Spanish Fork City v. Evans Grader and Paving

1. Evans also appeals the district court’s denial of Evans’s motion
to dismiss for failure to state a claim and its motion to reconsider.
However, in light of our conclusion that the district court properly
granted summary judgment, we also necessarily conclude that
these motions were properly denied.
2014 UT App 178
_________________________________________________________
THE UTAH COURT OF APPEALS
SPANISH FORK CITY,
Plaintiff and Appellee,
v.
EVANS GRADER AND PAVING, INC.,
Defendant and Appellant.
Memorandum Decision
No. 20130396-CA
Filed July 31, 2014
Fourth District Court, Provo Department
The Honorable Steven L. Hansen
No. 090401333
Steve K. Gordon, Attorney for Appellant
S. Junior Baker, Attorney for Appellee
JUDGE GREGORY K. ORME authored this Memorandum Decision,
in which JUDGES MICHELE M. CHRISTIANSEN and JOHN A. PEARCE
concurred.
ORME, Judge:
¶1 Evans Grader and Paving, Inc. (Evans) appeals the district
court’s order granting Spanish Fork City’s (the City) motion for
summary judgment and ordering removal of Evans’s outdoor
advertising signs. We affirm.1

Spanish Fork v. Evans Grader and Paving
2. Because the provisions in effect at the relevant time do not differ
in any way material to our analysis from the statutory provisions
now in effect, we cite the current edition of the Utah Code
Annotated as a convenience to the reader.
20130396-CA 2 2014 UT App 178
¶2 “We review a summary judgment determination for
correctness, granting no deference to the [district] court’s legal
conclusions.” Salt Lake County v. Holliday Water Co., 2010 UT 45,
¶ 14, 234 P.3d 1105 (alteration in original) (citation and internal
quotation marks omitted). Summary judgment is appropriate 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).
¶3 When the City moved for summary judgment, it supported
its motion with the sworn affidavit of the City’s planning director.
Once the City had satisfied its burden of informing the trial court
of the basis for the motion, Evans, if it wished to controvert the
City’s version of the facts, could not simply “rest upon the mere
allegations or denials of the pleadings,” but was required to
respond with depositions, answers to interrogatories, or its own
affidavits, setting “forth specific facts showing that there [was] a
genuine issue for trial.” Id. R. 56(e). Evans failed to oppose the
factual aspects of the motion in a manner consistent with rule 56(e)
and therefore did not show that there was any genuine issue of
material fact that would preclude summary judgment. See id.
(“Summary judgment, if appropriate, shall be entered against a
party failing to file [a proper] response.”). The remaining question
is whether, given the undisputed facts, the City demonstrated its
entitlement to judgment as a matter of law.
¶4 According to the City’s uncontroverted affidavit, the City
has two application forms for obtaining a permit to build an
outdoor sign. One application is for billboards, and one is for on-
premises signs. See Utah Code Ann. § 10-9a-103(3) (LexisNexis
Supp. 2013) (defining billboard as “a freestanding ground sign2
located on industrial, commercial, or residential property if the sign
is designed or intended to direct attention to a business, product,

Spanish Fork v. Evans Grader and Paving
3. Evans maintains that by issuing a permit with knowledge that
Evans had not yet obtained UDOT approval, the City waived the
requirement that UDOT approve the billboards. However, the
City’s clear direction that “[c]onstruction of the billboards shall not
commence” without UDOT approval refutes Evans’s contention
that the City waived the requirement of UDOT approval by issuing
the permit on a conditional basis. “To constitute waiver, there must
be an existing right, benefit or advantage, a knowledge of its
existence, and an intention to relinquish it. [And] . . . the intent to
relinquish a right must be distinct.” Soter’s, Inc. v. Deseret Fed. Sav.
& Loan Ass’n, 857 P.2d 935, 942 (Utah 1993) (citation and internal
quotation marks omitted).
20130396-CA 3 2014 UT App 178
or service that is not sold, offered, or existing on the property
where the sign is located”). When Evans applied for a billboard
permit, the City’s billboard permit application explicitly stated that
approval from the Utah Department of Transportation (UDOT)
was also required. The City issued Evans a billboard permit, but
the permit was transmitted with a letter noting that the City’s
approval was subject to UDOT’s approval. The letter concluded,
“Construction of the billboards shall not commence until the City
has been provided with an approval letter from UDOT.” From all3
that appears in our record, Evans did not contest this procedure
but dutifully sought the necessary permit from UDOT. UDOT
subsequently denied Evans’s application. The City commenced this
litigation when Evans constructed the signs without UDOT’s
approval, which approval was required by the City.
¶5 Evans contends that because it ended up using the
billboards only for on-premises advertising, it did not need UDOT
approval after all because UDOT does not regulate on-premises
signage. See Utah Code Ann. § 72-7-504(1)(c) (LexisNexis Supp.
2013) (excluding from regulation under the Utah Outdoor
Advertising Act “signs advertising activities conducted on the
property where they are located”). But regardless of whether
Evans’s signs were used for on-premises or off-premises
advertising, “the signs are still illegal and subject to removal”
because Evans has not obtained the necessary permits for the signs.

Spanish Fork v. Evans Grader and Paving
4. The Spanish Fork City Municipal Code has been updated, but
because the relevant provisions in effect at the time do not differ in
any way material to our analysis from those now in effect, we cite
to the current version of the municipal code as a convenience to the
reader.
5. We were advised at oral argument that Evans continues to
pursue UDOT’s approval of the signs, through an appeal process
or otherwise. We assume—and the City conceded at oral
argument—that if that approval is forthcoming, the City’s
condition will be satisfied and the signs may remain.
20130396-CA 4 2014 UT App 178
See Kunz & Co. v. State of Utah, 913 P.2d 765, 770 (Utah Ct. App.
1996).
¶6 The Utah Code provides that “[o]utdoor advertising may
not be maintained without a current permit.” Utah Code Ann. § 72-
7-507(1)(a) (LexisNexis 2009). Similarly, the City’s municipal code
states that, subject to certain exceptions, “[b]uilding and sign
permits shall be obtained prior to erecting, placing, constructing or
altering any sign.” Spanish Fork City Municipal Code § 5.36.090
(2013). Evans applied for a municipal permit to erect a billboard4
but never obtained the proper permit from UDOT and
consequently never had authorization from the City to begin
construction on its signs. Evans also never applied for a municipal
permit to construct an on-premises sign. Had it done so, the most
it would have received would have been authorization to erect a
monument sign not exceeding six feet in height. Evans, then, lacked
either type of permit—a UDOT permit to erect a billboard or a
municipal permit to erect a monument sign. As matters stand,5
Evans’s signs are therefore illegal and are subject to removal.
¶7 Affirmed.