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)