VIEW CONDOMINIUM OWNERS ASS'N v. MSICO

• Decision Date: 08 April 2004
• Docket Number: No. 20020746-CA.,20020746-CA.
• Citation: 90 P.3d 1042,2004 UT App 104
• Parties: The VIEW CONDOMINIUM OWNERS ASSOCIATION, a Utah condominium association, Plaintiff and Appellant, v. MSICO, L.L.C., a Utah limited liability company; The Town of Alta, a political subdivision of the State of Utah; and John Does 1 through 10, Defendants and Appellees.
• Court: Utah Court of Appeals

90 P.3d 1042

2004 UT App 104

The VIEW CONDOMINIUM OWNERS ASSOCIATION, a Utah condominium association, Plaintiff and Appellant, v. MSICO, L.L.C., a Utah limited liability company; The Town of Alta, a political subdivision of the State of Utah; and John Does , Defendants and Appellees.

No. 20020746-CA.

Court of Appeals of Utah.

April 8, 2004.

Robert E. Mansfield and Stephen Christiansen, Van Cott Bagley Cornwall & McCarthy, Salt Lake City, for Appellant.

William H. Christensen and Lawrence B. Dingivan, Callister Nebeker & McCullough, Salt Lake City, for Appellees.

Before Judges BENCH, DAVIS, and JACKSON.

OPINION

JACKSON, Judge:

¶ 1 The View Condominium Owners Association (The View) challenges the district court's denial of its motion for summary judgment and the district court's grant of summary judgment to MSICO, L.L.C. (MSICO) and the Town of Alta (Alta). We affirm in part and reverse and remand in part.

BACKGROUND

¶ 2 The Sugarplum Planned Unit Development (Sugarplum PUD) comprises approximately 25 acres in Alta near the top of Little Cottonwood Canyon. On August 12, 1983, Sorenson Resources Company (Sorenson) recorded a plat of the Sugarplum PUD in the Salt Lake County Recorder's Office preliminary to developing the property. Sorenson simultaneously recorded a "Master Declaration of Covenants, Conditions, and Restrictions of Sugarplum, a Planned Unit Development" (the Declaration). In the "Recitals" section of the Declaration, Sorenson declared that "the Project shall be held, sold, conveyed ... and used subject to the following Declaration as to ... covenants, servitudes, restrictions, limitations, conditions and uses... hereby specifying that such Declaration shall operate for the mutual benefit of all Owners of the Project and shall constitute covenants to run with the land." (Emphasis added.)

¶ 3 Under the terms of section 1.25 of the Declaration, the Sugarplum PUD was divided into nine separate lots, "as shown on that certain map entitled `SUGARPLUM, A PLANNED UNIT DEVELOPMENT' filed concurrently herewith in the office of the Salt Lake County Recorder, as the same may be amended from time to time." (Emphasis added.) The amendment power referred to in section 1.25 was expounded upon in Article XIII of the Declaration. Section 13.1 accordingly states that, "[until] sale of the first Lot or Unit[,] Declarant shall have the right to amend this Declaration." Section 13.2 then states that, even after sale of the first lot, "Declarant shall have the sole authority at any time to amend this Declaration, and the Map, if necessary, for the purpose of allocating density to Lots owned by Declarant or changing the configuration, size or location of Lots owned by Declarant." (Emphasis added.)

¶ 4 Article III of the Declaration sets forth the "Use Restrictions" for the Sugarplum PUD. Under the terms of section 3.1, "[e]xcept as otherwise provided herein, each Lot may be used in any manner consistent with the requirements of applicable zoning.... Nevertheless, ... Lot 5 shall be reserved for and improved with a parking facility for the owners of Lot 4 and Lots 6-9 and the Units constructed thereon." (Emphasis added.)

¶ 5 On November 26, 1984, Sorenson recorded an Amended Sugarplum Plat (the Amended Plat). Under the terms of the Amended Plat, the configuration, size, and spatial relationships of the nine lots were significantly altered. Under the terms of the Amended Plat, the land previously designated as Lot 5 was now subsumed into the reconfigured Lots 6, 8, and 9. Significantly, approximately two-thirds of the land that had previously been recorded as Lot 5 was now included in the property allocated to the reconfigured Lot 8. As a result, Lot 5 was reconstituted across the street from Lots 6, 7, 8, and 9 using land that had previously been part of Lot 4. Finally, the Amended Plat omitted the prior references to Lot 5 as a site for "parking and commercial development."

¶ 6 The View's predecessor in interest purchased Lot 8 of the Sugarplum PUD on January 4, 1985. MSICO purchased Lots 4, 5, and 9 on December 31, 1988.

¶ 7 Due to the high volume of snow that falls in the area each year, the town of Alta requires snow storage plans from property owners before building permits are issued. Preliminary to receiving approval for the Sugarplum PUD (and prior to the sale of any of the lots), Sorenson representative Walter Plumb (Plumb) sent a letter to the town of Alta to clarify Sorenson's

intent with regard to snow storage at the [Sugarplum] project. During development of Lots 6 and 8 ... snow shall be stored in appropriate areas. Should there be any excess snow, it may be stored on Lot 9 as recorded. We recognize that storage areas may change as to utilize several alternatives... that exist. Any changes shall be submitted at such time as we make applications for development in addition to our first one hundred units.

Alta subsequently reviewed the proposed snow storage plan and requested changes. On March 5, 1985, Alta informed the developer of The View that it had approved Lot 8 for development. This approval was predicated on the "understanding that adequate snow storage/removal has been addressed only for the first 100 units of the P.U.D. ... with substantial storage planned for Lot 9." On April 27, 1985, Alta approved a snow removal plan for Lot 8. Under the terms of this plan, Lot 9 was expressly designated as overflow snow storage for The View. Since 1985, The View has continuously used Lot 9 for snow storage.

¶ 8 In 1988, Sorenson filed suit against Plumb alleging that Plumb had fraudulently failed to disclose to Sorenson that he had granted the use of Lot 9 for overflow snow storage. In a subsequent settlement of this action, Plumb agreed to "cooperate fully with and assist Sorenson with the removal of the snow storage designation of Lot 9."

¶ 9 In September 1996, MSICO filed suit against Alta. Among the causes of action listed in that suit were causes arising out of Alta's refusal to allow MSICO to develop Lot 9. On November 17, 1998, Alta sent a letter to the owners of The View to apprise them of the status of this litigation. In that letter, Alta stated that

"Lot 9" was designated by the developers of "The View" as the snow storage area for "Lot 8." The Town granted construction approvals for The View based upon a snow storage plan designating "Lot 9" to receive snow from "Lot 8." ...

[MSICO] is taking the position in the litigation against the Town that "Lot 9" has not been validly designated as snow storage for snow removed from "Lot 8".... If [MSICO] succeeds in its claim that The View's snow storage plan is invalid insofar as it designated "Lot 9" to receive snow from "Lot 8," such a result would have major implications for The View home owners.

Snow storage is a life-safety issue in Alta. The Town has no choice but to require snow not be pushed into streets or impair emergency access or traffic. If the View Condominium Owner's Association were to lose its ability to store snow on sites approved in its snow storage plan, the Town would have little choice but to take legal action to protect the public safety and welfare. That action might even include an injunction precluding occupancy of The View or portions thereof during snow periods.

The Town vigorously disputes [MSICO]'s allegations that "Lot 9" is not validly dedicated as snow storage for "Lot 8," The View.

(First, third, and fourth emphases added.)

¶ 10 Pursuant to the litigation with MSICO, Alta filed a summary judgment motion, in which it argued that "[MSICO] cannot deny that its predecessor [Sorenson] sold Lot 9 to [MSICO] knowing that Lot 9 had been designated as snow storage." In a deposition in that case, Alta's Mayor testified that "Lot 9 was dedicated to snow storage by Walt Plumb in agreement with the planning commission." At a November 1999 town hearing arising out of the dispute, Alta's legal counsel testified that MSICO "knew there was a problem [arising out of the Lot 9 snow storage designation] as of 1988."

¶ 11 MSICO and Alta settled their dispute on November 9, 2000. As part of this settlement, Alta and MSICO purported to remove the designation of Lot 9 for The View's snow storage. Anticipating that The View would seek judicial enforcement of its snow storage rights, MSICO and Alta agreed that MSICO would defend and indemnify Alta from "assertions or claims that may be brought by owners of units in Lots 6, 7, or 8 of the Sugarplum PUD ... concerning a prior snow storage designation of Lot 9." Further, as part of the settlement agreement, Alta purportedly approved a new snow storage plan for Lot 9 which would largely eliminate the use of Lot 9 as a snow depository site.

¶ 12 On December 13, 2000, The View filed its complaint, alleging six causes of action against MSICO and Alta. In its complaint, The View sought to enforce what it believed to be a restrictive covenant guaranteeing its occupants the right to use the reconstituted Lot 5 as a parking facility. The View also sought to enforce its right to use Lot 9 as overflow snow storage. It predicated this assertion on four different legal theories: first, The View argued that it had a contract with MSICO and Alta allowing it to use Lot 9 as overflow snow storage; second, The View argued that principles of estoppel should be applied to prevent MSICO or Alta from contesting The View's right to store snow on Lot 9; third, The View argued that Alta's efforts to deprive it of its snow storage right on Lot 9 constitute a compensable taking; fourth, The View argued that MSICO had granted it an enforceable snow storage easement.

¶ 13 Following preliminary motions and discovery, The View filed a motion for summary judgment on the Lot 5 parking claim. MSICO/Alta responded with their own motion for summary judgment on all claims before the court. Following briefing and oral argument, the district court denied The View's summary judgment motion and granted MSICO/Alta's ...