Checketts v. Providence City

April 5, 2018

Utah Court of Appeals

March 22, 2018

2018 UT App 48 (Click for text of opinion)

The Utah Court of Appeals upheld Providence City’s (“Providence” or the “City”) determination that Chris and Sandra Checketts’ home business violated several land use ordinances. In addition, the appeals court determined that the district court improperly awarded attorneys’ fees to the City under the Office of the Property Rights Ombudsman’s (the “Ombudsman’s Office”) advisory opinion process.

The Checkettses own two lots in a residential zone in Providence. They live in a residence on one lot and the other lot (the “Business Lot”) is located three lots down from their residence. They started operating their counter top business on the Business Lot and some neighbors complained to the City. Over the next few years, Providence worked with the Checkettses to bring their Business Lot into compliance with City code. During this time, the Ombudsman’s Office issued an advisory opinion relating to the use of the Business Lot at the City’s request. Ultimately, Providence gave the Checkettses notice that their use of the Business Lot violated local land use ordinances. The Checkettses appealed and the local appeal authority agreed with the City. The district court then granted summary judgment in favor of the City and awarded attorneys’ fees pursuant to UCA § 13-43-206(12) based on the advisory opinion.

On appeal, the Utah Court of Appeals affirmed the district court’s determination that the appeal authority’s decision was proper and reversed the district court’s awarding of attorneys’ fees. The appeals court upheld the district court’s determination that the appeal authority’s decision was proper because it found that the decision was supported by substantial evidence in the record and was not otherwise illegal. The appeals court reversed the award of attorneys’ fees because it found that the attorneys’ fee provision in UCA § 13-43-206(12) only applied to litigation originating in district court such as declaratory judgments or condemnation actions.