Advisory Opinion 214

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Parties: R. Paul Evans; City of Provo

Issued:  August 6, 2019

TOPIC CATEGORIES:

Interpretation of Ordinances

Appealing Land Use Decisions

Mr. Evans lacks legal standing to raise this claim, and likewise is not the property party to request an Advisory Opinion from this office.  Mr. Evans has not alleged a legally cognizable, distinct, and palpable injury that gives rise to a personal stake in the outcome of the dispute.

Mr. Evans, on behalf of himself and other neighboring property owner interests he represents, alleges that the large electronic display sign erected by Blue Rock Medical affects their aesthetic and recreational enjoyment of the area and may diminish the property values of a home in a neighboring subdivision.  Such generalized harms do not provide standing, nor do they qualify this matter for an Advisory Opinion.

DISCLAIMER 

The Office of the Property Rights Ombudsman makes every effort to ensure that the legal analysis of each Advisory Opinion is based on a correct application of statutes and cases in existence when the Opinion was prepared.  Over time, however, the analysis of an Advisory Opinion may be altered because of statutory changes or new interpretations issued by appellate courts.  Readers should be advised that Advisory Opinions provide general guidance and information on legal protections afforded to private property, but an Opinion should not be considered legal advice. Specific questions should be directed to an attorney to be analyzed according to current laws.

Advisory Opinion

Advisory Opinion Requested By:                  R. Paul Evans

Local Government Entity:                             City of Provo

Type of Property:                                          Commercial

Date of this Advisory Opinion:                       August 6, 2019

Opinion Authored By:                                    Marcie M. Jones, Attorney

…                                                                  Office of the Property Rights Ombudsman

Issue

Does a recently constructed, large, electronic display sign violate Provo City Code?

Summary of Advisory Opinion

Based on the information provided, R. Paul Evans lacks legal standing to raise this claim, and likewise is not the proper party to request an Advisory Opinion from this office.  Mr. Evans has not alleged a legally cognizable, distinct, and palpable injury that gives rise to a personal stake in the outcome of the dispute.  Mr. Evans, on behalf of himself and the other neighboring property owner interests he represents, alleges that the large electronic display sign erected by Blue Rock Medical affects their aesthetic and recreational enjoyment of the area and may diminish the property values of a home in a neighboring subdivision.  Such generalized harms do not provide standing, nor do they qualify this matter for an Advisory Opinion.

 

Review

A Request for an Advisory Opinion may be filed at any time prior to the rendering of a final decision by a local land use appeal authority under the provisions of Utah Code § 13-43-205.  An advisory opinion is meant to provide an early review, before any duty to exhaust administrative remedies, of significant land use questions so that those involved in a land use application or other specific land use disputes can have an independent review of an issue.  It is hoped that such a review can help the parties avoid litigation, resolve differences in a fair and neutral forum, and understand the relevant law.  The decision is not binding, but, as explained at the end of this opinion, may have some effect on the long-term cost of resolving such issues in the courts.

A Request for an Advisory Opinion was received from R. Paul Evans on January 22, 2019.  A copy of that request was then sent via certified mail to Amanda Ercanbrack, Provo City Recorder, 351 West Center Street, Provo, Utah 84601.

Evidence

The Ombudsman’s Office reviewed the following relevant documents and information prior to completing this Advisory Opinion:

  1. Request for an Advisory Opinion, submitted by R. Paul Evans, on January 22, 2019.
  2. Response received from Marcus O. Draper, Provo City Attorney’s Office, on February 5, 2019.
  3. Response received from R. Paul Evans on February 25, 2019.
  4. Response received from Marcus O. Draper, Provo City Attorney’s Office, on March 13, 2019.
  5. Response received from R. Paul Evans on March 19, 2019.
  6. Response received from Marcus O. Draper, Provo City Attorney’s Office, on April 1, 2019.
  7. Response received from R. Paul Evans on April 12, 2019. 

Background

According to the record, Blue Rock Medical, LLC purchased the property located at 3152 North University Avenue in December of 2010.[1]  At that time, Provo City Code allowed a single sign with a face no larger than sixty square feet and a height of no more than ten feet.  In May of 2013 and again in February of 2018, Provo City amended the relevant City Code provisions to restrict electronic display signs in the area.

In September of 2016, Blue Rock requested a City Code amendment which would have allowed an electronic display sign on the subject property with a sign face over 700 square feet.  Provo City Council unanimously voted to deny the proposed amendment.  In response, the following month, Blue Rock filed a lawsuit alleging that Provo City violated Blue Rock’s due process, equal protection, and free speech rights guaranteed under the Constitution, and that the sign regulations amounted to a regulatory taking.

Two years later, Blue Rock and Provo City settled the lawsuit out of court by signing a settlement agreement which permits Blue Rock to construct and operate an electronic display sign with a face no larger than 232 square feet, and a height of no more than seventeen and one half feet.  The settlement agreement notes that the sign is “being permitted by the City as a grandfathered non-conforming use.”  According to the record provided by Mr. Evans, the City Code still only permits a sign with a face of sixty square feet which is no taller than ten feet tall.

Construction on the sign began in December 2018.  The sign is now complete and operational.

In the record, Mr. Evans briefly alleges that the sign damages the “aesthetic, recreational, and environmental values” enjoyed by himself and his neighbors.  Mr. Evans uses the two walking and biking trails along North University Avenue for “enjoyment, exercise, and connection with natural beauty.”  In addition, Mr. Evans uses the corridor for travel by private vehicle and public transportation to visit his disabled daughter who resides nearby.  Mr. Evans also alleges that the property value of the home owned by Linen Fields, LLC, 0.7 miles away and on a different road, will diminish as a result of the sign.

Analysis 

Mr. Evans’ advisory opinion request raises several legal questions, the first of which is whether he is an appropriate party to submit a request on this matter.  Provo City argues that Mr. Evans has suffered no direct injury attributable to the electronic display sign and therefore, this office is precluded by law from issuing an advisory opinion based on his request.

To determine whether this advisory opinion request falls within the purview of this office, we will first examine standing requirements to bring a matter before the Utah courts, then apply as appropriate, the corresponding requirements to request an Advisory Opinion from this office.

I.     Standing Requirements in Utah Courts

Standing is a legal term that means the right to have a court adjudicate a matter in which one is interested.

Standing is a jurisdictional requirement that must be satisfied before a court may entertain a controversy between two parties. . . . The issue of standing requires the court to focus on whether the parties have both a sufficient interest in the subject matter of the dispute and a sufficient adverseness so that the issues can be properly explored.[2]

Utah courts have a well-established rule that to have traditional standing as a third-party to a land use decision a party must establish a particularized injury or special damages.[3]  “A party must both allege and prove special damages peculiar to himself in order to entitle him to maintain an action to enjoin [a] violation of a zoning ordinance.  His damage must be over and above the public injury [that] may be caused by the violation of the zoning ordinance.”[4]  To enjoin a zoning violation, a party must establish that their damage “differ[s] in kind or [is] substantially more than [the injury to] the general community.”[5]  In short, the party must demonstrate that they are aggrieved in way that a member of the general public is not.

Provo City maintains that Mr. Evans has failed to establish such harms, and therefore, lacks standing on this issue.  Mr. Evans claims the sign will adversely affect his (1) recreational interests and (2) the overall environment and aesthetic qualities of the vicinity.  He also claims that (3) the sign diminishes the property value of the home Linen Fields owns 0.7 miles away.  Each claim of injury will be discussed in turn.

Mr. Evans first contends that the sign interferes with his recreational interests.  Mr. Evans claims that the sign negates the open urban forest landscape feel he enjoys while using the two walking and biking trails in the area.  Mr. Evans notes that in Sierra Club v. Utah Air Quality Bd. the Court stated that “recreational interests are legally cognizable interests for purposes of our standing analysis.”[6] However, the court also stated that “not all allegations of injury to recreational interests will automatically qualify.”[7]  The recreational harms included in the record are largely unsupported statements, would apply to the general community population, and do not define a particularized injury.  Therefore, the alleged recreational harms do not provide standing.

Mr. Evans next contends that the sign will affect the overall environment and aesthetic qualities of the area.  However, the sign is in a commercially zoned area, built out with office, medical office, and strip commercial uses.  Many properties in the vicinity have large pylon signs along University Avenue.  The adjacent properties to the north and to the south each operate a large electronic display sign installed prior to the 2013 City Code restrictions.  The palpable injury to area aesthetics caused by the presence of an additional large electronic display sign on the property is not articulated in the record and not otherwise evident.  Therefore, the alleged aesthetic harms do not provide standing.

Next, Mr. Evans claims that the sign will diminish the property value of a home Linen Fields owns 0.7 miles away.  The record lacks analysis supporting this allegation, stating only that Mr. Evans “believes that the illegal sign at Blue Rock will result in a decreased property value.”  The record neither provides evidence that the home will suffer a reduction in value, nor a direct connection between the challenged action and purported future harms.  Such unsupported allegations do not provide standing.

Therefore, the harms alleged in the record by Mr. Evans would not provide him traditional standing before Utah courts.

In addition to traditional standing discussed above, Utah courts provide non-aggrieved parties an additional avenue to the courts via alternative standing.[8]  The Utah Supreme Court has extended alternative standing (1) to an appropriate party who (2) raises issues of great significance that would not otherwise be raised.[9]

According to the established test for alternative standing, a party is an appropriate party if it demonstrates that it has “the interest necessary to effectively assist the court in developing and reviewing all relevant legal and factual questions”[10]  Mr. Evans states that he served as Provo City Riverbottoms Neighborhood Chair when the existing sign standards for the area were enacted.  As such, he was directly involved in drafting and refining the ordinance language and had a hand in shepherding it through the approval process.  He was also the party who identified the alleged sign violation in question and filed the relevant appeal with the Provo City Board of Adjustment.  As such, he claims he is an appropriate party to raise this issue.  However, Mr. Evans no longer lives in the area and does not appear to be impacted differently than the average interested community resident.  His history with passing the sign code does not equate to sufficient interest.  Therefore, Mr. Evans is not an appropriate party warranting alternative standing.

Even were Mr. Evans an appropriate party, he would need to demonstrate that “the issues [he] seeks to raise ‘are of sufficient public importance in and of themselves’ to warrant granting the party standing.”[11] This requires the court to determine not only that the issues are of a sufficient weight but also that they are not more appropriately addressed by another branch of government pursuant to the political process.[12] The more generalized the issues, the more likely they ought to be resolved in the legislative or executive branches.”[13]

Mr. Evans briefly alleges that aesthetic harms caused by the sign are of great significance.   Where the sign is in a commercial area with multiple pylon signs, and at least two electronic display signs in the immediate vicinity, the evidence in the record does not support this conclusion.

As Mr. Evans is not an appropriate party to raise this issue, and he has not alleged the violation of a significant issue, he does not have standing under the alternative standing test.

Therefore, given the information provided in the record, Mr. Evans would not have standing in a Utah court of law under either the traditional or alternative standing tests.

II.     Limits on the authority of the Office of the Property Rights Ombudsman to issue Advisory Opinions

Standing[14] requirements established by Utah courts are not synonymous with standards governing the legal right to bring the same issue to this office for an advisory opinion.  The two thresholds are related, but not identical.

To request an advisory opinion from this office, according to state law, a party must be either  (1) a local government, (2) a private entity, or (3) a potentially aggrieved party.  Utah Code § 13-43-205.  As Mr. Evans is neither a local government nor a directly involved private entity[15], he must meet the eligibility requirements as a potentially aggrieved third-party.[16]

The authority of this office to issue an advisory opinion differs from standing in Utah courts in two key ways.  First, the traditional standing test Utah courts use determines whether a party is aggrieved.  By statute, this office instead uses the lower hurdle of potentially aggrieved.  Second, Utah courts have extended standing to non-aggrieved parties through an alternative standing test.  The Ombudsman Act does not similarly extend the authority of this office over such non-aggrieved parties.  Due to these differences, it is possible that a party could have standing in Utah courts, but fall outside the authority of this office to issue an advisory opinion, and vice versa.

Neither potentially aggrieved, nor aggrieved are defined by state statute.  Where clarifying statutes are missing, we turn to the common law and the ordinary meaning and usage of the words.  As discussed above, Utah Courts have defined aggrieved party in established traditional standing tests.  This standard can then be appropriately broadened to account for parties potentially demonstrating such aggrieved status.  Potentially is an adverb meaning with the inherent capacity for coming into being.  It describes something that could happen or might be true.  Potentially is a lower bar than probably and a higher bar than perhaps.

Therefore, Mr. Evans must demonstrate that he has the inherent capacity to establish a particularized injury or special damages have occurred.  The alleged harms must show the possibility of differing in kind or being substantially more than the injury to the general community.

Mr. Evans allegations do not reach this lower hurdle.  As detailed above, Mr. Evans alleges damage to (1) recreational interests as pedestrians and cyclists (2) aesthetic harms where there are numerous commercial pylon signs as well as at least two electronic display signs, and (3) the alleged drop in value to a home 0.7 miles away on a different road.  In the interest of furthering alternative dispute resolution, we generally interpret statutes governing our authority broadly, but our reach is not unlimited.  Granting this office authority over this request is a stretch too far.  None of the harms Mr. Evans alleged in the record have the inherent capacity to establish a particularized injury or special damages.  Each are generalized harms, potentially experienced by Mr. Evans in no greater degree than the general community suffers.

In summary, we find the harms Mr. Evans alleges insufficient to support a claim as a potentially aggrieved party, as required by state statute.  Therefore, Mr. Evans is not the appropriate party to request an advisory opinion from this office on this issue.

We express no further opinion regarding the legal questions raised by the advisory opinion request.

Conclusion

Based on the information provided, R. Paul Evans lacks legal standing to raise this claim, and likewise is not the proper party to request an Advisory Opinion from this office.  Mr. Evans has not alleged a legally cognizable, distinct, and palpable injury that gives rise to a personal stake in the outcome of the dispute.  Mr. Evans, on behalf of himself and the other neighboring property owner interests he represents, allege that the large electronic display sign erected by Blue Rock Medical affects their aesthetic and recreational enjoyment of the area and may diminish the property values of a home in a neighboring subdivision.  Such generalized harms do not provide standing, nor do they qualify this matter for an Advisory Opinion.

Brent N. Bateman, Lead Attorney

Office of the Property Rights Ombudsman

NOTE:

This is an advisory opinion as defined in § 13-43-205 of the Utah Code.  It does not constitute legal advice, and is not to be construed as reflecting the opinions or policy of the State of Utah or the Department of Commerce.  The opinions expressed are arrived at based on a summary review of the factual situation involved in this specific matter, and may or may not reflect the opinion that might be expressed in another matter where the facts and circumstances are different or where the relevant law may have changed. 

While the author is an attorney and has prepared this opinion in light of his understanding of the relevant law, he does not represent anyone involved in this matter.  Anyone with an interest in these issues who must protect that interest should seek the advice of his or her own legal counsel and not rely on this document as a definitive statement of how to protect or advance his interest. 

An advisory opinion issued by the Office of the Property Rights Ombudsman is not binding on any party to a dispute involving land use law.  If the same issue that is the subject of an advisory opinion is listed as a cause of action in litigation, and that cause of action is litigated on the same facts and circumstances and is resolved consistent with the advisory opinion, the substantially prevailing party on that cause of action may collect reasonable attorney fees and court costs pertaining to the development of that cause of action from the date of the delivery of the advisory opinion to the date of the court’s resolution.

Evidence of a review by the Office of the Property Rights Ombudsman and the opinions, writings, findings, and determinations of the Office of the Property Rights Ombudsman are not admissible as evidence in a judicial action, except in small claims court, a judicial review of arbitration, or in determining costs and legal fees as explained above.

The Advisory Opinion process is an alternative dispute resolution process. Advisory Opinions are intended to assist parties to resolve disputes and avoid litigation. All of the statutory procedures in place for Advisory Opinions, as well as the internal policies of the Office of the Property Rights Ombudsman, are designed to maximize the opportunity to resolve disputes in a friendly and mutually beneficial manner. The Advisory Opinion attorney fees provisions, found in Utah Code § 13-43-206, are also designed to encourage dispute resolution. By statute they are awarded in very narrow circumstances, and even if those circumstances are met, the judge maintains discretion regarding whether to award them.

Endnotes

___________________________________________________________________________

[1] Background information is taken from the record provided by Mr. Evans.  Provo City did not address the issues leading up to this advisory opinion in any of their responses.

[2] Specht v. Big Water Town, 2007 UT App 335, ¶ 8.

[3] See, e.g., Id.

[4] Id. at ¶ 10.

[5] Id.

[6] Utah Chapter of the Sierra Club v. Utah Air Quality Bd., 2006 UT 74 ¶ 30.

[7] Id.

[8] See, e.g., Jenkins v. Swan 75 P.2d 1145, 1150 (Utah 1983) (recognizing an alternative means by which a party can prove standing by showing that it is an appropriate party raising issues of significant public importance).

[9] Id.

[10] Utah Chapter of the Sierra Club v. Utah Air Quality Bd., 2006 UT 74 ¶36 quoting Jenkins v. Swan 75 P.2d 1145, 1150 (Utah 1983).

[11] Id.

[12] Id.

[13] Id.

[14] This Office is not a court of law, and although this Office does have statutory limitations similar to the concepts of standing and jurisdiction, those terms are reserved for official court use. Although our statutory limits are often discussed in terms of standing or jurisdiction, they are in fact statutorily imposed limitations to our ability to produce Advisory Opinions.  Herein, this office will refer to standing in purely the sense of the ability to bring an action to court. Standing will not be used to refer to the ability to request an advisory opinion from this office.

[15] Mr. Evans has argued that he also has standing as a private entity.  The rules of ordinance interpretation require that we “presume that the legislative body used each word advisedly.”  Harold Selman, Inc. v. Box Elder County, 2011 UT 18, ¶ 18.  Additionally, we are to “read the plain language of the statute as a whole, and interpret its provisions in harmony with other statutes in the same chapter.” Id.  As both “private entity” and “aggrieved party” are listed in the relevant statute as distinct entities, they must also be defined as distinct entities.  To do otherwise would render one of the entries moot.  An “aggrieved party” is a third-party indirectly suffering particular damages as a result of a governmental land use decision.  It follows that “private entity” cannot be the same such affected third-parties.  Instead, it is logical that “private entities” would be limited to those persons directly involved in the land use decision.  Herein, Blue Rock Medical, not Mr. Evans, would qualify as a private entity for the purpose of determining eligibility for an advisory opinion.

[16] While initially filing the request for advisory opinion as an individual, Mr. Evans has joined the interests of Linen Fields LLC, a company which he is a member and manager of, and other neighbors with “like concerns and standing,” to his own interests.  For the sake of simplicity, all such interests are included in any reference to “Mr. Evans’ interests.”