Opinion
Case No. 20001024-CA.
Filed March 21, 2002. (Not For Official Publication)
Appeal from the Second District, Farmington Department, The Honorable Darwin C. Hansen.
Randy B. Birch, Heber City, for Appellant.
Michael Z. Hayes and Todd J. Godfrey, Salt Lake City, for Appellee.
Before Judges Jackson, Greenwood, and Thorne.
MEMORANDUM DECISION
Appellant Douglas R. Smith appeals the trial court's grant of summary judgment to Woods Cross City. We affirm.
Smith first argues that the trial court erred in failing to consider the three affirmative defenses first raised in his opposition to Woods Cross's summary judgment motion. "Summary judgment is proper when `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Town of Alta v. Ben Hame Corp., 836 P.2d 797, 804 (Utah Ct.App. 1992) (citation omitted). To properly raise any affirmative defense, and therefore have these defenses before the court, a defendant must merely plead the defense in his answer to the complaint. See General Ins. Co. of Amer. v. Carnicero Dynasty Corp., 545 P.2d 502, 504 (Utah 1976). A general denial, pursuant to rule 8(b) of the Utah Rules of Civil Procedure, is insufficient. See id. Nor is it sufficient for a defendant to attempt to blanket the field by pleading "any other matter constituting an avoidance or affirmative defense as may be disclosed through discovery," as Smith did in this case. See id. (stating "since the enumeration of affirmative defenses in Rule 8(c) is not exclusive, `any other matter constituting an avoidance or affirmative defense' must also be pleaded"). When a defendant fails to properly raise an affirmative defense, a trial court may properly deem the affirmative defense waived. SeeValley Bank Trust Co. v. Wilken, 668 P.2d 493, 494 (Utah 1983).
Here, while Smith's answer contained reference to many of the enumerated affirmative defenses found in rule 8(c), he pleaded none of the three affirmative defenses underlying his argument on appeal. Nor did he properly file a motion to amend the answer to include these defenses. In so failing, Smith waived these defenses, and the trial court properly refused to consider them in its decision.See Valley Bank, 668 P.2d at 494 (stating "[i]f we were to uphold this manner of injecting new issues into a case, summary judgment could always be thwarted by the procedure attempted here by the appellant").
Smith filed a rule 56(f) motion, which included a request in the alternative for leave to amend should the trial court deny the motion. The trial court, however, granted the rule 56(f) motion thereby abrogating Smith's request in the alternative, and Smith failed to resurrect the request at any time thereafter.
Smith next argues that the trial court erred in not finding that his use of the property was a valid accessory use. However, Woods Cross has established clear regulations concerning accessory uses for property zoned as light industrial. See Woods Cross City, Utah, Zoning Ordinance § 12-12-104 (1991). Effectively, "[a]ccessory uses in buildings customarily incidental to the permitted uses and conditional uses provided herein may be approved by the City in accordance with the provisions in this title." Id. The undisputed facts show that Smith not only failed to apply for, or obtain, approval from Woods Cross for a "permitted or conditional use" of the property, he also failed to seek approval from Woods Cross for any conduct that could be construed as an accessory use of the property. Therefore, any use of the property that did not conform with Woods Cross zoning requirements constituted a violation of the requirements.
Smith further suggests that because his use of adjacent property is lawful, his use of the lots central to this appeal is therefore a valid non-conforming accessory use. He is incorrect. "A nonconforming use may not be established through use which from its inception violated a zoning ordinance. Such use has no right to continue." Ben Hame, 836 P.2d at 802. Smith acquired the property well after the zoning restrictions were in place, and the restrictions should have been clear to him at that time. Moreover, the mere fact that his use of adjacent property, located in an adjacent community, is lawful in no way changes the character of the Woods Cross property. Absent compliance with the Woods Cross zoning requirements, or approval from Woods Cross, Smith's use of the property was unlawful. Accordingly, the trial court properly refused to declare Smith's use of the property a valid accessory use.
Finally, Smith argues that the trial court erred in its ruling concerning lot 14. We do not agree. The trial court order forbade Smith from using the lot in violation of the zoning regulations. Any use not in violation is certainly beyond the scope of both the trial court's power and its order. Accordingly, Smith may continue to use lot 14 in any fashion not in violation of the Woods Cross zoning regulations, including using the property to store personal vehicles "as an employee benefit or [for] other trucking related business use."
At oral argument, counsel for Woods Cross conceded that Smith's historic use of lot 14, absent the storage of large trucks or other objects that would violate the zoning regulations, was not in violation of zoning regulations and would not be challenged.
Accordingly, we affirm the trial court's grant of summary judgment in favor of Woods Cross City.
WE CONCUR: Norman H. Jackson, Presiding Judge, Pamela T. Greenwood, Judge.