SLC Mission v. SLC

2008 UT 31
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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Salt Lake City Mission and No. 20060962
Pastor Wayne Wilson,
Plaintiffs and Appellants,
v.
Salt Lake City, Mayor Rocky Anderson,
former Major Deedee Corradini,
Salt Lake City Redevelopment Agency,
Sherrie B. Reich, B.L. Smith,
Randy Taylor, Marge Harvey,
Kim Guess, Alicia Orgill and F I L E D
John Does I-LX,
Defendants and Appellees. April 22, 2008
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Third District, Salt Lake
The Honorable Joseph C. Fratto, Jr.
No. 990908945
Attorneys: Matthew Hilton, Kaysville, Jacqueline F. de Gaston,
Orem, for plaintiffs
Evelyn J. Furse, Lynn H. Pace, J. Wesley Robinson,
Salt Lake City, for defendants
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WILKINS, Justice:
¶1 Appellants Salt Lake City Mission and Wayne Wilson
claim that Salt Lake City and various of its officers and
employees have violated the Mission’s religious freedom under
both the Utah and federal constitutions. We hold that the
Mission’s claims under the Utah Constitution were properly
dismissed because the Mission failed to exhaust its
administrative remedies. We further hold that the Mission’s
claims under the federal constitution are not ripe, and were thus
also properly dismissed. We therefore affirm the decision of the
district court.
BACKGROUND

No. 20060962 2
¶2 Salt Lake City Mission, founded by Pastor Wilson,
(collectively “the Mission”) opened in 1996. The Mission
provided religious services and temporal resources to homeless
and needy persons suffering from addiction problems. After
moving from its original location, the Mission considered a
number of relocation properties, including five which are
relevant to this appeal.
¶3 The Mission’s planned use at each location included a
“conditional use” under the relevant zoning ordinances, thus
requiring the Mission to obtain a conditional use permit (“CUP”).
The Mission claims that the City prevented it from applying for
CUPs for four of the locations. The Mission did apply for a CUP
for the fifth location, which the planning commission denied.
The Mission alleges that this decision was affected by the City
acting in violation of relevant zoning ordinances. The Mission
did not appeal the planning commission’s decision.
¶4 The Mission subsequently filed suit against the City,
alleging that the City’s actions had violated the Mission’s right
to the free exercise of religion under the state and federal
constitutions. The City filed a summary judgment motion, arguing
that the Mission’s claims were not justiciable. In a memorandum
decision, the district court held that the Mission had failed to
exhaust its administrative remedies and that its federal claims
were not ripe. The district court therefore dismissed all of the
Mission’s claims. The Mission appeals that decision.
STANDARD OF REVIEW
¶5 We review a grant of summary judgment for correctness,
granting no deference to the district court’s legal conclusions.
Bowman v. Kalm, 2008 UT 9, ¶ 6, ___ P.3d ___. “[W]e view the
facts in the light most favorable to the non-moving party.” Id.
(internal quotation marks omitted). Summary judgment is
appropriate where there are no genuine issues of material fact,
and the moving party is entitled to judgment as a matter of law.
Utah R. Civ. P. 56(c).
ANALYSIS
I. THE EXHAUSTION REQUIREMENT
¶6 Under Utah law, there is a specific exhaustion
requirement with regard to land use decisions: “No person may
challenge in district court a municipality’s land use decision
. . . until that person has exhausted the person’s administrative
remedies . . . .” Utah Code Ann. § 10-9a-801(1) (Supp. 2007).

1 The Mission also asserts that another administrative use
letter, which like the first was issued in violation of the
relevant zoning ordinances, impacted the planning commission’s
decision on the fifth location.
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“Where the legislature has imposed a specific exhaustion
requirement . . . we will enforce it strictly.” Patterson v. Am.
Fork City, 2003 UT 7, ¶ 17, 67 P.3d 466. Strict enforcement of
this provision dictates that if a party “fails to exhaust [its]
administrative remedies prior to filing suit, the suit must be
dismissed.” Id. ¶ 16.
¶7 The process for obtaining a CUP requires, among other
things, filling out an application with information as to the
location and the proposed use, appearing before the relevant
community council regarding the proposed use, and including with
the application a signed statement to the effect that the
community council presentation was made. Salt Lake City, Utah,
City Code § 21A.54.060(A) (2007). After the application is
complete, it is submitted to the planning commission, which holds
a public hearing on the proposed permit. Id. § 21A.54.060(E).
If the planning commission denies the conditional use, then the
aggrieved party may appeal the decision to the Land Use Appeals
Board within thirty days. Id. § 21A.54.160.
¶8 In this case, the Mission failed to exhaust its
administrative remedies. With regard to four of the properties,
the Mission did not file CUP applications. As to one of those
sites, the Mission claims it was unable to apply because the City
failed to notify the relevant community council of the Mission’s
need to be on the agenda; in reference to two others, the Mission
claims the City failed to provide it with a “mandatory form” used
in the application process to verify the applicant’s appearance
before the community council; with the fourth site, the Mission
states that it was prevented “from qualifying for permitted use”
because the City issued an administrative interpretation letter
regarding the proposed use prior to their applying for a CUP.1
¶9 It may be that these alleged actions by the City would
have rendered a submitted application incomplete. Nevertheless,
a party cannot claim that they have exhausted their
administrative remedies before even an attempt to file an
application has been made, absent truly extraordinary
circumstances, which are not present in this case.
¶10 The Mission did file a CUP application for the fifth
location. Although the Mission could have appealed the planning
commission’s decision to the Land Use Appeal Board, it failed to

2 The Mission also asserts that certain of the City’s
actions were outside the scope of its defined, statutory
authority, including issuing an administrative interpretation
letter without a request by the Mission or payment of the fee--
both of which are required under the relevant ordinance. Salt
Lake City, Utah, City Code §§ 21A.12.010, .030, .040 (2007); see
Walker Bank & Trust Co. v. Taylor, 390 P.2d 592, 595 (Utah 1964).
Issuing such a letter, however, is an action that falls within
the agency’s authority. That certain procedures may not have
been followed, or requirements met, does not mean that the action
falls without the agency’s authority. See Walker Bank, 390 P.2d
at 595 (describing a situation where the administrative officer
acted contrary to the “literal wording” of the statute).
No. 20060962 4
do so. By failing to file CUP applications for four of the
sites, and by not appealing the adverse administrative decision
regarding the fifth location, the Mission failed to exhaust the
available administrative remedies.
¶11 We have previously noted a number of exceptions to the
exhaustion requirement “in unusual circumstances.” Nebeker v.
Utah State Tax Comm’n, 2001 UT 74, ¶ 14, 34 P.3d 180. Exhaustion
is not required where (1) there is irreparable injury, see
Patterson, 2003 UT 7, ¶ 20; (2) there is a likelihood of
oppression or injustice, see Nebeker, 2001 UT 74, ¶ 14; (3)
exhaustion would serve no purpose, or is futile, see id., see
also Patterson, 2003 UT 7, ¶ 20; or (4) an administrative agency
or officer has acted outside of the scope of its defined,
statutory authority, see Walker Bank & Trust Co. v. Taylor, 390
P.2d 592, 595 (Utah 1964).
¶12 The Mission argues that the City’s actions have caused
it irreparable injury by restricting its constitutional right to
the free exercise of religion. The Mission further argues that
it should not be required to exhaust its administrative remedies
because the City’s actions have been oppressive and unjust, and
because its past experience has shown that taking further
administrative steps would be futile.2 The Mission has failed to
establish, however, that any of these exceptions apply here.
¶13 In Patterson, this court stated:
[The Pattersons] have argued that they would
suffer irreparable harm if required to
exhaust administrative remedies, and that the
exhaustion process would be futile. In
support thereof, Pattersons offer only the
cursory assertion that City officials are
hostile to their rights and that they have

3 Additionally, we note particularly that the fact that an
adverse zoning decision affects a party’s religious practice does
not itself constitute an irreparable injury.
5 No. 20060962
clearly pleaded sufficient facts indicating
irreparable harm and the futility of any
future attempts [to pursue administrative
remedies]. We decline the apparent
invitation to peruse Pattersons’ lengthy list
of allegations in search of specific facts
supporting their claims of irreparable harm
and futility. We note only that allegations
of unfairness in the day-to-day relationship
between Pattersons and City staff do not
support a claim that the entire
administrative appeals process is inoperative
or unavailable.
Patterson, 2003 UT 7, ¶ 20 (internal quotation marks omitted).
The Mission has not shown that the City’s administrative appeals
process is inoperative. Moreover, it has not shown that any of
the exceptions to the exhaustion requirement apply. Instead, the
Mission has asserted that certain minor regulations and “informal
standard practices” were not followed. Such a showing may, on
its merits, constitute a valid claim, but is insufficient to show
that the irreparable harm,3 oppression, or futility exceptions
apply. Accordingly, the district court was correct in dismissing
the state constitutional claims because the exhaustion
requirement had not been met.
II. RIPENESS
¶14 The exhaustion requirement does not apply to claims
asserted under the federal constitution. Patterson, 2003 UT 7,
¶ 18. Federally based claims must be ripe, however, in order
to be justiciable under the case or controversy requirement of
Article III of the federal constitution. Anderson v. Green, 513
U.S. 557, 559 (1995) (“[N]o justiciable controversy is before us,
because the case in its current posture is not ripe.”); see U.S.
Const. art. III, § 2. The United States Supreme Court has stated
that one of the purposes of the ripeness requirement is “to
protect [administrative] agencies from judicial interference
until an administrative decision has been formalized and its
effects felt in a concrete way by the challenging parties.”
Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967).
¶15 “[T]he Supreme Court has developed specific ripeness
requirements applicable to land use disputes.” Murphy v. New
Milford Zoning Comm’n, 402 F.3d 342, 347 (2d Cir. 2005). Our

No. 20060962 6
court of appeals has correctly acknowledged these requirements.
Arnell v. Salt Lake County Bd. of Adjustment, 2005 UT App 165,
¶ 19, 112 P.3d 1214 (“‘As a general rule, until these ordinary
processes have been followed the extent of the restriction on
property is not known . . . .’” (quoting Palazzolo v. Rhode
Island, 533 U.S. 606, 621 (2001))).
¶16 In another free exercise claim involving land use
decisions, the Second Circuit Court of Appeals noted that the
U.S. Supreme Court has held that a developer “was required to
obtain a final, definitive position . . . from the entity charged
with implementing the zoning regulations.” Murphy, 402 F.3d at
348. The Murphy court noted four considerations which supported
its decision to require a “final, definitive” administrative
decision before deciding the case on its merits:
First, . . . requiring a claimant to obtain a
final decision from a local land use
authority aids in the development of a full
record. Second, and relatedly, only if a
property owner has exhausted the
[administrative] process will a court know
precisely how a regulation will be applied to
a particular parcel. Third, a [favorable
decision] might provide the relief the
property owner seeks without requiring
judicial entanglement in constitutional
disputes. . . . Finally, . . . federalism
principles also buttress the finality
requirement. Requiring a property owner to
obtain a final, definitive position from
zoning authorities evinces the judiciary's
appreciation that land use disputes are
uniquely matters of local concern more aptly
suited for local resolution.
Id. (citations omitted). We agree with the reasoning of the
Second Circuit. As noted above, the Mission has failed to obtain
a final decision on any of the five locations at issue.
Additionally, it has offered no compelling reason why obtaining
such a decision would be unfair or unreasonable. Its claims
under the federal constitution are therefore not ripe, and the
district court was correct to dismiss them.
CONCLUSION

7 No. 20060962
¶17 The Mission failed to exhaust its administrative
remedies, and has not shown that any of the exceptions to the
exhaustion requirement are applicable. The state constitutional
claims were therefore properly dismissed. The Mission’s claims
based upon the federal constitution are not ripe. Those claims,
therefore, were also properly dismissed. Affirmed.
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¶18 Chief Justice Durham, Justice Durrant, Justice Parrish,
and Justice Nehring concur in Justice Wilkins’ opinion.