Resolving Disputes Over Land Use Code Violations
A. Introduction
As a general rule, if a person owns land, that person has the right to develop it, adapt it, or otherwise use it for some beneficial purpose. In the commercial context, the beneficial purpose is usually to make money. But, as we know, the ways in which landowners can use their properties are regulated by zoning and land use laws. These laws are usually interpreted and enforced by local government entities, typically cities and counties (the “local government”). Sometimes, before developing or using a property in a certain way, the landowner must seek permission from the local government. And, sometimes the local government notifies the landowner that the law does not allow the proposed use and denies permission. When the landowner disagrees with the local government’s interpretation of the law, a dispute arises. Sometimes the local government approves of a landowner’s development or use, but other citizens disagree with the approval. This scenario also creates a dispute. This article will briefly address options in attempting to resolve disputes involving land use code violations.
B. Levels of Decision Makers
Before discussing dispute resolution options, it is helpful to understand the identity of the various gate keepers in the land use dispute resolution process. There are generally five levels of authority that make land use decisions, as listed below. "Land use decision" means an administrative decision of a land use authority or appeal authority regarding: (a) a land use permit; (b) a land use application; or (c) the enforcement of a land use regulation, land use permit, or development agreement. Utah Code § 10-9a-103(27)
Land Use Authority. The land use authority makes the initial decision with regard to a land use application submitted by a property owner to the local government. “’Land use authority’ means: (a) a person, board, commission, agency, or body, including the local legislative body, designated by the local legislative body to act upon a land use application; or (b) if the local legislative body has not designated a person, board, commission, agency, or body, the local legislative body.” Utah Code § 10-9a-103(24).
In some local governments, the local legislative body retains the role of land use authority. In municipalities, this would be the city council. In counties, this would be the county commission. In some local governments, the planning commission is designated as the land use authority. Some local governments will use the legislative body, the planning commission, and another designated person or body to act as the land use authority depending on what type of land use decision is to be made. Local ordinances will control who acts as the land use authority and for what type of decision.
Although the land use authority makes the initial land use decision, they often seek recommendations from the local government’s staff. Staff are usually the first gate keepers when it comes to filing land use applications. Staff act in an advisory capacity to the land use authority. They will review applications and make recommendations based on their experience and their interpretation of local ordinances. The land use authority does not have to follow the recommendation of the staff, but they usually do. Applicants will want to ensure they know the staff and are professional and courteous to them.
Appeal Authority. If an affected party is not satisfied with the decision of the land use authority, he or she can appeal to the appeal authority. For example, if a land use authority refused to issue a building permit because of a perceived misapplication of a zoning ordinance, the landowner can ask the administrative appeal authority to review the decision. Every local government that has even one zoning ordinance is required to have an appeal authority. Utah Code § 10-9a-701(1). “’Appeal authority’ means the person, board, commission, agency, or other body designated by ordinance to decide an appeal of a decision of a land use application or a variance.” Utah Code § 10-9a-103(2).
The traditional appeal authority is a board of adjustment. Many local governments still have these. Some local governments appoint hearing officers to act as appeal authorities. These often consist of experienced land use practitioners. Many local governments use the planning commission to act as an appeal authority. A planning commission, or any body for that matter, may not act as both the land use authority and the appeal authority, for obvious reasons. The appeal authority must have complete independence from the land use authority. Utah Code § 10-9a-701(3). Some local governments will employ a combination of these bodies as appeal authorities, and they will handle different types of appeals. See Utah Code § 10-9a-701(4)(b).
District Court. In most situations, before a property owner can appeal to the district court, he or she must have exhausted all available administrative remedies. See Salt Lake City Mission v. Salt Lake City, 2008 UT 31, 184 P.3d 599 (2008); see also Republic Outdoor Advertising, LC v. Utah Dept. of Transp., Div. II, 2011 UT App 198, 258 P.3d 619 (App. 2011). In other words, the property owner must appeal to the appeal authority first. Utah Code § 10-9a-801(1). Only after that can he or she appeal to the district court. Any applicable administrative remedies set forth in local ordinances must also be followed and exhausted before the district court can review the decision. See Patterson v. American Fork City, 2003 UT 7, 67 P.3d 466 (2003).
Court of Appeals and Supreme Court. If an affected party is dissatisfied with the district court decision, he or she may appeal to the Court of Appeals and then the Supreme Court.
C. Stages of Decisions
Stage 1. Land Use Authority
The higher the stage, the more difficult it will be for a property owner to resolve a land use decision. Property owners should therefore do everything they can to convince the land use authority to decide in their favor before the dispute even arises. The further up the ladder, the harder it is to climb. From the local government’s perspective, the land use authority will want to do everything it can to follow the applicable procedures and correctly apply the ordinances to minimize the chance of an appeal and to resolve a dispute before costly litigation ensues.
It is at the land use authority stage that one should become familiar with the applicable local ordinances. Local ordinances will often dictate particular appeal procedures, e.g. how and where to file. Landowners will want to know what comes next in the event a decision does not go their way.
Also at this stage, practitioners, regardless of which side they represent, will want to keep in mind the importance of the administrative record. The record created during stages 1 and 2 will be used at stages 3, 4, and 5. The “record of the proceedings" refers to all evidence presented to the land use authority at the first stage, and the appeals authority at the second stage. It includes all documents submitted as well as the transcripts of any public hearings. The record also includes minutes, findings, and orders. Utah Code § 10-9a-801(7). If an issue is not in the record at the administrative level it cannot be heard by the district court. The district court may only review the record created by the administrative appeal process and may not accept new evidence (except in very limited cases). There are only two exceptions to the rule that the district court’s review is limited to the record: (1) when evidence was offered to the land use authority or appeal authority and the court determines that it was improperly excluded, and (2) no record was created below. Utah Code § 10-9a-801(8)(a)-(b); Petersen v. Riverton City, 243 P.3d at 1268. Local governments are required to transmit the record to the district when an appeal is filed. Utah Code § 10-9a-801(7). Failure to do this is grounds to reverse a decision made by the district court without the record. See e.g. Morra v. Grand County, 2010 UT 21, ¶ 38, 230 P.3d 1022 (2010).
Because of the importance of the administrative record, practitioners will want to do everything they can to gather any and all evidence they believe will assist them and submit it to the land use authority. This means that if testimony from an expert witness on, for example, environmental issues, development issues, or traffic issues, will be crucial to your case, that testimony needs to be submitted at the administrative level. Furthermore, landowners may not have an opportunity to present very much evidence at a hearing. The hearings often last only minutes. Therefore, all evidence should be reduced to written format and submitted to the land use authority before the hearing. This will allow the landowner to highlight his or her strongest points during the hearing. Even though some land use authorities record the hearings, landowners should ensure that this will be the case and/or arrange for their own stipulated method of recording if needed.
Stage 2. Appeal Authority
One desiring to appeal a land use decision must almost always first file the appeal with the local government’s appeal authority. The time to do so is very short—often as little as 10 days unless a longer period is established by local ordinance. Utah Code § 10-9a-704. The clock starts to run once the land use authority makes a “written decision” and “the aggrieved party has actual or constructive knowledge” of the written decision. Id.; Fox v. Park City, 2008 UT 85, ¶21, 200 P.3d 182 (2008) (the issuance of a building permit constituted a written decision, commencement of construction constituted constructive notice that a permit had been issued, and the aggrieved party was at that time charged with going to the city to review the permit). Failure to meet the appeal deadline is fatal to the appeal. There may be exceptional circumstances that would allow an affected party to bring an appeal after the appeal period has run; for example, if the land use decision involved fraud or bribery of government officials. Fox v. Park City, 2008 UT 85, ¶29, 200 P.3d 182 (2008). “These types of actions so severely undermine the permit process that the appeal period would not begin until the affected parties have notice of them.” Id.
Appeal authorities may hear cases involving a challenge to the way a zoning ordinance is applied, requests for variance (sometimes a separate appeal authority designated to hear requests for variances only), a challenge to a fee that is charged, e.g. an impact fee, challenges to interpretations of health or building codes (sometimes handled by a separate appeal authority). Appeal authorities hold open, public meetings to gather testimony and evidence.
The standard followed by an appeal authority in reviewing a land use decision may vary among jurisdictions. A local government may, by ordinance, designate the standard of review for appeals of land use authority decisions. Utah Code § 10-9a-707. If the municipality fails to designate a standard of review of factual matters, the appeal authority shall review the matter de novo. Id. Each appeal authority shall conduct each appeal and variance request as provided in local ordinance. Utah Code § 10-9a-706.
There are other things one should keep in mind at this second stage. For example, the appeal authority must allow due process. In the event a landowner is being treated unfairly or is not given an opportunity to be heard, the local government may be in violation of Utah Code § 10-9a-706(2).
Stage 3. District Court
One desiring to appeal a decision made by the appeal authority must file the appeal with the corresponding district court. The document filed with the district court should be titled, “Petition for Review.” Petersen v. Riverton City, 243 P.3d at 1268. The time to file is short – 30 days after final decision from the appeal authority. Utah Code § 10-9a-801(2)(a). A written decision, or other event as provided by ordinance, constitutes a final decision under Subsection 10-9a-801(2)(a) or a final action under Subsection 10-9a-801(4). Fox v. Park City, 2008 UT 85, 200 P.3d 182 (2008) (the issuance of a building permit constitutes a final decision that triggers the start of the appeal clock.).
The standard of review used by district courts in analyzing a land use decision is found in Utah Code § 10-9a-801(3). A district court will presume that the decision is valid and will only overturn it if: (1) it is arbitrary and capricious; or (2) it is illegal. An administrative land use decision is arbitrary and capricious if it is not supported by substantial evidence. Substantial evidence is “that quantum and quality of evidence that is adequate enough to convince a reasonable mind to support a conclusion.” Bradley v. Payson City Corp., 2003 UT 16, ¶ 15, 70 P.3d 47 (2003).
A decision is “illegal” if it exceeds the local government’s authority, or if the required procedures were not followed to make the decision. As long as a land use application conforms to local zoning maps and ordinances, etc., local governments are generally obligated to approve the application. Utah Code provides that a land use applicant is:
[E]ntitled to approval of a land use application if the application conforms to the requirements of the municipality's land use maps, zoning map, a municipal specification for public improvements applicable to a subdivision or development, and an applicable land use ordinance in effect when a complete application is submitted and all application fees have been paid. Utah Code § 10-9a-509(a)(ii).
There are some exceptions; for example, if approval would jeopardize a compelling, countervailing public interest. Utah Code § 10-9a-509(a)(ii)(A). But, if an application meets the above requirements and an exception does not apply, it would be illegal for a local government to deny the land use application. “If a land use regulation does not plainly restrict a land use application, the land use authority shall interpret and apply the land use regulation to favor the land use application.” Utah Code § 10-9a-306(2). An appeal based on illegality essentially argues that the land use authority did not follow state law or local ordinance. Appeals on grounds of illegality are often more successful than those based on the argument that the decision was arbitrary and capricious. The standard is more favorable and more straight forward. If a landowner has an argument that a land use decision was illegal, his or her chances of success on appeal will be much better.
At or prior to this third stage is when a landowner will want to consider requesting a stay of the effects of the land use decision; for example, a stay on the building of a certain structure, pending appeal. SeeUCA § 10-9a-801(9)(a). Local governments may grant stays pending appeal if the stay is in the best interest of the local government. The appellant should also consider seeking a stay from the court at the time a petition for review is filed.
Also, when a practitioner files a petition for review of a land use decision with the district court, he or she should also consider including a request for declaratory judgment, asking the district court to declare the direction the local government should take. See e.g. Fox v. Park City, 2008 UT 85, 200 P.3d 182 (2008) (petitioner asked the district court a declaratory judgment against the respondent for its violation of height restrictions, and an injunction against the respondent to bring three buildings into compliance with the height restrictions.) He or she should also consider filing a request for an injunction, mandamus, abatement, or other appropriate action to prevent the violation or further violation of a statute or ordinance affecting land or zoning. Utah Code § 10-9a-802(1).
Stages 4 and 5: Court of Appeals and Supreme Court
When the Court of Appeals or Supreme Court reviews a district court decision on a land use appeal, they act as if they are reviewing the land use authority's decision directly, and they afford no deference to the district court's decision. Fox v. Park City, 2008 UT 85, ¶ 11, 200 P.3d 182 (2008). Like the review of the district court, their review is limited to whether a land use authority's decision is arbitrary, capricious, or illegal. Id. They do “afford some level of non-binding deference” to the land use authority’s interpretation of applicable zoning ordinances. Id.
D. Property Rights Ombudsman
1. Advisory Opinions
The Utah Legislature created the Utah Office of the Property Rights Ombudsman (“OPRO”) precisely to promote the resolution of land use and development disputes without costly litigation. See Utah Code § 13-43-205. Landowners, developers, aggrieved citizens, and local government officials can petition the OPRO for an advisory opinion on certain land use disputes. The OPRO typically does not issue opinions on disputes between neighbors, only between private citizens on the one hand and local government on the other. If the OPRO accepts the request to issue an opinion, it will analyze the facts, the law, and the legal issues and reach a written legal conclusion called an advisory opinion. These opinions can provide insight and analysis that the parties have not previously considered and that can lead to a resolution without litigation. The opinions are not binding. They serve only to inform and educate. Every effort is made to ensure they apply correct and current law. The beauty of an advisory opinion is that it contains an opinion. The OPRO will often express what the office believes is the likely outcome if the dispute were litigated. This can be highly valuable in allowing, for example, a landowner and his or her attorney to evaluate the risks associated with moving forward on an appeal. It can be highly valuable in allowing a local government to decide whether it is applying a certain ordinance correctly so as to avoid losing an appeal. The advisory opinion is not precedent or evidence. But, under some circumstances it can be used to award attorney’s fees if a court decides a land use issue in the same manner that the OPRO did. See Utah Code § 13-43-205(3).
The OPRO is experienced and authorized in analyzing a variety of land use disputes, including those involving variances, nonconforming uses, vested rights, exactions, conditional uses, and impact fees. The topics the OPRO may address are limited by statute. Utah Code § 13-43-205.
To ask the OPRO to issue an advisory opinion on a certain topic, one need only fill out a form, which can be found online at propertyrights.utah.gov, include any supporting documents, and pay a fee of $150. The requester need pay no other cost. Before one goes to the trouble of filing the form and paying the fee, however, he or she should first call the OPRO to ask if the subject matter and timing of the request are appropriate. Shortly (within approximately four business days) after a request for an advisory opinion is filed, the OPRO will send the request to all involved parties and ask the parties to contact the office to discuss responses to the request and the appointment of a neutral professional.
The timing of a request for an advisory opinion is important. It can be requested at any time before a final decision on a land use application by a local appeal authority, or if no local appeal authority is designated to hear the issue, at any time before the deadline for filing an appeal with the district court. Utah Code § 13-43-205(1)(b). If the subject issue involves an impact fee, the opinion must be requested before the enactment of the fee. Id. If an opinion is requested after these cut-off dates, the OPRO cannot issue an opinion.
Significantly, neither the act of requesting an advisory opinion nor the OPRO’s decision to accept a request, will delay any of the processes of the decision-making stages above. In other words, the deadlines associated with the land use authority and the appeal stages will not be interrupted by the OPRO’s advisory opinion process.
All advisory opinions can be read on the OPRO website. They can be sorted by topic. Practitioners assisting a client in requesting an advisory opinion may want to review some of the already existing advisory opinions on the same topic before filing a request for an advisory opinion. One can read more about advisory opinions on the OPRO website and at Utah Code § 13-43-205. The OPRO can also help landowners and practitioners understand the land use appeal process. They can also provide training to local governments.
2. Mediation and Arbitration by the OPRO
The OPRO also offers free mediation and arbitration services, but only if requested by the landowner, and only for matters involving eminent domain, relocation, and takings. Utah Code § 13-43-204. The local government must participate if arbitration or mediation is requested by the landowner and if mediation or arbitration is determined to be appropriate by the OPRO. To request that the OPRO arrange for mediation or arbitration, the landowner must simply fill out a request form found on the OPRO website. A request for mediation or arbitration to the OPRO tolls the deadline to file an appeal with the district court until 30 days after the Ombudsman issues a final award or declines to mediate or arbitrate. Id. Also, if a case has already been filed in District Court, the OPRO may request a stay if necessary, but the judge has the discretion to deny it.
E. Settlement
Of course, as with any dispute, the disputing parties can attempt to reach certain compromises and settle in a way that both parties can live with. Settlement of land use dispute, however, is faced with obstacles unknown to other types of disputes. For example, the local government cannot resolve a land use dispute in a way that violates the code. The code still has to be followed. The zoning ordinances cannot be circumvented in the name of settlement. Resolution of a dispute must always take into account the public interest and welfare, which the code is designed to protect. A local government settling a land use dispute cannot involve the unlawful surrender of police power. It cannot omit statutory requirements, e.g. requirements regarding public notice and hearing. A settlement that violates the law can be deemed unenforceable. Furthermore, land use decisions often have few or no options to compromise. An application to develop in a way that does not comply with current zoning has fewer settlement options than a dispute about money owed, for example. Also, local government officials may be reluctant to bend too much for fear of political accountability to their constituents.
This does not mean that a settlement cannot be reached. The local government still has the power to enter into contracts. Of course, it is strongly advisable that a formal written agreement be used whenever a land use dispute is settled. When advising their client with regard to a land use settlement, practitioners will want to consider provisions that deal with, for example, indemnification; release of liability, whether a new application must be filed with the local government; whether the local government will guarantee a certain outcome if a new application is filed that meets certain requirements; what will happen with pending lawsuits or other proceedings; how will delays caused by settlement negotiations and new applications be handled; whether the settlement will contemplate a release from damages, even if, for example, a new application is denied; and how statutes regarding public participation and comment on the settlement will be handled.
F. Disclaimer
This content is written for the information and education of its readers only. It should not be construed as legal advice and is not intended to create an attorney-client relationship. Given the general nature of this content, no one should act on it without seeking independent legal advice.