(concurring and dissenting):
¶ 27 I agree that the Perry City Council (the City) did not violate Utah’s zoning statutes when it considered and acted on the Planning Commission’s proposal in separate parcels. I also agree that, with respect to the alleged violation of the city ordinance, the case is controlled by Springville Citizens v. City of Springville, 979 P.2d 332 (Utah 1999). Contrary to Gardner’s argument, Springville Citizens is not limited to suits for money damages.
¶ 28 I am willing to assume that the City violated the ordinance requirement that “any change” in the Planning Commission’s recommendation should be referred back to the Planning Commission. See Perry City Ordinance 2.3(4). In order to prevail, however, Gardner must show prejudice under the Springville Citizens standard, Gardner must therefore be able to demonstrate “how, if at all, the City’s decision would have been different” had the City complied with its ordinance. Springville Citizens, 979 P.2d at 338.
¶29 The main opinion remands the case and “require[s] Gardner to establish on remand that the City Council’s decision would have been different if it had followed its ordinance.” I disagree that this case should be remanded, in view of Gardner’s concession on appeal that he cannot show prejudice under the SpHngville Citizens standard. At oral argument before this court, Gardner’s attorney admitted that “I think it sets up a requirement that’s impossible to meet.” This concession is understandable given that, in response to this very lawsuit, the City rezoned the property a second time. See note 2 of main opinion. Thus, having been apprised of Gardner’s complaint, the City went forward with the same rezoning decision. In view of the concession, and the second rezone by the City, any remand of this case is unnecessary and unwarranted.
¶ 30 Finally, because I would affirm rather than remand, I would not reinstate the lis pendens.