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
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