Johnson v. Hermes Associates, Ltd., 20040729.

• Decision Date: 22 November 2005
• Docket Number: No. 20040729.,20040729.
• Citation: 128 P.3d 1151,2005 UT 82
• Parties: Eva C. JOHNSON, an individual; Diane Pearl Meibos, an individual; Alayna J. Culbertson, an individual; and Blaine Johnson, an individual, Plaintiffs and Appellees, v. HERMES ASSOCIATES, LTD., a Utah limited partnership; Nick S. Vidalakis, an individual; Fort Union Associates, L.C., a Utah limited liability company, and Does I-X, Defendants and Appellants.
• Court: Utah Supreme Court

128 P.3d 1151

2005 UT 82

Eva C. JOHNSON, an individual; Diane Pearl Meibos, an individual; Alayna J. Culbertson, an individual; and Blaine Johnson, an individual, Plaintiffs and Appellees, v. HERMES ASSOCIATES, LTD., a Utah limited partnership; Nick S. Vidalakis, an individual; Fort Union Associates, L.C., a Utah limited liability company, and Does I-X, Defendants and Appellants.

No. 20040729.

Supreme Court of Utah.

November 22, 2005.

Rehearing Denied January 18, 2006.

COPYRIGHT MATERIAL OMITTED

Ronald G. Russell, Jeffrey J. Hunt, David C. Reymann, Salt Lake City, for plaintiffs.

Mark O. Morris, David P. Williams, Salt Lake City, for defendants.

WILKINS, Associate Chief Justice:

¶ 1 Appellants seek review of the district court's holdings in this real property dispute, alleging that the district court erred when it (1) granted Plaintiffs' motion for partial summary judgment; (2) awarded mandatory injunctive relief, which imposed specific metes and bounds requirements on Hermes; and (3) declined to balance the equities in granting the motion for partial summary judgment. We affirm the district court on all three of its holdings.

BACKGROUND

I. RELEVANT FACTS

When reviewing a rule 56(c) motion for summary judgment, we recite the facts in the light most favorable to the non-moving party. See Woodbury Amsource, Inc. v. Salt Lake County, 2003 UT 28, ¶ 4, 73 P.3d 362. Thus, in reviewing these facts, we present them in a light most favorable to Appellant Hermes, the commercial developer in this case.

¶ 2 In 1991, Hermes sought to develop property adjoining its existing shopping center known as the Family Center at Fort Union (Family Center). At the time, the adjoining property was located in a portion of unincorporated Salt Lake County, which has since been annexed into Midvale City. Because Hermes did not own all of the adjacent land it desired to use for the Family Center extension, Hermes approached the landowners with offers to purchase their property. All landowners, other than members of the Croxford and Johnson family (Appellees), whose land has been in the family line for over 100 years (the Croxford Property), sold their properties to Hermes. Unable to purchase the Croxford Property, Hermes revised and followed a modified development plan which eliminated building on the Croxford Property but included construction on three sides of it.

¶ 3 Because Salt Lake County ordinances prohibited Hermes's intended use of the purchased land, Hermes requested that the County change local zoning requirements and, in the interim, approve a conditional use permit which would allow Hermes to construct the expanded shopping center. The County approved a change to the zoning ordinance and granted Hermes a conditional use permit,¹ subject to three specific conditions: (1) the Hermes plan must widen 7240 South, a public right-of-way running directly south of Hermes's development site and west of the Croxford Property, by an additional 17 feet, making the public right-of-way 50 feet in width; (2) Hermes must dedicate 8.5 feet of the widening to install curb, gutter, and sidewalk on 7240 South; and (3) the County must vacate the portion of North Union Avenue running north of the Croxford Property. Hermes and the County agreed to satisfy the conditions, and Hermes also conveyed an access easement to the west of the Croxford Property.

¶ 4 The County subsequently passed Ordinance 1275 in August 1994, which vacated and permanently closed the public portion of North Union Avenue north of the Croxford Property. Specifically, the ordinance denied North Union Avenue "public street" status and vacated an eight-foot-wide section of the street's north side while permanently closing the remaining portion. Finally, Ordinance 1275 provided that Hermes convey to the County a twenty-five-foot right-of-way running along the western boundary of the Croxford Property.

¶ 5 Thereafter, Hermes's contractors started blocking off and tearing out portions of North Union Avenue and commenced construction of a commercial structure known as Retail 3, currently occupied by retail tenants. Before Hermes started construction, Appellees, through counsel, notified both Hermes and the County that Retail 3 encroached upon 1070 East Street, the road running from north to south along the Croxford Property's western boundary, and restricted not only private access to their property but also the access of public services such as sanitation, fire, and snow removal. Since the commencement of construction, Appellees have also notified Hermes that the light from large overhanging floodlights and the noise from the loading dock and trash compacting facilities at the Family Center disturb the peaceful use and enjoyment of their property.

II. PROCEDURAL HISTORY

¶ 6 Alleging that the proposed 25-foot-wide public right-of-way violated the County's roadway ordinances, Appellees challenged both the substantive and procedural adoption of Ordinance 1275, seeking to have the County enforce the conditions of Hermes's conditional use permit. Appellees also sought a temporary restraining order to halt the violations, but the complaint was dismissed without prejudice by the district court, and the Appellees were instructed to exhaust administrative remedies. Accordingly, Appellees raised their concerns with the County, requesting that the County enforce the applicable ordinances, building codes, and conditional use permit provisions. Hermes requested that the County grant exceptions to the roadway standards to the extent they were applicable to the streets at issue in this case. The County granted the request.

¶ 7 In 1995 and 1996, Appellees instituted this action against Hermes and re-filed their action against the County, claiming that Hermes had violated county ordinances, roadway standards, and the conditional use permit issued by the County. Although the district court found that Appellees' claims were not barred by res judicata or collateral estoppel, it granted Hermes's cross-motion for summary judgment, concluding that the two streets were not public streets, and therefore, Hermes's actions were in accordance with both the conditional use permit and county requirements.

¶ 8 Appellees sought our review, and in Culbertson v. Board of County Commissioners, 2001 UT 108, 44 P.3d 642 [hereafter Culbertson I],² we reversed the district court's grant of summary judgment by concluding that the streets at issue were public and must comply with the terms of the conditional use permit and other county zoning and roadway ordinances. We also held that the County erroneously granted the roadway exceptions because the County failed to follow its own rule for granting exceptions.³

¶ 9 In Culbertson I, we explained that Appellees would be entitled to injunctive relief if they could prove special damages peculiar to themselves and "`over and above the public injury which may be caused by the violation of the zoning ordinance.'" Culbertson I, 2001 UT 108, ¶ 54, 44 P.3d 642 (quoting Padjen v. Shipley, 553 P.2d 938, 939 (Utah 1976)). Ultimately, we determined that despite Hermes's completed construction of the building extensions (Retail 2 and Retail 3), with a willful and intentional ordinance violation, proper relief to Plaintiffs may require restoration of the road. We remanded the case with specific instructions for the district court to make "finding[s] on summary judgment regarding the extent of plaintiffs' injuries." Id. ¶ 55. The district court granted Appellees motion for partial summary judgment, finding that special damages and irreparable harm were established without any dispute as to material facts. Id.

¶ 10 Hermes now brings this appeal from the district court's decision on remand, arguing that (1) the district court erred in granting Appellees' motion for summary judgment; (2) the specific metes and bounds set forth by the district court's order are contrary to the ordinances in effect at the time, and illogical; and (3) the district court abused its discretion by failing to balance the equities.

ANALYSIS

I. THE DISTRICT COURT'S GRANT OF SUMMARY JUDGMENT WAS CORRECT

¶ 11 We begin by reviewing the district court's grant of partial summary judgment in favor of Appellees. Hermes requests a reversal, claiming to have raised disputed issues of material fact regarding Appellees' special damages and irreparable harm, which render partial summary judgment improper. Summary judgment is proper only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Utah R. Civ. P. 56(c). We review the district court's summary judgment ruling for correctness, granting no deference to its legal conclusions, and consider whether it correctly concluded that no genuine issue of material fact existed. See Lovendahl v. Jordan Sch. Dist., 2002 UT 130, ¶ 13, 63 P.3d 705 Woodbury Amsource, Inc. v. Salt Lake County, 2003 UT 28, ¶ 4, 73 P.3d 362; Utah R. Civ. P. 56(c). Furthermore, as previously noted, "we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the non-moving party," in this case, Hermes. Arnold Indus., Inc., 2002 UT 133, ¶ 11, 63 P.3d 721.

¶ 12 A court may grant a permanent injunction if it determines that (1) the petitioner establishes standing by demonstrating special damages, (2) the petitioner has a property right or protectable interest,⁴ (3) legal remedies are inadequate, (4) irreparable harm would result, (5) court enforcement is feasible, and (6) petitioner merits the injunction after balancing the equities. See 1 Am.Jur.2d Adjoining Landowners § 133 (2004); 42 Am.Jur.2d Injunctions § 33 (2004); Kenneth T. Young, Anderson's American Law of Zoning § 29.11 (4th ed.1997); 13 Moore's Federal Practice § 65 (3d ed.2005). Special damages and...