Morra v. Grand County

2010 UT 21
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Barbara A. Morra, Michael K. Suarez, No. 20080566
John S. Weisheit, Harold Shepherd,
Jennifer P. Speers, Tara Collins,
William Love, Sarah M. Fields, John
C. Dohrenwend, Paul Janos, and
Steve Mulligan,
Plaintiffs and Appellants,
v.
Grand County, Utah, and the Grand
County Council,
Defendants and Appellees,
Cloudrock Land Company, LLC, F I L E D
Defendant-Intervenor
and Appellee. March 30, 2010
---
Seventh District, Moab Dep’t
The Honorable Lyle R. Anderson
No. 070700108
Attorneys: J. Craig Smith, Lyle J. Fuller, Nancy J.
Delacenserie, R. Christopher Preston, Salt Lake City,
for plaintiffs
W. Scott Barrett, Logan, Happy J. Morgan, Moab, for
defendants
Michael D. Zimmerman, Wade R. Budge, Troy L. Booher,
Salt Lake City, for defendant-intervenor
---
DURRANT, Associate Chief Justice:
INTRODUCTION
¶1 In this appeal, we consider a challenge by a group of
citizens (the “Citizens”) to an ordinance passed by the Grand
County Council (the “Council”). The ordinance approved an
amended development agreement. The district court granted
summary judgment in favor of the Council, and the Citizens timely

1 The development was originally referred to as “Johnson’s
Up-on-Top Mesa,” but we refer to it throughout this opinion as
the “Cloudrock Development,” which is the name currently used by
the parties in this case.
2 Grand County’s zoning regulations have designated certain
uses as uses-on-review. A use-on-review is a “use that may or
may not be appropriate in a given location” and should be
approved subject to conditions that are “designed to reasonably
mitigate adverse impacts of the use upon surrounding properties.”
(continued...)
No. 20080566 2
appealed. We are required to determine whether the Citizens have
standing to challenge the ordinance and, if so, whether the
district court erred in granting summary judgment. We conclude
that the Citizens have standing under our traditional test and
that the County’s failure to provide a record of the
administrative proceedings to the district court violated the
County Land Use and Development Management Act (“CLUDMA”) and
precluded review of the Council’s decision. Accordingly, we
reverse the district court’s grant of summary judgment.
BACKGROUND
¶2 In 2002, over the objections of a number of citizens,
the Council approved a 2,000-acre planned unit development
located on a mesa above the Glen Canyon Aquifer (the “Cloudrock
Development”).1 The aquifer serves as the main source of
culinary water for Moab, Utah. The Council’s approval of the
Cloudrock Development was conditioned upon terms set out in a
development agreement executed between the County and the
developer.
¶3 After failing to dissuade the Council from approving
the Cloudrock Development, a group of citizens appealed the
Council’s approval to the Board of Adjustment, which upheld the
Council’s decision. From 2002 to 2006, litigation unrelated to
the issues in this case stalled work on the Cloudrock
Development.
¶4 In 2006, Cloudrock Land Company, LLC, succeeded to the
rights of the original developer and, in October of that year,
presented an Amended Plan and Preliminary Phase 1 Plat (the
“Amended Plan”) to the Grand County Planning Commission (the
“Planning Commission”). The Amended Plan was substantially
similar to the original development master plan, but did
reallocate densities and make changes to the development’s
wilderness lodge use-on-review provisions.2

(...continued)
Grand County, Utah Land Use Code, Art. VI.L.1 (2000). The land
on which the development is proposed to be built is zoned “RG.”
The RG zoning classification provides for a “dude ranch” or
“wilderness lodge” as a use-on-review. The original development
sought a use-on-review permit for a wilderness lodge that
included a number of accessory facilities, including
“restaurants, [a] spa, [a] gift shop, [an] equestrian center, [a]
creek pavilion, [an] event amphitheater, recreational amenities,
and a hiking [and] biking center.” The Amended Plan also sought
a use-on-review permit for the wilderness lodge, but eliminated
the equestrian lodge as an accessory facility and sought to
increase the average size of the wilderness lodge units from 600
square feet to 1,000 square feet.
3 The original plan provided for 485 total housing units
(225 lodging units, 150 village residential units, and 110 mesa
residential units), while the Amended Plan provides for 409
housing units (73 lodging units, 156 village residential units,
and 180 mesa residential units). Both plans contain a total of
372.5 ERU.
3 No. 20080566
¶5 Although the total number of effective residential
units (“ERU”) remained the same under both plans, the Amended
Plan contained fewer actual residential housing units and
significantly reduced the number of lodging units, while
increasing the number of mesa residential units.3 Furthermore,
under the Amended Plan, the mesa residential units were clustered
and pulled away from the rim of the development, in contrast to
the original plan, which had placed the mesa residential units in
a line along the development’s boundary. Finally, the Amended
Plan also eliminated the equestrian lodge proposed in the
original plan and strengthened the development’s urban core by
relaxing building height requirements and providing for changes
to the accessory facilities to the wilderness lodge.
¶6 The Planning Commission conditionally approved the
Amended Plan, subject to certain changes being made in the
development agreement. The Amended Plan, together with an
amended version of the development agreement, was placed before
the Council in 2007. The Citizens lobbied the Council in
opposition to the Amended Plan. Nevertheless, on May 8, 2007,
the Council passed Ordinance 454, which approved both the Amended
Plan for the Cloudrock Development and an amended version of the
development agreement.

4 While Cloudrock stipulated that the Citizens could file
their proposed amended complaint, the record does not reflect
that the amended complaint was ever actually filed. But any such
failure is inconsequential to our analysis, since we (1)
determine that the Citizens have standing to challenge the
Council’s decision based on the allegations in the original
complaint and (2) do not reach the merits of the Citizens’ claims
due to the County’s failure to transmit the record as required by
statute.
No. 20080566 4
¶7 Just as in 2002, the Citizens appealed the Council’s
decision to the Board of Adjustment. But this time, the Grand
County Attorney issued a statement of opinion that the Board
lacked jurisdiction over the appeal since the approval of
Ordinance 454 was legislative, rather than administrative, in
nature. After the issuance of the Grand County Attorney’s
statement, the Board of Adjustment took no further action on the
Citizens’ administrative appeal.
¶8 At this point, the Citizens turned to the district
court, where, as a precautionary measure, they had previously
filed an action contesting the Council’s decision. The Citizens’
complaint named Grand County and the Council as defendants and
alleged that the Council’s approval of Ordinance 454 was illegal.
The Citizens sought declaratory relief deeming Ordinance 454
invalid and the amended development agreement null and void.
Additionally, after the Grand County Attorney had issued his
opinion that the Board of Adjustment lacked jurisdiction over the
Citizens’ administrative appeal, the Citizens moved to amend
their complaint4 to include an alternative claim that the
district court lacked jurisdiction and a request that the action
be remanded back to the Board. Shortly before the Citizens had
moved to amend their complaint, the district court granted
Cloudrock’s motion to intervene.
¶9 The Citizens and Cloudrock filed cross-motions for
summary judgment. Grand County and the Council joined in
Cloudrock’s motion. In their motion, the Citizens, in addition
to their other arguments, objected to the fact that Grand County
had failed to provide the district court with a record of the
proceedings before the Council. The district court heard oral
argument on the motions on April 15, 2008, at which time
Cloudrock presented a letter certifying that the documents
attached to its motion were true and correct copies of the record
of the proceedings before the Council. The Citizens objected to
Cloudrock’s certification, arguing that it was both untimely and
incomplete.

5 Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600.
6 Id.
7 Utah R. Civ. P. 56(c).
5 No. 20080566
¶10 The district court ultimately granted Cloudrock’s
motion for summary judgment, ruling that (1) the district court
had jurisdiction over the Citizens’ appeal because Ordinance 454
was a legislative act, (2) because Ordinance 454 was a
legislative act it was presumptively legal, and (3) the Citizens
had failed to carry their burden to prove that Ordinance 454 did
not serve a legitimate land use purpose or was otherwise illegal.
It also determined that, because Ordinance 454 was a legislative
act, a record was not required to review the Council’s action.
¶11 The Citizens timely appealed the district court’s
determinations. We have jurisdiction pursuant to Utah Code
section 78A-2-102(3)(j) (2008).
STANDARD OF REVIEW
¶12 A district court’s grant of summary judgment is a legal
ruling that we review without deference.5 A district court
should grant summary judgment only when, viewing all facts and
reasonable inferences therefrom in the light most favorable to
the nonmoving party,6 “there is no genuine issue as to any
material fact and . . . the moving party is entitled to a
judgment as a matter of law.”7
ANALYSIS
¶13 We begin by determining whether the Citizens have
standing to challenge the Council’s approval of the Amended Plan
and development agreement. Although we find that the Citizens
have standing to challenge the Council’s decision, we conclude
that the County’s failure to transmit a record of the proceedings
prevents the district court from reviewing both whether Ordinance
454 is a legislative act and whether it was legal under the
appropriate standard of review.
I. THE CITIZENS HAVE STANDING TO CHALLENGE THE COUNCIL’S PASSAGE
OF ORDINANCE 454
¶14 Cloudrock argues that the Citizens lack standing to
challenge the Council’s passage of Ordinance 454 under both our
traditional and alternative tests. The Citizens claim standing
under both tests. Because we conclude that the Citizens have

8 Utah Code Ann. § 17-27a-101 to -803 (2009). Certain
portions of CLUDMA were amended in 2009, but since no substantive
changes were made to the provisions relevant to our disposition
of this appeal, we cite to the most recent version of the statute
in this opinion.
9 CLUDMA defines a “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.” Id. § 17-
27a-103(26).
10 Id. § 17-27a-701(2) (“As a condition precedent to
judicial review, each adversely affected person shall timely and
specifically challenge a land use authority’s decision, in
accordance with local ordinance.” (emphasis added)); id. § 17-
27a-801(2)(a) (“Any person adversely affected by a final decision
made in the exercise of or in violation of the provisions of this
chapter may file a petition for review of the decision with the
district court within 30 days after the local land use decision
is final.” (emphasis added)).
11 See Cedar Mountain Envtl., Inc. v. Tooele County, 2009 UT
48, ¶ 8, 214 P.3d 95.
12 See Utah Chapter of the Sierra Club v. Utah Air Quality
Bd., 2006 UT 74, ¶ 19, 148 P.3d 960.
No. 20080566 6
standing under our traditional test, we do not reach the parties’
arguments regarding alternative standing.
¶15 Challenges to county land use decisions are governed by
CLUDMA,8 which provides rights to both an administrative appeal
and then an appeal in the district court to any person adversely
affected by a land use authority’s9 decision.10 We have
interpreted this language to provide statutory standing that is
equivalent in scope to our traditional judicial test for
standing.11 Accordingly, a person has standing to challenge a
county’s land use decision under CLUDMA when he or she has
(1) adequately alleged a personal injury resulting from a land
use decision, (2) adequately alleged a causal relationship
between the decision and the alleged injury, and (3) requested
relief that is substantially likely to redress the alleged
injury.12
¶16 Cloudrock first contends that the Citizens lack
standing because their alleged injuries all stem from the
Council’s approval of the original development in 2002, rather
than the Council’s more recent approval of the amended
development through Ordinance 454. Cloudrock asserts that “the

13 In addition to injuries resulting from the Cloudrock
Development’s impact on the quantity and quality of water
available from the aquifer, the Citizens also claimed, in their
proposed amended complaint, that the development would decrease
their property values and result in various injuries to specific
types of businesses. Because we find their allegations of injury
relating to water quality and quantity to be sufficient to confer
standing, we do not address their other allegations of injury.
7 No. 20080566
2007 ordinance does not result in an increased impact on the
quality or quantity of water because it does not change the
number of ERU in the development over that approved in 2002.”
Cloudrock argues that because the Citizens’ only allegations of
injury relate to the impact of the development on the water
supplied from the Glen Canyon Aquifer, and because the impact on
the water supply (as measured by ERU) remains the same, there is
no causal connection between the Citizens’ alleged injuries and
the approval of Ordinance 454. Instead, Cloudrock asserts that
the Citizens’ challenge is simply a belated and improper attack
on the 2002 approval, which had already been upheld in the face
of an earlier challenge.
¶17 The Citizens respond by setting forth specific ways in
which the development would impact them directly, including
impacts other than those on the quality and quantity of water
available to them through the Glen Canyon Aquifer.13 They also
claim that “Ordinance 454 has a new and different impact,” and
that “absent Ordinance 454, Cloudrock’s amended development could
not go forward.” They argue that “[b]y seeking to amend earlier
development approvals, Cloudrock once again put these matters at
issue, subjecting its application to objection and challenge by
those adversely affected.”
¶18 We agree with the Citizens’ position. Ordinance 454
was not just a collection of individual amendments to the
development agreement approved by the Council in 2002. Rather,
it “approve[d] the [Cloudrock] Preliminary [Planned Unit
Development] and Master Plan as proposed, and the Amended and
Restated [Cloudrock] Development Agreement.” Ultimately, even
though a number of the provisions in the amended development
agreement remained unchanged from those approved by the Council
in 2002, it was the entire amended agreement that was presented
to, voted on, and adopted by the Council. The agreement itself
specifies that by executing the agreement, “[t]he Parties desire
to amend and restate in its entirety the Development Agreement.”
¶19 In essence, Ordinance 454 replaced the original
development agreement with the amended development agreement.

14 2006 UT 74, 148 P.3d 960.
15 Id. ¶ 20 (quoting Jenkins v. Swan, 675 P.2d 1145, 1150
(Utah 1983)).
No. 20080566 8
And when the amended development agreement was substituted for
the original development agreement, it, rather than the original
agreement, became the operative source of the Citizens’ alleged
injuries, thus creating the requisite causal connection.
Accordingly, we conclude that the Citizens’ alleged injuries stem
from the Council’s approval of Ordinance 454 rather than the 2002
approval of the original development agreement. We next analyze
Cloudrock’s contention that the alleged injuries are insufficient
to satisfy our traditional standing test.
¶20 Cloudrock argues that, even if the Citizens’ alleged
injuries stem from the approval of Ordinance 454, these injuries
are insufficiently personal and particularized to confer
standing. Cloudrock contends that the Citizens have not alleged
a personal and particularized injury, but rather have alleged
nothing more than injuries that are common to everyone who lives
within the water district served by the Glen Canyon Aquifer.
¶21 Cloudrock’s argument reflects a common misconception of
the nature of our standing requirements--one that we attempted to
clarify in our decision in Utah Chapter of the Sierra Club v.
Utah Air Quality Board.14 In that case, we rejected the
contention that plaintiffs who allege they have been injured in a
personal way lack standing merely because others have suffered,
or will suffer, a similar injury. Referring to the purpose
underlying our standing requirements--ensuring that plaintiffs
have “‘a real and personal interest in the dispute’” such that
they will be incentivized to fully develop the relevant issues
before the court15--we stated:
By claiming injuries to their health,
property, and recreational activities,
[plaintiffs] have shown that they have a
particularized stake in the outcome of the
dispute. While these concerns may be shared
by many who live in [the area] . . . ,
[plaintiffs] have not complained about the
impact of the plant’s emissions on the
community in general, but have claimed that
the emissions will directly affect them and
their families. In other words, they are
alleging private, rather than public,
injuries. That others may also share their

16 Id. ¶ 24.
17 Utah Code Ann. § 17-27a-801(3)(b) (2009).
9 No. 20080566
concerns and be subject to the same specific,
individualized injuries does not make the
potential harms any less personal to
[plaintiffs].16
¶22 Here, the Citizens have alleged that the amended
development will result in dangerous increases of pollution in
the water delivered to their property--water they drink and use
to cook and clean. This allegation of a direct and personal
impact is sufficient to create the personal stake that our
standing requirements demand. Because the Citizens have alleged
personal, particularized injuries resulting from the Council’s
approval of the amended development, and because it is clear that
a ruling reversing the Council’s decision would redress the
Citizens’ alleged injuries by prohibiting the development, we
hold that they have standing to challenge the Council’s decision
to approve Ordinance 454. We now turn to the merits of their
challenge.
II. BECAUSE THE COUNTY FAILED TO TRANSMIT A RECORD, THE DISTRICT
COURT IMPROPERLY REACHED THE MERITS OF THE CITIZENS’ CLAIMS
¶23 The Citizens argue that the district court lacks
jurisdiction to review the Council’s action because the Council’s
approval of Ordinance 454 was administrative in nature and
because Grand County failed to transmit a record of the
proceedings before the Council as required by statute.
Alternatively, the Citizens contend that, if we find that
Ordinance 454 was legislative in nature, the Council’s decision
should be reversed for failure to satisfy numerous technical
statutory requirements.
¶24 Cloudrock responds by asserting that the district court
correctly found that Ordinance 454 was legislative in nature.
And, given that CLUDMA requires a reviewing court to uphold any
land use decision when it is “reasonably debatable” that the
decision serves a legitimate land use purpose,17 Cloudrock argues
that the district court correctly concluded that it could uphold
the Council’s decision without a transmitted record of the
proceedings below. Finally, Cloudrock argues that, even if Grand
County was obligated to transmit a record to the district court,
its failure to do so does not justify reversal because the
Citizens have failed to show how they were prejudiced by the lack
of a transmitted record.

18 Id.
19 Id. § 17-27a-801(7)(a).
No. 20080566 10
¶25 Because we determine that the County’s failure to
transmit a record prevented review by the district court, we do
not reach the merits of the parties’ arguments regarding whether
Ordinance 454 was legislative in nature and whether the Council
erred in approving it. Although we do not conclude that the lack
of a record divests the district court of jurisdiction over the
Citizens’ appeal, we determine that the transmission of a record-
-when one exists--is a prerequisite to review of any land use
decision. We further hold that the County’s acknowledged failure
to transmit the record to the district court may not be excused
based upon a harmless error analysis. Accordingly, we remand to
the district court for transmission of the record and resolution
of the Citizens’ challenge on its merits.
A. CLUDMA Requires Transmission of a Record by a Land Use
Authority in Every Case Where a Record Is Available
¶26 The Citizens first argue that the district court should
have required the County to transmit the record of the
proceedings below. The district court found that Ordinance 454
was a legislative decision, which it was required to uphold so
long as “it is reasonably debatable that the decision . . .
promotes the purposes of [CLUDMA].”18 In light of this finding,
the court concluded that it did “not have to review a record to
determine whether there is no basis for the [Council’s]
decision.”
¶27 The Citizens contend that there is nothing in the plain
language of CLUDMA that excepts legislative land use decisions
from the general requirement that a record be provided to the
reviewing court. CLUDMA states that “[t]he land use authority
. . . shall transmit to the reviewing court the record of its
proceedings.”19 Accordingly, the Citizens assert that in every
case where a record exists that may be transmitted, CLUDMA
requires its transmission to the reviewing court.
¶28 Cloudrock argues that the district court correctly
concluded that it did not require a record to review the
Council’s decision because (1) CLUDMA does not expressly require
a record when reviewing a legislative land use decision; (2) a
record is not required given the highly deferential standard of
review--whether “it is reasonably debatable that the decision

20 Id. § 17-27a-801(3)(b).
21 Id. § 17-27a-801(8)(b).
22 Id. § 17-27a-801-(7)(a).
23 See LPI Servs. v. McGee, 2009 UT 41, ¶ 11, 215 P.3d 135.
24 Utah Code Ann. § 17-27a-801(3)(b).
25 Id. § 17-27a-801(3)(d).
11 No. 20080566
. . . promotes the purposes of [CLUDMA]”20--applicable to
legislative land use decisions; and (3) the provision of CLUDMA
authorizing a court to “call witnesses and take evidence” when
there is no record available21 shows that the legislature did not
contemplate that transmission and review of a record would be
required in all cases.
¶29 We are persuaded by the Citizens’ position. The
language of CLUDMA clearly requires that a record “shall” be
transmitted to the reviewing court and contains no exceptions.22
We find unpersuasive Cloudrock’s contention to the contrary,
which rests on its own conception of the usefulness of a record
in reviewing legislative land use decisions and tenuous
inferences it draws from related statutory provisions.
¶30 Although Cloudrock may be correct that review of a
legislative land use decision under the “reasonably debatable”
standard may not always require resort to a record, there are
times in which a record may be useful even under such a
deferential standard. For example, when the plain text of a
legislative land use decision is ambiguous as to the decision’s
effect, the record may be necessary to clarify legislative intent
and determine the true nature of the enactment.23 And the
assessment of the actual effect of the decision is certainly a
threshold determination that must precede the assessment of
whether it is “reasonably debatable” that the decision serves a
legitimate land use purpose.
¶31 Additionally, a record is clearly helpful with respect
to the second ground for invalidating a legislative land use
decision--that the decision is “otherwise illegal.”24 A land use
decision is illegal when it “violates a law, statute, or
ordinance in effect at the time the decision was made.”25
Whether there has been compliance with specific procedural
statutory requirements, such as the provision of adequate notice
or certain documents, would require a record upon which the
district court could base factual determinations.

26 Id. § 17-27a-801(8)(b).
27 Id. § 17-27a-801(7)(a) (emphasis added).
28 Stephens v. Bonneville Travel, Inc., 935 P.2d 518, 520,
522 (Utah 1997).
29 Utah Code Ann. § 17-27a-801(3)(a) (“The courts shall: (i)
(continued...)
No. 20080566 12
¶32 Finally, the fact that CLUDMA may provide for
alternative means of obtaining evidence when a record of a
legislative decision is unavailable does not, as Cloudrock
suggests, support the conclusion that no record is required for
review. The existence of language in Utah Code section 17-27a-
801(8)(b) providing that a court may receive evidence or call
witnesses in the event that no record exists26 does not speak to
the question of what must be done when a record does exist. It
is section 17-27a-801(7) that speaks to this question, which
states only that “[t]he land use authority, or appeal authority,
as the case may be, shall transmit to the reviewing court the
record of its proceedings, including its minutes, findings,
orders and, if available, a true and correct transcript of its
proceedings.”27 When statutory language is clear, there is no
need for us to look further to determine legislative intent.28
We find the statute’s plain language to be conclusive on this
point and hold that CLUDMA requires transmission of a record to
the reviewing court in all cases--legislative or administrative--
where a record exists.
¶33 Cloudrock acknowledges that the County did not transmit
a record of the proceedings before the Council to the district
court. In proceeding to the merits of the Citizens’ challenge
without a transmitted record, the district court erred. We now
consider Cloudrock’s argument that the district court’s error
does not justify reversing its grant of summary judgment.
B. A County’s Refusal to Transmit the Record Is Reversible Error
¶34 Cloudrock argues that, even if the district court erred
by reaching the merits of the Citizens’ claims without a
transmitted record, the Citizens are not entitled to relief on
this ground because they have failed to establish that there is a
“reasonable likelihood” that the district court’s decision would
have been different had a record been transmitted by the County.
Cloudrock is correct in noting that, under CLUDMA, land use
decisions are presumed valid,29 and the party challenging the

29 (...continued)
presume that a decision, ordinance, or regulation made under the
authority of this chapter is valid . . . .”).
30 Id. § 17-27a-705.
31 See Springville Citizens for a Better Cmty. v. City of
Springville, 1999 UT 25, ¶ 31, 979 P.2d 332.
32 See, e.g., Emig v. Hayward, 703 P.2d 1043, 1048-49 (Utah
1985) (requiring a plaintiff seeking relief based on allegations
that a record was erroneously constructed to show both a defect
in the record and resulting prejudice); State v. Menzies, 845
P.2d 220, 228 (Utah 1992) (holding that “the mere existence of
[record transcription] errors does not mandate a new trial” and
that the “clear weight of authority requires a showing of
prejudice”).
33 See Whetton v. Turner, 497 P.2d 856, 858 (Utah 1972)
(stating that, where no record is available to review an
appellant’s claims, we assume that the proceedings below “have
been carried on in conformity with the law”).
34 Utah Code Ann. § 17-27a-801(7)(a).
35 Id. § 17-27a-801(8)(a)(i) (“If there is a record, the
district court’s review is limited to the record provided by the
land use authority or appeal authority, as the case may be.”).
13 No. 20080566
decision bears “the burden of proving that the land use authority
erred.”30 We have also stated in the past that the mere fact
that a land use decision violates a provision of CLUDMA does not
justify reversing the decision unless the violation was
prejudicial.31 And finally, we have repeatedly declined, in the
nonadministrative appellate context, to presume prejudice or
reversible error based on the absence of a complete record.32
Instead, when a record is so incomplete that it renders effective
review of a lower court’s action impossible, we have simply
declined to disturb the status quo.33
¶35 But a district court’s review of a county land use
decision presents a different case. First, the legislature has
specifically placed the burden of transmitting a record on the
County.34 Second, the record of a land use decision is in the
custody of the opposing party--the land use authority, who is
also the appellee. And third, CLUDMA’s provisions expressly
limit the reviewing court to considering evidence in the record
when reviewing the challenged decision.35 Taken together, these
three realities evidence a legislative intent that review of a

36 See Redevelopment Agency v. Mitsui Inv. Inc., 522 P.2d
1370, 1374 (Utah 1974).
37 We emphasize that this is an extreme measure that is only
to be employed when the land use authority utterly refuses the
reviewing court’s express request to transmit a record. Such a
ruling is not an implicit determination of error below; it is
more akin to sanctions contemplated in the default judgment and
discovery contexts. See, e.g., Utah R. Civ. P. 37(b)(2)(C), 55.
It is imposed based on one party’s refusal to comply with the
requirements upon which effective judicial review is predicated.
Before a reviewing court imposes such a sanction, the land use
authority must be (1) instructed by the court to produce the
complete record and (2) allowed an opportunity to either produce
the record (or missing portions thereof) or certify that it does
not exist. We anticipate that such a sanction will rarely be
imposed. Indeed, the question only appears to be before us in
this case by virtue of the district court’s acceptance of
(continued...)
No. 20080566 14
land use decision will involve a record and that the party
challenging the decision will not bear the burden of obtaining
and presenting that record to the court.
¶36 We would fail in our duty to give effect to this
legislative directive if we found that a land use authority’s
duty to provide a record of proceedings to the reviewing court
could only be enforced upon a showing of prejudice by the
appealing party. A party required to prove prejudice as a
prerequisite for relief bears the burden of showing that an error
was so substantial that there is a reasonable likelihood that,
absent the error, the result would have been different.36 When
the alleged error is the failure to transmit a complete record,
or, as in this case, the failure to transmit any record at all,
the party can only show prejudice by obtaining and presenting the
absent record to the court. This is directly contrary to the
legislature’s express instruction on how this burden is to be
allocated in appeals of land use decisions.
¶37 Accordingly, we hold that the statutory provision
requiring a land use authority to transmit a record of
proceedings below to the reviewing court may be enforced simply
upon a showing that the complete record has not been transmitted.
And if a land use authority refuses to provide a complete record
after a court’s express direction to do so, the reviewing court
should grant appropriate relief to the appealing party. In an
extreme case, such relief may include ruling in favor of the
appealing party on the merits of its claims.37

(...continued)
Cloudrock’s contention that transmission of a record is not
required at all when reviewing a legislative land use decision.
But the possibility of such a sanction is necessary to give
effect to the legislature’s allocation of burdens.
38 Cloudrock does not dispute that the County failed to
transmit a record to the district court. Nevertheless, because
the County did submit a letter certifying to the district court
that certain exhibits attached as exhibits to various pleadings
submitted by both parties were “true and correct copies of Grand
County’s original record,” Cloudrock contends that the County
satisfied its statutory obligation. We are skeptical that a land
use authority’s certification of documents provided by other
parties can substitute for its obligation to transmit the record.
Regardless, Cloudrock’s certification is insufficient in this
case since it appears to be incomplete, as the Citizens have
identified thirty-two separate documents that were not included
in the County’s certification. Cloudrock does not dispute that
the thirty-two documents identified by the Citizens comprise part
of the record but argues only that the Citizens’ identification
is untimely and immaterial. In light of our holding that CLUDMA
requires the County to transmit the entire record to the
reviewing court in every case, Cloudrock’s timeliness and
materiality arguments are irrelevant.
15 No. 20080566
¶38 In this case, it is undisputed that the County did not
transmit a record of the proceedings before it to the district
court.38 We remand this case back to the district court with the
instruction that the County be ordered to transmit the record of
proceedings to the district court, which will then proceed to the
merits of the Citizens’ claims in light of the transmitted
record.
CONCLUSION
¶39 We find that the Citizens have standing to challenge
the Council’s decision because they have alleged personal,
particularized injuries resulting from the Council’s approval of
Ordinance 454. We do not reach the merits of the Citizens’
claims of error, however, because we conclude that the district
court should have required the County to transmit a record of the
Council’s proceedings before addressing the Citizens’ claims. We
remand this case to the district court with the instruction to
order the County to transmit the complete record and resolve the
Citizens’ challenge on its merits.

No. 20080566 16
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¶40 Chief Justice Durham, Justice Wilkins, Justice Parrish,
and Justice Nehring concur in Associate Chief Justice Durrant’s
opinion.