Utah County v. Ivie

2006 UT 33
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Utah County, No. 20040846
Plaintiff and Appellee,
v.
Kay J. Ivie, Devon R. Ivie,
Kristine J. Lee, Edward R. Lee,
Spring Canyon Limited Partnership; F I L E D
and Canyon Acres Limited Partnership,
Defendants and Appellants. May 26, 2006
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Fourth District, Provo Department
The Honorable James R. Taylor
No. 040401797
Attorneys: Jody K. Burnett, Salt Lake City, Robert J. Moore,
Provo, for plaintiff
M. Dale Jeffs, Provo, for defendant
---
DURRANT, Justice:
¶1 This is the second case in which Appellants
(collectively “Spring Canyon”) have appeared before us to
challenge local governments’ attempts to condemn Spring Canyon
property for the construction of a road. The road would connect
two Provo City streets over an island of unincorporated Utah
County. In the first case, Provo City v. Ivie, we held that
Provo City did not have the statutory or constitutional power
necessary to condemn Spring Canyon’s property because the
property is located in unincorporated Utah County. 2004 UT 30,
¶ 18, 94 P.3d 206. In this case, Spring Canyon disputes Utah
County’s action to condemn the same property and the district
court’s decision to grant Utah County immediate occupancy.
During the pendency of the appeal in Provo City, Utah County
contracted with Provo City (“the Agreement”) and agreed to
condemn Spring Canyon’s property if Provo City would pay the
expenses.

No. 20040846 2
¶2 In this interlocutory appeal, Spring Canyon makes three
main claims: first, that the condemnation action should be
dismissed because the Agreement either exceeded the contracting
parties’ authority or evidenced a bad faith attempt to circumvent
our decision in Provo City; second, that the district court
improperly granted immediate occupancy because Spring Canyon was
deprived of due process when Utah County failed to give notice of
its factual basis for seeking immediate occupancy and the
district court refused to allow discovery of that basis; and
third, that the district court improperly granted immediate
occupancy because Utah County’s proof of necessity was
inadequate.
¶3 Addressing these issues in turn, we first hold that
Utah County and Provo City had authority to enter the Agreement,
that this authority was not abrogated by the Interlocal
Cooperation Act, and that the Agreement does not demonstrate bad
faith. Second, we do not consider Spring Canyon’s claim under
the state constitution because Spring Canyon failed to adequately
brief it, and we conclude that the federal constitution is
satisfied where, as here, there is an adequate mechanism for
obtaining compensation. Third, we affirm the district court’s
order of immediate occupancy because Spring Canyon has not
demonstrated that the district court abused its broad discretion
in weighing the equities in this case.
BACKGROUND
¶4 In 1970, Utah County and Provo City first planned to,
at some point, build a collector street between Provo Canyon Road
at 4525 North and University Avenue at 4800 North. In June of
2002, traffic congestion in the area was such that Provo City
instituted a condemnation action to acquire the property needed
to build the road. Although the proposed road would connect two
Provo City streets, it would cross over an island of
unincorporated Utah County land owned by Appellants Kay J. Ivie,
Devon R. Ivie, Kristine J. Lee, Edward R. Lee, Spring Canyon
Limited Partnership, and Canyon Acres Limited Partnership
(collectively “Spring Canyon”). The district court in that case
originally granted an order of immediate occupancy, but,
following an interlocutory appeal, we reversed the order and held
that Provo City did not have the power to condemn land outside
its corporate boundaries because (1) Provo is not a charter city
and could therefore not avail itself of the extraterritorial
condemnation power granted in article XI, section 5(b) of the
Utah Constitution, and (2) no other then-existing statute granted

1 In response to our decision in Provo City v. Ivie, 2004
UT 30, 94 P.3d 206, the Legislature amended Utah Code section 10-
8-2 to allow noncharter cities to exercise the power of eminent
domain both inside and outside their city boundaries. See Utah
Code Ann. § 10-8-2(1)(b) to (d) (Supp. 2005). Although Utah
County’s brief notes this amendment, neither party argues that
this amendment has retroactive effect such that it would affect
this appeal. Our analysis therefore assumes that Provo City
lacked authority to condemn the property at the time of the
Agreement.
3 No. 20040846
them the power to do so.1 Provo City v. Ivie, 2004 UT 30, ¶ 18,
94 P.3d 206.
¶5 In May of 2003, during the pendency of its appeal,
Provo City entered into an agreement with Utah County purportedly
under the Interlocal Cooperation Act, Utah Code Ann. §§ 11-13-101
to -314 (2003 & Supp. 2005) (the “ICA”). The Agreement provided
that Utah County would condemn the necessary property, and Provo
City would pay all expenses required to do so. In May of 2004,
following the Court’s decision in Provo City v. Ivie, Utah County
filed the condemnation complaint and motion for order of
immediate occupancy that are at issue in this case. Spring
Canyon subsequently filed a motion to dismiss based on the theory
that Utah County was unlawfully “lend[ing] its condemning powers
to Provo City.” Prior to the September 1, 2004 hearing, Spring
Canyon also filed a motion to allow discovery and an objection to
the district court’s consolidating the hearings for the motion to
dismiss and the motion for order of immediate occupancy. On
September 14, 2004, the district court denied Spring Canyon’s
motion to dismiss and issued an order of immediate occupancy in
favor of Utah County. Spring Canyon then requested and was
granted leave to file this interlocutory appeal to challenge both
the denial of its motion to dismiss and the order of immediate
occupancy.
STANDARD OF REVIEW
¶6 Whether Utah County’s condemnation action should be
dismissed based on the Agreement is an issue of law, so we review
the district court’s decision for correctness. See Bearden v.
Croft, 2001 UT 76, ¶ 5, 31 P.3d 537. The issue of whether Spring
Canyon received due process is also an issue of law, so we grant
no deference to the district court’s decision. Vigil v. Div. of
Child & Family Servs., 2005 UT App 43, ¶ 7, 107 P.3d 716.
¶7 Although both parties to this appeal state that we
should review the third issue—-whether there was sufficient proof

2 Utah County asserts that, under Utah Code section 11-13-
219(5), the thirty-day statute of limitations for challenging the
validity of an interlocal agreement has expired and that Spring
Canyon is therefore barred from collaterally attacking the
agreement in this action. Because we hold that the Agreement
does not affect Utah County’s condemnation power, we do not
address this argument.
No. 20040846 4
to support the order of immediate occupancy—-under a clearly
erroneous standard, our prior cases have recognized that weighing
the equities of an order of immediate occupancy is largely a
discretionary function. Utah State Rd. Comm’n v. Friberg, 687
P.2d 821, 833 (Utah 1984). And we have noted that “[t]he
granting of a motion for immediate occupancy has been held by
this court primarily to be [within] the sound discretion of the
trial court, reversible only because of obvious abuse thereof.”
State v. Denver & Rio Grande W. R.R., 332 P.2d 926, 927 (Utah
1958). Thus, we apply the abuse of discretion standard to the
third issue in this case. We discuss each of these issues in
turn.
ANALYSIS
I. UTAH COUNTY’S AGREEMENT WITH PROVO CITY DOES NOT LIMIT ITS
POWER TO CONDEMN SPRING CANYON’S PROPERTY
¶8 Spring Canyon’s appeal of the district court’s denial
of its motion to dismiss depends entirely on the effect, if any,
that the Agreement between Utah County and Provo City has on Utah
County’s condemnation power.2 We will first discuss the validity
of the Agreement and whether it limits Utah County’s condemnation
power. We will then discuss whether Utah County satisfied the
requirements for exercising its condemnation power under Utah
Code section 78-34-4, and specifically whether the existence of
the Agreement mandates a finding of bad faith that undermines
Utah County’s condemnation authority.
A. Utah County and Provo City Were Authorized to Enter into the
Agreement Pursuant to Their General Contracting Power
¶9 Spring Canyon argues that because Provo City lacks the
power to condemn the subject property, both the Agreement and the
exercise by Utah County of its eminent domain power pursuant to
the Agreement were unlawful and invalid under the ICA. Spring
Canyon’s primary argument is that the ICA requires that all
parties to an agreement have the power to do everything
contemplated by the agreement. We conclude that local

5 No. 20040846
governments have authority to enter into agreements pursuant to
their general contracting powers so long as each entity does not
exceed its individual power, and, although the ICA provides for
contracting only where all parties to an interlocal agreement
have the power to do all acts under the agreement, the ICA does
not abrogate local governments’ general contracting power.
¶10 We first examine the limits of local governments’
general contracting power. Before the Legislature passed the ICA
in 1965, local governments had the power to contract with one
another under general powers granted by the state constitution
and various statutes. See Bair v. Layton City Corp., 307 P.2d
895, 902 & 902 n.8 (Utah 1957) (citing various constitutional and
statutory provisions that conferred authority for Layton City to
contract with North Davis County Sewer District); Utah Code Ann.
§ 10-1-202 (2003) (“Municipalities may . . . enter into contracts
. . . .”); id. § 17-50-302(1)(b) (2005) (“A county may . . .
provide services, exercise powers, and perform functions that are
reasonably related to the safety, health, morals, and welfare of
their inhabitants, except as limited or prohibited by statute.”).
The limit on these general contracting powers was presumably that
no governmental party to a contract could exceed its individual
powers in fulfilling its obligation under the contract. Thus,
two governmental entities of unequal power could contract in
their areas of inequality so long as neither exceeded its own
powers in performing the contract.
¶11 The Agreement in this case does not require any
performance by either Utah County or Provo City that is beyond
the individual authority of that entity. The terms of the
Agreement material to this appeal require Utah County to condemn
the property for the road and Provo City to pay the expenses of
condemnation, installation, and maintenance of the road. Utah
County has authority to condemn property under Utah Code section
17-50-302(2)(a)(ii). Provo City has authority “to appropriate
money for any purpose that, in the judgment of the municipal
legislative body, provides for the safety, health, prosperity,
moral well-being, peace, order, comfort, or convenience of the
inhabitants of the municipality.” Id. § 10-8-2(3) (Supp. 2005).
Paying for the construction and for the maintenance of a public
road certainly falls within Provo City’s authority under this
provision. Thus, absent the ICA, the Agreement is a valid
exercise of both Utah County’s and Provo City’s general
contracting powers. We are called upon to determine, however,
whether the ICA operates to limit these general contracting
powers.

No. 20040846 6
¶12 Spring Canyon argues that because the ICA, specifically
Utah Code section 11-13-212(1)(a), allows for interlocal
agreements only where each party has the power to do all acts
contemplated in the agreement, it must also preclude all other
agreements between local governmental entities. Utah County
counters that Spring Canyon’s proposed interpretation would lead
to logically inconsistent results because a local government
could condemn property for a street if a private party paid the
expenses, see 7 Patrick J. Rohan & Melvin A. Reskin, Nichols on
Eminent Domain, § 5.02[3] (3d ed. 2006), but could not do the
same where another local government pays the expenses. We
conclude that although the ICA does not provide a source of power
for cooperative action between local governments of unequal power
in their area of inequality, it also does not preclude local
governments from contracting with each other in these areas under
their general contracting power.
¶13 It is true that Utah Code section 11-13-212 only allows
agencies to contract with one another “to perform any service,
activity, or undertaking which each public agency . . . is
authorized by law to perform.” Utah Code Ann. § 11-13-212(1)(a)
(2003). We further stated in CP National Corp. v. Public Service
Commission that “the intent of the [ICA] appears to be to allow
the municipalities collectively to exercise powers which they
already possess individually.” 638 P.2d 519, 521 (Utah 1981).
But while these sources support Spring Canyon’s argument that the
ICA only authorizes contracting among local governments of equal
power, they do not support the argument that the ICA precludes
all other contracts between local governments. Spring Canyon
offers no evidence that the Legislature intended the ICA to have
that effect.
¶14 Indeed, the ICA’s stated purpose is “to permit local
governmental units to make the most efficient use of their powers
by enabling them to cooperate with other localities on a basis of
mutual advantage” and also “to provide the benefit of economy of
scale.” Utah Code Ann. § 11-13-102 (2003). This purpose
statement demonstrates that the Legislature intended the ICA to
expand rather than limit local governments’ ability to cooperate.
Additionally, we can find no provision of the ICA that removes
existing powers from local governments. Where the Legislature
has not clearly limited the general contracting powers of local
governments, we construe those powers broadly. State v.
Hutchinson, 624 P.2d 1116, 1126–27 (Utah 1980). Thus, the ICA
does not abrogate local governments’ power to contract among
themselves under their general contracting power.

7 No. 20040846
¶15 In sum, although the ICA did not empower Utah County
and Provo City to enter into the Agreement, the Agreement is
nevertheless valid under their general contracting powers. See
Utah Code Ann. § 10-1-202; id. § 17-50-302(1)(b). Having
determined that the ICA does not invalidate the Agreement, we now
discuss whether the agreement evidences bad faith such that we
must dismiss Utah County’s condemnation action.
B. Utah County Satisfied the Elements of Section 78-34-4
¶16 Spring Canyon argues that even if the condemnation is
not precluded by the ICA, the Agreement shows bad faith, and we
should therefore dismiss the condemnation action on that basis.
In addition to the requirement that the entity have the authority
to condemn property, Utah Code section 78-34-4 requires that “the
use to which [the property] is to be applied is a use authorized
by law . . . [and] the taking is necessary to such use.” Utah
Code Ann. § 78-34-4(1), (2) (2002); see also Utah State Rd.
Comm’n v. Friberg, 687 P.2d 821, 832 (Utah 1984). Utah County
has authority to condemn property under Utah Code section 17-50-
302(2)(a)(ii). Further, a public street is clearly “a use
authorized by law,” as specifically set forth in Utah Code
section 78-34-1(3). Therefore, only the question of necessity
remains at issue. Spring Canyon contends that the taking is not
necessary because Utah County is exercising its power of eminent
domain in bad faith.
¶17 In Bountiful v. Swift, we noted that the
“necessity . . . in opening a public street is a political
question and in absence of fraud, bad faith, or abuse of
discretion[,] action of [local governments] will not be disturbed
by the courts.” 535 P.2d 1236, 1238 (Utah 1975). From this
statement, Spring Canyon argues that bad faith precludes a
finding that a taking is necessary. We are not convinced that
Swift establishes that premise. Rather, Swift merely stands for
the proposition that, on evidence of bad faith, a court need not
defer to the legislative body on the question of necessity. Id.
But even were we to accept Spring Canyon’s interpretation, the
district court specifically found that Utah County did not
condemn the property in bad faith, and it is entitled to
deference on that finding. Indeed, we can only reverse the
district court’s finding that Utah County did not act in bad
faith if it is clearly erroneous. Warner v. DMG Color, Inc.,
2000 UT 102, ¶ 21, 20 P.3d 868 (“[I]t is within the discretion of
the trial court to determine whether an action is asserted in bad
faith, and we therefore review such a determination under the
clearly erroneous standard.”).

No. 20040846 8
¶18 In this case, there is both scant evidence of bad faith
and ample evidence of good faith. Spring Canyon argues that Utah
County’s motive in bringing this action was only to help Provo
City circumvent our decision in Provo City v. Ivie. While
circumventing that decision was clearly an objective of the
Agreement, it was not the only objective of the condemnation
action. Utah County has a substantial interest in minimizing
traffic congestion within its boundaries. Citizens of Utah
County, as well as Provo City, will benefit from the road. The
fact that Utah County waited until Provo City discovered it could
not condemn the property, and the fact that Provo City will be
paying the expenses are more indicative of prudent fiscal
management than bad faith. It would be folly for the county to
have its taxpayers pay to condemn and construct this road where
Provo City is ready and willing to cover that expense. As there
is evidence that Utah County had legitimate reasons for
condemning the property at issue, we affirm the district court’s
finding that there was no bad faith. Accordingly, Utah County’s
legislative finding that this condemnation is necessary “will not
be disturbed.” Swift, 535 P.2d at 1238.
¶19 Because the ICA did not prohibit Utah County and Provo
City from entering into the Agreement, and because Utah County
satisfied the statutory requirements to condemn the property, we
hold that the district court correctly denied Spring Canyon’s
motion to dismiss.
II. SPRING CANYON’S DUE PROCESS RIGHTS WERE NOT INFRINGED
¶20 Spring Canyon argues due process violations under both
the state and federal constitutions. Spring Canyon argues first
that it did not receive adequate notice of the immediate
occupancy hearing because Utah County’s motion did not specify
any factual basis for requiring immediate occupancy, and second,
that it was denied any opportunity to conduct discovery to find
the factual basis. Utah County counters that there was no
violation of due process because the order of immediate occupancy
is merely interlocutory and additional process will be had prior
to the final judgment on the merits. We decline to address
Spring Canyon’s state constitutional due process claims because
they are inadequately briefed, and we conclude that the federal
Due Process Clause does not require the notice or discovery
Spring Canyon seeks.
¶21 Both the state and federal constitutions prohibit the
state from depriving any person of “life, liberty, or property”
without “due process of law.” U.S. Const. amend. XIV (“[N]or
shall any State deprive any person of life, liberty, or property,

9 No. 20040846
without due process of law.”); Utah Const. art. I, § 7 (“No
person shall be deprived of life, liberty or property, without
due process of law.”). We have held that, in some circumstances,
article I, section 7 of the Utah Constitution requires a
different level of process than the federal Due Process Clause.
See, e.g., Foote v. Utah Bd. of Pardons, 808 P.2d 734, 735 (Utah
1991) (affording more protection under the Utah Due Process
Clause than its federal counterpart in proceedings before the
board of pardons); State v. Guzman, 2006 UT 12, ¶ 16, ___ P.3d
___ (noting that the due process analysis of eyewitness testimony
under the Utah Constitution is different than the federal
analysis). Although Spring Canyon claims a violation of both the
state and federal constitutions, we decline to address its state
constitutional claim because Spring Canyon has not briefed that
claim “as an issue separate and distinct from its federal
counterpart.” State v. Rynhart, 2005 UT 84, ¶ 12, 125 P.3d 938;
see also Midvale City Corp. v. Haltom, 2003 UT 26, ¶ 75, 73 P.3d
334 (“Without analysis, the court can make no informed decision
regarding whether the state constitutional provision in question
was intended to mirror its federal counterpart, or whether it was
intended to expand the scope of First Amendment guarantees.”).
Our due process analysis is therefore based solely on the federal
constitution.
¶22 The hallmarks of due process are notice and an
opportunity to be heard, but not all proceedings demand the same
level of process. Mathews v. Eldridge, 424 U.S. 319, 334, 348–49
(1976). The level of process required generally depends on the
following factors:
First, the private interest that will be
affected by the official action; second, the
risk of an erroneous deprivation of such
interest through the procedures used, and the
probable value, if any, of additional or
substitute procedural safeguards; and
finally, the Government’s interest, including
the function involved and the fiscal and
administrative burdens that the additional or
substitute procedural requirement would
entail.
Id. at 335. In eminent domain proceedings, however, courts have
been reluctant to read in any protections from the federal Due
Process Clause beyond those already provided by the Just
Compensation Clause of the Fifth Amendment. Miller v. Campbell
County, 945 F.2d 348, 352 (10th Cir. 1991). This reluctance is
predicated, at least in part, on a concern over “impos[ing] new

No. 20040846 10
and potentially inconsistent obligations upon the parties under
the substantive or procedural components of the Due Process
Clause.” Id.; see also Bateman v. City of W. Bountiful, 89 F.3d
704, 709 (10th Cir. 1996). In this vein, the United States
Supreme Court has stated in dicta that “[u]nlike the Due Process
Clause . . . the Just Compensation Clause has never been held to
require pretaking process or compensation,” Williamson County
Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 195 n.14
(1985), and many federal circuit courts have held “that a
sovereign vested with the power of eminent domain may exercise
that power consistent with the [C]onstitution without providing
prior notice, hearing, or compensation, so long as there exists
an adequate mechanism for obtaining compensation,” Collier v.
Springdale, 733 F.2d 1311, 1314 (8th Cir. 1984); accord Rex
Realty Co. v. City of Cedar Rapids, 322 F.3d 526, 529 (8th Cir.
2003); Miller, 945 F.2d at 352; Stringer v. United States, 471
F.2d 381, 383 (5th Cir. 1973). Thus, we conclude that because
Utah County has authority to condemn the property and there is a
mechanism in place for Spring Canyon to obtain compensation,
Spring Canyon has no claim under the federal Due Process Clause.
III. THE DISTRICT COURT WAS WITHIN ITS DISCRETION IN ORDERING
IMMEDIATE OCCUPANCY
¶23 Having determined that Spring Canyon’s due process
rights were not infringed, we must now decide whether the
district court abused its discretion in granting immediate
occupancy to Utah County based on the proof of necessity before
it. Utah Code section 78-34-9 provides that a district court
shall “take proof by affidavit or otherwise of: (i) the value of
the premises sought to be condemned; (ii) the damages that will
accrue from the condemnation; and (iii) the reasons for
requiring a speedy occupation.” Utah Code Ann. § 78-34-9(2)(a)
(Supp. 2005). After receiving that proof, the court may “grant
or refuse the motion according to the equity of the case and the
relative damages that may accrue to the parties.” Id. § 78-34-
9(2)(b). As stated above, supra ¶ 7, the district court is
given broad discretion to determine whether the equities weigh
in favor of or against a condemner’s motion for order of
immediate occupancy. See Utah State Rd. Comm’n v. Friberg, 687
P.2d 821, 833 (Utah 1984); Bountiful v. Swift, 535 P.2d 1236,
1238 (Utah 1975). And when a local government uses its power of
eminent domain for a public road, we have held that the
“expediency of appropriating any particular property is not a
subject of judicial cognizance.” Utah Dep’t of Transp. v. G.
Kay, Inc., 2003 UT 40, ¶ 11, 78 P.3d 612 (internal quotaton
marks omitted) (emphasis added); see also Swift, 535 P.2d at
1238 (“The expediency . . . in opening a public street is a

3 Significantly, we have only reversed one order of
immediate occupancy for a reason other than lack of authority to
condemn. See Utah Dep’t of Transp. v. Hatch, 613 P.2d 764, 765
(Utah 1980). In Hatch, we considered UDOT’s condemnation of
billboards as part of a highway beautification program. The
district court entered an order of immediate occupancy but did
not enter any findings in support of its order. Upon review of
(continued...)
11 No. 20040846
political question and in the absence of fraud, bad faith, or
abuse of discretion . . . will not be disturbed by the
courts.”). We must first determine the burden of production
contemplated by section 78-34-9, and then determine whether the
district court abused its discretion in finding that Utah County
met that burden in this case.
¶24 Spring Canyon argues that this Court’s precedent
requires a condemner to show “considerable” or “ample” evidence
of the reasons for requiring a speedy occupation. In support of
its position, Spring Canyon cites Swift, 535 P.2d at 1238, and
Utah Department of Transportation v. Fuller, 603 P.2d 814, 817
(Utah 1979). Spring Canyon reads these cases too broadly.
Instead of setting the threshold burden that the condemner must
meet to merit immediate occupancy, these cases merely hold that
the “considerable” supporting evidence in Swift, 535 P.2d at
1238, and the “ample” supporting evidence in Fuller, 603 P.2d at
817, were enough to satisfy the applicable burden.
¶25 In contrast, Utah County argues that this Court’s
precedent requires a condemner to show merely “some evidence”
that the prima facie elements exist, and cites Friberg, 687 P.2d
at 833, and Cornish Town v. Koller, 817 P.2d 305, 308 (Utah
1991), for its position. But Utah County also reads these cases
too broadly. Both Friberg and Cornish Town require a “prima
facie showing of the right to condemn,” but neither case
addresses what showing need be made with respect to the elements
of section 78-34-9. Friberg, 687 P.2d at 833; accord Cornish
Town, 817 P.2d at 308.
¶26 We conclude that the condemner need only present prima
facie evidence of the elements of subsection 78-34-9(2)(a)(i) to
(iii). This relatively light burden of production stems from
appropriate deference to legislative action. See G. Kay, Inc.,
2003 UT 40, ¶ 11 (noting the wide discretion usually given
government in exercise of its eminent domain power). It is
because of this deference that the practice of granting orders
of immediate occupancy “has been considered routine.” State v.
Denver & Rio Grande W. R.R., 332 P.2d 926, 927 (Utah 1958).3 In

3 (...continued)
the record, we concluded “as a matter of law” that the facts
could not support immediate occupancy. Id. Our opinion in Hatch
does not make clear what facts in that case precluded, as a
matter of law, an order of immediate occupancy. It bears noting,
however, that Hatch did not deal, as this case does, with a local
government’s using its condemnation power for the ordinary
purpose of constructing a road. See Bountiful v. Swift, 535 P.2d
1236, 1238 (Utah 1975).
No. 20040846 12
essence, where there is no “fraud, bad faith, or abuse of
discretion,” Swift, 535 P.2d at 1238, and the condemner has
presented prima facie evidence both of its authority to condemn
and of the elements found in subsections 78-34-9(2)(a)(i) to
(iii), the condemner’s decision to seek immediate occupancy
should be respected by the courts.
¶27 In light of this deferential standard, local
governments are, in large part, left to assess the wisdom of
seeking immediate occupancy. Taking immediate occupancy entails
some risk because “an order of immediate occupancy is
interlocutory and is subject to change should the trial court
become convinced of the need to do so.” Cornish Town, 817 P.2d
at 309. Often, as in this case, the government seeks immediate
occupancy in order to immediately commence construction. If the
district court later determines that condemnation was not
appropriate, then there will likely already be substantial
damage to the property that a condemner would be required to
repair. Spring Canyon argues that this type of damage would be
irreparable. Where possession of the property could be returned
to the owner, and where the property could be restored, albeit
at great expense, to its pre-immediate-occupancy-order state,
the damage inflicted is not properly characterized as
irreparable. Ultimately, the courts’ liberality in granting
orders of immediate occupancy merely recognizes that, by filing
a motion for immediate occupancy, the condemner assumes the risk
that the court may ultimately find against it and require it to
incur substantial expense in restoring the property. Although
that risk is almost always small, it still serves to deter
governmental entities from needlessly seeking immediate
occupancy.
¶28 Applying this deferential burden to this case, we
conclude that Utah County satisfied its burden of production,
and thus, that the district court did not abuse its discretion
by ordering immediate occupancy. Utah County presented evidence
that the road would relieve traffic congestion, and the district
court specifically stated in its findings that “roads are much

13 No. 20040846
easier and less costly to construct during the non-winter
seasons.” Although the evidence is hardly overwhelming, we
cannot conclude that the district court abused its discretion by
deciding that the equities weigh in favor of Utah County.
CONCLUSION
¶29 We affirm the district court on all three issues before
us. First, the Agreement between Provo City and Utah County
does not give cause to disturb Utah County’s exercise of its
eminent domain power because the Agreement is valid under the
entities’ general contracting authority and does not evidence
bad faith. Thus, the district court’s denial of Spring Canyon’s
motion to dismiss was appropriate. Second, we conclude that,
where a local government has authority to condemn, the federal
constitution requires only that a property owner have an
adequate mechanism for obtaining compensation. There is such a
mechanism here. We decline to address Spring Canyon’s state
constitutional claim because it was inadequately briefed.
Third, we affirm the district court’s order of immediate
occupancy because Utah County presented prima facie evidence of
the elements of section 78-34-9(2) and Spring Canyon has not
shown that the district court abused its broad discretion in
weighing the equities under that section. We affirm and remand
for further proceedings in accordance with this opinion.
---
¶30 Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Parrish, and Justice Nehring concur in Justice Durrant’s
opinion.