Specht v. Big Water Town

2017 UT App 75THE UTAH COURT OF APPEALS
RICHARD SPECHT,
Appellant,
v.
BIG WATER TOWN, PAUL HYDE, AND DEBBIE HYDE,
Appellees.
Opinion
No. 20150775-CA
Filed May 4, 2017
Sixth District Court, Kanab Department
The Honorable Wallace A. Lee
No. 040600075
Bruce R. Baird and Dallis Nordstrom Rohde,
Attorneys for Appellant
Jeremy G. Knight and S. Spencer Brown, Attorneys
for Appellees
JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES
STEPHEN L. ROTH and MICHELE M. CHRISTIANSEN concurred.
TOOMEY, Judge:
¶1 Richard Specht challenges a land use variance and the
vacation1 of a cul-de-sac in Big Water (the Town), which the
1. In the land use context, the term ‚vacation‛ is defined as ‚a
termination of the public interest in a street or highway by
formal or positive action of the public authority.‛ Private
Easement in Way Vacated, Abandoned, or Closed by Public, 150
A.L.R. 644 (1944). We note that a vacation may affect only a part
of a road, plat, or subdivision. 11 McQuillin, Municipal
Corporations § 30:188 (3d ed. 2010). Both parties refer to the
vacation as a ‚reduction‛ in their briefing. Although the terms
(continued<)
Specht v. Big Water Town
Town’s Board of Adjustment (the Board) and Town Council (the
Council) granted in favor of Specht’s neighbors, Paul Hyde and
Debbie Hyde (the Hydes). Specht appeals the district court’s
order denying his motion for summary judgment and granting
the Hydes’ cross-motion for summary judgment. Specht makes
two principal arguments. First, he argues the variance was
arbitrary, capricious, and illegal because the Board did not make
findings as to each of the required conditions of a variance and
did not have substantial evidence to support its decision to grant
it. Second, Specht contends the cul-de-sac vacation was arbitrary,
capricious, and illegal because the Council did not have good
cause to support it and did not provide proper notice of its
hearings. We affirm.
BACKGROUND
¶2 The Hydes own two adjoining lots, lots 9 and 10, at the
end of the Rose Garden cul-de-sac in Big Water, Utah. Each lot is
smaller than one quarter of an acre.
The Variance
¶3 In July 2004, the Hydes applied for a building permit to
construct a house on lot 9. One week later, they applied for a
variance to decrease the rear yard setback requirement on the lot
from twenty feet to ten feet to ameliorate the steep downhill
grade from the cul-de-sac to their lot and to provide room to
install a septic tank. In their variance application, the Hydes
explained that, unlike the other lots in the Rose Garden cul-de-
sac, theirs was ten feet below the cul-de-sac. They stated that the
requested variance would not be contrary to the public interest
(Utah Code Ann. § 10-9a-608 (LexisNexis 2015).
20150775-CA 2 2017 UT App 75Specht v. Big Water Town
or substantially affect the area’s master plan, because there were
no neighbors to the rear of their lot and it could not be seen from
the main road.
¶4 In its July 20, 2004 meeting, the Board granted the Hydes’
variance application. In making its determination, the Board
considered the variance application, a proposed plat map of the
cul-de-sac with the smaller setback and with the vacation of a
portion of the cul-de-sac, a letter from the health department, the
applicable zoning ordinances, and statements made during the
meeting. At the opening of the meeting, the Board recognized it
could not grant the variance unless it met all five conditions
required for a variance under the law. See infra ¶ 23. It proceeded
to hear testimony about the lot and discuss whether the Hydes
qualified for a variance.
¶5 According to the meeting minutes, the Hydes stated that
when they bought the lot, it was six feet below the cul-de-sac at
about a 5% grade, but a neighbor later raised the cul-de-sac by
four feet. This alteration significantly increased the slope,
limiting access to the Hydes’ lot. They explained that decreasing
the setback by ten feet and reducing the diameter of the cul-de-
sac would allow them to build a driveway with an 8% grade.
The Board observed that although each of the cul-de-sac lots
covers less than one quarter of an acre, most of the other lots in
the zoning district are half-acre lots.
¶6 As the Hydes indicated in their variance application, they
needed the variance, in part, to install a septic system on their
lot. The Board discussed this at the meeting and asked if the
small size of the lot prevented them from installing a septic
system. The Hydes reported that the lot was not too small for a
septic system and submitted a letter from the health department
to that effect.2 The Board noted the Hydes needed such a system.
2. The letter from the health department discussing the septic
system was not included in the administrative record.
20150775-CA 3 2017 UT App 75Specht v. Big Water Town
The Hydes explained the variance would enable them to install
the septic system without encroaching on neighboring land
owned by the Utah School and Institutional Trust Lands
Administration.
¶7 The minutes reflect that the Board audibly read each of
the five conditions required of a variance. See infra ¶ 23. It
emphasized again that, unlike the Hydes’ lot, most of the lots in
the zoning district were half-acre lots and did not have a
problem with the setback requirements: ‚The setbacks *were+
designed for half-acre lots. So that makes it a hardship to abide
by the setbacks . . . .‛ The Board asked if granting the variance
would be harmful to other property owners in the area, and
whether it would ‚go against the whole future development of
the community.‛ It recognized that the applicant must not be the
one who created the hardship and that the hardship must not be
common to other properties in the area. The Board determined
that the Hydes did not create the hardship in this case; rather, it
was caused by the neighbor who had raised the cul-de-sac and
limited the Hydes’ access to their property. After discussing the
five conditions, the Board reached a unanimous decision to grant
the variance because the Hydes’ application met ‚all the
requirements for the variance.‛
The Vacation of the Cul-de-sac
¶8 In January 2004, the Hydes requested vacation of a
portion of the cul-de-sac. The Town’s Planning and Zoning
Committee (the Committee) directed them to hire a certified
surveyor to redraw the plat with the proposed changes before it
would consider their request. In August 2004, the Committee
considered the Hydes’ request at its regular meeting, and they
presented a rendering of the plat with the proposed vacation.
They explained that reducing the cul-de-sac’s 100-foot diameter
to a 60-foot diameter would mitigate the steep slope of their
driveway because it would give them more space to grade it.
They also noted that the vacation would provide enough space
to allow another neighbor to park a vehicle on his property
20150775-CA 4 2017 UT App 75Specht v. Big Water Town
rather than on the street. Specht also spoke and mentioned that
one of the reasons he bought his property was because of the
wide cul-de-sac, which made it easy to turn around.
¶9 After hearing from the Hydes and Specht, one committee
member moved to recommend approval of the vacation to the
Council. The Committee was split on its recommendation, with
two members voting to recommend the vacation and two voting
against it. The Committee announced that the Council would
hold a public hearing on the request.
¶10 On August 20, 2004, the Town posted, in three separate
public places, notice of the Council’s public hearing set for
September 21, 2004. The notice announced that the Council
would hear questions and comments regarding ‚*a+ petition to
vacate the diameter of the [Rose Garden] cul-de-sac.‛
¶11 According to the Council hearing minutes, a council
member spoke about the vacation and noted that the Town’s
zoning ordinance allowed a cul-de-sac to have a diameter as
small as 60 feet. She stated that after inspecting the cul-de-sac,
she did not see a problem with reducing it and that ‚*u+nless
there [was] compelling evidence from adjoining property
owners,‛ the Council should support the vacation. The Council
then opened the hearing for public comment. Specht was the
first to comment. He displayed some pictures of a truck
delivering cinderblocks to a property on the cul-de-sac and
explained that the truck could not turn around there. According
to Specht, all of the lots in the cul-de-sac sat on a hill, and
therefore, the Hydes were not alone in dealing with that issue.
Specht also asserted that Kane County and the ‚national code‛
do not allow a cul-de-sac to be as small as 60 feet in diameter.
¶12 After Specht finished, Mr. Hyde commented. He said that
it was Specht who raised the elevation of the cul-de-sac, which
now sat four and a half feet higher than when the Hydes
purchased their property. According to Hyde, Specht ‚brought
in load after load of any kind of material he could get his hands
20150775-CA 5 2017 UT App 75Specht v. Big Water Town
on,‛ such as ‚broken up concrete, broken up asphalt, [and] river
boulders,‛ to elevate the cul-de-sac. Hyde explained that as a
result, the Hydes’ driveway was on a 14% grade but with the
variance and the vacation, they could lower it to an 8% grade,
‚which is still steep but . . . workable.‛ Hyde added that he had
spoken with ‚every emergency agency that might be entering
[the] cul-de-sac‛ and none of the agencies objected to the
vacation. Hyde finished by reiterating that he and his wife
requested the vacation to ‚obtain reasonable access to their
property,‛ which they did not have because of a condition that
Specht created.
¶13 Another resident commented that he wished the Town
would ‚stick to what *was+ drawn out.‛ Mrs. Hyde responded
by explaining that ‚*w+hen they bought the property, they did
not have a problem with the size of the cul-de-sac‛ and that the
building up of the cul-de-sac created the need for a vacation. She
was the last to comment. At the close of the hearing, all five
members of the Council voted to approve the vacation.
¶14 At its January 2005 public hearing, the Council officially
approved the vacation by amending ordinance 2004-233. The
amendment provides that ‚*t+he Town Council has found good
cause for vacation of a portion of the cul-de-sac‛ and that ‚this
vacation will not be detrimental to the general interest‛ of the
Town.
District Court Review
¶15 In October 2004, Specht petitioned the district court to
review the Board’s and the Council’s decisions, claiming the
decisions were arbitrary, capricious, and illegal. The petition
named the Town but did not identify the Hydes as respondents.3
3. Specht characterized the petition as a ‚Complaint/Petition for
Review‛ and listed the Town as a defendant rather than a
respondent.
20150775-CA 6 2017 UT App 75Specht v. Big Water Town
Specht filed a motion for summary judgment, and the Town
filed a cross-motion for summary judgment. Specht made three
arguments. First, he argued the Town’s issuance to the Hydes of
a building permit for the construction of their house was illegal
because their quarter-acre lot did not meet the Town’s zoning
requirement that lots be a minimum size of one half acre.
Second, Specht argued the variance was arbitrary and capricious
because it was not supported by substantial evidence. Third,
Specht argued the vacation was illegal because the Town did not
provide proper notice of the Planning and Zoning meeting or the
Council hearing. The court granted Specht’s motion and ordered
the Town ‚to require the Hydes to combine their lots in
compliance with Utah State law to bring their lots into
compliance with the Zoning Ordinance.‛ The court found there
was substantial evidence to grant the variance but concluded it
was illegal because the Hydes’ lot did not meet the zoning
requirement. Although the court found that the Town complied
with the notice requirement that it ‚post such notice for four
consecutive weeks in three public places in that municipality,‛ it
concluded the vacation was illegal because the Town did not
prove that Specht and other affected neighbors received proper
notice as Utah law required.
¶16 In December 2006, the Town filed a rule 60(b) motion for
relief from the district court’s order of summary judgment. See
Utah R. Civ. P. 60(b). In its motion,4 the Town explained that it
had inadvertently overlooked a provision of its code governing
non-conforming lots, which permitted the Hydes to obtain the
4. The Town’s memorandum in support of its motion was not
included in the appellate record and has since been destroyed
pursuant to the district court’s ordinary recordkeeping practices.
Although the memorandum does not appear in the record, the
Town’s arguments are found in its reply and mentioned in
Specht’s memorandum in opposition.
20150775-CA 7 2017 UT App 75Specht v. Big Water Town
necessary permits to build on their lot.5 The Town argued the
district court should vacate the order of summary judgment
because the order ‚would require *the Town+ to make a good
faith—but likely futile—effort to require the Hydes to combine
their lots and not enjoy the benefit of the zoning ordinance’s
[non-conforming lots] provision.‛ As to vacation of the cul-de-
sac, the Town argued that newly discovered evidence suggesting
the Town provided proper notice to Specht and other affected
neighbors was sufficient for the court to conclude that the Town
complied with the notice requirements. In the alternative, the
Town argued the new evidence created a genuine dispute as to
whether the Town complied with the notice requirements, and
therefore summary judgment on that issue was inappropriately
granted. The court summarily granted the Town’s motion and
vacated its order granting Specht summary judgment. It is
unclear upon which ground the court vacated its order.
¶17 While the Town’s rule 60(b) motion was pending, the
Hydes intervened in the action. After several more years of
litigation and after the parties stipulated to the administrative
record for the district court to review, Specht again moved for
5. Section 1408 of the Town’s zoning ordinance provides in
relevant part:
Any legal lot or parcel of land . . . shall be eligible
to be used for one (1) single family
dwelling . . . even though such lot or parcel does
not conform with the regulations of this Ordinance
for the zoning district in which it is located,
provided that such lot or parcel of land is located
in a Zoning District which permits single family
dwellings and provided further that all proposed
construction can qualify for the issuance of a
building permit as required by the Building Code.
Big Water, Utah, Zoning Ordinance § 1408 (2004).
20150775-CA 8 2017 UT App 75Specht v. Big Water Town
summary judgment. In response, the Hydes, acting pro se, filed
a cross-motion for summary judgment.
¶18 In his motion for summary judgment, Specht made the
same arguments that he makes on appeal. He argued the
variance was illegal because the Board did not make all of the
necessary statutory findings and the Board’s decision was not
supported by substantial evidence. Specht also argued the
vacation was illegal because the Town did not provide proper
notice of the Planning and Zoning meeting and the Council’s
hearing, there was no good cause for granting the vacation, and
Specht was materially harmed by the vacation. In their cross-
motion, the Hydes argued the Board’s decision was supported
by substantial evidence and it ‚followed all legal requirements
to grant *the+ variance.‛ They further argued that the Council
properly granted the vacation, which did not harm Specht, and
that the Town complied with all notice requirements.
¶19 After oral argument on the motions for summary
judgment, the district court issued a memorandum decision and
order in which it denied Specht’s motion and granted the Hydes’
cross-motion. The court noted the Board ‚heard from citizens
and from Mr. and Mrs. Hyde‛ and ‚reviewed the applicable plat
map and a letter from the health department.‛ The court
concluded that ‚this evidence qualifies as substantial evidence
because it is relevant, relates to standards for granting a
variance, and is credible.‛ The court further explained that
‚*a+lthough the findings of the board are oral findings,
memorialized in minutes of the meeting, and by no means
perfect, the Court finds they are sufficient for the Court to
conclude the board carefully considered and wrestled with the
evidence both favorable and contrary to the requested variance.‛
In reaching its decision on the vacation, the court first addressed
whether the Council’s decision was a legislative act or an
administrative act. The court concluded the Council’s decision to
grant the vacation was an administrative act ‚because it did not
create new law, but merely executed or implemented existing
law,‛ and under Utah law, Specht was required to exhaust his
20150775-CA 9 2017 UT App 75Specht v. Big Water Town
administrative remedies before he could petition the district
court for review. The court found that Specht did not exhaust his
administrative remedies and therefore it lacked jurisdiction to
review the Council’s decision to grant the vacation. Specht
appeals.
ISSUES AND STANDARDS OF REVIEW
¶20 Specht raises two issues on appeal. First, he contends the
variance was arbitrary, capricious, and illegal because the Board
did not make findings as to all the conditions required of a
variance and the findings it did make were not supported by
substantial evidence. Second, Specht contends the cul-de-sac
vacation was arbitrary, capricious, and illegal because there was
no good cause for allowing it, it caused material injury to Specht
and other property owners, and the Council did not provide
proper notice of its hearing to consider it.
¶21 ‚When a lower court reviews an order of an
administrative agency and we exercise appellate review of the
lower court’s judgment, we act as if we were reviewing the
administrative agency decision directly and do not defer, or
accord a presumption of correctness, to the lower court’s
decision.‛ Carrier v. Salt Lake County, 2004 UT 98, ¶ 17, 104 P.3d
1208 (citation and internal quotation marks omitted). We do,
however, presume that the final decision of the administrative
agency ‚is valid—i.e., not arbitrary or capricious—so long as it is
supported by substantial evidence.‛ See Vial v. Provo City, 2009
UT App 122, ¶ 9, 210 P.3d 947 (citation and internal quotation
marks omitted).
¶22 ‚On the other hand, whether or not the [administrative
agency’s+ decision is illegal depends on a proper interpretation
and application of the law,‛ and in this regard, we accord no
deference to the administrative agency. See Vial, 2009 UT App
122, ¶ 9 (citation and internal quotation marks omitted).
20150775-CA 10 2017 UT App 75Specht v. Big Water Town
ANALYSIS
I. The Variance
¶23 The Hydes applied to the Board for a variance from the
rear yard setback requirement to reduce the steepness of their
driveway and thus provide them with reasonable access to their
property. Under Utah law, the Board could not grant the
variance unless it found that
(i) literal enforcement of the ordinance would
cause an unreasonable hardship for the applicant
that is not necessary to carry out the general
purpose of the land use ordinances;
(ii) there are special circumstances attached to the
property that do not generally apply to other
properties in the same zone;
(iii) granting the variance is essential to the
enjoyment of a substantial property right
possessed by other property in the same zone;
(iv) the variance will not substantially affect the
general plan and will not be contrary to the public
interest; and
(v) the spirit of the land use ordinance is observed
and substantial justice done.
Utah Code Ann. § 10-9a-702(2)(a) (LexisNexis 2015).6
¶24 Specht argues that granting the variance was illegal
because the Board did not find all five conditions specified by
6. Although the variance and the vacation were granted in 2004,
for ease of reference, we cite the relevant statutes to their most
recent codifications in the Utah Code unless the statute has since
been repealed or amended to such an extent as to alter its
meaning.
20150775-CA 11 2017 UT App 75Specht v. Big Water Town
the Utah Code. Specht further argues the Board’s decision to
grant the variance was arbitrary and capricious because it was
not supported by substantial evidence and the district court
erred in upholding it.7 We address these two claims together.
¶25 The parties stipulated to the administrative record the
district court reviewed in granting the Hydes’ cross-motion for
7. The Town and the Hydes contend Specht has failed to
adequately ‚marshal all record evidence that supports the
challenged finding*s+,‛ see Utah R. App. P. 24(a)(9), and imply
that this failure should result in procedural default. Our
supreme court has clarified the contours of the marshaling
requirement:
[W]e now conclude that the hard-and-fast
default notion of marshaling is more problematic
than helpful—particularly when compounded by
the heightened requirements of our caselaw (to
present ‚every scrap‛ of evidence and to play
‚devil’s advocate‛) and our retention of discretion
to disregard a marshaling defect where we deem it
appropriate.
We therefore repudiate the default notion of
marshaling sometimes put forward in our cases
and reaffirm the traditional principle of marshaling
as a natural extension of an appellant’s burden of
persuasion. Accordingly, from here on our analysis
will be focused on the ultimate question of whether
the appellant has established a basis for
overcoming the healthy dose of deference owed to
factual findings and jury verdicts—and not on
whether there is a technical deficiency in
marshaling meriting a default.
State v. Nielsen, 2014 UT 10, ¶¶ 40–41, 326 P.3d 645. In light of
this clarification, we have decided to reach the merits of Specht’s
argument.
20150775-CA 12 2017 UT App 75Specht v. Big Water Town
summary judgment. The record is thin, just fifty-nine pages. In
reviewing the Board’s decision, we likewise limit our analysis to
the administrative record to which the parties stipulated and do
not consider anything outside of it. See Patterson v. Utah County
Board of Adjustment, 893 P.2d 602, 604 (Utah Ct. App. 1995). We
note that Specht’s brief relies on a transcript of the Board’s
meeting during which it granted the variance. But the
administrative record the parties agreed on does not include this
transcript; instead, it includes the minutes of the meeting.8
Specht also relies on depositions taken from Mr. Hyde and a
Town official that are not part of this record. Because the
transcript and the depositions are not part of the stipulated
administrative record, we do not consider them in rendering our
decision.
¶26 In Wells v. Board of Adjustment of Salt Lake City Corp., 936
P.2d 1102 (Utah Ct. App. 1997), we reviewed the decision of the
Salt Lake City Board of Adjustment (the SLC Board) concerning
a restaurant’s application for a variance from a zoning ordinance
that required the restaurant to landscape its rear yard. Id. at 1103.
There, the SLC Board granted the restaurant’s variance and
submitted a written order with only one finding: that ‚the
neighborhood would be better served‛ by granting the variance.
See id. at 1103–04 (internal quotation marks omitted). Residents
of the adjoining neighborhood opposed the variance and sought
review of the SLC Board’s decision in district court. Id. The
8. The Board was legally obligated to provide the district court
with ‚the record of its proceedings including its minutes,
findings, orders and, if available, a true and correct transcript of
its proceedings.‛ Utah Code Ann. § 10-9a-801(7)(a) (LexisNexis
2015). We emphasize that the Board was not required to ‚have
its proceedings contemporaneously transcribed by a court
reporter or a tape recorder.‛ Id. § 10-9-702(4)(c) (LexisNexis 2003)
(repealed 2005). Considering the Board’s meeting transcript later
became available, it is unclear why Specht stipulated to an
administrative record that did not include it.
20150775-CA 13 2017 UT App 75Specht v. Big Water Town
district court considered the SLC Board’s order, a transcript of its
meeting, and other evidence before it. Id. at 1104. The court
granted summary judgment in favor of the SLC Board, and the
residents appealed. Id. They made the same arguments that
Specht makes here—namely, that the SLC Board’s decision was
not supported by substantial evidence and was therefore
arbitrary and capricious, and the decision was illegal because the
SLC Board did not make the required statutory findings. See id.
at 1104–05.
¶27 The SLC Board and restaurant argued, however, that this
court could ‚glean‛ or ‚divine‛ from the record that the SLC
Board considered each of the conditions. See id. at 1105 (internal
quotation marks omitted). But after reviewing the transcript of
the SLC Board’s meeting and its order, we ‚found no evidence
that suggest[ed] the Board considered each of [the] statutory
*conditions+‛ required for a variance. Id. (emphasis added). We
also concluded that the SLC Board granted the variance without
making the required statutory findings. Id. at 1104. Accordingly,
we held that the decision to grant the variance was arbitrary and
capricious because it was not supported by substantial evidence,
and that the decision was illegal because the SLC Board failed to
make all the required statutory findings. Id. at 1104–05.
¶28 Specht similarly claims the Board’s decision to grant the
variance was based on a single finding that the variance would
do no harm and that the Board did not make findings as to each
of the five conditions required for a variance under Utah Code
section 10-9a-702(2)(a) (LexisNexis 2015). Specht urges us to
conclude, as we did in Wells, that the Board acted illegally in
granting the variance because it did not make all the necessary
findings.
¶29 Although the Board’s minutes indicate that it asked at the
meeting whether granting the variance would ‚hurt anybody,‛
Specht isolates this question and ignores the other evidence in
the minutes demonstrating that the Board made all the statutory
findings. Specht fails to mention that the Board made the
20150775-CA 14 2017 UT App 75Specht v. Big Water Town
following findings: that ‚*t+he setbacks *were+ designed for half-
acre lots,‛ which made it ‚a hardship to abide by the setbacks;‛
that the Hydes ‚did not create the hardship;‛ that unlike the
Hydes’ lot, most of the lots in the zoning district are half-acre
lots that do not have a problem with the setback requirements;
that the raised cul-de-sac limited the Hydes’ access to their
property; and that after discussing all five conditions, the Board
moved to grant the variance because it met ‚all the requirements
for the variance.‛ In addition, Specht makes no mention of the
evidence that the variance would aid the Hydes in installing a
septic system, that the health department did not think the
variance would ‚be a problem,‛ or that the Board considered
whether granting the variance would ‚go against the whole
future development of the community.‛
¶30 This is far different from what occurred in Wells, where,
after reviewing the administrative record, including a transcript
of the SLC Board’s meeting, we ‚found no evidence‛ that
suggested the SLC Board considered each of the five conditions.
See 936 P.2d at 1105. By contrast, at the outset of the Board’s
meeting in the present case, it stated that it could not grant the
variance unless all five conditions were met. In addition, it was
clear in Wells that the SLC Board did not make all the necessary
findings because its written order included only one finding:
that ‚the neighborhood would be better served‛ by granting the
variance. See id. at 1104–05 (internal quotation marks omitted).
Specht’s claim that the Board likewise made only one finding is
inaccurate. After reviewing the administrative record, we
conclude the Board considered each of the five conditions for a
variance and issued oral findings as to each one.
¶31 We now turn to Specht’s claim that the Board’s decision
was arbitrary and capricious because it was not supported by
substantial evidence. ‚[T]he Board’s decision can only be
considered arbitrary or capricious if not supported by substantial
evidence.‛ Patterson v. Utah County Board of Adjustment, 893 P.2d
602, 604 (Utah Ct. App. 1995). ‚Substantial evidence is that
quantum and quality of relevant evidence that is adequate to
20150775-CA 15 2017 UT App 75Specht v. Big Water Town
convince a reasonable mind to support a conclusion.‛ Vial v.
Provo City, 2009 UT App 122, ¶ 9, 210 P.3d 947 (citation and
internal quotation marks omitted). To determine whether
substantial evidence supports the administrative agency’s
decision, we ‚consider all the evidence in the record, both
favorable and contrary to the *agency’s+ decision.‛ Id. (citation
and internal quotation marks omitted). ‚Nevertheless, our
review, like the district court’s review, is limited to the record
provided by the [administrative agency+‛ and we ‚may not
accept or consider any evidence outside the *agency’s+ record.‛
See Patterson, 893 P.2d at 604.
¶32 The first condition required the Board to find that ‚literal
enforcement of the ordinance would cause an unreasonable
hardship for the applicant that is not necessary to carry out the
general purpose of the land use ordinances.‛ Utah Code Ann.
§ 10-9a-702(2)(a)(i) (LexisNexis 2015). Section 702 provides
guidance on how a board of adjustment may determine whether
the zoning ordinance would cause unreasonable hardship.
‚*T+he appeal authority may not find an unreasonable hardship
unless the alleged hardship: (A) is located on or associated with
the property for which the variance is sought; and (B) comes
from circumstances peculiar to the property, not from conditions
that are general to the neighborhood.‛ Id. § 10-9a-702(2)(b)(i). In
addition, ‚the appeal authority may not find an unreasonable
hardship if the hardship is self-imposed or economic.‛ Id. § 10-
9a-702(2)(b)(ii).
¶33 During the Board’s meeting, the Hydes presented
evidence that, after purchasing their lot, a neighbor raised the
cul-de-sac by four feet. This resulted in a very steep declining
grade to their lot, which limited access to their property. Further,
the Board recognized that, unlike most of the properties in the
zoning district which sat on half-acre lots, the Hydes’ lot sat,
along with the other lots in the cul-de-sac, on less than one
quarter of an acre. The Hydes also explained that the setback
requirements and the existence of an abandoned well on the lot
hindered their ability to install a septic system and a variance
20150775-CA 16 2017 UT App 75Specht v. Big Water Town
would provide sufficient space to install it. The Board found that
the small size of the Hydes’ lot and the steepness of the grade
from the cul-de-sac to their lot created a hardship, which the
Hydes did not create themselves.
¶34 Specht argues this evidence is not substantial enough to
support the Board’s decision and that, because the other lots in
the cul-de-sac were also less than one quarter of an acre, the
Board could not have found that the hardship was peculiar to
the Hydes.9 We disagree. That all the lots in the cul-de-sac sat on
less than one quarter of an acre did not undermine the Board’s
finding. The question of peculiarity is viewed in the context of
the zoning district or neighborhood, not one street. See id. § 10-
9a-702(2)(b)(i)(B). The Board found that most of the lots in the
zoning district were half-acre lots that were not burdened by the
setback requirements. We conclude that the Board’s finding that
enforcing the setback requirements would create an
unreasonable hardship and that the hardship arose from
circumstances peculiar to the property was supported by
substantial evidence.
¶35 The second condition required the Board to find that
‚there are special circumstances attached to the property that do
not generally apply to other properties in the same zone.‛ Id.
§ 10-9a-702(2)(a)(ii). Section 702 further provides that ‚the
appeal authority may find that special circumstances exist only if
the special circumstances: (i) relate to the hardship complained
of; and (ii) deprive the property of privileges granted to other
properties in the same zone.‛ Id. § 10-9a-702(2)(c).
9. Specht makes other arguments based on evidence that was
elicited from Mr. Hyde in a deposition taken after the Board
made its decision. Because the Board could not have considered
this evidence and because it is not part of the administrative
record, we do not consider these arguments. See supra ¶ 25.
20150775-CA 17 2017 UT App 75Specht v. Big Water Town
¶36 Specht argues the Board’s finding that there were special
circumstances attached to the property was not supported by
substantial evidence because ‚the need*+ for a septic system and
the existence of a well on the property [were] pre-existing
conditions that were in place‛ when the Hydes purchased the
property. But this has no bearing on satisfying the second
condition. Specht further contends there is no evidence in the
administrative record ‚that any of the other property owners
needed a variance to construct their homes or install their septic
systems.‛ This cuts against Specht’s position.
¶37 The Hydes’ property was unique and its conditions
prevented them from enjoying reasonable access and installing a
septic system, unlike the other lots in the zoning district. In
making its finding, the Board relied on evidence that the Hydes
had only limited access to their property because their lot was
much lower than other lots in the zoning district, that the Hydes’
lot was smaller than most of the lots in the zoning district, and
that the Hydes ‚needed *a+ septic system, too.‛ Other property
owners in the zoning district enjoyed easy access to their lots, as
well as ample space to install septic systems. Without a variance,
the Hydes would have been deprived of similar privileges. We
therefore conclude that the Board’s finding as to the second
condition was supported by substantial evidence.
¶38 The third condition required the Board to find that
‚granting the variance is essential to the enjoyment of a
substantial property right possessed by other property in the
same zone.‛ Utah Code Ann. § 10-9a-702(2)(a)(iii) (LexisNexis
2015).
¶39 Specht does not specifically address this condition. The
Town and the Hydes argue that the administrative record
‚demonstrates that other owners . . . were able to construct
homes on single lots of a similar size, without being forced to
construct unreasonably steep driveways,‛ and that there was no
evidence in the administrative record ‚that other lots in the area
are similarly affected.‛ We agree. In addition, there is no
20150775-CA 18 2017 UT App 75Specht v. Big Water Town
evidence in the administrative record that the setback
requirements hindered other property owners’ abilities to install
septic systems. We therefore conclude there was substantial
evidence to support the Board’s finding as to the third condition.
¶40 The fourth condition required the Board to find that ‚the
variance will not substantially affect the general plan and will
not be contrary to the public interest.‛ Id. § 10-9a-702(2)(a)(iv).
¶41 As with the third condition, Specht does not specifically
address this condition, but we conclude the Board’s finding was
supported by substantial evidence. The Hydes stated in their
variance application that they had no rear neighbors who could
be affected by the variance and that the lot cannot be seen from
the main road because it sits below the cul-de-sac. The Hydes
also stated at the Board’s meeting that the health department did
not believe the variance would be a problem and provided the
Board with a letter from the health department. This evidence
was sufficient to support the Board’s finding.
¶42 Finally, the fifth condition required the Board to find that
‚the spirit of the land use ordinance is observed and substantial
justice done.‛ Id. § 10-9a-702(2)(a)(v). Once again, Specht fails to
specifically address why the Board’s finding was not supported
by substantial evidence. The purpose of the Town’s setback
requirements is not clear from the record, but setback
requirements are often used to control the density of land use,
reduce traffic congestion, maintain the aesthetics of the
neighborhood, and promote health and safety. 1 Patricia E.
Salkin, American Law of Zoning §§ 7:6, 7:8–9, 7:13 (5th ed. 2008).
¶43 The Board heard evidence that the neighboring land to
the rear of the Hydes’ lot was owned by the Utah School and
Institutional Trust Lands Administration, that their lot could not
be seen from the main road, and that the Hydes needed the
variance to reduce the steep decline grade of the driveway and
to install a septic system. Granting the variance would not be
contrary to controlling the density of the neighborhood or
20150775-CA 19 2017 UT App 75Specht v. Big Water Town
lessening traffic congestion because there were no houses or
roads abutting the Hydes’ rear boundary. To the extent that the
setback requirements had an aesthetic purpose, granting the
variance would not frustrate that purpose because the Hydes’ lot
could not be seen from the main road. Finally, granting the
variance would improve health and safety because it would
allow the Hydes to install a septic system. For these reasons, we
conclude the Board’s finding was supported by substantial
evidence.
¶44 In sum, there is ample evidence in the administrative
record ‚to convince a reasonable mind‛ that the Board’s decision
to grant the variance met all five conditions required of a
variance under the Utah Code. See Vial v. Provo City, 2009 UT
App 122, ¶ 9, 210 P.3d 947 (citation and internal quotation marks
omitted).
II. Vacation of the Cul-de-sac
¶45 Before the Council could consider a vacation at a public
hearing, the Town was required to ensure that notice was mailed
to ‚each owner of property located within 300 feet of the
property that is the subject of the proposed plat change.‛ Utah
Code Ann. § 10-9-809(1)(a) (LexisNexis 2003).10 In addition, the
Town was required to ‚give notice of the date, place, and time of
the hearing by . . . posting the notice once a week for four
consecutive weeks before the hearing in three public places in
that municipality.‛ Id. § 10-9-809(2)(b). The Council could not
grant the vacation unless it was ‚satisfied that neither the public
nor any person [would] be materially injured by the proposed
10. Section 10-9-809 has since been repealed but was the law at
the time the Council considered the vacation, and we therefore
apply it. See State v. Clark, 2011 UT 23, ¶ 13, 251 P.3d 829 (‚*W+e
apply the law as it exists at the time of the event regulated by the
law in question.‛).
20150775-CA 20 2017 UT App 75Specht v. Big Water Town
vacation . . . and that there *was+ good cause‛ to grant it. Id. § 10-
9-810(1)(b) (amended by id. § 10-9a-609(1) (LexisNexis 2015)).
¶46 The Hydes requested vacation of the Rose Garden cul-de-
sac to allow more space to grade their driveway, thus alleviating
its steep decline grade and providing them with ‚reasonable
access‛ to their property. According to the Hydes, the variance
and vacation would decrease the slope of their driveway from a
14% grade to an 8% grade. The Council was satisfied that the
Hydes’ request met the requirements of a vacation,
notwithstanding Specht’s objections, and unanimously approved
it.
¶47 Specht argues the Council’s decision is arbitrary and
capricious because the vacation lacked good cause and it
materially injured him and other residents. Specht next argues
the Town acted illegally because it did not comply with the
notice requirements.11 Specht also argues the district court erred
in characterizing the Council’s decision to grant the vacation as
an administrative, rather than legislative, action, which would
have required him to exhaust his administrative remedies before
seeking review of the Council’s decision in district court. See id.
§ 10-9a-801(1) (LexisNexis 2015).
¶48 The Town and the Hydes argue the vacation is
substantively valid. They also argue Specht lacks standing to
argue that the Town failed to comply with any notice
11. Specht points out that there is no evidence in the record that
the Hydes filed a petition seeking a vacation of the cul-de-sac
and it was therefore inappropriate for the Council to consider
the request. But the Hydes were not required to file a petition
before the Council could consider their request. ‚*T+he
legislative body . . . may, with or without a petition, consider any
proposed vacation . . . of a subdivision plat . . . .‛ Utah Code
Ann. § 10-9-808(1)(a) (LexisNexis 2003) (amended by Utah Code
Ann. § 10-9a-608(1) (LexisNexis 2015)).
20150775-CA 21 2017 UT App 75Specht v. Big Water Town
requirements because Specht attended and participated in both
the Planning and Zoning meeting and the Council’s public
hearing discussing the vacation.12
¶49 To obtain judicial review of the Council’s decision in
district court, Specht first needed to be an ‚aggrieved party;‛ in
other words, Specht needed to have standing. See id. § 10-9-
810(2) (LexisNexis 2003) (amended by id. § 10-9a-801(2)
(LexisNexis 2015)); infra ¶¶ 50–55. In addition, the court could
not review the vacation unless it had jurisdiction. We conclude
Specht lacks standing both to challenge the validity of the
vacation and to challenge the Town’s alleged failure to provide
written notice to Specht and other neighbors living within 300
feet of the cul-de-sac. Because we conclude Specht lacks
standing, we do not address the question of whether the Council
acted administratively or legislatively and thus whether the
district court had jurisdiction to review the vacation.
A. Specht Lacks Standing to Challenge the Validity of the
Vacation.
¶50 ‚In a proceeding to set aside a vacation order, a
complainant should allege that . . . he has suffered special
damages different in kind from the damage to the general
public.‛ Sears v. Ogden City, 572 P.2d 1359, 1362 (Utah 1977). Of
importance to our case, ‚[i]f means of ingress and egress
are . . . only rendered less convenient‛ by the vacation, a
complainant does not suffer special injury. Id.
12. Although it appears the Town and the Hydes did not
challenge Specht’s standing in the court below, ‚lack of standing
is jurisdictional,‛ Heath Tecna Corp. v. Sound Sys. Int’l, Inc., 588
P.2d 169, 170 (Utah 1978), and it may ‚be raised at any time by
either party or by the court,‛ Olson v. Salt Lake City School Dist.,
724 P.2d 960, 964 (Utah 1986).
20150775-CA 22 2017 UT App 75Specht v. Big Water Town
¶51 In Sears, our supreme court considered an appeal by
several Ogden residents challenging an Ogden City Council
decision to vacate a portion of one of its streets. Id. at 1360–61.
The residents argued the ordinance that approved the vacation
was invalid, in part because the vacation ‚was not in the best
interest of the general public.‛ Id. at 1361. The court held that
‚the plaintiffs had no standing to challenge the ordinance‛
where ‚*t+here was no allegation or evidence of fraud or
collusion,‛ ‚*n+one of the plaintiffs [had] suffered a special
injury different in kind to the public in general,‛ and none of the
plaintiffs’ access to their property was ‚substantially impaired.‛
Id. at 1362.
¶52 We acknowledge that Sears involved the vacation of a
street as opposed to the vacation of a cul-de-sac and was
governed by a different, albeit related section of the Utah
Municipal Code.13 But to challenge a vacation order, both
statutory schemes—the scheme in effect at the time Sears was
decided and the scheme in effect at the time Specht challenged
the Council’s decision—required that a complainant be an
‚aggrieved‛ party. Utah Code Ann. § 10-9-810(2) (LexisNexis
2003) (amended by Utah Code Ann. § 10-9a-801(2) (LexisNexis
2015)); id. § 10-9-15 (Allen Smith Co. 1973) (repealed 1992).
Although our supreme court in Sears did not specifically
13. The applicable section of the Utah Code governing the
vacation of a street at the time Sears was decided required the
administrative agency to be ‚‘satisfied that there *was+ good
cause for such . . . vacation’‛ and that it would ‚‘not be
detrimental to the general interest.’‛ See Sears, 572 P.2d at 1362
(omission in original) (quoting Utah Code Ann. § 10-8-8.1 (Allen
Smith Co. 1973) (repealed 1992)). In comparison, section 10-9-810
required the Council to be ‚satisfied that neither the public nor
any person will be materially injured . . . and that there is good
cause for the vacation.‛ Utah Code Ann. § 10-9-810(1)(b)
(LexisNexis 2003) (amended by Utah Code Ann. § 10-9a-609(1)
(LexisNexis 2015)).
20150775-CA 23 2017 UT App 75Specht v. Big Water Town
interpret the term ‚aggrieved,‛ it held that to have standing to
challenge the validity of a vacation of a street, a complainant
must suffer ‚special injury different in kind to the public in
general.‛ 572 P.2d at 1362. We likewise hold that a complainant
lacks standing to challenge the validity of a vacation of a cul-de-
sac where he has not suffered special injury different in kind
from the injury to the public in general.
¶53 Like the plaintiffs in Sears, Specht has suffered only a
minor inconvenience. At the Planning and Zoning meeting,
Specht explained that the vacation would hinder his ‚ease of
turning around‛ in the cul-de-sac. Later, at the Council’s
hearing, Specht did not complain that the vacation would
directly harm him; rather, he contended that some vehicles
would have a harder time turning around, evidenced by some
photographs allegedly showing a large delivery truck having
trouble turning around in the cul-de-sac. But at the Council’s
hearing, the Hydes stated they had spoken with ‚every
emergency agency‛ and none of them were concerned with the
sixty-foot-wide cul-de-sac. Moreover, in his brief, Specht
contends that the vacation ‚negatively impact*ed+‛ him and
other property owners. But ‚negative impact‛ does not rise to
the level of special injury, and any minor inconvenience in
turning around in the cul-de-sac is common to all drivers.
Therefore, because Specht did not demonstrate that he suffered
special injury different in kind from the public in general and his
access to the cul-de-sac was not substantially impaired, he lacks
standing to challenge the validity of the vacation.
B. Specht Lacks Standing to Challenge the Town’s Alleged
Deficiencies in Providing Notice of the Council’s Public
Hearing.
¶54 Although a complainant must allege special injury when
challenging the validity of a vacation order, he is not required to
do so ‚where the right to relief is grounded on illegal acts of the
council claimed to operate as a constructive fraud affecting the
city and its citizens.‛ Sears v. Ogden City, 572 P.2d 1359, 1362
20150775-CA 24 2017 UT App 75Specht v. Big Water Town
(Utah 1977). To have standing, Specht needed ‚to show that he
has suffered some distinct and palpable injury that gives him a
personal stake in the outcome of the legal dispute.‛ Jenkins v.
Swan, 675 P.2d 1145, 1148 (Utah 1983). ‚It is generally
insufficient for a [complainant] to assert only a general interest
he shares in common with members of the public at large.‛ Id. at
1148–49.
¶55 We conclude that Specht lacks standing to challenge the
Town’s alleged failure to provide him with written notice of the
Council’s hearing under Utah Code section 10-9-809(1)(a)
(LexisNexis 2003) (repealed 2005).14 Specht has suffered no injury
related to the Town’s alleged failure to provide proper notice.
Specht attended and participated in both the Planning and
Zoning meeting and the Council’s hearing, demonstrating that
he was aware of the gatherings. Not only did he attend and
participate, but he was prepared to address the issues discussed,
evidenced by documents and photographs. Even if Specht’s
claim that he did not receive written notice of the hearing is
true,15 he ‚has failed to adequately explain how the deficiencies
in the notice inhibited his ability to respond.‛ See Hugoe v. Woods
Cross City, 2013 UT App 278, ¶ 9, 316 P.3d 979; see also Roberts v.
City of Detroit, 216 N.W. 410, 412 (Mich. 1927) (holding that
14. Specht also complains that the Town did not provide proper
notice for the Planning and Zoning meeting, but he has
identified no law that required the Town to provide notice of
this meeting.
15. We reiterate that it is unclear from the record whether the
district court granted the Town’s rule 60(b) motion and vacated
its order granting Specht summary judgment on the vacation
issue because it concluded the newly discovered evidence was
sufficient to prove that the Town complied with the notice
requirements or whether it concluded the newly discovered
evidence presented a genuine issue as to a material fact,
rendering summary judgment inappropriate. See supra ¶ 16.
20150775-CA 25 2017 UT App 75Specht v. Big Water Town
plaintiffs could not complain of the city’s alleged failure to
provide them notice of a public hearing in which the city
approved the vacation of a street, where plaintiffs were present
and were ‚heard at every essential stage‛); 8A McQuillin,
Municipal Corporations § 25:269 (3d ed. 2010) (explaining that
notice requirements ‚have been deemed to be waived by
property owners who file written objections and attend the
hearings on the proposal‛).
¶56 In sum, we conclude Specht lacks standing to challenge
both the validity of the vacation and the Town’s alleged failure
to comply with the required notice provisions. Because Specht
lacks standing, we do not reach the question of whether the
Council acted administratively or legislatively in enacting the
ordinance to vacate the Rose Garden cul-de-sac.
CONCLUSION
¶57 The district court properly concluded the variance was
not arbitrary, capricious, or illegal when it granted the Hydes’
cross-motion for summary judgment. In addition, we conclude
that Specht lacks standing to set aside the vacation. We therefore
affirm the decision of the district court.
20150775-CA 26 2017 UT App 75