LJ Mascaro Inc. v. Herriman City

2018 UT App 127

THE UTAH COURT OF APPEALS

LJ MASCARO INC., LELAND MASCARO, AND SHERI MASCARO,
Appellants,
v.
HERRIMAN CITY,
Appellee.

Opinion
No. 20160723-CA
Filed June 21, 2018

Third District Court, Salt Lake Department
The Honorable Ryan M. Harris
No. 140903070

Jeffrey T. Colemere and Brady T. Gibbs, Attorneys
for Appellants
J. Scott Brown and Bradley M. Strassberg, Attorneys
for Appellee

JUDGE KATE A. TOOMEY authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN and DIANA HAGEN concurred.

TOOMEY, Judge:

¶1 Leland Mascaro and Sheri Mascaro (collectively, the
Mascaros) and LJ Mascaro Inc. appeal the district court’s grant of
summary judgment in favor of Herriman City, affirming
Herriman City’s denial of the Mascaros’ request for
nonconforming use status. We are asked to determine whether
the district court correctly concluded that the Herriman Land
Use Appeal Authority’s (the Appeal Authority) decision to deny
the Mascaros’ request was not arbitrary and capricious or illegal.
We conclude the Mascaros failed to provide substantial evidence
to support a prior legal use of topsoil manufacturing and
screening on their property (the Property), and therefore
Herriman City’s denial of their request was not arbitrary and
LJ Mascaro v. Herriman City

capricious or illegal. The district court did not err in granting
summary judgment in favor of Herriman City. Accordingly, we
affirm.

BACKGROUND

¶2 According to the Mascaros, they have owned the Property
since 1979, when Leland’s grandfather gave it to them as a
wedding gift. In 2009, Herriman City annexed the Property,
which previously had been within Salt Lake County’s
jurisdiction. Under the Herriman City Code, the Mascaros’ use
of the Property to perform topsoil manufacturing and screening
was classified as a conditional use, not a permitted use. 1 In 2013,
the Mascaros submitted a request to the Herriman Zoning
Administrator, seeking a determination that a nonconforming
use had been established on the Property. The Zoning
Administrator denied the request, and the Mascaros appealed
the denial to the Herriman City Planning Commission (the
Commission).

¶3 The Commission held a hearing during which the
Mascaros submitted documents and proffered testimony in an
attempt to support their claim that they had been granted

1. A permitted land use, or conforming use, is one that conforms
with the zoning ordinances and classifications of a particular
municipality or district. Cf. Conforming Use, Black’s Law
Dictionary (10th ed. 2014). A conditional use is one that does not
conform with the zoning ordinances and classifications of a
particular municipality or district but may be permitted “subject
to special controls and conditions.” See Conditional Use, Black’s
Law Dictionary (10th ed. 2014); see also Utah Code Ann.
§ 10-9a-103(5) (LexisNexis Supp. 2017). And a nonconforming
use is one “that is impermissible under current zoning
restrictions but that is allowed because the use existed lawfully
before the restrictions took effect.” Nonconforming Use, Black’s
Law Dictionary (10th ed. 2014).

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authorization for and established their use of the Property for
topsoil manufacturing and screening. The Mascaros explained
that their family has used the Property for topsoil manufacturing
and screening since the early to mid-1950s, and that they
continued this activity when they obtained ownership of the
Property. They asserted that the Property was located in Salt
Lake County and the county did not zone the Property until
1958. Then, in 1978, Riverton City attempted to annex a portion
of Salt Lake County, including the Property. The Mascaros
informed the Commission that, while the Property was within
Riverton City’s jurisdiction, topsoil manufacturing and screening
was a permitted use because the city had not enacted zoning
ordinances until sometime after 1981. But in 1981, a district court
declared Riverton City’s annexation “null and void and of no
effect.”

¶4 According to the Mascaros, while the annexation was
being challenged, they sought a separate permit from Riverton
City for a new nonconforming building on the Property. They
informed the Commission that Riverton City stated it could not
grant the permit because the annexation was being challenged.
For the same reasons, Salt Lake County did not grant the permit
and the Mascaros built the building without permission.

¶5 The Mascaros also provided the Commission a business
license application asserting that LJ Mascaro Inc. began
operating in 1988. In this application, the Mascaros sought a
business license for “trucking, sand, and gravel” operations, but
it was instead approved for “phone and mail” use based on the
zoning ordinance governing the Property. They also provided
several business licenses from the 1990s and 2000s for “Trucking
& Courier Services.” These licenses authorized a Standard
Industrial Classification designation of “421,” which included a
variety of land use operations, but topsoil manufacturing and
screening were not listed among the authorized operations.

¶6 The Mascaros also provided documents to the
Commission showing that, in 1992, residents near the Property
filed complaints with Salt Lake County, expressing their

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opinions that the Mascaros’ business, LJ Mascaro Inc., was a
“public nuisance” because “soil, gravel, and other materials”
were being transported “across [the] private lane” in the
community. Salt Lake County investigated the business, but it
decided not to bring legal action “concerning [the Mascaros’]
gravel operation . . . [because] it [did] not appear legal action
would be successful.”

¶7 In 1999, when the Salt Lake County Board of Adjustments
met to consider the Mascaros’ request to expand their
nonconforming building “to store and maintain equipment,” one
member commented, “You are in a residential area and run a
business from your home. The current zoning makes you
nonconforming. . . . Have you considered moving your business
to a more appropriate place for trucking?” The Mascaros
asserted that this comment and the approval to expand the
nonconforming building established that, at least as of 1999, Salt
Lake County recognized that they had established topsoil
manufacturing and screening as a legal use of the Property.

¶8 As further support for their request for nonconforming
use status, the Mascaros provided a letter delivered to them in
2012 from a Salt Lake County councilmember that said that
beginning “in 1992 or before, and continually thereafter, LJ
Mascaro Trucking has been treated as a non-conforming use, as
that has been your presumed status.” The councilmember
explained that the county had only a twenty-year record
retention schedule and that because it was “likely” the county
“granted” a nonconforming use to the Mascaros prior to 1992,
any record of it “may have been disposed.” The councilmember
concluded the letter by stating that he “sincerely hope[d] that
Herriman takes into consideration our account of your non-
conforming use status . . . considering LJ Mascaro Trucking has
been granted business licenses by Salt Lake County for over 30
years. Had there been unresolved zoning violations, it would be
unlikely that [the] business license would be renewed.”

¶9 Due to the large volume of documentation submitted by
the Mascaros as well as the testimony proffered, the Commission

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delayed making a decision until after it had an opportunity to
thoroughly review the record. The following month, the
Commission issued its decision in an order, concluding that the
Mascaros failed to meet their burden of proving that their topsoil
manufacturing and screening operations legally existed prior to
Herriman City’s annexation of the Property. The Commission
found that although the Mascaros had established a topsoil
manufacturing and screening business on the Property at some
time before Herriman City annexed the Property, the Mascaros
were unable to provide any documents to support that this
business had been legally established under Salt Lake County’s
jurisdiction. In addition, it found that because a court
determined that Riverton City’s annexation of the Property was
null and void and of no effect, the Property “was never legally
included in Riverton City and remained in Salt Lake County.”
The Commission concluded that, as a result, the Mascaros could
not rely on Riverton City’s lack of zoning ordinances between
1978 and 1981. The Commission therefore upheld the Zoning
Administrator’s denial of their request for nonconforming use
status.

¶10 The Mascaros appealed the Commission’s decision to the
the Appeal Authority, which held a hearing and reviewed the
record. The Appeal Authority reviewed the Commission’s
decision to determine whether it was arbitrary and capricious or
illegal. 2 It concluded that, although the record contained facts

2. The Utah Code provides that a land use appeal authority must
determine whether the land use authority correctly interpreted
and applied “the plain meaning of the land use regulations” and
whether it “interpret[ed] and appl[ied] a land use regulation to
favor a land use application unless the [relevant] land use
regulation plainly restrict[ed] the land use application.” Utah
Code Ann. § 10-9a-707(4) (LexisNexis Supp. 2017). To complete
its review of factual matters, the land use appeal authority must
determine whether the record included “substantial evidence for
each essential finding of fact.” Id. § 10-9a-707(3).

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that could support a nonconforming use, they were nonetheless
sufficient to support the Commission’s factual findings that
topsoil manufacturing and screening was not a permitted use
while the Property was within Salt Lake County’s jurisdiction.
The Appeal Authority stated that the “troubling aspect” of the
appeal was the effect of the nullified Riverton City annexation. It
explained that the Mascaros “presented unrefuted evidence that
Riverton City did not adopt any zoning regulation or zoning
map for the [Property] when it was purportedly annexed,” and if
the Property “was a part of Riverton City during this period of
time[,] it would be possible to conclude as a matter of law the . . .
use was legally established.” But because the Mascaros did not
provide any “legal authority regarding the regulatory status of
property [that] is the subject of a challenged annexation,” the
Appeal Authority relied on the court’s order that the annexation
was null and void and of no effect and concluded that the
Commission’s decision was therefore not illegal.

¶11 The Mascaros sought judicial review from the district
court of the Appeal Authority’s decision, asking it to determine
whether the denial was arbitrary and capricious or illegal. The
parties filed cross-motions for summary judgment and the
district court heard argument on them. The Mascaros argued
that the Appeal Authority wrongfully denied their application
for nonconforming use, because the use was legally established
(1) as early as the 1950s; (2) during the period when Riverton
City annexed the Property; and (3) by virtue of a special
application granted by Salt Lake County in 1999 for the
expansion of their nonconforming building.

¶12 Herriman City argued that the Appeal Authority’s
decision was not arbitrary and capricious or illegal, because the
Mascaros failed to provide any documentary evidence to
support the legal use of the Property for topsoil manufacturing
and screening. Herriman City pointed to the Mascaros’
concession that they did not have any documents “either
conclusively proving or conclusively disproving” a prior legal
use. It further argued that they could not rely on Riverton City’s

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annexation to establish a prior legal use because a court ruled
that the annexation had no legal effect.

¶13 The district court granted summary judgment for
Herriman City. Addressing the Mascaros’ three arguments that
their application for nonconforming use was wrongfully denied,
the court found: (1) the Mascaros conceded at oral argument that
they had no definitive proof that topsoil manufacturing and
screening complied with Salt Lake County zoning ordinances in
the 1950s; (2) the Mascaros failed to prove that they relied on the
Riverton City annexation in any manner that might constitute an
exception to the null and void annexation; and (3) the 1999
special application “on its face, had nothing to do with topsoil
operations.” The court concluded that the Appeal Authority did
not act arbitrarily and capriciously or illegally when it denied
the Mascaros’ request.

¶14 The Mascaros appeal.

ISSUE AND STANDARD OF REVIEW

¶15 The Mascaros contend the district court erred in granting
Herriman City’s motion for summary judgment and affirming
the Appeal Authority’s decision to uphold the denial of their
request for nonconforming use status. Summary judgment is
appropriate when “there is no genuine dispute as to any
material fact and the moving party is entitled to judgment as a
matter of law.” Utah R. Civ. P. 56(a). We review a district court’s
legal conclusions in granting summary judgment for correctness.
Davis County Solid Waste Mgmt. v. City of Bountiful, 2002 UT 60,
¶ 9, 52 P.3d 1174.

¶16 Because this case “involves a challenge to a land use
authority’s decision to deny an application for nonconforming
use,” “we review the district court’s judgment as if we were
reviewing the land use authority’s decision directly and we
afford no deference to the district court’s decision.” Fuller v.
Springville City, 2015 UT App 177, ¶ 11, 355 P.3d 1063 (quotation

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simplified). In other words, “in [an] appeal of an administrative
order, we review the [district] court’s decision” for whether it
“correctly determined whether the administrative decision was
arbitrary [and] capricious[] or illegal.” McElhaney v. City of Moab,
2017 UT 65, ¶ 26. We will not disturb the decision of a land use
authority or an appeal authority unless the decision is arbitrary
and capricious or illegal. Utah Code Ann. § 10-9a-801(3)(b)–(c)(i)
(LexisNexis Supp. 2017).

ANALYSIS

I. Nonconforming Use

¶17 Utah Code section 10-9a-103 defines “nonconforming
use” as a use of land that “(a) legally existed before its current
land use designation; (b) has been maintained continuously
since the time the land use ordinance governing the land
changed; and (c) because of one or more subsequent land use
ordinance changes, does not conform to the regulations that now
govern the use of the land.” Utah Code Ann. § 10-9a-103(37)
(LexisNexis Supp. 2017). 3 It is undisputed that the Mascaros
have continuously used the Property for topsoil manufacturing
and screening and that this use does not conform with Herriman
City zoning regulations. We therefore must determine whether
the district court correctly determined that the Appeal Authority
did not act arbitrarily and capriciously or illegally when it
denied their request for nonconforming use status based on the

3. “[B]ecause zoning ordinances are in derogation of a property
owner’s common-law right to unrestricted use of his or her
property, provisions therein restricting property uses should be
strictly construed, and provisions permitting property uses
should be liberally construed in favor of the property owner.”
Patterson v. Utah County Board of Adjustment, 893 P.2d 602, 606
(Utah Ct. App. 1995).

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Mascaros’ failure to establish that their use of the Property
legally existed prior to Herriman City’s annexation.

¶18 The Mascaros contend that the Appeal Authority’s
decision was arbitrary and capricious because it was based on
the Commission’s findings of fact, which “ignored substantial
record facts.” They further contend the decision was illegal,
because they had established that the use was lawful while it
was under the jurisdiction of Riverton City and of Salt Lake
County. We address each contention in turn.

A. The Decision to Deny the Nonconforming Use Status Was
Not Arbitrary and Capricious.

¶19 First, the Mascaros argue that the decision to deny their
request was arbitrary and capricious because it went against
“substantial record facts.” We disagree.

¶20 The Utah Code provides that unless it is arbitrary and
capricious or illegal, the decision of a land use authority or an
appeal authority shall be presumed valid and shall be upheld.
Utah Code Ann. § 10-9a-801(3)(b). A decision is arbitrary and
capricious when it is not supported by substantial evidence in
the record. Id. § 10-9a-801(c)(i). To determine whether substantial
evidence supports the Appeal Authority’s decision, we consider
all of the evidence in the record but do not “weigh the evidence
anew or substitute our judgment for that of the municipality.”
Springville Citizens for a Better Cmty. v. City of Springville, 1999 UT
25, ¶ 24, 979 P.2d 332. We will not disturb the Appeal
Authority’s decision so long as “a reasonable mind could reach
the same conclusion.” Id.

¶21 The Mascaros take issue with a number of the
Commission’s findings of fact, arguing that they do not take into
consideration all of the evidence presented to it. 4 We need not

4. Herriman City argues that the Mascaros failed to properly
preserve their challenges to the Commission’s factual findings
(continued…)

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address each of the findings the Mascaros take issue with,
because their arguments boil down to asking us to reweigh the
evidence presented. 5 For example, the Commission found that
they never applied for or received official permits or licensing
from Salt Lake County to engage in topsoil manufacturing and
screening. They now argue, “While there was no documentary
evidence of an actual application for conditional or permitted
use for soil manufacturing on the Property, such applications or
permits were unnecessary [and the] Commission[] . . . ignore[d]
substantial and relevant evidence demonstrating that [the]
Mascaros were awarded non-conforming status for topsoil
manufacturing.” The Mascaros do not cite any legal authority or
identify anything in the record to support their assertion that
“such applications or permits were unnecessary.” And although
the Mascaros were able to point to some additional evidence not
included in the Commission’s findings that they had engaged in
topsoil manufacturing and screening, they have not pointed to
any evidence that this activity was a legal use of the Property.

(…continued)
because they did not raise the issues before the Appeal
Authority. See Rosen v. Saratoga Springs City, 2012 UT App 291,
¶ 31, 288 P.3d 606 (explaining that, to preserve an issue, it must
be presented to the agency in such a way that it “could have
been resolved in the administrative setting” (quotation
simplified)). Herriman City asserts that only two of the findings
“were even mentioned” at the hearing before the Appeal
Authority. We disagree. Our review of the transcript of the
Appeal Authority’s hearing shows that the Mascaros raised the
factual findings they challenge on appeal point by point. We
therefore address the merits of the Mascaros’ challenges to the
factual findings.

5. We note that the Mascaros submitted to the Commission for
its review more than 3,250 pages of documents that they concede
neither “conclusively prov[ed] [nor] conclusively disprov[ed]” a
prior legal use.

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¶22 At best, the Mascaros point to minutes from a meeting
before Herriman City, discussing their request for a “conditional
use” of topsoil manufacturing and screening, during which
Herriman City acknowledged that Salt Lake County approved
one of the Mascaros’ applications. The meeting minutes state
that Salt Lake County gave LJ Mascaro Inc. an approval for
“phone and mail” business operations from the Mascaros’
house, and that, “[o]ver time,” the Mascaros began using the
Property “to store soil and trucks, which violated the terms of
the [original approval].” The minutes continue that the Mascaros
later applied for nonconforming use status under a county
provision that “allowed illegal uses to be deemed
‘nonconforming’ if they had been in existence with no history of
complaint” and that Salt Lake County eventually approved that
application. But Herriman City’s minutes further state that, even
after the approved nonconforming use status, the Mascaros
“continued to expand and operate outside of their conditions of
approval,” which meant that “they were not in compliance”
when Herriman City annexed the Property.

¶23 Although these minutes show that Herriman City
acknowledged that Salt Lake County might have approved a
nonconforming use, the Mascaros have failed to provide the
application or any documentation from the county that shows
which nonconforming use, if any, was “granted.” Although it
could have been granted for “stor[ing] soil and trucks,” it could
also have been for anything other than “phone and mail”
services. In addition, the Mascaros have not explained how
storing soil is equivalent to topsoil manufacturing and screening
and they have failed to provide any supporting documents that
would have clarified the ambiguity in the Herriman City
meeting minutes. Because we give deference to the Appeal
Authority’s decision, we cannot say that it acted arbitrarily and
capriciously when it did not give substantial weight to the
Herriman City meeting minutes.

¶24 The Mascaros have repeatedly conceded that they were
unable to provide evidence—other than through their own

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testimony—that Salt Lake County granted them nonconforming
use status for the purpose of topsoil manufacturing and
screening. They admit on appeal that the Salt Lake County
councilmember’s letter, which stated that the county had
“likely . . . granted” a nonconforming use status, did “not
precisely identif[y]” the “nature of the [nonconforming] use.”
When the district court asked if they could “nail down when [the
Mascaros] started [the] topsoil operation and when the zoning
ordinances went into effect,” their counsel responded, “I cannot
do [that] with definition today, and it’s not for lack of trying.”
And before the Commission, the Mascaros conceded that they
did not have any evidence “either conclusively proving or
conclusively disproving” a prior legal use. These concessions,
among many others throughout the record, support the district
court’s determination that the Appeal Authority’s decision was
not arbitrary and capricious.

¶25 We agree with the Commission’s finding that the
Mascaros “provided no evidence that they had received any
land use approval[] or business license permit for a soil
manufacturing and screening operation on the property from
any of the respective jurisdictions.” We conclude that substantial
evidence in the record supported the Commission’s conclusion
that the nonconforming use was not legally established prior to
Herriman City’s annexation of the Property. The Appeal
Authority’s decision to uphold the denial of the nonconforming
use status was therefore not arbitrary and capricious, and the
district court correctly reached this conclusion.

B. The Decision to Deny the Nonconforming Use Status Was
Not Illegal.

¶26 The Mascaros contend the Appeal Authority’s “strict
application” of a court order rendering the Riverton City
annexation “null and void and of no effect” was illegal because
they relied on the annexation to conduct their topsoil
manufacturing and screening operation. They further contend
that the Appeal Authority’s determination that the use was not

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legally established when under Salt Lake County’s jurisdiction
was illegal. A decision is illegal if it is “based on an incorrect
interpretation of a land use regulation” or “contrary to law.”
Utah Code Ann. § 10-9a-801(c)(ii) (LexisNexis Supp. 2017).

¶27 To begin with, Herriman City argues that the Mascaros
failed to preserve the argument that they relied on Riverton
City’s annexation and we therefore should not address the
merits of this argument. We agree. To preserve an issue for
appeal, the issue must have been presented in such a way that a
lower tribunal had the opportunity to rule on it. Rosen v. Saratoga
Springs City, 2012 UT App 291, ¶ 31, 288 P.3d 606. “The
preservation rule applies in agency appeals when the issue
raised on appeal could have been resolved in the administrative
setting.” Id. (quotation simplified). Here, the Mascaros stated in
the hearing before the Appeal Authority that the Property was
under the jurisdiction of Riverton City between 1978–1981; that
the city was providing services to the Property; and “for all
intents and purposes, as . . . normal citizen[s], we were in
Riverton City.” But, as articulated by the Appeal Authority in its
order, the Mascaros did not provide any “legal authority
regarding the regulatory status of property which is the subject
of a challenged annexation.” The Mascaros therefore failed to
provide the Appeal Authority the opportunity to resolve
whether an exception applied to a court’s determination that a
city’s annexation is null and void and of no effect. See id.

¶28 The Mascaros also argue that their topsoil manufacturing
and screening use was legally established while under Salt Lake
County’s jurisdiction and that therefore the Appeal Authority’s
decision was illegal. But, as discussed above, they have failed to
point us to anything in the record that would support their
assertion that Salt Lake County approved this particular use of
the Property at any point or that the Property was used for such
purposes prior to the county promulgating zoning ordinances.
See supra ¶¶ 21–25. Again, the Mascaros state that the county’s
grant of nonconforming use status “is also bolstered by Salt Lake
County’s issuance of various building permits, business permits,

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the 1999 special exception to expand a nonconforming building
on [the Property], and [the Property] tax notices.” (Emphases
added.) But, as with the business licenses, the building permits
did not include information regarding topsoil manufacturing or
screening. And the business applications were for trucking and
courier services or “mail and phone” services. The Mascaros also
fail to identify any improper interpretation or misapplication of
the law by the Commission or the Appeal Authority. See Utah
Code Ann. § 10-9a-801(c)(ii).

¶29 We therefore conclude that the district court correctly
determined that the Appeal Authority’s decision was not illegal.
The Mascaros failed to prove that their use of the Property for
topsoil manufacturing and screening was legally established
under either Riverton City or Salt Lake County jurisdiction and
the Appeal Authority properly upheld the Commission’s denial
of the request for nonconforming use status.

CONCLUSION

¶30 We conclude that the Appeal Authority did not act
arbitrarily and capriciously when it upheld the Commission’s
denial of the Mascaros’ request for nonconforming use status for
topsoil manufacturing and screening, because the Mascaros
failed to provide substantial evidence to support that this was a
prior legal use of the Property. Similarly, we conclude the
Appeal Authority’s decision was not illegal. The Mascaros failed
to show that the use was legally established when the Property
was under Salt Lake County’s jurisdiction or that an exception
applied to a district court’s determination that Riverton City’s
annexation was null and void and of no effect. We therefore
affirm the district court’s grant of summary judgment in favor of
Herriman City.

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