Board of Adjustment Meeting

WEST VALLEY CITY BOARD OF ADJUSTMENT MINUTES December 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 Pettersson, Angela McConkey, Sandy Naegle, Scott Spendlove, and William Whetstone ABSENT William Whetstone WEST VALLEY CITY PLANNING DIVISION STAFF Steve Lehman and Kirsten Hunt WEST VALLEY CITY LEGAL DEPARTMENT Brandon Hill AUDIENCE There were 5 people in the audience. B-6-2020 Gentry Finance 1829 West 3500 South #6 (existing) 1839 West 3500 South #2E (proposed) C-2 Zone REQUEST: Mr. Richard C. Terry, representing Gentry Finance Corporation, is requesting an appeal of a West Valley City Planning and Zoning decision regarding property located at 1839 West 3500 South #2E. West Valley City Staff determined that an existing non-conforming business of which Gentry Financial is, cannot relocate to a new location without losing its non-conforming status and therefore, denied a new business license application. Gentry Finance believes the Staff decision is an improper interpretation and enforcement of the City’s Ordinances. BACKGROUND: The West Valley City General Plan recommends General Commercial uses. Gentry Finance has operated in West Valley City for the past 29 years. According to the description of the business in question, it is defined by the City as an Alternative Financial Services Provider (AFSP), which includes uses such as Car Title Loans, Check Cashing, Pawnbrokers, Unchartered Financial Service Providers, and any businesses or entities offering similar services. For the Boards information, the definition of Unchartered Financial Service Provider means any business extending loans, cash advances, short term credit, rent-to-own services, or any similar financial services, excluding federal and state chartered banks, industrial banks, savings and loan institutions, New and Used Automobile Sales, and credit unions. Subsequent to Gentry Finance’s original approval at this location, various City ordinances have changed have been modified, thus making Gentry Finance a non-conforming use. It is not uncommon for City Ordinances to change over time. Changes in demographics, elected officials and vision of the City are often times related to changes in City Ordinances. As mentioned previously, Gentry Finance has been operating in West Valley City for approximately 29 years. However, due to changes in City Ordinances as mentioned above, the location of Gentry Finance would no longer qualify for an Alternative Financial Services Provider. It should be noted that Gentry Finance can continue to operate at its present location as a non- conforming use. To help the Board in its decision, staff would like to explain why the existing Alternative Financial Service Provider at this location is non-conforming. a. No Alternative Financial Service Provider shall be located within 500 feet of any Agricultural Zone, Residential Zone, or Residential Use. The business is within 500 feet of an Agriculturally zoned property to the southeast. b. No Alternative Financial Service Provider shall be located within 1,000 feet of any other Alternative Financial Service Provider. The business is within 1,000 feet of at least 2 other Alternative Financial Service Providers.  c. One Alternative Financial Service Provider shall be allowed in the City for every 10,000 citizens of the City. There are currently more Alternative Financial Service Providers than allowed in the City at the present time. In the application of appeal to the Board of Adjustment, Gentry Finance stated that they are proposing to relocate from their existing address of 1829 West 3500 South to 1839 West 3500 South. Gentry Finance would move from one building to the other on the same property. The purpose for the intended move is to locate into a larger space to comply with various limitations brought about with Covid-19. The City’s Business Support Officer determined that since the business is currently non- conforming, any relocation would void its non-conforming status. Therefore, a new business license could not be granted at the new location. Staff would like to point out that that the new location is also a location where it can’t operate, since you could move a nonconforming business to a new location if it would be conforming at that new location. In response to the Business Support Officer’s letter, the applicant has decided to appeal this decision to the Board of Adjustment. ORDINANCE SUMMARY: An appeal may be made to the Board of Adjustment by the City, the applicant, or any other person or entity adversely affected by a zoning decision administering or interpreting a zoning ordinance. Section 7-1-114 - Appeals Unless otherwise specified in this Title, appeals are to be submitted within ten days of a decision or recommendation. All appeals shall be in writing and shall set forth with specificity all errors alleged, all theories of relief that can be asserted in state or federal court concerning the subject matter of the appeal, and all evidence to be considered by the body hearing the appeal Section 7-12-105(1)(2) - Appeals Standard of Review (1) The notice of appeal shall set forth with specificity the grounds for appeal and all errors asserted by the Applicant. The Applicant shall include in the notice of appeal every theory of relief that it can raise in district court or in a further appeal of the decision or order of the City. The notice of appeal shall include all attachments, exhibits, witnesses, and other evidence that the Applicant will present to the Board of Adjustment. No evidence not included in the notice of appeal shall be presented by the Applicant. The City may rely on any evidence submitted by the Applicant and any evidence considered or reviewed in making the decision or order that is the subject of the appeal, including but not limited to the testimony of individuals involved in the decision.  (2) The Applicant shall have the burden of proving that the decision, order, or action of the City was arbitrary, capricious, or illegal. All factual determinations or judgments made by the City shall be presumed to be correct unless the Applicant proves that the determination or judgment was arbitrary and capricious. The concurring vote of three members of the Board shall be necessary to reverse any order, requirement, decision, or determination of any administrative official, planning commission or agency or to decide in favor of the appellant. After reviewing these sections of City ordinance, the Board shall recognize that the person or persons making the application will have the burden of proving that an error was made by the Planning and Zoning Official. ALTERNATIVES: In regard to B-6-2020, the Board of Adjustment may find the following: 1. If the Board finds that the application does not demonstrate that an error was made, and/or that the applicant has failed to meet the burden of demonstrating such an error and that sections of the zoning ordinance were not incorrectly administered or interpreted by the Planning and Zoning Official, The Board of Adjustment shall deny the appeal which would affirm the staff’s decision to deny a business license as mentioned in the appeal application. 2. Should the Board find that the Planning and Zoning Official erred in the administration or interpretation of the zoning ordinance, the Board should overturn the decision by allowing Gentry Finance to relocate as mentioned in the appeal application. 3. Continue the application in order to allow further consideration or evaluation on any particular matter of the proposal. Scott Spendlove: Brandon, could you outline for the board, to narrow down what the parameters are that we are judging this appeal by? Brandon Hill: Yeah, you bet. So, Steve Lehman is correct, this is not a variance application or a non-conforming use application, which are the typical things that come to the board most often. This is an appeal of a staff decision. And so, what you're deciding is whether staff was wrong to deny the application from moving on. The standard that set forth in the ordinance, is that the staff decision has to be upheld unless the decision is arbitrary and capricious. What that means is that you would overturn the staff’s decision if there's no good reason at all for why the staff did what they did. If it's just completely out in the night and not tethered to the ordinances at all. And you would uphold that decision, if the staff’s decision was not arbitrary and capricious. If there was a reason tied to the ordinances for why the staff made the decision that they made. The biggest thing to be aware of, is that so the staff decision is based only on the ordinances and so they don't have the ability or the discretion to grant relief from those ordinances if they think it would be a good idea. And so, even if you think that the staff  could have been more lenient or could have extended more understanding the staff doesn't have the discretion to do that. So, what you're looking at, in the context of this appeal is was the staffs decision, according to the ordinances correct and if there was no basis at all to find that it's correct, then you would overturn it and otherwise you would stick with the staff decision. Scott Spendlove: Okay, so we don't need to concern ourselves with dictionaries or Google Maps, we're looking at; business located within an agricultural zone, alternative financial services providers within 1000 feet of each other, and having one financial service provider for every 10,000 people. So, one of the three would be sufficient to deny the appeal. Brandon Hill: That's correct. Scott Spendlove: Okay, thank you. Necia Christensen: Any other questions for staff. Josh Pettersson: I've got one real quick question. So, Steve mentioned that there are multiple other financial institutions and so they are within close proximity to each other. Does that mean all the other providers of this type, are also non-conforming and working off non-conforming permits as well? Brandon Hill: So, this is Brandon again and I can take that one as well. And the answer to that is, is yes. If you have got another one that's within 1000 feet of Gentry by definition that one would be non-conforming as well. Josh Pettersson: That's what I was wondering, thank you. Necia Christensen: Brandon. I have a question for you to related to that. In years past this would have been a conforming use, even if it was moved into the other buildings, is that correct, before a lot of changes were made to the ordinances. Like 20 years ago? Brandon Hill: So, at one point, it would have. Sandy Naegle: All right, so when we're looking at this, we're not saying the nonconforming use stays with the land. This doesn't have anything to do with the land because they're both on the same property is that right Brandon Hill: So, in this case the non-conforming use wants to move to another location. The non-conforming use runs with the business where it is. Even though the business is non-conforming, it can continue to operate at its current location by virtue. If the business wants to move somewhere else, then you would have to comply with the ordinances at that point. Sandy Nagle: So, it's the business that's non-conforming then. Brandon Hill: That's right. But the non-conforming use that exists right now is for business and it is tied to the location. So, once it moves it doesn't have that protection. Sandy Nagle: But it looks like they're on the same plot of land, you've got the whole thing circled in red. Brandon Hill: Yeah, so, the nonconforming uses limited to the whatever the current approval is. In this case, their current location is a portion of a property and the non- conforming use applies to that location. When you have lots with split zoning where you'll have a really big lot where half is zoned agricultural and half zoned commercial so sometimes that will happen in that context as well. Sandy Nagle: I’ve got another question if I may, um, did they have to go to the board to get the non-conforming use. Brandon: And so, it would be the time. in that case they had a valid approval, and then the ordinances changed and so what was previously a conforming use became a non- conforming use. They didn't have to come to the board, because they were already there. They could come to the board for a recognition of that non- conforming use, but I don't think anybody in this case disputes that they have a non-conforming use. Sandy Nagle: Okay. Thank you. Necia Christensen: Anyone else. Necia Christensen: All right so who's going to be making the presentation for Gentry. Richard Terry: This is Richard Terry and I will be making a presentation. Necia Christensen: Mr. Terry, go ahead. Richard Terry: Thank you very much. Good evening. I work for a law firm, Terry Jessop & Bitner and I'm pleased to represent Gentry Finance Corporation. Also attending with me tonight is Brandy Man, the branch manager of the West Valley City location. She has been employed there for eight years: And I believe that in house counsel Kyle Simpson is also with us here. So, we appreciate your time and your willingness to hear our appeal. Hopefully the materials that we've submitted so far, weren't too long for you, as has been mentioned Gentry has been operating at 1829, West 3500 south for about 29 years. It's an installment loan company. It's different from a payday lender, a title loan business, check cashing business or a pawn shop. Its only business is making loans that require installment payments. And those are made over the course of several months. There's no check cashing there's no Title Loans there's no payroll lending going on. It's lumped in with the alternative financial service providers, but legally it looks a whole lot more like a bank or a credit union. Just without the charter than it certainly does like a pawn shop. It's quite a bit different, it only does that one narrow line of business in the form of installment loans. COVID-19 has impacted their business. They're a fairly small store in that space, and it can only accommodate a few visitors at any given time. The September 20, 2020 public health order of Mayor Jenny Wilson changed how Gentry runs their business at that location. And so, a slightly bigger space was sought. Fortunately for Gentry, the landlord had a larger space close by. It's just a little bit to the west it's in the same mall. The move would be fairly easy. The landlord's known location would be less disruptive to its current clientele, and it would be advantageous to the success in the business. I'll be it would cost them a little bit more. The landlord would earn a little bit more because the space is a little larger. Unfortunately, however the city denied the business license that creation, even though there's no change to the business itself. They're only going to operate 50 feet further to the west. So, Gentry's got a choice. It can terminate its current employees and those that they've employed for 29 years and close their doors, it can move outside of West Valley City, where it's been for the last three decades, or it can keep operating just as it has been just a little bit more dangerous and more dangerous for the citizens of West Valley City and more dangerously for the employees. So, it's decided to appeal. So, the standard has been mentioned whether the city's decision to deny Gentry’s license was arbitrary capricious or illegal. I would take issue with the description from Mr. Brandon Hill in terms of what how he's characterized these three points. So, what does arbitrary mean well it's based on a random choice or a personal whim, or when there's no reason or system. It's unrestrained and autocratic in the use of authority. You may say well, the city has reasons, and if the city has reasons how can it possibly be arbitrary. Well, that's not what arbitrary and capricious means it's not whether they have reasons, it's whether or not the city goes about applying its ordinances. It's how it does that to an existing business. It's the application of those reasons. And so, you want to ask yourselves does it make sense to force the shutdown of a long- term contributing business just because of code. Does it make sense to say the business can operate forever Unless you move in which case you're out of the city. That decision simply harms the business, the application, as has been, as has happened here simply harms one business. It doesn't hurt the citizens of West Valley City; it doesn't harm West Valley City gentry can continue to operate as it has done for 29 years. It just can't do it as safely as it has in the past. It just can't do as safely as it has in the past, and it causes potential risk to the citizens of West Valley City. If the ordinances are applied the city's application of these ordinances will either drive the business out of West Valley City or cause it to operate less safely that I would submit is arbitrary. So, what is capricious, that's given to sudden or unaccountable, and accountable changes or moving behavior. It's impulsive or unpredictable. Does it make sense to grant or deny a license as a result of a sudden or an accountable novel coronavirus Is it is it being denied. Why is this thing being denied? Well, is it because of something that Gentry did? No, it’s because West Valley City has allowed alternative financial service providers to do business within 1000 feet. And it's because West Valley City has approved more of these types of licenses than allowed based upon West Valley city's population. In short, it's the city's action is the city is changing its meaning, it's behavior, I would submit that's capricious and the way it's applied is likewise capricious, so what's illegal. So, what's illegal. Well, that's something that's done, not according to or authorized by law, something that's unlawful. The city has decided that Gentry can operate forever as long as it never moves. The city staff analysis leaves us believing that Gentry perhaps could move as long as it's a new location where more than 500 feet from houses, or perhaps more than 1000 feet from check city, which is located on 3500 South or perhaps more than 1000 feet for most affordable title loans, which is on Redwood Road. If that's the way you thought  the city was interpreting this, you're incorrect because the city only allows one alternative financial service provider for every 10,000 citizens in the city. The moment gentry moves it can no longer get a business license in West Valley City. So, if it moves it must move outside of West Valley City, it can move nowhere into West Valley City because already the city is allowed to many of those types of businesses to operate. So, it's only course of action is move out of the city or to continue where it sits now. That's not a particularly friendly way to treat a business that is employed hundreds of West Valley citizens and that is providing financial assistance and thousands of loans to financially struggling West Valley residents. Anybody would probably respond by saying, gee, that's not fair, or that is illegal. So, I'd like you to hear briefly from Gentry’s branch manager, Brandi, she will provide the specifics to how Gentry has been affected, and factual basis for gentry is appeal, Brandi. Brandi: Yes, sir. I'm here. Okay. So, I just want to say thank you again for your time for taking up our appeal. I wanted to start by addressing the reason we wish to move. As you know, I like my customers I've been doing this for eight years I have a good relationship with a lot of my customers. And honestly, I have several that I don't wish to expose so I will take their contracts out to their car and things, but that provides a more unsafe environment for, for me and for my employees. You know, at times we have a two-person limit in our lobby, due to the COVID restrictions and they must be at the farthest reaches of the lobby from each other, to get that six feet. At times, we've had a third customer just walk in. you know there are people out there who don't believe COVID is real or just don't care and I'm, I'm not trying to do that. So, what I provided in your packets, along with Richard Terry, are some of the exhibits, and I propose that from Check City we are in fact, at the new building, more than 1000 feet away. It's only about 1020 feet, but it's still 20 feet extra than 1000. And then from Shaffer lane, I provided information that shows, at the new building, which is to he would be 512 feet, I believe. And then the only one that would be in violation at the new location, would be Affordable Title Loans. But they would have to jump fences and a you know scale that eight-foot fence for that car dealership that's between us to get to us in that feet. In fact, the only distance that can be traveled from Affordable Title Loans to our new location would be more than 1300 feet. So, I propose that the direct measurement for Affordable Title Loans is actually inaccurate in doing a true measurement of what somebody could really travel. And then as for the violation of a new business. Well, we're already there. We wouldn't be adding another store. We have no wish to expand what we're currently doing into anything else. Richard Terry: Thank you. Brandi. The board of adjustments makes adjustments. The application because of changed city ordinances prevent Gentry from operating anywhere in West Valley City, but right where they are right now. That makes the application of these ordinances arbitrary and capricious. We would ask the Board to make that adjustment to grant the appeal of gentry finance to move 50 feet to West and to be able to serve the citizens and the customers of West Valley City more safely. Thank you. Necia Christensen: Thank you, Mr. Terry. Any questions for Mr. Terry from the board? Scott Spendlove: Yes. I'm looking at your notice of appeal, which should include all your avenues should you appeal at a future date to the next level. Are you challenging, or is your client challenging the city as determined by the AFSP designation? Richard Terry: No. I'm only simply pointing out that that designation has a certain stigma associated with it. And it typically deals with check cashing businesses and title loans and different kinds of businesses like that. I'm only pointing out that this particular business, Gentry Finance, is actually a lot closer looking to a bank or a credit union, than it is to the classic ones that are in that definition. That's my point. Scott Spendlove: Thank you. Can I jump over to Brandon for a moment? On cases like this. Do we go by a radius, or do we go by a navigable route between affected businesses? Brandon Hill: The distance is a straight-line measure, so the code provides that distances are measured in straight lines, property line to property line. Scott Spendlove: When we're looking at zoning requirements or zoning classification do; we go buy a Google map or would we compare with the city or the county map and use that as the official guideline. Brandon Hill: So that's, that's a question of evidence as far as for the board to weigh which of those they would find more credible or more persuasive. But in the legal sense, the standard set forth in the code is the straight line, property line to property line, so if you're not measuring it that way that's not a proper measurement under our code. Scott Spendlove: Okay. I think that's it for right now. Josh Pettersson: I’ve got one quick question. Do we know how many AFSP’s we have more than allowed by city ordinance? Are we crammed with ease and, you know, because again, it's per 10,000 citizens of the city, and we're already over that, so I’m wondering if we're barely over that or if we're way over that? Brandon Hill: Right I don’t because I'm not in the office. Steve, do you have, do you have that information. Steve Lehman: The City changed its ordinances several years ago, to limit the number to 1 per 10,000 people. It seems to me that there were a few businesses over that. We are a population of over 130,000 people. And it seems to me that we're over that number, which would allow 13 of these businesses and we're over that number by a couple if I recall correctly. Scott Spendlove: Some of these businesses are grandfathered right? Steve Lehman: Yes, some have been grandfathered. So once the ordinance was adopted any business that existed at the time that ordinance was put in place Is allowed to remain in the city. Necia Christensen: As I recall when the ordinance was adopted there were 17 businesses, I agree. All right, well thanks for letting me know anyone else. Sandy Nagle: This is Sandy. I'm back to the arbitrary and capricious. Did you say the decision that has been made, because the City is being capricious saying that they didn't want Gentry to move they weren't acting the way you would think a reasonable person would act? I'm just a little unclear. I guess what it is that I'm asking is, is COVID one of the excuses or one of the defenses you would use in this pertaining to the move. Richard Terry: I would submit, on behalf of Gentry, that yes COVID does have a significant impact on all of this because it is something that has popped up only recently and it does impact how matters are handled and it does require businesses, pursuant to the rules and requirements of the county to do certain things, which they cannot do well in their existing space. And yes, that does create what we believe a capricious result. Necia Christensen: We will hear from Brandon Hill now. Brandon Hill: Sandy that's a great question what I would say to that is that, obviously the coronavirus has impacted how everybody does nearly everything you know we're all on a zoom call tonight instead of together at City Hall. There are lots of changes to business practice. But that's not relevant to the question of what the ordinances are today. So, the need to comply with health guidelines concerning the coronavirus doesn't change the need to comply with other ordinances as well, which Gentry is able to do in their current location, and has been doing as they've remained open. And so, the coronavirus might be an argument for the city to change its ordinances and allow more leniency in this regard. But it's not an argument as to why the ordinances that are currently in place should be ignored. Necia Christensen: Thank you. Any other questions for staff from the board. Josh Pettersson: How about one for Mr. Terry. Okay, Mr. Terry I guess one of the questions that I have is are you are you suggesting that the city is being arbitrary and capricious in their decisions that they have made, or that this inspector, this individual who denied permit was being capricious in his decision to follow the ordinance. Richard Terry: It is the latter. I'm suggesting that when these ordinances get applied by the city officials they need to take into account all of these other issues, otherwise it can become arbitrary and capricious if they don't take into account, COVID, for instance, if they don't take into account the fact that the city has all of these other businesses come in over a period of time, it becomes otherwise capricious when you then say to that one business, guess what, you're out, because we've changed all of our ordinances, and although you're successful and although you give great service here and although you employ people here. Sorry, you got to leave West Valley City. That's where the arbitrary and capricious comes in. Necia Christensen: Any other questions or comments from the Board. All right. Hearing none, I will close the public portion. If you have any further questions, we will not be able to  direct them to Mr. Terry, or anyone from Gentry, but instead, directed directly to our staff members. I’m ready to entertain that motion. If everyone is satisfied that we're ready to discuss it. Sandy Naegle: I don't think we're ready. I feel like I'm out of my depth in this and I don’t know what I don’t know. And I don't know if time would get us anything. Necia Christensen: I was going to suggest that maybe one of the possibilities would be to suspend discussion tonight and extend this to another meeting date set by the board, and Mr. Terry. Sandy Naegle: I'm just wondering about my personal our personal knowledge on the law. Scott Spendlove: You know what, I think we're all focusing capricious. But that's only part of it. I think the applicant needs to show burden of proof and to me, it’s substantial that they have not. Josh Pettersson: This is Josh, I tend to agree with Scott. I mean, it’s not whether we know the law or whether we don't know the law. I mean it's clear from the information that we have that that is the ordinances that West Valley City has right now, right, wrong or indifferent. And to say that the inspector was wrong in his application of the ordinance, I would have to see that he did something outside of what the ordinance says to do. And I don't know I mean, if we want to wait in the meeting we can certainly wait another meeting but I don't know that that that would change my mind in in that I don't know that the inspector did anything outside, different or incorrect in his application of the ordinances in this case. Necia Christensen: Alright, so I, if I may, might say something too. I, I tend to agree with you, Josh. And frankly, with Scott. If we look at the ordinance meaning, the person who did not grant the business license because it would change the non-conforming use to a different address I can understand that he did it based not on how many West Valley people are employed by Gentry, not on how many people go in and out of the building but it’s all on the existing law. And it seems to me that if it was based on the existing law, as much as I would like to see this business succeed and be part of our city, I understand at this moment that it was neither arbitrary and or frankly capricious, it just was an interpretation of the ordinance that the City Council passed to make it so that we would have a certain number of businesses and to be as honest as I can. In our early marriage days, you're kind of business for your client’s kind of business. Mr. Terry was where we bought our washing machine our stove bought our fridge, because they were the people that would loan to young people who didn't have any real credit and lived in a different state all of their lives. So, I appreciate what your business does. I hate to see it leave the city. But by the same token, I don't feel that anything wrong was done the interpretation of the law and in my mind was accurate. The law might have a problem, but not the interpretation there of. I said my piece back to the board. Sandy Naegle: I don't think I want to postpone it; I think we will see her through. Necia Christensen: Do you want to make a motion Sandy. Sandy Naegle: Um, let's see. Necia Christensen: Want somebody to give you words and then you say okay, that's what I want. Sandy Naegle: Yeah, I would appreciate that. Necia Christensen: Okay, who's going to give her words, Josh, Scott. Scott Spendlove: Identify the case, so in the case of B-6-2020, you either approve or deny the appeal. Motion: Sandy Naegle: In the case of B-6-2020, I make a motion to deny the appeal based on our conversation and the following which make the use non-conforming: a. No Alternative Financial Service Provider shall be located within 500 feet of any Agricultural Zone, Residential Zone, or Residential Use. The business is within 500 feet of an Agriculturally zoned property to the southeast. b. No Alternative Financial Service Provider shall be located within 1,000 feet of any other Alternative Financial Service Provider. The business is within 1,000 feet of at least 2 other Alternative Financial Service Providers. c. One Alternative Financial Service Provider shall be allowed in the City for every 10,000 citizens of the City. There are currently more Alternative Financial Service Providers than allowed in the City at the present time. Josh Pettersson seconded the motion. Discussion: Necia Christensen: Okay, let's discuss this motion. So, in this motion. We are saying that by denying the appeal. We are upholding the decision, the staff made based on the law that they apply. Does everyone agree with that? Sandy Naegle: Yes, yes. Josh Pettersson: That's the way I'm seeing it. Necia Christensen: Okay, now, that's just further explaining it. I mean, we could say, know that we can say no to this motion, just as easily as we can say yes. So please don't feel obligated to say yes, if you really do think the staff misapplied the law. Josh did you have something to say. Josh Pettersson: It may be a time for a change to the ordinances, however, the staff’s application of the existing ordinances, which is what we must look at, I don’t see that they did anything wrong. Necia Christensen: You know, this might require going to Brandon Hill, but we might suggest that staff take to the Council a review of this ordinance as a result of this particular case, and they do it in a timely manner so this man's business license doesn't expire before that. Can we do that Brandon Hill? Brandon Hill: There are a couple of ways to approach that, you could definitely include that recommendation. The business license, as it exists now, isn't a problem they have that, and the Board’s decision doesn’t threaten that at all. You can certainly include a recommendation that staff review the ordinance with the Planning Commission and City Council and go from there. Necia Christensen: Typically, we don't want payday loan offerings on every corner. But this kind of a business is a little different. Scott Spendlove: I feel additional considerations for COVID circumstances should apply to all business, not just for an ASFP. I don’t know how Brandon feels about that. Brandon Hill: If it needs to be addressed on a broader level, that’s a good recommendation. Necia Christensen: Does the maker of the motion and a second or of the motion agreed to add those two recommendations? Sandy Naegle: I would love to have those part of my motion. Josh Pettersson: That’s good with me. Necia Christensen: That being said, Now, are we ready to take a vote. A roll call vote was taken: Necia Christensen Yes Angela McConkey Yes Sandy Naegle Yes Scott Spendlove Yes Josh Pettersson Yes Motion Carries – B-6-2020 Denied – Unanimous Necia Christensen: I'm grateful that the board agreed to ask for additional possibilities for this business and others. Thank you. You all are so good. With the appeal denied keep paying attention, we're hoping we're working for you, not against Brandi: Thank you. B-7-2020 Kevin Merrithew – Variance Request 2542 West Robin Road RM Zone REQUEST: Mr. Kevin Merrithew is requesting a variance from Section 7-9-107(2) of the West Valley City Code regarding property located at 2542 West Robin Road. This section requires that an access drive for a single- or two-unit dwelling to a parking area located in the rear yard of the dwelling be a minimum of 10 feet wide. The applicant is seeking a variance of 1-foot to allow a new access drive to the rear of the existing dwelling be 9 feet in width. BACKGROUND: WEST VALLEY CITY GENERAL PLAN recommends medium density land uses. Mr. Kevin Merrithew is the property owner at 2542 W. Robin Road. This property is zoned R-2-8 (two unit dwelling residential, minimum lot size 8,000 sqft). The West Valley City General Plan designates this area as medium density residential. The surrounding zone is R-2-8 on all sides and the surrounding uses are two family dwellings. The home at 2542 W. Robin Road was originally constructed in 1966. Zoning records show that in 1965 this area of the City was un-zoned. In 1970, this property and the surrounding area was zoned R-2-8. The surrounding two-family dwellings were then constructed in 1979. The subject property was the first home built in the area and it was constructed as a single-family dwelling. Mr. Merrithew purchased this property in 2017 and at that time there were two separate dwellings in the home. One is on the main floor and the other is in the basement. Mr. Merrithew recently applied for and received conditional use approval from the Planning Commission for a two-family dwelling. However, parking for the structure would not accommodate the necessary parking requirements outlined in today’s ordinances. Section 7-9-104 states that a two-unit dwelling must have two parking spaces per unit located outside of the front yard setback. The home currently has a two-car garage with no additional space out of the front yard setback. While there is plenty of room in the rear yard, access is limited, but can be gained on the east side of the dwelling but is short 1 foot. Section 7-9-107(2) of the West Valley City Code requires that an access drive for a single or two-unit dwelling to a parking area located in the rear yard of the dwelling be a minimum of 10 feet wide. Thus, a variance request from 10 feet to 9 feet has been submitted. In discussing the variance option, the applicant stated that he could possibly remove the attached garage to add uncovered parking spaces in the rear yard. However, staff believes there is more value in keeping the garage attached to the home. The applicant also discussed parking in the front yard, but staff suggested that parking in the rear would be more aesthetic for the dwelling. Staff then discussed the option of parking in the rear of the property which is allowed and would not need a variance. Although a variance to drive down the east side of the home would still need to be granted. The entire subdivision is made up of two-family dwellings. Most, if not all of these dwellings have parking spaces in the front yard. However, since this dwelling was just approved for a legal two-family dwelling, current ordinances do need to be met. The applicant has submitted answers to the variance criteria. They will be made part of the Boards packet. Should the Board of Adjustment approve the variance, the applicant will be required to work with staff on their site plan approval. ORDINANCE SUMMARY: Section 7-9-107(2) of the West Valley City Code requires that an access drive for a single or two-unit dwelling to a parking area located in the rear yard of the dwelling be a minimum of 10 feet wide. 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. There are special circumstances attached to the property that do not generally apply to other properties in the same zoning district. Granting the variance is essential to the enjoyment of a substantial property right possessed by other property in the same zoning district. The variance will not substantially affect the general plan and will not be contrary to the public interest. The spirit of the zoning ordinance is observed and substantial justice done. According to Williams, American Land Planning Law (Volume 5, Criteria 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 Boards decision to grant a variance would be illegal if the required statutory findings were not made. Kevin Merrithew answered the criteria questions: 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. This property is the only dwelling that was built as a single-family home amidst all others being duplexes. The situation that I am in is a practical difficulty. The City recently approved the home as a duplex, but I’m in need of meeting today’s parking requirements, while all other units in the area do not. Therefore, literal enforcement of the zoning ordinance causes me a hardship that is not necessary to carry out the general purposes 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. The existing dwelling was constructed in 1966. It was originally built as a single-family home. However, in 1970, the entire area was zoned R-2-8. Because the dwelling was built as a single- family home, there is not sufficient parking outside of the front setback for the required off-  street parking. While we could have petitioned for parking in the front setback, we think parking behind the home would be better for the neighborhood. We have enough space to drive by on the east side of the home, but we are short 1 foot for the required drive width. Our property is the only property in the subdivision with this circumstance. 3. The variance is essential to the enjoyment of a substantial property right possessed by other property in the same zoning district. The variance would allow the property to continue to be used as a duplex as all of the other properties in the area are. 4. The variance will not substantially affect the general plan and will not be contrary to the public interest. All dwellings in this area are zoned R-2-8 and are duplex dwellings. This home is no different. Since all other duplexes park in the front yard as a matter of necessity, we are proposing to park the additional cars in the rear yard, thus, being the only dwelling in the area that would be in compliance with current parking requirements. 5. The spirit of the zoning ordinance is observed and substantial justice done The spirit of the zoning ordinance is observed because the variance is minor. Parking outside of the front setback is more valuable than a 1-foot variance. Motion: Sandy Naegle motioned to approve B-7-2020 based on the applicant answers to the 5 variance criteria. Scott Spendlove seconded the motion. Discussion: Scott Spendlove asked Steve Lehman when the Planning Commission approved the conditional use for this application and was part of that condition to come before the Board of Adjustment for a variance. Steve said the approval from the Commission was a month ago. Steve explained with that approval the applicant could remove the garage, park in the front of the building or ask for a variance to park behind the building. The applicant chose to request the variance. A roll call vote was taken: Necia Christensen Yes Angela McConkey Yes Sandy Naegle Yes Scott Spendlove Yes Josh Pettersson Yes Motion Carries – B-7-2020 Approved – Unanimous B-8-2020 Jeff Naylor – Variance Request 1078 West Parkway Avenue A Zone REQUEST: Mr. Jeff Naylor, is requesting a variance from Section 7-9-116(1) of the West Valley City Code regarding the property at 1078 West Parkway Ave. This section requires that all loading areas or docks be located so that no vehicle shall be parked or require maneuvering room within a public street. The applicant is requesting that maneuvering be allowed in the public right-of-way to serve a new proposed cabinet shop. BACKGROUND: WEST VALLEY CITY GENERAL PLAN recommends Business Park land uses.  The subject property is known as parcel 15-23-301-020. This parcel is not located in a formal subdivision plat but has been zoned A since the City’s incorporation. In the fall of 2020, the applicant approached staff about the possibility of rezoning this piece to allow a cabinet shop. After review by the Planning Commission and City Council, the property was rezoned from the A (Agriculture) zone to the BRP zone (Business & Research Park) zone. The property is located west of the Jordan River and north of the Islamic Society of Greater Salt Lake’s Mosque.  Subsequent to the rezoning approval, and upon preparation of a site plan for the new building, it became apparent that it would be difficult if not impossible for deliveries to be made on site without the use of the public right-of-way. Trucks making deliveries to this property would need to use Parkway Avenue to pull forward and then back into the property. As staff discussed the concept plan with Mr. Naylor, he learned that City ordinance does not allow for vehicle maneuvering in a public right-of-way.  Mr. Naylor approached staff about options for this site and the possibility of a variance. Staff explained that one definite feature about this location is that Parkway Avenue would likely never be a through street. The Jordan River is located at the east end, and a light industrial park in South Salt Lake east of that. The only other property at the east end of Parkway Avenue on the north side is the applicant’s residence. The Islamic Society of Greater Salt Lake is located on the south. The other business that uses Parkway Avenue is Brinks which sits on the corner of Parkway Avenue and 1070 West. And Brinks has an access from 1070 West.  Based on the discussion of hardship and unique circumstances, the applicant decided to pursue a variance from the Board. Mr. Naylor has prepared answers to the variance criteria which will be made part of the Boards packet of information.  Should the Board of Adjustment approve the variance, the applicant will be required to work with staff on their site plan approval.  ORDINANCE SUMMARY: Section 7-9-116(1) of the West Valley City Code requires that all loading areas or docks be located so that no vehicle shall be parked or require maneuvering room within a public street.  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, Criteria 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 Boards decision to grant a variance would be illegal if the required statutory findings were not made. Mr. Naylor answered the criteria questions: 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. The product we purchase comes in in 53 ft trucks, literal enforcement of the ordinance would cause an unreasonable hardship because without being able to use these larger vehicles to bring our materials, our business could not work here. 2. There are special circumstances attached to the property that do not generally apply to other properties in the same zoning district. There are special circumstances that are associated with our property. We own the land on the east side of the dead-end road and Brinks is on the west Side of the property, they have 53 ft. trucks in and out all the time. Since we are on a dead-end street that will never go anywhere due to tracks, and the Jordan River, our situation is a special circumstance. We feel like it would not cause any traffic problems for anyone. 3. Granting the variance is essential to the enjoyment of a substantial property right possessed by other property in the same zoning district. The variance is essential to the enjoyment of a substantial property right. This area of the City is filled with commercial type businesses. It is essential that we along with a number of other businesses have larger trucks that make deliveries to our places of employment. 4. The variance will not substantially affect the general plan and will not be contrary to the public interest.  The variance would not substantially affect the General Plan and would not be contrary to the public interest because the road that our business is on is a dead-end street. Therefore, there would be no impact to the general public because the general public rarely comes down this far to the east on Parkway Avenue. Although the Mosque is located across the street it has multiple access points for access. Our delivery trucks are not on site daily, it is only on occasion when we have deliveries. 5. The spirit of the zoning ordinance is observed and substantial justice done. The purpose of this application is to build a warehouse for assembling Kitchen cabinets on Parkway Avenue. It is in an industrial zone with a number of industrial uses. Having larger vehicles deliver product to our shop would be in keeping with the spirit of the zoning ordinance. Motion: Scott Spendlove motioned for approval of B-8-2020 Josh Pettersson seconded the motion. Discussion: Steve Lehman presented the application. Josh Pettersen asked Mr. Naylor if his business has a warehouse in a different location or is this a new business you are starting up. Mr. Naylor said they are renting a warehouse in another location. He stated the plan is to move the entire operation to the 1078 location. Mr. Naylor explained his operation is an assembly plant, they bring product in, assemble it and ship it back out. Josh thanked Mr. Naylor for the answers to the criteria questions. He stated this is a unique situation with trying to back trucks into a skinny lot on a dead-end street. A roll call vote was taken: Necia Christensen Yes Angela McConkey Yes Sandy Naegle Yes Scott Spendlove Yes Josh Pettersson Yes Motion Carries – B-8-2020 Approved – Unanimous There being no further business, the meeting adjourned at 7:28 p.m. Respectfully submitted, Kirsten Hunt Administrative Assistant