Boulder City Zoning Code
APPEAL AUTHORITIES
AND PROCEDURES
§ 153.355 PURPOSE.
As required by the Act, this subchapter is provided to allow the applicant, a board, or officer of the town, or any other person who believes they are adversely affected by a decision of a land use authority to appeal the decision to an appeal authority, as identified by this subchapter.
(Ord. 46, passed 8-28-2001; Ord. 21D, passed 1-7-2004; Ord. 59, passed 5-8-2008, § 1801)
§ 153.356 APPEAL AUTHORITIES.
As provided by the Act, and to provide for appeals of decisions of the town’s land use authorities administering or interpreting the land use ordinances, including this chapter, the following appeal authorities, with their respective appeal responsibilities, are hereby identified.
(A) District Court.
(1) Any person aggrieved by a decision of the Council in enacting or administering this chapter, or the town’s other land use ordinances, may file a petition with District Court, as provided by this chapter.
(2) Any person aggrieved by a decision of the BOA in administering this chapter may file a petition with the District Court, as provided by this chapter.
(B) Council. Any person aggrieved by a decision of the Commission in administering this chapter may file an appeal with the Council.
(C) Commission. Any person aggrieved by a decision of the Zoning Administrator in administering or interpreting this chapter, or the town’s other land use ordinances, may file an appeal with the Commission.
(Ord. 46, passed 8-28-2001; Ord. 21D, passed 1-7-2004; Ord. 59, passed 5-8-2008, § 1802)
§ 153.357 MAXIMUM TIME ALLOWED TO FILE APPEAL.
(A) Any person, including the applicant for any land approval required by this chapter, and any board or officer of the town, aggrieved by a decision of a land use authority’s decision administering or interpreting this chapter, or the town’s land use ordinances may, within ten days of the decision, appeal that decision to the appeal authority identified by § 153.356 of this chapter, except as may be further provided by divisions (B) and (C) below.
(B) Any person, including the applicant for any approval required by this chapter, or the town’s other land use ordinances, and any board or officer of the town, aggrieved by a decision of the Council, acting as a land use authority, may file a petition for the review of the Council’s decision with the District Court within 30 calendar days after the decision is final, as provided by §§ 153.365 and 153.366 of this chapter.
(C) Any person, including the applicant for any approval required by this chapter, or the town’s other land use ordinances, and any board or officer of the town, aggrieved by a decision of an appeal authority may file a petition for review of the decision with the District Court within 30 calendar days after the decision is final, as provided by §§ 153.365 and 153.366 of this chapter.
(Ord. 46, passed 8-28-2001; Ord. 21D, passed 1-7-2004; Ord. 59, passed 5-8-2008, § 1803)
§ 153.358 REQUIREMENTS FOR AN APPEAL.
(A) An appeal petition of a land use authority’s decision made under the authority of this chapter, or the town’s other land use ordinances, shall clearly identify the alleged error in any order, requirement, decision or determination made by the land use authority in the administration or interpretation of this chapter, or the town’s other land use ordinances.
(B) Only those decisions in which a land use authority has applied the requirements of this chapter, or the town’s other land use ordinances to a particular application, person, lot or parcel may be appealed to an appeal authority.
(Ord. 46, passed 8-28-2001; Ord. 21D, passed 1-7-2004; Ord. 59, passed 5-8-2008, § 1804)
§ 153.359 CONDITION PRECEDENT TO JUDICIAL REVIEW, APPEAL AUTHORITY DUTIES.
(A) As required by the Act, and as a condition precedent to judicial review, each adversely affected person shall timely and specifically challenge a land use authority’s decision, in accordance with the requirements of this chapter.
(B) An appeal authority shall:
(1) Act in a quasi-judicial manner;
(2) Serve as the final arbiter of issues involving the interpretation or application of this chapter, and the town’s other land use ordinances; and
(3) May not entertain an appeal of a matter in which the appeal authority, or any participating member, had first acted as the land use authority.
(C) As provided by the Act, an adversely affected party shall present every theory of relief to the appeal authority that it can raise in District Court.
(D) As required by the Act, an appeal authority shall not require an adversely affected party to pursue duplicate or successive appeals before it, or another appeal authority, as a condition of the adversely affected party’
(Ord. 46, passed 8-28-2001; Ord. 21D, passed 1-7-2004; Ord. 59, passed 5-8-2008, § 1805)
§ 153.360 APPLICATION REQUIRED.
(A) An appeal petition or application for an appeal, of a land use authority’s decision shall be made on the appeal application, available from the Town Clerk.
(B) An appeal application shall be determined complete by the Town Clerk.
(Ord. 46, passed 8-28-2001; Ord. 21D, passed 1-7-2004; Ord. 59, passed 5-8-2008, § 1806)
§ 153.361 MEETINGS, RECORDS AND ACTION OF AN APPEAL AUTHORITY.
(A) Each appeal authority, as identified herein shall:
(1) Notify each of its members of any meeting or hearing;
(2) Provide each of its members with the same information and access to town resources as any other member;
(3) Convene only if a quorum of its members is present; and
(4) Act only upon the vote of a majority of its convened members.
(B) After an appeal petition is determined complete by the Town Clerk, as provided herein, the Zoning Administrator shall coordinate with the appeal authority to schedule the hearing of the appeal. The Zoning Administrator shall transmit to the appeal authority all materials constituting the full and complete record of the decision of the land use authority.
(C) Following a written decision by the appeal authority, as provided by § 153.365 of this chapter, the appeal authority shall provide the applicant with a copy of the written decision.
(D) A record of the decisions of the appeal authority shall be maintained in the office of the Town Clerk, which shall constitute the official record of the appeal authority.
(Ord. 46, passed 8-28-2001; Ord. 21D, passed 1-7-2004; Ord. 59, passed 5-8-2008, § 1807)
§ 153.362 DUE PROCESS.
(A) Each appeal authority, identified by this chapter, shall conduct each appeal hearing, as provided herein.
(B) Each appeal authority, identified herein, shall respect the due process rights of each of the participants.
(Ord. 46, passed 8-28-2001; Ord. 21D, passed 1-7-2004; Ord. 59, passed 5-8-2008, § 1808)
§ 153.363 BURDEN OF PROOF.
Any person bringing an appeal and alleging an error of a land use authority’s decision administering or interpreting this chapter or the town’s other land use ordinances has the burden of proof that the land use authority erred.
(Ord. 46, passed 8-28-2001; Ord. 21D, passed 1-7-2004; Ord. 59, passed 5-8-2008, § 1809)
§ 153.364 STANDARD OF REVIEW FOR APPEALS.
(A) Each appeal authority identified by this chapter shall hear and review all appeal matters “on the record,” including the review of all factual matters. Each appeal authority shall only consider those materials presented and originally before the land use authority in making the decision that is the subject of the appeal.
(B) The appeal authority shall determine the correctness of a decision of the land use authority in its interpretation and application of this chapter, and the town’s other land use ordinances.
(C) Only those decisions in which a land use authority has applied the requirements of this chapter, or the town’s other land use ordinances to a particular application, person, lot or parcel may be appealed to an appeal authority.
(D) An appeal application shall not be used to waive, modify or amend any requirement, provision or term of this chapter, or the town’s other land use ordinances.
(Ord. 46, passed 8-28-2001; Ord. 21D, passed 1-7-2004; Ord. 59, passed 5-8-2008, § 1810)
§ 153.365 FINAL DECISION.
A decision of each appeal authority, as identified herein, shall take effect on the date when the appeal authority, as applicable, issues a written decision.
(Ord. 46, passed 8-28-2001; Ord. 21D, passed 1-7-2004; Ord. 59, passed 5-8-2008, § 1811)
§ 153.366 DISTRICT COURT REVIEW.
(A) Required time for filing.
(1) No person may challenge in District Court a decision of a land use authority until that person has exhausted all administrative remedies as provided by this chapter and received a final decision from the appeal authority, as provided by § 153.365 of this chapter.
(2) Any person adversely affected by a final decision made in the exercise of, or in violation of, the provisions of this chapter may file an appeal petition for review of the decision with the District Court within 30 calendar days after the decision is final.
(3) An appeal petition is barred unless it is filed within 30 calendar days after the appeal authority’s decision is final.
(B) Tolling of time.
(1) The required time for filing for District Court review shall be tolled from the date that a person files a request for arbitration of a constitutional taking issue with the property rights ombudsman, as provided by UCA § 63-34-13, as amended, until 30 calendar days after:
(a) The arbitrator issues a final award; or
(b) The property rights ombudsman issues a written statement under UCA § 63-34-13(4)(b), as amended, declining to arbitrate or to appoint an arbitrator.
(2) A tolling under this section operates only as to the specific constitutional taking issue that is the subject of the request for arbitration filed with the property rights ombudsman by a property owner.
(3) A request for arbitration filed with the property rights ombudsman after the time under division (B)(1) above to file an appeal petition has expired does not affect the time to file an appeal petition.
(C) Standards governing court review.
(1) The District Court shall:
(a) Presume that a decision, ordinance or regulation made under the authority of this chapter, or the town’s other land use ordinances, and the Act, is valid; and
(b) Determine only whether the decision, ordinance or regulation is arbitrary, capricious or illegal.
(2) A decision, ordinance or regulation of the Council involving the exercise of legislative discretion is valid if the decision, ordinance or regulation is reasonably debatable and not illegal.
(3) A decision of a land use authority or an appeal authority involving the exercise of administrative discretion is valid if the decision is supported by substantial evidence in the record and is not arbitrary, capricious or illegal.
(4) A determination of illegality requires a determination that the decision, ordinance or regulation violates a law, statute or ordinance in effect at the time the decision was made or the ordinance or regulation adopted.
(5) The time requirements for the filing of an appeal petition with District Court, as provided by this chapter apply from the date on which the land use authority takes final action on a land use application for any adversely affected third party, if the land use authority conformed with the notice provisions of this chapter, as applicable, or for any person who had actual notice of the pending decision.
(6) If the town has complied with the notice requirements, as provided by this chapter, a challenge to the enactment of this chapter may not be filed with the District Court more than 30 calendar days after the enactment.
(D) Appeal authority; review on the record.
(1) The Council, acting as a land use authority, or appeal authority, as the case may be, shall transmit to District Court the record of its proceedings, including its minutes, findings, orders and, if available, a true and correct transcript of its proceedings.
(a) If the proceeding was tape-recorded, a transcript of that tape recording is a true and correct transcript for purposes of this section.
(b) If there is a record, the District Court’s review is limited to the record provided by the land use authority, or appeal authority, as the case may be.
(2) The court may not accept or consider any evidence outside the record of the land use authority or appeal authority, as the case may be, unless that evidence was offered to the land use authority or appeal authority, respectively, and the court determines that it was improperly excluded.
(3) If there is no record, the court may call witnesses and take evidence.
(4) The filing of a petition does not stay the decision of the land use authority, or appeal authority, as the case may be.
(E) Staying of decision.
(1) Before filing a petition under this chapter, or a request for mediation or arbitration of a constitutional taking issue under UCA § 63-34-13, as amended, the aggrieved party may petition the appeal authority to stay its decision.
(2) Upon receipt of a petition to stay, the appeal authority may order its decision stayed pending District Court review if the appeal authority finds it to be in the best interest of the town.
(3) After a petition is filed under this chapter, or a request for mediation or arbitration of a constitutional taking issue is filed under UCA § 63-34-13, as amended, the petitioner may seek an injunction staying the appeal authority’s decision.
FIGURE 7: APPEAL AUTHORITIES
(Ord. 46, passed 8-28-2001; Ord. 21D, passed 1-7-2004; Ord. 59, passed 5-8-2008, § 1812)