DECISION BY THE SALT LAKE CITY LAND USE APPEALS HEARING OFFICER PLNAPP2013-00638- Brewhaha Conditional Use Permit
Appeal of Planning Commission's denial of a Conditional Use Permit for a Tavern at 2108 East 1300 South in the Business Community Zoning District. The decision appealed involves Application Files No. PLNSUB2013-00348 submitted by Brewha 1a Bar and Grill LLC. This Appeal was filed by David Bryce Jones on behalf of the Applicant.
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, October 16, 2013. Those present and participating included Bryce Jones, Appellant and Paul Nielsen, Maryann Pickering, and Cheri Coffee, on behalf of Salt Lake City.
DISPOSITION
The Appeal is denied and the decision of the Planning Commission upheld. The factual issues are resolved in favor of the Planning Commission's decision because there was substantial evidence in the record to support that decision and there is no showing in the record of this appeal that any of its actions were illegal.
ISSUES
Were the decisions by the Planning Commission to approve the applications in this matter illegal?
Were the decisions by the Planning Commission to approve the applications in this matter supported by substantial evidence in the record?
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 am to 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, marshaling evidence that supports the decision, and responding to that evidence with rebutting evidence.
PROCEDURAL ISSUES
1. Record of the Planning Commission Decision. The record of the decisions appealed to the Appeals Hearing Officer, which were made by the Planning Commission on August 14, 2013, includes 635 pages of material duplicated for the parties prior to the review of this matter. The record also includes video tape of the August 14, 2013 meeting of the Planning Commission.
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 Appellant, the Brief filed by the City Attorney and provided by the City, the tape recording of the hearing conducted October 16, 2013, and email exchanges among the parties and the hearing officer before and after the hearing. The record also includes a document filed by two community councils and provided by the City. The record was closed and that closure noticed to the parties via email on October 25, 2013, prior to the drafting of this decision.
3. Site Visit. A site visit was not made. ISSUES OF LAW RAISED IN THIS APPEAL
4. Jurisdiction. There is no claim by any party that this Appeal was not timely filed or that the
Appeals Hearing Officer does not have jurisdiction to hear the Appeal.
5. Relevant Law. Utah Code Section 10-9a-507(2) provides:
(a) A conditional use shall be approved if reasonable conditions are proposed, or can be imposed, to mitigate the reasonably anticipated detrimental effects of the proposed use in accordance with applicable standards.
(b) If the reasonably anticipated detrimental effects of a proposed conditional use cannot be substantially mitigated by the proposal or the imposition of reasonable conditions to achieve compliance with applicable standards, the conditional use may be denied.
Similar language is found in the Salt Lake City Code at Section 21A.54.080. It appears that this case turns on several questions, in sequence:
1. What are the reasonably anticipated detrimental effects of a Tavern use?
2. Can they be "substantially mitigated" in this location, in accordance with the standards in the ordinance? In other words, what is it about this location, when compared to other areas designated as within a "Community Business" district, which do not allow for substantial mitigation, under the standards in the ordinance, of the reasonably anticipated detrimental effects of a tavern?
A decision to deny a conditional use is not to be based on whether or not that use is desirable. That decision has already been made, because if a use is not desirable in the area it is not allowed by the ordinance. By including a Tavern use in the zone, the city council has also stated that the reasonably anticipated detrimental effects of a Tavern use can likely be substantially mitigated in such a zone. It is of note that the standard is that the detrimental effects need only be substantially mitigated, not eliminated.
I find three standards which are particularly relevant to the issues involved in the Salt Lake City Ordinances:
21a-54-080 (A) (2) The use is compatible with surrounding uses.
21a-54-080 (B) (3) The use is well suited to the character of the site, and adjacent uses as shown by an analysis of the intensity, size, and scale of the use compared to existing uses in the surrounding area;
(11) The use is appropriately screened, buffered, or separated from adjoining dissimilar uses to mitigate potential use conflicts;
(13) The hours of operation and delivery of the use are compatible with surrounding uses;
The Planning Commission's denial must be sustained if there is substantial evidence in the record to support the conclusion that the reasonably anticipated detrimental effects of the proposed use cannot be substantially mitigated by imposing reasonable conditions on the use, in accordance with these applicable standards in the ordinance.
ISSUES OF FACT RAISED IN THIS APPEAL
6. According to the record, the Planning Commission had before it an extensive record including comments from many interested parties. Based on that information and the extended discussion held the night of the hearing on the matter, the Planning Commission found that the reasonably anticipated detrimental effects of a tavern use could not be substantially mitigated at the proposed location.
The Planning Commission specifically concluded that the hours of operation of a Tavern cannot be regulated by the City. We can also take note that the city council would have known that and thus would have only included a Tavern as a conditional use in the zone with the knowledge that a Tavern would be open until as late as 2 a.m. Knowing this, the council could also be presumed to have determined that the reasonably anticipated detrimental effects of a Tavern use, under circumstances typical of the Community Business District, could often, if not normally, be substantially mitigated.
The issue is, therefore, what information in the record demonstrates that this location is atypical? In this case, I have determined that there are three specific standards provided by ordinance which are at issue in the record of this appeal.
The appeal process should uphold the Planning Commission's decision if there is evidence in the record that supports the conclusion that reasonable conditions cannot be imposed (1} to make a Tavern in this location substantially "compatible" with other existing uses in the surrounding area or (2} to screen, buffer, or separate the Tavern use from adjoining uses or (3} to make a Tavern's state-enabled operating hours compatible with surrounding areas. I also should reverse the planning commission's decision if there is not substantial evidence in the record to support all three of these conclusions.
It is to be noted that "public clamor” is not substantial evidence. The record includes an abundance of public clamor. In Davis County v. Clearfield, 756 P2d 704 (UT App 1988}, the Utah Court of Appeals declared:
Its (the City Council's} decision appears to have been merely a response to public opposition. This is an insufficient basis upon which to deny a conditional use permit. A county must rely on facts, and not mere emotion or local opinion, in making such a decision. ("Denial of a conditional use must be based on something more concrete than neighborhood opposition and expressions of concern for public safety and welfare."} (Citations omitted}.
But the presence of public clamor alone does not mean that there is no substantial evidence provided. It may mean, as in this case, that a person challenging a land use decision has a lot of material to sort through to determine whether or not substantial evidence supporting the decision exists.
Under Utah Law, an appellant has a duty to marshal the evidence that supports the decision which he or she challenges. The Appellant in this case has not done this, but in our informal setting, that is not fatal to his appeal. As a hearing officer in the local appeals process, my job as I understand it is to hear the issues raised in the appeal and determine how a court would resolve the issues raised. I can assume that a court would only rule in favor of the appellant if that appellant appropriately marshaled the evidence, so I have undertaken some marshaling to arrive at a correct decision on the· appeal. Since it is my goal as a hearing officer to afford a fair appellant process to lay persons who wish to appeal, I am willing to review the record and attempt to determine whether a court would determine it sufficient to support the planning commission's decision.
It is important to know that the Planning Commission's decision is to be upheld if there is evidence in the record to support it, even if the commission does not cite that particular evidence in making its decision.
There is plenty of opinion and considerable emotion in the 635 page record, but it also includes extended discussion of the proposed tavern use on the merits. Repeatedly, those offering input cite the city ordinance and the sta.1dards there. There are quite impressive exhibits. Some of those providing opinions qualify themselves with statements of specific expertise and training which would qualify them as witnesses in a court room setting. Some of those commenting are attorneys, citing the ordinances on the merits and providing a legal review of the factors. My job is not to weigh the evidence anew and make a judgment call on what the best decision would be- it is to simply determine if there is evidence to support the decision and if that evidence is substantial.
The staff in its report concluded that the reasonably anticipated detrimental effects of a tavern use could be substantially mitigated, and recommended some conditions that would achieve that mitigation. Members of the public who responded to the conditional use application offered opinion on both sides. Much of the public comment against granting the use included factual claims that were supported by the expertise of the person making the claims or other documentation cited by the commentator. I cite specifically the comments found or beginning on pages 201, 257, 522, 531, 543, 545, and 630 of the pdf record (those page numbers being the pdf page numbers, not the staff report page numbers). I conclude that these submissions, as well as others, qualify as substantial evidence in the record supporting the denial.
This is not to say that the planning commission was obligated to deny the application. Indeed, there is substantial evidence in the record to support approval as well, most significantly in the staff report. The planning comr.1ission could have gone either way on this issue, and its decision would likely be supported by a court either way. The City Council determined by ordinance that it wanted the Planning Commission, not the staff, an appeals hearing officer, or even a district court judge, to make the call when substantial evidence exists on either side. It has done so in this case.
There is substantial evidence to support the conclusion that reasonably anticipated detrimental effects of the proposed tavern use exist in this location. Those detrimental effects include parking issues and outdoor noise both on premise and off premise. Each of these issues alone may be a factor, and each individual factor might be subject to some mitigation. But the record includes evidence supporting the Planning Commission's determination that the reasonably anticipated detrimental effects of this particular tavern use, in this particular location, would compound those factors so that the reasonably anticipated detrimental effect is not just noise, but noise associated with potentially remote off-site parking adjacent to residential uses during the wee small hours of the mor'1il g. The number of residences shown on the aerial photograph on pdf page 545 is illustrative of the evidence in the record supporting the decision.
There is substantial evidence in the record to support the conclusion by the planning commission that those compounded reasonably anticipated detrimental effects could not be substantially mitigated by the imposition of conditions consistent with the standards in the ordinance.
CONCLUSION
The decision by the Planning Commission to deny the conditional use permit for a tavern is upheld. The Appeal of this matter is denied.
Craig Call Hearing Officer