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Advisory Opinion: Escalante City’s Project Approval of Site Plan for Family Dollar “Unlawful”

The Family Dollar building in Escalante surrounded by snow
Richard B. Plehn, Attorney for the State of Utah’s Office of the Property Rights Ombudsman, issued an advisory opinion on January 25, 2024, stating that Escalante City’s approval of the Family Dollar Store at Highway 12 and 300 East was “unlawful, and must be reconsidered because it did not comply in substance with the terms and standards of applicable land use regulations.” Insider

ESCALANTE – It’s been almost a year since the March 21, 2023, meeting in Escalante City Council chambers, where council members heard concerns from over a dozen city residents—and before a standing-room-only crowd—related to the citing of a Family Dollar/Dollar Tree store within the city limits on Highway 12 and 300 East.

Among those speaking that evening was Caitie Clery, who voiced concerns about the split zoning of the parcel; the frontage area being zoned as Residential-Commercial and the rear zoned as Single-Family Residential. “If any of these properties were to be developed commercially,” Clery asked, “wouldn’t the property owner need to petition to be rezoned within the Residential-Commercial zone?

According to a January 25, 2024, advisory opinion from Richard B. Plehn, Utah’s Property Rights Ombudsman, Ms. Clery’s assessment of the need to re-zone was correct.

“The City’s project approval of the commercial site plan was unlawful because it proposed a prohibited commercial use within the boundaries of a residential district,” Mr. Plehn states in the summary of his opinion. “Proposed land uses must conform to zoning district boundaries as depicted in the City’s zoning map. The subject property is a ‘split-zoned’ parcel that straddles the boundaries of both commercial and residential districts, and the proposed site plan utilized the residential-zoned portion of the parcel for a commercial use.”

The request for an advisory opinion on the matter was filed with Office of the Property Rights Ombudsman by Preston Winkelman, an Escalante resident, local building contractor, and direct neighbor to the Family Dollar store project. Among the concerns Winkelman had voiced in council chambers during the March 21 meeting was about the directing of commercial traffic down the residential street that he lives on, as the Utah Department of Transportation had denied property owners access to the store site from state highway 12, citing safety reasons.

Despite residents’ questions and stated concerns, the Escalante City Council approved the Family Dollar Store construction application that same evening, March 21. Following the approval, Mr. Winkelman and other filed appeals to the city’s Board of Adjustments . The Board denied the appeals, at which point Winkleman filed his request for an advisory opinion with the Office of Property Rights Ombudsmans on April 23, 2023.

In his request, Winkelman posed a question: “Did the City of Escalante Planning and Zoning commission and the Escalante City Council comply with all the applicable mandatory provisions of its ordinances in the review and approval of the application submitted by [the applicant] Red Root, LLC?”

While Plehn, an attorney for the Ombudsman’s office, concluded that the city’s review of the Municipal Project Approval Form was procedurally proper according to the code requirements applicable to the application, he concluded that city’s approval of the project was “unlawful and must be reconsidered because it did not comply in substance with the terms and standards of applicable land use regulations.”

“The site plan for the proposed commercial development appears to utilize the entirety of the parcel, including the portion zoned as residential,” says the opinion.

Plehn cited MLUDMA, Utah’s Municipal Land Use, Development and Management Act, which serves as the enabling act for local zoning, and which provides that, “only a legislative body may amend, by legislative process, the shape, boundaries, area or general uses of any zoning district.”

In a reply to Winkelman’s advisory opinion request, Mayor Melani Torgersen, on behalf of Escalante City, submitted a letter to the Office of the Property Rights Ombudsman on May 18, 2023. Plehn’s advisory opinion states that the mayor’s letter, “the City alleges that it has treated every applicant the same when one parcel has two different zones—in that the City’s Planning and Zoning has allowed the applicant to make their entire parcel the same zone, or to “choose” their zone. The City notes that others have been allowed to choose their zone without going through a public hearing or zone change application, and the City argues that it would be doing something different than other applicants if it required Red Root to go back for a zone change.”

Attendees in the Escalante City Council chambers
March 21, 2023 Escalante City Council meeting, where residents raised concerns, including about zoning issues, related to the citing of a Family Dollar Store in Escalante. Insider

In response to this assertion, Plehn states, “The City’s practice of allowing, through an administrative process, owners of split-zoned parcels to choose the district regulations that will apply to the property as a whole does not comply with either local ordinance or state law. As stated, the Zoning Code makes clear that only those uses listed as permitted or conditional for any particular zoning district are allowed within that district, and the City may not use the administrative process as a de facto rezone of the property for the desired use where no ordinance has been enacted to govern such situations, as MLUDMA provides that zoning districts may only be altered or amended by the legislative body, through a legislative process.”

Because the advisory opinion was issued nine months following his request to the Office of the Property Rights Ombudsman, Winkelman says there isn’t any recourse available on his part, at this time. “I did ask the ombudsman what I can do from here,” said Winkelman. “If I had taken the board of adjustments decision further up the chain onto the district court, within thirty days of that decision…if I had done that, then that would have saved my spot to use this advisory opinion take action with the city if I wanted to.”

But in spring of 2023 he had no way of knowing when the advisory opinion would be issued, or what the Office of the Property Rights Ombudsman’s opinion would be.

“Where I’m at with it, I’m kind of at the point where I want people to really know where our public officials are at. Maybe the next time the whole town shows up with petitions and you fill up this room, you take things a little more seriously and you don’t do something just because it’s been done that way in this rural town for a long time.”

“We came forth and tried to use our rights and the city was unlawful in what they did. We had petitions and went unheard—they just went for it,” continued Winkelman. “It seems there needs to be something in place that deals with these kind of ambiguities, and to tighten up these loose processes.”

Winkelman noted that he felt it took courage for people who stood up and spoke during the city council meeting. “There were people who were nervous and don’t do public speaking very often. Catie Clery was the one who brought it up [the zoning issue] at the city council meeting. She brought it up and they just shut her down,” said Winkleman.

“We all felt it at the meeting, that our voice was being silenced,” said Clery, reflecting on what happened at spring 2023 city council meeting, and also following her own review of the advisory opinion. “But it’s important, because people living next to these parcels need to have a say, and have that opportunity for public input.”

Escalante Mayor Melani Torgersen, and city attorney Barry Huntington, who sits on the Escalante City’s Board of Adjustments which denied citizen appeals of the project, could not be reached for comment for this story.