DECISION BY THE SALT LAKE CITY LAND USE APPEALS HEARING OFFICER PLNAPP2013-00537 Fence at 1248 W Talisman Drive
Appeal of Planning Commission's approval of an over height fence. The decisions appealed involves Application File No. PLNPCM2013-00388 submitted by Teag Bayly. Appeal filed by Judy Thomas.
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, September 4, 2013. Those present and participating included July Thomas, Appellant; Teag Bayly, the Applicant and Property Owner; and Paul Nielsen, Nick Norris, and Daniel Echeverria, on behalf of Salt Lake City.
DISPOSITION
The appeal is denied with regard to the issue that the approval of the fence was illegal.
ISSUE
Did the approval of the Over height Fence violate a provision of the ordinance that fences should not be allowed which create a "walled-in effect". SLC Code 21A.52.030A.3 (g).
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
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 July 10, 2013, includes 76 pages of material duplicated for the parties prior to the review of this matter. The record also includes video tape of the July 10 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 a memo from Daniel Echeverria of the City Staff dated August 28, 2013, and the tape recording of the hearing conducted September 4, 2013.
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.
ISSUES OF FACT RAISED IN THIS APPEAL
5. Creation of a "Walled-In Effect''. The City's land use ordinances provide that decisions related to Special Exceptions are to be made in conformity with the ordinance and its standards. The only issue raised in this appeal is whether or not the Planning Commission could grant this Special Exception, which, according to the Appellant, creates a "walled in effect" in a manner which is contrary to the evidence in the record. There is indeed substantial evidence in the extensive record of this matter to support the Planning Commission's decision. Of particular note is the finding found on page 8 of the staff report related to this matter which raises the issue of "walling in" a lot. This finding and analysis are part of the record and, as the opinion of a person with particular expertise in these matters, constitutes substantial evidence. It is the Planning Commission, and not the Hearing Officer, which is to weigh the evidence and apply the facts and law. So long as there is substantial evidence on to support its decision, I have no power to overturn it. I find that there is substantial evidence in the record to support the findings by the Planning Commission, and thus I sustain its actions with regard to this issue.
CONCLUSION
The decision by the Planning Commission to approve the Special Exception is upheld. The appeal of this matter is denied with respect to the sole issue raised by the Appellant came before the Appeals Hearing Officer in a hearing held on Wednesday, September 4, 2013. Those present and participating included Soren Simonsen, Appellant; Brad Gygi, Loyal Hulme, and Robert Hyde, on behalf of the Applicant and Property Owner; and Paul Nielsen, Nick Norris, and Lex Traughber, on behalf of Salt Lake City.
DISPOSITION
The Appeal is denied with regard to all issues raised. The legal issue of standing are resolved in favor of the Appellant, and the claim by the property owner that Appellant does not have standing to bring the Appeal is denied. The claim that the decision of the Planning Commission should be set aside because of conflicts of interest is denied. 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
Should the Appeal be denied because the Appellant lacks standing to bring the Appeal?
Should Planning Commission member Lisa Adams have recused herself because of conflicts of interest and not participated in reviewing and approving the applications in this matter?
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 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
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 June 26. 2013, includes 240 pages of material duplicated for the parties prior to the review of this matter. This material was posted on the internet by the City. An email message by Lex Traughber of the City Planning Staff on August 30 advised all parties of the availability of the materials constituting the record. The record also includes video tapes of the March 27 and June 26 meetings 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, a response filed by Kirton McConkie on behalf of the Property Owner, the tape recording of the hearing conducted September 4,
2013, and email exchanges among the parties and the hearing officer before the hearing.
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. Standing. In its response to the Appeal, the Property Owner raises the issue of standing, claiming that the Appellant is not adversely affected by the decision of the Planning Commission and the Appeal should therefore be denied. This was not discussed at the hearing, since it was not raised there by a party to the Appeal at the hearing, but was adequately raised in the written record. The claim is denied, as the Appellant has provided evidence in the record that he resides in the area where the proposed meeting house will be erected and attends religious services in the existing building. I find that the intent of the ordinances regarding appeals of Planning Commission decisions would allow an appeal by a resident of a neighborhood as in the present matter before me, where the decisions clearly involve weighing the applications for their impact on the community and neighborhood.
6. Conflicts of Interest. Appellant claims that one member of the Planning Commission, Lisa Adams, may have received ex parte communications about the applications and should not have participated in a decision with regard to the applications. Appellant also claims that Ms. Adams, who is running for the City Council, may have been unduly influenced by comments made by a person at a hearing on the applications because that person is very active in supporting Ms. Adams' campaign. The City ordinance provides at 2.44.040 (A) that a public servant shall not further substantially his or her financial or professional interest or the financial or professional interests of others or secure special privileges for himself or herself or others. I find insufficient evidence to support a decision that Ms. Adams' vote to approve the applications advanced her financial or professional interests in an inappropriate manner and therefore deny this claim. In Dairy Product Services, Inc., v. City of Wellsville, (2000 UT 81; 13 P.3d 581}, the Utah Supreme Court explains at 1111 52-55 that bias by a decision-maker can certainly be an element of protected due process rights, but more substantial proof must be provided than that offered in that case, or was submitted to me by Appellant, of actual and impermissible bias.
7. Illegality of Special Exceptions. Appellant claims that the decisions by the Planning Commission related to the placement of mechanical equipment and the configuration of parking were illegal, and there was extended discussion of this issue at the hearing. The City offered that the relevant law changed between the time that the applications were submitted and the decision to approve the applications was made. This issue was first raised at the hearing, and is not resolved here. If the relevant law had been changed in the manner described by the City Attorney, then the illegality of approving these two aspects of the applications is resolved in favor of the Planning Commission. If it is not the case, I nevertheless find that the Special Exception process is specifically designed to deal with such issues and allow for exceptions to the Ordinances as written. As a matter of law, the Planning Commission's action, if supported by substantial evidence in the record, would resolve this legal issue.
ISSUES OF FACT RAISED IN THIS APPEAL
8. Community Character. The City's land use ordinances provide that decisions related to conditional uses and project approvals are to follow the guidelines of the zoning district in which the project is located. Among the statements related to the R1/7000 zone is the statement that "Uses are intended to be compatible with the existing scale and intensity of the neighborhood. The standards for the district are intended to provide for safe and comfortable places to live and play, promote sustainable and compatible development patterns and to preserve the existing character of the neighborhood." SLC Code 21A.24.060-A. The duty of the Planning Commission in this instance is to review evidence provided to it and determine if all of these standards and other requirements of the ordinances are met, and to base that decision only on substantial evidence. The Appellant here has eloquently articulated this standard, and if the Planning Commission had decided to deny the application as inconsistent with the neighborhood, I would be held to the same standard and must find sufficient evidence in the record to support such a denial. I would also be required to support a decision by the Planning Commission, based on the substantial evidence standard alone, if that decision had been to impose additional conditions related to landscaping and site design. There is indeed substantial evidence in the extensive record of this matter to support both the Appellant's position and the Property Owner's. That being the case, it is the Planning Commission's prerogative, and not a Hearing Officer’s, to make the judgment call. It is the Planning Commission, and not the Hearing Officer, which is to weigh the evidence and apply the facts and law. So long as there is substantial evidence on to support its decision, I have no power to overturn it. I find that there is substantial evidence in the record to support the findings by the Planning Commission, and thus I sustain its actions with regard to this issue. I specifically cite the Appendices to the Kirton McConkie response which is part of the record as a narrative of some of the evidence in the record which supports the decisions made.
9. Special Exception. I also find that there is sufficient evidence in the record to support the decision by the Planning Commission to grant the Special Exceptions related to parking and mechanical equipment. I also cite the Kirton McConkie appendices as specific examples of evidence in the record supporting the Planning Commission's decisions.
CONCLUSION
Appellant is qualified to bring this Appeal and has standing to do so. The decision by the Planning Commission to approve the applications is upheld. The Appeal of this matter is denied with respect to all issues raised by the Appellant.
Craig Call Hearing Officer