ARTICLE 7

BOARD OF ADJUSTMENT

7.1       Establishment of Procedure

The Board of Adjustment (the “B of A” herein) is hereby established, the members of which shall be appointed by the Board of County Commissioners. The B of A shall consist of five (5) members of which not more than two (2) may be current members of the Planning Commission. One (1) member of the B of A shall be appointed for one (1) year, two (2) members shall be appointed for two (2) years and two (2) members shall be appointed for three (3) years. After the initial appointments, all terms shall be for three (3) years. In addition to the regular members of the B of A, the Board of County Commissioners may appoint two (2) associate members for staggered three (3) year terms. In the event that any regular member is temporarily unable to act due to absence from the County, illness, interest in a case before the B of A or any other cause, his or her place may be taken, during such temporary disability, by an associate member who shall enjoy full voting privileges. Vacancies which may occur from time to time on the B of A shall be filled by the Board of County Commissioners. Any member of the B of A may be removed for cause by the Board of County Commissioners upon written charges and after a public hearing.

7.2       Proceedings of the Board of Adjustment

(A)      The B of A shall adopt rules necessary to the conduct of its affairs and in keeping with the provisions of these Regulations. The meetings shall be held at the call of the Chairman or, in his or her absence, the Acting Chairman. The Chairman may administer oaths and compel the attendance of witnesses by application to the district court. The court, upon proper showing, may issue subpoenas and enforce obedience by contempt proceedings. All meetings shall be open to the public but the B of A may go into executive sessions, by majority vote, solely for the purpose of debating the veracity of conflicting witnesses.

(B)       The B of A 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. It shall keep records of its examinations and other official actions, all of which shall be a public record and immediately filed in the office of the Board of County Commissioners.

7.3       Hearings, Appeals and Notices

(A)      Appeals to the B of A may be taken by any person aggrieved by the inability to obtain a Land Use and Construction Consent or by any administrative decision based upon or made in the course of the administration or enforcement of the provisions of these Zoning Regulations. The time within which such an appeal must be made and the form or other procedure relating thereto shall be as specified in the supplemental rules of procedure adopted by the B of A.

(B)       The person appealing an administrative action shall file with the B of A a notice of appeal specifying the grounds therefore and the record of the action upon which the appeal was taken will be immediately forwarded to the B of A. The person appealing shall file, with the notice of appeal, a reasonable nonrefundable processing fee fixed by the Board of County Commissioners and an assurance that he or she will also pay the total actual County costs of the preparation of the record and the appeal.

(C)       Upon receipt of the notice of appeal and record, the B of A shall fix a time for hearing of the appeal. A notice of said hearing shall be published in a newspaper of general circulation within the County at least fourteen (14) days prior to the hearing date and written notice shall be sent by first class mail to the appealing party and all parties given written notice in the original proceeding.

(D)      At the hearing, any party may appear in person or by agent or attorney. The B of A may affirm, reverse (wholly or partly) or may modify the order, requirement, decision or determination appealed and may amend any order, requirement, decision or determination of the Land Use Administrator or the Board of County Commissioners upon the concurring vote of four (4) of the five (5) members of the B of A.

7.4       Proceedings for Appeal from the Board of Adjustment

(A)      Any person applying to the courts for a review of any decision made under the terms of this Article 7 shall apply for review within 30 days after the date of decision and shall be required to pay the cost of preparing the record and a transcript of the B of A proceedings, and the application for review shall be in the nature of certiorari under Rule 106(a)(4) of the Colorado Rules of Civil Procedure. Mineral County may elect to appeal any adverse decision of the District Court.

(B)       An appeal stays all proceedings unless the Land Use Administrator or other county officials from whom the appeal was taken certifies to the B of A that by reason of facts stated in the appeal, the stay would, in his opinion, cause imminent peril to life or property. In such case, proceedings shall not be stayed, other than by restraining order which may be granted by the B of A or by a court of record, with notice to the agency from whom the appeal was taken.

7.5       Powers of the Board of Adjustment

            The B of A shall have the following powers:

(A)      To hear and decide appeals where it is alleged by the appellant that there is error in any order, requirement, decision or refusal made by an administrative official or agency based on or made in the enforcement of these Zoning Regulations.

(B)       To grant or deny variances from the provisions of these Zoning Regulations when the strict application of these Regulations would result in peculiar and exceptional practical difficulties to or exceptional and undue hardship upon the owner of such property, so long as the difficulties or hardships were not created or caused by the owner or his or her predecessors in title. The B of A may authorize, upon an appeal relating to said property, a variance from such strict application so as to relieve such difficulties or hardship, provided such relief may be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of the Zoning Regulations. However, the B of A may not grant variances from the provisions of these Zoning Regulations covering the use, development or density of land or the provisions governing planned unit developments. In granting any variance, the B of A may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of these Regulations. The B of A may grant a variance only if it makes findings that all of the following requirements, insofar as applicable, have been satisfied:

(1)       That there are unique physical circumstances or conditions such as exceptional irregularity, narrowness or shallowness of a specific piece of property at the time of the enactment of these Regulations, or exceptional topographical, other physical conditions or other extraordinary and exceptional situation or condition peculiar to the affected property.

(2)       That the unusual circumstances or conditions do not exist throughout the neighborhood or district in which the property is located.

(3)       That because of such physical circumstances or conditions, the property cannot reasonably be developed in conformity with the provisions of these Zoning Regulations.

(4)       That such unnecessary difficulty or hardship has not been created by the applicant.

(5)       That the variance, if granted, will not alter the essential character of the neighborhood or district in which the property is located nor substantially or permanently impair the appropriate use of development of adjacent property.

(6)       That the variance, if granted, is the minimum variance that will afford relief and is the least modification possible of the application of the Zoning Regulations that are in question.

(C)       To hear and decide such other special questions not inconsistent with these Regulations as authorized by resolution of the Board of County Commissioners.