State property-rights ombudsman outlines advisory opinions, appeals and pitfalls for Emigration Canyon planning commission
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Summary
Richard Plaine of the Utah Property Rights Ombudsman’s office told the Emigration Canyon planning commission that advisory opinions (added to statute in 2006) are nonbinding but influential, can lead to attorney-fee awards if a court reaches the same result, and can be requested by property owners, neighbors with standing or local governments. Plaine also reviewed vested rights, pending-ordinance holds and limits on local design controls.
Richard Plaine, an attorney with the Utah Property Rights Ombudsman’s office, told the Emigration Canyon planning commission that the office issues nonbinding advisory opinions that are written like judicial analyses and often resolve land-use disputes without litigation.
"We write an opinion as if we were a judge," Plaine said, describing the office’s work since the advisory-opinion authority was added to its statute in 2006. He said the office was created by the legislature in 1997 to mediate eminent‑domain disputes and later expanded its role into land‑use advisory opinions.
Plaine explained how advisory opinions interact with courts: an opinion is not itself binding, but if a party ignores an ombudsman opinion and later loses in court on the same issue, the court may award attorney’s fees against the government. "If we issue an opinion and the court rules on the same issues the same way we did, then the court could award attorney’s fees," he said.
The ombudsman clarified who can request an opinion and when: property owners and potentially aggrieved neighbors who have standing may request opinions; a local government may also request one. Requesting an opinion is not a mandatory step before filing suit, Plaine said, but the request must occur before there is a final appeal decision. A municipal request can, if the city chooses, place an application on hold while the ombudsman considers the issue.
Plaine walked commissioners through several common land‑use topics that appear frequently in advisory opinions: the distinction between administrative and legislative roles (planning commissions versus city councils), the vested‑rights rule that locks in the regulations that apply when an application is "complete," and the pending‑ordinance rule that can allow a jurisdiction to hold an application for up to 180 days after public notice of an intended ordinance change.
He also addressed interpretive practice. Courts favor plain‑language readings of local codes and, where a substantive provision is ambiguous, generally construe the code in a way that favors private property rights. Purpose or preamble language may clarify ambiguous substantive rules but cannot override explicit code provisions, he said.
On discretionary approvals, Plaine urged jurisdictions to provide articulated decision criteria. "If your code gives discretion, there should be standards to direct the inquiry," he said, noting that discretionary administrative decisions still must be supported by "substantial evidence" in the record.
Commissioners pressed Plaine about nonconforming uses and structures. He summarized the difference: nonconforming uses can be presumed abandoned after one year of nonuse unless local code provides otherwise; noncomplying structures may be reconstructed if involuntarily destroyed, but voluntary demolition or extended neglect can terminate nonconforming status.
Plaine also warned that some recently enacted state statutes limit local authority over certain design standards and accessory dwelling units. He recommended keeping local code current and noted exceptions such as wildland‑urban‑interface requirements and development agreements, which can allow tailored project standards when negotiated with a developer.
"If you have questions about how a particular FCOS provision has been applied elsewhere, you can look at other jurisdictions that have implemented it and at our advisory opinions," Plaine said, encouraging the commission to borrow tested language rather than reinvent the wheel.
The presentation ran into a question period in which commissioners asked about staffing and fees (Plaine said his office has three attorneys and a secretary; the advisory‑opinion filing fee is $150), the identity and role of a contract appeal authority (Craig Hall was named as the appeal authority used by neighboring jurisdictions), and how to balance discretionary waivers with predictability to reduce appeals.
The commission did not take any formal votes during the presentation; commissioners indicated they would follow up with staff to consider code updates and outreach based on matters raised in the briefing.