Posted by: Patricia Salkin | August 10, 2012

Utah Appeals Court Upholds Preliminary Approval of Proposed Master Planned Development

The Moab Local Green Party appealed from the lower court’s decision to uphold the Moab City Board of Adjustment’s approval of the LB Moab Land Company’s preliminary development plan pursuant to the master planned development (MPD) ordinances. Due to the location of the proposed development, LB Moab had to seek approval as an MPD. The ordinance provided for a four-stage review process: “(1) a preapplication meeting; (2) a concept review; (3) a preliminary review; and (4) a final review or site plan review.” LB Moab followed procedure and The Commission and City Council approved the preliminary plan subject to conditions. Moab Local Green appealed the approval to the Board, which was denied, and then filed an action in district court. Moab Local Green contended that the Board’s decision was “arbitrary, capricious, or illegal because there was insufficient evidence that LB Moab’s preliminary plan as approved contained each of the many specific elements required by Moab Municipal Code section 17.65.100.” The district court affirmed the Board and Moab Local Green appealed. Moab Local Green argued that section 17.65.030(A)(1) “required the Board to ensure that LB Moab’s preliminary plan contained each and every element listed in section 17.65.100(A)-(N) and that the Board’s approval of a preliminary plan that did not contain each and every such element constituted an illegal act.”

The Court affirmed the decision from below. The Court stated that Moab Local Green had failed to convince the Court that the Board’s decision was illegal and that it agreed “with the district court’s general observation that this is a preliminary approval, rather than final, MPD plan review, and we do not read municipal code section 17.65.030(A)(1) as applying to such preliminary reviews.” Furthermore, the Court held that there was clear “distinction between the elements required in an approved preliminary MPD plan and those that are to be included in a complete preliminary development plan application.” Moab Local Green’s contention goes to the completeness of the application and not to the adequacy of the plan itself.

The Court noted it was important that the challenged decision was not a final approval but a preliminary approval. “One purpose of the preliminary approval process is to identify issues that need to be corrected before final approval, which would imply that preliminary approval may be granted conditionally subject to identified flaws being corrected prior to final approval.” Furthermore, the Court noted “the only mandatory requirement for a preliminary MPD plan are that it shall identify the proposed location of all lots, tracts, parcels, open space, right of way, building envelopes, and other significant features.” Moab Local Green failed to argue that LB Moab’s preliminary MPD does not include these elements. Instead they argue that LB Moab failed to comply with the requirements enumerated in section 17.65.100(A)-(N), which are elements of a complete preliminary development plan application.

Moab Local Green Party v. Moab City, 276 P.3d 1230 (UT App. 4/12/2012)

The opinion can be accessed at:  http://scholar.google.com/scholar_case?case=15634236705959663596&q=Moab+Local+Green+Party+v.+Moab+City&hl=en&as_sdt=2,33&as_vis=1


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