Court of Appeals of
2006 WL 2021721
July 20, 2006
Summary of Opinion
Landowner Kirby had briefly
removed livestock from her property but intended to bring them back when a
fence was rebuilt. The Board had
approved her request for a nonconforming use and
1 Edward B. Rogers (Appellant) appeals the
trial court's affirmation of the West Valley City Board of Adjustment's (the
Board) decision approving Cleone Kirby's
nonconforming use of allowing horses on her property (the Property). Appellant
argues that the Board erred in its interpretation of the applicable
¶ 2 Beginning in 1958, when her family
acquired the Property, [FN2] located at 3724
South 3200 West, in
¶ 3 Since 1977, Appellant has owned a forty-two-unit apartment complex bordering the Property. When the complex was constructed in the early 1970s, the builder erected a cedar fence along the border between the apartment complex and the Property. Prior to the construction of the cedar fence, members of the Kirby family built their own fence to separate the properties. However, that fence apparently was removed after the cedar fence was completed.
¶ 4 Sometime in 2002, two men representing Appellant, whom Ms. Kirby identified as Lou and Joe, approached her about cutting down some cottonwood trees that were growing on Appellant's property. Ms. Kirby stated that Lou and Joe wanted to drop the trees onto the Property so they would not hit the apartments. Ms. Kirby further stated that the men told her they would have to take down the cedar fence to drop the trees, but that Appellant would replace the fence. Appellant, however, stated that neither he nor "any agent of mine that I know of" told Ms. Kirby that he would replace the cedar fence. Ms. Kirby lived on social security income and could not afford to replace the cedar fence.
¶ 5 Prior to Appellant's removal of the cedar fence, Ronald Richins's brother had boarded horses on the Property for two years. [FN4] After the fence was removed, Ronald Richins's brother moved his horses. Ronald Richins stated before the Board that Appellant's failure to replace the fence was "one of the reasons we couldn't put the horses back on the [P]roperty."
¶ 6 In 2003, Barbara and Raymond Spray
¶ 7 At the Board meeting to discuss the nonconforming use application, Ms. Kirby provided twenty-four signed statements from prior property owners and surrounding property owners stating that horses had been on the property a substantial portion of every year since the late 1960s or early 1970s. [FN5] Alfred Newman also provided a letter stating that animals had been kept on the property beginning in 1958, when the Kirby family acquired the Property.
¶ 8 Citing concerns that included the
potential spread of
¶ 9 After hearing testimony from area residents and others, including members of the Kirby family and Appellant, the Board voted to approve the nonconforming use on the Property. The Board members discussed Ms. Kirby's assertion that she intended to return horses to the Property, as well as the possible reasons for her delay in constructing another fence. At least one Board member found it significant that during the two years when horses were absent from the Property, Ms. Kirby maintained it as a pasture and did not attempt to develop or otherwise transform it. In its decision, the Board stated that animals had historically been kept on the Property and that "the property owners did not intend to abandon that use for the keeping of animals."
¶ 10 Appellant filed a Petition for Review with the trial court, which affirmed the Board's decision. This appeal followed.
ISSUE AND STANDARD OF REVIEW
¶ 11 Appellant contends that the Board
erred when it approved Ms. Kirby's nonconforming use of allowing horses on her
property. Appellant argues that under the applicable
¶ 12 "[W]e review the
administrative decision just as if the appeal had come directly from the
agency" and accord no particular deference to the trial court's decision. Wells v. Board of Adjustment of Salt Lake City Corp., 936
P.2d 1102, 1104 (Utah Ct.App.1997) (quotations and citations omitted). "The Board will
be found to have exercised its discretion within the proper boundaries unless
its decision is arbitrary, capricious, or illegal." Patterson
¶ 13 Appellant contends that the plain
language of the relevant
¶ 14 The West Valley City Municipal Code states, in relevant part:
A nonconforming use of land lawfully existing on the effective date of this Chapter may be continued provided such nonconforming use shall not be expanded or extended into any other open land.... If the nonconforming use is discontinued for a continuous period of more than one year it shall constitute an abandonment of the use and any future use of such land shall conform to the provisions of the zone in which it is located.
¶ 15 To determine whether the Board's
decision was error, we begin by considering the proper interpretation of the
applicable ordinance. "In interpreting the meaning of ... [o]rdinance[s], we are guided by the standard rules of
statutory construction." Brown v. Sandy City Bd. of
Adjustment, 957 P.2d 207, 210 (Utah Ct.App.1998) (omission and alterations
in original) (quotations and citation omitted). " '[B]ecause zoning ordinances are in derogation of a property
owner's common-law right to unrestricted use of his or her property, provisions
therein restricting property uses should be strictly construed, and provisions
permitting property uses should be liberally construed in favor of the property
¶ 16 The applicable
Appellant argues that the term "shall" in Section 7-18-106(3) is mandatory, rather than discretionary, and
therefore prevents the Board from considering factors other than whether the
nonconforming use resumed within one year.
¶ 18 Appellee further argues that some courts have determined that discontinuance of a
nonconforming use for a time period in excess of the time specified in a zoning
ordinance created only a rebuttable presumption of
abandonment. See Metzger v. Bensalem Twp. Zoning Hearing Bd., 165 Pa.Cmwlth. 351, 645 A.2d 369,
370 (Pa.Commw.Ct.1994) ("The discontinuance of a use in excess of the time
limitation set forth in the zoning ordinance ... creates a presumption of an
intent to abandon. However, the party asserting abandonment must also prove
actual abandonment, which cannot be inferred from non-use alone." (internal citation omitted)); Ansley House, Inc. v. City of Atlanta, 260
¶ 19 The present case was decided under
the former Municipal Land Use Development and Management Act, which did not
contain a rebuttable presumption standard. The former
Act has since been repealed and replaced with the current Land Use Development and Management Act, which does contain a rebuttable presumption standard. Compare
¶ 20 In
this instance, however, we conclude that the term "shall" in West
Valley City Municipal Code Section 7-18-106(3) was used advisedly and that we
are thus precluded from considering a party's intent. See Board of Educ. of Granite Sch. Dist. v.
Salt Lake County, 659 P.2d 1030, 1035 (Utah 1983) ("[We] assume[ ]
that the terms of a[n] [ordinance] are used advisedly and should be given an
interpretation and application which is in accord with their usually accepted
meanings."). Moreover, the word "shall" in an ordinance is
"usually presumed mandatory and has been interpreted as such previously in
this and other jurisdictions." Pugh v. Draper City, 2005 UT 12,¶ 13, 114 P.3d 546
(quotations and citation omitted); see also Landes v. Capital City Bank, 795 P.2d 1127, 1131 (
¶ 21 We therefore determine that the
Board erred in its interpretation of West Valley City Municipal Code section
7-18-106(3). Under that section, a landowner's
intent is irrelevant in determining whether a nonconforming use has been
¶ 22 Accordingly, we reverse and remand for further proceedings consistent with this opinion.
¶ 23 WE CONCUR: JUDITH M. BILLINGS, Judge, and JAMES Z. DAVIS, Judge.
FN1. Appellant also argues that the Board erred in its determination that Ms. Kirby intended to continue allowing horses on the Property because the Board's decision was not supported by substantial evidence. Because we decide this case on other grounds, we do not reach this issue.
FN2. Ms. Kirby presently has a life estate in the Property.
FN3. In 1980,
FN4. It does not appear that Ronald Richins's brother is more specifically identified in the record or that he appeared before the Board.
FN5. There was some discrepancy among those providing letters about when horses were first kept on the Property. However, there was consensus that horses had been kept there at least since the early 1970s.