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Azle City Zoning Code

SECTION 35

NONCONFORMING USES AND STRUCTURES

§ 35.1 PURPOSE AND INTENT.

Within the zoning districts established by this ordinance, as amended, there may exist structures or uses of land and structures which were lawful before this ordinance was passed or amended, but which would be prohibited, regulated, or restricted under the terms of this ordinance or future amendments. Such nonconforming uses are declared by this ordinance to be incompatible with permitted uses in the various zoning districts. 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 ordinance that nonconforming uses be eliminated and any use be required to conform to the regulations prescribed in this ordinance. Notwithstanding the above, such nonconforming structures or uses of land and structures may be continued although they do not conform with the provisions of this ordinance, subject to the limitations and conditions set forth in this Section.
(Ordinance 2013-09, ex. A, adopted 5/7/13)

§ 35.2 BUILDING ON NONCONFORMING LOTS.

In any zoning district, structures may be erected on any single lot, provided there is access to such structures from a street and the lot was legally platted or is in the same configuration as recorded on the effective date of this ordinance. This provision shall apply even though the lot fails to meet the minimum requirements for area, width, or depth for the zoning district in which it is located; however, all other requirements shall still apply. All structures constructed on nonconforming lots shall meet all development regulations in the zoning district unless proper variances are granted by the Zoning Board of Adjustment. No structure shall be constructed on multiple lots when one (1) or more lots are nonconforming lots.
(Ordinance 2013-09, ex. A, adopted 5/7/13)

§ 35.3 NONCONFORMING STRUCTURES.

A structure that was lawful when constructed, but which no longer conforms to the requirements of this ordinance for yard setback, height, lot coverage, or other development regulations shall be considered nonconforming. Repairs and alterations may be made to a nonconforming structure, provided that no structural alterations shall be made except those required by law or ordinance, unless the structure is brought into conformity with the provisions of this ordinance. The following exclusions apply:
1. 
Structures declared nonconforming by the adoption of this ordinance will be exempt from the minimum living space requirements of the zoning district. These structures may be altered and/or expanded if in compliance with all other requirements of the zoning district. The living space of the existing structure will be accepted as the minimum living space required. If a structure is enlarged under this provision, but still fails to meet the minimum living space requirement for the zoning district, the new total living space provided by the enlargement will be accepted as the new minimum living space requirement in any future construction activity, until the structure is enlarged again or comes into compliance through other actions.
2. 
An EXISTING Single-Family Detached residence located in a Medium Density district as a result of one of the following:
a. 
Annexation.
b. 
Rezoning action not requested by the property owner will be considered a conforming use in the Medium Density district.
(Ordinance 2013-09, ex. A, adopted 5/7/13)

§ 35.4 NONCONFORMING USE OF STRUCTURES.

A nonconforming use of a structure shall not be increased or enlarged and no occupancy of additional structures or land by a nonconforming use shall be permitted except that a nonconforming use of a structure may be extended throughout any parts of the structure 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 this ordinance, 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 zoning district in which the structure is located. The City Council shall have the authority to permit an extension of a structure which is nonconforming as to uses not to exceed twenty-five percent (25%) of the existing floor area, subject to the development regulations applicable in the zoning district, provided that required parking is provided and a specific time limit is placed upon the operation of the nonconforming use. If no structural alterations are made, a nonconforming use of a structure may be changed to another nonconforming use permitted in the same or a more restricted zoning district, provided no new parking is constructed and the new use meets the required number of parking spaces under this ordinance.
(Ordinance 2013-09, ex. A, adopted 5/7/13)

§ 35.5 NONCONFORMING USE OF LAND.

A nonconforming use of land may not be expanded or extended beyond the area of the land actually being occupied by the use at the time it becomes nonconforming, except to provide off-street loading or off-street parking facilities. Notwithstanding the above, the City Council may permit an expansion of a nonconforming use of land on a lot not to exceed twenty-five percent (25%) of the existing area of the land actually being occupied by the nonconforming use, subject to the development regulations applicable in the zoning district, provided that required parking is provided and a specific time limit is placed upon the operation of the nonconforming use.
(Ordinance 2013-09, ex. A, adopted 5/7/13)

§ 35.6 DISCONTINUANCE OR ABANDONMENT.

A. 
A nonconforming use, when discontinued or abandoned, shall not be resumed and any further use shall be in conformity with the provisions of this ordinance. Discontinuance or abandonment shall be defined as follows:
1. 
When land used for a nonconforming use shall cease to be used in a bonafide manner for the nonconforming use for sixty (60) consecutive calendar days.
2. 
When a structure designed or arranged for a nonconforming use shall cease to be used in a bonafide manner as a nonconforming use for a period of one hundred eighty (180) days.
3. 
When land or a structure used only on a seasonal basis is not used in a bonafide manner as a nonconforming use during such season.
B. 
There shall be a rebuttable presumption that discontinuance or abandonment has occurred if the nonconforming use ceases for the above time periods.
C. 
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.
D. 
Upon evidence of hardship, the Zoning Board of Adjustment shall have the power to extend the time limits in paragraph A not to exceed one (1) year.
(Ordinance 2013-09, ex. A, adopted 5/7/13)

§ 35.7 DESTRUCTION OF NONCONFORMING USE OR STRUCTURE.

A. 
Any structure declared nonconforming by the adoption of this ordinance, which is destroyed by fire or natural disaster, may be rebuilt to its previous specifications, provided that the construction complies with all current building codes and is commenced within one hundred eighty (180) days of the date of destruction. The failure of the owner to start such reconstruction within one hundred eighty (180) days shall forfeit the owner’s right to restore or reconstruct the dwelling except in conformance with this ordinance. A larger structure will be permitted if it does not exceed the maximum lot coverage for the zoning district.
B. 
Notwithstanding subsection A, a structure occupied by a nonconforming use that is destroyed by fire or natural disaster, may not be reconstructed or rebuilt except to conform with the provisions of this ordinance unless the destruction amounts to less than fifty percent (50%) of its fair market value at the time of destruction.
If the destruction is greater than fifty percent (50%) and less than total, the City Council may, after a public hearing, authorize repair, taking into consideration the property owner’s circumstances and the effect on surrounding properties.
C. 
If the owner of a nonconforming use fails to begin reconstruction of the destroyed structure (when permitted to do so by the terms of this ordinance) within one hundred eighty (180) days of the date of destruction or approval by the City Council, the nonconforming structure or use shall be deemed to be discontinued or abandoned as provided in Section 35.6 above.
(Ordinance 2013-09, ex. A, adopted 5/7/13)

§ 35.8 ADDITIONAL LIMITATIONS AND PROVISIONS REGARDING NONCONFORMING USES AND STRUCTURES.

A. 
A nonconforming use or structure, if changed to a conforming use or structure, may not be changed back to a nonconforming use or structure. Whenever a nonconforming use is changed to a use permitted in a more restricted zoning district, such use shall not thereafter be changed to a use permitted in a less restricted zoning district.
B. 
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. 
Nothing contained in this ordinance shall require any change in the plans, construction, or designated use of a structure or land development project for which a building permit was lawfully issued no more than one hundred eighty (180) days prior to the adoption or amendment of this ordinance, provided, that such construction shall have been started at the time such use became nonconforming and shall have been diligently prosecuted to completion.
D. 
The foregoing provisions of this Section shall also apply to uses made nonconforming by subsequent amendments to the zoning regulations or by annexation into the city limits of Azle.
E. 
Any use as a specific use permit by the City Council shall, upon its establishment, be considered a conforming use in that zoning district, provided that this regulation shall not be so interpreted as to waive any conditions placed on the specific use permit.
(Ordinance 2013-09, ex. A, adopted 5/7/13)

§ 35.9 AMORTIZATION.

A. 
The City Council may request that the Zoning Board of Adjustment establish a compliance date for discontinuance of a nonconforming use, structure or lot in accordance with this section.
B. 
In determining whether to initiate an amortization proceeding, the Zoning Board of Adjustment may consider the character of the surrounding area, the degree of incompatibility of the nonconforming use, structure or lot to the zoning district in which it is located, the effect of the nonconforming use, structure or lot on the surrounding area, the effect of cessation of the nonconforming use, structure or lot on the area, any other danger or nuisance to the public caused by the nonconforming use, structure or lot, and any other factors the board considers relevant. If the board determines that there is no public necessity for establishing a compliance date, the board shall request that the City Council initiate rezoning of the property to bring the nonconforming use, structure or lot into compliance with applicable zoning regulations.
C. 
Written notice of the hearing shall be mailed to the owner of the use and the owner of the property at least 30 days before the hearing.
D. 
The compliance date for discontinuance of a nonconforming use, structure or lot shall be prescribed by the board at a public hearing, after hearing testimony from the owner, the operator, neighboring property owners, community organizations and other interested parties. In prescribing a reasonable amortization period for the nonconforming use, structure or lot to give the property owner an opportunity to recover his investment from the time the nonconforming use, structure or lot commenced, as allowed by law, the board shall consider the following factors:
1. 
The owner’s capital investment in structures, fixed equipment and other assets (excluding the land and any inventory and other assets that may be feasibly transferred to another site) on the property before the time the nonconformity commenced. Any such investment made after the nonconformity commenced shall not be included;
2. 
Any costs that are directly attributable to the establishment of a compliance date, including demolition expenses, relocation expenses, termination of leases, and discharge of mortgages;
3. 
Any return on investment since inception of the nonconforming use, structure or yard, including net income and depreciation;
4. 
The anticipated annual recovery of investment, including net income and depreciation; and
5. 
Any other factors allowed by law.
(Ordinance 2013-09, ex. A, adopted 5/7/13)