EL PASO COUNTY
LAND DEVELOPMENT CODE

Chapter IV - Section 34

Board of Adjustment

1.   In accordance with Section 30-28-117, Colorado Revised Statutes, a Board of Adjustment is hereby established, the members of which shall be appointed by the Board of County Commissioners.

2.   The Board of Adjustment shall consist of five (5) regular members and up to four (4) associate (alternate) members, all of whom must be residents of El Paso County. One regular member position may be left open, to be filled at each hearing by an associate member designated by the Chairman of the Board of Adjustment on a rotating basis.

3.   All members of the Board of Adjustment serve without compensation.

4.   The terms of the regular members shall be for three (3) years, with the terms staggered so that no more than one (1) regular member's term expires each year. No regular member shall serve more than two successive full terms as regular members. Associate members are subject to annual re-appointment by the Board of County Commissioners. Vacancies on the Board of Adjustment shall be filled for the remainder of the unexpired term of the resigning member.

5.   Any member of the Board of Adjustment may be removed for cause by the Board of County Commissioners upon written charges and after a public hearing. Cause shall include, among other things, failure to attend three scheduled meetings during any one (1) year period.

6.   Associate members will be appointed by the Chairman of the Board of Adjustment on a rotating basis to vote in place of any absent regular members. All other associate members are entitled to participate in the deliberations except for the motions for approval/disapproval and the voting.

7.   The Board of Adjustment may adopt any additional rules relating to its organization, meetings and procedures, provided that they are in accordance with this Section 34.

B.   MEETINGS & RECORDS

1.   Meetings of the Board of Adjustment shall be held on a regularly scheduled day each month, unless canceled for lack of business, or at the call of the Chairman of the Board of Adjustment.

2.   All meetings shall be open to the public, and any item before the Board of Adjustment shall be subject to public comment.

3.   Upon the request of any person attending a hearing or any Board member, testimony on a given item may be given under oath and subject to cross-examination.

4.   Subpoenas to compel the attendance of witnesses may be obtained, upon proper showing, from a court of competent jurisdiction.

5.   The Secretary to the Board of Adjustment shall keep minutes of its proceedings showing the vote of each member upon each item presented and keep records of all official actions of the Board, all of which shall be retained by the Development Services Department as a public record. The minutes of previous proceedings shall be regularly presented to the Board of Adjustment for review and approval.

C.   PROCEDURES

1.   The procedures for processing an appeal or a variance are identical, except that an appeal must be filed (in accordance with the procedures of this Subsection C.) with the Development Services Department within thirty (30) days following either the date of the Development Services Department's denial of authorization for the issuance of a building permit or the date that the administrative determination by the Development Services Department was made.

2.   It is recommended that, prior to submitting any petition the petitioner consult with the Development Services Department as to the necessity for the appeal or variance request and, if necessary, the nature and extent of information or other documentation that will be needed to complete the petition submitted to the Development Services Department .

3.   An appeal or variance application shall be made by submitting a complete petition form provided by the Development Services Department. A "complete petition" shall include all items specified in Subsection 4.B. of these Zoning Regulations (including all required information and drawings, the notice to adjoining property owners, and the filing fees) and any other information or documentation required by this Section 34 or the Development Services Department for the adequate review of the appeal or variance request. An appeal shall include the written record and other documentation used in either denying authorization for the issuance of a building permit or making an administrative determination.

4.   The submission of a complete petition shall be made at least twenty-two (22) days prior to the Board of Adjustment hearing at which the petition is to be presented.

5.   Copies of the petition may be sent by the Development Services Department to appropriate federal, state and local agencies for review and comment. These comments along with the Development Services Department's comments, recommendations, and proposed conditions and restrictions, will be presented to the Board of Adjustment. Copies of these comments and recommendations will be available to the petitioner and any other interested party by the date of the Board of Adjustment hearing.

6.   Any interested party may appear before the Board of Adjustment in person, by agent or attorney, or by written comment. The petitioner or his/her representative must be present at the hearing and willing to answer questions from the Board members in order for the petition to receive a favorable action from the Board.

7.   The petitioner, on an appeal or variance request, shall have the burden of: (a) providing all information necessary for an adequate evaluation and review of the petition; and  (b) demonstrating that the petition addresses and satisfies the applicable standards and findings set out in Subsection E. below.

D.   JURISDICTION

In accordance with Sections 30-28-117 and 118, Colorado Revised Statutes, the Board of Adjustment shall have the following powers and duties:

1.   To hear and decide appeals where it is alleged that there is an error in any order, requirement, decision or refusal made by the Development Services Department pertaining to the application or enforcement, under these Zoning Regulations, of:

a.   any zoning district's development requirements relating to physical dimension, structural location, or bulk limitation (not including Section 35.5);

b.   "nonconforming building" provisions (Section 35.2 E.);

c.   "nonconforming lot or parcel" or "merger by contiguity" provisions (Section 35.2 K.);

d.   off-street parking and development requirements (Section 35.3);

e.   advertising devices (dimensional, location, and number require-ments only) (Section 35.4);

f.   landscape requirements (Section 35.12); or

g.   any other matter appealable to the Board of Adjustment under Section 1, General Provisions, paragraph M, Appeals, of these Zoning Regulations.

2.   To authorize variances from the strict application of any physical require-ment (see subparagraph l.a. above) of these Zoning Regulations which would result in peculiar and exceptional practical difficulties to, or exceptional and undue hard-ship upon, the owner of such property. "Practical difficulties" and "hardship", in this context, may exist where the legal use of the property is severely restricted due to: a) the exceptional narrowness, shallow-ness or shape of the specific piece of property, or b) the exceptional topographic conditions or other extraordinary or exceptional situation or condition of such piece of property.

3.   To authorize variances for those matters identified in subparagraphs l.c. through f. of this Subsection D., where strict compliance with these Zoning Regulations would result in peculiar or exceptional practical difficulties to, or exceptional and undue hardship upon, the owner of the property.

4.   To pass upon disputed questions of zoning district boundary lines.

5.   To hear any other appeal or variance matters expressly delegated to the Board of Adjustment by these Zoning Regulations.

E.   STANDARDS & FINDINGS

1.   Before granting an appeal from determinations or actions of the Development Services Department (Paragraph D.1. above), the Board of Adjustment shall find, based on adequate evidence presented to it by the petitioner, that all of the following exist:

a.   There was a clear and harmful error in the order, requirement, decision or refusal made by the Development Services Department;

b.   Granting the appeal will permit only those uses specifically enumerated as permitted uses for the zoning district in which the property is located;

c.   Granting the appeal will not substantially alter character or development pattern of the zoning district nor significantly impair the intent and purpose of these Zoning Regulations; and

d.   Granting the appeal will not violate any applicable federal, state or other local laws or regulations.

2.   Before granting a variance from the strict application of the Zoning Regulations (Paragraphs D.2 and D.3 above), the Board of Adjustment shall find, based on adequate evidence presented to it by the petitioner, that all of the following exist:

a.   The variance will permit only those uses specifically enumerated as permitted uses for the zoning district in which the property is located;

b.   The property for which the variance is sought suffers an exceptional or extraordinary situation or condition uncommon to other properties in the area, resulting in a "practical difficulty" or "hardship" upon the petitioner in making a reasonable use of the property in full conformance with the zoning requirements;

c.   Any hardship or difficulty supporting the variance is not self-imposed by the owner or his/her predecessors;

d.   [Substitute for findings b. and c. when the Board of Adjustment makes a specific finding that:] The burdens of strict compliance with the zoning requirement(s) significantly exceed the benefits of such compliance for the specific piece of property and

1)   the variance provides only reasonably brief, temporary relief, or

2)   the variance request includes an alternative plan, standards or conditions that substantially and satisfactorily mitigate the anticipated impacts or serve as a reasonably equivalent substitute for current zoning requirements, or

3)   some other unique or equitable consideration compels that strict compliance not be required [specify this consideration];

e.   The variance, as requested, represents the minimum variance that will afford appropriate relief while modifying the existing regulations to the least degree possible;

f.   The variance will not substantially or permanently injure or interfere with the use of adjacent properties or public easements or rights-of-way;

g.   The variance will not substantially alter the character or development pattern of the zoning district nor significantly impair the intent and purpose of the Zoning Regulations;

h.   The variance will not adversely affect the public health, safety or welfare; and

i.   The variance will conform with all applicable federal, state or other local laws or regulations.

F.   ACTION

1.   Following presentation by the Development Services Department, the petitioner or his/her representative, and any interested parties in attendance, the Board of Adjustment may act to approve, disapprove, approve with conditions and/or notations, or continue any appeal or variance request.

2.   Upon a motion and second by members of the Board of Adjustment, the hearing on any item may be continued to the next month's hearing by a simple majority vote of the Board. Any given item may be continued only once on the Board's own motion. The Chairman may grant a continuance request by the petitioner at any time prior to a motion on the item, provided the subject property is not currently in violation of these Zoning Regulations as they directly relate to the appeal or variance request.

3.   The concurring vote of four (4) members of the Board of Adjustment shall be necessary to approve any appeal or variance request.

4.   The Board of Adjustment is empowered to attach such reasonable requirements, conditions, and restrictions to any approval of an appeal or variance request as it deems necessary to carry out the intent and purpose of the Zoning Regulations. In this connection, it may require the written consent to such requirements, conditions and restrictions by the petitioner or require the placing of such matter on the title record for the property.

5.   The following standard conditions for all variances approved by the Board of Adjustment, in the past or the future, shall be applicable:

a.   Any physical variance approved shall be limited to the property configuration and/or existing or proposed structures actually presented to the Board of Adjustment on the approved site plan.

b.   Any physical variance approved for a proposed structure (except for lot area variances) is valid only if construction on the structure is initiated within twelve (12) months of the date of the Board of Adjustments approval or, for past variances, within twelve (12) months of the effective date of this regulation.

c.   Any physical variance approved for an existing or subsequently constructed structure (except for lot area variances unless otherwise provided in Section 35.2) is valid only so long as the structure is not removed or demolished.

d.   The granting of a lot area variance by the Board of Adjustment shall not free the property from being subject to the "merger by contiguity" provisions of Subsection K. (Part II) of Section 35.2., unless a variance is expressly granted by the Board of Adjustment for this purpose.

6.   Failure to abide by or comply with any requirements, conditions or restrictions may result in the revocation of the Board's approval following appropriate notice and a public hearing thereon.

7.   Appeal on any action (other than continuance) of the Board of Adjustment is to the District Court in and for El Paso County. Such appeal must be filed within thirty (30) days of the date the Board of Adjustment took action.

G.   RE-APPLICATION

No denied appeal or variance request shall be the subject of a new application to the Board of Adjustment for a period of one year. However, if compelling evidence is provided that there is a substantial change in the property's condition or circumstances, the Board may, at its own discretion, consider a new application. The time limitation of one year shall be computed from the date of final action by the Board of Adjustment or, in the event of court litigation, from the date of entry of the court's final judgment.

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