by Beecher Threatt
On Tuesday the Board of County Commissioners revised two sections of the Land Use Code, repealed four sections and sent proposed revisions of another section back to the planning commission for more study. The two revised sections are 19.7 and 19.8, regarding the Board of Zoning Adjustment and the Board of Visual Appeals. Revisions were made to align the sections with current practice and with state statutes.
Section 19.8 now makes it clear that the Board of Visual Appeals is an advisory body only, and it is not mandatory that appeal of a land use staff decision or a planning commission decision go to the BVA before getting appealed to the county commissioners. Any aggrieved party, staff or the planning commission can request a hearing before the BVA, or the BOCC could send a matter to the BVA for a recommendation.
The BVA is a five-member board, of which three must be design professionals.
Section 19.7 establishes the Board of Zoning Adjustment to hear appeals from administrative decisions, denials of building permits and interpretations of zoning code and to grant variances. Both the county attorney and the planning commission submitted proposed revisions to 19.7. County Attorney Marti Whitmore proposed, in accordance with previous direction from the BOCC, to reflect current practice by stating the BZA is made up of three members and two alternates. The code currently states "three associate members." Current practice is that the BOCC sits as the BZA.
The planning commission proposed that the BZA be increased to five members with two alternates, that one of the five be a planning commission member and that four votes be required for a variance to be granted.
Commissioner Lynn Padgett questioned the addition of two unelected members to the BZA. "Historical practice is that the BOCC is the BZA because as elected officials we are accountable to the public," she said. "But if an appointed official is making a binding decision, that is a game changer and the public does not have that accountability."
"The buck stops with elected officials," Commission Chair Mike Fedel added.
Whitmore noted that having a planning commissioner reviewing a decision of the planning commission would perhaps put that person in the position of advocating for the planning commission decision. It could set up grounds for an appeal to district court.
The board decided to keep the BZA at three members, with current practice being those three are the county commissioners.
Section 6.12 concerns the number of property owners that will receive notice when an applicant requests an amendment to a final plat. The most common use of the amendment process is to adjust a boundary line. County Planner Mark Castrodale told the board that the current section can result in up to 370 notices having to be mailed, which is a huge expense to an applicant.
The planning commission recommended that notice be required for all property owners in the phase or filing of a subdivision where the applicant's property is located, to all property owners within a 2500 foot circle of the applicant's property and to any homeowner's association in the subdivision where the applicant's property is located.
The county commissioners decided to send the recommendation back to the planning commission for more study, emphasizing that the 2500 foot circle seemed excessive and perhaps verbiage describing criteria for notices is preferable to a measurement. Padgett also asked that planning commissioners look at the effect of any proposed revision when an applicant's lot is near the perimeter of a subdivision, where a circle might pick up unnecessary property owners in a neighboring subdivision for notification.
Finally, the board repealed sections 11, 12, 13 and 14 of the code, as they were improperly adopted and unenforceable. The sections concern mineral resource, geologic hazard, wildlife habitat and solid waste site regulations. The sections appear to have been adopted pursuant to "1041 regulations," referring to a state statute allowing counties to make such regulations outside the land use enabling act. The county is awaiting the drafting of a model 1041 code by an attorney with that expertise (paid with a grant) and will consider re-enacting the repealed sections after enacting the model 1041 code.