DECISION BY THE LAND USE APPEALS HEARING OFFICER
PLNSUB2012-00030 Terrace Hills Circle Subdivision Amendment of Lot 3
Appeal of Planning Commission's approval of PLNSUB2012-00030 Terrace Hills Circle Subdivision Amendment of Lot 3 - Peter and Susan Dolan Stevens. Appeal filed by Josh Rhea and Evan Moore and others.
This appeal of a land use decision by the Salt Lake City Planning Commission came before the Appeals Hearing Officer in a hearing held on Wednesday, May 30, 2012. The matter was continued after that hearing to allow the parties to submit written materials for consideration on or before June 6, 2012 and to exchange responses to those materials on or before June 13, 2012. All of the parties participated in that exchange and provided written argument and discussion which has been reviewed.
DISPOSITION
The appeal is denied with regard to all issues raised. The legal issues raised were resolved in favor of the Planning Commission's actions and the City's conduct of the appeals process. The factual issues were resolved in favor of the Planning Commission's decision because there was substantial evidence in the record to support that decision.
ISSUE
Was the decision by the Salt Lake City Planning Commission to approve a petition for plat amendment valid or was it arbitrary, capricious or otherwise illegal?
STANDARD OF REVIEW
In reviewing a local land use decision, I am to presume that a decision, ordinance, or regulation made under the authority of the State Land Use, Development, and Management Act is valid and determine only if the decision is arbitrary, capricious, or illegal. A decision by the local land use authority is valid if the decision is supported by substantial evidence in the record and is not arbitrary, capricious, or otherwise illegal. Utah Code Ann. 10-9a-801(3). I am to uphold the decision if it is supported by substantial evidence in the record, and am to defer to the Planning Commission in making its decision unless it is shown that there was no substantial evidence supporting its decision. With regard to questions of law, I need only make slight deference to the Commission, and will review those issues based on whether or not the Commission was correct in its application of the law. The Appellants have the burden of proving that the decision appealed is incorrect and to marshal evidence that supports the decision and respond to that evidence with rebutting evidence.
PROCEDURAL ISSUES
Record of the Planning Commission Decision. The record of the decision appealed to the Appeals Hearing Officer, which was made by the Planning Commission on March 28, 2012, includes 103 pages of material duplicated for the parties prior to the review of this matter, the video tapes of the March 14 and March 28 meetings of the Planning Commission, and a power point slide show prepared and shown at the Planning Commission hearing on March 14, 2012 by Peter Stevens, the applicant. There has been some concern expressed that additional information, not part of the Planning Commission Record, has been offered for my consideration. This includes materials submitted with the appeals documents filed by the Appellant which initiated this matter and other documents offered or referred to at the hearing and in our email exchanges. I have not given that additional information any consideration and it does not factor into my decision.
2. Record of this Decision by the Appeals Hearing Officer. The record of my decision includes the Planning Commission record noted in paragraph 1, as well as the appeal filed by the Appellants, the staff report provided by the City, the tape recording of the hearing conducted May 20, 2012, and email exchanges among the parties and the hearing officer before and after the hearing. These emails include post-hearing briefs and responses by the parties. The record was closed on Wednesday, June 13, 2012 and no information provided after that date has been taken into account in making this decision.
3. Site Visit. A site visit was not made. While the Planning Commission did drive by the property involved and stop at the curbside in a City van, there is no evidence before me that my doing the same would assist me in any way in evaluating the validity of the Planning Commission's approval of the application. That is the consensus opinion of the Appellants and the City Staff as well, based on the comments made at the hearing conducted on this matter on May 30.
ISSUES OF LAW RAISED IN THIS APPEAL
4. Jurisdiction. The claim of Appellants that the Land Use Appeals Hearing Officer should not hear this matter is denied. There is no alternative appeals process available to the Appellants within the City's administrative structure, and Appellants have a duty to exhaust administrative remedies in a timely manner. The cases cited by the Appellant relate to judicial review processes, and not to administrative land use appeals. Based on the case of Patterson v. American Fork City, where the Utah Supreme Court described a very loose process for appeals for local land use decisions, the right of both the City and the Appellants to an informal appeals process is adequately satisfied by the Land Use Hearing Officer process. They have filed this timely appeal and the Appeals Hearing Officer will hear the matter to attempt to resolve it without any party having to bear the additional burdens of legal action.
5. Bias. The claim of Appellants that the Land Use Hearing Officer is biased is also denied. A simple reference that my previous experience as the Utah State Property Rights Ombudsman would unduly bias my views in favor of property owners is insufficient to establish a bias. I have no financial interest in the outcome of this matter. No party to this action has any business or personal relationship to me, other than my appointment as the Land Use Hearing Officer by the City of Salt Lake, which also employs those representing the City in this matter.
6. Sign on Property. The claim of Appellants that the Planning Commission procedures were fatally flawed by the alleged temporary loss of visibility for a sign placed at the property giving notice of a pending decision by the Planning Commission is also denied. Those claiming to have been prejudiced by this failure of notice were apparently present at the hearing and have no claim to challenge the notice if they had actual notice.
7. City Attorney's Advice. The claim of Appellants that the Planning Commission procedures were fatally flawed because the City Attorney present at the March 14, 2012 meeting did not hear a member of the commission ask him for a definition of the word "material" is denied. There is no evidence before me to establish that this was prejudicial. It would seem that if the lack of an answer to this question from the City Attorney would be to the Appellant's benefit because a commission that was less informed might have made prejudicial error in its decision that the Appellant could then point to as grounds for a reversal of the Planning Commission's decision.
8. Height Restriction. The claim of Appellants that the Planning Commission procedures were fatally flawed because no height restriction was imposed on the Plat Amendment which was the subject of this matter. According to the evidence presented at our hearing today by the City Attorney with four years’ experience with the Planning Commission, the members of the body are sufficiently informed to make a decision about whether to condition their approval or not. Since no member moved approval with conditions, or moved to amend the proposed approval by imposing a condition, I cannot assume any other intention by the commission in approving the Amended Plat.
9. Second Vote. The claim of Appellants that the Planning Commission could not place this application on a subsequent agenda because it had taken a vote on the application in a previous meeting is only supported by the general statement that such a procedure is not common. According to the statements of the Planning Commission's attorney at our hearing, it is commonly done in Salt Lake City. I know of no case law, ordinance, or statute that would prohibit placing an item on an agenda because a previous vote on that item was deemed insufficient to finalize the action of the Planning Commission. Accordingly, this claim is also denied.
10. Due Process. The claim of Appellants that they were entitled to notice of the placement of the application on the March 28 agenda was provisionally decided at the hearing on May 30, 2012. made an interim decision that this issue as claimed raises the Constitutional rights to full due process, including the rights of notice, the right to be heard, and the right to confront witnesses. In Dairy Product Services, Inc., v. City of Wellsville, (2000 UT 81; 13 P.3d 581), the Utah Supreme Court explains at 48 that the Utah Constitution provides that "no person shall be deprived of life, liberty or property, without due process of law." Utah Constitution, Article I, Section 7. According to Utah case law, however, this full due process right is available only when a "protected property interest" such as the business license at issue in the Wellsville case, is in jeopardy. A protected property interest is not the same as standing to appeal a decision (which the Appellants have in this case) or the less formal “due process" rights afforded by local ordinance or state statute providing for hearings and public comment.
There is no evidence before me that the City has not complied with the duty under its ordinances to provide notice of the hearing held on March 14, 2012, or its duty under state statute to publish an agenda for the Planning Commission's meeting of March 28, 2012 24 hours before that meeting. There is only a duty to provide notice to Appellants of the March 28 agenda if an item on that agenda might affect a "protectable property interest" as defined in our case law. The appellants and other parties were given a chance to provide authority supporting or opposing the proposition that the Appellants, or any of them, had a protectable property interest that was at risk when the Planning Commission decided to place the Stevens matter on its March 28 agenda and take another vote on the matter. If such an interest existed, the Appellants would have had a right to notice under the provisions of Constitutional Due Process, as did the property owners in Wellsville did. It is to be noted that the Appellants have not provided any proof of a protected interest in the Stevens property such as a specific documented access easement, prescriptive right, conservation or scenic easement. In their Supplemental Brief, Appellants discuss this issue but do not provide case authority supporting their contention that a Utah court or the court of any other jurisdiction has held that the owner of a property that does not a but a subject lot has a protected property interest in whether or not an application is granted that changes some aspect of the use of that subject lot, such as the changing of the building pad in this instance. Absent some such authority, I can only follow the common law reluctance to recognize constitutional property rights issues in this type of zoning dispute (Patterson v. American Fork City, 2003 UT 7).
ISSUES OF FACT RAISED IN THIS APPEAL
This matter involves a petition to amend an existing subdivision plat. According to the Salt Lake City Ordinances, at 20.31.090: STANDARDS FOR APPROVAL OF AMENDMENT PETITION: An amendment petition shall be approved only if it meets all of the following requirements (emphasis added):
A. The amendment will be in the best interests of the city; B. All lots comply with all applicable zoning standards;
C. All necessary and required dedications are made;
D. Provisions for the construction of any required public improvements are included; E. The amendment complies with all applicable laws and regulations; and
F. The amendment does not materially injure the public or any person and there is good cause for the amendment. (Ord. 7-99 § 23, 1999).
The duty of the Planning Commission in this instance is to review evidence provided to it and determine if all of these standards are met, and to base that decision only on substantial evidence. The Appellants here have eloquently articulated this standard. The Planning Commission's role is complicated by its duty to hold a public hearing on the matter, since members of the public are not intuitively tuned into this nuance, and very often focus on expectations, opinions, and preferences instead of substantial evidence supporting their conclusions as to whether or not an administrative petition should be approved.
That said, it is not the goal of this review or the land use regulation process to continue to impose higher and higher standards of proof and levels of expertise to determine such matters. As long as the input of the applicant and the neighbors is credible, relevant, and rational, it must be considered as evidence sufficient to support a decision. We have no interest in requiring that every discussion of vegetation, for example, be supported by an extensive analysis by a landscape architect on both sides.
11. Incidental Issues. A variety of issues raised by the Appellants and discussed in our hearing were resolved at the hearing. For example, in the list of six criteria that the Planning Commission must use to determine whether to approve an application for a Plat Amendment, listed as sections A-Fin Section 20-31-090 of the City's land use ordinances, only items A and Fare in dispute. The crux of the issue as to whether I can support the Planning Commission's decision therefore focuses on standards A and F.
12. Standard A - (The amendment will be in the best interests of the City). In support of the decision, the record includes comments by expert professionals, including the planning staff and the project architects, that native vegetation will be preserved by granting the application; that the revised lot configuration will provide more separation of the proposed residence and public trails and trail head; and that a number of immediate neighbors have expressed support of the proposed lot amendments. There has been some argument about the credibility or validity of the facts as submitted. If the source of the evidence presented is a professional such as a planning staff member or an architect, I must assume that it was "adequate" to support the decision, even if evidence was presented by others, even other professionals, to the contrary. That call was the Planning Commission's to make, and I will not substitute my judgment for theirs in this instance. Had there been no independent, relevant, and credible evidence to support a decision, however, it would have been my duty to reverse it.
13. Standard F - (The amendment does not materially injure the public or any person and there is good cause for the amendment). This standard is in two parts- first, does the amendment to the plat materially injure the public or any person? Second- is there good cause for the amendment? As to the second part, it is even less specific than Standard A, so I am constrained to decide that this substandard in Standard F is met if Standard A is met - if the amendment benefits the City, then there is good cause for approving it.
The first part of Standard F is, however, more problematic. Does the proposed amendment injure the public or any person? Is the injury "material"?
At the hearing, the Appellants and others presented extended argument that the proposed Plat Amendment would injure them and the public. The Commission obviously wrestled with the concerns expressed, as it discussed height limitations and other measures to mitigate the impact of the proposed amendment on the neighbors. Two members of the Commission voted against the approval on March 14 and three members of the Commission voted against approving the petition on March 28. These negative votes would indicate that the issue was considered by the Commission, and the split decision would also indicate that there were legitimate interests on both sides of the issue. At one point in the March 14 meeting, just before the vote, a member of the Planning Commission accurately stated the issues. To paraphrase: "If you feel the amendment benefits the City and does not materially injure any person or the public, vote yes. If you feel the amendment does not benefit the city or materially injures any person or the public, vote no." It is clear to me that the Planning Commission understood the matter at hand.
In my opinion, those opposing the petition provided substantial evidence to support their conclusion that the proposal would injure them or the public, for example citing light pollution on the ridge; impact on a protected area; and visual impacts. I also agree that, absent specific limitations on the size, height, and mass of the proposed home those opposing it can characterize the impact of the petition’s approval in terms of the maximum and most intrusive utilization of the newly configured building area envelope. These types of concerns are the subject of regulations in more than a few cities, and the public interest in protecting those values is well understood. If these are not legitimate concerns for the "public injury" standard, then we cannot defend the current level of land use regulations dealing with sensitive lands, hillsides, and height limits. If the Commission had denied the petition, and the petitioners were here on appeal, I would find that there was substantial evidence in the record to support the denial.
But that is not the issue before me- the petition was approved, so the evidence we are seeking (and it is our task to find it if it exists} is evidence sufficient to counter the evidence provided by the opponents. The necessary evidence is not equivalent evidence - the decision does not have to be by the weight of the evidence or a preponderance of evidence- there just has to be some substantial evidence to the contrary in the record to offset the evidence presented by the neighbors. To be upheld, the Commission needs to have had before it some substantial evidence that there is no injury, or that the injury is not material.
It is of interest to note that the type of evidence presented in this context of "public injury" is different than the type of evidence that would be presented on an issue of more precision. The concepts of "public injury" or what "benefits the City" clearly have an aspect of policy that are different than the more objective questions of whether or not specific easements are provided or public improvements completed. If the appellants argue that they raised the issues of public harm with sufficient evidence to support a decision in their favor, then I can only conclude that those seeking the approval also provided an adequate measure of evidence to support the opposite conclusion. According to the video tape, the applicant's architect and the city planner involved, both professionals, stated that fewer trees would be removed if the building area were amended, for example. Exhibits were provided and discussed related to conserving natural areas, the height and location of other homes in the area, and visual impacts of the proposal. It was the Planning Commission's call to decide how to deal with the application, and it could have gone either way. There was evidence on both sides of the issue.
With regard to private injury, the issue is a little more nuanced, and I am upholding the Planning Commission decision that there was no material private injury or that if there was private injury, it was not material. Those opposing the application cited several valid concerns, such as privacy and their expectation that the existing plat for the subdivision would govern future development. I am unaware of any case law establishing a property right in one's rear yard area being obscured from the view of a neighbor, nor a vested right in an existing subdivision plat which cannot be amended through the appropriate land use process. The City has offered a process to deal with these issues by providing notice and a hearing before a plat is amended, and in this case that process has been demonstrated to be functioning well. The nearby landowners were given notice of the proposed amendment, were allowed to submit testimony and evidence for the record, participated in the hearing, almost succeeded in winning the split vote of the Planning Commission, and have had a full review of the decision on appeal. I have concluded that their interests in the issue have been heard and there was no error in how the Planning Commission resolved the questions posed.
Since there was substantial evidence in the record supporting the decision that no person or the public was materially injured by the approval, I deny the appeal with regard to this standard as well.
CONCLUSION
The decision by the Planning Commission to approve the petition for a plat amendment is upheld. The appeal of this matter is denied with respect to all issues raised by the Appellants.
Dated this 19 day of June, 2012 – Craig M Call. Appeals Hearing Officer.