Denver Revised Municipal Code § 10-1 View plane appeals.
Sec. 10-1. - View plane appeals.
(a) Planning board powers. The planning board, as established and authorized under division 2 of article II of chapter 12, shall have the power and duty to determine, upon application, appeals under articles IV, V and VIII of this chapter 10 relating to the imposition of restrictions upon structures lying within specified view planes (the "View Plane Ordinances"). In the exercise of its powers, the planning board may reverse or affirm, wholly or partly, or may modify a determination of the administrative official in charge of enforcing the View Plane Ordinances when an appeal is taken. To that end, the planning board shall have the powers of said administrative official and may:
(1) Administrative review. Hear and decide appeals where it is alleged there is error in a determination made by an administrative official in the enforcement of the View Plane Ordinances.
(2) Variances. Authorize, upon appeal in specific cases, such variances from the terms of the View Plane Ordinances, subject to terms and conditions fixed by the planning board, as will not be contrary to the public interest where, owing to exceptional and extraordinary circumstances, literal enforcement of the provisions of the View Plane Ordinances would result in unnecessary hardship. Such variance shall not be personal to the applicant, but shall be transferable and shall run with the land. No variance shall be authorized hereunder unless the planning board shall find that all of the following conditions exist:
a. That the proposed use and structure is a permitted use under the zoning laws applicable to the subject land;
b. That literal enforcement of the applicable View Plane Ordinance would preclude reasonable development of the subject land;
c. That the development of the land as proposed by the applicant would not defeat the purposes of the applicable View Plane Ordinance;
d. That the requested variance is the minimum needed to secure from the land a reasonable return in service, use, or income;
e. That the development proposed by applicant would not result in substantial injury to neighboring properties or public lands; and
f. That financial hardship of the applicant is not the only reason for granting a variance.
(b) Notice. Upon receipt of a request for administrative review or variance under this section, the planning board shall set the date, time and location of a public hearing on the request. At least thirty (30) days prior to such hearing, the planning board shall cause notice of the date, time and location of such hearing to be sent to the applicant, city council, and all neighborhood organizations registered under article III of chapter 12 whose boundaries encompass any portion of the view corridor at issue. At least fifteen (15) days prior to such hearing, the planning board shall cause notice of the date, time and location of such hearing to be published in at least one (1) newspaper of general circulation. At least fifteen (15) days prior to such hearing, the planning board shall cause the property in question and the reference point of the view corridor in question to be posted in a manner prescribed by the planning board with notice of the date, time and location of such hearing and any other information prescribed by the planning board.
(c) Hearing process. The planning board shall have the power to call and question witnesses, to issue subpoenas, to require the submission of documentary or other tangible evidence, to rule on evidentiary questions and witness qualifications, and to generally conduct the hearing in conformance with the procedures and requirements established by the planning board. The applicant may be represented by legal counsel and may present testimony and evidence under oath or affirmation. If detailed minutes are not kept, then the hearing shall be recorded. All tangible evidence presented will be retained until applicable appeal periods have lapsed.
(d) Limitations on power.
(1) Concurring vote required. The concurring vote of at least eighty (80) percent of the members of the planning board present or the concurring vote of five (5) members, whichever number is higher, 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 planning board is authorized to act with respect to the View Plane Ordinances.
(2) Findings of fact. Every decision of the planning board shall be based upon findings of fact, and every finding of fact shall be supported in the record of its proceedings.
(3) Powers construed. Nothing contained in this article shall be construed to empower the planning board to change the terms of the View Plane Ordinances or to effect changes in any map incorporated therein. The powers of the planning board shall be so construed that the intent of the View Plane Ordinances and the maps incorporated therein are enforced. The conditions required to exist on any matter upon which the planning board is authorized to act under this section shall be construed as limitations on the power of the planning board to act.
(e) Judicial appeal. The decision of the planning board shall be in writing and provided to the applicant promptly following approval of the written form by the planning board. Said decision shall be considered a final order subject to judicial review under Rule 106(a)(4) of the Colorado Rules of Civil Procedure upon the timely filing of an appeal to the Denver District Court.
(Ord. No. 635-00, § 1, 8-14-00)