Recording in progress.

This might expect you to ensure that it's just next hour.

Okay.

Welcome to the Sandy City Board of Adjustment meeting.

Tonight we have one issue on our agenda.

I think everybody here knows what it is, so I'm not going to spend a lot of time on it.

We will in a minute.

But let me read, even though I've been doing this for 20 years, I'll read the script just so I don't miss anything.

I'm the current chair of the Board of Adjustment.

My name is Brian Jones.

I'm joined by my fellow board members.

We're also joined by city staff members who will introduce themselves when they speak.

As you know, the Board of Adjustment is a quasi-judicial body.

A quasi-judicial means we're like a court, but we aren't judges.

The Board of Adjustment is empowered under state law and Sandy Sandy City ordinances to hear motions for variances and appeals of alleged errors, which is why we're here tonight.

We're not employees, but rather we're citizens who live in city in Sandy City who have been appointed to this board by the mayor with the advice and consent of the city council.

We meet at the call of the chairman, normally on the second Thursday of the month at 6 30 p.m.

here in the city council chambers.

Our meetings are normally preceded by field trip and often by training by our staff and legal counsel, which uh the public may attend.

The training and regular portion of the meetings can be attended virtually or through Zoom webinar as well.

Although we may be sympathetic to the desire and need of an applicant or appellant, we are bound by to follow the law as we all are.

We don't legislate or make laws, that's done by the state legislature and the city council.

We may not agree with the law, but we as the board must follow the laws as they are written.

This means that all requirements of an ordinance must be met before the board can approve a matter brought before us and the uh applicant carries the burden of proof or showing that he or she meets the requirements of the law.

Okay, with that out of the way, let's uh have the Pledge of Allegiance.

Bruce, would you lead us in that?

Absolutely.

If it's to the flag of the United States of America and to the Republic for which is one nation, indivisible with liberty and justice are all.

Introduce the matter and why we're here today.

Yes, thank you very much.

Can you uh put that full screen?

Oh, perfect.

So, yeah, we're uh we have a request for an appeal of an alleged error of the planning commission decision related to the Falls Creek Estate Subdivision.

Uh that's at 2873 and 2851 East Wasach Boulevard.

Uh the original applicant for the Falls Creek Estate Subdivision is Ivory Development LLC.

Uh the request is to review an alleged error by the planning commission and their decision to determine preliminary subdivision review was complete for that application.

Uh the appellate is Garrett and Samantha Lisi, who are represented by Clyde Snow and Sessions.

And so it was to reorient an exit existing parcel line as illustrated here in the red line that shows how it would reorient that so that would provide uh for both of these lots to have have frontage and create through the subdivision process the um uh remnant parcel into a legally platted lot and the appellants are shown in this slide in the house just on the left next to the the boundary there.

This also was in the packet is just another illustration of how the property line was adjusted to change from just one uh platted lot to um two platted lots through the subdivision process and with uh one shared uh street access from Wasch Boulevard.

So this is uh part of the just staff introduction so that we're oriented about the nature of uh this case and the appeal.

And so one of the key things we need to do uh first off with the board of adjustment is determine if the record is complete or not.

Um after that, we'll have a presentation by the appellant, and then staff will uh offer a presentation of uh on the appeal, and then a response presentation by the affected party party, which is ivory development, is allowed to provide testimony, and then finally a concluding response by the appellate.

After that, then the board would have questions discussion uh before making motions in a final decision.

Um this case is uh based on the existing uh record, and so no new information is allowed to come into the record.

So the first order of business is for uh the board of adjustment to determine if you believe that the record is complete and not deficient as demonstrated by the the minutes reports, findings, recordings, etc.

from the planning commission meeting, and thus could be reviewed on the record this evening.

Is there any dispute that the record is complete or not?

Hearing none, I'll entertain a motion to determine completeness of the record.

Is there's that just to us?

Yes, anybody on discussing it?

Yep, oh, yeah.

State right here, don't come up with yeah.

If if you don't think it's complete, let's uh hear why.

Please state your name and address on the record, please.

James Anderson, I'm with Clyde Snow, and my address is in West Jordan.

I'm not a Sandy City resident.

Um with respect to the record, I think that the record provided is what has been provided below.

Um we may dispute whether or not there was sufficient information provided below, but just I'll note for the record that what was provided to the board are the materials that was uh used by the commission.

So with that response.

Okay, thank you.

Now I'll entertain a motion.

I'll make a motion that we determine the record on this decision is complete, not deficient as demonstrated in the reference staff reports, planning commission meetings, minutes, findings, exhibits, and recordings of the planning commission meetings, and therefore the matter could be reviewed on the record.

Yeah.

I'll second that yes, Breiner?

Yes.

Matt Hill?

Yes.

Brian Jones.

Yes.

Thank you.

Uh okay.

Now we would like to have the appellant uh present their case.

Thank you.

Good evening.

Um just as a point of reference, the feedback.

We're just we just live with that.

Yeah, I don't know.

Okay.

Can we do something about that?

It doesn't bother me as long as it doesn't bother you guys.

I know.

Can I do something about it?

Is there a mic turned on over there?

Oh, it's with every mic, it seems like.

Okay.

Well, that's fine.

We won't let it bother us, and we'll just plow right through.

Uh we're a little bit low tech.

We are just passing out the one exhibit that matters to us for our presentation at this point.

And this is um uh essentially what was shown in that slide number four as well.

That you have the only difference between this one and slide number four is that the numbers are not blurry.

So this is the one that I'm gonna review to review or refer to as we discuss what we're doing.

Um as a point of clarification when we're looking at this, there are numbers one and two.

One and two are the proposed Falls Creek Estate subdivision, new lots one and two.

Also on here is something called lot two.

That's the lease's house.

Okay.

So the lease's house is referred to as lot two, but then the numbers just one and two, those are the those are the new parcels sought to be uh developed.

So we are the appellant, um, Garrett and Samantha Lisi that do live here at Lot 2.

My name is James Anderson.

I'm an attorney with Clyde Snow and Sessions.

I'm also joined with another attorney, uh, Emma Tanner, who is also with our firm.

I will do the primary presentation for the appellant, and then it's possible Mr.

Lisi might want to provide a little bit of color during our during our presentation.

As an initial issue, the question of standing has been asked or contested.

So I want to just address that.

In our primary brief, we address the issue of standing to appeal.

The standard, and this comes from Sandy City Code, sections 2135-1 and 2115-3.

The applicant, the city, a board or officer of the city, or any person adversely affected.

Is that better?

By the land use authority's decision.

Can you still hear me in that works?

Okay.

Anybody affected by the land use authority's decision administering or interpreting a land use ordinance may, within the time period provided in this title, appeal that decision to the designated appeal authority by alleging that there is an error in any order, requirements, decision, or determination made by the land use authority in the administration or interpretation of this title.

So in my opinion, it's a very low bar to have standing.

You must be an affected party, which we are being the neighbor, and you must allege that there's been some sort of error in the interpretation or administration of the code.

We do allege several errors, as has been stated in our brief, and I will go through those tonight to explain what our primary concern is with this development.

As you look at the map that I passed out, I don't know how much of the history needs to be addressed, because I think staff has presented that, and I appreciate that.

But as you look at this map, you'll understand that one and two are the new proposed lots of the Falls Creek Estates subdivision.

Yeah, thank you very much for putting that on the screen.

The blue line is that existing property line.

So initially, the way that these lots were laid out is you had this lower lot, this lower triangle, which abuts Wasatch Boulevard.

And that lower lot, that lower triangle shares a driveway access with my clients.

And you can see that, yes, very good.

You can see that in that little faded square right there.

That is a shared driveway access.

There's an easement that's recorded against both of those two lots, my client's lot and this triangular lot.

And that was part of the original Driggs subdivision.

So under the Driggs subdivision, my client's lot two and this triangle is lot three.

The new proposed development is then to take this upper lot, which was not part of the Driggs subdivision.

It was an old remnant of a pepperwood, I think Pepperwood phase 10, and it was designated as non-buildable under Pepperwoods Platin.

So what they're proposing to do is let's take the land of the upper lot, that pepperwood lot, and let's combine it, and then we'll make new lots one and two.

And what that does is that adds a second lot to my client's shared driveway access.

Okay.

So it increases the traffic and increases the burden, it increases the risk and the dangers of having more people making this turn off of Wasatch Boulevard.

The other thing that it does is a practical reality is instead of having one house on that lower triangle that would most likely be set back a ways away from our house, it now is going to put both of those houses much closer to my client's house.

So there's there's real issues as to why my clients are concerned about what's being proposed.

Real livability issues.

To address the road, and this is kind of our our first and primary point of contention of what the commission got wrong.

The road that you see that's in these hash marks going across number one and up to number two, up through number two.

That's the road that we're talking about.

The commission approved that road as a private lane.

But the problem with that is it does not meet the definition of a private lane.

A private lane has to serve only one or two properties and has to be less than 150 feet in length.

Those are two requirements, and it's an and, not an OR.

So it has to be only one or two properties and less than 150 feet.

This is more a private street because this private street serves more than two properties and is longer than 150 feet.

Now, the way that we've measured it, you can see that the road has a curve as it goes up to number two.

If you take the inside measurement, that's that top line.

Yeah, thank you for helping with the cursor.

That top line, that top dash line, is just under 169 feet.

The bottom line is obviously longer because it stretches a little further.

So we know that the road is greater than 150 feet.

Therefore, it cannot be by definition a private lane.

It's impossible.

What it can be and what it must be is a private street.

Okay.

Now a private street is important because it has a different width requirement.

This proposed road is 20 feet wide.

A private street must be 27 feet wide.

And it must have a turnabout or a turnaround.

And those two requirements are not on the plat.

They've not been platted.

And so therefore, this plat as it stands is illegal.

It is a misapplication of Sandy City Code and cannot stand.

It must be overturned, sent back.

If they want to revise it and come up with something else, then that's something that could be looked at when they propose a new one.

But as it stands, it does not satisfy the requirements of Sandy City Code.

So that's the that's the primary issue of why the road can't stand.

Now, there's going to be a question about well, it's only serving two lots.

That's not true.

It's serving three.

It serves our lot because it's part of our access easement.

So again, that little faded square that abuts Wasites Boulevard, that is encompassed in this private street.

So it serves our lot, the numerated lot one, and the numerated new lot two.

So that's three lots.

Because it serves three lots, it cannot by definition be a private lane.

Because it's larger than 150 feet, it cannot, by definition, be a private lane.

It must be a private street.

And in order to be a private street, it has to comply.

So it has to be wider, it has to have turnarounds at the other requirements that private streets required to have.

Perhaps they can satisfy that.

But they need to.

They need to produce a plat that satisfies it.

This in and of itself is erroneous and does not follow the law of Sandy City.

Okay.

That concept of taking a road and dividing it amongst its parts, just can't stand.

A road is a road.

It starts at point A and it ends at point B.

Just because one person only has to drive a little bit of the road to get to their house doesn't mean that that's not part of the road.

Every road doesn't have to be driven the full length.

If my house is at the front, I just drive a little bit of that road.

But it's not a different road.

It's the same road that all of my neighbors have.

So to say that this is some sort of a sectioned off portion of road and can comply is just not accurate.

A road is a road from start to finish, not from where you want to start measuring.

Another point of error with this with this proposed development is it did not take into account my client's rights under their shared access easement.

So again, this little faded square down here at the bottom.

That is a recorded easement that grants my client and what used to be lot three, this triangle, shared access across the entire section to get onto Was Boulevard.

It does not grant access for a third lot.

There is no ability to grant additional access for this third lot.

The city should have required Ivory to come to my client and get consent to modify the easement that my client has before approving this plat.

Perhaps that can be done.

Perhaps discussions between Ivory and my client can come to some sort of resolution that would allow that access.

But again, until that happens, this lot would not have access from the street because my clients do not consent to allowing their shared access easement to be amplified to another lot.

Arguably by modifying the lot legal descriptions, the old Driggs Lot 3, the triangle, has lost access to the easement because the Driggs easement is as to two defined lots with legal descriptions.

But once you modify those legal descriptions and then add a third lot, there's a decent legal question that you may have lost your access entirely because my clients didn't grant access to two different lots or some unspecified lot.

We granted access to one defined lot.

And if that lot disappears, so does your access.

So as we sit here today, the lots do not have access to Wasatch Boulevard because they can't just run roughshod over my clients' rights under the existing easement.

So that's point of error number two.

Point of area number one, it's private street, not a private lane.

Point of order number two, you can't just blow up my client's access rights and add more lots that we don't need sent to.

It's got slope issues and uh you know whatever else is close to the fault line, but whatever else its problems are, it was determined to be non-buildable under the pepperwood development when engineering looked through that.

But as you can see here now, the bulk of the building, particularly on the proposed lot two, would be on the non-buildable lot.

Now they're gonna argue that well, that's an issue for the building permit.

You know, we'll comply with that, we'll figure that out once it's time for building permit.

And that's true that that's something that should be addressed at a building permit issue, but it ought to be addressed on the plat as well.

Why was this determined to be non-buildable before and is now allowed to be buildable?

There's no reason why the applicant shouldn't be required to produce an engineering report that explains why this is now buildable when before it was not.

Okay, because it's a big road, it's a collector.

You're supposed to have 170 feet between cuts into the road.

Now, obviously, the reason for that is because on a big road like Wasites Boulevard, you don't want a whole bunch of people, you know, trying to turn right or trying to turn left at all sorts of different spots along the road.

You want to control where those transition points are to keep the road moving.

As lot proposed lot two exists, it would not be allowed a cut into Wasites Boulevard to simply have its own access.

In fact, Ivory tried to do a cut into Wasites Boulevard and the city shut them down and said, No, you can't do that.

You are, first of all, you're not allowed, but second of all, you're starting to erode the uh the stones and things that keep support for this property.

So they can't just make a cut into Wasatch Boulevard as it sits.

So their work around solution is well, that's fine.

We will just push the traffic down through this new private road, private street that we're creating through my client's access easement and onto Wasatch Boulevard.

Again, that runs roughshod over my clients' access rights.

And it's not proper without additional engineering to explain how that's going to be safe.

How is it going to be safe to have additional cars coming through and serving an additional lot?

There's a reason why this was only a two-lot subdivision under Drigs.

There's a reason why this little access only served two lots.

There hasn't been a safety analysis to explain what's a third lot going to do.

In addition, these cuts that they're making on the dashed lines, and I know we're getting a little deep into engineering, and that's not my intent.

I'm not an engineer, but what I can tell you from broad strokes is as you look at how someone is going to make a turn.

Picture yourself on Wasatch Boulevard.

If you are going to turn in, you're going to make a right turn off Wasatch into lots of my clients' lot or these new lots.

You're going to have to do a tight turn to get up into lot two.

It's gonna, it's a tight little radius right there.

It's a, I think they say it's about a 20 foot, 20 foot radius.

So if you're an Amazon truck or UPS truck, or you're uh you know, uh you're pulling a camper or uh or a trailer or any sort, 20 feet is small, it's very small.

But the way that it would have to work is you would swing out as far as you can onto the entire square, which is over my client's property.

So to make your to make your turn work, you're necessarily going to have to swing around and use the entire square.

There's no way to argue that a person who lives on lot two is only going to use the little bit of access that's granted on lot one.

That's just not realistic.

And that's just turning from Wasitz Boulevard into your house.

Now imagine you're coming out of your house and you want to turn onto Wasitch Boulevard.

You want to turn right onto Wasit's Boulevard.

Well, you are going to be as far, people say it's south and people say it's west, but you're gonna be as far down at the bottom corner of this access easement as you possibly can to make that right turn.

You are not going to stay within the proposed property line of lot one because you're gonna see this 10, 15 feet over here to the right of you, and you're gonna say, well, obviously that's where I go to make right turns.

So to argue that the access to Wasatch Boulevard is safe or prudent, it just can't stand.

That's not a good argument.

You couldn't otherwise have lot two come onto Wasit's Boulevard.

The only way to allow it to come onto Wasitch Boulevard is to push it down into my client's access rights, which we don't allow.

The turning radius is tight, and there's absolutely no way to say with a straight face that the that the proposed residents of one and two are only going to use the 20 feet or so on lot one.

Of course, they're going to swing their cars out onto our client's property because it only makes sense.

If you're a driver, that's what you do.

And there's not a monument, it's not as if there's going to be an island between these two properties.

That would defeat the whole purpose of the access easement.

So if you're a driver, you're just going to assume you get to use the entire space, and you're going to have to use the entire space because it's small.

I know that I have taken uh you know a fair amount of time.

I've hit you with a lot of different things.

Um I am happy to reserve some time at the end for reply to see uh you know what we need to respond to.

Or if I I don't know if it's appropriate if you want to have questions now, you can ask questions now, or we can save them for later.

Uh thank you.

Uh let's hear from the staff and the affected party, and then you'll get another bite at the apple at the end.

Okay, thank you very much.

Great, thank you.

Oh, do you mind if we have a couple of minutes too?

Yep.

Uh gentleman, thank you for your time.

Um presented this very well.

I just wanted to add one brief thing, which is Could you state your name and just for the right?

Garrett Leasey, I'm the appellant.

Um, and resident of 2859 Wasatch.

So the one thing I wanted to add is that it's I think both sides, both parties are in agreement that it's not a private lane.

Okay, because it serves more than two, and it's over 150 feet long, so it can't be a private lane.

I think Ivory's gonna argue, and what they presented to the planning commission is that it's a shared driveway, but it also cannot be a shared driveway because it's over 150 feet long, and therefore emergency vehicles need to get down it, turn around, and access it.

So it can't be a shared driveway either.

That's why I wanted to add it this time.

Right.

Thank you, Mr.

Lisi.

Melissa, are you on for the staff?

Yes.

Okay, so in uh this staff report um we put together um as best we could to articulate the positions of the could you grab that microphone right in front of you?

Just put it closer to your closer microphone.

Yeah, okay.

Yeah, because we just have one.

All right, very good.

So yeah, in the separate part, we went through the arguments uh in the appeal and address those more in detail, but I'll just run through uh those uh right now before handing it over to or to allow time for the uh the property owner uh ivory development to address the issues as well.

Um so on the appeal, one of them, as the gentleman had stated that the uh issue was that the planning commission had mischaracterized the road as a private lane, and it's more than 150 feet in length when it really should be considered as a private street.

Um so the the city code in our response is that it it does allow lots to be accessed from a shared driveway.

Um it does not require lots that have street frontage to be accessed from a private lane or a private street.

Um the citation by the appellant uh referencing when it should be accessed through a private lane, it was when you don't have street frontage was one of the caveats.

And um through this subdivision process, it was proposed that both lots would have frontage.

Um but um our uh public works engineers or city engineered had evaluated uh the street and um it was determined that it was appropriate to have uh the combined um access in terms of the length that was considered by the planning commission and determined to be less than 150 feet, which meets the code requirements.

I think one of the illustrations that was shown there is uh on the preliminary plat.

Yeah, um, because a preliminary plat is not a final plat, and so they include some information there that may not necessarily in the final plat be recorded, but it just should just illustrates how the driveway on, let's see, that'd be the new lot, lot two.

Um just illustrates how uh the driveway would be extended, but the shared part is just on uh in illustration lot one or the existing planning lot.

So um moving forward to the next slide.

Perfect, thank you.

So uh the next one was a subdivision interferes with the lease's rights and obligations under the original private access and maintenance agreement, and in response in the report that um staff had explained that the existing shared driveway with the appellants property will be maintained and accessible.

The shared driveway that would serve the proposed subdivision is on that's on lot three, and the 20 feet that is required for the shared access is all on the um lot number three, not on the LECE's property, and that 20 feet meets the minimum city requirements.

There was also uh claims uh regarding easements are beyond uh the the claims about these easements are beyond the jurisdiction and authority of Sandy City, the planning commission as well as the Board of Adjustment, and lastly, the copies of the easements that were provided in the appeal were not included in the record.

So I'd question that as in terms of the easements were referenced, but the language of the easements, the actual easement was not included and presented to the planning commission.

Another appeal issue that was brought up was the new lot is not buildable and restrictions in the sensitive area overlay preclude development.

And the assertion that an unplated property can never be platted or subdivided or built on is just not supported by law.

Both the Utah Code and Sandy Code allows amended subdivisions, and it's specifically through the subdivision application process that the remnant parcel was proposed to be platted legally and subdivided and included as a buildable lot.

There is a short statement in the original staff report that was part of the record presentative planning commission states that this property is within the sensitive area overlay, and there are 30% or greater slopes that affect the proposed lots.

These lots or areas have been located on the plat, illustrated on the plat with the steep slopes, and as well as the buildable areas indicated, and the city engineer has reviewed the slope study and other geotechnical documents provided by the applicant besides the steep slopes.

There are no other geologic issues that require further mitigation.

And so, and through the slope study, it showed that each lot has the minimum of 5,000 square feet on each lot to be a buildable area, buildable areas defined in the code, and in the sense of very overlay.

And so that was looked at to ensure that there's buildable areas.

So staff found in the planning commission found that that was not precluding platting the new lot.

So lastly, the appeal uh another appeal issue that was brought forward was that the planning commission failed to account for the driveway separation and safety concerns related to access at Wash Boulevard.

So the separation of driveways is not part of the record that's being considered on appeal.

The planning commission did not apply or interpret separation of driveways, and no additional driveways are shown on the preliminary plat.

The separation standard that which was cited by the applicant actually does not apply to single family residential driveways for the code.

Um, and the city engineers review found no safety or traffic concerns to be a result of the proposed subdivision.

It's also in question how the existing uh owner safely access their existing driveway, you know, in and out uh daily, and so if that's a safety concern now, um anyway.

That's um that's basically a summary of the the staff report, and so um in this hearing because the uh original applicant is the uh affected party, uh, we're allowing them to provide testimony.

So at this time we'll just make room for um I can come back.

Did any of the board members have any questions of staff?

Not yet, no, not yet.

Okay.

Um right, thank you.

Uh let's hear now from the affected party, Ivory Development.

Come up and state your name.

So I have this one under the following one.

Great.

So yeah, we can probably just go back if you want to you do the other one.

Yeah.

In fact, if you don't mind, I think I'll I'll start here.

I'll pick up where you left off.

Um so my name is Annalisa Quinn Wilson.

I'm counsel for Ivory Development Development LLC, the applicant in this case.

And I wanted to start here quickly, um, just because I think this is such an important point that I just not to step on your toes, Melissa.

I think it's very important for the board to understand the standard of review here.

Um, this board is not deciding if they think that the planning commission was correct or if they made the best decision possible.

What this board is deciding is whether or not they had any reasonable basis to make the decision that they did, that it wasn't illegal, that it wasn't capricious, and then it wasn't arbitrary.

So you don't have to agree with it.

Um you just have to determine that a reasonable person could have come to the same decision that they came to.

So I just think that's extremely important for the board to understand as they weigh these different arguments.

Going back, I'll probably just have the plat up.

As you can see, this is not a large subdivision.

This is not very dense condos or town homes.

So you know, I'm but you're glad that you're not having to deal with that tonight.

This is one additional single family home.

This is the reorientation of a single property line to affect the most effective use of this property.

And Ivory Development has done its best to comply with every single standard that the city has presented to it.

Just to go over a few of the points that we've talked about today.

The shared drive, I think the best way to explain this, and well, maybe I'll step back.

I think the most important fact before the board today is that this shared drive approach is 100% on property owned by Ivory Development.

It doesn't touch the prop the neighboring property.

It is accurate that there is a shared easement across both the old lot two and the new lot one.

That is accurate.

That isn't before this board today.

Certainly, if the lessees have concerns, we are so happy to meet with you guys and work out a solution where everyone feels like they can be good neighbors.

But for this board's purposes, the proposed shared drive does not include their property and it does not take into account their use of their driveway.

So this truly is just a driveway for these two new lots.

And it is a driveway.

I know that it's been referred to as a street, it's been referred to as a lane, but it is simply a driveway for two homes.

And the way it's depicted here, as the city noted on this preliminary plat, is not the location it will end up being.

You can imagine once two homes are built here, that driveway configuration will be shortened and it will be changed.

And certainly at the final plat stage, if there's an exception needed, I don't anticipate that there would be, but the city code does also in section 21-2111 E5 allow for the planning commission to make an exception if by chance it would be longer than 150 feet.

But as you see here, it's not likely to do so given that the only shared portion is on that first lot.

And once a home is there, obviously the driveway will not be so long.

The other more procedural point I wanted to make is that this board really is limited to the evidence that was presented below, the record as we call it.

And here there's been a lot of statements made, some allegations made that were not discussed in between uh before the planning commission.

So this body isn't allowed to take into consideration those arguments and those statements that were not before the planning commission because again, your job is to put yourself in their shoes and decide if a reasonable person could have made the decision that they did with the evidence before them.

One example of that was that a comment was made that the remnant parcel that's now being bisected was non-buildable.

There's no evidence in the record that it was ever determined to be non-buildable by the original developer of that subdivision, and certainly there has been no finding by the city that it's non-buildable, it's simply just being reconfigured to make a more effective use of that land.

There was also a statement made that ivory development was denied access to Wastach Boulevard.

That's also not accurate.

Um, as the city noted, the engineers looked at the two different access points.

What's not immediately apparent on this you know, 2D drawing is that the shaded area next to Washbull Wash Boulevard, that's quite steep.

That's part of the 30% slopes that will not be built on.

So to have a driveway there while possible on the part of the of the lot that is not the 30% slope, it's possible, but it would have there, there were some concerns about erosion.

And so we did we wanted to be flexible, and when those concerns were raised, we voluntarily said, let's have a shared driveway.

We don't want to risk the erosion.

So it wasn't a traffic issue.

We weren't denied access to Watstasch Boulevard.

We're simply responding to the concerns raised by staff and trying to have the least impact on this on Wasach Boulevard and that's those sensitive lands right next to it.

And the city is represented that they their engineers have done a safety analysis and that it was found to be adequate.

The no facts, no evidence was presented in front of the planning commission to rebut that in any way.

So that is what this board has to make its decision on, even if other allegations are made by the affected party here tonight.

Even if other allegations are made by the affected party here tonight, that's the information that's before this board.

And with regard to the final point about the sensitive lands ordinance, I redevelopment is aware of the sensitive lands.

We have every intention of complying with that ordinance.

We've carefully drawn on the plat, those areas that are not buildable.

And at the final plat stage and at the building permit stage, the city will have another chance to look at our plans and ensure that we're in compliance with all those ordinances.

Does the board have any questions for Ivory Development?

Thank you so much for your time tonight.

Thank you.

Appellant, do you want to take some time to rebut or add?

Yes, thank you.

Just a few points to rebut.

One of the arguments that was raised is the the commission didn't have the easements below to review.

That's not the fault of the appellant.

That is the fault of either the applicant or staff.

Staff referred to the fact that a DRIG shared access easement existed.

So it's not that it was unknown.

That is in the report.

The fact that nobody bothered to go and look at it, that's a deficiency of the process, which is another error that we allege.

So as I mentioned at the very start, is the record complete?

Well, you have the record that they had, but that doesn't mean that the record was sufficient to make the decision that they did.

The fact that nobody did bother to go and look at the Drigs easement and see what it says and see what that would require of the applicant is a fault of the process, and another reason why the plat as proposed should not be approved.

We talk about this concept of it now, it's a now it's apparently a driveway.

A driveway is defined in Sandy City Code Section 2137-20.

Um a driveway is a private roadway providing access for vehicles to a parking space, garage, dwelling, or other structure.

Anything can be a driveway, but what they're proposed is clearly not a driveway.

This is a hundred and seventy-foot road.

It's not a driveway, it's not a driveway that goes to a house.

What exists right now is a driveway that goes to the Lisi's house.

But that's not 160 foot, 170 foot, 180-foot road, whatever it ends up being.

Also, the point of measurement for a private lane and a private street is not from where we've been showing you.

We've been showing you on the map, just take that hash mark that that bisects my client's property.

Yeah, thank you.

My client's property and the uh yeah.

Just just measure from where the the new property line is.

Well, that's not actually where you measure from.

You're supposed to measure from uh back of curb of the intersecting road.

So you're supposed to be measuring from Wasatch Boulevard.

So you've actually got to take your measurement all the way down to Wasatch Boulevard and start from there.

So wherever they end up putting the house, they have to measure from Wasatch Boulevard, not from the intersecting line of where my client's lot meets their client's lot.

There's been discussion about safety, and safety is certainly one issue.

Our clients have been able to use the access that we have safely because it's it's big enough, and they're one house.

Again, this is a new proposed route to get to a new lot up here at lot number two.

My clients don't have to make a tight right turn off of Wasich Boulevard, they go straight into their property.

That's the way that this was designed when my clients lot and old lot three.

It was just a shared uh access right there to split right into their houses.

Nobody was having to go up a hundred and whatever feet to get to another house.

So while it has been safe for us to use, that's not the same reason why it will or won't be safe for a different use.

This is a totally different use.

You're making a tight turn, a tight right off of Wasitz Boulevard.

Uh, it's a much it's a much different scenario that a driver's going to encounter.

The argument about this is only a preliminary plat, and so the road's not going to actually be what it's going to be.

Well, then why on earth are we platting this road?

At least they could have at the at the planning commission level said, well, here's a requirement of approval.

If it becomes greater than 150 feet, you must meet the requirements of a private street.

Well, they didn't do that, so that's an error.

So based on that, if if the road's going to be different than what they show, then have a note that says that's fine, but we're not going to give you final plat if this becomes longer than 150 feet unless you comply with the private road requirements or the private street requirements.

But they didn't do that.

So that's an error.

That's a reversible error.

And just quickly, I'm gonna confer.

I'd like to say if you're done, I'd like that.

Okay.

And then with that, uh, Mr.

Leasey would like a minute.

Thank you, Jimmy.

Thanks.

Again, thank you, gentlemen.

Um I have a couple things to add uh as a rebuttal to what Ms.

Wilson provided for you.

Um she said several things I took notes during uh what she presented.

Uh three three things I had issue with.

Um she said that the shared driveway is not on our property.

That's wrong.

Um our property line goes down the middle of that shared driveway currently, and according to our easement, 10 10 feet of it of the access is on our property, and 20 feet is on Ivory's.

Um but as Jim presented, any cars going in and out are to be crossing that property line all the time.

And when they cross onto our property line and they're accessing that further lot, there is no easement to the other lot, that's gonna be trespassing every time.

And we do not give permission for use for the other lot.

So it's inevitable trespassing that's being set up because that it's a shared driveway, and part of it is on our lot, and that side of the line is going over all the time.

The second thing Miss Wilson said is that uh, as you see in this map, that this driveway, this roadway that Ivory's presented on the plat could be shortened, right?

Well, it can't be shortened beyond the property line they have there.

And if you look at this map, you can see that the line going in along our boundary line.

That's about 37 feet on on that.

The problem is the numbers are so small you can't freaking see them.

All right, so I'll bet the pri the planning commission were looking at this too, and the numbers were so small they didn't see them.

Okay, so I think this is just they didn't add up the numbers to see the length of this roadway.

If they had, if they had you know done this right, they would have seen that you go in there 37 feet, and then that line of going across to the property line is 114 feet.

That so that already puts you at 151 feet.

All right.

So just to get to the property line from Los Angeles Boulevard is over 150 feet.

Now, to the definition of a driveway is from the entrance to the structure.

A structure in R110 zone land, which this is, has to be eight feet at minimum from the property line.

So the closest they could put a garage would be eight feet from that side property line.

And so they have to go a minimum of 158 feet from Washington Boulevard to get to the closest place they could possibly put a structure.

So she said that Ivory might shorten that driveway to get to make it under 150 feet.

It is impossible.

You can see that with numbers that are too small for you to read.

The third thing that Ms.

Wilson said that is incorrect, is that the engineer you know you know approved this.

They they never had a problem, the engineer never had a problem with Ivory's proposal.

The first thing Ivory did when they got this land is cut their own driveway so they wouldn't have to be forced to share share mine.

That's the first thing they did.

They destroyed the retaining wall.

They made a cut in it, you can see it on the satellite map.

You you can probably bring it up on the map and see the cut.

If you if you can show the satellite view that was presented.

Alright.

Right there, you can see the cut.

The first thing they did is bring in a huge excavator, move 10 ton boulders with that excavator to make their own driveway, so they wouldn't have to share mine.

The engine they took that to the engineer, the engineer said this driveway is a 40 degree grade.

You're not gonna be able to get access with that driveway, it's also not far enough from our driveway to get onto Wasatch.

The engineer said no.

That's when Ivory Great Timothy came to me, knocked on my door, and said, Hey, can we just share this driveway for any subvision?

And I said, that's gonna be way more traffic.

Uh I don't want to prove that.

My wife is pregnant.

We're expecting our first baby in June.

Our baby's nursery is gonna be sitting right along this private street.

And that's what it is, it's a private street.

Okay, you look at the city code, City Code says if a roadway is shared by three or more lots, and it's over 150 feet long, it's a private street.

That's the definition.

That's what it is.

The planning commission didn't see it, these numbers were too small, that was their mistake.

They didn't add up the numbers.

The length of this driveway, if you add up all those tiny little numbers, you have 190 feet.

You can do it yourself, you don't have to believe either side.

Just add up the numbers for yourself.

You see how long this driveway is.

It's about 190 feet.

And it serves three or more.

That's the issue.

That's a mistake the planning commission made.

And thank you very much for your time.

Any doubt.

You know why I care so much.

Thank you.

Mr.

Lisi.

I have a couple of questions, probably for you, Mr.

Anderson.

And I'll just I'll just rattle them off and you can hit them.

First, the easement.

I mean, to me, I don't, I'm having a hard time finding a remedy that us or the planning commission can give on an easement between two private parties.

I mean, that seems like a contractual thing that I'm struggling to find a remedy here that we or the planning commission could implement.

That's number one.

Number two, could you talk about the standard a little bit?

Um Ms.

Wilson hit that.

Uh I came into this hearing recognizing that that you know this seems like a pretty high standard, arbitrary, capricious, illegal.

Um and tell me why any of these factors that that you and your client have enumerated, you know, hit that standard.

And then finally, uh Ms.

Wilton also uh mentioned a code section that allowed the commission to make an exception to uh a street standard or some sort of exception authority.

Uh hit that too if if you know what she's talking about.

Sure, happy to.

Uh as to the as to the easement and whether the city has the burden of fashioning a remedy.

You don't.

You don't have to, you don't have to figure out how a lot can be developed.

That is the applicant's problem.

It is not the city's problem or the city's job to figure out how can I make sure that this applicant can develop what they want to do.

If the applicant can't develop what they want to do within the city code, then they can't do it.

You don't have to figure out a reason to help them to figure out how to do it.

It is the applicant's job to get with Mr.

Lisi and say, how can we make this work?

If they can't do that, then they can't build what they want to build.

Because they can't just run roughshod over my client's rights.

We have property rights for a reason.

They are to be respected, they're constitutional, and we don't just get to override them when an applicant thinks, I'd sure really like to build here though.

So your question is to what can you do to fashion a remedy?

Nothing.

Don't fashion a remedy.

You're not supposed to.

It's Ivory's burden to figure that out.

And they haven't done it.

So based on that alone, you can send it back and say, nope, sorry, try again.

Um, with respect to, and I apologize if I go in in wrong order, I want to talk about the standard.

Any or you can do that?

Yeah.

So talk about the standard.

Um, uh, I I believe Ivory gave you the wrong standard as far as what you're supposed to review.

And we put that standard, um, we look at Sandy City Code for the record, it's 21-35-1H2, and that gives the Planning Commission discretion to make decisions, and that the commission should be granted significant deference.

However, there is a second standard that does not allow deference.

That's 21-35-1H 1.

When we are talking about legal issues, not factual issues, but legal issues, the planning commission is not afforded deference.

From the from the code specifically, it says, because no specialized knowledge is necessary to make such a determination, no deference is given to the land use authority or administrative official.

Provided, however, that the appeal authority, you shall not overrule that decision as a matter of law without the advice of your counsel.

So you don't have to look at what the planning commission did and give it deference on legal issues.

Did they interpret the code correctly?

That's a legal issue.

We say they did not.

You can make your own independent judgment of that.

You do not have to give them any deference whatsoever.

Okay.

I think your other question was as to the arbitrary, capricious, and illegal standard.

Yes.

Yeah.

Um the height of that bar depends on what you're looking at.

If something is illegal, that is all we have to satisfy.

We don't have to satisfy arbitrary, capricious, and illegal.

We only have to satisfy one of those.

And that's what we've done with the private lane, private street issue.

They failed to follow the law.

Therefore, it is an illegal decision, and as an illegal decision, it is to be reversed.

If we didn't have an illegality argument, then we would have to satisfy the arbitrary and capricious standard.

So then we'd be talking to you about issues like is there enough evidence in the record where a reasonable person can differ on what was decided?

Well, yeah, there is.

No, there's not evidence in the record to support that this is a private lane.

All the evidence was before the commission.

Whether or not they looked at it, whether or not staff brought it to their attention, whether or not the applicant brought it to their attention, that's a failure of the system.

But the evidence is sitting right there.

So we believe that a reasonable person can definitely look at this and say, absolutely not.

There is not evidence in the record to support what you did.

So rather than arguing a higher standard of boy, there's just enough, there's enough evidence here, so we're just going to let it stand.

We're actually taking the argument of there's not evidence here to let it stand.

If you do the math, you show that it is clearly not a private lane.

I guess with the issue of whether or not it's a driveway, that would be an interpretation of the driveway definition of the of Sandy City, and that again is a illegal conclusion.

You don't have to give them deference to that.

You can conclude that it's clearly not a driveway.

And I don't think staff was even arguing that it's a driveway.

Staff was saying it's a private lane and you have to comply with it.

And we're saying it's actually a private street.

You have to apply with that.

Did I hit all of your questions?

Yes.

Okay.

Thank you very much.

Mr.

Chairman.

Or sorry.

Yes.

You did ask one other question about exceptions on street on length of driveways.

I don't know if you want to pursue that.

I think I think he addressed uh the commission's deference, but yes, the exception on deeming a street a driveway.

Deeming a street driveway.

Okay, as I looked at that code, I think that is in the staff report.

And I looked at that code and I want to find it.

So I might want to just come back up to you after I find it.

But what I remember it's saying is that special exceptions can be made.

It could be 21-24-16.

But in any event, and I apologize that I don't have that readily available.

And perhaps if the applicant wants to cite us the citation, we'll look at it quickly here and get you an answer.

But nevertheless.

I'm happy to.

Oh, yeah.

Yeah, I think Ms.

Wilson quoted it in her presentation.

It's 21-21-11 subsection E5.

Okay.

Thank you.

Okay, we're going to find that real quick and we're going to look at it.

And then I'll step back up.

Or do you want me to just stay here while we approve it?

Hang tight.

Yeah, hang tight.

Okay.

You're you're the end of the line.

After you're done, I'm closing the closing the hearing.

Okay, fair enough.

The section that was quoted was 21-21-11 E5, which is regarding the private lane standard.

There's another standard that I think would be applicable here, which is in relation to driveways, which is in the sensitive area overlay zone, which is in 21 15.

So the other standard that applies to this particular case, because these lots are in the sensitive area overlay, is twenty-one dash fifteen dash four subsection.

B is in boy.

B is in boy.

And I can pull those sections up and show them on the screen if that's helpful.

Yeah, please do.

Is this the 21-15?

Correct.

Okay.

And I think it's important to note that with residential development, we don't know where on single family residential development, we don't know where the homes are going to be placed.

All we're looking at at the subdivision level is how the lots are going to be created.

Where the house is sited, and the length of driveway accessing that garage and home is subject to the building permit review, not the subdivision review.

There is a shared driveway element that is part of our uh subdivision review requirement, which is the area that's crossing in front of the proposed new lot one from uh lot two's lot.

Because they, in order to get out to the street, they're crossing lot one's frontage.

So there is a requirement for us to review that, and that length is less than 150 feet, therefore there was no requirement to apply any standard beyond 150 feet because we don't know yet where those homes will be sited and located on those lots.

But it would be reviewed at building permit, and if they need to go back and get uh extra permission or standard, this would be the standard that we would apply at that point.

And it gets deemed as a fire department access road potentially and has to meet the design requirements of a private lane.

But as we reviewed it as staff, it was as a uh a driveway, not a private lane or private street standard.

Okay, so with respect to the question on 21-21-11, does the planning commission have the ability to grant a special exception in section five, so E5?

It does.

And so it has to do it under certain standards.

Has to be a recommendation from the director and city engineer.

They have to consider various conditions when making a recommendation for approval of the private lane, of a longer private lane, longer than 150 feet, proximity of buildable space, appropriately designed turnaround, slopes, fire hydrants, and service delivery.

So great.

Yeah, the planning commission has authority to do it.

Great, go back and require them to do it.

Because that will flesh out these issues that we're raising.

There's safety concerns, there are legal concerns, there's access concerns.

That would be a great thing for the uh applicant to be required to go through to go through this process of determining can this actually be done safely.

And then we would have a record of what the director and city engineer uh determined and how they determined it.

But we don't have any record of them doing that.

So can it be done?

Sure.

Make them do it.

That would be our response to that.

Uh, with respect to this uh new issue being brought up about 2115-4.

I don't know if that's in the record or not, or if that's new issues being brought up tonight.

Um, but can you go back to it?

I was just clarifying that we didn't review the direct locations of this of the homes because that's not part of the record.

The actual sighting of where the homes are and the length of the driveway would be determined at building permit, not a planning commission subdivision review.

Okay, well, that just goes back to my original point.

If there should be a note on there, if your road is going to be too big, then you have to comply with private uh street requirements.

So there ought to there ought to be a note on there.

The fact that they didn't consider it under what it is under the code, that's that's not an issue for us.

All these driveway questions, these come up with building permit, not when you're going in for a preliminary plan.

If it's a driveway, uh you have to make that determination.

The shared driveway is only shared, the width of the proposed lot one, which is less than 150 feet, which means all of this doesn't matter to me.

No, why do you think it's less than 150 feet?

Because the width of lot one from the front from the left side to the right side, it's less than 150 feet.

It is only shared where both where it's driving over lot one.

As soon as it passes into lot two, it's no longer shared.

I'm not measuring that anymore.

But you're supposed to measure from back of curve of Washatch Boulevard.

Doesn't matter.

No, it does matter because you have to get that scoop.

It's still under 150 feet.

No, I can't.

It's not possible than 150 feet to the property boundary between one and two.

Well, to me, I'm done.

I'm ready to make the decision.

Have you have you finished answering questions and I think I've finished answering your question?

Yeah.

Yep.

Any other questions from the board?

Great.

Thank you, Mr.

Hanson.

Thanks.

Okay.

Uh we'll close the the argument hearing portion of the meeting and open it for board discussion.

I think we know where you sit for the stand right away.

That's the width of the front of the left lot.

Mr.

Chairman, sorry.

Yes.

Yes.

Um, there wasn't much a lot of discussion about it tonight, but could you speak to the standing issue first and then deal with that and then assuming you find there's standing, then move on from there.

But I think since that was briefed, I think we ought to address the standing issue first.

Okay.

Any discussion on standing?

Anybody's thoughts?

I have a few.

I think they have standing.

I do too.

I th I think they satisfy the code.

I think it's pretty broad.

I I think most people would have standing here.

Do we need a motion for that?

No, I think you just want to make that part of your ruling.

Okay, so assuming they do have standing, then you there's uh then you need to address the other issues.

Okay.

And Burke, I would say on on this point of the driveway that the commission factually found it's less than 150 feet, and we give them deference, and so uh I'm there we go.

Any comment down there, ma'am?

Yeah, I would like to know where do we define what a shared driveway is in the city code?

Because it seems to be a dispute between whether it's just the portion on front edge of lot one or if it's the entire amount that continues on to two.

That's what I'd like to see.

What is the what's the definition of a shared driveway?

So we don't have a direct definition of a shared driveway.

We have a definition of a driveway.

We have a definition of a private lane and a private street.

And the key issue that we use in determining that is a private street or a private lane is required when they don't have frontage.

These lots have frontage.

So they have frontage, so you're saying they don't need a private street or a private lane.

Correct.

So this is all so your your argument is it's just a driveway.

That is correct.

But we don't have a definition of what or do we we do have a definition of a driveway?

Yes, we do.

Okay, and can we see that?

Yeah, it was cited earlier, but we can bring that back up.

So it says um in 21-37-5.

28 driveway means a private roadway providing access for vehicles to parking space, garage, dwelling, or other structure.

Pretty basic.

Yes.

Okay, uh, is anybody on the board ready to make a motion?

Do you have anything, Bruce?

No, I I'm thinking that I I'm looking for something that's egregious or that was done intentionally by the planning commission, and I don't see it.

You know, I've I reviewed the record in detail.

I appreciate the commentary, especially appreciate the homeowners you know concerns, but nevertheless, I'm looking for that.

I don't feel it, or I don't see it in the record that there was something that was done, especially on the manner of arbitrary or capricious.

I don't see that.

A reasonable person based on the record of what the planning commission reviewed, studied, and was presented to them in written material.

Any reasonable person would have followed that, I believe.

And I noticed the vote also for the planning commission was all of them voted for.

There was no one saying no.

It seems reasonable.

Of course, you could make it the other side of the argument.

That could always be the case.

That's why we have attorneys.

Sorry.

And then just so you address the issues that have been raised.

Okay, I would like to make a motion that the planning commission did not err in making their decision to determine the preliminary subdivision review was review was sent substantially complete for the Falls Creek state subdivision with the following findings.

That the record is complete that findings that the both proposed lots have access to Wasatch Boulevard, and a hundred and fifty-foot private drive is not applicable.

The appellants have not shown that there were no reasonable basis to justify the action taken and the determinations were made.

And the determinations made were so unreasonable to be arbitrary and capricious.

And based on the findings cited in their motion and evidence cited in the record, the planning commission determination was processed as required by the Sandy Legal Land Development Code and Utah Code.

Therefore, the planning commission's decision is correct in its decision in application of the land development code.

I can just ask you to clarify.

Do you or do you not find any legal error in the planning commission's decision?

No.

I would second the motion.

Sorry.

Sorry, Matt.

Okay.

Burke Saker?

Yes.

Bruce Briner?

Yes.

Brian Jones?

Yes.

Matt Hill.

No.

Thank you.

Thank you, everyone.

Thank you for your participation.

And for your uh good decorum and uh what good manners tonight.

Um so that that'll close the meeting.

Do we have any other uh business?

Mike before I ask for a motion to adjourn.

Let's see, we approved the minutes from last meeting, right?

Yeah, wait, that's not part of our meeting tonight.

Sorry.

Okay, no, we have no other administrative business to discuss with the board.

Great.

Can I get a motion to adjourn?

So move.

Motion.

I second.

All in favor?

Aye.

Sorry, General.

Meeting unanimous.

Thank you.

Thank you.

I don't know.

So much for the optimization.

I mean, I think people's agreements.

Okay, we do wrong.