County Zoning Plan
to Nonconforming Uses, Buildings and Lots or Parcels
Updated February 5, 1999
how the potential application of zoning will effect the legal status
of pre-existing uses, buildings and lots or parcels is an issue
of concern to many property owners and residents in the Eastern
County. Nonconforming status, or what is commonly referred to as
"grandfathering" is formally governed by Section 35.2
of the El Paso County Land Development Code. In cases where
an interpretation of the Code may be needed, this is done
by the Planning Director and is appealable to the Board of County
Commissioners or the Board of Adjustment depending on the specific
issue. State statutes and case law also have bearing on the content
of the County's regulations and how they are implemented. What follows
is more of a layman's explanation of the basis of these regulations
and how they are applied. Uses, Buildings and Lots (or Parcels)
are each discussed separately because they are treated somewhat
differently under the Code.
basis for nonconforming use, building and lot regulations is an
attempt to reach a compromise between two somewhat competing objectives.
The first is to protect the prior investment of an owner in the
physical development of a property from the impact of subsequent
changes in regulations. The second is to create an environment that
will (at least theoretically) bring the property into eventual compliance
with the new regulation. This second objective is what provides
the basis for the abandonment provisions that are included in the
Code. If the legally nonconforming condition no longer exists
on the property, the idea is that the property should be then treated
like others around it.
qualify for legal nonconforming status, the use, building or parcel
must generally be legally existing prior to the establishment of
the new regulation. Future plans to further develop a property do
not normally constitute a basis for legal nonconforming status.
Legal nonconforming status runs with the property and not the owner.
Therefore, a property can be conveyed to a new owner with no reduction
to nonconforming status. It is incumbent on the property owner to
reasonably demonstrate that the nonconforming condition existed
prior to the new or revised regulation. Owners who wish to do something
which does not qualify as legally nonconforming may have the option
of achieving compliance by either modifying their plans or applying
for a rezoning, subdivision or Variance of Use
Land Development Code defines nonconforming uses as
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 district in which such "nonconforming use
is located, ether at the effective date of the resolution establishing
the district or as a result of the subsequent amendments which may
be incorporated of the Zoning Resolutions or due to the zoning or
rezoning of the property on which the use is situated"
use not listed in a zone district, but which otherwise legally existed
would be "grandfathered" in. The same would be true of
uses which are listed in the new zone district as Subject to Special
Review, but which were never specifically approved. Likewise, uses
which are listed but do not meet all the development criteria for
the new zone, would also be legally nonconforming.
nonconforming uses that are discontinued for more than one year
cannot be resumed. Uses that are partially or totally destroyed
by any means can not be restored without approval by the Board of
County Commissioners. Nonconforming uses in buildings can be extended
throughout the existing building. Nonconforming uses of the land
can not be extended or enlarged without approval by the Board of
buildings are defined as:
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 rezoning of the property on which the building is located"
buildings may be structurally repaired, altered or enlarged in any
way that does not increase their nonconformity with the location
and bulk requirements of the Code. Changes that are or are
not allowed are dependent on the specific circumstances. In some
cases, a legally nonconforming building might be allowed to expand
but a legally nonconforming use in it could not be expanded.
Lots or Parcels
nonconforming lot or parcel is defined as:
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 parcels
shall be benefited and burdened by the privileges and restrictions
of the applicable zoning district, except as otherwise provided
in subsection K. below" (Section 35.2 of the Code)
use of the terms "lot" and "parcel" is understandably
confusing. For these purposes lots refer to platted or subdivided
property, and parcels refer to land which has not been subdivided.
Platting of smaller lots (such as those in Peyton and Ramah) occurred
over 100 years ago. Subdivision has occurred for many decades. There
was a significant change in the middle of 1972 which essentially
requires most splits of property to go through a subdivision process
if any property to be created will be less than 35 acres.
the Eastern County zoning issue there are two key areas of concern
with lot or parcel sizes. The first is that extensive use of a 35-acre
zone will create a number parcels and lots which are less than the
minimum lot size. Assuming these lots or parcels were legally created,
they will be considered either legally conforming or legally nonconforming
depending on the situation. For example, a person desiring to place
one home on a vacant 5-acre parcel zoned A-35 would have the same
ability to do this as a person owning a 35 acre parcel. Both have
to meet the development requirements such as building setbacks.
For this purpose, the County's regulations consider both properties
to be fully conforming in terms of area. If the existing lot or
parcel is extremely small (e.g. a 25' x 100' town lot outside of
Ramah) but otherwise legal the situation becomes more complicated.
This "lot of record" is acknowledged, but several adjoining
lots under the same ownership may be considered combined for zoning
purposes. An extremely small lot with all different adjoining owners
may not be buildable without a variance because there is no way
to site both a septic system and a well on the same property in
a way which will not either create a clear health hazard or adversely
impact the neighboring properties. Some lots and parcels will be
legally conforming for some uses and legally nonconforming for others.
This is because the proposed revised A-35 district will include
alternative minimum lot sizes. For example a minimum standard of
35 acres is being recommended for new livestock sales and feed yards,
regardless of nonconforming status. What this means is that such
a use would be allowed to continue on a 5-acre parcel if the use
was there before zoning, but the owner of a 5-acre parcel without
such a use could not establish the use after zoning. The premise
is that there are some uses which are wholly inconsistent with smaller
properties and the normal protection of legal nonconforming lot
or parcel status should not be conferred to these uses.
second key area of concern with smaller lots and parcels has to
do with legal creation. Some of those parcels less than 35 acres
which have been created since mid-1972 have been created outside
the required subdivision process and do not qualify for any of the
exemptions from this requirement. These illegal subdivisions do
not necessarily qualify for any protection under conforming or nonconforming
following examples demonstrate how nonconforming regulations would
generally be applied in the Eastern County. These are for general
descriptive purposes only, and in all cases it is assumed the uses
and structures are otherwise legal and there are no special circumstances.
Prior to zoning I have a total of 3 dwelling units on
my 35-acre property (1 house and 2 mobile homes). I live in the
house and rent the 2 mobile homes to non-family members who are
not employed on the property. The proposed A-35 district* will allow
only 2 total dwelling units under these circumstances.
Can I enlarge my house? Yes, because it would be considered
a conforming principally permitted use.
Can I replace one or both of the mobile homes with newer
mobile homes of the same size? Yes because this does not substantially
increase the degree of nonconformity. The owner still has the same
number of mobile homes of the same size. However, replacement of
all the mobile homes with larger mobile homes would not be allowed
as this increases the degree of nonconformity. True mobile home
parks are treated differently in that the park is what is considered
the legally nonconforming use, and not the individual homes in it.
Therefore, in legally nonconforming parks the replacement mobile
homes can be larger.
Can I replace one of my mobile homes with a house? Yes, because
one of them would be considered the legally conforming second unit
allowed in the A-35 district as proposed to be modified.
Can I then replace the other mobile home with a house?
No, because this would be substantially increasing the degree of
Can I add a 4th dwelling unit on the property because I
had planned to do this before zoning and had based my decision to
buy the property on being able to do this? No, future plans
do not confer legal nonconforming status
Can I add a commercial stable as a use even though my property
is not completely in conformity with zoning? Yes, the A-35 district
as proposed to be revised, will allow commercial stables as a principally
permitted use. This zone district allows multiple permitted uses
on the same property as long as they meet the development requirements
of the A-35 District.
currently recommended by the Planning Dept. 2/5/99
Prior to zoning to the A-35 District I have had a
trucking business on my property which consists of approximately
residence, one mobile home occupied by an employee, and an additional
mobile home used as an office.
-A 3,000 square foot metal building used to park or repair trucks
and hold miscellaneous equipment.
-Six trucks and 2 other vehicles of various sizes, all of which
are used in the business and kept on the property while not being
-A total of up to eight employees, at various times of the year,
not including immediate family members
I have plans to remove some of the clutter from inside
the building so I can install a hydraulic lift to better repair
trucks. Additionally, my son the mechanic is moving on and I want
to hire both a mechanic to replace him and an office manager to
help me keep the business running. This will give me a total of
ten (10) outside employees at peak times. Will I be allowed to do
this without having to change the zoning or get a variance of use?
Probably, from a zoning standpoint. Expansion of a business within
a pre-existing building is allowed under legal nonconforming status.
The number of employees is also not strictly governed so long as
the nature and physical extent of the use does not significantly
expand. There may be other regulations that would come into play.
For example well and septic permit limitations might not allow the
I would like to keep the current business with no
change in building space or total employees but also designate a
large area to rent out for the storage of heavy construction equipment.
Can I do this? Probably not, because this is a new use (Heavy
Equipment Sales, Supply and Storage) it is not allowed in the zone
and would add substantially to the degree of nonconformity.
My business is expanding, and I would like to get rid of the
mobile home office and replace it with a 4,000 square foot office
building? Can I do this? Probably not, since it constitutes
expansion of a use not allowed in the zone district. The building
itself might be legally conforming, but it would be disapproved
based on the fact it would house a use not allowed in the zone district.
I would like to keep my legally nonconforming business pretty
much as is but also go into the livestock auction business? Can
I do this? Possibly, because livestock feed and sales yards
are Uses Subject to Special Review in the A-35 zone. This requires
an approval by the County Commissioners subject to review based
on standards. Issues such as access, traffic, water and sewer capacity
and impacts to neighboring properties would be considered.
Shortly after zoning I got out of the trucking business and began
operating a commercial stable on this property. Now I have decided
I want to start up again based on the fact that there used to be
such a business on this property? The trucking business can
only start back up again if it has not operated for a period of
less than one year.
How do I go about establishing nonconforming status?
In all cases the burden to prove any nonconforming status exists,
rests with the property owner and not with the County. Documentation
which has been commonly used to prove nonconforming status has included
such information as Assessor's records, utility bills, tax information,
licenses, photographs including aerial photos and affidavits.
welcome your suggestions/ input/ questions sent to
El Paso County Planning Division
27 East Vermijo
Colorado Springs, Colorado 80903
or to firstname.lastname@example.org