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)