Utah Court of Appeals
Can a landowner's intent save an abandoned nonconforming use? Rogers v. West Valley City Explained
Summary
Edward Rogers appealed the West Valley City Board of Adjustment’s approval of Cleone Kirby’s nonconforming use of allowing horses on her property. Kirby had maintained horses on the property since 1958, but no horses were present from 2002 to 2004 due to fence removal. The Board approved the nonconforming use based on Kirby’s intent to continue the use.
Analysis
The Utah Court of Appeals addressed whether a landowner’s intent can prevent the abandonment of a nonconforming use under municipal zoning ordinances in Rogers v. West Valley City.
Background and Facts: Cleone Kirby’s family had maintained horses on their West Valley City property since 1958. However, between 2002 and 2004, no horses were kept on the property after neighboring apartment owner Edward Rogers removed a cedar fence that had contained the animals. When Kirby sought to resume keeping horses in 2004, she applied for a nonconforming use determination. The West Valley City Board of Adjustment approved her application, finding that she had not intended to abandon the animal use during the two-year gap.
Key Legal Issues: The central question was whether West Valley City Municipal Code Section 7-18-106(3) allows consideration of a landowner’s intent when determining if a nonconforming use has been abandoned. The ordinance stated that if a nonconforming use “is discontinued for a continuous period of more than one year it shall constitute an abandonment of the use.”
Court’s Analysis and Holding: The Court of Appeals reversed, emphasizing that the word “shall” in the ordinance is mandatory language that must be given its usual accepted meaning. The court rejected West Valley City’s argument for adopting a “rebuttable presumption” approach that would allow consideration of intent and equitable factors. The court noted that while the current Land Use Development and Management Act contains a rebuttable presumption standard, the former Act under which this case was decided did not.
Practice Implications: This decision demonstrates the importance of precise statutory language in zoning ordinances. When ordinances use mandatory terms like “shall,” courts will enforce them strictly without considering equitable factors or landowner intent. Practitioners should carefully review municipal code language and advise clients about the risks of discontinuing nonconforming uses, even temporarily. The decision also highlights how legislative changes in state law may not apply retroactively to cases decided under prior statutory frameworks.
Case Details
Case Name
Rogers v. West Valley City
Citation
2006 UT App 302
Court
Utah Court of Appeals
Case Number
Case No. 20050111-CA
Date Decided
July 20, 2006
Outcome
Reversed
Holding
Under West Valley City Municipal Code Section 7-18-106(3), a landowner’s intent is irrelevant in determining whether a nonconforming use has been abandoned when the use is discontinued for more than one year.
Standard of Review
The Board’s decision can only be considered arbitrary or capricious if not supported by substantial evidence
Practice Tip
When drafting or interpreting municipal zoning ordinances, carefully distinguish between mandatory language using ‘shall’ versus discretionary language that allows for consideration of intent or equitable factors.
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