A. Right of Appeal: Appeals to the board of adjustment may be taken by any person aggrieved by any administrative decision or action of city staff or the planning commission on matters pertaining to the interpretation and application of titles 5, 8 through 15 inclusive, or 17 of this code. The board of adjustment does not hear appeals on fees or any conditional use decision.
1. The appeal shall be filed within fifteen (15) calendar days following the decision at issue; and
2. The person filing the appeal shall file written notice with community development department specifying the reasons for the appeal. The community development staff shall, without delay, transmit to the board of adjustment all documents and records constituting the record upon which the action appealed from is taken.
B. Land Use Decisions: Unless otherwise set forth in this code, land use decisions applying to titles 5, 8 through 15 inclusive, or 17 of this code may be appealed to the board of adjustment.
1. A person may not appeal, and the board of adjustment may not consider, any land use ordinance amendments, zoning map amendments, future land use map amendments, or general plan amendments; and
2. Appeals may not be used to waive or modify the terms or requirements of this code.
C. Burden of Proof ("Error Standard"); and Scope of Review ("On the Record"): The person making the appeal has the burden of proving that an error has been made and shall present every theory of relief that the person could raise in district court. The appeal shall be "on the record", not "de novo", if the decision by the planning commission or the zoning administrator was based upon substantial evidence in the record; otherwise, the appeal shall be "de novo".
D. Standard of Review: The standard of review is the substantial evidence standard.
E. Stay of Proceedings: An appeal to the board of adjustment stays all proceedings in furtherance of the action appealed from, unless the officer from whom the appeal is taken certifies to the board of adjustment after the notice of appeal has been filed that, by reason of facts stated in the certification, a stay would, in the officer's opinion, cause imminent peril to life or property. In such case proceedings shall not be stayed except by a restraining order granted by the district court on application and notice and on due cause shown.
F. Time and Notice of Hearing: The board of adjustment shall fix a reasonable time for the hearing of the appeal, give public notice of the appeal as well as notice to the parties in interest, and shall decide the appeal within a reasonable time. Upon the hearing, a party may appear in person or by agent or by attorney.
G. Reverse of Decision: The board of adjustment, according to its own rules, may reverse any order, requirement, or determination of an administrative officer and may decide in favor of the appellant.
H. Other Possible Action: The board of adjustment, after reviewing the decision of city staff or the planning commission, may affirm, reverse, alter, or postpone any determination until further study can be conducted. This may include referring the matter back to city staff or the planning commission for additional review.
I. Variances: Hearing and deciding requests for variances from the terms of titles 5, 8 through 15 inclusive, or 17 of this code, shall be as described in title 13, chapter 7, article G of this code, or successor provisions.
J. Creation of Record: The board of adjustment shall develop a detailed record with appropriate records, findings, and conclusions as part of the final order.
(2009 Code; §15-5-4, amd. Ord. 19-52, 12-11-2019, Effective at 12 noon on January 6, 2020; Ord. 21-11, 3-24-2021; Ord. 23-11, 6-14-2023)