Hodgson v. Farmington City: Appeals Court Ruling on Building Code, Summaries of Law

Download Hodgson v. Farmington City: Appeals Court Ruling on Building Code and more Summaries Law in PDF only on Docsity! 1. The Honorable Russell W. Bench and Judith M. Billings, Senior Judges, sat by special assignment as authorized by law. See generally Utah Code Jud. Admin. R. 11-201(6). 2014 UT App 188 _________________________________________________________ THE UTAH COURT OF APPEALS KIA LYN FADEL HODGSON, KRISTIN LOUISE FADEL, DOUGLAS KELLY FADEL, AND KARA FADEL BURNETT, Petitioners and Appellants, v. FARMINGTON CITY, ERIC MILLER, AND FARMINGTON CITY BOARD OF APPEALS, Respondents and Appellees. Memorandum Decision No. 20130702-CA Filed August 7, 2014 Second District Court, Farmington Department The Honorable Thomas L. Kay No. 120701027 George K. Fadel, Attorney for Appellants Jody K. Burnett, Robert C. Keller, and Timothy J. Bywater, Attorneys for Appellees SENIOR JUDGE RUSSELL W. BENCH authored this Memorandum Decision, in which JUDGE MICHELE M. CHRISTIANSEN and SENIOR JUDGE JUDITH M. BILLINGS concurred.1 BENCH, Judge: ¶1 Kia Lyn Fadel Hodgson, Kristin Louise Fadel, Douglas Kelly Fadel, and Kara Fadel Burnett (the Fadels) appeal the district court’s grant of judgment in favor of Farmington Hodgson v. Farmington City 2. The Uniform Code for the Abatement of Dangerous Buildings has been adopted and incorporated by reference into the Farmington City Municipal Code. See Farmington City, Utah, Municipal Code § 10-2-100 (2013), available at www.farmington.utah.gov/downloads/government/title10.pdf. 20130702-CA 2 2014 UT App 188 City, Eric Miller, and the Farmington City Board of Appeals (the Board) on the Fadels’ petition for review of the Board’s determination that the Fadels’ barn (the Barn) violated the Uniform Code for the Abatement of Dangerous Buildings (the UCADB). See Uniform Code for the Abatement of Dangerous Buildings (1997), available at https://law.resource.org/pub/us/code/ibr/icc.ucadb.1997.pdf. We2 affirm. ¶2 On June 27, 2012, after determining that the Barn, which was used as a sign, violated a number of UCADB provisions, Miller, a building official for Farmington City, issued a Notice and Order to Repair or Demolish Building (the Notice) to the Fadels. The Notice required that the Fadels either repair the Barn or demolish it. The Fadels filed an appeal with the Board, which affirmed Miller’s decision. The Fadels then petitioned the Second District Court for judicial review of the Board’s decision. In June 2013, the district court granted judgment in favor of Farmington City, Miller, and the Board and dismissed the Fadels’ petition. The Fadels appeal. I. Standard of Review ¶3 Before examining the Fadels’ substantive arguments, we must resolve the parties’ dispute regarding the appropriate standard of review to apply in this case. The district court relied on section 10-9a-801 of the Utah Code, which pertains specifically to land use decisions and limits the district court’s review to a determination of “whether or not the decision, ordinance, or regulation is arbitrary, capricious, or illegal.” Utah Code Ann. § 10- 9a-801(3)(a)(ii) (LexisNexis 2012). We are subject to the same Hodgson v. Farmington City 3. According to the Fadels, since the fire, the Barn has been used only as a sign, not a barn. 20130702-CA 5 2014 UT App 188 illegal. A decision “is arbitrary or capricious only if it is not supported by substantial evidence in the record” and “is illegal if it violates a law, statute, or ordinance in effect at the time the decision was made.” Fox v. Park City, 2008 UT 85, ¶ 11, 200 P.3d 182 (citations and internal quotation marks omitted). II. Applicability of the UCADB ¶8 The Fadels’ first substantive argument asserts that the Barn is a sign, not a “building or structure,” and that it is therefore not subject to the UCADB. See generally Uniform Code for the Abatement of Dangerous Buildings § 302 (1997) (providing that “any building or structure” which exhibits “any or all of the conditions or defects” described by the UCADB “shall be deemed to be a dangerous building”). The Barn has stood on the Fadels’ property since 1959 and was erected “as a dual purpose building to serve as a barn and as a base for signs.” In 1967, such signs were prohibited by the Utah Outdoor Advertising Act, but the Act contained a grandfather clause exempting nonconforming uses existing at the time the Act was passed. See Rock Manor Trust v. State Road Comm’n, 550 P.2d 205, 205 (Utah 1976). In 1972, most of the Barn was destroyed by a fire. Id. Although the Fadels were3 permitted to rebuild the Barn, they were denied a permit to replace the sign in light of the Outdoor Advertising Act. Id. The Fadels filed suit, and the Utah Supreme Court, in Rock Manor Trust v. State Road Commission, 550 P.2d 205 (Utah 1976), upheld their right to continue their nonconforming use of the Barn after it was rebuilt. Id. at 206. ¶9 The Fadels assert that the supreme court conclusively determined that the Barn is a sign and that its holding makes the issue of whether the Barn is a sign or a structure res judicata. See generally D’Aston v. Aston, 844 P.2d 345, 350 (Utah Ct. App. 1992) (“When there has been an adjudication, it becomes res judicata as Hodgson v. Farmington City 4. Apart from their res judicata argument, the Fadels provide no reasoning for their bare assertion that the Board “[wrongfully] applied the [UCADB] to the uninhabited sign structure.” 20130702-CA 6 2014 UT App 188 to those issues which were either tried and determined, or upon all issues which the party had a fair opportunity to present and have determined in the other proceeding.” (citation and internal quotation marks omitted)). However, the supreme court made no such determination. The court determined only that the Fadels’ nonconforming use of the Barn as a sign was not extinguished by the fire and continued to be permitted pursuant to the Outdoor Advertising Act’s grandfather clause. The determination that the Barn could be used as a sign does not necessarily preclude the Barn from also being classified as a structure subject to the requirements of the UCADB, and the Fadels present no argument explaining why the Barn could not be classified as both a structure and a sign. Indeed, such a loophole would contradict the purpose of the UCADB to protect occupants and the general public from the threat dangerous structures may pose to their “life, limb, health, morals, property, safety or welfare.” See Uniform Code for the Abatement of Dangerous Buildings § 102.1. The Board did not find that the Barn was not a sign or that it could not continue as a nonconforming use; it found only that the Barn was “a structure within the meaning of the [UCADB] to which the provisions of the [UCADB] apply.” Thus, we reject the Fadels’ assertion that the Barn was not subject to the UCADB.4 III. Sufficiency of the Notice ¶10 The Fadels next argue that the Notice provided by Miller was insufficient because it gave them only two options: repair the Barn or demolish it. Pursuant to section 403 of the UCADB, there are three possible options that a building official may give the owner of a structure that is declared to be dangerous: (1) repair the building in accordance with the building codes, (2) demolish the building “at the option of the building owner,” and (3) vacate and Hodgson v. Farmington City 20130702-CA 7 2014 UT App 188 secure the building against entry “[i]f the building does not constitute an immediate danger to the life, limb, property, or safety of the public.” Id. § 403 (emphasis added). The Fadels argue that the Notice should have given them the option to vacate and secure the Barn against entry rather than repair or demolish it. However, this option is available only where “the building does not constitute an immediate danger,” see id., and the Notice explained that the defects Miller had identified were such “that life, health, property or safety of the public [were] endangered.” Further, despite mandating that the Barn “be secured and maintained against entry immediately,” the Notice went on to indicate that repair or demolition was ultimately necessary. Thus, Miller clearly did not consider vacating and securing the building to be an adequate remedy in light of the danger posed. The Fadels point out that they have vacated and secured the Barn and assert that this should be sufficient to comply with the UCADB. However, the relevant question is not whether the Fadels have taken steps to vacate and secure the Barn, but whether the condition of the Barn makes it so dangerous that vacating and securing it is an inadequate remedy. The Fadels have failed to explain how the potential remedy of vacating and securing the Barn was even a viable option under the circumstances, let alone a necessary one. Thus, we see no fault in the Notice. IV. Adequacy of the Board’s Factual Findings ¶11 The Fadels next challenge the adequacy of the Board’s factual findings. The Board found that regardless of whether the Barn also constituted a sign, it was “a structure within the meaning of the [UCADB] to which the provisions of the [UCADB] apply.” It further found that Miller’s determination “that the structure meets 13 of the 18 conditions or defects” identified by section 302 of the UCADB as dangerous conditions requiring remediation, specifically “numbers 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 16, 17, and 18,” see id. § 302, was “supported by substantial evidence in the record, including both the Notice and Order and the evidence presented in the form of the testimony of Building Official Eric Miller, structural