Fuller v. Springville City
355 P.3d 1063
Utah Ct. App.
2015
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David FULLER and Ruth M. Fuller, Plaintiffs and Appellants, v. SPRINGVILLE CITY, Defendant and Appellee.

No. 20140433-CA

Court of Appeals of Utah.

July 16, 2015

2015 UT App 177 | 355 P.3d 1063

CHRISTIANSEN, Judge

the court hearing the petition.” . “In sum, if a petitioner is able to establish that a lower court abused its discretion, that petitioner becomes eligible for, but not entitled to, extraordinary relief.” .

¶ 4 Defendant Donald Christopher Lahnan failed to appear in the justice court at a May 8, 2014 hearing. During that hearing, Lahnan‘s appointed counsel stated that he was not in contact with Lahnan аnd did not have a good address for him. The justice court issued a warrant of arrest and a Notice of Defendant‘s Failure to Appear and Order to Commence Bond Forfeiture Proceedings. That notice included a Certificate of Notification stating that the Washington County Justice Court had sent the notice to 1st Out Bail Bonds by certified mail. It is undisputed that 1st Out Bail Bonds failed to produce the defendant within six months of notice. St. Georgе City moved to collect on the bail bond, and the justice court granted the motion.

¶ 5 1st Out Bail Bonds argued in its petition for extraordinary relief that the justice court was required by statute to give notice of failure to appear on two prior occasions when Lahnan did not appear personally but was represented by counsel who had excused his client from attending. 1st Out Bail Bonds claimed that when Lahnan‘s attornеy appeared on his behalf at the July 2013 and January 2014 hearings without Lahnan also being present, it triggered the statutory requirements to give notice to the surety. 1st Out Bail Bonds also claimed that the City was required to provide a copy of the actual certified mail receipt when it moved for bail forfeiture. The district court rejected those arguments, concluding that the justice court complied with the statutory requirements. Finаlly, 1st Out Bail Bonds argued that the justice court erred in granting the motion for bail forfeiture because there was no notice to submit filed. The district court decided that the justice court did not err in granting the City‘s motion for bail forfeiture at the close of briefing on the motion. See Utah R.Crim. P. 12(b) (“If no party filed a written Request to Submit, or the motion has not otherwise been brought to the attention of the court, the motion will not be considered submitted for deсision.” (emphasis added)).

¶ 6 Upon a defendant‘s failure to appear, the court is required to issue a bench warrant and to direct that the surety be given notice of the nonappearance. Utah Code Ann. § 77-20b-101(1) (LexisNexis 2012). The clerk of court shall then (1) send notice of the failure to appear to the surety by certified mail, (2) notify the surety of the prosecutor‘s contact information, and (3) provide notice to the prosecutor of the failure to appear. Id. In this case, the City‘s motion for bail forfeiture was supported by a copy of the notice sent to the surety of the defendant‘s nonappearance, along with the certificate of the justice court clerk indicating that the notice to the surety was sent by certified mail. The district court found that the justice court complied with the statutory requirements. 1st Out Bail Bonds has identified no authority supporting its argument that an appearance through counsel is nevertheless a nonappearance by a defendant.

¶ 7 Under the circumstances of this case, 1st Out Bail Bonds has failed to demonstrate that the district court abused its discretion in denying extraordinary relief. In addition, 1st Out Bail Bonds has failed to identify any legal authority to support its claim that the Washington County Justice Court failed to comply with the statutory requirements for bail forfeiture. Accordingly, we affirm.

David Fuller and Ruth M. Fuller, Appellants Pro Se.

Jody K. Burnett and Robert C. Keller, Salt Lake City, for Appellee.

Judge MICHELE M. CHRISTIANSEN authored this Memorandum Decision, in which Judges GREGORY K. ORME and STEPHEN L. ROTH concurred.

Memorandum Decision

CHRISTIANSEN, Judge:

¶ 1 David and Ruth M. Fuller appeal from the district court‘s orders granting summary judgment in favor of Springville City and dismissing the Fullers’ claims. The Fullers sought review in the district court of the Springville City Board of Adjustment‘s decision denying their request for approval of a nonconforming use. The Fullеrs argue that the Board of Adjustment‘s application of Springville City‘s zoning ordinances pertaining to single-family and multifamily-residential uses resulted in an unconstitutional taking of their property. For the reasons stated below, we affirm the district court‘s dismissal of the Fuller‘s claims.

¶ 2 The Fullers’ property is situated in an area of Springville City zoned solely for single-family use. The Fullers maintain a basement apartment in their residence and utilize their homе as a multifamily dwelling. The Fullers claim ‍​‌‌‌‌‌​​​‌‌​​‌​​‌‌‌‌‌​​​‌‌‌​​‌​​​‌‌​‌​​​‌​‌​‌​​‌‍that they have maintained this multifamily dwelling for many years. When Springville City learned of the basement apartment, however, the city notified the Fullers that such use violated the zoning laws and needed to stop.

¶ 3 The Fullers then applied for a certificate of nonconformity, claiming that their basement apartment qualified as a preexisting nonconforming use. Springville City‘s community-development director (the Director) denied their application and concluded that the Fullers had failed to prove that their basement apartment “could have [ever] been legal under the zoning ordinances in place since the house was constructed” and that the Fullers’ use therefore had not been “legally established” as required to demonstrate a nonconforming use under both state statute and Springville City ordinance. The Fullers appealed that decision to the Springville City Board of Adjustment (the Board), which upheld the denial of the Fullers’ application for a certificate of nonconformity. Thereafter, the Fullers filed a complaint in1 the Fourth District Court appealing the Board‘s decision.

¶ 4 In their complaint, the Fullers asserted a number of claims, alleging “tortuous bad faith failure to investigate and resolve nonconforming use certificate which may arise out of implementatiоn of previous settlement agreement,” “bad faith denial of request for non-conformity,” “abuse of process,” and “breach of expressed agreement to good faith negotiation.” The Fullers sought a declaratory judgment that the Board‘s “decision denying request for non-conformity is arbitrary, capricious, and against the substantial weight of the evidence” and that Springville City‘s zoning ordinance was “null and void.”1

¶ 5 Springville City filed a motion for partial summary judgment “seeking dismissal of all of the Fullers’ claims or theories other than a claim which might appropriately constitute a Petition for Review of the [Board‘s] decision.” At the hearing on the motion, the court orally granted Springville City‘s motion except as to that portion of the Fullers’ complaint that the court determined could be construed as a petition for review of the Board‘s decision. The district court requested additional briefing from the parties on whether the Fullers could bring a constitutional challenge to Springville City‘s historical zoning ordinances based on the Utah Supreme Court‘s holding in .

¶ 6 Before the district court entered a final ruling on Springville City‘s motion for summary judgment, the parties stipulated to a stay of the district court case and a remand to the city for “further proceedings and consideration of evidenсe by [the Director]” regarding “whether and to what extent [the Fullers] can prove the nonconforming use of their property as a two-family dwelling was ever lawfully and legally established in the first instance.” After additional consideration, the Director again denied the Fullers’ application. The Director found that the lot on which the Fullers’ home was constructed was not of sufficient size to have ever allowed multifamily use in the zоning district where it was located. Thus, the Fullers could not

demonstrate that use of their property as a multifamily dwelling had ever been legally established. The Fullers requested reconsideration by the Director and requested additional time to conduct further research and present additional arguments. The Director denied the Fullers’ requests and affirmed his previous decision.

¶ 7 The Fullers again appealed to the Board. Thе Board upheld the Director‘s decision based on “a lack of evidence presented to [the] Board that when the use was originally established that it conformed with the applicable zoning ordinance either under the Utah County zoning ordinance or Springville City zoning ordinance and that, for that reason there‘s been a lack of evidence showing that it was legal in the first instance.” The Fullers then amended their original сomplaint in the district court case, seeking judicial review of the Board‘s final decision.

¶ 8 Subsequently, the district court held another hearing on Springville City‘s motion for summary judgment. After the hearing, the district court entered a written order memorializing its grant of summary judgment to Springville City on all of the Fullers’ claims except their claim for review of the Board‘s decision. The district court also ordered that “[s]olely in the context and for the purрoses of the Fullers’ remaining Petition for Review claim,” the Fullers could challenge the facial validity of Springville City‘s zoning ordinances. The district court allowed the Fullers to file an amended complaint to “describ[e] the basis for their claim that the [Board‘s] decision on their nonconforming use application was arbitrary, capricious or illegal” and to clarify the Fullers’ constitutional challenges to Springville City‘s ordinances.

¶ 9 Springville City then filed a motion for summary judgment on the Fullers’ claim regarding their petition for review of the Board‘s decision. The district court granted summary judgment in favor of Springville City and affirmed the Board‘s decision denying the Fullers’ application for a certificate of nonconformity.

¶ 10 Several months later, Springville City filed a final motion for summary judgment seeking to dismiss the Fullers’ remaining constitutional claims. The district court granted the motion and dismissed “the Fullers’ claims against the City ... in their entirety, with prejudice and on the merits.” The Fullers appeal.

¶ 11 This case involves a challenge to a land use authority‘s decision to deny an application for a nonconforming use. We review the district court‘s judgment “as if we were reviewing the land use authority‘s decision directly, and we afford no deference to the district court‘s decision.” (citation and internal quotation marks omitted).

¶ 12 The Fullers first argue that application of the zoning ordinances to prohibit their keeping a basement apartment constitutes an unconstitutional taking of their property. However, the Fullers have failed to demonstrate that their unconstitutional takings claim was preserved below, as they are required to do by our rules of appellate procedure. An appellant‘s brief must include “citation to the record showing that the issue was presеrved in the [district] court; or ... a statement of grounds for seeking review of an issue not preserved in the [district] court.” Utah R.App. P. 24(a)(5)(A), (B). We generally will not reach an issue if the appellant fails to establish that it was preserved. See . The Fullers cite to instances in the record where they made vague assertions about the ordinances’ constitutionality, but none of these record citations demоnstrate that a takings argument was ever presented to the Board or the district court. Because the Fullers have failed to show that this argument was preserved below, we decline to address it. See .

¶ 13 Next, the Fullers argue that the district court erred by applying the 1997 version of the Utah Code governing boards of adjustment rather than “the laws of municipal annexation as they existed in 1975.” According to the Fullers, the issue can be chаracterized in this way: “[C]an the Court properly use Municipal Law as it exists today

to determine the legality of the use? Or should the Court have used State Law as it existed at the time of annexation [by Springville City] to determine the legality of the enforcement?” Though the Fullers claim to challenge the district court‘s decision, we must review the land use authority‘s decision directly. See . Thus, we understand the Fullers’ argument to mean that the Board should have applied “the 1953 version” of the Utah Code governing boards of adjustment—the version of the statute in effect at the time Springville City annexed the Fullers’ property2—because the Board interpreted zoning ordinances in place “since before 1960” in determining the legality of the property‘s use as a component of the nonconforming-use determination.

¶ 14 This argument is also unpreserved because the Fullers did not raise to the Board the issue of which version of the law applies to their claims. “Utah law requires parties to preserve arguments for appellate review by raising them first in the forum below—be it a trial court or an administrative tribunal.” . “[I]ssues not raised before administrative agencies are [not preserved and are] not subject to judicial review.” (alterations in original) (quoting ); see also (explaining that when “the district court‘s review of the [administrative agency‘s] decision was limited to a review of the [agency‘s] record,” “we review [the administrative agency‘s] decision as if the appeal had come directly from the agency“). Though the Fullers presented this argument to the district court, the Fullers have failed to demonstrate that they originally presented this argument to the Board. It is therefore unpreserved, and we decline to address it. See .

¶ 15 Next, the Fullers appear to challenge the merits of the Board‘s denial of their application for a nonconforming use. The Fullers also argue, based upon their reading of the 1953 version of the Utah statute outlining the creation of boards of adjustment and their designated powers, that the Board deprived the Fullers of the opportunity to present evidence supporting their claim that “the use [of their nonconforming basement apartment] promoted the public welfare.” The Fullers state, “In 1953, the zoning authority [could] only deprive the owner of property of its use to which it was lawfully devoted prior to the enactment of the ordinance if the parties have had the opportunity to present evidence as to the welfare of the public.” (Emphasis added.)

¶ 16 Both in 2011 and 2013, the Board denied the Fullers’ application for a nonconforming use because the Fullers failed to prove that their multifamily residence was ever legally established. The Board affirmed the Director‘s ‍​‌‌‌‌‌​​​‌‌​​‌​​‌‌‌‌‌​​​‌‌‌​​‌​​​‌‌​‌​​​‌​‌​‌​​‌‍findings that the lot on which the Fullers’ home was constructed was not of sufficient size to have ever legally permitted multifamily use and was not located in a zoning district that allowed multifamily use.3

¶ 17 Utah Code section 10-9a-801 provides the judiсial standard of review of a land use authority‘s decision: “The courts shall: (i) presume that a decision, ordinance, or regulation made under the authority of this chapter is valid; and (ii) determine only whether or not the decision, ordinance, or regulation is arbitrary, capricious, or illegal.” Utah Code Ann. § 10-9a-801(3)(a) (LexisNexis 2007). Thus, “[a] final decision of a land use authority or an appeal authority is valid if the decision is supported by substantial evidenсe in the record and is not arbitrary, capricious, or illegal.” Id. § 10-9a-801(3)(c); see also (reviewing a board of adjustment decision as an administrative act and employing substantial-evidence standard). Substantial evidence is “that quantum and quality of relevant evidence that is adequate to convince a reasonable mind to support a conclusion.” (citation and internal quotation marks omitted).

¶ 18 Here, the Fullers have failed to show that the Board‘s decision was arbitrary, capricious, or illegal. The Board denied the Fullers’ application for a nonconforming use because the Fullers failed to prove that their multifamily residence was ever legally established. On appeal, the Fullers point to no evidence in the record to demonstrate that their use of their residence as a multifamily apartment was ever legally established and, thus, that the Bоard‘s decision was arbitrary, capricious, or unsupported by substantial evidence. Even if we were to assume that the 1953 statute the Fullers rely on was applicable to the Board‘s determination here, the Fullers have failed to demonstrate any error in the Board‘s finding that their use of their property as a multifamily apartment was never “lawfully devoted.” See Utah Code Ann. § 10-9-6 (Allen Smith Co. 1973). We therefore need not decide whether the Fullers were deprived of the “opportunity to present evidence as to the welfare of the public,” because the Board‘s determination that their property was never “lawfully devoted” to a nonconforming use is fatal to the Fullers’ claim. See id.

¶ 19 All of the other issues raised by the Fullers are inadequately briefed. “It is well established that Utah appellate courts will not consider claims that are inadequately briefed.” . “An adequately briefed argument must provide meaningful legal analysis.” (citation and internal quotation marks omitted). “A brief must go beyond providing conclusory statements and fully identify, analyze, and cite its legal arguments.” (citation and internal quotation marks omitted). Rule 24 of the Utah Rules of Appellate Procedure requires that a brief include “citation[s] to the record,” Utah R.App. P. 24(a)(5)(A), and an argument that “contain[s] the contentions and reasons of the appellant ... with citations to the authorities, statutes, and parts of the record relied on,” id. R. 24(a)(9). “Rule 24(a)(9) requires not just bald citation to authority but development of that authority and reasoned analysis based on that authority.” . If an appellant does not clearly identify and analyze the issues, we will not address them. We address ‍​‌‌‌‌‌​​​‌‌​​‌​​‌‌‌‌‌​​​‌‌‌​​‌​​​‌‌​‌​​​‌​‌​‌​​‌‍only those issues that are properly identified, clearly preserved, and adequatеly supported.4

¶ 20 We acknowledge that the Fullers have pursued their appeal without counsel and are entitled to “every consideration that may reasonably be indulged.” (citation and internal quotation marks omitted). However, as a general rule, “[parties] who [represent themselves] will be held to the same standard of knowledge and practice as any qualified member of the bar.” (citation and internal quotation marks omitted). Consequently, “[r]easonable considerations do not include attempt[ing] to redress the ongoing consequences of the party‘s decision to function in a capacity for which he is not trained.” Here, the Fullers’ brief simply provides too little information for this court to analyze any other issues they attempt to present for review.

¶ 21 Based on the record before us, we conclude that the Fullеrs have not demonstrated that the Board‘s decision was arbitrary, capricious, or illegal. Accordingly, we affirm the district court‘s grant of summary judgment and dismissal of the Fullers’ claims.

MICHELE M. CHRISTIANSEN

JUDGE

Notes

1
To the extent the Fullers raised other allegations and requests for relief in their complaint, they are not pertinent to this appeal and we do not address them.
2
The Fullers repeatedly reference “the 1953 version” of section 10-9-6 of the Utah Code. That statute was not amended between 1953 and Springville City‘s annexation of the area containing the Fullers’ property in 1975. We therefore understand all of the Fullers’ references to “the 1953 version” of the law to mean the same version in effect at the time of the annexation in 1975. See Utah Code Ann. § 10-9-6 (Allen Smith Co. 1973).
3
Despite the Fullers’ arguments that the burden should fall on Springville City to prove illegality of the use and the existence of ordinances restriсting the use, Utah‘s statute governing nonconforming use explicitly states, “Unless the municipality establishes, by ordinance, a uniform presumption of legal existence for nonconforming uses, the property owner shall have the burden of establishing the legal existence of a noncomplying structure or nonconforming use.” Utah Code Ann. § 10-9a-511(4)(a) (LexisNexis Supp.2010). Springville City code section 11-3-207 also places the burden on the land owner:

If a determination of the nonconforming status of a property is desired, the owner ... shall submit a completed application for a Certificate of Nonconformity with the Community Development Department. In all cases, the property owner shall have the burden of proving by a preponderance of evidence that a building [or] ... use ... which does not conform to the Provisions of this Title, complied with the applicable ordinance requirements in effect at the time the current circumstances were originally created.

4
For example, the Fullers state in their brief, “[W]ith respect to the basement apartment, enforcement of the annexation and subsequent zoning ordinances would be invalid and violative of the equal protection and due processes clauses of both the state and federal constitutions since it plаced upon the property owners the unreasonable burden of furnishing detailed records which had been lost or destroyed by the County and/or the City.” The Fullers fail to cite any authority or provide any legal analysis to support their equal protection and due process claims. “There is no reasoned analysis or factual development supporting [their] legal claim[s,] ... thus dump[ing] the burden of argument and research on this court.” See (third alteration in original) (citation ‍​‌‌‌‌‌​​​‌‌​​‌​​‌‌‌‌‌​​​‌‌‌​​‌​​​‌‌​‌​​​‌​‌​‌​​‌‍and internal quotation marks omitted).
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