2015 UT App 177

THE UTAH COURT OF APPEALS

DAVID FULLER AND RUTH M. FULLER,

Plaintiffs and Appellants,

v.

SPRINGVILLE CITY,

Defendant and Appellee.

Memorandum Decision

No. 20140433-CA

Filed July 16, 2015

Fourth District Court, Provo Department

The Honorable Claudia Laycock

No. 110400724

David Fuller and Ruth M. Fuller, Appellants Pro Se

Jody K. Burnett and Robert C. Keller, Attorneys

for Appellee

JUDGE MICHELE M. CHRISTIANSEN authored this Memorandum 

Decision, in which JUDGES GREGORY K. ORME and

STEPHEN L. ROTH concurred.

CHRISTIANSEN, Judge:

¶1 David and Ruth M. Fuller appeal from the district court’s 

orders granting summary judgment in favor of Springville City 

and dismissing the Fullers’ claims. The Fullers sought review in 

the district court of the Springville City Board of Adjustment’s

decision denying their request for approval of a nonconforming 

use. The Fullers argue that the Board of Adjustment’s 

application of Springville City’s zoning ordinances pertaining to

single-family and multifamily-residential uses resulted in an 

unconstitutional taking of their property. For the reasons stated 

below, we affirm the district court’s dismissal of the Fuller’s 

claims.
Fuller v. Springville City

20140433-CA 2 2015 UT App 177

¶2 The Fullers’ property is situated in an area of Springville 

City zoned solely for single-family use. The Fullers maintain a 

basement apartment in their residence and utilize their home as 

a multifamily dwelling. The Fullers claim that they have 

maintained this multifamily dwelling for many years. When 

Springville City learned of the basement apartment, however, 

the city notified the Fullers that such use violated the zoning 

laws and needed to stop. 

¶3 The Fullers then applied for a certificate of 

nonconformity, claiming that their basement apartment qualified 

as a preexisting nonconforming use. Springville City’s 

community-development director (the Director) denied their

application and concluded that the Fullers had failed to prove 

that their basement apartment ‚could have [ever] been legal 

under the zoning ordinances in place since the house was 

constructed‛ and that the Fullers’ use therefore had not been

‚legally established‛ as required to demonstrate a 

nonconforming use under both state statute and Springville City 

ordinance. The Fullers appealed that decision to the Springville 

City Board of Adjustment (the Board), which upheld the denial

of the Fullers’ application for a certificate of nonconformity. 

Thereafter, the Fullers filed a complaint in the Fourth District 

Court appealing the Board’s decision.

¶4 In their complaint, the Fullers asserted a number of 

claims, alleging ‚tortuous bad faith failure to investigate and 

resolve nonconforming use certificate which may arise out of 

implementation of previous settlement agreement,‛ ‚bad faith 

denial of request for non-conformity,‛ ‚abuse of process,‛ and 

‚breach of expressed agreement to good faith negotiation.‛ The 

Fullers sought a declaratory judgment that the Board’s ‚decision 

denying request for non-conformity is arbitrary, capricious, and 
Fuller v. Springville City

20140433-CA 3 2015 UT App 177

against the substantial weight of the evidence‛ and that 

Springville City’s zoning ordinance was ‚null and void.‛1

¶5 Springville City filed a motion for partial summary 

judgment ‚seeking dismissal of all of the Fullers’ claims or 

theories other than a claim which might appropriately constitute 

a Petition for Review of the *Board’s] decision.‛ At the hearing 

on the motion, the court orally granted Springville City’s motion

except as to that portion of the Fullers’ complaint that the court 

determined could be construed as a petition for review of the 

Board’s decision. The district court requested additional briefing 

from the parties on whether the Fullers could bring a 

constitutional challenge to Springville City’s historical zoning 

ordinances based on the Utah Supreme Court’s holding in 

Gillmor v. Summit County, 2010 UT 69, 246 P.3d 102.

¶6 Before the district court entered a final ruling on 

Springville City’s motion for summary judgment, the parties 

stipulated to a stay of the district court case and a remand to the

city for ‚further proceedings and consideration of evidence by 

[the Director]‛ regarding ‚whether and to what extent *the 

Fullers] can prove the nonconforming use of their property as a 

two-family dwelling was ever lawfully and legally established in 

the first instance.‛ After additional consideration, the Director 

again denied the Fullers’ application. The Director found that the 

lot on which the Fullers’ home was constructed was not of 

sufficient size to have ever allowed multifamily use in the 

zoning district where it was located. Thus, the Fullers could not 

demonstrate that use of their property as a multifamily dwelling 

had ever been legally established. The Fullers requested 

 

1. To the extent the Fullers raised other allegations and requests 

for relief in their complaint, they are not pertinent to this appeal 

and we do not address them.
Fuller v. Springville City

20140433-CA 4 2015 UT App 177

reconsideration by the Director and requested additional time to 

conduct further research and present additional arguments. The 

Director denied the Fullers’ requests and affirmed his previous 

decision.

¶7 The Fullers again appealed to the Board. The Board 

upheld the Director’s decision based on ‚a lack of evidence 

presented to [the] Board that when the use was originally 

established that it conformed with the applicable zoning 

ordinance either under the Utah County zoning ordinance or 

Springville City zoning ordinance and that, for that reason 

there’s been a lack of evidence showing that it was legal in the 

first instance.‛ The Fullers then amended their original 

complaint in the district court case, seeking judicial review of the 

Board’s final decision. 

¶8 Subsequently, the district court held another hearing on 

Springville City’s motion for summary judgment. After the 

hearing, the district court entered a written order memorializing 

its grant of summary judgment to Springville City on all of the 

Fullers’ claims except their claim for review of the Board’s 

decision. The district court also ordered that ‚*s+olely in the 

context and for the purposes of the Fullers’ remaining Petition 

for Review claim,‛ the Fullers could challenge the facial validity 

of Springville City’s zoning ordinances. The district court 

allowed the Fullers to file an amended complaint to ‚describ[e] 

the basis for their claim that the *Board’s+ decision on their 

nonconforming use application was arbitrary, capricious or 

illegal‛ and to clarify the Fullers’ constitutional challenges to 

Springville City’s ordinances. 

¶9 Springville City then filed a motion for summary 

judgment on the Fullers’ claim regarding their petition for 

review of the Board’s decision. The district court granted 

summary judgment in favor of Springville City and affirmed the 
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20140433-CA 5 2015 UT App 177

Board’s decision denying the Fullers’ application for a certificate 

of nonconformity. 

¶10 Several months later, Springville City filed a final motion 

for summary judgment seeking to dismiss the Fullers’ remaining 

constitutional claims. The district court granted the motion and 

dismissed ‚the Fullers’ claims against the City . . . in their 

entirety, with prejudice and on the merits.‛ The Fullers appeal.

¶11 This case involves a challenge to a land use authority’s 

decision to deny an application for a nonconforming use. We 

review the district court’s judgment ‚as if we were reviewing the 

land use authority’s decision directly, and we afford no 

deference to the district court’s decision.‛ Pen & Ink, LLC v. 

Alpine City, 2010 UT App 203, ¶ 16, 238 P.3d 63 (citation and 

internal quotation marks omitted).

¶12 The Fullers first argue that application of the zoning 

ordinances to prohibit their keeping a basement apartment 

constitutes an unconstitutional taking of their property. 

However, the Fullers have failed to demonstrate that their

unconstitutional takings claim was preserved below, as they are 

required to do by our rules of appellate procedure. An 

appellant’s brief must include ‚citation to the record showing 

that the issue was preserved in the [district] court; or . . . a 

statement of grounds for seeking review of an issue not 

preserved in the [district] court.‛ Utah R. App. P. 24(a)(5)(A), (B). 

We generally will not reach an issue if the appellant fails to 

establish that it was preserved. See Florez v. Schindler Elevator 

Corp., 2010 UT App 254, ¶ 32, 240 P.3d 107. The Fullers cite to 

instances in the record where they made vague assertions about 

the ordinances’ constitutionality, but none of these record 

citations demonstrate that a takings argument was ever 

presented to the Board or the district court. Because the Fullers 

have failed to show that this argument was preserved below, we 
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20140433-CA 6 2015 UT App 177

decline to address it. See Holladay v. Storey, 2013 UT App 158, 

¶ 34, 307 P.3d 584.

¶13 Next, the Fullers argue that the district court erred by 

applying the 1997 version of the Utah Code governing boards of 

adjustment rather than ‚the laws of municipal annexation as 

they existed in 1975.‛ According to the Fullers, the issue can be 

characterized in this way: ‚[C]an the Court properly use 

Municipal Law as it exists today to determine the legality of the 

use? Or should the Court have used State Law as it existed at the 

time of annexation [by Springville City] to determine the legality 

of the enforcement?‛ Though the Fullers claim to challenge the 

district court’s decision, we must review the land use authority’s 

decision directly. See Pen & Ink, 2010 UT App 203, ¶ 16. Thus, we 

understand the Fullers’ argument to mean that the Board should 

have applied ‚the 1953 version‛ of the Utah Code governing 

boards of adjustment—the version of the statute in effect at the 

time Springville City annexed the Fullers’ property2—because 

the Board interpreted zoning ordinances in place ‚since before 

1960‛ in determining the legality of the property’s use as a 

component of the nonconforming-use determination.

¶14 This argument is also unpreserved because the Fullers did 

not raise to the Board the issue of which version of the law 

applies to their claims. ‚Utah law requires parties to preserve 

arguments for appellate review by raising them first in the 

forum below—be it a trial court or an administrative tribunal.‛ 

 

2. The Fullers repeatedly reference ‚the 1953 version‛ of section 

10-9-6 of the Utah Code. That statute was not amended between 

1953 and Springville City’s annexation of the area containing the 

Fullers’ property in 1975. We therefore understand all of the 

Fullers’ references to ‚the 1953 version‛ of the law to mean the 

same version in effect at the time of the annexation in 1975. See

Utah Code Ann. § 10-9-6 (Allen Smith Co. 1973). 
Fuller v. Springville City

20140433-CA 7 2015 UT App 177

Columbia HCA v. Labor Comm’n, 2011 UT App 210, ¶ 6, 258 P.3d 

640. ‚‘*I+ssues not raised before administrative agencies are *not 

preserved and are+ not subject to judicial review.’‛ Carlsen v. 

Board of Adjustment of Smithfield, 2012 UT App 260, ¶ 9, 287 P.3d 

440 (alterations in original) (quoting Frito-Lay v. Labor Comm’n, 

2009 UT 71, ¶ 32, 222 P.3d 55); see also Patterson v. Utah County 

Bd. of Adjustment, 893 P.2d 602, 603 (Utah Ct. App. 1995) 

(explaining that when ‚the district court’s review of the 

*administrative agency’s+ decision was limited to a review of the 

*agency’s+ record,‛ ‚we review *the administrative agency’s+ 

decision as if the appeal had come directly from the agency‛).

Though the Fullers presented this argument to the district court, 

the Fullers have failed to demonstrate that they originally 

presented this argument to the Board. It is therefore 

unpreserved, and we decline to address it. See Carlsen, 2012 UT 

App 260, ¶ 9.

¶15 Next, the Fullers appear to challenge the merits of the 

Board’s denial of their application for a nonconforming use. The 

Fullers also argue, based upon their reading of the 1953 version 

of the Utah statute outlining the creation of boards of adjustment

and their designated powers, that the Board deprived the Fullers

of the opportunity to present evidence supporting their claim 

that ‚the use *of their nonconforming basement apartment+ 

promoted the public welfare.‛ The Fullers state, ‚In 1953, the 

zoning authority [could] only deprive the owner of property of 

its use to which it was lawfully devoted prior to the enactment of 

the ordinance if the parties have had the opportunity to present 

evidence as to the welfare of the public.‛ (Emphasis added.)

¶16 Both in 2011 and 2013, the Board denied the Fullers’ 

application for a nonconforming use because the Fullers failed to 

prove that their multifamily residence was ever legally 

established. The Board affirmed the Director’s findings that the 

lot on which the Fullers’ home was constructed was not of 

sufficient size to have ever legally permitted multifamily use and 
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20140433-CA 8 2015 UT App 177

was not located in a zoning district that allowed multifamily 

use.3

¶17 Utah Code section 10-9a-801 provides the judicial 

standard of review of a land use authority’s decision: ‚The 

courts shall: (i) presume that a decision, ordinance, or regulation 

made under the authority of this chapter is valid; and (ii) 

determine only whether or not the decision, ordinance, or 

regulation is arbitrary, capricious, or illegal.‛ Utah Code Ann. 

§ 10-9a-801(3)(a) (LexisNexis 2007). Thus, ‚*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 

 

3. Despite the Fullers’ arguments that the burden should fall on 

Springville City to prove illegality of the use and the existence of 

ordinances restricting the use, Utah’s statute governing 

nonconforming use explicitly states, ‚Unless the municipality 

establishes, by ordinance, a uniform presumption of legal 

existence for nonconforming uses, the property owner shall have 

the burden of establishing the legal existence of a noncomplying 

structure or nonconforming use.‛ Utah Code Ann. 

§ 10-9a-511(4)(a) (LexisNexis Supp. 2010). Springville City code 

section 11-3-207 also places the burden on the land owner:

If a determination of the nonconforming status of a 

property is desired, the owner . . . shall submit a 

completed application for a Certificate of 

Nonconformity with the Community Development 

Department. In all cases, the property owner shall 

have the burden of proving by a preponderance of 

evidence that a building [or] . . . use . . . which does 

not conform to the Provisions of this Title, 

complied with the applicable ordinance 

requirements in effect at the time the current 

circumstances were originally created. 
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20140433-CA 9 2015 UT App 177

arbitrary, capricious, or illegal.‛ Id. § 10-9a-801(3)(c); see also

Xanthos v. Board of Adjustment of Salt Lake City, 685 P.2d 1032, 

1034–35 (Utah 1984) (reviewing a board of adjustment decision 

as an administrative act and employing substantial-evidence 

standard). Substantial evidence is ‚that quantum and quality of 

relevant evidence that is adequate to convince a reasonable mind 

to support a conclusion.‛ Bradley v. Payson City Corp., 2003 UT 

16, ¶ 15, 70 P.3d 47 (citation and internal quotation marks 

omitted).

¶18 Here, the Fullers have failed to show that the Board’s 

decision was arbitrary, capricious, or illegal. The Board denied 

the Fullers’ application for a nonconforming use because the 

Fullers failed to prove that their multifamily residence was ever 

legally established. On appeal, the Fullers point to no evidence 

in the record to demonstrate that their use of their residence as a 

multifamily apartment was ever legally established and, thus,

that the Board’s decision was arbitrary, capricious, or 

unsupported by substantial evidence. Even if we were to assume 

that the 1953 statute the Fullers rely on was applicable to the 

Board’s determination here, the Fullers have failed to 

demonstrate any error in the Board’s finding that their use of 

their property as a multifamily apartment was never ‚lawfully 

devoted.‛ See Utah Code Ann. § 10-9-6 (Allen Smith Co. 1973). 

We therefore need not decide whether the Fullers were deprived 

of the ‚opportunity to present evidence as to the welfare of the 

public,‛ because the Board’s determination that their property 

was never ‚lawfully devoted‛ to a nonconforming use is fatal to 

the Fullers’ claim. See id.

¶19 All of the other issues raised by the Fullers are

inadequately briefed. ‚It is well established that Utah appellate 

courts will not consider claims that are inadequately briefed.‛ 

State v. Garner, 2002 UT App 234, ¶ 8, 52 P.3d 467. ‚An 

adequately briefed argument must provide meaningful legal 

analysis.‛ West Jordan City v. Goodman, 2006 UT 27, ¶ 29, 135 P.3d 
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20140433-CA 10 2015 UT App 177

874 (citation and internal quotation marks omitted). ‚A brief 

must go beyond providing conclusory statements and fully 

identify, analyze, and cite its legal arguments.‛ Id. (citation and 

internal quotation marks omitted). Rule 24 of the Utah Rules of 

Appellate Procedure requires that a brief include ‚citation*s+ to 

the record,‛ Utah R. App. P. 24(a)(5)(A), and an argument that 

‚contain[s] the contentions and reasons of the appellant 

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

record relied on,‛ id. R. 24(a)(9). ‚Rule 24(a)(9) requires not just 

bald citation to authority but development of that authority and 

reasoned analysis based on that authority.‛ State v. Thomas, 961 

P.2d 299, 305 (Utah 1998). If an appellant does not clearly 

identify and analyze the issues, we will not address them. We 

address only those issues that are properly identified, clearly 

preserved, and adequately supported.4

 

4. For example, the Fullers state in their brief, 

[W]ith respect to the basement apartment, 

enforcement of the annexation and subsequent 

zoning ordinances would be invalid and violative 

of the equal protection and due processes clauses 

of both the state and federal constitutions since it 

placed upon the property owners the unreasonable 

burden of furnishing detailed records which had 

been lost or destroyed by the County and/or the 

City.

The Fullers fail to cite any authority or provide any legal 

analysis to support their equal protection and due process 

claims. ‚There is no reasoned analysis or factual development 

supporting [their] legal claim[s,] . . . thus dump[ing] the burden 

of argument and research on this court.‛ See Spencer v. Pleasant 

View City, 2003 UT App 379, ¶ 21, 80 P.3d 546 (third alteration in 

original) (citation and internal quotation marks omitted).
Fuller v. Springville City

20140433-CA 11 2015 UT App 177

¶20 We acknowledge that the Fullers have pursued their 

appeal without counsel and are entitled to ‚every consideration 

that may reasonably be indulged.‛ Nelson v. Jacobsen, 669 P.2d 

1207, 1213 (Utah 1983) (citation and internal quotation marks 

omitted). However, as a general rule, ‚[parties] who [represent

themselves] will be held to the same standard of knowledge and 

practice as any qualified member of the bar.‛ Allen v. Friel, 2008 

UT 56, ¶ 11, 194 P.3d 903 (citation and internal quotation marks 

omitted). Consequently, ‚[r]easonable considerations do not 

include . . . attempt[ing] to redress the ongoing consequences of 

the party’s decision to function in a capacity for which he is not 

trained.‛ Id. Here, the Fullers’ brief simply provides too little 

information for this court to analyze any other issues they

attempt to present for review.

¶21 Based on the record before us, we conclude that the 

Fullers have not demonstrated that the Board’s decision was 

arbitrary, capricious, or illegal. Accordingly, we affirm the 

district court’s grant of summary judgment and dismissal of the 

Fullers’ claims.