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Parties: Providence City and Sandra and Chris Checketts
Issued: March 28, 2011
A local government has discretion to determine if the requirements of an ordinance have been met. A use that was not permitted cannot qualify as nonconforming, even if it has been allowed to continue. Local governments have broad discretion over enforcement, and lack of enforcement in the past does not excuse a violation.
Advisory Opinion Requested by: Providence City
Craig J. Carlston, City Attorney
Local Government Entity: Providence City
Applicant for the Land Use Appeal: Sandra and Chris Checketts
Type of Property: Residential Lot
Date of this Advisory Opinion: March 28, 2011
Opinion Authored By: Elliot R. Lawrence, Attorney,
May a granite countertop business be considered light manufacturing under a City's ordinances?
When does a use qualify for nonconforming status?
Is a local government estopped from enforcing zoning and license ordinances because of building permits or because of business licenses that were erroneously issued?
When does enforcement of local ordinances constitute a taking of property rights under the U.S. and Utah Constitutions?
The City has discretion to determine that the business may be approved as a conditional use under the city's current ordinances allowing light manufacturing as a home business. Even though the business may not have been allowed under prior ordinances, it can still be approved as a conditional use, if the City agrees that its ordinances have been met. Combining two lots, even in an unusual configuration, may satisfy a requirement that a home business be located on the same property as a residence. The City's ordinances do not limit the shape or configuration of a parcel, so even an unusual configuration may be considered a lot, provided that other requirements, such as setbacks, etc. can be met.
In order to qualify for nonconforming use status, a land use must have been allowed or permitted when it was undertaken, but then became illegal due to an zoning ordinance change. A use that was not allowed at the time it was established cannot become a nonconforming use, even if its existence was acknowledged by the City. Nonconforming status arises from zoning regulation, not licensing ordinances. A change in a health and safety ordinance, including business license regulations, does not necessarily entitle a property owner to claim nonconforming use status.
A local government is not estopped from enforcing its zoning and licensing ordinances because of valid building permit or erroneous business licenses. Approval of a building permit does not constitute an act sufficient to justify reliance by a property owner that a particular use was allowed. In addition, a local government does not forfeit the right to enforce its ordinances, even if it issues business licenses in error.
Finally, enforcement of zoning and licensing ordinances does not constitute a taking of a property interest, unless the regulation is so onerous that it becomes the functional equivalent of a physical appropriation of the property. In general, regulation of land use and economic activity is not the functional equivalent of an appropriation of property rights. Additionally, a property owner must show complete loss of economic value to demonstrate a taking under the Lucas decision.
A request for an advisory opinion may be filed at any time prior to the rendering of a final decision by a local land use appeal authority under the provisions of Utah Code Ann. § 13-43-205. An advisory opinion is meant to provide an early review, before any duty to exhaust administrative remedies, of significant land use questions so that those involved in a land use application or other specific land use disputes can have an independent review of an issue. It is hoped that such a review can help the parties avoid litigation, resolve differences in a fair and neutral forum, and understand the relevant law. The decision is not binding, but, as explained at the end of this opinion, may have some effect on the long-term cost of resolving such issues in the courts.
A request for an Advisory Opinion was received from Craig J. Carlston, Providence City Attorney on January 18, 2011. A copy of that request was sent via certified mail to Sandra and Chris Checketts, in care of their attorney, Christopher L. Daines. The Checketts submitted a response to the Office of the Property Rights Ombudsman, which was received on March 7, 2011.
Request for an Advisory Opinion, including attachments, filed January 18, 2011 with the Office of the Property Rights Ombudsman by Craig J. Carlston
Response from Sandra and Chris Checketts, received on March 7, 2010.
Custom Countertops Website, www.granitetopsofutah.com.
Sections from the Providence City Code, including the former language of the Code.
Sandra and Chris Checketts ("Checketts") own two lots on East Canyon Road in Providence. The Checketts reside in a home located on one lot (Lot Number 1, or the "Home Lot"), and they built a large garage or storage building on the other lot (Lot Number 5, or the "Business Lot"). The two lots are not contiguous, and are separated by three other lots with homes. The address for the Home Lot is 990 East Canyon Road, and the Business Lot's address is 920 East Canyon Road. The area is generally rural in character, with little development to the rear of the properties.[1] The Checketts moved into their home prior to 1997.
In 1997, the Checketts applied for a permit to construct a building on the Business Lot. In their application, they stated that the building would be used for "storage," and its area would be 30 x 165 feet (4,950 square feet).[2] In June of 2004, the Checketts applied for a permit to construct a 900 square-foot "Garage Addition" extending from the side of the existing building.[3] The application states that the purpose of this addition was for "storage." This permit received "Planning Approval" and "Building Official Approval." The permit also includes this statement: "Approved as a detached accessory use in the SFT zone as per PLC 10-8-1."[4] Despite these approvals, it appears that the addition was not built at that time. In November of 2005, however, the Checketts obtained a permit for the addition. This permit stated that the intended use of the new structure was "commercial." The permit received "Zoning Approval" and "Building Official Approval." The permit also referenced the 2004 application, although it stated that it was a "new application."[5]
In the meantime, the Checketts started a business, "Custom Countertops," sometime in 2003. As the name implies, the business involves building and installing countertops. According to the Checketts, the business initially consisted of constructing the countertops at the homes where they were installed. The Checketts ran the business out of their home, using the building on Lot 5 primarily for storing materials and tools.[6] As the business grew, granite countertops became more popular, and the Checketts began using the storage building to cut and shape counters for delivery to homes.[7] The 2005 addition was designed and built specifically to accommodate granite slabs, and was an investment in the business.[8] The floor of the addition is sloped, to drain cutting fluids from the work area. The addition houses a lift system to help manipulate the granite slabs while they are being prepared, as well as large saws and other equipment for stone cutting and polishing. A portion of the building is used as a showroom for the public, and there are parking spaces for 3-4 cars. Based on photographs at the Custom Countertops website, some of the granite slabs are stored outside, but it appears that none of the cutting or shaping is done outdoors. The building has white siding, and there is some landscaping in the front.
The City granted business licenses to the Checketts from 2003 to 2008. The 2003 license application was for a home occupation license, and that the business activity was to "receiv[e] orders by fax or phone for countertops. Assembles, delivers, and installs tops on site in homes . . . ." The 2004 application stated described the business activity as follows: "[manufacture] and install solid surface counter tops." The 2005 building addition allowed the Checketts to intensify the activity on Lot 5, and the City renewed their business licenses annually through 2008.[9] The Checketts state that they currently have one full-time and one part-time employee, in addition to family members who work for the business.
In the summer of 2008, the City received complaints from neighbors about Custom Countertops. The legality of the business and its suitability in a residential neighborhood were questioned.[10] In July of 2008, the City sent a letter to the Checketts, informing them that because their business was not a permitted home business, the City would not renew their business license for 2009. In a letter dated September 12, 2008, the City's attorney explained that Custom Countertops could not be considered a valid home business for two reasons: (1) The business was conducted on a separate parcel than the Checketts' home; and (2) The type of business was not permitted in a residential neighborhood.
In 2003, when Custom Countertops was first established, the City's Home Business Ordinance required that a home business be located on the homeowner's land. The ordinance also prohibited equipment "not normally found in a residential neighborhood." The ordinance was amended in 2010. The equipment prohibition was removed, and the location requirement was altered to require that the business activity be on the same parcel as the home.[11]
After negotiations with the City, the Checketts proposed that they be given sufficient time to sell their home on Lot 1 and build a new home on Lot 5. This would satisfy the City's first objection, because both the home and the business operation would be on the same lot.[12] The City eventually extended the time to sell the home through December 31, 2010, but the Checketts have been unable to find a buyer.[13] In the summer of 2010, the Checketts state that they acquired one-foot wide strips across the lots between Lots 1 and 5, and so the Home and Business Lots could technically become one parcel.[14]
The Checketts answer the City's second objection by claiming that their activity is a legal home business, because they are "craftsmen," which is a permitted home business under § 3-4-5(O) of the Providence City Code. As alternatives, they claim nonconforming use status for the business from 2003; or they argue that the City is estopped from enforcing its zoning and home business ordinances because of building permit and business license approvals. Finally, they argue that enforcing the City's ordinances at this point constitutes a taking of their property interests, entitling them to compensation under the U.S. and Utah Constitutions.[15]
I. The City Could Approve and Regulate the Checketts' Business as a Conditional Use.
A. The Business Could Possibly be Approved as a Conditional Use
Because the City's land use ordinance now allows "light manufacturing" as a conditional use in residential zones, the Checketts' business could possibly be approved with conditions. The City's current land use chart includes "light manufacturing" as a conditional use in the SFT zone, provided it is approved as a home business as well as a conditional use. See Providence City Code, § 10-6-1, footnote (Land Use Chart). The City Code stipulates that light manufacturing
[s]hall include manufacturing and assembly processes that ordinarily do not create noise, smoke, fumes, glare, or odors that exceed the requirements of Title 3 Chapter 4 and Title 4 of [the City Code]. Light manufacturing includes processes which do not require extensive floor area or land areas (must comply with zoning requirements for the zone that are listed in other chapters . . . .)
Id., § 10-1-4 (Definition of "Light Manufacturing"). Since the use is conditional, the City may impose conditions to mitigate the detrimental impacts of the Checketts' business.
The City has discretion to determine that the Checketts' business satisfies the definition of "light manufacturing, so that it can be considered as a conditional use. This Opinion does not take a position on whether or not the City should so determine, but notes that such an interpretation is probably reasonable, and it is within the City's discretion to adopt that reasoning.[16] If the City chooses to allow the Checketts' business as a conditional use, it must also adopt standards to guide the conditions that can be imposed.
(1) A land use ordinance may include conditional uses and provisions for conditional uses that require compliance with standards set forth in an applicable ordinance.
(2) (a) A conditional use shall be approved if reasonable conditions are proposed, or can be imposed, to mitigate the reasonably anticipated detrimental effects of the proposed use in accordance with applicable standards;
(b) If the reasonably anticipated detrimental effects of a proposed conditional use cannot be substantially mitigated by the proposal or the imposition of reasonable conditions to achieve compliance with applicable standards, the conditional use may be denied.
Utah Code Ann. § 10-9a-507.
This statute distinguishes between "conditions" and "standards." A condition is imposed on a use to control or mitigate a detrimental effect. Standards establish the levels of performance to be accomplished by the conditions. Standards may be viewed as goals, and conditions as the means to achieve those goals. For example, if noise is a detrimental effect of a particular use, a local government may impose conditions to control or lessen the noise. The standard would be the acceptable level of noise, as expressed in the local government's ordinances. The conditions imposed must be shown to reduce the noise to the levels established by the standard. In essence, the Utah Code requires local governments to determine acceptable levels of performance that can be applied to all conditional uses, before the uses are proposed.[17]
It is therefore possible that the Checketts' business may be approved as a conditional use. This Opinion defers that decision to the City, which has discretion to determine (1) if the Checketts' business should be considered "light manufacturing," and, if so, (2) what standards apply and what conditions to impose on the use.
B. The Requirements of the Home Business Ordinance Must Also be Met.
Along with considering the Checketts' business as conditional use, the City must also decide whether to approve it as a home business. A "Home Business" must meet these basic requirements:
A business conducted on land containing the primary dwelling or on an adjacent parcel owned by the same owner;
Business owner must be a resident of the primary dwelling;
May employ family members residing in the primary dwelling;
May employ no more than four (4) individuals that do not reside in the primary dwelling but work at the premises;
Provide sufficient parking and needed facilities for employees and customers completely and entirely on homeowner's land containing the primary dwelling or an adjacent parcel owned by the homeowner[;]
Does not change the aesthetic character of the area and zone;
No commercial display, other than an unlighted nameplate sign (see Chapter 15 [of Title 10]), which is two (2) square feet in area or less;
Must comply with Title 3 Chapter 5 of [the City] Code;[18]
Home businesses are subject to all licensing, inspections, laws and regulations, etc.
Providence City Code, § 10-4-1 (Definition of "Home Business"). There are additional requirements found in § 3-4-5, which also must be satisfied, along with any conditions that may be imposed.
A critical factor for home business approval is determining whether or not the Checketts' business is "conducted on land containing the primary dwelling." Since its inception, "Custom Countertops" has been conducted on two parcels, the Home Lot (Lot 1) and the Business Lot (Lot 5). The two lots are separated by other residential lots with homes. The Checketts acquired a one-foot wide strip across the rear of those other lots, and have proposed using that strip to join Lots 1 and 5 into one lot. Doing so, they argue, would satisfy the City's requirement that a home business be conducted on the same parcel as the primary dwelling.
The City has stated that it "will entertain" such a proposal, but did not commit to accepting the lot reconfiguration. Although the Checketts' proposal creates an unusually-shaped parcel, it, nevertheless, technically meets the definition of "lot" from the City Code:
A parcel of land occupied, or to be occupied, by a main building, or group of buildings (main and accessory), together with such yards, open spaces, lot width and lot area as are required by this Title and having sufficient frontage upon, or access easement to, a public street.
Id., § 10-1-4 (Definition of "Lot").[19] Nothing in this definition dictates a particular shape or configuration for a lot. This Opinion does not take a position on whether or not the proposed configuration satisfies the requirements for a home business. Ultimately, that decision is the City's.
The City may agree to accept the reconfigured lots as satisfying the home business ordinance if the lot consolidation is completed.[20] If so, and if the Checketts are able to comply with the other requirements for a home business, and if the City approves the business as a condtional use, the Checketts may be able to maintain their business lawfully at its present location. However, that depends on whether the City accepts the lot and the possibility of the business being a conditional use.
II Nonconforming Use is Not the Correct Analysis for This Situation.
Because it has not been shown that the Checketts' business was lawfully established, but would now be prohibited, analysis under nonconforming use statutes is not applicable. Property owners are entitled to nonconforming use status for a property use that
(a) legally existed before its current land use designation;
(b) has been maintained continuously since the time the land use ordinance governing the land changed; and
(c) because of one or more subsequent land use ordinance changes, does not conform to the regulations that now govern the use of the land.
Utah Code Ann. § 10-9a-103(32). Nonconforming use status allows a property owner to continue an established use even though the use has become prohibited. Id., § 10-9a-511(1).
A. The Business was Never Authorized as a Land Use, so it Cannot Qualify for Nonconforming Use Status.
The Checketts do not qualify for nonconforming use status because they have not shown that their business "legally existed" when it was first established. The City Code prohibited industrial or manufacturing uses in 2003, when the business began, and in 2005, when the business activity on Lot 5 intensified. The City's zoning ordinances in place in 2003-2005 did not allow any type of industrial or manufacturing uses in the SFT zone. These prohibited uses include "building maintenance and repair," "cabinet shop," "general contractor yard," "welding/machine shop," and "wholesale outlet/storage and sales." See Providence City Code, § 10-6-2 (former language effective in 2003 and 2005).[21] The Checketts' countertop business is an industrial or manufacturing use which could fit in any of these categories.[22] In fact, the Checketts' application for a business license in 2003 and 2004 described the business as "manufacture" or "assembly" of solid countertops. However, the classification assigned to the business is not important, because no industrial or manufacturing use was allowed in the SFT zone.[23] Since the use was not allowed, it could not have been "legally established" in 2003 or 2005. Therefore, the Checketts are not entitled to claim nonconforming use status, even if they began operations at that time.
As has already been discussed, the City's zoning ordinances have changed, and the SFT zone now allows "light manufacturing" as a conditional use home business. Ironically, the zone change is actually beneficial to the Checketts, because it provides a possible means to legitimize the land use rather than make it illegal. The ordinance change does not automatically make the business "legally established," because it is a conditional use, but it may become legal if it is approved by the City. Nevertheless, nonconforming use analysis simply does not apply to this situation, regardless of whether the conditional use is approved or not.
B. Changes to the City's Home Business Ordinance Do Not Entitle the Checketts to Nonconforming Use Status, Because the Changes do not Affect a Zoning Ordinance.
Both the City and the Checketts discuss changes to the City's home business licensing ordinance, and whether the Checketts are entitled to claim vested rights under that ordinance's former language.[24] The City explains that in 2005, the language of its home business ordinance provided that the business be entirely on the homeowner's land.[25] Since the Checketts owned both Lot 1 (the Home Lot) and Lot 5 (the Business Lot), their business arguably complied with that provision—it was entirely on "land belonging to the homeowner." That interpretation, however, has not been confirmed or accepted by the City. That ordinance has been changed, and now a home business must be located on the same parcel as the primary dwelling, or on an adjacent parcel owned by the homeowner. Since the Checketts' business is located on a separate and non-adjacent parcel, it does not conform to the current ordinance. The Checketts therefore argue that they are entitled to nonconforming use status because of the change to the Home Business Licensing Ordinance.[26]
Nonconforming use analysis would not apply even if it is accepted that the Checketts' business satisfied the prior requirement by being on "land owned by the homeowner" (and that is by no means settled).[27] The Home Business Licensing Ordinance is not a land use ordinance. Nonconforming use arises when an established legal land use becomes illegal because of a change to a land use ordinance. Licensing and other health and safety ordinances are not land use ordinances and thus do not implicate nonconforming use analysis. All land uses, including nonconforming uses, are subject to health and safety regulations meant to reduce or eliminate nuisances. Although health and safety regulations may change from time to time, the land use would still be allowed if the land use ordinance has not changed.[28]
Simply put, the Checketts' situation is not subject to nonconforming use analysis. In order to claim the rights afforded to nonconforming uses, there has to be a nonconforming use. If the use does not qualify for nonconforming status the statutes governing nonconforming uses do not apply. In 2003 and 2005, the City's land use ordinance prohibited manufacturing uses, including the Checketts' business, in residential zones. The use, therefore, could not have been "legally established," and is thus ineligible for nonconforming use status. Compliance with licensing ordinances and other health and safety regulations has little to do with whether a land use is legal or not.
III. Building Permits and Business Licenses Do not Estop the City From Enforcing its Zoning and Licensing Ordinances.
Past business licenses and building permits do not estop the City from enforcing its home business ordinance, because such approvals do not entitle a property owner to estop enforcement of zoning laws. Under the "zoning estoppel" doctrine, a property owner may claim entitlement to an otherwise-prohibited land use if the owner relied upon representations from a local government.
The [zoning estoppel] principle estops a government entity from exercising its zoning powers to prohibit a proposed land use when a property owner, relying reasonably and in good faith on some governmental action or omission, has made a substantial change in position or incurred such extensive obligations or expenses that it would be highly inequitable to deprive the owner of his right to complete his proposed development.
Western Land Equities v. City of Logan, 617 P.2d 388, 391 (Utah 1980).
The governmental acts relied upon by the Checketts do not estop the City from enforcing its zoning or home business ordinances. "To invoke the doctrine [the local government] must have committed an act or omission upon which the developer could rely in good faith in making substantial changes in position or incurring extensive expenses." Utah County v. Young, 615 P.2d 1265, 1267 (Utah 1980). The Checketts claim reliance on the following: (1) The 2005 building permit, which allowed them to build the addition to the storage building; and (2) Business licenses issued by the City from 2003 through 2009. However, the permit and business licenses do not warrant enough reliance to justify blocking enforcement of the City's zoning or licensing ordinances.
A. Business Licenses Granted by the City do not Estop Enforcement of Zoning and Licensing Ordinances.
In November of 2005, the City granted a building permit to construct an addition onto the building which had been built in 1997. The permit only approved construction of the addition, and cannot be construed as approving any sort of business activity. There is no question that the building was allowed under the City's zoning ordinance and that the permit was approved by the City, but the permit does not discuss or approve the installation of any equipment or the conduct of any business within that building.[29] Therefore, approval of the building permit in 2005 should not be construed as an act upon which the Checketts could reasonably rely as also granting approval for their business activities.
This conclusion is supported by a series Utah Supreme Court decisions explaining the zoning estoppel doctrine. In the first decision, the court maintained that "[o]rdinarily a municipality is not precluded from enforcing its zoning regulations, when its officers have remained inactive in the face of such violations." Salt Lake County v. Kartchner, 552 P.2d 136, 138 (Utah 1976). In Kartchner, a landowner was cited for violating setback ordinances.[30] The county's building inspectors became aware of construction on the property and notified the homeowner of the potential violation. Nevertheless, the owner continued construction, and the county took no action for several months. When the owner was finally cited for the setback violation (after construction was completed), he pointed to several similar violations on properties in the immediate area. The county admitted that there were several violations that had not been cited.[31] On appeal, the Utah Supreme Court held that it would be inequitable to enforce the requirement when there were so many other violations that had been ignored.[32] Under the unique circumstances of the case, the owner was allowed to keep the building.
A few years later, the court considered two cases involving construction in Utah County. The Checketts cited to the first, Utah County v. Young, 615 P.2d 1265 (Utah 1980). In that case, the property owner obtained a building permit to construct a barn in an agricultural area.[33] He intended to use the barn for a commercial auction business, which was prohibited under the county zoning ordinances. The building was designed with an auction block, bleachers, public restrooms, and commercial-type wiring. Id., 615 P.2d at 1265-66. After construction was completed, the county denied the owner's application for a business license, because the area was not zoned for commercial activities.
On appeal, the owner argued that the county was estopped from enforcing its zoning and licensing ordinances. He claimed that the county was aware that he intended to operate commercial business in the barn, and that by approving the building permit, he was induced to believe that the county approved the commercial use, and so he proceeded with construction. The court rejected his argument, because there was little evidence that the county had misled or induced him to invest in the construction.[34] The court also held that the owner had a duty to investigate the county's ordinances, and that he could not claim ignorance of the restrictions. The court expounded on the type of reliance necessary to claim zoning estoppel:
The action upon which the developer claims reliance must be of a clear, definite and affirmative nature. If the claim be based on an omission of the local zoning authority, omission means a negligent or culpable omission where the party failing to act was under a duty to do so. Silence or inaction will not operate to work an estoppel. Finally, and perhaps most importantly, the landowner has a duty to inquire and confer with the local zoning authority regarding uses of the property that would be permitted.
Id., 615 P.2d at 1267-68.[35] The property owner could not prove that he had relied upon an act or omission of the county, so his argument that he was entitled to a business license under a theory of zoning estoppel failed.
About one year after the Young decision, the court issued another zoning estoppel decision, Utah County v. Baxter, 635 P.2d 61 (Utah 1981). In Baxter, the property in question had two structures, a restaurant and a small home. Both structures had been built many years earlier, but both were prohibited under the zoning ordinances in place at the time.[36] In 1978, the restaurant burned down. The county allowed the building to be rebuilt, even though it was a noncomplying structure. The property owner and a partner reconstructed and reopened the restaurant. In the meantime, the property owner also applied for a permit to remodel the home, which was granted by the county. The owner and her partner had a falling out over the restaurant, so she remodeled the home to serve as a restaurant and tavern, using the permit granted by the county.[37] The county later denied a business license to operate a restaurant or tavern, although it accepted an application and fee for a beer license. For a short period, the property owner sold beer in the remodeled home.[38] The property owner appealed the denial of the business license.
On appeal, the property owner argued that the county should be estopped from enforcing its zoning and licensing ordinances because she claimed that she told the county that she planned to use the home for a commercial business. In addition, the county had issued a beer license, albeit mistakenly. Id., 635 P.2d at 65. The court rejected this estoppel argument, holding that there was no evidence that the owner had been induced or misled by any actions by the county. "[T]o successfully state a defense of equitable estoppel in a zoning case, exceptional circumstances must be present such as the intentional discriminatory application of the ordinance." Id.
The three cases just discussed provide invaluable guidance for the situation faced by the Checketts and Providence City. The Checketts have not shown the type of extraordinary circumstances necessary to invoke zoning estoppel. Like the property owner in Young, the Checketts obtained a permit to construct an addition to a building. The zoning ordinances allowed the addition, and its construction is not necessarily at issue. However, the permit did not approve any business activities in the building, and the Checketts cannot argue that the City should have been aware of their intent to use the addition for commercial purposes.[39] The Young and Baxter decisions lead to the conclusion that the Checketts cannot claim reliance on the City's approval of the 2005 building permit that induced or misled them into believing that the business activity would be allowed.[40]
B. The City is Not Estopped From Enforcing its Licensing and Zoning Ordinances by the Business Licenses Issued to the Checketts.
The business licenses issued to the Checketts also do not operate to estop enforcement of the City's ordinances. There is no question that the City issued business licenses to "Custom Countertops" from 2003 through 2008. The 2003 and 2004 license applications list the Checketts home (on Lot 1) as the business address, and they both list assembly or manufacture of solid countertops as the business activity.[41] From 2005 through 2008, the business licenses were automatically renewed upon payment of the business license fee.[42]
These approvals, however, are not acts or omissions which justify good faith reliance by the Checketts sufficient to estop the City from enforcing its zoning and licensing ordinances. At its core, the estoppel doctrine grants rights to a property owner based on tacit or implied approval of a particular use, coupled with detrimental reliance on that approval. It follows that the governmental entity must have some awareness or knowledge of the use in order to warrant reliance on an act or omission implying approval.[43] Automatic renewal of a business license is not sufficient awareness or knowledge to justify reliance by a property owner.
It would be unreasonable to conclude that a clerk or a ministerial officer having no authority to do so, could bind [a local government] to a variation of a zoning ordinance duly passed, to which everyone has notice by its passage and publication, because a ministerial employee erred in characterizing the type of property.
Alta v. Ben Hame Corp., 836 P.2d 797, 803 (Utah Ct. App. 1992) (quoting Morrison v. Horne, 363 P.2d 1113, 1114 (Utah 1961)).
In Alta v. Ben Hame, the Utah Court of Appeals rejected a property owner's estoppel argument based on business licenses which had been granted. The property owner had leased a home for short term rentals for some time, even though such rentals were prohibited by the town's zoning ordinances. For three years, the town granted the owner a business license for a "lodging facility," before the error was discovered. The court of appeals held that the licenses erroneously issued by the town's clerk did not justify reliance sufficient to estop enforcement of the town's ordinance. Id. The court also noted that "failure to enforce zoning for a time does not forfeit the power to enforce." Id., See also Kartchner, 552 P.2d at 138.
Like the business owner in Alta v. Ben Hame, the Checketts were granted business licenses that the City now says they should not have received. Each year, the license was automatically renewed, with little or no investigation into the nature or scale of the business.[44] As the Court of Appeals explained in Alta v. Ben Hame, the City has not forfeited the right to enforce its zoning or licensing ordinances because it mistakenly issued business licenses. To conclude, the Checketts cannot estop the City because of the building permits or the business licenses.
IV. The City's Regulation of the Checketts' Property Does Not Constitute a Taking.
The City's regulation of the Checketts' property and business activity do not constitute a taking, because reasonable regulation of property use and economic activities is permissible. Both the Federal and Utah Constitutions provide that private property shall not "be taken for public use, without just compensation." U.S. Const. amend. V.[45] The legal doctrine of a property takings includes regulation that is "so onerous that its effect is tantamount to a direct appropriation or ouster—and that such 'regulatory takings' may be compensable . . .." Lingle v. Chevron U.S.A. Inc., 544 U.S.528, 537 (2005).[46] However, it is difficult to determine when a regulation is that onerous. "In Justice Holmes' storied but cryptic formulation, 'while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.' The rub, of course, has been—and remains—how to discern how far is 'too far.'" Id., 544 U.S. at 537-38 (quoting Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922)).
A set formula for analyzing regulatory takings has not been created, except in limited circumstances.[47] In the absence of a set formula, takings jurisprudence "aims to identify regulatory actions that are functionally equivalent to the classic taking in which government directly appropriates private property or ousts the owner from his domain." Lingle, 544 U.S. at 539.[48] The Utah Supreme Court has held that property may be regulated, even if the regulation impinges on an individual's right to enjoy and use property.
[T]he exercise of proper police [i.e., health and safety] regulations may to some extent prevent enjoyment of individual rights in property or cause inconvenience or loss to the owner, [but that] does not necessarily render the police law unconstitutional, for the reason that such laws are not considered as appropriating private property for a public use, but simply as regulating its use . . ..
Colman, 795 P.2d 627-28 (quoting Bountiful City v. DeLuca, 292 P. at 199-200). Or, stated more directly by the Utah Supreme Court: "[A] landowner cannot complain because he is inconvenienced in the use of his property, where such inconvenience arises out of the proper enforcement of the police power to protect the public health, and where such enforcement does not amount to a taking or destruction of his property." Colman, 795 P.2d at 628 (quoting Salt Lake City v. Young, 145 P. 1047, 1051 (Utah 1915)).
The guidance provided by both state and federal cases mandates a very high standard that must be met before a regulation may require compensation as a taking. Thus, it does not appear that the City's regulation of the Checketts' property and business is the functional equivalent of a direct appropriation of the property. The City is asserting its right to regulate uses on property to promote the health, safety, and welfare of the public. The City's zoning and licensing regulations may limit the Checketts' use of their property, but that limitation is not the functional equivalent of an appropriation. Even with the City's regulation, the property could be put to any number of uses, including business activities.[49]
"Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law." Pennsylvania Coal, 260 U.S. at 413. In other words, property uses and economic activities are subject to reasonable regulation, and such regulation does not constitute a taking of private property. The City has reasonable regulations of land use and business activity, intended to promote the health and welfare of the public. Although those regulations limit, to an extent, the uses and activities on the Checketts' property, those limits are not a taking of any property rights. In conclusion, therefore, the Checketts have simply not shown that the City's regulation constitutes a compensable taking.
Because the City's ordinances allow light manufacturing in residential zones, the countertop business may be approved as a conditional use home business. The City may determine that the business is light manufacutring, and that the joinder of the two lots satisfies the requirement that a home business be conducted on the same parcel as the residence.
The business cannot qualify for nonconforming use status, because it was not allowed in residential zones to begin with. Even if licensing ordinances change, if a use was not allowed, it cannot claim nonconforming use status. The use may now be approved as a conditional use, and be a valid home business.
A valid building permit does not justify reliance estopping the City from prohibiting a particular use. Estoppel only arises when a property owner can claim reliance on an act implying that a use would be approved. The City is also not estopped from enforcing its ordinances due to business licenses issued in error.
Finally, the City's enforcement of its zoning and licensing ordinances does not constitute a taking of private property, because the regulation is not the functional equivalent of a physical appropriation of the property. The City may enforce its reasonable regulations without implicating the Takings Clause. The property owner has not shown a complete loss of economic value, and thus cannot claim a taking under the Lucas decision.
[1] Lot 5 is approximately .81 acres. There is some landscaping in the front yard.
[2] The height of the building was not indicated, but it appears to be about the same as nearby homes.
[3] In 1999, the Checketts constructed a "lean-to" on the side of the building for hay storage. That structure was later removed.
[4] Providence City Permit Number 2004-74 (June 4, 2004). "PLC" evidently refers to the Providence Land Code.
[5] Providence City Permit Number 2005-229 (November 14, 2005).
[6] The Checketts still use their home as the "headquarters," or offices of the business.
[7] The Checketts's response implied that the business incorporates other countertop materials, but did not state how much of their business is granite countertops, which requires specialized equipment. It appears that Custom Countertops also works in other types of stone, and is not exclusively limited to countertops.
[8] The Checketts state that the 2005 addition cost more than $130,000.00, plus uncompensated labor provided by Mr. Checketts himself.
[9] The licenses were renewed upon payment of the license fee. It is not clear whether the City required additional information for the licenses, or if there was any inspection of the premises.
[10] The complaint also identified noise, dust, odors, late-night operations, traffic, safety concerns, environmental damage, and visual appearance.
[11] The present language of the code allows for home businesses on the same parcel, or on an adjoining parcel owned by the same owner. Providence City Code § 10-1-4 (Definition of Home Business)
[12] Lot 5 is large enough to accommodate both a home and the business.
[13] The City issued annual business licenses through December of 2010.
[14] The Checketts admit that they have not obtained subdivision approval for the lot changes.
[15] These arguments will be explored more fully in the Analysis section.
[16] It is noted that the City Code expressly prohibits "cabinet shop, general contractor yard, lumber yard, and welding/machine shop" in residential zones. The Checketts' business could be classified under any of these uses, particularly "cabinet shop." However, none of those uses are defined, and there is no reason to believe that the City could not reasonably apply the definition of "light manufacturing" to the Checketts' business.
[17] The standards should be objective, and have a reasonably reliable basis. The procedure established by the Utah Code envisions standards that apply to all similarly-situated conditional uses, rather than "inventing" standards on a case-by-case basis. Local governments would be wise to adopt standards sooner rather than later.
[18] That is how Section 10-1-4 reads. However, Chapter 5 of Title 3 governs "Canvassers, Peddlers, and Itinerant Merchants." It is possible that the correct cite is to Chapter 4, "Conditional Businesses." That chapter includes § 3-4-5, which is specifically applicable to home businesses.
[19] It is not known if the combined lot meets the yard, open space, width, area, and frontage requirements for the zone. The one-foot wide strip may not satisfy width and setback requirements, but those requirements could possibly be varied.
[20] The Checketts submitted deeds showing that they had acquired the strips across the neighboring properties Creating those strips is a subdivision of the affected lots, which must be approved by the City, along with the lot consolidation. See Utah Code Ann. § 10-9a-603.
[21] The City provided a copy of the former section 10-6-2, which includes a chart of permitted, conditional, and prohibited uses for all zones.
[22] Section 10-6-2(A) provides a procedure to propose and approve land uses not specifically listed.
[23] The City code allowed several types of professional offices and retail uses, but all must comply with the City's home business regulations.
[24] A nonconforming use is essentially a vested right.
[25] The City did not provide the exact language of the former ordinance.
[26] Both the Checketts and the City focus on the former language prohibiting equipment not ordinarily found in residential areas. However, that language has been repealed, and could no longer be applied to prohibit the Checketts' business.
[27] It is not entirely clear that such an interpretation is reasonable. The language of the Home Business Ordinance includes reference to business uses being "incidental" to a residential use, that the "residential character" of a neighborhood be preserved, and that uses are allowed in "accessory" buildings. Given these references, and the ordinance's overall intent to allow and regulate home-based businesses, it is reasonable to interpret the provision about a home business being located entirely on the homeowner's property as referring to activity on the same property as the residence. See Mountain Ranch Estates v. Utah Tax Comm'n, 2004 UT 86, ¶ 11, 100 P.3d 1206, 1209 ("[t]he plain language of the statute [should be read] as a whole, . . . [interpreting] its provisions in harmony with other statutes in the same chapter and related chapters.") A business cannot be "incidental" to residential use if the residence is on a separate parcel. Moreover, restricting the meaning of the prior language to businesses located on the same parcel as residences avoids the absurd result of making nearly any business a home business simply by showing that a business is located on land that is also owned by a homeowner. See Millet v. Clark Clinic Corp., 609 P.2d 934, 936 (Utah 1980) ("[I]nterpretations are to be avoided that render some part of a provision nonsensical or absurd.") Ultimately, of course, the City may decide how to interpret its ordinances.
[28] It is important to recognize the distinction between an ordinance which allows a land use, and one which merely regulates that use. If a land use is prohibited, compliance with health, safety, or licensing regulations does not make it "legal." Conversely, if a land use is allowed, noncompliance with such regulations does not make it illegal. See e.g., Vial v. Provo City, 2009 UT App 122, ¶ 16, 210 P.3d 947, 951 (Noncompliance with building permit requirements has little to do with whether a land use is legally established.)
[29] The permit approved in June of 2004 stated that the addition was "approved as [a] detached accessory use in the SFT zone as per PLC 10-8-1." The Checketts did not construct the addition approved by the 2004 permit, but the 2005 permit was for the same addition.
[30] The construction at issue enclosed an existing carport, and was undertaken without a building permit.
[31] The front yard setback was supposed to be 30 feet. The county acknowledged that several property owners had violated that standard, and that the average front yard in the area was 26 feet.
[32] Kartchner is thus based more on the laches doctrine (i.e., failure to enforce similar violations), rather than zoning estoppel. The particular facts of Kartchner also supported the conclusion, because of the inequity involved.
[33] The area was zoned for agricultural uses only. There was nothing prohibiting construction of a barn on the property, but the proposed business use was prohibited. See Young, 615 P.2d at 1265-66.
[34] The court specifically noted that the structure was permissible, it was only the commercial use that was prohibited. Id., 615 P.2d at 1267.
[35] See also Stucker v. Summit County, 870 P.2d 283, 290 (Utah Ct. App. 1994) (Opinion of local government official or employee insufficient to constitute an "act" of the government entity.)
[36] Both structures were considered nonconforming or noncomplying, and the restaurant in particular was a nonconforming use. Baxter, 635 P.2d at 62-63.
[37] The remodeling plans showed a kitchen, living room, bedrooms, and closets. The decision states that the permit identified the use as a single family residence. Id., 635 P.2d at 63.
[38] The county revoked the beer permit, and refunded the license fee. Id., 635 P.2d at 63.
[39] Like the property owner in Young, the Checketts were obligated to research the City's zoning ordinances for themselves.
[40] Unlike the property owner in Kartchner, the Checketts cannot claim that the City ignored similar situations on other properties.
[41] The 2004 license application described the business as: "Receives orders by fax or phone for countertops. Assembles, delivers and installs tops on site in homes mostly in the Cache Valley area." The 2005 application included this description: "Mfg [manufacture or manufacturing] and install solid surface counter tops."
[42] See Providence City Code, § 3-1-8(A): "Business licenses will automatically be renewed upon receipt of the renewal fee and proof of a valid professional license, if required."
[43] See e.g., Baxter, 635 P.2d at 65 (Estoppel may be invoked in exceptional circumstances).
[44] It is significant that the Checketts's business activity in 2003, when they first obtained a business license, was substantially different from the activities from 2005 through 2010. In 2003, the Checketts stated that the countertops were assembled at the homes where they were installed. Beginning in 2005, however, cutting and shaping granite slabs was performed on Lot 5. This is a substantial intensification of business activity that was not anticipated in the 2003 license application.
[45] See also Utah Const., art I, § 22: "Private property shall not be taken or damaged for public use without just compensation."
[46] See also Colman v .Utah State Land Board, 795 P.2d 622, 626-27 (Utah 1990) (Government may regulate property, but regulation may rise to the level of a taking); Bountiful City v. DeLuca, 292 P. 194, 201 (Utah 1930).
[47] A regulation that requires an owner to suffer permanent occupation of property is a compensable taking. See Loretto v. Manhattan CATV Corp., 458 U.S. 419 (1982). Complete deprivation of all economically beneficial use is also a compensable taking. See Lucas v. South Carolina Coastal Comm'n, 505 U.S. 1003 (1992). Permanently damaging private property may also be a taking. See Hamblin v. City of Clearfield, 795 P.2d 1133, 1136 (Utah 1990); Sanguinetti v. United States, 264 U.S. 146 (1924).
[48] See also Colman, 795 P.2d at 627 ("Only when governmental action rises to the level of a taking or damage under article I, section 22 [of the Utah Constitution] is the [government] required to pay compensation.")
[49] The Checketts argue that the City's regulation deprives them of all economically beneficial use of their property, and that the City's actions are "worse than the Lucas case." See Lucas, 505 U.S. 1003 (regulation which destroys all economically beneficial use constitutes a taking). Other than this assertion, however, the Checketts have provided no objective evidence that their property would have no economically beneficial value due to the City's regulation. It seems very unlikely that their property's value would be completely devastated simply because the City imposed some regulation on a certain type of business activity. Even if no business activity is allowed, the property still has value as a residential lot. Therefore, the Checketts cannot sustain a claim for the type of "total taking" envisioned by Lucas.


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You are here: Home / New Releases / New releases 7/7/20
New releases 7/7/20
Trolls World Tour (animated feature, Anna Kendrick. Rotten Tomatoes: 69%. Metacritic: 51. From Ben Kenigsberg's New York Times review: "But it is dangerous to over-read 'Trolls World Tour,' which celebrates musical diversity — pushing back against pop music's appropriation of African-American artists' innovations — and whose multiculturalism is clearly intended in a spirit of inclusiveness and good humor. While the genre-bridging premise affords the film more variety and verve than its sugary predecessor, the movie, directed by Walt Dohrn, still gives you the sensation of being barricaded in a karaoke lounge where all the attendees have snorted Sweet Tarts." Read more…)
The Vanishing (action, Gerard Butler. Rotten Tomatoes: 85%. Metacritic: 64. From Jeannette Catsoulis' New York Times review: "As it turns out, it will be gold, not silver, that turns their heads in 'The Vanishing,' a middling good-guys-gone-bad thriller [and no relation to George Sluizer's ingenious 1991 shocker]. Inspired by the Flannan Isles mystery of 1900, when three keepers disappeared without trace, Joe Bone and Celyn Jones's script takes pains to differentiate the three leads." Read more…)
New Foreign DVDs
And Then We Danced (Republic of Georgia, romance, Levan Gelbakhiani. Rotten Tomatoes: 92%, Certified Fresh. Metacritic: 68. From Glenn Kenny's New York Times review: "Tbilisi, where this movie, written and directed by Levan Akin, is set and was shot, looks like a pleasant place to live, but also like a land out of time. The young members of the Georgian dance group all smoke like chimneys, and their world, and the world around them, has seriously retrograde ideas about human relations. This means trouble for Merab, who has more than a socially unacceptable new love on his plate: his family is struggling in poverty." Read more…)
Come and See (Soviet Union, 1985, WW II drama, Aleksey Kravchenko. Rotten Tomatoes: 97%. From Walter Goodman's 1987 New York Times review [requires log-in]: "In episodes that shift, sometimes subtly, sometimes startlingly, from down-in-the-mud realism to a dreamlike state, a boy named Florya endures the German invasion. His family is slaughtered; a friend, a beautiful young woman who wants only love and babies, is raped; he joins the partisans, is captured and nearly killed. He is our witness to the savagery of the Nazi onslaught against the peoples of Eastern Europe." Read more…)
New Classic DVDs (pre-1960)
The War of the Worlds (1953, sci-fi w/ George Pal special FX, Criterion Collection, Gene Barry. Rotten Tomatoes: 86%. Metacritic: 78. From A.W.'s 1953 New York Times review [requires log-in]: "There's no point in smugly rusticating behind the protection of the hydrogen bomb and jet planes. Those Martians, first reported in 1898 by H. G. Wells and terrifyingly revived for radio listeners by Orson Welles some forty years later, descended, with an assist from Paramount, on the Mayfair yesterday via 'The War of the Worlds.' Now it's either a mad dash for the hills or to the theatre. And, after calm deliberation, it would appear that the movies is the better bet. Make no mistake about it, science-fiction, like comic books, is a part of our culture, and George Pal, who produced this latest amalgam of fact and fantasy, is no tyro in this field. Like his previous sorties into interplanetary space—'Destination Moon' and 'When Worlds Collide'—'The War of the Worlds' is, for all of its improbabilities, an imaginatively conceived, professionally turned adventure, which makes excellent use of Technicolor, special effects by a crew of experts and impressively drawn backgrounds." Read more…)
New American Back Catalog DVDs (post-1960)
Ganja & Hess (1973, drama/horror, Duane Jones. Rotten Tomatoes: 86%. From A.H. Weiler's 1973 New York Times review [requires log-in]: "As a black-oriented, contemporary horror study, 'Ganja & Hess,' which arrived at the Playboy yesterday, is dedicated to what is obviously meant to be a serious theme. The artistry for which it strives, however, is largely vitiated by a confusingly vague mélange of symbolism, violence and sex." Read more…)
New Documentary DVDs
Slay the Dragon (American politics, voting rights,gerrymandering. Rotten Tomatoes: 100%. Metacritic: 73. From Ben Kenigsberg's New York Times review: "'Slay the Dragon' begins with a subject that might seem counterintuitive for a documentary on gerrymandering: the Flint, Mich., water crisis. The movie lays out a timeline of state legislative actions that led to the decision that contaminated the city's water supply. It persuasively argues that the crisis never would have happened without gerrymandering, which had allowed legislators to shield themselves from voters' wrath." Read more…)
New Music DVDs
Go Go Mania (1965 British music revue, The Beatles & more. From an unsigned 1965 New York Times review [requires log-in]: "'Go Go Mania' starts off strong with a fast sample of The Beatles, and never quite recovers. The boys from Britain may be losing ground with the adolescent set, but they are still the class act in rock 'n' roll.They don't have much chance to go go in the opening and closing snippets of yesterday's film bill at the Palace, but they are there in color, which is something. The other acts on hand are equally hirsute, British and on the beat." Read more…)
Filed Under: New Releases Tagged With: 7/7/20, New Releases

redpajama_set_name: RedPajamaCommonCrawl


Waukesha County is home to approximately 390,000 residents, consists of 37 municipalities, and encompasses about 550 square miles.
It is a primary goal of the Waukesha County Department of Parks and Land Use – Environmental Health Division to prevent disease and promote a safe and healthy environment for all residents.
As an agent of the State of Wisconsin Department of Health Services (DHS) and the Department of Agriculture, Trade and, Consumer Protection (DATCP); our responsibility is to enforce local and state codes regarding the inspection and licensure of restaurants, retail food establishments, hotels, motels, tourist rooming houses, bed and breakfast establishments, public swimming pools, campgrounds, and recreational / educational camps.
Serves as a Radon Information Center (RIC). We act as a resource to residents to understand the risks of radon exposure, test their home for radon, interpret test results and follow-up testing, and obtain effective radon mitigation services.
Acts as an agent for the state Department of Safety and Professional Services (DSPS) for plan review, permit issuance, and perform inspections of private on-site wastewater treatment systems (POWTS) in Waukesha County.
Serves as a delegated agent for the Department of Natural Resources (DNR) to perform evaluation of existing wells and assure proper abandonment of wells that are no longer in use.
Ensures that public water supplies meet the national standards that protect consumers from harmful contaminants in drinking water as set forth in the EPA's Safe Drinking Water Act. Waukesha County has an annual contract with the DNR to collect water samples and inspect wells that fall into the Transient Non-Community (restaurants, churches, etc. with ˃ 25 people on at least 60 days/ year) category.
Performs water tests in our laboratory that check for coliform bacteria, nitrates, fluoride, hardness, and iron.
Has a Humane Animal program that conducts animal abuse and neglect investigations, provides emergency assistance to law enforcement agencies, conducts county-wide rabies control, and provides humane animal education.
In coordination with the Waukesha County Public Health Division, conducts lead investigations to determine the source of lead exposure for children that have elevated blood lead levels.
Has a hazardous materials program that ensures regulatory compliance, coordinates remediation and environmental investigations for County owned facilities.


Come back in time for the Dixon Chamber of Commerce and Main Street's Totally 80s Gala! We'll have live entertainment, live and silent auction items, and a chance to win a one-week stay in Key West, Florida! 80s attire is encouraged, but not required.


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Q&A — Koby Stevens
Since crossing over from the kennel at the end of 2016, Koby Stevens has become a vital cog in St Kilda's new-look midfield. The 26-year-old took some time out to chat to Aflplayers.com.au about his strong start to life with the Saints.
Going back to late last year, you had to make a pretty important decision on your future and your footy career… what was that like to move to a new club again?
It was pretty stressful. At the start of the year my thought process was that I'd stay at the Dogs, I was playing some good footy but then I got injured. There was a contract there for me, but after I got injured that was put on the back-burner, and towards the end of the year I struggled to find fitness and I'd been talking to Richo for a while and it was a hard decision to make, but I feel it was the right one and I'm in a good place at the moment.
What was it about the Saints that intrigued you and made you choose them?
They have a really young and exciting list and I thought they could go places. I didn't want to leave a team that was on the way up and then go somewhere just to play football, I want to play finals. I feel like I'm in the right place to do that.
Did you have any existing relationships with St Kilda players? Were there any familiar faces when you got here?
Not really. I had met Sam Gilbert a few times and a couple of the other boys but since I've been at the club I've made some great friendships. The guys have been so inviting.
You went through a tricky period there with the food poisoning issue. A little bit has been written about that, but how much of a toll did it take on your body?
It was an interesting one! I got through a full pre-season and was flying coming into the NAB Challenge and went up to Albury to play in the last pre-season game and I got salmonella poisoning. I actually ended up in hospital for eight days and lost nine kilos and it wrecked me for a good four weeks. I lost a lot of fitness and had to build my body back up and finally got back into the AFL side against Hawthorn in Round 6 and two weeks later I got suspended, so it was a pretty interesting start. I feel like I've now got some continuity.
How do you put the weight back on? Were you advised to eat as much as possible or were you told to remain on a strict diet and gradually build yourself back up?
It wasn't that bad, actually because the doctor gave me the leeway to eat what I wanted for a few weeks there! I was eating so much pasta and all the carbs to build my body back up. The body is pretty amazing in that respect in terms of the muscle memory, it all came back pretty quickly. The toughest thing was regaining fitness and I reckon the first time I ran after being in hospital I struggled to do a lap I was blowing that hard.
What was it like dropping nine kilos? Can you remember the last time you were that light?
I reckon I was 16 when I was last in the 70 kg range. I remember rocking up to training about a week after being in hospital and the boys looked at me closely and almost didn't know who I was because I was that skinny and frail. I recall Spud Frawley giving it to me on the track. It was pretty funny!
Going back to last year with the Dogs, and being injured and being forced to watch on as the team made history, clearly you would have been really excited for your friends and for the club, but what was that like not being involved on the day?
It was an amazing experience and something I'll cherish forever. Some of my best mates got to play in a flag and it was pretty special in that the Dogs hadn't won one for so long and to do it the way they did was amazing. At the same time, it was pretty difficult to sit back and watch because all you want to do is be out there and sit up on the podium with them. I look back on it now as a learning curve — at the stage then I probably checked out a little bit after being injured and wasn't as fit as I wanted to be. I look back at things like that and learn from it. I've got a bit of time left to try and do it again.
Knowing first-hand what it means to win a premiership not only for a player but a club, I imagine that motivates you further knowing you have a chance at a new club that is going through a lengthy drought?
It motivates me a lot. To be able to go through an experience where we were sitting seventh on the ladder and took it week-by-week and saw what happened, and to be able to watch a team just catch fire and go on a four-week run in September that was fueled by momentum it reminded me that any team can do anything this year the way the competition is. It keeps me motivated through times like this when it's cold and it's winter and your body is a little bit sore during training. I always have it in the back of the mind.
Speaking of catching fire over four weeks, the Saints have won four in a row, and even though the first two wins were gritty games that you had to grind out, the last two wins in Perth and on Saturday night were very positive. How have things turned after three disappointing weeks in a row?
We started playing some really good footy at the start of the year, and then had three bad weeks where we went slow with the footy and went sideways and played safe in a way. It's a credit to the coaches because we sat down and had a great meeting about our method and the way we were playing at the time and we made an effort to get back to free-flowing footy and the last month has been really positive. The first couple of wins were grinded out, but over the weekend we felt that a big performance was coming and it did. But it's only one game where we've lit it up so we need to continue to improve.
Take me back to the suspension… it came at the worst possible time because you'd come back from the food poisoning, played well against the Hawks and then in your second game against the Giants you tackled Nathan Wilson, got suspended and was forced to wait it out again…
It was as frustrating as things have been, really. Coming off the salmonella, and then getting back into the AFL side and playing really well and copping a suspension for what most people would believe was a really good tackle, but the way the rules are these days it's a fine line and that was the hardest thing for me. You grow up getting taught to tackle that way but at the end of the day, there's rules in place and when someone hits their head you're at risk of having a week off and that's what happened.
I probably felt a bit sorry for you because I heard that Richo mentioned at quarter time in that game that the Giants were breaking some of the team's tackles, and then you set the tone and the standard with a tackle that set up a goal, you get a free kick for holding the ball, and then all of a sudden you're on the sidelines again…
Yeah, and that made it even more frustrating. Richo has come to me a few times this year when we've been down or struggling and told me that I need to set a standard by hitting a body or getting the boys going and that was one of those times. It's something that's happened and I've moved on pretty quickly. Richo has spoken to me and told me to not stop playing the way I am and keep hitting the contest as hard as ever.
Did anyone from the club provide any commentary after the Instagram post you put up?
Haha, no they didn't! I think it was swept under the carpet…
In the nine games you've played, the team has won six of those, you're averaging career-high disposals and tackles, is your role different at the Saints? You seem to be enjoying more time in the middle of the ground.
I'm not playing as much forward as I have previously. Over the past couple of years, and especially with Bevo, all players had to be a utility and be able to play in different spots, and because we had so many good midfielders at the Dogs there'd be periods where I'd be playing a lot up forward. This year, Richo has backed me in and I've built a really good relationship with Jack Steven, Seb Ross and Jack Steele also. I'm playing inside mid and it's been good in that respect because I'm playing a role that I'm really good at but haven't had the opportunity to play in the last four or five years.
What was that second quarter like on Saturday night? To win it 59-1 must have been unbelievable… everything just worked.
There's not many times — especially in the AFL — where you have fun playing because it's such a brutal contest. This year, it's ruthless and if you're a little bit off, any team can make you look silly. That second quarter was amazing and to see the goals go through was good because we've had periods over the last five or six weeks where we've kicked a lot of points. Being able to kick those goals led to more momentum and it was a fun half.
You sold some pretty good candy as well…
I had to make up for the dropped chest mark! I lost the yellow footy in the lights and I just kept making it up on the spot. I thought I ran too far after I kicked it!
With the goal-kicking side of things, is that something that Richo and the coaching staff talk to you guys about and make adjustments for, or is it expected that as a footballer you need to make your own sacrifice and work on it in your own time?
Richo addressed it a tiny bit, but it's something that we need to work on in our own time — we do a lot of goal-kicking as it is — but he did tell us to keep creating the opportunities because it will come. If we keep putting the work in, then it will happen eventually and it did on the weekend which was great to see.
Moving away from footy, what do you like to get up to off the field? I see you and Matt Suckling have launched a clothing line…
Yeah. It's called 'Lundyn' and it's a streetwear brand. So far, we've had a lot of interest in some big stores like Culture Kings and some stores overseas, so we're working through that and trying to sort out our manufacturers for when that drops in the summer. Hopefully we're going to target opening up a store in the CBD of Melbourne early on in the year, not just for our brand but also to bring in some bigger ones from overseas that not many people in Australia have access to.
How much time do you spend putting into that? I imagine the networking and production would take up a lot of your spare time…
It's taking up a lot of time, and I'm also doing my business degree on the side at university, so between that and the project we're working on at the moment it's quite time-consuming, but it's good because it takes my mind off things. It's great to have an avenue away from footy.
Looking forward to the end of the year, have you set any personal goals?
I want to keep building my footy because I still feel like I'm not at my best and I have a lot of growth left in my game. Obviously, the continuity will help that. Now, I've played five games in a row which doesn't seem like much but for me it's a lot. At the start of this year, I was in and out with sickness and last year I had injuries so I really want to build into the next block of games and stay healthy. I think I have a lot more to give to the midfield and the team as well.
Thanks for taking the time on your day off, and good luck for the rest of the season.


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text:
History of Tibet
The conflict between China and Tibet:
The conflict between China and Tibet: The individual nomadic tribes in the Tibetan highlands were united under a strong King in the 7th Century, and soon became a military power which the bordering Chinese empire had to reckon with. The Tibetan hordes which always appeared on the horizon like gathering storm clouds were feared in a way that only the Huns were dreaded later in history. Bitter feuds were fought over the present day Xinjiang and Gansu, yet Tibet secured control of the silk road which ran through the important centre of Kashgar, and finally raided and plundered Chang´an - the Chinese capital and greatest metropolis of the world in those days.
The rise of the Tibetanempire" was abruptly interrupted however, when one of the 9th Century rulers brought discordance into the country. For political reasons he suppressed the Tibetan Buddhism in favour of the original indigenous shamanistic Bon-religion and played the individual powers in his country off against each other. After his murder the kingdom declined into small rivalling princedoms. When, after two centuries of anarchy, Lamaism finally won through in the 11th century - as a form of Buddhism which incorporated elements of the Bon-religion a well as those from the Indian esoteric Tantra - the spiritual leaders gained political power.


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text:
Title: Letter to the anarchist galaxy
Author: Anonymous
Topics: armed struggle, criticism and critique, insurrection
Source: Retrieved on November 24, 2011 from actforfree.nostate.net
Letter to the anarchist galaxy
Uninvited, we are forcing ourselves on a debate that is not ours. And which never will be, as it is set on a terrain that remains sterile for the development of insurrectional perspectives and the anarchist ideas and activities that focus on such a development. So, you might ask, why write a letter? Because nothing is closer to our hearts than liberatory and destructive revolt, than the struggle for the subversion of the existent, because we will never stop recognizing ourselves in all comrades who decide to attack the structures and people of power out of a desire for freedom; because there are few things we cherish more than individual will, the striving for coherence and the courage of lighting the fuse, above everything. Don't think we are writing this premise in an attempt to please; it is sincere, as is our concern about the voluntary amputation of the domain of anarchist struggle.
Let's be clear:
More than ever there is a need for the destructive intervention of anarchists, more than ever it is the moment to intensify, to search for possibilities and hypotheses enabling the extension of revolt and insurrection and in this way speed up the overturning of this world. But this need and urge don't absolve us from the obligation to think about what, where, how and why.
Let's be straightforward:
For what reasons are anarchists (we don't have any difficulty in understanding why authoritarians would do so) systematically claiming their acts and signing them with acronyms that have become famous worldwide? What brings them to associate this road with an excessive form of coherence between thinking and acting, between theory and practice, while in fact it is simply the illusory abolition of a permanent tension which should exist between them and which is beyond doubt the moving strength behind the anarchist movement?
This spreading mania risks casting its shadow over all acts of revolt. Not only actions by anarchists that merrily pass through the bitter and always disappointing pill of the claim but also, and perhaps especially, the action of the more general panorama of rebellion and social conflictuality. Maybe that is one of the 'reasons' that pushed us to write this text. Tired of experiencing and finding the anarchist field of attack, sabotage and expropriation more and more assimilated to an acronym and, as such, political representation; tired of seeing the horizon narrowing into two falsely opposing choices: either 'respectable' anarchism, running behind assemblies, social movements and base trade unions; or 'bad' anarchism, being kindly asked to stamp your contributions to the social war with some acronym — and if you don't, someone else will do it for you.
Because we also choose to attack. We also sabotage the machinery of capital and authority. We also choose to not accept a position of begging and are not putting off the necessary expropriation until tomorrow. But we do think that our activities are simply part of a wider social conflictuality, a conflictuality that doesn't need claims and acronyms. We believe that only when actions are anonymous can they really be appropriated by everyone. We believe that putting a stamp on an attack is moving the attack from the social to the political field, to the field of representation, delegation, actors and spectators. And, as has often been said before in this kind of debate, it's not enough to proclaim the refusal of politics: its refusal implicates coherence between means and aims, and the claim is a political instrument just like the membership card, the program, the declaration of principles.
Over and above that, there is some confusion that we want to expose, because we can't continue to simply stand by and watch a content which is more and more being given over to concepts such as informality. The choice of an informal autonomous anarchist movement implies the refusal of fixed structures, of membership organisations, of centralising and unifying federations; and therefore also fixed recurring signatures, if not all signatures. It is the refusal of the drawing up of programs, the banishment of all political means; and thereby also of programmatic claims that claim to be in the position of outlining campaigns.
It is the refusal of all centralisation; and so equally of all umbrella structures, no matter whether they declare themselves verbally 'informal' or formal. In a positive sense, to us informality signifies an unlimited and undefined archipelago of autonomous groups and individuals which are forging ties based on affinity and mutual knowledge and who decide upon that basis to realize common projects. It is the choice for small, affinity-based circles which make their own autonomy, perspectives and methods of action the basis for creating ties with others. Informal organization has nothing to do with either federations or acronyms. And what brought some comrades to speak not only about informality, but about 'insurrectionalism' as well? With the risk of devaluing the wide panorama of ideas, analyses, hypotheses and proposals, we could say that 'insurrectionalism' contains the methods and perspectives which, out of a non-compromising anarchism, want to contribute to 'insurrectional situations'. The anarchist arsenal of methods for this contribution is enormous. Moreover, the use of methods (agitation, attack, organisational proposals etc.) in itself means hardly anything: only in a thought-out and evolving 'projectuality' do they acquire meaning in the struggle. Setting fire to a State building is beyond doubt always a good thing, but it is not necessarily inscribed in an insurrectional perspective 'as such'. And this counts even less for the choice, for example, of aiming attacks particularly against rather central, spectacular targets, accompanied by confessions of faith. It is no coincidence that during other moments of insurrectional projectualities, the emphasis was put particularly on modest, reproducible, anonymous actions of attack compared to the more centralized structures and people of power, or on the necessity of well-aimed sabotage of infrastructures that don't need echoes in the media in order to reach their goals, for example the immobilization of transport, data, and energy supplies.
It seems that there are not all that many perspectives behind the current mania for claims, or at least, we have difficulty in discovering them. In fact, and this doesn't imply that we want to underestimate the sincere and courageous rebellion of those comrades, it seems as if there is above all a striving for recognition. A recognition by the enemy, who will hurry to complete its list of terrorist organisations, often signifying the beginning of the end: the enemy starts working to isolate a part of the conflictuality from the wider conflictuality, an isolation which is not only the forerunner of repression (and actually it doesn't really matter, repression is always there — we're not going to weep about the fact that anarchist activities are always being followed by the eyes of the Argus, and thus prosecuted), but especially, and that's the most important, it is the most effective means to combat all possible infection.
In the current condition of the social body, which is sick and deteriorating, the best thing for power is a clearly recognizable and definable knife which tries to stab a piece of it, while the worst for power is a virus that risks harming the whole body in an intangible and therefore uncontrollable way. Or are we mistaken, and is it all more about recognition by the exploited and excluded? But are we as anarchists not against all forms of delegation, of shining examples which often legitimize resignation? Most certainly, our practices can be contagious, and our ideas even more, but only on condition that they bring back the responsibility to act to each separate individual, when they question resignation as being an individual choice.
To inflame hearts, most certainly, but when this lacks the oxygen of one's own conviction, the fire will extinguish fast and in the best case will simply be followed up by some applause for the upcoming martyrs. And even then, it would really be too ironic if the principal opponents of politics, the anarchists, were to take up the torch of representation and, in the footsteps of their authoritarian predecessors, separate social conflictuality from the immediate subversion of all social roles, and do this in times when political mediation (political parties, unions, reformism) is slowly becoming obsolete and outmoded. And it makes no difference whether they want to do this by taking the lead of social movements, speaking great truths in popular assemblies or by means of a specific armed group.
Or is it all about striving for 'coherence'? Unfortunately, the anarchists that exchange the quest for coherence for tactical agreements, nauseating alliances and strategic separations between means and aims have always existed. Anarchist coherence is beyond doubt also to be found in the denial of all this. But this doesn't mean that, for example, a certain condition of 'clandestinity' would be more coherent. When clandestinity is not seen as a necessity (either because repression is hunting us down or because it is necessary for certain action), but as some kind of hpinnacle of revolutionary activity, there is not so much left over from the infamous a-legalism. In order to imagine this, it might suffice to compare it to the social situation in Europe: it is not because thousands of people are living in a really 'clandestine' situation (people without papers), that it makes them automatically and objectively a threat to legalism and crowns them as 'revolutionary subjects'. Why would it be any different for anarchists living under conditions of clandestinity?
Or might it all be about frightening the enemy? A recurring element in claims is that apparently there are anarchists who believe they can scare power by expressing threats, publishing pictures of weapons or exploding little bombs (and let's not mention the despicable practice of sending letter bombs). In comparison to the daily slaughter organized by power it seems kind of naïve, especially to those who have no illusions left concerning rulers that are more sensitive, capitalism with a human face, or more honest relations within the system. If power, despite its arrogance, were to fear anything it would be the spread of revolt, the sowing of disobedience, the uncontrolled igniting of hearts. And off course, the lightning of repression will not spare anarchists that want to contribute to this, but that doesn't prove how 'dangerous' we are in any way whatsoever, it maybe only speaks about how dangerous it would be if our ideas and practices were to spread among among the excluded and exploited.
We are continually surprised about how little the idea of some kind of shadow is able to please contemporary anarchists, the ones that don't want to resign themselves, wait or build mass organisations.
We used to be proud of it:
we would put all on all to make the swamp of social conflictuality extend and so make it impossible for the forces of repression and recuperation to penetrate. We didn't go searching for the spotlight, or for the glory of the warrior: in the shadow, at the dark side of society we contributed to the disturbance of normality, to the anonymous destruction of structures of control and repression, to the 'liberation' of time and space through sabotage so that the social revolt could continue. And we used to diffuse our ideas proudly, in an autonomous way, without making use of the echoes of the media, far away from the political spectacle including the 'oppositional' one. An agitation which was not striving to be filmed, recognized, but which tried to fuel rebellion everywhere and forge ties with other rebels in the shared revolt.
It seems that today more than a few comrades have chosen the easy solution of identity over the circulation of ideas and revolt, and have in this way reduced affinity relations to a joining something. Off course it is easier to pick up some ready-made product off the shelves of the militant market of opinions and consume it, rather than develop a proper struggle track that makes a rupture with it. Off course it is easier to give oneself the illusion of strength by using a shared acronym than to face the fact that the 'strength' of subversion is to be found to the degree and in the way it can attack the social body with liberating practices and ideas. Identity and 'formation of a front' might offer the sweet illusion of having meaning, especially in the spectacle of communication technology, but doesn't clear every obstacle from the road. Even more, it shows all the symptoms of sickness of a not-so-anarchist conception of struggle and revolution, which believes in being able to pose an illusionary anarchist mastodon before the mastodon of power in a symmetrical way. The immediate consequence is the evermore narrowing of the horizon to a not-so-interesting introspection, some patting on the back here and there and the construction of a framework of exclusive self-reference.
It wouldn't surprise us if this mania were to paralyse the anarchist movement even regarding our contribution to more and more frequent, spontaneous and destructive revolts. Being locked up in self-promotion and self-reference, with communication reduced to publishing claims on the internet, it doesn't seem that anarchists will be able to do a lot (apart from the obligatory explosions and arsons, often against targets which the people in revolt are already very much destroying themselves) when the situation is exploding in their neighbourhood. It seems that the closer we seem to get to the possibility of insurrections, the more tangible these possibilities are becoming, the less anarchists want to be busy with it. And this counts equally for those who are closing up themselves in some ideology of armed struggle. But what are we talking about when we speak about insurrectionary perspectives? Definitely not just about a multiplicity of attacks, even less when these seem to tend towards the exclusive terrain of the anarchists with their fronts. Much more than a singular armed duel with the State, insurrection is the multiple rupture with time, space and roles of domination, a necessarily violent rupture which can signify the beginning of thesubversion of social relations. In that sense, insurrection is rather a social uncleashing, which goes further than a generalizing of revolt or riots, but which already carries in its negation the beginning of a new world, or at least should do. It is precisely the presence of such utopian tension that offers some grip against the return to normality and the recovery of social roles after the great feast of destruction. So it may be clear that insurrection is not a purely anarchist matter, although our contribution to it, our preparation towards it, our insurrectional perspectives, could in future times be beyond doubt important and maybe decisive for pushing the unchaining of negation towards a liberating direction. Abandoning in advance these difficult issues — which should be gaining importance in a world that is becoming more and more unstable — by locking ourselves up in some identity-based ghetto and cherishing the illusion of developing 'strength' by common signatures and the 'unification' of anarchists that are prepared to attack, inevitably becomes the negation of all insurrectionary perspectives.
To get back to the world of fronts and acronyms, we could for example mention the obligatory references to imprisoned comrades as a clear sign of the restraining ourselves within a framework of exclusive self-reference. It seems that once locked up by the State, these comrades are no longer comrades like we are, but are precisely 'imprisoned' comrades. In this way, the positions in their already difficult and painful debates become fixed in a way that can have only two exits: either the absolute glorification of our imprisoned comrades, or absolute rejection, which can very quickly turn into a renouncement of developing and embodying solidarity.
Does it still make sense to continue repeating that our imprisoned comrades are neither positioned above or below other comrades, but are simply among them? Isn't it remarkable that, despite the many struggles against prisons, the present current is again coming out with 'political' prisoners, abandoning a more general perspective of struggle against prison, justice,...? In this way we risk completing what the State was already trying to realise in the first place by locking our comrades up: by turning them into abstract, idolized and central reference points, we are isolating them from the social war as a whole. Instead of looking for ways to maintain ties of solidarity, affinity and complicity across the walls, by placing everything in the middle of social war, solidarity is shrinking into the quoting of names at the end of a claim. On top of that, this is generating a nasty circular motion without much perspective, a higher level of attacks which are 'dedicated' to others, rather than taking strength from ourselves and from the choice of when, how and why to intervene in given circumstances.
But the logic of armed struggle-ism is unstoppable. Once set in motion, it unfortunately becomes very difficult to counter. Everybody that doesn't join and take up its defence is compared to comrades that don't want to act or attack, that submit revolt to calculations and masses, that only want to wait and are refusing the urge to light the fuse here and now. In the deformed mirror, the refusal of the ideology of armed struggle is equal to the refusal of armed struggle itself. Of course this is not true, but for who wants to hear that, there is no space for discussion left open. Everything is being reduced to a thinking in blocks, for and against, and the path which we think is more interesting, the development of insurrectional projectualities is disappearing into the background. To the applause of the formal libertarians and the pseudo-radicals as well as the repressive forces, who desire nothing more than the drying up of this swamp.
Because who still wants to discuss projectuality today, when the only rhythm that the struggle seems to have is the sum of the attacks claimed on the internet? Who is still searching for a perspective that wants to do more than strike a little? There is, by the way, no doubt about that: striking is necessary, here and now, and with all the means that we think appropriate and opportune. But the challenge of the development of a projectuality, which aims at the attempt of unchaining, extending or deepening insurrectional situations, demands a bit more than the capacity to strike. It demands the development of proper ideas and not the repetition of other people's words, the strength to develop real autonomy in terms of struggle and capacities; the slow and difficult search for affinities and the deepening of mutual knowledge; a certain analysis of the social circumstances in which we act; the courage to elaborate hypotheses for the social war in order to stop running behind facts or ourselves.
In short: it doesn't only demand the capacity to use certain methods but especially the ideas of how, where, when and why to use them, and then in combination with a whole spectre of other methods. Otherwise there will be no anarchists left, only a spectrum of fixed roles: propagandists, squatters, armed strugglers, expropriators, writers, window breakers, rioters, etc. There would be nothing more painful than to find ourselves so unarmed in the face of the coming social storm than for each one of us to have only one speciality left. There would be nothing worse in explosive social situations than having to note that anarchists are too much involved in their own back yard to be able to really contribute to the explosion. It would give the most bitter taste of missed opportunities when we, by focussing exclusively on the identity ghetto, would abandon the discovery of our accomplices inside the social storm, the forging of ties of shared ideas and practices with other rebels, breaking with all forms of mediated communication and representation and in this way opening up space for true mutuality which is allergic to all power and domination.
But as always we refuse to despair. We are aware that many comrades are searching for possibilities to attack the enemy and forge ties with other rebels through the spreading of anarchist ideas and struggle proposals, in a time and space that abandons all political spectacle. It is probably the most difficult path, because it will never be rewarded. Not by the enemy, not by the masses and most probably not by other comrades and revolutionaries. But we carry a history inside of us, a history that connects us to all anarchists and which will obstinately continue to refuse to be enclosed, either within the 'official' anarchist movement, or in the armed-struggle-ist reflection of it. Those who continue to refuse to spread ideas separately from the ways in which we spread them, thus trying to exile all political mediation, including the claim. Those who don't care much about who did this or that, but connect it to their own revolt, their own projectuality which expands in the only conspiracy we want: the one of rebellious individualities for the subversion of the existent.