Derian v. West Point City

Derian v. West Point City

IN THE UTAH COURT OF APPEALS
 

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Dorothy Derian dba Black Rose,

Plaintiff and Appellant,

v.

West Point City,

Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040869-CA
 

F I L E D
(May 26, 2005)
 

2005 UT App 243

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Second District, Layton Department, 040600824

The Honorable Thomas L. Kay

Attorneys: W. Andrew McCullough, Midvale, for Appellant

Felshaw King, Kaysville, for Appellee

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Before Judges Davis, Greenwood, and Thorne.

PER CURIAM:

    Dorothy Derian dba Black Rose (Derian), appeals the district court's grant of summary judgment in favor of West Point City (City). We affirm.

    Summary judgment is appropriate when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Utah R. Civ. P. 56(c). "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.'" Springville Citizens for a Better Cmty. v. City of Springville, 1999 UT 25,¶22, 979 P.2d 332 (alteration in original) (quoting Utah Code Ann. § 10-9-1001(3)(b) (1996)). See also Blackburn v. Washington City, 2004 UT App 365,¶9, 101 P.3d 391 (same). Moreover, we "review a local agency's interpretation of ordinances for correctness, but also afford some level of nonbinding deference to the interpretation advanced by the local agency." Carrier v. Salt Lake County, 2004 UT 98,¶28, 104 P.3d 1208.

    Derian argues that the City acted arbitrarily and capriciously when it refused to renew a conditional use permit and home occupation business license. In December 2003, the City informed Derian that her permit and license would not be renewed. Derian requested a hearing regarding this decision, which was held in February 2004 before the West Point City Council (City Council). After hearing testimony from each side, the City Council entered its findings and conclusions and determined that Derian failed to comply with the requirements set forth in certain City ordinances regarding home occupation. As a result, the City Council revoked Derian's conditional use permit and did not renew her business license.

    Derian subsequently filed an action with the district court, alleging that the City Council's determination was arbitrary and capricious. The district court ruled that there was substantial evidence to support the decision and dismissed the action pursuant to the City's motion for summary judgment. Derian appeals this decision.

    "'A municipality's land use decision [concerning the granting or denial of a conditional use permit] is arbitrary and capricious [only] if it is not supported by substantial evidence.'" Ralph L. Wadsworth Constr. v. West Jordan City, 2000 UT App 49,¶9, 999 P.2d 1240 (alterations in original) (quoting Springville Citizens for a Better Cmty., 1999 UT 25 at ¶24). "Substantial evidence is that quantum and quality of relevant evidence that is adequate to convince a reasonable mind to support a conclusion." Patterson v. Utah County Bd. of Adjustment, 893 P.2d 602, 604 n.6 (Utah Ct. App. 1995).

    There are two ordinances at issue here. The first, section 17-17-2(1), states in relevant part:

Uses classified as Home Occupations may be allowed by conditional use permit in all zones. The following regulations shall apply to all major home occupations.

(1) The use shall be conducted primarily within the dwelling site and carried on by the inhabitants thereof and no others.

West Point City, Utah, Rev. Ordinances § 17-17-2(1) (2000). In addition, the ordinances require that the "owner of the home occupation business must reside in the dwelling." Id. § 17-17-4(2) (2000).

    In its findings of fact, the City Council recited testimony that individuals other than Derian were living in Derian's residence, paying utility bills, and were operating the business for certain periods of time. The City Council also received evidence that Derian was absent from the residence for long periods of time throughout the year, but continued to operate her business while she was living outside of the residence. As a result, the City Council found that

Ms. Derian does not meet the Ordinance requirements that in order to carry on a Home Occupation the use shall be carried on by the "inhabitants thereof" and that the owner of the Home Occupation business must reside in the dwelling.

    Derian argues that the City Council's decision was arbitrary and capricious, primarily because the City Council improperly defined and applied the "residency" requirement set forth in section 17-17-4(2). See id. Derian argues that, even if she was away from her residence for four or five months out of the year, she may still be considered a "resident" under the plain meaning of the ordinance. We need not decide this particular argument because Derian ignores the additional requirement set forth in section 17-17-2(1) that the use "shall be conducted primarily within the dwelling site and carried on by the inhabitants thereof and no others." Id. § 17-17-2(1).

    The City Council received undisputed testimony that Derian was conducting her business outside of the residence for four to five months out of the year. This testimony came from Derian herself. In addition, there was disputed testimony that other individuals were conducting Derian's business on her behalf within the residence. Further, there was evidence that various individuals were paying Derian's utility bills and residing in and taking care of her residence while she was away. Thus, the City Council's finding that Derian did not meet the requirements of section 17-17-2(1) is supported by substantial evidence.

    Accordingly, the order of the district court granting summary judgment in favor of the City is affirmed.

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James Z. Davis, Judge

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Pamela T. Greenwood, Judge

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William A. Thorne Jr., Judge