Parties: Bob Theobald and Park City

Issued: July 25, 2024

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Appealing Land Use Decisions

The party requesting an advisory opinion had standing under the city’s ordinances to challenge a subdivision plat amendment because city ordinances allow for appeals by anyone that submitted written comment in the proceedings. However, the requesting party does not have standing under state statute to request an advisory opinion regarding the city’s compliance in approving the subdivision amendment because they are not a potentially aggrieved person in relation to this particular decision.

The requesting party’s property does not adjoin the subject property, but they have alleged that the planning commission’s decision will create a precedent for other future decisions on more proximate properties within the same subdivision that might have a more direct affect. Even assuming some alleged future harm to the requesting party’s property, such harm is not traceable to this planning commission decision and would not be redressable by a decision in the requesting party’s favor.

Issue

Did Park City properly approve a subdivision amendment to adjust platted lot restrictions?

Summary of Advisory Opinion

Park City approved a subdivision amendment to relocate platted building pad and driveway areas  on the applicants’ residential lot to allow for development consistent with updated wetland setbacks. The party requesting this advisory opinion does not own property adjoining the applicant’s property, but lives in the approximate area and satisfies the City’s standing for local appeal for having provided written comment on the proposal. The requesting party appealed the City’s approval and requested this opinion upon the allegation that the planning commission failed to consider and properly interpret applicable plat restrictions, and that this error establishes a precedent for all of the lots in the same subdivision in how the same lot restrictions are interpreted on other lots, including other properties more proximate to this requesting party’s own property that could result in some alleged harm.

Legal standing for a statutory claim or process, including a request for an advisory opinion, is limited to a party within the scope of those authorized by the terms of the statute. The Property Rights Ombudsman Act allows for an advisory opinion to be requested by a potentially aggrieved person, which requires a showing of a particularized injury that is traceable to the agency action and would be redressable by a decision in the requesting party’s favor.

While the requesting party was entitled to take advantage of the broader availability for local appeal under the City’s process, the requesting party is not a potentially aggrieved person under Utah statute afforded the right to request an advisory opinion regarding the planning commission’s compliance with applicable law because such generalized alleged harms, even if assumed, are hypothetical future harms that cannot be attributed to this planning commission decision, nor would such harms be redressable by a decision in the party’s favor.

Evidence

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

1. Request for Advisory Opinion submitted by Bob Theobald, received May 9, 2024, and supporting documentation;
2. Phone call with Bob Theobald on May 20, 2024;
3. Meeting with Sarah Hall and Paul and Alaine Caraher on May 23, 2024;
4. Phone call with Mark Harrington, City Attorney for Park City, on June 13, 2024. 

Background

Bob Theobald is the owner of residential property in Park City located at 2810 Holiday Ranch Loop Rd, which, according to Summit County records, is in the “Park Meadows No. 2” subdivision, recorded in 1977, and has been improved with a single-family home since 1979.

The rear of Mr. Theobald’s lot backs up to real property that was originally subdivided in 1993 as the Willow Ranch subdivision. Willow Ranch was approved as a seven-lot[1] Master Planned Development (MPD) recorded in 1993, and subject to certain covenants, conditions, and restrictions (CC&Rs) and a governing community association.

According to Mr. Theobald, at the time of the creation of the Willow Ranch subdivision in 1993, a significant portion of the land was considered “swampy,” and a large percentage of the property was determined to be wetlands. Mr. Theobald asserts that at the time there was opposition to any kind of residential development, and alleges that it was clear then and now that development of any kind on the property would have adverse impacts on the surrounding neighborhoods, which includes his property.   The Willow Ranch Subdivision plat identified specific locations on each lot for “House Building Pad,” a “Barn Building Pad,” and a “Driveway Easement” as well as a reference to “Limits of Disturbance.” These locations were identified to preserve wetland areas identified by the Army Corps of Engineers.

In 2021, the City approved a replat of Willow Ranch “Lot 2.” Mr. Theobald’s property almost entirely shares its rear property line with Lot 2, and has since been in litigation with the City and owners of Lot 2 regarding the City’s approval of an amended building permit. Additionally, in 2022, the Willow Ranch CC&R’s were amended, and according to Mr. Theobald, deleted several elements, including definitions, that Mr. Theobald alleges relates to limits of disturbance and other development restrictions.

Paul and Alaine Caraher (the “Carahers”) are the owners of what was originally “Lot 6” of the Willow Ranch subdivision.[2] The Carahers applied for a subdivision amendment to relocate the platted building pad and driveway easements on the property because an updated Army Corp wetland determination showed that these plat restrictions, as originally implemented, now encroached on updated wetland setbacks.

The planning commission found there was good cause for the subdivision amendment and approved the application with certain conditions, and made several findings of fact and conclusions of law in support of its decision. Mr. Theobald’s property does not adjoin the Carahers’ property, but he did provide written comment in opposition to the proposal during planning commission proceedings. Mr. Theobald appealed the approval of the subdivision amendment alleging that the City had incorrectly applied applicable Sensitive Land Overlay requirements regarding wetlands and ignored the 1993 Army Corps wetland determination, and improperly relied on the 2022 amended CC&R’s and ignored or misinterpreted the 1993 CC&R’s.

Mr. Theobald’s concern is that the planning commission’s findings as to what applicability these initial CC&R’s and wetland determinations from 1993 have on the Carahers’ property would apply to other Willow Ranch lots and creates a precedent for the planning commission in how it might review future subdivision amendment applications from other Willow Ranch properties, including Lot 2 as his shared-boundary neighbor.

Analysis

Mr. Theobald requested this advisory opinion to determine whether the decision of Park City’s planning commission complied with applicable law in its approval of the proposed subdivision amendment and filed this request in conjunction with his appeal of that decision to Park City’s board of appeals. At the time the request for an advisory opinion was received, the City had already accepted his appeal and the City’s Appeal Panel had heard Mr. Theobald’s appeal, but had not yet issued a written decision.[3]

On those facts, the Office accepted Mr. Theobald’s request as potentially within the scope of authority for an advisory opinion based on his allegations that the planning commission did not comply with city ordinances in approving the plat amendment and that the decision would affect him and his property. However, upon further review of the information provided, we have concluded that Mr. Theobald has not shown any particularized harm that would give him standing as a potentially aggrieved person authorized to request an advisory opinion under Utah statute. Given, however, that Mr. Theobald’s primary reason for requesting the advisory opinion was the alleged concern that the planning commission’s decision works to negatively affect his property, we note that our analysis on standing also largely addresses that issue raised by Mr. Theobald and concludes to the contrary, and we therefore provide the following opinion.

I.   Standing to Request an Advisory Opinion Requires Particularized Injury

Standing is a jurisdictional requirement that must be satisfied before a particular party may make some legal claim, whether in an administrative process or a judicial setting – “The issue of standing requires . . . 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. Specht v. Big Water Town, 2007 UT App 335, ¶ 8.

Park City’s Land Management Code (LMC) provides standing to appeal a planning commission decision to anyone who submitted written comment or testified on a proposal before the planning commission, or who owns property within 300 feet of the subject site. LMC § 15-1-18(D). This is arguably a much broader pool for party standing than what state law provides for judicial review of a land use decision after final decision of the appeal authority, where applicable. See, Utah Code § 10-9a-801 (petition for judicial review of a land use decision may be filed by either a “land use applicant or adversely affected party”[4]).

The City’s choice to enact ordinances that provide additional appeal rights for local appeal of a land use decision to certain persons beyond those addressed in LUDMA is not inconsistent with state law. See id. §§ 10-9a-104 (LUDMA does not prohibit a municipality from adopting the municipality’s own land use standards); 10-9a-706 (each appeal authority is to conduct each appeal as provided in local ordinance and must respect the due process rights of each of the participants). However, such localized standing for city appeal purposes does not speak to what rights or other kinds of statutory remedies are available to that party under state law. See, generally, Northern Monticello All., LLC v. San Juan Cty, 2020 UT 10 (adversely affected third party’s right to appeal a discretionary planning commission decision not to revoke a conditional use permit was purely procedural and not a creation of due process rights that entitled the third party to participate in the planning commission hearing where the decision was made).

When a person is asserting a statutory claim, they must have statutory standing as a party within the scope of those authorized by the legislature to seek such review under the plain terms of the statute, otherwise, that claim may not proceed. See, McKitrick v. Gibson, 2021 UT 48, ¶ 16.

The Property Rights Ombudsman Act, Utah Code § 13-43-101 et seq, is the state statute that provides for the advisory opinion process, which is a form of alternative dispute resolution – referred to as a “quasi-mediation tool”[5] – that exists apart from a person’s administrative remedy under local ordinance or other legal remedy in Utah courts. To request an advisory opinion from this office, a party must be either (1) a local government, (2) a private entity, or (3) a potentially aggrieved person. Utah Code § 13-43-205.  As Mr. Theobald is neither a local government nor a directly involved private entity, he must meet the eligibility requirements as a “potentially aggrieved person.”

While neither “potentially aggrieved” nor “aggrieved” are defined by the Property Rights Ombudsman Act, the Utah Supreme Court has on several occasions interpreted the meaning of “aggrieved” found in other Utah statutes that likewise pertain to standing requirements for certain legal challenges. In every instance, the term “aggrieved” has been defined as consistent with the requirements for traditional legal standing in Utah courts,[6] which requires that a plaintiff show a particularized injury—which means that the complainant must suffer “special injury different in kind to the public in general,” Specht, 2017 UT App 75, ¶ 52, and which must also be traceable to the agency action and redressable by a decision in the claimant’s favor. See, Friends of Great Salt Lake v. Utah Dep't of Nat. Res., 2017 UT 15, ¶ 43 (internal citations omitted).[7]

Therefore, Mr. Theobald must demonstrate that he can potentially establish a particularized injury or special damages have occurred by the planning commission’s approval of the Caraher subdivision amendment. The alleged harms must show the potential of differing in kind or being substantially more than the injury to the general community, and be traceable to this particular planning commission decision and would otherwise be redressable by a decision in his favor. We do not see any potential aggrievance in the facts here.

II.   Speculative harm resulting from some future land use decision is not traceable to this planning commission action nor redressable by a favorable decision. 

Mr. Theobald argues that the Planning Commission erred in approving the subdivision amendment because it failed to “consider and understand with certainty all applicable laws” pertaining to these lots – namely, (1) the 1993 CC&Rs referenced in the MPD conditions of approval, the critical elements of which Mr. Theobald alleges were deleted by a 2022 amended CC&R’s, and (2) the 1993 Army Corp wetland delineations.

Internal lot restrictions are platted notes, platted demarcations, or platted designations that run with the land and create a restriction or designate a development condition that are enclosed within the perimeter of a lot described on the plat. Utah Code § 10-9a-103(28). Internal lot restrictions imposed on a lot may be adjusted or even vacated by a subdivision plat amendment. See, id. § 10-9a-608(2)(a)(iv). A subdivision amendment does not replace the entire subdivision plat but is limited to only the portion of the subdivision that is proposed to be amended. Id. § 10-9a-608(1)(b)(i). Assuming a proposed plat amendment complies with all applicable land use regulations, the land use authority may approve a plat amendment if it finds that there is good cause for the amendment, and necessarily is entitled to some discretion as to determining what constitutes good cause. Six Blue Bison LLC v. Alpine City, 2023 UT App 89, ¶ 24.

Without providing any opinion on the substance of Mr. Theobald’s claim, in order to determine whether a particularized injury has resulted to Mr. Theobald as a result of the planning commission’s decision, we note that even if Mr. Theobald’s assertions regarding the applicability of certain alleged restrictions on the property were accepted as true, the planning commission’s decision to approve the Carahers’ subdivision amendment results in no immediately discernable harm or injury to Mr. Theobald, who appears to assume that an erroneous decision would create a “precedent” for future land use decisions that have the potential to more directly affect his property. That is not necessarily the case.

First, as to any allegation that the Carahers’ proposal actively failed to comply with applicable land use regulations, a prior mistaken decision does not have the effect of binding future land use decisions to somehow require further violations. The prior practice of the planning commission, whether correct or incorrect, is not a consideration in determining whether a current land use application is entitled to approval.[8] In considering any land use application, the land use authority is to “apply the plain language of land use regulations,” Utah Code § 10-9a-306(1), and is “bound by the terms and standards of applicable land use regulations and shall comply with the mandatory provisions of those regulations.” Id. § 10-9a-509(2).

Beyond this, assuming the proposal does not fail to comply with applicable regulations, it would not be improper for the planning commission to at least consider prior subdivision amendments in determining whether “good cause” exists for a future subdivision amendment on another property. Realistically, however, a prior approval would not be the only consideration in making some future decision.

As such, even assuming the planning commission’s current decision to approve the Caraher subdivision amendment were used as the reason in the future to find “good cause” to support some future plat amendment, it would be a stretch to consider the hypothetical harm to Mr. Theobald resulting from some such future land use decision as traceable to this planning commission decision, as opposed to being more appropriately attributed to the hypothetical future decision. Each land use decision, as well as a challenge to that decision, must stand on its own merits.

Moreover, considering that lack of connection between this current decision and any considerations the planning commission would make in some future decision, it also follows that any alleged possible future harm to Mr. Theobald by future decisions would not be redressable were the planning commission to reverse its current decision in Mr. Theobald’s favor. Just as an incorrect decision creates no precedent for future decisions, nor would a decision favorable to Mr. Theobald in this instance have any effect of preventing some alleged harm resulting from the planning commission’s exercise of its discretion to approve a subdivision amendment in the future.

Should Mr. Theobald, in fact, be aggrieved by some future land use decision as suffering a special injury different in kind to the public in general, that would be the appropriate time, and decision, to challenge through appeal. Without that particularized injury here, however, state law does not recognize a sufficient interest of Mr. Theobald’s in the subject matter of the dispute and a sufficient adverseness in order to address the issues through the avenue of an advisory opinion.

Conclusion

Based on the information provided, while City ordinances allowed Mr. Theobald to appeal the planning commission’s approval of a subdivision amendment on nearby property solely due to his having provided written comment in the proceedings, he otherwise lacks statutory standing to request an Advisory Opinion as to whether the planning commission erred in its decision. Mr. Theobald’s request appears to have been made to address the concern of whether the planning commission’s decision, were it to be in error, would have any negative effect on his property. The analysis to determine whether Mr. Theobald meets statutory standing also answers this question, in that the planning commission’s decision, even if it were to have been made in error, has no binding effect on any future land use decision that could arguably result in harm to Mr. Theobald’s property. As such, any alleged future harm is not traceable to the current planning commission decision, nor would be redressable by a decision in his favor.

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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 Section 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 the author’s understanding of the relevant law, the author 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 or her 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 and consequential damages 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 Section 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] The subdivision contained seven residential lots, lots 1-7, as well as “Lot A,” designated as open space.

[2] Willow Ranch Lot 6 was replatted in 1996 as a two-lot “Smith Subdivision,” but is still subject to the same CC&R’s as the other Willow Ranch lots.

[3] Utah code provides that an advisory opinion may be requested “at any time before . . . a final decision on a land use application by a local appeal authority under . . . Section 10-9a-708.” Utah Code § 13-43-205(1)(b). Section 10-9a-708 provides that a written decision constitutes a final decision, so it has been the view of this Office that requests for an advisory opinion may still be filed after an appeal authority has verbally expressed a decision during an appeal hearing, so long as it has not yet issued a written decision.

[4] LUDMA defines “adversely affected party” as a person other than the land use applicant who (1) owns property adjoining the subject site, or, (2) “will suffer a damage different in kind than, or an injury distinct from, that of the general community as a result of the land use decision.” Utah Code § 10-9a-103(2).

[5] Checketts v. Providence City, 2018 UT App 48, ¶ 28.

[6] In one such similar statute, the Utah Supreme Court reasoned that “one is not necessarily ‘aggrieved’ within the meaning of [the statute] simply by virtue of having protested [an application] that was approved. The commonly understood meaning of the term ‘aggrieved’ is consistent with our traditional standing requirement that a plaintiff show particularized injury.” Wash. Cty. Water Conservancy Dist. v. Morgan, 2003 UT 58, ¶ 14.

[7] Having defined the term “aggrieved,” we note that language under the Property Rights Ombudsman Act is actually “potentially aggrieved.” Utah Code § 13-43-205(1) (emphasis added). This standard can then be appropriately broadened to account for parties potentially demonstrating such aggrieved status.  “Potential” is an adverb meaning “with the inherent capacity for coming into being.” Black’s Law Dictionary (10^th ed. 2014). It describes something that could happen or might be true. Considering the pre-litigation realm of the Advisory Opinion as a “quasi-mediation tool” which may be requested “at any time before” the exhaustion of administrative remedies, or, ultimately the “deadline for filing an appeal with the district court,” Utah Code § 13-43-205(1)(b), we believe the addition of the term “potentially” to the aggrieved party requirement is a proper characterization of the disputes that, if continue unresolved by the parties through the advisory opinion process, have the potential to mature into justiciable claims.

[8] Administrative officials may not forfeit the City’s power of enforcement to correctly apply its ordinance due to some prior disregard of an ordinance by administrative officials. See, Alta v. Ben Hame Corp., 836 P.2d 797, 801 (Utah Ct. App. 1992). “The custom or practice of certain [administrative] officials not to enforce [an ordinance] does not necessarily mirror the intent of the legislative body in enacting the zoning ordinance with the language now under scrutiny.” Id. In all cases, then, the administrative land use authority must do nothing other than to “apply the plain language” of its ordinances.