Parties: Jean Howard Chappell and Wayne County

Issued: June 15, 2023

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Conditional Use Applications

Compliance with Land Use Ordinances

Interpretation of Ordinances

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The town may lawfully withhold a building permit to rebuild a primary dwelling on a lot that includes an accessory dwelling unit until the property owners secure a conditional use permit in accordance with town code.

The subject property did have a legal non-conforming use to allow two residences on one lot this lapsed when the original dilapidated residence was abandoned when it sat vacant and unused for several years and was then torn down.

 Issues

May the town lawfully withhold a building permit to rebuild a primary dwelling on a lot that includes an accessory dwelling unit? May the town require that the property owners secure a conditional use permit or a variance before the building permit is issued?

Summary of Advisory Opinion

The Subject Property is in the Residential Agriculture zone which allows one single-family residence to occupy each lot as a permitted use and allows a second dwelling as a conditional use. As such, the Town may require that a conditional use application be processed and approved before a building permit for a second residence is issued. A variance is not an appropriate tool for resolving this type of an issue.

The Subject Property previously had a legal non-conforming right to allow two residences on one lot, but this right lapsed when the original dilapidated residence was abandoned when it sat vacant and unused for several years and was then torn down.

Review

A Request for an Advisory Opinion may be filed at any time prior to the rendering of a final decision by a local land use appeal authority under the provisions of Title 13, Chapter 43, Section 205 of the Utah Code. An advisory opinion is meant to provide an early review, before any duty to exhaust administrative remedies, of significant land use questions so that those involved in a land use application or other specific land use disputes can have an independent review of an issue. It is hoped that this can help the parties avoid litigation, resolve differences in a fair and neutral forum, and understand the relevant law. The decision is not binding, but, as explained at the end of this opinion, may have some effect on the long-term cost of resolving such issues in the courts.

A Request for an Advisory Opinion was received from Jean Howard Chappell (the property owner) on September 22, 3023. A copy of that request was sent via certified mail to DeRae T. Fillmore, Commission Chair, Wayne County HC 61 Box 13, Fremont, Utah 84747 as well as Mayor Burke Torgerson, Town of Lyman, PO Box 1382, Lyman, Utah 84749.

Evidence

The Ombudsman’s Office reviewed the following relevant documents and information prior to completing this Advisory Opinion:

1. Request for Advisory Opinion submitted by Jean Howard Chappell on September 21, 2022.
2. Email from Colleen Allen, on behalf of Wayne County, on November 10, 2022.
3. Email from Jean Howard Chappell on November 29, 2022.

Background

This Advisory Opinion asks whether a property may have two separate residences on a single lot. The property is in the Residential Agriculture zone which allows one residence per lot as a permitted use and allows a second dwelling as a conditional use. Historically, the property has had two separate residences on the lot, but one was recently torn down after the ceiling caved in and it had been vacant for several years. The property owners now ask whether the town may require them to secure a conditional use permit before rebuilding the torn-down residence.

In 1995, brothers Paul and Kirk Chappell (“Property Owners”) purchased a 1.27-acre property (the “Subject Property”) in the Town of Lyman, Utah (the “Town”). The Subject Property included an older residence that had fallen into disrepair with a trailer attached to provide additional bedrooms for kids and a separate garage/shop.

In 1997, the Property Owners removed the trailer and made minor repairs to the residence. They also poured a cement foundation and moved a 300 square foot log cabin onto the property to provide additional housing. At the time the log cabin was placed, the Town had not adopted zoning ordinances. In the absence of ordinances precluding two residences on one lot, the configuration was completely legal.

In May of 2013, the Town adopted then-existing Wayne County zoning ordinances as its own (the “Town Code”). These ordinances have remained unchanged since their adoption. Under this Town Code, the Subject Property is zoned Residential Agriculture (RA).

In 2014, the Property Owners sought to get a building permit for work they were doing on the log cabin. Following a dispute, which included an Advisory Opinion from this office, the Town issued the Property Owners a permit in 2015.[1] At that time, the property lawfully included one residence on the property, which was, at this point, in a dilapidated state, as well as the newly improved log cabin, which was considered an Accessory Dwelling Unit (“ADU”). This configuration was lawful not because the then-existing code allowed it, but because the two residences pre-dated the adoption of zoning, so they were legal non-conforming or “grandfathered” uses.

In 2015, the Property Owners (now Kirk and wife Jean) began living in the log cabin. The other run-down dwelling remained vacant from that time forward and the utilities were turned off indefinitely.

In the fall of 2021, the Property Owners began preparations to replace the dilapidated residence. Electricity was run directly to the log cabin (not through the other residence as it had been), building plans were purchased, a surveyor employed to survey the property, and percolation tests ordered. In May of 2022, the dwelling was torn down and removed as a safety precaution after the ceiling had caved in, and in July of 2022, the Property Owners submitted a building permit application to build a replacement dwelling.

As a condition of building permit approval, the Town required the Property Owners to meet the standards of the current zoning code, which allows two residences per lot only where a conditional use permit has been secured for the second dwelling.

Alternatively, the Town directed the Property Owners to obtain a variance. It is not clear why a variance was suggested or approved.[2] In an apparent attempt to comply with the Town’s direction, the Property owners obtained a variance in the fall of 2022. However, it appears that the Town later recognized the variance did not solve the problem and continued to push for solutions that comply with Town ordinances.

Through the process, it appears the Town has also suggested that the Subject Property be divided into two lots and a single-family dwelling could be built on both. At one point, it was suggested that the Property Owners “sign a Conditional Use Permit,” but the Property Owners refused because they felt they were entitled to the permit without additional, open-ended conditions.

The Property Owners maintain that “primary dwellings” are permitted in this zone as a matter of right, without need for a conditional use permit and that a variance is not an appropriate land use tool in this situation. The Property Owners argue that they are looking to replace the torn-down “primary residence”, and that the log cabin is and always has been a lawful ADU. Accordingly, the Property Owners maintain that a single-family dwelling is permitted in this zone, so their building permit should be approved without requiring extra steps or permits. They further object to the ADU being labeled the “primary dwelling” as it has always been an accessory dwelling in their opinion.

The Property Owners also point out that numerous other lots within town have detached accessory dwelling unit and have not been required to secure additional permits or divide their lots.

The Town maintains that the Town Code allows two residences per lot only where a conditional use permit has been secured. The Town asserts that once the one residence was torn down, the property lost its legal non-conforming status, the log cabin became the primary dwelling for purposes of interpreting the current code, and a conditional use permit must be issued before the residence may be replaced.

Accordingly, the Property Owners have requested this Advisory Opinion from the Property Rights Ombudsman to determine whether the Town may require that the property owners secure a conditional use permit or a variance before receiving a building permit to construct the second dwelling.[3]

Analysis

The existing Residential Agriculture (RA) zone allows for one residence per lot as a matter of right. The zone also allows the addition of a detached accessory dwelling unit, or ADU, for occupancy by the owner or employee of the owner, if a conditional use permit is secured. The Town Code does not otherwise allow for two residential structures to be located on one lot.

Throughout the record, the Property Owners maintain that they are merely seeking to replace the “primary residence” which was torn down. It appears the Town Code does not recognize this distinction in this way and does not support this interpretation. The Town Code outlines how to get a building permit for a second residence by securing a conditional use permit. In the Town Code, the second residence is called an ADU. The Town Code does not separately address how to get a permit for a new primary residence when what was formerly an ADU already exists.

I.     Residential Agriculture Zone permits one Single-Family Dwelling per lot

As an initial matter, the Residential Agriculture Zone allows for one Single-Family Dwelling dwelling unit to occupy each lot, the unit designed to be occupied by one (1) family.[4] Furthermore, the Zoning Administrator is authorized as the Land Use Authority responsible to review and approve, approve with revisions, or deny all Permitted P-1 Use Applications.[5]

The only option available for the second dwelling is an Accessory Dwelling Unit, which may be allowed with a conditional use permit. The Town Code stipulates that an “Accessory Dwelling Unit for a Relative or Employee” requires a conditional use permit in the Residential Agriculture zone. An ADU is defined as “An attached, or detached dwelling unit for the occupancy for the owner or a relative or employee of the owner, and incidental and clearly subordinate to the existing primary building located on the same lot as the primary building and connected to the same utilities and utility meters as the primary building and meeting all requirements of the adopted Building Codes, and Land Use Ordinances, as applicable. The Town Council is the Land Use Authority to approve Conditional Use Applications.”[6]

In summary, the Residential Agriculture zone allows one single-family residence to occupy each lot as a primary permitted use and allows a second dwelling, or ADU, as a conditional use only.

II.     The original dilapidated residence was abandoned, and therefore Property Owners do not have a legal non-conforming use for two dwellings without a permit

As the Town didn’t adopt a zoning code until 2013, when the original, dilapidated and now-torn-down residence as well as the log cabin ADU were originally built in 1997, having two residences on one lot was legal in the absence of any regulation prohibiting the same.

After adoption of the current zoning code which allows only one dwelling without a conditional use permit, the use of the two dwellings could be legally maintained because it was a legal non-conforming use, often referred to as “grandfathered.” A legal non-conforming use is protected by Utah state code and may be continued by the present or a future property owner until abandoned.

According to Utah Code § 10-9a-103(44):

“Nonconforming use" means a use of land that:

(a) legally existed before the current land use designation;

(b) has been maintained continuously since the time the land use ordinance regulation governing the land changed; and

(c) because of one or more subsequent land use ordinances does not conform to the regulations that now govern the use of the land.

The construction of a new residence on the Subject Property to be used as a secondary dwelling must follow current land use ordinances unless the Property Owners can establish that they have a legal non-conforming use[7] which is “grandfathered” and may be continued.

The parties appear to agree that as of 2015, the Subject Property lawfully contained two separate residences – the original dwelling unit (the dilapidated home) as well as an accessory dwelling unit (the improved log cabin which was later moved to the lot and therefore designated as the ADU). The two residences were legal because they existed before the Town adopted a zoning code regulating such uses.

The Town argues that the ability to have two residences on the property by right lapsed either when the original dilapidated residence was abandoned, or alternatively, when it was torn down and removed after the roof collapsed.

According to state law, the legislative body of the municipality may provide for either the “restoration, reconstruction . . . or substitution of nonconforming uses upon the terms and conditions set forth in the land use ordinance,” as well as the “termination of a nonconforming use due to its abandonment.”[8]

Town Code § 1109 details how a nonconforming use is terminated due to abandonment.

2) Abandonment may be presumed to have occurred if:

1. 1. 1. a) a majority of the primary structure associated with the non-conforming use has been voluntarily demolished without prior written agreement with the [Town] regarding an extension of the non-conforming use.
      2. b) The use has been discontinued for a minimum period of one (1) year; or
      3. c) The primary building associated with the nonconforming use remains vacant for a minimum period of one (1) year.

Therefore, according to the Town Code, because the original residence was demolished without a prior written agreement with the Town regarding the extension of the non-conforming use, and the original building associated with the nonconforming use remained vacant for several years, the legal non-conforming use for two dwellings by right has lapsed and any new structures built on the property must conform to current land use ordinances.[9]

To refute this, the Property Owners have argued that the log cabin has always been an ADU, an accessory use, and was recognized as such in 2015 when final improvements to the log cabin were permitted. Therefore, they argue, because a “primary residence” is a permitted use in the Residential Agriculture zone, and the log cabin is an ADU, no additional steps are required to permit the replacement “primary residence.”

However, when the original residence was torn down and/or abandoned due to lack of use, the log cabin ceased being used as an “accessory dwelling unit.” Town Code requires that “all accessory buildings or accessory uses shall only be permitted concurrently with, or following, the establishment of a primary building or primary use.”[10] Without some other viable primary residence structure, the occupation of the accessory structure—as the only residential structure on the property—becomes the legally permissible primary use on the property.[11]

In summary, when the dilapidated original residence was abandoned either due to lack of use for over a year or when it was torn down, the legal non-conforming right to have two residences on one lot without a conditional use permit lapsed. Similarly, at that time, the log cabin became the primary use on the lot and an additional requested dwelling would need to be approved as an ADU.

III.     Conditional Use Permit required for second residence in Residential Agriculture Zone

The Town Code allows one single-family residence as a permitted use in the Residential Agriculture zone and allows a second residence/ADU as a conditional use.[12]

Approving a conditional use is an administrative proceeding.[13] The Town Council acts as the Land Use Authority making the decision to approve, approve with conditions, or deny a conditional use permit application.[14]

As an administrative decision “if the Conditional Use . . . Application complies with all requirements of this Ordinance, the Building Codes, as adopted, and all other applicable Land Use Ordinances, as adopted, the [Town Council] shall approve the Application, with or without revisions, requirements, and conditions determined necessary for compliance to the requirements of this Ordinance.”[15]

State law provides that “a land use authority shall approve a conditional use if reasonable conditions are proposed, or can be imposed, to mitigate the reasonably anticipated detrimental effects of the proposed use in accordance with applicable standards.”[16] This means the Town Council must approve a conditional use permit unless detrimental impacts are identified, in accordance with standards in the local ordinance, that cannot be mitigated through reasonable conditions. Note that only those detrimental effects anticipated in the ordinance can be considered. Note also that detrimental effects must only be mitigated, not eliminated. In practice, this means conditional use permits must virtually always be approved.

The Property Owners have pointed out that numerous other lots in the area have two residences without needing to be split. The Town may not ignore the Code because “others are doing it,” but this may provide support for the premise that there are no detrimental effects associated with the proposed ADU, or at least that if there are reasonably anticipated detrimental effects, they can simply and easily be mitigated with limited conditions.

In summary, the Town Code requires that a conditional use application be processed and approved before a building permit for a second residence is issued for the Subject Property. Conditional use applications must be approved unless reasonably anticipated detrimental effects are identified, in light of the local code’s standards, and cannot be appropriately mitigated.

IV.     Variance not required for second residence in the Residential Agriculture zone

The Town had the Property Owners apply for, and they were granted, a variance to permit the building of the disputed replacement residence. It is not clear from Town Code why this path was followed, however, the good faith effort to resolve the dispute is noted.

Regardless, a variance is not required to permit the disputed replacement residence, as the Town Code already allows for this through a conditional use permit. Accordingly, a variance simply isn’t the appropriate tool to resolve this matter.

Conclusion

The Subject Property is in the Residential Agriculture zone which allows one single-family residence to occupy each lot as a permitted use and allows a second dwelling as a conditional use. As such, the Town may appropriately require that a conditional use application be processed and approved before a building permit for a second residence is issued. A variance is not the appropriate tool to resolve this matter.

The Subject Property did have a prior legal non-conforming right to use two residences on one lot but this right lapsed when the original dilapidated residence was abandoned either when it was vacant and unused for several years or when it was torn down. Such a use, now, must be approved insofar as it complies with the land use standards currently in place.

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Jordan S. Cullimore, Lead Attorney

Office of the Property Rights Ombudsman

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NOTE:

This is an advisory opinion as defined in § 13-43-205 of the Utah Code. It does not constitute legal advice, and is not to be construed as reflecting the opinions or policy of the State of Utah or the Department of Commerce. The opinions expressed are arrived at based on a summary review of the factual situation involved in this specific matter, and may or may not reflect the opinion that might be expressed in another matter where the facts and circumstances are different or where the relevant law may have changed.

While the author is an attorney and has prepared this opinion in light of his understanding of the relevant law, he does not represent anyone involved in this matter. Anyone with an interest in these issues who must protect that interest should seek the advice of his or her own legal counsel and not rely on this document as a definitive statement of how to protect or advance his interest.

An advisory opinion issued by the Office of the Property Rights Ombudsman is not binding on any party to a dispute involving land use law. If the same issue that is the subject of an advisory opinion is listed as a cause of action in litigation, and that cause of action is litigated on the same facts and circumstances and is resolved consistent with the advisory opinion, the substantially prevailing party on that cause of action may collect reasonable attorney fees and court costs pertaining to the development of that cause of action from the date of the delivery of the advisory opinion to the date of the court’s resolution. Additionally, a civil penalty may also be available if the court finds that the opposing party—if either a land use applicant or a government entity—knowingly and intentionally violated the law governing that cause of action.

Evidence of a review by the Office of the Property Rights Ombudsman and the opinions, writings, findings, and determinations of the Office of the Property Rights Ombudsman are not admissible as evidence in a judicial action, except in small claims court, a judicial review of arbitration, or in determining costs and legal fees as explained above.

The Advisory Opinion process is an alternative dispute resolution process. Advisory Opinions are intended to assist parties to resolve disputes and avoid litigation. All of the statutory procedures in place for Advisory Opinions, as well as the internal policies of the Office of the Property Rights Ombudsman, are designed to maximize the opportunity to resolve disputes in a friendly and mutually beneficial manner. The Advisory Opinion attorney fees and civil penalty provisions, found in § 13-43-206 of the Utah Code, are also designed to encourage dispute resolution. By statute they are awarded in very narrow circumstances, and even if those circumstances are met, the judge maintains discretion regarding whether to award them.

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Endnotes

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 [1] Advisory Opinion 161, Kirk Chappell / Town of Lyman, August 25, 2015.

[2] A variance is a modification of a zoning requirement made necessary because some unique aspect of a parcel makes the requirement burdensome or unfair. Variances may be granted to adjust such zoning standards as setbacks or height limitations. Uses, however, such as allowing a second dwelling, may not be adjusted via a variance.

[3] As is common in smaller communities, the duties for approving and issuing building permits is shared among Town and county personnel. There has been a fair amount of back and forth among the various parties where the Property Owners were told by one party that their permit had been issued and another that it could not be picked up until additional approvals had been given. The Property Owners requested that this Advisory Opinion address this frustration and assignment of duties. This opinion will not be able to sort out this issue. We can answer whether the Property Owners are entitled to obtain a permit, or whether they must seek additional approvals.

[4] Town Code Appendix A, Dwelling, Single Family.

[5] Town Code § 702(1).

[6] Town Code § 202(1)(d).

[7] Arguably, the building may also be considered a “legal non-complying structure” but the analysis is the identical, so for clarity, only the “legal non-conforming use” will be discussed.

[8] Utah Code § 10-9a-511(2)(a), (c).

[9] The analysis for a “legal non-conforming structure” would have the same result. The grandfathered status would have lapsed when the Property Owners demolished the non-complying structure. See Lyman Town Code § 1108(4)(b).

[10] Town Code § 1706(1).

[11] One concern the Property Owners expressed over the designation of the log cabin as the primary dwelling is the belief that any subsequently permitted primary residence could not be larger than the log cabin. This is not a requirement expressed in the Town Code. The new residence may be larger than the log cabin. Furthermore, the Town Code does not have separate requirements for primary buildings and accessory dwelling units. The primary residence is “primary” because it was there first and the ADU the “accessory” because it is built second. That is the only distinction the Code makes.

[12] Town Code Appendix A, Dwelling, Single Family.

[13] Town Code § 801.

[14] Town Code § 302(3).

[15] Town Code § 806.

[16] Utah Code § 10-9a-507(2)(a).