This opinion is subject to revision before final

publication in the Pacific Reporter

2018 UT 21

IN THE

SUPREME COURT OF THE STATE OF UTAH

JEANETTE POTTER, ET AL.,

1

Appellants,

v.

SOUTH SALT LAKE CITY,

Appellee.

No. 20150931

Filed June 5, 2018

On Direct Appeal

Third District, Salt Lake

The Honorable Paul G. Maughan

No. 140908636

Attorneys:

Craig S. Cook, Salt Lake City, for appellants

Jody K. Burnett, Robert C. Keller, Salt Lake City, for appellee

ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, 

in which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, JUSTICE PEARCE, 

and JUSTICE PETERSEN joined.

_____________________________________________________________

1 Other appellants are Darrel Roberts, Barbara Mackay, Carl 

Webster, June Jackson, William Eresuma, Heather Bernales, and 

Eugene Baierschmidt.
POTTER v. SOUTH SALT LAKE CITY

Opinion of the Court

2

ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:

¶1 Jeanette Potter and others filed suit challenging a decision of 

the South Salt Lake City Council to close a portion of Truman and 

Burton Avenues. The district court dismissed Potter’s claims on 

summary judgment. We affirm. In so doing we conclude that the

petition to vacate was valid under Utah Code section 10-9a-609.5, 

that Potter has not identified any prejudice resulting from any 

alleged deficiency in the petition, and that notice of the city council 

meetings was sufficient under Utah Code section 10-9a-208. 

¶2 In holding that Potter failed to prove prejudice we revise and 

clarify the standard set forth in Springville Citizens for a Better 

Community v. City of Springville, 1999 UT 25, 979 P.2d 332. We hold 

that a party alleging error by a land use authority is no longer 

required to show that the “decision would have been different” but 

for the error. Id. ¶ 31. Instead we conclude that a party can establish 

prejudice by showing a reasonable likelihood that the error changed the 

land use authority’s decision.

I

¶3 In 2008 the South Salt Lake City Council voted to close a 

portion of Truman and Burton Avenues in response to a petition by 

RIM Enterprises. RIM owned a Chrysler dealership on State Street 

that occupied three separate blocks divided only by Truman and 

Burton Avenues. And the car dealership sought to expand its 

operation by consolidating the three properties, thereby complying 

with Chrysler Corporation’s acreage requirement.

¶4 The city council conditioned its decision to vacate both streets 

on the dealership’s buying the four parcels on Truman Avenue that 

abutted a portion of Truman that RIM Enterprises wanted vacated.

A plat map reflecting this decision was placed with the city recorder 

in 2008—to be recorded only upon a showing that the dealership had

met the condition. The dealership never purchased the parcels, 

however, so the two streets were never vacated.

¶5 Years passed and RIM Enterprises sold the dealership to Salt 

Lake Valley Chrysler Dodge in 2014. In May 2014 the dealership

filed another petition with the South Salt Lake City Council. This 

new petition sought to vacate only the portion of the streets adjacent 

to land the dealership already owned, thus avoiding the need to 

purchase the four properties on Truman Avenue. After notice and a 

public hearing the city council denied the petition.
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Opinion of the Court

3

¶6 In October 2014 the dealership submitted a revised petition to 

vacate. The revised petition included mitigation measures aimed at 

addressing the concerns residents raised during the earlier public 

hearing. The city sent notices out to residents in the area apprising 

them of the petition and the public meeting to be held on 

December 3, 2014. The city also placed large signs with similar 

language along Truman and Burton Avenues, as required by Utah

Code section 10-9a-208(2)(c).

¶7 Residents overwhelmingly opposed the action at the 

December 3 meeting. Only the dealership’s attorney spoke in favor 

during the public comment portion. After taking public comment the 

council elected to table the discussion until the following meeting, 

placing the item on the unfinished-business agenda for December 10, 

2014.

¶8 When the city council turned to the issue at its December 10 

meeting, the city attorney addressed the council regarding his legal 

opinions. He noted that “the decision has already been made to close 

the streets”—referring to the council’s conditional approval of the 

2008 petition—“so the real issue here” is whether “the City [is] 

happy with the additional mitigation measures.” Following the city 

attorney’s presentation, several residents, including Potter’s current

legal counsel, addressed the city council and took issue with the city 

attorney’s comments. One resident remarked, “If the decision has 

already been made and it doesn’t matter, then why are we here?”

¶9 The city attorney later addressed the council again and 

explained that the conditions in the 2008 ordinance did not contain a 

sunset clause. He noted that if the city council rejected the 

dealership’s 2014 petition “then the previous action remains in place, 

and at whatever time the conditions of the previous action are met, 

the streets will be closed but they’ll be closed without the mitigation 

measures that have arisen out of this most recent activity.”

¶10 These comments seemed to surprise at least some of the 

members of the city council. One councilwoman expressed 

frustration with the process and with the attorney’s legal advice. She 

noted the lack of understanding among the councilmembers that the 

closure “is happening in one form or another” because the 2008 

ordinance remained valid and could be invoked whenever the

dealership met the conditions.

¶11 Following some debate, the South Salt Lake City Council 

voted five to two to vacate a portion of Truman and Burton 

Avenues. The council found, as required by statute, that “good cause 
POTTER v. SOUTH SALT LAKE CITY

Opinion of the Court

4

exist[ed] for the vacation” and that “neither the public interest nor 

any person w[ould] be materially injured by the vacation.” See UTAH 

CODE § 10-9a-609.5(3).

¶12 Potter sought review of the action in district court. She asked

the district court to set aside the decision under Utah Code section 

10-9a-801 on the grounds that the decision was illegal.

¶13 Potter specified two principal grounds for challenging the city 

council’s decision. First, she asserted that the council’s decision was 

illegal because the dealership’s petition to vacate failed to list the 

name and address of each owner whose property was “adjacent to 

the public street” being vacated, as required by Utah Code section 

10-9a-609.5(1)(a)(i). Second, she challenged the sufficiency of the 

notice of the city council meeting in which the streets in question 

were vacated. Here Potter noted the city attorney’s comments in the 

December 10 meeting—comments indicating the attorney’s view that 

the council had already decided to close the streets under the first 

petition to vacate, and that the “real issue” was whether to endorse 

the “additional mitigation measures” in the revised petition. And 

Potter claimed that those comments deprived the public of a 

meaningful opportunity to be heard on the proposed action.

¶14 Both parties filed motions for summary judgment. The district 

court granted the city’s motion. It held first that the dealership’s 

petition satisfied the requirements of Utah Code section 

10-9a-609.5(1)(a). In so doing the court interpreted the requirement 

of naming each owner whose property was “adjacent to the public 

street” being vacated to apply only to owners of property abutting 

the portion of the street being vacated. And because the dealership 

owned all the property abutting the portion of the streets being 

vacated, the court concluded that the dealership was not required to 

name any property owners in its petition.

¶15 The district court also upheld the validity of the notice of the 

city council meeting. It concluded that the city attorney’s “comments 

did not render the proceedings defective or illegal in any way.” And 

it held that no further notice was required despite the city attorney’s 

apparent reframing of the issue.
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Opinion of the Court

5

¶16 Potter filed this appeal. We review the district court’s decision 

on summary judgment de novo.

2 See Bahr v. Imus, 2011 UT 19, ¶ 16, 

250 P.3d 56.

II

¶17 Potter raises two sets of issues on appeal. She challenges the 

sufficiency of the dealership’s petition to vacate under Utah Code 

section 10-9a-609.5(1)(a). And she also asserts that the public was not 

given adequate notice of the nature of the city council’s meeting. We 

disagree and affirm.

A

¶18 Potter makes two sets of arguments in challenging the 

sufficiency of the petition to vacate. She first asserts that the petition 

was defective because it failed to include the names and addresses of 

all property owners whose land was “adjacent to the public street” 

being vacated, as required by Utah Code section 10-9a-609.5(1)(a)(i). 

And she also insists that this defect is sufficient to sustain reversal 

regardless of the fact that it had no effect on the city council’s 

decision. We reject both sets of arguments.

1

¶19 Utah Code section 10-9a-609.5(1) requires a party seeking “to 

vacate some or all of a public street” to file a petition that includes 

“(a) the name and address of each owner of record of land that is: (i) 

adjacent to the public street, right-of-way, or easement; or (ii) 

accessed exclusively by or within 300 feet of the public street, right-

_____________________________________________________________

2 Potter appears to assume that our review is of the city council’s 

action (not the district court’s). That is perhaps understandable in 

light of potentially confusing language in Fox v. Park City, where we 

said that “we act as if we [a]re reviewing [a] land use authority’s 

decision directly” when we consider an appeal from a district court’s 

decision reviewing “an order of a local land use authority.” 2008 UT 

85, ¶ 11, 200 P.3d 182. But the “as if” formulation is just a reflection 

of the de novo nature of our review. We cannot ignore the district 

court’s decision. That is the decision before us on appeal. See

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

--- P.3d ---. And the appellant bears the burden of establishing a 

reversible error in the district court’s decision.
POTTER v. SOUTH SALT LAKE CITY

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6

of-way, or easement.” The threshold question is what it means to be 

“adjacent to the public street.” There is some ambiguity in that 

clause. It could be a reference to the portion of the street being 

vacated—to section 609.5(1)’s introductory clause, which refers to 

“some or all of [the] public street” sought to be vacated. UTAH CODE

§ 10-9a-609.5(1). Or, alternatively, the referenced “public street” 

could be taken literally; it could mean the entire length of the street 

that bears that name—here, Truman and Burton Avenues from start 

to finish (where they begin at State Street until they end many blocks 

to the east).

¶20 Either of these readings is semantically possible if we view the 

term “public street” in isolation—divorced from its statutory context. 

But we must consider the statutory context. See Olsen v. Eagle 

Mountain City, 2011 UT 10, ¶ 12 n.5, 248 P.3d 465 (“[T]he meaning of 

statutory language, plain or not, depends on context.” (alteration in 

original) (citation omitted)). And the context strongly favors the 

former reading over the latter. 

¶21 This statute prescribes the required elements of a petition 

seeking to vacate “some or all of a public street.” UTAH CODE

§ 10-9a-609.5(1). And in context, the use of the phrase “public street” 

is easily understood as a reference back to the subject of the 

petition—to the portion of the street (“some or all” of it) sought to be 

vacated. The alternative reading (that “public street” means the 

entirety of the street from beginning to end), moreover, seems 

difficult to reconcile with the apparent purpose of the statute 

(another element of context). A public street may extend many 

blocks—or even many miles—from start to finish. And it is hard to 

think of a reason why the legislature would want to require a 

petition to list owners whose property is situated many miles away 

from the portion of the street being vacated. With this in mind, it is 

more natural to read the term “public street” as a reference back to 

the subject of the petition—to the portion of the street being vacated.

¶22 Potter acknowledges the difficulty of the more expansive 

reading of “public street.” And she accordingly offers a third 

possibility. In Potter’s view the referenced “public street” could be 

viewed as ending at the next cross street—for Truman and Burton 

Avenues, at 200 East. We reject that reading, however, as we find no 

basis for it in the statutory text. The reference to “public street” could 

mean all of Truman or Burton Avenue. Or, in the context of this 

statute, it could mean the portions of those streets being vacated. 

There is no natural reading of “public street,” however, that extends 
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Opinion of the Court

7

beyond the portion being vacated and arbitrarily ends at the next 

cross street.

¶23 We reject Potter’s challenge to the car dealership’s petition on 

this basis. We conclude that the petition complied with Utah Code 

section 10-9a-609.5(1)(a) because there were no other owners of 

property adjacent to the portions of the public streets being vacated. 

And we affirm the district court’s decision on summary judgment on 

this basis.

2

¶24 We have long held that parties challenging a land use 

decision “must establish that they were prejudiced by the City’s 

noncompliance with its ordinances.” Springville Citizens for a Better 

Cmty. v. City of Springville, 1999 UT 25, ¶ 31, 979 P.2d 332. Here there 

is an admitted lack of prejudice—Potter concedes that the alleged 

defect in the car dealership’s petition had no effect on the city 

council’s decision. And that is an alternative basis for affirming the 

district court’s decision on summary judgment.

¶25 Potter seeks to avoid this result by asking us to adopt a 

prejudice standard that differs from the one we prescribed in 

Springville Citizens. Her argument proceeds in two steps. 

¶26 Potter first asks us to revise our formulation of the standard of 

prejudice in Springville Citizens—a standard requiring a party 

challenging a land use decision to establish that “the City’s decision 

would have been different” but for its noncompliance with its 

ordinances or governing statutes. Id. In support of this argument, 

Potter cites our court of appeals’ observation that this formulation 

“imposes a difficult—if not impossible—burden on a citizen who 

seeks to challenge the procedural legality of a city’s land use 

decision.” Gardner v. Perry City, 2000 UT App 1, ¶ 20 n.7, 994 P.2d 

811. And Potter asks us to reformulate the prejudice standard in a 

manner that will avoid the difficulties of the Springville Citizens

regime.

¶27 Potter’s second point is more comprehensive. Citing eminent 

domain cases, Potter asserts that there should be no requirement of 

proof of prejudice in a case challenging a decision to vacate a public 

street. The point here is that this is no ordinary land use decision. In 

Potter’s view the decision to vacate a street is more like a city’s 

decision to condemn land. And because in Potter’s view there is no 

requirement of proof of prejudice in an action challenging an 
POTTER v. SOUTH SALT LAKE CITY

Opinion of the Court

8

eminent domain proceeding,3 Potter asks us to eliminate the 

requirement of proof of prejudice in a case like this one.

¶28 We find no basis for this latter invitation. We can assume for 

the sake of argument that prejudice is not an element of an action 

challenging an exercise of the eminent domain power. But Potter is 

not challenging an exercise of the eminent domain power. Eminent 

domain involves the exercise of government power in taking private

property rights. And Potter is challenging a decision to revoke public

access and control of a street—the petition at issue here is one 

seeking “to vacate some or all of a public street.” UTAH CODE 

§ 10-9a-609.5(1) (emphasis added). So the city’s action in vacating a 

street has no effect on private easements over the roadway—it “may 

not be construed to impair . . . any right-of-way or easement of any 

lot owner.”4 Id. § 10-9a-609.5(5)(b). For that reason this is not a 

challenge to the exercise of the eminent domain power. It is a 

challenge to a land use decision. And the general principles of 

judicial review apply.

¶29 A core element of these principles is the requirement of proof 

of prejudice. As a general rule we do not overturn a decision of a 

lower court or administrative body upon a mere showing of error; 

proof of prejudice is typically required. See UTAH R. CIV. P. 61 (“The 

court at every stage of the proceeding must disregard any error or 

defect in the proceeding which does not affect the substantial rights 

of the parties.”); State v. Goins, 2017 UT 61, ¶ 48, --- P.3d --- (noting, 

_____________________________________________________________

3 Potter cites the following cases in support of her argument: Salt 

Lake City Corp. v. Evans Dev. Grp., LLC, 2016 UT 15, 369 P.3d 1263;

Marion Energy, Inc. v. KFJ Ranch, P’ship, 2011 UT 50, ¶ 16, 267 P.3d 

863; and Town of Tremonton v. Johnson, 164 P. 190, 191 (Utah 1917).

We yield no opinion on the premise of Potter’s argument. We see no 

reason to reach the question whether prejudice is required in an 

eminent domain setting because we conclude that this case does not 

sound in eminent domain.

4 This statutory scheme only affects public rights, so we do not 

decide the question whether these residents have a private easement 

under Boskovich v. Midvale City Corp., 243 P.2d 435 (Utah 1952), that 

could warrant a separate proceeding for just compensation.
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in the context of a criminal case, that an error warrants reversal only 

if it results in prejudice).

¶30 This requirement has long been extended to judicial review of 

land use decisions. See, e.g., Springville Citizens, 1999 UT 25, ¶ 31

(holding that a party challenging a land use decision must establish 

prejudice). And this application is likewise reflected in settled case 

law in other jurisdictions. See, e.g., In re Eastview at Middlebury, Inc., 

992 A.2d 1014, 1022–23 (Vt. 2009) (“It is a well established rule that 

the party who alleges error has the burden of showing that he has 

been prejudiced thereby.” (citation omitted)); Quality Rock Prods., Inc. 

v. Thurston Cty., 108 P.3d 805, 813 (Wash. Ct. App. 2005) (noting that 

“a defect in the caption of a land use petition’s summons” did not 

warrant reversal “absent demonstrated prejudice”).

¶31 For these reasons we decline the request that we abandon the 

element of prejudice in a case like this one. But we do acknowledge a 

threshold concern about the viability of the precise formulation of 

the standard of proof of prejudice in Springville Citizens. A 

requirement of proof that a city’s land use decision “would have 

been different,” Springville Citizens, 1999 UT 25, ¶ 31, is a high bar. 

On reflection, in fact, we think this comes close to an insurmountable 

barrier. See Gardner, 2000 UT App 1, ¶ 20 n.7 (suggesting that the 

standard may be “impossible” to meet). And that is untenable. 

¶32 This concern has led us to reconsider the standard in 

Springville Citizens. In response to the briefing in this case we have 

reevaluated the Springville Citizens standard. And we have 

concluded that the time has come to revise the standard set forth in 

Springville Citizens.

5

¶33 Proof of prejudice is required. But the required standard of 

prejudice should not be insurmountable. With that in mind, we hold 

that a party challenging a land use decision is not required to prove 

_____________________________________________________________

5 We do not reach this conclusion lightly. We afford a measure of 

deference to Springville Citizens under our doctrine of stare decisis. See 

Eldridge v. Johndrow, 2015 UT 21, ¶ 21, 345 P.3d 553. But we find that 

the Springville Citizens formulation is ripe for reconsideration 

because it is unworkable in practice and incapable of being applied 

in accordance with its literal terms. See id. ¶ 40 (explaining that 

precedent is susceptible to being overruled when it’s unworkable—

or incapable of consistent application). 
POTTER v. SOUTH SALT LAKE CITY

Opinion of the Court

10

that the city’s decision “would have been different” absent the 

violation of city law. See Sierra Club v. D.R. Horton-Schuler Homes, 

LLC, 364 P.3d 213, 233 (Haw. 2015) (harmlessness inquiry “‘does not 

require proof that the errors necessarily changed the result of the 

proceeding below’” (citation omitted)). Instead, it is enough for the 

challenging party to show that there is a reasonable likelihood that 

the legal defect in the city’s process changed the outcome of the 

proceeding.

¶34 We affirm, however, on the ground that Potter cannot 

establish prejudice even under this more permissive standard. Potter 

herself concedes that the alleged defects in the car dealership’s 

petition had no effect on the outcome of the city council’s decision. 

And the city was entitled to summary judgment because there is no 

reasonable likelihood that the alleged defect in the petition had any 

effect on the outcome of the proceedings.

B

¶35 Potter also challenges the sufficiency of the public notice of 

the city council meeting in question. The governing statute requires a 

“public hearing” for “any proposal to vacate some or all of a public 

street.” UTAH CODE § 10-9a-208(1)(a). It also requires the city to “give 

notice of the date, place, and time of the hearing.” Id.

§ 10-9a-208(1)(b).

¶36 These requirements were fulfilled in advance of the city 

council meeting in question. The city gave notice of a hearing in 

which it planned to address the car dealership’s petition to vacate 

portions of Truman and Burton Avenue. And that petition was in 

fact the subject of the city council’s deliberations and decision.

¶37 Potter concedes these points. But she insists that the 

sufficiency of the city’s notice was obviated by comments made by 

the city attorney during the hearing. In those comments the city 

attorney expressed his view that the question presented was not 

whether to vacate the streets in question but how. The attorney opined 

that the council’s approval of the prior petition was still on the table, 

and thus that the question for the council was whether to accept the 

conditions in the new petition or revert to the decision approving the 

old one. And Potter contends that these comments somehow 

obviated the sufficiency of the city’s notice.

¶38 Potter’s argument goes to the subject matter of the noticed 

hearing. Because the city attorney reframed the debate for the 

council, Potter insists that the hearing was not really about whether 
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Opinion of the Court

11

to grant the car dealership’s petition to vacate; it was about how best 

to vacate the streets in question. And in Potter’s view that deprived 

the public of adequate notice of the true subject matter of the 

hearing.

¶39 Potter’s frustration is understandable. She and other residents 

attended the public meeting believing they could persuade the city 

council not to close the streets. But this does not make the city’s 

notice insufficient. The governing statute requires only that the 

public be given notice of the date, place, and time of the hearing on a 

given petition to vacate. That notice was given. And the subject of 

the hearing was in fact the car dealership’s petition: That was the 

subject of the city council’s deliberations; and the council’s decision 

was, in fact, to grant that petition. 

¶40 Potter’s point, ultimately, is that the city attorney’s advocacy 

affected the substance of the council’s deliberations. But that is 

insufficient. Public hearings are unpredictable. City councilmembers 

and public commenters often try to reframe a debate in ways that 

favor their position. Yet that is not enough to obviate the sufficiency 

of the notice of a hearing. The public notice can never anticipate all 

of the twists and turns that may occur in a city council meeting. And 

the public notice is sufficient “as long as the items actually 

considered at the meeting are reasonably related to the subject 

matter indicated by the notice.” Suarez v. Grand Cty., 2012 UT 72,

¶ 74, 296 P.3d 688 (citation omitted). 

¶41 This standard is easily satisfied here. The hearing was 

specifically and extensively focused on the petition to vacate that 

was mentioned in the notice. And the city attorney’s comments 

didn’t change that. The city attorney was offering views of relevance 

to the question presented to the council—of whether to grant the car 

dealership’s latest petition. Because those views were “reasonably 

related” to the subject matter of the proceeding, there was no defect 

in the notice given by the city.