Whaley v. Park City Mun. Corp.

• Decision Date: 19 June 2008
• Docket Number: No. 20050982-CA.,20050982-CA.
• Citation: 190 P.3d 1,2008 UT App 234
• Parties: Ronald R. WHALEY and Melanie A. Reif, Plaintiffs and Appellants, v. PARK CITY MUNICIPAL CORPORATION; Randy Barton dba The Wooden Dog and Mountain Town Stages; Park City Arts Council, a Utah nonprofit corporation; and Mountain Town Stages, a Utah nonprofit corporation, Defendants and Appellees.
• Court: Utah Court of Appeals

190 P.3d 1

2008 UT App 234

Ronald R. WHALEY and Melanie A. Reif, Plaintiffs and Appellants, v. PARK CITY MUNICIPAL CORPORATION; Randy Barton dba The Wooden Dog and Mountain Town Stages; Park City Arts Council, a Utah nonprofit corporation; and Mountain Town Stages, a Utah nonprofit corporation, Defendants and Appellees.

No. 20050982-CA.

Court of Appeals of Utah.

June 19, 2008.

Russell A. Cline, Salt Lake City, for Appellants.

Mark D. Harrington, Thomas A. Daley, Polly Samuels-McLean, Dwayne A. Vance, and Christina Inge Miller, Park City, for Appellees.

Before Judges DAVIS, McHUGH, and ORME.

OPINION

McHUGH, Judge:

¶ 1 Ronald R. Whaley and Melanie A. Reif (Plaintiffs) appeal the trial court's dismissal of their takings claim and the grant of summary judgment on their nuisance claims and their claims to invalidate certain ordinances passed by Park City Municipal Corporation (Park City). Plaintiffs further appeal the trial court's denial of their motions to reconsider the same rulings. We affirm in part and reverse and remand with respect to Plaintiffs' nuisance and takings claims.

BACKGROUND¹

¶ 2 This case is a noise dispute concerning amplified, outdoor concerts that were held near Plaintiffs' home in Old Town, Park City. Park City authorized the concerts by issuing permits in 1999 and then by adopting ordinances in 2000 and 2001 (the Outdoor Music Ordinances), see Park City, Utah, Ordinance 00-36 (June 1, 2000); id. Ordinance 01-16 (May 10, 2001). The 1999 permits authorized concerts every Tuesday between June 15, 1999, and August 31, 1999, "at a reasonable level as not to unduly disturb the surrounding neighborhood." The 2000 ordinance authorized outdoor music at the Town Lift Plaza and the Summit Watch Plaza each for up to five hours a day, two days a week, at a maximum sound level of ninety decibels.² See Park City, Utah, Municipal Ordinance 00-36 § 4-8a-4(B), -6(A), -7(C). Park City Arts Council (Arts Council) was the only licensee designated by the 2000 ordinance. See id. § 4-8A-9(A). The 2001 ordinance eliminated Town Lift Plaza as one of the venues and added other venues not relevant to this appeal; concerts at Summit Watch Plaza continued at ninety decibels and were authorized on Tuesdays, Fridays, and Saturdays from 5:00 p.m. to 8:00 p.m. See id. Ordinance 01-16 § 4-8A-4, -6. The 2001 ordinance also substituted Mountain Town Stages (MTS) as the sole licensee. See id. § 4-8A-9.³ Both before and after the Outdoor Music Ordinances were enacted, Randy Barton functioned as the concert promoter and sound controller for at least one of the concert venues at issue.⁴

¶ 3 Plaintiffs live in the historic district of Park City, near the lower section of Main Street. Both Town Lift Plaza and Summit Watch Plaza were developed after Plaintiffs moved into their home. Town Lift Plaza is located approximately 150 feet from Plaintiffs' home; Summit Watch Plaza is approximately 380 feet away. Because of Plaintiffs' close proximity to the venues, the outdoor concerts impeded Plaintiffs' use of their home. According to Plaintiffs, "Basic life activities, such as sleeping, resting, relaxing, working, studying, reading, or doing anything that required concentration, were impossible due to the loud noise created by the outdoor music concerts."

¶ 4 Plaintiffs repeatedly complained about the concerts to Barton, the permit holders, the Park City Police, the Park City Planning Commission, and the City Council for Park City. In 1999, Park City revoked at least two sound permits for violations of the permit conditions that required sound levels to "remain at a reasonable level as not to unduly disturb the surrounding neighborhood." Plaintiffs' complaints also prompted Park City to adopt the Outdoor Music Ordinances, which provided more direct guidelines concerning the concerts. These ordinances were passed after several reports and hearings and after Park City received recommendations from "a University of Utah class concerning the effects and regulation of noise and the construction of sound mitigating stages, to properly set forth reasonable regulations and time limits to substantially mitigate the effects of such music upon neighboring residents and businesses." See id. Ordinance 01-16, at 1. Plaintiffs contest the reasonableness and effectiveness of the limitations contained in the ordinances. For example, Plaintiffs' acoustical expert testified by affidavit that the sound mitigating stages required by the ordinances "actually funnel sound directly into certain residential areas."

¶ 5 Plaintiffs continued to complain about the outdoor concerts and brought suit when no further action was taken by Defendants. Plaintiffs alleged eight causes of action — three nuisance claims, one claim for injunctive relief, one claim alleging violations of the general noise ordinance, one claim alleging violations of the 1999 permits, one claim challenging the Outdoor Music Ordinances, and one "takings" claim. Before filing an answer, Defendants filed a Motion for Summary Judgment and to Dismiss.⁵ The trial court granted Defendants' motions. When the trial court refused to reconsider its rulings, Plaintiffs appealed.

ISSUES AND STANDARDS OF REVIEW

¶ 6 Plaintiffs identify twelve issues on appeal. However, these issues are more appropriately condensed into four categories.

¶ 7 First, Plaintiffs argue the trial court erred in granting summary judgment on their nuisance claims. Summary judgment should be entered only if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Utah R. Civ. P. 56(c). "This court reviews a trial court's legal conclusions and ultimate grant or denial of summary judgment for correctness, and views the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party." Forsberg v. Bovis Lend Lease, Inc., 2008 UT App 146, ¶ 7, 184 P.3d 610 (internal quotation marks omitted).

¶ 8 Second, Plaintiffs challenge the constitutionality of the Outdoor Music Ordinances. "We review a constitutional challenge to an ordinance for correctness, giving no deference to the trial court." Salt Lake City v. Wood, 1999 UT App 323, ¶ 4, 991 P.2d 595.

¶ 9 Third, Plaintiffs challenge the trial court's dismissal of their takings claim for failure to exhaust their administrative remedies. We review this issue for correctness. See Nebeker v. Utah State Tax Comm'n, 2001 UT 74, ¶¶ 9, 11, 34 P.3d 180; Stichting Mayflower Mountain Fonds v. Park City Mun. Corp., 2007 UT App 287U, para. 2, 2007 WL 2446489 (mem.).

¶ 10 Fourth, Plaintiffs challenge the trial court's denial of their motions for reconsideration. "A trial court's decision to grant or deny a motion to reconsider summary judgment is within the discretion of the trial court, and we will not disturb its ruling absent an abuse of discretion." Timm v. Dewsnup, 921 P.2d 1381, 1386 (Utah 1996) (emphasis omitted).

ANALYSIS

I. The Grant of Summary Judgment on Plaintiffs' Nuisance Claims

¶ 11 "There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word `nuisance.'" W. Page Keeton et al., Prosser and Keeton on the Law of Torts (Prosser on Torts) § 86, at 616 (5th ed.1984). The truth of Prosser's declaration is substantiated by this case, which raises a number of issues that require a careful analysis of Plaintiffs' claims and of the law on nuisance.

¶ 12 The common law recognized two types of nuisance claims: public and private. See id. at 618; Restatement (Second) of Torts § 821A & cmt. a (1979).⁶ Utah law also recognizes both causes of action, and the legislature has adopted distinct statutory provisions codifying each of these theories. See Utah Code Ann. § 76-10-803 (2003) (public nuisance); Utah Code Ann. § 78-38-1 (2002) (private nuisance). Here, Plaintiffs alleged, and the trial court dismissed, both nuisance causes of action.⁷ Specifically, the trial court ruled that the licenses and ordinances authorized by Park City barred Plaintiffs' claims. We address the trial court's ruling separately for each claim of nuisance.

A. Public Nuisance

¶ 13 "A public nuisance is a crime against the order and economy of the state...." Utah Code Ann. § 76-10-803. "The original remedies for a public nuisance were a prosecution for a criminal offense or a suit to abate or enjoin the nuisance brought by or on behalf of the state or an appropriate subdivision by the proper public authority." Restatement (Second) of Torts § 821C cmt. a (1979). Nevertheless, "[w]hile the civil redress of the societal wrong caused by a public nuisance is usually through an action for abatement by a public official, private actions for damages may also be pursued." Erickson v. Sorensen, 877 P.2d 144, 148 (Utah Ct.App.1994) (citations omitted); see also Lewis v. Pingree Nat'l Bank, 47 Utah 35, 151 P. 558, 561 (1915) (allowing private action for public nuisance); Restatement (Second) of Torts § 821C (discussing private recovery for public nuisance). However, the plaintiff in a private suit must establish additional elements beyond those required to be proven by a public entity. See, e.g., Erickson, 877 P.2d at 148-49. In this case, Plaintiffs must establish the following elements to recover on their claim: (1) the alleged nuisance consisted of "unlawfully doing any act or omitting to perform any duty," Utah Code Ann. § 76-10-803(1) (emphasis added); (2) the "act or omission ... in any way render[ed] three or more persons insecure in life or the use of property," id. § 76-10-803(1)(e);⁸ (3) Plaintiffs "suffered damages different from those of society at large," Erickson, 877 P.2d at 148; accord Lewis, 151 P. at 561; (4) Defendants caused or are responsible for the nuisance complained of; and (5) "[D]efendant[s'] conduct was unreasonable," Erickson, 877 P.2d at 148-49.

¶ 14 In this case, the trial court granted summary judgment on Plaintiffs' public nuisance claim because most...