Table 5-1 list the development application authorized by this land use code, whether public notice is required, and the role of the town review and decision-making bodies.

(Ord. No. 2022-03, § 1(Exh. A), 12-13-2022)

(a)

Purpose. This section describes the standard procedures and rules applicable to all development applications unless otherwise stated in this land use code. Application-specific procedures in section 12-53 through section 12-57 identify additional procedures and rules beyond those in this section.

(b)

Pre-application conference.

(1)

Purpose. The pre-application conference is intended to provide an opportunity for the applicant to meet with town staff to review submittal requirements, review procedures, and applicable Code standards associated with the proposed development.

(2)

Procedure.

a.

The applicant shall submit a request for a pre-application conference to the town on a form prescribed by staff.

b.

Prior to scheduling the pre-application conference, the applicant shall submit the following:

1.

A written description of the project;

2.

Conceptual drawings showing the location, layout, and key elements of the proposed development;

3.

Specific uses, location of uses, and densities proposed;

4.

Proposed construction phasing, if applicable; and

5.

Location of required public improvements, if applicable.

c.

When required or requested by the applicant, staff shall schedule pre-application conferences and notify appropriate staff and the applicant of the time and location of the meeting.

d.

Town staff attending the pre-application conference will identify initial concerns or issues the applicant should address related to the scope, features, and potential impacts of the project as they relate to this chapter. Town staff will also indicate the approval procedures required for the proposed project.

(c)

Application submittal and fees.

(1)

The application shall be submitted to the town on a form established by the town. The applicant bears the burden of demonstrating compliance with application requirements.

(2)

Staff may waive certain submittal requirements in order to reduce the burden on the applicant and to tailor the requirements to the information necessary to review a particular application. Staff may waive such requirements upon finding that the projected size, complexity, anticipated impacts, or other factors associated with the proposed development clearly, in their opinion, support such waiver.

(3)

Application fees shall be paid at the time of submittal according to the type of application on the development review fee schedule. The fee schedule shall be established by resolution of the board of trustees and reviewed periodically.

(4)

In the event staff determines that it is necessary to utilize the services of a consultant not on staff, staff may impose additional fees associated with such outside consultant. Staff shall inform the applicant of the necessity to utilize the services of a consultant and the applicant may choose whether or not to proceed with the application.

(d)

Abandoned applications and withdrawal.

(1)

If an application has not been resubmitted to address staff-noted deficiencies within three months, such application shall be deemed abandoned and all fees forfeited. The applicant may request three additional months to address staff-noted deficiencies.

(2)

After an application has been accepted, the applicant may withdraw the application at any time by submitting a letter of withdrawal to staff. An applicant is not entitled to a refund of application fees for withdrawn applications. However, staff may refund fees not expended during the first round of staff review if the application is withdrawn prior to preparation of any official written comments.

(e)

Minor application revisions. An applicant may revise an application after receiving notice of compliance deficiencies following staff review, or on requesting and receiving permission from the board of trustees after that body has reviewed, but not yet taken action on, the application. Revisions shall be limited to changes that directly respond to specific requests or suggestions made by staff or the board of trustees, as long as they constitute only minor additions, deletions, or corrections and do not include significant substantive changes to the development proposed in the application, as determined by staff. All other application revisions shall be processed as a new application.

(f)

Concurrent review. Where possible without creating an undue administrative burden on the town's decision-making bodies and staff, this land use code intends to accommodate the simultaneous processing of applications for different permits and approvals that may be required for the same development project in order to expedite the overall review process.

(g)

Staff review and decision.

(1)

Department and agency referral review.

a.

Staff shall distribute the complete application to the appropriate staff and other internal and external review agencies.

b.

Such review agencies shall provide comments to staff within ten days following the distribution.

(2)

Staff shall submit recommendations and comments to the applicant.

(3)

If an application is subject to staff review and recommendation per table 5-1, summary table of review procedures, staff shall prepare a written staff report that summarizes the proposal, findings, and recommendations.

(4)

Staff shall submit a copy of the staff report to the applicant and the applicable decision-making body, and shall make the staff report and related materials available for public review at least three calendar days prior to the hearing at which the application is scheduled to be heard.

(h)

Scheduling and notice of public hearings.

(1)

General requirements.

a.

If an application is subject to a public hearing per table 5-1, staff shall schedule the public hearing for either a regularly scheduled meeting or special meeting with the applicable body.

b.

All public hearings required by this land use code shall be preceded by the notices identified in table 5-1. Persons with specific issues or concerns regarding a proposed application are encouraged to contact the town in writing, by phone, or in person prior to the hearing.

c.

The town shall be responsible for the accuracy of and proper publication and posting of notice of the public hearing.

d.

The applicant shall be responsible for mailing notice and maintaining the posted notice once posted on the site by the town.

(2)

Published and mailed notices.

a.

Required published or mailed notices shall:

1.

Identify the application type;

2.

Describe the nature and scope of the proposed project;

3.

Identify the location subject to the application;

4.

Identify the date, time, and location of the hearing being noticed;

5.

Identify where and when the application and associated materials may be inspected; and

6.

Indicate opportunity to appear at the public hearing.

b.

Published notice shall appear in a newspaper of general circulation in the Town at least 15 days prior to the scheduled hearing.

c.

Mailed notices shall be sent by the applicant via first-class mail to all property owners as listed in the records of the county tax assessor's office within 200 feet of the subject property, as measured from property boundaries. Certified mail notice shall be returned to the town.

d.

The applicant shall provide notice by certified mail, return receipt requested, to all mineral estate owners and lessees on the subject property for development applications in accordance with C.R.S. 24-65.5-103. Such notice shall be provided not less than 30 days prior to the initial public hearing, or not less than 30 days prior to the final decision if the application does not require a public hearing. The burden of determining mineral estate owners and lessees shall be on the applicant.

(3)

Posted notice.

a.

Required posted notice shall include at least one sign on the subject property at least 15 days prior to the public hearing. The sign(s) shall be clearly visible from adjacent streets or public rights-of-way and shall remain on the property until after the hearing.

b.

Staff may require additional signs based on access and configuration of the property.

c.

Required posted notice shall:

1.

Identify the application type;

2.

Describe the nature and scope of the proposed project;

3.

Identify the date, time, and location of the hearing being noticed; and

4.

Identify a telephone number for additional information.

(i)

Review and decision.

(1)

General requirements.

a.

The applicable review body shall approve, approve with conditions, or deny the application based on the approval criteria listed in this section. The body may also continue the hearing.

b.

Decisions shall be in writing and shall clearly state reasons for the decision citing the applicable LUC provisions.

(2)

General approval criteria. Decision-making bodies shall review all applications submitted pursuant to this LUC for compliance with the following criteria along with any other application-specific criteria:

a.

Complies with applicable requirements including this land use code, town, state, and federal law;

b.

Consistent with any applicable adopted town plans;

c.

Promotes the public health, safety, and general welfare;

d.

Minimizes or mitigates adverse impacts associated with the application;

e.

Will not result in significant adverse impacts upon the natural environment including air, water, noise, stormwater management, wildlife, and vegetation, or such impacts will be substantially mitigated; and

f.

Will not result in significant adverse impacts upon other property in the vicinity of the subject property.

(j)

Post-decision actions and limitations.

(1)

Effective date of approval. Unless otherwise provided in this LUC, a decision made under this LUC shall be final 15 days from the date of the decision unless, prior to the expiration of that period, an appeal has been filed with the town.

(2)

Appeal. The applicant or an aggrieved party may file a written appeal regarding a decision made under this LUC, clearly stating the reasons for such appeal, within 15 days of the final action.

(k)

Modifications to approvals.

(1)

Development authorized by any approval under this article may incorporate minor changes from the approved plan, permit, or conditions of approval, as appropriate, without the need for a new application; provided, that staff determines that the proposed changes:

a.

Comply with the standards of this LUC;

b.

Are necessary to meet conditions of approval; and

c.

Would not significantly alter the function, form, intensity, character, demand on public facilities, or impact on adjacent properties as approved with the administrative site/architectural plan.

(2)

Any modification of an approved plan, permit, or condition of approval that staff determines does not meet the criteria of this section above shall require a new application that is submitted and reviewed in accordance with the full procedure and fee requirements applicable to the particular type of the original application.

(l)

Expiration of approvals.

(1)

An application approval shall be valid as authorization for the approved activity unless it expires in accordance with expiration time periods provided in this LUC or the approval itself.

(1)

A change in ownership of the land shall not affect the established expiration time period of an approval.

(2)

The original decision-making body may grant extensions of the expiration time period for up to one year, following a written request that explains reasonable cause for such extension, prior to the expiration date. The final approval authority shall determine whether or not there is reasonable cause for the requested extension. Further extensions shall be subject to the approval of the decision-making body for the original petition.

(m)

Limitation on subsequent similar applications. Following denial of an application, the decision-making body shall not decide on applications that are the same or substantially similar within one year of the previous denial. This waiting period may be waived by the decision-making body provided that:

(1)

There is a substantial change to circumstances, or new information available, relevant to the issues or facts considered during the previous application review; or

(2)

The new application is materially different from the previous application.

(Ord. No. 2022-03, § 1(Exh. A), 12-13-2022)

(a)

Applicability. Development review is required prior to the issuance of a building permit and construction of physical improvements. Development review is required for all development except interior alterations or improvements that do not increase parking requirements or alter exterior portions of a building.

(b)

General requirements.

(1)

The requirements of this section shall be in addition to those in table 5-1 and section 12-52 including the criteria for approval for all applications in section 12-52(i)(2).

(2)

During consideration of an application, the town may consider alternative potential conditions, and no discussion of potential conditions shall be deemed an attempt or intent to impose any condition that would violate the state or federal constitutions, statutes, or regulations. Discussions of potential conditions to mitigate the impacts of a development do not reflect actions by the town unless and until the town takes formal action to attach that condition to a development approval.

(3)

All conditions imposed by the town as a part of the approval process shall be reasonably related to the anticipated impacts of the proposed development or land use and to the purposes of this land use code.

(4)

Where mitigation of the impacts of a proposed plan or development requires an applicant to dedicate land or pay money to a public entity in an amount that is not calculated according to a formula applicable to a broad class of applicants, any condition imposed shall include an individualized determination and shall be roughly proportional in nature and extent to the anticipated impacts of the proposed development, as shown through an individualized determination of impacts.

(c)

Minor site plan.

(1)

Applicability. A minor site plan is required for any of the following activities:

a.

Construction of accessory structures of less than 200 square feet;

b.

Construction of a sign, fence, or retaining wall;

c.

Construction of or substantial reconstruction of a deck;

d.

A change in use that involves or requires site improvements;

e.

Any expansion, alteration, or modification of a lawful nonconforming site feature or building;

f.

Expansions, alterations, or modifications that increase the gross floor area of an existing structure by no more than 25 percent; and

g.

The alteration of any vehicular parking area.

(2)

Expiration. Approval of a minor site plan shall be effective for a maximum period of three years unless, upon petition by the petitioner, staff grants an extension due to factors outside of the applicant's control.

(d)

Major site plan.

(1)

Applicability. A major site plan is required for any development that exceeds the minor site plan review thresholds in section 12-53(c)(1).

(2)

Expiration. Approval of a major site plan shall be effective for a maximum period of three years unless, upon petition by the petitioner, staff grants an extension due to impacts on the development outside of the applicant's control, which caused such delay, but not including economic conditions.

(e)

Conditional use permit.

(1)

Applicability. No use classified as a conditional use in table 3-1 may be conducted without first obtaining a conditional use permit under this section. No conditional use shall be conducted except in compliance with all applicable provisions of this land use code and with any conditions upon such conditional use approval.

(2)

Additional criteria. In addition to the criteria in section 12-52(i)(2), applications for a conditional use permit shall also:

a.

Be consistent with the purpose and intent of the zoning district in which it is located;

b.

Be generally consistent with any related use-specific standards;

c.

Be compatible with adjacent uses in terms of scale, site design, and operating characteristics (hours of operation, traffic generation, lighting, noise, odor, dust, and other external impacts); and

d.

Provide adequate assurances of continuing maintenance.

(3)

Expiration. A conditional use permit granted pursuant to the provisions of this section shall run with the land and shall continue to be valid upon a change of ownership of the site or structure that was the subject of the conditional use permit application. Any proposed revisions or changes to an approved conditional use permit application shall be submitted in the same manner, and subject to the same approval process, as the original review.

(f)

Temporary use permit.

(1)

Applicability. No use classified as a temporary use in table 3-1 may be conducted without first obtaining a temporary use permit under this section. No temporary use shall be conducted except in compliance with all applicable provisions of this land use code and with any conditions upon such conditional use approval.

(2)

Expiration.

a.

A temporary use permit shall be valid beginning on the date specified on the permit and shall remain valid for the time period indicated on the permit.

b.

Before the expiration of a temporary use permit, the permittee shall disconnect all temporary uses and structures, and associated property and equipment, and free the temporary use site from all trash, litter, and debris to the satisfaction of staff.

(Ord. No. 2022-03, § 1(Exh. A), 12-13-2022)

(a)

General requirements for all subdivisions.

(1)

Until a final plat of a subdivision has been approved in accordance with these regulations, no division of land either by recording a plat, conveyance, or other similar action which by definition constitutes a subdivision shall be permitted.

(2)

The applicant shall not record a plat unless the plat has been approved by the town. Any offer to sell, contract to sell, sale or deed of conveyance of a major or minor subdivision or any part thereof before a final plat, in full compliance with the provisions of these regulations, has been duly recorded in the office of the county recorder shall be a violation of this land use code.

(3)

All final plats, including amendments thereto, shall be recorded in the county to which the property is located.

(b)

Minor subdivision.

(1)

Applicability. Minor subdivisions shall only be permitted when:

a.

A plat has previously been approved for the property;

b.

The proposed subdivision would create two or fewer lots or creates condominium units within a single plat;

c.

The proposed subdivision would not require land dedication or dedication of public improvements; and

d.

The application is for one of the following:

1.

Boundary or lot line adjustments to an approved final plat including lot line eliminations;

2.

Vacations that do not include improved streets;

3.

Condominiumization of units within an existing building;

4.

A minor change to an approved plat to address engineering or technical constraints with no material effect on the plat and no relocations of streets or rights-of-way; or

5.

Corrections of errors on an approved final plat.

(2)

Plat submittal. Minor subdivisions shall require the submittal and approval of a final plat, replat, condominium plat, or amendment to an existing final plat as applicable. All plats approved as a minor subdivision shall be recorded.

(3)

Additional criteria.

a.

In addition to the criteria in section 12-52(i)(2), applications for a minor subdivision shall also:

1.

Demonstrate that the layout of lots, streets, driveways, utilities, drainage facilities, and other services within the proposed subdivision meets the town's standards related to health and safety and minimizes the amount of land disturbance, maximizes the amount of open space in the development, preserves existing trees/vegetation and riparian areas, protects critical wildlife habitat, and otherwise accomplishes the purposes and intent of this land use code;

2.

Does not result in the creation of lots that cannot be built under this Chapter;

3.

Does not affect a recorded easement without approval from the easement holder;

4.

Provides all required in-lieu fees; and

5.

Will not limit the town's ability to effectively provide facilities or services to all lots involved.

b.

In addition to the criteria above, when a minor subdivision involves a vacation, the application shall also demonstrate that:

1.

No roadway proposed to be vacated would leave any adjoining land without a means of access to another public road; and

2.

A subdivision plat does not involve lots that have been sold or transferred; or, if there have been sales or transfers, no development on any lots in the subdivision and all of the owners agree to the vacation of the plat.

(c)

Major subdivision.

(1)

Applicability. A major subdivision is required for all land divisions that are not eligible for a minor subdivision.

(2)

Preliminary plat.

a.

A preliminary plat shall be required for all major subdivisions that shows the overall character, proposed layout of land, and provisions of facilities.

b.

Additional criteria.

1.

In addition to the criteria in section 12-52(i)(2), applications for a preliminary plat shall also:

i.

Provide lots, roads, driveways, utilities, drainage facilities, and other services that are designed to minimize the amount of land disturbance, maximize connectivity, maximize the amount of open space, and preserve sensitive areas;

ii.

Provide adequate mitigation to areas in natural hazard areas and that proposed uses of these areas are compatible with such conditions;

iii.

Show location of public water and sewer system connections;

iv.

Provide a clear assumption of responsibility for maintaining roads, open spaces, and other public and common facilities in the subdivision; and

v.

If proposed in phases, the plat proposes reasonable phasing for providing required infrastructure.

2.

In addition to the criteria above, when a subdivision involves a vacation, the application shall also demonstrate that:

i.

No roadway proposed to be vacated would leave any adjoining land without a means of access to another public road; and

ii.

A subdivision plat does not involve lots that have been sold or transferred; or, if there have been sales or transfers, no development on any lots in the subdivision and all of the owners agree to the vacation of the plat.

(3)

Final plat.

a.

Following approval of a preliminary plat, a final plat shall be required for all major subdivisions that reflects any changes required at the preliminary plat stage and demonstrates conformance with the requirements of this LUC.

b.

Additional criteria. In addition to the criteria in section 12-52(i)(2), applications for a final plat shall also demonstrate compliance with the approved preliminary plat including any conditions of approval.

(Ord. No. 2022-03, § 1(Exh. A), 12-13-2022)

(a)

Rezoning.

(1)

Applicability. A rezoning is required for all proposals requesting to change the zoning district classification of a parcel of real property to a different zoning district classification.

(2)

Additional criteria. In addition to the criteria in section 12-52(i)(2), applications for a rezoning shall also:

a.

Be consistent with the purposes of the underlying zoning district where the development is proposed;

b.

Ensure that future uses on the subject property will be compatible in scale with uses on other properties in the vicinity of the subject property; and

c.

Be consistent with the Town's economic development goals and objectives to bring positive growth and sustainable revenues to the Town.

(b)

Rezoning to planned unit development (PUD).

(1)

Applicability.

a.

The PUD procedure shall not be used when a conditional use, variance or rezoning to a base zoning district could achieve a similar result.

b.

An application to rezone to PUD may be submitted for any tract of land, or contiguous parcels of land, within any combination of zoning districts, held under single ownership or under unified control.

c.

The PUD shall be overlaid on the existing base district(s).

(2)

Effect of approval. The regulations of this LUC shall remain applicable to areas within a PUD district unless expressly modified by the approved PUD.

(3)

Expiration. A PUD shall remain valid until a PUD is subsequently amended or rezoned to another zoning district.

(4)

Map revision. Following approval of a rezoning to PUD, the official zoning map shall be revised to show the PUD overlay.

(5)

Recording. The PUD plan and zoning amendment shall be recorded with the county clerk and recorder.

(6)

Additional criteria. In addition to the criteria in section 12-52(i)(2), applications for a rezoning to PUD shall also:

a.

Address a unique situation, provide substantial benefits to the town, or incorporate innovative design that achieves a higher quality standard than could otherwise be achieved through strict application of a base zoning district; and

b.

Provide a variety of housing types and densities, if residential is proposed as part of the PUD.

(7)

Minor amendments.

a.

Minor amendments to an approved PUD plan may be approved by staff if the proposed amendments do not:

1.

Change the ratio of residential units to square feet of nonresidential building square footage by more than ten percent.

2.

Increase the number of residential units by more than ten percent.

3.

Increase the gross square footage of nonresidential building area by more than ten percent.

4.

Change the allowed uses listed in the approved PUD plan.

5.

Change the number or location of vehicular access points in such a way that negatively impacts public safety or the flow of traffic into public streets.

b.

Any amendment that is not considered minor shall require the same approval process as the creation of the PUD.

(c)

Land use code text amendment.

(1)

Applicability. The zoning text amendment procedure applies to all proposals requesting to change the text of this land use code.

(2)

Additional criteria. In addition to the criteria in section 12-52(i)(2), applications for a land use code text amendment shall also:

a.

Be compatible with current conditions and the character of current structures and uses in each zoning district;

b.

Promote the most desirable use of land in each zoning district;

c.

Promote the conservation of sensitive environmental features; and

d.

Support responsible development and growth.

(Ord. No. 2022-03, § 1(Exh. A), 12-13-2022)

(a)

Landmark and district designation.

(1)

Relationship to rezoning procedure. Notwithstanding any explicit language stating otherwise, the process in section 12-56 shall apply to the designation of landmarks and historic districts.

(2)

Mapping. Designated landmarks and historic districts shall be mapped as the HP-O district on the official zoning map. References to the HP-O district and designated properties shall be synonymous.

(3)

Application submittal. Every owner of record shall consent to and sign the application for designation.

(4)

Additional criteria. In addition to the criteria in section 12-52(i)(2), applications for the designation of landmarks shall be at least 50 years old and average at least 50 years old in the case of districts and meet at least one of the following criteria:

a.

The landmark or district is associated with cultural, artistic, social, ethnic, economic, or political heritage.

b.

It includes the site of a significant historic event.

c.

It is identified with a person who significantly contributed to the cultural, artistic, social, ethnic, economic, or political heritage.

d.

It portrays a historic era characterized by a distinctive architectural style.

e.

It is identified as the work of an architect or master builder whose individual work has influenced the development of town, county, the State of Colorado, or the United States.

f.

It embodies elements of architectural design, detail, materials, or craftsmanship that represent a significant architectural innovation.

g.

It possesses significant archeological value that has produced or is likely to produce data affecting theories of historic or prehistoric interest.

(5)

Limitation on resubmittal of applications. If an application for designation is denied, applications shall not be considered on a new application that is the same or substantially the same for one year from the date of the denial.

(6)

Removal of a designation.

a.

Designations may be amended or rescinded by the same procedure set forth is this section 12-56.

b.

The Applicant must demonstrate that the designation no longer meets the criteria in this section 12-56.

(b)

Certificate of approval.

(1)

Applicability.

a.

General requirements.

1.

No person shall carry out or permit to be carried out on a designated property any addition, alteration, relocation or demolition of a building or other designated feature without first obtaining a certificate of approval except maintenance shall not require a certificate of approval.

2.

A certificate of approval shall not affect the zoning of the property and the property shall remain in the HP-O district as designated.

(2)

Review criteria.

a.

In addition to the criteria in section 12-52(i)(2), applications for a certificate of approval shall meet the Secretary of the Interior's Standards for Rehabilitation.

b.

In addition to the requirements in section 12-56(b)(2)a, when a certificate of approval includes the relocation of a designated structure, the following additional criteria shall be met:

1.

A structural report submitted by a licensed structural engineer adequately demonstrating that the structure can be moved without significant damage to its physical integrity;

2.

A relocation plan that includes posting a bond, insurance, or other security, approved by the city attorney, sufficient to ensure safe relocation, preservation and repair, if required, of the structure; and

3.

Designated properties should be moved only when there is no feasible alternative for preservation. When a property is moved, every effort should be made to reestablish its historic orientation, immediate setting, and general environment.

c.

In addition to the requirements in section 12-56(b)(2)a, when a certificate of approval includes demolition of part or the entire designated structure, the following additional criteria shall be met:

1.

The structure or portion of the structure proposed for demolition is not structurally sound despite evidence of the owner's efforts to properly maintain the structure;

2.

The structure or portion of the structure being demolished cannot be rehabilitated or reused on site to provide for any reasonable beneficial use of the property; and

3.

The designated structure or portion of the structure being demolished will be replaced with a structure that meets the applicable standards of the HP-O district.

(3)

Amendments.

a.

Staff may approve an amendment to a certificate of approval when the amendment is minor, meets all of the applicable criteria for a certificate of approval and does not significantly alter the design or intent of the original approval.

b.

All other amendments require new review and approval in accordance with this section 12-56.

(4)

Expiration. A certificate of approval shall be valid for two years from the date of approval. If work is not commenced within that time period, the certificate of approval shall lapse, and a new application must be submitted.

(Ord. No. 2022-03, § 1(Exh. A), 12-13-2022)

(a)

Variance.

(1)

Purpose. The variance procedure provides a mechanism to authorize variances from the development standards of this land use code when it is demonstrated that such a variance will not be contrary to the public interest or the spirit of this land use code, where, owing to special conditions, literal enforcement of this land use code will result in practical difficulties or unnecessary hardship.

(2)

Applicability. The variance procedure is required for applications seeking flexibility of a development standard, other than as provided in the minor modification process, from the development standards applicable to the zoning district in which the subject property is located. Applications that are denied a minor modification shall not be eligible for a variance.

(3)

Additional criteria. In addition to the criteria in section 12-52(i)(2), applications for a variance shall also:

a.

Not be injurious to the public health, safety, morals, and general welfare of the community;

b.

Not substantially affect the use and value of the area adjacent to the property included in the variance; and

c.

Sufficiently demonstrate that the strict application of the terms of this land use code will result in practical difficulties in the use of the property, that the practical difficulties are peculiar to the property in question, and that the variance will relieve the practical difficulties.

(b)

Minor modification.

(1)

Purpose. The minor modification procedure is intended to allow relatively small adjustments or deviations from the dimensional or numeric standards of table 4-1 where strict application would result in practical difficulty or undue hardship preventing the use of the land as otherwise allowed by the land use code. Minor modifications are intended to provide greater flexibility when necessary, without requiring a formal zoning amendment or variance.

(2)

Applicability.

a.

A deviation from the requirements in table 4-1 may be proposed as a minor modification.

b.

Deviations under a minor modification may not exceed a ten percent variation of the applicable requirements.

(3)

Additional criteria. In addition to the criteria in section 12-52(i)(2), applications for a minor modification shall also:

a.

Not create a hardship or adverse impacts on adjacent properties unless adequately mitigated;

b.

Not be necessitated by the petitioner's actions; and

c.

Be of a technical nature and required to compensate for an unusual site condition or to protect a sensitive resource, natural feature, or community asset.

(c)

Appeals.

(1)

Appeal of any decision under this land use code shall be held at a properly noticed public hearing.

(2)

In addition to the criteria in section 12-52(i)(2), appeals shall consider any additional applicable criteria to which the decision was initially made under.

(3)

Appeals shall be reviewed for a clear error in the application of the relevant criteria to the application.

(4)

Any decision that has exhausted its remedies under this land use code may be appealed to the district court having jurisdiction.

(Ord. No. 2022-03, § 1(Exh. A), 12-13-2022)

(a)

Purpose. The purpose of this section is to regulate and limit the development and continued existence of uses, structures, lots, signs, and site features that were lawfully established prior to the effective date of this land use code, but that no longer conform to the requirements of this land use code. All such situations are collectively referred to in this section as "nonconformities."

(b)

Requirements.

(1)

Authority to continue.

a.

Nonconformities may continue to be used and occupied, subject to regulations as to the maintenance in this section, or unless such nonconformity is terminated as provided in this section.

b.

Nonconformities shall not be modified in any way that increases the degree of nonconformity.

(2)

Determination of legal nonconformity status. The burden of establishing the existence of a legal nonconformity shall be solely on the owner of the property containing the nonconformity.

(3)

Maintenance. Maintenance of nonconformities are permitted and encouraged; provided, that the maintenance does not increase the degree of the nonconformity. Maintenance includes the following:

a.

Repairs necessary to maintain and to correct any damage or deterioration to the structural soundness of, or the exterior or interior appearance of, a building or structure without expanding the height or footprint of the building or structure, unless compliant with this land use code;

b.

Maintenance of land to protect against and mitigate health and environmental hazards;

c.

Repairs that are required to remedy unsafe conditions; and

d.

Repairs necessary to comply with current building land use code requirements.

(4)

Destruction of a nonconforming structure. A nonconforming structure that has been damaged or destroyed by fire or other causes may be restored to its original condition; provided, that such work is commenced within one year of such event and has been completed or diligently pursued within 18 months of such event.

(5)

Nonconforming lots. A nonconforming lot that was made nonconforming by virtue of enactment of this land use code may be used for construction of a building allowed in the applicable zoning district; provided, that all other zoning district and dimensional standards are met.

(6)

Nonconforming parking. Any parking spaces or access to public rights-of-way lawfully existing on the effective date of this land use code that are made nonconforming by virtue of enactment of this land use code shall be allowed to continue; provided, that any change or expansion of any use or structure shall only be permitted if the additional number of parking spaces required by such change or expansion is provided in accordance with this land use code.

(c)

Illegal nonconformities. An illegal nonconformity exists when:

(1)

A nonconforming structure is destroyed or substantially destroyed or neglected by an intentional act of the owner or an agent without a proper permit. If this occurs, the nonconforming structure shall lose its nonconforming status and thereafter shall be required to be in conformity with existing land use codes. If a nonconforming use was in the destroyed or substantially destroyed structure, the nonconforming use and all site improvements shall lose their nonconforming status and be required thereafter to come into compliance with existing land use codes.

(2)

A use, structure, or site improvement occurs to a nonconformity without being lawfully authorized in accordance with the provisions of this section. Such use and/or structure shall therefore cease all operations until such time that the required plans and/or permits are approved.

(Ord. No. 2022-03, § 1(Exh. A), 12-13-2022)

(a)

Violations. Each of the following activities is a violation of this land use code:

(1)

Any erection, construction, reconstruction, remodeling, alteration, maintenance, expansion, movement, or use of any building, structure, or sign, or development or subdivision of any land, in contravention of any provision of this land use code or any regulation promulgated under this land use code.

(2)

Any development, use, construction, remodeling, or other activity in any way generally inconsistent with the terms or conditions of any permit or approval required to engage in such activity, whether issued under or required by this land use code.

(3)

Each day that a violation occurs or remains uncorrected shall constitute a separate and distinct violation of this land use code.

(b)

Remedies.

(1)

Staff may deny or withhold all entitlements, including forms of authorization to use or develop any land, structure, or improvement, until an alleged violation, associated civil penalty or lien resulting from a previous final order related to such property, use, or development is corrected. This provision shall apply whether or not the current owner or applicant for the permit or other approval is responsible for the violation.

(2)

Whenever any building, structure or site or part thereof is being demolished, constructed, reconstructed, altered, or repaired in violation of this land use code or in a manner that endangers life or property, staff is authorized to issue a stop-work order for the specific part of the work that is in violation or presents the hazard.

(3)

With or without revoking permits, staff may issue an order to stop work on any property on which there is an uncorrected violation of either a provision of this land use code or a provision of an entitlement or other form of authorization issued under this land use code.

(4)

The stop-work order shall be in writing and posted at the site of the work, and shall specify the alleged violations. After any such order has been posted, no work shall proceed on any building, other structure, or tract of land covered by such order, except to correct such violation or comply with the order.

(c)

Penalties.

(1)

Violation of this land use code may be punishable through imposition of a civil penalty as set forth in the town's municipal land use code.

(2)

The town may seek injunctive relief or other appropriate relief in district court or other court of competent jurisdiction against any person who fails to comply with any provision of this land use code or any requirement or condition imposed pursuant to this land use code.

(3)

In any court proceedings in which the town seeks a preliminary injunction, it shall be presumed that a violation of this land use code is a real, immediate, and irreparable injury to the public; that the public will be irreparably injured by the continuation of the violation unless the violation is enjoined; and that there is no plain and adequate remedy at law for the subject land use code violation.

(d)

Abatement. The town may abate any violation of this land use code as follows:

(1)

Before action is taken to abate a violation, a final warning notice shall be posted on the property and served personally or by first class United States mail to the owner of record of the property.

(2)

Unless this notice is appealed to the board of trustees within ten days of the posting of the final warning, the town shall proceed to abate the violation.

(3)

The town shall keep an account of the cost, including incidental expenses, incurred by the town in the abatement of any violation. The town shall forward a bill for collection to the violator and owner of record of the property specifying the nature and costs of the work performed. For purposes of this section, the term "incidental expenses" shall include without limitation the actual expenses and costs to the town in the preparation of the notices, specifications and contracts, work inspection, and interest from the date of completion at the rate prescribed by law for delinquent real property taxes.

(4)

The responsibility for payment of the charges for abatement as set forth in this section shall rest solely upon the owner of the property upon which the abatement occurred. When charges for abatement remain unpaid after 30 days from billing, the town shall record a first and prior lien against the property, to be collected by the county treasurer in the same manner as property taxes.

(e)

Cumulative remedies. The remedies provided for violations of this land use code, whether civil or criminal, shall be cumulative and in addition to any other remedy provided by law, and may be exercised in any order. The exercise of one remedy shall not preclude the exercise of any other available remedy.

(Ord. No. 2022-03, § 1(Exh. A), 12-13-2022)