Chapter 11.09 - Appeals


City Code :: Elwood Town Subdivision Ordinance :: Chapter 11.09 - Appeals

Chapter 11.09

Appeals 
 

11.09.010 Purpose 
 

As required by the Act, this Chapter is provided to allow the Applicant(s), a Board, or Officer of the Town, or any other person who believes they are adversely affected by a decision of a Land Use Authority to appeal such decision to an Appeal Authority, as identified by this Chapter.  
 

11.09.020 Appeal Authorities 
 

As required by the Act, and to provide for appeals of decisions of a Land Use Authority administering or interpreting this Ordinance, the following Appeal Authorities, with their respective appeal responsibilities, are hereby identified as follows: 
 

  1. Any person aggrieved by a decision of the Council in enacting or administering this Ordinance may file a Petition with District Court, as provided by this Chapter.
 
  1. Any person aggrieved by a decision of the Town Staff in administering or interpreting this Ordinance may file an Appeal Application with the Council, except any person aggrieved by a decision of the Town Staff related to a Determination of Application Completeness may appeal the decision to the Commission.
 

11.09.030 Maximum Time Allowed to File Appeal: 
 

  1. Any person, including the Applicant(s) for any approval required by this Ordinance, and any board or officer of the Town, aggrieved by a decision of a Land Use Authority's decision administering or interpreting this Ordinance may, within ten calendar (10) days of the decision, appeal such decision to the Appeal Authority identified by Section 11.09.020 herein, except as may be further provided for by Subsection (B) and (C) below.
 
  1. Any person, including the Applicant(s) for any approval required by this Ordinance, and any board or officer of the Town, aggrieved by a decision of the Council, acting as a Land Use Authority, may file a petition for the review of the Council’s decision with the District Court within thirty (30) calendar days after the decision is final, as provided by Section 11.09.110 herein.
 
  1. Any person, including the Applicant(s) for any approval required by this Ordinance, and any board or officer of the Town, aggrieved by a decision of an Appeal Authority may file a petition for review of the decision with the District Court within thirty calendar (30) days after the decision is final, as provided by Section 11.09.110 herein.
 

11.09.040 Requirements for an Appeal Petition: 
 

  1. An Appeal Petition of a Land Use Authority’s decision made under the authority of this Chapter shall clearly identify the alleged error in any order, requirement, decision, or determination made by the Land Use Authority in the administration or interpretation of this Ordinance.
 
  1. Only those decisions in which a Land Use Authority has applied the requirements of this Ordinance to a particular Application, person, lot, or parcel may be appealed to an Appeal Authority.
 

11.09.050 Condition Precedent to Judicial Review, Appeal Authority Duties: 
 

  1. As required by the Act, and as a condition precedent to judicial review, each adversely affected person shall timely and specifically challenge a Land Use Authority's decision, in accordance with the requirements of this Chapter.
 
  1. An Appeal Authority shall:
 
    1. Act in a quasi-judicial manner; and
    2. Serve as the final arbiter of issues involving the interpretation or application of this Ordinance; and
    3. May not entertain an Appeal of a matter in which the Appeal Authority, or any participating member thereof, had first acted as the Land Use Authority.
 
  1. As provided by the Act, an adversely affected party shall present every theory of relief to the Appeal Authority that it can raise in District Court.
 
  1. As required by the Act, an Appeal Authority shall not require an adversely affected party to pursue duplicate or successive Appeals before it, or another Appeal Authority, as a condition of the adversely affected party's duty to exhaust administrative remedies.
 

11.09.060 Application Required 
 

An Appeal Petition, or Application for an Appeal, of a Land Use Authority’s decision shall be made on the Appeal Application Form, available in the Office of the Town. 
 

11.09.070 Meetings, Records, and Action of an Appeal Authority 
 

  1. Each Appeal Authority as identified by Section 11.09.020 herein shall:
 
    1. Notify each of its members of any meeting or hearing;
    2. Provide to each of its members the same information and access to Town resources as any other member;
    3. Convene only if a quorum of its members is present; and
    4. Act only upon the vote of a majority of its convened members.
 
  1. The Town Recorder, in consultation with the Town Attorney, shall coordinate with the Appeal Authority to schedule the hearing of the Appeal. The Town Staff and Recorder shall coordinate and transmit to the Appeal Authority all information and materials constituting the full and complete record of the matter and the decision of the Land Use Authority.
 
  1. Following a written decision by the Appeal Authority, as required by Section 11.09.110 herein, the Town Recorder shall provide the Applicant a copy of the written decision.
 
  1. A record of the final decision of the Appeal Authority shall be maintained in the Office of the Town Recorder, which shall constitute the official record of the Appeal Authority.
 

11.09.080 Due Process 
 

  1. Each Appeal Authority shall conduct each appeal as provided herein, and specifically Section 11.09.070 and Section 11.09.100.
 
  1. Each Appeal Authority shall respect the due process rights of each of the participants.
 

11.09.090 Burden of Proof 
 

Any person bringing an Appeal and alleging an error of a Land Use Authority’s decision administering or interpreting this Ordinance has the burden of proof that the Land Use Authority erred. 
 

11.09.100 Standard of Review for Appeals 
 

  1. Each Appeal Authority identified by this Chapter shall hear and review all Appeal Application matters “on the record,” including the review of all factual matters. Each Appeal Authority shall only consider that information and material presented and originally before the Land Use Authority in making the decision that is the subject of the Appeal.
 
  1. The Appeal Authority shall determine the correctness of a decision of the Land Use Authority in its interpretation and application of the Land Use Ordinances.
 
  1. Only those decisions in which a Land Use Authority has applied the requirements of this Ordinance to a particular Application, person, lot, or parcel may be appealed to an Appeal Authority.
 
  1. An Appeal Petition shall not be used to waive, modify, or amend any requirement, provision, or term of this Ordinance.
 

11.09.110 Final Decision: 
 

A decision of an Appeal Authority shall take effect on the date when the Appeal Authority, as applicable, issues a written decision, which shall constitute a final decision by the Town in the matter. 
 

11.09.120 District Court Review: 
 

  1. Required Time for Filing.
 
    1. No person may challenge in District Court a decision of a Land Use Authority until that person has exhausted all administrative remedies as provided by this Chapter and received a final decision from the Appeal Authority, as provided by Section 11.09.110 herein.
    2. Any person adversely affected by a final decision made in the exercise of, or in violation of, the provisions of this Ordinance may file a petition for review of the decision with the District Court within thirty (30) calendar days after the decision is final.
    3. A petition is barred unless it is filed within thirty (30) calendar days after the Appeal Authority's decision is final.
 
  1. Tolling of Time.
 
    1. The required time for filing for District Court review shall be tolled from the date the a person files a request for arbitration of a constitutional taking issue with the property rights ombudsman, as provided by §63-34-13, Utah Code Annotated, 1953, as amended, until thirty (30) calendar days after:
 
      1. The arbitrator issues a final award; or
      2. The property rights ombudsman issues a written statement under §63-34-13(4)(b), Utah Code Annotated, 1953, as amended, declining to arbitrate or to appoint an arbitrator.
 
    1. A tolling under this Section operates only as to the specific constitutional taking issue that is the subject of the request for arbitration filed with the property rights ombudsman by a property owner.
    2. A request for arbitration filed with the property rights ombudsman after the time allowed under Subsection (B)(1) to file a petition has expired does not affect the time to file a petition.
 
  1. Standards Governing Court Review.
 
    1. The District Court shall:
 
      1. Presume that a decision, ordinance, or regulation made under the authority of the Land Use Ordinance, and the Act, is valid; and
      2. Determine only whether or not the decision, ordinance, or regulation is arbitrary, capricious, or illegal.
 
    1. A decision, ordinance, or regulation of the Council involving the exercise of legislative discretion is valid if the decision, ordinance, or regulation is reasonably debatable and not illegal.
    2. A decision of a Land Use Authority, or an Appeal Authority, involving the exercise of administrative discretion is valid if the decision is supported by substantial evidence in the record and is not arbitrary, capricious, or illegal.
    3. A determination of illegality requires a determination that the decision, ordinance, or regulation violates a law, statute, or ordinance in effect at the time the decision was made or the ordinance or regulation adopted.
    4. The time requirements for the filing of a petition with District Court, as provided by this Chapter, apply from the date on which the Land Use Authority takes action on an Application for any adversely affected third party, if the Land Use Authority conformed with the notice provisions of this Ordinance, as applicable, or for any person who had actual notice of the pending decision.
    5. If the Town has complied with the notice requirements, as provided by Chapter 11.08 herein, a challenge to the enactment of this Ordinance may not be filed with the District Court more than thirty (30) calendar days after the enactment.
 
  1. Appeal Authority – Review on the Record.
 
    1. The Council, acting as a Land Use Authority, or Appeal Authority, as the case may be, shall transmit to District Court the record of its proceedings, including its minutes, findings, orders, and, if available, a true and correct transcript of its proceedings.
 
    1. If the proceeding was tape-recorded, a transcript of that tape recording is a true and correct transcript for purposes of this Section.
    2. If there is a record, the District Court's review is limited to the record provided by the Land Use Authority, or Appeal Authority, as the case may be.
    3. The court may not accept or consider any evidence outside the record of the Land Use Authority, or Appeal Authority, as the case may be, unless that evidence was offered to the Land Use Authority, or Appeal Authority, respectively, and the court determines that it was improperly excluded.
    4. If there is no record, the Court may call witnesses and take evidence.
    5. The filing of a petition does not stay the decision of the Land Use Authority, or Appeal Authority, as the case may be.
 
  1. Staying of Decision.
 
    1. Before filing a petition under this Chapter, or a request for mediation or arbitration of a constitutional taking issue under §63-34-13, Utah Code Annotated, 1953, as amended, the aggrieved party may petition the Appeal Authority to stay its decision.
    2. 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 Town.
    3. After a petition is filed under this Chapter, or a request for mediation or arbitration of a constitutional taking issue is filed under §63-34-13, Utah Code Annotated, 1953, as amended, the petitioner may seek an injunction staying the Appeal Authority's decision.