Kilgore Companies v. Utah County Board of Adjustments

February 7, 2019

Utah Court of Appeals

February 7, 2019

2019 UT App 20 (Click for text of opinion)

The Utah Court of Appeals affirmed the district court in setting aside a county’s denial of a conditional use permit to build silos that were taller than otherwise permitted by ordinance.

Kilgore operates an asphalt batch plant in a mining and grazing zone of Utah County. County ordinance provides that the maximum permissible height of any structure shall be 40 feet unless a conditional use is approved for taller, unoccupied structures. There is no regulated limit on the number of structures. Kilgore applied for and was approved for a conditional use permit for three silos up to 100 feet. When Kilgore later applied for two additional 65-foot silos, a meeting with public comment was held where community opposition was voiced against the plant, generally. The board denied the application, finding additional heights degraded surrounding property values and that it was not shown that the application would not degrade the public health, safety, or welfare.

Kilgore filed a petition to review the denial, and the trial court determined the decision was not supported by substantial evidence, and was therefore arbitrary and capricious. The court concluded there was insufficient evidence presented to the County to distinguish between public health, safety and welfare, and decreased property value affected by the overall plant and the conditional use requested in the application. The County appealed.The Court of Appeals reiterated the trial court in pointing out that Kilgore was not limited in the number of silos it could operate, only in the height of the silos, and no evidence was presented to suggest that taller silos would have a greater impact than additional shorter silos. Because Kilgore could have permissibly achieved the same result with additional, shorter silos, there was no causal link between the testimony offered in opposition to the plant’s operation and the specific condition of height. Because the additional height of the silos would not have a negative impact on the public health, safety and welfare or surrounding property values, the denial was not supported by substantial evidence.