see generally Utah Code §§ 17-27a-
101 to -1104, and the relevant sections of the San Juan County
Zoning Ordinance, see generally San Juan County, Utah, Zoning
Ordinance (2011), https://sanjuancounty.org/sites/default/files/fil
eattachments/planning/page/3381/zoningordinance092011.pdf
[https://perma.cc/M3RX-CDJ9].
6. The court also held that NMA had a right to appeal and rejected
Appellees’ argument that the decision against revocation was not
“administering or interpreting” a land use ordinance. See Northern
Monticello All., 2022 UT 10, ¶¶ 18–20 (“The decision was
administering the section of the [San Juan County] Zoning
Ordinance regarding revocation of CUPs.”). Appellees make a
similar argument here, asserting lack of subject matter jurisdiction
through a Motion for Summary Disposition. They note that Utah
Code section 17-27a-707(4) restricts appeals to “[o]nly those
decisions in which a land use authority has applied a land use
ordinance to a particular application, person, or parcel” and claim
that the land use authority has not “applied” an ordinance in
deciding against revocation. See Utah Code § 17-27a-707(4) (2015).
We disagree. Applying a land use ordinance includes exercising
(continued…)
20180225-CA 6 2023 UT App 18North Monticello Alliance v. San Juan County
court reached its conclusion by reasoning that “the Utah Code, the
San Juan County Zoning Ordinance[,] . . . [and] the conditions in
the CUP itself” do not “provide NMA with such a right, nor do
they create a protected interest in the enforcement of the CUP.”
Id. ¶ 2. The court remanded the case to this court “for further
consideration of any remaining issues properly raised before it.”
Id. ¶ 41. The supreme court’s decision left unresolved the
questions of whether the district court erred in (1) not ruling that
the County Commission’s Remand Decision was arbitrary and
capricious if it was not supported by substantial evidence due to
the Planning Commission’s failure to issue written findings and
(2) holding that the County Commission was authorized to
reconsider its own earlier decision.
ISSUE AND STANDARD OF REVIEW
¶11 NMA argues that the district court erred in granting
summary judgment to Appellees. “We review a district court’s
decision to grant summary judgment for correctness, granting no
deference to the district court’s conclusions.” Gillmor v. Summit
County, 2010 UT 69, ¶ 16, 246 P.3d 102 (cleaned up). And as we
ultimately evaluate an administrative decision, we “afford no
deference to the intermediate court’s decision and apply the
statutorily defined standard to determine whether the court
the authorized ability to decide on revocation of a CUP—whether
the land use authority ultimately revokes or not. Specifically, San
Juan County Zoning Ordinance section 6-10 authorizes revocation
and describes the revocation hearing process. See San Juan
County, Utah, Zoning Ordinance § 6-10 (2011). The Planning
Commission applied this ordinance by holding a hearing and
deciding against revocation. Therefore, the County Commission
had subject matter jurisdiction over this matter and this court does
too. See Northern Monticello All., 2022 UT 10, ¶ 35 n.12 (clearly
contemplating appeal of a decision not to revoke or enforce).
20180225-CA 7 2023 UT App 18North Monticello Alliance v. San Juan County
correctly determined whether the administrative decision was
arbitrary, capricious, or illegal.” McElhaney v. City of Moab, 2017
UT 65, ¶ 26, 423 P.3d 1284.
ANALYSIS
¶12 Two issues remain unresolved. First, NMA asserts that the
district court wrongly concluded that the County Commission’s
decision, which upheld the Planning Commission’s decision not
to revoke the CUP, was supported by substantial evidence
because the Planning Commission’s decision failed to include
written findings or conclusions. NMA maintains that this failure
rendered that decision—and, accordingly, the County
Commission’s decision—inherently arbitrary and capricious.
Second, NMA argues that the County Commission could not
properly reconsider its own final decision as no statute or
ordinance authorized such action. We do not reach this issue
because we reverse and remand to the district court on the first
issue.
¶13 NMA argues that the district court’s grant of summary
judgment was erroneous because the district court could not
conclude as a matter of law that the County Commission’s
decision was supported by substantial evidence since both tiers of
appellate review were poisoned by the lack of adequate written
findings from the Planning Commission. 7 We agree. As discussed
7. Appellees argue that this issue was not properly preserved. We
disagree. Appellees assert that NMA failed to timely object to the
adequacy of the Planning Commission’s “report”—referring to
the Planning Commission’s emailed brief to the County
Commission on appeal. However, this brief came after NMA had
begun its appeal and was not a published report—NMA did not
fail to preserve this claim by not objecting to it. Instead, NMA
appealed to the County Commission and “challenge[d] the
(continued…)
20180225-CA 8 2023 UT App 18North Monticello Alliance v. San Juan County
below, the Planning Commission was the only body authorized
to accept evidence and make factual findings. The County
Commission and district court were then restricted in their
reviews to examining the Planning Commission’s record and
determining whether its findings and conclusions were
supported by substantial evidence. Because the Planning
Commission failed to provide written findings adequate for
appellate review, its decision and the County Commission’s
decisions upholding it were arbitrary and capricious, and the
district court was wrong to conclude otherwise.
I. The Scope and Standard of Review
¶14 As an initial matter, Appellees are correct that the decision
we are reviewing is the district court’s. “[I]n the appeal of an
administrative order, we review the intermediate court’s decision.
We afford no deference to the intermediate court’s decision and
apply the statutorily defined standard to determine whether the
[Planning] Commission’s decision[,] . . . asserting that it was not
supported by substantial evidence.” And since then, both of
NMA’s appeals to the district court have claimed that the County
Commission’s decisions were arbitrary and capricious as
unsupported by substantial evidence. Along the way, the
supreme court published its decision in McElhaney v. City of Moab,
2017 UT 65, 423 P.3d 1284, clarifying that meeting the substantial
evidence standard requires written findings and conclusions. See
id. ¶ 41. So our review of whether the district court was correct in
concluding that the County Commission’s decision was
supported by substantial evidence is guided by this clarification.
And because the County Commission erroneously concluded that
the Planning Commission’s decision was supported by
substantial evidence, we apply this requirement clarified in
McElhaney to the Planning Commission. Accordingly, NMA’s
argument relying on McElhaney is not a new argument that NMA
has made in this appeal.
20180225-CA 9 2023 UT App 18North Monticello Alliance v. San Juan County
court correctly determined whether the administrative decision
was arbitrary, capricious, or illegal.” McElhaney v. City of Moab,
2017 UT 65, ¶ 26, 423 P.3d 1284.
¶15 In McElhaney, homeowners appealed a decision of the
Moab City Council denying them “a conditional use permit to
operate a bed and breakfast in their residential neighborhood.” Id.
¶ 1. The city council members had orally announced their votes
and “explained the rationale behind [each] vote,” but “[t]he
Council did not make explicit findings on whether the proposal
met the requirements” of the applicable municipal code. Id. ¶ 7.
The homeowners appealed to the district court, which overturned
the city council’s decision. Id. ¶¶ 12–13. On the city council’s
subsequent appeal, the supreme court addressed the question of
whether the court was reviewing the decision of the
administrative agency or of the lower court, acknowledging that
there were “two ways in which our case law can be read.” Id. ¶ 17.
The court clarified that it “review[s] the intermediate court’s
decision” but “gives no presumption of correctness to the
intervening court decision, since the lower court’s review of the
administrative record is not more advantaged than the appellate
court’s review.” Id. ¶¶ 18, 26 (cleaned up).
¶16 Ultimately, we review the same level of decision the
McElhaney court did: the district court’s. The district court was the
intermediate court here, and the district court was not more
advantaged than we are in reviewing the administrative decision.
Therefore, we determine whether the district court erred in
granting summary judgment to Appellees and, like in McElhaney,
we give no deference to the district court’s ruling. “A court may
grant summary judgment only if . . . there is no genuine issue as
to any material fact and . . . the moving party is entitled to a
judgment as a matter of law.” Robinson v. Jones Waldo Holbrook
& McDonough, PC, 2016 UT App 34, ¶ 24, 369 P.3d 119 (cleaned
up).
20180225-CA 10 2023 UT App 18North Monticello Alliance v. San Juan County
¶17 The district court erred in granting summary judgment to
Appellees because only the Planning Commission was authorized
to take evidence and find facts in this case, and the Planning
Commission’s failure to produce adequate written findings was a
fatal flaw that rendered the Remand Decision arbitrary and
capricious. The relevant statutes are clear that the scope of review
on appeal—for both the district court and the County
Commission—was restricted to the record and to the factual
findings made by the Planning Commission; in other words, the
Planning Commission is the only entity in this process that was
authorized to take evidence and make factual findings. Because
the Planning Commission never made factual findings, the
County Commission could not properly review them. Therefore,
its decision, which upheld the Planning Commission’s decision,
was inherently arbitrary and capricious. See Utah Code §§ 17-27a-
801(3), -707 (2015); San Juan County, Utah, Zoning Ordinance § 6-
10 (2011).
¶18 First, the district court was limited when reviewing the
County Commission’s Remand Decision to “(i) presum[ing] that
a decision, ordinance, or regulation made under the authority of
[CLUDMA] is valid; and (ii) determin[ing] only whether or not the
decision, ordinance, or regulation is arbitrary, capricious, or
illegal.” Utah Code § 17-27a-801(3)(a) (2015) (emphasis added). 8
Moreover, “[a] final decision of a land use authority or an appeal
authority is valid if the decision is supported by substantial
8. This version of the statute was in effect at the time NMA filed
its second appeal with the district court on March 23, 2017. The
current version states that “[a] court shall presume that a final
decision of a land use authority or an appeal authority is valid
unless the land use decision is: (i) arbitrary and capricious; or (ii)
illegal.” Utah Code § 17-27a-801(3)(b). Subsection (c)(i) indicates
that “[a] land use decision is arbitrary and capricious if the land
use decision is not supported by substantial evidence in the
record.” Id. § 17-27a-801(3)(c)(i).
20180225-CA 11 2023 UT App 18North Monticello Alliance v. San Juan County
evidence in the record and is not arbitrary, capricious, or illegal.”
Id. § 17-27a-801(3)(c) (emphasis added). Therefore, the district
court’s review was limited to the record; it was not able to accept
new evidence or make factual findings.
¶19 The County Commission’s review was similarly limited.
“A county may, by ordinance, designate the standard of review
for appeals of land use authority decisions.” Id. § 17-27a-707(1)
(2015). “If the county fails to designate a standard of review of
factual matters, the appeal authority shall review the matter de
novo.” Id. § 17-27a-707(2). San Juan County Zoning Ordinance
section 2-2(2)(e) declares that “[t]he Appeal Authority shall[,]
upon appeal, presume that the decision applying the land use
ordinance is valid and determine only whether or not the decision
is arbitrary, capricious, or illegal.” (Emphasis added.) Therefore,
San Juan County specified a standard of review that was
deferential to the Planning Commission. Because the County
Commission could “determine only whether or not the decision
[was] arbitrary, capricious, or illegal,” it was also not authorized
to consider evidence beyond the record or to make its own factual
findings. As neither the district court nor the County Commission
could do so, both bodies necessarily were limited to the record
that had been before the Planning Commission and to the factual
findings made by the Planning Commission—of which there were
none.
¶20 Both the district court and the County Commission did, in
fact, give deference to the decision below and purport to limit
their review to the record. 9 The district court concluded that the
9. As discussed above, see supra note 4, it appears that the Planning
Commission did not transmit the evidence it relied on in a record
to the County Commission. This uncertainty about the record is
highly problematic given that the County Commission was, by
ordinance, limited in its review to the record. The County
(continued…)
20180225-CA 12 2023 UT App 18North Monticello Alliance v. San Juan County
Remand Decision was supported by substantial evidence by
incorporating its reasoning in NMA I, which stated,
Under Utah Code § 17-27a-801, the district court has
authority to reverse the decision of a land use
authority if the decision is “arbitrary, capricious, or
illegal.” The court is required to presume that the
decision is valid[,] and its review is limited to the
record provided to it.
A decision is arbitrary and capricious when
it is not supported by substantial evidence. The
County’s decision to reverse its earlier order was
based on its failure to consider “two three ring
binders of information” on [sPower’s] mitigation
efforts. In these binders, the County found sound,
light, and flicker studies that it relied on to conclude
that [sPower’s] mitigation efforts met the
requirements of the permit. Accordingly, the court
cannot find that the County’s decision was
unsupported by substantial evidence.
(Footnotes omitted.) It is clear from this that the district court
endeavored to limit its review to the record provided to it by the
County Commission and deferred to that body’s conclusion that
its decision was supported by the evidence.
¶21 Likewise, the County Commission stated in its Remand
Decision that its review had been limited to the record and was
Commission apparently did not recognize any of the evidence as
new evidence (referring to the binders as “information [sPower]
had provided to the Planning Commission” and “[e]vidence of
[m]itigation [a]vailable in the [r]ecord”). But if any evidence given
to the County Commission was new, the County Commission was
not authorized to take such evidence, and remand would still be
appropriate and necessary.
20180225-CA 13 2023 UT App 18North Monticello Alliance v. San Juan County
deferential to the Planning Commission. Although the County
Commission on remand “requested supplemental briefs from
both sPower and NMA . . . and heard arguments from attorneys
for both [parties],” it “instructed the parties on rehearing not to
present [it] with any new evidence not already in the record.” The
County Commission explained its rationale:
We did so because the purpose of our rehearing was
solely to consider sPower’s request for
reconsideration based upon its complaint that,
contrary to our finding, it had indeed provided
evidence of mitigation beyond its bare
representations. The parties generally complied
with our direction. Each party presented us with a
handout during the rehearing. We consider those
demonstrative and do not otherwise rely on them as
a basis for our decision. Objections were also raised
to statements made during the hearing as outside
the record, and we have tried to avoid such
statements in rendering this decision.
Therefore, each relevant stage of review was restricted to the
record before the Planning Commission and has been deferential
to the Planning Commission’s decision. Both the district court and
the County Commission have limited their reviews to
determining whether the decision below was arbitrary and
capricious. However, stating that a court or appeal authority is
limiting its review to the evidence below makes sense only if that
body is comparing the evidence in the record to actual findings
made by a body empowered to make those findings. Without
findings against which to judge whether substantial evidence
exists to support them, a review of the evidence is—in reality—a
de novo review. Because the applicable standard requires a
decision to be supported by substantial evidence (discussed
below) and because the Planning Commission—the only body
authorized to accept evidence—did not produce findings and
20180225-CA 14 2023 UT App 18North Monticello Alliance v. San Juan County
conclusions capable of meeting this standard, the chain of
deferential review contained a fatal flaw.
II. Substantial Evidence
¶22 “A local government’s land use decision . . . is arbitrary and
capricious . . . if it is not supported by substantial evidence.”
Uintah Mountain RTC, LLC v. Duchesne County, 2005 UT App 565,
¶ 19, 127 P.3d 1270 (cleaned up); see also Springville Citizens for a
Better Cmty. v. City of Springville, 1999 UT 25, ¶ 24, 979 P.2d 332(“A municipality’s land use decision is arbitrary and capricious if
it is not supported by substantial evidence.”).
¶23 In McElhaney, the supreme court determined that the
decision of the land use authority was not supported by
substantial evidence because that body did not produce written
findings of fact. McElhaney v. City of Moab, 2017 UT 65, ¶ 41, 423
P.3d 1284. The city council “concluded that the proposed . . . use
did not meet the criteria set forth in Moab’s Municipal Code but
prepared no written findings of fact.” Id. ¶ 39. While “[t]he district
court noted, and indeed, complained about the absence of
findings,” rather than remand to the city council, it “valiantly
attempted to fill the void by parsing the comments neighbors
made at [c]ouncil meetings.” Id. ¶ 40. The supreme court
“commend[ed] the district court” for this effort but found error
because “it was the [c]ouncil’s responsibility to define the basis
for its decision, not the district court’s.” Id. The supreme court
stated,
Without sufficiently detailed findings that disclose
the steps by which an administrative agency reaches
its ultimate factual conclusions, this court cannot
perform its duty of reviewing the order in
accordance with established legal principles and of
protecting the parties and the public from arbitrary
and capricious administrative action. On appeal, a
court can perform its duty only if the [land use
20180225-CA 15 2023 UT App 18North Monticello Alliance v. San Juan County
authority] has created findings revealing the
evidence upon which it relies, the law upon which
it relies, and its interpretation of the law.
Id. ¶ 36 (cleaned up).
¶24 While at first glance it appears that McElhaney is
distinguishable from this case because here there was an
additional layer of appellate review (the County Commission),
McElhaney applies across the board. As discussed above, only the
Planning Commission was authorized by statute and ordinance
to accept evidence and make factual findings. Therefore, the
County Commission’s decision necessarily must rely on the
Planning Commission’s factfinding, and we must look to the
Planning Commission’s findings in our substantial evidence
analysis. Appellees state that “McElhaney stands for the
unsurprising conclusion that, in order for a district court to
effectively review a land use authority’s decision, the land use
authority must transmit sufficient findings of fact and conclusions
of law to the district court to enable that review.” But our
substantial evidence analysis must consider the Planning
Commission’s decision because the County Commission here
acted as the appeal authority—not the land use authority. Like in
McElhaney, the land use authority made no written findings. See
id. ¶ 39. Also like in McElhaney, the appeal authority recognized
as much. See id. ¶ 40. So, just as it did in McElhaney, this deficiency
prevented appropriate appellate review by the appeal authority—
here by both appeal authorities, namely the County Commission
and the district court. See id. ¶¶ 40–41; see also Davis County v.
Clearfield City, 756 P.2d 704, 711 (Utah Ct. App. 1988) (discussing
both a planning commission land use decision and its appeal to
the city council where “the [p]lanning [c]ommission’s refusal to
furnish written findings, or at least provide the basis for its
decision so that [the applicant] could intelligently respond on
appeal to the [c]ity [c]ouncil, tended to suggest there was no
rational basis for the [p]lanning [c]ommission’s decision”).
20180225-CA 16 2023 UT App 18North Monticello Alliance v. San Juan County
¶25 Appellees argue that the Planning Commission’s emailed
brief to the County Commission qualifies as sufficient written
findings, but the brief was emailed from the Planning
Commission to the County Commission after NMA’s appeal had
begun and was not published or otherwise clearly available to
NMA to defend against in its appeal. Even if the brief could
qualify as a source for the Planning Commission’s written
findings, the “findings” therein are clearly inadequate. The brief
states,
The [Planning Commission] also decided that
mitigation had been addressed as much as could be
possible at this time.
....
As stated above, at the September 9, 2015 Planning
Commission meeting, the [Planning Commission]
received information and evidence concerning the
Permittees efforts to mitigate the harm of its project
on others. In the Permittee’s presentation, the
[Planning Commission] received studies concerning
sound, flicker, and light. It received information on
thresholds and how they were determined and
what neighboring lands were affected. Exhibit 2.
Please see attached Minutes San Juan County
Planning and Zoning September 9, 2015. On
September 14, 2015, the [Planning Commission]
decided by unanimous vote that as much mitigation
as possible had occurred under the conditions it set
for the project in 2012. Exhibit 3. Please see attached
Minutes San Juan County Planning and Zoning
September 14, 2015.
The referenced minutes are no more detailed. The minutes from
September 9, 2015, indicate, “Studies were done relating to sound,
flicker, and light. Thresholds were determined and affected lands
20180225-CA 17 2023 UT App 18North Monticello Alliance v. San Juan County
were indicated. Mitigation for lands affected were determined
and compensation amounts decided.” And the minutes from
September 14, 2015, state, “The other issue was whether any
mitigation for sound, light, and flicker had taken place. This is a
more subjective issue and not black and white. It was determined
that mitigation had taken place as much as possible at this time.”
These cursory declarations are wholly inadequate. They certainly
fall well short of being “sufficiently detailed findings that disclose
the steps by which an administrative agency reache[d] its ultimate
factual conclusions.” McElhaney, 2017 UT 65, ¶ 36 (cleaned up).
Accordingly, neither the County Commission nor the district
court could “perform its duty of reviewing the [administrative
decision] in accordance with established legal principles and of
protecting the parties and the public from arbitrary and
capricious administrative action.” Id. (cleaned up).
¶26 And, like in McElhaney, this court cannot rely on findings
drafted in the course of an administrative appeal as a substitute
for the required findings of the land use authority.10 While the
County Commission in its Amended Decision attempted to
identify the evidence it relied on in determining that the Planning
Commission’s decision was supported by substantial evidence,
this effort cannot rehabilitate the Planning Commission’s
10. Appellees assert that NMA failed to argue “that the [C]ounty
[C]ommission’s written decisions were inadequate to allow the
district court’s substantial evidence review,” but they are
incorrect. NMA states that “[e]ven if the [d]istrict [c]ourt or the
County Commission were entitled to correct the insufficiencies in
the [Planning Commission’s] decision, they failed to do so. The
Remand Decision is devoid of any findings of fact or rationale for
upholding the [Planning Commission’s] decision.” NMA has
consistently argued that the lack of written findings and
conclusions from the Planning Commission has thwarted an
appropriate substantial evidence review at both the County
Commission and district court levels. NMA is right.
20180225-CA 18 2023 UT App 18North Monticello Alliance v. San Juan County
deficiency because the County Commission was not permitted to
perform factfinding. And besides, the Amended Decision
explicitly relied on the Planning Commission’s assumed,
unwritten findings concerning sound mitigation efforts, stating,
“[W]e defer to the Planning Commission’s decision that the
industry standards and EPA standards for exterior noise is a
reasonable threshold under the Latigo CUP and that it was met.”
Furthermore, the Amended Decision was ultimately vacated, and
the Remand Decision contains no attempt to provide findings of
fact, merely concluding that it “cannot say that the Planning
Commission’s decision not to revoke the Latigo CUP lacked
substantial evidence . . . [i]n light of the record evidence.” This,
too, fails to reveal “the evidence upon which it relies, the law upon
which it relies, and its interpretation of the law” required for a
land use authority’s findings. Id. (cleaned up). Therefore, the
County Commission’s decisions lacked substantial evidence, and
the district court erred in concluding otherwise. Accordingly, the
district court’s grant of summary judgment is erroneous because
the lack of adequate written findings renders the County
Commission’s decision arbitrary and capricious and,
consequently, Appellees are not entitled to judgment as a matter
of law. 11
11. NMA asserts that the County Commission erred in failing to
consider evidence that NMA provided on appeal and that the
district court “made no effort to consider evidence that ‘fairly
detracted’ from sPower’s position, in contravention of Utah’s
substantial evidence standard.” Because we are reversing on other
grounds, we need not address this argument. But it is worth
noting that because both the County Commission and the district
court are limited in their review to the record of the Planning
Commission, any evidence NMA has submitted on appeal was
outside the scope of review. Therefore, neither body erred in
failing to consider evidence NMA offered for the first time on
(continued…)
20180225-CA 19 2023 UT App 18North Monticello Alliance v. San Juan County
CONCLUSION
¶27 Ultimately, the County Commission’s Remand Decision
was not supported by substantial evidence and was therefore
arbitrary and capricious. Accordingly, the district court erred in
granting summary judgment to Appellees. We reverse the
summary judgment and remand to the district court for further
proceedings consistent with this opinion.
appeal. Additionally, the supreme court clarified that while
“NMA had a right to appeal the Planning Commission’s decision
not to revoke the CUP,” this did not “necessarily provide[] it with
the right to participate in the revocation hearing.” Northern
Monticello All., 2022 UT 10, ¶ 2. Similarly, our decision does not
confer that right. Even if the Planning Commission reconsiders
revocation in a new hearing, NMA does not necessarily have a
right to present evidence therein.
20180225-CA 20 2023 UT App 18