tomatoes left. I'm not picking. There's still a few left. Hi, everybody. This is Jen Dostromski. So it is 3 o'clock. It looks like everybody that we were expecting to be here is here. So you do have the ability to unmute your mics. But I ask if you're not speaking during the meeting that you mute your mics. That way we don't have feedback or or background noise coming in on the meeting. Okay, so we are recording now. So Mark, I do have the PowerPoint that was presented to the Planning Commission up in case you want to look at any of the maps or anything like that. But I'll turn the meeting over to you. Okay, thank you, Jennifer. My name is Mark Kleinfeld, and I am the designated appeals and variance hearing officer. Today's date is Monday, August 10th, the year 2020. It is 3 p.m. We were scheduled to commence this matter at 3 p.m., and this is the matter of an appeal of a planning commission decision dated June 11th, 2020 based on the application of quality diamond tools home occupation conditional use permit. This appeal is numbered as 1023-2020. I believe the original application for the conditional use permit is numbered as use-937-2020. We are holding this meeting electronically and in the notice has been a determination, I think for the sake of confirmation, I am going to read the written determination that I issued and I dated that actually July 30th when this was originally scheduled and because of some notice circumstances and the necessity of a written determination of why we're holding this meeting electronically. I dated at the date of the original hearing. And let me just read that for the record if I might. Pursuant to Utah code annotated 52-4-207 subsection four, I, Mark Kleinfield, Appeals and Variants Hearing Officer, do hereby determine conducting an electronic meeting of the Draper City Appeals and Variants Hearing Officer with an anchor location presents a substantial risk to the health and safety of those who may be present at the anchor location and hereby authorize the Draper City Council's conduct electronic meetings without an anchor location. The foregoing determination is based on the following facts. Federal, state, and local leaders, including the Draper City Mayor and City Council, have recognized a global pandemic caused by the spread of the COVID-19 virus. COVID-19 cases in Salt Lake County and Draper continue to increase at rates which pose a risk of overburdening the local health care system. It is difficult, if not impossible, to predict the number of attendees at any meeting and to manage issues regarding social distancing in order to comply with state phase guidelines. COVID-19 poses a continuing and immediate threat to the health, safety, and welfare of Draper City residents. The city has a technological capability to provide means by which the public may hear or view the open portions of the meeting and to participate in public hearings. And as I referenced, I have dated that as of July 30th, which was the original meeting. With everybody's understanding and concurrence, we have moved the hearing to today's date of August 30th. with appropriate notices being mailed and placed and published referencing that. What I'd like to do with this, Jennifer, is kind of briefly go over how I feel is appropriate to proceed. This is an appeal filed by Quality and I believe parties are Mr. and Mrs. Duncan. The burden in this regard is on quality to convince me that I should reverse or modify in some manner the denial of the planning commission of the request for a conditional use permit. Typically the party with the burden goes first and then the city would respond. I have found it helpful me in conducting these hearings to have the city or at least staff kind of give a brief chronology or history of how we got to where we're at today. Then I would ask the appellant, Mr. and Mrs. Duncan's legal counsel to make his presentation. Then I'll ask the city to respond. accordingly. And then I'll give a final response, if you will, to Mr. and Mrs. Duncan's counsel in light of the fact that the burden is on the appellant. What I need to do at this juncture is ask respective counsel to make their appearance of record, please. Sure, Judge. This is Attorney Spencer Phillips appearing on behalf of Jim and Lois Duncan and Thank you Mr. Cox for the city. Spencer Dushane appearing on behalf of the city. And Mike Barker city attorney. And then do am I still going this is Jim Duncan do I get a chance to say a quick few words. This is an appellate hearing, so per se, we're not taking testimony or anything new beyond what the records reference. But I have no problem that the city has no problem of letting you speak to make a brief sort of presentation, Mr. Duncan. But at this juncture, what I'd like to do is, again, have the city staff Give me a chronology of how we got to why we're where we're at today. And then I'll allow you, Mr. Duncan, in conjunction with your counsel, to make a brief statement, certainly. And then I'll have your counsel, Mr. Cox, go ahead and present his legal arguments. And we'll go with the city's response and then back to a closing argument by Mr. Cox. Is there any problem with how we're going to proceed? Just to confirm, Your Honor, so it's Phillips, it's the last name, P-H-I-L-L-I-P-S. I apologize, what was that, sir? No worries. Okay, why don't we go ahead. Jennifer? Great, thank you, Mr. Kleinfeld. So I'll go ahead and give a brief history of the project. A detailed timeline of events was submitted with the city's brief as Exhibit A. Quality Diamond Tool is an existing business within the city and has been located at 447 East, 118th South. The appellant is looking to relocate the business to 12138 South, 8th East. The property on 8th East includes two separate parcels, which predates incorporation in the city in 1978. The front parcel includes a single-family home, and the rear parcel includes two detached accessory structures. Historically, the properties have been considered one property and used in conjunction with each other. The appellant originally applied for a home occupation conditional use permit on January 16, 2020, to relocate the business to the 8th East property. This application is for a home-based assembly and repair of limited use with several deviations requested to the code requirements. The city completed a review of the application on February 6, 2020, and scheduled the application for a design review committee meeting on February 11, 2020 to discuss the red lines with the applicant. On April 30, 2020, the city received a complaint that the appellant was operating the business. At that point in time, the city had not received a resubmittal of the application materials addressing the outstanding red lines from February, nor had any conditional use permit been approved. The appellant was notified that the use of the property for the business was not authorized. The appellant submitted the outstanding materials on May 1, 2020. Draper City then scheduled the appellant for the May 28, 2020 Planning Commission meeting. A staff report for the May 28 meeting concluded that additional information was needed in order to process the application. This needed information included clarifications on exactly what deviations from the code were being proposed. The application was continued at the Planning Commission meeting and rescheduled for the June 11, 2020 meeting. The appellant provided the additionally requested materials on May 27, 2020. The application requested deviations to nine of the 17 requirements for home occupations, including use of detached structures, storage, and deliveries to the property. The staff report to the Planning Commission included 19 conditions of approval for consideration by the Planning Commission, in order to mitigate the anticipated detrimental effects. The application was heard by the Planning Commission at their June 11th, 2020 meeting, where the Planning Commission denied the application based on three findings. One, based on the inability to control delivery vehicles that would comply with conditions. Two, based on the use of a forklift. And three, based on the intensity of use of the business. And the appellant appealed the decision on June 24th, 2020. Okay, thank you. Mr. Phillips, I apologize. I've been referenced you as Mr. Cox. For some reason, I must have the election on my mind. I apologize in that regard. At this juncture, there's no objection from the city. I'm more than willing to entertain Mr. Duncan himself, making a few comments before Mr. Phillips goes into his legal presentation. Mr. Duncan? Okay. Thank you. I appreciate this honor. It's been quite an ordeal for us here. Trying to get this process through and I would like to take a minute and just come up with a little bit of background on it. Both Lois and I have seven children and 12 grandchildren between us. I have a special needs son and a son that had an accident in a wheelchair or that has left him paralyzed from the chest down and is in a wheelchair. We were active and busy. We are active and busy in the church in our neighborhood and community. I've been a scout master for over four years and served in scouting program for over 20 years. And I've had numerous scout groups into city council meetings, including drapers. All within a couple of years, I had... come down with non-Hodgkin's lymphoma had chemo and treatments for over six months my wife of 20 year marriage had left and all of a sudden I was a single parent and the custodial parent of four kids still at home and in school but 20 after 25 years all this has happened in a very short period of time and after 25 years of service I was laid off from my occupation and from my my employment, and then my son who had had the accident that left him now a C4567 quadriplegic. I just wanted to note that I didn't ask to be self-employed. I didn't ask to have to go in and do a home-based business. But due to the circumstances and the way that things were, I needed to provide and I had to do something. And I had to do a quick, so I started this business in 2004. Consulting, quoting, and helping, and hopefully selling, the only thing I basically knew how to do and what I'd been doing for a few years. 25 years I was employed. In 2006 is when I moved into Draper at Kimball's Lane. I took out a business license with Draper. and continued to provide for my family. At that time, Kimball's Lane ended on each end. There wasn't a hospital and there was no tracks on the end and it was relatively quiet. The business license was kept current with Draper until one year that I called and tried to renew, but was told by Draper that they no longer did that. Nothing else was said or asked by Draper We're done until basically last year in 2019, August, Lois and I were out walking the neighborhood and that's when we found this property still in our same ward boundaries or in our same area. And we thought that this would be a little less congested here and easier. So that's kind of why we ended up deciding to move to this eighth East property. It seemed like it would be great. It had its own driveway, a shop in the rear, and would keep the UPS trucks, the small package trucks off of the street and out of our driveway. I took out two building permits. After closing, I took out two building permits. So all along, I've been trying to do what was expected of me. I've never once tried to hide anything. I've invited the city over here and I'm trying to do what I need to do. I took out two building permits, one to re-roof the existing house because this was a very dated house and also a building permit to put in a bathroom in the back and to run some utilities out there. all along telling Draper that this is what my plans were to do is to move from Kimball's Lane to here. Those business licenses were completed, approved. So now we've spent thousands of dollars on each of these two lots. We have enhanced the home up front, the landscaping, Both Lewis and I love to garden and have added three garden areas between the two lots. We have done an overlay of the existing asphalt that was already here in the rear lot. It was badly cracked and broken and was an eyesore to us as well as our neighbors. We spent several thousand dollars on this, that shop that was in the back and already existing just to tear down 18-foot crane with an 18-foot boom extension on it that swung 360 in that shop. It cost me over $2,000 or $3,000. It was about $2,800 to get it tore down and moved out of the shop just because it was commercial and it was nothing that we needed or wanted to use. So we got rid of it. We've made every effort to clean, organize, and enhance both the front lot and the back lot. We've strengthened and added the fence around the property. In the back, we have added five 28-foot evergreen trees from Willow Creek Tree Farms there in Draper just to enhance the outside of the back and to kind of help the neighbors. so that they weren't looking into an already existing backyard that was with these shops. We've added a nice swing set, tetherball, basketball courts. The neighborhood kids and our own children and grandkids love it. It is a safe and an inviting place to play and to hang out. We love our neighbors here. We're getting to know them better. We all have been helping and serving one another. All are in support of this business being here. I value their opinions and their concerns and those that are right here on all four property lines as well as across the street know that. There are three areas that Draper City I know is concerned about and I just want to, I'm almost done here. So thanks for bearing with me. I would like to touch on each of them real quickly. The potential semi-trucks, all of our suppliers have already long been notified that if something were to get sent to us, or palletized, that it would never come here. They have an address, it goes care of truck dock. My guys will hop in a pickup truck, or I'll go to the dock myself, we pick it up at the dock, we bring it back here, and we unload it here. So there is never trucks anymore. So that's a big thing that we've made change that, and the neighbors know that we're concerned and that we don't have an issue with trucks. We do our own scheduling, and we can set the addresses where to go. So other than UPS and the FedEx small package trucks, there is no semis, and there will never be a large truck here for us. The forklift, the small propane forklift can be removed if needed. I'll get rid of it. It is merely a convenience for me because I have three rotator cuff surgeries. and I have an upcoming shoulder replacement. Also an employee who has a bad back and shoulders too. Some of our items here in this business, they do get a little heavy, especially if they've been consolidated to save costs on freight. And that helps us to make it easier so that we can keep the trucks out of here. That forklift is... just makes it easier to get stuff on and off if since we're now going clear to the truck docks downtown Salt Lake City to take stuff and to pick stuff up when that arrives which usually is only once maybe twice a month. The third was the two containers that we have. They're brand new containers that I stuck in the back. They border along that back property. They're nestled. So they're still a ways away from the fence. They're not intruding by any property lines. And they look nice, but they're there for a reason. But I will get rid of those too if it is needed to. to happen just to obtain this license. I can't afford to put myself out of work, my families and the two families that are here counting on them for the work here. But those containers do make two, well, several things. The nature of our business is to sell parts. So there's no manufacturing, no cleaning, no preparing, no noise. I have to forecast months in advance I need to have items in stock where I cannot sell them. So we have a wide and a rather large set of items to choose from in our industry. And so sometimes I might have some items here for a day or two or maybe even a week or two while it's consolidating, waiting for something else. And just having those containers here helps me to keep things cleaned and organized and out of the way. It allows me to keep the property looking nice. And it just has a big need to be able to have things to keep the crating and the issues that come with some of the stuff. I mean, I had a small business, but there are... some equipment that I need to be able to process and clean and to keep organized and to consolidate and just having those there just makes it simple to keep everything where it needs to be to keep it looking nice and organized. But again, I'll get rid of them if that's what's needed. Not worth it, but I'm begging or I'm asking that if it is all possible to be able to keep them just because it really helps with keeping the property looking nice and to keep it organized and clutter free. The containers themselves are you know, way in the back. So they're over 250, close to 300 feet from the front of the property anyways. So, yeah. So, you know, the container just helped me keep the product out of the weather and consolidated and waiting for other items to be So I'm asking if that's possible. If it's not, that's okay. Just in final, we are at the mercy of Draper City. There are three families here, including Lois and I, that count on this little business for their livelihood and to count on it for the support of their families and their extended families. We pray for the opportunity to be able to prove on what we have said we will do. This little business will stay small. It won't expand. It's not going to grow. We are asking and praying for the opportunity to prove that. We thank you for your time and your consideration. Please give us a chance. That's all I have to say. Thank you. Thank you, Mr. Duncan. Mr. Phillips, In getting into what I'll label legal presentation or argument, I'm gonna restrict, if you will, and Mr. Duncan has spoken to that very well and very admirable, Mr. Duncan. Mr. Phillips, in your letter of June 26, 2020, you listed the three items that Mr. Duncan has spoken to as to the basis of the denial. And I want to stick to that and have you speak to each one individually as you feel appropriate. Denial reason number one, inability to control delivery vehicles that would comply with conditions. Number two reason denial is use of forklift. And denial reason number three is intensity of use of the business. If you could speak to each one of those respectively, then I'll ask council for the city to respond accordingly. And then I'll give you Mr. Phillips a final say, if you will, in wrapping up. Sure, thank you. So I think we're thinking about this along the same lines. My notes here have three points that I'd like to make, and they are along those same points that you just raised. and so I will be brief. The first one regarding the issue of semi-trug deliveries to the property. In the city's legal brief, or the hearing brief that they submitted in advance of this hearing, the city seems to be relying pretty heavily on a statement that my client made before the Planning Commission when he was not represented by council and did not have any legal guidance on how to prepare and present his case before the Planning Commission. they reference in the brief that a parent is on the record that he could not meet the condition and eliminate semi-truck traffic. So as you just heard from Mr. Duncan, and over the past, I believe it's two months, possibly more, that he has figured out a way to ensure that there are no semi-truck deliveries to his property. And there have been, no semi-truck deliveries to his property since he made those changes. He is confident that he has taken care of the routing of the product that comes to his home so that he and his employees can go pick it up downtown. And so that there is no longer an issue here of whether or not there might be semi-truck deliveries to the property that could be seen as being inconsistent with the city code That issue has been fully resolved and we would ask that as you are considering your decision in this appeal that you take into account the information that Mr. Duncan has shared and the assurance that I am providing as his legal counsel that there are no more semi-trust deliveries coming to that property and that there will be no such deliveries in the future. The second point is the forklift issue. This is under City Code 934-040-G, as in Gary. That part of the City Code, Your Honor, does not say that forklifts are a per se violation of City Code, which is exactly what the City is arguing in their hearing brief. Rather, what that section of the City Code says is that they may be a nuisance if they are offensive and noxious by reason of the emission of odor, smoke, gas, vibration, and list a bunch of other things. So the city presents in their hearing brief the very fact that there is a forklift with that regard to whether it's electric or diesel powered or with that regard to the level of emissions or the... the sound decibels coming out of its motor or its engine. They're arguing that a forklift, just because it's called a forklift, is a per se violation. That is not what the city code says. The city is required to present evidence that this particular forklift being used by my client constitutes a nuisance because of the offensive and noxious odors or sounds that are coming out of that forklift. There is no such evidence that was presented by the city to the Planning Commission. There's no evidence in the hearing brief. There's frankly nothing in the record that proves or shows that the single forklift that my client has been using on a very limited basis somehow meets the definition of a nuisance under the city code. And so we would ask, as you are considering your decision in this matter, that you recognize that forklifts can be considered a nuisance, But in this case, there is simply no evidence proving that this forklift is a nuisance in this situation. And as you're also making that consideration, please keep in mind, my client has stated here on the record that if it comes down to getting rid of the forklift and finding a way to piece by piece unload things off of a pickup truck instead of using a forklift, if that's what he and his old age and condition has to do, he's willing to do it. The third point is the intensity of use under the City Code 934-101. That part of the City Code, Your Honor, refers to avoiding any kind of business activities that would disturb the residential character of a neighborhood. You've just heard from Mr. Duncan that the property was in a dilapidated condition when he purchased it. He has resurfaced the asphalt, He has added three gardens. He has added a playground, a basketball court, gardens, all kinds of things that have made this property that used to be in very poor condition and was an eyesore to the city of Draper is now a lovely lot that is very residential and adds to the residential character of the neighborhood. The fact that there are two enclosed bins at the back of the property or that the the buildings at the back of the property are storing parts does not in any way detract from the residential character of the neighborhood. Rather, this property is much better than it was before. It adds to the residential character of the neighborhood and does nothing that would violate Section 934.010. As you're considering this part of your decision, we would ask you to also remember what Mr. Duncan said in his statement. that if necessary, he would be willing to reduce the storage square footage and take away those two storage containers if that is something that would allow the home occupation conditional use permit to be approved. This is his livelihood. It is his family's livelihood. It is a livelihood that his disabled son and other family members depend on. He has done nothing but try to comply with everything the city has asked of him because of his efforts, because of the dollars and the money and the effort that he has spent. This property is now a compliment to the city of Draper. And we ask that you will reverse the decision, which by the way, was a two to three decision of the planning commission. Just one vote could have made it on the other way that would allow Mr. Duncan and his family to continue supporting themselves and supporting the city of Draper. Thank you. Thank you, Mr. Phillips. Council for the city, I'd ask you the same. Keep your comments or your argument to the three points that are in Mr. Phillips' letter. That seems to be the argument. And I have to note that... that Council for the City, if I'm understanding correctly, is a graduate of Creighton University. Yes, sir, Mr. Klein. Is that correct? That's correct. Okay. I graduated from Creighton, so I want to make that disclosure. There's no favoritism for a fellow Blue Jay, but I do want to put on the record that it's rare that I run into Creighton graduates, even though they're becoming more and more prevalent here in the state of Utah. Go ahead, Council. Thank you, Mr. Kleinfeld. So in response to Mr. Phillips' arguments, first of all, this appeal is limited to the record before the Planning Commission. Under Draper City Municipal Code 95180D4, we are limited to what was before the Planning Commission. So while it's admirable that Mr. Duncan has made these assertions, today, those assertions weren't necessarily all made before the Planning Commission. The Planning Commission's decision was made based off of the evidence that they heard. In this review, under the same code, Draper City Municipal Code 95180D, the appeals and variance hearing officer is to use the substantial evidence standard, and substantial evidence is that quantum and quality of relevant evidence that is adequate to convince a reasonable mind to support the conclusion that the Planning Commission made. So we're somewhere more than a mere scintilla of evidence and less than the greater weight of the evidence. And based off of that standard, Quality Diamond can't show that the Planning Commission made an error. With regard to the semi-trucks, the Planning Commission could only go by what it was told in that Planning Commission meeting. So whether or not Mr. Duncan was represented by councils, not terribly relevant at this juncture because the planning commission had to make a decision. Mr. Duncan chose to go before the planning commission and make his case. What the planning commission was told at that time, it was told specifically, we don't ask for that, but it does happen when asked about semi truck delivery. Additionally, he said, you know, We don't have it very often, but every once in a while, somebody will surprise us, even though we don't ask for it. Based off of these answers, when asked specifically about whether he could guarantee that semi-trucks wouldn't be delivering, the Planning Commission made a finding that the semi-trucks were problematic for granting the conditional use permit, and that was one of the basis for denying the conditional use permit. With regard to the forklift being a violation, there are conditions that are listed in the staff report, specifically condition number 16, where it limits forklift operation to one hour after delivery. Now, there's another condition that allows the forklift to be used, well, allows delivery and shipment to six total trips. So theoretically, five days a week, six days a week, Mr. Duncan could have the forklift running three hours a day for three different deliveries. Or if he received six total deliveries in a given day, he could have the forklift running for six hours. Those are vested rights that are granted with the conditional use permit. And a forklift makes a beeping noise every time it operates. or it makes other kinds of noises, those are not consistent with a residential aspect of the neighborhood. In Draper City Municipal Code 9-34010, it states that the purpose of the Home Occupation Conditional Use Permit is to permit businesses that do not disturb the residential nature of a neighborhood. Forklift operation for three to six hours per day is not consistent with the residential nature of a neighborhood, that seems to me to be more like in a commercial or manufacturing zone type of a thing that you would hear. And then on the third issue, Mr. Duncan has asked for nine out of 17 deviations to the code from the Planning Commission. His Draper City Municipal Code limits outdoor storage to 250 square feet. under 934-040-E. It limits how much of the home can be used as an office at 25%. Quality Diamond's proposal before the Planning Commission was to have 1,040% of the storage space that's permitted by code and 271% of the increase of an increase in home usage, so 67% of the home used for the business. Those were the facts before the Planning Commission. The Planning Commission decided that the cumulative effects of these uses, the semi-trucks, the forklifts, 9 out of 17 deviations, and these extreme deviations to the percentages of storage space and home usage space, were an intense use of the property, not consistent with the purpose of 934-010, which is to permit businesses that don't disturb the residential nature of a neighborhood. So, Mr. Kleinfeld, what your responsibility here is is to look at the facts before the Planning Commission and make a determination of whether there's enough evidence there that a reasonable person could have come to the same conclusion. And if that is the case, then, you need to uphold the decision of the Planning Commission. Typical Planning Commission deviations are 5% to 10% of what's allowable by code, and these deviations were far in excess of that. And so I would say that that supports the finding of the businesses to intensive abuse. Okay. Thank you, Council. Mr. Phillips, I'm going to give you one last opportunity to summarize your position or positions, and then we're going to go ahead and conclude. Mr. Phillips? Yes, thank you again. I'll just be very brief. I just want to focus in on the statement from the city regarding their understanding that the city's planning commission decision was based on the cumulative effects of deviations. And what you've heard today, and I understand that some of this information may be different or presented differently or new from what was presented to the planning commission, but Mr. Duncan is willing to forego the use of the forklift and forego a significant portion of the square footage of storage space, both of which would decrease the cumulative effect of the deviations that were requested. And so we asked again to show some, as much as you are allowed by city code, to show not only understanding and mercy to this individual, this resident of Draper City and his family, allow them to move forward and continue as a business operating within the city of Draper and to reverse in the decision of the planning commission. and to approve his application for the home occupation conditional use permit. Thank you. Okay. Thank you. Thank you. Go ahead. Sorry. Is it possible just to make one little statement on that forklift, please? Yeah, let's go ahead. We're acting somewhat informal. I want to give everybody a fair opportunity. But absent your last comment here, counsel, I'm going to go ahead and make some closing remarks. comments and then we'll wrap this up. Go ahead. That forklift doesn't even operate three hours a week, so somebody's blown that way up. Is this Mr. Duncan? Yes, this is Mr. Duncan. Okay, I'll take your comment for what value it has, but with that I'm going to conclude in presentations and arguments. I appreciate both parties' concise presentations. The information is confirmed. Thoughts I've had in my mind. It's also given me other room for trying to address this quandary. But I will make every effort to come up with a decision within the timeframe as referenced in the city code and get this sent to the parties because Both parties need direction of how, if at all, they're going to proceed further. With that, we're going to conclude this proceeding at, I've got it as about 3.45 p.m. or thereabouts on the same day of Monday, August 10th, the year 2020. Thank you very much. Thank you. Thank you. Thank you.