Archive for the ‘Uncategorized’ Category

New Case Summary–UDOT v. LEJ Investments LLC

Posted on: December 7th, 2018 by jimwright

Utah Court of Appeals

November 8, 2018

2018 UT App 213 (Click for text of opinion)

The Utah Court of Appeals declined to overturn a trial court’s determination of value in a condemnation action in this case.

The Utah Department of Transportation (“UDOT”) filed an action to condemn a portion of property owned by multiple parties (collectively, “LEJ”).  After hearing evidence, the trial court did not adopt the appraisal valuations presented by either party and constructed its own valuation of the property from the expert opinions.  After the entry of final judgment, UDOT moved for a new trial because LEJ had not supplemented its discovery responses with certain development proposals for some of its property.  After LEJ provided the additional information, the court added an additional day of trial and declined to amend its prior ruling after that time.  UDOT appealed.

On appeal, the Utah Court of Appeals affirmed the trial court after addressing the four errors claimed by UDOT.  First, the court held that the trial court did not misapply the project influence rule because it appropriately relied on evidence presented at trial that development in the area would have occurred anyway even without the Mountain View Corridor. Second, the appeals court declined to disturb the trial court’s finding of severance damages between the two sides’ respective appraisals under the doctrine of invited error because UDOT invited the error it alleges the trial court made.  Third, the appeals court rejected UDOT’s argument that the trial court should have adopted UDOT’s expert’s amount when it declined to adopt LEJ’s expert’s amount because as trier of fact, the trial court could weigh the evidence and adopt or reject any part of an expert witness’s testimony and conclude a value anywhere in the range of values proffered by an expert.  The court noted that even if it were error for the trial court to make a ruling in the range of values given, it would reject UDOT’s claim under the invited error doctrine.  Fourth, the appeals court held that the trial court did not abuse its discretion in denying UDOT’s motion for additional discovery based on LEJ’s failure to supplement certain discovery responses because the record contained a reasonable basis for the trial court’s decision.

New Case Summary–Utah Department of Transportation v. Kmart Corp.

Posted on: October 3rd, 2018 by jimwright

Utah Supreme Court

September 25, 2018

2018 UT 54 (Click for text of opinion)

In this case, the Utah Supreme Court held that a tenant has no protectable property right entitling it to an award for just compensation when its lease terminates upon a condemnation.

The Utah Department of Transportation (“UDOT”) condemned an access to a shopping center where Kmart leased space. Kmart’s lease contained a termination clause terminating the lease if the condemnation materially impaired the access to the premises leased by Kmart. UDOT brought a motion for partial summary judgement against Kmart arguing that Kmart did not have any property interest requiring compensation because of the termination clause. The district court found that the condemnation materially impaired the access to the premises leased by Kmart, thereby triggering the termination clause, but still awarded Kmart a $1.4 million condemnation award.

On appeal, the Utah Supreme Court overruled the district court and held that Kmart had no protectable property interest requiring the payment of just compensation when the condemnation triggered the termination of its lease. In arriving at its decision, the Court noted that this conclusion 1) is consistent with general eminent domain principles because compensation is only awarded to a claimant with a current protectable property interest in the condemned property and a lease termination clause ends that property interest; 2) is consistent with general contract principles that allow parties to agree on mutually agreeable terms, including how to apportion future risk in case of a condemnation; and 3) is not inconsistent with the Court’s decision in UDOT v. FPA West Point, LLC because the applicability of the aggregate-of-interests approach to valuation has no impact on whether any property owner has a protectable property right in the first place.

New Case Summary–LJ Mascaro Inc. v. Herriman City

Posted on: August 31st, 2018 by jimwright

Utah Court of Appeals

June 21, 2018

2018 UT App 127 (Click for text of opinion)

The Utah Court of Appeals upheld Herriman City’s (“Herriman” or the “City”) denial of a request for nonconforming use status relating to the operation of a topsoil business.

The Mascaros have operated a topsoil business on property they have owned since 1979. Herriman annexed this property in 2009. Under Herriman’s zoning code, the Mascaros’ topsoil business operations required a conditional use permit. The Mascaros believed that they were legally operating the topsoil business at the time Herriman annexed their property and requested that Herriman make a finding that they had established a legal nonconforming use. Herriman’s zoning administrator denied this request and the planning commission upheld this decision. The Mascaros appealed to Herriman’s appeal authority, which found that while there was sufficient evidence in the record to have decided in favor of the Mascaros, the record contained enough evidence to uphold the planning commission’s decision. The Mascaros then appealed to district court and the court granted summary judgment in favor of the City.

On appeal, the Utah Court of Appeals affirmed the district court’s award of summary judgment to Herriman. The Court of Appeals upheld the district court’s determination that the appeal authority did not act arbitrarily and capriciously because its decision was supported by substantial evidence in the record. The court also concluded that the district court correctly determined the appeal authority’s decision was not illegal because the Mascaros failed to prove that they had legally established the topsoil business prior to Herriman annexing the property.

New Case Summary–Checketts v. Providence City

Posted on: April 5th, 2018 by jimwright

Utah Court of Appeals

March 22, 2018

2018 UT App 48 (Click for text of opinion)

The Utah Court of Appeals upheld Providence City’s (“Providence” or the “City”) determination that Chris and Sandra Checketts’ home business violated several land use ordinances. In addition, the appeals court determined that the district court improperly awarded attorneys’ fees to the City under the Office of the Property Rights Ombudsman’s (the “Ombudsman’s Office”) advisory opinion process.

The Checkettses own two lots in a residential zone in Providence. They live in a residence on one lot and the other lot (the “Business Lot”) is located three lots down from their residence. They started operating their counter top business on the Business Lot and some neighbors complained to the City. Over the next few years, Providence worked with the Checkettses to bring their Business Lot into compliance with City code. During this time, the Ombudsman’s Office issued an advisory opinion relating to the use of the Business Lot at the City’s request. Ultimately, Providence gave the Checkettses notice that their use of the Business Lot violated local land use ordinances. The Checkettses appealed and the local appeal authority agreed with the City. The district court then granted summary judgment in favor of the City and awarded attorneys’ fees pursuant to UCA § 13-43-206(12) based on the advisory opinion.

On appeal, the Utah Court of Appeals affirmed the district court’s determination that the appeal authority’s decision was proper and reversed the district court’s awarding of attorneys’ fees. The appeals court upheld the district court’s determination that the appeal authority’s decision was proper because it found that the decision was supported by substantial evidence in the record and was not otherwise illegal. The appeals court reversed the award of attorneys’ fees because it found that the attorneys’ fee provision in UCA § 13-43-206(12) only applied to litigation originating in district court such as declaratory judgments or condemnation actions.

New Case Summary–Baker v. Park City

Posted on: February 22nd, 2018 by jimwright

Utah Court of Appeals

October 13, 2017

2017 UT App 190 (Click for text of opinion)

The Utah Court of Appeals upheld a city’s decision to deny an application to amend a plat in this case.

The Bakers own a lot in a subdivision in Park City, Utah. Their lot is one of two lots out of over 100 in the subdivision not subject to CC&Rs prohibiting the further subdivision of the lot. The Bakers’ lot is also one of the smallest in the subdivision. They submitted an application to subdivide their lot to create an additional residential building lot. The newly created lots would meet the minimum lot standards in effect pursuant to the applicable Park City ordinances. The Park City Planning Commission (the “Commission”) held two different hearings on the matter and forwarded a recommendation that the Park City City Council (the “Council”) deny the application. The Commission supported this recommendation with 63 findings of fact and four conclusions of law, including the conclusion that the proposed amendment was not compatible with existing single family development. The Council ultimately adopted these findings of fact and conclusions of law and denied the application. The Bakers appealed this decision to the district court and that court granted summary judgement in favor of Park City.

The Utah Court of Appeals declined to decide whether the decision to deny the plat amendment was administrative or legislative in nature and assumed for purposes of its analysis that it was administrative to apply the more exacting of the two standards of review. The appeals court held that the Council’s determination that the proposal was not compatible with existing single family development satisfied the “good cause” inquiry used to determine whether to approve a subdivision amendment under the Municipal Land Use, Development, and Management Act in the Utah Code. The court further held that the Council’s decision was supported by substantial evidence in the record and was not otherwise illegal and affirmed the lower court’s decision.

New Case Summary–Utah Department of Transportation v. Target Corp.

Posted on: February 16th, 2018 by jimwright

Utah Court of Appeals

February 8, 2018

2018 UT App 24 (Click for text of opinion)

The Utah Court of Appeals upheld a jury award in favor of Target Corporation and Weingarten/Miller/American Fork LLC (collectively, the “Owners”) of more than $2.3 million in severance damages against the Utah Department of Transportation (“UDOT”).

UDOT acquired a small portion of the Owners’ property that formed part of the Alpine Valley Shopping Center (the “Shopping Center”) as part of its project to redesign the I-15 interchange at Main Street in American Fork. UDOT built a small part of this enormous interchange on the land it acquired from the Owners. More specifically, UDOT used this property to place dirt to support a retaining wall that supported the northbound on-ramp at the reconstructed interchange. In addition, UDOT closed a right-out only exit from the Shopping Center onto Main Street as part of the interchange project. The Owners claimed that they were entitled to severance damages for the loss of value to the Shopping Center because the new interchange obstructed the view of the Shopping Center and because of the loss of the right-out exit onto Main Street. The jury agreed and awarded the Owners over $2.3 million in severance damages. UDOT appealed the award and argued that the Owners had not shown the necessary causal link between the taking of their property and the awarded damages.

The Utah Court of Appeals upheld the jury award of severance damages. The court of appeals concluded that the trial court did not err in allowing the Owners’ claims for severance damages from the loss of visibility incurred by the interchange to proceed to trial because 1) a view-impairing structure does not need to be entirely built on the land taken by the condemning agency to be presumed to have caused any severance damages to the remaining parcel; 2) the entire interchange, as opposed to its individual component parts, served as the view-blocking structure for determining the severance damages; and 3) the interchange was partially built on the land acquired by UDOT because some of the dirt supporting an interchange retaining wall sits on the land UDOT acquired from the Owners. The court of appeals also concluded that the Owners had the option to present their severance damage claims in a general manner with evidence of the property’s value before the acquisition and then after the acquisition. The Owners did not need to separate out the specific damages attributable to each source of the severance damages.

New Case Summary–Outfront Media, LLC v. Salt Lake City

Posted on: November 14th, 2017 by jimwright

Utah Supreme Court

October 23, 2017

2017 UT 74 (Click for text of opinion)

The Utah Supreme Court upheld Salt Lake City’s (“Salt Lake” or the “City”) decision to deny Outfront Media’s (“CBS”) request to relocate its billboard.

CBS applied to relocate its billboard to an adjacent lot along I-15 in Salt Lake because its ground lease was about to expire. The City denied its request and CBS demolished its billboard to avoid remaining on the land after the lease expiration. CBS appealed Salt Lake’s decision to a land use hearing officer who upheld the City’s decision. CBS then appealed the decision to district court. The district court likewise upheld Salt Lake’s decision.

On appeal to the Utah Supreme Court, CBS argued that the City’s decision to deny its relocation request illegally used the power of eminent domain because the City did not comply with the required eminent domain procedures set forth in Utah law, including having the city council authorize the acquisition of the sign by eminent domain. CBS noted under UCA § 10-9a-513, a city is “considered to have initiated the acquisition of a billboard structure by eminent domain” if it denies a relocation request that meets certain spacing requirements. In addition, CBS argued Salt Lake’s decision to deny its relocation request violated the City’s billboard ordinance, and was arbitrary and capricious because the mayor acted to reduce the number of billboards in Salt Lake without a written policy to do so.

The Utah Supreme Court upheld the district court’s decision concluding that the City did not violate the law with its decision denying CBS’s billboard relocation request because (1) relocation denials are “considered” to be acquisitions of a billboard by eminent domain only for compensation purposes and do not trigger any requirement to follow the formal procedures of eminent domain; (2) there was no justification in the plain meaning of the City’s billboard ordinance for CBS’s conclusion that the decision violated this ordinance; and (3) there was substantial evidence in the record that Salt Lake’s mayor had a goal of reducing billboards in the City.

New Case Summary–Alpine Homes v. West Jordan

Posted on: October 24th, 2017 by jcullimore

Several real estate developers sued the City of West Jordan alleging the City violated the Utah Impact Fees Act by failing to spend fees collected from the developers on specified categories of expenditures within six years. The developers sought to have misspent or unspent fees refunded because the violation either constituted an unconstitutional taking or created entitlement to a refund under a claim in equity.

The court considered the threshold question of whether the developers had standing to bring the claims in the first place. The court concluded that the developers only had standing to challenge the constitutionality of the fee the City initially assessed, which the developers failed to do within the statutorily allotted one-year period after initial payment of the fee.

The court further held that the developers did not possess standing to the extent they sought a refund of fees in equity for the asserted injury related to illegally misspent or unspent fees. The court concluded that the city was authorized by the Impact Fees Act to assess impact fees to offset expected costs of development in certain areas, and that the developers were not injured as long as the initial assessment of the fees survived a takings challenge. Once the fees had been assessed, the developers no longer possessed an interest in ensuring the fees were spent in accordance with state law. The court determined that the only expectation the developers could reasonably have for paying the constitutionally levied impact fees was approval for their development, which they received. Any ongoing interest in how the fees were spent belonged to the existing lot owners, which were homeowners and residents of the city.

New Case Summary–McElhaney v. City of Moab

Posted on: October 23rd, 2017 by jimwright

Utah Supreme Court

September 21, 2017

2017 UT 65 (Click for text of opinion)

In this case, the Utah Supreme Court clarified that it would review the lower court’s decision, not the land use authority’s decision, on appeal from the district court. In addition, the Supreme Court instructed the district court to remand the case back to the land use authority to give it the chance to enter evidence into the record sufficient to support the land use authority’s denial of a conditional use permit application.

Mary and Jeramey McElhaney (the “McElhaneys”) applied for a conditional use permit to operate a bed and breakfast in their residential neighborhood in Moab. After a couple of public meetings relating to the application, the city council voted to deny the application. The council did not make any findings relating to whether or not the application complied with the requirements of the city code, but rather each council member simply stated their concerns as they announced their vote. The McElhaneys appealed the council’s decision to the district court. The district court noted that the council had not actually found facts in its role as fact finder and ultimately overturned the council’s decision. The city argued that it should remand the case back to the council to give it a chance to make further findings, but the court declined to do so. Moab appealed to the Utah Supreme Court.

The Utah Supreme Court clarified that it will review the intermediate court’s decision in the appeal of an administrative order, and not the original administrative decision itself. The Supreme Court agreed with the district court’s conclusion that the council had not made sufficient findings to justify its denial of the McElhaney’s application. The Supreme Court determined, however, that the district court erred in not remanding the case back to the city council so it could make findings of fact relevant to the applicable standards so its decision could be subject to meaningful review.

New Case Summary-Stichting Mayflower Mountain Fonds v. United Park City Mines Co.

Posted on: October 23rd, 2017 by jimwright

Utah Supreme Court

August 1, 2017

2017 UT 42 (Click for text of opinion)

The Utah Supreme Court upheld the district court’s rulings concluding that Stichting Mayflower Mountain Fonds and Stichting Mayflower Recreation Fonds (collectively, “Stichting”) did not have the right to use a mining road on Flagstaff Mountain near Park City.

Stichting holds title to mining claims dating back to 1871 on Flagstaff Mountain. It claims the right to use a road historically used to access the mines (1) as a public highway under the Mining Act of 1866 (commonly known as R.S. 2477) and the Utah Highway Act of 1880, (2) based on a prescriptive easement right, and (3) under a claim of an appurtenant easement. The district court ultimately dismissed both the public highway and prescriptive easement claims on summary judgment. The district court also denied Stichting’s motion to file an amended complaint to assert the appurtenant easement claim. The Utah Supreme Court affirmed the district court’s rulings.

Under RS 2477, state law dictates the time period of public use required for a road to become a public highway as a matter of federal law. The Utah Supreme Court found that prior to 1880, when Utah passed the 1880 Highway Act allowing for a public road to arise after five years of public use, the only way for Stichting to establish a public right to a road was to meet the common law standards of a prescriptive easement. This required 20 years of public use. The parties in this case agreed that some of the land crossed by the road in question became private in 1881. The Supreme Court concluded that Stichting could not establish a road under R.S. 2477 because it could not show that either the 20 year common law time or the five year statutory time for public use had run by then.

The Supreme Court also declined to disturb the district court’s dismissal of the prescriptive easement claim because Stichting failed to present the authority and evidence it advanced on appeal to the district court and therefore did not preserve it for appeal. Finally, the Utah Supreme Court indicated it would not disturb the district court’s decision to deny Stichting from amending its complaint to claim it had an appurtenant easement right over the road because of the broad discretion Utah law gives trial courts in deciding whether to allow such an amendment.