Ferre v. Salt Lake City

2019 UT App 94

THE UTAH COURT OF APPEALS

JEREMY FERRE,
Appellant,
v.
SALT LAKE CITY AND
SILVERHAWK ENTERPRISES INC.,
Appellees.

Opinion
No. 20180236-CA
Filed May 31, 2019

Third District Court, Salt Lake Department
The Honorable Sandra N. Peuler
No. 170904485

Scott O. Mercer and James Adam Knorr, Attorneys
for Appellant
Margaret D. Plane, Paul Nielson and Allison
Elizabeth Parks, Attorneys for Appellee
Salt Lake City
Ryan B. Braithwaite and Daniel K. Brough, Attorneys
for Appellee Silverhawk Enterprises Inc.

JUDGE DIANA HAGEN authored this Opinion, in which
JUDGES KATE APPLEBY and RYAN M. HARRIS concurred.

HAGEN, Judge:

¶1 Homeowner Jeremy Ferre challenges a special exception
granted by the Salt Lake City Planning Commission (the
Commission), allowing the construction of a two-story house on
a neighboring lot that exceeded the Salt Lake City Code’s
maximum height allowance. Ferre appealed the Commission’s
decision to the Salt Lake City Land Use Appeals Hearing Officer
(the Hearing Officer), arguing, in part, that the Commission’s
decision was illegal because the Commission did not make the
Ferre v. Salt Lake City

required finding that the proposed exception was “in keeping
with the development pattern of the block face.” 1 The Hearing
Officer upheld the Commission’s decision, and on judicial
review, the district court granted summary judgment in favor of
Salt Lake City, upholding the Commission’s decision. Ferre now
appeals the district court’s ruling, arguing that the Commission’s
decision was illegal as a matter of law because the property was
not located on a “block face” as defined by the ordinance and,
therefore, could not be “in keeping with the development
pattern of the block face.”

¶2 We conclude that the requirement that the special
exception be consistent with the development pattern of the
block face is inapplicable where the property at issue is not
located on a block face. Instead, the Commission properly
considered the characteristics and existing structures in the
neighborhood to determine whether the additional height was in
keeping with the regulatory purpose of the zoning ordinances.
Accordingly, we affirm the district court’s grant of summary
judgment in favor of Salt Lake City.

BACKGROUND

¶3 Silverhawk Enterprises Inc. began construction of a house
on the lot located directly south of Ferre’s property. Both lots are
zoned in a “single- and two-family residential district.” See Salt
Lake City, Utah, Code § 21A.24.110. The property at issue is
“uniquely situated” and accessed “by a long driveway and
multiple easements” from the “block face” street on which
Ferre’s property is located. Silverhawk obtained a construction

1. A “block face” is defined as “[a]ll of the lots facing one side of
a street between two (2) intersecting streets. . . . In no case shall a
block face exceed one thousand feet (1000').” Salt Lake City,
Utah, Code § 21A.62.040.

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permit to build a three-story pitched-roof house, but after
pouring the foundation and beginning to frame the house,
Silverhawk discovered that it did not dig the foundation deep
enough. As a consequence, Silverhawk needed to modify the
height of the house to comply with the Salt Lake City Code.
Silverhawk consulted the relevant homeowners’ association to
determine whether it would be better to seek a special exception
for additional height for a three-story, pitched-roof house or for
additional height for a two-story, flat-roof house. “[A]t the
request” of the homeowners’ association, “Silverhawk
incorporated a flat roof [construction plan] . . . on the rationale
that a flat roof would have less visual impact on [neighboring]
views.” The revised construction plans proposed a maximum
building height of twenty-nine feet and eight inches, which is
one foot and eight inches more than permitted for a pitched-roof
house and nine feet and eight inches more than permitted for a
flat-roof house. See id. § 21A.24.110(D). Silverhawk submitted a
special exception application to the Commission for the
additional height.

¶4 The Salt Lake City Code provides exceptions to building
height restrictions when certain criteria are met. See id.
§ 21A.52.060. The Commission’s senior planner reviewed the
application and issued a report, concluding that the relevant
criteria were met and recommending that the Commission
approve the application subject to certain conditions. 2 The senior
planner’s report provided that, although the house was “not
directly located on the ‘block face,’” see id. § 21A.24.110(D)(6)(a),
the request for “additional building height complies with the
regulatory intent of Chapter 21A.24” of the Salt Lake City Code,
which ensures that the special exception is “compatible with the
existing scale and intensity of the neighborhood,” see id.
§ 21A.24.110(A).

2. The recommended conditions are not at issue on appeal and
we therefore do not recite them.

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¶5 The Commission held a public hearing to allow
surrounding property owners to provide commentary and lodge
objections to the special exception application. At the hearing,
Ferre, his attorney, and his brother spoke and objected to the
application, arguing that the house would impair Ferre’s view
and that the Commission should “enforce the ordinance” that
requires flat-roof buildings to not exceed twenty feet in height.

¶6 Over Ferre’s objections, the Commission granted the
special exception application subject to the senior planner’s
conditions. Ferre appealed the Commission’s decision to the
Hearing Officer and sought a stay of construction. 3 Relevant to
this appeal, Ferre “argued that there was insufficient evidence
for [the Commission] to find that the [special exception

3. The Hearing Officer did not respond to the request for a stay
of construction prior to the hearing on Ferre’s appeal that
occurred almost six months after Ferre sought the stay. During
the pendency of this appeal, Salt Lake City filed a suggestion of
mootness, arguing that Ferre’s appeal is moot because he did not
seek a stay of construction in the administrative proceedings and
the house has been built and sold to a third party. See Wasatch
County v. Utility Facility Review Board, 2018 UT App 191, ¶ 19, 437
P.3d 406 (explaining that “the presence of the [completed
construction project], coupled with [an appellant’s] failure to
seek a stay” renders the “proceeding for judicial review moot”).
But the record shows that Ferre did request a stay of
construction when he submitted his appeal to the Hearing
Officer in accordance with Salt Lake City Code section
21A.52.140, distinguishing this case from Wasatch County. Salt
Lake City has not persuaded us that this issue is moot and we
therefore reach the merits of this appeal. See Salt Lake County v.
Holliday Water Co., 2010 UT 45, ¶ 21, 234 P.3d 1105 (“The burden
of persuading the court that an issue is moot ‘lies with the party
asserting mootness.” (quotation simplified)).

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application] met the requirement of being in keeping with the
development pattern on the block face.”

¶7 The Hearing Officer disagreed, noting that “the
Commission entertained a discussion with [the senior planner]
regarding the development pattern of the block face and the
basis for the [senior planner’s] finding of compliance.” The
Hearing Officer upheld the Commission’s decision, concluding
that the Commission “had substantial evidence of the building
design of the neighborhood, the site and the relationship of the
proposed structure to its neighbors upon which it could find that
the [special exception application] met the standards set forth in
the Salt Lake City Code.”

¶8 Ferre sought judicial review of the Hearing Officer’s
decision in district court. Both parties filed cross-motions for
summary judgment. The district court concluded that there is
“no requirement that the building be on a block fac[e] to be
eligible for a special exception,” and declined to disturb the
Hearing Officer’s decision upholding the Commission’s grant of
the special exception.

¶9 Ferre appeals.

ISSUE AND STANDARDS OF REVIEW

¶10 Ferre contends the district court erred in granting
summary judgment in favor of Salt Lake City. 4 Summary
judgment is appropriate when “there is no genuine dispute as to

4. Ferre also argues that the district court “err[ed] in determining
that Ferre was required to marshal the evidence to demonstrate
that the Commission did not comply with” the Salt Lake City
Code. Salt Lake City does not contest Ferre’s position regarding
marshaling. Ferre’s only challenge on appeal is a purely legal
question.

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any material fact and the moving party is entitled to judgment as
a matter of law.” Utah R. Civ. P. 56(a). On appeal from a district
court’s review of an administrative agency’s decision, “we afford
no deference to the [district] court’s decision and apply the
statutorily defined standard to determine whether the court
correctly determined whether the administrative decision was
arbitrary, capricious, or illegal.” McElhaney v. City of Moab, 2017
UT 65, ¶ 15, 423 P.3d 1284 (quotation simplified).

ANALYSIS

¶11 Under Utah law, a municipality’s land use decisions are
accorded a great deal of deference. See Baker v. Park City Mun.
Corp., 2017 UT App 190, ¶ 16, 405 P.3d 962. A reviewing court
must “presume that a final decision of a land use authority or an
appeal authority is valid” and must uphold the decision unless it
is “(A) arbitrary and capricious; or (B) illegal.” Utah Code Ann.
§ 10-9-801(3)(b)(ii) (LexisNexis Supp. 2018). Here, Ferre contends
that the decision to grant the special exception was illegal
because the Commission did not strictly comply with the
relevant provisions of the Salt Lake City Code. Specifically, Ferre
argues that the Commission did not, and could not, make a
finding that the additional building height allowed by the
special exception was “in keeping with the development pattern
on the block face.” See Salt Lake City, Utah, Code
§ 21A.24.110(D)(6).

¶12 The Salt Lake City Code allows the Commission to grant a
special exception for additional building height when certain
conditions are met. Id. § 21A.52.060(A)–(G). In addition to
meeting the seven general standards in chapter 21A.52, which
are not at issue in this case, the Commission must also determine
that the additional building height “is in keeping with the
development pattern on the block face.” Id. § 21A-24-110(D)(6).
“Block face” is defined as “[a]ll of the lots facing one side of a
street between two (2) intersecting streets. Corner properties
shall be considered part of two (2) block faces, one for each of the

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two (2) intersecting streets. In no case shall a block face exceed
one thousand feet (1,000').” Id. § 21A.62.040.

¶13 Here, the property is not located on a block face. Instead,
it “is uniquely situated . . . on a steep grade sloping to the
south,” directly south of Ferre’s house, which can be accessed
from the “block face” street “by a long driveway and multiple
easements.” Because the property is not on a block face, the
Commission considered whether the additional height would be
compatible with the surrounding neighborhood in accordance
with the regulatory intent of chapter 21A.24 of the Salt Lake City
Code. See id. § 21A.24.110(A) (“Uses [under this chapter] are
intended to be compatible with the existing scale and intensity of
the neighborhood. The standards for the district are intended to
provide for safe and comfortable places to live and play and to
promote sustainable and compatible development patterns.”).
Ferre argues that this was error and the Commission instead
should have denied the special exception application “as a
matter of law” because there is no relevant block face. Under
Ferre’s interpretation of zoning ordinances 21A.24.110(D)(2) and
(D)(6), a special exception for additional height can never be
approved if the building at issue is not located on a block face.
We reject this interpretation.

¶14 “The fundamental consideration in interpreting
legislation, whether at the state or local level, is legislative
intent.” Springville Citizens for a Better Community v. City of
Springville, 1999 UT 25, ¶ 29, 979 P.2d 332. “The best evidence of
the legislature’s intent is the plain language of the statute [or
ordinance] itself.” Marion Energy Inc. v. KFJ Ranch P’ship, 2011 UT
50, ¶ 14, 267 P.3d 863 (quotation simplified). “We read the plain
language of the [ordinance] as a whole and interpret its
provisions in harmony with other [ordinances] in the same
chapter and related chapters.” See LPI Services v. McGee, 2009 UT
41, ¶ 11, 215 P.3d 135 (quotation simplified); see also Patterson v.
Utah County Board of Adjustment, 893 P.2d 602, 606 (Utah Ct.
App. 1995). But when a statute or ordinance is silent as to the

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circumstances presented “and we determine that such a gap was
not the intent of the [legislative body], we must determine the
best rule of law to ensure that the statute is applied uniformly.”
Cox v. Laycock, 2015 UT 20, ¶¶ 41–42, 345 P.3d 689 (quotation
simplified). We therefore “analyze the [ordinance] in its entirety
and harmonize its provisions in accordance with the legislative
intent and purpose.” Id. ¶ 42 (quotation simplified).

¶15 The ordinance at issue here provides that “additional
building height may be granted as a special exception by [the
Commission] subject to the special exception standards in
chapter 21A.52 of this title and if the proposed building height is
in keeping with the development pattern on the block face.” Salt
Lake City Code § 21A.24.110(D)(6)(a). That provision is silent as
to whether a special exception for building height may be
granted where no determination can be made as to whether “the
proposed building height is in keeping with the development
pattern on the block face” because the property at issue is not
located on a block face. Nor is there a separate provision that
would address such a situation. We therefore look to the chapter
as a whole to discern the legislative intent of the ordinance.

¶16 The “Statement of Intent” of chapter 21A.24 of the Salt
Lake City Code provides:

The residential districts are intended to provide a
range of housing choices to meet the needs of Salt
Lake City’s citizens, to offer a balance of housing
types and densities, to preserve and maintain the
City’s neighborhoods as safe and convenient places
to live, to promote the harmonious development of
residential communities, to ensure compatible infill
development, and to help implement adopted
plans.

Id. § 21A.24.010(A). Further, the “Purpose Statement” under
ordinance 21A.24.110(A), which governs the properties and

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ordinance at issue in this case, provides: “Uses are intended to
be compatible with the existing scale and intensity of the
neighborhood. The standards for the district are intended to
provide for safe and comfortable places to live and play and to
promote sustainable and compatible development patterns.” Id.

¶17 In applying this statutory scheme, we are mindful of
Utah’s long-standing principle that “because zoning ordinances
are in derogation of a property owner’s common-law right to
unrestricted use of his or her property, provisions therein
restricting property uses should be strictly construed, and
provisions permitting property uses should be liberally
construed in favor of the property owner.” Patterson, 893 P.2d at
606. Because chapter 21A.24 allows a property owner to seek an
exception to otherwise applicable land use restrictions, we must
“liberally construe” the chapter “in favor of the property owner”
seeking a special exception. See id.

¶18 If we were to read ordinance 21A.24.110(D)(6)(a) to
categorically exclude all buildings that are not on a “block face,”
as Ferre asks us to do, property owners like Silverhawk would
be foreclosed from seeking reasonable land use exceptions
available to other property owners even when the exception is
compatible with existing development. Such an interpretation
would be inconsistent with the regulatory purpose of chapter
21A.24 and our long-standing principle to favor the property
owner seeking a special exception. See Salt Lake City, Utah, Code
§§ 21A.24.010(A), 21A.24.110(A); see also Patterson, 893 P.2d at
606. We therefore conclude that such a categorical exclusion was
not intended. See Cox, 2015 UT 20, ¶¶ 44–46.

¶19 Instead, we read 21A.24.110(D)(6)(a) as requiring the
Commission to find that the proposed additional height of a
building is consistent with the development pattern of the block
face only when the building is actually located on a block face.
See Salt Lake City, Utah, Code § 21A.24.110(A), (D). When a
building is not located on a block face, such a determination

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would be impossible and the Commission can, as it did here,
consider “the existing development in the surrounding
neighborhood” to determine whether the additional height
would be in keeping with the regulatory purpose of chapter
21A.24.

¶20 Although the ordinance is silent as to the challenge Ferre
raises on appeal, we reject his argument that chapter 21A.24 of
the Salt Lake City Code is intended to categorically exclude
special exceptions for buildings not located on a block face.
Given that the property at issue was not located on a block face,
we conclude the Commission properly considered the
characteristics and existing development of the neighborhood
when it granted the special exception.

CONCLUSION

¶21 The district court correctly determined that the decision to
grant the special exception application was legal because it
complied with the requirements of the Salt Lake City Code. We
therefore affirm the district court’s grant of summary judgment
in favor of Salt Lake City.

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