14.05.030 Appeals to Board - Powers and Duties

14.05.030 Appeals to Board - Powers and Duties.

The Board of Adjustment shall hear and decide appeals from zoning decisions applying this Title; variances from the terms of this Title; and may authorize special exceptions to the terms of this Title pursuant to the procedures and standards set forth in Subsection (10) of this Section.

(1) The applicant or any person or entity adversely affected by a decision administering or interpreting a provision within this Title may appeal that decision applying the provision by alleging that there is error in any order, requirement, decision, or determination made by an official in the administration or interpretation of the provision.

(2) Any officer, department, board, or bureau of the City affected by the grant or refusal of a building permit or by any other decision of the administrative officer or interpretation of a provision of this Title may appeal any decision to the Board of Adjustment.

(3) The Board of Adjustment shall hear and decide appeals from Planning Commission decisions regarding conditional use permits.

(4) The person or entity making the appeal has the burden of proving that an error has been made.

(5) Only decisions applying this Title may be appealed to the Board of Adjustment.

(6) A person may not appeal, and the Board of Adjustment may not consider, any zoning amendments to the Provo City Code.

(7) Appeals may not be used to waive or modify the terms or requirements of a provision within this Title.

(8) Interpretation. Upon appeal from a decision by an administrative official to decide any question involving the interpretation of any provision of this Title, including determination of the exact location of any zone boundary if there is uncertainty with respect thereto. With respect to the boundaries of the floodplain zone, the Board of Adjustment may use the Flood Insurance Rate Map (FIRM) to interpret the floodplain boundaries.

(a) Any person or entity desiring a waiver or modification of the requirements of this Title as applied to a parcel of property that he owns, leases, or in which he holds some other beneficial interest may apply to the Board of Adjustment for a variance from the terms of this Title.

(b) The Board of Adjustment may grant a variance only if:

(i) Literal enforcement of this Title would cause an unreasonable hardship for the applicant that is not necessary to carry out the general purpose of this Title;

(ii) There are special circumstances attached to the property that do not generally apply to other properties in the same district;

(iii) Granting the variance is essential to the enjoyment of a substantial property right possessed by other property in the same district;

(iv) The variance will not substantially affect the general plan and will not be contrary to the public interest; and

(v) The spirit of this Title is observed and substantial justice done.

(i) In determining whether or not enforcement of the zoning ordinance would cause unreasonable hardship under Subsection (9)(b) of this Section, the Board of Adjustment may not find an unreasonable hardship unless the alleged hardship:

(A) is located on or associated with the property for which the variance is sought; and

(B) comes from circumstances peculiar to the property, not from conditions that are general to the neighborhood.

(ii) In determining whether or not enforcement of this Title would cause unreasonable hardship as outlined under Subsection (9)(b) of this Section, the Board of Adjustment may not find an unreasonable hardship if the hardship is self-imposed or economic.

(d) In determining whether or not there are special circumstances attached to the property under subsection (9)(b) of this Section, the Board of Adjustment may find that special circumstances exist only if the special circumstances:

(i) relate to the hardship complained of; and

(ii) deprive the property of privileges granted to other properties in the same district.

(e) The applicant shall bear the burden of proving that all of the conditions justifying a variance have been met.

(f) Variances run with the land.

(g) The Board of Adjustment and any other body may not grant use variances.

(h) In granting a variance, the Board of Adjustment may impose additional requirements on the applicant that will:

(i) mitigate any harmful affects of the variance; or

(ii) serve the purpose of the standard or requirement that is waived or modified.

(10) Special Exceptions. The Board of Adjustment, as a special exception to the height regulations of the applicable zone, may approve a permit to exceed the maximum building height of a one family dwelling. To grant such special exception the Board of Adjustment shall find that plan proposed:

(a) Is a design better suited to the site than can be achieved by strict compliance to these regulations; and

(b) Satisfies the following criteria:

(i) the topography of the lot presents practical difficulties for construction when the height limitations are applied;

(ii) the structure has been designed for the topographic conditions existing on the particular lot; and

(iii) the impact of additional height on neighboring properties has been identified and reasonably mitigated.

(iv) The minimum depth of front, rear, and side yards can and will be increased as follows:

(A) Front yard: two (2) additional feet for each one (1) foot of building height in excess of thirty feet (30) measured at the front elevation.

(B) Rear yard: two (2) additional feet for each one (1) foot of building height in excess of thirty-five (35) feet measured at the rear elevation.

(C) Side yard: one (1) additional foot for each one (1) foot of building height in excess of thirty-five (35) feet measured at the side elevation.

(c) In making these findings the Board of Adjustment may consider the size of the lot upon which the structure is proposed.

(d) The burden of proof is upon the applicant to submit sufficient data to persuade the Board of Adjustment that the foregoing criteria have been satisfied.

(e) The Board of Adjustment may deny an application for a height special exception if:

(i) The architectural plans submitted are designed for structures on level, or nearly level ground and the design is transposed to hillside lots requiring support foundations such that the structure exceeds the height limits of these regulations;

(ii) The additional height can be reduced by modifying the design of the structure through the use of stepping or terracing or by altering the placement of the structure on the lot;

(iii) The additional height will substantially impair the views from adjacent lots, and the impairment can be avoided by modification; or

(iv) The proposal is not in keeping with the character of the neighborhood.

(11) Nonconforming Uses. The Board of Adjustment may make determinations regarding the existence, expansion, or modification of nonconforming uses.

(a) To grant variances varying or adapting the strict application of any of the requirements of the Floodplain Zone. In passing upon applications for a variance from the provisions of the Floodplain Zone, the Board of Adjustment shall consider all technical evaluations, all relevant factors, standards specified in other sections of this Title, and:

(i) the danger that materials may be swept onto other lands to the injury of others;

(ii) the danger to life and property due to flooding or erosion damage;

(iii) the susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner;

(iv) the importance of the services provided by the proposed facility to the community;

(v) the availability of alternative locations for the proposed use which are not subject to flooding or erosion damage;

(vi) the compatibility of the proposed use with existing and anticipated development;

(vii) the safety of access to the property in times of flood for ordinance and emergency vehicles;

(viii) the expected heights, velocity, duration, rate of rise, and sediment transport of the flood waters expected at the site; and

(ix) the costs of providing governmental services during and after flood conditions, including maintenance and repair of public utilities and facilities such as sewer, gas, electrical and water system, and streets and bridges.

(b) Upon consideration of the foregoing factors and the purposes of this Title, the Board of Adjustment may attach such conditions to the granting of variances as it deems necessary to further the purposes of this Title. The following provisions shall apply:

(i) Generally, variances may be issued for new construction and substantial improvements to be erected on a lot by one-half (1/2) acre or less in size contiguous to and surrounded by lots with existing structures constructed below the base flood level. As the lot size increases beyond the one-half (1/2) acre, the technical justification required for issuing the variance increases.

(ii) Variances may be issued for the reconstruction, rehabilitation or restoration of structures listed on the National Register of Historic Places or the State Inventory of Historic Places, without regard to the procedures set forth in the remainder of this Section.

(iii) Variances shall not be issued within any designated floodway if any increase in flood levels during the base flood discharge would result.

(iv) Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief.

(v) Variances shall only be issued upon:

(A) a showing of good and sufficient cause;

(B) a determination that failure to grant the variance would result in exceptional hardship to the applicant; and

(C) a determination that the granting of the variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, create nuisances, cause fraud on or victimization of the public, or conflict with the Provo City Code and other existing local laws or ordinances.

(vi) Any applicant to whom a variance is granted permitting construction of a house with an elevation below the base flood elevation shall be given written notice that the cost of flood insurance will be commensurate with the increased risk resulting from the lowered floor elevation.

(Am 1992-75, Am 1995-99, Am 2001-33, Am 2021-33)