Fulshear City Zoning Code
ARTICLE V
NONCONFORMITIES
§ 28-5-1 Purpose.
(a)
Purpose.
The purpose of this article is to:
(1)
Ensure that nonconforming uses do not expand;
(2)
Ensure the terms and conditions of existing development agreements do not result in nonconformities;
(3)
Protect conforming uses from nuisances;
(4)
Mitigate and establish standards for the property's continued use when nonconformity is minor; and
(5)
Eliminate substantially damaged, abandoned, or dangerous to public safety nonconforming uses, structures, site development elements, and signs.
(b)
Establishment of uses prior to effective date.
Uses and structures that were established prior to the effective date of this CDO shall be referred to as nonconforming when:
(1)
The established use does not comply with the use standards in the zoning districts in which such use is located; and
(2)
The building and/or structure that does not comply with the applicable property development standards of the zoning district in which the buildings and/or structures are located.
(c)
Standards.
This article provides standards that classify nonconformities by the degree of conflict, annoyance, incompatibility, or hazard to surrounding properties.
(d)
Reduction of nonconformities.
All nonconforming uses, buildings, structures, signs, or lots shall be encouraged to conform to this Code. Rules and procedures are established to balance the desire to eliminate the use, structure, sign, site development element, or lot nonconformity against the degree and impact of nonconformity and the landowner's rights.
(Ord. No. 2020-1331, 9-15-2020)
§ 28-5-2 Application.
(a)
Application.
This article shall apply to uses, structures, lots, site development elements, and signs that were lawfully constructed or established on a land site or in a structure before the effective date of this CDO.
(b)
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 division II-2, zoning districts, in which the structure is located.
(3)
Nonconforming site development elements.
The following site elements are nonconforming if lawfully established prior to this CDO but not conforming with the standards of article III, site development:
(4)
Nonconforming sign.
A lawfully established sign that fails to meet the applicable requirements of division III-4, signs, is a nonconforming sign.
(5)
Nonconforming lot.
A lot, not held in common with any other lot, that does not meet the area or other dimensional requirements established in article II, zoning districts.
(c)
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 that generate nuisances or represent such incompatibility with adjacent properties and/or the comprehensive plan that they should be eliminated.
(2)
Minor.
Minor nonconforming uses or structures are those not classified as major nonconformities.
(d)
Removal of nonconforming uses or nonconforming structures.
A nonconforming use, structure, site development element, 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.
(e)
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.
(Ord. No. 2020-1331, 9-15-2020)
§ 28-5-3 Uses.
(a)
Generally.
A nonconforming use is a use of land that was lawfully established (e.g., it was allowed and issued a permit, if a permit was required at the time the use was established) on a parcel or lot before the effective date of this CDO, that is no longer allowed after the effective date of this CDO. Amendments to this CDO may also make uses nonconforming. The following uses are legal nonconforming uses:
(1)
"Conditional uses" as listed in the zoning district standards established in division II-2, zoning districts, but were lawfully established without a conditional use permit. For these uses, the nonconforming use status may be removed by obtaining a conditional use permit set out in section 28-7-17, conditional use permits;
(2)
Do not meet the requirements of division II-3, use standards; and
(3)
Were lawfully established within a floodplain or floodway, but are no longer permitted in the floodplain or floodway.
(b)
Classifications of nonconforming uses.
There are two types of nonconforming uses: major nonconforming uses and minor nonconforming uses. The classification of the nonconforming use affects whether or not it can be converted to a conforming use.
(1)
Major nonconforming uses.
a.
Discontinuance.
Discontinuance of a major nonconforming use for a period of six 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 section 28-7-29 that makes the prior use conforming.
b.
Expansion, enlargement, or increases.
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 CDO or any amendment that made the use nonconforming.
c.
Structures.
No structures containing a major nonconforming use shall be enlarged unless the major nonconforming use is permanently discontinued.
(2)
Minor nonconforming uses.
a.
Discontinuance.
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 property owner converts the nonconforming use to a conforming use in accordance with division V-3, conversion of nonconformities, prior to the end of the 12-month period.
b.
Expansion and/or extension.
No minor nonconforming use shall be expanded or extended in such a way as to:
i.
Occupy any open space or landscaped area that is required by this CDO;
ii.
Exceed pervious cover, intensity, or height limitations of the zoning district in which the use is located;
iii.
Occupy any land beyond the boundaries of the property as it existed on the effective date of this CDO;
iv.
Displace any conforming use in the same building or on the same property; or
v.
Increase the area of floodplain (if present) that is directly impacted by the use.
c.
Nonconforming residential uses.
A nonconforming residential use shall not be expanded in scope or area, except that construction of an attached or freestanding private garage is allowed in accordance with the requirements of this CDO and the zone in which the use is located, including, but not limited to:
(Ord. No. 2020-1331, 9-15-2020)
§ 28-5-4 Structures.
(a)
Generally.
A building or structure is classified as nonconforming if it was lawfully constructed before the effective date of this CDO (or amendment hereto) and does not conform to the height, yard, pervious cover, density, intensity, building scale, or design standards that are applicable to the same type of building or structure in the zoning district in which the building or structure is located. 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, in whole or in part, be moved for any reason for any distance whatever, it shall thereafter conform to the regulations for the zoning district in which it is located after it is moved.
(3)
Minimum floor area.
A residential dwelling unit having a lesser floor area at the time of the passage of this CDO than the minimum floor area required for the district in which it is located shall not be construed to be nonconforming.
(b)
Repairs and alterations.
Routine maintenance, including necessary non-structural repairs, paint, finish, and incidental alterations to a nonconforming structure is allowed without having to bring the nonconformity into compliance.
(c)
Damage and reconstruction.
If a major or minor nonconforming structure is damaged, partially destroyed, or deemed to be unsafe the structure may be restored to its original dimensions provided that:
(1)
The original nonconformity is not enlarged, increased, or extended;
(2)
A building permit is obtained for repairs within six months of the date the building was damaged;
(3)
The construction is commenced within six months after obtaining the required building permits; and
(4)
The damage or destruction does not exceed 50 percent of the gross floor area (GFA) of a nonconforming structure or 50 percent of the replacement cost of the structure.
(d)
Existing nonconforming structures in a regulated floodplain or floodway.
It is the intent of the city that no permanent buildings or structures be located or substantially improved in a regulated floodplain or floodway and that existing nonconforming structures shall be removed upon abandonment. As such, a property with an abandoned nonconforming structure in a regulated floodplain or floodway shall not be eligible for any development review approval until the property owner removes the abandoned nonconforming structure.
(e)
Nonconforming density.
Buildings on lots with nonconforming density may be expanded or extended as may be allowed by this CDO, but such expansions or extensions shall not create additional dwelling units.
(Ord. No. 2020-1331, 9-15-2020)
§ 28-5-5 Lots.
(a)
Generally.
Nonconforming lots are lots that were lawfully created before the effective date of this CDO or amendments hereto which no longer complies with the lot width, lot area, or access requirements of this CDO.
(b)
Combination of lots to increase conformity.
(1)
Combination.
Where a property owner owns one or more lots abutting a nonconforming lot of record, 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 subsection (b)(1), above, if:
a.
The combination of lots would not address the nonconformity;
b.
The combination of lots would disrupt the lot pattern of the street, for example, by creating an internal through on a street segment that does not include any other through lots;
c.
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 CDO; or
d.
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.
(c)
Construction on nonconforming lots of record.
A nonconforming lot of record that cannot be combined with another lot in accordance with subsection (b) above may be built upon if, as of the effective date of this CDO:
(1)
The use is permitted in the zoning district in which the lot is located;
(2)
The lot has sufficient frontage on a public street to provide access that is appropriate for the proposed use; and
(3)
All setbacks and height requirements are met, except that the administrator may authorize a reduction of required setbacks of up to ten percent, provided that the 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.
(Ord. No. 2020-1331, 9-15-2020)
§ 28-5-6 Signs.
(a)
Generally.
Any permanent sign located within the city municipal limits or its ETJ on the effective date of this CDO that does not conform to the provisions of division III-4, signs, is a "legal nonconforming" sign, provided it also meets the following requirements:
(1)
Authorized by a sign permit prior to the effective date of this CDO; or
(b)
Standards.
(1)
Registration.
The owner or entity in control of the property on which a nonconforming sign is located shall be required to register such signs with the city, at no fee, and otherwise comply with all requirements of this CDO relating to nonconforming signs and sign structures.
(2)
Repairs and alterations.
Routine maintenance, including necessary non-structural repairs, paint, and incidental alterations to a nonconforming sign is allowed without having to bring the nonconformity into compliance.
(3)
Damage or destruction.
In the event that more than 50 percent of the area or 50 percent of the replacement cost of a lawfully existing nonconforming sign is damaged or changed, the sign shall be removed and made to conform or replaced with a conforming sign.
(4)
Danger to public safety.
A nonconforming sign that the building official determines to be a danger to public safety due to damage or wear shall be removed and shall not be replaced unless in accordance with division III-4, signs.
(5)
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 CDO.
(6)
Removal of sign.
When a nonconforming sign is removed for any reason other than routine repair and maintenance, the replacement sign must comply in all respects with the standards set out in this CDO.
(7)
Removal of nonconforming elements.
If an element of a sign that causes the sign to be nonconforming is removed, it shall not be replaced, except with a conforming element. For example, if a sign is nonconforming with respect to the items of information limitation, and a tenant panel is removed, then the new tenant panel shall be conforming with respect to its proportional share of items of information (e.g., if a five-panel directory sign has a total of 60 items of information, but only 20 are allowed, then when a single panel is replaced, the new panel may include up to four items of information).
(8)
New sign installation.
The installation of any new sign is prohibited on a site while a nonconforming sign remains in use.
(Ord. No. 2020-1331, 9-15-2020)
§ 28-5-7 Purpose.
The purpose of this section is to provide standards by which minor nonconforming uses (See section 28-5-2, application) can be made "conforming" through a public hearing process. In many instances, minor nonconforming uses are integral parts of the city's fabric, that is, its character and function, so their continuing existence promotes the city's policy objective of protecting its neighborhoods. In these instances, the classification "nonconformity" and resulting restriction on investment may not be what the community desires. As such, the use may be made conforming pursuant to this article in order to remove the potential stigma that may be associated with the "nonconforming" designation.
(Ord. No. 2020-1331, 9-15-2020)
§ 28-5-8 Criteria for approval.
(b)
Exclusions.
This procedure does not apply to nonconforming lots, which may be buildable in accordance with the standards for nonconforming lots set out in section 28-5-5, lots.
(c)
Criteria for approval.
A conditional use permit approval may be granted to make a nonconforming building, structure, or use conforming, if, in addition to the criteria for approval of a conditional use permit set out in section 28-7-17, conditional use permits, and section 28-2-16, conditional use standards, all of the criteria of this section are satisfied.
(1)
Approval criteria.
The use, as conducted and managed, has minimal nonconformities and has been integrated into the neighborhood's (or zoning district's if it is not in or adjacent to a residential neighborhood) function, as evidenced by the following demonstrations:
a.
The neighborhood residents regularly patronize or are employed at said use (for nonresidential uses in or abutting residential neighborhoods);
b.
Management practices eliminate nuisances such as noise, light, waste materials, unreasonably congested on-street parking, or similar conflicts;
c.
There is no material history of complaints about the use (a history of complaints is justification for denying the conditional use permit, unless the conditions of the permit will eliminate the sources of the complaints); or
d.
The use has been maintained in good condition and its classification as a nonconformity would be a disincentive for such maintenance.
(2)
Conditions.
The zoning board of adjustment (ZBA) may impose conditions relative to the expansion of bufferyards, landscaping and landscape areas, or other site design provisions, or other limitations necessary to ensure that, as a conforming use, the use will not become a nuisance. Such conditions may relate to the lot, buildings, structures, or operation of the use.
(Ord. No. 2020-1331, 9-15-2020)
§ 28-5-9 Effect of approval.
Uses that comply with the terms of a conditional use permit issued in accordance with this section are converted from "legally nonconforming uses" to "conforming uses" by virtue of the issuance of the permit.
(a)
Written approval.
Conditional use permit approvals shall be provided to the applicant in writing and may be recorded by the applicant at the applicant's expense.
(b)
Annotation of official zoning map.
Upon granting a conditional use permit and the applicant's demonstration of compliance with any conditions placed upon it, the administrator shall annotate the official zoning map indicating that the property has a conditional use permit, as well as the permit number and date of approval.
(Ord. No. 2020-1331, 9-15-2020)
§ 28-5-10 Abandonment.
(a)
Overcoming presumption of abandonment.
The presumption of abandonment may be rebutted upon a showing, to the satisfaction of the building official that during such period the owner of the land or structure has been:
(b)
Calculation of abandonment period.
Any period of such discontinuance caused by government actions, fire or natural calamities, and without any contributing fault by the nonconforming user, shall not be considered in calculating the length of discontinuance pursuant to this section.
(Ord. No. 2020-1331, 9-15-2020)
§ 28-5-11 Change of use.
(a)
Generally.
A nonconforming use shall not be changed to another nonconforming use unless the ZBA approves the conversion of a nonconforming use to a "legally conforming use" in accordance with division V-3, conversion of nonconformities.
(b)
Effect of change of use.
(1)
Presumption of discontinuing use.
A change of use from a nonconforming use to a conforming use shall create an irrebuttable presumption of the owner's intent to discontinue the nonconforming use. After the change in use, the nonconforming use shall not be resumed.
(2)
No reversion back to a nonconforming use. If a nonconforming use occupies a portion of a building or property and that portion is changed from a nonconforming use to a conforming use, then the use of that portion of the building or property shall not thereafter be changed back to the nonconforming use.
(Ord. No. 2020-1331, 9-15-2020)
§ 28-5-12 Compliance thresholds.
(a)
Purpose.
The purpose of this section is to encourage reinvestment in existing buildings and properties by reasonably mitigating the costs of retrofitting existing buildings and sites to achieve full compliance with this CDO. This section does not relate to building code compliance or compliance with applicable engineering standards.
(b)
Administrative compliance requirements.
Set out in table 28-5-12, administrative compliance requirements, are the levels of reinvestment in a property that trigger compliance with the regulations set out in this CDO.
Table 28-5-12 Administrative Compliance Requirements | ||
|---|---|---|
Type of Improvement | Definition of Improvement | Level of Compliance that is Required |
New development or redevelopment | 1. Development of vacant sites; 2. Expansion of a building by more than 70 percent of its gross floor area; and 3. Tear-down and reconstruction of a building (except re-establishment of a nonconforming use or building pursuant to § 28-5-10, Abandonment, Restoration, and Removal). | Full compliance with all provisions of this Code is required. Compliance with § 28-5-5, Lots, is sufficient with respect to lot dimensions. |
Major expansions | Expansion of a building by 30 percent to 70 percent of its gross floor area, or an increase in parking requirements of more than 20 percent, as set out in § 28-3-11, Computing Parking. | 1. Parking spaces and drive aisles shall be dimensioned, and loading spaces shall be provided, as required by § 28-3-11, Computing Parking. Parking spaces shall be provided according to the applicable regulations set out in § 28-3-15, Design and Use. 2. Landscaping improvements must further the objectives of Division III-3, Buffering, Landscaping, and Screening. 3. Bufferyards shall be provided as required by § 28-3-27, Bufferyards. 4. Improvements that are needed to ensure public safety and safe access and circulation are required. 5. Additions may match façade materials of the existing building. Building expansion that includes changes to existing building façades shall be designed according to the standards of Division III-1, Building and Site Design. 6. Major nonconforming uses shall be discontinued. |
Minor expansions | Expansion of a building by less than 30 percent of its gross floor area or an increase in parking requirements of 20 percent or less, as set out in § 28-3-11, Computing Parking. | 1. New parking spaces and drive aisles shall be dimensioned as required by § 28-3-15, Design and Use. if the new dimensions would not be detrimental to safe circulation when combined with the existing lot. 2. Major nonconforming uses shall be discontinued. 3. If height is increased by more than 20 percent within 50 feet of a district boundary line or if the expansion reduces the dimension between the building and a district boundary line, bufferyards shall be brought into compliance with § 28-3-27, Bufferyards. |
Façade and site improvements | Building or architecture changes or site improvements that do not involve expansion of the building or parking, but will change the physical character of the building or site beyond repair and maintenance. | 1. Buildings affected by the construction shall be designed according to the standards in Division III-1, Building and Site Design. 2. Landscaping improvements must further the objectives of Division III-3, Buffering, Landscaping, and Screening. Improvements affected by the proposed site improvements that are needed to ensure public safety and safe access and circulation are required. |
Parking lot improvements | Drainage, expansion, or reconstruction improvements, but not re-striping alone unless the re-striping according to the standards of § 28-3-15, Design and Use, results in a reduction of the area of the existing parking spaces by more than 10 percent. | 1. Parking spaces and drive aisles shall be dimensioned, and loading spaces shall be provided, as required by Division III-2, Parking, Loading, and Access. 2. Parking lot landscaping shall be provided as required by § 28-3-25, Landscape Requirements, even if it results in a reduction in the number of parking spaces, but only to the extent that the reduction does not result in a parking lot that contains less than 95 percent of the required parking spaces set out in § 28-3-11, Computing Parking |
(Ord. No. 2020-1331, 9-15-2020)