Poppert v. Woolsey

Poppert v. Woolsey

IN THE UTAH COURT OF APPEALS
 

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Michael Poppert and Lori Poppert, individuals,

Plaintiffs and Appellants,

v.

Michael Woolsey and Heidi Woolsey, individuals;
and South Weber City, a Utah body politic,

Defendants and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040294-CA
 

F I L E D
(March 10, 2005)
 

2005 UT App 115

 

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Second District, Layton Department

The Honorable Thomas L. Kay

Attorneys: Kraig J. Powell, Park City, for Appellants

Robert L. Froerer, Ogden, and David L. Church, Salt Lake City, for Appellees

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Before Judges Davis, Jackson, and Greenwood.

JACKSON, Judge:

    Michael and Lori Poppert (Popperts) appeal from the trial court's order dismissing their claim pursuant to Utah Rule of Civil Procedure 12(b)(6) or, in the alternative, granting summary judgment in favor of the defendants. Because the acts alleged in this case cannot constitute a tort as a matter of law, we affirm.

BACKGROUND

    The Popperts and Michael and Heidi Woolsey (Woolseys) own adjoining properties in a residential subdivision. Each lot in the neighborhood is between one-quarter and one-half acre, and the Popperts' and Woolseys' lots are each less than one-third acre.

    The Woolseys' lot has an irregular shape with four straight sides and a curve. The lot is located on a cul-de-sac. It does not have any side that runs parallel to the street, as is usual for a rear lot line. Instead of a line, the portion farthest from the street is a point, and the lot comes toward the street at an acute angle from that point. The Woolseys' and Popperts' lots are adjacent on the northern side of this angle.

    The lot's irregular shape complicated the Woolseys' efforts to build a house on the lot. In that subdivision, South Weber City (City) requires that side yards have a ten-foot setback and backyards have a thirty-foot setback. As with corner lots, the City determined that the Woolseys' could designate one side the side yard and another the backyard to comply with the setback requirements.

    The City ordinances also require a residence to be less than thirty-five feet in height. In their Complaint, the Popperts alleged that the Woolseys' house was approximately forty feet tall. The Woolseys' Answer countered that the house was only thirty-two feet tall. The record contains an affidavit from the City's building inspector, stating that the Woolseys' house complies with the building codes including the height requirement.

    Ultimately, the City issued the Woolseys a building permit.

    Several months after the Woolseys began construction on the house, the Popperts brought suit against both the Woolseys and the City to enjoin construction and recover damages for nuisance. The Popperts' claim asserted that the height and location of the house would enable the residents to see over the Popperts' six- foot privacy fence and into the Popperts' yard. The Woolseys moved for dismissal under rule 12(b)(6).

    The Popperts responded to Woolseys' motion with the affidavit of Kerwin Jensen, the director of city planning for Montrose, Colorado. Jensen opined that the Woolseys' house violates the City's setback ordinances and that the rear lot line is that which is adjacent to the Popperts' property.

    The parties stipulated that the motion to dismiss could be treated as a motion for summary judgment in the alternative. The trial court granted the Woolseys' motion to dismiss, ruling that as a matter of law, a property owner can have no liability for entirely legal actions that were sanctioned by the governing body. Popperts appeal.

ISSUE AND STANDARD OF REVIEW

    On appeal, the Popperts, of course, claim that the trial court erred, but they do not claim that the court's error was related to the height of the house. Rather, the Popperts only claim that building the house within sixteen feet of their property line can legally constitute nuisance, when the City ordinances require a setback of thirty feet for a backyard. We review the trial court's order of dismissal or summary judgment for correctness. See Stokes v. VanWaggoner, 1999 UT 94,¶16, 987 P.2d 602; Bonham v. Morgan, 788 P.2d 497, 499 (Utah 1989).

ANALYSIS

    "[A] claim of private nuisance requires proof of a substantial and unreasonable interference with the private use and enjoyment of another's land. While nuisance 'is not contingent upon whether a defendant physically impinged on plaintiff's property,' it is undisputed that the nontrespassory interference must be significant . . .." Walker Drug Co. v. La Sal Oil Co., 972 P.2d 1238, 1243 (Utah 1998) (quoting Exxon Corp. v. Yarema, 516 A.2d 990, 1002 (Md. Ct. App. 1986)) (alteration, footnote, other quotations, and citations omitted). A "substantial and unreasonable interference," id., is that which causes "'significant' injury--'a harm of importance, involving more than a slight inconvenience or petty annoyance.'" Id. at 1245 (quoting Gerald W. Boston & M. Stuart Madden, Law of Environmental and Toxic Torts 59 (1994)). "The assessment of whether an injury is unreasonable requires the [court] to evaluate, among other things, the severity of the harm vis-a-vis its social value or utility." Id.

    The Popperts claim, despite the City's ratification of the site of the house, that the Woolseys committed nuisance solely by building their house too close to the Popperts' boundary. The Popperts only claim of injury is that the location of the house reduced their privacy. This alleged "interference," id. at 1243, cannot rise to the level of a private nuisance. While nuisance does not necessarily require trespass, it must involve some underlying criminal or tortious act. Moreover, the Popperts' asserted injury, reduced privacy, is no more than "a slight inconvenience or petty annoyance," id. at 1245, particularly given that they live in a developed, suburban neighborhood of relatively small lots. Thus, we hold that the acts alleged in this case cannot constitute nuisance. Accordingly, we affirm the dismissal of the complaint for injunction and damages based on nuisance.(1)

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Norman H. Jackson, Judge

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WE CONCUR:

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James Z. Davis, Judge

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Pamela T. Greenwood, Judge

1. Because we affirm the trial court's dismissal of the action, we need not address the alternative ruling for summary judgment.