Ogden Plaza Investors v. Ogden Board of Zoning

2022 UT App 74THE UTAH COURT OF APPEALS
OGDEN CITY PLAZA INVESTORS LTD.,
Appellant,
v.
OGDEN CITY BOARD OF ZONING ADJUSTMENT, OGDEN CITY, OGDEN
CITY PLANNING COMMISSION, AND GREG MONTGOMERY,
Appellees.
Opinion
No. 20200860-CA
Filed June 16, 2022
Second District Court, Ogden Department
The Honorable Jennifer L. Valencia
No. 190902452
Nathan D. Westover, Attorney for Appellant
Stephen F. Noel and Kenneth D. K. Brown, Attorneys
for Appellees
JUSTICE DIANA HAGEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN D. TENNEY
concurred.1
HAGEN, Justice:
¶1 This case is about whether a drive-in restaurant is
permitted in a zoning district approved for “service station[s],
drive-in restaurant[s], gas pumps, [and] convenience stores.”
Ogden City, Utah, Code § 15-34-2(A) (2021). We hold that it is.
1. Justice Diana Hagen began her work on this case as a judge of
the Utah Court of Appeals. She became a member of the Utah
Supreme Court thereafter and completed her work on the case
sitting by special assignment as authorized by law. See generally
Utah R. Jud. Admin. 3-108(4).
Ogden City Plaza Investors v. Ogden City Board of Zoning
BACKGROUND
¶2 Appellant Ogden City Plaza Investors, Ltd. (the owner)
owns commercial property located in the Central Business District
(CBD) of Ogden City, Utah. The property is the site of a stand-
alone building with a drive-through window and has been leased
to various fast-food establishments over the past few decades. In
August 2014, following a nearly six-year vacancy of the property,
the city notified the owner that it had lost its nonconforming use
rights to the drive-through window.2 The owner responded to the
notice, arguing that the drive-through window was in fact
permissible in the CBD under the relevant zoning ordinance.
¶3 The issue arose again nearly four years later when the city
informed the owner of its plans to construct a bike lane in front of
the property. The owner wrote to the city, asserting that the
constructed bike lane would block access to its drive-through, but
efforts to resolve the issue failed.
¶4 The owner then sought a formal determination from the
city’s Planning Division that the drive-through was permitted
under the zoning ordinance. The Planning Division disagreed
with the owner’s interpretation of the zoning ordinance and
determined that the drive-through was not a permitted use. The
owner unsuccessfully appealed that determination to the Board
2. Per Ogden City Code, a nonconforming use is
[a] use of land that legally existed before its current
land use designation, has been maintained
continuously since the time the land use ordinance
governing the land changed, and because of one or
more subsequent changes to the zoning ordinance,
or other land use ordinance, does not conform to the
regulations that now govern the use of the land.
Ogden City, Utah, Code § 15-2-15 (2011).
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of Zoning Adjustment. See Ogden City, Utah, Code § 15-5-1
(2021).
¶5 Undeterred, the owner sought judicial review. It argued
that the Board’s interpretation of the zoning ordinance was
incorrect as a matter of law and that the drive-through was
permitted in the CBD. The district court agreed with the Board’s
interpretation and declined to disturb its decision. The owner now
appeals.
ISSUE AND STANDARD OF REVIEW
¶6 The owner challenges the district court’s determination
that the Board correctly interpreted the zoning ordinance.3 “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
afford no deference to the district court’s decision.” Outfront
Media, LLC v. Salt Lake City Corp., 2017 UT 74, ¶ 12, 416 P.3d 389(cleaned up). Like the district court, we will uphold the land use
decision unless it was “arbitrary and capricious; or . . . illegal.” See
Utah Code Ann. § 10-9a-801(3)(b) (LexisNexis Supp. 2020). The
owner’s arguments go to illegality: whether the Board’s decision
was “based on an incorrect interpretation of a land use
regulation.” See id. § 10-9a-801(3)(c)(ii) (providing that a land use
decision is illegal if that decision is “contrary to law”). This is a
question of law, reviewed for correctness. See Outfront Media, 2017
UT 74, ¶ 12.
3. Because we agree with the owner’s interpretation of the
ordinance, we do not reach the alternative grounds for reversal
advanced on appeal.
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ANALYSIS
¶7 Municipal ordinances are subject to ordinary rules of
statutory interpretation. See Colosimo v. Gateway Cmty. Church,
2018 UT 26, ¶ 46, 424 P.3d 866. We therefore begin with the text,
“presume that the [legislative body] used each word advisedly,
and deem all omissions to be purposeful.” Id. (cleaned up).
Further, “[b]ecause zoning ordinances are in derogation of a
property owner’s common-law right to unrestricted use of his or
her property, . . . provisions permitting property uses should be
liberally construed in favor of the property owner.” Rogers v. West
Valley City, 2006 UT App 302, ¶ 15, 142 P.3d 554 (cleaned up).
¶8 Besides some prefatory language, the relevant zoning
ordinance consists entirely of a “list of possible uses,” organized
by table. See Ogden City, Utah, Code § 15-34-2 (2021). Each
possible use has its own row on the table, and rows are grouped
into general categories (e.g., “Sales,” “Services,” “Institutional,”
and “Residential”). See id. In separate columns for two different
zoning districts—the “Intensive District” and the CBD—the table
indicates whether each possible use is permitted (P), not allowed
(N), or “allowed only when authorized by a conditional use
permit” (C). See id.
¶9 The parties agree that the property is located in the CBD.
The parties also agree that the owner is using its property as a
“drive-in restaurant” within the meaning of the ordinance.4
4. Below and on appeal, the parties consistently refer to the
owner’s property use as a drive-through restaurant. We question
whether a “drive-through restaurant” is necessarily the same as a
“drive-in restaurant,” but we accept, for purposes of this case, the
parties’ stipulation that the property qualifies as a “drive-in
restaurant” within the meaning of the ordinance.
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“Drive-in restaurants” are addressed in two separate provisions,
which we refer to as Use 1 and Use 2:
[Use 1:]
[Use 2:]
Id. § 15-34-2 (2015).
¶10 The owner asserts that a drive-in restaurant is a
permissible use under Use 2.5 That provision indicates that the
following is permissible in the CBD, but not in the Intensive
District: “Service station, drive-in restaurant, gas pumps,
convenience stores.” Id. § 15-34-2(A). We read this provision as
setting forth a list of discrete items demarcated by commas.
5. Use 2 has since been amended. Although the text remains the
same, Use 2 is no longer allowed in either the CBD or the Intensive
District. See Ogden City, Utah, Code § 15-34-2(A) (2022). The
Board’s decision, however, was premised on the law then in
effect, and we review the Board’s decision accordingly. See State
v. Clark, 2011 UT 23, ¶ 13, 251 P.3d 829.
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See Bryan A. Garner, Garner’s Modern American Usage 748 (4th ed.
2016) (“[T]he comma separates items . . . in a list of more than two
. . . .”). And absent any language to the contrary, we further read
this provision as indicating that any of the discrete items, taken
alone, qualifies as a property use contemplated by Use 2.6 Because
Use 2 plainly indicates that a “drive-in restaurant” is permitted in
the CBD, the owner’s use of the property complies with the
zoning ordinance.
¶11 The city disagrees, arguing that Use 2 is a “mixed-use
entry,” satisfied only by “a facility that combines the . . .
characteristics” of the discretely listed items. (Cleaned up.) In the
city’s view, a drive-in restaurant fails to qualify unless it is
attached to a combination service station and convenience store
that also has gas pumps. But we see little basis in the text for the
city’s interpretation, and the city cites no authority for the
proposition that a list of items separated by commas must be read
this way.
¶12 The city asserts that its mixed-use interpretation is
supported by the noscitur a sociis canon of interpretation. That
canon merely provides, however, that we can discern the meaning
of a given term based on a “common feature” or “attribute”
6. We are aware that in the absence of a conjunction, a list of items
is ordinarily read conjunctively (W, X, Y, and Z), not disjunctively
(W, X, Y, or Z). See Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts 119 (2012) (“This technique is
termed asyndeton . . . . It is as though and were inserted between
the items.”). Here, however, that is a distinction without a
difference. Either we must read Use 2 as indicating that service
stations, drive-in restaurants, gas pumps, and convenience stores
are permitted in the CBD; or that service stations, drive-in
restaurants, gas pumps, or convenience stores are permitted there.
The result is the same; under either reading, Use 2 allows a drive-
in restaurant.
20200860-CA 6 2022 UT App 74Ogden City Plaza Investors v. Ogden City Board of Zoning
shared by nearby words. See Utley v. Mill Man Steel, Inc., 2015 UT
75, ¶ 30, 357 P.3d 992 (cleaned up); Turner v. Staker & Parson Cos.,
2012 UT 30, ¶ 10 n.5, 284 P.3d 600 (“The phrase means ‘it is known
from its associates.’” (cleaned up)). The noscitur canon is helpful,
then, when discerning the meaning of one item contained within
a list of other items—for instance, the meaning of item “B” within
the list “A, B, C, D,” based on what “A,” “C,” and “D” have in
common. See Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 195 (2012) (“The canon especially holds
that words grouped in a list should be given related meanings.”).
Yet that is not what the city asks us to do. Rather, the city invokes
the noscitur canon for the proposition that Use 2 describes a single
type of “facility that combines the . . . characteristics” of each item
in the list—that “A, B, C, D” necessarily means “A+B+C+D.” But
that is incorrect. The noscitur canon does not instruct us to
construe a list of discrete items as a singular item bearing the
characteristics of each. And it is not necessary for us to determine
the meaning of “drive-in restaurant” by reference to the other
items in the list because the parties agree that the property is a
“drive-in restaurant” within the meaning of the ordinance.
¶13 Moving outward, the city then argues that this
interpretation of Use 2 clashes with how other entries in the table
are structured. For instance, it directs us to an entry in the
“Manufacturing” category of the table, which relates to
“[m]anufacturing of food products for human consumption . . . ;
provided, that not more than 15 percent of the floor area is used
for the manufacturing process, the street frontage is used for
permitted sales uses, and no deliveries of the produced product
by delivery truck are allowed.” Ogden City, Utah, Code § 15-34-
2(G). In the city’s view, this provision clearly sets forth a list of
items separated by commas, and all items are required to satisfy
the condition. Consequently, were we to read this provision the
same way that we interpret Use 2 (i.e., that only one of the listed
items is sufficient), the city argues that the result would be
“absurd.”
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¶14 The city is correct that, in striving to “produce a
harmonious whole,” we tend to read similarly structured
subsections the same way. See State v. Hatfield, 2020 UT 1, ¶ 16, 462
P.3d 330 (cleaned up); see also, e.g., State v. Liti, 2015 UT App 186,
¶¶ 13–16, 355 P.3d 1078 (relying on a similarly structured statute
to inform the meaning of the statute at issue). But we perceive no
dissonance between our interpretation of Use 2 and the city’s
interpretation of the manufacturing provision. The difference is
that the list of items separated by commas in the manufacturing
provision are not stand-alone uses of property but are instead
limitations on the “manufacturing of food products for human
consumption.” And the manufacturing provision contains other
language indicating that all discretely listed items are required
(“provided, that [A, B, and C]”), whereas Use 2 does not. Compare
Ogden City, Utah, Code § 15-34-2(G), with id. § 15-34-2(A).
Moreover, accepting the city’s invitation to look elsewhere in the
table for guidance, we see several entries structured like Use 2 that
make little sense when read as mixed-use entries (e.g., “Lodging
houses, boarding houses, single room occupancies”; and
“Halfway houses, prisons”). See id. § 15-34-2(C)–(D) (2015).
Indeed, we see no other indication in the table that Use 2 does not
allow stand-alone drive-in restaurants.
¶15 The city further argues that we should read Use 2 in
tandem with Use 1. Unlike Use 2, Use 1 is permitted in both the
CBD and the Intensive District. Use 1 describes “an establishment
engaged in preparing, serving and selling food and drink for
human consumption on or off premises; provided that such use
shall not include drive-in restaurants, e.g., restaurants, cafes, etc.”
Id. § 15-34-2(A). The parties agree that Use 1’s limitation on drive-
in restaurants means that the owner’s property does not qualify
as a permitted use under this entry in the table. But whereas the
owner contends that drive-in restaurants are nevertheless
permitted in the CBD via Use 2, the city argues that Use 1
affirmatively prohibits them altogether. In other words, because
Use 1 is permitted in both the CBD and the Intensive District, the
20200860-CA 8 2022 UT App 74Ogden City Plaza Investors v. Ogden City Board of Zoning
city reasons that stand-alone drive-in restaurants are not allowed
in either district. We disagree.
¶16 As stated in the prefatory language, the zoning ordinance
merely contains a “list of possible uses”; it is not a comprehensive
list of requirements, all of which must be met before a use is
deemed permissible. The table sets forth a description of the
possible use, then indicates whether it is permitted, not allowed,
or “allowed only when authorized by a conditional use permit”
in either the CBD or the Intensive District—nothing more. So,
when the table indicates that a possible use is permitted in one or
both of the districts, it simply means that a property use fitting
that description is affirmatively allowed there. Any negative
requirements or qualifiers within the description are self-
contained; they merely limit the scope of that specific entry and
do not affect whether a given property use fits the description of
an entirely different entry in the table. Cf. Halversen v. Allstate Prop.
& Cas. Ins. Co., 2021 UT App 59, ¶ 12, 493 P.3d 693 (“[M]aterial
within an indented subpart relates only to that subpart . . . .”
(cleaned up)). Correctly interpreted, then, Use 1’s limitation on
drive-in restaurants does not affect whether a property use
comports with Use 2. It restricts the otherwise unlimited field of
“establishment[s] engaged in preparing, serving, or selling food
and drink” that would be swept up in Use 1.
¶17 This interpretation makes structural sense, too. Use 2 is
permitted only in the CBD and, therefore, is more restrictive. And
Use 1’s limitation on drive-in restaurants prevents it from
otherwise permitting any “establishment engaged in preparing,
serving and selling food and drink”—even a drive-in—in the
Intensive District. Additionally, were we to interpret these
provisions as the city asks—Use 1 as an across-the-board
prohibition on drive-ins and Use 2 as a mixed-use entry—the two
would be hard to reconcile. That is, a mixed-use drive-in
restaurant is still a drive-in restaurant and would therefore be
prohibited under the city’s interpretation of Use 1.
20200860-CA 9 2022 UT App 74Ogden City Plaza Investors v. Ogden City Board of Zoning
¶18 Lastly, the city directs us to a report prepared by the
Board’s staff for the purpose of recommending a decision in the
owner’s appeal to the Board. The report suggests that Use 2 was
intended as a mixed-use entry. The report cites no legislative
history or other evidence supporting its interpretation, and we
would not consider such evidence in any event because we do not
find the ordinance to be ambiguous. See Scott v. Wingate Wilderness
Therapy, LLC, 2021 UT 28, ¶ 50, 493 P.3d 592 (explaining that when
“the plain language of the statute is clear, we need not reach for
legislative history to aid our understanding”). Moreover, we give
no deference to the Board’s interpretation of the ordinance. See
Hughes Gen. Contractors, Inc. v. Utah Labor Comm’n, 2014 UT 3,
¶ 25, 322 P.3d 712 (explaining that we have a “de novo
prerogative of interpreting [state] law, unencumbered by any
standard of agency deference”). Therefore, the staff report’s
interpretation carries no weight.
¶19 We conclude that the Board’s interpretation is not
supported by the text of the ordinance. From our perspective, Use
2 plainly permits “drive-in restaurant[s]” in the CBD. Because
both parties agree that the property is a “drive-in restaurant”
located within the CBD, we reverse the district court and hold that
the Board incorrectly concluded that the zoning ordinance
prohibited the owner’s use of the property.
CONCLUSION
¶20 The Board incorrectly determined that the zoning
ordinance did not permit a stand-alone “drive-in restaurant” in
the CBD. Therefore, we reverse and remand to the district court
with instructions to set aside the Board’s decision.
20200860-CA 10 2022 UT App 74