Carlsen v. Board of Adjustment of the City of Smithfield, 287 P.3d 440

In 2009, the Smiths petitioned the Board of Adjustment of Smithfield City to recognize an existing nonconforming animal rights use on the Property under Smithfield City Code § 17.16.010.
The Property was originally zoned agricultural and was rezoned residential in 1970; the Smiths contended cattle had been kept there since 1970, constituting a continuing nonconforming use under § 17.16.060.
The Board found the Smiths had maintained an existing nonconforming animal rights use on the Property for at least thirty days per calendar year and for two head of cattle.
Carlsen challenged the Board’s decision in district court, which upheld the Board; Carlsen then sought appellate review.
The property history involves transfers between the Erickson family, the Jeppesen family, and the Smiths, with parcels 0012, 0015, 0018, and 0019 involved; the Board’s focus was on parcel 0018 (the portion once 0015).
On appeal, Carlsen argued several legal points, but the court reviewed whether the Board’s decision was supported by substantial evidence and whether procedural/preservation issues defeated review.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Substantial evidence supports the Board’s decision	Carlsen asserts insufficient evidence for a two-cattle nonconforming use.	Smiths' evidence, including letters and neighbor testimony, supports ongoing use since 1970.	Yes; substantial evidence supports the Board's recognition.
Counting cattle and calf exclusion rules	Two-head count may be invalid due to calves or counting rules	Code allows including offspring up to six months and counts overall cattle; no error in counting two cattle.	Yes; two cattle properly recognized under the ordinance.
Bias of a Board member	A member appeared biased due to personal dealings with a witness	Issue was not preserved; statements do not show disqualifying bias; briefing inadequate.	No reversible error; issue not preserved or adequately briefed.
Intervention of right by Smiths	Smiths' intervention was untimely and prejudicial to Carlsen	Intervention timely under the circumstances; district court did not abuse discretion.	No abuse; intervention timely and properly granted.

Patterson v. Utah County Bd. of Adjustment, 893 P.2d 602 (Utah Ct. App. 1995) (review limited to Board record; substantial evidence standard governs)
Grace Drilling Co. v. Board of Review of Indus. Comm’n, 776 P.2d 63 (Utah Ct. App. 1989) (board’s resolution of conflicting evidence within its province)
First Nat’l Bank of Boston v. County Bd. of Equalization, 799 P.2d 1163 (Utah 1990) (not weighing evidence anew; confirm Board’s reasonable conclusions)
Heinecke v. Department of Commerce Div. of Occupations & Prof’l Licensing, 810 P.2d 459 (Utah Ct. App. 1991) (preserve and marshal evidence; appellate review of evidence)
Dairy Prod. Servs., Inc. v. City of Wellsville, 2000 UT 81 (Utah) (due process; bias concerns require preserved challenge)
Republic Ins. Grp. v. Doman, 774 P.2d 1130 (Utah 1989) (timeliness and discretion in intervention)
V‑1 Oil Co. v. Department of Envtl. Quality, 939 P.2d 1192 (Utah 1997) (disqualification standard for administrative bias; due process)