246 P.3d 102 (Utah 2010), 20070266, Gillmor v. Summit County

Docket Nº:20070266.
Citation:246 P.3d 102, 2010 UT 69
Opinion Judge:DURRANT, Associate Chief Justice:
Party Name:Nadine GILLMOR, individually and as trustee of the Nadine Fausett Gillmor Trust; Evergreen Development; Milton O. Bitner Company; Ella M. Pace; Dwayne M. Pace, trustee of the Dwayne M. Pace revocable trust; Joan J. Pace, trustee of the Joan J. Pace revocable trust; Gale W. Pace; Kathleen D. Pace; and Anderson Development, LC, Plaintiffs and Appella
Attorney:Bruce R. Baird, Salt Lake City, for plaintiffs. Jody K. Burnett, Robert C. Keller, Steven W. Allred, Salt Lake City, for defendants.
Judge Panel:Chief Justice DURHAM, Justice PARRISH, Justice NEHRING, and Justice LEE concur in Associate Chief Justice DURRANT's opinion.
Case Date:December 28, 2010
Court:Supreme Court of Utah
 
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Page 102

246 P.3d 102 (Utah 2010)

2010 UT 69

Nadine GILLMOR, individually and as trustee of the Nadine Fausett Gillmor Trust; Evergreen Development; Milton O. Bitner Company; Ella M. Pace; Dwayne M. Pace, trustee of the Dwayne M. Pace revocable trust; Joan J. Pace, trustee of the Joan J. Pace revocable trust; Gale W. Pace; Kathleen D. Pace; and Anderson Development, LC, Plaintiffs and Appellants,

v.

SUMMIT COUNTY, a political subdivision of the State of Utah; Summit County Board of Adjustment, a quasi-judicial body; Summit County Attorney; and John Does 1-20, Defendants and Appellees.

No. 20070266.

Supreme Court of Utah.

December 28, 2010

Page 103

Bruce R. Baird, Salt Lake City, for plaintiffs.

Jody K. Burnett, Robert C. Keller, Steven W. Allred, Salt Lake City, for defendants.

DURRANT, Associate Chief Justice:

INTRODUCTION

¶ 1 This case comes to us on direct appeal from the district court and involves a land use dispute between appellant, Nadine Gillmor, and appellee, Summit County (the " County" ). We are asked to determine whether the district court erred in granting summary judgment in favor of the County on the ground that all of Gillmor's claims are time barred. Additionally, we must decide whether a plaintiff seeking review of a land use decision under section 801(2)(a) of the Utah County Land Use Development and Management Act (" CLUDMA" ) is permitted to challenge the facial validity of a zoning ordinance upon which the county's decision is based, or rather whether such challenges must be brought within thirty days of the enactment of the applicable ordinance.

¶ 2 First, we hold that Gillmor's claims are not time barred because section 801(2)(a) of CLUDMA entitles petitioners to district court review of any county land use decision that adversely affects their interests so long as the decision is made in the exercise or violation of the provisions of CLUDMA and a petition for review is filed within thirty days of the county's decision. Since Gillmor has complied with these requirements, we conclude that her claims are timely and entitled to judicial review.

¶ 3 Second, we hold that once petitioners have satisfied the jurisdictional requirements of section 801(2)(a) of CLUDMA, they may

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assert any and all claims related to the alleged arbitrary, capricious, or illegal nature of a county's land use decision-including facial challenges to the zoning ordinance upon which the decision was based. Accordingly, we conclude that Gillmor was entitled to challenge the County's zoning ordinances in her Petition for Review. Based on these conclusions, we reverse the district court's grant of summary judgment in favor of the County and remand this case for further proceedings.

BACKGROUND

¶ 4 Because this case comes to us on summary judgment, we construe the facts in a light most favorable to Gillmor, the nonmoving party. CLUDMA grants counties power to " enact all ordinances, resolutions, and rules and [to] enter into other forms of land use controls and development agreements that they consider necessary or appropriate for the use and development of land within ... the[ir] county." 1 In 1995, acting pursuant to this authority, the County established the Synderville Basin Planning District by ordinance. Following a 1997 amendment to CLUDMA, the Synderville Basin Planning District was converted into a " township."

¶ 5 In November 1997, the Synderville Basin Planning Commission proposed a general plan (the " 1997 Plan" ) to the Synderville Township concerning zoning ordinances and subdivision regulations in the area. After a lengthy public process, the 1997 Plan was approved by the Summit County Board of County Commissioners (the " BCC" ). Several months later, in March 1998, the BCC adopted the Synderville Basin Development Code (the " 1998 Code" ), which provides various ordinances relating to the development of property throughout the area.

¶ 6 Gillmor is the owner of over 300 acres of real property in the Synderville Basin Area. She also owns approximately 208 acres in the same area in her capacity as trustee of the Nadine Fausett Gillmor Trust. In 1998, Gillmor filed a lawsuit against the County challenging the adoption of the 1997 Plan and 1998 Code. In her complaint, Gillmor argued that the County's development ordinances violated constitutional guarantees of due process and equal protection. Additionally, she requested a declaratory judgment that the ordinances were " void ab initio." One year after commencement of the suit, it was voluntarily dismissed without prejudice.

¶ 7 In early 2004, after several attempts to sell her property to potential developers failed due to zoning restrictions, Gillmor submitted an application to the County (the " Amendment Application" ) requesting that the text of the 1998 Code be amended and that the requested changes be applied to her property. After public hearings, the BCC voted to deny the Amendment Application on the basis that it did not meet the criteria set forth in the 1998 Code.

¶ 8 Pursuant to section 801(2)(a) of CLUDMA, Gillmor petitioned the district court for review of the BCC's denial of her Amendment Application. The parties concede that Gillmor's Petition for Review was filed within thirty days of the BCC's final decision. In her petition, Gillmor raised twenty-one separate claims. Twenty of those claims-claims one through nineteen and twenty-one-contended that the County's 1997 Plan and 1998 Code violated CLUDMA and both the Utah and United States Constitutions. Based on these alleged violations, Gillmor's petition argued that the 1997 Plan and 1998 Code were " void ab initio" and unenforceable. Additionally, in her twentieth claim, Gillmor argued that " the County's denial of [her] zoning application was arbitrary, capricious and/or illegal."

¶ 9 Five months after filing her petition for review, Gillmor submitted a plat application to the County (the " Plat Application" ). In her Plat Application, Gillmor argued that the 1997 Plan and 1998 Code were unconstitutional and invalid. Specifically, Gillmor contended that the County's zoning ordinances: (1) were " so vague, defective, undefined, discriminatory, and overreaching" as to violate Gillmor's " state and federal [constitutional] rights" and (2) violated CLUDMA based on several procedural deficiencies, such as the alleged failure to include a valid zoning map.

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Based on these alleged flaws, Gillmor's application contended that her request could not be processed under the requirements set forth in the 1997 Plan and 1998 Code. Instead, Gillmor asserted that the County was required to accept the changes requested in her Plat Application because the request complied with other relevant provisions of state law.

¶ 10 On November 4, 2004-one day after Gillmor submitted her Plat Application to the County-the Summit County Director of Community Development returned the application to Gillmor with a letter denying her request (the " Denial Letter" ). The Denial Letter notified Gillmor that she would have to follow the requirements set forth in the 1997 Plan and 1998 Code to obtain any right to develop her property at the densities requested in her Plat Application. The Denial Letter also informed Gillmor of the proper means of filing a valid plat application under the 1997 Plan and stated that the densities she requested could not be approved without complying with the plan's requirements. These requirements include submitting a " Sketch Plan" and an application for a Specially Planned Area Zone.

¶ 11 After receiving the Denial Letter, Gillmor appealed the County's decision to not review her application to both the Board of Adjustment (the " BOA" ) and the BCC. At public hearings regarding Gillmor's appeal, the BOA addressed the question of " whether the community development director correctly applied the existing code" in rejecting and returning Gillmor's applications without processing them. But at the suggestion of the County Attorney, the BOA " did not consider the claims relating to the illegality of the General Plan and Development Code." Following the hearings, the BOA affirmed the Director of Community Development's decision to reject the Plat Application. After receiving notice of the BOA's decision, Gillmor amended her initial Petition for Review to include claims relating to the denial of her Plat Application.

¶ 12 Shortly after Gillmor filed her Petition for Review, the County filed a motion for summary judgment arguing that (1) Gillmor's claims were barred by the relevant statute of limitations and laches, (2) the BOA had legislative discretion to deny Gillmor's applications, and (3) the County's land use ordinances as applied to Gillmor's applications were legal. The district court granted the County's motion. In support of its decision, the court concluded that (1) Gillmor's claims were time barred and (2) Gillmor's challenge of the County's decision to deny her applications was not entitled to judicial review because her applications did not comply with the County's land use ordinances. In arriving at these conclusions, the district court noted that although there were many facts in dispute, most of the facts were not material in that " they d[id] not govern the [ sole ] issue to be resolved," which was whether the petition was " timely." 2 Based on this narrow scope, the district court determined that the only facts material to the issue before it were that the challenged ordinance was adopted no later than March 9, 1998, and that Gillmor filed her claims in 2004.

¶ 13 Turning to the applicable statute of limitations, the court surmised that " [h]owever characterized or labeled, [Gillmor's] claims are not really an appeal from a land use decision as applied...

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