Can you hear me? Is that better? My name is Tim Pack. I'm the appeal authority for Draper City. We're on the record in the Trailside Town Homes appeal, the application for sidewalk deviation. Anyone who plans on presenting or who would otherwise like to be recognized, please make your appearance. Mike Barker representing Draper City today. Brent Bateman representing Icon Development. David Tillotson representing Icon Development. Yes? No, so there is no public comment. Yeah. Jennifer, do we need to recognize anyone else in the room for the record? No, so I'll just state we do have, so I'm Jennifer Jastrzemski, I'm the planning manager here. We do have some other staff available as well from our planning and our engineering divisions. So just staff and then any of the applicants party who would like to be recognized. Okay. This is David Tillotson. My partners, James Wheatley and John Wheatley, are here as well with Icon Development. Great. I think we're ready to proceed. Mr. Bateman? And it might help, before you proceed, I'll kind of give you some initial thoughts of things that I've been thinking about. Great. The city raised an argument, the may versus shall. language in 932.30 . And what that means for my interpretation of the ordinance. And that goes kind of hand in hand with the discretion question. So if you could talk about that. I know you didn't have a chance to do that in your brief. I have, well, let's just start, start wherever you want. That was kind of a threshold issue that I thought. No, I appreciate that very much. And I appreciate you being here and you're participating in this hearing. And I appreciate that it sounds like, you know, you have read the briefs and so forth. And so we don't need to go into too much detail about the facts. Let me know if that changes for any reason. But I'm grateful for that. That discretionary question was actually the first of three things I wanted to address. And so, um, I'll just kind of go ahead and, and, and go through that list of things and make my arguments, but I don't mind being interrupted at any time. So if you have questions and I will interrupt you. Great. Um, there's no question that the, um, city ordinance says the word may, and there's no question that the city ordinance saying may, uh, is a, uh, discretionary word. And obviously what they're trying to do here is they're trying to give their, um, city, their planning commission. The ability to look at this development, look at the development that comes along and make a decision based on how they feel about it. Do they like this? Do they don't? The obvious corollary to that is if an application comes along and it meets all the criteria and say even it meets all the criteria gloriously, the Planning Commission in this case can still say no to the deviation. The problem with that is that that's just not how it works with administrative decisions. Administrative decisions are objective. Administrative decisions do not have that level of discretion. And so while I will tell you that there's no question that that word may gives that level of discretion to them, my argument is that that's not legal, according to state law, to have that level of discretion. They have criteria in their code. just like with all administrative decisions. If a developer comes along, or if anybody comes along and meets that criteria, it has to be granted. The discretionary time comes during legislative decisions. When they put something in their code, they're saying, we want to do this, and here's how we're going to do it. They just don't have that ability to say, you meet all these criteria, but we don't like to look at your tie, or we agree with what the public has said, or whatever else. They just don't have that discretion in the state law in an administrative hearing, in an administrative decision. This is an administrative decision. They have listed their criteria. And yes, despite the fact that it says may, my argument is that is not legal. They have to decide under the state law in line with that criteria they made. There's no other way to read that, especially in light of the state code statute that says that you have to say yes to a developer unless your code plainly restricts, plainly restricts, you know, what the developer wants to do. Plainly restricts to me means it has to say, the code has to say, no, you cannot do that. These guys could take the deviations out of their code. Draper City could do any number of things to say what happens when you can have a deviation, when you cannot have a deviation. They could do any number of those kinds of things with their code. But unless it plainly restricts, you have to say yes in an administrative decision. It says that in the state code. And that is irreconcilable with the idea that the Planning Commission can just look at those criteria. Those criteria can all be met, and they can still say no. You just can't do that. That's just not how the state code works. And is your argument just based on the language of a code provision, or is there any case you're aware of that has dealt with this issue of discretion on administrative decision? That's a great question, and I don't know of a case that's talked about that, except for just the ample amount of case law. that talks about the difference between a legislative and administrative decision. And it talks about how a legislative decision is a policy decision. That's the time to decide what you want and what you want your code to say. And an administrative decision is not a policy decision. And that's what they're trying to do here. They're trying to make an administrative decision a policy decision. And there's ample case law in Utah that I can I can cite to you supplementally. I mean, I'm sure you're aware of a lot of it. But that's how it works in Utah. The second point I want to make concerns the review on the record question. One point that they made in their briefing is that as administrative hearing officer, your job is to review the record. and decide things based on what's in the record. And there's no question about that as well. However, I will say that the argument that they've made that there's nothing in the record about any of this fails because, well, let me put it to you this way. My clients probably should have come and presented the kind of evidence that was in our brief about individual roads. Having done that, all that evidence was still there. You know, the plans were there. This had been reviewed at length. You know, we know where from the plans, we know where the sidewalks are and where they aren't. We know from the plans, you know, how we can look at the plans and see how the circulation works, right? we can look at the plans and we can see where the drop-offs are. All those kinds of things that matter here. And the idea that you cannot consider any of the arguments that I made is just wrong because we're looking at the record. And frankly, that argument is no worse than their argument, which is that they provided substantial evidence by finding in line with the staff report. Their decision, the city's decision, has no evidentiary support for their findings. The staff in their brief here said, well, they found in line with the staff report, well, that's true. But first of all, that's not citing substantial evidence in your decision. You have to fish in the staff report for that evidence just as much. as I'm arguing now, that maybe you have to look around through the plans to find evidence and support. But in this case, if you don't want to fish, which I don't blame you if you don't, and maybe you don't have to, but in this case, it's their responsibility, it's our burden to show that they're wrong, but it's their responsibility to, in their decision, cite substantial evidence in support of their decision. And let me ask you about that. Where is the requirement in the code, Utah code or the Draper code, that planning commission has to cite to evidence in their decision? It's in 109A, and I think it's 805 or 6. And I'm sorry I can't give you the exact code. But that provides the standards for making an administrative decision. And what it says in that section of the code is it says, That administrative decision must be supported by substantial evidence is what it says in the record. And so you interpret that to mean that the Planning Commission has to make findings of fact citing to the evidence, not just that the evidence exists in the record? That is correct. That is correct. The decision has to be supported by substantial evidence in the record. That's not to say that That's not to say that a local government can't cite to where the substantial evidence is. And that's what they've argued that they've done today. But they can't just say, we are making this decision. We think there's substantial evidence supporting this. Prove that there isn't. Because that turns it back on us to prove a negative. And honestly, it gives us nothing to appeal based on. And you know there's an appeal right here. But in order to have that appeal right, they have to be able to say, this is what we're making the decision based on. So let me ask you another question. So let's assume hypothetically that there is substantial evidence in that record. Right. It doesn't have to be this case. It could be another case. And the Planning Commission does not cite to that substantial evidence in their findings. On the appeal before me, am I prohibited from going through the record to locate that substantial evidence, or am I restricted to the actual findings, if any, made by the Planning Commission? That's a great question. So if I, the way I read the Draper City Code, and I'll bring it up here if you just give me a second, but the way I read an appeal for the Draper City Code, can you read that out, Jim? That would be really helpful. Yeah, which section are you looking at right now? The section that starts about, that talks about the appeal standard of review. This is, I'm talking about the Draper City Code, not the state code. Is that 9-5-180? Is that what you're looking for? I think so. Okay. Let's go down. It talks about the standard of review. There it is. Okay, right here. The appeals and variance hearing officer shall conduct a hearing based on the record only, taking no new testimony or new information, but relying solely upon the information and final decision of the officer or body from whom the appeal is taken. I read that as saying that you're stuck with the final decision. I understand that it says upon the information and final decision. You can take your own counsel on that. But it does specifically say relying solely upon the information and final decision of the officer or body from whom the appeal is taken. So you're stuck with that decision, in my opinion, which means you have to find in there some evidence, some findings of fact, something that supports their decision. It doesn't have to be much. I'm sure you're familiar with the substantial evidence standard. So in the first sentence when it says the officer shall conduct a hearing based upon the record only, the record only being the final decision of the officer and not the evidence submitted? Well, the evidence submitted would be in the record. There's no question, right? And I'm not going to take issue with that. I'm going to take issue with the fact that that it says the final decision of the officer or body from whom the appeal was taken. And they have to provide some substantial evidence. They didn't even cite anything except for say we decide in line with the staff report, which I want to point out, and this is kind of the third point that I wanted to make. It's not in there. As a matter of fact, the staff report says with the exception of a couple of buildings, there's great pedestrian circulation with this plan. Even if you were to say, OK, we'll go to the staff report to find support for their findings, it's not in there. The staff report was actually pretty favorable. We'd be the first to admit that there's a couple of buildings where sidewalks need to be put. There's no question. And this blanket denial maybe was based on that. But what I'm telling you is that this idea that you're going to find a lot of substantial evidence in there for this denial is just not in that staff report. So let me check my notes and see if there's anything else. So that's it. So, you know, with the greatest respect to the city, and I mean that seriously, you know, this city, very unusually, doesn't make recommendations to its planning commission or to its city council about... what way that the staff thinks it should decide. In this particular case, if you listen to the hearing, and you especially listen to the questions that were asked, it's clear from the questions that what was on the council's mind was finding a way to say no to this in the face of public opposition. Their questions were all about the things like traffic and density and stuff like that that the public were bringing up. Their questions, for the most part, weren't about these variance standards, right? We can show that in least most cases, the variance standards can be met. And the idea that we can show that and the city should be able to just disregard that and say no anyway, that's the equivalent of saying we are reserving the right to make this decision based on public clamor. That's the equivalent of that. And that's why we made that claim. That's my argument. OK. And one question on the public clamor. Did the commission cite any specific public clamor as a basis for their decision? Or is this just because there was public clamor and because I would say not. If you don't mind, I'm going to have my client respond to that. So this is David Tillotson with Icon Development. So I'm not an attorney, and I haven't taken a project through Draper City before. But like Brent was saying, as we expected and as we were told by staff and as evidenced by staff comments, the Commission would carefully evaluate each individual area, and a deviation request would be granted according to each individual area. But in terms of the comment, listen, I'm just going to call a spade a spade with the public clamor. The fact is, is the Commission's questions, like my attorney was saying, evidence what they were focused on and why they ruled the way they ruled. Their questions were not focused on the criteria, and the Commission never really even discussed the criteria. Commissioner Tonks, Bingham, and Squire were clearly against this project from the very beginning from their comments. And Commissioner Bingham even stated that if he could stop all development, he would. On public record, he said that. To say that he wasn't influenced by the public clamor when he makes a statement like that is a very tough argument for the city to make. I have one more question. This might be for Mr. Bateman. So you're saying the commission didn't even raise the criteria. Can you show me or can you cite any point in the record where the applicant cited to each of the requirements? Yes. So the criteria in the code, it was in the staff report, it was in our presentation to planning commission, and it was in staff's presentation and brought up on the screen in the meeting itself. My question is maybe more specific, sorry, is did the applicant, when the applicant was giving its presentation, did it go through each of the elements and try to explain to the commission, here's element number one, here's why there wouldn't be connectivity, things like that. Did that happen? We did not, and that's probably a 2020 hindsight thing, where in our presentation we should have focused more specifically on each individual area. We were told they were going to discuss that. Unfortunately, we did not have that in our presentation, but we were expecting to get questions on that, which we never did because commission was focused on public clamor, quite frankly. Last question for me, sorry. What is my role to comb through the record to determine whether there's substantial evidence? I understand maybe... And I don't know if you want to take this, Brent. You're arguing that I cannot do that. I'm restricted to the actual decision. But if I decide that that's not my role, am I required to go through the record, comb through it, and do all that work? I would answer that by saying you have the same responsibility as an appellate court has here to do that. And you're a litigator. You know the answer to that question based on that answer. The appellate court is unlikely to do that. They want to be told what happened. They want to be pointed to the record and so forth like that. When we go back to the hearing, like my client just said, we maybe should have done that and we didn't. But the city today is asking you to do the same thing. So you're either going to do that, you either have to do it for both sides or neither side. Yeah, and I understand that before a court of appeal, they're not going to do that. But if both sides agree that that's kind of my role, I will do that. I don't want that to be, I don't want to skip over that step if this is just going to be appealed to the district court on that basis. But anyway, if there's anything else. Nothing else for me. The other thing I would add in relation to the public clamor that my partner just brought up is there were multiple areas that Planning Commission brought up as it relates to traffic, environmental, areas that we had done significant work with staff on and were in the staff report. And by Planning Commission bringing up things like that, and I think it was Commissioner Tonks making statements like, Did they actually drive up and down the road? All that is doing is enraging public clamor and making the situation even worse. I have one more question. I'm sorry. You're good. That's why you're here. Getting to the substance of the elements. Element number one is the second sidewalk or portion of the sidewalk does not provide pedestrian connectivity to any units or amenities. When it says connectivity to any units or amenities, what does that mean? Does that mean if a second sidewalk existed it would directly a but to an amenity? Is there some sort of buffer? What does that mean? Does that have to be close to an amenity? What it means in Draper City is definitely a question that I hope that you ask them because I'd like to know that myself. To me, I would interpret that to mean you can get there. It's connected from the building to the amenity. There's a way to get from the building to the amenity safely. That's what I would say that it means. My other question on that first element is the way I interpret it, I just want people's opinion if I'm wrong, is that if a second sidewalk were to be installed, it would not connect to any amenity. Am I looking at that correctly? It would not add connectivity to any amenity. What do you mean? Is there a difference between adding connectivity or actually connecting? The criteria is met if you can get to and from an amenity between a building and an amenity, you've connected. You've had connectivity. You can add connectivity that's circuitous, if you want to. You can say, the building's over here, but we want to walk this way to get to it. But that's not what the criteria require. It just requires connectivity. So if a sidewalk, a second sidewalk, even if it went... like a mile out of the way, as long as it connects to two, it would have connected to two amenities, then there can't be a deviation, right? No, that's the opposite of what I'm saying. Okay. What I'm saying is that there has to be a deviation if you have connected to the building. If you wanted to add a second sidewalk that goes around, you know, and makes you walk for a mile before you get to the next amenity, that's fine. The question is, can the city require that? And my answer is no. They cannot require you to connect both the easy way and the hard way. They just, all it says is connect. Okay. Is that responsive to your question? Yeah, I think I understand that better now. Okay, thank you. Thank you. Good morning. I feel like a fish out of water. I was joking with Mr. Bateman before the hearing is I haven't had a job interview or had to wear a suit in so many years, I don't even know what the protocol is anymore, so. The joke's on you, I guess. Yeah, the joke is definitely on me. You look good. Thank you. Do you want to start with questions or, I mean, I've got some. My questions that I asked Mr. Bateman are kind of where I'm focusing on. Sure. But if I've missed something, now it's your show. Let me address the issue of public clamor first. I was not at the hearing. I was out of town. So the assistant city attorney conducted or sat in my spot to advise the planning commission that evening. So I listened to the tape of the meeting on Thursday of last week and took notes. And based on what... My colleague had told me I was expecting literally hours of public comment, numerous comment, et cetera. But that's not what the record shows. A total of six people spoke. And they spoke on a wide variety of topics, ranging from the impact that this development would have on schools, on roads, on they didn't like renters or rentals, that somehow this project doesn't fit in with the local area in terms of single-family residences versus townhomes and multifamily. My recollection is that one, the last woman that addressed the Planning Commission talked about sidewalks, but it was a very brief comment, and it was in terms of in winter, the kids need a place to walk because of the additional snowfall that Suncrest area in general receives. sidewalks were needed for safety purposes but it was very brief and quite frankly a passing comment. The conclusion I drew after listening to the hearing is that the people that spoke were not interested in the sidewalk deviation because their comments didn't address it. They wanted to kill the project and Mr. Bateman and I agree and we've never argued otherwise is that this project has a vested right under an MDA from 2015. So they're allowed up to 160 I believe it's townhomes and their plan has a few less than that. So that's not even an issue and that really wasn't even a possibility for the planning commission that evening is to just kill the project because for the reasons outlined by the public. Now One point I want to make, and the two ideas seem to have been joined together today, is the sidewalk deviation is a subset of the site plan. And so for the Planning Commission to ask questions about traffic, density, et cetera, are all appropriate questions in terms of addressing a site plan, because every site plan has to comply with our code, and I'll be the first to When I say I'll be the first to admit, it's almost like I'm sheepishly doing it. No, state law is if a site plan complies with our code, it's entitled to approval. That's where the public clamor was is kill this project. And my notes show that Commissioner Squire, who has been cited for some reason I want to say this afternoon, this morning, as being against this project, went out of her way, and I can get you a timing reference, roughly about two hours and 20 minutes into the total meeting, not into necessarily the item, the trail site item, but two hours and 20 minutes into the meeting. She took a moment to address the public and indicated to them what the scope of the Planning Commission's authority was and what areas in a site plan that they've got discretion, if you will. And she concluded by saying that if a site plan complies with our code, we as a planning commission have no choice but to approve it. And so this idea that she was against the project and that clouded her judgment is not borne out by the record. She clearly stated that they're bound to approve a site plan that meets the code. The interesting thing is there's almost been a shifting of burden today in that site plan's entitled to approval if it meets our code. And so for the Planning Commission to deny a site plan, they would have to show on the record that one of the factors, one of the land use regulations is not being met. For instance, buildings aren't the correct height or setbacks aren't correct. massing isn't correct. I mean, there's a whole variety of things that we look at when we're dealing with site plans. But in order to deny a site plan, the burden would be on the Planning Commission to show that there's something in the submission by the applicant that does not meet the city's code. Now, Ms. Jastrzemski at the beginning of this trail site item went through the staff presentation, pointed out where the The site plan complied, and quite frankly, it complies in everything except sidewalks and the building materials. And so, you know, as per our code, the applicant had asked for deviations in those areas. Gosh, I've just sort of talked myself into a corner here. Oh, the burden. So at this point, and as Mr. Bateman rightly points out, staff in the staff report outlined what the, we'll call them the four factors are for deviation for sidewalks. And then as Mr. Bateman also points out in the staff report, I believe it's on page five, indicates that the applicant had submitted a, I believe it was Exhibit K, so whatever the applicant had submitted regarding that deviation was included in the packet that was given to the Planning Commission. Like I said, I believe that's Exhibit K. She also frankly points out that generally the connectivity is fine for the project. Let me just get her words here. Actually, it might have been actually Marion Pickering that did the staff report. Regardless, I actually know it looks like it was Mr. Strzemski. She points out the two buildings don't have a sidewalk running in front of them, and I believe Commissioner Squire asked the same question. If we look at, can we, let's see here. I believe it's page four. So this is the site circulation plan that was submitted and was presented to the Planning Commission on that evening. And I believe Mr. Schremski was referring to the, I call these the west pod, the center pod, and the east pod. But in this south portion of this western pod, she points out in the Planning Commission, there is no sidewalk connectivity in front of those units. And then she also says all other units have ample pedestrian access. And so the point I'm making is that the applicant had the obligation to provide evidence to meet each one of those four factors because the default is multifamily projects have to have sidewalks on both sides of private streets. So that's where we started the default. And if a deviation, the Planning Commission has the authority to grant a deviation, but there has to be evidence of all those four factors. And I would argue that the Planning Commission thoroughly discussed this project, discussed sidewalks, discussed internal connectivity. They talked about what these walking trails were, what their surfaces were, are they going to be plowed, et cetera, et cetera. But the applicant did not provide the Planning Commission I guess you could say substantial evidence for each one of those four factors. And I'm going to point out, you've asked whether or not you need to be going, combing through the record. I disagree with Mr. Bateman's interpretation of the code that the 95180 that talks about. the hearing. But let me point out, so there's four factors. And the first that you've already discussed with Mr. Bateman, the second sidewalk, and actually I'm going to pull that back up because I think, well, let's see here. Yeah. Sorry. Okay. Okay, so it's in D4D. Here we go. Or D4, excuse me. So this first one, Commissioner Squire pointed out in her question in the staff report points out that there are not sidewalks in that western pod, the south portion, south side of that western pod. And even looking at the site circulation plan in the center pod, there's areas that also aren't serviced by sidewalks. And so the applicant in its presentation did not provide adequate information evidence to the Planning Commission that they could make all four of those findings, which they are required to do. They have to find all four in order to make the deviation. Do you have any questions at this point? Can I ask the same question, Mr. Bateman? So number one is I thought I understood it. Now maybe it's confusing me a little bit. Okay. So maybe it would help if we looked at... one of the areas that's in question, like Horsetail Lane. Let's look at that. I'm sorry, this plan here? Yeah, I think so. It's the one on the east side, the street on the east side. Over here? That's the first one, yeah. Okay. And then, let me find. The second sidewalk or portion of the sidewalk does not provide pedestrian connectivity to any units or amenities. So when it's talking about the second sidewalk, it's talking about the sidewalk that doesn't exist, right? I would assume so, yes. I think that's accurate. The sidewalk that they would rather not install. That makes sense, yes. And so when analyzing that element, I have to assume that it has been installed and then conclude whether or not it provides pedestrian connectivity to any amenities or units. So in my mind, if the sidewalk were to be installed and if it does connect to an amenity, then there cannot be a deviation is how I interpret that. Am I wrong about that? And I want to give Mr. Bateman another talk about that. Does that make sense? Yeah. Let me maybe look at it from just a slightly different angle. I think the purpose of that first factor, and I'll put that back up. Because it doesn't say connect. It says provide pedestrian connectivity, which is a looser term. Right. So in other words, I think the idea is that you... We don't want to require sidewalks that lead to nowhere. The opposite being, I think, the point that you were making in that if there's an amenity or a unit, there's got to be a sidewalk that connects to it. In other words, let's say there was, for whatever reason, if this were a detention basin or whatever it is, and there was a sidewalk to it for some reason, because there was a road, let's say an access road or something that went down there, but it's not considered an amenity, it's not considered a unit, then I think that's evidence of number one. Okay. Does that answer your question? I'm still thinking about it. Sure. It doesn't, but anyway. Oh, okay. Talk about this issue of discretion that the Planning Commission has because of the use of the word may in 9-32-30. I can bring that back up here. Right, right here. You're talking about may permit a deviation. And Mr. Bateman... argues that, well, there's two types of land use decisions. There's administrative and legislative. And legislative are policy decisions, and those can be very discretionary. Administrative decisions cannot. And essentially what I think he's arguing is that it says may, but it should be shall, and I should interpret it as shall. Right. And I would first point out that our argument does not hinge on that may, quite frankly, because I think that the city's argument is that there has not been substantial evidence on all four of those factors. But getting back to your question, my thought immediately when you asked Mr. Bateman that question is that state code for plat amendments, 10906091A, uses may. I don't have the language memorized, but basically the land use authority may approve an amendment to a plat if there's good cause. And so this idea that you can never have a May in an administrative decision, I think, is not borne out even in state law. I don't have the case in mind, but, you know, it's interesting because I was always under the impression, and I'm going back to that 1098609.1, or excuse me, 1A, where if there's good cause, then the Planning Commission would have to amend a plat. And we've got a situation on our eastern border down near Alpine, and Alpine City made some decisions that a developer appealed, which had implications on their property in Draper. So his property was in Draper but shared a boundary with Alpine. And long and short of it, the city ruled against – The developer and the developer went through the same type of hearing that we're having today. And their hearing officer in Alpine wrote an opinion, which I thought was interesting because it introduced this idea that May actually is discretionary and that the hearing officer in Alpine hung his opinion on the fact that even if good cause was shown, it's still a May. Now, I've never encountered that position before. And I don't have the, unfortunately, what I'm saying is I don't have the case in front of me, which I'm happy to provide the court. But my point being, it's not unprecedented to have a may in an administrative decision. And let me kind of tell you, my kind of thinking is, so it's their burden to show that the decision was arbitrary, capricious, or illegal. And to do that, they need to... make an affirmative showing that there was substantial evidence in the record. But if the decision by the Planning Commission to grant or deny the application is discretionary, it seems to me to read out of the statute the requirement to show substantial evidence because whether there is substantial evidence or not, you're arguing that it's discretionary and they could make a finding based on no evidence. Is that your position? Because it's discretionary. Yeah. I mean, I'll be honest. I wish it didn't say that. It does. I mean, that's what we're stuck with. I mean, yeah, I've got to argue that that's what may means, and it is discretionary, and I don't think that it's contrary to the law. If I can just point out where I believe there is substantial evidence, during the, I believe it was during questions to staff, excuse me, no it wasn't, it was, actually it was during questions to the applicant. So around one hour and 43 minutes into the Planning Commission meeting that evening, Once again, Commissioner Squire asked, actually made this specific statement, there's no sidewalk access to the amenity deck on the eastern portion, which I'm assuming she meant this portion. There's no, so there's access to that amenity, the play lawn in the east, to the pickleball and the clubhouse pool and spa in the center. as well as to the amenity deck in the western pod. But she pointed out specifically that there was no sidewalk that led to the amenity deck in that eastern pod. And as I pointed out, there's no sidewalks in front of units in the western pod. Let's see. If I can just check my notes just for a moment here. I guess I would just point out is that this project, both in terms of DRC meetings, staff interaction with the applicants, and then at the Planning Commission, was well vetted. The applicants were given whatever time they needed that evening to make their points, quite frankly, to meet their burden of the four factors. And the city's argument is they didn't, and the Planning Commission made the correct decision in denying the deviation. And I would point out, maybe if I can just create a hypothetical. If an applicant came in and wanted a deviation, let's say, for sidewalks, but presented zero information before the Planning Commission that evening of anything regarding sidewalks. It seems that what's happening here is the applicant is trying to put the burden on the Planning Commission to elicit this information in order to be able to make its decision. The city's argument is the burden is on the applicant to show the Planning Commission, yeah, we meet these four elements and we're eligible for a deviation. I also make the other point is that through the briefing, the applicant kind of puts the hearing officer, you, in the position of the Planning Commission by going through in great detail the various streets in the project and how each one of those streets meets the four elements. But that wasn't information provided to the Planning Commission that evening, and I don't believe the Planning Commission's obligation is to... delve deep into, you know, here's what you're asking us to do. Show us that we should do it. And that's quite frankly contrary to a site plan where it's the planning commission should have evidence that all aspects of the code are being met in order to approve a site plan. So there's a little difference there. I would argue that if you're inclined to reverse wholly or I guess in part, that you actually sent it back to the Planning Commission to conduct that street-by-street analysis as contemplated in the appellant's brief. But I don't believe that's necessary because I don't know that you as the hearing officer are in any position to make a street-by-street analysis either and put yourself in the shoes of the Planning Commission to consider information, quite frankly, that wasn't presented to the Planning Commission, as we pointed out in our brief. And I don't know the answer to this. As the appeal officer, do I have the authority to remand to the Planning Commission to reconsider this and make further findings? Well, that's a really good question. That's something, quite frankly, I've contemplated. Let's go back to this. Or am I limited to just saying, call it a baller strike? Yeah. Well, I think 4B... Although it's probably not artfully done, I think that's where, you know, the decisions are. Although I will admit there is the ability to modify a decision. I mean, we could cite the state law where at the district court level they can remand back for, you know, further... I think we are bound by what's in 4B. Do you have any other questions for me? I have more of a procedural question. I kind of am forced to comb through this record if I get there. Is there any of, do I have the right to request supplemental briefing from the parties? Say, hey, I'd like you to cite to the record to support each element here. Or I'd like you to do a little supplemental briefing, citing to, give me a case or a statute that tells me more about the may versus shall discretionary issue. Do I have that right to ask that? I think you do because I think there's issues of due process, quite frankly. And we, the parties, we submit our briefs based on what we think the case is about, if you will. But often as we get to a hearing, sometimes a court and sometimes a hearing officer will ask questions that we hadn't considered. And I believe if those go to the heart of the matter that you're supposed to decide, then I don't see a problem with that. with supplemental brief, excuse me, briefing. Yeah. And if, since this is up, and I keep kind of backtracking here, but there was a discussion between you and Mr. Bateman about the meaning of this first sentence in number four here. And I think it goes actually back to your point you just made. I think you are eligible to go back because I think solely upon the information basically that's the record. What what what information did the Planning Commission have at its disposal and quite frankly to your point I think I think it's a job that Mr. Bateman and I could do. I mean is we should be the ones if you do have questions about specific issues it shouldn't be your task to go back and find. I mean if you want to do supplemental briefing I think that's a very good reason why to do it. But I believe what the first sentence in Section 4 is trying to say is... Let me stop you there. Sure. I agree with your interpretation that when it says, but relying solely upon the information, I interpret that to mean the record. Right, I agree. But conversely, too, you know, in Mr. Bateman's appeal, he's free to make any new arguments he wants as long as that's based on the record. I would agree. Right, so the record is what the record is, and how creative or either side gets in making arguments, I think that's wide open. But I think the point of the first sentence in number four is that the record is what the record is, and both parties, as well as the hearing officer, are bound by the information contained in that record to make arguments or a decision. Okay, thanks. Thank you. I just want to respond to one thing, and then I want to say a few things based on the maker proposal. One thing I want to respond to is this idea of may or shall. I don't know that we need to beat that to death. I don't know that either of our arguments necessarily live or die on that. Mr. Barker is a good attorney, and he did a great job bringing up the – plat amendment code that talks about May amend a plat for good cause I just want to point out that That code section is archaic in 2006 Ludma was amended and It's at that time that the legislative and administrative decision making one Discretionary and one not was added in that part of that's in the subdivision code wasn't changed. It sort of kept the old language. But it only applies to the subdivision code. Everything else has been changed. And so although he makes a good point there, it's not applicable here. It's archaic language that only applies in that instance. Having said that, I want to go back to that map. This is great, this mouse thing. So I'm going to be honest and straightforward and direct with you as I can. This is how I like to practice law. And this is, I think, something that, well, let me put it to you this way. If we were to concede that you, that it's your responsibility to go through the record, I think I can save us all a bunch of work and time by proposing to you something that I think that you'll find that is strongly supported by the record. And if you want to bring Mr. Barker back up here to comment on that, I have no objection. And this is me being as honest as possible. So over here, there's no question that I think the Planning Commission was correct. I don't think that this has the sidewalks that are needed and the ordinance should apply. And for you to find that, honestly, would not cause me any heartburn. Is that Zen way? Yes. So you're not holding anything, but you're proposing withdrawing the appeal on that? Well, yeah, or you could uphold that, the appeal in that way. And again, if we're going to the record, and the point you just made is a good one, if we're just relying on the record and what's in the record in general, You know, our arguments about individual streets ought to be considered as part of that. Okay? And so I just don't think there's any question that upon looking at it, that's what you're going to find. And to uphold the Planning Commission on that street gives me no heartburn at all. I think in this area right here, I think it could go either way, honestly. And because it can go either way, if you were to uphold the Planning Commission there, I would be... disappointed but not surprised in this area right here but I think there's two respects here where you could overturn the Planning Commission and remand and the question of remand by the way I do think you have the authority to remand whether their ordinance says or not that you do if you do not have the authority of remand at least their ordinance says you have the ability to modify the decision which means that if you're not going to remand, then, yes, you do have to step into the shoes of the planning commission and make that decision yourself because it does say modify the decision. So those are your options, remand or step in the role of planning commission and make this decision. Right here along here is a sidewalk to nowhere. That doesn't connect to anything along here. It would be along here, right? That's a sidewalk to nowhere, and I don't think that – anything in the Planning Commission did or anything in the record supports that. And over here on Horsetail, I think the record would probably support extending this sidewalk down to this amenity deck. There's a crossing here, right, and that's why we feel like it provides circulation. But along Horsetail right here, not only is that a sidewalk to nowhere, but that's a safety hazard, a serious safety hazard because of the slope. So what I'm proposing is, and, you know, you do what you think you need to do. Yeah? We're still also along here. It's a safety hazard. Same, right? Yeah, same thing. Thanks. What I'm proposing, and I think your digging into the record will support this, is a remand or a decision overturning the Planning Commission's decision on these right here, on this right here, and on this right here. That's what I'm proposing. And that's what I think that the record will support. And that's just me being as straightforward with you as I can. What is your position on supplemental briefing that would actually cite portions in the record that says there was substantial evidence to support the horse? What is that one on the right? This is horsetail over here. Horsetail. There is substantial evidence to support the deviation in horsetail, and here it is. And not necessarily, you don't have to cite to a statement made by anybody, but you could cite to any page in the record. Yeah, so what we would cite to is... My question is, would you be okay with that? Would you object to that? No, I wouldn't object to that. I think that's within your power, and it's... And it's a problem. But one of the reasons I'm taking this approach is to save us all time. Because what we're going to support to is we're going to basically support to is this drawing right here, this picture. And we could also support to things that show the extent of the slope and so forth. But this picture by itself shows that this would be a sidewalk to nowhere. Just an understanding of the slope along here shows Not only is there no point to it, but it could be dangerous, right? And so, yes, if you want to ask for supplemental briefing, I'm telling you what our supplemental briefing will say already. Okay. I don't want to get too, and I asked you about this before, I don't want to get too pedantic about the element number one. So in looking at this map, there's at Horsetail, And let's just look at the section between the west play lawn and the east play lawn. You're talking about here and here? Yeah, yeah. So the sidewalk that would go on the south side of that street. So that sidewalk, if installed, would be the second sidewalk. Right. Right. To grant the application, the Planning Commission would have had to find that that sidewalk does not provide pedestrian connectivity to any units or amenities. But wouldn't it connect those two play lawns? You mean you're talking about a sidewalk along here? Yeah. I understand there's other ways to get there. Maybe even better ways to get there. But I read the section to say it does not provide pedestrian connectivity. Pedestrian connectivity to what? What does this exactly say? To any unit or amenity. Right. Are those play lawns amenities? And would that sidewalk connect those? Play lawns are amenities, yes. A sidewalk along here, not along here, except for down to the amenity deck. A sidewalk along here would connect them, okay? But of course, you know, our argument is because of the slope and because of where the sidewalk is, and because of what it would cause, what it would do to, yes. One of the requirements of the Draper code is to have amenities spread out throughout the site. We have well over the required amenities on our project than is required by city code. We are happy to eliminate that eastern play lawn, but as Brent is making the point, there is still connectivity by as you can see in the diagram, you are able to access via sidewalk. And we are not trying to connect play lawn to play lawn. Really, we're trying to spread out play lawns so there's connectivity between different areas of units with close proximity to amenities. So from a safety standpoint, we do not want those two play lawns to be connected. And that's the point that I was going to make. Additional connectivity here. is trumped by the safety considerations. This would add maybe, if we were assigning a point system, maybe two points of connectivity or five points of connectivity, whereas the safety considerations adds 50 points against is the point. And so there is connectivity. It goes right there. If we want to connect that, it doesn't make sense. I agree with you. Anything else? I don't think so. Thank you so much. What I'd like to do is, and I don't want to have the party spend a whole bunch of time doing this, but to aid in my review of the record, because I do think I need to review the record, is maybe... Two pages of, it can be bullet point. Mr. Bate, it might be pretty quick for you if you're just citing to this page. That's fine. But citation to the record below, that would show there is or is not substantial evidence to support the decision. Try to limit that to two pages. Again, I don't want people to spend too much time. if you could provide some additional briefing, could be a page, no more than two pages, on this issue of discretion of the may versus shall. Because, I mean, the statute says what it says. To me, it doesn't, my first inclination is, well, that doesn't make sense. It shouldn't be may. It should be shall. But that's what the statute says. That's what the ordinance says. So a page, two page of additional supplemental authority on that. When do you guys think you could get that to me? I think you can, do you want to submit it concurrently? Do you want to take more time and have, Mr. Raymond, you submit yours first and then the city review it? I'm fine with just, I think, concurrent submissions. I think concurrently makes sense because it's more direct, it's faster. I'm sorry, makes more sense to do what? Concurrently. Oh, yes, I agree. Okay. Can you guys tell me... how fast you want to, when you want to have that due. Because I'll have my decision out within a week of when you submit that. At the end of the week. Friday. Friday, good. OK. I just want to make sure that's OK. That was on the record. All right. Within one week of today is when those. End of the Friday. OK. End of the day Friday. And both sides? Consent to submitting supplemental briefs. No one objects to that. What did you say? I'm sorry? Both sides. Consent to supplemental briefing and no one objects? No. No. Fine with that. Okay. All right. Thank you very much. Thank you. Appreciate it. Jennifer, anything I need to specifically do to formally close the hearing? I think just to adjourn the meeting. Okay. This hearing is adjourned. Thanks for your time. Thanks.