"We understand that it's a valuable piece of property that should be developed," said homeowner Hamid Omana. "But develop it as you promised," he added, referencing land agreements that date back to the mid-1990s.
At that time, developer John West who is now with Cottonwood Partners agreed to limit building heights bordering the neighborhood to two stories totalling 154,000 square feet. Parking would also be at street level.
West sold the parcel to Regence Blue Cross Blue Shield of Utah but is now buying it back with the intent to build one four-story and one six-story office structure, together exceeding 263,000 square feet. A two-story parking garage running parallel to residential backyards is also in the plans.
Omana and others point to legal interpretations of Utah's 2005 Land Use Development Management Act (LUDMA) as roadblocks for construction of the buildings. The city's zoning for the property specifies two-story or 35-foot height limits but will allow up to six stories if the added height will not adversely affect surrounding land uses. That extended height requires the granting of conditional-use permits.
Municipalities previously had broad discretion to deny those permits and often disadvantaged developers by doing so, Omana said. But the 2005 legislation gave developers an edge by requiring that cities approve developments if appropriate steps could be taken to mitigate any negative impacts. LUDMA also allows cities to deny conditional-use permits if conditions and standards are not appropriate, Omana added. That wording gives his neighborhood hope that their lawsuit will not be in vain.
The project squeaked through the planning commission in June, with member Lindsay Holt voicing her opposition to the development's size but voting in favor because the state Legislature "has tied the city's hands."
At that time, Commissioner Jennifer Shah praised the project's design but said it was not necessarily appropriate next to a residential area. However, the planning board lacked firm legal footing to deny the project, Shah said of her reasoning to vote for approval.
"I would not want that in my backyard. I understand why they're unhappy about it," Cottonwood Heights Mayor Kelvyn Cullimore said. "But according to our attorneys, the land use is permitted."
At least 50 conditions were placed on the project, Cullimore said. But Omana and his neighbors believe they do little to ease its negative impacts.
Cottonwood Partners agreed to reduce floor heights by three inches, a condition that Omana called "embarrassing." He also scoffed at the idea that vines growing on the concrete parking garage would allay its ill effect on their homes and property values.
"The city has been hiding behind this LUDMA law and they have been cowardly, so we had to take the fight up," Omana said. At the same time, he acknowledged that it's unlikely the judge will rule against a city and planning commission.
However, if the neighborhood does score a win in court, "it would give cities more courage to be more aggressive with conditional-use permits," Cullimore said.
"Our obligation is to try and apply the law equally," Cullimore added, "under the guidance of the best land-use attorneys."
P The case will be heard at 8:30 a.m. Tuesday before 3rd District Judge Anthony Quinn in Salt Lake City.