The View Condo. Owners Ass'n v. MSICO

2005 UT 91
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
The View Condominium Owners 	Nos. 20040369
Association, a Utah 	20040370
condominium association,
Plaintiff, Respondent,
and Cross-Petitioner,
v.
MSICO, L.L.C., a Utah limited
liability company; and the Town
of Alta, a political subdivision
of the State of Utah, 	F I L E D
Defendants, Petitioners,
and Cross-Respondents. 	December 30, 2005
---
Third District, Salt Lake
The Honorable Michael K. Burton
No. 000910067
Attorneys: 	Robert E. Mansfield, Stephen Christiansen, Salt Lake
City, for plaintiff
Merrill F. Nelson, Salt Lake City, for defendants
---
On Certiorari to the Utah Court of Appeals
PARRISH, Justice:
¶1 	The View Condominium Owners Association (“The View”)
sued the Town of Alta and MSICO, L.L.C. (“MSI”), seeking to
prevent construction of single family homes on lots 5 and 9 of
the Sugarplum Planned Unit Development (“Sugarplum”), both of
which are owned by MSI and located in Alta. 	With respect to lot
5, The View argued that restrictive covenants governing Sugarplum
designated lot 5 as a parking area and that a subsequent
amendment to the Sugarplum plat map did not alter that
designation. 	With respect to lot 9, The View argued that Alta
effectuated an unconstitutional taking of its property without
just compensation when it amended a plan designating lot 9 for

Nos. 20040369, 20040370 	2
snow storage. 	The district court entered summary judgment
against The View on both issues. 	The court of appeals affirmed
the summary judgment on the parking issue, but concluded that
disputed issues of material fact precluded summary judgment on
the snow storage issue. 	The parties cross-petitioned this court
for writs of certiorari, which we granted. 	We hold that the
restrictive covenants were not abrogated by the recording of the
amended plat and accordingly reverse the court of appeals’ ruling
on the parking issue. 	We similarly reverse the court of appeals’
ruling on the snow storage issue, concluding that The View cannot
establish the elements necessary to succeed on its claim of
regulatory taking.
FACTUAL BACKGROUND
¶2 	The Sugarplum Planned Unit Development comprises
approximately twenty-five acres in Alta, Utah. 	On August 12,
1983, Sorenson Resources Company (“Sorenson”), the developer of
Sugarplum, simultaneously recorded two documents with the Salt
Lake County Recorder. 	The first was a Master Declaration of
Covenants, Conditions and Restrictions (the “Declaration”)
governing Sugarplum. 	The second was a plat map (“original plat”)
defining the location and dimensions of the individual Sugarplum
lots and specifying their anticipated dwelling densities.
¶3 	As originally envisioned, Sugarplum was divided into
nine individual lots with common areas for roads and other shared
uses. 	Under the Declaration, a planned road running roughly
north and south provided access to lots 4 through 9. 	Lot 4
abutted the road’s eastern edge, while lot 5 abutted the road’s
western edge. 	Lots 8 and 9 were also located west of the road,
but they were offset so that access to them was available only by
passing through lot 5.
¶4 	The Declaration designated lot 5 as a parking area for
the benefit of the units to be constructed on lot 4 and on lots 6
through 9. 	Sorenson retained the airspace rights above lot 5, to
be developed as it saw fit; potential uses included “commercial,
retail, residential, recreational.”
¶5 	The original plat also anticipated the use of lot 5 for
parking. 	It contained a table entitled “Anticipated Dwelling
Density,” which listed the estimated number of residential units
to be constructed on each of the nine lots. 	All lots, except lot
5, were assigned a tentative number of units. 	Lot 5 was assigned
no units. 	Rather, the entry for lot 5 stated “Parking and
Commercial Development of Air Space.”

3 	Nos. 20040369, 20040370
¶6 	Before selling any of the lots, Sorenson recorded an
amended plat map, which significantly altered the configuration,
size, and spatial relationships of the nine lots. 	The amended
plat moved lot 5 across the street so that it occupied land that
previously had been part of lot 4. 	Lots 8 and 9 were shifted
toward the road into the space previously occupied by lot 5 so
that these two lots then abutted the planned road.
¶7 	The amended plat also included changes to the table.
The designation of lot 5 for “Parking and Commercial Development
of Airspace” found on the original plat was eliminated, and lots
4 and 5 were listed together, with sixty-five units allocated
between them. 	Sorenson, however, failed to make corresponding
amendments to the Declaration, which designated lot 5 for parking
and the development of airspace.
¶8 	On January 4, 1985, The View’s predecessor in interest
purchased lot 8 as described in the amended plat. 	Despite the
restrictive covenants contained in the Declaration, the parties
did not contemplate a parking right on lot 5. 	Walter Plumb,
Sorenson’s corporate secretary, testified that the amended plat
reflected plans to eliminate lot 5 as a parking structure and
that Sorenson never intended to convey a parking right in that
lot. 	Russell Watts, president of The View’s predecessor in
interest, who was directly involved in the purchase of lot 8 from
Sorenson, testified that he neither bargained for nor intended to
acquire a parking interest in lot 5.
¶9 	After acquiring lot 8, The View’s predecessor in
interest sought a building permit from Alta. 	Because of the
heavy annual snowfall in the Alta area, Alta required an
acceptable plan for storing the snow on lot 8 as a condition of
the permit. 	To facilitate the application process, Plumb wrote a
letter to Alta dated February 27, 1985, in which he sought to
clarify Sorenson’s intent with regard to snow storage at
Sugarplum. 	The letter stated that, during the development of
lots 6 and 8, snow would be stored in the appropriate designated
areas and that if there should “be any excess snow, it may be
stored on lot 9 as recorded.” 	It also stated that areas
designated for snow storage were subject to change and that any
such changes would be submitted to Alta for approval when
Sorenson applied for additional development in Sugarplum.
¶10 	The Alta Planning Commission approved The View’s
application for a building permit on lot 8, contingent on its
understanding that substantial snow storage had been planned for
lot 9. 	On April 27, 1985, on the basis of the Commission’s
recommendation, Alta approved an official snow removal plan for

1 MSI counterclaimed, arguing that The View had improperly
used lot 9 to store snow without MSI’s permission and without
paying MSI appropriate compensation. 	MSI requested payment for
the reasonable value of The View’s use of lot 9 and an order
requiring that The View cease using lot 9 for snow storage. 	The
(continued...)
Nos. 20040369, 20040370 	4
The View that designated lot 9 for overflow snow storage, and The
View began using lot 9 for that purpose.
¶11 	On December 31, 1988, Sorenson deeded lots 4, 5, and 9
to MSI. 	Thereafter, various disputes arose between MSI and Alta
regarding development of the three lots, culminating in MSI’s
filing a lawsuit against Alta in September 1996. 	One of the
disputes related to Alta’s refusal to allow MSI to develop lot 9
while that lot was designated as a snow storage area for use by
The View. 	As part of that dispute, Alta sent The View a letter
indicating that, if The View were to lose its ability to store
snow on lot 9, Alta “would have little choice but to take legal
action to protect the public safety and welfare,” as “[s]now
storage is a life-safety issue in Alta.” 	The letter stated that
“protect[ing] the public safety and welfare” would necessitate
“an injunction precluding the occupancy of The View of lot 8 or
portions thereof during snow periods.”
¶12 	MSI and Alta settled the suit in November 2000. 	As
part of the settlement, Alta approved an alternate snow storage
plan for lots 4, 5, 8, and 9. 	The alternate plan removed lot 9
as the designated location for snow storage for The View and
allowed snow from lots 4, 5, 8, and 9 to be stored on five
separate locations in and around Sugarplum. 	Under the settlement
agreement, Alta also approved a development plan authorizing
construction of ten single family homes on lots 4, 5, and 9.
¶13 	In December 2000, The View sued MSI and Alta seeking to
prevent construction on lots 5 and 9. 	The View sought to prevent
construction on lot 9 under various legal theories, all of which
were designed to establish that The View had a permanent right to
store snow on that lot. 	Specifically, it argued that MSI and
Alta breached a contract allowing it to use lot 9 as overflow
snow storage and that MSI and Alta also breached the implied
covenant of good faith and fair dealing that inhered in the
contract. 	The View alternatively argued it had an easement to
store snow on lot 9 and that the doctrine of estoppel prevented
MSI and Alta from denying its right to store snow there.
Finally, The View claimed that Alta’s adoption of the revised
snow storage plan constituted an unconstitutional taking of its
property without just compensation. 1

1 (...continued)
district court held that MSI’s counterclaim was mooted by its
grant of summary judgment in favor of MSI on The View’s takings
claim. 	Because we affirm the summary judgment in favor of MSI on
that issue, and because neither party disputes the conclusion
that summary judgment in favor of MSI on The View’s takings claim
rendered MSI’s counterclaim moot, we do not address MSI’s
counterclaim further.
2 Neither The View’s claim of an implied easement to store
snow on lot 9 nor its claim that Alta and MSI are estopped from
denying it permission to store snow on lot 9 was encompassed
within our order granting certiorari review. 	Disposition of
those issues is therefore governed by the court of appeals’
opinion, which directed that they be remanded to the district
court for further consideration.
5 	Nos. 20040369, 20040370
¶14 	Following discovery, The View, MSI, and Alta all moved
for summary judgment. 	The district court denied The View’s
motion for summary judgment on the parking and the snow removal
issues and granted MSI/Alta’s motion for summary judgment on both
issues.
¶15 	The court of appeals affirmed the district court’s
entry of summary judgment against The View with respect to its
claim for parking on lot 5 and its contractual claims to store
snow on lot 9. 	The View Condo. Owners Ass’n v. MSICO, L.L.C.,
2004 UT App 104, ¶ 38, 90 P.3d 1042. 	But it reversed the summary
judgment entered against The View on its other claims relating to
the snow storage issue. 	Id. 	Specifically, it found that
disputed issues of material fact made summary judgment
inappropriate on The View’s claims of implied easement, estoppel,
and taking without just compensation and remanded those claims to
the district court for further proceedings. 	Id.
¶16 	MSI and Alta jointly petitioned for a writ of
certiorari, arguing that the court of appeals erred in denying
summary judgment in its favor on The View’s claims of implied
easement, estoppel, and a constitutional taking. 	The View cross-
petitioned, alleging that the court of appeals erred in affirming
summary judgment in favor of MSI on its claim to a parking right
on lot 5. 	We granted certiorari to consider only two issues. 2
First, did the court of appeals err in holding that the
restrictive parking covenant for lot 5 was terminated by the plat
amendment? 	Second, did the court of appeals err in holding that
Alta’s termination of the snow storage designation for lot 9 gave
rise to a constitutional takings claim? 	We have jurisdiction

Nos. 20040369, 20040370 	6
pursuant to Utah Code section 78-2-2(3)(a). 	Utah Code Ann.
§ 78-2-2(3)(a) (2002).
ANALYSIS
¶17 	When reviewing a case on certiorari, we review the
court of appeals’ decision for correctness. 	State v. Peterson,
2005 UT 17, ¶ 8, 110 P.3d 699; State v. Corwell, 2005 UT 28,
¶ 10, 114 P.3d 569. 	“The correctness of the court of appeals’
decision turns on whether that court correctly reviewed the trial
court’s decision under the appropriate standard of review.”
State v. Dean, 2004 UT 63, ¶ 7, 95 P.3d 276. 	When reviewing the
trial court’s interpretation of the Declaration, which presents a
legal question, the court of appeals was obligated to apply a
correctness standard. 	Cf. Fairbourn Commercial, Inc. v. Am.
Hous. Partners, Inc., 2004 UT 54, ¶ 6, 94 P.3d 292. 	In reviewing
a grant or denial of summary judgment, the court of appeals was
obligated to “view the facts and all reasonable inferences drawn
therefrom in the light most favorable to the nonmoving party” and
to review the district court’s legal conclusions, as well as the
grant of summary judgment as a whole, for correctness. 	Fericks
v. Lucy Ann Soffe Trust, 2004 UT 85, ¶¶ 2, 10, 100 P.3d 1200
(citation omitted). 	Summary judgment is appropriate when there
is no genuine issue of material fact and the moving party is
entitled to a judgment as a matter of law. 	Id. ¶ 10; Utah R.
Civ. P. 56(c).
¶18 	The View contends that the court of appeals erroneously
affirmed the district court’s grant of summary judgment in favor
of MSI on the lot 5 parking issue. 	Alta argues that the court of
appeals erred in reversing summary judgment in its favor on the
lot 9 takings claim. 	We address each contention in turn.
I. 	THE VIEW’S RIGHT TO USE LOT 5 FOR PARKING
¶19 	We first consider whether the court of appeals erred in
holding that the plat amendment terminated the restrictive
parking covenant applicable to lot 5. 	The court of appeals
approached this issue by analyzing whether the lot 5 parking
covenant qualified as a covenant “running with the land.” 	The
View Condo. Owners Ass’n v. MSICO, L.L.C., 2004 UT App 104,
¶¶ 16-29, 90 P.3d 1042. 	The court concluded that the covenant
did not run with the land because the covenanting parties did not
intend it to do so. 	Id. ¶ 18. 	In reaching this conclusion, the
court of appeals began with the proposition that the relevant
time for determining intent was that point when Sorenson first
conveyed a parcel subject to the Declaration. 	Id. ¶¶ 16-18. 	The
court of appeals then examined the language of the Declaration in

7 	Nos. 20040369, 20040370
light of the amended plat, found that it was ambiguous, and
therefore looked to extrinsic evidence of intent. 	Id. ¶¶ 20-26.
From the extrinsic evidence, the court of appeals concluded that
the parties did not intend the parking covenant to run with the
land. 	Id. ¶¶ 25-26. 	It therefore upheld the district court’s
summary judgment in favor of MSI. 	Id.
¶20 	The View argues that the court of appeals erred when it
considered extrinsic evidence. 	It asserts that the Declaration
unambiguously demonstrates the parties’ intent to create a
restrictive covenant burdening lot 5 and that it is entitled to
enforce the Declaration according to its terms. 	At the heart of
The View’s argument is the notion that the amendment to the plat
map, which reconfigured the sizes and locations of the Sugarplum
lots, did not effectuate an amendment to the corresponding
Declaration. 	We agree.
¶21 	A servitude, such as a restrictive covenant, “is
created . . . if the owner of the property to be burdened . . .
conveys a lot or unit in a general-plan development or common-
interest community subject to a recorded declaration of
servitudes for the development or community.” 	Restatement
(Third) of Property: Servitudes § 2.1 (2000). 	We interpret the
provisions of the Declaration as we would a contract. 	Swenson v.
Erickson, 2000 UT 16, ¶ 11, 998 P.2d 807. 	If the Declaration is
not ambiguous, we interpret it according to its plain language.
Fairbourn Commercial, Inc. v. Am. Hous. Partners, Inc., 2004 UT
54, ¶ 11, 94 P.3d 292. 	We may resort to extrinsic evidence as an
aid to construction only where there is an ambiguity. 	See
Swenson, 2000 UT 16, ¶¶ 10-11. 	An ambiguity exists if the
Declaration is “capable of more than one reasonable
interpretation because of uncertain meanings of terms, missing
terms, or other facial deficiencies.” 	Fairbourn Commercial, 2004
UT 54, ¶ 10 (internal quotation marks omitted).
¶22 	The Declaration’s initial recitals plainly state that
the covenants, servitudes, and restrictions contained in the
Declaration “shall constitute covenants to run with the land.”
Article 12.12 of the Declaration similarly provides that the
“Declaration shall run with the land, and shall continue in full
force and effect for a period of fifty (50) years.” 	Article 3.1
of the Declaration states: 	“Lot 5 shall be reserved for and
improved with a parking facility for the owners of Lot 4 and Lots
6–9 and the Units constructed thereon, subject to Declarant’s
reservation of the air space rights to Lot 5 . . . .” 	Finally,
the restrictive covenants of the Declaration expressly apply to
lots 1 through 9 “as shown on that [plat map] . . . as the same
may be amended from time to time.” 	We conclude that this

3 We note that the court of appeals’ focus on whether the
parking covenant was one “running with the land” is extraneous to
the resolution of this issue. 	The question of whether a
restrictive covenant “runs” with its appurtenant land arises only
when a landowner seeks to convey the burdened land to another.
See, e.g., Flying Diamond Oil Corp. v. Newton Sheep Co., 776 P.2d
618, 620–23 (Utah 1989). 	In that circumstance, the restrictive
covenant that encumbers the land is already in force. 	Here,
however, while lot 5 was subject to article 3.1 of the
Declaration, it was not encumbered until Sorenson actually
conveyed it to MSI, thereby creating the servitude. 	See
Restatement (Third) of Property: Servitudes § 2.1 cmt. c.
4 The Declaration defines “Map” to mean the recorded plat,
“as the same may be amended from time to time, and which is
incorporated herein by this reference.”
Nos. 20040369, 20040370 	8
language unambiguously creates a restrictive covenant that came
into effect when Sorenson conveyed lot 5 to MSI. 3
¶23 	In urging us to conclude otherwise, MSI relies on the
plat amendment. 	While it concedes that the Declaration and
original plat contemplated the use of lot 5 for parking, it
argues that the amended plat eliminated the original lot 5,
redrew the boundaries of the several lots, and used land from
other lots to create a new lot 5 devoid of any use restrictions.
Because the Declaration incorporates the amended plat by
reference, 4 MSI argues that the plat amendment effected an
amendment to the Declaration as well, a result that is consistent
with the intent of the parties at the time Sorenson conveyed
lot 8.
¶24 	While we agree with MSI’s core contention that the
Declaration must be construed together with the amended plat,
see Rowley v. Marrcrest Homeowners’ Ass’n, 656 P.2d 414, 417
(Utah 1982), we disagree with the way in which MSI attempts to
apply that principle here. 	First, MSI’s argument ignores the
language of the Declaration specifying that the restrictive
covenants apply by their terms to any amended plats. 	Second, the
argument presumes that the terms of the Declaration are in
conflict with the amended plat. 	But they are not.
¶25 	Nothing in the amended plat is inconsistent with use of
the lot 5 surface area for parking. 	The table on the amended
plat does not require that any units be constructed on lot 5. 	It
specifies only that a maximum of sixty-five units may be
distributed between lots 4 and 5. 	Moreover, the Declaration

9 	Nos. 20040369, 20040370
reserves the air space above lot 5 to Sorenson. 	Article 2.1.3
provides:
[Sorenson] hereby reserves unto itself, its
successors and assigns, the exclusive right
to develop, build upon, lease, sell and
otherwise use the air space above Lot 5
. . . . [Sorenson] and/or transferee of the
Air Space shall have the right to construct
any improvements therein for commercial,
residential, retail, recreational or any
other use permitted by applicable state and
local law. 	No owner of Lot 5 or any part
thereof shall impair or restrict development
of the Air Space, but shall cooperate fully
with such development and execute any such
further documents or agreements deemed
necessary by [Sorenson] for the development
of such space.
(Emphasis added.) 	Article 2.1.3 also provides for an easement
over lot 5 for ingress and egress “by any other owners, lessees,
guests, employees, contractors, invitees or customers of
[Sorenson] or any subsequent owner(s) of the Air Space or any
improvements constructed thereon” (emphasis added). 	In other
words, the Declaration did not contemplate that lot 5 would be
used exclusively for parking. 	Rather, it bifurcated lot 5 into
two horizontal levels. 	While the bottom level was to be used for
parking, the upper level could be used for any purpose selected
by Sorenson or its successors in interest. 	In short, under the
Declaration, parking and development on lot 5 are not mutually
exclusive. 	Because the amended plat is not inconsistent with the
restrictive parking covenant contained in the Declaration, we
must reject MSI’s claim that the plat amendment modified the
Declaration, thereby eliminating its designation of lot 5 as a
parking area.
¶26 	As additional support for its amendment by implication
theory, MSI points to provisions in the Declaration allowing the
developer to unilaterally amend the Declaration and the plat “for
the purpose of allocating density to Lots owned by the
[developer] or changing the configuration, size or location of
[such lots].” 	Relying on those provisions, MSI argues that the
Declaration could be modified simply by amending the plat. 	We
reject this argument as well. 	The fact that the Declaration
vested the developer with the unilateral authority to amend the
Declaration and the plat in order to alter the configuration,
size, or location of the developer’s own lots does not suggest

Nos. 20040369, 20040370 	10
that the developer could unilaterally terminate restrictive
covenants through a plat amendment alone. 	Nor does it suggest
that amendments to the plat would constitute de facto amendments
to the Declaration itself--particularly where, as here, the
amended plat is not inconsistent with the Declaration. 	While
Sorenson may have had the right to unilaterally amend the
Declaration prior to the sale of lot 8, the undisputed fact is
that it never did so. 	And under the explicit terms of the
Declaration, amending the Declaration subsequent to the sale of
the first lot requires “the vote or written assent of a majority
of the total voting power of the Master Association.”
¶27 	MSI also argues that the plat amendment demonstrates
the intent and understanding of both The View and MSI that lot 5
not be subject to a restrictive parking covenant. 	Intent,
however, is irrelevant because we conclude that the Declaration
and the amended plat, when construed together, are subject to
only one plausible meaning, namely, that the amended plat’s
reference to building units refers to development of lot 5’s air
space rather than to a revocation of the restrictive parking
covenant. 	Well-settled law precludes us from considering
extrinsic evidence to vary the terms of an unambiguous written
agreement. 	The policy behind such law is particularly compelling
here, where the written agreement, which concerns real property,
has been recorded in the public records. 	Parties should be able
to rely on documents of record without fear that their
unambiguous provisions may be set aside on the basis of contrary
extrinsic evidence of intent. 	See Fairbourn Commercial, 2004 UT
54, ¶¶ 10-11. 	We accordingly hold that there are no disputed
issues of material fact and that The View, not MSI, is entitled
to a judgment as a matter of law with respect to the existence of
the lot 5 parking covenant. 	Utah R. Civ. P. 56(c).
¶28 	Notwithstanding the existence of the parking covenant,
MSI suggests that we affirm the result reached by the court of
appeals on the alternative basis that the parking covenant has
been abandoned. 	Because both the district court and the court of
appeals ruled in favor of MSI on the parking claim, neither court
reached MSI’s alternative abandonment defense, and we decline to
consider it in the first instance on certiorari review. 	MSI may,
however, present it on remand.
II. 	THE VIEW’S RIGHT TO STORE SNOW ON LOT 9
¶29 	We now turn to The View’s constitutional takings claim
against Alta. 	The View alleged that Alta’s approval of the
revised snow storage plan constituted a taking of The View’s
property without just compensation in violation of article I,

5 In supporting their respective positions on the takings
claim, The View and Alta rely solely on our takings jurisprudence
under article I, section 22 of the Utah Constitution. 	Neither
party relies on the Fifth Amendment to the United States
Constitution, made applicable to the states by the Fourteenth
Amendment, Chicago, Burlington & Quincy R.R. Co. v. Chicago, 166
U.S. 226, 241 (1897). 	Similarly, neither attempts to delineate
whether the Utah Constitution provides any more protection
against a regulatory taking than does the United States
Constitution. 	Consequently, we analyze the issue solely under
our article I, section 22 jurisprudence. 	See Bernat v. Allphin,
2005 UT 1, ¶ 38, 106 P.3d 707 (refusing to address an issue
inadequately briefed by the appellant).
11 	Nos. 20040369, 20040370
section 22 of the Utah Constitution. 5 	Utah Const. art. I, § 22.
The court of appeals ruled in favor of The View on this issue,
holding that the trial court erred in entering summary judgment
in favor of Alta. 	In doing so, the court of appeals erred.
¶30 	A takings claim presents two distinct inquiries:
First, the claimant must demonstrate some
[protectable] interest in property. 	If the
claimant possesses a [protectable] property
interest, the claimant must then show that
the interest has been taken or damaged by
government action. 	A taking is any
substantial interference with private
property which destroys or materially lessens
its value, or by which the owner’s right to
its use and enjoyment is in any substantial
degree abridged or destroyed.
Strawberry Elec. Serv. Dist. v. Spanish Fork City, 918 P.2d 870,
877 (Utah 1996) (citations and internal quotation marks omitted).
¶31 	Constitutional takings claims fall into two categories:
physical takings and regulatory takings. 	A “physical taking
occurs . . . when there is [either] a condemnation or a physical
appropriation of property.” 	Philip Morris, Inc. v. Reilly, 312
F.3d 24, 33 (1st Cir. 2002). 	In contrast, “[a] regulatory taking
transpires when some significant restriction is placed upon an
owner’s use of his property for which ‘justice and fairness’
require that compensation be given.” 	Id. 	The View’s claim falls
into the latter category inasmuch as it argues that Alta’s

6 In analyzing the takings issue, we focus solely on The
View’s claim that Alta’s adoption of the revised snow storage
plan damaged its right to the use and enjoyment of lot 8. 	While
The View also asserts a protectable property interest in lot 9,
The View’s ability to establish such an interest is dependent
upon the outcome of its easement and estoppel claims, which await
further development in the district court. 	In any event, The
View’s claim that Alta engaged in an unconstitutional taking of
its interest in lot 9 was not an issue encompassed within the
scope of our certiorari review. 	See Coulter & Smith, Ltd. v.
Russell, 966 P.2d 852, 856 (Utah 1998) (review on certiorari is
circumscribed by the issues raised in the petitions).
Nos. 20040369, 20040370 	12
modification of the snow removal plan hampered its enjoyment of
its property interest in lot 8. 6
¶32 	Pursuant to their police power, state and local
governments may enact regulations that do not constitute an
unlawful taking. 	In Colman v. Utah State Land Board, 795 P.2d
622 (Utah 1990), we recognized:
Many statutes and ordinances regulate what a
property owner can do with and on the owner’s
property. 	Those regulations may have a
significant impact on the utility or value of
property, yet they generally do not require
compensation under article I, section 22.
Only when governmental action rises to the
level of a taking or damage under article I,
section 22 is the State required to pay
compensation.
Id. at 627. 	In other words, a taking is not merely any
interference with private property, but is a “substantial
interference with private property which destroys or materially
lessens its value, or by which the owner's right to its use and
enjoyment is in any substantial degree abridged or destroyed.”
Id. at 626 (citation omitted). 	Indeed, the police power allows
government, “without compensation,” to “regulate and restrain the
use of private property when the health, safety, morals, or
welfare of the public requires or demands it.” 	Id. at 627.
Regulations promulgated under that power “are not considered as
appropriating private property for a public use, but simply as
regulating its use and enjoyment.” 	Id.
¶33 	In light of these principles, we conclude that the
court of appeals erred when it reversed the trial court’s summary
judgment in favor of Alta on The View’s takings claim. 	While The

13 	Nos. 20040369, 20040370
View unquestionably has a protectable property interest in lot 8,
there was no evidence that Alta’s adoption of the revised snow
storage plan substantially abridged or destroyed that right.
¶34 	In reversing the summary judgment, the court of appeals
relied on the possibility that Alta might initiate litigation
seeking to enjoin The View from occupying lot 8 during snow
periods. 	The View, 2004 UT App 104, ¶ 36. 	But the possibility
of such litigation was premised on The View’s inability to obtain
suitable alternative snow storage. 	The November 2000 settlement
between Alta and MSI provided for such storage, thereby
eliminating any basis for interfering with The View’s use and
enjoyment of lot 8 during winter months.
¶35 	The court of appeals also found “conflicting evidence
as to the validity and cost-impact of the revised snow storage
plan” approved as part of the settlement between Alta and MSI.
Id. 	The court of appeals therefore found itself “obligated to
conclude that The View would be damaged by the removal of the Lot
9 snow storage designation.” 	Id. 	Mere “damage” to a landowner
caused by a municipal regulation, however, does not rise to the
level of a taking. 	An increase in cost caused by revision of the
snow removal plan does not make the revision a compensable
taking, as it does not substantially interfere with lot 8 or
destroy or materially lessen its value. 	Colman, 795 P.2d at 627.
¶36 	In summary, the revised snow storage plan and its
attendant cost do not prevent The View from engaging in any and
all permissible uses of lot 8. 	Accordingly, even when viewed in
the light most favorable to The View, the facts are insufficient
to establish a regulatory taking. 	Alta was consequently
“entitled to a judgment as a matter of law,” Utah R. Civ. P.
56(c), and the court of appeals erred in concluding otherwise.
CONCLUSION
¶37 	The court of appeals erroneously concluded that the
plat amendment modified the provisions of the Declaration. 	In
fact, the Declaration and amended plat are consistent with one
another and recognize The View’s right to park on lot 5. 	The
court of appeals also erroneously concluded that issues of
material fact precluded summary judgment in favor of Alta on The
View’s takings claim. 	Even when viewed in the light most
favorable to The View, the facts are insufficient to establish a
taking, as Alta was acting squarely within its police powers when
it modified the snow storage plan. 	We therefore reverse the
court of appeals on both issues and remand the case for further
proceedings consistent with this opinion. 	Specifically, we

Nos. 20040369, 20040370 	14
remand for entry of judgment in favor of Alta on the
constitutional takings claim and in favor of The View on the lot
5 parking claim, subject only to MSI’s abandonment defense. 	The
View’s claims of easement and estoppel on the parking issue,
which were not encompassed in our grant of certiorari, are
remanded for consideration on their merits in accordance with the
opinion of the court of appeals.
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¶38 	Associate Chief Justice Wilkins, Justice Durrant, and
Justice Nehring concur in Justice Parrish’s opinion.
¶39 	Having disqualified herself, Chief Justice Durham does
not participate herein.