Herr v. Salt Lake County
525 P.2d 728
Utah
1974
Check Treatment

*1 Affirmed. the view fact appeal

there is cross-appeal, an and a the

parties shall bear their own costs. HENRIOD, TUCKETT, Nemelka, Carl

ELLETT Salt Lake JJ., Atty., and concur. Co. J. Lewis, Kent Deputy S. Salt Lake Co.

Atty., City, Salt Lake for defendants and appellants. Campbell,

Robert Jr., S. R. G. Grouss- man, Davies, and City, Glen E. plaintiff for respondent. HERR,

Thomas Plaintiff F. ELLETT, Justice: Respondent, Plaintiff owns approximately 28 acres of corporate COUNTY, body SALT LAKE land in County. On or about Utah, politic State of et 22, 1972, November application he made Appellants. al., Defendants County Salt Lake Planning Commis- No. 13549. for authority sion to construct a condomin- Supreme Court of Utah. village. ium Planning held Commission Aug. application on the and on

February unanimously approved application subject subsequent setting forth of certain conditions to be im- posed upon development.1 the unit Feb- ruary 21, 1973, an appeal was taken to the Board of Commissioners of Salt Lake County Planning from the order of the community residents of the wherein the condominium was to be con- structed. The was heard March 1973, and was taken under advisement un- til time reversed Commissioners and overturned unanimous decision of the Com- mission. brought an in the

Plaitniff then action pursuant to Rule 65B (b)(3), District Court U.R.C.P., and vacate the and to com- Commissioners pel permit granted them issue the The trial court Commission. Commis- reversed the order a con- application for granted sion development. planned ditional use appeal was judgment that this is from that taken. connections, fire roof, sewer slope water building, height as the

1. Such ridge line, protection, nearness

729 Co., (1964). 15 2d 392 P.2d 40 matter is the Utah The issue involved this Involved in that case was an ordinance of interpretation placed 22- Section to provided which that an 31-2(6) (b) of the Revised Ordinances aggrieved party might from a County, reads: of the to Planning Commission the Board Commissioners, The Board of Adjustment ninety days within after the decision of proper review of the decision. court held that This Commission, affirm, re- may ninety-day period jurisdictional, say- verse, for further alter or remand ing: any action taken consideration said and shall make 90-day The limitation of days of the (7) such decision within seven designed Sec. 17-27-16 is to assure appeal. [Emphasis of the add- speedy appeal proper tribunal ed.] grievance party may a have is that who question The Does the shall is: word adversed a an adminis- decision of quoted above mean that the decision must agency. trative The evident purpose of days be rendered within seven of the hear- expeditious is assure the statute advisory is ing, merely or it not does orderly development a com- require any par- rendered decision to be munity, ticular time? think We Commission should meaning The word shall is ordi- says abide own ordinance which it its/ narily that of command. defined in is days shall make its decision within seven Dictionary the American Heritage as fol- do, after the if hearing, and it fails so to Compulsion, lows: “2. . d. it loses its jurisdiction the matter. must, statutes, deeds, the force of legal other documents.” The United judgment States The district is court Supreme Court between the affirmed. No costs awarded. may words and shall in the case of Ander- Yungkau, v.

son 329 U.S. 67 S.Ct. HENRIOD and 91 L.Ed. 436 (1946) as follows. TUCKETT, JJ., concur. ordinarily is word “shall” “lan- CROCKETT, guage Zerbst, (dissenting) Escoe : command.” v. Justice 55 S.Ct. 79 propositions persuade Three combine to L.Ed. 1566. And when the same Rule me'that the decision of Board of Coun- “shall”, “may” uses both the normal ty Commissioners should be voided on inference is that each is used in its usual procedural grounds. (In view dis- being permissive, sense—the one act position case, of this consideration mandatory. other merits rejecting of their decision construc- The County reached.) tion of the is not Commission did not condominium act within seven took eleven but tribunal, First: requirement A that a after the hearing attempted it before functions, judicial performing “shall” act reverse the Planning Commission. Did usually within a is stated time considered thereby it lose jurisdiction to make its directory mandatory; to be rather than ruling? The thought trial that court it jurisdiction is negation before did. justified delay in making because of This court problem decision, had a related be- prejudice party complain it in fore Lund v. Cottonwood Meadows ing Relating must be shown.1 v. Lynch Coviglio, 983; Equaliza 727; Utah P. 17 53 2d Board of Koehn v. State Sperisen Heynemann, Cal.App.2d 228, tion, etc., Cal.App.2d v. 149 333 P.2d 125 Inspector Building (1959) ; 308 P.2d Cullen Industrial Peak v. Accident Com Attleborough, mission, Cal.App.2d 526, of No. Mass. 234 N.E. P.2d proposition, deprive there an abundance ments does not cases the tribunal of jurisdiction.5 whether dealing with word especially This so absolutely manda should be construed relatively is of short dura- directory. tory, merely or examin here) tion it was (as likely and thus more ing them it will be seen that there can be due to inadvertence than to intentional meaning no that the and intent doubt true neglect responsibilities failure or for a *3 determined from the context period substantial of time. purpose in which the word is used. Second: The decision of the This is in of illustrated the case Escoe v. Commission was in fact announced within Zerbst,2 opinion on which the main relies seven work hearing. was part. The court stated: 8, Thursday, held on and the , language it is the Monday, of decision was made on March 19. command, significant, Therefore, though a test days, Saturdays if the non-work Doubt, controlling. (Citations excluded, omitted.) Sundays, decision however, dispelled pass we from actually was made on the seventh work day. words alone to a view ends and Since Ordinances of (Emphasis added.) aims.3 County provide no definition for this com- putation time, this action applying fundamental rule of properly Commission could regarded as construction, signif- courts have seen operational not unreasonable construction necessity icant difference between the ordinance which allows seven compliance prescribed time limitations in which to make the decision. themselves, parties as between from limitations the tri- Third, finally: delay Such as oc- rendering bunal in its judgment.4 With curred, Monday, Thursday from respect latter, in considering to the purely procedural irregularity from ordinances, purposes of such statutes or any way was or could be in no one interpreted generally the courts have such adversely anything affected. From I have requirements simply regulations for the discover, been able to where there has been orderly and convenient conduct of a short in a decision such a tribu- business, precedent and not as a condition nal, shpwing prej- the absence of validity done; to the of the acts and have parties interest, udice the authori- uniformly quite therefore held that failure invariably ties have declined set aside compliance require- strict with these judgment.6 such an order or brevity In the interest these citations are City 4. Davidson v. Board of Education of variety limited to an Ky. illustration of the wide Pikeville, 7 S.W.2d 1056. ap- of tribunals to which this rule been has plied. Building Inspector 5. Cullen v. No. Attlebor ough, supra, footnote 2. 295 U.S. S.Ct. L.Ed. 1566. above, particularly Sperisen See footnote Richbourg 3. See also Motor Co. v. United Heynemann. States, 50 S.Ot. L.Ed. 1016 to the effect. same