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

                                  2018 UT 21


                                     IN THE

        SUPREME COURT OF THE STATE OF UTAH

                        JEANETTE POTTER, ET AL.,1
                              Appellants,
                                        v.
                          SOUTH SALT LAKE CITY,
                                    Appellee.


                               No. 20150931
                             Filed June 5, 2018


                             On Direct Appeal


                       Third District, Salt Lake
                   The Honorable Paul G. Maughan
                           No. 140908636


                                  Attorneys:
             Craig S. Cook, Salt Lake City, for appellants
     Jody K. Burnett, Robert C. Keller, Salt Lake City, for appellee


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




_____________________________________________________________

 1 Other appellants are Darrel Roberts, Barbara Mackay, Carl
Webster, June Jackson, William Eresuma, Heather Bernales, and
Eugene Baierschmidt.
                  POTTER v. SOUTH SALT LAKE CITY
                        Opinion of the Court


 ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
 ¶1 Jeanette Potter and others filed suit challenging a decision of
the South Salt Lake City Council to close a portion of Truman and
Burton Avenues. The district court dismissed Potter’s claims on
summary judgment. We affirm. In so doing we conclude that the
petition to vacate was valid under Utah Code section 10-9a-609.5,
that Potter has not identified any prejudice resulting from any
alleged deficiency in the petition, and that notice of the city council
meetings was sufficient under Utah Code section 10-9a-208.
  ¶2 In holding that Potter failed to prove prejudice we revise and
clarify the standard set forth in Springville Citizens for a Better
Community v. City of Springville, 1999 UT 25, 979 P.2d 332. We hold
that a party alleging error by a land use authority is no longer
required to show that the “decision would have been different” but
for the error. Id. ¶ 31. Instead we conclude that a party can establish
prejudice by showing a reasonable likelihood that the error changed the
land use authority’s decision.
                                   I
 ¶3 In 2008 the South Salt Lake City Council voted to close a
portion of Truman and Burton Avenues in response to a petition by
RIM Enterprises. RIM owned a Chrysler dealership on State Street
that occupied three separate blocks divided only by Truman and
Burton Avenues. And the car dealership sought to expand its
operation by consolidating the three properties, thereby complying
with Chrysler Corporation’s acreage requirement.
  ¶4 The city council conditioned its decision to vacate both streets
on the dealership’s buying the four parcels on Truman Avenue that
abutted a portion of Truman that RIM Enterprises wanted vacated.
A plat map reflecting this decision was placed with the city recorder
in 2008—to be recorded only upon a showing that the dealership had
met the condition. The dealership never purchased the parcels,
however, so the two streets were never vacated.
  ¶5 Years passed and RIM Enterprises sold the dealership to Salt
Lake Valley Chrysler Dodge in 2014. In May 2014 the dealership
filed another petition with the South Salt Lake City Council. This
new petition sought to vacate only the portion of the streets adjacent
to land the dealership already owned, thus avoiding the need to
purchase the four properties on Truman Avenue. After notice and a
public hearing the city council denied the petition.


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  ¶6 In October 2014 the dealership submitted a revised petition to
vacate. The revised petition included mitigation measures aimed at
addressing the concerns residents raised during the earlier public
hearing. The city sent notices out to residents in the area apprising
them of the petition and the public meeting to be held on
December 3, 2014. The city also placed large signs with similar
language along Truman and Burton Avenues, as required by Utah
Code section 10-9a-208(2)(c).
 ¶7 Residents overwhelmingly opposed the action at the
December 3 meeting. Only the dealership’s attorney spoke in favor
during the public comment portion. After taking public comment the
council elected to table the discussion until the following meeting,
placing the item on the unfinished-business agenda for December 10,
2014.
  ¶8 When the city council turned to the issue at its December 10
meeting, the city attorney addressed the council regarding his legal
opinions. He noted that “the decision has already been made to close
the streets”—referring to the council’s conditional approval of the
2008 petition—“so the real issue here” is whether “the City [is]
happy with the additional mitigation measures.” Following the city
attorney’s presentation, several residents, including Potter’s current
legal counsel, addressed the city council and took issue with the city
attorney’s comments. One resident remarked, “If the decision has
already been made and it doesn’t matter, then why are we here?”
 ¶9 The city attorney later addressed the council again and
explained that the conditions in the 2008 ordinance did not contain a
sunset clause. He noted that if the city council rejected the
dealership’s 2014 petition “then the previous action remains in place,
and at whatever time the conditions of the previous action are met,
the streets will be closed but they’ll be closed without the mitigation
measures that have arisen out of this most recent activity.”
  ¶10 These comments seemed to surprise at least some of the
members of the city council. One councilwoman expressed
frustration with the process and with the attorney’s legal advice. She
noted the lack of understanding among the councilmembers that the
closure “is happening in one form or another” because the 2008
ordinance remained valid and could be invoked whenever the
dealership met the conditions.
 ¶11 Following some debate, the South Salt Lake City Council
voted five to two to vacate a portion of Truman and Burton
Avenues. The council found, as required by statute, that “good cause
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                  POTTER v. SOUTH SALT LAKE CITY
                        Opinion of the Court


exist[ed] for the vacation” and that “neither the public interest nor
any person w[ould] be materially injured by the vacation.” See UTAH
CODE § 10-9a-609.5(3).
 ¶12 Potter sought review of the action in district court. She asked
the district court to set aside the decision under Utah Code section
10-9a-801 on the grounds that the decision was illegal.
  ¶13 Potter specified two principal grounds for challenging the city
council’s decision. First, she asserted that the council’s decision was
illegal because the dealership’s petition to vacate failed to list the
name and address of each owner whose property was “adjacent to
the public street” being vacated, as required by Utah Code section
10-9a-609.5(1)(a)(i). Second, she challenged the sufficiency of the
notice of the city council meeting in which the streets in question
were vacated. Here Potter noted the city attorney’s comments in the
December 10 meeting—comments indicating the attorney’s view that
the council had already decided to close the streets under the first
petition to vacate, and that the “real issue” was whether to endorse
the “additional mitigation measures” in the revised petition. And
Potter claimed that those comments deprived the public of a
meaningful opportunity to be heard on the proposed action.
  ¶14 Both parties filed motions for summary judgment. The district
court granted the city’s motion. It held first that the dealership’s
petition satisfied the requirements of Utah Code section
10-9a-609.5(1)(a). In so doing the court interpreted the requirement
of naming each owner whose property was “adjacent to the public
street” being vacated to apply only to owners of property abutting
the portion of the street being vacated. And because the dealership
owned all the property abutting the portion of the streets being
vacated, the court concluded that the dealership was not required to
name any property owners in its petition.
  ¶15 The district court also upheld the validity of the notice of the
city council meeting. It concluded that the city attorney’s “comments
did not render the proceedings defective or illegal in any way.” And
it held that no further notice was required despite the city attorney’s
apparent reframing of the issue.




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                         Opinion of the Court

 ¶16 Potter filed this appeal. We review the district court’s decision
on summary judgment de novo.2 See Bahr v. Imus, 2011 UT 19, ¶ 16,
250 P.3d 56.
                                    II

 ¶17 Potter raises two sets of issues on appeal. She challenges the
sufficiency of the dealership’s petition to vacate under Utah Code
section 10-9a-609.5(1)(a). And she also asserts that the public was not
given adequate notice of the nature of the city council’s meeting. We
disagree and affirm.
                                    A
 ¶18 Potter makes two sets of arguments in challenging the
sufficiency of the petition to vacate. She first asserts that the petition
was defective because it failed to include the names and addresses of
all property owners whose land was “adjacent to the public street”
being vacated, as required by Utah Code section 10-9a-609.5(1)(a)(i).
And she also insists that this defect is sufficient to sustain reversal
regardless of the fact that it had no effect on the city council’s
decision. We reject both sets of arguments.
                                    1
 ¶19 Utah Code section 10-9a-609.5(1) requires a party seeking “to
vacate some or all of a public street” to file a petition that includes
“(a) the name and address of each owner of record of land that is: (i)
adjacent to the public street, right-of-way, or easement; or (ii)
accessed exclusively by or within 300 feet of the public street, right-

_____________________________________________________________

 2  Potter appears to assume that our review is of the city council’s
action (not the district court’s). That is perhaps understandable in
light of potentially confusing language in Fox v. Park City, where we
said that “we act as if we [a]re reviewing [a] land use authority’s
decision directly” when we consider an appeal from a district court’s
decision reviewing “an order of a local land use authority.” 2008 UT
85, ¶ 11, 200 P.3d 182. But the “as if” formulation is just a reflection
of the de novo nature of our review. We cannot ignore the district
court’s decision. That is the decision before us on appeal. See
Outfront Media, LLC v. Salt Lake City Corp., 2017 UT 74, ¶ 12,
--- P.3d ---. And the appellant bears the burden of establishing a
reversible error in the district court’s decision.


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                   POTTER v. SOUTH SALT LAKE CITY
                         Opinion of the Court


of-way, or easement.” The threshold question is what it means to be
“adjacent to the public street.” There is some ambiguity in that
clause. It could be a reference to the portion of the street being
vacated—to section 609.5(1)’s introductory clause, which refers to
“some or all of [the] public street” sought to be vacated. UTAH CODE
§ 10-9a-609.5(1). Or, alternatively, the referenced “public street”
could be taken literally; it could mean the entire length of the street
that bears that name—here, Truman and Burton Avenues from start
to finish (where they begin at State Street until they end many blocks
to the east).
  ¶20 Either of these readings is semantically possible if we view the
term “public street” in isolation—divorced from its statutory context.
But we must consider the statutory context. See Olsen v. Eagle
Mountain City, 2011 UT 10, ¶ 12 n.5, 248 P.3d 465 (“[T]he meaning of
statutory language, plain or not, depends on context.” (alteration in
original) (citation omitted)). And the context strongly favors the
former reading over the latter.
  ¶21 This statute prescribes the required elements of a petition
seeking to vacate “some or all of a public street.” UTAH CODE
§ 10-9a-609.5(1). And in context, the use of the phrase “public street”
is easily understood as a reference back to the subject of the
petition—to the portion of the street (“some or all” of it) sought to be
vacated. The alternative reading (that “public street” means the
entirety of the street from beginning to end), moreover, seems
difficult to reconcile with the apparent purpose of the statute
(another element of context). A public street may extend many
blocks—or even many miles—from start to finish. And it is hard to
think of a reason why the legislature would want to require a
petition to list owners whose property is situated many miles away
from the portion of the street being vacated. With this in mind, it is
more natural to read the term “public street” as a reference back to
the subject of the petition—to the portion of the street being vacated.
  ¶22 Potter acknowledges the difficulty of the more expansive
reading of “public street.” And she accordingly offers a third
possibility. In Potter’s view the referenced “public street” could be
viewed as ending at the next cross street—for Truman and Burton
Avenues, at 200 East. We reject that reading, however, as we find no
basis for it in the statutory text. The reference to “public street” could
mean all of Truman or Burton Avenue. Or, in the context of this
statute, it could mean the portions of those streets being vacated.
There is no natural reading of “public street,” however, that extends

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                         Opinion of the Court

beyond the portion being vacated and arbitrarily ends at the next
cross street.
 ¶23 We reject Potter’s challenge to the car dealership’s petition on
this basis. We conclude that the petition complied with Utah Code
section 10-9a-609.5(1)(a) because there were no other owners of
property adjacent to the portions of the public streets being vacated.
And we affirm the district court’s decision on summary judgment on
this basis.
                                   2
  ¶24 We have long held that parties challenging a land use
decision “must establish that they were prejudiced by the City’s
noncompliance with its ordinances.” Springville Citizens for a Better
Cmty. v. City of Springville, 1999 UT 25, ¶ 31, 979 P.2d 332. Here there
is an admitted lack of prejudice—Potter concedes that the alleged
defect in the car dealership’s petition had no effect on the city
council’s decision. And that is an alternative basis for affirming the
district court’s decision on summary judgment.
 ¶25 Potter seeks to avoid this result by asking us to adopt a
prejudice standard that differs from the one we prescribed in
Springville Citizens. Her argument proceeds in two steps.
 ¶26 Potter first asks us to revise our formulation of the standard of
prejudice in Springville Citizens—a standard requiring a party
challenging a land use decision to establish that “the City’s decision
would have been different” but for its noncompliance with its
ordinances or governing statutes. Id. In support of this argument,
Potter cites our court of appeals’ observation that this formulation
“imposes a difficult—if not impossible—burden on a citizen who
seeks to challenge the procedural legality of a city’s land use
decision.” Gardner v. Perry City, 2000 UT App 1, ¶ 20 n.7, 994 P.2d
811. And Potter asks us to reformulate the prejudice standard in a
manner that will avoid the difficulties of the Springville Citizens
regime.
  ¶27 Potter’s second point is more comprehensive. Citing eminent
domain cases, Potter asserts that there should be no requirement of
proof of prejudice in a case challenging a decision to vacate a public
street. The point here is that this is no ordinary land use decision. In
Potter’s view the decision to vacate a street is more like a city’s
decision to condemn land. And because in Potter’s view there is no
requirement of proof of prejudice in an action challenging an


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                   POTTER v. SOUTH SALT LAKE CITY
                         Opinion of the Court


eminent domain proceeding,3 Potter asks us to eliminate the
requirement of proof of prejudice in a case like this one.
  ¶28 We find no basis for this latter invitation. We can assume for
the sake of argument that prejudice is not an element of an action
challenging an exercise of the eminent domain power. But Potter is
not challenging an exercise of the eminent domain power. Eminent
domain involves the exercise of government power in taking private
property rights. And Potter is challenging a decision to revoke public
access and control of a street—the petition at issue here is one
seeking “to vacate some or all of a public street.” UTAH CODE
§ 10-9a-609.5(1) (emphasis added). So the city’s action in vacating a
street has no effect on private easements over the roadway—it “may
not be construed to impair . . . any right-of-way or easement of any
lot owner.”4 Id. § 10-9a-609.5(5)(b). For that reason this is not a
challenge to the exercise of the eminent domain power. It is a
challenge to a land use decision. And the general principles of
judicial review apply.
  ¶29 A core element of these principles is the requirement of proof
of prejudice. As a general rule we do not overturn a decision of a
lower court or administrative body upon a mere showing of error;
proof of prejudice is typically required. See UTAH R. CIV. P. 61 (“The
court at every stage of the proceeding must disregard any error or
defect in the proceeding which does not affect the substantial rights
of the parties.”); State v. Goins, 2017 UT 61, ¶ 48, --- P.3d --- (noting,



_____________________________________________________________

 3 Potter cites the following cases in support of her argument: Salt
Lake City Corp. v. Evans Dev. Grp., LLC, 2016 UT 15, 369 P.3d 1263;
Marion Energy, Inc. v. KFJ Ranch, P’ship, 2011 UT 50, ¶ 16, 267 P.3d
863; and Town of Tremonton v. Johnson, 164 P. 190, 191 (Utah 1917).
We yield no opinion on the premise of Potter’s argument. We see no
reason to reach the question whether prejudice is required in an
eminent domain setting because we conclude that this case does not
sound in eminent domain.
 4 This statutory scheme only affects public rights, so we do not
decide the question whether these residents have a private easement
under Boskovich v. Midvale City Corp., 243 P.2d 435 (Utah 1952), that
could warrant a separate proceeding for just compensation.


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in the context of a criminal case, that an error warrants reversal only
if it results in prejudice).
  ¶30 This requirement has long been extended to judicial review of
land use decisions. See, e.g., Springville Citizens, 1999 UT 25, ¶ 31
(holding that a party challenging a land use decision must establish
prejudice). And this application is likewise reflected in settled case
law in other jurisdictions. See, e.g., In re Eastview at Middlebury, Inc.,
992 A.2d 1014, 1022–23 (Vt. 2009) (“It is a well established rule that
the party who alleges error has the burden of showing that he has
been prejudiced thereby.” (citation omitted)); Quality Rock Prods., Inc.
v. Thurston Cty., 108 P.3d 805, 813 (Wash. Ct. App. 2005) (noting that
“a defect in the caption of a land use petition’s summons” did not
warrant reversal “absent demonstrated prejudice”).
  ¶31 For these reasons we decline the request that we abandon the
element of prejudice in a case like this one. But we do acknowledge a
threshold concern about the viability of the precise formulation of
the standard of proof of prejudice in Springville Citizens. A
requirement of proof that a city’s land use decision “would have
been different,” Springville Citizens, 1999 UT 25, ¶ 31, is a high bar.
On reflection, in fact, we think this comes close to an insurmountable
barrier. See Gardner, 2000 UT App 1, ¶ 20 n.7 (suggesting that the
standard may be “impossible” to meet). And that is untenable.
 ¶32 This concern has led us to reconsider the standard in
Springville Citizens. In response to the briefing in this case we have
reevaluated the Springville Citizens standard. And we have
concluded that the time has come to revise the standard set forth in
Springville Citizens.5
 ¶33 Proof of prejudice is required. But the required standard of
prejudice should not be insurmountable. With that in mind, we hold
that a party challenging a land use decision is not required to prove
_____________________________________________________________

 5 We do not reach this conclusion lightly. We afford a measure of
deference to Springville Citizens under our doctrine of stare decisis. See
Eldridge v. Johndrow, 2015 UT 21, ¶ 21, 345 P.3d 553. But we find that
the Springville Citizens formulation is ripe for reconsideration
because it is unworkable in practice and incapable of being applied
in accordance with its literal terms. See id. ¶ 40 (explaining that
precedent is susceptible to being overruled when it’s unworkable—
or incapable of consistent application).


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                   POTTER v. SOUTH SALT LAKE CITY
                         Opinion of the Court


that the city’s decision “would have been different” absent the
violation of city law. See Sierra Club v. D.R. Horton-Schuler Homes,
LLC, 364 P.3d 213, 233 (Haw. 2015) (harmlessness inquiry “‘does not
require proof that the errors necessarily changed the result of the
proceeding below’” (citation omitted)). Instead, it is enough for the
challenging party to show that there is a reasonable likelihood that
the legal defect in the city’s process changed the outcome of the
proceeding.
 ¶34 We affirm, however, on the ground that Potter cannot
establish prejudice even under this more permissive standard. Potter
herself concedes that the alleged defects in the car dealership’s
petition had no effect on the outcome of the city council’s decision.
And the city was entitled to summary judgment because there is no
reasonable likelihood that the alleged defect in the petition had any
effect on the outcome of the proceedings.
                                   B
  ¶35 Potter also challenges the sufficiency of the public notice of
the city council meeting in question. The governing statute requires a
“public hearing” for “any proposal to vacate some or all of a public
street.” UTAH CODE § 10-9a-208(1)(a). It also requires the city to “give
notice of the date, place, and time of the hearing.” Id.
§ 10-9a-208(1)(b).
  ¶36 These requirements were fulfilled in advance of the city
council meeting in question. The city gave notice of a hearing in
which it planned to address the car dealership’s petition to vacate
portions of Truman and Burton Avenue. And that petition was in
fact the subject of the city council’s deliberations and decision.
 ¶37 Potter concedes these points. But she insists that the
sufficiency of the city’s notice was obviated by comments made by
the city attorney during the hearing. In those comments the city
attorney expressed his view that the question presented was not
whether to vacate the streets in question but how. The attorney opined
that the council’s approval of the prior petition was still on the table,
and thus that the question for the council was whether to accept the
conditions in the new petition or revert to the decision approving the
old one. And Potter contends that these comments somehow
obviated the sufficiency of the city’s notice.
 ¶38 Potter’s argument goes to the subject matter of the noticed
hearing. Because the city attorney reframed the debate for the
council, Potter insists that the hearing was not really about whether

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to grant the car dealership’s petition to vacate; it was about how best
to vacate the streets in question. And in Potter’s view that deprived
the public of adequate notice of the true subject matter of the
hearing.
 ¶39 Potter’s frustration is understandable. She and other residents
attended the public meeting believing they could persuade the city
council not to close the streets. But this does not make the city’s
notice insufficient. The governing statute requires only that the
public be given notice of the date, place, and time of the hearing on a
given petition to vacate. That notice was given. And the subject of
the hearing was in fact the car dealership’s petition: That was the
subject of the city council’s deliberations; and the council’s decision
was, in fact, to grant that petition.
  ¶40 Potter’s point, ultimately, is that the city attorney’s advocacy
affected the substance of the council’s deliberations. But that is
insufficient. Public hearings are unpredictable. City councilmembers
and public commenters often try to reframe a debate in ways that
favor their position. Yet that is not enough to obviate the sufficiency
of the notice of a hearing. The public notice can never anticipate all
of the twists and turns that may occur in a city council meeting. And
the public notice is sufficient “as long as the items actually
considered at the meeting are reasonably related to the subject
matter indicated by the notice.” Suarez v. Grand Cty., 2012 UT 72,
¶ 74, 296 P.3d 688 (citation omitted).
  ¶41 This standard is easily satisfied here. The hearing was
specifically and extensively focused on the petition to vacate that
was mentioned in the notice. And the city attorney’s comments
didn’t change that. The city attorney was offering views of relevance
to the question presented to the council—of whether to grant the car
dealership’s latest petition. Because those views were “reasonably
related” to the subject matter of the proceeding, there was no defect
in the notice given by the city.




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