New Case Summary – Salt Lake City v. Kunz

Posted on: May 10th, 2021 by rplehn

2020 UT App 139 (October 16, 2020)

The Utah Court of Appeals affirmed the dismissal of Salt Lake City’s condemnation case seeking to acquire air rights over defendants’ property as an avigation easement in connection for a runway for one of its airports. While the Court held that the City had extraterritorial eminent domain power to condemn property outside of the city’s jurisdiction for purposes of an airport, the Court nevertheless affirmed the dismissal as the City had failed to strictly comply with the eminent domain procedure as provided in statutory conditions precedent to a taking.

Salt Lake City owns TVA – an airport located in Tooele County. The defendants (“Owners”) own property south of the airport. The City needed to protect open airspace south of the airport for landing and departing aircraft. The City negotiated with Owners to acquire an avigation easement from them, but defendants did not accept the offer. The City thereafter proposed a resolution to the city council to condemn the rights. The motion was heard over three separate meetings. Whereas the Owners were given proper written notice of the first meeting, and were allowed to speak at the first and second meetings, the Owners were only given oral notice of the second meeting; and as for the third meeting, wherein the city council ultimately approved the authority to condemn, the Owners received late written notice, and were not allowed to speak.

Years of litigation followed, and upon competing summary judgment motions, the trial court dismissed the case without prejudice because of the City’s failure to provide proper written notice of and opportunity to be heard at the third meeting, but denied the Owner’s request for attorney fees, finding that a procedural dismissal is not a final judgment on the merits, as the City could likely re-file and successfully condemn upon following the required procedures. Both parties appealed: the City arguing that the court erred in dismissing because the City had substantially complied with the statute; the Owners arguing the City has no power to condemn outside its boundaries, therefore the court failed to grant judgment on the merits and award fees.The Court of Appeals applied the ten-business-day-written notice and opportunity-to-be-heard requirements of Utah Code Section 78B-6-504(2)(c) to each public meeting. The procedures and prerequisites prescribed in the eminent domain statute become a matter of substance, and demands strict compliance. Substantial compliance – through actual notice and prior opportunity to be heard –  cannot be read into the statute because of the weighty matter of the government’s immense power to deprive an owner of substantive private property rights; similarly, the Owners are not required to prove prejudice in the failures. As to the Owner’s claims, the Appeals Court held that the City – as the owner of an airport – has a grant of eminent domain power for a clear and explicit purpose under Utah Code Sections 72-10-413 and 72-10-205, which are construed liberally in favor of extraterritorial power to condemn. Therefore the procedural dismissal was proper, and Owners were not entitled to an award of fees under any applicable law.