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Potter v. South Salt Lake City

Supreme Court of Utah

June 5, 2018

Jeanette Potter, et al., [1] Appellants,
South Salt Lake City, Appellee.

         On Direct Appeal

          Third District, Salt Lake The Honorable Paul G. Maughan No. 140908636

          Craig S. Cook, Salt Lake City, for appellants.

          Jody K. Burnett, Robert C. Keller, Salt Lake City, for appellee.

          Associate Chief Justice Lee authored the opinion of the Court, in which Chief Justice Durrant, Justice Himonas, Justice Pearce, and Justice Petersen joined.


          Lee, Associate Chief Justice.

         ¶1 Jeanette Potter and others filed suit challenging a decision of the South Salt Lake City Council to close a portion of Truman and Burton Avenues. The district court dismissed Potter's claims on summary judgment. We affirm. In so doing we conclude that the petition to vacate was valid under Utah Code section 10-9a-609.5, that Potter has not identified any prejudice resulting from any alleged deficiency in the petition, and that notice of the city council meetings was sufficient under Utah Code section 10-9a-208.

         ¶2 In holding that Potter failed to prove prejudice we revise and clarify the standard set forth in Springville Citizens for a Better Community v. City of Springville, 1999 UT 25, 979 P.2d 332. We hold that a party alleging error by a land use authority is no longer required to show that the "decision would have been different" but for the error. Id. ¶ 31. Instead we conclude that a party can establish prejudice by showing a reasonable likelihood that the error changed the land use authority's decision.


         ¶3 In 2008 the South Salt Lake City Council voted to close a portion of Truman and Burton Avenues in response to a petition by RIM Enterprises. RIM owned a Chrysler dealership on State Street that occupied three separate blocks divided only by Truman and Burton Avenues. And the car dealership sought to expand its operation by consolidating the three properties, thereby complying with Chrysler Corporation's acreage requirement.

         ¶4 The city council conditioned its decision to vacate both streets on the dealership's buying the four parcels on Truman Avenue that abutted a portion of Truman that RIM Enterprises wanted vacated. A plat map reflecting this decision was placed with the city recorder in 2008-to be recorded only upon a showing that the dealership had met the condition. The dealership never purchased the parcels, however, so the two streets were never vacated.

         ¶5 Years passed and RIM Enterprises sold the dealership to Salt Lake Valley Chrysler Dodge in 2014. In May 2014 the dealership filed another petition with the South Salt Lake City Council. This new petition sought to vacate only the portion of the streets adjacent to land the dealership already owned, thus avoiding the need to purchase the four properties on Truman Avenue. After notice and a public hearing the city council denied the petition.

         ¶6 In October 2014 the dealership submitted a revised petition to vacate. The revised petition included mitigation measures aimed at addressing the concerns residents raised during the earlier public hearing. The city sent notices out to residents in the area apprising them of the petition and the public meeting to be held on December 3, 2014. The city also placed large signs with similar language along Truman and Burton Avenues, as required by Utah Code section 10-9a-208(2)(c).

         ¶7 Residents overwhelmingly opposed the action at the December 3 meeting. Only the dealership's attorney spoke in favor during the public comment portion. After taking public comment the council elected to table the discussion until the following meeting, placing the item on the unfinished-business agenda for December 10, 2014.

         ¶8 When the city council turned to the issue at its December 10 meeting, the city attorney addressed the council regarding his legal opinions. He noted that "the decision has already been made to close the streets"-referring to the council's conditional approval of the 2008 petition-"so the real issue here" is whether "the City [is] happy with the additional mitigation measures." Following the city attorney's presentation, several residents, including Potter's current legal counsel, addressed the city council and took issue with the city attorney's comments. One resident remarked, "If the decision has already been made and it doesn't matter, then why are we here?"

         ¶9 The city attorney later addressed the council again and explained that the conditions in the 2008 ordinance did not contain a sunset clause. He noted that if the city council rejected the dealership's 2014 petition "then the previous action remains in place, and at whatever time the conditions of the previous action are met, the streets will be closed but they'll be closed without the mitigation measures that have arisen out of this most recent activity."

         ¶10 These comments seemed to surprise at least some of the members of the city council. One councilwoman expressed frustration with the process and with the attorney's legal advice. She noted the lack of understanding among the councilmembers that the closure "is happening in one form or another" because the 2008 ordinance remained valid and could be invoked whenever the dealership met the conditions.

         ¶11 Following some debate, the South Salt Lake City Council voted five to two to vacate a portion of Truman and Burton Avenues. The council found, as required by statute, that "good cause exist[ed] for the vacation" and that "neither the public interest nor any person w[ould] be materially ...

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