Six Blue Bison v. Alpine City

2023 UT App 89THE UTAH COURT OF APPEALS
SIX BLUE BISON LLC,
Appellant,
v.
ALPINE CITY,
Appellee.
Opinion
No. 20210781-CA
Filed August 17, 2023
Fourth District Court, Provo Department
The Honorable Thomas Low
No. 210400257
Graden P. Jackson and William B. Ingram,
Attorneys for Appellant
Paxton R. Guymon and Landon A. Allred,
Attorneys for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES JOHN D. LUTHY and AMY J. OLIVER concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 In 2020, Six Blue Bison LLC (Blue Bison) filed with Alpine
City (Alpine) an application to amend an existing plat known as
the Summit Pointe Subdivision (the Subdivision), which is
adjacent to Draper City (Draper). The amendment sought to
extend the road in the Subdivision and replace an approved
“hammerhead turnaround” with a cul-de-sac that would include
a gated, non-public road for emergency use only.
¶2 The Alpine City Council (the Council) rejected Blue Bison’s
application. After exhausting its administrative remedies, Blue
Bison petitioned the district court for review of the Council’s
decision. Thereafter, Blue Bison filed for summary judgment, and
Six Blue Bison v. Alpine City
the district court denied the motion and granted summary
judgment in favor of Alpine. We affirm.
BACKGROUND
¶3 The Subdivision is located within Alpine, on the border
with Draper. In 2017, Alpine approved a plan for Plat A in the
Subdivision (the Approved Plat). The Approved Plat contains
four parcels connected with a long, private shared driveway that
extends through the Subdivision from an existing public street.
The driveway approaches the boundary line with Draper but ends
in a hammerhead turnaround within Alpine.
¶4 Blue Bison acquired the Subdivision in 2017. Thereafter,
Blue Bison applied to Alpine to amend the Approved Plat by
dividing it into eight lots and converting the private shared
driveway to a public through road. The through road would
connect Alpine’s road system to a proposed 415-unit residential
development in Draper owned by Blue Bison. The application was
not approved on the ground that it “did not comply with
[Alpine’s] general plan” because the amendment would “create a
new connection or ‘gateway’ into” Draper. In rejecting the
application, Alpine staff also noted that if Blue Bison was not
allowed to turn the shared driveway into a through road that
would connect to Draper, the resulting stub street would be
considered a cul-de-sac that would be “more than three times
longer than” the limit allowed for cul-de-sacs by the Development
Code of Alpine City (Alpine City Code). Blue Bison appealed that
denial.
¶5 While that appeal was pending, Blue Bison met with
Alpine and suggested a “compromise” to address concerns with
the requested amendment. Blue Bison’s compromise “was a long
cul-de-sac with just an emergency access road that connected to a
future Draper development, as opposed to the full road.” In
essence, Blue Bison’s compromise would avoid creating either a
20210781-CA 2 2023 UT App 89Six Blue Bison v. Alpine City
through road connecting to Draper or an over-length cul-de-sac
by creating a hybrid road that would dead-end in a cul-de-sac at
the border with Draper. This hybrid road would contain a non-
public connection for use by emergency vehicles only.
¶6 Blue Bison memorialized the compromise in a new
application for a plat amendment (the Proposed Amendment).
Members of Alpine staff reviewed the Proposed Amendment and
issued a report finding that the proposed “cul-de-sac with a fire
access connection . . . meets [Alpine’s] General Plan.” The report
and the Proposed Amendment were then presented to the Alpine
City Planning Commission (the Commission). After some back
and forth and the addition of ten “conditions/changes” to the
Proposed Amendment, the Commission voted to refer the
Proposed Amendment to the Council for review.
¶7 In June 2020, the Council held a public meeting to consider
and vote on Blue Bison’s application for the Proposed
Amendment. After some introductory remarks, one of the council
members moved to deny the application for three reasons:
1. The [Proposed Amendment] would create one
long road with only one public outlet, effectively
creating a cul-de-sac that is longer than is allowed
by the letter and spirit of [Alpine City Code].
2. The emergency access road to Draper is not
provided for as part of [Alpine’s] general plan.
3. [Alpine] has previously approved a subdivision
plat for the property which provided for two access
roads within [Alpine], therefore . . . the long, single
access road with an emergency access is not
necessary to allow the property owner to enjoy full
property rights afforded . . . under [Alpine]
ordinances.
20210781-CA 3 2023 UT App 89Six Blue Bison v. Alpine City
¶8 Extensive discussion on the Proposed Amendment
followed, which included negative comments by a neighborhood
representative and an attorney hired by neighbors who opposed
the Proposed Amendment. After considering these comments
and discussing the Proposed Amendment, the Council voted to
deny Blue Bison’s application, based on the three reasons
articulated above.
¶9 Blue Bison appealed the Council’s decision to the city land
use appeals hearing officer (Hearing Officer), who affirmed the
Council’s decision. In his written decision, the Hearing Officer
expressed his misgivings with the Council’s decision, finding it
“significant” that there was “very little, if any, detailed, technical
discussion of the application” for the Proposed Amendment at the
June meeting, and that “the three bases for denial in [the
Council’s] motion were not discussed in any meaningful way
before . . . the motion” was made. Nevertheless, relying on Baker
v. Park City Municipal Corp., 2017 UT App 190, 405 P.3d 962, the
Hearing Officer concluded that the Council “had the discretion to
deny Blue Bison’s application for any reason” under Utah Code
section 10-9a-609, and therefore the Council’s denial was proper.
¶10 Having exhausted its administrative remedies, Blue Bison
petitioned the district court for review of the Council’s decision,
and it subsequently filed a motion for summary judgment. The
court denied the motion, concluding that the Council’s decision
was not arbitrary and capricious, because the Proposed
Amendment “does not comply with all applicable land use
codes.” In particular, the court found that the new road created in
the Proposed Amendment would (1) be an overlength cul-de-sac
in violation of Alpine City Code and (2) constitute a “connection”
between Alpine and Draper that was not contemplated in
Alpine’s general plan, in violation of Utah Code section 10-9a-406.
In addition, the court found that even if the Proposed
Amendment complied with all applicable land use codes, the
Council still had the ability to deny it. Citing Baker, the court
20210781-CA 4 2023 UT App 89Six Blue Bison v. Alpine City
explained that approving a plat amendment under Utah Code
section 10-9a-609 is discretionary and Alpine’s “conclusions that
the proposed road is too much of a cul de sac and also too much of
a through road [to] [Draper] are valid bases for denying the
[Proposed Amendment].” Lastly, the court found that the
Council’s decision was not illegal because the Council’s
“interpretation of its cul de sac ordinances and the state’s road
statute are not ‘based on an incorrect interpretation of a land use
regulation’ or ‘contrary to law.’”
ISSUE AND STANDARD OF REVIEW
¶11 Blue Bison now appeals the district court’s denial of its
motion for summary judgment. “In general, we review a district
court’s grant or denial of summary judgment for correctness and
afford no deference to the court’s legal conclusions.” Checketts v.
Providence City, 2018 UT App 48, ¶ 13, 420 P.3d 71 (quotation
simplified). “On appeal from a district court’s review of an
administrative agency’s decision, we afford no deference to the
district court’s decision and apply the statutorily defined
standard to determine whether the court correctly determined
whether the administrative decision was arbitrary, capricious, or
illegal.” Ferre v. Salt Lake City, 2019 UT App 94, ¶ 10, 444 P.3d 567(quotation simplified), cert. denied, 455 P.3d 1060 (Utah 2019);
accord McElhaney v. City of Moab, 2017 UT 65, ¶ 26, 423 P.3d 1284.
ANALYSIS
¶12 Blue Bison contends the district court erred in denying its
motion for summary judgment and granting judgment in favor of
Alpine. Although Blue Bison frames the issue slightly differently,
the basic question before us is whether the district court correctly
determined that the Council’s denial of the Proposed Amendment
was not arbitrary and capricious or illegal. We address each issue
in turn.
20210781-CA 5 2023 UT App 89Six Blue Bison v. Alpine City
I. Substantial Evidence
¶13 Blue Bison first argues the district court erred by
concluding that the Council’s decision to deny the Proposed
Amendment was supported by substantial evidence in the record.
This issue is easily resolved in light of the deferential standard of
review applied to the type of land use decision at issue.
¶14 As a general matter, “[u]nder Utah law, a municipality’s
land use decisions are accorded a great deal of deference.” Ferre v.
Salt Lake City, 2019 UT App 94, ¶ 11, 444 P.3d 567, cert. denied, 455
P.3d 1060 (Utah 2019). A reviewing court must “presume that a
final land use decision of a land use authority or an appeal
authority is valid” and must uphold the decision unless it is
“arbitrary and capricious” or “illegal.” Utah Code § 10-9a-
801(3)(b).
¶15 “A land use authority’s decision is arbitrary or capricious
only if it is not supported by substantial evidence in the record.”
Checketts v. Providence City, 2018 UT App 48, ¶ 18, 420 P.3d 71(quotation simplified); accord Utah Code § 10-9a-801(c)(i).
“Substantial evidence is that quantum and quality of relevant
evidence that is adequate to convince a reasonable mind to
support a conclusion.” Baker v. Park City Mun. Corp., 2017 UT App
190, ¶ 17, 405 P.3d 962 (quotation simplified).
¶16 “In determining whether substantial evidence supports
the land use authority’s decision we will consider all the evidence
in the record, both favorable and contrary, and determine
whether a reasonable mind could reach the same conclusion as
the land use authority.” Checketts, 2018 UT App 48, ¶ 18 (quotation
simplified). “We do not, however, weigh the evidence anew or
substitute our judgment for that of the municipality.” Baker, 2017
UT App 190, ¶ 18 (quotation simplified). “Rather, we must simply
determine, in light of the evidence before the land use authority,
whether a reasonable mind could reach the same conclusion as
the authority.” Id. (quotation simplified).
20210781-CA 6 2023 UT App 89Six Blue Bison v. Alpine City
¶17 With these general principles in mind, we next turn to the
land use decision at issue in this case. As discussed above, Blue
Bison filed its application for the Proposed Amendment with the
goal of amending the Approved Plat by further subdividing it and
converting the approved private driveway into a public “hybrid”
road. Because Blue Bison was seeking to amend an existing plat
rather than obtain approval for an original plat, the Council,
acting in its capacity as the land use authority, denied the
Proposed Amendment pursuant to section 609 of Utah’s
Municipal Land Use, Development, and Management Act
(MLUDMA) on the ground that there was “good cause” to deny
the amendment. 1 0F
1. In an attempt to obtain a more favorable standard of review,
Blue Bison repeatedly cites section 3.31.030 of the Alpine City
Code—which governs “boundary line adjustment[s]”—rather
than section 609 of MLUDMA and analyzes the propriety of the
district court’s decision under section 3.31.030. See generally
Alpine City Code § 3.31.030, https://alpine.municipalcodeonline.
com/book?type=development#name=3.31.030_Property_Within_
A_Recorded_Subdivision [https://perma.cc/C828-ZKEH]. Blue
Bison complains that the court’s review of the Council’s decision
was flawed because the court “disregarded” section 3.31.030 in
making its decision. However, Blue Bison has not preserved this
issue for our review.
Although we are reviewing the decision of the district
court rather than that of the Council, our preservation rules
dictate that for us to properly reach an issue, it must have been
first raised in each forum below. Therefore, in the context of an
appeal from an administrative decision, an issue is preserved only
if it is presented to both the district court and the agency. See Utah
Physicians for a Healthy Env’t v. Executive Dir. of the Utah Dep’t of
Env’t Quality, 2016 UT 49, ¶ 32 n.12, 391 P.3d 148 (“[R]egardless
of how much deference we extend, any issue still must be
(continued…)
20210781-CA 7 2023 UT App 89Six Blue Bison v. Alpine City
¶18 Section 609 of MLUDMA provides that “[t]he land use
authority may approve the . . . amendment of a plat . . . if the land
use authority finds that . . . there is good cause for the . . .
amendment” and “no public street or municipal utility easement
has been vacated or amended.” Utah Code § 10-9a-609(1)
(emphasis added). Since the word “may” is “discretionary rather
than mandatory,” see Baker, 2017 UT App 190, ¶ 21 n.7,
“applications for plat amendments do not enjoy a presumption of
regularity with an expectation of approval,” id. ¶ 30. Moreover,
because “MLUDMA does not define ‘good cause,’ municipalities
necessarily have some discretion in determining what constitutes
‘good cause’ for a plat amendment.” Id. ¶ 23. As such, even
though an application to amend a plat may comply with all
applicable land use regulations, substantial evidence may
nevertheless support its denial. See id. ¶ 26.
¶19 In support of its decision to deny the Proposed
Amendment, the Council articulated three specific reasons as to
preserved at both the fact-finding and intermediate appellate
levels.”). As relevant here, when the Proposed Amendment was
being reviewed by Alpine staff, the Commission, and the Council,
the application was treated by both sides as an effort to amend a
plat. This characterization continued through Blue Bison’s
involvement with the Hearing Officer, where the only statutory
section raised in Blue Bison’s briefing was section 609 of
MLUDMA. It was not until Blue Bison petitioned for judicial
review that it began citing section 3.31.030 in the hope of obtaining
a more favorable outcome. Compare Alpine City Code § 3.31.030
(stating that the Council “shall approve” a “proposed boundary
line adjustment” if the proposal “complies with all applicable
requirements”), with Utah Code § 10-9a-609 (stating that a land
use authority “may approve” a plat amendment if there is “good
cause”). Because section 3.31.030 was never at issue before the
Council, any argument relating to its application, including
whether the district court “disregarded” it, is unpreserved.
20210781-CA 8 2023 UT App 89Six Blue Bison v. Alpine City
why “good cause” did not exist. To determine whether the
Council’s ultimate decision was valid, we need not separately
examine if substantial evidence supported each reason. Instead,
we must uphold the district court’s decision so long as there is
substantial evidence supporting at least one of the Council’s
reasons to deny the application. See id. ¶ 20. Here, we focus on the
Council’s second reason: “The emergency access road to Draper
is not provided for as part of [Alpine’s] general plan.” Because we
conclude this reason was supported by substantial evidence, we
need not address the other two.
¶20 Under MLUDMA, municipalities are required to adopt a
general plan. See generally Utah Code § 10-9a-401. Once a general
plan has been adopted, “no street, park, or other public way,
ground, place, or space, no publicly owned building or structure,
and no public utility, whether publicly or privately owned, may
be constructed or authorized until and unless it conforms to the
current general plan.” Id. § 10-9a-406. Here, it is undisputed that
Alpine’s general plan does not expressly contemplate a road
connecting Alpine to Draper at or anywhere near the location of
the road in the Proposed Amendment. We hold that it was within
the Council’s discretion to decide that under the facts of this case
“good cause” for denial of a plat amendment would include the
fact that the proposed road is not explicitly included in the Alpine
general plan. See Baker, 2017 UT App 190, ¶ 23 (holding that
“municipalities necessarily have some discretion in determining
what constitutes ‘good cause’ for a plat amendment”).
¶21 Blue Bison resists this conclusion. Primarily, Blue Bison
contends that even if Alpine’s general plan does not expressly
contemplate a road at the site proposed, the proposed road may
nevertheless “conform to” Alpine’s general plan because section
406 of MLUDMA “does not demand strict adherence to a static
map” but instead contemplates that a general plan be used only
as a “guide.” But the Council did not find that the proposed road
does not “conform to” the plan. Instead, it found that the
20210781-CA 9 2023 UT App 89Six Blue Bison v. Alpine City
proposed road “is not provided for as part of [Alpine’s] general
plan” and that this was good cause for denial of the Proposed
Amendment. (Emphasis added.) It was certainly within the
Council’s discretion to conclude that there was no good cause for
converting a private driveway into a potential through road
connecting to a neighboring city when that road was not explicitly
provided for in the general plan. Moreover, it is undisputed
factually that the proposed road is not explicitly provided for in
Alpine’s general plan. Thus, substantial evidence supports the
factual underpinning for the Council’s good cause decision.
¶22 Based on the foregoing, we agree with the district court’s
determination that the Council’s decision to deny the Proposed
Amendment was supported by substantial evidence and was
therefore not arbitrary and capricious.
II. Illegality
¶23 Blue Bison next argues the Council’s decision to deny the
Proposed Amendment was illegal because it was based solely on
public clamor rather than on record evidence. In making this
argument, Blue Bison asserts the district court incorrectly
interpreted the Alpine City Code and state law to conclude there
are “valid bases aside from the clamor” to support the Council’s
decision. 2 A land use decision is “illegal” if it “is based on an
1F
2. As part of this argument, Blue Bison contends the district court
“disregard[ed] the mandatory language of Section 3.31.030 of the
[Alpine] City Code for approving a plat amendment.” But Blue
Bison did not preserve this issue. “To preserve an issue for appeal,
the issue must have been presented in such a way that a lower
tribunal had the opportunity to rule on it.” LJ Mascaro Inc. v.
Herriman City, 2018 UT App 127, ¶ 27, 428 P.3d 4. Here, it was not
until after oral argument with the Hearing Officer—which
occurred months after the Council rendered its decision—that
(continued…)
20210781-CA 10 2023 UT App 89Six Blue Bison v. Alpine City
incorrect interpretation of a land use regulation” or it “is contrary
to law.” Utah Code § 10-9a-801(c)(ii). “Thus, whether a decision is
illegal depends on a proper interpretation and application of the
law.” Staker v. Town of Springdale, 2020 UT App 174, ¶ 45, 481 P.3d
1044 (quotation simplified).
¶24 Blue Bison has not persuaded us that the Council’s decision
was illegal. As discussed above, the Proposed Amendment
sought to amend an existing plat. Accordingly, even if the
application complied with all applicable land use regulations, its
approval was still contingent on the Council finding “good cause”
to approve the application. See Utah Code § 10-9a-609(1)(a). And
in determining what constitutes “good cause,” the Council is
necessarily entitled “some discretion.” See Baker v. Park City Mun.
Corp., 2017 UT App 190, ¶ 23, 405 P.3d 962. Moreover, this court’s
decision in Baker recognizes that a determination that good cause
exists to deny a plat amendment amounts, as a practical matter,
to a determination that no good cause exists to approve it. See id.
¶ 21. 3
2F
Blue Bison identified section 3.31.030 as a basis for challenging the
Council’s decision. Accordingly, we do not further address this
issue. See supra note 1.
3. Importantly, and in any event, as this court stated in Baker v.
Park City Municipal Corp., 2017 UT App 190, 405 P.3d 962, “section
609(1)(a) contains discretionary rather than mandatory
language.” Id. ¶ 21 n.7; see Utah Code § 10-9a-609(1)(a) (stating
that a “land use authority may approve the . . . amendment of a
plat . . . if the land use authority finds that . . . there is good cause
for the . . . amendment”). “Thus, even if the Council had expressly
concluded that good cause existed for [Blue Bison’s] amendment,
it would not necessarily have been obligated to approve it.” See
Baker, 2017 UT App 190, ¶ 21 n.7.
20210781-CA 11 2023 UT App 89Six Blue Bison v. Alpine City
¶25 On the record before us, not only is there ample evidence
that the proposed road is not provided for as part of the Alpine
general plan, but the evidence of that fact is undisputed. In
addition, when discussing whether to approve or deny the
Proposed Amendment, council members voiced concern about
the safety of the proposal. Council members noted that regardless
of whether the road was technically classified as a cul-de-sac or a
connection to Draper, the resulting road would create traffic
concerns. As drawn, and with the gate closed, the road would
function like an overlength cul-de-sac, providing only one access
point for the Subdivision. Moreover, if plans were to change and
the gate was allowed to remain open, the anticipated inter-county
traffic from Draper would be substantial because the road in the
Proposed Amendment would connect Alpine with a planned 415-
unit residential development in Draper. These considerations are
all relevant to the determination that good cause exists to deny a
plat amendment that would allow a road of this character where
the road is not explicitly contemplated in Alpine’s general plan.
¶26 In sum, the Council’s decision to deny the Proposed
Amendment was not illegal. The Council’s decision was based on
the proposed road not being expressly included in Alpine’s
general plan, and on valid and related concerns regarding traffic
and safety. And these concerns were borne out by evidence in the
record. Accordingly, the decision was not based solely on public
clamor. 4
3F
4. Although we have determined that the Council’s decision was
not the result of public clamor, we question whether the public
clamor doctrine is even applicable in cases involving plat
amendments. Blue Bison did not provide, and we could not find,
a case in which the public clamor doctrine was discussed in
relation to a plat amendment application. Rather, the caselaw
cited by Blue Bison indicates only that the doctrine applies to
(continued…)
20210781-CA 12 2023 UT App 89Six Blue Bison v. Alpine City
CONCLUSION
¶27 The district court did not err in denying Blue Bison’s
motion for summary judgment and granting judgment in favor of
Alpine. There is substantial evidence in the record before us
supporting the Council’s decision to deny the Proposed
Amendment and the Council’s decision was therefore not
arbitrary and capricious. Furthermore, the Council’s denial of the
Proposed Amendment rested on a proper interpretation of all
applicable land use regulations, and therefore Blue Bison cannot
show that the decision was illegal. Affirmed. 5
4F
conditional use permits. See, e.g., Davis County v. Clearfield City,
756 P.2d 704, 711–12 (Utah Ct. App. 1988) (finding the city’s
decision to deny a conditional use permit was arbitrary and
capricious where the city relied solely on “public clamor”), cert.
denied, 765 P.2d 1278 (Utah 1988).
5. Alpine argues it should be awarded attorney fees under Utah
Code section 10-9a-801(10). While we ultimately resolve this
matter in Alpine’s favor, we do not find Blue Bison’s challenge to
rise to the level of bad faith as contemplated under the statute. We
therefore deny Alpine’s request for attorney fees. See Utah Code
§ 10-9a-801(10) (“If the court determines that a party initiated or
pursued a challenge to a land use decision on a land use
application in bad faith, the court may award attorney fees.”).
20210781-CA 13 2023 UT App 89