Ferre v. Salt Lake City

2019 UT App 94
THE UTAH COURT OF APPEALS
JEREMY F ERRE,
Appellant,
v.
S ALT LAKE C ITY AND
S ILVERHAWK ENTERPRISES I NC .,
Appellees.
Opinion
No. 20180236-CA
Filed May 31, 2019
Third District Court, Salt Lake Department
The Honorable Sandra N. Peuler
No. 170904485
Scott O. Mercer and James Adam Knorr, Attorneys
for Appellant
Margaret D. Plane, Paul Nielson and Allison
Elizabeth Parks, Attorneys for Appellee
Salt Lake City
Ryan B. Braithwaite and Daniel K. Brough, Attorneys
for Appellee Silverhawk Enterprises Inc.
JUDGE DIANA H AGEN authored this Opinion, in which
JUDGES K ATE A PPLEBY and R YAN M. HARRIS concurred.
HAGEN, Judge:
¶1 	Homeowner Jeremy Ferre challenges a special exception
granted 	by 	the 	Salt 	Lake 	City 	Planning 	Commission 	(the
Commission), allowing the construction of a two-story house on
a 	neighboring 	lot 	that 	exceeded 	the 	Salt Lake 	City 	Code’s
maximum height allowance. Ferre appealed the Commission’s
decision to the Salt Lake City Land Use Appeals Hearing Officer
(the Hearing Officer), arguing, in part, that the Commission’s
decision was illegal because the Commission did not make the

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required finding that the proposed exception was “in keeping
with the development pattern of the block face.”1 The Hearing
Officer 	upheld 	the 	Commission’s 	decision, 	and 	on 	judicial
review, the district court granted summary judgment in favor of
Salt Lake City, upholding the Commission’s decision. Ferre now
appeals the district court’s ruling, arguing that the Commission’s
decision was illegal as a matter of law because the property was
not located on a “block face” as defined by the ordinance and,
therefore, 	could 	not 	be 	“in 	keeping 	with 	the 	development
pattern of the block face.”
¶2 	We 	conclude 	that 	the 	requirement 	that 	the 	special
exception be consistent with the development pattern of the
block face is inapplicable where the property at issue is not
located 	on 	a 	block 	face. 	Instead, 	the 	Commission 	properly
considered 	the 	characteristics and 	existing 	structures in 	the
neighborhood to determine whether the additional height was in
keeping with the regulatory purpose of the zoning ordinances.
Accordingly, we affirm the district court’s grant of summary
judgment in favor of Salt Lake City.
BACKGROUND
¶3 	Silverhawk Enterprises Inc. began construction of a house
on the lot located directly south of Ferre’s property. Both lots are
zoned in a “single- and two-family residential district.” See Salt
Lake City, Utah, Code § 21A.24.110. The property at issue is
“uniquely situated” and accessed “by a long driveway and
multiple easements” 	from the “block face” street on which
Ferre’s property is located. Silverhawk obtained a construction
1. A “block face” is defined as “[a]ll of the lots facing one side of
a street between two (2) intersecting streets. . . . In no case shall a
block face exceed one thousand feet (1000').” Salt Lake City,
Utah, Code § 21A.62.040.

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permit 	to 	build 	a 	three-story 	pitched-roof 	house, 	but 	after
pouring the foundation and beginning to frame the house,
Silverhawk discovered that it did not dig the foundation deep
enough. As a consequence, Silverhawk needed to modify the
height of the house to comply with the Salt Lake City Code.
Silverhawk consulted the relevant homeowners’ association to
determine whether it would be better to seek a special exception
for additional height for a three-story, pitched-roof house or for
additional height for a two-story, flat-roof house. “[A]t the
request” 	of 	the 	homeowners’ 	association, 	“Silverhawk
incorporated a flat roof [construction plan] . . . on the rationale
that a flat roof would have less visual impact on [neighboring]
views.” The revised construction plans proposed a maximum
building height of twenty-nine feet and eight inches, which is
one foot and eight inches more than permitted for a pitched-roof
house and nine feet and eight inches more than permitted for a
flat-roof house. See id. § 21A.24.110(D). Silverhawk submitted a
special 	exception 	application 	to 	the 	Commission 	for 	the
additional height.
¶4 	The Salt Lake City Code provides exceptions to building
height 	restrictions 	when 	certain 	criteria 	are 	met. 	See 	id.
§ 21A.52.060. The Commission’s senior planner reviewed the
application and issued a report, concluding that the relevant
criteria 	were 	met 	and 	recommending 	that 	the 	Commission
approve the application subject to certain conditions.2 The senior
planner’s report provided that, although the house was “not
directly located on the ‘block face,’” see id. § 21A.24.110(D)(6)(a),
the request for “additional building height complies with the
regulatory intent of Chapter 21A.24” of the Salt Lake City Code,
which ensures that the special exception is “compatible with the
existing 	scale 	and 	intensity 	of 	the 	neighborhood,” 	see 	id.
§ 21A.24.110(A).
2. The recommended conditions are not at issue on appeal and
we therefore do not recite them.

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¶5 	The 	Commission 	held 	a 	public 	hearing 	to 	allow
surrounding property owners to provide commentary and lodge
objections to the special exception application. At the hearing,
Ferre, his attorney, and his brother spoke and objected to the
application, arguing that the house would impair Ferre’s view
and that the Commission should “enforce the ordinance” that
requires flat-roof buildings to not exceed twenty feet in height.
¶6 	Over 	Ferre’s 	objections, 	the 	Commission 	granted 	the
special exception application subject to the senior planner’s
conditions. Ferre appealed the Commission’s decision to the
Hearing Officer and sought a stay of construction.3 Relevant to
this appeal, Ferre “argued that there was insufficient evidence
for 	[the 	Commission] 	to 	find 	that 	the 	[special 	exception
3. The Hearing Officer did not respond to the request for a stay
of construction 	prior to the hearing on 	Ferre’s appeal that
occurred almost six months after Ferre sought the stay. During
the pendency of this appeal, Salt Lake City filed a suggestion of
mootness, arguing that Ferre’s appeal is moot because he did not
seek a stay of construction in the administrative proceedings and
the house has been built and sold to a third party. See Wasatch
County v. Utility Facility Review Board, 2018 UT App 191, ¶ 19, 437
P.3d 	406 	(explaining 	that 	“the 	presence 	of 	the 	[completed
construction project], coupled with [an appellant’s] failure to
seek a stay” renders the “proceeding for judicial review moot”).
But 	the 	record 	shows 	that 	Ferre 	did 	request 	a 	stay 	of
construction 	when 	he 	submitted 	his appeal 	to the 	Hearing
Officer 	in 	accordance 	with 	Salt 	Lake 	City 	Code 	section
21A.52.140, distinguishing this case from Wasatch County. Salt
Lake City has not persuaded us that this issue is moot and we
therefore reach the merits of this appeal. See Salt Lake County v.
Holliday Water Co., 2010 UT 45, ¶ 21, 234 P.3d 1105 (“The burden
of persuading the court that an issue is moot ‘lies with the party
asserting mootness.” (quotation simplified)).

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application] met the requirement of being in keeping with the
development pattern on the block face.”
¶7 	The 	Hearing 	Officer 	disagreed, 	noting 	that 	“the
Commission entertained a discussion with [the senior planner]
regarding the development pattern of the block face and the
basis for the [senior planner’s] finding of compliance.” The
Hearing Officer upheld the Commission’s decision, concluding
that the Commission “had substantial evidence of the building
design of the neighborhood, the site and the relationship of the
proposed structure to its neighbors upon which it could find that
the [special exception application] met the standards set forth in
the Salt Lake City Code.”
¶8 	Ferre 	sought 	judicial 	review of 	the 	Hearing 	Officer’s
decision in district court. Both parties filed cross-motions for
summary judgment. The district court concluded that there is
“no requirement that the building be on a block fac[e] to be
eligible for a special exception,” and declined to disturb the
Hearing Officer’s decision upholding the Commission’s grant of
the special exception.
¶9 	Ferre appeals.
ISSUE AND STANDARDS OF REVIEW
¶10 	Ferre 	contends 	the 	district 	court 	erred 	in 	granting
summary 	judgment 	in 	favor 	of 	Salt 	Lake 	City.4 	Summary
judgment is appropriate when “there is no genuine dispute as to
4. Ferre also argues that the district court “err[ed] in determining
that Ferre was required to marshal the evidence to demonstrate
that the Commission did not comply with” the Salt Lake City
Code. Salt Lake City does not contest Ferre’s position regarding
marshaling. Ferre’s only challenge on appeal is a purely legal
question.

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any material fact and the moving party is entitled to judgment as
a matter of law.” Utah R. Civ. P. 56(a). On appeal from a district
court’s review of an administrative agency’s decision, “we afford
no deference to the [district] court’s decision and apply the
statutorily defined standard to determine whether the court
correctly determined whether the administrative decision was
arbitrary, capricious, or illegal.” McElhaney v. City of Moab, 2017
UT 65, ¶ 15, 423 P.3d 1284 (quotation simplified).
ANALYSIS
¶11 	Under Utah law, a municipality’s land use decisions are
accorded a great deal of deference. See Baker v. Park City Mun.
Corp., 2017 UT App 190, ¶ 16, 405 P.3d 962. A reviewing court
must “presume that a final decision of a land use authority or an
appeal authority is valid” and must uphold the decision unless it
is “(A) arbitrary and capricious; or (B) illegal.” Utah Code Ann.
§ 10-9-801(3)(b)(ii) (LexisNexis Supp. 2018). Here, Ferre contends
that the decision to grant the special exception was illegal
because 	the 	Commission 	did 	not 	strictly 	comply 	with 	the
relevant provisions of the Salt Lake City Code. Specifically, Ferre
argues that the Commission did not, and could not, make a
finding 	that 	the 	additional 	building 	height 	allowed 	by 	the
special exception was “in keeping with the development pattern
on 	the 	block 	face.” 	See 	Salt 	Lake 	City, 	Utah, 	Code
§ 21A.24.110(D)(6).
¶12 	The Salt Lake City Code allows the Commission to grant a
special exception for additional building height when certain
conditions 	are 	met. 	Id. 	§ 21A.52.060(A)–(G). 	In 	addition 	to
meeting the seven general standards in chapter 21A.52, which
are not at issue in this case, the Commission must also determine
that the additional building height “is in keeping with the
development pattern on the block face.” Id. § 21A-24-110(D)(6).
“Block face” is defined as “[a]ll of the lots facing one side of a
street between two (2) intersecting streets. Corner properties
shall be considered part of two (2) block faces, one for each of the

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two (2) intersecting streets. In no case shall a block face exceed
one thousand feet (1,000').” Id. § 21A.62.040.
¶13 	Here, the property is not located on a block face. Instead,
it “is uniquely situated . . . on a steep grade sloping to the
south,” directly south of Ferre’s house, which can be accessed
from the “block face” street “by a long driveway and multiple
easements.” Because the property is not on a block face, the
Commission considered whether the additional height would be
compatible with the surrounding neighborhood in accordance
with the regulatory intent of chapter 21A.24 of the Salt Lake City
Code. See id. § 21A.24.110(A) (“Uses [under this chapter] are
intended to be compatible with the existing scale and intensity of
the neighborhood. The standards for the district are intended to
provide for safe and comfortable places to live and play and to
promote sustainable and compatible development patterns.”).
Ferre argues that this was error and the Commission instead
should have denied 	the special exception application “as a
matter of law” because there is no relevant block face. Under
Ferre’s interpretation of zoning ordinances 21A.24.110(D)(2) and
(D)(6), a special exception for additional height can never be
approved if the building at issue is not located on a block face.
We reject this interpretation.
¶14 	“The 	fundamental 	consideration 	in 	interpreting
legislation, whether at the state or local level, is legislative
intent.” Springville Citizens for a Better Community v. City of
Springville, 1999 UT 25, ¶ 29, 979 P.2d 332. “The best evidence of
the legislature’s intent is the plain language of the statute [or
ordinance] itself.” Marion Energy Inc. v. KFJ Ranch P’ship, 2011 UT
50, ¶ 14, 267 P.3d 863 (quotation simplified). “We read the plain
language 	of 	the 	[ordinance] 	as 	a 	whole 	and 	interpret 	its
provisions in harmony with other [ordinances] in the same
chapter and related chapters.” See LPI Services v. McGee, 2009 UT
41, ¶ 11, 215 P.3d 135 (quotation simplified); see also Patterson v.
Utah County Board of Adjustment, 893 P.2d 602, 606 (Utah Ct.
App. 1995). But when a statute or ordinance is silent as to the

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circumstances presented “and we determine that such a gap was
not the intent of the [legislative body], we must determine the
best rule of law to ensure that the statute is applied uniformly.”
Cox v. Laycock, 2015 UT 20, ¶¶ 41–42, 345 P.3d 689 (quotation
simplified). We therefore “analyze the [ordinance] in its entirety
and harmonize its provisions in accordance with the legislative
intent and purpose.” Id. ¶ 42 (quotation simplified).
¶15 	The ordinance at issue here provides that “additional
building height may be granted as a special exception by [the
Commission] 	subject 	to 	the 	special 	exception 	standards 	in
chapter 21A.52 of this title and if the proposed building height is
in keeping with the development pattern on the block face.” Salt
Lake City Code § 21A.24.110(D)(6)(a). That provision is silent as
to whether a special exception for building height may be
granted where no determination can be made as to whether “the
proposed building height is in keeping with the development
pattern on the block face” because the property at issue is not
located on a block face. Nor is there a separate provision that
would address such a situation. We therefore look to the chapter
as a whole to discern the legislative intent of the ordinance.
¶16 	The “Statement of Intent” of chapter 21A.24 of the Salt
Lake City Code provides:
The residential districts are intended to provide a
range of housing choices to meet the needs of Salt
Lake City’s citizens, to offer a balance of housing
types and densities, to preserve and maintain the
City’s neighborhoods as safe and convenient places
to live, to promote the harmonious development of
residential communities, to ensure compatible infill
development, 	and 	to 	help 	implement 	adopted
plans.
Id. § 21A.24.010(A). Further, the “Purpose Statement” under
ordinance 	21A.24.110(A), 	which 	governs 	the 	properties 	and

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ordinance at issue in this case, provides: “Uses are intended to
be 	compatible 	with 	the 	existing 	scale 	and 	intensity 	of 	the
neighborhood. The standards for the district are intended to
provide for safe and comfortable places to live and play and to
promote sustainable and compatible development patterns.” Id.
¶17 	In applying this statutory scheme, we are mindful of
Utah’s long-standing principle that “because zoning ordinances
are in derogation of a property owner’s common-law right to
unrestricted 	use 	of 	his 	or 	her 	property, 	provisions 	therein
restricting 	property 	uses 	should 	be 	strictly 	construed, 	and
provisions 	permitting 	property 	uses 	should 	be 	liberally
construed in favor of the property owner.” Patterson, 893 P.2d at
606. Because chapter 21A.24 allows a property owner to seek an
exception to otherwise applicable land use restrictions, we must
“liberally construe” the chapter “in favor of the property owner”
seeking a special exception. See id.
¶18 	If 	we 	were 	to 	read 	ordinance 	21A.24.110(D)(6)(a) 	to
categorically exclude all buildings that are not on a “block face,”
as Ferre asks us to do, property owners like Silverhawk would
be 	foreclosed 	from 	seeking 	reasonable 	land 	use 	exceptions
available to other property owners even when the exception is
compatible with existing development. Such an interpretation
would be inconsistent with the regulatory purpose of chapter
21A.24 and our long-standing principle to favor the property
owner seeking a special exception. See Salt Lake City, Utah, Code
§§ 21A.24.010(A), 21A.24.110(A); see also Patterson, 893 P.2d at
606. We therefore conclude that such a categorical exclusion was
not intended. See Cox, 2015 UT 20, ¶¶ 44–46.
¶19 	Instead, 	we 	read 	21A.24.110(D)(6)(a) 	as 	requiring 	the
Commission to find that the proposed additional height of a
building is consistent with the development pattern of the block
face only when the building is actually located on a block face.
See Salt Lake City, Utah, Code § 21A.24.110(A), (D). When a
building is not located on a block face, such a determination

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would be impossible and the Commission can, as it did here,
consider 	“the 	existing 	development 	in 	the 	surrounding
neighborhood” 	to 	determine 	whether 	the 	additional 	height
would be in keeping with the regulatory purpose of chapter
21A.24.
¶20 	Although the ordinance is silent as to the challenge Ferre
raises on appeal, we reject his argument that chapter 21A.24 of
the Salt Lake City Code is intended to categorically exclude
special exceptions for buildings not located on a block face.
Given that the property at issue was not located on a block face,
we 	conclude 	the 	Commission 	properly 	considered 	the
characteristics and existing development of the neighborhood
when it granted the special exception.
CONCLUSION
¶21 	The district court correctly determined that the decision to
grant the special exception application was legal because it
complied with the requirements of the Salt Lake City Code. We
therefore affirm the district court’s grant of summary judgment
in favor of Salt Lake City.