Kilgore Cos. v. Utah Cnty. Bd. of Adjustment

438 P.3d 1025

KILGORE COMPANIES, Appellee,

v.UTAH COUNTY BOARD OF ADJUSTMENT, Appellant.

No. 20170585-CA

Court of Appeals of Utah.

Filed February 7, 2019

M. Cort Griffin, Provo, and Jeffrey R. Buhman, Pleasant Grove, Attorneys for Appellant

Graden P. Jackson, Sandy, and William B. Ingram, Salt Lake City, Attorneys for Appellee

Judge Diana Hagen authored this Opinion, in which Judges Gregory K. Orme and Michele M. Christiansen Forster concurred.

Opinion

HAGEN, Judge:

¶1 Utah County appeals the district court’s decision to set aside the Utah County Board of Adjustment’s denial of Kilgore Companies' request for a conditional use permit. The Board denied Kilgore’s request to build silos that were taller than otherwise permitted, finding that the increased height would "degrade the public health, safety, or welfare" or "adversely affect local property values." We agree with the district court that there was insufficient evidence to support these findings. Because Kilgore carried its burden of proving that the proposed conditional use requirements were met, the district court correctly set aside the Board’s decision.

BACKGROUND

¶2 Kilgore operates a properly licensed and bonded asphalt batch plant (the Plant) located in a mining and grazing zone of Utah County. Operation of the Plant is a permitted use under subsection 5-7(B)(2) of the Utah County Land Use Ordinance (UCLUO). Under UCLUO subsection 5-7(G)(1), the "maximum permissible height of any structure shall be forty (40) feet" unless, among other exceptions, the Board approves a conditional use for a taller, unoccupied structure. There is no limit to the number of 40-foot or shorter unoccupied structures that may be built.

¶3 Kilgore applied for, and the Board unanimously approved, a conditional use permit for three silos with a height not to exceed 100 feet. The Board found that the requested silos met the conditional use requirements outlined in UCLUO subsection 7-20(C)(1)–(7).¹ Kilgore received and installed the three 100-foot silos, as well as two additional 65-foot silos.

¶4 Several months later, Kilgore submitted a new application (the Application), requesting a conditional use for the two additional 65-foot silos, and the Board met to consider the Application. The Board repeatedly acknowledged throughout the meeting that because silos up to 40 feet in height are a permitted use, it was considering only whether to approve the additional 25 feet.

¶5 The Board also received public comment. Among other things, citizens expressed concern regarding local property values, traffic, road safety, light pollution,² and the impact that dust and other emissions have on public health. Based on these concerns, the Board continued the meeting and requested that Kilgore provide further information at the subsequent meeting addressing how the additional 25 feet would affect local property values and the public health, safety, or welfare.

¶6 Before the next meeting, the Utah County Zoning Administrator (the Administrator) issued a written report, recommending approval of the Application. Although Kilgore had yet to submit the requested supplemental information, the Administrator found that the Application satisfied the conditional use requirements under UCLUO subsection 7-20(C). Notably, the Administrator found that the proposed conditional use would "not degrade the public health, safety, or welfare," because only the height of the silos could be considered and not the operations of the Plant, which is subject to "bonding requirements and the approved travel route and traffic plan analysis." The Administrator also found that there was "no evidence ... [that the additional height] would adversely affect local property values due to the existing uses on the property, and its general compatibility with uses on adjacent properties."

¶7 As to property values, the Administrator noted that "[o]nly the excessive height should be considered as a factor" because UCLUO subsection 7-20(C) permits the Plant’s operations and 40-foot silos at the current location. The Administrator conceded that his finding was not based on any appraisals or other professional statements regarding property values, because none had been included with the Application. But the Administrator explained that any visual impact of the conditional use would be mitigated because the closest dwelling is more than half a mile away from the proposed location and the additional silos could be painted in earth tones to match the approved 100-foot silos. This finding was further supported by a professional report later submitted by Kilgore in which an appraiser determined that the additional silos "would have [an] inconsequential visual impact on nearby properties ... based on the presence of the three 100-foot silos, which have a dominant position relative to any silos of a lesser height [that] could be placed on the site."

¶8 Utah County, on the other hand, provided testimony from residents that live near the Plant. They complained that their property values had diminished. One homeowner claimed that he purchased a house near the Plant three years earlier for $145,000, but a realtor told him that the value was "probably going to be cut in half." Other homeowners said that they would not have purchased their homes if they had known that the Plant would operate as it does. One homeowner felt that the "homes are not of value anymore."

¶9 As to the public health, safety, and welfare, Utah County explained, presumably referring to the sources of origin, that there are "six different forms of emissions that are related directly to [the Plant]: Batch mix and drum mix driers, hot oil heaters, truck load-out, silo filling, asphalt storage tanks, and yard emissions." Utah County also explained that "dust is often a product of asphalt production." Among other things, Utah County asserted that these emissions can affect "reproduction, cause birth defects, [and cause] harmful effects on the skin, bodily fluids and the immune system." Utah County "believe[d] the additional height [of the silos] could compound these effects and make them worse."

¶10 Members of the public also testified before the Board and complained that taller silos would lead to Kilgore "grinding more dirt," which could have an effect on the children with asthma. One resident living a mile away from the Plant could smell the smoke the Plant produces. Another resident claimed she had to "sleep in [her] closet for [a] year" because the light from the Plant would shine through her window. Residents also complained that some of the trucks transporting the asphalt do not stop at stop signs, the number of trucks leads to unsafe walking and biking conditions, and the trucks are damaging local roads due to the weight of the loads. But Utah County conceded, "We don't have any authority to shut down their operation, to stop trucks from moving, to stop smoke from flying. That’s beyond our authority."

¶11 In response, Kilgore explained that the additional height of the silos "doesn't change how fast [the Plant] can run," "how much material it can produce," or the "hours of operation." Even if Kilgore added "eight more 40-foot silos ... [Kilgore] still cannot increase [the number of] trucks under [its] current permit," which is 150 round-trips per day. Kilgore attributed the "dust issues" to the traffic on "the dirt roads inside the pit," not the material stored in the silos. And the Division of Air Quality inspected the Plant and informed Kilgore that it was "doing really well." Kilgore explained that, without approval of the Board, it is permitted to install as many 40-foot silos as it wanted to achieve the same result. Kilgore requested the additional height to reduce the number of silos on the property to achieve the same permitted use.

¶12 The Board denied the Application and determined that:

1. The additional height degrades the property values of adjacent properties, and

2. The increased height for additional silos would continue this degradation, and

3. That [Kilgore] has not shown that the application will not degrade the public health, safety, or welfare.

¶13 Kilgore challenged the Board’s denial by filing a petition for judicial review in district court. After reviewing the Application, the Administrator’s report, "transcripts of the meetings, and all materials submitted to and considered by the Board" in making its decision, the court determined that the Board’s decision was "not supported by substantial evidence and, therefore, is arbitrary and capricious."

¶14 First, the court concluded that "insufficient evidence was presented to the Board to distinguish between public health, safety, and welfare affected by the overall operation of [the Plant] and the conditional use requested by the Application." Second, the court concluded that there was "insufficient evidence ... presented to the Board to distinguish between property values affected by the overall operation of [the Plant] and the conditional use requested by the Application." The court therefore set aside the Board’s denial of the Application and "remand[ed] the matter to the Board with instruction to approve Kilgore’s Application."

¶15 Utah County appeals.

ISSUES AND STANDARDS OF REVIEW

¶16 Utah County contends the district court erred in setting aside the Board’s denial of the Application because Kilgore failed to carry "its burden of proof to establish by a preponderance of the evidence that the 65-foot silos do not degrade the public health, safety or welfare and do not adversely affect local property values." Relatedly, Utah County contends the district court erred in determining that the Board’s decision to deny the conditional use permit was not supported by substantial record evidence.³ "[I]n an appeal of an administrative order, we review the district court’s decision for whether it correctly determined whether the administrative decision was arbitrary and capricious or illegal." LJ Mascaro Inc. v. Herriman City , 2018...