Okay, Mark, it looks like we are recording and we are good to go. Okay, very good. As I asked before, is everybody connected? That is necessary right now. We're not expecting any late comers or anything like that. Correct. Okay. My name is Mark Kleinfeld, and I am the designated appeals and variance hearing officer for the City of Draper. And today's date is Thursday, November 5th, the year 2020. It's approximately 2.04 p.m. We were scheduled to commence this matter at 2 p.m., making sure all the appropriate connections were made and were recording. And we are streaming this also, I understand, for the public in light of the fact that this is a public event. public hearing. And what I'd like to do first is have the parties that are connected that they could state their name and who they're representing in this matter. And let's start with Mr. Burroughs, I believe. Okay. It's J. Michael Burroughs. My address is 1191 East 13200 South Draper, Utah. And I am the applicant. Okay. And on behalf of the city? I'm Jennifer DeStremskam, the zoning administrator. Okay. And is there, I'm seeing another party. Is it Mr. Duchesne, the assistant city attorney? Is he online here also? Yes, sir. Okay. This is a matter, it's an appeal. Mark. Mark, sorry, we've got a couple other people who aren't planning on speaking but are present. We've got Christina Oliver, the Community Development Director, Laura Oscarson, our City Recorder, and then Amy Salazar, our Office Manager. Okay, I appreciate that. I appreciate that. This is an appeal of an administrative interpretation on the date of September 25th 2020 issued by the zoning administrator. And that original request for that administrative interpretation was filed by Mr. Burroughs. It looks like August 14th, 2020. And after the issuance on September 25th, 2020, Mr. Burroughs on or about October 5th, 2020 filed a timely appeal of that interpretation, and that's what gets us here today. Appeal matters, the burden is on the applicant, on you, Mr. Burroughs, to show why you believe the interpretation of the zoning administrator is incorrect or inappropriate. Typically, the person who has the burden goes first and makes their presentation first. then the city would have time to respond. In light of the fact that you have the burden, I will allow you a final summation. I may well have a question or two, or I may have none. If I happen to ask you two questions and the city one or the city five and you two, that doesn't mean I'm leaning one way or the other. Those are just questions I have. And I don't do that to throw anybody off track or like that. Those are just questions I have. And they help me to follow the presentation better. It's not meant to throw anybody off stride or anything. This is an appeal. We will not per se take new testimony or evidence. I do note that Mr. Burroughs filed five photographs, and the zoning administrator was kind enough to forward those, filed five photographs this morning, it looks like, and the zoning administrator forwarded those on to me, and I had those. I guess I need to explore, is that new, or was that in the record previously, and these are further blowups, or what? This is Jennifer. Those were provided to the city this morning. Or last night. Sorry, they were emailed in last night. They were received this morning upon arriving at work. Okay. Are these blowups of previous or are these brand new photos that you've not seen before? They are brand new. Mark, if I may interject. Those are photos to represent. First of all, I'd like to say is I am very nervous about this. It's attacking me kind of personally and in no way, shape or form do I know legal matter or attorney or any type of that. So if I sound incorrect or where I'm trying to go with things, I apologize and I hope that you'll take consideration of my naiveness in that area. So I took those pictures. recently because I came across other buildings that are encroaching within Draper, that are encroaching on the property lines that are newer since they've created the 10-foot code, but the city has done nothing about those. That's why I presented those pictures. It's just those pictures are other properties within Draper, and I do have the addresses on them. Okay, so this is not the subject property. These are pictures of other parties' properties. That's correct. To show that even since they've made this code, that they've allowed other structures to be built. Okay. I can appreciate that, and I always do take into consideration the level of experience and background and expertise or non-expertise of the presenters. I have to say this, Mr. Burroughs. I am not... going to consider these photos or anything going down that road because that's not part of the record that the zoning administrator made her decision on September 25th, 2020. They may well be something that might be presented in another proceeding, if you will, but they can't be viewed in light of what we're here today for. We're appealing what the record said that led to the September 25th, 2020 interpretation, administrative interpretation by the zoning administrator. I will grant you a certain amount of latitude to present your argument, but I can't really accept any new evidence. And that's what these photos show. would be okay if that if that be the consideration then i was also under the understanding that when we are finished with the portion of this appeals hearing that we would also be able to entertain a variance issue that's what uh jennifer explained to me that this is the same it's the same hearing that you're also appealing and also looking at the variance that i didn't need to apply for both of them Well, I can't – I wasn't sure it would be a course to let you just – go ahead. This is Jennifer. Before we get too far into this, you still have to read the written determination that is on the agenda that's legally required for us to have the electronic meeting. I don't want us to get too far into the meeting without that having been done. And I appreciate that, and we really haven't gone into the merits of the appeal. So let's – Let's go back and I will read this. And I believe I signed this, was it like October 27th? It was the 30th and I did get the paper, the signed copy that you mailed in. Okay, so it was on the 30th. I thought it was somewhere in that thing. Yeah, let me read that so we can make sure we're up to snuff. And this is on the screen right now, I see. So Mr. Burroughs, you can see it. Yes. Written determination 2020-22, pursuant to Utah code annotated 52-4-207, subsection four. I, Mark Kleinfeld, the Draper City Appeals and Barons Hearing Officer, do hereby determine conducting an electronic meeting of the Draper City Appeals and Barons Hearing Officer with an anchored location presents a substantial risk to the health and safety of those who may be present at the anchored location, and hereby authorize the Draper City Appeals and Veterans Hearing officers to conduct electronic meetings without an anchored location. The foregoing determination is based on the following facts. Federal, state, and local leaders, including the Draper City Mayor and City Council, have all recognized a global pandemic caused by the spread of the COVID-19 virus. Under Governor Herbert's COVID-19 Transmission Index, Salt Lake and Utah counties are classified as high-level, meaning both counties meet high-level criteria in at least two of the three following criteria. Seven-day average positivity rate, 14-day case rate per 100,000 people, and statewide ICU utilization. It is difficult, if not impossible, to predict the number of attendees at any meeting and to manage the issues regarding social distancing in order to comply with COVID-19 transmission index guidelines and Salt Lake and Utah County public health orders. COVID-19 poses a continuing and immediate threat to the health, safety, and welfare of Jaipur City residents and the public in general. The city has the technological capabilities to provide means by which the public may hear or view and hear the open portions of the meeting and to participate in public meetings. This written determination shall be included in the public notice of the Draper City Appeals and Variance Hearing Officer meetings and shall be read at the beginning of an electronic meeting held without an anchor location. Public notice of any meeting conducted pursuant to this written determination shall include information on how members of the public may hear or view and hear or make a comment at the meeting. This written determination shall take effect immediately and will expire 30 days after the date written below or until revoked, whichever is earlier. This written determination shall be filed promptly with the Office of the City Recorder. And it's dated the 30th day of October, 2020, uh, signed by myself as the appeals and variance hearing officer. And as referenced it, I did mail a copy to the city and it was received. I believe you stated Jennifer. Correct. The month here. Yes, I, I received it, um, I think a day or two ago. Okay. So it is in the records. What I'd like to do at this juncture is go ahead with the actual appeal hearing. And I will give a substantial amount of latitude, Mr. Burroughs. I want to understand what this is about. I have reviewed the paperwork to date. I've looked and looked at appropriately cited documents. city code sections, et cetera. And I think I have a feel for what the issues are in each of the respective parties' positions. But now's your chance to elaborate on that, Mr. Burroughs, and expand upon your written filings and tell me why you think the zoning administrator's determination or decision was incorrect. or inappropriate and also what you'd like me to do about it. Go ahead, Mr. Burroughs. Okay. So originally when this structure was built, it was built under, I guess, an old code of where the property line was, which allowed me to be two feet from the property line. And it had all the permits and everything in place and it was fully inspected and everything was built. So I don't remember the exact dates, but it was built It was built within that. So anything that that made that footprint or that structure is, is grandfathered in as the way that I understand it. And that would be no different than if them saying, oh, we made a new code, we're going to come and make you cut this back 10 feet, which they, because of the grandfather clause on that is the way that I understand it. So, what i did is is i needed a storage room above above that garage where that is located so i extended out eight feet on my roof from the structure that was there to create a storage room where i could put tables and chairs and stuff for parties so i could use the room otherwise the tables and chairs weren't in there and so i was kind of date back just a little bit i was under the original understanding that anything over 200 square feet didn't need a permit which I found out later that I did. And so I went through the process of okaying, I apologize, I didn't understand that correctly. And I'm not trying to get anything past the city. So I went through that process. And the first part of that process was to take this plus zoning and planning. And so zoning and planning looked at it, and they were saying that that structure encroaches on the area of that 10 foot rule. And My understanding is, is the way that this code should be interpreted is it doesn't go up the side of my building and then make an imaginary line and jog in 10 feet and then go up again. It takes into the grandfather clause and goes up to where I would encroach on the height restriction that the new code now has. So in other words, I could build something up to that 25 foot level and still be within the zoning balance. And that, even the way that I read it, and I read it several times, and I just, that's the way that I interpret it so that I'm building in an area that is not making it any larger. Now, their stance on it was, well, that means that if anybody wants to build, they could be 10 foot from the property line and they could build this structure out on posts. No, that's not the same. We're not talking the same on that because the post would plant two new footings, which would encroach on the 10-foot rule of that being there. My building already has a footing. It already has a foundation. It is already built. It already has that wall that's there. I'm merely building on the building that is already there that is not expanding it any bigger according to the footprint. And the way that one of their ordinances is written is when they have the rule where they look at how much property you have and how much your detached structure can build. It's not built upon where it's at to the property line or how much it is. They take the roof structure itself. And that is where I have not increased the size of the roof structure over the property. In fact, I even held it short of foot as I was building it to make sure that I didn't encroach on what was already there. So the addition that I put on there is smaller than what the roof section is itself. So, for instance, let's just say that my roof collapsed and I had to put a different angle on my roof or a different pitch on my roof. According to what she's saying, that would still encroach upon their rule because I pitched my roof at a new angle and now that encroaches upon that area. So this dormer that I've created, and all it looks like is a dormer, it's not really obtrusive at all, is just for a storage room and... The reason I'm taking that interpretation is it's not enlarging the structure or enlarging the space into the non-conforming area. There is no non-conforming area. That roof section should not be considered a non-conforming area. That's part of the building that's already there. Okay. Is that your primary argument? Yes. Okay. I'm going to give the opportunity to go further and expand and respond further, but I want to hear the city's position. And we may go back more than just once. I may go back a couple of times, but I think I have the gist of your argument, Mr. Burroughs. And I believe the assistant city attorney is going to be speaking to the city's position. Yes, sir. So... First, we'd like to talk about a threshold issue under the Draper City Municipal Code 95180D1. On an appeal to the appeals and variance hearing officer, the applicant is required to provide name, address, telephone number, the decision appealed, the grounds for appeal, and the description of the action claimed by the applicant to be incorrect. We believe that the documents submitted by the applicant have been deficient in this manner There has been a name and address and a telephone number provided, but without any kind of specificity, there is no indication of the decision that he's appealing, a grounds for appeal, or a description of the zoning administrator action that he claims to be incorrect. What we do have is the appeal requests addresses the hearing officer generically and offers the same letter that he used to request for an interpretation from the zoning administrator. There's no specific statement saying he's appealing the decision. He's not giving it a grounds for appeal. He doesn't give a description. And because he failed to comply with the procedure outlined in the Draper City Municipal Code, we'd ask that the hearing officer decide in favor of the City on that ground. But if we're talking about... Let me speak to that. The whole purpose of that is to give notice of what the appeal's about. And so there's no surprises. Are you surprised that we're discussing the September 25th, 2020 administrative interpretation? No. And are you surprised of what Mr. Burroughs' basic argument is? No. We need to make the argument as a procedural argument in case it appeals any further because we want to preserve that on appeal. Okay. I can appreciate that, but... I don't know that you're asking me to rule on that. It'll be part of my decision. I'll speak to it, but I think everybody knows what we're here for and what it's about. So why don't we move on to the substantive part of your argument, Mr. Duchesne? Yes, sir. So Mr. Burroughs has the burden of showing that the zoning administrator interpretation was incorrect according to the plain meeting of the ordinance. And as you'd mentioned, and... and we appreciate it that you said you limited this to the record, so that's what we're working with. If we're looking at the standard of review on appeal, the default position of the appeals and variance hearing officer should be to uphold the zoning administrator interpretation unless the zoning administrator rendered an incorrect interpretation using a substantial evidence standard of review. And the substantial evidence means the quantum and quality of relevant evidence that is adequate to convince the reasonable mind to support the conclusion. And it's somewhere between a scintilla of an evidence and the greater weight of the evidence. We believe that there's substantial evidence to support the zoning administrator's interpretation. So let's look at the merits. Let's look at the substance of it. Draper City Municipal Code 93040 defines setback as the distance on a lot between a building and a property line. And although we don't define building in that same section of the Draper City Municipal Code, we have adopted the International Building Code and the International Residential Code, both of which define building as that which is built or constructed. The setback requirement in the RA2 zone back and side yards is 10 feet we concede that at the first level the setback that exists as a legal non-conforming use for the structure is two feet and at the second story it's nine feet but since we have this definition of setback that uses property line and building to define what a setback is then we have to go from We have to use that and look at that in its most plain meaning. Now, property lines don't exist in two dimensions. It's not just an arbitrary line drawn on the ground. There's plenty of case law out there to suggest that the property line extends up into the sky and down into the earth. In fact, there was a recent case that came out from the Court of Appeals that discussed the Salt Lake City's condemnation of airspace. and recognize the airspace property rights of the of the defendant or excuse me of the plaintiff so using that we can we can look at the the garage itself and contrary to what mr burrows said the line in in defining our setback does make a jog back because the the line as the setback as defined goes from the property line to the building And so from the property line to the building on the second story of his garage, that setback is nine feet. It's a legal nonconforming use. And when he seeks to extend that second story out to the two feet mark, within two feet of the property line on that second story, what that is doing is that is expanding on the nonconformity of the building. Because the definition of setback relies on the building as a reference, we have to use that as well. And the second story wall becomes relevant to the definition of setback there. The proposed addition shortens the distance between the building and the property line, and that means that it encroaches. And because it encroaches further, it's not permissible under Draper City Municipal Code 96050C. because it expands the nonconformity of the use and that's our position. Anything further? Is that your total presentation at this point? I'm consulting. No, Mr. Kleinfeld, that's all we've got. That's our position, and we'll let it stand at that. Okay. Thank you. Mr. Burroughs, as I referenced, you have the burden. You have to convince me after all is said and done here. So I'm going to give you one last opportunity to expand on your argument or reiterate it, summarize it in some manner. Okay, I appreciate that. And again, I apologize that I don't have the consulting with other attorneys sitting around me and the history on case law that I'm able to look up. I just don't have that at my disposal. So if that be their argument, why are they not forcing me to tear down the existing structure because the first 10 feet of that line falls into their new 10-foot rule? So... My argument is, is that line, even though it continues up into the sky, which I 100% agree with and don't deny, that once it reaches that height, that I can't, if you did allow this, that I couldn't build over the 25 foot rule because that also encroaches because that's new structure going into that. Or if I added on to the east or west side of my structure, then I would have to set back 10 feet before I added on. I totally understand that. But so why is the first zero to 10 feet of my structure okay and okay to be grandfathered in, but from 10 feet on up is not okay to be grandfathered in up to the new 25 foot distance that you're requiring on code. It just does not seem right to me. What I mean by the grandfather clause is if they create a new code, then why wouldn't they come and make me tear down the existing structure that I already have because that line means that even for the first zero to 10 feet, if that's okay, then 10 feet to 25 feet should be okay also. Okay, anything further? No, sir. Okay, excuse me. I appreciate the conciseness of the arguments. I've taken some, hopefully, descriptive and helpful notes to me when I go back over I have been over the materials to a certain extent and I will go back further I believe with other items I have on my calendar that today is Thursday the 5th that I would think sometime mid next week I should be able to get this out so look for it the tail end of next week. If it's disfavorable to you, Mr. Barrows, it'll set forth any further appeal rights in the process related to that. But with that, absent there's anything else, I'm going to go ahead and conclude this matter. Is there anything further? I was under the understanding that you would also hear upon a variance if that or do we redo a new meeting on that if that does consist? What I have in front of me is the appeal. I don't have any other paperwork that speaks to a variance or expansion. There is a process under the code that permits the hearing officer to grant expansion of non-conforming uses buildings. But I don't have that specifically in front of me. I have only the appeal of the September 25, 2020 zoning administrator's interpretation. I've been trying to do this the best I can because, again, I'm not legal. I don't understand legal action and everything. Jennifer is the one that told me that this hearing would be the same hearing or appeal or a variance, that it would be the same. and that is why in my letter that I presented it that way that if the appeal doesn't go through then additionally I put in my writing that this does comply with the Draper municipal code that says it's compatible with the neighborhood and not detrimental to the community I saw that references in in your appeal application but Mark, if I may, this is Jennifer. Yeah, go ahead. I did send the applicant application to appeal and an application to request an increase in degree nonconformity. We discussed both options because both avenues are available to the applicant. The city received an application for an appeal, and that is what has been processed. We have not received an application to request an increase in degree nonconformity. That is something that the applicant can apply for if this appeal is not in his favor. I'm sorry, Mark, but if I may add, again, I'm back to score one. I am very, very frustrated because I spoke with Jennifer personally on the phone and I said, do I have to fill out both of these applications? And she said, you have to fill out the appeal because that's what you're filing. You don't have to fill out the variance one because it will fall under the appeal. That way you don't have to file both of them. I specifically asked her that question to make a decision on how to do this, how to file it. Well, I can only rule on the matter that is procedurally in front of me, and what is in front of me is the appeal application that was filed on October 5th that speaks to the September 25th interpretation i don't have anything else paperwork wise in front of me i don't have jurisdiction to rule as to a variance or request for expansion of non-conformity i only have the appeal and mark and i can appreciate that and and that's that's your position i understand that but the reason that you don't have the i guess the proper information in front of you is because i was led astray once again by draper city well i i empathize with uh party's dealings with bureaucracies at times, it can be confusing. I know that having dealt with the city for a number of years, I'm sure it was not intentional. It's just an aspect that happens sometimes, especially in this COVID atmosphere. Misunderstanding, misinterpretation, bureaucracy inherently has issues, but I think we're further aggravated by the present circumstance But I'm sure it was not intentional. I've never had any misdirection from the city in my dealings with them. But all I can do is rule on the appeal application, and that's what I will be doing in getting something out, as I say, sometime mid-late next week. But with that, I'm going to go ahead and conclude this matter. 2.34 p.m. on the same day of Thursday, November 5th, the year 2020. Thank you. Thank you, sir. Goodbye.