Ludlow v. Salt Lake County Board of Adjustment ( 1995 )

OPINION

BILLINGS, Judge:

We have determined that “[t]he facts and legal arguments are adequately presented in the briefs and record and the decisional process would not be significantly aided by oral argument.” Utah R.App.P. 29(a)(3).

Randy Ludlow petitioned the district court for review of the Salt Lake County Board of Adjustment’s decision granting Elies Herman a variance for her deck. The district court dismissed with prejudice Therese and Randy Ludlow’s Amended Petition for Review because they had not joined Herman as a defendant within the statutory period. We reverse and remand.

On February 10,1993, the Salt Lake County Board of Adjustment (the Board) held a hearing to consider Elies Herman’s application for a rear-yard variance for her deck, which was in violation of county setback ordinances. The Board granted Herman the variance. Herman’s adjoining neighbor, Randy Ludlow, filed a timely Petition for Review of the Board’s decision pursuant to Utah Code Ann. § 17-27-708 (1991). The Petition named the Board as defendant. In it, Ludlow alleged that he had not been notified of the hearing and that the hearing was held without his input. Ludlow also alleged that the Board’s decision to allow the deck to remain was arbitrary, capricious, and in violation of the county’s own setback ordinances. The Petition set forth the' following prayer for relief:

Wherefore, petitioner prays as follows:

1. That this Court review the decision of the Board of Adjustment and overrule its finding and require that the deck located at 1680 Hermitage Circle be removed to comply with the county setback ordinances.

2. That the Court allow the taking of evidence from the petitioner.

3. That the Court deny any variance for the deck.

4. That the Court grant additional relief as is appropriate and just.

The Board did not submit an answer to the Petition. Instead, Ludlow and counsel for the Board entered into a stipulation providing that “the defendant need not answer or otherwise respond to the Complaint of the plaintiff until ten (10) days after the amended complaint has been filed with the Court.” The reasons for the stipulation were listed as (1) “an amended complaint must be filed to join an indispensable party,” and (2) “a survey needs to be completed in order for all issues to be presented to the Court for adjudication.”

Ludlow filed his Amended Petition for Review and Complaint approximately three and one-half months later, naming the Board, Salt Lake County, and Elies Herman as defendants. The Amended Petition for Review remained essentially unchanged, specifically reiterating the request that “the Court allow the taking of evidence from the petitioners.” The Complaint identified various new causes of action not relevant to this appeal. In its Answer to the Amended Petition for Review, the Board denied that Ludlow was not notified of the hearing and alleged “that it is the practice of the Board of Adjustment to send notice of variance hearings to property owners located within 300 feet of the property in question.”

Shortly thereafter, Herman and the Board filed motions to dismiss for failure to join an indispensable party pursuant to Utah R. Civ.P. 12(b)(7). The court granted the motions and entered judgment dismissing “[t]he captioned matter ... against all defendants with prejudice.” Ludlow appeals from the court’s decision.

Jurisdiction to review the Board’s decision is conferred upon the district court by Utah. Code Ann. § 17-27-708 (1991). That section limits the scope of the court’s review to determining whether “the board of adjustment’s decision was arbitrary, capricious, or illegal.” Id. § 17-27-708(2). The section provides:

(4)(a) The board of adjustment shall transmit to the reviewing court the record of its proceedings including its minutes, findings, orders and, if available, a true and correct transcript of its proceedings.

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(5)(a)(i) If there is a record, the district court’s review is limited to the record provided by the board of adjustment.

(ii) The court may not accept or consider any evidence outside the board of adjustment’s record unless that evidence was offered to the board of adjustment and the court determines that it was improperly excluded by the board of adjustment.

(b) If there is no record, the court may call witnesses and take evidence.

Id. § 17-27-708(4)(a), (5). Thus, the district court plays a limited role in reviewing the Board’s decisions. See Patterson v. Smith, 893 P.2d 602 (Utah App.1995).

The question of whether a party is necessary and indispensable is governed by Rule 19 of the Utah Rules of Civil Procedure. Ordinarily, we will not disturb a trial court’s Rule 19 determination absent an abuse of discretion. Seftel v. Capital City Bank, 767 P.2d 941, 944 (Utah App.1989), aff'd sub nom. Landes v. Capital City Bank, 795 P.2d 1127 (Utah 1990).

Rule 19 provides:

(a) Persons to be joined if feasible. A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party....

(b) Determination by court whenever joinder not feasible. If a person as described in Subdivision (a)(1) — (2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable.

Utah R.Civ.P. 19.

“The basic purpose of rule 19 is ‘to protect the interests of absent persons as well as those already before the .court from multiple litigation or inconsistent judicial determinations.’ ” Landes, 795 P.2d at 1130 (quoting 7 Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure: Civil 2d § 1602, at 21 (1986)). If a party’s failure to bring all parties before the court prevents the court from properly reaching the merit’s of the party’s claim, “[t]he deficiency may be overcome by joining the party required or by asserting only those alternative claims for relief that do not require the presence of other parties.” Bonneville Tower Condominium Management Comm. v. Thompson Michie Assocs., Inc., 728 P.2d 1017, 1020 (Utah 1986).

We begin our analysis by considering the first test set forth in Rule 19(a): In Herman’s absence, can complete relief be accorded among those already parties? With respect to Ludlow’s first prayer for relief, that the court “require that the deck located at 1680 Hermitage Circle be removed to comply with the county setback ordinances,” Ludlow cannot obtain complete relief without Herman’s joinder. However, with respect to Ludlow’s second prayer for relief, that he be allowed to present evidence before the Board on whether the variance should be granted,¹ Herman’s joinder is not necessary.

The question before the district court, whether the Board’s decision to grant Herman a variance for her deck was arbitrary, capricious, or illegal, turns first on whether Ludlow was properly notified of the hearing and allowed an opportunity to present evidence in his own behalf. In its pleadings, the Board alleges that its practice is to notify property owners located within 300 feet-of the disputed property. Because Ludlow, according to the Board’s own admission, should have been notified and given an opportunity to present evidence, if the court finds that he was not, the court may well determine the Board’s decision was arbitrary. The proper remedy would be remand to the Board for a new hearing on Herman’s variance application upon notice to all parties. We therefore conclude that complete relief can be accorded between Ludlow and the Board as to this claim.

We next address the second Rule 19(a) question: Whether Herman claims an interest relating to the subject of the action and is so situated that the disposition of the action in her absence may, as a practical matter, impair or impede her ability to protect that interest. Clearly Herman has an interest in the subject of the action. However, the narrow scope of the district court’s review prevents her from presenting any evidence, and as a practical matter, her interest stands or falls with the Board. Thus, we believe that the disposition of Ludlow’s petition for review in Herman’s absence would not have impaired her ability to protect her interest.

Finally, as to the third Rule 19(a) question, we find that Herman’s absence would not leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of their claimed interest. The Board would at worst be required to conduct a rehearing on- whether Herman should be granted a variance, at which time Herman would be notified and allowed to protect her interest. Therefore, Herman was not a necessary party to Ludlow’s petition for review under Rule 19(a), and we need not proceed to the 19(b) question of indispensability. Landes, 795 P.2d at 1130.

In accordance with the foregoing, we conclude that the district court abused its discretion in dismissing with prejudice Ludlow’s Amended Petition for Review. Cf. Bonneville Tower, 728 P.2d at 1020 (holding dismissal of action with prejudice for failure to join necessary party an abuse of discretion). We therefore reverse and remand for further proceedings.

WILKINS, J., concurs.

1 . The dissent acknowledges that, had Ludlow sought an opportunity to present evidence to the Board, Herman would not be a necessary party. ''However,” the dissent states, "this is not the relief Ludlow sought.” In support of this claim, the dissent relies on only a portion of the pleadings, to the exclusion of others. In its initial Petition for Review, Ludlow requests "[t]hat the Court allow the taking of evidence from the petitioners.” In his Amended Petition for Review, Ludlow reiterates that identical request. We disagree with the dissent’s characterization of this prayer for relief as solely a request to present evidence on Herman’s noncompliance with the variance granted her. Indeed, it could not have been such a request in the initial Petition for Review because, as Ludlow states in his Affidavit and Supplemental Memorandum, he was not even aware that Herman was in violation of the variance until a week before he filed his Amended Petition for Review and Complaint, in excess of three months after he filed his initial Petition for Review. We believe that a fair reading of the record indicates that Ludlow requested an opportunity to present evidence as to the granting of the variance as well as, subsequently, an opportunity to present evidence as to Herman’s noncompliance with the variance.