Loading...
HomeMy WebLinkAboutHearing Officer's Decision - PLNAPP2025-00978SALT LAKE CITY LAND USE APPEALS HEARING OFFICER BUILDING PERMIT APPEAL CASE NO. PLNZAD2025-00978 APPELLANT: PETER FILLMORE, ON BEHALF OF OAK HILL GARDENS CONDOMINIUM ASSSOCIATION LANDOWNER: JOE AND JULIE COOLEY HEARING HELD: DECEMBER 18, 2025 DECISION ISSUED: JANUARY 7, 2026 On December 18, 2025, a hearing was held on this matter. Peter Fillmore appeared on behalf of Oak Hill Gardens Condominium Association1 (“Oak Hill”). The property owners Joe and Julie Cooley (collectively the “Landowner”) attended and were represented by their attorney, Steve Clayton. Mr. Fillmore and Mr. Cooley provided direct testimony. Kathrine Paskar, City Attorney, represented the City, Noah Elmore, appeared and gave testimony on behalf of Salt Lake City (the “City”). 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. Members of Oak Hill have properties in the vicinity of and immediately adjacent to the Landowner’s property located at 1072 S Bonneville Drive, Salt Lake City, Utah. 1 Salt Lake City’s Appeal form requires that “[i]f a Home Owner’s Association is the applicant then the representative/president must attach a notarized letter stating that they have notified the owners of the proposed application. A vote should be taken prior to the submittal and a statement of the outcome provided to the City along with the statement that the vote meets the requirements set forth in the CC&Rs.” A notarized statement was not provided by Oak Hill. The City stated that it processed the appeal based on additional submissions by the HOA. The Landowner during oral argument raised the issue of whether Oak Hill had standing. Pursuant to Salt Lake City Code Section 21A.12.040.D “Any person adversely affected by a final decision 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.” Salt Lake City Code Section 21A.16.030 provides that the appeal shall be filed using an application form provided by the zoning administrator. To be considered complete, the application must include all information required on the application … Incomplete applications will not be accepted.” Based on the plain language of the form and the lack of a notarized letter, Oak Hill’s appeal was not complete. However, as Oak Hill and its members are adversely affected by the final decision of the City, and question of whether this procedural defect by Oak Hills was fatal to the appeal or could be cured was not addressed in detail by the parties. The argument was not properly presented for decision, and I decline to rule on the issue of standing based on a failure to submit the notarized letter. CASE NO. PLNZAD2025-00978 MEMORANDUM DECISION 2 2. In September of 2024, the Landowner submitted an application for a building permit (BLD2024-07923) which included the following scope of work, “addition of a sport court, patio, stairs and a wall to separate the upper and lower yard.” 3. The Planning Division reviewed the building permit and found it to be in compliance with all applicable zoning standards in Title 21A. The City issued the building permit in September 2025. 4. Portions of the sport court lie within a public utility easement. The public utility easement is administered by the Department of Public Utilities. The building permit was reviewed and approved by the Department of Public Utilities. 5. Oak Hill is not a party to the public utility easement. 6. Oak Hill did not provide any admissible evidence from a qualified expert to support a finding that the sport court or its use for pickleball would create a noise violation. 7. The sport court consists of a concrete slab. 8. Retaining walls and other landscaping improvements, which may be necessary to allow for the construction of the concrete slab, are included in the site plan. 9. The concrete slab is at least five feet from the nearest lot line. The site plan shows that landscaping elements and retaining walls are within five feet of the nearest lot line. CONCLUSIONS OF LAW 1. Pursuant to Salt Lake City Code Section 21A.16.030.J, Oak Hill, as the appellant, has the burden of proving that the decision of the City is incorrect. 2. The standard of review for the appeal is de novo pursuant to Salt Lake City Code Section 21A.16.030.I.1. 3. As Oak Hill is not a party to the utility easement, it lacks standing to assert a violation of the public utility easement. 4. Salt Lake City Code does not require the City to deny a building permit based on an actual or hypothetical noise violation. 5. The sport court does not violate the required 5-foot setback in Salt Lake City Code Section 21A.36.020.B. 6. The other infrastructure surrounding the court, patio, landscaping, and retaining walls, are permitted encroachments pursuant to Salt Lake City Code Section 21A.36 7. The basketball hoop is an allowed obstruction within the setback pursuant to Salt Lake City Code Section 21A.36.020.B and is not subject to the 5-foot setback. CASE NO. PLNZAD2025-00978 MEMORANDUM DECISION 3 DECISION Appellant raises three issues on appeal: (1) The sport court violates a public utility easement, (2) the sport court will create noise pollution, and (3) the location of the sport court violates setback requirements. Each is addressed in turn. 1. The public utility easement is irrelevant to the building permit and Oak Hill lacks standing to assert any alleged violation of the public utility easement. Oak Hill’s failed to bring forth a legal basis to overturn the building permit based on the public utility easement. Salt Lake City Code does include noise violations a basis to deny a building permit. Additionally, Oak Hill conceded that it is not a party to the public utility easement. The public utility easement is held and administered by the Department of Public Utilities. Oak Hill failed to present any fact or argument which would grant it standing to enforce a violation of the public utility easement. Accordingly, to the extent the sport court encroaches on the public utility easement, Oak Hill lacks standing to assert such a violation. Additionally, I note that the Department of Public Utilities has reviewed and approved the building permit and its placement with the public utility easement. 2. Oak Hill failed to provide sufficient evidence that the noise pollution will occur or establish that noise pollution is a basis under which the City must deny a building permit. Oak Hill did not present any direct evidence that the sport court violates the applicable noise ordinances. At best, Oak Hill’s evidence supports that certain activities, such as pickleball, could under certain hypothetical circumstances violate the applicable noise ordinance. Such evidence, however, is entirely speculative and is not based on reliable expert testimony specifically applied to the facts and circumstances of this appeal. While the Utah Rules of Evidence are not strictly applied to administrative hearings, the Utah Rules of Evidence are nonetheless informative. Under Utah Rule of Evidence 701, “[i]f a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. As Oak Hill did not present an expert to testify, the opinions it offers must be based on the witnesses’ perceptions and may not be based on scientific, technical, or other specialized knowledge. The opinions presented by Oak Hill regarding the potential noise violation are not based on any witnesses’ actual perception of noise from the sport court at issue. To the extent Oak Hill referred to other scientific, technical, or other opinions requiring specialized knowledge, those statements were general in nature and were not specifically applied to the circumstances or the sport court at issue. Accordingly, Oak Hill failed to provide sufficient evidence to establish that a noise violation will occur. Further, Oak Hill fails to site any provision of Salt Lake City code which would require the City to deny the building permit based on a hypothetical or actual noise violation. As the City CASE NO. PLNZAD2025-00978 MEMORANDUM DECISION 4 noted, the Salt Lake Valley Health Department regulates noise control in Salt Lake City. See Salt Lake City Code Section 9.28.080. Accordingly, hypothetical noise violations are not a grounds upon which the City may deny a building permit and any actual noise violations which occur are enforced by the Salt Lake Valley Health Department and would be subject to different proceedings. Oak Hill has failed to provide sufficient evidence that a noise violation will occur. Oak Hill has also failed to establish a legal basis which would allow the City, or the Appeals Hearing Officer, to deny the building permit based on a hypothetical noise violation. Accordingly, this argument is also rejected. 3. The sport court does not violate required setbacks. While a “sport court” or “game court” are not specifically defined in Salt Lake City Code, the City does present a compelling argument that the sport court in question is a “game court” based on the commonly accepted definition of “court” as “a quadrangular space walled or marked off for playing one of various games with a ball (such as tennis, handball, or basketball).” Based on the testimony presented the concrete slab, “sport court,” will be used for, among other things, pickleball and basketball. Accordingly, the “sport court” constitutes a “game court” for the purposes of Salt Lake City Code. Pursuant to Salt Lake City Code Section 21A.36.020.B, “[s]wimming pools (measured to the water line), game courts, and similar uses” must be “located at least 5 feet from all lot lines.” Both the images and testimony provided by Oak Hill support that the concrete slab of the sport court is at least 5 feet from the nearest lot line. Additionally, the plan excerpts presented by the City, as confirmed by the Landowner, also establish that the concrete slab of the sport court is at least 5 feet from the nearest lot line. Oak Hill argues that without retaining walls, grading, and other infrastructure the sport court could not be built, therefore those components must also be part of the “sport court.” The testimony presented during the hearing established that retaining walls and landscaping elements were within 5 feet of the nearest lot line. Pursuant to Salt Lake City Code section 21A.36.020.B, however, the patio, landscaping and retaining wall infrastructure are all permitted encroachments and no setback are associated with them. As the Salt Lake City Code separates such components from “game courts” and Oak Hill provides no compelling argument, statute, or provision of Salt Lake City Code which requires them to be treated as a single item or structure, I find that the sport court/concrete slab is separate from the patio, landscaping, and retaining wall. Accordingly, the sport court complies with setback requirements. Additionally, the patio, landscaping, and retaining wall do not have a required setback and therefore cannot be in violation of the City’s setback requirements. Oak Hill has failed to provide sufficient evidence that a that the sport court encroaches or violates Salt Lake City’s setback requirements. Accordingly, this argument is also rejected. CASE NO. PLNZAD2025-00978 MEMORANDUM DECISION 5 DECISION For the foregoing reasons, the decision of the City issuing Building Permit BLD2024- 07923 is Affirmed and Building Permit BLD2024-07923 is Upheld. This decision may be appealed to the Third District Court within 30 days of the date of this decision. Dated this 7th day of January 2026 /s/ Clayton H. Preece Clayton H. Preece Appeals Hearing Officer