Northern Monticello Alliance v. San Juan County

2020 UT App 79THE UTAH COURT OF APPEALS
NORTHERN MONTICELLO ALLIANCE LLC,
Appellant,
v.
SAN JUAN COUNTY, SAN JUAN COUNTY COMMISSION, SUSTAINABLE
POWER GROUP LLC, AND LATIGO WIND PARK LLC,
Appellees.
Opinion
No. 20180225-CA
Filed May 21, 2020
Seventh District Court, Monticello Department
The Honorable Lyle R. Anderson
No. 170700006
J. Craig Smith, Jennie B. Garner, and Jay L. Springer
Attorneys for Appellant
Barton H. Kunz II, Paul W. Shakespear, and
Elizabeth M. Brereton, Attorneys for Appellees
JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGE DAVID N. MORTENSEN concurred. JUDGE MICHELE M.
CHRISTIANSEN FORSTER concurred in the result, with opinion.
ORME, Judge:
¶1 Northern Monticello Alliance, LLC (NMA) appeals the
district court’s grant of summary judgment in favor of
Appellees. The court ruled that the San Juan County
Commission properly remedied NMA’s due process deprivation
by allowing NMA to be heard even though it had no
opportunity to present its own evidence. We reverse.
Northern Monticello Alliance v. San Juan County
BACKGROUND 1
¶2 In 2012, 2 the San Juan County Planning and Zoning
Commission (the Planning Commission) issued a conditional use
permit (CUP) to Wasatch Wind Intermountain, LLC (Wasatch
Wind) allowing for the construction of a wind farm in San Juan
County. 3 Owners of undeveloped land near the wind farm, who
formed NMA, were not at the hearing when the Planning
Commission granted the CUP. At a later hearing to consider
amending the CUP, NMA opposed the CUP but withdrew its
opposition after entering into a land purchase option agreement
with Wasatch Wind. The Planning Commission issued an
amended CUP to Wasatch Wind, after which Sustainable Power
Group, LLC (sPower) acquired the wind farm. 4
1. In reviewing a grant of summary judgment, we recite the
undisputed facts. To the extent that the facts are disputed, “we
recite the disputed facts in a light most favorable to the
nonmoving party.” Begaye v. Big D Constr. Corp., 2008 UT 4, ¶ 5,
178 P.3d 343.
2. This case has a long and convoluted procedural history. We
forgo reciting all that history and recite only the facts relevant to
our ultimate holding in the current appeal.
3. The wind project in question is owned by Latigo Wind Park,
which was originally a subsidiary of Wasatch Wind, and which
was later sold to Sustainable Power Group, LLC. For ease of
reference, we refer to actions taken by Latigo Wind Park as
actions taken by the parent corporation that owned it at the
relevant time.
4. NMA believed that sPower was required, under the amended
CUP and after purchasing the wind farm from Wasatch Wind, to
(continued…)
20180225-CA 2 2020 UT App 79Northern Monticello Alliance v. San Juan County
¶3 After receiving complaints that sPower was not
complying with the amended CUP, the Planning Commission
held a hearing, following which it decided against revoking the
amended CUP. At this hearing, the Planning Commission did
not allow NMA to submit evidence or participate in any
meaningful way.
¶4 NMA appealed the Planning Commission’s decision to
the County Commission, which sat as the land use appeal
authority. See Utah Code Ann. § 17-27a-701(1) (LexisNexis
2017); 5 San Juan County Zoning Ordinance § 2-2(1) (2011). The
County Commission initially reversed the Planning
Commission, concluding that the Planning Commission did not
rely on sufficient evidence in its decision. The County
Commission remanded the case and “instruct[ed] the [Planning]
Commission to allow NMA to be heard.” After this decision to
remand, sPower sent an ex parte letter to the County
Commission asking it to reconsider its decision, claiming that the
County Commission’s decision would “result in damages to
sPower in excess of $100 million.” The letter stated that sPower,
“frankly, considers” the action of the County Commission “to be
arbitrary and capricious” and “requests that the County
[Commission] agree to reconsider [its] [o]rder, and issue an
amended order, no later than” the end of business in just four
days. The County Commission reconsidered its order, reversed
(…continued)
exercise the purchase option and purchase the members’
property once construction began on the wind turbines.
5. Because the statutory provisions in effect at the relevant time
do not differ in any way material to our analysis from those now
in effect, we cite the current version of the Utah Code for
convenience.
20180225-CA 3 2020 UT App 79Northern Monticello Alliance v. San Juan County
itself, and upheld the Planning Commission’s decision—all
without hearing argument or taking evidence from NMA.
¶5 NMA sought judicial review in the district court. See Utah
Code Ann. § 17-27a-801(2) (LexisNexis Supp. 2019); San Juan
County Zoning Ordinance § 6-7 (2011). After hearing argument,
the court remanded the case to the County Commission. It ruled,
with our emphasis, that because “NMA did not have the same
opportunity [as sPower] to argue its side of the case with regard
to [sPower’s] evidence or to present its own evidence,” the County
Commission’s ruling did not “comply with basic due process”
and thus was not “valid.”
¶6 On remand, the County Commission allowed NMA to
brief the issues and to participate in oral argument, but contrary
to the district court’s specific reference to the “opportunity . . . to
present its own evidence,” NMA was again forbidden from
presenting “any additional evidence not already in the record”
because the County Commission claimed that “the purpose of
[the] rehearing was solely to consider sPower’s request for
reconsideration.” The County Commission again upheld the
Planning Commission’s decision not to revoke the amended
CUP.
¶7 NMA returned to the district court, seeking review of the
latest County Commission decision. After receiving motions for
summary judgment from both sides, the district court denied
NMA’s motion and granted Appellees’ motion. In its ruling, the
court stated that it
expected that on remand the county commission
would remedy its denial of due process to NMA by
giving it a chance to respond to sPower’s . . . letter
. . . and to evaluate those arguments and consider
any evidence in the record that NMA would want
to call to the county commission’s attention in
20180225-CA 4 2020 UT App 79Northern Monticello Alliance v. San Juan County
evaluating whether it should have reconsidered its
decision. (The Court did not mean for the county
commission to take evidence if it hadn’t taken
evidence in the first place.) The Court hasn’t read
anything in the memoranda or heard anything at
argument that persuades it that the county
commission didn’t do what the Court expected it
to do.
¶8 NMA now appeals the district court’s ruling.
ISSUE AND STANDARD OF REVIEW
¶9 NMA argues that the district court erred in granting
summary judgment to Appellees, thereby upholding the County
Commission’s decision, and that the court should have
remanded the case “to conduct a plenary evidentiary hearing
with instructions to allow NMA to participate and submit
evidence on why the amended CUP should be revoked, as
required by the Due Process Clause of the United States and
Utah Constitutions.” “We review a district court’s decision to
grant summary judgment for correctness, granting no deference
to the district court’s conclusions.” Gillmor v. Summit County,
2010 UT 69, ¶ 16, 246 P.3d 102 (quotation simplified).
ANALYSIS
¶10 First, we must address whether NMA even had due
process rights in the course of these proceedings. Appellees
argue, quoting Petersen v. Riverton City, 2010 UT 58, 243 P.3d
1261, that “to state a cognizable substantive or procedural due
process claim, a party must first allege sufficient facts to show a
property or liberty interest warranting due process protection,”
id. ¶ 21 (quotation simplified), and that “there is no property
right in the enforcement of zoning laws against others that
20180225-CA 5 2020 UT App 79Northern Monticello Alliance v. San Juan County
would give rise to the due process right NMA claims.” While
this precept may generally be true—which we do not decide in
this case—Appellees overlook that NMA’s members had due
process rights granted by statute and local ordinance in this
situation.
¶11 The Legislature has instructed that “any person adversely
affected by the land use authority’s decision administering or
interpreting a land use ordinance may . . . appeal that decision,”
Utah Code Ann. § 17-27a-703(1) (LexisNexis 2017), and the
“appeal authority shall respect the due process rights of each of
the participants,” id. § 17-27a-706(2). The applicable county
ordinance states that in issuing CUPs, the Planning Commission
must impose “requirements and conditions as are necessary for
the protection of adjacent properties and the public welfare.” San
Juan County Zoning Ordinance § 6-4 (2011) (emphasis added).
And the Planning Commission cannot issue a CUP unless
“evidence [is] presented . . . to establish” that the use of the land
“will not . . . be . . . injurious to property or improvements in the
vicinity.” Id. The ordinance then provides that “[a]ny person
aggrieved by a decision of the Planning Commission . . .
regarding the issuance, denial or revocation or amendment of a
[CUP] may appeal such decision to the [County Commission],”
id. § 6-7, which “shall respect the due process rights of all
participants,” id. § 2-2(2)(f).
¶12 NMA has shown that its members are adversely affected
or aggrieved because (1) the wind farm was built next to their
properties, significantly affecting their use and enjoyment
thereof; (2) the wind farm adversely affects their properties’
value; and (3) this injury could be remedied by their requested
relief, i.e., revocation of the amended CUP. See Morra v. Grand
County, 2010 UT 21, ¶ 15, 230 P.3d 1022 (holding that a “person
adversely affected by a land use authority’s decision” is one that
has “(1) adequately alleged a personal injury resulting from a
land use decision, (2) adequately alleged a causal relationship
20180225-CA 6 2020 UT App 79Northern Monticello Alliance v. San Juan County
between the decision and the alleged injury, and (3) requested
relief that is substantially likely to redress the alleged injury”).
Appellees concede that NMA is an adversely affected party
because NMA was “entitle[d] to appeal the [P]lanning
[C]ommission’s decision not to revoke sPower’s permit to the
[C]ounty [C]ommission.” But Appellees attempt to splice the
proceedings into two distinct segments, claiming that while
NMA may have “had a due process right to be heard on
sPower’s reconsideration request” before the County
Commission, it did not have “a due process right to be heard at
sPower’s revocation hearing.” We are unpersuaded.
¶13 We fail to see how an adjacent landowner with the right
to appeal a land use decision and be afforded due process rights
by the appeal authority would not also necessarily be afforded
due process rights throughout the entirety of the proceeding.
Indeed, the appeal authority is required to “respect the due
process rights” of adversely affected parties, Utah Code Ann.
§ 17-27a-706(2), and it cannot uphold those rights if the party
was denied due process in the pivotal initial stages of the
proceeding. Otherwise, the appeal authority will be reviewing a
proceeding in which the adversely affected party was unable to
present evidence or be properly heard—a meaningless exercise.
Any review of the prior proceeding in such a scenario would,
therefore, be slanted in favor of the other party’s position
because only evidence favorable to that party will have been
received. If Appellees’ view were correct, any adversely affected
or aggrieved party could be muzzled at an initial hearing and
barred from presenting evidence to counter its opponent’s
evidence, and then the appeal authority would be essentially
powerless to overturn the initial decision because there would be
no contrary evidence in the record.
¶14 The appeal authority cannot, therefore, respect the due
process rights of the adversely affected party in this scenario
because any review would be illusory. Indeed, the statutory
20180225-CA 7 2020 UT App 79Northern Monticello Alliance v. San Juan County
scheme, when considered in conjunction with the county zoning
ordinance, convinces us that adjacent land owners who are
adversely affected or aggrieved by a land use decision have due
process rights at each stage of the process because the statutes
and ordinances clearly provide protections to adjacent property
owners who are harmed by a CUP from the beginning—not just
on appeal. See San Juan County Zoning Ordinance § 6-4; id.
§ 1-5(19) (stating that for a CUP to be approved, “certain
conditions are required that mitigate or eliminate the
detrimental impacts” of that use). And a scheme designed to
protect and mitigate injury to adversely affected or aggrieved
adjacent landowners, but does not give them the ability to
properly present their evidence, is no protection at all.
¶15 Thus, as an adversely affected or aggrieved party, NMA
had the right to appeal the Planning Commission’s initial
decision not to revoke the amended CUP, see Utah Code Ann.
§ 17-27a-703(1); San Juan County Zoning Ordinance §§ 2-2, 6-7,
and thus should have been afforded the “due process rights” to
which adversely affected or aggrieved parties are entitled
throughout the proceedings by statute and local ordinance, Utah
Code Ann. § 17-27a-706(2); San Juan County Zoning Ordinance
§ 2-2(2)(f). 6
6. We note that to uphold a land use body’s decision, courts
must “determine[e] whether substantial evidence supports the
[body’s] decision” and in doing so must “consider all the
evidence in the record, both favorable and contrary to the [body’s]
decision.” Patterson v. Utah County Board of Adjustment, 893 P.2d
602, 604 (Utah Ct. App. 1995) (emphasis added). If we were to
adopt Appellees’ argument that NMA did not have a right to
present evidence in the early stages of the proceeding, then it
would not be possible for a court to consider both favorable and
contrary evidence in this case because the only evidence
(continued…)
20180225-CA 8 2020 UT App 79Northern Monticello Alliance v. San Juan County
¶16 “Due process requires, at a minimum, adequate notice
and an opportunity to be heard in a meaningful manner.” Salt
Lake City Corp. v. Jordan River Restoration Network, 2012 UT 84,
¶ 111, 299 P.3d 990 (quotation simplified). This typically requires
that “parties [have] the opportunity to present evidence,
objections, and arguments, to the end that the court may be
enabled to fairly and intelligently pass upon and determine the
questions presented for decision.” Id. (quotation simplified).
¶17 Here, NMA was denied due process under the statute and
county ordinance because it was never provided an opportunity
to present its evidence of sPower’s alleged failure to comply
with the amended CUP, which was critical to the ultimate
decisions of both the Planning Commission and the County
Commission. In its original order, the district court correctly
recognized that “[t]he County’s procedures must still comply
with basic due process in order to be valid” and explicitly
contemplated that the County Commission would remedy
NMA’s deprivation of due process by (1) allowing NMA “to
argue its side of the case” and (2) allowing NMA “to present its
own evidence.” On remand, the County Commission did not
comply with these instructions from the district court. The
County Commission allowed NMA to be heard—to argue—but
did not allow it to present its evidence that sPower was not
complying with the amended CUP.
¶18 NMA then again sought judicial review of the County
Commission’s decision in the district court. This time the court
(…continued)
presented would be favorable to the County Commission’s and
Planning Commission’s decisions. The relevant statutes and
zoning ordinances could not have meant to foreclose contrary
evidence from being placed in the record, thereby precluding
meaningful judicial review.
20180225-CA 9 2020 UT App 79Northern Monticello Alliance v. San Juan County
stated that it “did not mean for the county commission to take
evidence if it hadn’t taken evidence in the first place” 7 and
opined that NMA’s due process rights were vindicated. We are
not convinced. It appears that the district court recast what it did
in its original order to ratify the due process deprivation that it
had earlier condemned and sought to rectify. In the original
order, the court explicitly found that NMA was not afforded due
process and remanded to the County Commission to remedy
that error by allowing NMA to (1) be heard and (2) present its
own evidence, which it was never allowed to do at any stage of
the proceeding. This first ruling was manifestly correct.
¶19 NMA was denied its due process rights because it was
never provided “an opportunity to be heard in a meaningful
manner” by being given “the opportunity to present evidence,”
which was critical to determining the ultimate question of
whether sPower was complying with the amended CUP. See
Jordan River, 2012 UT 84, ¶ 111 (quotation simplified). We
therefore remand to the district court and instruct it, in the event
it does not stay the proceedings, 8 to remand the case to the
7. It may well be that the district court did not mean that the
County Commission itself had to take evidence—as an appellate
body in the land use planning scheme of things, it may not be
positioned to do so. But if the County Commission was unable to
take that evidence, then the County Commission should have
remanded the matter to the Planning Commission to receive
NMA’s evidence.
8. We were informed at oral argument that there is separate
pending litigation regarding the option to purchase agreement
between the parties. As we understand it, if NMA is successful
in that action, it will essentially moot this administrative
proceeding because sPower would be required to acquire
NMA’s property, resulting in NMA losing its standing in this
(continued…)
20180225-CA 10 2020 UT App 79Northern Monticello Alliance v. San Juan County
County Commission for it to take evidence from NMA as
previously mandated or, if it is not in a position to itself receive
the evidence, to in turn remand to the Planning Commission so
that it can do so. With this evidence of record, the County
Commission will then be positioned to appropriately reconsider
its decision upholding the Planning Commission’s decision not
to revoke the amended CUP in light of that evidence.
CONCLUSION
¶20 The district court erred in granting Appellees’ motion for
summary judgment because the County Commission did not
follow the court’s initial mandate and provide NMA the
opportunity to present evidence. We therefore reverse the
summary judgment and remand for further proceedings
consistent with this opinion.
CHRISTIANSEN FORSTER, Judge (concurring in result):
¶21 I agree with the majority that NMA, comprised of
adversely affected persons, had the right to appeal the adverse
decisions of the County Commission to the district court. I also
ultimately agree that NMA had a due process right to be heard
and participate in the Planning Commission’s hearing on
(…continued)
case. It was suggested at oral argument that perhaps this
proceeding should be stayed pending the resolution of that
litigation. But we are not in the best position to consider the
suggestion. The district court, however, has the prerogative,
should it be persuaded that it is the sensible thing to do, to stay
this proceeding pending resolution of that potentially dispositive
litigation.
20180225-CA 11 2020 UT App 79Northern Monticello Alliance v. San Juan County
whether to revoke the amended CUP, but I do not think that
NMA’s right to due process is grounded in the right to appeal,
as the majority does.
¶22 But before turning to that question, I think it relevant to
note that I do not believe that the district court actually ruled on
the question of whether NMA had a due process right to be
heard at the revocation hearing. The first time NMA sought
judicial review in the district court, the court’s ruling and the
basis of its grant of summary judgment to NMA was primarily
concerned with whether NMA was granted due process with
respect to sPower’s ex parte motion for reconsideration of the
County Commission’s reversal of its initial decision, not whether
it was granted due process before the Planning Commission.
Specifically, the first time the district court considered NMA’s
challenge to the County Commission’s ruling, it determined that
the County Commission had not afforded due process to NMA,
because “the County based its decision on an ex parte
communication. NMA received neither notice of the letter nor an
opportunity to be heard in opposition.” The district court
remanded the case to the County Commission to give NMA the
chance to respond specifically to the motion for reconsideration.
¶23 After the district court’s first ruling, NMA requested
remand to the Planning Commission so that it could have a
chance to present evidence on whether sPower had complied
with the mitigation requirements in the amended CUP. But the
County Commission’s Amended Decision on Remand declined
to remand the appeal to the Planning Commission, explaining,
“[W]e no longer view such a remand as helpful because now its
sole purpose would be to allow NMA to comment, which we
have determined is not a right that the Planning Commission
was obligated to recognize.” When it sought judicial review in
the district court a second time, NMA challenged this
determination in its motion for summary judgment.
20180225-CA 12 2020 UT App 79Northern Monticello Alliance v. San Juan County
¶24 But in ruling on the motions for summary judgment, the
district court again focused on the due process to which NMA
was entitled in connection with the County Commission’s
reconsideration of its initial decision. The district court
explained,
[W]hat I said the County had to do, was to give
[NMA] a chance to respond to the motion,
essentially a motion to reconsider that was filed by
sPower, and evaluate those arguments and
consider—I may have said something about taking
evidence, but I did not mean for the County to take
evidence if it hadn’t taken evidence in the first
place.
Once again, the district court did not specifically address NMA’s
due process arguments related to its exclusion from the Planning
Commission’s revocation hearing, though the district court
denied NMA’s motion for summary judgment, which was
premised in part on that argument.9
¶25 We frequently decline to consider issues that have not
first been addressed by the district court. However, Appellees
have not suggested that we should do so under the
circumstances of this case, and indeed, as the deprivation of due
process question is a matter reviewed for correctness, we are in
as good a position as the district court to rule on the issue. See
9. In its Order Denying Petitioner’s Motion for Summary
Judgment and Granting Respondents’ Cross-Motion for
Summary Judgment, the district court specifically ruled, “The
Court therefore DENIES NMA’s motion for summary judgment
and GRANTS the County’s cross-motion for summary
judgment. This order fully resolves all claims at issue in this
matter and serves as the Court’s FINAL JUDGMENT.”
20180225-CA 13 2020 UT App 79Northern Monticello Alliance v. San Juan County
Salt Lake City Corp. v. Jordan River Restoration Network, 2012 UT
84, ¶ 47, 299 P.3d 990 (“Constitutional issues, including
questions regarding due process, are questions of law that we
review for correctness.” (quotation simplified)); see also Pacific
West Cmtys., Inc. v. Grantsville City, 2009 UT App 291, ¶ 20, 221
P.3d 280 (“When a district court reviews an order of a local land
use authority and we exercise appellate review of the district
court’s judgment, we act as if we were reviewing the land use
authority’s decision directly, and we afford no deference to the
district court’s decision.” (quotation simplified)).
¶26 While I ultimately agree with the majority that NMA was
deprived of its due process rights when it was not permitted to
be heard or participate in the Planning Commission’s revocation
hearing, I reach this conclusion for different reasons. The
majority determines that the right of appeal granted to those
adversely affected by the Planning Commission’s decision not to
revoke a CUP and the due process rights required to be
respected by the appeal authority necessarily include the right to
participate and present evidence at the revocation hearing itself.
See supra ¶ 13. But the right to appeal from a decision of a
planning commission is purely procedural and does not give rise
to due process protection. See Fusco v. Connecticut, 815 F.2d 201,
205–06 (2d Cir. 1987) (“The opportunity granted abutting
landowners . . . to appeal decisions of planning and zoning
commissions and zoning boards of appeal is purely procedural
and does not give rise to an independent interest protected by
the [F]ourteenth [A]mendment.”). Thus, I disagree that the
appellate rights guaranteed by state law and the San Juan
County Zoning Ordinances are what give rise to a protectable
property interest and due process rights for NMA in the context
of the revocation hearing.
¶27 Instead, I find more merit in NMA’s position that because
the amended CUP imposed mitigation conditions on sPower for
the protection of NMA members’ property as a condition of
20180225-CA 14 2020 UT App 79Northern Monticello Alliance v. San Juan County
approval,10 those adjacent property owners had a legitimate
claim of entitlement in the enforcement of this permit and the
right to participate in a fair procedure regarding sPower’s
compliance with the mitigation required by the amended CUP.
The Fourteenth Amendment mandates that “[n]o state shall
make or enforce any law which shall . . . deprive any person of
life, liberty, or property, without due process of law.” U.S. Const.
amend. XIV, § 1. 11 To prevail on either a procedural or
substantive due process claim, a plaintiff must first establish “a
property or liberty interest warranting due process protection.”
Patterson v. American Fork City, 2003 UT 7, ¶ 23, 67 P.3d 466(quoting Crider v. Board of County Comm'rs, 246 F.3d 1285, 1289
(10th Cir. 2001)). The definition of what type of property is
10. In San Juan County, a CUP cannot be approved unless “the
Planning Commission [imposes] such requirements and
conditions as are necessary for the protection of adjacent
properties and the public welfare” and evidence presented to the
Planning Commission establishes that the conditional use will
not “be detrimental to the health, safety or general welfare of the
persons residing or working in the vicinity, or injurious to
property . . . in the vicinity.” San Juan County, Utah, Zoning
Ordinance § 6-4 (2011). While section 6-6 of the ordinance states
that “[a] public hearing on a [CUP] application may be held if
the Planning Commission shall deem a hearing to be necessary
and in the public interest,” id. § 6-6, section 6-10 provides that
“[n]o conditional use permit shall be revoked until a hearing is
held by the Planning Commission” and that “the permittee shall
be given an opportunity to be heard” at the hearing, id. § 6-10.
11. NMA argues that the Utah Constitution also provides state
constitutional protections. See Utah Const. art. I, § 7 (“No person
shall be deprived of life, liberty or property, without due process
of law.”). But NMA does not separately analyze the state
constitution, so neither do I.
20180225-CA 15 2020 UT App 79Northern Monticello Alliance v. San Juan County
safeguarded by the Fourteenth Amendment has evolved over
the years to encompass not only tangible physical property but a
“legitimate claim of entitlement” to certain circumscribed
benefits. Board of Regents v. Roth, 408 U.S. 564, 577 (1972)
(“Property interests . . . are not created by the Constitution.
Rather they are created and their dimensions are defined by
existing rules or understandings that stem from an independent
source such as state law . . . .”). To have a valid property interest
in a state-created right, a plaintiff “must have more than a
unilateral expectation of it.” Id. Only once the state has
legislatively created a certain entitlement and a person can
demonstrate a legitimate claim to that entitlement is the
Fourteenth Amendment implicated to ensure that the person is
not deprived of the entitlement absent due process of law. Lucas
v. Murray City Civil Service Comm’n, 949 P.2d 746, 752 (Utah Ct.
App. 1997).
¶28 Here, NMA’s property right is not simply its “interest in
the unrestricted use and enjoyment of the NMA Property” or the
“economically viable use or peaceful enjoyment of the NMA
property.” Rather, its protected property interest is in San Juan
County’s enforcement of the mitigation required by the
amended CUP and the right to participate in the fact-finding
determination of whether sPower, the permittee, failed “to
observe any condition specified or fail[ed] to observe other
requirements of this Ordinance in regard to . . . conduct of the
use or business as approved.” San Juan County, Utah, Zoning
Ordinance § 6-10 (2011). These rights seem to arise from the
Planning Commission’s approval of the amended CUP
conditioned on sPower undertaking as much flicker, light, and
sound mitigation as possible. NMA’s right to San Juan County’s
continued enforcement of those mitigation requirements is
different from the public’s interest in San Juan County’s
enforcement of its general zoning laws because the amended
CUP’s approval was expressly conditioned on mitigation of the
detrimental effects of the wind facility on NMA members’
20180225-CA 16 2020 UT App 79Northern Monticello Alliance v. San Juan County
property. As the permit holder, sPower clearly had a property
interest in the continuation of the amended CUP, which entitled
it to due process before its permit could be revoked. But as
adjoining landowners who were to be protected from sPower’s
conditional use of its property, it would seem that NMA’s
members were also entitled to the enforcement of the mitigation
required by the amended CUP, which would have given them
the right to be heard and present evidence at the revocation
hearing. 12
¶29 For these reasons, rather than those expressed by the
majority, I agree that this case should be remanded to give NMA
an opportunity to be heard before the Planning Commission.
12. “Due process requires . . . an opportunity to be heard in a
meaningful manner.” Salt Lake City Corp. v. Jordan River
Restoration Network, 2012 UT 84, ¶ 111, 299 P.3d 990 (quotation
simplified). To comply with due process, a hearing “must
provide parties the opportunity to present evidence, objections,
and arguments, to the end that the court may be enabled to fairly
and intelligently pass upon and determine the questions
presented for decision.” Id. (quotation simplified).
20180225-CA 17 2020 UT App 79