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Osmond Senior Living LLC v. Utah Dep’t of Pub. Safety, 2018 UT App 218 (Nov. 23, 2018)

Nov 23, 2018

The developer of a nursing home facility obtained a building permit to construct a new three-story facility.  After construction was well underway, the State Fire Marshall told the developer that the third floor violated building codes, prompting the developer to change its plans and convert the building into a two-story facility.  The developer did not appeal or otherwise seek review of the marshal’s directive at that time.  About six months later, the marshal reversed course, and told the developer that three story facilities were now allowed.  The developer then filed this unconstitutional takings claim against the Department of Public Safety seeking to recover the millions in revenue and renovations costs it had lost.  The court affirmed dismissal of the claim on jurisdictional grounds.  It concluded that the legislature has delegated adjudicative authority for interpretations of the State Fire Code to local fire protection districts, and that the developer was required to exhaust its administrative remedies prior to filing suit because the marshal’s actions were within the scope of his statutory authority.