2013 UT App 121

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### T HE 

### U TAH 

### C OURT OF 

### A PPEALS

S USAN D. J OHNSON

, C HRIS L. J OHNSON

, C HRISTINA G RANATH

, AND

L ONNIE C ASSIDY V ERHAAL

, Plaintiffs and Appellants,

v.

W EBER C OUNTY AND G REEN V ALLEY A CADEMY

, Defendants and Appellees.

Opinion

No. 20120368

‐ CA

Filed May 16, 2013

Second District, Ogden Department

The Honorable Scott M. Hadley

No. 110902718

John M. Webster, Attorney for Appellants

Bruce R. Baird, Attorney for Appellee Green Valley

Academy

Christopher F. Allred, Attorney for Appellee

Weber County

J UDGE J AMES Z. D AVIS authored this Opinion, in which J UDGES

G REGORY K. O RME and C AROLYN B. M C H UGH concurred.

DAVIS, Judge:

¶1 Susan D. Johnson, Chris L. Johnson, Christina Granath, and

Lonnie Cassidy Verhaal (the Residents) appeal the grant of

summary judgment in favor of Weber County (the County). We

affirm.

BACKGROUND

¶2 This is an appeal from the district court’s review of the

Weber County Board of Adjustment’s (the BOA) decision. TheJohnson v. Weber County

20120368

‐ CA 2013 UT App 121 2 Green Valley Academy Private Education Institution (Green

Valley) submitted a design review application to the Ogden Valley

Planning Commission seeking to establish a “‘private, non

‐ public

specialty school serving students with specific needs in the areas of

learning, depression, anxiety, and pervasive developmental

problems,’” to be located within an “Agricultural Valley 3 (AV

‐ 3)

Zone” in Huntsville, Utah. Green Valley explained that its

educational program would be fully accredited and structured in

accordance with the guidelines for public high school graduation

and that “[t]he main activity” at the academy would be “educating

and instructing students (46.5 hours per week).” Green Valley

described the other services offered at the academy, such as

“[c]ounseling and therapy sessions” and on

‐ site lodging, as

“ancillary to the educational program.” The Planning Commission

approved the design review application, concluding that Green

Valley constitutes a “school” under the Weber County Zoning

Ordinance (the Ordinance) and is therefore a permitted use within

the proposed AV

‐ 3 Zone.

¶3 The Residents appealed the Planning Commission’s decision

to the BOA, arguing that the Planning Commission “failed to

support its decision to call [Green Valley’s] proposed use a school

with substantial evidence and illegally approved the use as a

school instead of as a residential treatment center according to the

strict requirements of the Zoning Ordinance.” The BOA disagreed

with the Residents and upheld the Planning Commission’s

approval of Green Valley’s design application.

¶4 The Residents then filed a Petition for Review and

Declaratory and Injunctive Relief with the district court, seeking de

novo review of the BOA’s determination. The Residents argued

that the BOA’s decision was illegal and arbitrary and capricious

because

[t]he County, the [Planning] Commission and the

[BOA] failed to consider each of the factors required

[by the Ordinance] for Design Review approval,Johnson v. Weber County

20120368

‐ CA 2013 UT App 121 3 made the approval final even though necessary

reports and third party approvals were lacking, and

evaluated only whether the Green Valley Academy

met the definition of a “school” as set forth in the

Uniform Land Use Ordinance of Weber County and

ignored other zoning requirements and limitations

including, but not limited to, the purpose and intent

of the AV

‐ 3 zone.

¶5 The district court denied the Residents’ petition and granted

Green Valley’s motion for summary judgment, which was joined

by Weber County. The Residents now appeal.

ISSUE AND STANDARD OF REVIEW

¶6 The Residents argue that the district court erred in granting

Green Valley’s motion for summary judgment. “We review the

district court’s grant of a motion for summary judgment for

correctness.” Overstock.com, Inc. v. SmartBargains, Inc.

, 2008 UT 55,

¶ 12, 192 P.3d 858.

ANALYSIS

¶7 The Residents contend that the BOA’s decision was

arbitrary, capricious, illegal, and not supported by substantial

evidence, thereby rendering summary judgment in favor of Green

Valley inappropriate. “A final decision of a land use authority or

an appeal authority is valid if the decision is supported by

substantial evidence in the record and is not arbitrary, capricious,

or illegal.” Utah Code Ann. § 17

‐ 27a

‐ 801(3)(c) (LexisNexis 2009). “A

determination of illegality requires a determination that the

decision, ordinance, or regulation violates a law, statute, or

ordinance in effect at the time the decision was made or the

ordinance or regulation adopted.” Id

. § 17

‐ 27a

‐ 801(3)(d).Johnson v. Weber County

20120368

‐ CA 2013 UT App 121 4 ¶8 The Residents contend that the BOA’s decision was illegal

and arbitrary and capricious because it was made in violation of

the Ordinance and was not supported by substantial evidence.

Though the Residents “concede that the instruction and education”

aspect of Green Valley “would, in fact, qualify as a school

. . . under

Weber County’s Ordinance and under the Crist [ v. Bishop

, 520 P.2d

196 (Utah 1974)] decision,” they argue that Green Valley

nonetheless fails to qualify as a school because its “residential

component

. . . [is] otherwise not” permitted in the AV

‐ 3 Zone. The

Residents assert that Green Valley’s main use is as a residence for

troubled youth and that by calling it a school, Green Valley

attempts to make “an end run around the [O]rdinance.” In other

words, the Residents argue that the school is not enough of a

school. We disagree.

¶9 The Ordinance defines a school as follows:

A public elementary or secondary school, charter,

seminary, parochial school, or private educational

institution having a curriculum similar to that

ordinarily given in grades one through twelve in the

public school system. The term “education

institution” for the purpose of this Ordinance does

not include post high school educational facilities.

Weber County, Utah, Zoning Ordinance, § 1

‐ 6, available at

http://www.co.weber.ut.us/mediawiki/index.php/General_Provi

sions_%26_Definitions (last visited May 13, 2013). The term

“schools” was also defined in Crist

, in which the supreme court

was asked to construe a zoning ordinance that did not define that

term. See Crist, 520 P.2d at 197. The Crist court noted “that it is not

the name used that determines the character of an institution[;]

. . . this is to be ascertained from what it actually consists of and its

method of operation.” Id

. The court interpreted “schools” to mean,

“institutions for education and training[, t]he requisites of [which]

. . . are: some physical facility, teachers, a curriculum for study orJohnson v. Weber County

20120368

‐ CA 2013 UT App 121 5 training, and students who are the objective thereof.” Id

. at 198–99

(footnote omitted).

¶10 The defendants in Crist argued that the plaintiffs’ facility

was not a school but a juvenile detention and correctional

institution in light of the facility’s mission to serve “maladjusted

boys with mental or emotional problems, who need detention and

control in connection with their education and training.” Id. at 197.

Specifically, the “maladjusted boys” would receive “residential

treatment with a therapeutically designed round

‐ the

‐ clock living

program including medical care, psychiatry, and professional

discipline,” i.e., the use of forcible restraints like chains and

manacles. Id. (internal quotation marks omitted). The supreme

court rejected the defendants’ argument and affirmed the district

court’s characterization of the facility as a school, stating,

If the[ aforementioned] requisites are met, the status

of the institution is not changed because of variation

in methods of teaching or of training, or of discipline

or control. These are all present in greater or lesser

degree in practically all schools; and they may vary

greatly without preventing one from being properly

so characterized.

Id. at 199.

¶11 The Residents argue that reliance on Crist is inappropriate

because the Ordinance already contains a definition of “school”

and because the facts are distinguishable in that the facility at issue

in Crist was to be located in an existing building. Green Valley

contends that this case is basically a repeat of Crist in that the main

issue is what constitutes a school. To affirm its status as a school,

Green Valley, employing a familiar analogy, explains that all this

court needs to do is apply the “duck test,” meaning if its design

application “looks like a duck [and] it quacks like a duck, it’s a

school.” The duck here is the definition of “school,” and according

to Green Valley, the definition is the same in the Ordinance andJohnson v. Weber County

20120368

‐ CA 2013 UT App 121 6 Crist

. Thus, Green Valley concludes its argument by stating, “[A]ll

[we are] here to say is quack.”

¶12 We are not persuaded that the differences the Residents

focus on in Crist render that case inapplicable. Crist injected

common sense into the zoning ordinance at issue in that case by

recognizing that “school” is an umbrella term, each iteration of

which need not be specifically identified in an ordinance to be

encompassed within its meaning so long as the core “requisites are

met.” Id. at 198–99. Here, the parties do not dispute that those

requisites—that the proposed “private educational institution

hav[e] a curriculum similar to that ordinarily given in grades one

through twelve in the public school system,” and that it not be a

post high school educational institution—are met by Green Valley’s

proposal. Thus, Green Valley, like the facility in Crist

, is rightfully

characterized as a school even though it also offers on

‐ site housing

and therapeutic services.

¶13 The Residents next contend that specific language in other

parts of the Ordinance unequivocally prove that Green Valley’s

proposed school is not a permitted use in the AV

‐ 3 Zone.

Specifically, the Residents explain that because the Ordinance

states, “[U]ses not listed are not allowed,” see Weber County, Utah,

Zoning Ordinance, § 1

‐ 3, available at http://www.co.weber.ut.us/

mediawiki/index.php/General_Provisions_%26_Definitions (last

visited May 13, 2013), and boarding schools are not a listed use in

the AV

‐ 3 Zone, it necessarily follows that boarding schools, like

Green Valley, are not allowed in that zone, see generally id. § 5B

‐ 2 to

‐ 4. Further, they contend that because the Ordinance specifically

permits boarding schools in other zones, had such a use been

intended for the AV

‐ 3 Zone it would have been explicitly

enumerated in the Ordinance. The Residents also cite the stated

purpose of the AV

‐ 3 Zone—“to direct orderly low

‐ density

residential development in a continuing rural environment”—and

the fact that the residential uses permitted in the zone are limited

to single family homes and multi

‐ unit housing facilities with eight

or fewer residents, as additional proof that Green Valley’s housingJohnson v. Weber County

1. Furthermore, Green Valley does not explicitly state in its design

application that it seeks to provide on

‐ site housing for up to thirty

‐

six students and sixteen staff members; the Residents appear to

pull these numbers from Green Valley’s prior application that was

subsequently withdrawn.

20120368

‐ CA 2013 UT App 121 7 facility, which the Residents describe as a dormitory large enough

for thirty

‐ six students and up to sixteen staff members, does not

belong in the AV

‐ 3 Zone. See generally id. § 5B

‐ 1 to

‐ 4.

¶14 However, as stated above, because schools are a type of

permitted use in the AV

‐ 3 Zone and Green Valley meets the

definition of “school” provided in the Ordinance, the fact that

Green Valley also includes amenities and programs not specifically

identified in the Ordinance does not, under the facts and

circumstances of this case, mean it no longer qualifies as a school.

As observed in Crist

, despite variations in teaching style, discipline,

or amenities available for students, certain requisites are “present

in greater or lesser degree in practically all schools; and they may

vary greatly without preventing one from being properly so

characterized.” Crist v. Bishop

, 520 P.2d 196, 199 (Utah 1974). Thus,

while the Ordinance does contain the limitation that “uses not

listed are not allowed,” we do not interpret that to mean that every

type of school that is actually permitted by the Ordinance must be

enumerated, rather than evaluated on a case

‐ by

‐ case basis in

accordance with the definition provided in the Ordinance.

Additionally, the Residents’ assertion that boarding schools are

permitted in other zones is incorrect; no part of the Ordinance

specifically provides for boarding schools

, though boarding houses

are permitted in different zones. Likewise, the multi

‐ unit

residential facilities permitted in the AV

‐ 3 Zone are not all limited

to eight residents; convalescent or rest homes are a conditional use

allowed in the zone, and the Ordinance does not explicitly cap the

number of people such facilities can house. 1 In other words, it is not

clear how large the Green Valley housing facility would have to beJohnson v. Weber County

2. The Residents also assert that their due process rights were

violated on two different grounds. We do not address this issue

because it was not preserved. See Harper v. Evans

, 2008 UT App 165,

¶ 16, 185 P.3d 573 (“[I]n order to preserve an issue for appeal[,] the

issue must be presented to the trial court in such a way that the

trial court has an opportunity to rule on that issue.” (alterations in

original) (citation and internal quotation marks omitted)). We also

do not address the Residents’ contentions that Green Valley’s

primary use is as a residence, not a school, because it is not

adequately briefed. Their arguments on this point amount to a

series of conclusory statements; they do not offer any supporting

evidence or explanation as to how they reached this conclusion. See

Utah R. App. P. 24(a)(9) (“The argument shall contain the

contentions and reasons of the appellant with respect to the issues

presented

. . . with citations to the authorities, statutes, and parts of

the record relied on.”). Likewise, our inability to determine if the

Residents have even raised a challenge to the Planning

Commission’s adherence to Chapter 36

‐ 4 of the Ordinance is a

sufficient basis to determine that the issue was not adequately

briefed.

3. Because we do not consider the Residents’ appeal to be frivolous,

we deny Green Valley’s request for rule 33 sanctions. See generally

Utah R. App. P. 33(a) (“[I]f the court determines that a motion

made or appeal taken under these rules is either frivolous or for

delay, it shall award just damages, which may include single or

double costs,

. . . and/or reasonable attorney fees, to the prevailing

party.”); Porco v. Porco

, 752 P.2d 365, 369 (Utah Ct. App. 1988)

(“[S]anctions for frivolous appeals should only be applied in

(continued...)

20120368

‐ CA 2013 UT App 121 8 for the district court to necessarily conclude that it is not in keeping

with the purpose of the AV

‐ 3 Zone.

¶15 Accordingly, the BOA’s decision upholding the Planning

Commission’s grant of Green Valley’s design application was not

in contravention of the Ordinance. 2 Therefore, the district court

correctly granted summary judgment to Green Valley. We affirm. 3Johnson v. Weber County

3. (...continued)

egregious cases, lest there be an improper chilling of the right to

appeal erroneous lower court decisions. However, sanctions

should be imposed when an appeal is obviously without any merit

and has been taken with no reasonable likelihood of prevailing,

and results in delayed implementation of the judgment of the

lower court; increased costs of litigation; and dissipation of the

time and resources of the

. . . [c]ourt.” (citation and internal

quotation marks omitted)).

20120368

‐ CA 2013 UT App 121 9