McElhaney v. City of Moab , 848 Utah Adv. Rep. 38 ( 2017 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2017 UT 65IN THE
SUPREME COURT OF THE STATE OF UTAH
JERAMEY MCELHANEY and MARY MCELHANEY,
Appellees,
v.
CITY OF MOAB and MOAB CITY COUNCIL,
Appellants.
No. 20160142
Filed September 21, 2017
On Direct Appeal
Seventh District, Moab
The Honorable Lyle R. Anderson
No. 140700048
Attorneys:
Craig C. Halls, Blanding, for appellees
Christopher G. McAnany, Grand Junction, CO,
for appellants
JUSTICE PEARCE authored the opinion of the Court in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE DURHAM and JUSTICE HIMONAS joined.
JUSTICE PEARCE, opinion of the Court:
INTRODUCTION
¶1 The Moab City Council (Council) denied Mary and Jeramey
McElhaney’s application for a conditional use permit to operate a
bed and breakfast in their residential neighborhood. The
McElhaneys appealed to the district court, which reversed the
Council’s decision. Moab City (Moab) and the Council seek our
review. We first clarify that, contrary to what we have suggested in
some cases, we review the district court’s decision and not the
Council’s. We next conclude that the district court correctly
recognized that the Council had not generated findings sufficient to
MCELHANEY v. CITY OF MOAB
Opinion of the Court
support its decision but erred by refusing to send the matter back to
the Council for the entry of more detailed findings of fact and
conclusions of law. Accordingly, we vacate the district court’s
decision and remand with instructions to the district court to remand
the matter back to the Council.
BACKGROUND
¶2 Mary and Jeramey McElhaney (collectively McElhaneys)
submitted an application for approval of a conditional use permit for
a bed and breakfast facility to be located on their property. The
McElhaneys’ property is located in an R-2 residential zone. An R-2
zone allows residential dwellings and limited commercial uses.
MOAB, UTAH, MUN. CODE § 17.45.020 (2017). The Moab Municipal
Code recognizes that a bed and breakfast facility may be allowed, in
some circumstances, as a conditional use in an R-2 zone. Id.
§ 17.09.530(B). The proposed bed and breakfast would be the only
commercial property in a cul-de-sac of single-family residences. 1 At
the time of their application, the McElhaneys operated a child-care
business on the street, which they planned to close once they opened
the bed and breakfast.
¶3 In September 2014, the Planning Commission (Commission)
convened a public hearing to review the application. Several
neighbors voiced their concerns at the hearing. Comments primarily
addressed issues of traffic, noise, parking, lighting, storm water
drainage, and general incompatibility with the neighborhood. The
Commission directed city staff to investigate the concerns and report
back. The McElhaneys wrote a letter to the Council to address the
concerns raised at the public hearing. They indicated that the bed
and breakfast would include off-street parking, decrease traffic once
they closed the daycare, be constructed in a way that avoided
drainage issues, and ultimately increase property values.
¶4 The city staff investigated the complaints and the
McElhaneys’ proposed solutions. For example, the staff examined
the concerns about increased traffic. The staff estimated that a bed
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1 The Council amended Moab Municipal Code section
17.09.531(9)(B)(1) in 2017 to specifically prohibit bed and breakfasts
“on a cul-de-sac [or] dead end street.” The parties have not asked us
to opine on the impact of the amendment on this dispute.
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and breakfast would generate up to 8.9 average daily trips per unit—
fewer than a single-family residence’s 10 to 12 average daily trips. It
also found that the McElhaneys’ plan included sufficient off-street
parking to meet the Moab Municipal Code’s requirement.
¶5 The Commission recommended approval of the conditional
use permit, subject to the following conditions:
1. The bed and breakfast shall be reviewed each
year for code compliance;
2. All lighting shall be downward directed and full
cutoff as required by [Moab Municipal Code]
17.09.660(H), Lighting Plan.
3. Fencing and/or landscaping shall be used to
buffer the parking area and the entrance from the
street. . . .
4. The daycare center will discontinue operations
once the bed and breakfast facility is operational.
The Commission found that the McElhaneys could mitigate the
negative impact of the bed and breakfast if it abided by these
conditions.
¶6 The Council, acting as the land use authority, considered the
conditional permit application at a public hearing. Citizens again
voiced a number of concerns. Increased noise and traffic were the
most frequently aired problems. Many expressed unease that the bed
and breakfast would attract tourists with loud Jeeps, utility task
vehicles (UTVs), and all-terrain vehicles (ATVs). Nearly everyone
who spoke at the Council meeting worried that visitors to the bed
and breakfast would drive motorcycles or ATVs up and down the
hill past their houses multiple times. Many also feared that the
increase in traffic would endanger neighborhood children who
frequently play in the streets. Several residents also commented that
the presence of a commercial property would alter the integrity and
dynamic of the neighborhood. A few people complained of potential
light pollution, decreased property values, and possible road
deterioration.
¶7 The Council denied the McElhaneys’ application by a 3-1
vote at a Council meeting in November 2014. The Council did not
make explicit findings on whether the proposal met the
requirements the Moab Municipal Code imposes. However, each
councilmember explained the rationale behind his or her vote.
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¶8 Councilmember Kirstin Peterson voted against the permit.
She suggested that the proposed use did not meet the criteria that it
be “consistent with the city of Moab general plan.” See id.§ 17.09.530(H)(7). She noted that, under Moab’s general plan, “one of
the five goals is to restrict commercial development in residential . . .
zones,” and she believed that approval of the conditional use permit
would effectively “force a commercial business on a residential area
that clearly is not interested in creating a commercial zone.”
Considering “the unique characteristics of this neighborhood,”
Councilmember Peterson said the bed and breakfast is “not an
appropriate use.”
¶9 Councilmember Heila Ershadi also voted against the
proposal. She stated that the “number one concern” among locals
was “the character of the town.” She concluded that because locals
worried that “the tourism trade is just taking over and there’s less
and less space that belongs to locals,” she could not support the
McElhaneys’ proposed use.
¶10 Councilmember Kyle Bailey was the third vote against
grant of the permit. Bailey reasoned that “the clear intent of [the
minimal negative impact requirement] was to listen to the people in
the neighborhoods and to do what the neighborhoods wished.” He
stated that the bed and breakfast “is going to be an impact on the
neighborhoods and I can’t support this.” Councilmembers Peterson,
Ershadi, and Bailey did not speak directly to whether the
McElhaneys could mitigate the potential adverse impacts or why the
conditions the planning commission recommended would be
insufficient to ameliorate the bed and breakfast’s negative effects. 2
¶11 Only Councilmember Gregg Stucki voted to approve the
McElhaneys’ conditional use permit. He spoke from his experience
as a bed and breakfast owner. He first explained that the conditional
use permit system operated by “rules that are in place and not our
own personal preferences or public opinion.” He addressed “some
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2 Councilmember Peterson briefly remarked that certain uses
might be compatible “only if certain conditions are required that
mitigate or eliminate detrimental impacts.” However, she did not
comment on how the McElhaneys had failed to propose ways to
mitigate potential adverse impacts or the Commission’s mitigation
recommendations.
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incorrect assumptions . . . about the type of people that frequent [bed
and breakfasts].” He opined that “[b]y and large, [bed and breakfast]
guests are well educated, they’re successful professionals, they tend
to be active, health[-] and environmentally-conscious.” Based on this
observation, Stucki said that the McElhaneys would not likely “be
able to buck the trend and cater primarily or exclusively to ATV and
motorcycle enthusiasts.” He concluded that bed and breakfasts
“have not been, nor are they currently a menace or disruption to the
regular flow of neighborhoods that some believe they could be.”
¶12 The McElhaneys appealed to the district court. At a hearing
before the court, the McElhaneys argued that among the public’s
concerns of “appearance, architecture, scale, design, noise, traffic,
[and] parking,” the key complaints included “the traffic and the
noise.” At the hearing, the judge expressed dismay at the Council’s
failure to articulate the basis for its decision. The district court
complained that in the Council’s assumed role as fact finder, it didn’t
“actually find facts.” Moab responded that it believed the Council
had produced an appropriate order, but that if the court identified
“any defect in [the decision] process . . . the appropriate remedy
. . . is to remand for further findings.”
¶13 The district court overturned the Council’s decision. First, it
held that speculative evidence “d[id] not support a finding of undue
increase in traffic.” Because the record did not indicate the number
of homes on Arches Drive, the court took judicial notice of a Google
map. 3 The court also found that concerns about increased noise
constituted “mere speculation.” It reasoned that any negative noise
impact would be effectively mitigated by the McElhaneys’ residence
at the bed and breakfast and Moab’s authority to deny renewal of
the annual permit. The district court suggested that the permit might
have been denied “because of other negative effects that are not
‘clearly minimal.’” But it held that “the City has a responsibility to
articulate what those negative effects are likely to be” and concluded
that Moab had failed to do so. Because the McElhaneys met specified
requirements for obtaining a conditional use permit, and since “[t]he
only contrary evidence is not substantial, but speculative only, based
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3 The district court opined that it could take judicial notice of the
map under Utah Rule of Evidence 201, which allows a court to take
judicial notice of a fact that “is not subject to reasonable dispute.” We
are not asked to review this decision.
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on the expressed fears of neighbors,” the district court overturned
the Council’s decision to deny the McElhaneys’ application.
¶14 Moab appeals the district court’s decision. We have
jurisdiction under Utah Code section 78A-3-102(3)(j).
STANDARD OF REVIEW
¶15 We have said that “‘[w]hen a lower court reviews an order
of an administrative agency and we exercise appellate review of the
lower court’s judgment, we act as if we were reviewing the
administrative agency decision directly’ and ‘do not defer, or accord
a presumption of correctness, to the lower court’s decision.’” Carrier
v. Salt Lake Cty., 2004 UT 98, ¶ 17, 104 P.3d 1208 (citation omitted).
The parties disagree about what it means to “review[] the
administrative agency decision directly.” See id.¶16 The McElhaneys contend that we should review the
Council’s decision and not the district court’s order. Moab, in
contrast, attacks the district court’s order and not the underlying
Council decision. Moab argues that “[l]ack of deference to a trial
court judgment does not mean that the appellate court must ignore
the trial court decision.”
¶17 The parties’ difference of opinion nicely frames the two
ways in which our case law can be read. If you focus on the part of
the standard that states, “we act as if we were reviewing the
administrative agency decision directly,” you could be tempted to
conclude that we will ignore the district court’s holding and act as if
that proceeding never took place. See id. (citation omitted). If you
focus on the “do not defer, or accord a presumption of correctness, to
the lower court’s decision” portion, then the test looks more like how
we review a court of appeals decision on a petition for certiorari. See
id. (citation omitted).
¶18 The statement that we review administrative decisions
challenged on appeal “just as if the appeal had come directly from
the agency” emerged from our holding in Bennion v. Utah State Board
of Oil, Gas & Mining, 675 P.2d 1135, 1139 (Utah 1983). There, we
analyzed what standard of review we should apply “in reviewing
the district court’s judgment” in an appeal of a decision of the Board
of Oil, Gas and Mining. Id. We noted that “a minority” of courts
“affords some deference to the reviewing judgment of the lower
court.” Id. at 1140. But we opted to follow the majority approach that
“gives no presumption of correctness to the intervening court
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decision, since the lower court’s review of the administrative record
is not more advantaged than the appellate court’s review.” Id. at
1139.
¶19 In Bennion, we did not analyze whether the order we
review is that of the administrative body or of the intermediate
court. The cases we relied upon to reach our decision in Bennion
appear to go both ways on that question. Many of them stood for the
proposition that a court should “review the judgment of the
[intermediate] court without any presumption of its correctness.”
Ala. Pub. Serv. Comm’n v. Nunis, 39 So. 2d 409, 412 (Ala. 1949); accord
Kelly v. Kansas City, 648 P.2d 225, 229 (Kan. 1982) (“[I]n reviewing a
district court’s decision the Supreme Court will, for the purpose of
determining whether the district court observed the requirements
and restrictions placed upon it, make the same review of the
administrative tribunal’s actions as does the district court.”); Cook v.
Iowa Dep’t of Job Serv., 299 N.W.2d 698, 701 (Iowa 1980) (“[W]hen this
court reviews a decision of a district court . . . the sole question is
whether the district court correctly applied the law.” (citation
omitted)); see also Gourley v. Bd. of Trs. of S.D. Ret. Sys., 289 N.W.2d
251, 255 (S.D. 1980) (reviewing the trial court’s order and finding, in
part, that “the trial court erred in its ruling on the law” but that the
error was harmless).
¶20 But Bennion also cited cases that either reviewed directly
the administrative body’s order or used language that could be
interpreted as a mandate to ignore what happened in the district
court. See Urban Council on Mobility v. Minn. Dep’t of Nat. Res., 289
N.W.2d 729, 733 (Minn. 1980) (“[I]f the record, when considered in
its entirety, contains substantial evidence supporting the
administrative decision, this court must uphold the agency ruling.”);
Wyo. State Dep’t of Educ. v. Barber, 649 P.2d 681, 690 (Wyo. 1982)
(analyzing the underlying board decision and concluding that “[t]he
Board in no way acted unlawfully, illegally, or in violation of
appellee’s constitutional rights”); Merrill v. Dep’t of Motor Vehicles,
458 P.2d 33, 38 (Cal. 1969) (in bank) (“[T]he trial and appellate courts
occupy identical positions with regard to the administrative record,
and the function of the appellate court, like that of the trial court, is
to determine whether that record is free from legal error.”); Smith v.
O’Keefe, 293 N.E.2d 142, 143 (Ill. App. Ct. 1973) (“[T]he principal
point in this appeal is whether or not the findings of the Board were
against the manifest weight of the evidence.”); N. Las Vegas v. Pub.
Serv. Comm’n, 429 P.2d 66, 68 (Nev. 1967) (“The function of this court
is the same when reviewing the action of the district court in such a
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matter.”); Norway Hill Pres. & Prot. Ass’n v. King Cty. Council, 552
P.2d 674, 679 (Wash. 1976) (en banc) (“[W]e note that an appellate
court, upon appeal from a superior court’s application of any
particular standard in reviewing an administrative decision, ‘applies
the same standard directly to the administrative decision.’” (citation
omitted)).
¶21 None of the cases considers the costs and benefits of
reviewing either the administrative decision or the intermediate
court’s order. Bennion similarly did not spend any energy analyzing
whether we should review the administrative decision directly and
disregard what happened in the intermediate court. And although
we framed the question in terms of what standard we apply in
“reviewing the district court’s judgment,” we then appear to review
directly the Board’s decision. See Bennion, 675 P.2d at 1139, 1144
(finding “no abuse of discretion in the Board’s ordering”). But again,
what we did seems at odds with what we said. If we truly believed
that we were reviewing the administrative decision directly, we
should have said as much, rather than adding the qualifying
statement that we act “just as if” we were reviewing the agency
decision directly. See id. at 1140 (emphasis added). Nor would we
have needed to say that we neither defer nor presume the
correctness of the district court decision because that decision would
not be before us. And it appears that since Bennion, even though we
have said that we review the agency decision directly, we have never
stopped to consider whether that is an appropriate reading of
Bennion or articulated why we would do that. Accordingly, we have
never thoughtfully considered the proper approach.
¶22 We have, however, recently analyzed whether, when
presented with an appeal from the decision of an agency’s executive
director reviewing the actions of an agency board, we review the
underlying board’s decision or the director’s. Utah Physicians for a
Healthy Env’t v. Exec. Dir. of the Utah Dep’t of Envtl. Quality, 2016 UT
49, ¶ 32, 391 P.3d 148. In Utah Physicians, the Utah Division of Air
Quality (UDAQ) approved changes at a refinery. Id. ¶ 1. The
petitioners appealed UDAQ’s decision to the Executive Director, and
the Executive Director issued a final order approving the changes. Id.
On appeal, we declined to directly review UDAQ’s decision and
instead reviewed the Executive Director’s decision. Id. ¶ 2. We
recognized that passing over the Executive Director’s order to
review UDAQ’s decision would effectively permit petitioners to
circumvent the preservation requirement at the intermediate level.
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Id. ¶ 32 n.12. Because “Petitioners failed to preserve seven of their
arguments at the intermediate level,” we held they could not
“resurrect those claims now.” Id.¶23 We went out of our way in Utah Physicians to distinguish
that situation from the one presented in this case. We stated that
Bennion and its progeny were inapplicable there because while
Bennion presented a case “where the issue of expertise would pit
judge against judge, where both are in an equal position to make a
determination,” the Executive Director had statutorily recognized
technical expertise that we must consider. Id. We continue to believe
it is an important distinction, but not one that requires us to treat the
review of other administrative decisions differently from our review
of Department of Environmental Quality decisions. Now that we
have been squarely presented with the question of how Bennion
should be read, we see that the advantages of reviewing the district
court’s order for correctness outweigh the benefits of directly
reviewing the administrative body’s order without regard to what
happened in the intermediate court.
¶24 As we recognized in Utah Physicians, disregarding the
intermediate court decision undermines the integrity of our
appellate process. See id. (“[R]egardless of how much deference we
extend, any issue still must be preserved at both the fact-finding and
intermediate appellate levels.”). Moreover, reviewing the lower
court’s decision allows the appeal of administrative decisions to
enjoy the same procedural safeguards as other appeals. Before the
district court, the parties have an incentive to preserve, develop,
narrow, and refine the arguments they may eventually make to an
appellate court—an incentive that would not be as potent if the
parties could anticipate getting a second, and entirely fresh, appeal
of the administrative decision.
¶25 We face similar considerations when we exercise certiorari
review. In Bennion, we decided to review the underlying
administrative decision “since the lower court’s review of the
administrative record is not more advantaged than the appellate
court’s review.” 675 P.2d at 1139. Likewise, on certiorari review, we
review the same record from the district court as the court of
appeals. In certiorari cases, “we review the decision of the court of
appeals, not of the trial court.” Platts v. Parents Helping Parents, 947
P.2d 658, 661 (Utah 1997). We see no reason why the same
considerations should not apply to our review of an appeal of a
district court’s decision on an administrative order.
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¶26 Although this conflicts with what we did, but not
necessarily with what we said, in Bennion, we clarify that in the
appeal of an administrative order, we review the intermediate
court’s decision. We afford no deference to the intermediate court’s
decision and apply the statutorily defined standard to determine
whether the court correctly determined whether the administrative
decision was arbitrary, capricious, or illegal. 4 See UTAH CODE § 10-9a-
801(3) (2016). 5
ANALYSIS
¶27 Utah’s Municipal Land Use Development and Management
Act (MLUDMA) empowers municipalities to zone the territory
within their boundaries and to regulate land uses. UTAH CODE § 10-
9a-501 (2016). MLUDMA defines “conditional use” as a use that
“because of its unique characteristics or potential impact on the
municipality, surrounding neighbors, or adjacent land uses, may not
be compatible in some areas or may be compatible only if certain
conditions are required that mitigate or eliminate the detrimental
impacts.” Id. § 10-9a-103(5). The Act provides that conditional uses
“shall be approved if reasonable conditions are proposed, or can be
imposed, to mitigate the reasonably anticipated detrimental effects
of the proposed use in accordance with applicable standards.” Id.
§ 10-9a-507(2)(a) (emphasis added). Denial of a conditional use is
appropriate when “the reasonably anticipated detrimental effects of
a proposed conditional use cannot be substantially mitigated by the
proposal or the imposition of reasonable conditions to achieve
compliance with applicable standards.” Id. § 10-9a-507(2)(b). “The
court shall[] (i) presume that a decision, ordinance, or regulation . . .
is valid; and (ii) determine only whether or not the decision,
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4 Although we take this opportunity to clarify the standard, the
outcome of this case would be the same if we reviewed the Council’s
decision directly. In either scenario, we would conclude that the
Council did not produce findings sufficient to permit meaningful
review.
5 We cite to the version of the Code in effect at the time of the
district court’s decision. We note that the legislature amended The
Municipal Land Use Development and Management Act in 2017, but
neither party contends that any amendment should be material to
our decision.
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ordinance, or regulation is arbitrary, capricious, or illegal.” Id. § 10-
9a-801(3)(a). “A final decision of a land use authority or an appeal
authority is valid if the decision is supported by substantial evidence
in the record and is not arbitrary, capricious, or illegal.” Id. § 10-9a-
801(3)(c).
¶28 The McElhaneys’ property is located in an R-2 “single-
family and two-family residential” zoning district. MOAB, UTAH,
MUN. CODE § 17.45. The R-2 zoning ordinance designation is
“characterized by smaller lots and somewhat denser residential
environment than the R-1 residential zone” but includes “spacious
yards and other residential amenities adequate to maintain desirable
residential conditions.” Id. § 17.45.010. In an R-2 zoning area, a bed
and breakfast facility may be allowed as a conditional use. Id.
§ 17.09.530(B).
¶29 The Moab Municipal Code contains detailed conditions of
approval for conditional use permits. Id. § 17.09.530(H). It also sets
forth specific conditions for approval for proposed bed and
breakfasts. Id. § 17.09.531(9). The Commission is required to hold a
public hearing on any conditional use permit, and it must “convey
its recommendation and express its findings to [the] city council.” Id.
§ 17.09.530(F)(3). The Council is required to hold a public hearing
before taking any final action on the application. Id. § 17.09.530(G)(1).
The applicant bears the burden of demonstrating that the criteria
have been met, and “failure to meet one or more of the applicable
criteria may be cause for denial.” Id. § 17.09.530(H). Under the Moab
Municipal Code, the Council decides whether the applicant has met
the criteria. See id.
¶30 At the November 2014 Council meeting, the Council found,
by a 3-1 vote, that the McElhaneys had not met their burden. The
Council made no explicit findings that supported its assertions that
the proposed use did not meet the conditions of approval set forth in
the Moab Municipal Code. Instead, the councilmembers expressed
their concerns as they announced their votes. Councilmember
Peterson concluded that the use was inconsistent with the Moab
general plan by effectively forcing a commercial business in a
residential area. See id. § 17.09.530(H)(7). Councilmember Bailey
asserted that the proposed bed and breakfast would fail to meet the
“minimal impact” requirement for overnight rentals. See id.
§ 17.09.531(9)(A)(1). And Councilmember Ershadi expressed her
primary concern in maintaining the “character of the town” and
preserving “space” for locals. She concluded, “I think we need to
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take a really hard look at our zoning in general to make sure that
local spaces are protected as that.” No councilmember spoke
explicitly to what “reasonably anticipated detrimental effects”
motivated his or her vote. See UTAH CODE § 10-9a-507(2)(a). Nor did
any councilmember address whether the McElhaneys could
substantially mitigate the reasonably anticipated detrimental effects.
Indeed, no councilmember made any reference, when explaining the
vote, to the conditions the planning commission believed would
reasonably mitigate the adverse impacts.
¶31 MLUDMA instructs that a city council’s adjudicative land
use decision should be upheld if it is supported by substantial
evidence in the record and is not arbitrary, capricious, or illegal. Id.
§ 10-9a-801(3)(a)(ii); Id. § 10-9a-801(3)(c); Bradley v. Payson City Corp.,
2003 UT 16, ¶ 10, 70 P.3d 47 (“When a land use decision is made as
an exercise of administrative or quasi-judicial powers, . . . we have
held that such decisions are not arbitrary and capricious if they are
supported by ‘substantial evidence.’” (citation omitted)). The
problem with the decision before us is that in the absence of explicit
findings of fact and conclusions of law, the reasoning behind the
Council’s decision is an amorphous target. What adverse impacts
did the Council believe the proposed bed and breakfast would
impose on the neighborhood? Did the Council decide that the
McElhaneys could not mitigate the potential adverse impacts? In
other words, in the absence of a written and factually supported
decision, the McElhaneys, the district court, and now we, are left to
try to divine what specifically a party seeking to overturn the
Council’s ultimate determination would have to show was
unsupported by substantial evidence in the record.
¶32 And that raises the question, what does MLUDMA require
of a municipal body, like a city council, when it renders a land use
decision in an adjudicative capacity? MLUDMA does not explicitly
address this question, but it provides implicit guidance. MLUDMA
provides that “[t]he land use authority . . . 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.” UTAH CODE § 10-9a-801(7)(a). A land use authority
cannot fulfill the requirement of transmitting its orders and
supporting findings to the reviewing court unless such orders and
findings exist.
¶33 Moreover, when our legislature references a “substantial
evidence” standard, it employs a term of art that has a specialized
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meaning in administrative law. See id. § 10-9a-801(3)(c). “When the
legislature ‘borrows terms of art in which are accumulated the legal
tradition and meaning of centuries of practice, it presumably knows
and adopts the cluster of ideas that were attached to each borrowed
word in the body of learning from which it was taken.’” Maxfield v.
Herbert, 2012 UT 44, ¶ 31, 284 P.3d 647 (citation omitted).
¶34 The United States Supreme Court has recognized that in an
administrative context, “[t]he statutory phrase ‘substantial evidence’
is a ‘term of art,’” which includes within its meaning the requirement
“that localities must provide reasons” when they make adjudicative
determinations. T-Mobile S., LLC v. City of Roswell, 135 S.Ct. 808, 815
(2015) (citation omitted). In T-Mobile, a city council denied T-
Mobile’s application to build a cell phone tower on residential
property. Id. at 812–13. While the locality was not explicitly required
by statute to issue findings, the governing statute required that “any
decision to deny a request to build a tower ‘shall be in writing and
supported by substantial evidence contained in a written record.’”
Id. at 814 (citation omitted). The Court reasoned that when the
legislature used the term “substantial evidence,” it invoked appellate
courts’ “recognition that ‘the orderly functioning of the process of
[substantial-evidence] review requires that the grounds upon which
the administrative agency acted be clearly disclosed,’ and that
‘courts cannot exercise their duty of [substantial-evidence] review
unless they are advised of the considerations underlying the action
under review.’” Id. at 815 (alterations in original) (citation omitted).
It concluded “that localities must provide reasons when they deny
cell phone tower siting applications” that are “clear enough to enable
judicial review.” Id.¶35 And although neither we, nor the court of appeals, have
availed ourselves of prior opportunities to label substantial-evidence
review a term of art, our cases have similarly reasoned that an
administrative agency must “make findings of fact and conclusions
of law that are adequately detailed so as to permit meaningful
appellate review.” 6 LaSal Oil Co. v. Dep’t of Envtl. Quality, 843 P.2d
1045, 1047 (Utah Ct. App. 1992) (citation omitted); Adams v. Bd. of
Review of Indus. Comm’n, 821 P.2d 1, 4 (Utah Ct. App. 1991); Hidden
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In contrast to the Council’s failure to make findings of fact, the
6
Commission generated a five-page document outlining its findings
when it recommended approval.
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MCELHANEY v. CITY OF MOAB
Opinion of the Court
Valley Coal Co. v. Utah Bd. of Oil, Gas & Mining, 866 P.2d 564, 568
(Utah Ct. App. 1993) (“[T]he failure of an agency to make adequate
findings of fact in material issues renders its findings ‘arbitrary and
capricious’ unless the evidence is ‘clear and uncontroverted and
capable of only one conclusion.’”) (alteration in original) (citation
omitted). Administrative agencies must “make additional findings of
fact that resolve issues which are relevant to the legal standards that
will govern the [agency]’s decision.” Milne Truck Lines, Inc. v. Pub.
Serv. Comm’n, 720 P.2d 1373, 1380 (Utah 1986). 7
¶36 We have recognized that without sufficiently detailed
findings that “disclose the steps by which” an administrative agency
reaches its ultimate factual conclusions, “this Court cannot perform
its duty of reviewing the [] order in accordance with established
legal principles and of protecting the parties and the public from
arbitrary and capricious administrative action.” Id. at 1378. On
appeal, a court can perform its duty only if the council has created
“findings revealing the evidence upon which it relies, the law upon
which it relies, and its interpretation of the law.” Adams, 821 P.2d at
8.
¶37 The court of appeals has applied this logic to require land
use authorities to issue findings of fact when denying conditional
use permits. In Davis County v. Clearfield City, the court of appeals
agreed with the trial court’s conclusion that the Clearfield City
Council’s denial of a conditional use permit was arbitrary and
capricious in part because “the Planning Commission’s refusal to
furnish written findings, or at least provide the basis for its decision
. . . tended to suggest there was no rational basis for the Planning
Commission’s decision.” 756 P.2d 704, 711 (Utah Ct. App. 1988). The
court reasoned that “[e]ven if the reasons given . . . by the council
might otherwise be legally sufficient, the denial of a permit is
arbitrary when the reasons are without sufficient factual basis.” Id.(citation omitted). Similarly, in Ralph L. Wadsworth Construction, Inc.
v. West Jordan City, the court of appeals ruled that the city council
failed to support the denial of a conditional use permit with
substantial evidence. 2000 UT App 49, ¶ 16, 999 P.2d 1240. The court
_____________________________________________________________
7To be sure, this reasoning controls when a municipality acts in
an adjudicative capacity. When a municipality legislates, it has no
such obligation.
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found that while the city council stated that the proposed use might
be considered by neighbors to be a nuisance, “the City Council did
not find that appellants’ storage would actually constitute a nuisance.” Id.
¶ 18. Furthermore, the court stated that the city council claimed that
the use would be “injurious to the goals of the city” but that the city
council had not investigated this claim (which was raised by
neighboring property owners), nor had it stated why the use would
be injurious. Id. ¶ 17.
¶38 Other courts have required land use authorities to issue
specific findings. The Supreme Court of Iowa concluded a land use
authority needed to make written findings even though “[t]here is
no statutory requirement that the board do so.” Citizens Against Lewis
& Clark (Mowery) Landfill v. Pottawattamie Cty. Bd. of Adjustment, 277
N.W.2d 921, 925 (Iowa 1979). It reasoned that
[t]he practical reasons for requiring administrative
findings are so powerful that the requirement has been
imposed with remarkable uniformity by virtually all
federal and state courts, irrespective of a statutory
requirement. The reasons have to do with facilitating
judicial review, avoiding judicial usurpation of
administrative functions, assuring more careful
administrative consideration, helping parties plan their
cases for rehearings and judicial review, and keeping
agencies within their jurisdiction.
Id. (citation omitted). And a leading treatise has recognized that
“[t]he failure to make findings may result in the zoning authority’s
decision not being upheld, or a remand of the case for preparation of
written findings of fact.” 8A MCQUILLIN MUN. CORP. § 25:369 (3d ed.
2017) (footnotes omitted).
¶39 Here, the Council concluded that the proposed bed and
breakfast use did not meet the criteria set forth in Moab’s Municipal
Code but prepared no written findings of fact. Various
councilmembers rejected the McElhaneys’ application on the basis
that (1) the proposed use was inconsistent with Moab’s general plan
and (2) the impact generated by the McElhaneys’ proposed use
would exceed the “clearly minimal” requirement in the Moab
Municipal Code. Under the Moab Municipal Code, these are relevant
considerations in assessing the approval of conditional use permits.
However, the Council failed to support its conclusions with facts
from the record. Further explanation from the Council is needed
because without more, it is difficult to see how placing a bed and
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MCELHANEY v. CITY OF MOAB
Opinion of the Court
breakfast in an area zoned R-2—which specifically permits bed and
breakfasts—is inconsistent with Moab’s general plan. Similarly, a
reviewing court needs to know which impacts the Council believed
would be more than “clearly minimal.” Furthermore, and perhaps
more importantly, since we have no visibility into the Council’s
thinking on the topic, the Council made no finding at all on whether
the McElhaneys’ proposals sufficiently “mitigat[ed] the reasonably
anticipated detrimental effects of the proposed use.” UTAH CODE
§ 10-9a-507(2)(a).
¶40 The district court noted, and indeed, complained about the
absence of findings. In response, Moab, without conceding a
problem with its findings, asked the district court to remand to allow
the Council to generate explicit findings. The district court did not.
Instead, the district court valiantly attempted to fill the void by
parsing the comments neighbors made at Council meetings. The
district court also examined Google Maps and drew conclusions
about the traffic that the bed and breakfast might bring. We
commend the district court for its willingness to take on this project,
but it was error because the analysis allowed the district court to
base its conclusion on what it believed the Council’s decision relied
upon—increased traffic in the neighborhood. The district court
framed the issue this way even though no councilmember explicitly
cited traffic as the reason for the decision. The district court may
have correctly read the tea leaves; traffic was a concern that many
neighbors raised. But it was the Council’s responsibility to define the
basis for its decision, not the district court’s.
¶41 Simply stated, if a city council is going to sit as an
adjudicative body, it needs to produce findings of fact capable of
review on appeal. By mandating that a reviewing court must uphold
a city council’s decision as long as it is supported by substantial
evidence, the legislature has utilized a term of art that presupposes
written findings. And as we have noted in the review of other
agency decisions, adequately detailed “findings of fact and
conclusions of law . . . permit meaningful appellate review.” LaSal
Oil Co., 843 P.2d at 1047 (citation omitted). The Council must make
additional findings of fact that are relevant to the legal standards
that will govern its decision before a court can offer meaningful
appellate review.
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CONCLUSION
¶42 On an appeal of a district court’s review of an
administrative decision, we review the district court’s decision. The
district court correctly concluded that the Council failed to issue
findings sufficient to support its denial of the McElhaneys’
application for conditional use permit. But the district court erred in
overturning the Council’s decision without remanding to permit the
Council to craft findings of fact and conclusions of law capable of
appellate review. We vacate the district court’s order and remand for
further proceedings consistent with this opinion.
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