DRAPER — It's come down to a battle between a city law and private property rights.
A Draper couple is taking the city to court, appealing the City Council's denial of the residents' plans to landscape their backyard.
John and Angela Dayton, who moved to the south valley suburb from New York in June 2009, want to build retaining walls, plant grass in a flat play area for their kids and fence their total property in the Corner Canyon Vista subdivision.
But their .35-acre property includes a chunk of yard with a "limit-of-disturbance" designation, meaning that in order to keep the natural vegetation preserved, no "clearing, grubbing, building, construction or fencing" is permitted, according to city code.
"We want to be able to enjoy usable property that we own and are taxed for owning," John Dayton said in an e-mail to the Deseret News. "This is a situation where a bad law was created. No one can tell us why it exists, what the exact limits of disturbance are or why (it) exists on our particular plat, which contains none of the features seen in other properties that have (the same restrictions)."
Draper's engineering division originally approved a plat amendment filed by the Daytons in November. The Planning Commission, however, denied it in December, and the City Council followed suit in January.
"Draper city's ultimate denial of the requested plat amendments (was) based on vague, arbitrary and capricious and undocumented, unverified fears, concerns and subjective preference," reads the appeal, which was filed in 3rd District Court in February.
The Daytons' property on Gray Fox Drive, near The Church of Jesus Christ of Latter-day Saints' Draper Temple, drops off into popular Corner Canyon. The couple worry about safety and legal liability, as animals and hikers frequent the area.
They also are questioning why the limits were placed on their home in the first place, and why other lots have had their restrictions removed.
Draper officials have a long list of concerns: An overlay zone in the area prohibits development on the Dayton's 30 percent slope; they want the area left alone for preservation of open space; the natural vegetation needs to be protected for erosion control; and approving the amendment could set a precedent.
"We've seen slipping and slidings up there, so we're conscious about it," said Doug Ahlstrom, Draper attorney. "It's about the plants holding the soil."
The Daytons' yard is eroding, and they want to plant trees and build retaining walls to keep it safe.
They added that their real estate agent never told them about the limit-of-disturbance designation. They've submitted a petition to the city with 42 neighbors' signatures, encouraging city leaders to approve the appeal.
Ahlstrom said the list of complaints in the appeal are irrelevant.
"After hearing from the public, (the City Council) determined not to (remove the restrictions)," he said. "Was the decision capricious or illegal? That's what the court has to decide."
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