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Specht v. Big Water Town

Court of Appeals of Utah

May 4, 2017

Richard Specht, Appellant,
v.
Big Water Town, Paul Hyde, and Debbie Hyde, Appellees.

         Sixth District Court, Kanab Department The Honorable Wallace A. Lee No. 040600075

          Bruce R. Baird and Dallis Nordstrom Rohde, Attorneys for Appellant

          Jeremy G. Knight and S. Spencer Brown, Attorneys for Appellees

          Judge Kate A. Toomey authored this Opinion, in which Judges Stephen L. Roth and Michele M. Christiansen concurred.

          TOOMEY, Judge

         ¶1 Richard Specht challenges a land use variance and the vacation[1] of a cul-de-sac in Big Water (the Town), which the Town's Board of Adjustment (the Board) and Town Council (the Council) granted in favor of Specht's neighbors, Paul Hyde and Debbie Hyde (the Hydes). Specht appeals the district court's order denying his motion for summary judgment and granting the Hydes' cross-motion for summary judgment. Specht makes two principal arguments. First, he argues the variance was arbitrary, capricious, and illegal because the Board did not make findings as to each of the required conditions of a variance and did not have substantial evidence to support its decision to grant it. Second, Specht contends the cul-de-sac vacation was arbitrary, capricious, and illegal because the Council did not have good cause to support it and did not provide proper notice of its hearings. We affirm.

         BACKGROUND

         ¶2 The Hydes own two adjoining lots, lots 9 and 10, at the end of the Rose Garden cul-de-sac in Big Water, Utah. Each lot is smaller than one quarter of an acre.

         The Variance

         ¶3 In July 2004, the Hydes applied for a building permit to construct a house on lot 9. One week later, they applied for a variance to decrease the rear yard setback requirement on the lot from twenty feet to ten feet to ameliorate the steep downhill grade from the cul-de-sac to their lot and to provide room to install a septic tank. In their variance application, the Hydes explained that, unlike the other lots in the Rose Garden cul-de-sac, theirs was ten feet below the cul-de-sac. They stated that the requested variance would not be contrary to the public interest or substantially affect the area's master plan, because there were no neighbors to the rear of their lot and it could not be seen from the main road.

         ¶4 In its July 20, 2004 meeting, the Board granted the Hydes' variance application. In making its determination, the Board considered the variance application, a proposed plat map of the cul-de-sac with the smaller setback and with the vacation of a portion of the cul-de-sac, a letter from the health department, the applicable zoning ordinances, and statements made during the meeting. At the opening of the meeting, the Board recognized it could not grant the variance unless it met all five conditions required for a variance under the law. See infra ¶ 23. It proceeded to hear testimony about the lot and discuss whether the Hydes qualified for a variance.

         ¶5 According to the meeting minutes, the Hydes stated that when they bought the lot, it was six feet below the cul-de-sac at about a 5% grade, but a neighbor later raised the cul-de-sac by four feet. This alteration significantly increased the slope, limiting access to the Hydes' lot. They explained that decreasing the setback by ten feet and reducing the diameter of the cul-de-sac would allow them to build a driveway with an 8% grade. The Board observed that although each of the cul-de-sac lots covers less than one quarter of an acre, most of the other lots in the zoning district are half-acre lots.

         ¶6 As the Hydes indicated in their variance application, they needed the variance, in part, to install a septic system on their lot. The Board discussed this at the meeting and asked if the small size of the lot prevented them from installing a septic system. The Hydes reported that the lot was not too small for a septic system and submitted a letter from the health department to that effect.[2] The Board noted the Hydes needed such a system. The Hydes explained the variance would enable them to install the septic system without encroaching on neighboring land owned by the Utah School and Institutional Trust Lands Administration.

         ¶7 The minutes reflect that the Board audibly read each of the five conditions required of a variance. See infra ¶ 23. It emphasized again that, unlike the Hydes' lot, most of the lots in the zoning district were half-acre lots and did not have a problem with the setback requirements: "The setbacks [were] designed for half-acre lots. So that makes it a hardship to abide by the setbacks . . . ." The Board asked if granting the variance would be harmful to other property owners in the area, and whether it would" go against the whole future development of the community." It recognized that the applicant must not be the one who created the hardship and that the hardship must not be common to other properties in the area. The Board determined that the Hydes did not create the hardship in this case; rather, it was caused by the neighbor who had raised the cul-de-sac and limited the Hydes' access to their property. After discussing the five conditions, the Board reached a unanimous decision to grant the variance because the Hydes' application met "all the requirements for the variance."

         The Vacation of the Cul-de-sac

         ¶8 In January 2004, the Hydes requested vacation of a portion of the cul-de-sac. The Town's Planning and Zoning Committee (the Committee) directed them to hire a certified surveyor to redraw the plat with the proposed changes before it would consider their request. In August 2004, the Committee considered the Hydes' request at its regular meeting, and they presented a rendering of the plat with the proposed vacation. They explained that reducing the cul-de-sac's 100-foot diameter to a 60-foot diameter would mitigate the steep slope of their driveway because it would give them more space to grade it. They also noted that the vacation would provide enough space to allow another neighbor to park a vehicle on his property rather than on the street. Specht also spoke and mentioned that one of the reasons he bought his property was because of the wide cul-de-sac, which made it easy to turn around.

         ¶9 After hearing from the Hydes and Specht, one committee member moved to recommend approval of the vacation to the Council. The Committee was split on its recommendation, with two members voting to recommend the vacation and two voting against it. The Committee announced that the Council would hold a public hearing on the request.

         ¶10 On August 20, 2004, the Town posted, in three separate public places, notice of the Council's public hearing set for September 21, 2004. The notice announced that the Council would hear questions and comments regarding "[a] petition to vacate the diameter of the [Rose Garden] cul-de-sac."

         ¶11 According to the Council hearing minutes, a council member spoke about the vacation and noted that the Town's zoning ordinance allowed a cul-de-sac to have a diameter as small as 60 feet. She stated that after inspecting the cul-de-sac, she did not see a problem with reducing it and that "[u]nless there [was] compelling evidence from adjoining property owners, " the Council should support the vacation. The Council then opened the hearing for public comment. Specht was the first to comment. He displayed some pictures of a truck delivering cinderblocks to a property on the cul-de-sac and explained that the truck could not turn around there. According to Specht, all of the lots in the cul-de-sac sat on a hill, and therefore, the Hydes were not alone in dealing with that issue. Specht also asserted that Kane County and the "national code" do not allow a cul-de-sac to be as small as 60 feet in diameter.

         ¶12 After Specht finished, Mr. Hyde commented. He said that it was Specht who raised the elevation of the cul-de-sac, which now sat four and a half feet higher than when the Hydes purchased their property. According to Hyde, Specht "brought in load after load of any kind of material he could get his hands on, " such as" broken up concrete, broken up asphalt, [and] river boulders, " to elevate the cul-de-sac. Hyde explained that as a result, the Hydes' driveway was on a 14% grade but with the variance and the vacation, they could lower it to an 8% grade, "which is still steep but . . . workable." Hyde added that he had spoken with "every emergency agency that might be entering [the] cul-de-sac" and none of the agencies objected to the vacation. Hyde finished by reiterating that he and his wife requested the vacation to" obtain reasonable access to their property, " which they did not have because of a condition that Specht created.

         ¶13 Another resident commented that he wished the Town would "stick to what [was] drawn out." Mrs. Hyde responded by explaining that" [w]hen they bought the property, they did not have a problem with the size of the cul-de-sac" and that the building up of the cul-de-sac created the need for a vacation. She was the last to comment. At the close of the hearing, all five members of the Council voted to approve the vacation.

         ¶14 At its January 2005 public hearing, the Council officially approved the vacation by amending ordinance 2004-233. The amendment provides that "[t]he Town Council has found good cause for vacation of a portion of the cul-de-sac" and that "this vacation will not be detrimental to the general interest" of the Town.

         District Court Review

         ¶15 In October 2004, Specht petitioned the district court to review the Board's and the Council's decisions, claiming the decisions were arbitrary, capricious, and illegal. The petition named the Town but did not identify the Hydes as respondents.[3] Specht filed a motion for summary judgment, and the Town filed a cross-motion for summary judgment. Specht made three arguments. First, he argued the Town's issuance to the Hydes of a building permit for the construction of their house was illegal because their quarter-acre lot did not meet the Town's zoning requirement that lots be a minimum size of one half acre. Second, Specht argued the variance was arbitrary and capricious because it was not supported by substantial evidence. Third, Specht argued the vacation was illegal because the Town did not provide proper notice of the Planning and Zoning meeting or the Council hearing. The court granted Specht's motion and ordered the Town "to require the Hydes to combine their lots in compliance with Utah State law to bring their lots into compliance with the Zoning Ordinance." The court found there was substantial evidence to grant the variance but concluded it was illegal because the Hydes' lot did not meet the zoning requirement. Although the court found that the Town complied with the notice requirement that it "post such notice for four consecutive weeks in three public places in that municipality, " it concluded the vacation was illegal because the Town did not prove that Specht and other affected neighbors received proper notice as Utah law required.

         ¶16 In December 2006, the Town filed a rule 60(b) motion for relief from the district court's order of summary judgment. See Utah R. Civ. P. 60(b). In its motion, [4] the Town explained that it had inadvertently overlooked a provision of its code governing non-conforming lots, which permitted the Hydes to obtain the necessary permits to build on their lot.[5] The Town argued the district court should vacate the order of summary judgment because the order "would require [the Town] to make a good faith-but likely futile-effort to require the Hydes to combine their lots and not enjoy the benefit of the zoning ordinance's [non-conforming lots] provision." As to vacation of the cul-de-sac, the Town argued that newly discovered evidence suggesting the Town provided proper notice to Specht and other affected neighbors was sufficient for the court to conclude that the Town complied with the notice requirements. In the alternative, the Town argued the new evidence created a genuine dispute as to whether the Town complied with the notice requirements, and therefore summary judgment on that issue was inappropriately granted. The court summarily granted the Town's motion and vacated its order granting Specht summary judgment. It is unclear upon which ground the court vacated its order.

         ¶17 While the Town's rule 60(b) motion was pending, the Hydes intervened in the action. After several more years of litigation and after the parties stipulated to the administrative record for the district court to review, Specht again moved for summary judgment. In response, the Hydes, acting pro se, filed a cross-motion for summary judgment.

         ¶18 In his motion for summary judgment, Specht made the same arguments that he makes on appeal. He argued the variance was illegal because the Board did not make all of the necessary statutory findings and the Board's decision was not supported by substantial evidence. Specht also argued the vacation was illegal because the Town did not provide proper notice of the Planning and Zoning meeting and the Council's hearing, there was no good cause for granting the vacation, and Specht was materially harmed by the vacation. In their cross-motion, the Hydes argued the Board's decision was supported by substantial evidence and it "followed all legal requirements to grant [the] variance." They further argued that the Council properly granted the vacation, which did not harm Specht, and that the Town complied with all notice requirements.

         ¶19 After oral argument on the motions for summary judgment, the district court issued a memorandum decision and order in which it denied Specht's motion and granted the Hydes' cross-motion. The court noted the Board "heard from citizens and from Mr. and Mrs. Hyde" and "reviewed the applicable plat map and a letter from the health department." The court concluded that "this evidence qualifies as substantial evidence because it is relevant, relates to standards for granting a variance, and is credible." The court further explained that "[a]lthough the findings of the board are oral findings, memorialized in minutes of the meeting, and by no means perfect, the Court finds they are sufficient for the Court to conclude the board carefully considered and wrestled with the evidence both favorable and contrary to the requested variance." In reaching its decision on the vacation, the court first addressed whether the Council's decision was a legislative act or an administrative act. The court concluded the Council's decision to grant the vacation was an administrative act "because it did not create new law, but merely executed or implemented existing law, " and under Utah law, Specht was required to exhaust his administrative remedies before he could petition the district court for review. The court found that Specht did not exhaust his administrative remedies and therefore it lacked jurisdiction to review the Council's decision to grant the vacation. Specht appeals.

         ISSUES AND STANDARDS OF REVIEW

         ¶20 Specht raises two issues on appeal. First, he contends the variance was arbitrary, capricious, and illegal because the Board did not make findings as to all the conditions required of a variance and the findings it did make were not supported by substantial evidence. Second, Specht contends the cul-de-sac vacation was arbitrary, capricious, and illegal because there was no good cause for allowing it, it caused material ...


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