11-3-2 Appeal Authority

A. Appeal Authority Defined: The authority to hear requests for variances from the terms of the land use ordinances and appeals from decisions applying the land use ordinances shall be vested in the Newton Administrative Appeals Hearing Officer (also referred to as the Appeals Hearing Officer or Hearing Officer). B. Appointment of Newton Administrative Appeals Hearing Officer: The mayor shall appoint the Administrative Appeals Hearing Officer with the advice and consent of the Town Council. The Administrative Appeals Hearing Officer may serve until a replacement is appointed. C. 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 this section, appeal that decision to the administrative appeals hearing officer by alleging there is error in any order, requirement, decision, or determination made by the land use authority in the administration or interpretation of the land use ordinance. 1. Time to Appeal: Any appeal, pursuant to this section, must be filed in writing with the Town Recorder within ten calendar days of the issuance of the written decision applying the land use ordinance. When an appeal is taken from a decision of the Land Use Authority, the Town Recorder shall forthwith transmit to the Appeals Hearing Officer all papers, if any; constituting the record upon which the action appealed from was taken. 2. Time for Hearing Appeal; Notice: The Administrative Appeals Hearing Officer should hear the appeal within 15 to 30 days of the date the appeal was filed. Public Notice of the time and place fixed for hearing any appeal shall be given in accordance with the Utah Open and Public Meetings Act, as well as notice to the parties in interest, by the Administrative Appeals Hearing Officer or the officer’s designee. 3. Written Statement Setting Forth Theories of Relief Required: The appellant shall deliver to the Administrative Appeals Hearing Officer and all other participants, five 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. 4. Condition 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 part. No theory of relief may be raised in the District Court unless it was timely and specifically presented to the Administrative Appeals Hearing Officer. 5. Standard of Review and Burden of Proof on Appeal: The Administrative Appeals Hearing Officer 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. 6. Due Process Rights: The Administrative Appeals Hearing Officer shall respect the due process rights of each participant. Any party in interest may appear at such hearing in person, by agent, or by an attorney of his/her choice. 7. 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 Appeals Hearing Officer 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 Appeals Hearing Officer or by the District Court on application and notice and on due cause shown. 8. 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. 9. Conditional Use Permit Appeals: The Town Council shall continue to hear and decide appeals from Planning Commission decisions regarding conditional use permits. 10. Decision on Appeal: In exercising the above-mentioned powers, the Appeals Hearing Officer may affirm or reverse, wholly or partly, or may modify the order, requirement decision or determination of a Land Use Authority. D. Variances: Any person or entity desiring a waiver or modification of the requirements of a land use ordinance as applied to a parcel of property that he owns, leases, or in which he hold some other beneficial interest may apply to the Administrative Appeals Hearing Officer for a variance from the terms of the ordinance. 1. The Administrative Appeals Hearing Officer may grant a variance only if: a. 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; 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 property 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 land use ordinance is observed and substantial justice done. 2. In determining whether or not enforcement of the land use ordinance would cause unreasonable hardship under Subsection (1)(a), the Administrative Appeals Hearing Office 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. 3. In determining whether or not enforcement of the land use ordinance would cause unreasonable hardship under Section (1)(a), the Administrative Appeals Hearing Officer 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 (1)(a), the Administrative Appeals Hearing Officer may find that special circumstances exist only if the special circumstances; a. Relate to the hardship complained of; and b. Deprive the property of privileges granted to other properties in the same zone. 5. The applicant shall bear the burden of proving that all of the conditions justifying a variance have been met. 6. Variances run with the land. 7. The appeal authority may not grant a use variance. 8. In granting a variance, the appeal authority may impose additional requirements on the applicant that will: a. Mitigate any harmful effects of the variance; or b. Serve the purpose of the standard or requirement that is waived or modified. E. Conflict of Law: To the extent any provision of this Ordinance conflicts with state law, state law shall prevail; and reference is made to the provisions of 10-9a-701 to 708, entitled Appeal Authority and Variances and to 10-9a-801 to 803 (both references are in Utah Code Annotated, 1953, as amended) entitled District Court Review, and as they might be amended hereafter. To the extent any provisions of said statutes are not included herein; said provisions of state law are incorporated herein by reference and shall govern the procedures therein provided by Newton Town.