New Case Summary – Brigham City v. Bywater

April 11, 2024

Utah Court of Appeals

2024 UT App 53 (click for full text)

The Utah Court of Appeals held that a city’s appeal challenging a property owner’s easement to access a city street was rendered moot when the city later issued a permit for a curb cut on the property.

Paul Bywater, a property owner in Brigham City, maintained access to his landlocked property through an easement agreement across two neighboring properties. This easement agreement referenced a potential future road, 1100 West, identified on the city’s transportation master plan along the west boundary of Bywater’s property, and stated that if the road were ever completed to allow Bywater street access, the easement agreement would become void.

The City thereafter completed 1100 West, and after construction of the road, one of the property owners subject to Bywater’s easement began limiting Bywater’s access, claiming that completion of 1100 West terminated the easement. Litigation between the property owners ensued and included the City. Seeking a resolution, the owners agreed that Bywater should seek a variance to public work standards from the City to gain access to 1100 West. In response, Brigham City proposed that it would grant a variance for Bywater’s access but only on condition that the access be utilized for agricultural use only. Bywater was not willing to accept this condition, and litigation resumed, with the district court ultimately ruling that Bywater had an easement to access his property off of 1100 West as well as a right to a curb cut allowing that access.

Brigham City appealed but took no action to stay the ruling. Additionally, the City issued a building permit for Bywater to construct a curb to access the street while the appeal was pending. As a result, Bywater argued that the City’s appeal had been rendered moot.

The City argued against a mootness determination, alleging a distinction between its decision to permit the curb cut and retaining the right to assert regulatory authority over how the curb cut was used. The Court of Appeals, however, was unpersuaded that the City’s actions reflected such a distinction and concluded that the appeal was rendered moot by City’s actions, and inaction, following its appeal. The Court of Appeals reasoned that case law establishes the proposition that once construction has commenced, an appellant must avail itself of all avenues of preserving the pre-construction status quo or risk the construction rendering the appeal moot. Whereas Brigham City had not asked for a stay and had even given Bywater a building permit facilitating construction, it had failed to preserve the pre-construction status quo and mooted the City’s ability to challenge any aspect of the decision regarding access.