City of Moab

Request for Statements of Qualifications for the Services of a

Land Use Hearing Officer

The City of Moab seeks the services of a qualified person to act as the City's Appeals Authority. The City adopted an ordinance providing for the use of a hearing officer to hear and decide certain land-use related appeals, which was codified as Moab Municipal Code, §17.72.100-190 (copy attached).

Sealed statements must be received, via mail or in person, prior to 3:00 pm Friday, June 29, 2018. Statements shall be submitted to:

City of Moab

Attention: Rachel Stenta, City Recorder/Assistant City Manager

217 East Center Street

Moab, Utah 84532

rstenta@PROTECTED

Submissions for this position must include the following information:

●      The applicant's name, address, telephone number, and email address.

●      A résumé which describes in detail the applicant’s educational background, knowledge, and experience with respect to Utah planning, zoning, and land-use law, as well as knowledge and experience pertaining to principles of administrative law. 

●      A description of the applicant’s professional experience in zoning, land-use, planning, law, or a related field.

●      The date that the applicant would be available to start work.

●      Confirmation that the applicant is available on an as-needed basis with adequate time for preparation and scheduling.

●      Three professional references with names, addresses, telephone numbers, and email addresses.

●      A writing sample representative of the applicant’s work.

●      Fee schedule. Please consider alternative billing arrangements, i.e., a flat fee, a fixed fee for each appeal, or other arrangement. 

Ideally, statements would demonstrate: a) knowledge of the substantive legal areas; b) an ability to review and analyze relevant ordinances, documents, testimony, and agreements; c) an ability to conduct hearings and write rulings; and d) an appropriate demeanor and a commitment to due process.

Additional Information

Currently the City does not contract with anyone for this position. Appeals of land use decisions by City staff are infrequent. However, the City has seen an increase in land development activity, with an expected increase in appeals in the future. 

The appeal process is intended to provide a speedy, efficient, and inexpensive mechanism to resolve land-use disputes. It is expected that appeals could range from routine questions of ordinance interpretation that are appropriate for expedited or summary adjudication, to complex appeals involving an evidentiary hearing and legal argument. The hearing officer will decide appeals involving: commercial site plans; master planned developments; zoning code interpretations; non-conforming uses; variances; flood plain regulations; hillside development regulations; planned unit developments; subdivisions; accessory uses or structures and secondary dwelling units; and others.

The City will provide the necessary clerical support and meeting space for all appeals. City staff will provide a staff report and record of materials pertaining to the appeal. The hearing officer will be expected to screen all appeals to exclude any conflicts of interest between the role of the hearing officer and any outside employment, business, or personal relationships with the appellant or any other parties. The hearing officer will be required to appear as needed; this would typically be based on a schedule mutually agreeable to the parties. 

The hearing officer will be an independent contractor, and not entitled to any rights or benefits applicable to City employees. Any contract awarded by the City shall be for a term not to exceed one year, and terminable by either party upon not less than 30 days written notice. The contract may be renewed for successive terms upon written agreement by both parties.

Relevant Moab Municipal Code Sections

17.72.100. Matrix of advisory, land use authority, and appeal bodies.

A. The appeal authority is authorized to hear and decide the following appeals, which are designated by the term AA in the column labeled “Appeal Body.”  As used in this matrix, PC means planning commission; CC means city council; DC means district court; BC means the boundary commission; and NA means not applicable.

B.    In the event of any conflict between the designation of the applicable appeal authority in this section and the terms of any other provision of the Moab Municipal Code, the terms of this section shall control.

C.    Where the appeal authority is not designated as the appellate body, review shall be obtained by filing an action in the district court.  (Ord. 17-23 (part), 2017)

Editor’s note—Ord. No. 10-06, adopted November 9, 2010, in effect repealed the former §§ 17.72.100--17.72.240, and enacted new §§ 17.72.100--17.72.240 as set out herein.  The former §§ 17.72.100--17.72.240 pertained to the board of adjustments and derived from prior code §§ 27-25-9--27-25-21.

Editor’s note—Ord. No. 17-23, adopted July 25, 2017, repealed the former §§ 17.72.100--17.72.170 and enacted new §§ 17.72.100--17.72.170 as set out herein.  The former §§ 17.72.100--17.72.170 pertained to appeals and derived from Ord. No. 10-06.

17.72.110           Reserved.

Editor’s note—See editor’s notes at Section 17.72.100.

17.72.120          Hearing officer to serve as appeal authority.

A.    The appeal authority shall be comprised of a single hearing officer appointed by the mayor with the advice and consent of the city council.  The person appointed to serve as the hearing officer shall be a person with:  (1) knowledge of the Moab Municipal Code and zoning matters, generally; and (2) knowledge of adjudicatory hearing procedures and the due process rights of land use applicants and other hearing participants.

B.    The hearing officer shall be paid for services performed pursuant to a contract and at such rates as shall be approved by the city council.  The hearing officer shall serve for a term of four years from the date of appointment.  (Ord. 17-23 (part), 2017)

Editor’s note—See editor’s notes at Section 17.72.100.

17.72.130          Jurisdiction.

A.    As a condition precedent to obtaining judicial review, each adversely affected party shall challenge the decision of the applicable land use authority by filing an appeal under this chapter.  The appeal authority shall have jurisdiction to hear and decide only the following:

1.    Appeals of decisions interpreting this title (zoning), Title 16 (subdivisions), and Chapter 15.40 (floodplain matters) as shown in the appeal matrix in Section 17.72.100.

B.    In any appeal where a party claims that the land use authority reached a decision in violation of state or federal laws, as opposed to provisions of the Moab Municipal Code, the appeal authority shall not have jurisdiction to decide the matter, and review shall be obtained before the district court.  (Ord. 17-23 (part), 2017)

Editor’s note—See editor’s notes at Section 17.72.100.

17.72.140          Notice of appeal and appeal fee.

A.    Any person adversely affected by a decision which is within the jurisdiction of the appeal authority may appeal under this chapter.  An appeal shall be commenced by filing a written notice of appeal and paying the applicable fee, as set by the council from time to time.  The city must receive the notice of appeal and appeal fee no later than thirty calendar days from the date of the decision by the city which is the subject of the appeal.

B.    An untimely appeal shall be dismissed with prejudice.  (Ord. 17-23 (part), 2017)

Editor’s note—See editor’s notes at Section 17.72.100.

17.72.150          Conduct of hearings.

A.    All hearing shall be conducted in a quasi-judicial manner and be recorded.  The hearing officer shall conduct and control the hearing, administer oaths, and receive all evidence.  Any interested party may offer evidence in the form of live testimony or by providing documentary or other forms of evidence.  The Utah Rules of Evidence shall not apply; however, the hearing officer has discretion to exclude from consideration any evidence which is deemed to be immaterial, irrelevant, or unreliable.

Additionally, the hearing officer has discretion to weigh the credibility and demeanor of witnesses who provide testimony where the appeal centers on disputed issues of fact.

B.    Hearings shall be scheduled with reasonable promptness, depending on the scope of the issues subject to review.  The hearing officer may enter pre-hearing orders with respect to discovery, disclosure of witnesses and exhibits, or the like.

C.    Any interested party may appear individually or be represented by an attorney.

D.    The appealing party has the burden of proof to show that the decision or order of the city was unlawful, arbitrary, or capricious.

E.    All hearings shall be open to the public and notice of same shall be provided as otherwise provided for other public meeting of city bodies.

F.    The decision of the appeal authority shall be in writing, and shall contain findings of fact and conclusions of law.  The appeal authority may affirm the decision, in whole or in part; reverse the decision, in whole or in part; or modify the decision as is warranted by the law and the evidence.  (Ord. 17-23 (part), 2017)

Editor’s note—See editor’s notes at Section 17.72.100.

17.72.160          Stay of decision.

The filing of an appeal under this chapter does not stay the decision that is the subject of the appeal.  To obtain a stay the appealing party must separately file a written request for stay with the appeal authority, which must show that the appealing party will suffer irreparable harm if the stay is not granted.  The request for stay should be accompanied by the evidence, documents, or other information the appellant relies upon in support of its request for stay.  (Ord. 17-23 (part), 2017)

Editor’s note—See editor’s notes at Section 17.72.100.

17.72.170           Exhaustion of administrative remedies--District court review.

A.    If a matter is within the jurisdiction of the appeal authority, the interested party must exhaust all of its administrative remedies by seeking review and a decision by the appeal authority prior to seeking review by the district court.  Every theory of relief predicated upon the interpretation of the Moab Municipal Code must first have been presented to the appeal authority to be preserved for review by the district court.

B.    A party wishing to appeal the final decision of the appeal authority must commence an action in the district court no later than thirty calendar days from the date of the final written decision by the appeal authority.  A judicial action which is not commenced within that time shall be dismissed with prejudice.

C.    Review by the district court shall be based solely on the record before the appeal authority.  The appeal authority shall promptly transmit the record of its proceedings, including the transcript of the recorded hearing, all exhibits and other evidence, and all orders entered in the proceeding.  The cost of preparing the transcript shall be paid by the appellant prior to transmittal of the record to the district court.

D.    In any district court proceeding under this chapter the appealing party has the burden of proof to show that the decision of the appeal authority was arbitrary, capricious, or illegal.  (Ord. 17-23 (part), 2017)

Editor’s note—See editor’s notes at Section 17.72.100.

17.72.180          Variance.

Any person or entity desiring a waiver or modification of the requirements of the zoning ordinance as applied to a parcel of property that he/she owns, leases, or in which he/she holds some other beneficial interest may apply to the appeal authority for a variance from the terms of the zoning ordinance.

(Ord. No. 10-06, 11-9-10)

Editor’s note—See editor’s note at Section 17.72.100.

17.72.190          Standards.

A.    The appeal authority may grant a variance only if each of the following conditions is met:

1.    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;

2.    There are special circumstances attached to the property that do not generally apply to other properties in the same district;

3.    Granting the variance is essential to the enjoyment of a substantial property right possessed by other property in the same district;

4.    The variance will not substantially affect the general plan and will not be contrary to the public interest; and

5.    The spirit of the zoning ordinance is observed and substantial justice done.

B.    In determining whether or not enforcement of the zoning ordinance would cause unreasonable hardship under subsection A of this section, the appeal authority may not find an unreasonable hardship unless the alleged hardship:

1.    Is located on or associated with the property for which the variance is sought; and

2.    Comes from circumstances peculiar to the property, not from conditions that are general to the neighborhood.

C.    In determining whether or not enforcement of the zoning ordinance would cause unreasonable hardship under subsection A of this section, the appeal authority 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 A of this section, the appeal authority may find that special circumstances exist only if the special circumstances:

1.    Relate to the hardship complained of; and

2.    Deprive the property of privileges granted to other properties in the same district.

E.    The applicant shall bear the burden of proving all of the conditions justifying a variance have been met.

F.    Variances run with the land.

G.    The appeal authority may not grant use variances.

H.    In granting a variance, the appeal authority may impose additional requirements on the applicant that will:

1.    Mitigate any harmful affects of the variance; or

2.    Serve the purpose of the standard or requirement that is waived or modified.

(Ord. No. 10-06, 11-9-10)

Editor’s note—See editor’s note at Section 17.72.100.