(A) Appointment. The appeals and variance hearing officer shall be appointed as the county appeals authority as follows.
(1) The appeals and variance hearing officer shall be appointed by the County Commission.
(2) The appeals and variance hearing officer shall be appointed for a term of one year and thereafter may be appointed for succeeding one-year terms.
(3) The appeals and variance hearing officer shall, as a minimum, have such training and experience as will qualify him or her to conduct administrative or quasi-judicial hearings regarding land use, land development and regulatory codes dealing with issues related to land use.
(4) The County Commission may remove the appeals and variance hearing officer for cause upon receipt of written charges filed against the appeals and variance hearing officer with the County Commission. The County Commission shall provide the appeals and variance hearing officer with a public hearing if one is requested.
(5) In the case of death, resignation, removal or disqualification, the position of appeals and variance hearing officer shall be promptly filled by a replacement appointed by the County Commission for the unexpired term of the previous appeals and variance hearing officer.
(6) The appeals and variance hearing officer shall be considered an independent contractor; and as such will enter into a year-long contract for services at the beginning of each appointed term. Terms for compensation and reimbursement will be determined and agreed upon in the aforementioned contract. The terms and conditions of the contract shall ultimately be approved by the County Commission prior to any individual entering into an agreement with the county to serve as the appeals and variance hearing officer.
(7) The County Commission may, from time to time, appoint an appeals and variance hearing officer pro tempore on a temporary basis when necessitated by the absence, unavailability, incapacity or disqualification of the regularly appointed appeals and variance hearing officer. Each appeals and variance hearing officer pro tempore shall, as a minimum, have qualifications which are similar to the regularly appointed appeals and variance hearing officer.
(B) Organization and procedure. The appeals and variance hearing officer shall organize and exercise his or her powers and duties as follows.
(1) The appeals and variance hearing officer may adopt reasonable policies and procedures in accordance with county ordinances to govern the conduct of its meetings and hearings and for any other purposes considered necessary for the functioning of the position of appeals and variance hearing officer. Such policies and procedures shall be approved by the County Commission before taking effect.
(2) The appeals and variance hearing officer shall hold meetings as needed to consider matters within its purview under this chapter. The appeals and variance hearing officer meeting shall be held at such times and dates as deemed necessary by the appeals and variance hearing officer. All meetings and hearings shall be properly noticed and held in accordance with the Open and Public Meetings Act set forth in UCA §§ 52-4-1 et seq., as amended. Written minutes of all meetings of the appeals and variance hearing officer shall be prepared and filed in the office of the County Clerk for review and access by the public. All records of the meetings shall be subject to the provisions of the Government Records Access Management Act, UCA §§ 63G-2-101 et seq., as amended.
(3) The decision of the appeals and variance hearing officer takes effect on the date when the appeals and variance hearing officer issues a written decision.
(C) Powers and duties. The powers and duties of the appeals and variance hearing officer shall be limited to the matters set forth below. Each of such powers and duties shall be exercised pursuant to the procedural and other provisions of this chapter:
(1) Hear and decide appeals from administrative decisions applying the provisions of this chapter where not otherwise specifically designated;
(2) Hear and decide variances from the terms of this chapter;
(3) Hear appeals related to determinations made regarding the existence, expansion or modification of nonconforming uses; and
(4) Hear appeals regarding the interpretation of the zoning maps and disputed questions on lot lines, district boundary lines or similar questions as they arise in the administration of the zoning regulations only after a written decision has been made by the land use authority.
(D) Appeals. Appeals to the appeals and variance hearing officer shall be filed in writing with the Zoning Administrator within 30 days from the date of the decision or action appealed. The officer or department from whom the appeal is taken shall forthwith transmit to the appeals and variance hearing officer all papers constituting the record upon which the action appealed was taken. Appeals shall only be accepted in which final action of the land use authority has been made, as evidenced by issuance of a permit or other final written action. The Zoning Administrator shall determine the completeness of the appeal and shall reject any appeal filed without the required fee or submitted after the 30-day deadline has expired.
(1) The appeals and variance hearing officer shall determine the correctness of a decision of the land use authority in its interpretation and application of this chapter. Only those decisions in which a land use authority has applied this chapter to a particular application, person or parcel may be appealed to the appeals and variance hearing officer. No person may challenge a legislative decision by a land use authority to the appeals and variance hearing officer, including land use ordinance amendment, General Plan amendment or interpretation or zoning map amendment.
(2) In reviewing a decision of a land use authority, the appeals and variance hearing officer must affirm that decision, unless it is found that a decision interpreting or applying this chapter was arbitrary, capricious or illegal. An appeal is not subject to de novo review.
(3) In exercising his or her powers, the appeals and variance hearing officer may reverse or affirm, in whole or in part, or modify an order, decision or determination, to make such order, decision or determination, consistent with county ordinances and other applicable laws.
(4) Appeals may not be used to waive or modify the terms or requirements of this chapter.
(E) Decisions of the appeals and variance hearing officer. At the hearing of any matter, the parties affected may appear in person with or without an attorney. The appeals and variance hearing officer shall decide all appeals and other issues brought before it within a reasonable time.
(F) Stay of proceedings. An appeal to the appeals and variance hearing officer shall not stay proceedings taken in furtherance of the action appealed from unless such proceedings are specifically stayed by order of the Zoning Administrator. An appellant may request a stay by submitting to the Zoning Administrator, in writing, an application for a stay setting forth the reasons why a stay is necessary to protect against imminent harm. In determining whether or not to grant a stay, the Zoning Administrator shall ensure that all potentially affected parties are given the opportunity to comment on the request. A ruling on the request for a stay shall be given within five days from the date the request is received by the Zoning Administrator. The Zoning Administrator, in granting a stay, may impose additional conditions to mitigate any potential harm that may be caused by the stay, including requiring the appellant to post a cash escrow financial guarantee. Within ten days of the Zoning Administrator’s decision regarding the grant or denial of a stay, any aggrieved party may appeal the decision to the appeals and variance hearing officer, whose decision will be final.
(G) Appeals from the appeals and variance hearing officer. Any person aggrieved by a final decision of the appeals and variance hearing officer may have and maintain a plenary action for relief therefrom in any court of competent jurisdiction, provided that the petition for such relief is presented to the court within 30 days from the date of the decision of the appeals and variance hearing officer.
(H) Variances.
(1) Any person or entity desiring a waiver or modification of the requirements of this chapter as applied to a parcel of property that he or she owns, leases or in which he or she holds some other beneficial interest, may apply to the appeals and variance hearing officer for a variance from the terms of this chapter.
(2) The appeals and variance hearing officer may grant a variance if:
(a) 1. Literal enforcement of this chapter would cause a hardship for the applicant that is not necessary to carry out the general purpose of this chapter;
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 property 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 this chapter is observed, and substantial justice done.
(b) In determining whether or not enforcement of this chapter would cause unreasonable hardship under division (H)(2)(a)1. above, the appeals and variance hearing officer may not find an unreasonable hardship unless:
1. a. The alleged hardship is located on or associated with property for which the variance is sought; and
b. The alleged hardship comes from circumstances peculiar to the property, not from conditions that are general in the neighborhood.
2. In determining whether or not enforcement of this chapter would cause unreasonable hardship under division (H)(2)(a)1. above, the appeals and variance hearing officer may not find an unreasonable hardship if the hardship is self-imposed or economic.
(c) In determining whether or not there are special circumstances attached to the property under division (H)(2)(a)2. above, the appeals and variance hearing officer 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.
(3) The applicant shall bear the burden of proving that all of the conditions justifying a variance have been met.
(4) Variances run with the land.
(5) The appeals and variance hearing officer may not grant use variances.
(6) In granting a variance, the appeals and variance hearing officer 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) District court review of appeals and variance hearing officer decision.
(1) Any person adversely affected by any decision of the appeals and variance hearing officer may petition the district court for a review of the decision in accordance with UCA §§ 17-27a-801 et seq., as amended.
(2) In the petition, the plaintiff may only allege that the appeals and variance hearing officer’s decision was arbitrary, capricious or illegal.
(3) The petition is barred unless it is filed within 30 days after the appeals and variance hearing officer’s decision is final. As a condition precedent to judicial review, each adversely affected person shall timely and specifically challenge the land use authority’s decision, in accordance with this chapter.
(4) The appeals and variance hearing officer 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. If the proceeding was tape recorded, a transcript of that tape recording is a true and correct transcript for purposes of this division (I)(4).
(5) If there is a record, the district court’s review is limited to the record provided by the appeals and variance hearing officer. The court may not accept or consider any evidence outside the appeals and variance hearing officer’s record unless that evidence was offered to the appeals and variance hearing officer and the court determines that it was improperly excluded.
(6) If there is no record, the court may call witnesses and take evidence.
(7) The court shall affirm the decision of the appeals and variance hearing officer if the decision is supported by substantial evidence in the record.
(8) The filing of a petition does not stay the decision of the appeals and variance hearing officer. Before filing the petition, the aggrieved party may petition the appeals and variance hearing officer to stay its decision. Upon receipt of a petition to stay, the appeals and variance hearing officer may order its decision stayed pending district court review if the appeals and variance hearing officer finds it to be in the best interest of the county. After the petition is filed, the petitioner may seek an injunction staying the appeals and variance hearing officer’s decision.
(J) Ex parte contact.
(1) Ex parte contact between the appeals and variance hearing officer and opposing parties involved in litigation with the county involving land use issues shall be prohibited. The appeals and variance hearing officer shall not participate in site or office visits, electronic communication, written communication or verbal conversation, either face to face or over the telephone, with any individual or any representative of a company or entity involved in legal proceedings with the county involving land use issues. This prohibition shall include plaintiffs who have filed suit against the county, claimants who have served a notice of claim on the county and defendants in actions filed by the county, such as those in violation of provisions of this chapter.
(2) The appeals and variance hearing officer shall be restricted from ex parte contact, including site or office visits, electronic communication, written communication and verbal conversation, either face to face or over the telephone, with any individual or representative of a company or entity when such interaction involves a request for hearings, variances or appeals of administrative decisions. This restriction on ex parte contact applies to all variances, appeals of administrative decisions or special exceptions, after an application for such is filed with the Zoning Administrator, while the application is under review by the appeals and variance hearing officer or while the application is under appeal, if an appeal is filed. The appeals and variance hearing officer shall not participate in ex parte contact with individuals or representatives of a company or entity opposed to a request for a hearing, variance or appeal of administrative decision.
(3) Receipt of written information regarding an active request for a hearing, variance, appeal of administrative decision or special exception shall be permitted, provided such written information is disclosed at the next meeting of the appeals and variance hearing officer where the matter is being heard and submitted as a part of the record of that meeting.
(Prior Code, § 8-3-11) (Ord. 11-03, passed 3-1-2011) Penalty, see § 155.999