Gary Horne v. Riverton City

IN THE UTAH COURT OF APPEALS

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Gary Horne,

Petitioner and Appellant,

v.

Riverton City,

Respondent and Appellee.

MEMORANDUM DECISION

(Not For Official Publication)
 

Case No. 20020801-CA
 

F I L E D

(February 13, 2003)
 

2003 UT App 40

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Third District, Salt Lake Department

The Honorable Bruce Lubeck

Attorneys: Gary Horne, Riverton, Appellant Pro Se

David L. Church, Salt Lake City, for Appellee

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Before Judges Davis, Greenwood, and Orme.

PER CURIAM:

This is an appeal from the dismissal of Appellant's petition for judicial review of a rezoning decision. The trial court dismissed the petition as untimely. See Utah Code Ann. § 10-9-1001(2)(a) (1999).

The Riverton City Council voted to rezone the area in question on March 19, 2002. However, it is not clear from the record whether or when the ordinance was posted or published. Appellant filed his petition for judicial review on May 3, 2002. Utah Code Ann. § 10-9-1001(2)(a) provides that any party adversely affected by a land use decision can file a petition for judicial review within thirty days "after the local decision is rendered." Utah Code Ann. § 10-3-711(1) (1999) requires posting or publishing "[b]efore an ordinance may take effect." The record and transcript of the hearing on the City's motion to dismiss reveals that the trial court did not have sufficient evidence before it to determine when the ordinance was posted or published and, thus, when the time for appeal began to run. Therefore, the trial court could not properly determine whether the petition was timely filed.

The trial court's determination that the petition was untimely is reversed, and this case is remanded for such further proceedings as may now be appropriate.

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James Z. Davis, Judge

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Pamela T. Greenwood, Judge

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Gregory K. Orme, Judge