Nelson v. Salt Lake County, 940617

• Citation: 905 P.2d 872
• Decision Date: 06 November 1995
• Docket Number: No. 940617,940617
• Parties: A. Tom NELSON and Trish Topham, Plaintiffs and Appellees, v. SALT LAKE COUNTY, Defendant and Appellant.
• Court: Supreme Court of Utah

Page 872

905 P.2d 872

A. Tom NELSON and Trish Topham, Plaintiffs and Appellees, v. SALT LAKE COUNTY, Defendant and Appellant.

No. 940617.

Supreme Court of Utah.

Nov. 6, 1995.

Kent B. Linebaugh, Jeffrey Devashrayee, Salt Lake City, for plaintiffs.

Gavin J. Anderson, Douglas R. Short, Salt Lake City, for defendant.

RUSSON, Justice:

Salt Lake County appeals from the trial court's order granting A. Tom Nelson and Trish Topham's petition for an extraordinary writ directing Salt Lake County to conduct a municipal incorporation election. We reverse and remand.

FACTS

In the early part of 1993, residents of an unincorporated area of Salt Lake County known as Cottonwood began circulating petitions to incorporate "The Cottonwoods" as a city. The proposed city is located in the east-central portion of Salt Lake County and includes Cottonwood Mall.

In March 1994, the Salt Lake County Clerk received the petition and verified that it had a sufficient number of signatures to begin the municipal incorporation process. See Utah Code Ann. § 10-2-101. ¹ Accordingly, the Clerk certified the petition to the Salt Lake County Board of Commissioners (the Board), which commissioned an independent Subsequently, the Board independently considered a number of factors regarding the advisability and feasibility of the proposed incorporation pursuant to section 10-2-102.6 of the Utah Code. This section provides that the Board, in making its determination, is required to consider numerous factors, including population, topography, extent of business and commercial development, past and projected future growth of the area, present and projected revenues for the county and the proposed municipality, present cost and adequacy of governmental services in the proposed area, and probable effect of incorporation on local government. Id. § 10-2-102.6.

                study of the feasibility and advisability of incorporating the proposed city.  See id. § 10-2-102.2 (1992). 2  In July 1994, the study was completed, affirming the feasibility of incorporation
                

In this case, the Board found the determinative factors to be (1) the extent of business, industrial, and commercial development; (2) the present and projected revenues for the county and the proposed municipality; (3) the present cost and adequacy of governmental services in the proposed area; and (4) the probable effect of incorporation on local government. The Board determined that including Cottonwood Mall in the proposed incorporation area would create surplus revenues far in excess of the financial needs of the proposed city and, without including a substantially larger population base, would disproportionately and inequitably impact unincorporated area revenues and services. For example, the Board found that incorporation of the proposed area, including Cottonwood Mall, would result in the transfer of a disproportionate amount of sales tax revenue from the residents of the unincorporated area to the residents of The Cottonwoods. The Board found that if this incorporation was successful, the sales tax revenue for residents of The Cottonwoods would be approximately $129 per resident per annum, whereas the sales tax revenue for residents of the unincorporated area would be only $26 per resident per annum. Moreover, the Board found that this incorporation would create a precedent for future incorporation to take a disproportionate amount of commercial and business tax base without an equivalent amount of residential property. In short, the Board found that without increasing the residential or population base or eliminating Cottonwood Mall from the proposed city, "the proposed incorporation would be substantially detrimental to the structure of local government in Salt Lake County and otherwise contrary to the public interest." ³

In September 1994, on the basis of its findings, the Board issued a written order refusing to conduct an election on the proposed incorporation and thereby terminated the incorporation proceedings. In taking this action, the Board relied on language in section 10-2-102.8(2) which states that if the Board determines "that the incorporation proposed would be substantially detrimental to the structure of local government in the county or be otherwise contrary to the public interest ... the board of county commissioners shall issue a written order refusing to hold an election.... If such an order is issued, the incorporation proceedings are terminated...." Id. § 10-2-102.8(2) (1992).

Following the issuance of the Board's order, A. Tom Nelson and Trish Topham ("petitioners"), two of the petition's signers, demanded that the Board proceed with the incorporation election. In making their demand, they relied on additional language from section 10-2-102.8(2) which states that "the [Board] must proceed with the election unless a majority of the petitioners withdraw their signatures in writing." Because the Board had failed to determine whether a In October 1994, petitioners filed a summons and petition for extraordinary writ in district court, requesting that the court order the Board to proceed with the incorporation election. Salt Lake County responded by filing a motion to dismiss, but before the hearing on its motion was held, the County moved for summary judgment, alleging that section 10-2-102.8(2) is internally inconsistent and needs clarification. The district court denied both of the County's motions.

majority of the original petitioners had withdrawn their support, petitioners demanded that the Board hold the election. The Board, however, maintained that its interpretation of section 10-2-102.8(2) controlled, and thus, it steadfastly refused to proceed with the election.

In December 1994, the district court issued its final order granting petitioners' extraordinary writ. In its order, the district court stated, "There is no internal inconsistency in the [Utah Municipal Code]" and "the language of the Utah Code Ann. § 10-2-102.8(2) is plain and unambiguous in providing that an Incorporation Election must be held...." Moreover, the district court found that section 10-2-102.8(2) requires that an incorporation election "be held regardless of any determination on the merits of incorporation by the [Board] to the contrary, unless a majority of the petitioners withdrew their signatures in writing." Accordingly, the district court ordered that the Board hold an incorporation election on The Cottonwoods on or before January 7, 1995. Salt Lake County appeals, claiming that the trial court erred in (1) determining that section 10-2-102.8(2) is not internally inconsistent and (2) granting petitioners' extraordinary writ.

ANALYSIS

When reviewing the grant of a petition for an extraordinary writ, the standard of review depends upon the issues presented on appeal. Because this appeal turns on the proper construction of section 10-2-102.8 of the Utah Code, it presents solely a question of law, State v. 392 South 600 East, 886 P.2d 534, 537 (Utah 1994), which we review for correctness, granting no particular deference to the trial court's ruling. World Peace Movement v. Newspaper Agency Corp., 879 P.2d 253, 259 (Utah 1994); accord State v. Wilcox, 808 P.2d 1028, 1031 (Utah 1991); Ward v. Richfield City, 798 P.2d 757, 759 (Utah 1990).

In interpreting section 10-2-102.8(2) of the Utah Code, this court is guided by the principle that a statute is generally construed according to its plain language. 392 South 600 East, 886 P.2d at 537; Schurtz v. BMW of N. Am., Inc., 814 P.2d 1108, 1112 (Utah 1991); Brinkerhoff v. Forsyth, 779 P.2d 685, 686 (Utah 1989). We presume that the legislature used each word advisedly and give effect to each term according to its ordinary and accepted meaning. Versluis v. Guaranty Nat'l Co., 842 P.2d 865, 867 (Utah 1992). " 'We must be guided by the law as it is.... When language is clear and unambiguous, it must be held to mean what it expresses, and no room is left for construction.' " Salt Lake Child & Family Therapy Clinic, Inc. v. Frederick, 890 P.2d 1017, 1020 (Utah 1995) (quoting Hanchett v. Burbidge, 59 Utah 127, 135, 202 P. 377, 380 (1921)). "Only when we find ambiguity in the statute's plain language need we seek guidance from the legislative history and relevant policy considerations." World Peace, 879 P.2d at 259; see also Schurtz, 814 P.2d at 1112 ("We first look to the statute's plain language. Only if we find some ambiguity need we look further.").

At issue in the present case is the meaning of section 10-2-102.8(2), which provides:

If it is determined that the proposal for municipal incorporation is not feasible, that the incorporation proposed would be substantially detrimental to the structure of local government in the county or be otherwise contrary to the public interest, or that withdrawal of support from a majority of the petitioners for incorporation is presented in writing, the board of county commissioners shall issue a written order refusing to hold an election. The order shall be...