10-4-3 APPEALING LAND USE AUTHORITY'S DECISION

An applicant, a board or officer of the Town, or any person adversely affected by the Land Use Authority's decision applying a land use ordinance may, within the time period provided in subsection A of this section, appeal that decision to the Board of Adjustment by alleging there is an error in an order, requirement, decision, or determination made by the Land Use Authority in the administration or interpretation of the land use ordinance, or in the decision applying the land use ordinance. When an appeal is taken from a decision of the Land Use Authority, the Town Clerk shall immediately transmit to the Board of Adjustment all documents, if any, constituting the record upon which the action appealed from was taken. A. Time To Appeal; Filing Fee: Any appeal, pursuant to this section, must be filed in writing with the Office of the Town Recorder within ten (10) calendar days of the issuance of the written decision or vote of the Land Use Authority, whichever first occurs, applying the land use ordinance. Upon the filing of any appeal with the Town Recorder, the appellant shall pay to the Town Recorder, the fee prescribed as set in the Town fee schedule. The Town Recorder shall transmit no papers or record to the Board of Adjustment and the Board of Adjustment shall not consider any appeal unless and until such fee has been paid. B. Time For Hearing Appeal: Board of Adjustment should hear the appeal within thirty (30) days of the date the appeal was filed. C. Written Statement Setting Forth Theories Of Relief Required: The appellant shall deliver to the Board of Adjustment and all other participants, five (5) business days prior to the hearing, a written statement setting forth each and every theory of relief he intends to raise at the hearing, along with a brief statement of facts in support thereof. D. Conditions Precedent To Judicial Review: No person, board, or officer of the Town may seek judicial review of any decision applying the land use ordinance until after challenging the Land Use Authority's decision in accordance with this section. No theory of relief may be raised in the District Court unless it was timely and specifically presented to the Board of Adjustment. E. Standard Of Review And Burden Of Proof On Appeal: The Board of Adjustment shall, on appeal, presume that the decision applying the land use ordinance is valid and determine only whether or not the decision is arbitrary, capricious, or illegal. The burden of proof on appeal is on the appellant. F. Due Process Rights: The Board of Adjustment shall respect the due process rights of each participant. Any appellant may appear at any hearing or other proceeding before the Board of Adjustment in person or by an attorney of his/her choice. G. Stay On Appeal: 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 of Adjustment 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 of Adjustment or by the District Court on application and notice and on due cause shown. H. Conditional Use Permit Appeals: The Board of Adjustment shall continue to hear and decide appeals from the Town Council decisions regarding conditional use permits. I. Direct Appeal To District Court: Notwithstanding the foregoing, decisions of the Town Council relative to adopting or amending the General Plan or any other land use ordinance may only be appealed directly to the District Court. J. Decision Of Appeal: In exercising the above-mentioned powers and authority, the Board of Adjustment may affirm or reverse, wholly or in part, or may modify the order, requirement, decision or determination of the Land Use Authority.