STEVEN H.

BERGMAN [13641]
RICHARDS BRANDT MILLER NELSON If you do not respond to this
111 E. Broadway, Suite 400 (84111) document within applicable time
P.O. Box 2465 limits, judgment could be
Salt Lake City, Utah 84110-2465 entered against you as requested.
steven-bergman@rbmn.com
Telephone: (801) 531-2000
Fax No.: (801) 532-5506
Attorney for Petitioner
Robert Theobald

IN THE THIRD JUDICIAL DISTRICT COURT

IN AND FOR SUMMIT COUNTY

ROBERT THEOBALD, an individual, Petition for Review of Land Use Decision

or, in the alternative,
Petitioner, Petition to Enforce Municipal Ordinances
and Code of Park City
vs.
Civil No.
PARK CITY MUNICIPAL
CORPORATION, a municipality; Judge
CRESCENT VERTICAL, LLC, a Utah
limited liability company, Tier 2

Respondents.

Petitioner ROBERT THEOBALD, an individual, by and through counsel of record,

Steven H. Bergman of RICHARDS BRANDT MILLER NELSON, and pursuant to Rule 8 of the Utah

Rules of Civil Procedure and Sections 801 and 802 of the Municipal Land Use, Development,

and Management Act, U.C.A. §§ 10-9a-801 & 802, hereby seeks review of a final Land Use

Decision of Respondent Park City Municipal Corporation (“Park City”), or in the alternative,
enforcement of applicable provisions of the Park City Municipal Code and Ordinances against

violations of the same by Respondent Crescent Vertical, LLC.

Parties

1. Petitioner Robert Theobald is a long-time resident of Park City, Utah who resides

at 2810 Holiday Ranch Loop Road, Park City, Utah 84060.

2. Respondent Park City Municipal Corporation is a municipality of the State of

Utah with an official address of 445 Marsac Avenue, P.O. Box 1480, Park City, Utah 84060.

3. Respondent Crescent Vertical is a Utah limited liability company with an address

of 255 N. Main Street A18, Park City, Utah 84060 according to records on file with the Utah

Division of Corporations.

4. On information and belief, Respondent Crescent Vertical is owned, in whole or in

part, by Gerry and Sarah Hall, and in turn, Crescent Vertical owns that certain real property

located at 2750 Meadow Creek Drive, Park City, Utah 84060.

5. Petitioner’s property at 2810 Holiday Ranch Loop Road adjoins Crescent

Vertical’s property at 2750 Meadow Creek Drive (the “Crescent Vertical Property”).

6. The final Land Use Decision(s) to be reviewed are: (i) the issuance of an

Amended Building Permit, Number 21-1302, as amended December 7, 2022, issued to Crescent

Vertical; (ii) other matters outside of the building permit, such as the planting of trees with

improper permitting and the City’s failure to enforce; (iii) the denial of Petitioner’s and other

parties’ December 9, 2022 Complaint, as amended February 15, 2023, re the Crescent Vertical

property on March 21, 2023; and (iv) Park City’s refusal to hear Petitioner’s timely appeal to the

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Board of Adjustment as set forth in an April 13, 2023 letter to Petitioner from Park City’s

Planning Director.

7. The Building Permit, as amended, issued to Crescent Vertical for the Crescent

Vertical property is attached hereto as Exhibit 1.

8. The Complaint by Petitioner and others submitted December 9, 2022 is attached

hereto as Exhibit 2.

9. The Amended Complaint by Petitioner and others submitted on February 15, 2023

is attached hereto as Exhibit 3.

10. Petitioner’s timely March 31, 2023 appeal to the Park City Board of Adjustment

of the unwritten denial of Petitioner’s and other parties’ Complaint is attached hereto as Exhibit

4.

11. Park City’s letter denying Petitioner’s appeal to the Board of Adjustment dated

April 13, 2023 is attached hereto as Exhibit 5.

Jurisdiction, Venue, and Standing

12. Jurisdiction in this Court is proper as all parties are residents or entities of the

State of Utah.

13. Venue is proper in this Court as this Petition concerns Land Use Decisions

concerning real property in Summit County.

14. Petitioner has standing to bring this Petition as he is an adversely affected party

who owns property within 300 feet of the boundary of the Crescent Vertical property and has

submitted a written Complaint regarding the Amended Permit issued to Crescent Vertical and

other violations of the Park City Municipal Code and Ordinances.

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 Factual Background

15. Petitioner owns real property located at 2810 Holiday Ranch Loop Road that

adjoins the Crescent Vertical property.

16. The Crescent Vertical property is located at 2750 Meadow Creek Drive, is located

in the Willow Ranch Subdivision and is Lot 2-AM.

17. The Willow Ranch Subdivision is zoned in the Estate District and is within the

Sensitive Lands Overlay. See Park City Official Zoning Map available at

https://parkcity.maps.arcgis.com/home/index.html.

18. Crescent Vertical acquired the Crescent Vertical property on or about August 26,

2020.

19. During 2021, Crescent Vertical sought to renovate the Crescent Vertical property,

and in connection with those renovations sought to amend the Plat for the Crescent Vertical

property and subsequently sought a Building Permit for the renovations.

20. The Plat amendment process began first, with the Park City City Council

approving an ordinance in April 2021 to amend the Plat. See Ordinance 2021-20 (April 29, 2021)

(attached hereto as Exhibit 6).

21. Initial signatures on the Amended Plat date from July 2021.

22. Lot 2 Willow Ranch Replat First Amended for the Crescent Vertical property was

recorded as Entry No. 1181780 on January 20, 2022 with the Summit County Recorder. A true

and correct copy of the Replat First Amended is attached hereto as Exhibit 7.

23. Crescent Vertical applied for a Building Permit on or about October 1, 2021, with

the application being assigned No. 21-1302.

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 24. The application was incomplete in several respects. First, the application included

plans to add a pool, but no application was made for a Conditional Use Permit for the pool.

25. Under applicable provisions of the Park City Land Management Code (“LMC”),

including LMC 15-2.10-2(B)(19) on the date that the original permit was issued, i.e., October 27,

2021, pools, spas, and similar facilities were conditional uses that required a Conditional Use

Permit.

26. On October 27, 2021, the definition of Recreation Facilities, Private in LMC 15-

15-1 was as follows:

Recreation Facilities, Private. Recreation facilities operated on private Property

and not open to the general public. Including Recreation Facilities typically
associated with a homeowner or Condominium association, such as pools, tennis
courts, playgrounds, spas, picnic Areas, similar facilities for the Use by Owners
and guests.” (emphasis added)

27. Notwithstanding that the Park City Planning Commission deleted some of the

terms from the definition of Recreation Facilities, Private in the LMC, the amended definition of

Recreation Facilities, Private on April 4, 2022, still requires a CUP for the ongoing construction

on Lot #2. The amended definition was:

Recreation Facilities, Private. Recreation facilities operated on private Property and not
open to the general public, including Recreation Facilities such as swimming pools,
tennis courts, outdoor Pickleball Courts, and similar facilities for the Use by Owners and
guests.” (emphasis added)

28. The amendment of the definition in 2022 was done with Sarah Hall, both a

Planning Commissioner and a manager of Crescent Vertical, participating in the discussion of

the amendment and voting on the amendment without disclosing that the change was being

proposed in part because of the issues with her Building Permit.

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 29. Second, the application did not include complete plans for the home, with

inaccurate floor plans (including missing pages) and no square footage calculations stamped by a

registered architect as required by the LMC. The latter is significant, as the Amended Plat for the

Crescent Vertical property and Park City Ordinance 2021-20 both include express limitations on

the size of the home. For example, Plat Note 13 states that “[t]he Home square footage is limited

to a maximum of 9,300 square feet, excluding the first 600 square feet of the attached garage

space per CC&Rs and the City’s Land Management Code.” Amended Plat, Note 13 (Ex. 7); see

also Amended Plat Note 19 (“Floor plans for both house and barn shall be submitted at the time

of a building permit for any modification to the house and any new construction for the barn,

showing that the combined maximum square footage will not exceed 9,800 square feet. Plans

must be stamped and signed by a registered architect to ensure the maximum total square footage

is not exceeded.”); Ordinance 2021-20, Condition of Approval 16 (Ex. 6.)

30. Park City further did not require Crescent Vertical to prepare a Sensitive Lands

Overlay analysis as required by LMC 15-2.21 for all lands within Sensitive Lands Overlay Zone

and 15-2.10-6 for Conditional Uses in the Estate District, such as the Crescent Vertical property.

31. Nor did Park City require Crescent Vertical to “provide a wetlands delineation by

a qualified professional utilizing the methods of the 1987 Army Corp of Engineers Manual for

Identifying and Delineating Jurisdictional Wetlands, as amended.” LMC 15-2.10-6 & 15-2.21-6.

32. Notwithstanding these deficiencies in the application, the Planning Department

issued a Building Permit to Crescent Vertical on October 27, 2021.

33. When issues with the Permit were raised by Petitioner and others with David

Thacker, Chief Building Official for Park City, Mr. Thacker wrote to Gerry Hall, one of the

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managers of, and a beneficial owner of, Crescent Vertical, informing him of the issues with the

pool and square footage. For example, in an email dated November 11, 2022, Mr. Thacker stated

that:

The concerns we have received related to the total square footage of the home and
pool are not clear in the current set of plans. Specifically, the building plans do not
have the total square footage of the building noted as it is proposed to be built.

The approved plans have several areas not included in the square footage totals, and
an amended page submitted (showing additional finished area) but not calculated.
Additionally, the pool does not have clear dimensions on the plan. Per our previous
conversation it was indicated this is not a pool but a hot tub. However, the originally
submitted and updated pool plans all note this is a pool.

We are asking for the following to move forward:

1. A plan showing the dimensions of the pool (width, length, and depth). The pool
plans indicate two areas of a pool. Please indicate what is proposed to be built

2. A CUP application for a pool will be required based on Land Management Code
regulations unless the plans are updated and approved as a hot tub.

3. A licensed Utah State Architects stamped and signed set of plans showing the
actual square footage of the structure including the pool area.

(Email attached hereto as Exhibit 8.)

34. Even though Crescent Vertical did not provide the three things Mr. Thacker

requested, an Amended Building Permit 21-1302 was apparently issued on December 7, 2022.

Subsequent emails between Mr. Thacker and Mr. Hall indicated that Mr. Thacker was still

reviewing materials after the Amended Permit was purportedly issued.

35. Having not received any determinative response or actions from Park City, on

December 9, 2022, Petitioner Theobald, along with three other neighbors (collectively

“Complainants”), filed a Complaint with Park City. (See Exhibit 2.)

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 36. In addition to issues involving the lack of a CUP for the pool, the absence of

Sensitive Lands Overlay analysis, and the square footage issues, the December 9, 2022

Complaint also raised issues with wetlands and wildlife protection and disturbance, fencing

issues and view corridors, including planting of trees outside the allowed limits of disturbance

set forth in the Willow Ranch CC&Rs incorporated into the Amended Plat as established by the

Army Corps of Engineers. The Complainants requested an immediate stop work order.

37. On February 15, 2023, the Complainants supplemented their Complaint with

additional information, including additional evidence that the square footage was in excess of the

maximum allowed by the Amended Plat and that Crescent Vertical’s attempt to circumvent the

CUP process by recharacterizing the pool as a hot tub was improper. (See Exhibit 3.)

38. There were a number of meetings and telephone calls between Petitioner, his

neighbors, and various City officials, including Mr. Thacker, the Chief Building Official, Nann

Worel, Park City Mayor, and Margaret Plane, Park City City Attorney.

39. One such telephone conference call occurred on March 21, 2023 between among

Petitioner, Mayor Worel, and City Attorney Plane wherein Mayor Worel and City Attorney

Plane orally indicated to Petitioner and Mr. Jensen that Park City would not be pursuing the

Complaint further, although nothing in writing was provided.

40. On March 30, 2023, in a discussion with Mr. Thacker, Petitioner learned that Mr.

Thacker was no longer investigating the December 9, 2022 Complaint, as amended, and that he

would not be preparing a written response or final decision to the December 9, 2022 Complaint,

as supplemented February 15, 2023. Mr. Thacker further indicated that Mayor Worel and City

Attorney Plane would be handling any further investigation or decisions.

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 41. Based on the discussion with Mr. Thacker, Petitioner believed that Park City

intended for the March 21, 2023 meeting between Petitioner, Mayor Worel, and City Attorney

Plane, to be Park City’s final response to the December 9, 2022 Complaint.

42. Accordingly, on March 31, 2023, Petitioner timely appealed the unwritten denial

of the December 9, 2022 Complaint to the Board of Adjustment. The Appeal included the

December 9, 2022 Complaint, the supplementation of that Complaint on February 15, 2023, and

several other exhibits, including two Letter Reports, a PowerPoint presentation, a chart of home

square footage calculations from various methods, and the Amended Plat. A true and correct

copy of the Appeal and Exhibits are attached hereto as Exhibit 4.

43. The Appeal also referenced Planning Commission meetings on February 23, 2022

and March 23, 2022, where Sarah Hall, who is a sitting Planning Commissioner, as well as one

of the managers and beneficial owners of Crescent Vertical, proposed and participated in

discussion and voting to amend the LMC to exempt hot tubs from the CUP process – without

disclosing that such a change would specifically benefit her incomplete Building Permit

application.

44. Finally, the Appeal referenced the decision of the Board of Adjustment from

March 1, 2022 In the Matter of the Appeal Filed by Third Party Neighbor regarding an

Enforcement Complaint-Complaint Alleges Previously Issued Building Permit Violated Limit of

Disturbance Restrictions in the Willow Ranch Subdivision Plat and City Ordinance enacting the

same wherein the Board of Adjustment determined that the Willow Ranch Plat (which is also

applicable to Crescent Vertical) expressly precluded violation of the Limits of Disturbance on

the Amended Plat. (See Exhibit 7.)

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 45. On April 13, 2023, Gretchen Milliken, the outgoing Park City Planning Director,

advised Petitioner by letter that Park City would not consider his appeal to the Board of

Adjustment, asserting that the appeal was not timely and that there was no final action to appeal.

(See Exhibit 5.)

District Court Review under the Municipal Land Use, Development, and Management Act

46. Section 801 of the Municipal Land Use. Development, and Management Act

(“MLUDMA”) provides that an adversely affected party may file a Petition for Review of a land

use decision with the District Court within 30 days after a decision is final provided that the

Petitioner has exhausted all administrative remedies.

47. Section 801 further provides that the District Court may review any land use

decision that is arbitrary and capricious or illegal.

48. “A land use decision is arbitrary and capricious if the land use decision is not

supported by substantial evidence in the record.” U.C.A. § 10-9a-801(3)(c)(i).

49. “A land use decision is illegal if the land use decision: (A) is based on an

incorrect interpretation of a land use regulation; (B) conflicts with the authority granted by this

title; or (C) is contrary to law.” Id. § 10-9a-801(3)(c)(ii).

50. Section 802 of MLUDMA provides that an adversely affected party may

alternatively seek enforcement of an applicable municipal code or ordinance, whether by

directing the land use authority to enforce the applicable codes or ordinances or by direct

enforcement by the District Court.

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 51. Among other things, the District Court can issue injunctions, mandamus,

abatement or other appropriate actions and can prevent, enjoin, abate or order removed an

unlawful building or act.

52. Section 802 further provides that it is an “infraction to erect, construct,

reconstruct, alter, or change the use of any building or other structure within a municipality

without approval of a building permit.” U.C.A. § 10-9a-802(2)(b).

First Cause of Action

(Against Park City Municipal Corporation)
(Review of Illegal Permit)

53. Petitioner incorporates by reference Paragraphs 1 through 52 of this Petition as if

stated herein.

54. Petitioner is an adversely affected party from a final land use decision of Park

City, as he resides within 300 feet of the boundary of the property at issue, the Crescent Vertical

Property.

55. Petitioner timely challenged the final land use decision, submitting a Complaint

with others on December 9, 2022 that challenged Park City’s issuance of an Amended Building

Permit to Crescent Vertical on December 7, 2022.

56. The December 7, 2022 Amended Permit was illegal or unlawful as Crescent

Vertical did not obtain a Conditional Use Permit for the pool, did not conduct a Sensitive Lands

Overlay analysis or provide a wetlands analysis, and sought to renovate a home that exceeded the

maximum square footage permitted by the Amended Plat and Park City Ordinance 2021-20.

57. Petitioner has exhausted all administrative remedies, seeking repeatedly to obtain

a written decision on the December 9, 2022 Complaint, as supplemented on February 15, 2023,

11
and then timely appealing to the Park City Board of Adjustment when the Mayor and City

Attorney told Petitioner that Park City would not provide a written determination on the

December 9, 2022 Complaint.

58. Park City then refused to permit Petitioner to appeal the decision to the Park City

Board of Adjustment in a letter dated April 13, 2023.

59. In addition to issuing an unlawful or illegal Amended Building Permit, Park City

acted arbitrarily and capriciously in refusing to issue a written determination to the December 9,

2022 Complaint and refusing to allow Petitioner to appeal that refusal to the Park City of Board

of Adjustment.

60. Park City’s actions are arbitrary and capricious as their own records indicate that

the Amended Building Permit was not lawful, yet Park City has refused to require submission of

a legal and valid application.

61. Park City’s actions are illegal as they are acting in violation of numerous Park

City LMC provisions and ordinances, including, but not limited to LMC 15-2.10-2. 15-2.10-6,

and 15-2.21-6 and Park City Ordinance 2021-20.

62. Wherefore, Petitioner seeks an order of this Court instructing Park City to revoke

Amended Building Permit 21-1302 or to permit Petitioner to appeal the challenge of Amended

Building Permit 21-1302 and the denial of the December 9, 2022 Complaint, as supplemented on

February 15, 2023, to the Park City Board of Adjustment.

63. Petitioner further seeks an order of this Court instructing Park City to issue a Stop

Work Order to Crescent Vertical pending submission of a lawful application for a Building

Permit for the Crescent Vertical property, including a Conditional Use Permit, a Sensitive Lands

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Overlay analysis, and a wetlands analysis, or an order of this Court requiring a determination by

the Board of Adjustment.

Second Cause of Action

(Against Park City Municipal Corporation & Crescent Vertical)
(Enforcement of Park City Municipal Code and Ordinances)

64. Petitioner incorporates by reference Paragraphs 1 through 63 of this Petition as if

stated herein.

65. Petitioner is an adversely affected party from a final land use decision of Park

City, as he resides within 300 feet of the boundary of the property at issue, the Crescent Vertical

Property.

66. Respondent Crescent Vertical is renovating a home in the Estate District and

Sensitive Lands Overlay Zone of Park City in violation of numerous Park City Land

Management Code provisions, the Amended Plat for the Crescent Vertical Property, and Park

City Ordinance 2021-20.

67. Respondent Park City is not enforcing these violations.

68. These violations include:

a. Constructing a Recreational Facility in the Estate District without first

obtaining a Conditional Use Permit;

b. Renovating a home that exceeds the maximum permitted square footage as

set by the Amended Plat and Park City Ordinance 2021-20, as calculations

of the actual square footage of the Crescent Vertical property all exceed

9,300 feet (see Exhibit 9);

c. Failing to prepare a Sensitive Lands Overlay analysis;

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 d. Failing to prepare a wetlands analysis;

e. Building and/or altering the vegetation outside the Limits of Disturbance set

forth in the Amended Plat;

f. Removing and altering the vegetation in a wetlands area and in a wildlife

corridor; and

g. Blocking view corridors in violation of the Limits of Disturbance as set

forth in the Amended Plat.

69. These violations can only be enforced by this Court, as Park City refuses to do so.

70. Wherefore, this Court should enjoin further building or other activity on the

Crescent Vertical property unless and until Crescent Vertical submits a complete and compliant

building permit application that includes an approved Conditional Use Permit and valid Sensitive

Lands Overlay and wetlands analyses.

71. The Court should further order Crescent Vertical to comply with the maximum

square footage limitations allowed on the Amended Plat and by Park City Ordinance 2021-20.

72. The Court should further order Crescent Vertical to restore all areas outside the

Limits of Disturbance that have been restored and to remove any and all vegetation that does not

comply with the Amended Plat and the Park City Municipal Code.

73. Alternatively, this Court should issue a writ of mandamus to Park City to enforce

the Park City Municipal Code and Park City Ordinance 2021-20, to issue a Stop Work Order to

Crescent Vertical and to require Crescent Vertical to comply with all requirements of the Park

City Municipal Code and Park City Ordinance 2021-20 before work can resume.

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 Prayer for Relief

Wherefore, Petitioner prays for relief as follows:

A. For entry of Judgment in favor of Petitioner and against Respondents;

B. For an Order of this Court directing Park City to:

i. Revoke Amended Building Permit 21-1302;

ii. Permit Petitioner to appeal the challenge of Amened Building Permit 21-

1302 and the denial of the December 9, 2022 Complaint, as supplemented on February

15, 2023, to the Park City Board of Adjustment;

iii. Issue a Stop Work Order to Crescent Vertical pending submission of a

lawful application for a Building Permit for the Crescent Vertical property, including a

Conditional Use Permit, a Sensitive Lands Overlay analysis, and a wetlands analysis; and

iv. Refer the Appeal of Petitioner to the Park City Board of Adjustment;

C. Alternatively, for this Court to issue a Writ of Mandamus to Park City to enforce

its municipal code and Ordinance 2021-20 and:

i. Issue a Stop Work Order to Crescent Vertical;

ii. Require a deed restriction or new Plat Note indicating that all permitted

buildable square footage has been consumed and that a Barn or other outbuilding may not

be constructed on the property; and

iii. Require Crescent Vertical to comply with all requirements of the Park

City Municipal Code and Park City Ordinance 2021-20 before work can resume;

D. Alternatively, this Court should enjoin further building or other activity on the

Crescent Vertical property unless and until Crescent Vertical submits a complete and compliant

15
building permit application that includes an approved Conditional Use Permit and valid Sensitive

Lands Overlay Zone and wetlands analyses;

E. The Court should further order Crescent Vertical to remove any construction that

causes the home to exceed the maximum square footage allowed on the Amended Plat and by

Park City Ordinance 2021-20; and

F. The Court should further order Crescent Vertical to restore all areas outside the

Limits of Disturbance that have been restored and to remove any and all vegetation that does not

comply with the Amended Plat and the Park City Municipal Code;

G. For Petitioner’s costs of suit; and

H. For such further or other relief as the Court deems appropriate.

Dated: May 12, 2023. Respectfully submitted,

RICHARDS BRANDT MILLER NELSON

s/ Steven H. Bergman
Steven H. Bergman
Attorneys for Petitioner Robert Theobald
\\RB-APP1\PERFECTLAW\EDSI\DOCS\22910\0001\1EM1156.DOC

16
H. Craig Hall (1307)
Hyrum J. Bosserman (16404)
KC Hooker (18018)
BENNETT TUELLER JOHNSON & DEERE
3165 East Millrock Drive, Suite 500
Salt Lake City, Utah 84121
(801) 438-2000
chall@btjd.com
hbosserman@btjd.com
kchooker@btjd.com
Attorneys for Petitioner

IN THE THIRD JUDICIAL DISTRICT COURT IN AND FOR SUMMIT COUNTY

STATE OF UTAH

ROBERT THEOBALD, an NOTICE OF APPEARANCE OF COUNSEL

individual, Petitioner,
Case No. 230500181
vs.
Judge Kent Holmberg
PARK CITY MUNICIPAL
CORPORATION, a municipality;
CRESCENT VERTICAL, LLC, a
Utah limited liability company,

Respondents.

TO THE COURT AND COUNSEL OF RECORD:

Please take notice that H. Craig Hall, Hyrum J. Bosserman, and KC Hooker of the law

firm of Bennett Tueller Johnson & Deere, hereby enters her appearance in the above-entitled

case, as counsel for Robert Theobald. All documents, correspondence, and court pleadings

generated in this case should, until further notice, be directed to:

 H. Craig Hall
Hyrum J. Bosserman
KC Hooker
BENNETT TUELLER JOHNSON & DEERE
3165 East Millrock Drive, Suite 500
Salt Lake City, Utah 84121
(801) 438-2000
chall@btjd.com
hbosserman@btjd.com
kchooker@btjd.com

DATED this 29th day of August, 2023.

BENNETT TUELLER JOHNSON & DEERE

/s/ Hyrum J. Bosserman

H. Craig Hall
Hyrum J. Bosserman
KC Hooker
Attorneys for Petitioner

CERTIFICATE OF SERVICE

I hereby certify that on the 29th day of August, 2023, I caused a true and correct copy

of the foregoing NOTICE OF APPEARANCE OF COUNSEL was served on all counsel

of record via the Court’s electronic filing system.

/s/ Samantha Perez