Hearing Process

1. The Chairperson calls the case by number, address, etc. 
2. Those appearing for or against are asked to stand and give their position, name and address.
3. The Zoning Administrator, through the Assistant City Attorney, is given the opportunity to intervene on behalf of the City, a right given under the ordinance. Comments as to the City’s position are often given at this time.
4. If fewer than five members are present, the options are explained.
5. The Technical Secretary of the Board is asked if the premises have been properly posted with the notification sign.  Failure to post or improper posting will result in the hearing being dismissed or rescheduled.  The Technical Secretary of the Board then presents the exhibits made or received in the office of the Board. You have the right to examine, approve or object to any exhibit. Please request the right to review any exhibits if you have questions about it. 
   Example of Exhibit Order"
       (1) The action of the Zoning Administration being appealed.
       (2) The sketch of the property made by the office staff.
       (3) The photograph of the notification sign taken by staff.
       *Any failure to post the notification sign that requires a rescheduling of the appeal will result in an additional $50.00 fee.
       (4) The Registered Neighborhood Organization Notification Form.
       (5) The Appellant's Statement.
       (6+) Can be previous Board of Adjustment cases on the property, plans, powers of attorney, letters, or any other exhibits that are presented.
6. The statement made on the appeal application is read into the record.
7. The oath that one swears or affirms to tell the truth is administered to all who may wish to testify.
8. The Applicant is then asked to present the case to the Board on whatever grounds relief is sought (see Tips & Miscellaneous page), during which additional exhibits may be submitted to the Technical Secretary, through the City Attorney, for marking. It is often helpful, if you have several documents as exhibits, to make up packets.  Please provide 6 copies for our use (One for each of the five Board members, plus one for the City representatives), plus a 7th if you would like one for yourself.  In many cases, it can be helpful to have letters or petitions of consent from the adjacent property owners. All exhibits presented (stamped file copies) must be kept on file in the office of the Board for at least thirty (30) days after the final decision, at which time they may be picked up, unless the case has been appealed to District Court. (On cases granted “per plans submitted”, the drawings may be picked up at the Board's office.)
9. The Board, the Zoning Administration and any objectors may ask questions of the Applicant.
10. Any objectors may then give testimony and present exhibits.
11. The Board, the Zoning Administration and the Applicant may ask questions of the objectors. 
12. Closing statements are then permitted.
13. The exhibits are admitted and the case is closed. 

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

Appearances – Power Of Attorney: All landowners should appear in person at the hearing, unless extenuating circumstances exist: the owner’s testimony is vital to the Board. A representative of the landowners who is able to testify to all issues (hardship, etc.) may appear for them if he or she holds a properly executed Power of Attorney (see Forms page). If the property is held in co-ownership, each co-owner must appear in person, or one owner bearing a Co-owner Power of Attorney may represent the absent owner. If the property is held in the name of a company, corporation, association, partnership, church, etc., the person appearing must have a corporate Power of Attorney signed by a principal officer (i.e., President, Chairman of the Board, General Partner, etc.).

Legal Counsel: You are not required to have legal counsel, but you may be represented by an attorney if you like. On certain complex technical/legal questions, legal counsel is recommended. The Board or staff cannot recommend a specific attorney. You may call the Denver Bar Association, at 303-831-1309, to supply a referral to an attorney if you do not have one.

Evidence: The evidentiary rules for administrative hearings are not as strict as they are for a Court of Law. You have the right to bring or subpoena witnesses in your behalf and/or submit drawings, diagrams, photographs, documents, letters, or petitions that will help prove your case (see Tips & Miscellaneous page). If you want to subpoena someone, you must use the form available in the office of the Board and authorized by the Chairman of the Board.  Note:A subpoena must be served at least 48 hours prior to the hearing (Rule 45, C.R.C.P.).

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

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

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

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

Reconsideration, Rehearing or Review

1. No case heard by the Board can be considered again except upon a Request for Reconsideration filed with the Board within twenty (20) days of the final decision upon the proper form supplied by the Board's staff (Reconsideration Request Form(PDF, 100KB)) which will set forth:

        (a) That new evidence has been discovered which could not have been presented at the original hearing.
        (b) The reasons why the evidence could not have been presented.
        (c) Submission of the new evidence or an offer of proof of new testimony.
The filing of a Request for Reconsideration does not stay or extend the time to file an appeal from a Board decision.

2. Upon receipt of a request for a rehearing or modification conforming to Paragraph 1 above, the Board may upon motion by a member who voted on the prevailing side on the original decision, and by four (4) affirmative votes, grant a rehearing.

3.  Any Reconsideration found to require a re-hearing of the case shall be subject to a 50% reinstatement fee under Article VII, and shall retain the case number originally assigned to it.   All parties appearing at the previous hearing(s) shall be notified in writing of the new hearing, and the notices required in Article IV shall be repeated

4. The Board may, upon the written request of an applicant or other concerned party, review any Variance previously granted and may modify it in whole or in part, upon a representation that such a Modification will be minor  and in keeping with the original decision.   However, no such review will be considered if made more than five (5) years after the date of the final decision, as set forth at Article V, Paragraph 9, above.

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

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

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

1. When you file a case with the Board, provide the office of the Board with an Improvement Location Certificate (a.k.a. Survey Plot Plan) or an accurate, scaled site plan of the property. This will be used to prepare a sketch of your property and the surrounding area, reviewed by each Board member during the hearing.
2. On all major construction, such as new structures or second story additions, submit scale drawings of a plot plan and elevations. It is best if these drawings are done by a professional architect, engineer, or designer. They do not need to be final construction drawings, but they do need to be to scale, have accurate dimensions, and show the style and finish material of the proposed structure. Any relief granted will be "per plans filed". The Board sends its copy of the plans to the Zoning Department. Make sure the plans show what you intend to build! If you apply for a building/zoning permit with plans that do not match the ones given to the Board at the hearing, you will probably be denied and sent back to the Board for a "modification".
3. On second story additions or two-story homes, it is advisable to have a solar access (light/shadow) study showing any light impact on the property to the north. If there is opposition to your appeal, this study may be crucial.
4. We suggest that you talk to your neighbors before you post the notification sign.
   (a) Show them your plans.
   (b) Explain exactly what your appeal is about.
   (c) Try to obtain approval of the plans in writing by letter or petition from the owners. They can also sign the plans to show that they have seen and approved of the proposal. Be sure they give their addresses. If any of these owners oppose your appeal, the Board will consider the circumstances, including any appearances, letters, or petitions of opposition.
5. Contact your Registered Neighborhood Organization(s) (R.N.O.) as soon as you get your notice. Try to set up a meeting with them to explain your case and obtain their approval in writing.
6. Posting of Your Notification Sign is Critical!! Post the Notification Sign in accordance with the instructions on the sheet attached to the sign when it is picked up. Any failure to post the notification sign that requires a rescheduling of the appeal will result in an additional $50.00 fee.
7. If all owners cannot attend the hearing, please provide a proper notarized Power of Attorney on the correct form provided by the Board. Whether a Corporate, Co-Owner or Individual Power of Attorney is required will depend on the situation. Failure to present a properly executed power of attorney will delay the release of your decision.

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