Kilgore Companies v. Utah County Board

2019 UT App 20
THE UTAH COURT OF APPEALS
K ILGORE C OMPANIES,
Appellee,
v.
U TAH C OUNTY BOARD OF A DJUSTMENT,
Appellant.
Opinion
No. 20170585-CA
Filed February 7, 2019
Fourth District Court, American Fork Department
The Honorable Robert C. Lunnen
No. 170100064
M. Cort Griffin and Jeffrey R. Buhman, Attorneys
for Appellant
Graden P. Jackson and William B. Ingram, Attorneys
for Appellee
JUDGE DIANA H AGEN authored this Opinion, in which
JUDGES GREGORY K. O RME and M ICHELE M. C HRISTIANSEN
F ORSTER concurred.
HAGEN, Judge:
¶1 	Utah County appeals the district court’s decision to set
aside the Utah County Board of Adjustment’s denial of Kilgore
Companies’ request for a conditional use permit. The Board
denied Kilgore’s request to build silos that were taller than
otherwise permitted, finding that the increased height would
“degrade the public health, safety, or welfare” or “adversely
affect local property values.” We agree with the district court
that there was insufficient evidence to support these findings.
Because Kilgore carried its burden of proving that the proposed

Kilgore Companies v. Utah County Board of Adjustment
20170585-CA 	2 	2019 UT App 20
conditional 	use 	requirements 	were 	met, 	the 	district 	court
correctly set aside the Board’s decision.
BACKGROUND
¶2 	Kilgore operates a properly licensed and bonded asphalt
batch plant (the Plant) located in a mining and grazing zone of
Utah County. Operation of the Plant is a permitted use under
subsection 5-7(B)(2) of the Utah County Land Use Ordinance
(UCLUO). Under UCLUO subsection 5-7(G)(1), the “maximum
permissible height of any structure shall be forty (40) feet”
unless, 	among 	other 	exceptions, 	the 	Board 	approves 	a
conditional use for a taller, unoccupied structure. There is no
limit to the number of 40-foot or shorter unoccupied structures
that may be built.
¶3 	Kilgore 	applied 	for, 	and 	the 	Board 	unanimously
approved, a conditional use permit for three silos with a height
not to exceed 100 feet. The Board found that the requested silos
met 	the 	conditional 	use 	requirements 	outlined 	in 	UCLUO
subsection 7-20(C)(1)–(7).1 Kilgore received and installed the
three 100-foot silos, as well as two additional 65-foot silos.
1. UCLUO subsection 7-20(C) provides that “the Board shall
grant approval” if the conditional use: (1) does not “degrade the
public health, safety or welfare”; (2) is “consistent with the
general purposes and intent of the land use ordinance”; (3) is
“consistent with the ‘characteristics and purposes’ stated for the
zoning district involved and the adopted general plan”; (4) is
“compatible with the public interest and with the characteristics
of the surrounding area”; (5) does “not adversely affect local
property values”; (6) “compl[ies] with all of the terms and
requirements of the land use ordinance”; and (7) does “not result
(continued…)

Kilgore Companies v. Utah County Board of Adjustment
20170585-CA 	3 	2019 UT App 20
¶4 	Several months later, Kilgore submitted a new application
(the 	Application), 	requesting 	a 	conditional 	use 	for 	the 	two
additional 65-foot silos, and the Board met to consider the
Application. The Board repeatedly acknowledged throughout
the meeting that because silos up to 40 feet in height are a
permitted use, it was considering only whether to approve the
additional 25 feet.
¶5 	The Board also received public comment. Among other
things, 	citizens 	expressed 	concern 	regarding 	local 	property
values, traffic, road safety, light pollution,2 and the impact that
dust and other emissions have on public health. Based on these
concerns, the Board continued the meeting and requested that
Kilgore provide further information at the subsequent meeting
addressing 	how 	the 	additional 	25 	feet 	would 	affect 	local
property values and the public health, safety, or welfare.
¶6 	Before 	the 	next 	meeting, 	the 	Utah 	County 	Zoning
Administrator 	(the 	Administrator) 	issued 	a 	written 	report,
recommending approval of the Application. Although Kilgore
had yet to submit the requested supplemental information, the
Administrator 	found 	that 	the 	Application 	satisfied 	the
conditional use requirements under UCLUO subsection 7-20(C).
Notably, the Administrator found that the proposed conditional
use would “not degrade the public health, safety, or welfare,”
(…continued)
in 	a 	situation 	which 	is 	cost 	ineffective, 	administratively
infeasible, or unduly 	difficult for the provision of essential
services.”
2. 	“Light 	pollution” 	is 	defined 	as 	“unwanted 	or
excessive 	artificial 	light.” 	Light 	Pollution, 	Encyclopedia
Britannica, 	https://www.britannica.com/science/light-pollution
[https://perma.cc/22BS-5SZZ].

Kilgore Companies v. Utah County Board of Adjustment
20170585-CA 	4 	2019 UT App 20
because only the height of the silos could be considered and not
the 	operations 	of 	the 	Plant, 	which 	is 	subject 	to 	“bonding
requirements and the approved travel route and traffic plan
analysis.” The Administrator also found that there was “no
evidence . . . [that the additional height] would adversely affect
local property values due to the existing uses on the property,
and its general compatibility with uses on adjacent properties.”
¶7 	As 	to 	property 	values, 	the 	Administrator 	noted 	that
“[o]nly the excessive height should be considered as a factor”
because 	UCLUO 	subsection 	7-20(C) 	permits 	the 	Plant’s
operations 	and 	40-foot 	silos 	at 	the 	current 	location. 	The
Administrator conceded that his finding was not based on any
appraisals or other professional statements regarding property
values, because none had been included with the Application.
But the Administrator explained that any visual impact of the
conditional use would be mitigated because the closest dwelling
is more than half a mile away from the proposed location and
the additional silos could be painted in earth tones to match the
approved 100-foot silos. This finding was further supported by a
professional 	report later submitted by Kilgore in which 	an
appraiser determined that the additional silos “would have [an]
inconsequential visual impact on nearby properties . . . based on
the presence of the three 100-foot silos, which have a dominant
position relative to any silos of a lesser height [that] could be
placed on the site.”
¶8 	Utah County, on the other hand, provided testimony from
residents that live near the Plant. They complained that their
property values had diminished. One homeowner claimed that
he purchased a house near the Plant three years earlier for
$145,000, but a realtor told him that the value was “probably
going to be cut in half.” Other homeowners said that they would
not have purchased their homes if they had known that the Plant
would operate as it does. One homeowner felt that the “homes
are not of value anymore.”

Kilgore Companies v. Utah County Board of Adjustment
20170585-CA 	5 	2019 UT App 20
¶9 	As to the public health, safety, and welfare, Utah County
explained, presumably referring to the sources of origin, that
there are “six different forms of emissions that are related
directly to [the Plant]: Batch mix and drum mix driers, hot oil
heaters, truck load-out, silo filling, asphalt storage tanks, and
yard emissions.” Utah County also explained that “dust is often
a product of asphalt production.” Among other things, Utah
County asserted that these emissions can affect “reproduction,
cause birth defects, [and cause] harmful effects on the skin,
bodily fluids and the immune system.” Utah County “believe[d]
the additional height [of the silos] could compound these effects
and make them worse.”
¶10 	Members of the public also testified before the Board and
complained that taller silos would lead to Kilgore “grinding
more dirt,” which could have an effect on the children with
asthma. One resident living a mile away from the Plant could
smell the smoke the Plant produces. Another resident claimed
she had to “sleep in [her] closet for [a] year” because the light
from the Plant would shine through her window. Residents also
complained that some of the trucks transporting the asphalt do
not stop at stop signs, the number of trucks leads to unsafe
walking and biking conditions, and the trucks are damaging
local roads due to the weight of the loads. But Utah County
conceded, “We don’t have any authority to shut down their
operation, to stop trucks from moving, to stop smoke from
flying. That’s beyond our authority.”
¶11 	In response, Kilgore explained that the additional height
of the silos “doesn’t change how fast [the Plant] can run,” “how
much material it can produce,” or the “hours of operation.” Even
if Kilgore added “eight more 40-foot silos . . . [Kilgore] still
cannot 	increase 	[the 	number 	of] 	trucks 	under 	[its] 	current
permit,” which is 150 round-trips per day. Kilgore attributed the
“dust issues” to the traffic on “the dirt roads inside the pit,” not
the material stored in the silos. And the Division of Air Quality

Kilgore Companies v. Utah County Board of Adjustment
20170585-CA 	6 	2019 UT App 20
inspected the Plant and informed Kilgore that it was “doing
really well.” Kilgore explained that, without approval of the
Board, it is permitted to install as many 40-foot silos as it wanted
to achieve the same result. Kilgore requested the additional
height to reduce the number of silos on the property to achieve
the same permitted use.
¶12 	The Board denied the Application and determined that:
1. The 	additional 	height 	degrades 	the 	property
values of adjacent properties, and
2. The increased height for additional silos would
continue this degradation, and
3. That [Kilgore] has not shown that the application
will 	not 	degrade 	the 	public 	health, 	safety, 	or
welfare.
¶13 	Kilgore challenged the Board’s denial by filing a petition
for 	judicial 	review 	in 	district 	court. 	After 	reviewing 	the
Application, 	the 	Administrator’s 	report, 	“transcripts 	of 	the
meetings, and all materials submitted to and considered by the
Board” in making its decision, the court determined that the
Board’s decision was “not supported by substantial evidence
and, therefore, is arbitrary and capricious.”
¶14 	First, the court concluded that “insufficient evidence was
presented to the Board to distinguish between public health,
safety, and welfare affected by the overall operation of [the
Plant] and the conditional use requested by the Application.”
Second, 	the 	court 	concluded 	that 	there 	was 	“insufficient
evidence . . . presented to the Board to distinguish between
property values affected by the overall operation of [the Plant]
and the conditional use requested by the Application.” The court
therefore set aside the Board’s denial of the Application and

Kilgore Companies v. Utah County Board of Adjustment
20170585-CA 	7 	2019 UT App 20
“remand[ed] the matter to the Board with instruction to approve
Kilgore’s Application.”
¶15 	Utah County appeals.
ISSUES AND STANDARDS OF REVIEW
¶16 	Utah County contends the district court erred in setting
aside the Board’s denial of the Application because Kilgore
failed 	to 	carry 	“its 	burden 	of 	proof 	to 	establish 	by 	a
preponderance of the evidence that the 65-foot silos do not
degrade the public health, safety or welfare and do not adversely
affect local property values.” Relatedly, Utah County contends
the district court erred in determining that the Board’s decision
to 	deny 	the 	conditional 	use 	permit 	was 	not 	supported 	by
substantial record evidence.3 “[I]n an appeal of an administrative
3. In the alternative, Utah County argues that we should vacate
the district court’s order and remand to give the Board the
opportunity to enter additional findings of fact and conclusions
of law. Utah County relies on McElhaney v. City of Moab, 2017 UT
65, 423 P.3d 1284, in which the Utah Supreme Court directed the
district court to instruct the land use authority to revisit an issue
and make additional findings. Id. ¶ 42. In that case, our supreme
court determined that the absence of any written findings of fact
made the land use authority’s decision “an amorphous target”
and left the reviewing courts and the parties to guess at “what
specifically a party seeking to overturn the [authority’s] ultimate
determination 	would 	have 	to 	show 	was 	unsupported 	by
substantial evidence in the record.” Id. ¶ 31. Here, in contrast to
McElhaney, 	the 	Board 	provided 	written 	findings 	that 	the
conditional use was denied because (1) “the applicant has not
shown that the application will not degrade the public health,
safety, or welfare,” (2) “the additional height degrades the
(continued…)

Kilgore Companies v. Utah County Board of Adjustment
20170585-CA 	8 	2019 UT App 20
order, we review the district court’s decision for whether it
correctly determined whether the administrative decision was
arbitrary and capricious or illegal.” LJ Mascaro Inc. v. Herriman
City, 2018 UT App 127, ¶ 16, 428 P.3d 4 (quotation simplified);
see also Utah Code Ann. § 17-27a-801(3)(b) (LexisNexis Supp.
2018) (providing that district courts “shall . . . presume that a
final decision of a land use authority . . . is valid” and uphold
that decision unless it is “arbitrary and capricious” or “illegal”).
ANALYSIS
I. Burden of Proof
¶17 	Utah 	County 	contends 	the 	district 	court 	erred 	in
determining that Kilgore satisfied its burden of proving by a
preponderance of the evidence that the additional height of the
silos would not have a negative effect on (1) the public health,
safety, and welfare, or (2) property values. UCLUO subsection
7-20(D) provides that the “applicant has the burden of proving
(…continued)
property values of adjacent properties,” and (3) approval would
“continue 	this 	degradation.” 	While 	the 	Board 	made 	no
subsidiary findings to support these ultimate conclusions, the
findings were sufficient to apprise the parties of “the basis of its
decision,” provided “notice of what [the parties] would need to
challenge on appeal,” and allowed us to perform our duty of
assessing whether “there was substantial record evidence to
support the Board’s decision.” See J.P. Furlong Co. v. Board of Oil,
Gas & Mining, 2018 UT 22, ¶ 30 & n.8, 424 P.3d 858. And our
review 	of 	the 	record 	shows 	that 	“the 	evidence 	is 	clear,
uncontroverted and capable of only one conclusion.” Palmer v.
St. George City Council, 2018 UT App 94, ¶ 13, 427 P.3d 423
(quotation simplified).

Kilgore Companies v. Utah County Board of Adjustment
20170585-CA 	9 	2019 UT App 20
by a preponderance of the evidence that all the conditions for
granting a conditional use have been met and must meet that
burden based on the facts presented [in] the record; expressions
of support or protest alone shall not constitute the basis of
approval 	or 	denial.” 	The 	preponderance 	of 	the 	evidence
standard 	“requires 	the 	proponent 	of 	a 	contested 	fact 	to
demonstrate that its existence [or nonexistence] is more likely
than not.” Harken Sw. Corp. v. Board of Oil, Gas & Mining, 920
P.2d 1176, 1182 (Utah 1996); see also T-Mobile USA, Inc. v. Utah
State Tax Comm’n, 2011 UT 28, ¶ 17, 254 P.3d 752.
¶18 	Here, “the correct focus for review is whether Kilgore
satisfied its burden of proof relative to the request for additional
height [of the silos], and not the number of silos or overall
operation of [the Plant]” because it is undisputed that there is no
limit to the number of 40-foot silos Kilgore could install.
¶19 	With respect to the public health, safety, and welfare,
Kilgore presented testimony from its representatives, including
the Plant manager, that the height of the two silos would not
change the overall operation or production capacity of the Plant
or the attendant secondary effects on air quality, traffic, or noise
and light pollution. Kilgore’s representatives testified that if the
Board did not approve the Application, it would install three or
more 40-foot silos to achieve the same result. In addition, the
representatives testified that the greater capacity of two taller
silos, rather than three or more smaller ones, would have a
positive effect on the public health, safety, and welfare because it
would require less movement of material between the silos and
would avoid outside storage and mixing of materials that can
negatively affect air quality. Although Utah County dismisses
this testimony as mere representations and not proof, this was
“competent, credible, and uncontradicted testimony” given by
qualified 	witnesses 	with 	personal 	knowledge 	of 	the 	Plant’s
operations. 	See 	Harken 	Sw. 	Corp., 	920 	P.2d 	at 	1178, 	1182
(determining that the Board of Oil, Gas and Mining “ignor[ed]

Kilgore Companies v. Utah County Board of Adjustment
20170585-CA 	10 	2019 UT App 20
. . . competent, credible, and uncontradicted testimony” of an
expert witness regarding the status of oil and gas wells when the
board made its decision). This testimony also supports the
“more likely than not” conclusion that the height of the silos will
not have a negative effect on the public health, safety, or welfare.
See id.
¶20 	As to property values, Utah County argues on appeal that
“increased activity and output facilitated by the 65-foot silos
have adversely affected local property values.” But, as Kilgore
repeatedly explained to the Board, the height of the silos has no
effect on “how fast [the Plant] can run” or “how much material it
can produce.” A separate permit “restricts the amount of ground
to be disturbed . . . [and] the number of trucks that come and go
[from the Plant] each day” and that “any expansion [of Kilgore’s
operations] would have to go through a whole new approval
process” with the State, the county, and regulatory agencies. The
addition of silos, whether 40 feet or taller, does not increase the
activity of the Plant.
¶21 	Kilgore also provided the Board a professional report
from an appraiser who visited the Plant and determined that the
additional silos “would have [an] inconsequential visual impact
on nearby properties . . . based on the presence of the three
100-foot silos, which have a dominant position relative to any
silos of a lesser height which could be placed on the site.” The
Administrator’s report also explained that, because the increased
height of the silos would have no impact on the secondary
effects of the Plant’s operations, the only impact would be visual.
And this visual impact would be mitigated because the closest
dwelling 	is 	located 	more 	than 	half 	a 	mile 	away 	from 	the
proposed location and the silos could be painted in earth tones,
just like the 100-foot silos. These reports support the “more likely
than not” conclusion that the height of the silos will not have a
negative effect on surrounding property values.

Kilgore Companies v. Utah County Board of Adjustment
20170585-CA 	11 	2019 UT App 20
¶22 	On this record, Kilgore satisfied its burden of proof by a
preponderance of the evidence that the two 65-foot silos would
not have a negative effect on the public health, safety, and
welfare, or property values. “[W]e cannot determine how the
Board could have reached its conclusion without ignoring this
competent [and] credible” evidence submitted by Kilgore in
support of the Application. See Harken Sw. Corp. 920 P.2d at 1182.
Therefore, the district court correctly determined that Kilgore
carried its burden of proof before the Board.
II. Substantial Evidence
¶23 	Utah County also contends “[t]he Board’s finding that the
65-foot 	silos 	adversely 	affect 	local 	property 	values” 	and
“degrade the public health, safety [and] welfare” is “supported
by substantial evidence in the record.” We disagree.
¶24 	Courts shall “presume that a final decision of [the Board]
is valid” unless the decision is arbitrary and capricious or illegal.
Utah Code Ann. § 17-27a-801(3)(b) (LexisNexis Supp. 2018). “A
decision 	is 	arbitrary 	and 	capricious 	if 	the 	decision 	is 	not
supported by substantial evidence in the record.” Id. § 17-27a-
801(3)(c)(i). Substantial evidence “is that quantum and quality of
relevant evidence that is adequate to convince a reasonable mind
to support a conclusion.” Associated Gen. Contractors v. Board of
Oil, Gas & Mining, 2001 UT 112, ¶ 21, 38 P.3d 291 (quotation
simplified). It must be “more than a mere ‘scintilla’ of evidence[,]
though 	something 	less 	than 	the 	weight 	of 	the 	evidence.”
Patterson v. Utah County Board of Adjustment, 893 P.2d 602, 604 n.6
(Utah Ct. App. 1995) (quotation simplified).
¶25 	Here, 	the 	Board’s 	decision 	was 	not 	supported 	by
substantial 	evidence. 	We 	agree 	with 	the 	district 	court 	that
“insufficient evidence was presented to the Board to distinguish
between the public health, safety, and welfare[, or the property

Kilgore Companies v. Utah County Board of Adjustment
20170585-CA 	12 	2019 UT App 20
values] affected by the overall operation of [the Plant] and the
conditional use requested by the Application.”
¶26 	Utah County provided no support for the conclusion that
the conditional use would degrade the public health, safety, and
welfare. The only evidence provided by Utah County was in the
form of testimony by members of the public, which included
complaints about the Plant’s operations generally and the fear
that increasing silo capacity would result in greater production
and more truck traffic. While the expressed concerns are sincere
and likely valid, they are primarily addressed to the general
operation of the Plant in an area that has become increasingly
residential. They do not focus on the incremental problem posed
by the additional height of a few additional silos.
¶27 	Critically, Kilgore is not limited in the number of silos that
it can install and operate, only in the height of the silos, and no
evidence was presented to suggest that taller silos would have a
greater impact than additional shorter silos. In addition, Kilgore
repeatedly explained that if the Board denied the Application,
then Kilgore would instead install three or more 40-foot silos on
the property to achieve the same result. And Utah County
provided no testimony showing any causal link between the
height of the silos and the increased effects as opposed to the
increased capacity to store materials, which could have been
accomplished through permitted uses, such as installing more
40-foot silos. Mere “expressions of support or protest alone shall
not constitute the basis of approval or denial.” See Utah County,
Utah, Land Use Ordinance 7-20(D).
¶28 	Similarly, Utah County provided no evidence to support
the Board’s conclusion that the increased height of the silos
would 	degrade 	surrounding 	property 	values. 	Instead, 	the
testimony given by residents from surrounding areas tied the
decrease in property values to the Plant’s operation and the
attendant secondary effects. No evidence was presented that

Kilgore Companies v. Utah County Board of Adjustment
20170585-CA 	13 	2019 UT App 20
taller silos would increase operations beyond the permitted uses
and there was no testimony about the visual effect of taller silos
that would rebut the appraiser’s report.
¶29 	We therefore agree with the district court’s conclusion
that the Board’s denial of the Application was not based on
substantial evidence.
CONCLUSION
¶30 	We conclude the district court did not err in granting
Kilgore’s petition and setting aside the Board’s denial of the
Application because Kilgore satisfied its burden of proof that the
additional height of the silos would not have a negative effect on
the public health, safety, and welfare or surrounding property
values. 	We 	further 	conclude 	the 	district 	court 	correctly
determined 	that 	the 	Board’s 	denial 	was 	not 	supported 	by
substantial evidence. Accordingly, we affirm.