Chapter 2 - § 2.8 • SOLUTIONS TO SPECIFIC ZONING PROBLEMS

• Jurisdiction: Colorado

§ 2.8 • SOLUTIONS TO SPECIFIC ZONING PROBLEMS

§ 2.8.1—Rezoning/Amendment

Rezoning is the process by which the current permitted uses and land use regulations applicable to a particular property, or in all or part of the municipality or county, are changed by amending the local government's zoning regulations or zoning map. Rezoning is merely another aspect of a local government's power to zone property within its jurisdiction²⁴⁵ and is generally subject to the same standards and limitations discussed in § 2.6, "Limitations on Zoning Powers." An individual rezoning can usually be initiated by the owner of the property proposed for rezoning, the local government in which the property is located, or the county or municipal electors.²⁴⁶

Comprehensive rezonings of all or a large part of the municipality or county are relatively rare, and are deemed to be exercises of local government legislative powers.²⁴⁷ Nevertheless, some local governments have successfully completed large-scale rezonings of land to be in compliance with an adopted comprehensive plan. The Colorado courts have held on two occasions that a county government that decides to give more than the required notice for a legislative action, and instead notifies individual property owners of their inclusion in a large-scale rezoning, does not thereby convert the action from a legislative action to a quasi-judicial action.²⁴⁸ In contrast, the Colorado Supreme Court has strictly construed notice provisions relating to the content of published notice required in connection with a rezoning, holding that courts reviewing the contents of a notice must make a realistic assessment of the actual information imparted by the notice, as opposed to a more formalistic approach, in determining its sufficiency.²⁴⁹

The rezoning of individual properties is much more common and is subject to different "quasi-judicial" standards and safeguards, as discussed in § 2.4.

In evaluating a rezoning application, a local government usually asks whether the proposal complies with the comprehensive plan. If so, the proposed rezoning need only bear a reasonable relationship to the general welfare of the community. If the rezoning would be in conflict with the comprehensive plan, however, the applicant generally needs to show that either: (1) an error was made in establishing the current zoning; or (2) there has been a change in the conditions of the neighborhood that supports the requested zoning change.²⁵⁰ In the absence of past error or a material change in the character of the neighborhood that requires a rezoning to benefit the public interest, property owners can generally rely on existing zoning regulations.²⁵¹

Again, however, it should be noted that past errors or changed conditions are not a prerequisite for the adoption of a PUD rezoning, and that PUD rezonings must "generally conform" with adopted comprehensive plans.

In addition to comprehensive plans, other adopted plans and documents may support or constitute a basis for rezoning and site plan approval. A 2016 Colorado Court of Appeals case upheld the rezoning of a property to the City of Aurora's "Sustainable Infill Redevelopment District" and approval of an associated site plan where the site plan did not include an outdoor gathering space as required in the district. The municipal code stated that proposed development in the district "shall" have an outdoor gathering space, but an adopted Design Handbook appeared to make provision of an outdoor gathering space discretionary.²⁵² The court found the municipal code cited directly to the Handbook, which was intended to be flexible, and upheld the City's interpretation that an outdoor gathering space need not necessarily be provided.

Importantly, a local government cannot provide that rezoned property "automatically" reverts to its former zoning classification should certain conditions not be met. It needs to affirmatively rezone the property.²⁵³

§ 2.8.2—Conditional and Special Uses

In general, "permitted" uses or "uses by right" in a specific zone district are uses that cannot be denied in that zone district unless they fail to meet applicable...