A.   Creation Of Planning Commission; Number Of Members; Appointment:

      1.   The planning and zoning shall consist of seven (7) members, each to be appointed by the mayor with the advice and consent of the city council. Six (6) members of said commission shall be residents of the city and owners of real property within the city. At least four (4) of these six (6) members shall hold no other public office or position within the city. The seventh member of the planning and zoning shall be an ex officio member with full voting and speaking rights, appointed from among members of the city council.

      2.   The mayor, upon the advice and consent of the city council, may appoint up to two (2) standing alternate members of the planning and zoning commission to serve only in the absence of any duly appointed regular member. The alternate shall serve with full rights and authority at the meeting in which he/she is in attendance.

   B.   Term Of Office: The initial terms of the appointed members of the planning and zoning, with the exception of the ex officio member, shall be three (3) years, and continue until their respective successors shall have been appointed, except that the terms of appointment shall be such that the terms of two (2) members shall expire each year. The ex officio member shall serve at the pleasure of the city council. The planning and zoning existing at the time of passage of the ordinance codified herein shall continue to serve, and the terms of its members shall be fixed by the city council in such a manner as to comply with the above provisions for staggering terms of service.

   C.   Compensation: The members of the planning and zoning shall serve as such without compensation, except that the city council may fix per diem compensation for the members of the planning and zoning based on necessary and reasonable expenses for meetings actually attended. Actual expenses incurred shall be verified by presentation of bona fide receipts and vouchers.

   D.   Vacancies And Removals For Cause: Vacancies of appointed members occurring otherwise than through the expiration of terms shall be filled for the remainder of the unexpired terms. The city council shall have the right to remove any member of the planning and zoning for misconduct and may remove any member for nonperformance of duty. Unexcused absences from three (3) consecutive regular scheduled meetings of the planning and zoning may be considered by the city council as nonperformance of duty.

   E.   Chairperson: The planning and zoning shall elect from its members a chairperson who shall serve until such time as a new chairperson is elected.

   F.   Employees: The planning and zoning shall have power and authority to employ experts and a staff, and to pay such expenses as may be reasonable and necessary for carrying out the powers hereinafter set forth, but not in excess of such sums as may be appropriated by the city council for use by the planning and zoning commission.

   G.   Rules And Regulations: The planning and zoning shall adopt such rules and regulations governing its procedures as it may consider necessary or advisable, and shall keep a record of its proceedings, which record shall be open to inspection by the public at all reasonable times. The adopted rules and regulations shall be presented to the city council for their approval or disapproval. Only after the formal approval of the city council shall the rules and regulations be enforceable.

   H.   Planning And Zoning Powers And Duties: The planning and zoning shall:

      1.   Prepare and recommend a general plan and amendments to the general plan to the city council;

      2.   Recommend zoning ordinances and maps, and amendments to zoning ordinances and maps to the city council;

      3.   Administer provisions of the zoning ordinance, where specifically provided in this title;

      4.   Recommend subdivision regulations and amendments to those regulations to the city council;

      5.   Recommend approval or denial of subdivision applications;

      6.   Advise the city council on matters as the city council directs;

      7.   Hear or decide any matters that the city council designates, including the approval or denial of, or recommendations to approve or deny, conditional use permits;

      8.   Exercise any other powers:

         a.   That are necessary to enable it to perform its function; or

         b.   Delegated to it by the city council.

   I.   General Plan:

      1.   The city shall prepare and adopt a comprehensive, long range, general plan for:

         a.   The present and future needs of the city; and

         b.   The development of the land and growth within the city.

      2.   The plan may provide for:

         a.   Health, general welfare, safety, energy conservation, transportation, storm drainage, prosperity, civic activities, and recreation, educational and cultural opportunities;

         b.   The reduction of waste of physical, financial or human resources that result from excessive congestion or excessive scattering of population;

         c.   The efficient and economical use, conservation and production of the supply of food and water, and for drainage, sanitary, and other facilities and resources;

         d.   The use of energy conservation and solar and renewable energy resources; and

         e.   The protection of urban development, open space and the environment, protection and promotion of air quality.

      3.   The planning and zoning, with the approval of the city council, may determine the comprehensiveness, extent and format of the general plan.

   J.   Plan Preparation:

      1.   The planning and zoning shall create and recommend to the city council a proposed general plan for the area within the city.

         a.   The plan may include areas outside the boundaries of the city if, in the planning and zoning's judgment, they are related to the future planning of the city territory.

         b.   Where the plan of the city involves territory outside the boundaries of the city, no action affecting that territory may be taken without the concurrence of the county unincorporated areas or other municipalities affected.

      2.   The general plan, with accompanying maps, plats, charts and descriptive and explanatory information, shall show the planning and zoning's recommendations for the development of the territory covered by the plan, and may include, among other things:

         a.   A land use element that designates the proposed general distribution and location and extent of uses of land for housing, business, industry, agriculture, recreation, education, public buildings and grounds, open space, and other categories of public and private uses of land as appropriate; and may include a statement of the standards of population density and building intensity recommended for the various land use categories covered by the plan;

         b.   A transportation and circulation element consisting of the general location and extent of existing and proposed freeways, arterial and collector streets, mass transit, and any other modes of transportation that are appropriate, all correlated with the land use element of the plan;

         c.   An environmental element that addresses:

            (1)   The protection, conservation, development and use of natural resources, including forests, soils, rivers and other waters, harbors, fisheries, wildlife, quality of air, minerals and other natural resources, and hazards; and

            (2)   The reclamation of land, stormwater management, flood control, prevention and control of the pollution of streams and other waters, regulation of the use of land on hillsides, stream channels and other environmentally sensitive areas, the prevention, control and correction of the erosion of soils, protection of watersheds and wetlands, and the mapping of known geologic hazards;

         d.   A public service and facility element showing general plans for sewage, water disposal, drainage, local utilities, rights of way, easements, facilities for them, police and fire protection, and other public services;

         e.   A rehabilitation, redevelopment and conservation element consisting of plans and programs for the elimination of blight and for redevelopment, including housing sites, business and industrial sites, public building sites, and historic preservation;

         f.   An economic element composed of appropriate studies and an economic development plan that may include review of municipal revenue and expenditures, revenue sources, identification of base and resident industry, primary and secondary market areas, employment and retail sales activity;

         g.   Recommendations for implementing the plan, including the use of zoning ordinances, subdivision ordinances, capital improvement plans, and other appropriate actions; and

         h.   Any other elements that the city considers appropriate.

   K.   Plan Adoption:

      1.   Planning Commission Public Hearing:

         a.   After completing a proposed general plan for all or part of the area within the city, the planning and zoning commission shall schedule and hold a public hearing on the proposed plan in compliance with state law, after a minimum of ten (10) days' notice.

         b.   After the public hearing, the planning and zoning may make changes to the proposed general plan.

      2.   Forward To City Council: The planning and zoning shall then forward the proposed general plan to the city council.

      3.   City Council Public Hearing:

         a.   The city council shall hold a public hearing, after ten (10) days' notice, on the proposed general plan recommended to it by the planning and zoning.

         b.   After the public hearing, the city council may make any modifications to the proposed general plan that it considers appropriate.

      4.   Action Of City Council: The city council may:

         a.   Adopt the proposed general plan without amendment;

         b.   Amend the proposed general plan and adopt or reject it as amended; or

         c.   Reject the proposed general plan.

      5.   Applicability Of Plan: The general plan is an advisory guide for land use decisions, and compliance can be mandated by ordinance.

   L.   Amendment Of Plan: The city council may amend the general plan by following the procedures set forth in subsection K4 of this section.

   M.   Effect Of Plan On Public Uses:

      1.   After the city council has adopted a general plan or any amendments to the general plan, no street, park or other public way, ground, place or space, no publicly owned building or structure, or utility, whether publicly owned or privately owned, may be constructed or authorized until and unless:

         a.   It conforms to the plan; or

         b.   It has been considered by the planning and zoning commission and, after receiving the advice of the planning and zoning, approved by the city council as an amendment to the general plan.

      2.   Before accepting, widening, removing, extending, relocating, narrowing, vacating, abandoning, changing the use, acquiring land for, or selling or leasing any street or other public way, ground, place, property, or structure, the city council shall submit the proposal to the planning and zoning commission for its review and recommendations.

      3.   If the city council approves any of the items contained in subsection M2 of this section, it shall also amend the general plan.

   N.   Zoning; Right To Regulate: The city council may enact a zoning ordinance establishing regulations for land use and development that furthers the intent of this chapter.

   O.   Preparation And Adoption Of Zoning Regulations:

      1.   Preparation, Recommendation By Planning Commission: The planning and zoning commission shall prepare and recommend to the city council a proposed zoning ordinance, including both the full text of the zoning ordinance and maps, which represent the commission's recommendations for zoning all or any part of the area within the city.

      2.   Public Hearing:

         a.   The city council shall hold a public hearing on the proposed zoning ordinance recommended to it by the planning and zoning commission.

         b.   The city council shall publish notice of the time, place and purpose of the public hearing in a newspaper of general circulation in the city at least ten (10) days before the hearing at which the proposed zoning ordinance is to be considered and public comment heard.

      3.   Decision Of City Council: After public hearing, the city council may:

         a.   Adopt the zoning ordinance as proposed; or

         b.   Amend the zoning ordinance and adopt or reject the zoning ordinance as amended; or

         c.   Reject the ordinance.

   P.   Amendments And Rezoning:

      1.   The city council may amend:

         a.   The number, shape, boundaries or area of any zoning district;

         b.   Any regulation of or within the zoning district; or

         c.   Any other provision of the zoning ordinance.

      2.   The city council may not make any amendment authorized by this subsection unless the amendment was proposed by the planning and zoning or is first submitted to the planning and zoning for its approval, disapproval, or recommendations. The city council shall comply with the procedure specified in subsection O of this section, in preparing and adopting an amendment to the zoning ordinance or zoning map.

   Q.   Temporary Regulations:

      1.   Authority To Permit:

         a.   The city council may, without a public hearing, enact ordinances establishing temporary zoning regulations for any part or all of the area within the city.

         b.   Those temporary zoning regulations may prohibit or regulate the erection, construction, reconstruction or alteration of any building or structure or subdivision approval.

      2.   Term: The city council shall establish a period of limited effect for the ordinances not to exceed six (6) months from the date of enactment.

      3.   Nonliability For Damages: There shall be no claim for damages based on a temporary moratorium under this section.

   R.   Zoning Districts: The city council may divide the territory over which it has jurisdiction into zoning districts of a number, shape and area that it considers appropriate to carry out the purposes of this chapter.

   S.   Conditional Uses:

      1.   Permitted: A zoning ordinance may contain provisions for conditional uses that may be allowed, allowed with conditions or denied in designated zoning districts, based on compliance with standards and criteria set forth in the zoning ordinance for those uses.

      2.   Appeal: The board of adjustment has jurisdiction to decide appeals of the approval or denial of conditional use permits unless the city council has enacted an ordinance designating another body as the appellate body for those appeals.

   T.   Nonconforming Uses And Structures:

      1.   Continued: Except as provided in this subsection, a nonconforming use or structure may be continued.

         a.   A nonconforming use may be extended through the same building, provided no structural alteration of the building is proposed or made for the purpose of the extension.

         b.   For purposes of this subsection, the addition of a solar energy device to a building is not a structural alteration.

      2.   Authority Of City Council: The city council may provide in any zoning ordinance or amendment thereto for:

         a.   The restoration, reconstruction, extension, alteration, expansion, or substitution of nonconforming uses upon the terms and conditions set forth in the zoning ordinance;

         b.   The termination of all nonconforming uses (except billboards) by providing a formula establishing a reasonable time period during which the owner can recover or amortize the amount of his investment in the nonconforming use, if any; and

         c.   The termination of a billboard that is a nonconforming use by either:

            (1)   Acquiring the billboard and associated property rights by gift, purchase, agreement, exchange or eminent domain; provided, that if the city council acquires the billboard by eminent domain, it pays the owner just compensation; or

            (2)   Allows the owner to recover or amortize the fair market value, in an amount that is equal to the amount by condemnation, and takes into consideration the reasonable cost of operation to the owner over the amortized period.

      3.   Billboard Removal Without Compensation: Notwithstanding subsection T2 of this section, a legislative body may remove a billboard without providing compensation or amortization if, after providing the owner with reasonable notice of proceedings and an opportunity for a hearing, the city council finds that:

         a.   The applicant for a permit made a false or misleading statement in his application;

         b.   The billboard is unsafe;

         c.   The billboard is an unreasonable state of repair; or

         d.   The billboard has been abandoned for at least twelve (12) months. (Ord. 2008-002, 2008)

   A.   Board Of Adjustment; Appointment, Term And Vacancy:

      1.   Appointment: In order to provide for just and fair treatment in the administration of local zoning ordinances, and to ensure that substantial justice is done, the city shall appoint a board of adjustment to exercise the powers and duties provided in this section.

      2.   Membership; Terms: The board of adjustment shall consist of five (5) members and whatever alternate members that the mayor, with the advice and consent of the city council, considers appropriate.

         a.   The mayor shall appoint the members and alternate members, with the advice and consent of the city council, for terms of five (5) years.

         b.   The mayor shall appoint members of the first board of adjustment to terms so that the term of one member expires each year.

      3.   Alternate Members:

         a.   No more than two (2) alternate members may sit at any meeting of the board of adjustment at one time.

         b.   The city council shall make rules establishing a procedure for alternate members to serve in the absence of members of the board of adjustment.

      4.   Removal Of Members:

         a.   The mayor, with the consent of the city council, may remove any member of the board of adjustment for cause, if written charges are filed against the member with the city council.

         b.   The mayor shall provide the member with a public hearing if he/she requests one.

      5.   Vacancies:

         a.   The mayor, with the advice and consent of the city council, shall fill any vacancy.

         b.   The person appointed shall serve for the unexpired term of the member or alternate member whose office is vacant.

   B.   Organization And Procedures:

      1.   Chairperson; Rules: The board of adjustment shall:

         a.   Organize and elect a chairperson; and

         b.   Adopt rules that comply with any ordinance adopted by the city council.

      2.   Meetings: The board of adjustment shall meet at the call of the chairperson and at any other times that the board of adjustment determines.

      3.   Administer Oaths; Compel Attendance Of Witnesses: The chairperson, or in the absence of the chairperson, the acting chairperson, may administer oaths and compel the attendance of witnesses.

      4.   Open And Public Meetings; Records: All meetings of the board of adjustment shall be open to the public.

         a.   The board of adjustment shall:

            (1)   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

            (2)   Keep records of its examinations and other official actions.

         b.   All records in the office of the board of adjustment are public records.

      5.   Voting: The concurring vote of three (3) members of the board of adjustment is necessary to reverse any order, requirement, decision, or determination of any administrative official or agency to decide in favor of the appellant.

      6.   Decisions Effective: Decisions of the board of adjustment become effective at the meeting in which the decision is made, unless a different time is designated in the board's rules or at the time the decision is made.

   C.   Compensation: The city council may fix per diem compensation for the members of the board of adjustment based on necessary and reasonable expenses and on meetings actually attended.

   D.   Powers And Duties: The board of adjustment shall hear and decide appeals from administrative decisions applying a zoning or subdivision ordinance and this title, including appeals from:

      1.   Building Permit Denials: Building permit denials based upon a failure to comply with a zoning or subdivision ordinance;

      2.   Subdivision Plat Decisions: Administrative decisions related to subdivision plats; and

      3.   Conditional Use Permits: The approval or denial of conditional use permits.

   E.   Appeals:

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

      2.   Establish Time Limit: The city council shall enact an ordinance establishing a reasonable time for appeal to the board of adjustment of decisions administering or interpreting this title.

      3.   Authorized Appeals: Any officer, department, board or bureau of the city affected by the grant, or refusal, of a building permit or by any other decisions of the zoning administrator in the enforcement and administration of this title may appeal any decision to the board of adjustment.

      4.   Conditional Use Permit Appeals: The board of adjustment shall hear and decide appeals from the planning and zoning decisions regarding conditional use permits unless this title designates the city council or another body to hear conditional use permit appeals.

      5.   Burden Of Proof: The person or entity making the appeal has the burden of proving that an error has been made.

      6.   Limitation Of Appeals:

         a.   Only zoning decisions applying the ordinance may be appealed to the board of adjustment.

         b.   A person may not appeal, and the board of adjustment may not consider, any title amendments.

         c.   Appeals may not be used to waive or modify the terms or requirements of this title.

   F.   Hearing Officer:

      1.   Appointment; Term: The mayor, with the consent of the city council, may appoint an administrative officer to decide routine matters. The administrative officer shall serve at the pleasure of the mayor until such time as he/she is replaced.

      2.   Administration: The board of adjustment shall:

         a.   Designate which matters may be decided by the administrative officer; and

         b.   Establish guidelines for the administrative officer to comply with in making decisions.

      3.   Appeal To Board Of Adjustment: Any person affected by a decision of the administrative officer may appeal the decision to the board of adjustment as provided in this section.

   G.   Variance Committee:

      1.   Membership; Appointment: The variance committee shall consist of one city elected official, the community director and the public works director. The elected official shall be appointed by the mayor to the variance committee as chair of the committee, with the advice and consent of the city council.

      2.   Organization And Procedures: The variance committee shall review and provide a determination on matters requiring a variance from established provisions of this title, but shall not consider or hear appeals resulting from a decision of a city official, commission, board or the legislative body.

      3.   Records Maintained: The variance committee chair shall keep a record of all meetings, its findings and its resulting decisions.

      4.   Appeals To Variance Committee Decisions: An applicant for a variance to the variance committee, or any other person adversely affected by a decision made by the variance committee, may appeal that decision to the board of adjustment, applying the provisions of subsection E of this section.

   H.   Variances:

      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 he/she owns, leases, or in which he/she holds some other beneficial interest, may apply to the variance committee for a variance from the terms of this title.

      2.   Conditions: The variance committee may grant a variance only if:

         a.   Literal enforcement of this title would cause a hardship for the applicant that is not necessary to carry out the general purpose of the title;

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

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

         d.   The variance will not substantially affect the general plan and will not be contrary to the public interest; and

         e.   The spirit of this title is observed and substantial justice done.

      3.   Unreasonable Hardship:

         a.   In determining whether or not enforcement of this title would cause hardship, the variance committee may not find an unreasonable hardship unless:

            (1)   The alleged hardship is located on or associated with property for which the variance is sought; and

            (2)   The alleged hardship comes from circumstances peculiar to the property, not from conditions that are general in the neighborhood.

         b.   In determining whether or not enforcement of this title would cause unreasonable hardship under subsection H3a of this section, the variance committee may not find an unreasonable hardship if the hardship is self-imposed or economic.

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

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

      6.   Use Variances Not Permitted: The variance committee and any other body may not grant use variances.

      7.   Additional Requirements Imposed: In granting a variance, the variance committee may impose additional requirements on the applicant that will:

         a.   Mitigate any harmful effects of the variance; or

         b.   Serve the purpose of the standard or requirement that is waived or modified.

   I.   Appeal Of Board Of Adjustment Decision To District Court:

      1.   Permitted: Any person adversely affected by any decision of a board of adjustment may petition the district court in and for Carbon County for a review of the decision.

      2.   Limitation: In the petition, the plaintiff may only allege that the board of adjustment decision was arbitrary, capricious or illegal.

      3.   Time Limit: The petition is barred unless it is filed within thirty (30) days after the board of adjustment decision is final.

      4.   Record Of Proceedings:

         a.   The board of adjustment 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.

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

      5.   Limited Review: If there is a record, the district court review is limited to the record provided by the board of adjustment.

         a.   The court may not accept or consider any evidence outside the board of adjustment record unless that evidence was offered to the board of adjustment and the court determines that it was improperly excluded by the board of adjustment.

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

      6.   Decision: The court shall affirm the decision of the board of adjustment if the decision is supported by substantial evidence in the record.

      7.   Stay Of Decision: The filing of a petition does not stay the decision of the board of adjustment.

         a.   Before filing the petition, the aggrieved party may petition the board of adjustment to stay its decision.

         b.   Upon receipt of a petition to stay, the board of adjustment may order its decision stayed pending district court review if the board of adjustment finds it is in the best interest of the municipality.

         c.   After the petition is filed, the petitioner may seek an injunction staying the board of adjustment decision.

   J.   Procedure For District Court Appeals:

      1.   Administrative Remedies Exhausted: No persons may challenge in district court a municipality land use decision made under this chapter or under the regulation made under authority of this chapter or this title until they have exhausted their administrative remedies.

      2.   Time Limit To File: Any person adversely affected by any decision made in the exercise of the provisions of this title may file a petition for review of the decision with the district court within thirty (30) days after the local decision is rendered.

      3.   Authority Of Court: The district court shall:

         a.   Presume that land use decisions and regulations are valid; and

         b.   Determine only whether or not the decision is arbitrary, capricious or illegal.

   K.   Enforcement:

      1.   Options: A municipality or any owner of real estate within the municipality in which violations of this chapter or ordinances enacted under the authority of this chapter occur or are about to occur may, in addition to other remedies provided by law, institute:

         a.   Injunctions, mandamus, abatement, or any other appropriate actions; or

         b.   Proceedings to prevent, enjoin, abate, or remove the unlawful building, use, or act.

         c.   A municipality need only establish the violation to obtain the injunction.

      2.   Building Permits: A municipality may enforce the ordinance by withholding building permits.

         a.   It is unlawful to erect, construct, reconstruct, alter, or change the use of any building or other structure within a municipality without approval of a building permit.

         b.   The municipality may not issue a building permit unless plans of and for the proposed erection, construction, reconstruction, alteration, or use fully conform to all regulations then in effect.

   L.   Penalties:

      1.   Civil Penalties: The city council may, by ordinance, establish civil penalties for violations of any of the provisions of this chapter or of any ordinances adopted under authority of this chapter.

      2.   Misdemeanor: Violation of any of the provisions of this chapter or of any ordinances adopted under the authority of this chapter are punishable as a class C misdemeanor upon conviction, either:

         a.   As a class C misdemeanor; or

         b.   By imposing the appropriate civil penalty adopted under authority of this section. (Ord. 2008-002, 2008)