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Home My WebLink About790371.tiff RESOLUTION RE: ADOPTION OF REVISED BOARD OF ADJUSTMENT BY-LAWS . 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 Adjustment By-Laws have been revised and submitted to the Weld County Board of Adjustment for its approval, and WHEREAS, the Board of Adjustment adopted said By-Laws at its meeting of September 13 , 1979 , and WHEREAS, said By-Laws have been presented to the Board of County Commissioners of Weld County, Colorado for its approval, and WHEREAS, the Board of County Commissioners deems it advisable and in the best interests of Weld County, Colorado to adopt said Board of Adjustment By-Laws . NOW, THEREFORE, BE IT RESOLVED by the Board of County Com- missioners of Weld County, Colorado that the Board of Adjustment By-Laws be, and hereby are, adopted. The above and foregoing Resolution was, on motion duly made and seconded, adopted by the following vote on the 26th day of September, A.D, , 1979. BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO --7-1g"r„ie-._ a....40,,,_ (Aye) Norman Carlson, Chairman `7 4- • ;z/ . az-7,7 ,9A/ (Aye) ATTEST: fit"'" ` `"r'`" L_y ' Dunbar Weld County Clerk and Recorder l 'J�� t� (Aye) ac.--\ Clerk to the D Board C. N. Kirby / B C�C I � d L � ./ z.E (Aye) , eputy County erk Leo rd L. Roe T �C. 1-0,9444) APP D AS _��1� Ju K. Steinmark County Attorney DATE PRESENTED: OCTOBER 1 , 1979 - 790371 BY-LAWS WELD COUNTY BOARD OF ADJUSTMENT Article I - Name of Board The Board shall be called the Weld County Board of Adjustment in conformance with CRS 30-28-117 and 30-28-118 (1973 as amended) . Article II - Functions and Duties of the Board of Adjustment The Board of Adjustment shall perform such functions and duties as are provided by statute and by Section IX of the Weld County Zoning Resolution. Article III - Membership of the Board of Adjustment A. The Board of Adjustment shall consist of nine (9) members appointed by the Board of County Commis- sioners . B. The Board of County Commissioners shall determine six (6) geographic areas and appoint one (1) mem- ber from each of the geographic areas. Each mem- ber shall reside within the geographic area for which he is appointed at the time of his appoint- ment and during his term. C. Three (3) members shall be appointed by the Board of County Commissioners from the County-At-Large. D. The term of office of each member of the Board of Adjustment shall be for three (3) years. Said terms to be staggered so that two (2) members from geographic areas and one (1) member at-large are appointed each year. E. No member of the Board of Adjustment shall serve for more than two consecutive terms. F. The Board of County Commissioners shall appoint three (3) associate members of. the Board of Adjustment to be selected from the County-At- Large. In their selection of said associate members , said Board of County Commissioners shall attempt to obtain representation from a broad geographical cross-section of Weld County.. The term of office of each associate member shall be for three ( 3) years , said terms to be staggered so that one associate member is appointed each year . In the event any regular member of the Board is temporarily unable to act due to absence from the County, illness , interest in a case before the Board, or any other cause, his place may be taken during such temporary disability by one of the associate members. Article IV - Officers A. The Board of Adjustment shall organize annually at the first regular meeting of each calendar year and shall elect a Chairman and a Vice-Chairman whose terms shall be for one (1) year. The Chairman and Vice-Chairman shall be eligible for re-election. B. The Board of County Commissioners shall appoint a Secretary for the Board of Adjustment who shall be a Notary Public . C. The Chairman, or in his absence the Vice-Chairman, shall preside at all meetings of the Board of Adjustment and shall decide all points of order or procedure in accordance with Roberts ' Rules of Order. • D. The Secretary shall be responsible for keeping the minutes of the Board of Adjustment; seeing that a notice of all hearings before the Board of Adjust- ment is published if required by the Weld County Zoning Resolution; mailing a notice of hearings for the Board of Adjustment to property owners as speci- fied in the Weld County Zoning Resolution; obtaining a fee from applicants as required by Resolution of the Board of County Commissioners; notifying mem- bers of forthcoming meetings; notifying associate members of the Board of Adjustment of meetings at which they will participate; carrying out routine correspondence; maintaining the records of the Board of Adjustment; and performing such other ad- ministrative duties as may be requested by the Board of Adjustment or the Board of County Commis- sioners. Article V - Meetings . A. The Board of Adjustment shall meet on the second and fourth Thursday of each month provided that there is business to conduct, in the first floor hearing room or otherwise designated hearing room of the Weld County Centennial Center , 915 10th Street Greeley, Colorado, at a regular time to be set by the Chairman of the Board of Adjustment. -2- B. Special meetings of the Board of Adjustment may be called by the Chairman , or in his absence by the Vice-Chairman, provided that at least three (3) days notice is given each member prior to any such special meeting date. C. The order of business at all meetings shall be as follows : 1. Roll call; 2. Approval of minutes of previous meeting; 3. Unfinished business; 4 . New Business. D. Where procedural and parliamentary rules adopted by the Board of Adjustment or the Weld County Home Rule Charter do not conflict, parliamentary procedure shall be according to the Roberts ' Rules of Order. E. All meetings of the Board of Adjustment shall be open to the public. F. The Board of Adjustment shall keep minutes of its proceedings showing the vote of each member upon each question, or if absent or failing to vote, indicating such fact and shall keep records of its examinations and other official actions, all of which shall be immediately filed in the office of the Board of Adjustment and shall be a public record. G. The concurring vote of six (6 ) members of the Board of Adjustment shall be necessary in order to decide in favor of the Appellant on any appeal brought pur- suant to Section 9. 1. 3. a, b, c, or d of the Weld County Zoning Resolution. H. Following the presentation of testimony and discus- sion by members of the Board , a member of the Board shall call for a vote on whether or not the appeal should be decided in favor of the Appellant. A vote of "yes" shall be a vote in favor of the Appellant' s position; a vote of "no" shall be a vote opposed to the Appellant' s position. It shall be incumbent upon the prevailing side to recite into the record the reasons for approval or denial of the appeal. Article VI . - Quorum Seven (7) members of the Board of Adjustment shall con- stitute a quorum for the transaction of business. -3- Article VII - Attendance A. Members of the Board of Adjustment are required to faithfully attend meetings of said Board . B. If any regular member misses three consecutive meetings or misses more than 40% of the meetings in any three month period , the Board of Adjust- ment shall recommend to the Board of County Commissioners that written charges be brought against said member to show cause why he should not be removed for his failure to faithfully attend the meetings of said Board. The Board of Adjustment, for good cause shown may deter- mine that the cause of the absense was excusable and that no charges should be brought. C. It shall be the duty of the Secretary to record the attendance of each member , notify the Chairman if any member has failed to faithfully attend pur- suant to paragraph "B" above and to place any hearing regarding attendance of a member on the agenda. Said matter shall be the last item of business on the agenda. Article VIII - Expenses Within the limits of funds authorized by the Board of County Commissioners , members of the Board of Adjust- ment shall be reimbursed for mileage and other expenses incidental to the performance of their duties as members of the Board. Article IX - Amendment These By-Laws may be amended by an affirmative vote of six (6) members of the Board of Adjustment. No amend- ment to these By-Laws shall be considered at any meeting of the Board of Adjustment unless first submitted in writing to each member of the Board at least seven (7) days prior to the meeting at which said amendment is to be considered. -4- , mEmoRAnDum W Il lie Norman Carlson, June Steinmark, rol,ennarR Roe Lydia Dunbar Date July 3, 1979 and Bill Kirby COLORADO From J. Robert Lowenbach Subject: By-Laws of the Board of Adjustment Attached hereto for your information are copies of by-laws adopted by the Board of Adjustment at their meeting of June 28, 1979 . Also attached is a copy of a legal memorandum which I have prepared outlining the powers and duties of the Weld County Board of Adjustment . You will note that my memorandum is divided into two parts , the first of which addresses the question of whether the Board of Adjustment must act on applications for special use permits and conditional use permits . As stated in the memorandum, I have concluded that the Board of Adjust- ment need not act on those applications and that you may continue to act on those through the Planning Commission and the Board of County Commissioners . The second part of the memorandum addresses the question of what degree of concurring vote is required on a board of nine in order to decide in favor of the appelant . It is my understanding that you will consider approval of the amended by-laws at your meeting on July 9 . The decision to revise the by-laws of the Board of Adjustment was made because of the fact that they had not been revised since the adoption of the Home Rule Charter and there- fore they were very much out dated. I will be present at the meeting of July 9 to answer questions which you may have concerning my legal memorandum. However, I feel it is important that the issue of whether or not the Board of Adjustment must act on special use permits and conditional use permits not be discussed at that meeting. While I have concluded that the Board of Adjustment need not act on these matters, it is clearly arguable that they should act on these matters . If this issue were discussed at the meeting on July 9, I 'm afraid we may "red flag" an issue which has not previously been subject to debate. If you would like to discuss this with me, I would be happy to do so at any time. Sincerely, i-. ibyP Robert Lo e �'nbach ssistant Weld County Attorney JRL/pav enclosure r BEFORE THE WELD COUNTY BOARD OF ADJUSTMENT RESOLUTION OF RECOMMENDATION TO THE BOARD OF COUNTY COMMISSIONERS Moved by Connie Green that the following resolution be introduced for passage by the Weld County Board of County Commissioners : Be it therefore Resolved by the Weld County Board of Adjustment that the following be adopted by the Board of County Commissioners : By-Laws of the Weld County Board of Adjustment with an addition under Article V-A to read : "The Board of Adjustment shall meet the second and fourth Thursday of each month if there is business to be conducted. . . " To be recommended favorably to the Board of County Comissioners . Motion seconded by Carroll Miller Vote : For Passage Abstain Against Gordon Lacy Homer Warren Connie Green Carroll Miller Walter Teel Frank Stewart The Chairman declared the motion passed and ordered that a certified copy of this Resolution be forwarded with the file of this case to the Board of County Commissioners for further proceedings . CERTIFICATION OF COPY 1 , Shirley A. Phillips , Acting Recording Secretary of the Feld County Board of A_djustrent, do hereby certify that the above and foregoing Resolution is a true copy of the Resolution of the Veld County Board of Adjustment adopted on June 28 , 1979 and recorded in Volume III of the proceedings of the Veld County Board of Adjustment . Dated the 29th day of June, 1979 fl Secretary c HORAnDu: i� ; / / To Thomas O. David Da1P June 19, 1979 COLORADO From J. Robert Lowenbach Subject. Board of Adjustment Powers and Duties. u) oI' V— 0P_Dt- I ) rILF it ) 3c) I. MUST THE BOARD OF ADJUSTMENT ACT ON APPLICATIONS FOR SPECIAL USE PERMITS AND CONDITIONAL USE PERMITS , The powers and duties of the Board of Adjustment are enumerated in C. R. S. 30-28-118 (1973 as amended) . Pursuant to C.R.S . 30-11-501 (1973 as amended) , Weld County has adopted the Weld County Home Rule Charter, which relates to the- organization and structure of county government. Under the Weld County Home Rule Charter, Weld County could have transferred the duties of the Board of Adjustment to the County Commissioners or to the Planning Commission , however, this was not done. Article 4 , Section 4-4 (B) of the Home Rule Charter _Provides for the Board of Adjustment. That Section further provides that the Board of Adjustment shall consist of nine members appointed in the same manner and for the same terms as the Planning Commission and that the Board of Adjustment shall perform such functions and duties as are provided by law. C. R. S. 30-28-117 (1973 as amended) provides that the Board of Adjust- ment shall consist of three or five members. Since the number of members on the Board of Adjustment is a matter of organization and structure of county government, the provision of the Home Pule Charter which increases the number of members on the Board to nine is effective. According to C.R.S. 30-28-118 (1973 as amended) , the Board of Adjust- ment has the power to hear and decide in accordance with the pro- visions of the Zoning Resolution, requests for special exceptions or for interpretation of the map or for decisions upon other special questions upon which the Board of Adjustment is authorized by the Zoning Resolution to pass. Pursuant to this statute, Section 9. 3. 3.b. of the Weld County Zoning Resolution provides that the Board of Adjustment shall hear and decide requests for special exceptions and for Conditional Use Permits. In the Colorado Court of Appeals case Guildner Way, Inc. , v. Board of Adjustment of Adams County, 529 P. 2d 332 (1974) , it was stated that a Special Use Permit is synonymous with a special exception. This same reasoning is followed in other jurisdictions also. For specific citations see memorandum of R. Russell Anson, dated February 10 , 1977 to Gary Fortner concern- ing Special Use Permits. It could therefore be argued that the Memo to Tom Dav)-dm Bob Lowenbach r- ‘,, Board of Adjust : nt Page 2 statute requires that the Board of Adjustment pass on applications for Special Use Permits since those duties were not altered by the Weld County Home Rule Charter. However, Section 3. 3. E of the Weld County Zoning Resolution provides that the Planning Commission is authorized to recommend and the Board of Commissioners must approve requests for Special Use Permits. It is therefore clear, that the drafters of the Zoning Resolution and the Commissioners, when they adopted the Zoning Resolution did not interpret a special exception to be synonymous with a Special Use Permit. In addition, the Zoning Resolution ' s provision in Section 9 . 1 . 3. 8 that Conditional Use Permits shall be decided by the Board of Adjust- ment is clearly contrary to Section 3. 3. D of the Resolution which provides that the Planning Commission shall recommend to the Board of County Commissioners and the Board of County Commissioners shall approve applications for Conditional Use Permits. This is a contra- diction in the Zoning Resolution which should be corrected by amend- ing Section 9 . 1. 3.B. As was stated before, and argument could be made that C.R.S. 30-28-118 (2) (b) , (1973 as amended) , requires that Special Use Permit applica- tions be handled by the Board of Adjustment, however, I believe an equally strong argument can be made that the powers enumerated in that section are permissive in nature and that the Board may provide that such applications go through the Planning Commission and the Board of County Commissioners as set forth in the Zoning Resolution. C. R. S . 30-28-117, (1973 as amended) in pertinent part provides as follows : (3) Any Zoning Resolution of the Board of County Commissioners may provide that the Board of Adjustment, in appropriate cases and subject to appropriate principles, standards, rules, conditions, and safeguards set forth in the Zoning Resolution, may make special exceptions to the terms of the Zoning Regulations in harmony with their general purpose and intent. The Board of County Commissioners may also authorize the Board of Adjustment to interpret the Zoning maps and pass upon disputed questions of lot lines or district boundary lines or similar questions , as they may arise in the Administration of the Zoning Regulations. (Emphasis added) • This section seems to indicate that the County Commissioners are not required, through the Zoning Resolution, to have the Board of Adjustment pass on special exceptions and the other matters enum- erated in 30-28-118 (2) (b) . Since it is clear that the drafters of the Resolution did not consider special exceptions to be synonymous Memo to Tom David f,Aom Bob Lowenbach ^ Board of Adjusnt . . . . • Page 3 with Special Use Permits, and since the drafters of the Resolution clearly stated that the Planning Commission and Board of County Commissioners shall approve applications for Special Use Permits, the Commissioners intent to elect to limit the functions of the Board of Adjustment has been made clear. II. WHAT DEGREE OF CONCURRING VOTE IS REQUIRED ON A BOARD OF NINE IN ORDER TO DECIDE , IN FAVOR OF THE APPELLANT In order to fully answer the above question, it is necessary that four specific questions be answered. First, whether or not the provisions of 30-28-118 (3) go to the structure and organization of the Board of Adjustment or whether the requirement of greater than a majority vote is a substantive provision. Second , if said pro- vision does relate to organizationand structure , whether or not the provision may be altered by a simple Resolution or whether it must be altered through the Home Rule Charter. Third , if a vote of greater than a majority is required in order to rule in favor of the Appellant, what degree of concurring vote is required on a board of nine. Fourth, whether or not the provisions of 30-28-118 (3) apply only to appeals under Section (2) (a) , or whether the provision applies to (2) (b) and (2) (c) as well. C. R. S . 30-28-118 (1973 as amended) in pertinent part provides as follows: (3) The concurring vote of four members of the Board in the case of a five member board and of three members in the case of a three member board shall be neces- sary to reverse any order, requirement, decision, or determination of any such administrative official or agency or to decide in favor of the Appellant. The first issue to determine is whether or not this provision goes to the structure and organization of the Board of Adjustment or whether the requirement of greater than a majority vote is a substan- tive provision. In order to make this determination, it is neces- sary to make a determination as to what the legislative purpose was of requiring greater than a majority vote. It appears clear from this provision that the purpose of the legislature in requiring greater than a majority vote was to preserve the integrity of the Zoning Resolution by making it very difficult to overrule an admin- istrative determination made with respect to the enforcement of said Resolution. Attributing this intent to a legislature, it appears clear that the requirement of a greater than majority vote for approval of a variance or appeal is a substantive requirement as opposed to one of organization and structure. Therefore, an attempt to require only a simple majority of the members present or of the Board as a whole, would be one which would not be effective under C. R.S. 30-11- 501 (1973 as amended) . Memo to Tom Da' : )m Bob Lowenbach Board of Adjustment Page 4 The second question of whether the provision for greater than a majority vote can be altered by a simple resolution (assuming that it is a provision of organization and structure) must be answered in the negative. This answer is dictated by the provisions of C. R. S. 30-11-501 which provide as follows: Any county in this state, pursuant to the provisions of this part 5 , may establish the organization and structure of county government which shall be submitted to and adopted by a majority vote of the registered qualified electors of the county which shall be known as the County Home Rule Charter. (Emphasis added) i It is clear from this statute that the only manner of altering the organization and structure of county government is through the Home Rule Charter. The third issue to consider is what degree of concurring vote is required on a board of nine. The answer to this quesion is largely a matter of speculation ,inasmuch as the statutory provisions do not anticipate a board of greater than five members . One way of inter- preting this provision is that there must be merely a concurring vote of four members of the board inasmuch as the statute does not specif- ically provide for the concurrence of more than four members. Clear- ly, if all nine members attended, a concurring vote of five would be required in order to obtain a majority. The problem with this interpretation of the statute is that it does not take into accout the intent which I have attributed to the legislature of requiring_ a greater than majority vote of the board. Therefore , it is my conclusion that this interpretation must be discarded. Another possible interpretation is that the legislature required a minimum affirmative vote of eighty percent of the members of the board. Therefore, on a board of nine the concurring vote of eight members would be required. As a practical matter, the requirement of eight affirmative votes would make it extremely difficult to even obtain a quorum for the meetings of the Board of Adjustment based on past experience with attendance. A third possible interpretation, and the one which appears to be most practical and most symmetrical with the legislative intent, is the interpretation that the legislature intended that with the addition of each unit to two more members , that one additional con- curring vote would be required. Therefore , with a nine member board, the affirmative vote of six members would be required . This inter- pretation is supported by the fact that the statute requires unan- imity in the case of a three member board, but requires the affirma- tive vote of only one additional member in the case of a five member board. In addition, in practical terms , the requirement of six members would be a very high burden upon the Appellant based on • . Memo to Tom Datf_ ,m Bob Lowenbach ' Board of Adjustment Page 5 • the difficulty in getting more than six members of the board at any one meeting of the Board of Adjustment, and would be in line with the legislative intent to make the granting of variances and the over- ruling of administrative decisions difficult to obtain. It is there- fore my conclusion that either the second or third interpretation are in line with the legislative intent, and that the third inter- ' pretation is most symmetrical and practical. With respect to the fourth question of whether or not the provisions of 30-28-118 (3) apply only to appeals under Section (2) (a) , or whether the provision applies to (2) (b) and (2) (c) as well , I have concluded that the provision applies to (2) (c) and probably to (2) (b) as well. Again, this conclusion is based on the wording of (3) which provides that greater than a majority vote is required in order . . to decide in favor of the Appellant. " C.R. S. 30-28-118 in perti- nent part provides as follows: (2) Upon appeals, the Board of Adjustment has the following powers : (a) (b) to hear and decide, in accordance with provisions of any such resolution, requests for special exceptions or for interpretation of the map or for decisions upon other special questions upon which such board is authorized by any such resolution to pass. (c) Where, by reason of exceptional narrowness, shallowness, or shape of a specific piece of property at the time of the enactment of the regulation or by reason of exceptional topographical con- ditions or other extra-ordinary and excep- tional situation or condition of such piece of property, the strict application of any regulation enacted under this part one (1) would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the owner of such property, to authorize, upon an appeal relating to said property, a variance from such strict application so as to relieve such difficulties or hardship if such relief may be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of the zone plan and zoning resolution. (Emphasis added) Memo to Tom Da,� m Bob Lowenbach • ' Board of Adjust„ant Page 6 It is clear from the use in (2) (c) of the words "upon an appeal" that the legislature intended that such variances would issue only upon an appeal . Therefore, the wording in (3) requiring a greater than majority vote in order to decide in favor of an appellant would apply in the case of applications for variances under (2) (c) . The provisions of (2) (b) are somewhat different, and therefore my conclusion, that an application under that section is an appeal, is subject to more debate. While it could be argued that the use in (2) (b) of the words "re- quests" , "interpretations" and "decisions" , makes applications made under this subsection something other than appeals and there- fore susceptible to approval of the applicant ' s position by a majority vote of the members present, it is my feeling that the use of the word . "appeals" in the introduction transforms (2) (b) "requests" , "inter- pretations" , and "decisions" into appeals. In addition, this inter- pretation makes the most sense administratively and is most sym- metrical. _ III. CONCLUSION In summary, my conclusions are as follows: 1. The Board of County Commissioners may decide that appli- cations for Special Use Permits or Conditional Use Permits may be handled by the Planning Commission and the Board of County Commis- sioners. 2. The Zoning Resolution should be amended to delete the reference to Conditional Use Permits in Seciton 9. 1. 3 .B. 3 . The requirements in 30-28-118 (3) of a greater than majority vote in order to overturn a decision of an administrator or grant a variance is substantive in nature and cannot be altered by reso- lution or by an amendment of the Weld County Home Rule Charter. 4 . A vote of greater than a majority is required in order to rule in favor of the Appellant under the provisions of 30-28-118 (2) (a) , (2) (b) and (2 ) (c) , and that the Commissioners may require the concurring vote of six, seven, or eight members of the Board of Adjustment in order to decide in favor of the Appellant. 5. Applications pursuant to (2 ) (b) are probably appeals and that the Commissioners probably cannot decide that a simple majority • . ` • Memo to Tom Dau from Bob Lowenbach Board of Adjustment Page 7 of the members of the Board of n(ljustment is sufficient to sustain the applicant ' s position. J{ Robert Lowenbach Ahaistant County Attorney JRL:ta cc : Vickie Traxler Hello