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CITY OF OREM

BOARD OF ADJUSTMENTS MINUTES

APRIL 23, 2008

STUDY SESSION

PLACE - Development Services Conference Room

At 5:30 p.m. David Shorten called the Study Session to order.

Those present: Robert Clark, Gerald Nielsen, Richard Rawson, and David Shorten, Board of Adjustment

members; David R. Stroud, Planner; Loriann Merritt, Minutes Secretary; Steve Earl, Legal

Counsel; and public in attendance, Bill Fairbanks, Paul Washburn, Daryl Berlin, Dennis

Carter, Julie Smith, Craig Smith, and John S. Robertson

Those excused: Garr Judd, Board of Adjustment member

The Board members and staff reviewed the agenda items and adjourned at 5:55 p.m. to the City Council Chambers

for the regular meeting.

REGULAR MEETING

PLACE - City Council Chambers

At 6:00 p.m. David Shorten called the meeting to order and asked Richard Rawson to give the invocation.

Those present: Robert Clark, Gerald Nielsen, Richard Rawson, and David Shorten, Board of Adjustment

members; David R. Stroud, Planner; Loriann Merritt, Minutes Secretary; Steve Earl, Legal

Counsel

Those excused: Garr Judd, Board of Adjustment member

David Shorten asked David Stroud to introduce AGENDA ITEM 3.1.

Mr. Stroud introduced AGENDA ITEM 3.1 as follows:

AGENDA ITEM 3.1 is a request by Lee Francis for a Special Exception for a Multi-family Dwelling at 482 East 1600

South in the R6.5 zone.

Staff Presentation: David Stroud said that Section 22-21 of the Orem City Code outlines the requirements a parcel

must be to qualify for construction of a multi-family dwelling. One (1) of three

(3) options (A, B, C) may be used.

The Board of Adjustment may grant a special exception for a multi-family

dwelling for a parcel in the R6, R6.5, or R7.5 zones only, under the following

circumstances:

A. The lot meets all of the following criteria:

1. At least fifty percent (50%) of the front and side property lines of the lot

are located directly across the street from or adjacent to a multifamily

dwelling, a PRD in single ownership, or a commercial development;

2. The front of the lot is oriented in the same direction as at least one

adjacent lot containing an existing multifamily dwelling or PRD in single

ownership;

3. The lot is at least eight thousand (8,000) square feet and not more than twenty thousand (20,000) square feet; 4. The lot width is equal to or greater than the minimum lot width required for the zone in which the lot is

located;

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5. The lot has not been previously developed;

6. The lot is a legal lot of record, does not contain any structures, and is not within a recorded subdivision plat;

and

7. The lot was in existence on November 1, 1999, and has not been subdivided subsequent to that date; or

B. The lot is surrounded on all property lines (including across the street) by multifamily dwellings, a developed

nonresidential use (this does not include any agricultural use), or a commercial development and complies with Section 22-21-2(A)(3) and (7). or;

C. The lot is located on a city block where all other lots are occupied by multifamily dwellings and complies with

Section 22-21-2(A)(3) and (7). For purposes of this section, a city block is defined as an area that is completely

surrounded by public streets.

The applicant is requesting approval based on option ―B‖ as listed above. The property in this request is surrounded

by existing multi-family development or commercial development. By using option ―B‖, the property must still

comply with A(3) and A(7). The subject parcel is 14,374 square feet and was in existence on November 1, 1999.

Development Requirements Density

Four units are permitted on lots between 12,000 square feet and 20,000 square feet.

Height

The maximum height of the structure is 35 feet with a roof pitch of at least 5/12. The applicant‘s proposed

structure is approximately 22 feet high with the steepest roof pitch at 10/12.

Setbacks

The setbacks comply with the zone as shown on the site plan.

Parking

A minimum of 2.5 stalls is required for each unit or ten (10) stalls. A two-car garage is included for each unit (eight

stalls) with each driveway counting as one additional stall for a total of twelve (12) stalls.

Exterior Finishing Materials

The front elevation must be at least 60% brick, stone, stucco, or a combination. The side and rear elevations must be

at least 40%. The structure elevations will be brick and stucco.

Facades and Entrances

Facades must be offset by at least two (2) feet and entrances must be on the same level. Units must also be side by

side. The proposed structure meets these criteria.

Landscaping At least 30% of the lot must be landscaped. Two deciduous, two evergreen, and 16 shrubs are required as part of the

landscaping. The landscaping plan has been drawn to reflect these requirements.

Mr. Shorten asked if the Board had any questions for Mr. Stroud.

Mr. Shorten invited the applicant to come forward. No one came forward.

Mr. Shorten invited those from the audience who had come to speak to this item to come forward to a microphone

on either side of the room.

Mr. Shorten asked if the Board had any more questions for the applicant or staff. When no one did, he called for a

motion

Board of Adjustment Action: Mr. Rawson proposed the applicant complies with Section 22-21 of the Orem City

Code. He then moved to recommend the Board of Adjustment grant a special exception for a multi-family dwelling

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at 482 East 1600 South in the R6.5 zone. Mr. Clark seconded the motion. Those voting aye: Robert Clark, Gerald

Nielsen, Richard Rawson, and David Shorten. The motion passed unanimously.

David Shorten asked David Stroud to introduce AGENDA ITEM 3.2.

Mr. Stroud introduced AGENDA ITEM 3.2 as follows:

AGENDA ITEM 3.2 is a request by Paul Washburn for an Appeal on Staff‘s interpretation of the code, as it relates to

the location of a car dealership in the location the applicant desires – NORTHGATE VILLAGE at 800 North 1200

West in the PD-22 zone.

Staff Presentation: Mr. Stroud said Section 22-11-35 is the ordinance that applies to the Northgate Village

development at 800 North 1200 West. Standard Land Use (SLU) 5511, Motor Vehicles, is a permitted use ―…only

along and facing 1200 West.‖ The applicant has courted Murdock Hyundai to relocate the current 1.5 acre operation

from South State street to a new 5 acre site within the Northgate Village development.

As a permitted use in the zone, this is acceptable. However, the language of ―…only along and facing 1200 West‖ is

the basis for this appeal. Staff has interpreted this as (1) the business must have its primary frontage and access on

1200 West, (2) all dealership buildings must face (main entry) 1200 West, (3) all vehicle displays must face 1200

West, and (4) the dealership may have frontage on 800 North and may display vehicles adjacent to 800 North but the

depth of the dealership west to east shall not exceed the length of frontage along 1200 West. This frontage

measurement is approximately 250 feet, which then gives them 250 feet along 800 North. The maximum size of the

car lot would then be close to 1.5 acres – far below the five acres wanted.

The applicant feels that the dealership should be able to extend the entire length of 800 North (550+ feet) so long as

the entry for the business is only along 1200 West. The applicant feels the interpretation of the Code by staff is in

error and requests an appeal and interpretation by the Board of Adjustment.

Mr. Earl said the question initially came up in the context that the Northgate developer wants to put a car dealership

on a property of five acres. Staff indicated that could not work because it did not comply with the Code and

suggested to the developers they could come in and amend the ordinance to allow them to unambiguously make that

a permitted use in the zone. An application was filed with the City Council to make the entire five acres a permitted

use of the zone. The City Council struggled with what that meant. In the pre-meeting when this item was going to

be considered, they read that language and were not sure what it meant. They wondered if the intention was to

restrict that use to a certain corridor along 1200 West or they could be anywhere in the zone as long as they had

some frontage along 1200 West. Paul Johnson, City Attorney, gave his opinion, which was stated earlier in the

presentation. Mr. Earl pointed out #4 regarding the depth. The thinking was that because 800 North is a much

busier street than 1200 West and because car dealerships naturally want as much exposure to traffic as possible, the

concern is that if frontage is allowed along 800 North to exceed that which they had on 1200 West over time the

primary orientation would go toward 800 North. The idea is to not allow the frontage on 800 North to exceed the

frontage on 1200 West. Even within the Attorney‘s office there is some disagreement on this particular provision. He personally thought the language could be construed to mean that there would be no frontage along 800 North. It

could be interpreted many different ways. The language is ambiguous and creates a problem. Given the ambiguity

of the phrase, Mr. Johnson analyzed and looked at the intent of that limitation. They looked at the history of the

zone. Initially, auto dealerships were not allowed in the zone. Northgate subsequently applied to make it a

permitted use and included the limiting language of ―only along and facing 1200 West.‖ The Planning Commission

minutes show several indications that the intent was to limit it to a fairly narrow corridor along 1200 West and to not

allow it to expand elsewhere throughout the zone.

Mr. Earl also stated that you could even interpret the ordinance language to mean that a dealership could have no

frontage at all on 800 North. The language ―only along 1200 West‖ could be interpreted to mean that the only

frontage a dealership could have would be on the street of 1200 West and you could not have any frontage on any

other street. Mr. Earl acknowledged that the ordinance could also be interpreted a number of different ways and that

that is the problem-- the language is ambiguous in that it is subject to more than one possible interpretation. Given

this ambiguity, the City Attorney Paul Johnson analyzed what the intent was behind the limitation in the ordinance

to begin with and what the goal was that it was intended to accomplish. The City attorneys looked at the history

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when the limiting language first went to the Planning Commission back in 2005. Mr. Earl noted that an auto

dealership was not originally a permitted use in the zone. Northgate subsequently applied to make it a permitted use

but included this limiting language ―only along and facing 1200 West.‖ In the Planning Commission minutes, there

are several indications that the intent was to limit it to a fairly narrow corridor along 1200 West and not to allow it to

expand elsewhere throughout the zone. Mr. Earl referred the Board to the concept plan which is an exhibit to the

PD-22 zone, which is an appendix to and a part of the ordinance. Mr. Earl pointed out that the areas ―A‖ ―B‖ and

―C‖ are designated in the appendix. Mr. Earl indicated that in the Planning Commission minutes there were some statements made by Northgate representatives that an auto dealership was intended to remain along 1200 West in

such an area that it would be compatible with uses like the Heringer Marine. The thinking was that an auto

dealership would be consistent with that kind of use in that area. There was also a statement that auto dealerships

would not go along 800 North. This supports the argument that you could interpret the ordinance to mean no

frontage on 800 North at all. There was also a statement made that the auto dealership would not go in the mixed use

area which is the area shown in area ―B‖ on the concept plan. If you keep an auto dealership out of the mixed use

area that leaves a corridor of about 365 feet at that point (near Heringer Marine) narrowing to about 210 feet. That is

pretty consistent with the interpretation that Paul Johnson gave that if you had 250 feet of frontage on 1200 West

that you could then go back about 250 feet. The argument could be made that that interpretation is even more liberal

than what the original intent of the ordinance was, which could be interpreted not to allow dealerships on 800 North

at all.

Mr. Earl noted that there is a letter from Northgate‘s attorney and their argument is that the plain language of the

ordinance would allow them to go into the area that they have requested. Mr. Earl referred to a map showing the

area where Northgate desired to put an auto dealership and noted that it would encroach into the mixed use area that

is designated in the appendix to the ordinance. The way the courts say that an ordinance should be interpreted is that

if an ordinance is unambiguous or subject to only one reasonable interpretation, then it is interpreted just by the plain language of the ordinance and you don‘t have to look at the intent, the history or anything else. However, if

the language of the ordinance is ambiguous or in other words, if it is subject to more than one reasonable

interpretation, which this ordinance is—it is subject to Northgate‘s interpretation, it is subject to the City‘s

interpretation, and it is probably subject to a couple other interpretations. The City‘s argument is that the ordinance

is ambiguous and the courts have said if an ordinance is ambiguous, then it is appropriate and even necessary to look

at the intent. The courts say that the primary purpose, if it is ambiguous, is to give effect to the intent of the

ordinance and give it the meaning that will accomplish the goal and objective it was designed to meet.

Mr. Earl noted that there is another point that the counsel for Northgate will probably raise, which is that zoning

ordinances are considered to be in derogation of private property rights and should be construed in favor of property

owners. That is a correct principle. What you have are somewhat competing interests—you have the statement that

you are supposed to construe an ordinance according to its intended meaning and you are supposed to construe it in

favor of property owner‘s interests. The courts have noted that there are these two competing interests but they say

that the primary goal is to give meaning to the intent. The primary goal is not to construe it in favor of the property

owner, but it is to construe it in favor of the original intent of the ordinance. That is why we go back to the Planning

Commission and look at the history and we say that is what this whole thing was about. If you do not look at the

history and allow it to be interpreted in the way the applicant is suggesting, you would say as long as I have frontage here (on 1200 West), I can put a dealership basically anywhere in the zone. That does great injustice to the intent

and purpose of the ordinance and essentially makes it meaningless because the intent was to keep it down along

1200 West where you have other consistent uses like the Heringer Marine.

Mr. Shorten asked if the Board had any questions for staff.

Mr. Shorten invited the applicant to come forward. Craig Smith introduced himself.

Craig Smith said he is the attorney with Smith Hartvigsen LLC representing Northgate properties. Mr. Smith said

part of the problem his clients have had with this project is misinformation given to the public from City staff. He

said tonight‘s application is a change to the original site plan and there have been quite a few changes. He said

when the original site plan was proposed an erroneous location was given by the staff to the public and the public

thought there would be a car dealership next to their residences and that is not the case, because there will be

substantial landscaping and buildings in between.

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Mr. Smith said he has appeared before many Boards of Adjustment in his legal career. His firm represents many

municipalities as well as property owners. He discussed the role of Board of Adjustment members in these

meetings. The Board of Adjustment is an appeal authority, which is similar to the courts. The Courts have called

the Board of Adjustment‘s ―quasi-judicial bodies‖. The members sit very much like a judge would sit in a

courtroom and the Board‘s job is to look at things, weigh the evidence and make an independent decision. There are

a couple of things that interfere with that role as a quasi-judicial body. He said that if anyone has talked to the

Board members about this appeal outside of the confines of this hearing that is wrong. If that has happened, it needs to be disclosed and put on the record. Another thing that can hurt the Board‘s ability to be independent in their job

is the idea that they have access to outside legal counsel. In his opinion, on a matter such as this where the City has

a stated position, the City Attorney and staff person are advocating a position and are not independent. He

suggested that if the Board needs legal advice, they should ask staff to provide independent counsel.

David Shorten asked if Mr. Smith wanted a declaration from the members of the Board if they have or had been

contacted outside this hearing. Mr. Smith said that would be appropriate. Mr. Shorten noted that Mr. Smith could

have been more direct in his request. Each Board member then said they had not been contacted by anyone and had

not been exposed to information regarding this matter except for the staff report given the Friday prior to the

meeting. Mr. Shorten added that the letter from the attorney for Northgate was included in the packet.

Mr. Smith said this is an important case and if there is a dispute, the Board will be asking advice from the opposition

attorney and that is not very fair. If there are legal questions, his view is that both parties can weigh in on those, but

both the attorneys in attendance are advocates. It is not proper and fair to use the City attorney as a legal advisor.

Mr. Smith indicated that the applicant applied for a permit and at the request of the City they asked for a zone

change, because the City told them they would not be able to do what they desired. He maintained that the language of the ordinance is very clear in what it says.

Al Spencer called out from the audience that they could not see the drawings. Mr. Shorten pointed out the

presentation was to the Board of Adjustment. He asked the applicants to show the displays to the audience as a

courtesy.

Mr. Smith continued by pointing out there will be no access from 800 North, the only access is off of 1200 West.

This is an amendment to locate an auto dealership, however, there were other ideas the developers were thinking

about back in 2005. Mayor Washburn, who is related to his client, Paul Washburn, contacted the client and visited

with the Murdocks in his office. He said and the City was going to lose their business and hoped that it could fit in

his development. The City likes auto dealerships because of the sales tax revenue and low traffic. If this was a

Costco there would be more traffic in comparison to an auto dealership. Site plans do change and the newest site

plan shows several buildings in between the residents and the car lot.

Mr. Smith then discussed the role of the Board of Adjustment. The Board will determine the correct interpretation

of the Code and should not give any deference to staff. The applicant does not believe the phrase is an ambiguous

phrase. Under the rules of interpretation that the Board is given, the Board is to look at the plain language of the ordinance. He quoted from M&S Cox Investments v. Provo City Corporation:

Interpreting the meaning of an ordinance we begin by looking at the plain language of the ordinance. If the

plain language of the ordinance is ambiguous, we may resort to other modes of construction. If we need to

rely on other modes of construction, (the Board) must keep in mind that when interpreting the ordinance it

is axiomatic that the Boards primary goal is to give effect to the City‘s intent in light of the purpose the

ordinance was meant to achieve.

He suggested they discuss what the ―purpose the ordinance was meant to achieve,‖ means. The Planning

Commission minutes that are in the staff report are like a ―red herring.‖ He reminded the Board that the Planning

Commission minutes are a condensation of many other things that were said. The minutes from June 2005 could be

acted out in 10-15 minutes; however, the meeting was a two hour meeting. There are a couple of witnesses who

were at the meeting that will talk about what was said there. The second thing is that the Planning Commission does

not adopt any ordinances; they make recommendations. The body that adopts ordinances is the City Council. The

minutes from the City Council had no discussion about this idea of having more length, etc. In fact in their research,

they have not been able to find any proof that any of the discussion from the Planning Commission was transmitted

to the City Council so they would have the benefit of it. There was no discussion about new or used auto

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dealerships by the City Council. Mr. Smith presented different terms to the Board to show they are not ambiguous.

For example: ―along‖ means just what it says; ―facing‖ means to have a ―front oriented towards.‖ These are very

plain words and meanings.

Mr. Smith introduced an expert, John S. Robertson, who was asked to analyze the phrase, ―only along and facing

1200 West.‖

Mr. Robertson said he has been practicing linguistics since 1967 and has taught linguistics for 30 years at Brigham

Young University. He recently retired and has a good publication record of 70 publications. He felt he has some

background to be able to look at language and say something about it. He read his prepared remarks:

As a linguist who has been practicing since 1967, I am here to comment on whether the Orem City

Code Section 22-1-35(D) is ambiguous: An auto dealership is permitted use ―only along and facing 1200

West.‖ To determine the meaning of a given ordinance, the first and chief responsibility is to look to the

plain language to determine its meaning. If the meaning is not ambiguous, it would be inappropriate to add

any other qualifying language.

The question here is whether this is ambiguous: Business X can exist ―only along and facing‖

road Y. I submit that there is no ambiguity in the phrasing. It is so concrete and so particular that

reasonably well-informed people would have to qualify it in some way to attribute more than one meaning.

It means simply that there is only one front to the dealership and that front must be ―along and facing 1200

West‖ – certainly not along and facing 800 North, for example. Nothing is ambiguous about the word

front. Can any well-informed person think of any house that is facing him that has more than one front?

Only if there were two entrances that were totally equivalent would there be any question of the meaning of

the word front. Sides can be ambiguous: A square cannot face anything because it has only sides, which

are equal. I have a front and a back, and I have two sides. But no one has problems distinguishing front from back or front from side, for that matter.

There is a house next to mine here in Orem on the corner of 690 East and 1950 North. No one

ever mistakes the front of the house, which is facing 690 East, even though there is a driveway on the side

of 1950 North

The suggested ambiguities are:

Could a dealership have any frontage on 800 North or did the terms ‗only along and

facing 1200 West‘ preclude frontage on any street other than 1200 West?

The language “only along and facing 1200 West” means that there is only one front, and

that front can only face 1200 West. It would be inappropriate for there to be frontage on

800 North.

Did the phrase ―facing 1200 West‖ mean that all buildings had to face 1200 West? Did it

mean that all car displays and signage had to be on 1200 West? Could any car displays

or signage face 800 North or some other street.

So long as they are not equal. Anyone can distinguish the front from the side of a car

dealership, and that singular front must be “only along and facing 1200 West.”

Could a dealership go anywhere in the zone as long as it had some minimal amount of

frontage on 1200 West or did the language ―only along and facing 1200 West‖ prohibit a dealership in certain areas of the zone.‖

The front of the building must be perceived as its legitimate front which must be “along

and facing 1200 West.” It would be contrary to the ordinance for the dealership to go

anywhere in the zone that would make it not facing squarely 1200 West.

I cannot imagine how any reasonable person could read any ambiguity into the phrase ―along and facing

1200 West‖ in the Orem City Code Section 22-11-35(D).

Mr. Smith asked Mr. Robertson to discuss different definitions of the Orem City Code. He started with the word

frontage. In the Code ―frontage‖ is defined as: ―… the width of the lot or parcel of land which faces or has one side

adjacent to a dedicated street.‖ He continued with Lot Line, Front, which is defined as ―… an interior lot shall

mean the public right-of-way line, which forms a boundary of the lot. For a corner lot, the front lot line shall be the

public right-of-way line which forms a boundary of the lot and which is most closely parallel with the front façade

of the primary structure on the lot. See Appendix B, which is incorporated herein by this reference.‖ Mr.

Robertson said both these definitions are not ambiguous.

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Mr. Stroud asked if Mr. Robertson is supporting that the verbage is not ambiguous and has only one interpretation.

Mr. Smith said yes. Mr. Smith pointed out these definitions are in the zoning code of Orem City and there can only

be one front to a building.

Mr. Smith asked Roger Dudley, Orem, to come forward.

Mr. Dudley said he has been a professional civil engineer for 30 years. He produced the schematic concept plan of what a car dealership could do at this locality. Part of the consideration for how the project was developed is the

exposure to I-15 and 1200 West. The building should face 1200 West and is elevated above I-15. The building is

designed to face southwest towards 1200 West. The parking display area should be put west of the building closer

to 1200 West. Mr. Smith asked which part of the building would face 800 North. Mr. Dudley said it would be the

side of the building. The Ford dealership on University Parkway is situated very similar to this development. The

display and showroom for the Ford dealership is on the west side facing away from Sandhill Road. This building

would face to the south and west. Mr. Smith asked the orientation of the majority of the automobiles on display.

Mr. Dudley said the automobiles on display would face to the west. The front of the car would face 1200 West. Mr.

Smith asked if he is aware of the requirement stating, ―Motor vehicles new and used including motorcycles and

ATV‘s only along and facing 1200 West.‖ He asked if he attempted to comply and if it was difficult to understand.

Mr. Dudley said he tried to comply and understood it needed to have frontage on 1200 West and could not access

800 North at all.

Mr. Smith asked if it was uncommon for lots in Orem to have frontage on one street and also have another street

adjoining on one of the sides or the rear. Mr. Dudley said that is a common thing; every corner lot would have that

situation.

Mr. Smith said this dealership will have more depth on the south than on the front. The staff was hung up on having

more depth on the side than the front. He asked if it is common for commercial properties to have more depth than

frontage. Mr. Dudley said most large commercial sites have the required depth and not a large frontage. Residential

lots are usually deeper than wide.

Mr. Shorten said it appears it has taken 45 minutes to get to the crux of the issue, which is not the direction the

building is facing, but the fact the City interprets the side of the lot to be less than desired.

Mr. Smith said the point of contention is the language is clear and non-ambiguous. The City had a chance to make

the ordinance the way they wanted it and should have made it clear in the beginning. The second point is there is

nothing that points to the intention of the discussion.

Mr. Shorten said that if the Board finds the language is unambiguous then there is no reason to look at the intent.

The City through its enabling power has the right to interpret. Mr. Smith said the City cannot interpret by putting

things in that are not in the ordinance already. When the City interprets an ordinance, there are rules that the City,

this body and the courts have to follow; and they are not allowed to add things that are not already in the ordinance.

The third point is that this is a derogation. If there is any question about the construction, it should be liberally construed in the favor of the property owner. The applicant does not think that has been done.

Mr. Shorten asked how many property owners are involved. Mr. Smith said the court was talking about the property

owner that is asking to be able to use their property. Mr. Smith under common law the property owner can use his

property however he wants, that is a property right.

Mr. Shorten asked if the adjacent owners have any rights. Mr. Smith said the property owner has a due process

right. Neighboring property owners have the right to appear at public meetings, but do not have a due process right

because it is not their property at issue. Mr. Nielsen said the minutes in the packet indicate that when the

neighboring property owners purchased the property this was not part of the development. Mr. Smith said it would

depend on which site plan is being referred to.

Mr. Smith asked Paul Washburn, property owner, Orem to come forward.

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Mr. Washburn said the original Northgate project began in 1999 with 30 acres purchased from Utah Department of

Transportation (UDOT) and in 2002 the original PD-22 zone was adopted. The map today is not the same as the

original map. The original zone only contained the UDOT property. In 2005 they entered into a contract with Orem

City to purchase the public works property and expand the project to 65 acres. At the time of expansion they met

with the City and decided it was a good time to add additional uses. Mr. Washburn said there has been some

confusion particularly in the case of the Planning Commission meeting minutes. He said there was not one map in

that meeting, but two maps. At that time the language allowing a car lot was added into the zoning ordinance. It was another 18 months before people were able to purchase and occupy homes. The first occupancies took place

late in 2006 and throughout 2007 and the car lot was already allowed.

Mr. Nielsen then asked if any of the occupants of Northgate Village have any say in what takes place on the

undeveloped land and if they do not have any say, what is the purpose of a public meeting. Mr. Smith said there is a

hierarchy of property rights under the law and the most important is the property owner and the second would be

neighboring property owners and then anyone in the City. Only those who own the property or are close by can take

the property to court. Mr. Smith said the neighbors can make an argument to have the Board interpret the Code a

certain way. Mr. Nielsen asked if some of the neighbors purchased property prior to this issue coming up, and does

the City generally recognize their position. Mr. Earl said the Board can listen to the public; however, the property

owners all bought after the language of the ordinance came in. He said so we come back to the same question:

What does the language mean?

Mr. Shorten noted that the original site plan contained 30 acres with a design that was meant to be similar to the

Riverwoods in Provo. When more property was purchased the site plan was amended and the car lot use was added.

Would the Board still be meeting if the second property had been developed separately? It appears to him that this

is similar to the camel‘s nose in the tent analogy. It seems that the fact that Heringer Marine is next door justified a car lot since it is a heavier commercial use. Mr. Washburn said the purpose of the zone is very clear; this zone was

enacted to collect sales tax. He said it calls this out in the beginning of the document. Mr. Smith said if the Board

feels the language is ambiguous and he is wrong or Professor Robertson is wrong then the Board looks at the intent

of the ordinance. The City staff supplied the Board with Planning Commission minutes, but that is not the only

source. The City Code for the PD-22 zone talks about the purpose of the zone. Mr. Washburn said the original zone

is there to collect sales tax because it is a main entry into the City. The office and residential uses are secondary to

the sales tax producing use and they are there to accommodate the sales tax base, but are not the main purpose. The

owners felt the best way to develop the property was to try and create the mixed use. The original PD-22 zone

included a requirement to provide 300,000 square feet of sales tax producing development inside the project. There

is no requirement for housing or office. The initial site plan covered 30 acres and the developers decided increasing

the size will make a better project. The City agreed and moved public works to accommodate the change. The

change also increased the size of frontage for sales tax producing uses on the frontage on 800 North and 1200 West.

Mr. Nielsen said he did not see where the Code states that. Mr. Washburn said it does in the first one. Mr. Nielsen

said the Code reads to ―maximize office, commercial and residential uses within the mixed use setting.‖ This does

not refer to the sales tax at all.

Mr. Rawson asked the sizes of other dealerships in the City. Mr. Dudley said he could approximate. The larger ones are along University Parkway; Nissan, Porsche, etc. They are probably on four acres. The dealerships

typically want 4-5 acres. The smaller ones are along State Street, which are generally used car dealerships.

Mr. Smith submitted a letter from Michael McOmber, real estate broker for Murdock Hyundai.

To the Orem City Board of Adjustments,

Our experience as commercial real estate brokers are familiar with the requirements of new car dealerships

along with the research we have conducted indicates that a new car auto dealership such as Murdock

Hyundai would require between five and six acres of land. This is typical of new car dealers who carry

large inventories and provide repair and warranty service.

If you have any further questions or concerns, please feel free to contact me.

“Board of Adjustment Minutes April 23, 2008”

9

Sincerely,

Michael McOmber

Owner

National Flex Rate Real Estate

mcomberteam@hotmail.com

Mr. Smith pointed out that the zone specifically allows new and used car dealerships. If it had said used car dealerships, which are typically smaller, they would not have a repair shop or any warranty work. New car

dealerships are big because they must carry the functions of a new car dealer. It would be impossible to locate a 5-6

acre new car dealership along 1200 West without facing other streets. Mr. Dudley said they were approached to find

a site in the project that would accommodate a dealership of that size and meet the criteria of facing 1200 West. He

designed the Maverik site and it was also required to face 1200 West and it has side frontage on 800 North. The

requirement on the Maverik was that it had to face and be along 1200 West.

Mr. Shorten asked how many new car dealerships are developed near or adjacent to a village-type development. Mr.

Dudley said it is typically not near these type of developments. However, the corridor is similar to 1300 South and

the perimeters of those developments abut residential. Mr. Shorten asked if those homes were equal to or greater in

value than those in this development. Mr. Dudley said no, this is an older neighborhood that existed prior to the

University Parkway.

Mr. Smith asked what the address of the Hyundai dealership may be. Mr. Dudley said it will probably be a 1200

West address because the building faces 1200 West. Mr. Smith then inquired about where cars are parked at

dealerships in Orem. Mr. Dudley said that dealerships that are on corner lots have displays that face both streets.

Mr. Rawson asked if the City considers 880 North to be a secondary access. Mr. Earl said it is an access. Mr.

Rawson then asked if there needs to be direct access from 1200 West or if indirect access was sufficient. Mr. Earl

said it must have its primary frontage and access on 1200 West. Mr. Rawson asked if access off of 880 North

qualifies as the primary access point. Mr. Earl said that when staff gave this interpretation it was not examining

where the proposed accesses were, that comes at the site plan stage.

Mr. Smith asked if 880 North is a public street. Mr. Dudley said it is a private street and no further access will be

allowed on 1200 West or 800 North. The drive by the Bank of Utah is a private drive.

Mr. Smith asked about the spacing between the edge of the property and 800 North Street. Mr. Dudley said between

traffic and the actual display area there would be about 60 feet. Mr. Smith then asked what the distance between the

dealership and 1200 West Street was. Mr. Dudley said it is a 20-foot landscape strip.

Mr. Earl said that Mr. Dudley had indicated that there is 60 feet between the pavement and the display stalls of the

dealership along 800 North. He asked if it was all owned by Northgate. Mr. Dudley said that some of it is UDOT

property. Mr. Earl asked how much of the landscape strip is UDOT‘s. Mr. Dudley said it appears that 40-feet is

owned by UDOT and 20-feet is owned by Northgate. All 60 feet of the landscape area will be landscaped by the developer. Mr. Earl asked if the 20-feet of landscaping is part of the same Northgate site plan for that parcel. Mr.

Clark asked who would maintain the landscaping along 800 North. Mr. Dudley said it will be maintained by the

business. Mr. Clark asked if there was anything in writing that enforces that. Mr. Dudley said it is written in the

ordinance. The City will furnish the water for the landscaping as their participation.

Mr. Shorten asked if 880 North dead ended at 980 West. Mr. Dudley said there is a four way stop at 880 North and

there is a light at 980 West. Mr. Stroud said there is another access for the Career College on the north side of the

property.

Mr. Smith asked Brad Whitaker, executive director for the Commission for Economic Development in Orem

(CEDO) to come forward.

Mr. Whitaker said CEDO is a nonprofit corporation that was formed as a business/government partnership in 1983

for economic development in Orem. Mr. Smith asked if Mr. Whitaker was familiar with the efforts to keep

Murdock Hyundai in Orem. Mr. Whitaker said he was. Mr. Smith then asked him to give a history of the efforts.

“Board of Adjustment Minutes April 23, 2008”

10

Mr. Earl objected to a history of the efforts to keep Murdock Hyundai on the grounds that the discussion was going

to matters that are irrelevant to the discussion. Mr. Smith said the staff has said the language is ambiguous and the

intent needs to be made clear. Mr. Smith said Mr. Whitaker is one of the eyewitnesses and the staff wants the Board

to rely on truncated minutes to determine the intent. The staff is objecting to the proof of intent. Mr. Shorten said

the applicant‘s counsel has made the point the language is not ambiguous. Mr. Shorten asked Mr. Whitaker to be

brief. Mr. Whitaker said car dealerships provide a lot of sales tax revenue and the City does not want to lose one to

another community. Murdock Hyundai provides more sales tax revenue than the anchor stores at the University Mall. They looked at numerous locations in the City; none of them have worked out. They then approached

Northgate developers and eventually decided to try to make it work. Mr. Smith asked if Mr. Whitaker was working

directly with the City to keep Murdock Hyundai in Orem. In the notice it states that the applicant has courted

Murdock Hyundai to relocate to the current 1.5 acres. Would it not be more accurate to say the City has asked the

applicant to try to keep Murdock Hyundai in the city? Mr. Whitaker said it has been a joint effort.

Mr. Earl renewed his objection because the discussion is going to what the City may have done to get Hyundai to

stay here; it is not going to the intent or the interpretation of the ordinance. Mr. Shorten agreed that the discussion is

going far afield. He said the point is the mind will only endure what the seat will and this discussion has already

gone on over 1.5 hours. He encouraged Mr. Smith to finish soon.

Mr. Smith asked Mr. Whitaker if he attended the Planning Commission or City Council meetings held for this

development. Mr. Whitaker said yes. Mr. Smith asked if there was ever any discussion about these other

requirements for an automobile dealership having more frontage on 1200 West than another street. Mr. Whitaker

said no. Mr. Earl objected to that question, saying we do not know who these discussions were with or when they

took place, etc. Mr. Smith said now he will have to take more time to go through the meetings. Mr. Shorten said he

could accept the fact that the City is desirous to have a firm and prosperous tax base and this happens all the time. Mr. Smith asked Mr. Whitaker what the purpose of the PD-22 zone is. Mr. Whitaker said it is established as the last

large tax base property in Orem. The secondary purpose was for housing.

Mr. Shorten asked Mr. Smith if he had more witnesses. Mr. Smith said yes and they are the applicants who were in

attendance at the Planning Commission meetings. The minutes are not reflective of what was discussed at these

meetings and he wants to put the full record on what was really discussed at these meetings.

Mr. Shorten said he is not a lawyer, but a retired nurse. It sounds like what is coming is hearsay against what is in

the written record and he is not in the mood to go through two to three hours of what somebody did or did not say.

He is willing to take some brief comments of what they felt they remember they said three years ago or last month.

This is making a mockery of the situation. He wants to get to the point and hear what the public has to say and then

have the Board discuss in public what can be done.

Mr. Smith said there is no rule against hearsay in this proceeding. Mr. Shorten said it is fine as long as it is labeled

hearsay. Mr. Earl said the City has the actual recording from that meeting. That item was probably about 30-40

minutes in length. If the Board wanted to receive it and listen to see if the minutes are accurate, he would be happy

to provide it. However, Mr. Earl said that would make it difficult to make a decision tonight. Mr. Shorten said someone is going to be hacked off by whatever the Board does.

Mr. Earl said that counsel is trying to establish a record in the event they decide to appeal this further in case of an

adverse decision. He is prepared to stipulate to allowing that portion of the 2005 Planning Commission meeting to

be part of the record. He is fine with that and it might obviate the need to call other witnesses to talk about what was

said at the Planning Commission meeting. Mr. Smith said he objected to that because it is already in the record and

the Planning Commission is not the governing body.

Mr. Shorten said the Board has been asked to decide whether or not the City did administer the rule that was adopted

in regards to a business facing 1200 West. The ancillary issue is the side lot, whether they can provide an acre and a

half for the car dealership or whether they can use the five acres.

Mr. Earl acknowledged that the minutes are from the Planning Commission and not the City Council and counsel for

Northgate can argue the meaning or effect of that, however, they can agree the minutes are from the Planning

Commission and a tape is available. Therefore, we do not need other witnesses to tell us what was or wasn‘t said at

“Board of Adjustment Minutes April 23, 2008”

11

that meeting. Mr. Nielsen said there are minutes from a City Council meeting where somebody made a motion, they

voted for it and three voted against it. Mr. Smith said the Board should not pay attention to that. Mr. Nielsen said

he read the manual because it is in there.

Mr. Smith said there were a lot of references to the site plans in the 2005 Planning Commission meeting. Mr. Smith

noted that the Board had been shown a site plan earlier during the staff report and that it meant this. Mr. Smith said

that another site plan was presented at that meeting and caused some of the confusion. He asked Mr. Washburn to explain this. Mr. Washburn said at the time they approached the Planning Commission in 2005 they had the Orem

City property under contract, but the contract had not been consummated. Part of the contract said the City Council

did not have to apply the PD-22 zone to the property. As they went to the City Council meeting they felt there were

three things that were going to happen. There was a possibility they would allow the entire property to be included

in the PD-22 zone, they would allow a part of it until a fair amount of commercial was developed, or there was the

possibility they might not allow any property at all to be included. During the discussion at the Planning

Commission, and what is not on the tape, is they are referring to two different maps. First, there is a concept map

drawn with the assumption they had the entire property, and there is another map that assumed the zoning is not

granted by the City Council, and the Planning Commission had to look at the amendments that went along with that.

In the minutes, there is a reference to Ida Smith, Planning Commission member, talking about the car lot running

into the big box. There was no big box at this location. She also asked if this would be in the mixed use area, which

was on the east area, not down by 1200 West. There was mention in the minutes of putting a line on the east. The

Planning Commission decided not to put a depth line on the eastern portion of the property. There was a question

asked if the developer was planning on putting the car lots along 800 North and from his memory the Planning

Commission was comfortable saying along and facing 1200 West Street.

Mr. Smith asked Bill Fairbanks to come forward.

Mr. Fairbanks, Orem, said Mr. Nielsen made a comment about this being a village concept. The developer has very

strict ratios that they have to meet. Mr. Nielsen said he understands that, his question was the attorney was referring

to the property owners as the ones with rights. He wanted to clarify that if someone bought the property prior to the

car lot being included shouldn‘t they be considered part of the process. Mr. Fairbanks said the purchases were made

after the change. In the areas A, B, & C the City requires 70% of the main floor areas in Area C to be sales tax

producing. Area B is required to have 50% on the main floor. There is no requirement in Area A. The developers

are under pressure from the City to produce sales tax. Mr. Shorten asked if everyone agrees with the designations

of A, B, & C. Mr. Fairbanks said that is the current designation. When the zone originally came in, the Public

Works property was not included. When the zoning was passed, Public Works was still functioning at the old

location. There was big box and mixed use on the concept. They did not intend on putting in a car lot in the mixed

use area. They were not going to come along 800 North and put a lot of dealerships. They are not allowed to have

frontage on 800 North; the State will not allow it. It was decided that 1200 West is the corridor for any automobile

related businesses. The Maverik had the same language as this and the City has already allowed them to build. Mr.

Fairbanks said that in the 2005 Planning Commission minutes the developers gave the Planning Commission the

option to limit how far east they could go from 1200 West. The Planning Commission just let it go and did not put

any limitations on anything. The residents are about two football fields away from them. Future residents in the B portion will be told in the beginning about what is allowed in the development. The building will be oriented in

order to have great views to the west and east.

Mr. Smith asked if the Maverik is more ―along‖ 800 North than it is ―along‖ 1200 West. Mr. Fairbanks said the

property line ended up being the same as along 1200 West because of the access required by the City Engineer. Mr.

Smith asked if the City raised this issue about the length on each street. Mr. Fairbanks said no. Maverik is in the

same zone and has the same wording.

Mr. Nielsen asked if the language ―only along and facing 1200 West‖ conflicts with the fact that the only entrance to

this site is from a private street. Mr. Fairbanks said the private street is considered the access to 1200 West. The

phrase in the Code is for the orientation of the building and the car lot and displays. They want to orient it to I-15.

Mr. Earl asked if Mr. Fairbanks was suggesting that at the time of the 2005 Planning Commission meeting, the

Commission was not referring to the concept plan that staff had included as an exhibit and weren‘t referring to the

―B‖ Area as the mixed use area. Mr. Fairbanks said that was included as a possible future use, but because they did

“Board of Adjustment Minutes April 23, 2008”

12

not own the land, the zoning was changed based on what they owned at the time with the possibility it could be

changed after the purchase of the City property. Mr. Earl asked Mr. Fairbanks if he was suggesting that when he

talked about not going into the mixed use area (during the 2005 Planning Commission meeting) was he suggesting

that the Planning Commission did not have the concept plan at that time and were not referring to that? Mr.

Fairbanks said that the Planning Commission did have that as a possible concept down the road but that they did not

own the ground yet and so the Planning Commission had to base their decision on the old map. Mr. Earl asked what

the total acreage is for the entire project. Mr. Fairbanks said it is now 65 and it was 30 before. Mr. Earl quoted the Planning Commission minutes of July 6, 2005:

Mr. (Paul) Washburn said he believes what is happening here is the concept plan becomes part of the

ordinance. As outlined in the concept plan, they are starting out with approximately 65 acres…

Mr. Earl asked Mr. Fairbanks if that quote did not seem to indicate that we were dealing with the entire 65 acres in

the concept plan at that time. Mr. Fairbanks said he was not sure what Mr. Washburn meant by that. Mr. Fairbanks

said it was his understanding that when they were in those meetings they only legally had the 30 acres with the

possibility of purchasing the other acreage. From his point of view, they were going from the old and transitioning

to the new, but were not into the new yet. When they were asked the question about whether that goes into mixed

use areas and it was asked what about the big boxes, he believed they were talking about the old map.

Mr. Washburn said that in May 2004 they entered into a contract to purchase property from Public Works and that

contract lapsed because the City was unable to come up with all the information necessary. Again in 2006 they

entered into another contract, changed it four times and it was finally purchased in 2006. They clearly did not

control all that property, most of the discussion in the meeting centered on the new concept plan. There was no

guarantee they would get their property and so the previous concept plan had to be considered.

Mr. Smith invited Julie Smith to come forward. Ms. Smith, Orem, said the public streets that are dedicated are 980 West and 900 North. The roads within the project are private roads and each owner owns halfway into the road.

Because of safety concerns, the traffic engineer is only allowing access from 880 North Street. The Utah Career

College is allowed a right in/out only from 1200 West. The only access allowed by the City is from 880 North

Street.

Mr. Nielsen said there is another entrance from the four way stop. Ms. Smith noted those are private roads. Mr.

Nielsen said he has been around the City a long time and he realizes the tax base is important to the coffers of the

City. When the ordinance states that the access is ―only and along 1200 West‖ he wonders if that is being defeated

by also allowing it from 880 North. Ms. Smith said they own their own driveway and their access is from 1200

West. Mr. Smith said the language in the ordinance does not say anything about the accesses, but concentrates on

the direction the building is facing. A site can have more than one access, their main access is along where they are

facing. Mr. Rawson said the Board is discussing the City‘s interpretation of the access.

Mr. Smith concluded his presentation. He requested having the last word before the Board deliberates.

Mr. Shorten suggested the Board take a 10 minute break.

Board of Adjustment Action: Mr. Rawson moved to take a 10-minute break. Mr. Nielsen seconded the motion. Those voting aye: Richard Rawson, Gerald Nielsen, Robert Clark, and David Shorten. The motion passed

unanimously.

Mr. Shorten opened the discussion to the public.

Clark Heringer, Orem, said he is the next largest property owner in the area. He has seen a lot of changes over the

years. If you look at this from a nonpartisan opinion, he does not care if there is a car dealership. He does not

understand from the resident‘s perspective the difference between a business with a parking lot or a car dealership

where cars are displayed. Either way it is asphalt and cars. If it is going to bring more revenue into the City then it

will be worth it.

Al Spencer, Orem, said this seems to him to be like a two year old pestering his mom until he gets his way. At the

City Council meeting by a 5-2 vote they decided they did not want that much of a car lot there and it was going

away from the intent of the village concept. One of the overheads referred to the development as a village, a car lot

is not a village. The neighbors anticipated there would be a walking area; there would be shops. This property was

“Board of Adjustment Minutes April 23, 2008”

13

sold to those condominium owners under that pretense. Mayor Jerry Washburn supposedly went to the developers

and asked for a car dealership, but voted against it during the City Council meeting. The Board of Adjustment

members should vote against it and let the owners fight it out in court. If the owners get their way, then the

neighbors will not be able to go to court because they do not have that kind of money. To bring a linguistic

professor to the meeting to tell the Board what ―front‖ means is the most ridiculous thing he has ever heard of. Mr.

Spencer said he has taught language to kids for 20 years. He has learned over the years their language consists of

words like, ―suck.‖ He thinks this meeting sucks. The owners want their way and mommy said no, so they are hoping daddy will say yes. He encouraged the Board to send the owners to the court and let the judges have it out.

No matter what you decide someone will be upset. He suggested ruling against the owners and let them go to court

because they can afford it. The neighbors offered a compromise at the last meeting and Murdock said they had to

have five acres.

Mr. Nielsen said the Board of Adjustment can only decide on the interpretation of the language in the Code. Mr.

Spencer said the Planning Commission minutes included in the packet show different intents. He said the public

only gets two minutes and the owner gets two hours.

Ty Rasmussen, Orem, said this has descended into a semantic abyss. He consulted the Merriam Webster dictionary

for a definition of ―along‖ and it says: ―In a line matching the length or direction of.‖ They looked at a dictionary

from the library and it states: ―used as a preposition, down the length of or down part of the length of something.‖

The long direction runs along 800 North. This is not that tough. There is a common definition. He asked the Board

members if they know where Orem Junior High School is located. If he were to describe to someone where Orem

Junior High School was he would say it is along 800 North between 800 West and 700 West. The actual address is

765 North 600 West. It does not face 800 North and there is no access to 800 North. The main access is from 700

North, but you would never say it is along 700 North. You can parse these words, but we know what ―along‖ means. The ordinance also talks about ―facing‖ and we have heard arguments twice from Mr. Dudley who said the

building is designed to face 1200 West and that the Maverik has frontage on 800 North. Those were slips of the

tongue, but they are important because anyone who looks at this is going to say the Hyundai dealership is along and

facing 800 North. They also made the argument that all the parking stalls are oriented so they face mostly towards

1200 West. When he looks at a car it is a three dimensional object, any direction you look at that car is part of the

display. If you look at print advertising or at the advertising on the television, they show the side of the car. The

display is clearly facing 800 North. You cannot get away from that. The developers are arguing that the language is

plain, but then they spent 1½ hours talking about intent. If the language is plain, how would you describe the

relationship of 800 North to the car dealership? That is the question that is being asked. If the Board was to

describe the location of this car dealership to any friends or family, you would say it is along 800 North. The good

attorney gets up and instructs the Board of Adjustment that ―along‖ and ―facing‖ has to be parsed exactly down and

have exact meanings. The fact of the matter is there is a common definition of what these are and the car dealership

will be along and facing 800 North. All their advertising will be oriented that way. Shopko faces north and Center

Street, but if you ask someone to describe where Shopko is they will tell you it is along or on State Street. It is

behind two other businesses. We can sit here and argue the words, but we know what the words mean. The car

dealership cannot get away from facing 800 North. If it truly faces 1200 West, it will be ineffective in selling cars.

The orientation, the banners or anything they put up will be focused on 800 North. There was the argument saying it is oriented to I-15, but he hopes the people on the freeway are not looking at the car lot signs while driving.

Kari Wood, Orem, said when she read the statement only along and facing 1200 West, she thought it meant nothing

can be along 800 North. If you look at any of the concept plans a car dealership was never compatible with those

things on the City website, Carter Construction website and the internet.

Jeff Plankum, Orem, said as you drive east bound the dealership is clearly facing 800 North.

Mr. Shorten closed the public hearing.

Mr. Earl noted that there had been a comment made earlier that there was no indication whether the City Council

gets the Planning Commission minutes. Mr. Earl stated that the Planning Commission minutes are always given to

the City Council every time an item goes before them. Loriann Merritt can testify to that fact. The Planning

Commission minutes are given to the City Council to help them know all the facts. Otherwise, if this did not happen

“Board of Adjustment Minutes April 23, 2008”

14

what would be the purpose of having a Planning Commission? The City Council sees what the comments are at the

Planning Commission meetings, and they see what the questions and concerns are.

Mr. Earl wanted to clear up another point regarding the comments Mr. Fairbanks made about what maps the

Planning Commission had before them when they were referencing that the auto dealership would not go into a

mixed use area. Mr. Earl indicated that he had the original staff report that went to the Planning Commission for the

July 6, 2005 meeting. Mr. Earl indicated that the areas shown on one of the pages in the staff report shows that the areas denoted as mixed use are exactly the same as shown in the concept plan that was submitted to the Board. He

indicated that it was clear that when statements were made in the Planning Commission meeting that it was not the

intent that an auto dealership would ever go into the mixed use areas, that was what they were talking about. Mr.

Earl passed out copies of the maps from the 2005 meeting.

“Board of Adjustment Minutes April 23, 2008”

15

Mr. Earl also acknowledged that the Planning Commission is not the deciding body. The City Council makes the

final decisions. Unfortunately, for whatever reason, the City Council did not have any specific discussion of the

auto dealership at their meeting. The Board can speculate why that was, but Mr. Earl argued that the Council read

the Planning Commission minutes and were satisfied with the explanations that were given by the Northgate representatives that in fact an auto dealership would not go along 800 North and it would not go into the mixed use

areas, that it would only be along 1200 West in the area of the map the staff had indicated. Mr. Earl argued that

given that record, there was no need for the City Council to have any further discussion on that. They likely thought

that was a settled point.

Mr. Earl referred to testimony of Mr. Dudley that on the plan Northgate had presented most of the car displays

would face west. In the current configuration that might be true, however, if you think about what is actually

visible, there is 580 feet of frontage along 800 North. The way they have configured it, there are parking or display

stalls facing 800 North. To somebody driving by or someone looking at that, it looks like the primary display focus

is out to 800 North. That is clearly contrary to the plain language of the ordinance and contrary to the intent. It was

also said that there will be 60 feet of space between the existing asphalt and where the display stalls start. Mr.

Dudley indicated that 40 feet of that is existing UDOT right-of-way and part of 800 North. So in reality there is

only 20 feet of landscaping that separates the displays from the street right-of-way. That area is still part of the site

plan of the auto dealership. There is 580 feet of dealership that is along 800 North. Mr. Earl took the position that

this is prohibited by the plain language of the ordinance which says only ―along 1200 West‖ and not 580 feet of

dealership property along 800 North.

Mr. Earl also noted that there was a comment made that the ordinance cannot be interpreted by putting things in

there that are not there. That doesn‘t make a whole lot of sense because an interpretation by definition is

interpreting and taking things and explaining what it meant and how it is applied. It is obviously not in the exact

language of the ordinance. By definition, in interpreting something you have to apply terms that are not written on

its face. Mr. Earl also made a comment regarding the size of dealerships in the City. He noted that the existing

Hyundai dealership in Orem is barely over one acre and that is a new car dealership. There are new car dealerships

on one acre. Mr. Earl then referred to Northgate‘s expert, Mr. Robertson who stated that the phrase in question

―means simply that there is only one front to the dealership and that front must be ‗along and facing 1200 West‘ –

certainly not along and facing 800 North‖ and then Mr. Robertson states, ―It would be inappropriate for there to be

frontage on 800 North.‖ Mr. Earl indicated he entirely agreed with that statement. There should be no frontage on

“Board of Adjustment Minutes April 23, 2008”

16

800 North. He noted that Northgate quoted from some City definitions in their presentation. The City Code defines

frontage to mean ―the width of the lot or parcel of land which faces or has one side adjacent to a dedicated street.‖

Even if the front of their proposed dealership is on 1200 West they also have ‗frontage‘ on one side on 800 North.

Their own expert has indicated it would be inappropriate for there to be frontage on 800 North. Even out of the

mouth of their expert, interpreting the ordinance should not allow them to do the configuration that they have shown

today.

Mr. Rawson asked if another viable business would buffer a car dealership on the south adjacent to 800 North. Mr.

Earl replied that when you say that there cannot be any frontage along 800 North what kind of buffer do you have to

have? Would a one foot buffer suffice or could it be ten feet? To interpret this to make any sense you would have to

have some other use in between the dealership and 800 North. Otherwise you could say is one inch enough or one

foot enough—you could get to a nonsensical interpretation. Mr. Rawson asked how ―use‖ is defined. Mr. Earl said

another use would be a permitted use such as a restaurant or a strip mall or any number of different uses. Mr.

Rawson asked if open space is a permitted use. Mr. Earl said that open space is a permitted use but it would have to

be a different lot. He said twenty feet of landscaping that was still part of the same property would not count as a

different use; it has to be a separate lot. If it‘s part of the same site plan it would still be part of the dealership use.

Mr. Rawson asked how the additional use would have access and be a viable use if it did not have access from 800

North or direct access from 1200 West. Mr. Earl said there would have to be cross access agreements which are

common in commercial developments throughout the City.

Mr. Nielsen asked if this site were going to be a big box store, if it would still have the requirement of not fronting

onto 800 North. Mr. Earl said the only restrictive language for ―only along and facing 1200 West has to do with the

auto dealerships. However, UDOT will not allow access onto 800 North. Mr. Nielsen noted the building faces

southwest. Mr. Earl said the building configuration conforms to the City‘s interpretation.

Mr. Smith said he appreciated the Board‘s patience. The phrase in question is about six words long that has been

brought before the Board for interpretation, ―only along and facing 1200 West.‖ They are definitely ―along 1200

West.‖ They are also ―along 800 North.‖ The Board must look at ―along‖ and ―facing‖ together. This evening he

has heard arguments that they are facing 800 North because it is a longer distance on 800 North. City ordinances are

very clear on this issue. This is a corner lot and the City Code states that ―a corner lot, the front lot line shall be the

public right-of-way line which forms a boundary of the lot, and which is most closely parallel with the front façade

of the primary structure on the lot.‖ He said that 1200 West is most closely parallel with the front façade of the

primary structure. You can make all the arguments you want but the fact still remains they are facing 1200 West.

Mr. Smith read from two opinions from the Utah Supreme Court, the Patterson case and the Cox vs. Provo case.

Neither of these cases go to the Planning Commission or what may have been in the minds of the City Council. The

Patterson vs. Utah County Board of Adjustments, 1995, talks about how the Board looks at a case. The first thing

the Board looks at is to see if the language is ambiguous. ―If there is an ambiguity or uncertainty in a portion of a

statute...‖ that is when you can go beyond the plain language, ―… it is proper to look at the entire act…‖ it does not

say you go back and look at what the Planning Commission discussed, but the entire act ―in order to discern its

meaning and intent.‖ That means you look at the entire zone or even the entire zoning of the City. ―…and if it is reasonably susceptible to different interpretations, the one should be chosen which best harmonizes with its general

purpose.‖ There were many purposes in the zone, but he submits to the Board there is nothing that is being done

here that is contrary to any language in the zone. The language of the zone says the purpose is to do various things,

for example some parts are mixed use, etc. There is a portion of the property that was set apart to generate sales tax.

It was meant to have commercial uses in these locations. The case goes on to say, ―Furthermore, because zoning

ordinances are in derogation of a property owners common law right to unrestricted use of his or her property,

provisions therein restricting property uses should be strictly construed and provisions permitting property uses

should be liberally construed in favor of the property owner.‖ That is Utah law. When the property owner is trying

to use their own property then that is where that goes. There is a footnote that cites about 10 other cases from other

jurisdictions to favor this proposition. One case says ―Land use restrictions are strictly construed in favor of land

owner.‖ Another case from Hawaii says ―Words in zoning regulations should be given the broadest meaning in

order to interpret in favor of property owners.‖ ―Language construed in favor of free use of the land.‖ ―Language in

zoning ordinance must be interpreted in favor of the property owner where doubt exists.‖

“Board of Adjustment Minutes April 23, 2008”

17

Mr. Smith then cited the Emmet Cox vs. Provo City. ―In interpreting the meaning of the ordinance we first look to

the plain language.‖ He said that has been the City‘s main argument, there is nothing that requires more length here

than there. ―If the plain language is ambiguous we may resort to other modes of construction. If we need to rely on

other modes of construction we must keep in mind that when interpreting ordinances primarily to give effect to the

City‘s intent. Importantly, statutes as with ordinances should be interpreted and applied according to commonly

accepted meaning, unless it would be unreasonably confused or conflict with the intent. If there is any doubt or

uncertainty as to the meaning or application of the provisions of an ordinance it is up to the City to analyze the ordinance in its entirety in light of this objection and to harmonize its purpose in accordance with its intended

purpose.‖ Mr. Smith pointed out the words ―new and used automobiles.‖ He said there may be existing auto dealers

that are one acre, but when new automobile dealers locate in new sites the evidence shows they need 5-6 acres. He

would argue there was the intent by the City Council to allow them to bring in a new or used automobile dealer. If

they wanted the developers to only have a used car lot, it should have said so. New car dealerships need more space.

Something with 5-6 acres will be adjacent to two streets, that is just how it is. So why did the City Council say to

bring in a new automobile dealer if they really intended to tie their hands and not allow them to do it. Mr. Smith

said the Board should look at the ordinance and it says what it says and we cannot read into it the restrictions of the

City. He asked the Board to uphold the plain language of the ordinance and allow them to have the use of their

property.

Mr. Shorten brought the discussion to the Board.

Mr. Nielsen said the Board is to determine if the staff provided the applicant with the correct interpretation of the

applicable Code. The language of ―only along and facing 1200 West‖ is the basis for this appeal. There was other

instruction about the size, width and length, but it seems the Board‘s decision deals with whether the language ―only

along and facing 1200 West‖ is clear or ambiguous. He thinks it is clear.

Mr. Clark agreed with Mr. Nielsen.

Mr. Rawson asked if an enlarged dealership can be placed on that corner. Mr. Clark said yes. Mr. Nielsen said the

City has another ordinance that can limit the size, but in that particular definition of that zone it is not addressed. He

said the staff‘s interpretation of ―Motor vehicles (new & used, including motorcycles and ATVs, only along and

facing 1200 West‖ includes four points.

1. An auto dealership must have its primary frontage and access on 1200 West. It meets this.

2. All dealership buildings must face toward 1200 West. The entrance is perpendicular to 1200 West because

of the curve.

3. All of the vehicle displays must face 1200 West. There is no problem with that.

4. The dealership may have some frontage on 800 North and may display vehicles adjacent to 800 North, but

the depth of the dealership (from 1200 West) should not exceed the length of the frontage on 1200 West.

That is the interpretation that the frontage cannot be smaller than the depth. He feels that is a restriction

that is not covered in the ordinance.

Mr. Rawson said his opinion is that the Assistant City Attorney‘s opinion, especially number four, does not seem to be reasonable and so extended as to determine depth versus the frontage. What is to say the City could not say 1½

times or 2 times the frontage or depth? It appears to be an arbitrary call. He does not recognize any language in the

Planning Commission minutes that suggest there is a definitive depth west to east. Earlier he raised the question as

to why or how big a dealership is. Is a dealership on an acre and a half sufficient? The Board is being asked to look

at this and indirectly interpret the intent of the City Council and perhaps the Planning Commission and this becomes

a very difficult charge.

Mr. Shorten said he agrees with what has been said that the rule is not ambiguous, it is clear and he understands the

intent. The intent is to have the business facing 1200 West. He believes that the City Council has ―punted‖ and the

Board gets to ―catch the ball.‖ He finds it incongruous of the City Council to support CEDO and through the Mayor

to work to keep a business in the City and then ―punt‖ and drop this in the Board‘s lap. Article 22-1-2 is purpose

and intent gives the City, through its zoning ordinances, the right to implement the adopted Master Plan for the

orderly and controlled growth of the City, to regulate lot sizes and the percentage of the lot that may be occupied,

and to regulate the location and use of buildings, structures and land for trade, industry, residents, or other purposes.

Mr. Shorten said that the Planning staff did their best to make an interpretation of a flawed ordinance written

“Board of Adjustment Minutes April 23, 2008”

18

specifically for this development. The business should face 1200 West and the majority of the lot or the property

should also border on that. The side lot should be equal to or less than the front lot. He may be in the minority, but

that is how it should be. The situation is salvageable. The City Council could pass ordinances that better identify

what they want. It is entirely possible that this land could be used and developed to the acreage desired by the

proposed tenant, but maybe not all facing 800 North.

Mr. Rawson said there is no discussion or intent about restricting the frontage on 800 North for car dealership or anything other than what is permitted. In earlier discussion, he asked the City Attorney if there is a potential

buyable lot that would buffer 800 North and the proposed car dealership. It was his estimation that his possible. As

he looks at the plan, it is very problematic. The Board is not here to make a judgment upon what can or cannot be

built on a lot that serves as a buffer, but he questions whether the intent to restrict the depth is flawed. He agrees

with the first three points.

Mr. Nielsen said the six words they have asked to move away from are clear and specific enough, he could not find

against them. Mr. Rawson asked if Mr. Nielsen referred to the language of ―only and along facing 1200 West,‖ and

whether it would not prohibit a car dealership with side frontage onto 800 North.

Board of Adjustment Action: Mr. Nielsen proposed the Board of Adjustment has found that the language of ―only

and along facing 1200 West‖ would not prohibit a car dealership with side frontage onto 800 North. He moved to

support the appeal to the Staff‘s interpretation. Mr. Clark seconded the motion.

Mr. Rawson said when there is a multi-use plan it is troubling to him that the permitted uses are not necessarily

compatible. When there is residential, commercial and mixed uses all within the same plan if it is not handled well,

as a professional appraisal, this can affect the value of the land. This approved use gives him trouble.

Mr. Nielsen said he spent 34 years working as a police officer in this City. From his experience dealing with crime,

traffic and other problems, if he were in that subdivision knowing how much crime is generated by a big box store,

traffic, deliveries, etc. he would personally like a car dealer instead of a box store.

Mr. Rawson suggested adding the interpretation by City staff is incorrect. Mr. Nielsen said he did not think that

needed to be added to his motion. Mr. Shorten said there needed to be a finding to support the motion. Mr. Nielsen

said the finding is that the words, ―only and along facing 1200 West‖ are clear. Mr. Rawson said the underlying

finding is that the City is incorrect.

Mr. Earl asked if he could help clarify the motion that Mr. Nielsen was making. Mr. Earl said if he understood

correctly Mr. Nielsen was saying that the City‘s interpretation of the ordinance was partially correct and partially

incorrect. Mr. Earl noted that the staff interpretation contained four points and he understood the Board to say that

they agreed with the first three outlined points, but the fourth point is where the Board felt the interpretation was

incorrect. Mr. Nielsen agreed with this. Mr. Earl said he understood the Board to be saying that a dealership could

extend the length of 800 North as the applicants are proposing to put it. Mr. Nielsen said that is not the Board‘s

issue as to the size of the dealership. They can have a dealership facing 1200 West and comply with that wording. The size of the dealership has nothing to do with that. That is up to the legislative body. The wording of the

ordinance is clear enough, the facing of the building and the access is clear enough in the ordinance.

Mr. Smith stated the wording is consistent with the ordinance. Mr. Nielsen said there may be issues that can be

raised, but that is not for the Board to decide. The fact is they can have a dealership and the size is not the issue.

Mr. Shorten disagreed and said that is the crux of the issue. The whole point is that the staff has interpreted the

ordinance limiting the side lot to 1½ acres. The applicant wants a side border that is larger than the front border and

the staff is using that as the basis for that ruling. The Board has to find whether the staff has correctly interpreted

the ordinance.

Board of Adjustment Action: Mr. Nielsen proposed that after reading the words, ―only along and facing 1200

West,‖ the location of the access is met, the length and the depth also. The Board disagrees with the City staff‘s

interpretation.

Mr. Earl said there is the option one side or the other may appeal this decision, the motion needs to be very clear.

“Board of Adjustment Minutes April 23, 2008”

19

Mr. Nielsen withdrew his motion.

Board of Adjustment Action: Mr. Rawson proposed the Board of Adjustment has found that:

1. The City staff has exceeded a reasonable interpretation with regards to Item #4 in the City‘s interpretation

of Orem City code Section 22-11-35(D), concerning permitted use 5511; and

2. The ordinance does not prohibit the applicant from doing the proposed plan.

Mr. Nielsen seconded the motion. Those voting aye: Robert Clark, Gerald Nielsen, and Richard Rawson. Those voting nay: David Shorten. The motion passed.

MINUTES David Shorten called for a motion to approve the draft minutes of the August 22, 2007 meeting. Mr. Clark moved

to approve the meeting minutes for August 22, 2007. Mr. Rawson seconded the motion. Those voting aye: Robert

Clark, Gerald Nielsen, Richard Rawson, and David Shorten. The motion passed unanimously.

ADJOURN David Shorten called for a motion to adjourn. Mr. Rawson moved to adjourn. Mr. Nielsen seconded the motion.

Those voting aye: Robert Clark, L Gerald Nielsen, Richard Rawson, and David Shorten. The motion passed

unanimously.

Adjourn: 9:23 p.m.

David Stroud

Planner

Approved: June 25, 2008