This opinion is subject to revision before final
publication in the Pacific Reporter
2024 UT 16
IN THE
SUPREME COURT OF THE STATE OF UTAH
SUMMIT COUNTY,
Appellee,
v.
TOWN OF HIDEOUT,
Appellant.
No. 20220573
Heard March 6, 2023
Filed June 13, 2024
On Direct Appeal
Fourth Judicial District, Wasatch County
The Honorable Jennifer A. Mabey
No. 200500107
Attorneys:
Margaret H. Olson, David L. Thomas, Ryan P.C. Stack, Coalville,
for appellee
Troy L. Booher, Caroline A. Olsen, Taylor P. Webb,
Robert E. Mansfield, Megan E. Garrett, Salt Lake City,
Polly Samuels McLean, Park City, for appellant
JUSTICE POHLMAN authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, JUSTICE PETERSEN, JUSTICE HAGEN, and
JUDGE OLIVER joined.
Having recused himself, ASSOCIATE CHIEF JUSTICE PEARCE does not
participate herein; COURT OF APPEALS JUDGE AMY J. OLIVER sat.
JUSTICE POHLMAN, opinion of the Court:
SUMMIT COUNTY v. HIDEOUT
Opinion of the Court
INTRODUCTION
¶1 For just over one hundred days in 2020, Utah law
authorized a municipality to annex an outlying, unincorporated
area without an annexation petition and without county consent.
During this period, the Town of Hideout—aware that the legal
window was closing—undertook to annex an area located in
nearby Summit County.
¶2 After Hideout received a certificate of annexation from the
Lieutenant Governor, Summit County challenged the annexation
and the attendant municipal ordinance (annexation ordinance) in
the district court. Both parties moved for summary judgment,
Hideout disputing Summit County’s standing, and Summit
County seeking judgment on the merits of one of its five claims.
The district court ruled against Hideout on both motions,
concluding that Summit County had standing to challenge the
annexation and declaring the annexation ordinance invalid from its
inception.
¶3 We reverse the district court’s decisions. The relevant
statutory scheme—the annexation code—does not provide Summit
County with a legally protectible interest that would allow it to
obtain the relief it seeks. Similarly, the statutory provisions outside
the annexation code that Summit County relies on do not provide
Summit County with a legally protectible interest in the
controversy. Finally, the doctrine of public interest standing, on
which the district court alternatively relied, is inapplicable here.
¶4 Because we conclude that Summit County lacks standing
to pursue its claims, we also reverse the district court’s award of
summary judgment in Summit County’s favor without addressing
the merits of Summit County’s claims, and we remand the case to
the district court for dismissal.
BACKGROUND
¶5 We begin by describing the statutory scheme the
legislature has established to govern land annexation, including
relatively recent changes to that scheme. We then summarize
Hideout’s annexation and Summit County’s challenge.
The Legislature’s 2020 Changes to the Utah Annexation Code
¶6 The Utah Legislature has the authority to determine
municipal boundaries. Sandy City v. City of South Jordan, 652 P.2d
1316, 1318 (Utah 1982); see also Kearns-Tribune Corp. v. Salt Lake Cnty.
Comm’n,
2001 UT 55, ¶ 21,
28 P.3d 686. This includes regulating
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Opinion of the Court
land annexation, see Kearns-Tribune Corp., 2001 UT 55, ¶ 21, which
is the extension of town or city boundaries into unincorporated
areas. The legislature has long delegated its annexation power to
local governments. See generally UTAH CODE §§ 10-2-401 to -429 (the
annexation code).
¶7 Prior to the 2020 general legislative session, the annexation
code generally permitted annexation only when the area to be
annexed was contiguous to the annexing municipality. See id. § 10-
2-402(1)(a) (May 1, 2020). An annexing municipality also typically
had to initiate a petition to commence the annexation process. See
id. § 10-2-403(1) (May 1, 2020); see also id. § 10-2-402(2) (May 1, 2020).
And if a municipality wanted to annex property located in a county
different from its own, the other county had to consent. Id. § 10-2-
402(6)(a) (May 1, 2020).
¶8 During the 2020 general legislative session, the legislature
enacted H.B. 359S1, which created an exception to these
requirements. 1 Under the bill, later codified as Utah Code
subsection 10-2-418(3), a municipality was permitted to annex a
non-contiguous, unincorporated area “without an annexation
petition or the consent of the county in which the area proposed for
annexation is located” if certain conditions were met. See id. § 10-2-
418(3) (July 1, 2020). The proposed annexation area had to meet
specific criteria and be located “within two miles of the proposed
annexing municipality’s boundary.” Id. § 10-2-418(3)(a)–(b) (July 1,
2020). Further, “each owner of private real property within the area
proposed for annexation” had to consent “in writing to the
proposed annexation.” Id. § 10-2-418(3)(c) (July 1, 2020).
¶9 Besides meeting these criteria, a municipality carrying out
an annexation under subsection 10-2-418(3) had to satisfy other
requirements. The annexing municipality had to adopt a resolution
indicating its “intent to annex the area” and describing “the area
proposed to be annexed.” Id. § 10-2-418(6)(a) (July 1, 2020). The
annexing municipality was further required to publish notice of
and hold a public hearing on the proposed annexation. Id. § 10-2-
418(6)(b), (7) (July 1, 2020).
¶10 So long as the pertinent statutory requirements were met,
a municipality conducting an annexation under the process
established by H.B. 359S1 was permitted to “adopt an ordinance
1 See Municipal Annexation Revisions, H.B. 359, 2020 Leg., Gen.
Sess. (Utah 2020) (available at https://le.utah.gov/~2020/bills/sta
tic/HB0359.html).
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SUMMIT COUNTY v. HIDEOUT
Opinion of the Court
approving the annexation of the area proposed for annexation.” Id.
§ 10-2-418(9)(b)(i)(B) (July 1, 2020). And it could do so “without
allowing or considering protests.” Id. § 10-2-418(9)(b)(i) (July 1,
2020). “[W]ithin 60 days after enacting” an annexation ordinance,
the annexing municipality had to file “a notice of an impending
boundary action,” as well as “a copy of an approved final local
entity plat,” with the lieutenant governor. Id. § 10-2-425(1)(a) (July
1, 2020).
¶11 The lieutenant governor must review notices of
impending boundary action “[w]ithin 10 days” of receiving them.
Id. § 67-1a-6.5(2). The lieutenant governor determines whether a
notice meets the statutory requirements and, if she determines it
does, certifies the annexation. Id. An annexation carried out under
H.B. 359S1 was deemed “completed” and “conclusively presumed
to be valid[]” once the lieutenant governor certified it. Id. §§ 10-2-
425(4)(b), 10-2-418(9)(b)(ii) (July 1, 2020).
¶12 The process permitting a municipality to annex an area
without a petition or county consent—the process that the
legislature enacted through H.B. 359S1—did not last long. About
two months after the bill became law, the legislature passed H.B.
6007, which removed the exception that H.B. 359S1 added. 2 As with
other legislation, H.B. 6007 was set to become law sixty days after
close of the legislative session. 3 See UTAH CONST. art. VI, § 25.
The Annexation
¶13 In July 2020, while H.B. 359S1 was still in force, Hideout
initiated the process to annex an area of land in Summit County.
After one stalled attempt, Hideout began again, omitting some of
the property from its first go-around. 4
2 See Municipal Annexation Revisions, H.B. 6007, 2020 Leg., 6th
Spec. Sess. (Utah 2020) (available at https://le.utah.gov/~2020S6/
bills/static/HB6007.html).
3 The parties disagree about the date on which H.B. 6007 took
effect. The district court stated that the bill became effective on
October 20, 2020. Because the bill’s effective date is not material to
the outcome of this case, we need not resolve this disagreement,
and we accept the district court’s statement for purposes of this
appeal.
4 Hideout’s previous annexation attempt is not at issue in this
appeal.
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Opinion of the Court
¶14 For its renewed attempt, Hideout secured written consent
from the owners of about 350 acres of unincorporated property in
Summit County. Hideout held a town council meeting soon after
and adopted a resolution conveying its intent to annex the area. At
the same meeting, Hideout empowered its mayor to enter into a
pre-annexation agreement, which provided that an agreement
between Hideout and the private property owners in the
annexation area—the Annexation Master Development Agreement
(AMDA)—would be executed as part of the annexation.
¶15 Hideout published notice that a hearing on the proposed
annexation would be held on October 12, 2020. It held the hearing
on the scheduled date and then, on October 16, adopted the
annexation ordinance. The annexation ordinance approved the
annexation, authorized Hideout’s mayor to execute the AMDA,
and amended Hideout’s zoning map to include the annexed area.
¶16 On October 19, Hideout delivered a notice of impending
boundary action to the Lieutenant Governor. Hideout informed the
Lieutenant Governor that it had approved the annexation under
Utah Code subsection 10-2-418(3). Hideout also attested that the
annexation ordinance was “duly adopted” and that “all of the
requirements for the annexation . . . ha[d] been met and comply
with Utah law.” Attached to the notice were copies of the
annexation ordinance, final local entity plats, and the AMDA.
¶17 On October 20, H.B. 6007 took effect. See supra ¶ 12 n.3.
That same day, Summit County wrote to the Lieutenant Governor’s
office, requesting that he not certify the annexation. Summit
County alleged that the annexation ordinance was not in effect, that
Hideout’s annexation process violated the Utah Open and Public
Meetings Act (OPMA), that Hideout’s agreement to zone and
develop the annexation area was invalid and unlawful, and that the
annexation resulted from illegal bribery.
¶18 On October 26, Hideout posted notice of the annexation
ordinance in three places around the town.
¶19 The Lieutenant Governor certified the annexation on
October 28. The written certificate stated that Hideout had “filed
. . . a notice of annexation . . . complying with Section 10-2-418,
Utah Code Annotated.”
Summit County’s Challenge
¶20 Summit County promptly filed suit, challenging the
annexation, as well as the annexation ordinance and the AMDA, on
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Opinion of the Court
five grounds. Summit County claimed that during the annexation
process, Hideout
(1) failed to hold public hearings as required by the
Municipal Land Use, Development, and
Management Act (LUDMA),
(2) did not comply with the enactment procedures
required for a land use regulation under LUDMA,
(3) engaged in unlawful contract zoning,
(4) violated the notice requirements of OPMA and the
annexation code, and
(5) neglected to timely publish the annexation
ordinance.
¶21 Summit County then moved for summary judgment on its
fifth claim—that Hideout failed to timely publish the annexation
ordinance—and urged the court to declare invalid Hideout’s “final
actions taken . . . in annexing lands within Summit County.” 5
¶22 Hideout opposed Summit County’s summary judgment
motion and brought one of its own. Among other things, it asked
the court to dismiss Summit County’s complaint for lack of
standing because Summit County could not establish a legally
protectible interest conferred by statute.
¶23 Summit County responded that “as the land use
authority” over the annexed area, it has statutory standing under
the County Land Use, Development, and Management Act
(CLUDMA); LUDMA; and OPMA. Summit County also claimed
standing under Utah caselaw because “there is a justiciable
controversy” and Summit County holds legally protectible
interests “that are adverse to Hideout.” And finally, Summit
County alternatively claimed standing under the doctrine of public
interest standing.
¶24 The district court denied Hideout’s motion for summary
judgment and granted Summit County’s. On Hideout’s challenge
to Summit County’s standing as to “all causes of action,” the court
agreed with Summit County that it had standing under LUDMA,
OPMA, and the doctrine of public interest standing. As for Summit
5 Summit County later moved for summary judgment on its
second, third, and fourth claims. The district court ruled on Summit
County’s summary judgment motion on the fifth claim only,
concluding that its ruling was dispositive of all five claims.
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Opinion of the Court
County’s argument that Hideout’s publication of the annexation
ordinance was untimely, the court agreed. It reasoned that
Hideout’s authority to complete the annexation had expired before
the annexation was completed, thus invalidating the ordinance.
¶25 Hideout moved for reconsideration, reiterating that it had
timely complied with all relevant annexation requirements and
asking the court to revisit its standing decision. The district court
upheld its original rulings. It again accepted Summit County’s
assertion that Hideout had not timely “complete[d] all necessary
steps for the annexation ordinance to be enacted.” And it accepted
Summit County’s argument that additional statutes, including the
Utah Declaratory Judgment Act and CLUDMA, provided standing.
¶26 Upon entry of final judgment, Hideout appealed.
ISSUE AND STANDARD OF REVIEW
¶27 Hideout challenges the district court’s grant and denial of
summary judgment. We review a district court’s “ultimate grant or
denial of summary judgment for correctness.” Orvis v. Johnson, 2008
UT 2, ¶ 6,
177 P.3d 600 (cleaned up).
¶28 In this opinion we reach only the district court’s decision
on the threshold question of Summit County’s standing. We review
the court’s legal determinations relevant to that question for
correctness. Jones v. Barlow, 2007 UT 20, ¶ 10,
154 P.3d 808; see also
Kearns-Tribune Corp. v. Wilkinson,
946 P.2d 372, 373 (Utah 1997)
(“[T]he question of whether a given individual or association has
standing to request a particular relief is primarily a question of law
. . . .”).
ANALYSIS
¶29 The district court determined that Summit County has
standing under the Declaratory Judgment Act, as well as various
sections of CLUDMA, LUDMA, and OPMA. It also concluded that
Summit County meets the test for public interest standing.
¶30 We disagree. All five of Summit County’s claims are
asserted under the Declaratory Judgment Act, and Summit County
lacks an essential component of standing under our Declaratory
Judgment Act caselaw—a legally protectible interest in the
controversy. The interests that Summit County asserts in this case
do not amount to legally protectible interests in the annexation, the
annexation ordinance, or the AMDA. Further, under our caselaw,
the public interest standing doctrine cannot compensate for
Summit County’s lack of a legally protectible interest because the
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Opinion of the Court
legislature excluded outside counties from the statutory
annexation process.
I. BECAUSE SUMMIT COUNTY HAS NO LEGALLY PROTECTIBLE
INTEREST IN THE CONTROVERSY, IT LACKS STANDING UNDER THE
DECLARATORY JUDGMENT ACT
¶31 The Declaratory Judgment Act aims to “settle and . . .
afford relief from uncertainty and insecurity.” UTAH CODE § 78B-6-
412. To that end, it recognizes the power of district courts “to
determine any question of construction or validity” of a statute or
municipal ordinance when the statute or ordinance affects a
person’s “rights, status, or other legal relations.” Id. § 78B-6-408; see
also id. § 78B-6-401(1) (“Each district court has the power to issue
declaratory judgments determining rights, status, and other legal
relations within its respective jurisdiction.”). And it authorizes
district courts “to declare that person’s rights, status, or legal
relations under the statute” or ordinance. Miller v. Weaver, 2003 UT
12, ¶ 15,
66 P.3d 592.
¶32 Despite its broad terms, the Declaratory Judgment Act
does not open courthouse doors that would be closed without it.
“The statutory creation of relief in the form of a declaratory
judgment does not create a cause of action or grant jurisdiction to
the court where it would not otherwise exist.” Jenkins v. Swan,
675
P.2d 1145, 1148 (Utah 1983).
¶33 Simply put, parties may bring actions under the
Declaratory Judgment Act only if they “can show that the
justiciable and jurisdictional elements requisite in ordinary
actions”—including standing—“are present.” Miller, 2003 UT 12,
¶ 16 (cleaned up). We have previously declared that four
requirements “must be satisfied” for this standard to be met:
“(1) there must be a justiciable controversy; (2) the interests of the
parties must be adverse; (3) the parties seeking relief must have a
legally protectible interest in the controversy; and (4) the issues
between the parties must be ripe for judicial determination.”
Jenkins,
675 P.2d at 1148 (cleaned up). It is the third requirement—
that the party seeking relief have a legally protectible interest in the
controversy—that is at issue here.
¶34 Generally speaking, a party has an interest that is legally
protectible for purposes of standing if it has a claim for relief that
“emanates from . . . the common law, a statute, or the constitution.”
See Haik v. Jones,
2018 UT 39, ¶ 39,
427 P.3d 1155 (Lee, A.C.J.,
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Opinion of the Court
concurring in part and concurring in the judgment). 6 Here, Summit
County has not argued that it has a constitutional or common law
right of action. Instead, it relies entirely on the Declaratory
Judgment Act based on rights it claims emanate from several
different statutes.
¶35 We rejected a similar argument in Miller v. Weaver. 2003 UT
12. Miller explains that when a party’s declaratory judgment claim
is rooted in statute, not the constitution or common law, a legally
protectible interest comes from an express or implied statutory
right of action. See generally
id. In that case, a group within the
Spanish Fork High School community, including students, former
students, and parents of students, expressed concern about a
psychology teacher’s professional competence and performance.
Id. ¶ 5. The group sought recourse under the Declaratory Judgment
Act, asking for “judicial declarations of whether [the teacher] had
violated various state statutes governing the conduct of teachers
and psychologists.” Id. In attempting to demonstrate a legally
protectible interest in the controversy, the plaintiffs pointed to a
statute that, in their view, gave them a “right of action . . . against a
teacher for violation of any statute that concerns the professional
competence or performance, or ethical conduct, of a teacher.” Id.
¶ 18. The statute provided that “[n]o civil action by or on behalf of
a student” could “be brought in a court until” certain procedural
requirements were met. See id. (cleaned up).
¶36 We rejected the argument that this statute granted a right
that was legally protectible for purposes of the Declaratory
Judgment Act. Id. ¶¶ 19–25. Interpreting the statute, we noted the
absence of express language that would create a right of action, and
we declined to recognize one by inference. Id. ¶¶ 19–20. And
because “a method for remedying violations of the statutory
guidelines” already existed, we concluded that “it would be
inconsistent with the Legislature’s statutory scheme” to infer that
the legislature intended to permit the plaintiffs to enforce the
statutory requirements. Id. ¶¶ 21–22. Accordingly, we held that the
plaintiffs did not have “a legally protectible interest in th[e]
6 Justice Lee’s concurrence in Haik focused on public interest
standing. We cite it only for its articulation of the principles that
animate this appeal.
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Opinion of the Court
controversy” and could not assert a claim under the Declaratory
Judgment Act. 7 Id. ¶¶ 25, 28.
¶37 Although here, unlike in Miller, the parties frame the issue
in terms of standing, the legally-protectible-interest throughline
leads us to apply our reasoning in Miller and conclude that Summit
County may not proceed with its claims. The controversy revolves
around the annexation of land into the Town of Hideout, which
resulted from the annexation process created by the legislature.
And because Summit County does not claim a legally protectible
interest under the constitution or common law, it must identify a
statutory right of action—either express or implied. See Bleazard v.
City of Erda, 2024 UT 17, ¶ 43, __ P.3d __ (explaining that this
requirement has been “commonly referred to as ‘statutory
standing’” (cleaned up)). As we discuss below, it has not done so.
A. The Annexation Code Does Not Create a Legally Protectible
Interest for Summit County
¶38 Given that Summit County seeks to invalidate Hideout’s
annexation based on an allegedly faulty process, the annexation
code is the most intuitive place to look for a right of action that
would aid Summit County in establishing a legally protectible
interest in the annexation. Yet Hideout initiated the annexation
under the process in the annexation code that was established by
H.B. 359S1, which, Summit County concedes, does not expressly
provide counties with a right of action. And Summit County makes
no attempt to argue that the annexation code implies a right to seek
relief for Hideout’s alleged non-compliance with the code’s terms.
7 Summit County mentions Utah Restaurant Ass’n v. Davis
County Board of Health, 709 P.2d 1159 (Utah 1985), as being
“analogous” to the circumstances here. In that case, we held that a
restaurant association, as well as one of its member restaurants, had
standing under the Declaratory Judgment Act to challenge the
validity of a county-created fee regulation.
Id. at 1160–63. But we
did not address the central issue Summit County confronts in
asserting standing here: whether the legislature gave either the
association or its members a legally protectible interest in the
controversy. And there, “neither party briefed the questions of
jurisdiction or standing,”
id. at 1160, so our holding was unaided
by the adversarial process. Because we developed the precise
question at issue here most fully in Miller, see supra ¶¶ 35–37, that
case is the most helpful.
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Opinion of the Court
¶39 During the relevant period, the annexation code allowed a
municipality (here, Hideout) to “annex an unincorporated area
without . . . the consent of the county in which the area proposed
for annexation [was] located” (here, Summit County) and “adopt
an ordinance approving the annexation of the area proposed for
annexation . . . without allowing or considering protests.” See id.
§ 10-2-418(3), (9)(b)(i) (July 1, 2020). This is what Hideout purports
to have done. The fact that the legislature foreclosed outside
counties from taking part in the annexation process suggests it did
not intend to imply a right of action that would allow a county to
challenge the annexation process after the fact. Thus, the
annexation code, at least in the form as it existed for just over one
hundred days in 2020, did not confer upon Summit County a
legally protectible interest allowing it to bring its claims under the
Declaratory Judgment Act.
B. The Other Statutes Summit County Relies on Do Not Give It a
Legally Protectible Interest in the Controversy
¶40 Perhaps given the annexation code’s lack of a right of
action in its favor, Summit County takes aim elsewhere. Following
the County’s lead, the district court identified four sections of the
Utah Code—sections of CLUDMA, LUDMA, and OPMA—as
sources of standing for Summit County to challenge the
annexation. On appeal, Summit County defends only two of the
four sections the district court cited and identifies four others that,
in its view, provide alternate bases on which the court’s standing
decision can be affirmed. 8 See Croft v. Morgan Cnty., 2021 UT 46,
8 The district court concluded that Utah Code subsections 17-
27a-103(2)(a) and 10-9a-103(2)(a) authorize Summit County to
bring its claims. Those provisions define the term “[a]dversely
affected party” under both CLUDMA and LUDMA as an owner of
“real property adjoining the property that is the subject of a land
use application or land use decision.”
On appeal, Hideout maintains these statutes are irrelevant to
the standing question because (1) they are mere “definitional
provision[s]” and (2) there is no land use application or land use
decision at issue. And Summit County seems to agree,
characterizing the issue as a “red herring[].” Because Hideout has
made “a prima facie showing of a plausible basis for reversal,”
which Summit County does not dispute, we reverse the district
court’s determination on these points. See AL-IN Partners, LLC v.
(continued . . .)
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¶ 43, 496 P.3d 83 (“We will affirm the ruling of a lower court on
alternate grounds . . . when the ground or theory is apparent on the
record.” (cleaned up)).
¶41 We conclude that these statutory provisions do not satisfy
the demands of the Declaratory Judgment Act such that Summit
County can proceed with its claims. The provisions—none of which
are within the annexation code itself—recite statements of purpose,
provide for general enforcement authority, and circumscribe
judicial review. They do not, as is required under our caselaw, give
Summit County a legally protectible interest in the controversy.
1. CLUDMA’s Statutory Purposes Under Utah Code Subsection 17-
27a-102(1)
¶42 Summit County now invokes Utah Code subsection 17-
27a-102(1) to claim standing. That subsection outlines CLUDMA’s
general purposes in furtherance of the public interest, and it
authorizes counties to enact “ordinances, resolutions, and rules” to
further those purposes. 9 UTAH CODE § 17-27a-102(1).
LifeVantage Corp.,
2021 UT 42, ¶ 19,
496 P.3d 76 (cleaned up); see also
id. (“[W]hen an appellee fails to present us with any argument, an
appellant need only establish a prima facie showing of a plausible
basis for reversal.” (cleaned up)).
9 The general purposes provision reads in full:
(1)(a) The purposes of this chapter are to:
(i) provide for the health, safety, and welfare;
(ii) promote the prosperity;
(iii) improve the morals, peace, good order,
comfort, convenience, and aesthetics of each
county and each county’s present and future
inhabitants and businesses;
(iv) protect the tax base;
(v) secure economy in governmental
expenditures;
(vi) foster the state’s agricultural and other
industries;
(vii) protect both urban and nonurban
development;
(viii) protect and ensure access to sunlight for
solar energy devices;
(continued . . .)
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¶43 A statute’s broad statements of purpose, however, are
different from a statutory right of action, which is what Summit
County needs to establish a legally protectible interest. Cf. Wash.
Cnty. Water Conservancy Dist. v. Morgan, 2003 UT 58, ¶ 8,
82 P.3d
1125 (explaining that “the broad statements of purpose to be served
by water conservancy districts are insufficient to establish statutory
standing . . . where a district’s own uses would not be affected”).
So while it may be true that CLUDMA is designed to further the
public interest through its enumerated purposes, that design falls
short of conferring on Summit County a legally protectible interest
in the annexation. And where Summit County has not advanced a
cause of action under CLUDMA, we are doubly skeptical about
Summit County’s invocation of this provision to support its
standing claim.
2. General Enforcement Authority Under Utah Code Sections
17-18a-405(3), 17-18a-502, 17-27a-802(1)(a), 52-4-303(1)
¶44 Summit County claims to be an “enforcement authority
with standing.” Because Hideout’s proposed zoning of the
annexation area may ultimately conflict with Summit County’s
general plan and development code, Summit County contends the
Utah Code empowers it to “‘enforce and prosecute’” that potential
conflict. (Quoting UTAH CODE § 17-18a-502.) For support, Summit
County cites four provisions of the Utah Code, which state as
follows:
• “A public prosecutor may act as legal counsel to
the state, county, government agency, or
government entity regarding . . . civil actions
incidental to or appropriate to supplement a
public prosecutor’s duties, including an
injunction, a habeas corpus, a declaratory action,
or an extraordinary writ action, in which the
interests of the state may be affected.” UTAH CODE
§ 17-18a-405(3).
(ix) provide fundamental fairness in land use
regulation;
(x) facilitate orderly growth and allow growth in
a variety of housing types; and
(xi) protect property values.
UTAH CODE § 17-27a-102(1)(a).
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• “The civil counsel shall enforce and prosecute, in
the appropriate court, civil violations of a county
ordinance.” Id. § 17-18a-502.
• “A county . . . may, in addition to other remedies
provided by law, institute: (i) injunctions,
mandamus, abatement, or any other appropriate
actions; or (ii) proceedings to prevent, enjoin,
abate, or remove [an] unlawful building, use, or
act.” Id. § 17-27a-802(1)(a).
• “The attorney general and county attorneys of the
state shall enforce [OPMA].” Id. § 52-4-303(1).
¶45 Even if we were to determine that these provisions grant
Summit County a right to sue in some circumstances, Summit
County has not explained their relevance here. The first provision
noted above permits a “public prosecutor” to serve as legal counsel
on a county’s behalf in “civil actions incidental to or appropriate to
supplement a public prosecutor’s duties.” Id. § 17-18a-405(3). We
cannot say this provision, which identifies the civil responsibilities
of county prosecutors, endows the county with a substantive right
to challenge an annexation. See id.
¶46 Similarly, the second provision authorizes “civil counsel”
to “enforce and prosecute . . . civil violations of a county
ordinance.” Id. § 17-18a-502. Again, this is a square peg in a round
hole. This provision empowers a county civil attorney to bring civil
enforcement actions for civil violations of county ordinances. It
does not provide the county with the right to challenge a
municipality’s ordinance as void.
¶47 The third provision, a provision of CLUDMA, empowers
counties to “institute . . . injunctions, mandamus, abatement, or any
other appropriate actions; or . . . proceedings to prevent, enjoin,
abate, or remove [an] unlawful building, use, or act.” Id. § 17-27a-
802(1)(a). This provision may seem, at first glance, to apply, given
that Summit County seeks injunctive relief. But Summit County
has not challenged the annexation as violating CLUDMA. Nor has
it identified any text in CLUDMA that would suggest the
legislature intended that the enforcement authority given to
Summit County under CLUDMA should apply outside of the act.
See Gardner v. Bd. of Cnty. Comm’rs, 2008 UT 6, ¶ 19 n.4,
178 P.3d 893
(“[S]ection 802 provides a means to challenge procedural violations
of CLUDMA.”), abrogated on other grounds by Utah Res. Int’l, Inc. v.
Mark Techs. Corp.,
2014 UT 59,
342 P.3d 761.
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Opinion of the Court
¶48 The fourth provision, a provision of OPMA, entitles “[t]he
attorney general and county attorneys” to “enforce” OPMA. UTAH
CODE § 52-4-303(1). But again, this provision does not purport to
give Summit County a legally protectible interest in an annexation
by another municipality. And although Summit County does
challenge the annexation as violating OPMA, its general authority
to enforce OPMA does not determine Summit County’s standing
here. Cf. Buckner v. Kennard, 2004 UT 78, ¶ 38,
99 P.3d 842
(differentiating the power to enforce a statute on the public’s behalf
from a statutory remedy for an alleged personal injury). OPMA
does identify a class of plaintiffs with a right to sue: “A person
denied any right under” OPMA “may commence suit in a court of
competent jurisdiction to . . . compel compliance with or enjoin
violations of [OPMA]; or . . . determine [OPMA’s] applicability to
discussions or decisions of a public body.” UTAH CODE § 52-4-
303(3). Yet rather than argue that it is a person denied a right under
OPMA, Summit County instead invokes its attorney’s enforcement
authority. And it does so without explaining how that authority
enables it to proceed under the circumstances here.
3. References to Court Review Under Utah Code Section 10-9a-
801(3)(a), (5)
¶49 Summit County tosses one additional statute into the mix.
It contends that Utah Code subsections 10-9a-801(3)(a) and (5)
create a statutory claim for review of land use regulations. These
provisions of LUDMA state:
(3)(a) A court shall:
(i) presume that a land use regulation properly
enacted under the authority of this chapter is
valid; and
(ii) determine only whether:
(A) the land use regulation is expressly
preempted by, or was enacted contrary to,
state or federal law; and
(B) it is reasonably debatable that the land use
regulation is consistent with this chapter.
...
(5) If the municipality has complied with Section 10-
9a-205, a challenge to the enactment of a land use
regulation or general plan may not be filed with the
district court more than 30 days after the enactment.
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SUMMIT COUNTY v. HIDEOUT
Opinion of the Court
UTAH CODE § 10-9a-801(3)(a), (5). These provisions do not give
Summit County what it needs. At most, they narrow the scope of
district court review of land use regulations. Under our caselaw,
“we . . . require more than a mere allusion to ‘civil actions’ as
evidence of a legislative intent to impart substantive rights.” Miller
v. Weaver, 2003 UT 12, ¶ 21,
66 P.3d 592 (cleaned up). These
provisions’ references to court review of land use regulations are
not enough to confer on Summit County a legally protectible
interest in the annexation.
¶50 Thus, for various reasons, each section of the Utah Code
that Summit County invokes independently fails to create a legally
protectible interest for purposes of the Declaratory Judgment Act.
II. THE DOCTRINE OF PUBLIC INTEREST STANDING DOES NOT SAVE
SUMMIT COUNTY’S CLAIMS
¶51 The district court alternatively concluded that Summit
County has public interest standing because the annexation “is a
matter of great public interest and societal impact.” Because this
conclusion is inconsistent with our holding in McKitrick v. Gibson,
2021 UT 48,
496 P.3d 147, we disagree.
¶52 Under our caselaw, we “may grant standing where
matters of great public interest and societal impact are
concerned.” 10 Gregory v. Shurtleff, 2013 UT 18, ¶ 12,
299 P.3d 1098
(cleaned up). But this form of standing, which we often refer to as
alternative standing or public interest standing, does not apply if a
plaintiff’s claims arise from a statutory scheme that excludes the
plaintiff.
¶53 In McKitrick, for example, Gibson sought to appeal the
decision of a local appeals board under the Utah Government
Records Access and Management Act (GRAMA).
2021 UT 48, ¶ 1.
The problem was that the legislature specified in GRAMA who
could appeal such decisions, and Gibson was not one of them. Id.
¶ 43. Gibson tried to evade this built-in statutory restriction by
asserting traditional and alternative standing. Id. ¶ 45. He was
unsuccessful, however, because plaintiffs who lack standing under
10 We note that “members of this court have expressed serious
doubt about the intellectual underpinnings of the doctrine [of
public interest standing] and have invited further discussion of its
continued viability.” Haik v. Jones,
2018 UT 39, ¶ 23 n.5,
427 P.3d
1155. Where neither party on appeal has invited that discussion, we
leave it for another day.
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Opinion of the Court
the statute through which they stake their claim may not cure that
deficiency through traditional or alternative standing. See id. ¶¶ 48,
50. This being so, we declined to consider the merits of Gibson’s
alternative standing argument, see id. ¶ 15 n.5, holding that
“because he lack[ed] standing under the plain language of the
statute under which he is a claimant, Gibson [could] not proceed
on . . . alternative standing grounds,” id. ¶ 50.
¶54 Summit County’s claims similarly arise from a statutory
scheme—the annexation code—the relevant version of which
excluded Summit County from the annexation process by
permitting a municipality to annex land in another county without
that county’s input or objection. For the reasons we gave in
McKitrick, Summit County may not evade this built-in statutory
restriction by asserting alternative standing. We therefore decline
to consider the merits of Summit County’s alternative standing
argument.
CONCLUSION
¶55 We reverse the district court’s denial of Hideout’s motion
for summary judgment. Summit County has not identified a legally
protectible interest in the controversy, a necessary ingredient in a
declaratory judgment action. And the doctrine of public interest
standing does not rescue Summit County, because its claims are
rooted in a statutory scheme from which it was excluded. We
therefore hold that Summit County lacks standing to bring its
claims and direct the district court to dismiss the action.
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