Hatch v. Kane County Board of Adjustment

2013 UT App 119_________________________________________________________
THE UTAH COURT OF APPEALS
HOWARD HATCH,
Plaintiff and Appellant,
v.
KANE COUNTY BOARD OF ADJUSTMENT AND KANE COUNTY,
Defendants and Appellees.
Memorandum Decision
No. 20110199‐CA
Filed May 9, 2013
Sixth District, Kanab Department
The Honorable Wallace A. Lee
No. 090600058
Howard Hatch, Appellant Pro Se
Jim R. Scarth and Kent A. Burggraaf, Attorneys for
Appellees
JUDGE STEPHEN L. ROTH authored this Memorandum Decision, in
which JUDGES JAMES Z. DAVIS and WILLIAM A. THORNE JR.
concurred.
ROTH, Judge:
¶1 Petitioner Howard Hatch appeals the district court’s grant
of summary judgment to Defendants Kane County (the County)
and the Kane County Board of Adjustment (the Board). In granting
summary judgment, the court declined to disturb the Board’s
decision to deny Mr. Hatch’s application for a building permit on
the basis that the property on which Mr. Hatch intended to build
had been improperly subdivided. We similarly decline to disturb
the Board’s decision.
¶2 Mr. Hatch applied to the County for a permit to build a
structure on a 40‐acre parcel of land that is part of a larger property
Hatch v. Kane County Board of Adjustment
known as the Stevens Canyon Estates. The County denied Mr.
Hatch’s application on the basis that the Stevens Canyon Estates
property, and in particular the 40‐acre parcel, had been improperly
subdivided. Mr. Hatch appealed the County’s decision to the
Board, but the Board agreed with the County that the property had
been improperly subdivided. Mr. Hatch petitioned for judicial
review of the Board’s decision in the district court. The court
granted summary judgment to the County, concluding that the
Board’s decision was not arbitrary, capricious, or illegal. Mr. Hatch
now appeals, challenging the Board’s decision to deny his
application for a building permit as well as certain other issues that
arose in the district court proceeding. We first address Mr. Hatch’s
challenge to the Board’s decision to deny his application for a
building permit. We then address the other issues Mr. Hatch raises
on appeal.
I. Denial of Mr. Hatch’s Application for a Building Permit
¶3 Although this appeal comes to us from the district court’s
review of the Board’s decision, “we review the Board’s decision as
if the appeal had come [to us] directly.” Patterson v. Utah Cnty. Bd.
of Adjustment, 893 P.2d 602, 603 (Utah Ct. App. 1995). In reviewing
the Board’s decision, we “determine only whether or not the
decision . . . is arbitrary, capricious, or illegal.” See Utah Code Ann.
§ 17‐27a‐801(3)(a) (LexisNexis 2009); see also Patterson, 893 P.2d at
603–04. “[T]he Board’s decision can only be considered arbitrary or
capricious if not supported by substantial evidence,” which is “that
quantum and quality of relevant evidence that is adequate to
convince a reasonable mind to support a conclusion.” Patterson, 893
P.2d at 604 & n.6 (citation and internal quotation marks omitted).
In contrast, whether the Board’s decision is illegal depends upon
proper interpretation and application of the law. Id. at 604.
¶4 Mr. Hatch challenges the Board’s denial of his application
for a building permit, asserting that he properly subdivided the
Stevens Canyon Estates property in approximately 1972 under the
20110199‐CA 2 2013 UT App 119Hatch v. Kane County Board of Adjustment
subdivision ordinance that was in effect at that time.1According to
Mr. Hatch, that version of the ordinance permitted agricultural
property to be subdivided into lots of 10 or more acres without
being subject to the County’s subdivision requirements.2 In
1
Mr. Hatch does not specify whether he is challenging the
Board’s decision on the basis that it is arbitrary and capricious
because it is not supported by substantial evidence or on the
basis that it is illegal. On the one hand, he argues that the Board
misapplied the law and erroneously concluded that his property
had been improperly subdivided. On the other hand, Mr. Hatch
also argues that in denying his application for a building permit,
the Board “effectively excluded” certain evidence upon which he
had relied. Based on our review of the record, it does not appear
that any of this evidence was actually excluded. Rather, the
Board simply did not give that evidence the weight Mr. Hatch
thought it deserved. We therefore construe Mr. Hatch’s argu‐
ment to be that the Board should have given more weight to the
evidence he relied upon, meaning that he is essentially making a
substantial evidence argument.
2
The subdivision ordinance in effect in 1972 provides,
Subdivision shall mean the division of a tract, or lot
or parcel of land into three or more lots, plots, sites
or other divisions or land for the purpose, whether
immediate or future, of sale or of building develop‐
ment or redevelopment, provided, however, that
divisions of land for agricultural purposes . . . shall
be exempt.
That ordinance further provides, “A division of land for agricul‐
tural purposes shall mean a division of a parcel into three or
more lots, none of which is smaller than ten acres.” The ordi‐
nance then sets forth the procedure for subdividing property:
“Before dividing any tract of land into three or more lots of ten
acres or less in size, a subdivider shall,” among other require‐
(continued...)
20110199‐CA 3 2013 UT App 119Hatch v. Kane County Board of Adjustment
contrast, the parties do not dispute that the Stevens Canyon Estates
property would be subject to the County’s current subdivision
requirements were it subdivided today.3 As evidence that he
subdivided the Stevens Canyon Estates property under the 1972
ordinance, Mr. Hatch provided a letter written in December 1972
by Tex R. Olsen, who was the County Attorney at that time.4 In that
letter, Olsen wrote,
[The County] ha[s] adopted a [s]ubdivision
[o]rdinance which requires subdivision plats to be
approved by the County . . . if three or more lots are
subdivided for development or sale. The ordinance
specifically exempts property held for agricultural
purposes.
The ordinance under discussion also states, “A
subdivision of land for agricultural purposes shall
mean a division or a parcel into three or more lots,
none of which is smaller than ten acres.” It has been
the interpretation of [the County] that property
divided into parcels of ten acres or more are not
subject to the subdivision requirements and not
regulated under the . . . [s]ubdivision [o]rdinance.
2
(...continued)
ments, submit a preliminary plat and a final plat to the County
for review and approval and record the final plat with the
County.
3
In particular, to comply with the current ordinance, the
parcels would have to be at least 35 acres in size.
4
This letter was written to the Real Estate Division of
Utah. According to Mr. Hatch, it was written for the purpose of
allowing him to obtain permission to sell the subdivided parcels
to the public.
20110199‐CA 4 2013 UT App 119Hatch v. Kane County Board of Adjustment
The Stevens Canyon Estates property has been
divided into parcels of 10 acres or more and therefore
is not subject to regulations by the County . . . .
Mr. Hatch explains that although the subdivision of the Stevens
Canyon Estates property would not comply with the current
subdivision ordinance, he properly subdivided the property in
1972 under the ordinance then in effect, thus grandfathering in the
subdivided lots. He therefore asserts that the Board’s decision to
deny his application for a building permit on the basis that the
property had been improperly subdivided is arbitrary, capricious,
and illegal.
¶5 There are some significant unresolved problems, however,
that call into question the conclusion that the Stevens Canyon
Estates property was properly subdivided in 1972 under the
ordinance in effect at that time. First, Mr. Hatch and the County
dispute the extent of oversight and control the County could
exercise over Mr. Hatch’s efforts to subdivide the Stevens Canyon
Estates property in 1972. According to the County, in subdividing
the property under the subdivision ordinance in effect in 1972, Mr.
Hatch was required to obtain review and approval of the
subdivision by the County and was also required to record a plat
map of the subdivision with the County. The County thus
emphasizes that there is no evidence that the subdivision was ever
reviewed or approved by the County,5 and Mr. Hatch never
recorded with the County a plat map showing how he purportedly
subdivided the property in 1972. Indeed, the subdivision scheme
is reflected only in a preliminary plat map that is in Mr. Hatch’s
5
Mr. Hatch relies on a minute entry from a planning
commission meeting in 1972 as evidence that the County
reviewed the proposed subdivision of the Stevens Canyon
Estates property. However, that minute entry refers to a separate
property, called the North Fork Estates, and not the Stevens
Canyon Estates.
20110199‐CA 5 2013 UT App 119Hatch v. Kane County Board of Adjustment
possession and was also never recorded. The first time the County
saw this preliminary plat map was when Mr. Hatch applied for the
building permit at issue in this case and again when the hearing
was held before the Board to review the County’s denial of his
building permit application. Mr. Hatch has pointed out, however,
that Olsen states in his letter that subdivision of agricultural
property into lots of 10 or more acres was not subject to regulation
by the County under the subdivision ordinance in effect at that
time. Mr. Hatch therefore takes the position that he could
subdivide the property under the 1972 ordinance without any
oversight from the County, so long as his subdivision complied
with the requirements of that ordinance, i.e., a division into parcels
of 10 or more acres.
¶6 Second, it is disputed whether the 1972 ordinance applied
only to property that was zoned as agricultural or to property that,
while not zoned agricultural, had agriculture as a permitted use.
The Stevens Canyon Estates property was not then and is not now
zoned as agricultural; rather, it is zoned as forest/recreational. But
in 1972, “agricultural” was a permitted use of property zoned as
forest/recreational. Thus, depending on whether the 1972 ordinance
applies to property that is zoned as agricultural or property that
could permissibly be used for agricultural purposes, the Stevens
Canyon Estates property may not have been eligible for
subdivision under the 1972 ordinance.6
6
Mr. Hatch asserts that the Stevens Canyon Estates
property was eligible for subdivision under the 1972 ordinance.
Mr. Hatch points out that, in the letter, Olsen quoted the 1972
ordinance and explained that it applied to land held for
“agricultural purposes.” See supra ¶ 4. And Mr. Hatch also points
out that at the time he purportedly subdivided the Stevens
Canyon Estates property under the 1972 ordinance, using
property for “agricultural purposes” was a permitted use of
property zoned as forest/recreational, as was the Stevens Canyon
(continued...)
20110199‐CA 6 2013 UT App 119Hatch v. Kane County Board of Adjustment
¶7 And third, some of the parcels of the Stevens Canyon Estates
property, as it was purportedly subdivided by Mr. Hatch in 1972,
as shown on his preliminary plat map, are less than 10 acres in size.
Indeed, the County identified as many as 10 parcels on Mr. Hatch’s
plat that were less than the requisite 10 acres. Thus, that
subdivision scheme would not have complied with the 1972
ordinance, which requires that the subdivided parcels be 10 or
more acres.
¶8 Rather than resolving these issues, however, we assume for
purposes of our analysis that the subdivision of the Stevens
Canyon Estates property in 1972 was valid as depicted on Mr.
Hatch’s preliminary plat map. We nevertheless conclude that the
Board’s decision to deny Mr. Hatch’s application for a building
permit is not arbitrary, capricious, or illegal.
¶9 It is undisputed that the 40‐acre parcel does not exist as a
platted lot on Mr. Hatch’s preliminary plat map of the Stevens
Canyon Estates, the property that was the subject of Olsen’s letter.
The County has emphasized that the 40‐acre parcel was not
identified as a lot in either the preliminary plat map in Mr. Hatch’s
6
(...continued)
Estates property. Indeed, the ordinance itself uses the phrase
“agricultural purposes,” defining that phrase as “a division of a
parcel into three or more lots, none of which is smaller than ten
acres.”
The County, however, takes the position that this
ordinance was only applicable to property actually zoned as
agricultural. If this is the case, it is puzzling why Olsen would
represent that the Stevens Canyon Estates property could be
properly subdivided under the 1972 ordinance, despite it being
zoned as forest/recreational rather than agricultural. The County
suggests, however, that Olsen may have confused the Stevens
Canyon Estates property with another property Mr. Hatch was
simultaneously subdividing, which was zoned as agricultural.
20110199‐CA 7 2013 UT App 119Hatch v. Kane County Board of Adjustment
possession or the plat map the County had on record. Indeed, Mr.
Hatch admits that the 40‐acre parcel “doesn’t conform with the
original idea of how the lots would be split off” as reflected by his
preliminary plat map. Instead, he explained that “[he] arbitrarily
took a 40 acre piece” and “parceled that off,” either by combining
existing lots or completely redrawing boundary lines. And it is also
undisputed that Mr. Hatch did not seek the County’s approval in
creating the 40‐acre parcel.
¶10 Mr. Hatch does not view these facts as problematic,
however. Rather, he relies on the concept of nonconformity7 to
7
More precisely, Mr. Hatch argues that the subdivision of
the Stevens Canyon Estates property has been grandfathered in,
relying on the concept of nonconformity, and in particular
analogizes nonconforming lots to nonconforming uses. In
arguing for the applicability of the legal concept of
nonconforming use to the question of the validity of subdivided
lots, Mr. Hatch originally explained to the Board, through his
attorney, that “[p]reexisting nonconforming uses have been
abundantly addressed in Utah” but “preexisting nonconforming
lots have not been addressed in Utah.” Mr. Hatch explained that
nonconforming lots “have been addressed in many other states”
but the “issue . . . hasn’t come before the courts in Utah.”
According to Mr. Hatch, “[e]very court that addresses . . .
preexisting nonconforming lots treats them the same as
preexisting nonconforming uses.” However, no specific
authority on nonconforming lots was presented to the Board.
Rather, Mr. Hatch relied only on the statutory definition of
nonconforming uses and the County’s ordinance on
nonconforming uses. See Utah Code Ann. § 17‐27a‐103(36)
(LexisNexis Supp. 2012) (defining nonconforming use).
On appeal, Mr. Hatch continues to rely on the concept of
nonconformity in arguing the validity of the 40‐acre lot, though
as a pro se appellant he does so without presenting any of the
(continued...)
20110199‐CA 8 2013 UT App 119Hatch v. Kane County Board of Adjustment
assert that the 1972 ordinance continues to exempt the Stevens
Canyon Estates property from any regulation by the County,
allowing him to perpetually reconfigure and redraw the
subdivided parcels without any official oversight or approval by
the County so long as the newly‐created parcels are 10 acres or
greater, as provided in the 1972 ordinance. These arguments,
however, misperceive how the concept of nonconformity applies
to the issue at hand.
¶11 Generally, a nonconforming use is “a use of land that”
“legally existed before its current land use designation,” “has been
maintained continuously since the time the land use ordinance
regulation governing the land changed,” and, “because of one or
more subsequent land use ordinance changes, does not conform to
the regulations that now govern the use of the land.” Utah Code
Ann. § 17‐27a‐103(36) (LexisNexis Supp. 2012); see also Black’s Law
Dictionary 1682 (9th ed. 2009) (defining “nonconforming use” as a
“[l]and use that is impermissible under current zoning restrictions
but that is allowed because the use existed lawfully before the
restrictions took effect”).8 Based on this definition, in order for a
7
(...continued)
authority referred to by his attorney at the hearing before the
Board. We accept for purposes of appeal that the general
principles of nonconforming use apply to a nonconforming
subdivision or nonconforming lots, but because of the way we
resolve this appeal, we do not decide that issue.
8
The County’s own nonconforming use ordinance
provides,
The nonconforming use of land, existing at the
time [the current ordinance] became effective, may
be continued, provided that no such
nonconforming use of land shall in any way be
expanded or extended either on the same or on
adjoining land, or any portion thereof, is
(continued...)
20110199‐CA 9 2013 UT App 119Hatch v. Kane County Board of Adjustment
nonconforming use to retain its lawful character once the
applicable law changes, it must continue in essentially the same
form as when it began. Thus, a change to or abandonment of a
nonconforming use may result in the property becoming subject to
the version of the law currently in effect. See, e.g., Harris v.
Springville City, 712 P.2d 188, 188–89 (Utah 1984) (concluding that
a nonconforming use was expanded in violation of the current
ordinance where the nature of the business changed from
manufacturing burial vaults and septic tanks to making ice);
Carlsen v. Board of Adjustment, 2012 UT App 260, ¶¶ 13–19, 287 P.3d
440 (concluding that the nonconforming use of keeping animals on
the subject property was sufficiently maintained and, therefore,
could continue despite a change in the applicable ordinance); Vial
v. Provo City, 2009 UT App 122, ¶ 24, 210 P.3d 947 (reasoning that
because a basement apartment allowed as a nonconforming use
was not continuously maintained, the property was subject to the
current ordinance, which did not permit such use). And, thus,
assuming the applicability of nonconforming use principles to
nonconforming lots as Mr. Hatch does here, see generally Black’s Law
Dictionary 1032 (9th ed. 2009) (defining a “nonconforming lot” as
“[a] previously lawful lot that now violates an amended or newly
adopted zoning ordinance”), a subdivision otherwise lawfully
created may continue to exist in its original form but a material
change in lot configuration may invoke the differing restrictions of
the current ordinance.
¶12 Assuming the legality of the subdivision of the Stevens
Canyon Estates property that Mr. Hatch created under the 1972
ordinance, as reflected by his preliminary plat map, it is the lots
identified in the subdivision at that time that fall under the ongoing
8
(...continued)
abandoned for a period of one year or more, any
future use of such land shall be in conformity with
the provisions of [the ordinance currently in effect],
unless such use is approved for nonconforming use
by [the County].
20110199‐CA 10 2013 UT App 119Hatch v. Kane County Board of Adjustment
protection of the principle of nonconformity, not the process of
subdivision that initially resulted in their creation. Rather, the
process of subdivision that was used to create the nonconforming
lots is relevant only to determine whether those lots were, in fact,
lawfully created at the time they were created. That those lots
remain legal now, even though they could not be created under
current law in the same way they were under the prior law, does
not mean that the property can be divided into new lots
indefinitely, irrespective of current ordinances. Instead, division of
the property into new lot configurations subsequent to the original
creation of the subdivision would be subject to whatever ordinance
was in effect at the time of the proposed change, as would the
creation of a new and materially different lot within the
subdivision boundaries.
¶13 The 40‐acre parcel at issue was not created during the
original subdivision of the Stevens Canyon Estates property into
lots of about 10 acres or less; rather, it is a newly created lot within
the boundaries of the original subdivision. As a consequence, the
creation of the new, much larger lot and the resulting internal
reconfiguration of the subdivision does not fall within whatever
grandfathered status the subdivision may have had up to that
point, but is subject to the current ordinance governing the
subdivision of such property. There is no dispute that Mr. Hatch
has not yet complied with the ordinance currently in force.
Accordingly, we conclude that the Board’s decision to deny Mr.
Hatch’s application for a building permit on the basis that the 40‐
acre parcel was improperly subdivided is not arbitrary, capricious,
or illegal.
II. Other Issues Raised on Appeal
¶14 In addition to challenging the Board’s decision to deny his
application for a building permit, Mr. Hatch takes issue with
certain aspects of the proceedings before both the Board and the
district court. We limit our analysis, however, to issues Mr. Hatch
has specifically identified in his brief as challenged on appeal and
20110199‐CA 11 2013 UT App 119Hatch v. Kane County Board of Adjustment
do not address other issues that he simply raises in the course of
setting out his arguments. See generally Utah R. App. P. 24(a)(5)
(requiring that the appellant include in the brief a “statement of the
issues presented for review”).
¶15 First, Mr. Hatch challenges the reliability of the transcript of
the hearing held before the Board. He points out that there are
numerous places throughout the hearing where the transcript only
reads, “Inaudible.” But Mr. Hatch has not identified any
information that was omitted from the transcript to his detriment,
nor has he identified any error caused by these omissions in the
transcript. Rather, all the information that he relies upon appears
to be available in the record. See generally Utah Code Ann. § 17‐27a‐
801(7) (LexisNexis 2009) (providing that the county appeal
authority “shall transmit to the reviewing court the record of its
proceedings,” which may include “a true and correct transcript” of
any tape‐recorded proceeding).
¶16 Mr. Hatch also argues that certain evidence that he relied
upon was “effectively excluded.” See supra ¶ 4 n. 1. Reading this
argument in conjunction with his challenge to the reliability of the
transcript, Mr. Hatch appears to be making a broader argument
that the district court should have conducted an evidentiary
hearing to “clarify” the issues raised by Mr. Hatch. However,
judicial review of the Board’s decision “is limited to the record” of
the proceedings that were held before the Board. Id. § 17‐27a‐
801(8)(a)(i); see also id. § 17‐27a‐801(7) (providing that the Board
“shall transmit to the reviewing court the record of its proceedings,
including its minutes, findings, orders and, if available, a true and
correct transcript of its proceedings”). In conducting a judicial
review of the Board’s decision, “[t]he court may not accept or
consider any evidence outside the record . . . unless that evidence
was offered . . . and the court determines that it was improperly
excluded.” Id. § 17‐27a‐801(8)(a)(ii). For these reasons, the district
court declined to hold an evidentiary hearing, and Mr. Hatch has
not challenged the basis for that decision. More importantly, he has
not shown that any evidence he offered to the Board was actually
20110199‐CA 12 2013 UT App 119Hatch v. Kane County Board of Adjustment
excluded.9 Therefore, the district court did not err in declining to
admit new evidence.
¶17 Second, Mr. Hatch challenges the district court’s decision to
grant summary judgment on a regulatory takings claim he raised
in his complaint in addition to his petition for judicial review of the
Board’s decision.10 But, although Mr. Hatch clearly takes issue with
the fact that the district court granted summary judgment on the
regulatory takings claim, he does not identify any error in the
court’s decision. Indeed, he seems to concede that after disposing
of his petition for review as it did, the district court’s rejection of
his regulatory takings claim was inevitable. Because Mr. Hatch
does not identify a specific error in the court’s decision to grant
summary judgment on the regulatory takings claim, our review
can proceed no further. See generally Allen v. Friel, 2008 UT 56, ¶ 7,
194 P.3d 903 (“If an appellant fails to allege specific errors of the
lower court, the appellate court will not seek out errors in the lower
court’s decision.”).
¶18 Third, Mr. Hatch challenges the legitimacy of the Board’s
written findings and conclusions.11 He argues that the County
improperly authored findings and conclusions for the Board after
it had rendered its final decision at the hearing and after Mr. Hatch
had petitioned for judicial review of the Board’s decision in the
district court. He perceives that these findings and conclusions
9
Indeed, much of the evidence that Mr. Hatch presented
to the district court in requesting an evidentiary hearing was
evidence that he did not offer to the Board.
10
The regulatory takings claim was bifurcated from Mr.
Hatch’s petition to review the Board’s decision, and the court
granted summary judgment to the County on that claim after
disposing of Mr. Hatch’s petition for review.
11
In the district court, Mr. Hatch filed a motion to strike
the Board’s written decision, which the district court denied.
20110199‐CA 13 2013 UT App 119Hatch v. Kane County Board of Adjustment
reflect the County’s own reasoning for the decision rather than that
of the Board and were crafted for the purpose of legitimizing the
Board’s decision in the County’s favor after that decision was
appealed. However, these arguments seem to be based on a
misunderstanding of the process of drafting the findings and
conclusions that are incorporated into a document that ultimately
is entered as the Board’s final decision.
¶19 The Utah Code provides that the Board’s decision “takes
effect on the date when [it] issues a written decision.” Utah Code
Ann. § 17‐27a‐708(1) (LexisNexis 2009). That “written decision . . .
constitutes a final decision.” Id. § 17‐27a‐708(2). And “[a]ny person
adversely affected by [that] final decision” “may file a petition for
review of the decision with the district court within 30 days after
the . . . decision is final,” i.e., after a written decision is issued. Id.
§ 17‐27a‐801(2)(a).
¶20 In challenging the legitimacy of the findings and conclusions
that constitute the Board’s final decision, Mr. Hatch asserts that at
the hearing the Board represented that it would not make any
findings. However, as we have explained, the Board has a statutory
duty to issue a written decision because the written decision
constitutes the final decision that triggers the 30‐day appeal period.
See id. §§ 17‐27a‐708, ‐801(2)(a). Thus, in light of this statutory
authority, the Board’s statement is perhaps better interpreted as
expressing its intent not to make oral findings on the record at that
time and not a statement that it would make no findings at all, in
abrogation of its statutory duty.12
12
Notably, this is one of the places in the transcript where
some of the statements are inaudible. Specifically, according to
the transcript, Mr. Hatch’s attorney at the time asked, “Did the
Board have any specific findings in regards to its (inaudible)
findings with regard to the (inaudible).” And the unattributed
response is simply, “(Inaudible.).” We will assume for the sake
of argument that the Board’s response was simply, as Mr. Hatch
(continued...)
20110199‐CA 14 2013 UT App 119Hatch v. Kane County Board of Adjustment
¶21 Mr. Hatch also treats the fact that the written findings and
conclusions were not entered until after he had petitioned for
judicial review in the district court as evidence of some sort of
impropriety. Indeed, the hearing before the Board was held on
April 9, 2009; Mr. Hatch filed his petition for judicial review on
April 24, 2009; and the Board’s written findings and conclusions
were not entered until May 15, 2009. But that simple sequence of
events does not establish, as Mr. Hatch suggests, that the County
and the Board colluded to draft and issue written findings and
conclusions only to legitimize a flawed decision in response to his
appeal. Rather, Mr. Hatch appealed the Board’s decision before it
was final, i.e., before the Board had issued its written decision. See
id. §§ 17‐27a‐708, ‐801(2)(a). So what Mr. Hatch perceives as suspect
timing for the issuance of the written findings and conclusions
more reasonably appears to be a result of his seeking review of the
Board’s determination before it was made final by the entry of the
final written decision required by statute.
¶22 Mr. Hatch also takes issue with the fact that the County
drafted the findings and conclusions for the Board. It is not
uncommon, however, for a party (usually the prevailing party) to
draft a written decision. That decision is then subject to review by
the opposing party and acceptance or modification by the decision‐
making body before it is made final. Cf. Utah R. Civ. P. 7(f)(2)
(“Unless the court approves the proposed order submitted with an
initial memorandum, or unless otherwise directed by the court, the
prevailing party shall . . . serve upon the other parties a proposed
12
(...continued)
asserts, “No.” But we also do not think it reasonable to read into
that response an intention by the Board to abrogate its statutory
duty to issue a written decision. Even if that were the intention,
the fact that the Board thereafter fulfilled that duty is not error,
but correction of error, and Mr. Hatch has provided no authority
that simply stops the clock at that original negative response.
20110199‐CA 15 2013 UT App 119Hatch v. Kane County Board of Adjustment
order in conformity with the court’s decision.”). Here, the County
Attorney drafted the written decision, explaining that the members
of the Board, “as laypeople, were less suited to the task,” and
explained that he had “followed this practice consistently during
[his] tenure as county attorney.” Once it was drafted, the County
Attorney submitted the written decision to Mr. Hatch for his
review on three separate occasions, asking that Mr. Hatch respond
if he had “any proposed changes, objections or additions.” Mr.
Hatch’s objections, however, were not to the form of the proposed
decision or its language, but instead raised essentially the same
issues with regard to the substance of the decision as in the district
court and on appeal. The County Attorney then submitted the
proposed written decision to the Board, which reviewed and
signed it. The County Attorney explained that he had no direct
contact with the Board when preparing and delivering the written
decision. Mr. Hatch has shown no impropriety in the process
through which the Board entered its final written decision, and his
remedy for any error that might have arisen in the process of
translating the Board’s oral ruling into a written decision lies in his
right to petition for review in the district court and this court,
which he has done.
¶23 Ultimately, we agree with the district court that the Board’s
written findings “appear to be a fair, written memorialization of
[its] decision.” Accordingly, as did the district court, we decline
Mr. Hatch’s request to strike the Board’s written decision.
III. Conclusion
¶24 We conclude that the Board’s decision to deny Mr. Hatch a
building permit on the basis that the 40‐acre parcel in the Stevens
Canyon Estates property was improperly subdivided is not
arbitrary, capricious, or illegal. We further conclude that Mr. Hatch
has failed to identify any material error in either the substance of
the Board’s decision or the process by which it was reached. We
therefore decline to disturb the Board’s decision.
20110199‐CA 16 2013 UT App 119Hatch v. Kane County Board of Adjustment
20110199‐CA 17 2013 UT App 119