BEFORE THE APPEAL AUTHORITY BOUNTIFUL CITY, UTAH  In the Matter of:  APPEAL FROM DENIAL OF CONDITIONAL USE PERMIT RE: 1253 Northridge Drive Bountiful, Utah Larry Simper/Adam Kerr  FINDINGS, CONCLUSIONS AND ORDER  The undersigned. Appeal Authority for Bountiful City ("City")received evidence and heard testimony and argument in the above-captioned matter at the hearing on January 30, 2020 (the Hearing"). Mr. Larry Simper appeared as the agent of the asserted land owner Adam Kerr, appealing the City's denial of an application for a conditional use permit regarding real property located at 1253 Northridge Drive, Bountiful, Utah (the "Property"). Mr. Simper also represented, and is a member of, LGI Properties, Inc., which is the entity holding title to the Property. Mr. Simper, as the agent of Mr. Kerr and ofLGI Properties, Inc., is referred tol herein as the "Appellant."  The City was represented by Mr. Francisco Astorga, the Planning Director and Administrative Committee Chair. Mr. Clinton Drake, the City Attorney, was also present. Based on the evidence and arguments presented at the Hearing, including the Conditional Use Permit Application ("Application"), the Appeal and supporting materials, and the City's Staff  Report, the Appeal is hereby denied as follows:    FINDINGS AND CONCLUSIONS  (1) On May 28, 2019, the City received a complaint from a neighboring land owner  that the dwelling at the Property was being operated as an unpermitted duplex.  (2) The home ont the Property is ofa fairly typical rambler design, with al basement and  amain level.  (3) The Property is zoned Single-Family Residential, subzone R-3.  (4) On May 28, 2019, the City sent a certified letter to the Property owner, LGI  Properties, Inc., regarding the use oft the Property.  (5) On. June 17,2019, the City received an additional complaint regarding the Property  and informing the City that al unit at the Property had been rented out.  (6) Having received noi response toi its previous letter, on June 17, 4 2019 the City sent a second certified letter to the Property owner. Again receiving no response, on July 29, 2019 the City sent two additional letters (one certified, one regular mail) to the land owner inquiring as to  the use of the Property.  (7) On August 28, 2019, Mr. Simper visited the Planning Department at the City and discussed the possibility of obtaining a conditional use permit (CUP) to allow an Accessory Dwelling Unit (ADU) (commonly known as an "In-Law Apartment" or Mother-in-Law,  Apartment")i in the basement oft the Property.  (8) On September 10, 2019, the Appellant submitted an Application for an ADU CUP for the basement oft the Property. The Application included a floor plan for the basement.  2    (9) After reviewing Mr. Simper's Application, on September 23, 2019, the City's Administrative Committee tentatively approved the Application conditioned upon the  establishment of several conditions, including:  4. The ADU shall meet all the criteria in 14-14-124 ofthe City Land Use Ordinance. 6. Staff to verify that the square footage is accurate through a site inspection. (Per (10) On October 1, 2019, members ofthe City staffi inspected the Property. During the inspection, the City discovered that the basement floor plan that was submitted as part of the original Application was inaccurate. Among other things, the City learned that the bedroom/bonus room wall was not accurately depicted on the original plan submitted with the  Bountiful City Land Use Code $14-14-1240D)d).  Application.  (11) The City also observed that toi facilitate the home as two separate units, Mr. Simper had eliminated use of the stairway connecting the main level and basement level. The only entrance to the basement is now through a single door on the basement level from the side yard.  Mr. Simper also sO testified at the Hearing.  (12) On October 3, 2019, Mr. Simper submitted an updated floor plan for the basement in support ofthe Application. The new floor plan showed a slightly different alignment of walls for the bedroom and bonus room. The updated floor plan also showed altered (reduced) dimensions for several ofthe rooms (other than the bedroom and bonus rooms), the configurations ofwhich did not change on the updated floor plan. For example, the kitchen went from 12.5 feet by 21.5 feet to 11 feet by 20 feet; the dining area went from 10 feet by 15.5 feet to 8 feet by 15 feet; the master bath went from 8 feet by 15.5 feet to 6 feet by 15 feet; and the second bathroom  went from 10: feet by 8.5 feet to 8 feet by 8 feet.  3    (13) Additionally, on the updated floor plan, Mr. Simper re-designated the "second  bedroom" as "not occupied (locked/secured)" and certain other areas as "not occupied."  (14) Mr. Simper also represented in connection with the updated floor plan that the second bedroom would be deadlocked to prevent use. He also designated aj portion ofal laundry  area as "unfinished area."  (15) The footprint of the basement level (the dimensions of the exterior structure)  remained the same on the original floor plan as on the updated floor plan.  (16) The City staff concluded upon inspection of the Property that the footprint of the main level (the dimensions ofthe exterior structure excluding the garage) is nearly identical to the footprint ofthe basement level, with the exception of small cantilevers on the main floor for one or more bay windows. Accordingly, the square footage oft the mail level is essentially the same  as the square footage oft the basement level.  (17) The Applicant did not submit a separate floor plan for the main level, though the  plans submitted show the garagearea.  (18) No evidence was submitted at the Hearing, or otherwise, indicating that the footprint of the main level differs to any material degree from the footprint of the basement. To the contrary, the floor plans Mr. Simper provided establish that the footprint of the main level (excluding the garage) is virtually identical to the footprint of the basement. The main level has at two-car garage which the basement does not have. Mr. Astorga also sO testified.  (19) On October 31,2019, the City staff conducted a second inspection ofthe Property. (20) Onl November 26, 2019, Mr. Astorga called Mr. Simper toi inform him that the. ADU  CUP Application would be denied.  4    (21) On December 3, 2019, Mr. Astorga (the Administrative Committee Chair and Planning Director) sent Mr. Simper al letter formally denying the Application (the "Denial"). The  letter states inj part as follows:  Regarding conditional of approval no. 6, staff inspections revealed that the site is not in compliance with Bountiful City Land Use Code $ 14-14-[124](D)d), which states: An attached accessory dwelling unit shall be deemed unlawful and shall not be occupied unless all of the following criteria are met: (1) Shall not occupy more than forty percent (40%) of the total floor area square footage of the primary The proposal is not in compliance with the provision above as the footprint of the main level consisting of the principal unit, is essentially the same as the footprint of the lower level, consisting of the proposed ADU. The only exceptions are some small bay window/cantlevered areas that are located on the main level/principal dwelling unit that  dwelling structure.  don't add up to 60% of the total floor area square footage.  (22) The City's Denial further stated:  The bedroom labeled as "Not Occupied (Locked/Secured)" as well as the remaining portion of the laundry area labelled as Unfinished Area" cannot by counted as part oft the principal dwelling unit/,] and the CUP application for the ADU does not meet the current Ordinance, specifically S 14-14-[124]D)); therefore, the application is denied. (23) In the Appeal and Application, Mr. Adam Kerr executed a Property Owner's Affidavit representing that he owns the Property. At the Hearing, Mr. Simper testified to his belief that Mr. Kerr owns the Property because Mr. Kerr has entered into a Contract for Deed to purchase the Property from LGI Properties, Inc. Mr. Simper further testified that he is ai member ofLGI Properties, Inc., and that only LGI Properties, Inc., is on title recorded with Davis County. (24) Whether as the agent of Mr. Kerr or as a Member of LGI Properties, Inc.,  Mr. Simper is the agent of the owner oft the Property and the Appellant here.  (25) In order tol have the Appeal sustained, the "appellant has the burden of proving that  the land use authority erred." Utah Code. Ann. $ 10-9a-705.  5    (26) Accordingly, to prevail, Mr. Simper must establish that the Administrative  Committee's! Denial of the ADU CUP Application was in error.  (27) The only basis for the Denial is that the "no more than 40% requirement" was not  met.  (28) Asn noted, the applicable City ordinance provides that:  An attached accessory dwelling unit shall be deemed unlawful and shall not be 1. Shall not occupy more than forty percent (40%) of the total floor area square  occupied unless all oft the following criteria are met: footage of the primary dwelling structure,  Bountiful City Land Use Code $ 14-14-124(D)0).  (29) Bountiful City Code further defines "floor area" to be:  The sum oft the areas ofone or several floors ofal building, including areas used for human occupancy in basements, attics and penthouses, as measured: from the exterior face ofwalls. It does not include cellars, unenclosed porches, or attics not used for human occupancy, or any floor space in accessory buildings or in the principal building intended and designed for the parking or motor vehicles in order to meet the parking requirements of this Ordinance, or any such floor space intended and designed for accessory heating and ventilating equipment. It shall include the horizontal area at each floor level devoted to  stairwells and elevator shafts. Bountiful City Land Use Code $ 14-3-102(121).  (30) In connection with the Appeal, Appellant did not provide any calculation showing that the "no more than 40% requirement" was satisfied. The only calculation in the file was submitted in connection with the Application and erroneously included the garage in the total  square footage for the primary dwelling structure.  (31) Based on the footprint ofthei floor] plan which Appellant submitted, the approximate "total floor area square footage" of the home on the Property, as defined by Bountiful Code, is approximately y4,289 square feet. Thistotal floor area square footage is comprised of2,168 square  6    feet on the main level (excluding the garage and assuming no exclusion for heating equipment), and 2,121 square feet on the basement level (excluding the floor space intended for accessory  heating and ventilating equipment).  (32) The floor area of the basement level then, which is the proposed ADU, is  approximately 49% oft the total floor area square footage oft the entire structure.  (33) Even assuming that the "small bay window/cantilevered areas" that the City observed on the main level totaled 200 square feet (and Appellant submitted no evidence of the additional bay window/cantlevered areas upstairs), the ADU would still occupy approximately  47% ofthe total floor area.  (34) Appellant's attempt to exclude additional areas oft the basement from inclusion in the total floor area square footage analysis and his attempt to include the garage area in the total floor area of the dwelling are inconsistent with, and not permitted by, the applicable Bountiful ordinances. Specifically, Appellant's decision to label areas within the basement as "not occupied" and/or "unfinished area," SO as to argue that the proposed ADU does not occupy more than 40% of the total floor area square footage of the structure, does not remove such areas from  the square footage calculation.  (35) Similarly, Appellant's attempt to include the garage in the total floor area square  footage analysis is likewise not permitted by the applicable ordinance.  (36) In the Appeal, Appellant argues several points in an effort to attack the Denial.  None of them have merit.  7    (37) First, no facts or ordinance suggests that Planning Director erred by having the Administrative Committee assisti ini the review oft the. Application. Similarly, no facts suggest that Planning Director or Administrative Committee Chair denied the. Application "in secret."  (38) Bountiful City Code provides in part that a "final decision" is made on applications such as a CUP when "a vote is taken on the merits of the proposal by the Administrative Committee, Planning Commission, or City Council, or when an administrative decision is issued in written form by the Planning Director or other City official." Bountiful City Land Use Code  $14-1-113(A).  (39) By vote, the Administrative Committee conditionally approved the Application conditioned upon verification oft the several criteria, including that the no more than 40% square footage requirement was not met. Appellant was provided the opportunity to participate in the process and provide information for the City to rely on ini its investigation. Indeed, Appellant did participate, including submitting supplemental information to support his Application. Ifind no error in utilizing City staffi to assist in fact gathering to verify compliance with the criteria of the ordinances or in the Planning Director or Administrative Committee Chair issuing a written  Denial.  (40) Second, Appellant argues that the Denial is in error because Mr. Simper believes that the City failed to measure the proposed ADU. The argument has no merit. The City made two inspections ofthe Property and was provided with floorj plans, including measurements, oft the basement and the proposed ADU area. On inspection, City staff observed that, consistent with most ramblers, the main level is virtually identical in square footage and footprint to that of the  basement level.  8    (41) Next, Appellant argues that the Planning Commission erroneously allowed ai fence  to be built between the Property and an adjacent property to the West.  (42) The Appellant's boundary dispute with a neighbor did not form a part of, and is  irrelevant to, the Denial.  (43) Finally, without reference to any provision of either the state or federal constitutions, Appellant argues that the City's standards governing ADU's "may violate the constitutional rights of property owners." Without more than speculative argument, there is no  basis to find that the Denial was in error on constitutional grounds.  (44) The. Administrative Committee concluded that ADU CUP Application did not meet the requirement that the proposed ADU "Is/hall not occupy more than forty percent (40%) oft the  total floor area square footage oft the primary dwelling structure."  (45) When the floor area square footage is properly calculated, the proposed ADU  occupies more than 40% oft the total area square footage oft the home.  (46) The Administrative Committee did: not err in denying the. Application.  ORDER  After hearing and considering the Appellant's and the City's arguments, submissions, evidence and testimony ini the above-captioned matter, and consistent with the above findings and  conclusions, the Appeal is denied.  DATED this 4th day of] February, 2020.  BOUNTIFUL CITY APPEAL AUTHORITY SR.Bnne  Glenn R.) Bronson  9