In Re the Disconnection of Certain Territory From Highland City
668 P.2d 544
Utah
1983
Check Treatment

*1 In the Matter DISCONNECTION FROM

OF CERTAIN TERRITORY

HIGHLAND CITY. 18191.

No. of Utah.

Supreme Court

July 1983.

disconnection; (2) failing to consider all the trial; produced (3) at refusing findings either to amend its and the order of disconnection or to grant City a new newly (4) trial on discovered evidence. Ad- ditionally, argu- contends in oral ment that amendments enacted after the district court’s ret- decision new roactively require a trial. is a third-class Appellant Highland City city, located in northern be- Utah Alpine tween on the north and American Fork on the south. It contains a total of 2,142 acres, approximately including the 131-acre area contested here. disputed acreage rectangular The forms a peninsula extending part east of the main This to disconnect was City. 2, 1978, filed June the owners of the 131 Realty Company, acres: Gibbons Light Company, Power and and various the Hayes family. members of Gibbons which owns or controls Realty Company, had made known its property, most of this extrac- begin gravel intention to sand and products a tion and to establish concrete if the area were dis- plant on its county returned to control. connected and petition, largely be- City opposed opera- fears that such cause of its residents’ seriously would threaten tions of life. trial took evidence at

The district court 29, 1980, and entered a February 11 and August memorandum decision on be disconnected. A that the area should appointed in accord- commission was then U.C.A., 1953, 10-2-502, which ance with After receiv- public hearing. a conducted Vernon B. Lake Romney, City, Salt report, ing the commissioners’ appellant. on November court entered an order to disconnect. granting Roe, Bryce City, E. Lake John C. a new trial or After denial of its motion for Backlund, Provo, respondent. ap- took this judgment, peal. OAKS, Justice: gov- statutes equity. is an 1. Justice and appeal from an order of discon- that a district Appellant Highland City (also erning

nection. Town) may known as a new order land disconnected Highland seeks tri- al, if it finds that the arguing municipality the district court erred in “[1] by majority (1) signed holding justice equity require [for disconnection] regional system, sewer tied into a territory- quently voters of the concerned and [2] allegations which, at the time of trial, served an ele- petition are true and [3] justice and mentary school and some homes from a ... to be dis- equity require the western side of the trunk line on municipality connected from the area. No lateral remote from the contested into had been extended *3 sewer connections area, plans were no and there the contested are requirements undisput- The two first to so. do (nor any ed: no voters other concerned, territory persons) reside in the found that law enforce- The district court the constitute all of the owners petitioners whether the con- would be the same ment the are property in and part the part county area was of tested to file a for therefore entitled dis- would City and that disconnection 10-2-501, connection, does City ex- any with added City not burden the finding not the district court’s challenge (The has City enforcement. pense for law in the allegations are true. but contracts with force of its own police no However, City the does contend that the deputies to the and his Utah Sheriff concluding jus- district court erred in assistant as the marshall and serve equity require tice and disconnection. marshalls.) The court found that discon- for City’s expense reduce the nection would The determination of what consti eliminating its contractu- protection by fire “justice equity” tutes and turns on the facts (The area. obligation al for the contested of each individual case. Once the district but obtains City department, has no fire court has ruled on a for disconnec protection Alpine fire under contract tion, un findings will not be disturbed garbage dispos- no City.) City provides The clearly less erroneous. In re Disconnection al; service the residents receive this Corpo and Restriction of the with a private company. contract Draper, rate Limits of remove the Although disconnection would Bank & Trust Continental Co. City’s zoning from the au- 1242, 1247 contested area Farmington City, aegis of the place it under the thority We have concluded that the find zoning the court found that ings county, in this case are not district clearly erroneous. would remain property restrictions on the The entire area is vacant and unimproved Finally, the same. essentially a except lights, pond, picnic areas. would create found that disconnection The in the high- roads area are two within the peninsulas no islands ways by' maintained the state and some expen- would make it more boundaries that private roads built and maintained the municipal serv- difficult to sive or City owners. The has zoned after disconnec- remaining to the area ices area as residential property, but none has tion. been purpose. used for that There are no in by sufficient evidence Being supported sidewalks and no subdivisions platted on record, findings of these was clear- map. Although none City City authorities testi- total, an am- they provide fied that the wanted erroneous. In City ly to use the area as court’s conclusion basis for the district park cemetery, plan ple no master had the dis- “justice equity” required officially set it aside for such uses. disconnected from the territory to be puted The district court found that there were municipality. publicly operated no owned and water Many quality of life. disputed mains or water services in the 2. Evidence area; they testified that City no water At the witnesses for City system. has commenced, further industrialization of proceeding opposed time this the were that if the contested area City1 had no sewer subse- City system. City 200,000 annually. existing operation rock about tons of ash 1. An within the extract- ed Fullmer, were disconnected and used sand P. 376 33 Utah extraction, gravel City’s 43, 45-46, 92 P. (1907); Young 768-69 reduced, air and noise and water would be Lake Utah 67 P. increase, property dust would values would threatened, lifestyles the residents’ Legislature enacted specific damaged. neigh- would be Witnesses for economic criteria practical applied to be testified that boring intervenor cities by the courts in re- making determinations adversely cities would also be affected. lating to disconnection of areas from munic- concerning testified vari- City’s mayor ipal corporate limits. Disconnection of Ter- ous uses the intended make of the 10,1971 ritory Municipalities, ch. future, in disputed including area criteria, Laws 26. We have held that these line, park cemetery, and a a sewer a water (as 1977) slightly appear which tower, holding pond. and a He also stated 10-2-503, “are relevant in determining *4 disconnected, were that if the area it would whether a disconnection would be consist- for the City protect be difficult justice prin- ent with and and sound equity health, peace, safety of its residents. re ciples city planning.” In Disconnec- The district court heard all of this evi- tion of and Restriction of the Territory dence, but concluded that it much of was Corporate Draper, Limits of 646 P.2d at irrelevant to a determination of whether case, 702. In the district court present granted. disconnection should be The court interpreted (which these criteria ruled that only legally “the rele- practi- are consistent with the economic and vant in these is proceedings that which re- cal specified criteria in the earlier cases lates to the criteria for disconnection as set effect, above) cited as in constituting, an forth 10-2-503.” The City [in Section] “justice exhaustive definition of the ruling terms this an erroneous that can only in 10-2-502. equity” specified standard § be corrected by a new trial. That with our interpretation is consistent Historically, statutory criteria application of statute cases decided disconnection of from a munic- Id.; adoption. since its Continental Bank & ipality required by “justice was that it be Farmington supra. Trust v. Co. equity.” U.C.A., 1953, (now 10-4-2 § opposition, In relies on statu- codified at 10-2-502 (Supp.1981)). Deci- language requires that the district tory interpreting sions that standard have uni- court to consider the effect of disconnection services, formly turned on what municipal services, other municipal “among on various improvements, or other benefits the territo- The City factors.” 10-2-503. contends ry received from the the tax city; base and resi- the concerns and desires its territory provided revenue the to the city lifestyle dents constitute such and the impact financial of its loss dis- factors,” “other which the district court connection; the effect of disconnection on making therefore to consider in required city’s continued growth, financial decision. health, administration; and the eco- nomic interdependency of the city in in have often stated We territory. Disconnection of “care must statutory language, terpreting Layton 241, City, 27 Utah 2d 494 P.2d light the words used in be taken to construe (1972); 948 Copper Corp. City Kennecott legislation.” of the total context 60, of Bingham Canyon, 18 Utah 2d 415 Utah, 1268, McDonald, 615 P.2d Cannon v. (1966); P.2d 209 Howard v. Town of North Bishop, (1980); 1270 Crist Lake, 278, 7 Utah 2d 323 P.2d 261 v. Aetna 196, (1974). also Osuala 198 See Peterson, 212, 215-16, re In 92 Utah 242, P.2d 243 Casualty, Life & 608 1195, 1197 re Chief Con- such as language Co., Where Mining solidated 71 Utah 266 P. together specif (1928) disconnection); “other factors” is used (denying 1044 Chris- Clearfield, municipal ic the list of services tensen v. Town of 66 Utah words like so these sec- language, 10-2-503, ed the underscored familiar rules of contained in § as follows: sociis, pertinent part read in “it is known tions now (noscitur a construction associates,” ejusdem generis, from its of discon- question 10-2-501.... gener- kind”) require “of the same be tried before nection shall analogous to a sense al words be restricted cases as civil in the same manner court proof Whitehead, Lark v. specific to the words. burden are tried.... peti- proceedings 557, 559 343, 345, 502 P.2d 2d is on the disconnection preponderance Giles, 13 Utah 2d (1972); Eeathman v. is tioner and 369-70, (1962); Suther- evidence. Construc- land, 2A Statutes Statutory shall consider court ... The. 1973); ed. 47.16, (C. 4th tion 47.17 Sands §§ includ- relevant factors all [among other] 331, Statutes §§ C.J.S. ing. the effects not limited but to. Hence, factors” the district the “other following: on the disconnection 10-2-503 under required is to consider adjoining prop- community whole, as a or city’s abili- bearing factors are those erty owners, streets existing projected to the services ty to continue to water water mains and public ways, listed specifically to those residual area akin services, services, mains and sewer sewer ability, considerations related to or on enforcement, other mu- zoning and law base, revenue, irregular as tax tax such and whether or not nicipal services city boundaries. or un- will result in islands varied-shaped penin- reasonably large *5 contrary to interpretation is not projecting or land masses within sular munici that the officers of the the direction municipality into the boundaries person “may appear interested pality any be discon- the is to from which of granting and contest the before the court nected. by presenting the for disconnection deem relevant.” they the evidence as amendments, appear to which These merely This statute assures litigation,3 this relationship to have some heard on points fully that all of view will be 1983, eighteen May became effective the question the of disconnection and in this challenged after the decision months any court will have unrestricted access to Nevertheless, argues the appeal. which may possibly and all information and re retroactively the amendments required criteria it is bear on the Con trial. It relies on Okland quire a new But, the widest apply. having received Commission, v. Industrial struction Co. evidence, range of the court must possible (1974), in which 210-11 nevertheless reach its decision on the basis policy against judicial the we stated of the considerations statute makes rele where application no laws “has retroactive proceedings.2 vant to disconnection only deals or amendment the later statute as to how amplification with clarification or Retroactivity legislation. 3. of recent prior event, been understood should have any City argues, the district the law However, amend court’s decision was erroneous because of to its enactment.” merely “clarify” do not ments in this case amendments 10-2-501 and 10-2-503 §§ law should the earlier passed “amplify” in the 1983 how Legislative General Ses- alter the sub They House Bill “An Act .. have been understood. sion. titled . by governing law Providing for a Burden of Proof and Addi- stantive court must new factors Hearings creating tional Criteria in for Disconnec- decision. making its of add- consider Municipality,” tion health, sponsored Representative safety, The bill was Residents’ concerns for their 3. 2. values, who, pur- LeBaron, property of life can be at the time Donald R. through zoning powers here, serving challenged sued conferred proceedings was also -18; See 10-9-1 to §§ cities and counties. mayor Highland City. of as 17-27-1 to -27. §§ east, amendments constitute fundamental on the forming a further change in the substantive which law on extension of that same peninsula. When both sides relied in preparing present- the district court entered its findings of ing their cases and which the district court fact and conclusions of law and its final applied reaching its decision. As we said order of disconnection on 4,1981, November J.P., Utah, of a similar amendment in In re on the basis of the evidence at trial 1364,1370 (1982), “Changes n. 4 report, commission’s the court did not men- within magnitude this do not fit the rela- tion the annexation of Kjar property. tively narrow exception” illustrated Claiming “newly evidence,” discovered Okland Construction case. Nor is this a then moved for a new trial or an case like Pilcher v. Department State judgment amended under Utah R.Civ.P. Services, Utah, (1983), Social 663 P.2d 450 59(a)(4) in order to present evidence of its Department State Social Services changed boundaries. The City contended Higgs, (1982), 656 P.2d 998 or the that, after Kjar annexation, disconnec- cite, they cases where changes “a statute disputed tion of the area would leave the only procedural by providing law a differ- Kjar property island, as an completely sepa- ent mode or form of procedure for enforc- rated from the rest of City. The mo- ing Pilcher, substantive rights.” tion for new trial was denied. Here, at 455. amendment dealt the substantive rights parties be- To be entitled to a new trial or an cause it changed the substantive criteria for order under Utah R.Civ.P. decision. 59(a)(4), “[njewly the movant must show “The well-established rule is that not, discovered evidence ... which he could statutes not expressly retroactive should diligence, with reasonable have discovered applied J.P., prospectively.” at produced the trial.” The mo cited; 648 P.2d at 1369 n. and authorities tion meet requirement.4 did not this U.C.A., 1953, 68-3-3; 73 Am.Jur.2d Stat- utes There no being provision *6 Newly discovered evidence must re to the contrary in this circumstance and the late to facts which were “in existence at the being amendment substantive rather than Campbell time of the trial.” v. American procedural, governs, rule 926, (2d 116 F.2d 928 Foreign Corp., S.S. the 1983 amendments do not to this motion for a new trial or Cir.1941). A case. be based on judgment cannot 4. Newly discovered Finally, evidence. Patrick subsequent to trial. occurring facts the City contends that the district court Sedwick, Alaska, 169,177 (1966); 413 P.2d v. erred in refusing either to its find- amend Ambler, of Honolulu v. 1 ings and the order of or to 589, 592, 92, (1981); 623 P.2d 94 App. Hawaii grant a new trial on newly the basis of Loan Asso Savings Fox v. First Western & discovered evidence annexa- ciation, 469, 473-74, 424, 86 Nev. tion of property adjoining the contested Hoffman, (1970); 207 Neb. 427 Sullivan v. area. 166, 173, 707, (1980). 296 N.W.2d 712 If the otherwise, rule were there would be no end 17, 1981,

On September after year over a For litigation. Campbell to v. American the court’s decision that be the area should eign Rogers Ogg, v. 101 disconnected, Corp., supra; S.S. advised the court Ariz. 594 In re Mon it “Kjar had annexed the property.” son, 198, 201 180 Neb. 146 N.W.2d property, approxi- which contained acres, mately (1966). 80 adjoined the disconnected requirement

4. Our decision on this makes it ble that with it there would have likelihood Jensen, unnecessary requirements Gregerson v. to discuss other un- been a different result.” 59(a)(4), der rule such as that the “be 372 P.2d of sufficient substance that there is a reasona- case, In this the annexation of was a fact that occurred

Kjar property ROUNDY, Plaintiff and Elaine over a was submitted to the district Respondent, memoran year entry after trial The court’s dum decision disconnection. Coombs, Anthony Alvey COOMBS and Dot to grant reopen refusal new trial or Coombs, wife; Larry husband not judgment that basis was amend Coombs, Executor of the of E.H. Estate as to such “a manifest abuse of discretion” Appellants. Defendants and Cedar require reversal. v. Town of Doty Hills, Utah, P.2d No. 18208. Care, Health Schmidt Intermountain Inc., Supreme Court of Utah. Judgment respon- to affirmed. Costs July 18, 1983. dents. DURHAM,

HALL, C.J., and HOWE and

JJ., concur.

STEWART, (concurring) Justice: all

I concur in the majority opinion However, I

respects. important think it

add one additional observation.

U.C.A., 1953, that a requires 10-2-502 signed by disconnection be in the

majority voters

territory to be In the instant disconnected.

case, the area to was not disconnected

inhabited, signed was not

by any registered ques- the area in voter of reason,

tion. For that appear it would

me that the for disconnection not valid on this

probably its face. I make because

point simply my impor- view it is

tant that the con- disconnection statute be to support

strued sound principles

planning. requirement peti- signed by

tion be a majority

voters who live in no doubt the area was to prevent

intended absentee landowners seeking city planning circumvent zoning laws by having odd chunks

land disconnected city. from the case, however, appel-

In the instant has failed to appeal,

lant raise the issue on pursuant accepted standards review, us.

judicial is not before issue