Utah Court of Appeals
What evidence is required to establish nonconforming use status in Utah? LJMascaro v. Herriman City Explained
Summary
The Mascaros sought nonconforming use status for topsoil manufacturing and screening operations on property annexed by Herriman City in 2009. After administrative appeals, the district court granted summary judgment affirming the city’s denial of nonconforming use status.
Analysis
In LJMascaro v. Herriman City, the Utah Court of Appeals examined what evidence property owners must provide to establish nonconforming use status for land that doesn’t conform to current zoning regulations. The case demonstrates the challenging burden property owners face when seeking to continue pre-existing uses.
Background and Facts
The Mascaros claimed they had operated topsoil manufacturing and screening operations on their property since the 1950s. When Herriman City annexed the property in 2009, this use became a conditional use rather than a permitted use under city ordinances. The Mascaros sought nonconforming use status, arguing their operations legally existed before the current zoning designation. However, complications arose from a challenged annexation by Riverton City in the 1980s that was later declared “null and void.”
Key Legal Issues
The central issue was whether the Mascaros provided substantial evidence to prove their topsoil operations legally existed before Herriman City’s annexation. Under Utah Code section 10-9a-103, a nonconforming use must have: (1) legally existed before current land use designation; (2) been maintained continuously; and (3) not conform to current regulations due to subsequent ordinance changes.
Court’s Analysis and Holding
The court affirmed the denial, finding the Mascaros failed to provide substantial evidence of legal establishment. Despite submitting over 3,250 pages of documents, the Mascaros conceded they had no evidence “either conclusively proving or conclusively disproving” prior legal use. Business licenses referenced trucking and courier services, not topsoil manufacturing. A Salt Lake County councilmember’s letter stating the county had “likely” granted nonconforming use status was insufficient without identifying the specific nature of the approved use.
Practice Implications
This decision emphasizes that property owners seeking nonconforming use status must provide concrete documentary evidence, not just testimony or circumstantial evidence. The court applied the substantial evidence standard deferentially, refusing to reweigh evidence or substitute its judgment for the municipality’s. Practitioners should ensure clients maintain comprehensive records of permits, licenses, and governmental approvals that specifically authorize the contested use. Additionally, all factual and legal arguments must be preserved at the administrative level to avoid waiver on appeal.
Case Details
Case Name
LJMascaro v. Herriman City
Citation
2018 UT App 127
Court
Utah Court of Appeals
Case Number
No. 20160723-CA
Date Decided
June 21, 2018
Outcome
Affirmed
Holding
Property owners seeking nonconforming use status must provide substantial evidence that their use legally existed before current land use designation.
Standard of Review
Correctness for legal conclusions in granting summary judgment; substantial evidence for land use authority decisions
Practice Tip
When challenging land use authority decisions, preserve all factual and legal arguments at the administrative level, as failure to raise issues before the appeal authority can result in waiver on judicial review.
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