N. Monticello Alliance, LLC v. San Juan Cnty.

• Decision Date: 24 February 2022
• Docket Number: 20200563
• Citation: 506 P.3d 593
• Parties: NORTHERN MONTICELLO ALLIANCE, LLC, Appellee, v. SAN JUAN COUNTY, Appellants.
• Court: Utah Supreme Court

506 P.3d 593

NORTHERN MONTICELLO ALLIANCE, LLC, Appellee,

v.SAN JUAN COUNTY,¹ Appellants.

No. 20200563

Supreme Court of Utah.

Heard September 13, 2021

Filed February 24, 2022

Barton H. Kunz II, Salt Lake City, for appellants San Juan County and San Juan County Commission

Paul W. Shakespear, Elizabeth M. Brereton, Salt Lake City, for appellants Sustainable Power Group, LLC, and Latigo Wind Park, LLC

J. Craig Smith, Jennie B. Garner, Salt Lake City, for appellee Northern Monticello Alliance, LLC

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

On Certiorari to the Utah Court of Appeals

Justice Himonas, opinion of the Court:

INTRODUCTION

¶1 This case involves a curiously complex set of appeals stemming from the San Juan County Planning and Zoning Commission's decision not to revoke a wind farm's conditional use permit (CUP). Northern Monticello Alliance (NMA), a limited liability company comprised of individual landowners whose property is adjacent to the wind farm, contends that it had a right to participate in the revocation hearing, which was denied to it. Our court of appeals agreed, finding that NMA had a due process right to participate in the revocation hearing that corresponded with the right to appeal the decision of the hearing.

¶2 Although we agree with the court of appeals that NMA had a right to appeal the Planning Commission's decision not to revoke the CUP, we disagree that this right to appeal necessarily provides it with the right to participate in the revocation hearing. Neither the Utah Code, the San Juan County Zoning Ordinance (at times, the Zoning Ordinance), nor the conditions in the CUP itself provide NMA with such a right, nor do they create a protected interest in the enforcement of the CUP.

BACKGROUND

I. FACTUAL BACKGROUND

¶3 In 2012, the San Juan County Planning and Zoning Commission issued a CUP to Wasatch Wind Intermountain, LLC, to allow for the construction of a wind farm on undeveloped land in San Juan County.² Three months later, the Planning Commission held a public hearing, at which they amended the previously issued CUP.³ The now-amended CUP required current and future permittees "to incorporate as much flicker, light, sound, mitigation as possible, and to meet all industry standards of those challenges."⁴ Later, Wasatch Wind sold the wind park to Sustainable Power Group, LLC (sPower).

¶4 In August 2015, NMA complained to the Planning Commission that sPower was not fulfilling the conditions of its CUP.⁵ The Planning Commission voted to hold a hearing to consider revoking the CUP. NMA attended this hearing but was not allowed to participate; only sPower was permitted to present evidence. Several days later, the Planning Commission voted not to revoke the CUP.

¶5 Following the Planning Commission's decision not to revoke the CUP, NMA appealed to the San Juan County Commission. The County Commission held a hearing and subsequently issued a written decision reversing the Planning Commission's decision and remanding the matter back to the Planning Commission, indicating that sPower had provided insufficient evidence that it had satisfied the conditions of the CUP. Shortly after this decision, the County Commission received a letter from sPower asking the County Commission to reconsider its decision; sPower did not copy NMA on this letter. The County Commission held a closed meeting to consider the letter, and then issued an amendment to its written decision—this time upholding the Planning Commission's decision not to revoke the CUP.

¶6 NMA appealed the County Commission's amended decision to the district court, which, in turn, remanded the case back to the County Commission because of due process violations. The court concluded that "the County's decision to reconsider its earlier order was illegal because it violated NMA's due process rights" in that it was based on an "ex parte communication" and NMA was neither given notice nor an opportunity to be heard. It remanded the case to the County Commission specifically to give NMA a chance to be heard and respond to sPower's letter requesting reconsideration. On remand, the County Commission heard from both NMA and sPower on this matter. The County Commission subsequently upheld the Planning Commission's decision not to revoke the CUP.

¶7 NMA again appealed the County Commission's decision to the district court. Both parties moved for summary judgment. The district court granted the County's motion for summary judgment, finding that, because the County Commission heard from NMA on sPower's letter and request for reconsideration, the decision was supported by substantial evidence and no longer illegal. NMA then appealed to the court of appeals.

II. THE COURT OF APPEALS’ DECISION

¶8 A majority of the court of appeals panel voted to reverse the district court's grant of summary judgment and to remand the case because it determined that NMA members had due process rights granted by the County Land Use, Development, and Management Act (CLUDMA) and the relevant sections of the San Juan County Zoning Ordinance.⁶ N. Monticello All. LLC v. San Juan Cnty. , 2020 UT App 79, ¶¶ 10–15, 468 P.3d 537. Judge Christiansen Forster concurred in the result, but concluded that the due process rights flowed, instead, from a protectable property interest in San Juan County's enforcement of the mitigation conditions placed upon the CUP. Id. ¶¶ 27–28 (Christiansen Forster, J., concurring).

¶9 The majority opinion rested on provisions of CLUDMA and the Zoning Ordinance that provided NMA the right to appeal and then instructed the appeal authority to "respect the due process rights of" the participants on appeal. See id. ¶ 11 (citing UTAH CODE §§ 17-27a-703(1) ; 17-27a-706(2); SAN JUAN COUNTY , UTAH , ZONING ORDINANCE (SJCZO) §§ 2-2(2)(f); 6-4; 6-7 (2011)). The court held that since NMA had due process rights on appeal, it necessarily was afforded those rights throughout the entirety of the proceeding:

Indeed, the appeal authority is required to ‘respect the due process rights’ of adversely affected parties, and it cannot uphold those rights if the party was denied due process in the pivotal initial stages of the proceeding. Otherwise, the appeal authority will be reviewing a proceeding in which the adversely affected party was unable to present evidence or be properly heard—a meaningless exercise.

Id. ¶ 13 (citation omitted). The court continued by saying that if there were no right to participate below, "any adversely affected or aggrieved party could be muzzled at an initial hearing and barred from presenting evidence to counter its opponent's evidence, and then the appeal authority would be essentially powerless to overturn the initial decision because there would be no contrary evidence in the record." Id.

¶10 The court of appeals also noted that the statutory scheme, "when considered in conjunction with the county zoning ordinance ... clearly provide[d] protections to adjacent property owners who are harmed by a CUP from the beginning," which bolstered the court's conclusion that NMA had a due process right to present evidence. Id. ¶ 14. "[A] scheme designed to protect and mitigate injury to adversely affected or aggrieved adjacent landowners, but does not give them the ability to properly present their evidence, is no protection at all." Id.

¶11 The court of appeals ultimately held that NMA was denied due process when it was prevented from presenting evidence at the revocation hearing and instructed the district court "to remand the case to the County Commission for it to take evidence from NMA as previously mandated or, if it is not in a position to itself receive the evidence, to in turn remand to the Planning Commission so that it can do so." Id. ¶ 19.

¶12 Judge Christiansen Forster concurred in the decision but on different grounds. While she agreed with the majority that NMA had a due process right to be heard and participate in the Planning Commission's revocation hearing, she did not agree that CLUDMA and the Zoning Ordinance gave rise to that right. Instead, she based this right on the fact that the "CUP imposed mitigation conditions on sPower for the protection of NMA members’ property as a condition of approval," which gave NMA "a legitimate claim of entitlement in the enforcement of" the mitigation required by the CUP. Id. ¶ 27 (Christiansen Forster, J., concurring) (footnote omitted). In Judge Christiansen Forster's view, then, NMA had a protected property interest in the county's enforcement of the mitigation required by the CUP, which ultimately gave NMA "the right to be heard and present evidence at the revocation hearing." Id. ¶ 28. But in her view, that right arose from the Planning Commission's specific approval of the CUP, with the mitigation requirements, rather than from the statute and Zoning Ordinance more generally. Id. ¶ 28.

¶13 We granted San Juan County and sPower's joint petition for certiorari on the question of "[w]hether the majority of the panel of the Court of Appeals erred in concluding that [NMA] had a right to present evidence to the San Juan County Planning Commission that corresponded to a right to appeal that Commission's decision."⁷

III. THE PARTIES’ ARGUMENTS

¶14 In their briefs before this court, the County and sPower argue three alternative points for why the court of appeals’ decision should be reversed. First, they argue that the County Commission's acceptance of evidence from NMA on appeal "cured" any due process error that occurred when the Planning Commission refused to take evidence from anyone other than sPower. Alternatively, they argue that NMA lacked a constitutional due process right to present evidence in the revocation hearing because (1) a purely procedural right to administrative review does not create a due process right and (2) a due process right cannot attach to an enforcement action that is left to a...