Fuller v. Springville City

2015 UT App 177

THE UTAH COURT OF APPEALS

DAVID FULLER AND RUTH M. FULLER,
Plaintiffs and Appellants,
v.
SPRINGVILLE CITY,
Defendant and Appellee.

Memorandum Decision
No. 20140433-CA
Filed July 16, 2015

Fourth District Court, Provo Department
The Honorable Claudia Laycock
No. 110400724

David Fuller and Ruth M. Fuller, Appellants Pro Se
Jody K. Burnett and Robert C. Keller, Attorneys
for Appellee

JUDGE MICHELE M. CHRISTIANSEN authored this Memorandum
Decision, in which JUDGES GREGORY K. ORME and
STEPHEN L. ROTH concurred.

CHRISTIANSEN, Judge:

¶1 David and Ruth M. Fuller appeal from the district court’s
orders granting summary judgment in favor of Springville City
and dismissing the Fullers’ claims. The Fullers sought review in
the district court of the Springville City Board of Adjustment’s
decision denying their request for approval of a nonconforming
use. The Fullers argue that the Board of Adjustment’s
application of Springville City’s zoning ordinances pertaining to
single-family and multifamily-residential uses resulted in an
unconstitutional taking of their property. For the reasons stated
below, we affirm the district court’s dismissal of the Fuller’s
claims.
 Fuller v. Springville City

¶2 The Fullers’ property is situated in an area of Springville
City zoned solely for single-family use. The Fullers maintain a
basement apartment in their residence and utilize their home as
a multifamily dwelling. The Fullers claim that they have
maintained this multifamily dwelling for many years. When
Springville City learned of the basement apartment, however,
the city notified the Fullers that such use violated the zoning
laws and needed to stop.

¶3 The Fullers then applied for a certificate of
nonconformity, claiming that their basement apartment qualified
as a preexisting nonconforming use. Springville City’s
community-development director (the Director) denied their
application and concluded that the Fullers had failed to prove
that their basement apartment ‚could have [ever] been legal
under the zoning ordinances in place since the house was
constructed‛ and that the Fullers’ use therefore had not been
‚legally established‛ as required to demonstrate a
nonconforming use under both state statute and Springville City
ordinance. The Fullers appealed that decision to the Springville
City Board of Adjustment (the Board), which upheld the denial
of the Fullers’ application for a certificate of nonconformity.
Thereafter, the Fullers filed a complaint in the Fourth District
Court appealing the Board’s decision.

¶4 In their complaint, the Fullers asserted a number of
claims, alleging ‚tortuous bad faith failure to investigate and
resolve nonconforming use certificate which may arise out of
implementation of previous settlement agreement,‛ ‚bad faith
denial of request for non-conformity,‛ ‚abuse of process,‛ and
‚breach of expressed agreement to good faith negotiation.‛ The
Fullers sought a declaratory judgment that the Board’s ‚decision
denying request for non-conformity is arbitrary, capricious, and

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 Fuller v. Springville City

against the substantial weight of the evidence‛ and that
Springville City’s zoning ordinance was ‚null and void.‛1

¶5 Springville City filed a motion for partial summary
judgment ‚seeking dismissal of all of the Fullers’ claims or
theories other than a claim which might appropriately constitute
a Petition for Review of the *Board’s] decision.‛ At the hearing
on the motion, the court orally granted Springville City’s motion
except as to that portion of the Fullers’ complaint that the court
determined could be construed as a petition for review of the
Board’s decision. The district court requested additional briefing
from the parties on whether the Fullers could bring a
constitutional challenge to Springville City’s historical zoning
ordinances based on the Utah Supreme Court’s holding in
Gillmor v. Summit County, 2010 UT 69, 246 P.3d 102.

¶6 Before the district court entered a final ruling on
Springville City’s motion for summary judgment, the parties
stipulated to a stay of the district court case and a remand to the
city for ‚further proceedings and consideration of evidence by
[the Director]‛ regarding ‚whether and to what extent *the
Fullers] can prove the nonconforming use of their property as a
two-family dwelling was ever lawfully and legally established in
the first instance.‛ After additional consideration, the Director
again denied the Fullers’ application. The Director found that the
lot on which the Fullers’ home was constructed was not of
sufficient size to have ever allowed multifamily use in the
zoning district where it was located. Thus, the Fullers could not
demonstrate that use of their property as a multifamily dwelling
had ever been legally established. The Fullers requested

1. To the extent the Fullers raised other allegations and requests
for relief in their complaint, they are not pertinent to this appeal
and we do not address them.

20140433-CA 3 2015 UT App 177
 Fuller v. Springville City

reconsideration by the Director and requested additional time to
conduct further research and present additional arguments. The
Director denied the Fullers’ requests and affirmed his previous
decision.

¶7 The Fullers again appealed to the Board. The Board
upheld the Director’s decision based on ‚a lack of evidence
presented to [the] Board that when the use was originally
established that it conformed with the applicable zoning
ordinance either under the Utah County zoning ordinance or
Springville City zoning ordinance and that, for that reason
there’s been a lack of evidence showing that it was legal in the
first instance.‛ The Fullers then amended their original
complaint in the district court case, seeking judicial review of the
Board’s final decision.

¶8 Subsequently, the district court held another hearing on
Springville City’s motion for summary judgment. After the
hearing, the district court entered a written order memorializing
its grant of summary judgment to Springville City on all of the
Fullers’ claims except their claim for review of the Board’s
decision. The district court also ordered that ‚*s+olely in the
context and for the purposes of the Fullers’ remaining Petition
for Review claim,‛ the Fullers could challenge the facial validity
of Springville City’s zoning ordinances. The district court
allowed the Fullers to file an amended complaint to ‚describ[e]
the basis for their claim that the *Board’s+ decision on their
nonconforming use application was arbitrary, capricious or
illegal‛ and to clarify the Fullers’ constitutional challenges to
Springville City’s ordinances.

¶9 Springville City then filed a motion for summary
judgment on the Fullers’ claim regarding their petition for
review of the Board’s decision. The district court granted
summary judgment in favor of Springville City and affirmed the

20140433-CA 4 2015 UT App 177
 Fuller v. Springville City

Board’s decision denying the Fullers’ application for a certificate
of nonconformity.

¶10 Several months later, Springville City filed a final motion
for summary judgment seeking to dismiss the Fullers’ remaining
constitutional claims. The district court granted the motion and
dismissed ‚the Fullers’ claims against the City . . . in their
entirety, with prejudice and on the merits.‛ The Fullers appeal.

¶11 This case involves a challenge to a land use authority’s
decision to deny an application for a nonconforming use. We
review the district court’s judgment ‚as if we were reviewing the
land use authority’s decision directly, and we afford no
deference to the district court’s decision.‛ Pen & Ink, LLC v.
Alpine City, 2010 UT App 203, ¶ 16, 238 P.3d 63 (citation and
internal quotation marks omitted).

¶12 The Fullers first argue that application of the zoning
ordinances to prohibit their keeping a basement apartment
constitutes an unconstitutional taking of their property.
However, the Fullers have failed to demonstrate that their
unconstitutional takings claim was preserved below, as they are
required to do by our rules of appellate procedure. An
appellant’s brief must include ‚citation to the record showing
that the issue was preserved in the [district] court; or . . . a
statement of grounds for seeking review of an issue not
preserved in the [district] court.‛ Utah R. App. P. 24(a)(5)(A), (B).
We generally will not reach an issue if the appellant fails to
establish that it was preserved. See Florez v. Schindler Elevator
Corp., 2010 UT App 254, ¶ 32, 240 P.3d 107. The Fullers cite to
instances in the record where they made vague assertions about
the ordinances’ constitutionality, but none of these record
citations demonstrate that a takings argument was ever
presented to the Board or the district court. Because the Fullers
have failed to show that this argument was preserved below, we

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 Fuller v. Springville City

decline to address it. See Holladay v. Storey, 2013 UT App 158,
¶ 34, 307 P.3d 584.

¶13 Next, the Fullers argue that the district court erred by
applying the 1997 version of the Utah Code governing boards of
adjustment rather than ‚the laws of municipal annexation as
they existed in 1975.‛ According to the Fullers, the issue can be
characterized in this way: ‚[C]an the Court properly use
Municipal Law as it exists today to determine the legality of the
use? Or should the Court have used State Law as it existed at the
time of annexation [by Springville City] to determine the legality
of the enforcement?‛ Though the Fullers claim to challenge the
district court’s decision, we must review the land use authority’s
decision directly. See Pen & Ink, 2010 UT App 203, ¶ 16. Thus, we
understand the Fullers’ argument to mean that the Board should
have applied ‚the 1953 version‛ of the Utah Code governing
boards of adjustment—the version of the statute in effect at the
time Springville City annexed the Fullers’ property2—because
the Board interpreted zoning ordinances in place ‚since before
1960‛ in determining the legality of the property’s use as a
component of the nonconforming-use determination.

¶14 This argument is also unpreserved because the Fullers did
not raise to the Board the issue of which version of the law
applies to their claims. ‚Utah law requires parties to preserve
arguments for appellate review by raising them first in the
forum below—be it a trial court or an administrative tribunal.‛

2. The Fullers repeatedly reference ‚the 1953 version‛ of section
10-9-6 of the Utah Code. That statute was not amended between
1953 and Springville City’s annexation of the area containing the
Fullers’ property in 1975. We therefore understand all of the
Fullers’ references to ‚the 1953 version‛ of the law to mean the
same version in effect at the time of the annexation in 1975. See
Utah Code Ann. § 10-9-6 (Allen Smith Co. 1973).

20140433-CA 6 2015 UT App 177
 Fuller v. Springville City

Columbia HCA v. Labor Comm’n, 2011 UT App 210, ¶ 6, 258 P.3d
640. ‚‘*I+ssues not raised before administrative agencies are *not
preserved and are+ not subject to judicial review.’‛ Carlsen v.
Board of Adjustment of Smithfield, 2012 UT App 260, ¶ 9, 287 P.3d
440 (alterations in original) (quoting Frito-Lay v. Labor Comm’n,
2009 UT 71, ¶ 32, 222 P.3d 55); see also Patterson v. Utah County
Bd. of Adjustment, 893 P.2d 602, 603 (Utah Ct. App. 1995)
(explaining that when ‚the district court’s review of the
*administrative agency’s+ decision was limited to a review of the
*agency’s+ record,‛ ‚we review *the administrative agency’s+
decision as if the appeal had come directly from the agency‛).
Though the Fullers presented this argument to the district court,
the Fullers have failed to demonstrate that they originally
presented this argument to the Board. It is therefore
unpreserved, and we decline to address it. See Carlsen, 2012 UT
App 260, ¶ 9.

¶15 Next, the Fullers appear to challenge the merits of the
Board’s denial of their application for a nonconforming use. The
Fullers also argue, based upon their reading of the 1953 version
of the Utah statute outlining the creation of boards of adjustment
and their designated powers, that the Board deprived the Fullers
of the opportunity to present evidence supporting their claim
that ‚the use *of their nonconforming basement apartment+
promoted the public welfare.‛ The Fullers state, ‚In 1953, the
zoning authority [could] only deprive the owner of property of
its use to which it was lawfully devoted prior to the enactment of
the ordinance if the parties have had the opportunity to present
evidence as to the welfare of the public.‛ (Emphasis added.)

¶16 Both in 2011 and 2013, the Board denied the Fullers’
application for a nonconforming use because the Fullers failed to
prove that their multifamily residence was ever legally
established. The Board affirmed the Director’s findings that the
lot on which the Fullers’ home was constructed was not of
sufficient size to have ever legally permitted multifamily use and

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 Fuller v. Springville City

was not located in a zoning district that allowed multifamily
use.3

¶17 Utah Code section 10-9a-801 provides the judicial
standard of review of a land use authority’s decision: ‚The
courts shall: (i) presume that a decision, ordinance, or regulation
made under the authority of this chapter is valid; and (ii)
determine only whether or not the decision, ordinance, or
regulation is arbitrary, capricious, or illegal.‛ Utah Code Ann.
§ 10-9a-801(3)(a) (LexisNexis 2007). Thus, ‚*a+ final decision of a
land use authority or an appeal authority is valid if the decision
is supported by substantial evidence in the record and is not

3. Despite the Fullers’ arguments that the burden should fall on
Springville City to prove illegality of the use and the existence of
ordinances restricting the use, Utah’s statute governing
nonconforming use explicitly states, ‚Unless the municipality
establishes, by ordinance, a uniform presumption of legal
existence for nonconforming uses, the property owner shall have
the burden of establishing the legal existence of a noncomplying
structure or nonconforming use.‛ Utah Code Ann.
§ 10-9a-511(4)(a) (LexisNexis Supp. 2010). Springville City code
section 11-3-207 also places the burden on the land owner:
If a determination of the nonconforming status of a
property is desired, the owner . . . shall submit a
completed application for a Certificate of
Nonconformity with the Community Development
Department. In all cases, the property owner shall
have the burden of proving by a preponderance of
evidence that a building [or] . . . use . . . which does
not conform to the Provisions of this Title,
complied with the applicable ordinance
requirements in effect at the time the current
circumstances were originally created.

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 Fuller v. Springville City

arbitrary, capricious, or illegal.‛ Id. § 10-9a-801(3)(c); see also
Xanthos v. Board of Adjustment of Salt Lake City, 685 P.2d 1032,
1034–35 (Utah 1984) (reviewing a board of adjustment decision
as an administrative act and employing substantial-evidence
standard). Substantial evidence is ‚that quantum and quality of
relevant evidence that is adequate to convince a reasonable mind
to support a conclusion.‛ Bradley v. Payson City Corp., 2003 UT
16, ¶ 15, 70 P.3d 47 (citation and internal quotation marks
omitted).

¶18 Here, the Fullers have failed to show that the Board’s
decision was arbitrary, capricious, or illegal. The Board denied
the Fullers’ application for a nonconforming use because the
Fullers failed to prove that their multifamily residence was ever
legally established. On appeal, the Fullers point to no evidence
in the record to demonstrate that their use of their residence as a
multifamily apartment was ever legally established and, thus,
that the Board’s decision was arbitrary, capricious, or
unsupported by substantial evidence. Even if we were to assume
that the 1953 statute the Fullers rely on was applicable to the
Board’s determination here, the Fullers have failed to
demonstrate any error in the Board’s finding that their use of
their property as a multifamily apartment was never ‚lawfully
devoted.‛ See Utah Code Ann. § 10-9-6 (Allen Smith Co. 1973).
We therefore need not decide whether the Fullers were deprived
of the ‚opportunity to present evidence as to the welfare of the
public,‛ because the Board’s determination that their property
was never ‚lawfully devoted‛ to a nonconforming use is fatal to
the Fullers’ claim. See id.

¶19 All of the other issues raised by the Fullers are
inadequately briefed. ‚It is well established that Utah appellate
courts will not consider claims that are inadequately briefed.‛
State v. Garner, 2002 UT App 234, ¶ 8, 52 P.3d 467. ‚An
adequately briefed argument must provide meaningful legal
analysis.‛ West Jordan City v. Goodman, 2006 UT 27, ¶ 29, 135 P.3d

20140433-CA 9 2015 UT App 177
 Fuller v. Springville City

874 (citation and internal quotation marks omitted). ‚A brief
must go beyond providing conclusory statements and fully
identify, analyze, and cite its legal arguments.‛ Id. (citation and
internal quotation marks omitted). Rule 24 of the Utah Rules of
Appellate Procedure requires that a brief include ‚citation*s+ to
the record,‛ Utah R. App. P. 24(a)(5)(A), and an argument that
‚contain[s] the contentions and reasons of the appellant
. . . with citations to the authorities, statutes, and parts of the
record relied on,‛ id. R. 24(a)(9). ‚Rule 24(a)(9) requires not just
bald citation to authority but development of that authority and
reasoned analysis based on that authority.‛ State v. Thomas, 961
P.2d 299, 305 (Utah 1998). If an appellant does not clearly
identify and analyze the issues, we will not address them. We
address only those issues that are properly identified, clearly
preserved, and adequately supported.4

4. For example, the Fullers state in their brief,
[W]ith respect to the basement apartment,
enforcement of the annexation and subsequent
zoning ordinances would be invalid and violative
of the equal protection and due processes clauses
of both the state and federal constitutions since it
placed upon the property owners the unreasonable
burden of furnishing detailed records which had
been lost or destroyed by the County and/or the
City.
The Fullers fail to cite any authority or provide any legal
analysis to support their equal protection and due process
claims. ‚There is no reasoned analysis or factual development
supporting [their] legal claim[s,] . . . thus dump[ing] the burden
of argument and research on this court.‛ See Spencer v. Pleasant
View City, 2003 UT App 379, ¶ 21, 80 P.3d 546 (third alteration in
original) (citation and internal quotation marks omitted).

20140433-CA 10 2015 UT App 177
 Fuller v. Springville City

¶20 We acknowledge that the Fullers have pursued their
appeal without counsel and are entitled to ‚every consideration
that may reasonably be indulged.‛ Nelson v. Jacobsen, 669 P.2d
1207, 1213 (Utah 1983) (citation and internal quotation marks
omitted). However, as a general rule, ‚[parties] who [represent
themselves] will be held to the same standard of knowledge and
practice as any qualified member of the bar.‛ Allen v. Friel, 2008
UT 56, ¶ 11, 194 P.3d 903 (citation and internal quotation marks
omitted). Consequently, ‚[r]easonable considerations do not
include . . . attempt[ing] to redress the ongoing consequences of
the party’s decision to function in a capacity for which he is not
trained.‛ Id. Here, the Fullers’ brief simply provides too little
information for this court to analyze any other issues they
attempt to present for review.

¶21 Based on the record before us, we conclude that the
Fullers have not demonstrated that the Board’s decision was
arbitrary, capricious, or illegal. Accordingly, we affirm the
district court’s grant of summary judgment and dismissal of the
Fullers’ claims.

20140433-CA 11 2015 UT App 177