Tolman v. Salt Lake County

• Decision Date: 06 February 1968
• Docket Number: No. 10935,10935
• Citation: 437 P.2d 442,20 Utah 2d 310
• Parties: d 310 Bion TOLMAN and Lucille Tolman, his wife, Karl J. Hawkins, Jr., and Miriam Hawkins, his wife, Bruce B. Anderson and Dorothy O. Anderson, his wife, K. Jay Holdsworth and Dona Holdsworth, his wife, and Emerson Kennington and Audrie M. Kennington, his wife, Plaintiffs and Appellants, v. SALT LAKE COUNTY, Oscar Hanson, Jr., Philip Blomquist and Marvin G. Jensen, Individually and as Members of the Board of County Commissioners of Salt Lake County, Ralph Y. McClure, County Zoning Administrator, and Lane Ronnow, Director of Building Inspection Department of Salt Lake County, Defendants and Respondents, Bill Roderick, Inc., Intervenor-Respondent.
• Court: Utah Supreme Court

Page 442

437 P.2d 442

20 Utah 2d 310

Bion TOLMAN and Lucille Tolman, his wife, Karl J. Hawkins Jr., and Miriam Hawkins, his wife, Bruce B. Anderson and Dorothy O. Anderson, his wife, K. Jay Holdsworth and Dona Holdsworth, his wife, and Emerson Kennington and Audrie M Kennington, his wife, Plaintiffs and Appellants, v. SALT LAKE COUNTY, Oscar Hanson, Jr., Philip Blomquist and Marvin G. Jensen, Individually and as Members of the Board of County Commissioners of Salt Lake County, Ralph Y McClure, County Zoning Administrator, and Lane Ronnow Director of Building Inspection Department of Salt Lake County, Defendants and Respondents, Bill Roderick, Inc., Intervenor-Respondent.

No. 10935.

Supreme Court of Utah.

Feb. 6, 1968.

K. Jay Holdsworth, of Fabian & Clendenin, Salt Lake City, for appellants.

T. Quentin Cannon, Salt Lake City, for respondents.

Everett E. Dahl, Leon J. Zanoni, Midvale, forintervenor-respondent.

HENRIOD, Justice.

Appeal from a judgment denying a petition for a temporary injunction in a zoning case, where a variance from the Master Plan had been approved by the Salt Lake County Commission, from residential to commercial use. Reversed.

As a preliminary matter we decide that Tolman's contention that further proceedings automatically should be allowed on dismissal of the petition for temporary injunction need not be determined here. We do this for two reasons: 1) That what appeared to be an ex parte matter, because of some sort of undisclosed misunderstanding, extended considerably beyond the scope of the petition's function, and that anyway 2) the matter is moot because of what we decide here.

For a proper understanding of our determination, pro or con, it seems necessary to chronicle somewhat in extenso the facts, most of which are conceded to be true by counsel for both sides, with observations herein stated.

Sometime along about August, 1966, three residents of the general area had heard rumors that a corner lot at 2300 East and 4500 South, where some of the heaviest traffic in the county was extant, might be the subject of an application for rezoning from residential to commercial use in contravention to the master zoning plan then in effect. They approached Mr. McClure, Administrator of the Salt Lake County Planning Commission, personally and by several phone calls, expressing their concern. They were told that before there would be any rezoning there would be posting of notice in a conspicuous place and that the names of neighbors in the area would be obtained. One of the inquirers took this to mean letters would be written to the area residents alerting them as to any projected application to rezone. None was ever written. Besides, Mr. McClure said that the Planning Commission would reject any such attempt,--which it did. The inquirant met with the Planning Commission later on when the matter came up and was told that the application of Roderick, filed theretofore, would not be approved, and consequently, 'we felt safe,'--also that he saw nothing on any poles.

On November 3, 1966, Roderick filed his application for a variance, and although the form was accompanied by printed instructions, one was that under 'Data Required': No. 4 required 'Names and addresses of all persons who own property * * * within 150 feet * * * of the subject property,' the applicant furnished none. Nor did he furnish a signed statement from owners of property affected, indicating their attitudes as to the rezoning, which also was required. Nor did he file two copies of a preliminary development plan as required by the information or instruction sheet. For some undisclosed reason, under 'List the complete legal description of the property,' the legal description given was crossed out by a large cross,--but such description certainly was not the same as appeared in the newspaper publication of notice, unless by way of paraphrasing,--and no one short of an abstractor or real estate draftsman could reconcile the two.

On November 4, 1966, the day after the application was filed, Mr. McClure, Zoning Commissioner, dispatched a letter to Mr. Florence, Chairman of the District Planning Commission, composed of Florence, Hall and Kleiner, stating that Roderick had filed the application, asking for a recommendation and suggesting that 'After you have reached a decision, which should be as soon as possible, fill in the enclosed form in detail and return it to our office.' At this time Mr. Florence was packing to go on a mission for the Church. He gave the letter and form to Hall, who was not the chairman, but who ultimately signed the form as chairman. Shortly thereafter Roderick called Hall, not Florence, and asked if he, Hall, could get the form in by a certain date. About the same time, Hall had a phone call from a brother-in-law, who was an acquaintance of Roderick, who inquired what Hall could do about it. Hall did not contact the other members of the District Committee, there was no public hearing had, and he mailed the form that was to represent the action of the District Committee on November 18 or 19, which was unavailable to the Salt Lake County Planning Commission at its scheduled meeting of November 18, 1966, where the latter commission disapproved the application. On the form mailed by Hall on the 18th or 19th, there was not too much 'in detail' as requested in Mr. McClure's letter to Florence (supra). 'Field trip to the property' was blank. No public meeting was reported. Significantly, however, under 'list the reactions of the surrounding property owners,' it was noted that 'One preferred that homes would be built rather that commercial building,' another 'opposed the increased traffic it would bring to Russell Street' (a narrow street), and another by Mr. Florence, chairman, 'Don't we have enough service stations?' The 'Decision' was 'Approved with stipulations.' Mr. Hall did not state thereon what the 'stipulations' were, but he testified that the approval was conditioned on consistency with the Master Plan. In the meantime Florence had left the country. There never was a majority of the committee that acted on this 'Approval,'--only Hall.

On November 8, 1966, two of the three incumbent county commissioners, Larson and Creer, were defeated in the election by Hanson and Blomquist, thus creating a commission two of the members of which would retire in January, 1967.

On November 18, 1966, the Salt Lake County Planning Commission met. It had not heard from the District Committee. There was no notice of the meeting given to the three residents who previously had talked to Mr. McClure personally and by phone. One of the three residents mentioned happened to be present, however, and noticed the meeting's agenda, but was told that the application likely would not be approved. The Salt Lake County Planning Commission had before it the recommendation of its three-man subcommittee, which unanimously recommended denial of the application, one member stating in its report: 'R 5. no. bad access on 23rd,' another saying 'No Deal,' and the third saying 'R--5 better.'

On November 19, Hall, of the District Planning Commission, mailed in his sole approval under the circumstances mentioned above.

On November 22, 1966, the County Commission set a date for public hearing on December 28, 1966.

On November 23, one day later, Roderick signed a purchase agreement for the subject property.

On November 23, a notice of the public hearing, according to the testimony of one Evans, employee of the Zoning Administrator, was tacked on a bulletin board at the west entrance of the City and County Building (being roughly nine miles from the subject property).

On November 25, one Hardman, another employee, tacked two such notices on telephone poles, one being near the intersection of 2300 East and 4500 South and the other on the next pole south, about 175 feet. Both poles were situate on 2300 East, one in front of the subject property, and the other in front of private property immediately to the south. Both signs were posted about seven feet high and both faced the 2300 East traffic. Mr. Hardman's affidavit also stated that he posted a third notice on the board at the west entrance of the City and County Building. This may have been an error since Mr. Evans said that he posted a notice there on November 23rd. If there were no error it is obvious that two such notices were posted at the City and County Building. An interesting observation is that although proof of posting ordinarily is prepared and filed the next day, Mr. Hardman's proof of posting was sworn to on December 15, 1966, some three weeks later. His testimony also was to the effect that the notices he posted were similar to a blank form he displayed in court; that customarily a copy of the notice posted was kept on file in the office; that he was not sure when he posted the notices; that he never returned to the site to see if they remained posted; that if anyone went from Russell Street west on 4500 South, then south on 2300 East, it would be difficult for him to see the notices he posted, and the same would be true if a person walked north on 2300 East past the poles.

On November 26, 1966, a notice was printed in a paper of general circulation in the County.

On December 13, 1966, Mr. McClure wrote a letter to Roderick reminding him of the public hearing on December 28, stating 'You or your authorized agent are requested to attend this hearing to present any information which may be pertinent to this application.' It seems highly significant to us in establishing our conclusion anent notice, that the same courtesy was not extended to any adjacent property owners on any side of the subject property,--and that if the notice given by posting and publishing,--that Roderick's counsel, and counsel for the zoning authorities contend was quite sufficient for long-time residents of the area, it should have been sufficient for Roderick, who, it must be conceded,...