2020 UT App 139

THE UTAH COURT OF APPEALS

SALT LAKE CITY CORPORATION, SALT LAKE CITY DEPARTMENT OF 

AIRPORTS, AND TOOELE VALLEY AIRPORT,

Appellants and Cross-appellees,

v.

DICK D. KUNZ, DICK DARWIN KUNZ, BARBARA JEAN KUNZ, AND 

NEIL NORRIS KUNZ,

Appellees and Cross-appellants.

Opinion

No. 20190010-CA

Filed October 16, 2020

Third District Court, Tooele Department

The Honorable Matthew Bates

No. 070301010

Jody K. Burnett and Robert C. Keller, Attorneys for

Appellants and Cross-appellees

Robert E. Mansfield and Megan E. Garrett, Attorneys

for Appellees and Cross-appellants

JUDGE DAVID N. MORTENSEN authored this Opinion, in which 

JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN M. HARRIS

concurred.

MORTENSEN, Judge:

¶1 This case offers a feast of legal issues—ranging from 

procedural to constitutional—but its main course is a cautionary 

tale to government entities: they must follow the exact statutory 

requirements for bringing a condemnation action under Utah 

Code section 78B-6-504(2)(c). Salt Lake City (the City) attempted 

to exercise its eminent domain power to obtain the air rights of 
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Appellees (Owners), in the form of an avigation easement,1

connected with a runway on the south side of one of its airports, 

namely, the Tooele Valley Airport (TVA). After years of 

litigation, the district court dismissed the City’s condemnation 

action because the City indisputably had failed to strictly comply 

with the requirements of Utah Code section 78B-6-504(2)(c). The 

City contends that the court erred in dismissing the action 

because (1) Owners made a binding admission that the City had 

complied with the statutory notice provision, (2) substantial 

compliance with the statutory requirements should have rescued

the City from dismissal, and (3) the court should have allowed 

the City to amend its complaint. Owners dispute the merits of 

these contentions. They also raise their own contentions on 

cross-appeal, arguing that (1) the City has no power to condemn

property situated outside its boundaries, (2) the City failed to 

negotiate as required by statute, (3) the district court erred in 

granting judgment as a matter of law to the City on valuation of 

the air rights, and (4) the district court erred in denying Owners 

an award of attorney fees and litigation costs.

¶2 In short, we affirm the district court’s dismissal of this 

case based on the City’s violation of the requirements of Utah 

Code section 78B-6-504(2)(c)—requirements we conclude

demand strict compliance and for which prejudice need not be 

demonstrated. Because we do so, we decline to address Owners’ 

contentions regarding negotiation and valuation as they may or 

may not be presented in any new proceeding. We do explain, 

however, why Owners’ response to a statement of fact in an 

earlier partial summary judgment motion did not constitute an

admission that was binding beyond the context of the then-

 

1. “An avigation easement [is] an easement permitting 

unimpeded aircraft flights over the servient estate.” County of 

Lenawee v. Wagley, Nos. 302533, 302534, 302535, 302537, 302538, 

2011 WL 6379321, at *1 n.1 (Mich. Ct. App. Dec. 20, 2011) (per 

curiam) (cleaned up); accord Avigation Easement, Black’s Law 

Dictionary (11th ed. 2019).
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pending motion, why the City was required to strictly follow the 

terms of the statute, and why the court did not abuse its 

discretion when it denied the City’s request to amend its

complaint. We also address why Owners are not entitled to an 

award of attorney fees and costs, and we answer an associated 

question of whether the City had extraterritorial eminent

domain power in this case.

BACKGROUND

The Three City Council Meetings

¶3 The City acquired TVA—an airport located in Tooele 

County—in 1991. Owners2 own the land directly south of TVA.

In 2004, the City put together a plan to allow for an aircraft 

approach from the south using runway 35. As a condition of 

federal funding on this project, the City was required to assure 

the protection of open airspace on a defined slope extending 

downward to the runway, compatible with normal airport 

operations, including aircraft landing and takeoff. The necessary 

open airspace extended over property to the south of the 

runway. The City identified Owners as the property holders of 

that land.

¶4 Thereafter, the City entered into negotiations with 

Owners and prepared appraisals of the air rights in an effort to 

acquire an avigation easement from them. But Owners did not 

accept the City’s offer. So, the City submitted a proposed 

condemnation resolution to the city council for a vote on March 

6, 2007. Before the meeting, the City provided written notice to 

Owners on February 16, 2007. Owners attended the meeting and 

spoke in opposition to the condemnation, though their time was 

 

2. We recognize that Owners did not do everything in this case 

together; however, we refer to Owners’ actions collectively for 

convenience.
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limited to three minutes. The city council delayed a vote on the 

resolution until March 13, 2007. Those in attendance were orally 

notified that the motion would be deferred to the March 13, 2007 

meeting. Owners did not, however, receive written notice 

related to this second meeting.

¶5 Owners attended this subsequent meeting and again 

spoke in opposition to condemnation. Again, they were only

allowed two to three minutes each to speak to the city council. 

And again, the vote was postponed. The City then negotiated

with Owners to acquire the property in fee simple absolute, 

rather than an easement. Because the parties were unable to 

come to an agreement, a third city council meeting was held on 

May 22, 2007. The City sent written notice of this third meeting 

to Owners three business days before the meeting was held. 

Owners attended the meeting, but they were not allowed to 

speak, despite specifically requesting that opportunity. The city 

council thereafter voted in favor of adopting the resolution 

authorizing formal condemnation proceedings. After the 

meeting, the City again attempted to purchase Owners’ 

property, but Owners still refused to sell. Therefore, the City 

initiated this action to obtain the avigation easement by 

condemnation.

The Early Stages of the Condemnation Litigation

¶6 The parties proceeded to litigate. Early on, Owners

moved for judgment on the pleadings, arguing that the City did 

not have authority to condemn the air rights because the 

property was located outside the City’s geographical 

boundaries. The City opposed the motion and filed its own 

motion for partial summary judgment on this issue. In its

motion, the City stated the reason for the motion: “This 

motion is based on the grounds that the City owns and operates 

[TVA] . . . [and] has been granted the authority to condemn the 

air rights in question pursuant to several statutes including 

without limitation Utah Code Ann. §§ 72-10-413, 72-10-203 

through 205, 10-8-2, and related statutes.” The City further 
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asserted, “The authority to condemn is expressly granted. But if 

condemnation is pursued, the condemnation process must 

comply with appropriate procedures, statutory requirements 

and payment of just compensation.” The City also maintained

that the airspace condemnation was part of a broader expansion 

and improvement of both TVA and the Salt Lake International 

Airport, and that the new runway at TVA would make TVA 

“more safe, functional and efficient so that it could relieve 

certain demands on the SLC [Airport].” In its motion, the City 

set forth several statements of fact, supported by an affidavit,

that outlined the City’s ownership interest of TVA, the plan and 

potential federal funding to improve TVA, and the history of 

negotiations with Owners, and stated, in relevant part:

7. After timely and proper notice and the 

satisfaction of all statutory requirements and 

conditions, the Salt Lake City Council, at a public 

meeting duly and regularly held, considered the 

condemnation of the Air Space Easement and 

passed and adopted Resolution No. 37 of 2007, 

authorizing the City to initiate condemnation 

proceedings . . . . 

. . . .

10. The subject condemnation, and the Airport 

Project of which it is a part, provides direct benefits 

to . . . the City and its residents by improving 

safety and reducing congestion at the [Salt Lake 

City International Airport].

Owners responded and stated that all statements of fact, other 

than statement ten, were “undisputed for purposes of the current 

motions before this Court.” (Emphasis added.)

¶7 In May 2009, after briefing and oral argument, the district 

court denied Owners’ motion for judgment on the pleadings and 

granted the City’s partial summary judgment motion. The court

identified the sole issue in dispute as whether the City had 
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extraterritorial jurisdiction to condemn Owners’ airspace. The 

court specifically explained that Owners did “not address the 

express authorization or distinguish the language allowing for 

municipal condemnation in” various sections of the Utah Code. 

The court ultimately concluded that various statutory provisions 

supplied the extraterritorial authority for the City to condemn 

Owners’ air rights. Because Owners did not contest the matter 

for purposes of the motion, the court did not expressly rule 

whether conditions precedent to taking the property—notice and 

an opportunity to be heard—had been satisfied.

¶8 Years of litigation followed. In 2010, the court granted the 

City’s motion for an order of immediate occupancy, allowing the 

City to occupy Owners’ airspace, and ordered the City to submit 

an advance occupancy deposit. Owners never requested to 

withdraw the funds. That same year, the City amended its 

complaint. Owners in turn filed an amended answer and therein

asserted an affirmative defense that the City’s “claims [were] 

barred in that it failed to give the requisite notices required by 

Utah Code Ann. § 78B-6-501, et seq.” Several years later, the City 

propounded a discovery request that Owners produce all 

documents “that relate in any way to the claims and affirmative 

defenses at issue in this proceeding.” Along the way, the case

was reassigned in the normal course to a different district judge.

The Dismissal of the City’s Condemnation Complaint

¶9 In 2018, “on the eve of trial,” the district court granted the 

City’s motion in limine to exclude Owners’ only designated 

appraisal expert. The City then moved for judgment as a matter 

of law on the issue of valuation due to the lack of competing 

evidence. This prompted Owners to oppose the City’s motion 

with their own motion for judgment as a matter of law, arguing 

that one of their affirmative defenses had “not been resolved in 

these proceedings”—whether the City had failed to comply with 

statutory prerequisites to initiate a condemnation action under 
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section 78B-6-504 of the Utah Code.3 See Utah Code Ann. § 78B6-504(2)(c)–(d) (LexisNexis Supp. 2018). In response, the City 

described the procedural history of this case and claimed that,

based on Owners’ response to the City’s 2009 partial summary 

judgment motion, the City’s compliance with the statutory 

procedures had already been established. At a hearing on the 

dueling motions, the court granted the City’s motion on the issue 

of valuation, and it also explained that whether the City had

authority to seek the easement had been decided in the City’s 

favor, but “whether there was proper notice and disclosure as 

required by the statute ha[d] not yet been decided.” The court 

further explained that it came to this conclusion based on the 

language of the court’s partial summary judgment order and the 

history of this case:

What is unique about this case . . . is that when the 

[Owners] filed an opposition to the motion for 

partial summary judgment, they made clear in that 

motion that they were only conceding those facts 

for purposes of the motion. . . . [A] party reading 

that order without considering the full history of 

the briefing might walk away with the impression 

that the Court had ruled as a matter of law that . . . 

all the prerequisites to condemnation were at this 

point undisputed and fully satisfied . . . [, but] the 

issues the Court has described are still open . . . .

¶10 The parties then filed competing motions for summary 

judgment on the issue of whether the City had complied with 

section 78B-6-504. The City argued that it had complied with the 

statute, and in the alternative, that Owners could not 

 

3. At the time, Utah Code section 78B-6-504 was numbered as 78-

34-4. But we cite the current version of this section and all others, 

unless otherwise noted, in this opinion because they have not 

changed substantively.
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demonstrate prejudice, and as a further alternative, that the City 

substantially complied with the statute. For their part, Owners

argued that the City “provided belated notice for the hearing at 

which the vote . . . was taken and refused to allow [Owners] the 

opportunity to speak at that hearing” in violation of the statute.

¶11 After briefing and oral argument, the court granted 

Owners’ motion on the issue. In doing so, the court described the 

three city council meetings and explained that “as to whether 

there was adequate notice and an opportunity to be heard, . . .

the City has not met this particular condition precedent to filing 

a condemnation action.” Specifically, the court noted, “The 

notice that was given to the [Owners] for that [third] meeting 

was late and they were not given an opportunity to speak.” The 

court also concluded that, in this eminent domain context, a 

party is not required to show prejudice.

¶12 Owners then sought, among other things, a dismissal of 

the City’s complaint and an award of litigation fees and costs 

under federal law and the Utah Constitution. See Utah Const. art. 

I, § 22; 42 U.S.C. § 4654. The City opposed the motion. On the 

issue of dismissal, the City requested leave to amend its 

complaint. The City argued that the “procedural deficiency” was 

subject to “a procedural solution.” The City claimed it intended 

to initiate a new process that would comply with the statute. But 

the City did not attach a proposed amended complaint to its 

motion. In response, Owners argued that the City’s intentions 

“are insufficient to avoid the fact that [its] prior, separate attempt 

at eminent domain failed,” further asserting that any new 

attempt should require new proceedings.

¶13 The court then ruled on the remaining issues. It granted 

Owners’ motion to dismiss, denied Owners’ motion for litigation 

fees and costs, and denied the City’s request to amend its 

complaint. Related to dismissal, the court concluded that the 

“statutory scheme needs to be strictly followed” and reiterated 

its earlier ruling, explaining that “failure to provide an adequate 

notice to be heard . . . is a fatal error . . . that warrants dismissal 
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of the case.” As to the litigation expenses, the court denied 

Owners’ request under federal law. The court concluded that the 

requirement—a final judgment that the agency cannot acquire 

the real property by condemnation—was not established. The 

court elaborated on the difference between its ruling—that the 

City’s action was barred on procedural grounds—and one in 

which condemnation was rejected on the merits, stating, “[W]e 

fully expect that at some point, the City will bring a 

condemnation claim and—and will likely be successful . . . on 

that, if they jump through the hoops all correctly. . . . [T]here has 

not been a final judgment that condemnation cannot be had.” 

The court similarly denied Owners’ request for litigation fees 

and costs under the Utah Constitution, citing Board of County 

Commissioners v. Ferrebee, 844 P.2d 308 (Utah 1992), and 

explaining that just compensation does not include litigation 

expenses.

¶14 With the case now dismissed, the City appeals and

Owners cross-appeal.

ISSUES AND STANDARDS OF REVIEW

¶15 The parties raise various issues for our consideration.4

The City appeals, contending first that the district court erred in 

dismissing the case under section 78B-6-504(2)(c) of the Utah 

Code. “We review questions of statutory interpretation for 

correctness.” Utah Dep’t of Transp. v. FPA West Point, LLC, 2012 

UT 79, ¶ 9, 304 P.3d 810. And because this case was dismissed on 

summary judgment, we review the district court’s legal 

conclusions and ultimate grant or denial of summary judgment

for correctness and view the facts in the light most favorable to 

 

4. As mentioned, supra ¶ 2, because we affirm the district court’s 

dismissal of this case, we need not and do not address Owners’ 

arguments related to issues of negotiation and valuation.
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the nonmoving party. See LD III LLC v. Mapleton City, 2020 UT 

App 41, n.1, 462 P.3d 816.

¶16 The City contends in the alternative that the court erred 

by not allowing the City to amend its complaint. Generally, we 

review a “denial of motions for leave to amend under an abuse 

of discretion standard.” Haik v. Jones, 2018 UT 39, ¶ 11, 427 P.3d 

1155. But “[w]hen the purported futility of the amendment 

justifies the denial of a motion to amend, we review for 

correctness.” Id. ¶ 16.

¶17 Owners cross-appeal, contending that the district court 

erred in concluding that they were not entitled to attorney fees 

and costs under federal law and the Utah Constitution. Owners

also raise an embedded issue of whether the court erred in 

concluding that the City possesses extraterritorial power to take 

their air rights under various sections of the Utah Code. These 

issues are questions of law that we review for correctness. See 

Richards v. Cox, 2019 UT 57, ¶ 7, 450 P.3d 1074 (explaining that 

issues of the interpretation of constitutional and statutory 

provisions are questions of law reviewed for correctness).

ANALYSIS

I. Summary Judgment

¶18 The City argues that the district court erred in dismissing 

its complaint because the district court “failed to give effect to 

[Owners’] admissions and misinterpreted the May 2009 partial 

summary judgment granted to the City.” Specifically, the City 

argues that Owners’ admissions—that certain facts were 

“undisputed for the purposes of the current motions”—were 

binding and that the succeeding judge failed to properly

consider the previous judge’s partial summary judgment ruling. 

The City also argues that the district court erred by dismissing 

this case under section 78B-6-504(2)(c) of the Utah Code. We 

disagree on each point and address them in turn.
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A. Owners’ Admission in the 2009 Summary Judgment 

Proceedings

¶19 We recently addressed admissions in the context of 

summary judgment proceedings in Thompson v. Capener, 2019 UT 

App 119, 446 P.3d 603. In that case, we explained,

The [party] expressly qualified that their admission 

was solely for the purpose of the [temporary 

restraining order] motion. Not only do we decline 

to establish precedent that would discourage 

parties from making admissions for the limited 

purpose of a given motion, but we encourage 

litigants to do so when reasonable. If a party 

determines that a fact is immaterial or would 

muddy the water in any given motion, we see no 

harm in conditionally admitting that fact to 

promote efficiency in resolving that particular 

motion. And a party should not be punished for 

doing so. 

Id. n.4. This case presents a similar scenario.

¶20 Here, any admissions Owners made in the 2009 summary 

judgment proceedings were limited in their applicability to the 

then-pending motions before the district court. Indeed, Owners

stated that it was “undisputed for purposes of the current 

motions” that the City carried out “timely and proper notice and 

satisfaction of all statutory requirements and conditions.” And 

the only issue being contested in those motions was whether the 

City exceeded its extraterritorial eminent domain power. 

Owners’ admissions came in response to the City’s partial 

summary judgment motion on the extraterritorial eminent 

domain issue, which in turn was in response to Owners’ motion 

for judgment on the pleadings based on that same issue. And the 

district court’s ruling on the matter was focused entirely on that 

solitary issue.
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¶21 Moreover, the City’s own arguments put Owners’ 

admission in context, which was that the concession was limited 

to the dispute over the City’s extraterritorial eminent domain 

power. The City specifically pointed out that its partial motion

for summary judgment was “based on the grounds that the City 

owns and operates [TVA] . . . [and] has been granted the 

authority to condemn the air rights in question.” And whether 

the City has the “authority” to condemn is a different issue 

entirely than whether the City complied with the statutory 

requirements in seeking condemnation. The district court did 

not address anything regarding the latter issue in ruling on 

whether the City had exceeded its extraterritorial eminent 

domain power. Indeed, the district judge later reassigned to the 

case specifically noted that Owners “made clear in [their 

response] that they were only conceding [the latter issue] for 

purposes of the motion. . . . [A] party reading that order without 

considering the full history of the briefing might walk away with 

the [wrong] impression.”

¶22 The parties’ conduct after the admission further buttresses 

our conclusion that the scope of the 2009 summary judgment 

motions was limited to adjudication of the extraterritorial 

authority issue. Owners never withdrew the immediate 

occupancy deposit, signaling that they retained their defenses, 

including their defense that the City had not followed the proper 

notice procedures. Owners also raised the statutory notice 

requirements as an affirmative defense to the City’s amended 

complaint, indicating that satisfaction of the statutory 

requirements was in dispute. And the City propounded a 

discovery request for documents related to that affirmative 

defense. Merely pointing to a momentary or conditional

stipulation does not force the district court’s hand on the issue. 

See Luna v. Luna, 2020 UT 63, ¶ 38; Baldwin v. Vantage Corp., 676 

P.2d 413, 415 (Utah 1984) (“[T]he conduct of both parties 

throughout the remainder of the proceeding showed that this

question was a material issue for the judge to determine.”).

Therefore, it is not dispositive that Owners did not dispute the
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issue of notice and an opportunity to be heard at that juncture of 

the litigation.

¶23 In short, Owners’ statement was not a conclusive 

admission on its own terms, due its context, and this was 

underscored by the parties’ subsequent conduct. Rather, the 

issue was conditionally conceded to focus on the issue then at 

hand. See Thompson, 2019 UT App 119, n.4.

B. Judicial Consideration

¶24 The City next contends that the successor judge 

committed reversible error in how he dealt with the predecessor 

judge’s 2009 partial summary judgment ruling. In particular, the 

City argues that the successor judge erred in concluding that the 

issue of “whether there was proper notice and disclosure as 

required by the statute ha[d] not yet been decided.” The City 

bases this argument on the language in the ruling in which the 

court explained that one of the undisputed issues was that 

Owners “were provided with timely and proper notice 

regarding the condemnation efforts.” We reject this argument 

because we disagree with its premise. The language the City 

refers to was not a ruling on the issue.

¶25 When a party files a motion, a court evaluates whether 

the party is entitled to the relief it seeks. See Utah R. Civ. P. 7; id.

R. 56(a). When the court does not engage in any analysis, 

evaluation, or state its decision, it has not ruled on that issue. 

Additionally, “[a] court’s interpretation of its own order is 

reviewed for clear abuse of discretion and we afford the district 

court great deference.” Uintah Basin Med. Center v. Hardy, 2008 

UT 15, ¶ 9, 179 P.3d 786.

¶26 Here, reconsideration of the notice issue was unnecessary 

because the issue was not decided in the 2009 partial summary 

judgment ruling. In that ruling, the court framed the issue 

addressed by the motion—whether the City had extraterritorial 

eminent domain power—and described the issues it was 
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assuming for the purposes of the motion at that time. The court 

merely identified that the notice issue was not in dispute for that 

motion and then did not mention it again. Indeed, the court 

spent the rest of the order addressing the issue of extraterritorial 

eminent domain power. In short, we agree with the successor 

judge that the notice issue had not been decided in the 2009 

partial summary judgment ruling, and therefore the court did 

not commit reversible error in its interpretation of the 

predecessor judge’s order. See id.5

C. Section 78B-6-504(2)(c)—Statutory Conditions Precedent 

to Taking

¶27 The City finally contends that the district court erred in 

dismissing its complaint under Utah Code section 78B-6-

504(2)(c). The City concedes that it did not strictly comply with 

the requirements of the statute, namely by neglecting the time 

requirement for sending written notice and not allowing Owners

to speak at the third council meeting. But the City proceeds with 

a three-part argument. It first argues that “the district court erred 

by requiring strict compliance,” suggesting substantial 

compliance is enough. It next asserts that the actual notice 

provided was enough. And it finally argues that Owners had to,

but could not, show prejudice. We disagree and affirm the 

district court’s dismissal.

¶28 To frame the arguments, we first examine the statute’s 

language. The relevant language of section 78B-6-504 confirms 

 

5. As a side note, this case is somewhat unusual from a practical 

standpoint. In many cases, after an order of immediate 

occupancy is granted, the government begins occupying the 

space in a way that is permanent (e.g., by installing a road or 

power poles). Hence, parties in other cases who choose to wait 

years after the order of immediate occupancy to raise an issue 

with the original notice or opportunity to be heard may confront 

a more difficult practical impediment.
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that the City’s actions fell short of both the ten-business-daywritten notice and the-opportunity-to-be-heard requirements. 

See Utah Code Ann. § 78B-6-504(2)(c)–(d) (LexisNexis Supp. 

2018).6 Those subsections required that, “[b]efore taking a final 

vote to approve the filing of an eminent domain action,” the City 

provide written notice to Owners “at least 10 business days 

before the public meeting” and “allow the property owner the 

opportunity to be heard on the proposed taking” at each 

meeting a vote was expected to be held. Id.7

 

6. The relevant provisions, in full, state: 

(c) Before taking a final vote to approve the filing 

of an eminent domain action, the governing body 

of each political subdivision intending to take 

property shall provide written notice to each 

owner of property to be taken of each public 

meeting of the political subdivision’s governing 

body at which a vote on the proposed taking is 

expected to occur and allow the property owner 

the opportunity to be heard on the proposed 

taking.

(d) The requirement under Subsection (2)(c) to 

provide notice to a property owner is satisfied by 

the governing body mailing the written notice to 

the property owner:

(i) at the owner’s address as shown on the 

records of the county assessor’s office; and

(ii) at least 10 business days before the public 

meeting.

Utah Code Ann. § 78B-6-504(2)(c)–(d) (LexisNexis Supp. 2018).

7. There is wrangling over whether allowing landowners an 

opportunity to speak at some point in the process fulfills theopportunity-to-be-heard component of the statute, rather than 

(continued...)
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¶29 The City is right to concede that it did not fulfill the 

statutory requirements. Based on the undisputed facts, the City 

fully complied with those requirements as to the first meeting by 

sending notice at least ten business days in advance and 

allowing Owners to speak at the meeting. However, it only half 

complied as to the second meeting because it allowed Owners to 

speak but did not send written notice at least ten business days 

in advance. And it did not comply with either requirement as to 

the third meeting because the notice it sent arrived only three 

business days before the meeting and Owners were not allowed 

an opportunity to be heard.

¶30 Notwithstanding its acknowledged shortcomings, the 

City maintains that dismissal of this case was erroneous, arguing

that substantial compliance rescues it from its procedural 

missteps. But the City’s argument is contrary to longstanding 

precedent. Statutes governing the procedures and prerequisites 

for exercising either a general or a specific grant of eminent 

domain power receive a strict construction. See Salt Lake County 

v. Murray City Redevelopment, 598 P.2d 1339, 1345 (Utah 1979)

(“The general rule is that, where the statute prescribes the 

 

(...continued)

allowing them the opportunity to speak at every meeting. In our 

view, the phrase “of each public meeting” and more specifically 

the word “each” answers that landowners of property to be 

taken are entitled to receive an opportunity to speak at every 

public meeting with an expected vote. See Utah Code Ann. 

§ 78B-6-504(2)(c) (LexisNexis Supp. 2018). The point is to speak 

to the decision makers. Asserting that being given three minutes 

to speak at any point in the process is sufficient ignores the 

reality that in any given meeting city council members may be 

absent or the membership of the council can change over time. 

Accordingly, unless the landowner is allowed to speak at the 

meeting where the vote is taken, those voting might never hear 

any of the landowner’s concerns. Regardless of the answer, 

however, the City did not fulfill the notice requirement.
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procedure or steps to be taken by a municipal corporation in 

exercising the right of eminent domain, the procedure prescribed 

by the statute becomes a matter of substance, and must be 

strictly followed by the condemnor as against the owner of the 

property sought to be condemned.” (cleaned up)); accord Town of 

Perry v. Thomas, 22 P.2d 343, 346 (Utah 1933); Town of Tremonton 

v. Johnston, 164 P. 190, 192 (Utah 1917); W. & G. Co. v. 

Redevelopment Agency, 802 P.2d 755, 761 (Utah Ct. App. 1990).

¶31 The case of Salt Lake County v. Murray City Redevelopment, 

598 P.2d 1339 (Utah 1979), is particularly on point. There, Salt 

Lake County attempted to redevelop areas it had determined to 

be blighted, published several notices, and adopted an ordinance 

to do so. Id. at 1340. The appellants challenged the ordinance, but 

the district court granted summary judgment to the county. Id. at 

1341. On appeal, the parties disputed whether the county had 

complied with a notice statute. Id. at 1344. That statute required 

notice to be given “not less than once a week for [f]our 

successive weeks” to enable the county to exercise eminent 

domain power. Id. (cleaned up). In concluding that the county 

violated the statute, the court explained that the statute was to be 

construed strictly: “[B]ecause redevelopment is a serious action 

that may be in derogation of individual property rights, . . . strict 

compliance with the enabling legislation is required to enact an 

ordinance setting up a redevelopment plan.” Id. The court later 

explained that the county’s several publications did not meet the 

statute’s strict requirements and that “the ordinance was not 

validly adopted” because “[n]o notice was published during” 

the fourth week and “the hearing commenced on the [v]ery day 

the last notice was published.” Id. at 1345–46; see id. (noting that 

courts “must remain sensitive to the need for [s]trict compliance 

with . . . statute[s] concerning notice . . . in order to protect 

private property rights, which are of fundamental importance”). 

The court therefore reversed. Id. at 1346.

¶32 Here, the facts are strikingly similar. While the City 

notified Owners of the eminent domain proceedings, the notice 

was inadequate because it did not adhere to the statute’s 
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20190010-CA 18 2020 UT App 139

directive regarding the timing of that notice. Thus, Murray City 

Redevelopment confirms that this statute must be construed 

strictly against the City. Moreover, the purpose for reading 

eminent domain statutes strictly—to protect the rights of 

property owners—also supports reading this statute strictly. See 

Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 17 n.16, 267 

P.3d 863.

¶33 Lastly, the cases the City cites are distinguishable because 

they deal with other statutory topics. See Aaron & Morey Bonds 

& Bail v. Third Dist. Court, 2007 UT 24, ¶ 11, 156 P.3d 801 (fax 

number requirement in bail bond notification); Cache County v. 

Property Tax Div., 922 P.2d 758, 764 (Utah 1996) (time to complete 

review of property tax appeal); Kennecott Copper Corp. v. Salt Lake 

County, 575 P.2d 705, 707 (Utah 1978) (time for setting tax levy); 

Southwick v. Southwick, 2011 UT App 222, ¶ 11, 259 P.3d 1071 

(recitation of statutory provision related to disclaimer of interest 

in trust). And the statute in this case does not relate to a mere fax 

number, recitation of a statute in a disclaimer, or a timeframe 

like the ones in the cited cases; instead, it goes to the weighty 

matter of providing procedural fairness and placing a check on a 

government entity’s immense power to deprive an owner of a 

substantive private property right. Thus, those cases do not 

allow a reading of substantial compliance into this statute

because the statute’s requirements are mandatory.

¶34 For the foregoing reasons, we conclude that the notice 

and hearing requirements of section 78B-6-504(2)(c) are 

mandatory and require strict compliance. See Greene v. Utah 

Transit Auth., 2001 UT 109, ¶ 14, 37 P.3d 1156 (“Where, as here, 

the statute is clear, readily available, and easily accessible by 

counsel, there is no reason to require anything less than strict 

compliance.”).

¶35 That leaves the City’s two latter arguments. The City 

makes an argument that actual notice and previous 

opportunities to be heard fulfilled the purposes of the statute. 

But this argument is a nonstarter. Once the statute is determined 
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20190010-CA 19 2020 UT App 139

to require strict compliance, all bets are off for any actions other 

than exactness. See Moore v. Schwendiman, 750 P.2d 204, 206 (Utah 

Ct. App. 1988) (“[O]ne must comply precisely with a mandatory 

requirement or the transaction or process is invalidated.”).

Actual notice is not what the statute says. And “[c]ompliance 

with the statute is the determining issue, not actual notice. In the 

absence of some ambiguity, we will not disturb explicit 

legislative requirements and read into the statute an actual 

notice exception.” See Greene, 2001 UT 109, ¶ 15. Doing so would 

fly in the face of our pursuit, which is to give full force to our 

legislature’s intent and the law as it is written. The City’s actions 

indisputably violated the explicit terms of the statute and 

subverted its objective of abundant procedural fairness to 

property owners. Therefore, the City’s argument is 

unpersuasive.

¶36 The City also argues that the district court erred by not 

requiring Owners to prove prejudice. Owners contest the 

premise that prejudice need be shown at all with respect to 

violations of eminent domain statutes. We agree that a prejudice 

showing is unnecessary here.8

¶37 Many of the same authorities that dictated a strict 

construction of statutes regarding substantive rights like section 

78B-6-504 also teach that showing prejudice is unnecessary when 

a substantive right is at issue. See McBride-Williams v. Huard, 2004 

UT 21, ¶ 12, 94 P.3d 175 (“A party’s failure to satisfy a 

 

8. We acknowledge that our supreme court recently declined to 

address this issue because it was unnecessary to do so under the 

circumstances of the case before them. See Potter v. South Salt 

Lake City, 2018 UT 21, ¶¶ 27–28 & n.3, 422 P.3d 803 (“We see no 

reason to reach the question whether prejudice is required in an 

eminent domain setting because we conclude this case does not 

sound in eminent domain.”). To us, it appears that our supreme 

court has repeatedly addressed the issue implicitly in their 

previous jurisprudence as we explain.
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20190010-CA 20 2020 UT App 139

precondition results in an adjudication for lack of jurisdiction 

. . . .” (cleaned up)); Murray City Redevelopment, 598 P.2d at 1345

(explaining that procedural preconditions are “jurisdictional, 

and may not be disregarded,” and not conducting prejudice 

analysis (cleaned up)); Town of Tremonton v. Johnston, 164 P. 190,

192 (Utah 1917) (stating that landowners have “the right to insist 

that the statute be followed” and reversing without analyzing 

prejudice); W. & G. Co. v. Redevelopment Agency, 802 P.2d 755, 765

(Utah Ct. App. 1990) (explaining that “[i]f adequate notice and 

an opportunity to be heard are not given, the proceedings are 

void and those not properly notified are not bound by the 

proceedings because the giving of such notice is jurisdictional” 

and not addressing the issue of prejudice); Moore, 750 P.2d at 206 

(“[O]ne must comply precisely with a mandatory requirement or 

the transaction or process is invalidated.”); Southwick, 2011 UT 

App 222, ¶ 12 (suggesting that substantial rights require strict 

compliance, not prejudice consideration).

¶38 Two cases from our supreme court lend further support 

to not requiring a prejudice analysis. In Marion Energy, Inc. v. KFJ 

Ranch Partnership, 2011 UT 50, 267 P.3d 863, the court affirmed 

the district court’s dismissal of the case due to lack of authority 

to condemn the land. Id. ¶ 34. Importantly, the court did not 

analyze prejudice in coming to its conclusion. See generally id.

And more recently in Salt Lake City Corp. v. Evans Development 

Group, LLC, 2016 UT 15, 369 P.3d 1263, the court vacated a final 

judgment of condemnation because the government entity 

“failed to follow statutory requirements that the condemnor be in 

charge of the public use to which the property [is] put and to 

oversee the construction of that public use.” Id. ¶ 23. Again, the 

court did this without engaging in a prejudice analysis. See 

generally id. Thus, we conclude that Owners need not show 

prejudice.

¶39 In sum, we view section 78B-6-504(2)(c)’s requirements as 

strict based on longstanding precedent. Actual notice simply 

won’t fly. And we conclude that Owners need not show 
Salt Lake City v. Kunz

20190010-CA 21 2020 UT App 139

prejudice in this context. Accordingly, we affirm the district 

court’s interpretation and dismissal under the statute.

II. Amendment of the Complaint

¶40 Alternatively, the City argues that the district court erred 

by not allowing the City to amend its complaint. We disagree. 

An amendment in this case would be unwarranted. The City 

failed to adequately explain why an amendment should be 

granted and failed to provide a proposed amended complaint

for the district court’s consideration. See Utah R. Civ. P. 15(a)(2) 

(“The party must attach its proposed amended pleading to the 

motion to permit an amended pleading.”); Haik v. Jones, 2018 UT 

39, ¶¶ 34–35, 427 P.3d 1155 (“The district court did not abuse its 

discretion in denying a procedurally deficient motion. The 

district court also properly concluded that such an amendment 

would be futile because [petitioner] provided no basis under 

which he would have alleged standing.”); Puttuck v. Gendron, 

2008 UT App 362, ¶ 24, 199 P.3d 971 (“The trial court did not 

abuse its discretion in denying [p]laintiffs’ request for leave to 

amend their complaint because [p]laintiffs did not comply with 

Utah’s formal motion practice rules when they made the 

request.”).

¶41 In addition, amending the complaint would be futile 

because the City cannot retroactively follow the statutory 

preconditions for condemning private property rights. The facts 

are undisputed, and amendment will not change them. The City 

failed to follow the statutory conditions, and it must file a new 

complaint—alleging facts that fulfill section 78B-6-504—if it 

elects to condemn Owners’ air rights again. Accordingly, the 

district court’s refusal to allow the City to amend its complaint

was not improper.

III. Attorney Fees and Costs

¶42 As part of their cross-appeal, Owners contend that the 

district court erred by refusing to award them attorney fees and 
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20190010-CA 22 2020 UT App 139

other litigation costs under both federal law and the Utah 

Constitution. However, after their appeal was filed, our supreme 

court issued its decision in Utah Department of Transportation v. 

Boggess-Draper Co., 2020 UT 35, 467 P.3d 840. This prompted 

Owners to correctly concede that constitutional just 

compensation does not include litigation fees and costs. See Utah 

Const. art. I, § 22; Boggess-Draper Co., 2020 UT 35, ¶ 47 (affirming 

the denial of a motion for litigation fees and costs under the Utah 

Constitution); Board of County Comm’rs v. Ferrebee, 844 P.2d 308, 

313–14 (Utah 1992) (holding that the constitutional right of just 

compensation extends only to takings of and damages to 

property, not to the costs of litigation); Redevelopment Agency v. 

Daskalas, 785 P.2d 1112, 1123 (Utah Ct. App. 1989) (explaining 

that “just compensation is for the property and not to the owner” 

and that “attorney fees and other” litigation expenses “are noncompensable as ‘just compensation’” (cleaned up)); see also 

United States v. Bodcaw Co., 440 U.S. 202, 203 (1979) (per curiam) 

(“Attorneys’ fees and expenses are not embraced within just 

compensation.” (cleaned up)). Accordingly, we do not address 

this constitutional issue further.

¶43 As to Owners’ arguments under federal law, we disagree

and affirm the district court’s denial of fees and costs. Owners

start by arguing that they are entitled to their litigation fees and 

costs under federal law, primarily citing section 4654 of the 

United States Code.

9 That statute provides that an owner of real 

property is entitled to reasonable costs and attorney fees if “the 

 

9. Owners peripherally cite a federal regulation. See 49 C.F.R. 

§ 24.107 (2005). But even assuming that regulation applies to the 

City because it receives federal funding, Owners are not entitled 

to litigation fees and costs under that regulation for one of the 

same reasons they are not entitled to litigation fees and costs 

under the statute: the district court did not enter a judgment that 

the City cannot condemn the property rights; rather, the ruling 

was that the City did not follow the statutory checklist for doing 

so. See infra ¶ 44.
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20190010-CA 23 2020 UT App 139

final judgment is that the Federal agency cannot acquire the real 

property by condemnation.” 42 U.S.C. § 4654(a)(1). When the 

relevant statutory subsection is read, it reveals that Owners’ 

argument has several insurmountable flaws:

The Federal court having jurisdiction of a proceeding 

instituted by a Federal agency to acquire real 

property by condemnation shall award the owner 

of any right, or title to, or interest in, such real 

property such sum as will in the opinion of the 

court reimburse such owner for his reasonable 

costs, disbursements, and expenses, including 

reasonable attorney, appraisal, and engineering 

fees, actually incurred because of the 

condemnation proceedings, if—

(1) the final judgment is that the Federal agency cannot 

acquire the real property by condemnation . . . .

Id. § 4654(a) (emphasis added).

¶44 First, that section is unhelpful to Owners because it 

applies only to federal courts by its express terms. See id. Second, 

it is also inapplicable because the City is indisputably not a 

federal agency. See id.; see also id. § 4601(1) (providing a 

definition for “Federal agency” that does not include states or 

their political subdivisions); Ferrebee, 844 P.2d at 312 (“[T]he 

policies outlined in subchapter III of the Uniform Act apply only 

to federal agencies and programs . . . .”); 8A Patrick J. Rohan 

& Melvin A. Reskin, Nichols on Eminent Domain § G20.05[3] (3d 

ed. 2018) (“[T]he provisions of 42 U.S.C. § 4654, entitling 

successful plaintiffs to litigation expenses, apply only to takings 

by a federal agency . . . .”). Finally, even if that statute were 

applicable, it would not provide the result Owners seek because 

the final judgment of the district court was not that the City 

“cannot acquire the real property by condemnation.” See 42 

U.S.C. § 4654(a)(1) (emphasis added). Rather, the court 

dismissed this particular action because the City did not follow 

the statutory procedural conditions for doing so. Cf. United States 
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20190010-CA 24 2020 UT App 139

v. 4.18 Acres of Land, 542 F.2d 786, 789 (9th Cir. 1976) (per curiam) 

(“The trial court held only that the action was premature, 

dismissing without prejudice because of a correctable procedural 

flaw. Such a dismissal is not a final judgment that the federal 

agency ‘cannot acquire the real property by condemnation.’”

(cleaned up)). Indeed, the district court made this very 

distinction and specifically stated that the City can condemn the 

property, stating: “[W]e fully expect that at some point, the City 

will bring a condemnation claim and—and will likely be 

successful at some point on that, if they jump through the hoops 

all correctly. . . . [T]here has not been a final judgment that 

condemnation cannot be had.” Thus, the statute does not 

support Owners’ argument for litigation fees and costs.

¶45 In response, Owners contend that the district court erred 

in concluding that the City could potentially acquire the 

property by condemnation. They argue that the City cannot 

acquire their property by condemnation, asserting that such 

would exceed the City’s extraterritorial condemnation power. 

But the district court’s conclusion on this point was correct 

under at least two independent statutory provisions.

¶46 First, the City has the authority to condemn the air rights 

at issue here under section 72-10-413 of the Utah Code. That 

statute deals with political subdivisions that have certain 

connections to airports and specifically states, 

A political subdivision within which the property 

or nonconforming use is located or the political 

subdivision owning the airport or served by it may 

acquire, by purchase, grant, or condemnation in 

the manner provided by the law under which 

political subdivisions are authorized to acquire real 

property for public purposes, an air right, 

navigation easement, or other estate or interest in 

the property or nonconforming structure or use in 

question . . . .
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20190010-CA 25 2020 UT App 139

Utah Code Ann. § 72-10-413 (LexisNexis 2017) (emphasis 

added).

¶47 By its explicit terms, the statute provides a political 

subdivision that owns an airport with the power to condemn 

property related to its airport. Importantly, the statute does not 

limit the owning political subdivision’s condemnation power to 

those airports inside its geographic territory; rather, it merely 

requires ownership of an airport. Indeed, the statute 

differentiates between “[a] political subdivision within which the 

property or nonconforming use is located” and a “political 

subdivision owning the airport,” granting both of them 

condemnation authority. See id. Thus, the location of airports 

was on the legislature’s mind when it drafted the statute, and it 

chose not to limit geographically the condemnation power of 

political subdivisions that own airports. Another section of the 

Uniform Airports Act buttresses this point, saying, “A county

may not exercise the authority conferred in this section outside 

of its geographical limits except jointly with an adjoining 

county.” Id. § 72-10-203(2) (LexisNexis Supp. 2019) (emphasis 

added). By including only a county and not any of the other 

political subdivisions or authorities, this language further 

evinces the legislature’s intent to limit territorial power and its 

choice to limit such power only as it pertains to a county. Finally, 

the legislature explicitly contemplated extraterritorial airports by 

requiring those political subdivisions that own them to establish 

advisory boards. See generally id. § 72-10-203.5 (LexisNexis 2017) 

(describing advisory boards for “extraterritorial airports” 

defined as airports outside the boundary of a municipality and 

located in another). Because it is undisputed that the City owns 

TVA, the City can acquire the air rights it seeks through 

condemnation under section 72-10-413—if, of course, it follows 

the statutorily prescribed steps.

¶48 Additionally, the Utah Code otherwise grants the City 

authority to condemn the air rights at issue here. It contemplates 

a situation in which landowners and the described entities 

cannot come to an acquisition agreement and states in full: 
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20190010-CA 26 2020 UT App 139

(1) Private property needed by the department or a 

county, municipality, or airport authority for an 

airport or landing field or for the expansion of an 

airport or landing field may be acquired by grant, 

purchase, lease, or other means if the department 

or the political subdivision is able to agree with the 

owners of the property on the terms of acquisition.

(2) If no agreement can be reached, the private property 

may be obtained by condemnation in the manner 

provided for the state or a political subdivision to 

acquire real property for public purposes.

Utah Code Ann. § 72-10-205 (LexisNexis 2017) (emphasis 

added). Here, the City sought but could not agree with Owners

on an acquisition of the air rights, and therefore subsection two 

of the statute specifically empowered the City to obtain the air 

rights by way of condemnation. See id.; see also id. § 72-10-209 

(LexisNexis Supp. 2019) (providing condemnation power to 

municipalities with airports to “acquire the air rights over 

private property necessary to [e]nsure safe approaches to the 

landing areas of the airports.”).

10

¶49 Finally, these statutes fall under the last category of 

eminent domain canons—grants of eminent domain power for a 

clear and explicit purpose—which are construed liberally. See 

Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 16 n.14, 267 

P.3d 863; Monetaire Mining Co. v. Columbus Rexall Consol. Mines 

Co., 174 P. 172, 175 (Utah 1918). The purpose here is tending to 

airports. Thus, if there were any ambiguity, it would need to be 

read in furtherance of extraterritorial power.

 

10. The parties also dispute whether Utah Code section 10-8-2 

grants the City extraterritorial condemnation power here. But we 

do not decide whether it does because of these other statutory 

grants of power.
Salt Lake City v. Kunz

20190010-CA 27 2020 UT App 139

¶50 In sum, these statutory provisions unambiguously 

provide the City with extraterritorial eminent domain power in 

this case. Monarrez v. Utah Dep’t. of Trans., 2014 UT App 219, 

¶ 16, 335 P.3d 913 (“A determination that a statute’s plain 

language unambiguously informs the public of its meaning 

generally ends the inquiry about a statute’s interpretation.”).

¶51 Nevertheless, Owners make an intra-textual argument in 

response. They argue that these statutes require “additional, 

independent authority, such as the general condemnation 

authority” for the City to condemn their property because the

statutes include the phrase “in the manner provided.” Utah 

Code Ann. §§ 72-10-205, -413. We disagree. We read that phrase 

as referring to procedure, not authority. Cf. Salt Lake City Corp. v. 

Evans Dev. Group, LLC, 2016 UT 15, ¶ 23, 369 P.3d 1263 

(“[A]lthough a property exchange may not be altogether 

prohibited by our eminent domain statutes, it may not be 

accomplished in the manner attempted here.” (emphasis 

added)); see also Manner, Dictionary.com, https://www.dictionary

.com/browse/manner#:~:text=noun,the%20manners%20of%20her

%20time [https://perma.cc/HZA9-R7YX] (“[A] way of doing, 

being done, or happening; mode of action occurrence, etc.”); 

Utah Code Ann. § 68-3-11 (LexisNexis 2017) (“Words and 

phrases are to be construed according to the context and the 

approved usage of the language . . . .”). And this case is a perfect 

example of how the City could have the authority to condemn 

the property but failed to do so in a procedurally proper way—

i.e., in the manner provided by law.

11

 

11. Reading these statutes as requiring an independent grant of 

authority would render them greatly superfluous, which is a 

result we seek to avoid. See Turner v. Staker & Parson Cos., 2012 

UT 30, ¶ 12, 284 P.3d 600 (“Wherever possible, we give effect to 

every word of a statute, avoiding any interpretation which 

renders parts or words in a statute inoperative or superfluous.” 

(cleaned up)); Antonin Scalia & Bryan A. Garner, Reading Law: 

(continued...)
Salt Lake City v. Kunz

20190010-CA 28 2020 UT App 139

¶52 Owners also argue that the legislature’s amendment of 

section 72-10-203 limited extraterritorial condemnation power to 

joint and adjoining counties. Owners point out that this 

provision used to say “either within or without their 

geographical limit,” see Utah Code Ann. § 72-10-203 (Michie

1994), but was later amended to state that authority may not be 

exercised “outside of its geographical limits except jointly with 

an adjoining county,” see id. § 72-10-203(2) (LexisNexis Supp. 

2019). But this argument misses the mark. To start, the section

relates to operations of currently owned property rights, not 

rights the government entity would acquire through eminent 

domain. See id. § 72-10-203(1). Moreover, the previous language 

was superfluous because the other sections already provide the 

power to condemn extraterritorial property by their own terms.

See id. §§ 72-10-205, -413 (LexisNexis 2017).

¶53 Finally, this argument overlooks two key phrases. First,

the statute says “the authority conferred in this section,” which 

clarifies that the following restriction of geographical limits or 

joint ventures therein applies only to the actions taken under 

section 72-10-203. See id. § 72-10-203(2) (LexisNexis Supp. 2019). 

Again, that authority relates to currently owned property, not

other actions taken under other sections of the Utah Code. 

Second, as mentioned, the statute focuses on counties, stating 

that a “county may not exercise the authority conferred in this 

section outside of its geographical limits except jointly with an 

 

(...continued)

The Interpretation of Legal Texts 176 (“If a provision is susceptible 

of (1) a meaning that gives it an effect already achieved by 

another provision, or that deprives another provision of all 

independent effect, and (2) another meaning that leaves both 

provisions with some independent operation, the latter should 

be preferred.”). Indeed, why would the legislature enact such 

statutes purporting to provide specific condemnation authority 

by their terms, only to require the government entity to search 

for authority elsewhere?
Salt Lake City v. Kunz

20190010-CA 29 2020 UT App 139

adjoining county,” id., and not on any other political 

subdivisions or authorities. Once more, this evinces the 

legislature’s intent to limit territorial power and its choice to 

limit the power of only a county. Thus, section 72-10-203 does 

not help Owners’ cause.

¶54 In sum, we affirm the district court’s ruling that the City 

did not exceed its extraterritorial power to condemn the 

property at issue in this case. The City remains able to condemn 

the air rights—or at least no court has ruled the City cannot. 

Accordingly, we also affirm the district court’s denial of Owners’ 

request for litigation fees and costs under the cited federal laws.

CONCLUSION

¶55 We affirm the district court’s dismissal of this case under 

section 78B-6-504(2)(c) of the Utah Code. In doing so, we reject 

the City’s argument that Owners’ statement related to the 2009 

partial summary judgment motion was a conclusive admission

for purposes other than the then-pending motions. We also reject 

the City’s argument that the court erred in how it viewed that 

prior ruling. We disagree with the City on its arguments related 

to section 78B-6-504(2)(c). That statute must be strictly followed 

and requires no proof of prejudice. And we reject the City’s

argument that the court erred by not allowing the City to amend 

its complaint, as any amendment would have been futile. As to 

the issues in Owners’ cross-appeal that we reach, we affirm the 

district court’s denial of litigation fees and costs to Owners, for 

reasons including the associated legal conclusion that the City 

can exercise extraterritorial eminent domain power.

¶56 Affirmed.