Bermes v. Summit Cnty.

536 P.3d 111

Michael BERMES, Appellant,

v.SUMMIT COUNTY, Appellee.

No. 20220338-CA

Court of Appeals of Utah.

Filed August 24, 2023

Eric P. Lee and Matt J. Pugh, Attorneys for Appellant

Mitchell A. Stephens, Salt Lake City, 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.

Opinion

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.

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).

¶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 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 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, 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 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 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...