                   This opinion is subject to revision before final
                        publication in the Pacific Reporter

                                   2016 UT 43


                                      IN THE

         SUPREME COURT OF THE STATE OF UTAH

                   WASHINGTON TOWNHOMES, LLC, 1
                            Appellants,
                                         v.
         WASHINGTON COUNTY WATER CONSERVANCY DISTRICT,
                           Appellee.

                                No. 20150258
                            Filed October 3, 2016

                   On Appeal of Interlocutory Order

                      Fifth District, Washington
                    The Honorable Jeffrey C. Wilcox
                            No. 111900297

                                   Attorneys:
       Craig M. Call, Kevin E. Anderson, Jonathan W. Call, Ogden,
                              for appellants
  Jody K. Burnett, Robert C. Keller, John M. Zidow, Salt Lake City,
                            for appellee

 ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in
 which CHIEF JUSTICE DURRANT, JUSTICE DURHAM, JUSTICE HIMONAS,
                    and JUSTICE PEARCE joined.

   ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
   ¶1     This is a putative class action aimed at challenging the
legality of certain impact fees imposed by the Washington County


   1Other appellants were: HOMES BY HARMONY, INC.; COTTON
MEADOWS, LLC; SALISBURY DEVELOPMENT, LLC; SOUTHERN UTAH
HOME BUILDERS ASSOCIATION; IVORY SOUTHERN, LLC; PERRY HOMES
UTAH; and HENRY WALKER CONSTRUCTION OF SOUTHERN UTAH, LLC.
         WASHINGTON TOWNHOMES v. WASHINGTON COUNTY
                         Opinion of the Court
Water Conservancy District. The case was filed by a group of
property owners who paid impact fees—a “water availability
charge”—to the District within a specific time period. The plaintiffs
claim that the impact fees run afoul of the Impact Fees Act, UTAH
CODE §§ 11-36a-201 to -205, and amount to a taking under the Utah
and United States Constitutions.
    ¶2     The District defends its impact fees by asserting that they
were based on a “level of service” standard imposed on the District
through a minimum source capacity standard adopted by the Utah
Division of Drinking Water (DDW). The District views the DDW
level of service standard as mandatory as a matter of Utah law. It
claims that it is required to follow the DDW standard in planning
and building its infrastructure. And it asserts that the adoption of
this level of service standard is a “legislative” judgment that survives
scrutiny under the Impact Fees Act and constitutional takings
provisions.
    ¶3     The district court endorsed the District’s position in a
decision granting its motion for partial summary judgment. In
granting that motion the court held “that the Level of Service
adopted by and for the purposes of the District’s 2006 Capital
Facilities Plan and Impact Fee Analysis based upon a standard
established by the DDW was legal and reasonable as a matter of
law.” Order Granting Defendant’s Motion for Partial Summary
Judgment and Certification Pursuant to Rule 54(b) at 2 (Feb. 12,
2015). In addition, pursuant to a stipulation of the parties, the court
certified the case for an immediate appeal under Utah Rule of Civil
Procedure 54(b). In so doing it concluded that “a determination of
this critical threshold issue at the appellate level would be the most
efficient use of judicial resources” and accordingly found “that there
[was] no just reason for delay.” Id. at 2–3.
    ¶4    We dismiss on jurisdictional grounds. First, we hold that
the case was not properly certified under rule 54(b) because there
was no “judgment as to one or more but fewer than all of the claims
or parties” at issue. UTAH R. CIV. P. 54(b). Second, we consider the
briefing in this case as a “petition for permission to appeal an
interlocutory order,” see UTAH R. APP. P. 5(a), but decline to exercise
our discretion to grant interlocutory review.
                                   I
   ¶5    As a general rule only final judgments are subject to an
appeal. We have adopted that rule to promote “judicial economy,” to
“avoid[] the interminable protraction of lawsuits,” and to minimize

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                         Opinion of the Court
interruption of “the business of the trial courts before they have had
an opportunity to rectify some of their own possible misjudgments”
at early stages of the proceedings. Mellor v. Wasatch Crest Mut. Ins.,
2012 UT 24, ¶ 15, 282 P.3d 981 (citation omitted).
   ¶6     The general prohibition on interlocutory appeals is of
course subject to exceptions. Some such appeals are “expressly
authorized by statute.” Id. ¶ 16. And others are endorsed by our
rules of procedure—rule 5 of the Utah Rules of Appellate Procedure
and rule 54(b) of the Utah Rules of Civil Procedure.
   ¶7      This case comes to us as one certified under rule 54(b).
Invoking this rule, the district court certified its decision granting the
District’s motion for partial summary judgment as a matter meriting
an immediate appeal. It purportedly cued the case up for “a
determination of [a] critical threshold issue at the appellate level” by
finding that there was “no just reason for delay.” Order Granting
Defendant’s Motion for Partial Summary Judgment and Certification
Pursuant to Rule 54(b) at 2.
    ¶8     We can certainly appreciate the district court’s—and the
parties’—interest in appellate guidance on the issues presented in
this case. The statutory and constitutional standards of relevance to
this dispute are less than a model of clarity. And appellate
clarification of the operative legal standards could conceivably
advance the ultimate disposition of this case.
    ¶9    But that is not the question. Or, more accurately, it is not
the only question under rule 54(b). To qualify for certification under
rule 54(b), a district court decision must constitute a “judgment as to
one or more but fewer than all of the claims or parties” at issue in the
case. UTAH R. CIV. P. 54(b). And a “judgment” is a decision finally
disposing of either an individual claim or an individual party. See
Powell v. Cannon, 2008 UT 19, ¶ 11, 179 P.3d 799. When such a partial
“judgment” is entered, then the district court may certify the case for
an immediate appeal if it decides that “there is no just reason for
delay.” UTAH R. CIV. P. 54(b). But without a judgment disposing of a
claim or a party there is no basis for certification under this rule.
   ¶10 We dismiss the rule 54(b) certification on this basis. The
district court’s decision did not finally dispose of any claim and did
not finally adjudicate the interests of a party. Instead it decided a
threshold issue of possible relevance to the ultimate disposition of the
plaintiffs’ claims. And that is insufficient under rule 54(b).
   ¶11 To dispose of the plaintiffs’ statutory or constitutional
challenges at issue, the district court would have had to enter
judgment awarding (or declining to award) one of the remedies they
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         WASHINGTON TOWNHOMES v. WASHINGTON COUNTY
                         Opinion of the Court
sought—a declaration that the impact fees imposed by the District
are “null and void and of no effect,” or a “damage award . . . for all
damages suffered as a result of the imposition and collection of
illegal Impact Fees and exactions.” Complaint at 23. No such
judgment was entered. The district court did not reach the question
whether the impact fees imposed by the District were “null and void
and of no effect,” or whether plaintiffs were entitled to damages for
the imposition of improper impact fees. It considered only the
legality and reasonableness of the level of service standard “adopted
by and for the purposes of the District’s 2006 Capital Facilities Plan
and Impact Fee Analysis based upon a standard established by the
DDW.” Order Granting Defendant’s Motion for Partial Summary
Judgment and Certification Pursuant to Rule 54(b) at 1–2.
    ¶12 The legality and reasonableness of the District’s level of
service standard may (or may not) be relevant to the ultimate
disposition of the plaintiffs’ statutory and constitutional claims. But
there is no question that the district court’s decision did not render a
“judgment as to one or more but fewer than all of the claims or
parties” at issue in the case. UTAH R. CIV. P. 54(b). And we find a lack
of jurisdiction under rule 54(b) on that basis.
                                    II
    ¶13 Our rules recognize appellate discretion to treat a “timely
appeal from an order certified under Rule 54(b)” as “a petition for
permission to appeal an interlocutory order.” UTAH R. APP. P. 5(a).
We may do so where the 54(b) appeal is “timely” but the certified
order is “not final.” Id. That is the case here. Plaintiffs filed a timely
notice of appeal on the order certified under rule 54(b) 2 but the order
is not final for reasons set forth above.
   ¶14 That gives us discretion to consider the briefs filed on
appeal as a petition for permission to pursue an interlocutory appeal.
But it does not require that we reach the merits of the interlocutory
appeal. We retain the discretion to deny a petition under appellate
rule 5(a)—to treat the improperly certified appeal as a petition for


 2 Rule 5(a) speaks of a “timely appeal from an order certified under
Rule 54(b).” UTAH R. APP. P. 5(a) (emphasis added). The timeliness of
such an appeal is measured under the standard set forth in appellate
rule 4. For that reason the appeal here was timely because the notice
of appeal was filed within thirty days, as required under rule 4.
UTAH R. APP. P. 4(a).

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                         Opinion of the Court
interlocutory review, but to decline to grant the interlocutory appeal.
And we take that route here.
    ¶15 An interlocutory appeal is appropriate where appellate
intervention is necessary “to adjudicate principles of law or
procedure in advance as a necessary foundation upon which the trial
may proceed.” Houghton v. Dep’t of Health, 2008 UT 86, ¶ 14, 206 P.3d
287 (citation omitted). Where that is so, an appellate decision may
promote “the desired objective of efficiency in procedure” despite
the fact that it is interposed before a final judgment. Id. (citation
omitted).
   ¶16 The parties to this appeal contend that the above standard
is met here. They claim that our input on the reasonableness or
legality of the District’s “level of service” standard will advance the
timely disposition of this case. And they insist, in particular, that the
district court’s decision implicates threshold “principles of law” that
will serve as a “necessary foundation” on which further proceedings
will be based.
   ¶17 We concede that there are important issues highlighted by
the parties that will affect further proceedings in the district court.
But we decline to resolve them because we find an inadequate basis
for doing so on the record before us on this appeal. The parties’
briefs highlight important issues, but to some degree the parties
argue past each other and leave some key questions—both factual
and legal—unaddressed. And the scope of the district court’s
decision is also a bit unclear.
   ¶18 A principal point of contention in the parties’ briefs and at
oral argument concerns the legal and practical effect of the level of
service standard adopted by the DDW. The District seems to suggest
that this standard was adopted legislatively either by the District or
by the DDW—and imposed as a mandatory requirement on the
District in dictating the infrastructure and facilities it is required to
build in anticipation of future growth. And it insists that the
legislative and mandatory nature of the standard render it
reasonable as a matter of law under the Impact Fees Act and under
the takings provisions of the Utah and U.S. Constitutions.
   ¶19 This argument seems to invoke a threshold issue under the
U.S. Supreme Court’s decision in Dolan v. City of Tigard, 512 U.S. 374
(1994). In Dolan the Court clarified that the takings standard the
Court articulates is addressed only to impact fees that are imposed
on an adjudicative basis. See id. at 384–85 (noting the longstanding
“authority of state and local governments to engage in land use
planning,” emphasizing that such governments generally have
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         WASHINGTON TOWNHOMES v. WASHINGTON COUNTY
                         Opinion of the Court
power to regulate in this field “without paying for every . . . change”
that affects “values incident to property,” but holding that “an
adjudicative decision to condition petitioner’s application for a
building permit on an individual parcel” would be subject to a
different standard); id. at 391 n.8 (emphasizing that the Dolan test
applies to “an adjudicative decision to condition [an] application for
a building permit on an individual parcel,” while distinguishing
“generally applicable zoning regulations”). Because the impact fee
regime at issue here—including the level of service standard that
underlies it—was purportedly adopted legislatively, the District may
be asserting that its approach should survive scrutiny on that basis.
   ¶20 That is how the plaintiffs understand the District’s position.
They attribute to the District an assertion that the legislative
adoption of the level of service standard yields for the District a
“King’s X” that effectively immunizes the level of service standard
from review. Oral Argument at 19:20, Washington Townhomes v.
Washington Cty. Water Conservancy Dist., 2016 UT 34. This approach
suggests that the Dolan standard does not control here—that
plaintiffs’ real beef is with the legislatively adopted DDW standard,
and that such a challenge may be subject only to rational basis or
reasonableness review. See Platt v. Town of Torrey, 949 P.2d 325, 334
(Utah 1997) (noting that “[r]ate making . . . is an inexact science” and
that rates “should not be disturbed if there is any reasonable basis
for [an agency’s] determination” (omission in original) (citation
omitted)). Yet it is unclear whether this is the District’s position. At
oral argument the District seemed to disavow the “King’s X”
position. Oral Argument at 31:00.
    ¶21 The District advances an alternative argument that assumes
the applicability of the Dolan standard. Because it views itself legally
bound to build infrastructure and facilities as dictated by the DDW
level of service standard, the District insists that this standard is by
definition a precise, accurate measure of the impact of new
development on the District—and thus one that would survive under
Dolan. Thus, the District rejects the plaintiffs’ assertion that it is
somehow bound to assess the level of impact of new development
on the basis of actual water usage. It claims that such usage data is
beside the point as a legal matter—that the District is bound to
follow the DDW standard, and thus that plaintiffs cannot establish
that the governing “level of service can or should be limited to the
‘measure of demand that [a] new home will impose,’ rather than
take into account the systematic components required for a safe and


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                         Opinion of the Court
reliable public water supply system and which are part of the ‘state
standard of demand’” imposed by DDW. Appellee’s Brief at 35.
    ¶22 The plaintiffs disagree—at least to some extent. At oral
argument and in one or two places in their briefs, the plaintiffs seem
to concede that the District was legally bound (in the absence of an
exception from DDW) to build infrastructure and facilities in reliance
on the DDW level of service standard. See Oral Argument at 9:11
(acknowledging that DDW is required to follow the state standards
in designing their facilities). Yet they nonetheless proceed to
challenge that standard as a basis for the calculation of an impact fee—
asserting that the DDW “requirements were never intended to be
used for calculating impact fees,” and insisting that a reasonable
level of service standard would be based on evidence of actual water
usage rather than the DDW’s historical standard. Such a standard, in
plaintiffs’ view, would have to be based on actual usage data in
order to be reasonable. And because the District has not established
that its level of service standard is consistent with such data, the
plaintiffs challenge the district court’s dismissal of their claim on
summary judgment.
    ¶23 Plaintiffs also challenge the premise that a legislatively
adopted impact fee would not be subject to heightened review under
Dolan. They claim that this is a “distinction without a constitutional
difference.” Oral Argument at 12:03 (citing Parking Ass’n of Ga. v.
City of Atlanta, 515 U.S. 1116, 1117–18 (1995) (Thomas, J., dissenting
from denial of certiorari)). Alternatively, the plaintiffs argue that the
District’s decision should be considered adjudicative rather than
legislative. And they accordingly insist that the Dolan standard
applies, and that their case is a challenge to the District’s impact fee
analysis and not to the underlying DDW level of service standard.
    ¶24 The briefing on these and other issues has highlighted
“principles of law” that may provide “a necessary foundation upon
which the trial may proceed.” Houghton, 2008 UT 86, ¶ 14 (citation
omitted). If the level of service standard was legislatively adopted,
then in the District’s view the impact fee regime escapes scrutiny
under Dolan (and is subject only to rational basis scrutiny). See Dolan,
512 U.S. at 384–85 (“A land use regulation does not effect a taking if
it ‘substantially advance[s] legitimate state interests’ and does not
‘den[y] an owner economically viable use of his land.’” (alterations
in original) (quoting Agins v. City of Tiburon, 447 U.S. 255, 260
(1980))). Yet the plaintiffs offer a contrary view. And the parties’
disagreement appears to implicate a matter of substantial
significance in this litigation, as it may dictate whether plaintiffs are
entitled to Dolan review of the District’s impact fee regime, or
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         WASHINGTON TOWNHOMES v. WASHINGTON COUNTY
                         Opinion of the Court
whether they are left only with a rational basis challenge (in a
separate suit) to the DDW’s level of service standard.
    ¶25 The parties have also identified a key threshold question of
factual (or perhaps practical) significance—as to whether the District
was legally required to build infrastructure and facilities in
accordance with the DDW level of service standards. If so, the
District may have a point that its impact fee regime should survive
even under Dolan. The impact on the District, after all, could hardly
be more precisely measured than by an assessment of the
infrastructure and facilities it is required to build as a result of new
development. So if the District is right about the binding nature of
the DDW standards, then it may well be right to suggest that the
plaintiffs’ beef is ultimately with the DDW’s standard, and not with
the District’s impact fee regime.
    ¶26 That said, we cannot render a conclusive judgment on these
or other issues presented on this appeal. The threshold question of
whether the District’s impact fee regime was legislatively adopted is a
difficult one. And this is an issue on which we would need more
extensive briefing than was presented on this appeal. 3 To resolve this


3  The difficulty in answering this question stems in part from the
Supreme Court’s lack of clear guidance. See Koontz v. St. Johns River
Water Mgmt. Dist., 133 S. Ct. 2586, 2608 (2013) (Kagan, J., dissenting)
(noting that a rule “adopted in several States” is that “Nollan and
Dolan apply only to permitting fees that are imposed ad hoc, and not
to fees that are generally applicable”); Ehrlich v. City of Culver City,
911 P.2d 429, 444 (Cal. 1996) (explaining that “the heightened
standard of judicial scrutiny of Nollan and Dolan is triggered” only
by exactions which are imposed “on an individual and discretionary
basis” rather than “generally [or] ministerially”). But see Parking
Ass’n of Ga. v. City of Atlanta, 515 U.S. 1116, 1117–18 (1995) (Thomas,
J., dissenting from denial of certiorari) (“It is not clear why the
existence of a taking should turn on the type of governmental entity
responsible for the taking. A city council can take property just as
well as a planning commission can. . . . The distinction between
sweeping legislative takings and particularized administrative
takings appears to be a distinction without a constitutional
difference.”); Dakota, Minn. & E. R.R. Corp. v. S. Dakota, 236 F. Supp.
2d 989, 1026 (D.S.D. 2002) (concluding that Dolan applied to
legislative exactions and that a legislative enactment “may make it
more difficult for the State to satisfy the essential nexus test
                                                          (continued…)
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                         Opinion of the Court
and other issues, moreover, the district court may have to wade into
factual questions that cannot be resolved on the current record. The
record on appeal does not spell out the details as to how the impact
fee is calculated, or how the level of service standard may affect that
analysis.
    ¶27 The question of the binding nature of the DDW standard,
for example, is a matter of some difficulty. We cannot tell from the
record—or the briefing and argument on appeal—whether or to
what extent the District was bound to follow the DDW standard in
its construction of infrastructure and facilities necessitated by new
development. The district court’s order is likewise unclear on this
point. As noted above, the court concluded that the “Level of Service
. . . was legal and reasonable as a matter of law.” Order Granting
Defendant’s Motion for Partial Summary Judgment and Certification
Pursuant to Rule 54(b) at 2 (Feb. 12, 2015). But it also made reference
to “the District’s 2006 Capital Facilities Plan and Impact Fee
Analysis” being “based upon a standard established by the DDW,”
and it concluded that the adoption of that standard was a
“reasonable” act presenting a “legal question that does not require
any resolution of disputed facts.” Id. Because that question is a
significant one that finds no clear answer in the parties’ briefs or in
the district court’s decision, we find it imprudent for us to step into
this case at this stage on an interlocutory basis.
   ¶28 For these reasons we dismiss this case on jurisdictional
grounds rather than rendering an opinion on the merits of the issues
presented for our review. We do so recognizing that there are
important threshold questions presented that may provide a
“necessary foundation upon which the trial may proceed.” Houghton,
2008 UT 86, ¶ 14 (citation omitted). But we conclude that those issues
are insufficiently presented on the briefs and record on appeal, and
accordingly remand for further proceedings in the district court.




employed in regulatory takings cases because it may not have made
the necessary level of individualized findings”), aff’d in part, vacated
in part, remanded sub nom. Dakota, Minnesota & E. R.R. Corp. v. S.
Dakota, 362 F.3d 512 (8th Cir. 2004).

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