okay we are now recording so tim you can go ahead and start the meeting okay uh sounds like we're on the record uh this is a matter of the hubert residence variance application um my name is tim pack i'm the draper city uh appeal authority um with the presenters or people who plan on presenting to make your appearance? Jeremy Cook, on behalf of the applicant. Spencer Duchesne, on behalf of the City. Jennifer Dostromski. Welcome. Oh, sorry, Jennifer, go ahead. No, I'm just here to answer any basic questions about the application and that kind of thing, but yeah. Do you have video capabilities? I do. I'm actually in the City Council chambers. I joined via Zoom on my phone because I had difficulty hearing you, Mr. Pack. So I'm not going to be appearing on video. I'm here in the City Council chambers with Jen and everybody in the public hearing. Okay. Can you hear me okay now? Yeah, I can hear you both. through the Zoom meeting and in council chambers. There's a bit of an echo in here and we turned the volume down a little bit and that's helped. Okay. It sounds like we have about an hour set aside for this matter. My proposal is that the applicant present anything they want to present first with a response by the city, Mr. Duchesne, and then some rebuttal if necessary, Mr. Cook. How does that format sound to everybody? That's great with me. Yeah, that's customary for us. So we're okay with that. Okay. Mr. Cook, how much time do you think you need to make your initial presentation? Probably 15, 20 minutes at the most. Okay. Well, proceed. Okay. So, well, do you want to make sure you have all the documents like you stated, or do we want to go through what we have? Sure. Well, we can start. That's probably a good idea. So from your side, I have in front of me a document called the combined application, which is 17 pages. I have A hearing brief from Mr. Duchesne with exhibits. That document is 42 pages long. I have some other documents in front of me, and I'm not sure if they're just Jennifer, which party or who they were submitted by. A subdivision plat, a building permit activity report, stop work order. a building permit issued, building permit plans issued, and then lot 405, Peasant Hills administrative interpretation. Yes, those documents are just the city's record documents, so the, you know, copy of the building permit, that kind of thing. Okay. And I do have, you know, I have a PowerPoint here where I've put just a couple of the documents, the recorded plot, the applicants documents, not the survey, but the schematic showing the setback and everything, the approved building permit site plan. So you can kind of see the differences between the two and then some aerials as well. I believe this is the aerial, hold on. This is the aerial that was used in the noticing that went out. So I've got those to reference, but I also have all of the documents that were emailed out to you guys. The record, this applicant submittal, the city's brief. I have all of those documents that I can open up at your request. Okay, okay. And it sounds like this PowerPoint will probably be made part of the record. And, you know, maybe after Mr. Cook gives his initial presentation, Jennifer or Mr. Duchesne can... walk us through the PowerPoint if you wish. Is there any, go ahead. Jennifer, is it possible to give me the ability to share my screen? Yeah, we can do that. Okay. I'm just going to use that same map. The map that you have up right now. I think it's a Good, Ariel. I just want to be able to point out a couple of things. It's easier if I can point them out and you guys can see where my pointer is. All right. Okay, Mr. Cook, you may proceed. All right. So the first thing I want to do is just kind of go through kind of the basics of this application, kind of what makes this property unique and what we believe supports the variance application in this process. Kind of generally speaking and kind of touch on each of the criteria for the variance application. So I'm going to go ahead and share this just. You guys see that? The map. OK, OK so. This is obviously the lot that we're we're talking about here that we're requesting the variance for. And there's a number of things that make this lot fairly unique. First of all, if you look at this, you'll notice that this is the only lot in basically this entire neighborhood that isn't already built on. And there's a reason for that, which is that this lot has a lot of unique features that make it difficult to build on, which has kind of limited the ability you know, in the past to build on this or at least has made it so that this is one of the last ones that get built on. So a couple of the big features when this lot, when we first or the applicant first proposed building on this lot, the city initially came back and said, well, this is a flag lot. And so because this is a flag lot, we've got to have different setback criteria and you got to meet these different setbacks. And so we went through that with the city. And eventually, the city issued a decision saying, no, the setback should be 10 feet on the plat. But I think that that's indicative of the fact that this is a very unique lot. I mean, the city's initial argument is this is actually such a unique lot that it should be classified as a flag lot. And it is. It's a very unique lot because of the way that it sits pretty far back into this cul-de-sac. We don't have frontage right up here by these houses. It's back here. The other features that make this lot really unique is there's an easement that runs both here and here on this lot. This is a 50-foot easement, and this is a 75-foot easement. So when you look at this lot, it appears to be a fairly big lot in itself. But in fact, because this area up in front of it in what I'd classify as kind of driveway area. You really don't want to put a house or structure in here because you're going to be really close to your neighbors. So you want to obviously build as far back on the lot as you can. But because you have these easements on the backside of the lot and on the side of the lot, you have constraints that make this lot really unique to build on. So, you know, we start with that. Mr. Cook, can I interrupt you? So what are these, tell me about these easements. What are they for? Are they limited to this property? Do they extend onto other properties? This, there's an easement that extends this way along here that is a 50-foot easement that is, this is Highland Drive, right? I believe it's Highland Drive that comes through here. And there's an easement here for the possible expansion of that road at some point. Again, we're just looking at our variance is just right here. But there is an easement here. And then this, you can see kind of this area back through here is a ravine, all back through here. So there's an open space easement that runs back through here to keep this ravine area open. But again, you do have neighbors that have put a lot of improvements, swimming pools, tennis courts, other improvements into this easement. But the combination of those easements, I don't think, you know, there's many of these lots that have the combination of easements on both sides of them that limit this in addition to also being what, you know, the city, you know, originally thought was a flag lot and which I think we'll all agree is kind of uniquely shaped lot. One more question. So the easement that runs in the ravine, what type of easement is that and what's the purpose of that easement? It's an open space easement shown on the plat. So I'm assuming the intent of that easement is just to maintain open space through that ravine. Okay, proceed. So in designing this house, The applicant looked at this and there's a couple of things that they tried to accomplish designing this house. One is to put this area right through here is the garage structure. So there's a garage and then on top of the garage, there's a bedroom. But there's no windows on the bedroom that face this way. And what this creates is some separation between these houses. really, you know, kind of down here where we are requesting a variance. You don't have a situation where you have your normal, you know, normal houses, say like these two houses. You guys can see where my pointer is right on here. Okay. Just want to make sure. So these two houses would be your normal, you know, 10 foot setback, 10 foot setback. and you're gonna have the house paralleling all along here. In this case, what we have is a house where the garage is facing here. So we're not gonna have a living room facing into a living room. And so that was one of the design features of this house because the neighbor of this property owner is an acquaintance of theirs and they wanted to make sure that this was designed in a way that made sense and benefited, you know, everybody involved. You know, the house was set back, so you maximize the distance between this house and this house. So there's some unique design features in the house itself that make it kind of a little different. Then on top of that, and I think this is really one of the key reasons that the variance in this situation makes sense, is that If you're to line up the house straight across here, like you'd have on normal houses, and you put that back 10 feet, you have a flat facade 10 feet back. What the variance is asking for is to allow this corner of the house to encroach on the 10 foot setback. And what we're asking for is 2.8 feet encroachment on the corner. But then by angling this, you actually you can see the distance between this house and this house becomes fairly significant. You know, as you as you go just immediately away from this quarter, you angle this way and angle this way. And that creates a situation where the houses, you know, have separation. So we have a situation here where we're not getting, you know, this house, if you were to push it really close in this house, if you were to push it really close, you'd have this long, uh, long span between the houses where the houses are, are close here. Even granting the variance actually creates a situation where you have less of the house that's really close because a little of the corner back here is closer, but the majority of it is not as close. So that's a benefit to the property owner. Can I ask another quick question? Sure. So it's undisputed that the setback is 10 feet, right? Okay. And currently, how many feet from the property line is that building path? The variance that we're asking for, it would be 7.8 feet. All right, 7.2 feet from the property line at the closest corner to the property line of this house. And if we go to a different, in our packet, we have an exhibit that shows this clearly. But basically, the current building pad as built is 7.5 feet from the property line. Is that right? Well, there. One corner of it. One corner of it. The variance that we're asking for on that corner is 7. And if we. if i can do it yeah do you understand my question how many feet from the property line is the closest part of the building path can i switch to this one and show you yep yeah yeah um so this is uh let's see all right it's blocking it so i can't move my cursor so this is what we're requesting So this is the schematic of the variance that we'd be requesting, which is the closest point between the property line and the corner of the house would be 7.2 feet. And then, of course, the house would angle away, and this house would angle away. So you'd have one kind of corner right here that is 2.8 feet less than the setback. And then again, the rest of the houses on this situation would not be as close as other houses if you had just a full 10 foot setback. And by angling it this way, again, these kind of increase out of the setback so that we actually maximize the distance out of the setback. And also by angling it, you don't create a flat facade here, but you create an angled facade, which you know, gives these houses the appearance of being further apart. So even though this is, you know, agreeable that this is definitely encroaching into the 10-foot setback, it's, you know, it's not just flat encroachment the whole way across. So let me understand this. So it's 7.2 feet, a proposed 7.2-foot encroachment if that proposed boundary line is is completed, right? Correct. And that proposed boundary line as of today, has that been completed between these properties? The property owners have agreed to it, but the city asked us to go through this variance process first before we did that. So this property owner is in agreement. And that's going to be my next point on this, is this is an extremely unique variance. And I've been doing this for almost 20 years. I've been a city attorney for 10 years. I've seen very few variance requests where the neighboring property owner is, when you're asking for a setback reduction, the neighboring property owner favors a setback reduction. And again, that's partly because these property owners have attempted, this property owner, both of them, have attempted to create a design that works for both of them. And And because of that, and there's a note in the packet from this property owner saying that they support this variance application, they'd prefer to have the variance application and move forward with the home as requested in the variance application. One of the other things that obviously makes this really unique is you can see just generally speaking, no one else except for these two property owners theoretically would ever be able to see this. We're asking for 2.8 feet, which is barely more than my shoulder width wide, back behind the corner of this house. And then you have this huge area here and then a major road coming here. So this is not a situation where this is a variance application that's going to affect anybody other than these two property owners. And you have a situation where this property owner is not only consenting to the variance, but in favor of the variance application. And again, part of this is because, you know, the applicants have worked together to try to make this kind of a win-win situation and create a house that these people like and are comfortable with. And so that creates a situation unlike, I would say, almost any other variance application where it's a variance that affects basically two property owners. It can't be really seen by anybody else. And you have two property owners that are both supporting the variance application. The next thing that I want to point out is, let's see, I think. So this is the one before this. So this is a survey that has a lot And we didn't go out and survey every house in this neighborhood. I'm going to point out in a second a couple of these houses. But the survey does show these two neighboring houses. So if you look at this house, which is here, the setback, the side yard setback from this house to the east and the property line on this is eight feet. Um, and the house to the south is 9 1⁄2 feet. So both of the houses, both of the neighboring property owners, um, which, you know, again, this property owner, the house to the south would be the only one that's, you know, impacted at all by the variance that we're requesting. But both of these properties on this side, um, do not meet the 10-foot setback requirements. So we have a situation where we already have both of the neighboring properties not meeting this. But again, the way that this variance in this situation would actually pull this corner of this house again further away from this property owner, because by kind of angling it a little and having this corner kind of creep into the 10 foot setback right here, it pulled this part of the house a little further away. So it creates even more separation from this house. So again, this is We're asking for a variance that's not only beneficial to this homeowner, but we think beneficial to this homeowner by pulling it away. There's also some trees that they're trying to preserve here. That was part of the reason. I have another question for you, Mr. Cook. So my review is kind of limited to those five kind of factors or requirements in the code. And I get it, it looks like there's other properties that may be not complying with that side yard setback. That fact, which factor or which element is that relevant to in my analysis under the code? Yeah, and again, that's kind of why I want to get the background and go through, because I know we had to look at each of those factors, and I want to kind of get where we all have the questions and kind of the... the groundwork way to go and then start looking at those factors. Okay. So get there when you need to then. Yeah. So again, this is it. I want to go back real quickly if I can. Get the right one here. So again, this is the map that we're looking at that was in their spreadsheet. So we have, again, you have nine and a half feet here, eight feet here. But again, if you look at other houses in the neighborhood, and we didn't go do a survey of these other houses, but there's a number of other houses on this same street. This house right here you can see almost certainly doesn't meet the 10-foot setback. This house almost certainly doesn't meet the 10-foot setback. So you have other houses that have the same kind of angled configuration to try to maximize these lots because we, you know, unlike a lot of neighborhoods where you have straight roads and uniform lots, these are very curved roads, very unique lots. So here and here where you have kind of your standard two lots, you know, you have parallel on the lot lines, all these other houses where you have unique lots, A lot of them, you know, are, you know, we know these two houses are encroaching into the 10 foot easement. And certainly, you know, just based on the aerial views, you can see it appears that a number of these other houses where you have kind of the odd shaped lots like we have in this area do encroach into there, into the side yard setbacks. And again, a lot of times in situations like ours where the encroachment, probably is beneficial to both lots because it creates a situation where the houses are angled a little to create not this flat, just 10 feet along the side yard setbacks. So with that in mind, I think then we need to turn and say, OK, if we're looking at this, it sure seems to make sense. But what are the criteria? So the first criteria is literal enforcement of the ordinance would cause unreasonable hardship for the applicant that's not necessary to carry out the general purpose of the land use ordinance. And again, I think if you look at this, if you focus on what is the general purpose of the land use ordinance first, the general purpose of setbacks is to assure that properties aren't built so close to each other that you have issues with people being right on top of each other. And certainly, 10-foot setbacks are not the smallest setbacks. A lot of times, I've seen 5 foot on one side, 10 foot on the other, or even 5 foot on each side. 10 foot are not huge setbacks, but are not tiny. But here, again, I think as far as the general purpose of the land use ordinance, where you have property owners that are saying, yes, we want this, we want we want to do this because we think as property owners, especially where you have a house that's already built, coming in and saying, we think this is compatible. We want this. We think this is the best configuration. Certainly, I think that that is compatible with the general purpose of setbacks. And again, particularly here where we're angling the house to try to not have the full side of the house 7.8 feet or 7.2 feet away, but, you know, curve it out. So it creates more of a variation as you get further away. And then as far as the hardship, you know, this is a unique lot. It would be a hardship on them if they're not able to design the lot in the house in a way that maximizes what is an otherwise unique lot. And again, it's, you know, it wouldn't be absolutely impossible to do it the other way, but it would be a hardship because you're imposing something on a lot owner and say, you had to build a certain way just to meet these setbacks, even though there's a better way and a way that your neighbors who are the only ones that are impacted by this are agreeable to. So we believe that that does meet the hardship requirement and certainly it doesn't, It doesn't violate the general purpose of land use ordinance. I might interrupt you there. So I understand that there was an original building permit that was issued, and that original building permit complied with the existing setbacks. Is that right? It did, yep. Did that have the same... Was that a different square footage than the current one that's been built? No, it was the same square footage. But when they built this, they ended up angling it a little bit for a couple reasons. One is to save some trees. One is it was a mistake. And, you know, we're not disagreeing with that. I mean, certainly, you know, there's there's the argument to say, this is going to be, you know, really expensive to pull out this foundation for three feet, but we're not making that argument. And we want to say, you know, we certainly want to articulate that we acknowledge that this was built. We acknowledge that it would be really expensive, but that's not part of our argument. Our argument is that this should be a variance that is granted just based on the fact that it makes sense, not based on the fact that we're going to have to rip down this foundation, but based on the fact that this is a variance that makes sense. And again, it would be a hardship to not allow them to vary this slightly in a way that is compatible on the lot and allows them to get the best configuration for the house. And I guess really the way I think about this is we are at the point where we're at. We can't deny that. But if we're coming in prior to the foundation being poured and saying, we want this variance to alter this slightly and do this. And this is the reasons that we believe that we should get this variance and the neighboring property owners in favor of it. We think that we would be granted the variance at that point. We think because we're not relying on the fact that we had to pull this down, but simply relying on the fact that this variance would have been granted anyway, that there's no reason at this point not to grant the variance. My other question to you on that is, would it be difficult or how difficult would it be to correct the mistake that you mentioned and build the house the way or in accordance with the original building permit that was issued? Why isn't that possible? It's not impossible to do that. It's I mean, obviously, you'd have to tear out the entire foundation of this house, which would be a massively significant expense and start over. But again, we know that you can't get a variance based on your own actions or economic loss. I mean, practically speaking, yes, that's a really good reason. As far as the criteria go, we recognize that that can't be one of our basis for granting this variance. And so moving this back and doing it wouldn't be impossible. And it certainly wouldn't have been impossible to do it at the first place. But again, I think the argument is if you go back and you say, would this variance have been granted had we come in and asked for the variance beforehand, before making this mistake? I think the answer is we hope, yes, the variance would have been granted because it makes sense and it meets all the criteria. to grant a fairly minor variance on a side yard setback when you have property owners that are in agreement. And because of that, we believe that the variance should be granted irregardless of where we're at at this point. And so if you could articulate for me maybe one more time, what exactly is the unreasonable hardship? We believe the unreasonable hardship is the fact that you have a a configuration of the lot that makes more sense based on a very unique lock configuration. It makes more sense to build it in this configuration and that requiring the lot owner to configure it differently simply to meet the setbacks would be an unreasonable hardship. Why does it make more sense to do it to situate the lot the way I see it on the screen versus the way it was originally issued in the building permit? You're saying it makes more sense. Why? Well, it makes more sense because a number of reasons. One is, again, because you get a pullback. Instead of having a flat surface here that these people are looking into and create a flat, uniform line, 10 feet back across this whole property boundary. Now you have this angle, so you actually create more separation for the majority of the house than you'd have otherwise, which we believe is a benefit. We get more separation from this house to this house, because if you angled this, you'd pull this forward. And again, part of this is These are real. Part of the reason this is a really hard lot to build on is because you have these big slopes back here and here into these. This slopes way down to this road. This slopes way down to this ravine. So this was a slightly better configuration in order to allow this foundation to be put in and to deal with some of these slopes and some of these other features that exist on the lot. So again, we believe that forcing the property owner to do a configuration that does not maximize the lot. And again, I mean, I will concede that have these people been opposed to this and come back and say, no, we believe we want it done the other way. We don't want this house. We want something different. We don't want them set to do the setbacks. I think we'd have a different situation where you have a lot owner The adjacent lot owner and the only lot owner that is at all impacted by this variance application, submitting a letter in support of the variance application, we think that that supports, again, this finding that there is an unreasonable hardship in this situation. With the second criteria, there are special circumstances attached to the property that do not generally apply to other properties in the same zone. Again, we do believe that there are special circumstances. The fact that this was originally deemed a flag lot, it has these unique easements along two sides of the lot that create a fairly small building envelope. It has very steep slopes going down this way and this way that create a very tight building envelope to try to get a size of the house that's compatible with other houses in this neighborhood. So we do believe that there are special circumstances attached to property. Granting the variance is essential to enjoy substantial property rights. Again, we believe it's substantial property rights in the same zone. Again, we believe this is where having these other properties that are not compatible with the side yard setbacks either. is we're basically only a couple inches further closer on this one than this property owner is on this side. This property owner, the way this house was built, didn't meet the side yard setbacks either. So we think where the two neighboring property owners are the only ones impacted and neither of them meet it, that this is essential to an enjoyment of a property right possessed by these other people, which is basically to try to build a house that fits well in this lot and creates a situation that is best for all the neighbors. The variance will not substantially affect the general plan and will not be contrary to the public interest. Again, I think as far as the public interest argument goes, this is certainly not contrary to the public interest. where you have a variance that is requested that will not be visible to any other property owners except for the neighboring property owner here, potentially this property owner, but probably not since they have a bunch of trees. So the only one who would ever know about or would ever even recognize that this variance even exists would be this property owner who is, again, in support of the variance application So certainly we did not believe that it's contrary to the general plan or the public interest. And again, I think the fifth criteria, I think, in our mind is really the biggest one, which is that the spirit of the land use ordinance and substantial justice done. Again, in this situation, we believe that this is in the spirit of land use ordinance. Side yard setbacks are intended to protect property owners, to create some division between lots. In this case, we more than have that. We have one, I guess, light pinch point on the corner of the lot here, but then we have substantial separation between the homes. We have a house that was designed with a garage and a bedroom, but no windows on this side. from the bedroom so that they're, you know, even though you're slightly closer, you don't have a situation where you're staring into someone's kitchen window where, you know, there's going to be conflict between these two homes. There's, you know, there's going to be almost no conflict because of the fact that this is a garage and a bedroom without windows on this side. So these people, again, have more privacy, I think I'd argue substantially more privacy than probably these homes down here. And most houses, I mean, I have 10 feet setback from my neighbors, but my kitchen looks into their kitchen. And that's a totally different situation than we have here. So I think the spirit of the land use ordinance is to try to create separation between houses, make it so people have room between their houses, Clearly, I think that that is done here. And I think, again, substantial justice is where we have property owners in agreement and are requesting the property, the variance, and where we have other properties in the area that essentially did the exact same thing where, you know, on unique lots, try to angle the houses and oftentimes, as in this lot and some of these other lots, you know, became very close, if not within this lot. This lot, again, all these lots where we have unique lots, they are right up to our encroaching. In this case, in this case, we know they're encroaching, but right up to our encroaching on that side yard setback in order to create a better configuration for the property owner and for the neighboring property owners as well. So that's all I have, unless you have any questions. Yeah, so can I follow up on my other question? So the fact that there's some other properties on this street where it looks like there's some encroachments of the 10-foot setback on side yards, you're saying that fact is relevant to the third element that granting the variance is essential to the enjoyment of a substantial property right possessed by other property in the same zone? Is that right? Yeah, I think it's probably three and five, both that it's substantial property rights by properties in the same zone and substantial justice will be done by allowing the variance to move forward in the case again. And maybe one last thing I'll point out, I apologize, is just in the city's brief, they rely pretty extensively on the spec case. And again, I think the Speck case is a really good example of a situation where you had property owners that were in disagreement about the variance. So the Speck case involved a claim brought by the neighboring property owner, not by the city. And again, I think that that's a really important distinction. And one is here we have not only an applicant that's requesting it, but the only property owner that's even remotely impacted by this in favor of that. I think that that's a huge distinction between this and I think the spec case and I think probably any other variance application that I've seen that was denied by a city or even contested by a city. Thanks for that. My follow-up question on that. We talked about a substantial property right enjoyed by other properties in the same zone. What is a zone? What's the zone in this case? Is it the street? Is it the neighborhood? Is it the actual residential zone, the entire residential zone? What do you think the actual zone is? I think that that has to be on a case-by-case basis because I don't think it's defined. In this case, I would say certainly the zone is, I mean, a good indication of what the zone is is what the city had to notice. I think let's see here. So I mean, I think a good indication of, you know, when you're talking about a zone, this is certainly, you know, this is the area that the city was required to notice under state code as as the zone of kind of, I think, influence or property owners that would be impacted by this variance. So I think that this is a good indication. I think certainly all these houses along the street that are on the same street and in the same kind of linear configuration road are within that zone. So I would say it's, you know, the area substantially around it, but certainly the houses along the same street. And within that sort of, I guess, the zone of notice, the notice zone, how many violations of the side yard setback requirements did you observe in your, did you point out in your presentation? So we know at least the two property owners next to us are because we've done surveys. The property owners that certainly look like they are, there's this property owner here. There's this property owner here. This property owner is really close. And this property owner is probably really close. But again, I can't say for sure they are without going and getting a survey of their property. And I'm not really sure we have the right to, you know, go on to someone else's property without their permission to get that survey. I think just, you know, certainly these two properties appear to be violating it for sure. A couple of the other ones appear to be extremely close. And again, we know that the two adjacent properties are because we do have the survey of those two properties. Okay. And so the notice zone, is that, is this, this, this green shaded area? I mean, I would say every, yeah, the notice zone is this green shaded area. Okay. And this document you're showing us now, is that what, is this part of the, an exhibit to your? This is, this is the city. It was in the packets, the city it's labeled combined notice record. Okay. So the notice records in the, in the record. Okay. Got it. Yep. All right. Thanks, Mr. Cook. Thank you. Mr. Duchesne. Hi, thank you. Kind of where I want to start is, is. Sorry, Mr. Cook, can you un-share your screen? Yes, sorry, let me. Thanks, Jen. There we go. Can we start with the building permit please Jen? And sheet three I think is the one that shows what we want to look at and what we want to talk about. This represents the original building permit and the original building plan. We issued a permit because this met all of the setback requirements of the PUD. This is in the RA2 zone, but this is part of a planned development where the setback was changed from 12 feet, which is the setback requirement in the RA2 zone to 10 feet that we're talking about. So as you can see here, this meets the setbacks from the original property line unamended. And this is how we approved it, how it was actually dug and built. is rotated about 20 degrees counterclockwise. And that's what's put the building into the setbacks and also into the easements. Based off of that observation, we issued a stop work order under Draper City Municipal Code 91110, which requires that building permits, when we issue a building permit, it only authorizes the use arrangement and construction set forth in the approved plans. So since the building was built not in accordance with the approved plans, that's when we issued the stop work order. The change here is really self-imposed, and this is kind of where I want to get into our five elements that are required under 109A702. That first element being that literal enforcement of the ordinance would cause an unreasonable hardship for the applicant that is not necessary to carry out the general purpose of the land use ordinance. Under 109A702 2B2, it directs the appeals and variance hearing officer that the appeal authority may not find an unreasonable hardship if the hardship is self-imposed or economic. And in this case, it's very much self-imposed because we had a building permit and a plan that was approved and then it wasn't built in accordance with the approved building plan and permit. So that's a self-imposed hardship that we have. And it's also economic because if we're talking about digging up the foundation and then writing it and correcting it in accordance with the approved building plans, the only unreasonable hardship there is economic. And the statute defines that as not an unreasonable hardship. So that's our biggest point to make. On our second point, we look at the second element the second element says that there are special circumstances attached to the property that do not generally apply to other properties in the same zone now since this is part of a planned development we could reasonably interpret that to mean in the same planned development but if we want to talk about the ra2 zone we can do that too There are plenty of easements that encumber both the planned development and in the RA2 zone, similar kinds of open space easements that make building envelopes smaller. If we look at this particular lot, the other lots in the planned development are anywhere from 0.307 to 0.453 acres, whereas this one is 0.633 acres. And so the developer, when the plot was initially drawn out, had accounted for the fact that this would have a smaller building envelope based on the two easements and made this a bigger lot so that the building envelope could be approximate to some of the other smaller sized lots in the planned development. But what's important is that if we look at 109A702, hang on, I've got it here. 702C, it says that you may only find that special circumstances exist if the special circumstances relate to the hardship complained of. Now, if we've established that there's no hardship under the first element, then there aren't any special circumstances that could relate back to that first element. The statute forecloses the finding of an unreasonable hardship, and if there's no unreasonable hardship, we can't have the second element that's met When we're talking about all of these elements that are required under 109A702, the applicant bears the burden of proving that the variance is justified, and I don't necessarily think that the applicant has done that here. If we look at... If we're talking about privileges enjoyed by or privileges enjoyed by other properties in the same zone or in the same PUD if we're talking about how other lots in the PUD have have violated the setback ordinance that's not necessarily a property right it's a violation of our setback that's not something that we allowed or a special privilege that we allowed it's just The analogy that I would like to give is if you get pulled over for speeding and a bunch of cars around you are speeding, you can't say that the officer is an excuse that everybody else was speeding as well and I'm the only one with a ticket. If everybody else is speeding, they're still speeding, they just didn't get caught. And that's kind of what we have here, that other lots may have violated the setback ordinance, but at the time that that was done, the city didn't catch it or... wasn't any kind of a complaint or there something happened but this is what we what we caught and this is what we have to enforce the city's obligated to enforce its zoning ordinances and the reason why that is is if if we decide uh just indeterminately as staff of the city to not enforce our zoning ordinances what that amounts to is is an administrative action that affects legislation. And that's why variances have these five elements that need to be met under the 109A702, because zoning laws are the purview of the legislative body of the city, and that would be our city council. And they should only rarely be varied from under an administrative act. And that administrative act could be inclusive of an appeals and variance hearing officer's decision. So if we're if we're looking at the third going on to the third element whether granting the variance is essential the enjoyment of substantial property rights we don't believe that that's the case that because those rights are possession control exclusion derivative income and disposition and and the applicant still has the right to all of those things the applicant still has a right to build a home there and live in a home there built according to the plans that were approved or draw up some new plans if they don't like the um the layout of the plans that were approved but drop some new plans that comply with the setback um and if we're talking about whether it substantially affects the general plan contrary to the public interest we could say maybe perhaps it doesn't in this in this individual circumstance but if we continue to grant variances as a city similarly situated properties if we're talking about special privileges in the same zone the next applicant can come in and say well they granted special privileges to this other property in the RA 2 zone and and we should have it as well in the aggregate what that does is that effectively erodes our setback ordinances by other other applicants coming in and asking for the same thing then when we talk about the spirit of the zoning ordinance will be observed and will substantial justice be done no we could say that that's not going to happen the spirit of the zoning ordinance as Mr. Cook points out is to specifically with setbacks is to create separation from from properties from from buildings and property lines and in this case without the amended plat the distance between the corner and the property line is 2.8 feet as opposed to the 7.2 or the approved 10 feet so that boundary adjustment hasn't been approved on the plat yet granting the variance wouldn't even necessarily require that that boundary line adjustment be made and we could end up with a situation where we're in a 2.8 foot between the building and the property boundary line so so that that would violate the spirit of the zoning ordinance and if we're talking about substantial justice it doesn't seem just that the city issues a building permit and then the applicant goes and doesn't build in accordance with that building permit and then to come in and cover their self-imposed and purely economic mistake asks for a variance and You know, that's asking for permission and then not acting in accordance with that permission and then asking for forgiveness afterwards. So we don't necessarily believe that it can meet any of the five criteria for a variance. And we would ask that the appeals and variance hearing officer deny the request for the variance. And if you have any questions, I'm happy to answer them. I had one question on the second element. There are special circumstances. I was trying to follow your argument. You said because it's your position that there is no unreasonable hardship. I think you said then there can't be special circumstances that attach to that hardship or something like that. I was trying to follow it, and it was probably my fault. Do you remember what you were saying about that? Sure, if we look at 1098702C, or 7022C, excuse me, the statute says in determining whether or not there are special circumstances attached to the property under subsection 2A, the appeal authority may find that special circumstances exist only if the special circumstances relate to the hardship complained of and deprive the property of privileges granted to other properties in the same zone. And it doesn't do either here because we can't find an unreasonable hardship because it's a self-imposed economic one. So if we can't meet that first prong, we can't, we can't meet that second prong. The statute forecloses that opportunity to find the special privileges or special circumstances prong. Okay. I understand your argument. Anything further from the city? No, just I guess we repeat our request that you deny the variance. OK. Mr. Cook, I don't know, Jennifer, how much more time we have set aside. But whatever we have, you have it, Mr. Cook. OK. I'll try to make this really brief. So a couple of the issues. The first is that the property boundary adjustment hasn't been granted. So we could end up with 2.2 feet. And again, we're requesting the variance of 7.2 feet. So we're requesting a variance of 2.8 feet just on the corner. If the property boundary isn't granted or if we can't get permission and we can't meet that requirement, then the variance wouldn't allow us to move forward anyway. So we know that getting the variance is contingent on that. But obviously, it doesn't make sense to go through that process. until we go through the variance process and see if we can get the variance to make sure that we don't adjust property boundary lines and then not get the variance. So again, that argument I don't think holds weight. The second one is that the city must enforce their zoning ordinances. That's true. The city must enforce their zoning ordinances. And zoning ordinances have a purpose. But there's also a purpose for variances, which is there are situations where literal enforcement of the zoning ordinances doesn't make sense and creates results that are not the purpose of the zoning ordinance. And I think, again, that's why we're going through this process is because we believe that this is a situation where literal enforcement doesn't make sense and that all the parties involved, particularly the two property owners that are impacted by this, want this variance or requesting the variance or in support of the variance. So again, that's why we're going through this process. And then again, the last thing I just want to point out is I recognize and I agree that the hardship that we're relying on can't be self-imposed or economic. And again, we're not saying that the hardship is that we're going to have to rip out this foundation. We agree that if we're standing here and saying, geez, it's going to cost us $300,000 to rip out the foundation and that's our hardship, that the state law precludes that as being our hardship. But what our basis is is that we believe there's other hardship that is part of this and that would be part of a denial that we do believe that can form the basis and Again, I will be the first one to concede that the best situation would have been to come in and get this variance before. But we are in the situation that we're in. And I don't believe that that precludes us from now coming back and having a situation where we can meet the criteria and get a variance in a situation where I think it makes sense, where the property owners are in favor of the variance, where it It doesn't hurt the city or the city code or the policies of the city. So this is a situation, I think, again, had we come in before and made these same arguments that I believe the variant should be granted and would have been granted. We're making those same arguments today based on our criteria that we think support the variants. And therefore, we believe it should be granted in this situation. That's all I have. I got one more question for both of you. Did anyone else of the public, any member of the public object to protest or submit anything else in favor of the application? I guess one way or the other, other than the property owner to the south? This is Jennifer. So we did not take in public comment on this. Okay. Okay. That was my only question. Anything else? Mr. Cook or Mr. Duchesne? I'm good. Thank you. Okay. We'll bring this hearing to an end. The evidence is closed. Thank you both. I intend to get a written decision out in the next 10 days. um unless anyone has an object any objections to that it might be a little sooner great and and and um okay that's it that's it i had another question but i can ask jennifer about that okay thanks everybody okay tim before you close the meeting the agenda did have another item and that was and i it was minutes from our last appeals and variance hearing officer meeting um I know it's kind of awkward just because you were not the appeals and variance hearing officer at that meeting, but we do need an approval. Okay. And is it me making, would I approve those minutes? Yes. Yeah. Okay. I should probably look at them before I approve them. Did you, are they in the, you probably sent them to me and I probably just didn't look at them. Yeah, they are attached to the agenda. They are from the August 30th meeting. 2021 meeting. Mark Kleinfeld was our appeals and variance hearing officer at that meeting. And it was for a variance at that meeting as well. And I believe there was only one item on that agenda. Yeah. But we do need a motion to approve those minutes. or we can continue them to the next meeting if you have not reviewed them. But let me just bring them up real quick. So I'm looking at your email from December, no, no, no, no. What's this one? I got one from Amy Salazar. sending me the hearing agenda. Yeah, so if you open up the link to the online. The link? Okay, the link. Yeah. Okay. Now let's just do this now while it's fresh, if you don't mind. No, that's fine. So yeah, if you open up that link, it'll open up our online agenda and then you'll see item one there is the meeting minutes. If you click on that item, it'll open up a memo. And at the bottom of the memo is a link to the minutes. Okay. The link is coming up. Okay. Number one, action item approval of the minutes. Clicking on that. And who's responsible to prepare the minutes? I'm sorry, what was that? And who prepares the minutes? We have an outside consultant who prepares our minutes, and then both Amy Salazar, who is in charge of our recording, as well as myself, we review the minutes before we put it on the agenda. Okay. Sorry, I've clicked on it. It's just moving kind of slow. I don't know if it's just late in the afternoon when it seems like everyone's internet starts to slow, but it's coming up. Okay. Wants me to click on another link. I've done that in the draft minutes. While I'm waiting for that to load, I'm assuming I will send you a copy of a written decision for this matter and you'll send it out to the applicant and the city? Yes. Yeah, you can either send it directly to me and the applicant, or I'm happy to pass it on. Either one. Okay. I'm going to look through these minutes real quick. Okay, so motion, I'll make a motion to approve the minutes of the Draper City Appeals and Variants hearing held on Monday, August 30th, 2021. Hearing no objections, the minutes are approved. Good enough? Yes, that's good enough. Thank you. If there's nothing else, we'll talk to you later. Have a good day. You too. Bye.