Gardner v. Board of County Commissioners of Wasatch

2008 UT 6
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
John and Olga Gardner, et al., 	No. 20051110
Plaintiffs and Appellants,
v.
Board of County Commissioners 	F I L E D
of Wasatch County, et al.,
Defendants and Appellees. 	February 1, 2008
---
Fourth District, Provo Dep’t
The Honorable Anthony W. Schofield
No. 990401676
Attorneys: 	Gordon Duval, Brian Haws, Gregory Hansen,
American Fork, for plaintiffs
Barton H. Kunz II, Craig V. Wentz, Salt Lake City,
for defendants
---
DURHAM, Chief Justice:
INTRODUCTION
¶1 	A group of property owners (the Landowners) in the
Wasatch County subdivision known as Canyon Meadows sued Wasatch
County (the County) for various claims resulting from the impact
of two County ordinances that temporarily restricted development
in Canyon Meadows. 	The events that took place leading to and
resulting from the restrictive ordinances are outlined below.
BACKGROUND
I. FACTUAL BACKGROUND
¶2 	Canyon Meadows is a residential subdivision located in
Provo Canyon. 	Between 1981 and 1985, more than eighty lots were
approved for building. 	In 1993, New Canyon Meadows LLC (NCM)
acquired the unsold lots in Canyon Meadows and the surrounding

1 NCM commissioned the AGRA study.
No. 20051110 	2
unplatted areas included in the original master plan of the
Canyon Meadows area and proposed a large residential project.
¶3 	In May 1994, following a geological study undertaken in
connection with an anticipated highway expansion in the area, the
Utah Department of Transportation (UDOT) warned Robert Mathis,
the Wasatch County Planner, that “[t]here is substantial movement
in the [Hoover S]lide, and the depth of movement is such that it
is not likely that the slide can be stabilized.” 	UDOT also
expressed concern that an increase in the number of septic
systems in the area could “pose a serious impact to the Hoover
Slide.” 	A majority of the residential land at issue in this case
sits on the Hoover Slide, and the then-existing and anticipated
homes in the area utilized septic systems for waste removal.
¶4 	In November 1995, the Utah Geological Survey (UGS)
reported on its review of an engineering study of the area
conducted by AGRA Earth & Environmental, Inc. (AGRA). 1 	UGS
agreed with “AGRA’s concerns regarding possible slope
destabilization if care is not taken during future development.”
In a June 1996 follow-up report, UGS informed Phil Wright, the
Wasatch County Health Director, that the soil on which Canyon
Meadows was located was “derived from the Pennsylvanian-
Mississippian Manning Canyon Shale,” which was identified as a
“problem” geologic unit because its expansive soil and rock can
interfere with proper functioning of septic tank soil absorption
systems. 	If the potential problems materialize, the report
continued, “soil quickly becomes impermeable and [] septic
systems clog and fail, causing wastewater to flow to the surface
creating a health hazard.”
¶5 	The Landowners opposed the NCM development and
presented the County with a letter highlighting the potentially
severe consequences of such large-scale development. 	The letter
noted that the area was “very fragile,” and that the problems
identified in the various studies could affect proper septic
system functioning. 	The Landowners expressed concern about a
potential “catastrophic failure of the septic drain fields” and
recognized the fact that a majority of the lots in Canyon Meadows
failed percolation tests performed by engineering firms. 	The
Landowners worried that additional development might disturb the
soil’s equilibrium and possibly “trigger motion of the ancient
mud flow.” 	The Landowners also explicitly conceded that the
Canyon Meadows area is “ecologically sensitive.”

3 	No. 20051110
¶6 	In the fall of 1996, Mr. Mathis met with Victor Orvis
and Dee Olsen, representatives of the Canyon Meadows’ Home Owners
Association, to address some of the Landowners’ collective
concerns. 	During one such meeting in the summer of 1997, Mr.
Mathis allegedly became hostile and “began screaming and making
unfounded accusations against” Mr. Orvis and Mr. Olsen.
¶7 	Several of the Canyon Meadows lots had been improved
when, on January 13, 1997, the County enacted Ordinance 97-1, a
six-month temporary zoning regulation, restricting the approval
process for further development in the area. 	Ordinance 97-1
never appeared on the County’s published agenda but was published
in the local newspaper.
¶8 	Ordinance 97-1 prohibited the acceptance or approval of
applications for building permits that required septic systems
and also mandated additional studies of slope stability and
septic system suitability in Canyon Meadows and in the area of
the proposed NCM development. 	The County based the ordinance on
findings from the various geological studies detailed above and
explained that because “County officials have legitimate and
serious concerns that the hydrology and geology of the area . . .
may not be suitable for additional septic tanks or the continued
use of existing septic tanks,” it determined “to temporarily
suspend the sale of lots and the issuance of building permits
. . . until a comprehensive study can be done to determine the
safety of the geological features of the area, and to determine
the suitability of the area of [sic] continued development on
individual septic tanks.”
¶9 	Pursuant to Ordinance 97-1, the County hired Applied
Geotechnical Engineering Consultants, Inc. (AGEC) to conduct a
septic system suitability study. 	AGEC drilled forty wells and
installed monitoring devices on the Landowners’ property in order
to perform the groundwater studies. 	The resulting AGEC report,
which was reviewed and accepted by UGS, concluded that most of
the Canyon Meadows subdivision was unsuitable for septic tank
soil absorption systems because of shallow groundwater and warned
of potential health risks if such systems were used. 	With
respect to landslide issues, AGEC reviewed information from
earlier geotechnical studies and recommended additional studies
“to provide a better estimate of the risk of slope failure.” 	UGS
concluded that AGEC’s opinion that the slide was “marginally
stable” was “not overly conservative,” and UGS concurred with
AGEC’s recommendation that an “additional detailed geotechnical-
engineering field investigation [was] needed to determine whether
the subdivision [was] suitable for additional development.”

No. 20051110 	4
¶10 	After Ordinance 97-1 expired, the County proposed
Ordinance 97-6. 	The county commission held a public hearing to
discuss the ordinance and the overall status of the area. 	A
representative from AGEC attended the hearing and reported on its
concerns related to septic system functionability and slope
stability. 	The Landowners expressed opposing views. 	The
commission adopted Ordinance 97-6, but, as explained below, it
never became effective. 	When it was enacted, the county
commission agreed to meet for additional discussion. 	When the
commission met less than a month later, it learned that the
Landowners wanted to select their own engineers to complete the
recommended studies and concluded that if individual lot owners
could establish that their lots were sufficiently stable, they
would be issued building permits. 	The commission revised
Ordinance 97-6 to this effect and renumbered it as Ordinance 97-
13. 	Ordinance 97-13 also narrowed the area of the restriction so
as to exclude some of the properties that had been restricted
under Ordinance 97-1. 	According to the Landowners, Ordinance 97-
13 covered the Canyon Meadows subdivision but inexplicably
excluded the areas NCM sought to develop. 	Ordinance 97-13 became
effective when it was published on November 12, 1997.
¶11 	Pursuant to Ordinance 97-13, the Landowners retained
their own geotechnical engineers to perform slope stability
testing, for which their homeowners association paid over
$50,000. 	The Landowners alleged a number of hurdles encountered
in obtaining building permits during the course of the
restrictive periods. 	For example, Tom Hicken, an individual
certified to do percolation testing in Wasatch County, testified
in an affidavit that the county health department imposed testing
requirement criteria on Canyon Meadows that were not required in
other parts of the county. 	Mr. Orvis explained, in his February
26, 2001 affidavit testimony, that it was difficult to find
someone willing to run certain tests on the area because working
with Canyon Meadows could harm a tester’s working relationship
with the County. 	Furthermore, according to the Landowners, the
County violated Utah Administrative Code rule 317-4-5.4A (2007)
when it directed the health department to perform septic system
viability tests at a depth of four feet ten inches when the
septic systems in Canyon Meadows were installed at a depth of
ten inches. 	Rule 317-4-5.4A requires percolation system testing
to be performed “at points and elevations selected as typical of
the area in which the absorption systems will be constructed.”
Finally, the Landowners explained that AGEC, under the direction
of the County, installed 40 groundwater monitoring wells on their
properties without permission and repeatedly entered their
properties, also without permission, to monitor the water levels
in the wells.

5 	No. 20051110
¶12 	On November 12, 1998, the County approved the first
building permit following the restrictive periods described above
and subsequently issued several additional building permits in
the Canyon Meadows subdivision. 	In December 1998, AGEC submitted
a stability report noting average movement on the slide below the
development and concluded that Canyon Meadows could be developed
as intended but with precautions.
II. PROCEDURAL BACKGROUND
¶13 	The Landowners filed two separate lawsuits in Wasatch
County in 1997. 	The first suit was filed against the Board of
County Commissioners (the Board) and Robert Mathis, the County
Planner. 	The second suit was filed against the County. 	The suit
against the Board was transferred to Utah County in May 1999. 	In
March 2000, the suit against the County was consolidated into a
third suit, filed by the Landowners in 1999 against the Board,
the County, Mr. Mathis, County Health Director Phil Wright, and
other County employees. 	In December 2000, the second and third
suits were consolidated into the first suit.
¶14 	The parties to the consolidated suit filed cross-
motions for summary judgment. 	After argument, Judge James R.
Taylor issued a memorandum decision dismissing all but four
claims of the Landowners. 	The parties filed cross-motions that
resulted in Judge Taylor narrowing the scope of the remaining
four claims.
¶15 	Subsequently, Judge Anthony W. Schofield, to whom the
case assignment had rotated, granted the County’s motion to
compel the Landowners to answer certain interrogatories to which
they had objected. 	When the County received answers from certain
individuals who had not previously been identified by name as
plaintiffs (the complaint names several “John Doe” plaintiffs),
Judge Schofield also granted the County’s motion to limit the
plaintiffs to those named in the complaint.
¶16 	The County moved for summary judgment on the remaining
claims. 	After briefing and preparation for hearing, counsel for
the Landowners, at the beginning of the hearing, unexpectedly
requested that the court grant the County’s motion for summary
judgment on the remaining claims and dismiss them. 	After some
discussion and agreement from the County, Judge Schofield granted
the request. 	Shortly thereafter, Judge Schofield granted the
County’s subsequent motion for an award of attorney fees and
costs incurred in preparation for defending the dismissed claims.

2 Unless otherwise noted, this opinion cites to the current
version of the applicable statutes. 	Where necessary because of a
subsequent substantive change, as is the case here, we cite to
the version in effect at the time of the alleged violation. 	The
current version of section 404 is found at Utah Code section 17-
27a-504 (2005).
3 The current version of section 52-4-6 is found at Utah
Code section 52-4-202(1) (2007).
No. 20051110 	6
The Landowners appealed the entire case to us. 	We have
jurisdiction pursuant to Utah Code section 78-2-2(3)(j) (2002).
STANDARD OF REVIEW
¶17 	Summary judgment is appropriate only when there are no
genuine issues of material fact and the moving party is entitled
to judgment as a matter of law. 	Utah R. Civ. P. 56(c). 	“In
reviewing a grant of summary judgement, we do not defer to the
legal conclusions of the district court, but review them for
correctness.” 	Springville Citizens for a Better Cmty. v. City of
Springville, 1999 UT 25, ¶ 22, 979 P.2d 332. 	This standard is
appropriate for Parts I through VII of this opinion. 	With
respect to Parts VIII, IX, and X, the appropriate standard of
review is abuse of discretion, as noted in our discussion.
ANALYSIS
¶18 	On appeal, the Landowners request that we reverse the
district court’s grant of summary judgment or dismissal of a
variety of claims. 	Because there are many claims at issue, we
address each claim individually.
I. 	THE LANDOWNERS’ CHALLENGE TO ORDINANCE 97-1 WAS UNTIMELY
¶19 	The Landowners argue that Ordinance 97-1, a temporary
zoning regulation enacted under Utah Code section 17-27-404
(Supp. 1997), 2 was enacted in violation of the County Land Use,
Development, and Management Act (CLUDMA). 	We conclude that the
County’s failure to include Ordinance 97-1 on the agenda for its
regularly scheduled January 13, 1997 meeting actually violated a
requirement of Utah Code section 52-4-6(2) (2002) 3 of the Open
and Public Meetings Act (OPMA), which states that a “public body

4 While our decision on the timeliness violation relates to
Utah Code section 52-4-8, we note that the district court
concluded that there was a timeliness violation of Utah Code
section 17-27a-801 (Supp. 2007), which is the statute addressed
by each party in its brief on appeal. 	The result is the same
under either statute.
The Landowners originally brought their claim under section
17-27a-801, which allows persons adversely affected by a county’s
final land use decision to file a challenge in a district court.
Section 801 is part of the County Land Use, Development, and
Management Act (CLUDMA). 	The purpose of CLUDMA is to “provide
for the health, safety, and welfare . . . of each county,” and it
grants counties authority to enact related ordinances and
resolutions. 	Utah Code Ann. § 17-27a-102(1)(a) (Supp. 2007).
While the content of Ordinance 97-1 falls within CLUDMA’s
authority, the challenge to Ordinance 97-1 actually arose from
the County’s violation of OPMA, and thus we have undertaken our
analysis within that act. 	Nevertheless, because section 801
requires a petition for review to be made within thirty days of
the decision, the Landowners’ challenge was also untimely under
section 801.
On appeal to this court, the Landowners challenged Ordinance
97-1 under Utah Code section 17-27a-802 (2005), recognizing that
section 802 challenges are not limited in time. 	Without
addressing the fact that a challenge under section 802 was not
raised below and, therefore, was not preserved and cannot
properly come before us on appeal, we note that section 802
provides a means to challenge procedural violations of CLUDMA.
Section 802 does not apply here, in our view, because the
challenge arose from a violation of OPMA and not from a
procedural violation of CLUDMA.
5 The current version of section 52-4-8 is found at Utah
Code section 52-4-302(2) (2007).
7 	No. 20051110
shall give not less than 24 hours’ public notice of the agenda,
date, time and place of each of its meetings.” 4
¶20 	The Landowners’ challenge to Ordinance 97-1 under
section 52-4-6 was not timely. 	Final actions taken in violation
of section 52-4-6 are voidable, but a challenge seeking to void
the action must be brought within ninety days of the violation.
Utah Code Ann. § 52-4-8 (2002). 5 	The County approved Ordinance
97-1 at its January 13, 1997 meeting, but the Landowners did not
challenge it until September 1997, well after the ninety-day time
limit had expired. 	Thus, the district court did not err in
dismissing the Landowners’ claim as untimely.

6 At the time Ordinance 97-13 was adopted, Utah Code section
17-27-404 read, “A county legislative body may, without a public
hearing, enact an ordinance establishing a temporary zoning
regulation for any part or all of the area within a county if:
the legislative body makes a finding of compelling,
countervailing public interest. . . .” (emphasis added). 	The
current version of this statute, Utah Code section 17-27a-504
(2005), reads, “A county legislative body may, without prior
(continued...)
No. 20051110 	8
II. 	ORDINANCE 97-13 WAS NOT ILLEGAL, ARBITRARY, OR CAPRICIOUS;
WAS PROPERLY APPROVED; AND DID NOT IMPOSE
AN ILLEGAL FEE ON THE LANDOWNERS
¶21 	Ordinances 97-1 and 97-13 were passed pursuant to Utah
Code section 17-27-404 (Supp. 1997), which permitted a county
legislative body to “enact an ordinance establishing a temporary
zoning regulation . . . if the legislative body makes a finding
of compelling, countervailing public interest.” 	If a challenge
to a county’s land use decision exhausts all administrative
remedies and is timely made, a reviewing district court must
“determine only whether or not the decision . . . is arbitrary,
capricious, or illegal.” 	Utah Code Ann. § 17-27a-801 (Supp.
2007). 	Because, as discussed in the prior section, the
Landowners’ challenge to Ordinance 97-1 was untimely, we discuss
only Ordinance 97-13 in this section.
¶22 	The district court found that the Landowners’ challenge
to Ordinance 97-13 failed as a matter of law because “the
undisputed evidence is that there has been a legitimate concern
over the geology of the development area for a substantial period
of time,” and “[t]here is nothing in the pleadings or the
evidence before this Court by way of affidavit or other
submission that would lead this Court to conclude that the County
enactment of Ordinance 97-13 was an arbitrary or capricious
reaction to the long-standing geologic concerns.” 	Given the
number and depth of the geological studies expressing concern
over slope stability and septic system suitability in the area,
together with the Landowners’ own opposition to new development
and agreement that the area was “ecologically sensitive,” we
agree with and affirm the decision of the district court.
¶23 	With respect to the Landowners’ remaining contentions
concerning the validity of Ordinance 97-13, we also affirm the
district court’s decisions. 	The Landowners contend that
Ordinance 97-13 was invalid because it was not submitted to the
planning commission for approval before consideration by the
county commission. 6 	The district court held that “temporary

6 (...continued)
consideration of or recommendation from the planning commission,
enact an ordinance . . . .” (emphasis added). 	The current
version is not the applicable version for the resolution of this
dispute because it was not effective when the ordinance was
adopted.
9 	No. 20051110
regulations created under [section 404] are subject only to the
requirements of part 404 and therefore [Ordinance 97-13] need not
have been submitted to the planning commission.” 	We agree.
¶24 	The Landowners contend further that Ordinance 97-13
illegally imposed a fee in violation of Utah Code section 17-27-
404(1)(c) (Supp. 1997). 	The temporary restriction on the
issuance of building permits included, at the request of the
Landowners, an exception allowing individual property owners in
the affected area to obtain a building permit upon the successful
completion of a slope stability study. 	The Landowners contend
that the cost of the slope stability study constituted an illegal
fee. 	We disagree. 	As recognized by the district court, the
option to establish, on a case-by-case, voluntary basis, whether
an individual’s land is suitable for construction does not equate
to the imposition of an impact fee.
¶25 	Accordingly, we affirm the district court’s conclusions
that Ordinance 97-13 did not need to be submitted to the planning
commission for prior approval, did not impose an illegal fee on
the Landowners, and was not illegal, arbitrary, or capricious.
III. 	THE LANDOWNERS’ FEDERAL REGULATORY CLAIMS ARE NOT RIPE;
THEIR PHYSICAL TAKINGS CLAIM WAS WAIVED
A. 	Because the Landowners Failed to Allege and Plead to Its
Conclusion a State Law Inverse Condemnation Claim Pursuant to
Article I, Section 22 of the Utah Constitution, We Will Not
Consider Their Federal Fifth Amendment Takings Claim
¶26 	The County filed a Motion for Summary Disposition on
this issue, arguing that a federal takings claim only ripens
after state takings remedies have proven inadequate. 	Under this
argument, the County suggests that because the Landowners have
not sought state takings remedies pursuant to article 1, section
22 of the Utah Constitution, their federal regulatory takings
claim is not ripe. 	We agree.
¶27 	The United States Supreme Court explained in Williamson
County Regional Planning Commission v. Hamilton Bank of Johnson
City that because the Fifth Amendment to the United States

7 The Landowners point out that they made reference to the
Utah Constitution in their Memorandum in Opposition to Wasatch
County’s Amended Motion for Summary Judgment. 	This is true with
respect to their physical takings argument, but not with respect
to their regulatory takings argument. 	More importantly, a motion
is not the proper place to raise a new claim or theory for
recovery. 	See Holmes Dev., LLC v. Cook, 2002 UT 38, ¶ 31, 48
P.3d 895. 	In their Amended Complaint, the Landowners brought
their inverse condemnation cause of action “under the Fifth and
Fourteenth Amendments” to the United States Constitution.
No. 20051110 	10
Constitution prohibits the taking of property without just
compensation, “if the government has provided an adequate process
for obtaining compensation, and if resort to that process
[yields] just compensation, then the property owner has no claim
against the Government for a taking.” 	473 U.S. 172, 194 (1985)
(internal quotation marks omitted) (alteration in original).
Thus, “if a State provides an adequate procedure for seeking just
compensation, the property owner cannot claim a violation of the
Just Compensation Clause until it has used the procedure and been
denied just compensation.” 	Id. at 195. 	Utah law provides such a
procedure.
¶28 	Article I, section 22 of the Utah Constitution states,
“Private property shall not be taken or damaged for public use
without just compensation.” 	If private property is taken or
damaged for public use absent formal use of Utah’s eminent domain
power, a “property owner may bring an inverse condemnation action
under article I, section 22 to recover the value of the
property.” 	Farmers New World Life Ins. Co. v. Bountiful City,
803 P.2d 1241, 1243 (Utah 1990).
¶29 	Therefore, before bringing a federal takings claim, the
Landowners must have pursued their state takings claim to an
unsuccessful conclusion. 	They have not done so. 	Although the
Landowners have claimed “inverse condemnation” a few times in the
history of this case, they did not do so in their Amended
Complaint with regard to their regulatory takings claim, and they
have never done so pursuant to article 1, section 22. 7 	“‘Unless
and until plaintiffs avail themselves of [the inverse
condemnation] remedy, their takings claim will remain unripe.’”
Patterson v. Am. Fork City, 2003 UT 7, ¶ 35, 67 P.3d 466 (quoting
Bell v. Am. Fork City, No. 98-4215, 1999 U.S. App. LEXIS 30734 at
*7 (10th Cir. Nov. 30, 1999) (alteration in original)). 	Because
the Landowners have not pursued a state inverse condemnation
claim to an unsuccessful conclusion, their federal takings claim
is unripe.

8 We note that the Landowners argued that a physical taking
occurred in their Memorandum In Opposition To Wasatch County’s
Amended Motion for Summary Judgment before the district court.
This is insufficient for preservation purposes. 	A specific
takings claim must have been asserted in the Landowners’ Amended
Complaint in order to properly come before us on appeal.
11 	No. 20051110
B. 	The Claim That Physical Taking Occurred Was Waived
¶30 	Under the direction of the County, AGEC installed
forty groundwater monitoring wells on the Landowners’ properties.
Both the installation of the wells and the regular monitoring of
them occurred without the Landowners’ permission to enter the
properties. 	The Landowners claim that this invasion constituted
a physical taking of their properties that entitles them to
compensation under the Fifth Amendment of the U.S. Constitution.
This claim was not preserved for appeal.
¶31 	The Landowners’ Amended Complaint before the district
court claimed that the County committed trespass by drilling
wells and periodically inspecting the groundwater levels in them.
The district court dismissed the trespass claim after concluding
that declaratory relief, which was the relief sought by the
Landowners on this claim, was “not available under the law for
the tort of trespass.” 	The Landowners did not appeal the
district court decision on their trespass claim. 	Instead they
argue in their brief before us that the installation and
monitoring of water in the wells amounted to a physical taking. 8
¶32 	Issues not raised before the district court are
normally waived and cannot be raised for the first time on
appeal. 	See Tschaggeny v. Milbank Ins. Co., 2007 UT 37, ¶ 22,
163 P.3d 615 (“[B]y not allowing the trial judge an adequate
opportunity to consider the issues, [the plaintiff] waived the
right to raise the issue on appeal.”). 	The Landowners did not
appeal the decision of the district court with respect to their
trespass claim; they simply presented us with their new physical
takings claim. 	Because the Landowners did not present that claim
below, the claim is deemed waived and we will not address it for
the first time on appeal.
IV. 	ORDINANCES 97-1 AND 97-13 DID NOT VIOLATE THE LANDOWNERS’
FEDERAL SUBSTANTIVE DUE PROCESS RIGHTS, BUT MAY HAVE
VIOLATED THEIR FEDERAL EQUAL PROTECTION RIGHTS
¶33 	When a fundamental right is not at issue, a statute
will not violate substantive due process if it is rationally
related to a legitimate state interest. 	See Judd v. Drezga, 2004

No. 20051110 	12
UT 91, ¶ 30, 103 P.3d 135 (“Generally, we apply a rational basis
test in substantive due process cases.”); Condemarin v. Univ.
Hosp., 775 P.2d 348, 358-59 (Utah 1989). 	Ordinance 97-1 and
Ordinance 97-13 were rationally related to a legitimate state
interest, namely, ensuring the safety of development in the
Canyon Meadows area. 	Both ordinances mandated geological studies
designed to determine whether the slopes in the area were stable
enough for construction and whether the area was suitable for
septic tanks. 	Because the test results indicated that the area
was safe for development, the County resumed the issuance of
building permits to Canyon Meadows applicants. 	The district
court concluded, and we agree, that Ordinances 97-1 and 97-13
were rationally related to resolving the County’s legitimate
concerns and therefore did not violate the Landowners’ federal
substantive due process rights.
¶34 	With respect to the Landowners’ equal protection claim,
however, we do not believe the district court’s holding was
supported by the record. 	Like the other claims in this case, the
equal protection claim was dismissed by the district court on
summary judgment. 	“[W]hen an appellate court reviews a district
court’s grant of summary judgment, the facts and all reasonable
inferences drawn therefrom [are viewed] in the light most
favorable to the nonmoving party.” 	Massy v. Griffiths, 2007 UT
10, ¶ 8, 152 P.3d 312 (internal quotation marks omitted).
¶35 	Ordinance 97-1 prohibited “acceptance or approval of
applications for building permits . . . in the Canyon Meadows
area” and also “acceptance of applications for subdivision
approvals on properties adjacent to the Canyon Meadows
subdivision,” which was understood to mean the NCM development.
Ordinance 97-13 continued the prohibition of “acceptance or
approval of applications for building permits . . . in the Canyon
Meadows area,” but did not prohibit acceptance of applications
for subdivision approval on adjacent properties.
¶36 	Landowner Victor Orvis stated in his February 26, 2001
affidavit that Ordinance 97-13 “purported to be a continuation of
Ordinance 97-1, but in actuality it reduced the area covered by
[Ordinance 97-1] . . . to an area limited almost exclusively to
the platted areas of the subdivision. 	Illogically, areas
directly adjacent to and below the subdivision were not
restricted by [Ordinance 97-13].” 	Mr. Orvis further alleged that
the restrictions placed on Canyon Meadows were part of an
“avalanche of policies and regulations” placed on Canyon Meadows
because “Bob Mathis and Phil Wright and the county commission
took personal offense to [his and fellow landowner and former
Canyon Meadows Home Owners Association president Dee Olsen’s]

13 	No. 20051110
inquiries.” 	Significantly, the County offered no explanation for
reducing the area affected by Ordinance 97-13.
¶37 	Another indication of disparate treatment with no
rational basis is found in Tom Hicken’s affidavit testimony
wherein he explained that, in his experience of performing
percolation tests in Wasatch County, the County “health
department is much more stringent with their percolation tests in
Canyon Meadows than they are anywhere else in the county.” 	He
also testified that County officials appeared to be suspicious
about his testing results only in connection with work performed
in Canyon Meadows. 	Additionally, Mr. Orvis explained in his
affidavit that it was difficult to find someone willing to
provide services in the percolation testing process in Canyon
Meadows because those testers that made their living in Wasatch
County “fear[ed] that working for Canyon Meadows would harm their
working relationship with county officials.”
¶38 	Equal protection of the law requires that similarly
situated persons be treated alike. 	City of Cleburne v. Cleburne
Living Ctr., 473 U.S. 432, 439 (1985). 	A person claiming that
her equal protection rights have been violated must demonstrate
that she was treated differently than another person similarly
situated and that the unequal treatment was based upon an
impermissible consideration, such as race, or that the selective
treatment resulted from a malicious or bad faith intent. 	In this
case, there was evidence of dissimilar treatment and an
allegation, with some evidentiary support, of malicious or bad
faith intent on the part of county officials.
¶39 	When the evidence is viewed in the light most favorable
to the Landowners, summary judgment was not appropriate for this
claim. 	An equal protection claim that, as here, does not involve
a fundamental right or a suspect class is subject only to
rational basis review. 	See Mountain Fuel Supply Co. v. Salt Lake
City Corp., 752 P.2d 884, 888 (Utah 1988); see also State v.
Holm, 2006 UT 31, ¶ 99, 137 P.3d 726 (“Where no suspect
classification or violation of a fundamental right is involved, a
difference in treatment need be only rationally related to a
valid public purpose to withstand equal protection scrutiny.”
(internal quotation marks omitted)). 	There is no fundamental
right or suspect class involved in this case, so rational basis
review is appropriate. 	Despite the fact that the rational basis
test requires a relatively low level of justification for the
alleged unequal treatment, we cannot, with the information found
in the record, affirm the decision of the district court. 	Given
the change in the geographic scope of the restrictions of
Ordinance 97-13 compared to those of Ordinance 97-1, the fact

No. 20051110 	14
that the County never offered any reason for the change, and the
other claims of disparate treatment and bad faith motives with
respect to testing standards in Canyon Meadows, we are compelled
to remand this issue to the district court to determine whether
Ordinance 97-13 violated the Landowners’ equal protection rights.
V. 	WASATCH COUNTY RESOLUTION 99-11 DOES NOT INFRINGE
UPON THE LANDOWNERS’ FIRST AMENDMENT RIGHTS
¶40 	Wasatch County Resolution 99-11 restricts county
elected officials, department heads, and certain county employees
from communicating with a person, group, or organization pursuing
litigation against the county in “matters related to the pending
litigation.” 	The resolution instructs county workers to refer
the litigant to the County attorney’s office, who will determine
whether and how to respond to the communications related to the
pending litigation. 	Such a resolution does not violate the
Landowners’ First Amendment right to freedom of speech or right
to petition the government for redress.
¶41 	We agree with the district court’s finding that “[t]he
county legislators [] merely assigned control over who
disseminates litigation information to the department best able
to do so.” 	Resolution 99-11 designates the proper channel for
seeking redress from the County; it does not prohibit the
Landowners from petitioning the County. 	Accordingly, we find
that the district court properly held that “there is no basis in
fact to conclude that [the County] depriv[ed] [the Landowners] of
any of their rights through this resolution.”
VI. 	RES JUDICATA BARS THE LANDOWNERS’ CHALLENGE THAT
PERCOLATION TESTING REQUIREMENTS WERE ILLEGAL
¶42 	The Landowners allege that the County requirement that
percolation tests be performed at a depth of four feet, ten
inches was arbitrary, illegal, and in direct violation of Utah
law. 	Utah Administrative Code rule 317-4-5.4 requires that
percolation tests be made “at points and elevations . . . typical
of the area in which the absorption system will be located.”
Contrary to this specification, the County required septic
systems used in Canyon Meadows to be placed no deeper than ten
inches below the surface, but required percolation tests to be
performed four feet below the installation level.
¶43 	The Landowners originally raised this issue in a
separate lawsuit that was never consolidated with this case and
that was dismissed with prejudice on December 22, 2000. 	The
Landowners assert that the parties stipulated to the dismissal

15 	No. 20051110
with the joint understanding that the issue would be addressed in
this case and that the County has now deceitfully altered its
position by urging us to affirm the district court’s holding that
res judicata bars consideration of the issue in this case. 	The
Landowners urge us to void the stipulation due to
misrepresentation, fraud, or mistake and to grant them relief
from its effects. 	See 17 Am. Jur. 2d Contracts § 143 (1964).
They rely on Tanner v. Dist. Judges, 649 P.2d 5 (Utah 1982).
Their argument misconstrues the holding in that case. 	The
stipulation at issue in Tanner was part of a pending case--one
that had not proceeded to final judgment--and we explicitly
stated that our holding was limited to the procedural posture of
that case. 	Ordinarily, dismissal with prejudice constitutes a
final judgment. 	See Speros v. Fricke, 2004 UT 69, ¶ 19, 98 P.3d
28. 	Therefore, the district court did not err when it held that
res judicata precluded it from considering the alleged violations
by the County in connection with the percolation testing
requirements.
VII. 	THE LANDOWNERS’ REQUEST THAT THE DISTRICT COURT GRANT
THE COUNTY’S MOTION FOR SUMMARY JUDGMENT ON THE
“REMAINING ISSUES” CONSTITUTED ACQUIESCENCE IN THE
JUDGMENT AND WAIVER OF THE RIGHT TO CONTEST
THOSE ISSUES ON APPEAL
¶44 	The district court’s March 5, 2002 decision on the
parties’ pending cross-motions disposed of all but the following
four issues: 	(1) whether the County was estopped from refusing
to issue building permits based on alleged representations to the
contrary made by Mr. Mathis and Mr. Wright; (2) whether the
County enforced Ordinance 97-13 longer than six months;
(3) whether Mr. Mathis enforced Ordinances 97-1 and 97-13 longer
than six months, in violation of the Landowners’ federal
constitutional rights, entitling them to punitive damages; and
(4) whether the extent and quality requirements of the
percolation tests violated the Landowners’ federal constitutional
rights and entitled them to punitive damages. 	The district court
labeled these four issues the “remaining issues” and scheduled
them for argument on September 20, 2005.
¶45 	The County filed another motion for summary judgment on
the remaining issues and the Landowners filed a response in
opposition. 	At the scheduled hearing, without forewarning to
either the County or the court, counsel for the Landowners said,
“[i]t’s in the best interests of this court and all the parties
that the court rule against my client on this apparent motion for
summary judgment.” 	After colloquy with the court, counsel
conceded that he did not have facts sufficient to adequately

No. 20051110 	16
defend against the County’s summary judgment motion. 	Counsel
apparently believed that dismissal of the remaining issues would
enable him to raise all of the issues together on appeal and
revive his ability to support the Landowners’ arguments on the
remaining issues. 	The district court granted the County’s motion
for summary judgment and “based upon the facts presented by and
the arguments asserted in defendants’ supporting and reply
memoranda” dismissed the remaining issues with prejudice.
¶46 	“As a general rule, . . . one who acquiesces in a
judgment cannot later attack it.” 	Trees v. Lewis, 738 P.2d 612,
613 (Utah 1987). 	In Ottenheimer v. Mountain States Supply Co.,
188 P. 1117, 1117 (Utah 1920), a property dispute arose when the
plaintiff sought to recover possession of a parcel of real
property allegedly wrongfully withheld by the defendant. 	The
defendant alleged that he occupied the property by virtue of a
valid lease that was not due to expire for several years. 	Id.
The district court ruled in favor of the plaintiff. 	Id. 	The
defendant appealed the court’s decision, but also surrendered the
premises. 	Id. at 1117-18. 	Despite written notice to the
plaintiff from the defendant explaining that he did not intend to
waive his right to appeal by moving off the land, we granted the
plaintiff’s motion to dismiss the appeal on the basis that “the
acquiescence in the judgment and the surrendering of possession
of the premises necessarily amounts to a waiver of all the
litigated questions.” 	Id. at 1118-19.
¶47 	We find the actions of the Landowners here analogous to
the situation in Ottenheimer. 	Like the defendant’s surrender of
possession of the property in Ottenheimer, counsel for the
Landowners did not intend to waive the right to appeal when he
requested the entry of judgment against his clients.
Nonetheless, his action constituted a waiver of the right to
appeal; acquiescence in a dismissal with prejudice preserves no
issues for review.
VIII. 	THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION
WHEN IT AWARDED THE COUNTY ITS ATTORNEY FEES
INCURRED IN DEFENSE OF THE REMAINING ISSUES
¶48 	The district court did not abuse its discretion when it
granted the County’s motion for attorney fees pursuant to 42
U.S.C. § 1988. 	The County requested only those attorney fees
incurred in connection with its preparation for the anticipated
trial on the remaining issues, which were ultimately dismissed as
explained above. 	“[W]e review an attorney’s fee award under 42
U.S.C. § 1988(b) for an abuse of discretion.” 	Robinson v. City
of Edmond, 160 F.3d 1275, 1280 (10th Cir. 1998).

17 	No. 20051110
¶49 	The remaining issues were left over from the district
court’s March 5, 2002 decision. 	More than three and one-half
years passed before the hearing on the remaining issues took
place on September 20, 2005. 	During the interim period, the
parties engaged in additional discovery and filed numerous
procedural motions with the district court. 	In making its award,
the district court concluded that the Landowners “knew or should
have known upon responding to [the County’s] narrowly tailored
written discovery requests on July 26, 2002, that they had
insufficient factual grounds upon which to succeed on their
[remaining] claims.” 	The court found that the Landowners
“nonetheless continued to vigorously litigate these claims
unnecessarily” and that it was “not until the moment of oral
argument on [the County’s] motion for summary judgment . . . [at
which point] several other motions had been decided, and several
more had been fully briefed and were awaiting decision,” that the
Landowners ultimately conceded they had insufficient evidence to
support their remaining claims.
¶50 	Prevailing defendants may be awarded their attorney
fees related to defending frivolous, unreasonable, or groundless
claims if a plaintiff continues to litigate them after they
become clearly groundless. 	Prochaska v. Marcoux, 632 F.2d 848,
854 (10th Cir. 1980) (holding that prevailing defendants should
be awarded fees if “‘a court finds that [the plaintiff’s] claim
was frivolous, unreasonable, or groundless, or that the plaintiff
continued to litigate after it clearly became so.’” (quoting
Christianburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978))).
While we do not assume that the Landowners’ counsel believed the
remaining issues to be frivolous, unreasonable, or groundless at
the outset of the case, or even at the time of the March 2002
order, counsel should have notified the court and the County that
he had insufficient evidence available to litigate the remaining
issues as soon as it became evident to him, which the district
court found, at the latest, to be on July 26, 2002, the date the
Landowners responded to the County’s additional discovery
requests (less than four months after the 2002 decision and more
than three years before the hearing on the remaining issues).
Our review of the record and of the relevant sequence of events
leads us to conclude that the district court acted within its
discretion when it granted the County’s motion for attorney fees
related to the County’s preparation to defend the remaining
issues. 	Therefore we affirm on this point.

No. 20051110 	18
IX. 	THE DISTRICT COURT’S GRANT OF THE COUNTY’S MOTION
TO COMPEL THE LANDOWNERS TO ANSWER INTERROGATORIES
WAS NOT AN ABUSE OF DISCRETION
¶51 	“Because trial courts have broad discretion in matters
of discovery, this issue is reviewed for abuse of discretion.”
Green v. Louder, 2001 UT 62, ¶ 37, 29 P.3d 638. 	We find that the
district court did not abuse its discretion when it compelled the
Landowners to answer the County’s interrogatories asking them to
identify the law they alleged defendants Mr. Mathis and Mr.
Wright violated in relation to the percolation test standards.
The Landowners contend that the interrogatories improperly sought
legal conclusions and opinions from lay witnesses. 	Rule 33(b) of
the Federal Rules of Civil Procedure, which Utah has adopted,
governs the use of answers and objections to interrogatories.
See Utah R. Civ. P. 33(b). 	The 1970 advisory committee notes
state that rule 33 was “amended to provide that an interrogatory
is not objectionable merely because it calls for an opinion or
contention that relates to fact or the application of law to
fact.” 	Fed. R. Civ. P. 33(b) advisory committee’s note. 	Because
the interrogatories objected to by the Landowners directly
related to the facts of the alleged County violations, it was
proper, and, therefore, not an abuse of discretion for the
district court to order the Landowners to respond.
X. 	THE DISTRICT COURT’S GRANT OF THE COUNTY’S MOTION TO LIMIT
THE PLAINTIFFS IN THE SUIT TO THOSE NAMED IN THE LANDOWNERS’
AMENDED COMPLAINT WAS NOT AN ABUSE OF DISCRETION
¶52 	Although we have never had the opportunity to review an
appeal from a district court’s dismissal of plaintiffs designated
in the complaint as “John Does,” we deem such a decision akin to
a determination of whether a party should be joined to an action,
which we will not disturb absent an abuse of discretion. 	See
Green v. Louder, 2001 UT 62, ¶ 40, 29 P.3d 638.
¶53 	The Landowners’ pleadings throughout this case have
listed, in addition to several named plaintiffs, up to seventy-
two John Doe plaintiffs. 	The Landowners suggest that this was
done “purely in the interests of judicial economy” in order to
keep litigation costs down and to reduce the number of motions
before the court that would have arisen each time “a home was
sold and a new landowner became an interested party.” 	They
further argue that the County has always known the identity of
each John Doe plaintiff because each was identified on documents
listing the property owners’ home values and because the County
deposed many of the John Doe plaintiffs in a related, but
dismissed, federal case.

19 	No. 20051110
¶54 	For its part, the County argues that rule 10(a) of the
Utah Rules of Civil Procedure requires that a complaint “include
the names of all the parties” and that, therefore, the Landowners
were precluded from litigating on behalf of the John Doe
plaintiffs. 	Utah R. Civ. P. 10(a). 	In support of the rule’s
enforcement, the County identifies two recognized exceptions, but
goes on to explain why they do not apply to the John Doe
plaintiffs in this case. 	First, the John Doe plaintiffs do not
have an important privacy interest in need of protection. 	See
Lindey v. Dayton-Hudson Corp., 592 F.2d 1118, 1125 (10th Cir.
1979) (stating that the use of an unnamed plaintiff is an unusual
procedure and should only be allowed when there is an important
privacy interest). 	Second, no John Doe plaintiff can reasonably
be considered an indispensable party to the lawsuit. 	See
Intermountain Physical Med. Assocs. v. Micro-Dex Corp., 739 P.2d
1131, 1132 (Utah Ct. App. 1987) (permitting plaintiff’s motion to
amend its complaint to add three plaintiffs who were found to be
indispensable parties). 	Additionally, the County points out that
there were other procedural avenues available to the Landowners
that would have permitted them to achieve the efficiencies they
were seeking without resorting to the use of the John Doe
designation for additional interested parties, such as
petitioning the court for class certification.
¶55 	On the other hand, we sympathize with the Landowners’
frustration with respect to this issue because we recognize that
substantial discovery was conducted in a related federal court
case that was ultimately dismissed and refiled in state court,
allegedly upon agreement by the parties that they would continue
to use and rely upon much of the discovery from the federal court
case. 	In that case, many of the John Doe plaintiffs took part in
depositions and provided answers to interrogatories and other
requests for factual development of the issues. 	Those documents
have been used and relied upon by the parties in this case.
Indeed the Landowners presented examples of documents submitted
by the County in this case that specifically relate back to
documents submitted in the prior federal court case, such as
“Defendants Third Set of Written Discovery” and the “continued
deposition” of Phil Wright.
¶56 	While we recognize that these are persuasive arguments
from both parties on this issue, on balance we are not persuaded
that the district court abused its discretion in dismissing the
John Doe plaintiffs. 	Our decision is bolstered by the fact that
the Landowners claim that their use of the John Doe designation
was done in the interest of judicial economy in order to avoid
“the necessity of having to amend the complaint every time a home

No. 20051110 	20
was sold and a new land owner became an interested party,” thus
implying that sales and transfers happened frequently, while
simultaneously arguing that the regulations imposed on the
property temporarily devalued it to such a degree that it could
not be sold at all, at least not without significant economic
loss. 	Thus, we conclude that the district court did not abuse
its discretion in dismissing the John Doe plaintiffs, and we
affirm its dismissal.
CONCLUSION
¶57 	We affirm the district court’s order of summary
judgment, except as to its dismissal of the equal protection
claim. 	That portion of the case is remanded to the district
court for further proceedings.
---
¶58 	Associate Chief Justice Wilkins, Justice Durrant,
Justice Parrish, and Justice Nehring concur in Chief Justice
Durham’s opinion.