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RESOLUTION
RE: ADOPTION OF POLICY CONCERNING REHEARINGS ON LAND USE MATTERS.
WHEREAS, the Board of County Commissioners of Weld County,
Colorado, pursuant to Colorado statute and the Weld County Home
Rule Charter, is vested with the authority of administering the
affairs of Weld County, Colorado, and
WHEREAS, the Board of County Commissioners deems it advisable
to adopt a policy concerning rehearings on land use matters, and
WHEREAS, the Weld County Attorney has recommended that once
a land use matter has been brought before the Board of County
Commissioners and a decision rendered, reconsideration of the
Board' s action should be considered only when one or more of the
following two conditions exist:
1. A substantial change in the facts or circumstances
subsequent to the first hearing.
2. Newly discovered evidence not available to the appli-
cant at the time of the first hearing.
WHEREAS, the Board of County Commissioners deems it advisable
to adopt the above listed criteria as the policy of the Board.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Com-
missioners of Weld County, Colorado that the above listed criteria
for rehearings on land use matters be , and hereby are, adopted as
the policy of the Board.
BE IT FURTHER RESOLVED by the Board that said policy hereby
adopted by the Board of County Commissioners shall be included
in the Weld County Administrative Manual.
The above and foregoing Resolution was, on motion duly made
and seconded, adopted by the following vote on the 2nd day of
April, A.D. , 1979.
BOARD OF COUNTY COMMISSIONERS
ATTEST: (7 WELD COUNTY, COLORADO
Weld County Cterk and Recorder
and -6'1 erk to the Bd
Bk. s Ott€e_* -Q fcc
4-,Ce".ez--, A.(21-e--77.47.24.--
eputy County Clerk
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APP ED AS TO CCFORM: ///� e( 2'x1/ 1� .-/ ?J>%z" /7 C9 0 County Attorney ,
DATE PRESENTED: April 4, 1979
1J
790926
mi'lLinoRAnDurniTh
Board of
T County Commissioners DMe_March 30, ] 979
r.
COLORADO From Thomas O. David, County Attorney
s"n;loc: Rehearings on Land Use Matters
You have posed the question as to what guidelines should be used
with reference to the reconsideration of land use matters heard
by the Board of County Commissioners.
Once a land use matter has been brought before the Board and a
decision rendered, reconsideration of the Board' s action should
be considered only when one or more of the following two condi-
tions exist:
1. A substantial change in the facts or circumstances
subsequent to the first hearing.
2. Newly discovered evidence not available to the
applicant at the time of the first hearing.
With regard to paragraph number 1 above, the case of Chitwood v.
County of Adams, 495 P. 2d 562 (1972) , was a matter in which the
Board of Adjustment of Adams County, Colorado reconsidered and
subsequently approved an application for a Special Use Permit
for a dog kennel in an Agricultural Zone. The Court of Appeals
of the State of Colorado, in the opinion, set forth the following
rule with regard to a zoning board holding a rehearing, at page
564 of the opinion:
"Further, it is well settled in Colorado that
a zoning board may hold a rehearing, and even
reverse itself if there has been a substantial
change in the facts or circumstances subsequent
to the first hearing.--"
With regard to the question of whether or not there is additional
evidence not available to the applicant at'-the time of the first
hearing, we must consider the fact that when a Board of County
Commissioners considers an application on a land use matter, the
Board is acting in a quasi-judicial capacity. A long line of
Colorado cases bears this out, notably the case of Snyder v. City
of Lakewood, 342 P. 2d 371 (1975) . It is a cardinal rule of pro-
cedure in judicial matters that a new trial or rehearing may be
granted on the grounds of newly discovered evidence , only when
the newly discovered evidence was not available to the applicant
d�t4 � � 7 j
. � / -. Board of County Commissioners
Page 2
March 30, 1979
at the time of the original hearing. This rule shnuld , }Je
applied to hearings of a quasi-judicial nature held by the Board
of County Commissioners.
There are also practical reasons for not allowing a rehearing
unless one or more of the reasons set forth above exist. If an
applicant were granted a rehearing in a zoning matter, simply
because he feels that he may improve the manner in which his
facts are presented to the Board at the second hearing, this
would encourage unsuccessful applicants to apply 'for a rehearing
whenever a negative vote on their application is received which
would result in an endless succession of hearings on all planning
matters which are denied by the Board of County Commissioners.
I would therefore recommend that the Board adopt the rules set
forth in paragraphs number 1 and 2 above as the guide to be used
whenever an application for a rehearing in a land use matter comes
before the Board of County Commissioners./
C _ ,,--4)-afe-e—r9 .
Thomas 0.A David
Weld County Attorney
TOD:ss
cc: Gary Fortner
Tom Bonn
. .(e- I ^. ,
totftiia. mcmQRAn®urf.
WIlDe To Ppart9 of Ottmty_Xptlrttissi nnerS Date Eelimary_2., 1979 •
:,.COLORADO From R Rttssal l Ansntt, Assi stat1t ronnty_Attnrnay
Subject: Pe-{{Parings
,
Question: Can the Board of County Commissioners reconsider a decision ,
made on a land use matter, and if so - what procedure must be used?
Answer: Yes , the Board of County Commissioners can reconsider a
decision, but must follow procedures outlined below.
I
Discusssion: A Board of County Commissioners , after having made a
decision on a land use matter (i.e. , re-zoning, recorded exemption, etc. )
may reconsider its decision and have a re-hearing, provided appropriate
prior notice of the re-hearing is given. Colorado case law on this
question is almost non-existent. The law in other jurisdictions varies
depending upon the state. Some states hold that a board must have the
re-hearing within the time of appeal (in Colorado this would be 30 days . )
In other states it makes no difference. Aire-hearing can be held six ,
months after the original hearing. Some jurisdictions hold that if
re-hearing procedures are in the zoning ordinance, then they must be
followed, but if re-hearing procedures are'not in the ordinance, then
a re-hearing can be held for any reason soIlong as proper notice is
given. At least one jurisdiction has held ' that a re-hearing cannot
be held under any circumstances. In summation, the law of other juris-
dictions varies from state to state and there is no concrete principle.
There is one Colorado case that speaks on this issue. However, it is
a Court of Appeals decision, Chitwood v. County of Adams, 495 P2d 562
(1972) , and was not selected for official publication. The case in-
volved a request for a special use permit for a dog kennel. At the
first hearing it was denied. At a re-hearing the applicant abandoned
*: his original plan and requested approval with a five-year limitation
with two kennels instead of three and with ; the kennels located differ-
ently.' It was then approved.
From case law it can be concluded that: (1) a re-hearing can be held;
(2) notice must be given in the same manner as required at the original
' hearing; and (3) if the Board reverses its original decision, and if the
case is appealed it could be reversed if the Board reversed its decision
without there being a change in facts or circumstances between the
first and second hearings.
//j// �./� J ( t:
R. Russell Anson Thom s 0. David
i -Assistant County Attorney Weld County Attorney
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