Petersen v. Riverton City

2010 UT 58
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Willis Lauritz Petersen, Jr.; No. 20090095
Leslee P. Christensen; Allan
D. Petersen; Kristine Petersen
Smith; and Dean B. Petersen, as
trustees of the Margarett Park
Petersen Family Living Trust,
Petitioners and Appellants,
v.
F I L E D
Riverton City,
Respondent and Appellee. October 8, 2010
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Third District, Salt Lake
The Honorable Anthony B. Quinn
No. 070911432
Attorneys: Dale F. Gardiner, Scott M. Lilja, Cassie J. Medura,
Nichole M. Deforge, Salt Lake City, for petitioners
Jody K. Burnett, Robert C. Keller, Salt Lake City,
for respondent
---
PARRISH, Justice:
INTRODUCTION
¶1 In this case, members of the Petersen Family (the
“Petersens”) appeal the district court’s entry of summary
judgment in favor of Riverton City, which upheld the Riverton
City Council’s denial of the Petersens’ application to rezone a
20.84 acre parcel of land they own in Riverton City (the
“Property”). The Petersens argue that the district court erred
when it applied the reasonably debatable standard in reviewing
and upholding the Riverton City Council’s decision. They argue
that the substantial evidence standard should have been used to
review the denial of their application to rezone. Because we
hold that the decision to grant or deny an application for a
zoning change is a legislative decision subject to the reasonably

1 The R-22 zoning designation permits only two dwelling
units per acre as well as medium and small farm animals. The R-3
zoning designation allows three dwelling units per acre and
contemplates no specific animal rights.
No. 20090095 2
debatable standard, we affirm the district court’s grant of
summary judgment. We also affirm the district court’s denial of
the Petersens’ rule 56(f) motion for additional discovery and the
dismissal of their constitutional claims.
BACKGROUND
¶2 The Petersens own 20.84 acres of land in Riverton City.
In 2007, the Petersens entered into a contract with a developer,
D.H. Horton, to sell the Property for $5.5 million contingent on
the ability to rezone it. In May of 2007, D.H. Horton submitted
an application to the Riverton City Council (the “Council”) to
rezone the Property from an RR-22 designation to an R-3
designation.1
¶3 In June 2007, the Riverton City Planning Commission
(the “Commission”) held a public hearing to consider the rezoning
request. At the hearing, the Commission noted that the proposed
change would be consistent with Riverton City’s General Plan but
entertained several public comments in opposition to the zoning
change. Local citizens raised concerns about the impact on the
ability to raise large farm animals in the area, the potential
for increased traffic, and the desire to not increase the
existing housing density in order to maintain the rural character
of the area. During the hearing, there was also a discussion
about selling part of the Property to Riverton City for a
retention pond and one councilman expressed a personal opinion
that the change would constitute “spot-zoning.” Ultimately, the
Commission voted to recommend denial of the application to the
Council.
¶4 In July 2007, the Council held a public hearing to
consider the rezoning application. The Council staff pointed out
at the hearing that the Property is surrounded on three sides by
the original R-22 zoning classification, that either an R-3
designation or an R-22 designation complied with the General
Plan, and that the Planning Commission had recommended the denial
of the application. There were also public comments made
regarding the proposed rezoning that were similar in character to
those made at the Commission hearing. All of the public comments
were in opposition to the rezoning request. The Council also
discussed the proposed sale of part of the Property to the City

3 No. 20090095
for a retention pond. The Council ultimately voted to deny the
rezoning application.
¶5 The Petersens timely filed a Petition for Judicial
Review of a Land Use Decision with the district court. The
Petersens argued that there was no substantial evidence in the
record to support the denial of their rezoning request.
Furthermore, in their reply to the City’s motion for summary
judgment, the Petersens alleged that the Council violated the
Petersens’ constitutional rights when the Council treated them as
a “class of one,” differently from other similarly situated
property owners in violation of their equal protection rights and
that the hearing did not comport with due process. The district
court dismissed these arguments and granted Riverton City’s
motion for summary judgment. In so doing, it applied the
reasonably debatable standard of review to the Council’s decision
and held that it was not arbitrary, capricious, or illegal
because there was a reasonable basis for it.
¶6 On appeal to this court, the Petersens argue that the
district court erred when it applied the highly deferential
reasonably debatable standard of review. Instead, they assert
that the district court should have applied the substantial
evidence standard because the Council’s decision was quasi-
judicial in nature. In the alternative, they argue that even if
we hold that the reasonably debatable standard applies, the
Council’s decision was arbitrary because it was made solely on
the basis of a desire to drive down the value of the property, a
portion of which Riverton City desired to purchase for a
retention pond.
¶7 The Petersens also argue that the district court erred
when it dismissed their constitutional claims and when it denied
their rule 56(f) motion for additional discovery. We have
jurisdiction pursuant to Utah Code section 78A-3-102(3)(j)
(2008).
STANDARD OF REVIEW
¶8 “We review a district court’s decision to grant summary
judgment for correctness, granting no deference to the district
court’s conclusions . . . .” Bodell Constr. Co. v. Robbins, 2009
UT 52, ¶ 16, 215 P.3d 933. A municipality’s decision to deny a
rezoning request presents a question of law that we also review
for correctness. See Bradley v. Payson City Corp., 2003 UT 16,
¶ 9, 70 P.3d 47.

No. 20090095 4
ANALYSIS
I. THE DISTRICT COURT CORRECTLY APPLIED THE REASONABLY DEBATABLE
STANDARD BECAUSE THE COUNCIL’S DECISION TO DENY THE REZONING
REQUEST WAS LEGISLATIVE
¶9 The Utah Legislature has articulated the standards that
a court must apply when reviewing municipal land use decisions in
Utah Code section 10-9a-801 (2007):
(3)(a) The courts shall:
(I) presume that a decision, ordinance,
or regulation made under the authority
of this chapter is valid; and
(ii) determine only whether or not the
decision, ordinance, or regulation is
arbitrary, capricious or illegal.
(b) A decision, ordinance, or regulation
involving the exercise of legislative
discretion is valid if it is reasonably
debatable that the decision, ordinance,
or regulation promotes the purposes of
this chapter and is not otherwise
illegal.
(c) A final decision of a land use
authority or an appeal authority is
valid if the decision is supported by
substantial evidence in the record and
is not arbitrary, capricious, or
illegal.
¶10 This court has consistently held “that the enactment
and amendment of zoning ordinances is fundamentally a legislative
act.” Bradley v. Payson City Corp., 2003 UT 16, ¶ 11, 70 P.3d 47
(citing Sandy City v. Salt Lake Cnty., 827 P.2d 212, 221 (Utah
1992)); see also Scherbel v. Salt Lake City Corp., 758 P.2d 897,
899 (Utah 1988). The wisdom behind these holdings is that “[t]he
political nature of the decision making process underlying
municipal zoning demands that the power to make such decisions be
vested in persons who are publicly accountable for their
choices.” Bradley, 2003 UT 16, ¶ 11. Furthermore, “[i]t is the
policy of this court as enunciated in its prior decisions that it
will avoid substituting its judgment for that of the legislative
body of the municipality.” Id. ¶ 12. Given this court’s
hesitation to substitute its judgment for that of a municipality,
we apply the highly deferential reasonably debatable standard
when reviewing a municipality’s zoning decision.

5 No. 20090095
¶11 The Petersens urge us to overrule this long line of
precedent and hold that the Council was acting in a quasi-
judicial capacity when it denied their rezoning request and,
therefore, that the district court should have applied the
substantial evidence standard in reviewing the decision. We
decline to do so. The case law and statutory authority on which
the Petersens rely in making this argument is inapposite because
it involves municipal appeal authorities hearing requests for
variances and interpreting and applying existing zoning
ordinances. See, e.g., Xanthos v. Bd. of Adjustment, 685 P.2d
1032, 1034-35 (Utah 1984) (reviewing whether the board of
adjustment’s denial of a zoning variance was arbitrary and
capricious by applying the substantial evidence standard); Brown
v. Sandy City Bd. of Adjustment., 957 P.2d 207, 210-11 & n.5
(Utah Ct. App. 1998) (reviewing the Board’s interpretation of a
zoning ordinance). The administrative bodies in these cases have
been created specifically for the purpose of applying existing
ordinances and evaluating the possibility of individual
variances. These tasks are not of the same character as the
Petersens’ request to amend an existing zoning ordinance in its
entirety. Therefore, because we see no reason to depart from our
precedent, we hold that the Council’s denial of the Petersens’
rezoning request was a legislative decision.
¶12 Having determined that the district court in this case
was reviewing a legislative decision under the reasonably
debatable standard, we must now determine whether the district
court was correct in holding that the City’s decision was, in
fact, reasonably debatable. A municipal board’s decision will
meet this standard if “it is reasonably debatable that the
[decision to grant or deny the new ordinance] is in the interest
of the general welfare.” Bradley, 2003 UT 16, ¶ 14 (internal
quotation marks omitted).
¶13 In Bradley v. Payson City Corp., we were faced with
facts very similar to the facts in this case. The plaintiffs in
Bradley submitted an application to the City Council to rezone
property from a low-density residential classification to a high-
density classification. Id. ¶¶ 2-3. The Planning Commission
recommended a denial of the application to the City Council
despite a recognition that Payson City’s General Plan did not
prohibit the type of rezoning requested. Id. ¶¶ 3-4. At the
City Council hearing to consider the application, there were a
number of public comments expressing concern over the traffic
implications of the proposed zoning ordinance and the ability to
keep and raise horses “which might be incompatible with high-
density residential development.” Id. ¶ 29. The City Council
ultimately denied the application based in part on these public
comments. See id. ¶ 5.

No. 20090095 6
¶14 In upholding the City’s denial of the application under
the reasonably debatable standard, we recognized that “public
hearings and citizen comments are a legitimate source of
information for city council members to consider in making
legislative decisions.” Id. ¶ 28. We also stated that “we
[were] satisfied that Payson City’s consideration of public
comments as a justification for its zoning decision reflects a
reasonable judgment that properly took into account citizens’
concerns.” Id. ¶ 29.
¶15 As was the case in Bradley, at the Riverton City
Council’s hearing on the Petersens’ application for rezoning of
their Property, there were public comments made in opposition to
the proposed change. These comments expressed concern about
increases in traffic, the ability to continue to raise large farm
animals, and the loss of the City’s character. The Council
properly considered these citizens’ concerns in deciding to deny
the Petersens’ application. The discussions of “spot zoning” and
the City’s desire to buy part of the Property for a retention
pond are irrelevant so long as the record reflects a reasonable
basis for the decision. “In reviewing the city council’s
decision, we do not apply trial-like formal rules of procedure or
evidence . . . . Rather, we presume that city council members
will measure public comments against their own personal knowledge
of the various conditions in the city that bear upon zoning
decisions.” Id. ¶ 28 (citation omitted) (internal quotation
marks omitted). The decision must simply be reasonably debatable
after consideration of all the evidence in favor of and against
the proposed change. In this case, there was clearly a
reasonable basis for the Council to deny the Petersens’
application.
¶16 In summary, we decline the Petersens’ invitation to
overrule our prior cases and reaffirm that a decision to amend or
enact a zoning ordinance is a purely legislative decision. Such
decisions are subject to a reasonably debatable standard of
review. In this case, the Council’s decision was reasonably
debatable and we therefore uphold the district court’s grant of
summary judgment to the City.
II. THE PETERSENS’ EQUAL PROTECTION RIGHTS HAVE NOT BEEN
VIOLATED BECAUSE THEY HAVE FAILED TO SHOW ANY EVIDENCE OF MALICE
OR BAD FAITH BY THE COUNCIL
¶17 “The Fourteenth Amendment forbids any person acting
under color of state law from depriving an individual of the
equal protection of the laws.” Patterson v. Am. Fork City, 2003
UT 7, ¶ 29, 67 P.3d 466. To prove an equal protection violation,

7 No. 20090095
a plaintiff “must demonstrate that she was treated differently
than another person similarly situated and that the unequal
treatment was based upon an impermissible consideration, such as
race, or that the selective treatment resulted from a malicious
or bad faith intent.” Gardner v. Bd. of County Comm’rs, 2008 UT
6, ¶ 38, 178 P.3d 893. Because the Petersens cannot claim any
unequal treatment based on race or other similar impermissible
considerations, they must show that the alleged unequal treatment
was based on a malicious or bad faith intent by the Council.
¶18 In attempting to prove that the Council violated their
equal protection rights, the Petersens rely on the “class of one”
theory established in Village of Willowbrook v. Olech, 528 U.S.
562 (2000). We recognized this theory in Patterson v. American
Fork City, where we held that in order to be successful under a
“class of one theory, the plaintiff must present evidence that
the defendant deliberately sought to deprive him of the equal
protection of the laws for reasons of a personal nature unrelated
to the duties of the defendant’s position.” 2003 UT 7, ¶ 33
(internal quotation marks omitted). In other words, “what is
required is a showing of a totally illegitimate animus toward the
plaintiff by the defendant.” Id. (internal quotation marks
omitted).
¶19 In Patterson, the plaintiffs alleged they were
discriminated against when the city refused to approve their
development plans or grant their rezoning request. 2003 UT 7,
¶¶ 22, 24. We dismissed the plaintiffs’ equal protection claim
because the plaintiff’s could not show they were subject to
“intentional discrimination grounded in personal animus.” Id.
¶ 34.
¶20 Likewise, the Petersens cannot show that the Council
treated them unequally as a result of intentional discrimination
grounded in personal animus. There is no evidence in the record
that the Council maliciously singled them out or based the denial
on factors unrelated to the Council’s governmental duty. Rather,
the Council had several reasonable bases upon which it denied the
Petersens’ application for rezoning: the fact that the Property
was surrounded on three sides by the R-22 classification, the
negative public comments, and the desire to maintain the original
zoning classification. Furthermore, the Petersens’ reliance on
Gardner v. Board of County Commissioners is misplaced because, in
that case, the alleged discrimination was the result of a newly
imposed ordinance--not the refusal to change an existing
ordinance. See 2008 UT 6, ¶ 39, 178 P.3d 893. This is an
important distinction. Unlike the imposition of a new ordinance,
which may be motivated by an improper motive, a decision to
maintain the status quo may, in most cases, be justified by the

2 The Petersens also argue that they were denied their
procedural due process rights at the Council’s hearing. They
allege that the Council did not have the discretion to “reject
applications which otherwise meet the requirements of its
ordinances and General Plan” and that the Council was motivated
by the desire to drive down the price of the Property to purchase
a portion of it at a lower price. These arguments do not
persuade us that a procedural due process violation has occurred.
This is especially true in light of the fact that the Council’s
discretion is only limited by the reasonably debatable standard
in making legislative decisions, see Utah Code Ann. § 10-9a-801
(3)(b) (2007), and that maintaining an existing ordinance does
not constitute “driving down” the price of the Property. As we
have discussed, there was a reasonable basis for the Council’s
decision and no evidence of bad faith or procedural defect in the
(continued...)
No. 20090095 8
same reasons that prompted the original enactment. Gardner is
therefore inapplicable to the Petersens’ argument because the
Council was simply reaffirming an existing ordinance, not
enacting a new one. Because the Petersens cannot show that the
Council acted maliciously or in bad faith, their equal protection
claim must fail.
III. THE PETERSENS’ DUE PROCESS CLAIM FAILS BECAUSE THEY CANNOT
SHOW THEY HAVE A PROTECTABLE PROPERTY INTEREST
¶21 The Petersens also assert a claim for violations of due
process. Like their equal protection claim, this claim fails.
“‘To state a cognizable substantive [or procedural] due process
claim, [plaintiffs] must first allege sufficient facts to show a
property or liberty interest warranting due process protection.’”
Patterson v. Am. Fork City, 2003 UT 7, ¶ 23, 67 P.3d 466 (second
alteration in original) (quoting Crider v. Bd. of Cnty. Comm’rs,
246 F.3d 1285, 1289 (10th Cir. 2001)); see also Hyde Park Co. v.
Santa Fe City Council, 226 F.3d 1207, 1210 (10th Cir. 2000)
(“[T]o 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.”
(citation omitted)). The United States Supreme Court has defined
a property interest “as a ‘legitimate claim of entitlement’ to
some benefit.” Hyde Park Co., 226 F.3d at 1210 (quoting Bd. of
Regents v. Roth, 408 U.S. 564, 577 (1972)).
¶22 The Petersens argue that their protectable property
interest lies in the expectation--based on representations made
by the City--that their application for rezoning would be
granted.2 However, “[a]n abstract need for, or unilateral

2 (...continued)
Council’s hearing. Thus, the Petersens have failed to state a
cognizable procedural due process claim.
3 The Petersens allege that the Council impermissibly
sought to drive down the price of the Petersens’ land so that
Riverton City could obtain it for a decreased price. This
argument is wholly without merit. The Council has simply
maintained an original zoning classification. This passive
action alone does not indicate a desire to reduce the value of
the Petersens’ Property. The case on which the Petersens rely in
support of their argument is inapplicable because it involved a
situation where a city enacted a new zoning ordinance. See
Robertson v. City of Salem, 191 F.Supp 604, 607-08 (D. Or. 1961).
This is not the same as the Riverton City Council refusing to
enact a change to an ordinance already in effect.
9 No. 20090095
expectation of, a benefit does not constitute ‘property.’” Id.
Rather, 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.” Id. (internal quotation marks
omitted).
¶23 In Hyde Park Co., the U.S. Court of Appeals for the
Tenth Circuit held that the plaintiff did not have a protectable
property interest in the approval of its proposed plat because
“the applicable ordinances read as a whole fail[ed] to place any
discernible substantive limitations on the City Council’s
discretion in [the] matter.” Id. at 1212. Thus, the city
council had complete discretion to approve or disapprove the
proposed plat and the plaintiff only had a unilateral expectation
of approval. Id. Similarly, the Riverton City Council had
complete discretion in making a legislative decision to approve
or deny an application for rezoning. We have not found, nor do
plaintiffs point to, any City ordinances that limit the Council’s
discretion in zoning matters.3 The Petersens have alleged that
City employees made representations that the City would grant
their application, but this alone does not establish a
protectable property interest.
¶24 Furthermore, the Petersens’ reliance on Nasierowski
Bros. Investment Co. v. City of Sterling Heights, 949 F.2d 890
(6th Cir. 1991), to show they were deprived of due process is
misplaced. In Nasierowski, the city changed the existing zoning
ordinances, which halted the plaintiff’s development that would
have been allowed under the previous ordinances. Id. at 897.
Because the city did this without giving the plaintiff an

No. 20090095 10
opportunity to oppose the change and the plaintiff had expended
considerable time, money, and effort in reliance on the previous
ordinances, the court held that the “[plaintiff] had a property
interest in the old zoning classification within which his
development was permitted.” Id. In contrast here, the City did
nothing to change the existing zoning ordinances applicable to
the Property. Therefore, the Petersens did not take actions or
expend time and money similar to the plaintiff in Nasierowski.
Their unilateral expectation of a zoning change simply does not
rise to the level of a protectable property interest and
accordingly, their due process claim fails.
IV. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN DENYING
THE PETERSON’S REQUEST FOR ADDITIONAL DISCOVERY BECAUSE ITS
REVIEW WAS LIMITED TO THE RECORD
¶25 The Petersens also argue that the district court
erroneously denied their request for additional discovery under
rule 56(f) of the Utah Rules of Civil Procedure. We apply an
abuse of discretion standard in reviewing the denial of a rule
56(f) motion and overturn it only if the denial of the motion
“exceed[s] the ‘limits of reasonability.’” Price Dev. Co. v.
Orem City, 2000 UT 26, ¶ 9, 995 P.2d 1237 (quoting Crossland Sav.
v. Hatch, 877 P.2d 1241, 1243 (Utah 1994)).
¶26 In this case, the Petersens filed a “Petition for
Review of a Land Use Decision” in the district court. Upon a
request for review of a municipality’s land use decision, “the
district court’s review is limited to the record provided by the
land use authority or appeal authority.” Utah Code Ann. § 10-9a-
801(8)(a)(I) (2007). The only two exceptions to this rule are
that a district court may review evidence if it was improperly
excluded in the proceeding below or, if there was no record
created, “the court may call witnesses and take evidence.” See
id. § 10-9a-801(8)(a)-(b).
¶27 The Petersens do not argue that either exception
applies here. Instead, they assert that the limitations imposed
by Utah Code section 10-9a-801(8)(a) do not apply to
constitutional challenges. We disagree. Parties like the
Petersens have two options when confronted with an unfavorable
municipal land use decision. They can either file a petition for
review pursuant to Utah Code section 10-9a-801, or they may file
a complaint against the land use authority, which may include a
variety of claims, including constitutional claims. In the first
instance, the party is limited to the evidence available in the
administrative record. See id. § 10-9a-801(8)(a). In the second
instance, the party is not statutorily limited to the record and
may conduct discovery. In this case, the Petersens chose to

11 No. 20090095
pursue the first option and filed a Petition for Judicial Review
of a Land Use Decision. As a result, the district court was
statutorily obligated to limit its review of the land use
decision to the record. The district court did not abuse its
discretion by denying the rule 56(f) motion because further
discovery would have been meaningless when the court could not
have considered it. In fact, a decision to grant the motion for
further discovery would have been inconsistent with the statutory
directive.
¶28 The cases the Petersens cite in support of their
argument actually bolster our conclusion that additional
discovery would only have been proper if the Petersens had filed
a complaint, rather than a petition for review. In Greenway Dev.
Co. v. Borough of Paramus, 750 A.2d 764 (N.J. 2000), and in
Heughs Land L.L.C. v. Holladay City, 2005 UT App 202, 113 P.3d
1024, the parties filed separate complaints alleging
constitutional takings. The courts held that the notice
provisions of the Governmental Immunity Act could not bar the
plaintiffs’ claims and that they could continue with discovery.
Greenway Dev. Co., 750 A.2d at 766, 770; Heughs Land, L.L.C.,
2005 UT App 202, ¶ 3.
¶29 The Petersens also cite to Springville Citizens for a
Better Community. v. City of Springville, 1999 UT 25, 979 P.2d
332, to support their argument. In that case, however, the court
did not even reach the constitutional issues raised by the
plaintiffs because they were inadequately briefed. Id. ¶ 20 n.2.
The question before the court was whether the City’s approval of
a Planned Unit Development was arbitrary, capricious, or illegal.
Id. ¶ 20. To answer this question, the court looked only at the
record and did not reach the issue of discovery. See id. ¶ 24
(“[W]e review the evidence in the record to ensure that the City
proceeded within the limits of fairness and acted in good
faith.”). Thus, none of the authority presented by the Petersens
convinces us that the district court abused its discretion when
it denied their rule 56(f) motion. We accordingly uphold the
district court’s order.
CONCLUSION
¶30 We decline to overrule our precedent establishing that
a municipality’s zoning decision is legislative and that review
of such a decision is subject to a reasonably debatable standard.
We uphold the district court’s grant of summary judgment in favor
of Riverton City on the basis that the Council’s decision to deny
the Petersens’ application to rezone their Property was
reasonably debatable and therefore proper. We also affirm the
district court’s order dismissing the Petersens’ equal protection

No. 20090095 12
and due process claims because they cannot show that the Council
acted with malice or bad faith and they do not have a protectable
property interest in the proposed rezoning. Finally, we uphold
the district court’s decision to deny the Petersens’ request for
additional discovery. The district court’s order is affirmed in
all respects.
---
¶31 Chief Justice Durham, Associate Chief Justice Durrant,
Justice Nehring, and Judge Shumate concur in Justice Parrish’s
opinion.
¶32 Due to his retirement, Justice Wilkins did not
participate herein; District Judge James L. Shumate sat.