Fuja v. Woodland Hills

               THE UTAH COURT OF APPEALS

                TANNIN J. FUJA AND MEGAN FUJA,
                           Appellants,
                               v.
                      WOODLAND HILLS,
                            Appellee.

                           Opinion
                       No. 20210755-CA
                    Filed December 8, 2022

            Fourth District Court, Provo Department
                 The Honorable Lynn W. Davis
                         No. 200401123

            Richard H. Reeve, Attorney for Appellants
       Robert C. Keller, Dani N. Cepernich, and Nathanael
               J. Mitchell, Attorneys for Appellee

   SENIOR JUDGE RUSSELL W. BENCH authored this Opinion, in
   which JUDGES GREGORY K. ORME and DAVID N. MORTENSEN
                        concurred. 1

BENCH, Senior Judge:

¶1     Tannin and Megan Fuja appeal the district court’s grant of
summary judgment in favor of the city of Woodland Hills (the
City). We agree with the district court and affirm.


                        BACKGROUND

¶2    On July 5, 2019, the City issued a residential building
permit to John and Jennifer Adams, the owners of a lot adjacent
to the lot owned by the Fujas. On February 21, 2020, after

1. Senior Judge Russell W. Bench sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(7).
                       Fuja v. Woodland Hills


construction on the adjacent lot was well underway, counsel for
the Fujas sent a letter to the Woodland Hills City Attorney (the
city attorney), raising “extremely urgent” concerns that the house
being constructed violated the maximum height requirement of
the residential area. Through the letter, the Fujas “demand[ed]
that the City take immediate enforcement action as required by
the City Code.”

¶3      One week later, counsel for the Fujas sent another letter to
the city attorney, raising issues with the average slope on the
adjacent lot. The letter argued that the original plans included two
elevation errors that “do not appear to be accidental.” Although
the letter clarified, “The Fujas are not at this time claiming fraud
against any certain individual or entity,” it did argue, “If the City
had done a competent review of the site plan and the . . . survey,
[it] would have discovered these errors.” The letter requested that
the City “conduct a thorough review of the Construction Plans”
and “act immediately to enforce its Code as written.”

¶4       The Fujas’ counsel sent another letter on March 12, 2020,
which included a list of thirteen specific alleged code violations
and, once again, urged the City to “enforce its City Code as
written.” Shortly thereafter, the city attorney specifically
responded to this letter, providing the City building official’s
response to each alleged code violation listed. Counsel for the
Fujas promptly responded, arguing that the building official’s
responses were “deficient,” imploring the City to have an outside
engineer review the alleged violations, and requesting a response
to the height and slope violations alleged in the earlier February
letters.

¶5      The Fujas submitted an appeal to the Woodland Hills
Board of Adjustment (the Board) on March 31, 2020. They argued
that “[t]he City’s administration and interpretation of the
Building Height Ordinance is in error” and requested that the
ordinance “be enforced as written.” The City responded, arguing,
in part, that the appeal was untimely as it was initiated more than
forty-five days after the Fujas became aware that a building



 20210755-CA                     2               

                      Fuja v. Woodland Hills


permit was issued and therefore had “constructive notice of any
height issues” with the proposed construction.

¶6      In response to the timeliness argument, the Fujas
responded, “The Fujas are not challenging the building permit
that the City issued to the Adams[es] on July 5, 2019. The Fujas
are appealing the decision and determination made by [the City]
to not enforce the City’s Zoning Ordinance . . . .” And they argued
that such a lack of enforcement “did not become apparent until
February 20, 2020,” when construction began on the third story of
the residence. At the hearing before the Board, counsel for the
Fujas further clarified that the Fujas were not challenging the
issuance of the building permit but were, instead, seeking “to
appeal the decision and determination by [the City] . . . to not
enforce the conditions of approval that [the City] had placed upon
the Adams[es] when they were issued their building permit.”

¶7    The Board issued its decision on July 14, 2020. The Board
determined that the lack of enforcement of which the Fujas
complained did not qualify as a “decision or determination” that
would trigger a new appeal window and that the Fujas’ appeal
was therefore untimely, having been filed long after the building
permit was originally issued.

¶8     On August 8, 2020, the Fujas filed a Petition for Review
with the Fourth District Court. The petition stated that it was
made “[p]ursuant to the requirements of” Utah Code section 10-
9a-801. See 

-9a-801 (LexisNexis Supp. 2022)
(setting forth requirements to appeal a “land use decision”). The
petition argued that the Board had “erroneously identif[ied] the
land use decision at issue as the issuance of a building permit on
July 5, 2019,” and had mistakenly “determine[ed] that the
decision to allow the developer to violate the building permit and
deviate from the approved building plans in such a way as to
violate the mandatory land use regulations . . . was not a land use
decision.” The petition therefore argued that “[t]he Board acted
arbitrarily and capriciously in deciding that the [Fujas’] appeal
was untimely by tying the appeal timeline to a decision that was



 20210755-CA                    3               

                     Fuja v. Woodland Hills


based upon the issuance of the original building permit which
relied upon building plans not currently being followed by the
builder of the Non-compliant Residence.”

¶9     In response, the City filed a motion for summary judgment,
arguing that the failure of enforcement claimed by the Fujas does
not constitute a reviewable “land use decision” falling under the
scope of Utah Code section 10-9a-801. The City further argued
that the only “land use decision” in this case was the building
permit issuance on July 5, 2019, and that if the Fujas were
contesting that decision, their challenge would be barred because
they did not timely “exhaust their administrative remedies.”

¶10 The Fujas opposed the motion, arguing that their appeal
before the Board had “encompass[ed] both the (1) issuance of the
building permit by the City building official and (2) subsequent
decisions by the City . . . to allow the Adamses to significantly
depart from the approved plans.” They further argued that the
lack of enforcement did constitute a “land use decision,” as well
as that they could not have appealed to the Board earlier because
the plans actually submitted “did comply with the two-story
requirement regarding building height” and the departures from
those plans were not known until later. Additionally, as part of
their timeliness argument, the Fujas asserted that “key elevation
data in the original building permit appears to have been
concealed or not properly represented” and that the Adamses
used information they “knew, or should have known, to be
incorrect” to obtain the building permit.

¶11 After a hearing, the district court granted the City’s motion
to dismiss. The court concluded,

      Apart from the decision to grant the underlying
      permit, simple inaction is involved here. Such
      inaction cannot form the basis of a land use decision
      review because there is no decision to review at this
      time. Instead, . . . [the Fujas] complain of
      enforcement matters. If [the Fujas] wanted [the City]



 20210755-CA                   4               

                      Fuja v. Woodland Hills


       to enforce its own ordinances, then [the Fujas] could
       have filed an enforcement action pursuant to Utah
       Code section 10-9a-802.

¶12 The Fujas now appeal. 2 They argue that the district court
erred in its assessment of their appeal as one exclusively centered
on enforcement and contend that their challenge was both to the
initial building permit and to the City’s subsequent “decision” to
allow departures from the permit.


             ISSUE AND STANDARD OF REVIEW

¶13 The Fujas contest the district court’s grant of summary
judgment in favor of the City. “It is well established that summary
judgment is appropriate only when there is no genuine issue as to
any material fact and the moving party is entitled to a judgment
as a matter of law.” M & S Cox Invs., LLC v. Provo City Corp., 

, 

 (quotation simplified); see also
Utah R. Civ. P. 56(a). “Accordingly, we review the [district]
court’s entry of summary judgment for correctness and view the
facts and all reasonable inferences drawn therefrom in the light
most favorable to . . . the nonmoving party.” M & S Cox Invs., 

 (quotation simplified).


                            ANALYSIS

¶14 Two provisions of the Municipal Land Use, Development,
and Management Act are relevant in this case. The first is Utah
Code section 10-9a-801 (the appeals section), which allows an
“adversely affected” party to petition the district court for review
of a municipality’s “land use decision.” See 

-
9a-801(2)(a) (LexisNexis Supp. 2022). A “land use decision” is
defined as “an administrative decision of a land use authority or


2. Although the Fujas were originally represented by counsel on
appeal, their reply brief was filed pro se.


 20210755-CA                     5              

                       Fuja v. Woodland Hills


appeal authority regarding: (a) a land use permit; (b) a land use
application; or (c) the enforcement of a land use regulation, land
use permit, or development agreement.” See 

 § 10-9a-103(27)
(Supp. 2019). 3 The second relevant provision, entitled
“Enforcement,” is Utah Code section 10-9a-802 (the enforcement
section), which allows “an adversely affected” party to commence
“proceedings to prevent, enjoin, abate, or remove [an] unlawful
building, use, or act.” See id. § 10-9a-802(1)(a) (Supp. 2022).

¶15 In addressing the applicability of these two sections, our
supreme court has explained that “[w]hen the alleged violation
arises directly from a municipal land use decision,” the appeals
section is applicable, whereas the enforcement section is
applicable when “parties seek[] redress from an alleged ordinance
violation in circumstances where the alleged violation is not
authorized by or embodied in a municipal land use decision.”
Foutz v. City of S. Jordan, 

, 

. We agree
with the City that relevant guidance is given by the supreme
court’s decision in Culbertson v. Board of County Commissioners,

, 

, overruled on other grounds by Madsen v.
JPMorgan Chase Bank, NA, 

, 

 (per curiam).
In Culbertson, the plaintiffs, after having unsuccessfully sought
action from Salt Lake County, 4 brought suit to force the county to


3. This statute has recently been amended, and subpart (c) is no
longer part of the definition of a “land use decision.” See 

-9a-103(31) (LexisNexis Supp. 2022). Notably,
subpart (c) was limited to enforcement and did not extend to
inaction, i.e., a failure to enforce. See 

 § 10-9a-103(27)(c) (Supp.
2019).

4. This county-related case was brought under the County Land
Use, Development, and Management Act, as opposed to the
Municipal Land Use, Development, and Management Act. But the
two acts have parallel (and nearly identical) appeals and
enforcement sections. See Foutz v. City of S. Jordan, 

, 

. Compare 

-9a-801, -802
(LexisNexis 2022), with 

 §§ 17-27a-801, -802.


 20210755-CA                      6                

                       Fuja v. Woodland Hills


enforce its ordinances and a conditional use permit. Id. ¶ 8. The
court clarified that the appeals section was not applicable in such
a situation but “applies only when a party desires to challenge a
land use decision.” Id. ¶ 30. Thus, where plaintiffs “do not challenge
any decisions made under the Land Use Act, but instead seek
enforcement of decisions made pursuant to it,” the appeals section
does not apply. Id. In other words, inaction on the part of the
county was not considered a land use decision addressed by the
appeals section.

¶16 Therefore, to the extent the Fujas argue that the inaction of
the City qualifies as a “land use decision” and can be challenged
through the appeals section, we disagree. The inaction of which
they complain relates to the alleged noncompliance of the
Adamses with the issued building permit. But such
noncompliance “is not authorized by or embodied in” a decision
made under the land use act, see Foutz, 

, and
consequently, the appeals section does not apply.

¶17 The Fujas additionally argue on appeal that their petition
does not simply challenge the City’s failure to act, but it also
challenges the original issuance of the July 5, 2019 building
permit, which is clearly a land use decision that may be appealed
under the appeals section. But this argument is not well taken as
it is a complete departure from the arguments raised by the Fujas
prior to this appeal. Before the Board, the Fujas explicitly stated
that they were not challenging the issuance of the permit but only
the City’s failure to enforce the conditions included within the
permit. Likewise, when petitioning the district court, the Fujas
specified that the alleged error committed by the Board was that
it had “erroneously identif[ied] the land use decision at issue as
the issuance of a building permit on July 5, 2019.” Thus, the Fujas
were clear that they were not raising issues with the original
issuance of the building permit but instead were arguing that City
officials erred by “(1) fail[ing] to require the builder of the Non-
compliant Residence to comply with the approved building
permit and approved building plans and (2) fail[ing] to require
the deviations in construction to be submitted as amended plans



 20210755-CA                      7               

                      Fuja v. Woodland Hills


and undergo an approval process to ensure compliance with the
Zoning Ordinances.”

¶18 Indeed, the only references that the Fujas point to in
support of their claim regarding a challenge to the original permit
are citations to assertions they made in their written and oral
arguments in response to the City’s motion for summary
judgment. They cite no other instance before either the Board or
the district court where such an argument was advanced, nor do
we see any such arguments in our review of the record. Where a
claim is absent from the initial pleadings and appears for the first
time in response to a summary judgment motion, we do not
consider it. See Holmes Dev., LLC v. Cook, 

, 

 (“A plaintiff cannot amend the complaint by raising novel
claims or theories for recovery in a memorandum in opposition to
a motion to dismiss or for summary judgment because such
amendment fails to satisfy Utah’s pleading requirements.”
(citations omitted)). Therefore, the Fujas did not actually
challenge the issuance of the July 5, 2019 building permit before
the district court.

¶19 Moreover, even if an objection to the original building
permit was raised and argued below, that challenge would still
fail as it would be untimely. The City has established that a land
use decision in Woodland Hills has an appeal window of forty-
five days. See Woodland Hills, Utah, Code of Ordinances 127.06(2)
(2020). See generally 

-9a-704(1) (LexisNexis
Supp. 2022) (“The municipality shall enact an ordinance
establishing a reasonable time of not less than 10 days to appeal
to an appeal authority a written decision issued by a land use
authority.”). “[T]he appeal period begins when the affected party
receives actual or constructive notice that the permit has been
issued.” Fox v. Park City, 

, 

. And the
Fujas had constructive notice of the permit in mid-2019 when they
saw that construction had begun on the lot, see id. ¶ 27; however,
their objections were not raised until 2020—long after the appeal
window had closed.




 20210755-CA                     8              

                      Fuja v. Woodland Hills


¶20 In contesting the timeliness issue, the Fujas point us to
language by our supreme court stating that “there may be
exceptional circumstances that may allow an affected party to
bring an appeal even after the appeal period has run.” Id. ¶ 29.
Such exceptional circumstances “may include fraud on the part of
the permit applicant or bribery of municipal officials to secure the
building permit.” Id. This exception is very narrow—indeed we
are aware of no cases that have actually applied this exception.
We do not agree that the circumstances of this case, where the
permit applicant arguably should have known that some
numbers on the original permit application were not accurate,
presents one of these egregious exceptional circumstances that
“so severely undermine the permit process that the appeal period
would not begin until the affected parties have notice of them.”
See id. The Fujas had constructive notice in mid-2019 that the
building permit had been issued, and any objections they had to
the issuance of that permit should have been brought within
forty-five days of that notice. 5 Therefore, their appeal brought in
2020 was untimely. 6




5. It is unclear just what the Fujas would have challenged about
the original permit. They have not clearly stated any objection to
the permit itself. The Fujas would apparently have no problem
with the construction if the Adamses were able to make their land
and house match what was approved in the original permit.

6. The Fujas also take issue with the City’s transmission of the
record to the district court. They argue that because the
transmission included a certain document providing a height
calculation that had not been provided to them earlier, it “did not
afford the Fujas their due process right to address or refute those
calculations.” But the accuracy of those calculations would have
had no impact on whether a land use decision was properly and
timely appealed, which was the basis for the summary judgment.
We therefore decline to engage further with this argument.


 20210755-CA                     9              

                      Fuja v. Woodland Hills


                         CONCLUSION

¶21 Because the inaction of the City is not a land use decision
addressed under the appeals section and because the issuance of
the July 5, 2019 building permit was (according to the language of
the Fujas’ petition) not contested below, we see no error in the
district court’s grant of summary judgment. We therefore affirm.




 20210755-CA                   10