HomeMy WebLinkAboutagenda.apz.worksession.20260506AGENDA
ASPEN PLANNING & ZONING
COMMISSION
May 6, 2026
4:30 PM, Council Chambers
3rd Floor, 427 Rio Grande Pl,
Aspen
I.Work Session
I.A P&Z Work Session - Nonconformities Code Update
Staff Report_P&Z Work Session, Nonconformities Code Update.pdf
Exhibit A _Work Session PowerPoint.pdf
Attachment B_Best Practicies.pdf
Attachment C_Example Land Use Cases.pdf
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P&Z Work Session, Nonconformities
Page 1 of 8
STAFF REPORT
TO: Planning and Zoning Commission
FROM: Jeff Barnhill, Principal Planner
Haley Hart, Senior Long Range Planner
Tillie Pines, Planner I
THROUGH: Dan Folke, Planning Director
MEETING DATE: May 6th, 2026
SUBJECT: Nonconformities Code Update Work Session
INTENDED OUTCOME:
Staff seeks the Planning and Zoning Commission’s (P&Z) input on review criteria
amendments and recommendations to nonconforming structure regulations within
Section 26.312 - Nonconformities, and Section 26.430.040 – Review standards for
special review. The P&Z requested that staff make amendments to bring clarity on
intended outcomes when a residential nonconformity is expanding its gross square
footage but is complying with underlying zoning’s countable floor area, and the
hierarchy of review in relation to Environmentally Sensitive Areas (ESAs). P&Z’s
direction will guide staff in creating updated and/or new review criteria and a
comprehensive code amendment.
As this is a Work Session, staff solely seeks policy direction from P&Z, there will not be
a Resolution at this time. With high level input from P&Z, and input from local planning
firms and architecture firms, staff will formulate proposed changes to code text in
support of an eventual, formal amendment proposal.
EXECUTIVE SUMMARY:
This topic was introduced to City Council from the request of P&Z via Policy Resolution
#118, Series of 2025. With a 5-0 vote approving the Resolution, Council gave staff
direction to make amendments to these sections for better alignment and greater clarity
around nonconformities seeking redevelopment. Since approval, staff has created an
inner working group, conducted research on other municipal best practices, and created
a comprehensive slide-deck and policy overview to present to P&Z (see Exhibit A).
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P&Z Work Session, Nonconformities
Page 2 of 8
This information-only report describes reoccurring issues present across the review of
nonconforming structures by staff and P&Z. The intended outcome of this process will
result in new review criteria with clearly stated outcomes when evaluating
nonconforming structures in relationship to underlying zoning, gross floor area, and
ESAs.
DISCUSSION:
The Community Development Department and P&Z frequently review Land Use Cases
that have legally established non-conforming structures that request to maintain the
nonconformity while expanding gross square footage. The Land Use Code requires
applicants to meet two separate sections of review criteria to continue use of a
nonconformity: Section 26.312.030. - Non-conforming structures and Section
26.430.040. - Review standards for special review. Staff’s perspective on the Authority
to Continue a nonconformity is shaped by two primary aspects, the intent of the chapter,
and the code language and review standards.
The intention of Section 26.312- Nonconformities is:
“Within the Zone Districts established by this Title, there exist uses of land,
buildings and structures that were lawfully established before this Title was
adopted or amended which would be in violation of the terms and requirements
of this Title. The purpose of this Chapter is to regulate and limit the continued
existence of those uses, buildings and structures that do not conform to the
provisions of this Title as amended.
It is the intent of this Chapter to permit nonconformities to continue, but not to
allow nonconformities to be enlarged or expanded. The provisions of this Chapter
are designed to curtail substantial investment in nonconformities in order to
preserve the integrity of the zone districts and the other provisions of this Title but
should not be construed as an abatement provision.”
The purpose statement of Section 26.312 - Nonconformities is:
“to regulate and limit the continued existence of those uses, buildings and
structures that do not conform to the provisions of this Title as amended”
The Nonconformities chapter also includes the following code language and review
criteria in: Section 26.312.030.C – Extensions:
“Extensions. A nonconforming structure shall not be extended by an enlargement
or expansion that increases the nonconformity. A nonconforming structure may
be extended or altered in a manner that does not change or that decreases the
nonconformity.”
And, Section 26.312.030.F.2 – Purposeful destruction:
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P&Z Work Session, Nonconformities
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“Purposeful destruction. Any nonconforming structure which is purposefully
demolished or destroyed may be replaced with a different structure only if the
replacement structure is in conformance with the current provisions of this Title or
unless replacement of the nonconformity is approved pursuant to the provisions
of Chapter 26.430, Special Review...”
Staff acknowledges that the code also emphasizes, and desires, continued use and
extended lifespan for existing structures when demolition is not triggered. Yet, staff and
P&Z alike have difficulty evaluating the current review criteria against nonconformities
that meet the definition of purposeful destruction when a redevelopment increases the
Gross Floor Area as it is not expressly prohibited by underlying zoning. Staff additionally
recognizes that the term Gross Floor Area and Mitigation Floor Area as defined in
Section 26.104.100 – Definitions, is in the code and commonly used when evaluating
the intensity, mass, scale, and associated impacts of structures during the land use and
permitting process.
Section 26.104.100 – Definitions:
“Floor Area, Gross. Gross floor area is the total horizontal area of all floors in a
building, and of all floors in any accessory structure on the same lot, measured
from the exterior face framing of the exterior walls (See Section 26.575.020(d)),
or the centerline of a common wall separating two (2) buildings, but excluding
unenclosed balconies.”
“Floor Area, Mitigation. The Gross Floor Area of a structure minus exclusions
included in Section 26.575.020(d). This floor area measurement is used to
assess required affordable housing mitigation for a given project.”
Specifically, the review criteria under Section 26.430.040(b).4: “Literal enforcement of
the dimensional provisions of the zone district would cause unnecessary hardship upon
the owner by prohibiting reasonable use of the property,” brings further difficulties as
literal enforcement of the dimensional provisions of the zone district typically may not
cause unnecessary hardship upon property owners as all properties are allowed
redevelopment to an extent within the constraints of these two chapters. Staff
additionally recognize there is not clarity on the intersection and hierarchy of other
nonconformities such as ESAs.
In response, staff have contemplated the issues at hand through three problem
statements:
1. Unclear Criteria
26.430.040 (b)(4) Literal enforcement of the dimensional provisions of the
zone district would cause unnecessary hardship upon the owner by
prohibiting reasonable use of the property.
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P&Z Work Session, Nonconformities
Page 4 of 8
Problem Statement: The Review Criteria are unclear for staff to provide
recommendation of projects and for P&Z to make evaluations on because
the terms “unnecessary hardship” and “reasonable use” are not defined.
Additionally, there is a disconnect between the current review process of
Nonconformities and the redevelopment definitions of Destruction and
Demolition. All work, big or small, that does not hit the Demolition
threshold requires Special Review for Destruction. Projects that qualify for
Destruction vary greatly in scale, mass, and impact, but the current review
process does not differentiate review paths.
2. Updated Outcomes
Problem Statement: At present, the Intent of 26.312 – Nonconformities
conflicts with the use of Floor Area Exemptions. Nonconforming structures
may expand their Gross Floor Area without bringing the nonconformity into
compliance. Houses over Allowable Floor Area frequently use Floor Area
Exemptions (subgrade, garage, deck) to further expand their Gross Floor
Area. Gross Floor Area is not a dimensional standard evaluated per
Chapter 26.312 - Nonconformities or 26.430 – Special Review.
3. Combined Review
Problem Statement: It is unclear which project elements and review
criteria should be prioritized when reviewing for nonconforming
Environmentally Sensitive Areas (ESA’s) and Special Review for
nonconforming dimensional standards (height, setback, floor area) that
intersect with each other.
As staff contemplate the requests from P&Z for the problem statements above, staff see
outcomes for code updates summarized by five policy questions below. Staff requests
P&Z to contemplate the policy questions below when thinking holistically on an update
to the code and come prepared to discuss these questions during the Work Session:
1. What outcomes would P&Z like to see in situations where nonconforming
structures are taking advantage of subgrade basement floor area, but not being
brought into conformance?
2. Should deck and garage exemptions be treated like subgrade exemptions, or
should they be treated differently?
3. How should ESAs be considered? What is the hierarchy of review?
4. Should there be an Administrative Path for Special Review in addition to P&Z
Special Review for certain situations with more desirable outcomes?
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P&Z Work Session, Nonconformities
Page 5 of 8
5. Should the purpose statement within the Nonconformities Chapter change to
align with these outcomes?
Staff believe that the outcomes of the conversation around the five policy questions can
be defined through the following policy topics which are all based on best practices from
municipalities researched (see Exhibit B) and current review criteria (see flowchart,
Figure 1):
• Update the Purpose and/or Intent Statement
• Define currently ambiguous terms (i.e., Normal Maintenance)
• Create new definitions for further clarification (i.e., Gross Floor Area)
• Create new Review Criteria
o When redevelopment is expanding gross floor area
Are there different criteria for subgrade floor area exemptions than
for deck and garage exemptions?
o When redevelopment is not expanding gross floor area
Perhaps there is an Administrative Path
o When redevelopment is serving a Community Benefit (affordable housing,
fire safety, reduced carbon footprint, electrification, bear safety etc.)
• Define the hierarchy for ESA nonconformities and dimensional standard
nonconformities
Figure 1. Flowchart of Potential Policy Topics
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P&Z Work Session, Nonconformities
Page 6 of 8
To attempt to evaluate these ideas, and by no means should this be a completed list,
staff will look to P&Z to further explore these topics, staff has put together a ‘menu’ from
least restrictive to most restrictive in thinking how these concepts might work together
for each topic (see Figure 2). Staff has put this example together for exempt subgrade
floor area, as that is the main topic P&Z requested to evaluate, but believe this exercise
could be helpful for each topic as a means to ‘pick’ which policy topics should be
explored when creating the updated outcomes of these two LUC sections.
Staff’s exercise in this is to show P&Z that the ‘menu’ of choices is flexible pending the
desired policy outcomes for each component of the nonconformities code change (i.e.,
subgrade floor area, deck floor area, garage floor area, ESAs). Additionally, staff have
contemplated policy outcomes using example land use cases within Exhibit C.
Staff anticipate new criteria from this policy menu exercise being adopted through a fifth
review criteria with potential sub-criteria, within Section 26.430.040(b) - Replacement of
nonconforming structures. Again, the intent of this exercise is to bring clarity on intended
outcomes when a residential nonconformity is expanding its gross square footage but is
complying with underlying zoning’s countable floor area, and the hierarchy of review in
relation to ESAs.
Below is an example of potential review criteria:
Figure 2. Policy Topics Menu, Subgrade
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P&Z Work Session, Nonconformities
Page 7 of 8
Sec. 26.430.040(b).5
(5) If a structure with nonconforming floor area meets the definition of destruction and
the project applies the exemptions for exempt subgrade floor area the following must be
met:
(i) The proposed redevelopment meets the Intent and Purpose statements of
Section 26.312 – Nonconformities; and,
(ii) “Mitigation Floor Area” as defined in Section 26.104.100 - Definitions, and further
discussed in Section 25.575.020(d) - Measuring Floor Area, is reduced; and,
(iii) Reduces the non-conforming aspects of the property; and,
(iv) Is improving other non-conforming aspects such as an ESA, height, setbacks, or
other dimensional nonconformities.
(v) If Criteria 1-4 are not met, the project must demonstrate it serves a Community
Benefit.
RECOMMENDATIONS: P&Z’s direction along with community input from the planning
and architectural community will guide staff in creating updated and/or new review
criteria for a comprehensive code amendment. Staff seeks P&Z’s feedback and
recommendations on policy outcomes for the amendments within Section 26.312 -
Nonconformities, and Section 26.430.040 – Review standards for special review. Staff
recommend the following responses to the proposed Policy Questions:
1. What outcomes would P&Z like to see in situations where nonconforming
structures are taking advantage of subgrade basement floor area, but not being
brought into conformance?
Staff Response: No increase allowed to exempt subgrade floor area when the
structure is over its allowable floor area.
2. Should deck and garage exemptions be treated like subgrade exemptions, or
should they be treated differently?
Staff Response: Deck and garage exemptions create different situations than the
subgrade floor area. Staff recommends the allowance of deck and garage floor
area exemptions.
3. How should ESAs be considered? What is the hierarchy of review?
Staff Response: ESA’s should be considered, but staff does not have an option
at this time on the hierarchy of review.
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P&Z Work Session, Nonconformities
Page 8 of 8
4. Should there be an Administrative Path for Special Review in addition to P&Z
Special Review for certain situations with more desirable outcomes?
Staff Response: An administrative review should be considered by P&Z for
certain situations, but Staff has not contemplated these potential scenarios
further.
5. Should the purpose statement within the Nonconformities Chapter change to
align with these outcomes?
Staff Response: The purpose statement and possibly the intent statement could
be rewritten to better align with updated policy outcomes.
ATTACHMENTS:
Attachment A – Work Session PowerPoint
Attachment B – Best Practices
Attachment C – Example Land Use Cases
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P&Z has requested that staff make amendments to Nonconformity Code Language
including Section 26.312. – Nonconformities, and Section 26.430.040. - Review
standards for special review, to create and bring clarity around Review Criteria and
intended outcomes for nonconforming structures.
Specifically, when a residential nonconformity is expanding its gross/mitigated square
footage but is complying with underlying zoning’s countable floor area in addition to the
hierarchy of review in relation to Environmentally Sensitive Areas.
Background
10
Agenda
•Process & Timeline
•History & Overview of Code Sections
•Problem Statements
•Policy Questions & Menu of Options
–Includes overview of mock cases
•Staff Recommendations
11
Sec. 26.310.020. - Amendments to the Land Use
Code procedure for amendment.
1.Policy Resolution approved by City Council to open the Land Use Code
2.P&Z Work Session
3.Community Input (Work with Architecture Firms & Planning Firms)
4.First Reading of Ordinance
5.Planning & Zoning Commission (P&Z) and Historic Preservation
Commission (HPC) Recommendation via Resolution
6.Community Input
7.Recommendation by Community Development Director
8.Second Reading Public Hearing before City Council
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Code Amendment Process
2025 September Policy Resolution #118, Series of 2025
Q4 Staff Research & Internal Working Group Formed
2026
Q1 Continued Working Group Research
April City Council Work Session with P&Z
May P&Z Discussion and Information Only Memo
Targeted Outreach to Planning & Architecture Firms
Q2 First Reading of Ordinance, P&Z Recommendations via
Resolution, & General Public Outreach*
Q3 Second Reading of Ordinance*
*Subject to Change. Staff can do a second Work Session with P&Z
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History
•The topic of Nonconformities was
created with the adoption of Aspen’s
first Zoning Code in 1956.
–Nonconformities were not to be
extended but could have ordinary
repairs
•In Ordinance #11, Series of 1981, the
Planning Office responded to
requests of P&Z and Council to
regulate the excessive area and bulk
in SFR developments
–Codified the exclusion of
subgrade and basement floor
area calculations in SFR and
Duplex structures
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Section 26.104.100 - Definitions
Demolition. To raze, disassemble, tear down
or destroy forty (40) percent or more of an
existing structure (prior to commencing
development) as defined and described in
Chapter 26.580. For the method of determining
demolition, see Section 26.580.040,
Measurement of demolition. Demolition shall
also include the removal of a dwelling unit in a
multi-family or mixed-use building, its
conversion to nonresidential use, or any action
which penetrates demising walls or floors
between Multi-Family Housing Units if such
action is undertaken to combine the units. (See
Section 26.470.100(d), Demolition or
Redevelopment of Multi-Family Housing.)15
Section 26.104.100 - Definitions
Destruction. To remove, disassemble, tear
down or destroy portions of a building or
structure where the proposed scope does not
exceed the forty (40) Demolition threshold as
defined by Section 26.580, Demolition.
Nonconforming structure. A structure which
was originally constructed in conformity with
zoning and building codes or ordinances in
effect at the time of its development, but which
no longer conforms to the dimensional or other
requirements imposed by this Title for the zone
district in which it is located.
16
Floor Area, Allowable. The total amount of floor area allowed on a property based on the limitations and allowances in the applicable zone district in Title 700 and calculated pursuant to Section 26.575.020(d), Calculations and Measurements.
Floor Area, Gross.Gross floor area is the total horizontal area of all floors in a building, and of all floors in any accessory structure on the same lot, measured from the exterior face framing of the exterior walls (See Section 26.575.020(d)), or the centerline of a common wall separating two (2) buildings, but excluding unenclosed balconies.
Floor Area, Mitigation.The Gross Floor Area of a structure minus exclusions included in Section 26.575.020(d). This floor area measurement is used to assess required affordable housing mitigation for a given project.
Section 26.104.100 - Definitions
17
26.312 – Nonconformities
Section 26.312.010. - Purpose.
Within the Zone Districts established by this Title, there exist uses of land,
buildings and structures that were lawfully established before this Title was
adopted or amended which would be in violation of the terms and requirements of
this Title. The purpose of this Chapter is to regulate and limit the continued
existence of those uses, buildings and structures that do not conform to the
provisions of this Title as amended.
It is the intent of this Chapter to permit nonconformities to continue, but not to
allow nonconformities to be enlarged or expanded. The provisions of this Chapter
are designed to curtail substantial investment in nonconformities in order to
preserve the integrity of the zone districts and the other provisions of this Title but
should not be construed as an abatement provision
18
Purpose & Intent of the Nonconformities Chapter
“The purpose of this Chapter is to regulate and limit the continued
existence of those uses, buildings and structures that do not conform to
the provisions of this Title as amended”
“It is the intent of this Chapter to permit nonconformities to continue, but
not to allow nonconformities to be enlarged or expanded.”
…Community Development acknowledges that the code also
emphasizes, and desires, continued use and extended lifespan for
existing structures when demolition is not triggered.
19
26.312.030 – Nonconforming structures
Structures cannot:
Be enlarged to increase the nonconformity
Be relocated without conforming to zoning standards
(f) (2) Purposeful destruction. Any nonconforming structure that is
purposefully Demolished or portion thereof which is purposefully
destroyed, may be replaced with a different structure only if the
replacement structure is in conformance with the current provisions of this
Title or unless replacement of the nonconformity is approved pursuant to
the provisions of Chapter 26.430, Special Review.
20
26.430 – Special Review
Applicable to:
•Dimensional requirements (Chapter 26.710, Zone Districts)
•Replacement of nonconforming structures (Chapter 26.312)
•Reduction of open space requirements in CC Zone District (Section 26.575.030(b))
•Off -street parking requirements (Section 26.515.040)
•Reductions in the dimensions of utility and delivery service area provisions
•Subdivision standards (Section 26.480.050)
•Accessory Dwelling Unit Design Standards (Chapter 26.520)
•Wireless telecommunications facilities and/or equipment (Section 26.575.130)
•Affordable housing unit standards
•Variations to the Residential Demolition and Redevelopment Standards (Chapter 26.580)
•Outdoor lighting (Chapter 26.512)
21
Current Review Criteria: Sec. 26.430.040. - Review
standards for special review.
(a) Dimensional requirements. Whenever the dimensional requirements of a proposed development
are subject to special review, the development application shall only be approved if the following
conditions are met.
(1) The mass, height, density, configuration, amount of open space, landscaping and
setbacks of the proposed development are designed in a manner which is compatible with
or enhances the character of surrounding land uses, and is consistent with the purposes of the
underlying zone district, does not increase the net leasable area, the net livable area of a
dwelling unit, the area within a structure in which a nonconformity is located, or ESA if
applicable.
(2) The applicant demonstrates that the proposed development will not have adverse
impacts on surrounding uses, ESAs, or will mitigate those impacts, including but not limited to
the effects of shading, excess traffic, availability of parking in the neighborhood or blocking of a
designated view plane.22
Current Review Criteria: Sec. 26.430.040. - Review
standards for special review.
(b)Replacement of nonconforming structures. Whenever a structure or portion thereof, which does not conform to the dimensional requirements of the zone district or ESA in which the property is located is proposed to be replaced after Demolition or destruction, the following criteria shall be met:
(1) The proposed development shall comply with the conditions of Section 26.430.040(a) above;
(2) There exist special characteristics unique to the property which differentiate the property from other properties located in the same zone district;
(3) No dimensional variations are increased, and the replacement structure represents the minimum variance that will make possible the reasonable use of the property; and
(4) Literal enforcement of the dimensional provisions of the zone district would cause unnecessary hardship upon the owner by prohibiting reasonable use of the property.
23
Nonconformity
being brought into
full conformance
(straight to permit)
Work on a nonconforming property
(Normal Maintenance may be performed so long as it does not exceed 10% of replacement cost)
Structure brought into full conformance of Title 26 (straight to permit)
Demolition is triggered
Planning and Zoning Commission Special Review to continue Nonconformity
OR
Destruction occurs
Interior only or
have exterior
change that are
limited to siding
and fenestration
(straight to permit)
OR
OR
Planning and Zoning Commission Special Review to continue Nonconformity when significant redevelopment that involves extensive destruction of exterior features
24
Problem #1: Unclear Criteria
26.430.040 (b)(4) Literal enforcement of the dimensional provisions of the zone district would cause unnecessary hardship upon the owner by prohibiting reasonable use of the property.
The Review Criteria are unclear for staff to provide recommendation of projects and for P&Z to make evaluations on because the terms “unnecessary hardship” and “reasonable use” are not defined. Additionally, there is a disconnect between the current review process of Nonconformities and the redevelopment definitions of Destruction and Demolition. All work, big or small, that does not hit the Demolition threshold requires Special Review for Destruction. Projects that qualify for Destruction vary greatly in scale, mass, and impact, but the current review process does not differentiate review paths.
25
Problem #2: Updated Outcomes
Problem Statement: At present, the Intent of 26.312 –
Nonconformities conflicts with the use of Floor Area
Exemptions. Nonconforming structures may expand
their Gross Floor Area without bringing the
nonconformity into compliance. Houses over Allowable
Floor Area frequently use Floor Area Exemptions
(subgrade, garage, deck) to further expand their Gross
Floor Area.
Gross Floor Area is not a dimensional standard
evaluated per Chapter 26.312 - Nonconformities or
26.430 – Special Review.
26
Problem #3: Combined Review
Problem Statement: It is unclear which
project elements and review criteria should be
prioritized when reviewing for nonconforming
Environmentally Sensitive Areas (ESA’s) and
Special Review for nonconforming dimensional
standards (height, setback, floor area) that
intersect with each other.
27
Policy Questions
1.What outcomes would P&Z like to see in situations where nonconforming structures are taking advantage of subgrade basement floor area, but not being brought into conformance?
2.Should deck and garage exemptions be treated like subgrade exemptions, or should they be treated differently?
3.How should ESAs be considered? What is the hierarchy of review?
4.Should there be an Administrative Path for Special Review in addition to P&Z Special Review for certain situations with more desirable outcomes?
5.Should the purpose statement within the Nonconformities Chapter change to align with these outcomes?
28
Topics to Contemplate
Exempt Floor
Area: Subgrade
Exempt Floor
Area:
Garage/Carport
Exempt Floor
Area: Deck
Inclusion of
Nonconforming
ESAs
Exempt Floor
Area: Subgrade
Garage
Other Nonconformities & Hierarchy of Importance
29
How We Get There
Administrative
Path in Addition to
Board Path
Update Purpose/
Intent Statement,
New/Update
Definitions
New Review
Criteria that
Creates Greater
Clarity
Determine Policy Outcomes for
Subgrade, Garage/Carport,
Subgrade Garages, Deck, ESAs
30
Policy Topics
Straight to
Permit
Combined
Review
Administrative
Review
Limits to
Gross Floor
Area
No Limits
on Gross
Floor Area
Community
Benefit
Demolition
is triggeredDestruction
occurs
Intent of
Chapter
Dimensional
Standards
Normal
Maintenance/
Definition
No Increase
to Gross
Floor Area
Subgrade
Floor area v.
Deck &
Garage
Purpose of
Chapter
ESAsImprovement
of other
Nonconformities
??????
Reduction of
Nonconformity
P&Z Review
31
1. Exempt Floor Area: Subgrade
Least
Regulation
Medium Regulation Most
Regulation
If destruction
or demolition is
triggered,
allow
replacement
of structure.
Admin review,
meets the
intent of the
chapter, no
limit on Gross
Floor Area or
Calculated
Floor Area.
Allow normal
maintenance.
If destruction
occurs, P&Z
Special
Review, meets
the intent of
the chapter,
no limit on
Gross Floor
Area or
cannot
increase
Calculated
Floor Area.
Allow normal.
If destruction
occurs, P&Z
Special
Review, meets
the intent of
the chapter,
some sort of
limit on Gross
Floor Area,
cannot
increase
Calculated
Floor Area.
Allow normal
maintenance.
If destruction
occurs, P&Z
Special
Review, meets
the intent of
the chapter,
some sort of
limit on Gross
Floor Area,
cannot
increase
Calculated
Floor Area.
Allow normal
maintenance
– limit based
on valuation
and time.
If destruction
occurs, P&Z
Special
Review, meets
the intent of
the chapter,
some sort of
limit on Gross
Floor Area,
must reduce
Calculated
Floor Area by
25% of
overage.
Allow normal
maintenance
– limit based
on valuation
and time.
If destruction
occurs, P&Z
Special
Review, meets
the intent of
the chapter.
Bring into
compliance
with
underlying
zoning. Allow
normal
maintenance
– limit based
on valuation
and time.
No Special
Review, bring
into
conformance
with
underlying
zoning. Do not
allow normal
maintenance.
A B C D E F G H
32
2. Exempt Floor Area: Garage/Carport
Least
Regulation
Medium Regulation Most
Regulation
If destruction
or demolition is
triggered,
allow
replacement
of structure.
Admin review,
meets the
intent of the
chapter, no
limit on Gross
Floor Area or
Calculated
Floor Area.
Allow normal
maintenance.
If destruction
occurs, P&Z
Special
Review, meets
the intent of
the chapter,
no limit on
Gross Floor
Area or
cannot
increase
Calculated
Floor Area.
Allow normal.
If destruction is
triggered, P&Z
Special
Review, meets
the intent of
the chapter,
some sort of
limit on Gross
Floor Area,
cannot
increase
Calculated
Floor Area.
Allow normal
maintenance.
If destruction is
triggered, P&Z
Special
Review, meets
the intent of
the chapter,
some sort of
limit on Gross
Floor Area,
cannot
increase
Calculated
Floor Area.
Allow normal
maintenance
– limit based
on valuation
and time.
If destruction is
triggered, P&Z
Special
Review, meets
the intent of
the chapter,
some sort of
limit on Gross
Floor Area, no
increase to
Calculated
Floor Area.
Allow normal
maintenance
– limit based
on valuation
and time.
If destruction is
triggered, P&Z
Special
Review, meets
the intent of
the chapter.
Bring into
compliance
with
underlying
zoning. Allow
normal
maintenance
– limit based
on valuation
and time.
No Special
Review, bring
into
conformance
with
underlying
zoning. Do not
allow normal
maintenance.
A B C D E F G H
33
3. Exempt Floor Area: Deck
Least
Regulation
Medium Regulation Most
Regulation
If destruction
or demolition is
triggered,
allow
replacement
of structure.
Admin review,
meets the
intent of the
chapter, no
limit on Gross
Floor Area or
Calculated
Floor Area.
Allow normal
maintenance.
If destruction
is triggered,
P&Z Special
Review, meets
the intent of
the chapter,
no limit on
Gross Floor
Area or
cannot
increase
Calculated
Floor Area.
Allow normal.
If destruction is
triggered, P&Z
Special
Review, meets
the intent of
the chapter,
some sort of
limit on Gross
Floor Area,
cannot
increase
Calculated
Floor Area.
Allow normal
maintenance.
If destruction is
triggered, P&Z
Special
Review, meets
the intent of
the chapter,
some sort of
limit on Gross
Floor Area,
cannot
increase
Calculated
Floor Area.
Allow normal
maintenance
– limit based
on valuation
and time.
If destruction is
triggered, P&Z
Special
Review, meets
the intent of
the chapter,
some sort of
limit on Gross
Floor Area, no
increase to
Calculated
Floor Area.
Allow normal
maintenance
– limit based
on valuation
and time.
If destruction is
triggered, P&Z
Special
Review, meets
the intent of
the chapter.
Bring into
compliance
with
underlying
zoning. Allow
normal
maintenance
– limit based
on valuation
and time.
No Special
Review, bring
into
conformance
with
underlying
zoning. Do not
allow normal
maintenance.
A B C D E F G H
34
4. Exempt Floor Area: Subgrade Basement
Least
Regulation
Medium Regulation Most
Regulation
Allow
replacement of
structure as is
using full floor-
area
exemptions.
Admin review of
non-conformity
meets the intent
of the chapter
puts limit on the
increase of net
livable
If destruction is
triggered, must
be approved
through Special
Review, but no
limitations on
Gross Floor Area
expansion or
exempt floor
area.
If destruction is
triggered, must
be brought into
conformance
with underlying
zoning via
Special Review if
it meets the
intent of the
chapter. Allow
normal
maintenance -
no limit.
If destruction is
triggered, must
meet the intent
of the chapter,
meets all the
review criteria,
and must be
reviewed via
P&Z Special
Review. Allow
normal
maintenance
with a cost
associated on
the amount of
investment.
If destruction is
triggered, must
meet the intent
of the chapter,
puts limit on the
increase of net
livable, and
must be
reviewed via
P&Z Special
Review. Allow
normal
maintenance
with a cost
associated on
the amount of
investment.
If destruction is
triggered, must
meet the intent
of the chapter,
no increase of
net livable and
must be
reviewed via
P&Z Special
Review. Allow
normal
maintenance
with a cost
associated on
the amount of
investment.
No special
review, bring
into
conformance
with underlying
zoning. Do not
allow normal
maintenance.
A B C D E F G H
35
5. Inclusion of ESA Language in Nonconformities/Special
Review
Least
Regulation
Medium Regulation Most
Regulation
Allow
replacement of
structure as is
into the ESA.
Admin review of
non-conformity
meets the intent
of the chapter.
If destruction is
triggered, must
be approved
through Special
Review and the
ESA Review.
If destruction is
triggered, must
be brought into
conformance
with underlying
zoning via
Special Review if
it meets the
intent of the
chapter. Must
also meet
criteria of ESA
Review.
If destruction is
triggered, must
meet the intent
of the chapter,
meets all the
review criteria,
and must be
reviewed via
P&Z Special
Review. Must
also meet
criteria of ESA
Review.
If destruction is
triggered, must
meet the intent
of the chapter,
puts limit on the
increase of net
livable, and
must be
reviewed via
P&Z Special
Review. Must
also meet
criteria of ESA
Review.
If destruction is
triggered, must
meet the intent
of the chapter,
no increase of
net livable, must
be in
conformance
with all
underlying
zoning, and
must be
reviewed via
P&Z Special
Review. Must
also meet
criteria of ESA
Review.
No special
review, bring
into
conformance
with underlying
zoning and all
ESA
requirements.
Do not allow
normal
maintenance.
A B C D E F G H
36
Problem Questions
#1 Unclear Criteria
#2 Updated Outcomes
#3 Hierarchy of Review
37
Question for Review Criteria
What type of physical impact is being made to the site and appearance of the nonconformity
Board verses Administrative Path
Should we create an admin path?
“Structural Alterations” – should we define a new term that could be more restrictive? (i.e., walls destroyed – should that be the threshold)
Massing & Scale
•Consider the original intent of the subgrade Floor Area exemption (regulate the excessive area and bulk)
Overall greater conformance when other nonconformities are on site
Community Benefit
38
Current Review Criteria: Sec. 26.430.040. - Review
standards for special review.
(a)Dimensional requirements. Whenever the dimensional requirements of a proposed
development are subject to special review, the development application shall only be
approved if the following conditions are met.
(1) The mass, height, density, configuration, amount of open space, landscaping and
setbacks of the proposed development are designed in a manner which is compatible
with or enhances the character of surrounding land uses, and is consistent with the
purposes of the underlying zone district, does not increase the net leasable area, the net
livable area of a dwelling unit, the area within a structure in which a nonconformity is
located, or ESA if applicable.
(2) The applicant demonstrates that the proposed development will not have adverse
impacts on surrounding uses, ESAs, or will mitigate those impacts, including but not
limited to the effects of shading, excess traffic, availability of parking in the neighborhood
or blocking of a designated view plane.
39
Policy Questions – Staff Recommendations
1.What outcomes would P&Z like to see in situations where nonconforming structures are taking advantage of subgrade basement floor area, but not being brought into conformance? Staff recommends no increase allowed to exempt subgrade floor area when the structure is over its allowable floor area.
2.Should deck and garage exemptions be treated like subgrade exemptions, or should they be treated differently? Deck and garage exemptions create different situations than the subgrade floor area. Staff recommends the allowance of deck and garage floor area exemptions.
1.How should ESAs be considered? What is the hierarchy of review? Staff believes ESAs should be considered but does not have an option at this time on the hierarchy of review.
2.Should there be an Administrative Path for Special Review in addition to P&Z Special Review for certain situations with more desirable outcomes? Staff recommends P&Z contemplate an administrative review for certain situations but has not contemplated these potential scenarios further.
3.Should the purpose statement within the Nonconformities Chapter change to align with these outcomes? Staff believes the purpose statement, and possibly the intent statement could be updated to better align with updated policy outcomes.40
Current Review Criteria: Sec. 26.430.040. - Review
standards for special review.
(b)Replacement of nonconforming structures. Whenever a structure or portion thereof, which does not conform to the dimensional requirements of the zone district or ESA in which the property is located is proposed to be replaced after Demolition or destruction, the following criteria shall be met:
(1) The proposed development shall comply with the conditions of Section 26.430.040(a) above;
(2) There exist special characteristics unique to the property which differentiate the property from other properties located in the same zone district;
(3) No dimensional variations are increased, and the replacement structure represents the minimum variance that will make possible the reasonable use of the property; and
(4) Literal enforcement of the dimensional provisions of the zone district would cause unnecessary hardship upon the owner by prohibiting reasonable use of the property.
(5) If a structure with nonconforming floor area meets the definition of destruction and the project take the exemptions for subgrade floor area the following must be met:
(1) meets the intent of the chapters…
(2) shall reduce the nonconformity…
41
Potential Review Criteria
1.The proposed redevelopment meets the Intent and Purpose statements of Section
26.312 – Nonconformities; and,
2.“Mitigation Floor Area” as defined in Section 26.104.100 - Definitions, and further
discussed in Section 25.575.020(d) - Measuring Floor Area, is reduced; and,
3.Is improving other non-conforming aspects such as an ESA, height, setbacks, or other
dimensional nonconformities; and,
4.Reduces the non-conforming structure (i.e., the thing coming in for Special Review).
5.If Criteria 1-4 are not met, does it serve a Community Benefit?
42
Questions/Discussion
43
Exhibit B – Best Practices
RESEARCH MEMORANDUM
SUMMARY AND BACKGROUND:
Chapter 26.312- Nonconformities of Aspen’s Municipal regulates uses of land or
structures that were lawfully created before Title 26- Land Use Regulations was adopted
or amended. Nonconformities are intended to lawfully continue, but not to be enlarged
or expanded.
Two sections of review criteria are required when a nonconformity is requested to
continue: Section 26.312.020- Non-conforming structures and Section 26.430.040-
Review standards for special review. Recent Land Use Cases have prompted Staff to
reevaluate these code sections to improve the review criteria for continuing
nonconformities. Policy Resolution #118, Series of 2025 was approved by City Council
in September, 2025 opening Section 26.430.040 of the Land Use Code for amendment.
To examine the best practices of nonconformity regulation, the land use and zoning
codes of other municipalities were researched. These municipalities range in size,
location, and demographic makeup to identify a broad range of nonconformity code.
MUNICIPAL RESEARCH:
The following highlights specific code language from five different municipalities that were
researched for their nonconformity regulations:
Crested Butte, CO
• Cannot be restored within the Stream Margin or if the repairs touch over 50% of
the fair market value.
• Requests for expansions must:
o Be compatible with the neighborhood through size, density, open space,
scale, viewsheds, improved landscaping
o Not negatively impact
Snow storage, snow removal, significant design features, fire
access, or traffic
• Historic landmarks are entirely excluded
• Fences cannot be enlarged or expanded if nonconforming
Telluride, CO
• Nonconformities code be changed or upgraded when the nonconformity is
decreased or the physical appearance of the site is improved.
• Expansion criteria
44
Exhibit B – Best Practices
o A.1. The proposal will improve the building’s appearance, safety, or
efficiency;
o A.2. The proposed alteration, repair or expansion of the building will meet
the setback requirements of Article 3, for the zone district in which it is
located; and
o A.3. The addition or alteration does not constitute a change of use as
defined in Section 4-103.B.
Arlington County, Virginia
• Cannot be remodeled or repairs if structural alterations are made
o Define structural alterations
• Nonconforming floor area cannot be moved unless it meets code
• A nonconformity may be expanded if it is used to meet parking requirements
• SF1 and Duplex properties can expand the second story of a nonconforming
structure encroaching into the setback as long as the second floor does not
encroach more than existing.
• Height or lot area nonconformities can be expanded if the gross floor area in the
expansion does not exceed the existing floor area when the zoning code was
adopted in 1950.
Glenwood Springs, CO
• Repairs cannot exceed 50% of the market value
• Temporary disturbance due to the repair of a nonconformity cannot exceed 15
feet around the perimeter of the structure.
Colorado Springs, CO
• Nonconformities cannot be added to structurally or enlarged
• Repairs cannot exceed 50% of the market value
• Cannot be moved or enlarged
• Gross floor area and height of a new structure may not exceed gross floor area
and height of original nonconforming structure
Pitkin County, CO
• Specific language about Nonconformities within ESA- does not allow TDRs to be
landed
• Nonconformities can be expanded if they do not increase Gross Floor Area, or
exceeds into setbacks
• Separates review criteria into non-significant changes and significant changes
o Significant if it increases GFA, expands into setbacks, expands into ESA
45
Exhibit B – Best Practices
HARDSHIP/VARIANCES:
GLENWOOD SPRINGS
Definition:
Hardship. A condition by which the property in question cannot be put to reasonable use
under existing regulations, subject to a showing of proof under Subsection
070.060.070(a),
Variance: Variance purpose: to provide relief where the use of land is prevented by the
code- not to alleviate inconveniences or financial burdens imposed by landowners:
Hardship/variance review by P&Z criteria:
i. The subject property has an exceptional shape, topography, building
configuration or other exceptional site condition that is not a general
condition throughout the zone district;
ii. The strict application of the Code standards for which a variance is sought
would produce undue hardship;
iii. The applicant did not create the hardship by his/her own actions;
iv. The variance requested does not harm the public and does not impair the
intent or purposes of this Code, goals, and policies, including the specific
regulation for which the variance is sought;
v. The variance request demonstrates exceptional hardship not related to
purposes of convenience or financial burden;
vi. The variance request will not violate building or fire code requirements;
and
vii. The variance is the minimum variance that will afford relief of the subject
standards of the Code.
ARLINGTON COUNTY, VA
Hardship/Variance criteria by BOA. The Board of Zoning Appeals may permit the
continuance of a nonconforming use in a conforming building if it finds that:
1. Said nonconforming use is not detrimental to, and does not
affect adversely, property abutting or across the street, by
reason of the nature of the use, generation of traffic, parking,
lighting, noise and similar factors;
2. No commercial display, lighting, advertising and wholesale or
retail merchandising is carried on in connection with the
conduct of said nonconforming use; and
3. Such discontinuance shall work practical difficulty and undue
hardship upon the owner of said building"
46
Exhibit B – Best Practices
Boulder County
Hardship criteria for HP projects:
a. Estimate of the cost of the alteration proposed under the denied CA application, and
an estimate of any additional costs which would be incurred to comply with the
alterations recommended by HPAB.
b. Estimates of the value of the property in its current state, with the denied alterations,
and with the alterations proposed by HPAB.
c. Information regarding the soundness of the structure or structures, and the feasibility
for rehabilitation which would preserve the character and qualities of the designation.
d. In the case of income-producing properties, the annual gross income from the
property, the operating and maintenance expenses associated with the property,
and the affect of the proposed and HPAB recommended alterations on these figures.
e. Any information concerning the mortgage or other financial obligations on the
property which are affected by the denial of the proposed alterations.
f. The appraised value of the property.
f. Any past listing of the property for sale or lease, the price asked, and any offers
received on that property.
h. Information relating to any nonfinancial hardship resulting from the denial of a CA."
PITKIN COUNTY
Hardship criteria for significant changes: The structure or use is generally consistent
with adopted master plans for the area and adjacent land uses.
o (c) Building Code Standards, Hardships or Improvements to Function and
Appearance
The applicant demonstrates that the purpose of the development is
to:
(1) Meet practical difficulties and hardships that arise from
the existing
restrictions upon repair, alteration or restoration; or
(2) Improve the function and appearance of the structure.
47
Exhibit B – Best Practices
RECOMMENDATIONS AND CONSIDERATIONS:
Overall, communities across the country are using nonconformity code language to
decrease nonconformities and prohibit their expansion. The movement of
nonconformities is largely restricted. Repair and restoration is allowed so long as the
natural destruction does not exceed 50% of the market value of the property. Hardship
criteria or definition is sparsely found or included.
48
City When can
nonconformities remain?
When do
nonconformities
need to come into
compliance?
Can nonconformities
be repaired or altered?
Can nonconformities
be remodeled?
What happens when a
nonconformity is
damaged or
destroyed?
Can nonconformities
be moved?
Does nonconformity
language by land
use?
When does
nonconforming floor
area need to come
into compliance?
What is the review criteria for nonconformity review?Hardship/defininig hardship Other Notes: Waste Website & Links Purpose/community goal
Rochester, New
York
Nonconforming structures or
buildings can remain whenthe
structure is devoted to a
permitted use.
When the structure is
moved, damage exceeds
over 75% the cost of
repair, when the
nonconformity is added to
or increased.
Yes and enlarged as long as
the degreeof the existing
nonconformities is increased
and no additional
nonconformities area
created.
If the nonconformity is
destroyed and the cost of
replacement exceeds 75%
new, the nonconformity
must come into compliance.
A certificate of
nonconformity may be
obtained to completerepairs
or restorations that exceed
75% the cost of new
construction. No- not in whole or part No N/A N/A N/A
Rochester Municipal Code:
https://ecode360.com/8684036?highlight=nonconformi
ng&searchId=43109461530707367#8684042
Police powers, gradual elimination of nonconformities;
somenonconformtiies may exist that support adaptive reuse or the
Comp Plan, restrict investments that would make nonconformities
more permenant in their location
Los Angeles,
California
When the nonconformity
undergoes maintenance, repairs,
or rennovations
When the nonconformity
is expanded, changed, or
modified Yes
Yes- as long as the
nonconformity is not
expaded or modified by the
work.
Yes by zone district- noted
in the exceptions N/A
Lot's of LA specific examples
covered by our RDS section
Intent to provide relief from the zoning code for any development
that was conforming at the time of construction.
Colorado Springs,
Colorado
They may remain when they are
not added to, enlarged or
structurally altered AND the use
is conforming.
They may not be added to,
enlarged, or structurally
altered when the
nonconforming structure
is altered by a
nonconforming use.
Yes- it can be repaired or
maintained; if it is deemed
unsafe, it may be
strengthened or restoreed to
a safe condition as long as the
cost of repairs does not
exceed 50%of the market
value assessment of the
structure and the
nonconformity does not
increase.
Can be rebuild under certain
conditons: permits obtained
within 12 months of
destrution, cannot increase
gross floor area, shall now
comply with zoning
standards excluding height,
does not include attached
stoops, porches, or decks in
the 50% replacement limit. No No
When damage or desruction
does not meet the criteria;
when the cost of
maintenance or repair
exceeds 50% of the
assessor's value of the
structure
May be rebuilt under the following conditions:
1. Any necessary Building Permits are obtained within
twelve (12) months of the date of destruction, unless an
extension has been approved by the Manager due to
extraordinary circumstances;
2. The gross floor area and height of the new structure
shall not exceed the gross floor area and height of the
original nonconforming structure;
3. The new structure shall comply with all development
standards for the particular zone district in which the
property is located, with the exception of height which may
be exceeded to the extent of the previously existing legal
nonconforming development; and
4. Reconstruction of All legal nonconforming buildings
or structures other than a single-family detached or duplex
dwelling shall be subject to the submittal and approval of a
Development Plan in accord with Section 7.5.515
(Development Plan) prior to the issuance of a Building
Permit.
5. Existing attached stoops, porches, and decks on
nonconforming residential structures are considered a part of
the entire structure and are not subject to the fifty (50)
percent replacement value limitation. Attached stoops,
porches, and decks located within the required front, side, or
rear yard setback may be replaced in its original location but
may not be enlarged in size or height.Considers gross floor area in
critiera
https://codelibrary.amlegal.com/codes/coloradosprings
co/latest/coloradosprings_co/0-0-0-55511
Intent to curtail substantial investment in nonconformities to bring
abouttheir eventual elimination to preserve the Code and goals of GS
Glenwood Springs,
Colorado
Repairs and maintenance
including compliance but building
code, Yes- it can be repaired or
maintained; if it is deemed
unsafe, it may be
strengthened or restoreed to
a safe condition as long as the
cost of repairs does not
exceed 50%of the market
value assessment of the
structure and the
nonconformity does not
increas
Definition: Hardship. A condition by which the property in question
cannot be put to reasonable use under existing regulations, subject to
a showing of proof under Subsection 070.060.070(a), Variance:
Variance purpose: to provide relief where the use of land is prevented
by the code- not to alleviate inconveniences or financial burdens
imposed by landowners: Hardship/variance review by P&Z critera:
i.The subject property has an exceptional shape, topography, building
configuration or other exceptional site condition that is not a general
condition throughout the zone district; ii.The strict application of the
Code standards for which a variance is sought would produce undue
hardship; iii.The applicant did not create the hardship by his/her
own actions; iv.The variance requested does not harm the public
and does not impair the intent or purposes of this Code, goals, and
policies, including the specific regulation for which the variance is
sought;v.The variance request demonstrates exceptional hardship not
related to purposes of convenience or financial burden;vi.The
variance request will not violate building or fire code requirements;
and vii.The variance is the minimum variance that will afford relief
of the subject standards of the Code.
Similar to ESA discussion: Repairs
and maintenance within a
waterway or area of special flood
hazard shall comply with Section
070.040.020(d). Temporary
disturbance to make repair or
maintain a nonconforming
structure within or adjacent to the
setback area required by Section
070.040.020(d)(24) shall be limited
to fifteen (15) feet around
perimeter of the structure. The
temporary disturbance area shall
be returned to its original
condition and vegetation or with
other native riparian plant species.
However, vegetation listed on the
Garfield County noxious weed list
shall not be replanted.
Arlington County,
Virginia
when destroyed in fire or natural
cause.
Only if no structural
alterations are made.
No-unless it is moved to
meet code- floor area
cannot be moved unless it
meets code
Total aggregagte floor area
(gross floor area) cannot be
expanded unless it meets
code and does not exceed
the floor area of the
structure when the zoning
code was adopted
If a structure lacks sufficient automobile parking space required in
the code, it can be expanded to add parking space.:
Hardship/Variance critera by BOA: . The Board of Zoning Appeals may
permit the continuance of a
nonconforming use in a conforming building if it finds that:
1. Said nonconforming use is not detrimental to, and does not
affect adversely, property abutting or across the street, by
reason of the nature of the use, generation of traffic, parking,
lighting, noise and similar factors;
2. No commercial display, lighting, advertising and wholesale or
retail merchandising is carried on in connection with the
conduct of said nonconforming use; and
3. Such discontinuance shall work practical difficulty and undue
hardship upon the owner of said building
https://www.arlingtonva.us/files/sharedassets/public/v
/1/building/documents/codes-and-
ordinances/aczo_effective_1.24.2026.pdf
Telluride, Colorado
When the nonconformity
reduces the degree of non-
conformity or improve the
physical appearance of the
structure or site. When non-
purposeful destruction occurs.
When demolished.
when non-conformity is not
touched or changed,or non-
conformity is decreased.
if requested to be enlarged or expanded: 1. The proposal will
improve the building’s appearance, safety, or efficiency;
4-105.A.2. The proposed alteration, repair or expansion of
the building will meet the setback requirements of Article 3,
for the zone district in which it is located; and
4-105.A.3. The addition or alteration does not constitute a
change of use as defined in Section 4-103.B.
https://telluride.municipal.codes/LUC/4-103
To allow nonconformities to conitnue without their reduction or
elimination if no adverse effects or appearance issues are present.
49
Crested Butte
Yes, as long as it has not been
destroyed over 50% of
market value. Cannot be
restored if within stream
margin.
The Board can "OK" increasing an nonconformity for 1. Additions in
the setback 2. additions on nonconforming parcels which are too
small, too large, too narrow, or too wide and 3. Additions to
structures that are too high or too wide and that will add more
sreucture thatis too hihg or too wide. Review critera: (b)The
enlargement must:(1)Be consistent with the objectives and purposes
of this Chapter and the applicable zoning district.(2)Be compatible
with the neighborhood context and size. When determining
compatibility with the neighborhood, the Board shall consider at least
the following:a.Size;b.Density of buildings;c.Amount of open
space;d.Scale;e.Maintenance of view corridors; andf.Provisions of
similar or improved landscaping.(3)Not create significant adverse
impacts on adjacent property owners, including but not limited to the
following:a.Snow storage;b.Snow shedding;c.Snow removal;d.Solar
access;e.Other significant design features; andf.Fire access.(4)Not
create congestion, automotive or pedestrian safety problems or other
traffic hazards.Historic Landmarks are excluded
completely. Fences cannot be
enlarged
https://library.municode.com/co/crested_butte/codes/
municipal_code?nodeId=CH16ZO_ART8COUS_S16-8-
30CRDE Intent tolimit the number and extent of NCs
Boulder
Destruction or natural cause Yes
)Alteration, Repairs or Expansions of Building on Nonstandard Lots:
The city manager will grant a request for a building modification of a
building on a nonstandard lot if the building modification meets the
following standards:(A)The building modification meets the setback
requirements of Section 9-7-1, "Schedule of Form and Bulk
Standards," B.R.C. 1981, for the district in which it is located;(B)The
existing or proposed building coverage does not exceed the area
within the setbacks of the underlying zoning district; and(C)The
building modification will not result in the expansion of a
nonconforming use beyond that amount that is permitted by this
chapter.(5)Variance Required for Nonstandard Lots: A request for a
building modification that increases building coverage for a building
on a nonstandard lot that is less than one-half the minimum lot size
required by the underlying zoning district, or less than one-fourth the
minimum required lot size in RR-1 or RR-2 districts, shall only be
granted pursuant to a variance under Section 9-2-3, "Variances and
Interpretations," B.R.C. 1981.
Boulder County- hardship critera for HP projects: a. Estimate of the
cost of the alteration proposed under the denied CA application, and
an estimate of any
additional costs which would be incurred to comply with the
alterations recommended by HPAB.
b. Estimates of the value of the property in its current state, with the
denied alterations, and with the
alterations proposed by HPAB.
c. Information regarding the soundness of the structure or structures,
and the feasibility for rehabilitation
which would preserve the character and qualities of the designation.
d. In the case of income-producing properties, the annual gross
income from the property, the operating
and maintenance expenses associated with the property, and the
affect of the proposed and HPAB
recommended alterations on these figures.
e. Any information concerning the mortgage or other financial
obligations on the property which are
affected by the denial of the proposed alterations.
f. The appraised value of the property.
g. Any past listing of the property for sale or lease, the price asked,
and any offers received on that property.
h. Information relating to any nonfinancial hardship resulting from
the denial of a CA.Intent to bring nonconformities up to code ASAP
Pitkin County
Under normal maintenance;
exempt in VC VR districts;
structuremay be extended in a
way that does not expand or
decreases the non-conformity.
Yes as long as it is not
increased As long as it is not increased.
(1) A site specific analysis shall be submitted to prove that there is no
area on
the property that can be used for expansion/development outside of
he one
hundred (100) foot setback, without encroachment into the following
area(s)
prohibited from development in Section 7 of the Land Use Code.
(a) Slope;
(b) Floodplain
(c) Geologic Hazard
(d) Severe Wildfire
(e) Wildlife Habitat
(2) In the event that no developable area exists outside of the 100
foot
riparian/wetland setback, expansion of a structure shall be subject to
compliance with the following criteria:
(a) The Environmental Health/Natural Resources Department finds
that the related septic system or other wastewater treatment system
may be adequately accommodated without detriment to the
wetland/riparian stream habitat:
(b) No Transferable Development Rights (TDRs) shall be used on site
for any purpose;
Hardship critera for signficant changes: The structure or use is
generally consistent with adopted master plans for the area and
adjacent land uses.
(c) Building Code Standards, Hardships or Improvements to Function
and
Appearance
The applicant demonstrates that the purpose of the development is
to:
(1) Meet practical difficulties and hardships that arise from the
existing
restrictions upon repair, alteration or restoration; or
(2) Improve the function and appearance of the structure.
(d) Development Exactions and Impact Fees
Purpose statement is for the
regulation of the continuation of
non-conformities + to permit them
to continue; NC can be remodeled
as long as the NC does not enlarge
of the gross floor area, exceeds
into setbacks (except in ESA areas);
Includes code for
Restoration/expansion for
signficatn changes and non-
significant changes
50
Attachment C
Example Models
All of the following examples are Land Use Cases presented in front of the Planning and
Zoning Commission with modified calculations and scope to model the proposed code
change options.
Example A – Nonconforming Floor Area and ESA Projection
Summary: The property is a legally nonconforming single-family residence over in
allowable floor area. A large portion of the structure projects into the Hallam Lake Bluff
Environmentally Sensitive Area (ESA). The applicant requests to remodel the existing
nonconforming structure to remove portions of the ESA projection and add a subgrade
basement using exempted floor area. The Allowable Floor Area is reduced but not brought
into full conformance with underlying zoning. The Gross Floor Area is significantly
increased through subgrade exemptions. The deck has up to 700 square feet of exempted
space.
1. Actual Outcome: Staff provided a recommendation of denial due to the project not
meeting Special Review Criteria. P&Z approved the project with no increases to the
ESA projection.
Floor Area from Zone
District
Total GFA
Calculated FA decreases
Calculated FA increases
Nonconforming ESA
Projection reduced
Existing Floor
Area Outcome Floor
Area
Allowable Floor Area 4500 4500
Gross Floor Area 6000 12000
Calculated Floor Area 5200 5190
Gross Subgrade Area 1000 6000
Gross Deck Area 400 600
ESA Projection Area 500 200
51
Attachment C
2. Option G Outcome – Most Restrictive: Under Menu Option G, all nonconforming
aspects of the property (calculated floor area and ESA projection) would need to be
brought into conformance with underlying zoning. The projection into the Hallam
Lake Bluff ESA is removed, and the Calculated Floor Area is reduced to align with
the Zone District. The property can now use full subgrade and deck area exemptions
without contributing to Calculated Floor Area.
Floor Area brought into
conformance with Zone District
Subgrade exemptions
Deck exemptions
Nonconforming ESA
projection removed
Allowable Floor Area 4500 4500
Gross Floor Area 6000 11100
Calculated Floor Area 5200 4500
Gross Subgrade Area 1000 6000
Gross Deck Area 400 600
ESA Projection Area 500 0
52
Attachment C
Example B – Nonconforming Floor Area and Deck area over allowed 15% Exemption
Summary: The property is legally nonconforming in allowable floor area and has a large
portion of deck that is countable floor area because they are over the allowed 15% deck
exemption. The applicant seeks continuation of a nonconformity to rearrange and
reconfigure floor area on site. The applicant proposes as part of this work: to convert 275
sq. ft. of existing unfinished attic into finished accessible floor area, change existing
crawlspace into accessible basement floor area, add a 2-level garage car lift in the garage
by dropping the slab in the existing garage, remove and reconfigure deck area on site, and
install trees and landscaping. Since the applicant requests redeveloping and reconfiguring
nonconforming floor area the proposal triggers Special Review by the Planning and Zoning
Commission.
1. Actual Outcome/Current Process: Staff provided a recommendation of denial
due to not meeting the Special Review for Nonconforming structures criterion 4
– Hardships. P&Z approved the project 5-0with a reduction of approximately
1,700 sq. ft. of floor area from the site but not full conformance with the Land
Use Code.
2. Staff provided a recommendation of denial due to not meeting the Special
Review for Nonconforming structures criterion 4 - Hardships. P&Z approved the
project 5-0 with a reduction of approximately 1,700 sq. ft. of floor area from the
site but not full conformance with the land use code
Existing Floor
Area
Outcome Floor
Area
Allowable Floor Area 5000 5500
Gross Floor Area 7000 8202
Calculated Floor Area 7700 5500
Gross Subgrade Area 2500 3400
Gross Deck Area 2800 1200
15% deck Exemption 700 700
Deck area counted
towards calculated FA 2100 500
Floor Area from Zone District
Total GFA
Calculated FA decreases
Gross Subgrade increases
Gross deck decreases
Deck area counted towards
calculated floor area decreases
53
Attachment C
1. Option G Outcome – Most Restrictive: Under Menu Option G, all nonconforming
aspects of the property (calculated floor area and deck area counted towards
calculated floor area) would need to be brought into conformance with underlying
zoning. The property can now use full subgrade and deck area exemptions without
contributing to Calculated Floor Area.
Existing
Floor Area
Outcome Floor
Area
Allowable Floor Area 5000 5000
Gross Floor Area 7000 7000
Floor Area 7700 5000
Gross Subgrade Area 2500 2500
Gross Deck Area 2800 700
15% deck Exemption 700 700
Deck area counted
towards calculated FA 2100 0
Floor Area from Zone District
Total GFA
Calculated FA decreases to
allowed floor area
Subgrade exemptions
Gross deck decreases to
allowable 15% exemption
54
Attachment C
Example C – Nonconforming Floor Area and Addition of Garage
Summary: The property is legally nonconforming in allowable floor area. The applicant
proposed adding additional subgrade space, reconfiguring deck/covered patio area on
site, and development as a garage. The property was not over the allowed 15% deck
exemption. However, some covered patio areas counted towards the floor area on site.
The garage is an allowed exemption so did not count for any calculated floor area on the
site. The applicant seeks continuation of a nonconformity to rearrange and reconfigure
floor area on site. Since the applicant requests redeveloping and reconfiguring
nonconforming floor area the proposal triggers Special Review by the Planning and Zoning
Commission.
1. Actual Outcome: Staff provided a recommendation of denial due to not meeting the
Special Review for Nonconforming structures criterion 4 - Hardships and criterion 2
- Special Characteristics that differentiate the property from other properties in the
same zone district. P&Z approved the project 4-3 with a reduction of approximately
2 sq. ft. of floor area from the site but not full conformance with the land use code
Existing Floor
Area
Outcome Floor
Area
Allowable Floor Area 3605.7 4142.58
Gross Floor Area 6166 7443
Calculated Floor Area 4144 4142
Gross Subgrade Area 1722 2505
2. Option G Outcome – Most Restrictive: Under Menu Option G, all nonconforming
aspects of the property would need to be brought into conformance with underlying
zoning. The property can now use full subgrade and deck area exemptions.
Existing Floor
Area
Outcome Floor
Area
Allowable Floor Area 3605.7 3605.7
Gross Floor Area 6166 6166
Calculated Floor Area 3605.7 3605.7
Gross Subgrade Area 1722 1722
55