Personnel receive variance training

By Sun Advocate

Zoning personnel met Tuesday at the county court complex to receive training involving the appeals process for land use issues that are addressed by the Board of Adjustment (BOA).
According to County Commissioner Mike Milovich, the county has recently instituted a regular training schedule for county personnel aimed at keeping them up-to-date with the law and in tune with the services they are able to offer Carbon residents.
The county BOA can provide different kinds of variances. A good example of one would be to allow a variance such as a setback adjustment to a landowner who requires a small amount of leeway in a particular building situation.
Under the program once the landowner has been denied a particular variance they then have to opportunity to appeal and request a hearing through the BOA.
The training was open to city and county officials allowing all local planning and zoning personnel to become more familiar with their responsibilities.
The training conducted by Carbon County assistant attorney Christian Bryner detailed the rights individuals have when appealing a boards decision or requesting a hearing from the planning and zoning body.
According to Bryner, the Board of Adjustment should schedule any request given for an appeal as soon as possible.
“Our local ordinance does not give a deadline for the time in which the appeal must be heard,” said Bryner, citing Utah Law. “One of the statutes governing land use appeals states that each appeal authority shall respect the due process and rights of each of the participants. Courts will be especially concerned to see that the appellant’s concern was promptly addressed.”
Bryner recommended that the board schedule appeals within 30 days time whenever possible. He also requested that personnel use his knowledge of the law when deciding if an individual has standing for appeal.
“If you are unsure that someone has standing to appeal to the BOA, please schedule the hearing anyway and refer your concern to me,” explained the county attorney. “We can cancel the hearing if someone is not entitled to a hearing.”
According to Utah Law, any person adversely affected by the land use authority’s decision may appeal the BOA. However, the local ordinance states that someone who is adversely affected in interpreting the zoning ordinance may appeal the decision if there is an error in any order, requirement, decision or determination made by the zoning administrator or interpreting of this title.
“In most cases, this will mean after a person has been denied approval by the planning commission or the county commissioners,” explained Bryner. “Conceivably, however, this could also mean that a person could appeal a planning board requirement to provide information even before a recommendation is made one way or the other by the planning commission.”
BOA hearings are to be conducted in a “quasi-judicial” manner continued Bryner, meaning the appellate has the right to present evidence and bring in witnesses to solidify the standing of the appeal. He also recommended that prior to the hearing, the BOA send out a letter informing the appellant that he should provide the board with all necessary documents that are to be presented.
“To begin the hearing it may be wise to ask the planning and zoning staff to give a short summation of the history of the matter at the outset of the hearing. They can inform the board much more quickly and efficiently what the issue is and why the variance was denied or how the land use decision affects the appellant,” said Bryner.
The appellant is afforded the opportunity to present their case as he has the burden of proving that the land authority errored.
After the appellant presents his facts, planning and zoning may present evidence in the opposition and may question the appellant’s witnesses. They may then submit a written response giving the appellant the opportunity to also respond.
The standard of the law reads that the purpose for the BOA is to, “provide for just and fair treatment in the administration of local zoning ordinances and to ensure that substantial justice is done.”
The statute sets five grounds that must be met by the appellant when seeking a variance:
•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.
•There are special circumstances attached to the property that do not apply to other properties in the same zone.
•Granting the variance is essential to the enjoyment of a substantial property right possessed by other properties in the same zone.
•The variance will not substantially affect the general plan and will not be contrary to the public interest.
•The spirit of the land use ordinance is observed and substantial justice is done.