1. Legal Authority. Pursuant to Utah Code Annotated Section 10-9a-701, the City is required to establish one or more appeal authorities to hear and decide requests for variances from the terms of the land use ordinances of the City, appeals from decisions applying the land use ordinances of the City, and appeals from a fee changed in accordance with U.C.A. §10-9a-510. The timely and specific appeal to the appeal authority described in this chapter, and the exhaustion of administrative remedies, shall be conditions precedent to judicial review of any decision.
2. Creation of Appeal Authority, Qualification, Selection. The City creates the position of Land Use Hearing Officer (the “Hearing Officer”) as an appeal authority for the City. The City may appoint one or more Hearing Officers to ensure availability as required for the efficient disposition of appeals brought under this title. The City Council shall continue to act as an appeal authority where expressly required by this Title; all other matters shall be heard by the Hearing Officer.
3. The Hearing Officer shall be appointed by the Mayor with the advice and consent of the City Council.
4. The Hearing Officer shall be or have been a profession in law, land use, or public administration, and shall have the knowledge, training and experience necessary to effectively conduct administrative hearings regarding variances and appeals of land use decisions, including knowledge and familiarity with the requirements of constitutional due process.
5. The Hearing Officer shall not be a member of the City Council, Planning Commission, City Staff, or any other elected or appointed official of the City.
6. The Hearing Officer shall serve for a term of one year, or as defined in a written agreement with the City. The initial term may be extended from time to time by the Mayor. The Hearing Officer serves at the pleasure of the City; and with the advice and consent of the City Council may be dismissed by the Mayor with or without cause.

HISTORY

Ord. No. 97-19, Enacted, 4/17/1997

Ord. No. 97-35, Recodified, 6/19/1997

Ord. No. 04-69, Recodified, 12/16/2004

Ord. No. 17-13, Amended, 6/15/2017

1. Powers and Duties. The Hearing Officer shall have all the powers and duties prescribed by law and by this title, including to hear and decide appeals from decisions applying the City’s land use ordinance, requests for variances from the terms of the land use ordinance, and appeals from any fee imposed by the City under this title. The Hearing Officer shall act in a quasi-judicial matter, and consistent with the requirements of this Chapter, shall serve as the City’s final arbiter of issues involving land use ordinances as described in this title.
2. Except as otherwise provided herein, the Hearing Officer is authorized to hear and decide appeals from any final order, requirement, determination or decision of the Zoning Administrator, the Community and Economic Development Director or the Planning Commission related to the application of the zoning ordinance.
3. The Hearing Officer may not hear or decide an appeal of any legislative act of the City Council, including without limitation, zoning ordinance amendments. Except as expressly provided in the sections below on variances, the Hearing Officer may not waive or modify the terms or requirements of the zoning ordinance.

HISTORY

Ord. No. 97-19, Enacted, 4/17/1997

Ord. No. 97-35, Recodified, 6/19/1997

Ord. No. 04-69, Recodified, 12/16/2004

Ord. No. 17-13, Amended, 6/15/2017

1. Hearings, Rules and Decisions. Hearings before the Hearing Officer are convened on a case by case basis when the City Recorder has received an application for a variance or a notice of appeal of a land use decision. Upon the filing of an appeal, the Director of Community and Economic Development Department shall forthwith transmit to the Hearing Officer all the papers constituting the record upon which the action appealed from was taken.
2. The Hearing Officer may adopt rules for the regulation of his/her procedures and the conduct of his/her duties. Such rules shall be consistent with state law and with the provisions of this code, and shall be approved by the City Manager.
3. The Hearing Officer may administer oaths and compel the attendance of witnesses.
4. All meetings of the Hearing Officer shall comply with the requirements of the Utah Open and Public Meetings Act, U.C.A. §52-4-101, et seq.
5. Decisions of the Hearing Officer become effective on the date the Hearing Officer issues a written decision, unless a different time is designated at the time the decision is made.
6. Any decision of the Hearing Officer shall be served on all parties to the proceeding, and may be posted as required for public notice.

HISTORY

Ord. No. 97-19, Enacted, 4/17/1997

Ord. No. 97-35, Recodified, 6/19/1997

Ord. No. 04-69, Recodified, 12/16/2004

Ord. No. 17-13, Amended, 6/15/2017

1. Appeals Process, Notice of Appeal. The applicant, a board or officer of the City, or any person adversely affected by a decision administering or interpreting a land use ordinance may, within ten days of the date of the final decision, appeal that decision to the Appeal Authority by alleging that there is error in any order, requirement, decision, or determination made by the Land Use Authority in the administration or interpretation of the land use ordinance. The appeal shall be filed, in writing, with the office of the City Recorder, and shall state with specificity the reasons for the appeal.
2. An appellant or adversely affected party must first present to the Land Use Authority any and all information pertinent to its land use application or request. On appeal, the appellant may not bring new information for consideration by the Hearing Officer that has not first been presented to the Land Use Authority during its consideration of the matter.
3. An appellant or adversely affected party shall present to the Hearing Officer every theory for relief that it can raise in district court.
4. An appellant or adversely affected party bears the burden to prove, by substantial evidence, that there is error in any order, requirement, decision, or determination in the administration or interpretation of the land use ordinance.
5. The Hearing Officer shall presume that the decision that is being appealed is correct, and shall only modify the decision if there is substantial evidence presented to the Hearing Officer that the Zoning Administrator, the Community and Economic Development Director or Planning Commission erred in its application or interpretation of the land use ordinances.
6. When presented with legal issues, the Hearing Officer shall apply a correctness standard to its review. Inasmuch as no specialized knowledge is necessary to make such a determination, no deference is given to the Land Use Authority.
7. When presented with factual issues, the Hearing Officer shall apply an arbitrary and capricious standard to its review, and the decision of a Land Use Authority shall not be disturbed if there is substantial evidence in the record that discloses a reasonable basis for its decision. Inasmuch as land use authorities and administrative officials have specialized knowledge in the field of planning and land use and are expected to implement the goals and policies of the City, they should be allowed a comparatively wide latitude of discretion. Their decisions should be disturbed only if the Hearing Officer determines that the decision is arbitrary, capricious or illegal.
8. An appeal stays all proceedings in the action that is the subject of the appeal. In the event a stay would cause imminent peril to life or property, the party seeking protection from imminent peril may seek an expedited ruling from the Hearing Officer or may seek immediate relief from the district court.
9. Proceedings and hearings before the Hearing Officer shall be in conformance with the general principles of due process.
10. The person or entity filing the appeal may appear at such hearing in person, by agent, or by an attorney of his/her choice and may present to the Hearing Officer any evidence or argument to support the contentions on appeals.
11. The Land Use Authority that rendered the decision that is being appealed shall appear and present any evidence or argument it finds necessary to justify its decision.
12. The Hearing Officer shall cause a record of its proceedings to be kept, including a recording of all evidentiary proceedings and all oral arguments of the parties, and shall make written findings and conclusions of all of its decisions.
13. Review of the Land Use Authority’s Record. The Hearing Officer’s review of any decision of a Land Use Authority shall be confined to the administrative record developed by the Land Use Authority, unless the Hearing Officer determines that the record is incomplete or deficient. If the Hearing Officer determines that the record is incomplete or deficient, the Hearing Officer may review the matter de novo.

HISTORY

Ord. No. 97-19, Enacted, 4/17/1997

Ord. No. 97-35, Recodified, 6/19/1997

Ord. No. 04-69, Recodified, 12/16/2004

Ord. No. 17-13, Amended, 6/15/2017

1. There is hereby created the office of Zoning Administrator. This position and authority shall be exercised by one appointed by the City Manager.
2. The Zoning Administrator is hereby authorized to decide certain matters, as designated by the Land Use Hearing Officer, that are consistent with the guidelines established by this Title and state law and the rules adopted by the Land Use Hearing Officer. Pursuant to that authority the Zoning Administrator may decide all cases which are routine in nature, uncontested, that do not impact the character of the neighborhood, are primarily brought about by recent changes in the zoning ordinance, or City initiated development or construction that has resulted in the creation of noncomplying structures. The specific types of decisions the Zoning Administrator is authorized to make shall include:
3. The determination of a nonconforming use which can be verified by substantial evidence. Substantial evidence, for the purpose of this Section shall mean official documents, including any written correspondence, receipts, permits, or documents issued by a public body or agency thereof, etc., that may establish the truth of the matter asserted by the applicant;
4. Consider additions or alterations to existing buildings and structures, which are noncomplying as to height, area, or yard regulations, providing that the addition follows the existing wall lines and no additional dwelling units are added to the building or structure;
5. Change in the status of a nonconforming use to a less intense use than that immediately preceding the proposed use;
6. Final review and approval on plans where the Land Use Hearing Officer has required that a final plan be submitted for special approval, showing that all requirements imposed by the Land Use Hearing Officer in granting the original approval have been complied with; and
7. The granting of a variance in the very limited instance wherein the applicant and the City are in complete agreement regarding all issues, and that the spirit and intent of the Layton City zoning ordinance is satisfied and that all criteria required statutorily for variance have also been satisfied.
8. The notice requirements established by the ordinance, that are required before a hearing on a variance, must still be satisfied by the Zoning Administrator. However, in lieu of giving notice of a time, date, and place of a hearing, the Zoning Administrator's notice shall provide for a time frame within which all interested parties may submit their input to the Zoning Administrator. All responses received pursuant to the notice shall become a permanent part of the file.
9. A decision of the Zoning Administrator may be appealed to the Land Use Hearing Officer as provided for in this Chapter.

HISTORY

Ord. No. 97-19, Enacted, 4/17/1997

Ord. No. 97-35, Recodified, 6/19/1997

Ord. No. 04-69, Recodified, 12/16/2004

Ord. No. 17-13, Amended, 6/15/2017

1. In enacting the zoning ordinance, the City Council has given jurisdiction to the Land Use Hearing Officer to hear and decide certain specified special exceptions to the provisions of the zoning ordinance.
2. The Land Use Hearing Officer may hear and decide special exceptions only if authorized to do so by the zoning ordinance and based only on the standards contained in the zoning ordinance.

HISTORY

Ord. No. 97-19, Enacted, 4/17/1997

Ord. No. 97-35, Recodified, 6/19/1997

Ord. No. 04-69, Recodified, 12/16/2004

Ord. No. 17-13, Amended, 6/15/2017

1. Variances. Any person or entity desiring a waiver or modification of the requirements of this title as applied to a parcel of property that such person owns, leases or in which such person holds some other beneficial interest may apply to the Hearing Officer for a variance from the terms of this Title.
2. The appeal authority may grant a variance only if:
3. literal enforcement of the ordinance would cause an unreasonable hardship for the applicant that is not necessary to carry out the general purpose of the land use ordinances;
4. there are special circumstances attached to the property that do not generally apply to other properties in the same zone;
5. granting the variance is essential to the enjoyment of a substantial property right possessed by other property in the same zone;
6. the variance will not substantially affect the general plan and will not be contrary to the public interest; and
7. the spirit of the land use ordinance is observed and substantial justice done.
8. In determining whether or not enforcement of the land use ordinance would cause unreasonable hardship under Subsection (1)(a), the appeal authority may not find an unreasonable hardship unless the alleged hardship:
9. is located on or associated with the property for which the variance is sought; and
10. comes from circumstances peculiar to the property, not from conditions that are general to the neighborhood.
11. In determining whether or not enforcement of the land use ordinance would cause unreasonable hardship under Subsection (1)(a), the appeal authority may not find an unreasonable hardship if the hardship is self-imposed or economic.
12. In determining whether or not there are special circumstances attached to the property under Subsection (1)(a), the appeal authority may find that special circumstances exist only if the special circumstances:
13. relate to the hardship complained of; and
14. deprive the property of privileges granted to other properties in the same zone.
15. The applicant shall bear the burden of proving that all conditions justifying a variance have been met.
16. Variances run with the land.
17. The appeal authority may not grant a use variance.
18. In granting a variance, the appeal authority may impose additional requirements on the applicant that will:
19. mitigate any harmful effects of the variance; or
20. serve the purpose of the standard or requirement that is waived or modified.

HISTORY

Ord. No. 97-19, Enacted, 4/17/1997

Ord. No. 97-35, Recodified, 6/19/1997

Ord. No. 04-69, Recodified, 12/16/2004

Ord. No. 17-13, Amended, 6/15/2017

1. Effective Date – Final Decision – Appeal to District Court. The decision of the Hearing Officer shall take effect on the date when it issues a written decision, or at a different time as may be designated in the written decision. A written decision of the Hearing Officer constitutes a final decision under U.C.A §10-9a-801(2)(a) and §10-9a-801(4). A person adversely affected by a final decision of the Hearing Officer shall file a petition for review with the District Court within 30 days after the date of the decision.
2. Ex Parte Communications – Penalty. It shall be unlawful for any individual, including the party bringing the appeal or requesting a variance, to discuss substantive matters pertaining to a pending appeal or variance with the Hearing Officer. Violation of this section shall be a Class C Misdemeanor. The requirements of the section shall not apply to proceedings and communications during a properly scheduled public meeting or hearing for consideration of the appeal or variance, communications where all parties are present and given an opportunity to speak, or to a discussion limited to procedural matters not related to the substance of the proceedings, such as the date, time or place of the hearing.
3. Governmental Immunity. The Hearing Officer shall be considered an appointed official and shall be entitled to all of the protections of the Utah Governmental Immunity Act.
4. Compensation – Contract. Terms for compensation and reimbursement shall be memorialized by written contract with the Administrative Hearing Officer. The written contract required by this section shall be approved and adopted by the City Manager.
5. District Court Review of Appeal Authority Decisions. Any person adversely affected by any decision of the Hearing Officer may petition the district court for a review of the decision.
6. No person may file a petition for review of the Hearing Officer’s decision unless he/she has first exhausted his/her administrative remedies.
7. The petition to the district court may allege only that the Hearing Officer’s decision was arbitrary, capricious, or illegal.
8. The petition shall be filed within 30 days after the Hearing Officer’s decision. However, the time for filing an appeal to the district court is stayed by the filing of a request for arbitration of a constitutional taking issue with the Utah Property Rights Ombudsman under U.C.A. §13-43204; in which event, a petition shall be filed within 30 days after completion of proceedings before the Ombudsman.
9. The Hearing Officer shall transmit to the district court the record of its proceedings including a transcript of all proceedings, all documentary evidence received at the hearing, and a copy of the Hearing Officer’s rulings, findings, and orders. The transcript shall be made by a person authorized to make certified transcripts of recorded proceedings, and shall bear a certification that the transcript is a true and correct copy of the proceedings before the Hearing Officer.
10. If a transcript is made of the proceedings before the Hearing Officer, the district court’s review is limited to the record. The district court shall affirm the decision of the Hearing Officer if the decision is supported by substantial evidence in the record and is not arbitrary, capricious, or illegal.
11. If there is no record of the proceedings before the Hearing Officer, the appeal to the district court shall be a de novo appeal.
12. The district court may hear only those issues and theories for relief that are raised in the proceedings before the Hearing Officer.
13. The filing of a petition with the district court does not stay the decision of the Hearing Officer unless the Hearing Officer determines, in writing, that a stay is in the best interests of the City or that enforcement of the ruling would cause imminent peril to life or property. This section shall not preclude a party from seeking a stay from the district court.
14. The court shall affirm the decision of the Hearing Officer if the decision is supported by substantial evidence in the record and is not arbitrary, capricious, or illegal.
15. The Community and Economic Development Director may develop a graphical matrix to show the powers and duties of each Land Use Authority within the City, the appeal authority for decisions of the Land Use Authority, and the time for appeal of any decision.

HISTORY

Ord. No. 97-19, Enacted, 4/17/1997

Ord. No. 97-35, Recodified, 6/19/1997

Ord. No. 04-69, Recodified, 12/16/2004

Ord. No. 17-13, Amended, 6/15/2017