Chapter 2 - § 2.7 • NONCONFORMING USES, STRUCTURES, AND LOTS

• Jurisdiction: Colorado

§ 2.7 • NONCONFORMING USES, STRUCTURES, AND LOTS

• C.R.S. § 30-28-120
• C.R.S. § 38-1-101

§ 2.7.1—Nonconforming Uses

A nonconforming use is a use that was lawful prior to the adoption of a zoning regulation prohibiting the use, but that does not comply with the requirements of that regulation. Taking preliminary steps towards establishing a use that is later made nonconforming is not the same as having a pre-existing nonconforming use. In order to be treated as a nonconforming use, the use must actually exist prior to the zoning change that made it nonconforming.²²¹ In addition, the use must have been actually permitted under the prior version of the zoning code.²²² Owners of property with nonconforming uses are often given the right to continue the prohibited use as a "legal nonconforming use" in order to allow them time to recoup investments in the property made when the use was lawful. This concept is sometimes referred to informally as "grandfathering." Requiring immediate compliance with a regulation that suddenly prohibits a previously legal use is often considered an unreasonable exercise of a local government's zoning authority because the property owner loses not only a future use of the property but also the value of any previous investment in improvements to the property for legal purposes.²²³

An owner's right to continue a nonconforming use is not absolute, however, and zoning powers are frequently used to restrict such uses and to cause their removal over time.²²⁴ Accordingly, the owner usually has no absolute right to indefinite continuation of a nonconforming use.²²⁵ The Colorado Supreme Court has stated that zoning provisions allowing nonconforming uses should be strictly construed and zoning provisions restricting nonconforming uses should be liberally construed. The court also noted that nonconforming uses are disfavored and should be eliminated as quickly as possible because they reduce the effectiveness of zoning ordinances, depress property values, and contribute to the growth of urban blight.²²⁶

The most common restrictions on nonconforming uses are: (1) a ban on enlargement or expansion of the nonconforming use; (2) a ban on a change in the character of the nonconforming use to cover new or additional nonconforming uses;²²⁷ (3) a ban on replacement of the structure containing the nonconforming use if it is destroyed beyond a threshold value (normally 50 to 80 percent of the assessed or fair market value); and (4) a ban on restarting the nonconforming use or any other nonconforming use after the use has become inactive for a stated period of time. Some home rule municipalities provide that nonconforming uses that are enlarged or expanded without permission may be terminated, and the Colorado Court of Appeals has upheld such a provision.²²⁸

If an owner loses the value of his or her investment for some reason not associated with the zoning ordinance, the justification for allowing the continuance of a nonconforming use disappears because the owner no longer has the opportunity to recoup any investment in the nonconforming use.²²⁹ For example, if the building containing the nonconforming use is destroyed by fire, the owner's investment in that particular building is gone, and the owner stands in the same relation to the zoning regulation as anyone else.²³⁰ The same reasoning supports prohibition of the expansion or enlargement of a nonconforming use.²³¹ The fact that the owner has an investment in a building housing a newly prohibited use does not mean that the municipality or county must allow continued investment to prolong or expand that use, and jurisdictions generally prohibit such investment. Similarly, abandonment or discontinuance of the nonconforming use by the owner also constitutes grounds for termination of the nonconforming use. The Colorado Supreme Court has ruled that a nonconforming use may be terminated after a reasonable period of time, as specified by ordinance, during which the use has been discontinued, regardless of whether the owner intends to abandon the use.²³²

The right to a nonconforming use runs with the land. Buying, selling, or leasing the property does...