Advisory Opinion 291

Parties: Roger Stephens

Issued: July 31, 2024

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Topic Categories:

Interpretation of Ordinances

The subject property is a residential condominium falling under the authority of a development agreement. The property is zoned “Hotel/Lodging” within the Resort Core in this development agreement, which according to the plain language, allows for short-term occupation only.

The development agreement does allow for up to 10% of the beds within the Resort Core to be occupied on a long-term basis, however, this use is restricted to parcels designated with the “Residential” use. The subject property is not included in this designation.

Therefore, the subject property may not be occupied as a primary residence.

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:

Roger Stephens

Local Government Entity:

Summit County

Applicant for Land Use Approval:

Roger Stephens

Type of Property:

Specially Planned Area
Date of this Advisory Opinion:
July 31, 2024

Opinion Authored By:

Marcie M. Jones, Attorney

Office of the Property Rights Ombudsman


Issue

May a residential condominium zoned “Hotel/Lodging” be occupied as a primary residence?

Summary of Advisory Opinion

The subject property is a residential condominium falling under the authority of a development agreement. The property is zoned “Hotel/Lodging” within the Resort Core in this development agreement, which according to the plain language, allows for short-term occupation only.

The development agreement does allow for up to 10% of the beds within the Resort Core to be occupied on a long-term basis, however, this use is restricted to parcels designated with the “Residential” use. The subject property is not included in this designation.

Therefore, the subject property may not be occupied as a primary residence.

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 Roger Stephens on February 8, 2024.
  2. Response letter from Helen E. Strachan, on behalf of Summit County, on March 1, 2024.
  3. Response from Roger Stephens consisting of a letter on March 5, 2024, and a letter on March 7, 2024, with additional information to be considered.
  4. Response letter from Helen E. Strachan, on behalf of Summit County, on March 22, 2024.
  5. Response letter from Roger Stephens on March 26, 2024.

Background

Roger Stephens (Property Owner) owns a residential condominium in the Sundial Lodge Condominium project (Property) within the Canyons Resort development in Summit County, Utah. The Property Owner has been leasing the property to tenants who live in the property year-round as their permanent residence.

The Property is subject to a development agreement, known as the Amended and Restated Development Agreement for the Canyons Specially Planned Area (Canyons Plan), which designates, among other items, the uses, densities, and configurations for the Canyons Resort project. The Canyons Plan was agreed to and adopted in 1999 and includes a guiding development principle to “maximize resort/guest accommodation and minimize private residences.” Statement of Global Principles, 3.

The Sundial Lodge Condominium project is within the “Resort Core” zoning designation. The residential use listed for the Property parcels is “hotel/lodging” which allows only short-term occupancy by the unit owner or others. However, the Canyons Plan also includes an allowance whereby up to 10% of the beds in the Resort Core may be used for long-term residential occupancy. The Property Owner maintains that the Property qualifies for long-term use under this 10% allowance.[1]

In October of 2023, the Property Owner applied for and received a primary residential tax exemption through the Summit County Assessor’s Office. Now aware that the Property is occupied on a long-term basis, County zoning enforcement filed and served a Notice of Violation against the Property Owner. The citation is for a failure to abide by the restriction against occupying the Property as a primary residence due to occupancy limitations the County maintains apply to the Property.

The Property Owner has requested this Advisory Opinion to answer whether the Property, a residential condominium in a resort community, may lawfully be occupied as a primary residence.

Analysis

I.   The Canyons Plan designates the Property as “Hotel/Lodging” which permits short-term rentals only.

The Canyons Plan is a development agreement entered into in November of 1999. Different aspects of the Canyons Plan have been subject to several lawsuits which provide us with directly applicable guidance from the courts. According to the Utah Supreme Court “the parties agreed to take specified steps to develop the Canyons Resort in exchange for the County’s approval of the projects, assistance in obtaining permits from other governmental agencies, and other support.” Osguthorpe v. Wolf Mt. Resorts, L.C., 2013 UT 12, ¶2, 322 P.3d 620 (Sup.Ct.).

Furthermore, the Utah Supreme Court has outlined how the Canyons Plan should be interpreted:

The underlying purpose in construing or interpreting a contract is to ascertain the intentions of the parties to the contract.” WebBank v. Am. Gen. Annuity Serv. Corp., 2002 UT 88, ¶ 17, 54 P.3d 1139. To ascertain the parties’ intentions, we look to the plain meaning of the contractual language, Café Rio, Inc. v. Larkin-Gifford-Overton, LLC, 2009 UT 27, ¶ 25, 207 P.3d 1235, and “we consider each contract provision . . . in relation to all of the others, with a view toward giving effect to all and ignoring none,” Selvig v. Blockbuster Enters., LC, 2011 UT 39, ¶ 23, 266 P.3d 691 (alteration in original) (internal quotation marks omitted).

Id. at ¶10. More generally, the Utah Supreme Court has said “[i]f the language within the four corners of the contract is unambiguous, the parties’ intentions are determined from the plain meaning of the contractual language, and the contract may be interpreted as a matter of law.” Green River Canal Co. v. Thayn, 2003 UT 50, P 17, 84 P.3d 1134. (ellipses in original) (internal quotation marks omitted).

While agreed to several decades ago, the Canyons Plan is binding upon subsequent owners. As stated in Section 6.3 of the Canyons Plan, the agreement forms a “Covenant Running with Land. This Amended Agreement shall be recorded against all legal parcels of record within the Property described in Summit County Ordinance 333-A. All terms and conditions contained herein shall be deemed to ‘run with the land’ and shall be binding on and shall inure to the benefit of all successors in ownership of parcels within the Property. . .” (emphasis added).

The Canyons Plan includes Global Principles which provide directions to make beds available for resort and guest accommodation: “Required Unit Configurations and Occupancy for all Development in the Canyons Resort Community to Maximize Resort/Guest Accommodation and Minimize Private Residences. This principle is met through the limitation requiring that no less than 80% of all beds in the Resort Center are allocated to resort and guest accommodations, and within the Resort Core, no less than 90% of the beds are allocated to resort and guest accommodations.” The Canyons Plan, Section 13.C (emphasis added).

With that direction in mind, we next look at the specific requirements attached to the Property. The Canyons Plan, Exhibit C, Land Use Zoning Map designates the Property use as “Hotel/Lodging.”

Black arrow depicts approximate location of the Property.

The Sundial Lodge Condominium project lies on Parcels RC 2 and RC 3 and is designated “Resort Core” within the Canyons Plan. The primary use listed for parcels RC2 and RC3 is “hotel/lodging” with “accommodation” as well as “commercial/retail support” square footage also allocated. The Canyons Specially Planned Area Master Development Plan, Land Use & Zoning Table, page 1 of 5.

The designation “Hotel/Lodging” is defined within the Canyons Plan as “a unit which shall contain attributes of a hotel or facility established for similar purposes and which shall be available for short-term occupancy by the unit owner or others.”

The Canyons Plan also defines “Residential Units” as “a dwelling unit which may be used as a primary residence.” Therefore, areas designated “Hotel/Lodging” may be used for short-term occupancy and those designated “Residential Units” may be used as primary residences.

The Canyons Plan does allow for up to 10% of the beds in the Resort Core to be allocated as other than resort and guest accommodations. The Canyons Plan, Section 13.C.  “There shall be no more than ten percent (10%) of the beds allocated to primary residential dwelling units in the Resort Core.” The Canyons Plan, Global Principles and Policies, Section 3. Such long-term use is accommodated in Parcels RC 15, RC 16b, PC 24, and RC 25 where Residential uses are permitted. The Canyons Specially Planned Area Master Development Plan, Land Use & Zoning Table, page 2 of 5.  However, the Parcels the Property is located on is not included in this 10% exception. The Property lies on Parcels RC 2 and RC 3.

In summary, according to the plain language of the Canyons Plan, the Property may not be used as a primary residence. This Property, in particular, is designated for Hotel/lodging uses which allows only short-term occupancy.

Conclusion

Short-term occupancy is the only permitted residential use of the Property. The County may lawfully restrict the Property from being used as a permanent residence.

There are other parcels in the development zoned “Residential” which permits permanent residency. However, the subject property is not included in this designation.

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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


[1] The Property Owner makes several additional arguments to support his position which do not fall under our Advisory Opinion authority. For instance, he maintains that the Canyons Plan is over 150 pages long with the occupancy restrictions buried in the middle which fails to give buyers notice. While sympathetic to this claim, the length of a development agreement does not void its provisions. The Property Owner next argues that the CC&Rs allows permanent occupancy, therefore it must be legal. However, CC&R provisions are private land use controls that may add private community restrictions above or beyond general land use restrictions imposed by local ordinance, but do not operate so as to allow that which is prohibited by applicable land use regulations, including a development agreement The Property Owner also states that cats and dogs are allowed and by extension full-time residential use must therefore be lawful. However, short-term tenants may travel with pets making use of this allowance. The Property Owner also states that he thinks Utah law allows him to use his property as he sees fit. That is true only as to any allowed use of property not otherwise expressly prohibited by regulation. See, Western Land Equities v. City of Logan, 617 P.2d 388 (Utah 1980) (an owner of property holds it subject to zoning ordinances enacted pursuant to a locality’s police power).