This opinion is subject to revision before final

publication in the Pacific Reporter

2017 UT 45

IN THE

SUPREME COURT OF THE STATE OF UTAH

ALPINE HOMES, INC.,1

Appellees,

v.

CITY OF WEST JORDAN,

Appellant.

No. 20140010

Filed August 10, 2017

On Appeal of Interlocutory Order

Third District, West Jordan

The Honorable Barry G. Lawrence

No. 20140010

Attorneys:

Bruce R. Baird, P. Matthew Muir,

Salt Lake City, for appellees

JeffreyRobinson, Robert Thorup, Stuart E. Williams,

Paul D. Dodd, West Jordan City, for appellant

JUSTICE DURHAM authored the opinion of the Court in which

CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,

JUSTICE HIMONAS, and JUDGE CONNORS joined.

Having recused himself, JUSTICE PEARCE does not participate herein;

DISTRICT COURT JUDGE DAVID M. CONNORS sat.

JUSTICE DURHAM, opinion of the Court:

INTRODUCTION

1 BUILDING DYNAMICS, INC., D.R. HORTON, INC., HAMLET HOMES CORP., HOLMES 

HOMES, INC., HOME CENTER CONSTRUCTION CO., IVORY HOMES, LTD., LEON 

PETERSON DEVELOPMENT CO., LIBERTY HOMES, INC., MCARTHUR HOMES, INC.,

RELIANCE HOMES, INC., RICHMOND AMERICAN HOMES OF UTAH, INC., and WESTVIEW 

HOMES, LLC are also parties to this appeal.
ALPINE HOMES, INC. v. CITY OF WEST JORDAN

Opinion of the Court

2

¶1 In this case, several property developers allege that the City 

of West Jordan violated statutory provisions that regulate how a 

municipality may spend the impact fees collected from developers. 

They claim that the city violated statutes requiring it to spend the 

fees on specified categories of expenditures within six years. The 

developers’ first claim for relief in the operative complaint is for a 

declaratory judgment. The district court dismissed only the last 

portion of that claim, which sought a declaratory judgment that 

West Jordan must refund all or part of the impact fees to them. 

Neither party addresses this claim on appeal, so we make no ruling 

as to the declaratory judgment action. Nor does either party argue 

against the district court’s dismissal of the developers’ sixth claim, 

the request for attorney fees as a separate claim for relief. The 

developers’ second through fifth claims for relief seek a refund of the 

allegedly misspent or unspent impact fees either because of an 

unconstitutional taking or as a claim in equity.

¶2 Our threshold concern is whether the developers have 

standing to bring their claims. Standing is a question of subject 

matter jurisdiction that “raise[s] fundamental questions regarding a 

court’s basic authority over the dispute.” Brown v. Div. of Water 

Rights of Dep’t of Nat. Res., 2010 UT 14, ¶ 13, 228 P.3d 747. This issue 

can be raised sua sponte by the court. See State v. Tuttle, 780 P.2d 1203, 

1207 (Utah 1989). “[T]he issue of subject matter jurisdiction is a 

threshold issue, which can be raised at any time and must be 

addressed before [turning to] the merits of other claims.” Am. W.

Bank Members, L.C. v. State, 2014 UT 49, ¶ 10, 342 P.3d 224 (alterations 

in original) (citation omitted). Only if the developers have standing 

do we turn to whether any of their claims survive a motion to 

dismiss based on the merits. 

¶3 The developers have standing to challenge the 

constitutionality of the impact fees they were assessed. But the time 

to challenge the relationship between the government’s demand for 

property and the anticipated social costs of a proposed land use is at 

the time the impact fees are exacted and is limited by statute to “one 

year after the day on which the person or entity pays the impact fee.” 

UTAH CODE § 11-36a-702(1)(c). The developers’ argument that their 

claims against West Jordan for either allegedly failing to spend 

impact fees within six years or spending the fees on impermissible 

expenditures were not ripe until the six-year period elapsed is 

inadequate to support a constitutional takings claim. The manner in 

which a city spends impact fees does not affect the constitutionality 

of the initial demand for fees. See Koontz v. St. Johns River Water 

Mgmt Dist., 133 S. Ct. 2586 (2013). We hold that the developers have 

failed to state a takings claim for which relief can be granted.
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Opinion of the Court

3

¶4 To the extent that the developers are seeking a remedy of a 

refund of fees in equity for the asserted injury of illegally misspent 

or unspent fees, they do not have standing. The city was authorized 

by the Impact Fees Act to assess impact fees to offset the expected 

costs of development in certain areas. See UTAH CODE §§ 11-36a-101 

to -705. There is no injury to the developers by the authorized 

assessment of impact fees that survive a takings challenge. We hold 

that where the developers cannot establish an unconstitutional 

demand for authorized impact fees at the time they were exacted, 

they do not have standing to bring claims against West Jordan. As a 

result, the courts do not have subject matter jurisdiction to hear a 

claim in equity about whether the fees were misspent or unspent in 

this case. 

¶5 Because the developers have failed to state a takings claim 

for which relief can be granted, and because they do not have 

standing to bring a claim in equity, we reverse the district court’s 

denial of the motion to dismiss. 

BACKGROUND

¶6 West Jordan, like many municipalities, requires developers 

to pay impact fees before the city approves a development project. 

These impact fees are designed to defray the anticipated increase in 

city expenditures caused by the proposed development. The impact 

fees collected by West Jordan include fees associated with the 

increased need for park services, roads, police protection, water 

services, storm water infrastructure, and sewer services. The 

legislature has enacted the Impact Fees Act, which regulates the 

manner in which cities and other political subdivisions may asses 

and spend impact fees. UTAH CODE §§ 11-36a-101 to -705.

¶7 In 2012, thirteen developers that had paid impact fees to 

West Jordan between 2003 and 2006 filed this action. The operative 

complaint claimed that the developers were entitled to a refund of 

all or some of these fees under two broad theories. The developers 

claimed that West Jordan violated the Impact Fees Act by failing to 

spend or encumber all of the impact fees within six years, see id. § 11-

36a-602(2)(a), and by spending portions of the impact fees on 

impermissible uses, see id. § 11-36a-602(1).2 The developers argued 

2 In determining whether a lawsuit survives a motion to dismiss, 

“we assume that the factual allegations in the complaint are true and 

we draw all reasonable inferences in the light most favorable to the 

plaintiff.” Berneau v. Martino, 2009 UT 87, ¶ 3, 223 P.3d 1128 (citation 

omitted).
ALPINE HOMES, INC. v. CITY OF WEST JORDAN

Opinion of the Court

4

that these violations constituted “a taking of private property for 

public use without just compensation in violation of Article 1 Section 

22 of the Utah Constitution and the Fifth and Fourteenth 

Amendments to the U.S. Constitution.” The developers also asserted 

an “equitable” right to reimbursement because West Jordan had 

failed to comply with two provisions of the Impact Fees Act.

¶8 West Jordan filed a motion to dismiss these claims. It argued 

that any failure to spend the impact fees in the manner prescribed by 

the Act was not an unconstitutional taking of the developer’s private 

property. West Jordan also argued that the Impact Fees Act did not 

give the developers a private refund remedy for any failure to 

comply with provisions regulating its use of the impact fees, and that 

the developers had no equitable right to a refund.

¶9 The district court denied West Jordan’s motion to dismiss 

the developers’ constitutional and equitable claims. This court 

subsequently granted West Jordan’s petition to file an interlocutory 

appeal from the district court’s order denying dismissal of these 

claims. After hearing initial oral arguments on this case in October 

2015, we remanded to the district court for the limited purpose of 

determining if any of the developers owned any of the property at 

issue in this action. The district court found that they had no 

remaining ownership interest in the properties in question. We then 

requested supplemental briefing on the question of the developers’

standing to bring this claim, and provided each party the 

opportunity to present their cases at oral arguments in November 

2016.

STANDARD OF REVIEW

¶10 Our standard of review for standing is “generally . . .

considered a ‘mixed question’ because it involves the application of a 

legal standard to a particularized set of facts.” Utah Chapter of the 

Sierra Club v. Utah Air Quality Bd., 2006 UT 74, ¶ 13, 148 P.3d 960. But 

“the question of whether a given individual or association has 

standing to request a particular relief is primarily a question of law.” 

Kearns-Tribune Corp. v. Wilkinson, 946 P.2d 372, 373 (Utah 1997). We 

review the “factual determinations made by a trial court with 

deference.” Id. at 373–74. However, we afford “minimal discretion to 

the trial court” on a “determination[] of whether a given set of facts 

fits the legal requirements for standing.” Id. at 374.

¶11 We review the district court’s decision to dismiss de novo. 

See Turner v. Staker & Parson Cos., 2012 UT 30, ¶ 7, 284 P.3d 600 (“A 

ruling on a motion to dismiss presents a legal question that we 
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Opinion of the Court

5

review for correctness, affording no deference to the district court’s 

decision.”).

ANALYSIS

¶12 The standing of the developers to bring the claims raised in 

this case is a threshold question. We address separately the standing 

for the takings claims and the claims for equitable relief. As to the 

takings claims, we conclude that the developers do have 

constitutional and statutory standing to bring claims for a taking, 

and therefore we assess this claim on its merits. We ultimately 

conclude that the takings claims were not filed timely and are no 

longer available as a remedy. We thus reverse the ruling of the 

district court and direct dismissal of the takings claims.

¶13 Regarding the claims for relief based in equity, we conclude 

that there is no statutorily granted standing, so the developers must 

establish standing according to Utah case law. Because a refund of 

the impact fees the developers incurred will not redress the parties 

that would actually be injured by the city’s alleged misspent or 

unspent impact fees, the developers fail to establish standing for 

these claims. We therefore will not address this issue on the merits.

Again, we reverse the district court and direct dismissal of the claims 

in equity.

I. THE TAKINGS CLAIMS

¶14 The developers had a statutorily granted “standing to file a 

declaratory judgment action challenging the validity of an impact 

fee.” UTAH CODE § 11-36a-701(1). However, this right is “[s]ubject to 

the time limitations described in Section 11-36a-702 and procedures 

set forth in Section 11-36a-703.” Id. § 11-36a-701(3)(a). Section 11-36a702(1)(c) limits actions brought challenging the validity of an impact 

fee to “one year after the day on which the person or entity pays the 

impact fee.” Had the developers brought a challenge to the impact 

fee within this time frame, they would be able to seek “a refund of 

the difference between what the [developers] paid as an impact fee 

and the amount the impact fee should have been if it had been 

correctly calculated.” Id. § 11-36a-701(3)(c). The developers did not 

challenge the impact fee within this period, and therefore their 

standing to file this action under Utah Code section 11-36a-701 is 

barred.

¶15 The developers also argue that their “constitutional rights

. . . have been violated by the City’s unlawful expenditure and 

retention of impact fees” under the takings clauses of the Utah and 

U.S. constitutions, and that this cause of action was not ripe until the 

six years allowed by statute for the city to spend or encumber the 
ALPINE HOMES, INC. v. CITY OF WEST JORDAN

Opinion of the Court

6

fees had passed. See id. § 11-36a-602. They make two basic 

arguments under the federal takings clause. First, they assert that 

any violation of the Impact Fees Act on the part of West Jordan also 

constitutes a per se violation of the takings clause. Second, they 

argue that the city’s failure to spend all of the impact fees on 

statutorily mandated expenditures within six years violates the 

unconstitutional conditions doctrine applied in Koontz v. St. Johns 

River Water Management District, 133 S. Ct. 2586 (2013). Both of these 

arguments fail. 

A. The Utah Constitution’s Takings Clause

¶16 Both the U.S. Constitution and the Utah Constitution 

protect private property against uncompensated governmental 

takings. U.S. CONST. AMEND. V (“[P]rivate property [shall not] be 

taken for public use, without just compensation.”); UTAH CONST. art. 

I, § 22 (“Private property shall not be taken or damaged for public 

use without just compensation.”). Although the Utah clause is 

similar to the federal clause, “we do not presume that federal court 

interpretations of federal Constitutional provisions control the 

meaning of identical provisions in the Utah Constitution.” State v. 

Briggs, 2008 UT 83, ¶ 24, 199 P.3d 935. Indeed, we have noted that 

the Utah Constitution extends protection above that of the U.S. 

Constitution for damage to private property. See UTAH CONST. art. I, 

§ 22; Utah Dep’t of Transp. v. Admiral Beverage Corp., 2011 UT 62, ¶ 20, 

275 P.3d 208. Thus, the “state constitutional provision [is] broader 

than its federal counterpart.” Bingham v. Roosevelt City Corp., 2010 

UT 37, ¶ 13, 235 P.3d 730. 

¶17 But this court generally does not engage in a state 

constitutional analysis absent adequate briefing. “[C]ursory 

references to the state constitution within arguments otherwise 

dedicated to a federal constitutional claim are inadequate” to raise a 

state constitutional issue. State v. Worwood, 2007 UT 47, ¶ 18, 164 

P.3d 397. The developers cite the takings clause of the Utah 

Constitution in their briefing, but they do not undertake an 

independent analysis of the language of the Utah provision, cite 

authority interpreting it, or otherwise present an independent 

rationale for a takings violation as a matter of state law. See id. 

(listing several methods of adequately briefing a state constitutional 

argument). Absent such briefing, we decline to conduct an 

independent analysis of the Utah takings clause.

B. The U.S. Constitution’s Takings Clause

¶18 The takings clause of the U.S. Constitution is applied against 

the States through the Fourteenth Amendment. There are two broad 
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categories of takings under Supreme Court jurisprudence: physical 

takings and regulatory takings.3 See B.A.M. Dev., L.L.C. v. Salt Lake 

Cty (B.A.M. I), 2006 UT 2, ¶¶ 32–33, 128 P.3d 1161. Each category 

uses a different analysis for determining whether a government 

action rises to the level of a taking requiring just compensation. 

Physical takings are per se takings and must be compensated no 

matter how minimal the impact on the property owner. Loretto v. 

Teleprompter Manhattan CATV Corp., 458 U.S. 419, 434–35 (1982). “A 

taking’s a taking no matter how small.” E. Brigham Daniels (citing

DR. SUESS, HORTON HEARS A WHO! (1954)). On the other hand, 

“regulatory takings do not always trigger an obligation to 

compensate the property owner.” B.A.M. I, 2006 UT 2, ¶ 33. If a 

regulation is “so onerous that its effect is tantamount to a direct 

appropriation or ouster . . . [it] may be compensable.” Lingle v. 

Chevron U.S.A., Inc. 544 U.S. 528, 537 (2005). Regulatory takings are 

evaluated by “engaging in essentially ad hoc, factual inquiries” with 

reference to “several factors—such as economic impact of the 

regulation, its interference with reasonable investment-backed 

expectations, and the character of the government action.” B.A.M. I, 

2006 UT 2, ¶ 33 (quoting MacDonald, Sommer & Frates v. Yolo Cty., 

477 U.S. 340, 349 (1986)). 

¶19 Development exactions share characteristics of both physical 

and regulatory takings. “Exactions are conditions imposed by 

governmental entities on developers for the issuance of a building 

permit or subdivision plat approval.” B.A.M. I, 2006 UT 2, ¶ 34. 

These exactions can be in the form of mandatory land dedications or 

monetary obligations. Whether an exaction is unconstitutional 

depends on if it “has inherited more features from its physical or 

regulatory takings progenitor.” Id. ¶ 35.

¶20 The U.S. Supreme Court has held that development 

exactions must have an “essential nexus” with “rough 

proportionality” to the public burdens that the development will 

impose on government. In Nollan v. California Coastal Commission, 

483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994), 

the Supreme Court examined situations where the government 

3 “As its name implies, a physical taking occurs when a 

governmental entity physically invades or occupies private property 

as a result of which the property is made available for use by 

others.” B.A.M. Dev., L.L.C. v. Salt Lake Cty. (B.A.M. I), 2006 UT 2, 

¶ 32, 128 P.3d 1161. “Regulatory takings, by contrast, occur when a 

governmental entity intrudes to limit the use of private property 

while not physically seizing it.” Id. ¶ 33.
ALPINE HOMES, INC. v. CITY OF WEST JORDAN

Opinion of the Court

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conditioned the approval of a permit to develop property on the 

property owner’s uncompensated transfer of a real property right to 

the government. Nollan, 483 U.S. at 828 (development rights 

conditioned upon grant of a public easement along a beach); Dolan, 

512 U.S. at 379–80 (development rights conditioned upon 

dedications of land for storm drainage and a pedestrian/bicycle 

pathway). The government gave the property owners a choice: 

either waive their constitutional right to just compensation for the 

taking of real property rights or have their land-use permit denied. 

Nollan and Dolan held that placing such a condition on the grant of a 

land-use permit violates the takings clause unless the government 

can show both an “essential nexus” and “rough proportionality” 

between the social costs of the proposed development and the real 

property interest exacted by the government to ameliorate those 

social costs. Dolan, 512 U.S. at 386, 391.

¶21 Until relatively recently, the Supreme Court applied this 

essential nexus and rough proportionality test only where the 

government demanded a real property right in exchange for a landuse permit. But in Koontz, the Court examined a fact pattern in 

which the government essentially demanded money in exchange for 

a land-use permit. 133 S. Ct. at 2593. In that case, a government 

agency conditioned a permit to develop a parcel of property 

containing wetlands upon the landowner’s agreement to fund 

conservation projects on separate, government-owned wetlands. Id. 

The landowner refused to comply with this condition and sued the 

government agency, arguing that the Nollan-Dolan test should be 

applied to determine the constitutionality of a monetary exaction for 

a land-use permit. Id.

¶22 In evaluating the landowner’s claim, the Court first 

emphasized that the Nollan-Dolan line of cases is based upon the 

“unconstitutional conditions doctrine.” Id. at 2594. This doctrine 

“vindicates the Constitution’s enumerated rights by preventing the 

government from coercing people into giving them up.” Id. It 

permits challenges under the takings clause even where the 

government has not seized private property, but instead has 

conditioned a government benefit upon acquiescence to an 

uncompensated taking of private property. 

Extortionate demands for property in the land-use 

permitting context run afoul of the Takings Clause not 

because they take property but because they 

impermissibly burden the right not to have property 

taken without just compensation. As in other 

unconstitutional conditions cases in which someone 
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refuses to cede a constitutional right in the face of 

coercive pressure, the impermissible denial of a 

governmental benefit is a constitutionally cognizable 

injury. 

Id. at 2596. Thus, it is the constitutionality of the governmentimposed condition that is at issue under a Nollan-Dolan claim, not a 

consummated taking of private property that triggers a categorical 

right to compensation.

¶23 The Court then examined whether the Nollan-Dolan test 

must be applied when the government requires a property owner to 

spend money as a precondition to the approval of a land-use permit. 

Id. at 2598–2602. In so doing, the Court had to decide how the 

unconstitutional conditions doctrine in the Nollan-Dolan line of cases 

intersects with the holding of Eastern Enterprises v. Apfel, 524 U.S. 

498, 540 (1998), that the imposition of a general obligation to pay 

money does not trigger the just compensation requirement of the 

takings clause.4

¶24 Distinguishing Eastern Enterprises, the Koontz Court held 

“that so-called ‘monetary exactions’ must satisfy the nexus and 

rough proportionality requirements of Nollan and Dolan.” Id. at 

2599. The Court expressed concern that if the Nollan-Dolan test did 

not apply to monetary exactions, “it would be very easy for land-use 

permitting officials to evade the limitations of Nollan and Dolan.” Id.

The Court further reasoned that the holding of Eastern Enterprises

did not apply in the specific context of land-use exactions because 

where the government conditions a development permit upon the 

payment of money, there is a “direct link between the government’s 

demand and a specific parcel of real property.” Id. at 2600. Thus, a 

demand for money in exchange for a land-use permit is an 

unconstitutional condition under the takings clause unless the 

government can show an essential nexus and rough proportionality 

between the amount of money requested and the social costs of the 

proposed development.

4 Although cash is personal property, a majority of the U.S. 

Supreme Court held in Eastern Enterprises that the government may 

impose a financial obligation without triggering the takings clause’s 

just compensation requirement. 524 U.S. at 540 (Kennedy, J., 

concurring in judgment and dissenting in part); id. at 554–55 (Breyer, 

J., dissenting opinion joined by three other justices).
ALPINE HOMES, INC. v. CITY OF WEST JORDAN

Opinion of the Court

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C. The Developers’ Taking Clause Claims

¶25 The developers first assert that “the Impact Fees Act 

establishes rules governing the City’s charging, collection, use and 

retention of impact fees which ensure that those activities remain 

consistent with Constitutional ‘takings’ requirements.” From this 

premise, the developers argue that any violation of the Act also 

violates the U.S. Constitution. But this attempt to constitutionalize 

all the provisions of the Impact Fees Act fails. Even if we were to 

accept the developers’ dubious assertion that the only purpose of 

each of the provisions of the Act is to codify the essential protections 

guaranteed by the takings clause, the Utah Legislature does not 

establish the bounds of the protections afforded by the U.S. 

Constitution. It is the duty of the judicial branch of government to 

interpret the Constitution. See Marbury v. Madison, 5 U.S. (1 Cranch) 

137, 178–80 (1803). A constitutional claim must be evaluated 

through an analysis of the text of the relevant provision along with 

binding case law interpreting the provision. We therefore reject the 

developers’ argument that a violation of the Impact Fees Act is a per 

se violation of the takings clause. See Tooele Assocs. Ltd. P’ship v. 

Tooele City Corp., 2011 UT 04, ¶ 28, 247 P.3d 371 (“Whether the City 

is in violation of the [Uniform Fiscal Procedures] Act has no bearing 

on whether the City’s . . . fee is constitutional.”).

¶26 Next, the developers argue that because West Jordan 

allegedly failed to spend some of the impact fees it collected within 

six years and spent some of the fees on statutorily prohibited 

expenditures, the city violated their rights under the takings clause. 

Notably, the developers make no claim—either below or to this 

court—that West Jordan’s demands for impact fees constituted 

unconstitutional conditions at the time the demands were made 

because the fee lacked either an essential nexus or rough 

proportionality to the anticipated social costs of the proposed 

development. Rather, the developers argue that the manner in 

which the city later spent the impact fees ran afoul of Koontz and the 

Nollan-Dolan analysis. 

¶27 We conclude that none of West Jordan’s alleged violations of 

the Impact Fees Act implicate the unconstitutional conditions 

doctrine described in the Nollan-Dolan line of cases. Nollan, Dolan, 

and their progeny do not directly enforce the just compensation 

requirement for a consummated taking of private property. Rather, 

this line of cases evaluates the constitutionality of conditioning the 

grant of a land-use permit upon a landowner’s uncompensated 

transfer of private property to the government. Koontz, 133 S. Ct. at 

2594–95. Thus, it is the government’s demand for property—
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whether it be real property rights or an obligation to spend money—

in exchange for the permit that is subject to evaluation under the 

Nollan-Dolan test. The proper analysis is whether there is a nexus 

and rough proportionality between the property demanded and the 

projected social costs of the proposed development. Id. at 2595 

(“Nollan and Dolan . . . allow[] the government to condition approval 

of a permit on the dedication of property to the public so long as 

there is a ‘nexus’ and ‘rough proportionality’ between the property 

that the government demands and the social costs of the applicant’s 

proposal.” (citations omitted)); Dolan, 512 U.S. at 388 (“The second 

part of our analysis requires us to determine whether the degree of 

the exactions demanded by the city’s permit conditions bears the 

required relationship to the projected impact of petitioner’s 

proposed development.”).

¶28 In the context of a city’s demand for impact fees in exchange 

for a land-use permit, the applicant may challenge the fee by 

asserting that it lacks either an essential nexus or rough 

proportionality to the anticipated external impacts of the proposed 

development. See Koontz, 133 S. Ct. at 2595, 2603. The key inquiry is 

whether the condition imposed by the government is constitutional. 

The demand for property is either permissible or forbidden under 

the takings clause at the time the demand is made based upon an 

evaluation of the “projected impact of [the] proposed development.” 

Dolan, 512 U.S. at 388; see Koontz, 133 S. Ct. 2586.

¶29 The developers’ allegations here that West Jordan either 

failed to spend impact fees within six years or spent the fees on 

impermissible expenditures are inadequate to support a takings 

claim. It does not matter that these claims would not be ripe until 

the six-year period for spending them elapsed. The manner in which 

a city spends impact fees does not affect the constitutionality of the 

initial demand for fees, which is the focus of the Koontz monetary 

exactions analysis. That the fees were not spent within six years 

does not affect the analysis of whether there was a nexus or whether 

the impact fees were roughly proportional at the time they were 

exacted. The developers may not expect to be the beneficiaries of 

any unspent funds after six years, just as the city cannot 

retroactively demand payment from the developers for 

expenditures that exceed the impact fees revenue for necessary 

improvements. The developers have not cited any cases that have 

applied a Nollan-Dolan analysis to a municipality’s expenditure of 

impact fees. And because this analysis examines the relationship 

between the government’s demand for property and the anticipated 

social costs of a proposed land use, there is no logical basis for this 

court to expand the application of the Nollan-Dolan test to a time 
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Opinion of the Court

12

frame other than when the impact fees were exacted. Thus the 

developers have failed to state a takings claim for which relief can 

be granted.

II. THE EQUITY CLAIMS

¶30 Absent statutorily granted standing, a party must establish 

standing as defined by Utah case law to bring an action in Utah 

courts. As both Jenkins v. Swan, 675 P.2d 1145 (Utah 1983), and Utah 

Chapter of the Sierra Club v. Utah Air Quality Board, 2006 UT 74, 148 

P.3d 960, have made clear, the standing requirement in Utah is a 

protection of separation of powers that prevents the judiciary from 

“entertain[ing] generalized grievances that are more appropriately 

directed to the legislative and executive branches of the state 

government,” Jenkins, 675 P.2d at 1149. See Id. at 1148–50; Sierra Club, 

2006 UT 74, ¶¶ 11–12, 17. 

Inherent in the tripartite allocation of governmental 

powers is the historical and pragmatic conviction that 

particular disputes are most amenable to resolution in 

particular forums. The requirement that a plaintiff have 

a personal stake in the outcome of a dispute is intended 

to confine the courts to a role consistent with the 

separation of powers, and to limit the jurisdiction of 

the courts to those disputes which are most efficiently 

and effectively resolved through the judicial process.

Jenkins, 675 P.2d at 1149. The judicial branch uses the standing 

doctrine to ensure that “[a]n overstepping of appropriate restraints 

on judicial review” does not occur. Id. at 1150.

A. Standing and the Equity Claims

¶31 Developers have no statutorily granted right to an 

“equitable” reimbursement in this case and must therefore satisfy the 

common law requirements for standing. “At the pleading stage of 

litigation, plaintiffs may satisfy our standing requirements . . . so 

long as the complaint contains adequate factual context to satisfy our 

notice pleading requirements.” Brown v. Div. of Water Rights of Dep’t 

of Nat. Res., 2010 UT 14, ¶ 21, 228 P.3d 747. The notice pleading 

requirement is governed by rule 8 of the Utah Rules of Civil 

Procedure, which requires a claim to “contain a short and 

plain . . . statement of the claim showing that the party is entitled to 

relief.”5 UTAH R. CIV. P. 8(a). Further, rule 17 of the Utah Rules of 

5 “An original claim, counterclaim, cross-claim or third-party 

claim must contain a short and plain: (1) statement of the claim 

(continued . . .)
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Civil Procedure requires that “[e]very action . . . be prosecuted in the 

name of the real party in interest.” UTAH R. CIV. P. 17(a). Pursuant to 

these rules and our case law, plaintiffs can establish standing by 

showing either through the traditional test, or, failing that, through 

the alternative test, that they are a real party in interest who is 

entitled to relief. See Brown, 2010 UT 14, ¶ 21; Utah Chapter of the 

Sierra Club, 2006 UT 74, ¶ 18. 

¶32 Because an ability to prove standing may depend on facts 

that get explored during the discovery process, we do not hold 

plaintiffs to a high standard of proof to meet the standing 

requirement at the early stages of litigation. Here, the issue of 

standing is being reviewed in an appeal from a motion to dismiss 

brought prior to discovery. Accordingly, the developers’ standing 

will be considered as though all allegations in their complaint, and 

all reasonable inferences drawn from those allegations, are taken as 

true. 

¶33 In this case, even assuming all allegations in the developers’ 

complaint and reasonable inferences drawn from them are true, 

there is still an insufficient factual basis in the record to show that 

the developers have standing for a claim in equity. There is no 

showing that the developers have sustained an injury that has a 

direct effect on them or that is suitably resolved by the courts. They 

have failed to establish standing through the traditional standing 

test. As the developers have not argued alternative standing, we do 

not address it in this opinion.

1. Traditional Standing

¶34 The traditional test, sometimes called the “distinct and 

palpable injury” requirement, assesses whether a “party has ‘a real 

and personal interest in the dispute.’” Utah Chapter of the Sierra Club,

2006 UT 74, ¶¶ 19–20 (citation omitted). To show standing, a “party 

must allege that it has suffered or will ‘suffer[ ] some distinct and 

palpable injury that gives [it] a personal stake in the outcome of the 

legal dispute.’” Id. ¶¶ 19 (alterations in original) (citation omitted).

This test involves a three-step inquiry to determine whether a 

distinct and palpable injury exists: 

(continued. . .)

showing that the party is entitled to relief; and (2) demand for 

judgment for specified relief.” UTAH R. CIV. P. 8(a).
ALPINE HOMES, INC. v. CITY OF WEST JORDAN

Opinion of the Court

14

(1) “the party must assert that it has been or will be 

‘adversely affected by the [challenged] actions’”;

(2) “the party must allege a causal relationship 

‘between the injury to the party, the [challenged] 

actions and the relief requested’”; and

(3) “the relief requested must be ‘substantially 

likely to redress the injury claimed.’”

Id. (alterations in original) (citations omitted). This inquiry is 

conjunctive. In other words, each step must be demonstrated in 

order to confirm standing. A party must “satisf[y] all three . . . 

criteria” id. ¶ 20 to establish that it “ha[s] the incentive to ‘fully 

develop[ ] all the material factual and legal issues in an effort to 

convince the court that the relief requested will redress the claimed 

injury.’” Id. ¶ 20 (second alteration in original) (citation omitted).

¶35 The developers have identified two theories under which 

they might have suffered a legal injury: (1) they could have retained 

contractual rights with the home purchasers to a refund of the

impact fees if found excessive or (2) the purchase prices of the homes 

they sold did not compensate them for the impact fee.

¶36 The developers have suggested that they could have entered 

into a contractual agreement with the lot purchasers wherein they 

retained the rights to a refund of impact fees should there be such a 

refund. Even assuming that a refund of the impact fees to any party 

was a possibility, there is no factual evidence in the record or the 

briefs to support the theory that the developers retained these rights 

through a contract. Counsel for the developers conceded during oral 

argument that it would be highly improbable for such contracts to 

exist, and their existence would obviously be known to the 

developers as contractual parties. As this theory leads only to a mere 

possibility and not a reasonable probability that such a contract 

exists, this court will not consider it a sufficient allegation to 

establish standing. See Brown, 2010 UT 14, ¶ 19.

¶37 Nor can the developers establish standing under the 

compensation theory. As we noted in Bradshaw v. Wilkinson Water 

Co., “[r]eal estate development is a speculative enterprise.” 2004 UT 

38, ¶ 17, 94 P.3d 242. The real estate market is subject to the 

fluctuations of the economy, and the profit margin will largely be 

determined on the market conditions at the time of sale. Whether the 

impact fees were recouped in the sale of the lots is immaterial to 

establishing standing. The impact fees, if constitutional at the time of 

exaction, are part of the price of doing business in real estate 

development, and developers assume the risk that they might not be 
Cite as: 2017 UT 45

Opinion of the Court

15

recouped when individual lots are sold. To suffer a legal injury, 

there must be a violation of a legal right, and the developers have no 

legal right to recoup impact fees from lot or home purchasers. Here, 

West Jordan lawfully exercised its police powers to impose an 

impact fee on the developers. “[I]f the owner [of a property] through 

a lawful exercise of [police] power suffers inconvenience, injury, or a 

loss, it is regarded as damnum absque injuria.” Colman v. Utah State 

Land Bd., 795 P.2d 622, 628 (Utah 1990) (citation omitted). The 

developers do not argue that there was a constitutional violation in 

the assessment of the impact fees, and without a violation of a legal 

right when the fees were collected, there is no compensable loss to 

the developers.

2. Traditional Standing Not Established

¶38 The developers have failed to establish standing under the 

traditional standing test. The only expectation the developers could 

reasonably have for paying the constitutionally levied impact fees 

was approval for their development, which they received. After the 

payment of the impact fees, the residents of West Jordan retain the 

interest in having those fees used as designed, not the developers. 

Any injury from misuse of impact fees would be to the residents, 

either from being underserviced or from increased taxes to cover 

costs of additional development that should be paid from the impact 

fees. We express no opinion here on the nature of any such injury or 

on what, if any, remedies for it might exist. But the relief requested

by the developers—the refund of any unspent or misspent impact 

fees—would not redress the true parties in interest. 

B. Separation of Powers

¶39 Our standing requirement helps to ensure that the judiciary 

does not exceed the constitutional limits on judicial power. 

“[J]udicial power to determine the validity of executive or legislative 

action” can be invoked only when a “claimant [can] show that he has 

sustained or is immediately in danger of sustaining a direct injury as 

a result of that action.” Baird v. State, 574 P.2d 713, 717 (Utah 1978). 

To grant standing to a litigant, who cannot 

distinguish himself from all citizens, would be a 

significant inroad on the representative form of 

government, and cast the courts in the role of 

supervising the coordinate branches of government. It 

would convert the judiciary into an open forum for the 

resolution of political and ideological disputes about 

the performance of government.
ALPINE HOMES, INC. v. CITY OF WEST JORDAN

Opinion of the Court

16

Id. It is the judiciary’s role to interpret statutes and to ensure their 

constitutionality. See Marbury v. Madison, 5 U.S. (1 Cranch) 137

(1803); Matheson v. Ferry, 641 P.2d 674 (Utah 1982). It is not the 

judiciary’s role to augment existing statutes to satisfy private parties 

in matters of public interest, nor to enforce statutes where no judicial 

remedy for private parties is anticipated or provided for in the 

statute. These roles are the primary domain of the legislative and 

executive branches.

¶40 As the developers noted in arguments before the district 

court, the issue at hand can be addressed in the legislature. “[T]he 

airing of generalized grievances and the vindication of public rights 

are properly addressed to the legislature, a forum where 

freewheeling debate on broad issues of public policy is in order.” 

Jenkins, 675 P.2d at 1149–50. If the developers want the right to a 

refund of unspent impact fees, or if they want an enforcement 

provision, or if they do not like the ways that impact fees are 

calculated or may be expended, they can seek legislative 

modification of the statute. The appropriate remedy for the 

developers is not an action brought before the judiciary, but an 

appeal to the legislature. Moreover, execution and enforcement of 

the law is primarily under the purview of the executive branch. The 

Impact Fees Act allows developers to object to impact fees within 

certain parameters. See UTAH CODE §§ 11-36a-701 to -705. If no 

objection is made and adjudicated at the time the impact fees were 

assessed as provided by statute, the claim can no longer be brought 

by the developers.

CONCLUSION

¶41 The developers have failed to state a takings claim for which 

relief can be granted. The developers lack standing to bring their 

claims in equity. That lack of standing denies the judiciary subject 

matter jurisdiction over the developers’ claims in equity. We reverse 

the denial of the motion to dismiss on both the takings claims and 

the claims in equity and remand to the district court for dismissal of 

these claims.