Olsen v. Park City Municipal Corporation

2016 UT App 106
THE UTAH COURT OF APPEALS
DAVID O LSEN , R OSEMARY O LSEN , AND R ICK M ARGOLIS,
Appellants,
v.
PARK C ITY M UNICIPAL C ORPORATION AND
VALLEY OF LOVE LLC,
Appellees.
Memorandum Decision
No. 20141193-CA
Filed May 19, 2016
Third District Court, Silver Summit Department
The Honorable Todd M. Shaughnessy
No. 110500786
Bruce R. Baird, Attorney for Appellants
Mark Harrington and Polly Samuels McLean,
Attorneys for Appellee Park City
Municipal Corporation
Eric P. Lee and Justin J. Keys, Attorneys for Appellee
Valley of Love LLC
S ENIOR JUDGE R USSELL W. BENCH authored this Memorandum
Decision, in which J UDGES GREGORY K. O RME and S TEPHEN L.
R OTH concurred.1
BENCH, Senior Judge:
¶1 	David 	Olsen, 	Rosemary 	Olsen, 	and 	Rick 	Margolis
(collectively, Appellants) challenge the district court’s grant of
summary judgment in favor of Park City Municipal Corporation
1. Senior Judge Russell W. Bench sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(6).

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20141193-CA 	2 	2016 UT App 106
(Park City) and Valley of Love LLC (collectively, Appellees). We
affirm.
¶2 	Valley 	of 	Love 	owns 	three 	adjacent 	parcels 	of 	real
property on Empire Avenue in Park City, Utah. The two smaller
parcels, consisting of 2,221 and 1,676 square feet, border Empire
Avenue. The large parcel, consisting of 8,985 square feet, is
landlocked behind the two small parcels. The parcels are located
in a recreation commercial zone, which allows developments to
have a maximum density ratio of 1.0.2 See Park City, Utah, Land
Mgmt. 	Code 	§ 	15-2.16-3(B), 	http://www.parkcity.org/home/
showdocument?id=220 [https://perma.cc/55MV-2R65]. However,
setback requirements made the two smaller parcels unbuildable
on their own.
¶3 	In 2009, Valley of Love sought approval of a proposed
ordinance to combine the three parcels, which had not yet been
subdivided3 for development, into a single platted lot of record.
2. A building has a density ratio of 1.0 if the total square footage
of the building is equal to the total square footage of the lot.
3. Although the word “subdivision” most commonly refers to a
division 	rather 	than 	an 	aggregation 	of 	lots, 	see 	Subdivision,
Merriam-Webster.com, 	http://www.merriam-webster.com/
dictionary/subdivision [https://perma.cc/B9CH-H3RP], the Park
City Land Management Code defines a subdivision as “[a]ny
land, vacant or improved, which is divided or proposed to be
divided or combined into one (1) or more Lots, Parcels, Site, Units,
plots, 	or 	interests 	for 	the 	purpose 	of 	offer, 	sale, 	lease 	or
Development,” Park City, Utah, Land Mgmt. Code § 15-15-1.266,
http://www.parkcity.org/home/showdocument?id=198 	[https://
perma.cc/D8ZJ-GG7Q] (emphasis added). Thus, for purposes of
our discussion, we use the word “subdivision” and its variants
to refer to the combination of the three parcels in this case into a
single lot.

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20141193-CA 	3 	2016 UT App 106
Park City approved Valley of Love’s proposal and enacted
Ordinance 10-08, subdividing the three parcels into a single lot.4
Valley 	of 	Love 	then 	sought 	and 	obtained 	approval 	of 	a
conditional use permit allowing it to build a multi-unit dwelling
on the lot.5
¶4 	Appellants, 	who 	own 	property 	near 	the 	parcels,
challenged Ordinance 10-08 in district court, asserting that Park
City 	violated 	various 	provisions 	of 	the 	Park 	City 	Land
Management 	Code 	(LMC) 	by 	adopting 	the 	ordinance. 	The
4. Appellants represent Ordinance 10-08 as a lot-line adjustment,
but because the parcels had never been subdivided into lots
prior to the enactment of Ordinance 10-08, Park City’s action is
more properly termed a subdivision. Compare Park City, Utah,
Land 	Mgmt. 	Code 	§ 	15-7.1-3(D), 	http://www.parkcity.org/
home/showdocument?id=208 	[https://perma.cc/YT7C-E8MX]
(indicating that a lot-line adjustment involves “[t]he relocation of
the Property boundary line between two adjoining Lots”), with
id. § 15-15-1.266, http://www.parkcity.org/home/showdocument?
id=198 [https://perma.cc/D8ZJ-GG7Q] (defining a subdivision as
“[a]ny land, vacant or improved, which is divided or proposed
to be divided or combined into one (1) or more Lots, Parcels, Site,
Units, plots, or interests for the purpose of offer, sale, lease or
Development” (emphasis added)). See generally id. § 15-15-1.154
(defining a lot as “[a] unit of land described in a recorded
Subdivision Plat”).
5. Appellants 	challenged 	Park 	City’s 	approval 	of 	Valley 	of
Love’s conditional use permit in a separate case. The district
court granted summary judgment in favor of Appellees in that
case as well, but Appellants did not appeal. Therefore, to the
extent that Appellants’ arguments appear to challenge Park
City’s approval of the conditional use permit, we do not address
them.

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20141193-CA 	4 	2016 UT App 106
parties filed cross-motions for summary judgment. The district
court determined that Ordinance 10-08 did not violate the LMC
and granted Appellees’ motion for summary judgment.
¶5 	Appellants 	assert 	that 	the 	district 	court 	erred 	in
concluding that Park City’s adoption of Ordinance 10-08 did not
conflict with the LMC, and they therefore request that we
reverse the district court’s summary judgment ruling. We review
the district court’s ruling on summary judgment for correctness.
See Springville Citizens for a Better Cmty. v. City of Springville, 1999
UT 25, ¶ 22, 979 P.2d 332.
¶6 	“A municipality’s land use decisions are entitled to a
great deal of deference.” Id. Thus, we reverse such decisions only
if they are “arbitrary, capricious, or illegal.” Id. ¶ 23. Appellants
argue that Ordinance 10-08 violates LMC sections 15-7-5 and 15-
7-2 and the Park City Planning Department’s “General Plan” and
that it is therefore illegal.6
¶7 	Appellants 	first 	argue 	that 	Ordinance 	10-08 	violates
section 15-7-5(B)(1), which provides that the LMC’s regulations
regarding subdivisions
are not intended to interfere with, abrogate, or
annul 	any 	other 	ordinance, 	rule 	or 	regulation,
statute, 	or 	other 	provision 	of 	law. 	Where 	any
provision of these regulations imposes restriction
different 	from 	those 	imposed 	by 	any 	other
provision 	of 	these 	regulations 	or 	any 	other
ordinance, rule or regulation, or other provision of
6. Appellees argue that ordinances cannot be rendered illegal
based on conflicts with general purpose statements such as those
contained in section 15-7-2 and the General Plan. For purposes of
our analysis, we assume, without deciding, that they can.

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20141193-CA 	5 	2016 UT App 106
law, whichever provisions are more restrictive or
impose higher standards shall control.
Park City, Utah, Land Mgmt. Code § 15-7-5(B)(1), http://www.
parkcity.org/home/showdocument?id=207 	[https://perma.cc/
XQ5D-E9XM]. Appellants argue that Ordinance 10-08 annulled
the 	effects 	of 	the 	building 	ratio 	and 	setback 	requirements
applicable 	in 	the 	recreation 	commercial 	zone 	(the 	lot
requirements), see id. § 15-2.16-3, http://www.parkcity.org/home/
showdocument?id=220 [https://perma.cc/55MV-2R65], because it
subdivided the parcels into a single lot and thereby increased
their 	total 	buildable 	square 	footage, 	which 	the 	setback
requirements previously limited.
¶8 	Appellants 	argue 	that 	because 	setback 	requirements
would have made the front two parcels unbuildable had they
been subdivided into individual lots, the lot requirements had
the effect of forever limiting the total buildable square footage on
the three parcels to the amount allowed on the large parcel—
8,985 square feet. They assert that the total could not be altered
even if the parcels were ultimately subdivided into a single lot.
Thus, 	because 	Ordinance 	10-08 	effectively 	increased 	the
buildable square footage of the parcels to 12,882 square feet—an
amount 	equal 	to 	the 	total 	square 	footage 	of 	the 	parcels—
Appellants argue that it conflicted with the lot requirements as
applicable prior to the subdivision and thereby violated section
15-7-5(B)(1).
¶9 	Appellants refer us to no authority suggesting that the
buildable square footage of property must forever be defined by
what would have been allowed on an individual parcel of
property if it were subdivided as an individual lot. The setback
requirements only indirectly affect the buildable square footage
on a lot due to the impossibility of building a structure on a
narrow lot while complying with the setback requirements;
those requirements do not actually alter the density allowance

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for the lot. Furthermore, the lot requirements apply to lots, id.
§ 15-2.16-3, and the three parcels were not lots as defined by the
LMC until they were subdivided, id. § 15-15-1.154, http://www.
parkcity.org/home/showdocument?id=198 	[https://perma.cc/
D8ZJ-GG7Q] (defining a lot as “[a] unit of land described in a
recorded Subdivision Plat”). Indeed, no structure of any kind
could have been built on the parcels until they were subdivided.
Id. 	§ 	15-1-9, 	http://www.parkcity.org/home/showdocument?
id=7419 [https://perma.cc/84MZ-FYBS] (instructing the Planning
Department, in reviewing an application for a building permit,
to “determine whether the proposal . . . respects Lot Lines of a
legally subdivided Lot”). Thus, the lot requirements did not
come into operation with respect to the parcels until after they
were subdivided into a lot, and there is no possibility that
Ordinance 10-08 could have “interfere[d] with, abrogate[d], or
annul[led]” the lot requirements for the recreation commercial
zone. 	See 	id. 	§ 	15-7-5(B)(1), 	http://www.parkcity.org/home/
showdocument?id=207 [https://perma.cc/XQ5D-E9XM].
¶10 	Appellants next assert that Ordinance 10-08 violates two
of the stated purposes of the subdivision provisions of the LMC,
namely, 	“to 	prevent 	overcrowding 	of 	the 	land 	and 	undue
congestion of population” and “[t]o provide the most beneficial
relationship between the Uses of land and Buildings and the
circulation 	of 	traffic, 	throughout 	the 	municipality, 	having
particular regard to the avoidance of congestion in the Streets
and highways.” Id. § 15-7-2(C), (G). Appellants argue that the
increase in the potential buildable square footage of the three
parcels created by Ordinance 10-08 violated the purposes of the
LMC to prevent overcrowding and allow circulation of traffic.
¶11 	We agree with the district court that Ordinance 10-08 is
consistent with the purposes of the LMC. The fact that the
setback requirements might have resulted in an overall lower
density if the parcels had been subdivided differently does not
change the fact that the LMC allows for a 1.0 density ratio. Thus,

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in enacting the LMC, Park City had previously determined that
1.0 was an appropriate density for the area. Further, the fact that
zoning regulations permitted a structure of up to 12,882 square
feet to be built on the lot does not mean that such a building
would 	necessarily 	be 	built 	or 	that 	it 	would 	result 	in
overcrowding 	or 	traffic 	congestion. 	Had 	Valley 	of 	Love
employed one of the smaller allowed uses on the lot, such as a
single 	family 	home 	or 	a 	duplex, 	the 	overcrowding 	and
congestion 	Appellants 	are 	concerned 	with 	could 	not 	have
materialized. 	See 	id. 	§ 	15-2.16-2(A), 	http://www.parkcity.org/
home/showdocument?id=220 	[https://perma.cc/55MV-2R65]. 	In
order to build the type of multi-unit dwelling that Valley of
Love ultimately sought to build, it had to obtain a conditional
use 	permit. 	Id. 	§ 	15-1-10, 	http://www.parkcity.org/home/
showdocument?id=7419 [https://perma.cc/84MZ-FYBS]; id. § 15-
2.16-2(B). If Valley of Love’s multi-unit dwelling, once proposed,
posed a potential overcrowding or traffic problem, then that
could be addressed—and indeed, was addressed—in the process
of approving the conditional use permit. Because Appellants
have not appealed the district court’s summary judgment ruling
regarding the conditional use permit, we do not address this
argument further. See supra note 5.
¶12 	Finally, Appellants argue that Ordinance 10-08 conflicts
with the “General Plan”—Park City’s “long range policy plan”
intended to “guide future [LMC] and zoning decisions.” See [1
Goals, Objectives, Strategies] Park City, Utah, General Plan 8
(2014), 	http://www.parkcity.org/home/showdocument?id=12385
[https://perma.cc/HB3N-RZT8]. Specifically, the General Plan in
place at the time Ordinance 10-08 was approved provided,
The area at the base of the Park City Mountain
Resort is currently zoned Recreation Commercial.
While development associated with the ski area
itself is (and will be) very dense, the [Recreation
Commercial] 	area 	to 	the 	east 	has 	served 	as 	a

Olsen v. Park City Municipal Corporation
20141193-CA 	8 	2016 UT App 106
transition zone to lower densities. The entire area is
currently zoned Recreation Commercial. To better
address 	future 	development 	in 	the 	area, 	the
following objectives are recommended:
Examine 	and 	make 	modifications 	to 	the
Recreation Commercial zone to ensure that new
structures to the east of Empire Avenue provide
skier bed base, while allowing for a transition of
scale to Park Avenue. Eliminate [the] option for
commercial uses and emphasize that commercial
uses occur at the ski resort base only.
Specify 	density 	requirements 	for 	the
[recreation 	commercial] 	zone 	that 	more 	closely
match what can actually be built on the parcels.
Refine 	design 	guidelines 	for 	the 	area 	to
provide 	the 	necessary 	transition 	between 	the
historic area and the resort area.
Appellants assert that because the subdivided lot is on the east
side of Empire Avenue, Ordinance 10-08 violated the General
Plan by granting Valley of Love “the right to develop the
property 	literally 	to 	the 	maximum 	scale 	allowed 	in 	the
[recreation commercial] zone.” (Emphasis omitted.) Based on the
General Plan, they argue, structures built on property to the east
of Empire Avenue must be smaller than those allowed to the
west of Empire Avenue in order to accomplish “the transitioning
in scale to Park Avenue.” (Emphasis omitted.)
¶13 	Accepting, for purposes of our analysis, that Appellants’
interpretation 	of 	the 	General 	Plan 	is 	correct 	and 	that 	an
ordinance violating the General Plan would be illegal, we are not
convinced that Ordinance 10-08 violates the General Plan. First,
Ordinance 10-08 does not say anything about the buildable
square footage of the lot; it merely creates the lot and concludes
that it is “compatible with the zone and other developments in
the area.” It is the LMC’s lot requirements that ultimately define

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20141193-CA 	9 	2016 UT App 106
the 	buildable 	square 	footage 	of 	the 	lot, 	based 	on 	density
allowances for the zone. Second, to the extent that Appellants
argue that permitting Valley of Love to build its proposed multi-
unit dwelling on the lot violated the General Plan, that argument
is not before us, as it concerns the grant of the conditional use
permit, an issue that was not appealed.
¶14 	Because we determine that Park City did not violate any
provision of the LMC or the General Plan in enacting Ordinance
10-08, we conclude that the ordinance is not illegal. Accordingly,
we affirm the district court’s grant of summary judgment in
favor of Appellees.