New Case Summary–LJ Mascaro Inc. v. Herriman City

Posted on: August 31st, 2018 by jimwright

Utah Court of Appeals

June 21, 2018

2018 UT App 127 (Click for text of opinion)

The Utah Court of Appeals upheld Herriman City’s (“Herriman” or the “City”) denial of a request for nonconforming use status relating to the operation of a topsoil business.

The Mascaros have operated a topsoil business on property they have owned since 1979. Herriman annexed this property in 2009. Under Herriman’s zoning code, the Mascaros’ topsoil business operations required a conditional use permit. The Mascaros believed that they were legally operating the topsoil business at the time Herriman annexed their property and requested that Herriman make a finding that they had established a legal nonconforming use. Herriman’s zoning administrator denied this request and the planning commission upheld this decision. The Mascaros appealed to Herriman’s appeal authority, which found that while there was sufficient evidence in the record to have decided in favor of the Mascaros, the record contained enough evidence to uphold the planning commission’s decision. The Mascaros then appealed to district court and the court granted summary judgment in favor of the City.

On appeal, the Utah Court of Appeals affirmed the district court’s award of summary judgment to Herriman. The Court of Appeals upheld the district court’s determination that the appeal authority did not act arbitrarily and capriciously because its decision was supported by substantial evidence in the record. The court also concluded that the district court correctly determined the appeal authority’s decision was not illegal because the Mascaros failed to prove that they had legally established the topsoil business prior to Herriman annexing the property.