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Montezuma County adds variance and after-the-fact variance section to land use code
Summary
The Montezuma County Board of County Commissioners on April 1 approved adding a variance and an after-the-fact variance section (Section 9104) to the county land use code, clarifying when variances are appropriate, listing evaluation criteria, and adopting application fees that are higher for after-the-fact requests.
The Montezuma County Board of County Commissioners voted April 1 to add a variance and after-the-fact variance section (Section 9104) to the county Land Use Code, outlining eligibility criteria, procedures and fees for both standard variances and after-the-fact variance applications.
The amendment defines variance requests as narrow exceptions granted when “owing to special circumstances or conditions, such as exceptional topographic conditions, narrowness, shallowness, or the shape of a specific piece of property,” strict application of the code would result in a practical difficulty or undue hardship. Steven Tarnowski, the county attorney, said the revision lays out a step-by-step evaluation for the Board of Adjustment and clarifies that variances are not a substitute for enforcement actions.
"Part of what we're trying to accomplish by adopting these criteria ... is to specifically define what variances are and by implication what they're not," Tarnowski said. He said the draft lists criteria intended to ensure variances remain a limited tool for properties with unique physical constraints and not a mechanism to permit uses forbidden by zoning.
The draft also establishes differing application fees: standard variance application fees and higher fees for after-the-fact variance requests. Don Haley of the Planning Department said the county anticipates after-the-fact reviews require substantially more staff time because applications often follow a department discovery rather than a voluntary filing by an owner.
"In the process we're not just taking their information ... we have to figure out when the building was built or go back over different imagery," Haley said, adding investigations often take about twice as long as a regular variance review.
During the public hearing, resident Alan Mays said many after-the-fact situations stem from long-time residents building outbuildings without consulting the land use code and later discovering setbacks or other noncompliance when they sell the property. "That term self imposed — they are doing it themselves," Mays said, questioning how fees and enforcement would affect owners who unknowingly built out of compliance.
Commissioners and staff discussed that the code change addresses only the variance process, not the civil or enforcement consequences for code violations. Tarnowski said enforcement remains available through county or district court and is separate from the variance mechanism.
Commissioner motioned to accept the addition of the variance and after-the-fact variance section as presented; the motion was seconded and carried on voice vote. The board directed staff to prepare a resolution that incorporates the new language and return it for formal adoption, with the updated code expected to be prepared by the following Tuesday.
The code change establishes clearer standards for when the county will grant variances, distinguishes variance review from enforcement actions, and sets application fees intended to reflect the greater administrative cost of after-the-fact reviews.
