HomeMy WebLinkAbout1986 Board of Adjustment and Appeals HandbookI
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BOARD of ADJUSTMENT
and APPEALS
I Jo 3/?~.
(..___)
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(...___)
( )
ENGLEWOOD .COLORADO
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This Handbook of the Englewood Board of Adjustment and
Appeals has been prepared through the conscientious endeavors of
the following Board members and City staff:
Board of Adjustment and Appeals Members:
Ronald H. Fish, Chairman
Howard Brown, Vice Olairrnan
Kenneth Ferguson
Roger Gage
Chester Halligan
Lois Lighthall
Donald Seymour
Staff:
Nancy N. Reid, Assistant City Attorney
Beverly J. Brizee, Paralegal
Dorothy A. Romans, Advisor
Mary Alice Rothweiler, Planner I
Sheryl Rousses, Recording Secretary
3/86
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TABLE OF CONTENTS
I. INTRODUCTION •
II. MEMBERSHIP
1. Appointment and Qualifications of Members
2. Removal and Vacancies
III. RULES OF PROCEDURE
1. Officers
2. Quorum
3. Meetings
4. Notice
5. Special Meetings
6. Attendance
7. Voting Requirements
8. Conflicts of Interest
9. Jurisdiction
10. Appeal Procedures
11. The Calendar
12. Final Disposition of Cases
13. Zoning Appeals
14. Adoption of Rules
15. Rights of Applicants
16. Public Record
IV. HEARING POLICY AND PROCEDURES •
A. Hearing Policy
B. Procedures Outline
.Meeting Procedures
.Hearing Preliminaries
.Public Hearing
.Closing the Public Hearing
.Deliberations
.Findings of Fact
.Further Meeting Procedures
V. GENERAL GUIDELINES FOR USE IN DECISION MAKING •
VI. POWERS AND DUTIES •
1. Duties Described in the Charter
2. Variance from Housing Code
3. Variance from Comprehensive Zoning Ordinance
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VII. APPEAL FROM BOARD'S DECISION •
VIII. CHARTER, ORDINANCES AND STATUTES
Art. VIII, Pt. III, Home Rule Charter •
1-10-2 et seq., Englewood Municipal Code 1985
16.2 et seq, Comprehensive Zoning Ordinance •
18-8-101 et seq., Colorado Revised Statutes •
Variances
IX. APPLICANT INFORMATION
X. CITY ORGANIZATION AND OTHER COMMISSIONS AND BOARDS
City Organization Chart
Commissions and Boards
Board of Adjustment and Appeals
Board of Career Service Commissioners
Election Commission
Firemen's Pension Board
Library Board
Parks and Recreation Commission
Planning and Zoning Commission
Policemen's Pension Board
Water and Sewer Board
XI. CITY ZONING MAP
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I. INTRODUCTION
The City Charter provides in Article VIII, Section 53, that
Boards and Commissions shall be appointed by the Council and have
such powers and perform such duties as are required by the Charter
or by ordinance. Initial appointments by the Council shall specify
the term of office of each individual in order to achieve
overlapping tenure. All members shall be subject to removal by the
appointing authority.
Article VIII, Part III, Section 59, of the Home Rule Charter
provides for the creation of the Board of Adjustment and Appeals to
be comprised of qualified tax-paying electors of the City.
Section 60 of the same Article provides for the powers and
duties of the Board and states that the Board shall exercise its
authority in accordance with State Statutes, except as otherwise
provided in the Charter.
These rules and regulations are adopted pursuant to 16.2-8 d
Englewood Municipal Code 1985.
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II. MEMBERSHIP
1. Membership in the Board of Adjustment and Appeals shall
consist of seven (7) members appointed by Council, for overlapping
terms of four (4) years. Members shall be qualified tax-paying
electors, residents of the City at least one (1) year immediately
prior to the date of their appointment, and shall hold no other
office or position in the City Administration. If any member
ceases to reside in the City, his membership shall immediately
terminate. Art. VIII, Part III, Sec. 59, Charter.
2. Members may be removed by the appointing authority.
3. Council shall make appointments to fill vacancies for any
unexpired terms.
4. The City Manager shall provide a recording secretary for
the Board. Art. VIII, Sec. 53, Charter.
5. The City Manager shall designate a staff advisor for the
Board. Such staff member shall be from Planning Division (pursuant
to Administration Procedures) •
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III. RULES OF PROCEDURE
Officers
1. At the February meeting of each year, the Board shall
elect a chairman to preside at meetings during the ensuing year and
a vice chairman to preside at meetings during the absence or
disability of the chairman. In the absence of both the chairman
and the vice chairman, the member of the Board designated by the
majority shall preside. The Board shall operate in accordance with
Roberts Rules of Order unless it is in conflict with these rules.
2. The chairman, subject to these rules, shall decide all
points of order or procedure, unless otherwise directed by a
majority of the Board in session at the time.
3. The recording secretary shall be appointed by the
appointing authority and shall sign all documents or communications
from the Board, "By Order of the Board of Adjustment and Appeals."
Officers and Meetings
1. The Board of Adjustment and Appeals shall choose its own
chairman and vice chairman from its membership to serve for a term
of one (1) year, with the provision for re-election. The Board
shall operate in accordance with Roberts Rules of Order unless it
is in conflict with these rules.
2. Regular meetings of the Board of Adjustment and Appeals
shall be held on the second Wednesday of each month beginning at
7:30 p.m., provided, however, if the second Wednesday of the month
falls on a holiday, or for other good cause, the Board will convene
the following Wednesday. Date and time for meetings are set by the
Board. Notice of change of date shall be published in the official
newspaper of the City of Englewood in time for at least one publi-
cation of such change in date. A business session of the Board may
be held prior to hearings and executive session after hearings or
on call of chairman or motion of members of the Board.
3. Special meetings and hearings shall be held at the call
of the chairman and at such other times as a majority of the
members of the Board may request. All members shall be notified by
telephone or in writing of any such special meetings.
4.
public.
All regular meetings and hearings shall be open to the
(Charter Art. VIII, Sec. 53)
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5. The quorum for the Board of seven (7) members shall be
five (5). When only a quorum is present; a concurring vote of four
(4) members shall be necessary to reverse any order, requirement,
decision or determination of any administrative official or to
decide in favor of the applicant on any matter upon which the Board
is required to pass. When six or seven members of the Board are
present, a concurring vote of five members shall be necessary to
affect the above. (16.2-9 Comprehensive Zoning Ordinance)
When there are abstentions, the quorum is reduced by the number of
abstentions.
6. When a specific future meeting has been set for taking
action on a proposal in whicq it is necessary to inspect a certain
location, the members of the Board shall, if at all possible, view
the location prior to the specified meeting.
7. The members of the Board shall attend the meetings in
person.
8. The Board shall keep minutes of its proceedings and show
the vote taken. It shall also keep records of its examinations and
other official actions, and such records shall be filed in the
office of the City Clerk (Charter, Art. VIII, Part III, Sec. 60).
9. No member of the Board shall vote upon any appeal or
variance in which he may have a personal or financial interest, in
which case, he must disqualify himself.
10. An appeal to the Board of Adjustment and Appeals may be
taken by any aggrieved person or by any officer, department, board
or commission of the City of Englewood. Such appeal shall be taken
within thirty (30) days after the date of the decision or notice,
or, in the case of placarding a housing unit, seventy-two (72)
hours from the time of placarding, by filing with the secretary for
the Board of Adjustment a proper form of appeal specifying the
grounds therefor. (8-2A-3 EMC 1985; 16.2-8 Comprehensive Zoning
Ordinance)
11. Other appeals may be taken from:
a. Building Contractor's License Denial, Review (5-7-5B
EMC 1985)
b. Electrical Contractor's Certificate Suspension,
Revocation or Denial (5-7A-6B EMC 1985)
c. Auto Wrecking and Junkyards, 5-10-9, EMC 1985,
Variances; Modifications
d. Burglary Prevention, Appeal from Intrusion
Detection Device Requirements (7-4-9 EMC 1985)
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e. Building Code (8-2A-3 EMC 1985)
f. Fire Code (8-2E-8 EMC 1985)
g. Housing Regulation (9-1-9~1); Appeal Notice or
Order
h. Housing Regulations (9-1-9-3 EMC 1985)
i. Streets and Sidewalks (ll-3A-4 EMC 1985);
Appealing Decision of Public Works
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Appeal Procedures
Cases before the Board
1. Every appeal to the Board shall name the owner and agent
of the affected property on the forms specifically provided and
shall include the date required in such forms, so as to supply all
the information (including such plans or plats as may be necessary)
required for a clear understanding of the case and intelligent
action by the Board.
2. Any person making appeal to the Board shall deposit at
the time of appeal a sum determined by the City Council as
necessary to pay for the reasonable cost of such appeal.
3. At the time of filing matters of variances, the appellant
shall be furnished wording for a sign not less than twenty-two
inches by twenty-eight inches (22" x 28"), with lettering not less
than two inches (2") high, to be installed four feet (4') above
ground level. Such notice shall state the date, place, and nature
of hearing and shall be posted conspicuously for fifteen (15) days
immediately prior to the hearing and notice published in the
official newspaper of the City of Englewood, at least once, ten
(10) days prior to the hearing. (16.2-10 Comprehensive Zoning
Ordinance)
The Calendar
Each case filed in the proper form, with the required data,
shall be numbered serially and shall be placed on the Recording
Secretary's calendar. The calendar numbers shall begin anew on
January 1 of each year and shall be hyphenated with the number of
the year, i.e., #1-70.
Final Disposition of Cases
1. Every decision of the Board on any case shall be by
motion.
2. The final disposition of an appeal before the Board of
Adjustment and Appeals shall be in the form of a motion, either
sustaining, reversing, or modifying the order, requirement,
decision, or determination from which appeal is taken.
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3. The Board may dismiss appeals before them for failure of
the applicant or his representative to complete fully all required
questions on the application or failure -to comply with the
requirements of these rules, or for failure to the applicant or his
representative to appear at the scheduled hearing.
4. No appeal dismissed or denied can be considered again
except:
a. on motion to reconsider the vote; or
b. on a request for a rehearing.
No request to grant a rehearing can be entertained unless such
request be filed in the office of the Board within thirty (30) days
from the date of the original decision on the case, or unless new
evidence is submitted in writing which could not have been
presented at the previous hearing. If, on motion of a member of
the Board and adopted by affirmative votes of four of a quorum of
five members, or five affirmative votes of six or seven members
present, the request for a reconsideration or rehearing is granted,
the case shall be put on the calendar for reconsideration or
rehearing and the parties appearing in the original case notified
in writing or by telephone of date of rehearing.
The Board may, on the motion of a member, review any decision
that it has made and may reverse or modify such decision, but no
such review shall prejudice the rights of any person who has acted
in good faith upon such decision before it is reversed or modified.
Zoning Variances and Appeals
1. Only in a specific case will the Board hear an applica-
tion for a variance from the course prescribed by the Zoning
Ordinance or an appeal from a determination made by the Department
of Community Development on the ground that the proposed plan or
use is contrary to the provisions of the Zoning Ordinance.
2. No appeal shall be entertained unless it is filed within
thirty (30) days after the date of the action of the Department of
Community Development. Said appeal must be filed with the Board in
a proper form and specify the grounds therefor with data and plans
pertinent to the case.
3. The Board shall not be required to hold hearings on
proposals which have been denied within the previous twelve (12)
calendar months unless new evidence pertaining to the case is
submitted in writing by appellant.
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4. Ex piration of Va r iance. Any variance granted by the
Board shall automatically expire within one hundred eighty (180)
days from the date it was granted, or within such other time as the
Board may prescribe, unless a building permit for the action which
was the subject of the variance is obtained within such period of
time and work started or the approved use implemented. Extensions
of time may be granted for good cause shown, but only if an
application for the extension is made prior to the expiration of
the variance. (16.2-8 f Comprehensive Zoning Ordinance; 8-1-7 EMC
1985)
Adoption of Rules
1. Amendments to these Rules of Procedure may be made by the
Board of Adjustment at any regular meeting upon the affirmative
vote of four members of a quorum of five or with the affirmative
vote of five with six or seven members present, and copies of such
amendments shall be filed with the City Clerk.
2. The suspension of any Rule of Procedure not in conflict
y1ith ordinance may be ordered at any meeting by unanimous vote of
members present.
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RIGHTS OF APPLICANTS
1. All interested parties have the right, insofar as
possible, to have the members of the Board of Adjustment and
Appeals free from personal interest or a compromising contact on
quasi-judicial matters heard by them. At the commencement of
hearing, any member of the Board of Adjustment and Appeals who has
a substantial interest in the subject matter of the Board of
Adjustment and Appeals matter to be heard, or who has been unable
to avoid a prehearing contact with the applicant, any interested
party, or staff member of the City with respect to the subject
matter of the zoning or rezoning matter to be heard shall reveal
such substantial interest or such prehearing contact. If such
interest or contact impairs the member's ability to vote on the
matter, the member shall so state and shall abstain therefrom to
the end that the proceeding shall be fair and shall have the
ap pearance of fairness. The staff report on each case is avail-
able to all pa~ties and shall not constitute objectionable pre-
hearing contact.
2. All interested parties have the right to a hearing
conducted with professionalism and decorum. The members of the
Board of Adjustment and Appeals should listen to the witnesses'
testimony and ask relevant questions pertaining to the matter at
issue. Members should refrain from arguing with or exchanging
comments with the witness during testimony or offering advice. The
Board members must be impartial. If a member's vote will be
colored by his or her personal relationship or knowledge of the
applicant, that member should abstain.
PUBLIC RECORD
Clarity of Transcript. If a case before the Board is to be
litigated, a transcript of the meeting must be made from the tape
recording of .the proceedings. All comments made by the Board
members while seated become part of the public record and will be
reported in the transcript of hearing. Members should be careful
not to talk while another member is speaking so that the person
preparing the transcript can distinguish what is being said.
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IV. HEARING POLICY AND PROCEDURES
A. HEARING POLICY
All quasi-judicial hearings shall be conducted under
procedures defined to ensure all interested parties due process of
law and shall, in all cases, provide for the following:
1) The administration of oaths to all parties or witnesses
who appear for the purpose of testifying upon factual
matters. (1-10-1-7 EMC 1985, Swearing in.)
2) The right to be represented by counsel.
3) The right to present and rebut testimony and evidence.
4) The right of a party in interest to cross examine other
persons giving testimony, provided that:
a) such right is asserted at the meeting in which the
· person is giving testimony;
b) such right is asserted at the first available
opportunity.
5) A record of the hearings, whether by electronic or
stenographic reproduction. Any party who submits
evidence or testimony shall be entitled to listen to
the electronic reproduction of the proceedings at
reasonable times, places and circumstances and shall
be entitled to a copy of the transcript of the
proceedings, or any portion thereof, upon payment of
the required fees.
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B. PROCEDURES OUTLINE
1. Meeting Procedures.
.Call to Order:
.Roll Call:
• Quorum:
OR
• Votes Required:
The regular meeting of the Englewood
Board of Adjustment and Appeals is now
called to order. The Board is author-
ized to grant or deny a variance and
hear appeals by Part 3, Section 60,
of the Englewood City Charter.
The Secretary will please call the
roll.
A quorum of members is present •
A quorum is not present.
*If there are 6 or 7 members present •••
There are members
present; therefore, five affirmative
votes will be required to grant a
request.
*If 5 members are present
There are five members present;
therefore, four affirmative votes will
be required to grant a variance •
• Approval of Minutes:
We will now consider the minutes of
the last meeting.
*Entertain motion to approve or approve with
corrections.
*Receive a second to motion.
It has been moved by and
seconded by that the
minutes of the last meeting be approved
(with the following correction). All
those in favor say "Aye", opposed "Nay"
The minutes are approved as written (or
with the following corrections).
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2.
.Findings of Fact:
We will now consider the Findings of
Fact from -the last meeting.
*Entertain Motion to approve (or to approve with
corrections) •
* Receive a Second.
• Continued Cases:
It has been moved by
and seconded by ~~~~~~~~-t~h.--a-=-t
the findings in Case(s) No(s). and
be approved (with the following
corrections) •
All those in favor say "Aye" ••••
opposed •••• "Nay".
The Findings of Fact in Case(s) No(s).
and are approved as written
(or with the following corrections) •
Are there any continued cases?
*If so, start wherever the Board was when it
adjourned the previous meeting.
HEARING -PRELIMINARIES •
• The Chairman explains the procedure that is
followed at the administrative hearings:
We will have the staff identify the
request. The applicant may then
present evidence in support of the
request. Finally, others who wish to
speak in favor of or in opposition to
the request may do so •
• Announce opportunity to be heard:
In order to ensure that everyone has
the opportunity to speak, those who
desire to speak at the hearing should
(raise their hand) -or-(sign the pad)
so that time can be allotted accord-
ingly. If you are represented by
counsel, please identify both yourself
and counsel.
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.The Chairman announces agenda item:
3. PUBLIC HEARING.
Case No. ,. · has come before the Board
of Adjustment and Appeals for hearing.
The Public Hearing regarding Case No.
is now open. The Board is author-
ized to grant or deny a variance by
Part 3, Section 60, of the Englewood
City Charter.
.verification of Posting:
(I have) or (do we have) verification
of publication and posting of the
subject property.(?)
**********************************
[Oath given by Recording Secretary:]
[Please raise your right hand. Do you swear or affirm to ]
[tell the truth, the whole truth, and nothing but the truth ]
[before the City of Englewood Board of Adjustment and Appeals)
[so help you God?]
************************************
NOTE: Attorneys need not be sworn in unless they are
testifying on their own behalf.
Staff members need be sworn in only once. If they
testify at more than one hearing, they need be
reminded only that they are still under oath.
.The Staff Presentation:
Will the Staff please give your name
and position with the City, and the
Secretary wi l l administer the oath.
Please identify the request.
Are there any questions from Board
members?
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.Applicant's presentation:
The applicant may come forward to
testify in this case.
Please give your name and address to
the Secretary who will administer the
oath.
You may now present the evidence in
support of your request.
Are there any questions from the
Board?
.Proponents' statements:
Are there other persons present who
wish to speak in favor of this request?
*If there are several, look at list or hands and
choose one at a time. Or, if all agree, a
spokesman may be chosen.
Proponent may come
forward to testify in this case.
Please give your name and address to
the secretary and be sworn in.
*If there is testimony:
Are there any questions from the Board?
*Repeat for all proponents.
.Opposition Presentation:
Are there persons present who wish to
speak in opposition to this request?
*Same procedure as above.
.Recall Witness:
Does the Board wish to recall any
person who has given testimony?
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*If so, recall and remind them that they are still
sworn to tell the t;uth.
.Rebuttal, Cross-examination:
Does Applicant wish to make a statement
in rebuttal? (or ask questions of the
witnesses?)
*The Chairman has the power to stop any extended
rebuttal when statements become duplicated.
*Applicant must be allowed to cross-examine
witnesses if he wishes at the time they are
testifying.
.Staff Rebuttal:
I would ask that the Staff Report be
made a part of the record of this
hearing. Does the Staff wish to make
additional comments?
4. CHAIRMAN CLOSES THE PUBLIC HEARING:
5. DELIBERATIONS ON HEARINGS.
What is the Board's pleasure in this
matter?
.Motion to: (choices)
.Make a decision without discussion; -or-
.Open discussion before the Public; -or-
.Close the discussion before the Public; -or-
.Recess or executive session; -or-
.Continue the consideration to a date certain; -or-
.Table; -or-
• Reop~n the hearing; -or-
.Grant or deny the variance.
.Second •
• vote.
.Recording Secretary announces the number of persons
voting in favor of, in opposition to, or abstaining.
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.Upon hearing the result of the vote, the Chairman
rules on the Motion.
.Motion and Vote.
.Motion •
• Second.
*If the Board votes to make a decision.
A Motion may be made: to approve, to
conditionally approve, or to deny the
request.
*The Motion is to be made in the
Aff irmat1ve,
The Board will entertain a Motion for a
decision.
It was moved by and seconded
by that . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The members of the Board will now vote
on the motion and the Secretary will
lock in but not report the results of
the vote at this time.
6. FINDINGS OF FACT.
The Members will now give their
findings in this matter.
*All five criteria must be mentioned in the
Findings of Fact. It doesn't matter if each
person has all five so long as all are
mentioned by the end of the vote. (See pages
49 and 58 of this Handbook) If they have all
been mentioned before a Member votes, that
Member may "concur" with the reasoning of the
other Board Members. There are four condi-
tions for Sign Code variance. (See pages
48 and 57 of this handbook.)
The Secretary will report the results
of the vote.
*Report of Secretary to the Chairman.
*Chairman: members have voted
in the affirmative and the request is
granted/denied.
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*Tell applicant to contact the Planning
Division staff for any necessary information.
(Repeat same procedure for each case starting with No. 3)
7. FURTHER MEETING PROCEDURES •
• Unscheduled visitors •
• Board's Choice.
.Staff Choice •
• Adjournment.
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V. GENERAL GUIDELINES FOR USE IN DECISION MAKING
In general, the situations that will need to be acted on by
this Board are those where:
1. Through no fault of the owner of a piece of land, it is
of such size, shape, topography, or has such other natural
configuration that he would not be able to strictly conform to the
zoning requirements.
2. The special requirements of an individual owner are such
that he should be allowed to have some small adjustment to the
requirements of zoning.
3. The use an owner may wish to make of his building,
structure, or land may not be clearly enumerated in the zoning and
some clarification needs to be made.
4. A zoning boundary line or interpretation of a statement
in the text may not be clearly understandable and interpretation is
needed from the Board.
Many other additional types of cases will be found as the
Board operates. But there will always be those who, warranted or
not, will try to usurp for themselves more than their neighbors or
the rest of the community has asked for in the way of special
privileges or exceptions to the law. Thus, the members of the
Board must be:
1. Persons who will evaluate fairly all cases brought before
them;
2. Persons having no special interest that would benefit
from their being on the Board;
3. Persons understanding thoroughly the principles of zoning
and having a general working knowledge of the zoning text and map
under which they are operating.
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How to analyze Variance Requests:
Variances and requests for interpretation will be found to
fall into different categories. Following is a general classifi-
cation list and a brief method for analyzing them as a guide for
Board of Adjustment. These are not all of the types of requests
that will be received, but the general reasoning that should be
applied to each type:
Dwelling Unit Size
Height
Should not be granted unless as an alteration to an existing
undersized dwelling.
Would it not be better to change the height requirements of
the zoning, rather than grant a height exception?
This type of request should be limited to unusual types of
construction or buildings that are not common to the area.
Landscaping
Requirements should not be reduced unless it is established
that extreme hardship exists.
Loading
Variations in off-street loading requirements for commercial
or industrial uses should not be made except in very unusual
circumstances.
Lot Coverage
Should rarely be granted unless lot is unusually small.
Lot Size
Could the owner not purchase additional adjacent property?
Would the variance in lot size also mean additional variances
later in yards, etc.?
Parking
Do not allow reductions below that required unless there are
very unusual circumstances.
Could additional property be acquired for parking?
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Signs
What about traffic movement around the area?
Many requests may be expected but few should be granted.
Well designed signs, meeting requirements of the zoning,
should be sufficient in most instances.
Uses Not Listed
Requests for uses not already listed should be handled as
amendments to the zoning and not as Board cases. However,
where the interpretation of a use description is concerned,
the Board may be called on to interpret whether a proposed
use falls within the classification of a listed use-by-right.
Window Requirements
An important health requirement. Should not be varied unless
existing construction prevents meeting requirements.
Yard Requirements
Could the building be rearranged on the lot?
Would it block light and air from the adjacent property?
Would the building be in the way of road widening?
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VI. POWERS AND DUTIES
Article VIII, Section 60, of the Home Rule Charter defines
the duties of the Board of Adjustment and Appeals as follows:
The Board shall keep minutes of its proceedings, show the
vote taken, keep records of its examinations and other
official actions. Every order, requirement, decision or
determination of the Board shall be filed in the off ice of
the City Clerk. The Board shall have power to hear and
determine appeals from refusal of building permits; make
special exceptions to the terms of the zoning regulations in
harmony with their general purpose and intent; authorize
variance from the strict application of regulations in such
situations and subject to such limitations as may be set by
ordinance. The findings and decisions of the Board shall be
final, subject only to judicial review.
The Board shall exercise its authority in accordance with
State Statutes, except as otherwise provided in this Charter.
APPEAL FROM DEVELOPMENT CODE REGULATIONS
(Uniform Building Code, Uniform Fire Code
Housing Regulations)
1. Any person aggrieved by any notice or order issued
pursuant to the provisions of the Codes (Uniform Building Code,
Uniform Fire Code) may appeal the same to the Board within thirty
(30) days from the date of receipt of the notice of any alleged
violation, or within seventy-two (72) hours from the time of
placarding of any unit by presenting written notice of such appeal
to the Recording Secretary.
2. In the determination of any such appeal, the Board of
Adjustment and Appeals is hereby granted the authority to
interpret, construe and apply the provisions of the Codes. No
person shall have the right to assert any claim against any City
employee or against the City of Englewood arising out of the
enforcement of the provisions of the Codes, unless such claim has
first been submitted to the said Board of Adjustment and Appeals in
the manner as herein provided.
3. The Board may authorize, upon appeal in specific cases
and subject to terms and conditions fixed by the Board, changes
from the terms of the Codes as will not adversely affect the public
health when, owing to exceptional and extraordinary circumstances,
literal enforcement of applicable provisions wil l result in
unnecessary hardship to the appellant. The burden of proof shall
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be upon the appellant to show by clear and convincing evidence
that:
a. The changes will not substantially or permanently
injure the appropriate use of the other portions of the dwelling
or property involved, or any other property; and
b. The changes will be in harmony with the spirit and
purpose of the Codes; and
c. The changes will protect, preserve, and promote the
physical and mental health of the people of the City of Englewood
in the same manner and to the same extent as would literal
enforcement of the provisions applicable to each particular case.
In no event shall any changes granted by the Board constitute, or
be construed as a precedent, ground or cause for any other
variation or modification by the Board. The Board's power to vary
or modify shall be strictly construed. The concurring vote of five
(5) members of the Board shall be necessary to reverse any order,
requirement, decision or determination of the Chief Building
Inspector or to decide in favor of granting a variation or change
from the strict application of the provisions of the Codes. (If
there is only a quorum present, the concurring vote of four (4)
members shall be necessary.)
The Board may designate one or more of its own
members to act as a Hearing Examiner; however, this procedure may
only be used when an appeal from the Housing Code is made.
If no appeal is taken, the notice issued by the
Director of Community Development or his designee shall become a
final order. Any such final order of the Board may be enforced in
any Court of competent jurisdiction, after the time for compliance
with such order has elapsed.
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VARIANCE FROM THE COMPREHENSIVE ZONING ORDINANCE
A request for a variance from the Comprehensive Zoning
Ordinance is considered only at a quasi-judicial hearing.
The petitioner shall make application to the Recording
Secretary within thirty (30} days from the date of the decision of
the Building Official being appealed.
The application form shall be completed giving necessary
pertinent information, plot plans and building plans, if necessary,
and contain the required fee.
The secretary shall assign a case number, give a time, date
and place of hearing; give wording for sign to be posted on the
property; direct public notice thereof in the designated official
newspaper of the City.
The Board shall have the jurisdiction and power:
1. To hear and decide appeals from and to review any order,
requirement, decision or determination by any employee of the
Department of Community Development in the enforcement of this
Ordinance, and to hear and decide all matters referred to it, or
upon which it is required to pass under this Ordinance or any
amendment hereto. Appeals to the Board may be made by any person
aggrieved by the interpretation or decision in the interpretation
of this Ordinance. (16.2-1 a. Comprehensive Zoning Ordinance}
2. To reverse or affirm, wholly or partly, or to modify any
order, requirement, decision or determination of an employee of the
Department of Community Development and to make such order,
requirement, decision or determination as in its opinion ought to
be made and, to that end, shall have all the powers of the enforc-
ing agent. (16.2-8 a. (2) Comprehensive Zoning Ordinance)
3.' Public notice of time and place and purpose of such
hearing shall be given by one publication in the official newspaper
of the City at least ten (10) days before such hearing. (16.2-8 a.
(3) Comprehensive Zoning Ordinance)
a. No variation or modification of any provision of this
Ordinance shall be authorized except after public hearing thereon.
Public notice of time, place and purpose of such hearing shall be
given by one publication in the official newspaper of the City at
least ten (10) days (Note: in conflict with 1-10-1-6 EMC 1985)
before such hearing, and by posting the property affected for not
less than fifteen (15) consecutive days prior to said hearing.
(16. 2-8 b. (1) (a) Comprehensive Zoning Ordinance)
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b. There shall be substantial hardship in applying the
strict letter of such provisions, provided that no such variation
or modification heretofore or subsequently authorized or existing
shall constitute or be construed as a precedent, ground, or cause
for any other variation or modification by the Board, and that such
power to vary or modify shall be strictly construed as specifically
enumerated within the jurisdiction of the Board.
c. In the matter of granting variances, the Board shall
first find that all of the following conditions are present:
(1) No variance or modification of any provisions of
the Ordinance shall be authorized except after public
hearing thereon. Public notice of time and place and
purpose of such hearing shall be given by one
publication in the official newspaper of the City at
least ten (10) days before such hearing, and, where
appropriate, by posting of the property affected for
not less than fifteen (15) consecutive days prior to
said hearing.
(2) In passing upon variances, the Board of
Adjustment may vary the application of the
regulations set forth in the Zoning Ordinance only if
the Board finds that:
(i} By reason of exceptional narrowness,
shallowness or shape of a specific piece of property
on the date this Section takes effect or by reason of
exceptional topographic conditions or other
extraordinary and exceptional situation or condition
of the piece of property, and the strict application
of the regulation would result in peculiar and undue
practical difficulties for the owner of the property.
(ii} The variance, if granted, will observe the
spirit of the Zoning Ordinance, secure the public
safety and welfare, and achieve substantial justice.
(iii} The variance, if granted, will not
adversely affect the adjacent property or the
neighborhood.
(iv) The variance, if granted, will not
substantially or permanently impair the appropriate
use or development of adjacent property.
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(v) The variance, if granted, is the minimum
variance that will afford .relief with the least
modification possible of the Zoning Ordinance.
(3) In passing upon variances to the Sign Code, Section
16.4-19 of the Comprehensive Zoning Ordinance, the Board of
Adjustment and Appeals shall determine that:
(i) There are special circumstances or
conditions, such as the existence of 'buildings,
topography, vegetation, sign structures or other
matters on adjacent lots or within the adjacent
public right-of-way, which would substantially
restrict the effectiveness of the sign in question;
provided, however, that such special circumstances or
conditions must be peculiar to the particular
business or enterprise to which the applicant desires
to draw attention, and do not apply generally to all
businesses or enterprises.
(ii) The variance, if authorized, will weaken
neither the general purpose of the Zoning Ordinance
nor the regulations prescribed for the district in
which the sign is located.
(iii) The variance, if authorized, will not
alter the essential character of the district in
which the sign is located.
(iv) The variance, if authorized, will not
substantially or permanently injure the appropriate
use of adjacent conforming property.
(4) The Board of Adjustment may not grant any variance
relating to the use of property unless it finds, in addition to the
findings previously set forth in this Section, that:
(i) The property cannot be used for any
purpose permitted within the zone district applicable
to the property.
(ii) The proposed use is the use for the
property most compatible with the standards and
policies set forth in the Comprehensive Plan.
(iii) The proposed use will not be detrimental
to nor incompatible with other uses in the
neighborhood.
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(iv) The proposed use is the least traffic-
intensive use possible which will permit some
reasonable use of the property.
(v) The alleged difficulty or hardship was
not self-imposed.
s. A variance for late registration of a nonconforming use
may be granted provided there is evidence of legal documentation or
other evidence that the use was allowed by the City or some agency
thereof at some previous time, or any other agency having juris-
diction at the time of the original construction. Examples: at
the time of construction the use was permitted and made non-
conforming by a change in the zoning ordinance; or a variance was
granted by Board of Adjustment; or a use was in existence prior to
first zoning ordinance of 1940; or a use was in existence prior to
the area being annexed to the City. In addition, a permit or use
issued in error by the City may be considered.
6. The Board shall have the authority to require any
reasonable stipulation which might be necessary to properly protect
the general welfare when granting a variance. (Ask appellant if he
agrees to stipulation or if he wishes to amend his request to
include the stipulation before granting.) (16.2-8 c. Comprehensive
Zoning Ordinance)
To enable the Board to discuss and argue the case without
prejudice and away from the usual heated atmosphere of the public
hearing, the decision of the Board can be discussed in executive
sessions, either immediately after the public meeting or after
further examination of the sites, where such examination is
necessary. However, the decision must be announced at a public
meeting and within thirty-five (35) days from the date of the
public hearing.
Since the records are especially important if a court review
of the case is ordered, they should be accurate and complete. The
record should be especially explicit in indicating what facts were
found, the conclusions that the facts indicated and the reasons
behind them.
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VII. APPEAL FROM BOARD'S DECISION
Any party aggrieved by the Board's decision, or the City
itself, may apply to have said decision reviewed by a court of
competent jurisdiction, in accordance with the provisions con-
tained within the Colorado Rules of Civil Procedure, provided the
action is commenced not more than thirty (30) days subsequent to
the date of said decision. The cost of preparation of the record
of the hearing shall be assessed against the appealing party.
In the event that such judicial review results in a judicial
declaration setting aside or reversing said decision, the members
of the Board which rendered such decision may take such steps as
may be necessary to obtain an appellate review of the same, either
through the institution of original proceedings or through appeal,
in their own names, in their representative capacities, as members
of the Board rendering the decision. Should any party not comply
with the decision of the Board, the members of the Board involved,
or the City itself, may, in addition to any other legal remedies
which may exist for compelling compliance therewith, petition any
court of competent jurisdiction for the entering of a judicial
decree compelling compliance with said decision. (1-10-2 EMC 1985)
In Sections R-1-A, R-1-B and R-1-C, no variance for a use
that was created or changed after May 1, 1985, or that became
nonconforming after May 1, 1985, shall be approved without review
by the Board and the City Council. First review shall be by the
Board. If approved by the Board, the variance shall be referred to
the City Council. The City Council shall review the record and a
written decision of the Board to determine if the variance complies
with the requirements of this Ordinance. No hearing shall be held
before City Council. Should the City Council determine the
variance does not comply with this Ordinance, the variance shall
then be denied.
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HOME RULE CHARTER
not be binding on the Council; however, no general city plan, nor zoning
ordinance, nor any modification amendment or revision thereof. shall be
considered by the Council unless the same shall have been first submitted to
the Commission for its examination and recommendation. The Commission
shall conduct public hearings as they deem necessary.
59:
PART Ill. BOARD OF ADJUSTMENT AND APPEALS
BOARD CREATED
Council shall establish by ordinance ·a Board of Adjustment and Appeals,
consisting of seven (7) members appointed by Council, for overlapping terms of
four (4) years. Members shall be qualified tax-paying electors, residents of the
City at least one (1) year immediately prior to the date of their appointment,
and shall hold no other office or position in the City Administration. The
recording secretary shall sign any documents or communications from the
Board, "by order of the Board of Adjustment and Appeals". (Amended 5·5-70)
60: POWERS AND DUTIES
The Board shall keep minutes of its proceedings, show the \tote taken, keep
records of its examinations and other official actions. Every order, requirement,
decision or determination of the Board shall be filed in the office of the City
Clerk. The Board shall have power to hear and determine appeals from refusal
of building permits; make special exceptions to the terms of the zoning
regulations in harmony with their general purpose and intent; authorize
variances from the strict application of regulations in such situations and
subject to such limitations as may be set by ordinance. The findings and
decisions of the Board shall be final, subject only to judicial review.
The Board shall exercise its authority in accordance with State Statutes,
except as otherwise provided in this Charter.
PART IV. WATER AND SEWER BOARD
61: BOARD CREATED
The Council shall establish by ordinance a Water and Sewer Board. The Board
shall consist of the Mayor of the City, two (2) councilmen selected by Council,
and six (6) members appointed by the Council from qualified tax-paying
electors, serving six (6) overlaP.ping terms of six (6) years. A representative
from the City Administration shall be appointed by the City Manager to serve
as an ex officio non-voting member. (Amended 5-5-70)
C18 3-25-73
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1-10-2: HEARING PROCEDURES:
1-10-2-1: PURPOSE AND APPLICABILITY: The purpose of the rules of
procedure contained herein is to provide a uniform, consistent and
expeditious method of procedure for the conduct of all hearings held before the City
Council or any board, commission or official of the City. The provisions of th is Section
shall be applied uniformly in all such hearings; provided, however, that any board,
commission or official may supplement the provisions of this Section by the adoption
of further rules of procedure not inconsistent herewith . All rules adopted to
supplement the provisions of this Section by any board, commission or official shall be
reduced to writing and copies thereof shall be made available to the public. Nothing
herein contained shall be construed or interpreted to grant to any person a right to
appeal to the City Council or to any board, commission or official of the City, or to have
a hearing before the same, unless the provisions of the City Charter, any applicable
State Statute, or other ordinance, grants such a right, the sole purpose of this Section
being to establish procedural rules for hearings otherwise required by the provisions of
other laws. (Ord. 68 Series 1981)
1-10-2-2: DEFINITIONS:
A. As used in this Section:
AGGRIEVED
PERSON
APPLICANT
Any person having a direct and substantial interest in
the outcome of any quasi-judicial hearing, or any person
having a right of appeal therefrom by virtue of any
Charter provision, State Statute or ordinance .
The petitioner, appealing party or complainant.
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1-10-L2 1-10-2·3
Al CLERK The City Clerk or the secretary of any board or
commission or other appropriate official.
B.
HEARING BODY
OPPONENT
The City Council or any board, commission or official of
the City.
Any person in interest opposing the applicant.
Department heads or authorized officials of the City, or the City itself, may
be applicant or a respondent, or aggrieved person as the case may be. (Ord .
68 Series 1981)
1 -10-2-3: NATURE OF HEARINGS:
A . Quasi-Judicial Hearings : The provisions of Section 1 -10-2-7 hereof shall be
applicable only to those hearings where the hearing body is called upon to
exercise a power of a judicial or quasi-judicial nature, which, for the purpose
of this Section, shall be deemed to include, but not be limited to, the following:
B.
1. Hearings before the Liquor Licensing Authority upon application for the
issuance, or hearings for the suspension or revocation of liquor or fermented
malt beverage licenses;
2. Hearings before the City Council upon ordinances which zone or rezone realty,
ordinances which annex property to the City, and upon all appeals from the
decisions of any City official, board or commission where such an appeal is
authorized by Charter, Statute or ordinance, and which requires an evidentiary
hearing to determine such appeal;
3. Hearings before the Board of Adjustment and Appeals;
4. Hearings before the Board of Career Service Commissioners upon appeals
from disciplinary actions against employees;
5. Hearings before the City Council or any board or commission or official
respecting the issuance, suspension or revocation of any license issued by the
City, or the imposition of any assessments or penalties;
6. Hearings before other boards or commissions that meet the requirements
of a quasi-judicial hearing as established by the Colorado Supreme Court.
Administrative Hearings: All other hearings before a hearing body shall be
deemed to be administrative hearings, the purpose of which is to obtain
information to enable the City Council to determine legislative policy or to enable
any board or commission to make recommendations to the Council upon
proposed or pending legislation. Such hearings shall be conducted in compliance
with the provisions of Sections 1-10-2-4, 1-10-2-5 and 1-10-2-6, and
in such a manner so as to enable any person desiring to be heard a reasonable
opportunity for the presentation of his views, but there shall be no requirement
for compliance with the provisions of Section 1 -10-2-7.
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1 -10 -2 ·3 , -10 --2-7
C. Hw question of whether a hearing is administraive or quasi -judicial shall be
raised at the hearing and the hearing body shall rule thereon or may adjourn the
hearing for legal assistance. (Ord. 68 Series 1981)
1-10-2-4: COMMENCEMENl OF PROCEEDINGS: All proceedings
conducted pursuant to this Section shall be commenced in the manner
provided by the Charter, Statute or ordinance governing the matter. In any proceeding
involving the appeal of a decision of a City official, board or commission, the appeal
procedure shall be commenced by the filing with the Clerk or recording secretary of
the hearing body involved a written notice of appeal by any party entitled to take such
appeal upon forms to be supplied by the hearing body having jurisdiction over the
appeal within a period of thirty five (35) days from the date of the decision being
appealed, unless a different time for appeal is set by the Charter, Statute or other
ordinance involved. (Ord. 68 Series 1981)
1-10-2-5: REFERRAL TO HEARING BOD\': Upon receipt by the Clerk of any ·
application, petition, notice of appeal , complaint or other instrument
initiating a hearing, the same shall be referred to the hearing body having jurisdiction
over the matter, and a date, time and place for hearing thereon shall be set by said
hearing body, which shall direct public notice thereof to be given , if otherwise
required; provided, however, that the hearing body may authorize its Clerk to set a
date, time and place for hearing upon receipt of such instrument without the necessity
for action by the hearing body itself. (Ord. 68 Series 1981)
1-10-2-6: PUBLIC NOTICE: If required, public notice of the date, time and
place of the public hearing shall be given in the manner provided by the
Charter, Statute or ordinance pursuant to which said hearing is to be held. 1 In the
absence of the provisions specifically delineating the manner in which public notice is
to be given, notice of the date, time, place and purpose of the hearing to be held shall
be published once in that newspaper designated by City Council as the City's official
newspaper not less than fifteen (15) days prior to the date of said hearing . In the event
the public hearing is postponed, notice shall be given of the date, time and place to
which the hearing has been postponed, either by causing further notice to be
published, as above provided, or by publicly announcing at the date, time and place set
in the original notice, of the hearing's postponement, of the new date, time and place
when and where the postponed hearing shall be held . (Ord. 68 Series 1981)
1-10-2-7: QUASI-JUDICIAL HEARINGS:
A. Rights of Participants: All quasi -judicial hearings, as hereinabove designated,
shall be conducted under the following procedures :
1. All parties or witnesses who appear for the purpose of testifying upon
factual matters shall testify under oath;
1 . See Section 1--10 -1 of this Cod e.
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1-10-· 2 .7 1-10-2-7
A) 2. The cross-examination, upon request of the interested parties, of all
witnessns;
B.
c.
D.
3. The stenographic, or other verbatim, reproduction of all testimony
presented in said hearing; and
4. Within thirty five (35) days after a quasi-judicial hearing, a written decision
by the hearing body which shall set forth the factual basis and reasons for the
decision rendered .
Order of Procedure: At quasi -judicial hearings , the following order of
procedure shall be followed; however, the procedure may be modified by the
hearing body when circumstances require the order to be changed:
1. First, there shall be presented those documents showing the regularity of
the commencement of the proceedings and the due form of the public notice
given.
2 . Next, the hearing body shall receive staff presentation concerning the issue
before the body.
3. Next, the applicant's presentation of such material evidence, if any, as he
desires .
4. The hearing body shall, upon completion of the presentation of the
applicant's evidence, call upon any person present in support of the applicant's
position to present such evidence and information as he may desire.
5. Thereafter, the hearing body shall call for the presentation of information
and evidence from any person present at the hearing who desires to oppose the
application, petition, appeal o r complaint.
6. The applicant shall then be given an opportunity to present any further
matter in opposition or rebuttal to the matters presented by the opponents.
7. All documents, or other items of physical evidence, shall be marked as
exhibits with such identifying symbols as may be necessary to determine the
exhibit referred to by any witness or other person.
Rules of Evidence: The hearing body shall not be required to observe any
formal rules of evidence, but may consider any matter which a majority thereof
conclude is reasonably reliable and calculated to aid the hearing body in
reaching an accurate determination of the issues involved.
Deliberations and Vote: Each hearing body is authorized to deliberate upon the
issues presented at the hearing in private, nonpublic sessions, provided that no
decision shall be effective except upon a vote of the members of the hearing
body conducted in an open session thereof.
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1--10 ---2 -7 1-10-3
E. The pc.irty who appeals a decision of a hearing body shall pay for preparation of
the verbatim record and exhibits of the hearing from which the arpeal is taken.
F. Judicial Enforcement and Review of Decision: Any party aggrieved by a
hearing body in any quasi-judicial hearing, or the City itself, may apply to have
said decision reviewed by a court of competent jurisdiction, in accordance with
the provisions therefor contained within the Colorado Rules of Civil Procedure.
G . In the event that review results in a setting aside or reversing said decision, the
City Council may take such steps as may be necessary to obtain an appellate
review of the same, either through the institution of original proceedings or
through appeal. (Ord. 68 Series 1981 I
1-10-2-8: PRESERVING ORDER: Each administrative body shall have the right
to preserve order during the hearing and to take such steps, including
the ejection of any disorderly or obstreperous person intertering with its proceedings,
as may be necessary, and the administrative body may, prior to any presentations and
as a condition to the taking of testimony or information from any person, require the
registration of all persons desiring to be heard during the hear i ng. It may restrict the
testimony of any person to the material issues pending before it and, to prevent
duplicative or cumulative presentations, it may impose reasonable time restrictions on
any person . (Ord. 34 Series 1967)
1-10-2-9: ADJOURNMENTS: After commencement of any hearing, the
administrative body may, if it is deemed necessary to obtain a full
presentation, adjourn the hearing from time to time by publicly announcing the fact of
such adjournment and the date, time and place when and where the adjourned hearing
shall recommence, without the necessity of any further published notice thereof. (Ord .
34 Series 1967)
1-10-2-10: HEARING FEES: Each administrative body is hereby authorized to
require from each applicant requesting a hearing before the same, to
pay to the City a reasonable, uniform fee therefor, to defray the expenses of the same;
provided, however, that provision shall be made for the waiver of the payment of same
in all instances of proven indigency. (Ord. 34 Series 1967)
1-10-3: AUTHORITY TO ISSUE SUBPOENAS: The City Council or any
board or commission authorized to exercise quasi-judicial authority
shall have the power to issue subpoenas to any person o r entity in order to carry out its
duties and responsibilities.
A . The City Clerk, Mayor, chairman of the board or secretary of the board shall
have the authority to sign said subpoenas for and on behalf of the Council or
board .
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1-10-3 1-10-3
B.
c.
D.
The subpoenas shall be served in the same manner as a subpoena issued by a
Municipal Court.
Upon failure of any witness to comply with such subpoena, the City Clerk, or
Mayor, or chairman of the board or secretary of the board shall cause a
summons and complaint to be filed in the Municipal Court of the City and a
copy of the complaint to be served on the witness/defendant for a violation of
this Section for which the Court shall promptly set a hearing date and review
evidence in support of or contrary to the issuance of the subpoena, and the
Court may enter an order compelling the witness to attend and testify before
the board or commission under penalty of punishment for contempt, in the
case of unlawful failure to comply with the order of the Court.
A violation of this Section shall also be a separate offense of the Englewood
Municipal Code and shall be subject to all other penalties provided for in this
Code. (Ord. 79 Series 1981)
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1 0-12-85
Section 16.2 Administration of the Ordinance.
Section 16.2-1 Enforcement.
a. Enforcing Official. The provisions of this Ordinance shall be administered
and enforced by the Director of Community Development of the City of
Englewood or by persons designated by the Director. Code Enforcement
personnel will have all legal powers necessary to enforce this Ordinance.
b. Stop Orders. Whenever the use of property or the construction of any
building or structure is contrary to the provisions of this Ordinance, the
Director of Community Development or a person duly authorized by the
Director may order the use of the property or the construction to be
stopped by serving notice in writing on any person, firm or corporation
engaged in using said property or in doing or causing such work to be
done, or by posting such notice in a conspicuous place on said property
when no such person, firm or corporation can be served in the aforesaid
manner. No oversight or dereliction or error on the part of the Director
or any employee of the Department of Cornmunity Development, or on the part
of any other official or employee of the City of Englewood shall legalize,
authorize, or excuse the violation of any of the provisions of this
Ordinance.
Section 16.2-2 Building Permits.
Building Permit Required. It shall be unlawful to commence the excavation for
or the construction of any building or other structure, including accessory
structures, or to store building material, construct entrances to parking
lots or commence the moving, structural alterations, conversions, extensions,
enlargements, alteration or repair of any structure, including accessory
structures until a building permit has been issued therefor.
Section 16.2-3 Certificate of Occupancy.
After the effective date of this Ordinance, or any amendment hereto, a Certificate
of Occupancy shall be issued for all buildings and property when there is any
change in the use of the property, any change in the type of use of an existing
building as stated in the Englewood Building Code, and prior to the use or
occupancy of a new building. The Certificate of Occupancy shall be posted
in a conspicuous place on the premises and shall not be removed except by
the Director of Community Development or an authorized representative except
in single-family and two-family residences, which do not have to post the
Certificate of Occupancy.
Section 16.2-4 Null and Void Permits.
Any building or occupancy permit issued in conflict with the provisions of this
Ordinance shall be null and void and may not be construed as waiving any provision
of this Ordinance.
Section 16.2-5 Interpretation.
The Planning Commission is authorized to interpret the provisions of this
Ordinance, and when deemed necessary by the Commission, submit reports to the
City Council suggesting amendments to the Ordinance to clarify the intent and
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purpose of any article, section, or paragraph on which it has occasion to
rule.
Section 16.2-6 Appeals and Variances.
Any person aggrieved by any notice or order issued pursuant to the provisions
of this Ordinance may appeal the same to the Board of Adjustment and Appeals
for the City of Englewood, Colorado. Such appeal shall be filed within
thirty (30) days from the date of receipt of such notice or order in the manner
provided by the Rules of Procedure adopted by said Board.
Section 16.2-7 Power of the Board.
The Board shall have power to hear and determine appeals from refusal of
building permits, to make special exceptions to the terms of this Ordinance
in harmony with their general purpose and intent, and to authorize variances
from the strict application of the regulations in this Ordinance as set
forth below.
Section 16.2-8 Jurisdiction of the Board.
a.
b.
Appeals. In addition to such other jurisdiction as authorized by law, the
Board shall have the jurisdiction and power:
(1) To hear and decide appeals from and to review any order, requirement,
decision or determination by any employee of the Department of
Community Development in the enforcement of this Ordinance, and to
hear and decide all matters referred to it, or upon which it is
required to pass under this Ordinance or any amendment hereto.
Appeals to the Board may be made by any person aggrieved by the
interpretation or decision in the interpretation of this Ordinance.
(2) To reverse or affirm, wholly or partly, or to modify any order,
requirement, decision or determination of an employee of the
Department of Community Development and to make such order,
requirement, decision or determination as in its opinion ought
to be made and, to that end, shall have all the powers of the
enforcing agent.
(3) Public notice of time and place and purpose of such hearing shall be
given by one publication in the official newspaper of the City at
least ten (10) days before such hearing.
Variance.
(1) The Board shall have the jurisdiction and power to grant variances
or modify in speci~ic cases the strict application of the provisions
of this Ordinance provided the following conditions are met:
(a) No variance or modification of any provision of this Ordinance
shall be authorized except after public hearing thereon. Public
notice of time and place and purpose of such hearing shall be
given by one publication in the official newspaper of the City
at least ten (10) days before such hearing, and, where appropriate,
by posting of the property affected for not less than fifteen
(15) consecutive days prior to said hearing.
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(b)
(c)
In passing upon variances, the Board of Adjustment may vary
the application of the regulations set forth in this Zoning
Ordinance only if the Board fings that:
(i) By reason of exceptional nar rowness, shallowness or
shape of a specific piece o f property on the date this
Section takes effect or by r eason of exceptional
topographic conditions or other extraordinary and
exceptional situation or condition of the piece of
property, and the strict application of the regulation
would result in peculiar and undue practical difficulties
for the owner of the property.
(ii) The variance, if granted, will observe the spirit of this
Ordinance, secure the public safety and welfare, and
achieve substantial justice.
(iii) The variance, if granted will not adversely affect the
adjacent property or the neighborhood.
(iv) The variance, if granted, will not substantially or
permanently impair the appropriate use or development
of adjacent property.
(v) The variance, if granted, is the minimum variance that
will afford relief with the least modification possible of
this Ordinance.
In passing upon variances to the Sign Code, Section 16.4-19 of
the Comprehensive Zoning Ordinance, the Board of Adjustment and
Appeals shall determine that:
(i) There are special circumstances or conditions such as
the existence of buildings, t opography, vegetation, sign
structures or other matters on adjacent lots or within
the adjacent public right-of-way, which would substantially
restrict the effectiveness o f the sign in question;
provided, however, that such special circumstances or
conditions must be peculiar to the particular business or
enterprise to which the appl i cant desires to draw attention,
and do not apply generally to all businesses or enterprises.
(ii) The variance, if authorized, will weaken neither the
general purpose of this Ordin ance nor the regulations
prescribed for the district in which the sign is located.
(iii) The variance, if authorized, will not alter the essential
character of the district in which the sign is located.
(iv) The variance, if authorized, will not substantially or
permanently injure the appropriate use of adjacent
conforming property.
(2) The Board of Adjustment may not grant any variance relating to the
use of property unless it finds, in addition to the findings previously
set forth in this Section, that:
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(a) The property cannot be used for any purpose permitted within
the zone district applicable to the property.
(b) The proposed use is the use for the property most compatible
with the standards and policies set forth in the Comprehensive
Plan.
(c) The proposed use will not be detrimental to nor incompatible
with other uses in the neighborhood.
(d) The proposed use is the least traffic-intensive use possible
which will permit some reasonable use of the property.
(e) The alleged difficulty or hardship was not self-imposed.
(3) Whenever an enforcing officer has issued an order to cease and desist
from the operation of dwelling units in excess of the number
authorized by this Ordinance, which units have not been registered
as Nonconforming Uses, and the Board of Adjustment and Appeals also
finds that literal enforcement of the provisions of this Ordinance,
by reason of unique and exceptional circumstances including physical
condition, age, and/or other factors, will result in unnecessary
hardship; then, and in that event, the Board may order a delay for
a reasonable period of time not to exceed the total period of
time which would have been permitted under other provisions of this
Ordinance if properly registered. Any such variance granted by the
said Board shall apply only to permit continued operation of uses
upon evidence of legal documentation or other evidence that the
use was allowed by the City or some agency thereof at some previous
time, or any other agency having jurisdiction at the time of
original construction. The payment of a business and occupational
license fee or other similar fee or tax shall not be deemed to have
legalized an illegal use. The Board cannot, by virtue hereof,
permit the registration or continuance in use of an illegal use.
Any such variance allowed by the Board shall be deemed to be
applicable to the property and not a personal variance applicable
to the person or persons applying therefor. All such actions by the
Board shall be recorded in the office of the Clerk and Recorder of
Arapahoe County, Colorado.
(4) In Sections R-1-A, R-1-B and R-1-C, no variance for a use that was
created or changed after May 1, 1985, or that became nonconforming
after May 1, 1985, shall be approved without review by the Board
and the City Council. First review shall be by the Board. If
approved by the Board, the variance shall be referred to the City
Council. The City Council shall review the record and a written
decision of the Board to determine if the variance complies with
the requirements of this Ordinance. No hearing shall be held before
City Council. Should the City Council determine the variance does
not comply with this Ordinance, the variance shall then be denied.
(5) The Board of Adjustment and Appeals shall not grant any variance
which will increase the density in any residential zone district.
c. Authority to Require Reasonable Stipulation. The Board shall have the
authority to require any reasonable stipulation which might be necessary
to properly protect the general welfare when granting a variance.
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d.
e.
f.
g.
Responsibility to Adopt Rules and Regulations. The Board shall adopt,
publish and make available such procedural rules and regulations as may
be deemed necessary to carry into effect the provisions of this Ordinance,
which rules and regulations shall be kept on file in the office of the
City Clerk and shall be open to public inspection.
Limitations on the Board. Nothing herein contained shall be construed to
empower the Board to change the terms of this Ordinance or to effect changes
in the Zoning Map of the City of Englewood. The powers of the Board
shall be narrowly interpreted and strictly construed so that this Ordinance
and Map shall be strictly enforced.
Expiration of Variance. Any variance granted by the Board shall automatically
expire within one hundred eighty (180) days of the date it was granted, or
within such other time as the Board may prescribe, unless a building
permit for the action which was the subject of the variance is obtained
within such period of time and work started. Extensions of time may be
granted for good cause shown, but only if an application for the extension
is made prior to the expiration of the variance.
Judicial Review. Any person applying to the courts for a review of any
final and reviewable decision made under this Zoning Ordinance by the
City Council, Planning Commission or Board of Adjustment, shall pay the
cost of preparing any necessary transcript and any necessary record of
proceedings.
Section 16.2-9 Procedure.
a. Representation at any Hearing. At any hearing, any party may appear in
person, or be represented by a duly authorized person, or by an attorney.
b. Meetings Open to the Public. All regular meetings of the Board shall be
open to the public.
c. Board Shall Keep Minutes. The Board 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, and shall keep records of its
examinations and other official actions, all of which shall be filed in
the off ice of the Department of Community Development and shall be a
public record.
d. Render Decision Within Thirty-Five Days. The Boar d shall render its
decision within thirty-five days after publi c hearing.
e. Decisions to Be Based on Find i ngs. Every deci s ion shall be based on
findings of fact and every finding o f f act shall be supported in the
record of the hearing. All testimony shal l be presented publicly; the
Board shall not take notice o f any fact and shal l not consider the
personal knowledg e of any me mber unless the f a c t of which notice is
taken is made part of the record, and unless the pe.rsonal knowledge of the
member is presented publicly as testimony by such member.
f, Required Number of Votes. The quorum for the Board of Adjustment shall
be five (5) members thereof. When only a quorum is present, a concurring
vote of four-fifths (4/5) o f such members shall be necessary to reverse
any order, requirement, decision or determinat i on of any administrative
official or to decide in favor of the applic ant on any matter upon which
the Board is required to pass under this Ordina nce or to affect any
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g.
h.
variation of this Ordinance. When six (6) or seven (7) members of the
Board are present, a concurring vote of five (5) members shall be
necessary to affect the above. ·
Appeals from the Board. Any person or persons jointly or severally
aggrieved by any decision of the Board, or any resident, taxpayer, or
other officer, department, Board or Commission of the municipality may
appeal such decision by appropriate legal action to a Court of Record
having jurisdiction thereof. Such appeal shall be filed no more than
30 days from the date of the Board action.
Fees of Board. Any person making appeal to or applying for a variance
from the Board shall deposit at the time of application a sum determined
by the City Council as necessary to pay for reasonable costs of such
appeal.
Section 16.2-10 Public Notices.
a.
b.
Notice shall be by one (1) publication in the official newspaper of the
City at least ten (10) days before any hearing, or before consideration
of any other matters about which notice is required.
In addition, the property shall be advertised by posting for not less
than fifteen (15) consecutive days prior to the hearing or consideration
of the case; provided, however, that where there is no property to post,
the aforesaid newspaper publication shall be deemed sufficient notice.
(1) Such posting .shall consist of a sign not less than twenty-two (22)
inches by twenty-eight (28) inches in size, located not less than
four feet (4') above ground level in a conspicuous place, with
letters not less than one inch in height in black ink, which letters
can be read from the adjoining street right-of-way.
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STATUTES RELATING TO PUBLIC SERVANTS
(updated 4/a-5)
PART 1
OBSTRUCTION OF PUBLIC JUSTICE
J8-8-l01. Ddinitions. As used in this article, unless the context otherwise
requires:
(1) "Government" includes any branch, subdivision. institution, or
agency of the government of this state or any political subdivision within
it.
(2) "Governmental function" includes any activi t y which a public servant
is legally authorized to undertake on behalf of a government.
(3) "Public servant" means any officer or employee of government,
whether elected or appointed, and any person part icipating as an advisor,
or consultant, engaged in the service of process, or otherwise performing
a governmental function, but the term does not include witnesses.
Source: R & RE, L. 71, p . 453, § I; C.R.S. 1963, § 40-8-101.
PART3
BRIBERY AND CORRUPT INFLUENCES
18-8-301. Definitions. The definitions contained in section 18-8-101 are
applicable to this part 3, unless the context otherwise requires, and, in addi-
tion to those definitions:
(1) "Benefit" means any gain or advantage to the beneficiary, including
any gain or advantage to a third person pursuant to the desire or consent
of the beneficiary .
(2) "Party officer" means a person who holds any position or office in
a political party, whether by election, appointment, or otherwise.
(3) "Pecuniary benefit" is benefit in the form of money, property,
commercial interests, or anything else the primary significance of which is
economic gain.
(4) "Public servant", as used in sections 18-8-302 to 18-8-308, includes
persons who presently occupy the position of a public servant as defined
in section 18-8-101 (3) or have been elected, appointed, or designated to
become a public servant although not yet occupying that position.
Source: R & RE, L. 71, p. 459, § l; C.R.S. 1963, § 40-8-301.
18-8-302. Bribery. (1) A person commits the crime of bribery, if:
(a) He offers, confers, or agrees to confer any pecuniary benefit upon
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18-8-~I .' ( 'riminal ( 'odt:
u puhlil' snvant with thl' intt:nt to influl·nc·1.· the puhlil' servant'i. vote. opin-
ion . judgnll'nt, l'Xl'ITis<.' of disnetion, or otlwr al'tion in his offil.:ial capacity;
or •
(h) Whik a public servant. he solicits. accepts. or agrees to accept any
pl·cuniary hcncf it upon an agreement or understanding that his vote. opinion,
judgment. exercise of discretion. or other action as a puhlic servant will
thcrehy he influenced .
(2) Jt is no ddensc to a prosecution under this section that the person
sought to he influenced was not qualified to act in the desired way, whether
because he had not yet assumed office, lacked jurisdiction, or for any other
reason .
(3) Brihery is a class 3 felony.
Source: R & RE. L. 71. p. 459, § 1; C.R .S. 1963, § 40-8-302.
Cros~ referenl'e: For bribery of persons other than a public servant. sec§ 1~-.'1-401 .
Am. Jur. See 12 Am. Jur .2d . Bribery.§ 12 .
C.J.S. Sec 11 C .J .S ., Briber y ,§ § 2 , 3.
10e 5ubstantin oflerLo;e of bri~ry of a judge
can be committed by Ollf person. People v .
lncerto. lt<O Colb . 31>6, .'Ill .~ P.2d 1309 (1973).
ugblittivt Intent. Thr ~eneral assembly
apparentl y intrnded to define bribery as the
commission of any one of the following three
act s: (I J offering to confer upon 11 public
servant, (2) conferring upon a public servant ,
or (3) agreeing to confer upon a public servant .
Although the statute doe s not spec.ify the
per~on with whom the agreement mu st ~e
made to be guilty of the third act , under a stnct
construction, the agreement must be with the
publi c ~rrvant, not a third pany , while a
defc:ndant ma y be guilty of th" first two ac t~
evrn if the public official doc ~ not agree to be
bribed . People v . Bailey, 41 Colo . App . 504 ,
.59.5 P.2d 2.52 (1978), rev'd on other ground s,
200 Colo . 549. 617 P.2d 549 (19l<O l .
Definition of terms of former statute
requiring both "t=ivilll:" and "recelvi~''. See
Pe o ple v . lncerto , 180 Colo . 366 , 505 P .2d
B09 (1973).
Corporation or a corporate body 1~ not
included in the definition of "i:onrnmmt' • in ,
section 18 -8-101 . Ba ilr y v . People. 200 Colo .
549 . 617 P.2d 549 (1980 ).
· [k·finition of tl'rm "public sen·ant" I~ que~
tion of la"' for court. Pcoplr v. B a iley . 41 Colo.
App . 5~ • .'19.'i P .2d 252 (1978 ), rev'd on other
ground s . 200 Col o . 549, fi17 P .2d 549 (1980 ).
Emplone of the Colorado Springs urban
renewal ~rrort is not a "public servant" per-
formin g a "governmental function". on beh.a lf
of a "government" a s defined m section
18-8-101. B ai le y ..... People, 200 Colo . 549, 617
P.2d 549 (1980).
18-8-303. Compensation for past official beha\•ior. (1) A person commits
a class 5 felony, if he:
(a) Solicits , accepts , or agrees to accept any pecuniary benefit as compen-
sation for having, as a public servant, given a decision, opinion, recommenda-
tion , or vote favorable to another or for having otherwise exercised a discre-
tion in his favor , whether or not he has in so doing violated his duty; or
(b) Offers, confers, or agrees to confer compensation, acceptance of
which is prohibited by this section .
Source: R & RE , L. 71 , p. 460 , § 1; C .R.S. 1963, § 40-8-303.
Am. Jur. See 12 Am. Jur .2d , Bribery ,
§ § 12, 13.
18-8-304. Soliciting unlawful compensation. A public servant commits a
class 2 misdemeanor if he requests a pecuniary benefit for the performance
of an official action knowing that he was required to perform that action
without compensation or at a level of compensation lower than that
requested.
Source: R & RE, L. 71, p. 460, § 1; C.R.S . 1963, § 40-8-304.
C.J .S. See 11 C.J .S ., Bribery,§ 7 .
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18-8-305. Trading In puhlk offict'. (I) A person commits trading in puhlic
offic:e if :
(ii) HC' offers. confers, or agrees to confer any pecuniary benefit upon
a puhlic servant or party officer upon an agreement or understanding that
he or a particular person will or may be appointed to a public office or desig-
nated or nominated as a candidate for public office; or
(b) While a public servant or party officer, he solicits, accepts, or agrees
to accept m1y pL·cuniary hendit from another upon an agreement or under-
standing that u particular perl>on will or may be appointed to a public office
or designated or nominated as a candidate for public office.
(2) It shall he an affirmative defense that the pecuniary benefit was a
customary contribution to political campaign funds solicited and received by
lawfully constituted political parties.
0) Trading in public office is a class 1 misdemeanor.
Soun:e: R & RE. L. 71, p . 460, § 1; C.R .S. 1963, § 40-8-305; L. 72, p.
275. § 7; L. 73 , p . 539, § 6.
J8-8-:W6. Attempt to influence a public senant. Any person who attempts
to influence any public servant by means of deceit or by threat of violence
or economic reprisal against any person or property, with the intent thereby
to alter or affect the public servant's decision, vote, opinion. or action con-
cerning any matter which is to be considered or performed by him or the
agency or body of which he is a member, commits a class 4 felony.
Source: R & RE , L. 71 , p. 460, § I; C .R.S. 1963, § 40-8-306.
18-8-307. Designation of supplier prohibited. (1) No public servant shall
require or direct a bidder or contractor to deal with a particular person in
procuring any goods or service required in submitting a bid to or fulfilling
a contract with any government.
(2) Any provision in invitations to bid or any contract documents prohib-
ited by this section are against public policy and void .
(3) It shall be an affirmative defense that the defendant was a public
servant acting within the scope of his authority exercising the right to reject
any material, subcontractor, service, bond , or contract tendered by a bidder
or contractor because it does not meet bona fide specifications or require-
ments relating to quality, availability , form, experience, or financial responsi-
bility.
(4) Any public servant who violates the provisions of subsection (1) of
this section commits a class 5 felony .
Source: R & RE, L. 71, p. 460, § 1; C.R.S. 1963, § 40-8-307; L. 73, p.
539, § 7.
18-8-308. Failin~ to disclose a conflict of interest. (1) A public servant com-
mits failing to disclose a conflict of interest if he exercises any substantial
discretionary function in connection with a government contract, purchase,
payment, or other pecuniary transaction without having given seventy-two
hours' actual advance written notice to the secretary of state and to the gov-
erning body of the government which employs the public servant of the exist-
ence of a known potential conflicting interest of the public servant in the
transaction with reference to which he is about to act in his official capacity.
Source: Amended, L. 79, p . 744, § 1.
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(2) A "potential conflictinr. inkrest" cx.ist.s when th~ publi.c servant is
a director. president, general manager, or s1m1lar executive: off 1cer or owns
or contrnls directly or indirectly a substantial interest in any nongovernmental
entity participating in the tnmsaction.
0) Failing to disclose a conflict of interest is a class 2 misdemeanor.
Soun·c: R & RE. L. 71. p. 461. § 1; C.R.S . 1963, § 40-8-308.
Sc.-c.·llon dul' "·Ith form11l, uprts~ ronlr11cts.
Frn mr1 sn·tion pwhihilin~ interest in contract
hy officc1 had to do with such contract~ as
tht l•fficcr is charged with the duty of
makin~. and witlt thosr in the awarding of
which he has a voice, or vote, and cle1uly
means formal. cxprc:ss contr11c1s , whiclt arc in
term~ agreed upon, or awarded on bids .
Pwplc v. Bwwn, 60 Colo. 276, 152 P . 1169
(1915).
PART4
ABUSE OF PUBLIC OFFICE
18-8-401. Definitions. The definitions contained in sections 18-8-101 and
18-8-301 are applicable to this part 4, unless a different meaning is plainly
required.
Source: R & RE, L. 71, p. 461, § 1; C.R.S. 1963, § 40-8-401.
18-8-402. l\·lisuse of official information. (1) Any public servant, in
contemplation of official action by himself or by a governmental unit with
which he is associated or in reliance on information to which he has access
in his official capacity and which has not been made public, commits misuse
of official information if he:
(a) Acquires a pecuniary interest in any property, transaction, or enter-
prise which may be affected by such information or official action; or
(b) Speculates or wagers on the basis of such information or official
action; or
(c) Aids, advises, or encourages another to do any of the foregoing with
intent to confer on any person a special pecuniary benefit.
(2) Misuse of official information is a class 5 felony.
Source: R & RE, L. 71, p. 461, § 1; C .R.S. 1963, § 40-8-402.
Am. Jur. See 63 Am . Jur.2d, Public Offi-v . Heckers, 37 Colo. App. 166, 543 P.2d 1311
urs and Employees,§ 348 . (1975).
Statute as basis for jurisdiction. See People
18-8-403. Official oppression. (l) A public servant, while acting or pur-
porting to act in an official capacity or taking advantage of such actual or
purported capacity, commits official oppression if, with actual knowledge
that his conduct is illegal, he:
(a) Subjects another to arrest, detention, search, seizure, mistreatment,
dispossession, assessment, or lien; or
(b) Has legal authority and jurisdiction of any person legally restrained
of his liberty and denies the person restrained the reasonable opportunity
to consult in private with a licensed attorney-at-law, if there is no danger
of imminent escape and the person in custody expresses a desire to consult
with such attorney.
(2) Official oppression is a cJass 2 misdemeanor.
Source: R & RE. L. 71. p . 461, § 1; C.R.S. 1963, § 40-8-403.
Cross refrrt'nce: For the duty of officers to admit an attorney. see§ 16-3-404 .
Am. Jur. Sec 63 Am . Jur .2d, Public Offi-
cers and Employees,§ 347 .
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553 Offenses -Governmental Operations 18-8-406
18-8-404. First degree official misconduct. (1) A public servant commits
first degree official misconduct if, with intent to obtain a benefit for himself
or maliciously to cause harm to another, he knowingly:
(a) Commits an act relating to his office but constituting an unauthorized
exercise of his official function; or
(b) Refrains from performing a duty imposed upon him by lawior-ekariy
~herent.fn-the~M~re-of~~-off.ice;or Source: Amended, L.83,p710§1
(c) Violates any statute or lawfully adopted rule or regulation relating to
his office .
(2) First degree official misconduct is a class 2 misdemeanor.
Source: R & RE, L. 71, p . 462, § l; C.R.S. 1963. § 40-8-404.
Am. Jur. See 63 Am . Jur.2d, Public Offi-
cers and Employees , § § 58, 346 .
Purpose of section. The remedy for corrupt
discharge of a district attorney's duties is in
the criminal statutes. McDonald v . Lakewood
Country Club , 170 Colo . 355, 461 P .2d 437
(1969).
Section applicable although term of office
had expired when Indictment was filed. Provi-
sions of former section relating to malfea-
sance in office were applicable to an official
violating the terms thereof , although his term
of office had expired when the indictment
was filed against him. Whalen v. People , 74
Colo . 417, 222 P . 398 (1924).
Definitions. Malfeasance consists of the
doing of an act which is wholly wrongful and
unlawful; it involves an act which the officer
has no authority to do and it is readily distin-
guished from misfeasance or nonfeasance .
People v . Schneider, 133 Colo . 173, 292 P .2d
982 (1956).
Elements of offense. Malfesance in office
cannot be charged except for breach of a
positive statutory duty or for the performance
of a discretionary act with an improper or
corrupt motive . People v . Schneider, 133
Colo . 173, 292 P .2d 982 (1956).
Mere ownership of land by a county com-
missioner, which land was later subdivided,
would not constitute malfeasance. People v .
Schneider, 133 Colo . 173, 292 P .2d 982 (1956).
1bere must be some direct allegation of facts
which constitute malfeasance. To charge
malfeasance without more is to state a
conclusion which does not afford the defend-
ant an opportunity to know the nature of or to
meet the charge against him . People v .
Schneider, 133 Colo. 173, 292 P.2d 982 (1956).
StaMe as basis for jurisdiction. See People
v . Lewis, 183 Colo . 236, 516 P.2d 416 (1973).
Applied in People v. Enlow, 135 Colo . 249,
310 P .2d 539 (1957).
18-8-405. Second degree official misconduct. (1) A public servant commits
second degree official misconduct if he knowingly, arbitrarily, and
capriciously:
(a) Refrains from performing a duty imposed upon him by law-tl'!' elearly-
iftherent~~e nMtt~-of h~~; or Source: Amended, L.83,p710§1
(b) Violates any statute or lawfully adopted rule or regulation relating to
his office.
(2) Second degree official misconduct is a class 1 petty offense.
Source: R & RE, L. 71, p. 462 , § 1; C.R .S. 1963, § 40-8-405.
Am. Jur. See 63 Am . Jur .2d, Public Offi-
cers and Employees, § § 58, 346 .
. 18-8-406. Issuing a false certificate. A person commits a class 5 felony,
if, being a public servant authorized by law to make and issue official certif-
icates or other official written instruments, he makes and issues such an
instrument containing a statement which he knows to be false.
Source: R & RE, L. 71, p. 462, § 1; C .R.S. 1963, § 40-8-406.
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18-8-407 Criminal Code 554
18-8-407. Embezzlement of public property. (1) Every public servant who
lawfully or unlawfully comes into possession of any public moneys or public
property of whatever description, being the property of the state or of any
political subdivision of the state, and who knowingly converts any of such
public moneys or property to his own use or to any use other than the public
use authorized by law is guilty of embezzlement of public propert y . Every
person convicted under the provisions of this section shall be forever there-
after ineligible and disqualified from being a member of the general assembly
of this state or from holding any office of trust or profit in this state.
(2) Embezzlement of public property is a class 4 felony .
Source: L. 77, p . 967 , § 45.
F.dltor's note: Section 68 of chapter 224 , Session Laws of Colorado 1977 , provides that
the act amending subsection (I) is effect ive July 1, 1977 , and applies to offenses alleged to have
been committed on or after said date .
Am. Jur. See 26 Am. Jur .2d, Embezzle-
ment ,§ 34.
Law review. For article , "One Year Review
of Criminal Law", see 34 Dicta 98 (1957).
Intent of section Is to prevent mlsappUcadon
of i>ubUc funds. The intention of the general
assembly is to prevent the misapplication and
use of public funds for the benefit and profit
of the officer and to strictly prohibit the use
of the money by the officer for speculative
purposes and for his own gain . This section is
based upon and enacted for the purpose of
carrying out the prohibition contained in§ 13
of art . X , Colo . Const ., and by reference to
that, the intention becomes manifest and the
limits of legislation defined . Moulton v .
McLean, 5 Colo . App . 454, 39 P. 78 (1895);
People v. Schneider, 133 Colo . 173 , 292 P .2d
982 (1956).
It is the using of public money for the offi-
cial 's own gain that is intended to be reached
by this section. People v. Schneider , 133
Colo . 173 , 292 P .2d 982 (1956).
It was not the Intention of the general assem-
bly to prohibit the depositing of money In
banks for convenience in safekeeping. Davis
v . Dunlevy, II Colo . App . 344, 53 P.. 250
(1898).
And bond covering money deposited In bank
Is valid. A bond given to indemnify the clerk
of a county court on account of money depos-
ited in a bank is not void as against public
policy, nor in violation of this section. Davis
v. Dunlevy , 27 Colo . 244 , 60 P . 570 (1900).
An essential element of the crime of
"embezzlement" or "criminal conversion " is
that the property must be owned by another
and the conversion thereof must be without
the consent and against the will of the party to
whom the property belongs , coupled with the
fraudulent intent to deprive the owner of the
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property. People v . Fielden , 162 Colo . 574 ,
427 P .2d 880 (1967).
This section bti Implicit within Its language
the requisite unlawful conversion and criminal
Intent. People v . Fielden , 162 Colo. 574, 427
P .2d 880 (1967 ).
Fraudulent Intent Is not an element of the
offense under this section . People v.
McKnight , __ Colo . App . _, 567 P .2d
811 (1977).
It does not requJre that defendant be the
custodian of the money in question or that he
have e x clusive control over it . Rogers v .
People , 104 Colo . 594 , 94 P.2d 453 (1939).
Property was not misappropriated as a mat-
ter of law where it was used by the defendant
as it was int ended to be , on special order,
with the knowledge of the hospital agent in
charge that it was to be delivered to and used
by the director himself , not for public use or
at public expen s e . People v . Fielden, 162
Colo . 574, 427 P .2d 880 (1967).
RequJred particularity of description of
property embezzled. The general rule is that
the required particularity of description of
property embezzled is the same as in case of
property stolen . If, however , the court can
deter mine from the indictment that the prop-
erty therein mentioned is covered by the
statute and the jury can determine that it is
the property identified b y the evidence , no
mo re is mandatory . People v . Warner, 112
Colo . 565 , 151P.2d975 (1944).
Statute of limitations applicable. The act
averred in the indictment must appear to have
been committed within the period prescri~
b y the statute of limitations or an excepuoo
must be set forth . If the indictment avers two .
dates , one of which is so remote as ''? ~
barred by t he s tatute of limitations , it IS
defective. Bustamante v . District Court. 138
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. VARIANC.ES
IN PASSING UPON VARIANCES, THE BOARD OF ADJUSTMENT MAY VARY THE
APPLICATION OF THE REGULATIONS SET FORTH IN THIS ZONING ORDINANCE
ONLY IF THE BOARD FINDS THAT:
2.
3.
4.
5.
By reason of exceptional narrowness, shallowness or shape of
a specific piece of property on the date this section takes
effect or by reason of exceptional topographic conditions
or other extraordinary and exceptional situation or condition
of the piece of property, and the strict application of the
regulation would result in peculiar and undue practical
difficulties for the owner of the property.
The variance, if granted, will observe the spirit of this
Ordinance, secure the public safety and welfare, and achieve
substantial justice.
The variance, if granted, will not adversely affect the
adjacent property or the neighborhood.
The variance, if granted, will not substantially or permanently
impair the appropriate use or development of adjacent property.
The variance, if granted, is the minimum variance that will
afford relief with the least modification possible of this
Ordinance.
Section 16. 2 -Administration of
the Ordinance. Comprehensive
Zoning Ordinance in effect as of
June 7, 1985.
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SIGN CODE VARIANCES
IN CONSIDERING A REQUEST FOR A VARIANCE TO THE SIGN CODE, SECTION 16.4-19
OF THE COMPREHENSIVE ZONING ORDINANCE, THE BOARD OF ADJUSn1ENT AND APPEALS
SHALL DETERMINE THAT:
1.
2.
3.
4.
There are sepcial circumstances or conditions such as
the existence of buildings, topography, vegetation, sign
structures or other matters on adjacent lots or within
the adjacent public right-of-way, which would substantially
restrict the effectiveness of the sign in question; provided,
however, that such special circumstances or conditions must
be peculiar to the particular business or enterprise to which
the applicant desires to draw attention, and do not apply
generally to all businesses or enterprises.
The variance, if authorized, will weaken neither the general
purpose of this Ordinance nor the regulations prescribed for
the District in which the sign is located.
The variance, if authorized, will not alter the essential
character of the District in which the sign is located.
The variance, if authorized, will not substantially or
permanently injure the appropriate use of adjacent
conforming property.
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USE VARIANCES
THE BOARD OF ADJUSTMENT MAY NOT GRANT ANY VARIANCE RELATING TO THE
USE OF PROPERTY UNLESS IT FINDS, IN ADDITION TO THE FINDINGS
PREVIOUSLY SET FORTH IN THIS SECTION, THAT:
1. The property cannot be used for any purpose permitted within
the zone district applicable to the property.
2. The proposed use is the use for the property most compatible
with the standards and policies set forth in the Comprehensive
Plan.
3. The proposed use will not be detrimental to nor incompatible
with other uses in the neighborhood.
4. The proposed use is the least traffic-intensive use possible
which will permit some reasonable use of the property.
5. The alleged difficulty or hardship was not self-imposed.
Section 16 .2 -Administration of the
Ordinance. Comprehensive Zoning
Ordinance in effect as of June 7,
1985.
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City of Englewood, Colorado
Application
Board of Adjustment & Appeals
(For office uee only)
Variance (zoning)
Fen ce
Sign
Encroachment
Code Interpretation
CaNNO.-------------------
Fillng Datt-----------------
Meeting Date ------------------
Potting Date
Received By------------------
Petition la hereby made to the Board of AdJuatment and Appeala , purauant to the provlalona of the Municipal Code, 11
emended, for conelder1tion of the property and Intent herein deacrlbed.
APPLICANT OWNER/LESSEE
Name
Ma ili ng Address----------------Malling Addre11
Phone ____ _ ---------------~Phone ___________________ _
~equeat la to Permit---------------------------------------
Address of Subject Property ------
Legal Deacriptlon : Lota-------------Block ___ Subdivision ------------
Applicant 's Justification (See back of thia form) ---------------------------
1 ti.reby affirm that the above Information la correct to the beat of my knowledge .
Co de Enf oree 111ent Dlvlelon
3 400 Sou th Elatl Strut
Engl ewood, Colorado 80 I I 0
'761-11 40
119"•'"" of OwMr l L• ... ,
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DAT E
PLOT PLAN
Department of Community Development
City of Englewood, Colorado
DDRESS OF SUBJECT PROPERTY
----------~...,.....----~~------~
Phon e Phone
CORNER LOT D INTERIOR LOT D ZONE DISTRICT
~------------~
SQUARE FEET HEIGHT OF PROPOSED STRUCTURE LOT: WIDTH ---DEPTH ---
CLASS OF WORK: New Addition Repair Alter Move
Existing Use(s) on Property---------------------~
Propos e d Use(s) on Property ----------------------
Structures -Gross Floor Area: Existing -----Proposed -----
ALL of the following information must be provided on the Diagram below:
1. Adjacent streets and alleys.
2. Location of all easements on property, and dimensions.
Other
Lot
Coverage
Total
----
3. Front, Side and Rear Setbacks of all existing and proposed structures.
4. Distance between all existing and proposed structures.
5. Dimensions of all existing and proposed structures.
6. Location of sewer, water and other service lines.
ndicate ALL Existing Structures with a SOLID LINE and Proposed Structures with a DASHED LINE .
~ach Square below is 5 Feet by 5 Feet; One Inch equals 20 Feet.
0
0
50
;; j ]
Street or Avenue
•• , .. ,.,
above site plan, indicating all existing and proposed structures, is j_n compliance
a p plicable Zoning Regulations for this property and location. -52-
DATE
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CITY OF ENGLEWOOD, COLORADO
Information for posting property for
hearing on an application before the
Board of Adj _ustment and Appeals,
CASE ·NUMBER ------
Notice is to be posted on premises f . ftee n (15) days prior to the Public Hearing
before the Board of Adjustment and Appeals.
Include ALL information between the following two lines:
I Englewood, Colorado,
I To Whom It May Concern:
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Application has been made to the Board of Adjustment to permit
All protests must be made at or before a Public Hearing on
~---------
at 7:30 p.m., in the Council Chambers, 3400 South Elati Street, Englewood,
Colorado.
SIGN POSTING REQUIREMENTS:
The sign for the above notice must NOT BE LESS THAN FOUR (4) FEET WIDE and THREE
(3) FEET HIGH with black lettering NOT LESS THAN THREE (3) INCHES HIGH on a white
background. Sign must be on a solid backing, mounted on its own post(s) at least
FOUR (4) FEET above ground level and within TWENTY (20) FEET of the front property
line with an unobstructed view from the street, and weather-proofed. Any change
must be approved by the Department of Community Development.
Failure to comply with these requirements could result in a delay of the case.
Sign MUST be removed within seven (7) days following the hearing.
DEPARTMENT OF COMMUNITY DEVELOPMENT
3400 South Elati Street
Englewood, Colorado 80110
7h l-ll40 Extension 429
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Department of Community Development
Date ~~~~~~~~~~~~~-
TO WHOM IT MAY CONCERN:
The owners of the property located at
~~~~~~~~~~~~~~~~~--
Englewood, Colorado, and owned by
~~~~~~~~~~~~~~-,..~~~~--
~~~~~~~~~~~-' Colorado, are proposing to ~~~~~~~~~~~
I,
~~~~~~~~~~~~~~~~~~
, the undersigned OWNER of the
which is (adjacent to) (adjoining) the subject site to the (north) (south)
(east) (west) have NO objections to this proposal.
COMMENTS:
NOTE: ONLY ONE (1) ADDRESS PER SH~ET
ADJACENT: Separated by a ·street or alley
ADJOINING: Separated by a property line
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CERTIFICATION
Board of Adjustment
and Appeals
City Planning and
Zoning Commission
OF POSTING
ATTACH
PHOTOGRAPH HERE
I CASE NO. __
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Attached is a photograph of a sign as it is erected on the following described
property.
I hereby certify that the above described property was posted continuously for a
period of ----
to -------
Signature
Relation to property
Date
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~;1 n t.c· (l f Co] or ado )
) SS
Cou nt"y of Arapahoe )
Subscribed and sw orn to before me this --------day of ___________ _
19 ----
Notary Public
Addre:ss
My Commission expires -------------
A separate certification should be presented for each Notice of Hearing
Sign. Such certification may be submitted to the Department of Conununity
De velopment prior to the Hearing or presented at the Hearing.
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. VARIANC.ES
IN PASSING UPON VARIANCES, THE BOARD OF ADJUSTMENT MAY VARY THE
APPLICATION OF THE REGULATIONS SET FORTH IN THIS ZONING ORDINANCE
ONLY IF THE BOARD FINDS THAT:
1.
2.
3.
4.
5.
By reason of exceptional narrowness, shallowness or shape of
a specific piece of property on the date this section takes
effect or by reason of exceptional topographic conditions
or other extraordinary and exceptional situation or condition
of the piece of property, and the strict application of the
regulation would result in peculiar and undue practical
difficulties for the owner of the property.
The variance, if granted, will observe the spirit of this
Ordinance, secure the public safety and welfare, and achieve
substantial justice.
The variance, if granted, will not adversely affect the
adjacent property or the neighborhood.
The variance, if granted, will not substantially or permanently
impair the appropriate use or development of adjacent property.
The variance, if granted, is the minimum variance that will
afford relief with the least modification possible of this
Ordinance.
Section 16.2 -Administration of
the Ordinance. Comprehensive
Zoning Ordinance in e f fect as o f
June 7, 1985.
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SIGN . CODE VARIANCES
IN CONSIDERING A REQUEST FOR A VARIANCE TO THE SIGN CODE, SECTION 16.4-19
OF THE COMPREHENSIVE ZONING ORDINANCE, THE BOARD OF ADJUSTMENT AND APPEALS
SHALL DETERMINE THAT:
1.
2.
3.
4.
There are sepcial circumstances or conditions such as
the existence of buildings, topography, vegetation, sign
structures or other matters on adjacent lots or within
the adjacent public right-of-way, which would substantially
restrict the effectiveness of the sign in question; provided,
however, that such special circumstances or conditions must
be peculiar ·to the particular business or enterprise to which
the applicant desires to draw attention, and do not apply
generally to all businesses or enterprises.
The variance, if authorized, will weaken neither the general
purpose of this Ordinance nor the regulations prescribed for
the District in which the sign is located.
The variance, if authorized, will not alter the essential
character of the District in which the sign is located.
The variance, if authorized, will not substantially or
permanently injure the appropriate use of adjacent
conforming property.
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USE VARIANCES
THE BOARD OF ADJUSTMENT MAY NOT GRANT ANY VARIANCE RELATING TO THE
USE OF PROPERTY UNLESS IT FINDS, IN ADDITION TO THE FINDINGS
PREVIOUSLY SET FORTH IN THIS SECTION, THAT:
1. The property cannot be used for any purpose permitted within
the zone district applicable to the property.
2. The proposed use is the use for the property most compatible
with the standards and policies set forth in the Comprehensive
Plan.
3. The proposed use will not be detrimental to nor incompatible
with other uses in the neighborhood.
4. The proposed use is the least traffic-intensive use possible
which will permit some reasonable use of the property.
S. The alleged difficulty or hardship was not self-imposed.
Section 16.2 -Administration of the
Ordinance. Comprehensive Zon i n g
Ordinance in eff e ct as of June 7,
1985.
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ENGLEWOOD, COLORADO
BOARD OF ADJUSTMENT and APPEALS
( )PUBLIC ~ORKS
( )CITY ENGINEER
INTER-OFFICE MEMORANDUM
( )UTILITIES DIRECTOR
( )FIRE DEPARTMENT
( )BUILDING DEPARTMENT
( >~~------~---------~
( )~-------------------------
ATTACHED ARE RECORDS OF RECENT ACTION TAKEN BY THE BOARD.
If you have any questions, please contact the Planning Division.
Sheryl Rousses
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BOARD OF ADJUSTMENT and APPEALS
ACTION .
I TO:
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CASE NUMBER __ _ I MEETING DATE _____ _
I SUBJECT PROPERTY
I
The City of Englewood Board of Adjustment has considered your request for
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It is the ruling of this Board, by a vote of_ ~o_, that your request be:
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QGRANTED
QGRANTED, with the following condition(s):
THIS ACTION DOES NOT CONSTITUTE A PERMIT. VOU MUST CONTACT THE BUILDING DIVISION 1-FOR A PERMIT. IF NO PERMIT IS OBTAINED IN SIX MONTHS, THE VARIANCE WILL EXPIRE.
__ EACH VEAR A QUESTIONNAIRE WILL BE MAILED TO YOU. IT MUST BE RETURNED TO I RETAIN THE NONCONFORMING USE STATUS.
I CITY OF ENGLEWOOD, COLORADO
I Depa rtment of Community Development
Planning Division
Recording Secretary
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BOARD OF ADJUSTMENT and APPEALS
ACTION
I DENIAL
I TO:
I CASE NUMBER ---1 MEETING DATE------
SUBJECT PROPERTY----------
I The City of Englewood Board cif Adjustment has considered your request for
l it is the ruling of this Board, by a vote of_ to_, that your request be:
I QDENIED
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__ YOU H AVE_ DA Y S TO BRING THIS P ROP E RTY INTO COMPLIANCE.
~11 Y OF ENGLEWOOD, COLORADO
"b e pa r t me nt of Community Developmen t
f ~: ~~~:.g 1 ~::~:ion
Recording Sec r et ary
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-- -- - ------ ----
THE PEOPLE
MUNICIPAL JUDGE
CITY COUNCIL
------------------ ------------·--1 I I
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I Eioaro of Ad1uSlrnents I
d"<l Appeaos _J
j Plannmg and Zunong J
i Comm 1sStOn
Library Board Parks CommissK.>n I Housing~~] Urban Renewal
Authority
Water and Sewer
Board
[Election C~ \
I
°' !\.)
I
Career Set\11Ce
B0ard
Firemeri"s PenslOfl
Board
Pohcemen s Pensoon
Eloard
Retirement Board
POLICE
Ri!cor ds and Admon ostrallUl
Pa1r o1
Coro. Coty Pa trot
Ut!ltCll\le
Lao
Ari 1ma1 Conrrot
PUBLIC WORKS
Engon.,.,rong
Trafloc
Serv1~e Center
St reels
8u1kl1ng Mam1enance
Seno0< Surrey
CITY MANAGER
FIRE
Records and Administration
Fire Protection
COMMUNITY DEVELOPMENT
Planning and Zoning
Codt! Enforcement
F11e Prevention
Rescue
Traonong
UTILITIES
Admonistralion
Waste Water Collection
"Treatment
Water Production
" D1Stributoon
Housing and Redevelopment
PERSONNEL
Records andAdmonistration
Insurance
CITY ATIORNEY
LIBRARY
School -City Joim
Committee
Coty Representati..e
on DRCOG
PARKS and RECREATION
Recreation
Parks
FINANCE
Admonistratoon
~ting-Automated Sys.
Pulchasing
Revenue
Municipal Coort
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COMMISSIONS AND BOARDS
Board of Adjustment and Appeals
Membership and term of office:
The Board consists of seven members appointed by Council
for overlapping terms of four years. Members shall be
qualified tax-paying electors, residents of the City at
least one year immediately prior to the date of their
appointment, and shall hold no other office or position in
the City administration.
Meetings: The second Wednesday of every month.
Duties: The Board hears and determines appeals from any
decision of the Building Inspector and from the refusal of
building permits; and authorizes variances from the strict
application of the regulations of the Comprehensive Zoning
Ordinance, Housing Code, Building Code, and other
ordinances. The decisions of the Board are final and
subject only to judicial review.
Board of Career Service Commissioners
Membership and term of office:
The Board consists of five members, all of whom reside
within the City. Two members are appointed by the City
Council for terms of four years; two members are elected by
direct secret ballot by all full-time permanent classified
employees of the City for terms of four years; one member
is selected by a majority vote of the four members pre-
viously appointed by Council and elected by the full-time
permanent classified employees to serve a term of four
years from the date selected and shall be designated chair-
man of the Board.
Meetings: The third Thursday bi-monthly as necessary.
Duties: A regulatory body governing the City employees. It
recognizes appropriate bargaining units; conducts impasse
hearings; acts as final authority in approving employee
bargaining units; supervises elections regarding employee
organizations; hears and decides contested matters involv-
ing employee bargaining units; hears disciplinary and
grievance appeals; appoints hearing officer for disciplin-
ary appeals, clarification, or amendment of bargaining
units; effectuates policies of charter and ordinances;
adopts reasonable rules and procedures necessary to per-
form its duties.
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Election Commission
Membership and term of office:
The Commission consists of the City Clerk, who shall be an
ex officio member and serve as the chairman of the Commis-
sion, and four qualified electors of the City, appointed by
the Council, and serving overlapping terms of four years.
Meetings: No regular meetings.
Duties: The Election Commission extablishes precincts and
appoints the election judges and clerks for each precinct
as provided in the Colorado Municipal Election Laws and has
charge of all other activities and duties required of it by
law or the home rule charter.
Firemen's Pension Board
Membership and term of office:
The Board consists of six members: the Mayor, Director
of Finance, one member appointed by the City Council,
and three employee-elected members. The four appointed
and elected members serve overlapping three-year terms.
Meetings: No regularly scheduled meetings.
Duties: The Board administers the statutory and City
Pension Fund.
Library Board
Membership and term of office:
The Board consists of nine members appointed by Council
from citizens-at-large with overlapping terms of four
years. The City Manager shall appoint a member of the
library staff to be an ex officio nonvoting member of
the Board.
Meetings: The second Tuesday of every month.
Duties: The Library Board is responsible for assisting the
City Council in developing and maintaining the Public
Library. It serves as an advisory board to the Library
Director and as a liaison between the Public Library and
the community.
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Parks and Recreation Commission
Membership and term of office:
The Commission consists of nine persons to be appointed by
City Council, two members of whom shall be Councilmen and
two members of whom shall be under the age of eighteen
years when appointed. All members shall be appointed for
overlapping terms of four years with the exception of the
two members under the age of eighteen years whose terms
shall expire on October 1 of the year following their
appointment.
Meetings: The second Thursday of every month.
Duties: The Commission considers and recommends to Council
all matters pertaining to a community recreation program
and is responsible for equipping and maintaining City-owned
or controlled parks, recreational areas and facilities,
both in and out of the corporate City limits. It may co-
operate with other public authorities, organizations or
individuals in or out of the City to implement the opera-
tions of the programs.
Planning and Zoning Commission
Membership and term of office:
The Commission consists of nine members appointed by
Council who shall be citizens-at-large for overlapping
four-year terms. The City Manager appoints an adminis-
trative officer to be an ex officio nonvoting member of the
Commission. Commission members shall be qualified
electors, residents of the City at least one year im-
mediately prior to the day of their appointment, and shall
hold no paid office or position in the City Administratiqn.
Meetings: Meetings are held on Tuesdays following the first
and third Mondays of each month.
Duties: This Commission prepares and submits for Council
approval a master plan, and current modifications thereof,
for physical development of the City; makes recommenda-
tions to Council regarding all subdivision plats sub-
mitted to it; submits a list of recommended capital
improvements in order of preference to be constructed in
the forthcoming five-year period; prepares and recommends
a comprehensive zoning ordinance and amendments or revi-
sions thereto; hears applications for amendments, modifi-
cations or revisions of zoning ordinances and makes
recommendations thereon; conducts public hearings as it
deems nec~ssary.
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Policemen's Pension Board
Membership and term of office:
The Board consists of the Mayor, the Director of Finance,
and one employee-elected representative of the police force
serving a four-year term.
Meetings: No regularly scheduled meetings.
Duties: The Board administers the statutory and City Pension
Fund.
Water and Sewer Board
Membership and term of office:
The Board consists of nine members: the Mayor, two
Councilmen selected by Council, and six members appointed
by the Council from qualified tax-paying electors serving
six overlapping terms of six years. A representative from
the City administration shall be appointed by the City
Manager to serve as an ex officio nonvoting member.
Meetings: The second Tuesday of every month.
Duties: The Board serves as an advisory body to Council
regarding continued adequacy of the domestic water supply
and system and sanitary sewer systems, protects domestic
water, water rights, and water supply of the City from
injury and pollution, exercises power over the stream or
source from which such water is taken, initiates litigation
necessary for prevention of stream pollution, determines
necessity of purchase and acquisition of water rights for
municipal supply, recommends changes in water and sewer
rates, new districts to be served, and improvements for
water and sewer service expansion.
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