Colorado § 31-23-307 - Board of adjustment.

§ 31-23-307. Board of adjustment.

(1) The governing body shall provide for the appointment of a board of adjustment consisting of five members, each to be appointed for three years, unless the governing body by ordinance establishes a different number of members or term of office. The governing body may provide by ordinance for filling vacancies on the board, for designation of alternate members, and for removal of members for inefficiency, neglect of duty, or malfeasance in office. The board of adjustment shall hear and decide appeals from and review any order, requirement, decision, or determination made by any administrative official charged with the enforcement of any ordinance adopted pursuant to this part 3. It shall also hear and decide all matters referred to it or upon which it is required to pass under such ordinance. Unless otherwise provided by ordinance, the concurring vote of four members of the board shall be necessary to reverse any order, requirement, decision, or determination of any such administrative official, or to decide in favor of the applicant any matter upon which it is required to pass under any such ordinance, or to effect any variation in such ordinance. Every decision of such board shall be subject, however, to review by certiorari by the district court of the county within which the municipality or any part thereof is located. Such appeal shall be filed not later than thirty days from the final action taken by the board of adjustment. Such appeal may be taken by any person aggrieved or by an officer, department, board, or bureau of the municipality.

(2) An appeal to the board of adjustment shall be taken within such time as prescribed by the board of adjustment by general rule by filing with the officer from whom the appeal is taken with the board of adjustment a notice of appeal, specifying the grounds thereof. The officer from whom the appeal is taken shall at once transmit to the board of adjustment all the papers constituting the record upon which the action appealed from was taken.

(3) An appeal stays all proceedings in furtherance of the action appealed from unless the officer from whom the appeal is taken certifies to the board of adjustment after the notice of appeal has been filed with him that by reason of facts stated in the certificate a stay would, in his opinion, cause imminent peril to life or property, in which case proceedings shall not be stayed otherwise than by a restraining order which may be granted by the board of adjustment or by the district court on application, on notice to the officer from whom the appeal is taken, and on due cause shown.

(4) The board of adjustment shall fix a reasonable time for the hearing of the appeal, give due notice thereof to the parties, and decide the same within a reasonable time. Upon hearing, any party may appear in person or by agent or attorney. The board of adjustment may reverse or affirm, wholly or partly, or may modify the order, requirement, decision, or determination appealed from and shall make such order, requirement, decision, or determination as in its opinion ought to be made in the premises and to that end has all the powers of the officer from whom the appeal is taken. Where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of such ordinance, the board of adjustment has the power, in passing upon appeals, to vary or modify the application of the regulations or provisions of such ordinance relating to the use, construction, or alteration of buildings or structures, or the use of land, so that the spirit of the ordinance is observed, public safety and welfare secured, and substantial justice done. The governing body by ordinance may eliminate the board of adjustment's authority to grant use variances or use modifications, or may transfer that authority to some other board, agency, or commission, or to the governing body of the municipality. Where feasible, the board of adjustment may vary or modify the application of the regulations for the purpose of considering access to sunlight for solar energy devices.

(5) The governing body of a municipality that has entered into an intergovernmental agreement with the county or counties within which it is located for the purposes of joint participation in land use planning, subdivision procedures, and zoning pursuant to the authority granted in section 31-23-227 (2) may, by ordinance, enter into an intergovernmental agreement with the county or counties within which it is located for the purpose of joint participation in the establishment of a joint zoning board of adjustment for a specific area designated in the intergovernmental agreement.

Source: L. 75: Entire title R&RE, p. 1157, § 1, effective July 1. L. 79: (4) amended, p. 1164, § 15, effective January 1, 1980. L. 81: (1) and (2) amended, p. 877, § 2, effective April 24; (4) amended, p. 1514, § 5, effective June 4. L. 98: (5) added, p. 689, § 2, effective May 18.

Editor's note: This section is similar to former § 31-23-207 as it existed prior to 1975.

ANNOTATION

Law reviews. For note, "Zoning Variances — The Colorado Position", see 34 Rocky Mt. L. Rev. 382 (1962). For article, "Boards of Adjustment in the 1990s", see 20 Colo. Law. 487 (1991).

A board of adjustment has broad discretion in issuing an order pertaining to an appeal from an order, requirement, decision, or determination made by an administrative official charged with the enforcement of a zoning ordinance. Bd. of County Comm'rs of La Plata County v. Moga, 947 P.2d 1385 (Colo. 1997).

Authority to rehear variance application. A zoning board of adjustment has authority to rehear an application for variance based upon the allegation that it has granted a variance which it is not empowered to grant under a city code. Moschetti v. Bd. of Zoning Adjustment, 40 Colo. App. 156, 574 P.2d 874 (1977).