Living Rivers v. San Juan County

2024 UT App 162

THE UTAH COURT OF APPEALS

LIVING RIVERS,
Appellant,
v.
SAN JUAN COUNTY AND OLD TOWN, LLC,
Appellees.

Opinion
No. 20230411-CA
Filed November 7, 2024

Seventh District Court, Monticello Department
The Honorable Don M. Torgerson
No. 220700026

Christina R. Sloan, Attorney for Appellant
Douglas C. Shumway, Amy C. Walker, and Jens P.
Nielson, Attorneys for Appellees

JUDGE AMY J. OLIVER authored this Opinion, in which
JUDGES GREGORY K. ORME and DAVID N. MORTENSEN concurred.

OLIVER, Judge:

¶1 In 2022, the San Juan County Planning Commission (the
Commission) approved Old Town, LLC’s (Old Town) application
for a conditional use permit for tent camping on a 240-acre
property (the Property) in Upper Mill Creek Canyon. Living
Rivers, a nonprofit corporation, filed an administrative appeal of
the Commission’s grant of the permit. The San Juan County
Appeal Authority (the Appeal Authority) determined that Living
Rivers lacked standing and dismissed the appeal. Living Rivers
filed a petition for judicial review, and Old Town moved to
dismiss. The district court granted the motion, concluding that
associational standing was not available under the County Land
Use, Development, and Management Act (CLUDMA), Utah Code
section 17-27a-701 et seq., and that Living Rivers lacked both
Living Rivers v. San Juan County

traditional and statutory standing under CLUDMA. While we
conclude that the district court’s determination that associational
standing is unavailable under CLUDMA is erroneous, we
nevertheless affirm the district court’s dismissal of Living Rivers’s
petition for review for lack of statutory standing.

BACKGROUND

¶2 In December 2021, Old Town applied for a conditional use
permit from San Juan County to allow tent camping by students
from Wyoming Catholic College (the College) on the Property in
Upper Mill Creek Canyon. The Property is zoned for agricultural
use and sits on the Glen Canyon aquifer, which is designated by
the Environmental Protection Agency and the Utah Water Quality
Board as a sole-source aquifer for the culinary water supply for
over 10,000 residents of Grand County and the northern areas of
San Juan County. Mill Creek, which passes through the Property,
is a tributary of the Colorado River and Glen Canyon aquifer. Mill
Creek’s water serves as a backup source of culinary water for the
City of Moab, Grand County Water and Sewer Service District,
and San Juan County.

¶3 In January and February 2022, the Commission held two
public hearings on Old Town’s permit request. Members of the
public, including Living Rivers’s director (the Director),
participated in both hearings. 1 At the close of public comment in

1. Living Rivers is a Utah nonprofit corporation focused on the
management of surface and groundwater supplies in the
Colorado River Basin, specifically the central part of the Colorado
Plateau that spans Grand and San Juan counties. Living Rivers
seeks to protect the Colorado River Basin’s resources by funding
monitoring activities and groundwater studies, retaining experts
to inform decision-makers, and educating the public. Living
Rivers relies on donations and pro bono services from its
(continued…)

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the January meeting, the commissioners unanimously voted to
table the permit so Old Town could provide more information
about its agreement with the College, as well as more information
about the fire risk and the access road.

¶4 At the February meeting, Old Town presented the
agreement that allowed the College to use the Property for
camping. The agreement had an attached Exhibit A, which
included rules and regulations for the College’s use of the
Property, with rules related to campfires, water use, waste
removal, campsite locations, group size, property access, and
permitted activities. Old Town also provided more information in
a written statement addressing some of the Commission’s
concerns from the January meeting. After allowing additional
public comment on the application, the Commission
unanimously approved the permit with the conditions listed in
Exhibit A.

¶5 Living Rivers appealed the Commission’s decision to the
Appeal Authority. In its appeal, Living Rivers argued
(1) overnight accommodations are not allowed as either a
permitted or conditional use under San Juan County’s zoning
ordinance, (2) the Commission did not make the required written
findings, and (3) the Commission’s decision was not supported by
substantial evidence. Old Town intervened in the action and
moved to dismiss the appeal, which San Juan County joined,
arguing Living Rivers lacked standing under CLUDMA. Living
Rivers opposed the motion and provided a declaration from the
Director, who is a resident of Grand County, in support of its
standing. In addition to stating that the Director would personally
suffer harm from the permit, the declaration described grants that
Living Rivers had received to conduct research in the area,
investments Living Rivers had made in monitoring and

members to accomplish its mission. Many of Living Rivers’s
members reside in Grand and San Juan counties.

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protecting water sources in the region, and donations and pro
bono hours contributed by volunteers. The declaration also stated
the permit would harm members of Living Rivers who reside in
Grand and San Juan counties due to

• “contamination of our sole source drinking water
aquifer from human waste management”;

• “contamination of Mill Creek surface water from
human waste[,] . . . increased erosion,
sedimentation, and other contaminants from
egress/ingress through several creek crossings to
access the [P]roperty”;

• “significant harm to the Mill Creek watershed . . .
from high wildfire potential and very limited to
impossible access for firefighting and control”;

• “[w]asted donations and efforts to ensure that
public waters, including Mill Creek . . . will be
protected from contamination.”

¶6 The Appeal Authority dismissed Living Rivers’s appeal,
determining that Living Rivers lacked standing. The Appeal
Authority found most of Living Rivers’s allegations of harm were
not different in kind or distinct from those of the general
community. While the Appeal Authority did find that the wasted
donations and conservation efforts by Living Rivers members
were distinct allegations of harm, the Appeal Authority
determined that the mitigation and supervision measures put in
place by Old Town and the opportunity for Living Rivers to
“support” San Juan County in the continuing land use regulation
of the Property made the probability of harm low, concluding that
Living Rivers failed to meet the statutory requirement of the harm
being inevitable.

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Living Rivers v. San Juan County

¶7 Living Rivers filed a petition for judicial review of the
Appeal Authority’s dismissal pursuant to CLUDMA, which
provides that “a land use applicant or adversely affected party
may file a petition for review of a land use decision with the
district court within 30 days after the decision is final.” Utah Code
§ 17-27a-801(2)(a). Old Town filed a motion to dismiss and for
summary judgment that San Juan County joined, arguing Living
Rivers was not an “adversely affected party” as defined by
CLUDMA.

¶8 After hearing oral argument, the district court granted Old
Town’s motion to dismiss, concluding Living Rivers lacked both
traditional standing and statutory standing under CLUDMA. The
district court also concluded that CLUDMA does not allow for
associational standing.

ISSUE AND STANDARD OF REVIEW

¶9 Living Rivers contends the district court erroneously
granted Old Town’s motion to dismiss. We review a district
court’s “grant of a motion to dismiss for correctness, granting no
deference to the decision of the district court.” Gregory v. Shurtleff,
2013 UT 18, ¶ 8, 299 P.3d 1098 (cleaned up).

ANALYSIS

¶10 Living Rivers presents three arguments on appeal. First,
Living Rivers argues the district court erred by determining that
CLUDMA does not have a mechanism for associational standing,
which would require Living Rivers to establish its own standing
separate from its members. Living Rivers next argues the district
court erred by requiring the associational standing of a
nonprofit’s members to be pled by affidavits from the members
themselves instead of by a declaration by an executive of the
nonprofit. Finally, Living Rivers argues the district court erred in

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determining “[a] non-profit organization cannot prove distinct
and palpable injuries of its members without assigning specific
injuries to specific members by name.” We address these
arguments below.

I. Standing

¶11 “In Utah, . . . standing is a threshold jurisdictional
requirement.” McKitrick v. Gibson, 2021 UT 48, ¶ 17, 496 P.3d 147
(cleaned up). When seeking relief under a Utah statute or alleging
that statutory requirements were violated, “statutory standing is
an initial ‘hurdle’ that a plaintiff must clear before a court
proceeds to examine whether the plaintiff has shown traditional
standing.” Bleazard v. City of Erda, 2024 UT 17, ¶ 43, 552 P.3d 183;
see also Erda Cmty. Ass’n v. Grantsville City, 2024 UT App 126,
¶¶ 25–26 (stating that “claimants must demonstrate both statutory
standing and traditional standing” when bringing an action
pursuant to statute). The standing analysis thus begins with
statutory standing, with traditional standing only assessed “if
statutory standing is present.” Grantsville City, 2024 UT App 126,
¶ 28. 2

A. Associational Standing Under CLUDMA

¶12 Under CLUDMA, “an adversely affected party may”
appeal the decisions of a land use authority “by alleging that there
is error in any order, requirement, decision, or determination
made by the land use authority.” Utah Code § 17-27a-703(1). The
term “adversely affected party” is statutorily defined by
CLUDMA as “a person” who either “(a) owns real property
adjoining the property that is the subject of a land use application
or land use decision” or “(b) will suffer a damage different in kind

2. Living Rivers asserts only statutory claims under CLUDMA.
Therefore, because we find that Living Rivers does not have
statutory standing under CLUDMA, we need not reach the issue
of whether Living Rivers has traditional standing.

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than, or an injury distinct from, that of the general community as
a result of the land use decision.” Id. § 17-27a-103(2). 3 “Person”
under CLUDMA is defined broadly to mean “an individual,
corporation, partnership, organization, association, trust,
governmental agency, or any other legal entity.” Id. § 17-27a-
103(52). Living Rivers, a nonprofit corporation, is therefore a
“person” under CLUDMA. And in Tooele County v. Erda
Community Ass’n, 2022 UT App 123, 521 P.3d 872, this court held
that an association that met the definition of a person under
CLUDMA could have associational standing if the association’s
“individual members have standing” and “participation of the
individual members is not necessary to the resolution of the case.”
Id. ¶¶ 28–30 (cleaned up).

¶13 Forbidding a corporation like Living Rivers from
establishing associational standing through its members under
CLUDMA would go against the language of the statute that
allows all “person[s]”—which expressly includes corporations—
who are adversely affected to appeal land use decisions. Utah
Code § 17-27a-103(2), (52). Therefore, we confirm that
associational standing is available under CLUDMA, and
organizations that seek to establish statutory standing do not need
to establish statutory standing independent of their members.

¶14 Old Town and San Juan County (collectively, Appellees),
however, rely on Tooele County in arguing on appeal that Living
Rivers nevertheless does not have standing under CLUDMA
because Living Rivers’s individual members had not exhausted
their administrative remedies as required by CLUDMA. See id.

3. Utah Code section 17-27a-103 was amended after Living Rivers
filed its appeal of the Commission’s decision to the Appeal
Authority. Compare Utah Code § 17-27a-103, with id. § 17-27a-103
(2021). Because the amendments are immaterial to the dispute in
front of us, we cite the current version of the code for convenience.

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Living Rivers v. San Juan County

§ 17-27a-703(1). 4 Appellees are correct that in Tooele County, we
held that because the association itself failed to exhaust its
administrative remedies under CLUDMA, the district court
lacked subject matter jurisdiction over the association’s appeal.
See 2022 UT App 123, ¶¶ 28–30, 50. However, the facts here are
distinguishable.

¶15 In Tooele County, the Tooele County Planning Commission
approved two applications from a developer for conditional use
permits “to develop two parcels of land.” Id. ¶ 4. In response, over
one hundred residents of Erda, in their individual capacities,
signed the administrative appeals of the Tooele County Planning
Commission’s approvals. Id. ¶ 5. And while some of the
individuals who signed the administrative appeal in their
individual capacity were members of the Erda Community
Association, the association itself was not “listed as a party to
either of [the administrative] appeals.” Id. After the
administrative appeals were denied on their merits, id. ¶ 6, the
Erda Community Association “filed a petition in district court
seeking review” of the administrative appeals, but notably none
of the individuals who signed the administrative appeals joined
the judicial review petition or “separately sought judicial review,”
id. ¶ 7. Because none of the individuals who signed the
administrative appeals joined the petition for review in district
court and because the association itself did not timely seek

4. Although Living Rivers did not argue that Appellees failed to
preserve the issue of whether Living Rivers had exhausted its
administrative remedies, we have serious misgivings about its
preservation. But “because our preservation requirement is self-
imposed . . . and one of prudence rather than jurisdiction,” we
choose to exercise our “wide discretion when deciding to
entertain or reject matters that are first raised on appeal[,]” and
decide this issue on the merits because we can easily do so. Fort
Pierce Indus. Park Phases II, III & IV Owners Ass’n v. Shakespeare,
2016 UT 28, ¶ 13, 379 P.3d 1218 (cleaned up).

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administrative review, we concluded that the district court did
not have subject matter jurisdiction over the case. Id. ¶ 29.

¶16 Here, unlike in Tooele County, the same party—Living
Rivers—participated in both the administrative appeal of the
permit and the judicial appeal. As the Appellees pointed out in
their brief, CLUDMA requires a person to “exhaust[] the person’s
administrative remedies,” Utah Code § 17-27a-801(1), by filing an
“appeal [of] that decision to the appeal authority” before
challenging a land use decision in district court, id. § 17-27a-
703(1). As we discussed previously, see supra ¶¶ 12–13, Living
Rivers meets the definition of “person” under CLUDMA because
it is a nonprofit corporation. See Utah Code § 17-27a-103(52)
(stating a “person” can be “an individual, corporation,
partnership, organization association, trust, government agency,
or any other legal entity”). Therefore, because Living Rivers filed
both the administrative appeal and the challenge in district court,
Living Rivers properly exhausted its required administrative
remedies.

B. Statutory Standing Under CLUDMA

¶17 Having determined that Living Rivers may assert
associational standing under CLUDMA, we now turn to whether
Living Rivers has established statutory standing. Only “land use
applicant[s], board[s] or officer[s] of the county, [and] adversely
affected part[ies]” have statutory standing to appeal a land use
authority’s decision under CLUDMA. Utah Code § 17-27a-703(1).
An “adversely affected party” is “a person other than a land use
applicant” that “(a) owns real property adjoining the property
that is the subject of a land use application or land use decision;
or (b) will suffer a damage different in kind than, or an injury
distinct from, that of the general community as a result of the land
use decision.” Id. § 17-27a-103(2).

¶18 Here, neither Living Rivers itself nor any of its members
own land adjoining the Property, so Living Rivers must

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demonstrate that Living Rivers itself or its members “will suffer a
damage different in kind,” or “distinct from, that of the general
community.” Id. § 17-27a-103(2)(b). To be distinct from that of the
community at large, the injury to the party must be “sufficiently
particularized to give [the] party a personal stake in the outcome
of the dispute.” Cedar Mountain Env’t, Inc. v. Tooele County ex rel.
Tooele County Comm’n, 2009 UT 48, ¶ 9, 214 P.3d 95 (cleaned up),
abrogated on other grounds by McKitrick v. Gibson, 2021 UT 48, 496
P.3d 147. For an injury to be sufficiently particularized, it does not
need to be so unique that it is not shared by others, for “as long as
the injury has a direct effect on the complaining party, . . . others
may also share their concerns and be subject to the same specific,
individualized injuries.” Id. (cleaned up); see also Utah Chapter of
the Sierra Club v. Utah Air Quality Board, 2006 UT 74, ¶ 23, 148 P.3d
960 (holding that videographer’s and farmer’s allegations that
pollution from “plant operation[] will damage their livelihoods
are not generalized to everyone in the area” because not everyone
in the area relies on the area’s “environmental quality to make a
living”). But if the injury “is a general injury to the community,
the party does not have a personal stake in the dispute” and
therefore does not have statutory standing to bring a suit. Cedar
Mountain, 2009 UT 48, ¶ 9; see also Sierra Club, 2006 UT 74, ¶ 27
(finding it questionable whether a party whose “affidavit
expresse[d] general concerns about [pollution from] the plant”
and the adverse effects of “the deterioration of visibility”
sufficiently asserted a “particularized injury”). “Expressions of
concern, without a claim of actual or potential injury to the party,
are too generalized to qualify as a distinct and palpable injury.”
Sierra Club, 2006 UT 74, ¶ 27.

¶19 In the Director’s affidavit, Living Rivers asserted three
injuries that its members would suffer and one injury the
nonprofit itself and its donors would suffer as a result of the
Commission’s grant of Old Town’s permit. Living Rivers’s first
three allegations—which asserted contamination of the aquifer,
contamination of Mill Creek surface water, and harm to the Mill

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Creek watershed due to wildfire potential—are all general in
nature, and Living Rivers does not distinguish how these alleged
harms impact its members differently from the community
members at large. Unlike Sierra Club, where two individuals
asserted that increased pollution from a plant operation would
distinctly impact their specific livelihoods, Living Rivers has not
explained how the risk of contamination of the aquifer and Mill
Creek or the increased fire risk impacts its members differently
from the community at large. See id ¶¶ 23, 27. 5 Indeed, risks of
contaminated water and increased wildfire potential are among
the most generalizable harms to the community at large because
all community members would suffer if they lost access to
drinking water through contamination or were harmed by
wildfires. Therefore, Living Rivers has not established that the
first three harms to its members are sufficiently particularized to
provide Living Rivers with statutory standing under CLUDMA
on behalf of its members.

¶20 Living Rivers’s fourth alleged injury involving “[w]asted
donations and efforts to ensure that . . . Mill Creek . . . [is]
protected from contamination” may be particularized enough
because it is a lost monetary investment made by a particular
group—Living Rivers—and its specific donors rather than the
community at large. See id. ¶ 23 (holding that allegations of harm
were sufficient for statutory standing where they were specific to
two individuals and were “not generalized to everyone in the
area”). However, even if this harm was particularized enough to
be distinct from harm to the general community, to meet the
definition of an adversely affected party under CLUDMA, Living

5. On appeal, Living Rivers argues that affidavits from individual
members of an association are not required for the association to
demonstrate standing under CLUDMA. However, we need not
address this issue because even if individual members of Living
Rivers alleged the first three injuries, they would still be too
general to establish the required particularized injury.

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Rivers must also demonstrate that either it or its members who
are donors own or occupy property in San Juan County. 6 See Cedar
Mountain, 2009 UT 48, ¶ 10 (“Specific to land use cases, we have
determined that to have a personal stake in the outcome of a land
use decision, a party must own or occupy property within the
jurisdiction of the decision-making body.”). It has failed to do so.

¶21 First, in its reply brief, Living Rivers argues that
“installation of a stream gage and funding of watershed planning
studies” are improvements and investments into property in San
Juan County that should be considered along with the residency
of Living Rivers members in determining whether Living Rivers
owns or occupies property in the jurisdiction. We are not
persuaded that installation of a single stream gage and expending
resources to fund a watershed planning study is the same as
owning or occupying a parcel of property in the county. See
O’Connor v. Board of Zoning Appeals, 98 A.2d 515, 517–18 (Conn.
1953) (finding that landowners and residents who do not own
land but pay taxes to the town can be an “aggrieved” party with
statutory standing to appeal a zoning decision (cleaned up)), cited
with approval in Lund v. Cottonwood Meadows Co., 392 P.2d 40, 42
(Utah 1964). Accordingly, Living Rivers cannot establish that the
nonprofit itself owns or occupies property.

¶22 Second, Living Rivers alleged it has members who reside
in San Juan County, and it has received donations from members
that will be wasted if the permit is approved. But Living Rivers
has failed to connect the dots between the two. It is insufficient to
satisfy the Cedar Mountain requirement of owning or occupying
land in the jurisdiction by stating that you have members who
own or occupy land in the jurisdiction and also have members

6. Living Rivers stated in its reply brief that it “does not challenge
the district court’s ruling that a party must own or occupy
property within the jurisdiction of the decision-making body in
land use cases.”

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who will be harmed by their wasted donations without
specifically identifying that the individual members who will be
harmed via their wasted donations are the same members who
own or occupy land within the county. Without this specificity,
we have no way of knowing whether any of the Living Rivers
donors who will potentially suffer a sufficiently particularized
harm through their wasted donations are the same members who
reside in San Juan County. 7 As a result, Living Rivers has failed to
establish that it is an adversely affected party through its
members.

¶23 In sum, we conclude that Living Rivers does not have
statutory standing under CLUDMA because the potential harms
of contamination and wildfire damage are shared with the general
community, the corporation itself does not own or occupy land in
San Juan County, and Living Rivers failed to connect the potential
harm of wasted donations from its members to the members who
reside in San Juan County.

CONCLUSION

¶24 We conclude the district court erred in ruling that
associational standing is not available under CLUDMA, but we
nevertheless affirm the district court’s dismissal of Living Rivers’s
petition for review because Living Rivers has failed to
demonstrate that it has statutory standing.

7. We do not decide whether such an allegation of potential harm
would be sufficient to establish statutory standing under
CLUDMA, see Utah Code § 17-27a-103(2)(b), and leave the
question for a future case when the issue is squarely presented,
see Keisel v. Westbrook, 2023 UT App 163, ¶ 52 n.9, 542 P.3d 536
(“[W]e leave open the possibility that, if some future case arises in
which these [issues] are better presented, we may consider them
anew.”), cert. denied, 554 P.3d 1097 (Utah 2024).

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