Only the City Council, by majority vote, may request that the Board of Adjustment consider establishing a compliance date for a nonconforming use.

Upon receiving a request under 11.01 Initiation of Compliance Case from the City Council, staff shall schedule the First Public Hearing before the Board. The Board may establish a compliance date only after holding two separate hearings.

11.02.1.

First Public Hearing. The Board shall hold a public hearing to determine whether continued operation of the nonconforming use will have an adverse effect on nearby properties. If, based on the evidence presented at the public hearing, the Board determines that continued operation of the use will have an adverse effect on nearby properties, it shall schedule a second public hearing to establish a compliance date for the nonconforming use; otherwise, it shall not. In determining whether the continued operation will have an adverse effect on nearby properties, the Board shall consider the following factors:

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The character of the surrounding neighborhood.

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

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The manner in which the use is being conducted.

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The hours of operation of the use.

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

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The environmental impacts of the use's operation, including, but not limited to, the impacts of noise, glare, dust, and odor.

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The extent to which public disturbances and nuisances may be created or perpetuated by continued operation of the use.

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The extent to which traffic or parking problems may be created or perpetuated by continued operation of the use.

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Any other factors relevant to the issue of whether continued operation of the use will adversely affect nearby properties.

11.02.2.

Second Public Hearing.

1.

If the Board has determined in the first public hearing that the nonconforming use has an adverse effect on nearby properties, it shall hold a second public hearing to set a date for compliance. The Board shall, in accordance with the law, provide a compliance date for the nonconforming use under a plan whereby the owner's actual investment in the use before the time that the use became nonconforming can be amortized within a definite time period. The following factors must be considered by the Board in determining a reasonable amortization period.

a.

The owner's capital investment in structures, fixed equipment, and other assets (excluding inventory and other assets that may be feasibly transferred to another site) on the property before the time the use became nonconforming.

b.

Any costs that are directly attributable to the establishment of compliance date, including demolition expenses, relocation expenses, termination of leases, and discharge of mortgages.

c.

Any return on investment since inception of the use, including net income and depreciation.

d.

The anticipated annual recovery of investment, including net income and depreciation.

e.

A reasonable wind-up period for the nonconforming use.

2.

If the Board, at the first public hearing, requests financial documentation and/or records from the owner relating to the factors listed directly above, the owner shall provide said documents and/or records at least 30 days before the second public hearing. If the owner does not provide said documentation, the Board is authorized to make its determination of a compliance date based upon any reasonably available public records as well as public testimony at the hearing. Failure by owner to provide the requested financial documents and records shall not prevent the Board from setting a compliance date.

If the Board establishes a compliance date for a nonconforming use, the use must cease operations on that date and it may not operate thereafter unless it becomes a conforming use.

For purposes of this article, "owner" means the owner of the nonconforming use at the time of the Board's determination of a compliance date for the nonconforming use.

11.05.1.

Decisions that Cannot Be Immediately Appealed. A decision by the Board that the continued operation of a nonconforming use will have an adverse effect on neighboring property and the Board's decision to schedule a second public hearing to establish a compliance date are not final decisions and cannot be immediately appealed.

11.05.2.

Decision to Deny a Request to Establish a Compliance Date. A decision by the Board to deny a request to establish a compliance date is final unless appealed to state court within ten calendar days in accordance with V.T.C.A., Local Government Code ch. 211.

11.05.3.

Decision Setting a Compliance Date. A decision by the Board setting a compliance date is final unless appealed to state court within ten calendar days in accordance with V.T.C.A., Local Government Code ch. 211.

11.06.1.

Loss of Nonconforming Rights Status. If the Director or other designee determines that a nonconforming use has been permanently abandoned under 1.07.4(2) Reinstatement of Nonconforming Use Rights and has lost its nonconforming rights, the use shall not be instituted on that parcel or other parcel in any district which does not permit the discontinued use.

11.06.2.

Notice to Owner and/or Operator Required. Notice of this determination shall be made in writing to the owner and/or operator of the abandoned nonconforming use.

11.06.3.

Application for Nonconforming Rights Reinstatement.

1.

The owner and/or operator of the abandoned nonconforming use may submit a written application to the Board to have the nonconforming rights reinstated.

2.

Written application for reinstatement of nonconforming rights must be made within ten business days after the Director and/or his designee issues the written notice of determination that a use has been permanently abandoned.

11.06.4.

Board Decision. The Board may reinstate nonconforming rights only if the Board finds there was a clear intent not to abandon the use even though the use was discontinued for six months or more. The failure of the owner and/or operator to remove on-premise signs shall not be considered (on its own) evidence of a clear intent not to abandon the use.