Cook v. Ivins City

2025 UT App 85

THE UTAH COURT OF APPEALS

MICHAEL COOK, MICHAEL BARTON, AND THE DEFENDERS OF
GREATER IVINS,
Appellants,
v.
IVINS CITY AND EWD, LLC,
Appellees.

Opinion
No. 20230768-CA
Filed May 30, 2025

Fifth District Court, St. George Department
The Honorable Keith C. Barnes
No. 220500679

Justin D. Heideman and Justin R. Elswick,
Attorneys for Appellants
Bryan J. Pattison, Attorney for Appellee Ivins City
Matthew J. Ence, Jeff R. Miles, and Devon J.
Herrmann, Attorneys for Appellee EWD, LLC

JUDGE RYAN D. TENNEY authored this Opinion, in which
JUDGES RYAN M. HARRIS and JOHN D. LUTHY concurred as to
Part II. JUDGE HARRIS authored a separate opinion that is joined,
in part and as to the result, by JUDGE LUTHY. JUDGE LUTHY also
authored a separate opinion.

TENNEY, Judge:

¶1 In September 2022, the Ivins City Council voted to approve
a zoning change that allowed development on a large plot of land.
A group of residents filed a petition asking a district court to
review that change, arguing that the vote was taken in violation
of various provisions of the city code and that their due process
rights were violated. The district court rejected both arguments,
Cook v. Ivins City

and the residents now appeal. For the reasons set forth below, we
affirm the district court’s decision.

BACKGROUND

¶2 In April 2022, EWD, LLC (Developer) applied for a zoning
change for 113 acres of property located in Ivins City (the City).
The City’s planning commission “held a public hearing on the
request,” “recommended that the zone be changed,” and then
sent the application and its recommendation to the city council.
On September 1, 2022, the city council, led by the mayor, held a
meeting that included both a public hearing and a discussion to
consider and vote on the proposed zoning change. At the meeting,
and prior to opening the public hearing, the city manager
explained that Developer sought to change the property’s zoning
from single family residential to resort commercial, with the
intent being to build a resort on the property as well as a mix of
other commercial and residential buildings.

¶3 Following some initial discussion, the mayor opened the
hearing for public comment. Many residents, including Michael
Cook and Michael Barton, offered their thoughts. Most of the
residents who spoke, including Cook and Barton, opposed the
proposed zoning change, expressing concerns about the need for
more affordable housing options in the City and an aversion to
short-term rental properties. Altogether, the public hearing
portion of the meeting lasted for nearly an hour, with several
residents using more than their allotted comment time by
speaking on behalf of other residents. In addition to offering
comments during the public hearing, some residents had also
emailed written statements to the city council beforehand. The
mayor assured the attendees that “we want every one of you who
has something important to contribute to this discussion[] to do it
and so we’ll stay here as long as that takes.”

¶4 After the public hearing concluded, the councilmembers
again discussed the proposed zoning change. Councilmember

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Cook v. Ivins City

Scott eventually made a motion to deny the proposed zoning
change, which Councilmember Mehr seconded. This motion
failed 3-to-2, with Councilmembers Scott and Mehr voting yes,
and Councilmembers Murphy, Anderson, and Johnson voting no.
Councilmember Murphy then moved to approve the proposed
zoning change, and Councilmember Anderson seconded the
motion. But this motion also failed 3-to-2, with Councilmembers
Murphy and Anderson voting yes, and Councilmembers Mehr,
Scott, and Johnson voting no. When it came time to cast her vote,
Councilmember Johnson said, “I’m going to say Nay at the
moment because I would like a little more clarification, but we
may go back to the same.”

¶5 The city council then engaged in further discussion about
the proposed zoning change, during which the council members
were given more information about both the project and the
potential conditions that could later be placed on it. After this
discussion, the mayor asked for a third motion “if someone [was]
prepared to give it.” Councilmember Murphy then “renew[ed]”
the motion she had “made earlier”—i.e., her earlier motion to
approve the proposed zoning change. Councilmember Anderson
seconded this motion. This motion passed 3-to-2, with
Councilmember Johnson now voting, without reservation, to
approve the zoning change.

¶6 Later that month, Cook, Barton, and a group of residents
who call themselves The Defenders of Greater Ivins filed a
petition for review with the district court. They have litigated the
case together ever since (including on appeal), and for
convenience, we’ll refer to them as “Cook” moving forward
(given that Cook was the first-named petitioner). In the petition,
Cook pleaded several causes of action. Three of them matter for
purposes of this appeal.

¶7 First, Cook requested a declaratory judgment that under
section 2.06.401 of the Ivins City Code, Councilmember Murphy
should not have been allowed to make a motion to “renew” the
motion to approve the proposed zoning change. This was so, in

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Cook’s view, because Councilmember Murphy was in the
minority when the council took a vote on the earlier motion to
approve the proposed zoning change, and section 2.06.401(2)(a)
states that a “request to reconsider” “must be made by a member
who voted with the majority.” Second, Cook asserted that the vote
on the renewed motion violated section 2.06.401(1) because there
was insufficient justification to reconsider the earlier denial. 1 And
third, Cook asserted that the City had violated his due process
rights by passing the zoning change. Based on these and the other
causes of action, Cook asked the district court to stay and then
invalidate the zoning change.

¶8 Over Cook’s objection, the district court allowed
Developer to intervene in the case. The City and Developer then
each filed a memorandum opposing the petition. After oral
arguments, the district court issued a written ruling concluding
that Cook was not entitled to relief. With respect to the alleged
violations of the Ivins City Code, the court concluded that under
both state laws governing municipal ordinances and provisions
of the Ivins City Code itself, Cook was only entitled to relief if he
established that he had been prejudiced by the alleged violations
of the city code. The court then concluded that it was “not
reasonably likely” that any of the alleged violations “changed the
outcome of the proceeding.” With respect to the due process
claim, the court concluded that there was no violation of Cook’s
due process rights because “members of the public, including the

1. Under Ivins City Code section 2.06.401(1), a “request for
reconsideration shall be based on one or more of the following: (a)
[t]he prior decision was arbitrary, capricious or otherwise illegal;
(b) [t]here was some material irregularity in the proceedings
when the matter was previously voted on by the public body that
makes the previous decision improper; or (c) [there is] [n]ewly
discovered evidence.” Ivins City Code § 2.06.401(1),
https://codelibrary.amlegal.com/codes/ivinsut/latest/ivins_ut/0-
0-0-577 [https://perma.cc/PR9Q-T7QR].

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named-petitioners, were present at the public hearing and were
heard by the City Council.”

ISSUES AND STANDARDS OF REVIEW

¶9 Cook raises two issues on appeal. First, Cook claims that
he was prejudiced by the “procedural irregularit[ies]”—i.e., the
alleged violations of the Ivins City Code—that occurred in
conjunction with the vote to approve the zoning change. “When a
district court reviews an order of a local land use authority and
we exercise appellate review of the district court’s judgment, we
afford no deference to the district court’s decision.” Ogden City
Plaza Invs. Ltd. v. Ogden City Board of Zoning Adjustment, 2022 UT
App 74, ¶ 6, 514 P.3d 562 (quotation simplified).

¶10 Second, Cook claims that his due process rights were
violated when the City approved the zoning change.
“Constitutional issues, including questions regarding due
process, are questions of law that we review for correctness.
However, because these questions require the application of facts
in the record to the due process standard, we incorporate a clearly
erroneous standard for the necessary subsidiary factual
determinations.” Salt Lake City Corp. v. Jordan River Restoration
Network, 2012 UT 84, ¶ 47, 299 P.3d 990 (quotation simplified).

ANALYSIS

I. Procedural Irregularities 2

¶11 As noted, the Ivins City Council took three votes on the
proposed zoning change:

2. As noted in the caption, Part I of this opinion represents the
views of Judge Tenney only. Judge Harris has filed a separate
(continued…)

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• In the first vote, the council rejected a motion to deny it,
with Councilmember Johnson voting in the majority.

• In the second vote, the council rejected a motion to approve
it, with Councilmember Johnson tentatively voting in the
majority and stating, “I’m going to say Nay at the moment
because I would like a little more clarification, but we may
go back to the same.”

• In the third and final vote, which was proposed by
Councilmember Murphy, the council approved a motion
to approve the proposed zoning change, with
Councilmember Johnson again voting in the majority.

¶12 On appeal, Cook argues, as he did below, that the third
vote was unlawful because of two procedural irregularities.

¶13 First, Cook points to Ivins City Code section 2.06.401(2)(a),
which states, “During the meeting in which an agenda item has
been voted on, the public body may reopen the matter by simple
majority vote and reconsider their decision. The request to
reconsider the matter must be made by a member who voted with
the majority.” In Cook’s view, the third motion was improper
because it was made by Councilmember Murphy, who had been
in the minority on the second vote.

¶14 Second, Cook points to Ivins City Code section 2.06.401(1),
which states that a “request for reconsideration shall be based on
one or more of the following: (a) [t]he prior decision was arbitrary,
capricious or otherwise illegal; (b) [t]here was some material
irregularity in the proceedings when the matter was previously
voted on by the public body that makes the previous decision
improper; or (c) [there is] [n]ewly discovered evidence.” Cook

opinion as to this issue that is joined in part and as to the result by
Judge Luthy, and the portion joined by Judge Luthy thus
represents the controlling opinion as to this issue. Judge Luthy has
also filed a separate opinion relating to this issue.

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argues that there was not a sufficient ground under any of these
provisions that would allow the proposed zoning change to be
reconsidered.

¶15 In rejecting Cook’s claims below, the district court
appeared to assume that the third vote was a reconsideration vote
for purposes of section 2.06.401 and that the vote was a violation
of these “reconsideration” provisions, but it then concluded that
any violation of these provisions was harmless.

¶16 As I explain more fully below, I agree with the district
court’s approach. Before explaining why this is so, I think it’s
appropriate to first briefly explain why I would not decide this
issue on any of the alternative grounds proposed by my
colleagues in the two separate opinions. First, Judge Harris
(joined by Judge Luthy) concludes that the reconsideration rules
set forth in section 2.06.401 didn’t need to be followed because the
“agenda item” and “matter” had not been closed at the time of the
third vote. Ivins City, Utah, Code § 2.06.401(2)(a). On the plain
language of section 2.06.401(2)(a), I think this could plausibly go
either way. But no party—including, of some note, the City
itself—has proposed this interpretation to us as a solution to this
issue, so I’m uncomfortable deciding this case on this ground. 3 For
a similar reason, I decline to join Judge Luthy’s alternative
suggestion that the reconsideration rules set forth in section

3. As Judge Harris points out, there are cases allowing an
appellate court to adopt its own interpretation of a statute (or, as
here, an ordinance) when the court concludes that the
interpretations offered by the parties are lacking. I have no quarrel
with that principle. But where I part ways with my colleagues is
in their conclusion that this is the best way to resolve this appeal.
As I explain below, I’m persuaded by the district court’s
conclusion that, even if this was a reconsideration scenario for
purposes of Ivins City Code section 2.06.401(2)(a), Cook was not
prejudiced by any alleged procedural irregularity that may have
occurred. In light of that, I don’t think we need to interpret the
“agenda item” and “matter” provisions to resolve this case.

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2.06.401(1) were possibly invalid under state law because they
improperly tied the hands of the city council. No party has
advanced this argument either, and an opinion from this court
along those lines could have wide-ranging downstream
implications for other city codes and other cases. Without the
benefit of a request from a party or adversarial testing, I would
not base our opinion on this rationale. Finally, Judge Harris
proposes a third path, which rests on the suggestion that because
Councilmember Johnson’s vote on the second motion was not
definitive, the council did not need to invoke the reconsideration
procedures. On a gut level, I share Judge Harris’s suspicion that
Councilmember Johnson may have intended to simply defer her
vote on the second motion. But the mayor understood her to have
voted no, as evidenced by the fact that, in the ensuing discussion,
he twice referred to the second motion as having “failed,” and
Councilmember Johnson didn’t push back either time. The official
minutes likewise state that the second motion “failed.” Since those
on the scene understood Councilmember Johnson to have voted
no, I think that remains the fairest reading of the record.

¶17 The real reason that I think it’s ultimately unnecessary to
decide this issue on any of these bases, however, is that I agree
with the rationale that the district court itself gave for denying
Cook’s request for relief—namely, that Cook was not prejudiced
by any procedural error that may have occurred.

¶18 As explained by our supreme court, “parties challenging a
land use decision must establish that they were prejudiced by the
city’s noncompliance with its ordinances.” Potter v. South Salt Lake
City, 2018 UT 21, ¶ 24, 422 P.3d 803 (quotation simplified). To
obtain relief, a party must show “how, if at all,” the decision in
question “would have been different” without the alleged
violation. Springville Citizens for a Better Cmty. v. City of
Springville, 1999 UT 25, ¶ 31, 979 P.2d 332. While this
standard “should not be insurmountable,” it does require a
showing “that there is a reasonable likelihood that the legal defect
in the city’s process changed the outcome of the proceeding.”
Potter, 2018 UT 21, ¶ 33.

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¶19 Again, Cook’s initial complaint is that the third motion was
made by Councilmember Murphy, even though she was in the
minority on the earlier motion to approve the zoning change. But
I see no reasonable likelihood that this alleged violation of the city
code would actually have changed anything. Since
Councilmember Johnson was in the majority on the second vote,
she would have been authorized to make the motion to
reconsider. And there’s no reason to think that she wouldn’t have
done so if necessary. After all, even if Councilmember Johnson’s
vote on the second motion is treated as a “Nay” vote, it certainly
wasn’t emphatic. Rather, Councilmember Johnson said that she
wanted “a little more clarification,” after which “we may go back
to the same.” And after the council then had more discussion, she
voted to approve the zoning change, thus showing in the most
direct way possible that she was now in favor of it. As a result, I
see no reason to conclude that she wouldn’t have made a motion
to reconsider if it were necessary to accomplish that end.

¶20 Cook next argues that, even if Councilmember Johnson
had made the motion to reconsider, there was still not a sufficient
ground to allow the council to reconsider the matter. Cook points
out that under Ivins City Code section 2.06.401(1), a “request for
reconsideration shall be based on one or more of the following: (a)
[t]he prior decision was arbitrary, capricious or otherwise illegal;
(b) [t]here was some material irregularity in the proceedings
when the matter was previously voted on by the public body that
makes the previous decision improper; or (c) [there is] [n]ewly
discovered evidence.” In Cook’s view, none of those conditions
were present here.

¶21 But I see no reasonable probability that, if Cook had
objected under section 2.06.401(1), this objection would have been
successful—either below or when later reviewed by a court.
Under this provision, the council could reconsider a matter if
there had been “some material irregularity in the proceedings
when the matter was previously voted on by the public body that
makes the previous decision improper.” Ivins City, Utah, Code
§ 2.06.401(1)(b). Here, there had been a “material irregularity in

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the proceedings”—namely, there had just been two conflicting
votes on a proposed zoning change. Id. In the first motion, the
council rejected a vote to deny that proposed zoning change, but
in the second motion, the same council rejected a vote to approve
that same proposed zoning change. As a result, this important
proposal was now left in limbo, and it was an internally
inconsistent limbo at that. If the council did not take another vote,
the project wouldn’t be allowed to move forward (because it
wouldn’t have the necessary zoning change). In practical effect,
this would function as a denial of the proposed change, which
seems highly irregular to me since the council had just specifically
rejected a motion to deny the proposed change. And for the same
reason, allowing the opponents of the proposed zoning change to
essentially prevail (by virtue of the failed second vote) despite a
majority of the council having expressly voted against their
position in the first vote, would make continued reliance on either
of the “previous decision[s] improper.” Id.

¶22 In this circumstance, Developer and the broader public
alike could certainly expect some affirmative resolution by the
city council either way. Something had to give, and I believe that
this provision gave the council the mechanism it needed for
resolving the conflict. This accordingly seems to me to be the very
kind of “material irregularity in the proceedings” that would
allow the council to take another vote, thereby allowing it to break
the impasse. Id. I therefore see no likelihood, much less a
reasonable likelihood, that an objection under Ivins City Code
section 2.06.401(1) would have prevented the council from
reconsidering the issue or doing what it ultimately did. For these
reasons, I would affirm the district court’s conclusion that Cook
has not carried his burden of establishing that he was prejudiced
by the claimed error, and I would affirm the decision below on
this basis.

II. Due Process

¶23 Cook also claims that his due process rights were violated
because he was “not permitted to comment or provide input” in

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Cook v. Ivins City

between the second and third votes. According to Cook, this
violated his due process rights because he wasn’t able to counter
any of the new information that was presented and discussed
between those votes. In response, Developer claims that Cook had
no applicable due process rights at all because Cook did not have
a “protectible property interest” at stake in this vote. (Citing
Petersen v. Riverton City, 2010 UT 58, ¶ 21, 243 P.3d 1261.) But we
need not answer that question. Even assuming that Cook did have
a protectible interest, we conclude that his due process rights were
not violated.

¶24 “At a minimum, due process requires timely and adequate
notice and an opportunity to be heard in a meaningful way.”
Springdale Lodging, LLC v. Town of Springdale, 2024 UT App 83,
¶ 31, 552 P.3d 222 (quotation simplified). “Mere notice is an empty
gesture if it is not accompanied by a meaningful chance to make
your case,” and that “includes the opportunity to present
evidence and argument on that issue before decision.” Id.
(quotation simplified). “But the level of due process required
depends on the context of the proceeding.” Long v. Ethics
& Discipline Comm. of the Utah Sup. Ct., 2011 UT 32, ¶ 29, 256 P.3d
206. In this sense, the inquiry is “flexible and calls for the
procedural protections that the given situation demands.” Id.
(quotation simplified).

¶25 Here, Cook and the other members of the public all had
ample opportunity to be heard—both before the planning
commission and during the public hearing at the city council
meeting—about their reasons for opposing the proposed zoning
change. And in addition to giving nearly an hour’s worth of oral
comments during the public hearing before the city council alone,
residents submitted written comments by email prior to the
meeting. 4

4. Notably, state law does not require that a city council hold a
public hearing before voting on a proposed zoning change, only
(continued…)

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Cook v. Ivins City

¶26 Cook does not argue that these opportunities for public
comment were somehow constitutionally inadequate. Instead, his
complaint is that he didn’t get an additional opportunity to speak
again at the same meeting after the council members were
presented with new information and engaged in additional
debate. But Cook points to no authority holding that a citizen has
a right to a new opportunity to be heard each time a government
body considers some new point or in between successive rounds
of voting. Many authorities suggest that there is no such right. See,
e.g., United States v. Batson, 782 F.2d 1307, 1315 (5th Cir. 1986)
(“Due process requires only that there is at some stage an
opportunity for a hearing.” (quotation simplified)); In re City of
Chicago, 500 F.3d 582, 585 (7th Cir. 2007) (“The due process clause
entitles every litigant to a full and fair opportunity to be heard; it
does not entitle anyone to be heard on the same question over and
over.”); In re Beery, 680 F.2d 705, 712 (10th Cir. 1982) (“While due
process includes the right to be heard, it does not include the right
to be heard a specific number of times on appeal.”).

¶27 Logic does too. In the context of municipal decision
making, it would not be unheard of for there to be back-and-forth
discussions in which new points or ideas were discussed. If
Cook’s argument were correct, this would essentially mean that
citizens, as opposed to legislators, have a constitutional right to
always have the last word before any vote occurs. We see no basis
for imposing such a requirement—either categorically or instead
within the particular context of this case. Having carefully
reviewed the record of these proceedings, we conclude that the
citizens in question were given a meaningful opportunity to be

that the city’s planning commission hold a public hearing before
sending its recommendation on the proposed change to the city
council. See Utah Code § 10-9a-502(1), (2) (requiring a planning
commission to “hold a public hearing on a proposed land use
regulation,” while requiring the “legislative body,” i.e., the city
council, to simply “hold[] a public meeting” before adopting or
rejecting the proposed “land use regulation” (emphases added)).

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heard about whether this proposed zoning change should be
approved. We therefore reject this claim.

CONCLUSION

¶28 Cook has failed to show that he was prejudiced by any
procedural irregularities, and he has likewise failed to show that
his due process rights were violated. We accordingly affirm.

HARRIS, Judge (concurring in part and concurring in the result):

¶29 I join the lead opinion’s factual recitation, as well as Part II
of its legal analysis. And I concur in the result the lead opinion
reaches, namely, that the district court’s decision should be
affirmed. As to Part I of the lead opinion, I agree with that
opinion’s ultimate conclusion that the city council committed no
prejudicial procedural error in its consideration of the zoning
change at issue here. But instead of focusing on whether any
procedural error was prejudicial, I focus on whether there was
any procedural error at all, and I conclude that there wasn’t. On
that basis, I likewise vote to affirm the district court’s decision.

¶30 Both of the asserted procedural errors to which Cook
points turn on provisions from the Ivins City Code that are
applicable to a motion to reconsider. Here, though, what
happened cannot, in context, fairly be described as
“reconsideration,” and therefore the portions of the Ivins City
Code upon which Cook relies do not apply. This is so for two
related reasons.

¶31 First, Councilmember Johnson did not definitively vote
“no” the first time the motion to approve the zoning change came
up for a vote. To be sure, she used the word “Nay” when
describing her vote. But her complete sentence was as follows:
“I’m going to say Nay at the moment because I would like a little
more clarification, but we may go back to the same.” After that
statement, the city council, supplemented by solicited comments

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from legal counsel and others, engaged in continued lengthy
discussion—which Developer claims lasted “about a half hour”—
regarding some of the particulars of the proposed zoning change.
And after that extended discussion, Councilmember Johnson
apparently got the “clarification” she needed, because she then
voted, without reservation, to approve the zoning change. In
context, then, my best reading of the record is that
Councilmember Johnson simply indicated that she couldn’t yet go
along with the motion to approve but that she wanted to postpone
any definitive vote on the pending motion until further discussion
could be had that might lead to “clarification” of certain issues.

¶32 Second, and relatedly, one cannot “reconsider” a matter
that one is still in the middle of considering in the first instance.
Indeed, the relevant provision of the Ivins City Code—the one
that covers “reconsideration[s]” made “[d]uring the meeting in
which an agenda item has been voted on”—recognizes this reality
and places restrictions only on the ability of “the public body” to
“reopen the matter.” Ivins City Code § 2.06.401(2)(a) (emphasis
added). Moreover, the “matter” referred to in this provision is the
“agenda item” at issue, rather than any specific proposed
resolution to that agenda item. See id. (“During the meeting in
which an agenda item has been voted on, the public body may
reopen the matter by simple majority vote and reconsider their
decision.” (emphasis added)). In my view, the inescapable import
of those words is that the provision restricts only efforts, within
the same meeting, to “reopen” an agenda item that has already
been closed. 5 But here, the matter of the proposed zoning

5. Judge Tenney is skeptical of my willingness to consider this
interpretation of the relevant municipal ordinance, because none
of the parties advances this interpretation in their briefs. See supra
¶ 16. Like Judge Tenney, I too am puzzled about why the City, in
particular, does not advance this interpretation. But the parties’
failure to advance it does not mean we cannot consider it. Without
a doubt, the parties to this appeal have placed the interpretation
and meaning of section 2.06.401 of the Ivins City Code—including
(continued…)

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change—the relevant “agenda item”—had not yet been closed
prior to the renewed vote on the motion to approve. As noted,
after Councilmember Johnson’s statement saying “Nay at the
moment” and wanting “more clarification,” the city council
continued to discuss the proposed zoning change at some length.
And it was still engaged in that same uninterrupted discussion,
about the same agenda item, when Councilmember Murphy
indicated that she was “renewing the motion” to approve. In
context, Councilmember Murphy’s motion cannot realistically be
construed as a motion to reconsider the matter, because the city
council had not yet stopped considering the relevant agenda item
in the first place.

specifically the meaning of subsection (2)(a) of that ordinance—
squarely before us. And when parties place the interpretation and
meaning of a particular statutory provision (or a rule, or a
municipal ordinance) squarely before an appellate court, that
court’s interpretive analysis is not limited by the parties’
respective interpretations. See Midwest Family Mutual Ins. v.
Hinton, 2025 UT 4, ¶¶ 37–59 (analyzing and rejecting the various
interpretations of a statute that were advanced by the parties and
by the district court, and concluding that the supreme court’s own
interpretation of the statute—one not advanced by any of the
parties—was the correct one); see also Kaiserman Assocs., Inc. v.
Francis Town, 977 P.2d 462, 464 (Utah 1998) (stating, in a rule-
interpretation case, that “[w]e should not be forced to ignore the
law just because the parties have not raised or pursued obvious
arguments”). After all, “[w]hen interpreting a statute, a court is
not bound to rely only on information the parties provide.” In re
B.T.B., 2020 UT 60, ¶ 40, 472 P.3d 827; see also GeoMetWatch Corp.
v. Utah State Univ. Research Foundation, 2018 UT 50, ¶ 31, 428 P.3d
1064 (“[W]e are not bound by the parties’ interpretation of a
statute.”). “Stated differently, the parties cannot force a court into
a strained interpretation of a statute by the arguments they
advance.” In re B.T.B., 2020 UT 60, ¶ 40. “A court’s duty is to get
the law right and parties cannot push us off that path.” Id.

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¶33 For these reasons, the city council did not engage in a
“reconsideration” of its resolution of the proposed zoning change.
Accordingly, I do not discern any procedural error here on the
part of the city council, whether prejudicial or not, and I reject
Cook’s arguments to the contrary. On that basis, I therefore
agree—albeit for somewhat different reasons—with the lead
opinion’s ultimate conclusion in Part I that Cook has not carried
his burden of establishing prejudicial procedural error.

¶34 Because I agree with the ultimate conclusion the lead
opinion reaches in Part I, and because I agree wholeheartedly
with the remainder of that opinion, I likewise vote to affirm the
district court’s order.

LUTHY, Judge (concurring in part and concurring in the result):

¶35 Like Judge Harris, I join the lead opinion’s factual
recitation, Part II of its legal analysis, and the result it reaches in
Part I of its legal analysis. I also join a dispositive portion of Judge
Harris’s concurring opinion, making that portion of his opinion
the controlling word on the first issue in this appeal. I write
separately to identify and explain the disagreements I have with
my colleagues’ respective analyses on that issue.

¶36 “The enactment and amendment of zoning ordinances is
fundamentally a legislative act,” Bradley v. Payson City Corp., 2003
UT 16, ¶ 11, 70 P.3d 47 (quotation simplified), and the city council
is the City’s legislative body, see Utah Code § 10-3b-105(1). A
legislative body’s inability to reach resolution on a particular
matter even after multiple votes is not unusual, especially at the
local level, where preliminary procedural steps such as committee
hearings and multiple readings of proposed legislation are
generally not employed. Ongoing debate, deliberation,
compromise, reflection, and reconsideration are all ordinary and
inherent components of the legislative process. Thus, absent a
constitutional or statutory imperative indicating otherwise (and
none has been identified for us), I see little to suggest any
“material irregularity” and certainly nothing separately

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Cook v. Ivins City

“improper” in the failure of a municipal legislative body to reach
resolution regarding a legislative proposal—either by passing it
or by definitively defeating it—after two votes. Accordingly,
unlike Judge Tenney, I do not view the city council’s first two
votes on the proposed zoning change as providing grounds for
reconsideration under section 2.06.401(1) of the Ivins City Code.
And for this reason, I do not join his contrary analysis and
conclusion in Part I of the lead opinion. 6

6. While I do not agree that the council’s first two votes provided
grounds for reconsideration under section 2.06.401(1), I have
questions about the validity of section 2.06.401(1) to impede the
city council’s ability to exercise its legislative powers in the first
instance. As already noted, section 2.06.401(1) restricts the city
council’s reconsideration of any matter unless (a) its prior
decision “was arbitrary, capricious or otherwise illegal”;
(b) “[t]here was some material irregularity in the proceedings
when the matter was previously voted on . . . that makes the
previous decision improper”; or (c) “[n]ewly discovered
evidence” has since come to light. Ivins City Code § 2.06.401(1).
At first blush at least, this provision requires the city council to
take a once-and-done approach to legislative decision making. It
appears that under it, after a legislative matter has once been
considered, the council is powerless to ever address it again—
either in that meeting or any other—absent extraordinary
circumstances. A councilmember’s changed view of the matter,
the emergence of a compromise approach to the proposal, or even
an intervening election that changes the composition of the
legislative body notwithstanding, the city council appears to be
flatly prohibited from reconsidering any legislative matter in the
ordinary course. Such a restriction seems difficult to square with
the Utah Legislature’s plenary grant of authority to the city
council to “exercise[] the legislative powers and perform[] the
legislative duties and functions of the municipality.” Utah Code
§ 10-3b-105(1). However, the ultimate validity of section
2.06.401(1) need not be resolved here because, as explained below,
(continued…)

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Cook v. Ivins City

¶37 In his concurring opinion, Judge Harris concludes, for two
reasons, that the third motion on the proposed zoning change
cannot fairly be described as a “reconsideration” and, thus, that
the city council committed no procedural error. The first reason
he gives is that Councilmember Johnson’s nay vote on the second
motion was really an indication that she wanted to postpone any
definitive action on that motion. See supra ¶ 31. I agree that this
appears to have been her intent. However, Councilmember
Johnson’s individual intent cannot be construed as the action of
the council. A legislative body acts only as a body, not through
the voice or intent of a single member. Hence, Councilmember
Johnson’s expressed inclination to merely postpone a vote on the
second motion never became the action of the council. Instead, as
a body, the council voted on—and rejected—the second motion.
The council acknowledged in the moment the result of that vote,
and it recorded that result in its minutes. For this reason, I do not
join the analysis in paragraph 31 of Judge Harris’s concurring
opinion.

¶38 The second reason Judge Harris gives for why the third
motion cannot be fairly described as a “reconsideration” is that a
matter cannot be reconsidered while it is still being considered in
the first instance; the “matter” referred to in section 2.06.401 is the
“agenda item” at issue, not any particular motion regarding that
item; and, thus, because consideration of the agenda item at issue
here—the proposed zoning change—had not been closed, the
third motion regarding that proposed change did not constitute a
reconsideration of the matter. See supra ¶¶ 32‒33. I agree with this
analysis and join this portion of Judge Harris’s concurring
opinion. On that singular basis, I am also able to agree with the
lead opinion’s ultimate conclusion that Cook has not carried his
burden of establishing prejudicial procedural error.

I agree with Judge Harris that the recurring votes on the proposed
zoning change did not amount to reconsiderations of the matter.

20230768-CA 18 2025 UT App 85