Bermes v. Summit County

2023 UT App 94

THE UTAH COURT OF APPEALS

MICHAEL BERMES,
Appellant,
v.
SUMMIT COUNTY,
Appellee.

Opinion
No. 20220338-CA
Filed August 24, 2023

Third District Court, Silver Summit Department
The Honorable Richard E. Mrazik
No. 200500508

Eric P. Lee and Matt J. Pugh,
Attorneys for Appellant
Mitchell A. Stephens, Margaret Olson, and Helen E.
Strachan, Attorneys for Appellee

JUDGE RYAN D. TENNEY authored this Opinion, in which
JUDGES GREGORY K. ORME and JOHN D. LUTHY concurred.

TENNEY, Judge:

¶1 Michael Bermes owns a lot on a ridgeline that overlooks
part of Summit County. In 2015, Bermes received permission from
the county to build a large home on his lot. In 2020, Bermes sought
permission to build an additional 7,000-square-foot accessory
building on the lot. The Summit County Council denied this
request and the district court later upheld that denial. Bermes now
appeals. For the reasons set forth below, we affirm the district
court’s decision.
 Bermes v. Summit County

BACKGROUND

¶2 Michael Bermes owns a 6.35-acre, 276,000-square-foot lot
in Summit County. Bermes’s lot sits atop a ridgeline, it slopes
downward “in all directions,” and a structure on the lot “has the
potential to project into the horizon line” when viewed from
nearby roads. Bermes’s property is also in the county’s hillside
stewardship zone.

¶3 The Snyderville Basin Development Code (Snyderville
Code) governs construction on lots in Bermes’s area. The
Snyderville Code’s general plan “was developed to ensure that
the resort and mountain character of the basin is to be embraced
and protected, while suburban development patterns, which
erode the unique character of the basin, [are] discouraged and, to
the extent possible, prohibited.” Snyderville Code § 10-1-1.A.
Snyderville Code section 10-4-3 is titled “Critical Lands,” and
subsection C governs development on ridgelines.

¶4 Under section 10-4-3.C, “[s]tructures located on ridgelines
as viewed from” public roads are “prohibited.” But there’s an
exception to this prohibition for lots that preexisted the passage
of the Snyderville Code. For these lots, the Snyderville Code
allows “a structure to project into the horizon line as viewed from
a designated roadway” if the structure meets the “special
development standards in subsection [C.1.a] of this section.” Id.
§ 10-4-3.C.1. Bermes’s lot preexisted the Snyderville Code and is
thus subject to the special development standards.

¶5 This case turns on the special development standard set
forth in section 10-4-3.C.1.a(3), a provision that we’ll refer to as the
Site Grading Provision. In the part most relevant here, the Site
Grading Provision provides that for “[l]ots greater than five (5)
acres,” “[s]ite grading shall be minimized” and the “limit of
disturbance area shall not exceed twenty thousand (20,000) square
feet.” Id. § 10-4-3.C.1.a(3)(A)(iii).

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 Bermes v. Summit County

¶6 In 2015, Bermes requested approval to construct a nearly
15,000-square-foot home on his lot. The proposed disturbance
area for his home was 43,805 square feet, which was 23,805 square
feet above the 20,000-square-foot limit set forth in the Site Grading
Provision. Bermes accordingly applied to the Summit County
Board of Adjustment (which was the Summit County body that
decided such requests at the time) for a variance from the
disturbance limit. The Board of Adjustment approved the
variance under Snyderville Code section 10-4-3.C, and Bermes
then constructed his home. 1

¶7 This case and this appeal center on Bermes’s subsequent
request for permission to build an additional accessory building
on his property. 2 Some of Bermes’s initial plans for his home had

1. In the process of constructing this home, Bermes ended up
disturbing an area that was 100,000 square feet more than the
approved 43,805 square feet of disturbance, and he did so by
placing debris from his basement construction on an unapproved
(and undisturbed) area. Upon learning of this, Summit County
initiated an enforcement action, after which Bermes removed
most of the material that exceeded the scope of the approved
disturbance. Bermes then hydroseeded the disturbed area, though
most of the native vegetation in the area had been destroyed.

2. In the proceedings below and again on appeal, the parties have
often referred to this proposed building as a “barn.” In the special
exception application that will be discussed shortly, however,
Bermes said that his proposed building would be around 7,000
square feet and would “be used for[] car parking, Pickup Truck
parking, Boat parking, RV Trailer parking, Dirt Bike storage,
Snowmobile storage, ATV storage, Vehicle lift, General storage,
Hobby Shop, metal/wood working, Other similar uses TBD,
Possible future horse stall, and storage.” Given Bermes’s wide-
(continued…)

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 Bermes v. Summit County

included an additional 2,600-square-foot accessory building on
the property. Bermes’s final proposal for his home in 2015,
however, did not include the proposed accessory building.

¶8 In 2020, Bermes submitted a new plan to build an accessory
building on his property. In this proposal, Bermes said that his
proposed building would involve an additional 9,781-square-foot
disturbance area on his lot.

¶9 In an initial response to Bermes’s application for a building
permit, a Summit County planner informed Bermes that she was
“not anticipating any major issues.” But another county planner
soon informed Bermes that his “property [was] unable to qualify
for any additional structures”—including, in other words, the
proposed accessory building—“without an appropriate
exception.” This county planner informed Bermes that to build
the accessory building, Bermes would “need to receive a Special
Exception[3] to the disturbance limit” and that Summit County
would then “process the . . . Permit accordingly.”

¶10 As noted, Bermes’s request for a variance in 2015 had been
decided by the Board of Adjustment. By the time that Bermes
sought leave to build his accessory building in 2020, Summit
County’s procedures had been changed so that it was now the
Summit County Council (the Council) that would have to

ranging description of the intended uses for this proposed
building, we think it more correct to refer to it as an “accessory
building.” While we won’t alter the few references to it as a “barn”
that we quote from the record or the briefing, we’ll otherwise refer
to it as an accessory building throughout this opinion.

3. As indicated shortly below, the term “special exception” is not
capitalized in the code provision from which it’s drawn. While
we’ll follow suit in this opinion, we’ll leave untouched any
references from the record where it was capitalized.

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 Bermes v. Summit County

approve a special exception. Bermes accordingly submitted a land
use application asking for a special exception.

¶11 The section in the Snyderville Code dealing with special
exceptions contains a subsection entitled “Criteria for Approval.”
Snyderville Code § 10-3-7.B. Under this subsection, the Council

shall not approve a special exception unless the
applicant demonstrates that: 1. The special
exception is not detrimental to the public health,
safety and welfare; 2. The intent of the development
code and general plan will be met; . . . 3. The
applicant does not reasonably qualify for any other
equitable processes provided through the
provisions of this title; and . . . 4. There are equitable
claims or unique circumstances warranting the
special exception.

Id. § 10-3-7.B(1)–(4) (emphasis added). 4

¶12 Snyderville Code section 10-3-7.D.2 also states that the
Council “shall review” both the special exception application and
a “staff report.” A Summit County planner prepared a 150-plus
page staff report on Bermes’s application for leave to build the
accessory building. This report included an extensive background
section, including a history of the construction on Bermes’s
property, details on the accessory building construction request,

4. As discussed below, we conclude that the emphasized “and” in
this provision indicates that an applicant must establish that all
four of the criteria were satisfied.
Of perhaps lesser importance, we note the absence of an
Oxford comma in the Snyderville Code’s statement of the first
criterion. In deference to the apparent choice made on this front
by the code’s drafters, we’ll proceed similarly when quoting or
discussing this criterion in this opinion.

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 Bermes v. Summit County

public comments that had been received, and photos of Bermes’s
property.

¶13 This report then set forth an analysis of each of the four
special exception criteria set forth in section 10-3-7.B. Of note, the
planner concluded that Bermes’s application failed to satisfy any
of the criteria. On the first criterion (public health, safety and
welfare), the county planner concluded that Bermes’s accessory
building application did “not take into consideration the harmony
with the surrounding mountain and resort environment and [did]
not protect the scenic qualities of the Snyderville Basin.” On the
second criterion (intent of the development code and general
plan), the county planner concluded that granting a special
exception “would not be consistent with the policies and goals of
the Snyderville Basin General Plan nor would it be consistent with
the intent” of the Snyderville Code. 5 And on the fourth criterion
(equitable claims or unique circumstances), the planner
concluded that Bermes had “not explained what the equitable
claims and unique circumstances [were] in this request,” that
Bermes’s “request [was] not a unique circumstance” and any
“uniqueness of the lot is something that [Bermes] was aware of

5. With respect to both the first and second criteria, the planner
further concluded that Bermes’s proposal did not “[p]rotect the
environmentally sensitive nature of the land,” “[p]romote a
community of neighborhoods, where rural open space is
interspersed with traditional small town characteristic forms as
the dominant patterns of development,” or “[e]nsure that
individual residential development projects, to the extent
reasonable, minimize [their] impact on the desired community
balance.” (Quoting Snyderville Code § 10-1-1.D.)

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when [he] purchased the lot and constructed the home,” and that
there was accordingly “no evidence of a special circumstance.” 6

¶14 Despite having discussed the special exception criteria
from Snyderville Code section 10-3-7 through much of the report,
the “Conclusions of Law” section of the report incorrectly
referenced the “Zoning Variances” criteria that are found in
Snyderville Code section 10-3-6. And the planner then included a
recommendation in the report that the Council “conduct a public
hearing, review the proposal, and deny the application according
to the Findings of Fact and Conclusions of Law as outlined in this
Staff Report.”

¶15 The Council scheduled a public hearing to consider
Bermes’s application. Before the meeting occurred, Bermes’s
counsel submitted a “response to the Staff Report” in which he
argued that the 20,000-square-foot limit from the Site Grading
Provision applied per project, rather than cumulatively as to a
particular lot, and that because his proposed 9,781 square feet of
disturbance for this project was less than 20,000 square feet, he did
not need a special exception at all.

¶16 In October 2020, the Council held a public hearing to
consider Bermes’s request. Through counsel, Bermes again
argued that the 20,000-square-foot requirement applied only on a
per project basis. Beyond that, Bermes argued that his proposed
building satisfied each of the four special exception criteria, and
individual members of the Council engaged his counsel in
discussion (albeit briefly) on the first, second, and fourth criteria.
During this discussion, members of the Council and Bermes also

6. The staff report also concluded that Bermes’s requested
exception failed to satisfy the third criterion. But the Council
eventually conceded that Bermes had satisfied this criterion and
Summit County has not argued otherwise on appeal. That
criterion is accordingly not at issue.

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 Bermes v. Summit County

noted the Board of Adjustment’s 2015 finding that it would create
a hardship for Bermes if his request for a special exception for his
home was denied. They then discussed whether this would be
inconsistent with the assertion from the staff report that Bermes
would suffer no hardship if the Council now denied his request
for a special exception to build the accessory building. Finally, the
Council heard comments from many members of the public, all of
whom opposed Bermes’s request for permission to build this
accessory building. At the close of the meeting, the Council
decided to “continue the matter” to allow for “deliberation and
[a] possible decision at a later date.”

¶17 The Council next addressed Bermes’s request at a public
hearing that was held in November 2020. There, the Council did
not hear any further arguments. Instead, individual council
members shared their opinions about the request, after which the
Council voted to deny it. At the close of this discussion, the
Council noted that its legal counsel would prepare a written
decision to comport with the Council’s vote.

¶18 In a written decision that was issued in December 2020, the
Council concluded that the Site Grading Provision’s disturbance
area limit applied cumulatively. It then concluded that, because
of the disturbance area already associated with Bermes’s past
construction, Bermes now needed a special exception to build his
proposed accessory building. On this front, the Council noted that
“[t]his matter came before” it “on a request for a Special
Exception” and that Bermes was “requesting a Special
Exception.” Under the heading “Findings of Fact,” the Council
did not identify the special exception criteria by the numbers
given in Snyderville Code section 10-3-7.B, but it did discuss the
substance of each criterion, even employing the particular
verbiage used for each criterion that was used in section 10-3-7.B.
Under a “Conclusions of Law” heading at the end, however, the
decision referred to the criteria for zoning variances that are set

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forth in Snyderville Code section 10-3-6, as opposed to the special
exception criteria set forth in section 10-3-7.B. 7

¶19 Bermes filed a timely Petition for Review of the Council’s
decision in district court, arguing that the decision was both
(1) “arbitrary and capricious because it [was] not supported by

7. Though not identical, there is much similarity between the
criteria for a zoning variance under section 10-3-6.B and the
special exception criteria set forth in section 10-3-7.B. Specifically,
the variance criteria are:
1. Literal enforcement of this title would cause an
unreasonable hardship for the applicant that is not
necessary to carry out the general purpose of the
land use ordinances; 2. There are special
circumstances attached to the property that do not
generally apply to other properties in the same
district; 3. Granting the variance is essential to the
enjoyment of a substantial property right possessed
by other property in the same zone; 4. The variance
will not substantially affect the general plan and will
not be contrary to the public interest; and 5. The
spirit of the provisions of this title is observed and
substantial justice done.
Snyderville Code § 10-3-6.B.1–5. And as already noted, the special
exception criteria are:
1. The special exception is not detrimental to the
public health, safety and welfare; 2. The intent of the
development code and general plan will be met; . . .
3. The applicant does not reasonably qualify for any
other equitable processes provided through the
provisions of this title; and . . . 4. There are equitable
claims or unique circumstances warranting the
special exception.
Id. § 10-3-7.B.1–4.

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 Bermes v. Summit County

substantial evidence in the record” and (2) “illegal because it
[was] based on incorrect interpretations of the Code and [was]
otherwise contrary to law.”

¶20 In a ruling issued on June 3, 2021, the district court first
concluded that the 20,000-square-foot disturbance limit set forth
in the Site Grading Provision is cumulative, not per project. But
the court then concluded that the Council’s “[d]ecision denying
[Bermes’s] application for a special exception was illegal” because
its conclusions focused on the zoning criteria, rather than the
special exception criteria. The court accordingly reversed the
decision and remanded with instructions for the Council “to make
findings and conclusions as required by Utah law” regarding the
criteria set forth in “section 10-3-7.”

¶21 After the district court issued this decision, Bermes sent a
letter to the Council suggesting that it would “benefit from further
discussion regarding a point raised during earlier administrative
proceedings but not fully explored until the judicial proceedings:
that the disturbance that will be created to build [Bermes’s] barn
is not governed by the ‘site grading’ limit . . . but, instead,” by
disturbance area limits that are articulated in a neighboring
provision from the Snyderville Code. According to Bermes, the
Site Grading Provision was inapplicable because the proposed
accessory building didn’t involve an activity that qualified as “site
grading” at all.

¶22 On June 30, 2021, the Council met to again discuss Bermes’s
application. At the outset of the meeting, the county attorney
advised the Council that there was “no need for further
deliberations, given that [the Council] previously analyzed this
matter using the special exception criteria and only its written
decision was flawed [in] that it focused on variance criteria.” The
county attorney expressed her view that the Council had already
“considered the four” special exception criteria, even though
those criteria “didn’t go into the written decision.” From this, the

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 Bermes v. Summit County

county attorney saw no need “for reargument,” agreeing with a
member of the Council that their task was to “correct[] the written
document based on the conversations and decision [the Council]
made previously.” In response, Bermes’s counsel said that “if the
[Council] is inclined to reconsider some of these issues,” he was,
“of course, happy to address them,” but he also stated, “I don’t
think there is any reason to belabor these points any further.” The
Council then voted in favor of “a motion directing legal counsel
to prepare a written legal decision which comport[ed] with [the]
Council’s prior deliberations.”

¶23 The Council issued a new written decision (the Amended
Decision) on August 3, 2021. The Amended Decision included
much of the same analysis as the previous decision, but it now
changed the Conclusions of Law to correspond with the criteria
for a special exception set forth in Snyderville Code section
10-3-7.B. The Amended Decision also incorporated, “by reference,
the October 21, 2020[,] and November 4, 2020[,] Summit County
Council Minutes as well as the transcripts of both of those
meetings.”

¶24 Bermes then filed a petition asking the district court to
reverse the Council’s decision to deny his request for a special
exception. There, Bermes argued that the Amended Decision was
illegal, primarily because it “lack[ed] any indication of the
‘substantive review’ required” under Utah law, and that it was
also arbitrary and capricious because there was substantial
evidence that he successfully met all of the special exception
criteria.

¶25 The Council opposed that petition, after which the district
court heard oral arguments on it. At the close of those arguments,
the district court ruled from the bench that the Amended Decision
was neither illegal nor arbitrary and capricious. First, the court
ruled that the Amended Decision was legal because the Council
had given Bermes’s request the level of review required by law.

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 Bermes v. Summit County

The court noted that the “record show[ed] lengthy discussions
before the Council led by [Bermes’s counsel] of the four [criteria]
relevant to approval of a special exception under Section 10-3-7”
of the Snyderville Code and that the Council’s Amended Decision
subsequently “reache[d] a conclusion regarding each [criterion].”

¶26 Second, the court ruled that the Amended Decision was not
arbitrary or capricious because, after “consider[ing] all evidence
in the record, both favorable and contrary to the [Council’s]
decision,” a reasonable mind could find there was substantial
evidence supporting the Council’s Amended Decision. The court
pointed out that the Amended Decision “include[d] 36 findings of
fact” and made “a conclusion of law regarding each of those”
criteria “from 10-3-7.” And it emphasized that if the Council’s
rejection of “any one of those conclusions [was] supported by
substantial evidence,” this would be sufficient “to defeat the
application for special exception.” Examining the record, the
court then ruled that a “reasonable mind” could conclude that
Bermes had failed to establish the first, second, or fourth criteria,
and it pointed to evidence from the record supporting each
conclusion.

¶27 The district court subsequently issued a brief written
ruling that incorporated and memorialized this decision, after
which Bermes timely appealed.

ISSUES AND STANDARDS OF REVIEW

¶28 Bermes first challenges the district court’s conclusion that
the Council’s denial of his request for a special exception was
legal. A land use decision is illegal if it “violates a law, statute, or
ordinance in effect at the time the decision was made.” Outfront
Media, LLC v. Salt Lake City Corp., 2017 UT 74, ¶ 12, 416 P.3d 389
(quotation simplified). We review a lower court’s “interpretation
of a set of statutes” or “ordinances” for correctness. Id.

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 Bermes v. Summit County

¶29 Bermes next challenges the district court’s conclusion that
the Council’s decision was not arbitrary or capricious. On this, we
“afford no deference” to the district court’s decision. Northern
Monticello All. LLC v. San Juan County, 2023 UT App 18, ¶ 11, 526
P.3d 829 (quotation simplified). Instead, we “apply the statutorily
defined standard to determine whether the court correctly
determined whether the administrative decision was arbitrary,
capricious, or illegal.” Id. (quotation simplified). “A decision is
arbitrary and capricious only if it is not supported by substantial
evidence, which is that quantum and quality of relevant evidence
that is adequate to convince a reasonable mind to support a
conclusion.” Outfront Media, 2017 UT 74, ¶ 12 (quotation
simplified).

ANALYSIS

¶30 Bermes argues that the Amended Decision was both (I)
illegal and (II) arbitrary and capricious. We disagree.

I. Legality

¶31 “A court shall presume that a final land use decision of a
land use authority or an appeal authority is valid unless the land
use decision” is either “arbitrary and capricious” or “illegal.”
Utah Code § 17-27a-801(3)(b); see also Staker v. Town of Springdale,
2020 UT App 174, ¶ 17, 481 P.3d 1044 (“We will not disturb the
decision of a land use authority or an appeal authority unless the
decision is arbitrary and capricious or illegal.” (quotation
simplified)). A land use decision is illegal if it “violates a law,
statute, or ordinance in effect at the time the decision was made.”
Outfront Media, LLC v. Salt Lake City Corp., 2017 UT 74, ¶ 12, 416
P.3d 389 (quotation simplified).

¶32 In Bermes’s view, the Amended Decision was illegal
because (A) the proposed accessory building did not require “site

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grading” as that term is used in the Snyderville Code; (B) even if
it did, the Site Granding Provision’s disturbance limit should have
been measured per project, not cumulatively; and (C) the Council
failed “to conduct the substantive review required by Utah Code
section 17-27a-508(1)(a)(i).” We disagree on each front.

A. “Site Grading”

¶33 As noted, the Council applied Snyderville Code section
10-4-3.C.1.a(3)(A)(iii) to Bermes’s application for permission to
construct an accessory building. As also noted, the Site Grading
Provision limits the “disturbance area” that can be caused by “site
grading” on a particular lot.

¶34 Bermes argues that while the Site Grading Provision
obviously “limits permissible disturbance, it does so for site
grading, not barn construction.” And we acknowledge at least
some potential force to Bermes’s position. As Bermes points out,
the Site Grading Provision is set off by an initial inline subheading
that refers to “Grading Limitations,” after which it declares that
“[s]ite grading shall be designed to create visual interest by
combining terraced retaining walls, landscape pockets with
screen plantings, landscaping and variations in the texture and
pattern of wall materials.” Snyderville Code § 10-4-3.C.1.a(3).
Bermes argues that the use of the term “grading” and the nature
of the included examples suggest that this is a landscaping
provision, rather than one that would be applicable to the
proposed construction of a barn or accessory building. In
Bermes’s view, the Council should have instead applied the “very
next section of the Code”—Snyderville Code section 10-4-
3.C.1.a(4)(A). And as final support for his position, Bermes points
to caselaw that states zoning ordinances “restricting property
uses should be strictly construed, and provisions permitting
property uses should be liberally construed in favor of the
property owner.” Patterson v. Utah County Board of Adjustment, 893
P.2d 602, 606 (Utah Ct. App. 1995).

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 Bermes v. Summit County

¶35 But even accounting for these arguments, we ultimately
disagree with Bermes’s position and instead conclude that the Site
Grading Provision was indeed applicable to his proposed project.

¶36 The term “site grading” is not defined in the Snyderville
Code. Where a term is “not defined, we assess the ordinary
meaning of the term using the dictionary as our starting point.”
In re C.N., 2023 UT App 41, ¶ 26, 529 P.3d 1030 (quotation
simplified). 8 In a construction context like this one, the word
“grade” means “to level off to a smooth horizontal or sloping
surface.” 9 In other words, it refers to “the work of leveling dirt.” 10
And while the word “grading” is linked to the word “site” in this
provision, the word “site” simply refers to “the spatial location of
an actual or planned structure.” 11 Thus, taken together, the phrase
seems to refer to the act of leveling off (or, instead, creating a

8. “Municipal ordinances” like the Snyderville Code “are subject
to ordinary rules of statutory interpretation.” Ogden City Plaza
Invs. Ltd. v. Ogden City Board of Zoning Adjustment, 2022 UT App
74, ¶ 7, 514 P.3d 562, cert. denied, 525 P.3d 1262 (Utah 2022); see also
Pinetree Assocs. v. Ephraim City, 2003 UT 6, ¶ 13, 67 P.3d 462 (“We
interpret municipal and county ordinances and resolutions
according to our well-settled rules of statutory interpretation and
construction.”).

9. Grade, Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/grading [https://perma.cc/LUR7-5WZD].

10. Grade, Cornell University Facilities and Campus Services
Facilities Operations Glossary of Construction Terms, https://ope
rations.fs.cornell.edu/info/ir_glossary.cfm [https://perma.cc/NHT
7-KG57].

11. Site, Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/site [https://perma.cc/D5K9-4BYT].

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particular slope on) the surface of the ground underlying an
actual or planned structure. 12

¶37 So viewed, the act of grading the land in question was a
necessary step in Bermes’s proposed project. Again, Bermes’s
property is located on a ridgeline hill that slopes downward “in
all directions,” and yet Bermes now proposed to build a 7,000-
square-foot accessory building on it. To build this structure, he
would of course need to first level or smooth the dirt, and he
hasn’t contended otherwise. Because of this, and based on the
plain language alone, this project did indeed seem to require “site
grading.”

¶38 It’s true, as Bermes points out, that there was language
within the Site Grading Provision that referred to the inclusion of
“terraced retaining walls,” “landscape pockets with screen

12. Though not dispositive, we note that this phrase has
been defined similarly in some other publicly available sources
as well. See, e.g., Turner, What is Site Grading?,
HomeQuestionsAnswered, https://www.homequestionsanswere
d.com/what-is-site-grading.htm [https://perma.cc/FY3F-742R]
(noting that “[s]ite grading is the process of adjusting the slope
and elevation of the soil around a home or building” and that
“[p]rior to construction or renovation, site grading may be
performed to even out the surface and provide a solid
foundation”); Westmier Construction, What Is Site Grading & How
Is It Used in Construction?, Connect2Local, https://connect2local.c
om/l/338839/c/362163/what-is-site-grading---how-is-it-used-in-
construction [https://perma.cc/8XLS-B69N] (“Site grading is a
technique used by excavation professionals to adjust the slope of
an area prior to building construction.”); A Guide to Grading in
Construction, SafetyCulture, https://safetyculture.com/topics/land
-grading/ [https://perma.cc/2A9G-NKEG] (“Grading in
construction, typically called site grading, refers to the act of
ensuring a level base or getting a specific slope on the land.”).

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 Bermes v. Summit County

plantings,” and “landscaping and variations in the texture and
pattern of wall materials.” Snyderville Code § 10-4-3.C.1.a(3). But
even so, we disagree with Bermes’s claim that these landscaping-
related references somehow limited the Site Grading Provision to
projects that were confined to landscaping as opposed to the
construction of a building. Instead, we agree with the Council’s
characterization on appeal that these are best read as “aesthetic
requirement[s] that appl[y] when site grading occurs on a lot,”
rather than as definitional limitations on what the term “site
grading” means. Indeed, we note here that the Site Grading
Provision itself contains a subsection under which “[s]ite grading
shall be minimized and shall not exceed the following limit of
disturbance area (including all portions of the driveway and
construction activity).” Id. § 10-4-3.C.1.a(3)(A) (emphases added).
The terms “driveway” and “construction activity” would not
ordinarily be restricted to landscaping-related projects, and yet
the Site Grading Provision includes them under its auspices too.
Given the use of these non-landscaping terms, and given the more
general (and commonly accepted) definitions applicable to the
term “site grading,” we see no basis for limiting the Site Grading
Provision’s applicability to landscaping projects.

¶39 This leaves Bermes’s argument that the Site Grading
Provision doesn’t apply and that it’s instead the neighboring
provision, Snyderville Code section 10-4-3.C.1.a(4)(A), that
should govern his application. This neighboring provision has an
inline subheading “Landscape Requirements”—which is at least
a touch ironic, given that Bermes is arguing that the Site Grading
Provision is inapplicable precisely because it is limited to
landscaping, not the construction of the accessory building. In any
event, this neighboring provision governs the “[r]emoval of and
disturbance of existing vegetation,” and it “limit[s]” the
“disturbance area” to an area “no greater than twenty feet (20’)
from the building footprint.” Id. At oral argument, Bermes
claimed that because the Site Grading Provision measures the

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 Bermes v. Summit County

allowable disturbance area differently (i.e., it limits the
disturbance area to 20,000 square feet), “both can’t exist at the
same time.” But the Council contends otherwise. As the Council
explained at oral argument, “it is not inconsistent to say there is a
total disturbance area for a lot of five acres and that the total
disturbance area is 20,000 square feet or less, and to also say that
the disturbance area can only go so far beyond any particular
building and that the . . . construction has to occur within that
overall disturbance area. Both of those things can be true.” We
agree with the Council on this point. Like the Council, we see no
reason why a project couldn’t separately be subject to both
limitations. Bermes has therefore failed to persuade us that the
existence of this neighboring provision and its differently defined
allowable disturbance area is reason to conclude that the Site
Grading Provision is inapplicable to his proposed project. 13

¶40 In short, the natural understanding of the term “site
grading” encompasses the very kind of activity that Bermes
intends to conduct on his land. Because of this, it was not illegal
for the Council to apply the limit from the Site Grading Provision
to Bermes’s application.

B. Cumulative Nature of the Disturbance Area

¶41 As noted, the Site Grading Provision limits the
“disturbance area” on lots that are the size of Bermes’s to “twenty
thousand (20,000) square feet.” Snyderville Code § 10-4-
3.C.1.a(3)(A)(iii). Bermes next argues that, even if the Site Grading
Provision is applicable to his proposed accessory building, its
limits “would still not apply because [his] proposed [9,781-
square-foot] disturbance area is well under” the 20,000-square-
foot threshold. In Bermes’s view, the disturbance area limit

13. We note that the record shows that Summit County considered
both the Site Grading Provision and the neighboring provision in
other applications for construction in Bermes’s subdivision.

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 Bermes v. Summit County

should be measured on a per project basis, rather than a
cumulative basis. We disagree for two reasons.

¶42 The first is based on the language of the Snyderville Code
itself. It’s true, as Bermes points out, that the Site Grading
Provision does not explicitly state that the disturbance area
should be measured cumulatively. But the Site Grading Provision
also does not explicitly state that it applies on a per project basis.

¶43 When “evaluating the plain language of a particular
statutory provision, we interpret it in harmony with other statutes
in the same chapter and related chapters.” Summit Water Distrib.
Co. v. Summit County, 2005 UT 73, ¶ 17, 123 P.3d 437 (quotation
simplified); see also State v. Campbell, 2012 UT App 75, ¶ 2, 274 P.3d
1021 (“We also follow the cardinal rule that the general purpose,
intent or purport of the whole act shall control, and that all the
parts be interpreted as subsidiary and harmonious to its manifest
object.” (quotation simplified)). And though it does not address
this question explicitly, we do see some textual cues within the
Site Grading Provision that suggest that the disturbance area is to
be measured cumulatively. For example, the disturbance area
limit is set forth in Snyderville Code section 10-4-3.C.1.a(3)(A). Of
note, that subsection contains three different disturbance area
limits, each of which turn on the size of the “lot[]” rather than the
size of the particular project. See id. § 10-4-3.C.1.a(3)(A)(i)–(iii).
Moreover, the introduction to this subsection states that a site
grading disturbance area “includ[es] all portions of the driveway
and construction activity.” Id. § 10-4-3.C.1.a(3)(A) (emphasis
added). The word “all” is, of course, an inclusive term. And its
reference to the disturbance area associated with the
“driveway”—without any limitation based on whether the
driveway is involved in the particular “construction activity” now
at issue—likewise suggests that it’s focused on the total
disturbance area that has occurred on the lot cumulatively.

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 Bermes v. Summit County

¶44 Second, if there’s ambiguity about how to interpret a
provision, courts may look to the understood purpose of a statute
or ordinance. Alliant Techsystems, Inc. v. Salt Lake Board of
Equalization, 2012 UT 4, ¶ 21, 270 P.3d 441 (“Where the language
of a statute is ambiguous, we may look beyond the statute’s text
in order to ascertain its legislative purpose.” (quotation
simplified)). Here, the Snyderville Code tells us what its purpose
is. It states that “[s]tructures located on ridgelines . . . shall be
prohibited,” though structures are permitted on lots that
preexisted the passage of the Snyderville Code if they comply
with “special development standards,” Snyderville Code § 10-4-
3.C.1. And the Site Grading Provision from those special
development standards then states that “[s]ite grading shall be
minimized.” Id. § 10-4-3.C.1.a(3)(A). These are clear indications of
an intent to minimize development on this ridgeline. But Bermes’s
interpretation would in theory allow a lot owner to disturb far
more than 20,000 square feet on a lot, just so long as the
disturbances don’t occur within the same project. This
interpretation would facilitate excess development, not
“minimize” it, thus enabling the very thing that this provision is
designed to prohibit. This would be at odds with the “purpose the
statute was meant to achieve.” Summit Water Distrib. Co., 2005 UT
73, ¶ 17 (quotation simplified).

¶45 For these reasons, we agree with the Council that the Site
Grading Provision’s limit on the disturbance area is properly
understood as applying cumulatively, rather than on a per project
basis. Because of this, we see no illegality in the Council’s
conclusion that the proposed project violated this provision.

C. Substantive Review on Remand

¶46 As discussed, the Council initially denied Bermes’s request
in a decision that applied the zoning variance criteria found in
Snyderville Code section 10-3-6, rather than the special exception
criteria found in Snyderville Code section 10-3-7. Because of this

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 Bermes v. Summit County

error, the district court remanded for reconsideration, after which
the Council issued the Amended Decision that correctly applied
the special exception criteria. Bermes now argues that when the
Council adopted the Amended Decision, it simply “incorporated
its pre-remand deliberations,” and that by doing so, the Council
failed “to conduct the substantive review” of his request as
“required by Utah Code section 17-27a-508(1)(a)(i).” From this,
Bermes argues that the Amended Decision was illegal. We
disagree.

¶47 Utah Code section 17-27a-508(1)(a)(i) provides that “[a]n
applicant who has submitted a complete land use application,
including the payment of all application fees, is entitled to
substantive review of the application under the land use
regulations . . . in effect on the date that the application is
complete.” The statute does not define the term “substantive
review,” and the parties have pointed to no authority defining it
either. Regardless, whatever the precise contours of that
requirement actually are, we think the review given by the
Council before issuing the Amended Decision was more than
sufficient to fulfill its statutory obligation. This is so for several
reasons.

¶48 First, its earlier deliberations. Although the conclusions of
law in the initial decision incorrectly referred to the zoning
variance criteria, the record shows that the Council received much
information about the special exception criteria before issuing that
initial decision. Of particular note, the Council received a staff
report that identified each of the special exception criteria by
name and then provided detailed analysis of each criterion. On
the first criterion, for example, the report argued that Bermes’s
proposed accessory building was detrimental to the public health,
safety and welfare because it would “project into the horizon line”
and require disturbance far beyond the 20,000-square-foot limit,
which wasn’t in harmony “with the surrounding mountain and
resort environment” and wouldn’t “protect the scenic qualities of

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 Bermes v. Summit County

the Snyderville Basin.” On the second, the report argued that the
proposed accessory building did not meet the intent of the
Snyderville Code and general plan because of the same reasons
articulated in criterion one, plus the fact that the accessory
building wouldn’t “[p]rotect the environmentally sensitive nature
of the land,” wouldn’t “[p]romote a community of neighborhoods
where rural open space is interspersed with traditional smalltown
characteristic forms as the dominant pattern of development,”
and would negatively impact “the desired community balance.”
(Quoting Snyderville Code § 10-1-1.D.) And on the fourth, the
report argued that Bermes had no equitable claims or unique
circumstances warranting the special exception because no
neighbor in a similar situation had an accessory building
anywhere near the proposed size of Bermes’s building and that
the “uniqueness of the lot [was] something that [Bermes] was
aware of when [he] purchased the lot and constructed [his]
home.” 14

¶49 After receiving the staff report, the Council held two
meetings at which Bermes’s proposal was discussed. During the
first meeting, Bermes’s counsel presented detailed arguments
about why Bermes’s application satisfied each of the four special
exception criteria. With regard to the first criterion, for example,
Bermes’s counsel argued that the proposed accessory building
was “not detrimental to the public health, safety and welfare.”
And in making this argument, Bermes’s counsel criticized the
staff report’s conclusion that Bermes did not satisfy this criterion,
responding with particularity to several points made in the report
about it. In this same meeting, several members of the Council
specifically commented on the special exception criteria by name
and in substance. At one point, for example, two members of the
Council asked Bermes’s counsel about arguments he’d made that

14. Bermes has not argued that we could (much less should)
assume that the council members didn’t read the report.

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 Bermes v. Summit County

were specific to the first special exception criterion. And at
another point, members of the Council asked questions specific to
the second criterion. During this same meeting, members of the
Council also asked him questions about the history of Bermes’s
construction on this lot, an issue that arguably related to several
of the criteria. During that portion of the discussion, a member of
the county attorney’s office noted that this was “why” Summit
County “come[s] up with these specialized criteria and a special
exception so that if someone has a piece of property that does not
otherwise comply with any other provision of the code, [the
county] still want[s] them to be able to build a home on it if it’s a
lot of record,” thus directly referencing the special exception by
name and concept. (Emphases added.)

¶50 During the second meeting, the Council again deliberated
about whether to approve Bermes’s proposed accessory building.
At the outset of that discussion, one council member discussed the
fourth special exception criterion, after which a second council
member stated that she “concur[red]” with the first council
member and that she “came to the same conclusion.” 15

15. When the potential relevance of these discussions came up at
oral argument before this court, Bermes’s counsel noted that he
had done the “talking” about the special exception criteria during
the second meeting before the Council and that there “was almost
no comment from the council members about [his] argument.”
Fair enough. But even if it’s true that Bermes’s counsel did most
of the talking about these criteria at that meeting, the ultimate
question is whether there’s reason to believe that the Council
considered them. And in answering this question, we have no
reason to assume that the council members were ignoring
Bermes’s counsel as he spoke. Thus, because Bermes’s counsel
was focused on the correct criteria, it’s reasonable to assume that
the council members were considering those criteria while
(continued…)

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 Bermes v. Summit County

¶51 Second, the original decision. As noted, the Conclusions
of Law in the original decision incorrectly focused on the zoning
criteria. But even so, much of the rest of the decision was correctly
focused on the special exception criteria. For example, the
decision began by highlighting that “[t]his matter came before the
[Council] on a request for a Special Exception.” (Emphasis added.)
And the Findings of Fact likewise stated that Bermes was
“requesting a Special Exception.” (Emphasis added.) Moreover,
while the decision did not identify the special exception criteria
by number, it did discuss the substance of each criterion, even
employing the particular verbiage used in the special exception
provisions from the Snyderville Code.

¶52 Third, the Council’s post-remand discussion and
ratification. After the district court remanded to the Council for
reconsideration under the correct criteria, the Council met to
discuss the matter. At that meeting, the county attorney expressed
her view that there was “no need for further deliberations, given
that [the Council] previously analyzed this matter using the
special exception criteria and only its written decision was flawed
[in] that it focused on variance criteria.” When she made this
point, the council members did not disagree, nor did they express
any confusion about any new set of questions that they were now
being asked to decide in the first instance. As one member of the
Council put it, their task was simply to “correct[] the written
document based on the conversations and decision [the Council]
made previously.” No member of the Council pushed back on this
assertion. And Bermes’s own counsel seemed to see things
similarly, telling the Council that if it was “inclined to reconsider

listening to him. And this assumption is, again, supported by the
facts that (i) certain members of the Council had engaged with
Bermes’s counsel in some discussion about the special exception
criteria at the first meeting, and (ii) certain members of the Council
discussed those criteria at the second meeting too.

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 Bermes v. Summit County

some of these issues,” he would be “happy to address them,” but
then stating that he saw no “reason to belabor these points any
further.” (Emphases added.)

¶53 Again, the Council was legally obligated to provide a
“substantive review” of Bermes’s application under the correct
and applicable provision. Here, information regarding the special
exception criteria was given to the Council before its initial
deliberations, those criteria were discussed by Bermes’s counsel
at those deliberations, the council members engaged with
Bermes’s counsel and with each other regarding them, the criteria
were discussed in substance in the original decision, and, after the
remand, the Council agreed that though its initial decision was
mistaken in form, its actual decision was in substance focused on
the correct criteria. Given all this, we disagree with Bermes’s
suggestion that the Council’s adoption of the Amended Decision
was the product of insufficient deliberation. We see no illegality
on this front.

II. Arbitrary or Capricious

¶54 “A court shall presume that a final land use decision of a
land use authority or an appeal authority is valid unless the land
use decision” is either “arbitrary and capricious” or “illegal.”
Utah Code § 17-27a-801(3)(b). Bermes argues that even if the
Amended Decision was not illegal, it was still arbitrary and
capricious because (A) there was not substantial evidence to
support its conclusion that the special exception criteria were not
satisfied and (B) the Council treated him unfairly. We disagree. 16

16. As noted, we’re reviewing the district court’s ruling on this
issue, and we “afford no deference” to the district court’s
determination that the Council’s decision was not arbitrary or
(continued…)

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 Bermes v. Summit County

A. Substantial Evidence

¶55 “A land use decision is arbitrary and capricious if the land
use decision is not supported by substantial evidence in the
record.” Utah Code § 17-27a-801(3)(c)(i). Bermes advances two
arguments relating to the alleged lack of substantial evidence:
(1) he claims that the Amended Decision wasn’t specific enough
to allow for a substantial evidence review and (2) he also claims
that there wasn’t substantial evidence to support the Council’s

capricious. Northern Monticello All. LLC v. San Juan County, 2023
UT App 18, ¶ 11, 526 P.3d 829 (quotation simplified).
The parties disagree about whether the Amended Decision
was legislative or administrative in nature. In some cases, this
distinction might matter because it would alter the standard of
review for the arbitrary and capricious analysis. “When a
municipality makes a land use decision as a function of its
legislative powers, . . . such a decision is not arbitrary and
capricious so long as the grounds for the decision are reasonably
debatable.” Bradley v. Payson City Corp., 2003 UT 16, ¶ 10, 70 P.3d
47 (quotation simplified). But “when a land use decision is made
as an exercise of administrative or quasi-judicial powers,” the
decision is not arbitrary and capricious if it is “supported by
substantial evidence.” Id. (quotation simplified). The reasonably
debatable standard is “more deferential” than the already “highly
deferential” substantial evidence standard. Id. ¶¶ 1, 14; see also
Checketts v. Providence City, 2018 UT App 48, ¶ 19, 420 P.3d 71.
Bermes argues (and the district court agreed) that the
Amended Decision was administrative in nature. The Council, on
the other hand, suggests that it was legislative in nature. We need
not resolve this dispute, however, because we conclude that the
Amended Decision was not arbitrary or capricious even under the
less deferential substantial evidence standard.

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 Bermes v. Summit County

conclusions that he had not satisfied the special exception
criteria.17

1. Specificity of the Amended Decision

¶56 It’s settled in Utah that “an administrative agency must
make findings of fact and conclusions of law that are adequately
detailed so as to permit meaningful appellate review.” McElhaney
v. City of Moab, 2017 UT 65, ¶ 35, 423 P.3d 1284 (quotation
simplified). And for good reason. “Without sufficiently detailed
findings that disclose the steps by which an administrative agency
reaches its ultimate factual conclusions, [an appellate court]
cannot perform its duty of reviewing the order in accordance with
established legal principles and of protecting the parties and the
public from arbitrary and capricious administrative action.” Id.
¶ 36 (quotation simplified). In this sense, the statutory phrase
“substantial evidence” functions as something of a “term of art”
that “presupposes” that the administrative body will issue
“written findings” that are sufficiently specific so as to facilitate
appellate review. Id. ¶ 41; see also Northern Monticello All. LLC v.
San Juan County, 2023 UT App 18, ¶ 24, 526 P.3d 829 (holding that

17. Bermes makes an additional argument that serves as
something of a springboard for his lack of specificity argument. In
what’s essentially a repackaged version of the argument
addressed above, Bermes suggests that the Amended Decision
was arbitrary and capricious because it was “not the product of
any kind of deliberative process” in which the Council deliberated
about the special exception criteria after the district court’s
remand.
We reject this argument for the same reason that we
rejected its progenitor. As indicated above, we think it clear that
the Council did indeed deliberate about whether Bermes’s
application satisfied the special exception criteria. Given this, we
see nothing arbitrary or capricious on this front.

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 Bermes v. Summit County

because “the land use authority made no written findings . . . this
deficiency prevented appropriate appellate review”).

¶57 In Bermes’s view, the Amended Decision did not
adequately disclose the steps that led the Council to reject his
application. And in making this argument, Bermes focuses on
ways he thinks the Amended Decision could or should have been
clearer. But as our supreme court explained when rejecting a
similar argument in a past case, “recognizing that the Board could
have crafted an order that better explained the Board’s reasoning
does not translate into a basis for concluding that the Board lacked
substantial evidence for its decision.” J.P. Furlong Co. v. Board of
Oil, Gas, & Mining, 2018 UT 22, ¶ 27, 424 P.3d 858. Instead, the
relevant question is whether the Council issued “sufficiently
detailed findings” that would give the applicant “notice of what
it would need to challenge on appeal.” Id. ¶ 30 (quotation
simplified). So long as the explanation given by the administrative
body in question is sufficiently detailed to provide the basis for
review, the decision will not be overturned for lack of
specificity—even if the administrative body “did not walk
through” all the arguments made by the applicant “item by item”
or “articulate” its precise conclusions “in each individual
instance.” Id. ¶ 27. In other words, “to survive the scrutiny of a
reviewing court, a land use authority’s legal analysis need not be
a shining example of lucidity.” Checketts v. Providence City, 2018
UT App 48, ¶ 17, 420 P.3d 71.

¶58 Here, after the district court remanded for reconsideration,
the Council issued the Amended Decision. At the close of the
Amended Decision, the Council included a Conclusions of Law
section in which it stated that Bermes had not satisfied three of the
special exception criteria. Bermes focuses on the fact that those
Conclusions of Law were not set forth in much detail. But they
didn’t need to be, because the Council had also explained its
rationale under the Findings of Fact heading. In that section, the
Council made 36 separately numbered findings. These included

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 Bermes v. Summit County

findings about the history of the development on Bermes’s lot and
the history of this application, as well as findings about the
Snyderville Code provisions that govern the proposed
development. Of note, these also included findings about why the
Council believed that Bermes had not satisfied each of the three
criteria at issue in this appeal:

• First Criterion (public health, safety and welfare): With
respect to the public welfare component of this criterion,
the Council found that the proposed accessory building
did “not take into consideration the harmony with the
surrounding mountain and resort environment and does
not protect the scenic qualities of the Snyderville Basin.”
The Council further found that Bermes’s proposed
building did not “[p]romote a community of
neighborhoods, where rural open space is interspersed
with traditional small town characteristic forms as the
dominant patterns of development,” nor did it “minimize
its impact on the desired community balance.”

• Second Criterion (intent of the development code and
general plan): The Council found that Bermes was
“proposing to further develop in an area subject to critical
land limitations and design requirements identified in both
the General Plan and the [Synderville] Code.” The Council
found that he had “previously received a variance to
increase” the “disturbance by 28,805 sq. ft.” when he built
his home, and it found that now “[g]ranting a Special
Exception of 20,000 additional sq. ft. of disturbance would
not be consistent with the policies and goals of the
Snyderville Basin General Plan nor would it be consistent
with the intent” of the Snyderville Code. On this front, the
Council thus found “that the request for additional
disturbance area” was “not valid” since the owner had
“already capitalized on and over the maximum
disturbance allowed.”

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 Bermes v. Summit County

• Fourth Criterion (equitable claims or unique
circumstances): The Council specifically found that
Bermes’s request was “not a unique circumstance.” In the
Council’s view, this was so because no similarly situated
neighbor had an accessory building the size of Bermes’s
proposed building and the “uniqueness of the lot [was]
something that [Bermes] was aware of when [he]
purchased the lot and constructed the home.”

¶59 Given the Council’s findings, we disagree with Bermes’s
contention that we cannot conduct a substantial evidence review.
To the extent that Bermes’s argument turns on lack of specificity,
we accordingly reject it.

2. Lack of Evidence

¶60 This leads to the real thrust of Bermes’s substantial
evidence claim, which is that there was not substantial evidence
to support the Council’s conclusions that he had not satisfied the
various special exception criteria.

¶61 Substantial evidence “must be more than a mere scintilla
of evidence, though something less than the weight of the
evidence.” Kilgore Cos. v. Utah County Board of Adjustment, 2019 UT
App 20, ¶ 24, 438 P.3d 1025 (quotation simplified). Substantial
evidence is “that quantum and quality of relevant evidence that is
adequate to convince a reasonable mind to support a conclusion.”
Outfront Media, 2017 UT 74, ¶ 12 (quotation simplified). When
conducting a substantial evidence review, this court does “not
weigh the evidence anew or substitute [its] judgment for that of
the municipality.” Farley v. Utah County, 2019 UT App 45, ¶ 22,
440 P.3d 856 (quotation simplified). Rather, we “examine the
whole record to determine whether a reasonable mind might
accept as adequate the evidence supporting the decision.” J.P.
Furlong Co., 2018 UT 22, ¶ 23 (quotation simplified); see also Farley,
2019 UT App 45, ¶ 22 (noting that when conducting a substantial

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 Bermes v. Summit County

evidence review, “we consider all of the evidence in the record”
(quotation simplified)). In this sense, the substantial evidence
standard is “highly deferential.” Checketts, 2018 UT App 48, ¶ 19.

¶62 Again, the Snyderville Code stated that the Council “shall
not approve a special exception unless the applicant demonstrates
that: 1. The special exception is not detrimental to the public
health, safety and welfare; 2. The intent of the development code
and general plan will be met; . . . 3. The applicant does not
reasonably qualify for any other equitable processes provided
through the provisions of this title; and . . . 4. There are equitable
claims or unique circumstances warranting the special
exception.” Snyderville Code § 10-3-7.B (emphases added). This
provision notably uses the conjunctive “and” to link the four
criteria, and this word “is most often considered to create a
conjunctive condition.” Paar v. Stubbs, 2005 UT App 310, ¶ 8, 117
P.3d 1079. The district court read this provision conjunctively,
concluding that “if any one of those conclusions is supported by
substantial evidence,” this would be enough to “defeat the
application for a special exception.” Bermes notably does not
challenge that conclusion on appeal. Because of this, we agree that
if substantial evidence supports any of the Council’s conclusions,
Bermes’s application for a special exception must fail.

¶63 The Council concluded that Bermes had not established the
first, second, and fourth criteria. Here, because we conclude that
there was substantial evidence to support the Council’s
conclusion that Bermes failed to establish the second criterion, this
is enough to affirm the decision.

¶64 As noted, the second criterion required Bermes to
demonstrate that a special exception for his proposed accessory
building would meet “[t]he intent of the [Snyderville Code] and
general plan.” Id. § 10-3-7.B.2. And as set forth in the Snyderville
Code, the general plan “was developed to ensure that the resort
and mountain character of the basin is to be embraced and

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 Bermes v. Summit County

protected, while suburban development patterns, which erode
the unique character of the basin, [are] discouraged and, to the
extent possible, prohibited.” Id. § 10-1-1.A (emphasis added). Thus,
the goal of the general plan is unmistakably tilted toward limiting
development in this protected area.

¶65 But there was nothing limited about Bermes’s proposal,
and the Council had an obvious basis for recognizing this. Again,
by his own account, Bermes sought permission to build a 7,981-
square-foot accessory building next to his already-built 15,000-
square-foot home. And in the staff report that was provided to the
Council—which, again, is properly considered as part of the
“whole record” nature of this review, J.P. Furlong Co., 2018 UT 22,
¶ 23 (quotation simplified)—the county planner likewise
concluded that Bermes’s proposed building did not “meet” the
Snyderville Code’s “goal” of “[p]rotect[ing] the environmentally
sensitive nature of the land” and limiting excess development in
this ridgeline area.

¶66 While Bermes obviously disagrees with that conclusion,
we again note that in this deferential review, we “do not weigh
the evidence anew or substitute our judgment” for that of the
municipality. Farley, 2019 UT App 45, ¶ 22 (quotation simplified).
The general plan was focused on limiting development, so the
Council therefore had a sufficient basis for concluding that this
particular goal would not be served by adding a large secondary
building to a lot that already has an even larger primary residence
on it. Given that Bermes was required to prevail on all four of the
special exception criteria, this is a sufficient basis to reject his
claim. 18

18. In any event, we note that we also see substantial evidence to
support the Council’s conclusion that the fourth criterion was not
(continued…)

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 Bermes v. Summit County

B. Unfairness

¶67 Finally, Bermes claims that the Amended Decision was
arbitrary and capricious because of (1) discrepancies between
how his neighbors were treated in past cases and how he was
treated here and (2) discrepancies between how he was treated
when he applied for a variance in 2015 and how he was treated
when applying for this special exception in 2020. We disagree.

¶68 First, Bermes argues that he is being treated differently
than his neighbors have been treated in the past. Of note, he
claims that the Council “did not apply its cumulative disturbance
theory to other lots in the neighborhood.” But even accepting this
assertion as true, Bermes provides no legal support for his
assertion that the Council’s failure to enforce this ordinance in
past instances means that it cannot enforce it now. To the contrary,
it’s settled that a municipality’s “failure to enforce zoning for a

met. That criterion required Bermes to show there were “equitable
claims or unique circumstances warranting the special
exception.” Snyderville Code § 10-3-7.B.4. But evidence before the
Council showed that there were only three other accessory
buildings (out of 43 total lots in the area) that projected into the
horizon line in the way that Bermes’s proposed accessory
building would. In addition, evidence showed that Bermes’s
proposed building was nearly five times the size of the largest of
these three accessory buildings. There was also no evidence that
there were unique “geographic or geologic” features about
Bermes’s property that distinguished it from other properties
within the ridgeline area. And the Council had evidence that
Bermes was aware of his lot’s topography when he purchased the
lot and applied for a variance to build his home, which meant that
he was likewise on notice that any proposed construction would
be subject to heightened zoning restrictions. All of this together
supported the Council’s view that Bermes had not satisfied the
fourth criterion.

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 Bermes v. Summit County

time does not forfeit the power to enforce.” South Weber City v.
Cobblestone Resort LLC, 2022 UT App 63, ¶ 29, 511 P.3d 1207
(quotation simplified); see also Salt Lake County v. Kartchner, 552
P.2d 136, 138 (Utah 1976) (“Ordinarily a municipality is not
precluded from enforcing its zoning regulations[] when its
officers have remained inactive in the face of such violations.”).
For this reason alone, Bermes has not persuaded us that there was
anything arbitrary or capricious about this decision.

¶69 In any event, when Bermes made this same argument
below, the Council heard evidence showing that there were
differences between the neighboring lots and the construction
projects on those lots. This included evidence that Bermes’s
proposed accessory building would be multiple times larger than
any other accessory building on the horizon line. For this reason
too, we see no basis for concluding that the Council’s decision not
to deny the requests in past cases rendered its decision to deny
the request in this case arbitrary or capricious.

¶70 Second, Bermes claims that there is an unfair discrepancy
between Summit County’s decision to approve his request for a
variance when building his home in 2015 and its decision to deny
his request for a special exception in 2020. But Bermes again
provides no authority for his assertion that this difference legally
matters, and in our view, it fails under the same authority that
we’ve just cited. Simply put, when Summit County approved his
request for a variance in 2015, that didn’t mean that it was then
obligated to approve any future requests made by Bermes for
additional variances or exceptions on his lot. 19

19. The potential negative consequences of accepting Bermes’s
proposed rule seem obvious. If Bermes’s rule were followed, this
would in theory disincentivize municipalities from ever granting
a request for a variance or a special exception, lest the
(continued…)

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 Bermes v. Summit County

¶71 In any event, putting the lack-of-authority problem aside,
there are several differences between the 2015 and 2020
applications. One difference is a procedural one. In 2015, Bermes’s
request for a variance ran through the Board of Adjustment; in
2020, his special exception request ran through the Council.
Another has to do with the nature of the requests. In 2015, Bermes
applied for a variance, but in 2020, he applied for a special
exception. While we take the point that there is substantial
overlap between the two standards, there is at least some
difference, and this too might provide some basis for the differing
outcomes.

¶72 But more significantly, there was a pronounced
substantive difference between the two requests: Bermes’s
request in 2015 was for leave to build a home, while his request in
2020 was for leave to build an accessory building. A county
attorney highlighted this at the first meeting, stating that the
Snyderville Code’s special exception provisions exist, in part, “so
that if someone has a piece of property that does not otherwise
comply with any other provision in” the Snyderville Code, they
are still “able to build a home.” (Emphasis added.) When Bermes
countered that “there’s no distinction in the [special exception]
criteria based on the nature of the structure” that is being built,
the county attorney responded that “the analysis of the hardship
changes” depending on the type of structure at issue. We agree
with the county attorney’s sentiment. After all, a lot owner who is
prevented from constructing a home on the owner’s property
would face an entirely different set of problems than a lot owner
who has a home but is being prevented from building a separate
building for the owner’s extra vehicles (or, in the case of a barn,
the owner’s animals).

municipality effectively lose zoning or enforcement power over
that lot or other neighboring lots moving forward.

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 Bermes v. Summit County

¶73 Finally, Bermes’s own history gave the Council at least
some additional reason to view his latest request with disfavor.
The Board of Adjustment in 2015 approved Bermes’s request to
disturb 43,805 square feet when building his home. But in the
process of building that home, Bermes disturbed an area that was
approximately 100,000 square feet beyond the 43,805 that was
already approved, and in doing so, “most of the native vegetation
was lost.” This led to an enforcement action. In light of this
history, the Council had at least some reason to be skeptical that
Bermes would limit himself to the contours of his own proposal if
it now approved his request for a special exception to build an
accessory building. This, too, gave the Council some reason to
treat Bermes differently in 2020 than the Board of Adjustment had
treated him in 2015.

¶74 In short, Bermes has not persuaded us that the Amended
Decision was somehow arbitrary or capricious because of any
discrepancies between its decision here and the past decisions
involving Bermes’s neighbors or even himself. This claim
accordingly fails.

CONCLUSION

¶75 We see no illegality in the Council’s decision to deny
Bermes’s request for a special exception. First, we conclude that
the Snyderville Code’s Site Grading Provision applies to Bermes’s
special exception application because construction of his
accessory building requires site grading. Second, we conclude
that the provision’s disturbance area limit applies cumulatively
and that because Bermes had previously exceeded this limit, the
Council properly concluded that Bermes needed a special
exception to disturb more area. And third, we conclude that the
Council’s Amended Decision was not illegal because it provided
the substantive review required under Utah law.

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 Bermes v. Summit County

¶76 We also conclude that the denial was not arbitrary or
capricious. The Council’s Amended Decision was specific enough
to facilitate appellate review, and its determination that Bermes
had not satisfied the second criterion was supported by
substantial evidence. Finally, Bermes has not persuaded that there
was any actionable unfairness based on how Bermes was treated
in these proceedings.

¶77 For these reasons, we affirm the district court’s ruling.

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