Agenda Item Title:
Title
Code Interpretation for Building Height
3351 E 9980 S
[Community #29, The Dell]
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Presenter:
Melissa Anderson, Zoning Administrator
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Description/Background:
The applicant Dave Hunt, owner of the property at 3351 E 9980 S, has requested a code interpretation related to “Building Height” in accordance with Title 21, Land Development Code. Chapter 1, Organization, Section 6, Interpretation. (Section 21-1-6). The applicant’s request for further interpretation by the Planning Commission is included with this report as Exhibit “A”. Specifically, the applicant requests the Planning Commission make the following interpretation: “the building height of a single-family dwelling with a flat roof is measured to the coping of the dwelling’s roof (including its perimeter parapet), and does not include a rooftop enclosure that (a) contains only a stair, an elevator hoistway and overrun, the lobby used to access them, and elevator or mechanical equipment; (b) contains no habitable or occupiable space; (c) occupies no more than one-third of the roof area; and (d) extends no more than 18 feet above the roof deck.”
On July 7, 2022, the property owner Dave Hunt submitted for a new home to be built at 3351 E. 9980 S. The plans indicated a home that was too tall and would not comply with the maximum 35-foot height limit. There were also issues relating to meeting setbacks on the site plan and design issues with the grading plan that was also required for properties within the Sensitive Area Overlay Zone. There were several review cycles and design iterations before the city was finally able to approve plans for the home that met all the city code requirements.
A revised plan was approved on October 24, 2023, and permit was issued on March 3, 2024, with a condition that "a full survey of grading and structure before occupancy can be obtained. Survey must meet requirements of the approved grading plan and house plan." That plan reflected reduced floor to ceiling heights across all levels in order to have a fourth-floor roof top space fit under the maximum building height. During construction, the home was not built according to the approved plans as was verified upon receiving a survey from the applicant.
The property owner petitioned the city to allow for temporary occupancy of the home. On February 6, 2026, the city and property owner entered into an agreement to allow for temporary occupancy subject to conditions. The agreement allowed the owner to pursue options to bring the home into compliance; either through a proposed amendment to city code, or through modifications made to the home. The agreement requires the owner to commence renovation before July 1, 2026 (which would require an approved building permit for the proposed renovations) and complete the improvements required to meet city code by December 31, 2026. To date, the city has not received a building permit application to meet the city's building height requirement.
In seeking an administrative solution to this issue, the applicant applied to amend the city code to change the method by which building height is measured on steep slopes in the Sensitive Area Overlay Zone (case #CA02132026-0007114). On June 4, 2026, the Planning Commission held a public hearing on the proposed code amendment and forwarded a negative recommendation to the City Council. On July 7, 2026, the proposal was presented to the City Council, and the item was tabled to allow the applicant more time to explore other options. On September 29, 2026, the code amendment was scheduled for consideration by the City Council at their regularly scheduled meeting, but the applicant withdrew the proposal prior to that meeting, and the case was closed.
Following these proceedings, the applicant submitted a request for an official code interpretation related to building height to the Community Development Director on October 15, 2026 (see Exhibit “B”). The Community Development Director is charged with the responsibility of interpretation and enforcement of the Land Development Code (Sec. 21-3-2). As such, the Community Development Director responded with a written code interpretation on October 26, 2026 (see Exhibit “C”). The city and applicant are now seeking further interpretation by the Planning Commission, in accordance with Section 21-1-6, Interpretation of the Land Development Code.
Please refer to the attached staff report and all exhibits for details about the proposal.
Recommended Action and/or Suggested Motion:
Recommendation
Staff recommend that the Planning Commission deny the proposed interpretation of building height as shown in Exhibit “A”, based on the following findings:
Findings:
1. The city and applicant are requesting a further interpretation by the Planning Commission related to “Building Height,” in accordance Section 21-1-6 of the Land Development Code.
2. There is one building constructed on the subject lot. The building includes an elevator, stair and lobby that are covered by a roof. The highest point of a building is the point to which the building height is measured. In this case the highest point of the building is the roof covering the elevator, stair and lobby. The applicant’s interpretation of building height would allow the building to exceed the maximum height of 35 feet.
3. The 35-foot standard for maximum building height (measured to the peak of the roof) in residential zoning districts does not provide exceptions for rooftop enclosures, stairways, elevators and/or lobby access (Sec. 21-20-2(a).
4. The definition of “building” is the dwelling unit of which the stair, elevator and lobby are included elements.
5. A rooftop enclosure with stairs, elevator and lobby are all elements of the building that must be included when determining building height.
6. The applicant’s prescriptive interpretation of building height is contrary to the plain language of the code and inconsistent with how the city applies the building height standards in residential zoning districts.
7. The interpretation of building height proposed by the applicant includes exceptions that are unsubstantiated by the existing code and exceed the administrative authority of city staff without a code amendment approved by the City Council.
8. The proposed interpretation of building height does not encourage appropriate development standards in residential zones for the reasons cited in this report and should be denied.