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Ferre v. Salt Lake City

Court of Appeals of Utah

May 31, 2019

Jeremy Ferre, Appellant,
v.
Salt Lake City and Silverhawk Enterprises Inc., Appellees.

          Third District Court, Salt Lake Department The Honorable Sandra N. Peuler No. 170904485

          Scott O. Mercer and James Adam Knorr, Attorneys for Appellant

          Margaret D. Plane, Paul Nielson and Allison Elizabeth Parks, Attorneys for Appellee Salt Lake City

          Ryan B. Braithwaite and Daniel K. Brough, Attorneys for Appellee Silverhawk Enterprises Inc.

          Judge Diana Hagen authored this Opinion, in which Judges Kate Appleby and Ryan M. Harris concurred.

          OPINION

          HAGEN, JUDGE.

         ¶1 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."[1] 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 block face."

         ¶2 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.

         BACKGROUND

         ¶3 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.

         ¶4 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.[2] 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).

         ¶5 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.

         ¶6 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.[3] 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."

         ¶7 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 ...


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