Farley v. Utah County

2019 UT App 45
THE UTAH COURT OF APPEALS
K ENYON L. F ARLEY AND I RENE F ARLEY ,
Appellants,
v.
U TAH C OUNTY ,
Appellee.
Opinion
No. 20161078-CA
Filed March 28, 2019
Fourth District Court, Provo Department
The Honorable Claudia Laycock
No. 150400689
Vincent C. Rampton, Attorney for Appellants
Jody K. Burnett and Robert C. Keller, Attorneys
for Appellee
JUDGE DIANA HAGEN authored this Opinion, in which
JUDGES M ICHELE M. C HRISTIANSEN F ORSTER and JILL M. POHLMAN
concurred.
HAGEN, Judge:
¶1 	Kenyon 	L. 	Farley 	and 	Irene 	Farley 	(collectively,
the Farleys) submitted an application (the Application) to create
an agriculture protection area to shield their land from any
future zoning decisions and municipal regulations that would
interfere with agricultural use. In response to the Application,
Utah County’s Board of Commissioners (Utah County) received
two modification requests (the Modification Requests), seeking
to exclude portions of the Farleys’ land that might be needed to
widen 	roads 	or 	install 	utility 	lines 	in 	the 	future. 	After
considering the Application and the Modification Requests, Utah
County 	approved 	a 	modified 	application 	that 	excluded 	the
challenged portions from the agriculture protection area. The

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20161078-CA 	2 	2019 UT App 45
Farleys appealed the decision to the district court, which granted
summary judgment in favor of Utah County. The Farleys now
appeal the district court’s order, arguing that under state and
local law, Utah County lacked discretion to do anything except
approve the Application. We affirm.
BACKGROUND1
¶2 	The Farleys are landowners in Utah County. In 2014, they
submitted 	the 	Application 	to 	Utah 	County, 	requesting 	the
creation 	of 	an 	agriculture 	protection 	area. 	An 	agriculture
protection area is a geographic area that is granted “specific legal
protections,” Utah Code Ann. § 17-41-101(3) (LexisNexis 2017),
intended 	to 	exempt 	the 	land 	from 	zoning 	decisions 	and
municipal regulations that would restrict farming practices, see
id. § 17-41-402 (limitations on local regulations); id. § 17-41-403
(nuisances); id. § 17-41-404 (policy of state agencies); id. § 17-41-
405 (eminent domain restrictions); id. § 17-41-406 (restrictions on
state 	development 	projects). 	Soon 	thereafter, 	Utah 	County
received the Modification Requests. First, Payson City Municipal
Corporation and Payson City Power and Light (collectively,
Payson) requested that Utah County exclude from the protected
area an easement where Payson intended to install a utility line
at an undetermined time in the future. Second, the Utah County
Engineer’s Office (the Engineer’s Office) requested that Utah
County exclude rights-of-way for two roads currently crossing a
portion of the proposed agriculture protection area because,
according to Utah County’s General Plan, these roads had been
identified as collector and arterial roads that may be widened at
an unspecified time.
1. “In reviewing a district court’s grant of summary judgment,
we view the facts and all reasonable inferences drawn therefrom
in the light most favorable to the nonmoving party and recite the
facts accordingly.” Far West Bank v. Robertson, 2017 UT App 213,
¶ 2 n.4, 406 P.3d 1134 (quotation simplified).

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20161078-CA 	3 	2019 UT App 45
¶3 	Pursuant 	to 	Utah 	law, 	the 	Application 	and 	the
Modification 	Requests 	were 	referred 	to 	the 	Utah 	County
Agriculture 	Protection 	Area 	Advisory 	Board 	(the 	Advisory
Board) 	and 	the 	Utah 	County 	Planning 	Commission 	(the
Planning Commission) for their separate review, comments, and
recommendations. 	Ultimately, 	the 	Advisory 	Board 	and 	the
Planning Commission returned conflicting recommendations.
The 	Advisory 	Board recommended 	that 	the 	Application 	be
approved 	as 	originally 	submitted, 	while 	the 	Planning
Commission 	recommended 	that 	it 	be 	approved 	with 	the
Modification Requests.
¶4 	Utah County considered the conflicting recommendations
at 	four 	public 	hearings. 	While 	the 	Application 	was 	under
consideration, Utah County and the Farleys discussed potential
agreements designed to address the concerns raised by Payson
and the Engineer’s Office about the potential need to acquire
property to widen roads or install utility lines, but no agreement
was 	reached. 	Consequently, 	Utah 	County 	considered 	the
Application along with the Modification Requests.
¶5 	In a two-to-one decision, Utah County approved the
Application with the Modification Requests, concluding that its
decision was warranted under Utah Code section 17-41-305,
which, among other things, required it to consider “anticipated
trends in agricultural and technological conditions.” Id. § 17-41-
305(5)(a). Utah County acknowledged that although it wanted to
afford the Farleys the protections guaranteed to real property
within agriculture protection areas, it also had a duty to protect
previously 	planned 	corridors. 	In 	balancing 	these 	conflicting
interests, 	Utah 	County 	determined 	that 	approving 	the
Application without the Modification Requests would not be in
the best interests of the general welfare, health, and safety of its
citizens.
¶6 	The Farleys filed a complaint with the district court,
appealing the decision to exclude portions of their property from
the agriculture protection area. In the complaint, the Farleys

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20161078-CA 	4 	2019 UT App 45
alleged 	that 	Utah 	County’s 	decision: 	(1) 	was 	arbitrary,
capricious, and contrary to the law; (2) violated their due process
rights; (3) violated their equal protection rights; and (4) entitled
them to relief under 42 U.S.C. § 1983. In addition, relying on 42
U.S.C. § 1988, the Farleys requested all costs and attorney fees.
¶7 	Utah 	County 	and 	the 	Farleys 	filed 	cross-motions 	for
summary judgment. After hearing argument on the motions, the
district 	court 	granted 	summary 	judgment 	in 	favor 	of 	Utah
County. In its order, the district court first determined that the
governing statutes provided Utah County with discretion in
deciding whether to approve the Application with or without
the 	Modification 	Requests, 	and 	that, 	at 	a 	minimum, 	Utah
County’s decision was reasonably debatable. Second, the court
concluded 	that 	because 	the 	Farleys 	had 	only 	a 	unilateral
expectation that Utah County would approve the Application
without the Modification Requests, their due process rights had
not been violated. Finally, the court determined that the Farleys
had failed to demonstrate that they had been treated differently
from similarly situated landowners and that Utah County had
acted with personal animus to deny them equal protection of the
laws. The district court did not address the Farleys’ claims under
§ 1983 and § 1988.
¶8 	The Farleys appeal.
ISSUE AND STANDARD OF REVIEW
¶9 	The Farleys contend the district court erred in granting
summary 	judgment 	in 	favor 	of 	Utah 	County. 	Summary
judgment is appropriate only when “there is no genuine dispute
as to any material fact and the moving party is entitled to
judgment as a matter of law.” Utah R. Civ. P. 56(a). On appeal,
we review a district court’s grant of summary judgment for
correctness, 	affording 	no 	deference 	to 	the 	court’s 	legal
conclusions. See Baker v. Park City Mun. Corp., 2017 UT App 190,
¶ 12, 405 P.3d 962.

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ANALYSIS
¶10 	The 	Farleys’ 	challenge 	to 	the 	district 	court’s 	ruling
presents three issues for our consideration. First, they contend
that 	Utah 	County 	exceeded 	its discretion 	in 	approving 	the
Application with modifications. Specifically, the Farleys argue
that under the Agricultural and Industrial Protection Areas Act
(the Act), see generally Utah Code Ann. §§ 14-41-101 to -503
(LexisNexis 2017), Utah County was required to approve the
Application without modification and that failure to do so was
contrary to law. Second, the Farleys contend that Utah County
violated their due process rights. Finally, the Farleys argue that
Utah County’s decision to modify and approve the Application
denied them equal protection of the laws.2 We address each
argument in turn.
I. Statutory Interpretation
¶11 	The Farleys contend that Utah County acted contrary to
law 	when 	it 	approved 	the 	Application 	subject 	to 	the
Modification 	Requests. 	The 	parties 	dispute 	whether 	Utah
County’s action was a legislative or adjudicative decision, which
2. The Farleys also argue that they “should have been permitted
to pursue their claims under 42 U.S.C. § 1983.” The Farleys
concede that a § 1983 claim “is dependent on the deprivation of
rights secured by the Constitution and law of the United States”
and assert that the reasons set forth in their arguments relating
to 	due 	process 	and 	equal 	protection 	show 	that 	they 	were
deprived 	of 	their 	rights 	secured 	by 	the 	United 	States
Constitution and federal law. See 42 U.S.C. § 1983 (2012). Because
we conclude that the Farleys have not established that Utah
County deprived them of “any rights, privileges, or immunities
secured by the Constitution,” their § 1983 claims fail as a matter
of law. See id.; see also see infra ¶¶ 24–29. For that reason, they are
not entitled to attorney fees under § 1988.

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would impact the degree of deference afforded to that decision.3
Even 	assuming, 	without 	deciding, 	that 	the 	decision 	was
adjudicative, as the Farley’s contend, this court must presume
that the decision was valid and uphold the decision unless it
was (A) illegal or (B) arbitrary and capricious. See Utah Code
Ann. § 17-27a-801(3) (LexisNexis Supp. 2018). The Farleys have
not 	established 	either 	basis 	for 	overturning 	Utah 	County’s
decision.
A. 	Utah County’s Decision Was Not Illegal
¶12 	The Farleys’ primary argument is that Utah County’s
decision 	was 	illegal. 	A 	land 	use 	decision 	is 	illegal 	if 	it 	is
“(A) based 	on 	an 	incorrect 	interpretation 	of 	a 	land 	use
regulation; or (B) contrary to law.” Utah Code Ann. § 17-27a-
801(3)(c)(ii) (LexisNexis Supp. 2018). The Farleys argue that it
was undisputed that all portions of their property met the
criteria listed in Utah Code section 17-41-305 and, as a matter of
law, Utah County could do nothing but approve the Application
without modification. In other words, they argue that Utah
County had no discretion to make the decision it made. We
disagree.
¶13 	When interpreting a statute, our goal is to give effect to
the legislature’s intent in light of the statute’s intended purpose.
See Garfield County v. United States, 2017 UT 41, ¶ 15, 424 P.3d 46.
“The 	best 	evidence 	of 	the 	legislature’s 	intent 	is 	the 	plain
language of the statute itself.” Id. (quotation simplified). Where
the statute’s plain language is unambiguous, we need not look to
3. 	Land 	use 	regulations 	enacted 	by 	a 	legislative 	body 	are
reviewed under a “reasonably debatable” standard, whereas
adjudicative land use decisions are reviewed under an “arbitrary
and 	capricious” 	standard 	that 	requires 	the 	decision 	to 	be
“supported by substantial evidence in the record.” Utah Code
Ann. § 17-27a-801(3)(a)–(c) (LexisNexis Supp. 2018).

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secondary considerations, such as legislative history. See Harvey
v. Cedar Hills City, 2010 UT 12, ¶ 15, 227 P.3d 256.
¶14 	The mere fact that both parties can articulate alternative
interpretations of the statutory language is not enough to create
an ambiguity. “Where both sides offer conceivable constructions
of the language in question . . . the statutory text may not be
‘plain’ when read in isolation, but may become so in light of its
linguistic, 	structural, 	and 	statutory 	context.” 	Olsen 	v. 	Eagle
Mountain 	City, 	2011 	UT 	10, 	¶ 	9, 	248 	P.3d 	465 	(quotation
simplified). 	Accordingly, 	“a 	proposed 	interpretation 	that 	is
plausible in isolation may . . . lose its persuasive effect when we
seek to harmonize it with the rest of the statutory scheme.”
Oliver v. Utah Labor Comm’n, 2017 UT 39, ¶ 21, 424 P.3d 22
(quotation simplified). With these principles in mind, we turn to
the case before us.
¶15 	To 	understand 	the 	procedure 	for 	evaluating 	and
approving applications for the creation of agriculture protection
areas, we begin with an overview of the relevant sections of the
Act. Upon receiving an application for an agriculture protection
area, the applicable legislative body shall provide notice to the
public, advising that persons or entities affected by the creation
of the area may file written objections or modification requests.
See generally Utah Code Ann. § 17-41-302 (LexisNexis 2017). In
addition, the notice must indicate that the legislative body will
hold a hearing at which it will discuss or hear public comment
on the application as a whole. Id. § 17-41-302(2)(e)–(f).
¶16 	After notice has been provided, the application and any
proposed modifications are then referred to the Advisory Board
and the Planning Commission for their review, comments, and
recommendation. Id. § 17-41-303(1). As part of their review, the
Advisory Board and the Planning Commission shall submit a
written report that:
• 	“analyzes and evaluates the proposal by applying
the criteria contained in Section 17-41-305”;

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20161078-CA 	8 	2019 UT App 45
• 	“recommends any modifications to the land to be
included in the proposed agriculture protection
area . . .”;
• 	“analyzes 	and 	evaluates 	any 	objections 	to 	the
proposal; and”
• 	“includes 	a 	recommendation 	to 	the 	applicable
legislative 	body 	either 	to 	accept, 	accept 	and
modify, or reject the proposal.”
Id. § 17-41-303(2)(a)(ii)–(v), (2)(b)(ii)–(iv). The relevant criteria
contained in section 17-41-305 that are to be analyzed and
evaluated in the agency’s report are: (1) “whether or not the land
is currently being used for agriculture production”; (2) “whether
or not the land is zoned for agriculture use”; (3) “whether or not
the land is viable for agriculture production”; (4) “the extent and
nature 	of 	existing 	or 	proposed 	farm 	improvements”; 	and
(5) “anticipated 	trends 	in 	agricultural 	and 	technological
conditions.” Id. § 17-41-305. In addition to these common factors
evaluated by both agencies, the Planning Commission must also
“analyze[] 	and 	evaluate[] 	the 	effect 	of 	the 	creation 	of 	the
proposed area on the planning policies and objectives of the
county or municipality.” Id. § 17-41-303(2)(a)(i).
¶17 	After receiving both reports and holding a public hearing,
the applicable legislative body must then decide whether to
“approve, modify and approve, or reject” the application. Id.
§ 17-41-304(3)(a). 	Here, 	after 	receiving 	conflicting
recommendations from the Advisory Board and the Planning
Commission, as well as holding four public hearings, Utah
County 	elected 	to 	modify 	and 	approve 	the 	Application—a
decision we conclude it had the discretion to make.
¶18 	Contrary to the Farleys’ interpretation, Utah County was
not required to approve the Application without modification so
long as each portion of their land met the criteria set out in

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20161078-CA 	9 	2019 UT App 45
section 	17-41-305. 	While 	this 	proposed 	interpretation 	may
appear plausible in isolation, it loses its persuasive effect when
read in conjunction with sections 17-41-303 and 17-41-304. See
Oliver, 2017 UT 39, ¶ 21.
¶19 	Utah Code section 17-41-305 provides that certain criteria
shall be considered by the legislative body “in determining
whether or not to create or recommend the creation of an
agriculture protection area,” but it does not mandate approval of
an application that meets all five criteria. See Utah Code Ann.
§ 17-41-305 	(LexisNexis 	2017). 	And 	not 	all 	of 	the 	criteria
enumerated in Utah Code section 17-41-305 can be objectively
met. While the considerations presented in subsections (1)–(3)
are based on existing conditions and can be answered in either
the affirmative or the negative, those presented in subsections
(4)–(5) 	cannot. 	Instead, 	the 	latter 	criteria 	are 	more
forward-looking inquiries that require the Advisory Board, the
Planning 	Commission, 	and 	the 	legislative 	body 	to 	analyze
“existing and proposed farm improvements” and “anticipated
trends in agricultural and technological conditions.” Id. § 17-41-
305(4)–(5) 	If 	the 	criteria 	in 	section 	17-41-305 	could 	be
mechanically applied and if approval followed automatically
whenever those criteria were met, there would be little need for
two agencies to separately review the application and make
recommendations, and for the legislative body to hold a public
hearing and then decide whether to “approve, modify and
approve, or reject” an application. See id. § 17-41-304(3)(a).
¶20 	Moreover, 	the 	statutory 	scheme 	does 	not 	limit 	the
Advisory Board and the Planning Commission to offering their
assessment on whether the criteria under section 17-41-305 are
satisfied. Indeed, the Planning Commission is require to also
“analyze[] 	and 	evaluate[] 	the 	effect 	of 	the 	creation 	of 	the
proposed area on the planning policies and objectives of the
county 	or 	municipality.” 	Id. 	§ 	17-41-303(2)(a)(i). 	Such 	a
requirement would be meaningless if the legislative body that
reviews the Planning Commission’s report could not consider
that factor. Because the Act requires an evaluation of factors

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20161078-CA 	10 	2019 UT App 45
beyond those criteria listed in section 17-41-305, the statutory
scheme as a whole does not support the conclusion that an
application 	must 	be 	approved 	if 	those 	five 	criteria 	are
“satisfied.” 	Therefore, 	the 	plain 	language 	of 	the 	Act
unambiguously 	grants 	Utah 	County 	discretion 	in 	deciding
whether to approve and modify the creation of an agriculture
protection area.4
B. 	Utah 	County’s 	Decision 	Was 	Not 	Arbitrary 	and
Capricious
¶21 	The Farleys also contend that Utah County’s decision was
arbitrary and capricious. “A decision is arbitrary and capricious
if the decision is not supported by substantial evidence in the
record.” Utah Code Ann. § 17-27a-801(3)(c)(i) (LexisNexis Supp.
2018). 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).
¶22 	Here, the Farleys contend Utah County made no findings
to support its decision that the modifications to the Application
were appropriate, and “[t]o the extent that factual findings were
made,” “all findings of fact went in [the Farleys] favor.” “To
determine 	whether 	substantial 	evidence 	supports 	[Utah
County’s] decision, we consider all of the evidence in the record
4. Our interpretation of the Act is not negated by the Farleys’
allegation that Utah County’s decision was based solely on its
desire to subvert the additional protections afforded by sections
17-41-405 and 17-41-406, because, significantly, those protections
are afforded only after the land has been included “within an
agriculture protection area.” See Utah Code Ann. §§ 17-41-
405(1)–(2), 	-406(1), 	(3) 	(LexisNexis 2017). 	Put 	differently, 	an
application to create an agriculture protection area must be
approved before those protections are implicated.

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20161078-CA 	11 	2019 UT App 45
but do not weigh the evidence anew or substitute our judgment
for that of the municipality.” See LJ Mascaro Inc. v. Herriman City,
2018 UT App 127, ¶ 20, 428 P.3d 4 (quotation simplified). We
will not disturb Utah County’s decision “so long as a reasonable
mind 	could 	reach 	the 	same 	conclusion.” 	Id. 	(quotation
simplified). Given the nature of our review of Utah County’s
decision, “it is incumbent upon [the Farleys] . . . to marshal all of
the evidence in support thereof and show that despite the
supporting facts, and in light of conflicting or contradictory
evidence, the decision is not supported by substantial evidence.”
See Carlsen v. Board of Adjustment of City of Smithfield, 2012 UT
App 260, ¶ 5, 287 P.3d 440 (quotation simplified).
¶23 	The Farleys have made no effort to marshal any of the
numerous findings made by Utah County in support of its
decision. 	Nor 	have 	they 	marshalled 	any 	“conflicting 	or
contradictory evidence” in support of their argument to show
that 	Utah 	County’s 	decision 	was 	not 	based 	on 	substantial
evidence. See id. (quotation simplified). “By failing to address the
evidence that supports [Utah County’s] decision” or “conflicting
or contradictory evidence,” see id. ¶¶ 5, 7 (quotation simplified),
the Farleys have failed to carry their burden of persuasion on
appeal, see Utah Physicians for a Healthy Env’t v. Executive Dir. of
the Utah Dep’t of Envtl. Quality, 2016 UT 49, ¶ 20, 391 P.3d 148
(explaining 	that 	an 	appellant’s 	failure 	to 	marshal 	record
evidence is no longer a “technical deficiency,” but such failure
“will almost certainly” result in the appellant’s “fail[ure] to carry
its burden of persuasion on appeal” (quotation simplified)).
II. Due Process
¶24 	The Farleys next contend that Utah County violated their
substantive due process rights. Among other protections, the
Fourteenth Amendment prohibits states from “depriv[ing] any
person of . . . property, without due process of law.” U.S. Const.
amend. XIV, § 1. “Procedural due process ensures the state will
not 	deprive 	a 	party 	of 	property 	without 	engaging 	fair
procedures to reach a decision, while substantive due process

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20161078-CA 	12 	2019 UT App 45
ensures the state will not deprive a party of property for an
arbitrary reason regardless of the procedures used to reach that
decision.” Hyde Park Co. v. Santa Fe City Council, 226 F.3d 1207,
1210 (10th Cir. 2000).
¶25 	To prevail on either a procedural or substantive due
process claim, “a plaintiff must first establish that a defendant’s
actions deprived plaintiff of a protectable property interest.” Zia
Shadows, LLC v. Las Cruces City, 829 F.3d 1232, 1237 (10th Cir.
2016) (quotation simplified). The United States Supreme Court
has stated that a “property interest” is “more than a unilateral
expectation”; instead, it is a “legitimate claim of entitlement.”
Board of Regents v. Roth, 408 U.S. 564, 577 (1972); see also Petersen
v. Riverton City, 2010 UT 58, ¶ 22, 243 P.3d 1261 (“A property
interest exists only where existing rules and understandings that
stem from an independent source such as state law secure
certain 	benefits and 	support 	claims of 	entitlement 	to 	those
benefits.” 	(quotation 	simplified)). 	In 	municipal 	land 	use
regulation cases, such as this, the entitlement analysis focuses
“on the degree of discretion given the decision maker.” Hyde
Park, 226 F.3d at 1210 (quotation simplified). Therefore, the
Farleys must demonstrate that state and local law establish
specific conditions, “the fulfillment of which would give rise to a
legitimate expectation” that Utah County would approve the
Application as submitted. See id. (quotation simplified).
¶26 	The Farleys contend that a landowner has “the right to
approval of a development or other land-related application ‘if
his proposed development meets the zoning requirements in
existence at the time of his application and if he proceeds with
reasonable diligence, absent a compelling, countervailing public
interest.’” (Quoting Western Land Equities, Inc. v. Logan City, 617
P.2d 388, 396 (Utah 1980).) Specifically, they argue that because
all portions of their property satisfied the factors set out in Utah
Code 	section 	17-41-305—the 	law 	in 	effect 	at 	the 	time—the
Application was entitled to a favorable decision from Utah
County, that is, approval without the Modification Requests.

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20161078-CA 	13 	2019 UT App 45
¶27 	The 	Farleys’ 	reliance 	on 	section 	17-41-305 	alone 	is
misplaced. 	As 	discussed, 	supra 	¶¶ 	15–17, 	approval 	of
applications for agriculture protection zone status is governed
by sections 17-41-303 through 17-41-305. Significantly, under
section 17-41-304, Utah County had discretion to “approve,
modify and approve, or reject” the Application. See Utah Code
Ann. § 17-41-304(3)(a) (LexisNexis 2017). In addition, the Act
allows “any person or entity affected by the establishment of the
area” to file written objections and proposed modifications, see
id. § 17-41-302(2)(c), which the Advisory Board and the Planning
Commission “shall” consider when compiling their report to the
applicable 	legislative 	body, 	see 	id. 	§ 	17-41-303(2)(a). 	And
although it may be true that section 17-41-305 requires that
municipalities consider certain enumerated criteria in reviewing
applications, the Act does not provide that fulfillment of those
criteria 	strips 	municipalities 	of 	discretion 	and 	mandates
approval. See generally id. §§ 17-41-303, -304, -305. Indeed, the
criteria under subsection 17-41-303(2) relating to the Planning
Commission’s and the Advisory Board’s analysis of “objections”
to an application and their discretion to “recommend . . . either
to accept, accept and modify, or reject” an application are not
conditions that can be objectively satisfied, as the Farleys argue,
but are subjective considerations that those entities must take
into account when reviewing an application. See id. § 17-41-
303(2); see also supra ¶ 19.
¶28 	Because 	the 	Act 	does 	not 	require 	approval 	of 	the
Application if definitive conditions are met, the Farleys had no
legitimate claim of entitlement to the creation of an agriculture
protection 	area. 	Instead, 	the 	Farleys 	had 	only 	a 	unilateral
expectation that Utah County would approve the Application
without the Modification Requests, not a protectable property
interest necessary to assert a due process claim.
III. Equal Protection
¶29 	Relying on the “class of one” theory established in Village
of Willowbrook v. Olech, 528 U.S. 562 (2000) (per curiam), the

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Farleys next contend that Utah County violated their equal
protection rights by singling them out for disparate treatment
without a rational basis to do so. See id. at 564 (quotation
simplified). Under the “class of one” theory, it is the Farleys’
burden to show that: (1) they have “been intentionally treated
differently from others similarly situated” and (2) “there is no
rational basis for the difference in treatment.” See id. (quotation
simplified).
¶30 	The Farleys have presented no evidence showing that
similarly 	situated 	landowners 	applying 	for 	agriculture
protection area status were treated more favorably by Utah
County. 	Their 	equal 	protection 	claim 	rests 	entirely 	on 	a
statement made by a county deputy attorney who was asked by
the County Commissioners “whether similar measures have
previously 	been 	taken 	for 	agriculture 	protection 	areas.” 	In
response, the deputy attorney stated, “[N]ot to his knowledge.”
¶31 	The 	Farleys 	cannot 	carry 	their 	burden 	based 	on 	the
deputy attorney’s statement alone. The statement does not speak
to whether similarly-situated applicants exist and, if so, whether
those applicants were treated more favorably than the Farleys. In
arguing that neither Utah County nor the district court identified
a single applicant that was treated like them, the Farleys have
attempted to shift the burden of proof. But it is the Farleys who
must establish that similarly-situated landowners received more
favorable treatment, and it is insufficient for them to allege that
they were a “trial balloon” or a case of “first impression.”
Instead, 	they 	must 	identify 	comparators 	that 	are 	“similarly
situated in all material respects,” which is a “substantial burden”
in 	this 	context 	because 	“each 	property 	has 	unique
characteristics.” See Kansas Penn Gaming, LLC v. Collins, 656 F.3d
1210, 1217–18 (10th Cir. 2011); id. at 1218 (stating that this
requirement 	prevents 	“a 	flood 	of 	claims 	in 	that 	area 	of
government action where discretion is high and variation is
common”). Because the Farleys have failed to identify facts that
tend to demonstrate that they were treated differently from
other similarly situated landowners, their equal protection claim

Farley v. Utah County
20161078-CA 	15 	2019 UT App 45
fails as a matter of law, and we need not address whether there
was a rational basis for Utah County’s decision.
CONCLUSION
¶32 	We conclude that Utah County was entitled to summary
judgment as a matter of law. First, under the Act, Utah County
had discretion to modify the Application for the creation of an
agriculture 	protection 	area 	and 	the 	Farleys 	have 	not
demonstrated that Utah County exercised that discretion in an
arbitrary and capricious manner. Second, due to that discretion,
the Farleys had only a unilateral expectation of a favorable
decision, which is insufficient to establish a due process claim.
Finally, we conclude that the Farleys did not make the necessary
showing to establish an equal protection claim. Accordingly, we
affirm.