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! 4th
District and 10th 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 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."
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
I was browsing the Lehi City website and came across this language. 
