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Early City Zoning Code

ARTICLE 6

NONCONFORMITIES

Sec. 6-1-1, Purpose

The purpose of this Article is to:

  1. No Expansion. Ensure that nonconforming uses do not expand;
  2. Protection. Protect conforming uses from nuisances that may be associated with nonconformities; 
  3. Curtain Investment. Curtail substantial investment in nonconformities that are contrary to the purpose of this UDC; 
  4. Elimination. Eliminate substantially damaged or abandoned nonconformities whose degrees of incompatibility with adjacent lands uses are high; and 
  5. Balance. Balance the City's objective to eliminate nonconformities with a landowner’s right to maintain and make use of a nonconformity.

Effective on: 6/22/2021

Sec. 6-1-2, General Provisions

  • Application. This Article shall apply to uses, structures, lots, and signs that were lawfully constructed or established on a land site or in a structure before the effective date of this UDC.
  • Continuation. A nonconforming use, structure, lot, or sign that lawfully occupies a structure or site shall be permitted to continue subject to the standards and limitations of this section.  
    1. Nonconforming Use. A nonconforming use may be continued so long as it remains otherwise lawful.
    2. Nonconforming Structure. A structure that does not conform with the standards for front setbacks, side setbacks, rear setbacks, height, screening, floor area of structures, driveways or open space for the underlying Zoning District established in ARTICLE 2, Zoning Districts and Land Uses, in which the structure is located.

    3. Nonconforming Sign. A lawfully established sign that fails to meet the applicable requirements of DIVISION 3-4, Signs, is a nonconforming sign.

    4. Nonconforming Lot.  A lot, not held in common with any other lot, that does not meet the area or other dimensional requirements established in DIVISION 3-1, Lot and Building Standards. 
  • Major and Minor Nonconforming Uses and Structures. Nonconforming uses and structures are classified as major or minor, as follows:
    1. Major. Major nonconforming uses or structures are those uses that rise to the level of creating a  nuisance, as determined by Texas State law; Chapter 6, Buildings and Building Regulations, of the City's Code of Ordinance; or the City's Comprehensive Plan where it explicitly states that the uses should be eliminated.
    2. Minor. Minor nonconforming uses or structures are those not classified as major nonconformities.
  • Amortization of Nonconforming Uses or Nonconforming Structures. A nonconforming use, structure, or sign may be amortized by the City based on the City providing the following:
    1. Adequate written notice to the owner of the impending amortization;
    2. Sufficient time for the owner to procure an appropriate place to relocate; and
    3. Just compensation for the value of the property, the costs associated with moving the use, and the loss of revenue due to the discontinuance of the use.
  • Unlawful Uses, Buildings, Structures, Signs, or Lots. A use, structure, sign, or lot that did not comply with applicable laws at the time it was established, constructed, or created, is an unlawful use, building, structure, sign, or lot. Unlawful uses, buildings, structures, signs, and lots are violations of this Code and are not subject to this Article.
  • Nonconformities Created by Public Action. Any nonconforming structure or land expressly created or caused by a conveyance of privately owned land to a federal, state, or local government to serve a public purpose is conforming for the purposes of this UDC, and is not subject to the limitations of this Article. This exemption applies only in cases where private land is obtained by a governmental entity for a public purpose, through condemnation, threat of condemnation or otherwise, which creates a nonconformity in the remainder parcel in terms of setback, lot size, or other applicable standards of this UDC. This exemption does not apply to right-of-way dedication or other public conveyances of land required by the City in the course of subdivision or other routine site plan approvals.

    • Effective on: 6/22/2021

    Sec. 6-2-1, Nonconforming Uses

  • All Nonconforming Uses. The following shall apply to major and minor nonconforming uses. 
    1. A nonconforming use shall not be changed to another nonconforming use.
    2. If a nonconforming use is changed to a conforming use, the nonconforming use shall not be resumed.
    3. If the use of only a portion of a building or property is changed from a nonconforming use to a conforming use, then the use of that portion of the building or property shall not be changed back to the nonconforming use.
  • Major Nonconforming Uses.
    1. Discontinuance of a major nonconforming use for a period of 12 consecutive months constitutes abandonment of the use, regardless of the owner’s intent. A major nonconforming use shall not be re-established on the property after it is abandoned unless the City Council approves a Zoning Map Amendment in accordance with Sec. 2-1-2, Official Zoning Map, that makes the prior use conforming.
    2. A major nonconforming use shall not be expanded, enlarged, extended, increased, or moved to occupy an area of land or building that was not used or occupied on the effective date of this UDC or any amendment that made the use nonconforming.

    3. No structures containing a major nonconforming use shall be enlarged unless the major nonconforming use is permanently discontinued.

  • Minor Nonconforming Uses.
    1. Discontinuance of a minor nonconforming use for a period of 12 consecutive months constitutes abandonment of the use, regardless of the owner's intent. A minor nonconforming use shall not be re-established on the property after it is abandoned unless the unless the property owner converts the nonconforming use to a conforming use in accordance with Sec. 6-2-5, Mitigation of Nonconformities, prior to the end of the six-month period.
    2. No minor nonconforming use shall be expanded or extended in such a way as to:
      1. Occupy any open space or landscaped area that is required by this UDC;
      2. Exceed pervious cover, intensity, or height limitations of the zoning district in which the use is located;
      3. Occupy any land beyond the boundaries of the property as it existed on the effective date of this UDC; or
      4. Displace any conforming use in the same building or on the same property.

    • Effective on: 6/22/2021

    Sec. 6-2-2, Nonconforming Structures

  • Generally. Where a lawful structure exists at the effective date of adoption of this Chapter that could not be built under the terms of this Chapter by reason of restrictions on area, lot coverage, height, yards, or other characteristics of the structure or its location on the lot, such structure may be continued so long as it remains otherwise lawful, subject to the following provisions:
    1. Increase in Nonconformity Prohibited. No such structure may be enlarged or altered in any way which increases its nonconformity. 
    2. Movement of Structure. Should any on-site structure be moved for any reason or for any distance, it shall thereafter conform to the regulations for the district in which it is located after it is moved.
  • Damage or Destruction. If a major or minor nonconforming structure is damaged or partially destroyed by any means, the structure may be restored to its original dimensions provided that: 
    1. Percentage. The damage or destruction does not exceed 50 percent of the gross floor area (GFA) of a major nonconforming structure or 66 percent of the GFA of a minor nonconforming structure;
    2. Permit. A Building Permit is obtained for repairs within six months of the date the building was damaged; 
    3. Construction. The construction is commenced within six months after obtaining the required Building Permits; and
    4. No Increase. The original nonconformity is not enlarged, increased, or extended.
  • Existing Nonconforming Structures in the Regulated Floodway. It is the intent of the City that no permanent buildings or structures be located or substantially improved in the floodway, except according to the standards in ARTICLE 5, Environmental Management, and that existing nonconforming structures shall be removed upon abandonment. As such, a property with an abandoned nonconforming structure in the floodway shall not be eligible for any development review approval until the property owner removes the abandoned nonconforming structure.

    • Effective on: 6/22/2021

    Sec. 6-2-3, Nonconforming Lots

  • Generally. A lot shall be deemed to be nonconforming if the lot does not meet any lot requirement that is not zoning district-specific (See Sec. 3-1-3, Standards for Rural and Residential Development and Sec. 3-1-6, Nonresidential and Mixed-Use Standards.)
  • Combination of Lots to Increase Conformity.
    1. Combination. Where a property owner owns more than one abutting nonconforming lot, the lots shall be combined to create fully conforming lots prior to any other development application submittal for the property. Or, if full conformity is not possible, they shall be combined if the combination will increase the degree of conformity. 
    2. No Combination. A property owner is not required to combine lots pursuant to Paragraph B.1, above, if:
      1. The combination of lots would not address the nonconformity;
      2. The combination of lots would disrupt the lotting pattern of the street, for example, by creating an internal through on a street segment that does not include any other through lots;
      3. Two or more of the lots are developed with principal buildings, and the combination of lots would require that one or more of the buildings be torn down or the property undergo a Zoning Map Amendment in order to comply with this UDC; or
      4. The combination of lots would result in regularly shaped lots being combined into a single lot with an irregular shape, such as a flag lot.
  • Construction on Nonconforming Lots of Record. A nonconforming lot that cannot be combined with another lot in accordance with Subsection B, Combination of Lots to Increase Conformity, may be built upon if, as of the effective date of this UDC:
    1. Permitted Use. The use is permitted in the zoning district in which the lot is located; 
    2. Sufficient Frontage. The lot has sufficient frontage on a public street to provide access that is appropriate for the proposed use; and
    3. Setbacks and Height. All setbacks and height requirements are met, except that the City Administrator may authorize a reduction of required setbacks of up to 10 percent, provided that the City Administrator finds that the reduction does not allow a building that would be larger than a building that would be permitted on the minimum conforming lot in the zoning district.

    • Effective on: 6/22/2021

    Sec. 6-2-4, Nonconforming Signs

  • Generally. Any permanent sign or billboard that does not conform to the provisions of DIVISION 3-4, Signs, is a "legally nonconforming" sign or billboard, provided that the sign or billboard was:
    1. Authorized by a sign permit prior to the effective date of this Chapter;
    2. Not subject to an applicable law, when it was installed; or
    3. Installed prior to the sign being annexed into the City.
  • Damage or Destruction. If a nonconforming sign is damaged or destroyed by any means and the repair or reconstruction cost, whichever is applicable, equals or exceeds 50 percent of the fair market value of the sign at the time of the damage, it shall be removed or brought into compliance with this UDC.
  • No Message. If a nonconforming sign does not display any message for a period of six months, it shall be removed or brought into conformance with this UDC.
  • Removal. If a nonconforming sign is removed for any reason, it shall not be replaced unless the replacement sign conforms to this UDC.
  • Danger. A nonconforming sign that the Administrator determines to be a danger to public safety due to damage or wear shall be removed and shall not be replaced unless the replacement sign conforms to this UDC.
  • Temporary Signs. Signs are temporary in nature and not in compliance with Sec. 3-4-8, Temporary Signs, shall be removed.
  • Removal of Certain Prohibited Signs. Signs made of materials or sign types identified in Sec. 3-4-4, Prohibited Signage, shall be removed within 30 days after the effective date of this UDC.

    • Effective on: 6/22/2021

    Sec. 6-2-5, Mitigation of Nonconformities

  • Generally. Nonconformities, in many instances, may serve as an integral part of a City's character and function.  Therefore,  it may be counter to a community desire to classify such nonconformities. Such classification may produce a stigma or restrict investment to the use, structure, lot, or sign. This Section provides the means to mitigate a minor "nonconforming" designation and establish its legal conformity.
  • Mitigation of Nonconforming Status. The owner of a nonconformity may employ the mechanisms denoted in Table 6-2-5-1, Mitigation of Nonconforming Status, in an attempt to mitigate the nonconformity.

    •  Table 6-2-5-1,

    Mitigation of Nonconforming Status 

     Nonconformity Mechanism to Mitigate Nonconforming Status
     UseConversion of the existing use to a conforming use. 
    Approval of a Zoning Map Amendment to a district in which the use is permitted.
    Approval of a Specific Use Permit in accordance with Sec. 6-2-5.C, Procedure to Convert Minor Nonconforming Use or Structure
    StructureModification of the structure to conform.
    Approval of a Variance to allow the structure as built.
    Approval of a Zoning Map Amendment o district to which the structure would conform.
    Approval of a Specific Use Permit in accordance with Sec. 6-2-5.C, Procedure to Convert Minor Nonconforming Use or Structure
     SignModification of the sign to conform. 
    Replacement of the sign with a permitted sign type
     LotApproval of a replat. 
    Combination of properties held in common ownership to create a conforming lot.
     
    1. Procedure to Convert Minor Nonconforming Use or Structure. An owner of a minor nonconforming use or structure may apply for a Specific Use Permit as established in Sec. 8-4-2, Specific Use Permit, that upon approval, has the effect of:
      1. Making the use or structure conforming; or
      2. Allows re-establishment or reconstruction of a minor nonconforming use or structure beyond the limits established in DIVISION 6-2, Types of Nonconformities. 
    2. Exclusions. This procedure only applies to minor nonconforming uses and structures and does not apply to any other type of nonconformity.
    3. Decision Criteria. 
      1. Review and Decision. In determining whether to approve, approve with conditions, or deny a Specific Use Permit under this Section, the review bodies shall consider the applicable review criteria in this UDC and the following: 
        1. Minimal Nonconformities. The structure or use, as conducted and managed, has minimal nonconformities and has been integrated into the neighborhood's function.
        2. Patrons and Employment. Nearby residents regularly patronize or are employed at the subject property.
        3. Nuisances. Construction or management practices eliminate nuisances such as noise, light, waste materials, unreasonably congested on-street parking, or similar conflicts.
        4. Previous Complaints.
          1. There is no material history of complaints about the structure or use; or
          2. The conditions of the Specific Use Permit will eliminate the sources of the complaints.
        5. Disincentive for Maintenance. The structure or use has been maintained in good condition and its classification as a nonconformity would be a disincentive for such maintenance.
        6. Affirmative Findings. In order to approve a Specific Use Permit, the final decision-making body shall make affirmative findings on all of the applicable decision criteria.
    4. Conditions. The City Council may impose conditions relative to the establishment or expansion of bufferyards, landscape areas, or other site elements, or other limitations necessary to ensure that the structure or use will not become a nuisance.

    Effective on: 6/22/2021