The purpose of this chapter is to establish the reviewing body, powers, and procedures for appeals and variances of land use decisions.

1. Reviewing Bodies.
   
   

   	Appeal Authority
   Variance	Appointed Administrative Hearing Officer
   Appeal of Administrative Decision	Appointed Administrative Hearing Officer
   Appeal of Conditional Uses	Appointed Administrative Hearing Officer
   Building Permit	Administrative Law Judge See CCNO 1.8

1. The Mayor, with the consent of the City Council, shall appoint an AHO to preside at administrative hearings.
2. The AHO shall serve for a term of two (2) years and, during that two (2) year term, shall be subject to removal by the Mayor only for cause.
3. Cause for removal may be for any conduct unbecoming a hearing officer as determined by the City Council, dereliction of assigned duties, the existence of a bias or conflict of interest that might affect impartiality of decisions or the failure of the City Council to appropriate funding for the AHO position.
4. The AHO may appeal a removal for cause to the City Council which shall uphold the removal if there is substantial evidence to support the Mayor's decision.
5. A person appointed to serve as an AHO shall either be law trained or have significant experience with the requirements and operation of administrative hearing processes. The person appointed shall be free from any bias or conflict of interest that might affect impartiality of decisions.
6. An AHO is subject to disqualification for bias, prejudice, interest, or any other reason for which a judge may be disqualified in a court of law.

1. An AHO shall have authority to hold an administrative hearing for violations of this Title as authorized by the legislative body.
2. An AHO may continue a hearing for good cause shown by one of the parties or if the administrative hearing officer independently determines that due process has not been adequately afforded to a party.
3. Where specifically authorized by municipal ordinance, the administrative law judge and/or AHO shall have the authority to reverse or modify the decision of a city official.
4. An AHO has continuing jurisdiction over the subject matter of an administrative hearing for the purposes of: granting a continuance or modifying an administrative decision.
5. An AHO shall not make any order that would require or allow a responsible person to violate state law or city ordinance.

1. Administrative hearings are intended to be informal in nature. Formal rules of evidence and discovery shall not apply; however, upon request made in writing reasonably in advance of a hearing, the city shall provide to a responsible person requesting a hearing the opportunity to review documents, photographs or other tangible evidence it intends to present at the hearing and shall provide a list of the witnesses it intends to call at the hearing. Failure to request discovery shall not be a basis for a continuance. Complainant information shall not be disclosed or released unless the complainant is a witness at the hearing.
2. Administrative hearings shall be held in person or virtually at city hall, open to the public and shall be recorded by audiotape.
3. The responsible person shall have the right to be represented by an attorney or other advocate. If an attorney will be representing a responsible person at a hearing, notice of the attorney's name, address, and telephone number should be given to the city attorney at least one day prior to the hearing. If such notice is not given, the hearing may be continued at the city's request, and all costs of the continuance shall be assessed to the responsible person.
4. The burden to prove any raised defenses shall be upon the party raising any such defense and shall be established by a preponderance of the evidence.
5. The administrative hearing officer(s) shall conduct all hearings in accordance with the Open and Public Meetings Act UCA 52-4 et seq.

1. Authority. The applicant, or any other person or entity adversely affected by a decision of a city official administering or interpreting this Title, except the denial or granting of a conditional use permit, may appeal that decision applying this Title by alleging that there is error in any order, requirement, decision or determination made.
2. Time Limit. Any person or entity adversely affected by decisions administering or interpreting this Title shall appeal the decision within ten days from the date of the decision. The AHO shall have no jurisdiction to hear untimely appeals.
3. Application. The request for an administrative hearing shall be made in writing on a form provided by the City and submitted to the City Recorder with any requisite fees as adopted by the City Council.
4. City Appeal. Any officer, department, board or bureau of the city affected by the grant or refusal of a land use permit or by any other decisions of the administrative officer in the administration or interpretation of this Title may appeal the decision ten days from the date of the decision. The AHO shall have no jurisdiction to hear untimely appeals.
5. Burden of Proof. The person or entity making the appeal has the burden of proving that an error has been made.
6. Decisions Applicable. Only decisions applying this Title may be appealed to AHO.
7. Waiver or Modification Not Applicable. The AHO has no authority to waive or modify the terms or requirements of this Title.
8. Decision of AHO; Power and Authority. The AHO may, in conformity with the provisions of this chapter, reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination from which the appeal is taken.
9. Standard of Review. All processing and decisions shall be derived from the written record. The local appeal shall be de novo and any review following shall be on the record.
10. Final Record of Decision. A decision is considered final on the date that the administrative hearing officer prepares written findings of fact and conclusions of law and submits them to the appellant and the City.

1. Application. Any person or entity desiring a waiver or modification of the requirements of this Title as applied to a parcel of property that that person owns, leases or in which that person holds some other vested interest may apply to the AHO for a variance from the terms of the zoning ordinance.
2. Findings Required. The AHO may grant a variance only if all five (5) of the following findings are made:
   1. Literal enforcement of this Title would cause an unreasonable hardship for the applicant that is not necessary to carry out the general purpose of this Title; and
   2. There are special circumstances attached to the property that do not generally apply to other properties in the same district; and
   3. Granting the variance is essential to the enjoyment of a substantial property right possessed by other property in the same district; and
   4. The variance will not substantially affect the General Plan and will not be contrary to the public interest; and
   5. The spirit of this Title is observed and substantial justice is done.
3. Conditions of Unreasonable Hardship. In determining whether or not enforcement of this Title would cause unreasonable hardship under subsection B of this section, the AHO may not find an unreasonable hardship unless the alleged hardship:
   1. Is located on or associated with the property for which the variance is sought; and
   2. Comes from circumstances peculiar to the property, not from conditions that are general to the neighborhood.
4. Unreasonable Hardship Determination. In determining whether or not enforcement of the zoning ordinance would cause unreasonable hardship under subsection B of this section, the AHO may not find an unreasonable hardship if the hardship is self-imposed or economic.
5. Special Circumstances. In determining whether or not there are special circumstances attached to the property under subsection B of this section, the AHO 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.
6. Burden of Proof. The applicant shall bear the burden of proving that all of the conditions justifying the variance have been met.
7. Run with Land. Variances run with the land.
8. Use Variances Prohibited. The AHO and any other body may not grant use variances.
9. Additional Requirements Imposed. In granting a variance, the AHO 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.

1. In the event the AHO does grant a variance in accordance with the provisions of this chapter, alterations in accordance with the variance must be activated within twelve (12) months after the date the variance is granted or the variance becomes null and void. The time limit of the variance may be extended an additional six (6) months by the AHO and then only if the petitioner shows adequate cause to AHO that circumstances necessitate a time extension.
   

1. No person may challenge in district court a land use decision until that person has exhausted the person's administrative remedies as provided above.
   1. A land use applicant or adversely affected party may file a petition for review of the decision with the district court within 30 days after the decision is final.
   2. The time under Subsection A.1 above to file a petition is tolled from the date a property owner files a request for arbitration of a constitutional taking issue with the property rights ombudsman until 30 days after:
      1. The arbitrator issues a final award; or
      2. The property rights ombudsman issues a written statement declining to arbitrate or to appoint an arbitrator.
2. A tolling 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 Subsection A.1 above to file a petition has expired does not affect the time to file a petition.
4. A court shall presume that a land use regulation properly enacted under the authority of this chapter is valid; and determine only whether:
   1. The land use regulation is expressly preempted by, or was enacted contrary to, state or federal law; and
   2. It is reasonably debatable that the land use regulation is consistent with this chapter.
5. A court shall presume that a final decision of the land use or appeal authority is valid; and uphold the decision unless the decision is:
   1. Arbitrary and capricious; or
   2. Illegal.
6. A decision is arbitrary and capricious if the decision is not supported by substantial evidence in the record.
7. A decision is illegal if the decision is:
   1. Based on an incorrect interpretation of a land use regulation; or
   2. Contrary to law.
8. A court may affirm or reverse the decision of a land use authority. If the court reverses a land use authority's decision, the court shall remand the matter to the land use authority with instructions to issue a decision consistent with the court's ruling.
   1. The provisions of Subsection A.1 above apply from the date on which the city takes final action on a land use application, if the municipality conformed with the notice provisions, or for any person who had actual notice of the pending decision.
   2. If the municipality has complied with UCA 10-9a-205, a challenge to the enactment of a land use regulation or General Plan may not be filed with the district court more than 30 days after the enactment.
      1. A challenge to a land use decision is barred unless the challenge is filed within 30 days after the land use decision is final.
   3. The land use authority or appeal authority, as the case may be, shall transmit to the reviewing court the record of its proceedings, including its minutes, findings, orders, and, if available, a true and correct transcript of its proceedings.
      1. If the proceeding was recorded, a transcript of that recording is a true and correct transcript for purposes of this Subsection.
      2. 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.
      3. Tape Recordings. If the proceeding was tape recorded, a transcript of that tape recording is a true and correct transcript for purposes of subsection E of this section.
      4. 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.
      5. If there is no record, the court may call witnesses and take evidence.
9. The filing of a petition does not stay the decision of the land use authority or appeal authority, as the case may be.
   1. Before filing a petition under this section or a request for mediation or arbitration of a constitutional taking issue, a land use applicant 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 municipality.
   3. After a petition is filed under this section or a request for mediation or arbitration of a constitutional taking issue is filed under UCA 13-43-204, the petitioner may seek an injunction staying the appeal authority's decision.
10. If the court determines that a party initiated or pursued a challenge to the decision on a land use application in bad faith, the court may award attorney fees.
11. Preparation Costs. The party appealing the order of AHO to the district court shall pay all costs associated with preparation of the record of the AHO proceeding, including the cost of preparing any transcript of the recording of the hearing.