The petitioner appealed a determination of the zoning board concluding that the rental of her basement to tenants, in her single-family home, is an illegal use of the property. The petitioner argued that the use was a legal pre-existing nonconforming use. Although the City argued that the petitioner’s accessory apartment was illegally established in 1949, the court disagreed because there was evidence that in 1983-84 the City had recognized it as a legal nonconforming use. Nevertheless, the City ultimately prevailed because the Court concluded that the accessory apartment use was abandoned. According to the City Code, the use of the basement apartment as a rental is presumed to be abandoned if either it is discontinued for a period of six months, or where the property owner indicates in writing or by public statement an intent to abandon. Here, the Court found evidence in the record from neighbors that in 2001 the apartment had not been rented for six months. The Court concluded that although the petitioner attempted to prove otherwise (e.g., by showing evidence of efforts to rent the apartment), she did not meet her burden of proof.
Vial v. Provo City, 2009 WL 1231773 (Utah App. 5/7/2009).
The opinion can be accessed at: http://www.utcourts.gov/opinions/appopin/vial050709.pdf
Special thanks to Neil Lindberg, Esq. Chair of the APA Utah Legal Committee for sending this case to Law of the Land.
