Orem Solar Panels

20181228 Grounds for complaint-V11-trim

Grounds for Complaint -- Version 2 (compact) (see original below)

In about 250 cases over a period of about five years, Orem residents have been adversely affected by all the following consequences of city action, including the plaintiff here:

1. Disregarding multiple explicit state and federal statutes encouraging solar panels (but not yet requiring solar panels as in California)

The behavior of the city of Orem is incorrect in refusing to issue building permits for solar panels because that city behavior goes directly against the exact words of at least one state statute, obviously written to deal with the exact situation we have at hand concerning the installation of solar panels, probably based on the typical tendency of cities to resist such things, as we have also seen on a grand scale in California. The state of Utah has at least 86 different legislative and regulatory programs to encourage the use of solar power by state agencies and by all state residents, including a substantial tax credit to encourage the installation of solar panels. The tax credit was set at $2000 at the time that the solar panels were scheduled to be installed on the Huff residence in the fall of 2017, along with the usually much larger federal tax credit of 30% of the cost of the installation. That puts total tax credits in the range of $12,000 for many installations. Both tax credits are time-limited.

Does anyone think that the state of Utah (of which Orem City is a subdivision) was trying to discourage installation of solar panels with its offering of a $2000 tax credit, and so the city of Orem is "just doing its job" in accordance with Utah state policy to work hard to stop the installation of solar panels using any means available? Of 9 major Utah cities polled, only Orem has an anti-solar-panel policy like this.

In an accompanying statute, cities are required to propose a plan that includes the positive ways in which they are going to encourage the use of solar panels. As far as I know, the city has no such plan, making it again out of step and out of compliance with state law. Utah Code 10-9a-401(2)(d).

10-9a-401. General plan required -- Content.

Effective 5/8/2018

(1) In order to accomplish the purposes of this chapter, each municipality shall prepare and adopt a comprehensive, long-range general plan for:

(a) present and future needs of the municipality; and

(b) growth and development of all or any part of the land within the municipality.

(2) The general plan may provide for:

(a) health, general welfare, safety, energy conservation, transportation, prosperity, civic activities, aesthetics, and recreational, educational, and cultural opportunities;

(b) the reduction of the waste of physical, financial, or human resources that result from either excessive congestion or excessive scattering of population;

(i) food and water; and

(ii) drainage, sanitary, and other facilities and resources;

(d) the use of energy conservation and solar and renewable energy resources;

In this very specific case, the state statute specifies that putting solar panels on a house is not to be considered an "alteration" for the purposes of local zoning law. Utah Code 10-9a-511(1)(c). Without any explanation or justification I can find, the city of Orem has completely and directly ignored that very specific statutory pronouncement by calling the installation of solar panels on homeowners' roofs "alterations" in its permitting processes and related databases, and denying permits for those solar panels based on that criteria.

The statutory phrase itself seems to contemplate and authorize the installing of solar panels in the future, and so does not merely refer to existing building conditions. Notice the 2018 effective date, meaning it is of recent legislative concern and presumably is especially focused on current issues:

10-9a-511. Nonconforming uses and noncomplying structures.

(1)

(a) Except as provided in this section, a nonconforming use or noncomplying structure may be continued by the present or a future property owner.

(b) A nonconforming use may be extended through the same building, provided no structural alteration of the building is proposed or made for the purpose of the extension.

(c) For purposes of this Subsection (1), the addition of a solar energy device to a building is not a structural alteration. Effective 5/8/2018

Certainly the city's behavior concerning solar panels is contrary to Utah's stated public policy on this general issue, as exemplified by the very specific recent 2017 restriction on the powers of homeowners associations so that they can usually not limit the installation of solar panels unless they actually own the roof where those solar panels are to be installed. Is the city of Orem claiming that it is authorized to act as a homeowners association for the whole city of Orem, AND that it owns the roofs of every home in Orem so it can ban solar panels there? I don't think it would want to go that far. If it did "own" every roof in Orem, it ought to have some documentary proof and it ought to have a paper trail of paying out compensation for the control of those roofs. Otherwise, there is a good argument that the city is involved in a massive "taking" of all the rooftops in Orem, or at least the rooftops of 250 people. And if it wants to rely on that logic, it ought to come up with some serious compensation money.

For the hyper-technical statute reader, we should notice that the term "for purposes of this subsection" certainly makes it clear that it applies to this particular subsection, but notice that it does not say "only" for this subsection. It really could be nothing more than a reminder about this particular subsection. We should remember that the state of Utah is strongly encouraging the installation of solar panels, and so we ought to read this subsection with that in mind.

The language of the subsection certainly does not say that it does not apply anywhere else in the statutes except for this subsection. Indeed, it could be intended to apply everywhere else, and probably was so intended, with this particular clause just making sure that it does apply to this particular section which has to do with noncomplying structures. Or, we might read it the other way, that adding solar panels to the home does not make it a nonconforming structure, that is, nonconforming to zoning regulations. Therefore it would not be subject to zoning regulations. Apparently, the whole purpose of this subsection is to loosen up over-restrictive city regulations on multiple topics.

Perhaps we could go so far as to say that if someone had installed solar panels on their house without getting a permit from the city, that installation could not be used as a basis for preventing their getting building permits for other work on their home such as making an addition, or perhaps adding other solar panels.

As things stand, as a very practical matter, the only reason that someone needs a city building permit for solar panels is because of the requirements of the public utility power company Rocky Mountain Power to link up with their grid. One could install a totally self-contained solar panel system and disconnect from the power grid, and there could be no objections made to that homeowner action. That is exactly what the city is encouraging people to do by withholding permits for solar panel installations. The homeowner would then have nothing more to do with Rocky Mountain Power or the City and its permitting office concerning the power source for his home (and any related taxes). That would be perfectly feasible and economical using today's technology, especially since the federal and state tax credits could greatly help in paying for this extra cost.

References concerning solar panels and homeowners associations:

News article:

"Utah SB 154 removes some HOA solar energy barriers for homeowners"

https://independentamericancommunities.com/2017/03/09/utah-sb-154-removes-some-hoa-solar-energy-barriers-for-homeowners/

Effective 5/9/2017

57-8a-701. Solar energy system -- Prohibition or restriction in declaration or association rule.

(1) As used in this section, "detached dwelling" means a detached dwelling for which the association does not have an ownership interest in the detached dwelling's roof.

(2) (a) A governing document other than a declaration may not prohibit an owner of a lot with a detached dwelling from installing a solar energy system.

(b) A governing document other than a declaration or an association rule may not restrict an owner of a lot with a detached dwelling from installing a solar energy system on the owner's lot.

(3) A declaration may, for a lot with a detached dwelling:

(a) prohibit a lot owner from installing a solar energy system; or

(b) impose a restriction other than a prohibition on a solar energy system's size, location, or manner of placement if the restriction:

(i) decreases the solar energy system's production by 5% or less;

(ii) increases the solar energy system's cost of installation by 5% or less; and

(iii) complies with Subsection (6).

(4) (a) If a declaration does not expressly prohibit the installation of a solar energy system on a lot with a detached dwelling, an association may not amend the declaration to impose a prohibition on the installation of a solar energy system unless the association approves the prohibition by a vote of greater than 67% of the allocated voting interests of the lot owners in the association.

(b) An association may amend an existing provision in a declaration that prohibits the installation of a solar energy system on a lot with a detached dwelling if the association approves the amendment by a vote of greater than 67% of the allocated voting interests of the lot owners in the association.

(5) An association may, by association rule, for a lot with a detached dwelling, impose a restriction other than a prohibition on a lot owner's installation of a solar energy system if the restriction:

(a) complies with Subsection (6);

(b) decreases the solar energy system's production by 5% or less; and

(6) A declaration or an association rule may require an owner of a detached dwelling that installs a solar energy system on the owner's lot:

(a) to install a solar energy system that, or install the solar energy system in a manner that:

(i) complies with applicable health, safety, and building requirements established by the state or a political subdivision of the state;

(ii) if the solar energy system is used to heat water, is certified by:

(A) the Solar Rating and Certification Corporation; or

(B) a nationally recognized solar certification entity;

(iii) if the solar energy system is used to produce electricity, complies with applicable safety and performance standards established by:

(A) the National Electric Code;

(B) the Institute of Electrical and Electronics Engineers;

(D) an accredited electrical testing laboratory; or

(E) the state or a political subdivision of the state;

(iv) if the solar energy system is mounted on a roof:

(A) does not extend above the roof line; or

(B) has panel frame, support bracket, or visible piping or wiring that has a color or texture that is similar to the roof material; or

(v) if the solar energy system is mounted on the ground, is not visible from the street that a lot fronts;

(b) to pay any reasonable cost or expense incurred by the association to review an application to install a solar energy system;

(c) be responsible, jointly and severally with any subsequent owner of the lot while the violation of the rule or requirement occurs, for any cost or expense incurred by the association to enforce a declaration requirement or association rule; or

(d) as a condition of installing a solar energy system, to record a deed restriction against the owner's lot that runs with the land that requires the current owner of the lot to indemnify or reimburse the association or a member of the association for any loss or damage caused by the installation, maintenance, or use of the solar energy system, including costs and reasonable attorney fees incurred by the association or a member of the association.

Enacted by Chapter 424, 2017 General Session

2. Informally and improperly adding extra restrictions to city ordinances

The behavior of the city of Orem is incorrect in refusing to issue building permits for solar panels because that city behavior includes blatantly changing and misconstruing its own ordinance which it uses specifically to deny the solar panel building permits. Orem City Code Article 22-1-4D. Its ordinance requires that new building permits for any and every purpose be denied, essentially freezing forever any changes of any kind that a homeowner can make to his property, with no obvious remediation process, if any previous permits were not correctly applied for and properly completed, according to current city policies and interpretations.

In spite of numerous requests, made in person and in writing, we were not able to get a statement of the exact objections the city has to the condition of our property and what exact methods we might use to remedy the situation. Ordinances and statutes relied on were never supplied. This general and persistent vagueness made it impossible to take any further action to remedy the situation.

The language of that ordinance specifies that "a remodel or addition" is covered but does not include the term "alteration." Nonetheless, the city uses that exact same ordinance to deny permits for solar panels, while calling solar panel installations "alterations" in their documents and databases and while ignoring the state statute specifying that solar panel installations are not "alterations." This demonstrates that the city has at least twice ignored or misread state statutes and its own ordinances in improperly denying solar panel installations, with the city clearly going against state legislative intent.

I can imagine a creative defense attorney saying that the word "alteration" is only controlled by statute in the case of existing nonconforming uses, and not for any other zoning purposes, thereby allowing the city to constrain alterations by informal addition to its own ordinances of the word "alterations." But this seems like an extremely tortured defense which is overcome by other considerations.

Presumably, with zoning ordinances being very similar throughout the state, perhaps mostly coming from a single source in the first place, the state statutory pronouncement concerning the use of the word "alteration" should be read as directly applying to the Orem city ordinance. It would be somewhat bizarre to imagine that each city gets to make up its own set of terms about all real estate zoning matters so that the state, when it issues pronouncements concerning real estate matters, it can be said to be using a different technical vocabulary than the local cities. I think that would be a ridiculous and chaotic situation, and we need to assume that the cities and the states -- with cities being nothing more than state subdivisions, and not totally autonomous entities -- are on the same page concerning the use of terms in city zoning codes. Those zoning codes were specifically authorized by the states in the first place, and it is presumably expected that the cities will use a uniform method of applying those state statutes in their own cities, including a uniform language and set of terms.

22-1-4. Building Permits Required.

...

D. No building permit shall be issued for a remodel or addition to any structure if it can be shown that previous construction has taken place on the parcel or lot without the issuance of a building permit from the City in violation of City ordinances and the violation has not been brought into compliance.

(Ord. No. O-2013-0011, Enacted 05/28/2013)

3. Improperly deleting critical city ordinances that actually authorized the homeowner's behavior complained of by the city.

Careful historical research demonstrates that the city for many years had its own ordinance which authorized city residents to freely use their back-yards and side-yards for extra structures which were described as "arbors/pergolas," and we can safely assume that many homeowners took advantage of that provision, whether for new homes built during the period of 1997 to 2003, or for upgrades to existing homes during that period, including homes built before building permits were necessary (starting about 1990?). It would be helpful if the City would supply that historical information from its records.

A "pergola" is simply another word for a covered or partially covered deck, whether it is attached to a house or not. This ordinance was clearly in effect for about 6 years, from 1997 to 2003, and then in the year 2003, in one of the many rearranging and renumbering processes of the city code, that clause concerning " arbors/pergolas" was simply dropped from the code, with no apparent attempt to specifically repeal that language, even though in every other case examined, the City Council was careful to mark those items that were deleted from or added to the city code at each occasion for a change. Apparently it was nothing more than a clerical error, although it could have been maliciously done. But now the city is pretending that it never did have this clause in effect, which, coincidently, was in effect during the time the particular supposedly offending structure in question was built at the Huff home, and so that structure would have been eligible for a permit. It is known for certain in a few cases, and is likely in many other cases among the 250 cases, that the city denied permits based on the existence of these "arbors/pergolas" kinds of structures.

Here was the state of the City ordinances in effect in 2000, the last known status before they were deleted in the 2003 compilation.

Section 22-6-8

...

C. Covered Decks and Patios

Covered decks/patios and decks/patios extending from upper floors of the main structure shall

comply with the setback requirements of the zone. Uncovered decks/patios may extend to the side and

rear property lines provided that the deck/patio floor level does not exceed eighteen inches (18") in

height above the grade. If the uncovered deck/patio exceeds eighteen inches (18") in height above the

grade, it shall be set back at least ten feet (10') from the side and rear lot lines.

D. Arbors and Pergolas

Arbors/pergolas may be constructed in a side or rear yard and shall not be subject to setback

requirements. Arbors/pergolas shall not be constructed in the front or side yard that faces a dedicated

street.

We might notice there that are some major disparities between the "covered decks and patios" section and the "arbors/pergolas" section. Reading them together probably results in constraining the definition of the "covered decks and patios" section. In fact, the arbors/pergolas section almost cancels out the entire "covered decks and patios" section, and it is hard to tell what is left. As one example, obviously, the setback rules in the "covered decks and patios" section are overridden by the arbors/pergolas section.

By one reading of arbors/pergolas clause, there are cases where pergolas and arbors might be installed in the front yards of homes if the home does not face a dedicated street.

Here is one succinct definition of a pergola as commonly used in the building industry:

"A pergola is an outdoor structure consisting of columns that support a roofing grid of beams and rafters. This roofing grid may be left open or covered so as to create an area sheltered from the elements. Pergolas may be freestanding or attached to a house." https://www.thespruce.com/what-is-a-pergola-2131097

The initial 1990 City Code setback rules obviously eventually became unacceptable to the City Council, at least in 1997 when it passed the clause encouraging arbors and pergolas. If, by that deletion of the arbors/pergolas clause in 2003, the setback rules were returned to their original 1990 status, that could cause a great deal of regulatory chaos for at least that six years of now-completed home-building from 1997 to 2003, including the exact chaos which has happened at my house.

It would be interesting to know how many homes were built during that six-year period which are now being penalized by city action. If they got a permit during that six-year period when they were clearly perfectly legal, is it only those that did not get a permit during that period that are being penalized now?

That would help demonstrate that there was at least a 6-year period in which pergolas were completely legal. Were there houses that were built later, perhaps before the surge of solar panel installations began in 2012, where those houses had pergolas of various sorts, with or without permits, and the city is not penalizing them? Perhaps what we are seeing is simply the effects of a change in administration and a change in governing philosophy. It would be interesting to know more detailed history on how the presence or absence of this arbors/pergolas clause has affected housing in Orem.

As an interesting curiosity, and as an indicator of the continuing interest of the city in sprinkling arbors, pergolas, and similar structures about the city to increase its beauty and the living enjoyment of its residents, and as a way to use the city's own code to better define the meaning of the terms arbors and pergolas, I offer these selections from the city code dated 2018, 2001, 2005, and 2014, with words of special interest highlighted:

Article 22-2. Definitions

22-2-1. Definitions.

For the purpose of this Chapter, certain words and terms are defined as follows:

Space Open to the Public

a. The extended area is accessible to the public;

b. The space open to the public is designed to attract activity throughout the year and not on a limited special event basis;

c. The area is not raised more than two feet above the public sidewalk grade;

d. The area has at least 25% vegetation/seating coverage;

e. The majority of the provided amenities are permanent in nature (e.g. built-in seating, fountains, plazas, landscaping rocks, short walls). Conceptual examples of “spaces open to the public” are shown in the following images:

a. Qualifications of “open space” areas. Areas that qualify as an open space include and shall be in substantial compliance with the following:

i. Plazas, pocket parks, seating, fountains, sculptures, natural or man-made water features

ii. Outdoor dining areas, areas under pergolas, public or private courtyards

iii. Landscaping, including lawn/xeriscape areas, flower beds, tree grates/planters (excluding tree canopies), Low-impact developments (LIDs)

iv. Public or private community, rooftop, or balcony gardens (provided they are accessible to 50% or more of the units on the lot)

v. Private sidewalks/paths

vi. Private outdoor amenities (swimming pools, sports courts, courtyards)

(Ord. No. O-2018-0022, Enacted, 06/19/2018)

============================================================================

Article 22-11. PD Zone

22-11-19. PD-7 Zone, 100 South between 400 West and 200 West

A. Purpose. The purpose of this PD-7 zone is to establish a planned residential development of single family detached homes designed for patio living. (Ord. No. 661, Revised, 04/10/1990; Ord. No. O-01-0021, Amended, 06/12/2001)

==================================================================

Article 22-18. Mobile Home Parks and Travel Trailer Courts

22-18-2. Approval.

A. Before a permit shall be issued for a mobile home park or a travel trailer court, the overall plan of the development must be submitted to the Planning Commission for its review. (Ord. No. 661, Revised, 04/10/1990; O-01-0021, Amended, 06/12/2001)

B. The overall plan must show:

1. The topography represented by contours shown at no greater intervals than two feet (2').

2. The proposed street and mobile home space layout or the travel trailer space layout.

3. Proposed reservations for parks, playgrounds and open spaces.

4. Size and character of recreation buildings, pergolas, arbors and other structures associated with land and facilities to be used by the mobile home park occupants.

5. Layout of typical mobile home spaces or travel trailer spaces.

===============================================================================

Article 22-11. PD Zone

22-11-35. PD-22 Zone, Urban Village.

A. Introduction and Purpose. The PD 22 zone is designed to be applied only in an area located between 800 North Street and approximately 1050 North Street and between 900 West Street and 1200 West Street (old alignment). This property is a gateway to the City of Orem and as such is uniquely suited for commercial, office, and residential uses. Its development for these uses is important to the economic vitality and tax base of the City of Orem. The PD 22 zone is designed to maximize office, commercial, and residential uses within a mixed-use setting. The PD 22 zone is also the intended to reduce vehicular trips by designing a community where people can live close to where they work and shop. A major objective of the PD-22 zone is to create aesthetically pleasing streetscapes with landscaping that buffers sidewalks from major vehicular traffic ways, landscape features that take advantage of the unique terrain within the zone, recreational Amenities, and social gathering areas that promote a walkable community.

(Ord. No. O-02-0048, Enacted, 12/10/2002; Ord. No. O-05-0025, Amended, 8/9/2005)

D. Permitted Uses. The following uses shall be permitted in the PD 22 zone:

Permitted Uses - PD 22 zone

Standard Land Use Code/Category

1112 Residential Condominiums

1120 Apartments

1500 Transient Lodging

7123 Botanical Gardens and Arboretums

7610 Parks General Recreation

(Ord. No. O-02-0048, Enacted, 12/10/2002; Ord. No. O-05-0025, Amended, 8/9/2005; Ord. No. O-07-0030, Amended 06/12/2007; Ord. No. O-2012-0034, Amended 12/18/2012; Ord. No. O-2014-0019, Amended 05/27/2014)

L. Additional Development Standards and Requirements. The following development standards and requirements shall apply to all development within the PD-22 zone:

3. Streets.

d. Sidewalks, Plazas, and Outdoor Café Areas.

(1) Sidewalks shall be constructed on both sides of all streets and shall be separated from the street by planter strips at least five (5) feet in width. However, a planter strip shall not be required along the sides of interior streets (streets other than 800 North, 1200 West and 900 West) adjacent to commercial or mixed use areas where a building is constructed adjacent to the sidewalk.

(2) Sidewalks abutting mixed-use, commercial, or office structures shall have a minimum width of twelve (12) feet and a maximum width of twenty (20) feet. Sidewalks may be larger than twenty (20) feet when designed as an integral part of outdoor activities and/or outdoor seating. Sidewalks abutting residential-only buildings shall have a minimum width of six (6) feet and a maximum width of twelve (12) feet. All other sidewalks shall be at least five (5) feet in width.

(3) The PD-22 zone shall include at least one open space plaza of at least one-half (1/2) acre, which shall be designed to accommodate outdoor activities. Covered areas, such as gazebos, arbors, pergolas, may be used to enhance sidewalks.

e. Streetscape Features. All development in the PD-22 zone shall incorporate streetscape features adjacent to all streets. Sidewalks adjacent to streets shall include landscaping of at least ten (10) percent of the area of the sidewalk that is adjacent to the street. The landscaping shall be placed adjacent to the sidewalk and shall include trees, bushes, flowers, ground covers, etc. At least one streetscape feature shall be installed and maintained every thirty (30) lineal feet along all sidewalk areas. Acceptable streetscape features include: trees, planters, benches, drinking fountains, decorative garbage can holders, outdoor clocks, streetlights, kiosks, statuaries, and water features. As part of the streetscape requirement set forth above, at least one tree shall be planted and maintained every sixty (60) lineal feet of sidewalk. Streetscape features shall be designed and maintained so as not to obstruct pedestrian traffic.

==================================================================

The above three items seem to supply plenty of reasons to reverse the action of the city in denying these solar panel permits, but there are numerous other issues that ought to be raised and resolved in this process, any one of which could change the outcome.

4. Intentional retroactive application of statutes, especially criminal statutes (see item 7 below)

For example, this ordinance that requires that the city refuse to issue permits while other issues are still outstanding, appears to have been passed in 2013, just after the first solar panel installation was completed in 2012. This, plus all the other circumstances of this case, appears to demonstrate that the ordinance was passed specifically to allow the city to apply it retroactively to deny as many solar panel applications as possible. If we note that the city loses about $500 a year on taxes for every home that installs solar panels, and thus allows the homeowner to greatly lower his electric power bills (and his payment of municipal and state sales taxes, municipal franchise taxes, welfare taxes for the benefit of those who cannot afford electric power, etc.), we might better understand the city's unstated reasoning.

We might wonder whatever happened to the normal rules of constitutional law, whether federal or state or city, that government entities cannot pass retroactive statutes, especially where, as here, it imposes a potential criminal penalty, limited only by "prosecutorial discretion," on anyone who can retroactively be charged for being in conflict with that newly passed statute.

These standard rules against retroactive application of laws should apply to both states and cities, since, presumably, they are both controlled by the same legal rules. If a state cannot do it, as most people would agree, a city should not be able to do it since they are part of a single legal system.

It should be considered municipal misbehavior to pass an ordinance in this way, with this intention of retroactivity, and with this effect.

5. Failing to supply a statute of limitation on civil and criminal laws.

In at least two places in its code, the city specifies penalties for failure to strictly obey the zoning code, but nowhere does it mention any statute of limitations for those penalties. In this particular case, it reaches back at least 16 years to give life to an old violation. This violation occurred under the time of the first owner, and now this violation is being enforced against the third owner. This seems like an interesting new legal concept where the crime of one person can be charged against another.

When an explicit statute of limitation is missing, and since state statutes and the city ordinances are essentially parts of the same integrated legal system, perhaps the default should be to use either the one-year or the two-year state statute of limitation on infractions or misdemeanors, respectively. Certainly they should never be left wide open and then be applied 16 years later, as in this case, without any advance notice of the city's claim of an outstanding violation. Advance notice of such a secretly pending violation would certainly prevent the transfer of the home at time of sale until the question was cleared up.

It is another common aspect of the American legal tradition that most laws that carry with them a potential penalty must also include a statute of limitations to limit the effect of those statutes. Otherwise, over time, every person in the nation could potentially become a criminal on a hundred different counts which a criminal prosecutor or civil case plaintiff could then bring up at any time in a person's life to harass him or her. This ordinance has no statute of limitation, meaning that it can theoretically can go back at least as far as in this case which is 16 years, and the city attempts to use it in that way in its communications with its citizens.

It should be noted here that in the process of making and pursuing this application for solar panels, the homeowner was verbally threatened at least twice with the criminal enforcement of the city ordinances in question. This makes it a great deal more serious than a simple theoretical possibility found in the words of the city code. If nothing else, a declaratory judgment or injunction ought to be available to prevent the city staff from making any more threats of this kind as a means of trying to compel compliance with unreasonable city code content and interpretation.

76-1-302. Time limitations for prosecution of offenses -- Provisions if DNA evidence would identify the defendant -- Commencement of prosecution.

(1)

Except as otherwise provided, a prosecution for:

(a)

a felony or negligent homicide shall be commenced within four years after it is committed, except that prosecution for:

(i)	forcible sexual abuse shall be commenced within eight years after the offense is committed, if within four years after its commission the offense is reported to a law enforcement agency; and

(ii)	incest shall be commenced within eight years after the offense is committed, if within four years after its commission the offense is reported to a law enforcement agency;

(b)	a misdemeanor other than negligent homicide shall be commenced within two years after it is committed; and

(c)	any infraction shall be commenced within one year after it is committed.

One might reasonably conclude that the city of Orem is extremely sloppy about the way it writes and reads and maintains and enforces all ordinances statutes and constitutions. That extreme carelessness on so many levels seems to indicate that the city perhaps ought to be deprived of its land-use permitting powers for a time to allow it to reconsider, retrain, and retool.

6. Failure of the city to give proper notice on public real estate records of claimed encumbrances on real estate

Another of the accepted and expected rules of the American legal tradition is that all encumbrances that are to be taken into account in real estate transactions need to be placed on the public land records where any purchaser, and any real estate agents and real estate title insurance agents, can know of these things and take appropriate action. Often that means that these threatened encumbrances are taken care of before any transfer of title takes place, leaving the new owner with a completely clear title and complete freedom in the use of the property.

The current city practice of giving no advance public notice of any encumbrances it plans to enforce on city real estate, but instead, waiting till the last minute, when a permit application is filed, and then surprising everyone with a denial (after a cursory in-office "Google maps" evaluation which was shown to be inaccurate at least 40% of the time in one small sample of 11 items that was examined), is a very unfair and inconsiderate practice. It also triggers title insurance claims, as in the current case, involving at least one homeowner, and probably involving most of the 250 homeowners (depending on the exact terms of their insurance) who have been affected by city action in withholding solar panel permits. If, as in one specific situation, the title insurance company is obligated to pay at least $25,000 in legal services to rectify the situation or as an insurance payout if all else fails, this could mean that the city has caused 250 X $25,000 =$6.25 million dollars in insurance claims directly related to its inconsiderate enforcement of encumbrances invented on the spur of the moment at the time of an application.

Both homeowners and title insurance companies are greatly damaged and ought to be enraged by this extremely inconsiderate behavior by the city. Unless the city is to be considered above the law, it ought to face the exact same consequences of anyone else who has a claim against a piece of property, such as a mechanic's lien or an easement, but fails to record it properly. In most cases any such unrecorded encumbrances are not enforceable, and that ought to be the consequence for a city which is too lazy to do its zoning inspection and enforcement homework ahead of these predictable requests.

The approximately 25,000 homes in Orem appear to turn over at the rate of about 6,000 a year, indicating that, at least theoretically, within a period of 4 or 5 years, the entire housing base of Orem turns over. If the city has potential encumbrance claims against at least 5000 of these homes, it ought to make its claims clear so that it will not impede the free market turnover in such a large number of homes. People now have grounds for a serious fear about buying homes in Orem, since the behavior of the city offices can put the free use of their land in great jeopardy through denying building permits. Since the city has also removed every option for an internal appeal, that makes the remedy for any of these things very difficult.

It seems completely within the powers of the city permit office to do a brief home inspection of every home in the city and verify whether the city wishes to claim an encumbrance against any of these homes. If, instead, someone were to hire professionals to quickly do this work, it could cost as much as $100 a home to make a careful inspection, make the report, and record the results on public land records. That would result in a total cost of about $2.5 million ($100x25,000 homes=$2,500,000). A more efficient system might bring the cost down to $20 a home or a total of $500,000. But if these inspections were done as a regular part of the city employees' work, there would be no extra cost to anyone, and the encumbrances claimed by the city would be far more accurate than they are today, since there would be actual physical inspections of the properties, not a mere glance at an online aerial photo.

7. The city routinely threatens its citizens with outrageous penalties for minor and questionable zoning violations.

As the city code is now written, for every day that there is a minor zoning infraction or misdemeanor in the city of Orem, as determined by the city, a citizen can be charged with a fine of $1000 and six months in jail for every day that the violation is deemed to be in effect. In my case, since I bought the house nearly two years ago, I could be charged with a fine of $670,000 plus 335 years in jail, just because I bought this house 22 months ago. This problem was caused by the original owner 16 years ago, but since the city claims I can be charged with his crimes today, that would make me liable for a fine of $5,840,000 plus 2920 years in jail.

These are obviously absurd results, and the city ought to both adjust its penalties to some reasonable scale and stop making threats to enforce them. For example, a $100 fine and a day in jail might be sufficient, without any option for multiple penalties for each infraction. As it is, a person would get smaller fine and less time in jail if he were a mass murderer than if he overlooked some small zoning ordinance, which itself might be suspect.

As I mentioned above, in the process of making and pursuing this application for solar panels, the homeowner was verbally threatened at least twice with the criminal enforcement of the city ordinances in question. This makes it a great deal more serious than a simple theoretical possibility casually found in the words of the city code. If nothing else, a declaratory judgment or injunction ought to be available to prevent the city staff from making any more threats of this kind as a means of trying to compel compliance with unreasonable city code content and interpretation.

At the times those threats were made, the point was made that if the City prosecuted someone on these outrageous criminal charges they would probably end up having to do that to the other 250 people in the same situation, and they decided they would not attempt to do that at the time. That would have been another interesting way to invent another class-action suit based on criminal principles.

Article 1-1. General Provisions

1-1-7. General penalty.

Any person committing any act or omission to act which is declared to be a misdemeanor or unlawful by this Code, where no specific penalty is provided therefor, shall be punished by a fine of not exceeding one thousand dollars ($1,000.00) or imprisonment not exceeding six (6) months, or both such fine and imprisonment.

Every day any violation of this Code shall continue shall constitute a separate offense.

(Ord. No. 661, Revised, 04/10/90)

Article 2-1. Municipal Administrative Code

2-1-2. Violation of Municipal Administrative Code.

Unless otherwise specified by State law or this Chapter, the violation of any of the provisions of the Municipal Administrative Code of the City of Orem shall be a class B misdemeanor.

Article 12-4. Enforcement

12-4-5. Penalties for violation.

Any person violating any of the provisions of this Chapter shall be guilty of a Class B misdemeanor and shall, upon conviction therefor, be punished by a fine in a sum not to exceed one thousand dollars ($1,000.00) or by imprisonment for not more than six (6) months or by both such fine and imprisonment.

(Ord. No. 661, Revised, 04/10/90; Ord. No. O-98-0005, Amended, 01/27/98)

8. Orem city is actively resisting efforts by the state of Utah to use solar power to lower energy costs and pollution effects for state offices and for state residents, putting Orem city seriously out of step with other Utah cities. Orem seems to be the only Utah city that has such regressive solar panel policies.

Utah is supporting 86 different legislative initiatives to encourage the use of solar power within the state of Utah, including a $2000 tax credit for an installation. Many of these initiatives are Utah-only, while some are administered in conjunction with the federal government, which itself has some very powerful incentives for adopting solar power, including its 30% tax credit for homeowner installations..

We should take note that starting in 2020 the state of California will require all new housing to have large amounts of solar panel electricity production. California started its pro-solar activities in 1979 and has been escalating its efforts constantly since then. With electric power rates reaching $.50 per kilowatt hour in San Diego, as one reference point, and with the state's great concern about pollution problems, it decided to take vigorous action. Utah has not quite yet gone so far, but it is going in that direction. Its 2017 restraints on homeowners associations, preventing them from blocking solar panels on many homes which are part of homeowners associations, is one indication.

Item 1 above in this document, concerning specific statutory language, shows that the state wishes to redefine how cities view the installation of solar panels, producing a statute with very precise language to make sure that solar panels are not treated as city-controlled building alterations. This same powerful tendency of cities to resist solar panel installations was apparently what prompted California to act so aggressively in the first place. It seems likely that the Utah Legislature will eventually reach the same point.

It may come as a surprise to Utahns, but the air quality in several important areas of the state of Utah are often measured to be as bad as the air quality in San Francisco and Los Angeles. This makes using solar panels to lower air pollution a pressing topic. When we notice that solar panels linked with electric cars gets rid of nearly all pollution and lowers the cost of transportation to $.01 per mile for "fuel" for electric cars, as opposed to $.15 a mile for gasoline fuel, these economic pressures are very powerful and will surely not diminish, especially as Utah's population keeps growing so rapidly.

It is notable that one of the Orem City Council members recently installed solar panels at his home for the purpose of charging his electric car. Naturally, it was a simple matter for him to get the necessary permit, even though his basement had been finished without the required city permit, where others may have very significant administrative barriers to overcome.

If Orem does not think that it has enough revenue, it needs to find another way to fill that need rather than preventing people from switching to solar power through manipulating their building permit system to unfairly discriminate against city residents. Apparently the city collects about $500 a year in taxes from each home that uses normal public utility power, and loses that $500 if homes switch to solar panels. If there are about 25,000 homes in Orem, that would mean that the city would lose $12.5 million a year if everyone switched solar panels, and over the 25 year life of the solar panels, the city would lose $312.5 million. The Rocky Mountain Power Company would lose about $2000 a year for each home or about $50 million a year if the entire city switched solar panels, and, over the 25 year life of solar panels, it would lose $1.25 billion. Since the city and Rocky Mountain Power Company are closely bound together, and the power company collects the taxes for the city through its electricity billing system, it should be easy to see why both the city and the power company would like very much to keep people from switching to solar power. That strong local government and power utility resistance to solar panels is a giant problem in California and it looks like that same attitude has begun to migrate to Utah.

9. Contrary to clear state statutory requirements needed to establish and justify city land-use and zoning powers, the city of Orem has no internal "appeals" system operating whatsoever, by its own choice

Contrary to state statutory requirements, the city has no statutory appeal system whatsoever, even though the state statutes could be read as making the implementation of a vigorous appeal system a condition precedent to the city being granted land-use and zoning powers. If the elaborate appeal system designed by the legislature is to be considered a "condition precedent" to a city exercising vast powers over land-use, and Orem has obviously completely ignored that requirement, and has no operating appeal system in place whatsoever, then it would make perfect legal sense for the city to have its land-use powers removed, at least for a time, until it conforms to the state statutes.

To understand what this situation actually means in the case of Orem City, we first have to carefully define "appeals" and "variances" and distinguish between the two and how Orem treats them.

The state statute which gives the cities their powers to determine land-use parameters also requires the establishment of an internal appeals system. Those required statutory "appeal authorities" are given very broad powers, which the statutes compares to the powers of a state district court. By statute, any issue that can be raised in a district court can be raised in a local city appeal system. The main difference is that the procedures can be a little more informal at the city level.

In the state statute, a "variance" is defined as a procedure which recognizes the legitimacy and validity of all the city ordinances and procedures, but merely asks that an exception be made because of some unusual and possibly unforeseeable circumstance. Those seem like large enough limits for defining a valid "variance" procedure, but the option is given to the city by statute to narrow that variance jurisdiction even further. In the case of Orem city, its definition of an allowed "variance" is contrived to be so narrow in scope that I find it impossible to think of a hypothetical example in which a variance could be granted, making the whole variance process completely meaningless. The state statute makes it clear that the city could create a definition of a variance procedure and jurisdiction of any breadth it wishes, and is not constrained by any statute.

As just one example of the extreme impracticality of the current Orem city "variance" definition, that definition includes the requirement that any negative economic impact of current zoning laws cannot be considered as a valid reason for granting the variance, no matter how extreme that economic impact or how simple and small the requested change might be. Worst of all, the city will not allow a board of its citizens to apply some reasonable common sense to any situations like this.

Just that one requirement, the directive to exclude all economic factors, means that there is essentially no case imaginable that could fit within the variance definition. It's hard to think of a variance request that did NOT have an important economic component. Perhaps the city is blithely saying that if you don't like one piece of property for any reason, the only allowable solution in Orem is for you to sell it and buy another, that being a rather large economic question, but one which the city totally excludes. In other words, the definition of a "variance" is, and is obviously intended to be, completely unusable for any conceivable practical purpose.

To proceed to the next logical step, the city's solution to their statutory requirement to have an appeals system is that they first equate "appeals" and "variances" as being identical, and then make "variances" so extremely narrowly defined that it seems completely impossible to think of a situation in which a variance would provide any relief.

In contrast, if the statutorily contemplated appeal system was in place, where there would be a group of local citizens who acted more or less as a jury to test the reasonableness of city ordinances, then the blatant unreasonableness of the city's current policy would show up immediately and it would be quickly rectified, and there would be no need for this district court case.

To review a few of the items in this document, How can you go ahead in the teeth of a state statute which tells you, word for exact word, that you cannot do what you are doing, as with the word "alteration?" Or how do you read your own ordinances and casually add in restrictive terms which were not there in the first place, such as the term "alteration." If the city did indeed simply delete, either accidentally or intentionally, an ordinance which had been in effect for at least 6 years (1997-2003), lasting through two rounds of ordinance renumberings and then unceremoniously deleted (without any actual repeal) in the third renumbering process, which ordinance specifically authorized the kinds of structures which the city is now objecting to and using as a basis to deny further permits, and that situation is pointed out, how can the city then proceed as though that ordinance had been legitimately and intentionally repealed?

These "Keystone Cops" kinds of foolish city actions would be quickly picked up by an appeals board and rectified. It is embarrassing for a supposedly serious local government to try to enforce laws which are so improper and foolish on their face.

It is only because of this kind of absurd behavior on the part of the city that we have this case in the fourth district court. There is no other place besides the district court to take an appeal because the city has no appeal system, and is adamant that it will not allow any appeal system to operate. I even tried to invoke an obscure city ordinance, which is still in effect, which allows appeals to the city Council, but that appeal effort was also denied.

I asked an Orem citizen, who would have been acting on an appeals board if there was one operating, and he told me there have been no appeals and no variances sought or processed in eight years. The permit office staff seems to be quite proud of the fact that they have fended off every attempt at an appeal or variance case for these past eight years. Obviously, they will continue to do that unless the rules of appeals are changed to match what is in the state statutory specification. Presumably that will have to come through outside judicial action, and not from any internal initiative. In contrast, we might notice that statutorily compliant (broad) appeals are available in the city of Lehi at no charge, while the microscopically, infinitesimally-sized option of a variance in Orem costs $909 to initiate. That extreme fee difference and jurisdictional scope difference might themselves be enough to make clear the city's extremely hostile attitude about appeal options.

With the city processing at least 1200 permit applications each year, from a low of $300 in project value to a high of $14 million in project value, with a total yearly value of about $62 million, and with no recorded appeals in eight years, one might guess that there is in fact no appeal system operating because it seems practically impossible to have that much activity, over 7000 applications in eight years, and never have an issue arise concerning a city ordinance and its application. No human or group of humans is that perfect in foresight and that omniscient and prophetic.

We might note that the state statute itself was arguably quite poorly crafted on several important points, but if we simply ignore those points for the moment, the statute still sets forth a fairly clear conception of what is intended and does a reasonably good job of following through on the details. Certainly, in a case such as this one, where the city does not even begin to comply with the state statute, getting the city in compliance with the state statute would be a huge step forward in local government.

Conclusion

I expect this current scofflaw attitude of Orem city, its broad carelessness and lawlessness, will be hard to remedy without a major shock to the city corporate culture, such as removing their power to withhold permits in the real estate area for perhaps 1-5 years.

Another alternative to help discipline an out-of-control city, and compensate those residents damaged by the city's misbehavior, would be to levy damages in cases like this so that their behavior cannot go on with impunity, with no consequences whatsoever for that misbehavior. The state statute includes no explicit penalties for city misbehavior, although it seems like it would be an excellent idea to have some such clearly stated constraints. If those constraints were properly crafted, it might allow the state government and the state court system to operate with less city oversight costs, as in this case. The need for the state court system to process from 250 up to 500 different individual cases stemming from this particular example of city misbehavior by itself might be a reason to start that process now.

It is likely that, given a choice between two consequences, the city would prefer to pay damages to its injured residents rather than to have its land-use powers suspended for a time. I don't know the actual numbers, but I'm going to guess from general reading in the area that the city would lose more money in nontax contributions to the city through its negotiated permit system, where, for example, various rather extensive "impact fees," or infrastructure preparations, etc., can be required of developers in order to receive a permit, than it would lose by paying damages to individual residents. Such practical economic considerations would probably cause it to choose the damages option over the temporary "loss of powers" option.

17-1-5. Variances and Appeals.

A. The Board of Adjustment may, upon application of an aggrieved party and payment of the appropriate fee, authorize a variance from the terms of this Chapter. A variance may be granted only if it will not be contrary to the public interest and if there are special conditions making literal enforcement of this Chapter an unnecessary hardship on the applicant; provided, that the spirit of the ordinance shall be observed and substantial justice done. Before any variance may be authorized, however, it shall be shown that:

1. The variance will not substantially affect the City's Master Plan or development ordinances and that adherence to the strict letter of the ordinance will cause difficulties and hardships, the imposition of which upon the petitioner is unnecessary in order to carry out the general purpose of the City's Master Plan and development ordinances;

2. There are special circumstances attached to the property covered by the application which do not generally apply to the other property in the same zone;

3. Because of said special circumstances, property covered by the application is deprived of privileges possessed by other properties in the same zone; and that the granting of the variance is essential to the enjoyment of a substantial property right possessed by other property in the same zone. In granting the variance, the Board of Adjustment may impose such additional conditions as will, in its judgment, substantially secure the objectives of the standard or requirement that is waived or modified.

(Ord. No. 661, Revised, 04/10/1990; Ord. No. O-02-0001, Rep&ReEn 01/08/2002)

B. The power of the Board of Adjustment to grant variances shall be strictly construed, and it is the intent of this Section that variances be granted only in cases of extreme hardship, and that only minor variances be granted. Before granting any variance, the Board shall make the findings required by Subsection A. above. The findings shall be supported by facts that are made a part of the record of the Board meeting where the variance is granted. Economic hardship shall not be deemed a sufficient reason for granting a variance. (Ord. No. 661, Revised, 04/10/1990; Ord. No. O-02-0001, Rep&ReEn 01/08/2002)

C. Any person aggrieved by a decision of the City Staff or the Planning Commission in the application of this Chapter may appeal in writing first to the City Council. An application for appeal to the City Council must be filed in the office of Development Services within thirty (30) days after the date of the decision being appealed. (Ord. No. 661, Revised, 04/10/1990; Ord. No. O-02-0001, Rep&ReEn 01/08/2002)

D. Any person aggrieved by a decision of the City Council may appeal in writing to the Board of Adjustment. An application for appeal to the Board of Adjustment must be filed in the office of Development Services within ten (10) day after the date of the decision being appealed. (Ord. No. 661, Revised, 04/10/1990; Ord. No. O-02-0001, Rep&ReEn 01/08/2002)

22-1-8. Appeals.

A. Any person may appeal a decision applying a land use ordinance as follows:

1. An interpretation or application of a land use ordinance made by members of City staff may be appealed to the Board of Adjustment. A decision of the Board of Adjustment regarding the interpretation or application of a land use ordinance may be appealed to the City Council. However, an appeal to the City Council shall not be required for an adversely affected party to exhaust the party’s administrative remedies.

2. A final decision of the Planning Commission may be appealed to the City Council.

3. A decision of the City Council may only be appealed to the District Court.

(Ord. No. 661, Revised, 04/10/1990; Ord No. O-01-0021, Amended 06/12/2001; Ord. No. O-06-0036, Amended 12/12/2006)

B. An application for appeal to the City Council must be filed in the office of Development Services within thirty (30) days after the date of the decision being appealed. Appeals to the Board of Adjustment shall be made pursuant to the procedure outlined in CHAPTER 2 of the City Code. An adversely affected party shall present to the appeal authority every theory of relief that it can raise in District Court.

(Ord. No. 661, Revised, 04/10/1990; Ord No. O-01-0021, Amended 06/12/2001; Ord. No. O-06-0036, Amended 12/12/2006)

C. The owner of private property whose property is subject to a physical taking or exaction by the City as part of a land use application may appeal the City’s decision within 30 days after the decision is made. A decision regarding a proposed taking or exaction shall be deemed final and ripe for appeal when approved by the Development Review Committee (DRC). The Planning Commission shall hear and approve or reject the appeal within 14 days after it is submitted. If the Planning Commission fails to hear and decide the appeal within 14 days, the decision of the DRC is presumed to be approved. A property owner’s failure to appeal the action of the City does not constitute a failure to exhaust available administrative remedies. The Planning Commission shall approve the decision of the DRC if it finds that:

1. An essential link exists between a legitimate governmental interest and the exaction; and

2. The exaction is roughly proportionate, both in nature and extent, to the impact of the proposed development.

(Ord. No. 661, Revised, 04/10/1990; Ord No. O-01-0021, Amended 06/12/2001; Ord. No. O-06-0036, Amended 12/12/2006)

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More background documents and legal documents:

Original legal complaint, including neighborhood pictures
Additions to complaint after further research

City reasons for minimizing homeowner solar panel installations
Power company reasons for minimizing homeowner solar panel installations

Orem Solar Panels

Tuesday, January 8, 2019

News -- first round of mailings

Saturday, January 5, 2019

Grounds for Complaint