Posted by: Patricia Salkin | November 15, 2012

Utah Supreme Court Further Clarifies Line Between Legislative and Administrative Action in Action involving Ordinance Approving Amended Development Agreement

This opinion is particularly interesting because it is the first to follow Carter v. Lehi City which established “a new paradigm” for determining whether action is properly characterized as legislative or administrative.

The essential question in this case was whether the Grand County Council acted in a legislative or administrative capacity when it adopted an ordinance which approved an amended development agreement. A group of citizens claimed the council acted administratively and that their appeal should have been remanded the county’s Board of Adjustment. The court held that the ordinance was a legislative act because it bore the hallmarks of legislative action described in Carter: it (i) established a new law of general applicability adopted after the council weighed various policy considerations, and (ii) had the formal nature of a legislative act.

The ordinance not only restated conditions of approval for a development project first approved in 2002, it also established new ones. Citizens opposed to the project argued the ordinance was a site specific administrative land use decision because it governed only one parcel of property (albeit very large) owned by a single owner. But because the agreement was intended to “run with the land” the court concluded it applied not only to the current owner, but all future owners. Thus the ordinance was a legislative act because, even though it applied to only one or a few individuals, it “set the governing standard for all cases coming within its terms” and was “based on general policy concerns rather than individual circumstances.” In close cases the court gives “controlling significance to the form of the underlying governmental decision.” Thus, the court said when a land use decision is “at least arguably legislative,” the court gives “understandable deference to the formal nature of the governmental body making the decision and the formal nature of the zoning ordinance.” In this case, the court gave such deference, as evidenced by (i) the county’s characterization of its action, (ii) the substance of the ordinance, and (iii) the formal process by which it was adopted. After reviewing the facts of the case against these criteria, the court concluded the ordinance was a legislative act.

Citizens also claimed the ordinance was illegal. To prevail first requires they had to demonstrate that the ordinance did not comply with applicable zoning requirements already in place. Second, they had to demonstrate how they were “prejudiced by noncompliance or, in other words, how, if at all, the [county’s] decision would have been different and what relief, if any, they are entitled to as a result.”

Citizens argued (i) the approval period for the original preliminary plat had expired, (ii) the ordinance was inconsistent with the Grand County General Plan, and (iii) public hearing notice was inadequate. The court rejected these arguments finding, among other things, (i) the county properly had granted a time extension for the plat, (ii) language in the General Plan was not binding, and (iii) notice was sufficient.

Regarding the notice issue, the court noted that although the Land Use, Development, and Management Act and the county land use code require notice of each public meeting on the “subject” of the meeting, there is nothing specifying the level of detail required. The court thus adopted a rule from a Colorado Supreme Court case which held that “notice is sufficient as long as the items actually considered at the meeting are reasonably related to the subject matter indicated by the notice.” The court found this standard allows a balance between the public’s interest in adequate notice and the government’s need to conduct its business in a reasonable and efficient manner.

Suarez v. Grand County, 2012 UT 72 (Utah 10/2012)

The opinion can be accessed at: http://www.utcourts.gov/opinions/supopin/Suarez1272102312.pdf.

Special thanks to Neil Lindberg, Esq,. of the Utah APA for sharing this summary.


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