HomeMy WebLinkAboutHearing Officer's Decision - PLNZAD2025-00198 Appeals Hearing Officer Decision – Tim Fotu – PLNZAD2025-00198 (Variance)
Salt Lake City Land Use Appeals Hearing Officer Variance Decision
Tim Fotu – 871 West 400 North
PLNZAD2025-00198 September 30, 2025 This application consists of a request for multiple variances in order to allow for
redevelopment/construction of a residence located at 871 West 400 North in Salt Lake City, Utah
(the “Property”). The first request for a variance was to reduce the required corner sideyard setback to 2’ 81/2” and rear yard setback to 24’ 5”. The second request is to increase the maximum building coverage from 40% to 49%. Variances are decisions made by the Appeals Hearing Officer in accordance with Salt Lake City ordinance, section 21A.18.020.
A hearing on this matter was initially held before the Appeals Hearing Officer on Thursday, June 19, 2025. Mr. Fotu, the property owner, appeared and testified, along with his son. Alicia Seeley, a Principal Planner from the Salt Lake City Planning Department, appeared and represented the City. The appeals hearing was continued as extensions were requested by the
applicant until this matter was finally heard on September 11, 2025.
Discussion In light of the related and dependent nature of the multiple variance requests, they are being
considered together without distinction. Thus, my discussion herein of the variance standards
apply to all variance requests and will not require separate analysis for each request. Before the statutory variance requirements can be analyzed, the Salt Lake City Zoning Ordinance, Section 21A (hereinafter referred to as the “City Code”), provides a threshold analysis
that is required where variances are prohibited as follows:
21A.18.050 Prohibited Variances: “The appeals hearing officer shall not grant a variance that: A. is intended as a temporary measure only; B. is greater than the minimum variation necessary to relieve the unnecessary hardship demonstrated by the applicant; and C. authorizes uses not
allowed by law.”
I find that the Applicant clearly showed that the proposed new construction of a residence is not a temporary measure. However, it is arguable whether they are requesting more than the minimum variance necessary to relieve the alleged unnecessary hardship of a narrow lot. The
City’s staff report dated June 19, 2025 (“Staff Report”) argues persuasively that this request goes
beyond the “minimum necessary” because the resulting footprint is actually “larger than that of all but one of the existing homes on the existing block face” (Staff Report, p. 10). Thus, it is difficult to make the case that the larger footprint is not “greater than the minimum variation necessary to relieve the unnecessary hardship.” The applicant failed to address this threshold question or
provide any evidence to the contrary.
Appeals Hearing Officer Decision – Tim Fotu – PLNZAD2025-00198 (Variance)
Notwithstanding the finding that the application exceeds the minimum variation necessary, I will analyze a few of the variance requests based on the City’s standards for variances. See City
Code 21A.18.060.
Since all of the variance standards set forth in City Code, Section 21A.18.060, must be met for a variance to be granted, I will analyze the variance standards based upon the evidence (or lack thereof) presented at the hearing, findings in the Staff Report and other materials provided to the
Appeals Hearing Officer to consider by the City and the Applicant. City Code also places the
burden of showing that the variances meet all of the standards upon the Applicants (See City Code 21A.18.040). 21A.18.060. Standards for Variances A.1. Literal enforcement of this title would cause an
unreasonable hardship for the applicant that is not necessary to carry out the general purpose of
this title. The applicant identifies the narrowness of the lot as the unreasonable hardship existing on the Property. City Code provides guidance on how to determine whether the lack of a variance
would cause “unreasonable hardship.” City Code states that “the appeals hearing officer may not
find an unreasonable hardship unless: 1. The alleged hardship is related to the size, shape or topography of the property for which the variance is sought; and 2. The alleged hardship comes from circumstances peculiar to the property, not from conditions that are general to the neighborhood.” (City Code 21A.18.060 B.1-2). The first condition is met as the narrow shape of
the property lot is related to the alleged hardship and is somewhat unique to the Property, as most
lots are much wider on the block face. The Staff Report confirms that the “narrow lot posed an undue hardship” Staff Report, p. 11. City Code also restricts the appeals hearing officer from determining whether there is an
unreasonable hardship however if the hardship is self-imposed or economic. City Code
21A.18.060C. The Staff Report raises the issue that the existing building was not built according to the approvals for a variance from the Board of Adjustment in 2010 and went beyond what was approved. Thus the City argues that the coverage and setback noncompliance (which is the basis for this application at issue) is self-imposed because they “chose to dismiss the approval and build
beyond what was approved” Staff Report, p. 11. The Applicant was not persuasive to the Appeals
Hearing Officer that the alleged hardship was not self-imposed. Therefore, the Applicant was unable to show that the alleged hardship was an unreasonable hardship as required by the City Code.
21A.18.060. Standard for Variances A.2. There are special circumstances attached to the Property
that do not generally apply to other properties in the same zoning district. City Code provides guidance for finding whether special circumstances exist, namely, that (1) “the special circumstances relate to the alleged hardship; and (2) the special circumstances
deprive the property of privileges granted to other properties in the same zoning district”
(21A.18.060D.
Appeals Hearing Officer Decision – Tim Fotu – PLNZAD2025-00198 (Variance)
The City acknowledges that the Property was narrower than neighboring and surrounding lots and argued that this contributed to the 2010 Board of Adjustment decision to grant some relief.
Staff Report, p. 11. However, whether “the special circumstances deprive the property of
privileges granted to other property in the same zoning district” (City Code 21A.18.060D) is the heart of this matter. The Applicant through its attorney argued that other property owners “enjoy the right to construct functional, livable single-family homes” arguing that without the variances that his client would be forced to settle for “an unusually narrow and impractical structure.” (Letter
from Valerga Lawyers, dated September 10, 2025). However, the client failed to show beyond
stating so that the structure would be impractical. The reality remains that the client can build a single-family structure and enjoy the same privileges granted to others, but to increase the footprint that is significantly larger than neighboring homes is not the purpose of a variance.
The Applicant has not shown that it is deprived of “privileges granted to other properties
in the same zoning district.” Thus, the Applicant has failed to show that it meets this second variance standard. 21A.18.060. Standard for Variances A.3. Granting the variance is essential to the enjoyment of a
substantial property right possessed by other property in the same district.
The Applicant did not show that granting these requested variances are “essential to the enjoyment of a substantial property right possessed by other property in the same district.” Other potential avenues of development are available to the Applicant to retain a single-family dwelling
on the Property. Therefore, the Applicant was unable to provide evidence to meet the standard set
in A.3. 21A.18.060. Standard for Variances A.4. The variance will not substantially affect the general plan of the city and will not be contrary to the public interest.
This standard was not addressed in the Staff Report. The Applicant’s attorney persuasively argued that the proposed variances will not substantially affect the general plan of the city and will not be contrary to the public interest. I agree.
21A.18.060. Standard for Variances A.5. The spirit of this title is observed and substantial justice
done. Zoning ordinances are in place to ensure an orderly development of properties throughout the city consistent with the duly adopted regulations, of which setbacks and lot coverage, are an
integral part. The spirit of the title is to enforce the existing regulations, but under very limited
and specific circumstances vary from those existing regulations. Furthermore, simply having a desire to build a new single-family dwelling that does not meet City Code in various ways does not translate into substantial justice being done. There are many properties that are not code compliant and that have to build and conform to existing regulations. The Applicant has been
unable to show that the variances requested would meet the spirit of the City Code and that
substantial justice would be done.
Appeals Hearing Officer Decision – Tim Fotu – PLNZAD2025-00198 (Variance)
Conclusion and Ruling
Because all of the standards required by City Code to grant a variance were not met by the
Applicant, I must deny the variance requests. My findings herein are based on the documentation in the lengthy Staff Report, including the Application and other materials provided by the Applicant in this matter, including correspondence from his attorney, along with testimony and discussion at the public hearing. These items collectively provide substantial evidence to support
the conclusion reached and are incorporated herein by this reference. The applicable standards set
forth in the Salt Lake City Code Section 21A.18.060 were discussed at length by the City in the hearing and in its Staff Report. The Applicant also responded in writing to the City along with some oral testimony at the hearing. However, the Applicant only lightly touched on the merits and legal standards before me and made most of the arguments based on fairness and requests for
a merciful outcome. While the burden to show that the variance standards were met lies entirely
with the Applicant, this Applicant was only partially successful in doing so. Based on the evidence submitted orally and in writing, I found that the initial threshold requirements for a variance were not met, and only a few of the variance standards were met by the Applicant. Because City Code requires that all five requirements be met, the variance requests fail and are denied.
Therefore, based on the written materials both from City staff and from the Applicant, as well as testimony in the hearing and discussion of each of the variance standards, I must deny the variance to reduce the corner side yard setback to 2’ 81/2”, to reduce the rear yard setback to 24’ 5”, and to increase the maximum building coverage from 40% to 49%. since all of the required
standards for a variance consistent with Code Section 21A.18.060 were not met.
Dated this 30th day of September, 2025
Matthew T. Wirthlin, Appeals Hearing Officer