UT Appeals Court Finds Owners Failed to Provide Substantial Evidence to Support The Use of the Property for Topsoil Manufacturing as a Nonconforming Use

This post was authored by Matthew Loeser, Esq.

Leland Mascaro and Sheri Mascaro (collectively, the Mascaros), claimed they owned the subject property since 1979, when Leland’s grandfather gave it to them as a wedding gift. In 2009, Herriman City annexed the property, which previously had been within Salt Lake County’s jurisdiction. Under the Herriman City Code, the Mascaros’ use of the Property to perform topsoil manufacturing and screening was classified as a conditional use, not a permitted use. As such, the Mascaros submitted a request to the Herriman Zoning Administrator, seeking a determination that a nonconforming use had been established on the property. The Zoning Administrator denied the request, and the Mascaros appealed the denial to the Herriman City Planning Commission. In this case, the Mascaros appealed the district court’s grant of summary judgment in favor of Herriman City, affirming Herriman City’s denial of the Mascaros’ request for nonconforming use status.

The record reflected that although Herriman City acknowledged that Salt Lake County might have approved a nonconforming use, the Mascaros failed to provide the application or any documentation from the county showing which nonconforming use, if any, was “granted.” Additionally, before the Commission, the Mascaros conceded that they did not have any evidence “either conclusively proving or conclusively disproving” a prior legal use. The court found that these concessions supported the district court’s determination that the Appeal Authority’s decision was not arbitrary and capricious.

The Mascaros next argued the Appeal Authority’s “strict application” of a court order rendering the Riverton City annexation “null and void and of no effect” was illegal because they relied on the annexation to conduct their topsoil manufacturing and screening operation. Herriman City contended that the Mascaros failed to preserve the argument that they relied on Riverton City’s annexation and the court should therefore not address the merits of this argument. Here, the Mascaros failed to provide any “legal authority regarding the regulatory status of property which is the subject of a challenged annexation.” Thus, the Mascaros failed to provide the Appeal Authority the opportunity to resolve whether an exception applied to a court’s determination that a city’s annexation is null and void and of no effect. Since the Mascaros failed to prove that their use of the Property for topsoil manufacturing and screening was legally established under either Riverton City or Salt Lake County jurisdiction, the court found the Appeal Authority properly upheld the Commission’s denial of the request for nonconforming use status

LJ Mascaro Inc. v Herriman City, 2018 UT 12766 (6/21/2018)