Posted by: Patricia Salkin | June 1, 2016

UT Appeals Court Affirms Dismissal of Anticipatory-Nuisance Claim Over Homeless Shelter

Steffensen–WC owned a parcel of land in Salt Lake City. The building on that land was formerly industrial but had been converted to apartments. Volunteers of America of Utah, Inc. purchased an adjacent parcel of land, with the intention of constructing a homeless shelter for young adults. To that end, VOA applied to SLC for the permits necessary to build and operate the shelter. Thereafter, Steffensen–WC brought suit against VOA and SLC, noting that SLC appeared “to be on the verge of approving the conditional use application” and asserting that “such approval can not meet the requirements of the applicable … ordinances and will create a substantial private nuisance.” VOA and SLC both filed motions to dismiss the suit.

The district court determined that the anticipatory-nuisance arguments in VOA’s reply were appropriate rebuttal material under rule 7 of the Utah Rules of Civil Procedure, and was unpersuaded by Steffensen–WC’s argument that the complaint had “invoked the law of Anticipatory Nuisance” in light of the fact that Steffensen–WC’s complaint “expressly invoked the claim of private nuisance” and “even lays out the elements of a ‘private nuisance.’ On appeal, in an order of partial summary affirmance, the court agreed that Steffensen–WC had not exhausted the available administrative remedies for its claims against SLC and affirmed the dismissal of those claims.

The court first found that the district court had jurisdiction over Steffensen–WC’s claims against VOA because there was no applicable statutory exhaustion requirement, since the statute’s effect was limited to land-use challenges against municipalities, and therefore did not apply to the claims against VOA. As to the issue of the rebuttal material, Steffensen–WC was the first party to assert that the complaint stated a claim for anticipatory nuisance. Thus, the “matter” of anticipatory nuisance was in fact raised by Steffensen–WC. VOA’s reply memorandum addressed that matter by arguing that Utah does not recognize anticipatory nuisance as a cause of action and by arguing that Steffensen–WC had not alleged the requisite elements of such a cause of action. Because these arguments rebutted a new matter—anticipatory nuisance—raised by Steffensen–WC in its opposition to the motion to dismiss, they were appropriate rebuttal under rule 7.

Lastly, the court held that even if Utah recognizes anticipatory nuisance as a cause of action, Steffensen–WC failed to persuade the court that its complaint satisfied the elements of such a cause of action and provided fair notice of an anticipatory-nuisance claim, nor did the complaint allege all of the elements generally required of an anticipatory-nuisance claim in jurisdictions that recognize such a cause of action.

Stefensen-WC, LLC. v Volunteers of America Utah, 369 P/ 3d 483 (UT App. 3/10/2016)

 


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