Posted by: Patricia Salkin | August 1, 2015

UT Appeals Court Affirms City Board of Adjustment’s Denial of Property Owners’ Application for a Nonconforming Use was Not Arbitrary, Capricious, or Illegal

David and Ruth M. Fuller appealed from the district court’s orders granting summary judgment in favor of Springville City and dismissing the Fullers’ claims. The Fullers’ property was situated in an area of Springville City zoned solely for single-family use. The Fullers maintained a basement apartment in their residence and utilize their home as a multifamily dwelling. The Fullers sought review in the district court of the Springville City Board of Adjustment’s decision denying their request for approval of a nonconforming use. The Fullers argued that the Board of Adjustment’s application of Springville City’s zoning ordinances pertaining to single-family and multifamily-residential uses resulted in an unconstitutional taking of their property.

The Fullers first argued that the application of the zoning ordinances to prohibit their keeping a basement apartment constituted an unconstitutional taking of their property. The Fullers cited to instances in the record where they made vague assertions about the ordinances’ constitutionality, but none of their record citations demonstrated that a takings argument was ever presented to the Board or the district court. Because the Fullers failed to show that this argument was preserved, the court declined to address it. Similarly, the court found the Fuller’s argument as to which version of the law applies to their claims was unpreserved because the Fullers did not raise to the Board.

Next, the Fullers challenged the merits of the Board’s denial of their application for a nonconforming use. They argued that based upon their reading of the 1953 version of the Utah statute outlining the creation of boards of adjustment and their designated powers, that the Board deprived the Fullers of the opportunity to present evidence supporting their claim that “the use of their nonconforming basement apartment promoted the public welfare.” However, the court found that the Board denied the Fullers’ application for a nonconforming use because the Fullers failed to prove that their multifamily residence was ever legally established. Because the Fullers pointed to no evidence in the record to demonstrate that their use of their residence as a multifamily apartment was ever legally established, they failed to show that the Board’s decision was arbitrary, capricious, or unsupported by substantial evidence. The district court’s decision was therefore affirmed. 

Fuller v Springville City, 2015 WL 4293233 (UT App. 7/16/2015)

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