Kilgore Cos. v. Utah Cnty. Bd. of Adjustment
2019 UT App 20
| Utah Ct. App. | 2019Background
- Kilgore operates a licensed asphalt batch plant in a mining and grazing zone where operation is a permitted use; structures are generally limited to 40 feet unless a conditional use permit (CUP) is granted for greater height.
- Kilgore previously obtained approval for three 100-foot silos and thereafter applied for a CUP to add two 65-foot silos; the Board considered only the incremental 25 feet above the 40-foot permitted height.
- Public commenters and nearby residents raised concerns about property values, traffic, road safety, light and dust emissions, and health effects; the Board asked Kilgore for more information relating specifically to the incremental height.
- The County Zoning Administrator recommended approval, finding the additional height would not degrade public health, safety, or welfare and would have no adverse effect on property values; Kilgore submitted testimony and an appraiser’s report concluding negligible visual impact.
- The Board denied the application, finding the additional height degraded adjacent property values and might degrade public health, safety, or welfare; Kilgore sought judicial review and the district court reversed, ordering the Board to approve the CUP.
- On appeal the Utah Court of Appeals affirmed: it held Kilgore met its burden to prove, by a preponderance of the evidence, that the 65-foot silos would not negatively affect public health, safety, welfare, or property values, and the Board’s denial lacked substantial evidence.
Issues
| Issue | Plaintiff's Argument (Kilgore) | Defendant's Argument (Utah County) | Held |
|---|---|---|---|
| Whether Kilgore met its burden to show the 65-foot silos would not degrade public health, safety, or welfare | Kilgore: incremental height does not change operations, production, truck traffic, or emissions; taller silos reduce material handling and could improve air impacts; could instead install additional 40-ft silos | County: taller silos could compound emissions and harm health; public testimony reported health and nuisance concerns | Held: Kilgore satisfied its burden by a preponderance; Board ignored competent, uncontradicted evidence and failed to show a causal link to height |
| Whether Kilgore met its burden to show the 65-foot silos would not adversely affect local property values | Kilgore: appraiser found inconsequential visual impact given existing 100-ft silos; closest residence >½ mile away; visual impact mitigable by color | County: residents testified property values fell and feared taller silos would worsen values | Held: County offered no evidence tying incremental height to property-value decline; Kilgore met its burden |
| Whether the Board’s denial was supported by substantial evidence | Kilgore: Board relied on general complaints about plant operations, not on evidence specific to the height increase | County: public testimony and concerns constitute substantial evidence | Held: Board decision was not supported by substantial evidence and thus was arbitrary and capricious |
| Whether the district court should remand for additional findings rather than order approval | County: request remand to allow Board to enter additional findings (citing McElhaney) | Kilgore: Board made sufficient findings and record shows evidence compelled only one conclusion | Held: Remand unnecessary; Board’s existing findings sufficiently identified bases and record was decisive, so district court properly ordered approval |
Key Cases Cited
- Harken Sw. Corp. v. Board of Oil, Gas & Mining, 920 P.2d 1176 (Utah 1996) (preponderance standard and weight of competent, credible expert testimony in administrative review)
- Associated Gen. Contractors v. Board of Oil, Gas & Mining, 38 P.3d 291 (Utah 2001) (definition of substantial evidence for administrative decisions)
- Patterson v. Utah County Board of Adjustment, 893 P.2d 602 (Utah Ct. App. 1995) (substantial-evidence is more than a scintilla but less than weight of evidence)
- McElhaney v. City of Moab, 423 P.3d 1284 (Utah 2018) (when lack of written findings can require remand for clarification)
- J.P. Furlong Co. v. Board of Oil, Gas & Mining, 424 P.3d 858 (Utah 2018) (standards for adequacy of administrative findings)