Salt Lake City v. Kunz , 2020 UT App 139 ( 2020 )

2020 UT App 139THE UTAH COURT OF APPEALS
SALT LAKE CITY CORPORATION, SALT LAKE CITY DEPARTMENT OF
AIRPORTS, AND TOOELE VALLEY AIRPORT,
Appellants and Cross-appellees,
v.
DICK D. KUNZ, DICK DARWIN KUNZ, BARBARA JEAN KUNZ, AND
NEIL NORRIS KUNZ,
Appellees and Cross-appellants.
Opinion
No. 20190010-CA
Filed October 16, 2020
Third District Court, Tooele Department
The Honorable Matthew Bates
No. 070301010
Jody K. Burnett and Robert C. Keller, Attorneys for
Appellants and Cross-appellees
Robert E. Mansfield and Megan E. Garrett, Attorneys
for Appellees and Cross-appellants
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN M. HARRIS
concurred.
MORTENSEN, Judge:
¶1 This case offers a feast of legal issues—ranging from
procedural to constitutional—but its main course is a cautionary
tale to government entities: they must follow the exact statutory
requirements for bringing a condemnation action under Utah
Code section 78B-6-504(2)(c). Salt Lake City (the City) attempted
to exercise its eminent domain power to obtain the air rights of
Salt Lake City v. Kunz
Appellees (Owners), in the form of an avigation easement, 1
connected with a runway on the south side of one of its airports,
namely, the Tooele Valley Airport (TVA). After years of
litigation, the district court dismissed the City’s condemnation
action because the City indisputably had failed to strictly comply
with the requirements of Utah Code section 78B-6-504(2)(c). The
City contends that the court erred in dismissing the action
because (1) Owners made a binding admission that the City had
complied with the statutory notice provision, (2) substantial
compliance with the statutory requirements should have rescued
the City from dismissal, and (3) the court should have allowed
the City to amend its complaint. Owners dispute the merits of
these contentions. They also raise their own contentions on
cross-appeal, arguing that (1) the City has no power to condemn
property situated outside its boundaries, (2) the City failed to
negotiate as required by statute, (3) the district court erred in
granting judgment as a matter of law to the City on valuation of
the air rights, and (4) the district court erred in denying Owners
an award of attorney fees and litigation costs.
¶2 In short, we affirm the district court’s dismissal of this
case based on the City’s violation of the requirements of Utah
Code section 78B-6-504(2)(c)—requirements we conclude
demand strict compliance and for which prejudice need not be
demonstrated. Because we do so, we decline to address Owners’
contentions regarding negotiation and valuation as they may or
may not be presented in any new proceeding. We do explain,
however, why Owners’ response to a statement of fact in an
earlier partial summary judgment motion did not constitute an
admission that was binding beyond the context of the then-
1. “An avigation easement [is] an easement permitting
unimpeded aircraft flights over the servient estate.” County of
Lenawee v. Wagley, Nos. 302533, 302534, 302535, 302537, 302538,
2011 WL 6379321, at *1 n.1 (Mich. Ct. App. Dec. 20, 2011) (per
curiam) (cleaned up); accord Avigation Easement, Black’s Law
Dictionary (11th ed. 2019).
20190010-CA 2 2020 UT App 139Salt Lake City v. Kunz
pending motion, why the City was required to strictly follow the
terms of the statute, and why the court did not abuse its
discretion when it denied the City’s request to amend its
complaint. We also address why Owners are not entitled to an
award of attorney fees and costs, and we answer an associated
question of whether the City had extraterritorial eminent
domain power in this case.
BACKGROUND
The Three City Council Meetings
¶3 The City acquired TVA—an airport located in Tooele
County—in 1991. Owners 2 own the land directly south of TVA.
In 2004, the City put together a plan to allow for an aircraft
approach from the south using runway 35. As a condition of
federal funding on this project, the City was required to assure
the protection of open airspace on a defined slope extending
downward to the runway, compatible with normal airport
operations, including aircraft landing and takeoff. The necessary
open airspace extended over property to the south of the
runway. The City identified Owners as the property holders of
that land.
¶4 Thereafter, the City entered into negotiations with
Owners and prepared appraisals of the air rights in an effort to
acquire an avigation easement from them. But Owners did not
accept the City’s offer. So, the City submitted a proposed
condemnation resolution to the city council for a vote on March
6, 2007. Before the meeting, the City provided written notice to
Owners on February 16, 2007. Owners attended the meeting and
spoke in opposition to the condemnation, though their time was
2. We recognize that Owners did not do everything in this case
together; however, we refer to Owners’ actions collectively for
convenience.
20190010-CA 3 2020 UT App 139Salt Lake City v. Kunz
limited to three minutes. The city council delayed a vote on the
resolution until March 13, 2007. Those in attendance were orally
notified that the motion would be deferred to the March 13, 2007
meeting. Owners did not, however, receive written notice
related to this second meeting.
¶5 Owners attended this subsequent meeting and again
spoke in opposition to condemnation. Again, they were only
allowed two to three minutes each to speak to the city council.
And again, the vote was postponed. The City then negotiated
with Owners to acquire the property in fee simple absolute,
rather than an easement. Because the parties were unable to
come to an agreement, a third city council meeting was held on
May 22, 2007. The City sent written notice of this third meeting
to Owners three business days before the meeting was held.
Owners attended the meeting, but they were not allowed to
speak, despite specifically requesting that opportunity. The city
council thereafter voted in favor of adopting the resolution
authorizing formal condemnation proceedings. After the
meeting, the City again attempted to purchase Owners’
property, but Owners still refused to sell. Therefore, the City
initiated this action to obtain the avigation easement by
condemnation.
The Early Stages of the Condemnation Litigation
¶6 The parties proceeded to litigate. Early on, Owners
moved for judgment on the pleadings, arguing that the City did
not have authority to condemn the air rights because the
property was located outside the City’s geographical
boundaries. The City opposed the motion and filed its own
motion for partial summary judgment on this issue. In its
motion, the City stated the reason for the motion: “This
motion is based on the grounds that the City owns and operates
[TVA] . . . [and] has been granted the authority to condemn the
air rights in question pursuant to several statutes including
without limitation Utah Code Ann. §§ 72-10-413, 72-10-203
through 205, 10-8-2, and related statutes.” The City further
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asserted, “The authority to condemn is expressly granted. But if
condemnation is pursued, the condemnation process must
comply with appropriate procedures, statutory requirements
and payment of just compensation.” The City also maintained
that the airspace condemnation was part of a broader expansion
and improvement of both TVA and the Salt Lake International
Airport, and that the new runway at TVA would make TVA
“more safe, functional and efficient so that it could relieve
certain demands on the SLC [Airport].” In its motion, the City
set forth several statements of fact, supported by an affidavit,
that outlined the City’s ownership interest of TVA, the plan and
potential federal funding to improve TVA, and the history of
negotiations with Owners, and stated, in relevant part:
7. After timely and proper notice and the
satisfaction of all statutory requirements and
conditions, the Salt Lake City Council, at a public
meeting duly and regularly held, considered the
condemnation of the Air Space Easement and
passed and adopted Resolution No. 37 of 2007,
authorizing the City to initiate condemnation
proceedings . . . .
....
10. The subject condemnation, and the Airport
Project of which it is a part, provides direct benefits
to . . . the City and its residents by improving
safety and reducing congestion at the [Salt Lake
City International Airport].
Owners responded and stated that all statements of fact, other
than statement ten, were “undisputed for purposes of the current
motions before this Court.” (Emphasis added.)
¶7 In May 2009, after briefing and oral argument, the district
court denied Owners’ motion for judgment on the pleadings and
granted the City’s partial summary judgment motion. The court
identified the sole issue in dispute as whether the City had
20190010-CA 5 2020 UT App 139Salt Lake City v. Kunz
extraterritorial jurisdiction to condemn Owners’ airspace. The
court specifically explained that Owners did “not address the
express authorization or distinguish the language allowing for
municipal condemnation in” various sections of the Utah Code.
The court ultimately concluded that various statutory provisions
supplied the extraterritorial authority for the City to condemn
Owners’ air rights. Because Owners did not contest the matter
for purposes of the motion, the court did not expressly rule
whether conditions precedent to taking the property—notice and
an opportunity to be heard—had been satisfied.
¶8 Years of litigation followed. In 2010, the court granted the
City’s motion for an order of immediate occupancy, allowing the
City to occupy Owners’ airspace, and ordered the City to submit
an advance occupancy deposit. Owners never requested to
withdraw the funds. That same year, the City amended its
complaint. Owners in turn filed an amended answer and therein
asserted an affirmative defense that the City’s “claims [were]
barred in that it failed to give the requisite notices required by
Utah Code Ann. § 78B-6-501, et seq.” Several years later, the City
propounded a discovery request that Owners produce all
documents “that relate in any way to the claims and affirmative
defenses at issue in this proceeding.” Along the way, the case
was reassigned in the normal course to a different district judge.
The Dismissal of the City’s Condemnation Complaint
¶9 In 2018, “on the eve of trial,” the district court granted the
City’s motion in limine to exclude Owners’ only designated
appraisal expert. The City then moved for judgment as a matter
of law on the issue of valuation due to the lack of competing
evidence. This prompted Owners to oppose the City’s motion
with their own motion for judgment as a matter of law, arguing
that one of their affirmative defenses had “not been resolved in
these proceedings”—whether the City had failed to comply with
statutory prerequisites to initiate a condemnation action under
20190010-CA 6 2020 UT App 139Salt Lake City v. Kunz
section 78B-6-504 of the Utah Code. 3 See Utah Code Ann. § 78B-
6-504(2)(c)–(d) (LexisNexis Supp. 2018). In response, the City
described the procedural history of this case and claimed that,
based on Owners’ response to the City’s 2009 partial summary
judgment motion, the City’s compliance with the statutory
procedures had already been established. At a hearing on the
dueling motions, the court granted the City’s motion on the issue
of valuation, and it also explained that whether the City had
authority to seek the easement had been decided in the City’s
favor, but “whether there was proper notice and disclosure as
required by the statute ha[d] not yet been decided.” The court
further explained that it came to this conclusion based on the
language of the court’s partial summary judgment order and the
history of this case:
What is unique about this case . . . is that when the
[Owners] filed an opposition to the motion for
partial summary judgment, they made clear in that
motion that they were only conceding those facts
for purposes of the motion. . . . [A] party reading
that order without considering the full history of
the briefing might walk away with the impression
that the Court had ruled as a matter of law that . . .
all the prerequisites to condemnation were at this
point undisputed and fully satisfied . . . [, but] the
issues the Court has described are still open . . . .
¶10 The parties then filed competing motions for summary
judgment on the issue of whether the City had complied with
section 78B-6-504. The City argued that it had complied with the
statute, and in the alternative, that Owners could not
3. At the time, Utah Code section 78B-6-504 was numbered as 78-
34-4. But we cite the current version of this section and all others,
unless otherwise noted, in this opinion because they have not
changed substantively.
20190010-CA 7 2020 UT App 139Salt Lake City v. Kunz
demonstrate prejudice, and as a further alternative, that the City
substantially complied with the statute. For their part, Owners
argued that the City “provided belated notice for the hearing at
which the vote . . . was taken and refused to allow [Owners] the
opportunity to speak at that hearing” in violation of the statute.
¶11 After briefing and oral argument, the court granted
Owners’ motion on the issue. In doing so, the court described the
three city council meetings and explained that “as to whether
there was adequate notice and an opportunity to be heard, . . .
the City has not met this particular condition precedent to filing
a condemnation action.” Specifically, the court noted, “The
notice that was given to the [Owners] for that [third] meeting
was late and they were not given an opportunity to speak.” The
court also concluded that, in this eminent domain context, a
party is not required to show prejudice.
¶12 Owners then sought, among other things, a dismissal of
the City’s complaint and an award of litigation fees and costs
under federal law and the Utah Constitution. See Utah Const. art.
I, § 22; 42 U.S.C. § 4654. The City opposed the motion. On the
issue of dismissal, the City requested leave to amend its
complaint. The City argued that the “procedural deficiency” was
subject to “a procedural solution.” The City claimed it intended
to initiate a new process that would comply with the statute. But
the City did not attach a proposed amended complaint to its
motion. In response, Owners argued that the City’s intentions
“are insufficient to avoid the fact that [its] prior, separate attempt
at eminent domain failed,” further asserting that any new
attempt should require new proceedings.
¶13 The court then ruled on the remaining issues. It granted
Owners’ motion to dismiss, denied Owners’ motion for litigation
fees and costs, and denied the City’s request to amend its
complaint. Related to dismissal, the court concluded that the
“statutory scheme needs to be strictly followed” and reiterated
its earlier ruling, explaining that “failure to provide an adequate
notice to be heard . . . is a fatal error . . . that warrants dismissal
20190010-CA 8 2020 UT App 139Salt Lake City v. Kunz
of the case.” As to the litigation expenses, the court denied
Owners’ request under federal law. The court concluded that the
requirement—a final judgment that the agency cannot acquire
the real property by condemnation—was not established. The
court elaborated on the difference between its ruling—that the
City’s action was barred on procedural grounds—and one in
which condemnation was rejected on the merits, stating, “[W]e
fully expect that at some point, the City will bring a
condemnation claim and—and will likely be successful . . . on
that, if they jump through the hoops all correctly. . . . [T]here has
not been a final judgment that condemnation cannot be had.”
The court similarly denied Owners’ request for litigation fees
and costs under the Utah Constitution, citing Board of County
Commissioners v. Ferrebee, 844 P.2d 308 (Utah 1992), and
explaining that just compensation does not include litigation
expenses.
¶14 With the case now dismissed, the City appeals and
Owners cross-appeal.
ISSUES AND STANDARDS OF REVIEW
¶15 The parties raise various issues for our consideration. 4
The City appeals, contending first that the district court erred in
dismissing the case under section 78B-6-504(2)(c) of the Utah
Code. “We review questions of statutory interpretation for
correctness.” Utah Dep’t of Transp. v. FPA West Point, LLC, 2012
UT 79, ¶ 9, 304 P.3d 810. And because this case was dismissed on
summary judgment, we review the district court’s legal
conclusions and ultimate grant or denial of summary judgment
for correctness and view the facts in the light most favorable to
4. As mentioned, supra ¶ 2, because we affirm the district court’s
dismissal of this case, we need not and do not address Owners’
arguments related to issues of negotiation and valuation.
20190010-CA 9 2020 UT App 139Salt Lake City v. Kunz
the nonmoving party. See LD III LLC v. Mapleton City, 2020 UT
App 41, n.1, 462 P.3d 816.
¶16 The City contends in the alternative that the court erred
by not allowing the City to amend its complaint. Generally, we
review a “denial of motions for leave to amend under an abuse
of discretion standard.” Haik v. Jones, 2018 UT 39, ¶ 11, 427 P.3d
1155. But “[w]hen the purported futility of the amendment
justifies the denial of a motion to amend, we review for
correctness.” Id. ¶ 16.
¶17 Owners cross-appeal, contending that the district court
erred in concluding that they were not entitled to attorney fees
and costs under federal law and the Utah Constitution. Owners
also raise an embedded issue of whether the court erred in
concluding that the City possesses extraterritorial power to take
their air rights under various sections of the Utah Code. These
issues are questions of law that we review for correctness. See
Richards v. Cox, 2019 UT 57, ¶ 7, 450 P.3d 1074 (explaining that
issues of the interpretation of constitutional and statutory
provisions are questions of law reviewed for correctness).
ANALYSIS
I. Summary Judgment
¶18 The City argues that the district court erred in dismissing
its complaint because the district court “failed to give effect to
[Owners’] admissions and misinterpreted the May 2009 partial
summary judgment granted to the City.” Specifically, the City
argues that Owners’ admissions—that certain facts were
“undisputed for the purposes of the current motions”—were
binding and that the succeeding judge failed to properly
consider the previous judge’s partial summary judgment ruling.
The City also argues that the district court erred by dismissing
this case under section 78B-6-504(2)(c) of the Utah Code. We
disagree on each point and address them in turn.
20190010-CA 10 2020 UT App 139Salt Lake City v. Kunz
A. Owners’ Admission in the 2009 Summary Judgment
Proceedings
¶19 We recently addressed admissions in the context of
summary judgment proceedings in Thompson v. Capener, 2019 UT
App 119, 446 P.3d 603. In that case, we explained,
The [party] expressly qualified that their admission
was solely for the purpose of the [temporary
restraining order] motion. Not only do we decline
to establish precedent that would discourage
parties from making admissions for the limited
purpose of a given motion, but we encourage
litigants to do so when reasonable. If a party
determines that a fact is immaterial or would
muddy the water in any given motion, we see no
harm in conditionally admitting that fact to
promote efficiency in resolving that particular
motion. And a party should not be punished for
doing so.
Id. n.4. This case presents a similar scenario.
¶20 Here, any admissions Owners made in the 2009 summary
judgment proceedings were limited in their applicability to the
then-pending motions before the district court. Indeed, Owners
stated that it was “undisputed for purposes of the current
motions” that the City carried out “timely and proper notice and
satisfaction of all statutory requirements and conditions.” And
the only issue being contested in those motions was whether the
City exceeded its extraterritorial eminent domain power.
Owners’ admissions came in response to the City’s partial
summary judgment motion on the extraterritorial eminent
domain issue, which in turn was in response to Owners’ motion
for judgment on the pleadings based on that same issue. And the
district court’s ruling on the matter was focused entirely on that
solitary issue.
20190010-CA 11 2020 UT App 139Salt Lake City v. Kunz
¶21 Moreover, the City’s own arguments put Owners’
admission in context, which was that the concession was limited
to the dispute over the City’s extraterritorial eminent domain
power. The City specifically pointed out that its partial motion
for summary judgment was “based on the grounds that the City
owns and operates [TVA] . . . [and] has been granted the
authority to condemn the air rights in question.” And whether
the City has the “authority” to condemn is a different issue
entirely than whether the City complied with the statutory
requirements in seeking condemnation. The district court did
not address anything regarding the latter issue in ruling on
whether the City had exceeded its extraterritorial eminent
domain power. Indeed, the district judge later reassigned to the
case specifically noted that Owners “made clear in [their
response] that they were only conceding [the latter issue] for
purposes of the motion. . . . [A] party reading that order without
considering the full history of the briefing might walk away with
the [wrong] impression.”
¶22 The parties’ conduct after the admission further buttresses
our conclusion that the scope of the 2009 summary judgment
motions was limited to adjudication of the extraterritorial
authority issue. Owners never withdrew the immediate
occupancy deposit, signaling that they retained their defenses,
including their defense that the City had not followed the proper
notice procedures. Owners also raised the statutory notice
requirements as an affirmative defense to the City’s amended
complaint, indicating that satisfaction of the statutory
requirements was in dispute. And the City propounded a
discovery request for documents related to that affirmative
defense. Merely pointing to a momentary or conditional
stipulation does not force the district court’s hand on the issue.
See Luna v. Luna, 2020 UT 63, ¶ 38; Baldwin v. Vantage Corp., 676
P.2d 413, 415 (Utah 1984) (“[T]he conduct of both parties
throughout the remainder of the proceeding showed that this
question was a material issue for the judge to determine.”).
Therefore, it is not dispositive that Owners did not dispute the
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issue of notice and an opportunity to be heard at that juncture of
the litigation.
¶23 In short, Owners’ statement was not a conclusive
admission on its own terms, due its context, and this was
underscored by the parties’ subsequent conduct. Rather, the
issue was conditionally conceded to focus on the issue then at
hand. See Thompson, 2019 UT App 119, n.4.
B. Judicial Consideration
¶24 The City next contends that the successor judge
committed reversible error in how he dealt with the predecessor
judge’s 2009 partial summary judgment ruling. In particular, the
City argues that the successor judge erred in concluding that the
issue of “whether there was proper notice and disclosure as
required by the statute ha[d] not yet been decided.” The City
bases this argument on the language in the ruling in which the
court explained that one of the undisputed issues was that
Owners “were provided with timely and proper notice
regarding the condemnation efforts.” We reject this argument
because we disagree with its premise. The language the City
refers to was not a ruling on the issue.
¶25 When a party files a motion, a court evaluates whether
the party is entitled to the relief it seeks. See Utah R. Civ. P. 7; id.R. 56(a). When the court does not engage in any analysis,
evaluation, or state its decision, it has not ruled on that issue.
Additionally, “[a] court’s interpretation of its own order is
reviewed for clear abuse of discretion and we afford the district
court great deference.” Uintah Basin Med. Center v. Hardy, 2008
UT 15, ¶ 9, 179 P.3d 786.
¶26 Here, reconsideration of the notice issue was unnecessary
because the issue was not decided in the 2009 partial summary
judgment ruling. In that ruling, the court framed the issue
addressed by the motion—whether the City had extraterritorial
eminent domain power—and described the issues it was
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assuming for the purposes of the motion at that time. The court
merely identified that the notice issue was not in dispute for that
motion and then did not mention it again. Indeed, the court
spent the rest of the order addressing the issue of extraterritorial
eminent domain power. In short, we agree with the successor
judge that the notice issue had not been decided in the 2009
partial summary judgment ruling, and therefore the court did
not commit reversible error in its interpretation of the
predecessor judge’s order. See id. 5
C. Section 78B-6-504(2)(c)—Statutory Conditions Precedent
to Taking
¶27 The City finally contends that the district court erred in
dismissing its complaint under Utah Code section 78B-6-
504(2)(c). The City concedes that it did not strictly comply with
the requirements of the statute, namely by neglecting the time
requirement for sending written notice and not allowing Owners
to speak at the third council meeting. But the City proceeds with
a three-part argument. It first argues that “the district court erred
by requiring strict compliance,” suggesting substantial
compliance is enough. It next asserts that the actual notice
provided was enough. And it finally argues that Owners had to,
but could not, show prejudice. We disagree and affirm the
district court’s dismissal.
¶28 To frame the arguments, we first examine the statute’s
language. The relevant language of section 78B-6-504 confirms
5. As a side note, this case is somewhat unusual from a practical
standpoint. In many cases, after an order of immediate
occupancy is granted, the government begins occupying the
space in a way that is permanent (e.g., by installing a road or
power poles). Hence, parties in other cases who choose to wait
years after the order of immediate occupancy to raise an issue
with the original notice or opportunity to be heard may confront
a more difficult practical impediment.
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that the City’s actions fell short of both the ten-business-day-
written notice and the-opportunity-to-be-heard requirements.
See Utah Code Ann. § 78B-6-504(2)(c)–(d) (LexisNexis Supp.
2018). 6 Those subsections required that, “[b]efore taking a final
vote to approve the filing of an eminent domain action,” the City
provide written notice to Owners “at least 10 business days
before the public meeting” and “allow the property owner the
opportunity to be heard on the proposed taking” at each
meeting a vote was expected to be held. Id. 7
6. The relevant provisions, in full, state:
(c) Before taking a final vote to approve the filing
of an eminent domain action, the governing body
of each political subdivision intending to take
property shall provide written notice to each
owner of property to be taken of each public
meeting of the political subdivision’s governing
body at which a vote on the proposed taking is
expected to occur and allow the property owner
the opportunity to be heard on the proposed
taking.
(d) The requirement under Subsection (2)(c) to
provide notice to a property owner is satisfied by
the governing body mailing the written notice to
the property owner:
(i) at the owner’s address as shown on the
records of the county assessor’s office; and
(ii) at least 10 business days before the public
meeting.
Utah Code Ann. § 78B-6-504(2)(c)–(d) (LexisNexis Supp. 2018).
7. There is wrangling over whether allowing landowners an
opportunity to speak at some point in the process fulfills the-
opportunity-to-be-heard component of the statute, rather than
(continued…)
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¶29 The City is right to concede that it did not fulfill the
statutory requirements. Based on the undisputed facts, the City
fully complied with those requirements as to the first meeting by
sending notice at least ten business days in advance and
allowing Owners to speak at the meeting. However, it only half
complied as to the second meeting because it allowed Owners to
speak but did not send written notice at least ten business days
in advance. And it did not comply with either requirement as to
the third meeting because the notice it sent arrived only three
business days before the meeting and Owners were not allowed
an opportunity to be heard.
¶30 Notwithstanding its acknowledged shortcomings, the
City maintains that dismissal of this case was erroneous, arguing
that substantial compliance rescues it from its procedural
missteps. But the City’s argument is contrary to longstanding
precedent. Statutes governing the procedures and prerequisites
for exercising either a general or a specific grant of eminent
domain power receive a strict construction. See Salt Lake County
v. Murray City Redevelopment, 598 P.2d 1339, 1345 (Utah 1979)
(“The general rule is that, where the statute prescribes the
(…continued)
allowing them the opportunity to speak at every meeting. In our
view, the phrase “of each public meeting” and more specifically
the word “each” answers that landowners of property to be
taken are entitled to receive an opportunity to speak at every
public meeting with an expected vote. See Utah Code Ann.
§ 78B-6-504(2)(c) (LexisNexis Supp. 2018). The point is to speak
to the decision makers. Asserting that being given three minutes
to speak at any point in the process is sufficient ignores the
reality that in any given meeting city council members may be
absent or the membership of the council can change over time.
Accordingly, unless the landowner is allowed to speak at the
meeting where the vote is taken, those voting might never hear
any of the landowner’s concerns. Regardless of the answer,
however, the City did not fulfill the notice requirement.
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procedure or steps to be taken by a municipal corporation in
exercising the right of eminent domain, the procedure prescribed
by the statute becomes a matter of substance, and must be
strictly followed by the condemnor as against the owner of the
property sought to be condemned.” (cleaned up)); accord Town of
Perry v. Thomas, 22 P.2d 343, 346 (Utah 1933); Town of Tremonton
v. Johnston, 164 P. 190, 192 (Utah 1917); W. & G. Co. v.
Redevelopment Agency, 802 P.2d 755, 761 (Utah Ct. App. 1990).
¶31 The case of Salt Lake County v. Murray City Redevelopment,
598 P.2d 1339 (Utah 1979), is particularly on point. There, Salt
Lake County attempted to redevelop areas it had determined to
be blighted, published several notices, and adopted an ordinance
to do so. Id. at 1340. The appellants challenged the ordinance, but
the district court granted summary judgment to the county. Id. at
1341. On appeal, the parties disputed whether the county had
complied with a notice statute. Id. at 1344. That statute required
notice to be given “not less than once a week for [f]our
successive weeks” to enable the county to exercise eminent
domain power. Id. (cleaned up). In concluding that the county
violated the statute, the court explained that the statute was to be
construed strictly: “[B]ecause redevelopment is a serious action
that may be in derogation of individual property rights, . . . strict
compliance with the enabling legislation is required to enact an
ordinance setting up a redevelopment plan.” Id. The court later
explained that the county’s several publications did not meet the
statute’s strict requirements and that “the ordinance was not
validly adopted” because “[n]o notice was published during”
the fourth week and “the hearing commenced on the [v]ery day
the last notice was published.” Id. at 1345–46; see id. (noting that
courts “must remain sensitive to the need for [s]trict compliance
with . . . statute[s] concerning notice . . . in order to protect
private property rights, which are of fundamental importance”).
The court therefore reversed. Id. at 1346.
¶32 Here, the facts are strikingly similar. While the City
notified Owners of the eminent domain proceedings, the notice
was inadequate because it did not adhere to the statute’s
20190010-CA 17 2020 UT App 139Salt Lake City v. Kunz
directive regarding the timing of that notice. Thus, Murray City
Redevelopment confirms that this statute must be construed
strictly against the City. Moreover, the purpose for reading
eminent domain statutes strictly—to protect the rights of
property owners—also supports reading this statute strictly. See
Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 17 n.16, 267
P.3d 863.
¶33 Lastly, the cases the City cites are distinguishable because
they deal with other statutory topics. See Aaron & Morey Bonds
& Bail v. Third Dist. Court, 2007 UT 24, ¶ 11, 156 P.3d 801 (fax
number requirement in bail bond notification); Cache County v.
Property Tax Div., 922 P.2d 758, 764 (Utah 1996) (time to complete
review of property tax appeal); Kennecott Copper Corp. v. Salt Lake
County, 575 P.2d 705, 707 (Utah 1978) (time for setting tax levy);
Southwick v. Southwick, 2011 UT App 222, ¶ 11, 259 P.3d 1071(recitation of statutory provision related to disclaimer of interest
in trust). And the statute in this case does not relate to a mere fax
number, recitation of a statute in a disclaimer, or a timeframe
like the ones in the cited cases; instead, it goes to the weighty
matter of providing procedural fairness and placing a check on a
government entity’s immense power to deprive an owner of a
substantive private property right. Thus, those cases do not
allow a reading of substantial compliance into this statute
because the statute’s requirements are mandatory.
¶34 For the foregoing reasons, we conclude that the notice
and hearing requirements of section 78B-6-504(2)(c) are
mandatory and require strict compliance. See Greene v. Utah
Transit Auth., 2001 UT 109, ¶ 14, 37 P.3d 1156 (“Where, as here,
the statute is clear, readily available, and easily accessible by
counsel, there is no reason to require anything less than strict
compliance.”).
¶35 That leaves the City’s two latter arguments. The City
makes an argument that actual notice and previous
opportunities to be heard fulfilled the purposes of the statute.
But this argument is a nonstarter. Once the statute is determined
20190010-CA 18 2020 UT App 139Salt Lake City v. Kunz
to require strict compliance, all bets are off for any actions other
than exactness. See Moore v. Schwendiman, 750 P.2d 204, 206 (Utah
Ct. App. 1988) (“[O]ne must comply precisely with a mandatory
requirement or the transaction or process is invalidated.”).
Actual notice is not what the statute says. And “[c]ompliance
with the statute is the determining issue, not actual notice. In the
absence of some ambiguity, we will not disturb explicit
legislative requirements and read into the statute an actual
notice exception.” See Greene, 2001 UT 109, ¶ 15. Doing so would
fly in the face of our pursuit, which is to give full force to our
legislature’s intent and the law as it is written. The City’s actions
indisputably violated the explicit terms of the statute and
subverted its objective of abundant procedural fairness to
property owners. Therefore, the City’s argument is
unpersuasive.
¶36 The City also argues that the district court erred by not
requiring Owners to prove prejudice. Owners contest the
premise that prejudice need be shown at all with respect to
violations of eminent domain statutes. We agree that a prejudice
showing is unnecessary here. 8
¶37 Many of the same authorities that dictated a strict
construction of statutes regarding substantive rights like section
78B-6-504 also teach that showing prejudice is unnecessary when
a substantive right is at issue. See McBride-Williams v. Huard, 2004
UT 21, ¶ 12, 94 P.3d 175 (“A party’s failure to satisfy a
8. We acknowledge that our supreme court recently declined to
address this issue because it was unnecessary to do so under the
circumstances of the case before them. See Potter v. South Salt
Lake City, 2018 UT 21, ¶¶ 27–28 & n.3, 422 P.3d 803 (“We see no
reason to reach the question whether prejudice is required in an
eminent domain setting because we conclude this case does not
sound in eminent domain.”). To us, it appears that our supreme
court has repeatedly addressed the issue implicitly in their
previous jurisprudence as we explain.
20190010-CA 19 2020 UT App 139Salt Lake City v. Kunz
precondition results in an adjudication for lack of jurisdiction
. . . .” (cleaned up)); Murray City Redevelopment, 598 P.2d at 1345
(explaining that procedural preconditions are “jurisdictional,
and may not be disregarded,” and not conducting prejudice
analysis (cleaned up)); Town of Tremonton v. Johnston, 164 P. 190,
192 (Utah 1917) (stating that landowners have “the right to insist
that the statute be followed” and reversing without analyzing
prejudice); W. & G. Co. v. Redevelopment Agency, 802 P.2d 755, 765
(Utah Ct. App. 1990) (explaining that “[i]f adequate notice and
an opportunity to be heard are not given, the proceedings are
void and those not properly notified are not bound by the
proceedings because the giving of such notice is jurisdictional”
and not addressing the issue of prejudice); Moore, 750 P.2d at 206(“[O]ne must comply precisely with a mandatory requirement or
the transaction or process is invalidated.”); Southwick, 2011 UT
App 222, ¶ 12 (suggesting that substantial rights require strict
compliance, not prejudice consideration).
¶38 Two cases from our supreme court lend further support
to not requiring a prejudice analysis. In Marion Energy, Inc. v. KFJ
Ranch Partnership, 2011 UT 50, 267 P.3d 863, the court affirmed
the district court’s dismissal of the case due to lack of authority
to condemn the land. Id. ¶ 34. Importantly, the court did not
analyze prejudice in coming to its conclusion. See generally id.
And more recently in Salt Lake City Corp. v. Evans Development
Group, LLC, 2016 UT 15, 369 P.3d 1263, the court vacated a final
judgment of condemnation because the government entity
“failed to follow statutory requirements that the condemnor be in
charge of the public use to which the property [is] put and to
oversee the construction of that public use.” Id. ¶ 23. Again, the
court did this without engaging in a prejudice analysis. See
generally id. Thus, we conclude that Owners need not show
prejudice.
¶39 In sum, we view section 78B-6-504(2)(c)’s requirements as
strict based on longstanding precedent. Actual notice simply
won’t fly. And we conclude that Owners need not show
20190010-CA 20 2020 UT App 139Salt Lake City v. Kunz
prejudice in this context. Accordingly, we affirm the district
court’s interpretation and dismissal under the statute.
II. Amendment of the Complaint
¶40 Alternatively, the City argues that the district court erred
by not allowing the City to amend its complaint. We disagree.
An amendment in this case would be unwarranted. The City
failed to adequately explain why an amendment should be
granted and failed to provide a proposed amended complaint
for the district court’s consideration. See Utah R. Civ. P. 15(a)(2)
(“The party must attach its proposed amended pleading to the
motion to permit an amended pleading.”); Haik v. Jones, 2018 UT
39, ¶¶ 34–35, 427 P.3d 1155 (“The district court did not abuse its
discretion in denying a procedurally deficient motion. The
district court also properly concluded that such an amendment
would be futile because [petitioner] provided no basis under
which he would have alleged standing.”); Puttuck v. Gendron,
2008 UT App 362, ¶ 24, 199 P.3d 971 (“The trial court did not
abuse its discretion in denying [p]laintiffs’ request for leave to
amend their complaint because [p]laintiffs did not comply with
Utah’s formal motion practice rules when they made the
request.”).
¶41 In addition, amending the complaint would be futile
because the City cannot retroactively follow the statutory
preconditions for condemning private property rights. The facts
are undisputed, and amendment will not change them. The City
failed to follow the statutory conditions, and it must file a new
complaint—alleging facts that fulfill section 78B-6-504—if it
elects to condemn Owners’ air rights again. Accordingly, the
district court’s refusal to allow the City to amend its complaint
was not improper.
III. Attorney Fees and Costs
¶42 As part of their cross-appeal, Owners contend that the
district court erred by refusing to award them attorney fees and
20190010-CA 21 2020 UT App 139Salt Lake City v. Kunz
other litigation costs under both federal law and the Utah
Constitution. However, after their appeal was filed, our supreme
court issued its decision in Utah Department of Transportation v.
Boggess-Draper Co., 2020 UT 35, 467 P.3d 840. This prompted
Owners to correctly concede that constitutional just
compensation does not include litigation fees and costs. See Utah
Const. art. I, § 22; Boggess-Draper Co., 2020 UT 35, ¶ 47 (affirming
the denial of a motion for litigation fees and costs under the Utah
Constitution); Board of County Comm’rs v. Ferrebee, 844 P.2d 308,
313–14 (Utah 1992) (holding that the constitutional right of just
compensation extends only to takings of and damages to
property, not to the costs of litigation); Redevelopment Agency v.
Daskalas, 785 P.2d 1112, 1123 (Utah Ct. App. 1989) (explaining
that “just compensation is for the property and not to the owner”
and that “attorney fees and other” litigation expenses “are non-
compensable as ‘just compensation’” (cleaned up)); see also
United States v. Bodcaw Co., 440 U.S. 202, 203 (1979) (per curiam)
(“Attorneys’ fees and expenses are not embraced within just
compensation.” (cleaned up)). Accordingly, we do not address
this constitutional issue further.
¶43 As to Owners’ arguments under federal law, we disagree
and affirm the district court’s denial of fees and costs. Owners
start by arguing that they are entitled to their litigation fees and
costs under federal law, primarily citing section 4654 of the
United States Code. 9 That statute provides that an owner of real
property is entitled to reasonable costs and attorney fees if “the
9. Owners peripherally cite a federal regulation. See 49 C.F.R.
§ 24.107 (2005). But even assuming that regulation applies to the
City because it receives federal funding, Owners are not entitled
to litigation fees and costs under that regulation for one of the
same reasons they are not entitled to litigation fees and costs
under the statute: the district court did not enter a judgment that
the City cannot condemn the property rights; rather, the ruling
was that the City did not follow the statutory checklist for doing
so. See infra ¶ 44.
20190010-CA 22 2020 UT App 139Salt Lake City v. Kunz
final judgment is that the Federal agency cannot acquire the real
property by condemnation.” 42 U.S.C. § 4654(a)(1). When the
relevant statutory subsection is read, it reveals that Owners’
argument has several insurmountable flaws:
The Federal court having jurisdiction of a proceeding
instituted by a Federal agency to acquire real
property by condemnation shall award the owner
of any right, or title to, or interest in, such real
property such sum as will in the opinion of the
court reimburse such owner for his reasonable
costs, disbursements, and expenses, including
reasonable attorney, appraisal, and engineering
fees, actually incurred because of the
condemnation proceedings, if—
(1) the final judgment is that the Federal agency cannot
acquire the real property by condemnation . . . .
Id. § 4654(a) (emphasis added).
¶44 First, that section is unhelpful to Owners because it
applies only to federal courts by its express terms. See id. Second,
it is also inapplicable because the City is indisputably not a
federal agency. See id.; see also id. § 4601(1) (providing a
definition for “Federal agency” that does not include states or
their political subdivisions); Ferrebee, 844 P.2d at 312 (“[T]he
policies outlined in subchapter III of the Uniform Act apply only
to federal agencies and programs . . . .”); 8A Patrick J. Rohan
& Melvin A. Reskin, Nichols on Eminent Domain § G20.05[3] (3d
ed. 2018) (“[T]he provisions of 42 U.S.C. § 4654, entitling
successful plaintiffs to litigation expenses, apply only to takings
by a federal agency . . . .”). Finally, even if that statute were
applicable, it would not provide the result Owners seek because
the final judgment of the district court was not that the City
“cannot acquire the real property by condemnation.” See 42
U.S.C. § 4654(a)(1) (emphasis added). Rather, the court
dismissed this particular action because the City did not follow
the statutory procedural conditions for doing so. Cf. United States
20190010-CA 23 2020 UT App 139Salt Lake City v. Kunz
v. 4.18 Acres of Land, 542 F.2d 786, 789 (9th Cir. 1976) (per curiam)
(“The trial court held only that the action was premature,
dismissing without prejudice because of a correctable procedural
flaw. Such a dismissal is not a final judgment that the federal
agency ‘cannot acquire the real property by condemnation.’”
(cleaned up)). Indeed, the district court made this very
distinction and specifically stated that the City can condemn the
property, stating: “[W]e fully expect that at some point, the City
will bring a condemnation claim and—and will likely be
successful at some point on that, if they jump through the hoops
all correctly. . . . [T]here has not been a final judgment that
condemnation cannot be had.” Thus, the statute does not
support Owners’ argument for litigation fees and costs.
¶45 In response, Owners contend that the district court erred
in concluding that the City could potentially acquire the
property by condemnation. They argue that the City cannot
acquire their property by condemnation, asserting that such
would exceed the City’s extraterritorial condemnation power.
But the district court’s conclusion on this point was correct
under at least two independent statutory provisions.
¶46 First, the City has the authority to condemn the air rights
at issue here under section 72-10-413 of the Utah Code. That
statute deals with political subdivisions that have certain
connections to airports and specifically states,
A political subdivision within which the property
or nonconforming use is located or the political
subdivision owning the airport or served by it may
acquire, by purchase, grant, or condemnation in
the manner provided by the law under which
political subdivisions are authorized to acquire real
property for public purposes, an air right,
navigation easement, or other estate or interest in
the property or nonconforming structure or use in
question . . . .
20190010-CA 24 2020 UT App 139Salt Lake City v. Kunz
Utah Code Ann. § 72-10-413 (LexisNexis 2017) (emphasis
added).
¶47 By its explicit terms, the statute provides a political
subdivision that owns an airport with the power to condemn
property related to its airport. Importantly, the statute does not
limit the owning political subdivision’s condemnation power to
those airports inside its geographic territory; rather, it merely
requires ownership of an airport. Indeed, the statute
differentiates between “[a] political subdivision within which the
property or nonconforming use is located” and a “political
subdivision owning the airport,” granting both of them
condemnation authority. See id. Thus, the location of airports
was on the legislature’s mind when it drafted the statute, and it
chose not to limit geographically the condemnation power of
political subdivisions that own airports. Another section of the
Uniform Airports Act buttresses this point, saying, “A county
may not exercise the authority conferred in this section outside
of its geographical limits except jointly with an adjoining
county.” Id. § 72-10-203(2) (LexisNexis Supp. 2019) (emphasis
added). By including only a county and not any of the other
political subdivisions or authorities, this language further
evinces the legislature’s intent to limit territorial power and its
choice to limit such power only as it pertains to a county. Finally,
the legislature explicitly contemplated extraterritorial airports by
requiring those political subdivisions that own them to establish
advisory boards. See generally id. § 72-10-203.5 (LexisNexis 2017)
(describing advisory boards for “extraterritorial airports”
defined as airports outside the boundary of a municipality and
located in another). Because it is undisputed that the City owns
TVA, the City can acquire the air rights it seeks through
condemnation under section 72-10-413—if, of course, it follows
the statutorily prescribed steps.
¶48 Additionally, the Utah Code otherwise grants the City
authority to condemn the air rights at issue here. It contemplates
a situation in which landowners and the described entities
cannot come to an acquisition agreement and states in full:
20190010-CA 25 2020 UT App 139Salt Lake City v. Kunz
(1) Private property needed by the department or a
county, municipality, or airport authority for an
airport or landing field or for the expansion of an
airport or landing field may be acquired by grant,
purchase, lease, or other means if the department
or the political subdivision is able to agree with the
owners of the property on the terms of acquisition.
(2) If no agreement can be reached, the private property
may be obtained by condemnation in the manner
provided for the state or a political subdivision to
acquire real property for public purposes.
Utah Code Ann. § 72-10-205 (LexisNexis 2017) (emphasis
added). Here, the City sought but could not agree with Owners
on an acquisition of the air rights, and therefore subsection two
of the statute specifically empowered the City to obtain the air
rights by way of condemnation. See id.; see also id. § 72-10-209
(LexisNexis Supp. 2019) (providing condemnation power to
municipalities with airports to “acquire the air rights over
private property necessary to [e]nsure safe approaches to the
landing areas of the airports.”). 10
¶49 Finally, these statutes fall under the last category of
eminent domain canons—grants of eminent domain power for a
clear and explicit purpose—which are construed liberally. See
Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 16 n.14, 267
P.3d 863; Monetaire Mining Co. v. Columbus Rexall Consol. Mines
Co., 174 P. 172, 175 (Utah 1918). The purpose here is tending to
airports. Thus, if there were any ambiguity, it would need to be
read in furtherance of extraterritorial power.
10. The parties also dispute whether Utah Code section 10-8-2
grants the City extraterritorial condemnation power here. But we
do not decide whether it does because of these other statutory
grants of power.
20190010-CA 26 2020 UT App 139Salt Lake City v. Kunz
¶50 In sum, these statutory provisions unambiguously
provide the City with extraterritorial eminent domain power in
this case. Monarrez v. Utah Dep’t. of Trans., 2014 UT App 219,
¶ 16, 335 P.3d 913 (“A determination that a statute’s plain
language unambiguously informs the public of its meaning
generally ends the inquiry about a statute’s interpretation.”).
¶51 Nevertheless, Owners make an intra-textual argument in
response. They argue that these statutes require “additional,
independent authority, such as the general condemnation
authority” for the City to condemn their property because the
statutes include the phrase “in the manner provided.” Utah
Code Ann. §§ 72-10-205, -413. We disagree. We read that phrase
as referring to procedure, not authority. Cf. Salt Lake City Corp. v.
Evans Dev. Group, LLC, 2016 UT 15, ¶ 23, 369 P.3d 1263(“[A]lthough a property exchange may not be altogether
prohibited by our eminent domain statutes, it may not be
accomplished in the manner attempted here.” (emphasis
added)); see also Manner, Dictionary.com, https://www.dictionary
.com/browse/manner#:~:text=noun,the%20manners%20of%20her
%20time [https://perma.cc/HZA9-R7YX] (“[A] way of doing,
being done, or happening; mode of action occurrence, etc.”);
Utah Code Ann. § 68-3-11 (LexisNexis 2017) (“Words and
phrases are to be construed according to the context and the
approved usage of the language . . . .”). And this case is a perfect
example of how the City could have the authority to condemn
the property but failed to do so in a procedurally proper way—
i.e., in the manner provided by law. 11
11. Reading these statutes as requiring an independent grant of
authority would render them greatly superfluous, which is a
result we seek to avoid. See Turner v. Staker & Parson Cos., 2012
UT 30, ¶ 12, 284 P.3d 600 (“Wherever possible, we give effect to
every word of a statute, avoiding any interpretation which
renders parts or words in a statute inoperative or superfluous.”
(cleaned up)); Antonin Scalia & Bryan A. Garner, Reading Law:
(continued…)
20190010-CA 27 2020 UT App 139Salt Lake City v. Kunz
¶52 Owners also argue that the legislature’s amendment of
section 72-10-203 limited extraterritorial condemnation power to
joint and adjoining counties. Owners point out that this
provision used to say “either within or without their
geographical limit,” see Utah Code Ann. § 72-10-203 (Michie
1994), but was later amended to state that authority may not be
exercised “outside of its geographical limits except jointly with
an adjoining county,” see id. § 72-10-203(2) (LexisNexis Supp.
2019). But this argument misses the mark. To start, the section
relates to operations of currently owned property rights, not
rights the government entity would acquire through eminent
domain. See id. § 72-10-203(1). Moreover, the previous language
was superfluous because the other sections already provide the
power to condemn extraterritorial property by their own terms.
See id. §§ 72-10-205, -413 (LexisNexis 2017).
¶53 Finally, this argument overlooks two key phrases. First,
the statute says “the authority conferred in this section,” which
clarifies that the following restriction of geographical limits or
joint ventures therein applies only to the actions taken under
section 72-10-203. See id. § 72-10-203(2) (LexisNexis Supp. 2019).
Again, that authority relates to currently owned property, not
other actions taken under other sections of the Utah Code.
Second, as mentioned, the statute focuses on counties, stating
that a “county may not exercise the authority conferred in this
section outside of its geographical limits except jointly with an
(…continued)
The Interpretation of Legal Texts 176 (“If a provision is susceptible
of (1) a meaning that gives it an effect already achieved by
another provision, or that deprives another provision of all
independent effect, and (2) another meaning that leaves both
provisions with some independent operation, the latter should
be preferred.”). Indeed, why would the legislature enact such
statutes purporting to provide specific condemnation authority
by their terms, only to require the government entity to search
for authority elsewhere?
20190010-CA 28 2020 UT App 139Salt Lake City v. Kunz
adjoining county,” id., and not on any other political
subdivisions or authorities. Once more, this evinces the
legislature’s intent to limit territorial power and its choice to
limit the power of only a county. Thus, section 72-10-203 does
not help Owners’ cause.
¶54 In sum, we affirm the district court’s ruling that the City
did not exceed its extraterritorial power to condemn the
property at issue in this case. The City remains able to condemn
the air rights—or at least no court has ruled the City cannot.
Accordingly, we also affirm the district court’s denial of Owners’
request for litigation fees and costs under the cited federal laws.
CONCLUSION
¶55 We affirm the district court’s dismissal of this case under
section 78B-6-504(2)(c) of the Utah Code. In doing so, we reject
the City’s argument that Owners’ statement related to the 2009
partial summary judgment motion was a conclusive admission
for purposes other than the then-pending motions. We also reject
the City’s argument that the court erred in how it viewed that
prior ruling. We disagree with the City on its arguments related
to section 78B-6-504(2)(c). That statute must be strictly followed
and requires no proof of prejudice. And we reject the City’s
argument that the court erred by not allowing the City to amend
its complaint, as any amendment would have been futile. As to
the issues in Owners’ cross-appeal that we reach, we affirm the
district court’s denial of litigation fees and costs to Owners, for
reasons including the associated legal conclusion that the City
can exercise extraterritorial eminent domain power.
¶56 Affirmed.
20190010-CA 29 2020 UT App 139