Utah Appeals Court Affirms Denial of Application for Special Exception to Construct Ancillary Building

This post was authored by Sebastian Perez, Esq.

Michael Bermes (“Bermes”) sought relief from a denial of his request to build an ancillary building (the “building”) on a lot he owned over a ridgeline in Summit County (the “County”) where the District Court upheld the Summit County Council’s (the “County”) decision. This appeal followed. 

On appeal to the Court of Appeals of Utah (the “Court”), Bermes argued that the County’s decision was both (1) illegal and (2) arbitrary and capricious. To advance his first argument, Bermes alleged that the County incorrectly relied on Snyderville Code Sec. 10-4-3.C.1.a(3)(A)(iii) (the “Site Grading Provision”) in the review of his request instead of the neighboring provision– Snyderville Code Sec. 10-4-3.C.1.a(4)(A) (the “Landscape Provision”) because the proposed work was to build a barn and not related to site grading. The Court disagreed with Bermes and reasoned that the plain language of the statute, related to the term “site grading”, was sufficiently related to the proposed work by Bermes in the construction of an ancillary building. The application of the Site Grading Provision then barred the proposed work by Bermes because of the site disturbance limitation within the statute which the construction of the proposed ancillary building would have exceeded. To advance his second argument, Bermes alleged that the County did not adequately disclose the steps that led to the rejection of his application and offered ways in which that decision could have been clearer. The Court disagreed and relied on Board of Oil, Gas, & Mining, 2018 UT 22 to point out that a board’s ability to have crafted an order that better explained their reasoning did not translate into a basis for concluding that the board lacked substantial evidence for its decision. The Court determined that the County adequately laid out the reasoning for its decision with an analysis of each factor in Snyderville Code Sec. 10-3-7.B (the “Criteria for Approval”) and reasoning as to why Bermes could not satisfy each requirement. Finally, Bermes argued that the County’s decision was arbitrary and capricious because he had been treated differently than his neighbors and discrepancies between how he was treated when he applied for a variance in 2015 and how he was treated when he applied for a special exception in 2020. The Court disagreed and relied on South Weber City v. Cobblestone Resort LLC, 2022 UT App 63 to point out that a municipality’s failure to enforce zoning for a time does not forfeit the power to enforce, additionally, the Court also highlighted that Bermes’ proposed ancillary building would have been bigger than any other property on the ridgeline. The Court then reconciled the alleged different treatment of Bermes in 2015 compared to 2020 as two different sets of circumstances. For example, in 2015 Bermes’ request to construct was treated more favorably because he was building a home as opposed to an ancillary building in 2020. Secondly, Bermes’ work in 2015 exceeded the scope of the work proposed at the time which was viewed as a concern for a similar outcome in his 2020 proposed work.  

Therefore, the Court affirmed the District Court’s ruling and concluded that the Site Grading Provision applied to Bermes’ construction application, that the provision’s disturbance limitation prohibited the scope of the proposed work, and that the County’s decision was not illegal because it provided the substantive review required under Utah law. The Court also concluded that the County’s denial was not arbitrary and capricious because their decision was specific enough to facilitate appellate review.

Bermes v Summit County, 2023 WL 5439306 (OH App. 8/25/2023).