Glenn Heights City Zoning Code
ARTICLE VI
NONCONFORMING CONDITIONS
§ 1 INTENT OF PROVISIONS.
VI.1.1
Within the districts established by this Ordinance or amendments thereto, there may exist lots, structures, uses of land and structures, and characteristics of use which were lawfully in existence and operating before this Ordinance was enacted, amended or otherwise made applicable to such lots, structures or uses, but which do not now conform to the regulations of the district in which they are located. It is the intent of this Ordinance to permit such nonconforming uses to continue, as long as the conditions with this Section and other applicable sections of the Ordinance are met.
VI.1.2
It is further the intent of this Ordinance that nonconforming uses and structures shall not be enlarged upon, expanded or extended, and shall not be used as a basis for adding other structures or uses prohibited elsewhere in the same district, except as may otherwise be provided in this Ordinance.
VI.1.3
Nonconforming uses are hereby declared to be incompatible with the permitted uses in the districts involved.
(Ordinance O-03-09 adopted 4/20/09)
§ 2 NONCONFORMING STATUS.
VI.2.1
A nonconforming status shall exist under the following provisions of this Ordinance:
A.
When a use, platted lot or structure which does not conform to the regulations prescribed in the district in which such use, platted lot or structure is located was in existence and lawfully operating prior to the adoption of this Ordinance and has been operating since, without discontinuance, providing that:
1.
Such use, platted lot or structure was in existence and lawfully constructed, located and operating in accordance with the provisions of the previous Zoning Ordinance or which was a nonconforming use thereunder, and which use or structure does not now conform to the regulations herein prescribed for the district in which the use or structure is located; or
2.
Such use, platted lot or structure was in existence at the time of annexation into the City, was a legal use of the land at such time, and has been in regular and continuous use since such time.
B.
Any other use, platted lot or structure which does not conform with the regulations of the zoning district in which it is located on the effective date of this Ordinance or any amendment hereto, and except as provided in Subsection C. below, shall be deemed to be in violation of this Ordinance, and the City shall be entitled to enforce fully the terms of this Ordinance with respect to such use, platted lot or structure.
C.
The following types of platted lots shall be deemed in conformance with the provisions of this Ordinance, notwithstanding the fact that such lot does not meet the standards of this Ordinance in the district in which it is located:
D.
A lot of record that is nonconforming may be occupied by a single-family dwelling provided that all appropriate zoning district regulations (i.e., height, setbacks, lot coverage, etc.) are met.
VI.2.2
Continuing Lawful Use of Land and Structures
A.
A nonconforming use or structure may continue to be used, operated or occupied in accordance with the terms of the zoning regulations by which it was established, or in the case of annexed property, in accordance with the regulations under which it was created.
B.
A nonconforming structure occupied by a nonconforming use may be re-occupied by a conforming use, following abandonment of the nonconforming use.
(Ordinance O-03-09 adopted 4/20/09)
§ 3 QUALIFICATIONS FOR EXPANSION OR RECONSTRUCTION OF NONCONFORMING USES AND STRUCTURES.
VI.3.1
A nonconforming use or structure may not be enlarged, expanded or increased to occupy a greater area of land than was occupied at the time the use or structure became nonconforming, except to provide off-street parking or loading areas as required by this Ordinance upon the recommendation of the Planning and Zoning Commission and approval of the City Council.
VI.3.2
A nonconforming use occupying a structure shall not be extended to occupy land outside the structure.
VI.3.3
A nonconforming use may be extended throughout the structure in which it is located, provided that:
A.
The structure or its premises shall not be enlarged or increased in height, in floor area or in land area to accommodate extension of the nonconforming use; and
B.
No alteration shall be made to the structure occupied by the nonconforming use, except those alterations that are required by law to preserve the integrity of the structure and alterations that would upgrade the quality, safety or aesthetic appeal of the structure; and
C.
The number of dwelling units or families occupying the structure shall not exceed the number of dwelling units or families existing at the time the use became nonconforming.
VI.3.4
Repairs and normal maintenance may be made to a nonconforming building provided that no structural alterations, expansions, or extensions shall be made except those required by law or ordinance, unless the building is changed to a conforming use.
VI.3.5
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.
VI.3.6
Where a conforming use is located in a nonconforming structure, the use may be changed to another conforming use by securing a Certificate of Occupancy from the Building Official, but shall not be changed to a nonconforming use.
VI.3.7
A nonconforming use located in a conforming or nonconforming structure shall not be changed to another nonconforming use.
VI.3.8
Any nonconforming use located in a conforming structure may be changed to a conforming use provided a new Certificate of Occupancy is secured from the City, and once such change is made, the use shall not thereafter be changed back to a nonconforming use.
VI.3.9
Whenever a nonconforming use is abandoned, all nonconforming rights shall cease and the use of the premises shall thenceforth be in conformity with this Ordinance. The intent of the user or owner to discontinue a nonconforming use for a period of six (6) months, coupled with a non-use of the nonconforming use for such period, shall be construed as conclusive proof of intent to abandon the nonconforming use. Any nonconforming use which, not involving a permanent type of structure, is moved from the premises shall be considered to have been abandoned.
VI.3.10
If a structure occupied by a nonconforming use is destroyed by fire, acts of God, neglect, or other cause, it may not be rebuilt except to conform to the provisions of this Ordinance. In the case of partial destruction of a nonconforming use not exceeding forty percent (40%) of its appraised value as determined by the appropriate county appraisal district, reconstruction will be permitted, but the size or function of the nonconforming use cannot be expanded.
VI.3.11
If more than forty percent (40%) of the total appraised value, as determined by the appropriate county appraisal district, of a nonconforming structure is destroyed by fire, the elements or some other cause, then the structure may be rebuilt only in conformity with the standards of this Ordinance.
VI.3.12
Provisions Applicable to Willow Run Addition.
Notwithstanding any of the foregoing, with regard to any parcel located within Willow Run Addition, a development of approximately 104 acres as shown more fully on the Zoning Map of the City of Glenn Heights, which was, prior to the passage and adoption of Ordinance 843-07, zoned “SF-1” (single-family 20,000 square foot lot size minimum) and had at that time a structure existing thereon, the owner(s) of such qualifying parcels may renovate, expand and rebuild a structure existing thereon at the time of passage of Ordinance 843-07, subject to the following provisions:
A.
The owner or owners of record of a qualifying parcel at the time of the passage of Ordinance 843-07 may expand a structure in existence thereon at the time of the passage of Ordinance 843-07 provided, however, that if the owner converts to retail use(s), owner shall not be allowed to revert to residential use thereafter.
B.
Upon the death of the owner(s) of a qualifying parcel or upon the sale or other transfer of the property by title, deed, or otherwise, the parcel may thereafter be used solely for retail/commercial uses.
C.
The owner or owners of record of a qualifying parcel at the time of the passage of Ordinance 843-07 shall have a period of one (1) year within which to rebuild if a structure on a qualifying parcel is destroyed. If no attempt to rebuild occurs or if rebuilding is not completed within that one (1) year period, the owner(s) may petition for an extension of that time period by submitting evidence to the City Council or the Zoning Board of Adjustment of a hardship encountered in the rebuild process.
D.
The rebuilding of any structure in existence at the time of passage of Ordinance 843-07 shall be nonconforming with the previous vested rights. The retail/commercial criteria will not be considered if this is done within 12 months; however rebuilding beyond a year shall be only with City Council and/or Zoning Board of Adjustment approval.
E.
All rules regarding nonconforming uses that are not in conflict with these provisions remain in effect.
(Ordinance O-03-09 adopted 4/20/09; Ordinance O-11-18 adopted 9/18/18)
§ 4 MOVING OF NONCONFORMING STRUCTURE.
No nonconforming structure or building shall be moved in whole or in part to any other location on the lot, or to any other location or lot, unless every portion of such structure is in compliance with all the regulations of the zoning district wherein the structure is to be relocated. Such building relocation shall also require a structure relocation permit from the City, and may also require platting of the intended building site pursuant to the City’s Subdivision Regulations as well as Site Plan approval per Article VIII, Section 13 of this Ordinance.
(Ordinance O-03-09 adopted 4/20/09)
§ 5 NONCONFORMING LOTS.
Nothing in this Ordinance shall be construed to prohibit the use of a lot that does not meet the minimum lot standards of the zoning district in which it is located, provided that the lot is zoned for the land use(s) intended and the lot was platted as a lot of record prior to the effective date of this Ordinance.
(Ordinance O-03-09 adopted 4/20/09)
§ 6 REGISTRATION, TERMINATION AND AMORTIZATION OF NONCONFORMING USES.
VI.6.1
Registration of Nonconforming Uses and Properties
A.
Nonconforming Uses and Properties must be registered with the City within six (6) months of the official action making such a use or property nonconforming. City staff shall make all reasonable and good faith efforts to notify property owners when the use or property becomes nonconforming through official city action. Property owners are responsible to know the legal status of the property over which such owner has care, custody or control. Property owners are responsible for such registration and failure of city staff to notify the owners of the nonconforming status of the property does not negate the registration requirement or the burden to so register upon the property owner.
1.
Failure to file the registration within the designated six (6) month time period, the nonconforming use lapses and the nonconforming use of the property must terminate. City staff shall maintain as a public record the Nonconforming Use Registry.
2.
Any nonconforming structure including a fence over legal height, obstruction, sign, junkyard and automobile salvage or storage yard, billboard, landfill, or fenced outdoor commercial or industrial storage area shall be removed after a period of five (5) years after the effective date of registration.
3.
The Board of Adjustment shall, after the five (5) year period has elapsed, provide notice and a hearing to the affected property owner and to all properties within 200 feet of the affected property. The purpose of the hearing is to determine whether an order of termination shall be issued.
4.
The Board of Adjustment may extend the amortization period at any time upon application of the affected property owner upon establishment that the amortization period deprives the owner of all or substantial economic use of the property as set forth in the procedures herein, including appeals of determinations of automatic termination due to the failure to register.
5.
The burden is on the party seeking to continue said use of the right to maintain the nonconforming use, such proof to include, but not be limited to the following:
a.
Prior existence of the use before the effective date of the change in regulations that render the use nonconforming;
b.
The use was lawful when established;
c.
The use has been lawfully continued from its inception.
Contradictory, insufficient or incomplete evidence may be the basis to sustain a denial of the right to maintain a nonconforming use.
B.
Termination/Amortization of Certain Nonconforming Uses.
1.
Determination of need for expedited compliance. The City Council, upon its own motion or upon the written request of any affected person, may discontinue a nonconforming use or structure. The City Council shall determine whether there is a public necessity for expedited compliance with the applicable zoning district regulations. The following factors shall be considered by the City Council in determining the public necessity for expedited compliance:
a.
the character of the surrounding neighborhood;
b.
the degree of incompatibility of the use or structure to the zoning district in which it is located; and
c.
the effect of the nonconforming use or structure on the surrounding area and the effect of its cessation on that area.
If the City Council finds that there is not a public necessity for expedited compliance with the zoning district regulations, it may choose to reevaluate the current zoning to determine if it is appropriate for the property on which the use or structure is located.
2.
Determination of Amortization Period.
a.
If the City Council passes a resolution under A(1) [B(1)] above for expedited compliance with the zoning district regulations, the Board of Adjustment shall, in accordance with these provisions and any order of the City Council, determine an amortization period for the nonconforming use 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.
b.
Notice of the hearing before the Board of Adjustment shall be given to the owner of the property as listed in the most recent property or deed records of the County in which the property is located and to all property owners within 200 feet of the affected property. Such notice shall be by certified mail, return receipt requested, by U.S. Postal Service signature delivery or personal service. If the certified mail is returned refused or unclaimed, notice shall be deemed delivered. The hearing shall be not less than thirty days after the date of notice of such hearing. A copy of Appendix A shall accompany the notice letter, or a listing of the factors to be considered by the Board of Adjustment. The notice shall also contain notice that the burden is on the property owner to bring forth sufficient evidence to establish the right to continue the nonconforming use and/or the factors to determine the amortization period.
c.
The following factors must be considered by the Board of Adjustment in determining the amortization period:
i.
The owner’s capital investment in structures, fixed equipment and other assets (excluding inventory and other assets feasibly transferred to another site) on the property before the time the use became nonconforming. The owner’s capital investment in property shall be calculated based upon the recoupment of the owner’s actual cost in such property, as opposed to the “full value,” “market value” or “replacement value.”
ii.
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 existing prior to the nonconforming status.
iii.
Any return on investment since inception of the use, including net income and depreciation.
iv.
The anticipated annual recovery of investment, including net income and depreciation.
d.
The amortization formula, a model of which is attached hereto as Appendix A, may consider past depreciation of the structures or the ability to move the structures to another location. The formula need not consider appreciation of land value, improvements or profit from an advantageous acquisition of the property.
e.
The Board of Adjustment may use the advice or services of City staff, or outside professionals if approved by the City Council, to calculate the amortization period.
f.
Evidence necessary for the determination of the amortization period shall be provided by the owner. The Board is authorized to compel the production of additional information and consider additional information in making its determination.
C.
City Council Action. Once the Board of Adjustment determines the amortization period for a nonconforming use, it shall submit such finding to the City Council, and upon notice to the owner and hearing, the City Council may:
1.
establish a compliance date for full amortization of the nonconforming structure; or
2.
order a compliance date which is prior to the full amortization of the investment and determine what compensation, if any, is appropriate; or
3.
modify or rescind its resolution for expedited compliance and issue orders consistent therewith.
D.
Compliance Requirement. If a compliance date for a nonconforming use is established by the City Council, the use shall cease operations on that date and it may not operate thereafter unless it becomes a conforming use. If the City Council establishes a compliance date for a nonconforming structure, the structure shall be demolished or made conforming by the compliance date. Any appeals of the decision of the City Council shall be to a court of competent jurisdiction.
APPENDIX A CAPITAL INVESTMENT TO BE AMORTIZED(1) | ||
PROPERTY ADDRESS: | ||
OWNER: | ||
DATE OF NONCONFORMITY: | ||
RECOMMENDED AMORTIZATION PERIOD: | ||
ESTIMATED DOLLAR AMOUNT | ||
A. | ESTIMATED CAPITAL INVESTMENT AT DATE OF NONCONFORMITY | |
1. | Investment in Structure | |
2. | Investment in Fixed equipment | |
3. | Other Assets(2) | |
TOTAL | ||
B. | LESS: RETURNS ON INVESTMENT TO DATE | |
1. | Net income | |
2. | Depreciation | |
TOTAL | ||
C. | PLUS: COSTS ASSOCIATED WITH TERMINATION OF USE | |
1. | Demolition Expenses | |
2. | Relocation/Moving Expenses | |
3. | Termination of Leases | |
4. | Discharge of Mortgages | |
TOTAL | ||
D. | TOTAL AMOUNT TO BE AMORTIZED | |
E. | AMOUNT OF INVESTMENT RECOUPED PER YEAR/MONTH | |
D ÷ (divided by) E = (equals) RECOMMENDED AMORTIZATION PERIOD | ||
1 | Adopted from Texas Zoning and Land Use Forms (1992) in part. |
2 | excluding inventory and other assets feasibly transferred to another site. |
(Ordinance O-03-09 adopted 4/20/09)
§ 7 RIGHT TO PROCEED.
Nothing contained in this Article VI is intended to alter any rights that may have accrued to proceed under prior regulations, pursuant to Texas Local Government Code Section 43.002, or Sections 245.001 to 245-00 [245.006].
(Ordinance O-03-09 adopted 4/20/09)