Monday, January 23, 2006

Land Use Decisions

State v. Six Mile Ranch Co., 2006 UT App 104

The defendants petitioned the county to abandon a road on Stansbury Island. The county granted the petition, but failed to send written notice to the State, which owned property that abutted the road. The State filed suit to have the abandonment nullified.

The trial court granted summary judgment to the State, ruling that the road was a public thoroughfare and that the county had failed to comply with the notice requirements of Utah Code Ann. § 27-12-102.4 (27-12-102.4 has been repealed; right of way statutes are now found in chapter five of title 72).

The defendants' appeal consisted largely of challenges to the trial court's factual findings about whether the road was a public thoroughfare. The court reaffirmed the broad discretion given to trial courts in making factual findings and the heavy burden appellants have in overturning those findings.

Although the [defendants] disagree with these findings, they again simply present us with the evidence supporting their position at trial--that all uses of the West Stansbury Road were permissive--and reargue the weight of that evidence. As we have already stated, this is an unavailing tactic on appeal . . . The record contains sufficient evidence to support the findings of the trial court and we do not disturb them on appeal.
Later the court wrote:
On a factual issue such as this, where contradictory testimony and evidence were offered at trial, the number of witnesses or the amount of evidence presented by a party in not necessarily determinative of the trial court's resolution of the issue.

Swenson v. Erickson, 2006 UT App 34

Erikson wanted to build a shed on his property in a Sandy subdivision (Quail Point). Swenson sued to block construction because the structure violated the subdivision’s restrictive covenants. So Erikson and a majority of the residents voted to terminate the covenants. Swenson claimed the covenants did not permit termination, only amendment. The court of appeals interpreted the following provision to mean that the covenants could be terminated:
These covenants are to run with the land and shall be binding on all parties and all persons claiming under them until January 1, 1994, at which time said covenants shall be automatically extended for successive periods of 10 years unless by vote of a majority of the then owners of the building sites covered by these covenants it is agreed to change said covenants in whole or part.
I also liked this quote from Dansie v. Hi-Country Estates Homeowners Ass'n, 1999 UT 62,¶14, 987 P.2d 30:
Restrictive covenants are not favored in the law and are strictly construed in favor of the free and unrestricted use of property.
If you ask me, when it comes to restrictive covenants, the less restrictive, the better.

B.A.M. v. Salt Lake County, 2006 UT 2.

B.A.M. objected to an exaction imposed by the County. The County turned the objection away without a hearing and without taking evidence. B.A.M. sued in district court. The court held a hearing, took evidence, and then ruled in favor of the County. B.A.M.'s primary contention in district court was that the exaction should be tested under the rough proportionality test from Nollan and Dolan. The court disagreed, ruling that the Nollan/Dolan test only applied to adjudicative exactions.B.A.M. appealed. The court of appeals reversed, holding that the district court erred in taking evidence. It ruled that the district court was limited to determining whether the county's action was arbitrary and capricious. Since the county had failed to give B.A.M. a hearing, its decision was arbitrary and capricious. The court also held that the rough proportionality test applied.The supreme court granted cert to consider the proper scope of review of a land-use decision in district court and the application of the Nollan/Dolan test. During briefing, however, the legislature made amendments to the County Land Use, Development, and Management Act that spoke directly to the issues on cert. The legislature passed section 17-27a-801, which directs district courts reviewing land-use decisions to take evidence when there is no record. It also enacted section 17-27a-507, which essentially adopts the rough proportionality test from Nollan/Dolan for all county exactions.

The supreme court held that the 17-27a-801 is procedural amendment that applies retroactively. Thus, the district court did the right thing in taking evidence.The supreme court then held that section 17-27a-507 implicates substantive rights, and thus cannot apply retroactively. So it reviewed the history of the Nollan/Dolan test, and concluded that "courts and scholars are unanimous in their assessment that the scope of the Nollan/Dolan analysis is unsettled."

Then comes the interesting part:
This court has yet to lend its voice to the unruly judicial chorus on this issue. We would be ill-advised to choose whether to adopt or apply the legislative/adjudicative model based solely on our judgment concerning which side of the debate has the more persuasive case. This is because our legislature has spoken directly to the question.

The court continues:

The general proscription against retroactive application of laws with substantive effect has little or no relevance where the statutory enactment fills a void or resolves an unsettled question upon which we have taken no position.

Normally we think of constitutional rights as being inalienable by the legislature. So it is unusual for the court to defer to the legislature on a question of constitutional rights, without the court also conducting its own analysis of the question and reaching the same result as the legislature. But the deference is appropriate here, because the legislature choose a test that has already been deemed compliant with the constitution:
In an environment in which the policy choice reflected in the decision to apply the rough proportionality test to all exactions would not upend any reasonable expectation on the part of a governmental entity that its exactions would escape rough proportionality scrutiny, we do not hesitate to align the law applicable to this case to that later embraced by the legislature.

Uintah Mountain RTC v. Duchesne County, 2005 UT App 565.

The court of appeals reverses Duchesne County's denial of a conditional use permit for a residential treatment center. The court found the county's decision to be arbitrary and capricious because it was not based on substantial evidence. Specifically, the county's findings were incompatible with earlier findings it made for a permit issued to another similarly situated residential treatment center in the county. The findings were also based on public clamor, which is an impermissible basis, by itself, to deny a conditional use permit.The court agreed, however, that the county could limit the size of the center to ten residents, because the center's operators had filed an incomplete conditional use permit application.

The View Condo Owners Ass'n v. MSICO, 2005 UT 91

Two issues: (1) A restrictive parking covenant created in the master declaration and plat map of a development in Alta was not terminated by a subsequent amendment to the plat map. The court held that the unambiguous language of the declaration and plat map made the parking covenant a servitude that ran with the land. The court also held that the changes in the amended plat were consistent with the parking covenant.

(2) Alta's change to its snow removal plan for the development was not a regulatory taking.


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