Saint George City Zoning Code
3 Appeals
And Variances
10-3-1: APPEAL AUTHORITIES:
A. Land Use Appeals: Except as provided in subsections B and D of this section, the administrative law judge, appointed pursuant to title 1, chapter 15 of this code, is the appeal authority for challenges to all final land use authority decisions, and challenges to fees imposed hereunder. Appeals under this section shall be pursuant to title 1, chapter 15 of this code.
B. Land Use Appeal Of Geologic Hazard Determinations: An applicant who has appealed a decision of the land use authority, administering or interpreting a geologic hazard regulation, may request that a panel of qualified experts serve as the appeal authority for purposes of determining the technical aspects of the appeal. Upon the applicant’s timely written request, payment of one-half (1/2) of the cost of the panel, the city shall assemble a panel of:
1. One (1) expert designated by the city and unaffiliated with the project;
2. One (1) expert designated by the applicant and unaffiliated with the project; and
3. One (1) expert chosen jointly by the first two (2) designated experts and unaffiliated with the project.
C. Request For Variance: The appeal authority decides requests for variances. A land use applicant may request a variance by submitting the request on a form supplied by the city, and by paying any applicable fees.
D. Constitutional Takings Appeal: In order to promote the protection of private property rights, and to prevent the taking, seizure, or exaction of private property without just compensation, the city shall adhere to the following before authorizing the physical taking or exaction of private real property:
1. Takings Review Procedure: Prior to any proposed action to physically take or exact property by the city, the city attorney should review the proposed action to determine if a constitutional taking requiring just compensation would occur under the Fifth or Fourteenth Amendments to the Constitution of the United States, under Article I, Section 22 of the Utah Constitution, or under any recent court rulings. The city attorney should determine whether the proposed action bears an essential nexus to a legitimate governmental interest, and whether the action is roughly proportionate and reasonably related to the legitimate governmental interest. The city attorney should also determine whether the action deprives the private property owner of all reasonable use of the property. Upon identifying a possible constitutional taking, the city attorney should, in a confidential, privileged, and protected writing, inform the mayor, city council, and land use authority of the possible consequences of its proposed action. This opinion shall be advisory only. No liability shall be attributed to the city for failure to follow the recommendation of the city attorney. The guidelines in this chapter are advisory only and shall not expand nor limit the scope of the city’s liability for a constitutional taking;
2. Appeal:
a. Any private property owner who believes that his/her property is proposed to be taken by a final action of the land use authority may appeal that final decision to the appeal authority within thirty (30) calendar days after the written decision is made. The appeal must be filed in writing with the city recorder.
b. In addition to the written request for review, the owner of the private real property shall submit, prior to the date of the review, the following:
(1) Name of the owner or the applicant requesting review;
(2) Name and business address of the current owner of the property, form of ownership, whether sole proprietorship, for-profit or not-for-profit corporation, partnership, joint venture or other, and if owned by a corporation, partnership or joint venture, name and address of all principal shareholders or partners;
(3) A detailed description of the grounds for the claim that there has been a constitutional taking;
(4) A detailed description of the property taken;
(5) Evidence and documentation as to the value of the property taken, including the date and cost at the date the property was acquired. This should include any evidence of the value of that same property before and after the alleged constitutional taking, the name of the party from whom purchased, including the relationship, if any, between the person requesting a review and the party from whom the property was acquired;
(6) Nature of the protectable interest claimed to be affected, such as, but not limited to, fee simple ownership, leasehold interest;
(7) Terms (including sale price) of any previous purchase or sale of a full or partial interest in the property in the three (3) years prior to the date of application;
(8) All appraisals of the property prepared for any purpose, including financing, offering for sale, or ad valorem taxation, within the three (3) years prior to the date of application;
(9) The assessed value of, and ad valorem taxes on, the property for the previous three (3) years;
(10) All information concerning current mortgages or other loans secured by the property, including the name of the mortgagee or lender, current interest rate, remaining loan balance and term of the loan and other significant provisions including, but not limited to, right of purchasers to assume the loan;
(11) All listings of the property for sale or rent, price asked and offers received, if any, within the previous three (3) years;
(12) All studies commissioned by the applicant or agents of the applicant within the previous three (3) years concerning the feasibility of development or the utilization of the property;
(13) For income-producing property, all itemized income and expense statements from the property for the previous three (3) years;
(14) Information from a title policy or other source showing all recorded liens or encumbrances affecting the property; and
(15) The appeal authority may request additional information reasonably necessary, in the city council’s or its designee’s opinion, to arrive at a conclusion concerning whether there has been a constitutional taking.
c. An application shall not be deemed to be complete or submitted until all the materials and information required above have been received by the city. The appeal authority shall promptly notify the applicant of any incomplete application.
d. The appeal authority shall have fourteen (14) calendar days to hear and decide the appeal after it is filed. The appeal authority can affirm or reverse the decision of the land use authority. The appeal authority, with advice from the city attorney, shall review the appeal pursuant to subsection D1 of this section. The decision of the appeal authority shall be in writing with copies given to the appellant, mayor, city council, and the land use authority. Failure to appeal does not constitute a failure to exhaust available administrative remedies, or as a bar to bringing legal action.
e. If the appeal authority fails to hear and decide the review within fourteen (14) calendar days, the decision appealed from shall be presumed to be approved. (Ord. 2019-10-002, 10-10-2019; amd. Ord. 2024-029, 5-2-2024)
10-3-2: APPEAL PERIOD:
The land use applicant, the municipality, or any person adversely affected by the land use authority’s decision administering or interpreting this title may, within ten (10) business days, file a written notice of appeal with the city recorder, alleging that there is error in any order, requirement, decision, or determination made by the land use authority in the administration or interpretation of this title, and pay the appeal fee. The appeal shall be pursuant to the terms in title 1, chapter 15 of this code. (Ord. 2019-10-002, 10-10-2019; amd. Ord. 2024-029, 5-2-2024)
10-3-3: STANDARD OF REVIEW – APPEALS:
A. The appeal authority shall ensure due process for the applicant and the adversely affected parties.
B. At all times, the appellant bears the burden of proof that the land use authority’s decision was in error.
C. The appeal authority shall review the facts “de novo,” without deference to the land use authority’s determination of factual matters.
D. The appeal authority shall:
1. Determine the correctness of the land use authority’s interpretation and application of the plain meaning of the land use regulations; and
2. Interpret and apply a land use regulation to favor a land use application unless the land use regulation plainly restricts the land use application.
E. Whenever an appeal is brought by a party other than the applicant or property owner:
1. The applicant and/or property owner of the property in dispute shall be notified of the appeal within fourteen (14) business days after the notice of appeal is received by the appeal authority. A copy of the notice of appeal will be provided with the notification.
2. In addition to the appellant, the applicant or property owner has a right to be approved by the appeal authority as an intervening party in the appeal.
F. The scope of the appeal shall be the land use decision being appealed, the grounds for relief raised by the appellant, issues the appeal authority determines may be raised by a party in court after the final administrative decision, and any requirements of St. George ordinances, policies, and procedure.
G. The appeal authority may reverse the land use decision, affirm the land use decision, affirm in part and/or reverse in part, modify a condition or requirement, attach conditions or requirements, remand the land use decision to the land use authority, and make any such order as ought to be made consistent with its decision.
H. Within a reasonable time, the appeal authority shall issue a written decision, supported by findings of fact and conclusions of law consistent with the standards provided herein. (Ord. 2019-10-002, 10-10-2019; amd. Ord. 2024-029, 5-2-2024)
10-3-4: STANDARD OF REVIEW – VARIANCE:
A. Criteria: The appeal authority shall grant a variance only if:
1. Literal enforcement of the zoning ordinance would cause an unreasonable hardship for the applicant that is not necessary to carry out the general purpose of the zoning ordinance;
2. There are special circumstances attached to the property that do not generally apply to other properties in the same zone;
3. Granting the variance is essential to the enjoyment of a substantial property right possessed by other properties in the same zone;
4. The variance will not substantially affect the general plan and will not be contrary to the public interest; and
5. The spirit of the zoning ordinance is observed and substantial justice is done.
B. Unreasonable Hardship: In determining whether enforcement of the zoning ordinance would cause unreasonable hardship under subsection A1 of this section, the appeal authority 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; and
3. Is not self-imposed or economic.
C. Special Circumstances: The appeal authority 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 zone.
D. At all times, the applicant bears the burden of proving that all of the criteria justifying a variance have been met.
E. The appeal authority may not grant a use variance.
F. For each request for variance, the appeal authority shall issue a written decision that includes the findings of fact and conclusions of law upon which the decision is based, and any conditions of approval the appeal authority determines are reasonable and necessary to mitigate the impact of granting the requested variance.
G. A variance “runs with the land.”
H. A variance shall expire if the applicant fails to obtain a building permit within one (1) year from the date of the decision or fails to complete the construction authorized by the variance according to the terms of the building permit. (Ord. 2019-10-002, 10-10-2019)
10-3-5: JUDICIAL REVIEW:
Any person adversely affected by the appeal authority’s decision may file, within thirty (30) days of the written decision, a petition in the district court for a review of that decision. The standard for the review shall be the standard provided in Utah Code Annotated, 10-9a-801. (Ord. 2019-10-002, 10-10-2019)