The purpose of this chapter is to establish the land use authority for decisions applying the land use ordinance, to establish the appeal authority for challenges to all final land use authority decisions, and to establish the appeal authority for building department decisions. (Ord. 2012-1026-O, 12-18-2012; amd. Ord. 2022-1205-O, 3-15-2022; Ord. 2024-1251-O, 2-25-2024)

   A.   The planning staff shall be the land use authority to hear and act on the following land use applications:

      1.   Lot line adjustments between two fit property owners or one owner on two fit lots where no hearings are required. This would include lot line adjustments in which no easements need to be vacated or relocated.

      2.   Permits regarding the transportation of mobile and manufactured homes.

      3.   For short term rental of residential dwellings, the acceptance of applications, issuance of licenses, and revocation of licenses.

      4.   Final subdivision plans and plats for single family, two-family, or townhouse development.

   5.   Those uses specifically delegated to the planning staff in these ordinances or by the Washington County commission.

   B.   The planning commission shall be the land use authority to hear and act on the following land use applications:

      1.   All land use applications except those items for which the planning staff or county commission is expressly designated as the land use authority.

      2.   Any item which the planning staff is the land use authority and on which the planning staff feels that a public meeting should be held to ensure that citizens have the opportunity to comment on the application.

      3.   Preliminary subdivision applications and preliminary plats for single-family, two-family, or townhouse development.

      4.   All other preliminary subdivision applications and preliminary plats (not single-family, two-family. or townhouse development).

      5.   Any other items delegated to the planning commission in these ordinances by the Washington County Commission.

   C.   The planning commission shall be a recommending body to the county commission for the following, and the county commission is the land use authority for the following:

      1.   General plan approvals or amendments.

      2.   Land use ordinance amendments (formerly the zoning ordinance).

      3.   Amendments to the zoning map, zone changes.

      4.   All other final subdivision plats (not single family, two-family, or townhouse development).

      5.   Subdivision ordinance amendments. (Ord. 2012-1026-O, 12-18-2012; amd. Ord. 2014-1042-O, 11-18-2014; Ord. 2022-1205-O, 3-15-2022; Ord. 2024-1251-O, 2-25-2024)

   A.   Planning Staff: The planning staff shall make its decision at regular joint utility development staff meetings, or in writing to the applicant including electronic mail.

   B.   Planning Commission: All public hearings related to land use decisions shall be held by the planning commission. Notice for the public hearing must meet the requirements of Utah Code Annotated section 17-27a-205 (1953, as amended). Notice of a public hearing for adoptions or amendments of the land use ordinance or subdivision ordinance, and vacating or changing a subdivision plat, shall be provided as required by state law. Also as set forth in title 10 and 11. specified public meetings related to land use shall be held by the Planning Commission, with notice as required by law.

   C.   County Commission: For items where the county commission is the land use authority, it shall conduct a public meeting, unless in its sole discretion it determines it will accept comments from the public, or it will conduct a public hearing. (Ord. 2012-1026-O, 12-18-2012; amd. Ord. 2020-1153-O, 1-7-2020; Ord. 2022-1205, 3-15-2022; Ord. 2023-1231-O, 4-18-2023; Ord. 2024-1251-O, 2-25-2024)

   A.   Legal Authority: The timely and specific appeal to the appeal authority described herein, and the exhaustion of administrative remedies, shall be conditions precedent to judicial review of any decision. The appeal authority or hearing officer is not a public body. Pursuant to Utah Code Ann.§ 17-27a-701, the county hereby establishes a hearing officer as the appeal authority to hear and decide final administrative decisions under Titles 9 and 10, and regarding:

      1.   Appeals from land use authority decisions applying land use ordinances;

      2.   Requests for variances from the terms of land use ordinances; and

      3.   Appeals from building department or building official decisions under Title 9, or a fee charged in accordance with Utah Code Ann.§ 17-27a-509.

   B.   For appeals related to single family, two-family, or townhouse developments, and the final review of a subdivision improvement plans (construction drawings), the appeal authority is the appeal panel following the procedures in 11-3-1(F), or the hearing officer following procedures in 10-2-1, et. seq., GR Appeal Deadline: The land use applicant, the owner, the county, or any person adversely affected by a final administrative decision may file a written notice of appeal with county community development department. An adversely affected party is defined pursuant to Utah Code Ann. § 17-27a-103. The written notice of appeal shall be filed within ten (10) calendar days of the final administrative decision, and accompanied by the required appeal fee. It shall be accompanied by all information specified in Title 10 Chapter 2. An appeal that is not timely will not be considered.

   D.   Jurisdiction: An appeal may be filed only by the land use applicant, the owner, the county, or an adversely affected party. An appeal filed by any other party will not be considered. The appeal proceedings are between the appellant and the appellee. The appeal proceedings are between the appellant and the appellee. Only parties to the appeal (or their legal representatives) may be heard in an appeal hearing. A hearing officer shall not hear or decide an appeal of a legislative decision of the Planning Commission or County Commission. The County Commission shall continue to act as the appeal authority where it is expressly required by county ordinance. (Ord. 2022-1205-O, 3-15-2022; amd. Ord. 2023-1231-O, 4-18-2023; Ord. 2024-1251-O, 2-25-2024)

The county may appoint one or more hearing officers to act as appeal authorities. Only one hearing officer shall consider and decide each administrative appeal. This replaces the previous appeal provisions and appeal boards in Titles 9 and 10. Hearing officers shall be appointed by the county commission, and shall serve for an indefinite time at the pleasure of the county, and may be released with or without cause. A hearing officer shall not be a member of the county commission, planning commission, county staff, or any other elected or appointed official of the county. For each type of appeal, the hearing officer shall be selected based on objective qualifications to hear and render an efficient and legally supported appeal decision. Hearing officers shall be selected because they have analytical abilities, and the ability to make decisions based on the law as it relates to the facts. Each hearing officer shall have the expertise to read briefs, conduct research, make evidentiary rulings, and write decisions. Each hearing officer shall be qualified based on education, training, experience and Utah licensing in the relevant profession: attorneys with land use experience, urban planning or public administration professionals with at least a bachelor's degree, and building official professionals with relevant certification. Each hearing officer shall have the expertise to conduct administrative hearings with due process protections, create a record of the hearing, and render a written decision in a timely fashion. Each hearing officer shall be an independent contractor, and be compensated as set forth in a professional service agreement with the county. The hearing officer shall not participate in any appeal where there is a conflict of interest. (Ord. 2022-1205-O, 3-15-2022; amd. Ord. 2024-1251-O, 2-25-2024)

   A.   General Procedures for all Hearing Officer Appeals:

      1.   Hearings are convened on a case-by-case basis when a written notice of appeal and accompanying required documentation is received by the community development department.

      2.   Documentation required by the appellant:

         a.   Notice of appeal.

         b.   Accompanying written documentation citing all alleged errors in any order, requirement, decision, or determination made by the land use authority in its final administrative decision; citations to all controlling provisions of the ordinances and what specific error is claimed; any claims of illegality; and all appellant's theories of relief for the administrative appeal, and for any subsequent appeal to the district court. The appellant shall present to the hearing officer every theory of relief that it could raise in district court.

         c.   Appeal fee in accordance with the fee schedule.

         d.   Other documentation in accordance with the schedule established by the hearing officer.

      3.   Documentation required by the appellee includes a response and other documentation submitted in accordance with a schedule established by the hearing officer.

      4.   A hearing officer with requisite qualifications is assigned by the county attorney's office from the list of approved hearing officers. If a qualified hearing officer has not yet been approved, the county attorney's office shall expeditiously seek county commission approval of candidates pursuant to section 5.

      5.   A documentation schedule and hearing date is set by the hearing officer.

      6.   Notice of the hearing date is sent by the community development department to appellant and appellee. Hearings will be conducted using a video conferencing platform where the audio can be recorded and stored as a record for sixty (60) days.

      7.   The proceedings shall be conducted respecting the due process rights of each of the participants. Only the parties or their representatives or witnesses shall be heard or present evidence at the appeal hearing. The appeal hearing is not a public meeting or hearing.

      8.   Outside of the hearing, the parties or their representatives shall not discuss substantive matters pertaining to a pending appeal with the hearing officer in an effort to influence the decision on the matter. It is not a violation of this section to speak with the hearing officer about general or procedural matters not related to the substance of the appeal, which include but are not limited to the date, time, or place of the hearing.

      9.   The hearing is intended to be informal in nature. Formal rules of evidence and civil procedure, including discovery, do not apply. The Utah rules of civil procedure and evidence shall be used as guidelines but shall not be binding. The hearing officer may consider any relevant, nonprivileged oral or documentary evidence presented.

      10.   If the appellant fails to appear at the hearing, without good cause, the failure shall be deemed a withdrawal of the appeal and a waiver of any appeal rights.

      11.   The hearing officer shall make written findings of fact, conclusions of law, and a final decision. The decision may affirm or reverse, in whole or in part, the decision being appealed. The written decision shall be issued within thirty days of the final hearing, and the community development department shall notify the parties of the decision by mail and email.

      12.   If the hearing officer affirms the administrative decision of the county, the original final administrative decision shall remain in effect. If the hearing officer re-verses the decision, in whole or in part, the final administrative decision will be adjusted accordingly.

      13.   The hearing officer shall cause a record of its proceedings to be kept, including a record of all evidence, documents, decisions, and an audio recording of oral arguments and testimony presented at the hearing. The hearing officer shall transmit the record to the community development department to be retained for sixty (60) days. If the hearing officer's decision is appealed to district court, the record will become the entire record transmitted to, and considered by, the district court. No additional information, evidence, or theories of relief shall be presented to the district court.

      14.   The decision of the hearing officer is effective on the date of the written decision, and it constitutes a final decision under Utah Code Ann.§ 17-27a-801. Any appeal to the District Court shall be within thirty (30) days of the date of the written decision.

      15.   Filing a petition with the district court does not stay the decision of the hearing officer absent county agreement or a court order.

   B.   Land Use Decision Appeals, Additional Procedures:

      1.   Only a final decision in which the land use authority has applied a land use regulation to a particular application, person, or parcel may be appealed to a hearing officer.

      2.   At all times, the appellant bears the burden of proof that the land use authority's decision was in error.

         a.   The administrative decision is presumed correct, unless there is substantial evidence that an error in the application or interpretation of the land use ordinance occurred.

         b.   For legal issues, the hearing officer shall apply a correctness standard to its review, and determine if the land use authority correctly applied the plain meaning of the land use regulation.

         c.   For factual issues, the hearing officer shall examine the facts on the record and determine if the record on appeal includes substantial evidence for each essential finding of fact.

         d.   An administrative decision shall not be disturbed if there is substantial evidence in the record that discloses a reasonable basis for the decision. Inasmuch as land use authorities and administrative officials have specialized knowledge in the field of planning and land use, their decisions should be disturbed only if the hearing officer determines that the decision was not supported by substantial evidence, or the decision was arbitrary, capricious or illegal.

         e.   For affirmative defenses, the burden of proof shall be on the person raising the defense.

      3.   The hearing officer shall:

         a.   Determine the correctness of the land use authority's interpretation and application of the plain meaning of the land use regulations; and

         b.   Interpret and apply a land use regulation to favor a land use application un-less the land use regulation plainly restricts the land use application.

   C.   Variance Decision Appeals, Additional Procedures:

      1.   Criteria: The hearing officer shall grant a variance only if:

         a.   Literal enforcement of the zoning ordinance would cause an unreasonable hardship for the appellant that is not necessary to carry out the general purpose of the zoning ordinance;

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

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

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

         e.   The spirit of the zoning ordinance is observed and substantial justice is done.

      2.   Unreasonable Hardship: In determining whether enforcement of the zoning ordinance would cause unreasonable hardship under this subsection, the hearing officer 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; and

         c.   Is not self-imposed or economic.

      3.   Special Circumstances: The hearing officer may find that special circumstances exist only if the special circumstance:

         a.   Relates to the hardship complained of; and

         b.   Deprives the property of privileges granted to other properties in the same zone.

      4.   The appellant bears the burden of proving that all of the requirements justifying a variance have been met.

      5.   The hearing officer may not grant a use variance.

      6.   The hearing officer's written decision shall include any conditions of approval it determines are reasonable and necessary to mitigate the impact of granting a variance.

      7.   A variance "runs with the land."

      8.   A variance shall expire if the appellant 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.

   D.   Building Department, Building Official or Fee Appeals, Additional Procedures:

      1.   Pursuant to Utah Code Ann.§ 17-27a-509, and Titles 9 and 10 of this code, the county hereby establishes an appeal process for all such fees.

      2.   At all times, the appellant bears the burden of proof, by substantial evidence, that the land use authority's fee was in error.

      3.   The hearing officer may affirm or decrease the fee amount upon findings of fact and conclusions of law in its written decision.

   E.   Judicial Review: Any interested party adversely affected by the hearing officer's decision may file, within thirty days of the written decision, a petition in the district court for a re-view of decision. The record on appeal to the district court shall be the record that was created by the hearing officer, and at the appeal hearing, and transmitted to the community development department. The right to petition the district court for review is lost if the petition is filed more than thirty days after the decision. The standard for the review shall be the standard provided in Utah Code Ann. § 17-27a-801. The appellant shall not present any information, evidence or theory of relief that was not presented at the appeal hearing. (Ord. 2022-1205-O, 3-15-2022; amd. Ord. 2023-1231-O, 4-18-2023; Ord. 2024-1251-O, 2-25-2024)

 

(Ord. 2022-1205-O, 3-15-2022; amd. Ord. 2024-1251-O, 2-25-2024)