District Court, Salt Lake Department The Honorable Sandra N.
Peuler No. 170904485
O. Mercer and James Adam Knorr, Attorneys for Appellant
Margaret D. Plane, Paul Nielson and Allison Elizabeth Parks,
Attorneys for Appellee Salt Lake City
B. Braithwaite and Daniel K. Brough, Attorneys for Appellee
Silverhawk Enterprises Inc.
Diana Hagen authored this Opinion, in which Judges Kate
Appleby and Ryan M. Harris concurred.
Homeowner Jeremy Ferre challenges a special exception granted
by the Salt Lake City Planning Commission (the Commission),
allowing the construction of a two-story house on a
neighboring lot that exceeded the Salt Lake City Code's
maximum height allowance. Ferre appealed the Commission's
decision to the Salt Lake City Land Use Appeals Hearing
Officer (the Hearing Officer), arguing, in part, that the
Commission's decision was illegal because the Commission
did not make the required finding that the proposed exception
was "in keeping with the development pattern of the
block face." The Hearing Officer upheld the
Commission's decision, and on judicial review, the
district court granted summary judgment in favor of Salt Lake
City, upholding the Commission's decision. Ferre now
appeals the district court's ruling, arguing that the
Commission's decision was illegal as a matter of law
because the property was not located on a "block
face" as defined by the ordinance and, therefore, could
not be "in keeping with the development pattern of the
We conclude that the requirement that the special exception
be consistent with the development pattern of the block face
is inapplicable where the property at issue is not located on
a block face. Instead, the Commission properly considered the
characteristics and existing structures in the neighborhood
to determine whether the additional height was in keeping
with the regulatory purpose of the zoning ordinances.
Accordingly, we affirm the district court's grant of
summary judgment in favor of Salt Lake City.
Silverhawk Enterprises Inc. began construction of a house on
the lot located directly south of Ferre's property. Both
lots are zoned in a "single- and two-family residential
district." See Salt Lake City, Utah, Code
§ 21A.24.110. The property at issue is "uniquely
situated" and accessed "by a long driveway and
multiple easements" from the "block face"
street on which Ferre's property is located. Silverhawk
obtained a construction permit to build a three-story
pitched-roof house, but after pouring the foundation and
beginning to frame the house, Silverhawk discovered that it
did not dig the foundation deep enough. As a consequence,
Silverhawk needed to modify the height of the house to comply
with the Salt Lake City Code. Silverhawk consulted the
relevant homeowners' association to determine whether it
would be better to seek a special exception for additional
height for a three-story, pitched-roof house or for
additional height for a two-story, flat-roof house.
"[A]t the request" of the homeowners'
association, "Silverhawk incorporated a flat roof
[construction plan] . . . on the rationale that a flat roof
would have less visual impact on [neighboring] views."
The revised construction plans proposed a maximum building
height of twenty-nine feet and eight inches, which is one
foot and eight inches more than permitted for a pitched-roof
house and nine feet and eight inches more than permitted for
a flat-roof house. See id. § 21A.24.110(D).
Silverhawk submitted a special exception application to the
Commission for the additional height.
The Salt Lake City Code provides exceptions to building
height restrictions when certain criteria are met. See
id. § 21A.52.060. The Commission's senior
planner reviewed the application and issued a report,
concluding that the relevant criteria were met and
recommending that the Commission approve the application
subject to certain conditions. The senior planner's report
provided that, although the house was "not directly
located on the 'block face, '" see id.
§ 21A.24.110(D)(6)(a), the request for "additional
building height complies with the regulatory intent of
Chapter 21A.24" of the Salt Lake City Code, which
ensures that the special exception is "compatible with
the existing scale and intensity of the neighborhood,"
see id. § 21A.24.110(A).
The Commission held a public hearing to allow surrounding
property owners to provide commentary and lodge objections to
the special exception application. At the hearing, Ferre, his
attorney, and his brother spoke and objected to the
application, arguing that the house would impair Ferre's
view and that the Commission should "enforce the
ordinance" that requires flat-roof buildings to not
exceed twenty feet in height.
Over Ferre's objections, the Commission granted the
special exception application subject to the senior
planner's conditions. Ferre appealed the Commission's
decision to the Hearing Officer and sought a stay of
construction. Relevant to this appeal, Ferre
"argued that there was insufficient evidence for [the
Commission] to find that the [special exception application]
met the requirement of being in keeping with the development
pattern on the block face."
The Hearing Officer disagreed, noting that "the
Commission entertained a discussion with [the senior planner]
regarding the development pattern of the block face and the
basis for the [senior planner's] finding of
compliance." The Hearing Officer upheld the
Commission's decision, concluding that the Commission
"had substantial evidence of the building design of the
neighborhood, the site and the relationship of the proposed
structure to its neighbors upon ...