Vial v. Provo City

THORNE, Associate Presiding Judge

(concurring in part and dissenting in part):

82 I respectfully dissent. I agree with the majority's determination that the rental of the basement was a legal nonconforming use as of 1983-84. I disagree, however, with the majority's determination that because the Board considered substantial evidence that readily supports a theory of abandonment that the Board necessarily concluded that the legal nonconforming use had been abandoned. I further disagree with the majority that the Board actually concluded that any legal nonconforming use of the basement apartment was abandoned.

T183 I agree with the majority that the Board considered and discussed evidence supporting a theory of abandonment, portions of which the Board noted in its written decision. However, the Board's consideration and discussion of abandonment evidence is not tantamount to a decision that any legal nonconforming use of the basement apartment was actually abandoned. On the contrary, the Board's decision does not provide abandonment as a basis for its denial of Vial's appeal.1 Instead, the Board's decision *955adopted the findings of fact reached by the staff as found in the staff report. The staff report contained evidence primarily pertaining to the legal nonconforming use of the property and requested the Board deny Vial's appeal based on the staffs conclusion that "[Vial]l has not provided evidence or established cireumstances for determining a nonconforming use of a One-Family Dwelling with an Accessory Apartment."

{34 Despite the substantial evidence on abandonment, I believe it is unwise to infer a finding of abandonment simply because evi-denee of such was taken and discussed while the decision purports to rely on a different basis for its denial of the appeal. Because the Board's decision did not expressly provide abandonment as a basis for its denial of Vial's appeal, I cannot agree with the majority that the Board found that any legal nonconforming use of the basement apartment had been abandoned.

135 Additionally, I disagree with the majority's determination that any reliance Vial may have had on the 1983-84 case file determination was simply not reasonable because she was a sophisticated purchaser who had knowledge about the controversy surrounding the nonconforming use of the apartment. I also disagree with the majority's determination that the legality of the basement apartment remained an open question at the time of the home purchase further rendered her reliance unreasonable. First, I disagree with the majority's characterization of Vial as a sophisticated purchaser of real estate because she was a law student. I am not inclined to label an individual, with no articu-lable real estate experience, purchasing a home for the first time as a sophisticated purchaser. Second, the "open question" analysis, as posed by the majority, relates to the fact that Vial's realtor requested zone verification prior to closing, thereby indicating that an open question existed regarding the basement apartment's legality. I disagree; the realtor's request is irrelevant to demonstrate that an open question existed to render Vial's reliance on the 1983-84 determination unreasonable. This conclusion disregards the evidence that demonstrates neither Vial nor her father, Richard Vial, knew prior to closing that the realtor had requested zone verification.2 Without evidence of Vial's knowledge of a pending zone verification determination, it is improper to conclude that Vial knew that the legality of the basement apartment was an open question. The majority also suggests that Vial's knowledge that using the basement as a rental would cause an upset with the neighbors, who might attempt to legally prevent such use, demonstrates that the apartment's legality was an open question. Vial's knowledge of the controversy surrounding the apartment is not the same as having knowledge that the legality of the apartment was an open question. As a result, without more, I respectful ly disagree that Vial's reliance was not reasonable.

. The Board's decision, in its entirety, is as follows:

The Board of Adjustment made a motion to deny [Vial's] appeal.
Steve Sabins, motioned to deny the appeal, and adopt the findings of fact presented by staff as well as the contributions of the applicant to the packet of information in the staff report. Mr. Sabins, stated that "[Viall did not have an adequate amount of information for the board to overturn the staff's decision," and that "long-term neighborhood residents also gave compelling testimony contrary to some of [Vial's] statements and information."
The motion was seconded by Leonard Mac-kay, and the voting was unanimous to deny [Vial's] appeal. [Vial] was informed that she had 30 days from the date of this meeting in *955which to appeal this decision to the district court.

. The zone verification letter was sent to Vial's realtor, John Wallace, not Vial or her father. Vial, upon being made aware of the zone verification determination by her realtor, sent a letter on May 3, 2006, to the Office of Community Development requesting appeal information and explaining,

We closed on the home on April 21, 2006. During the process of looking at the home, we discussed with the realtor the basement apartment. What we did not realize was the realtor, John Wallace, had requested of your department a Zone Verification Determination. Apparently, the Zone Verification Determination was issued on April 24th, some three (3) days after our purchase. Although I am not sure of when Mr. Wallace received it, we were made aware of it on the 26th of April....