2018 UT App 191
THE UTAH COURT OF APPEALS
WASATCH COUNTY,
Petitioner,
v.
UTILITY FACILITY REVIEW BOARD
AND ROCKY MOUNTAIN POWER,
Respondents.
Opinion
No. 20160523-CA
Filed October 4, 2018
Original Proceeding in this Court
Scott H. Sweat and Tyler J. Berg, Attorneys
for Petitioner
Sean D. Reyes and Brent A. Burnett, Attorneys
for Respondent Utility Facility Review Board
D. Matthew Moscon, R. Jeff Richards, Heidi K.
Gordon, Attorneys for Respondent Rocky
Mountain Power
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES GREGORY K. ORME and RYAN M. HARRIS concurred.
MORTENSEN, Judge:
¶1 Rocky Mountain Power (Rocky Mountain) sought a
conditional use permit from Wasatch County in order to erect
transmission towers and lines, but Wasatch County denied the
permit. 1 The Utility Facility Review Board (the Board) thereafter
1. We issued an opinion in this case on January 5, 2018. See
Wasatch County v. Utility Facility Review Board, 2018 UT App 1,
414 P.3d 958. After a petition for rehearing was filed, we
(continued…)
Wasatch County v. Utility Facility Review Board
ordered Wasatch County to issue the permit. Wasatch County
sought a stay from the Board, which was denied. Wasatch
County then issued the conditional use permit and the power
transmission towers were constructed. Wasatch County did not
seek a stay from this court, nor did it delay issuance of the
permit or otherwise seek to stop the construction. Under the
circumstances of this case, we conclude that this proceeding for
judicial review has been rendered moot and, therefore, we
dismiss it.
BACKGROUND
¶2 Rocky Mountain obtained an easement over property (the
Property) owned by Promontory Investments LLC
(Promontory). The Property sits in both Summit and Wasatch
counties. Prior to the events giving rise to this case, Rocky
Mountain’s transmission line ran through a portion of the
Property located entirely within Summit County.
¶3 Rocky Mountain supplies power to one of the
fastest-growing regions of Utah, of which Summit and Wasatch
counties are part. Based on projected growth of the region,
Rocky Mountain has undertaken an ongoing project to increase
transmission capacity and create alternative transmission
pathways (the Project). Part of the Project requires building a
sixty-seven-mile transmission line. Only 0.26 miles of the
proposed line would sit in Wasatch County, on Promontory’s
land.
(…continued)
reconsidered that opinion and did not release it for publication.
Our previous opinion is therefore withdrawn, and we issue this
opinion in its place.
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Wasatch County v. Utility Facility Review Board
¶4 The changed location—from the previous transmission
line location in Summit County to the new location in Wasatch
County—resulted from a request by Promontory after Rocky
Mountain approached it about upgrading the current
transmission line to a higher capacity one. Promontory asked
Rocky Mountain “to consider alternative siting locations on” the
Property. It is Rocky Mountain’s practice to accommodate such a
request from landowners, provided the landowner pays the cost
of relocation and the new location is acceptable to Rocky
Mountain. Accordingly, Rocky Mountain and Promontory
considered five alternative locations for the transmission line.
Promontory agreed to grant a new easement and pay additional
costs associated with constructing the new line in Promontory’s
preferred location along the south and east perimeters of the
Property—including the 0.26 miles of Wasatch County land. The
agreement between Promontory and Rocky Mountain included a
provision stating that if Rocky Mountain were unable to obtain
necessary permits, it could terminate the agreement and leave
the transmission line in its then-current location.
¶5 In its quest to obtain authorization for the construction of
the transmission line segment located in Wasatch County (the
Segment), Rocky Mountain was in frequent contact with
Wasatch County officials, planning staff, and nearby property
owners. Wasatch County consistently expressed concern about
the Segment’s compliance with existing ordinances aimed at
limiting structures that protrude above the visual ridgeline. In its
application for a conditional use permit, 2 Rocky Mountain
“included four options for the proposed alignment of the
transmission line in Wasatch County.” The Wasatch County
2. Rocky Mountain submitted multiple applications for
conditional use permits, which were withdrawn or continued for
a variety of reasons. We are concerned only with the final of
these applications, filed in September 2015.
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Planning Commission (the Planning Commission) denied the
permit, concluding that none of the four options were
acceptable, as “there was no way to mitigate the impacts of [the
Segment] on neighboring properties.”
¶6 Rocky Mountain appealed the denial of the permit to the
Wasatch County Board of Adjustment (the Board of
Adjustment), which agreed with the Planning Commission. The
Board of Adjustment concluded that the proposed transmission
upgrade violated Wasatch County’s ridgeline ordinance and
likewise denied the permit.
¶7 Rocky Mountain then appealed to the Board, which
determined that the Segment was “needed to provide safe,
reliable, adequate, and efficient service” to Rocky Mountain
customers and ordered Wasatch County to issue the permit
within sixty days.
¶8 Wasatch County asked the Board for a stay of its order.
After the Board denied the request, Wasatch County issued the
conditional use permit to Rocky Mountain. 3 Wasatch County
then sought judicial review of the Board’s order in this court, but
did not ask this court for a stay of that order pending the
outcome of judicial review. 4 After briefing and oral argument
3. The conditional use permit contained conditions requiring
that: (1) tangent poles must be wood, if feasible; (2) poles were to
be designed to be as low as possible while maintaining industry-
standard spans and clearances; (3) “rust colored (cor-ten) metal”
poles were to be used at corner locations to avoid the use of guy
wires; and (4) conductors were required to be “non-specular.” In
the process of installing the transmission lines, Rocky Mountain
complied with these conditions.
4. Rule 17 of the Utah Rules of Appellate Procedure states in
pertinent part, “Application for a stay of a decision or order of
(continued…)
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before this court, we issued a decision and the Board filed a
petition for rehearing. In the briefing associated with the petition
for rehearing, the parties informed this court—for the first
time—that while the proceeding for judicial review had been
pending, the conditional use permit had been issued, the new
transmission lines had been constructed on the Segment, and the
lines were now in use. This court then ordered supplemental
briefing.
¶9 The supplemental briefing makes clear that the remedy
Wasatch County seeks is a determination that the conditional
use permit be rescinded and that the transmission towers be
dismantled and moved.
ANALYSIS
¶10 In our view, Wasatch County’s requested remedy is no
longer available, and therefore the dispute has been rendered
moot.
I. Mootness
¶11 “A case may be mooted on appeal if the relief requested is
rendered impossible or of no legal effect.” Transportation All.
Bank v. International Confections Co., LLC, 2017 UT 55, ¶ 15, 423
P.3d 1171 (cleaned up). In Transportation Alliance, our supreme
(…continued)
an agency pending direct review in the appellate court shall
ordinarily be made in the first instance to the agency if the
agency is authorized by law to grant a stay. If a motion for such
relief is made to the appellate court, the motion shall show that
application to the agency for the relief sought is not practicable,
or that application has been made to the agency and denied,
with the reasons given by it for denial.”
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court held that an appeal was moot because a debtor failed to
seek a stay of an order approving a receivership sale. Id. ¶¶ 16–
17. The bank filed a complaint alleging breach of a loan
agreement and sought appointment of a receiver. Id. ¶ 2. Several
creditors of one of the defendants, International Confections,
intervened. Id. ¶ 3. The district court appointed a receiver, with
power to sell the assets of International Confections. Id. ¶ 4.
¶12 The bank settled its claims against International
Confections, and the district court dismissed the claims between
the bank and International Confections, but ordered that the
receiver stay in place. Id. ¶¶ 5–6. The receiver then accepted an
offer to buy International Confections’ assets. Id. ¶ 7. The district
court held an expedited hearing and approved the order of sale.
Id. ¶ 8. The buyer paid the agreed-upon price and began using
the assets. Id. ¶ 9. International Confections then filed a motion
under rule 60 of the Utah Rules of Civil Procedure to
“reactivate” the case and allow it to file an objection to the order
approving the sale. Id. ¶ 11; see Utah R. Civ. P. 60(b). The district
court denied the motion and International Confections appealed.
Id. ¶ 11.
¶13 The Utah Supreme Court dismissed the appeal as moot
because International Confections did not attempt to stay the
operation of the order. Id. ¶¶ 17, 23. Because the stay was not
sought, the court held that International Confections had
allowed the buyer to acquire the assets and that action (or
inaction) precluded the appellate court from granting the relief
sought. Id. ¶ 17; see also Kellch v. Westland Minerals Corp., 484 P.2d
726, 726 (Utah 1971) (dismissing an appeal as moot where, after
stock was sold during the pendency of the appeal, “[n]o steps
were taken by the defendants to stay the operation of the
judgment, nor did they supply a supersedeas bond”).
¶14 Similarly, in Richards v. Baum, 914 P.2d 719 (Utah 1996),
our supreme court found the failure to obtain a stay material to
the question of mootness. Id. at 722. In Richards, would-be real
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estate purchasers sued to specifically enforce a real estate
purchase contract, but the district court ruled against them. Id. at
720. The purchasers did not obtain a stay and the sellers sold the
property to someone else. Id. The sellers then moved to dismiss
an appeal by the would-be purchasers as moot. Id. With no stay
sought, the Utah Supreme Court ruled that the case was moot
because the desired relief could no longer be granted. Id. at 722.
Although recognizing theoretically that a district court can
convert a quiet title action into one for damages, the court
nevertheless adopted the majority position taken throughout the
country that such a conversion in remedy cannot occur on
appeal. 5 Id. at 721.
¶15 The court in Richards cited several other courts in support
of its holding, some of which parallel our case. For example, in
Masonry Arts, Inc. v. Mobile County Commission, 628 So. 2d 334
(Ala. 1993), and Westinghouse Electric Corp. v. Grand River Dam
Authority, 720 P.2d 713 (Okla. 1986), public contracts were
awarded and the party that did not receive the contract sued.
When a stay on appeal was not sought, each court deemed the
appeal to be moot. See Masonry Arts, 628 So. 2d at 335;
Westinghouse Elec., 720 P.2d at 716.
¶16 Another case cited in Richards is Wagner v. Boggess Coal
& Supply Co., 94 N.E.2d 64 (Ohio Ct. App. 1950), which involved
a court-ordered dissolution of a corporation. Id. at 66. No stay
was sought, and the appeal was found to be moot. Id. Again,
5. In Richards v. Baum, 914 P.2d 719 (Utah 1996), our supreme
court noted that “‘if appellant[s] were seeking on this appeal to
prevent the foreclosure sale, and because of their failure to
obtain a stay of execution, the sale were legally carried out
during the pendency of the appeal and the time for redemption
had run, the appeal would be moot.’” Id. at 722 (quoting Franklin
Financial v. New Empire Development Co., 659 P.2d 1040, 1043
(Utah 1983)).
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perhaps theoretically the dissolution could have been undone,
but the court nonetheless determined the appeal was moot
where the appealing party did not use available procedural tools
to preserve the status quo. 6 Id.
¶17 Furthermore, our research has identified additional case
law from other jurisdictions supporting a determination that the
dispute between Wasatch County and the Board is moot. In
Nextel West Corp. v. Franklin County Board of Zoning Appeals, No.
03AP-625, 2004 WL 1244339 (Ohio Ct. App. June 8, 2004), the
appellate court dismissed an appeal as moot where a
telecommunication facility was built without a stay being
sought. Id. at *3–4. The Ohio court agreed with other courts that
“where an appeal involves the construction of a building or
buildings and the appellant fails to obtain a stay of execution of
the [district] court’s ruling and construction commences, the
appeal is rendered moot.” Id. at *3 (cleaned up); see also J.R.
Francis Constr. Co. v. Pima County, 403 P.2d 934, 935 (Ariz. Ct.
App. 1965) (dismissing an appeal as moot where a contractor
sued after the county awarded a contract to another contractor
because the work was completed by the time the appellate court
decided the case and no stay was obtained); In re Save the Pine
Bush, Inc. v. Cuomo, 606 N.Y.S.2d 818, 860 (App. Div. 1994)
6. We recognize that Wasatch County sought a stay from the
Board. Courts, however, require parties to avail themselves of all
opportunities to preserve the status quo. See Town of Libertyville
v. Moran, 535 N.E.2d 82, 86 (Ill. App. Ct. 1989) (dismissing where
the party appealed a jury award for a condemnation action but
failed to protect its interest by moving for a stay); Montana Power
Co. v. Charter, 568 P.2d 118, 119 (Mont. 1976) (where transmission
towers and lines were completed, an appeal was determined to
be moot where the court found “nothing in the record to indicate
any further effort by the defendants to preserve the status quo
pending disposition of this appeal”).
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(dismissing an appeal as moot where petitioners failed to seek a
stay regarding a permit to operate a landfill).
¶18 Similarly, in Smola v. Legeza, No.2004-A0038, 2005 WL
3610480 (Ohio Ct. App. Dec. 29, 2005), the appellate court was
faced with a suit where a neighbor appealed a determination by
the board of zoning appeals to issue a zoning permit to a
landowner for construction of a new structure. Id. at *1. The
appellate court affirmed the district court’s dismissal because, at
the time of appeal, the structure had already been substantially
constructed. Id. at *7. The appellate court stated that “when an
appeal involves the construction of a building and the appellant
fails to obtain a stay of execution of the [district] court’s ruling,
and construction commences, the appeal is rendered moot.” Id.
¶19 Accordingly, abundant case law supports the proposition
that once construction (of, for instance, buildings or power lines)
has commenced, an appellant must avail itself of all avenues of
preserving the pre-construction status quo or risk the
construction rendering the appeal moot. Here, Rocky Mountain
sought a conditional use permit so that it could construct the
new transmission lines and towers. The Board issued the permit,
and Wasatch County did not even seek, much less obtain, a stay
from this court. As a result, the construction is complete and the
presence of the completed power lines, coupled with Wasatch
County’s failure to seek a stay, has rendered this proceeding for
judicial review moot.
II. Unavailable Remedy
¶20 We also conclude that under the circumstances of this
case, the specific remedy Wasatch County seeks—revocation of
the conditional use permit—is simply unavailable. Wasatch
County points to its county code, specifically Wasatch County
Code 16.23.06(D), and asserts that the conditional use permit that
it issued can be revoked and the transmission poles and lines
currently supplying power to customers can yet be removed.
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Wasatch County v. Utility Facility Review Board
Wasatch County notes that the Planning Commission can revoke
or modify a conditional use permit if it finds that the use permit
was obtained by mistake of fact, misrepresentation, or fraud.
However, Wasatch County does not point to any facts or
allegations demonstrating that the conditional use permit here
was obtained by mistake of fact, misrepresentation, or fraud.
Accordingly, the county code provision on which Wasatch
County relies is inapplicable, and these circumstances bolster
our conclusion that this proceeding for judicial review has been
rendered moot.
CONCLUSION
¶21 The remedy Wasatch County seeks is no longer available,
and, therefore, the proceeding for judicial review is dismissed as
moot.
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