Board of Adjustment Meeting

WEST VALLEY CITY BOARD OF ADJUSTMENT MINUTES September 2, 2020 The meeting was called to order at 6:01 p.m. by Necia Christensen using Zoom at https://zoom.us/j/6165398014 WEST VALLEY CITY BOARD OF ADJUSTMENT MEMBERS Necia Christensen, Josh Pettersen, Angela McConkey, Sandy Naegle, Scott Spendlove, and William Whetstone ABSENT WEST VALLEY CITY PLANNING DIVISION STAFF Steve Lehman and Kirsten Hunt WEST VALLEY CITY LEGAL DEPARTMENT Brandon Hill AUDIENCE There were three people in the audience. B-4-2020 Andra Non Conforming Use Determination 4170 South 3600 West A Zone REQUEST: Corey Andra, representing his father Carl Andra, has filed a petition with the West Valley City Board of Adjustment seeking a non-conforming use determination regarding the storage of commercial equipment in the A (agriculture) zone. The property is located at 4170 South 3600 West and is bordered on the north, east and south with existing residential land uses. Property to the west – owned by the applicant is vacant. BACKGROUND: WEST VALLEY CITY GENERAL PLAN recommends low density residential uses.  Mr. Andra has filed a request to determine whether the property in question can continue to be used for the storage of commercial equipment as it has since 1962. Although the address listed in the applicant’s letter is different from the location address, staff was informed that the property on which the storage has taken place for these many years, is in fact the same location as noted on the application.  The property in question is known as parcel number 21-05-129-001. It is not in a formal subdivision and at one point included the existing dwelling on the east end of the property. The Andra’s purchased this property long before West Valley City incorporated. One of the brother’s built the home that is located just to the east of the subject property and immediately to the west of 3600 West. When he passed away, the home was divided off from the remainder property sometime in 1990. The portion of property in question as it relates to the non-conforming use is located to the west of the existing dwelling and is zoned Agriculture.  Access to the property is primarily gained from 3600 West. Although the back or west portion of the property is located on a cul-de-sac and would have access there as well. However, during a recent site visit, staff noticed that the entire west portion is fenced without any visible access from the cul-de-sac.  It appears from the pictures that staff was able to take, including aerial photographs, the portion of property used for the storage of commercial equipment is located just to the west of the existing dwelling.  To help substantiate the property being used in this manner, the applicant and staff have provided the following:  1. Aerial photographs from 1979 and 1990. 2. Affidavits from adjacent and nearby residents indicating the use of commercial storage 3. Salt Lake County Property Assessment shows the land use (secondary land use) as residential and commercial.  To summarize, the Andra’s have submitted an application requesting that the Board of Adjustment determine whether the property located at 4170 South 3600 West can continue to be used for the storage of commercial equipment. ORDINANCE SUMMARY: Section 7-12-106(1) of the West Valley City Land Use Development and Management Act reads: (1) There is no presumption of legal existence of non-conforming uses. Individuals or entities asserting the establishment of legal existence of a non-conforming use shall have the burden to prove that the non-conforming use has been legally established and maintained. Steve Lehman presented the application. Scott Spendlove commented that this seems like a strange zone for this proposal. Steve Lehman explained that as the City develops, the agriculture zones are changing to residential zones. Steve stated this parcel has been zoned A1 (agriculture) and has been vacant. He explained if Mr. Andra looks to develop this land, he would most likely ask for a zone change. Corey Andra, the applicant, stated he did not have any questions at this time; however, he is available to answer any questions. Mr. Jensen, who lives in the subject property neighborhood, asked what the zoning was before the agriculture zone. Mr. Andra stated the tax papers have it listed as a residential and commercial zone. Steve explained the 1980 zoning map has this parcel as an agriculture zone except for Andre Drive that is zoned R-1-8. Steve stated at some point; the agriculture zone was changed to a commercial zone. However, the piece of property that the Andra’s own is still zoned agriculture. Josh Petterssen asked Steve if it matters what is stored on the property? Should it just be commercial equipment? Steve explained the request to the Board is for commercial use and whatever vehicles are associated with that use is what the Board will be addressing. Steve stated that any other vehicles stored on the property would be addressed in the ordinance. Motion: Josh Petterssen motioned to approve B-4-2020. Will Whetstone seconded the motion. Discussion: Necia Christensen stated being very familiar with this area, and she was unaware of the piece of land in the back. She explained that this parcel had been used as an agriculture zone as far back as she can remember. Scott Spendlove feels that the aerial photos from 1979 and 1990 and the submitted affidavits reference a timeframe that this has been a continued use. Josh Pettersen stated he has looked at the county records, and they also show this as a continued use. Necia asked Steve if the Board is voting on the non-conforming use for commercial equipment in the agriculture zone or commercial equipment related to the business as of today. Steve explained the Board would just be addressing the storage of commercial equipment in the agriculture zone. A roll call vote was taken: Necia Christensen Yes Angela McConkey Yes Sandy Naegle Yes Scott Spendlove Yes William Whetstone Yes Josh Petterssen Yes Motion Carries – B-4-2020 Approved – Unanimous B-5-2020 John Gust - Variance 5567 West High Market Drive C-2 Zone REQUEST: John Gust is requesting a variance from Section 7-14-404(3)(b) of the West Valley City Code. This section requires that the building square footage used by or accessible to fast food establishments be less than or equal to the building square footage used by or accessible to other tenants within the building having no more than one drive thru window. The applicant is requesting a variance to allow a multi-tenant building in the 5600 West Overlay Zone to have more space for fast food than is currently allowed by ordinance. BACKGROUND: WEST VALLEY CITY GENERAL PLAN recommends commercial land uses. ◻ The subject property is known as lot 4A of the Highbury Centre Subdivision. This plat was recorded with the Salt Lake County Recorder’s Office in 2013. The Highbury Centre is commercial property with a number of small to mid-size retail stores and a number of ancillary food establishments. ◻ As members of the Board of Adjustment may know, properties along 5600 West are part of a thriving commercial center. Mr. Gust has provided a letter outlining the successes of the center as a whole. However, this success has not come without much work on the part of the developer. Mr. Gust alludes to the fact that due to limited access on 5600 West, building orientation is focused on High Market Drive and High Commons Way, thus creating limited exposure for buildings along 5600 West. ◻ The purpose for this application is to address one particular building with a drive thru lane. This building is located at 5567 West High Market Drive. At the present time, it is occupied by a Café Rio, Chiropractor’s office and Firehouse Subs. Dunkin Donuts was the end cap user on the south end of the building but has recently closed. The drive thru that Dunkin had for their business is now being proposed for the Café Rio, a recent addition to this particular building. The applicant would like the option of replacing the Dunkin site with another fast food or fast casual restaurant. ◻ City ordinance states “that the building square footage used by or accessible to fast ood establishments be less than or equal to the building square footage used by or accessible to other tenants within the building having no more than one drive thru window”. If the building were to have no drive thru window, the entire building could be occupied with fast food or fast casual food establishments. The limitation on fast food restaurants only comes from having a drive thru window. ◻ It may be beneficial at this point in the report to provide some context as to why the City wanted to limit fast food restaurants and drive thru options along this portion of 5600 West. Prior to the existing ordinance, the City received and approved requests for a number of fast food restaurants just north of 3500 South on 5600 West. These were stand alone parcels each having their own fast food restaurant. The City Council was concerned that this pattern would perpetuate itself as development started to occur in areas north of 3100 South. ◻ In addition, properties from the 201 Highway to 3100 South were included in what is called an overlay zone. The 5600 West Overlay Zone to be exact. This overlay zone was established to create a welcoming environment as people were coming into the City along 5600 West. One of the restrictions in the original ordinance was to eliminate drive thru windows fronting 5600 West. While some businesses were already existing with a drive thru window, the ordinance would have effect on future businesses. ◻ Over the years staff fielded questions about fast food, fast casual and the need for drive thru windows. So much so, that a petition was made to allow drive thru windows with the  Planning Commission and City Council. To help the business community in this area of the City, drive up windows were allowed. However, they could only be located on certain portions of the building, and they would need to incorporate additional architectural features and enhanced landscaping. They would also need to be part of a multi-tenant building so as to reduce the stand alone look so prominent near 3500 South. ◻ To that end, staff believes that this ordinance has fulfilled its objective. The Highbury Centre and Shoppes at Highbury to the south are successful shopping centers, without stand alone buildings except for one restaurant that predated the ordinance. ◻ With regards to the variance application – when Dunkin Donuts left the building n question, it left the south end cap vacant. As it stands now, that portion of the building would need to be leased to a retail use other than a fast food or fast casual restaurant. The applicant approached staff about the possibility of a variance. Staff explained the process and the need to meet the variance criteria outlined in State Law. Based on the unique layout of the subdivision, reduced access on 5600 West, and the small overall percentage of food options for the overall center, the developer decided to pursue the variance. ◻ To assist the Board in its review, the developer has provided a letter providing some history and percentages of retail, hotel and restaurant uses in this center. In addition, a map was provided that gives you the overall layout of Highbury and where the uses are located. The developer has also provided a letter outlining answers to the variance criteria. ◻ To summarize, the building in question is part of a multi-tenant building located within he Highbury Shopping Centre. Fast food restaurants are allowed in this building, but if a drive thru window is part of one of the building, fast food within said building would be limited to 50% of the building and only one drive thru would be permitted. The applicant is asking that more than 50% of the building be allowed to occupy with fast food or fast casual options. ORDINANCE SUMMARY: Section 7-14-404(3)(b) of the West Valley City Code states that the building square footage used by or accessible to fast food establishments be less than or equal to the building square footage used by or accessible to other tenants within the building having no more than one drive thru window. The West Valley City Land Use Development and Management Act Section 7-12-107 outlines the standards or conditions for approving a variance. The Board of Adjustment may grant a variance only if: 1. Literal enforcement of the zoning ordinance would cause an unreasonable hardship for the applicant 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 zoning district. 3. Granting the variance is essential to the enjoyment of a substantial property right possessed by other property in the same zoning 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 zoning ordinance is observed, and substantial justice done. According to Williams, American Land Planning Law (Volume 5, ACriteria for the Validity of Variances@, pages 131 and 133 et.seq.) there is a presumption against granting a variance and it can only be granted if each of the standards are met. In Wells v. Board of Adjustment of Salt Lake City, the Utah Court of Appeals held that a Board=s decision to grant a variance would be illegal if the required statutory findings were not made. Steve Lehman presented the application. Scott Spendlove asked what the issue would be having two drive thru’s attached to this building? Steve explained that the 5600 W overlay zone allows for one drive-thru per building. Scott asked if Café Rio has a drive-thru. Steve explained that Café Rio does not have a drive- thru. The existing drive-thru located on the west side of the building was for Dunkin Doughnuts. Café Rio is looking to move the existing drive-thru to the north side of the building. Will Whetstone asked what percentage of the building the variance would be for. Steve said it would be for 25% of the building. Will then asked if the building was 75% fast food when Dunkin Doughnuts was located there. Steve stated a mistake by staff, allowing Café Rio to move in when Dunkin Doughnuts was in the building. Steve explained that the building now complies with the ordinance, which would be upheld unless the Board grants the variance. Mr. Gust then gave information on the background of the subject property and the surrounding area. He expressed the need for balance in the area, and there are currently limited options for food. Jim Wright, representing the applicant, answered the five standards or conditions for approval of the variance.Literal enforcement of the zoning ordinance would cause an unreasonable hardship for the applicant that is not necessary to carry out the general purpose of the zoning ordinance. As an initial matter, the Building has no direct access from 5600 West pursuant to requirements imposed by the Utah Department of Transportation and backs into that street. This is different from many other properties along 5600 West that either have direct access to 5600 West or front 5600 West.  1. There are special circumstances attached to the property that do not generally apply to other properties in the same zoning district. Because the Building backs into 5600 West and does not have direct access to it due to governmental requirements out of the Owner’s control, the number and types of tenants willing to lease space in the Building are more limited. The Owner does have the ability to lease additional space in the Building to fast food establishments if the variance is granted as opposed to leaving the space vacant for long stretches of time. Granting the variance helps eliminate an unreasonable hardship of artificially suppressing available tenants by allowing the Owner to fill space in the Building and contribute to the overall success and vitality of Highbury Centre. Other property owners that have direct access to 5600 West or front 5600 West are able to more easily attract tenants thereby contributing to their property right of contributing to the success and vitality of their respective projects or properties. 2. Granting the variance is essential to the enjoyment of a substantial property right possessed by other property in the same zoning district. Granting the variance would not interfere with the purpose of the ordinance to prevent standalone fast food establishments along 5600 West given that the Building already exists. Whether there is one fast food establishment in the Building or more because of a grant of the variance will not create any new stand-alone fast food establishment. In addition, because access to the Building occurs from side streets, granting the variance will not have a negative impact on traffic on 5600 West. 3. The variance will not substantially affect the general plan and will not be contrary to the public interest. Granting the variance is consistent with maintaining and growing the important economic corridor along 5600 West, as described in the General Plan, and does not negatively impact the General Plan in any way. Granting the variance also will contribute to the public good by maintaining the viability, vitality and convenience of an important community asset. It also would contribute to the Owner having the ability to enjoy its property rights more fully. 4. The spirit of the zoning ordinance is observed, and substantial justice done. As set forth above, granting the variance provides many benefits, both relating to the property rights of the Owner, and to the well-being of the public, without creating negative community impacts or hampering the purposes of the zoning ordinance. This allows the spirit of the ordinance to be observed and substantial justice to be done. Motion: Scott Spendlove motioned for approval of B-5-2020.  Sandy Naegle seconded the motion. Discussion: Josh Petterssen stated appreciating the layout of the applicant’s response and the use of the subject area. Sandy Naegle asked if someone wanted to put in something other than fast food, could they do that without a variance? Steve explained if a retail business were to be added, they would not need a variance. He then stated the need for the balance of food in the area; the applicants are asking for the variance. Josh stated that having fast food adjacent to the hotel would be a benefit to the area. Necia then wanted to clarify that if the variance is passed, it will pertain to the land. Steve stated that it would. A roll call vote was taken: Necia Christensen Yes Angela McConkey Yes Sandy Naegle Yes Scott Spendlove Yes William Whetstone Yes Josh Petterssen Yes Motion Carries – B-5-2020 Approved – Unanimous Approval of Minutes from May 6, 2020 – Approved There being no further business, the meeting adjourned at 7:28 p.m. Respectfully submitted, Kirsten Hunt Administrative Assistant