Posted by: Patricia Salkin | June 29, 2017

UT Court of Appeals Finds Owner did not have Standing to Challenge Town Land Use Variance and the Vacation of a Cul-De-Sac

Plaintiff Richard Specht challenged a land use variance and the vacation of a cul-de-sac in Big Water, which the Town’s Board of Adjustment and Town Council granted in favor of Specht’s neighbors, Paul Hyde and Debbie Hyde. The Hydes applied to the Board for a variance from the rear yard setback requirement to reduce the steepness of their driveway and thus provide them with reasonable access to their property. Specht appealed the district court’s order denying his motion for summary judgment and granting the Hydes’ cross-motion for summary judgment. On appeal, Specht argued the variance was arbitrary, capricious, and illegal because the Board did not make findings as to each of the required conditions of a variance and did not have substantial evidence to support its decision to grant it. Specht also argued the cul-de-sac vacation was arbitrary, capricious, and illegal because the Council did not have good cause to support it and did not provide proper notice of its hearings.

The record indicated that during the Board’s meeting, the Hydes presented evidence that after purchasing their lot, a neighbor raised the cul-de-sac by four feet, resulted in a very steep declining grade to their lot, which limited access to their property. Accordingly, the Board’s finding that enforcing the setback requirements would create an unreasonable hardship and that the hardship arose from circumstances peculiar to the property was supported by substantial evidence. Additionally, the court found that the Hydes’ property was unique and its conditions prevented them from enjoying reasonable access and installing a septic system, unlike the other lots in the zoning district. As such, without a variance, the Hydes would have been deprived of these privileges.

The Hydes also stated in their variance application that they had no rear neighbors who could be affected by the variance and that the lot cannot be seen from the main road because it sat below the cul-de-sac. Moreover, the Hydes provided the Board with a letter from the health department, which stated the variance would not be a problem. Furthermore, to the extent that the setback requirements had an aesthetic purpose, granting the variance would not frustrate that purpose because the Hydes’ lot could not be seen from the main road. The court found this evidence was sufficient to support the Board’s finding. Finally, the court found granting the variance would improve health and safety because it would allow the Hydes to install a septic system.

Next, the court determined that because Specht did not demonstrate that he suffered special injury different in kind from the public in general, and his access to the cul-de-sac was not substantially impaired, he lacked standing to challenge the validity of the vacation. Here, Specht did not complain that the vacation would directly harm him; he instead contended that some vehicles would have a “harder time” turning around. Additionally, Specht had not suffered any injury related to the Town’s alleged failure to provide proper notice, as he attended and participated in both the Planning and Zoning meeting and the Council’s hearing.


Specht v Big Water Town, 2017 WL 1788368 (5/4/2017)

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