2023 UT App 94

THE UTAH COURT OF APPEALS

MICHAEL BERMES,

Appellant,

v.

SUMMIT COUNTY,

Appellee.

Opinion

No. 20220338-CA

Filed August 24, 2023

Third District Court, Silver Summit Department

The Honorable Richard E. Mrazik

No. 200500508

Eric P. Lee and Matt J. Pugh,

Attorneys for Appellant

Mitchell A. Stephens, Margaret Olson, and Helen E. 

Strachan, Attorneys for Appellee

JUDGE RYAN D. TENNEY authored this Opinion, in which 

JUDGES GREGORY K. ORME and JOHN D. LUTHY concurred.

TENNEY, Judge:

¶1 Michael Bermes owns a lot on a ridgeline that overlooks 

part of Summit County. In 2015, Bermes received permission from 

the county to build a large home on his lot. In 2020, Bermes sought 

permission to build an additional 7,000-square-foot accessory

building on the lot. The Summit County Council denied this 

request and the district court later upheld that denial. Bermes now 

appeals. For the reasons set forth below, we affirm the district 

court’s decision. 
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BACKGROUND

¶2 Michael Bermes owns a 6.35-acre, 276,000-square-foot lot

in Summit County. Bermes’s lot sits atop a ridgeline, it slopes 

downward “in all directions,” and a structure on the lot “has the 

potential to project into the horizon line” when viewed from 

nearby roads. Bermes’s property is also in the county’s hillside 

stewardship zone.

¶3 The Snyderville Basin Development Code (Snyderville 

Code) governs construction on lots in Bermes’s area. The 

Snyderville Code’s general plan “was developed to ensure that 

the resort and mountain character of the basin is to be embraced 

and protected, while suburban development patterns, which 

erode the unique character of the basin, [are] discouraged and, to 

the extent possible, prohibited.” Snyderville Code § 10-1-1.A.

Snyderville Code section 10-4-3 is titled “Critical Lands,” and 

subsection C governs development on ridgelines.

¶4 Under section 10-4-3.C, “[s]tructures located on ridgelines 

as viewed from” public roads are “prohibited.” But there’s an 

exception to this prohibition for lots that preexisted the passage 

of the Snyderville Code. For these lots, the Snyderville Code 

allows “a structure to project into the horizon line as viewed from 

a designated roadway” if the structure meets the “special 

development standards in subsection [C.1.a] of this section.” Id.

§ 10-4-3.C.1. Bermes’s lot preexisted the Snyderville Code and is 

thus subject to the special development standards.

¶5 This case turns on the special development standard set 

forth in section 10-4-3.C.1.a(3), a provision that we’ll refer to as the 

Site Grading Provision. In the part most relevant here, the Site 

Grading Provision provides that for “[l]ots greater than five (5) 

acres,” “[s]ite grading shall be minimized” and the “limit of 

disturbance area shall not exceed twenty thousand (20,000) square 

feet.” Id. § 10-4-3.C.1.a(3)(A)(iii).
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¶6 In 2015, Bermes requested approval to construct a nearly 

15,000-square-foot home on his lot. The proposed disturbance 

area for his home was 43,805 square feet, which was 23,805 square 

feet above the 20,000-square-foot limit set forth in the Site Grading 

Provision. Bermes accordingly applied to the Summit County 

Board of Adjustment (which was the Summit County body that 

decided such requests at the time) for a variance from the 

disturbance limit. The Board of Adjustment approved the 

variance under Snyderville Code section 10-4-3.C, and Bermes 

then constructed his home.1

¶7 This case and this appeal center on Bermes’s subsequent 

request for permission to build an additional accessory building 

on his property.2 Some of Bermes’s initial plans for his home had 

1. In the process of constructing this home, Bermes ended up 

disturbing an area that was 100,000 square feet more than the 

approved 43,805 square feet of disturbance, and he did so by 

placing debris from his basement construction on an unapproved

(and undisturbed) area. Upon learning of this, Summit County 

initiated an enforcement action, after which Bermes removed 

most of the material that exceeded the scope of the approved 

disturbance. Bermes then hydroseeded the disturbed area, though 

most of the native vegetation in the area had been destroyed.

2. In the proceedings below and again on appeal, the parties have 

often referred to this proposed building as a “barn.” In the special 

exception application that will be discussed shortly, however, 

Bermes said that his proposed building would be around 7,000 

square feet and would “be used for[] car parking, Pickup Truck 

parking, Boat parking, RV Trailer parking, Dirt Bike storage, 

Snowmobile storage, ATV storage, Vehicle lift, General storage, 

Hobby Shop, metal/wood working, Other similar uses TBD, 

Possible future horse stall, and storage.” Given Bermes’s wide-

(continued...)
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included an additional 2,600-square-foot accessory building on 

the property. Bermes’s final proposal for his home in 2015, 

however, did not include the proposed accessory building. 

¶8 In 2020, Bermes submitted a new plan to build an accessory 

building on his property. In this proposal, Bermes said that his 

proposed building would involve an additional 9,781-square-foot 

disturbance area on his lot.

¶9 In an initial response to Bermes’s application for a building 

permit, a Summit County planner informed Bermes that she was 

“not anticipating any major issues.” But another county planner

soon informed Bermes that his “property [was] unable to qualify 

for any additional structures”—including, in other words, the 

proposed accessory building—“without an appropriate 

exception.” This county planner informed Bermes that to build 

the accessory building, Bermes would “need to receive a Special

Exception[3] to the disturbance limit” and that Summit County 

would then “process the . . . Permit accordingly.” 

¶10 As noted, Bermes’s request for a variance in 2015 had been 

decided by the Board of Adjustment. By the time that Bermes 

sought leave to build his accessory building in 2020, Summit 

County’s procedures had been changed so that it was now the 

Summit County Council (the Council) that would have to 

ranging description of the intended uses for this proposed 

building, we think it more correct to refer to it as an “accessory 

building.” While we won’t alter the few references to it as a “barn” 

that we quote from the record or the briefing, we’ll otherwise refer 

to it as an accessory building throughout this opinion. 

3. As indicated shortly below, the term “special exception” is not 

capitalized in the code provision from which it’s drawn. While 

we’ll follow suit in this opinion, we’ll leave untouched any 

references from the record where it was capitalized.
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approve a special exception. Bermes accordingly submitted a land 

use application asking for a special exception.

¶11 The section in the Snyderville Code dealing with special 

exceptions contains a subsection entitled “Criteria for Approval.” 

Snyderville Code § 10-3-7.B. Under this subsection, the Council

shall not approve a special exception unless the 

applicant demonstrates that: 1. The special 

exception is not detrimental to the public health, 

safety and welfare; 2. The intent of the development 

code and general plan will be met; . . . 3. The 

applicant does not reasonably qualify for any other 

equitable processes provided through the 

provisions of this title; and . . . 4. There are equitable 

claims or unique circumstances warranting the 

special exception.

Id. § 10-3-7.B(1)–(4) (emphasis added).4

¶12 Snyderville Code section 10-3-7.D.2 also states that the 

Council “shall review” both the special exception application and 

a “staff report.” A Summit County planner prepared a 150-plus

page staff report on Bermes’s application for leave to build the 

accessory building. This report included an extensive background 

section, including a history of the construction on Bermes’s 

property, details on the accessory building construction request, 

4. As discussed below, we conclude that the emphasized “and” in 

this provision indicates that an applicant must establish that all 

four of the criteria were satisfied.

Of perhaps lesser importance, we note the absence of an 

Oxford comma in the Snyderville Code’s statement of the first 

criterion. In deference to the apparent choice made on this front 

by the code’s drafters, we’ll proceed similarly when quoting or 

discussing this criterion in this opinion.
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public comments that had been received, and photos of Bermes’s 

property.

¶13 This report then set forth an analysis of each of the four

special exception criteria set forth in section 10-3-7.B. Of note, the 

planner concluded that Bermes’s application failed to satisfy any 

of the criteria. On the first criterion (public health, safety and 

welfare), the county planner concluded that Bermes’s accessory 

building application did “not take into consideration the harmony 

with the surrounding mountain and resort environment and [did] 

not protect the scenic qualities of the Snyderville Basin.” On the 

second criterion (intent of the development code and general 

plan), the county planner concluded that granting a special 

exception “would not be consistent with the policies and goals of 

the Snyderville Basin General Plan nor would it be consistent with 

the intent” of the Snyderville Code.

5 And on the fourth criterion 

(equitable claims or unique circumstances), the planner 

concluded that Bermes had “not explained what the equitable 

claims and unique circumstances [were] in this request,” that 

Bermes’s “request [was] not a unique circumstance” and any 

“uniqueness of the lot is something that [Bermes] was aware of 

5. With respect to both the first and second criteria, the planner 

further concluded that Bermes’s proposal did not “[p]rotect the 

environmentally sensitive nature of the land,” “[p]romote a 

community of neighborhoods, where rural open space is 

interspersed with traditional small town characteristic forms as 

the dominant patterns of development,” or “[e]nsure that 

individual residential development projects, to the extent 

reasonable, minimize [their] impact on the desired community 

balance.” (Quoting Snyderville Code § 10-1-1.D.)
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when [he] purchased the lot and constructed the home,” and that 

there was accordingly “no evidence of a special circumstance.”6

¶14 Despite having discussed the special exception criteria 

from Snyderville Code section 10-3-7 through much of the report, 

the “Conclusions of Law” section of the report incorrectly 

referenced the “Zoning Variances” criteria that are found in 

Snyderville Code section 10-3-6. And the planner then included a 

recommendation in the report that the Council “conduct a public 

hearing, review the proposal, and deny the application according 

to the Findings of Fact and Conclusions of Law as outlined in this 

Staff Report.”

¶15 The Council scheduled a public hearing to consider 

Bermes’s application. Before the meeting occurred, Bermes’s 

counsel submitted a “response to the Staff Report” in which he 

argued that the 20,000-square-foot limit from the Site Grading 

Provision applied per project, rather than cumulatively as to a 

particular lot, and that because his proposed 9,781 square feet of 

disturbance for this project was less than 20,000 square feet, he did 

not need a special exception at all.

¶16 In October 2020, the Council held a public hearing to 

consider Bermes’s request. Through counsel, Bermes again 

argued that the 20,000-square-foot requirement applied only on a 

per project basis. Beyond that, Bermes argued that his proposed 

building satisfied each of the four special exception criteria, and 

individual members of the Council engaged his counsel in 

discussion (albeit briefly) on the first, second, and fourth criteria.

During this discussion, members of the Council and Bermes also 

6. The staff report also concluded that Bermes’s requested 

exception failed to satisfy the third criterion. But the Council 

eventually conceded that Bermes had satisfied this criterion and 

Summit County has not argued otherwise on appeal. That 

criterion is accordingly not at issue.
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noted the Board of Adjustment’s 2015 finding that it would create 

a hardship for Bermes if his request for a special exception for his 

home was denied. They then discussed whether this would be 

inconsistent with the assertion from the staff report that Bermes 

would suffer no hardship if the Council now denied his request 

for a special exception to build the accessory building. Finally, the 

Council heard comments from many members of the public, all of 

whom opposed Bermes’s request for permission to build this 

accessory building. At the close of the meeting, the Council 

decided to “continue the matter” to allow for “deliberation and 

[a] possible decision at a later date.”

¶17 The Council next addressed Bermes’s request at a public 

hearing that was held in November 2020. There, the Council did 

not hear any further arguments. Instead, individual council 

members shared their opinions about the request, after which the 

Council voted to deny it. At the close of this discussion, the 

Council noted that its legal counsel would prepare a written 

decision to comport with the Council’s vote.

¶18 In a written decision that was issued in December 2020, the

Council concluded that the Site Grading Provision’s disturbance 

area limit applied cumulatively. It then concluded that, because 

of the disturbance area already associated with Bermes’s past 

construction, Bermes now needed a special exception to build his 

proposed accessory building. On this front, the Council noted that 

“[t]his matter came before” it “on a request for a Special 

Exception” and that Bermes was “requesting a Special 

Exception.” Under the heading “Findings of Fact,” the Council 

did not identify the special exception criteria by the numbers 

given in Snyderville Code section 10-3-7.B, but it did discuss the 

substance of each criterion, even employing the particular 

verbiage used for each criterion that was used in section 10-3-7.B.

Under a “Conclusions of Law” heading at the end, however, the

decision referred to the criteria for zoning variances that are set 
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forth in Snyderville Code section 10-3-6, as opposed to the special 

exception criteria set forth in section 10-3-7.B.7

¶19 Bermes filed a timely Petition for Review of the Council’s 

decision in district court, arguing that the decision was both 

(1) “arbitrary and capricious because it [was] not supported by 

7. Though not identical, there is much similarity between the 

criteria for a zoning variance under section 10-3-6.B and the 

special exception criteria set forth in section 10-3-7.B. Specifically, 

the variance criteria are:

1. Literal enforcement of this title would cause an 

unreasonable hardship for the applicant that is not 

necessary to carry out the general purpose of the 

land use ordinances; 2. There are special 

circumstances attached to the property that do not 

generally apply to other properties in the same 

district; 3. Granting the variance is essential to the 

enjoyment of a substantial property right possessed 

by other property in the same zone; 4. The variance 

will not substantially affect the general plan and will 

not be contrary to the public interest; and 5. The 

spirit of the provisions of this title is observed and 

substantial justice done. 

Snyderville Code § 10-3-6.B.1–5. And as already noted, the special 

exception criteria are:

1. The special exception is not detrimental to the 

public health, safety and welfare; 2. The intent of the 

development code and general plan will be met; . . . 

3. The applicant does not reasonably qualify for any 

other equitable processes provided through the 

provisions of this title; and . . . 4. There are equitable 

claims or unique circumstances warranting the 

special exception.

Id. § 10-3-7.B.1–4.
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substantial evidence in the record” and (2) “illegal because it 

[was] based on incorrect interpretations of the Code and [was] 

otherwise contrary to law.”

¶20 In a ruling issued on June 3, 2021, the district court first 

concluded that the 20,000-square-foot disturbance limit set forth 

in the Site Grading Provision is cumulative, not per project. But 

the court then concluded that the Council’s “[d]ecision denying 

[Bermes’s] application for a special exception was illegal” because 

its conclusions focused on the zoning criteria, rather than the 

special exception criteria. The court accordingly reversed the 

decision and remanded with instructions for the Council “to make 

findings and conclusions as required by Utah law” regarding the 

criteria set forth in “section 10-3-7.”

¶21 After the district court issued this decision, Bermes sent a 

letter to the Council suggesting that it would “benefit from further 

discussion regarding a point raised during earlier administrative 

proceedings but not fully explored until the judicial proceedings: 

that the disturbance that will be created to build [Bermes’s] barn 

is not governed by the ‘site grading’ limit . . . but, instead,” by 

disturbance area limits that are articulated in a neighboring 

provision from the Snyderville Code. According to Bermes, the 

Site Grading Provision was inapplicable because the proposed 

accessory building didn’t involve an activity that qualified as “site 

grading” at all.

¶22 On June 30, 2021, the Council met to again discuss Bermes’s 

application. At the outset of the meeting, the county attorney 

advised the Council that there was “no need for further 

deliberations, given that [the Council] previously analyzed this 

matter using the special exception criteria and only its written 

decision was flawed [in] that it focused on variance criteria.” The 

county attorney expressed her view that the Council had already 

“considered the four” special exception criteria, even though 

those criteria “didn’t go into the written decision.” From this, the 
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20220338-CA 11 2023 UT App 94

county attorney saw no need “for reargument,” agreeing with a 

member of the Council that their task was to “correct[] the written 

document based on the conversations and decision [the Council] 

made previously.” In response, Bermes’s counsel said that “if the 

[Council] is inclined to reconsider some of these issues,” he was,

“of course, happy to address them,” but he also stated, “I don’t 

think there is any reason to belabor these points any further.” The 

Council then voted in favor of “a motion directing legal counsel 

to prepare a written legal decision which comport[ed] with [the] 

Council’s prior deliberations.”

¶23 The Council issued a new written decision (the Amended 

Decision) on August 3, 2021. The Amended Decision included 

much of the same analysis as the previous decision, but it now 

changed the Conclusions of Law to correspond with the criteria 

for a special exception set forth in Snyderville Code section 

10-3-7.B. The Amended Decision also incorporated, “by reference, 

the October 21, 2020[,] and November 4, 2020[,] Summit County 

Council Minutes as well as the transcripts of both of those 

meetings.”

¶24 Bermes then filed a petition asking the district court to 

reverse the Council’s decision to deny his request for a special 

exception. There, Bermes argued that the Amended Decision was 

illegal, primarily because it “lack[ed] any indication of the 

‘substantive review’ required” under Utah law, and that it was 

also arbitrary and capricious because there was substantial 

evidence that he successfully met all of the special exception 

criteria.

¶25 The Council opposed that petition, after which the district 

court heard oral arguments on it. At the close of those arguments, 

the district court ruled from the bench that the Amended Decision 

was neither illegal nor arbitrary and capricious. First, the court 

ruled that the Amended Decision was legal because the Council 

had given Bermes’s request the level of review required by law.
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The court noted that the “record show[ed] lengthy discussions 

before the Council led by [Bermes’s counsel] of the four [criteria] 

relevant to approval of a special exception under Section 10-3-7”

of the Snyderville Code and that the Council’s Amended Decision 

subsequently “reache[d] a conclusion regarding each [criterion].”

¶26 Second, the court ruled that the Amended Decision was not 

arbitrary or capricious because, after “consider[ing] all evidence 

in the record, both favorable and contrary to the [Council’s] 

decision,” a reasonable mind could find there was substantial 

evidence supporting the Council’s Amended Decision. The court 

pointed out that the Amended Decision “include[d] 36 findings of 

fact” and made “a conclusion of law regarding each of those”

criteria “from 10-3-7.” And it emphasized that if the Council’s 

rejection of “any one of those conclusions [was] supported by 

substantial evidence,” this would be sufficient “to defeat the 

application for special exception.” Examining the record, the 

court then ruled that a “reasonable mind” could conclude that 

Bermes had failed to establish the first, second, or fourth criteria, 

and it pointed to evidence from the record supporting each 

conclusion.

¶27 The district court subsequently issued a brief written 

ruling that incorporated and memorialized this decision, after 

which Bermes timely appealed.

ISSUES AND STANDARDS OF REVIEW

¶28 Bermes first challenges the district court’s conclusion that 

the Council’s denial of his request for a special exception was 

legal. A land use decision is illegal if it “violates a law, statute, or 

ordinance in effect at the time the decision was made.” Outfront 

Media, LLC v. Salt Lake City Corp., 2017 UT 74, ¶ 12, 416 P.3d 389

(quotation simplified). We review a lower court’s “interpretation 

of a set of statutes” or “ordinances” for correctness. Id.
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¶29 Bermes next challenges the district court’s conclusion that 

the Council’s decision was not arbitrary or capricious. On this, we 

“afford no deference” to the district court’s decision. Northern 

Monticello All. LLC v. San Juan County, 2023 UT App 18, ¶ 11, 526 

P.3d 829 (quotation simplified). Instead, we “apply the statutorily 

defined standard to determine whether the court correctly 

determined whether the administrative decision was arbitrary, 

capricious, or illegal.” Id. (quotation simplified). “A decision is 

arbitrary and capricious only if it is not supported by substantial 

evidence, which is that quantum and quality of relevant evidence 

that is adequate to convince a reasonable mind to support a 

conclusion.” Outfront Media, 2017 UT 74, ¶ 12 (quotation 

simplified).

ANALYSIS

¶30 Bermes argues that the Amended Decision was both (I) 

illegal and (II) arbitrary and capricious. We disagree. 

I. Legality

¶31 “A court shall presume that a final land use decision of a 

land use authority or an appeal authority is valid unless the land 

use decision” is either “arbitrary and capricious” or “illegal.” 

Utah Code § 17-27a-801(3)(b); see also Staker v. Town of Springdale, 

2020 UT App 174, ¶ 17, 481 P.3d 1044 (“We will not disturb the 

decision of a land use authority or an appeal authority unless the 

decision is arbitrary and capricious or illegal.” (quotation 

simplified)). A land use decision is illegal if it “violates a law, 

statute, or ordinance in effect at the time the decision was made.” 

Outfront Media, LLC v. Salt Lake City Corp., 2017 UT 74, ¶ 12, 416 

P.3d 389 (quotation simplified). 

¶32 In Bermes’s view, the Amended Decision was illegal 

because (A) the proposed accessory building did not require “site 
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grading” as that term is used in the Snyderville Code; (B) even if 

it did, the Site Granding Provision’s disturbance limit should have 

been measured per project, not cumulatively; and (C) the Council 

failed “to conduct the substantive review required by Utah Code 

section 17-27a-508(1)(a)(i).” We disagree on each front.

A. “Site Grading”

¶33 As noted, the Council applied Snyderville Code section

10-4-3.C.1.a(3)(A)(iii) to Bermes’s application for permission to 

construct an accessory building. As also noted, the Site Grading 

Provision limits the “disturbance area” that can be caused by “site 

grading” on a particular lot.

¶34 Bermes argues that while the Site Grading Provision 

obviously “limits permissible disturbance, it does so for site 

grading, not barn construction.” And we acknowledge at least 

some potential force to Bermes’s position. As Bermes points out, 

the Site Grading Provision is set off by an initial inline subheading 

that refers to “Grading Limitations,” after which it declares that 

“[s]ite grading shall be designed to create visual interest by 

combining terraced retaining walls, landscape pockets with 

screen plantings, landscaping and variations in the texture and 

pattern of wall materials.” Snyderville Code § 10-4-3.C.1.a(3). 

Bermes argues that the use of the term “grading” and the nature 

of the included examples suggest that this is a landscaping

provision, rather than one that would be applicable to the 

proposed construction of a barn or accessory building. In 

Bermes’s view, the Council should have instead applied the “very 

next section of the Code”—Snyderville Code section 10-4-

3.C.1.a(4)(A). And as final support for his position, Bermes points 

to caselaw that states zoning ordinances “restricting property 

uses should be strictly construed, and provisions permitting 

property uses should be liberally construed in favor of the 

property owner.” Patterson v. Utah County Board of Adjustment, 893 

P.2d 602, 606 (Utah Ct. App. 1995).
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¶35 But even accounting for these arguments, we ultimately 

disagree with Bermes’s position and instead conclude that the Site 

Grading Provision was indeed applicable to his proposed project.

¶36 The term “site grading” is not defined in the Snyderville 

Code. Where a term is “not defined, we assess the ordinary 

meaning of the term using the dictionary as our starting point.” 

In re C.N., 2023 UT App 41, ¶ 26, 529 P.3d 1030 (quotation 

simplified).8 In a construction context like this one, the word 

“grade” means “to level off to a smooth horizontal or sloping 

surface.”9 In other words, it refers to “the work of leveling dirt.”10

And while the word “grading” is linked to the word “site” in this 

provision, the word “site” simply refers to “the spatial location of 

an actual or planned structure.”11 Thus, taken together, the phrase 

seems to refer to the act of leveling off (or, instead, creating a 

8. “Municipal ordinances” like the Snyderville Code “are subject 

to ordinary rules of statutory interpretation.” Ogden City Plaza 

Invs. Ltd. v. Ogden City Board of Zoning Adjustment, 2022 UT App 

74, ¶ 7, 514 P.3d 562, cert. denied, 525 P.3d 1262 (Utah 2022); see also 

Pinetree Assocs. v. Ephraim City, 2003 UT 6, ¶ 13, 67 P.3d 462 (“We 

interpret municipal and county ordinances and resolutions 

according to our well-settled rules of statutory interpretation and 

construction.”). 

9. Grade, Merriam-Webster Dictionary, https://www.merriamwebster.com/dictionary/grading [https://perma.cc/LUR7-5WZD]. 

10. Grade, Cornell University Facilities and Campus Services 

Facilities Operations Glossary of Construction Terms, https://ope

rations.fs.cornell.edu/info/ir_glossary.cfm [https://perma.cc/NHT

7-KG57]. 

11. Site, Merriam-Webster Dictionary, https://www.merriamwebster.com/dictionary/site [https://perma.cc/D5K9-4BYT]. 
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20220338-CA 16 2023 UT App 94

particular slope on) the surface of the ground underlying an 

actual or planned structure.12

¶37 So viewed, the act of grading the land in question was a 

necessary step in Bermes’s proposed project. Again, Bermes’s 

property is located on a ridgeline hill that slopes downward “in 

all directions,” and yet Bermes now proposed to build a 7,000-

square-foot accessory building on it. To build this structure, he 

would of course need to first level or smooth the dirt, and he 

hasn’t contended otherwise. Because of this, and based on the 

plain language alone, this project did indeed seem to require “site 

grading.” 

¶38 It’s true, as Bermes points out, that there was language 

within the Site Grading Provision that referred to the inclusion of 

“terraced retaining walls,” “landscape pockets with screen 

12. Though not dispositive, we note that this phrase has 

been defined similarly in some other publicly available sources

as well. See, e.g., Turner, What is Site Grading?, 

HomeQuestionsAnswered, https://www.homequestionsanswere

d.com/what-is-site-grading.htm [https://perma.cc/FY3F-742R] 

(noting that “[s]ite grading is the process of adjusting the slope 

and elevation of the soil around a home or building” and that 

“[p]rior to construction or renovation, site grading may be 

performed to even out the surface and provide a solid 

foundation”); Westmier Construction, What Is Site Grading & How 

Is It Used in Construction?, Connect2Local, https://connect2local.c

om/l/338839/c/362163/what-is-site-grading---how-is-it-used-inconstruction [https://perma.cc/8XLS-B69N] (“Site grading is a 

technique used by excavation professionals to adjust the slope of 

an area prior to building construction.”); A Guide to Grading in 

Construction, SafetyCulture, https://safetyculture.com/topics/land

-grading/ [https://perma.cc/2A9G-NKEG] (“Grading in 

construction, typically called site grading, refers to the act of 

ensuring a level base or getting a specific slope on the land.”).
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plantings,” and “landscaping and variations in the texture and 

pattern of wall materials.” Snyderville Code § 10-4-3.C.1.a(3). But 

even so, we disagree with Bermes’s claim that these landscapingrelated references somehow limited the Site Grading Provision to 

projects that were confined to landscaping as opposed to the 

construction of a building. Instead, we agree with the Council’s 

characterization on appeal that these are best read as “aesthetic 

requirement[s] that appl[y] when site grading occurs on a lot,” 

rather than as definitional limitations on what the term “site 

grading” means. Indeed, we note here that the Site Grading 

Provision itself contains a subsection under which “[s]ite grading 

shall be minimized and shall not exceed the following limit of 

disturbance area (including all portions of the driveway and 

construction activity).” Id. § 10-4-3.C.1.a(3)(A) (emphases added). 

The terms “driveway” and “construction activity” would not 

ordinarily be restricted to landscaping-related projects, and yet 

the Site Grading Provision includes them under its auspices too. 

Given the use of these non-landscaping terms, and given the more 

general (and commonly accepted) definitions applicable to the 

term “site grading,” we see no basis for limiting the Site Grading 

Provision’s applicability to landscaping projects.

¶39 This leaves Bermes’s argument that the Site Grading 

Provision doesn’t apply and that it’s instead the neighboring 

provision, Snyderville Code section 10-4-3.C.1.a(4)(A), that 

should govern his application. This neighboring provision has an 

inline subheading “Landscape Requirements”—which is at least 

a touch ironic, given that Bermes is arguing that the Site Grading 

Provision is inapplicable precisely because it is limited to 

landscaping, not the construction of the accessory building. In any 

event, this neighboring provision governs the “[r]emoval of and 

disturbance of existing vegetation,” and it “limit[s]” the 

“disturbance area” to an area “no greater than twenty feet (20’) 

from the building footprint.” Id. At oral argument, Bermes 

claimed that because the Site Grading Provision measures the 
Bermes v. Summit County

20220338-CA 18 2023 UT App 94

allowable disturbance area differently (i.e., it limits the 

disturbance area to 20,000 square feet), “both can’t exist at the 

same time.” But the Council contends otherwise. As the Council 

explained at oral argument, “it is not inconsistent to say there is a 

total disturbance area for a lot of five acres and that the total 

disturbance area is 20,000 square feet or less, and to also say that 

the disturbance area can only go so far beyond any particular 

building and that the . . . construction has to occur within that 

overall disturbance area. Both of those things can be true.” We 

agree with the Council on this point. Like the Council, we see no 

reason why a project couldn’t separately be subject to both 

limitations. Bermes has therefore failed to persuade us that the 

existence of this neighboring provision and its differently defined 

allowable disturbance area is reason to conclude that the Site 

Grading Provision is inapplicable to his proposed project.13

¶40 In short, the natural understanding of the term “site 

grading” encompasses the very kind of activity that Bermes 

intends to conduct on his land. Because of this, it was not illegal 

for the Council to apply the limit from the Site Grading Provision 

to Bermes’s application. 

B. Cumulative Nature of the Disturbance Area

¶41 As noted, the Site Grading Provision limits the 

“disturbance area” on lots that are the size of Bermes’s to “twenty 

thousand (20,000) square feet.” Snyderville Code § 10-4-

3.C.1.a(3)(A)(iii). Bermes next argues that, even if the Site Grading 

Provision is applicable to his proposed accessory building, its 

limits “would still not apply because [his] proposed [9,781-

square-foot] disturbance area is well under” the 20,000-squarefoot threshold. In Bermes’s view, the disturbance area limit 

13. We note that the record shows that Summit County considered

both the Site Grading Provision and the neighboring provision in 

other applications for construction in Bermes’s subdivision.
Bermes v. Summit County

20220338-CA 19 2023 UT App 94

should be measured on a per project basis, rather than a 

cumulative basis. We disagree for two reasons. 

¶42 The first is based on the language of the Snyderville Code 

itself. It’s true, as Bermes points out, that the Site Grading 

Provision does not explicitly state that the disturbance area 

should be measured cumulatively. But the Site Grading Provision 

also does not explicitly state that it applies on a per project basis. 

¶43 When “evaluating the plain language of a particular 

statutory provision, we interpret it in harmony with other statutes 

in the same chapter and related chapters.” Summit Water Distrib. 

Co. v. Summit County, 2005 UT 73, ¶ 17, 123 P.3d 437 (quotation 

simplified); see also State v. Campbell, 2012 UT App 75, ¶ 2, 274 P.3d 

1021 (“We also follow the cardinal rule that the general purpose, 

intent or purport of the whole act shall control, and that all the 

parts be interpreted as subsidiary and harmonious to its manifest 

object.” (quotation simplified)). And though it does not address 

this question explicitly, we do see some textual cues within the 

Site Grading Provision that suggest that the disturbance area is to 

be measured cumulatively. For example, the disturbance area 

limit is set forth in Snyderville Code section 10-4-3.C.1.a(3)(A). Of 

note, that subsection contains three different disturbance area 

limits, each of which turn on the size of the “lot[]” rather than the 

size of the particular project. See id. § 10-4-3.C.1.a(3)(A)(i)–(iii).

Moreover, the introduction to this subsection states that a site 

grading disturbance area “includ[es] all portions of the driveway 

and construction activity.” Id. § 10-4-3.C.1.a(3)(A) (emphasis 

added). The word “all” is, of course, an inclusive term. And its 

reference to the disturbance area associated with the 

“driveway”—without any limitation based on whether the 

driveway is involved in the particular “construction activity” now 

at issue—likewise suggests that it’s focused on the total 

disturbance area that has occurred on the lot cumulatively. 
Bermes v. Summit County

20220338-CA 20 2023 UT App 94

¶44 Second, if there’s ambiguity about how to interpret a 

provision, courts may look to the understood purpose of a statute 

or ordinance. Alliant Techsystems, Inc. v. Salt Lake Board of 

Equalization, 2012 UT 4, ¶ 21, 270 P.3d 441 (“Where the language 

of a statute is ambiguous, we may look beyond the statute’s text 

in order to ascertain its legislative purpose.” (quotation 

simplified)). Here, the Snyderville Code tells us what its purpose 

is. It states that “[s]tructures located on ridgelines . . . shall be 

prohibited,” though structures are permitted on lots that 

preexisted the passage of the Snyderville Code if they comply 

with “special development standards,” Snyderville Code § 10-4-

3.C.1. And the Site Grading Provision from those special 

development standards then states that “[s]ite grading shall be 

minimized.” Id. § 10-4-3.C.1.a(3)(A). These are clear indications of 

an intent to minimize development on this ridgeline. But Bermes’s 

interpretation would in theory allow a lot owner to disturb far 

more than 20,000 square feet on a lot, just so long as the 

disturbances don’t occur within the same project. This 

interpretation would facilitate excess development, not 

“minimize” it, thus enabling the very thing that this provision is 

designed to prohibit. This would be at odds with the “purpose the 

statute was meant to achieve.” Summit Water Distrib. Co., 2005 UT 

73, ¶ 17 (quotation simplified). 

¶45 For these reasons, we agree with the Council that the Site 

Grading Provision’s limit on the disturbance area is properly 

understood as applying cumulatively, rather than on a per project 

basis. Because of this, we see no illegality in the Council’s 

conclusion that the proposed project violated this provision. 

C. Substantive Review on Remand

¶46 As discussed, the Council initially denied Bermes’s request 

in a decision that applied the zoning variance criteria found in 

Snyderville Code section 10-3-6, rather than the special exception 

criteria found in Snyderville Code section 10-3-7. Because of this 
Bermes v. Summit County

20220338-CA 21 2023 UT App 94

error, the district court remanded for reconsideration, after which 

the Council issued the Amended Decision that correctly applied 

the special exception criteria. Bermes now argues that when the 

Council adopted the Amended Decision, it simply “incorporated 

its pre-remand deliberations,” and that by doing so, the Council 

failed “to conduct the substantive review” of his request as 

“required by Utah Code section 17-27a-508(1)(a)(i).” From this, 

Bermes argues that the Amended Decision was illegal. We 

disagree.

¶47 Utah Code section 17-27a-508(1)(a)(i) provides that “[a]n 

applicant who has submitted a complete land use application, 

including the payment of all application fees, is entitled to 

substantive review of the application under the land use 

regulations . . . in effect on the date that the application is 

complete.” The statute does not define the term “substantive 

review,” and the parties have pointed to no authority defining it 

either. Regardless, whatever the precise contours of that 

requirement actually are, we think the review given by the 

Council before issuing the Amended Decision was more than 

sufficient to fulfill its statutory obligation. This is so for several 

reasons.

¶48 First, its earlier deliberations. Although the conclusions of 

law in the initial decision incorrectly referred to the zoning 

variance criteria, the record shows that the Council received much 

information about the special exception criteria before issuing that 

initial decision. Of particular note, the Council received a staff 

report that identified each of the special exception criteria by 

name and then provided detailed analysis of each criterion. On 

the first criterion, for example, the report argued that Bermes’s 

proposed accessory building was detrimental to the public health, 

safety and welfare because it would “project into the horizon line” 

and require disturbance far beyond the 20,000-square-foot limit, 

which wasn’t in harmony “with the surrounding mountain and 

resort environment” and wouldn’t “protect the scenic qualities of 
Bermes v. Summit County

20220338-CA 22 2023 UT App 94

the Snyderville Basin.” On the second, the report argued that the 

proposed accessory building did not meet the intent of the 

Snyderville Code and general plan because of the same reasons 

articulated in criterion one, plus the fact that the accessory 

building wouldn’t “[p]rotect the environmentally sensitive nature 

of the land,” wouldn’t “[p]romote a community of neighborhoods 

where rural open space is interspersed with traditional smalltown 

characteristic forms as the dominant pattern of development,”

and would negatively impact “the desired community balance.”

(Quoting Snyderville Code § 10-1-1.D.) And on the fourth, the 

report argued that Bermes had no equitable claims or unique 

circumstances warranting the special exception because no 

neighbor in a similar situation had an accessory building 

anywhere near the proposed size of Bermes’s building and that 

the “uniqueness of the lot [was] something that [Bermes] was 

aware of when [he] purchased the lot and constructed [his] 

home.”14

¶49 After receiving the staff report, the Council held two 

meetings at which Bermes’s proposal was discussed. During the 

first meeting, Bermes’s counsel presented detailed arguments 

about why Bermes’s application satisfied each of the four special 

exception criteria. With regard to the first criterion, for example, 

Bermes’s counsel argued that the proposed accessory building 

was “not detrimental to the public health, safety and welfare.” 

And in making this argument, Bermes’s counsel criticized the 

staff report’s conclusion that Bermes did not satisfy this criterion,

responding with particularity to several points made in the report 

about it. In this same meeting, several members of the Council 

specifically commented on the special exception criteria by name 

and in substance. At one point, for example, two members of the 

Council asked Bermes’s counsel about arguments he’d made that 

14. Bermes has not argued that we could (much less should) 

assume that the council members didn’t read the report.
Bermes v. Summit County

20220338-CA 23 2023 UT App 94

were specific to the first special exception criterion. And at 

another point, members of the Council asked questions specific to 

the second criterion. During this same meeting, members of the 

Council also asked him questions about the history of Bermes’s 

construction on this lot, an issue that arguably related to several 

of the criteria. During that portion of the discussion, a member of 

the county attorney’s office noted that this was “why” Summit 

County “come[s] up with these specialized criteria and a special 

exception so that if someone has a piece of property that does not 

otherwise comply with any other provision of the code, [the 

county] still want[s] them to be able to build a home on it if it’s a 

lot of record,” thus directly referencing the special exception by 

name and concept. (Emphases added.)

¶50 During the second meeting, the Council again deliberated 

about whether to approve Bermes’s proposed accessory building.

At the outset of that discussion, one council member discussed the 

fourth special exception criterion, after which a second council 

member stated that she “concur[red]” with the first council 

member and that she “came to the same conclusion.”15

15. When the potential relevance of these discussions came up at 

oral argument before this court, Bermes’s counsel noted that he 

had done the “talking” about the special exception criteria during 

the second meeting before the Council and that there “was almost 

no comment from the council members about [his] argument.” 

Fair enough. But even if it’s true that Bermes’s counsel did most 

of the talking about these criteria at that meeting, the ultimate 

question is whether there’s reason to believe that the Council 

considered them. And in answering this question, we have no 

reason to assume that the council members were ignoring 

Bermes’s counsel as he spoke. Thus, because Bermes’s counsel 

was focused on the correct criteria, it’s reasonable to assume that 

the council members were considering those criteria while 

(continued...)
Bermes v. Summit County

20220338-CA 24 2023 UT App 94

¶51 Second, the original decision. As noted, the Conclusions 

of Law in the original decision incorrectly focused on the zoning 

criteria. But even so, much of the rest of the decision was correctly 

focused on the special exception criteria. For example, the 

decision began by highlighting that “[t]his matter came before the 

[Council] on a request for a Special Exception.” (Emphasis added.)

And the Findings of Fact likewise stated that Bermes was 

“requesting a Special Exception.” (Emphasis added.) Moreover, 

while the decision did not identify the special exception criteria 

by number, it did discuss the substance of each criterion, even 

employing the particular verbiage used in the special exception 

provisions from the Snyderville Code.

¶52 Third, the Council’s post-remand discussion and 

ratification. After the district court remanded to the Council for 

reconsideration under the correct criteria, the Council met to 

discuss the matter. At that meeting, the county attorney expressed 

her view that there was “no need for further deliberations, given 

that [the Council] previously analyzed this matter using the 

special exception criteria and only its written decision was flawed 

[in] that it focused on variance criteria.” When she made this

point, the council members did not disagree, nor did they express 

any confusion about any new set of questions that they were now 

being asked to decide in the first instance. As one member of the 

Council put it, their task was simply to “correct[] the written 

document based on the conversations and decision [the Council] 

made previously.” No member of the Council pushed back on this 

assertion. And Bermes’s own counsel seemed to see things 

similarly, telling the Council that if it was “inclined to reconsider

listening to him. And this assumption is, again, supported by the 

facts that (i) certain members of the Council had engaged with 

Bermes’s counsel in some discussion about the special exception 

criteria at the first meeting, and (ii) certain members of the Council 

discussed those criteria at the second meeting too. 
Bermes v. Summit County

20220338-CA 25 2023 UT App 94

some of these issues,” he would be “happy to address them,” but 

then stating that he saw no “reason to belabor these points any 

further.” (Emphases added.)

¶53 Again, the Council was legally obligated to provide a 

“substantive review” of Bermes’s application under the correct 

and applicable provision. Here, information regarding the special 

exception criteria was given to the Council before its initial 

deliberations, those criteria were discussed by Bermes’s counsel

at those deliberations, the council members engaged with 

Bermes’s counsel and with each other regarding them, the criteria 

were discussed in substance in the original decision, and, after the 

remand, the Council agreed that though its initial decision was 

mistaken in form, its actual decision was in substance focused on 

the correct criteria. Given all this, we disagree with Bermes’s 

suggestion that the Council’s adoption of the Amended Decision 

was the product of insufficient deliberation. We see no illegality 

on this front.

II. Arbitrary or Capricious 

¶54 “A court shall presume that a final land use decision of a 

land use authority or an appeal authority is valid unless the land 

use decision” is either “arbitrary and capricious” or “illegal.”

Utah Code § 17-27a-801(3)(b). Bermes argues that even if the 

Amended Decision was not illegal, it was still arbitrary and 

capricious because (A) there was not substantial evidence to 

support its conclusion that the special exception criteria were not 

satisfied and (B) the Council treated him unfairly. We disagree.16

16. As noted, we’re reviewing the district court’s ruling on this 

issue, and we “afford no deference” to the district court’s 

determination that the Council’s decision was not arbitrary or 

(continued...)
Bermes v. Summit County

20220338-CA 26 2023 UT App 94

A. Substantial Evidence

¶55 “A land use decision is arbitrary and capricious if the land 

use decision is not supported by substantial evidence in the 

record.” Utah Code § 17-27a-801(3)(c)(i). Bermes advances two 

arguments relating to the alleged lack of substantial evidence: 

(1) he claims that the Amended Decision wasn’t specific enough 

to allow for a substantial evidence review and (2) he also claims 

that there wasn’t substantial evidence to support the Council’s 

capricious. Northern Monticello All. LLC v. San Juan County, 2023 

UT App 18, ¶ 11, 526 P.3d 829 (quotation simplified).

The parties disagree about whether the Amended Decision 

was legislative or administrative in nature. In some cases, this 

distinction might matter because it would alter the standard of 

review for the arbitrary and capricious analysis. “When a 

municipality makes a land use decision as a function of its 

legislative powers, . . . such a decision is not arbitrary and 

capricious so long as the grounds for the decision are reasonably 

debatable.” Bradley v. Payson City Corp., 2003 UT 16, ¶ 10, 70 P.3d 

47 (quotation simplified). But “when a land use decision is made 

as an exercise of administrative or quasi-judicial powers,” the 

decision is not arbitrary and capricious if it is “supported by 

substantial evidence.” Id. (quotation simplified). The reasonably 

debatable standard is “more deferential” than the already “highly 

deferential” substantial evidence standard. Id. ¶¶ 1, 14; see also 

Checketts v. Providence City, 2018 UT App 48, ¶ 19, 420 P.3d 71. 

Bermes argues (and the district court agreed) that the 

Amended Decision was administrative in nature. The Council, on 

the other hand, suggests that it was legislative in nature. We need 

not resolve this dispute, however, because we conclude that the 

Amended Decision was not arbitrary or capricious even under the 

less deferential substantial evidence standard.
Bermes v. Summit County

20220338-CA 27 2023 UT App 94

conclusions that he had not satisfied the special exception 

criteria.17

1. Specificity of the Amended Decision

¶56 It’s settled in Utah that “an administrative agency must 

make findings of fact and conclusions of law that are adequately 

detailed so as to permit meaningful appellate review.” McElhaney

v. City of Moab, 2017 UT 65, ¶ 35, 423 P.3d 1284 (quotation 

simplified). And for good reason. “Without sufficiently detailed 

findings that disclose the steps by which an administrative agency 

reaches its ultimate factual conclusions, [an appellate court] 

cannot perform its duty of reviewing the order in accordance with 

established legal principles and of protecting the parties and the 

public from arbitrary and capricious administrative action.” Id.

¶ 36 (quotation simplified). In this sense, the statutory phrase 

“substantial evidence” functions as something of a “term of art” 

that “presupposes” that the administrative body will issue 

“written findings” that are sufficiently specific so as to facilitate 

appellate review. Id. ¶ 41; see also Northern Monticello All. LLC v. 

San Juan County, 2023 UT App 18, ¶ 24, 526 P.3d 829 (holding that 

17. Bermes makes an additional argument that serves as 

something of a springboard for his lack of specificity argument. In 

what’s essentially a repackaged version of the argument 

addressed above, Bermes suggests that the Amended Decision 

was arbitrary and capricious because it was “not the product of 

any kind of deliberative process” in which the Council deliberated 

about the special exception criteria after the district court’s 

remand. 

We reject this argument for the same reason that we 

rejected its progenitor. As indicated above, we think it clear that 

the Council did indeed deliberate about whether Bermes’s 

application satisfied the special exception criteria. Given this, we 

see nothing arbitrary or capricious on this front.
Bermes v. Summit County

20220338-CA 28 2023 UT App 94

because “the land use authority made no written findings . . . this 

deficiency prevented appropriate appellate review”).

¶57 In Bermes’s view, the Amended Decision did not 

adequately disclose the steps that led the Council to reject his 

application. And in making this argument, Bermes focuses on 

ways he thinks the Amended Decision could or should have been 

clearer. But as our supreme court explained when rejecting a 

similar argument in a past case, “recognizing that the Board could 

have crafted an order that better explained the Board’s reasoning 

does not translate into a basis for concluding that the Board lacked 

substantial evidence for its decision.” J.P. Furlong Co. v. Board of 

Oil, Gas, & Mining, 2018 UT 22, ¶ 27, 424 P.3d 858. Instead, the 

relevant question is whether the Council issued “sufficiently 

detailed findings” that would give the applicant “notice of what 

it would need to challenge on appeal.” Id. ¶ 30 (quotation 

simplified). So long as the explanation given by the administrative 

body in question is sufficiently detailed to provide the basis for 

review, the decision will not be overturned for lack of 

specificity—even if the administrative body “did not walk 

through” all the arguments made by the applicant “item by item” 

or “articulate” its precise conclusions “in each individual 

instance.” Id. ¶ 27. In other words, “to survive the scrutiny of a 

reviewing court, a land use authority’s legal analysis need not be 

a shining example of lucidity.” Checketts v. Providence City, 2018 

UT App 48, ¶ 17, 420 P.3d 71.

¶58 Here, after the district court remanded for reconsideration, 

the Council issued the Amended Decision. At the close of the 

Amended Decision, the Council included a Conclusions of Law 

section in which it stated that Bermes had not satisfied three of the 

special exception criteria. Bermes focuses on the fact that those 

Conclusions of Law were not set forth in much detail. But they 

didn’t need to be, because the Council had also explained its 

rationale under the Findings of Fact heading. In that section, the 

Council made 36 separately numbered findings. These included 
Bermes v. Summit County

20220338-CA 29 2023 UT App 94

findings about the history of the development on Bermes’s lot and 

the history of this application, as well as findings about the 

Snyderville Code provisions that govern the proposed 

development. Of note, these also included findings about why the 

Council believed that Bermes had not satisfied each of the three 

criteria at issue in this appeal:

• First Criterion (public health, safety and welfare): With 

respect to the public welfare component of this criterion, 

the Council found that the proposed accessory building 

did “not take into consideration the harmony with the 

surrounding mountain and resort environment and does 

not protect the scenic qualities of the Snyderville Basin.”

The Council further found that Bermes’s proposed 

building did not “[p]romote a community of 

neighborhoods, where rural open space is interspersed 

with traditional small town characteristic forms as the 

dominant patterns of development,” nor did it “minimize 

its impact on the desired community balance.” 

• Second Criterion (intent of the development code and 

general plan): The Council found that Bermes was 

“proposing to further develop in an area subject to critical

land limitations and design requirements identified in both 

the General Plan and the [Synderville] Code.” The Council 

found that he had “previously received a variance to 

increase” the “disturbance by 28,805 sq. ft.” when he built 

his home, and it found that now “[g]ranting a Special 

Exception of 20,000 additional sq. ft. of disturbance would 

not be consistent with the policies and goals of the 

Snyderville Basin General Plan nor would it be consistent 

with the intent” of the Snyderville Code. On this front, the 

Council thus found “that the request for additional 

disturbance area” was “not valid” since the owner had

“already capitalized on and over the maximum 

disturbance allowed.”
Bermes v. Summit County

20220338-CA 30 2023 UT App 94

• Fourth Criterion (equitable claims or unique 

circumstances): The Council specifically found that 

Bermes’s request was “not a unique circumstance.” In the 

Council’s view, this was so because no similarly situated 

neighbor had an accessory building the size of Bermes’s 

proposed building and the “uniqueness of the lot [was]

something that [Bermes] was aware of when [he] 

purchased the lot and constructed the home.”

¶59 Given the Council’s findings, we disagree with Bermes’s 

contention that we cannot conduct a substantial evidence review.

To the extent that Bermes’s argument turns on lack of specificity, 

we accordingly reject it.

2. Lack of Evidence

¶60 This leads to the real thrust of Bermes’s substantial 

evidence claim, which is that there was not substantial evidence 

to support the Council’s conclusions that he had not satisfied the 

various special exception criteria.

¶61 Substantial evidence “must be more than a mere scintilla 

of evidence, though something less than the weight of the 

evidence.” Kilgore Cos. v. Utah County Board of Adjustment, 2019 UT 

App 20, ¶ 24, 438 P.3d 1025 (quotation simplified). Substantial 

evidence is “that quantum and quality of relevant evidence that is 

adequate to convince a reasonable mind to support a conclusion.”

Outfront Media, 2017 UT 74, ¶ 12 (quotation simplified). When 

conducting a substantial evidence review, this court does “not 

weigh the evidence anew or substitute [its] judgment for that of 

the municipality.” Farley v. Utah County, 2019 UT App 45, ¶ 22, 

440 P.3d 856 (quotation simplified). Rather, we “examine the 

whole record to determine whether a reasonable mind might 

accept as adequate the evidence supporting the decision.” J.P. 

Furlong Co., 2018 UT 22, ¶ 23 (quotation simplified); see also Farley, 

2019 UT App 45, ¶ 22 (noting that when conducting a substantial 
Bermes v. Summit County

20220338-CA 31 2023 UT App 94

evidence review, “we consider all of the evidence in the record” 

(quotation simplified)). In this sense, the substantial evidence 

standard is “highly deferential.” Checketts, 2018 UT App 48, ¶ 19.

¶62 Again, the Snyderville Code stated that the Council “shall 

not approve a special exception unless the applicant demonstrates 

that: 1. The special exception is not detrimental to the public 

health, safety and welfare; 2. The intent of the development code 

and general plan will be met; . . . 3. The applicant does not 

reasonably qualify for any other equitable processes provided 

through the provisions of this title; and . . . 4. There are equitable 

claims or unique circumstances warranting the special 

exception.” Snyderville Code § 10-3-7.B (emphases added). This 

provision notably uses the conjunctive “and” to link the four 

criteria, and this word “is most often considered to create a 

conjunctive condition.” Paar v. Stubbs, 2005 UT App 310, ¶ 8, 117 

P.3d 1079. The district court read this provision conjunctively, 

concluding that “if any one of those conclusions is supported by 

substantial evidence,” this would be enough to “defeat the 

application for a special exception.” Bermes notably does not 

challenge that conclusion on appeal. Because of this, we agree that 

if substantial evidence supports any of the Council’s conclusions, 

Bermes’s application for a special exception must fail.

¶63 The Council concluded that Bermes had not established the 

first, second, and fourth criteria. Here, because we conclude that 

there was substantial evidence to support the Council’s 

conclusion that Bermes failed to establish the second criterion, this 

is enough to affirm the decision.

¶64 As noted, the second criterion required Bermes to 

demonstrate that a special exception for his proposed accessory 

building would meet “[t]he intent of the [Snyderville Code] and 

general plan.” Id. § 10-3-7.B.2. And as set forth in the Snyderville 

Code, the general plan “was developed to ensure that the resort 

and mountain character of the basin is to be embraced and 
Bermes v. Summit County

20220338-CA 32 2023 UT App 94

protected, while suburban development patterns, which erode 

the unique character of the basin, [are] discouraged and, to the 

extent possible, prohibited.” Id. § 10-1-1.A (emphasis added). Thus, 

the goal of the general plan is unmistakably tilted toward limiting 

development in this protected area. 

¶65 But there was nothing limited about Bermes’s proposal, 

and the Council had an obvious basis for recognizing this. Again, 

by his own account, Bermes sought permission to build a 7,981-

square-foot accessory building next to his already-built 15,000-

square-foot home. And in the staff report that was provided to the 

Council—which, again, is properly considered as part of the 

“whole record” nature of this review, J.P. Furlong Co., 2018 UT 22, 

¶ 23 (quotation simplified)—the county planner likewise 

concluded that Bermes’s proposed building did not “meet” the 

Snyderville Code’s “goal” of “[p]rotect[ing] the environmentally 

sensitive nature of the land” and limiting excess development in 

this ridgeline area.

¶66 While Bermes obviously disagrees with that conclusion, 

we again note that in this deferential review, we “do not weigh 

the evidence anew or substitute our judgment” for that of the 

municipality. Farley, 2019 UT App 45, ¶ 22 (quotation simplified). 

The general plan was focused on limiting development, so the 

Council therefore had a sufficient basis for concluding that this 

particular goal would not be served by adding a large secondary 

building to a lot that already has an even larger primary residence 

on it. Given that Bermes was required to prevail on all four of the 

special exception criteria, this is a sufficient basis to reject his 

claim.18

18. In any event, we note that we also see substantial evidence to 

support the Council’s conclusion that the fourth criterion was not 

(continued...)
Bermes v. Summit County

20220338-CA 33 2023 UT App 94

B. Unfairness 

¶67 Finally, Bermes claims that the Amended Decision was 

arbitrary and capricious because of (1) discrepancies between 

how his neighbors were treated in past cases and how he was 

treated here and (2) discrepancies between how he was treated 

when he applied for a variance in 2015 and how he was treated 

when applying for this special exception in 2020. We disagree.

¶68 First, Bermes argues that he is being treated differently 

than his neighbors have been treated in the past. Of note, he 

claims that the Council “did not apply its cumulative disturbance 

theory to other lots in the neighborhood.” But even accepting this 

assertion as true, Bermes provides no legal support for his 

assertion that the Council’s failure to enforce this ordinance in 

past instances means that it cannot enforce it now. To the contrary, 

it’s settled that a municipality’s “failure to enforce zoning for a 

met. That criterion required Bermes to show there were “equitable

claims or unique circumstances warranting the special 

exception.” Snyderville Code § 10-3-7.B.4. But evidence before the 

Council showed that there were only three other accessory 

buildings (out of 43 total lots in the area) that projected into the 

horizon line in the way that Bermes’s proposed accessory 

building would. In addition, evidence showed that Bermes’s 

proposed building was nearly five times the size of the largest of 

these three accessory buildings. There was also no evidence that 

there were unique “geographic or geologic” features about 

Bermes’s property that distinguished it from other properties 

within the ridgeline area. And the Council had evidence that 

Bermes was aware of his lot’s topography when he purchased the 

lot and applied for a variance to build his home, which meant that 

he was likewise on notice that any proposed construction would 

be subject to heightened zoning restrictions. All of this together 

supported the Council’s view that Bermes had not satisfied the

fourth criterion.
Bermes v. Summit County

20220338-CA 34 2023 UT App 94

time does not forfeit the power to enforce.” South Weber City v. 

Cobblestone Resort LLC, 2022 UT App 63, ¶ 29, 511 P.3d 1207 

(quotation simplified); see also Salt Lake County v. Kartchner, 552 

P.2d 136, 138 (Utah 1976) (“Ordinarily a municipality is not 

precluded from enforcing its zoning regulations[] when its 

officers have remained inactive in the face of such violations.”). 

For this reason alone, Bermes has not persuaded us that there was 

anything arbitrary or capricious about this decision.

¶69 In any event, when Bermes made this same argument 

below, the Council heard evidence showing that there were 

differences between the neighboring lots and the construction 

projects on those lots. This included evidence that Bermes’s 

proposed accessory building would be multiple times larger than 

any other accessory building on the horizon line. For this reason 

too, we see no basis for concluding that the Council’s decision not 

to deny the requests in past cases rendered its decision to deny 

the request in this case arbitrary or capricious. 

¶70 Second, Bermes claims that there is an unfair discrepancy 

between Summit County’s decision to approve his request for a 

variance when building his home in 2015 and its decision to deny

his request for a special exception in 2020. But Bermes again

provides no authority for his assertion that this difference legally 

matters, and in our view, it fails under the same authority that 

we’ve just cited. Simply put, when Summit County approved his 

request for a variance in 2015, that didn’t mean that it was then

obligated to approve any future requests made by Bermes for 

additional variances or exceptions on his lot.19

19. The potential negative consequences of accepting Bermes’s 

proposed rule seem obvious. If Bermes’s rule were followed, this 

would in theory disincentivize municipalities from ever granting 

a request for a variance or a special exception, lest the 

(continued...)
Bermes v. Summit County

20220338-CA 35 2023 UT App 94

¶71 In any event, putting the lack-of-authority problem aside, 

there are several differences between the 2015 and 2020 

applications. One difference is a procedural one. In 2015, Bermes’s 

request for a variance ran through the Board of Adjustment; in 

2020, his special exception request ran through the Council.

Another has to do with the nature of the requests. In 2015, Bermes 

applied for a variance, but in 2020, he applied for a special 

exception. While we take the point that there is substantial 

overlap between the two standards, there is at least some 

difference, and this too might provide some basis for the differing

outcomes. 

¶72 But more significantly, there was a pronounced 

substantive difference between the two requests: Bermes’s 

request in 2015 was for leave to build a home, while his request in 

2020 was for leave to build an accessory building. A county 

attorney highlighted this at the first meeting, stating that the 

Snyderville Code’s special exception provisions exist, in part, “so 

that if someone has a piece of property that does not otherwise 

comply with any other provision in” the Snyderville Code, they 

are still “able to build a home.” (Emphasis added.) When Bermes 

countered that “there’s no distinction in the [special exception] 

criteria based on the nature of the structure” that is being built,

the county attorney responded that “the analysis of the hardship 

changes” depending on the type of structure at issue. We agree 

with the county attorney’s sentiment. After all, a lot owner who is 

prevented from constructing a home on the owner’s property 

would face an entirely different set of problems than a lot owner 

who has a home but is being prevented from building a separate 

building for the owner’s extra vehicles (or, in the case of a barn, 

the owner’s animals).

municipality effectively lose zoning or enforcement power over 

that lot or other neighboring lots moving forward.
Bermes v. Summit County

20220338-CA 36 2023 UT App 94

¶73 Finally, Bermes’s own history gave the Council at least

some additional reason to view his latest request with disfavor. 

The Board of Adjustment in 2015 approved Bermes’s request to 

disturb 43,805 square feet when building his home. But in the 

process of building that home, Bermes disturbed an area that was 

approximately 100,000 square feet beyond the 43,805 that was 

already approved, and in doing so, “most of the native vegetation

was lost.” This led to an enforcement action. In light of this 

history, the Council had at least some reason to be skeptical that 

Bermes would limit himself to the contours of his own proposal if 

it now approved his request for a special exception to build an 

accessory building. This, too, gave the Council some reason to 

treat Bermes differently in 2020 than the Board of Adjustment had 

treated him in 2015.

¶74 In short, Bermes has not persuaded us that the Amended 

Decision was somehow arbitrary or capricious because of any 

discrepancies between its decision here and the past decisions 

involving Bermes’s neighbors or even himself. This claim 

accordingly fails.

CONCLUSION

¶75 We see no illegality in the Council’s decision to deny 

Bermes’s request for a special exception. First, we conclude that 

the Snyderville Code’s Site Grading Provision applies to Bermes’s 

special exception application because construction of his 

accessory building requires site grading. Second, we conclude 

that the provision’s disturbance area limit applies cumulatively 

and that because Bermes had previously exceeded this limit, the 

Council properly concluded that Bermes needed a special 

exception to disturb more area. And third, we conclude that the 

Council’s Amended Decision was not illegal because it provided 

the substantive review required under Utah law. 
Bermes v. Summit County

20220338-CA 37 2023 UT App 94

¶76 We also conclude that the denial was not arbitrary or 

capricious. The Council’s Amended Decision was specific enough 

to facilitate appellate review, and its determination that Bermes 

had not satisfied the second criterion was supported by 

substantial evidence. Finally, Bermes has not persuaded that there 

was any actionable unfairness based on how Bermes was treated 

in these proceedings. 

¶77 For these reasons, we affirm the district court’s ruling.