Wasatch County v. Utility Facility Review Board

2018 UT App 191
THE UTAH COURT OF APPEALS
WASATCH C OUNTY ,
Petitioner,
v.
U TILITY F ACILITY R EVIEW BOARD
AND R OCKY M OUNTAIN POWER ,
Respondents.
Opinion
No. 20160523-CA
Filed October 4, 2018
Original Proceeding in this Court
Scott H. Sweat and Tyler J. Berg, Attorneys
for Petitioner
Sean D. Reyes and Brent A. Burnett, Attorneys
for Respondent Utility Facility Review Board
D. Matthew Moscon, R. Jeff Richards, Heidi K.
Gordon, Attorneys for Respondent Rocky
Mountain Power
JUDGE D AVID N. M ORTENSEN authored this Opinion, in which
JUDGES GREGORY K. O RME and R YAN M. HARRIS concurred.
MORTENSEN, Judge:
Rocky 	Mountain 	Power 	(Rocky 	Mountain) 	sought 	a	¶1
conditional use permit from Wasatch County in order to erect
transmission towers and lines, but Wasatch County denied the
permit.1 The Utility Facility Review Board (the Board) thereafter
1. We issued an opinion in this case on January 5, 2018. See
Wasatch County v. Utility Facility Review Board, 2018 UT App 1,
414 	P.3d 	958. 	After 	a 	petition 	for 	rehearing 	was 	filed, 	we
(continued…)

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ordered Wasatch County to issue the permit. Wasatch County
sought a stay from the Board, which was denied. Wasatch
County then issued the conditional use permit and the power
transmission towers were constructed. Wasatch County did not
seek a stay from this court, nor did it delay issuance of the
permit or otherwise seek to stop the construction. Under the
circumstances of this case, we conclude that this proceeding for
judicial 	review has been rendered moot and, therefore, we
dismiss it.
BACKGROUND
Rocky Mountain obtained an easement over property (the	¶2
Property) 	owned 	by 	Promontory 	Investments 	LLC
(Promontory). The Property sits in both Summit and Wasatch
counties. Prior to the events giving rise to this case, Rocky
Mountain’s 	transmission 	line 	ran 	through 	a 	portion 	of 	the
Property located entirely within Summit County.
Rocky 	Mountain 	supplies 	power 	to 	one 	of 	the	¶3
fastest-growing regions of Utah, of which Summit and Wasatch
counties are part. Based on projected growth of the region,
Rocky Mountain has undertaken an ongoing project to increase
transmission 	capacity 	and 	create 	alternative 	transmission
pathways (the Project). Part of the Project requires building a
sixty-seven-mile 	transmission 	line. 	Only 	0.26 	miles 	of 	the
proposed line would sit in Wasatch County, on Promontory’s
land.
(…continued)
reconsidered that opinion and did not release it for publication.
Our previous opinion is therefore withdrawn, and we issue this
opinion in its place.

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The changed location—from the previous transmission	¶4
line location in Summit County to the new location in Wasatch
County—resulted from a request by Promontory after Rocky
Mountain 	approached 	it 	about 	upgrading 	the 	current
transmission line to a higher capacity one. Promontory asked
Rocky Mountain “to consider alternative siting locations on” the
Property. It is Rocky Mountain’s practice to accommodate such a
request from landowners, provided the landowner pays the cost
of 	relocation 	and 	the 	new 	location 	is 	acceptable 	to 	Rocky
Mountain. 	Accordingly, 	Rocky 	Mountain 	and 	Promontory
considered five alternative locations for the transmission line.
Promontory agreed to grant a new easement and pay additional
costs associated with constructing the new line in Promontory’s
preferred location along the south and east perimeters of the
Property—including the 0.26 miles of Wasatch County land. The
agreement between Promontory and Rocky Mountain included a
provision stating that if Rocky Mountain were unable to obtain
necessary permits, it could terminate the agreement and leave
the transmission line in its then-current location.
In its quest to obtain authorization for the construction of	¶5
the transmission line segment located in Wasatch County (the
Segment), 	Rocky 	Mountain 	was 	in 	frequent 	contact 	with
Wasatch County officials, planning staff, and nearby property
owners. Wasatch County consistently expressed concern about
the Segment’s compliance with existing ordinances aimed at
limiting structures that protrude above the visual ridgeline. In its
application 	for 	a 	conditional 	use 	permit,2 	Rocky 	Mountain
“included 	four 	options 	for 	the 	proposed 	alignment 	of 	the
transmission line in Wasatch County.” The Wasatch County
2. 	Rocky 	Mountain 	submitted 	multiple 	applications 	for
conditional use permits, which were withdrawn or continued for
a variety of reasons. We are concerned only with the final of
these applications, filed in September 2015.

Wasatch County v. Utility Facility Review Board
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Planning Commission (the Planning Commission) denied the
permit, 	concluding 	that 	none 	of 	the 	four 	options 	were
acceptable, as “there was no way to mitigate the impacts of [the
Segment] on neighboring properties.”
Rocky Mountain appealed the denial of the permit to the	¶6
Wasatch 	County 	Board 	of 	Adjustment 	(the 	Board 	of
Adjustment), which agreed with the Planning Commission. The
Board of Adjustment concluded that the proposed transmission
upgrade violated Wasatch County’s ridgeline ordinance and
likewise denied the permit.
Rocky 	Mountain 	then 	appealed 	to 	the 	Board, 	which	¶7
determined that the Segment was “needed to provide safe,
reliable, adequate, and efficient service” to Rocky Mountain
customers and ordered Wasatch County to issue the permit
within sixty days.
Wasatch County asked the Board for a stay of its order.	¶8
After the Board denied the request, Wasatch County issued the
conditional use permit to Rocky Mountain.3 Wasatch County
then sought judicial review of the Board’s order in this court, but
did not ask this court for a stay of that order pending the
outcome of judicial review.4 After briefing and oral argument
3. The conditional use permit contained conditions requiring
that: (1) tangent poles must be wood, if feasible; (2) poles were to
be designed to be as low as possible while maintaining industry-
standard spans and clearances; (3) “rust colored (cor-ten) metal”
poles were to be used at corner locations to avoid the use of guy
wires; and (4) conductors were required to be “non-specular.” In
the process of installing the transmission lines, Rocky Mountain
complied with these conditions.
4. Rule 17 of the Utah Rules of Appellate Procedure states in
pertinent part, “Application for a stay of a decision or order of
(continued…)

Wasatch County v. Utility Facility Review Board
20160523-CA 	5 	2018 UT App 191
before this court, we issued a decision and the Board filed a
petition for rehearing. In the briefing associated with the petition
for 	rehearing, 	the 	parties 	informed 	this court—for 	the 	first
time—that while the proceeding for judicial review had been
pending, the conditional use permit had been issued, the new
transmission lines had been constructed on the Segment, and the
lines were now in use. This court then ordered supplemental
briefing.
The supplemental briefing makes clear that the remedy	¶9
Wasatch County seeks is a determination that the conditional
use permit be rescinded and that the transmission towers be
dismantled and moved.
ANALYSIS
In our view, Wasatch County’s requested remedy is no	¶10
longer available, and therefore the dispute has been rendered
moot.
I. Mootness
“A case may be mooted on appeal if the relief requested is	¶11
rendered impossible or of no legal effect.” Transportation All.
Bank v. International Confections Co., LLC, 2017 UT 55, ¶ 15, 423
P.3d 1171 (cleaned up). In Transportation Alliance, our supreme
(…continued)
an agency pending direct review in the appellate court shall
ordinarily be made in the first instance to the agency if the
agency is authorized by law to grant a stay. If a motion for such
relief is made to the appellate court, the motion shall show that
application to the agency for the relief sought is not practicable,
or that application has been made to the agency and denied,
with the reasons given by it for denial.”

Wasatch County v. Utility Facility Review Board
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court held that an appeal was moot because a debtor failed to
seek a stay of an order approving a receivership sale. Id. ¶¶ 16–
17. 	The 	bank 	filed 	a 	complaint 	alleging 	breach 	of 	a 	loan
agreement and sought appointment of a receiver. Id. ¶ 2. Several
creditors of one of the defendants, International Confections,
intervened. Id. ¶ 3. The district court appointed a receiver, with
power to sell the assets of International Confections. Id. ¶ 4.
The 	bank 	settled 	its 	claims 	against 	International	¶12
Confections, and the district court dismissed the claims between
the bank and International Confections, but ordered that the
receiver stay in place. Id. ¶¶ 5–6. The receiver then accepted an
offer to buy International Confections’ assets. Id. ¶ 7. The district
court held an expedited hearing and approved the order of sale.
Id. ¶ 8. The buyer paid the agreed-upon price and began using
the assets. Id. ¶ 9. International Confections then filed a motion
under 	rule 	60 	of 	the 	Utah 	Rules 	of 	Civil 	Procedure 	to
“reactivate” the case and allow it to file an objection to the order
approving the sale. Id. ¶ 11; see Utah R. Civ. P. 60(b). The district
court denied the motion and International Confections appealed.
Id. ¶ 11.
The Utah Supreme Court dismissed the appeal as moot	¶13
because International Confections did not attempt to stay the
operation of the order. Id. ¶¶ 17, 23. Because the stay was not
sought, 	the 	court 	held 	that 	International 	Confections 	had
allowed the buyer to acquire the assets and that action (or
inaction) precluded the appellate court from granting the relief
sought. Id. ¶ 17; see also Kellch v. Westland Minerals Corp., 484 P.2d
726, 726 (Utah 1971) (dismissing an appeal as moot where, after
stock was sold during the pendency of the appeal, “[n]o steps
were taken by the defendants to stay the operation of the
judgment, nor did they supply a supersedeas bond”).
Similarly, in Richards v. Baum, 914 P.2d 719 (Utah 1996),	¶14
our supreme court found the failure to obtain a stay material to
the question of mootness. Id. at 722. In Richards, would-be real

Wasatch County v. Utility Facility Review Board
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estate 	purchasers 	sued 	to 	specifically 	enforce 	a 	real 	estate
purchase contract, but the district court ruled against them. Id. at
720. The purchasers did not obtain a stay and the sellers sold the
property to someone else. Id. The sellers then moved to dismiss
an appeal by the would-be purchasers as moot. Id. With no stay
sought, the Utah Supreme Court ruled that the case was moot
because the desired relief could no longer be granted. Id. at 722.
Although 	recognizing 	theoretically 	that 	a 	district 	court 	can
convert a quiet title action into one for damages, the court
nevertheless adopted the majority position taken throughout the
country that such a conversion in remedy cannot occur on
appeal.5 Id. at 721.
The court in Richards cited several other courts in support	¶15
of its holding, some of which parallel our case. For example, in
Masonry Arts, Inc. v. Mobile County Commission, 628 So. 2d 334
(Ala. 1993), and Westinghouse Electric Corp. v. Grand River Dam
Authority, 	720 	P.2d 	713 	(Okla. 	1986), 	public 	contracts 	were
awarded and the party that did not receive the contract sued.
When a stay on appeal was not sought, each court deemed the
appeal 	to 	be 	moot. 	See 	Masonry 	Arts, 	628 	So. 	2d 	at 	335;
Westinghouse Elec., 720 P.2d at 716.
Another case cited in Richards is Wagner v. Boggess Coal	¶16
& Supply Co., 94 N.E.2d 64 (Ohio Ct. App. 1950), which involved
a court-ordered dissolution of a corporation. Id. at 66. No stay
was sought, and the appeal was found to be moot. Id. Again,
5. In Richards v. Baum, 914 P.2d 719 (Utah 1996), our supreme
court noted that “‘if appellant[s] were seeking on this appeal to
prevent the foreclosure sale, and because of their failure to
obtain a stay of execution, the sale were legally carried out
during the pendency of the appeal and the time for redemption
had run, the appeal would be moot.’” Id. at 722 (quoting Franklin
Financial v. New Empire Development Co., 659 P.2d 1040, 1043
(Utah 1983)).

Wasatch County v. Utility Facility Review Board
20160523-CA 	8 	2018 UT App 191
perhaps theoretically the dissolution could have been undone,
but the court nonetheless determined the appeal was moot
where the appealing party did not use available procedural tools
to preserve the status quo.6 Id.
Furthermore, our research has identified additional case	¶17
law from other jurisdictions supporting a determination that the
dispute between Wasatch County and the Board is moot. In
Nextel West Corp. v. Franklin County Board of Zoning Appeals, No.
03AP-625, 2004 WL 1244339 (Ohio Ct. App. June 8, 2004), the
appellate 	court 	dismissed 	an 	appeal 	as 	moot 	where 	a
telecommunication 	facility 	was 	built 	without 	a 	stay 	being
sought. Id. at *3–4. The Ohio court agreed with other courts that
“where an appeal involves the construction of a building or
buildings and the appellant fails to obtain a stay of execution of
the [district] court’s ruling and construction commences, the
appeal is rendered moot.” Id. at *3 (cleaned up); see also J.R.
Francis Constr. Co. v. Pima County, 403 P.2d 934, 935 (Ariz. Ct.
App. 1965) (dismissing an appeal as moot where a contractor
sued after the county awarded a contract to another contractor
because the work was completed by the time the appellate court
decided the case and no stay was obtained); In re Save the Pine
Bush, Inc. v. Cuomo, 606 N.Y.S.2d 818, 860 (App. Div. 1994)
6. We recognize that Wasatch County sought a stay from the
Board. Courts, however, require parties to avail themselves of all
opportunities to preserve the status quo. See Town of Libertyville
v. Moran, 535 N.E.2d 82, 86 (Ill. App. Ct. 1989) (dismissing where
the party appealed a jury award for a condemnation action but
failed to protect its interest by moving for a stay); Montana Power
Co. v. Charter, 568 P.2d 118, 119 (Mont. 1976) (where transmission
towers and lines were completed, an appeal was determined to
be moot where the court found “nothing in the record to indicate
any further effort by the defendants to preserve the status quo
pending disposition of this appeal”).

Wasatch County v. Utility Facility Review Board
20160523-CA 	9 	2018 UT App 191
(dismissing an appeal as moot where petitioners failed to seek a
stay regarding a permit to operate a landfill).
Similarly, in Smola v. Legeza, No.2004-A0038, 2005 WL	¶18
3610480 (Ohio Ct. App. Dec. 29, 2005), the appellate court was
faced with a suit where a neighbor appealed a determination by
the board of zoning appeals to issue a zoning permit to a
landowner for construction of a new structure. Id. at *1. The
appellate court affirmed the district court’s dismissal because, at
the time of appeal, the structure had already been substantially
constructed. Id. at *7. The appellate court stated that “when an
appeal involves the construction of a building and the appellant
fails to obtain a stay of execution of the [district] court’s ruling,
and construction commences, the appeal is rendered moot.” Id.
Accordingly, abundant case law supports the proposition	¶19
that once construction (of, for instance, buildings or power lines)
has commenced, an appellant must avail itself of all avenues of
preserving 	the 	pre-construction 	status 	quo 	or 	risk 	the
construction rendering the appeal moot. Here, Rocky Mountain
sought a conditional use permit so that it could construct the
new transmission lines and towers. The Board issued the permit,
and Wasatch County did not even seek, much less obtain, a stay
from this court. As a result, the construction is complete and the
presence of the completed power lines, coupled with Wasatch
County’s failure to seek a stay, has rendered this proceeding for
judicial review moot.
II. Unavailable Remedy
We also conclude that under the circumstances of this	¶20
case, the specific remedy Wasatch County seeks—revocation of
the 	conditional 	use 	permit—is 	simply 	unavailable. 	Wasatch
County points to its county code, specifically Wasatch County
Code 16.23.06(D), and asserts that the conditional use permit that
it issued can be revoked and the transmission poles and lines
currently supplying power to customers can yet be removed.

Wasatch County v. Utility Facility Review Board
20160523-CA 	10 	2018 UT App 191
Wasatch County notes that the Planning Commission can revoke
or modify a conditional use permit if it finds that the use permit
was obtained by mistake of fact, misrepresentation, or fraud.
However, 	Wasatch 	County 	does 	not 	point 	to 	any 	facts 	or
allegations demonstrating that the conditional use permit here
was obtained by mistake of fact, misrepresentation, or fraud.
Accordingly, 	the 	county 	code 	provision 	on 	which 	Wasatch
County relies is inapplicable, and these circumstances bolster
our conclusion that this proceeding for judicial review has been
rendered moot.
CONCLUSION
The remedy Wasatch County seeks is no longer available,	¶21
and, therefore, the proceeding for judicial review is dismissed as
moot.