Patterson v. Utah County Bd. of Adjustment, 940014-CA

CourtCourt of Appeals of Utah
Citation893 P.2d 602
Docket NumberNo. 940014-CA,940014-CA
PartiesLarry PATTERSON, Plaintiff and Appellee, v. UTAH COUNTY BOARD OF ADJUSTMENT, Glenn B. Smith, Marianne M. Smith, W. Greg Buttars, and Leslie E. Buttars, Defendants and Appellants.
Decision Date29 March 1995

Page 602

893 P.2d 602
Larry PATTERSON, Plaintiff and Appellee,
Smith, W. Greg Buttars, and Leslie E. Buttars,
Defendants and Appellants.
No. 940014-CA.
Court of Appeals of Utah.
March 29, 1995.

Gary H. Weight, Provo, for appellants.

George E. Brown, Jr., and Karen M. Patterson, American Fork, for appellee.

Page 603

Before GARFF 1, ORME, and WILKINS, JJ.


Glenn and Marianne Smith and Greg and Leslie Buttars appeal from a decision of the district court finding that the Utah County Board of Adjustment (the Board) acted arbitrarily, capriciously, and illegally in approving the appellants' application for a special exception under the county's zoning ordinance. We reverse the district court's decision.


In February 1991, the Smiths and the Buttars filed an appeal with the Board, requesting a special exception to build and operate a private airstrip in Cedar Valley, Utah County. The two couples were purchasing approximately 180 acres in Cedar Valley where they proposed to build two residences and the airstrip. Mr. Smith is a pilot, and the couples planned to use the airstrip for their private use.

On March 5, 1991, the Board held a public hearing to discuss and decide the matter. Actual notice of the hearing, dated February 21, had been sent to five adjoining property owners. After reviewing the application for the special exception, the report from the zoning administrator's staff, and other documents, and after receiving testimony from Buck Rose, the County Planner, as well as from Mr. and Mrs. Smith, and Mr. Buttars, the Board approved the request for a special exception.

Larry Patterson owns and operates the Cedar Valley Airport, a private airport used for commercial purposes and located within a few miles of the proposed airstrip. Mr. Patterson, who was not present at the hearing, objected to the Board approving the airstrip so close to his airport and filed a complaint in the district court on April 3, 1991.

On April 22, 1993, the district court, acting pursuant to jurisdiction conferred under Utah Code Ann. § 17-27-708 (1991), filed a Memorandum Decision, finding the Board's decision to be arbitrary, capricious, and illegal. The Smiths and the Buttars appeal from the district court's decision.


Since the district court's review of the Board's decision was limited to a review of the Board's record, we do not accord any particular deference to the district court's decision. 2 Instead, we review the Board's decision as if the appeal had come directly from the agency. 3 Thus, the standard for our review of the Board's decision is the same standard established in the Utah Code for the district court's review.

Section 17-27-708 of the Utah Code provides that "[a]ny person adversely affected by any decision of a board of adjustment may petition the district court for a review of the decision." Utah Code Ann. § 17-27-708(1) (1991). However, "[i]n the petition, the plaintiff may only allege that the board of adjustment's decision was arbitrary, capricious, or illegal." Id. § 17-27-708(2).

Thus, the Board's actions are accorded substantial deference and will be rejected on appeal only if they are so unreasonable as to be arbitrary and capricious or if they violate the law. The reason for this lies in the substantial discretion granted boards of adjustment. The boards have been established "[i]n order to provide for just and fair treatment in the administration of local zoning ordinances, and to ensure that substantial justice is done." Id. § 17-27-701 (Supp.1994). More specifically, and when authorized to do so, "[t]he board of adjustment

Page 604

may hear and decide special exceptions ... based ... on the standards contained in the zoning ordinance." Id. § 17-27-706(2) (1991). "Within the boundaries established by such standards, however, the [board] is afforded broad latitude of discretion, and its decisions are afforded a strong presumption of validity." Thurston v. Cache County, 626 P.2d 440, 445 (Utah 1981). 4

Accordingly, we will not substitute our judgment on matters of public policy normally left to the Board's discretion; 5 we will simply ensure that the Board proceeds within the limits of fairness and justice and acts in good faith to achieve permissible ends.

The Board will be found to have exercised its discretion within the proper boundaries unless its decision is arbitrary, capricious, or illegal. Further, "[t]he court shall affirm the decision of the board ... if the decision is supported by substantial evidence in the record." Utah Code Ann. § 17-27-708(6) (1991). Together, these concepts mean that the Board's decision can only be considered arbitrary or capricious if not supported by substantial evidence. 6

In determining whether substantial evidence supports the Board's decision we will consider all the evidence in the record, both favorable and contrary to the Board's decision. See First Nat'l Bank of Boston v. County Board of Equalization of Salt Lake County, 799 P.2d 1163, 1165 (Utah 1990); Grace Drilling Co. v. Board of Review, 776 P.2d 63, 68 (Utah App.1989). Nevertheless, our review, like the district court's review, "is limited to the record provided by the board of adjustment.... The court may not accept or consider any evidence outside the board['s] record...." Utah Code Ann. § 17-27-708(5)(a) (1991). We must simply determine, in light of the evidence before the Board, whether a reasonable mind could reach the same conclusion as the Board. It is not our prerogative to weigh the evidence anew. See Xanthos, 685 P.2d at 1035. 7

On the other hand, whether or not the Board's decision is illegal depends on a proper interpretation and application of the law. These are matters for our determination, and we accord no deference to the district court or the Board.


Mr. Patterson has alleged that the Board's decision to allow construction and operation of the proposed airstrip is arbitrary, capricious, and illegal. As a basis for his petition, Mr. Patterson challenges several required findings of the Board as being arbitrary and

Page 605

capricious. Indeed, for the Board's overall decision to be supported by substantial evidence, each required finding must be supported by substantial evidence. In the present case, § 7-21-C of the county's zoning ordinance requires that:

The following standards shall be met as a prerequisite to approving any special exception.

1. It shall promote the public health, safety, and welfare.

2. It shall conform to the "characteristics and purposes" stated for the zoning district involved and the adopted county master plan.

3. It shall be compatible with the public interest and with the characteristics of the surrounding area.

4. It shall not adversely affect local property values.

Utah County Zoning Ordinance § 7-21-C. 8 Although an applicant must meet other standards and requirements before the Board can approve a special exception, Mr. Patterson only specifically challenges the Board's findings regarding these four standards.

However, Mr. Patterson has failed to adequately marshal the evidence in the record supporting each finding, merely supplying the court with selected supporting facts and attempting to rebut those facts with evidence not in the record nor before the Board. 9 Accordingly, we will not address Mr. Patterson's claims with respect to the last three required standards mentioned. However, we will address Mr. Patterson's claim regarding the first required standard, that the proposed special exception must "promote the public health, safety, and welfare." We reach this issue because, despite the lack of marshaling, Mr. Patterson alleges that the conditions created by the Board's decision result in an "inherently unsafe condition" which essentially makes impossible, as a matter of law, any finding that this first standard could be met.

In addition, Mr. Patterson also charges that construction and operation of the airstrip as approved expressly violates § 3-34 of the Utah County Zoning Ordinance, making the Board's decision illegal. We address the challenged finding first and then the charge of illegality.

I. Alleged Arbitrariness of the Board's Finding

Section 7-21-C(1) of the Utah County Zoning Ordinance requires as a condition to a proposed special exception's approval that it "promote the public health, safety and welfare." Mr. Patterson challenges the Board's finding that this standard is met by substantial evidence. Indeed, the district court concluded that the Board "acted arbitrarily in finding that the proposed airstrip would promote public health, safety, and welfare." We will only address this claim to the extent that Mr. Patterson has asserted throughout the proceedings, and the district court agreed, that the location of the proposed airstrip so close to the Cedar Valley Airport presents an "inherently unsafe situation."

We must first understand what the ordinance requires. In other words, we must determine what it means to "promote public health, safety, and welfare" before we can determine whether substantial evidence in the record supports the Board's finding. The word "promote" means "[t]o contribute to growth, enlargement, or prosperity of; to forward; to further; to encourage; to advance." Black's Law Dictionary 1214 (6th ed. 1990). From this list of acceptable definitions, we can see that "promote" implies varying degrees of proactivity. When the phrase is read as a whole, promoting the public health, safety, and welfare can reasonably be understood to encompass a spectrum from "aggressively advancing or furthering the levels of public health, public safety, and public welfare" to simply "making beneficial use of property while encouraging safe design and use."

Page 606

In this case, we cannot rely on the plain language of the ordinance to guide our...

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