Mount Olivet Cemetery Ass'n v. Salt Lake City

• Decision Date: 15 December 1998
• Docket Number: No. 97-4078,97-4078
• Citation: 164 F.3d 480
• Parties: 98 CJ C.A.R. 6449 MOUNT OLIVET CEMETERY ASSOCIATION, a Utah non-profit corporation; Johnson Land Enterprises, LLC, a Utah limited liability company, Plaintiffs-Appellants, v. SALT LAKE CITY, a Utah municipality, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 480

164 F.3d 480

98 CJ C.A.R. 6449

MOUNT OLIVET CEMETERY ASSOCIATION, a Utah non-profit

corporation; Johnson Land Enterprises, LLC, a Utah limited liability company, Plaintiffs-Appellants, v. SALT LAKE CITY, a Utah municipality, Defendant-Appellee.

No. 97-4078.

United States Court of Appeals,

Tenth Circuit.

Dec. 15, 1998.

Jay D. Gurmankin (Daniel L. Berman, Peggy A. Tomsic, and Daniel S. Day with him on the brief), of Berman, Gaufin, Tomsic & Savage, Salt Lake City, Utah, for appellants.

Steven W. Allred, Chief Deputy City Attorney, Salt Lake City, Utah, for appellee.

Before BRORBY, McWILLIAMS, and BRISCOE, Circuit Judges.

BRISCOE, Circuit Judge.

Plaintiffs Mount Olivet Cemetery Association and Johnson Land Enterprises appeal the district court's entry of summary judgment in favor of defendant Salt Lake City in plaintiffs' action seeking declaratory judgment and injunctive relief. Plaintiffs contend the district court erred in finding the Association was the owner of the Mount Olivet Cemetery property, and, as applied to the Association, the City's local zoning ordinance was not preempted by federal law. We affirm.

In 1874, Congress authorized the Secretary of War to set aside twenty acres of land at Camp Douglas in Salt Lake City, Utah, for use as a public cemetery, and directed the Secretary to establish rules and regulations "for the protection, care, and management of such cemetery." See Act of May 16, 1874, ch. 180, 18 Stat. 46-47 (1875). On January 22, 1877, the Secretary designated the cemetery land and promulgated regulations governing its use. The regulations vested management of the cemetery in a board of directors and authorized the board to adopt rules not inconsistent with the regulations. All revenues generated by the sale of burial plots were to be retained by the cemetery and no funds were to "be diverted or devoted to any other use or purpose whatever." Appellant's App. at 106. The board had "no power to create any debt, liability or obligation for the payment of money which shall be binding on this [War] Department or upon the United States," and it was not "to incur any liability greater than it [had] the present means of defraying." Id. The regulations appear to be in effect today.

Congress did not act again with respect to the cemetery until 1909 when it directed the Secretary to convey the cemetery land to Mount Olivet Cemetery Association in exchange for land to be conveyed to the government. See Act of January 23, 1909, chap. 37, 35 Stat. 589 (1909). The 1909 Act provided in part:

[T]he Secretary of War, for and on behalf of the United States, is hereby authorized and directed to grant and convey by deed to the Mount Olivet Cemetery Association, of Salt Lake City, Utah, the [cemetery] land.... Said land to be by the said Mount Olivet Cemetery Association permanently used as a cemetery for the burial of the dead: Provided, That when it shall cease to be used for such purpose it shall revert to the United States.

Id. In 1914, and again in 1952, Congress explicitly allowed use of the land for specific non-cemetery purposes. In 1914, Congress granted the Emigration Canon Railroad Company a right-of-way over the cemetery land "so far as the United States is concerned." Act of February 3, 1914, chap. 14, 38 Stat. 279 (1914). In 1952, Congress "authorized" the Association to grant and convey a small portion of the cemetery land to the City of Salt Lake for expansion of Sunnyside Avenue, which bordered the cemetery. Act of April 3, 1952, chap. 130, 66 Stat. 36 (1952). In the 1952 Act, Congress waived the "reversionary clause set forth in the Act of January 23, 1909," provided that the City use the land for "street or highway purposes," and declared that the 1952 Act "shall not alter or affect Mount Olivet Cemetery Association's ownership of, or its rights and privileges with respect to, the remainder of the lands heretofore granted to it by the United States." Id.

The Association incorporated as a non-profit corporation under Utah law in 1985. In the late 1980's and early 1990's, the Association incurred substantial operating deficits that affected its ability to properly maintain the cemetery. The Association urged Utah congressional leaders to introduce legislation allowing non-cemetery use of property not currently needed for burial purposes. In 1992, Congress authorized such use.

Notwithstanding the Act of January 23, 1909 (chapter 37, 35 Stat. 589), the Secretary of the Interior shall execute such instruments as may be necessary to allow the Mount Olivet Cemetery Association of Salt Lake City, Utah, to lease for use other than as a cemetery, for a period of not more than 70 years, any portion of the land described in the first section of that Act, excluding the tract of land granted to Salt Lake City, Utah, pursuant to the Act of April 3, 1952 (66 Stat. 36), so long as such additional use will not prevent future use for cemetery purposes.

Publ. L. No. 102-347, 106 Stat. 930 (1992).

In December 1993, the Association leased fifteen acres of the property to the Salt Lake City Board of Education for use as a football stadium. In February 1994, it leased a portion of the property to Careage, Inc., for construction of a skilled nursing facility. The City objected to this use, claiming "open space or recreation is the only allowable use with consideration of all the restrictions on the property." Appellant's App. at 97. Careage declined to develop the property because of the opposition.

In April 1995, new City zoning restrictions became effective and the Association's property was designated as "open space." "The purpose of [open space zoning] is to preserve and protect areas of public and private open space and exert a greater level of control over any potential redevelopment of existing open space areas." Appellant's App. at 172. Property designated "open space" can be used for cemeteries, community recreation centers, country clubs, golf courses, nature preserves, public parks, private recreational facilities, and zoos. See id. at 175-76. An "open space" designation prohibits use for residential or office use, including adult day care centers, congregate care facilities, and medical offices.

In December 1995, the Association leased twenty acres to Johnson Land Enterprises for construction of a retirement living center and skilled nursing facility. The lease required Johnson to "restore the Leased Premises to a condition suitable for the use by the Lessor as a cemetery for burial of the dead" upon termination of the lease. Id. at 28. Johnson was also obligated under the lease to reimburse the Association for any attorney fees incurred in challenging the zoning classification. The Association submitted the lease to the Secretary of the Interior for a determination of whether the proposed use would prevent future use of the property for cemetery purposes. The Bureau of Land Management approved the lease in early 1996, declaring the proposed use consistent with provisions of the 1992 Act. ¹

Plaintiffs initiated this declaratory and injunctive relief action on March 4, 1996, contending the property was federally-owned and governed by federal regulations. Plaintiff sought a declaration that (1) the City exceeded its authority under Utah Code Ann. § 10-9-105 by attempting to regulate federal property; and (2) the City's zoning ordinances, as applied to the Association, were preempted by federal law and thus unconstitutional under the Supremacy Clause. The City argued the Association owned the property and that the zoning ordinance was consistent with Utah law and any applicable federal regulation. In granting summary judgment in favor of the City, the court held the Association owned the property by virtue of the 1909 Act deeding the property to the Association, and at best the United States held a possibility of reverter. The court rejected plaintiffs' preemption arguments, noting there was "no federal scheme controlling the Mount Olivet property and no dominant federal interest." Appellant's App. at 761.

Standard of Review

We review a grant of summary judgment de novo, applying the same legal standard used by the district court. Sundance Assocs., Inc. v. Reno, 139 F.3d 804, 807 (10th Cir.1998). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, we examine the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment. Sundance, 139 F.3d at 807.

Ownership under Utah Code Ann. § 10-9-105

Initially, we must determine, for purposes of Utah Code Ann. § 10-9-105, who owns the property. "Unless otherwise provided by law, nothing contained in ... this chapter may be construed as giving the planning commission or the legislative body jurisdiction over properties owned by the state of Utah or the United States government." Utah Code Ann. § 10-9-105. Thus, if the property is owned by the federal government, the City lacked authority to enforce its zoning designation of that property. Plaintiffs contend the government's future interest, coupled with its purportedly extensive regulation of the property, are sufficient to bring the property within the definition of "property owned by the United States." The district court's interpretation of § 10-9-105 is subject to de novo review. See F.D.I.C. v. Canfield, 967 F.2d 443, 445 (10th Cir.1992).

Congress unambiguously conveyed ownership of the land to the Association through the 1909 Act and the subsequently issued deed. The deed "grants and conveys" the cemetery land to the Association until the land is no longer used as a cemetery, at which point it reverts to the government. Under well-settled...