Residents upset after Millcreek approves building ‘in error’

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MILLCREEK, Utah (ABC4 News) – What would you do if you bought a house for views of the Wasatch mountains or sunsets along the Oquirrh mountains, all to have it blocked by a new structure? 

That’s what some residents say is happening to them in the area of 3300 South and 1500 East. 

Scott Brown says he bought his home in Millcreek for one reason and one reason only. 

“I love the house, when I walked out on the deck and I saw the unobstructed view of Mount Olympus, I looked at my realtor and said, this is it,” he said.

That view is now obstructed.

“I mean my heart sinks. I mean that was something, that view is something I enjoyed every morning and every evening, and now to walk out here and see that, especially when that was one of the main reasons I bought this house is pretty devastating honestly,” said Brown.

Brown told ABC4 News’, Jason Nguyen, the structure went up over Labor Day weekend without any notice. 

He added, “I asked the city that question, who is ultimately responsible? And the city said they were in error.”

We stopped by Millcreek City Hall for some answers but were referred back to a Facebook post on the Millcreek Residents Facebook Page from Millcreek’s Planning Director Francis Lilly.

This is the message in full:

Francis Xavier Lilly Good afternoon. I am Millcreek’s Planning Director, and I thought I’d reply to this post to clarify a few things.

I met with Scott and with other neighbors about this building. I’ll say now what I told him them: we did make an error in approving that permit. The error was made on the basis of plans that weren’t entirely accurate. The issue here is complicated, but I’ll try to summarize – the property this building sits on is actually in two zones (commercial and multifamily). Neither we nor the property owner were aware of the two-zone issue, and we are working to fix this problem in the future by clarifying both our zoning maps and the application process to require applicants to go through some additional steps to verify zoning before they even present to us. But we did approve the plans in error, and we are very sorry about that. It was a surprise to everyone in the room, that this neighborhood was actually immediately adjacent to commercial and multifamily zoning, on which this new building sits, and that this zoning allows for taller buildings along 3300 South. 

When we were notified about the building, we re-examined the permit, and discovered deficiencies in the applicant’s submittal – essentially, information was missing. I have no reason to believe that the applicant mislead us, only that they erred in preparing that information and we erred on the basis of their incomplete plan. Nonetheless, we issued a stop-work order, and and we talked with the property owner as well as our attorney. In the end, we hired a land use attorney to look at the facts of the situation, and we were advised by him that requiring the building to be torn down or rebuilt would likely not be upheld in a court if the owner were to sue the city. I’ll also express here what I told the residents in a meeting a couple weeks ago: I did everything I could do in my limited power to get that building moved or changed significantly, but in the end we had to lift the stop-work order and let the project proceed as it was presented in the plans because we are legally required to.

In the end, we communicated our expectation to the builder that they work with us, and the neighbors, on strategies to help make that building less onerous, to include façade treatments or landscaping. They agreed, and at this point I’m just waiting to hear back from neighboring residents. Again – I can’t stress enough how sorry we are for this error, and we are using this situation as a learning experience as a staff. Should you have any questions, please email me at flilly@millcreek.us or call at 801-214-2752.

Brown said, “It makes me feel like somebody dropped the ball.”

The property owned by Dewey’s Bail Bonds lies on a commercial and mixed-use property creating a unique problem. 

The owners said they were inspected several times and were approved by the city to get the building done. 

The structure they say cost over $200,000 and because of the temporary halt, they incurred $15,000 in losses.

In a letter provided to us by residents, the Millcreek City Attorney John Berm states officials “legal doctrine of ”zoning estoppel” would prohibit the City from stopping the work.”

The letter in its entirety can be seen below. 

Your letter to Messrs. Lilly and Gehring was referred to me for a response. I will provide a narrative of the background and summarize our legal analysis and approach to this situation.  

On or about September 10, 2019, I was informed that a building located at 1545 East 3300 South was being constructed in violation of an approved building permit and land use approval. I discussed this with various members of City staff and it was determined that Stop Work Order be issued until the matter could be “sorted out.” On September 12, 2019, the Stop Work Order was issued and it is my understating that the contractor immediate stopped work on the building.  

Upon review it was discovered that the parcel on which the building was being constructed is located in two different zones- RM for approximately the back 75 feet and C-2 for the front 175 feet (the entire parcel being about 250 feet in depth). For informational purposed the building satisfies the zoning requirement in the C-2 zone but does not satisfies the zoning requirement in the MD zone. The building exceeds the height limitation and fails the backyard setback requirements in the MD zone. Even though unusual the City has an ordinance dealing with such situations. Specifically 19.92.060 provides for a special exception in such circumstances and provides in part that, “[w]here a zone boundary line divides a lot in single ownership at the time of the passage of the ordinance codified in this title, the land use hearing officer may permit a use authorized on either portion of such lot to extend not more than fifty feet into the other portion of the lot.”  

We requested that the owner make an application for an exemption under 19.92.060. The owner objected and asserted that the City issued the building permit, that in good faith he relied on the issuance, and expended more than $250,000 in reliance on the City’s issuance of the building permit. Over the next week we had numerous discussions and posturing with the owner and his counsel.

 We retained independent counsel to evaluate the City’s position and the likelihood of success in court. On September 20, 2019, the decisions makers including independent counsel met and examined the facts and conclude that the City issued the building permit in errors and that the legal doctrine of ”zoning estoppel” would prohibit the City from stopping the work. We then met with the owner’s counsel and it was concluded that the Stop Work Order be lifted and the owner agreed to ameliorate the impact of his building on the neighboring landowners which may involve trees, landscaping, or paint. Messrs. Lilly and Gehring were then directed to contact the neighboring landowners advising them of the situation and solicit their input on how to ameliorate the impacts of the building. 

If you have any questions or concerns about the process or suggestions on how to ameliorate the impacts of the building please feel free to contact me.

Very truly yours,

MILLCREEK

John N. Brems, City Attorney

cc: Mayor Silvestrini

John Geilmann

Francis Lilly

Blaine Gehring 

The owners of Dewey’s Bail Bonds tell ABC4 News Jason Nguyen they plan on having the building done by Monday, October 14th. 

Residents in the area say they are looking at legal remedies with the city because of the error and the decrease in property values. 

Lilly tells ABC4 News he hopes to work all of this out with residents so it doesn’t have to go that far. 

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