437 P.3d 406
Utah Ct. App.2018Background
- Rocky Mountain Power obtained an easement from Promontory Investments and sought a conditional use permit from Wasatch County to build a ~0.26-mile segment of a 67-mile transmission line across Promontory land in Wasatch County.
- Wasatch County planning staff and the Planning Commission denied Rocky Mountain’s permit applications based on the county ridgeline ordinance; the Board of Adjustment affirmed that denial.
- Rocky Mountain appealed to the Utility Facility Review Board (the Board), which concluded the Segment was necessary for reliable service and ordered Wasatch County to issue the permit within 60 days.
- Wasatch County requested a stay from the Board and was denied; the county then issued the conditional use permit. Rocky Mountain constructed the transmission towers and energized the line; construction was completed while judicial review was pending.
- Wasatch County sought review in the Utah Court of Appeals but did not obtain a stay from this court; the county asked the Court to rescind the permit and require removal of the completed towers.
- The Court of Appeals concluded the requested remedy is unavailable and the dispute is moot, and dismissed the proceeding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the appeal is moot because construction was completed while judicial review was pending | Wasatch: court can rescind the county-issued conditional use permit and require removal of towers | Board/Rocky: construction completed while Wasatch failed to obtain a stay; relief is impossible | Court: appeal is moot; dismiss for mootness |
| Whether the county code permits revocation of the conditional use permit as a remedy | Wasatch: Wasatch County Code allows the Planning Commission to revoke or modify a conditional use permit | Board/Rocky: revocation authority applies only for mistake, misrepresentation, or fraud; no such allegations here | Court: revocation provision inapplicable absent fraud/misrepresentation; remedy unavailable |
Key Cases Cited
- Transportation All. Bank v. International Confections Co., LLC, 423 P.3d 1171 (Utah 2017) (appeal moot where party failed to obtain a stay and assets changed hands during appeal)
- Richards v. Baum, 914 P.2d 719 (Utah 1996) (failure to seek a stay that permits sale or transfer during appeal can render the appeal moot)
- Kellch v. Westland Minerals Corp., 484 P.2d 726 (Utah 1971) (appeal moot where judgment operated and no stay/supersedeas was posted)
- Masonry Arts, Inc. v. Mobile County Commission, 628 So. 2d 334 (Ala. 1993) (appeal moot after contract awarded and no stay sought)
- Westinghouse Elec. Corp. v. Grand River Dam Authority, 720 P.2d 713 (Okla. 1986) (appeal moot where contract performance occurred during appeal and no stay was obtained)
- J.R. Francis Constr. Co. v. Pima County, 403 P.2d 934 (Ariz. Ct. App. 1965) (appeal moot where work completed during appeal and no stay was sought)