July 20, 2015
Utah Court of Appeals
July 16, 2015
2015 UT App 177 (Click for text of opinion)
The Utah Court of Appeals emphasized that a property owner must establish that a use was “legally established” under previous ordinances before it can be considered for nonconforming use status.
The Fullers own a home which has a separate apartment in the basement. They state that the home has had the apartment since it was first built in the early 1960s. The property was annexed into Springville City in 1975, and the Fullers maintain that that the apartment was allowed under Utah County’s ordinances prior to 1975 (the county’s ordinances governed uses before the property was annexed).
The City’s Board of Adjustment concluded that the apartment had not been legally established under prior ordinances, because the lot was not large enough to allow such apartments. In other words, the apartment should not have been built, because it was not allowed under the ordinances in place at that time.
The Court of Appeals upheld the City’s decision, agreeing that the Fullers had not shown that the apartment was “legally established,” and was thus not eligible for nonconforming use status.
The Fullers petition included other arguments, including a takings claim, and an argument that the 1975 versions of both the Utah Code and the City’s ordinances should apply. However, the Court noted that those claims had not been submitted to the Board of Adjustment, and so were not preserved for review.