Meeting Called to Order – Chair Laura Justice

Motion on Minutes: Motion to accept minutes of the January 13, 2009 regular meeting and the May 12, 2009 training meeting.

Variance: Brent F. Peterson is requesting a variance to Title 10-7-11(2) regarding street width on 480 S. State fronting property addressed 475 S. State.

Adjourn

In compliance with the American with Disabilities Act, individuals needing special accommodations
(Including auxiliary communicative aids and services) during this meeting should notify June Jeffery
(435) 635-2581 ex. 109.

Certificate of Posting
The undersigned City Recorder does hereby certify that the above notice was posted on the LaVerkin City website www.laverkin.org, the Utah Public Meeting Notice website http://pmn.utah.gov and
the city office buildings at 435 N. Main and 111 S. Main on October 2, 2009  
June Jeffery, CMC
City Recorder

LAVERKIN CITY BOARD OF ADJUSTMENT MINUTES

Regular Meeting

Tuesday, October 13, 2009 6:00 P.M.

City Council Chambers

111 S. Main

LaVerkin, Utah

Present: Chair Laura Justice and Boardmembers - Pat Andregg, Bryan Bracken; Staff: Troylinn Benson, June Jeffery, Kevin Bennett, Derek Imlay; Public: Ray Justice, Anna Andregg, Karl Wilson, Russell Bezette

Meeting Called to Order: Chair Laura Justice at 6:00 p.m. Opening Prayer and Pledge - Bryan Bracken

Motion on Minutes: Motion by Andregg to accept minutes of the January 13, 2009 regular meeting and the May 12, 2009 training meeting, second by Bracken. Motion carried 3-0.

Variance: Brent F. Peterson is requesting a variance to Title 10-7-11(2) regarding street width on 480 S. fronting property addressed 475 S. State.

Peterson introduced himself and stated that he would like to allow others to speak, including Russell Bezette who owns neighboring property. Peterson's wife, Loretta began to review the application. She stated that they were requesting the width of the street remain as it is currently - at 33'. If the street is widened, it will reduce the north side of street parking. She stated that the rest of the neighbors do not want the street widened. She referred to a petition that had been circulated to the neighbors by Bezette.

Clarification was made that the street in question is 480 South - the street south of the building to be discussed. Mr. Peterson informed that when the State installed the apron on that road (entrance), it was installed at 32'9". It is a very narrow approach. He described how entering from State Street is very tight, especially to turn into the mayor's property on the south side of the road.

He showed a LaVerkin map and said that the "General Plan - resurvey" shows the street platted at 32.96'. Peterson stated that it would be a hazard if it were to be other than that. If coming from a narrow approach, the road widened and there were cars parked on the street, the "approaching" cars would have to swerve to miss those parked cars. He also stated that it would look ridiculous - being narrow, then wide.

An aerial view map was hung so that Board members could see it.

Mrs. Peterson requested that if sidewalk needed to be installed, it should be required only on the south side, not on the north side, because the building would need the parking area.

The road going straight is an important point to Mr. Peterson. He pointed out the layout of the road from the State Street apron to 100 West being a straight shot through. By widening the street, there would be parking in front of all the homes. With the narrow approach and uneven width, there would be problems with parked cars - and would be a traffic hazard. The area would look like a "hodge-podge" to visitors. It would affect the flow of traffic. All of the other property owners would like to keep the road narrow, including Mr. Anderson and Mr. Bezette. Peterson stated that the road was originally slated to be 33' in 1979. Peterson believes that the mayor is against the move.

Russell Bezette stated that he uses this turn from State Street to get to his property. When there is a vehicle in the road, the turning car has to move way out to make the turn. Luckily there are not many cars right now, but it is a very dangerous place. If it is opened up - his property has a lot of infrastructure that would be affected by a wider road. He has two agricultural irrigation systems, and 300 trees bearing fruit that would be moved if the road is widened. The neighbors have worked to add on, not sell property/cut it up. They want to keep the area peaceful and don't want to move their infrastructure. He has talked to all the neighbors but the mayor, whom he assumed to have a conflict of interest. They all signed a petition to keep the 32' easement as it has been for decades.

Bezette made reference to Ben Grover, a former city councilmember. Grover was frustrated over this road and has since passed away. Bezette now understands the frustration. He would like to know where his frontage line is because he can't do anything in his front yard. He doesn't see any positive reason to make the road different from what it currently is.

He indicated that in the past a youth set several fires in the gulley at the end of the road. The fire department was able to access the area without any problems.

Bezette gave the petition to Chair Justice. (See Exhibit A)

There was discussion about ownership of the street and that the adjacent trailer park (Shady Acres) is not part of the Bezette property.

Mr. Peterson stated that the city had rezoned his property to Tourist Commercial a couple of years ago. The intent of the city was to develop this into a commercial area. Commercial codes require rigorous parking. If an ill-designed, awkward street was put in, it not only looks bad without additional parking it can't be used as intended in the commercial zone. (Peterson said they bought the property behind this building for additional parking.) This creates a hardship on developing the property in the future.

Mrs. Peterson stated that east of Mr. Bezette's property, the road becomes a dirt road with utility poles and leads into a mountainside. There are natural and man-made obstructions to widening the road. The only place that could be widened is where it would kill the Peterson property.

Chair Justice questioned if the city had intentions of widening the whole street. There was discussion that the city doesn't own the street area. She wondered why the property owners worried about the city widening a street that they don't own. Bezette reported that there were stakes put on his property that said "proposed 50'easement". Stakes were placed on Peterson's property as well. Derek Imlay clarified that, unless Mr. Peterson has someone coming to use this building, the city has no plan to widen the road at this point. Imlay tried to clarify why stakes were placed, but was cut off.

Peterson continued that the people don't want it. He proposed a road from a location to the north and connecting to a possible cul-de-sac at the back of this property. He restated that 480 S. is not a good location for a wider street.

Justice questioned Imlay about the requirement to widen the road. Derek stated that because Peterson wants to use the building, the street needs to be improved, just like any other property. The city owns the south 25' width from the State Street entrance to the Pete Luchka property. Justice understands that it is possible for old surveys to disagree and that could add to the property line confusion. The city will not force private land owners to deed property for street improvement. That would be done by the private land owners or during development. Someday the city may want to have a nice street there. The issue right now is regarding this property. The variance only affects Peterson's section of the road. Only the access to his business, as he wants to develop it, is the concern of this meeting.

Discussion that pavement required for 50' streets is 33'. The current 480 S. entrance is about 33'. Curb and gutter is currently installed at the approach on both sides. There is sidewalk on the south side, but on the north side there is no defined sidewalk.

Peterson stated that he and his son own the house to the east of the property where the commercial building is located. Mrs. Peterson said that their son owns the home, and the Petersons purchased the property in front of the home for parking. There was discussion that the property was to be used for parking and that there are other structures on the lots. Other structures include a 4,000 ft. out-building and the house.

Peterson wants to put in angled/slot parking in front of both properties. He wants to get in and out on the same street. UDOT will not allow access on State Street or a circular drive. Both the property where the building is located and the property where the home is located are zoned Tourist Commercial. The Bezette property and the other properties to the west and south are zoned R-1-14.

Discussion that parking is required for commercially zoned properties. Many of the uses in Tourist Commercial require 1 space for every 200' of building area. The exact parking requirement would be a business license issue.

Kevin Bennett stated that he likes the looks of the building and hoped that there could be a way to make good use of it. He acts as legal council to the Board of Adjustment in this meeting. He would like to pose a couple of items for the board to possibly use in handling the request.

Justice stated that, as the Board of Adjustment, they are responsible for land use appeals. She wondered if streets fall into that category. Usually the Board deals with property that is out-of-compliance for some reason.

Bennett supported that appeals are connected to the property itself, and not adjoining property. Laws are passed and obeyed. Sometimes the laws are broad and create impact for those on the fringes. The board may act on applications where those laws could possibly harm them. The board will look at this application to see if it is one of those where a variance should apply. This is not a "board of favors". The body has no ability to rewrite laws or policy. Limits on the Board's authority are established by state law. The question is the width of road, not the use of the property. There may even be a question as to whether Mr. Peterson had the ability to develop under the old laws. Over a year ago, the city adopted only a 50' and 60' road. That ordinance amendment went through the proper process for change and would be the proper body to determine if quaint roads are to be a part of LaVerkin. The concern here is if the property is being damaged by a land use rule. A variance is to be the tool of last resort. There are specific findings that have to be shown before the variance can be granted. What other people down the road think is immaterial. Variance is specific to the property. Does the use require removal of the building where it encroaches into the 50' right-of-way? There have been comments reflecting that the mayor may have a conflict of interest. He has the right to talk as a citizen and property owner.

Bennett continued that any person or entity desiring a waiver or modification of the requirements of a land use ordinance as applied to a parcel of property that he owns, leases, or in which he holds some other beneficial interest may apply to the applicable appeal authority for a variance from the terms of the ordinance. Before a variance can be granted it has to satisfy five criteria.

1.            Literal enforcement of the zoning ordinance would cause an unreasonable hardship for the application that is not necessary to carry out the general purpose of the zoning ordinance.

2.            There are special circumstances attached to the property that do not generally apply to other properties in the same district.

3.            Granting the variance is essential to the enjoyment of a substantial property right possessed by other property in the same district.

4.            The variance will not substantially affect the general plan and will not be contrary to the public interest.

5.            The spirit of the land use ordinance is observed and substantial justice done.

Bennett stated further the building is nonconforming or non-complying, but grandfathering only applies when the use was a permitted use and continuous functioning, or has not ceased functioning for a year. Otherwise, new rules apply. Commercial property does have the right to be developed commercially, but it has to meet applicable current requirements and laws.

The real issue to Bennett is not the road, but the road is the way around it. The real issue is parking. The city will not put a road through the middle of that building. There is a question about this building ever obtaining a building permit. Assuming that all was in compliance, the real issue is the rest of the property. There are actually three buildings. Has the property been properly divided? Do each of the buildings have proper parking for their intended use? There is no pending application for the rest of the property, and parking depends on the intensity of the proposed use. It appears that there is an issue all the way down the road. The fact is, it is a public policy issue for what the road width will be. Perhaps the city would like to reinstate narrow roads or private roads for similar concerns. The "appeal" is a "last ditch" effort. There has been no attempt to reach the legislative body on this issue.

Bennett continued that the Board may, and probably should, impose further conditions to mitigate the problem circumstances - possibly by restricting the number/type of allowable uses to the number of parking spaces available. Bennett suggested that the board may want to readdress or continue the application to another meeting. Questions that he believes should be answered are:

Bennett informed that this Board is quasi-judicial. What jurisdiction does the board have over the roadway? This road - some of it - the city owns, some of it is subject to a prescriptive easement. If the roadway is currently unsafe, why add new businesses to it? Why is it zoned commercial at all? What constraints may be put in place so as not to burden those properties surrounding that are not in the commercial zone - like those that sit across the street from this building in a residential zone?

Bennett continued that the only reason this issue is here tonight is because the roadway issue is in Title 10 of the LaVerkin City Code. The City Code says that this Board has the ability to hear a variance on any regulation in this Title. Roads are included in this Title. State law doesn't address this, but the City Code does.

Bennett stated further that the Planning Commission and the City Council have the ability to review and determine whether there ought to be alternatives such as private roads so long as health and safety requirements are satisfied. The City Code doesn't restrict the Board's authority to land use, but includes any regulation in Title 10. That Title says that, as part of the access plans, there will be 50' or 60' streets. Bennett stated that he could make some possible recommendations later if requested by the chair.

Justice stated that she was not sure that this Board was the proper authority to address to change the width of the street. The Board can grant a variance on his land if it meets legal requirements.

Peterson stated that, in his conversation for direction with June Jeffery at the city office, he said he asked a pointed question whether this Board had the authority to grant this. She had said that yes they did and they are the final say. She had also told him that the 52' road had been in place "forever". Tonight it has been said that the ordinance is 1 ½ years - not forever. There were several comments from those in attendance that the statement concerning the time the ordinance had been in place was not correct. Peterson continued that 18 months was not forever. He also stated that he didn't create the Tourist Commercial zone, it is the city's plan. As far as dates are concerned, the plat he held, which surveyors have been using, showed that the roadway was intended to be 33' not 52'. He stated that 52', which came into existence "forever ago" was only 18 months. He held that he was told in "no uncertain terms" that this was the Board that could make a decision on this.

Derek Imlay inserted that it didn't matter what the zoning was, it is commercial use and parking is required, no matter what the use. John Postert, Derek Imlay, and June Jeffery had met with Mr. and Mrs. Peterson. During that meeting, Imlay was firm that Planning Commission and City Council were more appropriate boards to go to. June may have talked to him up front, but the decision was made in that meeting. Staff was against coming to this Board. Peterson made the choice to come to this Board because it would be faster than going to Commission and Council. The minutes of that meeting, which were in the packet, point that out.

Peterson said that he did have the meeting, but if he had Derek's job and June, his mouthpiece, said that this Board had final authority, and he saw a piece of paper come across his desk that was inappropriate, he wouldn't wait until the night of the hearing. He would have June call them back immediately. "June he didn't listen to me." Peterson said that they talked about these things but June said the Board had the authority and the final say.

Justice reassured Peterson that this Board did have authority to act on the item. Probably a more useful route would be to go to the Planning Commission and request that the street width be changed. This Board can vote on a variance. If denied and appealed, it would go to court. It is not the only option for correction. Peterson stated that he had talked to counsel. Justice restated there is always the ability to rewrite the ordinance through the Planning Commission and City Council, but not appeal the decision of the variance, except to the courts.

The Petersons expressed their understanding that, if they approached Planning Commission and City Council, they would be seeking to change the rules for the whole city. They came here because they only wanted to address their issue.

Mr. Peterson further stated that he went through a major remodel of the building and challenged the statement that it was done without a building permit.

Imlay defined that, from day one when Mr. Peterson was caught demolishing the original building without approval, the city attempted to put a stop to it until Peterson came to tell the city what he was doing. The city has yet to have a straight answer as to what he will do in the building. Peterson has given several suggestions - pizza, carpet sales etc. The permit was pulled for demolition and to add the supports in the basement - with Pratt Engineering.  As far as electrical, plumbing, structural, HVAC there are no plans. Imlay asked how plans could be submitted when you don't know what you're putting in. The other point that was never said is that the 43' road would never apply to the whole city.

Justice referred to letters in the packet dated in 2004. The City wanted to see plans then. All i's not dotted, t's not crossed. Peterson went to Board of Adjustment at that time for set-backs that were put out-of-compliance by the UDOT. Now he wants to use the building in the commercial zone. She re-expressed the possibility to go back to Planning Commission and City Council to change the zoning ordinance.

Mr. Peterson refuted Imlay's statements of demolition and building without permits.

Mrs. Peterson asked that if the city doesn't own the land how does that affect the right to require parking. Justice explained that the city can't improve the street - that has to come from the property owners The city owns 25' of width on the south side of 480 South to Pete Luchka's home.

Mr. Peterson again referred to Imlay's statement of not presenting plumbing, electric, HVAC - because he doesn't know type of tenant he will have. He can't have tenant until there is adequate parking. He wants to get more parking. If he has 13-14 more spaces, there are more options for use in the Tourist Commercial building. He stated that it was unfair to require those items, and inappropriate to use that against an applicant.

Justice stated that if Peterson would like to continue with the variance, the Board would discuss it. She explained that an appeal would go to the courts, or he could go through the Planning Commission and City Council to address changing the ordinance.

Peterson stated that they have met with legal counsel, and they were told by the city that they had taken the proper steps. If misled or misguided it should be on the city representatives. Peterson would like to go forward with this variance and hope it is in their favor.

Justice explained that if the appeal goes to the court, it is the Board of Adjustment that would be taken to court and grounds for the appeal would be for legal process, not previous misunderstandings.

Peterson pressed to have June state that she told him that this Board had the right to approve this street. He continued to press that June nod in agreement with his statements.

Jeffery stated that the staff meeting was held as stated, that the proper procedure was discussed to go to Planning Commission and City Council. Peterson had asked her how much time that would take. She replied that it would go with an ordinance to Planning Commission, it would then go to the City Council - that the ordinance would have to be written. He asked how long that would take. She replied that it could be 2 or 3 months depending on the ordinance. He then asked about a variance with the Board of Adjustment. She said that could be another option, but if the variance was not approved, his only option to fight that variance would be in the courts. He asked how quick that would be. She gave him the date for this meeting. He said that was what he wanted because it was faster. The application for Board of Adjustment was put together. Jeffery also had discussed with Peterson that an ordinance, once it is in place, does apply to other areas that have those requirements in the city, just like the 50' road ordinance applies to all areas with the same concerns. She told him that if there was a reason that a variance could apply, this was the body that determined that. Planning Commission and City Council determine what the ordinance would be. This Board was the only body that could apply a variance if it fit the required criteria. She stated that she never told Peterson that this was the only place. She told him that an ordinance applied to the city, a variance is particular to the property in question. The only recourse on a variance is the court. There was nothing else about going back to Planning Commission and City Council. Mr. Peterson confirmed that Jeffery's statement was the way that it "came down". Mrs. Peterson said that Jeffery had been very helpful.

Pat Andregg wondered if there was an option to recommend that Petersons go back to Commission and Council. Justice stated that the Board would vote on the variance. Bennett stated that the Board could recommend anything they wanted, but direction is to grant, deny or grant with modifications.

Bennett wondered that applicants would consider other options. If Peterson received an order tonight it would already be determined. He could still go to Planning Commission and City Council now. Bennett stated that if the board denied tonight, there would be 30 days to appeal. The city would also have 30 days to appeal. If Peterson had been in contact with counsel, they should have discussed this process - to know what the options really are. Once the variance was made, the process would be in the 30-day hoops. Peterson could put a hold on this process and go back to Planning Commission and City Council to request a change to the ordinance and let them hear it. If that was not satisfactory, he could always come back to this process. No matter what was said or not said, the process would begin.

Laura inserted that this variance would not affect the parking. It would still need to meet the off-street parking requirements. Peterson stated that the reason they were at the meeting, is that if the street isn't widened there would be about 15 more parking spaces that would be off-street. If the street is widened there will be no footage for off-street parking. There would also be a horrible hour-glass design. The property is injured because of no parking in the Tourist Commercial zone. The uses of the zone require parking. When they bought the property 10 years ago, the city plan, (which he discussed earlier) called for a 33' street. For 8½ years that was okay. Peterson wondered why the city would want to cripple any business and why not provide for them to succeed.

Pat Andregg asked to clarify how the variance would affect the parking. Justice stated that with the development of the property, Peterson is required to put in the 50' street. With the width, he will lose 13-14 spaces on the south of his property. Mrs. Peterson inserted that is about half of what is needed. If widened, there would be 19 spaces. If the applicants can use that extra width for parking, there would be about 33 spaces.

There was discussion about the size of the building. The numbers were not certain but approximately 7,000. It is expected that for 5,000 sq. ft. there would be a need for 25 spaces for most use types in the zone. With the variance, slot parking next to the street would be available and could make the current 19 spaces to 33.

Justice asked how receiving the variance would affect selling for a business use where more parking would be required. Peterson said that the business would need to develop a plan and take it to the city to see if it would work. If it didn't work they would have to find another use.

There was a question whether or not the whole building would be able to be used. Mrs. Peterson stated that even just using the main level without the variance, there wasn't enough parking available. There are very few options without this parking. They paid $100,000 to get additional parking nine years ago. Mr. Peterson said that it was a blow to have State Street widen into their property and it ran head-on to the purpose of commercial property.

Imlay discussed figures for parking and the area. 5000 sq. ft. would need 25 spaces. If the whole building was occupied, there would need to be 35 parking spaces. There may be 32 total spots with the variance. That number doesn't allow any use of the back building, nor the use of the house, which is on a separate parcel of property. The house property is also zoned Tourist Commercial. Parking there would be considered off-site parking because there are two parcels. Mr. Peterson stated they would be joined into one parcel.

Bennett responded to some of the issues. The street width ordinance that was changed last year only eliminated the 43' wide allowance. The 50' road had been around since at least 1999. All those changes went through the public process. All the buildings on the property are part of the required parking issue. Peterson will need more parking as he uses more square footage in the buildings. It would be possible to scrap buildings for parking, but he will need to provide parking for the uses.

Justice reinforced that with the road ordinance change in 2008, only removed the 43' road allowance and kept the 50' and 60' width. Imlay stated that the 43' width portion was only in place for 1 ½ -2 years. Justice stated that if the Board granted the variance, they were to grant the least possible.

Bennett stated that the applicant bears the burden of proof, not the city. The real issue is State law vs. local. Street width is actually on the agenda. Parking is not on the agenda but is the real issue, and is still okay.

Bennett discussed the following recommendations:

Street Width:

Recognize: 1) The Board doesn't have the power to legislate size of roadways in the city. 2) The power of Board of Adjustment to order any roadway for public property outside the applicant property for parking is questionable. 3) There is no need to adjust the roadway at the corner of the building that sticks out in the public right of way. 4) The building is constructed on the footprint of the old feed store that once existed there, even though it is too close to the 480 S. roadway. Recognize: that non-conforming, non-complying/grandfathered use is dubious because of its period of vacancy and a question as to whether the building maintains any of its grandfathered status. Recommend: Either 1) do not grant road width or 2) limit any variance on the road width to the portion of 480 South that abuts or is encroached by the corner of the building.

Off Street Parking:

Recognize: This is really an off-street parking issue, the aesthetic and commercial and possibly historical value of the buildings, and that there has been a business on this site before. Recommendation: Have the city count the number of on-street parking stalls that may be lawfully located along 480 S. as though they are off-street parking spaces. Order that the building and the property is otherwise in compliance with city code. The applicant may be permitted to utilize the property in a manner consistent with the rules, regulations, and restrictions of the Tourist Commercial zone but limited as to the type of use by the number of parking stalls that can be provided by the applicant. Recommend: That the city post the south side of the street as residential parking only. The remainder of the street is not an issue. The other owners of the street may want to discuss what to do in the future. Narrow where the building sits, then widen beyond the place where the building juts into the street to its required width. Allow any parking along that street as off-street parking.

Justice clarified that the old zoning ordinance for the street at 43' didn't allow for on-street parking.

Peterson referred to the beautiful building and wanting to work with parking issues, there is so much being done to take that parking away. He realized that there are laws. He referred to it being legal to kill Mormons in Missouri until just a few years ago. Why take away rights with an ordinance that is a disservice to the aesthetics of the area and doesn't serve a safety issue. He referred to the impossible turn into the Karl Wilson property from State Street. Peterson hoped to find logical, common sense of width on LaVerkin plat of 33'. He referred to other cities that handle 10,000+ cars and keep the quaintness. Black top makes hot in sun. There is a need to plant trees and beautify the city.

More discussion about the on-street parking counting for off-street requirement.

Russell Bezette wondered if the city doesn't own the street why would they extend it. Justice stated that the only reason this is an issue, is because Petersons have a desire to use/develop the property in question. Bezette believed the city should take no steps to widen with the ambiguity down the rest of the street. Justice agreed and again suggested that those involved should approach the Planning Commission and request changes to the street width so the city could take steps to change. Bezette followed up that there are serious conflicts on this street and that it was intended to be narrow. The area is very sensitive and different from the rest of the community. Justice again stated that this Board only has the ability to look at the issue before it.

Mrs. Peterson wondered about the ownership of the road in question and wondered about the city paying for the property that becomes city road. She was answered that it is owned by the Petersons. As development/commercial use goes in, it has to provide for the access to the building. Eminent domain could be used if the city were pursuing the development, but this is applicant-driven, so the city is not under the same requirement to buy the property.

Justice stated that the 43' width street allowance was taken out of the ordinance because all developing areas of the city had the ability to meet the 50' requirement. Peterson pushed that the 33' pavement for that street was accepted in 1979. Justice responded that at that time there was a feed store in place, and at that time there was little traffic. UDOT put in the narrow approach from State Street because of the existing buildings.

Mrs. Peterson held that if 480 South is narrow, then wide, then narrow - widening would kill the ability to use the building. Mr. Peterson created a scenario for the City Council to hold back the business and making the road uneven and force "the Petersons" to "fight in this arid land"

Mrs. Peterson stated it was worse in the bad economy. They have had two buyers turn them down. Once they saw the stakes in the ground, they pulled out of the sale because there would be no parking. One even had a check to Peterson. It would have brought a lot of high class to the city.

Bryan Bracken wanted to review the recommendation from the attorney. Justice restated that the attorney suggested that the applicant do something different, but the applicant wanted to proceed with the variance. Only the Board of Adjustment can make this decision. Any appeal of this variance is for the legal procedure on the variance tonight, not any earlier concerns. The request for the variance could not be economic. Peterson stated that as the legal process went forward he felt that he should be able to bring anyone out, including June or Derek. Justice countered with a reference to "whomever you want to subpoena or have as witness", but the appeal would be for the legal process at hand.

Mrs. Peterson asked for further clarification about going back to the Planning Commission and City Council. Justice supported that they would still be able to do that. The only reason this would go to the court would be to appeal the Board of Adjustment decision. Mrs. Peterson wondered about other options. She stated that they are at the Board of Adjustment for a decision because they are under financial stress to get the building sold. Mr. Peterson injected that (another six months), is another $20,000 to the Petersons. Justice stated that legally the Board cannot take into consideration the financial hardship. Mrs. Peterson restated that was the reason they were at the meeting. Mr. Peterson stated that they should be able to rely upon the city officials and that is why they were at the meeting. Mrs. Peterson stated that she believed the city didn't lie or willingly misrepresent the issue to them, they were there to help - they (staff) represented the way it was and the Petersons chose to come to this meeting.

Justice read "Any person or entity desiring a waiver or modification of the requirements of a zoning ordinance (street ordinance as discussed) as applied to a parcel of property that he owns, leases, or in some way holds an interest may apply to the Board of Adjustment for a variance from the terms of the ordinance." The Board may grant a variance if and only if the five criteria are met. If the criteria are not met, even one, the variance would be denied. Mrs. Peterson said that she didn't know that was true. Mr. Peterson stated that he believed that all the criteria would be met.

Justice reviewed the five criteria.

1.        Literal enforcement of the zoning ordinance would cause an unreasonable hardship that is not necessary to carry out the general purpose of the land use ordinances.

Justice gave direction that the board would read through the criteria, put down what they each believed and then review the case together. She stated that the wording in a couple of the criteria is confusing - yes or no. Each board member should make sure what they mean by their answer.

2.         There are special circumstances attached to the property that do not generally apply to other properties in the same district.

Bracken wondered if that meant other commercial districts. Justice asked if this was the only commercial property in the area. There was brief discussion that the properties to the south were all residential, but the trailer park and the property to the north were all commercial.

3.        Granting the variance is essential to the enjoyment of a substantial property right possessed by other property in the same zone.

Justice restated the criteria saying that if the variance weren't granted, the property owner would be denied an essential right possessed by other property in the same zone.

4.        The variance will not substantially affect the general plan and will not be contrary to the public interest.

Justice said that this is the statement with the double negative complication.

5.        The spirit of the land use ordinance is observed and substantial justice done.

Justice reviewed the unreasonable hardship item. Stating that it had to be on or associated with the property for which the variance is sought, and it comes from circumstances peculiar to the property not for conditions that are general to the neighborhood. In determining whether or not enforcement of the current ordinance would create an unreasonable hardship the board cannot determine hardship if it is self-imposed or economic.

Justice continued that in determining whether or not there are special circumstances attached, they can exist only if they relate to the purpose that the variance was requested, and the circumstance deprived the property of privileges granted to other properties in the same zone.

Justice pointed out again that the applicant shall bear the burden of proving all the conditions are met. She stated that the criteria were attached to the application that Petersons filled out. Bennett supported by saying that the application included answers to the criteria. Discussion that the Board cannot grant a use variance. They can impose additional requirements. The variance needs to meet the General Plan as much as possible.

Justice reviewed the process for the motion. If there is a motion to deny, the person making the motion must state the item upon which denial is based. If there is a motion to approve, every item must be discussed for approval.

Justice reviewed the application and the criteria.

1.        The hardship is stated that the building will not be able to be used for its purpose in the commercial zone.

2.        There has already been discussion that there are special circumstances, including the location of building and whether it is grandfathered or not.

3.        No statement

4.        Justice doesn't see that the requested variance affects the General Plan, the property is unique.

5.        Whether the spirit of the ordinance is met and justice done is based on the Board decision.

Comments from Andregg that the street is what it is and will probably need to be addressed in the future. He would like it to go through the proper channels - Planning Commission and City Council - to change the road. Justice replied that the Petersons are at the meeting as applicants. Andregg restated that the Petersons still had the option to change direction. Mr. Peterson insisted that they go forward.

Review of worksheet:

1.        Hardship:

v     Andregg stated that it would not create an undue hardship. There was discussion and clarification that Andregg meant that to enforce the ordinance would not create an undue hardship.

v     Bracken felt that there was an unreasonable hardship.

v     Justice stated yes also, and clarified further that to enforce the ordinance requiring the 50' street would be an unreasonable hardship.

Discussion that literal enforcement of the 50' wide street would cause a hardship that is not necessary for the general use. The land use is residential and agricultural and the street doesn't go anywhere. There was discussion that the use of the property has not been discussed, and is not part of the variance. Justice stated that the question is whether putting the 50' wide street would cause a hardship on the general use of the property, because without parking there is no commercial use of the property. Andregg agreed.

2.          Special Circumstances:

Consensus that there are special circumstances attached to the property.

3.        Substantial Property Right:

Discussion about the boundaries of Tourist Resort Commercial zone and the zoning surrounding the property.

v     Bracken is questionable on this item. The type of business ties into this issue. There are some types of business that don't require the same amount of parking. The parking here may not allow the applicant to use the entire building. He is conflicted.

v     Justice stated conflict on this issue as well. The Board will come back to this item.

4.        Won't affect the General Plan:

v     Bracken doesn't believe that the variance would affect the General Plan

v     Justice agrees. There is benefit in the use this property

5.      Substantial justice done:

The request is to keep the road the same as it is coming from State Street. This entrance will never change because of the existing buildings.

Comment from Karl Wilson, property owner on the south side of 480 S., that he has already given up property (25' width) along frontage of five properties on the south side of the street to provide for the 50' road. When the entrance apron from State Street was put in, there was discussion with UDOT that there would not be on-street parking along that road.

Peterson stated that the property given by Wilson still allows those properties to function and that 1)They have homes with parking for 3-4 spaces; 2)Those homes have adequate off-road parking without narrowing; 3)There is a hardship for the Petersons; 4)The road alignment beautifies Wilson's property and creates an aesthetic beauty.

Justice brought the meeting back to the review and referred to the question that Andregg had on item #1. She hesitated and restated that she also had a question on that item. She stated further that the variance couldn't be an economic question. She also said that apparently the applicant looked at a parking issue when they did the expansion of the building because they purchased the lot next to this one for parking.

Mrs. Peterson said it was not an actual financial hardship, that's part of it, but it doesn't allow the building to be used as it was intended. Mr. Peterson inserted "the way the city zoned it."

Justice went back to the review stating that the hardship was contingent on the way the building was used. There are other uses available that would use less parking.

Mr. Peterson said that the zoning of Tourist Commercial showed a desire to have the tourists stop. The business doesn't function with 6-8 spaces, they would need more to be successful in that zone. Justice stated that the economic condition is the use of the building. The back lot could be off-site parking. Peterson said that if the variance works, there would be enough parking. Otherwise it cuts it more than in half. Justice said that on the property at the property line between the two lots owned by Peterson, there is a storage building. If the building were taken down, that area could also be parking. Peterson believes that the parking should be the way they want it, because otherwise there isn't room to pull in or back out.

Justice stated that in her opinion it is how Peterson chooses to use the land. There is enough land according to the plat, but there may be loss of a house or a warehouse - those are economic conditions. Mrs. Peterson said that the building wouldn't be used, it isn't feasible. Mr. Peterson agreed that he couldn't tear down a $200,000 house. In discussing the 4,000 sq. ft. storage building, considering the cost of that would not be valuable to provide about 9-10 parking spaces. He would not give up $150,000 - $200,000 to do that. Mrs. Peterson restated that the building would not be used - it would just sit.

Bracken stated that the conflict is the economic issue and is a major factor. Separation of the issue is difficult.

Bracken questioned Imlay about the 32' entrance from SR9 with the corner of the building into the right-of-way. If they were to put in the 50' street, where would that width go? Imlay stated that at the point about 35-40' from the State Street access, there would be a gradual transition to the 50' width - not knowing the measurement exactly where the building juts into 480 South. So that traffic will flow - it will not be an abrupt width change. Justice wondered that the width not only affects the parking lot, but the turn into the parking lot. Imlay mused that they may even gain parking during the transition area. Bracken asked about the other side of the street - would it be widened. Imlay stated that that has already been done and is not a straight shot, but also widens out.

Discussion about Item #3 - Substantial Property Right: A Tourist Commercial right is to have businesses there. They can have businesses, but it depends on the type of business. Item #1 and #3 have similar concerns.

Mr. Peterson asked the Board to imagine a car pulling in and having to "swerve to miss a car here", pulling into "a narrow neck of land", and "praying to be able to get back out". Customers don't come expecting to use a "go-cart track", they come in expecting something nice and straight, "that made sense". He referred to McDonald's and Wendy's not being able to locate off street curb because people won't stop. If something is nice, psychologically, people will stop. If it's quaint, beautiful, and parking is obvious, the customer will not be frustrated. Parking makes an impression on the business.

Justice restated that no matter personal feelings, the Board has to meet the criteria of the law. There is a 32' entrance into the street.

Mrs. Peterson said that the hardship to her is that "we are in very hard times to have any business survive".  There are few people that even want to go into business. Because of the parking, it limits the type of business that can even go into the building. Mr. Peterson holds that the hour-glass road would look ill-conceived, that it doesn't fit the master plan of the city. It fits a piece of paper, but no logical common sense approach to business or the people in the area. Justice restated that the Board has to abide the law, not judge the law.

Derek Imlay stated that if the storage building was broken down, there could be an additional 23 slots. Mr. Peterson countered that would have to be proven, that the statement was not true. Imlay said that he used the ordinance to figure. Peterson asserted that area for backing and parking would have to be included. Derek referred to engineering.

Bracken mentioned an earlier Board of Adjustment meeting where set-back variance was granted. There was brief discussion about that earlier meeting, set-back requirements, and that it doesn't have any bearing on this item.

There was restated instruction about the motion. If the motion was to grant the variance, all reasons should be stated as applied to the criteria; if to deny, the motion should include which criteria was not met and why.

There was a question as to the possibility to table the motion because of the lack of full Board. The vote with three members in attendance would have to be unanimous. There was discussion about the ratio of vote for a quorum and the requirement for unanimous vote with only three members in attendance. There was concern from the applicants about the fairness of the process if the vote had to be unanimous because the Board was not all in attendance. Question as to the process at the next meeting should there be a motion to table. The applicant would again represent themselves. The members not in attendance will receive minutes from this meeting so the entire subject doesn't need to be re-covered. If tabled, this item would be on the next regular meeting in November. Board members would then ask any additional questions they may have. Applicants agreed that it would be logical.

Andregg asked for clarification that if any item out of the five criteria was a "no", the variance would be denied. Justice restated that if the item were tabled, it would be heard at the next meeting.

Motion by Pat Andregg to table the item until the next month's meeting, second by Bryan Bracken. Motion carried 3-0 with Andregg, Bracken, and Justice voting yes.

The next regular meeting will be November 10. The applicant is welcome to bring further information to the Board for review if there should be any. The other option for going to Planning Commission and City Council for an ordinance rewrite is still available to the applicant. Chair Justice stated that the Board counts on this time as their regular meeting. Justice will work to make sure the other Board members are reminded of the meeting. Bennett again suggested the ability to exercise the option of going to Planning Commission and City Council for a rewrite of the ordinance. He talked to Bezette about addressing the ordinance to keep that area quaint and protected. That option could resolve the issue.

There was clarification that going to Planning Commission and City Council would allow Mr. Peterson to involve his neighbors and would address the whole street. Applicant wondered about the time frame for the Planning Commission and City Council approach. Jeffery stated that there is not a posted meeting for Planning Commission in November this year. It would have to go to the Planning Commission chair to see if he wanted to hold a special meeting. The 11^th is the normal day (Wednesday of the 2^nd week) to hold a meeting, but this year that day is Veteran's Day holiday and there will be no one in the office. The other possible meeting day would be the 4^th Wednesday - Thanksgiving Eve. The Planning Commission could hear the concern on the 2^nd Wednesday of December. If there was something prepared, she assumed it could be at City Council in January. Jeffery stated that this time frame was explained to Mr. Peterson at the office.

Mr. Peterson said that he did not want to go that way. He would like to reconvene this body on November 10^th at 6:00 p.m.

Adjourn: Motion by Pat Andregg to adjourn, second by Bryan Bracken. Motion carried 3-0 with Andregg, Bracken, and Justice voting yes. 8:40 p.m.

 

Minutes taken by June Jeffery.

Chairman, Laura Justice

February 9, 2010, Date of Approval