Hearing Process

1. The Chairperson calls the case by number, address, etc. 
2. Everyone in attendance who intends to speak will be sworn in.
3. Those appearing for or against are asked to stand and give their position (in support, in opposition, or there for information), name and address.
4. The Zoning Administrator, through the Assistant City Attorney, is given the opportunity to intervene on behalf of the Community Planning and Development, a right given under the ordinance. Comments as to CPD’s position are sometimes given at this time.
5. If fewer than five members are present, the options are explained.
6. The Technical Secretary of the Board is asked if the premises have been properly posted with the notification sign.  Failure to post or improper posting will result in the hearing being dismissed or rescheduled.  The Technical Secretary of the Board then presents the exhibits made or received in the office of the Board.  
   Example of Exhibit Order"
       (1) The City Action required to initiate the case.
       (2) The sketch of the property made by the office staff.
       (3) The photograph of the notification sign and site taken by staff.
       *Any failure to post the notification sign that requires a rescheduling of the appeal will result in an additional $50.00 fee.
       (4) The Registered Neighborhood Organization Notification Form.
       (5) The Applicant's Statement.
       (6+) Can be plans, previous Board of Adjustment cases on the property, letters, or any other exhibits that are presented.
7. The Applicant is then asked to present the case to the Board on whatever grounds relief is sought for up to 10 minutes (see Tips & Miscellaneous page).
8. The Board & the Zoning Administration may ask questions of the Applicant.
9. Community Planning and Development staff will present their evaluation of the request for up to 10 minutes.
10. The Board may ask questions of Community Planning and Development staff.
11. Any members of the public may then give testimony for up to 2 minutes per speaker.
12. The Board, the Zoning Administration and the Applicant may ask questions of the members of the public. 
13. Closing statements are then permitted.
14. The case is closed. The Board will deliberate and make a motion.

The Board: The hearing is a semi-formal proceeding before the Board. The Board meets Tuesday mornings to hear and decide appeals. It is improper to contact any of the Board Members concerning an appeal outside of the public meeting, and to do so may result in one or more of the members recusing.

Representation before the Board

Every case filed with the Board is in the name of the landowner(s)* (See note below). All landowner(s) must be represented at the hearing. They may be represented either by attending in person or by a properly authorized representative or agent. Anyone attending the hearing will be sworn in and will affirm that all statements provided will be the truth. The Board will require anyone representing the landowner(s) to swear and affirm that they have the authorization of the landowner to proceed with the application to the Board.

NOTE: All landowner(s) must be represented at the hearing, with the exception of third party appeals of administrative decisions. In these instances, the landowner(s), if any, will be informed that the appeal has been filed and will be given the option to participate in the hearing if they so choose. However, they will not be required to attend the hearing or be a party to the appeal.

Legal Counsel: You are not required to have an attorney present either to file your case or to go to the hearing. You are welcome to have an attorney present if you prefer. For complex or highly technical issues, an attorney or other design, construction, or planning professional may be helpful.

Demeanor: It should be remembered that because of the inherently stressful nature of these proceedings, emotions often run high and patience is strained. Therefore, a calm attitude, courtesy, and respect will contribute greatly to a smooth and judicious hearing. Since this is a quasi-judicial body, conduct and apparel appropriate to a Court of Law is proper (no men’s hats, no applause, no outbursts).

Burden of Persuasion: The applicant has the burden of convincing the Board of their right to relief. Any determination or finding of the Zoning Administrator shall be presumed to be correct until evidence is introduced which would support a contrary determination or finding. Therefore, the Burden of Proof is on the Applicant to prove his or her appeal or demonstrate their right to relief.

Note: Your application and testimony should be based upon the criteria of the ordinance section under which you are requesting relief and you should be prepared to elaborate upon each point.

The Vote: Four out of five votes are required to grant relief for Appeals of Administrative Decisions.  Three out of five votes are required to grant relief in all other matters.  In the event one Board member is absent, you may request a postponement of the hearing or you may waive the right to a five member Board and have four members hear the appeal. If the absent member’s vote is necessary to provide the final vote for approval, he or she may listen to the tape recording of the testimony and cast his or her vote.

Requests for Reconsideration

1. A request for reconsideration may be filed by an Appellant, Applicant, or intervenor within fourteen (14) days after a final written decision of the Board and must be on the form available on the Board's website (Reconsideration Request Form(PDF, 209KB)), and shall include the following:

        (a) that new and material evidence is now available that, despite the movant's due diligence, was not available when the hearing closed;
        (b) the reason the new and material evidence could not have been presented before the hearing was closed, and
        (c) the new and material evidence or an offer of proof of the new and material evidence.

2. The Board shall provide Appellants, Applicants, and intervenors, including CPD, fourteen (14) days to respond in writing to a request for reconsideration and then shall consider the Parties' submissions on the next supplemental agenda.

3.  After review of a request for reconsideration and any responses, the Board may, by four (4) affirmative votes, grant a rehearing.

4.  Any request for reconsideration that is granted shall be subject to a fifty percent (50%) reinstatement fee under Article XIII.  Appellants, Applicants, and the intervenors appearing at the previous hearing(s) shall be notified in writing of the new hearing, and the notices required in Article VI shall be repeated.

5.  The filing of a request for reconsideration does not stay or extend the time to file an appeal from a Board decision.

Modifications

1. A request for modification of a variance may be filed by an Applicant within three (3) years after the final written decision of the Board granting the variance at issue.

2. The Board shall provide CPD fourteen (14) days to respond in writing to the request for modification and then shall consider the Parties' submissions on the next supplemental agenda.

3. The Board may modify a variance it previously granted, in whole or in part, if the Board determines that such modification is minor and is in keeping with its original decision.

4. The Board may, upon a motion receiving four (4) affirmative votes, modify the original decision.  However, no such modification shall prejudice the rights of any person who has in good faith acted upon such a decision before it was modified.  If the request for modification is denied, the Applicant may apply for a new case before the Board without prejudice.

Appeals to District Court
Any person aggrieved by a decision of the Board may appeal, under Rule 106, Colorado Rules of Civil Procedure, the decision to the Denver District Court within twenty eight (28) days after the date of the filing of the Board’s decision in the office of the Board (i.e., the date that the decision was made).

A Registered Neighborhood Organization may file an appeal if the property concerned falls within the neighborhood it represents (see Section 41-19 D.R.M.C.).

The Board strongly urges you to adhere to the following (Failure May Jeopardize Your Appeal):

1. When you file a case with the Board, provide the office of the Board with an Improvement Location Certificate (a.k.a. Survey Plot Plan) or an accurate, scaled site plan of the property. This will be used to prepare a sketch of your property and the surrounding area, reviewed by each Board member during the hearing.
2. On all major construction, such as new structures or second story additions, submit scale drawings of a plot plan and elevations. It is best if these drawings are done by a professional architect, engineer, or designer. They do not need to be final construction drawings, but they do need to be to scale, have accurate dimensions, and show the style and finish material of the proposed structure. Any relief granted will be "per plans filed". The Board sends its copy of the plans to the Zoning Department. Make sure the plans show what you intend to build! If you apply for a building/zoning permit with plans that do not match the ones given to the Board at the hearing, you will probably be denied and sent back to the Board for a "modification".
3. On second story additions or two-story homes, it is advisable to have a solar access (light/shadow) study showing any light impact on the property to the north. If there is opposition to your appeal, this study may be crucial.
4. We suggest that you talk to your neighbors before you post the notification sign.
   (a) Show them your plans.
   (b) Explain exactly what your appeal is about.
   (c) Try to obtain approval of the plans in writing by letter or petition from the owners. They can also sign the plans to show that they have seen and approved of the proposal. Be sure they give their addresses. If any of these owners oppose your appeal, the Board will consider the circumstances, including any appearances, letters, or petitions of opposition.
5. Contact your Registered Neighborhood Organization(s) (R.N.O.) as soon as you get your notice. Try to set up a meeting with them to explain your case and obtain their approval in writing.
6. Posting of Your Notification Sign is Critical!! All hearings with the Board are open to the public. One of the main ways we inform the public about our hearings is with a large Public Notification Sign. We will create the sign and drop it off at the property. The sign is required to be up for 14 full days prior to the hearing. The Posting Date will be listed on your application.

Assistance: The staff of the Board may render limited assistance in the filing of the appeal, but may NOT give any legal advice or make any predictions on the outcome of a case.