Fox v. Park City

2008 UT 85
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Bret Fox, an individual; and 	No. 20070567
Tawnya Fox, an individual,
Plaintiffs and Appellants,
v.
Park City, a Utah municipal
corporation; Park City Board of
Adjustment, a body organized
under Park City Land Management
Code; and Legacy Development Group, 	F I L E D
LLC, a Utah limited liability company,
Defendants and Appellees. 	December 16, 2008
---
Third District, Silver Summit
The Honorable Bruce C. Lubeck
No. 060500476
Attorneys: 	Blake D. Miller, Ryan K. Done, Salt Lake City, for
appellants
Mark D. Harrington, Polly Samuels-McLean, Park City,
for appellees Park City Municipal Corp. and Park City
Board of Adjustment
Eric P. Lee, Salt Lake City, for appellee Legacy Dev.
Group
---
PARRISH, Justice:
INTRODUCTION
¶1 	Bret and Tawnya Fox (the “Foxes”) sought to appeal Park
City’s issuance of a building permit to Legacy Development Group,
LLC (“Legacy”). 	The Park City Planning Commission (the “Planning
Commission”) held that the Foxes’ appeal was untimely under the
ten-day appeal period contained in the Park City Land Management
Code (the “LMC”). 	The district court upheld the Planning
Commission’s determination that the Foxes’ appeal was untimely

No. 20070567 	2
under the LMC and, accordingly, dismissed the Foxes’ petition for
review.
¶2 	While we affirm the dismissal, we hold that the
district court erred in applying the ten-day appeal period of the
LMC. 	Rather, the ten-day appeal period of Utah Code section 10-
9a-704 applies. 	This appeal period began to run when the Foxes
received notice of the permit’s issuance. 	Because the Foxes did
not appeal within this ten-day period, the Foxes’ appeal was
untimely, and we therefore affirm the district court’s dismissal
of the Foxes’ petition.
BACKGROUND
¶3 	In May 2005, Legacy applied for a building permit with
the Park City Community Planning Development Department (the
“Department”). 	Legacy sought to construct three residential
buildings on property it owned in Park City (the “Subject
Property”). 	The Department issued the building permit on July
14, 2005. 	Legacy began construction on the three buildings in
the fall of 2005.
¶4 	The Subject Property is within 300 feet of a home owned
by the Foxes. 	The Foxes claim that sometime in January 2006,
they noticed that “one of the buildings appeared to be taller
than it should in comparison with some of the other surrounding
buildings.” 	The following day, Mr. Fox went to the city offices
and asked to review the plans for the buildings on the Subject
Property. 	Based on his review of the plans, Mr. Fox determined
that “it appeared that the buildings were going to exceed Park
City’s height restriction.” 	He inquired of the Department what
he must do to bring the issue to their attention and he was told
that he needed to file an appeal with the Planning Commission.
¶5 	The Foxes submitted a notice of appeal to the Planning
Commission on January 19, 2006. 	In the notice of appeal, the
Foxes claimed that the three buildings exceeded the maximum
allowed height under the LMC. 	The Foxes also claimed that the
excess height of the buildings interfered with the view from
their property.
¶6 	On June 14, 2006, the Planning Commission held a
hearing on the Foxes’ appeal. 	The Planning Commission determined
that the Department’s issuance of the building permit to Legacy
was a final action and that, based on the LMC, a final action
must be appealed within ten days. 	The Planning Commission held
that because the Foxes did not appeal the issuance of the
building permit within ten days of July 14, 2005, their appeal

3 	No. 20070567
was untimely and that the Planning Commission lacked jurisdiction
to hear the merits of the appeal. 	Accordingly, the Planning
Commission dismissed the Foxes’ appeal with prejudice.
¶7 	The Foxes then appealed the Planning Commission’s
decision to the Park City Board of Adjustment (the “Board”), and
the Board held a hearing on the appeal on August 22, 2006. 	The
Board upheld the Planning Commission’s determination that it
lacked jurisdiction due to the Foxes’ failure to timely appeal.
Accordingly, the Board dismissed the appeal with prejudice.
¶8 	The Foxes filed a petition for review in the Third
District Court. 	The petition sought a reversal of the Board’s
decision, a declaratory judgment against Legacy for its violation
of the LMC height restrictions, and an injunction against Legacy
to bring the three buildings into compliance with the height
requirements of the LMC. 	Park City filed a motion to dismiss,
arguing that the Foxes failed to state a claim for relief due to
their failure to timely file an appeal with the Planning
Commission. 	Legacy filed a motion for summary judgment, arguing
that under section 10-9a-701 of the Utah Code, the Foxes had
failed to fulfill a condition precedent to judicial review by not
filing a timely challenge to the issuance of the building permit.
Legacy also joined in Park City’s motion to dismiss and Park City
joined in Legacy’s motion for summary judgment. 	The Foxes also
moved for summary judgment on their claims.
¶9 	Following briefing on the parties’ motions, the
district court held a hearing. 	On June 6, 2007, the district
court issued its Ruling and Order. 	The court concluded that the
issuance of a building permit constituted a final action under
the LMC and that, therefore, an appeal regarding the issuance of
a building permit had to be made within ten days from the
issuance. 	Because the Foxes did not file their appeal within
ten days after the issuance of the building permit, the appeal
was untimely. 	Accordingly, the court denied the Foxes’ motion
for summary judgment, granted Park City’s motion to dismiss, and
granted Legacy’s motion for summary judgment.
¶10 	The Foxes appeal the district court’s decision. 	We
have jurisdiction pursuant to Utah Code section 78A-3-102(3)(j)
(Supp. 2008).
STANDARD OF REVIEW
¶11 	When a district court reviews an 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

1 See Carrier v. Salt Lake County, 2004 UT 98, ¶ 17, 104
P.3d 1208; Save Our Canyons v. Bd. of Adjustment, 2005 UT App
285, ¶ 12, 116 P.3d 978.
2 Utah Code Ann. § 10-9a-801(3)(a)(ii) (2007); see also
Carrier, 2004 UT 98, ¶ 26; Save Our Canyons, 2005 UT App 285,
¶ 12.
3 Utah Code Ann. § 10-9a-801(3)(c); see also Save Our
Canyons, 2005 UT App 285, ¶ 12.
4 Utah Code Ann. § 10-9a-801(3)(d).
5 Carrier, 2004 UT 98, ¶ 28; see also Save Our Canyons, 2005
UT App 258, ¶ 12.
6 Park City Municipal Code § 15-1-18(A) (“Any decision by
the Planning Director regarding Application of this LMC to a
Property may be appealed to the Planning Commission.”).
7 Id. § 15-1-18(E) (emphasis added).
No. 20070567 	4
authority’s decision directly, and we afford no deference to the
district court’s decision. 1 	Like the review of the district
court, our review is limited to whether a land use authority’s
decision is “arbitrary, capricious, or illegal.” 2 	A land use
authority’s decision is arbitrary or capricious only if it is not
“supported by substantial evidence in the record.” 3 	A land use
authority’s decision is illegal if it “violates a law, statute,
or ordinance in effect at the time the decision was made.” 4
Because a determination of illegality is based on the land use
authority’s interpretation of zoning ordinances, we review such
determinations for correctness, but we “also afford some level of
non-binding deference to the interpretation advanced by” the land
use authority. 5
ANALYSIS
I. 	THE TEN-DAY APPEAL PERIOD UNDER THE LMC DOES NOT APPLY
¶12 	Under the LMC, the planning director’s decision to
issue a building permit is appealable. 6 	Section 15-1-18(E) of
the LMC provides that “[a]ll appeals must be made within ten (10)
calendar days of the Final Action.” 7 	The question is whether the
issuance of a building permit is a “final action.” 	If it is a
final action, as the Planning Commission determined and as Park
City suggests to this court, then an appeal of the issuance must
be made to the Planning Commission within ten days of the

8 See Carrier v. Salt Lake County, 2004 UT 98, ¶ 30, 104
P.3d 1208 (“In interpreting the meaning of . . . [an] ordinance,
we begin first by looking to the plain language of the
ordinance.”).
9 Park City Municipal Code § 15-1-18(A)-(C) (emphases
added).
10 See id. § 15-1-18(E).
11 Id. § 15-15-1.90.
5 	No. 20070567
issuance. 	If it is not a final action, as the Foxes claim, then
the ten-day appeal period does not apply.
¶13 	We resolve this dispute by looking to the plain
language of the LMC. 8 	Section 15-1-18(A)-(C) of the LMC provides
as follows:
(A) Any decision by the Planning Director
regarding Application of this LMC to a
Property may be appealed to the Planning
Commission . . . .
(B) Final Actions by the Historic
Preservation Board may be appealed to the
Board of Adjustment.
(C) Final Actions by the Planning Commission
on staff appeals may be appealed to the Board
of Adjustment . . . . 9
It is significant that this section designates the planning
director’s application of the LMC--which includes the planning
director’s issuance of a building permit--as a “decision” rather
than a “Final Action” because, under the plain language of
section 15-1-18(E), only “Final Actions” must be appealed within
ten days. 10
¶14 	Park City argues that the issuance of a building permit
should be considered a “Final Action” because it fits under the
LMC’s definition of “Final Action”: 	“[t]he later of the final
vote or written decision on a matter.” 11 	This does not, however,
change the fact that the plain language of section 15-1-18(A)
provides that the planning director’s issuance of a building
permit is characterized as a “decision” rather than a “Final
Action.” 	“When examining the plain language [of an ordinance],
we must assume that each term included in the ordinance was used

12 Carrier, 2004 UT 98, ¶ 30.
13 Utah Code Ann. § 10-9a-704(1) (2007).
14 Park City, Utah, Municipal Code § 15-1-18(A) (“Any
decision by the Planning Director regarding Application of this
LMC to a Property may be appealed to the Planning Commission.”).
No. 20070567 	6
advisedly.” 12 	Accordingly, we must assume that Park City used
the term “decision” rather than the defined term “Final Action”
purposefully and advisedly in subsection (A) when referring to
actions taken by the planning director. 	Park City could have
referred to the actions of the planning director as “Final
Actions,” just as it did in subsections (B) and (C) when
referring to the actions of the Historic Preservation Board and
the Planning Commission, but it clearly elected not to do so. 	We
decline to substitute Park City’s selected term with a defined
term that could have been, but was not, used. 	Because the
issuance of a building permit is not a “Final Action,” the ten-
day appeal period of section 15-1-18(E) does not apply.
II. 	THE TEN-DAY APPEAL PERIOD OF UTAH CODE SECTION 10-9a-704
APPLIES
¶15 	Having determined that the ten-day appeal period of the
LMC does not apply to appeals from the issuance of a building
permit, we must now determine what time period does apply. 	We
determine that the ten-day appeal period under Utah Code section
10-9a-704 applies.
¶16 	Section 10-9a-704 provides that municipalities “shall
enact an ordinance establishing a reasonable time of not less
than ten days to appeal to an appeal authority a written decision
issued by a land use authority.” 13 	Based on this statute, Park
City should have passed an ordinance establishing a reasonable
appeal period for appeals from decisions of the planning
director. 	As discussed in the previous section, however, Park
City has failed to establish such a period. 	The LMC does not
have an ordinance addressing the appeal period for an appeal from
a “decision” of the planning director. 14
¶17 	This omission is remedied, however, by section 10-9a-
704(2). 	“In the absence of an ordinance establishing a
reasonable time to appeal, an adversely affected party shall have
ten calendar days to appeal to an appeal authority a written

15 Utah Code Ann. § 10-9a-704(2).
16 See id. § 10-9a-103(15) (defining “land use authority” as
“a person, board, commission, agency, or other body designated by
the local legislative body to act upon a land use application”).
17 Utah Code Ann. § 10-9a-704(2) (2007).
18 406 A.2d 218 (N.J. Super. Ct. Law Div. 1979).
19 Id. at 226 (quoting N.J. Stat. Ann. § 40:55D-72).
20 Id. at 227.
21 Id. (internal quotation marks omitted).
7 	No. 20070567
decision by a land use authority.” 15 	A building permit
constitutes “a written decision by a land use authority.” 16 	As
such, the appeal period for an appeal of the issuance of a
building permit is ten days.
III. 	THE TEN-DAY APPEAL PERIOD BEGINS WHEN THE AFFECTED PARTY
HAS ACTUAL OR CONSTRUCTIVE NOTICE OF THE ISSUANCE OF THE PERMIT
A. 	Section 10-9a-704 Does Not Provide a Triggering Event to
Begin the Appeal Period
¶18 	Having determined that the ten-day appeal period of
Utah Code section 10-9a-704 applies, we must now determine when
the appeal period begins. 	Section 10-9a-704 is ambiguous on this
point. 	The plain language of the statute provides that “an
adversely affected party shall have ten calendar days to appeal
to an appeal authority,” 17 but does not provide the triggering
event that commences the ten-day period.
¶19 	A similar issue arose in the case of Trenkamp v.
Township of Burlington.18 	The statute at issue in Trenkamp
provided that “‘[a]ppeals to the board of adjustment may be taken
by any interested party affected by any decision of an
administrative officer of the municipality’” and that “‘such
appeal shall be taken within 65 days.’” 19 	The New Jersey
Superior Court held that although the statute set a sixty-five
day appeal period, it was “silent . . . as to the event that
triggers commencement of this time period.” 20 	The court noted
that the legislature “could have made its intention very clear by
providing, for example, that an appeal shall be taken within 65
days of the date of the decision” but did not do so. 21 	The court
also noted that there were other possible commencement dates,

22 Id.
23 State ex rel. Brookside Poultry Farms, Inc. v. Jefferson
County Bd. of Adjustment, 388 N.W.2d 593, 599 (Wisc. 1986); see
also Hardy v. Zoning Bd. of Review, 321 A.2d 289, 292 (R.I. 1974)
(“Clearly, when a landowner has been granted a permit to make a
particular use of his land, he is entitled to know when that
decision will become final and no longer be subject to review or
reversal by the board. 	Only in such circumstance may such a
landowner feel secure in putting the land to the use granted him
by the permit. 	It is equally true that those who object to the
granting of a permit are entitled to know within what period of
time they must appeal . . . .”).
No. 20070567 	8
such as the date the permit is issued, the date construction
begins, or the date the permit is posted. 22
¶20 	Like the court in Trenkamp, we conclude that section
10-9a-704 does not provide a triggering event for the ten-day
appeal period. 	As such, we must determine what commences the
appeal period. 	Park City argues that the triggering event should
be the issuance of the building permit. 	The Foxes, on the other
hand, argue that the appeal period should not begin until the
adversely affected party receives some sort of notice. 	The
competing interests of the permit holder and the neighboring
landowners are captured in the following quote from the Wisconsin
Supreme Court:
[The permit holder’s] interest is to start
construction promptly. 	It wants the appeal
period to start at the earliest possible date
so that the appeal period ends as soon as
possible after the administrative decision is
made. 	[The permit holder’s] interest
therefore is to have notice of the issuance
of the permit occur on the date of the
issuance. 	[The neighbors’] interest is in
protecting the use and enjoyment of their
property. 	They are interested in having the
appeal period commence when they know of the
administrative decision so that they have the
opportunity to consider action. 23
¶21 	For the reasons discussed below, we join other courts
in concluding that the interests of both the permit holder and
the neighboring landowners are best balanced by the rule that the

24 See Arkae Dev., Inc. v. Zoning Bd. of Adjustment, 312
N.W.2d 574, 577 (Iowa 1981) (“[C]ourts have almost uniformly held
that time to file an appeal with a zoning board of adjustment
commences when the appealing party is chargeable with notice or
knowledge of the decision complained of.”); Brookside Poultry
Farms, 388 N.W.2d at 598 n.4 (“[S]everal courts have held that
the time for appeal commences on the day that the appellant
receives notice of the issuance of the permit.”).
25 Utah Code Ann. § 10-9a-703.
26 Id.
27 See Munroe v. Zoning Bd. of Appeals, 802 A.2d 55, 60
(Conn. 2002) (“‘[W]ithout notice that a decision has been
reached, the right to appeal from that decision is meaningless.’”
(quoting Loulis v. Parrott, 695 A.2d 1040, 1048 (Conn. 1997))).
28 See Arkae Dev., 312 N.W.2d at 576-77 (“‘A landowner is
often unaware that a permit had been applied for and issued until
construction starts on the lot adjoining his property.’” (quoting
3 A. Rathkopf, The Law of Zoning and Planning § 37.04[1][a] n.10
(1981))); Larsen v. Town of Colton, 973 P.2d 1066, 1072 (Wash.
(continued...)
9 	No. 20070567
appeal period begins when the aggrieved party has actual or
constructive knowledge of the issuance of the permit. 24
B. 	Without Notice, the Right To Appeal Is Meaningless
¶22 	The Utah Code provides that “any person adversely
affected by [a] land use authority’s decision administering or
interpreting a land use ordinance” has the right to appeal that
decision to an appeal authority. 25 	A planning director’s
issuance of a building permit constitutes a “decision
administering or interpreting a land use ordinance.” 26
Accordingly, any person who is adversely affected by the issuance
of a building permit has a statutory right of appeal.
¶23 	A right to appeal a decision is meaningless, however,
if the person possessing the right has no actual or constructive
notice of the decision. 27 	This is often the case when building
permits are issued. 	The Utah Code does not require a
municipality to provide notice to neighboring landowners that a
building permit has been issued; thus, neighboring landowners do
not receive actual notice of the permit’s issuance.
Additionally, neighboring landowners often do not receive
constructive notice until construction begins, 28 which often does

28 (...continued)
Ct. App. 1999) (“When . . . the land use decision is a purely
ministerial act, the aggrieved person may not have notice or
actual knowledge. 	Indeed, a neighbor’s only notice that a
building permit has issued may be the beginning of
construction.”).
29 See Pansa v. Damiano, 200 N.E.2d 563, 565 (N.Y. 1964)
(stating that beginning the appeal period at the time of a
permit’s issuance “might prevent any appeal at all since the
neighbors might not learn [until] long afterward of the issuance
of a building permit”).
30 See Trenkamp, 406 A.2d at 227 (stating that “because of
the absence of any statutory notification or publication
requirement in connection with the issuance of building permits,”
a permit holder could deliberately wait the statutory time period
plus one day before taking any action pursuant to the permit,
thereby precluding an appeal by interested persons who had no
knowledge of the permit’s issuance); 	see also Marino v. Town of
Cape Elizabeth, No. CV 94-194, 1994 Me. Super. LEXIS 303, at *2
(Me. Super. Ct. July 29, 1994) (“Frequently, the first suggestion
an abutter receives that a permit has been issued is the
observation that construction has begun.”); Larsen, 973 P.2d at
1072 (stating that beginning the appeal period at the time a
permit is issued “allow[s] a landowner to avoid any judicial
review by obtaining a building permit and waiting [the required
number of] days before beginning construction”).
No. 20070567 	10
not happen until several weeks or months after the building
permit has been issued. 	Thus, if the appeal period begins when a
building permit is issued, by the time neighboring landowners
receive any type of notice of the permit’s issuance, the
statutory time for appeal has passed. 29 	In such a situation, the
landowners’ statutory right to appeal is meaningless.
¶24 	Starting the appeal period at the time of the permit’s
issuance, without some sort of notice requirement, effectively
strips potentially aggrieved parties of their right to appeal.
Indeed, without some sort of notice requirement, a permit holder
can completely elude review by simply waiting until eleven days
after the permit is issued before beginning construction. 30 	A
landowner would be forced to check the municipality’s records
every ten days to see if any building permits had been issued
that may have an adverse affect on the landowner’s property.
Such a rule places too high a burden on landowners in order to

31 See Trenkamp, 406 A.2d at 223 (“The law does not saddle
the public with an obligation requiring the constant scrutiny of
voluminous official documents . . . in order to protect
individual rights.”).
32 See Munroe, 802 A.2d at 60 (“[O]ne allegedly aggrieved by
the decision of a building inspector who has neither actual
knowledge of that decision nor who, under the circumstances of a
given case could be reasonably charged with such knowledge . . .
is, for all practical purposes, denied the right of appeal . . .
if he is bound by a regulation of the board that an appeal must
be taken within [the statutorily mandated number of] days of the
decision.”).
33 See id. (interpreting a similar statute and determining
that because it “provide[d] a meaningful right to appeal for all
persons aggrieved by the actions of zoning enforcement
officials,” the appeal period contained in the statute did not
begin until the aggrieved party had “notice of the action from
which appeal is sought”).
11 	No. 20070567
exercise their statutory right of appeal. 31 	We accordingly
reject the proposition that the issuance of the building permit
begins the running of the statutory appeal period.
¶25 	Because the legislature has given a statutory right of
appeal to those adversely affected by the issuance of a building
permit, we must interpret this right in a way that does not
render the right meaningless. 	And the right to appeal would be
rendered meaningless if the appeal period begins when those who
may be adversely affected by the decision have no notice of the
decision. 32 	Thus, we conclude that to give meaning to the
statutory right of appeal, neighboring landowners must receive
actual or constructive notice of the issuance of a building
permit in order for the ten-day appeal period to begin. 33
C. 	The Affected Party Must Have Actual or Constructive Notice of
the Issuance of the Building Permit
¶26 	Having concluded that an adversely affected party must
receive notice of a building permit’s issuance before the appeal
period begins, we must now determine what notice is sufficient to
start the appeal period. 	We adopt the rule adopted by the
majority of the states that have addressed this issue, which is

34 See Arkae Dev., 312 N.W.2d at 577 (“[C]ourts have almost
uniformly held that time to file an appeal with a zoning board of
adjustment commences when the appealing party is chargeable with
notice or knowledge of the decision complained of.”); see also
id. (“[T]he time for appeal should run from the earliest of the
date (a) the appealing party had actual knowledge of the decision
appealed from, (b) the appealing party was chargeable with
knowledge of that decision, or (c) notice of the decision is
given in a reasonable, specified manner.” (footnote omitted));
State ex rel. Green’s Bottom Sportsmen, Inc. v. St. Charles
County Bd. of Adjustment, 553 S.W.2d 721, 725 (Mo. Ct. App. 1977)
(“[T]ime to file an appeal commences to run when notice, actual
or constructive, is given the party affected by the order to be
appealed.”); Tausanovitch v. Town of Lyme, 722 A.2d 914, 916
(N.H. 1998) (“Generally, the time for an appeal from the
administrative officer’s decision begins to run when the
appealing party knows or should have known about the decision.”);
Trenkamp, 406 A.2d at 227 (“[A] proper regard for the interests
of [affected parties] mandates that the time for appeal begins to
run from the date an interested person knew or should have known
of the permit’s issuance.”); Cave v. Fredonia, 373 N.Y.S.2d 932,
935 (N.Y. Sup. Ct. 1975) (“[T]he commencement of the [appeal]
period runs from the date that [a] grievant becomes chargeable
with notice of issuance of the permit complained of . . . .”);
Larsen, 973 P.2d at 1072 (“Actual or constructive knowledge of
the building permit . . . should be the triggering event for a
reasonable limitation period.” (footnote omitted)).
35 See Arkae Dev., 312 N.W.2d at 577 (“[W]hen construction
begins pursuant to a permit and this activity is visible to the
public, an objector is chargeable with knowledge of the permit
even though he himself does not learn of the construction or the
permit until later.”); see also Munroe, 802 A.2d at 61 (stating
that neighbors received notice of a landowner’s building permit
to construct a second story addition on garage when he began
demolition of his garage roof); Tausanovitch, 722 A.2d at 916
(stating that neighbors “had actual or constructive notice” of
the issuance of a building permit when construction began);
Trenkamp, 406 A.2d at 226 (“Actual knowledge, or reason to know
(continued...)
No. 20070567 	12
that the appeal period begins when the affected party receives
actual or constructive notice that the permit has been issued. 34
¶27 	Generally, if a party does not receive actual notice of
the issuance of the permit, the party receives constructive
notice that a building permit has been issued when construction
begins. 35 	However, the commencement of construction is not the

35 (...continued)
of [the building permit’s] issuance, was had . . . when
construction began.”).
36 Arkae Dev., 312 N.W.2d at 578.
37 Id. at 577 (citations omitted).
38 See id. (“[T]he [appeal] period runs from the date that
the person appealing had actual knowledge or was chargeable with
knowledge of the decision appealed from and of the facts forming
the basis of his objection.”).
39 Bunse v. Schmeling, 2001 Iowa App. LEXIS 713, No. 1-
460/00-1501, at *3, *4 (Iowa Ct. App. Nov. 28, 2001) (holding
that because a party observed a neighboring landowner building a
garage, the party “possessed timely knowledge sufficient to place
him under a duty to make inquiry and ascertain all the relevant
facts”).
13 	No. 20070567
only way a permit holder can give notice of the permit to
neighboring landowners and thereby begin the appeal period. 	The
permit holder may “devise some method of his own for ensuring
that members of the public will be chargeable with knowledge of
the permit and his building intentions, such as posting a visible
and informative sign on the property prior to construction.” 36
¶28 	“[K]nowledge or notice of a ‘decision’ refers not only
to the administrative decision itself (e.g., issuance of a
building permit) but also to the facts constituting the basis for
objecting to that decision . . . .” 37 	Thus, 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. 38 	Such facts are generally contained in the permit or
permit application on file with the municipality. 	Once a party
has actual or constructive notice that a permit has been issued,
the party is chargeable with knowledge of the information
contained in the permit and the permit application. 39
Accordingly, if the facts that form the basis for the party’s
appeal can be ascertained by a review of the permit application,
the party is charged with knowledge of those facts once he or she
has actual or constructive notice of the permit’s issuance. 	If,
on the other hand, the permit application does not contain the
facts, and the party is not charged with knowledge of the facts,

40 See Green’s Bottom Sportsmen, 553 S.W.2d at 724 (holding
that neighboring landowners did not receive notice that newly
constructed buildings would be used as a gun club--which was not
a permitted use--until after construction had been completed and
shooting began because the building permit application stated
that a “sportsman club” was being constructed, which would not
“lead a reasonably intelligent person to believe” that a gun club
was actually being built); Cohen v. Dunan, No. 2002-599, 2004
R.I. Super. LEXIS 103, at *40 (R.I. Super. Ct. June 9, 2004)
(holding that an aggrieved party was not charged with knowledge
of disputed improvements because “even a careful inspection of
the plans filed with the application for that permit” could not
have uncovered that the disputed improvements were going to be
made).
No. 20070567 	14
then the appeal period does not begin until the party receives
knowledge of those facts from some other source. 40
¶29 	We note that the rule we adopt is a general rule and
that there may be exceptional circumstances that may allow an
affected party to bring an appeal even after the appeal period
has run. 	Such circumstances may include fraud on the part of the
permit applicant or bribery of municipal officials to secure the
building permit. 	These types of actions so severely undermine
the permit process that the appeal period would not begin until
the affected parties have notice of them.
¶30 	In sum, we adopt the rule that the appeal period begins
when an affected party receives actual or constructive notice
that the building permit has been issued.
IV. 	THE TEN-DAY APPEAL PERIOD DOES NOT BEGIN WHEN THE AFFECTED
PARTY RECEIVES NOTICE OF THE ALLEGED VIOLATION
¶31 	Although we adopt the rule that the appeal period
begins when the aggrieved party receives actual or constructive
notice that a building permit has been issued, we think it
necessary to explain why we reject the rule advanced by the
Foxes. 	The Foxes contend that the appeal period should not begin
until an affected party receives actual notice of the alleged
violation. 	Under the Foxes’ proposed rule, the appeal period
began when the buildings on the Subject Property reached a height
that alerted them to a possible height violation.
¶32 	As previously mentioned, this case requires us to
balance the competing interests of the permit holder and of the
neighboring landowners. 	The building permit holder “is entitled
to know when [the municipality’s decision to issue a building

41 Hardy v. Zoning Bd. of Review, 321 A.2d 289, 292 (R.I.
1974).
42 Id.
43 State ex rel. Brookside Poultry Farms, Inc. v. Jefferson
County Bd. of Adjustment, 388 N.W.2d 593, 599 (Wisc. 1986).
15 	No. 20070567
permit] will become final and no longer be subject to review or
reversal.” 41 	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.” 42 	On the other hand, neighboring
landowners have an interest “in protecting the use and enjoyment
of their property.” 43 	Accordingly, they have an interest in
appealing a municipality’s decision to issue a building permit
when they believe that the decision is erroneous and that they
are adversely affected by the decision.
¶33 	These competing interests are not properly weighed
under a rule that the appeal period does not begin until there is
actual notice of the alleged violation. 	Such a rule weighs too
heavily in favor of the neighboring landowners and gives the
permit holder no finality or assurance. 	For example, assume a
developer submits a building permit application. 	During the
municipality’s review of the application, a question arises
regarding the proper application of a zoning ordinance. 	The
municipality reviews the ordinance and interprets it in a way
that allows the structure to be built as proposed in the
application. 	Accordingly, a building permit is issued. 	The
developer, who may not even be aware that a question arose during
the permit review process, then expends substantial sums of money
constructing the building. 	As construction is nearing
completion, a neighboring landowner notices that the building
looks too tall. 	The neighbor then goes down to city hall,
reviews the permit application, and discovers that under an
alternative interpretation of the ordinance, the building exceeds
the height restriction. 	Allowing the neighbor to appeal the
issuance of the building permit at this point would be unfair
because the neighbor had all of the information necessary to
mount an appeal--notice of the permit’s issuance and the
information contained in the permit application--months earlier,
before the developer spent a substantial amount of money in
reliance on the building permit.
¶34 	We therefore conclude that the better rule is the rule
we adopt in this case--that the appeal period begins when the
neighboring landowners receive actual or constructive notice of

44 W. Land Equities, Inc. v. City of Logan, 617 P.2d 388,
391 (Utah 1980).
45 Utah County v. Young, 615 P.2d 1265, 1267 (Utah 1980).
No. 20070567 	16
the permit’s issuance. 	This rule places on the permit holder the
responsibility of providing notice of the permit’s issuance,
whether it be by beginning construction or by some other means.
And, once notice is given, the rule places on the neighboring
landowners the responsibility of reviewing the available
information to determine if they want to appeal the permit’s
issuance. 	This rule balances the interests of the parties by
assuring that the neighboring landowners have notice of the
permit and an opportunity to appeal, while giving the permit
holder assurance of the permit’s finality and reliability.
¶35 	We also reject the Foxes’ proposed rule because it
conflicts with another well-established rule in Utah: 	the
doctrine of zoning estoppel. 	This doctrine
estops a government entity from exercising
its zoning powers to prohibit a proposed land
use when a property owner, relying reasonably
and in good faith on some governmental act or
omission, has made a substantial change in
position or incurred such extensive
obligations or expenses that it would be
highly inequitable to deprive the owner of
his right to complete his proposed
development. 44
To invoke the doctrine of zoning estoppel, the municipality “must
have committed an act or omission upon which the developer could
rely in good faith in making substantial changes in position or
incurring extensive expenses. 	The action upon which the
developer claims reliance must be of a clear, definite and
affirmative nature.” 45
¶36 	A building permit that is applied for and issued in
good faith is clearly an affirmative action of the municipality
upon which a developer should be able to rely. 	If a building
permit is issued based on a municipality’s interpretation of the
applicable zoning ordinances, the municipality would be estopped
from later asserting a different interpretation and attempting to
revoke the permit after the permit holder has incurred extensive
expense in reliance on the permit.

46 Although the exact date construction began is not
apparent from the record, we do know that it was prior to
September 13, 2005, because the footings were inspected on that
date.
47 On appeal to this court, Park City contends that the
Foxes’ January 19 notice of appeal was incomplete because it was
not accompanied by the required filing fee. 	Park City argues
that the notice of appeal was not complete until the filing fee
was paid on May 11 and, therefore, asks us to use May 11 as the
effective date of the notice of appeal. 	We need not address Park
City’s argument because the Foxes’ notice of appeal was untimely
even if we use January 19 as the effective date.
17 	No. 20070567
¶37 	Using the hypothetical above, the municipality would
most likely be estopped from revoking the permit, even if the
neighbor was allowed to appeal the issuance of the building
permit when the building reached a height that alerted the
neighbor to the potential height violation. 	The municipality
would be estopped because the developer reasonably and in good
faith incurred extensive expenses in reliance on the building
permit, and it would be inequitable to deny the developer the
right to finish construction of the building pursuant to the
permit.
¶38 	In summary, the Foxes’ proposed rule that the appeal
period begins when the aggrieved party receives actual notice of
the violation would lead to a situation where the party has a
right (the right to appeal the permit’s issuance) without a
remedy (the power of the city to revoke the permit). 	Because it
is illogical to adopt a rule that provides a right without a
remedy, we reject the Foxes’ proposed rule.
V. 	THE FOXES’ NOTICE OF APPEAL WAS UNTIMELY
¶39 	Having articulated the rule regarding when the ten-day
appeal period begins, we now apply the rule to the facts of this
case and determine that the Foxes’ notice of appeal was untimely.
¶40 	Construction on the Subject Property began in the fall
of 2005. 	This construction was readily visible to surrounding
landowners. 	Indeed, Mr. Fox testified in a deposition that he
saw construction activities taking place on the Subject Property
in the fall of 2005. 	Although the exact date construction began
is not entirely clear from the record, 46 there is no arguable
dispute that the Foxes’ notice of appeal was filed more than ten
days after construction began. 47

No. 20070567 	18
¶41 	Additionally, the facts forming the basis for the
Foxes’ appeal were contained in the permit application. 	Indeed,
Mr. Fox testified in his deposition that “from my review of the
plans [on file with Park City], it appeared that the buildings
were going to exceed Park City’s height restriction.”
¶42 	Thus, the Foxes had notice that a building permit had
been issued in the fall of 2005 when construction began. 	And the
Foxes were charged with notice of the facts forming the basis for
their appeal because they were contained in the permit
application. 	Accordingly, the ten-day appeal period began when
construction began, and the Foxes did not file their appeal
within this time limit. 	Their notice of appeal was therefore
untimely.
CONCLUSION
¶43 	The district court correctly dismissed the Foxes’
petition for review because their notice of appeal was untimely.
Affirmed.
---
¶44 	Chief Justice Durham, Associate Chief Justice Durrant,
Justice Wilkins, and Judge Greenwood concur in Justice Parrish’s
opinion.
¶45 	Justice Nehring does not participate herein; Utah Court
of Appeals Judge Pamela T. Greenwood sat.