Cme v. Tooele County ex rel. Toole County Com'n.

• Decision Date: 31 July 2009
• Docket Number: No. 20070320.,20070320.
• Citation: 214 P.3d 95,2009 UT 48
• Parties: CEDAR MOUNTAIN ENVIRONMENTAL, INC., a Utah Corporation, and Charles A. Judd, an individual, Plaintiffs and Appellants, v. TOOELE COUNTY, a political subdivision of the State of Utah, acting by and through the TOOELE COUNTY COMMISSION, Defendant and Appellee, EnergySolutions, LLC, a Utah Limited Liability Company, Intervenor, Defendant, and Appellee.
• Court: Utah Supreme Court

214 P.3d 95

2009 UT 48

CEDAR MOUNTAIN ENVIRONMENTAL, INC., a Utah Corporation, and Charles A. Judd, an individual, Plaintiffs and Appellants, v. TOOELE COUNTY, a political subdivision of the State of Utah, acting by and through the TOOELE COUNTY COMMISSION, Defendant and Appellee, EnergySolutions, LLC, a Utah Limited Liability Company, Intervenor, Defendant, and Appellee.

No. 20070320.

Supreme Court of Utah.

July 31, 2009.

James S. Lowrie, Lewis M. Francis, Salt Lake City, for plaintiffs.

Barton H. Kunz II, Craig V. Wentz, Salt Lake City, for defendant Tooele County.

Alan L. Sullivan, Troy L. Booher, Tyler L. Murray, Salt Lake City, for Intervenor-defendant Energy Solutions.

AMENDED OPINION^*

DURHAM, Chief Justice:

¶ 1 Appellants, Cedar Mountain Environmental and Charles Judd (collectively, CME), appeal the district court's grant of summary judgment to Tooele County (the County) and EnergySolutions, LLC and the denial of CME's cross-motion for summary judgment. We reverse.

BACKGROUND

¶ 2 CME transports low-level radioactive waste. Interested in developing a nuclear material disposal site, CME once owned and, at the time of this appeal, leased property in Tooele County that adjoins the location of EnergySolutions' nuclear material disposal site.

¶ 3 To establish radioactive material disposal sites in Tooele County, applicants must obtain a conditional use permit and locate their disposal facilities within the hazardous waste corridor. In 1987 Tooele County granted EnergySolutions a conditional use permit to permanently dispose of radioactive waste material on the property located within Section 32. In April 2003 CME applied to Tooele County for a temporary conditional use permit to store low-level radioactive waste on Section 29, the adjoining property to Section 32. At the time, all of the Section 29 property was located in the hazardous waste corridor. EnergySolutions opposed this application. In September 2003, the Tooele County Planning Commission denied CME's conditional use permit application based on CME's failure to prove the need for another radioactive waste facility in Tooele County. The Tooele County Board of Commissioners affirmed the denial in March 2004.

¶ 4 In January 2005 CME granted a purchase option on parcel B of Section 29 to Broken Arrow, Inc. CME then sold the remaining property it owned in Section 29 to EnergySolutions. On April 12, 2005, the Tooele County Board of Commissioners enacted ordinance 2005-11, which changed the configuration of the hazardous waste corridor, greatly reducing its size. On April 18, 2005, the Tooele County Board of Commissioners approved EnergySolutions' request to amend the 1987 Conditional Use Permit to include its newly acquired Section 29 property. CME initiated a declaratory and inverse condemnation action on May 12, 2005 in the district court. CME argued that Tooele County's decisions to amend EnergySolutions' conditional use permit and reduce the size of the hazardous waste corridor ignored existing land use ordinances, notice requirements, and also evidenced a bias in favor of EnergySolutions.

¶ 5 In May 2005, after CME filed suit, Broken Arrow exercised its option to purchase parcel B of Section 29 from CME. Broken Arrow then sold this property to EnergySolutions. Following the sale, CME and EnergySolutions entered a lease agreement wherein CME leased parcel B from EnergySolutions.

¶ 6 In the district court action, EnergySolutions moved for summary judgment, arguing, among other things, that CME lacked standing to bring the case. CME responded with a cross-motion for summary judgment, asking the district court to find that the County's decisions to amend the conditional use permit and reduce the hazardous waste corridor were arbitrary, capricious, or illegal. The district court granted EnergySolutions' motion, holding that CME lacked standing to challenge the County's decisions and that CME's claims were moot.

STANDARD OF REVIEW

¶ 7 "Granting summary judgment is appropriate only in the absence of any genuine issue of material fact and where the moving party is entitled to judgment as a matter of law." S. Utah Wilderness Alliance v. Automated Geographic Reference Ctr., 2008 UT 88, ¶ 12, 200 P.3d 643. Therefore, when "reviewing a district court's grant of summary judgment, we review the facts and all reasonable inferences in the light most favorable to the nonmoving party." Id. Further, we grant "no deference to the lower court's legal conclusions and review them for correctness." Id. More specifically, for standing, we review legal determinations for correctness, affording deference for "factual determinations that bear upon the question of standing," but minimal deference to the district court's application of the facts to the law. Jones v. Barlow, 2007 UT 20, ¶ 10, 154 P.3d 808. "[A]ppellate courts review the issue of mootness de novo." Riverview Trenton R.R. Co. v. DSC, Ltd., 486 F.3d 940, 944 (6th Cir.2007).

DISCUSSION

I. CME HAS STANDING TO CHALLENGE BOTH LAND USE DECISIONS

¶ 8 The County Land Use, Development, and Management Act (CLUDMA) governs land use challenges. Utah Code Ann. § 17-27a-801(2)(a) (2005 & Supp.2008). Under CLUDMA, "[a]ny person adversely affected by a final decision made in the exercise of or in violation of the provision of this chapter may file a petition for review of the decision with the district court within 30 days after the local land use decision is final." Utah Code Ann. § 17-27a-801(2)(a) (2005 & Supp.2008) (emphasis added). This statute incorporates the traditional standing test, which requires a party to (1) "assert that it has been or will be `adversely affected by the [challenged] actions'"; (2) "allege a causal relationship `between the injury to the party, the [challenged] actions and the relief requested'"; and, (3) "request relief that is `substantially likely to redress the injury claimed.'" Sierra Club v. Utah Air Quality Bd., 2006 UT 74, ¶ 19, 148 P.3d 960 (emphasis added)(alterations in original)(quoting Jenkins v. Swan, 675 P.2d 1145, 1150 (Utah 1983)). Thus, a party cannot fall back on the traditional standing test if it fails CLUDMA's statutory grant of standing, as both tests share the element of an adverse effect. However, the statutory and the traditional common law tests are not the only avenues to gain standing; Utah law also allows parties to gain standing if they can show that they are an appropriate party raising issues of significant public importance—commonly referred to as the alternative standing test. See id. ¶ 35; Wash. County Water Conservancy Dist. v. Morgan, 2003 UT 58, ¶ 17, 82 P.3d 1125 (stating that a party that cannot establish statutory standing must show standing under the traditional or alternative standing tests). In this case, CME argues it has alleged sufficient facts to establish both statutory and alternative standing. We address each argument in turn.

A. CME Has Standing Under CLUDMA

¶ 9 To obtain standing under CLUDMA, a party must show that it is adversely affected by a county land use decision. Utah Code Ann. § 17-27a-801(2)(a). Because this requirement is identical to the first element of traditional standing, we rely on traditional standing case law to interpret the statutory requirement. Recently this court described an adverse effect as an actual or potential injury that is "sufficiently particularized" to give a party a "personal stake in the outcome of the dispute." Sierra Club, 2006 UT 74, ¶ 23, 148 P.3d 960. Focusing on the personal stake, we explained in Sierra Club that as long as the injury has a direct effect on the complaining party, and the case presents a concrete dispute suited to resolution by the judiciary, "others may also share their concerns and be subject to the same specific, individualized injuries." Id. ¶ 24. Yet, if the injury complained of is a general injury to the community, the party does not have a personal stake in the dispute, and thus, has not shown that it is adversely affected. Id.

¶ 10 Specific to land use cases, we have determined that to have a personal stake in the outcome of a land use decision, a party must own or occupy property within the jurisdiction of the decision-making body. Lund v. Cottonwood Meadows Co., 15 Utah 2d 305, 392 P.2d 40, 42 (1964).¹ On May 12, 2005, when CME initiated this action, it owned parcel B of Section 29. Therefore, because "[s]tanding is determined as of the time the action is brought," Nova Health Sys. v. Gandy, 416 F.3d 1149, 1154 (10th Cir.2005), CME has satisfied this requirement.

¶ 11 The appellees argue that while CME alleged a particularized injury, it failed to prove the potential of such harm; this argument is not supported by our case law. In most cases, a party must only allege an adverse effect to gain standing. Appellees rely on the court of appeals' recent decision in Specht v. Big Water Town to establish a proof requirement. 2007 UT App 335, 172 P.3d 306. In Specht, the court stated that to have standing to pursue a declaratory judgment a party must "allege and prove special damages." Id. ¶ 11. What the court of appeals intended by this statement is unclear; the court did not discuss the extent of proof required because the plaintiff had not sufficiently alleged a particularized injury. Further, the interpretation of this holding offered by the appellees is not supported by existing precedent. Instead, all the cited cases in Specht merely stand for the position that a party must have standing to seek declaratory relief—something very different from requiring a party to prove its alleged harm at the standing analysis stage. See id.

¶ 12 This court rarely imposes a requirement that a party prove its alleged harm, or even causation, to establish standing. Sierra Club, 2006 UT 74, ¶ 28 n. 3, ¶ 32, 148 P.3d 960. This makes sense because "[s]tanding questions arise early in the litigation, usually before discovery and the introduction of the evidence"; and to require a...