When can parties recover attorney fees under the Property Rights Ombudsman Act? Checketts v. Providence City Explained

In Checketts v. Providence City, the Utah Court of Appeals addressed a question of first impression regarding attorney fee awards under the Property Rights Ombudsman Act. The court’s analysis provides important guidance for practitioners on when these fees can be recovered.

Background and Facts

The Checkettses operated a countertop manufacturing business on a lot separate from their residence, both located in a Single Family Traditional zone. After neighbors complained, Providence City determined the business violated local ordinances. The city had previously issued building permits and business licenses, but zoning changes made the business nonconforming. The Providence City Appeal Authority upheld the city’s violation notice, finding the business was never a permitted use without a conditional use permit and that zoning estoppel did not apply.

Key Legal Issues

The court addressed whether the district court properly: (1) upheld the Appeal Authority’s determination that the business was not a legal nonconforming use; (2) upheld the finding that zoning estoppel did not apply; and (3) awarded attorney fees under Utah Code section 13-43-206(12) of the Property Rights Ombudsman Act.

Court’s Analysis and Holding

The court affirmed the administrative decisions, finding substantial evidence supported the Appeal Authority’s conclusions that the business was never permitted in the zone without a conditional use permit and that the Checkettses failed to demonstrate exceptional circumstances for zoning estoppel. However, the court reversed the attorney fee award, holding that section 13-43-206(12) applies only to “cause of action in litigation” originating in district court, such as declaratory judgment actions, not to challenges of local land use authority decisions.

Practice Implications

This decision establishes that the Property Rights Ombudsman Act’s attorney fee provision has a narrow scope, limited to district court litigation rather than administrative appeals. The court’s interpretation emphasizes the Legislature’s specific word choice and the provision’s focus on impact fee disputes. Practitioners should be aware that challenges to local land use decisions through the administrative process do not trigger these fee-shifting provisions, even when an advisory opinion exists on the same issues.