Agenda - Planning Commission - 03/05/2009

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Zoning Bulletin January 25, 20091 Volume 31 No.2 reviewed Legacy's building plans. On January 19, 2006, the Foxes sub- mitted a notice of appeal to the city's Planning Commission (the "Com- mission"). In the notice of appeal, the Foxes alleged that Legacy's three buildings: (1) exceeded the maximum allowed height up.der" the city's Land Management Code (the "Code"); and (2) interfered with the view from their property. After a hearing on the Foxes' appeal, the Commission determined that the Department's issuance of the building permit to Legacy was a final action. Under the Code, a final action had to be appealed within ten days. Because the Foxes had not appealed the issuance of the building permit within ten days of issuap.ce of the building permit, the Commis- sion held that: (1) their appeal was untimely; and (2) therefore the Com- mission lacked jurisdiction to hear the merits of their appeaL The Com- mission dismissed the Foxes' appeal. The Foxes appealed the Commission's ruling to the city's Board of Ad- justment (the "Board"). The BOilrd upheld the Commission's ruling. The Foxes then filed a petiti~n for review in district court. The Foxes asked the court to: (1) declare that Legacy had violated the Code's height restrictions; and (2) require Legacy to bring the three buildings into com- pliance with the Code's height requirements. The district court upheld the" Commission's ruling. The Foxes appealed the district court's decision. DECISION: Affirmed (on different grounds). The Supreme Court of Utah held: (1) a state statutory time period for appeal applied; and under that statute (2) the Foxes had ten 'days to ap- peal the issuance of the building permit; and (3) that appeal period com- menced when the Foxes had actual or constructive notice of the issuance of the building permit; which was (4) when construction began on the "Property in the fall of 2005. Because the Foxes did not appeal within that ten-day period, the court concluded that the Foxes' appeal was untimely. In reaching its conclusion, the court first found that the Code's ten~ day appeal period did not apply to appeals from the issuance of a build- ing permit. It applied only to "final actions," and the issuance of the building permit to Legacy was, as defined in the Code, a "decision" and not a "final action." Absent a city ordinance providing for an appeal pe- riod from the issuance of a building permit, Utah Code ~ 10-9a-704 ap- plied. Under that statute, the Foxes had ten days to appeal the issuance of the building permit. Since the statute did not define when the appeal period began, the court found it was left to make that determination. It concluded that the interests of Legacy and the Foxes were "best bal- anced by the rule that the appeal period begins when the aggrieved party has actual or constructive knowledge of the issuance of the permit." The court said that to rule that the appeal period should begin-as the Foxes had contended-when an affected party receives actual notice of an al- @ 2009 Thomson Reuters 11 89