First Substitute S.B. 6

1

MUNICIPAL AND COUNTY LAND USE
2 DEVELOPMENT AND MANAGEMENT
3 1997 GENERAL SESSION
4 STATE OF UTAH
5 Sponsor: LeRay McAllister
6 AN ACT RELATING TO CITIES AND TOWNS AND COUNTIES; REQUIRING
7 MUNICIPALITIES AND COUNTIES TO ESTABLISH A PLANNING COMMISSION;
8 MODIFYING PROVISIONS RELATING TO THE NUMBER AND TERM OF MEMBERS
9 AND ALTERNATE MEMBERS OF A PLANNING COMMISSION IN MUNICIPALITIES
10 AND COUNTIES; MODIFYING THE PROCEDURE FOR THE PREPARATION AND
11 ADOPTION OF A ZONING ORDINANCE IN MUNICIPALITIES AND COUNTIES;
12 MODIFYING THE TERM OF BOARD OF ADJUSTMENT MEMBERS IN
13 MUNICIPALITIES AND COUNTIES; MODIFYING THE POWERS AND DUTIES OF THE
14 BOARD OF ADJUSTMENT IN MUNICIPALITIES AND COUNTIES; MAKING
15 CONFORMING CORRECTIONS; AND MAKING TECHNICAL CORRECTIONS.
16 This act affects sections of Utah Code Annotated 1953 as follows:
17 AMENDS:
18 10-9-201, as enacted by Chapter 235, Laws of Utah 1991
19 10-9-402, as last amended by Chapter 79, Laws of Utah 1995
20 10-9-407, as last amended by Chapter 179, Laws of Utah 1995
21 10-9-701, as last amended by Chapter 23, Laws of Utah 1992
22 10-9-702, as last amended by Chapter 23, Laws of Utah 1992
23 10-9-703, as last amended by Chapter 23, Laws of Utah 1992
24 10-9-704, as last amended by Chapter 179, Laws of Utah 1995
25 17-27-201, as last amended by Chapters 179 and 225, Laws of Utah 1995
26 17-27-402, as last amended by Chapter 23, Laws of Utah 1992
27 17-27-701, as last amended by Chapter 179, Laws of Utah 1995

1 17-27-702, as last amended by Chapter 179, Laws of Utah 1995
2 17-27-703, as last amended by Chapter 23, Laws of Utah 1992
3 REPEALS:
4 10-9-706, as enacted by Chapter 235, Laws of Utah 1991
5 17-27-706, as enacted by Chapter 235, Laws of Utah 1991
6 Be it enacted by the Legislature of the state of Utah:
7 Section 1. Section 10-9-201 is amended to read:
8 10-9-201. Appointment, term, vacancy, and compensation.
9 (1) (a) Each municipality [may] shall enact an ordinance establishing a planning
10 commission.
11 (b) The ordinance shall define:
12 (i) the number [and] of members, which shall be an odd number of not less than five;
13 (ii) the number of alternate members, if the ordinance provides for alternate members;
14 (iii) the terms of the members, which shall be staggered and not less than three years in
15 length;
16 [(ii)] (iv) the mode of appointment;
17 [(iii)] (v) the procedures for filling vacancies and removal from office; and
18 [(iv)] (vi) other details relating to the organization and procedures of the planning
19 commission.
20 (2) The legislative body may fix per diem compensation for the members of the planning
21 commission, based on necessary and reasonable expenses and on meetings actually attended.
22 Section 2. Section 10-9-402 is amended to read:
23 10-9-402. Preparation and adoption of zoning ordinance.
24 (1) The planning commission shall prepare and recommend to the legislative body a
25 proposed zoning ordinance, including both the full text of the zoning ordinance and maps, that
26 represents the commission's recommendations for zoning all or any part of the area within the
27 municipality.
28 (2) (a) The planning commission shall hold a public hearing on the proposed zoning
29 ordinance before recommending it to the legislative body.
30 (b) The planning commission shall provide reasonable notice of the public hearing at least
31 14 days before the date of the hearing.

- 2 -

1 (c) If the municipality mails notice of a proposed zoning change to property owners within
2 that municipality within a specified distance of the property on which the zoning change is
3 proposed, it shall also mail equivalent notice to:
4 (i) property owners of an adjacent municipality within the same distance of the property
5 on which the zoning change is proposed; and
6 (ii) the legislative body of the adjacent municipality.
7 (3) (a) The legislative body shall hold a public hearing on the proposed zoning ordinance
8 recommended to it by the planning commission.
9 (b) The legislative body shall provide reasonable notice of the public hearing at least 14
10 days before the date of the hearing.
11 (c) If a municipality mails notice of a proposed zoning change to property owners within
12 that municipality within a specified distance of the property on which the zoning change is [being]
13 proposed, it shall also mail equivalent notice to:
14 (i) property owners of an adjacent municipality within the same distance of the property
15 on which the zoning change is being proposed; and
16 (ii) the legislative body of the adjacent municipality.
17 [(3)] (4) After the public hearing, the legislative body may:
18 (a) adopt the zoning ordinance as proposed;
19 (b) amend the zoning ordinance and adopt or reject the zoning ordinance as amended; or
20 (c) reject the ordinance.
21 Section 3. Section 10-9-407 is amended to read:
22 10-9-407. Conditional uses.
23 [(1)] A zoning ordinance may contain provisions for conditional uses that may be allowed,
24 allowed with conditions, or denied in designated zoning districts, based on compliance with
25 standards and criteria set forth in the zoning ordinance for those uses.
26 [(2) The board of adjustments has jurisdiction to decide appeals of the approval or denial
27 of conditional use permits unless the legislative body has enacted an ordinance designating the
28 legislative body or another body as the appellate body for those appeals.]
29 Section 4. Section 10-9-701 is amended to read:
30 10-9-701. Board of adjustment -- Appointment -- Term -- Vacancy.
31 (1) In order to provide for just and fair treatment in the administration of local zoning

- 3 -

1 ordinances, and to ensure that substantial justice is done, each municipality adopting a zoning
2 ordinance shall appoint a board of adjustment to exercise the powers and duties provided in this
3 part.
4 (2) (a) The board of adjustment shall consist of not less than five members and whatever
5 alternate members that the chief executive officer considers appropriate.
6 (b) The chief executive officer shall appoint the members and alternate members with the
7 advice and consent of the legislative body for a term of [five] not less than three years as
8 established by ordinance.
9 (c) The chief executive officer shall appoint members of the first board of adjustment to
10 terms so that the term of one member expires each year.
11 (3) (a) No more than two alternate members may sit at any meeting of the board of
12 adjustment at one time.
13 (b) The legislative body shall make rules establishing a procedure for alternate members
14 to serve in the absence of members of the board of adjustment.
15 (4) (a) The chief executive may remove any member of the board of adjustment for cause
16 if written charges are filed against the member with the chief executive.
17 (b) The chief executive shall provide the member with a public hearing if he requests one.
18 (5) (a) The chief executive officer with the advice and consent of the legislative body shall
19 fill any vacancy.
20 (b) The person appointed shall serve for the unexpired term of the member or alternate
21 member whose office is vacant.
22 Section 5. Section 10-9-702 is amended to read:
23 10-9-702. Organization -- Procedures.
24 (1) The board of adjustment shall:
25 (a) organize and elect a chairperson; and
26 (b) adopt rules that comply with any ordinance adopted by the legislative body.
27 (2) The board of adjustment shall meet at the call of the chairperson and at any other times
28 that the board of adjustment determines.
29 (3) The chairperson, or in the absence of the chairperson, the acting chairperson, may
30 administer oaths and compel the attendance of witnesses.
31 (4) (a) All meetings of the board of adjustment shall comply with the requirements of Title

- 4 -

1 52, Chapter 4, Open and Public Meetings.
2 (b) The board of adjustment shall:
3 (i) keep minutes of its proceedings, showing the vote of each member upon each question,
4 or if absent or failing to vote, indicating that fact; and
5 (ii) keep records of its examinations and other official actions.
6 (c) The board of adjustment may, but is not required to, have its proceedings
7 contemporaneously transcribed by a court reporter or a tape recorder.
8 (d) The board of adjustment shall file its records in the office of the board of adjustment.
9 (e) All records in the office of the board of adjustment are public records.
10 (5) The concurring vote of [three] a majority of the members of the board of adjustment
11 is necessary to reverse any order, requirement, decision, or determination of any administrative
12 official or agency or to decide in favor of the appellant.
13 (6) Decisions of the board of adjustment become effective at the meeting in which the
14 decision is made, unless a different time is designated in the board's rules or at the time the
15 decision is made.
16 (7) The legislative body may fix per diem compensation for the members of the board of
17 adjustment based on necessary and reasonable expenses and on meetings actually attended.
18 Section 6. Section 10-9-703 is amended to read:
19 10-9-703. Powers and duties.
20 (1) [The] Unless the legislative body otherwise provides by ordinance, the board of
21 adjustment shall:
22 (a) hear and decide:
23 [(a)] (i) appeals from zoning decisions applying the zoning ordinance;
24 [(b)] (ii) special exceptions to the terms of the zoning ordinance; and
25 [(c) variances from the terms of the zoning ordinance.]
26 (iii) appeals of the approval or denial of conditional use permits; and
27 [(2) The board of adjustment may] (b) make determinations regarding the existence,
28 expansion, or modification of nonconforming uses [if that authority is delegated to them by the
29 legislative body].
30 (2) The board of adjustment shall hear and decide variances from the terms of the zoning
31 ordinance.

- 5 -

1 Section 7. Section 10-9-704 is amended to read:
2 10-9-704. Appeals.
3 (1) (a) (i) The applicant or any other person or entity adversely affected by a decision
4 administering or interpreting a zoning ordinance may appeal that decision applying the zoning
5 ordinance by alleging that there is error in any order, requirement, decision, or determination made
6 by an official in the administration or interpretation of the zoning ordinance.
7 (ii) The legislative body shall enact an ordinance establishing a reasonable time for appeal
8 to the board of adjustment of decisions administering or interpreting a zoning ordinance.
9 (b) Any officer, department, board, or bureau of a municipality affected by the grant or
10 refusal of a building permit or by any other decisions of the administrative officer in the
11 administration or interpretation of the zoning ordinance may appeal any decision to the board of
12 adjustment.
13 [(2) The board of adjustment shall hear and decide appeals from planning commission
14 decisions regarding conditional use permits unless the zoning ordinance designates the legislative
15 body or another body to hear conditional use permit appeals.]
16 [(3)] (2) The person or entity making the appeal has the burden of proving that an error
17 has been made.
18 [(4)] (3) (a) Only decisions applying the zoning ordinance may be appealed to the board
19 of adjustment.
20 (b) A person may not appeal, and the board of adjustment may not consider, any zoning
21 ordinance amendments.
22 [(5)] (4) Appeals may not be used to waive or modify the terms or requirements of the
23 zoning ordinance.
24 Section 8. Section 17-27-201 is amended to read:
25 17-27-201. Establishment of commission -- Appointment, term, vacancy, and
26 compensation.
27 (1) Each county [may] shall enact an ordinance establishing:
28 (a) one countywide planning commission; or
29 (b) one district planning commission for each planning district.
30 (2) If the county establishes a countywide planning commission, the ordinance shall
31 define:

- 6 -

1 (a) the number [and] of members, which shall be an odd number of not less than five;
2 (b) the number of alternate members, if the ordinance provides for alternate members;
3 (c) the terms of the members, which shall be staggered and not less than three years in
4 length;
5 [(b)] (d) the mode of appointment;
6 [(c)] (e) the procedures for filling vacancies and removal from office; and
7 [(d)] (f) other details relating to the organization and procedures of the planning
8 commission.
9 (3) (a) If the county establishes district planning commissions, the county legislative body
10 shall enact an ordinance defining appointment procedures, procedures for filling vacancies and
11 removing members from office, and other details relating to the organization and procedures of
12 each district planning commission.
13 (b) Each district planning commission shall consist of seven members appointed by the
14 county executive with the advice and consent of the county legislative body.
15 (c) (i) Members shall serve three-year terms and until their successors are appointed and
16 qualified.
17 (ii) Notwithstanding the provisions of Subsection (3)(c)(i), the chief executive shall
18 appoint members of the first district planning commissions so that, for each commission, the terms
19 of at least two members and no more than three members expire each year.
20 (4) The legislative body may fix per diem compensation for the members of the planning
21 commission, based on necessary and reasonable expenses and on meetings actually attended.
22 Section 9. Section 17-27-402 is amended to read:
23 17-27-402. Preparation and adoption.
24 (1) The planning commission shall prepare and recommend to the legislative body a
25 proposed zoning ordinance, including both the full text of the zoning ordinance and maps, that
26 represents the commission's recommendations for zoning all or any part of the area within the
27 county.
28 (2) (a) The planning commission shall hold a public hearing on the proposed zoning
29 ordinance before recommending it to the legislative body.
30 (b) The planning commission shall provide reasonable notice of the public hearing at least
31 14 days before the date of the hearing.

- 7 -

1 (c) If the county mails notice of a proposed zoning change to property owners within that
2 county within a specified distance of the property on which the zoning change is proposed, it shall
3 also mail equivalent notice to:
4 (i) property owners of an adjacent municipality within the same distance of the property
5 on which the zoning change is proposed; and
6 (ii) the legislative body of the adjacent municipality.
7 (3) (a) The legislative body shall hold a public hearing on the proposed zoning ordinance
8 recommended to it by the planning commission.
9 (b) The legislative body shall provide reasonable notice of the public hearing at least 14
10 days before the date of the hearing.
11 [(3)] (4) After the public hearing, the legislative body may:
12 (a) adopt the zoning ordinance as proposed;
13 (b) amend the zoning ordinance and adopt or reject the zoning ordinance as amended; or
14 (c) reject the ordinance.
15 Section 10. Section 17-27-701 is amended to read:
16 17-27-701. Board of adjustment -- Appointment -- Term -- Vacancy.
17 (1) In order to provide for just and fair treatment in the administration of local zoning
18 ordinances, and to ensure that substantial justice is done, each county adopting a zoning ordinance
19 shall appoint a board of adjustment to exercise the powers and duties provided in this part.
20 (2) (a) The board of adjustment shall consist of not less than five members and whatever
21 alternate members that the chief executive officer considers appropriate.
22 (b) The legislative body shall establish the terms for members of the board of adjustment
23 by ordinance. The terms shall not be less than three years.
24 (c) The chief executive officer shall appoint the members and alternate members with the
25 advice and consent of the legislative body.
26 (d) The chief executive officer shall appoint members of the first board of adjustment to
27 terms so that the term of one member expires each year.
28 (3) (a) No more than two alternate members may sit at any meeting of the board of
29 adjustment at one time.
30 (b) The legislative body shall make rules establishing a procedure for alternate members
31 to serve in the absence of members of the board of adjustment.

- 8 -

1 (4) (a) The chief executive may remove any member of the board of adjustment for cause
2 if written charges are filed against the member with the chief executive.
3 (b) The chief executive shall provide the member with a public hearing if he requests one.
4 (5) (a) The chief executive officer with the advice and consent of the legislative body shall
5 fill any vacancy.
6 (b) The person appointed shall serve for the unexpired term of the member or alternate
7 member whose office is vacant.
8 Section 11. Section 17-27-702 is amended to read:
9 17-27-702. Organization -- Procedures.
10 (1) The board of adjustment shall:
11 (a) organize and elect a chairperson; and
12 (b) adopt rules that comply with any ordinance adopted by the legislative body.
13 (2) The board of adjustment shall meet at the call of the chairperson and at any other times
14 that the board of adjustment determines.
15 (3) The chairperson, or in the absence of the chairperson, the acting chairperson, may
16 administer oaths and compel the attendance of witnesses.
17 (4) (a) All meetings of the board of adjustment shall comply with the requirements of Title
18 52, Chapter 4, Open and Public Meetings.
19 (b) The board of adjustment shall:
20 (i) keep minutes of its proceedings, showing the vote of each member upon each question,
21 or if absent or failing to vote, indicating that fact; and
22 (ii) keep records of its examinations and other official actions.
23 (c) The board of adjustment may, but is not required to, have its proceedings
24 contemporaneously transcribed by a court reporter or a tape recorder.
25 (d) The board of adjustment shall file its records in the office of the board of adjustment.
26 (e) All records in the office of the board of adjustment are public records.
27 (5) The concurring vote of [at least three] a majority of the members of the board of
28 adjustment is necessary to reverse any order, requirement, decision, or determination of any
29 administrative official or agency or to decide in favor of the appellant.
30 (6) Decisions of the board of adjustment become effective at the meeting in which the
31 decision is made, unless a different time is designated in the board's rules or at the time the

- 9 -

1 decision is made.
2 (7) The legislative body may fix per diem compensation for the members of the board of
3 adjustment, based on necessary and reasonable expenses and on meetings actually attended.
4 Section 12. Section 17-27-703 is amended to read:
5 17-27-703. Powers and duties.
6 (1) [The] Unless the county legislative body otherwise provides by ordinance, the board
7 of adjustment shall:
8 (a) hear and decide:
9 [(a)] (i) appeals from zoning decisions applying the zoning ordinance;
10 [(b)] (ii) special exceptions to the terms of the zoning ordinance; and
11 [(c) variances from the terms of the zoning ordinance.]
12 (iii) appeals of the approval or denial of conditional use permits; and
13 [(2) The board of adjustments may] (b) make determinations regarding the existence,
14 expansion, or modification of nonconforming uses [if that authority is delegated to them by the
15 legislative body].
16 (2) The board of adjustment shall hear and decide variances from the terms of the zoning
17 ordinance.
18 [(3) If authorized by the legislative body, the board of adjustment may interpret the zoning
19 maps and pass upon disputed questions of lot lines, district boundary lines, or similar questions
20 as they arise in the administration of the zoning regulations.]
21 Section 13. Repealer.
22 This act repeals:
23 Section 10-9-706, Special exceptions.
24 Section 17-27-706, Special exceptions.

- 10 -