UDOT v. Coalt Inc.

2016 UT App 169THE UTAH COURT OF APPEALS
UTAH DEPARTMENT OF TRANSPORTATION,
Appellee,
v.
COALT INC.,
Appellant.
Opinion
No. 20150149-CA
Filed August 4, 2016
Second District Court, Farmington Department
The Honorable John R. Morris
No. 080700367
Michael R. Carlston, Rodney R. Parker, and Robert T.
Denny, Attorneys for Appellant
Sean D. Reyes, Brent A. Burnett, and Randy S.
Hunter, Attorneys for Appellee
JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGE
GREGORY K. ORME and SENIOR JUDGE RUSSELL W. BENCH
concurred.1
ROTH, Judge:
¶1 In connection with the construction of the Legacy
Parkway Project (also known as the Legacy Highway), the Utah
Department of Transportation (UDOT) exercised its power of
eminent domain to condemn approximately sixty-five acres of
property (Parcel 84) in Davis County, Utah, that Coalt Inc.
owned. Following a four-day bench trial, the court ruled that
UDOT had authority to condemn Coalt’s land and that Coalt,
1. Senior Judge Russell W. Bench sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
UDOT v. Coalt Inc.
although entitled to compensation, was not entitled to any
incremental increase in value attributable to the Legacy Parkway
Project itself. Coalt argues on appeal that the district court erred
in deciding that UDOT had authority to condemn its property.
Alternatively, Coalt contends that if UDOT had condemnation
authority, then the court erred by not considering any enhanced
value attributable to the project in determining just
compensation for the taking of Parcel 84. We conclude that the
district court did not err when it determined that UDOT’s
condemnation of Parcel 84 was ‚a proper exercise of eminent
domain.‛ But we also conclude that the district court should
have considered the effect of the Legacy Parkway Project in
determining just compensation for the taking. Accordingly, we
remand to the district court to redetermine the amount to be
awarded to Coalt for the taking.
BACKGROUND2
¶2 Planning for the Legacy Parkway Project began over
twenty years ago with the goal of easing traffic congestion
between Salt Lake and Davis counties. The Legacy Highway was
slated for construction west of the existing interstate, and due to
its proximity to the Great Salt Lake and the lake’s ecosystem,
environmental impacts were a concern from the outset. UDOT
began acquiring land, not only to build the highway itself, but
also to mitigate the ‚environmental impacts of the construction,
operation, and maintenance of the Legacy Parkway.‛ As part of
this process, UDOT, the United States Federal Highway
Administration (the FHA), and the United States Army Corps of
Engineers (the Corps) completed a Final Environmental Impact
2. ‚On appeal from a bench trial, we review the evidence in a
light most favorable to the trial court’s findings, and therefore
recite the facts consistent with that standard.‛ Alvey Dev. Corp. v.
Mackelprang, 2002 UT App 220, ¶ 2, 51 P.3d 45 (citation and
internal quotation marks omitted).
20150149-CA 2 2016 UT App 169UDOT v. Coalt Inc.
Statement (the Final EIS) in June 2000. The Final EIS set forth in
detail the scope of the Legacy Parkway Project, including
identification of the land needed for mitigation of the
environmental impacts of the project. Notably, Parcel 84 was not
identified as part of the project in the Final EIS, although other
parcels of Coalt’s land were identified for mitigation purposes.
¶3 In January 2001, the Corps issued a Record of Decision
approving the route for the Legacy Parkway along with the
necessary federal permits. Just weeks later, several public
interest environmental groups (public interest litigants) 3 brought
suit in the United States District Court for the District of Utah,
asserting that the Final EIS did not comply with federal
environmental law and sought to vacate the permit. See generally
Utahns for Better Transp. v. United States Dep’t of Transp., 180 F.
Supp. 2d 1286 (D. Utah 2001). When the court ruled in UDOT’s
favor, the public interest litigants filed an appeal with the Tenth
Circuit Court of Appeals. While that appeal was pending, the
public interest litigants also filed an emergency motion for a
preliminary injunction, which the Tenth Circuit granted. The
preliminary injunction prohibited UDOT from ‚any further
action that will disturb the ground or vegetation in the proposed
right of way,‛ essentially bringing the project to a halt. Utahns for
Better Transp. v. United States Dep’t of Transp., Nos. 01-4216, 01-
4217, 01-4220, 2001 WL 1739458, at *5 (10th Cir. Nov. 16, 2001). In
September 2002, the Tenth Circuit ruled that portions of the
Final EIS were inadequate and remanded the case for further
review. See generally Utahns for Better Transp. v. United States
Dep’t of Transp., 305 F.3d 1152 (10th Cir. 2002). Over the next two
years, UDOT, the FHA, and the Corps completed additional
environmental reviews and subsequently put out for public
3. Initially, the public interest litigants included Utahns for Better
Transportation, Salt Lake City Mayor Rocky Anderson, and the
Sierra Club. Eventually, the group grew to include the Future
Moves Coalition, FRIENDS of Great Salt Lake, Great Salt Lake
Audubon, and the League of Women Voters of Salt Lake as well.
20150149-CA 3 2016 UT App 169UDOT v. Coalt Inc.
comment an updated Draft Supplemental Environmental Impact
Statement in December 2004. Again, Parcel 84 was not identified
as part of the project.
¶4 During the public comment period, the public interest
litigants asserted that UDOT, the FHA, and the Corps had again
failed to comply with federal environmental law, and they
threatened further litigation if UDOT did not take steps to
resolve the problems that the public interest litigants had
identified. In September 2005, UDOT and the public interest
litigants began settlement negotiations and eventually reached
an ‚Agreement in Principle‛ that would ‚resolve and settle
differences over the Legacy Parkway project.‛ That agreement,
among other things, provided for additional environmental
mitigation:
Mitigation
UDOT will acquire approximately 125 acres
of land located west of the Legacy Parkway at 500
South as long as this land is accepted by the U.S.
Army Corps of Engineers for use for mitigation for
other (non-Legacy Parkway) transportation
projects in the North Corridor. Corps approval is a
condition precedent to completion of a final
settlement.
This Mitigation Property will be managed as
nature preserve in coordination with Legacy
Nature Preserve.
Parcel 84 was a part of the acreage described in this provision.
One month later, UDOT and the FHA approved the Final
Supplemental Environmental Impact Statement (the Final
Supplemental EIS) for the Legacy Parkway Project without
including Parcel 84. At about the same time, UDOT sent a letter
to the Corps stating that the 125 acres (the Mitigation Property)
identified in the Agreement in Principle would be ‚in addition to
20150149-CA 4 2016 UT App 169UDOT v. Coalt Inc.
the mitigation proposed for *permitting+ the Legacy Parkway‛
and that ‚UDOT would like to work with the Corps . . . to
establish procedures for utilizing any excess mitigation credits
generated from this additional mitigation property‛ ‚for other
projects in the future.‛ The Corps agreed that the ‚acquisition of
the [additional] lands would be a benefit to the Legacy Nature
Preserve‛ and therefore ‚the property *could] be used to
generate wetland mitigation credit‛ that in the future could be
‚applied to a *different+ transportation project located in the
North Corridor.‛
¶5 UDOT and the public interest litigants eventually signed
the Settlement Agreement, thereby ending the years-long
litigation that had delayed the Legacy Parkway Project. The
Settlement Agreement provided,
UDOT will establish additional consolidated
offsite mitigation for transportation projects by
obtaining approximately 121 acres of mitigation
property located in the vicinity of 500 South, west
of the Legacy Parkway alignment (‚Mitigation
Property‛) . . . .
(1) The U.S. Army Corps of Engineers has
provided a letter advising that it will
allow credits from this Mitigation
Property to be used as mitigation for
transportation projects.
(2) This Mitigation Property will be
managed in coordination with the
Legacy Nature Preserve, for purposes of
a nature preserve and the property will
be subject to the same deed restrictions
as apply in the [permit] to property in
the Legacy Nature Preserve.
20150149-CA 5 2016 UT App 169UDOT v. Coalt Inc.
(3) UDOT may, with approval of the U.S.
Army Corps of Engineers, adjust the
boundaries of the Legacy Nature
Preserve by using some or all of the
Advanced Mitigation Property.
The Mitigation Property included the approximately sixty-five
acres that comprised Parcel 84. While UDOT considered
acquisition of the Mitigation Property to be integral to resolution
of the litigation and hence to the viability of the project, neither
of the federal permitting agencies—the FHA and the Corps—
required such ‚additional mitigation‛ as a condition of ‚Federal
approval of the Legacy Parkway Project or the issuance of the
necessary Federal records of decisions and permits.‛ With
support from the governor, the Utah Legislature held a special
session in November 2005 to approve UDOT’s execution of a
settlement agreement ‚to resolve all pending litigation and
potential future claims of the [public interest litigants] and allow
for the construction of the Legacy Parkway.‛ The legislature
approved the expenditure of more than $1,000,000 for the costs
of this resolution, including purchase of the Mitigation Property.
¶6 In January 2006, the FHA issued a Record of Decision
approving the Final Supplemental EIS. This Record of Decision
contained a section titled, ‚STATE OF UTAH SETTLEMENT
AGREEMENT,‛ which began, ‚After the previous litigation
delayed the project, resulting in higher construction project costs
and adverse transportation impacts, a compromise to end that
litigation and avoid future litigation was desirable.‛ The
Settlement Agreement included ‚certain design and operational
configurations‛ for the Legacy Parkway, including a ‚restriction
on large trucks,‛ the use of ‚noise-reducing pavement,‛
increasing the ‚curvature to the roadway‛ in order to ‚enhance
the parkway setting,‛ ‚meander*ing+ the alignment of the
*parkway’s+ footprint . . . *to+ reduce*+ impacts on wetlands and
other sensitive environmental features,‛ and a maximum speed
of fifty-five miles per hour—to the end that ‚the former *public
20150149-CA 6 2016 UT App 169UDOT v. Coalt Inc.
interest litigants] and other interested parties will not bring
suit.‛ In addition, this section included a subsection titled
‚Terms Not Specific to the Legacy Parkway Project,‛ which
began, ‚Although technically unrelated to Legacy Parkway,
UDOT will also undertake the following steps pursuant to the
Settlement Agreement.‛ One of those steps was that UDOT
would ‚*o+btain additional mitigation property (121 acres) west
of Legacy Parkway near 500 South to be managed for wetlands
and wildlife mitigation,‛ and the ‚*m+itigation credits for this
property will be available for other transportation projects.‛ The
Record of Decision noted that the Settlement Agreement
provided that:
[t]he 121-ac[re] parcel . . . will not be used as
mitigation for Legacy Parkway, but rather as
possible mitigation for other transportation
projects in the North Corridor, such as I-15
reconstruction. Once acquired, the site will be
managed as part of the Preserve. In a letter from
the Corps to UDOT, dated October 31, 2005, the
Corps recognized that acquisition of the site will
benefit the Preserve because the land will buffer
the Preserve from planned commercial
development that could indirectly impact wetlands
on the Preserve. The amount of wetland mitigation
credit for this additional 121-ac[res] of land will
depend on the acres of wetlands on the site and the
degree that the protection and management of the
property will increase the overall functioning of
neighboring wetlands on the Preserve.
¶7 The Corps issued a separate Record of Decision, also in
January 2006, that approved the Final Supplemental EIS. This
document also contained a section titled, ‚SETTLEMENT
AGREEMENT.‛ The Corps, like the FHA, recognized that the
Settlement Agreement included ‚certain design and operational
configurations for Legacy Parkway‛ and that additional ‚steps,
20150149-CA 7 2016 UT App 169UDOT v. Coalt Inc.
which are unrelated to the Legacy Parkway,‛ would be taken by
UDOT, including the acquisition of ‚additional 121-acre
mitigation property west of the Legacy Parkway near 500 South
to be managed for wetlands and wildlife mitigation, with credits
available for other transportation projects.‛ The Corps’ Record of
Decision also contained a paragraph that was similar to the
FHA’s, indicating that this additional acreage ‚will not be used
as mitigation for the Legacy [Parkway Project], but rather as
possible mitigation for other transportation projects in the north
corridor, such as I-15 reconstruction.‛ The Corps’ Record of
Decision also acknowledged that as a result of the Settlement
Agreement, the public interest litigants ‚will not bring suit‛
challenging the Final Supplemental EIS or any Record of
Decision or permit.
¶8 In June 2008, UDOT began proceedings to acquire Parcel
84 by eminent domain. See generally Utah Code Ann. § 78B-6-501
(LexisNexis Supp. 2015).4 UDOT asserted that the condemnation
was ‚necessary and in the public interest‛ for a state public
transportation purpose pursuant to sections 72-5-103 and 78B-6-
501 of the Utah Code. The case went to trial in March 2014.
Ultimately, the district court ruled that UDOT had ‚authority to
condemn property for the Legacy Parkway Project, as a state
transportation purpose‛; that condemning Coalt’s property
(including Parcel 84) ‚was necessary to effect a lifting of the stay
on construction of the Legacy Parkway imposed by the Tenth
Circuit Court of Appeals‛; that UDOT ‚had authority to
condemn *Coalt’s+ property‛; that ‚the taking was for a public
state transportation purpose‛; and that, therefore, ‚*g+iven the
public purpose served by *UDOT’s+ taking of *Coalt’s+ property,
the taking was not merely for the purpose of conveying a benefit
on one or more private parties,‛ i.e., the public interest litigants.
4. Because the statutory provisions in effect at the relevant times
do not differ materially from the statutory provision now in
effect, we cite the current version of the Utah Code Annotated
for convenience.
20150149-CA 8 2016 UT App 169UDOT v. Coalt Inc.
The court also found that the scope of the Legacy Parkway
Project was ‚broader‛ than the Final EIS and the Final
Supplemental EIS. Therefore, the court concluded that the taking
of Coalt’s property for the Legacy Nature Preserve was ‚within
the scope‛ of the project because ‚at some point‛ Coalt’s
property ‚would be needed‛ for the Legacy Parkway Project. In
sum, the court concluded that UDOT’s taking of Parcel 84 was ‚a
proper exercise of eminent domain‛ under sections 72-5-102(2),
72-5-102(12), and 72-5-103(1) of the Utah Code. The court further
determined that although Coalt was entitled to just
compensation for the taking, it was not entitled to compensation
for any increase in value resulting from the property’s proximity
to the Legacy Parkway Project. Coalt appeals.
ISSUES AND STANDARDS OF REVIEW
¶9 Coalt raises two issues on appeal. First, Coalt argues that
section 72-5-102(12) of the Utah Code, ‚which authorizes
condemnation for ‘the mitigation of impacts from public
transportation projects,’‛ does not authorize ‚the condemnation
of property for the sole purpose of settling ‘public interest’
litigation that is interfering with completion of a project.‛
(Quoting Utah Code Ann. § 72-5-102(12) (LexisNexis 2009).) ‚We
review questions of statutory interpretation for correctness.‛
Utah Dep’t of Transp. v. FPA West Point, LLC, 2012 UT 79, ¶ 9, 304
P.3d 810.
¶10 Coalt next argues that ‚*i+f UDOT had authority to
condemn Coalt’s property,‛ then ‚the significant positive impact
of the Legacy project on the property’s value *should+ have been
considered [by the district court] in fixing the property’s fair
market value.‛ The issue of whether to include enhancement in
value as a result of project proximity is a question of law
reviewed for correctness. Board of County Comm’rs of Tooele
County v. Ferrebee, 844 P.2d 308, 309 (Utah 1992) (reviewing
‚whether the trial court properly included an enhancement in
20150149-CA 9 2016 UT App 169UDOT v. Coalt Inc.
[property] value based on proximity to the [project]‛ for
correctness).
ANALYSIS
¶11 An appellate court’s power to review a public entity’s
decision to condemn a particular piece of property is limited. For
example, in Utah Department of Transportation v. Fuller the Utah
Supreme Court stated,
‚It may be said to be a general rule that, unless a
corporation exercising the power of eminent
domain acts in bad faith or is guilty of oppression,
its discretion in the selection of land will not be
interfered with. With the degree of necessity or the
extent which the property will advance the public
purpose, the courts have nothing to do. When the
use is public, the necessity or expediency of
appropriating any particular property is not a
subject of judicial cognizance.‛
603 P.2d 814, 817 (Utah 1979) (quoting Postal Tel. Cable Co. of Utah
v. Oregon Short Line R.R., 65 P. 735, 739 (Utah 1901)). Further,
‚*w+e do not review the internal processes of, or external
influences on, UDOT in arriving at its decision to condemn
particular properties for transportation purposes, except for
indications of bad faith.‛ Utah Dep’t of Transp. v. G. Kay, Inc., 2003
UT 40, ¶ 11, 78 P.3d 612. Here, Coalt has not alleged that UDOT
acted in bad faith or is guilty of oppression; instead, Coalt argues
that the taking of Parcel 84 was not for a public purpose and that
the condemnation was only ‚a response to a demand by private
litigants challenging the Legacy Parkway environmental
assessment.‛ UDOT does not disagree with this characterization:
‚The sole purpose for condemning Coalt’s property was to settle
litigation that had halted completion of the Legacy Parkway
Project.‛ Thus, the question then becomes whether UDOT’s
20150149-CA 10 2016 UT App 169UDOT v. Coalt Inc.
decision to condemn Parcel 84—a piece of land not required for
environmental mitigation by the federal government in either
the Final EIS or the Final Supplemental EIS for the completion of
the Legacy Highway—was done for a state transportation
purpose. Coalt has not persuaded us that UDOT’s reasons for
acquiring Parcel 84 exceed the broad reach of public purpose.
I. The Public Transportation Purpose of Parcel 84
¶12 Coalt does not dispute that the Legacy Highway Project
itself is a transportation project authorized by the state
legislature for public use and therefore within the scope of a
‚public purpose‛ for which the power of eminent domain may
be exercised. Rather, Coalt argues that ‚there was no public
purpose‛ for taking Parcel 84 by eminent domain for the Legacy
Highway Project. Coalt points us to decisions from the Utah
Supreme Court to support its assertion that, ‚[t]he condemning
authority bears ‘the burden of coming forward with the evidence
of, and the burden of persuasion to establish, its right to
condemn.’‛ (Quoting Utah State Road Comm’n v. Friberg, 687 P.2d
821, 832 (Utah 1984), and citing Salt Lake County v. Ramoselli, 567
P.2d 182, 183 (Utah 1977); Monetaire Mining Co. v. Columbus
Rexall Consol. Mines Co., 174 P. 172, 177 (Utah 1918); Tanner v.
Provo Bench Canal & Irrigation Co., 121 P. 584, 589 (Utah 1911).)
And, according to Coalt, ‚UDOT has all but admitted that it
cannot identify a public purpose‛ for taking Parcel 84 by
eminent domain, because ‚*t+he undisputed facts show that the
taking was a response to a demand by private litigants
challenging the Legacy Parkway environmental assessment‛ and
that ‚neither UDOT nor the Corps believed the property was
necessary to the project, either directly or as environmental
mitigation.‛ Coalt argues that section 72-5-103 of the Utah Code
only permits UDOT ‚to condemn real property that is necessary
for temporary, present, or reasonable future state transportation
purposes‛ and that, as a result, ‚land in excess of that needed for
a particular present or future project cannot be deemed
necessary for a state transportation purpose.‛ (Emphasis and
internal quotation marks omitted.)
20150149-CA 11 2016 UT App 169UDOT v. Coalt Inc.
¶13 The district court concluded that UDOT ‚ha*d+ authority
to condemn property for the Legacy Parkway Project, as a state
transportation purpose‛; that UDOT’s ‚taking of property,
including the property identified in the Settlement Agreement,
was necessary to effect a lifting of the stay on construction of the
Legacy Parkway imposed by the Tenth Circuit Court of
Appeals‛; that UDOT ‚had authority to condemn *Coalt’s+
property‛; that ‚the taking was for a public state transportation
purpose‛; and that ‚*g+iven the public purpose served by
*UDOT’s+ taking of [Parcel 84], the taking was not merely for the
purpose of conveying a benefit on one or more private parties.‛
The district court cited sections 72-5-102(2), 72-5-102(12), and 72-
5-103(1) of Utah’s Rights-of-way Act to conclude that UDOT’s
taking of Parcel 84 was ‚a proper exercise of eminent domain.‛
See generally Utah Code Ann. § 72-5-101 to -406 (LexisNexis
2009). Subsection (2) of section 72-5-102 provides that a ‚state
transportation purpose*+‛ includes the ‚mitigation from the
effects‛ of construction, while subsection (12) provides that a
state transportation purpose includes ‚the mitigation of impacts
from public transportation projects.‛ Further, the Rights-of-way
Act provides that UDOT ‚may acquire any real property or
interests in real property necessary for temporary, present, or
reasonable future state transportation purposes by gift,
agreement, exchange, purchase, condemnation, or otherwise.‛
Id. § 72-5-103(1). We readily conclude that the condemnation of
Parcel 84 fell within the broad public purpose encompassed by
these provisions.
¶14 The district court concluded that the condemnation of
Parcel 84 was for a public purpose because it ‚was necessary‛ as
a component of the overall plan to move the Legacy Parkway
Project forward by effectively ‚lifting . . . the stay on
construction.‛ Here, UDOT had designated that a certain
amount of the land it had acquired for the Legacy Highway
Project be set aside as the Legacy Nature Preserve and managed
for the purpose of mitigating the environmental impact of the
project on wetlands and wildlife in the area. UDOT believed that
the land already acquired and set aside for this purpose was
20150149-CA 12 2016 UT App 169UDOT v. Coalt Inc.
sufficient to mitigate the project’s anticipated effects, and the
Corps and the FHA agreed. But the public interest litigants did
not. Cf. Utahns for Better Transp. v. United States Dep’t of Transp.,
305 F.3d 1152, 1180 (10th Cir. 2002) (holding, in response to the
public interest litigants’ arguments, ‚that limiting the wildlife
impact analysis so that migratory birds are beyond its scope
renders the FEIS inadequate‛); cf. id. at 1192 (holding, in
response to the public interest litigants’ arguments, that by
limiting its ‚wildlife impact analysis . . . to consideration of
impacts within 1000 feet of the project,‛ the Corps had ‚acted
arbitrarily and capriciously in granting the [Clean Water Act]
permit‛ for the Legacy Parkway Project). And, among other
things, the public interest litigants sought to have additional
land immediately adjacent to the Legacy Nature Preserve set
aside in order to provide further environmental mitigation as a
condition of resolving the second round of project-related
environmental litigation in the federal courts. As part of the
Settlement Agreement, UDOT agreed to acquire the Mitigation
Property, which included Parcel 84, to establish additional offsite
mitigation for transportation projects, and though the acquisition
of the Mitigation Property was ostensibly unrelated to the
federal permitting process for the Legacy Parkway Project, this
property was certainly associated with it. For instance, the
Mitigation Property was to ‚be managed in coordination with
the Legacy Nature Preserve, for the purpose of a nature
preserve‛ and could later be incorporated within the preserve’s
boundaries with the approval of the Corps. Because neither
UDOT nor the Corps considered the additional property
‚technically‛ necessary to meet their own calculation of
mitigation for the project or as a condition of the required
‚Federal approval of the Legacy Parkway Project,‛ they agreed
that ‚*m+itigation credits for *the Mitigation Property] will be
available for other transportation projects.‛ The Settlement
Agreement incorporated this concept, providing that the
Mitigation Property may be ‚used as mitigation for [different]
transportation projects.‛
20150149-CA 13 2016 UT App 169UDOT v. Coalt Inc.
¶15 Further, even though the land would not officially be a
part of the Legacy Parkway Project, ‚the Corps recognized that
acquisition of the site will benefit the Preserve because the land
will buffer the Preserve from planned commercial development
that could indirectly impact wetlands on the Preserve.‛ Thus,
although beyond what the agencies themselves considered
necessary for regulatory purposes, the acquisition of the
Mitigation Property was still seen by UDOT, the FHA, and the
Corps as related both in location and environmental effect to the
Legacy Nature Preserve (a part of the Legacy Parkway Project)
and as essential to resolution of the ongoing litigation. In
addition, while UDOT and the federal agencies did not consider
the additional land necessary to comply with applicable federal
environmental regulations, the public interest litigants
apparently did consider it an integral part of the resolution of
their own concerns over the adequacy of environmental
mitigation for the project. Thus, UDOT was faced with the choice
of proceeding with litigation over the environmental impacts of
the Legacy Parkway Project, which had already produced years-
long delays and whose results could not be guaranteed, or
compromising with the public interest litigants by making
changes to the project, including an enlargement of the
functional wildlife and wetlands mitigation footprint beyond
what was needed for regulatory approval. UDOT decided to
exchange certain environmentally related changes to the project,
together with the creation of an additional mitigation area
beyond the bounds of the project, for an end to the lengthy
litigation and the burden of the uncertainty of the substance and
timing of the ultimate outcome. The side agreement with the
Corps that enabled UDOT to use the property as mitigation
credits for future projects in the area enhanced the value of the
settlement to UDOT.
¶16 Coalt does not contend that UDOT’s decision to settle the
litigation or the components of the Settlement Agreement were
unreasonable under the circumstances. Rather, Coalt argues that
the condemnation of Parcel 84—land that both UDOT and the
Corps agree was not necessary to fulfill the environmental
20150149-CA 14 2016 UT App 169UDOT v. Coalt Inc.
regulations applicable to the project—‚was a response to a
demand by private litigants challenging the Legacy Parkway
environmental assessment,‛ and thus was for the benefit of a
private party and not for an authorized public purpose. But this
characterization is far too simple a description of what was at
stake and what occurred here. After years of planning, UDOT
had finally obtained a Record of Decision and the necessary
Clean Water Act permit from the federal government to proceed
with the Legacy Parkway Project, a transportation project it
considered essential to reduce traffic congestion and meet
increasing public transportation needs in the area. Before
construction could begin, the project was halted by a lawsuit
filed in federal district court by several public interest litigants
arguing that the environmental impact of the Legacy Parkway
Project had not been adequately assessed and would likely be
significantly more substantial than the environmental studies
asserted. UDOT’s initial success in federal district court was
reversed on appeal, and an injunction effectively halted the
project for years. Eventually the Tenth Circuit Court of Appeals
ruled in favor of the public interest litigants and remanded the
matter to the district court for further review of the
environmental impact statements. On remand, as is often the
case with environmental litigation as complex as this case was, it
appears that neither UDOT nor the public interest litigants could
be assured of the outcome. Faced with the uncertainties inherent
in the circumstances and having already experienced a lengthy
and costly delay, UDOT agreed to ‚resolve and settle‛
differences with the public interest litigants regarding the
Legacy Parkway Project so that it could move forward with
highway construction. That resolution included UDOT’s
agreement to condemn an additional 121 acres of property,
including Coalt’s Parcel 84, to be preserved in its natural state
for purposes of wildlife and wetlands mitigation.
¶17 From the public interest litigants’ perspective, the
additional acreage was necessary for additional mitigation
against the environmental impacts of the Legacy Parkway
Project. From UDOT’s perspective, the acquisition was an
20150149-CA 15 2016 UT App 169UDOT v. Coalt Inc.
essential part of a settlement that permitted an important
transportation project to proceed after years of delay and, in
addition, it could be used as mitigation for anticipated future
projects in the area. And as a practical matter, because the
additional property was immediately adjacent to the Legacy
Nature Preserve, it effectively increased the environmental
mitigation area for the Legacy Parkway Project, even if not
officially part of it and even if any dispute whether it was
necessary for such a purpose was unresolved. Thus, under the
circumstances, UDOT’s decision to acquire additional property
was pervaded with public purpose and intimately related to the
viability of a public transportation project. These complexly
intertwined purposes cannot be narrowly characterized as
‚private‛ simply because the provision of the Settlement
Agreement that led to the condemnation of Coalt’s property also
met the goal of the public interest litigants to enhance the
environmental mitigation associated with a major public
transportation project. See Utah Dep’t of Transp. v. G. Kay, Inc.,
2003 UT 40, ¶ 11, 78 P.3d 612. Certainly, that aspect of the
Settlement Agreement cannot reasonably be seen as invoking the
misuse of condemnation authority to confer a private rather than
a public benefit. Rather, it fits within UDOT’s broad authority to
‚acquire any real property . . . necessary for . . . present, or
reasonable future state transportation purposes,‛ Utah Code
Ann. § 72-5-103(1) (LexisNexis 2009), including ‚the mitigation
of impacts from public transportation projects,‛ id. § 72-5-
102(12). See also Town of Perry v. Thomas, 22 P.2d 343, 346 (Utah
1933) (‚The phrase ‘public use,’ as used in the eminent domain
statute, has been given a liberal interpretation by this court.‛).
¶18 This analysis also resolves Coalt’s arguments related to
Salt Lake County v. Ramoselli, 567 P.2d 182 (Utah 1977). Coalt
quotes Ramoselli for the proposition that ‚‘[t]he question of
necessity of the taking is the functional prerogative of the
judicial system . . . . In every case, therefore, there is a judicial
question whether the taking is of such a nature that it is or may
be founded on public necessity.’‛ (Quoting Ramoselli, 567 P.2d at
183.) Coalt then asserts that this court cannot ‚fulfill its
20150149-CA 16 2016 UT App 169UDOT v. Coalt Inc.
‘functional prerogative’ to decide ‘the question of necessity’
when the project for which the project is ‘necessary’ is not
identified, and [when there is] no time line or illumination of
events that would create a time line[.]‛ In this regard, Coalt
argues that UDOT cannot state that Parcel 84 was ‚necessary‛ to
resolve the litigation surrounding the Legacy Parkway Project
and then also state that Parcel 84 was ‚excess‛ because it ‚would
be condemned for use for mitigation for other (non-Legacy
Parkway) transportation projects.‛ (Internal quotation marks
omitted.) According to Coalt, ‚*e+ither *Parcel 84+ is ‘necessary’
or it is ‘excess,’ but it cannot be both.‛ But as we have discussed,
the relationship of the acquisition of the Mitigation Property to
the Legacy Parkway Project is both direct (it is integral to
settlement of the lawsuit which had halted project construction)
and indirect (it is immediately adjacent to the project’s Legacy
Nature Preserve and, as a practical matter, extends the
environmental mitigation area for the project). The ability to use
the acreage for mitigation credit in future projects in the area5 is
not the only public purpose; rather, these purposes are
interrelated. As we have discussed, it appears that UDOT and
the federal agencies made a conscious effort to technically isolate
the Mitigation Property from the Legacy Parkway Project for
regulatory purposes in order to ensure that the land could be
credited to other projects in the area, while also recognizing its
practical benefit to the Legacy Parkway Project itself and its
5. The Corps’ agreement that the Mitigation Property ‚can be
used to generate wetland mitigation credit‛ was based on the
explicit condition that ‚mitigation credits would need to be
applied to a transportation project located in the North
Corridor.‛ And the Record of Decision noted that the Settlement
Agreement between UDOT and the public interest litigants
recognized this condition: ‚The 121-acre parcel . . . will not be
used as mitigation for Legacy Parkway, but rather as possible
mitigation for other transportation projects in the North
Corridor, such as I-15 reconstruction.‛
20150149-CA 17 2016 UT App 169UDOT v. Coalt Inc.
importance to settlement of the project-related litigation.6 See
Utah Dep’t of Transp. v. Fuller, 603 P.2d 814, 817 (Utah 1979)
(‚‘[U]nless a corporation exercising the power of eminent
domain acts in bad faith or is guilty of oppression, its discretion
in the selection of land will not be interfered with.’‛ (quoting
Postal Tel. Cable Co. of Utah v. Oregon Short Line R.R., 65 P. 735,
739 (Utah 1901))).
¶19 And in the end, implicit in the Utah Legislature’s
approval of the Settlement Agreement to ‚allow for the
construction of the Legacy Parkway‛ and the expenditures
necessary to implement its terms (including the purchase of the
Mitigation Property), was its view that this condemnation was
for a public transportation purpose. See Utah Dep’t of Transp. v.
Carlson, 2014 UT 24, ¶ 20, 332 P.3d 900 (stating that the eminent
domain statute ‚not only enumerates authorized public uses but
also includes an open-ended catchall‛ provision that
‚authorize*s+ eminent domain for all other public uses
authorized by the Legislature‛ (citation and internal quotation
marks omitted)).
¶20 Accordingly, we conclude that the district court correctly
determined that UDOT’s condemnation of Parcel 84 under the
circumstances here fulfilled a state public transportation
purpose.
II. The Valuation of Parcel 84
¶21 Coalt ‚challenges the trial court’s decision to ignore
Legacy Parkway project influence in [the] valuation of [its]
6. This is not a circumstance where, in order to settle a lawsuit
over a public project, a state agency condemns a parcel of land
physically and functionally unrelated to the project itself in
order to satisfy a litigant’s private interests, also unrelated to the
project. We have no occasion to consider the quite dissimilar
issues those circumstances might raise.
20150149-CA 18 2016 UT App 169UDOT v. Coalt Inc.
property.‛ ‚The universal rule of damages in condemnation
proceedings is one of just compensation. The condemnee [is] to
be paid only so much as will compensate him for the damages to
his property.‛ State v. Ward, 189 P.2d 113, 116–17 (Utah 1948); see
also Utah Const. art. I, § 22 (‚Private property shall not be taken
or damaged for public use without just compensation.‛).
Further, ‚any enhancement or decrease in value attributable to
the purpose for which the property is being condemned shall be
excluded in determining the fair market value of the property.‛
Redevelopment Agency of Salt Lake City v. Grutter, 734 P.2d 434, 437
(Utah 1986). However, ‚if the land currently at issue was not
within the original scope of the project but is merely adjacent
property, then an enhancement would be appropriate.‛ Board of
County Comm’rs of Tooele County v. Ferrebee, 844 P.2d 308, 311
(Utah 1992). ‚The ‘scope of the project’ test requires only a
showing that ‘during the course of the planning or original
construction it became evident that land so situated would
probably be needed for the public use.’‛ Id. (quoting United
States v. Reynolds, 397 U.S. 14, 21 (1970)).
¶22 While UDOT addressed Coalt’s first issue on appeal—
whether the condemnation of Coalt’s property was for a public
purpose—the agency made no effort to defend the district
court’s decision regarding valuation. UDOT failed to include any
response to Coalt’s arguments on this issue in its brief or any
reference to the issue at all.
¶23 In Broderick v. Apartment Management Consultants, LLC,
2012 UT 17, 279 P.3d 391, the Utah Supreme Court was
confronted with an analogous briefing circumstance. In
Broderick, an arson-caused fire resulted in property damage and
personal injury to residential tenants of an apartment complex
who subsequently alleged that the negligence of the
management company contributed to their damages. Id. ¶¶ 1, 3–
4. The district court granted summary judgment in favor of the
management company and concluded that an exculpatory clause
contained in the lease was ‚valid and enforceable‛ and
‚waiv*ed+ the right [of the tenants] to bring an action for
20150149-CA 19 2016 UT App 169UDOT v. Coalt Inc.
negligence [against the management company].‛ Id. ¶ 1 (internal
quotation marks omitted). On appeal, the tenants argued that the
exculpatory clause was unenforceable because it ‚violate*d+
Utah’s public policy of encouraging landlords to act with care‛
and was against the public interest. Id. ¶¶ 2, 6. But the supreme
court noted that the management company (the appellee)
‚ignore*d+‛ the tenants’ ‚main arguments on appeal‛ and
‚*i+nstead of addressing‛ the tenants’ arguments, chose to focus
its response on other areas of the law. Id. ¶ 6. The court noted
that rule 24(a) of the Utah Rules of Appellate Procedure
‚requires that the argument section of a brief contain the
contentions and reasons of the appellant with respect to the
issues presented . . . with citations to the authorities, statutes,
and parts of the record relied on‛ and that a brief ‚must provide
the reasoning and legal authority that will assist this court in
resolving th*e+ concerns on appeal.‛ Id. ¶ 9 (alteration and
omission in original) (citations and internal quotation marks
omitted). The court then stated that
Rule 24(b) makes the requirements of rule
24(a) applicable to the brief of the appellee.
Accordingly, we expect that both appellants and
appellees will adhere to the standard of legal
analysis set forth in rule 24(a). In addition, we also
require the brief of the appellee [to] contain the
contentions and reasons of the appellee with
respect to the issues presented in the opposing
brief.
Under our rules of appellate procedure, we
need not address briefs that fail to comply with
rule 24. Specifically, rule 24(k) states that [b]riefs
which are not in compliance may be disregarded or
stricken, on motion or sua sponte by the court. And
we have discretion to not address an inadequately
briefed argument.
20150149-CA 20 2016 UT App 169UDOT v. Coalt Inc.
Id. ¶¶ 10–11 (alterations in original) (citations, footnotes, and
internal quotation marks omitted). Accordingly, the supreme
court ‚reject*ed+‛ the management company’s brief ‚because
of . . . inadequate briefing of the issues raised‛ by the tenants on
appeal and, accordingly, accepted the tenants ‚plausible
arguments.‛ Id. ¶¶ 12–13, 18–21.
¶24 The same reasoning applies here. UDOT did not mention
the issue of Parcel 84’s valuation either in its brief as the
appellee. In light of UDOT’s failure to make any attempt to
defend its position, this court is left with the burden of
developing an argument in response, a burden ‚*w+e will not
assume.‛ See id. ¶ 9 (‚Indeed, a reviewing court is not simply a
depository in which [a] party may dump the burden of
argument and research, and, accordingly, [w]e will not assume a
party’s burden of argument and research.‛ (alterations in
original) (citations and internal quotation marks omitted)). But
because there is an institutional interest in the finality of the
district court’s decision independent from the interests of the
litigants, we are generally more willing to affirm in the face of
inadequate briefing than we are to reverse. Cf., e.g., West Valley
City v. Majestic Inv. Co., 818 P.2d 1311, 1313 n.1 (Utah Ct. App.
1991) (‚We remind counsel that it is our prerogative to affirm the
lower court decision solely on the basis of failure to comply with
the Utah Rules of Appellate Procedure.‛). Where reversal is an
option, we might first consider whether the appellant’s
arguments for overturning the district court’s ruling are
themselves visibly deficient or whether the lower court’s own
explanation of the basis for its decision is itself strong enough to
fill the void in the appellee’s briefing and carry the day,
especially in a case of significant import.
¶25 The district court’s explanation of its decision here,
whether ultimately right or wrong, is not extensive and has been
competently called into question by Coalt’s arguments on
appeal. See Salt Lake County v. Butler, Crockett & Walsh Dev. Corp.,
2013 UT App 30, ¶ 36, 297 P.3d 38 (limiting Broderick to cases
where the appellant made a legally plausible claim on appeal).
20150149-CA 21 2016 UT App 169UDOT v. Coalt Inc.
The district court based its conclusion that Coalt was not entitled
to benefit from any enhanced value accruing from the project
itself on UDOT’s argument that Parcel 84 was not ‚part of the
Legacy Project.‛ The court relied upon Board of County
Commissioners of Tooele County v. Ferrebee, 844 P.2d 308, 311–12
(Utah 1992), and that opinion’s discussion of the ‚scope of the
project test‛ to conclude that ‚it *was+ evident that *Coalt’s+
property at some point would be needed for the Legacy
Parkway Project‛ and that ‚*t+he taking was within the scope of
the Legacy Parkway Project.‛
¶26 In Ferrebee, Tooele County planned to build an airport
whose original design plan called for condemnation of an
eighty-acre parcel of Ferrebee’s land, which included the parcel
at issue in the case. Id. at 309. Initially, the county acquired only
thirty-seven of the acres by condemnation, and, due to
budgetary constraints, approximately a decade passed before the
county had funds to acquire the remaining land. Id. at 309–10.
The district court awarded Ferrebee compensation for the
remaining property based on his appraisal, which included ‚an
enhancement [in value] of 125 percent based upon proximity to
the airport.‛ Id. at 310. The Utah Supreme Court held that the
district court should not have included in the award any
enhancement in value based upon proximity to the airport
because Ferrebee’s land was within the original scope of the
project’s design (although it had taken several years to actually
acquire it). Id. at 312 (requiring that for a condemnation award to
include an increment of enhanced value from the project itself
that ‚the land [not] be within the scope of the original project‛
(emphasis omitted)).
¶27 Coalt contends that the district court’s reliance on Ferrebee
in concluding that Parcel 84 was within the scope of the Legacy
Highway Project is misplaced because ‚the subject property *in
Ferrebee+ was always within the scope of the project,‛ while
Parcel 84 was not added to the Legacy Parkway Project until
well after the design of the project was complete—in fact, it had
become the basis for the Final EIS. Additionally, and quite
20150149-CA 22 2016 UT App 169UDOT v. Coalt Inc.
persuasively, Coalt argues that ‚UDOT should not be permitted
to repeatedly state that [Parcel 84] is unrelated to the Legacy
Parkway in order to preserve a bargaining chip with the Corps
[for the purpose of mitigation credit on future projects], and then
switch positions when compensation is the issue.‛ As a
corollary, Coalt points out that ‚*i+f *Parcel 84] had been
condemned as part of whatever future project it may eventually
mitigate, then it would be clear that the influence of the
property’s proximity to Legacy Parkway and the Legacy Nature
Preserve would have to be considered in setting its value.‛
According to Coalt, the question ‚is whether *Parcel 84 was]
probably within the scope of the project from the time [UDOT]
was committed to it,‛ and if it was not, but, instead, ‚merely
adjacent‛ to the Legacy Parkway Project, then ‚the subsequent
enlargement of the project to include [Parcel 84] . . . ought not to
deprive [Coalt] of the value added in the meantime by the
proximity of the improvement.‛ (Citing United States v. Reynolds,
397 U.S. 14, 17 (1970).) Therefore, according to Coalt, ‚*f+or
compensation to be fair and just, it must reflect the fair value of
the land to the landowner,‛ with the effect of the project taken
into account. (Citing Utah State Road Comm’n v. Friberg, 687 P.2d
821, 828 (Utah 1984).)
¶28 Coalt’s argument appears on its face to be a reasonable
critique of the district court’s decision, and although a response
from a motivated opponent might undermine its plausibility, no
such response has been offered by UDOT. See Butler, Crockett
& Walsh Dev. Corp., 2013 UT App 30, ¶ 36. Under the
circumstances, then, we ‚may . . . treat such a failure . . . as an
acknowledgment of the statement of facts contained in
appellants’ brief, and also indulge a strong inference that the law
is as cited and argued by appellants’ counsel.‛ See Fitzgerald v.
Salt Lake County, 449 P.2d 653, 654 (Utah 1969) (footnote
omitted).
¶29 Accordingly, we view the institutional interest of
preserving the finality of the district court’s ruling in this case to
be at low ebb. We therefore reverse the district court’s valuation
20150149-CA 23 2016 UT App 169UDOT v. Coalt Inc.
decision and remand for the court to redetermine just
compensation for the property at issue, taking into account any
increase in value that may be attributable to the Legacy Parkway
Project.
CONCLUSION
¶30 We conclude that the district court did not err in holding
that the condemnation of Parcel 84 was for a public
transportation purpose. We also conclude that the district court
erred regarding the valuation of Parcel 84 and, accordingly, we
remand to the district court to determine the land’s value
consistent with our decision.
20150149-CA 24 2016 UT App 169