Utah Court of Appeals
2023 UT App 18 (click for full text of opinion)
After several appeals on procedural issues and on remand from the Utah Supreme Court in NMA I, The Utah Court of Appeals held that the initial Planning Commission decision not to revoke a conditional use permit was arbitrary and capricious because it made no written findings, and that as the only body authorized to make findings, this initial fatal flaw rendered subsequent appellate decisions upholding the decision similarly arbitrary and capricious.
San Juan County granted a conditional use permit (CUP) to a wind farm, which required it to “incorporate as much flicker, light, sound, mitigation as possible.” A group of neighboring landowners–Northern Monticello Alliance (“Alliance”)–complained that the conditions were not being met and the Planning Commission held a meeting on the noncompliance issues, but decided not to revoke the CUP. The minutes from the Planning Commission meetings simply indicated that “studies were done relating to sound, flicker, and light,” and that the mitigation issue was “more subjective and not black and white,” and that it was “determined that mitigation had taken place as much as possible at this time.”
Alliance appealed to the County Commission, who ultimately upheld the Planning Commission’s decision after reviewing and relying on binders of information that the wind farm operator had purportedly provided to the Planning Commission, including the studies referred to in the minutes. The County Commission’s decision was later upheld on district court review, the court concluding that the County Commission had adequately supported its decision by substantial evidence in the record.
The Utah Court of Appeals, however, agreed with Alliance’s argument that both tiers of appellate review–the County Commission and District Court decisions–had been “poisoned” by the lack of adequate written findings from the Planning Commission. State law allows counties to set their own standard of review for appeal authorities. San Juan County ordinances provide a deferential standard of review that mirrors the state law standard for judicial review of a final land use decision, which is limited to reviewing the existing record and determining whether the lower decision was supported by substantial evidence in the record. However, the Court of Appeals held that “stating that a court or appeal authority is limiting its review to the evidence below makes sense only if that body is comparing the evidence in the record to actual findings made by a body empowered to make those findings.” Because the Planning Commission failed to articulate any findings, the County Commission was wrong to make its own findings from the evidence in the record in order to try and explain the Planning Commission’s decision, as it was the Planning Commission’s responsibility to define the basis for its decision. The district court, whose review was similarly limited to the County Commission’s decision, also erred in concluding that the County Commission had supported its decision by substantial evidence in the record because the County Commission was unable to make any findings of its own. The Planning Commission’s failure to make findings therefore acted as a “fatal flaw” in the chain of deferential review.