Hodgson v. Farmington City , 766 Utah Adv. Rep. 16 ( 2014 )

2014 UT App 188_________________________________________________________
THE UTAH COURT OF APPEALS
KIA LYN FADEL HODGSON , KRISTIN LOUISE FADEL , DOUGLAS
KELLY FADEL , AND KARA FADEL BURNETT,
Petitioners and Appellants,
v.
FARMINGTON CITY, ERIC MILLER, AND FARMINGTON CITY BOARD
OF APPEALS,
Respondents and Appellees.
Memorandum Decision
No. 20130702-CA
Filed August 7, 2014
Second District Court, Farmington Department
The Honorable Thomas L. Kay
No. 120701027
George K. Fadel, Attorney for Appellants
Jody K. Burnett, Robert C. Keller, and Timothy J.
Bywater, Attorneys for Appellees
SENIOR JUDGE RUSSELL W. BENCH authored this Memorandum
Decision, in which JUDGE MICHELE M. CHRISTIANSEN and SENIOR
JUDGE JUDITH M. BILLINGS concurred.1
BENCH, Judge:
¶1 Kia Lyn Fadel Hodgson, Kristin Louise Fadel, Douglas
Kelly Fadel, and Kara Fadel Burnett (the Fadels) appeal
the district court’s grant of judgment in favor of Farmington
1. The Honorable Russell W. Bench and Judith M. Billings, Senior
Judges, sat by special assignment as authorized by law. See
generally Utah Code Jud. Admin. R. 11-201(6).
Hodgson v. Farmington City
City, Eric Miller, and the Farmington City Board of Appeals
(the Board) on the Fadels’ petition for review of the
Board’s determination that the Fadels’ barn (the Barn)
violated the Uniform Code for the Abatement of
Dangerous Buildings (the UCADB). See Uniform Code for
the Abatement of Dangerous Buildings (1997), available at
https://law.resource.org/pub/us/code/ibr/icc.ucadb.1997.pdf.2 We
affirm.
¶2 On June 27, 2012, after determining that the Barn, which was
used as a sign, violated a number of UCADB provisions, Miller, a
building official for Farmington City, issued a Notice and Order to
Repair or Demolish Building (the Notice) to the Fadels. The Notice
required that the Fadels either repair the Barn or demolish it. The
Fadels filed an appeal with the Board, which affirmed Miller’s
decision. The Fadels then petitioned the Second District Court for
judicial review of the Board’s decision. In June 2013, the district
court granted judgment in favor of Farmington City, Miller, and
the Board and dismissed the Fadels’ petition. The Fadels appeal.
I. Standard of Review
¶3 Before examining the Fadels’ substantive arguments, we
must resolve the parties’ dispute regarding the appropriate
standard of review to apply in this case. The district court relied on
section 10-9a-801 of the Utah Code, which pertains specifically to
land use decisions and limits the district court’s review to a
determination of “whether or not the decision, ordinance, or
regulation is arbitrary, capricious, or illegal.” Utah Code Ann. § 10-
9a-801(3)(a)(ii) (LexisNexis 2012). We are subject to the same
2. The Uniform Code for the Abatement of Dangerous Buildings
has been adopted and incorporated by reference into
the Farmington City Municipal Code. See Farmington City,
Utah, Municipal Code § 10-2-100 (2013), available at
www.farmington.utah.gov/downloads/government/title10.pdf.
20130702-CA 2 2014 UT App 188Hodgson v. Farmington City
standard of review as the district court because “[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.”
Carrier v. Salt Lake Cnty., 2004 UT 98, ¶ 17, 104 P.3d 1208 (citation
and internal quotation marks omitted).
¶4 The Fadels assert that because the Barn is a sign, the Board’s
decision to order it repaired or demolished is not a “land use
decision” within the meaning of section 10-9a-801. They refer us
instead to section 10-3-703.7 of the Utah Code, which pertains to
review of municipal administrative proceedings generally. The
previous version of section 10-3-703.7 permitted individuals
“adversely affected by an administrative proceeding” conducted
by a municipal authority to petition a district court for review of
the decision and, like section 10-9a-801, provided that such a
review would be limited to determining whether the
administrative decision was “arbitrary, capricious, or illegal.” Utah
Code Ann. § 10-3-703.7(5)(a)(i)–(ii) (LexisNexis 2007). However, in
2012, the statute was repealed and reenacted, and the legislature
removed all provisions pertaining to judicial review of
administrative decisions, leaving only the following language: “(1)
A municipality may adopt an ordinance establishing an
administrative proceeding to review and decide a violation of a
civil municipal ordinance. (2) An ordinance adopted in accordance
with Subsection (1) shall provide due process for parties
participating in the administrative proceeding.” Id. § 10-3-703.7
(2012).
¶5 The Fadels assert that the revisions to section 10-3-703.7
removing the “arbitrary, capricious, or illegal” language indicates
that the legislature did not believe that standard of review
complied with due process. However, the decision to amend this
statute does not appear to have had anything to do with the
petition for judicial review and standard of review provisions
contained in the previous version of section 10-3-703.7(5), but
rather arose out of concern over possible misinterpretation of
20130702-CA 3 2014 UT App 188Hodgson v. Farmington City
subsection (2)(e), relating to civil violations committed in
conjunction with criminal violations. See Audio Recording of
Senate Business and Labor Standing Committee Meeting, 59th Leg.,
Gen. Sess. (Feb. 29, 2012) (statement by bill sponsor Rep. Kraig
Powell); see also Utah Code Ann. § 10-3-703.7(2)(e) (2007).
Furthermore, the “due process” referred to in the current version
of section 10-3-703.7 relates to the administrative procedures
established by a municipality, not judicial review of agency
decisions. And the fact that the “arbitrary, capricious, or illegal”
standard remains in other provisions of the Utah Municipal Code
indicates that the legislature approves of this standard of review
and belies the Fadels’ argument that it does not afford them due
process. See, e.g., Utah Code Ann. § 10-2-417(3) (LexisNexis 2012);
id. § 10-8-2(3)(b) (Supp. 2013); id. § 10-9a-801(3)(a)(ii) (2012).
¶6 While the legislature’s removal of the standard of review
language from section 10-3-703.7 admittedly leaves us with some
uncertainty regarding the general standard of review it intended
for us to apply in appeals from municipal administrative
determinations, we are not convinced that the legislature
necessarily intended that we no longer employ the “arbitrary,
capricious, or illegal” standard. The current version of section 10-3-
703.7 says nothing about the standard of review and has not
provided us with an alternative standard to replace the one
contained in the previous version. Furthermore, as noted above,
the legislature left this standard of review in other provisions of the
Utah Municipal Code. Moreover, the Fadels have failed to identify
any reasonable alternative standard of review that we should
employ apart from stating generally that they should be afforded
“due process.” Thus, even if we were to accept the Fadels’ assertion
that the Board’s decision was not a land use decision subject to the
standard of review explicitly prescribed by section 10-9a-801, we
are not convinced that the “arbitrary, capricious, or illegal”
standard of review is inappropriate in the context of this case.
¶7 Accordingly, like the district court, we review the Board’s
decision only to determine whether it was arbitrary, capricious, or
20130702-CA 4 2014 UT App 188Hodgson v. Farmington City
illegal. A decision “is arbitrary or capricious only if it is not
supported by substantial evidence in the record” and “is illegal if
it violates a law, statute, or ordinance in effect at the time the
decision was made.” Fox v. Park City, 2008 UT 85, ¶ 11, 200 P.3d 182(citations and internal quotation marks omitted).
II. Applicability of the UCADB
¶8 The Fadels’ first substantive argument asserts that the Barn
is a sign, not a “building or structure,” and that it is therefore not
subject to the UCADB. See generally Uniform Code for the
Abatement of Dangerous Buildings § 302 (1997) (providing that
“any building or structure” which exhibits “any or all of the
conditions or defects” described by the UCADB “shall be deemed
to be a dangerous building”). The Barn has stood on the Fadels’
property since 1959 and was erected “as a dual purpose building
to serve as a barn and as a base for signs.” In 1967, such signs were
prohibited by the Utah Outdoor Advertising Act, but the Act
contained a grandfather clause exempting nonconforming uses
existing at the time the Act was passed. See Rock Manor Trust v.
State Road Comm’n, 550 P.2d 205, 205 (Utah 1976). In 1972, most of
the Barn was destroyed by a fire.3 Id. Although the Fadels were
permitted to rebuild the Barn, they were denied a permit to replace
the sign in light of the Outdoor Advertising Act. Id. The Fadels filed
suit, and the Utah Supreme Court, in Rock Manor Trust v. State Road
Commission, 550 P.2d 205 (Utah 1976), upheld their right to continue
their nonconforming use of the Barn after it was rebuilt. Id. at 206.
¶9 The Fadels assert that the supreme court conclusively
determined that the Barn is a sign and that its holding makes the
issue of whether the Barn is a sign or a structure res judicata. See
generally D’Aston v. Aston, 844 P.2d 345, 350 (Utah Ct. App. 1992)
(“When there has been an adjudication, it becomes res judicata as
3. According to the Fadels, since the fire, the Barn has been used
only as a sign, not a barn.
20130702-CA 5 2014 UT App 188Hodgson v. Farmington City
to those issues which were either tried and determined, or upon all
issues which the party had a fair opportunity to present and have
determined in the other proceeding.” (citation and internal
quotation marks omitted)). However, the supreme court made no
such determination. The court determined only that the Fadels’
nonconforming use of the Barn as a sign was not extinguished by
the fire and continued to be permitted pursuant to the Outdoor
Advertising Act’s grandfather clause. The determination that the
Barn could be used as a sign does not necessarily preclude the Barn
from also being classified as a structure subject to the requirements
of the UCADB, and the Fadels present no argument explaining
why the Barn could not be classified as both a structure and a sign.
Indeed, such a loophole would contradict the purpose of the
UCADB to protect occupants and the general public from the threat
dangerous structures may pose to their “life, limb, health, morals,
property, safety or welfare.” See Uniform Code for the Abatement
of Dangerous Buildings § 102.1. The Board did not find that the
Barn was not a sign or that it could not continue as a
nonconforming use; it found only that the Barn was “a structure
within the meaning of the [UCADB] to which the provisions of the
[UCADB] apply.” Thus, we reject the Fadels’ assertion that the
Barn was not subject to the UCADB.4
III. Sufficiency of the Notice
¶10 The Fadels next argue that the Notice provided by Miller
was insufficient because it gave them only two options: repair the
Barn or demolish it. Pursuant to section 403 of the UCADB, there
are three possible options that a building official may give the
owner of a structure that is declared to be dangerous: (1) repair the
building in accordance with the building codes, (2) demolish the
building “at the option of the building owner,” and (3) vacate and
4. Apart from their res judicata argument, the Fadels provide no
reasoning for their bare assertion that the Board “[wrongfully]
applied the [UCADB] to the uninhabited sign structure.”
20130702-CA 6 2014 UT App 188Hodgson v. Farmington City
secure the building against entry “[i]f the building does not constitute
an immediate danger to the life, limb, property, or safety of the public.” Id.§ 403 (emphasis added). The Fadels argue that the Notice should
have given them the option to vacate and secure the Barn against
entry rather than repair or demolish it. However, this option is
available only where “the building does not constitute an
immediate danger,” see id., and the Notice explained that the
defects Miller had identified were such “that life, health, property
or safety of the public [were] endangered.” Further, despite
mandating that the Barn “be secured and maintained against entry
immediately,” the Notice went on to indicate that repair or
demolition was ultimately necessary. Thus, Miller clearly did not
consider vacating and securing the building to be an adequate
remedy in light of the danger posed. The Fadels point out that they
have vacated and secured the Barn and assert that this should be
sufficient to comply with the UCADB. However, the relevant
question is not whether the Fadels have taken steps to vacate and
secure the Barn, but whether the condition of the Barn makes it so
dangerous that vacating and securing it is an inadequate remedy.
The Fadels have failed to explain how the potential remedy of
vacating and securing the Barn was even a viable option under the
circumstances, let alone a necessary one. Thus, we see no fault in
the Notice.
IV. Adequacy of the Board’s Factual Findings
¶11 The Fadels next challenge the adequacy of the Board’s
factual findings. The Board found that regardless of whether the
Barn also constituted a sign, it was “a structure within the meaning
of the [UCADB] to which the provisions of the [UCADB] apply.”
It further found that Miller’s determination “that the structure
meets 13 of the 18 conditions or defects” identified by section 302
of the UCADB as dangerous conditions requiring remediation,
specifically “numbers 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 16, 17, and 18,”
see id. § 302, was “supported by substantial evidence in the record,
including both the Notice and Order and the evidence presented in
the form of the testimony of Building Official Eric Miller, structural
20130702-CA 7 2014 UT App 188Hodgson v. Farmington City
engineer Chris Kimball and Fire Chief Guido Smith during the
hearing regarding this matter on September 19, 2012.”
¶12 The Fadels assert that these findings were inadequate. The
Board found that the Barn exhibited all thirteen of the defects
found by Miller and identified the testimony it had relied on in
making its findings. The fact that the Board referred to the defects
by number, rather than recounting each of them in detail, does not
render its findings inadequate. Indeed, the Board’s identification of
the defects it found and the sources on which it relied for its
findings sufficiently “dislose[d] the steps by which the ultimate
conclusion on each factual issue was reached.” See Nyrehn v.
Industrial Comm’n, 800 P.2d 330, 335 (Utah Ct. App. 1990) (citation
and internal quotation marks omitted).
V. Substantial Evidence
¶13 Because we determine that the Board’s factual findings were
adequate, it was the Fadels’ burden to “marshal all of the evidence
supporting the [Board’s] findings and show that despite the
supporting facts and in light of the conflicting evidence, the
findings are not supported by substantial evidence.” Beaver Cnty.
v. Utah State Tax Comm’n, 916 P.2d 344, 355–56 (Utah 1996)
(citations and internal quotation marks omitted). See generally id. at
356 (defining substantial evidence as “that quantum and quality of
relevant evidence that is adequate to convince a reasonable mind
to support a conclusion” (citation and internal quotation marks
omitted)). The Fadels have failed to do so. Rather than marshal the
evidence supporting the Board’s conclusion, they point us to
evidence undermining its conclusion in order to show that the
evidence was not “clear, uncontroverted and capable of one
conclusion.” See generally Nyrehn, 800 P.2d at 335 (explaining that
an agency decision unsupported by adequate factual findings will
be deemed arbitrary and capricious “unless the evidence is clear,
uncontroverted and capable of only one conclusion” (citation and
internal quotation marks omitted)). But because we determine that
the Board’s findings were adequate, the Fadels’ approach is
20130702-CA 8 2014 UT App 188Hodgson v. Farmington City
misguided. By failing to marshal the evidence in this case, the
Fadels’ have “fail[ed] to carry [their] burden of persuasion on
appeal.” State v. Nielsen, 2014 UT 10, ¶ 42, 326 P.3d 645. “In order
to determine whether [the] factual findings were [unsupported by
substantial evidence] we would have to comb the . . . record,
assemble all the relevant evidence, identify how the [Board] used
this evidence to support the finding in question and determine
whether [its] decision was [arbitrary and capricious].” See Chen v.
Stewart, 2004 UT 82, ¶ 82 n.16, 100 P.3d 1177, abrogated on other
grounds by Nielsen, 2014 UT 10. This we decline to do. Thus, because
the Fadels fail to carry their burden of persuasion, “we assume that
the evidence supports the [Board’s] findings.”5 Id. ¶ 80.
VI. Form of Decision
¶14 Finally, the Fadels argue that the Board’s decision did not
comply with section 605.7 of the UCADB, which requires that a
decision by an appeals board “be in writing and . . . contain
findings of fact, a determination of the issues presented, and the
requirements to be complied with.” Uniform Code for the
Abatement of Dangerous Buildings § 605.7 (1997). The Fadels assert
that the Board’s decision contained neither findings of fact nor the
requirements to be complied with. We have already determined
that the Board’s decision contained adequate findings of fact;
5. The Fadels make more detailed arguments with respect to the
nuisance conditions identified under numbers 12, 17, and 18 of
section 302 of the UCADB and the instability conditions identified
under numbers 5, 9, 12, and 13. However, in doing so, they merely
attempt to reargue the evidence, pointing only to evidence that
supports their position, and have again failed to marshal the
evidence supporting the Board’s findings. And even if we were to
determine that the Board’s findings with respect to these conditions
were not supported by substantial evidence, the Board’s decision
would still be supported by its findings that other unsafe
conditions existed relating to numbers 4, 6, 7, 8, 10, 11, and 16.
20130702-CA 9 2014 UT App 188Hodgson v. Farmington City
however, the Fadels appear to be correct that the Board did not
explicitly indicate the requirements to be complied with.
Nevertheless, by affirming Miller’s decision, the Board implicitly
indicated its intent that the Fadels comply with the remedies
outlined in the Notice, i.e., repair or demolition, and we decline to
set aside the Board’s decision merely because these requirements
were not explicitly repeated in that decision. See generally MacKay
v. Hardy, 896 P.2d 626, 629 (Utah 1995) (“[I]t is the duty of the court
to look to substance rather than to form.” (citation and internal
quotation marks omitted)).
VII. Conclusion
¶15 We determine that the question of whether the Barn could
be considered a structure subject to the UCADB was not made res
judicata by the supreme court’s decision in Rock Manor. We also
determine that the Notice provided to the Fadels was not improper
and that the Board’s findings of fact were adequate. Because the
Fadels failed to carry their burden of persuasion by marshaling the
evidence supporting the Board’s findings, we reject their assertion
that those findings were not supported by substantial evidence.
Finally, we determine that because the Notice informed the Fadels
of the requirements to be complied with, the Board’s affirmation of
the Notice was sufficient to comply with section 605.7 of the
UCADB. We therefore agree with the district court that the Board’s
decision was not arbitrary, capricious, or illegal, and we
accordingly affirm the district court’s ruling.
20130702-CA 10 2014 UT App 188