Northern Monticello Alliance v. San Juan County, 506 P.3d 593

Background

In 2012 the San Juan County Planning Commission issued and then amended a conditional use permit (CUP) for a wind farm (later owned by Sustainable Power Group/sPower) with mitigation conditions to address flicker, light, and sound.
Northern Monticello Alliance (NMA), an LLC of adjacent landowners, alleged sPower violated CUP conditions and complained in 2015; the Planning Commission held a revocation hearing but permitted only the permittee (sPower) to present evidence and voted not to revoke.
NMA appealed to the San Juan County Commission, which initially reversed and remanded for insufficient evidence; after receiving an ex parte letter from sPower and a closed meeting, the County amended its decision to uphold the Planning Commission.
The district court remanded the County decision for due process violations (ex parte communication and lack of notice/opportunity to be heard), the County then heard NMA and sPower and again upheld the Planning Commission; the district court later granted summary judgment to the County.
The court of appeals reversed, holding NMA had a due process right to present evidence at the Planning Commission revocation hearing; the Utah Supreme Court granted certiorari to resolve whether the right to appeal corresponds to a right to participate below.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
1) Did NMA have the statutory right to appeal the Planning Commission decision to the County Commission?	NMA: As an adversely affected party under CLUDMA and the County Zoning Ordinance, yes.	County/sPower: The Planning Commission decision was not an administration/interpretation of a land-use ordinance, so no appeal right.	Held: Yes. NMA had a CLUDMA-based right to appeal.
2) Does the statutory right to appeal create a due process right to present evidence at the Planning Commission revocation hearing?	NMA: Right to appeal + ordinance language requiring respect for due process means NMA must have participatory rights below.	County/sPower: Appeal is a procedural right only and does not create a constitutional due process entitlement to present evidence at the initial hearing.	Held: No. The right to appeal is procedural and does not by itself create a due process entitlement to participate at the revocation hearing.
3) Do CLUDMA or the County Zoning Ordinance (or the CUP conditions) create a protected property interest entitling NMA to participate?	NMA: The statute/ordinance protect adjacent owners; specific mitigation conditions in the CUP create a legitimate entitlement to enforcement and participation.	County/sPower: The revocation/enforcement scheme vests broad discretion in the Planning Commission; no mandatory substantive predicates exist to create an entitlement.	Held: No. Neither the statutory/ordinance scheme nor the CUP conditions here created the required protected interest because the County retained broad discretionary power.
4) Was any due process defect cured by the County Commission’s later consideration and by allowing NMA to be heard on remand?	NMA: The initial exclusion was prejudicial and not cured because the County’s review is limited to the record and deferential standards.	County/sPower: County's later hearing and consideration of NMA cured any prior due process error.	Held: Court did not rest its decision on cure; primary holding rejects entitlement to participate below. Court reversed court of appeals and remanded for further issues to be addressed by court of appeals.

Key Cases Cited

Hewitt v. Helms, 459 U.S. 460 (creation of protected interest requires unmistakably mandatory language)
Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454 (liberty/property interests arise from substantive predicates and mandatory language)
Town of Castle Rock v. Gonzales, 545 U.S. 748 (governmental discretion defeats creation of protected entitlement)
Meachum v. Fano, 427 U.S. 215 (discretionary official action does not create a protected interest)
Connecticut Board of Pardons v. Dumschat, 452 U.S. 458 (discretion in officials undermines entitlement claims)
Fusco v. Connecticut, 815 F.2d 201 (statutory appellate procedures alone do not create a constitutional property interest)
Gagliardi v. Village of Pawling, 18 F.3d 188 (local regulator discretion normally precludes entitlement)
Jacobs, Visconsi & Jacobs Co. v. City of Lawrence, 927 F.2d 1111 (discretionary enforcement denies property interest)
Culbertson v. Board of County Commissioners of Salt Lake County, 44 P.3d 642 (CLU DMA enforcement actions as potential remedy)