Chapter 5 – Board of Adjustment

5.1 APPOINTMENT OF TERM
5.2 ORGANIZATION
5.3 POWERS AND DUTIES
5.4 VARIANCE
5.5 STANDARDS
5.6 BUILDING PERMITS
5.7 NOTICE TO COUNCIL OF VARIANCE
5.8 ZONE BOUNDARY ADJUSTMENT
5.9 VOTE REQUIRED
5.10 STANDARDS FOR REVIEW OF APPEALS
5.11 DECISION ON APPEAL
5.12 DISTRICT COURT REVIEW OF BOARD OF ADJUSTMENT DECISION

5.1 APPOINTMENT OF TERM

  1. The Board of Adjustment (Board) shall consist of five members and whatever alternate members that the Mayor considers appropriate.  One member, but not more than one member of the Planning Commission shall be a member of the Board of Adjustment. Another member shall be a member of the City Council. The Mayor shall appoint the members at the beginning of the calendar year and alternate members with the advice and consent of the City Council for a term of six years, provided that the term of one member shall expire each two years. A member may only be re-appointed for one additional six-year term.
  2. No more than two alternate members may sit at any meeting of the Board of Adjustment at one time.
  3. The Mayor may remove any member of the Board of Adjustment for cause if written charges of non-attendance of three duly called meetings of the board or if non-performance is filed against the member with the Mayor.  The Mayor shall provide the member with a public hearing if he/she requests one.
  4. The Mayor, with the advice and consent of the City Council, shall fill any vacancy.  The person appointed shall serve for the unexpired term of the member or alternate member whose office is vacant.

5.2 ORGANIZATION

  1. The Board of Adjustment shall organize and elect a chairperson and may adopt rules for its own proceedings as it deems necessary. Any member may be re-elected for an additional term as Chairperson. There is no limit to the number of terms a member may serve as Chairperson. If for any reason, the position of Chairperson is vacated before the elected member’s term has expired, the Board of Adjustment shall elect from among its members a successor, who shall serve for the remainder of the unexpired term.
  2. The Board of Adjustment shall meet at the call of the chairperson and at any other times that the Board of Adjustment determines.
  3. The chairperson, or in the absence of the chairperson, the acting chairperson, may administer oaths and compel the attendance of witnesses.
  4. All meetings of the Board of Adjustment shall comply with the requirements of Utah Title 52, Chapter 4, Open and Public Meetings, or any successor statute enacted in its place.
  5. The Board of Adjustment shall 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 keep records of its examinations and other official actions.  The Board of Adjustment may, but is not required to, have its proceedings contemporaneously recorded by a court reporter or a tape recorder.  The Board of Adjustment shall file its records in the office of the City Recorder, which shall be the office of the Board of Adjustment.  All records in the office of the Board of Adjustment are public records.
  6. The concurring vote of three members of the Board of Adjustment is necessary to decide in favor of the appellant.
  7. 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.

5.3 POWERS AND DUTIES

The powers and duties of the Board of Adjustment shall be the appeal authority as follows:

  1. Hear and decide variances from the terms of the zoning ordinance.                                
  2. Hear appeals on decisions applying to the zoning ordinances of Fountain Green City.

5.4 VARIANCE

Any person or entity desiring a waiver or modification of the requirements of the zoning ordinance 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 Board of Adjustment (through the Mayor) for a variance from the terms of the zoning ordinance.

5.5 STANDARDS

  1. The Board of Adjustment may grant a variance only if each of the following conditions are met:
    1.  Literal enforcement of the zoning ordinance would cause an unreasonable hardship for the applicant that is not necessary to carry out the general purpose of the zoning ordinance;
    2. There are special circumstances attached to the property that do not generally    apply to other properties in the same district;
    3. Granting the variance is essential to the enjoyment of a substantial property right possessed by other property in the same district;
    4. The variance will not substantially affect the general plan and will not be contrary to the public interest; and 
    5. The spirit of the zoning ordinance is observed and substantial justice done.
  2. In determining whether or not enforcement of the zoning ordinance would cause unreasonable hardship under subsection A, above, the Board of Adjustment may not find an unreasonable hardship unless the alleged hardship:
    1. Is located on or associated with the property for which the variance is sought; and 
    2. Comes from circumstances peculiar to the property, not from conditions that are general to the neighborhood. 
  3. In determining whether or not enforcement of the zoning ordinance would cause an unreasonable hardship under subsection A, above, the Board of Adjustment may not find an unreasonable hardship if the hardship is self-imposed or economic.
  4. In determining whether or not there are special circumstances attached to the property under subsection A, above, the Board of Adjustment 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 district.
  5. The applicant shall bear the burden of proving all of the conditions justifying a variance have been met.
  6. Variances run with the land.
  7. The Board of Adjustment may not grant use variances.
  8. In granting a variance, the Board of Adjustment may impose additional requirements on the applicant that will:
    1. Mitigate any harmful effects of the variance; or
    2. Serve the purpose of the standard or requirement that is waived or modified.

5.6 BUILDING PERMITS

The Planning Commission shall not issue any building permit for any building, construction or repair of any building unless such fully conforms to all zoning regulations or ordinances of this municipality in effect at the time of application. No permit shall be issued for any building or structure or part thereof on any land located between the mapped lines of any street as shown on any official street map adopted by the governing body. If a variance is granted by the Board of Adjustment then the applicant must apply to the Planning Commission for the required permit. 

5.7 NOTICE TO COUNCIL OF VARIANCE

Before any application for a variance is heard by the Board of Adjustment, the Board of Adjustment shall give Fountain Green City at least 15 days notice of any hearing to consider the application.

5.8 ZONE BOUNDARY ADJUSTMENT

Where a zone boundary line divides a lot in a single ownership at the time of the passage of this chapter, the Board may permit a use authorized on either portion of such lot to extend not more than 50 feet into the other portion of the lot.

5.9 VOTE REQUIRED

The concurring vote of three members of the Board shall be necessary to decide in favor of the Appellant on any matter upon which it is required to affect any variation in such ordinance.

5.10 STANDARDS FOR REVIEW OF APPEALS

  1. Appeal Process.
    1. 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 or interpretation of the zoning ordinance.
    2. Any person, including any officer, department, board or bureau of Fountain Green City affected by a decision administering or interpreting a zoning ordinance or affected by the grant or refusal of a building permit or by any other decisions of the Land Use Authority in the administration or interpretation of the zoning ordinance may appeal such decision to the Board.  An appeal must be made within 30 days from the date of such decision by filing with the City Recorder a written notice of appeal specifying the grounds thereof.  When an appeal is taken from a decision of the Land Use Authority, the City Recorder shall forthwith transmit to the Board all papers, if any, constituting the record upon which the action appealed from was taken. 
    3. An appeal filed in accordance with this section stays all proceedings in the appeal action, unless the officer from whom the appeal is taken certifies to the Board that by reason of facts stated in the certificate the stay would in his/her opinion cause imminent peril to life or property.  In such cases, proceedings shall not be stayed otherwise than by restraining order which may be granted by the Board or by the district court on application and notice and on due cause shown.
    4. The Board shall fix the time for hearing any appeal within 15 days of the date of filing such appeal with the City Recorder and shall give public notice thereof in accordance with the Utah Open and Public Meetings Act, as well as notice to the parties in interest.
    5. Proceedings and hearings before the Board shall be had pursuant to rules adopted by the City and in conformance with general principles of due process.  Any party in interest may appear at such hearing in person, by agent, or by an attorney of his/her choice.
    6. The person or entity making the appeal has the burden of proving that an error has been made.
  2. Appeal Limits.
    1. Only decisions applying the zoning ordinance may be appealed to the Board of Adjustment.
    2. A person may not appeal, and the Board may not consider, any zoning ordinance amendments.
    3. Appeals may not be used to waive or modify the terms or requirements of the zoning ordinance.

5.11 DECISION ON APPEAL

In exercising the above-mentioned powers the Appeal Authority may affirm, wholly or partly, or may modify the order, requirement, decision or determination of a Land Use Authority. 

5.12 DISTRICT COURT REVIEW OF BOARD OF ADJUSTMENT DECISION

  1. Any person adversely affected by any decision of the Board of Adjustment may petition the district court for a review of the decision.
  2. In the petition, the plaintiff may only allege that the Board of Adjustment’s decision was arbitrary, capricious, or illegal.
  3. The petition is barred unless it is filed within 30 days after the Board of Adjustment’s decision is final.
    1. The time to file a petition is tolled from the date a property owner files a request for arbitration of a constitutional taking issue with the private property ombudsman under Section 63-34-13 (3)(a) Utah Code Annotated (1953 as amended) until 30 days after:
      1. The arbitrator issues a final award; or
      2. The private property ombudsman issues a written statement under Section 63-34-13(4)(b) Utah Code Annotated declining to arbitrate or to appoint an arbitrator.
    2. A tolling under Subsection 3(b)(i) operates only as to the specific constitutional taking issues that are the subject of the request for arbitration filed with the private property ombudsman by a property owner.
    3. A request for arbitration filed with the private property ombudsman after the time under Subsection 3(a) to file a petition has expired does not affect the time to file a petition.
  4. Records of proceedings.
    1. The Board of Adjustment shall transmit to the district court the record of its proceedings including its minutes, findings, orders and, if available, a true and correct transcript of its proceedings.
    2. If the proceeding was taped, a transcript of that tape recording is a true and correct transcript for purposes of this subsection.
    3. If there is a record, the district court’s review is limited to the record provided by the Board of Adjustment.
    4. The court may not accept or consider any evidence outside the Board of Adjustment’s 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.
    5. If there is no record, the court may call witnesses and take evidence.
  5. The court shall affirm the decision of the Board of Adjustment if the decision is supported by substantial evidence in the record.
    1. Petitioning the Board of Adjustment.
      1. The filing of a petition does not stay the decision of the Board of Adjustment.
      2. Stays of Board of Adjustment decisions:
        1. Before filing a petition under this section or a request for mediation or arbitration of a constitutional taking issue under Section 63-34-13 Utah Code Annotated (1953 edition), the aggrieved party may petition the Board of Adjustment to stay its decision.
        2. 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 to be in the best interest of the City.
        3. c) After a petition is filed under this section or a request for mediation or arbitration of a constitutional taking issue is filed under Section 63-34-13 Utah Code Annotated (1953 edition as amended), the petitioner may seek an injunction from the district court staying the Board of Adjustment’s decision.
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Final copy approved by Fountain Green City Council February 18, 2008.