Advisory Opinion #80

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Parties: C.E. Buttars and Harrisville City

Issued:  December 9, 2009

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TOPIC CATEGORIES:

Q:  Nonconforming Uses and Noncomplying Structures

R(viii): Other Topics (Appealing Land Use Decisions)

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A legislative body may modify site plans approved by a planning commission. A planning commission may not alter zoning ordinances. All property is subject to reasonable regulation, including nonconforming uses.  Regulations which promote the public health and welfare are valid.

 

DISCLAIMER  The Office of the Property Rights Ombudsman makes every effort to ensure that the legal analysis of each Advisory Opinion is based on a correct application of statutes and cases in existence when the Opinion was prepared.  Over time, however, the analysis of an Advisory Opinion may be altered because of statutory changes or new interpretations issued by appellate courts.  Readers should be advised that Advisory Opinions provide general guidance and information on legal protections afforded to private property, but an Opinion should not be considered legal advice. Specific questions should be directed to an attorney to be analyzed according to current laws.

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Advisory Opinion

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Advisory Opinion Requested by:                  Harrisville City

                                                                         by Michael S. Junk, City Attorney        

Local Government Entity:                              Harrisville City

Applicant for the Land Use Approval:          C.E. Butters

Project:                                                            Parking for Commercial Enterprise

Date of this Advisory Opinion:                      December 9, 2009

Opinion Authored By:                                    Elliot R. Lawrence, Attorney,

                                                                         Office of the Property Rights Ombudsman

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Issues

  1. Is a City Council review of an appealed land use issue a de novo review, or is it limited to only the issue identified in the appeal?
  2. May a planning commission temporarily allow parking without a hard-surface, when a city’s ordinance does not allow parking without a hard-surface?
  3. Is a City’s authority to require site plans limited by a court order?
  4. May a City enforce new parking ordinances, or may the applicant rely on older regulations?

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Summary of Advisory Opinion

When considering an appeal from a land use decision, an appeal authority has latitude to uphold, deny, or modify the decision.  There is no reason to conclude that an appeal authority’s scope of review may be arbitrarily limited to the question posed or controlled by an appellant. 

A planning commission’s primary role is to recommend changes to land use ordinances to a legislative body, and to approve specific applications when authorized by a local ordinance.  Planning commissions may not alter zoning ordinances, and may not approve uses which are not allowed by local ordinances.  As part of the approval process however, a planning commission has some discretion to defer compliance with some requirements, when justified, and only for a limited period of time. 

The Judgment and Order issued by the Second District Court does not restrict the City’s authority to require a site plan for the property.  The Order required rezoning of some parcels, and issued an injunction against future prosecution for parking.  Nothing in the Order prevents the City from requiring a site plan, which is a reasonable requirement that will serve both the City and the property owners.

All property uses are subject to reasonable regulations, including nonconforming uses.  A land use that was lawfully established before being prohibited by a zoning ordinance may continue, but remains subject to reasonable regulation.  A regulation that promotes the public health, safety, and welfare is reasonable.  Requiring that parking areas be paved serves valid public interests, is a reasonable burden on the property owner, and does not impact or inhibit the claimed nonconforming use.

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Review

A request for an advisory opinion may be filed at any time prior to the rendering of a final decision by a local land use appeal authority under the provisions of Utah Code Ann. § 13-43-205.  An advisory opinion is meant to provide an early review, before any duty to exhaust administrative remedies, of significant land use questions so that those involved in a land use application or other specific land use disputes can have an independent review of an issue.  It is hoped that such a review can help the parties avoid litigation, resolve differences in a fair and neutral forum, and understand the relevant law.  The decision is not binding, but, as explained at the end of this opinion, may have some effect on the long-term cost of resolving such issues in the courts. 

A request for an Advisory Opinion was received from Harrisville City on May 28, 2009.  A copy of that request was sent via certified mail to Joseph M. Chambers, Attorney for C.E. Butters.  The return certificate, indicating that Mr. Chambers received the copy of the Request, was received by the Office of the Property Rights Ombudsman on June 2, 2009.  Several subsequent attempts were made to contact Mr. Chambers to request a response. On October 7, 2009, a letter was sent to Mr. Chambers, requesting a response to the City’s Request.  No response from C.E. Butters has been received.

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Evidence

The following documents and information with relevance to the issue involved in this advisory opinion were reviewed prior to its completion:

  1. Request for an Advisory Opinion, including attachments, filed May 28, 2009 with the Office of the Property Rights Ombudsman by Michael S. Junk, attorney for Harrisville City, including the following attachments:

i.      Parcel Map

ii.     Complaint, filed by SPSTire & ServiceCenter against Harrisville City, #030900388

iii.     Harrisville City Ordinances, Chs. 14-2, 4 (old), and 4 (new)

iv.     Memorandum Decision, Case No. 030900388

v.      Zoning Map, showing proposed areas for rezoning

vi.     Letter, Michael S. Junk to Joseph M. Chambers, dated January 23, 2007

vii.    Minutes of the September 10, 2008 meeting of the Harrisville City Council

viii.   Notice of Appeal of Conditional Use Permit, dated October 17, 2008, filed by Kevin Butters, agent for C.E. Butters/SPS Tire & Service Center

ix.     Letter from Greg Montgomery to Harrisville City Council, dated November 5, 2008

x.      Legal Opinion, prepared by Michael S. Junk for Harrisville City Council, dated December 10, 2008

xi.     Response to Legal Opinion, submitted by Joseph M. Chambers, attorney for SPSTire & ServiceCenter, dated February 24, 2009

xii.    Reply to Response, prepared by Michael S. Junk, dated March 4, 2009

xiii.   Letter from Greg Montgomery to Harrisville City Council, dated March 9, 2009

xiv.   Harrisville City Ordinances, Ch. 11.18, Conditional Use Permits

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Background

C.E. Butters Realty & Construction owns property in Harrisville, and operates a business known as SPS Tire and Service Center (“Butters”).[1]  The business has been on the property for several years.[2]  According to Butters an adjoining parcel was used as parking and servicing of vehicles during that time.  The adjoining parcel was in an agricultural zone, while the business was located on another parcel in a commercial zone.  Both parcels were purchased by the Butters Company in 2001. 

In 1994, the City granted a building permit to the previous owners, so they could expand their existing building.  According to Butters, the City specifically agreed that an adjoining parcel could be used for parking associated with the business.  The City’s Planning Commission also approved a conditional use permit for the expansion, including use of a portion of the adjoining parcel for parking and servicing.  Butters proceeded with the expansion, and continued to use the adjoining parcel for parking and servicing vehicles.[3]  The parcel was not paved.

In 2001, the City cited Butters for land use violations, claiming that parking on the adjoining parcel was not permitted in an Agricultural Zone.  Butters continued to use the parcel for parking and servicing, and requested that the City rezone the parcel to commercial, which would allow parking.  After a public hearing, the City Council denied the request.

Butters appealed the decision to the Second District Court.  In 2006, following a two-day trial, the court found that the City was obligated to rezone the parcel to commercial.[4] The City did not appeal that ruling, and proceeded to rezone the parcel to commercial. When Butters began constructing a new driveway on the parcel, the City requested that the company file a site plan.[5] 

Butters filed a plan, and requested approval for “private overflow parking” on an unpaved area of the parcel.  On October 10, 2008, the City’s Planning Commission conducted a public hearing on the site plan approval.  The Company’s owners stated that they were considering a new building in the “private overflow parking” area, but that they had no current plans for the building.  They did not want to pave the area, only to remove the paving later for a new building.

The Planning Commission was concerned about dust and other contamination on the overflow parking area.  Butters noted that the area had gravel, and that the company tried to control dust and weeds.  The company also stated that it had been using the area as parking for at least ten years.  After some discussion, the Planning Commission approved the site plan with some conditions.  One of those conditions allowed parking in the overflow area, provided gravel was laid down.  Parking in that area could not exceed three years. After three years, Butters could revisit the parking situation with the City and seek approval for more time, or pave the overflow area.[6]

Butters appealed the Planning Commission’s approval to the City Council, as provided by the City’s ordinances.  Butters specifically stated that it was only appealing the Paving Requirement.  In its appeal, the company requested that the City Council drop the Paving Requirement altogether. 

After some research into the issue, the City Council conducted a public hearing on the appeal on March 10, 2009.  At that meeting, the Council voted to modify the Paving Requirement by eliminating the three-year period, thus requiring paving immediately if the overflow area is used for parking.  The Council noted that the City’s ordinances required parking areas to be paved.[7]  Since Butters was undertaking new construction (by building the driveway), the Council reasoned that the company was required to comply with current requirements.  The matter was remanded back to the Planning Commission, with instructions that the Commission implement the requirements of the City’s current zoning ordinances.

The company objects to the Paving Requirement, and claims nonconforming use status to continue to use the property for parking without paving.  Butters also invokes a zoning estoppel argument, based on the 1994 conditional use permit, and the 2006 Order from the Second District Court.

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Analysis

I.             The City’s Appeal Authority May Uphold, Reverse, or Modify any Aspect of a Decision on a Land Use Application.

The Paving Requirement could be modified on appeal, because an appeal authority has power to modify decisions.  The Utah Code allows local governments to designate appeal authorities to consider appeals from land use decisions.  See Utah Code Ann. § 10-9a-701(1).  Different appeal authorities may be assigned for different types of appeals, including appeals to a city council. Id.  It appears that under the prior language of the Harrisville City ordinances, the City Council considered appeals from the Planning Commission’s decisions on site plans.  

Butters argues that the City Council could only consider the limited question of the whether the three-year Paving Requirement should be dropped altogether, and that it was not authorized to alter the requirement.  However, the Council may uphold, reverse or modify a decision.  Nothing in the materials that were submitted supports an argument that the City Council’s authority is limited.  Any appeal authority enjoys latitude to determine whether a land use decision was correct, Utah Code Ann. § 10-9a-707(3), and there is no reason to conclude that its review must be limited to a single question only, or be arbitrarily controlled by an appellant.[8] 

Even if the City Council’s scope of review is limited to the issue identified by Butters, the City Council issued a decision on the very issue identified in the appeal.  Butters got what it asked for—a decision on the Paving Requirement.  The City Council determined that the Planning Commission had misinterpreted the City’s ordinances, and removed the provision allowing parking in the unpaved area for a limited time.  However, it retained the requirement that the parking area be paved.

II.     The Planning Commission is Not Authorized to Grant a Use Not Allowed in the City’s Ordinances, But May Allow an Applicant a Reasonable Time for Compliance.

A planning commission exercises broad authority over land use applications, but that authority does not include the power to approve uses not otherwise allowed.  Planning commissions make recommendations to legislative bodies on land use issues, but are not authorized to alter land use ordinances.[9]  If a use is not allowed, a planning commission may not approve an application seeking to undertake that use.  To do otherwise would amount to legislatively amending an ordinance to add a use in the zone.

Butters proposed that it be allowed to use an unpaved area for “overflow parking.”  The company stated that it was considering using that area for a building, and, although there were no plans for construction, leaving the area unpaved would accommodate construction if and when it was undertaken.  The Planning Commission seemed to agree, but did not want to approve a perpetual right to park in the unpaved area.  Evidently as a means of compromise, the Commission allowed parking in the unpaved area for a three-year period, with the provision that Butters could then return to the Commission for possible renewal or alteration of the site plan.

The City’s ordinances do not provide for the type of “temporary” parking approved by the Planning Commission.  Parking is allowed in the CP-2 zone, provided it meets the City’s standards, which include paved surfaces.  The Commission approved a type of parking that does not satisfy the City’s standards.  No planning commission may do that.

However, it is possible that the commission could have deferred the requirement that the area be paved.  Section 11.22.050 of the City’s ordinances provides that some site improvements may be deferred.[10]  The property owner and the City may enter a written agreement outlining a timeframe to complete the improvements.[11]  If the Planning Commission could have accommodated Butters by allowing them time to pave the parking area, and having them enter a written agreement promising to comply with the City’s standards within a reasonable time.

III.    The City’s Authority to Require a Site Plan is not Limited by the Court Order.

Nothing could be found in the order issued by the Second District Court prohibiting the City from requiring Butters to file a site plan.  The Court ordered the City to rezone parcels owned by Butters from residential to commercial.  The City Council had refused the rezoning request, and the property owners appealed.  The Court entered extensive findings of fact, and concluded that the City’s denial of the rezoning was unreasonable.  The Court signed a Judgment on October 5, 2006, ordering the following:

Harrisville City is hereby ordered to designate all of parcel 0015 and south 200 feet of parcel 0066 as commercial (CP-2).  The remainder of parcel 0066 is designated necessary parking for the vehicles being serviced at the SPS facility.  Harrisville City is enjoined from prosecuting Plaintiffs for using any portion of parcel number 0066 and parcel 0015 as parking or temporary storage of vehicles being actually serviced and repaired at the repair facility. . . .

Harrisville City is further ordered to designate as commercial (CP-2) all of parcel 0018 and the south portion of parcel 0017 which lies within the commercial zone on Harrisville City’s Future Land Use Plan and Map. . . .

Judgment, Case No. 030900388 (October 5, 2006), at 2-3.[12]  The City did not appeal the decision, and rezoned the parcels. 

The Court’s order required rezoning and contained a prohibition against further prosecution for parking on two of the parcels involved.  No other action was required or prohibited.  The order therefore does not preclude the City from requiring a site plan for the parcels. 

Submitting a site plan does not constitute an excessive burden on the property owners.  Furthermore, a site plan may be beneficial to both the City and the property owners.  The Court noted that the dispute between Butters and the City has been marked by confusion and uncertainty.  For example, the precise location of buildings and even property lines seemed to be a significant factor in the dispute.  An accurate site plan of the business and the parcels will help avoid similar problems and conflicts in the future.   

Butters states that the City may not require a site plan, because parking on the parcels is a nonconforming use.  The Company relies upon Hugoe v. Woods Cross City, a case decided by the Utah Court of Appeals.[13]  The Hugoe decision held that a use may be legally established, and thus potentially entitled to nonconforming status, even if some requirements were not satisfied. 

In Hugoe, a property owner claimed that parking on its property was a nonconforming use, because the parking had been established before zoning ordinances prohibited the use.  The city argued that the property owner had never submitted a required site plan.  Since the site plan was required, the use was not “legally” established, and the property owner could not claim nonconforming use status.  The Court of Appeals rejected that argument, holding that failure to submit a required site plan did not invalidate the nonconforming use.[14]  In other words, parking was a permitted use whether a site plan is filed or not. 

The reliance on Hugoe is misplaced.  Butters argues that no site plan is required, because they claim nonconforming use status. That is not what the Hugoe decision holds.  The Court of Appeals did not hold that a site plan could not be required, only that a failure to file a site plan in the past did not affect whether a particular use had been legally established.  The site plan does not dictate whether a use is permitted, nor does it impact how the use is carried out.[15] 

Since the site plan serves an important purpose that benefits both the City and Butters, and because filing a plan is not an excessive burden, requiring a plan is acceptable.

IV.    The City May Require Compliance with Current Parking Ordinances.

Since all property uses are subject to reasonable regulation, Butters must comply with the City’s current standards for parking lots, including paving.  Butters claims that it is exempt from regulation because parking on its property was established before the City’s ordinances required paving.[16]  However, nonconforming use status simply means an established use that would no longer be permitted may continue, not that it is exempt from regulation.  The Utah Supreme Court recognized this principle in Gibbons & Reed Company v. North Salt Lake, 19 Utah 2d 329, 431 P.2d 559 (1967).  That case dealt with a city’s attempt to prevent excavation of sand and gravel from a parcel that had been rezoned as residential.  The Utah Supreme Court agreed that since excavation on the parcel had been established prior to the rezoning, it could continue as a nonconforming use. 

The city had also enacted ordinances governing how excavation was to be conducted.[17]  The court recognized that those ordinances were different than zoning regulations: 

The police power conferred upon this municipality must be exercised to provide for the safety, promote the general welfare, or to preserve the health of that community.  Under that power the [city] enacted this excavation ordinance.  This excavation ordinance must be examined differently than the zoning ordinance since it is a safety ordinance and nonconforming uses giving owners more freedom from such regulation cannot be established.

Gibbons & Reed, 19 Utah 2d at 337, 431 P.2d at 565 (citation omitted).  In other words, a nonconforming use is still subject to reasonable health and safety regulations. 

In Gibbons & Reed, the court referred to a U.S. Supreme Court case which upheld a local ordinance regulating excavation activity.  In Goldblatt v. Town of Hempstead, a town enacted an ordinance prohibiting excavation below the water table, in order to prevent contamination to underground water.[18]  The Supreme Court upheld the ordinance, even though it effectively deprived the property owner of the most beneficial use of the property.  The Court held that the ordinance was a valid exercise of the town’s police power:

The ordinance in question was passed as a safety measure, and the town is attempting to uphold it on that basis.  To evaluate its reasonableness we therefore need to know such things as the nature of the menace against which it will protect, the availability and effectiveness of other less drastic steps, and the loss which appellants will suffer from the imposition of the ordinance.

Goldblatt v. Town of Hempstead, 369 U.S. 590, 595 (1962).  The Court concluded that there was not enough evidence to sustain a finding that the ordinance was unreasonable.  In contrast, however, the Utah Supreme Court found that the local ordinance at issue in Gibbons & Reed was unreasonable, because the burden on the property owner outweighed the public benefit.[19]

The parcel that Butters proposes for parking is in a much different situation than the parcel to be excavated in Gibbons & Reed.  Paving the area is a comparatively small burden that does not in any way affect the use of the parcel for parking or even long-term storage of vehicles.  The same number of vehicles will be able to park on the parcel whether it is paved or not.  Since the use (parking) will not be diminished in any way, the property owner will not suffer any loss due to the paving requirement. 

Butters claims the paving requirement will impact their plans for a new building on the unpaved area.  However, they have no current plans for a building.  Paving does not preclude constructing a building in the future.  Admittedly, there are some minor additional costs to remove paving materials, but the public benefits of paving justify imposing the requirement.  If Butters wishes to construct a building, they should apply for a building permit and begin construction.  If they continue to use the parcel for parking, it must be paved.

Paving the parking area will help prevent contamination, reduce dust and mud, restrict the growth of weeds, and will control storm water runoff.  In addition, paving the area will contribute to the aesthetics of the area.[20]  These are important public concerns, and the City may impose regulations designed to promote them.[21]  An impermeable paving surface, such as asphalt or concrete, is the best alternative to prevent contamination and weed growth.  Therefore, the City’s requirement that all parking areas be paved is reasonable, and may be imposed upon the Butters property.[22]

In a similar situation, the Arizona Court of Appeals upheld a local ordinance which required paving of parking areas, even if the parking was a nonconforming use. “While nonconforming uses existing at the time zoning ordinance became effective cannot be prohibited, they are subject to reasonable regulations under the police power to protect the public health, safety, welfare, or morals.”  Watanabe v. Phoenix, 683 P.2d 1177, 1179 (Ariz. Ct. App. 1984).[23] The Arizona court also noted that paving “has no effect upon the nonconforming use,” because, like the Butters property, paving did not reduce or increase the number of vehicles that could be parked on the parcel.

In sum, simply because a use predated a zoning ordinance which prohibits it does not mean that the use is not subject to reasonable regulations.  The power to regulate by zoning implicates different interests than the general police power to regulate.  All legal uses are subject to reasonable regulations, regardless of when the use was first established.  Since paving a parking area is a reasonable means to promote important public interests, Butters must pave the parcel.[24] 

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Conclusion

The Harrisville City Council’s decision to alter the site plan approval granted by the City’s Planning Commission was permissible.  An appeal authority has latitude to approve, overturn, or modify a decision.  No authority has been cited that limits an appeal authority’s scope of review to only limited questions raised in an appeal.  In this matter, the property owners requested that the City Council review one condition imposed by the Planning Commission.  The City reviewed that condition, and altered it, which is within their authority.

A planning commission’s role is primarily to recommend land use decisions to a legislative body, and when authorized, to approve some land use applications.  A planning commission may not approve a land use that is not permitted, nor may it unilaterally alter a zoning ordinance.  In this matter, the City’s Planning Commission “temporarily” approved parking on an unpaved surface.  Such a use is not permitted under the City’s zoning ordinances, and the Planning Commission may not approve it.  

The Judgment and Order issued by the Second District Court requires that the City rezone certain areas, and enjoins the City from preventing parking on two parcels owned by Butters.  Nothing in the Order prevents the City from requiring a site plan for the property.  Both the City and the property owner are served by a site plan, because it should help clear up some of the confusion that has plagued this matter.  Since a site plan serves a valid purpose, and is a small imposition upon the property owners, it is a reasonable condition.

Finally, all uses are subject to reasonable regulation, including nonconforming uses.  A use that is lawfully established prior to being prohibited may continue, but it is still subject to regulation.  Paving promotes the public health, safety, and welfare by reducing dust and mud, preventing soil contamination, restricting weeds, controlling storm water, and contributing to the aesthetics of the area.  Paving also has no impact on the claimed nonconforming use, and is a relatively small burden on the property owner.  Since the public benefit outweighs the burden on the property owner, the City may require that all parking areas be paved. 

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Brent N. Bateman, Lead Attorney

Office of the Property Rights Ombudsman

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NOTE:

This is an advisory opinion as defined in § 13-43-205 of the Utah Code.  It does not constitute legal advice, and is not to be construed as reflecting the opinions or policy of the State of Utah or the Department of Commerce.  The opinions expressed are arrived at based on a summary review of the factual situation involved in this specific matter, and may or may not reflect the opinion that might be expressed in another matter where the facts and circumstances are different or where the relevant law may have changed. 

While the author is an attorney and has prepared this opinion in light of his understanding of the relevant law, he does not represent anyone involved in this matter.  Anyone with an interest in these issues who must protect that interest should seek the advice of his or her own legal counsel and not rely on this document as a definitive statement of how to protect or advance his interest. 

An advisory opinion issued by the Office of the Property Rights Ombudsman is not binding on any party to a dispute involving land use law.  If the same issue that is the subject of an advisory opinion is listed as a cause of action in litigation, and that cause of action is litigated on the same facts and circumstances and is resolved consistent with the advisory opinion, the substantially prevailing party on that cause of action may collect reasonable attorney fees and court costs pertaining to the development of that cause of action from the date of the delivery of the advisory opinion to the date of the court’s resolution.

Evidence of a review by the Office of the Property Rights Ombudsman and the opinions, writings, findings, and determinations of the Office of the Property Rights Ombudsman are not admissible as evidence in a judicial action, except in small claims court, a judicial review of arbitration, or in determining costs and legal fees as explained above.

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 Endnotes


[1] It appears that the business consists of three parcels, which are owned by C.E. Butters and SPS.  For the purposes of this Opinion, the property owners will be referred to as “Butters.”

[2] The existing building and business was a non-conforming use established by a previous owner. The business was evidently established before the City’s ordinances prohibited it.  It is not clear if parking on the adjoining parcel was legally established.

[3] The building expansion extended into yet another adjoining parcel, which was zoned as residential.

[4] The Court based is decision on the principle of zoning estoppel.  The Court reasoned that since the City had approved the permit in 1994 with specific reference to parking on the adjoining parcel, the City could not claim that parking was prohibited. 

[5] The driveway was not public, but only served the property.

[6] The Company stated that the overflow parking was “temporary,” but did not give a time frame indicating when the area would no longer be used for parking.  The Planning Commission was not willing to allow an unlimited “temporary” parking approval.

[7] A new ordinance governing parking had recently been adopted.  However, the paving requirement was also in the older ordinance, which dates to at least 1995.

[8] There may be multiple issues raised in an appeal that can be best resolved by the City Council before extensive litigation is undertaken.  In addition, only those issues presented to an appeal authority for decision may be argued before a district court.  See Pacific West Communities, Inc. v. Grantsville City, 2009 UT App 291, ¶ 19.  Limiting an appeal authority’s scope may cause a party to forfeit an issue for appeal.

[9] See Utah Code Ann. § 10-9a-302 (Planning commissions may recommend ordinance changes to a legislative body, but they are not authorized to approve the changes).

[10] The current language of Chapter 11.22 was adopted in April of 2009.  It is not known if the deferment provision was in earlier versions of the code.  However, even without specific authorization, under some circumstances it would reasonable to allow a property owner time to comply. 

[11] This approach differs from what the Planning Commission actually did.  There was no agreement or promise to comply, only an allowance that The Butters Company could continue to park on an unpaved area of their lot. 

[12] The Court’s order included property descriptions of the parcels.

[13] 1999 UT App 281, 988 P.2d 456.

[14] Id., 1999 UT App 281, ¶ 10, 988 P.2d at 459 (emphasis added).

[15] In addition, parking is no longer a nonconforming use, because it is permitted under the new zoning designation.

[16] As has been explained, parking on the property is no longer a nonconforming use.

[17]The ordinance prohibited excavation within 200 feet of a property boundary, required the owner to prepare contour maps of each excavated parcel, and required a rehabilitation plan for each parcel.

[18]See Gibbons & Reed, 19 Utah 2d at 337-38, 431 P.2d at 565, (citing Goldblatt v. Town of Hempstead, 369 U.S. 590 (1962)).

[19] The court specifically cited the cost of preparing a contour map, and the impossibility of preparing a rehabilitation plan, “because prior to excavation it is almost impossible to determine where the deposits lie.”  Gibbons & Reed, 19 Utah 2d at 338, 431 P.2d at 566.  The unique facts of Gibbons & Reed, along with the societal and economic values of the era in which it was decided helped drive the court’s analysis and decision.  If the same matter were considered today, there is a strong possibility that the ordinance would be upheld.  See e.g., Dock Watch Hollow Quarry Pit v. Township of Warren, 361 A.2d 12 (N.J. Super. Ct. App. Div. 1976) (upholding buffer zone as reasonable means to protect adjoining properties).

[20] Other nearby businesses have paved parking areas.

[21] See e.g., State v. Larson Transfer and Storage, 246 N.W.2d 176 (Minn. 1976) (paving parking areas serves important public interests, including safety and aesthetics); Watanabe v. Phoenix, 683 P.2d 1177 (Ariz. App. 1984).

[22] Butters also raised the question of whether the City’s interpretation of “paving” means an impervious surface such as asphalt or concrete.  A local government is allowed a degree of nonbinding deference when interpreting its own ordinances and requirements.  A solid, impervious surface best serves the public’s interest, so the City may require asphalt or concrete.

[23] See also Rhod-A-Zalea and 35th, Inc. v. Snohonish County, 959 P.2d 1024, 1031 (Wash. 1998); Miller & Son Paving, Inc. v. Wrightstown, 401 A.2d 392, 393 (Pa. Commw. Ct. 1979); Dock Watch Hollow, 361 A.2d at 20.

[24] Requiring paving would not be inconsistent with the Judgment issued by the Second District Court.  The court enjoined the City from prosecuting Butters for parking and storing vehicles on two parcels.  That injunction, however, does not mean that the City may not regulate how parking is to be carried out.  Furthermore, it appears that the two parcels identified in the Judgment are already paved.