Land Use Appeals and Appeal Authorities
NOTE: This summary is very simplified, and is provided for informational purposes. Any questions on this topic should be directed to The Office of the Property Rights Ombudsman.
A land use decision may generally be appealed. In most cases, neighboring property owners and other affected persons also have the right to appeal, even if the decision is favorable to the applicant.
The Utah Code requires that each local government that regulates land use must appoint an “appeal authority” to hear appeals from decisions applying those land use regulations to a particular application or property. Traditionally, the appeal authority has been a board of adjustment, and several cities and counties still have such boards. However, an appeal authority may also be a hearing officer appointed to review decisions.
Appeal authorities are authorized to consider appeals of administrative land use decisions, and may grant variances to land use regulations. Appeal authorities may not amend land ordinances, ignore ordinances, or use “appeals” as a means of waiving required regulations.
Variances are discussed in a separate section.
There is an important distinction between “legislative” decisions and “administrative” decisions.
Legislative decisions establish generally applicable policies for the government entity, including adoption or amendment of land use ordinances and designating zoning classifications for neighborhoods. Legislative decisions are made by a legislative body, and no other person or entity may make such decisions.
Administrative decisions, on the other hand, are determinations applicable to specific cases, and apply the general laws or policies established by legislative acts. Administrative decisions are usually not made by a legislative body, but by staff members or other boards authorized to make such decisions.
In most land use decisions, the deadline for filing appeals is determined by statute or ordinance. The time to file an appeal may be as short as 10 days from the date of the decision. If the deadline is missed, the right to appeal is usually lost, even if the land use decision is incorrect.
If you are considering an appeal, it is vitally important that you begin the process before the deadline has passed. The safest course is to consult an attorney or contact the Office of the Property Rights Ombudsman as soon as possible once the decision has issued.
The procedure for appeals is usually dictated by ordinance or statute. It is important to remember that appellate procedure must be followed precisely. Failure to follow the required process may be grounds to dismiss the appeal. Each local government should adopt appeal procedures, which may vary, although the following procedures generally apply.
Legislative Decisions and Ordinance Changes:
Appeals of decisions by a legislative body, such as zoning changes and ordinance amendments, may be appealed to the district court. Any person affected by a legislative act may appeal, which must be filed within thirty (30) days of the decision.
It should be remembered, however, that courts are highly deferential to the decisions made by legislative bodies—such as city councils and county commissions—and it is very difficult to overturn legislative actions. A legislative decision will be upheld if it is shown that it is reasonably debatable that the action may promote the public welfare.
Decisions on Development Applications or Subdivision Applications:
Decisions on specific applications are considered “administrative” rather than legislative and the appeal usually must be taken to the local appeal authority, although local ordinances may require hearings before other bodies. The time to appeal such decisions is usually very short, sometimes as little as 10 days. After the appeal authority makes a final ruling, the decision may be appealed to the district court. An appeal to the court must be filed within 30 days.
Interpretations or Application of Local Ordinances:
If a local government’s interpretation of its ordinances is disputed, there should be a process to appeal and review the interpretation. Often, this process begins with a “formal” interpretation from a local government official. That interpretation may usually be appealed to the entity’s appeal authority, and the appeal authority’s decision could ultimately be appealed to the district court.
Local ordinances may establish a review process for conditional use applications, which may go from a planning commission, to a legislative body, and then to an appeal authority. Any affected person may appeal a decision on a conditional use permit. After all administrative bodies have considered the appeal, the decision may be appealed to the district court. Consult your local ordinances, or contact the Office of the Property Rights Ombudsman when considering an appeal of a conditional use permit application.
State law requires that local governments have a process by which property owners may appeal actions raising constitutional takings issues. An appeal using this process is not required, however, and a claim may be filed directly in district court.
Appeal Authority Decisions:
Final decisions of an appeal authority, including variances or rulings on nonconforming uses, may be appealed to the district court. Any affected person may appeal, which must be filed within thirty (30) days of the decision. State law authorizes appeal authorities to review most administrative land use decisions, and local governments must respect the decisions made by appeal authorities, although a local entity may appeal a decision to district court. Local legislative bodies may not overrule appeal authorities.
The Impact Fees Act provides that a local government may establish an administrative procedure to consider appeals of impact fees. This administrative process may be a hearing officer or a board. If such an administrative process is established, any challenges to impact fees must follow that process before a suit may be brought in district court. If no administrative process is established, a lawsuit challenging the fee may be filed in district court.
Building and Health Codes:
Local governments often have boards to consider appeals of building and health code interpretations. If such a board is in place, an appeal may need to start there.
Before an appeal may be filed in a district court, all required administrative hearings and appeals must be completed, or “exhausted.” If an appeal authority is authorized to review a land use decision, then the appeal must be taken to the appeal authority before it can be brought to district court, regardless of the magnitude or importance of the issues involved.
The “record of the proceedings” refers to all evidence presented to the land use authority and the appeal authority reviewing the decision. The record includes all documents submitted, as well as the transcripts of any public hearings on the matter. Hearings should be recorded by the local government, so they can be transcribed if necessary.
The Utah Code mandates that a district court may only review the record created by the administrative appeal process, and may not accept new evidence (except in very limited cases). The court, in other words, will not consider the appeal as a new trial, but will only review the evidence that was presented to the administrative bodies. If an issue is not raised or decided upon in the administrative process, it may not be considered by a district court, regardless of the issue’s importance.
When reviewing land use decisions, a district court presumes that the decision is valid, and will overturn it only if the decision is “arbitrary, capricious, or illegal.” A determination of whether a decision is arbitrary and capricious is based on all evidence included in the administrative record, both favorable and unfavorable.
A decision is “illegal” if it exceeds the local government’s authority, or if the required procedures were not followed to make the decision.
A legislative decision is NOT arbitrary and capricious if it is “reasonably debatable” that the decision could promote the public welfare. It is not necessary to show that the decision actually promotes the public welfare, or is the best alternative, as long as it is reasonably debatable that the public could benefit. Reviewing courts show great deference to the decisions made by legislative bodies.
An administrative decision is NOT arbitrary and capricious if it is supported by “substantial evidence” in the record of the proceedings. Substantial evidence is defined as “that quantum and quality of relevant evidence that is adequate enough to convince a reasonable mind to support a conclusion.” A determination of whether there is substantial evidence to support a decision considers all evidence on the record, both favorable and unfavorable. Courts concede some deference to an administrative body’s decision, but not as much as that given to a legislative decision.
Whenever possible, the administrative land use appeal procedure should be followed. However, the Utah Supreme Court has stated that, as an alternative, an affected party may file a claim directly in district court which involves review of a land use decision. See Petersen v. Riverton City , 2010 UT 58, 243 P.3d 1261.
The Petersen decision seems to allow a person to file a claim for damages (including constitutional claims) related to land use decisions, and bypass the administrative review process and time limits. It appears that such an action must involve an actual claim for damages, and not simply a request that the land use decision be reviewed.
The Ombudsman Office can help citizens understand the appeal process, and the specific administrative procedures that may be necessary. Please contact the Ombudsman for more information.