December 7, 2023
2023 UT App 121 (October 5, 2023) (click for full text of opinion)
The Utah Court of Appeals reversed a district court ruling interpreting Weber County Code as requiring a particular developer to provide secondary water to subdivision lots in addition to culinary water.
After lot owners became dissatisfied with the amount of water they were allowed to use from personal wells for secondary water purposes, they sued Premier, the developer, claiming that Weber County ordinances at the time required Premier to provide the lots with separate secondary water and not just culinary water through wells. The owners brought suit under Section 17-27a-802 of the County Land Use, Development, and Management Act (CLUDMA), which allows for private action to enforce a local land use ordinance. Premier moved to dismiss on the grounds that even if the ordinance in question was applicable Premier, it would have been applied during subdivision approval, and requires an appeal from that decision and not an enforcement action. The trial court entered partial summary judgment in favor of the owners.
On appeal, the Utah Court of Appeals did not reach the appeal/enforcement issue, but simply interpreted the Weber County ordinance in question as not applicable to Premier and therefore Premier was not required to provide secondary water, as alleged by the owners. The Court held that the ordinance requires that secondary water be provided to a subdivision only “if” the water company has a filed written statement with the Weber County Planning Division of a policy restricting its water for culinary purposes only, and has filed a copy of board minutes reflecting the enactment of such a policy, neither of which the Court found to be the case with Premier.