IN THE THIRD JUDICIAL DISTRICT, TOOELE COUNTY STATE OF UTAH GARY WALKER, an individual, and SCOTT HUNTER, an individual, yep Plaintiffs, Case No.: 180301487 vs. TOOELE COUNTY, a Utah unit of local Judge: DIANNA M. GIBSON government; and SOUTHSIDE GRAVEL, LLC, a limited liability company, Defendants. Before the Court is Defendant Southside Gravel, LLC’s (“Southside”) Motion for Partial Summary Judgment on Plaintiffs’ Third Claim for Relief (“Southside’s Motion”), Defendant Tooele County’s (“Tooele County”) Motion for Summary Judgment (“Tooele’s Motion”), and Plaintiffs’ Cross-Motion for Summary Judgment (“Plaintifis’ Motion”). Having reviewed the parties’ motions and related oppositions thereto and having heard oral argument on the matter on February 5, 2020, and on July 9, 2020, the Court makes the following Ruling and Order: Plaintiffs’ Cross Motion for Summary Judgment is granted. The Court concludes that, as a matter of law, the Tooele County Commission’s approval and execution of the Southside Agreement was illegal contract zoning. Tooele’s Motion and Southside’s Motion are denied for the reasons stated below. This Court’s decision is based on the process used by the Tooele County Commission. This Court does not decide, as a matter of law, the issues of non-conforming use, abandonment and the applicability of the diminishing assets doctrine.BACKGROUND PlaintiffS are residents and homeowners of a completed subdivision (“Homeowners” or Plaintiffs"), known as the Benches at South Rim, located near the City of Stockton, in Tooele County (“Subdivision”), Defendant Southside Gravel, LLC, (“Southside”) is the landowner of approximately 176 undeveloped acres of land located at the south end of the Subdivision (“Property”), which Property it acquired from the developer of the Subdivision. The Property is divided into two parcels, identified as Property ID nos. 6-23-26 (88.03 acres) and 6-23-28 (88.36 acres). Property ID No. 6-23-26 now includes a 10-Acre Parcel (originally with Property ID No 06-23-11) that was used as a gravel pit. The Subdivision developer utilized the 10-acre parcel as temporary gravel pit, for the sole purpose of developing the Subdivision. Pursuant to the Development Agreement for L&B Development Company, Inc., The Benches at South Rim Project (“Development Agreement”), the 10-acre gravel pit was to be closed, after the Subdivision was completed. The Subdivision was completed in 2009. Southside, as the current owner of the Property, asserts it has the right to conduct commercial gravel operations on the Property, based on representations made by Tooele County and asserting arguments of estoppel and the doctrine of diminishing assets. To avoid litigation and resolve the pending dispute with Southside, the Tooele County Commission (“Tooele County Commission” or “Commission”) agreed to enter into a 25-year agreement with Southside (Southside Agreement” or “Agreement”), by which Southside received Tooele County's authorization to conduct commercial gravel operations, as a non-conforming use, on the entire 176-acre parcel of Property, phased in in 25-acre increments. Gravel operations, however, ‘would not be conducted on the 10-acre parcel where the original gravel pit was located, per the Development Agreement, and certain operational restrictions would be put in place. TooeleCounty asserts that the Southside Agreement is beneficial in that it provides for operational restrictions that it would not otherwise receive if it pursued litigation and lost. The Homeowners filed their Amended Complaint on February 22, 2019, seeking declaratory judgment that the Tooele County Commission engaged in illegal contract zoning by centering the Southside Agreement, violated the Homeowners due process rights and that the decision is arbitrary and capricious. Plaintiffs also requested injunctive relief preventing Southside from using the Property for commercial gravel operations and enforcing the Development Agreement against Southside as a restrictive covenant running with the land. Tooele County and Southside (collectively “Defendants” disagree, asserting that the Tooele County Commission (“Commission”), as Tooele County's land use authority, has the authority to settle any potential litigation against the County and that such decisions are and should be given substantial deference. LEGAL STANDARD ON SUMMARY JUDGMENT Summary judgment is appropriate “if the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.” URCP. 56(a). The Court will not weigh the facts; instead, it only determines “whether a dispute of material fact exists, viewing the facts and all reasonable inferences to be drawn therefrom in a light most favorable to the nonmoving party.” Pigs Gun Club, Inc. v. Sanpete Cty, 2002 UT 17, 24, 42 P.3d 379 (citations omitted). REVIEW OF TOOELE COUNTY. ION'S DECISION This is an appeal from the Tooele County Commission's decision to approve the Southside Agreement.' While Tooele County characterizes this Agreement as merely a " Both parties seek judicial review under CLUDMA (the “County Land Use Decision Management Act”). Section 17-270-801(1) of the Utah Code provides that “{nJo person may challenge in district court a land use decision until 3resolution of a legal dispute and the decision to enter into a contract/settlement agreement, it is, more than that, The Toole County Commission’s approval of the Southside Agreement was a land use decision. By granting “legal non-conforming use” status to conduct commercial gravel operations on the entire 176-acre Property, the Agreement operates to grant Southside’s previously denied 2016 application to rezone the Property to allow for commercial gravel operations, but without the statutory obligations that come with such a rezone. The procedural posture is this: the Tooele Planning Commission voted unanimously to deny Southside’s application to rezone the RR-5 residential property to MG-EX to allow for commercial gravel mining and extraction. Southside appealed to the designated appeal authority, the Tooele County Commission, but later withdrew its appeal. Between May 2017 and July 2018, Tooele County (including members of the Commission) and Southside engaged in private discussions that produced the Southside Agreement. During the July 31, 2018 public hearing, counsel for Tooele County stated that the Agreement represents the direction of the Commission. Pls.’ Opp’n to Tooele’s Mot., Ex. 2A, Appx. 190, July 31, 2018, Hr’g Tr. 61:2-12. During the August 21, 2018 public meeting, the Tooele County Commission voted to approve the Southside Agreement, but it did not state the reason for doing so, other than it was “a compromise that’s been achieved in a less-than-ideal situation.” Tooele’s Mot., Ex. 2, Aug. 21, 2018, Hr’g Tr. 30:7-20 (reflecting a statement by Commissioner Milne). The Commission was acting as an “appeal authority” when it, in effect, reversed the Planning Commission’s recommendation and “settled” the land use dispute with Southside, by that person has exhausted the person's administrative remedies as provided in Part 7, Appeal Authority and Variances, if applicable.” However, the clear language of the statute exhaustion of remedies is discretionary, especially as related to this underlying matter, whereby the Court is asked to determine whether Tooele County had the authority to settle a dispute over a land use regulation, by contract. See also e.g. Suarez v. Grand Cty.,2012 UT 72,4 19, 296 P.3d 688 (explaining in relevant part that because the citizens were challenging the county council's legislative action as opposed to an administrative act, they were not required to exhaust statutory admini remedies before bringing their court challenge). In addition, as represented by Plaintiffs’ counsel, the Homeowners” attempt to administratively appeal the decision was rejected. 4contract. Because this is a land use decision, the Commission's decision is presumed valid, and this Court must uphold that decision unless it is shown to be arbitrary and capricious or illegal. See Utah Code Ann. §17-27a-801(3)(b)(), (i)(A)(B). A decision is arbitrary and capricious if it is “not supported by substantial evidence in the record.” Id.at §17-27a-801(c)(i). A decision is illegal if the decision is “based on an incorrect interpretation of a land use regulation” or “contrary to law.” Jd, at §17-27a-801(c)(ii)(A\B). THE RECORD The County Land Use Development Management Act (“CLUDMA”) provides, in relevant part, that “an appeal authority” shall “act in a quasi-judicial manner” and “serve as the final arbiter of issues involving the interpretation or application of land use ordinances.” Utah Code Ann, §17-27a-701(3)(a)(i) (ii) (emphasis added). The appeal authority can resolve facts and determine the correct interpretation of land use regulations, id. at §17-27a-707(1)-(4), and, in certain circumstances, it can review a matter de novo, without deference to the land use authority’s determination of factual matters. Id, at §17-27a-707(2). CLUDMA states that “[a]n appeal authority’s land use decision is a quasi-judicial act.” Jd, at §17-27a-707(5). Therefore, an appeal authority is required to “respect the due process rights of each of the participants.” Id. at §17-274-706(2). On an appeal to the district court, the Tooele County Commission is required to “transmit to the reviewing court the record of its proceedings, including its minutes, findings, orders and, if available, a true and correct transcript of its proceedings.” Id. at §17-272-801(7)(a); Morra v. Grand County, 2010 UT 21, {9 32, 230 P.3d 1022 (holding that CLUDMA “requires transmission of a record to the reviewing court in all cases—legislative or administrative— where a record exists[.]” (emphasis added)). On June 17, 2020, Tooele County transmitted theRecord of the Commission’s proceedings. On June 23, 2020, the Homeowners objected, arguing that the record transmitted was both over and under-inclusive. The Homeowners argued that the record should not include documents that were not also made available to the Homeowners. The Court agrees. Quasi-judicial actions require transparency. The Homeowners also argued that it should include the three affidavits that were improperly excluded from consideration by the Commission during the August 21, 2018, meeting, because the presentation of evidence “had closed.” The Court agrees that the affidavits were rejected improperly.” The record transmitted by Tooele County is also under-inclusive in that it does not contain the full record of the proceedings, specifically the record of the proceedings before the Planning Commission (which recommended that Southside’s zoning application be denied). The Commission, as the land use appeal authority, was required by statute to act in a quasi-judicial capacity and to ensure due process. The Commission failed to comply with its statutorily required obligation. 2 During the August 21, 2018, meeting, the Homeowners attempted to present the Commission with three affidavits from Glen LaMar Russel, Janet A. Wyman and Lacey Russell Brown to show that the non-conforming use at issue hhad been abandoned. Tooele County argues that these affidavits should not be considered part of the record below ‘because they were presented to the Commission during the August 21, 2018, but after the close of evidence. As such, they were properly rejected, and should not be considered part ofthe record of the proceedings under Utah Code Section!7-274-801(8)(a)ii). The Court reviewed the public notice for the July 2018 hearing (the notice for the August 2018 meeting was not submitted by either party), and reviewed the transcripts of both. Nowhere does ‘the Commission publish when evidence can be properly presented or when the presentation of evidence closes. Defendants argue that when the Commission “tabled” the matter during the July 2018, hearing, that explicitly closed the public hearing and ended the presentation of evidence. Tooele’s Reply & Opp'n to Pls’ Cross-Mot., 10 (reflecting Tooele's response to Plaintiffs’ fact 54). Tooele County adds “there was no indication that the public ‘hearing ofthe issues would continue.” /d. Likewise, there is no indication that “tabling” means no additional information could be presented to the Commission or that presentation of evidence was forever closed. It isthe ing in a quasi-judicial capacity —to communicate its process for its public hearings. ‘There is no clear communication that concerned citizens would not be able to present any additional information after July 31, 2018. Further, precluding concemed citizens from speaking during the August 21, 2018, meeting, while simultaneously allowing Tooele County to continue presenting its arguments and position, does not guarantee all participants “due process.” As such, the Court concludes that the affidavits were improperly excluded from consideration by the Commission; therefore, the affidavits are part of the record of the proceedings below. The Court notes that this ruling does not operate to conclude that gravel operations had in fact ceased or that the affidavits establish legal abandonment as a matter of law. The undisputed fact is that the Homeowners attempted to present evidence to support that gravel operations had ceased between 1966 and 1978, but the evidence was rejected, and appears to not have been considered by the Commission.For the reasons stated above, a true record of all the proceedings below does not exist, and was not transmitted to this Court, Therefore, this Court’s review of the Tooele County Commission’s land use decision is not limited to the record of the proceedings, as submitted by Tooele County.? Compare Utah Code Ann, §17-272-801(8)(a) (“If there is a record, the district, court’s review is limited to the record provided by the land use authority or appeal authority, as, the case may be[.]”). ‘THE MATERIAL UNDISPUTED FACTS The undisputed facts recited by the Court below reflect the factual and procedural history related to the Property and the Gravel Pit at issue.* 1. Prior to 1966, Martell, Authenia and Bernice Russell (the “Russells”) owned a large tract of land in Tooele County, which included a gravel pit that covered several acres. > Ifthe Court were to limit its review to the record, as submitted by Tooele County, Tooele County's decision to approve the Southside Agreement is also arbitrary and capricious. The Court cannot conclude, based on the transcripts ofthe July 31, 2018, hearing and August 21, 2018, meeting and the select few documents presented to the Court, that there is substantial “evidence” to support the decision to approve the Southside Agreement and grant Southside a 25-year contractual right to conduct commercial gravel operations on the entire 176 acre Property. The Court agrees that the Tooele County Commission may not be bound by strict rules of evidence, and that itis typical for lawyers to proffer evidence during these proceedings. However, there is a significant difference between “proferring” evidence and making arguments. Tooele County largely presented argument. In addition, Tooele County argues that the Homeowners’ failed to satisfy the burden to “marshall the evidence in support of the decision and show, despite the supporting facts ... the findings and decision are not supported by the evidence.” See Patterson v. Utah Cnty. Bd. Of Adjustment, 893 P-2d 602, 604, n. 7 (Utah Ct. App. 1995). The Court notes that the decision made was to approve the Agreement. No specific facts were found. No specific legal conclusions were reached. It is difficult to marshall evidence in support of an unexplained decision to approve the entire Agreement. Further, the Court notes, the record contains no evidence, proffered or otherwise, to support that commercial operations were ever conducted on the entire 176 acre parcel. It may be that such evidence exists and Southside presented it privately to the Commission. It is just not part of the record. To the contrary, there is the undisputed, ‘material fact, that Southside certified to the Tooele County Assessor in 2016 that the entire 176 acre Property had been used for agricultural purposes for the previous two years, when it successfully obtained its “greenbelt” tax designation. Neither Southside nor Tooele County explains ~ either below or before this Court - why this fact does not, asa matter of law, prove that there is no legal nonconforming use to support any gravel operations, not to mention commercial gravel operations. “-The Homeowners presented its statement of facts in support of its Cross-Motion for Summary Judgment. See Homeowners’ Mem. in Opp'n to Tooele County's Motion for Part. Summ. J.& In Supp. of Pls.’ Cross-Mot. for ‘Summ J,, 16-26. With the exception of challenging the inclusion of the three affidavits, Tooele County (and Southside) did not dispute those facts. See Combined Reply Mem. Supporting Tooele County's Mot. for Summ. J. & Opposing Pls. Cross-Mot. for Summ. J, 6-11. As such, the Court recites them, in relevant part, here. 72. In 1966, Tooele County zoned the Russells’ land, including the gravel pit and the land surrounding it, as MU-40. The MU-40 zoning designation allowed for gravel extraction, but only if a conditional use permit was obtained from the Tooele County Planning Commission (‘Planning Commission”). 3. Tooele County's zoning ordinances in place at that time (which are substantially similar to current zoning ordinances), a landowner could continue the operation of a gravel pit that existed before the zoning ordinance took effect, without a conditional use permit, as a legally non-conforming use. But, if gravel extraction operations ceased for more than one year, the use would be illegal and a condition use permit would be required to resume operations. 4. On January 27, 1978, Tooele County purchased a 10-acte parcel (“10-Acre Parcel”) of property, located in a Multiple Use 40-Acre Lot zone (“MU-40"), which included all or the majority of, a pre-existing gravel pit (“Gravel Pit”). 5. The Gravel Pit had not been used as such for at least two consecutive years. 6. The MU-40 zoning designation only allowed gravel extraction with a conditional use permit. 7. In October 1996, the County applied to the Tooele County Planning Commission (‘Planning Commission”) for a Conditional Use Permit (“1996 CUP”) to allow it to operate the Gravel Pit on the 10-Acre Parcel of land. 8 On October 16, 1996, the Planning Commission approved the application for the 1996 CUP, authorizing gravel operations “on a temporary basis for county road department use only,” “not near any residential area,” and “in compliance with all relevant zoning ordinances.” ‘The CUP was valid for 5 years from the date of approval.9. On December 29, 1997, South Rim, L.C. (“South Rim”) acquired the property surrounding the 10-Acre Parcel and Gravel Pit. 10. The County’s extraction of gravel exceeded the east and west boundaries of the 10-Acre Parcel and did encroach onto the property acquired by South Rim. 11. On January 6, 1998, via Ordinance 98-1, Tooele County amended the official zoning map and changed the zoning designation of the 10-Acre Parcel and the South Rim property from MU-40 to Rural Residential 5-Acre Minimum zone (“RR-S”), which included the 10-Acre Parcel approved for gravel extraction in October 1996. 12, The RR-S zoning designation did not permit gravel pit operations as a permitted conditional use. 13, On March 8, 2001, South Rim conveyed the property to the east and west of the Gravel Pit to L&B Development Company, Inc. (“L & B”). 14. On July 3, 2001, South Rim conveyed the property now identified as “The Benches at South Rim—Phase 1” to L & B. 15, On July 3, 2001, Tooele County and L & B entered into the “Development Agreement for L&B Development Company, Inc., The Benches at South Rim Project” (Development Agreement). The Development Agreement included and acknowledged that the Gravel Pit had been used by the County as a county gravel pit, and that the Gravel Pit was encroaching onto L&B’s property. 16. Under the Development Agreement, the County agreed to transfer the 10-Acre Parcel to L&B at no cost; L&B would be allowed to operation the Gravel Pit to improve the roads within the project (development of a subdivision) and for improvements made to Silver Avenue; and L&B agreed to close the Gravel Pit upon completion of the project.17, The Development Agreement contained specific language regarding the binding effect of the agreement: “This Agreement shall inure to the benefit of and be binding upon the Developer and its successors and assigns, This Agreement shall likewise be binding upon any governmental entity that succeeds the County in any respect as to jurisdiction over the Property.” Pls.’ Mot,, Ex. List 1A, Exs. to Compl., Ex. 7 at p. 37 (reflecting Appx. 055). 18. The Development Agreement was recorded on July 5, 2001, in the Tooele County Recorder's Office on the 10-Acre Parcel, the land to the east and west of the 10-Acre Parcel and on the land that ultimately became the completed subdivision. 19. On or about August 28, 2001, Tooele deeded the 10-acre parcel, identified as ID no. 6-23-11, to South Rim, The warranty deed expressly stated that the conveyance was made “pursuant to the Development Agreement.” Id, at Ex. 8 at Appx. 062. 20. After that conveyance, South Rim and/or L&B excavated gravel as prescribed in the Development Agreement, for use in the development of the subdivision. 21. The subdivision was completed on or about September 7, 2009. 22. In developing the subdivision, South Rim and/or L&B conveyed lots to third parties, including the homeowners who are the Plaintiffs in this action, 23. Five years after the subdivision was completed, South Rim made an inquiry regarding the status of the 10-Acre Parcel and, in particular, whether it could be used for gravel pit operations. 24. On October 21, 2014, the Tooele County Planner, Blaine K. Gehring, issued a letter to South Rim, stating that Tooele County Planning staff “reviewed the status of your property (ID #06-023-0-0011) and found it to be a legally grandfathered use as a sand and gravel excavation use” and requested that South Rim submit a 5-year operation plan, consistent with theToole County Land Use Ordinance (“TCLUO”). Id. at Ex. 9 at Appx. 064. Parcel No. ID #06- (023-0-0011 is also referred to as Parcel No. 06-23-11. 25. — In January 2015, Southside (not the owner of the property) submitted a 5-year operation plan to the Tooele County Planner. 26. In the 5-year operation plan, Southside incorrectly represented that the 1996 CUP ‘was for a “permanent commercial operation” and that it covered multiple parcels (not just the 10- Acre Parcel) and that it encompassed a “pit area” of “approximately160 acres.” Id. at Ex. 10 at Appx. 066. 27. On February 19, 2015, Tooele County approved Southside’s 5-year gravel operation plan of a “permanent commercial operation” of 160-acres of properties, ID nos. 6-23- 26 and 6-23-28, rather than on the 10-acres, ID no. 06-023-0-0011 identified in Mr. Gehring’s October 2014 letter. ° 28. Between February and March 2016, South Rim consolidated the 10-Acre Parcel (No. 06-23-11) into the property that it owned to the east of the 10-Acre Parcel, creating one parcel consisting of approximately 88.03 acres, identified as Parcel No. 6-23-26. 29. On April 5, 2015, South Rim conveyed two parcels to Southside; Parcel No. 6-23- 26 and Parcel No. 6-23-28, the 88.36-acre parcel to the west of the original 10-Acre Parcel. 30. Post-conveyances, Southside became the owner of approximately 176 acres of property, original 10-Acre Parcel, in addition to the surrounding property to the east and west of the 10-Acre Parcel and the Gravel Pit (the “Southside Properties”). 31. On May 2, 2016, Southside ~ through Mr. Jay Harwood — applied to the County Assessor for Assessment and Taxation of Agricultural Land (aka a “greenbelt” tax designation), * Notably, this approval appears to have been issued in violation of Tooele County Land Use Ordinance (*TCLUO", ch.7-12 (explaining in relevant part that an expansion “shall not be allowed” unless a new CUP is. made and approved); see also TCLUO ch. 5-1, 5-9(4), 5-11. ncertifying that the Southside Properties, Parcel Nos. 6-23-26 and 6-23-28, had been devoted exclusively to agricultural use for at least two successive years immediately preceding the tax year for which the greenbelt designation was requested. 32. On May 4, 2016, the greenbelt tax designation was approved by the Tooele ‘County Assessor. 33. On September 8, 2016, the Tooele County Attorney's office issued a letter to Southside, reflecting research done by outside counsel regarding the Gravel Pit. The letter explained, in relevant part: (i) the 1996 CUP was still in effect, (ii) the CUP only applies to the original 10-acres and does not extend to the parcel created when the 10-acres was merged with surrounding land thereby becoming 88.03 acres, and (iii) with regard to the 6 acres over which the gravel pit has extended, current zoning does not allow for gravel pit operations, therefore, extraction may continue only as a non-conforming use, but may not be extended horizontally. 34. On October 11, 2016, Southside applied to the Planning Commission to amend the zoning ordinances to change the zoning designation for the Southside Properties from RR-5 to MG-EX (Mining, Quarry, Sand and Gravel Excavation). 35. On November 29, 2016, an advisory opinion was issued by the State of Utah's Office of the Property Rights Ombudsman.® The Advisory Opinion provided an analysis, and concluded among other things, that the 1996 CUP did not expire, but with the zoning change, it became illegal. It further concluded: “At that point, the portion of the 10 Acre Parcel actually used as a gravel pit became a legally nonconforming use, and may still be so today, unless While itis undisputed that the Ombudsman’s office issued two opinions in November 2016 and May 2017, the ‘opinions and legal conclusions are not binding on any party to, nor admissible as evidence in, a dispute involving land use law. Utah Code Ann. §13-43-206 (11) (noting an exception only for recovery of costs and attorney fees). ‘Accordingly, the content ofthe advisory opinions are not presented here as undisputed facts and the Court gives no ‘weight tothe legal conclusions. The Court includes the advisory opinions because they are part ofthe history involving these parcels and because, during the July 31, 2018, public hearing, Tooele County specifically referred to ‘and relied on them as binding authority to support is recommendation to approve the Southside Agreement. 12abandoned, . . . The active portion of the Pit outside of the 10 Acre Parcel may also be a legally nonconforming use if it has not been abandoned.” Pls.’ Mot., Ex. List 2B, Ex. 8, Appx. 318. 36. On December 14, 2016, the Planning Commission voted 7-0 to recommend to the Commission that the application for rezoning be denied. 37. In the Tooele County Planning Commission Minutes of the December 14, 2016 Meeting, it is reported that Southside — through Mr. Harwood — “gave a history of the parcel” and “explained that the gravel pit has been in continuous use.”” Pls.’ Mot., Ex. List 1A, Exs. to Compl., Ex. 15, Appx. 086. 38, On May 24, 2017, another Advisory Opinion was issued by the State of Utah’s Office of the Property Rights Ombudsman regarding the doctrine of diminishing assets and the conditions in which a legal nonconforming gravel pit could expand beyond the physical boundaries in order to continue operations. The Advisory Opinion stated, among other things that legal nonconforming gravel pits may expand beyond their physical boundaries and still retain their legal use status. But, “the horizontal expansion is limited to the boundaries of the parcel(s) upon which the pit existed at the time the ordinance changed and the use became legally nonconforming. Even if [Southside] owns the adjacent land and/or boundaries have subsequently changed, the gravel pit cannot expand beyond the parcels as they existed at the time.” Id, at Ex. List 2B, Ex. 8, Appx. 325. In addition, the Advisory Opinion stated that “[nJo evidence of physical abandonment has been shown.” Jd. 39. On May 31, 2017, before the Planning Commission's recommendation could be considered by the Commission, Southside withdrew its rezoning application. 40. ‘The Commission, however, discussed and heard comment on the Gravel Pit at public meetings held on June 6, 2017, and July 18, 2017. Neither Tooele County nor Southside explained Southside’s inconsistent statements, made months apart. 1341. At the July 18, 2017, meeting, the Commission agreed unanimously to honor the Development Agreement and to require the closure of the Gravel Pit, upon completion of the subdivision. 42. After the July 18, 2017, meeting, concerned residents requested additional action from the Commission and/or Planning Commission to revoke the 1996 CUP. 43. No action was taken by the Commission or Planning Commission, but on November 6, 2017, the Tooele County Attorney’s Office, in an email to the Commission, explained that the 1996 CUP was no longer valid, because it was subsumed through the 1998 zoning amendment® and therefore, in 1998, the Gravel Pit became a non-conforming use, subject to local and state laws regarding non-conforming uses. 44. Sometime later, one or more members of the Commission conducted meetings with Southside, which culminated in the “Agreement Regarding Southside Gravel Operations” (the “Southside Agreement”). 45. On July 26, 2018, a Tooele County Commission Public Notice of Meeting and Agenda was issued giving notice of a meeting on July 31, 2018, The agenda included a notice of Public Hearing on Southside Gravel LLC’s Proposed Operations Plan and Agreement. 46. On July 31, 2018, the Tooele County Board of Commissioners, during the “open public hearing,” heard arguments from attomeys and the public regarding Southside’s proposed agreement. See Tooele County’s Mot., App. To Exs., Ex. 1, Tr. of Tooele County Bd. of Comm’ns’ Regular Meeting, July 31, 2018.. 47. On August 21, 2018, the Tooele County Board of Commissioners held a meeting. Tooele County provided additional justification as to why the Southside Agreement should be * At the time the 1996 CUP was approved, the Gravel Pit was zoned MU-40 (multiple use). In 1998, the property was rezoned to RR-S, residential 4approved. See id, at Ex. 2, Tr. of Tooele County Bd. of Comm’ns’ Regular Meeting, Aug. 21, 2018.,. 48. Concerned citizens and the public were not allowed to present any additional information, evidence or argument, despite their attempts to do so. Specifically, the Homeowners attempted to present three affidavits from Glen LaMar Russell, Janet A. Wyman and Lacey Russell Brown to show that the gravel pit operations had ceased for many years, and at least two consecutive years, between 1966 and 1978. 49. At the conclusion, the commissioners approved the Southside Agreement by a vote of 2 to 1. No reason was offered as to why, except that it was “a compromise that's been achieved in a less-than-ideal situation.” Jd. at 30:17-20. 29-33 (reflecting statement by Commissioner Milne). 50. That same day, Tooele County and Southside entered into an Agreement Regarding Southside Gravel Operations (“Southside Agreement”), granting Southside a 25-year agreement to conduct commercial gravel operations, on approximately 170-acres, as a legal non- conforming use. The Agreement further provides: a, gravel operations will not take place on the original 10-Acre Parcel where the original Gravel Pit exists; a, gravel operations will be conducted in 25-acre phases; b. the Southside Agreement runs with the land; ©. Southside “shall comply with all applicable local, state and federal laws and regulations governing” the gravel operations; 4. without any further zoning application, public notice or the requirement for approval of a conditional use permit, Southside may: (i) conduct crushing, 1sscreening, washing, and processing of sand and gravel; (ii) provide marketing, advertising, and sales to the public; (ii) operate, maintain, and repair trucking and processing equipment thereon; (iv) conduct such other activities and accessory or incidental uses related to the foregoing; and (v) further expand its operations to include hot mix asphalt and operation of a concrete batch plant. ©. The stated consideration for the County’s agreement regard the zoning concessions given to Southside is that it was in settlement of a dispute “regarding the applicability and enforcement of the County’s land use ordinance, regulations and requirements to Southside’s gravel operation.” See Pls.’ Mot., Ex. List 1B, Exs. to Compl., Ex. 21, Appx. 103-151. ANALYSIS Based upon the foregoing undisputed record, the Court considers whether Tooele County, Southside or the Homeowners are entitled to judgment as a matter of law. The sole issue before the Court: Was the Tooele County Commission's decision to enter into the Southside Agreement either arbitrary and capricious or otherwise illegal. The Court concludes the ‘Commission’s approval, and execution of, the Southside Agreement was illegal. It violates Utah Law and Tooele County ordinances. The Commission exceeded its authority in approving it. And, it is zoning by private contract. Tooele County and Southside characterize the Tooele County Commission's decision, in this case, as both the approval of a settlement agreement under Utah Code Ann. § 10-1-202 (2018) and as a “land-use decision” under Utah Code Ann. § 17-272-801 (2018). In either case, Tooele County argues that it has broad discretion to do both. The Court agrees. Utah municipalities enjoy broad powers, to pass ordinances, rules and regulations necessary to 16discharge its powers and duties, including the power to “‘sue and be sued,” to enter into contracts and to settle disputes. See Wallingford v. Moab City, 2020 UT App. 12, $18, 459 P.3d 1039 (citing Utah Code Ann. §§ 10-8-84(1), 10-1-202). Municipalities also have broad powers “to enact ordinances, resolutions and rules and enter into other forms of land use controls and developments agreements that they consider necessary or appropriate for the use and development of land within the municipality.” Jd (Utah Code Ann, § 10-9a-102(2)). These powers, however, are not limitless. Id. at $19. A municipality can only act within its delegated power; it may not take action prohibited by law or contrary to specific statutes and ordinances, Id, Inherent in the legislative power to enact, amend and apply zoning regulations is the requirement that impacted citizens receive due process, notice and have the opportunity to be heard. Id. at $24. 1, The Tooele County Commission Engaged in illegal Contract Zoning By Approving and Executing the Southside Agreement, The Southside Agreement ~ regardless of its characterization as a settlement of a legal dispute, a land use decision or confirmation of a non-confirming use — is an attempt to do by contract what can only be done by following statutory procedure. This is classic contract zoning. The mere fact that the Commission was settling a legal dispute does not legitimize what is otherwise an illegal act. In Wallingford v. Moab City, 2020 UT App. 12, 459 P.3d 1039, the Utah Court of ‘Appeals addressed for the first time the concept of contract zoning in Utah. “Contract zoning” is the practice of contracting around municipal zoning requirements. See id. at $22. Contract zoning occurs when “a local government contracts away it’s zoning power or obligates itself by advance contract to provide a particular zoning for the benefit of a private citizen.” Id. (quoting1 Am. Law Zoning § 9.21 (5 ed. 2008)).° “A municipality in exercising the power delegated to it must act within such delegated power and cannot go beyond it. Where the statute sets forth the procedure to be followed, no governing body, or subdivision thereof, has the power to adopt any other method of procedure.” /d. When statutory procedures to amend an ordinance are not followed, it is facially illegal. Jd. ‘The Wallingford court noted that contract zoning is illegal in most states; now, post-Wallingford, it is also recognized as illegal in Utah. See id. (holding that Moab City had committed the unlawful act of contract zoning). “{Clontract zoning is illegal whenever it arises from a promise by a municipality to zone property in a certain manner, i.e., when a municipality is either a party to a bilateral contract to zone or when a municipality is a party to a unilateral contract in which the municipality promises to rezone in return for some action or forbearance by the other contracting party.” Dacy, 1992- NMSC-066 at $ 16.. “[A] municipality's exercise of its police power to serve the common good and general welfare of all its citizens may not be surrendered or curtailed by bargain or its exercise controlled by the considerations which enter into the law of contracts.” Wallingford, 2020 UT App 12 at 4 23 (quoting Warner Co. v. Sutton, 274 N.J. Super. 464, 471, 644 A.2d 656, 659 (1994)) . Contract zoning has been described as an “ultra vires bargaining away of the police power.” Id, at | 22 (quoting Ford Leasing Dev. Co. v. Board of County Comm'rs, 186 Colo. 418, 528 P.2d 237, 240 (1974); citing Ada County v. Walter, 96 Idaho 630, 533 P.2d 1199, 1201 (1975) (stating county commissioners “do not have the authority to enter into an agreement which would constitute a change in the zoning”)). All proceedings to effectuate such a contract “are utterly void.” Warner Co. v. Sutton, 274N.J. Super. 464, 471, 644 A.2d 656, 659-60 (1994). 9 See also citing Dacy v. Vill. of Ruidoso, 1992-NMSC-066, | 16, 114 N.M. 699, 703, 845 P-2d 793, 797 (stating “contract zoning is illegal whenever it arises from a promise by a municipality to zone property in @ certain manner, ice, when a municipality is either a party to bilateral contract to zone or when a municipality isa party to a unilateral contract in which the municipality promises to rezone in return for some action or forbearance by the other ‘contracting party.")Illegal contracts are void ab initio, See generally e.g. Morales v. UBS Bank USA, No. 2:14-CV- 888-INP-BCW, 2016 WL 3746527, at *8, n.6 (D. Utah July 8, 2016) (“A contract is void ab initio if it seriously offends law or public policy.” (citing BLACK’S LAW DICTIONARY (10" ed. 2014). In this case, the Tooele County Commission overstepped its delegated power by approving the Southside Agreement and by failing to follow statutory procedure regarding zoning and land use, The Tooele County Commission is required to comply with both the County Land Use Development and Management Act (Utah Code Ann, § 17-27a-101 et seq.)(“CLUDMA” or “Act”) and the Tooele County Land Use Ordinances (“TCLUO"). County and municipal zoning authorities “are bound by the terms and standards of applicable zoning ordinances and are not at liberty to make land use decisions in derogation thereof.”"” There is no statute or ordinance that allows for contract zoning. Both CLUDMA and the TCLUO state that land use regulations may only be enacted by ordinance and must be consistent with the purposes of CLUDMA. Utah Code Ann. § 17-272-501(1), (3); TCLUO ch. 3-7(2). Both provide a process by which land use regulations, and amendments thereto, may be enacted, and both require the legislative body to comply with it. 1d. at § 17-27a-02, -503(2); TCLUO, ch. 3-7(2), 3-8. ‘The process requires amendments to current land use regulations to be proposed by or first submitted to the planning commission for recommendation, Id. at § 17-272-503(2); TCLUO, ch. 3-7(1). In such cases, notice and a public hearing is required. Id. at § 17-27a-502; TCLUO, ch. 3-72). And, if the planning commission's recommendation is appealed, the Tooele County Commission is obligated to conduct its proceedings in a “quasi-judicial” manner and to ensure "See Toone v. Weber County, 2002 UT 103, §14, 57 P3d 1079 (holding county's sale of land void where it was not first proposed to planning commission for recommendations); Springville Citizens for a Better Community v. City of Springville, 1999 UT 25, 915-16, 30, 979 P-2d 332 (holding municipalities’ approval of planned unit development illegal because it did not first receive prior approval from planning commission). 19that all participants receive due process. Id. at §§17-27a-707(5), -706(2). At minimum, participants were entitled to a meaningful opportunity to be heard and to a transparent process. The Homeowners received neither. 2, The Tooele County Commission did not follow Utah law, CLUDMA or its own ordinances under TCLUO; the Homeowners were deprived of due process. ‘The Southside Agreement undermines and defeats the purpose for which CLUDMA and TCLUO were established, by doing by contract what can only be done by legislation. The Tooele County Commission did not follow the process required by CLUDMA and TCLUO. Southside did submit an application to the Tooele County Planning Commission to rezone the Property from RR-S to MG-EX in May 2016, However, the Planning Commission recommended, unanimously, that the application be denied. Southside originally appealed the decision, but before the appeal could be considered by the Tooele County Commission, it was withdrawn, thereby precluding concemed citizens and the Homeowners from participating further in the process (whether legislative or administrative), as required by Utah law. Thereafter, the Tooele County Commission negotiated, privately, and agreed in advance on terms agreeable to both parties, including in effect, granting Southside’s gravel operations non- conforming use status for 25 years, over the entire 176-acre Property. In effect, through the private contract, Tooele County granted Southside’s application to rezone the Property from RR- 5 to MG-EX to allow for commercial gravel operations, but without the legal requirements (defined by Utah statutes, Tooele County ordinances and Utah case law) associated with such zoning. After Southside’s appeal was withdrawn, the Southside Agreement was not first presented to the planning commission. In addition, by deciding to effectively reverse the Planning Commission’s decision through the Southside Agreement, the Tooele County 20Commission also did not act in a “quasi-judicial” manner in approving the Agreement. The private negotiations eliminated due process for both concemed citizens and the Homeowners. Tooele County argues that it did hold a public hearing and provided the Homeowners an opportunity to present public comment on the proposed Southside Agreement. This hearing, however, did not comply with the statutorily required process and did not provide a meaningful ‘opportunity for the Homeowners to participate for several reasons. First, the four-day notice of the hearing, on its face, was inadequate under CLUDMA, which requires ten.'' Utah Code Ann. Id. § 17-27a-205(2). Second, the Homeowners were presented with a fully negotiated contract that, as represented by Tooele County, “reflects the direction given by the majority of the commission.” Pls.’ Mot., Ex. List 2A, July 31, 2018, Hr'g Tr. 61:2-12 (reflecting Appx. 190). Even before the July 21, 2018 hearing began, the Commission’s decision appears to have been reflected in the Southside Agreement. The Commission provided no reason as to why it decided not to follow the Planning Commission’s recommendation to deny Southside’s proposed zoning amendment in December 2016. It provided no transparency about the process that occurred between that denial in December 2016 and the fully negotiated Southside Agreement proposed in July 2018. Notably, the Commission stated that it had reviewed volumes of documents in reaching its decision, but it provided no information as to what evidence was reviewed, who reviewed it or the process that lead to the terms in the Southside Agreement. See id. at Aug. 21, 2018, Hr’g Tr. 30:7-17 (reflecting Appx. 263). Southside was not required to present evidence or make argument in support of the proposed Agreement. The Commission, in justifying its’ decision, merely explained that it was their job “to enforce the law” and “operate within the law[,]” Id. at Hr’g Tr. 30:21-31:6. The the Homeowners also argue that affected property owners did not receive notice in the mail ten days in advance, the Homeowners did not challenge lack of notice during the hearing and no specific evidence was, presented about how Tooele County published notice of the hearing. 21Commission did not state what law it was enforcing or how the process they were engaged in was “working within the law.” Id. Third, the Homeowners were not afforded the opportunity to prove that gravel operations on the property — whether on the original 10 acres, 16 acres, 88 acres or the entire 176 acres — had been abandoned. When the Homeowners attempted to offer three affidavits from the former land owners to support their position of abandonment during the August 21, 2018, public meeting, the Commission rejected the evidence on the grounds that they were no longer receiving evidence. ‘The Court's review of the notices for the hearing and meeting, and also the review of the transcript does not reveal that the Commission advised the public of the hearing/meeting process nor that they clearly stated that evidence would only be received during the July 21, 2018, hearing. It appears that Tooele County and specifically the Tooele County Commission had engaged in private negotiations with Southside for nearly two years. The Commission then, with a four-day notice, offered the public only a few hours to present its evidence on July 21, 2018, with no clear communication that that would be their only opportunity. In fact, on August 21, 2018, concerned citizens who wanted to be heard during the meeting were threatened to be removed. Jd. at Aug. 21, 2018, Hr’g Tr. 33:25 — 34:12 (reflecting Appx. 266-267). There was no due or fair process offered to the Homeowners. And, for the reasons stated above, it appears the Tooele County Commission’s decision to reject further argument and evidence from the public on August 21, 2018, while still allowing Tooele County to make its case in support of Southside’s interest and the Southside Agreement appears arbitrary. See also e.g. Denver & R.G.W.R. Co. v, Central Weber Sewer Improvement Dist., 287 P.2d 884, 887 (Utah 1995)(explaining in relevant part that the demands of due process does not “permit a commission to arbitrarily ignore” contentions of property owners). 2Fourth, because the decision to effectively rezone and allow commercial gravel operations on the 176-Acre Parcel for the first time was made by contract, and not by ordinance, it deprives all concerned citizens (and not just the Homeowners) from challenging this land use decision through local referendum, as provided by Utah Code Ann. § 20A-27a-503(2). Fifth, the Southside Agreement relieved Southside of the obligation to prove the following: (1) that there was a nonconforming use,' and that such use had not been discontinued for a period of one year," (2) that the proposed commercial gravel operations had been in continual use “in essentially the same form as when [operations] began,” and (3) that evidence supports that the doctrine of diminishing assets does apply to allow expansion of the original 10- ‘acre temporary gravel pit to commercial operations on 176 acres.'® Southside presented no evidence, no position and no argument during either the July 21, 2018, public hearing or the * Tooele County and Southside argue that there is no process by which Southside could establish a non-conforming use, and therefore establishing such use by contract is appropriate. The Court rejects this argument. There are several Utah cases in which a property owner requests that the local land use authority make an initial determination ‘of non-conforming use. Such determination can be pursued through the city and county land use authorities or by declaratory judgment to the district cour. LJ Mascaro inc. v. Herriman City, 2018 UT App 127, 428 P.3d 4 (reflecting that property owner sought judicial review after request for a determination that ‘nonconforming use had been established on property was denied by zoning administrator, and affirmed by both city planning commission and land use appeal board); Hugoe v. Woods Cross City, 1999 UT App 281, 988 P.2d 456 (reflecting that property owner sought declaratory relief and injunction against city, claiming owner's parking, staging, and storing of trucks was a legal nonconforming use). “Wherever a nonconforming use has been discontinued for a period of one year, such use shall not thereafter be re-established, and any future use shall be in conformance with the provisions of the land use ordinance.” Utah Code ‘Ann. § 17-278-510(4) (Xi) (emphasis added). See also TCLUO, ch. 5-6(2). 4A] nonconforming use is ‘a use of land that’ “legally existed before its current land use designation,’ ‘has been maintained continuously since the time the land use ordinance regulation governing the land changed,” and, "because of one or more subsequent land use ordinance changes, does not conform to the regulations that now govern the use ofthe land.” Hatch v. Kane Cry. Bd. of Adjustment, 2013 UT App 119, 11, 302 P-3d 146, 150 (citing Utah Code ‘Ann. § 17-27a-103(36)). “Based on this definition, in order for a nonconforming use to retain its lawful character ‘once the applicable law changes, it must continue in essentially the same form as when it began. Thus, a change to or abandonment of a nonconforming use may result in the property becoming subject tothe version of the law curently in effect.” Id. See, e.g, Harris v. Springville City, 712 P.2d 188, 188-89 (Utah 1984)(concluding that a nonconforming use was expanded in violation ofthe current ordinance where the nature of the business changed from manufacturing burial vaults and septic tanks to making ice). Notably, Tooele County offered no evidence of continual use, instead offering conclusory assertions that there was continual use. In contrast, the Homeowners attempted to present evidence of abandonment. 'S See TCLOU ch. 5-11, 5-12. 23August 21, 2018, public meeting, The transcript of hearings reveals that Tooele County presented mainly argument, while offering little evidence, in support of its recommendation that the Southside Agreement should be approved. The Tooele County Commission in effect created a new private “commercial mining and extraction zone” for Southside, while contracting away its duties and the exercise of its police power in the Southside Agreement.'® The Southside Agreement grants Southside the “right” to conduct large-scale commercial gravel operations, on the entire 176-acre property zoned RR-5 (residential), as a legal non-conforming use, for a period of 25-years. But, the Agreement does not impose the statutory requirements that come with MG-EX zoning (commercial mining and extraction). Under the Agreement, Southside can perform the following operations, without any further notice, hearing or approval requirements: (i) crushing, screening, washing, and processing of sand and gravel; (ii) marketing, advertising, and sales to the public; (iii) operating, maintaining, and repairing trucking and processing equipment; (iv) conducting such other activities and accessory or incidental uses related to the foregoing; and (v) expanding operations to include hot mix asphalt and operation of a concrete batch plant. The Southside Agreement allows Southside to bypass all the requirements under Chapter 27 of the TCLUO, which applies to commercial sand and gravel excavation. The Agreement does not require Southside to obtain a conditional use permit before commencing operations, as would be required for operations on MG-EX zoned properties. See TCLUO chs. 27-2, 27-6, 27- 7. Southside is not required to submit comprehensive operational plans, including closure and "© The enactment and enforcement of zoning regulations is within the police powers of local governments and they 4o not have the authority to enter into a contract, which effectively contracts away the exercise of that power, even ‘when the purpose isto settle 1. See generally Wallingford, 2020 UT APP 12 at {24 (citing Chung v. ‘Sarasota County, 686 So.24 1358, 1359 (Fla. App. 1996) (“Contracts have no place in a zoning plan ... [A] purported contract so made is ulta vires and all proceedings to effectuate it are coram non judice and utterly void.""\quoting 4 E.C. Yokley, 4 Zoning Law & Practice §25-11, at 321 (4* ed. 1979))). 4reclamation plans, soil test maps, dimensions and proposed depths of the extraction, appropriation and use of necessary water rights, and on-site control of surface and storm water drainage. See id. at ch. 27-4. There is no requirement to comply with even the minimum requirements set forth for such mining and extraction operations. See id. at ch. 27-4, 27-5. And, although permanent commercial operations require a new five-year plan after the expiration of the previous plan, see id. at ch, 27-3(1), the Southside Agreement foregoes such plan renewals under the 25-year agreement. Rather, the Southside Agreement provides that there shall be a periodic review between the Community Development Director, a county representative, and representatives of Southside to review compliance with the Agreement. In addition, the 25-year Southside Agreement can only be terminated through Southside giving notice under the Agreement. See Pls.’ Mot., Exs. List 1B, Exs. to Compl. 21, §§ 4, 10(d) (reflecting Appx. 109, 113). There are no stated conditions under which Tooele County can terminate the Agreement. The Agreement therefore appears to protect Southside’s long-term gravel operations from potential statutory and common-law claims such as abandonment and failure to continue as a non-conforming use. In addition, because the Southside Agreement contains the covenant that the Agreement runs with the land, these same protections (and lack of requirements) also extend to any future purchaser of the 176-Acre Property. ‘The end result is that Tooele County, through the Southside Agreement, created a new zone, subject to contractual rather than statutory requirements, for the benefit of one private land owner. As a legislative body and an appeal authority, the Tooele County Commission is obligated to act for the good of the public, in accordance with Utah law, and not just for the benefit of one private citizen. Nothing about the process that culminated in the Southside Agreement was transparent, and the process did not comply with Utah law, CLUDMA or 25TCLUO. Regardless of the characterization, an agreement with a private party to amend zoning or to grant a non-conforming use, by contract and outside of the legislative process, is contract zoning. See Warner Co., 644 A.2d at 664 (holding settlement of litigation by stipulation to nonconforming use status for sand mining held to be illegal contract zoning). The decision to approve and execute the Southside Agreement was illegal. 3. The Tooele County Commission’s decision — to grant a non-conforming use status for ‘commercial gravel operations ~ appears arbitrary and capricious. The Southside Agreement recognizes a “non-conforming use” that does not appear to have existed. With regard to non-conforming uses, TCLUO Chapter 5-1 states: “The intent of this chapter is to permit these non-conformities to continue but not to encourage their perpetuation or survival ... It is further the intent of this chapter that non-conformities shall nor be enlarged upon, expanded, enjoy an increase in intensity of use, unless specified otherwise.” Further, a non-conforming use is limited to the parcel upon which the legal non-conforming use existed, and does not extend to adjacent parcels that may be owned or later purchased. Id. at ch. S11, Here, Tooele County agreed, via contract, to allow Southside to conduct a 25-year commercial gravel operation without evidence that such operations ever existed on the entire 176-Acres. There is evidence that the most recent use of the gravel pit was temporary and limited to the sole purpose of improving roads in the Subdivision and improving Silver Avenue. The hearing and meeting transcripts reveal no evidence — proffered or otherwise — that commercial gravel operations of the nature contemplated under the Southside Agreement ever took place on the original 10-acre parcel, the additional 6-acre encroachment or any other portion of the 176-acres, at any time. Instead, contrary to its own ordinances and the signed and recorded Development Agreement, Tooele County agreed to allow Southside to expand the 16- acre, temporary gravel pit into a commercial operation expanding over 176-acres. In addition, 26Tooele County appears to give no consideration or weight to Southside’s own admission that the entire 176-Acre Parcel had been used for agricultural purposes from 2014 to 2016. ut Moti n In its Motion for Partial Summary Judgment, Defendant Southside appears to make two arguments. Southside argues that because the Development Agreement does not create covenants enforceable against its gravel pits, and because it has agreed that it will not operate the 10-acre gravel pit subject to the Development Agreement, it should be entitled to judgment on Plaintiffs’ Third Claim for Relief. Based upon the Court’s ruling regarding Tooele’s Motion, Southside’s Motion is MOOT. ‘Tovele’s Motion and PI Cross-Motion Based upon the foregoing, Tooele’s Motion is DENIED. Plaintiffs’ Cross-Motion is HEREBY GRANTED. The Southside Agreement is void ab initio. The foregoing Ruling and Order stands as the final order of the Court as to the matters addressed herein. No further order is required. U.R.C.P. 7(j)(1). Dated this 24 day of, go . ke 2020. BY THE COURT: 27