Hodgson v. Farmington City

2015 UT App 43_________________________________________________________
THE UTAH COURT OF APPEALS
KIA LYN FADEL HODGSON, KRISTIN LOUISE FADEL, DOUGLAS
KELLY FADEL, AND KARA FADEL BURNETT,
Plaintiffs and Appellants,
v.
FARMINGTON CITY, ERIC MILLER, AND FARMINGTON CITY
BOARD OF APPEALS,
Defendants and Appellees.
Per Curiam Decision
No. 20141125-CA
Filed February 26, 2015
Second District Court, Farmington Department
The Honorable Thomas L. Kay
No. 120701027
George K. Fadel, Attorney for Appellants
Jody K. Burnett and Robert C. Keller, Attorneys
for Appellees
Before JUDGES GREGORY K. ORME, J. FREDERIC VOROS JR.,
and JOHN A. PEARCE.
PER CURIAM:
¶1 This is the second appeal by members of the Fadel family
(the Fadels) arising from Farmington City’s (the City)
determination that the Fadels’ barn (the Barn), which is used only
as a sign, violated a number of provisions of the Uniform Code for
the Abatement of Dangerous Buildings (the UCADB), available at
https://law.resource.org/pub/us/code/ibr/icc.ucadb.1997.pdf, and
that an abatement action was required. See generally Hodgson v.
Farmington City, 2014 UT App 188, 334 P.3d 484. The district court
agreed with the City. We affirm.
Hodgson v. Farmington City
¶2 In the first appeal, the Fadels argued that the Barn is a sign
and not a building subject to the UCADB. See id. ¶ 8 (citing the
Uniform Code for the Abatement of Dangerous Buildings § 302
(1997) (providing that “any building or structure” that exhibits
“any or all of the conditions or defects” described by the UCADB
“shall be deemed to be a dangerous building”)). The Fadels argued
that in Rock Manor Trust v. State Road Commission, 550 P.2d 205(Utah 1976), the Utah Supreme Court “conclusively determined
that the Barn is a sign and that its holding makes the issue of
whether the Barn is a sign or a structure res judicata.” Hodgson,
2014 UT App 188, ¶ 9. We rejected that argument, stating that the
supreme court “determined only that the Fadels’ nonconforming
use of the Barn as a sign was not extinguished by the fire and
continued to be permitted pursuant to the Outdoor Advertising
Act’s grandfather clause.” Id. We stated that the Fadels did not
present any argument “explaining why the Barn could not be
classified as both a structure and a sign.” Id. Accordingly, we
rejected the assertion that the Barn was not subject to the UCADB.
Id.¶3 In their first appeal, the Fadels also challenged the Notice
and Order issued by the Farmington City Board of Appeals,
claiming that it was insufficient because it gave them only the
options to repair the Barn or demolish it and did not give them the
third option under the UCADB, i.e., to vacate and secure the
building against entry “‘[i]f the building does not constitute an
immediate danger to the life, limb, property, or safety of the
public.’” See id. ¶ 10 (alteration in original) (emphasis omitted)
(quoting the Uniform Code for the Abatement of Dangerous
Buildings § 403). We concluded that the Fadels “ha[d] failed to
explain how the potential remedy of vacating and securing the
Barn was even a viable option under the circumstances, let alone a
necessary one,” and we held that the Notice and Order was
sufficient. Id. We also rejected a challenge to the adequacy of the
Board’s factual findings regarding the dangerous conditions of the
Barn. Id. ¶¶ 11–12. After determining that the findings were
adequate, we concluded that the Fadels failed to satisfy their
20141125-CA 2 2015 UT App 43Hodgson v. Farmington City
burden to demonstrate that the findings were not supported by
substantial evidence in the record. Id. ¶ 13. Considering the Fadels’
final argument that the Board’s decision did not adequately
describe “the requirements to be complied with,” we concluded
that “the Board implicitly indicated its intent that the Fadels
comply with the remedies outlined in the Notice [and Order].” Id.
¶ 14. We declined to disturb the decision of the Board, previously
affirmed by the district court.
¶4 After their first appeal, the Fadels failed to comply with the
Notice and Order and stated that they would not do so absent a
further court order. The City filed a Motion to Allow Demolition of
a Dangerous Structure. On November 24, 2014, the district court
entered its Order on Farmington City’s Motion to Allow
Demolition of a Dangerous Structure (the Demolition Order), and
the Fadels filed this second appeal. Despite having prosecuted their
first appeal through the district court and this court, the Fadels
claim that the Demolition Order is “the only final appealable order
or judgment that is appealable as a matter of right” and further
claim that the appeal raises new issues not previously considered.
We disagree with both assertions. The Final Summary Judgment
and Order of Dismissal appealed by the Fadels in their first appeal
was a final appealable order. The Demolition Order enforced
compliance with the Notice and Order after the Fadels’
unsuccessful first appeal. This second appeal is therefore limited to
a review of the Demolition Order.
¶5 The City moves for summary disposition, arguing that this
appeal seeks to reargue issues determined in the first appeal. The
Fadels again argue that the Rock Manor Trust case “confirms that
the sign is a nonconforming use which survives governmental
interference” and that the City cannot take action under the
UCADB to require that it be repaired or removed. We rejected this
argument in the first appeal. Hodgson v. Farmington City, 2014 UT
App 188, ¶ 9, 334 P.3d 484. At the hearing on the motion to
demolish the Barn, the district court clarified that issues regarding
the Fadels’ alleged right to relocate or replace the sign were not
20141125-CA 3 2015 UT App 43Hodgson v. Farmington City
before the district court and were separate from issues related to
whether the Barn could be demolished as an unsafe structure.
¶6 The Fadels next argue that the “proceeding to demolish a
sign structure requires substantial due process.” In the first appeal,
we rejected arguments challenging the due process afforded to the
Fadels in the administrative and district court proceedings. Id.¶¶ 5–6. Furthermore, the Fadels were afforded due process
through the proceeding that resulted in the Notice and Order
specifically requiring repair or demolition of the Barn within
specified time frames and an appeal to the Board that included a
hearing where the Fadels had an opportunity to call and cross
examine witnesses. The Fadels then obtained judicial review by
both the district court and this court. After the first appeal, the
district court held an additional hearing on the City’s motion to
allow demolition of the Barn. The argument that the Fadels were
not afforded substantial due process lacks merit.
¶7 In this appeal, the Fadels again argue that the district court
erred in entering an order allowing demolition of the Barn rather
than allowing them to vacate and secure the Barn, which they use
only as a sign. In our earlier decision, we considered ”whether the
condition of the Barn makes it so dangerous that vacating and
securing it is an inadequate remedy.” Id. ¶ 9. We concluded that the
Fadels had failed to explain how vacating and securing the Barn
was “a viable option.” Id. In addition, we rejected an argument that
there was insufficient evidence to support the determination that
the Barn was an unsafe structure. Id. ¶ 10.
¶8 The Fadels’ argument in this second appeal that there were
genuine issues of material fact related to the dangerous condition
of the Barn is tied to a mischaracterization of the proceedings on
the motion to demolish as a summary judgment proceeding rather
than an enforcement proceeding. The district court’s only summary
judgment was affirmed in our 2014 decision in the Fadels’ first
appeal. Finally, the Fadels argue that the November 24, 2014 Order
failed to satisfy rule 52(a) of the Utah Rules of Civil Procedure by
20141125-CA 4 2015 UT App 43Hodgson v. Farmington City
failing to include findings of fact. Any factual issues regarding the
City’s right to proceed to abate the dangerous condition of the
building were resolved in the original proceedings that culminated
with our decision in the first appeal. In addition, the Fadels failed
to object to the form of the order. The proceedings on the motion
to demolish were limited to a determination of whether an order
was necessary to complete the proceedings.
¶9 The Fadels cannot reargue in this appeal issues that were
determined in Hodgson v. Farmington City, 2014 UT App 188, 334
P.3d 484. We conclude that the district court did not err in entering
the Order on Farmington City’s Motion to Allow Demolition of a
Dangerous Structure. Accordingly, we affirm.
20141125-CA 5 2015 UT App 43