McElhaney v. City of Moab

• Decision Date: 21 September 2017
• Docket Number: No. 20160142,20160142
• Citation: 423 P.3d 1284
• Parties: Jeramey MCELHANEY and Mary McElhaney, Appellees, v. CITY OF MOAB and Moab City Council, Appellants.
• Court: Utah Supreme Court

423 P.3d 1284

Jeramey MCELHANEY and Mary McElhaney, Appellees,

v.CITY OF MOAB and Moab City Council, Appellants.

No. 20160142

Supreme Court of Utah.

Filed September 21, 2017

Craig C. Halls, Blanding, for appellees.

Christopher G. McAnany, Grand Junction, CO, for appellants.

Justice Pearce authored the opinion of the Court in which Chief Justice Durrant, Associate Chief Justice Lee, Justice Durham and Justice Himonas joined.

On Direct Appeal

Justice Pearce, opinion of the Court:

INTRODUCTION

¶ 1 The Moab City Council (Council) denied Mary and Jeramey McElhaney's application for a conditional use permit to operate a bed and breakfast in their residential neighborhood. The McElhaneys appealed to the district court, which reversed the Council's decision. Moab City (Moab) and the Council seek our review. We first clarify that, contrary to what we have suggested in some cases, we review the district court's decision and not the Council's. We next conclude that the district court correctly recognized that the Council had not generated findings sufficient to support its decision but erred by refusing to send the matter back to the Council for the entry of more detailed findings of fact and conclusions of law. Accordingly, we vacate the district court's decision and remand with instructions to the district court to remand the matter back to the Council.

BACKGROUND

¶ 2 Mary and Jeramey McElhaney (collectively McElhaneys) submitted an application for approval of a conditional use permit for a bed and breakfast facility to be located on their property. The McElhaneys' property is located in an R-2 residential zone. An R-2 zone allows residential dwellings and limited commercial uses. MOAB, UTAH, MUN. CODE § 17.45.020 (2017). The Moab Municipal Code recognizes that a bed and breakfast facility may be allowed, in some circumstances, as a conditional use in an R-2 zone. Id. § 17.09.530(B). The proposed bed and breakfast would be the only commercial property in a cul-de-sac of single-family residences.¹ At the time of their application, the McElhaneys operated a child-care business on the street, which they planned to close once they opened the bed and breakfast.

¶ 3 In September 2014, the Planning Commission (Commission) convened a public hearing to review the application. Several neighbors voiced their concerns at the hearing. Comments primarily addressed issues of traffic, noise, parking, lighting, storm water drainage, and general incompatibility with the neighborhood. The Commission directed city staff to investigate the concerns and report back. The McElhaneys wrote a letter to the Council to address the concerns raised at the public hearing. They indicated that the bed and breakfast would include off-street parking, decrease traffic once they closed the daycare, be constructed in a way that avoided drainage issues, and ultimately increase property values.

¶ 4 The city staff investigated the complaints and the McElhaneys' proposed solutions. For example, the staff examined the concerns about increased traffic. The staff estimated that a bed and breakfast would generate up to 8.9 average daily trips per unit—fewer than a single-family residence's 10 to 12 average daily trips. It also found that the McElhaneys' plan included sufficient off-street parking to meet the Moab Municipal Code's requirement.

¶ 5 The Commission recommended approval of the conditional use permit, subject to the following conditions:

1. The bed and breakfast shall be reviewed each year for code compliance;

2. All lighting shall be downward directed and full cutoff as required by [Moab Municipal Code] 17.09.660(H), Lighting Plan.

3. Fencing and/or landscaping shall be used to buffer the parking area and the entrance from the street....

4. The daycare center will discontinue operations once the bed and breakfast facility is operational.

The Commission found that the McElhaneys could mitigate the negative impact of the bed and breakfast if it abided by these conditions.

¶ 6 The Council, acting as the land use authority, considered the conditional permit application at a public hearing. Citizens again voiced a number of concerns. Increased noise and traffic were the most frequently aired problems. Many expressed unease that the bed and breakfast would attract tourists with loud Jeeps, utility task vehicles (UTVs), and all-terrain vehicles (ATVs). Nearly everyone who spoke at the Council meeting worried that visitors to the bed and breakfast would drive motorcycles or ATVs up and down the hill past their houses multiple times. Many also feared that the increase in traffic would endanger neighborhood children who frequently play in the streets. Several residents also commented that the presence of a commercial property would alter the integrity and dynamic of the neighborhood. A few people complained of potential light pollution, decreased property values, and possible road deterioration.

¶ 7 The Council denied the McElhaneys' application by a 3-1 vote at a Council meeting in November 2014. The Council did not make explicit findings on whether the proposal met the requirements the Moab Municipal Code imposes. However, each councilmember explained the rationale behind his or her vote.

¶ 8 Councilmember Kirstin Peterson voted against the permit. She suggested that the proposed use did not meet the criteria that it be "consistent with the city of Moab general plan." See id. § 17.09.530(H)(7). She noted that, under Moab's general plan, "one of the five goals is to restrict commercial development in residential ... zones," and she believed that approval of the conditional use permit would effectively "force a commercial business on a residential area that clearly is not interested in creating a commercial zone." Considering "the unique characteristics of this neighborhood," Councilmember Peterson said the bed and breakfast is "not an appropriate use."

¶ 9 Councilmember Heila Ershadi also voted against the proposal. She stated that the "number one concern" among locals was "the character of the town." She concluded that because locals worried that "the tourism trade is just taking over and there's less and less space that belongs to locals," she could not support the McElhaneys' proposed use.

¶ 10 Councilmember Kyle Bailey was the third vote against grant of the permit. Bailey reasoned that "the clear intent of [the minimal negative impact requirement] was to listen to the people in the neighborhoods and to do what the neighborhoods wished." He stated that the bed and breakfast "is going to be an impact on the neighborhoods and I can't support this." Councilmembers Peterson, Ershadi, and Bailey did not speak directly to whether the McElhaneys could mitigate the potential adverse impacts or why the conditions the planning commission recommended would be insufficient to ameliorate the bed and breakfast's negative effects.²

¶ 11 Only Councilmember Gregg Stucki voted to approve the McElhaneys' conditional use permit. He spoke from his experience as a bed and breakfast owner. He first explained that the conditional use permit system operated by "rules that are in place and not our own personal preferences or public opinion." He addressed "some incorrect assumptions ... about the type of people that frequent [bed and breakfasts]." He opined that "[b]y and large, [bed and breakfast] guests are well educated, they're successful professionals, they tend to be active, health[-] and environmentally-conscious." Based on this observation, Stucki said that the McElhaneys would not likely "be able to buck the trend and cater primarily or exclusively to ATV and motorcycle enthusiasts." He concluded that bed and breakfasts "have not been, nor are they currently a menace or disruption to the regular flow of neighborhoods that some believe they could be."

¶ 12 The McElhaneys appealed to the district court. At a hearing before the court, the McElhaneys argued that among the public's concerns of "appearance, architecture, scale, design, noise, traffic, [and] parking," the key complaints included "the traffic and the noise." At the hearing, the judge expressed dismay at the Council's failure to articulate the basis for its decision. The district court complained that in the Council's assumed role as fact finder, it didn't "actually find facts." Moab responded that it believed the Council had produced an appropriate order, but that if the court identified "any defect in [the decision] process ... the appropriate remedy ... is to remand for further findings."

¶ 13 The district court overturned the Council's decision. First, it held that speculative evidence "d[id] not support a finding of undue increase in traffic." Because the record did not indicate the number of homes on Arches Drive, the court took judicial notice of a Google map.³ The court also found that concerns about increased noise constituted "mere speculation." It reasoned that any negative noise impact would be effectively mitigated by the McElhaneys' residence at the bed and breakfast and Moab's authority to deny renewal of the annual permit. The district court suggested that the permit might have been denied "because of other negative effects that are not ‘clearly minimal.’ " But it held that "the City has a responsibility to articulate what those negative effects are likely to be" and concluded that Moab had failed to do so. Because the McElhaneys met specified requirements for obtaining a conditional use permit, and since "[t]he only contrary evidence is not substantial, but speculative only, based on the expressed fears of neighbors," the district court overturned the Council's decision to deny the McElhaneys' application.

¶ 14 Moab appeals the district court's decision. We have jurisdiction under Utah Code section 78A-3-102(3)(j).

STANDARD OF REVIEW

¶ 15 We have said that " ‘[w]hen a lower court reviews an order of an administrative agency and we exercise appellate review of the lower court's judgment, we act as if we were reviewing the...