Northern Monticello Alliance v. San Juan County

2022 UT 10IN THE
SUPREME COURT OF THE STATE OF UTAH
NORTHERN MONTICELLO ALLIANCE, LLC,
Appellee,
v.
SAN JUAN COUNTY,1
Appellants.
No. 20200563
Heard September 13, 2021
Filed February 24, 2022
On Certiorari to the Utah Court of Appeals
Seventh District, Monticello
The Honorable Lyle R. Anderson
No. 170700006
Attorneys:
Barton H. Kunz II, Salt Lake City, for appellants San Juan County
and San Juan County Commission
Paul W. Shakespear, Elizabeth M. Brereton, Salt Lake City, for
appellants Sustainable Power Group, LLC, and Latigo Wind Park,
LLC
J. Craig Smith, Jennie B. Garner, Salt Lake City, for appellee
Northern Monticello Alliance, LLC
JUSTICE HIMONAS authored the opinion of the Court in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE PEARCE, and JUSTICE PETERSEN joined.
_____________________________________________________________
1 Other appellants in this case are: San Juan County Commission,
Sustainable Power Group, LLC, and Latigo Wind Park, LLC.
NORTHERN MONTICELLO ALLIANCE v. SAN JUAN COUNTY
Opinion of the Court
JUSTICE HIMONAS, opinion of the Court:
INTRODUCTION
¶1 This case involves a curiously complex set of appeals
stemming from the San Juan County Planning and Zoning
Commission‘s decision not to revoke a wind farm‘s conditional use
permit (CUP). Northern Monticello Alliance (NMA), a limited
liability company comprised of individual landowners whose
property is adjacent to the wind farm, contends that it had a right to
participate in the revocation hearing, which was denied to it. Our
court of appeals agreed, finding that NMA had a due process right
to participate in the revocation hearing that corresponded with the
right to appeal the decision of the hearing.
¶2 Although we agree with the court of appeals that NMA had
a right to appeal the Planning Commission‘s decision not to revoke
the CUP, we disagree that this right to appeal necessarily provides it
with the right to participate in the revocation hearing. Neither the
Utah Code, the San Juan County Zoning Ordinance (at times, the
Zoning Ordinance), nor the conditions in the CUP itself provide
NMA with such a right, nor do they create a protected interest in the
enforcement of the CUP.
BACKGROUND
I. FACTUAL BACKGROUND
¶3 In 2012, the San Juan County Planning and Zoning
Commission issued a CUP to Wasatch Wind Intermountain, LLC, to
allow for the construction of a wind farm on undeveloped land in
San Juan County.2 Three months later, the Planning Commission
held a public hearing, at which they amended the previously issued
CUP.3 The now-amended CUP required current and future
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2 This case reached our court of appeals on appeal from the
district court‘s grant of summary judgment. As such, we recite the
facts in the light most favorable to NMA, the nonmoving party. Judge
v. Saltz Plastic Surgery, P.C., 2016 UT 7, ¶ 3 n.1, 367 P.3d 1006; see also
Fire Ins. Exch. v. Oltmanns, 2018 UT 10, ¶ 7, 416 P.3d 1148.
3 As NMA noted in its brief to us, there exists no written
document setting forth the terms of the amended CUP or the
mitigation conditions attached to it. The conditions instead ―must be
gleaned from the minutes and transcript‖ of the public hearing.
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permittees ―to incorporate as much flicker, light, sound, mitigation
as possible, and to meet all industry standards of those challenges.‖4
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4 According to NMA, the CUP also required the holder of the
CUP to purchase the NMA property under purchase agreements
executed in February 2013. But this fact is unsupported by the
record. The Planning Commission, at the hearing amending the
CUP, only put an addendum on the CUP ―to incorporate as much
flicker, light, sound, mitigation as possible, and to meet all industry
standards of those challenges . . . reiterating that all and any new
land purchase lease deals be in writing for any contiguous and
affected landowners. . . . [A]ny mitigation and standards and
conditions of this CUP must be met by any and all project
development people, be they owners now or in the future, and all of
these be met at the time of building permit issuance.‖ And
throughout that same hearing, the Planning Commission made clear
that any private deal or purchase agreement between NMA and
Wasatch Wind was outside the realm of the CUP‘s conditions.
Indeed, the Chairwoman at the hearing said: ―[T]his Board cannot
regulate private deals;‖ ―purchase and lease agreements, that‘s up to
[NMA and Wasatch Wind/Latigo Wind Park];‖ ―we don‘t get to
enforce [purchase and lease agreements], we can‘t tell them what
land to buy or who to buy it from;‖ and ―[i]f they don‘t work a deal,
they don‘t work a deal. That‘s not up to us, nor is it up to our
conditions.‖ And in its brief to the County Commission regarding
NMA‘s appeal of its decision, the Planning Commission again
emphasized that the conditions placed on the CUP did not include
any requirement to purchase the land, because the Planning
Commission ―was not comfortable addressing such topics as land
payments as mitigation measures because it believes such topics are
considered private matters to be settled privately between the
parties—not to be meddled in by the [Planning Commission].‖ The
Planning Commission concluded that if the holder of the CUP
―wants to self-impose conditions on itself with its neighbors it
should be permitted to do so, but the [Planning Commission] will
not interfere nor be involved with the negotiation or enforcement of
such conditions.‖
Thus, although we recite the facts in the light most favorable to
NMA, supra ¶ 3 n.3, we will not recite facts unsupported, and
contradicted, by the record below. See Schnuphase v. Storehouse Mkts.,
918 P.2d 476, 477–78 (Utah 1996) (―[B]are contentions, unsupported
by any specification of facts in support thereof, raise no material
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Opinion of the Court
Later, Wasatch Wind sold the wind park to Sustainable Power
Group, LLC (sPower).
¶4 In August 2015, NMA complained to the Planning
Commission that sPower was not fulfilling the conditions of its
CUP.5 The Planning Commission voted to hold a hearing to consider
revoking the CUP. NMA attended this hearing but was not allowed
to participate; only sPower was permitted to present evidence.
Several days later, the Planning Commission voted not to revoke the
CUP.
¶5 Following the Planning Commission‘s decision not to
revoke the CUP, NMA appealed to the San Juan County
Commission. The County Commission held a hearing and
subsequently issued a written decision reversing the Planning
Commission‘s decision and remanding the matter back to the
Planning Commission, indicating that sPower had provided
insufficient evidence that it had satisfied the conditions of the CUP.
Shortly after this decision, the County Commission received a letter
from sPower asking the County Commission to reconsider its
decision; sPower did not copy NMA on this letter. The County
Commission held a closed meeting to consider the letter, and then
issued an amendment to its written decision—this time upholding
the Planning Commission‘s decision not to revoke the CUP.
¶6 NMA appealed the County Commission‘s amended
decision to the district court, which, in turn, remanded the case back
to the County Commission because of due process violations. The
court concluded that ―the County‘s decision to reconsider its earlier
order was illegal because it violated NMA‘s due process rights‖ in
that it was based on an ―ex parte communication‖ and NMA was
neither given notice nor an opportunity to be heard. It remanded the
case to the County Commission specifically to give NMA a chance to
be heard and respond to sPower‘s letter requesting reconsideration.
On remand, the County Commission heard from both NMA and
questions of fact as will preclude the entry of summary judgment.‖
(quoting Massey v. Utah Power & Light, 609 P.2d 937, 938 (Utah 1980)).
5 Technically speaking, the CUP is an amended permit issued to
Latigo Wind Park in 2012. Latigo Wind Park is now a wholly-owned
subsidiary of sPower. For the reader‘s sake, and unless the
distinction matters, we refer to the amended CUP as only the CUP
and to Sustainable Power Group and Latigo Wind Farm collectively
as sPower.
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sPower on this matter. The County Commission subsequently
upheld the Planning Commission‘s decision not to revoke the CUP.
¶7 NMA again appealed the County Commission‘s decision to
the district court. Both parties moved for summary judgment. The
district court granted the County‘s motion for summary judgment,
finding that, because the County Commission heard from NMA on
sPower‘s letter and request for reconsideration, the decision was
supported by substantial evidence and no longer illegal. NMA then
appealed to the court of appeals.
II. THE COURT OF APPEALS‘ DECISION
¶8 A majority of the court of appeals panel voted to reverse the
district court‘s grant of summary judgment and to remand the case
because it determined that NMA members had due process rights
granted by the County Land Use, Development, and Management
Act (CLUDMA) and the relevant sections of the San Juan County
Zoning Ordinance.6 N. Monticello All. LLC v. San Juan Cnty., 2020 UT
App 79, ¶¶ 10–15, 438 P.3d 537. Judge Christiansen Forster
concurred in the result, but concluded that the due process rights
flowed, instead, from a protectable property interest in San Juan
County‘s enforcement of the mitigation conditions placed upon the
CUP. Id. ¶¶ 27–28 (Christiansen Forster, J., concurring).
¶9 The majority opinion rested on provisions of CLUDMA and
the Zoning Ordinance that provided NMA the right to appeal and
then instructed the appeal authority to ―respect the due process
rights of‖ the participants on appeal. See id. ¶ 11 (citing UTAH CODE
§§ 17-27a-703(1); 17-27a-706(2); SAN JUAN COUNTY, UTAH, ZONING
ORDINANCE (SJCZO) §§ 2-2(2)(f); 6-4; 6-7 (2011)). The court held that
since NMA had due process rights on appeal, it necessarily was
afforded those rights throughout the entirety of the proceeding:
Indeed, the appeal authority is required to ‗respect the
due process rights‘ of adversely affected parties, and it
cannot uphold those rights if the party was denied due
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6 For the most part, the statutory provisions in effect at the
relevant time do not differ in any material way from those now in
effect. Thus, unless otherwise noted, we cite to the current version of
the Utah Code for convenience. See N. Monticello All. LLC v. San Juan
Cnty., 2020 UT App 79, ¶ 4 n.5, 438 P.2d 537. In contrast, we cite
solely to the San Juan County Zoning Ordinance as amended in
2011.
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NORTHERN MONTICELLO ALLIANCE v. SAN JUAN COUNTY
Opinion of the Court
process in the pivotal initial stages of the proceeding.
Otherwise, the appeal authority will be reviewing a
proceeding in which the adversely affected party was
unable to present evidence or be properly heard—a
meaningless exercise.
Id. ¶ 13 (citation omitted). The court continued by saying that if there
were no right to participate below, ―any adversely affected or
aggrieved party could be muzzled at an initial hearing and barred
from presenting evidence to counter its opponent‘s evidence, and
then the appeal authority would be essentially powerless to overturn
the initial decision because there would be no contrary evidence in
the record.‖ Id.
¶10 The court of appeals also noted that the statutory scheme,
―when considered in conjunction with the county zoning ordinance
. . . clearly provide[d] protections to adjacent property owners who
are harmed by a CUP from the beginning,‖ which bolstered the
court‘s conclusion that NMA had a due process right to present
evidence. Id. ¶ 14. ―[A] scheme designed to protect and mitigate
injury to adversely affected or aggrieved adjacent landowners, but
does not give them the ability to properly present their evidence, is
no protection at all.‖ Id.
¶11 The court of appeals ultimately held that NMA was denied
due process when it was prevented from presenting evidence at the
revocation hearing and instructed the district court ―to remand the
case to the County Commission for it to take evidence from NMA as
previously mandated or, if it is not in a position to itself receive the
evidence, to in turn remand to the Planning Commission so that it
can do so.‖ Id. ¶ 19.
¶12 Judge Christiansen Forster concurred in the decision but on
different grounds. While she agreed with the majority that NMA had
a due process right to be heard and participate in the Planning
Commission‘s revocation hearing, she did not agree that CLUDMA
and the Zoning Ordinance gave rise to that right. Instead, she based
this right on the fact that the ―CUP imposed mitigation conditions on
sPower for the protection of NMA members‘ property as a condition
of approval,‖ which gave NMA ―a legitimate claim of entitlement in
the enforcement of‖ the mitigation required by the CUP. Id. ¶ 27
(Christiansen Forster, J., concurring) (footnote omitted). In Judge
Christiansen Forster‘s view, then, NMA had a protected property
interest in the county‘s enforcement of the mitigation required by the
CUP, which ultimately gave NMA ―the right to be heard and present
evidence at the revocation hearing.‖ Id. ¶ 28. But in her view, that
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right arose from the Planning Commission‘s specific approval of the
CUP, with the mitigation requirements, rather than from the statute
and Zoning Ordinance more generally. Id. ¶ 28.
¶13 We granted San Juan County and sPower‘s joint petition for
certiorari on the question of ―[w]hether the majority of the panel of
the Court of Appeals erred in concluding that [NMA] had a right to
present evidence to the San Juan County Planning Commission that
corresponded to a right to appeal that Commission‘s decision.‖7
III. THE PARTIES‘ ARGUMENTS
¶14 In their briefs before this court, the County and sPower
argue three alternative points for why the court of appeals‘ decision
should be reversed. First, they argue that the County Commission‘s
acceptance of evidence from NMA on appeal ―cured‖ any due
process error that occurred when the Planning Commission refused
to take evidence from anyone other than sPower. Alternatively, they
argue that NMA lacked a constitutional due process right to present
evidence in the revocation hearing because (1) a purely procedural
right to administrative review does not create a due process right
and (2) a due process right cannot attach to an enforcement action
that is left to a government entity‘s discretion, as was the case here.
Third, and also in the alternative, they argue that NMA lacked a
statutory or ordinance-based right to appeal the Planning
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7 This grant of certiorari referenced the court of appeals‘ majority
decision and reasoning. And in their opening brief to us, the County
and sPower limited their arguments to addressing the majority‘s
reasoning. In its response brief, NMA urged us to also consider the
issue raised by the concurrence in the court of appeals, see supra ¶ 12,
noting that we could affirm on this alternative ground. See, e.g.,
Collins v. Sandy Bd. of Adjustment, 2002 UT 77, ¶ 11, 52 P.3d 1267(―We may affirm the court of appeals‘ decision on any ground
supported in the record.‖); PC Riverview, LLC v. Xiao-Yan Cao, 2017
UT 52, ¶ 34, 424 P.3d 162 (―When a party raises alternative grounds
for affirmance, an appellate court may affirm the judgment appealed
from on any legal ground or theory apparent on the record.‖
(emphasis omitted) (citation omitted) (internal quotation marks
omitted)). The County and sPower responded to NMA‘s arguments
on this issue in their reply brief, and thus the issue is fully briefed
before us. We accordingly address it, and as explained below,
ultimately decline to affirm the court of appeals on this alternate
ground.
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NORTHERN MONTICELLO ALLIANCE v. SAN JUAN COUNTY
Opinion of the Court
Commission‘s decision under Utah Code section 17-27a-703(1) (2009)
and the San Juan Zoning Ordinance sections 2-2(2) and 6-7.
¶15 NMA, on the other hand, urges us to affirm the court of
appeals. It argues that, as an adversely affected party, it had a right
to appeal the Planning Commission‘s decision under both CLUDMA
and the relevant sections of the Zoning Ordinance. It also argues that
its members have a protectable property interest in the enforcement
of the CUP. In its view, both the statute and the Zoning Ordinance
afford its members due process rights as adjacent property owners.
Additionally, NMA argues that the placement of specific mitigation
conditions on the CUP grants it a protected interest, leading to a due
process right to participate in the revocation hearing. Finally, NMA
argues that the due process violation that occurred when it was not
allowed to participate in the revocation hearing was not cured by the
appeal to the County Commission because the County Commission
reviews the Planning Commission‘s decision on the record and
reverses only if the decision is ―arbitrary, capricious, or illegal.‖
SJCZO § 2-2(2)(e).
STANDARD OF REVIEW
¶16 ―On certiorari, ‗we review the decision of the court of
appeals and not that of the district court.‘ And ‗we review the
decision of the court of appeals for correctness.‘‖ Taylor v. Univ. of
Utah, 2020 UT 21, ¶ 12, 466 P.3d 124 (citation omitted).
ANALYSIS
¶17 While we agree with the court of appeals that NMA had a
right to appeal the Planning Commission‘s decision to the County
Commission, we hold that this right does not correspond to a right
to present evidence to the Planning Commission. Nothing in
CLUDMA or the Zoning Ordinance provide NMA with a right to
present evidence to the Planning Commission, and the right to
appeal is purely procedural, not a grant of substantive due process.
As we explain below, neither CLUDMA nor the Zoning Ordinance
create a protected interest in the enforcement of the CUP and the
right to present evidence to the Planning Commission. Nor are we
convinced that the placement of specific mitigating conditions on
sPower‘s permit gave NMA a protected interest in the enforcement
of the CUP or the right to participate in the revocation hearing. As
such, we reverse the decision of the court of appeals and remand the
case back to that court to address any remaining issues properly
raised before it.
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I. NMA HAD THE RIGHT TO APPEAL THE PLANNING
COMMISSION‘S DECISION TO THE COUNTY COMMISSION
¶18 We agree with the court of appeals that NMA had the right
to appeal to the County Commission.
¶19 At the relevant time, Utah Code section 17-27a-703(1) (2009)8
provided that, ―any person adversely affected by the land use
authority‘s decision administering or interpreting a land use
ordinance may . . . appeal that decision to the appeal authority by
alleging that there is error in any order, requirement, decision, or
determination made by the land use authority in the administration
or interpretation of the land use ordinance.‖ We agree with the court
of appeals, and sPower and the County do not dispute, that NMA is
adversely affected by the Planning Commission‘s decision.9 See N.
Monticello All. LLC v. San Juan Cnty., 2020 UT 79, ¶ 12, 468 P.3d 537.
¶20 The County and sPower argue that NMA did not have a
right to appeal the Planning Commission‘s decision not to revoke the
CUP to the County Commission under section 17-27a-703(1) because
the decision was not a decision ―administering or interpreting‖ a
land use ordinance. We disagree. The decision was administering the
section of the Zoning Ordinance regarding revocation of CUPs.
SJCZO § 6-10 (2011). So, NMA had a right to appeal the Planning
Commission‘s decision to the County Commission, which sat as the
appeal authority under Utah Code section 17-27a-701.
¶21 Even finding that NMA had a right to appeal to the County
Commission, we disagree with the court of appeals that this right to
appeal, coupled with the generic language requiring the County
Commission to ―respect the due process rights‖ of participants to the
appeal, means that NMA had a due process right to be heard by the
Planning Commission.
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8 The statute was amended slightly in 2020 and so we cite here to
the version that went in effect in 2009 and was current in 2015 when
NMA appealed the Planning Commission‘s decision to the County
Commission. Compare UTAH CODE § 17-27a-703(1) (current), with id. §
17-27a-703(1) (2009).
9 While NMA, a limited liability company comprised of
individual landowners, is not a ―person‖ in the colloquial sense, it
meets CLUDMA‘s definition of person: ―[A]n individual,
corporation, partnership, organization, association, trust,
governmental agency, or any other legal entity.‖ UTAH CODE § 17-
27a-103(51).
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NORTHERN MONTICELLO ALLIANCE v. SAN JUAN COUNTY
Opinion of the Court
II. NMA DID NOT HAVE A RIGHT TO PRESENT EVIDENCE IN
THE PLANNING COMMISSION‘S REVOCATION HEARING
A. Neither the Statute nor the Zoning Ordinance Provide Adjacent
Landowners or Adversely Affected Parties a Right to Participate in
Revocation Hearings
¶22 NMA argues that it had a statutory and ordinance-based
right to participate in the revocation hearing. Specifically, it finds
this right under CLUDMA and the San Juan County Zoning
Ordinance. For the reasons below, we disagree.
¶23 When interpreting statutes and ordinances, we begin by
looking at their plain language, which is ―the best evidence of
legislative intent.‖ Bryner v. Cardon Outreach, LLC, 2018 UT 52, ¶ 9,
428 P.3d 1096 (citation omitted). Our plain language analysis looks
both at the statutes and ordinances in question, as well as other
applicable provisions of law, seeking to read them all together in a
harmonious way. See Kamoe v. Ridge, 2021 UT 5, ¶¶ 15–16, 483 P.3d
720 (noting that we interpret statutes ―in harmony with other
statutes in the same chapter and related chapters‖ (citation omitted));
Murray City v. Hall, 663 P.2d 1314, 1317 (Utah 1983) (―Ordinances are
to be construed in the light of, and in harmony with, applicable
provisions of charter, state law, constitution, and public policy.‖
(citation omitted)). Additionally, ―an ordinance enacted pursuant to
a statute should be construed by reading it with the statute.‖ Murray
City, 663 P.2d at 1317 (citation omitted). Only if the plain language of
the statute or the ordinance is ambiguous do we look beyond the text
itself. See State v. Bess, 2019 UT 70, ¶ 25, 473 P.3d 157; cf. Bryner, 2018
UT 52, ¶¶ 9–10.
¶24 We thus analyze CLUDMA and the San Juan County
Zoning Ordinance together, looking first at their plain language, to
determine whether or not NMA had a participatory right in the
revocation hearing.
¶25 NMA has not pointed to, nor have we been able to find, any
statute or provision in the Zoning Ordinance explicitly giving it a
right to participate in the revocation hearing. In fact, the plain
language of CLUDMA and the Zoning Ordinance, when read
together, shows that only sPower as the permittee had a right to
participate in the revocation hearing.10
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10This does not mean that the Planning Commission cannot, or
should not, choose to allow other parties to participate in the
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¶26 The Zoning Ordinance requires the Planning Commission to
hold a hearing when considering revoking a CUP. SJCZO § 6-10
(2011). Notably, however, it does not require the Planning
Commission to hold a public hearing. A public hearing, under both
CLUDMA and the Zoning Ordinance, is a ―hearing at which
members of the public are provided a reasonable opportunity to
comment on the subject of the hearing.‖ UTAH CODE § 17-27a-
103(57); SJCZO § 1-5(77). The Zoning Ordinance provides explicitly
for a public hearing in multiple places. See SJCZO § 2-1(5)(a)(v)
(requiring the Planning Commission to hold public hearings on
contested land use applications and to allow all participants to be
heard); id. § 12-4(4) (requiring the County Commission to ―advertise
for and hold a public hearing to receive public input in order to
make an informed decision‖ on a proposed subzone designation); id.
§ 6-6 (giving the Planning Commission the option to hold a public
hearing on a CUP application if it is deemed ―necessary and in the
public interest‖).
¶27 In contrast, the section of the Zoning Ordinance regarding
revocation of the CUP states that ―no conditional use permit shall be
revoked until a hearing is held by the Planning Commission. The
permittee shall be notified in writing of such hearing. . . . At the
hearing, the permittee shall be given an opportunity to be heard. The
permittee may call witnesses and present evidence.‖ Id. § 6-10
(emphasis added). Clearly, this is not a public hearing, but rather a
hearing providing the holder of a CUP (the permittee) the
opportunity to be heard before their CUP is revoked. Nothing in the
Zoning Ordinance or CLUDMA refers at all to the rights of
adversely affected or aggrieved parties to participate in the
revocation hearing; in fact, no provision refers to any party other
than the permittee being allowed to participate. As such, no one
revocation hearing, or consider evidence from those challenging a
CUP. In fact, in some situations it may be arbitrary and capricious
for the Planning Commission to make a decision without considering
additional evidence other than that offered by the permittee. See
SJCZO § 2-2(2)(e) (2011) (―The Appeal Authority shall upon appeal,
presume that the decision applying the land use ordinance is valid
and determine only whether or not the decision is arbitrary,
capricious, or illegal.‖); UTAH CODE § 17-27a-801(3)(c)(i) (―A land use
decision is arbitrary and capricious if the land use decision is not
supported by substantial evidence in the record.‖). But that issue is
not before us, and thus, we decline to consider it.
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Opinion of the Court
other than the permittee is granted participatory rights in this
revocation hearing.
¶28 In analyzing the revocation section of the Zoning Ordinance,
we take the inclusion of the permittee‘s participatory rights and the
exclusion of any other participatory rights to be powerful evidence
that the Planning Commission is only required to extend
participatory rights to the permittee.
When examining the plain language [of an ordinance],
we must assume that each term included in the
ordinance was used advisedly. Additionally, statutory
construction presumes that the expression of one
should be interpreted as the exclusion of another. Thus,
we should give effect to any omission in the ordinance
language by presuming that the omission is
purposeful.
Carrier v. Salt Lake Cnty., 2004 UT 98, ¶ 30, 104 P.3d 1208, abrogated by
Outfront Media, LLC v. Salt Lake City Corp., 2017 UT 74, ¶ 30, 416 P.3d
389 (citation omitted) (internal quotation marks omitted).
¶29 Just as we read the omission of participatory rights in the
Zoning Ordinance as powerful evidence, so too is the omission of
participatory rights in CLUDMA. We ―presume that the language
chosen by the Legislature is meaningful,‖ and thus we ―will not infer
substantive terms into the text that are not already there. Rather, the
interpretation [of a statute] must be based on the language used, and
[we have] no power to rewrite the statute to conform to an intention
not expressed.‖ State v. Sanders, 2019 UT 25, ¶ 25, 445 P.3d 453(second alteration in original) (citation omitted). The legislature
knows how to grant participatory rights. See, e.g., UTAH CODE § 17-
27a-302(1)(e)(ii) (protecting the participatory rights of participants to
be heard in public hearings on contested CUP applications); id. § 73-
31-204(1)(b)–(3) (requiring the statutory water bank board to hold a
public meeting to receive comments from water users regarding any
application); id. § 53G-7-1203(4) (requiring that school community
council meetings be open to the public and prohibiting the council
from closing any portion of a meeting to the public). They have not
done so here.
B. NMA Does Not Have a Protectable Due Process Interest in the
Enforcement of the CUP or in Participation in the Revocation Hearing
¶30 NMA claims that it has a protectable due process interest in
the ―enforcement of the‖ CUP and ―in requiring the county to allow
[it] to fully participate in the revocation process.‖ The majority of the
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court of appeals held that these due process interests were granted
by CLUDMA and the San Juan County Zoning Ordinance. See N.
Monticello All. LLC v. San Juan Cnty., 2020 UT App 79, ¶ 10, 468 P.3d
537. The concurrence, on the other hand, found that these due
process interests were granted by the placement of specific
mitigating conditions on the CUP. Id. ¶ 27 (Christiansen Forster, J.,
concurring). NMA urges us to affirm the court of appeals‘ decision
on either, or both, grounds. But, for the reasons explained below, we
hold that neither CLUDMA nor the Zoning Ordinance grants NMA
these interests and thus do not entitle NMA to participate in the
Planning Commission‘s revocation hearing. And we are not
convinced that the specific mitigating conditions on the CUP grant
NMA this interest and thus decline to affirm on those alternative
grounds.
¶31 NMA claims a violation of its procedural due process
rights.11 Procedural due process claims are analyzed under a two-
part test: ―The first question is ‗whether the [complaining party] has
been deprived of a protected interest‘ in property or liberty. If the
court finds deprivation of a protected interest, we consider whether
the procedures at issue comply with due process.‖ Salt Lake City
Corp. v. Jordan River Restoration Network, 2012 UT 84, ¶ 48, 299 P.3d
990 (alteration in original) (quoting Am. Mfrs. Mut. Ins. Co. v.
Sullivan, 526 U.S. 40, 59 (1999)). Thus, our first question is whether
NMA has been deprived of a protected interest.
¶32 Property interests have been defined as ―legitimate claim[s]
of entitlement to some benefit.‖ Petersen v. Riverton City, 2010 UT 58,
¶ 21, 243 P.3d 1261 (internal quotation marks omitted) (quoting Hyde
Park Co. v. Santa Fe City Council, 226 F.3d 1207, 1210 (10th Cir. 2000)).
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11 Specifically, NMA cites to the due process clauses of both the
Utah Constitution and the U.S. Constitution. But we have recognized
that the guarantee of due process under the Utah Constitution is
―substantially the same as the due process guarantees contained in
the Fifth and Fourteenth amendments to the United States
Constitution,‖ In re Worthen, 926 P.2d 853, 876 (Utah 1996) (citing
Untermeyer v. State Tax Comm’n, 129 P.2d 881, 885 (Utah 1942)), and
NMA does not make any argument separately under the state
constitution. As such, we analyze the claims under the federal
constitution without a separate analysis of NMA‘s state
constitutional claims. See State v. Timmerman, 2009 UT 58, ¶ 25 n.5,
218 P.3d 590; State v. Davis, 972 P.2d 388, 392 (Utah 1998); State v.
Munguia, 2011 UT 5, ¶ 15 n.10, 253 P.3d 1082.
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NORTHERN MONTICELLO ALLIANCE v. SAN JUAN COUNTY
Opinion of the Court
―An abstract need for, or unilateral expectation of, a benefit does not
constitute ‗property.‘‖ Hyde Park, 226 F.3d at 1210. ―Rather, a
property interest exists only where ‗existing rules and
understandings that stem from an independent source such as state
law . . . secure certain benefits and [] support claims of entitlement to
those benefits.‘‖ Petersen, 2010 UT 58, ¶ 22 (alterations in original)
(quoting Hyde Park Co., 226 F.3d at 1210). As explained further
below, NMA does not have such an interest.
1. CLUDMA and the Zoning Ordinance Do Not Grant NMA a
Protected Interest for Purposes of the Due Process Clause
¶33 In the present case, we are reviewing the court of appeals‘
decision that CLUDMA and the Zoning Ordinance grant due process
rights to NMA. Namely, we are tasked with deciding whether the
protected interest and due process right NMA claims arise from the
statute and Zoning Ordinance. We have already explained that they
do not explicitly grant a right to participate in the revocation
hearing. See supra ¶¶ 21–28. But, there are some situations in which a
statute creates a protected liberty or property interest, which may
then lead to due process rights to be heard and participate in an
administrative proceeding. See, e.g., Hewitt v. Helms, 459 U.S. 460,
471–72 (1983); Bd. of Pardons v. Allen, 482 U.S. 369 (1987). Most
commonly, a state might create a protected interest by enacting a
statutory scheme that sets significant and substantive limits on
official discretion, such that the benefit in question becomes an
entitlement and not a unilateral expectation. See Kentucky Dep't of
Corr. v. Thompson, 490 U.S. 454, 461–62 (1989). The U.S. Supreme
Court has stated that ―the most common manner in which a State
creates a liberty interest is by establishing ‗substantive predicates‘ to
govern official decision-making, and, further, by mandating the
outcome to be reached upon a finding that the relevant criteria have
been met.‖ Id. at 461–62 (citation omitted). For example, in Hewitt,
the Court held that when a state went ―beyond simple procedural
guidelines‖ and instead ―used language of an unmistakably
mandatory character, requiring that certain procedures ‗shall,‘ ‗will,‘
or ‗must‘ be employed,‖ there was no escaping the ―conclusion that
the State has created a protected liberty interest.‖ 459 U.S. at 471–72.
¶34 But, in situations where government decisionmakers are
granted significant discretion as to whether or not to take an action
or award a benefit, courts decline to find a protected interest. See,
e.g., Jacobs, Visconsi & Jacobs Co. v. City of Lawrence, 927 F.2d 1111(10th Cir. 1991); Gagliardi v. Village of Pawling, 18 F.3d 188 (2d Cir.
1994); Meachum v. Fano, 427 U.S. 215 (1976); Connecticut Bd. of Pardons
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v. Dumschat, 452 U.S. 458 (1981). The U.S. Supreme Court has stated
that ―a benefit is not a protected entitlement if government officials
may grant or deny it in their discretion.‖ Town of Castle Rock v.
Gonzales, 545 U.S. 748, 756 (2005). The Second Circuit has explained
that ―[g]overnment officials . . . generally are given broad discretion
in their decisions whether to undertake enforcement actions‖ and
that ―[w]here a local regulator has discretion with regard to the
benefit at issue, there normally is no entitlement to that benefit. An
entitlement to a benefit arises only when the discretion of the issuing
agency is so narrowly circumscribed as to virtually assure conferral
of the benefit.‖ Gagliardi, 18 F.3d at 192 (citation omitted) (internal
quotation marks omitted). And recently, our court of appeals stated
that in a land use regulation case, ―the entitlement analysis focuses
on the degree of discretion given the decision maker.‖ Farley v. Utah
Cnty., 2019 UT App 45, ¶ 25, 440 P.3d 856 (citation omitted) (internal
quotation marks omitted). When a party holds only ―a unilateral
expectation‖ of a benefit or a favorable decision, such expectation is
―insufficient to establish a due process claim.‖ Id. ¶ 32.
¶35 The present case is more like these latter cases. The Zoning
Ordinance grants the Planning Commission broad discretion in
deciding whether or not to revoke or enforce a CUP, even if there
has been a failure to observe a condition or requirement. Section 6-10
states that a CUP ―shall be revocable by the Planning Commission at
any time due to failure of the permittee to observe any condition
specified or failure to observe other requirements of this Ordinance
in regard to the maintenance and improvements or conduct of the
use or business as approved.‖ SJCZO § 6-10. The Zoning Ordinance
requires the Planning Commission to hold a hearing before revoking
a permit, see infra ¶ 25, and after the hearing the Commission ―shall
determine whether the permit should be revoked.‖ SJCZO § 6-10.
This scheme is not one that requires the Planning Commission to
revoke, but one that allows them to. It places broad discretion in the
Planning Commission‘s hands—the Commission, faced with a
potential violation of a CUP, decides if it wants to potentially revoke,
at which point it holds a hearing. After the hearing, it decides
whether or not the permit should be revoked. There are no specific
criteria set up and there is no requirement that the Planning
Commission must revoke or, alternatively, enforce a permit at any
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NORTHERN MONTICELLO ALLIANCE v. SAN JUAN COUNTY
Opinion of the Court
time.12 In such a discretionary process, it cannot fairly be said that
the state has created a protected interest.
¶36 Nor does NMA‘s procedural right to appeal create a
protected interest for purposes of the due process clause. The
majority of the court of appeals found that NMA had a due process
right to participate in the revocation hearing that corresponded to its
right to appeal. In their view, the due process right was implied from
the sections of CLUDMA and the Zoning Ordinance granting NMA,
as an adversely affected party, the right to appeal. 2020 UT App 79,
¶¶ 10–15. This was in error. Neither the statute nor the Zoning
Ordinance grants NMA a protected interest in participating in the
revocation proceeding or having the County revoke or enforce the
CUP because purely procedural rights do not, by themselves, create
constitutionally protected property interests.
¶37 A state does not ―create a property right merely by
ordaining beneficial procedure unconnected to some articulable
substantive guarantee.‖ Castle Rock, 545 U.S. at 771 (Souter, J.,
concurring). As Justice Souter explained in Castle Rock, a claim to ―a
property interest in a state-mandated process in and of itself . . . is at
odds with the rule that ‗[p]rocess is not an end in itself. Its
constitutional purpose is to protect a substantive interest to which
the individual has a legitimate claim of entitlement.‘‖ Id. (alteration
in original) (citation omitted). ―[I]n every instance of property
recognized by [the Supreme] Court as calling for federal procedural
protection, the property has been distinguishable from the
procedural obligations imposed on state officials to protect it.‖ Id. at
772. While adversely affected parties are given the opportunity to
appeal the Planning Commission‘s decisions, this procedural
opportunity is just that: procedural. It ―does not give rise to an
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12 Of course, there may be some instances where the Planning
Commission‘s decision not to revoke or enforce a CUP is ―arbitrary,
capricious, or illegal.‖ CLUDMA and the Zoning Ordinance allow
those affected by Planning Commission‘s decisions to appeal to the
County Commission and to try and make the case that the Planning
Commission‘s decision was arbitrary, capricious, or illegal. See supra
¶ 18; SJCZO § 2-2; UTAH CODE § 17-27a-703(1). For instance, they
might argue that it was arbitrary and capricious not to revoke a CUP
that clearly violated conditions. We do not address those issues here
because they are not before us, but we note this possibility to make
clear that the Planning Commission does not have absolute power,
even with its broad grant of discretion.
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independent interest protected by the fourteenth amendment.‖ Fusco
v. Connecticut, 815 F.2d 201, 205–06 (2d Cir. 1987) (holding that the
appellate right of landowners and aggrieved persons to appeal
planning and zoning commission decisions was ―purely procedural‖
and did not give rise to an independent protected interest for
purposes of the due process clause).
¶38 NMA also argues that CLUDMA and the Zoning Ordinance
give it a right to participate in the revocation hearing because there
are provisions requiring the County Commission to ―respect the due
process rights of each of the participants‖ upon appeal. UTAH CODE
§ 17-27a-706(2); SJCZO § 2-2(2)(f). But this is not a creation of due
process rights; rather, this tasks the County Commission to respect
already existing due process rights, where applicable, without
creating new ones. For due process to attach, there must be a
protectable interest. See supra ¶¶ 29–30. And for the reasons
explained above, CLUDMA and the Zoning Ordinance do not grant
NMA the protectable interests that it claims.
2. We Decline to Affirm on the Alternative Ground that the
Placement of Specific Mitigating Conditions on the CUP Gave NMA
a Protected Interest for Purposes of the Due Process Clause
¶39 Lastly, NMA argues that the placement of specific
mitigating conditions on sPower‘s permit, aimed in part at
protecting NMA members‘ property, gave NMA a legitimate claim
of entitlement in the enforcement of the CUP and the right to
participate in the revocation hearing. The majority of the court of
appeals did not address this argument; instead, this argument was
the basis for Judge Christiansen Forster‘s concurrence. See N.
Monticello All., 2020 UT App 79, ¶ 27 (Christiansen Forster, J.,
concurring). NMA urges that we may affirm the decision of the court
of appeals upon this alternative ground. See, e.g., Collins v. Sandy Bd.
of Adjustment, 2002 UT 77, ¶ 11, 52 P.3d 1267 (―We may affirm the
court of appeals‘ decision on any ground supported in the record.‖);
Scott v. Scott, 2020 UT 54, ¶ 30, 472 P.3d 897 (noting that ―[a]s an
appellee,‖ a party ―had the prerogative of identifying alternative
grounds for affirmance‖). We decline to do so.
¶40 This is a more difficult question than whether CLUDMA
and the Zoning Ordinance give rise to a protected interest. The
addition of mitigating conditions on a CUP, specifically intended to
protect certain property owners, may in some cases provide
landowners with something more than just a ―unilateral
expectation‖ of a benefit. See supra ¶¶ 30–31. But we are simply not
convinced that that is the case here. As noted, the Planning
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NORTHERN MONTICELLO ALLIANCE v. SAN JUAN COUNTY
Opinion of the Court
Commission is given a great deal of discretion in deciding whether
or not to even hold the initial hearing necessary to revoke a CUP,
and after said hearing, the Planning Commission has additional
discretion in deciding whether or not to revoke. See supra ¶¶ 33–34.
Faced with such a discretionary scheme, NMA has not convinced us
that a protected property interest arises from the placement of the
specific conditions on the CUP. In other words, NMA has not met its
burden to show that its expectation of enforcement of the CUP and
participation in the revocation hearing goes beyond a ―unilateral
expectation‖ to such benefits and is instead a ―legitimate claim of
entitlement.‖13 We thus decline to affirm the decision of the court of
appeals on this alternative ground.14
CONCLUSION
¶41 The court of appeals erred when it held that NMA had a
due process right to participate in the revocation hearing granted by
_____________________________________________________________
13 We do not categorically foreclose the possibility that a
protected interest may arise from conditions placed on a CUP. We
simply do not find that to be the case here.
14 Our opinion does not necessarily leave NMA without a
remedy. NMA may have a cause of action under CLUDMA‘s
enforcement provision, which allows adversely affected parties to
―institute: (i) injunctions, mandamus, abatement, or any other
appropriate actions; or (ii) proceedings to prevent, enjoin, abate, or
remove [an] unlawful building, use, or act.‖ UTAH CODE § 17-27a-
802(1)(a); see also Culbertson v. Bd. of Cnty. Comm’rs of Salt Lake Cnty.,
2001 UT 108, ¶¶ 27–31, 44 P.3d 642 (interpreting a prior version of
CLUDMA‘s enforcement provision to allow plaintiffs to bring an
action in district court to enforce compliance with a CUP), overruled
on other grounds by Madsen v. JP Morgan Chase Bank, N.A., 2012 UT 51,
296 P.3d 671. Additionally, Utah Code section 78B-6-1101 grants
NMA‘s members a cause of action to sue sPower for interference
with their use and enjoyment of their property under a claim of
private nuisance. See Whaley v. Park City Mun. Corp., 2008 UT App
234, ¶ 23, 190 P.3d 1 (holding that authorization from a municipality
does not defeat a private nuisance claim). Lastly, NMA had the right
to appeal the Planning Commission‘s decision not to revoke the
CUP, see supra ¶¶ 18–19, and could argue to the County Commission
either that its exclusion from the hearing was arbitrary and
capricious or that the Planning Commission‘s decision not to revoke
was arbitrary and capricious in light of the alleged violations. See
SJCZO § 2-2(2)(e).
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CLUDMA and the San Juan County Zoning Ordinance. We reverse
its decision and remand the case to the court of appeals for further
consideration of any remaining issues properly raised before it.
19