In a five to two decision on Tuesday night the council voted to eliminate the current volunteer board of appeals in favor of a one person professional paid position to hear and decide appeals cases. The county will contract with one or more individuals, likely from outside the county, to hear the cases.
The issue has been under discussion for more than a year as the council asked the planning commission to consider alternatives. Over the past few years the appeals board has had problems maintaining enough members to form a quorum. The appeals board has also reversed several decisions made by the county council. The opinion has also been expressed that it is difficult for volunteer members to fully understand the complexity of the legal issues surrounding the appeals, including the county code. The question gained greater momentum when the appeals board Chairman, Brad Richards wrote a letter to the chairman of the county council last September.
In the letter he said, “As the chairman of the Morgan County Board of Appeals, I am writing this letter to ask the Morgan County Council to address what I feel are significant concerns with the current BOA system. I wish to make it very clear that in doing so, I represent only my own views, and not necessarily those of my fellow Board Members. However, in the short time I have served on the Board, it has become very apparent to me that the system as it is currently organized has serious flaws.
Although the BOA [Board of Appeals] was originally designed to hear appeals to County Council decisions when there are clear-cut abuses of power or egregious errors, in practice it has become a court of “second opinion,” where all comers can get any decision made by the County Council reversed for a moderate fee and a few hours of their time. If these recent BOA reversals were due to flaws in the original Council decisions, they would be entirely justified. However, I am forced to conclude that this is not the case. In each appeal that I have participated in, I believe that the Council’s decision has been well within the area of reasonable deference that should be granted to a local governing body in the application of the code. I also believe that if the County were to take any one of the recent BOA decisions to District Court, the BOA decisions would likely be over-turned.
Neither, however, do I wish to imply that the fault lies with the current Board members themselves. I believe that they are all basically honest, hard-working, dedicated volunteers, who really have the best interests of the citizens of Morgan County at heart. I believe that the problems lies with the Board of Appeals system itself.
Since the basic purpose of an Appeals Board is to examine the decisions made by the County Council in the light of current land use law and recent Utah Supreme Court decisions, it stands to reason that it is essential for any Board member to have a fairly extensive knowledge of the applicable statutes and land use law in order to do his job. But finding anyone willing to serve on the BOA in a small county like Morgan is difficult enough, as evidenced by our having one position on the board still un-filled, and the difficulty we have had in convening a full quorum for an appeal hearing. To find experts in land use law, or even citizens fairly well versed in legal issues to volunteer for the board is even more difficult. In addition, each Board member brings to the table his own set of biases and beliefs that, in the absence of good legal training, skews the decisions of the board still further astray. The result has been that recent decisions on the BOA have been made based mainly on emotion rather than law, leading to final decisions that, in my opinion, are more arbitrary and capricious than the original Council decisions that have been over-turned.
This, unfortunately, is not a problem that will be solved simply by calling new Board members, or even by requiring token participation in a land-use law class. I believe that the best solution for this problem is to change our current appeals system to a system of a Hearing Officer to review cases of appeal or variance requests, with the option for applicants to then appeal to District Court if desired. In this way, the decisions of appeal will be made by professionals who are trained in land use law rather than left to the vagaries of well-intentioned amateurs like myself. “
The planning commission debated the issue and determined that a review by a professional with the correct understanding of appropriate laws and codes would be a better alternative. Their recommendation was then forwarded to the council. Their recommendation also included a provision that the county should recover the costs of the process from the applicants. Several members of the council felt that this could place too great a burden on the applicant and decided to revisit the fees once bids have been received for the service and costs can be fully understood. The county currently charges $300 to file for an appeal.
The council will now move forward with advertising and selecting the individuals who will hear the appeals. The current board will stay in place until suppliers can be identified and services contracted. Members Kilmer and Mecham requested more time to fully understand the issue and voted against the change.