Board of Adjustment Agenda and Packet 2011 06 15

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From: Sam Light [mailto:SLight@Ikdpc.com] Sent: Thursday, May 26, 2011 12:49 PM To: Gavin McMillan Cc: Troy Russ: Malcolm Fleming Subject: RE: Board of Adjustment Gavin, Thank you for providing us the opportunity to comment on the letter from Chairman Jasiak discussing the potential for Code amendments allowing more flexibility in the application of variance criteria. We have set out below some legal pros and cons of having stringent variance criteria as compared to flexible criteria, and some comments on whether one form or the other tends to heighten legal risks. If you would like to discuss the comments below or would like us to provide further information for the Board of Adjustment ("Board") and/or assist in a surveying effort, please let me know. From a legal perspective, one of the pros of having stringent and mandatory variance criteria is that applicants for variances will have, in advance of submitting an application, clear notice of the specific standards and requirements that will be applied by the Board. Moreover, clear standards will help the Board to consistently review applications and will help to ensure that all applicants are treated equally. Finally, certainty in the legislative criteria to be applied will allow the Board to readily focus its deliberations on the relevant criteria, which will allow the Board to more efficiently and effectively make and issue decisions that are supported by the record developed before the Board. This lessens the risk that a decision will be set aside by a court because of an insufficient record or insufficient findings. The law in this area is that a record of proceedings before a Board of Adjustment "must contain details of the evidence presented and proper grounds and reasons to support its decision." Murray v. Board of Adjustment, Larimer County, 594 P.2d 596 (Colo. App. 1979), citing Gaunt v. Board of Appeals, 327 Mass. 380, 99 N.E.2d 60 (1951). Further, stringent variance criteria will prevent the granting of too many variances. If one assumes the general zoning rules are as desired, it follows that the bar for relief from the rules should be high. Stated another way, boards of adjustment should exercise considerable caution in granting variances because numerous variances will prevent achievement of the general zoning purposes of protecting property values and securing the orderly development of the community. Murray v. Board of Adjustment. Larimer County, 42 Colo. App. 113, 594 P.2d 596 (Colo. App. 1979). Moreover, "[v]ariances should not be used as a way to avoid the normal processes of amending zoning" legislation. Id. (citations omitted.) Stricter and mandatory variance criteria will reduce the likelihood that the Board will overstep its power in granting variances for invalid reasons, which would usurp the power of the City Council to amend its zoning regulations. However, a con of having too stringent of variance criteria is that it may be difficult for a Board to ever grant a variance. Variances serve an important purpose of allowing