Parties: Applegate, LLC / Murray City

Issued: July 23, 2024

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Interpretation of Ordinances

Requirements imposed upon development

State law restricts municipalities from imposing conditions of approval which are not authorized by applicable law. Because the condition to require emergency-only access at the connection point between Fuji Avenue and Spring Clover Drive is not supported by substantial evidence the city may not lawfully impose such as a condition of approval of the subdivision plat amendment. Additionally, state law allows only those conditions to be imposed on conditional use permits which mitigate a reasonably anticipated detrimental effect. Because the traffic study indicated the townhomes will not adversely impact traffic level of service in the area, there are no anticipated detrimental effects, and a condition to mitigate the same is therefore unlawful.

As to the final issue, City Code requires that single-family lots must abut a public street. The lots in this subdivision abut a private street, and therefore the multi-family townhome blocks may not be further subdivided into single-family homes and sold individually.

Issues

1. May a city require the installation of an emergency-only access gate where a proposed 42-townhome project connects with an existing street?
2. May the developer further subdivide the proposed multi-family townhome blocks into individually sold single-family homes? The townhomes abut a private street and city code requires that single-family homes abut a public street.

Summary of Advisory Opinion

The property owner is proposing to develop a 42-unit townhome project. The townhomes are developed in blocks with multiple townhome units on each individual subdivision lot similar to  typical apartment buildings.

As required by city ordinance, the property owner submitted an amended subdivision plat application as well as a conditional use permit in connection with the project. As a condition of approval of both applications, the city is requiring an emergency-only access gate be installed across the roadway connection between the proposed project and an existing street to mitigate potential traffic impacts on an adjoining neighborhood. The condition to install the gate is not supported by substantial evidence nor intended to mitigate an established anticipated detrimental effect. Therefore, the city may not lawfully impose this as a condition of approval.

The property owner next asks whether the developer may lawfully further subdivide the proposed multifamily townhome apartment blocks into individually sold single-family homes. The city code requires that single-family lots must abut a public street. The lots in this subdivision abut a private street, and therefore the multi-family townhome blocks may not be further subdivided into single-family homes and sold individually.

Evidence

The following documents and information with relevance to the issue involved in this Advisory Opinion were reviewed prior to its completion:

1. Request for an Advisory Opinion submitted by Jake Christensen on behalf of Applegate LLC, received on August 18, 2023.
2. Documents provided by email from City Attorney Mark Richardson, dated November 17, 2023.
3. Email response from attorney Ryan Wallace, on behalf of Applegate LLC, dated November 20, 2023.
4. Additional question for advisory opinion and linked documents from Ryan Wallace, dated November 27, 2023.
5. Murray City's memorandum response to additional issues, submitted by Mark Richardson, dated December 13, 2023.
6. Email response from Ryan Wallace, dated December 20, 2023.
7. Email reply from Mark S. Richardson, dated December 29, 2023.
8. Email surresponse and attachments from Ryan Wallace, dated January 3, 2024.
9. Email reply from Mark S. Richardson, dated January 16, 2024.
10. Email from Ryan Wallace, dated January 18, 2024.

Background

In connection with a proposed 42-unit townhouse project, the property owner (Property Owner) applied for (1) preliminary and final subdivision plat approval to amend the existing Applegate Condominiums subdivision, and (2) a conditional use permit to Murray City (City). The project is infill development and adjacent to existing residential neighborhoods and the Applegate Condominium project.

The Murray City Planning Commission approved the project subject to multiple conditions. The Property Owner objected to several of the required conditions, however, through the appeal process, all but one of the objected-to conditions were resolved.

The Property Owner asks whether the remaining objected-to condition may be imposed. Specifically, the City is requiring that the new roadway connection between the proposed Fiji Avenue and existing Spring Clover Drive be blocked by an emergency-only gate so that only fire and emergency vehicles can use the access point. Neighbors have expressed concern over the potential traffic impacts of the project.

The Traffic Impact Study prepared by the Property Owner’s engineer indicated that the proposed development would have no significant impact on existing traffic. Furthermore, there are no City ordinances requiring that an emergency only access gate be installed under the proposed conditions. The Property Owner therefore asks whether this condition is arbitrary and capricious because it is not supported by substantial evidence or otherwise illegal because the requirement is not included in city ordinances.

Additionally, the Property Owner questions the City’s interpretation of City Code restricting the apartment townhome blocks from being further subdivided and sold as individual single-family homes. As currently proposed, multiple townhomes sit on each lot and will have a common owner and be rented individually.

City code requires that all lots serving single-family homes or duplexes abut a public street. Each lot in the proposed subdivision is directly served by a private street. The Property Owner maintains that the lots may be sold individually because common area (the private street) abuts the public street, arguably meeting the requirements of the Code. The City maintains that this does not meet the definition of “abut” and therefore the blocks of townhomes may not be further subdivided into single-family homes and individually sold.

The Property Owner has requested this Advisory Opinion to answer whether the City (1) may lawfully require installation of an emergency-only access gate as a condition of approval for the amended subdivision plat and conditional use permit and whether (2) the blocks of townhomes may be further subdivided into single-family homes and individually sold.

Analysis

I.     The City may not require that an emergency access gate be installed as a condition of approval for the amended subdivision plat because the Code does not expressly require the gate and the condition is not supported by substantial evidence in the record.

We first acknowledge that in contrast to other administrative decisions, the land use authority possesses an added level of discretion on whether to approve an amended subdivision plat application. Utah Code Section 10-9a-609(1) reads “the land use authority may approve the vacation or amendment of a plat . . . if the land use authority finds that: . . . there is good cause for the vacation or amendment.”[1] In this case, the City may deny the plat outright if it finds there was not “good cause” for approving the amendment. See, e.g., Six Blue Bison LLC v. Alpine City, 2023 UT App 89, 536 P.3d 77 (supporting the city council’s decision in not finding “good cause” for approval of a plat amendment because the proposed project road was not explicitly included in the general plan). Regardless, and as will be explained below, the City’s authority to outright deny for lack of “good cause” does not include discretion to approve the proposal with unlawful conditions.

Initially, we analyze whether the City may lawfully require that an emergency access gate be installed as a condition of approval of the amended subdivision plat.

When reviewing the City’s decision to attach conditions to a development approval, the first step is to determine whether applicable law authorizes the City to impose conditions on the approval, and under what circumstances. If applicable law permits the City to impose conditions, we then determine if the City supported its decision to impose the condition with substantial evidence in the record. If a land use authority exercises discretion to impose a condition in a manner that is unsupported by substantial evidence, then the decision is arbitrary and capricious and therefore unlawful. See Utah Code Utah Code § 10-9a-801(3)(b).

Utah state statute mandates that a municipality may only impose conditions of approval when state law, the municipal code, or municipal standards authorize it to do so. Utah Code Section 10-9a-509(f) states that “a municipality may not impose on an applicant who has submitted a complete application a requirement that is not expressed in: (i) this chapter; (ii) a municipal ordinance in effect on the date that the applicant submits a complete application . . .; or (iii) a municipal specification for public improvements applicable to a subdivision or development . . .”

Furthermore, land use applications are “entitled to approval if the application conforms to the requirements of the applicable land use regulations, land use decisions, and development standards in effect when the applicant submits a complete application and pays the application fees.” Utah Code § 10-9a-509(1)(a)(ii). In plain English, if the subdivision plat meets the rules and standards[2] outlined in the state law, the municipal code and adopted municipal standards for public improvements, it must be approved.

In this case, for the city to lawfully impose the condition that an emergency-only access gate be installed as a condition of approval, applicable law must clearly authorize the municipality to impose the condition, otherwise, the condition conflicts with state law.

According to the information the parties have submitted, and upon review of the Murray City Code, the following applies:

B.    This title is designed to inform the subdivision developer and the public of the requirements for obtaining subdivision plat approval. Because each parcel of real property has unique site/situation characteristics, there may be some aspects of subdivision development that cannot easily be articulated. For this reason, it is not possible to cover every possible contingency. Therefore, the City Engineer, Planning Commission, and Community and Economic Development Director have the authority to impose reasonable conditions upon a subdivider in addition to those expressly required, provided that:

 1.   The conditions are not arbitrary or capricious;

2.   The conditions do not conflict with any applicable law.

Murray City Code § 16.04.010.

This provision generally authorizes the City to impose reasonable conditions on a subdivision approval to the extent that the condition does not conflict with some other applicable law and to the extent the condition is not arbitrary and capricious because it is supported by substantial evidence in the record. See Utah Code Utah Code § 10-9a-801(3)(b).

But there must be more than just a general grant of discretion to impose conditions not expressly articulated in the Code. Where discretion is given to impose conditions, the discretion must be guided by some “intelligible principle” or standard of decision making. See J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928) (standing for the proposition that a legislative grant of discretion must include some "intelligible principle” to which the person or body authorized to act is directed to conform), see also State Tax Comm'n v. Katsis, 90 Utah 406 (Utah 1936) (“Where judgment and discretion are required of municipal officers they cannot be delegated without express legislative authority.”), and Bradley v. Payson City Corp., 2003 UT 16 n.2 (noting that administrative decisions are governed by city ordinances that “expressly limit[] the city’s discretion over [the approval]”).

Broad discretion to impose any condition, without articulated criteria for the decisionmaker to follow, will be considered an unlawful delegation of legislative authority, which is illegal. See State Tax Comm'n v. Katsis, 90 Utah 406 (Utah 1936) (“[w]here judgment and discretion are required of municipal officers they cannot be delegated without express legislative authority.") The City Code must provide guidelines or decision-making criteria for the land use authority to look to and follow when imposing a condition.

Here, the express rule governing access to the development is found in Murray City Code § 16.16.170. The section is titled “Relation of New Streets to Adjoining Street System; Access Streets.” Subsection (B)(2) states the following:

Multiple-Family Dwellings: Any residential subdivision development of more than one hundred (100) multiple-family dwellings shall have access to and from at least two (2) existing or proposed streets.

This section requires access to and from at least two existing or proposed streets where the development will contain more than one hundred multi-family dwellings, as is the case here since the road will serve the existing condos and the newly proposed townhomes. The applicant proposes to meet the requirement by completing the Fuji Avenue connection to Spring Clover Drive.

For the land use authority to have authority to impose an additional condition on the applicant’s proposed connection, such as the installation of a crash gate to limit access, it must identify a provision in the Code that would authorize it to impose the condition. The only language we can find to guide the city’s decision making in limiting access via a gate is in Murray City Code § 16.16.170(C) (emphasis added):

Design Standards: Every development proposal shall demonstrate to the satisfaction of the city engineer, city fire marshal and planning commission that the overall street system design and subdivision layout incorporates design features conducive to efficient travel, public safety, and the protection of property and the community residents therein. The basis for the required improvements shall be in accordance with the street design and fire suppression standards adopted by the city. Required improvements shall bear a proportionate, rational nexus to the impact of the proposed development on the local roadway system.

By including the Fuji to Spring Clover drive connection in accordance with the requirement for two access points, the applicant has met its burden for approval. For the City’s condition that the connection include a crash gate to be lawful, it must support its requirement with substantial evidence that the “required improvement” bears a proportionate, rational nexus to the impact of the proposed development on the local roadway system. We conclude that the City, in this case, has failed to meet this burden because no evidence has been presented that the crash gate is necessary to address the impact of the proposed development.

The only traffic study submitted for our review provides the following conclusion (emphasis added):

The addition of an unrestricted connection between Applegate Drive and Spring Clover Drive could result in a potential extra 60-121 daily, 4-7 AM peak hour, and 6-11 PM peak hour trips dispersed throughout the neighborhood to the west of Applegate. Fehr & Peers was not able to find publicly available data on current traffic volumes and operations of the neighborhood streets such as Halcyon Drive and Clover Meadow Drive, but this number of additional trips is not expected to cause significant traffic issues to these neighborhood streets unless they are already operating at or near capacity. The neighborhood roadways are not likely near capacity given the number of homes in the neighborhood and the lack of connectivity to other areas that would increase traffic. Furthermore, the additional connection could provide traffic benefits to the wider Murray area by providing redundant routes and access and potentially dispersing traffic in case where nearby intersections are impacted by incidents.

Fehr & Peers Traffic Study Memorandum dated June 14, 2023.

This conclusion is the only substantial evidence that has been presented upon which a decision could be made. Other opinions provided for our review do not appear to be supported by evidence or data, but consist of mere speculation and conjecture, which are inappropriate bases for imposing a condition. Accordingly, we conclude that the City, in exercising its discretion to impose a condition to address the impact of the proposed development has failed to support its decision with substantial evidence in the record, and that the condition is therefore unlawful.

We next analyze whether the City may lawfully require that an emergency access gate be installed as a condition of approval of the conditional use permit.

II.     The City may not require that an emergency access gate be installed as a condition of approval of the conditional use permit because there are no reasonably anticipated negative traffic effects to mitigate.

In reviewing the City’s decision to conditionally approve the conditional use permit we “shall presume that a final land use decision of a land use authority or an appeal authority is valid unless the land use decision is . . . (1) arbitrary and capricious; or . . . (2) illegal.” Utah Code § 10-9a-801(3)(b) (emphasis added).

We again first analyze whether imposing the condition on the conditional use permit was legal. Illegality refers to a determination that the decision violates a statute, ordinance, or existing law. Utah Code §10-9a-801(3)(c)(ii).

According to state law, “A municipality may not impose a requirement or standard on a conditional use that conflicts with a provision of this chapter or other state or federal law.” Utah Code § 10-9a-507(1)(b). Furthermore, “A land use authority shall approve a conditional use if reasonable conditions are proposed, or can be imposed, to mitigate the reasonably anticipated detrimental effects of the proposed use in accordance with applicable standards.” Utah Code § 10-9a-507(2)(a)(i).

In plain English, the City may impose conditions to mitigate the reasonably anticipated detrimental effects of the townhome project. The City may require the installation of the emergency-only access gate if it mitigates anticipated detrimental traffic effects.

In the case at hand, the Property Owner maintains that the City Engineer failed to identify any detrimental impacts that the minimal traffic generated by the new development via the Spring Clover Drive access. The traffic impact study prepared by engineering consultants for the Property Owner indicates that the traffic generated by the proposed project will not adversely impact access, level of service, nor the surrounding neighborhood roads. Traffic Study, Fehr Peers, May 29, 2019, and supplemented on June 20, 2022, December 28, 2022, and June 14, 2023.

The City Engineer recommends an emergency-only access while acknowledging that based on the accepted Traffic Study the traffic impacts generated by the proposed project will not detrimentally impact the level of service on neighboring roads. While the Code contemplates mitigating detrimental traffic impacts,[3] the City cannot lawfully impose a condition to mitigate traffic impacts which the Traffic Impact Study indicates will not exist.

As indicated above, the applicant has provided the Fehr & Peers Traffic Study. This study concluded that the proposed access point would not create any reasonably anticipated detrimental impacts, therefore, it would be unlawful for the city to impose a condition to install a crash gate, where detrimental impacts for the gate to mitigate there are not anticipated.

In summary, requiring that an emergency-only access gate be installed as a condition of approval of the conditional use permit is unlawful because there are no reasonably anticipated detrimental traffic effects to mitigate.

III.     The townhome lots do not directly abut a public street as required by City Code to be sold as single-family homes on individual lots.

We next address whether the plain language of the City Code prevents the apartment-style townhome blocks from being further subdivided and sold as single-family homes. As currently proposed, the project will have multiple townhomes on each subdivided lot. Each block of townhomes therefore will be under common ownership and be rented rather than owner-occupied. The project has been planned with all 42 townhomes being accessed via a private street.

The Property Owner designed the project with private streets which do not meet the more rigorous improvement standards of public streets. By designating the roadways as private the Property Owner eliminates the option to further subdivide each townhome into an individual lot to be sold as a single-family home. This is according to the requirements of City Code 16.16.090: entitled “Access to Public Streets” which reads “(A) All lots or parcels created by the subdivision of land, for single-family or two-family dwellings, . . . shall abut a public street which is improved to standards established according to this chapter.”

The term abut is not defined in City Code or Utah Code. Merriam Webster defines abut as “to border on: to touch along an edge” and “to cause to touch or lean for support.” Merriam Webster Dictionary, online edition, accessed May 23, 2024.

The Property Owner argues that the private street is common area and therefore part of the development, and as the development abuts the public roadway, the overall project meets the criteria and further subdividing should be allowed. However, the City Code language does not support this interpretation.

In interpreting city code, we must “apply the plain language of land use regulations.” Utah Code § 10-9a-306(1). In this case, the City Code is clear. “All lots or parcels created by the subdivision of land, for single-family or two-family dwellings . . . shall abut a public street. . .” Because each of the 42 townhomes abut a private roadway, they cannot be further subdivided into single-family units and sold individually. To hold otherwise would make the distinction between what may be built on private vs. public streets irrelevant.

To summarize, City Code requires that single-family lots must abut a public street. The lots in this subdivision abut a private street, and therefore the multi-family townhome blocks may not be further subdivided into single-family homes and sold individually.

Conclusion

State law restricts municipalities from imposing conditions of approval which are not authorized by applicable law. Because the condition to require emergency-only access at the connection point between Fuji Avenue and Spring Clover Drive is not supported by substantial evidence the city may not lawfully impose such as a condition of approval of the subdivision plat amendment. Additionally, state law allows only those conditions to be imposed on conditional use permits which mitigate a reasonably anticipated detrimental effect. Because the traffic study indicated the townhomes will not adversely impact traffic level of service in the area, there are no anticipated detrimental effects, and a condition to mitigate the same is therefore unlawful.

As to the final issue, City Code requires that single-family lots must abut a public street. The lots in this subdivision abut a private street, and therefore the multi-family townhome blocks may not be further subdivided into single-family homes and sold individually.

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Jordan S. Cullimore, Lead Attorney

Office of the Property Rights Ombudsman

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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. Additionally, a civil penalty may also be available if the court finds that the opposing party—if either a land use applicant or a government entity—knowingly and intentionally violated the law governing that cause of action.

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 and civil penalty provisions, found in § 13-43-206 of the Utah Code, 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.

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Endnotes

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[1] Of note, it appears the Planning Commission already found good cause to approve the subdivision it its July 20, 2023 Findings of Fact, which states that “[t]he proposed subdivision creates an opportunity for further residential development which is encouraged and supported by the 2017 Murray City General Plan in this area.” Therefore, the inquiry here focuses on whether the City has otherwise lawfully approved the subdivision with conditions.

[2] For a detailed explanation regarding the legal distinction between a rule and a standard, see Chapter 17. Rules and Standards, in The Legal Analyst: A Tool Kit for Thinking about the Law. In short, “[t]he general difference between a rule and a standard [is]: the consequences of a rule are triggered once we settle the facts; a standard requires a judgment about the facts before it kicks in.” Ward Farnsworth, The Legal Analyst: A Tool Kit for Thinking about the Law, at 164 (2007).

[3] Murray City Code § 17.56.060(C) provides that “[t]he applicant may be required to provide…reports and studies which will provide information relating to…traffic impacts….”