A.

Zoning districts. The adoption of the City's Official Zoning Map establishes the zoning districts in Table 4.1-1. Zoning Districts.

B.

District boundaries. Unless otherwise specified, district boundaries are lot lines, the centerlines of streets, creeks, and railroad right-of-way, or such lines extended.

A.

Incorporation of map. The location and boundaries of the zoning districts defined in 4.1.1 Zoning Districts Established are established by the adoption of the Official Zoning Map of the City referred to as the "zoning map" hereafter.

B.

Map interpretation.

1.

Where any uncertainty exists about a zoning boundary that was established by legal description, the legal description accompanying the amending ordinance governs.

2.

In circumstances in which the legal description for the property in question is missing, the Planning Director will determine the location of the zoning district boundary.

a.

An appeal of the Planning Director's determination of the zoning district boundary may be appealed to the Zoning Board of Adjustment pursuant to 4.2.11B.1 Appeal of an Administrative Decision.

C.

Maintenance.

1.

The Planning Director is responsible for maintaining a paper and electronic copy of the zoning map. The Planning Director will maintain and update the zoning map in a GIS (Geographic Information Systems) format.

2.

The zoning map will show the date the zoning map was adopted by the City and the date the last amendment was approved by City Commission.

D.

Zoning map amendments.

1.

The Planning Director will use all reasonable means to ensure that no changes are made to the zoning map without authorization by official action of the City Commission.

2.

Any changes or amendments made to the zoning district boundaries shall be incorporated into the zoning map promptly after the City Commission has approved such amendment.

3.

The Planning Director will maintain a record of all map amendments approved by the City Commission.

E.

Zoning upon annexation. When land is annexed or otherwise brought into the jurisdiction of the City it may be classified in the Agriculture (AG) District or assigned another zoning classification based on the comprehensive plan, existing land uses, any applicable annexation agreement and other relevant considerations.

A.

Purpose. The purpose of this section is to regulate nonconforming uses, lots, or structures that are created when zoning designations or regulations are created or changed such that an existing lawfully established use, lot or structure no longer conforms to the regulations of this UDC; to explain the effect of this nonconforming status and help differentiate nonconformities, which have legal status under this zoning code, from zoning violations, which are illegal and subject to penalties and enforcement action. The regulations of this chapter are also intended to:

1.

Recognize the interests of landowners in continuing to use their property for uses that were lawfully established;

2.

Promote maintenance, reuse and rehabilitation of existing buildings; and

3.

Place reasonable limits on nonconformities that have the potential to adversely affect surrounding properties.

B.

Authority to continue. Any nonconformity that existed on the effective date specified in 1.3 Effective Date or any lot, structure use or situation that becomes nonconforming upon adoption of any amendment to this zoning code or any amendment of the zoning map subsequent to the effective date specified in 1.3 Effective Date may be continued, subject to the regulations of this chapter.

C.

Determination of nonconforming status.

1.

The burden of proving that a nonconformity exists (as opposed to a zoning code violation) is the responsibility of the subject owner.

2.

The Planning Director is authorized to determine whether reliable evidence of nonconforming status has been provided by the subject owner.

3.

Building permits, zoning determinations, lawfully recorded plats, lawfully recorded instruments of conveyance, aerial photography owned by a governmental agency, and other official government records that indicate lawful establishment of the use, lot or structure constitute conclusive evidence of nonconforming status. If such forms of conclusive evidence are not available, the Planning Director is authorized to consider whether other forms of evidence provided by the owner are reliable and adequate to document nonconforming status. Common examples of evidence that may be determined to be reliable and adequate include:

a.

Professional registrations or business licenses;

b.

Utility billing records;

c.

Rent records;

d.

Advertisements in dated publications;

e.

Listings in telephone or business directories; and

f.

Notarized affidavits affirming the date of lawful establishment of the use or structure.

4.

The Planning Director's determination of nonconforming status may be appealed to the board of adjustment in accordance with 4.2.11 Zoning Relief.

5.

Repairs and Maintenance. Nothing in this UDC shall prohibit the routine operation and maintenance of legal nonconforming uses, structures, lot or sites.

6.

Change of Tenancy or Ownership. Nonconforming status runs with the land and is not affected by changes or tenancy, ownership, or management.

D.

Nonconforming lots.

1.

Existing Platted Lots are Conforming Lots. Any existing lot platted prior to the adoption of this UDC, which was legally conforming, shall be deemed a conforming lot.

2.

Residential Lot Exemption. The minimum residential lot areas for the various zoning districts shall be in accordance with their respective districts, except that a lot having less area than herein required that was an official "lot of record" prior to the adoption of this UDC may be used for a single family dwelling. All other lot and building regulations apply.

E.

Nonconforming structures.

1.

Nonconforming structures are permitted to exist for continued and creative reuse to contribute to the surrounding character, diversity, and services in the neighborhood until such structures are removed.

2.

Repairs to nonconforming structures or portions thereof are permitted, so long as the nonconforming portion of the structure is not enlarged in volume, area or footprint.

3.

Reconstruction of nonconforming structures or portions thereof amounting to less than 50% of the existing square feet are permitted so long as the nonconforming portion of the structure is not enlarged in volume, area or footprint.

4.

Voluntary removal, damage or destruction of a nonconforming structure or portion thereof amounting to 50% or more of the existing square feet shall require either complete removal of the structure or its reconstruction in conformance with existing regulations.

5.

Involuntary damage to or destruction of a nonconforming structure (from fire, winds or other calamity) shall permit the owner to rebuild, reconstruct or restore the structure on the same footprint of the original structure plus any addition or expansion that is allowed by the underlying zoning district. Such reconstruction is permitted as long as it begins within eighteen (18) months of the loss and complies with all other applicable zoning, development and building codes.

6.

Should a nonconforming structure be moved for any reason for any distance whatever, it shall thereafter conform to the regulations for the district in which it is located after it is moved.

7.

A structure or portion thereof within any zoning district may be altered to decrease its nonconformity.

8.

A nonconforming structure may be brought into conformity by way of an approved variance from the Board of Adjustment, a rezoning action, or by altering the structure to comply with the standards of the underlying zoning district. A structure constructed unlawfully shall not be considered a nonconforming structure for the purposes of this chapter and is a prohibited structure unless it is brought into compliance as provided herein.

F.

Nonconforming uses.

1.

Discontinuance of Nonconforming Use.

a.

If a nonconforming use ceases operations for a period of more than six (6) months, then such nonconforming use shall be deemed to be permanently discontinued.

b.

For the purpose of this paragraph, to "cease operations" shall mean to intentionally terminate operations of the nonconforming. Any nonconforming use that does not involve a permanent type of structure or operation, and that is moved from the premises shall be considered to have been discontinued, regardless of intent.

2.

Expansion of Nonconforming Use. A nonconforming use of a portion of a building may be expanded or extended into the remaining portions of the building if the development administrator determines that the areas of the building in which the expansion is proposed were manifestly arranged and designed for the use. Nonconforming use may not be expanded or extended in any other way unless the expansion reduces or eliminates the nonconformity.

3.

Noncompliance with Off-Street Parking Requirements. If a use is deemed nonconforming due to noncompliance with off-street parking requirements, the following shall apply:

a.

Whenever a building or use is changed or enlarged in floor area, number of dwelling units, seating capacity or otherwise, to create a need for additional parking spaces, such additional spaces shall be provided in accordance with 4.6.2 Parking based on the new use or area.

b.

This requirement does not apply if a Special Exception or Alternative Compliance approval has been granted for a reduced parking requirement.

4.

Noncompliance with Landscaping Requirements. If a use is deemed nonconforming due to noncompliance with landscaping requirements, the following shall apply:

a.

If an existing building or use is altered (i.e., at least twenty (20) percent of the original floor area), then the standards and criteria contained within 4.6.3 Landscaping shall apply.

b.

If an existing building is altered less than twenty (20) percent, then the standards and criteria contained in 4.6.3 Landscaping shall not apply.

c.

Additionally, any use requiring a Specific Use Permit, or a Planned Development zoning designation must comply with 4.6.3 Landscaping unless special landscaping standards are otherwise provided for in the ordinance establishing the SUP or PD district.

A.

City commission initiation. The City Commission may, by majority vote, request that the Zoning Board of Adjustment study and decide upon the amortization of a nonconforming use, including a specific date that the use is to be considered amortized.

B.

Action by the board to begin analysis.

1.

If the Commission so directs, the Zoning Board of Adjustment shall, at its next available meeting, make a motion to do the following:

a.

Continue the matter to a future meeting; or

b.

Begin amortization proceedings and direct staff to study and analyze the nonconforming use and present its findings at a specified future meeting of the Board.

2.

If the Board votes to continue the matter, it is continued for up to six (6) months. At the conclusion of six (6) months, the Board will vote either to discontinue amortization proceedings or to initiate amortization proceedings in accordance with this section based upon the prima facia facts of the case.

3.

The Board will set a date for the completion of the analysis and the first public hearing required under E. below.

4.

Lack of a sufficient majority (75% of members of the Board) on a motion made under this subsection B. will result in discontinuation of the amortization proceedings.

C.

Notification of parties.

1.

The property owner subject to the amortization must be notified prior to the initial meeting of the Board.

2.

The City shall provide notice of the public hearings by mail to property owners within two hundred (200) feet of the property subject to the proceedings, and may compel the appearance of experts and witnesses to give testimony at the public hearings.

3.

The term "owner" as it is used in this Section refers to both the property owner and the business owner; if one party is specified, it is understood that the specified person is used exclusive of the other person.

D.

Content of initial meeting.

1.

No evidence or testimony will be considered by the Board at the initial meeting; however, the Board may direct staff or the owner to gather and present additional information in considering whether to proceed with amortization hearings, including financial records or appraisals of the subject property or surrounding properties, or direct staff or the property owner to provide such information at the public hearings.

2.

The owner may be present at the initial meeting and respond to questions from the Board but may not present evidence or testimony until the commencement of the public hearings, except as specifically directed by the Board (see E below).

E.

Public hearings required.

1.

The Zoning Board of Adjustment shall issue no order regarding the amortization of a nonconforming use until it has held two (2) public hearings on the matter.

2.

Staff shall present evidence prior to the first public hearing addressing the impacts of the nonconforming use on surrounding properties and other persons affected by the nonconforming use.

3.

Staff may also present other evidence requested by the City Commission in its action initiating the amortization or requested by the Board at its initial meeting.

4.

The analysis and any order of the Board must specifically address the following factors:

a.

An affirmative finding that the use creates a Nuisance or threat of imminent destruction, damage, or injury to property and persons.

b.

The character of the surrounding properties or neighborhood.

c.

The degree of incompatibility of the use within the zoning district in which it is located.

d.

The manner in which the use is being conducted.

e.

The hours of operation of the use.

f.

The extent to which continued operation of the use may threaten health or public safety.

g.

The environmental impacts of the use and its operation including, but not limited to, noise, Glare, dust, odor, and traffic generated by the use and its operation.

h.

The extent to which public disturbances and Nuisances, including the items listed in d above are created by the use and can be expected to continue in the future operation of the use.

i.

Other factors relevant to the question of whether continued operation of the use will cause adverse impacts upon nearby properties or affected persons.

j.

The extent to which the nonconforming use impacts the market value and desirability of surrounding properties or neighborhoods.

5.

Upon presentation of the analysis, along with testimony and evidence presented by the owner or the owner's representatives, witnesses, or experts, as well as witnesses or experts as may be compelled by the Board to present testimony or evidence on any material issue related to the amortization, the Board shall do the following:

a.

Open the public hearing;

b.

Enter into a period of deliberation upon the evidence and testimony presented;

c.

Propose a date for the amortization period to end based on the recommendation of staff and the factors listed in F.3 below, should the amortization be ordered after the second public hearing;

d.

Declare a date for the second public hearing and final decision no later than ninety (90) calendar days from the date of the first public hearing.

6.

The Board may request further information or evidence be provided by staff at the second public hearing.

7.

All evidence and testimony shall be presented directly to the Board. The Board may call witnesses to testify multiple times at the same hearing or at each hearing, but there shall be no cross-examination or questioning from any party at a public hearing other than those questions asked by the Board or directed to the Board.

F.

Final board of adjustment action.

1.

Decision Following Second Public Hearing. Following the second public hearing, the Zoning Board of Adjustment may order that the nonconforming use be discontinued in accordance with a plan to amortize the value of the use, including structures and equipment associated with the use, over a specified period of time.

2.

Issuance of Order Without Owner's Financial Information. Failure by the owner to provide financial documentation, records, or other evidence does not prevent the Board from establishing a date by which the use must be amortized and made compliant with this UDC.

3.

Factors to Be Addressed in The Order to Amortize. The order must address all factors listed in E.4 above and give consideration to the following:

a.

The owner's capital investment in assets that existed on the property prior to the use becoming a nonconforming use, including structures, fixed equipment, and other assets not feasibly transferrable to another site.

b.

Costs that are directly attributable to discontinuing the use by the compliance date, including costs of demolition, relocation, early termination of lease, and discharge of mortgage.

c.

Any return on investment since inception of the use based on net income.

d.

Anticipated annual recovery of investments based on projected net income.

e.

The character of the surrounding uses and properties and the uses allowed under the current zoning on the property.

f.

The property rights of affected persons, including the property owner and business owner, as well as the rights and the welfare of surrounding property owners and other persons affected by the proposed use.

4.

Effect of Order Upon Cessation of Use.

a.

If the Board votes to issue an order amortizing the nonconforming use and establishes a compliance date, the use must cease all operations by that date and the owner may not continue or reestablish the nonconforming use, including any operation subject to the order of the Board, on or after that date.

b.

The Board may structure its order so as to phase amortization of portions of the use by certain dates and may establish any conditions upon the use operation related to the factors listed in E.4 or F.3 above; however, the Board may not issue an order that explicitly or in effect provides for only a partial amortization with no date by which the use must entirely cease.

5.

Approval of Motion.

a.

A motion to issue an order to amortize the nonconforming use and establish a compliance date must be affirmed by at least seventy-five percent (75%) of the members of the Board.

b.

If no motion is made, or less than seventy-five percent (75%) of the members vote to approve a motion to amortize the use, the amortization proceedings are discontinued and the nonconforming use may continue subject to the provisions and requirements of 4.1.3 above, unless the decision of the Board is appealed (see G.1 below).

G.

Appeal and extension of order.

1.

If the Board approves a motion to discontinue amortization proceedings, or the proceedings are discontinued due to lack of a motion or insufficient votes to approve a motion to amortize the use, the decision of the Board is final unless appealed to a court of competent jurisdiction no later than ten (10) calendar days following the Board's decision.

2.

If the Board approves a motion to amortize the use by setting a compliance date, the decision of the Board is final unless appealed to a court of competent jurisdiction no later than ten (10) calendar days following the Board's decision.

3.

The Board may approve a one-time extension of up to six (6) months after the compliance date following a public hearing and consideration of additional testimony and evidence by the owner, and subject to any conditions the Board may place upon the extension to protect public safety and welfare.

H.

This section as applied to manufactured housing use or communities. In applying the regulations and procedures of this section to a Manufactured Housing use or community, the City will apply these regulations and procedures in a manner consistent with TLGC Section 211.018.