Green v Brown v Board of Adjustment

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2014 UT App 155

THE UTAH COURT OF APPEALS

TROY GREEN AND VICTORIA GREEN,
Plaintiffs and Appellees,
V0.

CHRISTINE BROWN,
Defendant, Third-party Plaintiff, and Appellant,
v.

WEBER COUNTY AND WEBER COUNTY BOARD OF ADJUSTMENT,

Third-party Defendants and Appellees.

Opinion
No. 20130247-CA
Filed July 3, 2014

Second District Court, Ogden Department
The Honorable Michael D. Lyon
No. 100907978

Bruce R. Baird, Attorney for Appellant

Christopher F. Allred, Attorney for Appellees
Weber County and Weber County Board
of Adjustment

Zane S. Froerer, Attorney for Appellees
Troy Green and Victoria Green

JUDGE JOHN A. PEARCE authored this Opinion, in which JUDGES

GREGORY K. ORME and MICHELE M. CHRISTIANSEN concurred.

PEARCE, Judge:

{1

Weber County zoning ordinances require a_ party

agerieved by a land use decision to file an appeal with the Board
of Adjustment within fifteen days. Christine Brown challenges

Green v. Brown
20130247-CA 2 2014 UT App 155
the Board’s application of that time bar to her appeal. The
district court concluded that the Board had correctly determined
that Brown’s appeal was untimely. We affirm.
BACKGROUND
¶2 In 1974, the Middle Fork Ranches Subdivision Plat was
recorded. The plat depicts nineteen lots, an east–west road, and
two cul-de-sacs. The road forms the southern border of Lots 7
and 8. Lot 7 lies between Lot 8 and one of the cul-de-sacs. The
plat shows a right-of-way connecting Lot 8 to the cul-de-sac
across the northern edge of Lot 7, with the notation ‚15' R.O.W.
for Lot 8.‛ For convenience, we refer to the right-of-way as the
ROW.
¶3 Brown purchased Lot 7 in 1975. The Greens purchased
Lot 8 on March 4, 2010. On March 11, 2010, the Greens obtained
a building permit, titled ‚Land Use Permit,‛ for the construction
of a house on Lot 8. The Weber County city planner who issued
the permit noted on it that ‚*a]ccess for this lot 8 is through a
ROW on lot 7.‛ The Greens designed their house to incorporate
driveway access across Lot 7 and began building the house no
later than July 2010. Brown and the Greens engaged in
negotiations over the exact placement of utility lines near or
within the ROW during July, August, and September of 2010. On
August 2, 2010, Brown received an email from the Greens,
stating that they intended to use the full width of the ROW as a
driveway.
¶4 On September 24, 2010, Brown requested and received a
copy of the permit. On October 7, 2010, Brown sent a letter to the
Weber County Planning Director asking him to ‚investigate
regarding the permit and review process for the land use permit
that was issued to Troy and Victoria Green.‛ Brown’s letter
ended with several questions for the Planning Director: ‚How
did this permit get issued? Will it be revoked? If not, why?‛

Green v. Brown
20130247-CA 3 2014 UT App 155
¶5 The Planning Director replied on October 27, 2010,
explaining that the permit had been issued appropriately. He
noted that the planning division had relied on the plat, ‚which
was approved and recorded in 1974.‛ He further noted that no
appeal from the issuance of the permit had been filed. On
November 9, 2010, Brown filed an appeal with the Weber
County Board of Adjustment.
¶6 The Board denied Brown’s appeal. It determined that the
building permit was the land use decision that had started the
clock ticking on Brown’s time to appeal. It also determined that
the Planning Director’s reply letter did not constitute a separate
appealable land use decision. The Board concluded that Brown’s
appeal, which she filed forty-five days after she received a copy
of the building permit, was untimely. The Board thus did not
reach the merits of Brown’s appeal.
¶7 Brown then filed a cross-complaint in existing Green–
Brown litigation in the district court, naming the Board as a
third-party defendant. She argued that her appeal to the Board
had been timely and that she was entitled to judicial review of
the Board’s refusal to hear her appeal. The parties eventually
brought cross motions on the issue. After a hearing, the district
court found that the permit was the relevant land use decision;
that Brown had received actual notice of the permit no later than
September 24, 2010; that the Planning Director’s reply letter was
not a separate land use decision; and that Brown’s appeal to the
Board was untimely. The district court dismissed Brown’s cross-
complaint with prejudice and certified the dismissal as a final
judgment under rule 54(b) of the Utah Rules of Civil Procedure.
Brown appeals that dismissal.
ISSUES AND STANDARDS OF REVIEW
¶8 Brown challenges the district court’s dismissal of her
cross-complaint seeking review of the Board’s determination
that her appeal was untimely. ‚When a district court reviews an

Green v. Brown
20130247-CA 4 2014 UT App 155
order of a local land use authority and we exercise appellate
review of the district court’s judgment, we act as if we were
reviewing the land use authority’s decision directly, and we
afford no deference to the district court’s decision.‛ Fox v. Park
City, 2008 UT 85, ¶ 11, 200 P.3d 182. ‚*O+ur review is limited to
whether a land use authority’s decision is arbitrary, capricious,
or illegal.‛ Id. (citation and internal quotation marks omitted).
¶9 Brown first contends that the permit was invalid because
it was issued by a city planner, rather than the Board itself. She
argues that because no valid permit was ever issued, the time
limit for filing an appeal never began to run and the Board thus
erred in determining that the time limit barred her appeal. A
challenge to the validity of a land use permit disputes the
legality of the land use authority’s procedure in issuing that
permit. We therefore apply a correctness standard of review, but
‚‘also afford some level of non-binding deference to the
interpretation advanced by’ the land use authority.‛ See id.
(quoting Carrier v. Salt Lake County, 2004 UT 98, ¶ 28, 104 P.3d
1208).
¶10 Brown also contends that the Board erred in determining
that the Planning Director’s reply letter was not an appealable
land use decision. Insofar as this is an assertion that the Board’s
determination was arbitrary or capricious, we apply a
substantial evidence standard. Id. To the extent that Brown
asserts that the Board’s determination was contrary to the law,
we review that determination for correctness. Id.
ANALYSIS
¶11 The County Land Use, Development, and Management
Act (CLUDMA) sets forth minimum standards for county land
use ordinances. See Utah Code Ann. § 17-27a-102 (LexisNexis
2009). CLUDMA requires that each county’s ordinances provide
for a quasi-judicial appeal authority. Id. § 17-27a-701. It also
requires each county to provide at least ten days to appeal a

Green v. Brown
20130247-CA 5 2014 UT App 155
written land use decision. Id. § 17-27a-704. Weber County’s
ordinances comply with these requirements by allowing fifteen
days to file an appeal with the Weber County Board of
Adjustment. Weber County, Utah, Zoning Ordinances § 29-3
(2007). These brief limitation periods are designed to promote
‚the expeditious and orderly development of a community‛ by
ensuring that disputes are quickly resolved. See Foutz v. City of
South Jordan, 2004 UT 75, ¶ 16, 100 P.3d 1171 (citation and
internal quotation marks omitted). However, to help ensure that
the right to appeal is meaningful, our supreme court has
adopted a general rule that ‚the appeal period begins when an
affected party receives actual or constructive notice that the
building permit has been issued.‛ Fox, 2008 UT 85, ¶ 30.
¶12 Here, the parties do not dispute the district court’s finding
that Brown had actual notice of the land use permit’s issuance no
later than September 24, 2010, when she received a copy of the
permit from the county’s planning division. Nor do they dispute
that Brown’s appeal was dated November 9, 2010. The burden
rests on Brown to show that her appeal was not time-barred.
¶13 Brown raises two arguments. First, she argues that
because the planner who issued the building permit lacked the
authority to do so, the issuance of the permit could not have
started the appeal period. Second, she argues that the Planning
Director’s October 27, 2010 reply letter constituted a separate
land use decision and that her appeal was timely because it was
brought within fifteen days of that letter.
I. Validity of the Land Use Permit
¶14 Brown first contends that ‚*t+he time for appeal does not
even begin to run until the appropriate land use authority has
made a written determination adversely affecting the appellant‛
and that the appropriate land use authority did not decide the
question concerning the Greens’ use of the ROW. She cites a
Weber County zoning ordinance, which provides that access to a
lot in a subdivision ‚shall be across the front lot line abutting a

Green v. Brown
20130247-CA 6 2014 UT App 155
public or private street approved by the county or as otherwise
approved by the Board of Adjustment.‛ Weber County Zoning
Ordinances § 24-2A. She characterizes the notation on the permit
that ‚*a+ccess for this lot 8 is through a ROW on lot 7‛ as a
variance to that ordinance. She argues that only the Board, and
not a planning department employee, could approve such a
variance. On this basis, she asserts that the permit issued by the
city planner was, ‚effectively, void ab initio as being, effectively,
ultra vires.‛ In short, in Brown’s view, no valid land use permit
was ever issued and thus the fifteen-day appeal window never
began to run.
¶15 Even if we were to accept Brown’s contention that the
planner lacked the authority to issue the Greens a building
permit that allowed them to use the ROW as a driveway, Brown
cites no case or statute to support the proposition that the fifteen-
day time limit for filing an appeal does not apply to a challenge
to a land use decision premised on an alleged lack of authority to
make that decision. Although it appears that there is no case
directly on point, the Utah Supreme Court addressed a
somewhat analogous contention in Gillmor v. Summit County,
2010 UT 69, 246 P.3d 102. In that case, Summit County argued
that its decision to deny Gillmor’s plat application was not
reviewable under CLUDMA because Gillmor’s application did
not comply with Summit County’s plan or code. Id. ¶ 21. In
essence, Summit County argued that review under CLUDMA
could only be triggered by a valid application for a land use
decision and that because Gillmor admitted she had never
submitted a compliant application, she could not seek review of
the county’s denial. Id. The supreme court rejected Summit
County’s argument, reasoning that ‚the noncompliance of
Gillmor’s applications does not render the County’s rejections
‘nondecisions’ and does not shield these rejections from judicial
review.‛ Id. The court further reasoned that ‚the noncompliance
of Gillmor’s applications relates solely to the question of whether
the County’s decisions were arbitrary, capricious or illegal—the
exact question a district court will consider on review.‛ Id.

Green v. Brown
20130247-CA 7 2014 UT App 155
¶16 Although Gillmor is not directly on point here, the Utah
Supreme Court’s logic is instructive. The planner’s decision to
issue a building permit allowing the ROW to be used as a
driveway is not rendered a ‚nondecision‛ by Brown’s argument
that the planner lacked the authority to issue the permit. Put
another way, Brown’s belief that the planner lacked the proper
authority to make that land use decision did not alter the reality
that a land use decision had been issued and that the decision,
properly issued or not, had adversely affected her property
interests. See Utah Code Ann. § 17-27a-701(2) (LexisNexis 2009)
(‚As a condition precedent to judicial review, each adversely
affected person shall timely and specifically challenge a land use
authority’s decision, in accordance with local ordinance.‛). If
Brown wanted relief from the adverse consequences of the
building permit, she needed to challenge it in the time and
manner required by the Weber County Zoning Ordinances. To
paraphrase the Gillmor court, the question of whether the
planning department possessed the authority to authorize use of
the ROW through a building permit was the exact question the
Board could have considered upon a timely appeal.
¶17 This result promotes the policies undergirding CLUDMA.
The Utah Supreme Court has recognized that a permit holder ‚is
entitled to know when the municipality’s decision to issue a
building permit will become final and no longer be subject to
review or reversal.‛ Fox v. Park City, 2008 UT 85, ¶ 32, 200 P.3d
182 (brackets, citation, and internal quotation marks omitted).
‚Knowing when the decision is final and no longer subject to
review allows the permit holder to rely on the building permit
and to feel secure in putting the land to the use granted him by
the permit.‛ Id. (citation and internal quotation marks omitted).
The Utah Supreme Court has also noted that CLUDMA’s
limitation period is designed to ‚assure the expeditious and
orderly development of a community.‛ Foutz v. City of South
Jordan, 2004 UT 75, ¶ 16, 100 P.3d 1171. Brown’s interpretation
would permit a challenge to the authority of a permit-issuing
official to be brought at any time, potentially even years after the
issuance of the offending permit. This reading of CLUDMA

Green v. Brown
20130247-CA 8 2014 UT App 155
would substantially undermine, if not annihilate, one of the
public policy goals that CLUDMA embodies: ‚to encourage the
quick resolution of disputes over land use decisions . . . .‛ Id.
¶ 15.
¶18 For these reasons, we conclude that the Weber County
Zoning Ordinance’s fifteen-day filing window applies to all
administrative appeals from land use decisions, regardless of
whether they challenge the substance of the decision or the
authority of the land use authority to make the decision. Because
Brown’s challenge to the validity of the permit was not raised
within that time period, it is untimely.
II. Separate Appealable Decision
¶19 Brown next contends that her appeal was timely because
it was brought not from the issuance of the permit but rather
from the Planning Director’s October 27, 2010 letter. She
characterizes that letter as ‚the first determination by [a] land
use authority . . . that § 24-2A would not be enforced.‛ She
maintains that it constituted an implicit refusal to enforce the
ordinance and that such a refusal is an appealable land use
decision. On this basis, Brown asserts that she ‚timely appealed
*the Planning Director’s+ interpretation and determination that
the County would not enforce the Zoning Ordinance.‛
¶20 Brown wrote to the Planning Director on October 7, 2010,
asking him to enforce certain Weber County zoning ordinances
that Brown believed were ‚blatantly ignored‛ and would
prevent the Greens from using the ROW as a driveway. Brown’s
letter concluded by asking the Planning Director, ‚How did this
permit get issued? Will it be revoked? If not, why?‛ The
Planning Director replied by letter on October 27, 2010,
explaining that the planning division had determined that the
ROW had existed since the recording of the 1974 plat and that
the permit had been issued in reliance on that determination.
Rather than explicitly responding to Brown’s request to revoke

Green v. Brown
20130247-CA 9 2014 UT App 155
the permit, the Planning Director instead noted only that Brown
had failed to file an appeal.
¶21 Brown argued that the October 27 letter was a land use
decision that she was entitled to appeal under CLUDMA. The
Board determined that the reply letter was ‚simply an
explanation of why the Planning Division felt the decision to
issue the land use permit was not in error.‛ The Board also
determined that the alleged refusal to enforce an ordinance was
not an appealable land use decision. Our review is limited to
considering whether the Board’s determination was arbitrary,
capricious, or illegal. Fox v. Park City, 2008 UT 85, ¶ 11, 200 P.3d
182.
¶22 A land use authority’s determination is arbitrary or
capricious only if it is unsupported by substantial record
evidence. Id. Here, Brown’s letter asked the Planning Director to
explain how the permit had been issued despite certain
ordinances. He did so by informing her that the permit had been
issued in reliance on the 1974 ‚approved and recorded
subdivision plat [that] showed the right-of-way in question and
was approved by the land-use-authority.‛ The tone of the reply
letter is explanatory, as befitting a response to Brown’s inquiry,
‚How did this permit get issued?‛ Moreover, the letter does not
purport to refuse to enforce the ordinances. The content of the
two letters provides substantial evidence to support the Board’s
determination that the reply letter was ‚simply an explanation‛
of a previous decision and not a separate land use decision. The
determination was therefore not arbitrary or capricious.
¶23 We next consider whether the Board’s determination that
the reply letter did not constitute a separate land use decision
was contrary to the law. See Fox, 2008 UT 85, ¶ 11. Brown asserts
that the Planning Director’s letter contained an implicit refusal to
enforce the ordinance and that the alleged refusal was an
appealable land use decision. The Utah Supreme Court
addressed a similar situation in Foutz v. City of South Jordan, 2004
UT 75, 100 P.3d 1171. The plaintiffs there argued that their action

Green v. Brown
20130247-CA 10 2014 UT App 155
was timely, despite being brought more than six months after
the expiration of a thirty-day limitations period, because the
defendant’s refusal to reverse its original land use decision was a
continuing violation. Id. ¶¶ 2–4, 25. The court noted that the
limitations period begins to run from the time that a decision is
rendered and not from the time of an alleged violation. Id. ¶ 25.
The court concluded that the plaintiffs’ ‚creative attempt to
characterize the city’s refusal to reverse its original land use
decision as a series of subsequent decisions cannot operate to
artificially lengthen the statutorily mandated time for
challenging the land use decision.‛ Id. Indeed, the court
reasoned that ‚[b]ecause virtually every challenge to a land use
decision could be alternatively characterized as an ‘enforcement’
action, allowing a challenge to a municipality’s land use decision
under the Enforcement section would nullify the very existence
of the exhaustion and timing requirements specified in the
Appeals section.‛ Id. ¶ 14.
¶24 Brown argues that Foutz is inapposite. She notes that the
plaintiffs in that case were attempting to challenge a properly
made land use decision after the appeal period had been
properly triggered. She distinguishes her situation by asserting
that the Greens’ permit was invalidly issued and that
accordingly ‚there never was . . . a triggering decision by the
land use authority.‛ However, as explained in Part I, while
Brown now claims that the land use authority lacked the power
to make the ‚triggering decision,‛ a triggering decision was
made, and Brown needed to have appealed that decision in a
timely fashion if she wished to challenge it.
¶25 Our case law dictates that an appeal period begins to run
from the date that the aggrieved party has actual or constructive
notice of a land use decision and is not tolled by a land use
authority’s continuing refusal to revoke that decision. See Foutz,
2004 UT 75, ¶ 25 (‚The limitations provision . . . runs from the
time the municipality renders a land use decision, not from the
time of an alleged violation.‛ (internal quotation marks
omitted)); see also Fox, 2008 UT 85, ¶ 30 (adopting ‚the rule that

Green v. Brown
20130247-CA 11 2014 UT App 155
the appeal period begins when an affected party receives actual
or constructive notice that the building permit has been issued‛).
Accordingly, the Board’s determination that the Planning
Director’s reply letter was not a separately appealable land use
decision is not contrary to the law. See Fox, 2008 UT 85, ¶ 11.1
CONCLUSION
¶26 Brown’s contention that the permit was invalid was not
raised in a timely appeal. Substantial evidence supports the
Board’s determination that the Planning Director’s reply letter
was only an explanation of the procedure underlying the
issuance of the land use permit. Furthermore, the Board’s
determination that the reply letter did not announce a new land
use decision was not arbitrary, capricious, or illegal. For these
reasons, we conclude that the district court did not err in
dismissing Brown’s cross-complaint.
1. Brown also argues that the permit did not inform her that ‚the
Greens would be allowed to utilize[] the ROW as a driveway
despite‛ the ordinances. ‚*A+ party must not only have notice
that a building permit has been issued, but must also have
knowledge of the facts that form the basis of the party’s objection
to the permit before the appeal period begins.‛ Fox v. Park City,
2008 UT 85, ¶ 28, 200 P.3d 182. It is true that the permit does not
mention the ordinances. But it explicitly stated, ‚Access for this
lot 8 is through a ROW on lot 7.‛ Moreover, when Brown
received the permit, she knew the essential facts forming the
basis of her objection. Specifically, she was aware that the Greens
intended to use the ROW across her property to access their own
property and that the Weber County planning division had
approved that course of action. Indeed, she requested a copy of
the permit only after engaging the Greens in protracted
negotiations over the use of the ROW and after receiving an
email from the Greens informing her that they would use the full
width of the ROW as a driveway.

Green v. Brown

(27 + Affirmed.

20130247-CA 12 2014 UT App 155