Euless City Zoning Code
ARTICLE III
NONCONFORMANCE
§ 84-50 Purpose and intent.
It is the purpose of this article that nonconforming uses and structures shall be eventually discontinued and the use of such premises shall be required to conform to the regulations prescribed herein having due regard for the investment in such nonconforming use.
Except as hereinafter provided, no nonconforming use of land or building, nor any nonconforming structure shall be enlarged, changed, altered, or repaired, except in conformity with the following regulations.
(Ordinance 1133, § 1(3-100), 3-22-94)
§ 84-51 Types of nonconformity.
Nonconformity of use.
Any use of land or building which does not conform to the permitted use regulations prescribed in this chapter shall be deemed to be a nonconforming use.
Nonconformity of structure or building.
Any building or structure which does not conform to the lot area, yard setback, impervious coverage, height, parking, loading, screening, access or other site development standards prescribed in this chapter shall be deemed to be a nonconforming structure.
(Ordinance 1133, § 1(3-200), 3-22-94)
§ 84-52 Recognition of nonconformity.
A nonconforming status under the provisions of this chapter shall exist under the following circumstances:
Pre-existing to chapter.
(A nonconformity shall exist) when a use or structure which does not conform to the regulations prescribed for the district in which such use or structure is located, was in existence and lawfully constructed, located and operating on the effective date of this chapter and has since been in regular and continuous use.
Pre-existing at annexation.
(A nonconformity shall exist) when a use or structure, which does not conform to the regulations prescribed in the district in which such use or structure is located, was in existence and lawfully constructed, located and operated at the time of annexation to the city and has since been in regular and continuous use.
Right-of-way acquisition by governmental agency.
Definitions.
As used in this subsection, the following terms shall have the respective meanings ascribed to them:
Building official shall mean the building official of the City of Euless, Texas or his designee.
City manager shall mean the city manager of the City of Euless, Texas or his designee.
Damages to the remainder shall mean the diminution or reduction of value of the remainder property suffered as a result of the acquisition of portion of a property for public right-of-way.
Governmental agency shall mean the United States of America, State of Texas, County of Tarrant, City of Euless, or any other governmental agency with the power to acquire property through the exercise of eminent domain under federal or state laws.
Right-of-way acquisition shall mean the securing of right-of-way through negotiation, purchase, bargain, trade, donation, eminent domain, or other means but not including the dedication of right-of-way through the platting or zoning processes.
Exemption from nonconforming status.
Except as otherwise provided in this section, in the event a right-of-way acquisition by a governmental agency causes a property or its existing improvements to be in violation of then existing development provisions of this chapter, the city manager is authorized to exempt the property from the provisions of this chapter to the extent the violation is caused by the right-of-way acquisition, subject to the provisions set forth in this section. Upon approval of such exemption, the property shall be considered to be in conformity with the development regulations of this chapter and shall not be subject to the provisions of this article regarding registration, termination, changing or other limitations on nonconforming uses.
The owner of property eligible for exemption under this subsection may apply to the city manager for approval of an exemption. The city manager may grant an exemption, in whole or in part, from the requirements of otherwise applicable development regulations, after taking into consideration the following factors:
Whether the benefits to the public from exempting the property from the development regulations outweigh any adverse effects that might be caused by noncompliance with such regulations;
Whether the exemption will cause the property to be inadequately served by utilities, road access, drainage and other necessary supporting facilities;
Whether the location and arrangement of all public and private streets, driveways, parking spaces, entrances and exits provide for a safe and convenient movement of vehicular and pedestrian traffic without adversely affecting the general public or the use of adjacent properties;
Whether the approval of the exemption will impede the normal and orderly development and improvement of neighboring vacant property;
Whether the use of the property will be compatible with and not injurious to the use and enjoyment of neighboring property, nor significantly diminish or impair property values within the vicinity;
Whether there is sufficient landscaping and screening to ensure harmony and compatibility with adjacent properties;
Whether the property remaining after the right-of-way acquisition is reasonably configured to allow compliance with the applicable development regulations that are not covered by the exemption;
Whether the owner of the property has made reasonable efforts to meet the development standards applicable to the property;
Whether the cost to bring the property into compliance would be unreasonable compared to the benefits that would be gained from doing so.
In approving an exemption under this subsection, the city manager may place reasonable terms, conditions, or limitations on the exemption as deemed necessary to protect the public health, safety or welfare or that otherwise limit the adverse impact of the property. The city manager may revoke an exemption if he determines that the property fails or has ceased to be in compliance with any terms, conditions or limitations that are placed on the exemption.
In granting an exemption under this subsection, the city manager may authorize the relocation of existing signs that were in compliance with city sign regulations prior to the acquisition of the right-of-way but are required to be moved because of their location within the acquired right-of-way. The city manager shall determine a location on the property for the relocation of the signs that minimizes the impact of the signs on traffic safety, aesthetics, and the use and enjoyment of adjacent properties.
Property shall not be eligible for exemption under the following circumstances:
Zoning change.
An exemption shall not be valid on property that undergoes a zoning change initiated by the property owner subsequent to the right-of-way acquisition; instead, the property shall have a nonconforming status to the extent that any nonconformance with city ordinances resulted from a right-of-way acquisition by a governmental agency prior to the rezoning, and shall be treated as a nonconforming use or structure pursuant to the provisions of this article. A zoning change initiated by the city shall not cause property to lose the exemption provided by this subsection.
Compensation for noncompliance.
The exemption shall not apply to property if the right-of-way acquisition is determined to render the remainder of the property unusable pursuant to agreement with the governmental agency or judicial determination, and the governmental agency compensates the property owner for the damage to the remainder. Where such compensation is provided, the property owner is responsible for any curative measures necessary to bring the property into compliance with the development regulations of this chapter.
Safety hazard.
An exemption shall not be granted to any development regulation if doing so would create a traffic safety hazard or other life safety hazard on the property or adjacent thereto.
The approval or denial of an exemption by the city manager may be appealed, in whole or in part, to the board of adjustment in accordance with the procedures set forth in section 84-27 of this chapter.
Process to be followed if property is in noncompliance.
For property in which an exemption is not granted, the city manager, building official or other authorized city official is authorized to:
Provide notice to any affected property owner, lien holder, and/or certificate of occupancy holder, listing any items of noncompliance;
Revoke a certificate of occupancy of any building or structure for noncompliance with a code, ordinance, or regulation; and
File an affidavit in the county deed records noting the item(s) of noncompliance, and that a certificate of occupancy shall not be reissued until such noncompliance is cured. Once the property and its improvements are brought into full compliance with all applicable ordinances of the city, an affidavit shall be filed in the county deed records noting such compliance.
Editor’s note–Ord. No. 1917, § 2, adopted June 28, 2011, changed the title of § 84-52 from Status of nonconformity to recognition of nonconformity.
(Ordinance 1133, § 1(3-300), 3-22-94; Ordinance 1917, § 2, 6-28-11)
§ 84-53 Registration of nonconforming uses.
The user or owner of all nonconforming uses of land or buildings shall, within 18 months of the effective date of this chapter, register such nonconforming use by obtaining from the city a certificate of occupancy (nonconforming). Such certificate of occupancy (nonconforming) shall be considered as evidence of the legal existence of a nonconforming use as contrasted to an illegal use or violation of this chapter. The city shall maintain a register of all certificates of occupancy issued for nonconforming uses.
(Ordinance 1133, § 1(3-400), 3-22-94)
§ 84-54 Termination of nonconforming uses.
It is the intent of this chapter that nonconforming uses eventually be discontinued having due regard for the investment. Conditions that would require nonconforming uses to be terminated are provided below.
Remodeling and enlarging.
A nonconforming use may be occupied, used and maintained in good repair, but it shall not be remodeled or enlarged except as hereinafter provided.
Right to operate.
The right to operate a nonconforming use shall cease and such use shall be terminated under any of the following circumstances:
Abandoned use of structure.
Whenever a nonconforming use is abandoned, all nonconforming rights shall cease and the use of the premises shall henceforth be in conformance with this chapter. Abandonment shall involve the intent of the user or owner to discontinue a nonconforming operation and the actual act of discontinuance. Any nonconforming use which is discontinued, or which remains vacant, for a period of six months shall be considered abandoned.
Violation of provisions.
Whenever there is a violation of any of the provisions of this chapter or violation of any ordinance of the city with respect to a nonconforming use.
Conformance by rezoning.
Whenever a nonconforming use is changed to a conforming use by rezoning so as to achieve compliance with the provisions of a new or different zoning district.
Conformance by change of use.
Whenever a nonconforming use is changed to a conforming use under the provisions of this chapter.
Destroyed or damaged structure.
Whenever the structure in which a nonconforming use is housed, operated or maintained is destroyed or damaged by fire or other causes to the extent of more than 51 percent of the replacement cost of the structure, on the date of the damage, the right to operate such nonconforming use shall terminate.
Termination by board.
Whenever the right to maintain or operate a nonconforming use is terminated by the board in accordance with the provisions of this chapter.
Approval of specific use permit.
Any use which is permitted as a specific use permit by the city council in accordance with the provisions of this chapter shall, upon its establishment, be considered a conforming use in that zoning district and shall not thereafter be changed back to a nonconforming use, provided that this regulation shall not be so interpreted as to waive any conditions placed on the specific use permit by the city council. Whenever a specified term for a specific use permit has expired, the use shall not be deemed to be a nonconforming use and the property may only be used for a use permitted in the applicable zoning district unless an extension of the term of the specific use permit is approved by the city council. If a specific use permit is revoked in accordance with section 84-157, the use shall not be deemed to be a nonconforming use and the property may only be used for a use permitted in the applicable zoning district.
(Ordinance 1133, § 1(3-500), 3-22-94; Ordinance 2128, § 1, 8-16-16)
§ 84-55 Changing nonconforming uses.
Changes from nonconforming uses to conforming uses may be approved administratively, however, changes that do not eliminate nonconforming uses shall be considered by the board of adjustments and may be authorized only upon the board’s finding that the change conforms to the intent of this chapter and is in the public’s interest.
Changing to conform.
Any nonconforming use may be changed to a conforming use and once such change is made, the use shall not thereafter be changed back to a nonconforming use.
Granting of change.
The board may grant a change of use from one nonconforming use to another nonconforming use provided such changes are to a use permitted in a zoning district where the original nonconforming use would be permitted or provided that such change is to a use permitted in a more restrictive classification. However, such change of use and occupancy shall not tend to prolong the life of a nonconforming use. Upon review of the facts, the board may establish a specific period of time for the return of the occupancy to a conforming use.
Approval to remodel and/or enlarge.
The board may approve the remodeling and/or enlargement of a nonconforming use when such an enlargement would not tend to prolong the life of the nonconforming use.
(Ordinance 1133, § 1(3-600), 3-22-94)
§ 84-56 Limitations on changing nonconforming uses.
Certain changes to nonconforming uses shall not be authorized by the board of adjustment and are identified below.
Changing to another nonconforming use.
No nonconforming use shall be changed to another nonconforming use which requires more off-street parking or loading spaces than the original nonconforming use unless additional off-street parking or loading spaces are provided so as to comply with the requirements of this chapter.
Maintenance of dwelling unit density.
The number of dwelling units in a nonconforming residential use shall not be increased so as to exceed the number of dwelling units existing on the effective date of this chapter.
Changes occurring off-site.
No nonconforming use may be expanded or increased beyond the lot or tract upon which such nonconforming use is located as of the effective date of this chapter except to provide off-street loading or parking spaces upon approval of the board.
Other ordinances.
All nonconforming uses being expanded under the provisions of the ordinance shall comply with all other applicable provisions of this chapter.
(Ordinance 1133, § 1(3-700), 3-22-94)
§ 84-57 Termination of nonconforming structures.
The right to use and maintain a nonconforming structure shall cease whenever any of the following actions occur.
Damage or destruction.
In the event of damage or destruction of a nonconforming structure to the extent of 51 percent of the replacement cost, such structure may be rebuilt only after public hearing and favorable action by an affirmative vote of four members of the board.
Demolition.
Whenever a nonconforming structure is determined to be obsolete, dilapidated, or substandard by the board, the right to operate, occupy, or maintain such structure may be terminated by action of the board and such structure shall be demolished.
(Ordinance 1133, § 1(3-800), 3-22-94)
§ 84-58 Use of nonconforming structures.
Use, occupancy, remodeling and maintenance of nonconforming structures is hereby authorized subject to the following regulations.
Enlarging, remodeling and occupying.
Any nonconforming structure may be enlarged, remodeled, occupied, used and maintained in a state of good repair, but no nonconforming structure shall be enlarged or extended so as to increase the nonconformity with any of the provisions of this chapter.
Certificate of occupancy and compliance.
Where a nonconforming use is located in a structure which is nonconforming, the use may be changed to another conforming use by securing a certificate of occupancy and compliance.
(Ordinance 1133, § 1(3-900), 3-22-94)
§ 84-59 Amortization of nonconforming uses and structures.
The board, upon the request of the city or the owner of property upon which is located a nonconforming structure or use, shall initiate an action to bring about the discontinuance of the nonconforming use or the removal of a nonconforming structure, or both, by a date certain.
The board shall conduct a hearing for the purpose of determining a date certain for termination of the nonconforming use or removal of the nonconforming structure, or both, with respect to the property. If such action is initiated by the city, prior notice of such hearing shall be given to the property owner.
The date established for termination of the nonconforming use or removal of the nonconforming structure is to give the property owner an opportunity to recover its investment in the nonconforming structure or use from the time such property or structure became nonconforming.
The board shall measure the reasonableness of the opportunity for recoupment of the property owners investment by conditions existing at the time such use or structure became nonconforming.
The following factors must be considered by the board in determining a reasonable amortization period:
The owners capital investment in structures, fixed equipment, and other assets (excluding inventory and other assets that may be feasibly transferred to another site) made on the property before the time the use, the structure, or both, as applicable, became nonconforming. Costs of replacements, improvements or additions made after the structure or use became nonconforming shall not be included.
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.
Any return on investment since inception of the use, or construction of the structure, including net income and depreciation.
Recovery of investment, including net income and depreciation.
General character of the neighborhood in proximity to the nonconforming use or structure and the necessity for all property within the City of Euless to conform to the regulations of the unified development code of the City of Euless.
Once the board establishes a compliance date for a nonconforming use, the use must cease operations on or before that date and it may not operate thereafter unless it becomes a conforming use.
Once the board establishes a termination date for a nonconforming structure, the structure must be completely removed from the property by that date, by demolition or otherwise, and such structure may not be reconstructed or relocated in any other location in the city where it would not be in conformance with all provisions of the unified development code then in effect.
(Ordinance 1341, § I, 12-8-98; Ordinance 1440, § I, 8-8-00)