Chapter 5 Appeal Authority

ORDINANCE 10172024 FOUNTAIN GREEN CITY, UTAH AN ORDINANCE FOR FOUNTAIN GREEN CITY AMENDING CHAPTER 5 OF THE FOUNTAIN GREEN LAND USE CODE CREATING AN APPEAL AUTHORITY CODE WHEREAS, Fountain Green City is a municipal corporation duly organized and existing under the laws of State of Utah; WHEREAS, the Fountain Green City Council finds the governing body may exercise all administrative and legislative powers by resolution and ordinance, in accordance with Utah State law; WHEREAS, the Fountain Green City Council finds it is in the public interest for the municipality to adopt an Appeal Authority Ordinance for the City of Fountain Green and the adoption of this ordinance will serve that purpose; and WHEREAS, the Fountain Green City Council finds the public safety, health, and welfare of the City of Fountain Green will be better served by the adoption of this ordinance. NOW THEREFORE, The Fountain Green City Council hereby ordains that an Appeal Authority Ordinance is established and adopted as follows: In order to provide for just and fair treatment in the administration of local land use ordinances, and to ensure that substantial justice is done, there is hereby created an Appeal Authority to exercise the powers and duties provided by this section. A. Organization: The Appeal Authority shall be appointed by the mayor with the consent of the City Council. B. Powers and Duties: The Appeal Authority shall hear and decide: a. Appeals from decisions applying the land use ordinance made by the Land Use Authority as designated by the City Council; b. Variances from the terms of the land use ordinance. C. Variances: Any person or entity desiring a waiver or modification of the requirements of this ordinance as applied to a parcel of property that he owns, leases, or in which he holds some authority for a variance from the terms of the ordinance: a. The Appeal Authority may grant a variance only if all of the following five conditions are satisfied: i. literal enforcement of the ordinance would cause an unreasonable hardship for the applicant that is not necessary to carry out the general purpose of the land use ordinances: ii. there are special circumstances attached to the property that do not generally apply to other properties in the same zone; iii. granting the variance is essential to the enjoyment of a substantial property right possessed by other property in the same zone: iv. the variance will not substantially affect the general plan and will not be contrary to the public interest; v. the spirit of the land use ordinance is observed and substantial justice done b. In determining whether or not enforcement of this ordinance would cause unreasonable hardship under paragraph C, a, i. The Appeal Authority may not find an unreasonable hardship unless the alleged hardship: i. is located on or associated with the property for which the variance is sought; and ii. comes from circumstances peculiar to the property, not from conditions that are general to the neighborhood. c. In determining whether or not enforcement of the land use ordinance would cause unreasonable hardship under paragraph C,a, i, the Appeal Authority may not find an unreasonable hardship if the hardship is self-imposed or economic d. In determining whether or not there are special circumstances attached to the property under paragraph B,b., the appeal authority may find that special circumstances exist only if the special circumstances: i. relate to the hardship complained of; and ii. deprive the property of privileges granted to other properties in the same zone. e. The applicant shall bear the burden of proving that all of the conditions justifying a variance have been met. f. Variances run with the land. g. The Appeal Authority may not grant a use variance; ie, change allowance uses for that particular zone, such as changing the use from residential to commercial, etc. h. In granting a variance, the Appeal Authority may impose additional requirements on the applicant that will: i. mitigate any harmful affects of the variance; or ii. serve the purpose of the standard or requirement that is waived or modified. (Utah code 5 10-9a-702) i. The applicant shall bear all the costs incurred in the Appeal process. 2 Appeals: Appeals from decisions made by the Land Use Authority in administering or interpreting this ordinance shall be processed and reviewed in accordance with this section. a. The applicant, a board or officer of the municipality, or any person adversely affected by the land use authority's decision administering or interpreting a land use ordinance may, within 10 days, appeal that decision by alleging that there is error in any order, requirement, decision, or determination made by the land use authority in the administration or interpretation of this ordinance. b. The appellant has the burden of proving that the land use authority erred. c. The Appeal Authority shall respect the due process rights of each of the participants. d. Only those decisions in which the Land Use Authority has applied the land use ordinance to a particular application, person, or parcel may be appealed to the Appeal Authority. (Utah code 10-9a-703; 705; 706 (2); 707 (4)) 3 Review and Public Hearing Procedures: Completed applications for both variances and appeals will be reviewed by the Land Use Authority and shall forward a recommendation to the Appeal Authority for approval, approval with conditions, or denial based upon consideration and evaluation of the "Findings." The Appeal Authority shall hold at least one (1) public meeting on the application. Prior to the meeting, notice shall be given in accordance with State Law. Where a variance will affect the location of a building or structure; i.e. setbacks, etc., any affected utilities must also be notified in writing at least 7 days before the meeting, including Natural Gas, Power, or other utility which requires minimum spacing from buildings, structures, etc. Notwithstanding the notice requirements set forth above, the failure of any person or entity to receive notice shall not constitute grounds for any court to invalidate the action for which the notice was given. a. The Appeal Authority shall consider the recommendation of the Land Use Authority together with information provided by the applicant, and any statements made at the public meeting both for and against the application. The Appeal Authority may approve, approve with conditions, or deny the application. 4 Final Decision: A decision of an appeal authority is final and takes effect on the date when the appeal authority issues a written decision, or within 30 days of the decision by appeal authority; whichever is sooner. (Utah Code 5 109a-708) PREVIOUS APPEAL AUTHORITY AND BOARD OF ADJUSTMENTS CODE REPEALED This ordinance shall supersede and replace any and all prior ordinances, resolutions, or regulations governing an appeal authority and board of adjustments within the Town. All previous ordinances or parts of ordinances in conflict with this ordinance are hereby repealed. SAVING CLAUSE If any provision(s) of this ordinance shall be held or deemed to be invalid, inoperable, or unenforceable for any reason, such shall not have the effect of rendering any other provision(s) invalid, inoperable, or unenforceable to any extent. The remainder of the provisions herein shall be deemed to be separate, independent, and severable acts of Fountain Green City. EFFECTIVE DATE The provisions of this ordinance shall become effective when passed and approved by the Fountain Green City Council and after any required posting and/or publication has been accomplished according to law. CHAPTER 5 APPEAL AUTHORITY 65