van Frank v. Salt Lake City Corporation

IN THE UTAH COURT OF APPEALS
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Roger van Frank,
Plaintiff and Appellant,
v.
Salt Lake City Corporation, a municipal
corporation,
Defendant and Appellee.
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OPINION
Case No. 20100861‐CA
F I L E D
(July 12, 2012)
2012 UT App 188
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Third District, Salt Lake Department, 080919752
The Honorable Kate A. Toomey
Attorneys: 	Jeffrey L. Silvestrini and Justin D. Hatch, Salt Lake City, for Appellant
J. Wesley Robinson, Salt Lake City, for Appellee
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Before Judges McHugh, Thorne, and Christiansen.
THORNE, Judge:
¶1 	Plaintiff Roger van Frank appeals from the district court’s decisions granting Salt
Lake City Corporation’s (the City) motion for summary judgment and denying van
Frank’s summary judgment motion. Van Frank also appeals from the court’s decision
denying his motion for a new trial or to reconsider. We affirm the district court’s
dismissal of van Frank’s claims.

1. Van Frank provides only the surname of this client and limited information about the
Thomas matter.
2. The City clarified in its appellate brief that the building permit was denied, at least in
part, because the Division required a structural engineer’s opinion regarding certain of
van Frank’s calculations.
3. Van Frank filed an amended complaint in 2009, listing only the City as a defendant.
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BACKGROUND
¶2 	In 2006, van Frank, a licensed architect, entered into a contract with Mr. Thomas
to provide architectural services.1 Presumably van Frank prepared architectural plans,
which Thomas then included in his application for a building permit submitted to the
Salt Lake City Building Services and Licensing Division (the Division). The Division
denied Thomas a building permit, allegedly based upon the lack of a certified
engineer’s calculations. In 2007, van Frank entered into a contract with Mr. William
Buchanan to provide architectural services to design a garage with a loft. Van Frank
prepared the architectural plans, which Buchanan included in his application for a
building permit submitted to the Division. The architectural plans included structural
support calculations van Frank had performed for the loft’s floor system. The Division
conditionally denied Buchanan a building permit based upon van Frank’s calculations.2
Buchanan obtained the required endorsement of a structural engineer certifying that the
floor system van Frank designed was safe. Thereafter, the Division issued a building
permit to Buchanan.
¶3 	In 2008, van Frank filed a complaint in the Third District Court against the City
and Orion Goff, the Division’s director,3 seeking redress for harm done to him when the
Division allegedly imposed unauthorized restrictions on the scope of his architect’s
license. Van Frank complained that such actions by the Division deprived him of a
property right without due process. Van Frank also sought an injunction prohibiting
the Division from making further determinations limiting the scope of an architect’s
work.
¶4 	In 2010, the City filed a motion for summary judgment based on the grounds that
van Frank failed to state a claim upon which relief may be granted, lacked standing to
sue the City, had failed to exhaust his administrative remedies, and that no due process
constitutional violation had occurred. Van Frank filed a reply brief and a cross‐motion
for summary judgment, seeking damages and a permanent injunction against the City

20100861‐CA 	3
for its alleged violation of his substantive due process rights. The district court held a
hearing on the parties’ motions for summary judgment. After considering the parties’
arguments and supplemental authorities, the district court in its September 16, 2010
memorandum decision concluded that the City’s rejection of proposed plans in two
instances does not demonstrate a policy of limiting van Frank’s practice of architecture,
incidental to which he may engage in engineering, and granted the City’s summary
judgment motion and denied van Frank’s motion.
¶5 	On September 29, 2010, van Frank filed a motion for new trial or to reconsider.
The district court held oral arguments on the motion and subsequently denied the
motion, concluding that van Frank’s “Motion for New Trial or to Reconsider [was] not
well‐taken, either procedurally or substantively.” Van Frank now appeals from both
the district court’s summary judgment and new trial rulings.
ISSUES AND STANDARDS OF REVIEW
¶6 	Van Frank first argues that the district court erred by granting the City’s motion
for summary judgment and denying van Frank’s summary judgment motion. “An
appellate court reviews a trial court’s ‘legal conclusions and ultimate grant or denial of
summary judgment’ for correctness, and views ‘the facts and all reasonable inferences
drawn therefrom in the light most favorable to the nonmoving party.’” Orvis v. Johnson,
2008 UT 2, ¶ 6, 177 P.3d 600 (citations omitted).
¶7 	Van Frank also argues that the court erred by denying his motion for a new trial
or to reconsider. “‘[T]he trial court’s decision to deny [a] . . . motion for a new trial is
reviewed under an abuse of discretion standard.’” State v. Millett, 2012 UT App 31,
¶ 13, 271 P.3d 178 (alterations in original) (citation omitted). “However, ‘we review the
legal standards applied by the [trial] court in denying [a] motion [for a new trial] for
correctness.’” Id. (alterations in original) (citation omitted).
ANALYSIS
¶8 	Van Frank generally argues that each of the several district court rulings that he
appeals from should be reversed. The City, however, argues that van Frank failed to
exhaust his administrative remedies under Salt Lake City Code 18.20.140 and that,
therefore, the district court was ultimately correct in dismissing van Frank’s claims. We
agree with the City.

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¶9 	“Under Utah law, there is a specific exhaustion requirement with regard to land
use decisions: ‘No Person may challenge in district court a municipality’s land use
decision . . . until that person has exhausted the person’s administrative remedies . . . .’”
Salt Lake City Mission v. Salt Lake City, 2008 UT 31, ¶ 6, 184 P.3d 599 (omissions in
original) (quoting Utah Code Ann. § 10‐9a‐801(1) (Supp. 2007)). The denial of a
building permit constitutes a written decision by a land use authority. Cf. Fox v. Park
City, 2008 UT 85, ¶ 17, 200 P.3d 182 (“A building permit constitutes a written decision
by a land use authority.” (internal quotation marks omitted) (citing Utah Code Ann. §
10‐9a‐103(15) (defining “land use authority” as “a person, board, commission, agency,
or other body designated by the local legislative body to act upon a land use
application”))). “Where the legislature has imposed a specific exhaustion requirement
. . . we will enforce it strictly.” Salt Lake City Mission, 2008 UT 31, ¶ 6 (alterations in
original) (internal quotation marks omitted). “Strict enforcement of this provision
dictates that if a party fails to exhaust [its] administrative remedies prior to filing suit,
the suit must be dismissed.” Id. (alteration in original) (internal quotation marks
omitted).
¶10 	The process for obtaining a building permit includes submitting an application
“accompanied by all required plans, diagrams and other data.” See Salt Lake City,
Utah, City Code § 18.20.040. The Salt Lake City Code informs applicants that “[t]he
building official may require the plans and other data to be prepared and designed by
an engineer or architect licensed by the state to practice as such.” See id. The Salt Lake
City Code also provides that if the building official denies or revokes a permit, “[a]ny
person adversely affected by the action of the building official in accordance with the
preceding sections may appeal to the board of appeals and examiners for a hearing upon such
revocation or denial.” Id. § 18.20.140 (emphasis added).
¶11 	Here, two of van Frank’s clients submitted building permit applications
accompanied by architectural plans van Frank prepared. The Division initially denied
both building permit requests and allegedly required other data to be prepared by an
engineer before granting the permits. Van Frank asserts on appeal that he was
adversely affected by the Division’s action. He argues that when the Division denied
the building permits based on van Frank’s calculations it imposed an arbitrary
restriction of van Frank’s architect’s license and denied him a property interest in the
license because Utah law expressly permits a “licensed architect [to] perform such
professional engineering work as is incidental to the practice of architecture.” See Utah
Code Ann. § 58‐3a‐102(6)(b) (Supp. 2011) (“‘Practice of architecture’ does not include
the practice of professional engineering as defined in Section 58‐22‐102, but a licensed
architect may perform such professional engineering work as is incidental to the

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practice of architecture.”). Specifically, van Frank argues that the Division’s actions
requiring his clients to obtain an engineer’s approval of van Frank’s calculations denied
him the right to engage in the incidental practice of engineering, limited the scope of his
architecture license, and damaged his reputation with his clients. As provided in Salt
Lake City Code section 18.20.140, van Frank had the right to “appeal to the board of
appeals and examiners for a hearing” upon the denial of the building permit, which
denial by the building official adversely affected van Frank. See Salt Lake City, Utah,
City Code § 18.20.140 (“Any person adversely affected by the action of the building
official in accordance with the preceding sections may appeal to the board of appeals
and examiners for a hearing upon such revocation or denial.”). Van Frank did not,
however, appeal the Division’s decision in either the Thomas or Buchanan matters. By
failing to appeal either of the land use decisions van Frank relies upon to assert that the
Division restricted his architect’s license and denied him a property right in his license,
van Frank failed to exhaust his administrative remedies.
¶12 	Van Frank argues that the land use case law, discussed above, should not be
applied in this matter because it is not relevant to his property interest argument. Van
Frank asserts that such case law is inapplicable here because he is not claiming that he is
entitled to have a building permit approved. Rather, he is claiming that the Division’s
policy of processing permit applications arbitrarily restricts his architect’s license,
thereby infringing his property interest in the license and violating his due process
rights. This assertion is without merit. The right to appeal to the board of appeals for a
hearing based on a building permit denial includes an array of grievances from “[a]ny
person adversely affected” by the denial “in accordance with the preceding sections.”
See id. The preceding section 18.20.040 provides that the Division “may require the
plans or other data to be prepared and designed by an engineer.” See id. § 18.20.040.
Thus, the section is relevant to van Frank’s argument about the Division’s policy of
processing building permit applications and issuing building permits. The issuance or
denial of a building permit is a land use decision. Cf. Fox, 2008 UT 85, ¶ 17. As such,
land use case law is relevant to this matter.
¶13 	Van Frank does not claim that his failure to exhaust administrative remedies in
this case falls under an exception to the exhaustion requirement and should be excused.
Consequently, we hold that van Frank’s failure to exhaust his administrative remedies
prevents him from seeking relief from the courts at this time. As such, we do not reach
the merits of van Frank’s arguments and affirm the district court’s decision to dismiss
van Frank’s claims.

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CONCLUSION
¶14 	Van Frank’s appeal is based on the Division’s decision, in two instances, to deny
van Frank’s clients’ building permit applications, allegedly based on the Division’s
policy of processing permit applications in a manner that arbitrarily restricted van
Frank’s right as a licensed architect to perform professional engineering work incidental
to the practice of architecture. By not appealing the Division’s decisions to deny the
building permits, van Frank failed to exhaust his administrative remedies. Accordingly,
we do not reach the merits of van Frank’s arguments. Instead, we affirm the district
court’s decision to dismiss van Frank’s claims.
¶15 	Affirmed.
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William A. Thorne Jr., Judge
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¶16 	WE CONCUR:
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Carolyn B. McHugh,
Presiding Judge
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Michele M. Christiansen, Judge