Lynton v. Alpine City

• Decision Date: 22 July 2010
• Docket Number: No. 20090430-CA.,20090430-CA.
• Court: Utah Court of Appeals
• Parties: PEN & INK, LLC, a Utah limited liability company; and David Lynton, Petitioners and Appellants, v. ALPINE CITY, Respondent and Appellee.

238 P.3d 63

661 Utah Adv. Rep. 9

PEN & INK, LLC, a Utah limited liability company; and David Lynton, Petitioners and Appellants, v. ALPINE CITY, Respondent and Appellee.

No. 20090430-CA.

Court of Appeals of Utah.

July 22, 2010.

Stephen Quesenberry and Aaron R. Harris, Provo, for Appellants.

David L. Church, Salt Lake City, for Appellee.

Before Judges McHUGH, ORME, and VOROS.

MEMORANDUM DECISION

VOROS, Judge:

¶ 1 Plaintiffs David Lynton and Pen & Ink, LLC, (collectively, Lynton) petitioned AlpineCity (Alpine) for approval of Lynton's residential building plans. The Alpine Planning Commission and the Alpine City Council both denied the request. Lynton sought judicial review. The parties filed cross-motions for summary judgment; the district court granted Alpine's motion and denied Lynton's. Lynton appeals. We affirm.

BACKGROUND

¶ 2 In 1995, several property owners in Utah County sought to annex their subdivision to Alpine. To this end, they signed an Annexation Agreement with Alpine. The Annexation Agreement describes the terms of the annexation, including restrictions on building density, open space, and water use. The owners agreed “that a substantial portion of the annexed property is to be kept undeveloped” and that “those portions of the annexation area not included within proposed lots shall be preserved as natural open space area.”

¶ 3 To maintain sufficient open space, the Annexation Agreement states that “on lots larger than 30,000 square feet ... no more than 50% of the natural landscape will be disturbed and no more than 50% of the lot area will be fenced.” However, the Annexation Agreement gives Alpine the authority to “approve minor adjustments to lot lines, street locations and similar details in the preliminary and final plat approval process where considered necessary to more adequately conform to zoning or subdivision regulations or improve the overall design of the project.”

¶ 4 The Annexation Agreement was signed by each property owner in the subdivision, including Lynton's predecessor in interest. Each signature block on the signatory pages states, “The undersigned Owner of property in Utah County hereby accepts the conditions of the pr[ec]eding Annexation Agreement of the ‘Freeze/Chrysalis/Sundial Willow Canyon Annexation Application’ which compr [i]ses seven (7) pages, together with annexation plat and development plan also attached as exhibit ‘A’ and ‘B.’ ”

¶ 5 The body of the Annexation Agreement refers to two documents. The first is described as “a policy of annexation for the properties generally known as the Freeze, Chrysalis, Sundial, Willow Canyon, annexations which is attached as Exhibit A to this agreement.” The second is a “development plan which is Attachment B to the annexation policy declaration.” Attached to the Annexation Agreement are two documents, neither of which is marked as Attachment A or Attachment B. One is titled the “Preliminary Plat of Willow Canyon Subdivision” (the Preliminary Plat). The other is titled “Alpine City Annexation Plat” (the Annexation Plat). The Annexation Plat provides a legal description of the territory annexed to Alpine and an outline of the annexed area. The entire Annexation Agreement, together with these two attachments, was recorded in July 1996.

¶ 6 The Preliminary Plat shows five unimproved lots, each labeled “40,000 sq. ft.” The owners of four of these lots have obtained building approval from Alpine. The first, Joel Kester, was allowed to disturb 20,000 square feet of his lot. The second, the Bushmans, were allowed to disturb 30,000 square feet. According to the transcripts of the Planning Commission meeting and the City Council meeting, about the time the Bushmans applied for approval to build, Alpine's Planned Residential Development Ordinance increased the maximum permissible lot size from 40,000 square feet to 60,000 square feet. Although the change was never written into the Annexation Agreement, the Planning Commission seemed to regard the ordinance change as affecting the interpretation of the Annexation Agreement. For example, the Planning Commission Chairman stated that “Bushman's pad was then considered 60,000 and he disturbed 50% equals 30,000 sq ft.”

¶ 7 The Van Leeuwens were the third lot owners to apply for permission to build. They were permitted to disturb 60,000 square feet within their ten-acre parcel. Minutes from the City Council meeting in which the Van Leeuwens' site plan was approved describe this 60,000-square-foot disturbance area not as 150% of a 40,000-square-foot lot, or 100% of a 60,000-square-foot lot, but as “about 14% of the total lot.” ¹

¶ 8 Lynton was the fourth owner of an unimproved lot to apply for permission to build. ² Lynton owns a total of approximately fifteen acres. He petitioned Alpine to allow him to disturb approximately 90,000 square feet. He stated that after construction, he would return 30,000 square feet to its natural state.

¶ 9 The Planning Commission reviewed Lynton's petition. David Church, attorney for Alpine, spoke at the Planning Commission meeting and indicated that the intent of the Annexation Agreement was that a 40,000-square-foot area would be considered a “lot” and that 50% of the lot could be disturbed, with the remainder being preserved through open space conservation easements. No one at the Planning Commission meeting, including Lynton's attorney, contended that the Preliminary Plat was not originally intended to be part of the Annexation Agreement. After extensive discussion, the Planning Commission voted four to three to adhere to the Annexation Agreement's lot size of 40,000 square feet and to limit Lynton to disturbing 20,000 square feet.

¶ 10 The following week, the City Council reviewed Lynton's petition. The City Council discussed the Annexation Agreement at length and considered the allowances given to previous landowners. The City Council, like the Planning Commission, considered the Preliminary Plat to be Attachment B and therefore part of the Annexation Agreement. However, noting that the Van Leeuwens had previously been allowed to disturb 60,000 square feet, the City Council voted six to zero to allow Lynton also to disturb 60,000 square feet of his property.

¶ 11 Having exhausted his administrative remedies, Lynton petitioned the district court for judicial review of the City Council's decision. Lynton and Alpine filed cross-motions for summary judgment. The Willow Canyon Homeowner's Association (the HOA) intervened, asking the district court to enforce applicable restrictive covenants as well as the Annexation Agreement “as drafted.” The HOA interpreted the Annexation Agreement “consistent with the plat map, which shows five 40,000 square foot lots, even though the parcels themselves consist of multiple acres.” Thus, the HOA urged the district court to read the Annexation Agreement as limiting homeowners to disturbing up to 50% of a 40,000-square-foot lot.

¶ 12 The district court granted Alpine's motion for summary judgment and denied Lynton's. The district court concluded that the Preliminary Plat was incorporated into the Annexation Agreement as Attachment B. The text of the Annexation Agreement, it found, “incorporates by reference, and repeatedly and clearly refers to, Attachment B.” The district court recognized that “the [City] Council had evidence that the Annexation Agreement had mistakenly not been enforced in the past,” but ruled that the City Council's decision in Lynton's case was based on substantial evidence and thus was not arbitrary or capricious.

ISSUE AND STANDARD OF REVIEW

¶ 13 On appeal, Lynton contends that the district court erred in granting Alpine's motion for summary judgment and denying his own, thereby upholding the decision of the City Council. He further contends that summary judgment for Alpine was improper because material facts were in dispute, in particular, whether the Preliminary Plat was part of the Annexation Agreement and thus restricted Lynton's use of his property. Alpine responds that the Preliminary Plat was part of the Annexation Agreement, and that whether an issue of material fact exists is irrelevant because, in any event, the district court's review is limited “to the record provided by the land use authority,” see Utah Code Ann. § 10-9a-801(8)(a)(i) (2007).

¶ 14 Summary judgment is appropriate only when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Utah R. Civ. P. 56(c). On appeal, wetypically review the district court's assessment of whether a genuine issue of material fact required a trial. See Cabaness v. Thomas, 2010 UT 23, ¶ 18, 232 P.3d 486. However, when the district court reviews a land use authority's decision, the scope of its review is curtailed by Utah Code section 10-9a-801(8). See Utah Code Ann. § 10-9a-801(8) (2007). Under that provision, unless there is no record, the district court's review is limited to the record before the land use authority and evidence improperly excluded by it:

(8)(a)(i) If there is a record, the district court's review is limited to the record provided by the land use authority or appeal authority, as the case may be.

(ii) The court may not accept or consider any evidence outside the record of the land use authority or appeal authority, as the case may be, unless that evidence was offered to the land use authority or appeal authority, respectively, and the court determines that it was improperly excluded.

(b) If there is no record, the court may call witnesses and take evidence.

Id. § 10-9a-8(a), (b); see also Pacific W. Cmts., Inc. v. Grantsville City, 2009 UT App 291, ¶ 12, 221 P.3d 280, cert. denied, 225 P.3d 880 (Utah 2010). Here, neither party has argued that the exceptions in subsection (8)(a)(ii) or (8)(b) apply. Consequently, subsection (8)(a)(i) limited the district court's review to the record before the City Council. The district court thus lacked...