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LJ Mascaro Inc. v. Herriman City

Court of Appeals of Utah

June 21, 2018

LJ Mascaro Inc., Leland Mascaro, and Sheri Mascaro, Appellants,
Herriman City, Appellee.

          Third District Court, Salt Lake Department The Honorable Ryan M. Harris No. 140903070

          Jeffrey T. Colemere and Brady T. Gibbs, Attorneys for Appellants

          J. Scott Brown and Bradley M. Strassberg, Attorneys for Appellee

          Judge Kate A. Toomey authored this Opinion, in which Judges Michele M. Christiansen and Diana Hagen concurred.

          TOOMEY, JUDGE:

         ¶1 Leland Mascaro and Sheri Mascaro (collectively, the Mascaros) and LJ Mascaro Inc. appeal the district court's grant of summary judgment in favor of Herriman City, affirming Herriman City's denial of the Mascaros' request for nonconforming use status. We are asked to determine whether the district court correctly concluded that the Herriman Land Use Appeal Authority's (the Appeal Authority) decision to deny the Mascaros' request was not arbitrary and capricious or illegal. We conclude the Mascaros failed to provide substantial evidence to support a prior legal use of topsoil manufacturing and screening on their property (the Property), and therefore Herriman City's denial of their request was not arbitrary and capricious or illegal. The district court did not err in granting summary judgment in favor of Herriman City. Accordingly, we affirm.


         ¶2 According to the Mascaros, they have owned the Property since 1979, when Leland's grandfather gave it to them as a wedding gift. In 2009, Herriman City annexed the Property, which previously had been within Salt Lake County's jurisdiction. Under the Herriman City Code, the Mascaros' use of the Property to perform topsoil manufacturing and screening was classified as a conditional use, not a permitted use.[1] In 2013, the Mascaros submitted a request to the Herriman Zoning Administrator, seeking a determination that a nonconforming use had been established on the Property. The Zoning Administrator denied the request, and the Mascaros appealed the denial to the Herriman City Planning Commission (the Commission).

         ¶3 The Commission held a hearing during which the Mascaros submitted documents and proffered testimony in an attempt to support their claim that they had been granted authorization for and established their use of the Property for topsoil manufacturing and screening. The Mascaros explained that their family has used the Property for topsoil manufacturing and screening since the early to mid-1950s, and that they continued this activity when they obtained ownership of the Property. They asserted that the Property was located in Salt Lake County and the county did not zone the Property until 1958. Then, in 1978, Riverton City attempted to annex a portion of Salt Lake County, including the Property. The Mascaros informed the Commission that, while the Property was within Riverton City's jurisdiction, topsoil manufacturing and screening was a permitted use because the city had not enacted zoning ordinances until sometime after 1981. But in 1981, a district court declared Riverton City's annexation "null and void and of no effect."

         ¶4 According to the Mascaros, while the annexation was being challenged, they sought a separate permit from Riverton City for a new nonconforming building on the Property. They informed the Commission that Riverton City stated it could not grant the permit because the annexation was being challenged. For the same reasons, Salt Lake County did not grant the permit and the Mascaros built the building without permission.

         ¶5 The Mascaros also provided the Commission a business license application asserting that LJ Mascaro Inc. began operating in 1988. In this application, the Mascaros sought a business license for "trucking, sand, and gravel" operations, but it was instead approved for "phone and mail" use based on the zoning ordinance governing the Property. They also provided several business licenses from the 1990s and 2000s for "Trucking & Courier Services." These licenses authorized a Standard Industrial Classification designation of "421," which included a variety of land use operations, but topsoil manufacturing and screening were not listed among the authorized operations.

         ¶6 The Mascaros also provided documents to the Commission showing that, in 1992, residents near the Property filed complaints with Salt Lake County, expressing their opinions that the Mascaros' business, LJ Mascaro Inc., was a "public nuisance" because "soil, gravel, and other materials" were being transported "across [the] private lane" in the community. Salt Lake County investigated the business, but it decided not to bring legal action "concerning [the Mascaros'] gravel operation . . . [because] it [did] not appear legal action would be successful."

         ¶7 In 1999, when the Salt Lake County Board of Adjustments met to consider the Mascaros' request to expand their nonconforming building "to store and maintain equipment," one member commented, "You are in a residential area and run a business from your home. The current zoning makes you nonconforming. . . . Have you considered moving your business to a more appropriate place for trucking?" The Mascaros asserted that this comment and the approval to expand the nonconforming building established that, at least as of 1999, Salt Lake County recognized that they had established topsoil manufacturing and screening as a legal use of the Property.

         ¶8 As further support for their request for nonconforming use status, the Mascaros provided a letter delivered to them in 2012 from a Salt Lake County councilmember that said that beginning "in 1992 or before, and continually thereafter, LJ Mascaro Trucking has been treated as a non-conforming use, as that has been your presumed status." The councilmember explained that the county had only a twenty-year record retention schedule and that because it was "likely" the county "granted" a nonconforming use to the Mascaros prior to 1992, any record of it "may have been disposed." The councilmember concluded the letter by stating that he "sincerely hope[d] that Herriman takes into consideration our account of your non-conforming use status . . . considering LJ Mascaro Trucking has been granted ...

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