Harper v. Summit County

2001 UT 10 HARPER, Frank D. Richard

Jane Richins,

Cattelan, Plain- Richard

tiffs, Respondents, and Cross-Petition-

ers,

v. body COUNTY, politic, Sum-

SUMMIT County Commission,

mit Summit Coun-

ty Commission, Planning and Utelite Defendants, Petitioners,

Corporation, Cross-Respondents. 981493,981495,981591.

Nos.

Supreme Court of Utah.

Feb.

Rehearing Denied June Olson,

Eric City, C. Salt Lake for Utelite Corp.

HOWE, Chief Justice:

INTRODUCTION {1 County, Summit Summit Com mission, County Planning Commis (collectively County), sion and Utelite Corporation jointly petitioned for a writ of appeals, certiorari seeking to the court of review of its decision that the district court properly granted Harper, D. Jane Richard Cattelan, Harper, Frank and Richard Ri- (collectively Harpers) partial summary chins judgment declaratory on their claim for and injunctive cross-petitioned relief. review, asserting ap for that peals correctly upheld on their declaratory injunctive relief, claims for (1) dismissing but erred in their claims (2) Open Act, Meetings the Utah and Public (8) process, for denial of due for Harper fees. See County, v. Summit (Utah Ct.App.1998). P.2d 768

BACKGROUND history T2 The long of this case is somewhat began convoluted.1 It in 1988 when Utelite decided to relocate a railroad loading facility Utah, Wanship, prop from erty it leased from Union Pacific Railroad County gave approv Utah. The verbal Echo, al of the at a planning relocation commission 18, 1988, meeting stating held December permitted it considered the use. County shortly thereafter confirmed its approval in a letter Utelite. Harpers, who live near the relocated Echo, facility in against filed this action County in alleging third district court Warlaumont, Jeffrey L. Appel, James W. violated its code in Wilson, Benjamin City, T. Salt Lake relocation; approving the that it violated the plaintiffs. Open Meetings Utah and Public Act fail- Burnett, Jody K. City, Salt Lake for Sum- ing notify public that the issue would County, mit defendants. meeting be discussed at a planning (citing Wright, note, We as did the court of five Gillmor v. 850 P.2d 438-40 appeals, judges (Orme, J., trial (Utah 1993)) heard this case of the third because concurring) (discussing system rotating judges district's in Summit rotating judges County). in Summit 963 P.2d at 771-72 n. 1 County. "(a) facility presently found is not by failing to include dis he commission (b) injurious plaintiffs, issue in the minutes of the cussion of the does not ad- meeting; had violated plaintiffs'] enjoy- and that versely affect the use and process rights by approving (c) a facili their due property, ment of does not enjoyment ty that caused them to lose any property damage plaintiffs." to cause Harpers sought removal of property. their fact, to he found the be nuisance facility pursuant to section 1.16 of the per "solely by Judge se reason of Wilkinson's County Development Code and see findings implicit ... in [it]." Order and the 2 Code and claimed tion 17-27-23 of Utah added.) (Emphasis attorney pursuant to 54-2-9 of fees section parties cross-appeals 8 The filed with the They later amended the com the Utah Code. appeals, which affirmed district plaint, adding as a defendant without Utelite regarding court's decision specific adding any claims to it. relief, injunctive code violation and but held Harpers partial summary T4 moved for open claim meetings that the act was barred judgment against County on the above by the statute of limitations and thus re Judge granted claims.3 Homer Wilkinson attorney versed the award of fees based on code, open on their the motion it. at 781. The See 963 P.2d court claims, act, meetings process and due Judge also Wilkinson's reversed County to ordered the remove County conclusion that had violated the stay [the "with the of the effectiveness of Harpers' process rights Judge due (60) injunctive sixty days from the relief] 4 finding was a Noel's nuisance date of this order." per se. id. See Harpers Following ruling, the bench 15 complaint, again adding amended review, County T9 On certiorari Utelite, specifically against including claims jointly seek reversal of the court Utelite statutory common law and and an nuisance affirming decision 1983, §§ 42 attorney fees claim under U.S.C. judgment on the code violation Judge stayed 1988.5 Glenn Iwasaki later relief, granting injunctive claim and while the facility pending final removal of the resolu Harpers per the nuisance seek reversal on tion of all claims still at issue. se, process, open meetings due act claims. pending, T 6 Before trial on the claims still

Judge attorney Frank G. Noel awarded fees 52-42-9, to under section but held OF REVIEW STANDARD they adequately plead failed had of action under section 1983 and were cause Summary judgment appropri 110 not fees under therefore entitled only genuine ate there are no issues of when 1988. He also found the to be section moving party is entitled material fact and the per Because the nuisance a nuisance se. R. as a matter of law. See Utah Harpers stipulated ruling, to the dismissal of 56(c), Leasing Copper Civ. P. State Co. v. liability, remaining all theories of and the Co., Appliance Furniture 770 P.2d Blacker & only on the of dam- trial went forward issue (Utah 1988). 88, certiorari, we do not On claim, ages the nuisance which were the trial but of review the decision of court $14,500. totaling awarded in an amount appeals, the court of and we do so for correc Utah in the equitable tion of error. See State Judge T7 Noel did not award S.W., 79, ¶ 8, by Judge to that interest M.W. and UT relief in addition awarded P.3d 80. summary judgment Wilkinson in the because Though Judge 4. Wilkinson ruled from the bench 2. Section 17-27-23 has since been renumbered July findings on this motion 17-27-1002. August signed order were until 1993. not Though Harpers' summary judgment motion Utelite, by Judge was denied specifically filed a mem- 5. A third motion to amend excluded Pat Brian on March orandum in to it. response ANALYSIS zoning compliance a certificate of and a building permit be- to Utelite before Utelite I DEVELOPMENTCODE facility. gan construction of the The court of VIOLATIONS County appeals observed that the did not 1 11 address first whether We deny the absence of a certificate of affirming the trial court's appeals erred compliance building permit. or a Har- determination per, presume, 963 P.2d at 773. We based on County De violated the Summit observation, velopment In their memorandum Code. concluded the certificate and summary judgment, Harpers support of as exist and that had thus violated develop violated the serted that the the code. (1) ways: failing to issue a ment code four County disagree 1 14 We and hold that the (2) compliance, failing zoning certificate of development did not violate the code for fail- building permit began issue a before ing zoning compliance a to issue certificate of (8) construction, concluding that the building permit: County a the did issue (4) use,6 permitted failing a to order was zoning compliance, certificate of and the operations on and of Utelite to cease work County duty per- building had no to issue a becoming being the after aware it was began. mit before construction permit. constructed without a ¶12 Though the trial court concluded the First, County issued Utelite code, County development it had violated the zoning compliance a certificate of in the form specify did not how and otherwise planning of a letter from the chairman of the explain ruling. The court of not its commission to Carsten Mortensen of Utelite failure, grounds ed this found but sufficient letter, January dated 1989. The written upon available to the trial court which to letterhead, County stated that "the Utel- Harper, affirm 963 P.2d at the decision. See operation per ite ... would be considered a 773. We now review 1.6(11) mitted use at the Echo site." Section conclusion. development a code defines certificate zoning compliance as "[a] certificate issued Zoning

A. Certificate by Zoning Administrator of Summit Building Permit County, designated representative, or his alleged stating proposed building 113 The first two violations are that the use of the code, development based on requirements section 1.9 of or land conforms to the of this removy- definition, provides which or As is clear from this "[clonstruction Code."7 any building any part purpose al of give or or of the certificate is to structure Coun commenced, pro- ty opportunity proposed thereof ... shall not be to ensure that a with, except ceeded after the issuance a project complies zoning designations with permit Prerequisite stating written for the same.... the code. The letter "permitted a would be use" is evidence that building permit to the of a shall be issuance obtaining zoning County project of a certificate of com- had reviewed the and had complied.8 1.9 determined that it Thus sum pliance." County Summit Dev.Code (1989). stated, Harpers mary previously appropriate As as- was not County issuing theory. serted was at fault in not Harpers argue a a such conclusion was Section 12.20 of the code defines rezoning" "de[ violation types buildings two of authorized uses of land or chapter two of the code and permitted in a zone: uses conditional uses. -7.10, sections and -8 the Utah 17-27-7, By designating "permitted the Utelite a Code. The and Utelite assert use," County essentially it was an concluded planning commission's decision was a use deci- any authorized use in the zone. To avoid confu- zoning sion, not a decision. terms, permitted sion of the we will refer to a as an authorized use. 7. Our search of the code revealed requirements no further aof certificate of compliance. party prevail a Second, moving vio For a County did not T18 show, summary judgment, it motion for must issuing a development code not late depositions, answers to through "pleadings, began building permit before Utelite valid file, interrogatories, and admissions on to- it had no facility because construction on the affidavits, any," if that no gether with permit; there is no evidence duty to issue a dispute and that it is material facts are a application for in the record that judgment as a matter of law. See County.9 Harpers entitled to had submitted been 56(c). shown, P. The court of unable to Utah R. Civ. and we have been have not Harpers met this burden sub- find, authority placing duty on the held that any undisputed mitting verifying "exhibits facts building permit it has issue a when permits regarding building application The the electrical received an for one. not County issued Utelite." places instead language of section 1.9 at 774 n. 2. It then determined that applying building permit on P.2d burden of properly granted be- person entity seeking approval to con County's cause the affidavits were not suffi- building struct the or structure. dispute of fact on whether know that a cient to establish cannot be deemed to accessory facility constituted an use and application until an structure will be built thus a valid use in zone under the devel- perhaps until construction be submitted or Therefore, opment Harper, 963 P.2d at 774. reading into section 1.9 a code. See gins. permits duty County building issue on the to County urges 119 The now us to application is submitted is unreas before an determination reverse Summary judgment on the devel onable.10 Howev that the affidavits were insufficient. appropriate un opment claim was not code er, sufficiency of the we need not reach theory. der this that the court affidavits because we conclude Harpers finding that met erred B. Authorized Use Violation establishing the absence of their burden disputed accessory issue and facts on the use Harpers argued in their motion also they were entitled to thus failed to show partial summary judgment for that judgment. development ap- County violated the code for sum support €20 In of their motion facility "per- proving construction of the as a the fol property mary judgment, submitted mitted use" on the Pacific Union copy application building lowing: "RR-2" a of the property because the is zoned either 89007, "AG-1," permit designated which is an which allows for con- number neither of 18, January They permit; a letter dated loading facility. of a contend- electrical struction 1989, County the chair authorizing letterhead from ed that the structure the zone repre planning to a very misinterpreta- least a man of the commission constitutes at the confirming approval of development at worst a of Utelite tion of the code and sentative use; facility permitted minutes rezoning" property. as "de[ ]facto 13, planning December County replied was neither commission's that its decision copy application for proper meeting; a of the things, those but was instead a copy with a of the interpretation development code be- number 89291 of the attached; approved building permit an affi loading facility accessory use cause the Harper; and a of the table nonconforming copy use and is davit of Jane to Pacific's Union development customarily incidental of authorized uses from thus an authorized use nothing these submissions permitted traditional use under see- code. We find to a 12.20(1) facility is an ac whether the of the code. addresses tion However, opin- in the sought we will discuss later Though that Utelite 10. as the record indicates approval at the December 1988 once ensure, under a ion, duty County planning meeting, evi- commission there is no already begun, that the struc- construction had application for a dence that it submitted an zoning complied with the laws. See ture (other building permit than the one for the elec- 1.7(10). County Dev.Code permit) trical until October 1989. However,

cessory on the and thus con that violation was later remedied they by permit clude that are not sufficient to resolve number issued in November disputes regarding fact of material accessory allegations use issue raised 1.7(10) 123 The fact that section pleadings. and denials in the Because the provides County code burden, Harpers did not meet their initial can authorize construction to continue after they were not entitled to ordering stopped implies it that the violation County improperly on their claim that building can be remedied and that the approved an authorized as use.11 completed. structure can then be In this County required Thus was not submit case, requiring the violation of the code against evidence to defend motion. County halt construction of the as 1.7(10) per building section is the lack of a Development C. Code Section permit required by section 1.9. Thus if the 1.7(1) Violation remedied, violation of section 1.9 is the viola- complaint, Harpers T21 also al- 1.7(10) tion of section is remedied as well. leged develop- violated the failing ment code in to order Utelite to cease Although we have found no Utah use of the when the realized it construing case law ordinance such had building 1.9, been constructed without a valid as section we conclude if 1.7(10) permit. Section or structure is found to be an authorized use provides shall zone, "[olrder complies in the pro otherwise with the stopped any building work or structure code, visions of the and would have been a constructed, being which is or removed con- proper building permit candidate for a had trary provisions Any of this Code.... sought began, one been before construction person receiving such notice shall for[th]with violation of section can 1.9 be remedied stop by such work until authorized the Zon- subsequent building the issuance of a valid ing Administrator repre- or his authorized permit. proceed." County sentative to The did not facility If properly the was char fact, stopped facility. order work on the In "permitted zone, acterized a use" the building permit after the had been issued building permit number 89291 remedied the facility complete, Harpers and the was re- violation of section 1.9 and thus the violation quested County that the order Utelite to 1.7(10). pleadings, section Because the on facility cease and desist use of the and initi- face, issue, dispute their a raised about this rezoning process ate a of the area. summary judgment Harpers' on development county The request, denied the stat- code claim was error. We thus direct the ing facility that accessory because the was an appeals court of to remand the case to the nonconforming property, use on the railroad trial court for a determination of whether the a cease and desist order would be "an unrea- facility accessory existing is an county's police power sonable exercise of the nonconforming correctly desig use and thus taking and an unconstitutional of vested "permitted by nated a County. use" property rights." knew, County 1 22 We find that the at the II. REMOVALAND NUISANCE very began, latest when construction that the PER SE facility going was forward without a permit and was thus in granted Harpers violation of the devel- 126 The trial court in- opment failing code. In junctive to order Utelite to relief on the basis of its conclusion stop facility, County work on the violated that was constructed violation 1.7(10) section development development code. of the code. Because we re- 11. The dissent asserts that the erred in note that the was never a asserted to be use, permitted conditional but was instead a authorizing use. "[in because order use, qualify development disagree as a conditional Thus we code re- case, requires hearing. code quired provide notice and In this and a notice hear- no hearing provided." ing notice and no were We to make the use determination. on,12 summary judgment develop- namely, County deprived that verse claim, property depriva ment code we must also reverse sum- them of their and that the injunctive mary judgment process. relief tion made without due was Judge vacate the order of removal. 963 P.2d at 777. Wilkinson requirements, did not address these two addition, 127 In the trial court held the appeals "plaintiffs concluded that County's violation of the specific supporting failed to articulate facts per a nuisance se. The court of constituted process their due claim in [be their motion holding, reasoning that reversed they] specific cause did not set forth undis although of a statute constitutes a violation life, puted liberty, facts that showed a se, per violation of an ordinance nuisance property interest of which the had Harpers urge to reverse the does not. us deprived them." Id. appeals on the basis that a violation code is a class misde- C depriva 130 To make a claim for meanor and thus violates eriminal stat- Utah property process tion of without due question. need not reach that utes. We Constitution, plaintiff the United States per judgment nuisance se on the based both a must show interest and violation, development code which we have deprivation of that interest the state with summary judg- Thus we reverse reversed. required legal process. out After re per on the nuisance se claim and vacate ment complaint viewing Harpers' and motion for damages jury. awarded summary judgment, we conclude that in finding they erred III, DUE PROCESS VIOLATION allege prop sufficient facts to show a erty Harpers alleged T in their first amended interest. Included the motion for complaint "[bly allowing allegation the issuance of was an illegal] building permit illegal supporting affidavit that the dust and other aln operation rezoning during materials emitted of the fa de[ Jfacto use, cility Harpers' enjoyment, public public notice to the hear- curbed without However, safety property. ing, Defendants have harmed with- of their we dis Plaintiffs process agree Harpers' providing out them due of law." with assertion the Coun ty legal process failed to in autho motion and affida- follow vits, rizing facility, process Harpers alleged this harm included and thus their due enjoyment property loss of of their and risks claim fails. to their health and welfare because of the Harpers 1 31 assert that the failed "invidious dust and other matter released process legal authorizing to in follow the during operation facility.

into the air" of the in- facility by issuing construction of motion, by participating in Judge granted building

129 Wilkinson valid stating rezoning" property in a of the with- "Defendants['] ]facto the order acts "def hearing prescribed by as and omissions have harmed Plaintiffs without out notice and a providing process disagree. First we them due of law." The code. We reversed, above, find, County's appeals concluding that action court of as noted regard Harpers allege failed to sufficient facts to in to the authorization issuing in In a form the basis of a claim for the violation of was administrative nature. compliance process rights zoning Fifth certificate of their due permit, simply interpreting Amendment United States Constituti appeals analyzed Harpers' analysis court due under both the state and federal consti- 12. The process analyze claim under federal and not state law the need for us to their tutions obviates Harpers specifically state in their because Lafferty, claim under state law. See State v. 749 complaint summary judgment or motion for (Utah 1988) ("As general a 1239, P.2d 1247 n. 5 they whether relied on the federal or state consti- rule, engage in state constitutional we will not only cited their briefs tution and federal cases in analysis argument analy- unless an for different Harper, appeals. to the court of 963 P.2d at the state and federal constitutions ses under agree 777 n. We with the court of appeals briefed."). Harpers' argument set forth an failure to 200 attorney fees under section 1988.13Har applying it to the development code so, Ambus, doing it

property question. per, (quoting followed at 963 P.2d 780 858 procedures set forth 1376). rights at The civil claim P.2d federal County's interpretation The Harpers code. asserted is a violation of section incorrect, may to be but that is 1983, be found allega which violation arises out of the process claim. It not the basis for due deprivation tion without due County's regard to follows that the actions failed, process Harpers of law. Because as to a "de[ did not amount above, successfully prosecute facto we concluded property, rezoning" of the and thus there claim, process their due court (includ- duty procedures was no to follow the correctly they held were not entitled to attor hearing) set forth in the ing notice and ney fees under section 1988.14 code, amending the code for map, plan. and master We affirm the V. OPEN MEETINGS VIOLATION on the due reversal process claim. previously, a €135 As mentioned Utelite representative attended the December

IV. FEES UNDER SECTION 1988 1988, planning meeting commission from Harpers which came the decision that seek review of the court of affirming trial would be an authorized use on Union decision court's attorney representa property. Pacific denial of fees under U.S.C. Neither subject § 1988. tive's name nor the matter was on agenda, and no mention of the matter Judge granted 133 After Wilkinson Har- meeting. was made in the minutes of the pers summary judgment process on their due omissions, Harpers Based on these filed this claim, Harpers complaint amended meeting claim to void the taken at the actions include a claim for fees under Open for violation of Utah's and Public Meet Judge Harpers' Noel denied claim (the Act), §§ ings Act Ann. 52-4- Utah Code they adequately plead, pri- because "failed to (1998). Harpers summary 1 to 10 moved for Judge ruling, or to Wilkinson's a cause of claim. con 1983," action under were [section] thus 52-4-8, tended it was barred section not entitled to fees under section 1988. The provides which that a suit to void an action Judge affirmed Noel's denial during meeting brought taken must be on the basis that failed to "refer to ninety days within after the action. Utelite rights section 1983 or other civil statute." pursuant moved to the claim rule dismiss (citing 963 P.2d at 780 Ambus v. 12(b)(6) Procedure, of the Utah Rules of Civil Educ., Utah State Bd. 858 P.2d asserting the same timeliness issue.15 (Utah 1993)). ¶34 The court, appeals correctly denying 36 The trial the motion " party 'successfully pros granting Harpers' stated that a must to dismiss and motion, rights qualify a federal civil judgment proposed ecute action'" to found that the provides: period. Though appeals 13. Section 1988 "In action or the court of reversed " proceeding provision to enforce of section ... dismiss, "defendants' motion to see 963 Harper, [of title] court, discretion, 1983 the in its P.2d at the record indicate seems to may prevailing party allow the ... a reasonable the Utelite, not filed such a motion. only County, attorney's part fee as of the costs...." 42 U.S.C. Instead, County's argument the timeliness was (1994). 1988(b) response Harpers' summary judg- written in to ment motion in a entitled "Summit document although note, 14. We the however, court of Support Defendants' Memorandum correct, appeals's analysis conclusion is its is (Lack Standing) Motion Dismiss and in Its to party allege flawed. A must a constitutional Opposition Summary to Motion Plaintiffs' for specifically violation but need not refer to section Judgment." Though appeals the court of attrib- successfully plead 1983 to a violation of it. Har- defendants, uted the to we will refer motion both pers 1983 claim fails here because their constitu- 12(b)(6) to the rule motion as the motion simply tional claim was insufficient. to dismiss. 12(b)(6) 15. Utelite filed a rule motion to dismiss Harpers' for failure to file within the limitations relocation of the was not mentioned the other. Hutchison v. Cartwright, 692 Cf. agenda on either the (Utah the minutes of 1984) ("[NJo P.2d by action December 18 meeting. The court held that county commissioners necessary was the statute of limitations not been "ha[ld] suspension appellant] dismissal [of to application violated due to equitable of the Therefore, become effective. any meetings doctrine," tolling and held that "[the deci- held or by actions taken the commissioners sion of County concerning approval [the] were irrelevant legality of appellant's currently utilization of the site occupied by suspension and subsequent dismissal. His Corporation was made violation of suspension and gave dismissal rise to no provisions Open Meeting Act." claims for open violations of the meetings law."). Thus were not entitled to appeals The court of reversed open on their meetings summary judgment, concluding that the trial claim. court application erred its equitable tolling doctrine. See 963 P.2d at reason, €39 For the same the court of 776-77. It also reversed the trial court's appeals properly reversed the trial court's denial of the motion to dismiss. See id. denial of the motion to Because the dismiss. Harpers seek review of these decisions. We actions at the meeting could not affect the hold that appeals court of correctly re legality of the issuance of the certificate of summary judgment-not versed because the zoning compliance permit, or building Har- trial incorrectly applied court the equitable pers prove could not a set of facts on which doctrine, tolling because, but even were we to prevail to on a claim for violation of the Act. (which assume claim was filed on time we reversing dismissal, the denial of the not), Harpers do were not entitled judg to effectively dismissed the ment on claim aas matter of law.16 We claim. We affirm that dismissal.17 also hold this properly claim was dismissed and address the two motions in turn. CONCLUSION above, 138 As we concluded the is suance of certificates of zoning compliance sum, 140 In we summary reverse judg- building permits is an administrative ment on the code claim and performed action to be admin instruct the court to remand (or representative) istrator his or her trial court with instructions determine inspector, respectively. whether is in fact an accessory County Development 1.6(11), Code use and thus develop- authorized under the 1989). (July 1.9 planning Because the com ment code. We vacate the order of removal. mission not required is participate in the affirm We appeals's reversal of application or issuance of these documents per nuisance finding se and vacate the and because their merely issuance jury an ad award based on it. We affirm the re- action, topic ministrative is not one re versal of judgment Harpers' due quired open to be discussed meeting process claim and affirm the denial of fees and thus does not fall under the require $ U.S.C. finally, And we ments of Again, the Act. if County prop affirm the court of reversal of sum- erly concluded that the facility was an mary autho open on the meetings claim zone, rized use in the issuance of the building and vacate the award of fees made legal injure and did not violation, the Har- for its and affirm ap- Discussion, pers. thereof, or lack peals's at reversal of the trial court's denial meeting does not way affect the issue dismiss, one or the motion to effectively dismissing may 16. We grant note that "we affirm a separate of sum 17. appeal Utelite raised a issue on con- mary judgment any ground cerning application on dealing of available to the 49 U.S.C. 10101 court, regulation with industry. trial even federal if it is one of the railroad not relied on below." Higgins County, v. argument Salt Lake However, it conceded at 855 P.2d oral 235 that savings statute contains a (Utah 1993). barring clause its ret- application roactive to this case. Development premises." a claim main use to state for failure action the cause of granted. (63). Thus, "accessory can be upon whichrelief an definition Code preex- to the user's that attaches use" is one and RUSSON Chief Justice T41 Associate undisputed Utelite It is that isting main use. in Justice coneur Chief DURRANT Justice all of the railroad at use this section opinion. HOWE'S facility was constructed. loading until themselves, Jus- disqualified Having primary facility is therefore the loading The not WILKINS do and Justice tice DURHAM use, accessory use. not an and exclusive herein; Judges DON- District participate EYRE, Jr., ALL- and G. MICHAEL ALD J. Further, undisputed that it is £46 PHIN sat. a noncon- is railroad's use such, the railroad of land. As forming use concurring EYRE, Judge, District expanded any in may extended not be dissenting: at Dev.Code fashion. See Summit majority's with the agree 143 I do not Baxter, 3.7; County v. also Utah see appeals to court of directing the decision (Utah 1981). The construction of the P.2d 61 There the trial court. case to remand this impermissible facility clearly an loading is facts before this undisputed sufficient are expansion. appeals's decision extension affirm the court to authorized. is not loading that {47 that use is The conclusion Utelite's $100,000 industrial addition of a T 44 The undisputed unauthorized is defensible autho loading is not aggregate rock Therefore, of did the court facts. agricultural area as rized in a residential the burden by shifting to defendants not err a conditional use.1 permitted or either a at disputed facts. Defendants' proving from a curso crystal clear even much is That inadequate. dispute of fact is tempt to show within the zoning chart ry glance at affidavits, two each of which They submitted Development But the Code. Summit specific wholly lacking in details and majority that believes facility could indicating loading how the facts Harpers met finding "erred They simply set forth accessory use.2 be an disput establishing the absence burden ruled opinions, recognized a defect legal issue," and accessory use ed facts on Only appeals. sworn by summary judg affirming therefore erred containing specific facts are suffi majority comes to this result The statements ment. documents submitted fact under studying after create a material issue of cient to support motion I Rules of Civil Procedure. rule Utah deciding that none of them "ad judgment, appeals' conclusion affirm the court would accessory facility is an dresses whether to show Harpers have met their burden concluding that property" use on the disputed required facts as the absence the dis "they to resolve are not sufficient 56(c), its and would also affirm rule regarding the accesso putes fact of material were that defendants' affidavits conclusion allegations ry raised use issue create an issue of material insufficient pleadings." denials fact. However, accessory use is "sub- I the in- Accordingly, would affirm €48 custormarily incidental [sic] ordinate use court, by the trial junctive relief awarded occupied by upon the lot and located same develop- clearly anticipated exclusively remedy main and devoted use, says nothing con- affidavit more qualify ." The a conditional In order to as hearing. why loading con- cerning should be requires notice and accessory building. hearing sidered an and no were case, no notice In this provided. P. Anderson verifies affidavit of Franklin The a letter attached to was the author of that he "[Als A. Averett states: affidavit of Eric letter, Mr. Anderson states In that Building affidavit. County Building Official " " customarily to' was, incidental is a 'use my opinion Inspector, it and is accessory "an use." accessory and thus loading apparatus the railroad was an ment code and under Utah Code 17- Ann. (1987).4

27-283

' undisputed support 49 The legal facts

conclusion that loading facility the Utelite Therefore,

not an accessory use. by sending court,

this matter back major- to the trial

ity needlessly prolongs what is already a ten-

year wait for plaintiffs. and other I concur majority's with the decision respect

with process, open due meetings, fees. Judge ALLPHIN Judge concurs in

Eyre's concurring opinion. and dissenting

2001 UT 12 Utah,

STATE of Appellee, Plaintiff

v.

Johnny Anthony MARTINEZ, Appellant.

Defendant

No. 990713.

Supreme Court of Utah.

Feb.

Rehearing Denied June provides: 3. The commissions, "The county The board of county Attorney, any or adversely owner of real estate attorney, any owner of real estate within the Code, affected may a violation of this institute which occurs, violation county may, injuntion [sic], abatement, other any law, appropri- provided by addition to other remedies legal prevent, enjoin, ate action to abate or re- injunction, institute mandamus, abatement, move erection, construction, any alteration, any appropriate proceeding other action or maintenance, or use in violation of this Code." enjoin, abate, or remove prevent, erection, Dev.Code at 1.16. construction, alteration, maintenance, or in violation of this code. 4. Section 17-27-23 states:

Case Details

Case Name: Harper v. Summit County

Court Name: Utah Supreme Court

Date Published: Feb 6, 2001

Citation: 26 P.3d 193

Docket Number: 981493, 981495, 981591

Court Abbreviation: Utah