The Board of Adjustment shall hear and decide appeals from any order, requirement, decision or determination made by the Building Official or any other administrative official charged with the enforcement of this Code. In addition, the Board of Adjustment shall hear and decide all requests for a variance from the requirements of this Chapter. Such variance shall not be granted if it would be detrimental to the public good, create a conflict with the Gilcrest Comprehensive Plan or impair the intent and purpose of this Chapter.

(Ord. 2004-7 §2)

Any aggrieved person of interest may appeal a denial of a building or other development permit, or any order, requirement, decision, interpretation or determination made by an administrative official charged with the enforcement of this Chapter.

(1)

An appeal to the Board of Adjustment shall be made within ten (10) days after denial of a building permit or other development permit, or receipt of a written notice of an order, requirement, decision, interpretation or determination by an administrative official of the Town. Failure to make a timely appeal shall be considered a waiver of the appellant's rights to appeal to the Board of Adjustment.

(2)

The applicant shall file with the Town Clerk a written notice of appeal on a form approved by the Board and pay the filing fee established by the Board of Trustees. The following items must be submitted with the application:

a.

A location map showing the site in relationship to existing features, including streets and other significant topographical or structural features.

b.

A site plan of the property involved in the appeal, drawn to scale on an eight-and-one-half-inch by eleven-inch paper, showing dimensions and all significant features which relate to the appeal.

c.

A copy of a deed, purchase contract or other legal instrument indicating that the applicant has an interest in said property. This shall include a complete and accurate legal description of the property.

d.

A copy or other form of clear identification of the order, requirement, decision, interpretation or determination by the administrative official.

e.

A statement of the relief requested and the legal and factual basis upon which it is sought.

f.

A written statement that demonstrates that the application of the order, requirement, decision, interpretation or determination by the administrative official being appealed would deprive the appellant of rights commonly enjoyed by other properties in the same zoning district.

g.

A written statement that demonstrates that the special conditions or circumstances do not result solely from the action of the appellant.

h.

A list and mailing addresses of all property owners and occupants of property located within one hundred fifty (150) feet of the property in question.

i.

One (1) set of nine-and-one-half-inch by four-and-one-quarter-inch envelopes addressed to each of the property owners and occupants of property identified in Subparagraph (2)h. above.

(3)

The Town Clerk shall forward a copy of the notice of appeal to the Planning staff or other appropriate administrative officer, who shall prepare a record of the action that is being appealed for consideration by the Board of Adjustment.

(4)

Public hearings shall be conducted on all appeals to the Board of Adjustment in accordance with the procedures provided by Section 16-95 below.

(Prior Zoning Ord. §605; Ord. 1995-7 §3; Ord. 2003-11 §3; Ord. 2004-7 §2)

(a)

Any person of interest or an officer or department of the Town may apply to the Board of Adjustment for a variance from the literal interpretation of the provisions this Chapter.

(b)

For a variance request, the applicant shall submit the following to the Town Clerk:

(1)

Land use application form.

(2)

Variance - technical criteria form.

(3)

The applicant shall file with the Town Clerk the required forms and pay the filing fee as established by the Board of Trustees. The following items must be submitted with the application:

a.

A location map showing the site in relationship to existing features, including streets, and other significant topographical or structural features.

b.

A site plan of the property involved in the appeal, drawn to scale on an eight-and-one-half-inch by eleven-inch paper, showing dimensions and all significant features which relate to the request.

c.

A copy of a deed, purchase contract or other legal instrument indicating that the applicant has an interest in said property. This shall include a complete and accurate legal description of the property.

d.

An explanation letter identifying the variance being requested, a citation of the portion of the zoning or subdivision regulations from which relief is requested and explaining what exceptional condition, practical difficulty or unnecessary hardship exists to require the variance. The letter shall also address how the variance, if granted, will not be detrimental to the public good, create a conflict with the Comprehensive Plan or impair the intent and purpose of this Chapter.

e.

A written statement demonstrating that literal interpretation of the provisions of this Chapter would deprive the applicant of rights commonly enjoyed by other properties in the same zone district under the terms of this Chapter. The applicant should also demonstrate that the special conditions or circumstances do not result solely from the action of the applicant and that the variance requested is the minimum that will make possible the reasonable use of the land.

(4)

Provide the Town Clerk with a current list (not more than thirty [30] days old) of the surrounding property owners and occupants of property located within one hundred fifty (150) feet of the property, mineral interest owners of record, mineral and oil and gas lessees for the property and appropriate ditch companies. The applicant shall certify that the report is complete and accurate.

(5)

Provide the Town Clerk with one (1) set of stamped, addressed, certified (return receipt requested) envelopes. The envelopes shall have the Town's address as the return address, and the envelopes shall be addressed to the property owners identified in Subparagraph (4) above.

(6)

The Town Clerk shall forward a copy of the variance request to the Planning staff or other appropriate administrative officer, who shall prepare a report for the Board of Adjustment.

(7)

Public hearings shall be conducted on all variance requests by the Board of Adjustment in accordance with the procedures provided by Section 16-95 below.

(Prior Zoning Ord. §606; Ord. 1995-7 §3; Ord. 2003-11 §4; Ord. 2004-7 §2)

(a)

The Town Clerk shall publish notice of the date and time of the hearing, the property affected (by legal description and address), the relief requested and the name of the petitioner in a newspaper of general circulation within the Town. The hearing may be held no less than fifteen (15) days from the date of advertising.

(b)

In addition to the published notice, the Town Clerk shall send notice of public hearing to the applicant, all property owners of record and/or occupants within one hundred fifty (150) feet of the property in question, all mineral interest owners of record and oil and gas lessees for the property.

(c)

The Town Clerk shall prepare a public hearing notification sign containing notice of the date and time of the hearing, the property affected (by legal description and address), the relief requested and the name of the petitioner. The sign shall be posted by the Town no less than ten (10) days before the hearing. The signs shall be legible from a distance of thirty (30) feet and shall be weather protected.

(Prior Zoning Ord. §607; Ord. 2004-7 §2)

The Board of Adjustment shall make the decision on appeals and variances at a regular meeting of the Board.

(1)

The appellant, or the applicant for a variance, has the burden of proof to establish the necessary facts to warrant favorable action of the Board of Adjustment.

(2)

In the absence of a quorum, the meeting shall be called to order and the hearing rescheduled to a date certain. No additional notice shall be required, nor shall any additional fees be charged to the petitioner for a rehearing caused by the lack of a quorum.

(3)

No continuance of the hearing upon request of the petitioner shall be granted except for good cause. Notice of the rescheduled hearing shall be mailed to all parties in interest. All direct costs incurred by the Town for rescheduling the hearing shall be paid by the petitioner.

(4)

The petitioner may withdraw his or her appeal or variance request at any time prior to the close of the hearing.

(5)

A record of the entire hearing shall be made either by a certified court reporter or by an electronic recording device. A verbatim transcript of the hearing will be made upon request, the requesting party paying the entire cost of producing the transcript. Summary minutes of the hearing shall be prepared. These minutes shall contain a summary of the pertinent testimony offered and the findings of fact and order of the Board of Adjustment.

(6)

The Board of Adjustment shall accept sworn testimony and written documents from all parties that are pertinent to the subject of the hearing. The Board of Adjustment shall have sole responsibility for determining the admissibility of written or sworn testimony.

(7)

The petitioner may be represented by legal counsel or other appropriate persons.

(8)

Upon the completion of the presentation of sworn testimony, the receipt of documentary evidence and comments from the public, the Board of Adjustment shall close the hearing and adjourn to its business meeting for discussion and formulating the decision. The Board of Adjustment shall discuss the merits of the appeal or request in open meeting and cause to be prepared a written findings of fact and order in the matter heard. In matters of complexity, the Board of Adjustment may continue the meeting until a date not more than seven (7) days after the hearing date, to prepare the written findings of fact and orders. The written findings of fact and orders shall be served upon the petitioner by personal service or by certified mail, return receipt requested.

(9)

Any order of the Board of Adjustment shall be in full force and effect upon issuance and shall be binding upon all parties subject to it unless and until it may be found to be contrary to law or its enforcement enjoined by a court of competent jurisdiction. Any appeal of the decision of the Board of Adjustment may be made to the District Court as provided by law; provided, however, that such appeal must be made prior to thirty (30) days following the date of the final action taken by the Board of Adjustment, as provided by Rule 106, Colorado Rules of Civil Procedure.

(Prior Zoning Ord. §607; Prior Zoning Ord. §608; Ord. 2004-7 §2)

(a)

The Board of Adjustment, in hearing an appeal from an interpretation of this Chapter, shall consider:

(1)

The technical meaning of the provision being appealed;

(2)

Evidence of the manner in which the provision has been interpreted in the past;

(3)

The positive or negative impact of the requested appeal on the achievement of stated Town development goals and objectives; and

(4)

The intent of the provision in implementing the Comprehensive Plan.

(b)

In approving a requested interpretation, the Board of Adjustment shall provide a written record of its findings.

(Ord. 2004-7 §2)

(a)

The Board of Adjustment shall apply the following standards to all variance requests:

(1)

Under no circumstances shall the Board of Adjustment grant a variance to allow a use not permissible under the terms of this Chapter in the zone district involved, or any use expressly or by implication prohibited by the terms of this Chapter.

(2)

Relief from the provisions of this Chapter may not be granted when the hardship is brought about solely through the actions of the appellant.

(3)

Relief may not be granted when the result of granting the requested relief is detrimental to the public good or if the relief is contrary to the purpose and intent of this Chapter or the Comprehensive Plan.

(4)

No nonconforming use of neighboring lots, structures or buildings in the same zone district, and no permitted or nonconforming use of lots, structures or buildings in other zone districts, shall be considered grounds for the issuance of a variance.

(b)

In order to grant a variance to this Chapter, the Board of Adjustment shall find that all the following have been satisfied:

(1)

That there are unique physical circumstances or conditions such as irregularity, narrowness or shallowness of the lot, or exceptional topographical or other physical conditions particular to the affected property;

(2)

That because of these unique physical circumstances or conditions, the property cannot be reasonably developed or used in compliance with the provisions of this Chapter;

(3)

That due to such unique physical circumstances or conditions, the strict application of the provisions of this Chapter would create a demonstrated hardship;

(4)

That the demonstrable hardship is not self-imposed;

(5)

That the variance, if granted, will not adversely affect the proposed development or use of adjacent property or neighborhood;

(6)

That the variance, if granted, will not change the character of the zoning district in which the property is located;

(7)

That the variance, if granted, is in keeping with the intent of this Chapter; and

(8)

That the variance, if granted, will not adversely affect the health, safety or welfare of the citizens of the Town.

(c)

The condition of any variance authorized shall be stated in writing in the minutes of the Board of Adjustment with the justifications set forth.

(Ord. 2004-7 §2)