Powell v. Town of Leeds

2026 UT App 140 THE UTAH COURT OF APPEALS LYNN POTTER AND DIANNA POWELL, Appellants and Cross-appellees, v. TOWN OF LEEDS, Appellee and Cross-appellant. Opinion No. 20230232-CA Filed September 11, 2026 Fifth District Court, St. George Department The Honorable Jay Winward The Honorable Eric A. Ludlow The Honorable Ryan E. Christensen The Honorable Eric R. Gentry Nos. 220500524, 220500654, and 230500194 Freyja Johnson, Rachel Phillips Ainscough, and Mikayla Irvin, Attorneys for Appellants and Cross-appellees H. Craig Hall, James C. Dunkelberger, Hyrum J. Bosserman, and KC Hooker, Attorneys for Appellee and Cross-appellant JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and JOHN D. LUTHY concurred. HARRIS, Judge: ¶1 Lynn Potter and Dianna Powell (Landowners) own a parcel of land (the Property) in Leeds, Utah. They want to develop it by adding a road, a house, and a commercial building. But the Property contains a slope greater than 30%, and the Town of Leeds (the Town) has an ordinance (the Hillside Ordinance) that, in most cases, prevents anyone from developing land with a slope  Potter v. Town of Leeds that steep. However, the Hillside Ordinance doesn’t apply to parcels that were subdivided before 1999, and Landowners contend that the Property falls into that category. ¶2 Over the course of the last seven years, Landowners have submitted two applications to the Town, each seeking permission to build on the Property, and the Town has denied both of them. Originally, the Town decided—after seeking an opinion from the Utah Office of the Property Rights Ombudsman (the Ombudsman)—to apply the Hillside Ordinance to the Property and determined that Landowners would be permitted to develop only a small part of it. And after that, the Town denied the second application on the basis that Landowners’ general request to build had already been fully considered and denied. ¶3 Three times, Landowners have filed petitions asking the district court to address the Town’s denials of their applications. Those cases were given three different case numbers and assigned to three different judges. And in all three cases, the courts dismissed Landowners’ petitions. The first one was dismissed for lack of subject-matter jurisdiction, after the court concluded that Landowners had failed to exhaust their administrative remedies. The second one was dismissed chiefly because the court concluded that it was identical to the first one, which had already been dismissed. The third one was dismissed for similar reasons. ¶4 The court in the second case awarded the Town attorney fees, ruling that the Town had substantially prevailed and that the case involved the same issue that had been the subject of the Ombudsman’s opinion. But the courts in the first and third cases declined to award fees to the Town. ¶5 Both sides now appeal various aspects of the three courts’ rulings, and after consolidating the three appeals, we consider the parties’ arguments together in this opinion. Landowners appeal the dismissal of the first and second cases, asserting (among other 20230232-CA 2 2026 UT App 140  Potter v. Town of Leeds things) that the first court had subject-matter jurisdiction and that the second application was materially different from the first one and should have been considered on its merits. Landowners also appeal the award of attorney fees to the Town in the second case. For its part, the Town cross-appeals the denial of its attorney fees requests in the first and third cases, and in addition it challenges the “without prejudice” status of the dismissal of the first case, asserting that the dismissal should have been with prejudice. ¶6 For the reasons discussed in this opinion, we affirm the first court’s dismissal of Landowners’ first petition for judicial review, but we remand the first case to the district court for the limited purpose of entering a dismissal with prejudice. And we affirm the courts’ decisions to deny the Town’s attorney fees requests in the first and third cases. Thus, the courts’ decisions in the first and third cases are affirmed in all respects, except for the dismissal status of the first case. ¶7 But we agree with Landowners that the court in the second case should have considered their petition on its merits, and we therefore reverse the dismissal of Landowners’ second petition for judicial review, as well as the court’s award of fees to the Town, and we remand the second case to the district court for further proceedings consistent with this opinion. BACKGROUND ¶8 In 2017, Landowners bought the Property, which is “an 11.94-acre parcel of undeveloped land” in Leeds, Utah. The Property contains slopes steeper than 30%. Landowners want to develop it by building a road, a house, and a commercial building. ¶9 Several years earlier, in 2008, the Town had passed the Hillside Ordinance, whose stated purpose was “to protect the health, safety, and general welfare of the residents of the Town of 20230232-CA 3 2026 UT App 140  Potter v. Town of Leeds Leeds by establishing procedures for the development of sensitive hillsides within the Town.” Leeds, Utah, Land Use Ordinance § 20.1. The “standards” set forth in the Hillside Ordinance were “intended to: 1) minimize adverse soils and slope instability; 2) decrease potential erosion; and 3) reduce the adverse [e]ffects of grading and cut and fill operations.” Id. The Hillside Ordinance was also “intended to preserve the natural character of hillsides and encourage development that is in harmony with the aesthetics and character of the Town.” Id. Significantly for present purposes, the Hillside Ordinance strictly prohibits “any development on land having a slope of thirty percent or more.” Id. § 20.2. But “[t]he requirements of [the Hillside Ordinance] shall not apply to developments or subdivisions that were approved prior to January 1, 1999.” Id. § 20.10. The First Application ¶10 In 2019, Landowners filed their first “Site Plan Review Application” (First Application). Through this application, Landowners sought permission “to develop both a single-home residence and a commercial building on the Property.” In the First Application, Landowners included “grading plans with proposed routes to both the proposed residence and commercial building.” ¶11 Landowners presented the First Application to the Town’s Planning Commission (the Planning Commission) in January 2020. At that meeting, Landowners explained their development plan; they acknowledged that part of the plan involved an area of the Property that contained a slope greater than 30%, but they asserted that their development plan had mitigated any concerns and should nevertheless be approved. After some debate about the particulars of Landowners’ grading plan, the Planning Commission approved Landowners’ request, with some conditions. The Planning Commission assumed that the Hillside Ordinance applied to the Property, and it did not explore whether 20230232-CA 4 2026 UT App 140  Potter v. Town of Leeds the Property might be exempt from the Hillside Ordinance because it had been subdivided prior to 1999. ¶12 About a week later, the matter was reviewed by the Leeds Town Council (the Council). After some discussion, the Council “tabled” the matter until its next meeting in order to, among other things, be able to better assess “whether the Hillside Ordinance applies” to the Property, or whether it was exempt because it had been subdivided prior to 1999. At that next meeting, about one month later, the Council took up the matter again. An attorney representing the Town offered his opinion that the Property had not been “either developed or subdivided” prior to 1999 and that the Hillside Ordinance therefore applied to the Property. Extensive debate and questioning ensued about whether the Property had indeed been subdivided prior to 1999, with Landowners asserting that it had been. But the Council did not take a vote on the question; that meeting ended with another request for more information from Landowners. In particular, the Town’s mayor told Landowners that they were free to “put [their reasoning] in a presentation” explaining why they believed the Town’s attorney’s opinion was “incorrect,” and he even stated that such a presentation “would be valuable” to the Council. A few minutes later, the mayor reiterated that Landowners should “put [their reasoning] in writing” and that the Council would “look to review that argument at a future meeting.” ¶13 In the meantime, in April 2020, the Town requested an advisory opinion from the Ombudsman as to whether the Property was “subject to” the Hillside Ordinance. Some ten months later, in February 2021, the Ombudsman issued a written opinion (the Advisory Opinion) on the matter. The Advisory Opinion noted that, prior to 1999, the Property “underwent Town proceedings to subdivide a developable lot . . . for purposes of a sale,” but it concluded that “there [was] a lack of evidence that the [Council] took action to give final approval of” any subdivision. Thus, the Advisory Opinion determined that “the Town’s 20230232-CA 5 2026 UT App 140  Potter v. Town of Leeds conclusion” not to exempt the Property from the Hillside Ordinance “satisfie[d] the substantial evidence standard for a land use decision” and was “appropriate and lawful.” But the Advisory Opinion also stated that it was “incumbent on” Landowners, “as the party asserting the deficiency in the record, to conclusively establish through other forms of relevant evidence that the approval was in fact given,” and it offered its view that “[u]nless such evidence is provided to fill in the gaps of a deficient record, a ‘reasonable mind could reach the same conclusion’” the Ombudsman apparently believed the Town had reached in determining that the Property should not be exempted from the reach of the Hillside Ordinance. ¶14 After receiving the Advisory Opinion, the Council again discussed Landowners’ First Application at a public meeting (the June 2021 Meeting). At that meeting, no discussion was had about the merits of the Advisory Opinion; indeed, no mention was made of it at all. In particular, no discussion was had about whether the Property had been subdivided prior to 1999. Instead, a lengthy discussion was had about whether the slopes on the Property really were over 30% and how engineers measure such things. Landowners contended that, depending on the manner in which the slope was measured, the steepest slopes on the Property were around 29%. The Property had three buildable sites, “labeled A, B, and C.” Ultimately, the Council determined that the engineering evidence indicated that some of the slopes on the Property did in fact exceed 30%. Immediately thereafter, a councilmember made a motion “to approve building” on “Site A”—a part of the Property that did not involve slopes over 30%— “because of the ordinance” and to clarify that “[t]here shall be no development” on the other portions of the Property where the slope was “over 30%.” During the post-motion discussion, that same councilmember stated that his “heart ha[d] been with” Landowners the entire way but because Landowners’ “own engineer” had acknowledged that some of the proposed 20230232-CA 6 2026 UT App 140  Potter v. Town of Leeds development would be on land that was “over 30%,” the Council’s “hands [were] tied” given the language of the Hillside Ordinance. The motion passed by a 3-2 vote, thus allowing development on Site A but not on other parts of the Property. After the motion passed, the Town’s mayor stated that “the basis of that decision was driven by the need to disturb greater than 30% slope to get to Sites B and C.” ¶15 Landowners took no action within the next thirty days to appeal the decision the Council made at the June 2021 Meeting. Instead, Landowners set about finding additional evidence to support their claim that the Property had indeed been subdivided prior to 1999. And in March 2022, nine months after the June 2021 Meeting, Landowners were successful in obtaining a sworn affidavit (the Affidavit) from a former member of the Council who had served from 1996 to 1997. The Affidavit stated that the Property had been “approved by the [Council] as a minor lot subdivision for the purpose of building a residence back in 1997.” And it indicated, as “further proof of the Town’s intent to create a minor lot subdivision and approve building on the parcel,” that “the Town consented to a zone change that would accommodate the building of a residence.” ¶16 With this new evidence in hand, Landowners asked for the matter to be put on the agenda at an upcoming meeting of the Planning Commission. After tabling it for one month, the Planning Commission took the matter up at its June 2022 meeting. Following a discussion, including of the Affidavit, one of the commissioners made a motion to “recognize that the [Property] [had been] properly subdivided before 1999 and is therefore not subject to the Hillside Ordinance.” That motion passed by a 4-1 vote, and the matter was sent on to the Council for consideration. ¶17 The Council, however, refused to put the matter on its meeting agenda. On June 7, 2022, an attorney representing the Town sent a letter (the June 2022 Letter) to Landowners stating 20230232-CA 7 2026 UT App 140  Potter v. Town of Leeds that the matter would “not be place[d] on the June 8, 2022 or subsequent [Council] agendas” because Landowners’ request was “the same request” that the Council “considered” at the June 2021 Meeting. The attorney explained that “[t]his matter [had] been fully discussed [and] reviewed, and a decision [had been] made on that date,” and “[t]he circumstances ha[d] not changed.” ¶18 A few days later, on June 16, Landowners filed an administrative appeal of the Council’s decision, but the Town “refuse[d] to process” that appeal because, among other reasons, the Town believed that Landowners’ appeal was untimely because Landowners needed to have timely appealed from the decision made at the June 2021 Meeting, at which point the Town believed the First Application had been originally denied in full. The First Lawsuit ¶19 Less than a month after receiving the June 2022 Letter, Landowners filed a petition for judicial review with the district court (the First Lawsuit). In the petition, Landowners complained that they had never received a substantive review of their First Application, because (in their view) the Council had failed to actually approve or deny it during the June 2021 Meeting and because the Council had later (in 2022) refused to put the matter back on its agenda for review of their new evidence, including the Affidavit. In their prayer for relief, Landowners asked the court to enter an order determining that the Property had been subdivided prior to 1999 and that it was therefore “exempt from the requirements” of the Hillside Ordinance. ¶20 The Town responded by filing a motion to dismiss the First Lawsuit. In that motion, it argued that the court did not have subject-matter jurisdiction over Landowners’ suit because Landowners had failed to exhaust their administrative remedies by not timely filing an administrative appeal from the Town’s decision at the June 2021 Meeting. The Town also asserted that, in 20230232-CA 8 2026 UT App 140  Potter v. Town of Leeds any event, Landowners had failed to state a claim upon which relief could be granted. And the Town asked the court to award it attorney fees under a statute concerning advisory opinions issued by the Ombudsman, which allows a court the option of awarding fees to a “substantially prevailing party” in a case in which “the same issue that [was] the subject of” an advisory opinion issued by the Ombudsman “is subsequently litigated” and the court resolves the issue “consistent with the advisory opinion.” See Utah Code § 13-43-206(12) (2021). 1 ¶21 In opposition, Landowners asserted that they had not failed to exhaust their administrative remedies because, in their view, their appellate clock had not started ticking until after the June 2022 Letter. As they saw it, the Council had not made any “appealable land use decision” at the June 2021 Meeting regarding the applicability of the Hillside Ordinance to the Property. Specifically, Landowners argued that “because the issue voted on” in the June 2021 Meeting concerned just the approval of development for Site A, that issue “was not the one requested in the [First] Application” and therefore the Council’s decision “could not constitute a final land use decision” regarding the First Application. In their memorandum, Landowners made no argument—even in the alternative—that the Council had issued multiple appealable land use decisions: one at the June 2021 Meeting and another in the June 2022 Letter. ¶22 The court held a hearing to consider the Town’s motion to dismiss. At that hearing, Landowners argued that even though the First Application had gone “before the [Council] multiple times,” the Council had never “consider[ed] any motion to . . . 1. This statute has been amended since the events at issue in this opinion occurred. We cite the version that was in effect at the time the Advisory Opinion was issued and the lawsuits were filed. 20230232-CA 9 2026 UT App 140  Potter v. Town of Leeds approve or deny [that] application.” And later, Landowners also asserted that the Council “did not deny” the First Application. ¶23 The district court granted the Town’s motion to dismiss, concluding that the court lacked subject-matter jurisdiction because Landowners had “failed to comply with the Town’s exhaustion requirements.” It determined that the Council had fully denied the First Application at the June 2021 Meeting, meaning that Landowners needed to have timely filed an administrative appeal from that decision, and that because they did not, they had not exhausted their administrative remedies. At the hearing on the motion, the Town had requested a dismissal with prejudice, arguing that the court had no subject-matter jurisdiction over Landowners’ petition and that Landowners had “waived [their] right” to seek relief in the district court “forever by failing to timely appeal the land use decision.” But the court dismissed Landowners’ petition “without prejudice,” reasoning that the case was in “such an early stage of the litigation.” And it denied the Town’s request for an award of attorney fees, noting in its oral ruling that the relevant statute used the word “may” and stating that it was “choosing not to award” attorney fees. The Second Application ¶24 In July 2022, a few weeks after receiving the June 2022 Letter and while the First Lawsuit was pending, Landowners filed a second “Site Plan Review Application” for “Sites B and C” (the Second Application). At the top of the Second Application’s cover page, Landowners had written “Grading plan,” and near the bottom of the page they included a note that read, “The Brown Consulting Engineering Plan is an overlay of the PV Engineering Plan; we want to apply both to the application to leave our most options open.” (Emphasis in original.) These notes had not been included on the First Application’s cover page. The Second Application also included an attachment—a “Rough Grading Plan”—that had not been previously included with the First 20230232-CA 10 2026 UT App 140  Potter v. Town of Leeds Application; that grading plan proposed different cut and fill amounts for the Property, as well as a new route for a road. 2 In all other respects, the attachments included with the Second Application were identical to those that had been included with the First Application. ¶25 In an email sent by the Town’s mayor to Landowners, the Town rejected the Second Application. In that email, the mayor stated simply that “the submitted plans . . . violate[d]” the Hillside Ordinance and that therefore the Town would “not consider[] them.” Three weeks later, Landowners filed an administrative appeal, but the Town rejected that appeal because it believed its contents had already been “considered in full,” given the Town’s conclusion that the proposal in the Second Application was “identical” to the proposal contained in the First Application. The Second Lawsuit ¶26 Landowners then filed another petition for judicial review (the Second Lawsuit). In that petition, Landowners asserted that the Town had failed to substantively review the Second Application and had improperly refused to consider Landowners’ administrative appeal. ¶27 The Town responded by filing a motion to dismiss the Second Lawsuit. In its motion, the Town made some of the same 2. The district court determined that the First Application and the Second Application were “identical,” offering its view that the two applications concerned “the same exact areas for development (Sites B and C) and the same exact route to get there.” But in our review, the “Rough Grading Plan” included with the Second Application shows a proposal for a road that was different from what was proposed in the First Application. Counsel for Landowners agreed with this interpretation during oral argument before this court. 20230232-CA 11 2026 UT App 140  Potter v. Town of Leeds arguments it had made in its motion to dismiss the First Lawsuit. But this time around, the Town also argued that Landowners could not “restart their administrative appeals clock by refiling an identical application.” And it contended that because, in its view, the First and Second Applications were identical, Landowners had no right to a “second separate review of an essentially identical application.” The Town also requested attorney fees pursuant to the same statute it had invoked in the First Lawsuit. See Utah Code § 13-43-206(12) (2021). ¶28 Landowners opposed the Town’s motion to dismiss. They first argued that the Second Application was not identical to the First Application because the two applications “differ[ed] in substance and purpose.” In particular, Landowners noted the differences in cover pages, grading plans, and road paths, and they explained that the duplicative attachments were meant to merely “serve as a reference.” They then repeated similar arguments made in their opposition to the motion to dismiss the First Lawsuit, including that their applications had never been “substantively reviewed.” ¶29 The court granted the Town’s motion to dismiss the Second Lawsuit. First, the court concluded that it “lack[ed] subject matter jurisdiction because” Landowners had “failed to timely exhaust their administrative remedies.” It held that the First Application and the Second Application requested the same land use decision and that because Landowners had failed to timely appeal the First Application after the June 2021 Meeting, their failure to exhaust administrative remedies regarding the First Application also doomed the Second Application. Further, the court held that Landowners’ filing of the Second Application did not start the time for appeal anew because it was “[d]uplicative” of the First Application. The court identified three differences between the First Application and Second Application, but it concluded that “[n]one of these distinctions [were] material.” 20230232-CA 12 2026 UT App 140  Potter v. Town of Leeds ¶30 The court also concluded that Landowners’ “claims in the Second [Lawsuit were] barred under the doctrine of issue preclusion.” It determined that the court in the First Lawsuit had “considered the same issues and arguments” that Landowners were attempting to raise in the Second Lawsuit. It identified six issues that it believed to be common to both the First Lawsuit and the Second Lawsuit: (i) the [Council] “unilaterally changed” the First Application, (ii) the [Council] failed to “substantively review” the First Application, (iii) the [Council] never “fully rejected” the First Application until [the June 2022 Letter] nearly a year later, (iv) the [Council] did not issue a “land use decision,” (v) [Landowners’] presentation in front of the Planning Commission [in June 2022] somehow restarted [Landowners’] time to appeal, and (vi) [Landowners] were not required to exhaust their administrative remedies because doing so would be futile. For similar reasons, the court concluded that Landowners also failed to state a claim. It determined that the First Application “was more than substantially reviewed” and that “nothing in [the] law” “entitle[s] a second separate review of an essentially identical application.” ¶31 Finally, the court awarded the Town its attorney fees for the Second Lawsuit. It stated that “[t]he entire purpose of the [ombudsman] advisory opinion statute is to dissuade parties from bringing their land use disputes formally in court.” It recognized that the Town had “spent significant time and resources briefing the issues before the [Ombudsman],” and it determined that, on review, Landowners were asking the court “to make the same determination” the Ombudsman had been asked to make—“that the Property was validly created by subdivision prior to January 20230232-CA 13 2026 UT App 140  Potter v. Town of Leeds 1, 1999” and “that the Property is exempt from the requirements of” the Hillside Ordinance. Thus, it awarded the Town its “fees and costs in defending its decision,” and it later quantified that award by ordering Landowners to pay the Town $48,618.84. The Third Lawsuit ¶32 While the Second Lawsuit was still being adjudicated, Landowners filed a “Complaint for Declaratory Judgment” (the Third Lawsuit). In the Third Lawsuit, Landowners again made arguments surrounding the procedural history of the First Application and the Second Application. The Town filed a motion to dismiss the Third Lawsuit. It requested attorney fees pursuant to the ombudsman advisory opinion statute, see Utah Code § 13- 43-206(12) (2021), and under Utah’s bad-faith attorney fees statute, see id. § 78B-5-825. The court ultimately granted the Town’s motion to dismiss the Third Lawsuit. Regarding attorney fees, however, the court denied the Town’s request, concluding that Landowners had not acted in bad faith. The court also declined to exercise its discretion to award fees pursuant to the ombudsman advisory opinion statute, noting that “there’s probably a basis” upon which it “could award” attorney fees pursuant to that statute but “[it wasn’t] going to.” ISSUES AND STANDARDS OF REVIEW ¶33 Both parties appeal various decisions of the courts in the three cases. First, Landowners challenge the order dismissing the First Lawsuit for lack of subject-matter jurisdiction. Were we to reach the merits of that question, we would review the district court’s decision for correctness. See McKell v. McKell, 2024 UT App 72, ¶ 18, 549 P.3d 654 (“Because a [district] court’s grant or denial of a motion to dismiss is a question of law, the standard of review is correctness.” (cleaned up)). But before addressing the merits of this challenge, we must address the Town’s assertion that 20230232-CA 14 2026 UT App 140  Potter v. Town of Leeds Landowners failed to preserve their specific legal theory for appellate review. “When a party fails to raise and argue an issue in the [district] court, it has failed to preserve the issue, and an appellate court will not typically reach that issue absent a valid exception to preservation.” State v. Johnson, 2017 UT 76, ¶ 15, 416 P.3d 443. As discussed below, we agree with the Town that Landowners failed to preserve their appellate theory for our review, and we therefore do not reach the merits of Landowners’ challenge to the order dismissing the First Lawsuit. ¶34 Regarding the dismissal of the First Lawsuit, the Town raises an issue on cross-appeal: it asserts that the dismissal should have been with prejudice. “A district court’s decision to dismiss with [or without] prejudice is reviewed for an abuse of discretion.” Rodriguez v. Crosby, 2024 UT App 7, ¶ 10, 543 P.3d 206 (cleaned up). ¶35 Next, Landowners challenge the order dismissing the Second Lawsuit. As already noted, we review this issue for correctness. See McKell, 2024 UT App 72, ¶ 18. ¶36 Finally, both Landowners and the Town bring challenges regarding attorney fees. Landowners challenge the court’s award, made pursuant to the ombudsman advisory opinion statute, of attorney fees in the Second Lawsuit. And the Town challenges the courts’ decisions, in the First and Third Lawsuits, not to award attorney fees pursuant to that same statute. “We review a district court’s decision to award attorney fees for an abuse of discretion, but [we] review its underlying legal conclusions for correctness.” Miner v. Miner, 2025 UT App 64, ¶ 13, 571 P.3d 788 (cleaned up), cert. denied, 574 P.3d 526 (Utah 2025). To the extent that the district court’s analysis involved statutory interpretation, we review the court’s conclusions for correctness. See State v. Thurman, 2022 UT 16, ¶ 13, 508 P.3d 128 (“We review questions of statutory 20230232-CA 15 2026 UT App 140  Potter v. Town of Leeds interpretation for correctness, affording no deference to the district court’s legal conclusions.” (cleaned up)). 3 3. The Town also asserts two other arguments that we reject. First, it argues that “even if the Town somehow failed to comply with its ordinances, Landowners failed to demonstrate prejudice.” It contends that Landowners did not meet their burden to prove that there would have been a reasonable likelihood of a different outcome if the Council had reviewed their appeal with the Affidavit. We reject the Town’s argument because there is evidence supporting a reasonable likelihood of a different result—the Planning Commission already considered the Affidavit, found it persuasive, and decided that the Hillside Ordinance didn’t apply because the Property had been subdivided prior to 1999. Second, the Town argues that “Landowners’ failure to challenge the decision of the district court in the Third Lawsuit renders Landowners’ appeal moot.” It asserts that “[b]ecause the Third Lawsuit resulted in a final judgment based on claim preclusion and issue preclusion, a decision reversing the outcome of the First and Second Lawsuits would have no practical effect.” We do not find this argument to be well taken either. The Third Lawsuit was a “Complaint for Declaratory Judgment” and made arguments surrounding the procedural history of the First and Second Applications, not the merits of Landowners’ issues. Because of this, the dismissal of the Third Lawsuit has little bearing on the merits of the First and Second Lawsuits and does not make the relief requested there “impossible or of no legal effect.” See State v. Legg, 2016 UT App 168, ¶¶ 9–10, 380 P.3d 360 (cleaned up). We therefore reject this argument as well. 20230232-CA 16 2026 UT App 140  Potter v. Town of Leeds ANALYSIS I. The First Lawsuit ¶37 We first address Landowners’ challenge to the district court’s order dismissing the First Lawsuit on the basis that they had failed to exhaust their administrative remedies. Because we agree with the Town that Landowners failed to preserve their specific legal theory for appellate review, we need not reach the merits of Landowners’ argument. And we also agree with the Town that the court’s dismissal order should have been issued with prejudice to future refiling. A. Preservation of Landowners’ Legal Theory ¶38 On appeal, Landowners challenge the district court’s dismissal of the First Lawsuit. In particular, the legal theory they advance here is that the June 2022 Letter “refusing to act on the Planning Commission’s recommendation was a separate land use decision” from any decisions the Council made at the June 2021 Meeting. They similarly assert that no law or policy “dictate[s] that a land use authority can render only one land use decision on an application.” On appeal, they do not appear to contest the assertion that the decision made at the June 2021 Meeting constituted a final and appealable land use decision, but they contend that—even if that is true—the Town made another appealable land use decision when it sent Landowners the June 2022 Letter; indeed, they refer to the June 2022 Letter as “a new land use decision.” The determinative question here, as concerns preservation, is whether Landowners advanced this same legal theory before the district court. ¶39 Appellate courts “generally will not consider an issue unless it has been preserved for appeal.” Patterson v. Patterson, 2011 UT 68, ¶ 12, 266 P.3d 828. “To preserve an issue for appeal, a party must present it to the [district] court in such a way that the 20230232-CA 17 2026 UT App 140  Potter v. Town of Leeds [district] court has an opportunity to rule on that issue.” State v. Doyle, 2018 UT App 239, ¶ 13, 437 P.3d 1266 (cleaned up); see also State v. Dowhaniuk, 2025 UT App 100, ¶ 15, 574 P.3d 1000 (“The purpose of this rule is to put the district court on notice of an issue and provide it with an opportunity to rule on it.” (cleaned up)). ¶40 Utah appellate courts have defined “issues” “narrowly” and have emphasized “that an appellant raises a new issue when the appellant raises a legal theory entirely distinct from the legal theory the appellant raised to the district court.” Ahhmigo, LLC v. Synergy Co. of Utah, 2022 UT 4, ¶ 18, 506 P.3d 536 (cleaned up); accord Lavender v. FCOI Pres., LLC, 2025 UT App 47, ¶ 47, 569 P.3d 1037, cert. denied, 570 P.3d 660 (Utah 2025); see also True v. Utah Dep’t of Transp., 2018 UT App 86, ¶ 32, 427 P.3d 338 (“An argument based upon an entirely distinct legal theory is a new claim or issue and must be separately preserved.” (cleaned up)). Indeed, we have explained that even if “the overarching issue . . . was before the district court” but the “distinct legal theory now advanced on appeal” was not, then that specific legal theory remains unpreserved. True, 2018 UT App 86, ¶ 22; see also id. (observing that the broader issue of causation was before the district court but nevertheless determining that the appellant’s specific legal theory regarding causation was not preserved); cf. State v. Winter, 2024 UT App 98, ¶ 16, 554 P.3d 355 (holding that because the appellant “made no mention” of his appellate legal theory “in his arguments to the district court” and “did not ask the district court to weigh in on” it, the theory was unpreserved (cleaned up)). ¶41 Here, the Town asserts that Landowners are raising a legal theory on appeal that is different from the one they asserted before the district court. As the Town sees it, Landowners’ position below was that the June 2021 Meeting “was not a land use decision” and that no “final decision on the First Application” took place “until the June 2022 Letter.” Thus, Landowners’ position was that there was only ever one final decision—the one 20230232-CA 18 2026 UT App 140  Potter v. Town of Leeds contained in the June 2022 Letter; Landowners never argued, to the district court, that there could have been multiple final decisions that were each appealable. The Town therefore asserts that, as the matter was framed by Landowners to the district court, “the only issue the district court had to decide was whether the [Council] actually denied the First Application . . . during the [June 2021 Meeting]” and that the court therefore “never had an opportunity to address whether a municipality can make ‘multiple’ appealable land use decisions” on a land use application. The Town contends that Landowners’ theory on appeal—that final appealable land use decisions were made both at the June 2021 Meeting and in the June 2022 Letter—is “an entirely new legal theory.” After reviewing the record, we find the Town’s arguments on this point persuasive, and we therefore agree with the Town that the legal theory Landowners now raise on appeal is unpreserved for our review. ¶42 In their response to the Town’s motion to dismiss the First Lawsuit, Landowners argued that the June 2022 Letter was the final, appealable land use decision that started their appellate clock ticking. In connection with this argument, Landowners argued vigorously that the Town had made no final decisions at the June 2021 Meeting and that, therefore, nothing that happened at that meeting could have started their appellate clock. They asserted that the Council had not made an “appealable land use decision” at the June 2021 Meeting because—in their view—the Council made a final decision only on Site A and thus the Council’s decision “could not constitute a final land use decision” regarding the entirety of the First Application. Landowners even asserted, at oral argument before the district court, that the Council had never “consider[ed] any motion to . . . approve or deny” the First Application. ¶43 In our view, the Town accurately characterizes the way the issues were framed for the district court—as a binary question, namely, whether the decision made at the June 2021 Meeting 20230232-CA 19 2026 UT App 140  Potter v. Town of Leeds constituted a final appealable land use decision on the First Application. If it did, then Landowners failed to file a timely administrative appeal; if it did not, then Landowners’ efforts to appeal following the June 2022 Letter were timely. In this context, the district court had no legitimate opportunity to consider whether the Town could have made multiple appealable land use decisions regarding the First Application, which is the legal theory Landowners raise here on appeal. ¶44 To be sure, the broader issues of subject-matter jurisdiction and exhaustion of administrative remedies were raised below. But as noted, simply raising the “overarching issue” is not enough to achieve preservation if the “distinct legal theory now advanced on appeal” was not raised. See True, 2018 UT App 86, ¶ 22. And in this case, Landowners asked the district court to adopt a different legal theory (that the June 2021 Meeting involved no actual decision on the First Application and therefore no final appealab