Must boards of adjustment require building permits to establish nonconforming uses? Thompson v. Logan City Explained

In Thompson v. Logan City, the Utah Court of Appeals clarified the evidentiary requirements for establishing legal nonconforming uses, ruling that boards of adjustment need not base their findings exclusively on building permits.

Background and Facts

The Lucherinis owned a home with a basement apartment that was built in 1960 when multi-family dwellings were permitted. After the City rezoned the area to single-family residential in 1970, the City discovered the basement apartment during a 2006 inspection. The Lucherinis applied for legal nonconforming status, presenting evidence including expert testimony about original construction, witness testimony from the builder’s son, and utility records showing two meters. However, the original building permit from 1960 was not available because the City’s records only went back to 1963.

Key Legal Issues

The central issue was whether Utah Code section 10-9a-802(2)(b), which requires building permits for construction, mandates that boards of adjustment must find that a multi-family building permit was issued to establish prior legality of a nonconforming use. The district court interpreted this statute as requiring an express finding of building permit issuance.

Court’s Analysis and Holding

The Court of Appeals reversed, finding the district court misinterpreted section 10-9a-802(2)(b). The court explained that this section pertains to enforcement of land use ordinances and remedying violations, not to evidentiary requirements for boards of adjustment. The statute does not restrict the type of evidence boards may consider when determining whether a nonconforming use was lawful prior to zoning changes. Given the City’s failure to preserve adequate building permit records pre-1963, the Board properly exercised its discretion in considering other evidence of the apartment’s original legal construction.

Practice Implications

This decision provides important guidance for land use appeals. Practitioners should gather comprehensive evidence of original construction and use, including expert testimony, utility records, and witness accounts, rather than relying solely on building permits. The ruling also emphasizes that municipalities bear responsibility for inadequate record-keeping, with ambiguities in land use records construed against the municipality.