VR CPC Holdings v. Park City Municipal Corp

2025 UT App 130
THE UTAH C OURT OF APPEALS
VR CPC HOLDINGS I NC .,
Appellant,
v.
PARK C ITY M UNICIPAL C ORPORATION ,
Appellee,
C LIVE BUSH , A NGELA M OSCHETTA, AND M ARK S TEMLER ,
Intervenors and Appellees.
Opinion
No. 20240065-CA
Filed August 28, 2025
Third District Court, Silver Summit Department
The Honorable Richard E. Mrazik
No. 220500240
Brent N. Bateman, Tyler R. Cahoon, Kathryn A.
Reilly, and Ryan W. Cooke, Attorneys for Appellant
Lara A. Swensen and Mitchell A. Stephens,
Attorneys for Appellee
H. Craig Hall, Hyrum J. Bosserman, and Kimberly A.
Smith, Attorneys for Intervenors and Appellees
JUDGE D AVID N. M ORTENSEN authored this Opinion, in which
JUDGES GREGORY K. O RME and A MY J. O LIVER concurred.
MORTENSEN, Judge:
¶1 	VR 	CPC 	Holdings 	Inc., 	doing 	business 	as 	Park 	City
Mountain 	(the 	Resort), 	attempted 	to 	use 	an 	expedited
administrative process to obtain conditional approval of an
alteration to its ski lifts through an administrative conditional use
permit (ACUP). In contrast to the normal process for obtaining a
conditional use permit, the ACUP allows for approval by the Park

VR CPC Holdings v. Park City
20240065-CA 	2 	2025 UT App 130
City Planning Director (the Director), subject to review by the
Park City Planning Commission (the Commission). Initially, the
Resort’s effort succeeded when the Director approved the Resort’s
ACUP 	application, 	but 	some 	local 	citizens 	intervened 	and
challenged 	the 	approval 	before 	the 	Commission. 	The
Commission, on its review, concluded that the Resort had not met
the requirements to utilize the ACUP process and therefore
denied the Resort’s request. The Resort then sought review in the
district court. The district court concluded that the Commission
had not acted arbitrarily or capriciously in deciding that the
Resort had not met the requirements to employ the ACUP
process. Now, reviewing the matter independently, we reach the
same conclusion as the district court and affirm.
BACKGROUND
¶2 	Park City Municipal Corporation (Park City) has enacted
the Land Management Code (the Code), which governs land use
within the city. Under the Code, before a landowner can develop
a conditional use, it must apply for and obtain a conditional use
permit. Park City, Utah, Land Management Code §§ 15-1-8, -10.
Typically, the Commission reviews proposed conditional uses
and, after a public hearing, determines if the proposed use
complies with the Code. Id. § 15-1-10. But the Code provides an
alternative 	route 	for 	conditional 	use 	approval—the 	ACUP
process. Under this alternative route, the Director considers and
rules on conditional use applications instead of the Commission,
but the Director’s decision is still subject to the Commission’s
review. Id. §§ 15-1-10, -11.
¶3 	In 1998, Park City entered into a Development Agreement,
which incorporated an existing Mountain Upgrade Plan (the
Upgrade Plan) with the Resort. The Development Agreement
grants the Resort “a vested right to develop” its ski resort in
accordance 	with 	the 	Development 	Agreement’s 	terms. 	The
Upgrade Plan sets forth a “lift upgrading program,” which

VR CPC Holdings v. Park City
20240065-CA 	3 	2025 UT App 130
contemplates the “replacement and/or reconfiguration of several
. . . existing lifts” to “[m]odernize lifts and balance them with the
available downhill terrain” and to “improve out-of-base lift
capacity . . . and overall skier circulation.”
¶4 	Under the Development Agreement, “[d]evelopment of
the skiing and related facilities as identified in the [Upgrade Plan]
is a conditional use” and is “subject to administrative review and
approval.” Under the Development Agreement, the Resort can
successfully use the expedited ACUP process as long as the
application satisfies six criteria. The anticipated process entails the
Director’s review of an ACUP application to determine whether
the proposed use meets each of the six criteria. If the Director
determines that an application satisfies the six criteria, the use
may be approved. At issue in this case are Criterion One and
Criterion Six.
¶5 	Criterion One requires,
Consistency with the [Upgrade Plan]. The selection
of 	lift 	transportation 	type 	shall 	be 	at 	the 	sole
discretion of the Developer.
Criterion Six requires,
At all times Developer shall assure that it has
adequate parking or has implemented such other
assurances, as provided in the Parking Mitigation
Plan, 	to 	mitigate 	the 	impact 	of 	any 	proposed
expansion of lift capacity.
¶6 	In 2022, the Resort applied for an ACUP to replace one lift
and upgrade another. As a part of its application, the Resort
submitted 	information 	regarding 	the 	comfortable 	carrying
capacity (CCC) of the ski operation at the Resort and how the CCC
would be impacted by the proposed improvements. The Resort
stated in its application that the “CCC is a number that describes

VR CPC Holdings v. Park City
20240065-CA 	4 	2025 UT App 130
the comfortable daily carrying capacity of the ski lifts at a ski area,
expressed in the unit ‘skiers per day.’” And the Resort stated, that
“the CCC calculation is simply a model that describes the
theoretical capacity of the ski area that would provide a good
skier experience.” The Upgrade Plan approved a maximum CCC
of no more than 13,700 for the Resort. According to the Resort’s
application 	and 	supplemental 	materials, 	the 	proposed
improvements would increase the Resort’s overall CCC by 2.5%—
from 12,570 to 12,860.1 However, the Resort maintained that there
would be “no impact to parking associated with [the upgraded]
lifts” because “[a]n increase in CCC [would] not directly cause an
increase in business or in demand.”
¶7 	The Director reviewed the Resort’s application. According
to the Resort, the Director “analyzed [its] application for over
three months”; “required [the Resort] to develop a transformative
Parking Mitigation Plan [and] retain an outside consultant, in
addition to the two consultants the [Resort] had previously
retained”; “sought public comments”; “reviewed input”; and
“held a lengthy public hearing.”
¶8 	As for the Parking Mitigation Plan, the Director explained
in her approval of the ACUP, “Although [the Resort’s] analysis of
increased CCC does not indicate there will be an increase in
parking demand associated with the proposed lift upgrades, [the
Resort] was required to submit a Parking Mitigation Plan”
pursuant 	to 	the 	Development 	Agreement 	and 	section 	15-4-
18(B)(6) 	of 	the 	Code. 	The 	Resort’s 	Parking 	Mitigation 	Plan
consisted of a document outlining the new paid parking system
that the Resort’s experts asserted would decrease parking needs
by 11% through increasing average vehicle occupancy (AVO) and
encouraging public transit use. The Parking Mitigation Plan
included a spreadsheet that lists the parking needs for the Resort
1. An increase from 12,570 to 12,860 represents a 2.3%—not a
2.5%—increase.

VR CPC Holdings v. Park City
20240065-CA 	5 	2025 UT App 130
in terms of CCC and includes the 2.5% increase as a part of its
baseline calculation. The spreadsheet then demonstrates that if
one subtracts guests who access the Resort without a parking
spot, then divides that number by 2.7 (the AVO under the Parking
Mitigation 	Plan), 	then 	subtracts 	the 	11% 	parking-spot 	need
reduction achieved by the Parking Mitigation Plan, one ends up
with a surplus of 102 spots.
¶9 	The 	Director 	ultimately 	concluded 	that 	the 	requested
upgrades satisfied the Development Agreement’s six criteria and
granted the ACUP, subject to certain conditions. As for Criterion
Six, the Director concluded, “The [Resort] submitted a [Parking
Mitigation Plan] dated April 19, 2022, stating that [the Resort] will
implement paid parking with a regulated reservation system
starting the 2022/2023 ski season. This plan proposes to increase
[AVO], carpool and transit use, and more effectively manage
traffic and parking impacts. The [Director] finds that the [Parking
Mitigation Plan] mitigates the impact of the lift upgrades.”
¶10 	Pursuant to section 15-1-18 of the Code, a group of citizens
(the 	Intervenors) 	appealed 	the 	Director’s 	decision 	to 	the
Commission 	(the 	Administrative 	Appeal). 	The 	Intervenors
argued that the ACUP application failed to satisfy Criterion One
and Criterion Six. Specifically, the Intervenors argued that under
the Development Agreement, the Resort must continually assure
“that it has adequate parking” or has otherwise implemented
plans “to mitigate the impact of ANY proposed expansion of lift
capacity.” The Intervenors specified that the Resort’s Parking
Mitigation Plan was problematic because it claimed a surplus of
parking based on basic CCC numbers and did not consider “peak
ski day numbers.” The Intervenors also claimed that the Resort’s
plan did “not assure adequate parking and that paid parking
without appropriate transit upgrades [would be] insufficient as a
mitigation strategy.” The Intervenors went on to raise other issues
with 	the 	Resort’s 	proposed 	Parking 	Mitigation 	Plan. 	These
concerns included questions about the overflow parking available

VR CPC Holdings v. Park City
20240065-CA 	6 	2025 UT App 130
through 	the 	Park 	City 	School 	District, 	the 	questionable
“comparability of other resorts and their paid parking” that the
Resort used to develop the Parking Mitigation Plan, and the lack
of a “third party or qualified engineering review of the [Parking
Mitigation Plan] to assure its integrity.”
¶11 	The 	Commission 	held 	two 	public 	hearings 	on 	the
Administrative 	Appeal, 	during 	which 	it 	heard 	from 	the
Intervenors, the Resort, and other community members. At one of
the hearings, one member of the Commission noted that “nothing
[had] been presented by” the Resort to give him “the information
to do the math” and that he “would like to see the current formula
with the inputs” so that the Commission “could actually verify”
the 	calculations 	relied 	on 	by 	the 	Director. 	Ultimately, 	the
Commission concluded, “[T]he total operating CCC has not been
verified and/or defined. As a result it is not possible to accurately
assess the required parking and other mitigation measures.”
¶12 	The 	Commission 	found 	that 	the 	Director 	“erred 	in
determining 	the 	ACUP” 	complied 	with 	Criterion 	One 	and
Criterion Six of the Development Agreement. As for Criterion
One, the Commission found, “The alignment of the new . . . lift is
not the same as shown in the [Upgrade Plan], as it does not go to
the Meadow area. The new . . . lift is therefore not consistent with
the [Upgrade Plan].” As for Criterion Six, the Commission made
several findings:
• 	“The lease for additional parking at Park City High School
is available a maximum of eight days per month limited to
weekends and holidays and not to include consecutive
weekends 	and 	is, 	therefore, 	insufficient 	to 	properly
mitigate the increased parking demand which overflowed
at least 68 days during the 2021/22 ski season. The number
of 	stalls 	to 	be 	used 	was 	not 	defined, 	and 	therefore
insufficient to properly mitigate.”

VR CPC Holdings v. Park City
20240065-CA 	7 	2025 UT App 130
• 	“The 	paid 	parking 	mitigation 	plan 	was 	based 	on
unconfirmed CCC numbers and ski resort data that is not
satisfactorily comparable to Park City in terms of access
and controls for parking. Therefore, the assumed 11%
reduction in [AVO] is in error.”2
• 	“The City’s consultant, EcoSign, did not verify actual
calculations, and review was limited to the data and tables
provided by [the Resort].”
• 	“The 	[Upgrade 	Plan] 	specifies 	200 	stalls, 	plus 	the
Sweetwater site, to be used by employees of [the Resort],
but these stalls are not accounted for in the Parking
Mitigation 	Plan, 	and 	parking 	mitigation 	therefore 	is
insufficient.”
Thus, the Commission denied the Resort’s application.
¶13 	The Resort petitioned for review of the Commission’s
decision with the district court. There, the Resort argued that the
Commission did not give sufficient weight to the Resort’s experts
on the CCC calculations and parking mitigation implications. The
Resort further accused the Commission of having yielded to
public clamor. Finally, the Resort argued that the Intervenors did
not raise the issues regarding CCC or lift alignment in the
Administrative Appeal and that those issues were therefore not
preserved for judicial review.
¶14 	At a hearing on the Resort’s petition, the district court
stated that whether the Commission acted in an arbitrary and
2. That there would be an assumed 11% reduction in AVO appears
to be a misstatement. In fact, the Parking Mitigation Plan changes
the AVO from 2.3 to 2.7, an increase of about 17%, while claiming
an 11% reduction in the overall parking demand could be
achieved. Thus, all else being equal, the reduction in parking
demand is based, at least in part, on an increase in AVO.

VR CPC Holdings v. Park City
20240065-CA 	8 	2025 UT App 130
capricious 	manner 	“turns 	on 	whether 	the 	[C]ommission’s
decision was supported by substantial evidence.” The court
continued, “If it was, it wasn’t arbitrary and capricious as it
stands. If it wasn’t supported by substantial evidence, then it was
arbitrary and capricious and it needs to be reversed.” The district
court specifically addressed Criterion One and Criterion Six.
¶15 	The 	district 	court 	did 	not 	rule 	on 	the 	Commission’s
findings regarding Criterion One because it concluded that the
Intervenors had not adequately raised issues related to that
criterion in the Administrative Appeal and therefore the issues
were outside the scope of the district court’s review. Specifically,
the 	court 	determined 	that 	the 	City 	and 	the 	Intervenors’
“arguments 	regarding 	consistency 	under 	[Criterion 	One,
including] consistency with CCC totals and subtotals and lift
alignment[,] [were] not properly inside the scope of appeal
under” section 15-1-18 of the Code.
¶16 	The district court found that “the parking issue [under
Criterion Six was] properly within the appeal.” The district court
ruled on the parking issue as follows:
[The Commission] was presented with evidence in
the record that raised reasonable questions about
the reliability of the expert analysis underlying [the
Resort’s] Parking Mitigation Plan and reasonable
questions regarding the effectiveness of the Parking
Mitigation Plan. . . . These are all comments made
by the public that are not public clamor, but are
reasonable concerns based on evidence in the record
that cast doubt onto whether the expert analysis
under the Parking Mitigation Plan was reliable.
¶17 	The court concluded that “facts in the record reasonably
support questions regarding the reliability of the expert analysis
underlying the Parking Mitigation Plan, and reasonably support
skepticism regarding the effectiveness of the Parking Mitigation

VR CPC Holdings v. Park City
20240065-CA 	9 	2025 UT App 130
Plan 	proposed 	by 	[the 	Resort].” 	The 	district 	court 	thereby
concluded that the Commission had not acted arbitrarily and
capriciously when it determined that the Resort’s application did
not establish that Criterion Six had been met. The court therefore
upheld the Commission’s decision reversing the Director’s grant
of the ACUP.
¶18 	The Resort appeals the district court’s decision to this
court.
ISSUES AND STANDARD OF REVIEW
¶19 	The Resort contends that the district court should have
concluded 	that 	the 	Commission’s 	decision 	was 	arbitrary,
capricious, and illegal because it considered issues not raised in
the Administrative Appeal. The Resort further argues that the
district court should have concluded that the Commission’s
decision regarding Criterion Six was arbitrary, capricious, and
illegal because it was not supported by the record and was
contrary to law.
¶20 	“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 authority’s
decision directly, and we afford no deference to the district court’s
decision. Like the review of the district court, our review is limited
to whether a land use authority’s decision is arbitrary, capricious,
or illegal.” Fox v. Park City, 2008 UT 85, ¶ 11, 200 P.3d 182 (cleaned
up).3
3. To clarify the scope of our review, the issues related to Criterion
One are not before us. In the briefing on appeal, the parties
sometimes ask us to look at the ruling of the district court and at
other 	times 	ask 	us 	to 	examine 	the 	Commission’s 	decision.
(continued…)

VR CPC Holdings v. Park City
20240065-CA 	10 	2025 UT App 130
ANALYSIS
I. Criterion Six Preservation
¶21 	The Resort argues that the “Intervenors’ petition did not
adequately raise on appeal the verification or accuracy of the CCC
numbers.” The Resort goes on to claim that because the CCC issue
that 	the 	Intervenors 	did 	raise 	was 	not 	the 	basis 	of 	the
Commission’s 	decision, 	any 	“decision 	on 	that 	basis 	was
necessarily outside the scope of [the Commission’s] appellate
authority.”
Precedent is clear that “we act as if we were reviewing the land
use authority’s decision directly.” Fox v. Park City, 2008 UT 85,
¶ 11, 200 P.3d 182. But we still look to the district court’s
resolution of the matter. As explained by our supreme court, “the
fact that we afford no deference to the intermediate court does not
obviate the need for parties to make and preserve below the
arguments they wish to press on appeal.” Outfront Media, LLC v.
Salt Lake City Corp., 2017 UT 74, ¶ 12 n.8, 416 P.3d 389. Here, the
district court determined that Park City and the Intervenors’
arguments regarding consistency under Criterion One were “not
properly inside the scope of appeal . . . but [that] the parking
issue” under Criterion Six was “properly within the appeal.” We
agree with the district court. The district court held that the
Intervenors failed to preserve their arguments on compliance
with Criterion One in the original appeal because, to the extent
they raised the issue, they did so in a superficial and passing way
that gave no indication that it constituted a discernable aspect of
their original appeal or was in any way distinguishable from their
concerns about compliance with Criterion Six. Accordingly, the
district court made no determination as to Criterion One. We
discern no error in this determination and independently reach
the same conclusion.

VR CPC Holdings v. Park City
20240065-CA 	11 	2025 UT App 130
¶22 	The Commission found that the issue of Criterion Six was
sufficiently preserved by the Intervenors’ original challenge of the
Director’s decision. The district court likewise determined that the
issue of compliance with Criterion Six was “properly within the
appeal because that issue was raised in a way that complies with”
the Code.
¶23 	We agree with the district court (and the Commission) that
the issues surrounding Criterion Six were preserved. The Code
requires 	that 	any 	appeals 	to 	the 	Commission 	contain 	“a
comprehensive statement of all the reasons for the appeal.” Park
City, Utah, Land Management Code § 15-1-18(F). The Code
further explains that “[r]eview of petitions of appeal shall include
a public hearing and shall be limited to consideration of only
those matters raised by the petition(s).” Id. § 15-1-18(G). Thus, for
the Commission to have properly considered Criterion Six, the
Intervenors must have raised it in the Administrative Appeal.
¶24 	In the Administrative Appeal, the Intervenors alleged that
the proposed improvements did not satisfy Criterion Six. They
argued, “[T]he [Development Agreement] makes clear that a
Developer SHALL assure AT ALL TIMES that it has adequate
parking or has implemented other assurances to mitigate the
impact of ANY proposed expansion of lift capacity.”
¶25 	Not only did the Intervenors raise the general issue of
Criterion Six, they specifically raised the issues on which the
Commission 	would 	eventually 	base 	its 	decision, 	including
challenges to the figures on which the parking need estimates
were based, questions regarding parking at Park City High
School, the comparability of resort data on which the Parking
Mitigation Plan was based, and the lack of third-party verification
of the Parking Mitigation Plan data.
¶26 	Therefore, we agree with the district court’s conclusion
that “the parking issue under [Criterion Six was] properly within

VR CPC Holdings v. Park City
20240065-CA 	12 	2025 UT App 130
the appeal because that issue was raised in a way that complies”
with the relevant sections of the Code identified above.
II. Record Evidence Supporting the District Court’s Conclusion
on Criterion Six
¶27 	The district court aptly explained the review standard here:
Whether 	the 	Commission’s 	decision 	“was 	arbitrary 	and
capricious turns on whether the . . . decision was supported by
substantial evidence. If it was, it wasn’t arbitrary and capricious
as it stands. If it wasn’t supported by substantial evidence, then it
was arbitrary and capricious and it needs to be reversed.” See
Bradley v. Payson City Corp., 2003 UT 16, ¶ 10, 70 P.3d 47 (“When a
land use decision is made as an exercise of administrative or
quasi-judicial powers, . . . we have held that such decisions are not
arbitrary and capricious if they are supported by substantial
evidence.” (cleaned up)). The Utah Supreme Court has defined
substantial evidence as “that quantum and quality of relevant
evidence that is adequate to convince a reasonable mind to
support a conclusion.” First Nat’l Bank of Boston v. County Board of
Equalization, 799 P.2d 1163, 1165 (Utah 1990).
¶28 	Here, the Commission’s decision that the Director erred in
determining that the ACUP application complied with Criterion
Six 	of 	the 	Development 	Agreement 	was 	not 	arbitrary 	and
capricious because it was, in fact, supported by substantial
evidence.
¶29 	Under Criterion Six, the Resort must assure that there is
always adequate parking to mitigate the impact of any proposed
expansion of lift capacity. Under this reading, Criterion Six
requires that if any proposed expansion of lift capacity has an
impact on parking, that impact must be mitigated by the Resort.
¶30 	The Resort maintains that for Criterion Six to require
anything at all, the proposed upgrades must have some impact on
parking demand. And the Resort concedes that the proposed

VR CPC Holdings v. Park City
20240065-CA 	13 	2025 UT App 130
upgrades here will result in increased lift capacity: the Resort’s
own experts “calculated a total net increase in CCC of only 290
(from 12,860 to 13,370) or 2.5%.”4 The dispute thus focuses on
whether there is evidence on which the Commission might have
concluded that an increase in CCC would also have had an impact
on parking.
¶31 	The Resort argues that the Commission’s decision “was
arbitrary and capricious because it presume[d] the lift upgrades
would increase parking demand to begin with and thus require
any mitigation.” The Resort asserts that, in fact, the “upgrades
would have no impact on parking demand,” implying there would
be nothing to mitigate. The Resort also maintains that an increase
in CCC would not necessarily translate to an increase in parking
demand. At oral argument, the Resort explained, “[O]ur position
is firmly that there was zero evidence of any parking impact and
therefore nothing to mitigate.” The Resort’s experts asserted that
“there [will be] no impact to parking associated with these lifts,”
“meaning that there [will be] no need for additional day skier
parking in the future condition.” The Resort’s experts explained,
An increase in CCC does not directly cause an
increase in business or in demand. If business levels
remain the same, an increase in CCC will result in a
better skier experience, with shorter lift lines and
potentially marginally more skiing available for
each skier due to less time waiting in the lift line.
Due 	to 	the 	maximized 	use 	of 	the 	current
accommodation and parking inventory at the base
areas, business levels (& base area throughput) are
4. We note a problem with the Resort’s math here. The difference
between 13,370 and 12,860 is 510, not 290. And this difference
represents nearly a 4% increase rather than a 2.5% increase. We
assume the Resort meant to refer to the increase from 12,570 to
12,860, which represents a 2.3% increase. See supra note 1.

VR CPC Holdings v. Park City
20240065-CA 	14 	2025 UT App 130
unlikely to rise in the short term unless measures are
taken to increase the occupancy of the parked
vehicles or increase transit/shuttle use to those base
areas.
In summary, although there is not a direct effect on
business levels due to an increase in CCC, that better
skier experience will likely make skiing at the
[R]esort even more attractive, which could be a
factor in putting more pressure on the base areas.[5]
¶32 	The Resort now relies on its experts’ conclusion that an
increase in CCC would not result in an increase in parking
demand. This represents at least a shift in strategy, if not a shift in
substance. After all, the Resort submitted a robust Parking
Mitigation Plan that would seem to point in a different direction.
But the Resort argues that it submitted this plan solely because the
Director asked it to. The Resort now implies that it was never
strictly required to submit a meaningful Parking Mitigation Plan
because its proposed upgrades do not trigger the threshold
requirement of Criterion Six—namely, that its improvements will
5. Though it is not determinative to our conclusion, the experts’
analysis gives us pause. If we understand the analysis correctly,
the experts appear to conclude that without sufficient parking at
the Resort, overall business is not likely to increase, and so
therefore the Resort has no obligation to submit a plan to provide
more parking. In other words, the experts seem to say, the Resort
has already maxed out the current parking and therefore doesn’t
need to provide any more parking. Under that reasoning, as long
as the Resort is not providing adequate parking, it will never have
to provide parking mitigation. On top of that, it seems odd and
illogical for the experts to suggest that the Resort is simply
working to make the skier experience more pleasant but that
there’s no reason to believe that those efforts will attract more
skiers.

VR CPC Holdings v. Park City
20240065-CA 	15 	2025 UT App 130
have some impact on parking. Thus, the Resort essentially argues
that any Parking Mitigation Plan would be sufficient because it
would be weighed against the zero impact that the improvements
would have and, therefore, the Commission acted arbitrarily and
capriciously when it determined otherwise. Under the Resort’s
view, while it was required to submit a Parking Mitigation Plan,
the 	plan 	it 	submitted 	could 	have 	literally 	said, 	“These
improvements will have no effect on parking so our plan to
mitigate is to do nothing.”
¶33 	But that’s not what the Resort did. Instead, the Resort
submitted 	an 	elaborate 	Parking 	Mitigation 	Plan, 	with 	the
assistance 	of 	multiple 	expert 	consultants, 	which 	proposed
strategies to implement a paid parking system that would in turn
increase the AVO (or average vehicle occupancy) of cars parking
at the Resort and would decrease the number of parking spaces
needed.
¶34 	Based on all this, we understand the Resort’s argument to
be that the proposed improvements will have zero impact on
parking demand. But the Resort asserts that even if the proposed
improvements would have some incremental impact on the
demand for parking, it doesn’t matter because the Resort will
commit to a Parking Mitigation Plan that completely mitigates
that small increase. Indeed, the Resort’s Parking Mitigation Plan
assumes as much—it factors the 2.5% increase in CCC into its
calculation of required parking spaces. We thus presume that the
Resort maintains that it never conceded that an increase in CCC
would translate into an increase in parking demand and that it
was simply putting forth the increased CCC number for the sake
of argument to demonstrate its point that even if there were an
increase, the Parking Mitigation Plan would mitigate it.
¶35 	On appeal, the Resort argues that the efficacy of its Parking
Mitigation Plan is not at issue and cannot be the subject of review
because the improvements will have no impact on parking, which

VR CPC Holdings v. Park City
20240065-CA 	16 	2025 UT App 130
avoids triggering any requirement under Criterion Six. This
argument fails for several reasons. First, the Parking Mitigation
Plan was in evidence and was therefore properly considered by
the Commission. Second, the Resort has failed to show that the
Parking Mitigation Plan was so immaterial and irrelevant that the
Commission’s consideration of the plan itself would be arbitrary
and capricious. Third, the Resort’s position before the Director—
whose 	decision 	was 	actually 	being 	reviewed 	by 	the
Commission—never asserted that the Parking Mitigation Plan
was merely a perfunctory requirement. Indeed, when the Director
required a Parking Mitigation Plan, the Resort never argued that
such a plan was unnecessary under the circumstances.
¶36 	From our review of the record, it does not appear that the
Director 	(or 	anyone 	other 	than 	the 	Resort’s 	experts) 	ever
determined that the proposed improvements would have no
impact on parking. Rather, the Director never had to reach this
issue 	because 	she 	found 	that 	the 	Resort’s 	plan 	sufficiently
mitigated any impact. And the only reason the Director was able
to avoid the question of whether an increase in CCC would result
in an increase in parking demand is that the Resort assumed an
increased CCC would increase parking demand. That the Resort is
now describing the framework as theoretical does not change that
it did not make this point to the Director.
¶37 	Theoretical though it may have been for the Resort, it is this
factual set of assumptions that the Director proceeded under and
that was assumed at every step of review thereafter. Simply
stated, a party cannot insulate its primary argument from review
at lower levels and then claim that the argument is determinative
on appeal.
¶38 	But that is exactly what the Resort has done here. We
acknowledge that it argued to the Director that there would be no
impact 	on 	parking, 	but 	it 	provided 	the 	Director 	with 	an
alternative basis to approve its application, and that is the basis

VR CPC Holdings v. Park City
20240065-CA 	17 	2025 UT App 130
under which the parties have been operating. In its ACUP
application, the Resort assumed that the increase in CCC would
have an impact on parking, even if the result of that impact was
minimal. That position was successfully maintained when the
Director approved the ACUP application. And that is the context
under which the Commission undertook its review.
¶39 	Still, the Resort urges us to make a decision based on the
assumption that the proposed improvements would have no
impact on parking. But that assumption never became the basis
for 	a 	factual 	determination 	made 	by 	the 	Director, 	the
Commission, or the district court. The Director never made a
conclusion regarding the Resort’s claims of no impact. And in
reviewing the Director’s decision, the Commission never made a
conclusion regarding the Resort’s claim of no impact. Instead, the
Commission found that “the proposal did not meet” Criterion Six
because “it [was] not possible to accurately assess the required
parking and other mitigation measures” and because of other
various defects in the Parking Mitigation Plan. In reviewing the
Commission’s decision, the district court likewise never made a
conclusion regarding the Resort’s claim of no impact.6 In other
6. The Resort claims that the district court found there was “no
non-speculative connection between a higher CCC number and a
higher parking demand.” But the Resort mischaracterizes this
statement. This was not in any way a part of the district court’s
ruling. Rather, it was an off-hand comment—made prior to the
ruling—when the district court said, “I think . . . you’re on the
high side of the argument of there’s basis in the record here, no
non-speculative connection between a higher CCC number and a
higher parking demand. I’m persuaded by that.” During the
district court’s actual oral ruling on the matter, the Resort
confronted 	the 	court 	with 	this 	very 	issue, 	asking, 	“[W]hat
evidence in the record [was there] that there would be any impact
on parking caused by . . . the proposed two lift upgrades?” To that,
(continued…)

VR CPC Holdings v. Park City
20240065-CA 	18 	2025 UT App 130
words, the district court and the Commission concluded that the
Resort failed to show compliance with Criterion Six.
¶40 	The assumption underlying each of the proceedings below
was that the 2.5% increase in CCC would affect parking. The
Resort never challenged the Director’s conclusion that a Parking
Mitigation Plan was required. Thus, the Commission and the
district court properly considered the question that we now
consider 	here—whether 	the 	Parking 	Mitigation 	Plan 	would
sufficiently address the increase in parking demand.
¶41 	Again, we will set aside the Commission’s decision only if
it was arbitrary and capricious, that is, if it was not supported by
substantial evidence. Therefore, as long as the “quantum and
quality 	of 	relevant 	evidence 	[was] 	adequate 	to 	convince 	a
reasonable mind” that the Parking Mitigation Plan would not
mitigate 	the 	parking 	impact 	caused 	by 	the 	proposed
improvements, 	then 	the 	Commission’s 	decision 	was 	neither
arbitrary nor capricious. See First Nat’l Bank of Boston v. County
Board of Equalization, 799 P.2d 1163, 1165 (Utah 1990). Based on our
review of the record, we conclude that the evidence before the
Commission was adequate to convince a reasonable mind that the
Parking Mitigation Plan was insufficient and that Criterion Six
therefore had not been met. As a result, the Resort was not entitled
to obtain a conditional use permit through the ACUP process. The
following reasons support this conclusion.
the district court responded, “That’s a question for the [D]irector.
[The Director] made that decision, and you didn’t appeal it. But
[the Director] found that [the Parking Mitigation Plan] was
necessary and was the thing that mitigates the impact of the lift
upgrades. That issue is not before me.” More importantly, given
that we are directly reviewing the Commission’s decision, we
would not be bound by the district court’s finding if it ruled that
the issue was properly before it.

VR CPC Holdings v. Park City
20240065-CA 	19 	2025 UT App 130
¶42 	First, the Commission found, “[T]he total operating CCC
has not been verified and/or defined. As a result it is not possible
to accurately assess the required parking and other mitigation
measures.” At the Commission’s meeting where it considered the
Intervenors’ appeal, the Commission heard evidence from the
Intervenors about discrepancies in the Resort’s CCC calculations.
Without clear CCC calculations, it is impossible to know whether
the potential parking impact would increase by 2.5% or by
something significantly greater. The discrepancies in the Resort’s
CCC calculations—and the unanswered questions about those
calculations—were sufficient to convince a reasonable mind that
the Parking Mitigation Plan did not constitute an ”assurance” as
required by Criterion Six.
¶43 	Next, the Commission heard evidence that the additional
parking at Park City High School might not mitigate parking
impact in the way suggested by the Resort. The Resort’s Parking
Mitigation Plan stated that it would implement a paid parking
reservation 	system 	and 	that 	if 	guests 	arrived 	without 	a
reservation, they would be redirected to another parking location,
like the high school. But at the public hearings, the Commission
heard evidence from the Intervenors that parking at the high
school was available a maximum of eight days per month and
limited to weekends and holidays, not to include consecutive
weekends. At the hearings, members of the community testified
that skiers sometimes park illegally throughout the city when the
current parking is insufficient. Indeed, a key assumption of the
Parking Mitigation Plan is that overflow parking options would
be sufficient to meet demand, but there was substantial evidence
to suggest otherwise.
¶44 	The Commission also heard evidence suggesting that the
Parking Mitigation Plan was based on ski resort data that was not
comparable to the situation in Park City. In its Parking Mitigation
Plan, the Resort specifically references Beaver Creek and Alta. But
at the hearing, the Intervenors suggested that Park City is

VR CPC Holdings v. Park City
20240065-CA 	20 	2025 UT App 130
uniquely 	situated 	when 	compared 	to 	those 	two 	areas. 	For
example, Park City attracts visitors not only for its world class
skiing but also for tourism, shopping, and relaxation. While many
skiers in Alta and Beaver Creek may be dropped off to ski, skiers
in Park City are more likely to be accompanied by family and
friends who want to take advantage of other local offerings and
thus will still need parking spots. The Resort asserts that the
anticipated 	11% 	reduction 	in 	parking 	demand 	relies 	on 	“a
proprietary model based on a meta-analysis of 50 different
parking studies.” But nothing in the record compels confidence
that this study is based on parking situations that are comparable
to Park City’s, so it was well within the Commission’s discretion
to 	give 	it 	whatever 	weight—including 	no 	weight—the
Commission felt it warranted. Accordingly, in this way the
evidence was sufficient to convince a reasonable mind that the
Parking Mitigation Plan was insufficient.
¶45 	Finally, the Commission heard evidence that the reliability
of the Parking Mitigation Plan was questionable given that it was
not verified by Park City’s expert or anyone other than the Resort
and its experts. The record suggests that the Resort’s Parking
Mitigation 	Plan 	potentially 	contained 	inconsistencies 	or
inaccurate predictions and that those calculations were never
verified. With no verification from a third party, there is reason to
believe 	that 	the 	numbers 	presented 	by 	the 	Resort 	do 	not
accurately represent the possible parking mitigation proposed in
the Parking Mitigation Plan. For example, the Resort’s expert
asserted, “[A]n 11% reduction in parking demand is achievable
under a paid parking system at [the Resort]. . . . The anticipated
potential reduction in demand will be achieved through an
increase 	in 	vehicle 	occupancy 	and 	an 	increase 	in 	transit
ridership.” Thus, the Resort alleges that parking mitigation would
be achieved, at least in part, by an increase in AVO (average
vehicle occupancy). But this logic is not reflected in the math
presented by the Resort. In its Parking Mitigation Plan, the Resort
divides the total number of skiers requiring parking by 2.7,

VR CPC Holdings v. Park City
20240065-CA 	21 	2025 UT App 130
because the Parking Mitigation Plan would allegedly increase
AVO from 2.3 to 2.7. The Resort’s math results in a lower number
of vehicles requiring parking spots. Then the Resort subtracts 195
parking spaces from the total required parking spaces because of
the 11% reduction in parking achieved by the Parking Mitigation
Plan. But according to the Resort, that 11% reduction would
happen only because of the increased AVO. Thus, at least as far as
we can tell, the Resort may have double-counted the impact of the
Parking Mitigation Plan, leading the Resort to conclude that it
would sufficiently mitigate any parking impact.
¶46 	In reviewing the totality of the available evidence, we
cannot say that the proposed improvements would have no
impact on parking when that fact was never seriously established
or reviewed below. From our reading of the record, there was
sufficient evidence presented to the Commission to convince a
reasonable mind that the Parking Mitigation Plan did not mitigate
the impact on parking that the proposed improvements might
have had. Thus, the Commission’s decision that Criterion Six was
not met was supported by substantial evidence, so the decision
was not arbitrary or capricious.
CONCLUSION
¶47 	We agree with the district court that the Commission’s
decision was neither arbitrary or capricious, nor otherwise illegal,
in determining that the Resort’s ACUP application did not satisfy
Criterion Six of the Development Agreement. Affirmed.