Email sent to Mayor Bert Wilson and others at the City of Lehi, warning them to OBEY the LAW regarding my appeals

Email sent to Mayor Bert Wilson, City Attorney Ryan Woods and Morgan Cummings, Jason Walker and the City Council on June 2, 2016.

Ryan,

Read this extremely carefully, especially the part towards the end regarding Board of Adjustment procedure. When the Board of Adjustments convene to hear my appeal, I advise you to advise the Board members to be in compliance when it comes to identifying their membership in the LDS Church as a potential conflict of interest.

Please read extremely carefully.  I am working with a Land Use Attorney and if I am not successful in my appeal before the Board of Adjustments, I plan to file an appeal within 30 days in district court.  If ANY of the following procedures are not followed to the letter of the law, this will be used in future court actions!!!!!!!! The attorney I have been working with is well aware of both local, State and Federal land use statutes, I strongly suggest you follow the LAW regarding my appeals!!!!!

I will be seeking reimbursement of my attorney fees in court if I am successful (in court) in requiring the City of Lehi to follow its own Land Use codes.

I strongly suggest you give the following information to ALL those who serve on the board of adjustments!!!!!

It cannot be said, I did not give you prior warning on multiple occasions. Please read the following extremely carefully, word for word! Adherence to the following is a MUST, a SHALL, not a SHOULD or MAY. All future court action will address in part what you read below.

Attorney Representation

While the focus of conflict of interest consideration is on the decision makers, conflicts by staff members advising the decision makers can occasionally be problematic, especially for attorneys advising a board making land use decisions.  Surveys of various jurisdictions indicate it is very common for the city or county attorney (or those appointed to assist the Board) to provide legal advice to the boards making special and conditional use permit decisions and variance decisions.  In both of these types of quasi-judicial matters, some 90 percent of the jurisdictions reported that the jurisdiction’s attorney provided legal representation for the decision-making board.  When this arrangement is used, the jurisdiction’s counsel must take care to avoid playing an active role assisting staff or advocating before the board while also providing legal advice to the board.

Comment: IF, the City retains the services of an attorney to assist the Board (Brian Haws), I caution you to limit his role and that he follow State Statute word for word.  I will make this a issue going forward in any future court action.  

Nearly 10 months ago I sent you and email regarding what I believed to be ethics violations on part of the staff and those appointed to the planning commission.  You have ignored my request to have those individuals as it relates to the Family Search project mention in ALL meetings that they are a member of the LDS Church (if they are a member).

I know there has been a clear cut violation of ethics as it relates to staff and those appointed to review the two Family Search applications. There are remedies and penalties for ignoring this very specific and important portion of the law and it will be critical for me to present these violations if this matter ends up before the courts (which I am fully prepared to do! 4^th District and  10^th Circuit Court of Appeals)

I sent you an email indicating I do not believe those appointed to the board of appeals can hear my appeal if they are members of the LDS Church, I am very serious about this.  You may think otherwise, but I believe my position in a court of law will overcome any personal opinions one might have otherwise to suggest that members of the LDS Church can hear matters about the LDS Church and not be biases, prejudiced, impartial and completely open minded.

Below you will find just a few items regarding ethics that I have researched.  I will not go into depth as I have in my notes, but give you the essence of what I am currently researching as it relates to ethics (The attorney I have been consulting with has the full research). The substance of what I am researching and what I will provide you in this email forms a basis for a court appeal.  I have only begun my research and will continue to look at local, state and federal case law.  I have added a couple of narratives which I believe you should very carefully read because it will require action on your part prior to my appeal hearing.

Ethics and the adherence to the ethics law is critical and should never be taken lightly or ignored or dismissed as unimportant! I have made this an issue at the city of Lehi for 10 months and NO ONE to date seems to think this is important. In fact, EVERYONE at the City of Lehi, Staff and those appointed or elected have made a conscious choice to NOT adhere to the ethics standards as set forth by the State of Utah as required.
This will be a very costly mistake, I assure you.  This sort of behavior spills over into DRC and the Planning Commissions who seem to believe adherence to the law is optional and that all the laws (codes) as set forth by the city are merely suggestions. I believe a clear cut review of the attitudes and behaviors expressed by the staff and those who serve on the planning commission will in the end be detrimental to the application (s) as presented by the LDS Church through their architects.

Here is a bit of my research (not in any type of order - topical in nature, the attorney I have consulted with has all the case law associated with these topics).

Handbook for Appeal Authorities

An Appeal Authority must know both know the law and possess the courage to follow it.

4. Ethics

10-9a-701

Brief summary – ANY PERSONAL INTEREST WHICH CREATES A CONFLICT WITH YOUR PUBLIC DUTIES MUST BE DISCLOSED IN OPEN MEETING AND SUBMITTED TO THE MUNICIPALITY ANNUALLY IN A DISCLOSURE FORM.

Comment: I have not done this and I have been on the Board of Adjustments for over 2 years.  I would like to see the forms submitted by other Board of Adjustment members and I would like them to publicly state they are a member (if they are) of the organization (the LDS Church) that they will be hearing the appeal about.. (LDS Church Members hearing a matter about the LDS Church). In my opinion, a conflict of interest exist whereas the members CANNOT be subjective are prejudice and are biases that make it difficult to carry out their fiduciary duties of being impartial and of clear mind and thought.

Comment: I have repeatedly instructed the staff at DRC and the Planning Commissioners publicly acknowledge when it comes to this particular project involving the LDS Church( if they are a member) to publicly announce their membership in the church and whether or not they are or have ever been a worthy of a Temple recommend (do they currently hold a Temple recommend?).  This has not been done and it is my opinion, this is a clear violation of ethics.

"The fairness doctrine REQUIRES you to abstain from voting on a matter on which you have a material conflict of interest."

Comment: These members if they are LDS have a material conflict of interest and MUST abstain from voting. I will go into this a little later in this brief.

Comment:  When the Family Search genealogy center opens, all members of the staff at Lehi, the planning commission and those elected will have easy access to center which is a benefit to those who work at or serve the city.

“A court has no interest in making land use decisions for you; it is interested in making sure that you followed due process, obeyed the laws as written, and protected the rights of everyone involved.”

“The Appeal Authority’s decision MUST be based on the law as it is written in the land use ordinance.” 

Comment:  I will be watching for this.  I will easily be able to show that the staff at the City and the Planning Commission did not follow the law (follow the Lehi Development code, word for word, exactly as it is written).  I will easily be able to show that the staff and the planning commission did not follow proper procedure when it came to approving the Family Search Plat, the commercial office building and the LDS Stake Center.  I will be able to demonstrate that the LDS Church was required to submit a grading permit application and did not and is grading the Family Search plat illegally.  The question is this?  Will the Board of Adjustments follow the law or will they like everyone else at the City of Lehi ignore the law?  

“State law gives municipalities the option of adopting their own standards of review for appeals. The municipality could require the Appeal Authority to hear all evidence, including new evidence, and decide the matter as if the land use authority had not already made a determination of rights. This is called “de novo”. Alternately, the municipality could require the Appeal Authority to review an appeal ‘on the record”, to look only at what had been submitted to the land use authority, and then decide."

"Many jurisdictions will allow the review authority to take new evidence and hear the matter as if it were new or “de novo”. If the city or town does not designate the standard of review, state law assumes that the review will be ‘de novo”.  As such, the appeal authority would be required to allow the appellant and the respondent to submit any relevant evidence on the appeal.”

Comment: Lehi does not specify and therefore this appeal is being heard De Novo.

“Whether the Appeal Authority takes new evidence or relies only on the record before the land use authority, the appeal authority must determine whether the decision of the land use authority was a correct interpretation and application of the law. This correctness standard is found in 10-9a-707(3)."

Key, in processing each petition separately it is necessary that the appeal authority cite the law, have the minutes reflect that the law was read and interpreted to the facts of the case, and that every effort was made to apply the law as written to the specific situation.

Comment:  EACH PETITION (EACH APPEAL, SEPERATELY )

"Your job on these appeals is very limited in scope. You should ask:

1 Did the land use authority correctly interpret the factual situation?

2 Did the land use authority correctly apply the law as written?

3 Did the land use authority violate due process or any rule of procedure?"

"10-9a-706

Each appeal authority shall respect the due process rights of each of the participants."

"The appeal authority may not ignore the law."

"Your role is to determine if the facts were interpreted correctly and whether the law was correctly applied."

"Remember: the person making the appeal has the burden of proving that an error has been made."

Comment:  I intend to prove my case beyond a shadow of a doubt.

Here are some basic rules that apply if you have a Board of Adjustments.

"Remember that you are not there representing a specific neighborhood, business or interest. Your responsibility is to protect the public good and apply the law which has been defined in the land use ordinances and state law."

Comment:  Interest = LDS Church of which you are a member. The LDS Church is also a business of which many are members of that business. 

You are subject to the same rules of ethics and procedures as elected officials.

"List of shalts for appeal authority member.

Preview materials for cases and take field trips when appropriate."

Comment:  I would like to bring the board of appeals members to my neighborhood and show them the area; in fact, I would like to make this a requirement of this board of appeals hearing.

"Ask questions if you need to Represent the good of the community rather than the good of the few."

Community:  Not the LDS Church and not staff.  This is not time to placate staff, the planning commissioners, the mayor, city administrators or any other person at the city who also happens to be an LDS church member.

"Be knowledgeable and respectful of constitutional rights."

"Become familiar with, and respect the laws of the country, the state, and the city in which you live"

Comment:  This is critically important that they are familiar with ALL the laws of the country, state and city.

"Treat others with dignity, regardless of how you may view their issue or point of view."

"Make decisions based on the law, and good planning, rather than on public sentiment or pressure."

"The shalt nots are.

Ignore the law

Have a closed mind to arguments or new ideas

Make up your mind before hearing all the available information

Represent a single point of view or base your vote on a single personal experience."

Comment:  This has happened repeatedly throughout this process. Most if not all those who have been part of this application have looked at this from the perspective of being LDS First.

"Use your position, or information given to you as a result of your position, to benefit yourself, friends, or family or the LDS Church."

Who sets the agenda and runs the appeal authority meetings?

"The chair is in charge of all appeal authority meetings if it is in a board format. The authority should have written procedures that are reviewed and a chair who is elected by members of the appeal authority once a year."

Comment: I have NEVER been part of a procedure of electing a chair which is required each and every year. Whoever the chair is has not been elected but appointed and that is not allowed. The chair MUST be elected by those sitting on the board.  This is not an appointed position! I have no idea who the chair person is and I sit on the board of adjustments.  I have been the chair person from time to time.  It seems as though the chair person who has not been elected is a person who shows up to the meeting and is willing to sit as the chair for that meeting. If there is a designated chair person, this person has been appointed and not elected and that is not how the law is written. Before the appeal hearing I would like to schedule an election by the current appeal board members.  By not electing an appeal board chair properly, I will use this in any defense I need to in court.

Comment: I have not received a copy of written procedures and I have not reviewed a copy of the written procedures as provided to me by the City of Lehi. I currently sit on the Board of Adjustments and severed on the Board of Adjustments for 4 years in the City of Alpine, UT.

"One of your procedures should deal with how a mee​ting is called. A petitioner should meet with the clerk or recorder, or the land use staff, and fill out an application form. The chair is then notified and he sets the date of the meeting and everyone is notified."

Comment: The chair sets the meeting, not the city recorder or attorney. The fact that I am receiving correspondence from Ryan Woods and Marilyn Banasky clearly informs me that he/she is setting the agenda of the meeting and not the chair.  Any correspondence I receive as it relates to the agenda of the meetings should be created by the chair person and may be sent to me through the city attorney. Not the other way around. The City Attorney and the City Recorder are not in charge, the Chair is in charge.

Comment:  This bears repeating:  The chair is the person who sets the date of the hearing, not the city recorder or the attorney. The date of the hearing should be set by appeal board chair and may be sent to me through the city recorder or the city attorney, not the other way around.

"The agenda is usually determined by the staff and the chair. It is the chair’s responsibility to make sure that the meeting is conducted in a fair, legal and efficient manner."

Comment:  Since we have no Chair, it is a little difficult for him to set the agenda.  It is the Chair's responsibility to make sure the meeting is conducted in a fair, legal and efficient manner.  This will be a little tough on a person who is newly elected, that evening and then is thrust into conducting a meeting in which he does not even know proper protocol for holding a meeting.  The new Chair cannot expected to run a fair, legal and efficient meeting when they have not been given even 10 minutes to learn their role and responsibility in this process. If I were to lose, I will make this a huge issue in my court appeal.  I will make sure the court knows that the City Attorney refused to allow a fair and legal to meeting to take place and that I was deprived due process, my constitutional and civil rights.

"Here is a brief list of materials that should be made available to you.

Copy of your municipality’s land use zoning ordinance and subdivision ordinance.

Copy of the UT State Code, sections Title 10, chapter 9a

Copy of the open meetings act, Title 52, chapter 04, U.C.A.

Copy of the municipal ethics requirements.

Established written procedures developed by the municipality."

Definitions

Conditional use: A conditional use is a land use that because of its unique characteristics or potential impact on the municipality, surrounding neighbors, or adjacent land uses, may not be compatible in some areas or may compatible only if certain conditions are required that mitigate or eliminate the detrimental impacts. In order for a conditional use to be considered, it must be listed as such in the applicable zone.

Street, collector: A Street which collects traffic from local streets and connects with minor or major traffic arteries.

Street local: A Street designed to provide vehicular access to abutting property and to discourage through traffic.

Street, minor arterial: A Street with signals at important intersections and stop signs on the side streets, and which collect and distributes traffic to and from collector streets.

Subdivision: The process and the result of dividing a parcel of RAW land into smaller buildable sites. Complete plans will eventually include streets, blocks, open space, public areas and other improvements. A subdivision may be established any time a new boundary line is drawn.

Trip generation: The total number of vehicle trips produced by a specific land use or activity. It is used to calculate traffic impact of a proposed use.

Other notes

"Participation in decision making by so many persons who may be personally affected by the decisions presents the need for safeguards to assure that these decisions are being made in the public interest, not the personal financial interests of board members."

"Persons making land use regulatory decisions have an obligation to act in the public interest.  Both constitutional and statutory provisions address the question of when a conflict exists between a decision maker’s personal interests and public obligations."

"Due process requires an impartial decision-maker."

"A fixed opinion that is not susceptible to change may well constitute impermissible bias, as will undisclosed ex parte communication or a close familial or business relationship with an applicant."

Comment:  Fixed opinion = LDS Church membership! Close familiar relationship = membership in the LDS church. Membership in the LDS church is a lifestyle.  The church encourages its members to live their lives based on the values they set forth (e.g. what underwear they should wear (can there be anything more personal than ones selection of underwear, if the church can dictate the type of underwear you wear, they certainly can dictate any number of other things which forms your lifestyle), what you should drink, eat, how you should dress, what you should and should not read, internet sites you should not visit, dictates on smoking, caffeine, pre-marital sex, if you are a BYU Student or have gone to BYU, the honor code, when you go to church, who you go to church with, home teaching, callings in the church etc. I seriously could go on and on, suffice it to say, being a member in the LDS church is a lifestyle choice ones chooses.)

"An impartial decision maker is required for quasi-judicial decisions."

Comment: Impossible for an LDS church member to review an LDS church application and be impartial. (e.g. The LDS church says that you must conform to the LDS church standards or risk your salvation status and that of your family.)

The following is extremely critical

"With quasi-judicial land use decisions the constitutional demand for impartiality extends beyond financial conflicts to include bias (an opinion on the case that is fixed and not susceptible to change), close or associational relationships, and undisclosed ex parte communications.

Providing that members of boards making quasi-judicial land use decisions shall not participate in or vote on any quasi-judicial matter in a manner that would violate affected persons’ constitutional rights to an impartial decision-maker. The statute provides that Impermissible conflicts include, but are not limited to, a member having a fixed opinion prior to hearing the matter that is not susceptible to change, undisclosed ex parte communications, a close familial, business, or other associational relationship with an affected party, or a financial interest in the outcome of the matter.

As a general rule, a member with a bias or conflict of interest makes that determination and recuses him or herself.  If the board making the decision is the governing board, the member generally requests that the entire board vote to approve the recusal.  For planning boards and boards of adjustment, the member may simply announce the recusal at the initiation of the matter."

Handbook for members of the State of Utah Boards and Commissions

Ethics act and conflicts of interest

This section provides information on ethics requirements and potential or actual conflicts of interest of members of boards.

Utah Code Annotated (UCA) Title 19.

Applicable law

By amendments in 1989 to the Utah Public Officers and Employees Act (Ethics Act), board members are now covered by it various provisions. The definition of Public Officer means all elected or appointed officers of the state who occupy policy making posts.

Conflicts of Interest

Discussion – Procedure

In the past, different approaches have been taken by various members of boards when they have had conflicts of interest.  These approaches have included:

Oral disclosure of the conflict before discussion and then participating in the discussion but not vote.

Oral disclosure of the conflict at the beginning of the discussion with no participation in discussion or the vote, or

Oral disclosure of the conflict and physically withdrawing from the meeting when an action is being discussed and voted upon.

What is a conflict of interest?

One question which often arises is what constitutes a potential conflict of interest. It is generally considered that a potential conflict of interest is ANY direct and immediate interest or relationship, including financial interest, with persons or businesses regulated by or directly affected by decisions of the board, or persons or organizations which may present request or issues before the board.

Types of interest to be considered as potential conflicts of interest include relationships or interest with persons, business enterprises, or non- profit, professional, charitable, RELIGIOUS, social, educational, recreational, environmental, public service or civic organizations.

Comment:  Types of interest to be considered as potential conflicts of interest include relationships or interest with persons, business enterprise (LDS church is also a corporation – the corporation who is overseeing this project and who as signed off on the special warranty deed is The Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints), charitable RELIEGIOUS, social, educational, environmental, public service or civic organizations.  I believe I can make the case the LDS church, BYU and all the various entities created by the LDS Church are a potential problem for any member of the LDS Church hearing matters of the LDS Church.

With which

You are connected as a member, employee, officer, owner, director, trusted, partner, advisor or consultant.

Comment:  MEMBER, OFFICER = appointed position within the church hierarchy (e.g., Bishop, Priesthood leader of any sort etc.)

In which

You have ANY continuing financial interest (tithing = salvation) as a creditor or through ownership of stocks, bonds, or other securities, ownership or real property or rights in the lands, or through a pension or retirement plan, shared income or OTHERWISE, or which you are indebted financially (Tithing).

Comment:  OTHERWISE.  I will be able to make this case as well.

Handbook for planning commissioners

"The appearance of fairness doctrine requires you to abstain from voting on a matter on which you have a material conflict of interest. (Personal or financial)"

Material conflict of interest

A conflict of interest is considered to be material if a reasonable disinterested person would take it into account in exercising judgement of making a decision. A material personal interest is a board members personal, professional or business interest or the personal, professional or business interest of individuals or groups with whom a board member is closed associated, that have, or appear to have, the capacity to influence the conduct of the staff member."

"Material personal interest may include:

Non-financial interest: those that could, or could reasonably be perceived to, adversely affect the impartiality of the person having the interest and includes;"

"Other interest that may include a tendency toward favor, bias or prejudice resulting from personal involvement with any other person or groups and situations in which financial or other personal considerations may compromise or may have the appearance of compromising a board members professional judgment."

Comment:  I can make a clear case that being a member of the LDS church is a clear cut violation of the ethics standard on so many levels. 

The city needs to live to the letter of code (law) on every aspect of the Lehi City code and not pick and choose which codes they will live to and which codes you will ignore. You don’t get to pick and choose which codes you will enforce and which codes you ignore. ADHERANCE TO ALL CODES IS REQUIRED, MANDATORY AND CRITICAL.  Ignoring provisions of local, state and federal codes is a violation of the law and is subject to a multitude of penalties.

Bill Conley

801 867 7227