DECISION BY THE LAND USE APPEALS HEARING OFFICER SALT LAKE CITY
Petition No. PLNBOA2012-00859 Jelm Appeal
Property Address: 2018 south 1700 East
Hearing Date: March 6, 2013
Re: An appeal by George Kristian Jelm of a decision by the City Zoning Administrator to regulate skateboard ramps as a "swimming pool, tennis court, game court or similar use.” The Subject Property is located in the R-1-7000 (Single Family Residential) zoning district.
This matter was heard by the Salt Lake City Appeals Hearing Office, Craig Call, on March 6, 2013. The Appellant, Kristian Jelm, was present as was Ray Milliner, Nick Norris, and Cheri Coffey from the City Planning Staff.
Standard of Review: The hearing officer, when hearing an appeal from a decision of the zoning administrator, hears the matter de novo. This is not a record review and no deference is to be afforded the decision of the administrator.
Issue: The Land Use Ordinance, at Table 21A.36.020.B provides that a "swimming pool, tennis court, game court or similar use" may not be placed closer than ten feet to a property line. The same table provides that "recreational equipment" may be placed closer than ten feet to a property line. Mr. Jelm has begun the placement of a skateboard ramp closer than ten feet to a property line of a residence.
Evidence and Argument: Mr. Jelm presented evidence and argument that a skateboard ramp should be regulated as recreational equipment, and that such a use is not a "similar use" to a swimming pool, tennis court, or game court. He stated that a skateboard ramp is more temporary than these uses. He further argued that some recreational equipment such as a basketball standard, which the City regulates as recreational equipment, can involve activities that produce significant noise from dribbling during play. He also points out that all uses must comply with the City’s noise ordinance.
Mr. Milliner of the City Staff stated that a skateboard ramp is more like a swimming pool or tennis court than it is like recreational equipment. A skateboard ramp is used by adults and athletes in the manner that swing sets are not. Building permits are not required for recreational equipment, but they are required for swimming pools and tennis courts. Permits are needed for structures exceeding 180 feet in area, six feet or more in height, or which are anchored to the ground. A permit is not required, however, for a basketball standard which can be both anchored and taller than six feet.
Mr. Jelm stated that the skateboard ramp in question is 16 feet wide, 28 feet long and 4 feet tall. He started the assembly and placement of the ramp in June of last year and was ordered to stop construction on September 20. He stated that he was unaware of any duty to get a building permit. Based on the information provided by City Staff, no clear determination was made as to whether he needs one to build the ramp now.
Conclusion: Under Utah Law, an ordinance is to be interpreted to carry out the intent of the legislative body that wrote the ordinance. So when we interpret a law, we look first to its plain language; only if the law's language is ambiguous do we rely on other methods of statutory interpretation; Toone v. Weber County, 2002 UT I 03, 12. The primary goal in interpreting the law is to give effect to the legislative intent, as evidenced by the plain language, in light of the purpose the statute was meant to achieve; Mouty v. Sandy City, 2005 UT 41, 17
Because zoning ordinances are in derogation of a property owner's common-law right to unrestricted use of his or her property, provisions therein restricting property uses should be strictly construed, and provisions permitting property uses should be liberally construed in favor of the property owner; Patterson v. Utah County Bd. of Adj., 893 P.2d 602,606 (UT App 1995).
This is not an easy decision to make, but my dilemma itself persuades me that I must hold for the property owner/Appellant. Based on the lack of clear legislative intent, I find in favor of the Appellant and hold that to treat a skateboard ramp as recreational equipment is consistent with the common law guideline to interpret ambiguities in land use ordinances in favor of the use of property.
I find the ordinance as written ambiguous and without the clarity that I would need to determine the legislative intent behind the distinction between swimming pool type uses and recreational equipment uses. I therefore hold that Appellant's ramp as begun may remain in its current location without regard to the setback restriction on swimming pools, tennis courts, game courts or similar uses. I make no other determinations as to whether or not any other ordinance, code, law, or rule applies or that the skateboard ramp complies with any other ordinance, code, law, or rule.
Record: The record of this decision includes the Staff Report prepared and provided to the hearing officer, which included a decision by the Zoning Administrator and the Appellant's Appeal Letter. An audio recording of the proceedings was made and is also part of the record of the decision.
Appeal: Any person adversely affected by any decision of the Appeals Hearing Officer may within thirty (30) days after written decision file a petition for review with the Utah State Third District Court in accordance with Utah Code §10.9A-801. Questions or concerns may be directed to Ray Milliner at the Salt Lake City Planning Office at 801-535-7645 or at ray.milliner@slcgov.com.
Dated this Sixth Day of March, 2013. Craig Call Hearing Officer