ANDREATTA v. KUHLMAN

1. ZONING — Variance — Construction of Sign — Granted — Two Months Later — Variance Rescinded — Reconsideration — Not Permitted — Beyond Review Period — Property Owners — Entitled — Rely on Variance. Where town board granted property owners variance from town sign code, thereby permitting them to erect off-premises freestanding sign, but, two months later, after owners began to build sign, board voted to rescind prior variance on ground that no showing of necessity was made, town board was not authorized to reconsider matter because it permitted its grant of variance to stand long after 30-day review period had expired, and thus, owners were entitled to rely on variance.

Opinion by JUDGE PIERCE.

Defendants, the Town of Silverton and the members of its Town Board, appeal the district court's judgment declaring void the Board's revocation of plaintiffs' variance. We affirm.

In May of 1977, the Board, by a vote of three to one with two members absent, granted plaintiffs a variance from the Silverton Sign Code, thereby permitting plaintiffs to erect an off-premise free-standing sign. In July of 1977, after plaintiffs began to build the sign, the Board, with all members present and without prior notice to plaintiffs, voted to rescind the prior variance on the ground that no showing of necessity was made. The Board offered to reimburse plaintiffs for the cost of constructing and removing the sign, and also offered to pay for the repainting of some of plaintiffs' existing signs. Plaintiffs refused, and sought certiorari review in the district court under C.R.C.P. 106(a)(4).

The district court ruled 1) that the Board was without jurisdiction to revoke the variance since it failed to provide plaintiffs with notice and an opportunity to be heard, and 2) that even if notice was not required, the Board was without authority to revoke the variance once it was granted. Because we agree with the district court that the Board was not authorized to reconsider the matter, we do not reach the notice issue.

[1] In Moschetti v. Board of Zoning Adjustment, 40 Colo. App. 156, 574 P.2d 874 (1977), we held that an administrative board could modify its decisions, but only during the time in which judicial review could be sought. Here, where the Board permitted its grant of the variance to stand long after the 30 day review period under C.R.C.P. 106 had expired, plaintiffs were entitled to, and did, rely on the variance, and, absent a change of circumstances, the Board was without authority to reconsider.