Northern Monticello Alliance LLC v. San Juan County, 052120 UTCA, 20180225-CA

Docket Nº:20180225-CA
Opinion Judge:ORME, JUDGE
Party Name:Northern Monticello Alliance LLC, Appellant, v. San Juan County, San Juan County Commission, Sustainable Power Group LLC, and Latigo Wind Park LLC, Appellees.
Attorney:J. Craig Smith, Jennie B. Garner, and Jay L. Springer Attorneys for Appellant Barton H. Kunz II, Paul W. Shakespear, and Elizabeth M. Brereton, Attorneys for Appellees
Judge Panel:JUDGE GREGORY K. ORME authored this Opinion, in which JUDGE DAVID N. MORTENSEN concurred. JUDGE MICHELE M. CHRISTIANSEN FORSTER concurred in the result, with opinion. CHRISTIANSEN FORSTER, Judge (concurring in result):
Case Date:May 21, 2020
Court:Court of Appeals of Utah

2020 UT App 79

Northern Monticello Alliance LLC, Appellant,


San Juan County, San Juan County Commission, Sustainable Power Group LLC, and Latigo Wind Park LLC, Appellees.

No. 20180225-CA

Court of Appeals of Utah

May 21, 2020

Seventh District Court, Monticello Department The Honorable Lyle R. Anderson No. 170700006

J. Craig Smith, Jennie B. Garner, and Jay L. Springer Attorneys for Appellant

Barton H. Kunz II, Paul W. Shakespear, and Elizabeth M. Brereton, Attorneys for Appellees

JUDGE GREGORY K. ORME authored this Opinion, in which JUDGE DAVID N. MORTENSEN concurred. JUDGE MICHELE M. CHRISTIANSEN FORSTER concurred in the result, with opinion.


¶1 Northern Monticello Alliance, LLC (NMA) appeals the district court's grant of summary judgment in favor of Appellees. The court ruled that the San Juan County Commission properly remedied NMA's due process deprivation by allowing NMA to be heard even though it had no opportunity to present its own evidence. We reverse.


¶2 In 2012, 2 the San Juan County Planning and Zoning Commission (the Planning Commission) issued a conditional use permit (CUP) to Wasatch Wind Intermountain, LLC (Wasatch Wind) allowing for the construction of a wind farm in San Juan County.3 Owners of undeveloped land near the wind farm, who formed NMA, were not at the hearing when the Planning Commission granted the CUP. At a later hearing to consider amending the CUP, NMA opposed the CUP but withdrew its opposition after entering into a land purchase option agreement with Wasatch Wind. The Planning Commission issued an amended CUP to Wasatch Wind, after which Sustainable Power Group, LLC (sPower) acquired the wind farm.[4]

¶3 After receiving complaints that sPower was not complying with the amended CUP, the Planning Commission held a hearing, following which it decided against revoking the amended CUP. At this hearing, the Planning Commission did not allow NMA to submit evidence or participate in any meaningful way.

¶4 NMA appealed the Planning Commission's decision to the County Commission, which sat as the land use appeal authority. See Utah Code Ann. § 17-27a-701(1) (LexisNexis 2017);5 San Juan County Zoning Ordinance § 2-2(1) (2011). The County Commission initially reversed the Planning Commission, concluding that the Planning Commission did not rely on sufficient evidence in its decision. The County Commission remanded the case and "instruct[ed] the [Planning] Commission to allow NMA to be heard." After this decision to remand, sPower sent an ex parte letter to the County Commission asking it to reconsider its decision, claiming that the County Commission's decision would "result in damages to sPower in excess of $100 million." The letter stated that sPower, "frankly, considers" the action of the County Commission "to be arbitrary and capricious" and "requests that the County [Commission] agree to reconsider [its] [o]rder, and issue an amended order, no later than" the end of business in just four days. The County Commission reconsidered its order, reversed itself, and upheld the Planning Commission's decision-all without hearing argument or taking evidence from NMA.

¶5 NMA sought judicial review in the district court. See Utah Code Ann. § 17-27a-801(2) (LexisNexis Supp. 2019); San Juan County Zoning Ordinance § 6-7 (2011). After hearing argument, the court remanded the case to the County Commission. It ruled, with our emphasis, that because "NMA did not have the same opportunity [as sPower] to argue its side of the case with regard to [sPower's] evidence or to present its own evidence," the County Commission's ruling did not "comply with basic due process" and thus was not "valid."

¶6 On remand, the County Commission allowed NMA to brief the issues and to participate in oral argument, but contrary to the district court's specific reference to the "opportunity . . . to present its own evidence," NMA was again forbidden from presenting "any additional evidence not already in the record" because the County Commission claimed that "the purpose of [the] rehearing was solely to consider sPower's request for reconsideration." The County Commission again upheld the Planning Commission's decision not to revoke the amended CUP.

¶7 NMA returned to the district court, seeking review of the latest County Commission decision. After receiving motions for summary judgment from both sides, the district court denied NMA's motion and granted Appellees' motion. In its ruling, the court stated that it expected that on remand the county commission would remedy its denial of due process to NMA by giving it a chance to respond to sPower's . . . letter . . . and to evaluate those arguments and consider any evidence in the record that NMA would want to call to the county commission's attention in evaluating whether it should have reconsidered its decision. (The Court did not mean for the county commission to take evidence if it hadn't taken evidence in the first place.) The Court hasn't read anything in the memoranda or heard anything at argument that persuades it that the county commission didn't do what the Court expected it to do.

¶8 NMA now appeals the district court's ruling.


¶9 NMA argues that the district court erred in granting summary judgment to Appellees, thereby upholding the County Commission's decision, and that the court should have remanded the case "to conduct a plenary evidentiary hearing with instructions to allow NMA to participate and submit evidence on why the amended CUP should be revoked, as required by the Due Process Clause of the United States and Utah Constitutions." "We review a district court's decision to grant summary judgment for correctness, granting no deference to the district court's conclusions." Gillmor v. Summit County, 2010 UT 69, ¶ 16, 246 P.3d 102 (quotation simplified).


¶10 First, we must address whether NMA even had due process rights in the course of these proceedings. Appellees argue, quoting Petersen v. Riverton City, 2010 UT 58, 243 P.3d 1261, that "to state a cognizable substantive or procedural due process claim, a party must first allege sufficient facts to show a property or liberty interest warranting due process protection," id. ¶ 21 (quotation simplified), and that "there is no property right in the enforcement of zoning laws against others that would give rise to the due process right NMA claims." While this precept may generally be true-which we do not decide in this case-Appellees overlook that NMA's members had due process rights granted by statute and local ordinance in this situation.

¶11 The Legislature has instructed that "any person adversely affected by the land use authority's decision administering or interpreting a land use ordinance may . . . appeal that decision," Utah Code Ann. § 17-27a-703(1) (LexisNexis 2017), and the "appeal authority shall respect the due process rights of each of the participants," id. § 17-27a-706(2). The applicable county ordinance states that in issuing CUPs, the Planning Commission must impose "requirements and conditions as are necessary for the protection of adjacent properties and the public welfare." San Juan County Zoning Ordinance § 6-4 (2011) (emphasis added). And the Planning Commission cannot issue a CUP unless "evidence [is] presented . . . to establish" that the use of the land "will not . . . be . . . injurious to property or improvements in the vicinity." Id. The ordinance then provides that "[a]ny person aggrieved by a decision of the Planning Commission . . . regarding the issuance, denial or revocation or amendment of a [CUP] may appeal such decision to the [County Commission]," id. § 6-7, which "shall respect the due process rights of all participants," id. § 2-2(2)(f).

¶12 NMA has shown that its members are adversely affected or aggrieved because (1) the wind farm was built next to their properties, significantly affecting their use and enjoyment thereof; (2) the wind farm adversely affects their properties' value; and (3) this injury could be remedied by their requested relief, i.e., revocation of the amended CUP. See Morra v. Grand County, 2010 UT 21, ¶ 15, 230 P.3d 1022 (holding that a "person adversely affected by a land use authority's decision" is one that has "(1) adequately alleged a personal injury resulting from a land use decision, (2) adequately alleged a causal relationship between the decision and the alleged injury, and (3) requested relief that is substantially likely to redress the alleged injury"). Appellees concede that NMA is an adversely affected party because NMA was "entitle[d] to appeal the [P]lanning [C]ommission's decision not to revoke sPower's permit to the [C]ounty [C]ommission." But Appellees attempt to splice the proceedings into two distinct segments, claiming that while NMA may have "had a due process right to be heard on sPower's reconsideration request" before the County Commission, it did not have "a due process right to be heard at sPower's revocation hearing." We are unpersuaded.

¶13 We fail to see how an adjacent landowner with the right to appeal a land use decision and be afforded due process rights by the appeal authority would not also necessarily be afforded due process rights throughout the entirety of the proceeding. Indeed, the appeal authority is required to "respect the due process rights" of adversely affected parties, Utah Code Ann. § 17-27a-706(2), 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. Any...

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