Olsen v. Park City Municipal Corporation

2016 UT App 106THE UTAH COURT OF APPEALS
DAVID OLSEN, ROSEMARY OLSEN, AND RICK MARGOLIS,
Appellants,
v.
PARK CITY MUNICIPAL CORPORATION AND
VALLEY OF LOVE LLC,
Appellees.
Memorandum Decision
No. 20141193-CA
Filed May 19, 2016
Third District Court, Silver Summit Department
The Honorable Todd M. Shaughnessy
No. 110500786
Bruce R. Baird, Attorney for Appellants
Mark Harrington and Polly Samuels McLean,
Attorneys for Appellee Park City
Municipal Corporation
Eric P. Lee and Justin J. Keys, Attorneys for Appellee
Valley of Love LLC
SENIOR JUDGE RUSSELL W. BENCH authored this Memorandum
Decision, in which JUDGES GREGORY K. ORME and STEPHEN L.
ROTH concurred. 1
BENCH, Senior Judge:
¶1 David Olsen, Rosemary Olsen, and Rick Margolis
(collectively, Appellants) challenge the district court’s grant of
summary judgment in favor of Park City Municipal Corporation
1. Senior Judge Russell W. Bench sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
Olsen v. Park City Municipal Corporation
(Park City) and Valley of Love LLC (collectively, Appellees). We
affirm.
¶2 Valley of Love owns three adjacent parcels of real
property on Empire Avenue in Park City, Utah. The two smaller
parcels, consisting of 2,221 and 1,676 square feet, border Empire
Avenue. The large parcel, consisting of 8,985 square feet, is
landlocked behind the two small parcels. The parcels are located
in a recreation commercial zone, which allows developments to
have a maximum density ratio of 1.0. 2 See Park City, Utah, Land
Mgmt. Code § 15-2.16-3(B), http://www.parkcity.org/home/
showdocument?id=220 [https://perma.cc/55MV-2R65]. However,
setback requirements made the two smaller parcels unbuildable
on their own.
¶3 In 2009, Valley of Love sought approval of a proposed
ordinance to combine the three parcels, which had not yet been
subdivided 3 for development, into a single platted lot of record.
2. A building has a density ratio of 1.0 if the total square footage
of the building is equal to the total square footage of the lot.
3. Although the word “subdivision” most commonly refers to a
division rather than an aggregation of lots, see Subdivision,
Merriam-Webster.com, http://www.merriam-webster.com/
dictionary/subdivision [https://perma.cc/B9CH-H3RP], the Park
City Land Management Code defines a subdivision as “[a]ny
land, vacant or improved, which is divided or proposed to be
divided or combined into one (1) or more Lots, Parcels, Site, Units,
plots, or interests for the purpose of offer, sale, lease or
Development,” Park City, Utah, Land Mgmt. Code § 15-15-1.266,
http://www.parkcity.org/home/showdocument?id=198 [https://
perma.cc/D8ZJ-GG7Q] (emphasis added). Thus, for purposes of
our discussion, we use the word “subdivision” and its variants
to refer to the combination of the three parcels in this case into a
single lot.
20141193-CA 2 2016 UT App 106Olsen v. Park City Municipal Corporation
Park City approved Valley of Love’s proposal and enacted
Ordinance 10-08, subdividing the three parcels into a single lot. 4
Valley of Love then sought and obtained approval of a
conditional use permit allowing it to build a multi-unit dwelling
on the lot.5
¶4 Appellants, who own property near the parcels,
challenged Ordinance 10-08 in district court, asserting that Park
City violated various provisions of the Park City Land
Management Code (LMC) by adopting the ordinance. The
4. Appellants represent Ordinance 10-08 as a lot-line adjustment,
but because the parcels had never been subdivided into lots
prior to the enactment of Ordinance 10-08, Park City’s action is
more properly termed a subdivision. Compare Park City, Utah,
Land Mgmt. Code § 15-7.1-3(D), http://www.parkcity.org/
home/showdocument?id=208 [https://perma.cc/YT7C-E8MX]
(indicating that a lot-line adjustment involves “[t]he relocation of
the Property boundary line between two adjoining Lots”), with
id. § 15-15-1.266, http://www.parkcity.org/home/showdocument?
id=198 [https://perma.cc/D8ZJ-GG7Q] (defining a subdivision as
“[a]ny land, vacant or improved, which is divided or proposed
to be divided or combined into one (1) or more Lots, Parcels, Site,
Units, plots, or interests for the purpose of offer, sale, lease or
Development” (emphasis added)). See generally id. § 15-15-1.154
(defining a lot as “[a] unit of land described in a recorded
Subdivision Plat”).
5. Appellants challenged Park City’s approval of Valley of
Love’s conditional use permit in a separate case. The district
court granted summary judgment in favor of Appellees in that
case as well, but Appellants did not appeal. Therefore, to the
extent that Appellants’ arguments appear to challenge Park
City’s approval of the conditional use permit, we do not address
them.
20141193-CA 3 2016 UT App 106Olsen v. Park City Municipal Corporation
parties filed cross-motions for summary judgment. The district
court determined that Ordinance 10-08 did not violate the LMC
and granted Appellees’ motion for summary judgment.
¶5 Appellants assert that the district court erred in
concluding that Park City’s adoption of Ordinance 10-08 did not
conflict with the LMC, and they therefore request that we
reverse the district court’s summary judgment ruling. We review
the district court’s ruling on summary judgment for correctness.
See Springville Citizens for a Better Cmty. v. City of Springville, 1999
UT 25, ¶ 22, 979 P.2d 332.
¶6 “A municipality’s land use decisions are entitled to a
great deal of deference.” Id. Thus, we reverse such decisions only
if they are “arbitrary, capricious, or illegal.” Id. ¶ 23. Appellants
argue that Ordinance 10-08 violates LMC sections 15-7-5 and 15-
7-2 and the Park City Planning Department’s “General Plan” and
that it is therefore illegal. 6
¶7 Appellants first argue that Ordinance 10-08 violates
section 15-7-5(B)(1), which provides that the LMC’s regulations
regarding subdivisions
are not intended to interfere with, abrogate, or
annul any other ordinance, rule or regulation,
statute, or other provision of law. Where any
provision of these regulations imposes restriction
different from those imposed by any other
provision of these regulations or any other
ordinance, rule or regulation, or other provision of
6. Appellees argue that ordinances cannot be rendered illegal
based on conflicts with general purpose statements such as those
contained in section 15-7-2 and the General Plan. For purposes of
our analysis, we assume, without deciding, that they can.
20141193-CA 4 2016 UT App 106Olsen v. Park City Municipal Corporation
law, whichever provisions are more restrictive or
impose higher standards shall control.
Park City, Utah, Land Mgmt. Code § 15-7-5(B)(1), http://www.
parkcity.org/home/showdocument?id=207 [https://perma.cc/
XQ5D-E9XM]. Appellants argue that Ordinance 10-08 annulled
the effects of the building ratio and setback requirements
applicable in the recreation commercial zone (the lot
requirements), see id. § 15-2.16-3, http://www.parkcity.org/home/
showdocument?id=220 [https://perma.cc/55MV-2R65], because it
subdivided the parcels into a single lot and thereby increased
their total buildable square footage, which the setback
requirements previously limited.
¶8 Appellants argue that because setback requirements
would have made the front two parcels unbuildable had they
been subdivided into individual lots, the lot requirements had
the effect of forever limiting the total buildable square footage on
the three parcels to the amount allowed on the large parcel—
8,985 square feet. They assert that the total could not be altered
even if the parcels were ultimately subdivided into a single lot.
Thus, because Ordinance 10-08 effectively increased the
buildable square footage of the parcels to 12,882 square feet—an
amount equal to the total square footage of the parcels—
Appellants argue that it conflicted with the lot requirements as
applicable prior to the subdivision and thereby violated section
15-7-5(B)(1).
¶9 Appellants refer us to no authority suggesting that the
buildable square footage of property must forever be defined by
what would have been allowed on an individual parcel of
property if it were subdivided as an individual lot. The setback
requirements only indirectly affect the buildable square footage
on a lot due to the impossibility of building a structure on a
narrow lot while complying with the setback requirements;
those requirements do not actually alter the density allowance
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for the lot. Furthermore, the lot requirements apply to lots, id.§ 15-2.16-3, and the three parcels were not lots as defined by the
LMC until they were subdivided, id. § 15-15-1.154, http://www.
parkcity.org/home/showdocument?id=198 [https://perma.cc/
D8ZJ-GG7Q] (defining a lot as “[a] unit of land described in a
recorded Subdivision Plat”). Indeed, no structure of any kind
could have been built on the parcels until they were subdivided.
Id. § 15-1-9, http://www.parkcity.org/home/showdocument?
id=7419 [https://perma.cc/84MZ-FYBS] (instructing the Planning
Department, in reviewing an application for a building permit,
to “determine whether the proposal . . . respects Lot Lines of a
legally subdivided Lot”). Thus, the lot requirements did not
come into operation with respect to the parcels until after they
were subdivided into a lot, and there is no possibility that
Ordinance 10-08 could have “interfere[d] with, abrogate[d], or
annul[led]” the lot requirements for the recreation commercial
zone. See id. § 15-7-5(B)(1), http://www.parkcity.org/home/
showdocument?id=207 [https://perma.cc/XQ5D-E9XM].
¶10 Appellants next assert that Ordinance 10-08 violates two
of the stated purposes of the subdivision provisions of the LMC,
namely, “to prevent overcrowding of the land and undue
congestion of population” and “[t]o provide the most beneficial
relationship between the Uses of land and Buildings and the
circulation of traffic, throughout the municipality, having
particular regard to the avoidance of congestion in the Streets
and highways.” Id. § 15-7-2(C), (G). Appellants argue that the
increase in the potential buildable square footage of the three
parcels created by Ordinance 10-08 violated the purposes of the
LMC to prevent overcrowding and allow circulation of traffic.
¶11 We agree with the district court that Ordinance 10-08 is
consistent with the purposes of the LMC. The fact that the
setback requirements might have resulted in an overall lower
density if the parcels had been subdivided differently does not
change the fact that the LMC allows for a 1.0 density ratio. Thus,
20141193-CA 6 2016 UT App 106Olsen v. Park City Municipal Corporation
in enacting the LMC, Park City had previously determined that
1.0 was an appropriate density for the area. Further, the fact that
zoning regulations permitted a structure of up to 12,882 square
feet to be built on the lot does not mean that such a building
would necessarily be built or that it would result in
overcrowding or traffic congestion. Had Valley of Love
employed one of the smaller allowed uses on the lot, such as a
single family home or a duplex, the overcrowding and
congestion Appellants are concerned with could not have
materialized. See id. § 15-2.16-2(A), http://www.parkcity.org/
home/showdocument?id=220 [https://perma.cc/55MV-2R65]. In
order to build the type of multi-unit dwelling that Valley of
Love ultimately sought to build, it had to obtain a conditional
use permit. Id. § 15-1-10, http://www.parkcity.org/home/
showdocument?id=7419 [https://perma.cc/84MZ-FYBS]; id. § 15-
2.16-2(B). If Valley of Love’s multi-unit dwelling, once proposed,
posed a potential overcrowding or traffic problem, then that
could be addressed—and indeed, was addressed—in the process
of approving the conditional use permit. Because Appellants
have not appealed the district court’s summary judgment ruling
regarding the conditional use permit, we do not address this
argument further. See supra note 5.
¶12 Finally, Appellants argue that Ordinance 10-08 conflicts
with the “General Plan”—Park City’s “long range policy plan”
intended to “guide future [LMC] and zoning decisions.” See [1
Goals, Objectives, Strategies] Park City, Utah, General Plan 8
(2014), http://www.parkcity.org/home/showdocument?id=12385
[https://perma.cc/HB3N-RZT8]. Specifically, the General Plan in
place at the time Ordinance 10-08 was approved provided,
The area at the base of the Park City Mountain
Resort is currently zoned Recreation Commercial.
While development associated with the ski area
itself is (and will be) very dense, the [Recreation
Commercial] area to the east has served as a
20141193-CA 7 2016 UT App 106Olsen v. Park City Municipal Corporation
transition zone to lower densities. The entire area is
currently zoned Recreation Commercial. To better
address future development in the area, the
following objectives are recommended:
Examine and make modifications to the
Recreation Commercial zone to ensure that new
structures to the east of Empire Avenue provide
skier bed base, while allowing for a transition of
scale to Park Avenue. Eliminate [the] option for
commercial uses and emphasize that commercial
uses occur at the ski resort base only.
Specify density requirements for the
[recreation commercial] zone that more closely
match what can actually be built on the parcels.
Refine design guidelines for the area to
provide the necessary transition between the
historic area and the resort area.
Appellants assert that because the subdivided lot is on the east
side of Empire Avenue, Ordinance 10-08 violated the General
Plan by granting Valley of Love “the right to develop the
property literally to the maximum scale allowed in the
[recreation commercial] zone.” (Emphasis omitted.) Based on the
General Plan, they argue, structures built on property to the east
of Empire Avenue must be smaller than those allowed to the
west of Empire Avenue in order to accomplish “the transitioning
in scale to Park Avenue.” (Emphasis omitted.)
¶13 Accepting, for purposes of our analysis, that Appellants’
interpretation of the General Plan is correct and that an
ordinance violating the General Plan would be illegal, we are not
convinced that Ordinance 10-08 violates the General Plan. First,
Ordinance 10-08 does not say anything about the buildable
square footage of the lot; it merely creates the lot and concludes
that it is “compatible with the zone and other developments in
the area.” It is the LMC’s lot requirements that ultimately define
20141193-CA 8 2016 UT App 106Olsen v. Park City Municipal Corporation
the buildable square footage of the lot, based on density
allowances for the zone. Second, to the extent that Appellants
argue that permitting Valley of Love to build its proposed multi-
unit dwelling on the lot violated the General Plan, that argument
is not before us, as it concerns the grant of the conditional use
permit, an issue that was not appealed.
¶14 Because we determine that Park City did not violate any
provision of the LMC or the General Plan in enacting Ordinance
10-08, we conclude that the ordinance is not illegal. Accordingly,
we affirm the district court’s grant of summary judgment in
favor of Appellees.
20141193-CA 9 2016 UT App 106