Ogden City Plaza Inv. v. Ogden City Board of Zoning Adjustment

June 16, 2022

Utah Court of Appeals

2022 UT App 74 (Click for full text of opinion)

The Utah Court of Appeals held that a zoning board’s interpretation of its zoning ordinance prohibiting drive-in restaurants was incorrect.

Ogden City Plaza Investors owns commercial property in the Central Business District (CBD) of Ogden City that featured a standalone building with a drive-through window that had been leased to various fast-food establishments for years. Following a six-year vacancy, the city informed the owner that it had lost a nonconforming use right to a drive-through window. The owner responded, arguing that the window was otherwise permitted in the CBD under the zoning ordinance. The owner eventually sought a formal determination from the city planning division that the drive-through was permitted under the zoning ordinance. The planning division disagreed, and the City’s Board of Adjustment reached the same outcome. On judicial review, the district court held that the Board correctly interpreted the ordinance, and the owner appealed.

 The City’s zoning ordinance contained a use table, which listed uses in one column, the zoning districts in the following columns, and a corresponding “P” for permitted, “N” for not permitted, or “C” for conditional uses, in each zone. One entry in the table included a list that stated: “Service station, drive-in restaurant, gas pumps, convenience stores,” with an accompanying “P” for “permitted” in the CBD zone column. The owner argues that this entry plainly indicates that a “drive-in restaurant” is permitted in the CBD, but the City argued that this was a “mixed-use” entry, wherein a drive-in restaurant fails to qualify unless attached to a combination service station and convenience store that has gas pumps. 

Municipal ordinances are interpreted according to the ordinary rules of statutory interpretation, in which the court begins with the text, presuming the legislative body used each word advisedly, and deems all omissions to be purposeful. Further, because zoning ordinances are in derogation of the common-law right to unrestricted use of property, provisions permitting property uses are liberally construed in favor of the property owner. Employing grammar canons of statutory interpretation, and reading the zoning ordinance as a whole, the Court of Appeals concluded that this list was a series of independent uses that were each permitted in the CBD zone, and held that City’s Zoning Board incorrectly concluded that the zoning ordinance prohibited the owner’s use of the property as a drive-in restaurant within the CBD.