Town of Alta v. Ben Hame Corp.

Citation836 P.2d 797
Decision Date26 June 1992
Docket NumberNo. 910129-CA,910129-CA
PartiesTOWN OF ALTA, Plaintiff and Appellee, v. BEN HAME CORPORATION, Defendant and Appellant.
CourtCourt of Appeals of Utah

James W. McConkie (argued), Parker, McKeown & McConkie, Murray, for defendant and appellant.

E. Barney Gesas (argued), William H. Christensen, Matthew C. Barneck, Campbell, Maack & Sessions, Salt Lake City, for plaintiff and appellee.




Ben Hame Corporation (BHC) appeals the grant of an injunction prohibiting it from conducting commercial lodging operations in its single-family residence in violation of the Alta Town (Alta) zoning ordinance. We affirm.

BHC claims that its rental activity was a valid accessory use of its residence, and if not, that equitable estoppel should bar Alta from enforcing the zoning ordinance. Additionally, BHC asserts that Alta's ordinance is unconstitutional because the subdivision in which the Ben Hame residence is located is an "arbitrary" spot zone.

Alta occupies about four square miles, including both sides of Little Cottonwood Canyon at its upper reaches. Prior to 1982, the Blackjack Village Subdivision was developed under county zoning ordinances on land adjacent to Alta. Blackjack occupies land located on the south slope of the canyon and consists of nine lots of at least one-half acre each. The north side of the subdivision, consisting of three lots, fronts on the Bypass Road. Lot Five is one of the three lots that front on the Bypass Road. The Bypass Road and the main road, U-210, provide vehicular access to and from Alta. U-210 is often closed because of snow avalanches; hence the Bypass Road is a critical traffic artery for Alta. BHC, an Illinois corporation, purchased Lot Five in Blackjack while the subdivision was in Salt Lake County zone FR-0.5. The only permitted uses in that zone were (1) agriculture, (2) single-family dwellings, and (3) accessory uses and structures customarily incidental to a permitted use. Salt Lake County, Utah, Ordinances § 22-9A-2 (1975). Single-family dwellings, however, did not include hotels, apartment hotels, boarding houses, lodging houses, mobile homes, tourist courts or apartment courts. Salt Lake County, Utah, Ordinances § 22-1-6(21) (1966). 1

BHC's residence was designed and constructed as a 5,000 square foot single-family residence pursuant to county zoning and building codes and was first occupied in 1981. The home was built against the south slope of the canyon on three levels. As the structure rises, each level is set back from the front to accommodate the slope of the mountain. BHC's tax and corporate filings stated its business in Utah was "operation of hotels and inns." BHC printed and distributed brochures and rate schedules advertising the residence for rental. BHC stated that its home "can accommodate 12 to 20 people." Its annual rental rate schedules quoted rates for every month of the year with a base rate plus a surcharge for "each additional person." BHC also advertised and provided an on-site chef and airport shuttle service. BHC's 1988-89 rate schedule stated that rates included "services of resident manager and cooking 5/6 days out of 7 days (breakfast and dinner) and housekeeping services daily." The standard booking was stated as "7 days--Saturday to Saturday." A service charge applied "if shorter bookings are accepted." From 1980 to 1988, the number of rental occupants ranged from eight to fifteen. In 1988, BHC received about $54,000 in rental income from short-term rentals of its residence.

All nine lots of the Blackjack Village subdivision were annexed into Alta on August 11, 1982 and consequently into Alta zone FR-0.5. 2 Alta's ordinance stated that the permitted uses in this zone were the same three uses permitted by the county's ordinance mentioned above. Alta, Utah, Ordinances § 22-9-2 (1972). However, while the county ordinance did not state that commercial rentals were either permitted or prohibited in the FR-0.5 zone, Alta's ordinance contained a specific prohibition:

Commercial Rental Prohibited. It shall be deemed to be a prohibited commercial use in all FR [Forestry and Recreation] zones to lease or rent any dwelling or other structure, or portion thereof, for lodging purposes, for a period of thirty (30) days or less.

Alta, Utah, Ordinances § 22-9-3A (1979).

BHC applied three times to Alta's town clerk for a business license to operate a "lodging facility." The clerk issued licenses for six months beginning November 1, 1983, and November 1, 1984, and for twelve months on November 1, 1986. The record does not indicate that BHC received any licenses after these. In December of 1988, Alta filed this action for injunctive relief to prohibit BHC's ongoing short-term rentals of its home as a commercial lodging facility in violation of Alta's zoning ordinance. The trial court granted Alta a preliminary injunction on April 9, 1990 and, on cross motions for summary judgment, granted Alta's summary judgment on August 15, 1990, resulting in a permanent injunction. On appeal, we examine BHC's defensive claims in turn.


BHC claims that its rental operation was a valid accessory use in Salt Lake County zone FR-0.5. Further, BHC claims that since such use was valid in the county zone, the use became a valid nonconforming use in Alta's FR-0.5 zone. Accordingly, we first examine the accessory use assertion.

The county zoning ordinance defines accessory use as "[a] subordinate use customarily incidental to and located upon the same lot occupied by a main use." Salt Lake County, Utah, Ordinances § 22-1-6(68) (1966). The quoted language requires that a valid accessory use be customarily incidental to a main use. Thus, the question is whether intensive short-term commercial rental is a subordinate use customarily incidental to the main use as a single-family dwelling.

Here, the trial court concluded that "accessory use" as defined by the Salt Lake County ordinances applicable at the time BHC's house was constructed "does not include over-night rental use of a single family house." We accord conclusions of law no particular deference but review them for correctness. Scharf v. BMG Corp., 700 P.2d 1068, 1070 (Utah 1985). The trial court's interpretation of a statute presents a question of law reviewed for correctness without deference. Ward v. Richfield City, 798 P.2d 757, 759 (Utah 1990); Berube v. Fashion Centre, Ltd., 771 P.2d 1033, 1038 (Utah 1989). We apply the same standard to the trial court's interpretation of an ordinance.

BHC has noted that "there has been no official interpretation by Salt Lake County which would bind or influence the court's interpretation of the county ordinances." Just as the interpretation of a statute or zoning ordinance is a question of law for the court, Burley Lagoon Improvement Ass'n v. Pierce County, 38 Wash.App. 534, 686 P.2d 503, 505 (1984), the determination of what uses are accessory uses customarily incidental to a single-family dwelling is a question of law. See Thomas v. Zoning Hearing Bd., 121 Pa.Cmwlth. 393, 550 A.2d 1045, 1046 n. 3 (1988) ("whether a use constitutes an accessory use under a particular ordinance is a question of law, but one which can be answered only by the consideration of the underlying factual situation"); City of Boise City v. Gabica, 106 Idaho 94, 675 P.2d 354, 356 (Ct.App.1984) (deeming it clear as a matter of law that business was not "incidental" to residential use of single-family dwelling); Potts v. City of Hugo, 416 N.W.2d 465, 468 (Minn.Ct.App.1987) (holding as a matter of law that parking a semi-truck and trailer is not customarily incidental to a residential use).

BHC contends that county officials interpreted the words "accessory use" to include and allow short-term rentals of single-family dwellings. BHC relies on the affidavit of the county's Director of Development Services, Ken Jones. Mr. Jones stated that he was responsible for enforcing county zoning ordinances when the BHC home was first rented. He stated that the county considered the short-term rental of recreation homes in the canyons to be an accessory use. BHC further refers to the fact that the county never took any enforcement action to prohibit such rentals and refused to adopt a proposal expressly prohibiting short-term rental of canyon homes.

BHC also relies upon the affidavit of the Wasatch Front Ski Association, which arranges short-term rentals of county dwellings for skiers. The affidavit states that, although the association had advised the county of its activities, at no time had the county taken any action to prohibit such rentals or advised the association that such rentals were prohibited by the ordinance. Thus, BHC concludes that "[t]he declared custom, practice, and intent of Salt Lake County is to allow such short-term seasonal rentals." Although we defer to the county commission's legislatively delegated discretion in making legal decisions, Sandy City v. Salt Lake County, 827 P.2d 212, 218 (Utah 1992), county administrative officials may not forfeit the power of enforcement by disregarding an ordinance. Salt Lake County v. Kartchner, 552 P.2d 136, 138 (Utah 1976). The custom or practice of certain county officials not to enforce the prohibition of short-term rentals of single-family residences does not necessarily mirror the intent of the legislative body in enacting the zoning ordinance with the language now under scrutiny.

We divine the meaning of the county zoning ordinance regarding accessory use from the general purpose of the ordinance. "In interpreting and applying the provisions of this Ordinance, the requirements contained herein are declared to be the minimum requirements for the purposes set forth." Salt Lake County, Utah, Ordinances § 22-1-3 (1966). By specifying that the permitted uses were agriculture, single-family dwellings, and accessory uses customarily...

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