Harper v. Summit County
| Decision Date | 06 February 2001 |
| Docket Number | No. 981493, No. 981591., No. 981495 |
| Citation | 2001 UT 10,26 P.3d 193 |
| Parties | Jane HARPER, Richard D. Harper, Frank Cattelan, and Richard Richins, Plaintiffs, Respondents, and Cross-Petitioners, v. SUMMIT COUNTY, a body politic, Summit County Commission, Summit County Planning Commission, and Utelite Corporation, Defendants, Petitioners, and Cross-Respondents. |
| Court | Utah Supreme Court |
James L. Warlaumont, Jeffrey W. Appel, Benjamin T. Wilson, Salt Lake City, for plaintiffs.
Jody K. Burnett, Salt Lake City, for Summit County, defendants.
Eric C. Olson, Salt Lake City, for Utelite Corp.
On Certiorari to the Utah Court of Appeals
INTRODUCTION
¶ 1 Summit County, Summit County Commission, Summit County Planning Commission (collectively the County), and Utelite Corporation jointly petitioned for a writ of certiorari to the court of appeals, seeking review of its decision that the district court properly granted Jane Harper, Richard D. Harper, Frank Cattelan, and Richard Richins (collectively Harpers) partial summary judgment on their claim for declaratory and injunctive relief. Harpers cross-petitioned for review, asserting that the court of appeals correctly upheld the judgment on their claims for declaratory and injunctive relief, but erred in dismissing their claims (1) under the Utah Open and Public Meetings Act, (2) for denial of due process, and (3) for attorney fees. See Harper v. Summit County, 963 P.2d 768 (Utah Ct.App.1998)
.
¶ 2 The history of this case is long and somewhat convoluted.1 It began in 1988 when Utelite decided to relocate a railroad loading facility from Wanship, Utah, to property it leased from Union Pacific Railroad in Echo, Utah. The County gave verbal approval of the relocation at a planning commission meeting held December 13, 1988, stating that it considered the facility a permitted use. The County shortly thereafter confirmed its approval in a letter to Utelite.
¶ 3 Harpers, who live near the relocated facility in Echo, filed this action against the County in third district court alleging that the County violated its development code in approving the relocation; that it violated the Utah Open and Public Meetings Act by failing to notify the public that the issue would be discussed at a meeting of the planning commission and by failing to include the discussion of the issue in the minutes of the meeting; and that the County had violated their due process rights by approving a facility that caused them to lose the enjoyment of their property. Harpers sought removal of the facility pursuant to section 1.16 of the Summit County Development Code and section 17-27-23 of the Utah Code2 and claimed attorney fees pursuant to section 54-2-9 of the Utah Code. They later amended the complaint, adding Utelite as a defendant without adding any claims specific to it.
¶ 4 Harpers moved for partial summary judgment against the County on the above claims.3 Judge Homer Wilkinson granted the motion on their development code, open meetings act, and due process claims, and ordered the County to remove the facility "with the stay of the effectiveness of [the injunctive relief] for sixty (60) days from the date of this order."4
¶ 5 Following the bench ruling, Harpers again amended their complaint, adding claims specifically against Utelite, including common law and statutory nuisance and an attorney fees claim under 42 U.S.C. §§ 1983, 1988.5 Judge Glenn Iwasaki later stayed removal of the facility pending final resolution of all claims still at issue.
¶ 6 Before trial on the claims still pending, Judge Frank G. Noel awarded attorney fees to Harpers under section 52-42-9, but held that they had failed to adequately plead a cause of action under section 1983 and were therefore not entitled to attorney fees under section 1988. He also found the facility to be a nuisance per se. Because of the nuisance ruling, Harpers stipulated to the dismissal of all remaining theories of liability, and the trial went forward only on the issue of damages on the nuisance claim, which were awarded in an amount totaling $14,500.
¶ 7 Judge Noel did not award equitable relief in addition to that awarded by Judge Wilkinson in the summary judgment because he found that the facility presently "(a) is not injurious to the plaintiffs, (b) does not adversely affect the plaintiff[s'] use and enjoyment of their property, and (c) does not cause any property damage to the plaintiffs." In fact, he found the facility to be a nuisance per se (Emphasis added.)
¶ 8 The parties filed cross-appeals with the court of appeals, which affirmed the district court's decision regarding the development code violation and injunctive relief, but held that the open meetings act claim was barred by the statute of limitations and thus reversed the award of attorney fees based on it. See Harper, 963 P.2d at 781
. The court of appeals also reversed Judge Wilkinson's conclusion that the County had violated the Harpers' due process rights and Judge Noel's finding that the facility was a nuisance per se. See id.
¶ 9 On this certiorari review, the County and Utelite jointly seek reversal of the court of appeals's decision affirming summary judgment on the development code violation claim and granting injunctive relief, while the Harpers seek reversal on the nuisance per se, due process, and open meetings act claims.
¶ 10 Summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See Utah R. Civ. P. 56(c); Copper State Leasing Co. v. Blacker Appliance & Furniture Co., 770 P.2d 88, 89 (Utah 1988). On certiorari, we do not review the decision of the trial court but of the court of appeals, and we do so for correction of error. See State of Utah in the interest of M.W. and S.W., 2000 UT 79, ¶ 8, 12 P.3d 80
.
¶ 11 We address first whether the court of appeals erred in affirming the trial court's determination on summary judgment that the County violated the Summit County Development Code. In their memorandum in support of summary judgment, Harpers asserted that the County violated the development code in four ways: (1) failing to issue a certificate of zoning compliance, (2) failing to issue a building permit before Utelite began construction, (3) concluding that the facility was a permitted use,6 and (4) failing to order Utelite to cease work on and operations of the facility after becoming aware it was being constructed without a permit.
¶ 12 Though the trial court concluded the County had violated the development code, it did not specify how and did not otherwise explain its ruling. The court of appeals noted this failure, but found sufficient grounds available to the trial court upon which to affirm the decision. See Harper, 963 P.2d at 773
. We now review the court of appeals's conclusion.
¶ 13 The first two alleged violations are based on section 1.9 of the development code, which provides that Summit County Dev.Code § 1.9 (1989). As previously stated, Harpers asserted the County was at fault in not issuing a certificate of zoning compliance and a building permit to Utelite before Utelite began construction of the facility. The court of appeals observed that the County did not deny the absence of a certificate of zoning compliance or a building permit. See Harper, 963 P.2d at 773
. We presume, based on that observation, that the court of appeals concluded the certificate and permit did not exist and that the County had thus violated the code.
¶ 14 We disagree and hold that the County did not violate the development code for failing to issue a certificate of zoning compliance and building permit: the County did issue a certificate of zoning compliance, and the County had no duty to issue a building permit before construction began.
¶ 15 First, the County issued Utelite a certificate of zoning compliance in the form of a letter from the chairman of the planning commission to Carsten Mortensen of Utelite dated January 13, 1989. The letter, written on County letterhead, stated that "the Utelite operation ... would be considered a permitted use at the Echo site." Section 1.6(11) of the development code defines a certificate of zoning compliance as "[a] certificate issued by the Zoning Administrator of Summit County, or his designated representative, stating that the proposed use of the building or land conforms to the requirements of this Code."7 As is clear from this definition, the purpose of the certificate is to give the County the opportunity to ensure that a proposed project complies with zoning designations in the code. The letter stating that the facility would be a "permitted use" is evidence that the County had reviewed the project and had determined that it complied.8 Thus summary judgment was not appropriate under this theory. ¶ 16 Second, the County did not violate the development code by not issuing a valid building permit before Utelite began construction on the facility because it had no duty to issue a permit; there is no evidence in the record that an application for a permit had been submitted to the County.9 Harpers have not shown, and we have been unable to find, any authority placing a duty on the County to issue a building permit when it has not received an application for one. The language of section 1.9 instead places the burden of applying for a building permit on the person or entity seeking...
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