Scherbel v. Salt Lake City Corp.

• Decision Date: 03 May 1988
• Docket Number: No. 19633,19633
• Parties: Jack F. SCHERBEL, Plaintiff and Appellant, v. SALT LAKE CITY CORPORATION, Defendant and Respondent.
• Court: Utah Supreme Court

Page 897

758 P.2d 897

Jack F. SCHERBEL, Plaintiff and Appellant, v. SALT LAKE CITY CORPORATION, Defendant and Respondent.

No. 19633.

Supreme Court of Utah.

May 3, 1988.

Rehearing Denied May 25, 1988.

Leon A. Halgren, Salt Lake City, for plaintiff and appellant.

Roger Cutler, Judy F. Lever, Bruce Baird, Salt Lake City, for defendant and respondent.

DURHAM, Justice:

Appellant Jack F. Scherbel appeals the district court's dismissal of his complaint challenging the Salt Lake City Council's decision to deny zoning approval of his application to construct a condominium complex. Appellant argues that the City Council did not have authority to render its decision, that he had vested rights to a building permit under the zoning ordinance that existed at the time of his original application, and that the community group opposing his application before the City Council did not have standing to pursue the challenge. The district court denied appellant's complaint for extraordinary relief after a trial on the merits. We affirm the trial court's action, but disagree in part with its analysis.

Appellant owns, or has an option to buy, four parcels of property at the southeast corner of Second Avenue and "E" Street in "the Avenues," a historical district of Salt Lake City. He proposed a number of building projects for that property over several years, and on October 24, 1979, he began the process of obtaining a building permit for a 35-unit condominium project.

Pursuant to Revised Ordinances of Salt Lake City, Utah §§ 51-32-1 to -14 (1965), an applicant seeking to obtain a building permit in a historic district, such as the Avenues, must submit a preliminary application of the design to the Historical Landmark Committee (HLC). The HLC examines the conceptual design and makes an advisory recommendation to the Salt Lake City Planning Commission based on the proposed project's compatibility with the historic nature of the district. The Planning Commission then grants or denies conceptual approval ¹ of the plans. If conceptual approval is granted, the applicant typically prepares detailed plans which are reviewed by city officials for compliance with zoning requirements and the building code before a building permit is issued. If conceptual approval is denied, Revised Ordinances of Salt Lake City, Utah § 51-32-11 authorizes an appeal to the Board of City Commissioners within thirty days of the Planning Commission's decision.

In May of 1979, before appellant's preliminary application to the HLC, the structure of Salt Lake City's government was changed. Prior to 1979, Salt Lake City was governed by a board of commissioners headed by the mayor. However, with the passage in 1977 of the Optional Forms of Municipal Government Act, Utah Code Ann. §§ 10-3-1201 to -1228 (1986), municipalities acquired the option of adopting either a council-mayor or a council-manager form of government. The voters of Salt Lake City adopted the council-mayor form. The new form of government provides for a separation of executive and legislative functions, see Utah Code Ann. § 10-3-1209 (1986), both of which were previously combined in the Board of City Commissioners. The new form of government went into effect in January of 1980, after appellant's preliminary application to the HLC, but before his appeal from the Planning Commission's later decision was taken.

The HLC in this instance recommended that the Planning Commission deny appellant's application for the 35-unit complex. Nonetheless, appellant sought the Planning Commission's approval of the project by submitting a revised plan for a 32-unit complex. The revised plan was submitted directly to the Planning Commission even though the HLC had not been given the opportunity to review it. ² The Planning Commission approved the revised plan. A Utah corporation made up of Avenue residents, the Greater Avenues Citizens Council (GACC), requested reversal of the Planning Commission's decision in a letter to the mayor of Salt Lake City.

Under Revised Ordinances of Salt Lake City, Utah § 52-32-11, GACC's appeal of the Planning Commission's decision should have gone to the Board of City Commissioners. However, under the new form of government, the Board no longer existed. On February 19, 1980, the mayor, pursuant to an opinion from the city attorney's office, issued an executive order delegating authority to hear zoning appeals to the newly-formed City Council.

The City Council accepted the mayor's delegation and, upon hearing the appeal, reversed the Planning Commission's decision and denied appellant's preliminary application for the 32-unit project. Appellant then filed an action for extraordinary relief in district court, arguing that the City Council was not properly authorized to hear the appeal. Appellant also argued that his project was entitled to a building permit under the zoning ordinance that had been in place at the time of his original application. On February 19, 1980, during the time his applications were pending, the City Council approved a new zoning ordinance which downzoned appellant's property from "R-6" to "R-2H." ³ At the time he filed his complaint for extraordinary relief, appellant also obtained an injunction preventing publication of the "R-2H" zoning ordinances. On March 3, 1980, he filed yet a third application with the HLC for an 18-unit project. This third project and a fourth alternative, a 24-unit project, were evaluated by the HLC on March 17, 1980. Appellant later abandoned them when the injunction was lifted and the "R-2H" zoning ordinance became effective.

We disagree with the trial court's analysis permitting the City Council to hear appeals of Planning Commission decisions. The Optional Forms of Municipal Government Act, as analyzed in Martindale v. Anderson, 581 P.2d 1022 (Utah 1978), prohibits the City Council from hearing such appeals because of the separation of powers doctrine. Utah Code Ann. § 10-3-1209 (1986) defines the council-mayor form of government:

The optional form of government known as council-mayor form vests the government of a municipality which adopts the form in two separate, independent, and equal branches of municipal government.

In Martindale, we analyzed this statute and held that the approval of subdivision plots by the mayor of a city under the council-mayor form of government constituted an exercise of executive, not legislative, power.

[W]e are compelled to conclude that [the statute] in fact provides for the absolute separation of executive and legislative powers. A fortiori, the 1977 modifications of the Act specifically vest the whole of the executive powers in the Mayor and only the legislative powers in the Council, and we consequently hold that the council-mayor form of government as adopted by Logan City is a true separation of powers form of government.

Id. at 1027.

As in Martindale, we hold that the authority to resolve zoning disputes is properly an executive function rather than a legislative one. Concomitantly, the passage of general zoning ordinances and the determination of zoning policy is properly vested in the legislative branch. "Legislative power, as distinguished from executive power, is the authority to make laws, but not to enforce them or appoint the agents charged with the duty to make such enforcement. The latter are executive functions." Id. Thus, a city council under the council-mayor form of government may not hear appeals from zoning decisions of a planning commission.

In the interest of clarification, we will determine the proper body to hear zoning appeals from planning commission under the council-mayor form of government. In Chambers v. Smithfield City, 714 P.2d 1133 (Utah 1986), we addressed an analogous question, i.e., the procedure for granting zoning variances. Under Smithfield City ordinances, a variance request went first to the Board of Adjustment and the Planning Commission for a recommendation. The recommendations were then submitted to the Smithfield City Council, which made the final decision concerning the variance. We analyzed this procedure and held:

This procedure does not comport with the provisions of the enabling act. U.C.A., 1953, §§ 10-9-1 to -18 (1973 ed. and Supp.1985). That Act provides that the legislative body of a city (in this case the city council) has the right to regulate zoning. § 10-9-1. However, in order to exercise that power, the legislative body shall provide for the appointment of a Board of Adjustment. § 10-9-6. The Board is to be an appellate body for any person aggrieved by a zoning decision. § 10-9-9. Section 10-9-12 sets forth the powers of the Board.

Id. at 1136 (emphasis added). We have thus previously construed the act which grants zoning power to cities and towns as delegating the authority to hear appeals of any zoning decision to the city board of adjustment. ⁴ We therefore hold that the board of adjustment is the proper body to hear zoning appeals from the planning commission under the council-mayor form of government. ⁵

The second issue to be addressed is whether appellant had a vested right in the "R-6" zoning of his property at the time of his application for conceptual approval on October 24, 1979. On February 19, 1980, the mayor issued an order granting GACC's request and authorizing the City Council to hear zoning appeals. On the same day that the appeal was granted, the City Council approved the ordinance which downzoned appellant's property. Although appellant's injunction initially prevented the publication of the new ordinance, the injunction was eventually lifted. Appellant argues that because his application was on appeal at the time of the change, he is entitled to a building permit under the original "R-6" zoning.

The question of when rights to a building permit vest under a zoning ordinance is not a novel one. In Western Land Equities, Inc. v. City of Logan, 617 P.2d 388 (Utah 1980), the plaintiffs submitted a preliminary...