IN THE UTAH COURT OF APPEALS

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Roger van Frank,

Plaintiff and Appellant,

v.

Salt Lake City Corporation, a municipal

corporation,

Defendant and Appellee. )

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Case No. 20100861

‐ CA

F I L E D

(July 12, 2012)

2012 UT App 188

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Third District, Salt Lake Department, 080919752

The Honorable Kate A. Toomey

Attorneys: Jeffrey L. Silvestrini and Justin D. Hatch, Salt Lake City, for Appellant

J. Wesley Robinson, Salt Lake City, for Appellee

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Before Judges McHugh, Thorne, and Christiansen.

THORNE, Judge:

¶1 Plaintiff Roger van Frank appeals from the district court’s decisions granting Salt

Lake City Corporation’s (the City) motion for summary judgment and denying van

Frank’s summary judgment motion. Van Frank also appeals from the court’s decision

denying his motion for a new trial or to reconsider. We affirm the district court’s

dismissal of van Frank’s claims.1. Van Frank provides only the surname of this client and limited information about the

Thomas matter.

2. The City clarified in its appellate brief that the building permit was denied, at least in

part, because the Division required a structural engineer’s opinion regarding certain of

van Frank’s calculations.

3. Van Frank filed an amended complaint in 2009, listing only the City as a defendant.

20100861

‐ CA 2 BACKGROUND

¶2 In 2006, van Frank, a licensed architect, entered into a contract with Mr. Thomas

to provide architectural services. 1 Presumably van Frank prepared architectural plans,

which Thomas then included in his application for a building permit submitted to the

Salt Lake City Building Services and Licensing Division (the Division). The Division

denied Thomas a building permit, allegedly based upon the lack of a certified

engineer’s calculations. In 2007, van Frank entered into a contract with Mr. William

Buchanan to provide architectural services to design a garage with a loft. Van Frank

prepared the architectural plans, which Buchanan included in his application for a

building permit submitted to the Division. The architectural plans included structural

support calculations van Frank had performed for the loft’s floor system. The Division

conditionally denied Buchanan a building permit based upon van Frank’s calculations. 2

Buchanan obtained the required endorsement of a structural engineer certifying that the

floor system van Frank designed was safe. Thereafter, the Division issued a building

permit to Buchanan.

¶3 In 2008, van Frank filed a complaint in the Third District Court against the City

and Orion Goff, the Division’s director, 3 seeking redress for harm done to him when the

Division allegedly imposed unauthorized restrictions on the scope of his architect’s

license. Van Frank complained that such actions by the Division deprived him of a

property right without due process. Van Frank also sought an injunction prohibiting

the Division from making further determinations limiting the scope of an architect’s

work.

¶4 In 2010, the City filed a motion for summary judgment based on the grounds that

van Frank failed to state a claim upon which relief may be granted, lacked standing to

sue the City, had failed to exhaust his administrative remedies, and that no due process

constitutional violation had occurred. Van Frank filed a reply brief and a cross

‐ motion

for summary judgment, seeking damages and a permanent injunction against the City20100861

‐ CA 3 for its alleged violation of his substantive due process rights. The district court held a

hearing on the parties’ motions for summary judgment. After considering the parties’

arguments and supplemental authorities, the district court in its September 16, 2010

memorandum decision concluded that the City’s rejection of proposed plans in two

instances does not demonstrate a policy of limiting van Frank’s practice of architecture,

incidental to which he may engage in engineering, and granted the City’s summary

judgment motion and denied van Frank’s motion.

¶5 On September 29, 2010, van Frank filed a motion for new trial or to reconsider.

The district court held oral arguments on the motion and subsequently denied the

motion, concluding that van Frank’s “Motion for New Trial or to Reconsider [was] not

well

‐ taken, either procedurally or substantively.” Van Frank now appeals from both

the district court’s summary judgment and new trial rulings.

ISSUES AND STANDARDS OF REVIEW

¶6 Van Frank first argues that the district court erred by granting the City’s motion

for summary judgment and denying van Frank’s summary judgment motion. “An

appellate court reviews a trial court’s ‘legal conclusions and ultimate grant or denial of

summary judgment’ for correctness, and views ‘the facts and all reasonable inferences

drawn therefrom in the light most favorable to the nonmoving party.’” Orvis v. Johnson

, 2008 UT 2, ¶ 6, 177 P.3d 600 (citations omitted).

¶7 Van Frank also argues that the court erred by denying his motion for a new trial

or to reconsider. “‘[T]he trial court’s decision to deny [a]

. . . motion for a new trial is

reviewed under an abuse of discretion standard.’” State v. Millett

, 2012 UT App 31,

¶ 13, 271 P.3d 178 (alterations in original) (citation omitted). “However, ‘we review the

legal standards applied by the [trial] court in denying [a] motion [for a new trial] for

correctness.’” Id

. (alterations in original) (citation omitted).

ANALYSIS

¶8 Van Frank generally argues that each of the several district court rulings that he

appeals from should be reversed. The City, however, argues that van Frank failed to

exhaust his administrative remedies under Salt Lake City Code 18.20.140 and that,

therefore, the district court was ultimately correct in dismissing van Frank’s claims. We

agree with the City.20100861

‐ CA 4 ¶9 “Under Utah law, there is a specific exhaustion requirement with regard to land

use decisions: ‘No Person may challenge in district court a municipality’s land use

decision

. . . until that person has exhausted the person’s administrative remedies

. . . .’”

Salt Lake City Mission v. Salt Lake City

, 2008 UT 31, ¶ 6, 184 P.3d 599 (omissions in

original) (quoting Utah Code Ann. § 10

‐ 9a

‐ 801(1) (Supp. 2007)). The denial of a

building permit constitutes a written decision by a land use authority. Cf. Fox v. Park

City

, 2008 UT 85, ¶ 17, 200 P.3d 182 (“A building permit constitutes a written decision

by a land use authority.” (internal quotation marks omitted) (citing Utah Code Ann. §

10

‐ 9a

‐ 103(15) (defining “land use authority” as “a person, board, commission, agency,

or other body designated by the local legislative body to act upon a land use

application”))). “Where the legislature has imposed a specific exhaustion requirement

. . . we will enforce it strictly.” Salt Lake City Mission

, 2008 UT 31, ¶ 6 (alterations in

original) (internal quotation marks omitted). “Strict enforcement of this provision

dictates that if a party fails to exhaust [its] administrative remedies prior to filing suit,

the suit must be dismissed.” Id. (alteration in original) (internal quotation marks

omitted).

¶10 The process for obtaining a building permit includes submitting an application

“accompanied by all required plans, diagrams and other data.” See Salt Lake City,

Utah, City Code § 18.20.040. The Salt Lake City Code informs applicants that “[t]he

building official may require the plans and other data to be prepared and designed by

an engineer or architect licensed by the state to practice as such.” See id. The Salt Lake

City Code also provides that if the building official denies or revokes a permit, “[ a ] ny

person adversely affected by the action of the building official in accordance with the

preceding sections may appeal to the board of appeals and examiners for a hearing upon such

revocation or denial.” Id. § 18.20.140 (emphasis added).

¶11 Here, two of van Frank’s clients submitted building permit applications

accompanied by architectural plans van Frank prepared. The Division initially denied

both building permit requests and allegedly required other data to be prepared by an

engineer before granting the permits. Van Frank asserts on appeal that he was

adversely affected by the Division’s action. He argues that when the Division denied

the building permits based on van Frank’s calculations it imposed an arbitrary

restriction of van Frank’s architect’s license and denied him a property interest in the

license because Utah law expressly permits a “licensed architect [to] perform such

professional engineering work as is incidental to the practice of architecture.” See Utah

Code Ann. § 58

‐ 3a

‐ 102(6)(b) (Supp. 2011) (“‘Practice of architecture’ does not include

the practice of professional engineering as defined in Section 58

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‐ 102, but a licensed

architect may perform such professional engineering work as is incidental to the20100861

‐ CA 5 practice of architecture.”). Specifically, van Frank argues that the Division’s actions

requiring his clients to obtain an engineer’s approval of van Frank’s calculations denied

him the right to engage in the incidental practice of engineering, limited the scope of his

architecture license, and damaged his reputation with his clients. As provided in Salt

Lake City Code section 18.20.140, van Frank had the right to “appeal to the board of

appeals and examiners for a hearing” upon the denial of the building permit, which

denial by the building official adversely affected van Frank. See Salt Lake City, Utah,

City Code § 18.20.140 (“Any person adversely affected by the action of the building

official in accordance with the preceding sections may appeal to the board of appeals

and examiners for a hearing upon such revocation or denial.”). Van Frank did not,

however, appeal the Division’s decision in either the Thomas or Buchanan matters. By

failing to appeal either of the land use decisions van Frank relies upon to assert that the

Division restricted his architect’s license and denied him a property right in his license,

van Frank failed to exhaust his administrative remedies.

¶12 Van Frank argues that the land use case law, discussed above, should not be

applied in this matter because it is not relevant to his property interest argument. Van

Frank asserts that such case law is inapplicable here because he is not claiming that he is

entitled to have a building permit approved. Rather, he is claiming that the Division’s

policy of processing permit applications arbitrarily restricts his architect’s license,

thereby infringing his property interest in the license and violating his due process

rights. This assertion is without merit. The right to appeal to the board of appeals for a

hearing based on a building permit denial includes an array of grievances from “[a]ny

person adversely affected” by the denial “in accordance with the preceding sections.”

See id. The preceding section 18.20.040 provides that the Division “may require the

plans or other data to be prepared and designed by an engineer.” See id. § 18.20.040.

Thus, the section is relevant to van Frank’s argument about the Division’s policy of

processing building permit applications and issuing building permits. The issuance or

denial of a building permit is a land use decision. Cf. Fox

, 2008 UT 85, ¶ 17. As such,

land use case law is relevant to this matter.

¶13 Van Frank does not claim that his failure to exhaust administrative remedies in

this case falls under an exception to the exhaustion requirement and should be excused.

Consequently, we hold that van Frank’s failure to exhaust his administrative remedies

prevents him from seeking relief from the courts at this time. As such, we do not reach

the merits of van Frank’s arguments and affirm the district court’s decision to dismiss

van Frank’s claims.20100861

‐ CA 6 CONCLUSION

¶14 Van Frank’s appeal is based on the Division’s decision, in two instances, to deny

van Frank’s clients’ building permit applications, allegedly based on the Division’s

policy of processing permit applications in a manner that arbitrarily restricted van

Frank’s right as a licensed architect to perform professional engineering work incidental

to the practice of architecture. By not appealing the Division’s decisions to deny the

building permits, van Frank failed to exhaust his administrative remedies. Accordingly,

we do not reach the merits of van Frank’s arguments. Instead, we affirm the district

court’s decision to dismiss van Frank’s claims.

¶15 Affirmed.

____________________________________ William A. Thorne Jr., Judge

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¶16 WE CONCUR:

____________________________________ Carolyn B. McHugh,

Presiding Judge

____________________________________ Michele M. Christiansen, Judge