Olsen v. Park City Municipal Corp.

2013 UT App 262_________________________________________________________
THE UTAH COURT OF APPEALS
DAVID OLSEN , ROSEMARY OLSEN , DIANNE NEWLAND ,
WILLIAM NEWLAND , AND RICK MARGOLIS,
Plaintiffs and Appellants,
v.
PARK CITY MUNICIPAL CORPORATION ,
Defendant and Appellee.
Opinion
No. 20120490-CA
Filed November 7, 2013
Third District Court, Silver Summit Department
The Honorable Keith A. Kelly
No. 110500786
Bruce R. Baird, Attorney for Appellants
Mark D. Harrington and Polly Samuels-McLean,
Attorneys for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGE J. FREDERIC VOROS JR. and SENIOR JUDGE
RUSSELL W. BENCH concurred.1
ORME, Judge:
¶1 David and Rosemary Olsen, Dianne and William Newland,
and Rick Margolis (collectively, Landowners) appeal from a district
court order dismissing their complaint as untimely under section
10-9a-801 of the Utah Code. We reverse and remand for
consideration of the merits of Landowners’ complaint.
1. The Honorable Russell W. Bench, Senior Judge, sat by special
assignment as authorized by law. See generally Utah Code Jud.
Admin. R. 11-201(6).
Olsen v. Park City
BACKGROUND
¶2 Landowners seek to challenge the adoption of Park City
Ordinance 10-08 (the Ordinance). The Ordinance approved the
creation of a subdivision and combined three separate properties
into a single lot. Landowners claim that this combining of parcels
adversely affects their property interests, and they have opposed
the Ordinance since it was first proposed.
¶3 On February 25, 2010, the Park City Council passed the
Ordinance after a public hearing. The Ordinance was subsequently
signed by the mayor, attested by the city recorder, and approved
as to form by the city attorney. The Ordinance stated that it “shall
take effect upon publication,” and it was published on March 3,
2010.
¶4 On March 31, 2010, Landowners filed a complaint in the
district court challenging the Ordinance. However, Landowners
did not serve the complaint on Park City Municipal Corporation
(the City) until December 8, 2010. The district court dismissed
Landowners’ complaint without prejudice on July 12, 2011, for
failure to timely serve process under rule 4 of the Utah Rules of
Civil Procedure. See Utah R. Civ. P. 4(b). Pursuant to the Savings
Statute, see Utah Code Ann. § 78B-2-111(1) (LexisNexis 2012),2
Landowners filed a new complaint on October 13, 2011, again
challenging the adoption of the Ordinance. The City responded to
the new complaint by filing a motion to dismiss.
¶5 The district court granted the City’s motion to dismiss. It
held that the Savings Statute only provides the right to commence
a new action if the original action was “timely filed.” See id. The
court concluded that the Landowners’ original complaint was not
2. Because the provisions in effect at the relevant time do not differ
in any way material to our analysis from the statutory provisions
now in effect, we cite the current version of the Utah Code as a
convenience to the reader.
20120490-CA 2 2013 UT App 262Olsen v. Park City
timely filed under the Municipal Land Use, Development, and
Management Act (MLUDMA). See id. § 10-9a-801(5) (“[A] challenge
to the enactment of a land use ordinance or general plan may not
be filed with the district court more than 30 days after the
enactment.”). The district court held that the term “enactment” as
it appears in subsection 801(5) of MLUDMA “is not ambiguous and
refers to the date the Ordinance was passed and adopted by the
City Council.” Because Landowners filed their original complaint
more than thirty days after the City Council’s passage of the
Ordinance, the district court dismissed their complaint as untimely
filed. Landowners now appeal.
ISSUE AND STANDARD OF REVIEW
¶6 Landowners challenge the district court’s interpretation of
MLUDMA’s filing requirements. “A challenge to statutory
construction raises a question of law that we review for
correctness,” affording the district court no deference. See Stampin’
Up, Inc. v. Labor Comm’n, 2011 UT App 147, ¶ 7, 256 P.3d 250.
ANALYSIS
¶7 MLUDMA establishes the time allowed to file challenges to
local land use decisions in district court. See Utah Code Ann. § 10-
9a-801 (LexisNexis 2012). Specifically, subsection 801(5) of
MLUDMA indicates that “a challenge to the enactment of a land
use ordinance or general plan may not be filed with the district
court more than 30 days after the enactment.” Id. § 10-9a-801(5)
(emphasis added).3 Landowners contend that “the Park City
3. While Landowners argue that we should apply other provisions
of MLUDMA dealing with “land use application[s],” see Utah Code
Ann. § 10-9a-801(2)(a), (4) (LexisNexis 2012) (emphasis added), we
interpret only subsection 801(5), which applies to “land use
(continued...)
20120490-CA 3 2013 UT App 262Olsen v. Park City
Council’s single act of passage of the Ordinance was not
‘enactment,’” so that the thirty-day limitations period “did not
begin to run until the Ordinance became final and effective by its
own terms.” We agree.
¶8 “We interpret a statute according to its plain language.”
Stampin’ Up, Inc. v. Labor Comm’n, 2011 UT App 147, ¶ 7, 256 P.3d
250. See Florida Asset Fin. Corp. v. Utah Labor Comm'n, 2006 UT 58,
¶ 9, 147 P.3d 1189 (“Under our established rules of statutory
construction, we look first to the plain meaning of the pertinent
language in interpreting [a statute]; only if the language is
ambiguous do we consider other sources for its meaning.”). When
construing a statute, we presume “that the words and phrases used
were chosen carefully and advisedly,” Amax Magnesium Corp. v.
Utah State Tax Comm’n, 796 P.2d 1256, 1258 (Utah 1990), and “we
seek to avoid an interpretation that leads to absurd results,” State
v. Rincon, 2012 UT App 372, ¶ 10, 293 P.3d 1142.
¶9 The definition of “enactment” is “the act or action of
enacting: passing.” Webster’s Third New International Dictionary 745
(1993). Although “pass” can be regarded as a synonym of “enact,”
in actuality to “pass” means to “secure the allowance or approval
of a legislature or other body that has power to sanction or reject a
bill or proposal,” id. at 1649, while to “enact” means “to establish
by legal and authoritative act: make into law; [especially] to
perform the last act of legislation upon (a bill) that gives the
validity of law,” id. at 745. Thus, while “passage” is an important
3. (...continued)
ordinance[s],” see id. § 10-9a-801(5) (emphasis added), for two
reasons. First, the Ordinance was labeled “Ordinance No. 10-08”
and entitled, “An Ordinance Approving the 1440 Empire Avenue
Subdivision Located at 1440 Empire Avenue, Park City, Utah.”
Second, MLUDMA defines a “land use ordinance” as “a planning,
zoning, development, or subdivision ordinance of the municipality.”
Id. § 10-9a-103(24) (LexisNexis Supp. 2013) (emphasis added).
20120490-CA 4 2013 UT App 262Olsen v. Park City
step in “enactment,” passage alone was not enough in this case to
give the Ordinance “the validity of law.” See id.¶10 Based on a plain reading of the statute, in conjunction with
a plain reading of the Ordinance, we conclude that in this case
publication is the required final step in the enactment of the
Ordinance. Indeed, the Ordinance expressly stated that it would
“take effect upon publication.” Thus, while passage by the city
council was a necessary and pivotal step in the enactment of the
Ordinance, it was not the final step that made the Ordinance
effective and enforceable as law. After passage of the Ordinance by
the City Council, there were still a number of necessary conditions
before the Ordinance would become effective: signature by the
mayor, attestation by the city recorder, approval as to form by the
city attorney, and publication. In fact, had the Ordinance never
been published, it would never have come into effect and never
would have had the force of law. It is illogical to think of an
ordinance that has been passed, but has never become enforceable,
as having been enacted. Because Landowners filed their original
complaint within thirty days of the March 3, 2010 publication of the
Ordinance, the last step necessary for its enactment, we conclude
that their complaint was timely filed.4
4. In light of our holding that Landowners’ original complaint was
timely filed, we also necessarily reverse the district court’s
determination that Landowners are barred from commencing a
new action under the Savings Statute. See Utah Code Ann. § 78B-2-
111 (LexisNexis 2012). The Savings Statute allows a plaintiff to
commence a new action within one year if (1) the original action
was timely filed, (2) “the judgment for the plaintiff is reversed, or
if the plaintiff fails in the action or upon a cause of action otherwise
than upon the merits,” and (3) the statute of limitations has
expired. Id. § 78B-2-111(1). We conclude that these requirements are
met and that Landowners’ challenge to the Ordinance is properly
before the district court.
20120490-CA 5 2013 UT App 262Olsen v. Park City
¶11 The Utah Supreme Court recently reached an analogous
conclusion in Perez v. South Jordan City, 2013 UT 1, 296 P.3d 715. In
Perez, the petitioner sought to challenge a municipal appeal board’s
decision. Id. ¶ 1. The Utah Municipal Code required that a petition
for review “be filed ‘within 30 days after the issuance of the final
action or order of the appeal board.’” Id. ¶ 10 (emphasis added)
(quoting Utah Code § 10-3-1106(6)(a),(b)). The key question in
Perez, as here, was what action triggered the thirty-day limitations
period. See id. On appeal, this court determined that the appeal
board’s order was “issued” as of the date “on its face.” Perez v.
South Jordan City, 2011 UT App 430, ¶ 4, 288 P.3d 877 (citation and
internal quotation marks omitted). But the Utah Supreme Court
reversed, concluding that “issuance” was not complete until the
city recorder had certified the order as required by statute. Perez,
2013 UT 1, ¶¶ 8, 11 (noting that the municipal code required a
decision of the municipal appeal board to be certified to the city
recorder before it could be final).
¶12 In reaching that conclusion, the Supreme Court looked to
“rules and cases governing analogous procedures in other
contexts.” Id. ¶ 11. For example, the Court considered the
requirement that district court judgments be “‘signed and filed’”
with the court clerk before they are final and appealable. Id. ¶ 12
(quoting Utah R. Civ. P. 58A(c)). In drawing this analogy, the Court
noted:
This rule advances the core policies of certainty and
clarity by designating a clear date—filing with the
clerk—that starts the appeal clock running. It also
assures dissemination to the public—by requiring the
clerk to immediately record the judgment on the
public register.
Id. Likewise, in construing the word “enactment” in terms of
finality and notice to the public, we adhere to these core policies
and emphasize the need for uniform, easy-to-follow guidelines in
the context of limitations periods. Perez created a sound template
for such uniform guidelines in holding that time standards for
20120490-CA 6 2013 UT App 262Olsen v. Park City
appeals must include both (1) “a clearly marked trigger date for the
appeal period” and (2) “a mechanism for issuance of the decision
to the public.” Id. ¶ 26. Our holding today meets these guidelines
in guaranteeing, through the Ordinance’s publication, both a
clearly marked trigger date and recognition of the importance of
the City’s own chosen mechanism for giving notice to the public.5
CONCLUSION
¶13 The plain meaning of the term “enactment” encompasses all
necessary steps to give an ordinance the validity of law, i.e., to
enact it into law. The Ordinance was not enacted until, by the terms
of the procedures adopted by the City, it was passed by the city
council, signed by the mayor, attested by the city recorder,
approved as to form by the city attorney, and published.
Consequently, Landowners’ original complaint filed in the district
court was timely. Accordingly, we reverse the district court’s ruling
to the contrary and remand for consideration of the merits of
Landowners’ challenge to the Ordinance.
5. We view as much less compelling the City’s reliance on another
Utah Supreme Court case, Bissland v. Bankhead, 2007 UT 86, 171
P.3d 430. In Bissland, the Court interpreted the term “passage.”
Id. ¶¶ 8–10. The Court recognized “the commonly understood
meaning of passage as the event at which a legislative body
conducts a vote favorable to a piece of proposed legislation.”
Id. ¶ 9. Because Perez v. South Jordan City, 2013 UT 1, 296 P.3d 715,
was issued more recently than Bissland and because we have
already identified “passage” as merely one step in “enactment,” we
see no need to dwell further on Bissland.
20120490-CA 7 2013 UT App 262