Tooele County v. Erda Community Association

2022 UT App 123

THE UTAH COURT OF APPEALS

TOOELE COUNTY,
Appellant,
v.
ERDA COMMUNITY ASSOCIATION,
Appellee.

Opinion
No. 20210711-CA
Filed November 10, 2022

Third District Court, Tooele Department
The Honorable Dianna Gibson
No. 210300358

Robert C. Keller, Danica N. Cepernich, and
Nathanael J. Mitchell, Attorneys for Appellant
Janet M. Conway, Attorney for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and RYAN D. TENNEY concurred.

HARRIS, Judge:

¶1 In 2019, the Tooele County Planning Commission (the
Commission) gave its “conceptual approval” to a developer’s
plans to develop two parcels of land, an action that drew spirited
resistance from certain members of the community. In particular,
over one hundred individual residents of the then town of Erda 1
filed a joint administrative appeal challenging the Commission’s

1. Erda is now a city, having completed the incorporation process
in January 2022. At the time the administrative appeals were filed,
though, Erda was still officially a town. See https://en.wikipedia.
org/wiki/Erda,_Utah [https://perma.cc/8B4T-YJ6G].
Tooele County v. Erda Community Assoc.

action. The Tooele County Council (the Council), acting as the
administrative appeal authority, rejected those appeals.

¶2 Thereafter, the Erda Community Association (the
Association) filed a petition in district court seeking judicial
review of the Council’s decision. Some of the individuals who had
participated in the joint administrative appeal of the
Commission’s action are members of the Association, but the
Association had not itself filed any such appeal; recognizing this,
Tooele County (the County) asked the district court to dismiss the
Association’s petition for failure to exhaust administrative
remedies. The court agreed with the County that the Association
had failed to exhaust its administrative remedies, but nevertheless
denied the County’s motion, determining that at least one
exception to the exhaustion requirement applied here. We
granted the County leave to file an interlocutory appeal from the
district court’s order denying its motion to dismiss, and on the
merits of that appeal, we agree with the County: the Association
failed to exhaust its administrative remedies and no exception to
the exhaustion requirement applies. On that basis, we reverse.

BACKGROUND 2

¶3 The Association describes itself as “a member-based
community non-profit organization formed to preserve rural

2. “When reviewing a district court’s denial of a . . . motion to
dismiss, we accept the factual allegations in the complaint as true
and draw all reasonable inferences from those facts in a light most
favorable to” the plaintiff or petitioner. First Equity Fed., Inc. v.
Phillips Dev., LC, 2002 UT 56, ¶ 3, 52 P.3d 1137 (quotation
simplified). Accordingly, in considering the County’s appeal, and
in reciting the facts herein, we accept the factual allegations in the
Association’s petition as true and draw reasonable inferences
from those facts in a light most favorable to the Association.

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property in Erda, and to support . . . efforts to incorporate the City
of Erda.” Its “members are residents of” Erda, a municipality
located in Tooele County. Among other things, the Association
“brings legal actions to challenge local municipalities” when it
perceives that “their actions do not comply with the law and cause
irreparable harm to Erda’s rural and agricultural lifestyle.”

¶4 In recent years, a developer (Developer) has taken steps to
try to develop two parcels of land in Tooele County.3 In
furtherance of those efforts, Developer filed two conditional use
permit applications with the Commission. In December 2019,
after holding a public hearing, the Commission gave its
“conceptual approval” to both applications.

¶5 The following month, the County received one
administrative appeal regarding each of the Commission’s two
“conceptual approvals.” In each appeal, the identity of the
appellants was identical: some 125 residents of Erda signed them,
and did so in their individual capacities. No corporate or business
entity—including the Association—was listed as a party to either
of these appeals. But at least some of the individual appellants
were (and apparently still are) members of the Association.

¶6 Later, the Council—acting as the County’s administrative
appeal authority—held a public meeting to consider the residents’
administrative appeals. After hearing arguments from the

3. Among other steps, Developer had previously obtained County
approval to rezone these two parcels. However, after a group of
local residents obtained enough unverified petition signatures to
potentially place a referendum regarding the propriety of that
rezone on the 2020 election ballot, but before those signatures
were officially verified, the County repealed the rezone at
Developer’s request.

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appellants and from Developer, a majority of the Council denied
both appeals on their merits, with one member dissenting.

¶7 Shortly thereafter, the Association—on its own—filed a
petition in district court seeking review of the Council’s decision.
No other individual or entity joined the Association’s petition,
and no other individual or entity separately sought judicial
review. In its petition, as amended, the Association stated two
“causes of action.” First, it invoked Utah’s Land Use Development
and Management Act (LUDMA), as applicable to counties. See
Utah Code Ann. §§ 17-27a-101 to -1104 (LexisNexis 2017 & Supp.
2022). Pursuant to LUDMA, a county’s land use decisions may be
challenged in court, but the court will uphold such decisions
unless they are either (a) “arbitrary and capricious” or (b)
“illegal.” See id. § 17-27a-801(3)(b) (Supp. 2022). In its first cause of
action, the Association asserted that the Council’s decision was
illegal because it espoused “an erroneous interpretation of the
law” regarding both state statutes and county ordinances, and
was therefore “outside” the County’s “authority or jurisdiction.”
Second, the Association made a claim for declaratory relief, asking
for a judgment “declaring that [the County’s] conduct is in
violation of the Utah Constitution, Utah statutes, and Tooele
County land use ordinances.”

¶8 The County responded by filing a motion to dismiss the
Association’s petition, asserting that the district court lacked
subject matter jurisdiction over the petition because the
Association had failed to exhaust its administrative remedies, a
requirement imposed by LUDMA. See id. § 17-27a-801(1). The
Association had not filed its own administrative appeal and, as
the County saw it, the Association could not satisfy the statutory
exhaustion requirement by pointing to the fact that some of its
members had participated in appeals individually. And as for the
Association’s declaratory judgment claim, the County argued
that, because that claim sought the same sort of relief—reversal of
the conceptual approvals—as its LUDMA claim did, the

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Association was required to comply with LUDMA’s jurisdictional
prerequisites to assert that claim as well.

¶9 The Association opposed the County’s motion, making
two general arguments in response. It first maintained that, under
the doctrine of associational standing, it was entitled to rely on the
appeals in which some of its members had participated, and need
not have separately filed its own appeal in order to have
exhausted its administrative remedies. Second, and in the
alternative, the Association argued that it should be excused from
any exhaustion requirement due to the allegedly “unusual
circumstances” of this case, which the Association asserted
militated in favor of the application of one or more judicially
created exceptions to the exhaustion requirement. Specifically, the
Association contended that “barring judicial review in this case
on these grounds [would] result in the likelihood of injustice”;
that “exhaustion would serve no purpose, or [was] futile, given
that the members fully exhausted the administrative process with
a futile result”; and finally, that the County had “acted outside of
the scope of its defined, statutory authority.” But the Association’s
arguments regarding “unusual circumstances” were not well-
developed; its arguments regarding the “outside the scope”
exception, for instance, were limited to two sentences stating that
“this case centers on whether [the Commission] has acted outside
the scope of its defined, statutory authority,” and stating that the
Association, in its petition, was asking the court “to determine
questions of construction or validity arising under the statutes
and ordinances at issue in this case.” And at oral argument on the
County’s motion, the Association made no mention of any
exceptions to the exhaustion requirement, instead focusing on its
argument that it had actually satisfied the exhaustion requirement
through the appeal filed by some of its members.

¶10 After briefing and oral argument, the district court denied
the County’s motion. The court announced its decision in an oral
ruling, which was later memorialized in a written order. The

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court agreed with the County regarding the Association’s
“associational standing” argument, explaining in its oral ruling
that “[a]ssociational standing and the requirement to exhaust
administrative remedies are two different and distinct legal
concepts.” The court concluded that, in order to satisfy the
exhaustion requirement, the Association needed to have filed its
own administrative appeal, and that the doctrine of associational
standing could not “be used to satisfy” the exhaustion
requirement when no such appeal had been filed.

¶11 On the question of whether any exceptions to the
exhaustion requirement applied, however, the court sided with
the Association and concluded that “at least one exception”
would apply if the facts as alleged by the Association turned out
to be true. In particular, the court determined that the Association
had “established at this stage” that the exception for cases in
which municipal authorities had acted “outside the scope of
[their] defined statutory authority” might apply in this case. In
reaching this determination, the court made reference to the
Association’s allegation that the Council had “violated Tooele
County ordinances and [LUDMA], and in essence acted outside
its statutory authority by” approving Developer’s applications.
The court then concluded by stating that, “[b]ased on these facts,
[the Association has] successfully alleged an exception to the
exhaustion requirement, specifically that an administrative
agency or officer has acted outside of the scope of its defined
statutory authority.”

¶12 In its oral ruling, the court also noted that “there was an
appeal” by the 125 Erda residents as well as “a review by [the
Council] of [the Commission’s] decision,” and that “[t]he reasons
for requiring exhaustion of administrative remedies have been
accomplished” in light of the fact that the Council “was given an
opportunity to review [the Commission’s] decision and it was
given an opportunity to self-correct” and “a record was created
here to allow for judicial review.” But the court’s written order

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did not include these thoughts, and instead focused entirely on
the “outside the scope of authority” exception.

¶13 Based on its conclusion that, at least at this procedural
stage, the Association had alleged facts sufficient to support the
conclusion that an exception to the exhaustion requirement
applied, the court denied the County’s motion to dismiss.

ISSUE AND STANDARD OF REVIEW

¶14 We granted the County leave to take an interlocutory
appeal from the denial of its motion to dismiss. “We review the
district court’s denial of [a] motion to dismiss for correctness,
granting no deference to the district court’s ruling.” First Equity
Fed., Inc. v. Phillips Dev., LC, 2002 UT 56, ¶ 11, 52 P.3d 1137
(quotation simplified); see also Nebeker v. Utah State Tax Comm’n,
2001 UT 74, ¶ 12, 34 P.3d 180 (reviewing for correctness the court’s
dismissal of the plaintiff’s petition for failure to “exhaust his
administrative remedies”); Republic Outdoor Advert., LC v. Utah
Dep’t of Transp., 2011 UT App 198, ¶ 12, 258 P.3d 619 (“[W]hether
a court lacks subject matter jurisdiction due to a party’s failure to
exhaust administrative remedies is a question of law, reviewed
for correctness.”).

ANALYSIS

¶15 In its appeal, the County challenges the district court’s
conclusion that, based on the facts alleged in the Association’s
petition, the “outside the scope” exception to the exhaustion
requirement might apply here. The Association disagrees, and
asks us to affirm the district court’s conclusions in that regard. In
the alternative, the Association asks us to affirm the court’s denial
of the County’s motion to dismiss on various other grounds. In
particular, the Association maintains that, because some of its

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members were involved in the administrative appeals that were
filed, it should be considered—through application of the
doctrine of associational standing—to have exhausted its
administrative remedies. And it asserts that two other exceptions
to the exhaustion requirement—in addition to the “outside the
scope” exception—apply in any event.

¶16 We begin our analysis with a general discussion of the
requirement that parties exhaust their administrative remedies
before seeking judicial relief. We then address—and reject—the
Association’s argument that it should be considered to have
exhausted its administrative remedies because some of its
members participated in the administrative appeals. Finally, we
discuss the potential application of various exceptions to the
exhaustion requirement, and conclude that none of them could
apply here, even if the facts as alleged by the Association are true.

I

¶17 The requirement that parties exhaust their administrative
remedies before seeking judicial review of administrative action
is an important one that serves multiple purposes. First and
foremost, the exhaustion requirement “allow[s] an administrative
agency to perform functions within its special competence—to
make a factual record, to apply its expertise, and to correct its own
errors so as to moot judicial controversies.” Western Water, LLC v.
Olds, 2008 UT 18, ¶ 18, 184 P.3d 578 (quotation simplified).
Relatedly, the requirement helps ensure that the administrative
decision that eventually comes before a court for review is the
agency’s final word on the matter. See Continental Air Lines, Inc. v.
Civil Aeronautics Board, 522 F.2d 107, 125 (D.C. Cir. 1974) (noting
that “[t]he interest in postponing review is strong if the agency
position whose validity is in issue is not in fact the agency’s final
position,” and that “[i]f the position is likely to be abandoned or
modified before it is actually put into effect, then its review wastes
the court’s time and interferes with the process by which the

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agency is attempting to reach a final decision”); see also
Summerhaze Co., LC v. FDIC, 2014 UT 28, ¶ 14, 332 P.3d 908 (noting
that “[o]ne purpose of” the exhaustion requirement is “the
avoidance of premature interruption of the administrative
process,” and stating that “courts should not interfere with an
agency until it has completed its action” (quotation simplified)).
In short, the exhaustion “requirement ‘serves the twin purposes
of protecting administrative agency authority and promoting
judicial efficiency.’” Culbertson v. Board of County Comm’rs, 2001
UT 108, ¶ 28, 44 P.3d 642 (quoting McCarthy v. Madigan, 503 U.S.
140, 145 (1992)), overruled on other grounds by Madsen v. JPMorgan
Chase Bank, NA, 2012 UT 51, 296 P.3d 671.

¶18 Moreover, in situations where “adjudicative authority”
over a “claim is specifically delegated to” a municipality or
administrative agency, the exhaustion requirement is more than
just a matter of convenience: it implicates a reviewing court’s
subject matter jurisdiction. See Ramsay v. Kane County Human Res.
Special Service Dist., 2014 UT 5, ¶ 9, 322 P.3d 1163. Utah district
courts, of course, have general jurisdiction over “all matters
except as limited by the constitution or by statute.” See id.
(quotation simplified); see also Utah Code Ann. § 78A-5-101(2)(a)
(LexisNexis Supp. 2022). But where a matter has been statutorily
delegated to a municipality or agency, “a party seeking relief must
exhaust all administrative remedies available before seeking
judicial review,” see Ramsay, 2014 UT 5, ¶ 9, and if this
“precondition to suit is not satisfied, courts lack subject matter
jurisdiction” to consider a party’s claim, see Housing Auth. v.
Snyder, 2002 UT 28, ¶ 11, 44 P.3d 724.

¶19 As relevant here, our legislature has delegated authority
over land use and zoning decisions to county decision-making
bodies. See Utah Code Ann. § 17-27a-102(1)(b) (LexisNexis Supp.
2022) (authorizing counties to “enact all ordinances, resolutions,
and rules” regarding “land use controls”). In particular, it has
commanded counties to “establish one or more appeal

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authorities” to “hear and decide,” among other things, “appeals
from land use decisions applying land use ordinances.” See id.
§ 17-27a-701(1). In this context, then, our legislature has
specifically delegated adjudicative authority over land use
decisions to counties, and where “such authority has been
delegated,” an exhaustion requirement exists that implicates a
court’s subject matter jurisdiction. See Ramsay, 2014 UT 5, ¶ 9; see
also id. ¶ 8 (“[T]he requirement that a party exhaust administrative
remedies before seeking judicial review is a matter of subject
matter jurisdiction.”). Thus, in LUDMA cases, the exhaustion
requirement is jurisdictional; where a party has not exhausted its
administrative remedies, its petition for judicial review must be
dismissed. See Patterson v. American Fork City, 2003 UT 7, ¶ 16, 67
P.3d 466 (noting that if a party “fails to exhaust . . . administrative
remedies prior to filing suit, the suit must be dismissed”).

¶20 When the administrative exhaustion requirement was first
articulated, it was a judicially created doctrine. See, e.g., Myers v.
Bethlehem Shipbuilding Corp., 303 U.S. 41, 50–51 & n.9 (1938)
(describing the requirement as “one of judicial administration”).
But over time, legislative bodies have also recognized the benefits
of requiring parties to exhaust their administrative remedies
before seeking judicial relief, and in certain contexts have passed
statutes containing an express statutory exhaustion requirement.
See, e.g., McCarthy v. Madigan, 503 U.S. 140, 144 (1992) (discussing
both judicial and statutory exhaustion requirements).

¶21 The specific exhaustion requirement at issue here is
statutory, as set forth in LUDMA. There, our legislature made the
requirement quite literally personal, stating as follows:

No person may challenge in district court a land use
decision until that person has exhausted the person’s
administrative remedies as provided in Part 7,
Appeal Authority and Variances, if applicable.

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Utah Code Ann. § 17-27a-801(1) (emphasis added). The term
“person” is, in this context, statutorily defined to include
“association[s].” See id. § 17-27a-103(51). And in “Part 7,” the
statute directly states that, “[a]s a condition precedent to judicial
review, each adversely affected party shall timely and specifically
challenge a land use authority’s land use decision, in accordance
with local ordinance.” Id. § 17-27a-701(2) (emphasis added).
LUDMA’s exhaustion requirement—unlike some other statutory
requirements 4—contains no exceptions. See id. § 17-27a-801(1). On
its face, it requires all persons, in all cases, to exhaust their
administrative remedies before seeking judicial relief.

¶22 In cases like this one, “[w]here the legislature has imposed
a specific exhaustion requirement,” our supreme court has
indicated that it “will enforce [that requirement] strictly.” See Salt
Lake City Mission v. Salt Lake City, 2008 UT 31, ¶ 6, 184 P.3d 599
(quotation simplified). But despite this pronouncement, our
supreme court has continued to consider and apply several
judicially created exceptions to the exhaustion requirement, even
in LUDMA cases in which the exhaustion requirement is statutory
and contains no exceptions. 5 See id. ¶¶ 6, 11 (applying an

4. For instance, the exhaustion requirement contained in Utah’s
Administrative Procedures Act includes exceptions for cases in
which “the administrative remedies are inadequate” and in which
exhaustion “would result in irreparable harm disproportionate to
the public benefit derived from requiring exhaustion.” See Utah
Code Ann. § 63G-4-401(2)(b) (LexisNexis 2019).

5. We wonder about the propriety of applying judicially created
exceptions to an exceptionless statutory exhaustion requirement.
See Ross v. Blake, 578 U.S. 632, 639–40 (2016) (drawing a distinction
between a judicially created exhaustion requirement and a
statutory exhaustion requirement, and concluding that statutory
(continued…)

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apparently exceptionless statutory exhaustion requirement—
from the version of LUDMA applicable to cities and towns—but
nonetheless considering the applicability of various exceptions to
the exhaustion requirement).

¶23 Those exceptions, as recognized by our supreme court,
exist in four specific “unusual” situations: (1) where a party
would sustain “irreparable injury” by having to exhaust its
administrative remedies; (2) where “there is a likelihood of
oppression or injustice” if a party were required to exhaust;
(3) where “exhaustion would serve no purpose, or is futile”; and
(4) where “an administrative agency or officer has acted outside
the scope of its defined, statutory authority.” See id. ¶ 11.

¶24 The Association asserts that exceptions to the exhaustion
requirement can potentially apply in other situations as well—

exhaustion requirements are not amenable to judicially created
exceptions, even though “judge-made exhaustion doctrines, even
if flatly stated at first, remain amenable to judge-made
exceptions”); Information Res., Inc. v. United States, 950 F.2d 1122,
1126 (5th Cir. 1992) (noting “a distinct difference between
statutorily mandated exhaustion of administrative remedies and
the judicially created doctrine of exhaustion of administrative
remedies,” and stating that “[w]hile courts may exercise
discretion in applying the judicially created doctrine of
exhaustion, such discretion is severely limited with respect to a
statutory exhaustion requirement”). But no party argues here that
the four recognized exceptions have no potential application to
this case due to the statutory source of the exhaustion
requirement. For that reason, and because our supreme court has
applied these exceptions in LUDMA cases, see, e.g., Salt Lake City
Mission v. Salt Lake City, 2008 UT 31, ¶¶ 6, 11, 184 P.3d 599, we
proceed to examine the applicability of these exceptions in this
case, without additional commentary on the propriety of doing so
in the face of an exceptionless statutory command.

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beyond just the four situations listed in Salt Lake City Mission—so
long as the case presents sufficiently “unusual circumstances.” In
support of this contention, the Association points to several cases
in which our supreme court has used the phrase “unusual
circumstances” to generally describe the situations in which
exceptions to the exhaustion requirement might apply. See, e.g., id.
(noting “a number of exceptions to the exhaustion requirement in
unusual circumstances” (quotation simplified)); Nebeker v. Utah
State Tax Comm’n, 2001 UT 74, ¶ 14, 34 P.3d 180 (“Exceptions to
[the exhaustion requirement] exist in unusual circumstances
where it appears that there is a likelihood that some oppression
or injustice is occurring such that it would be unconscionable not
to review the alleged grievance or where it appears that
exhaustion would serve no useful purpose.” (quotation
simplified)). But we do not interpret this case law as establishing
a free-floating catch-all exception for “unusual circumstances.”
Instead, we interpret those cases as simply identifying four
specific situations that are sufficiently unusual to justify a
judicially created exception to the exhaustion requirement.

¶25 Our interpretation in this regard is guided by the fact that,
in this case, the applicable exhaustion requirement is statutory.
Our legislature has passed a law requiring each person who
wishes to judicially challenge a county’s land use decision to
exhaust administrative remedies. See Utah Code Ann. § 17-27a-
801(1). And unlike it did in enacting the Administrative
Procedures Act, see id. § 63G-4-401(2)(b) (LexisNexis 2019), in
enacting LUDMA the legislature did not include any exceptions
to the exhaustion requirement, see id. § 17-27a-801(1). We have
already noted our discomfort with applying, in this context, the
four exceptions our supreme court has already enumerated. See
supra note 5. We do not believe it appropriate for this court to
recognize another one in this case, especially one as general as
“unusual circumstances.” See Herland v. Izatt, 2015 UT 30, ¶ 32, 345
P.3d 661 (“[I]t is not our prerogative to carve out exceptions to

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[statutory] regime[s] established by the Utah Legislature.”).
Certainly, creation of such a broad exception would be at odds
with our mandate to construe statutory exhaustion requirements
strictly. See Salt Lake City Mission, 2008 UT 31, ¶ 6.

¶26 With this background in mind, we now turn to the specific
arguments made by the parties in this appeal.

II

¶27 As noted, LUDMA expressly requires each “person”
challenging “a land use decision” in court to have already
exhausted that person’s administrative remedies. See Utah Code
Ann. § 17-27a-801(1). The Association acknowledges that it did
not file an administrative appeal of the Commission’s “conceptual
approvals” prior to filing its petition for judicial review.
Nevertheless, the Association takes the position that it should be
deemed to have exhausted its administrative remedies because
some of the individuals who participated in the administrative
appeal process happen to be members of the Association. The
district court rejected this argument, and so do we.

¶28 In advancing this argument, the Association invokes the
doctrine of “associational standing.” Under that doctrine, “[a]n
association . . . has standing” to seek relief in court “if its
individual members have standing” to do so “and the
participation of the individual members is not necessary to the
resolution of the case.” Utah Chapter of the Sierra Club v. Utah Air
Quality Board, 2006 UT 74, ¶ 21, 148 P.3d 960. In this case, because
the Association sets forth facts asserting that some of its members
“have a stake in the outcome of the dispute” regarding the
propriety of the County’s conceptual approval of Developer’s
applications, the Association may very well have had
associational standing to file an administrative appeal challenging
the County’s decision. At least, the County does not now argue
otherwise. But the possible existence of associational standing

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does not relieve the Association of its obligation to exhaust its
administrative remedies before seeking, on behalf of its members,
judicial review of the County’s land use decisions.

¶29 Indeed, as the district court correctly recognized,
“[a]ssociational standing and the requirement to exhaust
administrative remedies are two different and distinct legal
concepts.” An association can possess associational standing, yet
still fail to exhaust its administrative remedies. And that is
apparently what happened here. The Association may well have
had associational standing to file an administrative appeal of the
Commission’s decision and, had it done so, it may have had the
right—invoking the associational standing doctrine—to file a
valid petition seeking, on behalf of its members, judicial review of
the County’s approval of Developer’s applications. Alternatively,
one or more of the individuals who filed the timely administrative
appeals could have filed a petition for judicial review; these
individuals were in a position to do so because they had
challenged the Commission’s decision with the Council and had
thereby exhausted their administrative remedies. But the
Association needs to satisfy both doctrines: associational standing
and exhaustion of administrative remedies. The fact that it may
well be able to satisfy the first does not operate to relieve it from
its obligation to satisfy the second. 6

6. The cases cited by the Association in support of its argument
are not to the contrary. See UAW v. Brock, 477 U.S. 274, 281–89
(1986) (discussing exhaustion of administrative remedies only in
passing, as part of considering whether a labor union could meet
the first element of the associational standing test); Southern Utah
Wilderness All. v. San Juan County, 2021 UT 6, ¶¶ 14–27, 484 P.3d
1140 (concluding that an environmental group had associational
standing, without consideration of whether it had exhausted
administrative remedies).

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¶30 Under the governing statute, each “person” who
challenges a county’s “land use decision” in court must have
exhausted that “person’s administrative remedies.” See Utah
Code Ann. § 17-27a-801(1). And as noted, the term “person,” as
used here, includes “association[s].” See id. § 17-27a-103(51).
Under the statute, then, the Association—as a “person”—was
required to exhaust its own administrative remedies, and it
cannot rely on the fact that some of its members participated in a
timely administrative appeal.

III

¶31 Because the Association failed to exhaust its administrative
remedies, its petition for judicial review must be dismissed unless
it can demonstrate that one of the established exceptions to the
exhaustion requirement applies here. See Ramsay v. Kane County
Human Res. Special Service Dist., 2014 UT 5, ¶ 18, 322 P.3d 1163
(noting that it was the petitioners’ “burden to establish that they
should be excused from exhaustion”); Patterson v. American Fork
City, 2003 UT 7, ¶ 16, 67 P.3d 466 (stating that if a party “fails to
exhaust [its] administrative remedies prior to filing suit, the suit
must be dismissed”). The district court concluded that, at least at
this procedural stage, the Association had alleged facts sufficient
to invoke the “outside the scope” exception to the exhaustion
requirement. In addition, the Association asks us to consider the
applicability of two other exceptions: futility and “oppression or
injustice.” We consider each of these three exceptions, in turn, and
conclude that none of them apply to the facts as alleged here.

A

¶32 We first consider the potential applicability of the “outside
the scope” exception, even though it is listed as the fourth
exception, because that is the exception the district court relied
upon. That exception applies in cases where “an administrative
agency or officer has acted outside the scope of its defined,

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statutory authority.” See Salt Lake City Mission v. Salt Lake City,
2008 UT 31, ¶ 11, 184 P.3d 599.

¶33 The Association concedes, as it must, that county land use
officials—including the Commission and the Council—have
statutory authority to consider and evaluate (and ultimately to
grant or deny) zoning and other land use applications. Indeed,
LUDMA gives counties broad power to “enact . . . ordinances,
resolutions, and rules” regarding “land use controls,” as the
county deems “necessary or appropriate for the use and
development of land” within the county, and provides that these
land use controls may govern “uses,” “density,” “open spaces,”
and other “considerations of surrounding land uses to balance”
the county’s interests “with a landowner’s private property
interests and associated statutory and constitutional protections.”
See Utah Code Ann. § 17-27a-102(1)(b). LUDMA also requires
counties to establish “a countywide planning commission,” see id.
§ 17-27a-301(1)(a), as well as “one or more appeal authorities . . .
[to] hear and decide . . . requests for variances” from land use
ordinances and “appeals from land use decisions applying land
use ordinances,” id. § 17-27a-701(1). The County, through the
Commission and the Council, was acting well within the scope of
this general grant of authority when it reviewed Developer’s
applications and conceptually approved them. If we examine the
“authority” question from a general, categorical perspective, the
Association’s position is quite clearly infirm.

¶34 Perhaps recognizing this, the Association asks us to view
the “authority” issue from a granular, case-specific perspective.
Even while acknowledging that the County has general authority
to evaluate and rule upon land use applications, the Association
asserts that the County incorrectly—and, in its view, illegally—
granted Developer’s applications. Among other arguments, the
Association identifies the following asserted infirmities in the
County’s assessment of Developer’s applications:

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• The Association alleges that the County’s approval
violated Tooele County Land Use Ordinance 3-11,
which states that “[a] final determination regarding an
application to amend the zoning map shall preclude the
filing of another application to amend the zoning map
to reclassify the same parcel of property . . . within one
year of the date of the final decision.” Tooele County,
Utah, Land Use Ordinance § 3-11. The Association
believes that Developer’s application constitutes “an
application to amend the zoning map,” and believes
that Developer’s earlier request for a rezone (see supra
note 3), made less than a year before the applications at
issue here, was too.

• The Association alleges that the County’s approval
violated Tooele County Land Use Ordinance 9-4, which
requires “applicant[s]” to “participate in a pre-
application conference with” county officials. Tooele
County, Utah, Land Use Ordinance § 9-4. The
Association alleges that no such “pre-application
conference” ever took place.

• The Association alleges that the County’s approval
violated Tooele County Land Use Ordinance 9-6, which
the Association interprets as requiring each application
to contain certain items, some of which the Association
asserts were not submitted with Developer’s
application.

• The Association alleges that the County failed to give
proper notice—as it asserts is required by Tooele
County Land Use Ordinances 7-4 and 7-11 and by
section 205 of LUDMA—to the public regarding
Developer’s application and regarding the public
hearing held regarding that application.

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• The Association alleges that an owner of some of the
property at issue withdrew its consent to Developer’s
application, and asserts that the County’s approval in
the face of this withdrawal violated Tooele County
Land Use Ordinance 9-7, which the Association
interprets as requiring “the owner’s signed consent”
before the County may move the application “forward
into the next stage.”

• The Association alleges that the County’s approval of
Developer’s application violated Tooele County Land
Use Ordinance 7-5, which contains requirements for
approving conditional use permits. See Tooele County,
Utah, Land Use Ordinance § 7-5. The Association
asserts that the County erroneously “concluded [that] it
must approve” Developer’s applications, and that the
County did not “tak[e] into consideration the multiple
violations of law and consequent harm to its citizens.”

• The Association alleges that the County’s approval of
Developer’s application constitutes unlawful “spot
zoning,” in violation of Tooele County Land Use
Ordinance 3-9.

The Association points out that some of these ordinances contain
the word “shall,” and argues that the County therefore had no
“discretion” to approve the applications. In short, the Association
asserts that, because the County’s approval allegedly violated
some of its own land use ordinances, some of which contain
mandatory language (e.g., “shall”), the County acted “outside the
scope of its defined, statutory authority,” and therefore the
Association was exempted from having to exhaust its
administrative remedies before seeking judicial review.

¶35 But the Association’s argument proves too much. Any
person who challenges a county’s land use decision must—in

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Tooele County v. Erda Community Assoc.

order to win—prove that the county’s decision is either (a)
arbitrary and capricious or (b) illegal. See Utah Code Ann. § 17-
27a-801(3)(b). And the arguments the Association mounts now, in
support of its assertion that the County acted “outside the scope”
of its authority for exhaustion purposes, are more or less the same
arguments the Association made in its petition in support of its
assertion that the County’s actions were “illegal.” If the
Association’s position were correct, and arguments like these
were sufficient to assert that a county had acted “outside the
scope” of its authority for exhaustion purposes, then no credible
land use challenger would ever need to exhaust administrative
remedies, because every such challenger must, by definition,
assert that the county somehow acted unlawfully.

¶36 Indeed, our supreme court has already rejected the
argument that the “outside the scope” exception to exhaustion is
broad enough to cover circumstances like these. See Salt Lake City
Mission, 2008 UT 31, ¶ 12 n.2. In that case, the entity challenging
the municipal land use decision failed to exhaust its
administrative remedies, but asserted that it was not required to
do so because the municipality had acted “outside the scope of its
defined, statutory authority.” Id. In support of its contention, the
entity asserted that the municipality had “issu[ed] an
administrative interpretation letter without a request by the
[entity] or payment of the fee—both of which are required under
the relevant [municipal] ordinance.” Id. The court rejected the
entity’s argument, and elected to construe the “authority”
question at a broader, more categorical level. See id. The court
stated that “[i]ssuing such a letter . . . is an action that falls within
the [municipality’s] authority,” even if the municipality failed to
strictly comply with the provisions of the ordinance governing
such letters. Id. The court concluded by stating as follows: “That
certain procedures may not have been followed, or requirements
met, does not mean that the action falls without the agency’s
authority” for purposes of the exhaustion exception. Id.

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¶37 Our supreme court has, in other contexts, also analyzed
“authority” questions at a categorical level, rather than a granular
one. In State v. Gardiner, for instance, the court considered whether
a police officer who had conducted a search that was later
determined to be illegal under the Fourth Amendment had acted
within the scope of his authority while conducting the search. See
814 P.2d 568, 574–75 (Utah 1991). The court framed the question
broadly, explaining that, in “interpreting the language ‘scope of
authority,’ . . . the test is whether an officer is doing what he or
she was employed to do or is engaging in a personal frolic of his
or her own.” Id. at 574 (quotation simplified). Applying that test
to the facts of the case, the court concluded that the officer was
indeed acting “within the scope of his authority as a peace officer”
when he conducted the search, and “[t]he fact that his attempted
search was later found to be unlawful does not divest him of his
authority.” Id. at 575.

¶38 Similarly here, County land use officials unquestionably
have authority to review and consider zoning and land use
applications, and they act within the course and scope of that
authority when they grant or deny (or otherwise act) on those
applications. And the mere fact that those same officials
sometimes erroneously grant or deny some of those applications,
and perhaps even incorrectly interpret or apply state law or
county ordinances in so doing, does not operate to remove their
actions from the scope of their authority.

¶39 Finally, examination of the case the Association relies on—
Walker Bank & Trust Co. v. Taylor, 390 P.2d 592 (Utah 1964)—does
not change our analysis. In that case, one local bank (Walker Bank)
challenged an order of the Utah State Bank Commissioner
allowing a competitor bank (State Bank of Provo) to “establish a
branch bank” location, in addition to its main bank location, “in
the city of Provo.” Id. at 593. Walker Bank brought its challenge
directly to district court and did not first file an administrative
appeal with “the state board of examiners.” Id. at 595. On that

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Tooele County v. Erda Community Assoc.

basis, State Bank of Provo asked the court to dismiss the complaint
for failure to exhaust administrative remedies. Id. The court
rejected that argument, concluding that the governing statute
gave the Bank Commissioner no discretion to grant State Bank of
Provo’s request because that statute prevented any “branch bank”
from being established in any city in which there was already a
bank unless the new bank was taking over the location of an
already existing bank. See id. at 593–94. And because there was
already a bank in Provo, including State Bank of Provo’s main
location, and because State Bank of Provo was not attempting to
take over an existing bank, the court determined that, statutorily,
the Bank Commissioner had no authority to allow State Bank of
Provo to establish a “branch bank” in Provo. Id. at 595. On that
basis, the court determined that Walker Bank was excused from
exhausting its administrative remedies because the Bank
Commissioner had acted outside the scope of his statutory
authority. Id.

¶40 Thus, in Walker Bank, there was a substantive governing
statute at issue, and there is nothing analogous at issue in this
case; as noted, the Association points to LUDMA and various
county land use ordinances, all of which have to do with matters
unquestionably within the authority of county land use officials.
But in addition, our analysis of Walker Bank is guided by two
developments that have taken place in the nearly six decades
since Walker Bank was decided. First, in Salt Lake City Mission, our
supreme court considered—and distinguished—Walker Bank in
the process of concluding that the fact “[t]hat certain procedures
may not have been followed, or requirements met, does not mean
that the action falls without the agency’s authority.” See Salt Lake
City Mission, 2008 UT 31, ¶ 12 n.2. Our supreme court has
therefore interpreted Walker Bank quite narrowly, and as
materially distinguishable from situations like the one presented
here. Second, our legislature has since enacted LUDMA, which
includes the restrictive (and quite personal) statutory exhaustion

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Tooele County v. Erda Community Assoc.

requirement. See Utah Code Ann. § 17-27a-801(1). As near as we
can tell, there was no statutory exhaustion requirement at issue in
Walker Bank. In light of these circumstances, we read Walker Bank
narrowly, as our supreme court did in Salt Lake City Mission, and
do not consider it particularly applicable to the situation
presented here, especially in light of the explicit statutory
exhaustion command. 7

¶41 The County had statutory authority to consider and decide
Developer’s applications. Even if the Association were correct—
and we offer no opinion on this question—that the County acted
in contravention of LUDMA or county ordinance in approving
those applications, it would at best amount to a showing that the
County acted “illegally.” See id. § 17-27a-801(3)(b)(ii). These facts,
even if true, do not in this case constitute action “outside the scope
of” the County’s “defined, statutory authority” for purposes of
the exhaustion requirement. See Salt Lake City Mission, 2008 UT 31,
¶¶ 11–12 & n.2. Thus, even assuming the Association’s factual
allegations to be true, as we must for purposes of this appeal, the
Association cannot bear its burden of demonstrating that the
County acted outside the scope of its authority in approving
Developer’s applications. Accordingly, the “outside the scope”
exception to the exhaustion requirement has no application here,
and the district court erred in concluding that it did.

B

¶42 We next consider the applicability of the so-called “futility”
exception to the exhaustion requirement. As noted above, our

7. The other cases the Association cites in support of its position
are also unhelpful, chiefly because none of them involve
application of the exhaustion requirement or any of its exceptions.
See Toone v. Weber County, 2002 UT 103, 57 P.3d 1079; Preece v.
House, 886 P.2d 508 (Utah 1994); Olson v. Salt Lake City School Dist.,
724 P.2d 960 (Utah 1986).

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Tooele County v. Erda Community Assoc.

supreme court has established an exception in cases where
“exhaustion would serve no purpose, or is futile.” See Salt Lake
City Mission, 2008 UT 31, ¶ 11. The Association asks us to affirm
the district court’s ultimate conclusion on this alternative ground,
asserting that the Council’s denial of the administrative appeals
filed by the 125 Erda residents demonstrates that any appeal by
the Association would have been futile.

¶43 We acknowledge at the outset that the Association’s
argument has some facial appeal. The arguments the Association
makes—listed herein, see supra ¶ 34—regarding the asserted
unlawfulness of the County’s approval of Developer’s
applications are similar to the arguments made by the Erda
residents in the context of their administrative appeal, and the
majority of the Council rejected those arguments. There may be
little reason to believe that the outcome of the administrative
appeal would have been any different had the Association signed
on to that appeal as the 126th appellant.

¶44 But as we understand it, our supreme court has conceived
of “futility” in this context in a narrow way, and that conception
does not fit these facts. As that court has characterized it, “futility”
exists in situations where “the entire administrative appeals
process is inoperative or unavailable.” Patterson v. American Fork
City, 2003 UT 7, ¶ 20, 67 P.3d 466; see also Salt Lake City Mission,
2008 UT 31, ¶ 13 (rejecting a futility argument because the
petitioner had “not shown that the City’s administrative appeals
process [was] inoperative”); Hatton-Ward v. Salt Lake City Corp.,
828 P.2d 1071, 1072 (Utah Ct. App. 1992) (applying the futility
exception where the petitioner sought damages, fines, and
attorney fees, but where the administrative appeal process, by
statute, only allowed a single remedy: reinstatement). In this case,
by contrast, the administrative appeal process was both available
and operative, and the remedy the Association seeks—reversal of
the Commission’s decision to approve Developer’s applications—

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Tooele County v. Erda Community Assoc.

was unquestionably one the Council would have been able to
provide, if it had been persuaded by the Association’s arguments.

¶45 And we are ultimately persuaded by the County’s
argument that, if we applied the futility exception under the
circumstances here, we would be expanding that exception to the
point where it would swallow the rule. It cannot be the case that
a denied administrative appeal filed by anyone renders futile any
unfiled appeal by anyone else. Sometimes, one party is not
situated similarly to another, with regard to standing or
otherwise, and one party may be better positioned to mount an
appeal. And even similarly situated parties sometimes make
different arguments, or present the same arguments in better and
more effective ways. It does not necessarily follow from the failure
of one party’s appeal that another’s similar appeal will also fail.

¶46 But more to the point, applying the futility exception in
these circumstances would be directly contrary to LUDMA’s
statutory command. As noted, LUDMA includes an explicit—and
very personal—exhaustion requirement, commanding each
“person” to exhaust “the person’s administrative remedies.” See
Utah Code Ann. § 17-27a-801(1); see also id. § 17-27a-701(2) (“As a
condition precedent to judicial review, each adversely affected
party shall timely and specifically challenge a land use authority’s
land use decision.”). If we were to allow any LUDMA petitioner
to piggyback onto another person’s denied administrative appeal
for purposes of exhaustion, merely because we considered the
petitioner’s appeal similar to the denied one, we would effectively
be excising from the statute the requirement that each “person”
exhaust “the person’s administrative remedies.” Id. § 17-27a-
801(1); see also Herland v. Izatt, 2015 UT 30, ¶ 32, 345 P.3d 661 (“[I]t
is not our prerogative to carve out exceptions to [statutory]
regime[s] established by the Utah Legislature.”). Especially given
how narrowly our supreme court has conceived of the “futility”
exception generally, we decline the Association’s invitation to
apply that exception here.

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C

¶47 Finally, we consider the applicability of the exception for
cases in which “there is a likelihood of oppression or injustice.”
See Salt Lake City Mission, 2008 UT 31, ¶ 11. The Association asks
us to affirm the district court’s ultimate conclusion on this
alternative ground, asserting in rather conclusory fashion that
“[b]arring judicial review in this case . . . [would] result in
oppression and injustice.” In particular, the Association describes
the County’s alleged violations of state law and county
ordinances—listed herein, see supra ¶ 34—as “shocking,” and
asserts that if the County’s approval of Developer’s applications
is allowed to stand, the Association’s members will be deprived
of their rights and will suffer “degradation” of their “rural
agricultural lifestyle.”

¶48 But the Association misperceives the reach of this
exception. For this exception to apply, it is the exhaustion
requirement itself—and not the underlying issue—that must
result in oppression or injustice. See Christensen v. Utah State Tax
Comm’n, 2020 UT 45, ¶ 36, 469 P.3d 962 (rejecting the argument
that the mere fact that a decision was unreviewable constituted
irreparable harm, and stating that “[t]o accept [that] argument
would mean that no one would need to exhaust their available
remedies”); cf. Utah Code Ann. § 63G-4-401(2) (providing that,
under the Utah Administrative Procedures Act, there is an
exception to the exhaustion requirement where exhaustion
“would result in irreparable harm disproportionate to the public
benefit derived from requiring exhaustion”). The Association has
not even attempted to show that it would have been oppressive
or unjust for it to have had to exhaust its administrative remedies.
And as we understand it, such a showing would be quite difficult
for the Association to make, given that there appears to be no
reason why the Association could not have filed an administrative
appeal, or at least joined in the one filed by the Erda residents.

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Tooele County v. Erda Community Assoc.

¶49 In sum, in order to properly invoke the “oppression or
injustice” exception, a litigant must demonstrate that the
exhaustion requirement itself—as distinct from the underlying
grievance—resulted in oppression or injustice. And the
Association has not made this showing. Instead, its arguments are
aimed at the asserted injustice of the County’s underlying
approval of Developer’s applications. None of its arguments are
aimed at showing that it would have been oppressive or unjust
for the Association to have had to file its own administrative
appeal. We therefore decline the Association’s invitation to apply
the “oppression or injustice” exception to these facts.

CONCLUSION

¶50 The Association failed to exhaust its administrative
remedies and—even assuming its alleged facts to be true—it has
not carried its burden of demonstrating that any of the established
exceptions to the exhaustion requirement could apply here. As a
result, the district court had no subject matter jurisdiction to
consider the Association’s petition for judicial review, and it erred
by denying the County’s motion to dismiss. We therefore reverse
the court’s denial of the County’s motion, and remand this case
for entry of an order of dismissal.

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