Minutes of the Iron County Commission meeting held June 26, 2007 were approved as amended on a motion by Lois Bulloch. Second was by Alma Adams. Voting: Wayne Smith, Aye; Lois Bulloch, Aye; Alma Adams, Aye.

ELECTED OFFICIALS REPORTS :

Alma Adams reported that he has met with the Federal Marshall’s Officers concerning the number of federal prisoners being housed at the jail. The Marshall’s office is not sending as many prisoners due to transportation costs. INS will be contacted to determine if there are prisoners available to fill the empty beds at the jail.

Wayne Smith reported that Steve Christensen representing Newcastle Water Company has complained that the County is imposing unreasonable requirements for repair of damage to roads in Newcastle due to the installation of a new culinary water pipeline system. David Yardley responded that the construction company is damaging the roads by using track vehicles on the oil and scraping the oil into the trench by backfilling with a trackhoe with teeth on the bucket. It is a requirement of encroachment permits that all damage done to the roads is to be repaired to original standards.

Lois Bulloch reported that the County funding match for Southwest Behavioral Center will be $120,518 for the 2007-2008 FY.

The Commission also discussed the possibility of purchasing SITLA property for prairie dog habitat. David Yardley was asked to write a letter to SITLA requesting additional information on parcels available. The County will also need assurances from USFWS regarding the exchange rate for habitat and the procedure to designate parcels suitable for trade.

ORDINANCE 2007-7 ZONING ORDINANCE ENFORCEMENT AMENDMENT:

Alma Adams made a motion to open a public hearing to receive comments regarding an amendment to the Land Management Code regarding the enforcement of zoning requirements. Second by Lois Bulloch. Voting: Wayne Smith, Aye; Lois Bulloch, Aye; Alma Adams, Aye.

The Commission reviewed ordinance 2007-7 regarding enforcement of zoning regulations. Kevin Thurman explained that the purpose of the current ordinance is to clarify procedure and to incorporate recommendations regarding hearings by the Board of Adjustments. It also parallels the enforcement of the nuisance ordinance which will be presented as ordinance 2007-8.

Chad Nay reported that the Planning Commission has reviewed the amendments and has recommended that the Commission adopt the ordinance as presented.

Lois Bulloch made a motion to close the public hearing and to adopt Ordinance 2007-7 as recommended by the Planning Commission. Second by Alma Adams.

IRON COUNTY

ORDINANCE NO. 2007-7

AN ORDINANCE OF IRON COUNTY, UTAH AMENDING CHAPTERS 17.72 – ENFORCEMENT AND 17.76 – APPEALS, OF TITLE 17 OF THE IRON COUNTY CODE; ADOPTING PROVISIONS RELATING TO THE ENFORCEMENT OF ZONING VIOLATIONS WITHIN THE BOUNDARIES OF IRON COUNTY, UTAH; PROVIDING MEANS FOR THE CORRECTION OF ZONING VIOLATIONS; PROVIDING PENALTIES FOR THE VIOLATION OF THIS ORDINANCE; AND PROVIDING AN EFFECTIVE DATE

WHEREAS, Iron County has adopted zoning ordinances incorporated within the Iron County Land Management Code, which has been amended from time to time; and

WHEREAS, violations of zoning ordinances in the unincorporated areas of Iron County, Utah is a pervasive threat to the health, safety, and general welfare of the inhabitants of Iron County; and

WHEREAS, the existing portions of Chapter 17.72 pertaining to enforcement of zoning ordinances are inadequate to fully, properly, and expeditiously enforce existing Iron County zoning ordinances; and

WHEREAS, the Iron County Planning Commission and the Iron County Commission have now formulated, reviewed, and considered the proposed amendments to the enforcement provisions of Chapter 17.72; and

WHEREAS, the Iron County Planning Commission and the Iron County Commission have held public hearings to receive comment on the proposed amendments as required by §17-27a et. seq. Utah Code Annotated 1953 as amended; and

WHEREAS, the Planning Commission, after the full and careful consideration of all public comment, has forwarded a recommendation to the Iron County Commission for amendment and revisions to the Iron County Zoning Ordinance; and

WHEREAS, on July 9, 2007, the Iron County Board of County Commissioners conducted a public hearing to receive comment on the Planning Commission recommendation pursuant to §17-27a et. seq. Utah Code Annotated 1953 as amended; and

WHEREAS, following the public hearing, and after receipt of all comment and input, and after careful consideration, the Iron County Commission has determined that it is in the best interest of the public health, safety, and welfare of Iron County that Chapter 17.72 pertaining to the enforcement of zoning violations be amended.

NOW, THEREFORE, BE IT ORDAINED by the County Legislative Body of Iron County, Utah that Title 17 – Zoning, including Chapter 17.72 – Enforcement, and Chapter 17.76 – Appeals, of the Iron County Code is hereby amended as follows.

SECTION 1 – SUBSTANTIVE PROVISIONS

Chapter 17.72

ENFORCEMENT

Sections:

17.72.010 Definitions.

17.72.020 Responsibility for violation of this Chapter

17.72.030 Enforcement Officers.

17.72.040 Finding of zoning violation.

17.72.050 Notice of Zoning Violation.

17.72.060 Voluntary Correction Agreement.

17.72.070 Violation of County zoning ordinances.

17.72.080 Administrative citation.

17.72.090 Abatement by County.

17.72.100 Monetary fines.

17.72.110 Civil enforcement.

17.72.120 Non-exclusive remedies.

17.72.130 Withholding of building permits and revocation of permits/approvals etc.

17.72.140 Reconsideration/revocation of approvals, permits and licenses.

17.72.150 Revocation procedures.

17.72.160 Appeal of administrative citation.

17.72.170 Severability clause.

17.72.180 Enforcement of zoning violations found elsewhere in County Ordinance.

17.72.010 Definitions.

As used in this Chapter:

“Abatement” means the repair, replacement, removal, destruction, correction, or other remedy of a condition which constitutes a zoning violation by such means, in such a manner, and to such an extent as the Enforcement Officer determines is necessary in the interest of the general health, safety, and welfare of Iron County inhabitants.

“Completion Date” means the date by which the Responsible Person must abate or correct a zoning violation. The Completion Date is set by the Enforcement Officer in the Notice of Zoning Violation, Voluntary Correction Agreement, administrative citation, or criminal citation, or by a Hearing Officer or judge in a decision, ruling, or order.

“Hearing Officer” means the person(s) designated to hear appeals pursuant to this Chapter. The Hearing Officer shall be the County Board of Adjustment or some designee named by the County Commission. The designee need not be a County employee. The County Commission may also appoint a committee to function as the Hearing Officer.

“Responsible Person” means the person(s) responsible for correcting or abating a zoning violation pursuant to this Chapter. The Responsible Person includes the property owner and any person who causes or permits a zoning violation to occur or remain upon property in the County, and includes but is not limited to the owner(s), lessor(s), lessee(s), or other person(s) entitled to control, use, and/or occupy property where a zoning violation occurs. In cases where there is more than one Responsible Persons, the County may proceed against one, some, or all of them.

“Zoning Violation” means any violation of the Iron County Zoning Ordinance (codified as Title 17), the Iron County Subdivision Ordinance (codified as Title 16), or any other Iron County zoning ordinance.

17.72.020 Responsibility for violation of this Chapter.

The Responsible Person(s) is responsible for abating zoning violations under this Chapter. Any person, whether as owner, agent, or occupant, who commits, aids in committing, or contributes to a zoning violation, or who supports, continues, or retains a zoning violation, is responsible for the zoning violation and is therefore a Responsible Person pursuant to this Chapter. Every successive owner or tenant of a property or premises who fails to correct a zoning violation upon or in the use of such property or premises caused by a former owner or tenant is responsible therefore in the same manner as the one who first committed it.

17.72.030 Enforcement Officers.

The Zoning Administrator, Building Inspector, County Attorney, County Sheriff or some other duly designated officer of the County is charged with the enforcement of the provisions of this Chapter and shall be authorized to make examination and investigation of all real property in the County, as allowed by law, to determine whether the Responsible Person(s) is complying with the provisions of this Chapter. The County Attorney’s Office shall file such actions in court as are necessary. Failure of such County agents to pursue appropriate legal remedies shall not legalize any violation of such provisions.

17.72.040 Finding of zoning violation.

This Title 17, Title 16, or other Iron County zoning ordinances may be enforced by the County by any and all appropriate means authorized by state law and County ordinance. If a zoning violation is found to exist, the County may withhold building permits and revoke development approvals, permits, and licenses. If an Enforcement Officer has probable cause to believe a zoning violation exists, the Enforcement Officer shall attempt to have the Responsible Person correct the zoning violation. Although the Enforcement Officer’s first step in correcting the zoning violation will always be to obtain voluntary compliance, the Enforcement Officer may pursue any remedy or combination of remedies available pursuant to this Chapter, state law, or common law in order to correct the zoning violation. Nothing in this section shall be interpreted to prohibit the County from engaging in its standard prosecution practices. Therefore, the County may prosecute violators of County ordinances or State laws without first having to comply with the provisions of this Chapter, even though the activity or conduct prosecuted may also constitute a zoning violation under this Chapter.

17.72.050 Notice of Zoning Violation.

A. Notice. Except as otherwise provided by this Chapter or County ordinance, whenever a zoning violation is found to exist within the County, the Enforcement Officer shall serve written notice to the Responsible Person in person or by sending notice by certified mail addressed to the Responsible Person at the last-known address as shown in the records of the County. If notice has already been served once during the calendar year directing correction or abatement, no further notice need be served to compel such correction or abatement during such calendar year.

B. Contents of Notice. The Notice of Zoning Violation issued under the provisions of this Chapter or other zoning ordinance shall contain:

1. The location of the zoning violation, if the same is stationary.

2. A description of what constitutes the zoning violation.

3. A statement of acts necessary to correct the zoning violation.

4. A statement that correction or abatement must occur within 30 days of service of notice.

5.. A statement that if the zoning violation is not corrected as directed, the County will take necessary actions, as listed in this Chapter, to correct the zoning violation.

17.72.060 Voluntary Correction Agreement.

The Enforcement Officer, if appropriate, should attempt to obtain voluntary correction from the Responsible Person and enter into a Voluntary Correction Agreement before other remedies are undertaken. A Voluntary Correction Agreement is a contract between the County and the Responsible Person in which the Responsible Person agrees to correct or abate the zoning violation within a specified time and according to specified conditions. The purpose of the Voluntary Correction Agreement is to provide a mechanism for the Responsible Person to correct or abate the zoning violation voluntarily before more severe remedies are undertaken by the County. If the Responsible Person complies with the terms of the Agreement, the County shall take no further action against the Responsible Person related to the zoning violation(s) described in the Agreement unless the zoning violation(s) recurs. Because committing a zoning violation is a criminal violation, this option is a privilege and not a right and the Responsible Person has no entitlement. Thus, the Enforcement Officer may chose to correct the zoning violation using one or more of the other procedures set forth in this Chapter, state law, or common law.

A. The Voluntary Correction Agreement shall include the following:

1. The name and address of the Responsible Person;

2. The street address of the zoning violation, or a description sufficient to identify the building, structure, premises, or land upon or within which the zoning violation exists;

3. A description of the zoning violation;

4. The necessary corrective action to be taken, and a date or time by which correction or abatement must be completed (“Completion Date”). The date or time by which correction or abatement must be completed shall not be longer than 6 months;

5. An agreement by the Responsible Person that the County may inspect the premises as may be necessary to determine compliance with the Voluntary Correction Agreement;

6. An agreement by the Responsible Person that, if the terms of the Agreement are not met, the County may:

a. issue an administrative or criminal citation(s);

b. correct the zoning violation, recover its costs and expenses, and place a lien on the property;

c. issue a monetary fine pursuant to this Chapter; and/or

d. pursue any other legal remedy available;

7. An agreement by the Responsible Person acknowledging that he/she waives the right to appeal the Enforcement Officer’s finding that a zoning violation exists and the right to appeal the specific corrective action required by the Voluntary Correction Agreement; and

8. An acknowledgment by the Responsible Person that failure to comply with the Voluntary Correction Agreement may be grounds for criminal prosecution.

B. Extension of Time. The Enforcement Officer may grant an extension of time for abating the zoning violation pursuant to the Voluntary Correction Agreement if the Responsible Person has shown due diligence and/or substantial progress in abating the zoning violation but unforeseen circumstances render correction or abatement under the original conditions unattainable.

C. Other Remedies. If the Enforcement Officer and the Responsible Person cannot agree to terms for correcting the zoning violation, the Enforcement Officer may correct the zoning violation using one or more of the procedures set forth in this Chapter, state law, or common law.

17.72.070 Violation of County zoning ordinances.

A. Zoning Violation Declared Criminal Violation and Unlawful. It shall be unlawful for any person to cause, permit, maintain, or allow the creation or maintenance of a zoning violation. Whoever violates any County zoning ordinance shall be guilty of a Class B misdemeanor. Any zoning violation shall constitute a separate offense on each successive day continued. Any person who knowingly obstructs, impedes, or interferes with the County or its agents, the Responsible Person in the performance of duties imposed by this Chapter, a decision and order issued by the Hearing Officer or judge, or a Voluntary Correction Agreement, is guilty of a Class B misdemeanor. The penalty for a Class B misdemeanor includes a maximum fine of one thousand dollars and/or six months in jail. The Sheriff’s Department or an Enforcement Officer (if a duly commissioned peace officer of the County), may issue a criminal citation for violations of this Chapter or other zoning ordinance.

B. Criminal Citation/Action. Criminal actions may be initiated by the Sheriff’s Department or the Enforcement Officer (if a duly commissioned peace officer of the County) by issuing a criminal citation or by the County Attorney’s Office by filing an Information.

C. Violation Declared a Public Nuisance. Any building or structure which has been set up, erected, constructed, altered, enlarged, converted, moved, remodeled, or maintained contrary to the provisions of County zoning ordinances, and any use of land or building or premises established, conducted, maintained, or operated contrary to the provisions of County zoning ordinances are hereby declared to be unlawful and opposed to the orderly development of the County and shall therefore be considered a public nuisance.

17.72.080 Administrative citation.

A. Administrative Citation. When the Enforcement Officer has found substantial evidence indicating a zoning violation has been committed, the Enforcement Officer may issue an administrative citation to the Responsible Person. The administrative citation shall include the following:

1. The name and address of the Responsible Person;

2. The location of the zoning violation;

3. A description of the zoning violation;

4. The amount of the monetary fine, as specified in Section 17.72.100;

5. The date that correction or abatement is required (“Completion Date”) and a notice that the County may correct the zoning violation in accordance with Section 17.72.090 if correction does not occur by that date;

6. The time for appealing the administrative citation to the Hearing Officer and the procedure for filing an appeal;

7. A statement that no additional monetary fine will be assessed if the Enforcement Officer approves the completed, required corrective action prior to the Completion Date;

8. A statement that the Sheriff’s Department or Enforcement Officer (if a duly commissioned peace officer of the County), may issue a criminal citation if the correction or abatement is not completed before the Completion Date; and

9. A statement that the County may pursue any and all other legal remedies, including prosecution, if the correction or abatement is not completed before the Completion Date.

B. Service of Administrative Citation. The Sheriff or Enforcement Officer shall serve the administrative citation upon the Responsible Person, either personally or by mailing, certified, return receipt requested, at his/her last known address as shown on the current County records. If the Responsible Person cannot, after due diligence, be personally served within Iron County and if an address for mailed service cannot, after due diligence, be ascertained, notice shall be served by posting a copy of the administrative citation conspicuously on the affected property or structure. Proof of service shall be made by a written declaration under penalty of perjury executed by the person effectuating the service, declaring the time and date of service, the manner by which the service was made, and, if by posting, the facts showing that due diligence was used in attempting to serve by person and by mail.

C. No Extension of Time. No extension of the time specified in the administrative citation for correction or abatement of the zoning violation may be granted, except by order of the Hearing Officer.

17.72.090 Abatement by County.

A. Abatement. When a Responsible Person fails to comply with the Notice of Zoning Violation, the terms of a Voluntary Correction Agreement, an administrative citation, an order of the Hearing Officer, criminal citation, or court order, the Enforcement Officer is authorized to employ necessary assistance and cause that such zoning violation be remedied, when appropriate and feasible, through destruction, removal, or other means. The Enforcement Officer shall prepare an itemized statement of all expenses incurred in the removal and destruction of the same and shall mail a copy thereof to the Responsible Person demanding payment within sixty (60) days of the date of mailing. Such notice shall be deemed to be delivered when served upon the Responsible Person or when mailed by registered mail and addressed to the last known address of the Responsible Person.

B. Emergency Abatement. Whenever a zoning violation is occurring which constitutes an immediate and emergent threat to the public health, safety, or welfare or to the environment, the County, when feasible, may summarily and without prior notice correct or abate the condition. Notice of such abatement, including the reason for it, shall be given to the Responsible Person as soon as reasonably possible after the correction or abatement.

C. Entering onto Property. Using any lawful means, the County may enter upon the subject property and may remove, correct, or abate the condition which is subject to abatement. The County may seek, but is not required to seek, judicial process as it deems necessary to effect the removal, correction, or abatement of such condition.

D. Confiscation of Property. During an abatement proceeding, any personal property constituting a County zoning violation, may be confiscated as part of the abatement process. Any property that has been confiscated by the County will be held pending the resolution of the zoning violation. The owner may recover the property upon showing that the zoning violation has been corrected or that substantial efforts, as determined by the Enforcement Officer, have been made to correct the zoning violation, provided, however, that the property owner pay the cost of storage of the property. If, after 90 days of the property being confiscated, the property owner fails to claim the confiscated property, and after the County complies with the requirements of U.C.A. § 77-24a-5 (as currently amended), the County may dispose of the property, including sale at auction, disposal, etc., and seek to collect the cost of storage from the property owner. The County may also pursue any other remedy as provided by law.

E. Costs Declared Lien. Any and all costs incurred by the County in the abatement of a zoning violation under the provisions of this Chapter or other County ordinance shall constitute a lien against the property upon which such zoning violation existed, which lien shall be filed, proven, and collected as provided for by law. Such lien shall be notice to all persons from the time of its recording and shall bear interest at the legal rate thereafter until satisfied.

F. County Not Civilly Liable. Neither the County, nor its officers, agents, or employees, shall be civilly liable to any Responsible Person for the abatement of a zoning violation or to any other person for the failure to abate a zoning violation.

17.72.100 Monetary fines.

In the event that an administrative citation is issued, the Responsible Person shall pay a monetary fine pursuant to this Section. If the Responsible Person continues a zoning violation after the Completion Date pursuant to an administrative citation or Voluntary Correction Agreement, the Responsible Person shall pay the County a monetary fine for each week, such fine to accrue on the next day following the Completion Date, that the zoning violation continues after the Completion Date. The zoning violation shall be considered to continue until the Enforcement Officer approves the Responsible Person’s action(s) to correct or abate the zoning violation. The amount of the monetary fine shall be as follows:

A. A fine not to exceed a maximum of One Hundred Dollars ($100.00) per week for each week that the zoning violation remains uncorrected or unabated after the Completion Date as stated in the Voluntary Correction Agreement. The Hearing Officer may set a fine in the amount of zero dollars ($0). The Enforcement Officer shall serve the Responsible Person in person or by mail notice of the accrual of such fine(s).

B. A fine not to exceed a maximum of Two Hundred Dollars ($200.00) initially upon issuance of an administrative citation and a fine not to exceed a maximum of Two Hundred Dollars ($200.00) for each week the zoning violation is uncorrected or unabated after the Completion Date as stated in the administrative citation. The Hearing Officer may set a fine in the amount of zero dollars ($0).

C. Upon notification by the Responsible Person or his/her designee that the agreed-upon abatement is complete, all fines (if any) shall cease the following day after notification is received; however, if the weekly fine has already accrued, the Responsible Person shall not receive credit for remaining days in the week. An Enforcement Officer shall inspect and pass the corrective action off as completed, and, if not completed, fines shall continue to accrue in accordance with this Section.

D. The monetary fine shall be cumulative and may not be waived by the Enforcement Officer. Payment of a monetary fine pursuant to this section does not relieve the Responsible Person from the duty to abate the zoning violation as required by the Voluntary Correction Agreement or administrative citation. The monetary fine constitutes a personal obligation of the Responsible Person. Any monetary fine assessed must be paid to the County within thirty (30) calendar days from the date the administrative citation or notice is received in person or by mail.

E. The County Attorney’s Office is authorized to take appropriate action to negotiate the amount of the monetary fine, collect the monetary fine, determine the time period in which the fine shall be paid, and take any other action necessary to resolve the fine. In determining the time period in which to pay, the County Attorney’s Office may take into consideration the number of days between the required completion date and the actual completion date, the input of the Enforcement Officer, the cooperation of the Responsible Person, etc.

F. The County may also seek to collect reasonable attorney’s fees and costs incurred in collecting the monetary fine where allowed by law.

G. The incurrence of monetary fines under this Section shall not limit the available remedies of the Enforcement Officer or the County Attorney’s Office under this Chapter.

17.72.110 Civil enforcement.

Appropriate actions and proceedings may be taken by the county in law or in equity to prevent any violation of this title, to prevent unlawful construction, to recover damages, including the cost, if any, of correcting the zoning violation, to restrain, correct, or abate a violation, and to prevent illegal occupancy of a building, structure or premises. (Ord. 158 § 1 (part), 1998).

17.72.120 Non-exclusive remedies.

The County may take any or all of the above mentioned remedies (administrative, civil, or criminal) to abate, enjoin, or correct a zoning violation, to punish any person or entity that creates, causes, or allows a zoning violation to exist, and/or to recover damages for violation of this Chapter or other County zoning ordinance. The abatement of a zoning violation does not prejudice the right of the County or any person to recover damages or penalties for its past existence.

17.72.130 Withholding of building permits and revocation of permits/approvals etc.

Notwithstanding the procedures outlined in this Chapter, the county may also enforce Title 17, Title 16, and other zoning violations through the withholding of building permits and revocation of development approvals, permits, and licenses. No building permit shall be issued for the construction of any building or structure located on a lot subdivided or sold in violation of the provisions of this title, nor shall the county have any obligation to issue certificates of occupancy or to extend roads or other facilities or service to any parcel created in violation of this title.

17.72.140 Reconsideration/revocation of approvals, permits and licenses.

Notwithstanding the procedures outlined in this Chapter, an approved development application, permit or license may be reconsidered and revoked by the Zoning Administrator, the Planning Commission, the Board of Adjustment or Board of County Commissioners in accordance with the procedures set forth in Section 17.72.150 if it is determined that the application, decision, permit or license was based on materially inaccurate or incomplete information.

17.72.150 Revocation procedures.

A. Duties of the Zoning Administrator. If the Zoning Administrator determines, based on inspection by county staff, that there exists reasonable grounds for revocation of a development permit or license authorized by this title, the Zoning Administrator shall set a public hearing before the approving body.

B. Notice and Public Hearing. At least fourteen days notice of a proceeding to reconsider or revoke the development permit or license shall be given to the applicant.

C. Required Findings. The approving body may revoke the development approval, permit or license upon making one or more of the following findings:

1. That the development permit was issued on the basis of erroneous or misleading information or misrepresentation provided by the applicant;

2. That the terms or conditions of approval of the permit relating to establishment or operation of the use, building or structure have been violated or that other laws or regulations of the county applicable to the development have been violated.

D. Decision and Notice. Within ten days of the conclusion of the hearing, the approving body shall render a decision and shall notify the holder of the permit or license of the decision and any other person who has filed a written request for such notice.

E. Effect. A decision to revoke a development permit or license shall become final five days after the date notice of the decision was given. After the effective date, all activities pursuant to such permit shall be deemed in violation of this title. (Ord. 158 § 1 (part), 1998).

17.72.160 Appeal of administrative citation.

A. Grounds. Any person receiving an administrative citation may appeal the citation to the Hearing Officer. Only the following issues may be appealed:

1. The person charged in the administrative citation as the Responsible Person is not the Responsible Person as defined by this Chapter.

2. The condition described as a zoning violation in the administrative citation is not a zoning violation as defined by this Chapter or other zoning ordinances.

3. The method required by the administrative citation to abate the zoning violation is inappropriate or not the most cost-effective method of effectively correcting or abating the zoning violation.

4. The time period given to abate the zoning violation in the administrative citation is unreasonable.

5. The Enforcement Officer refused to approve a corrective action that met the requirements of the administrative citation or County ordinances.

6. The Responsible Person claims that the requirements of the administrative citation violate his/her constitutional rights.

B. Filing. The person desiring to appeal the administrative citation must file a Notice of Appeal at the Iron County Building and Zoning Department or Sheriff’s Department within 30 days of being served in person or by mail with the administrative citation.

1. The Notice of Appeal shall clearly and concisely set forth all the reasons for the appeal. The Hearing Officer shall examine the Notice of Appeal to determine whether a valid appeal has been stated. If the appellant has not stated a valid cause for appeal as set forth in Section 17.72.160A, or if the appellant has failed to show by a preponderance of the evidence that he/she has an appealable issue, the appeal shall be denied and no hearing shall be held.

2. If the appellant has not shown due diligence and/or substantial progress in abating the zoning violation or has made no attempt to correct the zoning violation, the filing of an appeal will not stop the accrual of the fines.

3. The filing of an appeal will not prevent the Enforcement Officer from responding to the property on reports of new zoning violations.

C. Hearing. The hearing shall be informal and proceed according to rules and procedures established by the Hearing Officer. The appellant may, but is not required to, bring an attorney or other representative to assist him or her. The appellant and the Enforcement Officer may each call witnesses at the hearing. The Hearing Officer may, with or without the parties present, visit the site of the alleged zoning violation. If the Hearing Officer allows one party to be present at the site visit, the Hearing Officer must allow the other party to be present. The Hearing Officer shall schedule the hearing within thirty (30) days of when the Notice of Appeal is filed with the County. The County Attorney, or his or her designee, shall be present for the hearing and act as legal adviser for the Hearing Officer.

D. Burden of Proof. In appellant’s Notice of Appeal, the appellant shall have the initial burden of proof to demonstrate by a preponderance of the evidence that he/she has stated a legitimate ground for appeal as set forth in Section 17.72.160A. If the appellant has stated a legitimate ground for appeal and timely filed his/her appeal, the burden then shifts to the County to show by a preponderance of the evidence that the action taken was appropriate.

E. Authority of Hearing Officer. The Hearing Officer shall have authority to affirm or vacate the administrative citation or to modify or waive specific provisions of the citation. If the appellant fails to attend the hearing, the Hearing Officer shall affirm the citation. The Hearing Officer shall not vacate the citation unless he/she finds that the County has not met its burden of proof. The Hearing Officer shall modify the administrative citation if he/she finds that a zoning violation exists, but that one or more of the requirements of the administrative citation is improper or inappropriate. A requirement is improper if it is contrary to this Chapter. A requirement is inappropriate if the Hearing Officer finds that there is a better means of resolving the problem or that the proposed solution is inappropriate given the nature or severity of the problem. When determining whether to waive or modify a requirement of the administrative citation, the Hearing Officer may also consider:

1. Whether the appellant responded to the Enforcement Officer’s attempts to contact the appellant and cooperated with efforts to correct the zoning violation;

2. Whether the appellant has shown due diligence and/or substantial progress in correcting or abating the zoning violation;

3. The financial ability of the appellant and the amount, if any, that the appellant has benefitted financially by maintaining the zoning violation; and

4. Any other relevant factor.

F. Factors to Be Considered When Determining Appropriate Fine Amount. When the Hearing Officer is assessing a monetary penalty pursuant to Section 17.72.100, the Hearing Officer shall consider the following factors:

1. The Responsible Person’s financial circumstances, as verified to the Enforcement Officer by the Responsible Person;

2. The Responsible Person’s physical ability to correct the zoning violation as verified by either the Enforcement Officer or the Responsible Person; and

3. The Responsible Person’s mental ability to comprehend the scope of the zoning violation and mental ability to abate the zoning violation.

G. Order. The Hearing Officer shall issue a written Order to the appellant and the County notifying them of his/her decision. The Order shall include the Hearing Officer’ findings of fact and ultimate decision. If the Hearing Officer modifies or waives provisions of the administrative citation, the Order shall specify which portions are modified and how they are modified. The Hearing Officer shall mail a copy of the Order to the appellant and the County within five (5) working days of the close of the hearing.

17.72.170 Severability clause.

Should a court of competent jurisdiction hold any portion of this Chapter or the application of any provision of this Chapter to any person or circumstance invalid, then the invalid portion or application shall be severed and the remainder of this Chapter shall remain in effect without the invalid portion or application.

17.72.180 Enforcement of zoning violations found elsewhere in County Ordinance.

Any activity or condition that is defined as a zoning violation anywhere in Iron County ordinances shall be abated in accordance with the procedures set forth in this Chapter.

Chapter 17.76

APPEALS

Sections:

17.76.010 Administrative decisions— Zoning Administrator.

17.76.020 Board of Adjustment decisions.

17.76.030 Planning Commission decisions.

17.76.040 Board of County Commissioners’ decisions.

17.76.050 Judicial review.

17.76.060 Appeal of administrative citation issued pursuant to Chapters 8.20 and 17.72.

17.76.010 Administrative Decisions—Zoning Administrator .

A. Except as provided in this Chapter or County ordinance, decisions of the Zoning Administrator in applying the provisions of this title, or decisions of the Enforcement Officer in applying Chapters 8.20 and 17.72 by enforcing County zoning and nuisance ordinances, may be appealed to the Board of Adjustment by filing an application and all necessary materials within thirty days of the date of the Zoning Administrator ‘s decision.

B. Following receipt by the Board of Adjustment of an appeal of a decision by the Zoning Administrator, the Board of Adjustment shall give notice and schedule a public hearing. Following the hearing and the submission of all necessary and relevant information, the Board of Adjustment shall render a decision on the appeal.

C. The Board of Adjustment shall provide a copy of the board’s decision by mail to all parties to the appeal within fourteen days of the Board of Adjustment’s decision. (Ord. 158 § 1 (part), 1998)

17.76.020 Board of Adjustment decisions.

Any person aggrieved by a decision of the Board of Adjustment may, within thirty days after the decision is made, present to the district court a petition specifying the nature of the appeal and the grounds on which they are adversely affected. (Ord. 158 § 1 (part), 1998)

17.76.030 Planning Commission decisions.

Any person aggrieved by a decision of the Planning Commission may file an appeal with the appellate body within thirty days of the date of the decision specifying the nature of the appeal. All final decisions of the Planning Commission concerning conditional use applications shall be appealed to the Board of County Commissioners. (Ord. 158 § 1 (part), 1998)

17.76.040 Board of County Commissioners’ decisions.

Any person aggrieved by a decision of the Board of County Commissioners may file an appeal to district court within thirty days of the date of the decision pursuant to the provisions of the County Land Management and Development Act, Utah Code. (Ord. 158 § 1 (part), 1998)

17.76.050 Judicial review.

No petition for judicial review may be filed unless and until the applicant has exhausted all manner of relief and processes available with Iron County as are provided by this title. (Ord. 158 § 1 (part), 1998.

17.76.060 Appeal of administrative citation issued pursuant to Chapters 8.20 and 17.72.

An appeal of an administrative citation issued pursuant to Chapters 8.20 and 17.72 by the Zoning Administrator, Building Inspector, or County Sheriff shall be conducted pursuant to the provisions of Chapters 8.20.200 and 17.72.160.

SECTION 2 – SEVERABILITY

If any section, subsection, sentence, clause, phrase, or portion of this ordinance is, for any reason, held invalid or unconstitutional by any court of competent jurisdiction, such portions shall be deemed a separate, distinct, and independent provision, and such holding shall not affect the validity of the remaining portions of this ordinance.

SECTION 3 – AMENDMENT OF CONFLICTING ORDINANCES

To the extent that any ordinances, resolutions, or policies of Iron County conflict with the provisions of this ordinance, they are hereby amended to comply with the provisions hereof.

SECTION 4 – EFFECTIVE DATE

Because this ordinance is necessary for the preservation of the health and safety of Iron County inhabitants, this ordinance shall take effect immediately upon its passage by a majority vote of the Iron County Board of County Commissioners and upon notice and publication as required by Utah Code Annotated § 17-53-208(6).

PASSED AND ADOPTED BY THE BOARD OF COUNTY COMMISSIONERS OF IRON COUNTY, UTAH this 9^th day of July, 2007.

BOARD OF COUNTY COMMISSIONERS

IRON COUNTY, UTAH

By:

Wayne A. Smith, Chairman

ATTEST:

David I. Yardley, County Clerk

VOTING:

Wayne Smith Aye

Lois Bulloch Aye

Alma Adams Aye

CHAIR PRO TEM APPOINTMENT :

Commissioner Wayne Smith was excused from the meeting to attend a funeral. Alma Adams made a motion to appoint Lois Bulloch as Chair Pro Tem during the absence of Wayne Smith. Second by Lois Bulloch.

ORDINANCE 2007-8 IRON COUNTY NUISANCE ORDINANCE ENFORCEMENT AMENDMENT:

Alma Adams made a motion to open a public hearing to receive comments regarding an amendment to the nuisance ordinance. Second by Lois Bulloch. Voting: Wayne Smith, Aye; Lois Bulloch, Aye; Alma Adams, Aye.

Kevin Thurman explained that the purpose of the current ordinance is to clarify procedure and to incorporate recommendations regarding hearings by the Board of Adjustments. It also parallels the enforcement of the previous ordinance which governs enforcement of the Zoning ordinances. It is written to parallel State Code and he recommended the Commission adopt the ordinance as written.

After all public comments were received, Alma Adams made a motion to close the hearing and to adopt Ordinance 2007-8 as recommended. Second by Lois Bulloch.

IRON COUNTY

ORDINANCE NO. 2007-8

AN ORDINANCE OF IRON COUNTY, UTAH AMENDING CHAPTER 8.20 – NUISANCES, TITLE 8 – HEALTH AND SAFETY, OF THE IRON COUNTY CODE RELATING TO THE ABATEMENT OF NUISANCES WITHIN THE BOUNDARIES OF IRON COUNTY, UTAH; AMENDING DEFINITIONS PERTAINING TO NUISANCES; AMENDING PROVISIONS RELATING TO THE ABATEMENT OF NUISANCES; AMENDING ENFORCEMENT PROVISIONS PERTAINING TO NUISANCES; AND PROVIDING AN EFFECTIVE DATE

WHEREAS, the maintenance of nuisances in the unincorporated areas of Iron County, Utah is pervasive threat to the health, safety, and general welfare of the inhabitants of Iron County;

WHEREAS, Iron County desires to promote the health, safety, and general welfare of Iron County residents;

WHEREAS, the previous Title 8, Chapter 8.20 contained some ambiguities that affected the abilities of Iron County staff to properly, efficiently, and expeditiously abate nuisances in Iron County;

WHEREAS, the following provisions provide clarifications and additional provisions to aid in the proper, efficient, and expeditious abatement of nuisances in Iron County, which nuisances are a pervasive threat to the health, safety, and general welfare of Iron County inhabitants;

NOW, THEREFORE, BE IT ORDAINED by the County Legislative Body of Iron County, Utah, that Title 8, Chapter 8.20 is hereby amended with the following provisions contained in Section 1 – Substantive Provisions.

SECTION 1 – SUBSTANTIVE PROVISIONS

CHAPTER 8.20

NUISANCES

Sections:

8.20.010 Definitions.

8.20.020 Nuisance – Definition.

8.20.030 Illustrative Enumeration.

8.20.040 Vehicles.

8.20.050 Noxious Weeds.

8.20.060 Noises.

8.20.070 Exemptions.

8.20.080 Responsibility for Nuisances.

8.20.090 Enforcement Officer(s).

8.20.100 Finding of Nuisance.

8.20.110 Notice to Abate Nuisance.

8.20.120 Voluntary Correction Agreement.

8.20.130 Violation – Criminal Citation/Action.

8.20.140 Violation – Administrative Citation.

8.20.150 Abatement by County.

8.20.160 Monetary Fines.

8.20.170 Civil Actions.

8.20.180 Abatement by Eviction.

8.20.190 Non-exclusive Remedies.

8.20.200 Appeals.

8.20.210 Severability Clause.

8.20.220 Enforcement of nuisances found elsewhere in County Ordinance.

8.20.010 Definitions.

As used in this Chapter:

“Abatement” means the repair, replacement, removal, destruction, correction, or other remedy of a condition which constitutes a nuisance by such means, in such a manner, and to such an extent as the Enforcement Officer determines is necessary in the interest of the general health, safety, and welfare of Iron County inhabitants.

“Agricultural Operations” means any activity, facility, or operation for the production for commercial purposes of crops, livestock, poultry, livestock products, or poultry products.

“Completion Date” means the date by which the Responsible Person must abate a nuisance. The Completion Date is set by the Enforcement Officer in the Notice to Abate Nuisance, Voluntary Correction Agreement, administrative citation, or criminal citation, or in an order by a Hearing Officer or judge.

“Enforcement Officer” means the Zoning Officer, Building Inspector, Sheriff, County Attorney, or some other duly designated officer of the County that is authorized as the agent charged with the enforcement of the provisions of this Chapter. In the case of a violation of Section 8.20.050, the Enforcement Officer shall be the County Weed Control Board or designee.

“Hearing Officer” means the person(s) designated to hear appeals pursuant to this ordinance. The Hearing Officer shall be the County Board of Adjustment or some designee named by the County Commission. The designee need not be a County employee. The County Commission may also appoint a committee to function as the Hearing Officer.

“Junk” means any or all