Powell v. Town of Leeds

Opinion

2026 UT App 140

THE UTAH COURT OF APPEALS

LYNN POTTER AND DIANNA POWELL, Appellants and Cross-appellees, v.

TOWN OF LEEDS,

Appellee and Cross-appellant.

Opinion

No. 20230232-CA

Filed September 11, 2026

Fifth District Court, St. George Department The Honorable Jay Winward The Honorable Eric A. Ludlow The Honorable Ryan E. Christensen The Honorable Eric R. Gentry Nos. 220500524, 220500654, and 230500194

Freyja Johnson, Rachel Phillips Ainscough, and Mikayla Irvin, Attorneys for Appellants and Cross-appellees

H. Craig Hall, James C. Dunkelberger, Hyrum J. Bosserman, and KC Hooker, Attorneys for Appellee and Cross-appellant

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and JOHN D. LUTHY concurred.

HARRIS, Judge:

¶1 Lynn Potter and Dianna Powell (Landowners) own a parcel of land (the Property) in Leeds, Utah. They want to develop it by adding a road, a house, and a commercial building. But the Property contains a slope greater than 30%, and the Town of Leeds (the Town) has an ordinance (the Hillside Ordinance) that, in most cases, prevents anyone from developing land with a slope that steep. However, the Hillside Ordinance doesn’t apply to parcels that were subdivided before 1999, and Landowners contend that the Property falls into that category.

¶2 Over the course of the last seven years, Landowners have submitted two applications to the Town, each seeking permission to build on the Property, and the Town has denied both of them. Originally, the Town decided—after seeking an opinion from the Utah Office of the Property Rights Ombudsman (the Ombudsman)—to apply the Hillside Ordinance to the Property and determined that Landowners would be permitted to develop only a small part of it. And after that, the Town denied the second application on the basis that Landowners’ general request to build had already been fully considered and denied.

¶3 Three times, Landowners have filed petitions asking the district court to address the Town’s denials of their applications. Those cases were given three different case numbers and assigned to three different judges. And in all three cases, the courts dismissed Landowners’ petitions. The first one was dismissed for lack of subject-matter jurisdiction, after the court concluded that Landowners had failed to exhaust their administrative remedies. The second one was dismissed chiefly because the court concluded that it was identical to the first one, which had already been dismissed. The third one was dismissed for similar reasons.

¶4 The court in the second case awarded the Town attorney fees, ruling that the Town had substantially prevailed and that the case involved the same issue that had been the subject of the Ombudsman’s opinion. But the courts in the first and third cases declined to award fees to the Town.

¶5 Both sides now appeal various aspects of the three courts’ rulings, and after consolidating the three appeals, we consider the parties’ arguments together in this opinion. Landowners appeal the dismissal of the first and second cases, asserting (among other

20230232-CA 2 2026 UT App 140 things) that the first court had subject-matter jurisdiction and that the second application was materially different from the first one and should have been considered on its merits. Landowners also appeal the award of attorney fees to the Town in the second case. For its part, the Town cross-appeals the denial of its attorney fees requests in the first and third cases, and in addition it challenges the “without prejudice” status of the dismissal of the first case, asserting that the dismissal should have been with prejudice.

¶6 For the reasons discussed in this opinion, we affirm the first court’s dismissal of Landowners’ first petition for judicial review, but we remand the first case to the district court for the limited purpose of entering a dismissal with prejudice. And we affirm the courts’ decisions to deny the Town’s attorney fees requests in the first and third cases. Thus, the courts’ decisions in the first and third cases are affirmed in all respects, except for the dismissal status of the first case.

¶7 But we agree with Landowners that the court in the second case should have considered their petition on its merits, and we therefore reverse the dismissal of Landowners’ second petition for judicial review, as well as the court’s award of fees to the Town, and we remand the second case to the district court for further proceedings consistent with this opinion.

BACKGROUND

¶8 In 2017, Landowners bought the Property, which is “an 11.94-acre parcel of undeveloped land” in Leeds, Utah. The Property contains slopes steeper than 30%. Landowners want to develop it by building a road, a house, and a commercial building.

¶9 Several years earlier, in 2008, the Town had passed the Hillside Ordinance, whose stated purpose was “to protect the health, safety, and general welfare of the residents of the Town of

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Leeds by establishing procedures for the development of sensitive hillsides within the Town.” Leeds, Utah, Land Use Ordinance § 20.1. The “standards” set forth in the Hillside Ordinance were “intended to: 1) minimize adverse soils and slope instability; 2) decrease potential erosion; and 3) reduce the adverse [e]ffects of grading and cut and fill operations.” Id. The Hillside Ordinance was also “intended to preserve the natural character of hillsides and encourage development that is in harmony with the aesthetics and character of the Town.” Id. Significantly for present purposes, the Hillside Ordinance strictly prohibits “any development on land having a slope of thirty percent or more.” Id. § 20.2. But “[t]he requirements of [the Hillside Ordinance] shall not apply to developments or subdivisions that were approved prior to January 1, 1999.” Id. § 20.10.

The First Application

¶10 In 2019, Landowners filed their first “Site Plan Review Application” (First Application). Through this application, Landowners sought permission “to develop both a single-home residence and a commercial building on the Property.” In the First Application, Landowners included “grading plans with proposed routes to both the proposed residence and commercial building.”

¶11 Landowners presented the First Application to the Town’s Planning Commission (the Planning Commission) in January 2020. At that meeting, Landowners explained their development plan; they acknowledged that part of the plan involved an area of the Property that contained a slope greater than 30%, but they asserted that their development plan had mitigated any concerns and should nevertheless be approved. After some debate about the particulars of Landowners’ grading plan, the Planning Commission approved Landowners’ request, with some conditions. The Planning Commission assumed that the Hillside Ordinance applied to the Property, and it did not explore whether

20230232-CA 4 2026 UT App 140 the Property might be exempt from the Hillside Ordinance because it had been subdivided prior to 1999.

¶12 About a week later, the matter was reviewed by the Leeds Town Council (the Council). After some discussion, the Council “tabled” the matter until its next meeting in order to, among other things, be able to better assess “whether the Hillside Ordinance applies” to the Property, or whether it was exempt because it had been subdivided prior to 1999. At that next meeting, about one month later, the Council took up the matter again. An attorney representing the Town offered his opinion that the Property had not been “either developed or subdivided” prior to 1999 and that the Hillside Ordinance therefore applied to the Property. Extensive debate and questioning ensued about whether the Property had indeed been subdivided prior to 1999, with Landowners asserting that it had been. But the Council did not take a vote on the question; that meeting ended with another request for more information from Landowners. In particular, the Town’s mayor told Landowners that they were free to “put [their reasoning] in a presentation” explaining why they believed the Town’s attorney’s opinion was “incorrect,” and he even stated that such a presentation “would be valuable” to the Council. A few minutes later, the mayor reiterated that Landowners should “put [their reasoning] in writing” and that the Council would “look to review that argument at a future meeting.”

¶13 In the meantime, in April 2020, the Town requested an advisory opinion from the Ombudsman as to whether the Property was “subject to” the Hillside Ordinance. Some ten months later, in February 2021, the Ombudsman issued a written opinion (the Advisory Opinion) on the matter. The Advisory Opinion noted that, prior to 1999, the Property “underwent Town proceedings to subdivide a developable lot . . . for purposes of a sale,” but it concluded that “there [was] a lack of evidence that the [Council] took action to give final approval of” any subdivision. Thus, the Advisory Opinion determined that “the Town’s

20230232-CA 5 2026 UT App 140 conclusion” not to exempt the Property from the Hillside Ordinance “satisfie[d] the substantial evidence standard for a land use decision” and was “appropriate and lawful.” But the Advisory Opinion also stated that it was “incumbent on” Landowners, “as the party asserting the deficiency in the record, to conclusively establish through other forms of relevant evidence that the approval was in fact given,” and it offered its view that “[u]nless such evidence is provided to fill in the gaps of a deficient record, a ‘reasonable mind could reach the same conclusion’” the Ombudsman apparently believed the Town had reached in determining that the Property should not be exempted from the reach of the Hillside Ordinance.

¶14 After receiving the Advisory Opinion, the Council again discussed Landowners’ First Application at a public meeting (the June 2021 Meeting). At that meeting, no discussion was had about the merits of the Advisory Opinion; indeed, no mention was made of it at all. In particular, no discussion was had about whether the Property had been subdivided prior to 1999. Instead, a lengthy discussion was had about whether the slopes on the Property really were over 30% and how engineers measure such things. Landowners contended that, depending on the manner in which the slope was measured, the steepest slopes on the Property were around 29%. The Property had three buildable sites, “labeled A, B, and C.” Ultimately, the Council determined that the engineering evidence indicated that some of the slopes on the Property did in fact exceed 30%. Immediately thereafter, a councilmember made a motion “to approve building” on “Site A”—a part of the Property that did not involve slopes over 30%— “because of the ordinance” and to clarify that “[t]here shall be no development” on the other portions of the Property where the slope was “over 30%.” During the post-motion discussion, that same councilmember stated that his “heart ha[d] been with” Landowners the entire way but because Landowners’ “own engineer” had acknowledged that some of the proposed

20230232-CA 6 2026 UT App 140 development would be on land that was “over 30%,” the Council’s “hands [were] tied” given the language of the Hillside Ordinance. The motion passed by a 3-2 vote, thus allowing development on Site A but not on other parts of the Property. After the motion passed, the Town’s mayor stated that “the basis of that decision was driven by the need to disturb greater than 30% slope to get to Sites B and C.”

¶15 Landowners took no action within the next thirty days to appeal the decision the Council made at the June 2021 Meeting. Instead, Landowners set about finding additional evidence to support their claim that the Property had indeed been subdivided prior to 1999. And in March 2022, nine months after the June 2021 Meeting, Landowners were successful in obtaining a sworn affidavit (the Affidavit) from a former member of the Council who had served from 1996 to 1997. The Affidavit stated that the Property had been “approved by the [Council] as a minor lot subdivision for the purpose of building a residence back in 1997.” And it indicated, as “further proof of the Town’s intent to create a minor lot subdivision and approve building on the parcel,” that “the Town consented to a zone change that would accommodate the building of a residence.”

¶16 With this new evidence in hand, Landowners asked for the matter to be put on the agenda at an upcoming meeting of the Planning Commission. After tabling it for one month, the Planning Commission took the matter up at its June 2022 meeting. Following a discussion, including of the Affidavit, one of the commissioners made a motion to “recognize that the [Property] [had been] properly subdivided before 1999 and is therefore not subject to the Hillside Ordinance.” That motion passed by a 4-1 vote, and the matter was sent on to the Council for consideration.

¶17 The Council, however, refused to put the matter on its meeting agenda. On June 7, 2022, an attorney representing the Town sent a letter (the June 2022 Letter) to Landowners stating

20230232-CA 7 2026 UT App 140 that the matter would “not be place[d] on the June 8, 2022 or subsequent [Council] agendas” because Landowners’ request was “the same request” that the Council “considered” at the June 2021 Meeting. The attorney explained that “[t]his matter [had] been fully discussed [and] reviewed, and a decision [had been] made on that date,” and “[t]he circumstances ha[d] not changed.”

¶18 A few days later, on June 16, Landowners filed an administrative appeal of the Council’s decision, but the Town “refuse[d] to process” that appeal because, among other reasons, the Town believed that Landowners’ appeal was untimely because Landowners needed to have timely appealed from the decision made at the June 2021 Meeting, at which point the Town believed the First Application had been originally denied in full.

The First Lawsuit

¶19 Less than a month after receiving the June 2022 Letter, Landowners filed a petition for judicial review with the district court (the First Lawsuit). In the petition, Landowners complained that they had never received a substantive review of their First Application, because (in their view) the Council had failed to actually approve or deny it during the June 2021 Meeting and because the Council had later (in 2022) refused to put the matter back on its agenda for review of their new evidence, including the Affidavit. In their prayer for relief, Landowners asked the court to enter an order determining that the Property had been subdivided prior to 1999 and that it was therefore “exempt from the requirements” of the Hillside Ordinance.

¶20 The Town responded by filing a motion to dismiss the First Lawsuit. In that motion, it argued that the court did not have subject-matter jurisdiction over Landowners’ suit because Landowners had failed to exhaust their administrative remedies by not timely filing an administrative appeal from the Town’s decision at the June 2021 Meeting. The Town also asserted that, in

20230232-CA 8 2026 UT App 140 any event, Landowners had failed to state a claim upon which relief could be granted. And the Town asked the court to award it attorney fees under a statute concerning advisory opinions issued by the Ombudsman, which allows a court the option of awarding fees to a “substantially prevailing party” in a case in which “the same issue that [was] the subject of” an advisory opinion issued by the Ombudsman “is subsequently litigated” and the court resolves the issue “consistent with the advisory opinion.” See Utah Code § 13-43-206(12) (2021). 1

¶21 In opposition, Landowners asserted that they had not failed to exhaust their administrative remedies because, in their view, their appellate clock had not started ticking until after the June 2022 Letter. As they saw it, the Council had not made any “appealable land use decision” at the June 2021 Meeting regarding the applicability of the Hillside Ordinance to the Property. Specifically, Landowners argued that “because the issue voted on” in the June 2021 Meeting concerned just the approval of development for Site A, that issue “was not the one requested in the [First] Application” and therefore the Council’s decision “could not constitute a final land use decision” regarding the First Application. In their memorandum, Landowners made no argument—even in the alternative—that the Council had issued multiple appealable land use decisions: one at the June 2021 Meeting and another in the June 2022 Letter.

¶22 The court held a hearing to consider the Town’s motion to dismiss. At that hearing, Landowners argued that even though the First Application had gone “before the [Council] multiple times,” the Council had never “consider[ed] any motion to . . .

1. This statute has been amended since the events at issue in this opinion occurred. We cite the version that was in effect at the time the Advisory Opinion was issued and the lawsuits were filed.

20230232-CA 9 2026 UT App 140 approve or deny [that] application.” And later, Landowners also asserted that the Council “did not deny” the First Application.

¶23 The district court granted the Town’s motion to dismiss, concluding that the court lacked subject-matter jurisdiction because Landowners had “failed to comply with the Town’s exhaustion requirements.” It determined that the Council had fully denied the First Application at the June 2021 Meeting, meaning that Landowners needed to have timely filed an administrative appeal from that decision, and that because they did not, they had not exhausted their administrative remedies. At the hearing on the motion, the Town had requested a dismissal with prejudice, arguing that the court had no subject-matter jurisdiction over Landowners’ petition and that Landowners had “waived [their] right” to seek relief in the district court “forever by failing to timely appeal the land use decision.” But the court dismissed Landowners’ petition “without prejudice,” reasoning that the case was in “such an early stage of the litigation.” And it denied the Town’s request for an award of attorney fees, noting in its oral ruling that the relevant statute used the word “may” and stating that it was “choosing not to award” attorney fees.

The Second Application

¶24 In July 2022, a few weeks after receiving the June 2022 Letter and while the First Lawsuit was pending, Landowners filed a second “Site Plan Review Application” for “Sites B and C” (the Second Application). At the top of the Second Application’s cover page, Landowners had written “Grading plan,” and near the bottom of the page they included a note that read, “The Brown Consulting Engineering Plan is an overlay of the PV Engineering Plan; we want to apply both to the application to leave our most options open.” (Emphasis in original.) These notes had not been included on the First Application’s cover page. The Second Application also included an attachment—a “Rough Grading Plan”—that had not been previously included with the First

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Application; that grading plan proposed different cut and fill amounts for the Property, as well as a new route for a road. 2 In all other respects, the attachments included with the Second Application were identical to those that had been included with the First Application.

¶25 In an email sent by the Town’s mayor to Landowners, the Town rejected the Second Application. In that email, the mayor stated simply that “the submitted plans . . . violate[d]” the Hillside Ordinance and that therefore the Town would “not consider[] them.” Three weeks later, Landowners filed an administrative appeal, but the Town rejected that appeal because it believed its contents had already been “considered in full,” given the Town’s conclusion that the proposal in the Second Application was “identical” to the proposal contained in the First Application.

The Second Lawsuit

¶26 Landowners then filed another petition for judicial review (the Second Lawsuit). In that petition, Landowners asserted that the Town had failed to substantively review the Second Application and had improperly refused to consider Landowners’ administrative appeal.

¶27 The Town responded by filing a motion to dismiss the Second Lawsuit. In its motion, the Town made some of the same

2. The district court determined that the First Application and the Second Application were “identical,” offering its view that the two applications concerned “the same exact areas for development (Sites B and C) and the same exact route to get there.” But in our review, the “Rough Grading Plan” included with the Second Application shows a proposal for a road that was different from what was proposed in the First Application. Counsel for Landowners agreed with this interpretation during oral argument before this court.

20230232-CA 11 2026 UT App 140 arguments it had made in its motion to dismiss the First Lawsuit. But this time around, the Town also argued that Landowners could not “restart their administrative appeals clock by refiling an identical application.” And it contended that because, in its view, the First and Second Applications were identical, Landowners had no right to a “second separate review of an essentially identical application.” The Town also requested attorney fees pursuant to the same statute it had invoked in the First Lawsuit. See Utah Code § 13-43-206(12) (2021).

¶28 Landowners opposed the Town’s motion to dismiss. They first argued that the Second Application was not identical to the First Application because the two applications “differ[ed] in substance and purpose.” In particular, Landowners noted the differences in cover pages, grading plans, and road paths, and they explained that the duplicative attachments were meant to merely “serve as a reference.” They then repeated similar arguments made in their opposition to the motion to dismiss the First Lawsuit, including that their applications had never been “substantively reviewed.”

¶29 The court granted the Town’s motion to dismiss the Second Lawsuit. First, the court concluded that it “lack[ed] subject matter jurisdiction because” Landowners had “failed to timely exhaust their administrative remedies.” It held that the First Application and the Second Application requested the same land use decision and that because Landowners had failed to timely appeal the First Application after the June 2021 Meeting, their failure to exhaust administrative remedies regarding the First Application also doomed the Second Application. Further, the court held that Landowners’ filing of the Second Application did not start the time for appeal anew because it was “[d]uplicative” of the First Application. The court identified three differences between the First Application and Second Application, but it concluded that “[n]one of these distinctions [were] material.”

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¶30 The court also concluded that Landowners’ “claims in the Second [Lawsuit were] barred under the doctrine of issue preclusion.” It determined that the court in the First Lawsuit had “considered the same issues and arguments” that Landowners were attempting to raise in the Second Lawsuit. It identified six issues that it believed to be common to both the First Lawsuit and the Second Lawsuit:

(i) the [Council] “unilaterally changed” the First Application, (ii) the [Council] failed to “substantively review” the First Application, (iii) the [Council] never “fully rejected” the First Application until [the June 2022 Letter] nearly a year later, (iv) the [Council] did not issue a “land use decision,” (v) [Landowners’] presentation in front of the Planning Commission [in June 2022] somehow restarted [Landowners’] time to appeal, and (vi) [Landowners] were not required to exhaust their administrative remedies because doing so would be futile.

For similar reasons, the court concluded that Landowners also failed to state a claim. It determined that the First Application “was more than substantially reviewed” and that “nothing in [the] law” “entitle[s] a second separate review of an essentially identical application.”

¶31 Finally, the court awarded the Town its attorney fees for the Second Lawsuit. It stated that “[t]he entire purpose of the [ombudsman] advisory opinion statute is to dissuade parties from bringing their land use disputes formally in court.” It recognized that the Town had “spent significant time and resources briefing the issues before the [Ombudsman],” and it determined that, on review, Landowners were asking the court “to make the same determination” the Ombudsman had been asked to make—“that the Property was validly created by subdivision prior to January

20230232-CA 13 2026 UT App 140 1, 1999” and “that the Property is exempt from the requirements of” the Hillside Ordinance. Thus, it awarded the Town its “fees and costs in defending its decision,” and it later quantified that award by ordering Landowners to pay the Town $48,618.84.

The Third Lawsuit

¶32 While the Second Lawsuit was still being adjudicated, Landowners filed a “Complaint for Declaratory Judgment” (the Third Lawsuit). In the Third Lawsuit, Landowners again made arguments surrounding the procedural history of the First Application and the Second Application. The Town filed a motion to dismiss the Third Lawsuit. It requested attorney fees pursuant to the ombudsman advisory opinion statute, see Utah Code § 13- 43-206(12) (2021), and under Utah’s bad-faith attorney fees statute, see id. § 78B-5-825. The court ultimately granted the Town’s motion to dismiss the Third Lawsuit. Regarding attorney fees, however, the court denied the Town’s request, concluding that Landowners had not acted in bad faith. The court also declined to exercise its discretion to award fees pursuant to the ombudsman advisory opinion statute, noting that “there’s probably a basis” upon which it “could award” attorney fees pursuant to that statute but “[it wasn’t] going to.”

ISSUES AND STANDARDS OF REVIEW

¶33 Both parties appeal various decisions of the courts in the three cases. First, Landowners challenge the order dismissing the First Lawsuit for lack of subject-matter jurisdiction. Were we to reach the merits of that question, we would review the district court’s decision for correctness. See McKell v. McKell, 2024 UT App 72, ¶ 18, 549 P.3d 654 (“Because a [district] court’s grant or denial of a motion to dismiss is a question of law, the standard of review is correctness.” (cleaned up)). But before addressing the merits of this challenge, we must address the Town’s assertion that

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Landowners failed to preserve their specific legal theory for appellate review. “When a party fails to raise and argue an issue in the [district] court, it has failed to preserve the issue, and an appellate court will not typically reach that issue absent a valid exception to preservation.” State v. Johnson, 2017 UT 76, ¶ 15, 416 P.3d 443. As discussed below, we agree with the Town that Landowners failed to preserve their appellate theory for our review, and we therefore do not reach the merits of Landowners’ challenge to the order dismissing the First Lawsuit.

¶34 Regarding the dismissal of the First Lawsuit, the Town raises an issue on cross-appeal: it asserts that the dismissal should have been with prejudice. “A district court’s decision to dismiss with [or without] prejudice is reviewed for an abuse of discretion.” Rodriguez v. Crosby, 2024 UT App 7, ¶ 10, 543 P.3d 206 (cleaned up).

¶35 Next, Landowners challenge the order dismissing the Second Lawsuit. As already noted, we review this issue for correctness. See McKell, 2024 UT App 72, ¶ 18.

¶36 Finally, both Landowners and the Town bring challenges regarding attorney fees. Landowners challenge the court’s award, made pursuant to the ombudsman advisory opinion statute, of attorney fees in the Second Lawsuit. And the Town challenges the courts’ decisions, in the First and Third Lawsuits, not to award attorney fees pursuant to that same statute. “We review a district court’s decision to award attorney fees for an abuse of discretion, but [we] review its underlying legal conclusions for correctness.” Miner v. Miner, 2025 UT App 64, ¶ 13, 571 P.3d 788 (cleaned up), cert. denied, 574 P.3d 526 (Utah 2025). To the extent that the district court’s analysis involved statutory interpretation, we review the court’s conclusions for correctness. See State v. Thurman, 2022 UT 16, ¶ 13, 508 P.3d 128 (“We review questions of statutory

20230232-CA 15 2026 UT App 140 interpretation for correctness, affording no deference to the district court’s legal conclusions.” (cleaned up)). 3

3. The Town also asserts two other arguments that we reject. First, it argues that “even if the Town somehow failed to comply with its ordinances, Landowners failed to demonstrate prejudice.” It contends that Landowners did not meet their burden to prove that there would have been a reasonable likelihood of a different outcome if the Council had reviewed their appeal with the Affidavit. We reject the Town’s argument because there is evidence supporting a reasonable likelihood of a different result—the Planning Commission already considered the Affidavit, found it persuasive, and decided that the Hillside Ordinance didn’t apply because the Property had been subdivided prior to 1999.

Second, the Town argues that “Landowners’ failure to challenge the decision of the district court in the Third Lawsuit renders Landowners’ appeal moot.” It asserts that “[b]ecause the Third Lawsuit resulted in a final judgment based on claim preclusion and issue preclusion, a decision reversing the outcome of the First and Second Lawsuits would have no practical effect.” We do not find this argument to be well taken either. The Third Lawsuit was a “Complaint for Declaratory Judgment” and made arguments surrounding the procedural history of the First and Second Applications, not the merits of Landowners’ issues. Because of this, the dismissal of the Third Lawsuit has little bearing on the merits of the First and Second Lawsuits and does not make the relief requested there “impossible or of no legal effect.” See State v. Legg, 2016 UT App 168, ¶¶ 9–10, 380 P.3d 360 (cleaned up). We therefore reject this argument as well.

20230232-CA 16 2026 UT App 140

ANALYSIS

I. The First Lawsuit

¶37 We first address Landowners’ challenge to the district court’s order dismissing the First Lawsuit on the basis that they had failed to exhaust their administrative remedies. Because we agree with the Town that Landowners failed to preserve their specific legal theory for appellate review, we need not reach the merits of Landowners’ argument. And we also agree with the Town that the court’s dismissal order should have been issued with prejudice to future refiling.

A. Preservation of Landowners’ Legal Theory

¶38 On appeal, Landowners challenge the district court’s dismissal of the First Lawsuit. In particular, the legal theory they advance here is that the June 2022 Letter “refusing to act on the Planning Commission’s recommendation was a separate land use decision” from any decisions the Council made at the June 2021 Meeting. They similarly assert that no law or policy “dictate[s] that a land use authority can render only one land use decision on an application.” On appeal, they do not appear to contest the assertion that the decision made at the June 2021 Meeting constituted a final and appealable land use decision, but they contend that—even if that is true—the Town made another appealable land use decision when it sent Landowners the June 2022 Letter; indeed, they refer to the June 2022 Letter as “a new land use decision.” The determinative question here, as concerns preservation, is whether Landowners advanced this same legal theory before the district court.

¶39 Appellate courts “generally will not consider an issue unless it has been preserved for appeal.” Patterson v. Patterson, 2011 UT 68, ¶ 12, 266 P.3d 828. “To preserve an issue for appeal, a party must present it to the [district] court in such a way that the

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[district] court has an opportunity to rule on that issue.” State v. Doyle, 2018 UT App 239, ¶ 13, 437 P.3d 1266 (cleaned up); see also State v. Dowhaniuk, 2025 UT App 100, ¶ 15, 574 P.3d 1000 (“The purpose of this rule is to put the district court on notice of an issue and provide it with an opportunity to rule on it.” (cleaned up)).

¶40 Utah appellate courts have defined “issues” “narrowly” and have emphasized “that an appellant raises a new issue when the appellant raises a legal theory entirely distinct from the legal theory the appellant raised to the district court.” Ahhmigo, LLC v. Synergy Co. of Utah, 2022 UT 4, ¶ 18, 506 P.3d 536 (cleaned up); accord Lavender v. FCOI Pres., LLC, 2025 UT App 47, ¶ 47, 569 P.3d 1037, cert. denied, 570 P.3d 660 (Utah 2025); see also True v. Utah Dep’t of Transp., 2018 UT App 86, ¶ 32, 427 P.3d 338 (“An argument based upon an entirely distinct legal theory is a new claim or issue and must be separately preserved.” (cleaned up)). Indeed, we have explained that even if “the overarching issue . . . was before the district court” but the “distinct legal theory now advanced on appeal” was not, then that specific legal theory remains unpreserved. True, 2018 UT App 86, ¶ 22; see also id. (observing that the broader issue of causation was before the district court but nevertheless determining that the appellant’s specific legal theory regarding causation was not preserved); cf. State v. Winter, 2024 UT App 98, ¶ 16, 554 P.3d 355 (holding that because the appellant “made no mention” of his appellate legal theory “in his arguments to the district court” and “did not ask the district court to weigh in on” it, the theory was unpreserved (cleaned up)).

¶41 Here, the Town asserts that Landowners are raising a legal theory on appeal that is different from the one they asserted before the district court. As the Town sees it, Landowners’ position below was that the June 2021 Meeting “was not a land use decision” and that no “final decision on the First Application” took place “until the June 2022 Letter.” Thus, Landowners’ position was that there was only ever one final decision—the one

20230232-CA 18 2026 UT App 140 contained in the June 2022 Letter; Landowners never argued, to the district court, that there could have been multiple final decisions that were each appealable. The Town therefore asserts that, as the matter was framed by Landowners to the district court, “the only issue the district court had to decide was whether the [Council] actually denied the First Application . . . during the [June 2021 Meeting]” and that the court therefore “never had an opportunity to address whether a municipality can make ‘multiple’ appealable land use decisions” on a land use application. The Town contends that Landowners’ theory on appeal—that final appealable land use decisions were made both at the June 2021 Meeting and in the June 2022 Letter—is “an entirely new legal theory.” After reviewing the record, we find the Town’s arguments on this point persuasive, and we therefore agree with the Town that the legal theory Landowners now raise on appeal is unpreserved for our review.

¶42 In their response to the Town’s motion to dismiss the First Lawsuit, Landowners argued that the June 2022 Letter was the final, appealable land use decision that started their appellate clock ticking. In connection with this argument, Landowners argued vigorously that the Town had made no final decisions at the June 2021 Meeting and that, therefore, nothing that happened at that meeting could have started their appellate clock. They asserted that the Council had not made an “appealable land use decision” at the June 2021 Meeting because—in their view—the Council made a final decision only on Site A and thus the Council’s decision “could not constitute a final land use decision” regarding the entirety of the First Application. Landowners even asserted, at oral argument before the district court, that the Council had never “consider[ed] any motion to . . . approve or deny” the First Application.

¶43 In our view, the Town accurately characterizes the way the issues were framed for the district court—as a binary question, namely, whether the decision made at the June 2021 Meeting

20230232-CA 19 2026 UT App 140 constituted a final appealable land use decision on the First Application. If it did, then Landowners failed to file a timely administrative appeal; if it did not, then Landowners’ efforts to appeal following the June 2022 Letter were timely. In this context, the district court had no legitimate opportunity to consider whether the Town could have made multiple appealable land use decisions regarding the First Application, which is the legal theory Landowners raise here on appeal.

¶44 To be sure, the broader issues of subject-matter jurisdiction and exhaustion of administrative remedies were raised below. But as noted, simply raising the “overarching issue” is not enough to achieve preservation if the “distinct legal theory now advanced on appeal” was not raised. See True, 2018 UT App 86, ¶ 22. And in this case, Landowners asked the district court to adopt a different legal theory (that the June 2021 Meeting involved no actual decision on the First Application and therefore no final appealable land use decision) in response to the Town’s motion to dismiss from the one they are advancing here on appeal (that even if the June 2021 Meeting led to a final appealable land use decision, the Town could make multiple such decisions involving the same application and that the Town did just that by issuing a “new” final land use decision in connection with the June 2022 Letter). Without Landowners presenting this specific legal theory to the district court, the court “had no opportunity to rule on” it. See Doyle, 2018 UT App 239, ¶ 13 (cleaned up).

¶45 Landowners push back on this conclusion by arguing that their appellate arguments are preserved because they “expressly argued below that the June 2022 [L]etter was the land use decision that they needed to appeal.” We recognize that Landowners did argue below—and are also arguing here—that the June 2022 Letter was the land use decision that triggered their appellate clock, but they are offering a different legal theory here on appeal as to why that is so. Below, they asserted that no final decision on the First Application had been made at the June 2021 Meeting. On

20230232-CA 20 2026 UT App 140 appeal, they appear to have abandoned this legal theory and are instead arguing that the Town made multiple appealable land use decisions in connection with the First Application. These are different legal theories.

¶46 For these reasons, we agree with the Town that Landowners failed to preserve for appellate review the specific legal theory they are now raising in connection with their challenge to the district court’s order dismissing the First Lawsuit. Because Landowners’ theory is not preserved, we do not reach its merits, and on that basis we are unable to discern any error in the court’s decision to dismiss the First Lawsuit.

B. With or Without Prejudice

¶47 On cross-appeal, the Town challenges the method in which the district court dismissed the First Lawsuit. The Town argues that the court incorrectly dismissed the First Lawsuit without prejudice, and the Town asserts that failing to exhaust administrative remedies is a “jurisdictional” error that “cannot be cured.” Not only do Landowners disagree, but they also assert that the Town’s argument is unpreserved. We disagree with Landowners’ assertion that the Town’s contentions are unpreserved, and on the merits, we agree with the Town that the dismissal of the First Lawsuit should have been with prejudice.

¶48 We must first assess whether the Town’s arguments on this issue are preserved. Landowners assert that the Town failed to preserve its argument that the court’s “decision is contrary to law because Landowners’ failure to exhaust cannot be cured, meaning the case should have been dismissed with prejudice.”

¶49 As we have already explained, see supra ¶¶ 39–40, an issue is preserved if it was “present[ed] . . . to the [district] court in such a way that the [district] court has an opportunity to rule on that issue.” Doyle, 2018 UT App 239, ¶ 13 (cleaned up). And when an

20230232-CA 21 2026 UT App 140 appellate “argument [is] based upon an entirely distinct legal theory,” that theory is considered “a new claim or issue and must be separately preserved.” True, 2018 UT App 86, ¶ 32 (cleaned up).

¶50 Here, the legal theory the Town relied on below in support of its request for dismissal of the First Lawsuit with prejudice is the same legal theory that it now advances on appeal. Below, when asked by the court why the “case should be dismissed with prejudice,” the Town’s attorney stated, “In this case, because [Landowners] failed to timely exhaust their administrative remedies, this court has no subject matter jurisdiction over the petition, and they cannot continue to seek to relitigate this land use decision over and over. They have waived that right . . . forever by failing to timely appeal the land use decision.” This is the same legal theory the Town advances on this point here on appeal, where the Town asserts that the First Lawsuit “should have been dismissed with prejudice” “because Landowners’ failure to exhaust cannot be cured.” In our estimation, asserting that the failure to appeal in 2021 resulted in Landowners “waiv[ing]” that right “forever” is functionally equivalent to asserting that Landowners’ “failure to exhaust cannot be cured.” We therefore reject Landowners’ assertion that the Town failed to preserve its appellate legal theory for our review.

¶51 We turn now to the merits of the Town’s argument. The Town asserts that the dismissal should have been with prejudice because “Landowners’ failure to timely appeal the Town’s land use decision cannot be cured because Landowners cannot go back in time and fix the defect.” This argument is well taken.

¶52 Under Utah’s Municipal Land Use, Development, and Management Act (MLUDMA), certain requirements must be met before a district court may review a land use decision. Importantly, the version of MLUDMA in effect at the time stated, “No person may challenge in district court a land use decision until that person has exhausted the person’s administrative

20230232-CA 22 2026 UT App 140 remedies . . . .” Utah Code § 10-9a-801(1) (2022). 4 It also stated that “[a]s a condition precedent to judicial review, each adversely affected party shall timely and specifically challenge a land use authority’s land use decision, in accordance with local ordinance.” Id. § 10-9a-701(2); see also Leeds, Utah, Land Use Ordinance § 3.9 (setting forth the Town’s administrative “appeal process”). Our supreme court has stated that “[w]here the legislature has imposed a specific exhaustion requirement . . . , we will enforce it strictly.” Patterson v. American Fork City, 2003 UT 7, ¶ 17, 67 P.3d 466. “Strict enforcement of this provision dictates that if a party fails to exhaust its administrative remedies prior to filing suit, the suit must be dismissed.” Salt Lake City Mission v. Salt Lake City, 2008 UT 31, ¶ 6, 184 P.3d 599 (cleaned up); see also Ramsay v. Kane County Human Res. Special Service Dist., 2014 UT 5, ¶ 17, 322 P.3d 1163 (stating that if a “court determines it lacks subject matter jurisdiction” after parties “failed to exhaust their administrative remedies,” that court “retains only the authority to dismiss the action” (cleaned up)).

¶53 Our caselaw makes clear that if a party fails to exhaust its administrative remedies, the district court should dismiss the case for lack of subject-matter jurisdiction. See Ramsay, 2014 UT 5, ¶ 17. But our cases do little to clarify whether that dismissal should be with prejudice or without prejudice. See, e.g., American Fork City, 2003 UT 7, ¶¶ 5, 21 (affirming a district court’s dismissal with prejudice after the parties there “failed to exhaust their administrative remedies” “before filing in district court,” but doing so without any further discussion).

¶54 Given the absence of useful local precedent, the Town points to caselaw from other jurisdictions, and we find those citations helpful here. For example, in Berry v. Kerik, the court set

4. The statutes cited in this paragraph were renumbered in 2025 and amended in 2026. We cite the version in effect at the time Landowners filed the First Lawsuit.

20230232-CA 23 2026 UT App 140 out to “clarify whether a district court should dismiss with or without prejudice a prison conditions complaint by a prisoner who ha[d] not exhausted administrative remedies.” 366 F.3d 85, 86 (2d Cir. 2004). The court ultimately decided that “dismissal with prejudice was proper” because the prisoner “failed to exhaust his administrative remedies for several months during which those remedies were available and because such remedies [were then] no longer available.” Id. Although this case involves factual circumstances different from those present in Berry, the procedural realities of exhausting administrative remedies in the land-use context are effectively the same. At least where the time period within which an applicant must exhaust administrative remedies is limited, an applicant cannot go back in time to exhaust its administrative remedies once its time for doing so has expired.

¶55 Here, Landowners had thirty days following the Town’s land use decision to mount an administrative appeal. The district court ruled that this appellate clock started ticking in June 2021 and—as explained above—Landowners failed to preserve for our review the legal theory upon which they now attempt to challenge that ruling. Thus, for present purposes, we must assume that Landowners’ clock did indeed start ticking in June 2021. Because they did not file any appeal for more than a year, Landowners cannot now go back in time and remedy that situation.

¶56 Nevertheless, the district court dismissed the First Lawsuit “without prejudice” because the suit was in an “early stage of the litigation” at the time the dismissal was ordered. But a dismissal without prejudice is appropriate only when it is practically possible for the litigant to refile the suit. See In re IFC Credit Corp., 663 F.3d 315, 320 (7th Cir. 2011) (“[D]ismissal without prejudice allows a complete do-over if the plaintiff can refile his [or her] case without running afoul of the jurisdictional obstacle that wrecked his [or her] original claim.” (emphasis added)); see also Wallace v. Aldridge, No. 17-CV-349, 2019 WL 355297, at *2 (D. Utah Jan. 29, 2019) (“[I]f plaintiff tried to refile these claims following a

20230232-CA 24 2026 UT App 140 dismissal without prejudice, they would be barred by the statute of limitations. Thus, a dismissal without prejudice would operate as a dismissal with prejudice.”). Here, the practical reality is that Landowners no longer have the opportunity to cure their failure to exhaust. Under these specific circumstances, the court should have dismissed the First Lawsuit with prejudice.

¶57 Landowners resist this conclusion by arguing that the “district court acted within its discretion when it dismissed [the First Lawsuit] without prejudice” because, under rule 41(b) of the Utah Rules of Civil Procedure, “a district court’s determination that it lacks jurisdiction results in a dismissal without prejudice.” It is certainly true that, in many cases, jurisdictional infirmities can be remedied and the case can be refiled. See Natalie R. v. State, 2025 UT 5, ¶ 58, 567 P.3d 550 (“[O]nce the district court determined that it lacked subject-matter jurisdiction, it should have dismissed the complaint without prejudice, providing the . . . plaintiffs an opportunity to cure the jurisdictional deficiencies in a repleaded complaint.”); see also Salt Lake County v. State, 2020 UT 27, ¶ 27, 466 P.3d 158 (holding that “where the allegations in a complaint are insufficient to establish jurisdiction,” the court may either “deny the motion and direct the plaintiff to amend the pleading” or “dismiss without prejudice so that the plaintiff can later file an amended complaint” (cleaned up)). But in situations like this one, where a case is dismissed for jurisdictional infirmities that cannot be remedied, the dismissal should be with prejudice.

¶58 Under these circumstances, the district court exceeded its discretion by ordering that the dismissal be without prejudice. Thus, while we affirm the court’s decision to dismiss the First Lawsuit on jurisdictional grounds, we reverse that portion of the dismissal order that indicated that the dismissal was without

20230232-CA 25 2026 UT App 140 prejudice, and we remand the First Lawsuit to the district court for the limited purpose of entering a dismissal with prejudice. 5

II. The Second Lawsuit

¶59 Next, we address Landowners’ challenge to the district court’s order dismissing the Second Lawsuit. The court offered two reasons for its dismissal order. First, it concluded that it “lack[ed] subject matter jurisdiction because” Landowners had “failed to timely exhaust their administrative remedies.” In the court’s view, the First and Second Applications requested the same land use decision, and because Landowners had failed to timely appeal the First Application, their failure to exhaust administrative remedies regarding the First Application also doomed the Second Application. Second, the court concluded that Landowners’ “claims in the Second [Lawsuit were] barred under the doctrine of issue preclusion” because the court in the First Lawsuit had “considered the same issues and arguments” that Landowners were attempting to raise in the Second Lawsuit. And because, in the court’s view, the Second Lawsuit suffered from these two infirmities, the court also concluded that Landowners failed to state a claim.

¶60 Landowners take issue with both of the district court’s rationales. For the reasons that follow, we agree with Landowners on both points. First, we conclude that the district court erred when it determined that the applications were identical to one

5. We note that the dismissal of the First Lawsuit with prejudice only prevents Landowners from refiling the First Lawsuit. As we explain later, see infra Part II, Landowners will get the opportunity to proceed with the Second Lawsuit; the dismissal status of the First Lawsuit—whether with or without prejudice—does not, in and of itself, affect Landowners’ other lawsuits, especially given our determination that the Second Application was not identical to the First Application.

20230232-CA 26 2026 UT App 140 another, a determination that was crucial to its conclusion that it lacked subject-matter jurisdiction over the Second Lawsuit. And second, we explain that the principles of issue preclusion are inapplicable here. Thus, we reverse the dismissal of the Second Lawsuit and remand that case to the district court for further proceedings consistent with this opinion.

A. Subject-Matter Jurisdiction

¶61 Landowners argue that the court erred when it granted the Town’s motion to dismiss the Second Lawsuit for lack of subject- matter jurisdiction, a ruling that was premised on the court’s conclusions that “Landowners failed to timely exhaust their administrative remedies” in regard to the First Application and that the Second Application sought identical relief. Landowners challenge the district court’s rationale by making two arguments. First, they assert that their two applications were not identical. Second, and in the alternative, they assert that even if the two applications could be considered identical or duplicative, nothing in Utah law prevents them from filing a second identical application and seeking reconsideration. We need not address the merits of Landowners’ second contention because we agree with them on the first one: these two applications were not identical.

¶62 We start with the premise—not contested by the Town— that property owners are generally entitled to, and often do, file second or successive land use applications regarding a parcel of land. Certainly, MLUDMA contains no provision forbidding successive petitions, and it states—without any exclusion for later petitions—that applicants who submit “a complete land use application” are “entitled to substantive review of the application.” See Utah Code § 10-20-902(1)(a)(i). Indeed, the Town is unable to direct our attention to any statutory provision—in MLUDMA or anywhere else—that would support the notion that a subject-matter-jurisdiction problem (as opposed to, perhaps, some other type of problem, such as preclusion) arises when

20230232-CA 27 2026 UT App 140 successive land use applications are filed regarding the same parcel, even if those applications are identical.

¶63 Moreover, the Town’s own ordinances clearly allow successive applications regarding the same parcel of land. Utah municipalities are entitled to adopt their “own land use standards,” as long as those standards do not “conflict[] with” any provision of MLUDMA. See id. § 10-20-103(1). The Town has adopted municipal land use ordinances, including a section entitled “Nonconformance to Standards.” See Leeds, Utah, Land Use Ordinance § 26.4.2.4. It states as follows:

If the Town Council finds the proposed Site Analysis component of the site development plan fails to conform to the standards referenced in this Chapter, the Town Council shall direct the applicant to redesign the project with specific direction regarding the nonconforming elements of the project. . . . This process will be repeated until the proposed Site Analysis component of the site development plan conforms to applicable standards.

Id. This provision not only allows applicants to submit successive applications, but it sets no limit on the number of such applications, contemplating that the “process will be repeated until” the proposal “conforms to applicable standards.” See id.

¶64 Despite this, the Town contends that successive identical applications are not permissible because, if they were, applicants could simply make an end run around their failure to exhaust administrative remedies regarding a previous application. In support of this contention, the Town directs our attention to caselaw from other jurisdictions, where some courts have disallowed successive identical administrative petitions for various reasons. See, e.g., Toensing v. United States Dep’t of Justice,

20230232-CA 28 2026 UT App 140 890 F. Supp. 2d 121, 133 (D.D.C. 2012) (stating that allowing successive identical Freedom of Information Act (FOIA) requests “would clearly frustrate the FOIA administrative scheme generally” and “could be viewed as an end run around the FOIA’s . . . administrative exhaustion requirements”); Buck v. Zoning Board of Appeals, 456 N.Y.S.2d 130, 131–32 (App. Div. 1982) (refusing to allow a party to file a second identical zoning application); 83 Am. Jur. 2d Zoning and Planning § 857 (2026) (“The time within which proceedings to review a decision of a [land use authority] must be commenced is not extended by a series of applications for essentially identical relief.”). But these authorities—and the Town’s argument writ large—depend on the premise that the second or successive application is identical to the first one. That is, the Town appears to at least tacitly acknowledge that, in the land-use context, successive petitions regarding the same property are routinely allowed, as long as they aren’t identical.

¶65 Thus, the relevant threshold question here is whether the Second Application was materially identical to the First Application. If it wasn’t, then not even the Town contends, here on appeal, that a subject-matter-jurisdiction problem was presented by the filing of the Second Application. And because we agree with Landowners that the Second Application was not identical to the First Application, we need not reach the merits of the deeper legal question posited by Landowners, namely, whether under Utah law, including MLUDMA, a subject-matterjurisdiction problem is presented by the filing of successive identical land use applications.

¶66 After a review of the record, we conclude that the circumstances surrounding the Second Application were, in two important respects, materially different from those involved in the First Application. First, the Second Application contained a different cover page, included a different grading plan, and proposed a different road path. To be sure, the Second

20230232-CA 29 2026 UT App 140

Application involved the same parcel of property and sought approval for similar development as the First Application. But in the Second Application, Landowners had made changes in terms of methods and pathways, and in our view those changes cannot be fairly characterized as immaterial. “In ordinary parlance material[] means important or significant.” State v. Larsen, 865 P.2d 1355, 1362 (Utah 1993) (cleaned up). In our view, the new cover page and grading plan included in the Second Application represented significant changes that placed the Second Application on different footing than the first one.

¶67 Second, by the time they filed the Second Application, Landowners had obtained the Affidavit, which contained sworn testimony from a former member of the Council attesting that the Property had been “approved by the [Council] as a minor lot subdivision for the purpose of building a residence back in 1997” and that “the Town consented to a zone change that would accommodate the building of a residence.” This evidence bears directly on the question of whether the Hillside Ordinance applies to the Property, and it was responsive to the Town’s previous invitation to Landowners to provide further information to the Town on that point. And this evidence was powerful enough to convince the Planning Commission to conclude, by a 4-1 vote, that the Property had been subdivided prior to 1999.

¶68 Indeed, the Town’s own code contemplates successive petitions after denial of previous petitions, at least as long as some change in circumstances has occurred, see Leeds, Utah, Land Use Ordinance § 26.4.2.4, and in our view the Second Application fits comfortably within the scope of this ordinance. Landowners had attempted, on two fronts, to alter the landscape of their application: they had obtained new evidence supporting their contention that the Hillside Ordinance didn’t apply, and they had made changes to their development proposal that cannot fairly be characterized as immaterial.

20230232-CA 30 2026 UT App 140

¶69 The Town resists this conclusion on two grounds. First, it argues that, in the Second Application, Landowners sought “exactly what they asked for in the First Application” by including the original plans from the First Application as attachments. But as Landowners point out, those original plans were useful as a reference point to contextualize the differences in the two applications. And the fact that Landowners included a continuing (but now alternative) request regarding the original grading plan does not necessarily mean that the two applications were materially identical.

¶70 Second, the Town argues that because the “Hillside Ordinance does not include exceptions in instances where cuts are designed a certain way or where the plan results in a net fill rather than a net cut,” the difference in earthwork between the First and Second Applications “is a distinction without a difference under the Hillside Ordinance.” We again disagree, especially when this issue is considered in light of the Affidavit. The difference in cut and fill amounts in the Second Application resulted in a difference of tens of thousands of cubic yards of earth and in a net fill rather than a net cut. This is not an insignificant difference. And while it is true that one of the intentions of the Hillside Ordinance is to “reduce the adverse [e]ffects of grading and cut and fill operations,” see id. § 20.1, it is by no means mandatory to have no cut and fill operations in a proposal that may (or may not) implicate the Hillside Ordinance. Given the changes in their grading plan and given the new evidence in the form of the Affidavit, Landowners were asking the Town to take another look at whether, and how, the Hillside Ordinance might affect their application. These differences were material.

¶71 For these reasons, we disagree with the Town’s (and the district court’s) assertion that the Second Application was materially identical to the First Application. As we have explained, there were factual differences and changed circumstances that distinguished the Second Application from the

20230232-CA 31 2026 UT App 140

First Application. And all parties agree that if the two applications were materially different, there was no subject-matter-jurisdiction problem with the Second Lawsuit; there is no dispute that Landowners filed a timely administrative appeal from the Town’s decision to dismiss the Second Application and therefore exhausted their administrative remedies as concerns that separate application. Accordingly, the court erred in concluding that it lacked subject-matter jurisdiction over the Second Lawsuit. 6

B. Issue Preclusion

¶72 In addition to dismissing the Second Lawsuit for a perceived lack of subject-matter jurisdiction, the court offered an alternative basis for dismissal: that the issues Landowners presented for review in the Second Lawsuit were barred from further litigation by the doctrine of issue preclusion. “The doctrine of res judicata embraces two distinct branches: claim preclusion and issue preclusion. Claim preclusion corresponds to causes of action; issue preclusion corresponds to the facts and issues underlying causes of action.” 7 Gilmor v. Family Link, LLC, 2012 UT 38, ¶ 10 n.4, 284 P.3d 622 (cleaned up). “It is well settled that the doctrine of issue preclusion prevents the relitigation of

6. In this same vein, the Town also argues that the court did not err when it dismissed the Second Lawsuit because Landowners failed to state a claim. But the reason the Town contends that Landowners failed to state a claim is that, in its view, the Second Application was materially identical to the First Application, which had already been “substantively reviewed.” Because we disagree with the conclusion that the two applications were materially identical, we need not further address the Town’s contention that Landowners failed to state a claim in connection with the Second Lawsuit.

7. Issue preclusion has also been referred to as collateral estoppel. See Buckner v. Kennard, 2004 UT 78, ¶ 12, 99 P.3d 842.

20230232-CA 32 2026 UT App 140 issues in a subsequent action.” Collins v. Sandy City Board of Adjustment, 2002 UT 77, ¶ 12, 52 P.3d 1267 (cleaned up). In other words, “once a party has had his or her day in court and lost, he or she does not get a second chance to prevail on the same issues.” Buckner v. Kennard, 2004 UT 78, ¶ 12, 99 P.3d 842.

¶73 To invoke the doctrine of issue preclusion, a party must establish that “(1) the issue decided in the prior adjudication is identical to the one presented in the instant action; (2) the party against whom issue preclusion is asserted was a party, or in privity with a party, to the prior adjudication; (3) the issue in the first action was completely, fully, and fairly litigated; and (4) the first suit resulted in a final judgment on the merits.” Id. ¶ 13. “If any one of these requirements is not satisfied, there can be no preclusion.” Zufelt v. Haste, Inc., 2006 UT App 326, ¶ 9, 142 P.3d 594 (cleaned up).

¶74 Here, Landowners contend that the issues the court identified in the issue preclusion portion of its order are not the same issues that are at play in the Second Lawsuit. Specifically, they argue that the “Town failed to show that the issue[s] decided in the First [Lawsuit were] identical to the issues present in the Second [Lawsuit].” On this, we agree with Landowners.

¶75 “What is critical in determining identical issues is whether the issue that was actually litigated in the first suit was essential to resolution of that suit and is the same factual issue as that raised in a second suit.” Id. ¶ 10 (cleaned up). The six issues that the district court identified as common to both the First and Second Lawsuits were as follows:

(i) the [Council] “unilaterally changed” the First Application, (ii) the [Council] failed to “substantively review” the First Application, (iii) the [Council] never “fully rejected” the First Application until [the June 2022 Letter] nearly a year

20230232-CA 33 2026 UT App 140 later, (iv) the [Council] did not issue a “land use decision,” (v) [Landowners’] presentation in front of the Planning Commission [in June 2022] somehow restarted [Landowners’] time to appeal, and (vi) [Landowners] were not required to exhaust their administrative remedies because doing so would be futile.

¶76 But these are not the same issues that remain for adjudication in the Second Lawsuit, especially given our conclusions, see supra Part II.A, that the Second Application is not identical to the First Application and that, therefore, the district court erred in concluding that it lacked subject-matter jurisdiction over the Second Lawsuit. In light of the conclusions reached in the previous section, none of the six issues identified by the court are relevant to adjudication of the Second Lawsuit. Simply put, the issues that the court found “essential to [the] resolution of” the First Lawsuit are not “the same factual issue[s]” raised in the Second Lawsuit. See Zufelt, 2006 UT App 326, ¶ 10 (cleaned up). Thus, the court erred when it dismissed the Second Lawsuit on the basis of issue preclusion, because the issues the court identified are not the issues presented in the Second Lawsuit.

¶77 In addition, the issues surrounding the Affidavit are likewise not a proper subject for issue preclusion under the circumstances presented here, because no judicial or administrative body—not the district court and not the Council— has ever actually rendered a definitive merits-based decision on whether the Property was properly subdivided prior to 1999. For a claim of issue preclusion to succeed, all four elements must be established. See id. ¶ 9. So it follows that when an “issue in the first action was [not] completely, fully, and fairly litigated” and no actual decision on that issue has been rendered, then issue preclusion cannot apply. Id. ¶¶ 9, 13. The issue of the applicability of the Hillside Ordinance based on the Property’s subdivision

20230232-CA 34 2026 UT App 140 status was never fully litigated because neither the court nor the Council ever made a final decision on that issue.

¶78 First, neither district court—in either the First Lawsuit or the Second Lawsuit—ever made a determination on the applicability of the Hillside Ordinance to the Property because neither court reached the merits of the underlying issues. The first court dismissed the First Lawsuit for lack of subject-matter jurisdiction because Landowners had “failed to comply with the Town’s exhaustion requirements.” And the second court dismissed the Second Lawsuit for substantially similar procedural reasons, citing the “[d]uplicative” nature of the First and Second Applications. Neither court ever purported to make a decision on the issue of whether the Property was subdivided prior to 1999.

¶79 We certainly acknowledge that, at least in some cases, preclusive effect can be given to administrative decisions made by municipal land use tribunals. See, e.g., Career Service Review Board v. Utah Dep’t of Corr., 942 P.2d 933, 938 (Utah 1997) (“The principles of [issue preclusion] apply to enforce repose when an administrative agency has acted in a judicial capacity in an adversary proceeding to resolve a controversy over legal rights and to apply a remedy.” (cleaned up)); Voutsinas v. Schenone, 88 N.Y.S.3d 57, 60 (App. Div. 2018) (“The principles of res judicata and collateral estoppel apply to quasi-judicial determinations of administrative agencies, such as zoning boards, and preclude the relitigation of issues previously litigated on the merits.” (cleaned up)); see also 4 Dwight H. Merriam & Sara C. Bronin, Rathkopf’s The Law of Zoning and Planning § 68:2 (4th ed. 2025) (“The finality doctrines of res judicata (or claim preclusion) and collateral estoppel (or issue preclusion) are generally applied to administrative zoning proceedings and zoning litigation to determine the finality effect accorded (and the preclusive effect of) earlier decisional proceedings on matters subsequently presented for decision.”). But here, the Council never rendered a

20230232-CA 35 2026 UT App 140 final decision on the merits of the issue of whether the Property was properly subdivided prior to 1999. 8

¶80 When the matter first came up at a Council meeting in January 2020, the Council tabled the question so that it could obtain further information on the issue. At that next meeting, about one month later, the issue arose again, and by this time the Town had obtained the advice and opinion of an attorney, who offered his view that the Property had not been “either developed or subdivided” prior to 1999 and that the Hillside Ordinance therefore applied to the Property. Extensive debate around the issue took place at that meeting, but the Council made no decision on the matter. Indeed, the meeting ended with the Council offering Landowners the opportunity to provide additional information on the issue, including argument about why the Town’s attorney’s opinion was incorrect, and the Council informed Landowners that it would “look to review that argument at a future meeting.”

¶81 After that meeting, the Town referred the matter to the Ombudsman, who appeared to assume that the Town had already rendered a definitive decision on the matter; indeed, the Advisory Opinion stated that “the Town’s conclusion” not to exempt the Property from the Hillside Ordinance “satisfie[d] the substantial evidence standard for a land use decision” and was “appropriate and lawful.” But from our review of the record, the Council hadn’t yet rendered any “conclusion” on the topic; we assume, from context, that the Advisory Opinion was referring to the legal opinion offered by the Town’s retained attorney.

8. The Planning Commission did render such a decision, concluding by a 4-1 vote that the Property had indeed been properly subdivided prior to 1999. But for obvious reasons, the Town is not asking us to give preclusive effect to that decision.

20230232-CA 36 2026 UT App 140

¶82 After the issuance of the Advisory Opinion, Landowners’ application came before the Council once more, in the June 2021 Meeting. But at that meeting, there was no mention of the Advisory Opinion and no discussion—let alone a definitive vote—about whether the Property had been subdivided prior to 1999. Instead, the bulk of the meeting was devoted to discussion of engineering issues regarding measurement and assessment of the steepness of the slopes on the Property.

¶83 Under these circumstances, we cannot afford preclusive effect to any decision made by the Council regarding the subdivision-before-1999 issue because the Council never made any definitive decision on the topic. To be sure, the Town’s attorney offered an opinion on the subject. But courts do not give preclusive effect to attorney opinion letters; rather, they give preclusive effect to judicial determinations and, sometimes, to adversarial administrative adjudications.

¶84 Here, because the Council left the issue open after the 2020 meeting, requested the Advisory Opinion, and then never took a vote regarding the merits of the Advisory Opinion at the June 2021 Meeting, the issue was never fully litigated at the Council level and never actually decided there. Accordingly, the third element of the issue preclusion test is not met regarding this issue. See Buckner, 2004 UT 78, ¶ 13. Landowners will be entitled to continue to litigate this issue, on remand, in the Second Lawsuit.

¶85 For all of these reasons, the district court erred by dismissing the Second Lawsuit. In light of factual differences and changed circumstances, the Second Application was not identical to the First Application, and the court therefore erred when it concluded that it lacked subject-matter jurisdiction over the Second Lawsuit. In addition, issue preclusion does not prevent Landowners from litigating the issues now relevant to the Second Lawsuit, including the issue of whether the Property was properly subdivided prior to 1999. We therefore reverse the

20230232-CA 37 2026 UT App 140 court’s order dismissing the Second Lawsuit, and we remand that case back to the district court for further proceedings.

III. Attorney Fees

¶86 Finally, we address both sides’ contentions regarding the courts’ attorney fees orders. On cross-appeal, the Town challenges the courts’ decisions declining to award the Town attorney fees in the First and Third Lawsuits. And Landowners challenge the court’s award of attorney fees to the Town in the Second Lawsuit. In all three cases, the Town sought an award of attorney fees pursuant to the ombudsman advisory opinion statute, which states (in relevant part) as follows:

[I]f a dispute involving land use law results in the issuance of an advisory opinion described in this section, if the same issue that is the subject of the advisory opinion is subsequently litigated on the same facts and circumstances at issue in the advisory opinion, and if the relevant issue is resolved consistent with the advisory opinion, the substantially prevailing party on that cause of action may collect . . . reasonable attorney fees and court costs . . . .

Utah Code § 13-43-206(12) (2021). Applying this statute, we affirm the orders denying the Town’s requests for attorney fees in the First and Third Lawsuits. But we vacate the court’s award of fees in the Second Lawsuit because—for the reasons discussed above, in Part II—we do not yet know who the substantially prevailing party will be in that suit.

A. The First and Third Lawsuits

¶87 In its cross-appeal, the Town takes issue with the contention that the courts in the First and Third Lawsuits had discretion to decline to award fees. As the Town sees it, the

20230232-CA 38 2026 UT App 140 ombudsman advisory opinion statute requires an award of fees in these situations, and therefore the courts had no choice but to grant the Town’s requests for fees. We disagree with the Town’s interpretation of the relevant statute.

¶88 When considering a question of statutory interpretation, we must keep in mind that “our primary goal is to evince the true intent and purpose of the Legislature.” Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 14, 267 P.3d 863 (cleaned up). And the best evidence of that intent is the language the drafters used to express that intent. See Hertzske v. Snyder, 2017 UT 4, ¶ 10, 390 P.3d 307 (“The best indicator of legislative intent is the plain language of the statutes themselves.”). When the statutory language is unambiguous, we do “not look beyond the same to divine legislative intent,” because “we are guided by the rule that a statute should generally be construed according to its plain language.” State v. Malo, 2020 UT 42, ¶ 22, 469 P.3d 982 (cleaned up); see also Scott v. Scott, 2017 UT 66, ¶ 22, 423 P.3d 1275 (“When we can ascertain the intent of the legislature from the statutory terms alone, no other interpretive tools are needed, and our task of statutory construction is typically at an end.” (cleaned up)). However, we must not view the provision at issue in isolation; instead, the inquiry “requires that each part or section be construed in connection with every other part or section so as to produce a harmonious whole.” State v. Hatfield, 2020 UT 1, ¶ 16, 462 P.3d 330 (cleaned up).

¶89 In order for a party to be eligible for a fee award under the ombudsman advisory opinion statute, that party must be the “substantially prevailing party” and, in addition, three prerequisites must be met. See Utah Code § 13-43-206(12) (2021). First, “a dispute involving land use law” must “result[] in the issuance of an advisory opinion” by the Ombudsman. Id. Second, “the same issue that is the subject of the advisory opinion” must have been “subsequently litigated on the same facts and circumstances [that were] at issue in the advisory opinion.” Id.

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And third, “the relevant issue” must have been “resolved” in the subsequent litigation in a manner that was “consistent with the advisory opinion.” Id. If these prerequisites are met, then “the substantially prevailing party . . . may collect . . . reasonable attorney fees and court costs.” Id.

¶90 The courts in the First and Third Lawsuits interpreted this statute—chiefly its use of the word “may”—to mean that courts have discretion to award fees and that courts may opt not to award fees even if all the prerequisites are met. The Town takes a different view, asserting that if all the prerequisites are met, the court must award attorney fees to the substantially prevailing party. As the Town sees it, “the word ‘may’ refers to actions the ‘substantially prevailing party’ can take, not the district court.” In our view, the courts interpreted the statute correctly.

¶91 We take the Town’s point that our legislature could have been clearer about whether it intended to provide courts with discretion to award (or not award) fees under this statute; specifically, it could have specified that it was the court that “may” award fees. But it is usually unhelpful simply to say that the legislature could have been “more explicit.” See Craig v. Provo City, 2016 UT 40, ¶ 39, 389 P.3d 423. “In any matter of statutory construction of any consequence, it will almost always be true that the legislature could have more clearly repudiated one party’s preferred construction.” Id. (cleaned up). “But the converse is almost always true as well.” Id. (cleaned up). Here, for instance, if the legislature had intended for fee awards to be mandatory, it could have said so more plainly, such as by using the word “shall” (or the phrase “shall be entitled to”) instead of “may.” 9

9. Both parties note that, since the events in question took place, our legislature has amended the statute. The current version makes clear that, if prerequisites are met, “the court may award (continued…)

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¶92 After all, it is beyond question that the word “‘[m]ay’ means that an action is authorized or permissive.” Utah Code § 68-3-12(1)(g); see also Carrell v. State, 2023 UT App 93, ¶ 36, 536 P.3d 653 (“The plain, ordinary, and accepted meaning of the word may is permissive or discretionary, generally indicating that an individual is either permitted or has a possibility to do something.” (cleaned up)); Mota v. Mota, 2016 UT App 201, ¶ 6, 382 P.3d 1080 (noting that “a statute’s use of the word ‘may’ indicates a court’s discretionary power” and signals that the “statute is permissive”).

¶93 While we acknowledge that the statute is not entirely clear, we think the better reading is that our legislature intended to imbue district courts with discretion to award fees, or to not award fees, in appropriate cases where the prerequisites are met. The use of the word “may” indicates the possibility that fees might not be awarded, even if the prerequisites are met. And the legislature would of course have had good reason to afford district courts—who have a better understanding of the dynamics of each individual case than we do or than the legislature does— the discretion to take a case-by-case approach in assessing the appropriateness of a fee award.

¶94 Accordingly, the courts did not err here when they interpreted the ombudsman advisory opinion statute as affording district courts the discretion to award—or to not award—fees to

the substantially prevailing party . . . reasonable attorney fees and court costs.” See Utah Code § 13-43-206(12) (emphasis added). Of course, this subsequent statutory change does not materially help our analysis; instead, it just sparks the usual debate about whether the amendment was intended to confirm what the legislature meant all along or whether the amendment represented a sea change in legislative intent. And the parties—who duel about this issue largely in footnotes—offer no meaningful assistance in clarifying this point.

20230232-CA 41 2026 UT App 140 the substantially prevailing party if the statutory prerequisites are met. And the Town does not assert that—if the courts got the statute right—the courts abused their discretion in choosing, on the facts of the cases, not to award fees. Thus, we affirm the courts’ orders declining to award attorney fees to the Town in the First and Third Lawsuits.

B. The Second Lawsuit

¶95 In their appeal, Landowners challenge the court’s award of attorney fees to the Town in the Second Lawsuit, which award was made pursuant to the ombudsman advisory opinion statute and was premised on a determination that the Town was the substantially prevailing party in that case. Specifically, Landowners contend that “(1) there was no statutory basis for awarding fees,” “(2) the court abused its discretion by failing to reconsider its ruling when it was required to do so,” and “(3) the court erred and abused its discretion in ordering Landowners to pay . . . attorney fees without a legal basis.”

¶96 Given our determination, discussed above in Part II, to reverse the court’s order dismissing the Second Lawsuit and to remand that case to the district court for further proceedings, it is no longer certain that the Town will end up as the substantially prevailing party in the Second Lawsuit. The district court should reassess that question—and all questions inherent in the attorney fees inquiry—at the conclusion of proceedings in that case. In the meantime, we vacate the district court’s order of attorney fees to the Town in the Second Lawsuit. 10

10. The Town also requests attorney fees on appeal, asserting that because it received an award of fees in the Second Lawsuit, it should also receive an award of fees incurred on appeal. See Fadel v. Deseret First Credit Union, 2017 UT App 165, ¶ 38, 405 P.3d 807 (continued…)

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CONCLUSION

¶97 We affirm the district court’s decision to dismiss the First Lawsuit, because the legal theory Landowners raise on appeal in an effort to challenge that decision is unpreserved for our review. But we agree with the Town that the court’s dismissal of the First Lawsuit should have been with prejudice, rather than without prejudice, so we remand the First Lawsuit to the district court for the limited purpose of entering a dismissal with prejudice. And we also affirm the district courts’ orders, in the First and Third Lawsuits, declining to award attorney fees to the Town.

¶98 However, we reverse the district court’s order dismissing the Second Lawsuit. The court erred in concluding that it lacked subject-matter jurisdiction over that lawsuit, and it erred in concluding that Landowners were barred by the doctrine of issue preclusion from litigating any of the issues now relevant in the Second Lawsuit. And because we reverse the dismissal of the Second Lawsuit, we also vacate the court’s attorney fees order in that same lawsuit; because that lawsuit is reinstated, all questions related to entitlement to attorney fees, including which party substantially prevailed, should be postponed until after proceedings in that lawsuit have concluded. We remand the Second Lawsuit to the district court for further proceedings consistent with this opinion.

(“Generally, when a party who received attorney fees below prevails on appeal, the party is also entitled to fees reasonably incurred on appeal.” (cleaned up)). But as explained, the Town has not prevailed in the portion of this appeal concerning the Second Lawsuit—the case in which it received an attorney fees award from the district court. Thus, the Town is not entitled to an award of attorney fees incurred on appeal, and we deny its request on that basis.

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