The regulations set forth in this chapter describe the appeal authority which is sometimes referred to as the board of adjustment elsewhere in this title and its composition, function and responsibilities as defined in state law, Utah Code Annotated title 10, chapter 9a, and the town subdivision and master planned development code.

(Ord., 1-18-2005; amd. Ord. 20-02, 3-17-2020; Ord. 25-01, 2-18-2025)

   In order to avail the town of the powers provided in Utah Code Annotated title 10, chapter 9a, as amended, there is hereby created a land use appeal authority, which may be a panel consisting of three (3) members with up to two (2) nonvoting alternates to vote when a regular member is absent, or the town council. Members shall be appointed by the mayor, with the advice and consent of the town council. The town council may fix per diem compensation for the members of the land use appeal authority panel by resolution, based on necessary and reasonable expenses for meetings actually attended. All members of the land use appeal authority panel shall reside within the town limits, and are deemed to have resigned if they move their residence from the town limits. In no event shall a member of the land use appeal authority vote on, or decide, an issue on appeal for which they were the land use authority, or a member of the land use authority. There may be multiple land use appeal authorities with specified or general authority to hear different types of issues.

(Ord., 1-18-2005; amd. Ord. 20-02, 3-17-2020; Ord. 25-01, 2-18-2025)

   Each member of the land use appeal authority panel shall serve for a term of one (1) year, or until a successor is appointed and qualified; provided, that the term of the members of the first authority so appointed shall be such that the term of one member shall expire each year. Vacancies shall be filled in the same manner as the original appointment for the balance of the unexpired term.

(Ord., 1-18-2005; amd. Ord. 20-02, 3-17-2020; Ord. 25-01, 2-18-2025)

   Any land use appeal authority panel member who is absent for two (2) consecutive regularly scheduled meetings, or a total of four (4) regularly scheduled meetings per year, may be called before the town council and asked to resign or be removed for cause by the town council.

(Ord., 1-18-2005; amd. Ord. 20-02, 3-17-2020; Ord. 25-01, 2-18-2025)

   A.   Chairperson: The land use appeal authority panel shall, when applicable, elect a chairperson and may adopt such rules for its own proceedings as are deemed necessary.

   B.   Quorum: No business shall be conducted by a land use appeal authority panel unless at least three (3) members of the panel, not counting the alternates, are present.

(Ord., 1-18-2005; amd. Ord. 20-02, 3-17-2020; Ord. 25-01, 2-18-2025)

   Meetings of the land use appeal authority panel shall be held at the call of the chairperson and at such other times as the land use appeal authority may determine. The chairperson of the land use appeal authority panel, or in the chairperson's absence, the acting chairperson, may administer oaths and compel the attendance of witnesses at such meetings, and all meetings shall be open to the public. The land use appeal authority shall keep minutes of its proceedings showing the roll call of votes upon all questions or, if a member is absent or fails to vote, indicating such fact, and shall keep records of its examinations and other official actions, all of which shall be filed in the office of the town recorder and shall be public record. All meetings and hearings will be posted and noticed (in the case of hearings) as per section 9-1-6 of this title. An annual schedule of meetings will be published at least once annually, in a newspaper of general circulation in the town. The schedule may state that some meetings may be canceled upon twenty four (24) hours of posted notice if the meeting is not necessary or required.

(Ord., 1-18-2005; amd. Ord. 20-02, 3-17-2020; Ord. 25-01, 2-18-2025)

   A.   The scope of review for factual matters on appeal of decisions by the land use authority shall be on the record created before the land use authority and not de novo. The appeal authority shall:

      1.   Determine whether the record on appeal includes substantial evidence for each essential finding or fact.

      2.   Determine the correctness of the land use authority's interpretation and application of the plain meaning of the land use regulations.

      3.   Interpret and apply a land use regulation to favor a land use application unless the land use regulation plainly restricts the land use application.

   B.   See Utah Code Annotated section 10-9a-707. The land use appeal authority is created to hear four (4) classifications of cases as follows:

      1.   Variance Applications: Whenever any application or permit has been stayed or denied by the planning commission on the basis that approval of the requested permit or application would violate the provisions of this title relating to setback, building height, side yard, lot size, site requirements, parking requirements, or some similar provision of this title that has the effect of depriving the applicant of the reasonable use of his property when others similarly situated are entitled to make such use of their property, the land use appeal authority may hear the matter, and grant a variance from the strict enforcement of this title. A variance is defined in greater detail in Utah Code Annotated section 10-9a-702, as amended.

      2.   Modifications Of Nonconforming Uses: The land use appeal authority shall have the power to rule on all requests for enlargements, modifications, or changes in the character of any nonconforming use, and to have hearings to determine whether the use in question is in fact a nonconforming use as opposed to a violation of this title or an allowable use within the zone. Nonconforming uses are further addressed in section 9-1-23 of this title.

      3.   Appeals: The land use appeal authority shall hear and decide appeals of the land use authority as further described in section 9-1-16 of this title where it is alleged that there is an error in any order, requirement, decision or determination made by the land use authority including the planning commission in the enforcement of Utah Code Annotated title 10, chapter 9a, as amended, or any town ordinance adopted pursuant thereto.

      4.   Special Exceptions: The land use authority may hear applications for special exceptions to the terms of this title which apply to variances, modifications of nonconforming uses, appeals and other matters upon which the land use authority is required to pass judgment under this title.

      5.   The land use appeal authority shall not hear an appeal of the land use authority administering or interpreting any geologic hazard ordinance of the town which shall be heard by a panel of experts pursuant to Utah Code Annotated section 10-9a-703(2).

(Ord., 1-18-2005; amd. Ord. 20-02, 3-17-2020; Ord. 25-01, 2-18-2025)

   Variances from the provisions of this title may be granted by the land use appeal authority as per Utah Code Annotated section 10-9a-702, as amended, whenever a strict or literal application of the provisions of this title would create a hardship on the owner of the subject property that is unique to that property. Because of the agricultural development of the town over a long period of time before development codes were enacted by Box Elder County or the town, which has resulted in a number of irregular lots, encroachment by public streets and facilities, and the access problems inherent in the area because of these misplaced streets and steep grades, watercourses and other geographic problems inherent in a rural agricultural environment, the land use appeal authority may exercise broad discretion in acting on variances to assure the public and the owners of property on which variances are requested that substantial equity results from land use appeal authority actions (including equality of past land use appeal authority rulings). Variances shall be granted when the strict application of this title would:

   A.   Deprive the owner of the property in question of the substantial property rights and privileges available to others owning similar property within the same zone; and

   B.   The deprivation results from conditions on the property, including irregular lot size, lot shape, access, presence of easements or rights of way across the property, including nonplatted but existing public streets, or similar factors not of general application to other properties in the zone and not from conditions created by the applicant; and

   C.   The granting of the variance would not be detrimental to the public health and safety or contrary to the general plan of the town, and strict adherence to the letter of this title will cause hardships, the imposition of which is not necessary in order to carry out the general purpose of the plan.

(Ord., 1-18-2005; amd. Ord. 20-02, 3-17-2020; Ord. 25-01, 2-18-2025)

   A letter of application for variance review must be filed with the town clerk or town recorder, and the required fee paid in advance. The application shall state the nature of the hardship and the nature of the variance requested. If the request for a variance is a result of a denial of any building permit approval, the application shall so state, and all documents on file concerning the matter shall be forwarded to the board for review as a part of the request. The applicant or the town may present any information as might be reasonably required by the land use appeal authority in evaluating the request.

(Ord., 1-18-2005; amd. Ord. 20-02, 3-17-2020; Ord. 25-01, 2-18-2025)

   The land use appeal authority shall, upon receipt of the letter of application for a variance, or an appeal from the land use authority, schedule a date for hearing on the matter. The hearing date shall be no less than fifteen (15) days, nor more than thirty (30) days from the date of application or appeal. Notice shall be given to adjoining landowners in the manner described in chapter 1 of this title, and in addition, notice of hearing shall be published at least once prior to the date of the hearing in a newspaper having general circulation in the town.

(Ord., 1-18-2005; amd. Ord. 20-02, 3-17-2020; Ord. 25-01, 2-18-2025)

   At the hearing on any matter before the land use appeal authority, any person aggrieved or interested in the matter may appear in person or through his attorney to provide public comment on the matter. The applicant shall have the right to respond to testimony offered in opposition to the application.

(Ord., 1-18-2005; amd. Ord. 20-02, 3-17-2020; Ord. 25-01, 2-18-2025)

   In exercising the above mentioned powers, the land use appeal authority may, in conformity with the provisions of this title, reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from and may make such order, requirement, decision or determination as ought to be made, and to that end shall have all the powers of the official or land use appeal authority from whom the appeal is taken. All decisions of the land use appeal authority shall be in writing which explains the basis of the decision.

(Ord., 1-18-2005; amd. Ord. 20-02, 3-17-2020; Ord. 25-01, 2-18-2025)

   The concurring vote of the majority of the quorum convened of the land use appeal authority panel, or a written ruling from the town council, shall be necessary to reverse any order, requirement or determination of any such administrative official or board, or to decide in favor of the applicant on any matter upon which it is required to pass under any such ordinance or to effect any variation in such ordinance.

(Ord., 1-18-2005; amd. Ord. 20-02, 3-17-2020; Ord. 25-01, 2-18-2025)

   The land use appeal authority is a quasi-judicial body. Because of the unique factors in the platting and recording of the older portions of the town, and the fact that many times existing public streets encroach on platted lots, or that platted lots may be on or adjacent to platted but unopened streets or other agricultural rights of way, the powers of the land use appeal authority shall be liberally construed to grant the flexibility reasonably necessary to enable the owners of property within the affected parts of the town reasonable opportunities to develop that property to the same extent as others similarly situated within the zone, but without the unique site constraints affecting the applicant's site under the standards in Utah Code Annotated section 10-9a-702. The appellant has the burden of proving the land use authority erred.

(Ord., 1-18-2005; amd. Ord. 20-02, 3-17-2020; Ord. 25-01, 2-18-2025)

   The town or any person aggrieved by any decision of the land use appeal authority may have and maintain a plenary action for relief therefrom in the district court in Box Elder County, provided petition for such relief is presented to the court within thirty (30) days after the land use authority issues its written decision. The town council may not override a decision properly made by the land use appeal authority.

(Ord., 1-18-2005; amd. Ord. 20-02, 3-17-2020; Ord. 25-01, 2-18-2025)