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PLNZAD2022-01198 - 134 S McClelland (Amended)March 6th, 2023 AMENDED ADMINISTRATIVE DETERMINATION OF NONCONFORMING USE DECISION AND FINDINGS PLNZAD2022-01198 REQUEST: This is a request by Mike Kessler of National Investment Properties for a Determination of Nonconforming use regarding the subject property at 134 S McClelland St (Tax ID # 16-05-204- 020-0000). The applicant is specifically requesting to have the principal building at this address recognized by the City as a legal conforming two-family dwelling (duplex). The subject property is zoned R-2, which permits two-family dwellings on lots with 8,000 square feet or more in lot area and at least 50 ft of lot width per 21A.24.110. This property has approximately 4,791.6 ft of lot area and is approximately 39 ft wide and does not comply with the minimum lot requirements for the use. DECISION: Based on the review standards listed in 21A.38.075 and the documentation submitted by the applicant, the Zoning Administrator approves the legalization of the excess dwelling unit and recognizes the principal building at 134 S McClelland St as a two-family dwelling. The determination is subject to the following conditions of approval: 1. The unit owner shall allow the City’s Building Office or designee to inspect the dwelling unit to determine whether the unit substantially complies with the basic life safety requirements as provided in Title 18, Chapter 18.50, “Existing Residential Housing,” of this code. The inspection can be scheduled by calling the Civil Enforcement division at (801)535-7225 or email civilenforcement@slcgov.com. 2. All required corrections indicated during the inspection process must be completed within one year unless granted an extension by the Zoning Administrator. A previous Administrative Determination issued January 12, 2022 stated that the legal use of a two-family dwelling at this address was forfeited in 2008. However, the applicant has provided additional information that justifies reopening the case. The documents provided include photographic evidence and notarized affidavits that confirm that work was never completed to convert the building to a single-family dwelling by creating internal circulation between the two dwelling units. FINDINGS: The applicant has provided scanned pages of Polk directories dating back to 1955 and as recent as 2021 that list phone numbers for two addresses, 134 S and 136 S McClelland St, which satisfies Unit Legalization standard 21A.38.075.B.1.f and confirms that the unit existed prior to April 12, 1995. The applicant has also provided a notarized affidavit from a neighbor, Rich Schoepp, which provides a detailed account of the property being continually used as a two-family dwelling for several decades. The affidavit states that the previous owner of the property, Donald “Rusty” Kirkpatrick, lived in one unit and his mother, Margaret Kirkpatrick, lived in the other unit until her death in 2017. Following her death, Rusty rented out the second unit to generate income, which is consistent with the provided Polk directory listings. This affidavit satisfies Unit Legalization standard 21A.38.075.B.2.a, confirming that the unit has been occupied at least once every 5 calendar years. The affidavit and City records show that Rusty constructed a carport structure in 2008 without obtaining a building permit and was soon after notified by Civil Enforcement that he would need to obtain the correct permits and schedule an inspection. When Mr. Kirkpatrick requested a building permit, it was found that the legal use of the property was in question. The building was built as a single-family dwelling in the early twentieth century and had been converted to a two- family dwelling at some point. There are no definitive City records that verify that the conversion was completed legally. Mr. Kirkpatrick was informed of the City’s unit legalization process which may have allowed the City to recognize the use of the property as a two-family dwelling at that time. He chose instead to have the building inspected and recognized as a single-family home even after being informed that it would not be possible to convert the property to a two-family dwelling in the future because the property does not meet the minimum lot area requirement. Building permit BLD2008-80410047 was issued to “pour RV pad and obtain inspection to verify building is a single-family home”. The building permit and zoning certificate were issued the same day, April 10, 2008. An inspection was completed May 14, 2008. The only comment associated with the inspection states “Pad as per plans”, implying that the inspector never went inside the building to confirm that the building had been converted to a single-family dwelling. Additionally, the attached floor plan submitted with the 2008 building permit clearly shows two units within the building, split down the middle with no internal circulation. This floor plan is nearly identical to the “Existing layout plan” submitted with a recent building permit associated with the address, BLD2022-05539. This information, along with the notarized affidavit provided by the applicant, confirm that the conversion was never completed and both units have been continuously rented separately as shown in Polk Directories that have been submitted by the applicant. The 2008 building permit to convert the building to a single-family dwelling was closed out and a zoning certificate was issued without an inspector verifying the use of the building, and seemingly without any interior construction taken place. Therefore, the zoning certificate was issued in error and is considered void. Standards for Unit Legalization: Any request to approve an existing excess unit must comply with the following: 1. The dwelling unit existed prior to April 12, 1995. In order to determine whether a dwelling unit was in existence prior to April 12, 1995, the unit owner shall provide documentation thereof which may include any of the following: a) Copies of lease or rental agreements, lease or rent payments, or other similar documentation showing a transaction between the unit owner and tenants; b) Evidence indicating that prior to April 12, 1995, the city issued a building permit, business license, zoning certificate, or other permit relating to the dwelling unit in question; c) Utility records indicating existence of a dwelling unit; d) Historic surveys recognized by the planning director as being performed by a trained professional in historic preservation; e) Notarized affidavits from a previous owner, tenant, or neighbor; f) Polk, Cole, or phone directories that indicate existence of the dwelling unit (but not necessarily that the unit was occupied); or g)Any other documentation that the owner is willing to place into a public record which indicates the existence of the excess unit prior to April 12, 1995. 2. The excess unit has been maintained as a separate dwelling unit since April 12, 1995. In order to determine if a unit has been maintained as a separate dwelling unit, the following may be considered: a) Evidence listed in Subsection B.1 of this section indicates that the unit has been occupied at least once every five (5) calendar years; b) Evidence that the unit was marketed for occupancy if the unit was unoccupied for more than five (5) consecutive years; c) If evidence of maintaining a separate dwelling unit as required by Subsection B.1 of this section cannot be established, documentation of construction upgrades may be provided in lieu thereof. d) Any documentation that the owner is willing to place into a public record which provides evidence that the unit was referenced as a separate dwelling unit at least once every five (5) years. If you have any questions regarding this interpretation, please contact Trevor Ovenden at 801- 535-7168 or by email at trevor.ovenden@slcgov.com. APPEAL PROCESS: An applicant or any other person or entity adversely affected by a decision administering or interpreting this Title may appeal to the Appeals Hearing Officer. Notice of appeal shall be filed within ten (10) days of the administrative decision. The appeal shall be filed with the Planning Division and shall specify the decision appealed and the reasons the appellant claims the decision to be in error. Applications for appeals are located on the Planning Division website at https://www.slc.gov/planning/applications/ along with information about how to apply and processing fees. Trevor Ovenden Associate Planner CC: Nick Norris, Planning Director Mayara Lima, Zoning Administrator Casey Stewart, Planning Manager and Development Review Supervisor Applicable Recognized Organizations Posted to Web Attachments: Polk directories, affidavits, and photos provided by the applicant Supporting documentation from previous unit legalization research ZONING CERTIFICATE Certificate #8007403 Date of Issue:04/10/2008 Y New Amended SALT LAKE CITY CORPORATION BUILDING SERVICES AND LICENSING THIS CERTIFICATE HAS BEEN ISSUED PURSUANT TO: Building Permit # Temporary Use Application Change of Use application Nonconforming Use Application Site Development Permit: Administrative Interpretation Unit Legalization X This document certifies that the property Is Zoned: The authorize use is: SINGLE FAMILY DWELLING Specific conditions associated with this site: R - 2 Locate At:136 S MCCLELLAND ST PERMIT # 80410047 WAS ISSUED TO INSPECT HOME AS A SINGLE FAMILY DWELLING PER OWNERS REQUEST. T. IRVIN Zoning Administrator ,2008Signed this: day of10 APRIL Date:04/10/2008 Date: Date: Date: Date: Date: Date: