How Do I Get a Zoning Variance in Colorado?

October 17, 2022 | Bill Henry

If you own real estate, you may wish to change a property’s zoning if the existing zoning does not allow your intended or desired use of the property. This article answers some frequently asked questions about what it takes to accomplish a zoning variance.

 

Local governments use zoning ordinances to dictate how specific parcels of land can be developed. Zoning ordinances divide a geographic area into zones or districts. Each zone or district has a unique set of standards for land uses and development regulations. These standards aim to strike a balance between the general health, safety, and welfare of the public and property owners’ rights to use their land in their best interest. source: Colorado Department of Local Affairs


“A variance is defined as an authorization for the construction or maintenance of a building or structure or for the establishment or maintenance of a use of land, which is prohibited by a zoning enactment.” Sclavenitis v. Cherry Hills Village Bd. of Adjustment & Appeals, 751 P.2d 661, 662, 1988 Colo. App. (Colo. Ct. App. January 21, 1988)

A zoning variance is any deviation from the standard zoning regulation. In Colorado, counties, cities, and towns have boards of adjustment to hear and evaluate requests for zoning variances. These boards have the power to modify land use regulations subject to certain limitations.


As a homeowner, you may need a variance if you want to build a structure higher than the maximum building height limitation. If you own commercial property, you may need a variance from the zoning regulations or “sign code” as it applies to your business signage.


Single-family zoning restricts the building of new homes in a certain residential area to single-family detached homes. In other words, not townhomes or apartment complexes.


A board of adjustment consists of five members, each of whom serves a three-year term. Colo. Revised Statutes § 31-23-307

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).

Additionally, 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).


Each municipality has its own set of rules regarding how and when you can apply for a zoning variance. Where you apply depends on where you live. If your property is located in an “incorporated” area, such as a city or town, it will be regulated by the municipal zoning code for that city or town. Unincorporated properties will fall under county zoning jurisdiction.

For example, in Douglas County, you must begin the zoning variance application process by first requesting a pre-application meeting with the Planning Services Division of Community Development. You then may submit your variance application, along with the required documents. County officials will then set a public hearing date. (It is important to note that you must submit your variance application at least 30 days before the scheduled hearing.)
During the next step, your assigned planner will prepare referral packets containing an application, narrative, plot plan or survey, referral response request, and any additional information. Referral packets are sent to agencies that may be affected by the request, such as the fire district, building division, public works engineering, HOA, health department, utility company, etc. Usually 10 to 14 days, the referral period provides an opportunity for various agencies to comment on the application. source: Douglas County website
Next, at least 14 days prior before the hearing, you must complete the required public notice (signs and letters). You also must provide the planner with a Certificate of Mailing and Affidavit of Sign Posting as proof that this has been completed seven days prior to the hearing.
The final step is the public hearing with the board of adjustments. The planner will present a staff report, attachments, and presentation at the hearing. You should be prepared to present pertinent information and answer any questions about the proposed variance.

After the property owner submits the zoning variance request, the board of adjustments will post signs on the property notifying residents that a variance request is pending. These signs must include the date, time, and place of the hearing for public review and opinion.

If you want to publicly object to the variance’s approval, you might want to speak to the property owner applicant first. Maybe some adjustments or accommodations can be made to the requested use variance.

If the property owner refuses, you might talk to other neighbors who also oppose the variance and band together. One way is to circulate a petition against the zoning variance request around the neighborhood and send the signed document to the board of adjustments. If enough people publicly object to a zoning variance, the board may deny the request.


The appeals process starts with an application by “any person aggrieved by his inability to obtain a building permit or by the decision of any administrative officer or agency based upon or made in the course of the administration or enforcement of the provisions of the zoning resolution.” C.R.S. § 30-28-118

On five-member boards, four members must vote to reverse any order, requirement, decision, or determination of any such administrative official or agency or to decide in favor of the appellant. C.R.S. § 30-28-118

Administrative appeals are rarely successful. Read how Robinson & Henry helped one client win his appeal for a short-term rental license.


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