B.A.M. Development, L.L.C. v. Salt Lake County

2004 UT App 34, 87 P.3d 710, 493 Utah Adv. Rep. 34, 2004 Utah App. LEXIS 8, 2004 WL 316141

• Court: Court of Appeals of Utah
• Decided: February 20, 2004
• Docket: 20010840-CA
• Status: Published

Opinions

OPINION

THORNE, Judge:

T1 B.A.M. Development, LLC. (BAM), appeals from a district court decision finding that no unconstitutional taking occurred when Salt Lake County (the County) required BAM to dedicate additional land as a condition of subdivision approval. We reverse and remand.

BACKGROUND

T2 In 1997, BAM sought to develop a subdivision located at 7755 West 3500 South in Salt Lake County, Utah. The Salt Lake County Planning and Zoning Commission (the Commission) granted preliminary approval for the proposed subdivision. In the original subdivision plat, BAM agreed to dedicate a forty-foot strip of land in anticipation of 3500 South being widened. In April 1998, the County informed BAM that after consulting with the Utah Department of Transportation (UDOT), the County had determined that BAM must dedicate an additional thirteen-foot strip of land abutting 3500 South in anticipation of future road expansion. BAM objected to the increase because it bad already drafted and divided the subdivision plots utilizing the forty-foot dedication.¹ BAM argued that increasing the dedication to fifty-three feet would alter several plots dramatically and would require reconfiguration of the subdivision at great expense. Without receiving any evidence, the Commis-gion denied BAM's license to develop their subdivision without the fifty-three-foot dedication.

3 BAM appealed to the Salt Lake County Board of Commissioners (the Board), by filing a "Notice of Claim" with the Board. In this Notice of Claim, BAM claimed that "{the uncompensated dedication and improvement of the additional roadway constitute[d] an unconstitutional 'taking, not reasonably justified by the actual impact created by the proposed development." Without conducting a hearing, taking evidence, or issuing findings, the Board upheld the Commission's decision.

T4 BAM then filed suit in district court claiming that the County's demand was unconstitutional because it was not roughly proportional, as required by Dolan v. City of Tigard, 512 U.S. 374, 391, 114 S.Ct. 2309, 2319-20, 129 L.Ed.2d 304 (1994). After trial, the district court found in favor of the County, concluding that the rough proportionality test did not apply. BAM objected to the district court's findings of fact and conclusions of law and filed a motion for a new trial The district court overruled BAM's objections and denied its motion for a new trial,. BAM appeals.

ISSUE AND STANDARD OF REVIEW

T5 BAM argues that the County's dedication requirement of thirteen additional feet constitutes a taking of its land without just compensation, in violation of the United States Constitution.² However, we must first determine whether the district court acted properly when it received evidence and then ruled on the constitutionality of the land-dedication requirement. Resolution of this issue requires statutory interpretation, which we review for correctness. See Valley Colour Inc. v. Beuchert Builders Inc., 944 P.2d 361, 363 (Utah 1997) (noting that " 'Tiln matters of pure statutory interpretation, an appellate court reviews a trial court's ruling for correctness and gives no deference to its legal conclusions' " (citations omitted)).

ANALYSIS

T6 The County Land Use Development and Management Act, see Utah Code Ann. § 17-27-101 to -1008 (2001), authorizes counties "to enact all ordinances, resolutions, and rules that they consider necessary for the use and development of land within the county ... unless expressly prohibited by law." Id. § 17-27-102(1)³ If a landowner disagrees with a county land use decision, that landowner can appeal the decision, pursuant to Utah Code Annotated section 17-27-1001. Section 17-27-1001(8)(a) provides that when a county's land use decision is appealed to the district court, that court shall "presume that land use decisions and regulations are valid; and determine only whether or not the decision is arbitrary, capricious, or illegal." Id. (emphasis added)⁴ "A determination of illegality requires a determination that the decision violates a statute, ordinance, or existing law." Utah Code Ann. § 17-27-1001(8)(b).

§°7 While no Utah Court has specifically addressed the standard of review applicable to appeals brought pursuant to section 17-27-1001, we have addressed the standard of review for appeals taken pursuant to Utah Code Annotated section 17-27-708 (2001), which contains language similar to that of section 17-27-1001⁵ Compare Utah Code Ann. § 17-27-708, with id. § 17-27-1001. In the absence of any case law interpreting section 17-27-1001, we, by analogy, rely upon case law interpreting section 17-27-708.⁶

18 In Patterson v. Utah County Bd. of Adjustment, 893 P.2d 602 (Utah Ct.App.1995), landowners sought a "special exception under a county zoning ordinance." Id. at 608. The county conducted a hearing, received evidence, and then granted the exception. See id. Pursuant to section 17-27-708, another landowner appealed the decision to the district court, where the county's actions were found to be "arbitrary, capricious, and illegal." Patterson, 893 P.2d at 603. The matter was then appealed to this court. See id. On appeal, the parties attempted to introduce new evidence. See id. at 610-11. We concluded, because the board of adjustments had conducted a hearing and received evidence, that we were limited to the existing record. See id. at 604. In reaching this conclusion, we stated:

Since the district court's review of the Board's decision was limited to a review of the Board's record, we do not accord any particular deference to the district court's decision. Instead, we review the Board's decision as if the appeal had come directly from the agency. Thus, the standard for our review of the Board's decision is the same standard established in the Utah Code for the district court's review.

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In determining whether substantial evidence supports the Board's decision we will consider all the evidence in the record, both favorable and contrary to the Board's decision. Nevertheless, our review, like the district court's review, "is limited to the record provided by the board of adjustment.... The court may not accept or consider any evidence outside the board['s] record. ..." We must simply determine, in light of the evidence before the Board, whether a reasonable mind could reach the same conclusion as the Board. It is not our prerogative to weigh the evidence anew.

Id. at 603-04 (citations and footnotes omitted.) ⁷

19 Here, neither the Commission, nor the Board, received evidence on whether the County's requirement of an additional thirteen feet was a "taking." Instead, both approved the County's action without a hearing. Consequently, the district court had no ree-ord to review. The lack of a record apparently prompted the district court to receive evidence and determine for itself whether the County had unconstitutionally taken BAM's property. However, the plain language of section 17-27-1001 does not authorize the district court to receive evidence. See Utah Code Ann. § 17-27-1002@)(a)⁸ Thus, we conclude that the district court is limited to the record made before the County and can determine only whether the County's decision was "arbitrary, capricious, or illegal." Id. § 17-27-1001(8)(a)(ii); see also Wilcox v. CSX Corp., 2003 UT 21,¶ 8, 70 P.3d 85 (noting that courts first look to the plain language of a statute and only look beyond the plain language if there is an ambiguity)⁹

$10 The absence of a record in this case is highly problematic, because historically, takings determinations are mixed questions of law and fact. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1071, 112 S.Ct. 2886, 2922, 120 L.Ed.2d 798 (1992) (Blackmun, J., dissenting) (noting that whether government action has deprived a claimant of his property without just compensation is an "essentially [an] ad hoc, factual inquir[y]"). Moreover, Utah courts also have acknowledged that evaluating the reasonableness of an exaction is a fact-intensive inquiry.

T11 In Home Builders Ass'n v. City of American Fork, 1999 UT 7, 973 P.2d 425, the Utah Supreme Court stated that "[exactions,] such [as] fees[,] are constitutionally permissible if the benefits derived from their exaction are 'of "demonstrable benefit" to the subdivision, and if newly developed properties are not required to bear more than their equitable share of the capital costs in relation to the benefits conferred." Id. at ¶ 14 (quoting Banberry Dev. Corp. v. South Jordan City, 631 P.2d 899, 905 (Utah 1981) (additional citation omitted)). In assessing the reasonableness of an exaction, a fact finder may consider, among other factors

(1) the cost of existing capital facilities; (2) 'the manner of financing existing capital facilities (such as user charges, special assessments, bonded indebtedness, general taxes, or federal grants); (8) the relative extent to which the newly developed properties and the other properties in the municipality have already contributed to the cost of existing capital facilities (by such means as user charges, special assessments, or payment from the proceeds of general taxes); (4) the relative extent to which the newly developed properties and the other properties in the municipality will contribute to the cost of existing capital facilities in the future; (5) the extent to which the newly developed properties are entitled to a credit because the municipality is requiring their developers or owners (by contractual arrangement or otherwise) to provide common facilities (inside or outside the proposed development) that have been provided by the municipality and financed through general taxation or other means (apart from user charges) in other parts of the municipality; (6) extraordinary costs, if any, in servicing the newly developed properties; and (7) the time-price differential inherent in fair comparisons of amounts paid at different times.

Id. at T5 (quoting Banberry, 631 P.2d at 903-04). This list, while not exhaustive, illustrates that the determination of whether an exaction is reasonable is a fact-intensive inquiry.

112 Here, the absence of a record at the administrative level prevented the district court from evaluating the propriety of the Board's action as directed by Utah Code Annotated section 17-27-1001(8)(a). We conclude that the district court erred when it received evidence on BAM's taking claim. The district court should have, instead, determined that the Board, in the absence of an adequate factual record, acted arbitrarily and capriciously in deciding BAM's takings claim.

{13 Thus, we reverse the district court's decision and remand the case directing the district court to enter a judgment that the Board acted arbitrarily and capriciously when it failed to conduct a hearing on BAM's takings claim. The district court should then remand the case to the proper county agency, directing that agency to conduct a proper hearing on BAM's takings claim.¹⁰

1 14 However, because we anticipate that a county body will have to determine the constitutionality of the exaction, we provide some guidance regarding the proper standard to apply. BAM argues that its property has been taken without just compensation.

The Takings Clause, which applies to the states through the Fourteenth Amendment, declares: "[NJor shall private property be taken for public use, without just compensation." U.S. Const. amend. V. One of the Clause's primary purposes is "'to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." "

Smith Inv. Co. v. Sandy City, 958 P.2d 245, 257 (Utah Ct.App.1998) (quoting Dolan v. City of Tigard, 512 U.S. 374, 384, 114 S.Ct. 2309, 2316, 129 L.Ed.2d 304 (1994). One type of "taking" associated with subdivision approval is a "development exaction."

[Djevelopment exactions may be defined as contributions to a governmental entity imposed as a condition precedent to approving the developer's project. Usually, exac-tions are imposed prior to the issuance of a building permit or zoning/subdivision approval. Development exactions may take the form of: (1) mandatory dedications of land for roads, schools or parks, as a condition to plat approval, (2) fees-in-lieu of mandatory dedication, (8) water or sewage connection fees, and (4) impact fees.

Salt Lake County v. Board of Educ., 808 P.2d 1056, 1058 (Utah 1991) (quotations and citations omitted); see also No. 13 Richard R. Powell, Powell on Real Property, § 79D.04[2l[al, 295-96, (Michael Allan Wolf ed., 2003) (noting that "exactions" are generally sought through several methods: (1) land dedication requirements, (2) land dedication requirement with fee option, (8) impact fees, or (4) in-kind exactions). In Dolan v. City of Tigard, 512 U.S. 374, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994) and Nollan v. California Coastal Comm'n, 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987), the United States Supreme Court developed a two-part test for determining whether a particular developmental exaction violated the takings clause of the United States Constitution.

{15 In Dolan, the Court concluded that for a development exaction to be constitutional, the government must show an " 'essential nexusg'... between the legitimate state interest'" and the land dedication requirement. 512 U.S. at 386, 114 S.Ct. at 2317 (citation omitted). The Court further explained that to succeed the government "must make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development." Id. at 391, 114 S.Ct. at 2319-20. The Court labeled this examination a "rough proportionality" test. Id. at 391, 114 S.Ct. at 2319.

116 Here, BAM was required to dedicate thirteen additional feet of land that abutted 3500 South before the County would approve its subdivision plat. We conclude that this constitutes a developmental exaction as de-seribed in Nollan and Dolan. Accordingly, the Nollan/Dolan "rough proportionality" test applies in this case. Therefore, upon remand, the reviewing body must determine: (1) whether requiring the exaction serves a legitimate government interest, and (2) whether there is a " 'rough proportionality'" between the exaction and the "impact of the proposed development." Dolan, 512 U.S. at 391, 114 S.Ct. at 2319-20; see also No. 13 Richard R. Powell, Powell on Real Property, § 79D.04[2][al, 295-96, (Michael Allan Wolf ed., 2003).¹¹

CONCLUSION

T17 We conclude that the district court exceeded its authority when it conducted a hearing and received evidence on BAM's takings claim contrary to the limits established in Utah Code Annotated section 17-27-1001(8)(a). The district court should have concluded that the Board acted arbitrarily and capriciously in deciding BAM's taking issue without conducting a hearing. Accordingly, we reverse the district court's decision, and remand directing the district court to set aside the Board's determination. The district court shall then identify the proper body to conduct a full hearing on the merits and remand the case to that body.

118 I CONCUR: RUSSELL W. BENCH, Judge.

1 . Below, BAM argued that "[the uncompensated dedication and improvement of the additional roadway constitutes an unconstitutional 'taking,' not reasonably justified by the actual impact created by the proposed development." (Emphasis added.) Thus, BAM did not challenge the dedication of the first forty feet of land and has waived review of that portion of the dedication.

2 . BAM also argued that the County violated Utah's constitutional protections of Equal Protection and Uniform Operation of Laws. However, because we find that the district court misinterpreted Utah Code Annotated section 17-27-1001 (2001) and received evidence in this case when it should have found the Board's treatment of BAM's takings claim to be arbitrary and capricious, and we remand on that basis, we need not address the takings question or the other issues raised by BAM.

3 . We cite to the most recent version of the statute for convenience. However, all amendments relevant to this opinion will be noted.

4 . Utah Code Annotated section 17-27-1001 provides, in relevant part:

(1) No person may challenge in district court a county's land use decisions made under this chapter or under the regulation made under authority of this chapter until that person has exhausted all administrative remedies.

(2) (a) Any person adversely affected by any decision made in the exercise of the provisions of this chapter may file a petition for review of the decision with the district court within 30 days after the local decision is rendered.

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(3) (a) The courts shall:

(i) presume that land use decisions and regulations are valid; and

(ii) determine only whether or not the de-cisfon is arbitrary, capricious, or illegal. (b) A determination of illegality requires a determination that the decision violates a statute, ordinance, or existing law.

Utah Code Ann. § 17-27-1001(1), (2)(a),-(3)(a)(b) (2001).

5 . Utah Code Annotated section 17-27-708 provides, in relevant part:

(1) Any person adversely affected by any decision of a board of adjustment may petition the district court for a review of the decision. (2)(a) The district court's review is limited to a determination of whether the board of adjustment's decision is arbitrary, capricious, or illegal.

(b) A determination of illegality requires a determination that the board of adjustment's decision violates a statute, ordinance, or existing law.

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(4)(a) The board of adjustment shall transmit to the reviewing court the record of its proceedings including its minutes, findings, orders and, if available, a true and correct transcript of its proceedings.

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(5)(a) ...

(i) If there is a record, the district court's review is limited. to the record provided by the board of adjustment. (i) The court may not accept or consider any evidence outside the board of adjustment's record unless that evidence was offered to the board of adjustment and the court determines that it was improperly excluded by the board of adjustment.

(b) If there is no record, the court may call witnesses and take evidence.

(6) The court shall affirm the decision of the board of adjustment if the decision is supported by substantial evidence in the record.

Utah Code Ann. § 17-27-708, (1), (2)(a), (4)(a). (5)(a), (5)(b), (6) (2001) (emphasis added).

6 . We acknowledge that the analogy to section 17-27-1708 is not perfect. For example, section 17-27-1708(5)(b) authorizes the district court to call witnesses and receive evidence if no record was made below, see id. § 17-27-708(5)(b), or if on review the district court determines that the Commission erroneously excluded evidence. See id. § 17-27-1708(5)(a)(ii). In contrast, section 17-27-1001 does not authorize the district court to receive evidence or call witnesses. However, this distinction merely strengthens our position that the district court erred in receiving evidence. In the case of section 17-27-1001, the legislature did not authorize the district court to receive evidence even though it had done so in other situations. See Utah Code Ann. § 17-27-708(5)(b). "[We" "presume that the legislature used each word advisedly and [we] give effect to the term according to its ordinary and accepted meaning."'" Department of Natural Res. v. Huntington-Cleveland Irrigation Co., 2002 UT 75,¶ 13, 52 P.3d 1257 (citations omitted). Accordingly, we conclude that section 17-27-1001 does not authorize the district court to receive evidence. Instead, the district court can only review the record made before the County.

Next, the dissent incorrectly claims that Sandy City v. Salt Lake County, 827 P.2d 212 (Utah 1992), prohibits our analogy to section 17-27-708. In Sandy City, the Utah Supreme Court cautioned against the use of statutes relating to cities in county-land-use appeals. See id. at 220. The court noted that "'the respective statutes dealing with cities and counties confer different powers.'" Id. (citations omitted). The court further noted, in a footnote, that in the earlier appeal to the Utah Court of Appeals, we had erroneously relied on a municipal statute, had applied an incorrect standard of review, and had limited our review to the administrative record. See id. n. 4.

In Sandy City, no statute governed appeals from county land-use decisions. See id. In contrast, here, section 17-27-1001 sets forth this court's standard of review-whether the county's action was "arbitrary, capricious, or illegal." Utah Code Ann. § 17-27-1001(5)(b). Furthermore, in Sandy City, this court erroneously applied a municipal standard of review to a county land-use decision. See Sandy City, 827 P.2d at 220 n. 4. Here, contrary to the dissent's claim, we do not substitute section 17-27-708 for section 17-27-1001. Instead, we simply look to cases interpreting similar language to determine how the legislature intended courts to review county land use decisions.

Next, the dissent implies that we apply the standard of review set forth in section 17-27-708, while ignoring section 17-27-1001. We do not substitute the standard of review in section 17-27-1708 for the one in section 17-27-1001. Instead, because of an absence of clear guidance by the legislature, we merely refer to section 17-27-708 by analogy because both statutes limit the district court's review to whether the county's decision is "arbitrary, capricious, or illegal." Compare Utah Code Ann. § 17-27-708(2)(a), with id. § 17-27-1001(3)(a).

Finally, the dissent makes much of the "County's concession in its brief that 'BAM followed the appeal procedure outlined in the Utah Statutes and corresponding Salt Lake County Ordinance provision[s].'" We agree. However, our focus is not on whether BAM followed the correct procedure, but whether the district court exceeded the scope of its authority pursuant to section 17-27-1001 when it received evidence in this case. Any "concession" made by BAM has no bearing on the propriety of the district court's actions.

7 . In Patterson v. Utah County Bd. of Adjustment, 893 P.2d 602 (Utah Ct.App.1995), we determined that appellate courts were bound by the record before the board of adjustments. See id. at 604. However, Patterson did not address the import of section 17-27-708(5)(b), which allows the district court to receive evidence if no record was made below. See Utah Code Ann. § 17-27-708(5)(1) (2001). Still, Patterson provides some guidance regarding how we should review appeals pursuant to section 17-27-1001, because it addresses a situation, like the one here, when the appellate court cannot receive evidence and can only determine, on the record before it, whether the administrative agency acted arbitrarily, capriciously, or illegally. See Patterson, 893 P.2d at 604.

8 . The dissent argues that even if we were to apply section 17-27-708 to the instant appeal "it would not change the result." We do not advocate the substitution of section 17-27-708 for section 17-27-1001. Instead, we simply refer to case law interpreting section 17-27-708 to support our conclusion that the district court's role in this case is limited to determining whether the Board acted arbitrarily, capriciously, or illegally in summarily denying BAM's taking claim.

9 . The dissent spends considerable time discussing the differences between board of adjustments and county commissions. We acknowledge the distinction between these two bodies, but note that review from both is limited to whether the decision was arbitrary, capricious, or illegal. This similarity is the basis for our analogy to section 17-27-708.

10 . Effective in 2000, Salt Lake County substantially changed its governmental structure. Prior to the change, the County was governed by three County Commissioners. We remand this case directing the district court to order a hearing on BAM's takings claim. However, in light of the change in county structure, remand to the Board of Commissioners is impossible. Thus, the district court must also determine which Salt Lake County governmental body should consider BAM's takings claim.

The dissent attacks this approach as "repugnant to the important principles of judicial economy." While we admit that in this case it might be quicker to ignore the appropriate standard of review and address the merits of this case, we would do so in direct opposition to the mandate of Utah Code Annotated section 17-27-1001. The more appropriate approach is to balance the desire for judicial economy against the need for judicial restraint. In this case, as in most cases, judicial restraint should, and does, prevail.

11 . In Dolan v. City of Tigard, 512 U.S. 374, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994), the United States Supreme Court announced for the first time a "rough proportionality" test to apply when evaluating the constitutionality of exac-tions. Id. at 391, 114 S.Ct. at 2319. In Dolan, the Court acknowledged that the majority of states have adopted a "reasonable relationship" test,. Id. The Court concluded that the "reasonable relationship" test was "close[ ] to the federal constitutional norm." Id. However, the Court declined to adopt the phrase "reasonable relationship" because of its similarity to the phrase "rational basis."" Id. In all other respects, it appears that the Court adopted a "reasonable relationship" test and simply renamed it the "rough proportionality" test.

Utah has also applied the "reasonable relationship" test when evaluating the constitutionality of an exaction. See, e.g., Home Builders Ass'n v. City of Am. Fork, 1999 UT 7,¶ 14-16, 973 P.2d 425 (applying the "reasonable relationship" test to a real estate development fee); Banberry Dev. Corp. v. South Jordan City, 631 P.2d 899, 905 (Utah 1981) (applying the " 'reasonable relationship' " test to a subdivision impact fee (citation omitted)).