Hogs R Us v. Fairfield

2009 UT 21
207 P.3d 1221
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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Hogs R Us, a Utah corporation; 	No. 20070872
Scott C. McLachlan, an individual;
Utah Valley Turf Farms, L.C., a
Utah limited liability company;
Ault Farms, LLC, a Utah limited
liability company; Zane Dansie,
an individual; and Keith Jonsson,
an individual,
Plaintiffs and Appellants,
v.
F I L E D
Town of Fairfield,
Defendant and Appellee. 	April 14, 2009
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Fourth District, Provo Dep’t
The Honorable Lynn W. Davis
No. 050402661
Attorneys: 	Joseph C. Rust, Scott O. Mercer, Salt Lake City, for
appellants Hogs R Us, Scott C. McLachlan, Zane
Dansie, and Keith Jonsson
Mark H. Richards, Salt Lake City, for appellants Utah
Valley Turf Farms, L.C., and Ault Farms, LLC
Larry S. Jenkins, Salt Lake City, for appellee
Paul W. Mortensen, Salt Lake City, for amicus Utah
Shared Access Alliance
Steve C. Earl, Orem, Robert J. Moore, James L. Wilde,
Provo, for amici City of Orem, Utah County, and Provo
City
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PARRISH, Justice:

No. 20070872 	2
INTRODUCTION
¶1 	Appellants seek reversal of the district court’s
decision declining to issue an extraordinary writ compelling the
town of Fairfield to maintain a road located within the town.
Because the town does not have a clear legal duty to maintain its
roads, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 	Since its incorporation in late 2004, Fairfield, a
small agrarian town located in the south-central section of Cedar
Valley in western Utah County, has conducted limited maintenance
on the road known as 1600 North Street (the “Road”), which runs
through its town limits between State Road 73 and 16000 West.
Specifically, Fairfield has maintained only the portion of the
road located within the residential area of the town. 	The
parties do not dispute that the Road is a Class C road under the
Utah Transportation Code, meaning its maintenance is under
Fairfield’s jurisdiction. 	See Utah Code Ann. § 72-3-104.
¶3 	Appellants (the “Farmers”), individuals and businesses
engaged in farming operations immediately east of Fairfield, use
the Road as primary access to their land. 	Only one of the
Farmers owns property within Fairfield’s town limits. 	The
Farmers’ only alternative route to their land is rougher and
narrower than the Road and has sharp edges that result in
extensive tire damage. 	None of the Farmers find the alternative
route to be an acceptable way to access their properties.
¶4 	As a result of Fairfield’s failure to maintain the
Road, its condition has deteriorated significantly. 	Poor
conditions on the Road have at times forced the Farmers to take
the alternative route to their land, and vendors have refused to
continue delivery of supplies to one of the Farmers due to the
deterioration of the Road. 	Although the Farmers have offered to
contribute to the cost of repairing and maintaining the road,
particularly the section containing a dangerous S-turn, Fairfield
has declined their offers.
¶5 	In conjunction with a challenge to a municipal
ordinance limiting the weight of vehicles using the Road, the
Farmers sought extraordinary relief under Utah Rule Civil
Procedure 65B(d)(2)(B) compelling Fairfield to maintain the Road.
The district court denied relief because it found that, under
Utah Code section 10-8-8, Fairfield had total discretion with
regard to improvements and repairs. 	On appeal, the Farmers argue
that summary judgment should be reversed because Fairfield has a

3 	No. 20070872
clear duty to maintain the Road. 	They ask this court to issue an
extraordinary writ compelling Fairfield to fulfill this duty.
Fairfield argues that the Farmers do not have standing to request
extraordinary relief. 	Fairfield further argues that the district
court correctly denied extraordinary relief because the Farmers
did not satisfy the standard for issuing an extraordinary writ
and because the courts do not have the authority to mandate that
municipalities repair their roads.
STANDARD OF REVIEW
¶6 	While the decision to grant or deny extraordinary
relief is within the district court’s discretion, we review “the
legal reasoning of the court” for correctness. 	V-1 Oil Co. v.
Dept. of Envtl. Quality, 939 P.2d 1192, 1195 (Utah 1997).
ANALYSIS
I. 	THE FARMERS HAVE STANDING TO PETITION FOR EXTRAORDINARY
RELIEF UNDER UTAH RULE OF CIVIL PROCEDURE 65B
¶7 	For the first time on appeal, Fairfield argues that the
Farmers lack standing to bring an action for an extraordinary
writ under Utah Rule of Civil Procedure 65B. 	Specifically,
Fairfield alleges that the Farmers have no “‘distinct and
palpable injury that gives [them] a personal stake in the outcome
of the legal dispute.’” 	Terracor v. Utah Bd. of State Lands &
Forestry, 716 P.2d 796, 799 (Utah 1986) (quoting Jenkins v. Swan,
675 P.2d 1145, 1149 (Utah 1983)). 	“A petitioner for
extraordinary relief must have standing, just as any other
litigant must have.” 	Id. at 798. 	Because lack of standing is
jurisdictional, parties may raise it as an issue at any time in
the proceedings, including on appeal. 	Harris v. Springville
City, 712 P.2d 188, 190 (Utah 1986); see also Terracor, 716 P.2d
at 798 (“[T]his Court may address [standing] sua sponte.”).
¶8 	“[T]here are two means by which a party can establish
standing--the traditional test and an alternative test.” 	Utah
Chapter of the Sierra Club v. Utah Air Quality Bd., 2006 UT 74,
¶ 18, 148 P.3d 960. 	Under the traditional test, a party has
standing if it meets three requirements:
First, the party must assert that it has been
or will be “adversely affected by the
[challenged] actions.” 	Second, the party
must allege a causal relationship “between
the injury to the party, the [challenged]
actions and the relief requested.” 	Third,

No. 20070872 	4
the relief requested must be “substantially
likely to redress the injury claimed.”
Id. ¶ 19 (internal citations omitted) (alterations in original)
(quoting Jenkins, 675 P.2d at 1149-50). 	“Traditional standing
criteria require that the interests of the parties be adverse and
that the party seeking relief have a legally protectable interest
in the controversy.” 	State ex rel. H.J. v. State, 1999 UT App
238, ¶ 17, 986 P.2d 115 (internal quotation marks omitted).
¶9 	If a party does not satisfy the traditional test, the
court may nonetheless grant standing to an appropriate party if
the issues asserted are “of sufficient public importance to
balance the absence of the traditional standing criteria.”
Sierra Club, 2006 UT 74, ¶ 41. 	A party is appropriate if it
demonstrates “the interest necessary to effectively assist the
court in developing and reviewing all relevant legal and factual
questions and that the issues are unlikely to be raised if the
party is denied standing.” 	Id. ¶ 36 (internal quotation marks
omitted).
¶10 	Although Fairfield argues that the Farmers have not
established or alleged any facts showing that they suffered a
particularized injury directly resulting from the condition of
the Road, the record clearly contradicts this assertion. 	The
district court found that Fairfield’s failure to maintain the
road adversely affects the Farmers by forcing them to take an
alternate route, by damaging their vehicles, and by making
vendors unwilling to deliver goods to their farms. 	Further, the
alternative route was not acceptable to any of the Farmers.
Clearly, the Farmers have met all three prongs of the test.
First, they have been adversely affected by Fairfield’s failure
to act. 	Second, Fairfield’s failure to maintain the Road is the
cause of the Farmers’ injuries. 	And finally, an order requiring
Fairfield to maintain the Road would redress those injuries.
Fairfield emphasizes the prudential element to standing, but
there is no authority that allows the court to deny a plaintiff
the chance to be heard when it has met the above three elements.
Thus, we conclude that the Farmers have standing to seek
extraordinary relief to compel Fairfield to maintain its roads.
II. 	THE DISTRICT COURT PROPERLY DENIED THE FARMERS’ PETITION FOR
EXTRAORDINARY RELIEF BECAUSE IT HAD NO AUTHORITY TO COMPEL THE
TOWN TO MAINTAIN THE ROAD
¶11 	Under Utah Rule Civil Procedure 65B(d)(2)(B),
extraordinary relief may be granted “where an inferior court,
administrative agency, corporation or person has failed to

5 	No. 20070872
perform an act required by law as a duty of office, trust or
station.” 	Utah R. Civ. P. 65B(d)(2)(B). 	Though Rule 65B
abolished the “common law forms and pleadings for extraordinary
writs,” the remedies available through the use of those writs
continue to be available under Rule 65B. 	State v. Barrett, 2005
UT 88, ¶ 7 n.4, 127 P.3d 682. 	In particular, rule 65B(d) is the
equivalent of a common law petition for a writ of mandamus and
provides the equivalent remedy. 	Id. ¶¶ 7 n.4, 11. 	“The common
law writ of mandamus was designed to compel a person to perform a
legal duty incumbent on him by virtue of his office or as
required by law.” 	Renn v. Bd. of Pardons, 904 P.2d 677, 682
(Utah 1995). 	A citizen can seek extraordinary relief “to compel
an officer or town officials to perform a duty, a ministerial act
or an administrative act, about which it would have no
discretion,” or to compel officers or town officials to exercise
their discretion when they have refused to act. 	Rose v. Plymouth
Town, 173 P.2d 285, 286 (Utah 1946); see also Rice v. Taggart,
2004 UT App 215, ¶ 7, 95 P.3d 1169. 	Though a plaintiff may
request the district court to direct the exercise of
discretionary action, “the writ is not available to direct the
exercise of judgment or discretion in a particular way.” 	Rice,
2004 UT App 215, ¶ 7 (internal quotation marks omitted).
“[E]xtraordinary writs are available only when there is no
‘plain, speedy and adequate remedy’ at law.” 	Renn, 904 P.2d at
682 (quoting Utah R. Civ. P. 65B(a)). 	Extraordinary relief for a
failure to maintain a road will only lie if “refusal to act is
the result of a determination not to discharge a plain duty,
rather than a mistaken judgment as to the existence of the
necessity for acting.” 	52 Am. Jur. 2d Mandamus § 217.
¶12 	In order to obtain extraordinary relief under rule
65B(d), a petitioner must establish two things: 	(1) “a clear
legal right to the performance of the act demanded,” and (2) “a
plain duty of the officer, board, or other tribunal to perform as
demanded.” 	Garcia v. Jones, 510 P.2d 1099, 1100 (Utah 1973)
(internal quotation marks omitted). 	Even if a petitioner can
meet both prongs of the test, the court has the discretion to
deny extraordinary relief. 	Renn, 904 P.2d at 683. 	To determine
whether to grant relief, “a court must look to the nature of the
relief sought, the circumstances alleged in the petition, and the
purpose of the type of writ sought.” 	Barrett, 2005 UT 88, ¶ 11
(internal quotation marks omitted).
¶13 	At issue in this case is whether Fairfield has a plain
duty to maintain the roads within its jurisdiction. 	If so, then
those who travel the roads have a clear right to performance of
that duty. 	A duty underlying Rule 65B extraordinary relief can
be created by statute or found in the common law. 	State ex rel.

No. 20070872 	6
Skeen v. Ogden Rapid Transit Co., 112 P. 120, 124 (Utah 1910)
(holding that if common law duty is “clear and reasonably free
from doubt” then the court can coerce the performance of the duty
through mandamus).
¶14 	We first address whether any statute creates a clear
legal duty for Fairfield to maintain its roads. 	We then consider
whether the common law has established such a duty.
A. 	No Statute Gives Municipalities a Clear Legal Duty to
Maintain the Roads Located Within Their Boundaries
¶15 	Both Fairfield and the Farmers point to various
sections of the Utah Code as evidence of the existence or lack of
a municipal duty to maintain roads. 	“When interpreting statutes,
this court first looks to the plain language.” 	Barrett, 2005 UT
88, ¶ 29. 	We find that the plain language of the Utah Code
neither creates nor refutes an affirmative duty for
municipalities to maintain the streets located within their
boundaries.
¶16 	The Farmers argue that the duty to maintain roads is
found in Utah’s Transportation Code, located in title 72 of the
Utah Code. 	Utah Code section 72-3-104(4)-(5)(Supp. 2008) gives
“sole jurisdiction and control of the city streets within the
municipality” to the municipal governing body, and requires the
Department of Transportation to cooperate with that body in the
“construction and maintenance” of class C roads. 	The Farmers
argue that this language in the Transportation Code creates in
municipalities an implicit duty to maintain roads within their
jurisdiction. 	But the plain language of the statute says nothing
about the duty of municipalities. 	Rather, it only imposes a duty
on the Utah Department of Transportation to cooperate with
municipal governing bodies in maintaining and constructing roads.
The Farmers further cite the Transportation Code for definitions
of “maintenance” and “improvement project,” but these sections
merely define the terms as used in the statute; they do not by
themselves impose a municipal duty to maintain roads. 	Utah Code
Ann. § 72-6-109(c)-(d).
¶17 	Fairfield argues--and the district court agreed--that
Utah Code section 10-8-8 gives Fairfield sole discretion to “make
decisions regarding improvement and repairs” of municipal roads.
Section 10-8-8 provides, “A municipal legislative body may lay
out, establish, open, alter, widen, narrow, extend, grade, pave,
or otherwise improve streets, alleys, avenues, [and] boulevards
. . . and may vacate the same parts thereof, as provided in this
title.” 	Id. § 10-8-8 (2007). 	This statute clearly gives

7 	No. 20070872
Fairfield discretion with regard to road improvements and does
not directly address the town’s maintenance duties. 	However, the
fact that the town has the discretion to choose how to improve
and change its streets does not necessarily give it the
discretion to choose not to maintain them once they are open to
the public. 	In short, this section of the code is inconclusive
with respect to the question of whether Fairfield has a duty to
maintain its streets.
¶18 	Because the statutes cited by the parties neither
create nor refute the existence of a clear legal duty on the part
of Fairfield to maintain the Road, we consider whether the common
law creates such a duty.
B. 	The Common Law Does Not Establish That Fairfield Has a Clear
Legal Duty to Maintain Its Roads
¶19 	The Farmers argue that Fairfield has a clear common-law
duty to maintain the Road. 	They first argue that this duty
arises from tort principles. 	It is true that a vast number of
Utah cases have found that municipalities have a duty under tort
law to maintain their streets. 	See, e.g., Braithwaite v. West
Valley City Corp., 860 P.2d 336, 338 (Utah 1993) (“[A]
municipality has a duty to exercise ordinary care to keep streets
which it has opened for travel and which it has invited the
public to use in a reasonably safe condition for travel.”); Bowen
v. Riverton City, 656 P.2d 434, 437 (Utah 1982) (“The city has a
nondelagable duty to exercise due care in maintaining streets
within its corporate boundaries in a reasonably safe condition
for travel.”). 	However, the Farmers do not point to any
authority holding that a duty in tort gives rise to a
sufficiently clear legal duty to form the basis for extraordinary
relief. 	Though tort law imposes a duty on municipalities to
maintain reasonably safe roads, it does not thereby create a
right to performance absent tort injury and damages, neither of
which are alleged in this case.
¶20 	The Farmers also rely on case law from other
jurisdictions in which courts have granted extraordinary relief
based on a municipality’s duty to maintain its roads. 	But these
cases are entirely inapposite because, in each one, a statute
dictated the town’s clear legal duty to maintain the road at
issue. 	For instance, in Willoughby v. Whetstone Township Bd.,
1998 SD 68, 581 N.W.2d 165, the court issued extraordinary relief
mandating that a town repair a country road within its
boundaries. 	However, the town’s legal duty to maintain roads was
clearly spelled out in a statute, which provided that “‘[i]t
shall be the duty of the board of township supervisors to arrange

1 At oral argument, counsel for Fairfield asserted that
repairs have been made since the hearing before the district
court.
No. 20070872 	8
for the construction, repair, and maintenance of all secondary
roads within the township.’” 	Id. ¶ 8 (quoting S.D. Codified Laws
§ 31-13-1). 	Similarly, cases cited from Pennsylvania and Ohio
issued mandamus based on a town’s statutory duty to maintain its
roads. 	See Lank v. Hughes, 167 A.2d 268, 269-70 (Pa. 1961); Ross
v. Fox, 2003-Ohio-3513, ¶ 7.
¶21 	It is possible that Fairfield has a legal duty outside
tort law to ensure that roads within its jurisdiction are free
from obstructions that make them impassable. 	In Whitesides v.
Green, 44 P. 1032 (Utah 1896), the court stated in dicta that
municipalities must “keep . . . road[s] open and in suitable
repair, and, if obstructions be placed thereon, it is their duty
to remove the same, and care for the rights of the public.” 	44
P. at 1033. 	Moreover, “[w]here there is entire neglect to work
the roads, and the same are out of repair,” mandamus may be an
appropriate remedy. 	Klein v. People, 31 Ill. App. 302, 305
(1888) (emphases added). 	More recently, an Illinois appellate
court found a common-law duty to remove obstructions from a
municipal roadway. 	See Jamison v. City of Zion, 834 N.E.2d 499
(Ill. App. Ct. 2005). 	In Jamison, a citizen sued for a writ of
mandamus to compel a municipality to remove a lilac bush that
obstructed his view of and access to the road. 	The trial court
dismissed the citizen’s complaint, but the court of appeals
reversed, finding that the common law of Illinois imposes a duty
on municipalities to remove obstructions from the road.
¶22 	At some point, the Road at issue in this case may
become impassable to the extent necessary to invoke a common-law
duty to remove obstructions. 	However, the district court’s
findings make clear that the Road has not yet reached that level
of disrepair. 	The Farmers complain of disrepair, but everything
in the record indicates that they still have access to their
property via the Road. 	Even if Fairfield has not repaired the
section of the Road that leads out of town since the town’s
incorporation in 2004, until the Road becomes impassable,
Fairfield has no clear legal duty to maintain it. 1
¶23 	In the absence of a clear legal duty, a court cannot
mandate that a town perform maintenance on roads within its
jurisdiction. 	The district court therefore properly ruled that
it did not have the authority to mandate that Fairfield maintain
the Road. 	Because Fairfield has no clear legal duty to maintain
its roads, the Farmers have no clear right to performance of the

9 	No. 20070872
Road maintenance. 	Therefore, the Farmers are not entitled to
extraordinary relief, and the district court did not abuse its
discretion in refusing to grant it.
III. 	WE NEED NOT ADDRESS WHETHER FAIRFIELD HAS THE DISCRETION TO
REJECT FUNDS THE FARMERS OFFERED TO PAY FOR ROAD REPAIR
¶24 	In further support of their request for extraordinary
relief, the Farmers point out that they have volunteered to pay
for certain repairs to the road. 	Because we find that Fairfield
has no clear legal duty to maintain its roads, we need not
address whether the court can compel the town to accept funds in
order to complete repairs.
CONCLUSION
¶25 	Although the Farmers have standing to seek
extraordinary relief, Fairfield does not have a clear legal duty
to maintain its roads so long as the roads are passable. 	Thus,
the Farmers are not entitled to extraordinary relief. 	We affirm
the decision of the district court.
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¶26 	Chief Justice Durham, Associate Chief Justice Durrant,
Justice Wilkins, and Justice Nehring concur with Justice
Parrish’s opinion.