Harvey v. Cedar Hills

1 See Municipal Disconnection Amendments, ch. 279, §§ 1-6,
2003 Utah Laws 1283.
2010 UT 12
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
David C. Harvey and 	No. 20080586
Dixie Harvey,
Petitioners and Appellants,
v.
F I L E D
Cedar Hills City,
Respondent and Appellee. 	February 26, 2010
---
Fourth District, Provo Dep’t
The Honorable James R. Taylor
No. 010403694
Attorneys: 	Gordon W. Duval, American Fork, for petitioners
Eric Todd Johnson, R. Christopher Preston, Kyle C.
Fielding, Salt Lake City, for respondent
---
DURRANT, Associate Chief Justice:
INTRODUCTION
¶1 	This case arises from a petition filed by appellants,
David C. and Dixie Harvey (the “Harveys”), seeking disconnection
of their land from Cedar Hills City. 	After this petition was
filed in August 2001, but before the district court granted
summary judgment in favor of Cedar Hills in June 2008, the
legislature amended certain sections of the Utah Code that relate
to the standards for granting disconnection (the “2003
amendments”). 1 	The district court determined that disconnection
was prohibited under both versions of the disconnection statute
because it found the two versions identical with regard to what
it believed to be the single dispositive issue: 	that
disconnection would form an unincorporated island. 	In this
appeal, we must determine whether the district court erred in

No. 20080586 	2
this determination. 	To resolve that issue, we must decide
(1) which version of the disconnection statute applies to the
Harveys’ petition; and (2) whether, under the correct version of
the law, the district court erred in dismissing the petition
based solely on the fact that disconnection would result in an
island of unincorporated land.
¶2 	We hold that because the 2003 amendments substantively
modified the criteria for disconnection the 2001 version of the
disconnection statute (“2001 statute”) applies in this case. 	We
further hold that disconnection under the 2001 statute is
permissible, even if it results in an island of unincorporated
land, if the district court determines that disconnection will
not materially increase the burdens borne by the municipality.
Because the district court failed to consider whether
disconnection of the Harveys’ land would materially increase the
burdens on Cedar Hills, it erred in granting summary judgment.
We therefore reverse the judgment of the district court and
remand so that the court may determine the overall impact of
disconnection.
BACKGROUND
¶3 	The parcel of land at issue in this case lies at the
border between the cities of Cedar Hills and Pleasant Grove.
Indeed, the Harveys own two contiguous parcels of land. 	The
southern halves of each parcel are incorporated into Pleasant
Grove, while the northern halves of each parcel--the land at
issue in this case--are incorporated into Cedar Hills.
¶4 	The border between the two cities is irregularly drawn.
In general, Cedar Hills is north of Pleasant Grove. 	But on
Pleasant Grove’s eastern border, Cedar Hills extends southward,
forming a peninsula that separates Pleasant Grove from
unincorporated land further east. 	Along this same border,
Pleasant Grove extends northward, forming a smaller peninsula
that extends into Cedar Hills. 	The Harvey property lies in the
midst of this area of mutual encroachment, in a corner of the
boundary between the two cities. 	Cedar Hills is situated to the
west and north of the Harvey property. 	Pleasant Grove lies to
the south and east.
¶5 	In June of 2001, the Harveys presented Cedar Hills with
a Request for Disconnection. 	This request cited, as the
justification for disconnection, city zoning decisions that the
Harveys found to be objectionable, including the decision by
Cedar Hills to annex a portion of the Harvey property for use as
a city park and the apparent failure of the Harveys and Cedar

3 	No. 20080586
Hills to negotiate a mutually satisfactory plan for the future
use of the land. 	The Harveys also cited their desire to have
their parcels of land united under a single city’s government,
indicating their intention to seek incorporation into Pleasant
Grove if the disconnection were granted.
¶6 	When Cedar Hills did not grant this request for
disconnection within the statutory time frame, the Harveys filed
their petition with the district court. 	At about this same time,
Cedar Hills’ proposed use of the Harveys’ land led to the
commencement of two other cases. 	In one case, the Harveys
alleged that Cedar Hills’ actions amounted to an unconstitutional
taking. 	In the second case, Cedar Hills sought condemnation of
the territory proposed for disconnection. 	The condemnation
action and the takings claim were ultimately consolidated with
this case and stayed pending the district court’s resolution of
the disconnection issue. 	These actions delayed until 2008 the
district court’s consideration of the issues regarding
retroactive application of the amended standard.
¶7 	This delay bears on the central issue in this case.
Had the dispute between Cedar Hills and the Harveys been resolved
prior to 2003, only one version of the relevant portions of the
Utah Code would have been at issue. 	But because the legislature
amended portions of the disconnection statutes in 2003, the court
was faced with two potentially applicable versions of the
disconnection statute and was therefore required to determine
whether the 2003 amendments should be given retroactive effect.
¶8 	The Harveys moved for summary judgment on the issue of
which version of the disconnection statute should be applied in
this case. 	After oral argument on the issue, the district court
determined that no substantive difference exists between the 2001
statute and the 2003 amendments. 	Instead, the court found that
unincorporated islands of land are prohibited under either
version. 	Finding also that the Harveys’ property would form such
an island, the court granted summary judgment in favor of Cedar
Hills and denied the Harveys’ petition.
¶9 	We hold that the district court erred in granting
summary judgment in favor of Cedar Hills. 	The court’s conclusion
that the statutes are identical was incorrect because the 2003
amendments substantively modified the criteria for disconnection.
Unlike the 2003 amendments, the 2001 statute does not absolutely
prohibit islands of unincorporated territory. 	Instead, the
creation of such an island is one of several factors that the
court must consider in determining whether to permit
disconnection. 	Because the district court concluded that

2 MacFarlane v. Utah State Tax Comm’n, 2006 UT 25, ¶ 9, 134
P.3d 1116.
3 Utah R. Civ. P. 56(c).
4 MacFarlane, 2006 UT 25, ¶ 9.
No. 20080586 	4
unincorporated islands are prohibited under either version of the
disconnection statute, it did not consider the impact of the
island as required by the 2001 statute. 	Without resolution of
this factual question, summary judgment was inappropriate.
Therefore, we reverse the judgment of the district court and
remand for application of the correct standard. 	We have
jurisdiction pursuant to section 78A-3-102(3) of the Utah Code.
STANDARD OF REVIEW
¶10 	We review a district court’s grant of summary judgment
for correctness. 2 	We affirm a grant of summary judgment when the
record shows “there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter
of law.” 3 	A district court’s interpretation of a statute is a
question of law, which we also review for correctness. 4
ANALYSIS
¶11 	Our task is not to determine the propriety of
disconnection in this case. 	Instead, we must determine whether
the district court erred in granting summary judgment in favor of
Cedar Hills. 	In resolving this question we have come to two
conclusions. 	First, the Harveys’ petition should be analyzed
under the 2001 statute. 	Second, summary judgment was
inappropriate because the district court did not examine the
overall impact of disconnection relative to the burdens borne by
the municipality in providing services to the surrounding area.
Because the court did not determine whether disconnection of the
Harveys’ land would materially increase the burdens on Cedar
Hills, we reverse its grant of summary judgment and remand for
further proceedings.
I. 	THE HARVEYS’ PETITION SHOULD BE ANALYZED UNDER THE LAW IN
EFFECT IN 2001 BECAUSE THE 2003 AMENDMENTS SUBSTANTIVELY CHANGED
THE DISCONNECTION STATUTES
¶12 	The Harveys filed their disconnection petition in
August 2001. 	As a general rule, when adjudicating a dispute we
apply the version of the statute that was in effect “at the time

5 Taghipour v. Jerez, 2002 UT 74, ¶ 5 n.1, 52 P.3d 1252.
6 See Olsen v. Samuel McIntyre Inv. Co., 956 P.2d 257, 261
(Utah 1998) (“This court . . . ‘narrowly draws the boundaries of
what constitutes a procedural statute.’” (quoting Salt Lake Child
& Family Therapy Clinic, Inc. v. Frederick, 890 P.2d 1017, 1020
n.3 (Utah 1995))).
7 Utah Code Ann. § 68-3-3 (2008).
8 Olsen, 956 P.2d at 261 (quoting Visitor Info. Ctr. Auth.
v. Customer Serv. Div., 930 P.2d 1196, 1198 (Utah 1997)).
9 Id.
10 Dep’t of Soc. Servs. v. Higgs, 656 P.2d 998, 1001 (Utah
1982).
11 Roark v. Crabtree, 893 P.2d 1058, 1062 (Utah 1995).
12 Brown & Root Indus. Serv. v. Indus. Comm’n, 947 P.2d 671,
(continued...)
5 	No. 20080586
of the events giving rise to [the] suit.” 5 	Thus, the statute in
effect in 2001 will control the resolution of this dispute unless
an exception to the general rule applies in this case.
¶13 	We have previously observed that exceptions to this
general rule are rare. 6 	In large part, this is because the Utah
Code expressly restricts the retroactive application of
legislative changes by declaring that “[n]o part of these revised
statutes is retroactive, unless expressly so declared.” 7 	In
conjunction with this restriction, we “presume that when the
legislature amends a statute, it intended the amendment ‘to
change existing legal rights.’” 8 	When a statute is amended
without expressly providing for retroactive application--as is
the case here--the circumstances that justify retroactive
application of the amendment are limited. 9
¶14 	Within these limits, we have recognized two exceptions
that Cedar Hills argues should apply in this case. 	First, we
will give retroactive effect to statutory amendments that merely
“clarify the meaning of an earlier enactment.” 10 	Second, a
statute may be given retroactive effect if it changed prior law
in ways that are merely procedural. 11 	A change will be
considered procedural if it “merely ‘pertains to . . . the
practice and procedure or the legal machinery by which the
substantive law is determined or made effective.’” 12 	We have

12 (...continued)
675 (Utah 1997) (quoting Wash. Nat’l Ins. Co. v. Sherwood
Assocs., 795 P.2d 665, 669 (Utah Ct. App. 1990)).
13 Higgs, 656 P.2d at 1000. 	See also Due South, Inc. v.
Dep’t of Alcoholic Beverage Control, 2008 UT 71, ¶ 14, 197 P.3d
82; Powell v. Cannon, 2008 UT 19, ¶ 3 n.1, 179 P.3d 799;
Kilpatrick v. Wiley, 2001 UT 107, ¶ 59, 37 P.3d 1130; Brown &
Root, 947 P.2d at 675; Moore v. Am. Coal Co., 737 P.2d 989, 990
(Utah 1987).
14 Brown & Root, 947 P.2d at 675 (internal quotation marks
omitted).
15 Vigos v. Mountainland Builders, Inc., 2000 UT 2, ¶ 13,
993 P.2d 207 (“The plain language controls the interpretation of
a statute, and only if there is ambiguity do we look beyond the
plain language to legislative history or policy
considerations.”).
16 Id.
17 World Peace Movement of Am. v. Newspaper Agency Corp.,
Inc., 879 P.2d 253, 259 (Utah 1994).
No. 20080586 	6
often stated that retroactive application is permissible if the
amended version of the statute “[does] not enlarge, eliminate, or
destroy vested or contractual rights.” 13 	In contrast, we have
characterized the substantive law as “the positive law which
creates, defines and regulates the rights and duties of the
parties.” 14 	Thus, if the 2003 amendments modified the Harveys’
rights with regard to disconnection, retroactive application of
the amendments is inappropriate.
¶15 	The starting point for this inquiry, as with all
questions of statutory interpretation, is an examination of the
plain language of the relevant statutes. 15 	If the language is
unambiguous, we confine our interpretation to the words of the
two statutes. 16 	We “seek guidance from the legislative history
and relevant policy considerations” only if the statutory
language is ambiguous or unclear. 17
¶16 	If our comparison of the two versions of the
disconnection statutes reveals differences in statutory language,
we will then examine whether these differences are procedural or
were adopted for purposes of clarifying the earlier version of
the statute. 	If so, we will give retroactive effect to the 2003
amendments. 	But if the 2003 amendments resulted in substantive

18 Utah Code Ann. § 10-2-502.7(3) (2007) (“The burden of
proof is on petitioners who must prove [the necessary facts] by a
preponderance of the evidence.”).
19 Id. § 10-2-502.7(3)(a) to (3)(b).
20 Id. § 10-2-502.7(3)(d).
21 Id. § 10-2-502.7(3)(c)(i) to (3)(c)(ii).
22 Id. § 10-2-502.7(3)(c)(iii) (emphasis added).
23 2007 UT 57, ¶ 63, 167 P.3d 1016.
7 	No. 20080586
changes to the law, we will apply the law in effect at the time
the Harveys filed their petition.
A. 	The Plain Language of the Disconnection Statutes Reveals
Clear Differences in the Criteria for Disconnection
¶17 	A side-by-side comparison of the relevant provisions
makes it clear that the statutes are different. 	After the 2003
amendments, the disconnection statute places the burden on
petitioners to prove several things by a preponderance of the
evidence. 18 	They must show that disconnection is viable and
required by justice and equity. 19 	They must also show that the
county where the disconnected land will be situated is “capable
[of providing], in a cost-effective manner and without materially
increasing the county’s costs,” the services previously provided
by the municipality. 20 	In addition, the petitioners must prove
that disconnection will not “leave the municipality with an area
within its boundaries for which . . . burdens of providing
municipal services would materially increase,” or “make it . . .
unfeasible for the municipality to continue to function as a
municipality.” 21 	Finally, and crucially, the 2003 amendments
require the petitioner to prove “that the proposed disconnection
will not . . . leave or create one or more islands or peninsulas
of unincorporated territory.” 22
¶18 	We have previously noted that this last requirement
operates as an absolute prohibition on disconnection when it
would result in an island of unincorporated territory. 	In
Bluffdale Mountain Homes, LC v. Bluffdale City, we stated,
“[c]learly, if the disconnection creates an island of
unincorporated territory, the disconnection is impermissible.” 23
We went on to explain that islands are disfavored because they
lead to irregular city boundaries and because they “inhibit the

24 Id. ¶ 64.
25 Id. ¶ 67 (“As with all unincorporated islands, some
unincorporated peninsulas are prohibited because they impair or
inhibit the provision of services. 	Peninsulas that jut into
incorporated territory may leave only a narrow neck of land
through which the county or city must provide services.”).
26 Id.
27 Utah Code Ann. § 10-2-502.7(3)(c)(iii) (2007).
28 There is an open issue regarding whether a short-term
period of disconnection from one municipality, followed by pre-
ordained incorporation into another municipality, falls within
the statutory prohibition on “leav[ing] or creat[ing] one or more
islands . . . of unincorporated territory.” 	Id. 	Because
annexation is only permitted where a piece of land is, among
other things, a “contiguous, unincorporated area,” Id. § 10-2-
402(1)(a) (emphasis added), these statutes could be interpreted
to prevent disconnection and subsequent annexation of parcels of
land wholly situated between two municipalities. 	Because our
disposition of this case relies on the 2001 version of the
statute, we need not address this issue here.
No. 20080586 	8
ability of the responsible county to provide services.” 24 	We
drew on the clear prohibition of islands in the 2003 version of
the statutes in order to determine whether, and when, peninsulas
were similarly prohibited. 25 	We concluded, “some peninsulas are
too much like an island and therefore are prohibited.” 26
¶19 	Examining the statutory language again in the context
of this case, it is clear that this provision is meant to
prohibit islands of unincorporated territory. 	The statute
plainly states that the petitioners bear the burden of proving
that disconnection will not “leave or create one or more islands
. . . of unincorporated territory.” 27 	As a result of the 2003
amendments, a petition for disconnection must be rejected if
disconnection will result in an island. 28
¶20 	This conclusion is reinforced by examining the
structure of this section of the statute. 	As mentioned, the
petitioners are required to prove a number of things in order to
obtain disconnection. 	When a petitioner seeks to persuade the
court that the burdens on the municipality will not be increased,
or that disconnection will not make it unfeasible for the
municipality to continue operating, the court is compelled by

29 Id. § 10-2-502.7(4).
30 Id. § 10-2-502.7(4)(a) to (4)(h).
31 See id. § 10-2-502.7(3)(c)(iii).
32 Id. § 10-2-502.7(4).
33 Id.
9 	No. 20080586
statute to “consider all relevant factors.” 29 	The statute then
sets forth an illustrative list of factors that the legislature
considered relevant to this determination--such as the effect on
the “community as a whole,” “water services,” “law enforcement,”
and “other municipal services.” 30 	There are no similar factors
that the legislature considered relevant to determining whether
an island is created. 31
¶21 	More importantly, the statute makes this disparate
treatment quite conspicuous. 	These three criteria--that
disconnection will not increase the burdens on the municipality,
that disconnection will not make unfeasible the municipality’s
continued existence, and that disconnection will not create an
island--are grouped together and set forth at Utah Code
subsections 10-2-502.7(3)(c)(i), -502.7(3)(c)(ii), and -
502.7(3)(c)(iii). 	Yet, the section where the statute instructs
the court to consider all relevant factors explicitly refers to
the petitioners’ burden to prove the criteria set forth in
“Subsections (3)(c)(i) and (ii).” 32 	In other words, all three of
these criteria must be proved to support a petition for
disconnection. 	But only for two of them does the statute require
the court to undertake a multi-faceted inquiry into all relevant
factors. 33 	The creation of an island of unincorporated territory
is not subject to this intricate analysis regarding costs. 	The
disparate nature of this inquiry reinforces what is made clear by
the plain language of the 2003 amendments--if disconnection would
lead to an island of unincorporated territory, the petition must
be rejected.
¶22 	This stands in stark contrast to the disconnection
statute in effect in 2001. 	Where the 2003 version of the statute
elevates the creation of an island to a dispositive element of a
petitioner’s claim, the version of the statute in effect in 2001
groups it together with all of the other factors the court must
consider in assessing whether disconnection will increase the

34 Compare id. § 10-2-502.7(3)(c)(iii) (2007) with id. § 10-
2-503(2) (1999).
35 Id. § 10-2-503(1) (1999). 	To be precise, the 2001
version of the code required that a board of disinterested
commissioners, appointed by the court and working from their
independent factual findings, make this determination. 	The
commissioners would then report their findings to the district
court. 	But the court was free to reject their findings, and
section 10-2-505(4) required the court to “[c]onsider[] all the
evidence and the commissioners’ report” but then to make its own
independent finding as to whether the disconnection satisfied the
requirements of section 10-2-503. 	Because ultimate authority
rested with the district court, the fact that a body of
commissioners occupied an advisory role does not alter our
analysis of the substantive criteria for disconnection.
36 Id. § 10-2-503(2) (1999).
37 Compare id. § 10-2-502.7(4)(a)-(h) (2007) with id. § 10-
2-503(2)(a)-(i) (1999).
No. 20080586 	10
burdens borne by the municipality. 34 	The 2001 statute required
the court to determine “whether or not disconnection will leave
the municipality with a residual area within its boundaries for
which the cost, requirements, or other burdens of municipal
services would materially increase over previous years or for
which it would become economically or practically unreasonable to
administer as a municipality.” 35 	As discussed above, these two
criteria persist in almost identical form after the 2003
amendments. 	Like the 2003 version of the statute, the 2001
statute requires the court to “consider all relevant factors.” 36
And the 2001 version contains an almost identical list of factors
that the legislature considered relevant to this determination.
In fact, the only difference in this list of illustrative factors
is that, in assessing the burdens on the municipality, the 2001
statute requires the court to consider “whether or not islands or
unreasonably large or varied-shaped peninsular land masses result
within or project into the boundaries of the municipality from
which the territory is to be disconnected.” 37
¶23 	This difference is crucial: 	after the 2003 amendments,
the statute instructs the court to reject a petition if granting
disconnection will result in an island of unincorporated
territory; in 2001, the statute instructed the court to
“consider” whether the creation of an island, along with factors
like the effects on the “city or community as a whole,”

38 Id. § 10-2-503(2) (1999).
39 Olsen v. Samuel McIntyre Inv. Co., 956 P.2d 257, 261
(Utah 1998) (“An exception to the general rule against
retroactivity applies to changes which are procedural only, or
amendments which clarify statutes.” (citations omitted)).
40 See id. (holding that modified version of Workers’
Compensation Act could not be applied retroactively where the
rights and duties of the employer and the worker’s dependents had
been defined under the prior version of the law).
11 	No. 20080586
materially burdened the municipality. 38 	In other words, under
the 2001 statute, the creation of an island was not an
independently dispositive element of the petitioner’s claim. 	As
a legal matter, it was relevant only to the extent that it would
add to a city’s ongoing costs.
¶24 	There is a clear difference between a statute that
requires a court to consider this possibility, and a statute that
simply prohibits disconnection where an island of unincorporated
territory would be created. 	This difference lies at the crux of
our determination in this case. 	When the Harveys petitioned for
disconnection in 2001, the statute held open the possibility that
an island might be created that would not materially increase the
burdens of providing municipal services to the surrounding area.
After the 2003 amendments, that possibility is completely
foreclosed. 	Regardless of why the legislature chose to
extinguish this possibility, it is clear that the 2003 amendments
modified the criteria for disconnection.
B. 	The Differences in the Criteria for Disconnection Modified
the Substantive Rights of Landowners Seeking Disconnection
¶25 	Having identified the crucial difference between the
two versions of the statute, we must now determine whether those
differences modified substantive rights. 	If the changes were
procedural, or if the changes were meant to clarify preexisting
law, then retroactive application of the 2003 amendments is
appropriate. 39 	But if the changes were substantive, the Harveys
are entitled to have their petition resolved under the law in
effect at the time it was filed. 40 	We are persuaded that the
2003 amendments to these standards are not procedural. 	Nor do
they represent a mere clarification of the law in effect prior to
the amendments. 	Rather, we find that these changes alter the
substantive law--the “positive law which creates, defines and

41 Brown & Root Indus. Serv. v. Indus. Comm’n, 947 P.2d 671,
675 (Utah 1997) (quoting Wash. Nat’l Ins. Co. v. Sherwood
Assocs., 795 P.2d 665, 669 (Utah Ct. App. 1990)).
42 To support this assertion, Cedar Hills cites nearly two
dozen decisions spanning a century of disconnection cases,
including In re Barton, 92 P. 770 (Utah 1907); In re Fullmer, 92
P. 768 (Utah 1907); and Bluffdale Mountain Homes, LC v. Bluffdale
City, 2007 UT 57, 167 P.3d 1016. 	Only a small number of these
cases are relevant, though, because prior to 1977, disconnection
was permitted based on a court’s finding that “justice and
equity” would require it. 	Only after 1977 were courts required
to evaluate the creation of islands, along with other factors, to
determine the effect of disconnection. 	See Act of March 10,
1977, ch. 48, § 2, 1977 Utah Laws 220.
43 The small number of disconnection cases decided between
1977 and 2003 did not address whether the creation of an island
was fatal to a petitioner’s claim for disconnection. 	Rather, our
cases have treated this consideration as relevant to the broader
statutory inquiry into the burdens on the municipality and
whether justice and equity would be served by granting
disconnection. 	Thus, the petitions in those cases were granted,
or rejected, based on the district court’s findings regarding the
overall burden on the municipality. 	See In re Disconnection of
Certain Territory from Highland City (In re Disconnection from
Highland City), 668 P.2d 544, 546 (Utah 1983); In re
Disconnection of Territory & Restriction of the Corporate Limits
(continued...)
No. 20080586 	12
regulates the rights and duties of the parties and which may give
rise to a cause of action.” 41
¶26 	Cedar Hills argues in favor of retroactive application
based on both of these possible exceptions. 	It first asserts
that islands have always been prohibited under Utah Law, and that
the 2003 amendments to the disconnection statute were meant
merely to clarify that rule in the face of potentially ambiguous
statutory language. 42 	This argument is necessarily foreclosed by
our analysis of the plain statutory language. 	As we have
explained, the statutory language reveals clear substantive
differences in the treatment of petitions for disconnection when
granting the petition would result in an island of unincorporated
territory.
¶27 	Cedar Hills suggests that we have previously
interpreted the disconnection statute as prohibiting islands of
unincorporated territory. 43 	Thus, it asserts, the statutory

43 (...continued)
of Draper (In re Disconnection from Draper), 646 P.2d 699, 702-03
(Utah 1982); Cont’l Bank & Trust Co. v. Farmington City, 599 P.2d
1242, 1247 (Utah 1979). 	Although our line of cases may indicate
that disconnection has generally been denied in cases where an
island has been created, they do not indicate that disconnection
was denied because islands were created.
44 Specifically, Cedar Hills relies heavily on In re
Disconnection from Highland City and In re Disconnection from
Draper. 	In both of those cases, we noted that the lack of an
island was relevant to the minimal impact on the costs borne by
the city. 	In re Disconnection from Highland City, 668 P.2d at
546; In re Disconnection from Draper, 646 P.2d at 702-03. 	After
all, if no island is created by disconnection, then any increase
in costs cannot be attributed to the creation of an island. 	But
it does not follow that the creation of an island would
necessarily have increased these costs. 	Those cases simply did
not hold that the presence of an island would have been fatal to
disconnection.
13 	No. 20080586
language has always meant that islands are prohibited, and the
purpose of the 2003 amendments was merely to make this
prohibition clear. 	Cedar Hills also cites remarks by certain
legislators suggesting that no substantive change was intended by
the 2003 amendments.
¶28 	If we had interpreted prior versions of the statute as
prohibiting disconnection where it would result in an island of
unincorporated territory, Cedar Hills’ argument might have merit.
But we have never been presented with this issue until now. 44
And because the statutory language is clear, we decline the
invitation to weigh the relative weight of potentially
conflicting comments made by individual legislators. 	The 2001
statute clearly leaves open the possibility that disconnection of
some parcels of land will not burden the municipality, even if
the disconnection results in an island of unincorporated
territory. 	Because this possibility does not exist after the
2003 amendments, the statutory alteration did more than merely
clarify the prior version of the law.
¶29 	The changes introduced by the 2003 amendments also
cannot be characterized as procedural. 	The 2003 amendments were
qualitatively different from an alteration to the legal machinery
employed for determining the propriety of disconnection. 	Instead
of simply modifying how a disconnection petition is filed, for
example, these amendments altered the criteria for determining

45 See Municipal Disconnection Amendments, ch. 279, §§ 2-3,
6, 2003 Utah Laws 1283.
46 See Utah Code Ann. §§ 10-2-502 to -504 (1999).
47 See generally id. §§ 10-2-501 to -510 (2007).
48 See id. § 10-2-501.
49 Id. § 10-2-502.5.
50 Cedar Hills argues that it is “important to note that the
Harveys acquiesced in the procedural requirements of the 2003
Disconnection Statute.” 	With this, Cedar Hills appears to argue
that because the Harveys participated in a hearing with the Cedar
Hills city council, similar to the hearing contemplated by the
2003 version of the statute, they have also chosen to be governed
by the substantive standards set forth in the 2003 amendments.
This notion--that acquiescence in the procedural requirements in
a new version of a statute amounts to a waiver of substantive
rights under the prior version of the statute--is untenable. 	Our
precedent permitting procedural rights to be applied
retroactively presupposes that the substantive rights at issue
need not be bound up with the procedures used to vindicate them.
No. 20080586 	14
whether disconnection is allowed. 	This change is not merely
procedural.
¶30 	To be clear, the 2003 amendments altered more than just
the criteria at issue in this case. 	One such alteration arguably
satisfies our standard for a procedural change: 	the 2003
amendments did away with the requirement that the district court
appoint a board of commissioners. 45 	These independent
commissioners were previously appointed to evaluate the petition
for disconnection and to report their findings to the court. 46
After the 2003 amendments, the statute contains no reference to
these commissioners. 47 	Instead, the 2003 version of the statute
requires landowners, prior to presenting their petition to the
district court, to present their request for disconnection at a
public hearing before the municipality’s legislative body. 48
Only if the municipality persists in denying the disconnection
may a party file their petition in district court. 49 	Though we
need not decide the issue here, it appears that these changes
merely alter the legal mechanisms that a landowner must employ
before attempting to prove the viability of disconnection. 	Thus,
some portions of the 2003 amendments might fairly be said to be
procedural. 50 	But the arguably procedural nature of these

51 Utah Code Ann. § 10-2-505(3) (1999).
15 	No. 20080586
amendments does nothing to nullify the clearly substantive change
in the law that was enacted at the same time.
¶31 	The issue presented to us is whether the criteria for
disconnection were substantively modified, and we conclude that
they were. 	We find the two versions of the statute to be
substantively different with regard to the relative standards for
granting petitions for disconnection. 	After the 2003 amendments,
such petitions must be denied if disconnection will result in an
island of unincorporated territory. 	Under the statute in effect
in 2001, such petitions could be granted, so long as the island
would not materially increase the municipality’s burdens of
providing municipal services to the surrounding area. 	This
change in the law affected substantive rights, and therefore, the
2003 version of the statute should not be given retroactive
effect. 	We hold that the district court erred in its
interpretation of the disconnection statutes and that the 2001
version, as interpreted herein, should have been applied.
II. 	UNDER THE 2001 VERSION OF THE DISCONNECTION STATUTES, IT WAS
ERROR FOR THE DISTRICT COURT TO DENY THE HARVEYS’ PETITION
WITHOUT CONSIDERING WHETHER DISCONNECTION WOULD INCREASE THE
BURDENS BORNE BY CEDAR HILLS
¶32 	Having determined that the district court applied the
wrong statutory standard in resolving the Harveys’ petition, we
must next examine whether Cedar Hills was nevertheless entitled
to judgment as a matter of law. 	We conclude that the district
court’s judgment must be reversed, and the case must be remanded
for reconsideration of the Harveys’ petition for disconnection.
On remand, the district court must apply the disconnection
statute that was in effect in 2001. 	As our discussion has made
clear, those statutes do not prohibit disconnection merely
because it will result in the creation of an island of
unincorporated territory.
¶33 	The 2001 statute requires the court to make two key
determinations. 	First, under Utah Code section 10-2-505(3), the
petitioners must “prove the viability of the disconnection and
that justice and equity require that the territory be
disconnected.” 51 	Second, under sections 10-2-505(4) and 10-2-
503, the court must determine, as discussed at length throughout
this opinion, that the proposed disconnection will not “leave the
municipality with a residual area within its boundaries for which
the cost, requirements, or other burdens of municipal services
would materially increase over previous years or for which it

52 Id. § 10-2-503(1).
53 Id. § 10-2-503(2).
54 Id.
55 Id. § 10-2-503(2)(a) to (2)(g).
56 Id. § 10-2-503(2)(h).
57 Id. § 10-2-503(2)(i).
No. 20080586 	16
would become economically or practically unreasonable to
administer as a municipality.” 52 	In making this second
determination, the statute instructs the court to “consider all
relevant factors.” 53
¶34 	This requires the court to examine the “effect of
disconnection” on all of the factors listed in section 10-2-
503(2). 54 	These include the effect on the “community as a whole
[and] adjoining property owners,” as well as the effects on
existing and proposed public streets, sewer and water services,
“law enforcement,” and “zoning.” 55 	In addition to these specific
factors, the court must consider the impact of disconnection on
any “other municipal services.” 56 	Finally, the statute requires
the court to consider the effect on Cedar Hills of the creation
of “islands or unreasonably large or varied-shaped peninsular
land masses.” 57
¶35 	All of these factors will inform the district court’s
determination regarding whether the municipality will incur a
material increase in costs because of the disconnection. 	No
single factor is necessarily dispositive. 	To be sure, if the
city is required to rework its infrastructure for delivering
water or sewer services, the cost may be so burdensome that
disconnection should be denied. 	And the creation of an island of
unincorporated territory may contribute to these costs. 	The
creation of an island is also likely to be relevant when
examining the costs of building new roads or modifying law
enforcement services.
¶36 	But it is also entirely possible that a proposed
disconnection will have a minimal impact on the provision of
municipal services, even though an island will be created. 	Where
a parcel of land touches the border of a municipality, roads,
water lines, and sewer lines may not cross the parcel at all.
The other links that generally connect a particular parcel of
land and the municipality to which it belongs might also be

58 Id. § 10-2-503(2).
17 	No. 20080586
similarly attenuated. 	Further, the creation of easements or
licenses might be employed to mitigate changes that would
otherwise be materially burdensome for the municipality. 	Because
each parcel of land is unique, so too will be the relationship
between any given parcel of land and the municipality to which it
belongs. 	Thus, there is always the possibility that the presence
or absence of one particular piece of land might be immaterial to
the city’s cost of providing municipal services.
¶37 	Assessing the impact of disconnecting a particular
piece of land is necessarily a fact-intensive process. 	In view
of the complexity surrounding these determinations, the
disconnection statute directs the court to “consider all relevant
factors.” 58 	But because it believed that the creation of an
island was prohibited, the district court never examined these
factors. 	Rather, the impact of disconnection is a factual issue
that remains disputed, and this issue is material under the 2001
statute. 	As such, summary judgment in favor of Cedar Hills was
inappropriate. 	Because we are not in a position to undertake
this inquiry or to make the necessary factual determinations, we
must reverse the judgment of the district court and remand this
case for additional proceedings.
CONCLUSION
¶38 	If the Harveys’ disconnection petition had been filed
after the 2003 amendments to the disconnection statutes became
effective, the district court’s analysis would have been correct.
Those amendments require the court to deny a disconnection
petition if it will result in an island of unincorporated
territory. 	Prior to the 2003 amendments, creation of such an
island was simply one of many factors the court was required to
consider in assessing the viability of disconnection from the
point of view of the municipality. 	Because this difference
substantively altered the criteria for disconnection, the
district court was required to apply the disconnection criteria
in effect at the time the Harveys filed their petition.
¶39 	The disconnection statute in effect in 2001 required
the court to determine whether disconnection would lead to a
material increase in the burdens borne by Cedar Hills. 	The
district court did not reach this question; as such, it did not
undertake one of the key factual inquiries required by the 2001
statute. 	Because this unresolved issue made summary judgment
inappropriate, we reverse the judgment of the district court and
remand for further proceedings.

No. 20080586 	18
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¶40 	Chief Justice Durham, Justice Wilkins, Justice Parrish,
and Justice Nehring concur in Associate Chief Justice Durrant’s
opinion.