Utah Supreme Court
The Utah Supreme Court held that a third-party’s statutory right to appeal a land use decision did not inherently include a due process right to present evidence at the underlying administrative hearing.
San Juan County granted a conditional use permit (CUP) to a wind farm, and following complaints by a group of neighboring landowners–Northern Monticello Alliance (NMA)–the Planning Commission held a meeting on the noncompliance issues. At the hearing, wherein NMA did not participate, the Planning Commission decided not to revoke the CUP, and NMA appealed. At the local appeal, the County Commission did not hear arguments or take evidence from NMA, and upheld the Planning Commission’s decision not to revoke. Upon judicial review, the district court remanded to the County Commission, instructing that NMA be given the same opportunity to present arguments on appeal as the CUP-holder, but on remand, the County Commission limited NMA’s presentation to evidence already in the record.
The Utah Court of Appeals ruled that NMA had a statutory right to appeal under the County Land Use, Development, and Management Act (CLUDMA) as an “adversely affected party,” but was denied due process when it was prevented from presenting evidence at the revocation hearing. The Utah Supreme Court agreed that NMA had a statutory right to appeal as an adversely affected party, but disagreed that this right to appeal, coupled with generic language in CLUDMA to “respect the due process rights” of participants to the appeal, meant that NMA had a due process right to be heard by the Planning Commission.
Procedural due process claims require a deprivation of a protected interest in property, which courts have declined to find where the government has significant discretion whether or not to take action. Because the County’s zoning ordinances granted broad discretion as to whether or not to revoke a CUP, even where conditions have not been met, no protected interest can be created in such a discretionary process. The Court did, however, leave a door open that “[t]he addition of mitigating conditions on a CUP, specifically intended to protect certain property owners, may in some cases provide landowners with something more than just a ‘unilateral expectation’ of a benefit,” though the Court was not convinced that this was the case here.