Anderson v. Provo City Corp.

• Decision Date: 21 January 2005
• Docket Number: No. 20030679.,20030679.
• Citation: 108 P.3d 701,2005 UT 5
• Parties: Jerald and Bonnie Anderson, Michael Johnston, Sheila Johnston, Jonathan Myres, Jim Tills, Gigi Tills Plaintiffs and Appellants, v. Provo City Corp., Defendant and Appellee.
• Court: Utah Supreme Court

2005 UT 5

108 P.3d 701

Jerald and Bonnie Anderson, Michael Johnston, Sheila Johnston, Jonathan Myres, Jim Tills, Gigi Tills Plaintiffs and Appellants, v. Provo City Corp., Defendant and Appellee.

No. 20030679.

Supreme Court of Utah.

FILED January 21, 2005.

This opinion is subject to revision before final publication in the Pacific Reporter.

Bruce R. Baird, Salt Lake, for plaintiffs.

David C. Dixon, Provo, Jody K. Burnett, Salt Lake, for defendants.

DURHAM, Chief Justice:

¶1 The City of Provo amended a zoning ordinance governing residential neighborhoods near Brigham Young University to allow only those homeowners who reside in their homes to rent out "accessory" apartments. A group of homeowners brought suit challenging the amendment, and the district court granted summary judgment to Provo. In this appeal of that decision, the homeowners argue that the amended ordinance (1) exceeds Provo's legislative authority by regulating land ownership rather than land use, (2) violates the equal protection guarantees of the United States and Utah Constitutions, (3) is an invalid restraint on the alienation of property, and (4) unconstitutionally burdens the right to travel. We affirm.

REGULATORY AND PROCEDURAL BACKGROUND

¶2 The history of zoning regulations in the area around Brigham Young University (BYU), located in Provo, reveals the city's longstanding concern with accommodating the university's need for student housing while maintaining the character of residential neighborhoods.¹ The earliest regulation described in the record, dating back to at least 1959, allowed up to four boarders in a single-family dwelling as long as the house's construction did not reveal the boarders' presence or provide them with separate cooking facilities.

¶3 In 1974, the general structure of the current zoning scheme was put into place. Under this scheme, portions of the Wasatch and Pleasant View neighborhoods near BYU are zoned as single-family neighborhoods,² but supplementary residential overlay (S Overlay) provisions allow residents in these neighborhoods to construct accessory apartments in their basements or upper floors and rent these apartments to up to four occupants, often students.³ The Provo City Code describes the purpose of the S Overlay provisions thus:

to recognize the unique character of Provo City as a "university community" and to accommodate supplementary living accommodations in some appropriate single family residential areas of the community. The[] [S Overlay] provisions are intended to meet community demands for residential accommodations for semitransient residents in areas of the community adjacent to major educational and institutional uses. This overlay zone is designed to provide an alternative living environment for said semi-transient residents to that normally found within the higher density multiple residential zones. The (S) overlay zone will therefore protect and enhance the desirable aesthetic characteristics of the underlying single family residential zone. . . . The sole function of the overlay is to permit alternate methods of housing the occupancy otherwise permitted in an R1 [single-family residential] zone.

Provo City Code § 14.30.010.

¶4 Until the 2000 amendment under review in this case, owners with accessory apartments were not required to live in the primary residence in order to rent the apartment. Thus, owners could have two sets of tenants in such a dwelling: one, meeting the definition of "family" under the Provo zoning laws, occupying the primary residence; and another, whose identity the zoning laws did not restrict but who were likely to be university students, occupying the accessory apartment. In addition, there was no limit on how many such dwellings a single owner could possess.

¶5 In 1997, some owners in the Wasatch and Pleasant View neighborhoods began an effort to replace the S Overlay with an accessory apartment overlay (A Overlay), which would restrict the ability to rent out accessory apartments to those owners who occupy the primary residence. See Provo City Code § 14.46.030(2)(d)(i). However, the petition requesting adoption of the A Overlay failed to garner the signatures necessary to bring the proposal before the city planning commission. See id. § 14.46.060(1)(c) (requiring seventy percent of property owners within the affected area to sign such a petition). In 1999, these owners decided to pursue an alternative means of establishing an owner occupancy requirement in their neighborhoods, bypassing the signature requirement by proposing a textual amendment to the S Overlay provision itself. See id. § 14.02.020.

¶6 Following neighborhood meetings and a public hearing, the Provo City Planning Commission staff issued a report on January 26, 2000 recommending that the owner occupancy requirement be approved. The report suggested that limiting accessory apartment rental to owner occupants would promote the original purpose of the S Overlay, which, since its establishment, had been undermined by difficulties in enforcing congestion and nuisance problems. Although accessory apartments attached to owner occupied residences also contributed to these problems, the report noted that "as a general trend there seems to be a higher rate of violations at property where the owner does not reside." The report also indicated the neighborhood residents' feeling "that the[ir] stability is disintegrating one home at a time from what was once a predominantly affordable family owner occupied neighborhood." The proposed amendment was thus intended to "prohibit[] outside investors from targeting these neighborhoods[,] buying up homes and essentially creating duplexes that do not contribute to overall stability of the neighborhood."

¶7 An ad hoc technical committee was then appointed, and an independent consultant retained, to consider the length of the transition period, after which those currently not in compliance with the proposed owner occupancy requirement would have to comply. The commission staff subsequently revised its report to recommend that the period be at least five years. On April 4, 2000, the Provo City Municipal Council held a public hearing and, following extensive public comment and discussion, voted unanimously to adopt a modified version of the commission's proposal. The approved amendment was put into effect by ordinance 2000-15. The ordinance amended the S Overlay provisions in Provo City Code section 14.30, giving nonconforming owners until at least April 4, 2003 to comply with the revised occupancy requirements, which now read as follows with subsections (c) and (d) added by ordinance 2000-15:

Occupancy: For purposes of a one family dwelling with an accessory dwelling unit, . . . the following occupancy rules shall apply:

(a) One of the dwelling units within the structure shall be occupied by:

(i) One (1) person living alone; or

(ii) The head of household and all persons related to the head of household by marriage or adoption as a parent, child, grandchild, brother, sister, uncle, aunt, nephew, niece, great-grandparent or great-grandchild. For purposes of this paragraph, two (2) or more of these persons must share the legal relationship of husband and wife, or parent and child or grandparent and child. Such parent or grandparent must actually reside in the subject dwelling.

(b) The remaining dwelling unit within the structure shall be occupied by no more than four (4) related or unrelated persons.

(c) One of the dwelling units within the structure shall be occupied by the owner of the property. Owner occupancy shall not be required when:

(i) The owner has a bona fide, temporary absence of three (3) years or less for activities such as temporary job assignments, sabbaticals, or voluntary service. Indefinite periods of absence from the home shall not qualify for this exception.

(ii) The owner is placed in a hospital, nursing home, assisted living facility or other similar facility.

(d) Owner occupancy as defined in this section shall mean:

(i) a human being who possesses more than fifty (50) percent ownership in the dwelling and said dwelling is the primary residence of the owner; or

(ii) a family trust whose primary purpose is for estate planning by one or more trustors who create the trust, place the dwelling in such trust and whose primary residence is such dwelling.

Provo City Code § 14.30.030(2).

¶8 A group of homeowners (Owners) affected by the amendment brought suit against Provo on April 4, 2001, seeking either to overturn ordinance 2000-15 as facially invalid or to obtain compensation for their investment losses through as-applied claims. The Owners and Provo filed cross-motions for partial summary judgment on the Owners' facial challenges. On July 14, 2003, following a hearing, the district court granted Provo's motion and denied the Owners' motion. Pursuant to the stipulation of the parties, the court then dismissed the Owners' as-applied challenges without prejudice, thus rendering its summary judgment a final order in the case, and stayed the effective date of ordinance 2000-15 pending a decision on appeal.

¶9 The Owners filed a direct appeal in this court. We have jurisdiction pursuant to Utah Code section 78-2-2. Utah Code Ann. § 78-2-2(3)(j) (2002); Bradley v. Payson City Corp., 2003 UT 16, ¶ 35, 70 P.3d 47 (holding the supreme court has original appellate jurisdiction "over district court review of land use decisions by local governmental entities").

STANDARD OF REVIEW

¶10 Summary judgment is appropriate only where there are no genuine issues of material fact. Sandy City v. Salt Lake County, 827 P.2d 212, 217 (Utah 1992). "Because summary judgment is granted as a matter of law rather than fact, we are free to reappraise the trial court's legal conclusions," reviewing them for correctness. Id. at 218. In doing so, "we view the [undisputed] facts in a light most favorable to the party against which the motion was granted." Id. at 215.

...