Minutes of the Centerville City Board of Adjustment meeting held Tuesday, December 8, 2009 at 7:00 p.m. in the Centerville City Council Chambers, 250 North Main Street, Centerville, Utah.

MEMBERS PRESENT
Robert Chamberlain
John Eriksson, Chair
Cory Evans
 Jason C. Hunter
Peter Lassig II

STAFF PRESENT
Brandon Toponce, Assistant Planner
Lisa Romney, City Attorney
Kathy Streadbeck, Recording Secretary 

VISITORS
Justin Baer, Attorney
Robin Barraclough

DETERMINE LEGAL EXISTENCE OF A STRUCTURE – BARRACLOUGH RESIDENCE  –  464 EAST POWELL AVENUE - Determine legal existence of a deck located on the west portion of the home, due to a citizen complaint filed August, 2009.  Robin Barraclough, Property Owner & Applicant.

Justin Baer, Attorney for the applicant, said this is an issue of whether his client’s deck is legally non-conforming. The plan for the deck was originally approved in 1971 and because of the great amount of time that has passed neither the City nor the applicant has any record of the plans or the approvals that were granted. Mr. Baer presented some photographs showing the home and the deck with its awning and stairs for the record. He also said his client applied for and was granted the appropriate approvals for a swimming pool in 2004, a retaining wall in 2005, and a garage in 2007. At that time the applicant provided such applications for approval, the site plans submitted depicted the proposed construction along with a layout of the home including the deck with awning and stairs. These applications and attached site plans were seen by City staff when the building permits for the various improvements were approved.

Robin Barraclough, applicant, said he bought the property in 1969 and submitted plans for a home in 1970, which were approved. Construction began on the home in 1971 and was completed to the point of moving in by late 1971. Although the deck was part of the original plan, it was only partially completed at the time the home was made livable. The deck was finished in 1987, according to the original plans approved in 1971. After one year (in 1988), the applicant decided to install an awning to keep snow and ice off the deck. A City representative saw the deck at that time and spoke with neighbors.  City staff said there were no concerns with the deck or the awning at that time. He said from 2004 to 2007 he received approval for a swimming pool, retaining wall, and garage. City staff reviewed the site plans as part of those approvals which included a depiction of the current deck with awning and stairs. The necessary approvals were granted with no mention of the deck being out of compliance. 

Mr. Baer said it is unfortunate that no written record of the original plans exists today, but plans were submitted and appropriate approvals were received. The City was made aware of the site in 2004 when a site plan was submitted and found no fault with the deck at that time. The deck covering is only an awning and not a structural addition. The deck supports are original and have not been modified. In addition, the stairs were also part of the original plan and should be able to remain. The deck was legal at the time it was constructed.

Brandon Toponce, Assistant Planner, reported staff received a complaint regarding the deck, in August 2009, which in turn began this process. Upon review/research staff found the deck did not comply with current zoning ordinances, as it was found to be within the west side setback. In this case, a determination by the Board of Adjustment must be made as to whether it is a legal non-conformance. As mentioned, there is no record of the original plans or approvals. Davis County was responsible for building permits in 1971 and the only information they have today is that the home was built in 1971 as part of the Sunset Heights Subdivision, plat A. There are no plans that indicate the deck was to be part of the home or that it was legal at the time it was built. Mr. Toponce said there were approvals granted from 2004-2007 as discussed, but the City representatives that may have observed the home at that time would have been inspectors dealing with the proposed construction only. They were not code enforcement officers looking for violations. Enforcement is dealt with on a complaint basis only. This is why there has been no enforcement for so long.

Mr. Toponce reviewed the pictures of the deck, awning, and stairs and their relation to the property line. The deck does appear to loom over the neighboring property. Historically, Residential-Low Zones (R-L) at the time required a 10-foot side-yard setback with no less than 20 feet between dwellings. A deck would have been allowed within that setback as long the setback remains open to the sky. According to the acting Zoning Administrator, during the 1970s, Randy Randall, stated that the interpretation “open to the sky” meant no roof covering. It seems some form of a deck would have been allowed at the time the deck was constructed yet, without the awning, the new Zoning Code was adopted in 2003 making this deck non-conforming. It is for the Board of Adjustment to determine whether it was originally, legally constructed making it a legal non-conformity. If the Board determines it is legally non-conforming, then the deck may remain as is. Staff recommends a building inspector be allowed to inspect the structure to ensure it complies with current International Building Codes. Staff also recommends the awning and stairs be removed as they may be interpreted as a violation of the Zoning Code in effect at the time the home was constructed. Finally, staff recommends that all drainage of the deck must be done on site.

Mr. Baer said he mentioned the City representatives being on the property in 2004 to show that the deck has been in existence for some time and to show that the Doctrine of Laches (unreasonable lapse of time) applies. Enforcement by complaint does not justify the significant passage of time in this case. It is unreasonable for the applicant to keep plans for over 30 years. He said City ordinance states that any deck with two (2) or more sides must conform to setback standards. The deck in question has an awning but is not enclosed on any side. There are blinds hanging from the awning to provide privacy for both the resident and neighbors, but the deck is not structurally enclosed and was allowed within the side-yard setback per the 1987 Zoning Code. He said there is no mention in the staff report as to why the stairs are objectionable. He said the stairs were also part of the original plan and provide safety. He asked the Board to find the deck, the awning, and the stairs legally non-conforming.

Peter Lassig II said, according to the pictures presented, it seems the deck has been expanded outward from the home since the original photos. It also appears there is not a 10-foot setback between the deck and the property line to the west. He also questioned if the lot lines have changed over time.

Mr. Barraclough said the original plans included the specs for the deck as seen today, but the photos only show a portion of the deck because that is all that was able to be completed at that time. 

Mr. Toponce said the 10-foot setback is measured from the exterior wall of the home to the property line. The deck, according to City ordinance in the 1970s and 80s, is allowed in that side-yard setback. What is open to interpretation is whether or not the deck covering would have been acceptable. The lot lines have not changed since the original construction of the home.

John Eriksson said, according to City ordinance in the 1970s and 80s, the definition of a building was a structure with a roof supported by columns or walls for the housing or enclosure of persons. Although the awning acts as a roof for the deck it is not constructed with columns and the blinds that hang down for privacy are not walls for the housing or enclosure of persons. If the deck is not a building, per the definition, then the ordinance does not apply. It appears the City was aware of the lack of guidance regarding decks and patios and this was remedied with the adoption of the new code in 2003.

Lisa Romney, City Attorney, said this is part of the interpretation the Board is being asked to decide. Randy Randall (Zoning Administrator in the 70s and 80s) has given his opinion as to how the ordinance was interpreted (see staff report dated December 8, 2009), but it is up to the Board to provide their interpretation of the ordinances to determine whether the deck and the awning are legally nonconforming. 

Mr. Toponce said Mr. Randall’s recollection of interpreting the ordinance was that decks were not regulated in that they were allowed in the side-yard setback, but they needed to be open to the sky, meaning no roof.

Mr. Eriksson said this is open to interpretation. It is unclear if the roof must have solid walls. The awning may have been legal under the then existing ordinances as the awning is not a structure for the enclosure of persons as required under the definition of building. He said the deck is on the second story, because of this, the setback from the ground level is also not open to the sky. The interpretation of being “open to the sky” may have been erroneous and may not have applied to decks.
Mr. Lassig said the “open to the sky” language in the zoning of 1987 was, per staff’s report, apparently interpreted by then administrator, Randy Randall as prohibiting any covering over a deck located within the setback but not to the installation of the deck itself.

Cory Evans asked why staff recommends the removal of the stairs. Mr. Eriksson said Section 12-21-150(d)(3) says that the Board may approve conditions if the conditions are needed to conform the non-conformity. He said he does not see anything in the staff report that would make the removal of the stairs necessary to comply with standards that existed in the 1970s and 80s. Likewise, he does not see any reason to require an inspection of the deck with regard to water run-off.

Mr. Toponce said from the submitted  pictures it appears the stairs were not a part of the original plans. He also said the water run-off issues have been resolved, but staff feels a condition would help ensure the maintenance of water run-off in the future.

Ms. Romney agreed that conditions should be such that they bring the non-conformity into compliance with the standards that were in place at the time it was originally approved. She said the drainage could be dealt with on an enforcement level and not as part of this non-conforming issue, but she does understand staff’s desire to take care of all issues at once. If there were drainage requirements in the 1970s and 1980s then a condition could be added.

Jason Hunter asked if the Board should address the Doctrine of Laches claim (unreasonable lapse of time). Ms. Romney said the Board could discuss this issue, but it is questionable whether there has been the requisite action or omission on the part of the City upon which the applicant relied. There has been testimony that the City did inspect the property in 1988. Typically, cities are not prohibited from enforcing their zoning codes even after a lapse of time, but it cannot be on a discriminatory basis. In this case, the Board could address the Laches claim, but it should be in addition to their determination of whether or not the structure legally existed in the beginning. Ms. Romney suggested that the Board should not base its decision solely upon the equitable claim of laches.  She also noted that the applicant is required to bring forward all legal arguments at this stage so they can preserve those for appeal at the district court.

Mr. Hunter asked if a deck required a permit in 1987. Mr. Toponce said, according to the 1987 zoning ordinance, decks were allowed without a building permit.

Mr. Hunter made a motion for the Board of Adjustment to approve the legal existence of the deck with the awning and the stairs, found in the side-yard setback and constructed on the west portion of the Barraclough home, located at 464 East Powell Avenue, with the following findings.

Reasons for Action (findings):

1. The Zoning Ordinances in effect at the time of construction did not prohibit an awning or stairs to be constructed in the side yard setback and did not require a building permit.
2. The stairs appear to be needed for safety of the deck.
3. The awning is not a roof structure supported by columns or walls for the housing or enclosure of persons and does not constitute a building as defined under the then existing ordinances.
4. The applicant has presented evidence that the deck was part of the original plans for the home.
5. The deck and awning may be considered to be open to the sky because they are not fully enclosed. 

The motion was seconded by Mr. Evans.

Mr. Evans made a motion to amend to include the following condition:

1. An inspection of the deck and its supports shall be conducted by the building inspector to ensure that the deck is in compliance with all applicable safety and building code requirements, particularly as to the location of a hot tub on the deck.  

The motion to amend was seconded by Robert Chamberlain and passed by roll-call vote (4-0). Mr. Lassig abstained from voting.

Mr. Eriksson called for a vote on the original motion as amended. The motion passed with a roll-call vote (4-1). Mr. Lassig opposed.

Mr. Eriksson directed staff to prepare a written decision for the applicant and to include with that the dimensions of the deck as it is today. Any change or expansion to those dimensions will be a violation of this approval.