Webber v. So. SLC

----ooOoo----

Ty Webber
and Statewide Bail Bonds,
Plaintiffs and Appellants,

v.

South Salt Lake City,
Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20001021-CA

F I L E D
June 13, 2002 2002 UT App 208 -----

Third District, Salt Lake Department
The Honorable William B. Bohling

Attorneys:
William B. Parsons III, Salt Lake City, for Appellants
H. Craig Hall, South Salt Lake, for Appellee -----

Before Judges Jackson, Greenwood, and Orme.

JACKSON, Presiding Judge:

Ty Webber and Statewide Bail Bonds (collectively "Webber") appeal the district court's denial of their motion for summary judgment and the its grant of summary judgment to South Salt Lake City (City). The court denied Webber's summary judgment motion, concluding that it lacked subject matter jurisdiction. However, the court granted City's summary judgment motion on the ground that City did not act arbitrarily or capriciously in refusing to rezone Webber's property. We affirm both rulings.

First, we address the court's jurisdictional ruling. Webber moved the district court to issue summary judgment in favor of his claims that the prior business license was grandfathered and that City should issue a new business license. The court denied that motion, citing South Salt Lake City, Ut., Ordinances § 5.02.190A (2001) (setting forth method of appealing denied business license). The court concluded that Webber had not exhausted all of the administrative remedies available to him, and thus it did not have subject matter jurisdiction over Webber's business license claims.(1)

Utah courts may not exercise subject matter jurisdiction over a plaintiff's claim if a statute or ordinance requires exhaustion of remedies and the plaintiff failed to pursue remedies available to him. See Hom v. Utah Dep't of Pub. Safety, 962 P.2d 95, 99 (Utah Ct. App. 1998). However, "[b]efore determining whether [the appeal] is barred for failure to exhaust, we must review the applicable legislation to determine whether exhaustion was required." Culbertson v. Board of County Comm'rs, 2001 Utah 108,¶32, 44 P.3d 642. The applicable ordinance states that Webber "may appeal a decision of the business license official to deny . . . a business license by filing written notice of appeal, directed to the business license hearing board . . . within ten working days of the date of the [denial]." South Salt Lake City, Ut., Ordinances § 5.02.190A (emphasis added). The ordinance provides a procedure that one "may" utilize to appeal an adverse decision, and Webber did not utilize this procedure. "As a general rule, 'parties must exhaust applicable administrative remedies as a prerequisite to seeking judicial review.'" Nebeker v. Utah State Tax Comm'n, 2001 UT 74,¶14, 34 P.3d 180 (quoting State Tax Comm'n v. Iverson, 782 P.2d 519, 524 (Utah 1989)). The word "may" in the ordinance appears discretionary and could indicate that Webber could elect to opt out of the city's appeal procedure. However, in Merrihew v. Salt Lake County Planning & Zoning Comm'n, 659 P.2d 1065 (Utah 1983), the supreme court interpreted a statute with similar language to require exhaustion of available remedies: "'Appeals to the board of adjustment may be taken by any person aggrieved . . . .'" Id. at 1066 (quoting Utah Code Ann. § 17-27-16 (1953)) (emphasis added). The Utah Supreme Court held that the appellant's "failure to exhaust his administrative remedies prevents him from seeking relief . . . from the courts," id. at 1067, even though the appeals procedure appeared discretionary.

Nothing in the record indicates that Webber attempted to utilize the administrative remedy available to him. Thus, the trial court correctly ruled that it did not have subject matter jurisdiction to hear Webber's business license claims. Accordingly, we affirm the court's denial of Webber's summary judgment motion.(2)

Finally, we address the district court's grant of summary judgment to City. City refused to grant Webber's zoning reclassification request, and Webber appealed to the district court. Upon City's motion, the district court granted summary judgment for the city on Webber's claim. We review this zoning decision pursuant to Springville Citizens for a Better Cmty. v. City of Springville, 1999 UT 25, 979 P.2d 336.

Summary judgment is appropriate only when there are no genuine issues of fact and the moving party is entitled to judgment as a matter of law. In reviewing a grant of summary judgment, we do not defer to the legal conclusions of the district court, but review them for correctness. When reviewing a municipality's land use decision, our review is limited to determining "whether . . . the decision is arbitrary, capricious, or illegal." Id. at ¶22 (quoting Utah Code Ann. § 10-9-1001(3)(b) (1996)) (internal citation omitted). When reviewing a municipality's denial of a request for a zoning reclassification, we consider whether it is "'"reasonably debatable"'" that the municipality's legislative decision serves "'"the interest of the general welfare."'" Harmon City, Inc. v. Draper City, 2000 UT App. 31,¶14, 997 P.2d 321, (quoting Smith Inv. Co. v. Sandy City, 958 P.2d 245, 252 (Utah Ct. App. 1998)); accord Bradley v. Payson City Corp., 2001 UT App. 9,¶28, 17 P.3d 1160, cert. granted, 26 P.3d 235 (Utah 2001). Webber must show that the present zoning classification "could not promote the general welfare." Harmon, 2000 UT App. at ¶29. Because we afford wide latitude to municipalities in their legislative determinations, we formulate the arbitrary or capricious standard of review using the reasonably debatable test. See id. at ¶18 ("Establishing zoning classifications reflects a legislative policy decision with which courts will not interfere except in the most extreme cases. Indeed, we have found no Utah case, nor a case from any other jurisdiction, in which a zoning classification was reversed on grounds that it was arbitrary and capricious.").

The record is replete with reasonable arguments in support of either granting or denying the zoning change. On the one hand, the city council found that the general plan required the preservation of Webber's property and adjacent properties for agricultural use. On the other hand, Webber notes an apparent disparity between the use of the land as zoned and the actual and changing uses of the land. Further, the record indicates a sharp debate among concerned citizens in both the city council meeting and planning commission meeting. Thus, we determine that it is reasonably debatable whether a new zoning classification would serve the interest of the general welfare, and that Webber has failed to show that the "present zoning of the property for [agricultural] use could not promote the general welfare." Id. at ¶29.

The trial court correctly determined that City did not act arbitrarily or capriciously in refusing to grant Webber's rezoning request. Accordingly, we affirm the trial court's grant of summary judgment to City.
 
 

______________________________
Norman H. Jackson,
Presiding Judge -----

WE CONCUR:
 
 

______________________________
Pamela T. Greenwood, Judge
 
 

______________________________
Gregory K. Orme, Judge

1. "The determination of whether a court has subject matter jurisdiction is a question of law, which we review for correctness, according no deference to the district court's determination." Beaver County v. Qwest, Inc., 2001 UT 81,¶8, 31 P.3d 1147.

2. Webber makes much of the denial letter's lack of a description of the appeals process. However, he offers no legal analysis or conclusion upon which we can grant relief. We can only infer from Webber's brief that he claims the denial letter precluded him from seeking further administrative appeal. Webber does not explicitly argue this or offer legal authority for the proposition that such preclusion would entitle him to relief. Moreover, he failed to explicitly raise this argument in the district court. Accordingly, Webber failed to preserve this issue, and we decline to consider it. See Lebaron & Assocs., Inc. v. Rebel Enters., Inc., 823 P.2d 479, 482-83 (Utah Ct. App. 1991).