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Eastern County Zoning Plan
Introduction to Nonconforming Uses, Buildings and Lots or Parcels
Updated February 5, 1999

Introduction

Exactly 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.

Overall Concept

The 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.

To 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

Nonconforming Uses

The Land Development Code defines nonconforming uses as

"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 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"

Any 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.

Legally 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 County Commissioners.

Nonconforming Buildings

Nonconforming buildings are defined as:

"..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 rezoning of the property on which the building is located"

Nonconforming 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.

Nonconforming Lots or Parcels

A nonconforming lot or parcel is defined as:

".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 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)

The 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.

For 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.

The 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 status.

EXAMPLES:

The 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.

A.   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.

1.  Can I enlarge my house? Yes, because it would be considered a conforming principally permitted use.

2.  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.

3.  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.

4.  Can I then replace the other mobile home with a house? No, because this would be substantially increasing the degree of nonconformity.

5.  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

6.  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.

*As currently recommended by the Planning Dept. 2/5/99

B.   Prior to zoning to the A-35 District I have had a trucking business on my property which consists of approximately the following:

-My 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 used.
-A total of up to eight employees, at various times of the year, not including immediate family members

1.   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 expansion.

2.   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.

3.   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.

4.   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.

5.   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.

6.   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.

We welcome your suggestions/ input/ questions sent to
El Paso County Planning Division
27 East Vermijo
Colorado Springs, Colorado 80903
or to plnweb@elpasoco.com

Operational Director
Mike Hrebenar

Engineering Division Manager
Paul Danley

Current Planning Manager
  Elaine Kleckner

Location:
2880 International Circle Colorado Springs, CO 80910

Telephone:
(719)520-6300

Fax:
(719)520-6695

Hours:
7:30AM - 4:30PM
Monday - Thursday
(except holidays)

Copyright 2005
El Paso County, CO

 

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