Hearing Officer's Decision - PLNAPP2024-00687SALT LAKE CITY LAND USE APPEALS HEARING OFFICER APPEAL OF ADMINISTRATIVE INTERPRETATION CASE NO. PLNAPP2024-00687 APPELLANT MARK MAXFIELD, 617 SOUTH 1200 EAST PUBLIC HEARING HELD AUGUST 15, 2024 DECISION ISSUED AUGUST 23, 2024
On August 15, 2024, a public hearing was held on this matter. Mark Maxfield (“Appellant”) appeared on his own behalf. Attorney Katherine Pasker appeared on behalf of Salt Lake City (the “City”). During the hearing, Mr. Maxfield provided direct testimony and proffered testimony on behalf of other witnesses who did not personally appear. John Anderson, Salt Lake City Planning Manager, provided testimony on behalf of the City. Two members of the public
provided written comments which were accepted into the record. After reviewing the evidence submitted, testimony provided, and arguments presented, the following findings of fact and conclusions of law are adopted:
FINDINGS OF FACT
1. A residence (the “Dwelling”) was constructed at 617 South 1200 East, Salt Lake City, Utah, sometime in the 1930s (“Property”). While the City does not have the original building permit, records from the Salt Lake County Assessor indicate that as originally constructed, the
Dwelling was a single-family residence.
2. In 1987, the Property owner at the time applied for, and Salt Lake City issued, a building permit to construct a deck and finish the basement of the Dwelling. The permit confirms that, structurally, the Dwelling did not consist of three separate dwelling units when the building
permit was issued.
3. The directories from 1959 indicate the Property was occupied by an individual and a business, which is consistent with a single-family dwelling. Also, directories from 1993 indicate the Property was occupied by two individuals with the same phone number, which would also be consistent with a single-family dwelling. No evidence was presented that prior to 1993, the
Dwelling included separate excess dwelling units.
4. In April of 2010, the Property owner at the time, Kara Smidt, applied for, and Salt Lake City issued, a building permit for the conversion of the Dwelling garage into a living space (“Smidt Application”). In the Smidt Application, the Property owner was required to inform Salt Lake City of the use of the premises. In multiple locations, the Property owner listed the use of the
Property as a single-family dwelling. In the plans attached to the Smidt Application, a handwritten
note is included which states “not a separate unit from the rest of house.” Mr. Anderson, on behalf of the City, testified that while it is unknown who wrote the note, it is the standard practice for Salt Lake City Staff to instruct applicants to write clarifying notes on application materials.
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5. Included with the Smidt Application was a letter with a sworn and notarized section from Michael Krause which states “[w]hen I brokered the property in 1996 the basement apartment was complete and had been finished for many years.”
6. The Smidt Application also includes a note which appears to have been written by a Salt Lake City building inspector, which states “by phone confirmed w/ Gary Rigler that structure functions as a Single Family Dwelling, specifically that all points of structure are open to all others that there are no separations, that it is not a duplex.” (emphasis in original).
7. In 2016, Salt Lake City opened a civil enforcement case regarding illegal excess
dwelling units. This case was closed on August 31, 2017, after the Property owner indicated that they would not rent out additional units. During the August 15, 2024 Public Hearing, Appellant proffered that his son, who was the Property owner at the time the civil enforcement case was opened, would testify that no such statements were made. However, the City has a contemporaneous record supporting the statement and no evidence was presented that Appellant,
or his son, sought to reopen the legalization of the excess dwelling units after the civil enforcement case was closed, until the current request.
8. Appellant also presented evidence that, at one time, three electrical utility meters were installed but two had subsequently been removed. He did not know when they were installed
or removed, nor was any evidence submitted that the meters had ever been used.
9. Appellant also presented several other documents relating to, or from, prior renters of the Property. Based on these documents, the Dwelling was used for at least dual-occupancy during various times between August 2012 to December 2017, and after 2020.
10. Appellant also presented several general statements from neighbors and others
regarding past occupancy. These statements, however, do not provide specific details to support,
with any degree of certainty, when the Dwelling was first occupied as a multi-family dwelling or how many units existed, nor are such statements useful in determining the frequency of the use of any excess dwelling units.
11. Carter Williams, a neighboring property owner, provided a more specific written
statement that stated “I can confirm that the property has been used as at least dual occupancy
since at least 1995.” This statement, however, conflicts with signed representations from prior owners that the Property was being used as a single-family dwelling on multiple occasions since 1995. Due to these contradictions, Mr. Williams’ statement is, at best, general in nature and is unpersuasive that the Dwelling contained excess dwelling units prior to April 12, 1995.
12. After weighing all evidence presented, Appellant has failed establish facts sufficient
to support that excess dwelling units were in existence prior to April 12, 1995.
13. While Appellant has established that from at least 2012 to the present excess dwelling units were maintained, at least periodically, within the Dwelling, Appellant has failed to present sufficient evidence to establish that the excess dwelling units were maintained within the
Dwelling from April 12, 1995 to 2012.
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14. Appellant requested a Determination of Nonconforming Use to legalize three units in the Dwelling.
15. Salt Lake City issued its administrative decision on May 30, 2024, denying the
legalization of the excess dwelling units. Appellant timely appealed.
CONCLUSIONS OF LAW
1. Pursuant to Salt Lake City Code Section 21A.16.030 I, the administrative decision is reviewed de novo, with no weight given to Salt Lake City’s administrative decision.
2. Pursuant to Salt Lake City Code Section 21A.16.030 J, Appellant bears the burden of proving the decision appealed is incorrect.
3. In order to legalize the excess dwelling units, Appellant bears the burden of establishing: (1) the excess dwelling unit(s) existed prior to April 12, 1995; and (2) the excess unit(s) has been maintained as a separate dwelling unit since April 12, 1995. Salt Lake City Code
Section 21A.38.075 B.
4. As Appellant has not presented sufficient evidence to establish that the excess dwelling units existed prior to April 12, 1995, and that the excess dwelling units were maintained after April 12, 1995, the requested excess dwelling units fail to meet the standards required in Salt
Lake City Code for legalization.
DISCUSSION To establish that an excess dwelling unit existed prior to April 12, 1995, Appellant may
rely on 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(s), tenant(s), or neighbor(s);
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.
Salt Lake City Code Section 21A.38.075 B 1.
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The Appellant must also establish that the 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 that indicates that the unit has been occupied at least once every five calendar years; B. Evidence that the unit was marketed for occupancy if the unit was unoccupied for more than five consecutive years;
C. Documentation of construction upgrades may be provided in lieu thereof; or 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 years.
Salt Lake City Code Section 21A.38.075 B 2. While Appellant is able to provide specific evidence regarding the excess dwelling units after 2012, there is contradictory evidence regarding excess dwelling units prior to 2012. As the
City noted, prior owners made express and specific representations that there were not separate
dwelling units within the Dwelling. Specifically, in 1987 and 2010, the Dwelling was represented to the City as a single-family dwelling. While there is a letter included with the 2010 building permit application that indicates that a basement apartment was complete prior to 1996, the Property owner at the time represented to the City that the Dwelling was a single-family dwelling.
Notes on the plans, as well as from the inspector, confirm that the basement unit was not a
“separate” unit. Additionally, directories and other contemporaneous records indicate that as of 1993, even if there were multiple unrelated individuals residing in the Dwelling, they used the same telephone number and thus were not residing in a separate dwelling unit.
Appellant, on the other hand, relies on general statements from neighbors. These
statements, however, lack sufficient detail to establish when and how many excess units were in existence within the Dwelling. These statements also conflict with the statements and representations made by prior owners, which casts doubt on the credibility and reliability of the statements. Further, due to the lack of specificity, their usefulness in establishing the number of
excess dwelling units and the times when such units were maintained is, at best, extremely limited.
Appellant also points to the three separate utility meters and three separate electrical breaker panels in the Dwelling as evidence of three separate units. However, as Appellant acknowledges, two of the three separate utility meters were removed and the Property continued
with a single electric utility meter. It is unknown when the three meters were installed. No evidence
was provided that the additional meters were ever actually in use. Accordingly, while the evidence of three utility meters and separate electrical breaks suggest that, at some point, there were three separate dwelling units with the Dwelling, this evidence on its own, or even in conjunction with the other evidence presented, is insufficient to establish the existence of excess dwelling units prior
to April 12, 1995, or that they were maintained after April 12, 1995. Indeed, the removal of two of
the three utility meters suggests that, at some point, if there were excess dwelling units, those excess dwelling units were abandoned.
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The City also requested that Appellant be equitably estopped from presenting claims that the representations made by the prior Property owner in 2010 were not accurate based on general allegations of the neighbor. Having weighed the statements of the neighbors, along with the
statements by the prior Property owner, and finding that, in balance, the statements made by the prior Property owner in an official application are credible and the statements of the neighbors are ultimately unpersuasive, no ruling on the issue of equitable estoppel is necessary. DECISION
As the Appellant failed to bring forth sufficient evidence to meet his burden that excess dwelling units were in existence prior to April 12, 1995, and that, even if there were excess dwelling units in place prior to April 12, 1995, those excess dwelling units were maintained as separate dwelling units since April 12, 1995, the requested excess dwelling units do not meet Salt Lake City’s established standards for until legalization. Accordingly, the Administrative
Interpretation is AFFIRMED and the request for legalization of excess dwelling units at 617 South 1200 East is DENIED. This decision may be appealed to the Third District Court within 30 days of the date of this
decision. Dated this 23rd day of August 2024
Clayton H. Preece Appeals Hearing Officer