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Utah property-rights ombudsman briefs Emigration Canyon planners on advisory opinions and legal risks
Summary
Richard Plene, an attorney with the Utah Property Rights Ombudsman’s office, told the Emigration Canyon planning commission that the office issues nonbinding advisory opinions meant to reduce litigation — and warned courts may award attorney fees when litigation proceeds contrary to those opinions.
Richard Plene, an attorney with the Utah Property Rights Ombudsman’s office, told the Emigration Canyon Planning Commission that his office issues nonbinding advisory opinions to help resolve land-use and eminent-domain disputes without costly litigation. "We write an opinion as if we were a judge," Plene said, explaining the advisory-opinion process and its purpose.
Plene traced the office’s origins to 1997 and described its statutory expansion in 2006 to include land-use advisory opinions. He said the opinions are not binding but can guide parties and courts: if a court reaches the same conclusion as the ombudsman, the court may award attorney’s fees or other remedies when a party litigates contrary to the advisory opinion. "If we issue an opinion and the court rules on the same issues the same way we did, the court could award attorney’s fees," he said.
The ombudsman’s office accepts requests from property owners and, in some circumstances, other potentially "aggrieved" parties with standing; a local-government request can pause an application, Plene explained, while a property-owner request generally does not stay an application. Plene also noted a $150 filing fee for advisory-opinion requests and said the office’s primary funding comes from the state general fund.
Plene emphasized that advisory opinions are intended as dispute-resolution tools rather than replacements for courts. He urged jurisdictions to use clear, plain-language ordinances to reduce ambiguity that favors applicants: "If your code doesn't clearly say this is something you can't do, then there's no reason why they can't do it," he said, summarizing the plain-language approach courts use.
Why it matters: Advisory opinions can shape litigation strategy and local decisions. For planning commissioners and staff drafting or updating ordinances, Plene’s guidance means clearer code language can reduce appeals and legal exposure. The office’s small filing fee does not fund operations; Plene said the service is primarily supported by the legislature.
Next steps: Commissioners asked staff to consider when it would be appropriate to request advisory opinions for controversial applications and to share guidance on the filing process.
