December 14, 2022
Utah Court of Appeals
2022 UT App 140 (click here for full text of opinion)
The Utah Court of Appeals held that a city’s inaction to enforce a zoning violation is not itself a separate land use “decision” that can be appealed. Where the appeal window on a land use decision issuing a building permit had closed, noncompliance with the permit during construction could have been challenged through an enforcement action, but not an appeal of the original issuance of the permit.
In July 2019, Woodland Hills issued a building permit for a home adjacent to the Fujas. In February 2020, after construction was well underway, the Fujas sent a series of letters to the city raising concerns that the house being constructed violated certain zoning provisions, and demanded enforcement action. The city’s building official gave a response to the alleged violations, and the Fujas submitted an appeal to the city, arguing that the city’s administration and interpretation of its ordinances was in error. The city responded arguing that the appeal was untimely, as the appeal window to challenge the July 2019 issuance of the permit had long expired. The Fujas clarified that they were not challenging the issuance of the permit, but instead sought to appeal the decision and determination by the city not to enforce the conditions of approval when issuing the permit.
The Board of Adjustment denied the appeal, determining that the lack of enforcement did not qualify as a “decision” that triggered a new appeal window. The Fujas then filed a petition for review with the district court, and the court granted summary judgment to the city on the same grounds as the Board.
On appeal from district court, the Utah Court of Appeals reviewed two sections of Utah’s Municipal Land Use Development and Management Act, section 10-9a-801 (the appeals section), and section 10-9a-802 (the enforcement section). The Utah Supreme Court has held that when the alleged violation arises directly from a municipal land use decision, the appeals section is applicable, whereas the enforcement section is applicable when parties seek redress from an alleged ordinance violation that is not authorized by or embodied in a land use decision. The Court of Appeals found that the neighbor’s noncompliance with the building permit that the Fujas complained of was not authorized by or embodied in a land use decision, and therefore the appeals section does not apply.
NOTE: This dispute between the Fujas and Woodland Hills is also the subject of an Advisory Opinion, but our Office opined only on conduct that arose after the land use appeals in question here. Please see, Advisory Opinion 244 – Fuja / Woodland Hills City.