Chapter 18.20
LAND USE AUTHORITIES AND APPEAL AUTHORITIES

Sections:

18.20.010    Powers and duties matrix.

18.20.020    City council.

18.20.030    Appeal authority.

18.20.040    Building official.

18.20.050    Zoning administrator.

18.20.010 Powers and duties matrix.

Below is a matrix outlining the powers and duties of each land use authority and appeal authority.

 

Decision to Be Made	Advisory Body	Deciding Body	Appellate Body	Time to Appeal
General Plan: Adoption or Amendments	Planning Commission	City Council	District Court	30 days from final decision
Land Use Ordinance: Adoption or Amendments	Planning Commission	City Council	District Court	30 days from final decision
Annexation Policy Plan	Planning Commission	City Council	City Attorney	30 days from final decision
Annexation Application	Planning Commission	City Council	City Attorney	30 days from final decision
Appeal of Administrative Decision		City Council	District Court	30 days from final decision
Conditional Use Permit	Zoning Administrator	Planning Commission	City Council	30 days from final decision
Nonconforming Uses, Noncomplying Structures	Zoning Administrator	Planning Commission	City Council	30 days from final decision
Subdivision Ordinance	Planning Commission	City Council	District Court	30 days from final decision
Subdivision Application and Plat Approval	Planning Commission	City Council	City Attorney	30 days from final decision
Vacation or Changing a Subdivision Plat	Planning Commission	City Council	City Attorney	30 days from final decision
Variances		City Council	District Court	30 days from final decision
Amendment to Platted Street	Planning Commission	City Council	City Attorney	30 days from final decision
Business License	Planning Commission	City Council	City Attorney	30 days from final decision
Building Permit	Planning Commission	Building Official	District Court	30 days from final decision
Permitted Uses		Zoning Administrator	City Council	30 days from final decision

[Ord. 2010-5. Code 1988 § 11-4.1].

18.20.020 City council.

A. Appointments.

1. Planning Commission. The mayor, with the advice and consent of the city council, shall appoint a planning commission for the city of Helper.

2. Appeal Authority. The mayor, with the advice and consent of the city council, shall appoint an appeal authority or authorities to hear land use appeals and variances. By ordinance Helper City may designate a separate appeal authority to hear requests for variances than it designates to hear appeals. Also by ordinance the city may designate one or more separate appeal authorities to hear distinct types of appeals of land use authority decisions.

3. Zoning Administrator. There is hereby created the office of zoning administrator. The planning commission chairman is hereby appointed as the zoning administrator. The zoning administrator is hereby charged with the administration and enforcement of this code and other duties as set forth by the city council. (See HMC 18.20.010, Powers and duties matrix.) The city council may affix compensation for an appointed zoning administrator.

4. Planning Administrator. The city council may appoint a planning administrator subject to the prior recommendation of the planning commission.

B. Adopt, Implement and Amend – Comprehensive Plan.

1. Adoption of Comprehensive Plan. The Helper City council shall adopt a comprehensive plan, which shall include elements on land use, transportation, and affordable housing. An annexation policy plan shall also be required in order for the city to annex new property into the city. The Helper City council shall also have the power to adopt addenda to the comprehensive plan or separate plans that include but are not limited to an affordable housing plan, annexation policy plan, capital improvements plan, and economic development plan.

2. Implementation of Comprehensive Plan. The Helper City council shall be responsible for implementing the goals, objectives and general intent of the comprehensive plan. Tools usable for implementing the comprehensive plan shall include but are not limited to the following:

a. Land-use ordinance.

b. Zoning map.

c. HMC Title 17, Subdivisions.

d. Affordable housing plan.

e. Annexation policy plan.

3. Amendment of Comprehensive Plan. From time to time it may become necessary to amend the comprehensive plan to better reflect present and future goals and objectives. The Helper City council shall have the right to amend the comprehensive plan; provided, that the planning commission has reviewed the amendments and made recommendations to the city council concerning those amendments and that the proper meetings and hearings have been held with proper notice for said meetings and hearings. (See HMC 18.15.190, Notice matrix.)

C. Adopt, Enforce and Amend – Zoning Map.

1. Adoption of Zoning Map. The Helper City council shall adopt an official zoning map, which shall be included as part of the city’s comprehensive plan.

2. Enforcement of Zoning Map. The Helper City council shall be responsible for enforcing the boundaries of each zoning district and the regulations in each zoning district. If there is dispute as to a zoning boundary it shall be interpreted by the city attorney acting as an appeal authority.

3. Amendment of Zoning Map. From time to time it may be necessary to amend the zoning map to better reflect present and future land-use patterns and objectives. The Helper City council shall have the right to amend the zoning map; provided, that the planning commission has reviewed the map amendments and made its recommendations to the city council concerning those amendments and that the proper meetings and hearings have been held with proper notice for said meetings and hearings. (See HMC 18.15.190, Notice matrix.)

D. Adopt, Enforce and Amend – Land Use Ordinance.

1. Adopt Land Use Ordinance. The Helper City council shall have the power to adopt all land use controls that it deems necessary to promote the goals and objectives of the comprehensive plan and to protect the public’s health, safety and welfare. This includes but is not limited to a land use or zoning ordinance.

2. Enforcement of Land Use Ordinance. The Helper City council shall have the power to enforce its adopted land use or zoning ordinance and shall act as the land use authority for all of the different types of land use decisions listed in HMC 18.20.010, Powers and duties matrix.

3. Amendment of Land Use Ordinance. From time to time it may become necessary for an amendment to be made to the Helper City land use ordinance. The Helper City council shall have power to amend the Helper City land use ordinance; provided, that the planning commission has reviewed the proposed amendments and made its recommendations to the city council concerning those amendments and that the proper meetings and hearings have been held with proper notice for said meetings and hearings. (See HMC 18.15.190, Notice matrix.)

E. Adopt, Enforce and Amend – Subdivision Ordinance.

1. Adopt Subdivision Ordinance. The Helper City council shall have the power to adopt all land use controls that it deems necessary to promote the goals and objectives of the comprehensive plan and to protect the public’s health, safety and welfare. This includes but is not limited to the adoption of a subdivision ordinance.

2. Enforcement of Subdivision Ordinance. The Helper City council shall have the power to enforce its adopted subdivision ordinance and shall act as the land use authority for all of the different types of land use decisions listed in HMC 18.20.010, Powers and duties matrix.

3. Amendment of Subdivision Ordinance. From time to time it may become necessary for an amendment to be made to the Helper City subdivision ordinance. The Helper City council shall have power to amend the Helper City subdivision ordinance; provided, that the planning commission has reviewed the proposed amendments and made its recommendations to the city council concerning those amendments and that the proper meetings and hearings have been held with proper notice for said meetings and hearings. (See HMC 18.15.190, Notice matrix.) [Ord. 2010-5. Code 1988 § 11-4.2].

18.20.030 Appeal authority.

A. Appeal Authority Established.

1. An appeal authority is hereby established in the city of Helper, Utah, and the Helper City council shall hereby be established as the appeal authority for the city of Helper, and shall have the power to act on all appeals and variances of all land use decisions in which the city council or any of its members was not already a land use authority. See HMC 18.20.010, Powers and duties matrix.

2. An appeal authority is hereby established in the city of Helper, Utah, and the city attorney for the city of Helper, Utah, shall act as the appeal authority on all land use decisions which are listed in HMC 18.20.010, Powers and duties matrix.

B. Hear and Decide Land Use Appeals. It shall be the power and duty of the appeal authority to hear and decide only land use appeals pertaining to this title. A person may not appeal, and the appeal authority may not consider, any zoning ordinance amendments. Appeals may not be used to waive or modify the terms or requirements of the land use ordinance.

1. Standards for Review of Appeals.

a. An applicant, a board or officer of the municipality, or any person adversely affected by a Helper City land use authority’s decision administering or interpreting this title, may appeal that decision to the appeal authority by alleging that there is an error in any order, requirement, decision, or determination made by the land use authority in the administration or interpretation of this title.

b. The person or entity making the appeal has the burden of proving that an error has been made in administering this title.

c. It shall be required of an adversely affected party to present to the appeal authority every theory of relief that it can raise in district court. The appeal authority shall determine the correctness of a decision of the land use authority in its interpretation and application of the city’s land use ordinances. (See HMC 18.15.170, Appeals and reconsideration process.)

d. 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 appeal authority 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 appeal authority or by the district court on application and notice and on due cause shown.

e. The appeal authority shall fix the time for hearing any appeal within 30 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. (See also HMC 18.15.190, Notice matrix, for noticing requirements.)

f. Proceedings and hearings before the appeal authority shall be had pursuant to rules adopted by the city council 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.

C. Hear and Decide 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 holds some other beneficial interest may apply to the appeal authority for a variance from the terms of the ordinance. (See HMC 18.15.190, Notice matrix, for noticing requirements.)

1. Standards for Review of Variances. The appeal authority may grant a variance only if all of the following are met:

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;

i. In determining whether or not enforcement of the land use ordinance would cause unreasonable hardship, the appeal authority may not find an unreasonable hardship if the hardship is self-imposed or economic. An unreasonable hardship shall not be found 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;

b. There are special circumstances attached to the property that do not generally apply to other properties in the same zone. In determining whether or not there are special circumstances attached to the property, 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;

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. Applicant Has the Burden of Proof. The applicant shall bear the burden of proving that all of the conditions justifying a variance have been met.

3. Variance Runs with the Land. It shall be noted that a variance runs with the land and not the applicant.

4. Use Variance Prohibited. In no circumstance shall the appeal authority grant a use variance.

5. Appeal Authority May Impose Additional Requirements. 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.

D. Interpret Zoning Map. The city attorney acting as the appeal authority shall have the power to interpret the zoning map in the event that a disputation occurs. If a zone boundary is approximately at a street, property line or right-of-way the zone boundary shall be considered that street, property line or right-of-way. If further interpretation is needed then the scale on the official zoning map shall be used. Any further disputation as to a zoning boundary shall be decided by the discretion of the acting appeal authority.

E. Takings Appeal Board. There is hereby created a takings appeal board. The Helper City attorney along with three planning commission members shall serve as the takings appeal board. If at any time there is not a sufficient number of planning commission members to act as the takings appeal board the mayor shall appoint a member or members to fill the vacancies. (See HMC 18.15.180, Constitutional takings review and appeal.)

F. District Court Review of Appeal Authority Decision.

1. Any person adversely affected by any decision of the appeal authority may petition the district court for a review of the decision.

2. In the petition, the plaintiff may only allege that the appeal authority’s decision was arbitrary, capricious, or illegal.

3.    a. The petition is barred unless it is filed within 30 days after the appeal authority’s decision is final.

b.    i. The time under subsection (F)(3)(a) of this section 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, Utah Code Annotated 1953, as amended, until 30 days after:

(A) The arbitrator issues a final award; or

(B) The private property ombudsman issues a written statement under Section 63-34-13(4)(b), Utah Code Annotated 1953, as amended, declining to arbitrate or to appoint an arbitrator.

ii. A tolling under subsection (F)(3)(b)(i) of this section operates only as to the specific constitutional taking issues that are subject of the request for arbitration filed with the private property ombudsman by a property owner.

iii. A request for arbitration filed with the private property ombudsman after the time under subsection (F)(3)(a) of this section to file a petition has expired does not affect the time to file a petition.

4.    a. The appeal authority 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.

b. If the proceeding was recorded, a transcript of that recording is a true and correct transcript for purposes of this subsection.

5.    a.    i. If there is a record, the district court’s review is limited to the record provided by the appeal authority.

ii. The court may not accept or consider any evidence outside the appeal authority’s record unless that evidence was offered to the appeal authority and the court determines that it was improperly excluded by the appeal authority.

b. If there is no record, the court may call witnesses and take evidence.

6. The court shall affirm the decision of the appeal authority if the decision is supported by substantial evidence in the record.

7.    a. The filing of a petition does not stay the decision of the appeal authority.

b.    i. 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, as amended, the aggrieved party may petition the appeal authority to stay its decision.

ii. Upon receipt of a petition to stay, the appeal authority may order its decision stayed pending district court review if the appeal authority finds it to be in the best interest of the city.

iii. 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, as amended, the petitioner may seek an injunction from the district court staying the appeal authority’s decision. [Ord. 2010-5. Code 1988 § 11-4.4].

18.20.040 Building official.

A. Issue Building Permit. It shall hereby be the power and duty of the city building official to issue building permits for the construction of buildings and structures within the city of Helper. Such permit shall not be issued until after the planning commission has reviewed the application for a building permit and has determined that the building or structure being applied for is in conformance with all city land use ordinances and codes or that a variance has been obtained from the appeal authority for the construction of the building or structure.

B. Inspections.

1. The city building official shall have the right to inspect any building or structure within the city of Helper; provided, that said inspection is done at a reasonable hour and the property owner has been notified.

2. All fees and costs associated with an inspection of a property, building, structure or development shall be the responsibility of the property owner in whose property, building, structure or development is being inspected. The city of Helper shall bear the responsibility of all inspections that are specifically requested by the city, except such inspections that are considered mandatory in the normal construction phase of any building, structure or development. [Ord. 2010-5. Code 1988 § 11-4.5].

18.20.050 Zoning administrator.

The Helper City zoning administrator shall act as the land use authority on all the land use decisions listed in HMC 18.20.010, Powers and duties matrix.

A. Review Applications. The zoning administrator shall have the power to review all applications for building permits and certificates of zoning compliance.

B. Permit Refusal. The zoning administrator shall refuse to issue any permit unless the plans of and for the proposed erection, construction, or use fully conform to all regulations in effect within the city.

C. Code Enforcement. The zoning administrator shall enforce the provisions of this code and, wherever violations occur, consult with the city attorney, post or issue citations, and prepare exhibits, testimony, and other data which may be needed in such enforcement.

D. Administrative Decisions. The zoning administrator shall render administrative decisions on those certain routine and uncontested matters as are delegated to him by the city council and pursuant to established guidelines relating thereto. [Ord. 2010-5. Code 1988 § 11-4.6].