Board of Appeals seeks outside counsel to clarify enforceability of conditional-use conditions

On Nov. 7, 2024, the Board of Appeals voted to seek independent legal counsel to clarify which zoning or conditional-use conditions are legally enforceable after staff reported an outstanding landscaping requirement tied to Case 523.

Tim Borsier, director of planning, told the board that Zelman Funeral Home required conditional-use approval when it moved into the commercial district and that renovations took about 18 months. He said that when the project finished “condition number 2 hadn’t been met yet. There was no landscaping plan done... that condition wasn't valid or it wasn't enforceable,” and requested an independent attorney review to ensure staff and the board understand what conditions the city can legally require.

Board members said they supported getting legal guidance. One member moved “that we seek counsel to help us better understand our roles and positions within the Board of Appeals,” and another seconded the motion. The motion was carried by voice vote; two “aye” responses were recorded on the transcript and no opposing votes or abstentions were recorded.

Borsier said the aim is to avoid giving incorrect guidance in staff reports and to ensure the city treats applicants fairly while avoiding future enforcement problems. He also noted that, under state law, the Board of Appeals has the ability to request experts.

The board asked staff to forward the request to the administration so the city can determine whether to use outside counsel or another expert. The transcript does not record any firm timeline or details about counsel selection, fees, or scope of the review.

The board did not take further enforcement action on the Zelman Funeral Home conditions during the Nov. 7 meeting; staff will report back after counsel or legal guidance is identified.