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Staff Report - PLNAPP2024-01011 Staff Report BUILDING SERVICES DIVISION DEPARTMENT OF COMMUNITY and NEIGHBORHOODS To: Land Use Appeals Hearing Officer From: Craig Weinheimer craig.weinheimer@slcgov.com Date: January 9, 2025 Hearing Date: January 16, 2025 Re: PLNAPP2024-01011 PROPERTY ADDRESS: 1807 S 1900 E PARCEL ID: 16-16-431-006-0000 ZONING DISTRICT: R-1-7000 APPELLANT: Susan Klinker, the property owner. ISSUE: Whether the zoning administrator erred in determining that the property is in violation of the City’s landscaping ordinance by having a hedge in the front yard in excess of four (4) feet. CIVIL ENFORCEMENT DETERMINATION: In July of 2024 Civil Enforcement investigated a complaint concerning a hedge at 1807 South 1900 East, Salt Lake City (the “Property”) that was reported to be in excess of the height limitation. Civil Enforcement performed an inspection of the Property and determined that the hedge running from the front property line of the Property to the façade of the residence on the Property is eight feet tall, which exceeds the four foot height limitation. APPLICABLE ORDINANCE: Salt Lake City Code Section 21A.40.120: E. Height Restrictions and Gates: 1. Fences, walls, and hedges shall comply with the following regulations based on the following zoning districts: a. Residential Zoning Districts: (1) Except as permitted in subsection 21A.24.010.P and 21A.40.120.E.4 of this code a fence, wall or hedge located between the front property line and front building line of the facade of the principal structure that contains the primary entrance shall not exceed four (4) feet in height. Illustration of this concept provided in 21A.40.120.E: Appeal of Administrative Decision STANDARD OF REVIEW: This is an appeal of an administrative decision pertaining to an interpretation of Salt Lake City’s zoning code, which is found in Title 21A of the Salt Lake City Code (“City Code”). The appeals hearing officer, established pursuant to Section 21A.06.040, is the City’s designated land use appeal authority on appeals of administrative interpretations. “Any person adversely affected by a final decision made by the zoning administrator interpreting a provision of this title may appeal to the appeals hearing officer in accordance with the provisions of chapter 21A.16 of this title.” City Code 21A.12.040.D. In accordance with Section 21A.16.030.A, an appeal made to the appeals hearing officer shall identify “the decision appealed, the alleged error made in connection with the decision being appealed, and the reasons the appellant claims the decision to be in error.” The appeals hearing officer’s review of the administrative decision is de novo. City Code 21A.16.030.I.1. It is an appellant’s burden to prove that the decision made by the zoning administrator was incorrect. City Code § 21A.16.030.J. APPEAL: The Appellant appears to (1) argue that the language of the code does not apply to her property because “what defines a hedge are arbitrary” or (2) concedes that her hedge exceeds the four foot limitation but that she should not be obligated to reduce its height in order to seek a change in City Code, the hedge provides various benefits, and that it has been at its current height for many years. CASE HISTORY: • On July 9, 2024, Civil Enforcement received a complaint identifying a hedge that blocks the sight of drivers exiting the driveway of the home adjacent to the Property. See Exhibit 1. • On July 12, 2024, Civil Enforcement staff visited the Property and spoke to the Appellant about the need for landscape maintenance for three concerns on the Property. • On August 29, 2024, Civil Enforcement staff mailed and posted a Notice and Order letter identifying the zoning violations. See Exhibit 2. • On September 6, 2024 the planning department received an application appealing the decision. See Exhibit 6. • On September 12, 2024, Civil Enforcement staff visited the Property and confirmed that two of the three violations had been remedied. Appellant indicated intentions to appeal the hedge height enforcement. CIVIL ENFORCEMENT RESPONSE TO APPEAL: The zoning administrator did not err when concluding that the plant material on Appellant’s Property is subject to the four foot hedge height limitation in 21A.40.120.E.1.a(1). Appellant claims that the City is being “arbitrary” in determining what constitutes a “hedge.” While the term “hedge” is not defined in Title 21A of City Code, Section 21A.62.010 provides that “[a]ny words in this title not defined in this chapter shall be as defined in ‘Webster’s Collegiate Dictionary’.” According to Webster’s, “hedge” is defined as “a fence or boundary formed by a dense row of shrubs or low trees.” Based on images of the Property, the plant material on the north side of the Property qualifies as a “hedge” because the material is a dense row of shrubs and the row delineates the boundary between the Property and adjacent property to the north. Therefore, Appellant’s argument that the City’s determination that the plant material is not a “hedge” is meritless. While it is true that this provision of City Code does not prohibit an individual tree in a front yard from exceeding the four foot limitation, this distinction is not arbitrary as an individual tree does not pose the same degree of screening or wall off the public right of way in the way that a fence or row of shrubs does. The City is not prohibited from enforcing the four foot height limitation. Appellant appears to argue that because the hedge has existed at its current height for many years, the City cannot now require the hedge to comply with the height limitation in City Code. Appellant’s argument is akin to an estoppel claim. To prevail on a claim of estoppel against the government “exceptional circumstances must be present such as the intentional discriminatory application of the ordinance.” Utah County v. Baxter, 635 P.2d 61, 65 (Utah 1981). For estoppel to be applicable, the Appellant must show “that the entity made very clear, well-substantiated representations.” Myers v. Utah Transit Auth., 2014 UT App 294, ¶20. Furthermore, “failure to enforce zoning for a time does not forfeit the power to enforce.” Town of Alta v. Ben Hame Corp., 836 P.2d 797, 803 (Utah Ct. App. 1992); see also Salt Lake County v. Kartchner, 552 P.2d 136, 138 (Utah 1976) (“Ordinarily a municipality is not precluded from enforcing its zoning regulations[ ] when its officers have remained inactive in the face of such violations.”). Here, Appellant’s argument fails to adequately support estoppel because there is no allegation that the City made any representations that would amount to allowing Appellant to maintain her hedge in excess of four feet and Utah law is clear that the mere delay in enforcement cannot be the basis for an estoppel claim. Appellant’s policy objections to the four foot height limitation are irrelevant. In her appeal Appellant raised a number of objections to the obligation to keep her hedge at four feet tall, including that the hedge provides habitat, provides shade, and that cutting the hedge would make it unattractive or even kill it. These policy objections to the height limitation are irrelevant to the City’s ability to enforce these restrictions. A four foot height limitation on front yard hedges and fences has been in City Code since at least 1995. If Appellant wanted to challenge this land use regulation, such time to do so has long past. See Utah Code § 10-9a-801(5)(“If the municipality has complied with Section 10-9a-205, a challenge to the enactment of a land use regulation or general plan may not be filed with the district court more than 30 days after the enactment.”). Appellant’s request to delay enforcement is not a decision for the appeals hearing officer. Appellant has requested that the appeals hearing officer allow the hedge to remain to give her additional time to pursue an amendment to the zoning ordinance to allow a taller hedge. While the Salt Lake City Council did initiate a petition to explore this issue on January 7, 2025, it is uncertain whether or not this regulation will be changed, how it will be changed, or when. Legislative changes of this type can often take 8-10 months, if they occur at all. In any event, the role of the appeals hearing officer is to “reverse or affirm, wholly or in part, or may modify the administrative decision” and not to decide issues of enforcement discretion, such as to allow additional time for compliance. See City Code § 21A.16.030.K. Therefore, Appellant’s request is outside the scope of the appeals hearing officer’s role. Additionally, Civil Enforcement is obligated to have this appeal heard by the appeals hearing officer within 180 days of when it was filed, which also renders the delay request improper. See City Code § 21A.16.030.H. NEXT STEPS: If the administrative decision is upheld, the over-height hedge in the front yard may not continue to be maintained in excess of four feet in the front yard and six feet in the side yard. If the administrative decision is overturned the property owner may maintain the existing hedge. A decision of the appeals hearing officer can be appealed to Third District Court within 30 days. ATTACHMENTS: 1 Salesforce complaint 2 Notice and Order letter 3 Landscape plan 4 Enforcement case summary 5. Vicinity Map and Property Photograph 6. Appeal Submissions EXHIBIT 1 EXHIBIT 2 ERIN MENDENHALL DEPARTMENT of COMMUNITY Mayor and NEIGHBORHOODS Building Services N O T I C E A N D O R D E R ZONING August 29, 2024 Susan Klinker 1807 South 1900 East Salt Lake City UT 84108 Property located at 1807 South 1900 East, Salt Lake City, Utah Parcel No.: 16-16-431-006 Case No.: HAZ2024-03120 USPS Tracking #: 9488 8090 0027 6117 2992 17 NOTICE: Notice is hereby given that the subject property was found to be in violation of Title 21A of the Salt Lake City Code which was enacted to maintain the life, health, safety, and general welfare of the inhabitants of Salt Lake City. This Notice is issued following an inspection conducted on August 23, 2024, which identified the following violations: Ordinance Reference Description of Violation Daily Fine 21A.48.040.A.3 It is unlawful to fail to maintain all landscaping materials in the required front and/or corner side yard and park strip, fences, walls, hedges, and/or plants so as to present a neat, healthy and orderly appearance. Landscaping shall not create obstructions within sight distance triangles as defined in Chapter 21A.62. Bush/hedge at corner northwest corner of property still has sight distance violation with vegetation over 30 inches in the sight distance triangle. $25 per day 21A.48.040.A.1 All landscaping shall maintain a clearance from grade level to 7 feet above the sidewalk, or 10 feet above a street. Tree on west side in front of property is hanging below required 7-foot clearance over sidewalk and below 10-foot clearance over street. Also, pine tree on west side in front of property is hanging below 7 feet over sidewalk. $25 per day 21A.40.120 (1) Except as permitted in subsection 21A.24.010.P and 21A.40.120.E.4 of this code a fence, wall or hedge located between the front property line and front building line of the facade of the principal structure that contains the primary entrance shall not exceed four (4) feet in height.) Hedge on north side of lot in front yard needs to come down to 4 feet. $25 per day ORDER: You are hereby ordered to cure the zoning violations within thirty calendar (30) days from the date of this Notice and Order. IF YOU FAIL TO COMPLY WITH THIS NOTICE AND ORDER AND/OR FAIL TO REMEDY THE VIOLATIONS AS SET FORTH IN THIS NOTICE AND ORDER THE CITY WILL PURSUE LEGAL REMEMDIES, INCLUDING BUT NOT LIMITED TO: -- Record, with the Office of the Salt Lake County Recorder, on the title of the property a Certificate of Noncompliance detailing the aforementioned violations -- Assess DAILY civil penalties, in an amount specified herein, pursuant to Salt Lake City Ordinance Title 21A.20.050. APPEAL PROCESS: Any person having any record, title, or legal interest in this property may contest the legitimacy of the zoning violations for which they were cited (but not the amount of the fine). An appeal may be filed with the Salt Lake City Planning Division within 10 days from the date of this notice. The Appeal of Administrative Decision application may be obtained online at https://www.slc.gov/planning/applications/. The fee for filing an appeal is $316. CIVIL ACTION: If the penalties imposed remain unsatisfied after seventy days (70) from the receipt of this Notice and Order, or when the penalty amounts to Five Thousand Dollars ($5,000), the City may use such lawful means as are available, such as the Small Claims Court, to collect such penalty, including court costs and attorneys’ fees. Commencement of any action to correct the violation shall not relieve the person cited of the responsibility to make payment of subsequent accrued civil penalties, nor shall it require the City to reissue any of the Notices required by Title 21A. TIME EXTENSIONS MAY BE GRANTED BY THE CIVIL ENFORCEMENT OFFICER. ALL REQUESTS FOR TIME EXTENSIONS MUST BE IN WRITING AND MUST BE RECEIVED PRIOR TO THE INITIAL 30-DAY DEADLINE. I can be reached Tuesday thru Friday, between 7:00 a.m. to 5:00 p.m. at 801-535-6689 (Office), 385-499-4263 (Cell) or by email Nicholas.Rush@slcgov.com. Please schedule an inspection IMMEDIATELY when the required work is completed. This will stop the accrual of any fines. IN COMPLIANCE WITH AMERICANS WITH DISABILITIES ACT (ADA) THE FOLLOWING INFORMATION IS PROVIDED; FAX NUMBER (801) 535-6174, TDD NUMBER 711. Respectfully, Nick R Nick R (Aug 28, 2024 10:06 MDT) Nicholas Rush Civil Enforcement Officer, 801-535-6689 EXHIBIT 3 EXHIBIT 4 Civil Enforcement Case History Report Tuesday, November 19, 2024 INFORMATION Sidwell # 16-16-431-006-0000 Address 1807 S 1900 E Council District: 7 Case # HAZ2024- 03120 Owner Info: KLINKER, SUSAN 1807 S 1900 E SALT LAKE CITY , UT 84108-2954 Status: Active Date Created: 7/12/2024 Inspector: Rush, Nicholas Created By: 1000512 Complete Date: VIOLATIONS Sight Distance COMPLAINT ORIGIN: SALESFORCE: -> "Our neighbor at 1807 s 1900 e has tall shrubs and large trees obstructing our view when we back out ofdriveway. It is well beyond the 30” height and set back 10’ rule. We have a hard time seeing people walkingon the sidewalk due to this." WORK ACTIONS Comment Type Action Inspector Action Description Date - Time Request Comment In Progress Nicholas Rush Initial inspection 7/12/2024 12:00 AM Result Comment In Progress Nicholas Rush INITIAL INSPECTION//WARNING: Sight distance issue at property. See photos for details. I spoke to owner and walked her through it. She said she would get it done in a couple weeks. Will send warning. 7/12/2024 12:00 AM Result Comment Compliant Nicholas Rush COMPLIANT: Sight distance issue has been rectified. Closing case. 7/31/2024 12:00 AM Request Comment Compliant Nicholas Rush Expiration of Warning 7/31/2024 12:00 AM Request Comment N/O Nicholas Rush 8/23/2024 2:30 PM Result Comment N/O Nicholas Rush NOTICE AND ORDER: Met with complainant and went over issues. 1) bush/hedge at corner northwest corner of property still has sight distance violation with vegetation over 30 inches in the sight distance triangle. 2) hedges on north side of lot need to come down to 4 feet. 3) tree on west side in front of property is hanging below required 7 foot clearance over sidewalk and 10 foot clearance over street. 4) pine tree in front in front of property is hanging below 7 feet 8/23/2024 2:30 PM over sidewalk. Send NO. Result Comment N/O Nicholas Rush NOTICE POSTED//MEETING: I posted the NO and spoke with the owner about the violations outlined. Mainly, with tree clearance and sight distance issues. As well as the 8 foot hedge in the front yard. She was upset about that coming down to 4 feet. She wanted to see if she cut out sections, if that would solve the issue. I will check with Jorge. 8/28/2024 12:00 AM Request Comment N/O Nicholas Rush Post NO 8/28/2024 12:00 AM Request Comment In Progress Nicholas Rush 8/30/2024 12:00 AM Result Comment In Progress Nicholas Rush NEW VIOLATION: Complainant mentioned there was also light glare coming from the north side of the home. He sent me photos to show there is indeed light glare. I called the owner and explained this to her. She said she would make the necessary changes. 8/30/2024 12:00 AM Request Comment In Progress Nicholas Rush Tracking info 9/5/2024 12:00 AM Result Comment In Progress Nicholas Rush TRACKING INFO IN DOCS 9/5/2024 12:00 AM Request Comment In Progress Nicholas Rush Inspect to see if sight distance issues/clearance issues have been rectified. Then email owner about hedge and let her know the appeal is the proper avenue to contest. 9/11/2024 12:00 AM Result Comment In Progress Nicholas Rush UPDATE: The only violation that remains is the 8 foot hedge in the front yard. The owner is appealing that violation and it is currently in accela. I will follow that through and let the owner know. 9/11/2024 12:00 AM Result Comment In Progress Nicholas Rush APPEAL INITIATED: PLNAPP2024-01011. Owner has appealed the violation of the hedges in front yard >4 ft. Enforcement will be paused until the decision of the appeal. 9/25/2024 12:00 AM Request Comment In Progress Nicholas Rush Expiration of NO 9/25/2024 12:00 AM Case Comment Craig Weinheimer APPEAL: PLNAPP2024-01011 has been created by planning for this appeal of a decision. 9/25/2024 1:41 PM Request Comment In Progress Nicholas Rush Follow up on appeal. 10/4/2024 12:00 AM Result Comment In Progress Nicholas Rush UPDATE: Appeal is moving through the system. Will follow up in one month. 10/4/2024 12:00 AM Result Comment In Progress Nicholas Rush APPEAL SCHEDULED FOR JAN 16 11/12/2024 12:00 AM Request Comment In Progress Nicholas Rush Follow up on appeal. 11/12/2024 12:00 AM Request Scheduled Nicholas Rush Appeal scheduled for Jan 16 1/16/2025 12:00 AM 5. Vicinity Map and photos of the property 15 16 6. APPEAL OF A DECISION CONSULTATION Available prior tci submitting an application. For questions regarding the requirements, email us at zoning@slcgov.com. ADDRESS OF SUBJECT PROPERTY 1807 S 1900 E DECISION AP PEALED Zoning Notice & Order IMPORTANT INFORMATION SUBMISSION Submit your application on line through the Citizen Access Portal. Learn how to submit on line by following the step-by-step guide. NAME OF APPELLANT PHONE Susan Klinker 801-509-1972 MAILI NG ADDRESS _____ EMAIL 1807 S 1900 E suzklink@gmail.com REQUIRED FEES •$316 filing fee submitted within required appeal period. Additional required notice and hearing fees will be assessed after submission. APPELLANT'S INTEREST IN PROPERTY (*owner·sco11se11t1 ·equired) IF OTHER, PLEASE LIST e, Owner Architect* Contractor* Other* NAME OF PROPERTY OWNER (ifdifferentfromappellant) Susan Klinker MAILING ADDRESS 1807 S 1900 E SLC, UT 84108 PHONE EMAIL suzklink@gmail.com OFFICE USE CASE NUMBER BEING APPEALED RECEIVED BY APPEALED DECISION MADE BY Administration Historic"Landmark Commission Planning Commission DATE RECEIVED DISCLAIMER: PLEASE NOTE THAT ADDITIONAL INFORMATION MAY BE REQUIRED BY THE PROJECT PLANNER TO ENSURE ADEQUATE INFORMATION IS PROVIDED FOR STAFF ANALYSIS. ALL INFORMATION REQUIRED FOR STAFF ANALYSIS WILL BE COPIED AND MADE PUBLIC, INCLUDING PROFESSIONAL ARCHITECTURAL OR ENGINEERING DRAWINGS, FOR THE PURPOSES OF PUBLIC REVIEW BY ANY INTERESTED PARTY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . APPEAL OF A DECISION PROCESS 4 PLANNING DIVISION v7.1.24 17 Appeal of Administrative Decision Notice and Order of Zoning Violation Parcel number 16-16-413-006 Susan Klinker, 1807 S 1900 E, SLC, UT 84108 Reference Ordinance 21A.40.120 Hedge on North side of lot in front yard needs to come down to 4 feet. As the property owner, I intend to file a citizen-initiated petition to change the ordinance requiring that any fence or hedge in a front yard may not be taller than 4 ft. I am filing this appeal with a request to delay enforcement of the violation until the petition to change the ordinance is decided through appropriate channels. The 43 ft long front yard hedge in violation has existed at its current height for the duration of time I have owned the property, 15+ years, and I have images of it existing prior to that time. The hedge provides wonderful habitat for hundreds of birds and pollinators who nest and hide in the hedge year-round and serves as a significant landscape element providing oxygen and helping to filter our poor-quality urban air. The hedge shades a large length of concrete driveway on the neighboring property. Cutting the hedge will increase direct sun exposure on concrete and will intensify urban heat in the immediate vicinity of my home in summer. I have consulted with several landscapers who have advised that the hedge will likely die if cut to 4 feet because all green material on my side of the hedge is above 4 ft. Cutting the hedge provides no security, safety, or aesthetic benefit to my property or neighboring properties. Interpretations of what defines a hedge are arbitrary, and the 4 feet height rule does not apply to bushes, trees and other plant material, that are allowed in front yards at any height and any arrangement, regardless of how they may obstruct sight lines. Cutting the hedge to 4 ft will create a new unattractive condition at great expense. I will petition for ordinance language to be changed to limit continuous fence and hedge conditions in front yards to a 4 ft height within 10 ft of the sidewalk only and allowing for higher living green landscape treatments of any kind further back in the front yard and along side-yard lines. I believe this change will better serve the city’s long term goals of increasing urban wildlife habitat and ecosystem health, reducing urban heat island effects, and increase residents enjoyment of outdoor living areas on their property by allowing for a higher level of privacy in front yard spaces. 18 In 2024, I completed and occupied a detached ADU in my backyard. The current levels of privacy in my front yard have contributed to my ability as a homeowner to enjoy casual outdoor living space in my front yard, despite sacrificing my backyard space for ADU development. I believe that updating the existing ordinance language to encourage denser landscaping in front yards will give residents more flexibility in activating unused areas of their property as outdoor living spaces and serve to improve our urban ecosystems. View of Hedge from adjacent neighbor’s yard & driveway View of Hedge from my front yard, 43 ft total length. 19 Lack of new growth below 4 ft ht. Hedge image from 2008 at the time of current owner’s purchase of property. 20 Outdoor living areas in existing semi-private front yard.