Fillmore City Zoning Code

The Appeal Authority shall consist of an individual or group of individuals contracted with Fillmore City or appointed by Fillmore City to hear and decide appeals regarding decisions on a land use. application or a variance. (Ord. 23-11, 7-6-2023)

   A.   Chairperson; Rules: The Appeal Authority shall organize and elect a Chairperson. If the Appeal Authority is made up of one contracted person, that person shall act as Chairperson. The Appeal Authority may adopt rules for its own proceedings as it deems necessary.

   B.   Meetings: The Appeal Authority shall meet at the call of the Chairperson and at any other times that the Appeal Authority determines.

   C.   Oaths; Attendance of Witnesses: The Chairperson, or in the absence of the Chairperson, the Acting Chairperson, may administer oaths, and compel the attendance of witnesses.

   D.   Open Meetings: All meetings of the Appeal Authority shall comply with the requirements of Utah Code Ann. § 52-4, Open and Public Meetings, or any successor statute enacted in its place.

   E.   Minutes; Records: The Appeal Authority shall keep minutes of its proceedings, showing the vote of each member upon each question, or if absent or failing to vote, indicating that fact; and keep records of its examinations and other official actions. The Appeal Authority may, but is not required to, have its proceedings contemporaneously transcribed by a court reporter or a tape recorder. The Appeal Authority shall file its records in the Office of the City Recorder, which shall be the Office of the Appeal Authority. All records in the Office of the Appeal Authority are public records.

   F.   Decision Effective: Decisions of the Appeals Authority become effective at the meeting in which the decision is made, unless a different time is designated in the rules or at the time the decision is made. (Ord. 23-11, 7-6-2023)

The powers and duties of the Appeal Authority shall be to hear and decide the following:

   A.   Requests for variances from the terms of land use ordinances;

   B.   Appeals from land use decisions applying land use ordinances; and

   C.   Appeals from a fee charged in accordance Utah Code Annotated. § 10-9a-510. (Ord. 23-11, 7-6-2023)

   A.   Scope And Authority:

      1.   The applicant or any other person or entity adversely affected by a decision administering or interpreting a land use may appeal that decision applying the land use ordinance by alleging that there is error in any order, requirement, decision or determination made by an official in the administration or interpretation of the land use ordinance.

      2.   Any person, including any officer, department, board or bureau of the City affected by a decision administering or interpreting a land use ordinance or affected by the grant or refusal of a building permit or by any other decisions of the Land Use Authority in the administration or interpretation of the land use ordinance may appeal such decision to the Appeal Authority. An appeal must be made within thirty (30) days from the date of such decision by filing with the City Recorder a written notice of appeal specifying the grounds thereof. When an appeal is taken from a decision of the Land Use Authority, the Planning and Zoning Administrator shall forthwith transmit to the Appeal Authority all papers, if any, constituting the record upon which the action appealed from was taken.

      3.   An appeal filed in accordance with this section stays all proceedings in the appeal action, unless the officer from whom the appeal is taken certifies to the Appeal Authority that by reason of facts stated in the certificate the stay would in his/her opinion cause imminent peril to life or property. In such cases, proceedings shall not be stayed otherwise than by restraining order which may be granted by the Appeal Authority or by the District Court on application and notice and on due cause shown.

      4.   The Appeal Authority shall fix the time for hearing any appeal within fifteen (15) days of the date of filing such appeal with the City Recorder and shall give public notice thereof in accordance with the Utah Open and Public Meetings Act, as well as notice to the parties in interest.

      5.   Proceedings and hearings before the Appeal Authority shall be had pursuant to rules adopted by the Appeal Authority and in conformance with general principles of due process. Any party in interest may appear at such hearing in person, by agent, or by an attorney of his/her choice.

      6.   The person or entity making the appeal has the burden of proving that an error has been made.

      7.   The person or entity making the appeal must pay the fee as set by the fee schedule before a hearing shall be set.

   B.   Permitted, Prohibited Appeals:

      1.   Only decisions applying the land use ordinance, as set forth in section 10-3-2, of this title may be appealed to the Appeal Authority.

      2.   A person may not appeal to the Appeal Authority, and the Appeal Authority may not consider, any land use ordinance amendments.

      3.   The City Council shall hear and decide appeals for decisions regarding Administrative Conditional Uses and Conditional Uses.

   C.   Waivers Or Modifications Not Permitted: Appeals may not be used to waive or modify the terms or requirements of the land use ordinance. (Ord. 23-11, 7-6-2023)

Any person or entity desiring a waiver or modification of the requirements of the land use ordinance as applied to a parcel of property that he/she owns, leases, or in which he/she holds some other beneficial interest may apply to the Board of Adjustment for a variance from the terms of the land use ordinance. (Ord. 23-11, 7-6-2023)

   A.   Conditions: The Board of Adjustment may grant a variance only if each of the following conditions are met:

      1.   Literal enforcement of the land use ordinance would cause an unreasonable hardship for the applicant that is not necessary to carry out the general purpose of the land use ordinance;

      2.   There are special circumstances attached to the property that do not generally apply to other properties in the same district;

      3.   Granting the variance is essential to the enjoyment of a substantial property right possessed by other property in the same district;

      4.   The variance will not substantially affect the General Plan and will not be contrary to the public interest; and

         a.   The spirit of the land use ordinance is observed and substantial justice done.

   B.   Unreasonable Hardship: In determining whether or not enforcement of the land use ordinance would cause unreasonable hardship under subsection A of this section, the Board of Adjustment may not find an unreasonable hardship unless the alleged hardship:

   C.   Self-Imposed Hardship: In determining whether or not enforcement of the land use ordinance would cause unreasonable hardship under subsection A of this section, the Board of Adjustment may not find an unreasonable hardship if the hardship is self-imposed or economic.

   D.   Special Circumstances: In determining whether or not there are special circumstances attached to the property under subsection A of this section, the Board of Adjustment may find that special circumstances exist only if the special circumstances:

      1.   Relate to the hardship complained of; and

      2.   Deprive the property of privileges granted to other properties in the same district.

   E.   Burden Of Proof: The applicant shall bear the burden of proving all of the conditions justifying a variance have been met.

   F.   Run With Land: Variances run with the land.

   G.   Use Variances Not Permitted: The Board of Adjustment and any other body may not grant use variances.

   H.   Additional Requirements May Be Imposed: In granting a variance, the Board of Adjustment may impose additional requirements on the applicant that will:

      1.   Mitigate any harmful effects of the variance; or

      2.   Serve the purpose of the standard or requirement that is waived or modified. (Ord. 23-11, 7-6-2023)

The building official shall not issue any building permit for any building, construction or repair of any building unless such fully conforms to all land use ordinances and regulations of this Municipality in effect at the time of application. No permit shall issue for any building or structure or part thereof on any land located between the mapped lines of any street as shown on any official streets map adopted by the Governing Body. (Ord. 23-11, 7-6-2023)

Before any application for a variance or building permit is heard by the Appeal Authority, the Board of Adjustment shall give the City at least fifteen (15) days’ notice of any hearing to consider the application. (Ord. 23-11, 7-6-2023)

   A.   Petition: Any person adversely affected by any decision of the Appeal Authority may petition the District Court for a review of the decision in accordance with Utah Code Annotated section 10-9a-801 et seq. If there is no Appeal Authority designated in section 10-3-2 of this title, then any person adversely affected by a decision may directly petition the District Court for a review of the decision.

   B.   Permitted Allegations: In the petition, the plaintiff may only allege that the Appeal Authority’s decision was arbitrary, capricious or illegal.

   C.   Time Limit: The time limit for filing a petition to the District Court shall be as provided in Utah Code Annotated section 10-9a-801.

   D.   Records Submitted To Court:

      1.   The Appeal Authority shall transmit to the District Court the record of its proceedings including its minutes, findings, orders and, if available, a true and correct transcript of its proceedings.

      2.   If the proceeding was taped, a transcript of that tape recording is a true and correct transcript for purposes of this subsection.

   E.   Limitation Of Review:

      1.   If there is a record, the District Court’s review is limited to the record provided by the Appeal Authority.

      2.   The court may not accept or consider any evidence outside the Appeal Authority’s record unless that evidence was offered to the Appeal Authority and the court determines that it was improperly excluded by the Appeal Authority.

      3.   If there is no record, the court may call witnesses and take evidence.

   F.   Affirmation Of Appeal Authority Decision: The court shall affirm the decision of the Appeal Authority if the decision is supported by substantial evidence in the record.

   G.   Stay Of Appeal Authority Decision:

      1.   The filing of a petition does not stay the decision of the Appeal Authority.

         a.   Before filing a petition under this section or a request for mediation or arbitration of a constitutional taking issue, the aggrieved party may petition the Appeal Authority to stay its decision.

         b.   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 City.

         c.   After a petition is filed under this section or a request for mediation or arbitration of a constitutional taking issue is filed under the Utah State Code, the petitioner may seek an injunction from the District Court staying the Appeal Authority’s decision. (Ord. 23-11, 7-6-2023)