Article Title: Utah Zoning Law: Appeals
| Publication year | 2001 |
| Pages | 08-12 |
| Citation | Vol. 2001 No. 08 Pg. 08-12 |
08-12 (2001). Article Title: Utah Zoning Law: Appeals
August, 2001
Article Title: Utah Zoning Law: Appeals
Author: Richard S. Dalebout
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Article
This article is the third in a series of three on Utah
zoning law. The first article is entitled Utah Zoning Law
The Zoning Ordinance, and appeared in the April 2001 issue
The second is entitled Utah Zoning Law: Enforcement, and
appeared in the June/July 2001 issue.
I. Appeals(fn1)
This article deals with the "appeals" that may be
pursued in Utah when the rights of parties may have been
violated in the process of regulating land uses. In Utah
zoning law, there are three proceedings that may be loosely
referred to as an "appeal":
Administrative Appeals. First, there is an
administrative appeal; that is, an appeal within the zoning
system - not an appeal to the courts. For example, a zoning
administrator misinterprets the zoning ordinance and refuses
to issue a building permit. The remedy of the applicant is to
appeal to the zoning board of adjustment which has power to
overrule the mistake and order that the building permit be
issued.
Judicial Review of an Administrative
Decision. Second, there is judicial review of an
administrative decision. In the example above, if the board
of adjustment errs and refuses to order the permit issued,
that decision may be appealed to the district court which has
power to review the matter and alter the administrative
decision. (The decision of the district court may, of course,
be appealed to the Court of Appeals and the Supreme Court as
other judicial decisions are appealed.)
Judicial Challenges to Legislative
Decisions. Third, there is direct resort to the
courts in opposition to legislative decisions. For example,
the governing body exercises its legislative (not
administrative) authority to rezone property from commercial
to residential. The property owner objects and files suit in
the courts. (The property owner is not required to appeal to
the board of adjustment because this is not an administrative
act.)
II. Administrative Appeals
A Board of Adjustment. A board of adjustment
is required as a condition to the exercise of zoning powers.
(Like a planning commission, a board of adjustment is
composed of local residents who normally serve without
compensation.) According to the enabling acts, the objective
of a board of adjustment is to provide an element of
flexibility in zoning administration so that there will be
"just and fair treatment . . . and to ensure that
substantial justice is done." In an early case, the Utah
Supreme Court said that the function of a board of adjustment
is to make "adjustments under the zoning ordinances in
order that they will not be [as inflexible] as the law of the
Medes and the Persians."(fn2) Nevertheless, in a
different case, the court cautioned that a board of
adjustment is an administrative body and its actions
are limited by the terms of the zoning ordinance enacted by
the legislative body.(fn3)
Open Meetings. The enabling acts provide
that the meetings of a board of adjustment are subject to the
Open and Public Meetings law.(fn4) Arguably, however, the
decision-making phase of the business of a board of
adjustment is not required to be in an open meeting. In
relation to public boards like the Utah Public Service
Commission and the Utah Board of Pardons the Utah Supreme
Court has observed that some of the business of such boards
is "information gathering" in nature and some is
"judicial" in nature. Proceedings which are
judicial in nature are exempt from the provisions of the Open
and Public Meetings statute. In Andrews v. Utah Board of
Pardons,(fn5) when confronted with a claim that a
meeting of the Utah Board of Pardons should have been open to
the public, the Utah Supreme Court stated: "[T]he Board
proceedings to date consisted not of information gathering,
but of deliberations . . . If this is the case, these
proceedings would be of a judicial nature and exempt
from the provisions of the [Open and Public Meetings]
statute."(fn6)
Historically, some boards of adjustment have held a
"pre-meeting" in which the board's staff and
attorney reviewed agenda and issues with board members,
ostensibly so that upcoming meetings would run more smoothly.
In reality these meetings often slipped into a discussion of
the merits of upcoming issues and for that reason they have
been condemned by the Utah Court of Appeals.(fn7)
Board of Adjustment Jurisdiction. A board of
adjustment is commonly asked to: (1) review claims of
administrative error; (2) grant variances; (3) review the
approval of conditional use permits; or, (4) determine the
existence of nonconforming uses. Following is a brief
discussion of each of these:
Administrative Errors. With respect to
claims that an administrative error has been made, the zoning
enabling acts specifically provide that a board of adjustment...
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