Craig Call Appeals Hearing Officer
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AMENDED DECISION BY THE LAND USE APPEALS HEARING OFFICER Petition No. PLNBOA2012-00508
Approx. 709-853 West Everett Avenue
Hearing Date: November 7, 2012
Re: Appeal by Dale Gardiner, on behalf of Utah Metal Works, appealing an administrative decision by Salt Lake City. This appeal seeks a determination by the Hearing Officer as to whether the use of the subject property is in violation of Section 21A.28.0JO(B)(3)(b) of the Salt Lake City Land Use Ordinance regarding screening and stacking requirements for outdoor storage, and whether or not the application of the ordinance in this instance violates substantive due process. The property is in the Heavy Manufacturing (M-2) zoning district.
This is an Amended Decision, which replaces my Decision entered November 9, 2012. The Decision dated November 9, 2012 in this matter is hereby vacated and replaced by this Amended Decision.
This matter was heard by the Salt Lake City Appeals Hearing Office, Craig Call, on November 7, 2012. After reviewing the evidence and testimony presented, I hereby find that the use of the property by Utah Metal Works (UMW) on the portions of the property where its recycling activity has expanded since 1964 violates Section 21A.28.010(B)(3)(b) of the Salt Lake City Land Use Ordinances. I do not enter a decision on the substantive due process issue. This decision is based on the following findings:
1. In the appeal, appellant raised several issues involving screening and the form of the notices served on the property owner in this matter. These issues have been resolved without the assistance of the hearing officer.
2. While there was extended discussion in the hearing about related items, I find that the sole issues to be resolved by the hearing officer in this matter are: 1) Do UMW's activities include "outdoor storage" as defined in the ordinances? 2) If so, is UMW's Outdoor Storage activity in violation of the cited section of the ordinance? 3) If so, is there a rational basis for the application of the ordinance in this instance, as required by substantive due process?
3. The relevant section of the ordinance, 21A.28.010 (B) (3) (b) provides: "Outdoor storage of auto bodies, or other metal, glass bottles, rags, rubber, paper or other articles commonly known as junk, in the M-1 and M-2 districts shall be screened by a solid wall or fence (including solid entrance and exit gates) not less than seven feet (7') nor more than ten feet (10') in height. The outdoor storage shall not be stacked higher than the enclosing wall or fence. Fencing location shall not encroach on any sight distance triangle."
4. The Salt Lake City Land Use Ordinances also include definitions for words used generally in the ordinance. The term "Outdoor Storage" is defined in the ordinance at Section 21.62 as: "Outdoor Storage: The use of open areas of the lot for the storage of items used for nonretail or industrial trade, the storage of merchandise inventory, and the storage of bulk materials such as sand, gravel, and other building materials. Outdoor storage shall also include contractors’ yards and salvage or recycling areas."
5. Based on the testimony of Mark Lewon, an officer of UMW, and the photos and documents in the record, the activities of UMW on the property include the keeping of recycled materials in piles and bales on the lot, and not within a building or structure.
6. The record establishes that the stacks involve "items used for nonretail or industrial trade" or "merchandise inventory" or "bulk materials".
7. The keeping of such items on the lot, not within a building or structure, therefore constitutes "Outdoor Storage".
8. UMW's business involves "recycling". The definition of Outdoor Storage refers to recycling businesses and thus clearly is intended to include materials stored outdoors by an entity involved in UMW's business.
9.The testimony, photographs and documents in the record show that stacks of materials exist on the open areas of the UMW property, and that those stacks are higher than the fence surrounding the property and higher than ten feet.
10. The ordinance applied in this matter was enacted subsequent to the commencement of the UMW activities on the property, and thus is not applicable to the activities which were conducted in 1964 and at earlier times.
11. In the attached Exhibit, representatives of UMW provided a graphic representation of the area of the UMW property which was utilized for recycling activity prior to the enactment of the current ordinance. That area is shown on the Exhibit as outlined in green and identified with the year "1964" which is written on the area and circled.
12. The UMW activities discussed here do not violate the cited section if carried out in the "1964" area shown on the Exhibit.
13. The UMW activities discussed here do violate the cited section of the ordinance if conducted outside the "1964" area because they include Outdoor Storage which is taller than a 10 foot fence, the maximum height allowed by the cited section of the ordinance, and were commenced after the effective date of the cited section of the ordinance.
14. The issue of whether or not the imposition of the ordinance in this particular instance violates the substantive due process requirements of the U.S. and Utah Constitutions was briefly discussed, but the hearing was ended before any decision was made as to that issue. The due process issue has therefore not been fully addressed or resolved.
15. This decision is based on the entire record of this matter, and not only upon those portions of the record specifically cited here.
16. This decision is effective as of November 19, 2012.
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.
If you have any questions or concerns, please contact the Salt Lake City Planning Office.
'Craig Call Appeals Hearing Officer