Jack F. SCHERBEL, Plaintiff and Appellant, v. SALT LAKE CITY CORPORATION, Defendant and Respondent.
No. 19633.
Supreme Court of Utah.
May 3, 1988.
Rehearing Denied May 25, 1988.
755 P.2d 897
DURHAM, Justice:
Roger Cutler, Judy F. Lever, Bruce Baird, Salt Lake City, for defendant and respondent.
DURHAM, Justice:
Appellant Jack F. Scherbel appeals the district court‘s dismissal of his complaint challenging the Salt Lake City Council‘s decision to deny zoning approval of his application to construct a condominium complex. Appellant argues that the City Council did not have authority to render its decision, that he had vested rights to a building permit under the zoning ordinance that existed at the time of his original application, and that the community group opposing his application before the City Council did not have standing to pursue the challenge. The district court denied appellant‘s complaint for extraordinary relief after a trial on the merits. We affirm the trial court‘s action, but disagree in part with its analysis.
Appellant owns, or has an option to buy, four parcels of property at the southeast corner of Second Avenue and “E” Street in “the Avenues,” a historical district of Salt Lake City. He proposed a number of building projects for that property over several years, and on October 24, 1979, he began the process of obtaining a building permit for a 35-unit condominium project.
Pursuant to
In May of 1979, before appellant‘s preliminary application to the HLC, the structure of Salt Lake City‘s government was changed. Prior to 1979, Salt Lake City was governed by a board of commissioners headed by the mayor. However, with the passage in 1977 of the Optional Forms of Municipal Government Act,
The HLC in this instance recommended that the Planning Commission deny appellant‘s application for the 35-unit complex. Nonetheless, appellant sought the Planning Commission‘s approval of the project by submitting a revised plan for a 32-unit complex. The revised plan was submitted directly to the Planning Commission even though the HLC had not been given the opportunity to review it.2 The Planning Commission approved the revised plan. A Utah corporation made up of Avenue residents, the Greater Avenues Citizens Council (GACC), requested reversal of the Planning Commission‘s decision in a letter to the mayor of Salt Lake City.
Under
The City Council accepted the mayor‘s delegation and, upon hearing the appeal, reversed the Planning Commission‘s decision and denied appellant‘s preliminary application for the 32-unit project. Appellant then filed an action for extraordinary relief in district court, arguing that the City Council was not properly authorized to hear the appeal. Appellant also argued that his project was entitled to a building permit under the zoning ordinance that had been in place at the time of his original application. On February 19, 1980, during the time his applications were pending, the City Council approved a new zoning ordinance which downzoned appellant‘s property from “R-6” to “R-2H.”3 At the time he filed his complaint for extraordinary relief, appellant also obtained an injunction preventing publication of the “R-2H” zoning ordinances. On March 3, 1980, he filed yet a third application with the HLC for an 18-unit project. This third project and a fourth alternative, a 24-unit project, were evaluated by the HLC on March 17, 1980. Appellant later abandoned them when the injunction was lifted and the “R-2H” zoning ordinance became effective.
We disagree with the trial court‘s analysis permitting the City Council to hear
The optional form of government known as council-mayor form vests the government of a municipality which adopts the form in two separate, independent, and equal branches of municipal government.
In Martindale, we analyzed this statute and held that the approval of subdivision plots by the mayor of a city under the council-mayor form of government constituted an exercise of executive, not legislative, power.
[W]e are compelled to conclude that [the statute] in fact provides for the absolute separation of executive and legislative powers. A fortiori, the 1977 modifications of the Act specifically vest the whole of the executive powers in the Mayor and only the legislative powers in the Council, and we consequently hold that the council-mayor form of government as adopted by Logan City is a true separation of powers form of government.
As in Martindale, we hold that the authority to resolve zoning disputes is properly an executive function rather than a legislative one. Concomitantly, the passage of general zoning ordinances and the determination of zoning policy is properly vested in the legislative branch. “Legislative power, as distinguished from executive power, is the authority to make laws, but not to enforce them or appoint the agents charged with the duty to make such enforcement. The latter are executive functions.” Id. Thus, a city council under the council-mayor form of government may not hear appeals from zoning decisions of a planning commission.
In the interest of clarification, we will determine the proper body to hear zoning appeals from planning commission under the council-mayor form of government. In Chambers v. Smithfield City, 714 P.2d 1133 (Utah 1986), we addressed an analogous question, i.e., the procedure for granting zoning variances. Under Smithfield City ordinances, a variance request went first to the Board of Adjustment and the Planning Commission for a recommendation. The recommendations were then submitted to the Smithfield City Council, which made the final decision concerning the variance. We analyzed this procedure and held:
This procedure does not comport with the provisions of the enabling act.
U.C.A., 1953, §§ 10-9-1 to-18 (1973 ed. and Supp.1985). That Act provides that the legislative body of a city (in this case the city council) has the right to regulate zoning:§ 10-9-1 . However, in order to exercise that power, the legislative body shall provide for the appointment of a Board of Adjustment.§ 10-9-6 . The Board is to be an appellate body for any person aggrieved by a zoning decision.§ 10-9-9 .Section 10-9-12 sets forth the powers of the Board.
Id. at 1136 (emphasis added). We have thus previously construed the act which grants zoning power to cities and towns as delegating the authority to hear appeals of any zoning decision to the city board of adjustment.4 We therefore hold that the board of adjustment is the proper body to hear zoning appeals from the planning commission under the council-mayor form of government.5
The question of when rights to a building permit vest under a zoning ordinance is not a novel one. In Western Land Equities, Inc. v. City of Logan, 617 P.2d 388 (Utah 1980), the plaintiffs submitted a preliminary plan to the Logan City Planning Commission in much the same manner as did appellant in this case. The Planning Commission discussed the subdivision project several times over four months and eventually denied permission. The plaintiffs appealed the unsatisfactory decision to the Municipal Council and, after another unfavorable decision, filed a complaint in district court. After the complaint was filed but before it was resolved, an ordinance was passed which changed the zoning in the plaintiffs’ area and would have prohibited the plaintiffs’ project. The plaintiffs sought a determination, as a matter of law, that they had a vested right to develop a subdivision under the earlier zoning ordinance. We held
that an applicant for subdivision approval or a building permit is entitled to favorable action if the application conforms to the zoning ordinance in effect at the time of the application, unless changes in the zoning ordinances are pending which would prohibit the use applied for, or unless the municipality can show a compelling reason for exercising its police power retroactively to the date of the application.
Id. at 391. Accordingly, we must determine, first, whether appellant‘s application conformed to the zoning ordinance in effect at the time it was filed, and second, whether the proposed zoning changes were pending at the time he made his application. Id. at 396.
The trial court found, after a review of the schematic conceptual drawings for the various projects and revisions submitted by appellant, that (1) there were violations of “R-6” zoning ordinances regarding sideyards and rearyards, (2) there was an unresolved ownership conflict regarding a right-of-way, (3) there was an undisclosed lack of ownership of one parcel, (4) variances from the Board of Adjustment needed to be obtained before zoning approval of the projects could be granted due to problems with setoffs, sideyards, and other violations, and (5) a complete zoning review was not possible due to the preliminary nature of the drawings. The court found specifically that “[t]he drawings for each project were otherwise too preliminary and incomplete for full zoning review, and ... such drawings could not be used to support zoning approval which is a prerequisite to the issuance of a building permit.” In fact, the trial court found that appellant never filed an application with the City Building Department for a building permit. Under
In addition, the trial court found that the zoning change was pending prior to appellant‘s application and that appellant and his architect were aware of the pending change. Allowing persons to obtain vested rights under a zoning ordinance merely by filing preliminary and incomplete papers would defeat the very purpose of zoning regulations. Because appellant fails both parts of the Western Land Equities test, he has no vested right to build under the “R-6” zoning classification; the city has no duty to demonstrate a prevailing public interest as required in Western Land Equities.
Appellant also challenged GACC‘s standing as a party to a zoning appeal. This issue is moot in light of our holdings herein. We affirm the trial court‘s ruling that appellant did not have a vested right under the “R-6” zoning classification. We reverse the determination that the city council is the proper body to hear appeals from planning commission decisions. Those appeals must properly go to the board of adjustment.
Notwithstanding our ruling regarding the appeals process in zoning matters, we affirm the trial court‘s denial of extraordinary relief to appellant. Appellant was not entitled to the mandated issuance of a building permit, the relief he sought in his complaint. He had no vested interest in such a permit or in any zoning classification and must now comply with all current zoning restrictions and procedural steps necessary to develop his property.
STEWART, J., and RICHARD C. DAVIDSON, Court of Appeals Judge, concur.
HOWE, Associate Chief Justice, concurring and dissenting:
I concur in affirming the judgment, but dissent from the holding that an appeal from the Planning Commission is not taken to the Council but to the Board of Adjustment. The Planning Commission is an advisory body to the Council,
HALL, C.J., concurs in the concurring and dissenting opinion of HOWE, Associate C.J.
ZIMMERMAN, J., having disqualified himself, does not participate herein, DAVIDSON, Court of Appeals Judge, sat.