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Legislative Version Ordinance - 7/29/2021  LEGISLATIVE DRAFT SALT LAKE CITY ORDINANCE 1 No. _____ of 2020 2 (An ordinance amending Chapter 21A.16 of the Salt Lake City Code 3 pertaining to Appeals of Administrative Decisions) 4 5 An ordinance amending Chapter 21A.16 of the Salt Lake City Code pertaining to Appeals of 6 Administrative Decisions, pursuant to petition number PLNPCM2020-00352 7 WHEREAS, the Salt Lake City Planning Commission held a public hearing on October 14, 2020 to 8 consider a request made by the Salt Lake City Council (Petition No. PLNPCM2020-00352) to amend 9 Chapter 21A.16 of the Salt Lake City Code; and 10 WHEREAS, at its October 14, 2020 hearing, the planning commission voted in favor of forwarding a 11 positive recommendation to the Salt Lake City Council; and 12 WHEREAS, after a public hearing on this matter, the city council has determined that adopting this 13 ordinance is in the city’s best interests, 14 WHEREAS, Utah Code § 10-9a-701 requires a municipality that adopts a land use ordinance 15 to establish an appeal authority to hear and decide requests for variances from the terms of the land 16 use ordinances and appeals from decisions applying the land use ordinances; 17 WHEREAS, Salt Lake City has adopted a land use ordinance and established such an 18 appeal authority; 19 WHEREAS, Utah Code § 10-9a-701 also provides that a municipality may provide that 20 specified types of land use decisions may be appealed directly to the district court; 21 WHEREAS, the Salt Lake City Council finds it necessary to clarify, as provided for in 22 Utah Code § 10 -9a-701, the authority of that appeal authority and to specify the types of land use 23 decisions that may be appealed directly to district court; 24   LEGISLATIVE DRAFT WHEREAS, the Salt Lake City Council finds it is also necessary to clarify the process for 25 filing appeals with the appeal authority; 26 WHEREAS, the Salt Lake City Council finds, after holding a public hearing on this matter, 27 that adopting this ordinance is in the City’s best interests. 28 NOW, THEREFORE, be it ordained by the City Council of Salt Lake City, Utah: 29 SECTION 1. Amending the Text of Salt Lake City Code Section 21A.16. That chapter 30 21A.16 Appeals of Administrative Decisions of the Salt Lake City Code shall be and hereby is 31 amended to read as follows: 32 Chapter 21A.16 33 APPEALS OF ADMINISTRATIVE DECISIONS 34 35 21A.16.010: Authority 36 21A.16.020: Parties Entitled To to Appeal 37 21A.16.030: Procedure 38 21A.16.040: Appeal Of of Decision 39 21A.16.050: Stay Of of Decision 40 41 21A.16.010: AUTHORITY: 42 43 A. Title 21A Appeals, Applications and Determinations: As described in section 21A.06.040 of 44 this title, the Aappeals Hhearing Oofficer shall hear and decide or make determinations 45 regarding: 46 47 1. Aappeals alleging an error in any administrative decision made by the zZoning 48 aAdministrator, or the Administrative Hearing Officer in the administration or 49 enforcement of this title, as well as administrative decisions of the Pplanning 50 Ccommission or the historic landmark commission involving the application, 51 administration, enforcement or compliance with Title 21A of this code;. 52 53 2. Appeals from decisions made by the planning commission concerning subdivisions or 54 subdivision amendments pursuant to the procedures and standards set forth in Title 20 of 55 this code; 56 57 3. Applications for variances as per chapter 21A.18 of this title; 58 59 4. The existence, expansion or modification of nonconforming uses and noncomplying 60 structures pursuant to the procedures and standards set forth in chapter 21A.38, 61 “Nonconforming Uses and Noncomplying Structures”, of this title; and 62   LEGISLATIVE DRAFT 63 5. Any other matter involving application, administration or enforcement of this code where 64 specifically authorized by a provision of this code. 65 66 B. State and Federal Law: The aAppeals hHearing oOfficer may shall not hear and decide or 67 make determinations regarding any of the following: 68 69 1. Aappeals alleging an error in the application, administrative decisions made by the 70 Historic Landmark Commission pursuant to section 21A.16.020 of this chapter. 71 administration, enforcement or compliance with a provision of state or federal law, 72 including but not limited to provisions of state and federal statutes, state and federal 73 constitutions and state and federal common law; 74 75 2. Appeals alleging a violation of state law or federal law, including but not limited to 76 provisions of state and federal statutes, state and federal constitutions and state and 77 federal common law; 78 79 3. Appeals requesting legal or equitable remedies available under state or federal law. 80 81 An appeal seeking the determinations identified in this subsection must be made directly to 82 the district court, as provided for in Utah code section 10-9a-701(4)(e) or its successor. 83 84 C. Requirement to Disclose: An appeal that alleges one or more claims that the hearing officer 85 has authority to hear and decide must include every theory of relief that can be presented in 86 district court, including theories the hearing officer does not have authority to hear and 87 decide. 88 89 D. Mixed Appeals: When an appeal alleges one or more claims that the hearing officer has 90 authority to hear and decide and one or more claims that the hearing officer does not have 91 authority to hear and decide, the appeals hearing officer shall hear and decide only the claims 92 the hearing officer has the authority to hear and decide. The claims the hearing officer does 93 not have authority to hear and decide may be brought in district court on conclusion and 94 exhaustion of all remedies available for the claims the hearing officer has authority to hear 95 and decide. 96 In addition, the Appeals Hearing Officer shall hear and decide applications for variances as per 97 chapter 21A.18 of this title and shall make determinations regarding the existence, expansion or 98 modification of nonconforming uses and noncomplying structures pursuant to the procedures and 99 standards set forth in chapter 21A.38, "Nonconforming Uses And Noncomplying Structures", of 100 this title. 101 As described in section 21A.06.080 of this title, the Historic Preservation Appeal Authority may 102 hear and decide appeals alleging an error in administrative decisions of the Historic Landmark 103 Commission pursuant to section 21A.16.020 of this chapter. 104 105 21A.16.020: PARTIES ENTITLED TO APPEAL: 106 107   LEGISLATIVE DRAFT An applicant, a board or officer of the municipality, or any other person or entityan adversely 108 affected party, as that term is defined by Utah code section 10-9a-103 or its successor, by a 109 decision administering or interpreting this title may appeal to the aAppeals hHearing oOfficer. 110 For decisions made by the Historic Landmark Commission, the applicant may appeal to either 111 the Historic Preservation Appeal Authority or the Appeals Hearing Officer. 112 113 21A.16.030: PROCEDURE: 114 115 Appeals of administrative decisions by the zZoning aAdministrator, hHistoric lLandmark 116 cCommission or pPlanning cCommission shall be taken in accordance with the following 117 procedures: 118 119 A. Form: The appeal shall be filed using an application form provided by the zoning 120 administrator. To be considered complete, the application must include all information 121 required on the application, including but not limited to identification of the decision 122 appealed, the alleged error made in connection with the decision being appealed, and the 123 reasons the appellant claims the decision to be in error. Incomplete applications will not be 124 accepted. 125 126 B. Filing: The application must be submitted as indicated on the form by the applicable 127 deadline, together with all applicable fees. 128 129 AC. Time for Filing Of an Appeal: The deadlines for filing a complete application for appeal 130 are:All appeals shall specify the decision appealed, the alleged error made in connection with 131 the decision being appealed, and the reasons the appellant claims the decision to be in error, 132 including every theory of relief that can be presented in District Court. The deadlines for 133 filing an appeal are as indicated below: 134 135 1. Administrative decisions made by the zZoning aAdministrator: tTen (10) days;. 136 137 2. Planning cCommission decisions: tTen (10) days;. 138 139 3. Historic lLandmark cCommission: tThirty (30) days for appeals filed by the applicant, 140 ten (10) days for appeals filed by any other party entitled to appeal. 141 142 BD. Fees: The application shall be accompanied by the applicable following fees: 143 144 1. The applicable fees shown on the Salt Lake City consolidated fee schedule; and 145 146 2. . The applicant shall also be responsible for payment of allThe fees established for 147 providing the public notice required by chapter chapter 21A.10 of this title. 148 149 All fees are due at the time of filing the appeal. An appeal will not be considered complete 150 until all applicable fees are paid. 151 152   LEGISLATIVE DRAFT CE. No Automatic Stay: Filing an appeal with a hearing officer does not stay the decision 153 appealed, unless a provision of this code specifically states otherwise. Stay Of Proceedings: 154 An appeal to the Appeals Hearing Officer or Historic Preservation Appeal Authority shall 155 stay all further proceedings concerning the matter about which the appealed order, 156 requirement, decision, determination, or interpretation was made unless the Zoning 157 Administrator certifies in writing to the Appeals Hearing Officer or Historic Preservation 158 Appeal Authority, after the appeal has been filed, that a stay would, in the Zoning 159 Administrator's opinion, be against the best interest of the City. 160 161 F. Requesting a Stay: The hearing officer may grant a request filed by the Appellant, 162 Respondent, or any other party to the appeal, to stay a decision of the zoning administrator, 163 planning commission or historic landmark commission for a specified period of time or until 164 the appeals hearing officer issues a decision, if the requesting party can show a stay is 165 necessary to prevent substantial harm to the requesting party. No request is required, if a 166 provision of this code imposes an automatic stay on the filing of an appeal with a hearing 167 officer. 168 169 DG. Notice Required: 170 171 1. Public Hearing: Upon receipt of an appeal of an administrative decision by the zZoning 172 aAdministrator, the aAppeals hHearing oOfficer shall schedule and hold a public hearing 173 in accordance with the standards and procedures for conduct of the public hearing set 174 forth in chapter 21A.10 of this title. 175 176 2. Public Meeting: Appeals from a decision of the hHistoric lLandmark cCommission or 177 pPlanning cCommission are based on evidence in the record. Therefore, testimony at the 178 appeal meeting shall be limited to the appellant and the respondent. 179 180 a. Upon receipt of an appeal of a decision by the hHistoric lLandmark cCommission or 181 pPlanning cCommission, the aAppeals hHearing oOfficer or Historic Preservation 182 Appeal Authority shall schedule a public meeting to hear arguments by the appellant 183 and respondent. Notification of the date, time and place of the meeting shall be given 184 to the appellant and respondent a minimum of twelve (12) calendar days in advance 185 of the meeting. 186 187 b. The cCity shall give e-mail notification, or other form of notification chosen by the 188 aAppeals hHearing oOfficer or Historic Preservation Appeal Authority, a minimum 189 of twelve (12) calendar days in advance of the hearing to any organization entitled to 190 receive notice pursuant to title Title 2, chapter chapter 2.60 of this cCode. 191 192 3H. Time Limitation: All appeals shall be heard within one hundred eighty (180) days of the 193 filing of the appeal. Appeals not heard within this time frame will be considered void and 194 withdrawn by the appellant. 195 196 EI. Standard oOf Review: 197 198   LEGISLATIVE DRAFT 1. The standard of review for an appeal, other than as provided in subsection E2 I2 of this 199 section, shall be de novo. The aAppeals hHearing oOfficer or Historic Preservation Appeal 200 Authority shall review the matter appealed anew, based upon applicable procedures and 201 standards for approval, and shall give no deference to the decision below. 202 203 2. An appeal from a decision of the hHistoric lLandmark cCommission or pPlanning 204 cCommission shall be based on the record made below. 205 206 a. No new evidence shall be heard by the aAppeals hHearing oOfficer or Historic 207 Preservation Appeal Authority unless such evidence was improperly excluded from 208 consideration below. 209 210 b. The aAppeals hHearing oOfficer or Historic Preservation Appeal Authority shall 211 review the decision based upon applicable standards and shall determine its 212 correctness. 213 214 c. The aAppeals hHearing oOfficer or Historic Preservation Appeal Authority shall 215 uphold the decision unless it is not supported by substantial evidence in the record or 216 it violates a law, statute, or ordinance in effect when the decision was made. 217 218 FJ. Burden Oof Proof: The appellant has the burden of proving the decision appealed is 219 incorrect. 220 221 GK. Action bBy tThe Appeals Hearing Officer Or Historic Preservation Appeal Authority: 222 The aAppeals hHearing oOfficer or Historic Preservation Appeal Authority shall render a 223 written decision on the appeal. Such decision may reverse or affirm, wholly or in part, or 224 may modify the administrative decision. A decision shall become effective on the date the 225 decision is rendered. 226 227 HL. Notification oOf Decision: Notification of the decision of the aAppeals hHearing 228 oOfficer or Historic Preservation Appeal Authority shall be sent to all parties to the appeal 229 within ten (10) days of the decision. 230 231 IM. Record oOf Proceedings: The proceedings of each appeal hearing shall be recorded. on 232 audio equipment. The audio Rrecordings of each appeal hearing shall be retainedkept by the 233 planning division for a period that is consistent with city retention policies and any applicable 234 retention requirement set forth in state law. minimum of sixty (60) days. Upon the written 235 request of any interested person, such audio recording shall be kept for a reasonable period of 236 time beyond the sixty (60) day period, as determined by the Appeals Hearing Officer or 237 Historic Preservation Appeal Authority. Copies of the tapes of such hearings may be 238 provided, if requested, at the expense of the requesting party. The Appeals Hearing Officer 239 and Historic Preservation Appeal Authority may have the appeal proceedings 240 contemporaneously transcribed by a court reporter. 241 242   LEGISLATIVE DRAFT JN. Policies aAnd Procedures: The Pplanning Ddirector shall adopt policies and procedures, 243 consistent with the provisions of this section, for processing appeals, the conduct of an appeal 244 hearing, and for any other purpose considered necessary to properly consider an appeal. 245 246 KO. Matters Delayed: For all matters delayed by the Aappeals Hhearing Oofficer and 247 Historic Preservation Appeal Authority, any subsequent written materials shall be submitted 248 a minimum of fourteen (14) days prior to the rescheduled meeting date. 249 250 21A.16.040: APPEAL OF DECISION: 251 252 Any person adversely affected by a final decision made by the Aappeals Hhearing Oofficer or 253 Historic Preservation Appeal Authority may file a petition for review of the decision with the 254 Ddistrict Ccourt within thirty (30) days after the decision is rendered. 255 256 21A.16.050: STAY OF DECISION: 257 258 The filing of a petition in district court does not stay the final decision of the appeals hearing 259 officer. A final decision of an appeals hearing officer may be stayed as provided for under Utah 260 code section 10-9a-801(9)(b) or its successor. 261 The Appeals Hearing Officer and Historic Preservation Appeal Authority may stay the issuance 262 of any permits or approvals based on its decision for thirty (30) days or until the decision of the 263 District Court in any appeal of the decision. 264 265 SECTION 2. Amending the Text of Salt Lake City Code Section 21A.18.120. That section 266 21A.18.120 Stay of Decision of the Salt Lake City Code shall be and hereby is amended to read as 267 follows: 268 21A.18.120: STAY OF DECISION: 269 270 A final decision of an appeals hearing officer may be stayed as provided for in section 21A.16.050 271 or its successor. The appeals hearing officer may stay the issuance of any permits or approval 272 based on its decision for thirty (30) days or until the decision of the district court in any appeal of 273 the decision. 274 275 276 277 SECTION 3. Amending the Text of Salt Lake City Code Section 21A.34.020L.3(e). That 278 section 21A.34.020L.3(e) Appeal of Decision, of the Salt Lake City Code shall be and hereby is 279 amended to read as follows: 280 Appeal: Any owner adversely affected by a final decision of the Historic Landmark Commission 281 may appeal the decision in accordance with the provisions of chapter 21A.16 of this title. The 282   LEGISLATIVE DRAFT filing of an appeal shall stay the decision of the Historic Landmark Commission pending the 283 outcome of the appeal. 284 285 SECTION 4. Amending the Text of Salt Lake City Code Section 21A.52.120 Appeal of 286 Decision. That section 21A.52.120 Appeal of Decision, of the Salt Lake City Code shall be and 287 hereby is amended to read as follows: 288 21A.52.120: APPEAL OF DECISION: 289 A. Any party aggrieved by a decision of the planning director may appeal the decision to the 290 planning commission pursuant to the provisions in chapter 21A.16 of this title. 291 B. Any party aggrieved by a decision of the planning commission on an application for a 292 special exception may file an appeal to the appeals hearing officer within ten (10) days of the 293 date of the decision. The filing of the appeal shall not stay the decision of the planning 294 commission pending the outcome of the appeal, except as provided for under section 295 21A.160.30F. unless the planning commission takes specific action to stay a decision. 296 297 298 SECTION 5. Amending the Text of Salt Lake City Code Section 21A.54.160 Appeal of 299 Planning Commission Decision. That section 21A.54.160 Appeal of Planning Commission 300 Decision, of the Salt Lake City Code shall be and hereby is amended to read as follows: 301 21A.54.160: APPEAL OF PLANNING COMMISSION DECISION: 302 Any person adversely affected by a final decision of the planning commission on an application for a 303 conditional use may appeal to the appeals hearing officer in accordance with the provisions of chapter 304 21A.16 of this title. Notwithstanding section 21A.16.030 of this title, tThe filing of the appeal shall not 305 stay the decision of the planning commission pending the outcome of the appeal, except as provided for 306 under section 21A16.030F of this title. unless the planning commission takes specific action to stay a 307 decision. 308 309 SECTION 6. Amending the Text of Salt Lake City Code Section 21A.55.070 Appeal of 310 the Planning Commission Decision. That section 21A.55.070 Appeal of the Planning Commission 311 Decision, of the Salt Lake City Code shall be and hereby is amended to read as follows: 312 21A.55.070: APPEAL OF THE PLANNING COMMISSION DECISION: 313   LEGISLATIVE DRAFT Any person adversely affected by a final decision of the Planning Commission on an application 314 for a planned development may appeal to the Appeals Hearing Officer in accordance with the 315 provisions of chapter 21A.16 of this title. Notwithstanding section 21A.16.030 of this title, tThe 316 filing of the appeal shall not stay the decision of the Planning Commission pending the outcome 317 of the appeal, except as provided for under section 21A.16.030F of this title. unless the Planning 318 Commission takes specific action to stay a decision. 319 SECTION 7. Effective Date. This ordinance shall become effective on the date of its 320 passage. 321 Passed by the City Council of Salt Lake City, Utah, this ____ day of _________, 2020. 322 323 324 ______________________________ 325 CHAIRPERSON 326 327 ATTEST AND COUNTERSIGN: 328 329 330 ______________________________ 331 CITY RECORDER 332 333 334 Transmitted to Mayor on _______________________. 335 Mayor’s Action: _______Approved. _______Vetoed. 336 337 ______________________________ 338 MAYOR 339 340 ______________________________ 341 CITY RECORDER 342 343 344 (SEAL) 345 346 347 Bill No. ________ of 2020. 348 Published: ______________. 349 350 351 Approved As To Form Salt Lake City Attorney’s Office By: _________________________ Katherine Lewis, City Attorney Date: ______________________