Provo City Zoning Code

14.05 Board

of Adjustment

14.05.010 Board of Adjustment Created.

(1) There is hereby created a Board of Adjustment which shall consist of five (5) members, each to be appointed by the Mayor with the advice and consent of the Municipal Council for a term of five (5) years; provided, that the terms of the members of the first Board so appointed shall be such that the term of one (1) member shall expire each year.

(2) Any member may be removed for cause by the Mayor upon written charges and after public hearings, if such public hearing is requested.

(3) The Mayor with the advice and consent of the Municipal Council shall fill any vacancy for the unexpired term of any member whose term becomes vacant.

(4) The Mayor may appoint up to two (2) alternate members to the board with the advice and consent of the Municipal Council.

14.05.020 Organization of Board.

(1) The Board of Adjustment shall organize and elect a chair and adopt rules in accordance with the provisions of this Title.

(2) Meetings of the Board shall be held at the call of the chair and at such other times as the Board may determine. The chair or, in the chair’s absence, the acting chair may administer oaths and compel the attendance of witnesses. All meetings of the Board shall be open to the public. The Board shall keep minutes of its proceedings showing the vote of each member on each question, or if absent or failing to vote, indicating such fact, and shall keep records of its examinations and other official actions all of which shall be immediately filed in the office of the Board and shall be a public record.

(3) Hearing officer - The Mayor may appoint an administrative officer to decide routine and uncontested matters before the board of adjustment. 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.

14.05.030 Appeals to Board - Powers and Duties.

The Board of Adjustment shall hear and decide appeals from zoning decisions applying this Title; variances from the terms of this Title; and may authorize special exceptions to the terms of this Title pursuant to the procedures and standards set forth in Subsection (10) of this Section.

(1) The applicant or any person or entity adversely affected by a decision administering or interpreting a provision within this Title may appeal that decision applying the provision by alleging that there is error in any order, requirement, decision, or determination made by an official in the administration or interpretation of the provision.

(2) Any officer, department, board, or bureau of the City affected by the grant or refusal of a building permit or by any other decision of the administrative officer or interpretation of a provision of this Title may appeal any decision to the Board of Adjustment.

(3) The Board of Adjustment shall hear and decide appeals from Planning Commission decisions regarding conditional use permits.

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

(5) Only decisions applying this Title may be appealed to the Board of Adjustment.

(6) A person may not appeal, and the Board of Adjustment may not consider, any zoning amendments to the Provo City Code.

(7) Appeals may not be used to waive or modify the terms or requirements of a provision within this Title.

(8) Interpretation. Upon appeal from a decision by an administrative official to decide any question involving the interpretation of any provision of this Title, including determination of the exact location of any zone boundary if there is uncertainty with respect thereto. With respect to the boundaries of the floodplain zone, the Board of Adjustment may use the Flood Insurance Rate Map (FIRM) to interpret the floodplain boundaries.

(a) Any person or entity desiring a waiver or modification of the requirements of this Title as applied to a parcel of property that he owns, leases, or in which he holds some other beneficial interest may apply to the Board of Adjustment for a variance from the terms of this Title.

(b) The Board of Adjustment may grant a variance only if:

(i) 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;

(ii) There are special circumstances attached to the property that do not generally apply to other properties in the same district;

(iii) Granting the variance is essential to the enjoyment of a substantial property right possessed by other property in the same district;

(iv) The variance will not substantially affect the general plan and will not be contrary to the public interest; and

(v) The spirit of this Title is observed and substantial justice done.

(i) In determining whether or not enforcement of the zoning ordinance would cause unreasonable hardship under Subsection (9)(b) of this Section, the Board of Adjustment may not find an unreasonable hardship unless the alleged hardship:

(A) is located on or associated with the property for which the variance is sought; and

(B) comes from circumstances peculiar to the property, not from conditions that are general to the neighborhood.

(ii) In determining whether or not enforcement of this Title would cause unreasonable hardship as outlined under Subsection (9)(b) of this Section, the Board of Adjustment may not find an unreasonable hardship if the hardship is self-imposed or economic.

(d) In determining whether or not there are special circumstances attached to the property under subsection (9)(b) of this Section, the Board of Adjustment may find that special circumstances exist only if the special circumstances:

(i) relate to the hardship complained of; and

(ii) deprive the property of privileges granted to other properties in the same district.

(e) The applicant shall bear the burden of proving that all of the conditions justifying a variance have been met.

(f) Variances run with the land.

(g) The Board of Adjustment and any other body may not grant use variances.

(h) In granting a variance, the Board of Adjustment may impose additional requirements on the applicant that will:

(i) mitigate any harmful affects of the variance; or

(ii) serve the purpose of the standard or requirement that is waived or modified.

(10) Special Exceptions. The Board of Adjustment, as a special exception to the height regulations of the applicable zone, may approve a permit to exceed the maximum building height of a one family dwelling. To grant such special exception the Board of Adjustment shall find that plan proposed:

(a) Is a design better suited to the site than can be achieved by strict compliance to these regulations; and

(b) Satisfies the following criteria:

(i) the topography of the lot presents practical difficulties for construction when the height limitations are applied;

(ii) the structure has been designed for the topographic conditions existing on the particular lot; and

(iii) the impact of additional height on neighboring properties has been identified and reasonably mitigated.

(iv) The minimum depth of front, rear, and side yards can and will be increased as follows:

(A) Front yard: two (2) additional feet for each one (1) foot of building height in excess of thirty feet (30) measured at the front elevation.

(B) Rear yard: two (2) additional feet for each one (1) foot of building height in excess of thirty-five (35) feet measured at the rear elevation.

(C) Side yard: one (1) additional foot for each one (1) foot of building height in excess of thirty-five (35) feet measured at the side elevation.

(c) In making these findings the Board of Adjustment may consider the size of the lot upon which the structure is proposed.

(d) The burden of proof is upon the applicant to submit sufficient data to persuade the Board of Adjustment that the foregoing criteria have been satisfied.

(e) The Board of Adjustment may deny an application for a height special exception if:

(i) The architectural plans submitted are designed for structures on level, or nearly level ground and the design is transposed to hillside lots requiring support foundations such that the structure exceeds the height limits of these regulations;

(ii) The additional height can be reduced by modifying the design of the structure through the use of stepping or terracing or by altering the placement of the structure on the lot;

(iii) The additional height will substantially impair the views from adjacent lots, and the impairment can be avoided by modification; or

(iv) The proposal is not in keeping with the character of the neighborhood.

(11) Nonconforming Uses. The Board of Adjustment may make determinations regarding the existence, expansion, or modification of nonconforming uses.

(a) To grant variances varying or adapting the strict application of any of the requirements of the Floodplain Zone. In passing upon applications for a variance from the provisions of the Floodplain Zone, the Board of Adjustment shall consider all technical evaluations, all relevant factors, standards specified in other sections of this Title, and:

(i) the danger that materials may be swept onto other lands to the injury of others;

(ii) the danger to life and property due to flooding or erosion damage;

(iii) the susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner;

(iv) the importance of the services provided by the proposed facility to the community;

(v) the availability of alternative locations for the proposed use which are not subject to flooding or erosion damage;

(vi) the compatibility of the proposed use with existing and anticipated development;

(vii) the safety of access to the property in times of flood for ordinance and emergency vehicles;

(viii) the expected heights, velocity, duration, rate of rise, and sediment transport of the flood waters expected at the site; and

(ix) the costs of providing governmental services during and after flood conditions, including maintenance and repair of public utilities and facilities such as sewer, gas, electrical and water system, and streets and bridges.

(b) Upon consideration of the foregoing factors and the purposes of this Title, the Board of Adjustment may attach such conditions to the granting of variances as it deems necessary to further the purposes of this Title. The following provisions shall apply:

(i) Generally, variances may be issued for new construction and substantial improvements to be erected on a lot by one-half (1/2) acre or less in size contiguous to and surrounded by lots with existing structures constructed below the base flood level. As the lot size increases beyond the one-half (1/2) acre, the technical justification required for issuing the variance increases.

(ii) Variances may be issued for the reconstruction, rehabilitation or restoration of structures listed on the National Register of Historic Places or the State Inventory of Historic Places, without regard to the procedures set forth in the remainder of this Section.

(iii) Variances shall not be issued within any designated floodway if any increase in flood levels during the base flood discharge would result.

(iv) Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief.

(v) Variances shall only be issued upon:

(A) a showing of good and sufficient cause;

(B) a determination that failure to grant the variance would result in exceptional hardship to the applicant; and

(C) a determination that the granting of the variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, create nuisances, cause fraud on or victimization of the public, or conflict with the Provo City Code and other existing local laws or ordinances.

(vi) Any applicant to whom a variance is granted permitting construction of a house with an elevation below the base flood elevation shall be given written notice that the cost of flood insurance will be commensurate with the increased risk resulting from the lowered floor elevation.

(Am 1992-75, Am 1995-99, Am 2001-33, Am 2021-33)

14.05.040 Procedure.

(1) The Board of Adjustment shall act in strict accordance with the procedure specified by law and by this Title.

(2) All appeals and applications made to the Board shall be in writing, on forms prescribed by the Board and within fourteen (14) days of the action or decision appealed from by filing a Notice of Appeal with the officer from whom the appeal is taken or with the Board of Adjustment. The officer from whom the appeal was taken shall forthwith transmit to the Board of Adjustment all papers constituting the record upon which the action appealed from was taken.

(3) Every appeal or application shall refer to the specific sections of the Provo City Code involved, and shall exactly set forth the interpretation that is claimed, the use for which the conditional use permit is sought, or the details of the variance that is applied for and the grounds on which it is claimed that the variance should be granted, as the case may be.

(4) At least fourteen (14) days before the date of any hearing on an application of appeal to the Board of Adjustment, the secretary of such Board shall transmit to the Planning Commission a copy of the notice of the aforesaid hearing and shall request that the Planning Commission submit to the Board of Adjustment its advisory opinion on said application or appeal, and the Planning Commission shall submit a report or such advisory opinion prior to the date of said hearing.

(5) An appeal stays all proceedings in furtherance of the action appealed from unless the officer from whom the appeal is taken certifies to the Board of Adjustment after the Notice of Appeal shall have been filed with the officer that by reason of facts stated in the Certificate, a stay would, in the officer’s opinion, cause imminent peril to life or property. In such case, proceedings shall not be stayed otherwise than by restraining order which may be granted by the Board of Adjustment or by the District Court on application and notice and due cause shown.

(6) No action of the Board shall be taken on any case until after proper notice has been given and public hearing has been held. Upon the hearing, any party may appear in person or by agent or by attorney.

(7) Every decision of the Board of Adjustment shall be by motion, each of which shall contain a full record of the findings of the Board in the particular case.

(8) In exercising its powers, the Board of Adjustment may reverse or affirm, wholly or partly, or may modify the order requirement, decision, or determination as ought to be made, and to that end shall have all of the powers of the officer from whom the appeal is taken. The concurring vote of three (3) members of the Board shall be necessary to reverse any order, requirement, decision or determination of any such administrative official, or agency or to decide in favor of the appellant on any matter upon which it is required to pass under any such section of the Provo City Code, or to affect any variation in such section of the Provo City Code.

(9) 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.

(10) Notices of public hearings required by this Title before the Board of Adjustment shall be given at least fifteen (15) calendar days before the hearing by publication or at least once in a newspaper of general circulation within Provo City. Such notice shall state the time and place of such hearing and shall include a general explanation of the matter to be considered and a general description of the area affected. Additional notice may be given as deemed necessary.

14.05.050 Judicial Appeal.

(1) Any person aggrieved by or affected by any decision of the Board of Adjustment may have and maintain a plenary action for relief from the District Court of competent jurisdiction, provided petition for such relief is presented to the court within thirty (30) days after the filing of such decision in the office of the Board of Adjustment or with the City Recorder.

(2) The filing of a petition does not stay the decision of the Board of Adjustment.

(3) Before filing the petition, the aggrieved party may petition the Board of Adjustment to stay its decision.

(4) 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 to be in the best interest of the city.