Meeting Called to Order: Chair Laura Justice

Board of Adjustment will hold a training meeting in conjunction with the Five County Association of Governments

Adjourn

Present: Boardmembers: Laura Justice, Bryan Bracken, James Blackmore, Pat Andregg; Staff: Derek Imlay, June Jeffery, Kyle Gubler; Public: Anna Andregg, Ray Justice; Toquerville Board of Adjustment - Joseph Elison, DC Young, G Lunt, Aaron Langston; Virgin Board of Adjustment – Royden Card, Tom Miller; Hurricane Board of Adjustment – Darrell Folkersen; Rockville Board of Adjustment – Linda Behling; Five County Presenters – Darren Janes, Gary Zabriskie

Meeting Called to Order: Chair Laura Justice at 6:00 p.m. Invocation and Pledge by Ray Justice.

Gary Zabriskie and Darren Janes from the Five County Association of Government presented a training for municipal Appeal Authority. Training included a video discussing appeals and variances. Cities are now allowed to designate who will act as appeal authority, including boards or individuals. That authority may be divided between more than one body as long as the city designates that division and authority in code. The appeal code is found in Utah Code 10-91-701.

Appeal Authorities are required to elect a chair, have established rules and roles, follow the public meeting processes, post on the Utah public meeting website, each committee member receives the same information, and there has to be a quorum present to make a decision.

Minutes are critical as they will be used if the decision is appealed to the District Court. They should not only reflect the decision, but how the decision was reached.

There are two types of appeals that the board hears – administrative appeals to land use ordinances, and variances.

Appeals may be heard from the beginning, or may be made from the record. Most appeals hear from the beginning. The board is to decide whether the code was interpreted or applied correctly. They must cite the law to be appealed, and the minutes must reflect the reading of the law. The appeal can only be applied as the law is written. The board cannot create new law.

The appeal hearing is viewed within a narrow scope. Was the law correctly interpreted, was the law applied correctly, and/or was there due process afforded the appellant?

If there was no error, the board must uphold the decision. The appellant has the burden of proof.

Variance requests are fewer in number if the planning is good, and is the most common use of the board of adjustment. The variance allows for a waiver or modification of the zoning code in a limited number of circumstances, and is used to reduce takings findings.

There is a specific 5-step process to determine if the variance should be allowed. The appellant is responsible to show that the variance is warranted according to those five steps. They are: 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; There are special circumstances attached to the property that do not generally apply to other properties in the same district; Granting the variance is essential to the enjoyment of a substantial property right possessed by other property in the same district; The variance will not substantially affect the general plan and will not be contrary to the public interest; and The spirit of the zoning ordinance is observed and substantial justice is done.

Furthermore, the definition of hardship has to be associated with the property – there is a hardship that is peculiar to the property in question; and the hardship cannot be economic or self-imposed. Variances are not applied for a “use” variance.

All five items must be met in the minutes. However, if any one item is reason for denial, the process can stop at that point, but it is probably prudent to complete the review. The motion to approve requires approval to all five.

Board members should declare any conflicts of interest and need to be able to serve with fairness.

Adjourn: By Chair Laura Justice at 7:45 p.m.


Minutes taken by June Jeffery

                          

Chair, Laura Justice

 

 

Date approved, October 13, 2009