The following is a basic outline of the types of cases the Board of Adjustment hears. If you have any questions regarding any of these terms or how they apply to your case, please contact Michael Wilcox at 801-568-7261.
What is a "variance?"
A variance is permission by the City to waive or alter a standard requirement of the Development Code (zoning ordinance). For example, a builder may ask that a new structure be allowed closer to the property line or be allowed to cover more of the property than is allowed by code. State Law requires that certain findings must be met in order for a variance to be granted.
When would I need a variance?
A variance is needed when there is some hardship associated with a property that is keeping that property from being used in a way generally enjoyed by property owners in the area. You may request a variance, for example, when the property on which you are building is unusually narrow or has some other topographic hardship. A variance is never granted to allow uses which are not already permissible within a zoning district.
What conditions must exist in order for a variance to be granted?
There are five findings that, by law, must be made before a variance can be granted.
- Literal enforcement of the zoning ordinance would cause an unreasonable hardship for the applicant that is not necessary to carry out the general purpose of the zoning ordinance.
It must be demonstrated that literal enforcement of the ordinance would prohibit the development of the property in a compliant manner.
- There are special circumstances attached to the property that do not generally apply to other properties in the same district.
These special circumstances can involve the shape, size, topography, location, or surroundings of the property - - in short, some physical constraint which is unique to the site. Special circumstances are not interpreted to be something intangible, such as lack of knowledge of the Code or that misinformation was given at the time that the property was purchased.
- Granting the variance is essential to the enjoyment of a substantial property right possessed by other property in the same district.
It must be demonstrated to the Board that you are seeking a property right that is generally enjoyed in the Zoning District, not some additional privilege not generally enjoyed.
- The variance will not substantially affect the general plan and will not be contrary to the public interest.
The proposed variance must comply with the intent of the comprehensive plan and zoning code of the City. For example, a low density housing district is characterized by wide open spaces between dwellings. The granting of a variance to build to the property line would be contrary to the intent of the comprehensive plan and zoning code.
- The spirit of the zoning ordinance is observed and substantial justice done.
A variance cannot be granted if it would pose any threat to the public health or safety. This includes concerns such as fire safety, structural stability, clearance, preservation of light and open space, and visual and aesthetic concerns.
Additionally, City ordinance State Law list the following criteria as being invalid hardships for a variance request. If the answer is in the affirmative for either criteria, then a request must be denied.
- Is the Hardship complained of economic in nature?
If it is complained that to comply with the law that it would cost more to build or develop than to use a reduced setback or have a requirement waived, it would be determined to be an invalid hardship and a variance would be denied.
- Is the Hardship complained of self-imposed?
If the hardship was created by a current or previous land owner (such as an illegal division of land or not wanting to change house plans), then the Board is bound by law to deny the request. A typical example is that an applicant has a set of house plans that he would like to build, but the dimensions of the home do not fit on the lot that he has purchased. The lot is buildable without a variance, but the applicant "creates" the hardship by not wanting to change house plans or modify the desired plans to accommodate the lot.
Justifiable versus Not-Justifiable Hardships
Examples of Requests that may be Justifiable Hardships
- An extra wide utility easement which interferes with the buildable area of a lot may justify encroachment into a required yard area
- Unusual size, shape or topography of a lot may justify some variance from what would normally be required under the ordinance. An example are residential lots that have a steep hillside, restricting the locations where a home may be built upon the lot.
Examples of Requests That Are Not Considered Justifiable
- A hardship is not a problem that you create yourself. For instance, if your house is built in such a manner that you cannot expand the living room without encroaching into a required yard, you will be creating the situation/problem and the ordinance does not recognize that as a legitimate hardship
- A prior property owner sold "excess" lot area to an adjacent property owner, making it difficult (or impossible) to add on to you house without encroaching into a required yard area. Acts of a current or previous property owners are considered "self-created hardships" under the law, and the Board of Adjustment is prohibited from considering such hardships as valid.
- Economics. If it would cost less money to add an extension to your home in one location over another, it is not considered a legitimate hardship. State Law forbids the Board of Adjustment from considering economic factors (such as costing less if constructed in one location over another) as a legitimate hardship.
How long does the process take?
Normally, about four to six weeks. This period will be longer if you appeal the decision of the Board of Adjustment to District Court.
What documents do I submit?
- A completed application form signed by the property owner.
- 10 copies of a site plan (folded 9" by 12" maximum) Site plan must be drawn to scale.
- One 8.5" by 11" reduction of all site plans
- Receipt showing payment of filing fee. Payments may be made at the Utility Billing window on the main floor, west end.
- Names and address of all property owners within 300 feet of the subject property. The names and address must be typed on labels.
What is involved in the public hearing?
In most cases, five days prior to the hearing, you and neighboring property owners within 300 feet will receive a notice about the time and location of the hearing. At the hearing, the Board of Adjustment will consider all the evidence presented by you, the Community Development Department, and other interested parties. The final decision will be based on an evaluation of the property, the surrounding neighborhood and all testimony and evidence presented at the hearing. You will be notified of the decision after the close of the hearing and will also receive a letter from the Community Development Department confirming the decision.
What is a Staff Report?
City Staff will create a report from the information provided by you on the application form. Staff will indicate the exact acreage, street frontages, current use of land, and other general informational items. Staff will also provide any additional information that you may not have been aware of regarding the questions asked on the application.
Can the decision be appealed?
You or anyone else who is dissatisfied with the decision may appeal the Board of Adjustment's decision to the 3rd District Court of the State of Utah. To appeal, you must file the appropriate documents with the Court within 30 days of the final decision.
What kinds of decisions may be appealed?
Decisions by the Zoning Administrator, other City administrative official or the Planning Commission involving the City's Land Development Code (zoning ordinance). You may appeal, for example, if the City staff denies your request for a sign permit or any other planning approval. Even if your application has been approved, you may appeal any conditions that may have been attached to that approval. You may also appeal an alleged error made by the Zoning Administrator regarding the enforcement of a zoning ordinance against your property. As a citizen, you may appeal the approval or disapproval of any planning permit request by anyone.
Who considers appeals?
The Board of Adjustment hears and decides all appeals of final decisions made by Planning Commission (exception - Conditional Use Permit Appeals are heard by the City Council), and all final decisions and interpretations made by City Staff that involve the Land Development Code (zoning ordinance).
Who may appeal?
Any interested individual as well as members of the Planning Commission, Board of Adjustment, and the City Council.
How do I file an appeal?
To appeal a decision/enforcement action by the Zoning Administrator, other administrative staff member, or Planning Commission, you must file an application with the Board of Adjustment. To appeal a Conditional Use Permit decision made by the Planning Commission, you file an application with the Administrative Aide to the City Council.
How long do I have to appeal a decision?
Ordinance requires that all appeals be filed within ten calendar days from the date the land use authority issues a written decision, or approval of the minutes of the meeting at which the decision was made, whichever occurs first.
How long before a hearing will be held?
Usually within 30 days. During this time, any enforcement action is suspended, but the permit is held valid until a decision is reached by the appellate body.
Is there a fee for filing an appeal?
Yes. A schedule of fees is available in the Community Development Department offices.
Is there any way to appeal a decision made by the Board of Adjustment or City Council?
Yes, through the 3rd District Court. You must file an appeal within 30 days after the decision is made. The appeal under Utah Law restricts the appeal to illegal actions taken by the Board or City Council (i.e., illegal reasons for granting the request, not following established procedure, etc.)