Johnson v. Weber County

2013 UT App 121
_________________________________________________________

THE UTAH COURT OF APPEALS

SUSAN D. JOHNSON, CHRIS L. JOHNSON, CHRISTINA GRANATH, AND
LONNIE CASSIDY VERHAAL,
Plaintiffs and Appellants,
v.
WEBER COUNTY AND GREEN VALLEY ACADEMY,
Defendants and Appellees.

Opinion
No. 20120368‐CA
Filed May 16, 2013

Second District, Ogden Department
The Honorable Scott M. Hadley
No. 110902718

John M. Webster, Attorney for Appellants
Bruce R. Baird, Attorney for Appellee Green Valley
Academy
Christopher F. Allred, Attorney for Appellee
Weber County

JUDGE JAMES Z. DAVIS authored this Opinion, in which JUDGES
GREGORY K. ORME and CAROLYN B. MCHUGH concurred.

DAVIS, Judge:

¶1 Susan D. Johnson, Chris L. Johnson, Christina Granath, and
Lonnie Cassidy Verhaal (the Residents) appeal the grant of
summary judgment in favor of Weber County (the County). We
affirm.

BACKGROUND

¶2 This is an appeal from the district court’s review of the
Weber County Board of Adjustment’s (the BOA) decision. The
Johnson v. Weber County

Green Valley Academy Private Education Institution (Green
Valley) submitted a design review application to the Ogden Valley
Planning Commission seeking to establish a “‘private, non‐public
specialty school serving students with specific needs in the areas of
learning, depression, anxiety, and pervasive developmental
problems,’” to be located within an “Agricultural Valley 3 (AV‐3)
Zone” in Huntsville, Utah. Green Valley explained that its
educational program would be fully accredited and structured in
accordance with the guidelines for public high school graduation
and that “[t]he main activity” at the academy would be “educating
and instructing students (46.5 hours per week).” Green Valley
described the other services offered at the academy, such as
“[c]ounseling and therapy sessions” and on‐site lodging, as
“ancillary to the educational program.” The Planning Commission
approved the design review application, concluding that Green
Valley constitutes a “school” under the Weber County Zoning
Ordinance (the Ordinance) and is therefore a permitted use within
the proposed AV‐3 Zone.

¶3 The Residents appealed the Planning Commission’s decision
to the BOA, arguing that the Planning Commission “failed to
support its decision to call [Green Valley’s] proposed use a school
with substantial evidence and illegally approved the use as a
school instead of as a residential treatment center according to the
strict requirements of the Zoning Ordinance.” The BOA disagreed
with the Residents and upheld the Planning Commission’s
approval of Green Valley’s design application.

¶4 The Residents then filed a Petition for Review and
Declaratory and Injunctive Relief with the district court, seeking de
novo review of the BOA’s determination. The Residents argued
that the BOA’s decision was illegal and arbitrary and capricious
because

[t]he County, the [Planning] Commission and the
[BOA] failed to consider each of the factors required
[by the Ordinance] for Design Review approval,

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made the approval final even though necessary
reports and third party approvals were lacking, and
evaluated only whether the Green Valley Academy
met the definition of a “school” as set forth in the
Uniform Land Use Ordinance of Weber County and
ignored other zoning requirements and limitations
including, but not limited to, the purpose and intent
of the AV‐3 zone.

¶5 The district court denied the Residents’ petition and granted
Green Valley’s motion for summary judgment, which was joined
by Weber County. The Residents now appeal.

ISSUE AND STANDARD OF REVIEW

¶6 The Residents argue that the district court erred in granting
Green Valley’s motion for summary judgment. “We review the
district court’s grant of a motion for summary judgment for
correctness.” Overstock.com, Inc. v. SmartBargains, Inc., 2008 UT 55,
¶ 12, 192 P.3d 858.

ANALYSIS

¶7 The Residents contend that the BOA’s decision was
arbitrary, capricious, illegal, and not supported by substantial
evidence, thereby rendering summary judgment in favor of Green
Valley inappropriate. “A final decision of a land use authority or
an appeal authority is valid if the decision is supported by
substantial evidence in the record and is not arbitrary, capricious,
or illegal.” Utah Code Ann. § 17‐27a‐801(3)(c) (LexisNexis 2009). “A
determination of illegality requires a determination that the
decision, ordinance, or regulation violates a law, statute, or
ordinance in effect at the time the decision was made or the
ordinance or regulation adopted.” Id. § 17‐27a‐801(3)(d).

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¶8 The Residents contend that the BOA’s decision was illegal
and arbitrary and capricious because it was made in violation of
the Ordinance and was not supported by substantial evidence.
Though the Residents “concede that the instruction and education”
aspect of Green Valley “would, in fact, qualify as a school . . . under
Weber County’s Ordinance and under the Crist [v. Bishop, 520 P.2d
196 (Utah 1974)] decision,” they argue that Green Valley
nonetheless fails to qualify as a school because its “residential
component . . . [is] otherwise not” permitted in the AV‐3 Zone. The
Residents assert that Green Valley’s main use is as a residence for
troubled youth and that by calling it a school, Green Valley
attempts to make “an end run around the [O]rdinance.” In other
words, the Residents argue that the school is not enough of a
school. We disagree.

¶9 The Ordinance defines a school as follows:

A public elementary or secondary school, charter,
seminary, parochial school, or private educational
institution having a curriculum similar to that
ordinarily given in grades one through twelve in the
public school system. The term “education
institution” for the purpose of this Ordinance does
not include post high school educational facilities.

Weber County, Utah, Zoning Ordinance, § 1‐6, available at
http://www.co.weber.ut.us/mediawiki/index.php/General_Provi
sions_%26_Definitions (last visited May 13, 2013). The term
“schools” was also defined in Crist, in which the supreme court
was asked to construe a zoning ordinance that did not define that
term. See Crist, 520 P.2d at 197. The Crist court noted “that it is not
the name used that determines the character of an institution[;] . . .
this is to be ascertained from what it actually consists of and its
method of operation.” Id. The court interpreted “schools” to mean,
“institutions for education and training[, t]he requisites of [which]
. . . are: some physical facility, teachers, a curriculum for study or

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training, and students who are the objective thereof.” Id. at 198–99
(footnote omitted).

¶10 The defendants in Crist argued that the plaintiffs’ facility
was not a school but a juvenile detention and correctional
institution in light of the facility’s mission to serve “maladjusted
boys with mental or emotional problems, who need detention and
control in connection with their education and training.” Id. at 197.
Specifically, the “maladjusted boys” would receive “residential
treatment with a therapeutically designed round‐the‐clock living
program including medical care, psychiatry, and professional
discipline,” i.e., the use of forcible restraints like chains and
manacles. Id. (internal quotation marks omitted). The supreme
court rejected the defendants’ argument and affirmed the district
court’s characterization of the facility as a school, stating,

If the[ aforementioned] requisites are met, the status
of the institution is not changed because of variation
in methods of teaching or of training, or of discipline
or control. These are all present in greater or lesser
degree in practically all schools; and they may vary
greatly without preventing one from being properly
so characterized.

Id. at 199.

¶11 The Residents argue that reliance on Crist is inappropriate
because the Ordinance already contains a definition of “school”
and because the facts are distinguishable in that the facility at issue
in Crist was to be located in an existing building. Green Valley
contends that this case is basically a repeat of Crist in that the main
issue is what constitutes a school. To affirm its status as a school,
Green Valley, employing a familiar analogy, explains that all this
court needs to do is apply the “duck test,” meaning if its design
application “looks like a duck [and] it quacks like a duck, it’s a
school.” The duck here is the definition of “school,” and according
to Green Valley, the definition is the same in the Ordinance and

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Crist. Thus, Green Valley concludes its argument by stating, “[A]ll
[we are] here to say is quack.”

¶12 We are not persuaded that the differences the Residents
focus on in Crist render that case inapplicable. Crist injected
common sense into the zoning ordinance at issue in that case by
recognizing that “school” is an umbrella term, each iteration of
which need not be specifically identified in an ordinance to be
encompassed within its meaning so long as the core “requisites are
met.” Id. at 198–99. Here, the parties do not dispute that those
requisites—that the proposed “private educational institution
hav[e] a curriculum similar to that ordinarily given in grades one
through twelve in the public school system,” and that it not be a
post high school educational institution—are met by Green Valley’s
proposal. Thus, Green Valley, like the facility in Crist, is rightfully
characterized as a school even though it also offers on‐site housing
and therapeutic services.

¶13 The Residents next contend that specific language in other
parts of the Ordinance unequivocally prove that Green Valley’s
proposed school is not a permitted use in the AV‐3 Zone.
Specifically, the Residents explain that because the Ordinance
states, “[U]ses not listed are not allowed,” see Weber County, Utah,
Zoning Ordinance, § 1‐3, available at http://www.co.weber.ut.us/
mediawiki/index.php/General_Provisions_%26_Definitions (last
visited May 13, 2013), and boarding schools are not a listed use in
the AV‐3 Zone, it necessarily follows that boarding schools, like
Green Valley, are not allowed in that zone, see generally id. § 5B‐2 to
‐4. Further, they contend that because the Ordinance specifically
permits boarding schools in other zones, had such a use been
intended for the AV‐3 Zone it would have been explicitly
enumerated in the Ordinance. The Residents also cite the stated
purpose of the AV‐3 Zone—“to direct orderly low‐density
residential development in a continuing rural environment”—and
the fact that the residential uses permitted in the zone are limited
to single family homes and multi‐unit housing facilities with eight
or fewer residents, as additional proof that Green Valley’s housing

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facility, which the Residents describe as a dormitory large enough
for thirty‐six students and up to sixteen staff members, does not
belong in the AV‐3 Zone. See generally id. § 5B‐1 to ‐4.

¶14 However, as stated above, because schools are a type of
permitted use in the AV‐3 Zone and Green Valley meets the
definition of “school” provided in the Ordinance, the fact that
Green Valley also includes amenities and programs not specifically
identified in the Ordinance does not, under the facts and
circumstances of this case, mean it no longer qualifies as a school.
As observed in Crist, despite variations in teaching style, discipline,
or amenities available for students, certain requisites are “present
in greater or lesser degree in practically all schools; and they may
vary greatly without preventing one from being properly so
characterized.” Crist v. Bishop, 520 P.2d 196, 199 (Utah 1974). Thus,
while the Ordinance does contain the limitation that “uses not
listed are not allowed,” we do not interpret that to mean that every
type of school that is actually permitted by the Ordinance must be
enumerated, rather than evaluated on a case‐by‐case basis in
accordance with the definition provided in the Ordinance.
Additionally, the Residents’ assertion that boarding schools are
permitted in other zones is incorrect; no part of the Ordinance
specifically provides for boarding schools, though boarding houses
are permitted in different zones. Likewise, the multi‐unit
residential facilities permitted in the AV‐3 Zone are not all limited
to eight residents; convalescent or rest homes are a conditional use
allowed in the zone, and the Ordinance does not explicitly cap the
number of people such facilities can house.1 In other words, it is not
clear how large the Green Valley housing facility would have to be

1. Furthermore, Green Valley does not explicitly state in its design
application that it seeks to provide on‐site housing for up to thirty‐
six students and sixteen staff members; the Residents appear to
pull these numbers from Green Valley’s prior application that was
subsequently withdrawn.

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for the district court to necessarily conclude that it is not in keeping
with the purpose of the AV‐3 Zone.

¶15 Accordingly, the BOA’s decision upholding the Planning
Commission’s grant of Green Valley’s design application was not
in contravention of the Ordinance.2 Therefore, the district court
correctly granted summary judgment to Green Valley. We affirm.3

2. The Residents also assert that their due process rights were
violated on two different grounds. We do not address this issue
because it was not preserved. See Harper v. Evans, 2008 UT App 165,
¶ 16, 185 P.3d 573 (“[I]n order to preserve an issue for appeal[,] the
issue must be presented to the trial court in such a way that the
trial court has an opportunity to rule on that issue.” (alterations in
original) (citation and internal quotation marks omitted)). We also
do not address the Residents’ contentions that Green Valley’s
primary use is as a residence, not a school, because it is not
adequately briefed. Their arguments on this point amount to a
series of conclusory statements; they do not offer any supporting
evidence or explanation as to how they reached this conclusion. See
Utah R. App. P. 24(a)(9) (“The argument shall contain the
contentions and reasons of the appellant with respect to the issues
presented . . . with citations to the authorities, statutes, and parts of
the record relied on.”). Likewise, our inability to determine if the
Residents have even raised a challenge to the Planning
Commission’s adherence to Chapter 36‐4 of the Ordinance is a
sufficient basis to determine that the issue was not adequately
briefed.

3. Because we do not consider the Residents’ appeal to be frivolous,
we deny Green Valley’s request for rule 33 sanctions. See generally
Utah R. App. P. 33(a) (“[I]f the court determines that a motion
made or appeal taken under these rules is either frivolous or for
delay, it shall award just damages, which may include single or
double costs, . . . and/or reasonable attorney fees, to the prevailing
party.”); Porco v. Porco, 752 P.2d 365, 369 (Utah Ct. App. 1988)
(“[S]anctions for frivolous appeals should only be applied in
(continued...)

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3. (...continued)
egregious cases, lest there be an improper chilling of the right to
appeal erroneous lower court decisions. However, sanctions
should be imposed when an appeal is obviously without any merit
and has been taken with no reasonable likelihood of prevailing,
and results in delayed implementation of the judgment of the
lower court; increased costs of litigation; and dissipation of the
time and resources of the . . . [c]ourt.” (citation and internal
quotation marks omitted)).

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