El Paso County Planning Commission, May 2 – Variance for Black Forest property would allow short-term rental to continue

By Helen Walklett

At the El Paso County Planning Commission meeting on May 2, the commissioners heard a request from owners Drew and Tarah MacAlmon for approval of a variance of use to allow an ancillary building to continue to be used as an occasional short-term rental. The 4.78-acre property is located on South Holmes Road, south of its intersection with Burgess Road, and is zoned RR-5 (residential rural).

The MacAlmons received approval in 2018 for an ancillary building to provide a home office and additional living space. It passed all inspections in 2019, and the bedrooms in the basement of the building have been rented out on a short-term basis since that time with the owners not knowing this was not an allowed use.

In 2022 an anonymous complaint about the rental was made to the county’s code enforcement officers, and a violation notice followed. The MacAlmons then met with county staff and were advised not to submit a variance of use application at that time, which would bring the rental activity into compliance, because the county was exploring code amendments that would allow accessory dwelling units.

Meggan Heringtion, executive director, Planning and Community Development, said, “I gave them the ability to hold off. We received the complaint about what we deemed a second dwelling. However, at the time we had been instructed to work on potential code revisions to allow accessory dwelling units and since we were working on that, I did say hold off.” She explained that when the amendment was put on hold waiting for the state Legislature, the applicants were asked to submit a variance of use application. This was done in August 2023.

Ashlyn Mathy, planner II, Planning and Community Development Department, explained that because the 2018 site plan showed no kitchen, the applicants were not required to sign an affidavit acknowledging they could not rent or lease the structure as a separate living unit. Renting the space was never discussed. She said 15 neighbors had been notified and no opposition had been received but a common theme from neighbors was the suggestion that the variance be tied to the owners rather than the property so that it would not be automatically transferred were the property to be sold.

The applicants represented themselves at the hearing. Speaking about the rental activity, Drew MacAlmon said, “We feel this is a way we can recoup some of the cost of rising property taxes as well as the investment we made into the structure.” He said there was no mention of short-term rental in county’s land development code in 2018.

Tarah MacAlmon told the commissioners their primary intent had always been to have a place to work from home and their focus was on completing the office space first. She said that over time they realized there might be a way for the other space in the building to be profitable.

Commissioner Tim Trowbridge commented that the staff report stated a kitchen is present. Drew MacAlmon responded that they had installed an oven without realizing it would be such an issue but had removed it when told it was not allowed. Trowbridge commented, “I’m troubled by what I see as a backdoor attempt at getting this approved.” Commissioner Becky Fuller said, “I would feel better if you said ‘We snook it in and got nailed” because that’s what I feel like happened.’

Drew MacAlmon said, “In our eyes, we went through the process there of inspections, plans, engineering, building that structure and that was all approved.” Tarah MacAlmon commented, “Our willingness and desire is to be fully in compliance and be able to rent this space out that we indeed have invested in.”

Mathy said there had been a unique situation with this project and that there had been some confusion with the process. Justin Kilgore, planning manager, Planning and Community Development, told the commissioners, “This application is the remedy to fix the miscommunications or perceived issues with the project.”

Fuller stated, “To me it’s all about the review criteria. I think the applicant has not shown this in their application. I don’t think that what we have been presented here today meets the appropriate criteria.” She encouraged them to work with department staff and to focus on the criteria to prepare for the El Paso Board of County Commissioners’ (BOCC) land use hearing.

Commissioner Bryce Schuettpelz said, “One of the criteria about the financial hardship is a hard argument to make because if you truly built it to be an office, you weren’t planning on income coming in.”

Trowbridge said, “Short-term rentals are a commercial enterprise. It’s not a guest house and it’s not compatible.”

Chair Tom Bailey stated, “I am in favor of this because I believe the variance is the appropriate vehicle for addressing a shortcoming in our current code and in our current process.”

A motion to approve without further conditions was amended by a vote of 6-2 to include a condition that the variance only apply while the MacAlmons own the property, becoming void upon its sale. The amended motion to recommend approval then succeeded by a vote of 5-3. The nay votes were Fuller, Trowbridge, and Commissioner Christopher Whitney.

Whitney advised the applicants to really look at the approval criteria ahead of the BOCC hearing. To the undue hardship criterium, he suggested the hardship may be that the process is confusing. Speaking to his nay vote, Trowbridge said, “I don’t think this is compatible with the neighborhood. I don’t think short-term rentals belong here.”

The application is now scheduled to be heard at the BOCC land use meeting on June 13.

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The El Paso County Planning Commission normally meets the first and (as required) the third Thursday of each month at the Regional Development Center, 2880 International Circle, Colo. Springs. Meetings are live-streamed on the El Paso County News and Information Channel at https://www.elpasoco.com/news-information-channel. Information is available at 719-520-6300 and https://planningdevelopment.elpasoco.com/planning-community-development/2024-hearings-schedule/.

Helen Walklett can be reached at helenwalklett@ocn.me.

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