OCR Text |
Show MONDAY, AUGUST 19, 1974 INTERMOUNTAIN COMMERCIAL RECORD PAGE TWELVE The Supreme Court of The State of Utah Bn I which says it shall make its decision within seven days after the hearing, and if It falls so to do, it loses Its jurisdiction In the matter. No, 13549 Thomas F. Herr, Plaintiff and Respondent, FILED v. are awarded. No costs The judgment of the district court is affirmed. ' 14, 1974 August i i Saltf Lake County, a body corporate and politic of the State of Utah; et al. , Defendants and Appellants. WE CONCUR: Allan E, Mecham, Clerk E. R. Calllster,r t Jr., Chief Justice F. Henri Henriod, Justice in t R. L. Tuckett, Justice i ELLETT, Justice: Plaintiff ownn approximately ?8 acres of land in Salt Lake County. On or about November 22, 1972, he made application to the Salt Lake County Planning Commission for authority to construct a condominium village. The Planning Commission held a public hearing on the application and on February 13, 1973, unanimously approved the application forth of certain conditions to be imposed subject to the subsequent setting 1 upon the unit development. On February 21, 1973, an appeal was taken to the Board of Commissioners of Salt Lake County from the order of the Planning Commission by residents of the community wherein the condominium was to be constructed. The appeal was heard March 8,' 1973, and was taken under advisement until March 19, 1973, at which time the County Commissioners reversed and overturned the unanimous decision of the Planning Commission. CROCKETT, Justice! Three propositions combine to persuade me hat the decision of the Board of County Commissions raj should not be voided bn procedural grounds. (In view of the disposition of this case,, consideration of the merits of their decision rejecting construction of the condominium is no reached. ) First: A requirement, that a tribunal, performing judicial functions, "shall" act within a stated jtime is usually jconsldered to be directory rather than mandatory; and before a negation of jurisdiction is justified because of delay in making a decision prejudice to tne party complaining must be shown. abundance of cases dealing with whether Relating to that proposition, there Is the word "shall" should be', construe 4b absolutely mandatory, or as merely directory. On examining1 hem it will be seen that there can be no doubt that the true meaning and intent Bhcfuld fee determined from the context and the purpose in which' the word is used; This is illustrated in the case of Escoe v. Zerbst, on which the main opinion relies in part, The court stated: 1. Lynch v. Coviglio, 17 UtahM06j 53.PJ 983; Sperlsen v.. Heynemann, .309 P. 2d 436; Cullen v. Building? Inspector of No. Attleborough,' 353 Mass. 671, 234 N.E.2d 727; Koehn v.j State Board of Equalization, Etc., 333 P. 2d 125 (Cal.App. 1959); Peak-v- . (Industrial Accident Commission, 82 Cal.App. 2d 526, 187 P. 2d 905. In the Interest of brevity these citation! are limited to an illustration of the wide variety of tribunals to which this rule has been applied. 2. 295 U. S. 490, 493.' Plaintiff then brought an action in the District Court pursuant to Rule 65B(b)(3), U.K. CP. , to review and vacate the ruling of the County Commissioners and to compel them to issue the permit as granted by the Planning Commission. The trial court reversed the order of the County Commission and granted the application for a conditional use of the planned It is from that judgment that this appeal was taken. . development. The issue involved in this matter is the interpretation to be placed -- 2(6)(b) of the Revised Ordinances of Salt Lake 22-3- 1 Section County, upon which reads: The Board of County Commissioners, after proper review of the decision of the Planning Commission, may affirm, reverse, alter or remand for further review and consideration any action taken by said Planning Commission and shall make such decision within seven (7) days of the hearing of the "shall" particular time? The meaning of the word shall is ordinarily that of command. It is defined in the American Heritage Dictionary as follows: "2, . . . d. Compulsion, with the force of must, in statutes, deeds, and other legal documents. " The United States Supreme Court distinguished between the words may and shall in the case of Anderson v. Yungkau, 329 U.S. 482 (1946) as follows: The word "shall11 is ordinarily "language of command." Escoe v. Zerbst, 2?) U.S. 490, 493. And when the same rule uses both "may" and "shall", the normal inference is that each is used in its usual sense - the one act being per missive, the other mandatory. 1. Such as the height of the building, the slope of the roof, water and sewer connections, fire protection, nearness to ridge line, etc. The County Commission did not act within seven days but took eleven days after the hearing before it attempted to reverse the Planning Cormis-sioDid it thereby lose jurisdiction to make its ruling? The trial court thought that it did. rk Third, and finally: Such delay as occurred, from Thursday to Monday, was purely a procedural Irregularity from which no one was or could be in any way adversely affected. From anything I have been able to discover, where there has been a short delay In a decision by such a tribunal, in the. absence of any showing of prejudice to the parties in interhave invariably declined to set aside such an order est, the authorities 0 This court had a related problem before it in Lund v. Cottonwood Meadows Co., 15 Utah 2d 305, 392 P. 2d 40 (p964). Involved in that case was an ordinance of Salt Lake County which provided that an aggrieved party might appeal from a ruling of the Planning Commission to the Board of Adjustment within ninety days after the decision. This court held that the ninety-da- y period was jurisdictional, saying: The 90-dlimitation of Sec. is designed to assure speedy appeal to the proper tribunal any grievance that a party may have who is adversed by a decision of an administrative agency. The evident purpose of the statute is to assure the expeditious and orderly development of a com17-27-- munity, etc. WILLIAM Hillside Dr., Mur, Metrpltn Fin Co; 823- - BOWEN, WARREN HHG. D., 4150 Park Green Dr., 12 E. , Krns.Ut to Metrpltn Fin Co; cmpr. IVAN JAY. Overnight Service Blphgpphics 28 West 1st South Salt Lake City, Utah 84101 Telephone 364-845- 1 224 South 1300 East Salt Lake City, Utah 84102 2 Telephone 5. Cullen v. Building Inspector No. Attleborough, supra, footnote 1. 6. See footnote 1 above, particularly Sperlsen v. Heynemann. 551 furn, Llndell Ave cmpr, LEWIS O, 1099 Wenco T. Clr., 10155 Ut to Amer 245 N. Sandy, Ut to Metrpltn Fin 836-KAN- S.W.2d 1056. 7 own ordinance 6th W., SLC, Ut to Metrpltn Fin Co; HHG. 834- - MILLSAP, MICHAEL G. & LIZA, 1722 W. 4th N. 3, SLC, Ut to Metrpltn Fin Co; furn. 835- - NAEGELIN, ROBERT H. & LEGAL BRIEFS 582-828- to the same effect. 4. Davidson v. Board of Education of City of Pikeville, 225 Ky. 165, Uniform Commercial Code filings to Amaryllis Dr., 832-MADS- BARBARA, XEROXED & PRINTED Alphagraphics can copy and collate at bt per copy. its See also Richbourg Motor Co. v. United States, 281 U.S. 528, 534 3. ... J.,Ut 5bb to . 16 We think the County Commission should sbide by 822- - HOLDER, 844- - M0UNTEER, Fin Corp; 846- -WINBERG, & 843-BLIS- S, CHAN F. & MARY, HHG. C. TORKELSON Corp; 849- - F. Broadway, CO., 10 W. to Quality SLC, Ut Acceptance Corp; copy system, multlgraph. 850- - PERRY, JAMES D. & BETTY, 501 Capri, Mur, Ut 84107 to Captl Find' Servs; HHG. MARK D. & 1611 Talisman Cr. 824- - WHITE, Captl Find Ut 84116 Servs; HHG. 855- - MAYNE , KENNETH H. & BLANCHE, 3378 Edward Way, to The Lockhart Co; furn, appli, tool, equip. - 856- JONES, MARIAN, 1585 S. W. Ut to O.C. SLC, Temple, Tanner Jewelry Co; remount. MICHELLE, 1. SLC. BARRY J. , 75 B 1, SLC, Ut to O.C. Tanner Jewelry Co; wedding Str. vehicle. 825- - EICHLER, WILLIAM, E. , 123 Goltz Ave., SLC, Ut to Metrpltn Fin Co; guna. 826 - RANDOLPH, JOHN 1100 PAUL, 3332 S. 1885 S., SLC, Ut 838-JAM- E. , 219 E. JACK W., 6468 S. 1090 W., SLC, Ut to Metrpltn Fin Co; cmpr. 536 to furn, fixtures. 863- - STATEN, LARRY A., 4765 Meadow View Rd., Mur, Ut to RAMON ES 6th S., SLC, Ut to Metrpltn Fin; HHG. Comercl Sec Bk; mobile home, 84107 E. , 1077 N, 862- SMITH, MICHAEL DAVID, E. 4500 STEVE Prospect Str., SLC, Ut to Metrpltn Fin Co; HHG. E. , SLC, Ut to Comercl Sec Bk; mobile home, furn,' appli, cooler. - J. & MABLE, Calif. Ave., SLC, Ut to Metrpltn Fin Co; furn. - 827- MAY, set. - E. , 397 Ave., SLC, Ut to Metrpltn Fin Co; recreation SLC, Ut 861- SUTTON, MICHAEL Welby 857- - HIGGINS, & HHG. 851-ADA- . HHG. EUGENE 847 - HANSEN, CARLOS G. & GENEVIEVE, 2459 S. 7th E., SLC, Ut 84106 to Amer Fin JEANNE, 4664 Tina Way, SLC, Ut 84107 to Metrpltn Fin Co; furn. & 670 Browning, SLC, Ut 84105 to Amer Fin Corp; SLC, Ut E. L. CLAUDE HHG. VIVIANNE, motor. THOMAS Sandy, Fin Corp; PATRICIA, 5166 S. 4820 W., SLC, Ut 84118 to Amer Fin Corp; HHG. 845- - GILLAS, STELLA, 455 E. 13th S., SLC, Ut 84115 to Amer & KATHY, to Metrpltn Fin; unlisted. 839- - HAMAKER, LYNN A., 500 N. 500 W., Bntfl, Ut to Metrpltn Fin Co; guns, rings, furn, radio-phon- o equip. 840- - BAUM, DELMO R. , 12549 S. 1580 W. , Rvrtn, Ut to Metrpltn Fin Co; boat, 842 WEAVER , signifi- Second: The decision of the County Commission was in fact announced within seven work days after the hearing. It wan held on Thursday, March 8, 1973; and the decision was made on Monday, March ' 19. Therefore, if the non-wodays, Saturdays and Sundays, are ex- on the seventh work day. Since the eluded, the decision was actually made Ordinances of Salt Lake County provide no definition for this computation of time, this action by the County Commission could properly be regarded as a not unreasonable operational construction of the ordinance which allows seven days in which to make the decision. n. ay test In applying that fundamental rule of construction, the courts have seen a significant difference between the necessity of compliance with prescribed time limitations by the parties as between themselves, as distinguished from limitations upon the tribunal in rendering Its judgment. With respect to the latter. In considering the purposes of such statutes or ordinances, the courts have generally Interpreted such requirements simply as regulations for the orderly and convenient conduct of public business, and not as a condition precedent to the validity of the acts done; and have therefore held quite uniformly that failure of strict compliance with these requirements does not deprive the tribunal of jurisdiction. This should be especially so when the delay is of relatively short duration (as it was here) and thus more likely due to inadvertence than to intentional failure or neglect of responsibilities for a substantial period of time. The question is: Does the word shall quoted above mean that the decision must be rendered within seven days of the hearing, or is it merely advisory and doer: not require a decision to be rendered at any. . . . . . . , it is the language of command, a cant, though not controlling. (Citations omitted. ) Doubt, however, is dispelled when we pass from words alone to a view of the ends arid aims. (Emphasis added. ) Emphasis added. appeal. (Dissenting Comercl Sec Bk; mobile home, furn, fixtures. KENNETH S., 4256 Mackay Str., SLC, Ut to Comercl Sec Bk; drill ford chassis. 865-MILL- Dr., W. .rig KYLE, 6757 Kentucky Jrdn, Ut 84084 to Comercl Sec Bk; refrig. |