Appeal Authority ofl Bountiful City  Decision of Administrative Law. Judge  In Re: Appeal of] Denial ofa a Sign Permit application located at 395 North 200 West, Community  Chiropractic. Background  Appellant Dan George DC and Dallas George DC - Community Chiropractic  The Appellant Dan George DC and Dallas George DC from Community Chiropractic ("Appellant"), filed an application for a sign permit ("Application"): on February 11, 2021. The "Scope of Work" in the Application was to update the "A)-ILLUMINATION: RETRO EXISTING T121 FLUORESCENT INTERNALLIGHTING TOLED", "B.). - COMMUNITY CHIROPRACTIC LOGO ANDLETTERING: REPLACE. ROUTED COPY BACKED WITH ACRYLIC WITH NEW UPDATE LOGO READING: COMMUNITY CHIROPRACTIC & WELLNESS GROUP", "C.)-E ELECTRONIC MESSAGE CENTERS: REPLACE (3) EXISTING OLD OBSOLETE DISPLAYS WITH (3)NEW DISPLAYS", and "D.) - PAINT DISPLAY: DARK SATIN BRONZE.". Application in Bountiful City - Administrative Law  Judge Packet ("Packet") page 10 of 63 emphasis in original.  After months of review and discussion between Appellant and Bountiful City ("City"), Appellant, through its contractor Madsen Walker at Visibility (sign contractor) sent an email demanding a decision. Email from Madsen Walker to. Francisco Astorga datedJune 8, 20212. The City reviewed the Application and by letter ("Denial Letter") dated. July 1, 2021 denied the Application. As stated ini the Denial Letter the existing sign did not meet the current Bountiful City Land Use Codes ("BCLUC"): relating to "maximum height," "total sign area," "maximum EMC area," and' "EMC's on a multiple face sign." Denial Letter in Packet pages 18- 200f63. As the sign did not meet the current BCLUC it was determined to be a noncomplying sign. Id. at page 20. Further, that as ai noncomplying sign, the City deemed items A-C in the scope of work alterations/changes" which is not permitted for a noncomplying sign. Denial Letter in Packet pages18-24. (The City deemed item D from the scope of work maintenance  and repair" which is permitted. Id. at 21.)  Findings  1. Thei required procedural steps were followed.  Appellant timely filed an appeal ("Appeal") of the denial July 15, 2021. Appeal in Packet pages 25-27. The Appeal specifically identifies reasons The Appeal Hearing was held on November 8, 2021, before the appointed Administrative Law. Judge ("ALJ"), Ryan W. Loose, as authorized by The Bountiful City Code ("BCC)2-8-102 & Resolution No. 2021-16. All parties were represented. Present at the Hearing were Blake W. Johnson, legal counsel, Dan G George DC, Dallas S. George DC, and  for the appeal as detailed in the Analysis section herein.  Community Chiropractic Sign Appeal  Decision Page 1 of9    representatives of the sign contractor for Appellant. Francisco Astorga, Planning Director, Clint Drake, City Attorney, and Darlene Baetz, Planning Appellant and City Stipulated tol Exhibits 1 & 2 and the Packet which were received and considered by the ALJ during the deliberation and decision of Appellant provided the Appeal, and the City provided Denial and the Appeal Staff Report which were considered by the ALJ but not received as exhibits. The Supplemental Appeal and Summary Argument were provided but not considered other than those arguments that were already addressed Appellant and City stipulated to ALJ taking pictures of the 4 sides of the sign on the day oft the hearing. The pictures are included as Exhibit 3 and The existing sign is a legal nonconforming use pursuant to UCA $ 10-9a-511 (44) and a noncomplying sign pursuant to BCLUC $ 14-19-107. (The history of how the sign was permitted is anecdotal and does not have clear documentation. However, the Parties agreed and stipulated to the sign as al legal noncomplying: gsign The Application proposed to "refurbish" as described below: (See application scope ofwork and testimony of Mr. Madsen Walker from Visibilty.) Current Fluorescent lighting change tol LED.  Department for City.  this Appeal.  ini the Appeal. (See Analysis section.)  considered.  2.  during the Hearing.)  3.  "Replace routed copy backed with acrylic" with routed out copy with 1/2" (T) Clear push-thru acrylic copy. (Mr. Madsen explained that this was a Replace 3 old obsoleted displays with 31 new displays. (Mr. Madsentestified that the new displays are different technology and components.)  different copy.)  4. The Application proposes design changes to the lettering on the side without thei reader boards. Specifically the location of "Community" is shifted from over chiropractic from the "HIRO"t to "ACTIC" and &Wellness Group" below chiropractic is centered.  Questions Presented  There are two questions before the ALJ:  1. 2.  May the ALJ consider the Supplemental Appeal and the Summary Argument as Do items A-C on the scope of work constitute alterationsychanges or are they "normal maintenance and repair"? Alterationsychanges VS maintenance and  part ofthe Appeal? ("Consideration oft the Appeal")  repair")  Community Chiropractic Sign Appeal  Decision Page 20 of9    Applicable Law Consideration of Appeal.  The State ofUtah requires municipalities to establish an appeal authority tol hear and decide, among other issues, "appeals from land use decisions applying land use ordinances." UCA $10-9a-701 (1)(b)(ii). Bountiful City has elected to appoint an Administrative Law. Judge to hear and decide appeals that are provided for in the Bountiful City Code including land use  appeals. BCLUC $$2-8-101, 14-2-108.  Appeals of a land use authority's decision must be made within fourteen calendar days and "Injo other appeals may be made to the. Appeal Authority. BCLUC $ 14-2-10A. Further, in addition to other requirements, the appeal must "specifically alleged that there is an error in an order, requirement, decision or determination by the Land Use Authority." BCLUC, $14-2-108  B.  In Bountiful the scope ofreviewi is that the "Appeal Authority shall hold a de novo hearing." BCLUCSI 14-2-108 D. In such case the appeal authority determine[s] the correctness ofthe land use authority'si interpretation and application oft the plain meaning of the land use regulations" and "interpret and apply al land use regulation to favor a land use application unless the land use: regulation plainly restricts the land use application." UCA S 10-9a-707(4).  Alerations/changes VS maintenance and repair.  Utah statute: recognizes noncomplying structures and nonconforming uses. UCA $10-9a-  103(43) & (44). Further, the property owner may continue ai noncontorming use or noncomplying structure. UCA S 10-9a-511 (1)(a). Utah Code allows the extension ofa nonconforming use through the same building as long as there is no structural alteration but it does not address the structural alterations in regards to noncomplying structures. UCA S 10-9a- 511(1)(b). The City recognizes the principle of a nonconforming structure for signs as  "noncomplying signs". BCLUC S 14-19-107.  The City regulates noncomplying signs strictly and has a stated goal of"eventual elimination". BCLUCS S 14-19-107A. The City's stated "goal is achieved by strictly construing limits on change, expansion, alteration, abandonment, and restoration." Id. Finally, Te/xcluding normal maintenance and repair, ai noncomplying sign shall not be moved, altered, or enlarged  unless it is brought into compliance with this Chapter." . Id.  There are two exceptions to these regulations for "1. A face change in a noncomplying sign that does not encroach onto aj public right-of-way or easement, and that is not deemed a public safety hazard by the Planning Director or City Engineer. 2.. A copy change in a noncomplying permanent sign which was originally approved by the City with a changeable copy feature." Id. BCLUC define a: face of a sign as "the area of a sign on which the copy is  placed." BCLUCS 14-3-102110.  An alteration of a sign is defined as "[c]hanging or rearranging any structural part or design ofa sign, whether by extending on a side, by increasing in area or height, ori ini moving from one location or position to another, including sign face, enclosure, lighting, coloring, copy  Community Chiropractic Sign Appeal  Decision Page 3 of9    (except on reader board or changeable copy signs), or graphics." BCLUCS14-3-102. Normal  maintenance and repair is not specifically defined. Finally. BCLUC S 14-19-119(L) requires that:  L.  Every. sign. shall be maintained as originally approved in its sign permit. This applies to all components of the. sign including the sign copy. Except:  1. 2  Portions ofchangeable copy on approved. signs.  Changes ofo copy area only on legally conforming signs, All non- complying signs, and any change to cabinet, pole, structure, or any other  sign element requires a sign permit.  Analysis  Pursuant to Utah Statute, Bountiful City has established an appeal authority and process for appeals which limits the: review of the appeal officer to those issues which are timely appealed. BCLUC, $ 14-2-108. Therefore the only reasons ("reasons" is the term. Appellant identified the issues in the. Appeal), considered on appeal are those specifically enumerated ini the Appeal. Ifai reason stated ini the Appeal was also addressed in the Supplemental Appeal and  Summary Argument, then it will also be addressed herein.  The following in italics are the Appellant's reasons given in the Appeal followed by  analysis.  Failure of fthe cify to allow us to repair and maintain our sign  Cityordinances do not state that as specific brand or type oflight bulbs or computer sofiware must be used when maintaining signage. A change fromj florescent to. LED bulbs -is ini line with state objectives to reduce power consumption. This reason is not al basis for an appeal as it does not alleged an error: ini the decision by the land use authority. As a de-novo review, the difference in fluorescent and LED lighting and in  reader boards constitutes a change in components. is in line with state objectives to reduce power consumption.  Iti is irrelevant and cannot be considered whether or not a change from florescent to LED The city is applying current ordinances that were not in afect when our sign permit We should be held to the sign ordinances when the sign was built under the The alleged error is that the City is applying current ordinances not those at the time that the sign was built. As1 neither party could show what the applicable ordinances were at the time the sign was built, the parties stipulated that the sign was an existing noncomplying structure under state law and a noncomplying sign under BCLUC. As such the only evaluation of what was  was issued and built grandfather clause  permitted is the sign as it existed at the time of the Application.  Community Chiropractic Sign Appeal  Decision Page 40 of9    The City'scontention: ist that the BCLUC compels them to assure that the signi isi maintained asi it was when it was approved including the same components and copy. BCLUCSI 14-19-119L. Therefore, the City did not err in denying the permit as the ordinance requires the sign to maintain  the same components and copy.  Further, as this is a de-novo review, the evidence (as detailed in the Findings section) is that the components and copy would change, thus rendering the sign out of compliance with how ity was approved and the stipulation as to the requirements of the ordinances at the time of approval  as evidenced' by the current sign itself.  Due to the cities demand (holding our building permit ransomed), in 2007 we compromised. and built one. sign 200sqfs sign on the corner, instead oftwo 100sgfoot 200 foot sign was granted and variance approved on our building permit and site This reason is not al basis for an appeal as it does not alleged an error: in the decision by the land use authority. As a de-novo review, the Appellant and City stipulated to the current sign being approved and legal without agreeing on the history of how it was approved. The original approval is not under review and has no relevance to whether the Application should be approved  sign S one on 400 North and the other 100ffs sign on 200 West  plan  or denied.  We have a legal nonconforming sign the repairs will not increase any current  nonconformity  We have a right to repair and maintain our sign  The argument that the Appellant has the right to repair and maintain its sign corresponds with the third argument in the Summary Argument and the arguments in the Summary Arguments ini that BCLUC allows certain updates as part of sign maintenance. Further, Appellant argues that the BCLUC has internal conflicts, is inconsistent, and can be read to have accomplish the City's goals and tol have already been approved when the sign was acknowledged as al legal noncomplying  sign.  During the Hearing, the Appellant's strongest point regarding the internal conflicts, inconsistencies and the different readings of the BCLUC in regards to noncomplying signs is that while the goal of"eventual elimination" ofnoncomplying signs through "strictly construing limits on change, expansion, alteration, abandonment, and restoration" this excludes maintenance and repair and further there is an exception for a "face change" that does not encroach or create a hazard. Appellant argues that eveni ifthe Application is deemed not to be maintenance and repair, the exception for face change would allow all oft the proposed scope ofv work on1 the Application. As stated herein, Utah law requires the appeal authority toi interpret the land use regulation in favor of the application unless the regulation clearly restricts the application. UCA S 10-9a- 707(4). BCLUC defines the face of a sign as the area where copy is placed not the copy itself. While this is a close issue, even construing thei interpretation ofthel BCLUC in: favor oft the Application, the definition of the face of a sign combined with BCLUC definitions of sign  Community Chiropractic Sign Appeal  Decision Page 50 of9    alteration and to construe the requirements strictly with the goal of eliminating the signs supports a reading of the BCLUC that the area, meaning here materials, where the copy is place can be This understanding of the BCLUC would not allow items A or C: from the Application's scope ofwork, but could allow item B as to the materials used for the sign but not for any changes int the design ofthel logo and lettering. As detailed ini the findings, the Application proposes design  changed but not the copy or components itself.  changes to the lettering on the sign.  Request a variance to be consideredC-H  200 West and 400 North are main arterial streets and for Bountiful, Utah and This reason is not al basis for an appeal as it does not alleged an error: in the decision by the land use authority. As a de-novo review, the Appellant did not make this argument during the  should be Zoned C-Hwith relation to sign ordinances  hearing and gave no evidence to support it.  Main street to. 500 West (highway 89) on 400. North should be considered a C-Hzone This reason is not al basis for an appeal as it does not alleged an error in the decision by the land use authority. As a de-novo review, the Appellant did not make this argument during the  with relation to. sign ordinances  hearing and gave no evidence to support it.  City planners followed a new interpretation of the ordinances when the request for maintenance was submitted. After meeting on 5/12/2021 it was verbally agreed that This reason is not al basis for an appeal as it does not alleged an errori ini the decision by the land use authority. As a de-novo review, the Appellant did not make this argument during the  all the repairs would not increase the degreofmoncomformi.  hearing and gave no evidence to support it.  City_failed to respond to our sign permit within a timely manner multiple times. The most recent being, three weeks afier our letter stating we are. movingforwardi with the praject hecause WR hand not received a response for our initial request.  Discrimination  Asan alleged error or under a de-novo review, failure to respond timely wasi not argued in the Hearing and was not raised or preserved when all objections were requested. Discrimination wasi raised and argued during the Hearing. However, under an error ord demovorview.moeidence was provided showing that similarly situated sign owners were being treated better than the  Appellant.  Compensationfrom: the Cityfor Negligence, Discrimination and Loss Revenue The Cityfailedi toj arlyepplyclyordnunes and violated our constitutional rights Including but not limited to our 19,5 5th and 14h amendment rights  Community Chiropractic Sign Appeal  Decision Page 6of9    Due process "Rip Cord effect"  Dor not respond in a "timely manner" over 5 % months to respond  As an alleged error or under a de-novo review, other than discrimination, which was addressed in the reason above, the Appellant did not argue any of these reasons, nor did the  Appellant provide evidence oft the reasons during the hearing.  Petition the city to allow us to remove the "box" to properly sandblast and paint the This allows us to limit the potential traffic issues that could arise from repairing This will limit the environmental impact ofs sandblasting and painting the sign on This reason is not al basis for an appeal asi it does not alleged an error ini the decision by the land use authority. As a de-novo review, the Appellant did not make this argument during the  sign  the sign on site site  hearing and gave no evidence to support it.  Violated our Constitutional rights  As an alleged error or under a de-novo review, other than discrimination, which was addressed in thei reason above, the. Appellant did not argue any ofthese reasons, nor did the. Appellant provide evidence oft the reasons during the hearing.  Violated Utah State Law  This reason is one ofthe main arguments made by the Appellant and is well addressed in both the Supplemental Appeal and the Summary Argument. There are two arguments made by the Appellant. First, that BCLUC conflicts with State law in that the Bountiful definition of alteration for signs is more restrictive than State statute. Second, that BCLUC is discriminatory  and confiscatory in conflict with case law.  As to the conflict in definition of alteration, the Appellant points out that the Utah Code specifically states that a' "nonconforming usei may be extended through the same building, provided no structural alteration of the building...." UCA $ 10-9a-511. The Appellant applies this statute tot the sign stating that as long as the structure of the sign is not changed, then the Application should be approved, as the City's definition ofa alteration of a sign is much: more: restrictive in that itg goes beyond structural changes to changes in the copy, lighting and other features.  At first glance, the Appellant argument makes sense, however, it does not withstand scrutiny. The statute allows the extension of a nonconforming use if no structural alteration is being made, but purposefully leaves out ar noncomplyingsnuclure which is address in the previous subsection of the Statute. In this case, there is no argument that the use should be expanded to other parts of the structure, as the structure's entire use is as a sign. Therefore the language  Community Chiropractic: Sign Appeal  Decision Page7of9    allowing an extension to the use in the same building ift there is no structural alteration does not  apply to this Application for a noncomplying structure, the sign.  The Second conflict the Appellant raised is that Utah law prohibits Discriminatory" and "Confiscatory" enforcement of city ordinances. As addressed herein, Appellant failed to provide any evidence of discrimination during the hearing each time Appellant raised the issue. Without any evidence under both areview for error and de-novo, the Appellant'sclaim cannot be sustained. While Appellant's state in the Summary Argument that "documents testimony show that Bountiful City's denial of the building permit is motivated in part by discrimination against Dr. George and Community Chiropractic," the Appellant could not make that connection during the hearing. The Appellant did not present testimony and the only document was Exhibit 2, which was a chart of Animated Sign Comparison. No context for Exhibit 2 was] provided and though Mr. George wasi mentioned, no discriminatory or hostile remarks are found on the document. The Appellant also claims in both the Supplemental Appeal and Summary Argument that the City' s denial conflicts with Utah law as "confiscatory" under the Gibbons & Reedvl North Salt Lake analysis. This argument also fails scrutiny as it is distinguished by the facts that the change in zoning by North Salt Lake deprived the landowners of their use without allowing them nonconforming legal status. In this case, the City is not depriving the Appellant of the use the property for a sign; rather it is whether the proposed changes of the sign can be made without having to bring the sign in compliance with the current code requirements. Either way, the  Appellant is still entitled to the use ofthe property for a sign.  Loss ofReverue  This reason is not a basis for an appeal as it does not alleged an errori in the decision by the land use authority. As a de-novo review, the Appellant did not make this argument during the  hearing and gave no evidence to support it.  The size, shape, aface content, and 50/50. LED toj fixed message will not change with The planned maintenance and repairs will allow our sign to become more This reason is not al basis for an appeal asi it does not alleged an errori int the decision by the land use authority. As a de-novo review, the Appellant did not make this argument during the  our current repairs  compliant with current ordinances  hearing and gave no evidence to support it.  The maintenance and repairs are to beatify the city  Community Chiropractic offers) free advertising. for local HS palys/events, city and This reason isi not al basis for an appeal as it does not alleged an error in the decision by the land use authority. As a de-novo review, the Appellant did not make this argument during the  state events and local charities  hearing and gave no evidence to support it. Community Chiropractic Sign Appeal  Community Chiropractic has been a staple of Bountifulfor. 29 years  Decision Page 80 of9    Including a Time/Temperature sign for 29 years The sign is the main. source ofmarketing for our business  This reason is not al basis for an appeal as it does not alleged an error in the decision by the land use authority. As a de-novo review, the Appellant did not make this argument during the  hearing and gave no evidence to support it.  Conclusions ofLaw  The. ALJ may not consider the Supplemental Appeal and the Summary Argument as the basis of the appeal except to the extent that they expand on an issue raised in the Appeal.  Decision  Uphold the Bountiful City Planning Department' s denial oft the Community Chiropractic  Sign Permit application located at 395 North 200 West.  May 16,2022 W. Loose, ALJ Ez  Community Chiropractic Sign Appeal  Decision Page 9 of9        EX1  PERMIT APPLICATION BOUNTIFUL CITY PLANNING DEPARTMENT  770950  SIGN  DATE OF APPLICATION RECEIPT NO. TYPE OFI IMPROVEMENT NEW X  VALUE OF PROJECT  /20,000  DESCRIPTIONPROPOSED USE  REMODEL 0  MOVE  PyLoNSIGN  REPAIR o  DEMOLISH -  BUILDING ADDRESS 335 W. 500 So.  OWNER OF PROPERTY DR. DAN GEORGE ADDRESS 335 W. 5008.  PHONE  CELL HOME  WORK 295-0007 PHONE 508-7740  GENERAL CONTRACTOR RockyM. SIGNE,SERVICE  ADDRESS 8817 S. REDWOOD Rp. W-JERPAN/UTOE STATE LICENSE NO 5254396-555/  ARCHITECTENGINEER ADDRESS ELECTRICAL CONTRACTOR ADDRESS SITE PLANS COPY AREA SCALE)  PHONE STATE LICENSE NO. PHONE STATE LICENSE NO,, CITYHALL PHONE (801)298-6190 FAX (801)298-6033  SUBMIT WITH APPLICATION: 2 SETSOF BUILDINGI FACADE/SIGN STRUCTURE ENGINEERING: SPECIFICATIONS MEC CHECK (IF NECESSARY) APPLICANT'S NAME DALE HPwKINS COMMENTS:  BOUNTIFUL CITY PLANNING DEPARTMENT 790 SOUTH 100E EAST BOUNTIFUL, UTAH 84010  (ALL DRAWINGS MUSTI INCLUDE DIMENSIONS AND/ORI BETO  APPICAMTSSIGNATVAE -    PAD  ZONE CG  DATE 05-1705  APPROVAL C        Bumiful,Utah 184010 (801)298-6190,  CUSIOMERSORDERNO. NAME ADDRESS  DATE 5-18-05  ELECTROVISION SIGNS 88175. RENWCD 04) WASRDN JDY412 SOLDBY CASH C.O.D. CHARGE ONACCT. MRB: PAIDOUT  OVAN.  DESCRIPTION SIGN PERMT  PRICE 7095 59 $  AMOUNT  Tax Total 769 so VIEDBY TZ  ALLCLAIMSA ANDE RETURNED GOOps MuS 259254 REC'DBY 5R523 REDIFORM.  CRZdle  carbonless        INSPECTION NOTICE  8/80  Permit# #.  Date. 10/30/05 Time 00 Name. lxtwht Address 395 Lot# Type Violation D Comments  ho. 200cLat For Skgw Required D Re-Inspection Required! D  Subd'n  Other D  E  Appenrs fo beck  Inspector. pap  BOUNTIFUL CITY 790 South 100 East - Phone 298-6125        200 WESTSTREET  F        D        GX2  Animated Sign Comparison  Store Walgreens 00 BI Plaza 02 Duerden's 03 Marberger's05 Kay Riley 05 George 06 Morris Travel 575N5001 W  Zone CH CH CG CG CH CG  Area 125/160* 160/160* /60 NA/160 94/94* 192/160*  Height 25/30 28/30 15/15 N/A 18/30 17/15  LED% <50% <50% >50% <50% <50% <50%  Animation Constant Constant Constant Constant Constant Constant  Do we. really want the ordinance limiting animation?  Take Dan George out of the equation, and consider the ordinance on its merits.  State oft the art Wave of the future Attracting business Protest from businesses Never told anyone about restriction Skateboard ramp  We could keep the ordinance as iti is, repealed it completely, or permit only monochromatic Ify your really want the ordinance, we will be glad to enforce it. Ijust want to make sure: it is what  (single color on black background)  you really want.        ALS - 1/g/zoz1  Ex3        AVS N/glzozl  -        ALS u/shzozl  s        ALS ufglzal