TOWN OF VIRGIN
Ordinance # 13-121813-1
Revising Chapter 3 of the Virgin Uniform Land Use Ordinances regarding the
Board of Adjustment
WHEREAS periodically the Town reviews its ordinances to ensure they are consistent with changing state laws, and
WHEREAS the Chair of the Board of Adjustment has undertaken such a review and found Chapter 3 inconsistent with Utah Code Ann. Title 10-9a-701 regarding the powers and duties of the Appeal Authority, and
WHEREAS the Board of Adjustment is the Appeal Authority for the Virgin Uniform Land Use Ordinance, and
WHEREAS the Chair has also suggested improving the administrative process language in the chapter, and
WHEREAS the suggested ordinance revision has undergone review and hearing by the Virgin Planning Commission,
NOW THEREFORE BE IT ORDAINED BY THE VIRGIN TOWN COUNCIL that the following revisions be made and effective upon passage and posting:
CHAPTER THREE
BOARD OF ADJUSTMENT
3.1. APPOINTMENT, TERM AND REMOVAL.
The Virgin Town Board of Adjustment (BOA) shall consist of five (5) members, each to be appointed by the Mayor with the advice and consent of the Virgin Town Council. Each member shall serve a term of five (5) years, provided that the term of one (1) member shall expire each year. Any member may be removed for cause by the Town Council upon written charges, which shall be filed with the Mayor, and after public hearing, if such public hearing is requested by the member. Vacancies shall be filled for the unexpired term of any member whose position becomes vacant in the same manner as in the case of orginal appointments. No person may serve concurrently on both the BOA and the Town Council, nor may a person serve conncurrently on both the BOA and the Planning Commission. Members of the BOA shall be selected without respect to political or religious affiliation, race, age, sexual orientation, or disability.
3.2. ORGANIZATION, RULES AND MEETINGS.
3.2.1. Organization. The BOA shall organize and elect a Chairperson and a Chairperson Pro-Tem from among its members, who shall serve for a term of one (1) year. If the BOA does not convene until after the term of the Chairperson or the Chairpeson Pro-Tem is set to expire, the term automatically is extended until the BOA convenes and elects a new Chairperson or Chairperson Pro-tem or re-elects the old Chairperson or Chairperson Pro-tem.
3.2.2. Rules. The BOA shall adoptrules for the regulation of its procedure and the conduct of its duties not inconsistent with the provisions of this Ordinance or of the State law. Such rules, to become effective, shall be approved by the Virgin Town Council.
3.3.3. Meetings. Meetings of the BOA shall be held at the call of the Chairperson and at such other times as the BOA may determine. All meetings shall comply with the Utah Code Ann. Title 52 Chapter 4 Open and Public Meetings Act, under which the BOA shall be deemed a “public body,” but not a “state public body” or a “specified local public body.” The Chairperson shall ensure that the BOA receive annual training on the Utah Open and Public Meetings Act. [1]The Chairperson, or in his or her absence, the Chairperson Pro Tem, may administer oaths and compel the attendance of witnesses. All meetings of the BOA shall be open to the public. The BOA shall keep minutes of its meetings. The minutes shall be a public record. Hearings held pursuant to the powers and duties described in sections 3.3.1., 3.3.2., or 3.3.3. shall be witnessed and recorded by a court reporter, who shall provide a court-ready transcript of the proceeding to the BOA within a reasonable time after the hearing. The transcript, which shall be filed with the Virgin Town Clerk, shall be a public record.
3.2.4. The BOA shall notify each of its members of any meeting or hearing of the BOA, provide each of its members with the same information and access to municipal resources as any other member, convene only if a quorum is present, and act only upon the vote of a majority of its convened members. A quorum shall consist of four (4) members. [2]
3.3. DUTIES AND POWERS OF THE BOA.
The BOA shall hear and decide the following:
3.3.1. Appeals from decisions applying the Town’s land use ordinances.
3.3.2. Requests for variances from the terms of the Town’s land use ordinances.
3.3.3. Appeals from a fee charged in accordance with section 10-9a-510 of the Utah Code. [3]
3.4. APPEALS FROM DECISIONS APPLYING THE LAND USE ORDINANCES.
The applicant, a board or officer of the Town of Virgin, or any person adversely affected by a land use authority’s decision administering or interpreting the Town’s land use ordinance may appeal the decision to the BOA 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 the land use ordinance. The appeal shall be made within fifteen (15) days of the land use decision. [4]
3.4.1. Any person or entity appealing a land use decision to the BOA shall complete and file a written application for hearing with the Virgin Town Clerk and pay the related fee, which fee shall be established from time to time by a Town Council and published. [5] Any fee structure adopted by the Town Council shall be reasonably calculated to recoup the costs that the Town expends on appeals to the BOA, exclusive of attorney’s fees.
3.4.2. The application for hearing shall specify all grounds for the appeal and circumstances related thereto. An application failing to specify grounds for appeal may be summarily rejected by the Town Clerk or the BOA Chairman without prejudice.
3.4.3. All documents and exhibits constituting the record upon which the action appealed was made shall be presented to the Town Clerk with the application for hearing.
3.4.4. The BOA Chairperson in conjunction with the Town Clerk shall set the date for the appeal hearing, which shall be held within a reasonable time from the day the application is received. Written notice of the date set for hearing the appeal shall be mailed to the applicant at least ten (10) days before the appeal hearing date.
3.4.5. An appeal stays all proceedings in furtherance of the action appealed from, unless the Land Use Authority (as that term is defined in Title 10, Chapter 9a of the Utah Code) from whom the appeal is taken certifies to the BOA, after the notice of appeal shall have been filed with him or her, that by reason of facts stated in the certificate, a stay would in its opinion cause imminent peril to life or property. Proceedings shall not be stayed otherwise unless by restraining order, which may be granted by the District Court in and for Washington County, State of Utah, on application and notice and on due cause shown.
3.4.6. The BOA shall limit its review on appeal to the record upon which the original action was based, including, but not limited to, the original application, written recommendations from the Town Staff, minutes, letters, petitions, reports, or other technical data submitted to the Town, in furtherance of, or in response to the application, all proceedings before the Virgin Town Planning Commission (if applicable) and the Town Council.
3.4.7. The BOA shall allow the appealing party or designated representative and the decision maker or representative the opportunity to present appropriate oral argument with regard to the issue appealed. Such oral argument may be limited as appropriate by the BOA. The BOA shall not receive or consider any new evidence in the form of exhibits, affidavits or testimony, other than the oral argument provided under this section.
3.4.8. The person or entity who filed the appeal with the BOA has the burden of proving that the land use authority erred. [6]
3.4.9. After hearing the appeal, the BOA may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from, and may make such order, requirement, decision or determination as ought to be made, and to that end shall have all the powers of the officer or body from which the appeal is made. At least three members of the BOA must vote affirmatively to pass any motion presented. The BOA shall issue a written decision and findings. The written decision shall show the vote of each member upon each question or, if absent or failing to vote, indicate that fact. The written decision, the transcript, and all materials submitted to the BOA under subsection 3.4.6 shall be filed with the Town Clerk and shall be a public record. The written decision shall be final and effective upon filing with the Town Clerk.
3.4.10. The BOA shall not entertain an appeal of a matter in which it, or any of its convened members, had acted as the land use authority.
3.5. VARIANCES
Any person or entity desiring a waiver or modification of the requirements of a land use ordinanceas applied to a parcel of property that he owns, leases, or in which he holds some other beneficial interest may apply to the BOA for a variance from the terms of the ordinance.
3.5.1.A. A person or entity who requests a variance shallcomplete and file a written application for hearing with the Town Clerk and shall pay the related fee, which shall be established by the Town Council by resolution from time to time. Any fee structure adopted by the Town Council shall be reasonably calculated to recoup the costs that the Town expends on hearing the variance request, exlcusive of attorney’s fees. . If in the course of subdivision or building permit review, it is determined that a variance is required or desired, all actions in furtherance of the review shall be stayed until the applicant shall have obtained the variance.
3.5.1.B. The application for hearing shall provide evidence in support of the variance and circumstances related thereto, which evidence may include, but is not limited to,maps, photographs, professional reports, or other substantiating evidence. The application shall cite the ordinance from which the applicant requests relief. An application that fails to cite the ordinance from which the applicant requests relief may be summarily rejected by the Town Clerk or BOA Chairman without prejudice.
3.5.1.C. The BOA Chairperson in conjunction with the Town Clerk shall set the date for the variance hearing, which hearing shall be held within a reasonable time from the day the application is received. Written notice of the date ofthe hearing shall be mailed to the applicant at least ten (10) days before the hearing date.
3.5.2. The BOA may grant a variance only if:
3.5.2.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 ordinance; 3.5.2.B. There are special circumstances attached to the property that do not generally apply to other property in the same district;
3.5.2.C. Granting the variance is essential to the enjoyment of a substantial property in the same zone;
3.5.2.D. The variance will not substantially affect the General Plan and will not be contrary to the public interest; and
3.5.2.E. The spirit of the zoning ordinance is observed and substantial justice done.
3.5.3In determining whether or not enforcement of the zoning ordinance would cause unreasonable hardship under subsection 3.5.2.A., the BOA shall not find an unreasonable hardship unless the alleged hardship:
3.5.3.A. Is located on or associated with the property for which the variance is sought; and
3.5.3.B. Comes from circumstances peculiar to the property, not from conditions that are general to the neighborhood.
3.5.4. In determining whether enforcement of the zoning ordinance would cause unreasonable hardship under subsection 3.5.2.A, the BOA may not find an unreasonable hardship if the hardship is self-imposed or economic.
3.5.5. In determining whether or not there are special circumstances attached to the property under subsection 3.5.2.B., the BOA may find that special circumstances exist only if the special circumstances:
3.5.5.A. Relate to the hardship complained of; and
3.5.5.B. Deprive the property of privileges granted to other properties in the same zone.
3.5.6. The applicant shall bear the burden of proving that all of the conditions justifying a variance have been met.
3.5.7. Variances run with the land.
3.5.8. The BOA may not grant a use variance.
3.5.9. In granting a variance, the BOA may impose additional requirements on the applicant that will:
3.5.9.A. Mitigate any harmful effects of the variance; or
3.5.9.B. Serve the purpose of the standard or requirement that is waived or modified.
3-6 Vote-Necessary for Reversal.
The concurring vote of three (3) members of the BOA shall be necessary to reverse any order, requirement or determination of any land use authority, or to decide in favor of the appellant on any matter upon which it is required to pass under this Ordinance, or to grant a variance from the provisions of this Ordinance.
3-7 Judicial Review of Board’s Decision-Time Limitation.
The Town of Virgin or any person aggrieved by any decision of the BOAmay have and maintain a plenary action for relief therefrom in any court of competent jurisdiction; provided, a petition for such relief is presented to the court within thirty (30) days after the BOA files its decision with the Town Clerk. .
3-8 Time Limitation on Variance.
In the event the BOAdoes grant a variance in accordance with the provisions of this Chapter, alterations in accordance with the variance must be activated within six (6) months after the date such variance is granted or the variance may be extended an additional six (6) months by the BOA, only if the petitioner shows adequate cause to the board that circumstances necessitate a time extension.