Harper v. Summit County , 414 Utah Adv. Rep. 21 ( 2001 )

EYRE, District Judge,

concurring and dissenting:

143 I do not agree with the majority's decision directing the court of appeals to remand this case to the trial court. There are sufficient undisputed facts before this court to affirm the court of appeals's decision that the loading facility is not authorized.

T 44 The addition of a $100,000 industrial rock aggregate loading facility is not authorized in a residential or agricultural area as either a permitted or a conditional use.¹ That much is crystal clear even from a cursory glance at the zoning chart within the Summit County Development Code. But the majority believes that the court of appeals "erred in finding that Harpers met their burden of establishing the absence of disputed facts on the accessory use issue," and therefore erred in affirming summary judgment. The majority comes to this result after studying the documents submitted in support of Harpers motion for summary judgment, deciding that none of them "addresses whether the facility is an accessory use on the property" and concluding that "they are not sufficient to resolve the disputes of material fact regarding the accessory use issue raised by the allegations and denials in the pleadings."

45 However, an accessory use is a "subordinate use custormarily [sic] incidental to and located upon the same lot occupied by the main use and devoted exclusively to the main use of the premises." Development Code definition (63). Thus, an "accessory use" is one that attaches to the user's preexisting main use. It is undisputed that Utelite did not use this section of the railroad at all until the loading facility was constructed. The loading facility is therefore the primary and exclusive use, not an accessory use.

£46 Further, it is undisputed that the railroad's use of the property is a nonconforming use of land. As such, the railroad may not be extended or expanded in any fashion. See Summit County Dev.Code at 3.7; see also Utah County v. Baxter, 635 P.2d 61 (Utah 1981). The construction of the loading facility is clearly an impermissible extension or expansion.

{47 The conclusion that Utelite's use is unauthorized is defensible on undisputed facts. Therefore, the court of appeals did not err by shifting to defendants the burden of proving disputed facts. Defendants' attempt to show a dispute of fact is inadequate. They submitted two affidavits, each of which is wholly lacking in any details and specific facts indicating how the loading facility could be an accessory use.² They simply set forth legal opinions, a defect recognized and ruled on by the court of appeals. Only sworn statements containing specific facts are sufficient to create a material issue of fact under rule 56, Utah Rules of Civil Procedure. I would affirm the court of appeals' conclusion that Harpers have met their burden to show the absence of disputed facts as required under rule 56(c), and would also affirm its conclusion that defendants' affidavits were insufficient to create an issue of material fact.

€48 Accordingly, I would affirm the in-junctive relief awarded by the trial court, a remedy clearly anticipated by the development code³ and under Utah Code Ann. § 17-27-283 (1987).⁴

' 49 The undisputed facts support the legal conclusion that the Utelite loading facility is not an accessory use. Therefore, by sending this matter back to the trial court, the majority needlessly prolongs what is already a ten-year wait for Harpers and other plaintiffs.

50 I concur with the majority's decision with respect to due process, open meetings, and attorney fees.

11 51 Judge ALLPHIN concurs in Judge Eyre's concurring and dissenting opinion.

1 . In order to qualify as a conditional use, the development code requires notice and hearing. In this case, no notice and no hearing were provided.

2 . The affidavit of Eric A. Averett states: "[Als the Summit County Building Official and Building Inspector, it was, and is my opinion that the Utelite loading apparatus was an accessory building ." The affidavit says nothing more concerning why the loading facility should be considered an accessory building.

The affidavit of Franklin P. Anderson verifies that he was the author of a letter attached to the affidavit. In that letter, Mr. Anderson states that the facility is a " 'use customarily incidental to' " the railroad and thus "an accessory use."

3 . The development code provides: "The County Attorney, or any owner of real estate adversely affected by a violation of this Code, may institute injuntion [sic], abatement, or any other appropriate legal action to prevent, enjoin, abate or remove any erection, construction, alteration, maintenance, or use in violation of this Code." Summit County Dev.Code at 1.16.

4 . Section 17-27-23 states:

The board of county commissions, the county attorney, or any owner of real estate within the county in which a violation occurs, may, in addition to other remedies provided by law, institute injunction, mandamus, abatement, or any other appropriate action or proceeding to prevent, enjoin, abate, or remove any erection, construction, alteration, maintenance, or use in violation of this code.