Schultz v. Averett et al

Filing 161

ORDER ADOPTING REPORT AND RECOMMENDATIONS ; denying 86 Motion for Partial Summary Judgment; denying 107 Motion for Partial Summary Judgment; denying 110 Motion for Partial Summary Judgment; granting 111 Motion for Summary Judgment. Signed by Judge Jill N. Parrish on 5/18/2020. (nl)

Case 2:15-cv-00720-JNP Document 161 Filed 05/18/20 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
CHARLES SCHULTZ,
Plaintiff,

ORDER ADOPTING REPORT AND
RECOMMENDATION

v.
MICHAEL AVERETT, HEATHER
BATEMAN, KASEY BATEMAN, JAY
BINKERD, JONATHAN BLOTTER,
ERIC BUNKER, LYNN CRISLER,
LAMBERT DEEGAN, MICHAEL
DUGGIN, JOHN GLODOWSKI, DIANE
GROSE, DANIEL HARVATH, KIM
NORRIS, ED PRESSGROVE, LANCE
TURNER, PAM SKINNER, LYNNE
SCHINDURLING, FRANCIS SMITH,
GARY WALTON, GARY WEIGHT, THE
TOWN OF DANIEL, and JOHN OR JANE
DOES 1 through 10,

Case No. 2:15-cv-00720-JNP-EJF
Judge Jill N. Parrish

Defendants.
The defendants moved for summary judgment on all of plaintiff Charles Schultz’s claims
in this action. [Docket 111]. Schultz also filed three motions for partial summary judgment in his
favor. [Docket 86, 107, 110]. Magistrate Judge Furse issued a Report and Recommendation that
this court grant the defendants’ motion and deny Schultz’s motions. [Docket 157].
Schultz filed an Objection to the Report and Recommendation. The court reviews de novo
the portions of the Report and Recommendation to which Schultz has objected. FED. R. CIV. P.
72(b)(3). The court OVERRULES Shultz’s objections and adopts the Report and Recommendation
in full. Accordingly, the court GRANTS the defendants’ motion for summary judgment and
DENIES Shultz’s motions for summary judgment.

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LEGAL STANDARD
Summary judgment is appropriate when “the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P.
56(a). The movant bears the initial burden of demonstrating the absence of a genuine dispute of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has met this
burden, the burden then shifts to the nonmoving party to “set forth specific facts showing that there
is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary
judgment on a claim is required if the party that bears the burden of proof at trial “fails to make a
showing sufficient to establish the existence of an element essential to that party’s case.” Celotex,
477 U.S. at 322.
ANALYSIS
I.

FRAUDULENT OVERCOLLECTION OF TAXES
Shultz alleges that the Town of Daniel committed fraud by failing to inform him that it had

rezoned the property he owned in a way that reduced his tax obligation to Wasatch County. Judge
Furse recommended that the court grant summary judgment on this claim because Shultz failed to
cite any evidence suggesting that the town had knowledge of any inaccuracy in the taxation of his
property. Thus, there is no evidence of a knowing withholding of information—a necessary
element of a fraud by omission claim.
Shultz’s Objection to the Report and Recommendation is peppered with allegations that
Judge Furse failed to view disputed facts in the light most favorable to himself and that she failed
to properly apply the summary judgment standard. But Shultz fails to cite any evidence that would
contradict evidence proffered by the Town of Daniel that it is not involved in the county’s
assessment of property taxes. Indeed, on page 40 of his Objection, Schultz apparently

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acknowledges that summary judgment should be granted on his fraud claim based upon the
overcollection of property taxes. He states: “[T]he Plaintiff concedes that his cause of action to
require the defendant pay him the money he was over charged [sic] on his taxes should be
dismissed.” Accordingly, the court adopts the portion of the Report and Recommendation granting
summary judgment on this claim.
II.

VIOLATIONS OF DANIEL TOWN CODE SECTIONS 8.22.07 AND 8.22.08 AND
UTAH CODE SECTION 10-9a-511(3)(A)
Schultz alleges in his second, third, and fourth causes of action that the Town of Daniel

effectuated an unlawful taking of property by violating Daniel Town Code sections 8.22.07 and
8.22.08 and Utah Code section 10-9a-511(3)(A). He asserts that the town violated these provisions
by rezoning his property and by refusing to let him rebuild on the property a home that had burned
down. Judge Furse recommended granting summary judgment on these causes of action because
Schultz now concedes that the town never rezoned his lot, that he never applied to rezone the lot,
and that he never applied for a building permit. Thus, the Town of Daniel made no final land use
decision that could be judicially reviewed. See UTAH CODE § 10-9a-801(2)(a) (permitting judicial
review of “a final decision made in the exercise of or in violation of the provisions of this chapter”).
Nor did Schultz exhaust the town’s land use appeals process. Id. § 10-9a-701(2) (“As a condition
precedent to judicial review, each adversely affected person shall timely and specifically challenge
a land use authority’s decision, in accordance with local ordinance.”).
In his Objection, Schultz concedes that he never filed an application to rezone his property
and that he never applied for a building permit. But he asserts, without citing the record, that he
made a written request to the clerk of the Town of Daniel for a rezoning request form and that he
received no response. Objection pp. 8–9. Shultz argues that he could not apply to have his property
rezoned because the clerk did not respond to his request for a form. But Schultz does not cite any
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caselaw supporting the proposition that a single unanswered request for a form can substitute for
a final land use decision and an administrative appeal from such a decision.
Schultz also argues at length that he never abandoned his right to rebuild a home on the
property, Objection pp. 18–26; that his property had become a “Lot of Record” as a matter of law,
Objection pp. 26–32; and that building a home on his property is a permissible “nonconforming
use” under Utah law, Objection pp. 37–40. But these arguments must be made to the Town of
Daniel in the context of a land use request, pressed to a final decision, and, if necessary, raised in
an administrative appeal. Schultz may not assert these claims for the first time in this court.
Accordingly, the court agrees with Judge Furse that summary judgment is appropriate on
Schultz’s second, third, and fourth causes of action for violation of various land use municipal
ordinances and state statutes. This court does not have jurisdiction to hear these claims because
Schultz never obtained a final land use decision or pursued an administrative appeal.
III.

DUE PROCESS CLAIM UNDER THE UTAH CONSTITUTION AND TAKINGS
CLAIMS UNDER THE UTAH AND U.S. CONSTITUTIONS
Schultz asserts in his fifth cause of action that the Town of Daniel violated his due process

rights under the Utah Constitution by rezoning his property without notice such that he could no
longer rebuild the home that once stood on the lot. He also claims in his sixth and eighth causes of
action that the Town of Daniel rezoned the property in a way that constituted an unlawful taking
under the Utah and U.S. Constitutions. Judge Furse recommended granting summary judgment on
these claims because the record shows (and Schultz concedes) that the town did not rezone his
property. Wasatch County rezoned the property before the Town of Daniel was formed in 2006.
Because it is undisputed that the Town of Daniel did not take the action that Shultz complains of
in these causes of action, the town is entitled to summary judgment.

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In his Objection, Schultz argues at length that the Report and Recommendation is in error
because Wasatch County should be held liable for rezoning his property without giving notice.
Objection pp. 32–37. But Wasatch County is not a party to this lawsuit. Shultz clearly pled these
causes of action against the Town of Daniel. Thus, the court overrules Schultz’s objections and
grants summary judgment on the fifth, sixth, and eighth causes of action.
IV.

EQUAL PROTECTION UNDER THE UTAH AND U.S. CONSTITUTIONS
Schultz’s seventh cause of action alleges that the Town of Daniel and Eric Bunker

“arbitrarily and capriciously interpreted, applied and enforced the zoning ordinances of the Town
of Daniel in [a] way that unlawfully discriminates against [himself] in violation of Section 1 of the
14th Amendment to the Constitution of the United States of America, and in violation of Article I,
Section 24 of the Constitution of Utah.” This cause of action is based upon his assertion that the
Town of Daniel granted variances to the zoning laws to Schultz’s neighbors but not to him. Judge
Furse recommended that this court grant summary judgment on this claim because it is undisputed
that Schultz never applied to have his land rezoned or for a building permit. Since Shultz never
asked for an exception to the zoning laws, there is no basis to his claim that he was treated
differently.
As noted above, Schultz asserts in his Objection that he made a written request to the clerk
of the Town of Daniel for a rezoning request form and that he received no response. Objection pp.
8–9. He argues that he could not apply to have his property rezoned because the clerk did not
respond to his request for a form. But Schultz does not cite any caselaw supporting the proposition
that a single unanswered request for a form is sufficient to make out a claim that the defendants
applied the law to him in a way that infringed upon his equal protection rights. The court overrules
this objection and grants summary judgment on Shultz’s Seventh Cause of action.

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CONCLUSION
For the above-stated reasons, the court rules as follows:
1) The court ADOPTS IN FULL the Report and Recommendation. [Docket 157].
2) The court GRANTS the defendants’ motion for summary judgment. [Docket 111].
3) Because the court resolves all of Shultz’s claims in favor of the defendants, the court
DENIES his motions for partial summary judgment. [Docket 86, 107, 110].
SO ORDERED May 18, 2020.
BY THE COURT:

______________________________________
JILL N. PARRISH
United States District Judge

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