Opinion
No. 77-826
Decided January 25, 1979. Rehearing denied February 22, 1979. Certiorari denied May 7, 1979.
Owners of property adjacent to that for which board of county commissioners granted a variance waiving setback requirements and permitting the construction of a second building thereon appealed trial court's affirmance of the board's action.
Reversed
1. ZONING — Variance Sought — Proposed Property Use — Not Beyond — Scope of Hearing — Zoning Authorities — Not Limited — Separate Enforcement Action. The proposed use of a property for which a variance is sought is not beyond the scope of a variance hearing, nor are the zoning authorities limited to stopping an illegal use of the property by a separate enforcement proceeding; not only would such limitations be duplicitous and cumbersome, but also they could result in the zoning authority being estopped from prohibiting the illegal use.
2. Variances — Not Used — Avoid Normal Zoning Processes — Hardship — May Not Be Self-Created — Peculiar — Particular Property Owner. Variances should not be used to avoid the normal processes of amending zoning resolutions, and the hardship or practical difficulty upon which the need for a variance is premised should not be self-created, and it must be of a type peculiar to the one property owner and not shared by others.
3. Record — Variance Hearing — Contain — Evidence — Grounds and Reasons — Allow Review — Deficient — Requires Remand. The record of proceedings for a zoning variance must contain details of the evidence presented and proper grounds and reasons to support the zoning board's decision such that that decision may be reviewed by a court; and where record before zoning board was so deficient that it could not be determined whether applicable legal principles had been followed, a remand of the matter was required.
Appeal from the District Court of the County of Larimer, Honorable John A. Price, Judge.
Joseph P. Jenkins, P.C., for plaintiffs-appellants.
Harden, Napheys, Schmidt Hass, P.C., George H. Hass, for defendants-appellees.
The defendant Board of Adjustment granted a variance to the individually named defendants waiving set back requirements and permitting them to construct a second freestanding building on their lot. The plaintiffs, owners of adjacent properties, sought review of the Board's actions by a timely C.R.C.P. 106(a)(4) proceeding. The court denied them relief, and, on their appeal, we reverse and remand for further proceedings.
We are involved here with a request to the Board of Adjustment to exercise its variance powers as they exist under § 30-28-118(2)(c), C.R.S. 1973, and the Larimer County Zoning Resolution § 26.1, subparagraph 3(c). Under the resolution the Board of Adjustment may grant a variance from strict application of "any regulation enacted under [the] resolution" so as to provide relief for "exceptional practical difficulties or exceptional and undue hardship" but such relief may not be granted if it causes "substantial detriment to the public good [or impairs] the intent of [the] zoning resolution."
The record of proceedings discloses that the applicants presently operate a filling station on the subject property. Their petition was for a waiver of set back requirements relating to a second building which they want to construct on the lot. The petition contains no mention of the use to be made of the building, but petitions in support of the application state that this second building is to be used as a "repair garage." Such use is not permitted in the "B" zone district in which this property is located, but rather requires the more intensive "C" zoning. Nor is it enumerated as a use by special exception. The Board made no findings regarding the garage use; instead it related its decision to the variance in set back requirements.
[1] We do not find persuasive defendants' arguments that the proposed use of the property for which a variance is sought is beyond the scope of a variance hearing, and that if the property is used illegally the remedy is for the zoning authorities to stop the use in a separate enforcement proceeding. Not only would this proposal be duplicitous and cumbersome to administer, but also it could result in the zoning authority being estopped from prohibiting the illegal use. See, e.g., City County of Denver v. Stackhouse, 135 Colo. 289, 310 P.2d 296 (1957).
[2] Rezoning procedures entail detailed notice requirements and study by staff and the planning commission. Variances should not be used as a way to avoid the normal processes of amending zoning resolutions. See 3 R. Anderson, American Law of Zoning §§ 18.71 and 20.04 (2d ed. 1977); 8 E. McQuillin, Municipal Corporations §§ 25.162 and 25.171 (3d ed. 1976 rev.); and 2 E. Yokley, Zoning Law Practice § 15-13 (3d ed. 1965). The hardship or practical difficulty upon which the need for a variance is premised should not be self-created, Levy v. Board of Adjustment, 149 Colo. 493, 369 P.2d 991 (1962), and it must be of a type peculiar to this property owner and not shared by others. Anderson, supra § 18.32; Yokley, supra § 15.9.
An eloquent statement of a guiding principle in this area appears in Heady v. Zoning Board of Appeals, 139 Conn. 463, 94 A.2d 789 (1953):
"The power to grant a variance in the application of established zoning regulations should be exercised charily. . . . The obvious reason is that unless great caution is used and variations are granted only in proper cases, the whole fabric of . . . zoning will be worn through in spots and raveled at the edges until its purpose in protecting property values and securing an orderly development of the community is completely thwarted."
We cannot determine from the record of proceedings before the Board of Adjustment if these principles have been followed. The record is deficient in that it contains no finding or conclusions relative to the repair garage use. There is no reference to any "exceptional practical difficulties or exceptional and undue hardship" requiring the grant of the variance for garage use, nor is there a finding with respect to whether the variance is a detriment to others, such as plaintiffs, or whether it impairs the intent of the zoning resolution.
[3] While in proceedings before the Board strict rules of procedure and evidence need not be followed, Monte Vista Professional Bldg., Inc. v. City of Monte Vista, 35 Colo. App. 235, 531 P.2d 400 (1975), nevertheless, a record of proceedings before the Board must contain details of the evidence presented and proper grounds and reasons to support its decision. See Gaunt v. Board of Appeals, 327 Mass. 380, 99 N.E.2d 60 (1951). Absent such detail, there is no way a court can review the decision of the Board.
We reverse the judgment and remand the cause to the trial court with directions that it remand the matter to the Board of Adjustment for the purpose of holding a new hearing, after notice. The Board shall require proof of the use to which the property is to be put, shall cause to be prepared a record of the evidence presented relating, inter alia, to the "exceptional practical difficulties or exceptional and undue hardship" involved, and its conclusions, all in sufficient detail to permit a reviewing court to determine if the legal requirements have been met.
JUDGE COYTE concurs.
JUDGE RULAND specially concurs.