KENYON L. FARLEY AND IRENE FARLEY, Appellants, v. UTAH COUNTY, Appellee.
No. 20161078-CA
THE UTAH COURT OF APPEALS
Filed March 28, 2019
2019 UT App 45
JUDGE DIANA HAGEN authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and JILL M. POHLMAN concurred.
Fourth District Court, Provo Department; The Honorable Claudia Laycock; No. 150400689; Vincent C. Rampton, Attorney for Appellants; Jody K. Burnett and Robert C. Keller, Attorneys for
HAGEN, Judge:
¶1 Kenyon L. Farley and Irene Farley (collectively, the Farleys) submitted an application (the Application) to create an agriculture protection area to shield their land from any future zoning decisions and municipal regulations that would interfere with agricultural use. In response to the Application, Utah County’s Board of Commissioners (Utah County) received two modification requests (the Modification Requests), seeking to exclude portions of the Farleys’ land that might be needed to widen roads or install utility lines in the future. After considering the Application and the Modification Requests, Utah County approved a modified application that excluded the challenged portions from the agriculture protection area. The Farleys appealed the decision to the district court, which granted summary judgment in favor of Utah County. The Farleys now appeal the district court’s order, arguing that under state and local law, Utah County lacked discretion to do anything except approve the Application. We affirm.
BACKGROUND1
¶2 The Farleys are landowners in Utah County. In 2014, they submitted the Application to Utah County, requesting the creation of an agriculture protection area. An agriculture protection area is a geographic area that is granted “specific legal protections,”
¶3 Pursuant to Utah law, the Application and the Modification Requests were referred to the Utah County Agriculture Protection Area Advisory Board (the Advisory Board) and the Utah County Planning Commission (the Planning Commission) for their separate review, comments, and recommendations.
¶4 Utah County considered the conflicting recommendations at four public hearings. While the Application was under consideration, Utah County and the Farleys discussed potential agreements designed to address the concerns raised by Payson and the Engineer’s Office about the potential need to acquire property to widen roads or install utility lines, but no agreement was reached. Consequently, Utah County considered the Application along with the Modification Requests.
¶5 In a two-to-one decision, Utah County approved the Application with the Modification Requests, concluding that its decision was warranted under Utah Code section 17-41-305, which, among other things, required it to consider “anticipated trends in agricultural and technological conditions.”
¶6 The Farleys filed a complaint with the district court, appealing the decision to exclude portions of their property from the agriculture protection area. In the complaint, the Farleys alleged that Utah County’s decision: (1) was arbitrary, capricious, and contrary to the law; (2) violated their due process rights; (3) violated their equal protection rights; and (4) entitled them to relief under
¶7 Utah County and the Farleys filed cross-motions for summary judgment. After hearing argument on the motions, the district court granted summary judgment in favor of Utah County. In its order, the district court first determined that the governing statutes provided Utah County with discretion in deciding whether to approve the Application with or without the Modification Requests, and that, at a minimum, Utah County’s decision was reasonably debatable. Second, the court concluded that because the Farleys had only a unilateral expectation that Utah County would approve the Application without the Modification Requests, their due process rights had not been violated. Finally, the court determined that the Farleys had failed to demonstrate that they had been treated differently from similarly situated landowners and that Utah County had acted with personal animus to deny them equal protection of the laws. The district court did not address the Farleys’ claims under
¶8 The Farleys appeal.
ISSUE AND STANDARD OF REVIEW
¶9 The Farleys contend the district court erred in granting summary judgment in favor of Utah County. Summary judgment is appropriate only when “there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.”
ANALYSIS
¶10 The Farleys’ challenge to the district court’s ruling presents three issues for our consideration. First, they contend that Utah County exceeded its discretion in approving the Application with modifications. Specifically, the Farleys argue that under the Agricultural and Industrial Protection Areas Act (the Act), see generally
I. Statutory Interpretation
¶11 The Farleys contend that Utah County acted contrary to law when it approved the Application subject to the Modification Requests. The parties dispute whether Utah County’s action was a legislative or adjudicative decision, which would impact the degree of deference afforded to that decision.3 Even assuming, without deciding, that the decision was adjudicative, as the Farley’s contend, this court must presume that the decision was valid and uphold the decision unless it was (A) illegal or (B) arbitrary and capricious. See
A. Utah County’s Decision Was Not Illegal
¶12 The Farleys’ primary argument is that Utah County’s decision was illegal. A land use decision is illegal if it is “(A) based on an incorrect interpretation of a land use regulation; or (B) contrary to law.”
¶13 When interpreting a statute, our goal is to give effect to the legislature’s intent in light of the statute’s intended purpose. See Garfield County v. United States, 2017 UT 41, ¶ 15, 424 P.3d 46. “The best evidence of the legislature’s intent is the plain language of the statute itself.” Id. (quotation simplified). Where the statute’s plain language is unambiguous, we need not look to secondary considerations, such as legislative history. See Harvey v. Cedar Hills City, 2010 UT 12, ¶ 15, 227 P.3d 256.
¶14 The mere fact that both parties can articulate alternative interpretations of the statutory language is not enough to create an ambiguity. “Where both sides offer conceivable constructions of the language in question . . . the statutory text may not be ‘plain’ when read in isolation, but may become so in light of its linguistic, structural, and statutory context.” Olsen v. Eagle Mountain City, 2011 UT 10, ¶ 9, 248 P.3d 465 (quotation simplified). Accordingly, “a proposed interpretation that is plausible in isolation may . . . lose its persuasive effect when we seek to harmonize it with the rest of the statutory scheme.” Oliver v. Utah Labor Comm’n, 2017 UT 39, ¶ 21, 424 P.3d 22 (quotation simplified). With these principles in mind, we turn to the case before us.
¶15 To understand the procedure for evaluating and approving applications for the creation of agriculture protection areas, we begin with an overview of the relevant sections of the Act. Upon receiving an application for an agriculture protection area, the applicable legislative body shall provide notice to the public, advising that persons or entities affected by the creation of the area may file written objections or modification requests. See generally
¶16 After notice has been provided, the application and any proposed modifications are then referred to the Advisory Board and the Planning Commission for their review, comments, and recommendation.
- “analyzes and evaluates the proposal by applying the criteria contained in Section 17-41-305”;
- “recommends any modifications to the land to be included in the proposed agriculture protection area . . .”;
- “analyzes and evaluates any objections to the proposal; and”
- “includes a recommendation to the applicable legislative body either to accept, accept and modify, or reject the proposal.”
¶17 After receiving both reports and holding a public hearing, the applicable legislative body must then decide whether to “approve, modify and approve, or reject” the application.
¶18 Contrary to the Farleys’ interpretation, Utah County was not required to approve the Application without modification so long as each portion of their land met the criteria set out in section 17-41-305. While this proposed interpretation may appear plausible in isolation, it loses its persuasive effect when read in conjunction with sections 17-41-303 and 17-41-304. See Oliver, 2017 UT 39, ¶ 21.
¶19 Utah Code section 17-41-305 provides that certain criteria shall be considered by the legislative body “in determining whether or not to create or recommend the creation of an agriculture protection area,” but it does not mandate approval of an application that meets all five criteria. See
¶20 Moreover, the statutory scheme does not limit the Advisory Board and the Planning Commission to offering their assessment on whether the criteria under section 17-41-305 are satisfied. Indeed, the Planning Commission is require to also “analyze[] and evaluate[] the effect of the creation of the proposed area on the planning policies and
B. Utah County’s Decision Was Not Arbitrary and Capricious
¶21 The Farleys also contend that Utah County’s decision was arbitrary and capricious. “A decision is arbitrary and capricious if the decision is not supported by substantial evidence in the record.”
¶22 Here, the Farleys contend Utah County made no findings to support its decision that the modifications to the Application were appropriate, and “[t]o the extent that factual findings were made,” “all findings of fact went in [the Farleys] favor.” “To determine whether substantial evidence supports [Utah County’s] decision, we consider all of the evidence in the record but do not weigh the evidence anew or substitute our judgment for that of the municipality.” See LJ Mascaro Inc. v. Herriman City, 2018 UT App 127, ¶ 20, 428 P.3d 4 (quotation simplified). We will not disturb Utah County’s decision “so long as a reasonable mind could reach the same conclusion.” Id. (quotation simplified). Given the nature of our review of Utah County’s decision, “it is incumbent upon [the Farleys] . . . to marshal all of the evidence in support thereof and show that despite the supporting facts, and in light of conflicting or contradictory evidence, the decision is not supported by substantial evidence.” See Carlsen v. Board of Adjustment of City of Smithfield, 2012 UT App 260, ¶ 5, 287 P.3d 440 (quotation simplified).
¶23 The Farleys have made no effort to marshal any of the numerous findings made by Utah County in support of its decision. Nor have they marshalled any “conflicting or contradictory evidence” in support of their argument to show that Utah County’s decision was not based on substantial evidence. See id. (quotation simplified). “By failing to address the evidence that supports [Utah County’s] decision” or “conflicting or contradictory evidence,” see id. ¶¶ 5, 7 (quotation simplified), the Farleys have failed to carry their burden of persuasion on appeal, see Utah Physicians for a Healthy Env’t v. Executive Dir. of the Utah Dep’t of Envtl. Quality, 2016 UT 49, ¶ 20, 391 P.3d 148 (explaining that an appellant’s failure to marshal record evidence is no longer a “technical deficiency,” but such failure “will almost certainly” result in the appellant’s “fail[ure] to carry its burden of persuasion on appeal” (quotation simplified)).
II. Due Process
¶24 The Farleys next contend that Utah County violated their substantive due process rights. Among other protections, the Fourteenth Amendment prohibits states from “depriv[ing] any person of . . . property, without due process of law.”
¶25 To prevail on either a procedural or substantive due process claim, “a plaintiff must first establish that a defendant’s actions deprived plaintiff of a protectable property interest.” Zia Shadows, LLC v. Las Cruces City, 829 F.3d 1232, 1237 (10th Cir. 2016) (quotation simplified). The United States Supreme Court has stated that a “property interest” is “more than a unilateral expectation”; instead, it is a “legitimate claim of entitlement.” Board of Regents v. Roth, 408 U.S. 564, 577 (1972); see also Petersen v. Riverton City, 2010 UT 58, ¶ 22, 243 P.3d 1261 (“A property interest exists only where existing rules and understandings that stem from an independent source such as state law secure certain benefits and support claims of entitlement to those benefits.” (quotation simplified)). In municipal land use regulation cases, such as this, the entitlement analysis focuses “on the degree of discretion given the decision maker.” Hyde Park, 226 F.3d at 1210 (quotation simplified). Therefore, the Farleys must demonstrate that state and local law establish specific conditions, “the fulfillment of which would give rise to a legitimate expectation” that Utah County would approve the Application as submitted. See id. (quotation simplified).
¶26 The Farleys contend that a landowner has “the right to approval of a development or other land-related application ‘if his proposed development meets the zoning requirements in existence at the time of his application and if he proceeds with reasonable diligence, absent a compelling, countervailing public interest.’” (Quoting Western Land Equities, Inc. v. Logan City, 617 P.2d 388, 396 (Utah 1980).) Specifically, they argue that because all portions of their property satisfied the factors set out in Utah Code section 17-41-305—the law in effect at the time—the Application was entitled to a favorable decision from Utah County, that is, approval without the Modification Requests.
¶27 The Farleys’ reliance on section 17-41-305 alone is misplaced. As discussed, supra ¶¶ 15–17, approval of applications for agriculture protection zone status is governed by sections 17-41-303 through 17-41-305. Significantly, under section 17-41-304, Utah County had discretion to “approve, modify and approve, or reject” the Application. See
¶28 Because the Act does not require approval of the Application if definitive conditions are met, the Farleys had no legitimate claim of entitlement to the creation of an agriculture protection area. Instead, the Farleys had only a unilateral expectation that Utah County would approve the Application without the Modification Requests, not a protectable property interest necessary to assert a due process claim.
III. Equal Protection
¶29 Relying on the “class of one” theory established in Village of Willowbrook v. Olech, 528 U.S. 562 (2000) (per curiam), the Farleys next contend that Utah County violated their equal protection rights by singling them
¶30 The Farleys have presented no evidence showing that similarly situated landowners applying for agriculture protection area status were treated more favorably by Utah County. Their equal protection claim rests entirely on a statement made by a county deputy attorney who was asked by the County Commissioners “whether similar measures have previously been taken for agriculture protection areas.” In response, the deputy attorney stated, “[N]ot to his knowledge.”
¶31 The Farleys cannot carry their burden based on the deputy attorney’s statement alone. The statement does not speak to whether similarly-situated applicants exist and, if so, whether those applicants were treated more favorably than the Farleys. In arguing that neither Utah County nor the district court identified a single applicant that was treated like them, the Farleys have attempted to shift the burden of proof. But it is the Farleys who must establish that similarly-situated landowners received more favorable treatment, and it is insufficient for them to allege that they were a “trial balloon” or a case of “first impression.” Instead, they must identify comparators that are “similarly situated in all material respects,” which is a “substantial burden” in this context because “each property has unique characteristics.” See Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1217–18 (10th Cir. 2011); id. at 1218 (stating that this requirement prevents “a flood of claims in that area of government action where discretion is high and variation is common”). Because the Farleys have failed to identify facts that tend to demonstrate that they were treated differently from other similarly situated landowners, their equal protection claim fails as a matter of law, and we need not address whether there was a rational basis for Utah County’s decision.
CONCLUSION
¶32 We conclude that Utah County was entitled to summary judgment as a matter of law. First, under the Act, Utah County had discretion to modify the Application for the creation of an agriculture protection area and the Farleys have not demonstrated that Utah County exercised that discretion in an arbitrary and capricious manner. Second, due to that discretion, the Farleys had only a unilateral expectation of a favorable decision, which is insufficient to establish a due process claim. Finally, we conclude that the Farleys did not make the necessary showing to establish an equal protection claim. Accordingly, we affirm.