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HomeMy WebLinkAboutHearing Officer's Decision - PLNZAD2025-00845SALT LAKE CITY LAND USE APPEALS HEARING OFFICER REQUEST FOR VARIANCE CASE NO. PLNZAD2025-00845 APPLICANT/PROPERTY OWNER: EVE SILVER HEARING HELD: DECEMBER 18, 2025 DECISION ISSUED: JANUARY 12, 2026 On December 18, 2025, a hearing was held on this matter. Eve Silver appeared as the Applicant. Kathrine Paskar, City Attorney, represented the City, Ailin Leon, Associate Planner, 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. Eve Silver is the owner of certain real property located at approximately 852 S West Temple, more particularly described as Salt Lake County Parcel ID No. 15-12-276-030-0000 (the “Subject Property”). The Subject Property is in the MU-5 Zone. 2. In approximately 2019 or 2020, the Applicant hired a contractor to install a 6-foot fence. The contractor did not obtain the necessary permits. At the time the fence was installed, 6- foot fences were allowed if they obtained a permit.1 3. The Applicant’s fence is located on the east side of the Subject Property and generally aligns with the two front façade lines of the two adjacent buildings. The fence is set back approximately 5 feet 6 inches from the sidewalk, the building is set back approximately 30 feet from the sidewalk. 1 Applicant requests a variance and accordingly the analysis in this memorandum decision is limited to whether the Applicant is entitled to a variance. However, during the oral argument, on numerous occasions Applicant argued in essence that the fence should be considered a legal nonconforming structure, and on that basis, should be allowed to remain. A request for a determination of whether the fence is a legal non-conforming structure is a separate analysis and is not the same as a request for a variance. Whether or not the fence is a legal nonconforming structure is not properly before the Hearing Officer at this time, nor has it been adequately briefed by the parties. Accordingly, this memorandum decision does not address whether the fence could remain as currently constructed as a legal non-conforming structure. CASE NO. PLNZAD2025-0000845 MEMORANDUM DECISION 2 4. The properties immediately adjacent to the Subject Property to the north and south are located approximately 4 feet from the sidewalk. Both neighboring buildings are taller than the structure on the Subject Property. 5. Other properties in the vicinity of the Subject Property, such as 840 S West Temple, are similarly situated to the Subject Property. For example, 840 S West Temple is also flanked by tall buildings and is set back from the sidewalk approximately the same distance as the building on the Subject Property. The neighboring buildings to 840 S West Temple are also approximately the same set back from the sidewalk as the buildings which neighbor the Subject Property. 6. The property located at 840 S West Temple has a four-foot fence on the east side of the property. CONCLUSIONS OF LAW 1. To obtain a variance, the applicant must meet all requirements in See Utah Code Ann. Section 10-9a-702 (3)2 and Salt Lake City Code Section 21A.18.060. Applicant has failed to meet each of the enumerated standards and a variance cannot properly be granted. 2. The Applicant bears the burden of demonstrating that the standards have been met and that the variance is justified. The Applicant has not met this burden. DISCUSSION To obtain a variance, an applicant has the burden of proving that all the conditions justifying a variance have been met. See Utah Code Ann. Section 10-9a-702 (3) and Salt Lake City Code Section 21A.18.060. Salt Lake City Code Section 21A.18.060 sets forth five standards, each of which must be established by the Applicant in order to qualify for a variance. Specifically, the Applicant must prove the following: 1. Literal enforcement of this title would cause an unreasonable hardship for the applicant that is not necessary to carry out the general purpose of [Title 21A]; 2. There are special circumstances attached to the property that do not generally apply to other properties in the same zoning district; 3. Granting the variance is essential to the enjoyment of a substantial property right possessed by other property in the same district; 4. The variance will not substantially affect the general plan of the city and will not be contrary to the public interest; and 5. The spirit of this title is observed and substantial justice done. 2 During the pendency of this application, certain sections of the Utah Land Use and Management Act were renumbered. This memorandum decisions uses the citations of sections before they were renumbered for consistency with the submission of the Parties. CASE NO. PLNZAD2025-0000845 MEMORANDUM DECISION 3 Salt Lake City Code § 21A.18.060.A. An applicant must establish all these standards. Accordingly, the failure to prove even one of the requirements precludes an applicant from qualifying for a variance. The Applicant is unable to establish all the required standards. 1. Applicant Has Not Established an Unreasonable Hardship The first standard Applicant must establish is that the literal enforcement of this title would cause an unreasonable hardship. The Applicant asserts safety and security concerns related to crime and trespass by transient and unhoused individuals onto and across the Subject Property if a 6-foot fence is not allowed. In determining whether enforcement of zoning requirements would cause unreasonable hardship, “the appeals hearing officer may not find an unreasonable hardship unless: 1. The alleged hardship is related to the size, shape or topography of the property for which the variance is sought; and 2. The alleged hardship comes from circumstances peculiar to the property, not from conditions that are general to the neighborhood.” Salt Lake City Code § 21A.18.060.B (emphasis added). Further, hardships which are self-imposed or economic in nature do not constitute an undue hardship. Salt Lake City Code § 21A.18.060.C. The Applicant fails to establish the criteria necessary for the alleged hardship to qualify for a variance. A. The Alleged Hardships Do Not Relate to the Size, Shape, or Topography of the Subject Property The Subject Property does not have unique characteristics that significantly differ from neighboring parcels. Indeed, the Subject Property is a similar size to neighboring parcels. The Subject Property is also not unique in shape. The Subject Property is rectangular. The Subject Property also does not have unique topography, there are not rivers, streams, cliffs, grading, or other topographical conditions which significantly differ from the surrounding parcels. Indeed, all parcels in the area are relatively flat. Additionally, other properties in the vicinity are also similarly flanked by taller buildings which are situated closer to the sidewalk. The safety and security concerns do not relate to the size, shape, or topography of the Subject Property. Applicant argues that the structures on the neighboring properties result in her property being used as a corridor for individuals between West Temple and Jefferson Street. This, however, is at best a tangential connection to the characteristics of the Subject Property. The issues of safety and security are general to the neighborhood and are not unique to the Subject Property. At least two other parcels are similarly situated. CASE NO. PLNZAD2025-0000845 MEMORANDUM DECISION 4 B. The Alleged Hardships Do Not Come from Circumstances Peculiar to The Subject Property, But Rather Arise from Conditions That Are General to the Neighborhood The alleged hardships are not related to the circumstances peculiar to the Subject Property but rather relate to the conditions that are general to the neighborhood. First, the hardship described by the Applicant relating to safety and crime are conditions general to the neighborhood. Applicant failed to establish how that hardship is unique to the Subject Property. Transient and unhoused individuals occupy numerous public and private locations throughout Salt Lake City and the areas surrounding the Subject Property. Additionally, Applicant provided no evidence to support that a 4-foot fence is less effective at deterring trespass than a 6-foot fence. 2. Applicant Did Not Established That Special Circumstances are Attached to the Property. The Second Standard requires that the Applicant establish that there are special circumstances which attach to the Subject Property that do not generally apply to other properties in the same zone. In determining whether there are special circumstances attached to the property … the appeals hearing officer may find that special circumstances exist only if: 1. The special circumstances relate to the alleged hardship; and 2. The special circumstances deprive the property owner of privileges granted to other properties in the same zoning district. Salt Lake City Code § 21A.18.060.D (emphasis added). Applicant has failed to establish any special circumstances relating to the Property which relate to the alleged hardships. Additionally, the applicant failed to establish that there were special circumstances which deprive the Applicant of the privileges granted to other properties in the General Commercial Zone. Specifically, as noted above, there are no special characteristics of the Subject Property which differ from its neighbors. It is of a similar size, shape, and topography as the surrounding properties. Additionally, as described by the City, other surrounding properties would be required to meet the same requirements related to the height of the fence. Further, at least one other property, 840 S West Temple, has a 4-foot fence. 3. Applicant Has Not Established That Granting the Variance Is Essential to The Enjoyment of a Substantial Property Right Possessed by Other Property in The Same District As noted above, other surrounding properties would be required to meet the same requirements related to the height of the fence, and one currently does. The Applicant has not shown that other properties have rights which the Applicant is deprived of due to the restrictions on fence height. CASE NO. PLNZAD2025-0000845 MEMORANDUM DECISION 5 As the Applicant has failed to meet at least two of the required standards and the failure to establish even one necessitates the denial of the request for a variance, the remaining standards are not addressed. DECISION For the foregoing reasons, the Applicant’s requests for a variance relating to the height of the fence is DENIED. This decision may be appealed to the Third District Court within 30 days of the date of this decision. Dated this 12th day of January 2026 /s/ Clayton H. Preece Clayton H. Preece Appeals Hearing Officer