HomeMy Public PortalAboutORD-CC-2010-06ORDINANCE #2010-06
AN ORDINANCE AMENDING THE CITY OF MOAB MUNICIPAL CODE, CHAPTER
17.72, ADMINISTRATION AND ENFORCEMENT AND ESPECIALLY CHAPTERS
17.72.100 THROUGH 17.72.240, THAT DEALS WITH THE BOARD OF
ADJUSTMENT, TO ALIGN THE MOAB MUNICIPAL CODE WITH THE UTAH STATE
CODE
WHEREAS, the Moab City Council ("Council') adopted the Moab Municipal Code
("Code") and especially Title 17.00.00, also known as "The Zoning Ordinance of
Moab City, Utah" in an effort to encourage and facilitate orderly growth and
development in the City as well as to promote a more attractive and wholesome
community environment; and,
WHEREAS, from time to time Council has found it necessary to amend said Zoning
Ordinance to support the elements of the General Plan, enforce the provisions of the
Land Use Code, and align the Moab Municipal Code with the Utah State Code; and,
WHEREAS, it has come to the attention of the City of Moab that an amendment to
Chapter 17.72, Board of Adjustments, is necessary to align the Municipal Code
with the Utah State Code; and,
WHEREAS, the City of Moab Planning Commission ("Commission") in a public
hearing held on August 25, 2010, met to determine the merits of this Code
amendment; and
WHEREAS, the Commission found that the proposed changes would be useful
in aiding Planning Staff in the day to day administration of the Code by providing
a clear appeals process; and,
WHEREAS the Commission also found that the Appeal Authority would also
benefit from the clarity of the amendments in understanding what was expected
when reviewing decisions made by city staff and the planning commission; and,
WHEREAS, Council reviewed Ordinance #2010-06 in a regularly scheduled
meeting held on November 9, 2010, to hear and decide the merits of the
proposed change to Chapter 17.09.660, Site Plan -Required, of the Moab
Municipal Code; and,
WHEREAS, Council found the changes to be in the best interests of the City of
Moab.
NOW, THEREFORE, the Moab City Council hereby amends Code Chapters
17.72.100 through 17.72.240, as it currently reads to read:
1
City of Moab Ordinance #06-2010
Approved November 9, 2010
Chapter 17.72
APPEAL AUTHORITY
17.72.100 Appeal Authority -Designation
17.72.120 Appointment -Term
17.72.130 Meetings and Records
17.72.140 Powers and Duties
17.72.150 Appeals
17.71.160 Decision on Appeals
17.72.170 District Court Review
17.72.180 Variance
17.72.190 Standards
17.72.200 Building Permits
17.72.210 Notice to Council of Variance or Building Permit Application
17.72.220 Zone Boundary Adjustment
17.72.230 Appeal of Geologic Hazard Decisions --Panel of Experts
17.72.240 District Court Review of Appeal Authority Decision.
17.72.100 Appeal Authority --Designation.
Application/ Action
Advisory Body
Land Use Authority
Appeal Body
Required Public Hearing
Zone Change
Planning Commission
City Council
District Court
Yes PC
Land Use Code Amend
Planning Commission
City Council
District Court
Yes PC
General Plan/Amend
Planning Commission
City Council
District Court (DC)
Yes PC
Annexation
Planning Commission
City Council
Bound Commission/DC
Yes CC
Pre -Annex Agreement
Planning Commission
City Council
District Court
No
Conditional Use
Planning Commission
AA/DC
No
Site Plans
Planning Commission
AA/DC
No
Land Use/Zone Interpret
Zoning Administrator
AA/DC
No
Non -Conforming Use
Zoning Administrator
AA/DC
No
Non -Complying Building
Zoning Administrator
AA/DC
No
Variances
Zoning Administrator
AA
District Court
Yes AA
Flood Plain
Zoning Administrator
AA
District Court
Yes AA
Hillside Ordinance
Planning Commission
City Council
District Court
No
PUD"
Planning Commission
City Council
District Court
Yes PC
Hillside Ordinance
Planning Commission
City Council
AA
No
Second Dwelling
Zoning Administrator
Planning Commission
AA/DC
No
Bed and Breakfast
Zoning Administrator
Planning Commission
AA/DC
No
Site Plan
Planning Commission
AA
No
" Planned Unit Development.
17.72.120 Appointment of Term.
A. The Appeal Authority shall be appointed by the Mayor, with the advice and consent
of the Council, at the beginning of the calendar year for a term of five (5) years.
1. A five -member board is utilized as the Appeal Authority. Each member
will be appointed by the Mayor with governing body approval. The terms of the
members of the first board so appointed shall be such that the term of one
member shall expire each year.
a. In compliance with UCA Title section 10-9a-701,3(b), one (1)
member, but not more than one (1) member of the city planning commission shall
be a member of the Appeal Authority board. The planning commission member
2
City of Moab Ordinance #06.2010
Approved November 9. 2010
shall recuse h, , ierself if the planning commission served as the land use
authority for the matter that is being appealed.
b. Members must attend a minimum of seventy-five (75) percent
of all meetings held during the course of a calendar year in order to remain a
member. This annual determination of attendance shall be conducted by
planning department staff and forwarded to the chairperson of the Appeal
Authority, the city manager, and mayor and city council.
c. Any member may be removed for cause by the governing body
upon written charges and after a public hearing, if such public hearing is
requested.
B. The Mayor, with the advice and consent of the City Council, shall fill any vacancy and
the person appointed shall serve for the unexpired term.
17.72.130 Records and Conduct of Hearings.
The Appeal Authority board shall organize and elect a chair and adopt rules in
accordance with the provisions of this title. Meetings of the board shall be held at the call
of the chair and at such other times as the board may determine. The chair, or the acting
chair, shall conduct all meetings and may administer oaths and compel the attendance
of witnesses. All meetings of the board are open to the public. The appeal authority shall
keep minutes of its proceedings showing the decision upon each question and indicate
such facts, and shall keep records of its examinations and other official acts, all of which
shall be filed immediately in the office of the Planning and Zoning department and shall
be a public record. Robert's Rules of Order shall be followed in the conduct of meetings
where applicable.
17.72.140 Powers and Duties. The powers and duties of the Appeal Authority shall
include:
A. Hear appeals on decisions applying to the zoning ordinances of Moab City; and
B. Hear and decide variances from the terms of the Land Use Code.
17.72.150 Appeals.
A. Review
I. The applicant or any other person or entity adversely affected by a decision
administering or interpreting a zoning ordinance may appeal that decision applying
the zoning ordinance by alleging that there is error in any order, requirement,
decision, or determination made by an official in the administration or interpretation
of the zoning ordinance.
2. Any person, including any officer, department or board of Moab City affected by a
decision administering or interpreting a zoning ordinance or affected by the grant or
refusal of a building permit or by any other decisions of the Land Use Authority in the
administration or interpretation of the zoning ordinance may appeal such decision to
the Appeal Authority. An appeal must be made within thirty (30) days from the date
of such decision by filing with the City Recorder a written notice of appeal specifying
the grounds thereof. When an appeal is taken from a decision of the Land Use
Authority, the City Recorder shall forthwith transmit to the Appeal Authority all
City of Moab Ordinance 4106-2010
Approved November 9.2010
papers, if any, cor• .uting the record upon which the action appealed from was
taken.
3. An appeal filed in accordance with this section stays all proceedings in the appeal
action, unless the officer from whom the appeal is taken certifies to the Appeal
Authority that by reason of facts stated in the certificate the stay would in his/her
opinion cause imminent peril to life or property. In such cases, proceedings shall not
be stayed otherwise than by restraining order which may be granted by the Appeal
Authority or by the district court on application and notice and on due cause shown.
4. The Appeal Authority shall establish a date and time for hearing any appeal within
a period not to exceed fifteen (15) days of the date of filing such appeal with the City
Recorder. Once the date has been selected, public notice shall be given in
accordance with the Utah Open and Public Meetings Act, as well as notice to the
parties in interest according to the following regulations:
a. A time period of not less than twenty four (24) hours shall be allowed
for noticing the public meeting.
b. The notice shall include the meeting agenda, date, time, and place.
c. Notice may be satisfied by posting written notice:
• At the principal offices of the City of Moab;
• In the building where the meeting will be held,
• On the Utah Public Notice Website;
• In at least one paper of general circulation within the
geographic jurisdiction of the city;
• To a local media correspondent;
• Electronically posting on the city's website.
In addition, the Appeals Authority shall give notice to the City Council as described in
section 17.72.190 below.
5. Proceedings and hearings before the Appeal Authority shall be pursuant to rules
adopted by the City and in conformance with general principles of due process. Any
party in interest may appear at such hearing in person, by agent, or by an attorney of
his/her choice.
6. The person or entity making the appeal has the burden of proving that an error
has been made.
B. Standards
1. Only decisions applying to the zoning ordinance may be appealed to the Appeal
Authority.
2. A person may not appeal, and the Appeal Authority may not consider, any zoning
ordinance amendments.
3. The City Council shall hear and decide appeals from Planning Commission
decisions regarding conditional use permits.
C, Appeals may not be used to waive or modify the terms or requirements of the zoning
ordinance.
City of Moab Onlinance #06- 2010
Approved November 9, 2010
17.72.160 Decision on Appeals_ In exercising the above -mentioned powers the Appeal
Authority may affirm, wholly or partly, or may modify the order, requirement, decision
or determination of a Land Use Authority and may apply reasonable conditions to
satisfy the Municipal Code.
17.72.170 District Court Review.
1. Any person adversely affected by any decision of the Appeal Authority may
petition the district court for a review of the decision.
2. In the petition, the plaintiff may only allege that the Appeal Authority's decision
was arbitrary, capricious, or illegal.
3. (a) The petition is barred unless it is filed within 30 days after the Appeal
Authority's decision is final.
(b) (i) The time under 3.(a) to file a petition is tolled from the date a property owner
files a request for arbitration of a constitutional taking issue with the private property
ombudsman under Utah Code Annotated 63-34-13 until 30 days after:
(A) the arbitrator issues a final award; or
(B) the private property ombudsman issues a written statement under Utah
Code Annotated 63-34-13(4)(b) declining to arbitrate or to appoint an
arbitrator.
(ii) A tolling under Subsection 3.(b)(i) operates only as to the specific constitutional
taking issues that are the subject of the request for arbitration filed with the private
property ombudsman by a property owner.
(iii) A request for arbitration filed with the private property ombudsman after the time
under Subsection 3.(a) to file a petition has expired does not affect the time to file a
petition.
4. (a) The Appeal Authority shall transmit to the district court the record of its
proceedings including its minutes, findings, orders and, if available, a true and
correct transcript of its proceedings.
(b) If the proceeding was taped, a transcript of that tape recording is a true and
correct transcript for purposes of this subsection.
5. (a) (i) If there is a record, the district court's review is limited to the record
provided by the Appeal Authority.
(ii) The court may not accept or consider any evidence outside the Appeal
Authority record unless that evidence was offered to the Appeal Authority and the
court determines that it was improperly excluded by the Appeal Authority.
(b) If there is no record, the court may call witnesses and take evidence.
6. The court shall affirm the decision of the Appeal Authority if the decision is
supported by substantial evidence in the record.
Moab City Ordinance 2010-06
Approved 2010
5
7. (a) The filing of a petition does not stay the decision of the Appeal Authority
(b) (i) Before filing a petition under this section or a request for mediation or
arbitration of a constitutional taking issue under Section 63-34-13 Utah Code
Annotated (1953 edition) , the aggrieved party may petition the Appeal Authority
to stay its decision.
(ii) Upon receipt of a petition to stay, the Appeal Authority may order its decision
stayed pending district court review if the Appeal Authority finds it to be in the
best interest of the City.
(iii) After a petition is filed under this section or a request for mediation or
arbitration of a constitutional taking issue is filed under Section 63-34-13 Utah
Code Annotated (1953 edition), the petitioner may seek an injunction from the
district court staying the Appeal Authority's decision.
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.
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, above, 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
Moab City Ordinance 2010-06
Approved , 2010
6
unreasonable hardship under subsection A, above, 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, above, 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.
17.72.200 Building Permits. The Building Official shall not issue any building permit for
any building, construction or repair of any building unless such fully conforms to all
zoning regulations or ordinances of this municipality in effect at the time of
application. No permit shall be issued for any building or structure or part thereof on
any land located between the mapped lines of any street as shown on any official
street map adopted by the governing body.
17.72.210 Notice to Council of Variance or Building Permit Application. Before any
application for a variance or building permit is heard by the Appeal Authority, the
Appeal Authority shall give the Moab City Council at least fifteen (15) days notice of
any hearing to consider the application.
17.72.220 Zone Boundary Adjustment. Where a zone boundary line divides a lot in a
single ownership at the time of the passage of this chapter, the Board may permit a
use authorized on either portion of such lot to extend not more than fifty feet (50') into
the other portion of the lot.
17.72.230 Appeal of Geologic Hazard Decisions --Panel of Experts.
(a) An applicant who has appealed a decision of the land use authority
administering or interpreting the municipality's geologic hazard ordinance may
request the municipality to assemble a panel of qualified experts to serve as the
appeal authority for purposes of determining the technical aspects of the appeal_
(b) If an applicant makes a request as described above, the municipality shall
assemble the panel described below consisting of, unless otherwise agreed by the
applicant and municipality:
(i) one expert designated by the municipality;
(ii) one expert designated by the applicant; and
(iii) one expert chosen jointly by the municipality's designated expert and the
Moab City Ordinance 2010.06
Approved ._ . , 2010
7
applicant's designated expert.
(c) A member of the panel assembled by the municipality under Subsection (2)(b)
may not be associated with the application that is the subject of the appeal.
(d) The applicant shall pay:
(i) 1/2 of the cost of the panel; and
(ii) the municipality's published appeal fee.
17.72.240 District Court Review of Appeal Authority Decision.
1. Any person adversely affected by any decision of the Appeal Authority may
petition the district court for a review of the decision.
2. In the petition, the plaintiff may only allege that the Appeal Authority's decision
was arbitrary, capricious, or illegal.
3. (a) The petition is barred unless it is filed within 30 days after the Appeal
Authority's decision is final.
(b) (i) The time under 3.(a) to file a petition is tolled from the date a property owner
files a request for arbitration of a constitutional taking issue with the private property
ombudsman under Section 63-34-13 Utah Code Annotated (1953 as amended) until
30 days after:
(A) the arbitrator issues a final award; or
(B) the private property ombudsman issues a written statement under Section
63-34-13(4)(b) Utah Code Annotated declining to arbitrate or to appoint an
arbitrator.
(ii) A tolling under Subsection 3(b)(1) operates only as to the specific constitutional
taking issues that are the subject of the request for arbitration filed with the private
property ombudsman by a property owner.
(iii) A request for arbitration filed with the private property ombudsman after the time
under Subsection 3(a) to file a petition has expired does not affect the time to file a
petition.
4. (a) The Appeal Authority shall transmit to the district court the record of its
proceedings including its minutes, findings, orders and, if available, a true and
correct transcript of its proceedings.
(b) If the proceeding was taped, a transcript of that tape recording is a true and
correct transcript for purposes of this subsection.
5. (a) (i) If there is a record, the district court's review is limited to the record
provided by the Appeal Authority.
(ii) The court may not accept or consider any evidence outside the Appeal Authority's
record unless that evidence was offered to the Appeal Authority and the court
determines that it was improperly excluded by the Appeal Authority.
(b) If there is no record, the court may call witnesses and take evidence.
Moab City Ordinance 2010 06
Approved _ _ , 2010
S
6. The court shall affirm the decision of the Appeal Authority if the decision is
supported by substantial evidence in the record.
7. (a) The filing of a petition does not stay the decision of the Appeal Authority.
(b) (i) Before filing a petition under this section or a request for mediation or
arbitration of a constitutional taking issue under Section 63-34-13 Utah Code
Annotated (1953 edition) , the aggrieved party may petition the Appeal Authority
to stay its decision.
(ii) Upon receipt of a petition to stay, the Appeal Authority may order its decision
stayed pending district court review if the Appeal Authority finds it to be in the
best interest of the City.
(iii) After a petition is filed under this section or a request for mediation or arbitration
of a constitutional taking issue is filed under Section 63-34-13 Utah Code
Annotated (1953 edition), the petitioner may seek an injunction from the district
court staying the Appeal Authority's decision.
AND THAT, Municipal Code Chapter 17.06, Definitions, and specifically 17.06.015,
Board of appeals, authority —Designated, is hereby amended and placed in
reserve by the removal and relocation of the matrix in section 17.72.shown below
to code section 17.72.220, Appeal Authority -Designation.
AND, FURTHERMORE, the following code sections that reference "Board of
Adjustment" or "Appeals board" are hereby amended to read "Appeal Authority' and
where the Board of Adjustment is designated by the initials "BoA", the letters shall be
changed to "AA":
15.40.190 Variance -Appeal board. Subsections A, B, C, D, E, and F
15.44.380 Right of appeal/variance. Subsections A, Al, A2,
16.08.020 Exceptions --Final plat. Subsection C
16.08.050 Vacating or changing a subdivision plat. Matrix
16.12.050 Preliminary plan approval.
17.06.020 Definitions. "Special exception" and "Variance"
17.09.220 Off-street parking and loading -Number of spaces. Subsection P
17.09.350 Motor vehicle access. Subsection A
17.09.530 Conditional use permits. Subsection E. Enforcement, paragraph 6.
17.09.620 Conditional use --Flood protection.
17.09.660 Site plan --Required. Subsection E.
17.12.020 Special exceptions --Generally.
17.12.110 Nonconforming lots of record.
17.15.030 Zone boundaries. Subsection D.
17.18.020 Use requirements. Subsection O.
Chapter 17.55, HILLSIDE DEVELOPMENTS, List of sections
17.55.100 Appeals to the board of adjustment.
17.65.080 MPD review procedures. Matrix and subsection A
17.69.50 Onee-year review (of secondary dwellings].
Chapter 17.70, BED AND BREAKFAST FACILITIES List of sections
17.70.065 Board of adjustment --Appeal authority.
Moab City Ordinance 2010 06
Approved . . 2010
9
17.80.130 Review procedures. Subsections H, I, J, and K
17.80.140 Appeal procedures. Subsections A, C, and E
SIGNED:
David L. Sakrison, Mayor
ATTEST:
Rachel Ellison, Recorder
Moab City Ordinance 2010.06
Approved, 2010
pAp arming department \2010\Ordinanceslord 2010.06 appeals aathonty does
10
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Proof of Publication
STATE OF UTAH,
County of Grand,
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55.
Zane W. Taylor, being first duly sworn accord-
ing to law, deposes and says: That he is the pubisher of
The Times -Independent, a weekly newspaper of general
circulation, published every Thursday at Moab, . Grand
County, State of Utah, and a designated agent of the Utah
Press Association; that the notice attached hereto and
which is a copy of a
City of Moab
Ordinances #2010-06, #2010-14, and #2010-21
which is made a part of this Affidavit of Publication, was
published in said newspaper for a period of 2 consecu-
tive issues, the first publication date having been made
October 14, 2010
; and the last on October 21, 2010
; and the said notice was published in each and every copy
of said newspaper during the period and time of publica-
tion, and that it was published in the newspaper proper
and not in a supplement thereof, and that said notice was
published on Utahlegals.com on the same day as the first
newspaper publication and the notice remained on Utah-
legals.com throughout the period and time of print pub-
lication.
tublisher
Subscribed and sworn before me this
Notary Public
Residing in Moab, Utah
My Commission Expires
SADIE WARNER
''11 Notary Public State of Utah
My Commission Empires on:
.'` November 7, 2013
Comm. Number 587356
ern. OF MOAB
ORDITONCE 0201046, #2010-
14, MI 0,21, #2010-23 and:
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THROL1C,H 17 72.240, THAT
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STATE OF UTAH,
County of Grand,
)
SS.
Zane W. Taylor, being first duly sworn accord-
ing to law, deposes and says: That he is the pubisher of
The Times -Independent, a weekly newspaper of general
circulation, published every Thursday at Moab, Grand
County, State of Utah, and a designated agent of the Utah
Press Association; that the notice attached hereto and
which is a copy of a
City of Moab
Ordinances
which is made a part of this Affidavit of Publication, was
published in said newspaper for a period of 1 consecu-
tive issues, the first publication date having been made
December 9, 2010
; and the last on
; and the said notice was published in each and every copy
of said newspaper during the period and time of publica-
tion, and that it was published in the newspaper proper
and not in a supplement thereof, and that said notice was
published on Utahlegals.com on the same day as the first
newspaper publication and the notice remained on Utah-
legals.com throughout the period and time of print pub-
lication.
Publisher
Subscribed and sworn before me this
Notary Public
Residing in Moab, Utah
My Commission Expires
SADIE WARNER
Notary PulAc Stole of Utah
My Commrssro-: rApires on
November 7, 2013
Comm. Number. 581356
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Proof of Publication
STATE OF UTAH,
County of Grand,
}
SS.
Zane W. Taylor, being first duly sworn accord-
ing to law, deposes and says: That he is the pubisher of
The Times -Independent, a weekly newspaper of general
circulation, published every Thursday at Moab, Grand
County, State of Utah; that the notice
City of Moab
Ordinance 2010-06 Hearing
hereto attached, and which is made a part of this Affida-
vit of Publication, was published in said newspaper for a
period of 2 consecutive issues, the first publication date
having been made August 12, 2010
; and the last on August 19, 2010
; and the said notice was published in each and
every copy of said newspaper during the period and time
of publication, and that it was published in the newspa-
per proper and not in a supplement thereof.
Publisher
Subscribed and sworn before me this
Notary Public
Residing in Moab, Utah
My Commission Expires
SADIE WARNER
Notary Public State of Utah
My Commission Expires orr
November 7, 2013
Comm. Number: 581356
CM' OF MOAB
PLAHNIK
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oRDI NGPV
The GttroVNFoab
Planning Commis •
-
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Kerbing on'Ours(IftY,
March V5, 201.Dat ap-
i proximal* 7•100
' in.the Council Charm
Hers athe Moab O.
fCtilioes41.217 East
` Center Street, Most;
:+ Utah,
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Proof of Publication
STATE OF UTAH,
County of Grand,
)
SS.
Zane W. Taylor, being first duly sworn accord-
ing to law, deposes and says: That he is the pubisher of
The Times -Independent, a weekly newspaper of general
circulation, published every Thursday at Moab, Grand
County, State of Utah; that the notice
City of Moab
Notice of Public Hearing
Ordinance #2010-06
hereto attached, and which is made a part of this Affida-
vit of Publication, was published in said newspaper for a
period of 2 consecutive issues, the first publication date
having been made March 11, 2010
; and the last on March 18, 2010
; and the said notice was published in each and
every copy of said newspaper during the period and time
of publication, and that it was published in the newspa-
per proper and not in a supplement thereof.
Publisher
Subscribed and sworn before me this
Notary Public
Residing in Moab, Utah
My Commission Expires
SADIE WARNER
Notary Public State of Utah
My Commission Expires on:
November 7, 2013
Comm. Number: 581356