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Ombudsman Response 07.13.22PARK CITY OBJECTION TO TIMING AND RESPONSE 7/13/22 MAY 20, 2022 ADVISORY OPINION REQUEST: MARK NORRIS, JOE PETERCHAK, JEANNE PICERNE (“Neighbors”) PROPERTY ADDRESS: 741 ROSSIE HILL DRIVE, PARK CITY, UTAH 84060 OWNERS: LILAC HILL EAST LLC Background- See Board of Adjustment [“BOA”] Staff Report dated 5/17/22 for a complete history of the five years of the permitting leading up to this Historic District Design Review approval of an addition and rear garage to a historic single-family structure. The sole question of the BOA appeal was whether the application of the Park City Design Guidelines for Historic Districts and Historic Sites [“Guidelines”] mandates that the design incorporates an additional 36-inch transitional element length versus the 8-foot-2.5-inch transition as approved by the original land use authority [Planning Director Approval 3/14/22]. No additional Building Code, Land Management Code, or Zoning issues are raised. 1. Ombudsman Opinion Request not filed timely. The City Board of Adjustment made a final decision and approved written findings on this matter denying the appeal at its meeting on the evening of Tuesday, May 17, 2022. The Neighbors were represented by counsel at the hearing and no changes were made to the written decision which was published in the packet prior to adoption. This is not a case where a board preliminarily voted on a matter and directed staff to separately prepare findings/order for subsequent approval by the board or chair. The written decision was approved May 17. The Neighbors apparently filed this request on May 18, 2022, the day after the approval, amounting to making the request during the time it took the chairperson to walk from the dais to the staff to perform the ministerial act of e-mailing the signed “Notice of Board of Adjustment Action.” [“Notice”] The filing form the Neighbors’ attorney marked states: “An appeals authority has announced a final decision, but has not reduced it to writing.” This is not true- the decision was in writing and before the Board at the May 17 hearing. The written findings, conclusions and order were adopted by motion without edits. See attached 5/17/22 Meeting Minutes, Pages 27-29. Park City separately defines “Final Action” for purposes of computing appeal deadlines, addressing the reality that votes usually occur after the end of a business day in most cases. However, the decision was final as of the final vote approving the written decision on May 17. Park City code does not separately define “final decision” as Neighbors’ attorney alleges. Is the Neighbors’ attorney arguing that there is a functional difference between filing their request at 12:01am, 8am, 1pm or 5pm the day after the decision due to whenever a staff person hits send on an email with the Notice? Such an interpretation violates the statute’s intent. Utah Code § 13-43-205(b)(i) requires the opinion request to be filed “before” the final decision which even under Neighbors’ attorney’s argument “takes effect on the date” of the final decision, meaning before May 18 under Neighbors’ argument, not a different time on the same day. UCA § 10-9a-708 (emphasis added). The City also doesn’t document the exact time of signature so the City can’t address if the Neighbor’s filing was prior to when the Chairperson ministerially executed the Notice. If she signed the Notice before leaving the building, but staff emailed the Notice the next workday does that really move the deadline? Further, there is no basis for the BOA to reconsider at that point. Allowing such a late request undermines any possible intent behind the whole Ombudsman statute. What if the request is filed during the meeting after the vote but before there is an adjournment where the chairperson signs and hands the parties the “Notice”? Park City urges a reasonable application of the state code deadline before final decision to find the Neighbors’ request untimely. Even if the Ombudsman agrees with Neighbors’ attorney to apply the exact time of delivery of the “Notice” as the basis of the deadline, it appears from the materials the City received from the Ombudsman’s Office that the Neighbors’ initial opinion request (which the City was not provided) was incomplete and in fact not complete until supplemented on Wednesday, May 18, 2022 at 1:36 PM, (according to the request materials from the Ombudsman Office). This was after the BOA Notice was sent at 1:11 PM on May 18. See attached Cover Email 1:11pm 5/18/22. Finally, there is no further decision process in which the Ombudsman could advise the City. The Building Permit was issued in early June with no appeal filed on the permit within the applicable deadline, so the City has no basis to pursue revocation under Fox v. Park City. The Neighbors have since filed an appeal of the BOA decision in Third District Court, as has the Owner [contesting BOA failure to dismiss for lack of jurisdiction based on Neighbors missing 10-day appeal deadline]. Therefore, the matter will be resolved in court. See: Mark Norris; Joseph Peterchak; Jeanne Picern v. PCMC filed 6/17/2022 Case #220500189 Lilac Hill East Development Inc. v.Park City BOA filed 6/17/2022 Case #220500192 2. The Land Use and Appeal Authorities Properly Applied Park City Design Guidelines in Approving the Application If the Ombudsman’s Office chooses to address the merits, they should be denied. The Neighbors make no allegation regarding the mandatory application of allowed land uses, process, or applicable zoning restrictions otherwise in the Park City Land Management Code. The Neighbors simply disagree with a particular application of “Design Guidelines” to the property and an administrative determination that the addition wasn’t “large.” The term is not defined in the Guidelines, and the lack of a quantitative method of measurement is intentional. The Staff Report and written findings demonstrate the reasonable determinations of the findings and conclusions. The application of the Design Guidelines is mandatory, but its terms are by nature flexible to avoid cookie cutter application. The standard was met. As stated in the Design Guidelines introduction: 15-13-1 Purpose And Policy The Design Guidelines for Park City’s Historic Districts and Historic Sites (referred to throughout the document as the “Design Guidelines”) is intended to fulfill the policy directives provided in the General Plan and the Land Management Code. The goal of the Design Guidelines is to meet the needs of various interests in the community by providing guidance in determining the suitability and architectural compatibility of proposed projects, while at the same time allowing for reasonable changes to individual buildings to meet current needs. For property owners, design professionals, and contractors, it provides guidance in planning projects sympathetic to the unique architectural and cultural qualities of Park City. For the Planning Department staff and the Historic Preservation Board, it offers a framework for evaluating proposed projects to ensure that decisions are not arbitrary or based on personal taste. Finally, it affords residents the benefit of knowing what to expect when a project is proposed in their neighborhood. The Design Guidelines are not intended to be used as a technical manual for rehabilitating or building a structure, nor are they an instruction booklet for completing the Historic District/Site Design Review Application. Instead, they provide applicants, staff, and the Historic Preservation Board with a foundation for making decisions and a framework for ensuring consistent procedures and fair deliberations. [emphasis added] Allegations regarding whether the addition was “uphill” separately triggering the additional transitional distance was in a provision of the Guidelines which contained a typographic error/incomplete sentence. The Owner argued and the BOA agreed that the ambiguity, admitted by the Neighbors, should be construed in favor of the applicant as required by state law. In conclusion, the Ombudsman Opinion Request was not filed timely. Further, the land use authority and appeal authority properly applied the plain language of the applicable Design Guidelines based upon substantial evidence in the record. Since the Design Guidelines at issue did not plainly restrict a land use application, the land use authority interpreted and applied the land use regulation to favor the land use application. Respectfully, Mark D Harrington, Senior City Attorney Attachments: Staff Report 5/17/22 via link: https://d3n9y02raazwpg.cloudfront.net/parkcity/3b0240d8-bb38-11ec-a5da-0050569183fa-a3c3bd95- 7a61-46ba-b25a-d50b1b86ddcf-1652472562.pdf Cover Email 1:11pm 5/18/22 and Notice of Final Action [via email attachment] Meeting Minutes of 5/17/22; Approved 07/12/22 [via email attachment]