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Checketts v. Providence City and Providence City Appeal Authority

Court of Appeals of Utah

March 22, 2018

Chris Checketts and Sandra Checketts, Appellants,
Providence City and Providence City Appeal Authority, Appellees.

          First District Court, Logan Department The Honorable Brandon J. Maynard No. 140100362

          Stephen K. Christiansen, Attorney for Appellants

          Craig M. Call and Jonathan W. Call, Attorneys for Appellees

          Judge Gregory K. Orme authored this Opinion, in which Judges Kate A. Toomey and Diana Hagen concurred.

          ORME, Judge

         ¶1 After Providence City (the City) notified Chris and Sandra Checketts of its determination that their home business violated several local ordinances, the Checkettses brought the matter before the Providence City Appeal Authority (the Appeal Authority). The Appeal Authority solicited comments from the public and permitted the parties to present evidence and argument at a hearing, and in the end, it concluded that the City's decision was not arbitrary, capricious, or illegal. The Checkettses sought review of the Appeal Authority's decision in the district court, with even less success: the court concluded that the decision was adequately supported by the record and granted the City an award of attorney fees. The Checkettses now appeal the decision of the district court. We affirm the court's determination that the Appeal Authority's decision was proper but reverse its decision to award attorney fees to the City.


         ¶2 The Checkettses own two noncontiguous lots in a neighborhood situated within a "Single Family Traditional" zone (SFT Zone) of Providence, Utah. The first lot (the Residence Lot) has been the Checkettses' residence for more than twenty years. Their second lot (the Business Lot) is three doors down from the Residence Lot. Prior to 2005, the Checkettses built a shed on the Business Lot, which they used for storing personal items.

         ¶3 The Checkettses are business owners. In 2003, the City granted them a license to operate a home business, "Custom Counter Tops, " on the Residence Lot. The 2003 license described the business activities of Custom Counter Tops as "[receiving] orders by fax or phone for countertops" and "[a]ssembl[ing], deliver[ing] and install[ing] tops on [site] in homes mostly in the Cache Valley area." The following year, the City issued the Checkettses a new business license, which described their business activities as manufacturing and installing solid surface counter tops. The City renewed that license annually until 2008.

         ¶4 As the Checkettses were getting their home business off the ground, they apparently vacillated on how to best use the Business Lot. In June 2004, they applied for a permit to build a shed "addition" on the lot, without indicating that it would be used for business purposes. The stated purpose of this addition was to "add[] to the square footage" of the existing shed so they could "stor[e] personal vehicles/mechanical toys." But although the City approved the application, the building permit expired before construction commenced. Then, in November 2005, the Checkettses applied for a second building permit, this time indicating that the proposed shed addition would be used for "commercial" purposes. The City approved the second application, and, by May 2007, the Checkettses had constructed their shed and it had passed all necessary inspections. Significantly, the City made express reference to the first application in its decision to approve the second.

         ¶5 In June 2008, several of the Checkettses' neighbors filed a complaint with the City regarding the activities the Checkettses were conducting on the Business Lot.[1] The Checkettses, their neighbors claimed, had been operating heavy machinery to manufacture and sell large slabs of granite on the lot, and they had also been inviting the public into the neighborhood to view samples of finished countertops. A few weeks later, the City mailed a letter to the Checkettses notifying them that they were operating their business "in violation of Providence City Ordinances" (the City Code) and ordering them to relocate their business within six months.

         ¶6 Months passed, and in May 2009, the City sent another letter to the Checkettses referencing the previous communication regarding compliance deadlines. The Checkettses responded by claiming unexpected financial difficulties and requesting an extension. The City granted their request, extending their compliance deadline to December 31, 2009. A few weeks before the compliance deadline expired, the City extended it by one year to December 2010 based on "several options" that would bring the Business Lot into compliance, including purchasing the adjoining lot. In February 2010, the Checkettses sent the City a letter informing it that they were moving forward with purchasing a strip of land extending from the Residence Lot to the Business Lot and that their understanding was that this purchase would bring them into compliance.

         ¶7 In April 2011, after seeking an advisory opinion on the status of the Checkettses' business from the Office of the Property Rights Ombudsman, the City informed the Checkettses that it would not renew their business license that year and instead invited them to apply for a conditional use permit (CUP). The Checkettses did so, and on May 24, 2011, the City Land Use Authority (the LUA) held a public hearing to consider the matter. Less than one month later, the LUA approved the Checkettses' CUP application, thereby permitting the Checkettses to continue operating their business on the Business Lot, subject to several conditions.

         ¶8 Three of those conditions are significant in light of the events that followed. First, the Checkettses agreed to comply with a landscaping plan for the Business Lot, which they were to "complete[] within 45 days of the approval of the Conditional Use." Second, the Checkettses agreed to bring their use of the Business Lot into compliance with all "rules, regulations, codes, and ordinances." And third, when the Checkettses had filed their application for a building permit in 2005, the City Code provided that a "Home Business" was "any use conducted entirely on [the] homeowner's land." Thus, because the Checkettses owned the Business Lot, their business fit the definition. But in the intervening years, the City Code was amended to require that a homeowner's business be "conducted on land containing the [homeowner's] primary dwelling" to qualify as a "Home Business." For this reason, to bring the Checkettses' use of their land into compliance with the new zoning ordinance, the LUA ordered them to combine their two lots into a single parcel by means of a one-foot strip of land connecting the properties, which the Checkettses had already acquired for that purpose. This, the LUA explained, would require that the Checkettses obtain the City's approval.

         ¶9 Yet even after they had procured their CUP, the Checkettses continued to miss deadlines. On July 6, 2011, they sent the first of several letters to the City requesting relief from the 45-day window for completing the CUP's landscaping condition, citing their neighbors' appeal of the LUA's CUP decision to the Appeal Authority as the reason for their delay. Then, in September 2011, they submitted an application to the City to join the Residence Lot and the Business Lot into a single parcel, but they included a request that the City hold their application in abeyance until the neighbors' appeal was resolved. In response to these and similar communications between July 2011 and March 2014, the City did not expressly grant the Checkettses any extension or stay of the 45-day window, but neither did it disallow an extension or stay or affirmatively hold them in violation of any applicable condition or ordinance. In the meantime, the neighbors' appeal made its way from the Appeal Authority to the district court, where the LUA's decision to issue the CUP was ultimately upheld.

         ¶10 Finally, on March 6, 2014, the City notified the Checkettses that they were operating their business in violation of several sections of the City Code by "[m]aintaining a land use that is not allowed in the zone within which the land use is located." In response, the Checkettses filed an application to amend their existing CUP. But rather than considering the Checkettses' application, the City returned it to them, explaining that there was no longer any valid CUP to amend.

         ¶11 The Checkettses challenged the validity of the City's actions before the Appeal Authority.[2] After holding a hearing on the matter and receiving comments from the public, the Appeal Authority ruled in favor of the City. In articulating its decision, the Appeal Authority explained that the Checkettses' business "has never been a permitted use [of the Business Lot] in the SFT Zone without a CUP" and that the Checkettses had "not shown that all the elements necessary to prove equitable zoning estoppel are present." It made clear, however, that if either party filed a timely petition for judicial review in the district court, the effect of its ruling would be "stayed pending final disposition of that appeal."

         ¶12 Following their loss before the Appeal Authority, the Checkettses petitioned the district court for review. The parties filed cross-motions for summary judgment, and the court denied the Checkettses' motion and granted summary judgment to the City. Additionally, the court granted the City's motion for an award of attorney fees and costs under section 13-43-206(12) of the Utah Code. That section provides that

if the same issue that is the subject of an advisory opinion [from the Office of the Property Rights Ombudsman] is listed as a cause of action in litigation, and that cause of action is litigated on the same facts and circumstances and is resolved consistent with the advisory opinion[, ] . . . the substantially prevailing party on that cause of action . . . may collect reasonable attorney fees and court costs pertaining to the development of that cause of action from the date of the delivery of the advisory opinion to the date of the court's resolution[.]

         Utah Code Ann. § 13-43-206(12)(a)(i)(A) (LexisNexis Supp. 2017). The Checkettses paid the award "under protest" and now appeal ...

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