EL PASO COUNTY
LAND DEVELOPMENT CODE

Chapter IV - Section 35.2

Nonconforming Buildings, Uses,
Lots or Parcels and Merger by Contiguity

l.   A "nonconforming use" shall include any legally existing use, whether within a building or other structure or on a tract of land, which does not conform to the "use" regulations for the zoning district in which such "nonconforming use" is located, due to subsequent amendments of the Zoning Regulations or due to the zoning or rezoning of the property on which the use is situated.

2.   A "nonconforming building" shall include any legally existing building which does not conform to the structural lot coverage, height and/or setback regulations for the zoning district in which such "nonconforming building" is located, due to subsequent amendments of the Zoning Regulations or due to the zoning or re-zoning of the property on which the building is situated.

3.   A "nonconforming lot or parcel" is a legally created lot or parcel of land which, due to subsequent amendments of the Zoning Regulations or due to the zoning or rezoning of the lot or parcel, does not conform with the minimum lot area requirement of the zoning of the lot or parcel. Said nonconforming lot or parcel shall be benefited and burdened by the privileges and restrictions of the applicable zoning district, except as otherwise provided in subsection K. below.

B.   CONTINUATION OF USE

A nonconforming use may be continued and a nonconforming building may continue to be occupied, except as otherwise provided for in this section.

C.   CHANGE OF BUILDING OR USE

A nonconforming building or use may be changed to any conforming building or use.

D.   ABANDONMENT OF USE

If active and continuous operations are not carried on as a nonconforming use during a period of one (l) year, the building, other structure or tract of land where such nonconforming use previously existed shall thereafter be occupied and used only for a conforming use. Intent to resume active operations shall not affect the foregoing. A nonconforming use or building, if changed to a conforming use, may not thereafter be changed back to any nonconforming building or use.

E.   RESTORATION

A nonconforming building damaged or partially destroyed by fire, explosion or natural occurrence may be restored to the condition in which it was immediately prior to the occurrence of such damage or destruction, provided:

1.   The restoration or reconstruction shall not extend beyond the original limits of the structure in setback, lot area coverage, height, floor area, and number of bed-rooms or bathrooms (if applicable).

2.   All restoration or reconstruction shall be started within one (1) year from date of damage and shall be completed within two (2) years.

F.   ENLARGEMENT OF A NONCONFORMING USE

A nonconforming use when in a building may be extended throughout the same building devoted to such use at the time of the adoption of the resolution causing such use to become nonconforming, provided that any structural alteration conforms to the require-ments of these regulations. A nonconforming use of land shall not be extended or enlarged; provided, however, such extension or enlargement may be permitted by the Planning Commission and Board of County Commissioners upon the showing of peculiar and exceptional practical difficulties or undue hardship.

G.   ALTERATION OF A NONCONFORMING BUILDING

A nonconforming building may be structurally altered, repaired, or enlarged in any way permitted by these regulations; however, no alterations, repairs, or enlargements shall be made in a nonconforming building which would increase the degree of nonconformity with the location and bulk regulations of this Code.

H.   UNSAFE BUILDINGS

Any building or other structure containing a nonconforming use or any nonconforming building or portion thereof declared unsafe by the County Building Inspector may be strengthened or restored to a safe condition.

I.   NONCONFORMING SIGNS

This section shall not apply to signs of any kind. Please refer to Section 35.4.

J.   DEFAULT OF TITLE

If the title to any property shall change by reason of tax delinquency, and such property is not redeemed as provided by law, the future use of such property shall be in conformity with the then provisions of the Zoning Regulations of the county or with any amendment of such regulations.

K.   NONCONFORMING LOT OR PARCEL AND MERGER BY CONTIGUITY

PART I. - NONCONFORMING LOT OR PARCEL

PURPOSE

The purpose of this Part I of subsection K. is to establish a new mechanism for recognizing the nonconforming status of certain substandard-sized lots or parcels which heretofore were all subject to a variance review process by the Board of Adjustment. Based upon reasonable health, safety, environmental and land use factors, the following four (4) category approach has been structured to address substandard-sized lots or parcels in El Paso County.

Recognition of nonconforming lots shall not be a basis or justification for new subdivision development. New subdivisions shall comply with the applicable zoning require-ments.

REGULATIONS AND CRITERIA

Upon request, any lot or parcel shall be recognized as nonconforming provided, a) the creation of the lot or parcel was in conformance with all applicable subdivision and Zoning Regulations at the time of its creation, b) the lot or parcel is currently in compliance with all zoning use regulations and/or conditions and restrictions of any applicable Special Use or Use Variance approval, and c) the lot or parcel complies with the requirements and criteria of this subsection K.

1.   Lot size and water and sewer status

a.   For any lot or parcel in which domestic water and sewer are provided by central water and sewer systems, the lot shall contain at least sixty percent (60%) of the lot area as required by the zoning district.

b.   For any lot or parcel in which domestic water is provided by a central system but sewer is not provided by a central system, a nonconforming determination shall be subject to the review/ process/criteria as illustrated in Table 1 and provided for in paragraph 2. of this subsection K. below.

*   The numbers noted identify a specific review/ process/ criteria provided under paragraph 2 of this subsection K.

**  Habitable space is that area located inside a dwelling consisting of bathrooms, bedrooms, living rooms, dining rooms, kitchens, dens, lofts or similar space.

c.   For any lot or parcel in which neither central water or sewer is available, a determination of nonconforming can be made subject to the review/ process/criteria, as illustrated in Table 2 and provided for in paragraph 2. of this subsection K.

***   The numbers noted identify a specific review/ process/ criteria provided under paragraph 2 of this subsection K.

2.   Review/Process/Criteria Requirements

a.   Category 1 requirements:

1)   Submittal to, review and approval by the Board of Adjustment is required as provided in Section 4.B. and Section 34 of the Land Development Code.

2)   In reviewing the requested variance under the general standards of Section 34, the Board will also consider the performance standards listed under sub-paragraph 2.b. below and may consider other land use factors such as density effects, compliance with master plans, size and location of any proposed structures, etc.

b.   Category 2 requirements:

1)   Standards

The following performance standards must be demonstrated in accordance with the procedures and submission requirements of this subparagraph 2.b.

a)   All isolation distances of an Individual Sewage Disposal System (ISDS), including a one hundred foot (100') radius for the well providing water on the property, shall be de-signed and located entirely on the lot or parcel. Verifica-tion must be provided from the Department of Health and Environment noting that these requirements are in com-pliance with the ISDS regulations.

b)   The extraction of areas containing a Federal Emergency Management Act (FEMA) designated one hundred (100) year floodplain, major drainageways and/or slopes in excess of thirty (30) percent leaves a single buildable area of at least fifty (50) percent of the lot or parcel's total net area. In the instance where properties are merged, the parcel after merger shall contain a single buildable area of at least thirty percent (30%) of the parcel's total net area.

2)   Procedures:

a)   Any applicant desiring to establish the noncon-forming status of their lot or parcel as provided in this sub-paragraph 2.b. may seek an administrative determination by making application to the County Development Services Department. All documentation, informa-tion and/or site or plot plans necessary to satisfy the performance standards contained in this sub-paragraph 2.b. shall be attached to the application.

b)   Within ten (10) working days following receipt of a complete application, the Development Services Director or his/her designee shall complete his/her review, which may include consultation with the County Department of Health and Environment, and render a decision of approval or disapproval on the application. Specific findings shall be made in support of this decision. The decision shall be considered "rendered" by mailing a first-class letter of the decision to the applicant. The Development Services Director or his/her designee may incorporate reasonable conditions and restrictions deemed necessary to assure that the performance standards are adequately satisfied.

c) Any party aggrieved by the decision of the Development Services Director or his/her designee may appeal the decision to the Board of Adjustment by submitting to the Development Services Department a completed application provided by the Development Services Department and paying the applicable fee within thirty (30) days of the date of the decision letter. An applicant may also request a lot area variance through the Board of Adjustment. Such appeal or variance request will be processed as provided in Section 34 of the Land Development Code.

3)   Application Requirements

a)   A letter of intent (subsection 36.A.) requesting a noncon-forming lot or parcel determination, legal description, and a site/plot plan (subsection 37.A.) of the property.

b)   Verification from the El Paso County Department of Health and Environment of the adequacy of the ISDS [refer to K.2.b.1) a)].

c)   A completed merger by contiguity form, if subject to the Merger by Contiguity as provided in Part II of this sub-section K.

If the lot or parcel would otherwise be subject to the merger criteria and the applicant(s) do not own contiguous property, then the applicant(s) shall provide a statement acknowledging that he/she/they do not own or otherwise have an interest in any contiguous property at the time of submittal.

d) Other relative information as may be requested by the Development Services Department in order to make a determination concerning drainageways, floodplains and slopes.

c.   Category 3 requirements:

1)   An "as is" determination means the existing residence in its current external configuration, i.e., without any habitable additions. Any future habitable additions would be subject to review/process/ criteria under Category 1 or 2, as applicable. Nonconforming status for a lot or parcel under Category 3 is valid only while the existing residence remains in its present exterior configuration.

2)   Notwithstanding the restrictions contained in sub-subparagraph 1) above, if the residence is damaged or partially destroyed, it may be restored or reconstructed as provided in subsection 35.2 E. above. Otherwise, any other construction must comply with the provisions of this subsection K.

3)   Upon request, an administrative determination of noncon-formity will be made, provided the request includes a) a site plan with boundary dimensions, lot size, all existing buildings and structures, easements, setbacks and roads, fully dimensioned; b) legal description; c) letter requesting the determination; and d) verification provided by the El Paso County Department of Health & Environment that there is no evidence of a sewage problem or that any sewage problem is being properly remedied.

3.   Within five (5) working days of receipt of a request for an administrative determination, the Development Services Department shall notify all adjoining property owners by regular mail of the applicant's intent to seek an administrative determination of nonconformity under this subsection K. Said notice shall indicate that the aggrieved party can appeal the decision to the Board of Adjustment within thirty (30) days following any approval made by the Development Services Department. The grounds for appeal shall be limited to those standards and issues identified in this subsection K. for administrative determinations.

4.   Prior to the Development Services Department's authorization for the issuance of a building permit for a new residence or for a habitable addition to an existing residence located upon a nonconforming lot or parcel, an applicant must provide and satisfy the following:

a.   Verification of existing Individual Sewage Disposal System or permits for new Individual Sewage Disposal System from the El Paso County Depart-ment of Health & Environment, if not on a central sewer system, establishing the acceptability and/or adequacy of the system; and

b.   Verification of the water source for a new residence or structure utilizing water, in the form of a water tap, an absolute commitment of water service from an established water provider, or well permit, as applicable.

5.   The Development Services Department can authorize the issuance of a building permit for a non-habitable addition or improvement (e.g., a garage, deck, tool shed) without any determination of nonconformity.

6.   Multiple lots or parcels under the same ownership may be subject to Merger by Contiguity as provided in Part II of this subsection K.

7.   Nonconforming lots or parcels shall comply with all development requirements of the applicable zone district unless otherwise indicated in this subsection K. Lots or parcels subject to the Merger by Contiguity provision shall have setbacks applied only along the exterior boundaries of the merged properties. Lot frontage requirements shall not apply to nonconforming lots or parcels.

8.   Disclaimer - In the event that a lot or parcel is determined to be a nonconforming lot of record, such determination does not relieve the property of compliance with regulations or criteria of other agencies or departments or of other applicable sections of the Land Development Code, except as otherwise expressly provided in this subsection K. Recognition as a nonconforming lot or parcel does not warrant that the parcel or lot will be a "buildable lot" or that an ISDS permit will be issued.

PART II: MERGER BY CONTIGUITY

PURPOSE

The purpose of this Part II of subsection K. is to establish a mechanism whereby the number of substandard-sized lots or parcels is reduced to the maximum extent possible and re-formed into lots or parcels more closely sized to the lot size requirements of the applicable zoning districts. The combination of lots or parcels under this provision is based upon the common ownership of contiguous lots or parcels which existed, or is existing, one hundred twenty (120) days prior to or any time subsequent to the date of enactment of this Part II.

9.   APPLICATION

a.   Certain nonconforming lots or parcels as provided for in subsection K. of Part I above may be subject to merger by contiguity as provided for within this Part II. The merger requirement applies to any two (2) or more con-tiguous lots and/or parcels of land subject to the requirements of this Part II. Upon merger, the combined lots shall be considered as one (1) parcel of land for the purposes of County zoning and subdivision administration.

The merger provision shall apply to:

* all lots and/or parcels of less than 2.5 acres without central water and sewer

OR

* all lots and/or parcels of less than twenty thousand (20,000) square feet if central water is provided

when all of the following conditions or circumstances occur:

1)   Not more than one (1) residential dwelling is situated on the lots and/or parcels.

2)   All of the lots and/or parcels are within the same zoning district,

3)   All of the lots and/or parcels are owned, in whole, by the same person, persons or entity****

b.   After any required merger which combines lots to satisfy the minimum requirements specified in subparagraph K.9.a., a remaining remnant parcel may exist. The remnant parcel may be considered as an independent nonconforming parcel provided it satisfies the applicable criteria of Part I.

****  Any conveyance of title of any contiguous lot or parcel coming under this paragraph within one hundred twenty (120) days prior to the effective date or after the effective date of this Part II shall be presumed to be an attempted evasion of the merger by contiguity requirements, which will ordinarily result in the application of this Part II. Merger shall occur, in accordance with this Part II, where contiguous lots and/or parcels are owned by a husand and/or wife, individually or by joint or commong ownership. Any property owner(s) disputing whether this "common ownership" provision applied to his/her or their property may appeal to the Board of Adjustment following a determination of applicability by the Development Services Director in accordance with paragraph 12 below.

10.   CONTIGUITY

a.   Lots and/or parcels shall be regarded as contiguous when not less than one-sixth (1/6th) of the perimeter of either property is shared by both properties or if the lots and/or parcels share a common boundary of at least fifty (50) feet, whichever is less.

b.   Severance of Contiguity:

1)   The contiguity of lots and/or parcels shall not be considered severed by the existence, along their common boundaries, of a private road, road easement, driveway or alley; a public or private transportation or utility easement or utility right-of-way; a river, creek, stream, or other natural or artificial waterway; any geologic condition that naturally or artificially divides property; or an intersecting mining claim.

11.   RECORDATION

Upon applying for a building permit or seeking any land use approvals, or requesting a determination of nonconformity, the property owner(s) of all lots and/or parcels subject to these merger by contiguity requirements shall submit to the Development Services Department a signed and completed form, provided by the Development Services Department, acknowledging the legal combination of these contiguous lots and/or parcels. Said executed form shall be immediately recorded against the title(s) of the properties in the office of the El Paso County Clerk and Recorder.

12.   VARIANCE

a.   Any property owner aggrieved by the application of the merger by contiguity requirements of this Part II to his/her property must first request, in writing, a determination by the Development Services Director or his/her designee as to its applicability. Such a request must include all information necessary for an accurate and complete determination.

b.   If the property owner receives an adverse determination from the Development Services Director or does not receive any determination within ten (10) work days following the Development Services Department's receipt of a complete request, he/she may apply to the Board of Adjustment for a variance, upon forms provided by the Development Services Department. Any decision to grant a variance shall be made only upon a finding in the evidence presented to the Board, that an unusual hardship or exceptional practical difficulty exists on the part of the property owner in complying with the merger by contiguity requirements. The conveyance of lots and/or parcels out of common ownership on or after the effective date of this Part II shall not, by itself, constitute adequate grounds for granting a variance.

The effective date of this Subsection K. is November 12, 1992.

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