Planning Commission recommends denial of variance to legalize an additional dwelling at 2865 Spats Road

The El Paso County Planning Commission on Aug. 7 recommended denial of a variance of use that would allow an additional dwelling unit on a 5.15‑acre RR‑5 parcel at 2865 Spats Road.

The applicants, Jason and Emily Schott, sought a variance of use after a 2019 principal residence was built and a 2022 permit was issued for a 1,920‑square‑foot detached garage that staff said was described at permit time as unheated storage. According to code‑enforcement records referenced by staff, an online advertisement and other evidence indicated an upper floor of the detached structure had been converted to habitable space and that the unit was being rented. Staff (Lacey Dean, Planning and Community Development) noted that under the Land Development Code an “accessory living quarters” granted administrative relief is limited in size and that the space as built and used exceeds that limit; the additional floor therefore would be an “additional dwelling,” which is not an allowed use in RR‑5 without a variance.

Applicant representatives from Vertex Consulting and the property owner, Jason Schott, told commissioners they sought to legalize the space and said the owner has ceased renting the unit while the request is processed. Schott told the commission, “I failed to be in compliance, and I want to make that right now.” Vertex noted the Tri‑Lakes key area in the master plan promotes a mix of housing options and pointed to county precedent where similar variance requests have been granted in prior years.

Staff and engineering reviewers said the site does not intersect a regulatory floodplain and that drainage and transportation impacts were expected to be negligible; Tri‑Lakes Fire had no objection in the referral. Staff also reported the owner would need to re‑permit the well to serve two dwelling units and that the existing septic system lacks adequate capacity for a second permanently occupied unit without upgrades. The applicant’s team said a secondary septic system and well re‑permit are feasible if the variance were approved.

Public opposition included written letters and testimony by nearby residents. Neighbor Michael Buttonweiser, who lives one lot to the northeast, said he had observed short‑term rentals and large gatherings at the property, raised concerns about traffic and noise on Spats Road, and questioned the appropriateness of legalizing a rented unit in a rural zoning district.

In discussion commissioners focused on whether the applicants had demonstrated a peculiar and exceptional practical difficulty or undue hardship as required by the code. Several commissioners said the conversion and rental activity produced a self‑created condition and expressed concern that approving a variance after the fact could encourage rule‑breaking. Commissioner Trowbridge moved to recommend denial; Commissioner Whitney seconded. The roll call resulted in votes in favor of denial from Mraize, Fuller, Trowbridge, Whitney and Byers; Commissioners Jack and Chair Jay Carlson voted no. The motion to recommend denial passed 5–2 and will be forwarded to the Board of County Commissioners for consideration.

Because the variance was only for use, not for infrastructure, Staff advised that if the BOCC or applicant later allow the use, the owner must obtain required septic and well permitting and meet any building‑code or public‑health requirements prior to re‑establishing rental occupancy.