I have asked the City of Lehi to follow their Land Use Development Code, word for word, exactly as it is written, do you think they could do that, the answer is a resounding
Wednesday, June 29th, I went before the Board of Adjustments (3 LDS Church Members) and presented my appeals (3) before the board, surprisingly, they voted against me on all three of my appeals, in other words I lost.
I had requested that my appeals be heard on separate evenings and that I needed between 3-5 hours per appeal. I was told that all my appeals would be heard in the same evening and that evening I was told I would have one hour to present my appeal. In that hour, I was to present my appeal and then the City and the LDS Church would be given time in that hour to respond to my appeal. In essence I had around 30 minutes to present my appeal.
I had created an opening statement for my appeals but because of a lack of time, I did not have time to read my statement. Below you will find a copy of that statement. I did ask before the meeting on a number of occasions how much time I would have to present my appeal, I was NEVER told how much time I would have or how the evening would proceed.
Before I started my appeals I asked each of the three board members to publically announce their membership in the LDS Church. One indicated he was offended that I would ask him to publically state he was a member of the LDS Church, another said he lived in the city of Lehi and the third remained silent. This is a violation of State Law as you will read below.
Can you believe that when asked to publically state that they were members of the LDS Church that all three board members could not do so, unbelievable.
Appeal hearing video
Warning it is relatively long, part where they won't announce their membership in the LDS Church starts at 8 minute mark of the video.
You know what else they couldn't do? Follow local and state law and the Lehi Land Use Development Code. The members of the Board of Adjustments did not do their job. They did exactly what everyone else did for the LDS Church; pushed through a development that never should have seen the light of day. In other words, they continued the pattern of NOT following the Lehi Land Use Development Code word for word, exactly as it is written, for if they had, they would of upheld my appeals and sent this development back to the drawing board.
Here is my opening statement that I did not read due to lack of time.
Before I
begin I want to discuss the following:
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.
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 with which you are
connected as a MEMBER, employee, officer, owner, director, trusted, partner,
advisor or consultant.
The fairness doctrine REQUIRES you to
abstain from voting on a matter on which you have a material conflict of
interest.
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. (E.g. Membership in the LDS Church which the Board of Adjustment members would not publically announce)
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;
including membership in the LDS Church.
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.
Appeal authority handbook states the following:
An Appeal
Authority must know both know the law and possess the courage to follow it.
Have you
studied both the State and Local laws regarding land use ordinances etc.? Are
you familiar with both the state and local statues regarding ethics?
Do you have
the courage to follow the state and local laws or will your membership in the
LDS Church disqualify you from being impartial and unbiased? Are you a member of the LDS Church? Are you a
temple recommend holder?
Have you
read and studied the Lehi Land Use Development code, specifically chapters, 2,
8, 9, 11 12, 12-b, 28, 34, 37, 38 and 39? Do you know the code word for word, exactly as it is written? Are you willing to follow the law? If you don't know the code and aren't capable of following the law, then it is your duty and obligation to abstain from this appeal hearing.
Would any of you at this time choose to abstain from voting on any of the appeals I am presenting tonight?
Have you
read and studied the material I provided to the City regarding all three of my
appeals?
Remember……
“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.”
“The appeal
authority must determine whether the decision of the land use authority was a
correct interpretation and application of the law.”
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.
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.
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.
Ask
questions if you need to
Represent
the good of the community rather than the good of the few.
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
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.
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.
One of your
procedures should deal with how a meeting 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.
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.
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.
Do you have all the required materials mentioned above and have you studied that material?
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.
An impartial decision maker is required for quasi-judicial decisions. (The fact that the three Board of Adjustment members refused to acknowledge their membership in the LDS Church clearly demonstrates they were incapable of being impartial decision makers)
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.
·
Chapter 13 Appealing Land Use Decisions
·
What is the issue.?
·
·
Simply put, the issue is whether the interpretation of the
ordinance
·
that is being appealed was “correct,” or the ordinance was
·
otherwise appropriately applied. The appeals authority must
simply review the
·
plain language of the ordinance to determine what it means and
·
how it should be applied and support that conclusion by
substantial
·
evidence on the record. The
official that previously interpreted the ordinance had a reasonable basis for
coming to said conclusion, but the body hearing
·
the appeal comes to the same conclusion based on its
independent
·
review of all the information
available to it.
·
“The Appeal Authority’s decision MUST be based on the law as it
is written in the land use ordinance.”
·
"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?"
·
"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."
Section 28.060
Procedures for Establishment of Resort Community Zone. (Amended
07/28/09) A. General Plan Amendment.
D. Effect of Area Plan Approval.
If a proposed Area Plan is adopted by the City pursuant to Chapter 15 of
this Code, all permits, licenses and
development must comply with the adopted Area Plan. Additionally, developers and builders must
comply with the Lehi City General Plan, the Lehi City Development Code, and all
other codes and ordinances of the City
Section 34.010. Enforcement -
Procedures and Duties.
(Amended 02/06/08; 08/28/12) This Code may be enforced by the City by any
appropriate means authorized by State law and Lehi City ordinances including,
but not limited to, injunctive relief, fines, withholding of building permits,
imprisonment, and revocation of development approvals, permits and
licenses.
B. No
building permit shall be issued for the construction of any building or structure
located on a lot subdivided or sold in violation of the provisions of this Code.
Section 34.040.
Reconsideration/Revocation of Approvals, Permits and Licenses. An approved development application,
permit or license may be reconsidered and revoked by the Zoning Administrator,
the Development Review Committee, the Planning Commission, the Board of
Adjustment, or City Council in accordance with the procedures set forth in this
Section if it is determined that the application, decision, permit, or license
was based on materially inaccurate or incomplete information.
C. Required
Findings. The approving body may revoke
the development approval, permit or license upon making one or more of the
following findings:
1. That the
development permit was issued on the basis of erroneous or misleading
information or misrepresentation provided by the applicant.
2. That the
terms or conditions of approval of the permit relating to establishment or
operation of the use, building or structure have been violated or that other
laws or regulations of the City, County, State, Federal or Regional Agencies
applicable to the development have been violated.
The word Shall
Kim
Struthers from the Planning Department said the following at a planning
commission meeting where the conditional use permit for the Thanksgiving
Village LDS Stake Center was approved.
“big difference between the words
should and shall, I am sure you are all familiar with code
language, should is a discretionary, it
is a recommendation, shall means you
have to”
CONSTRUCTION AND
DEFINITIONS
C. Shall, May, Should. The word “shall” is
mandatory. The words
“may” and “should” are permissive.
USLegal.com defines the word ‘Shall’
has the following meanings:
- An imperative command; has a duty to or is required to.
·
The following are some case law interpreting the
word shall:
·
When used in statutes, contracts, or the like,
the word "shall" is imperative or mandatory.[Independent School Dist.
v. Independent School Dist., 170 N.W.2d 433, 440 (Minn. 1969)]
·
"In common, or ordinary parlance, and in
its ordinary signification, the term 'shall' is a word of command, and one
which has always, or which must be given a compulsory meaning; as denoting
obligation. It has a peremptory meaning, and it is imperative or mandatory. etc.
·
[People v. O'Rourke, 124 Cal. App. 752, 759
(Cal. App. 1932)]
