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HomeMy Public PortalAboutOrdinance 401 Amending the Fraser Municipal Code & Zoning Regulations to Restructure the Board of Adjustment by Making Planning Commission Members Ex-Officio Memmbers of the Board of Adjustment TOWN OF FRASER ORDINANCE NO. 401 Series 2012 AN ORDINANCE AMENDING THE FRASER MUNICIPAL CODE AND ZONING REGULATIONS TO RESTRUCTURE THE BOARD OF ADJUSTMENT BY MAKING PLANNING COMMISSION MEMBERS EX-OFFICIO MEMBERS OF THE BOARD OF ADJUSTMENT, ADOPTING CHANGES TO THE PROCEDURES AND STANDARDS FOR APPEALS AND VARIANCE APPLICATIONS TO THE BOARD OF ADJUSTMENT, AND MAKING OTHER CONFORMING AMENDMENTS TO THE MUNICIPAL CODE. WHEREAS, pursuant to Colorado Revised Statutes, Title 31, Article 23, Part 3, the Board of Trustees of the Town of Fraser is authorized to adopt and amend zoning regulations applicable within the Town; and WHEREAS, the Board of Trustees is also authorized to provide for the appointment of a Board of Adjustment to hear and decide appeals and requests for variances under the zoning regulations; and WHEREAS, the Board has received and reviewed proposed amendments to the zoning regulations and other provisions of the Municipal Code, which would restructure reconstitute the Board of Adjustment for the Town of Fraser by designating the members of the Planning Commission as ex-officio members of the Board of Adjustment, providing for voting and alternate members, and amending certain provisions relating to the procedures and standards for appeals and applications for variances to the Board of Adjustment; and WHEREAS, a public hearing on such amendments was held by the Board of Trustees of the Town of Fraser, Colorado, pursuant to notice of said public hearing properly published as required by the Fraser Municipal Code and Section 31-23-304, Colorado Revised Statutes, as amended; and WHEREAS, the Board of Trustees finds and determines that the proposed amendments are in the best interests of the public health, safety and general welfare of the citizens, residents and taxpayers of the Town of Fraser; and that all applicable requirements of the Code of the Town of Fraser and state statutes have been met with respect to the adoption of said amendments. NOW THEREFORE, BE IT ORDAINED BY THE BOARD OF TRUSTEES OF THE TOWN OF FRASER, COLORADO, AS FOLLOWS: PART 1: ADOPTION OF AMENDED ZONING REGULATIONS AND AMENDMENT OF TOWN CODE. 1_1 Chapter 2 (Administration), Article 7 (Board of Adjustment), of the Code of the Town of Fraser, Colorado (herein sometimes referred to as the "Municipal Code") is hereby amended in its entirety by the adoption of the amended regulations set forth in Exhibit "A" attached hereto and incorporated herein by this reference. 1_2 Chapter 16 (Zoning), Article 12 (Board of Adjustment), of the Municipal Code is hereby amended in its entirety by the adoption of the amended regulations set forth in Exhibit "B" attached hereto and incorporated herein by this reference. 1_3 Chapter 2 (Administration), Article 6 (Planning Commission), Section 2-6- 40 and Section 2-6-80 are hereby amended to read as follows [Note: additions are shown in bold underlined print; deletions are shown as ofroleothrn print]: Sec. 2-6-40. Residency. All members of the Planning Commission shall be bona fide residents of the Town, and if any member ceases to reside in the Town, his or her membership on the Planning Commission shall immediately terminate. All members of the Planning Commission shall serve as such without compensation. The members appeiRted by the Mayer shall hold Re o+her BeaFd of AdjUStmeRt or Appeals GUGh members shall be ev_offiGio members of- the Bear-d of s as provided by this Gede. Sec. 2-6-80. Responsibilities. (a) The Planning Commission may prepare such plans and regulations for adoption by it and the Board of Trustees as may now or hereinafter be authorized by the laws of the State or requested by the Board of Trustees and shall act in an advisory capacity to the Board of Trustees when requested by the Board of Trustees or required by the state statutes or the ordinances of the Town. Wa OF ffi@aAIII,_J - 2 - 1_4 Chapter 16 (Zoning), Article 1 (General Provisions), Section 16-1-50 and Section 16-1-70 are hereby amended to read as follows [Note: additions are shown in bold underlined print; deletions are shown as --t-k print]: Sec. 16-1-50. Planning Commission. (a) The Planning Commission as established in Chapter 2, Article 6 of this Code shall be responsible for the implementation of this Chapter, and shall act in an advisory capacity to the Board of Trustees in those instances where these regulations call for review and recommendation by the Commission. (=e) (b) The Planning Commission and/or Town staff shall also have the authority to issue development permits as set forth in Article 4 of this Chapter. Sec. 16-1-70. Enforcement. This Chapter shall be enforced by the Town Manager or his or her designee by the Board of Trustees or by any resident or property owner of the Town. No oversight or dereliction on the part of the Town Manager or on the part of any official or employee of the Town shall legalize, authorize or excuse the violation of any of the provisions of this Chapter. PART 2: PENALTY CLAUSES. The following section of the Fraser Municipal Code contains penalty clauses applicable to violations of the above provisions, and such section, although not amended, is herewith set forth in full: Sec. 1-4-10. General penalty for violation. It shall be unlawful for any person to violate, disobey, omit, neglect, refuse or fail to comply with or resist the enforcement of any provision of this Code; and where no specific penalty is provided therefor, the violation of any provision of this Code shall be punished by a fine not exceeding one thousand dollars ($1,000.00), by imprisonment for a term not exceeding one (1) year, or by both such fine and imprisonment. Each day such violation continues shall be considered a separate offense. PART 3: SEVERABILITY. If any section, subsection, sentence, clause or phrase of this Ordinance is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this - 3 - Ordinance. The Town of Fraser hereby declares that it would have adopted this Ordinance, and each section, subsection, clause or phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses and phrases thereof be declared invalid or unconstitutional. PART 4: EFFECTIVE DATE. This Ordinance shall take effect thirty (30) days after passage, adoption and publication thereof as provided by law. PART 5: PUBLICATION. This Ordinance shall be published by title only. READ, PASSED, ADOPTED AND ORDERED PUBLISHED BY THE BOARD OF TRUSTEES AND SIGNED THIS 5th day of DECEMBER, 2012. Votes in favor: 7 BOARD OF TRUSTEES OF THE Votes opposed: TOWK-0-T TOW -0-T FRASER, COLORADO Votes abstained: BY: r Pegg i , Mayor r z ATT3 ( SEAL ) Lu Berger, Town CI Published in the Middle Park Times on December 13, 2012. - 4 - EXHIBIT "A" TO ORDINANCE NO. ARTICLE 7 Board of Adjustment Sec. 2-7-10. Creation; Membership (a) There is hereby created a Board of Adjustment, which shall consist of five (5) voting members and two (2) alternates. Members of the Planning Commission shall serve as ex officio members of the Board of Adjustment, in the following capacities: (1) The Trustee appointed to the Planning Commission by the Board of Trustees and the four (4) non-Trustee Planning Commission members shall serve as regular voting members of the Board of Adjustment; and (2) The Mayor and the Trustee appointed to the Planning Commission by the Mayor shall serve as alternate members of the Board of Adjustment. Alternate members may participate in Board of Adjustment proceedings, including acting as Chairperson, but shall not vote in such proceedings except as provided in Subsection (b) of this Section. The Chairperson of the Planning Commission shall also serve as Chairperson of the Board of Adjustment. (b) In the event that any regular member is temporarily unable to act, owing to absence from the town, illness, interest in a case before the board or any other cause, his place may be taken during such temporary disability by an alternate member who shall then enjoy full voting privileges. If only one regular member is absent, the Chairperson shall designate the alternate member who shall act in place of the absent member, or in the absence of the Chairperson, the acting alternate member shall be chosen by vote of the remaining Board members. Sec. 2-7-20. Powers and Duties. (a) The Board of Adjustment shall have all of the powers provided by Sections 31- 23-301 and 31-23-307, Colorado Revised Statutes, except as limited or modified by the provisions of this Code. (b) Notwithstanding any other provision of this Code, the Board of Adjustment shall have no authority to grant use variances of use modifications under the zoning regulations or other regulations of the Town. (c) The Board of Adjustment shall have the following duties: - 1 - (1) To meet at the call of the Chairperson or by his/her request or by the request of the building official, town planner, or other town official or member of town staff, or upon the request by any party wishing to appeal the decision of the same, as provided by this Code and state statutes. (2) To adopt any rules necessary to transact the Board of Adjustment's business or to expedite its functions or powers so long as they are not inconsistent with the provisions of the applicable state statutes and the Municipal Code, and provided further, that such rules and any amendments thereto must be approved by the Board of Trustees before taking effect. (3) To hear and decide upon appeals of decisions of town officials or staff relating to the zoning regulations and upon applications for variances or adjustments to requirements of such zoning regulations pursuant to the provision of this Code, (4) To keep minutes and records of the proceedings of each meeting which shall be filed in the office of the Town Clerk or other official designated by the Town Clerk, which shall be of public record. (5) To permit the public to attend and be heard at all of its meetings. (6) To perform such other duties as may be delegated to it by the provisions of this Code. (d) Matters coming before the Board of Adjustment may be considered on the same date as any regular, special or adjourned meeting of the Planning Commission. Sec. 2-7-30. Quorum; Voting Requirements. (a) At all meetings of the Board of Adjustment, the presence of four (4) members shall constitute a quorum of the transaction of business. (b) The concurring vote of four (4) members of the Board of Adjustment shall be required to overturn or modify decisions made by the building official, town planner or other town official or staff upon appeal to the Board, or to grant an application for a variance or adjustment to the requirements of the zoning regulations or any other application within the jurisdiction of the Board. Any other matters shall require a majority vote of the members present at a meeting at which a quorum is in attendance. - 2 - EXHIBIT "B" TO ORDINANCE NO. ARTICLE 12 Board of Adjustment Sec. 16-12-10. Jurisdiction. (a) The Board of Adjustment is constituted as provided in Chapter 2, Article 7 of this Code and its jurisdiction includes authority for hearing appeals and granting of variances under the provisions of the zoning regulations contained in this Chapter. (b) As provided in Chapter 2, Article 7, the Board of Adjustment has no authority to grant use variances or use modifications from the regulations contained in this Chapter. Sec. 16-12-20. Appeals. (a) The Board of Adjustment shall hear and decide appeals from and review any order, requirement, decision, or determination made by any administrative official charged with the enforcement of any provision of this Chapter. (b) Notice of such appeal shall be in writing, specifying the grounds thereof, which shall filed with the administrative officer or official from whom the appeal is taken within the time prescribed by the rules adopted by the Board. Failure to file a notice of appeal within the prescribed time shall constitute a waiver of the right to appeal. (c) Upon receipt of the notice of appeal, the officer or official from whom the appeal is taken shall transmit to the Town Clerk all documents constituting the record upon which the action appealed from was taken, and the Clerk shall provide the same to the Board. (d) The Board or its designee shall fix a reasonable time for the hearing of the appeal and give due notice thereof to the parties. Upon hearing, any party may appear in person or by agent or attorney. The board of adjustment may reverse or affirm, wholly or partly, or may modify the order, requirement, decision, or determination appealed from and shall make such order, requirement, decision, or determination as in its opinion ought to be made in the premises and to that end has all the powers of the officer or official from whom the appeal is taken, subject, however, to the vote requirements specified in Section 16-12-40 hereof. (e) Where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the regulations contained in this Chapter, the Board of Adjustment has the power, in passing upon an appeal, to vary or modify the application of such regulations relating to the construction or alteration of buildings or structures, so that the spirit of the ordinance is observed, public safety and welfare secured, and - 1 - substantial justice done; provided, however, that the grant of such a variance will only be considered if the request therefor is included in the notice of appeal and the notice requirements and other criteria specified in Section 16-12-30 of this Code are satisfied. (f) An appeal stays all proceedings in furtherance of the action appealed from, unless the officer or official from whom the appeal is taken certifies to the Board, after the notice of appeal is filed with him, that by reason of facts stated in the certificate a stay would, in his or her opinion, cause imminent peril to life and property. In such case proceedings shall not be stayed other than by a restraining order which may be granted by the Board of Adjustment or by the district court on application, on notice to the enforcement officer or official from whom the appeal is taken and on due cause shown. (g) The Board of Adjustment shall render its decision on an appeal within a reasonable time, which decision shall be made or confirmed in writing and delivered or mailed to each party to the appeal. Sec. 16-12-30. Variances. (a) The Board of Adjustment shall have the power to grant variances from the provisions of this Chapter, subject to the voting requirements specified in Section 16- 12-40 hereof. Further, the Board may grant a variance only if it finds that all of the following conditions are present: (1) There are unique physical circumstances or other conditions peculiar to the affected property, such as exceptional topography or irregularity, narrowness or shallowness of lot; (2) The unique physical circumstances or other conditions do not exist throughout the neighborhood or district in which the property is located; (3) The unique physical circumstances or other conditions, or any other hardship complained of, have not been created by the applicant; (4) Because of the unique physical circumstances or other conditions, the property cannot be reasonably developed in conformity with the provisions of this Chapter; (5) The variance, if granted, will not alter the essential character of the neighborhood or district in which the property is located, or substantially or permanently impair the appropriate use of adjacent conforming property; (6) The variance, if granted, is the minimum variance that will afford relief and is not detrimental to the public good or to the purpose, intent and spirit of this Chapter or the Town comprehensive plan. - 2 - (b) In granting any variance, the Board of Adjustment has the authority to attach such reasonable conditions as it deems necessary to protect the general welfare and implement the purposes of this title. (c) The following procedures shall apply to the Board's consideration of variance requests: (1) All variance requests shall be submitted to the Board of Adjustment in writing. (2) Every variance application shall indicate what provisions of this Chapter are involved and what relief is sought by the applicant. (3) The applicant shall set forth the grounds upon which the variance is being sought. (4) The Board or its designee shall fix a reasonable time for a public hearing on the variance application. (5) Notice of said hearing shall be published once in a newspaper of general circulation within that part of the County where the property is located at least fourteen (14) days prior to the hearing date. (6) Written notice of said hearing shall be mailed by certified mail, return receipt requested, at least fourteen (14) days prior to the hearing date to the owners of the property within one hundred (100) feet of the property in question. (7) Preparation of and payment of all notices shall be the responsibility of the applicant. (d) No grant of a variance shall be complete or effective unless and until the Board of Adjustment has adopted a written resolution approving the variance, which resolution shall identify the property for which the variance is granted, specify the terms of the variance and any conditions approved by the Board, and state specifically the exceptional conditions, practical difficulties or unnecessary hardships involved or other grounds for granting the variance. A copy of such resolution, certified by the Chairperson or other Town staff, shall be recorded in the office of the Grand County Clerk and Recorder to provide notice to persons subsequently acquiring any interest in the property. - 3 - Sec. 16-12-40. Voting Requirements The concurring vote of four (4) members of the Board of Adjustment shall be required to overturn or modify decisions made by the building official, town planner or other town official or staff upon appeal to the Board, or to grant an application for a variance or adjustment to the requirements of the zoning regulations contained in this Chapter. Sec. 16-12-50. Appeals from the Board of Adjustment Every decision of the Board of Adjustment shall be subject to review by certiorari by the District Court, and as provided by law. Such appeal shall be filed not later than thirty (30) days from the final action taken by the Board of Adjustment. Such appeal may be taken by any person aggrieved or by an officer, department, board or bureau of the Town. Sec. 16-12-60. Fees All appeals or applications to the Board of Adjustment shall be accompanied by payment of a fee as set forth in Appendix A to this Code for each separate appeal or variance application submitted. Said fee shall not be refunded, notwithstanding that the applicant has withdrawn such appeal or application or that the same is denied by the Board of Adjustment. - 4 -