Alvarado City Zoning Code
ARTICLE VI
NONCONFORMING USES, LOTS AND STRUCTURES
§ 42-80 Purpose and intent.
Within the districts established by this chapter, there may exist buildings or uses of land and buildings (nonconforming uses) which were lawful before this chapter was passed or amended, but which would be prohibited, regulated or restricted under the terms of this chapter or future amendments. Such nonconforming uses may be continued although they do not conform with the provisions of this chapter, subject to the limitations and conditions set forth in this section. However, such nonconforming uses are declared by this chapter to be incompatible with permitted uses in the districts involved. With due regard for the property rights of the persons affected when considered in light of the public welfare, the character of the area surrounding the nonconforming use and the conservation and preservation of surrounding properties and their values, it is the declared purpose of this chapter that nonconforming uses be eliminated and be required to conform to the regulations prescribed in this chapter.
(Ordinance 2015-005, sec. 1, adopted 4/20/2015)
§ 42-81 Continuation of use.
(a)
Nonconforming uses or structures.
Any use or structure that existed as a nonconforming or previously conforming use or structure under applicable zoning regulations prior to adoption of this chapter shall be permitted to continue as a nonconforming use or structure, subject to the provisions of this section.
(b)
Exemptions to nonconforming regulations.
Any use that does not conform to the provisions of this chapter that require the use to have a specific use permit, but which existed as a conforming use without a specific use permit under applicable zoning regulations prior to the adoption of this chapter, shall be permitted to continue as a nonconforming use. In the event such a use is replaced by or changed to a use conforming to the provisions of this chapter, the nonconforming use shall be considered void and only uses conforming to this chapter will be permitted thereafter. The burden of proof that the exemption provided by this section exists shall rest on the property owner.
(c)
Illegal use or structures.
By adoption of this chapter, no presently illegal use or structure shall be deemed to have been legalized unless such use or structure falls within a district where the actual use and structure conform to the provisions of this chapter.
(d)
Building on nonconforming lots of record.
In any zoning district, buildings may be erected on any single lot of record, provided there is access to such buildings from a street and the lot is in the same ownership as recorded on the effective date of the ordinance from which this chapter is derived. This provision shall apply even though the lot fails to meet the minimum requirements for area, width, or depth for the district in which it is located; however, all other requirements shall still apply. All buildings constructed on nonconforming lots of record shall meet all development regulations in the district unless proper variances are granted by the board of adjustment. No building shall be constructed on multiple lots. Whenever construction is desired on multiple lots, the property owner shall replat the property into a single lot.
(e)
Nonconforming buildings.
Repairs and alterations may be made to a nonconforming building, provided that no structural alterations shall be made except those required by law or ordinance, unless the building is brought into conformity with the provisions of this chapter.
(f)
Nonconforming use of buildings.
A nonconforming use of a building shall not be increased or enlarged and no occupancy of additional buildings or land by a nonconforming use shall be permitted except that a nonconforming use of a building may be extended throughout any parts of the building which were manifestly arranged or designed for such use and which were owned or leased by the owner of the nonconforming use on the effective date of the ordinance from which this chapter is derived, provided no structural alterations, except those required by law or ordinance, are made, and provided further that no additional dwelling units shall be added where the nonconforming use results from there being more dwelling units on the lot than is permissible in the district in which the building is located. The board of adjustment shall have the authority to permit an extension of a building which is nonconforming as to uses not to exceed 25 percent of the existing floor area, subject to the development regulations applicable in the zoning district.
(g)
Nonconforming use of land.
Unless otherwise provided in this section, a nonconforming use of land may not be expanded, extended or moved in whole or in part, beyond the area of land actually being occupied by the use at the time it becomes nonconforming, except to provide off-street loading or off-street parking space facilities. Notwithstanding the above, the board of adjustment may permit an expansion of a nonconforming use of land on a lot of record not to exceed 25 percent of the existing area of the land actually being occupied by the nonconforming use, subject to the development regulations applicable in the zoning district.
(Ordinance 2015-005, sec. 1, adopted 4/20/2015)
§ 42-82 Discontinuance or abandonment.
(a)
Defined.
A nonconforming use, when discontinued or abandoned, shall not be resumed and any further use shall be in conformity with the provisions of this chapter. Discontinuance or abandonment shall be defined as follows:
(1)
When land used for a nonconforming use shall cease to be used in a bona fide manner for the nonconforming use for six consecutive calendar months.
(2)
When a building designed or arranged for a nonconforming use shall cease to be used in a bona fide manner as a nonconforming use for a period of six consecutive calendar months.
(3)
When a building designed or arranged for a conforming use shall cease to be used in a bona fide manner as a nonconforming use for a period of six consecutive calendar months.
(4)
When land or a building used only on a seasonal basis is not used in a bona fide manner as a nonconforming use during such season.
(b)
Presumption.
There shall be a rebuttable presumption that the property owner intended to discontinue or abandon the nonconforming use if such use ceases for the above time periods.
(c)
Deemed to have occurred.
Discontinuance or abandonment shall be conclusively deemed to have occurred irrespective of the intent of the property owner if the nonconforming use was dilapidated, substandard, or was not maintained in a suitable condition for occupancy during the above time periods.
(Ordinance 2015-005, sec. 1, adopted 4/20/2015)
§ 42-83 Destruction of nonconforming use.
(a)
Destruction.
If a nonconforming building is destroyed by fire, the elements, or otherwise, it may not be reconstructed or rebuilt except to conform with the provisions of this chapter unless the destruction amount is less than 50 percent of its fair market value at the time of destruction. If a conforming building occupied by a nonconforming use is destroyed by fire, the elements, or otherwise, it may be reconstructed in conformity with the provisions of this chapter; provided, however, if the destruction amount is more than 50 percent of its fair market value at the time of destruction, the nonconforming use may not continue in the building.
(b)
Destruction greater than 50 percent.
If the destruction is greater than 50 percent and less than total, the board of adjustment may, after a public hearing, authorize repair, taking into consideration the property owner's circumstances and the effect on surrounding properties.
(c)
Destruction less than 50 percent.
Upon submission by the owner of sufficient evidence to prove that the destruction of a nonconforming building amounts to less than 50 percent of the fair market value of the entire nonconforming use and that the destroyed building or structure constituted an integral part of the nonconforming use without which the nonconforming use cannot be profitably operated, the board of adjustment may permit the reconstruction of such destroyed building or buildings under conditions which reasonably allow the owner to recoup his original investment.
(d)
Single-family residences.
Notwithstanding anything herein to the contrary, a single-family residence which is destroyed shall be permitted to be reconstructed without board of adjustment approval regardless of the extent of destruction provided that the construction complies with all current building codes and is commenced within six months of the date of destruction. The failure of the owner to start such reconstruction within six months shall forfeit the owner's right to restore or reconstruct the dwelling except in conformance with this chapter.
(e)
Time limit for reconstruction.
If the owner of a nonconforming use fails to begin reconstruction of the destroyed building (when permitted to do so by the terms of this chapter) within six months of the date of destruction or approval by the board of adjustment, the nonconforming building or use shall be deemed to be discontinued or abandoned as provided in section 42-82.
(Ordinance 2015-005, sec. 1, adopted 4/20/2015)
§ 42-84 Expedited compliance.
It is the policy of the city to allow the continuance of nonconforming uses but not to encourage their survival. It is recognized that a nonconforming use shall be permitted to continue for the life of the investment made by the original builder or operator. No improvements or structural alterations that extend the life or expand the degree of noncompliance shall be permitted as a general rule. Under certain conditions the continued existence of a nonconforming use may create such a degree of incompatibility with surrounding land uses and with the intent of the city's short range, medium range and long range comprehensive planning that a requirement for expedited compliance with the zoning district regulations is necessary in the public interest. A decision of this nature may affect vested property rights of the property owner and, therefore, the following procedural requirements shall apply.
(1)
Determination of need for expedited compliance.
Any city officer, board, commission or the city council may request that the board of adjustment establish a zoning compliance date for a nonconforming use. Upon receiving such a request, the board shall determine whether there is a public necessity for expedited compliance with the zoning regulations. The board will schedule a public hearing in conformance with the notice and procedural requirements established by this chapter and the rules of the board. The following factors must be considered by the board in determining the public necessity for expedited compliance:
(2)
Hearing requirements.
a.
Notice of the public hearing shall be given to the owner of the affected property and all surrounding property owners within 200 feet of the subject property as prescribed for other cases heard by the board of adjustment. All interested citizens, individuals and organizations will be given the opportunity to appear before the board and present evidence that they deem relevant and appropriate for the board to consider in determining the need for the establishment of a compliance date for the specific nonconforming use.
b.
At the conclusion of the public hearing the board shall make a finding as to whether or not there is a need for expedited compliance with the zoning ordinance and shall determine whether or not it is appropriate to set a date certain for the use or activity to come into compliance with the current requirements of the ordinance. If the board determines that there is no need for expedited compliance, it shall provide written notice to the party who requested the hearing that the board has found that expedited compliance is not necessary at the present time. No further action shall be taken by the board and the nonconforming use shall retain its existing status. Any party who disagrees with this determination by the board shall have the right to appeal such decision to state district court in the same manner as any other decision of the board may be presented for judicial review. Review is by writ of certiorari and shall be presented in the manner set forth in V.T.C.A., Local Government Code, section 211.011.
(3)
Expedited compliance—Procedure for determining amortization value.
a.
If the board determines that expedited compliance is necessary and appropriate in the public interest, it shall commence the proceedings necessary to establish the value of the nonconforming use and a reasonable amortization period for that use. The board shall initially establish a time for hearing evidence on the various value and income issues necessary to comply with the amortization process. The board shall give the various parties to an amortization case sufficient time to conduct discovery and to prepare evidence of value, depreciation and income. To the extent deemed reasonable, the board shall establish a hearing date within 60 days following the determination of a need for expedited compliance. If a party believes more time is necessary to prepare for the hearing, a request for continuance of the hearing may be made to the chairman of the board who shall have the authority to grant a reasonable extension of time.
b.
The parties may exchange written discovery requests and take, as appropriate, depositions of potential witnesses. Discovery disputes will be presented to the chairman of the board for resolution. The hearing to determine value and income matters relating to amortization shall be subject to the same notice requirements as those established for the expedited compliance hearing. The purpose of the second hearing shall be to determine the value of the interest taken, if any, and whether the owner has had a reasonable opportunity to recoup that value; and a reasonable compliance date. The value is determined in the following manner:
1.
The board first determines the date upon which the nonconforming use came into existence and/or operation.
2.
The purpose of amortization value determination is to fully recognize the investment the owner made at the time that the use was legally permitted. A determination is made, based on the presentment of evidence, of the initial investment made by the original owner in the construction and establishment of the nonconforming use. Land value is not a factor as the property owner or his successor will retain ownership and the right to use the land for a legal use. The board should consider any evidence establishing the amount of the investment made in the establishment of the nonconforming use prior to the point in time at which it became nonconforming. Any improvement, addition, expansion or change made after the date of its nonconformity shall not be considered by the board, as it was made by the owner with knowledge of the limited life expectancy and use of the property. Initial investment value shall not be given to items that may be transported to a new site. Compensation for these items is addressed as a relocation cost below.
3.
The board shall then determine the income that the property has produced annually since the nonconforming use commenced. The board, at its discretion, may make findings as to the annual operating cost of the nonconforming use to determine income over purely operating revenue. The board shall prepare a written finding stating clearly for each year that the nonconforming use has been in existence, the annual income it has produced and shall further make a finding of its current annual income based upon the income it produced at the close of the most recent calendar year or fiscal year for which it has been in operation. If due to the age of the nonconforming use, changes of ownership, or the loss or destruction of records it is not possible to prepare an income finding for each year of the nonconforming use the board will make a finding for each year that can be documented and will note why the missing years have not been addressed. The board shall use that annual income as the current and future income projection of the nonconforming use for determining amortization of any remaining investment value. Any party to these proceedings shall have the right to offer evidence as to why that projection is no longer realistic based upon evidence of economic change.
4.
The board shall determine whether the original investment in the nonconforming use is subject to depreciation due to physical and/or market conditions. The board shall look at standard industry practices in determining a reasonable depreciation schedule.
5.
The board may consider any other factors or evidence that shows that the owner has had a reasonable opportunity to recoup his investment in the nonconforming use.
6.
The board shall then take the original investment value determined in step number 2 of this process and then subtract from that number the income of the nonconforming use as determined in step 3 and any depreciation of the nonconforming use as determined in step 4. If the subtraction of the income of the nonconforming use from the original investment value less depreciation leaves a positive figure of value remaining in the tract, the board shall make a determination that there is unamortized value in the nonconforming use that must be addressed by the city prior to expedited compliance. If the subtraction of the income streams from the initial investment value produces a negative number, then no unamortized value will remain and the board shall establish a date for expedited compliance without the need to address unamortized value.
7.
All findings of the board pertaining to the value of the investment in the nonconforming use and the rate of return derived by the owner must be reasonable and in accordance with accepted industry practices for that type of nonconforming use. Any party may offer evidence to the board in order to substantiate a reasonable value of the initial investment and/or a reasonable rate of return for such nonconforming use.
8.
The board shall next determine whether the property owner will incur any costs of closing down or relocating the nonconforming use. Closure or relocation cost shall include only the reasonable and necessary expenses to transport items and material from the site to a new location. Relocation cost does not include the cost of acquiring alternate land as the property owner is retaining the land at the existing site to convert to a conforming use. The cost of relocation does not include the cost of removing permanent improvements such as buildings, parking areas, or public works facilities that will remain on the original site for use by the owner in a conforming business activity.
c.
Board findings on unamortized value and the cost of relocation. If the board makes a determination that unamortized value remains in the nonconforming use by determining that the original investment value minus depreciation exceeds the amount of income derived from the nonconforming use during its operation through the date of the amortization hearing, the board shall make the following findings as a matter of record:
1.
The dollar value of the unamortized interest remaining in the nonconforming use (original investment value, minus depreciation and minus income earned during historic operation of the nonconforming use).
2.
The dollar income the nonconforming use produced during its last full calendar year of operation prior to the date of the hearing
3.
The dollar cost of relocating business assets or inventory.
4.
Other factors that show whether the owner has had a reasonable opportunity to recoup his investment in the nonconforming use.
d.
Based upon the above factors, the board determines a calendar date upon which amortization shall be deemed complete. The calendar date determined herein shall be the date upon which the board determines is a reasonable period of time for the owner to have fully amortized the original investment value of the nonconforming use together with the closure/relocation costs that are properly chargeable to the nonconforming use.
e.
The board shall make these findings a matter of record in the minutes of the board meeting in which such final determination was reached. The date upon which final amortization occurs shall be the date upon which the nonconforming use shall cease to operate in a nonconforming status.
f.
Under no circumstance shall a nonconforming use be given less than 90 days to cease operation irrespective of the date determinations made above. The 90-day minimum is to provide the nonconforming use business with the opportunity to give its customers, suppliers and vendors proper notice and to permit an orderly closure and transfer of business operations.
g.
The board of adjustment shall cause its findings to be transmitted to the city council including whether any unamortized value remains in the nonconforming use identified for expedited compliance. The city council in its sole discretion shall have the right to determine if the city should appropriate funds to purchase the remaining unamortized value of the nonconforming use, thereby instituting immediate closure rather than waiting for the expiration of the time necessary for the automatic amortization of remaining value.
(Ordinance 2015-005, sec. 1, adopted 4/20/2015)
§ 42-85 Additional limitations and provisions regarding nonconforming uses.
(a)
Change to conforming.
A nonconforming use or building, if changed to a conforming use or building, may not be changed back to a nonconforming use or building.
(b)
Accessory uses or structures.
No nonconforming accessory use or structure shall continue after the principal use or structure shall have ceased or terminated unless the accessory use or structure shall thereafter conform to the provisions of the zoning district in which it is located.
(c)
Vested rights.
Nothing contained in this chapter shall require any change in the plans, construction or designated use of a building or land development project for which a building permit was lawfully issued no more than six months prior to the adoption or amendment or this chapter, provided that such construction shall have been started at the time such use became nonconforming and shall have been diligently prosecuted to completion.
(d)
Future nonconformities.
The foregoing provisions of this article shall also apply to uses made nonconforming by subsequent amendments to the zoning regulations or by annexation into the city limits.
(e)
Special exceptions.
Any use which is approved as a specific use permit by the city council or as a special exception use by the board of adjustment shall, upon its establishment, be considered a conforming use in that district, provided that this regulation shall not be interpreted as to waive any conditions placed on the specific use or special exception use.
(f)
Replacement of manufactured home.
Notwithstanding anything in this article to the contrary, a nonconforming manufactured home may be exchanged or replaced by another manufactured home, provided the replacement manufactured home is owner-occupied.
(Ordinance 2015-005, sec. 1, adopted 4/20/2015)
§ 42-86 Waiver.
The board shall have the power to approve a waiver of any required yard area or setback requirement when such a waiver is necessary due to a surveying or construction error in the placement of the original foundation or site improvement.
(Ordinance 2014-010, sec. 1, adopted 4/21/2014)