Posted by: Patricia Salkin | January 12, 2008

Utah Appeals Court Finds Historic Commission Provided Adequate Notice to Landowner

While zoning and land use decisions are challenged because a client does not like the substantive outcome of the decision, the first set of facts a land use attorneys should review is the process required to even get to that decision.  Procedural requirements are contained in the applicable statute and/or local law, and attorneys should review each requirement for proof of compliance. For example, in public hearing requirements, make sure that notice was provided to your client in the right number of days in advance and that it contained the required detail.  Where the applicable law requires posting, or filing of decisions and/or new laws and resolutions, make sure that the acting body followed these protocols.  Sometimes, where the  body had the authority for the discretionary decision made, and where that decision was not arbitrary and capricious (usually the only way to overturn a discretionary decision), the only possible way to successfully void the outcome (even if only temporarily) is to find a failure to follow procedural requirements. The lesson in this for municipal planners and attorneys who work with Boards is to have your checklist and make certain that the Board follows all required steps. A recent case from Utah points to one example of how these types of challenges may be brought.            

The Salt Lake City Landmark Commission, consistent with the City Code, provided fourteen days advance notice of a public hearing to all landowners within eighty-five feet of the property for which an application had been submitted.  The City Code further required that, “[t]he notice for mailing…shall state the substance of the application and the date, time [,] and place of the public hearing, and the place where such application may be inspected by the public.”  While the plaintiff received notice, he argued that it was inadequate since it described the proposed structure as a “garage” and that in essence it was a two-story structure.  The Court disagreed, finding that the term “garage” in this case provided the plaintiff with the notice required by law and that it was not deceptive or misleading.  The Court found that the law did not require the Commission to provide the actual dimensions of the proposed structure, such as its square footage or height.  The Court also commented that the notice contained the name and phone number of city planning staff who could address questions about the proposed structure, and the site plan and preliminary construction drawings were placed on file in the public record before the public hearing.  Therefore, the Court concluded that the notice requirements were satisfied.   

McCowin v. Salt Lake City Corp., 2008 WL 90223 (Utah App. 1/12/2008).  The opinion can also be accessed at: http://www.utcourts.gov/opinions/appopin/mccowin_FORPUB011008.pdf


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