Granbury City Zoning Code
ARTICLE 3
Nonconformities
§ 3.1 Nonconforming Uses & Structures.
3.1.A
Nonconforming Status, Purpose and Intent
1.
A structure, lot of record, use of land or a structure, method or requirement for development, or other such use or structure that was lawful when commenced but which are contrary to the regulations set forth in the Zoning Ordinance because of amendments to the Zoning Ordinance, annexation into the City, or eminent domain. Such nonconformities are deemed to be incompatible with permitted uses and structures in the applicable zoning district and are contrary to the stated purposes of this Ordinance.
2.
With due regard for the property rights of the persons affected when considered in light of the public welfare and in view of protecting the use and enjoyment of adjacent conforming properties, it is the declared purpose of this section that nonconformities be eliminated and be required to conform to the regulations in this Ordinance.
3.
Notwithstanding the above, such nonconformities may be continued subject to the conditions and limitations set forth in this Ordinance.
3.1.B
Nonconforming Lots of Record
Buildings or other structures may be erected on a nonconforming single lot of record, provided such lot has access from a street in accordance with the subdivision ordinance or other applicable ordinances. This provision shall apply even though such lot fails to meet the minimum requirements for area, width, depth, or other requirements for lots set forth in the applicable zoning district regulations; however, all other provisions of the applicable zoning district regulations shall apply. Any building or structure constructed on a nonconforming lot of record shall meet all development regulations in the zoning district unless the Zoning Board of Adjustment grants a variance(s). No building or structure shall be constructed on multiple lots. Whenever construction is desired on multiple lots, the property owner or the property owner's agent shall replat the property into a single lot.
3.1.C
Nonconforming Uses of Land
A person using a property in a manner considered to be a nonconforming use as a result of the adoption of or change to a zoning regulation or boundary (classification) may continue to use the property in the same manner unless required by the City to stop the nonconforming use of the property, in accordance with Texas Local Government Code (TLGC) 211.019 as amended. A nonconforming use of land may be continued so long as it remains otherwise lawful, subject to the following provisions;
1.
Alteration in Size of Nonconforming Use.
No nonconforming use of land shall be enlarged, increased, or extended to occupy a greater area of land than was occupied at the time it became nonconforming, unless otherwise specified in this ordinance and Subsection 3.1.F.
2.
Moving a Nonconforming Use.
No such nonconforming use shall be moved, in whole or in part, to any portion of the same lot or parcel other than that occupied by such use at the time it became nonconforming.
3.
Exceptions.
A nonconforming use of land may be expanded or extended to provide off-street loading or off-street parking space facilities.
4.
Intensification of Nonconforming Use.
A nonconforming use of land may not be intensified from the date at which it became nonconforming, unless specified otherwise in this ordinance and Subsection 3.1.F. Evidence of the intensification of the use of the land includes, but is not limited to:
a.
Adding new building or structures or expanding existing buildings or structures on the land;
b.
Expanding the area of nonconformity by adding any equipment on the land;
c.
Adding impervious nonconforming cover on the land;
d.
Adding any physical or tangible nonconforming improvement to the land;
e.
Expanding the area of nonconformity by adding additional merchandise, vehicles or equipment for display on the land, or;
f.
Expanding the area of nonconformity by adding additional merchandise, vehicles or equipment for operation from, on or off of the land.
3.1.D
Nonconforming Uses of Structures
A nonconforming use of a structure is the use of a conforming building or structure by a nonconforming use. A person using a structure in a manner considered to be a nonconforming use as a result of the adoption of or change to a zoning regulation or boundary (classification) may continue to use the structure in the same manner unless required by the City to stop the nonconforming use of the property, in accordance with TLGC 211.019 as amended. A nonconforming use of a structure or building may be continued so long as it remains otherwise lawful, subject to the following provisions:
1.
Alteration in Size of Nonconforming Use of Structure.
A nonconforming use of a structure shall not be enlarged, extended, or altered and no occupancy of additional structure or land by a nonconforming use shall be permitted unless otherwise specified in this ordinance and Subsection 3.1.F.
2.
Moving a Nonconforming Use of Structure.
No such nonconforming use of a structure shall be moved, in whole or in part, to any portion of the same lot or parcel other than that occupied by such use at the time it became nonconforming.
3.
Exceptions.
A nonconforming use of a structure may be extended throughout any parts of the structure that were manifestly arranged or designed for such use at the time it became nonconforming, but only if:
a.
No structural alterations, except those required by law or ordinance, are made;
b.
No nonconforming use of the structure is extended to occupy any land outside the structure as it existed at the time it became nonconforming; and
c.
No additional dwelling units are added when the nonconforming use results from there being more dwelling units on the lot than is permissible in the district in which the structure is located.
3.1.E
Nonconforming Structures
A nonconforming structure or building that is used for a legal, conforming use, may continue to be utilized so long as it remains otherwise lawful, subject to the following provisions:
1.
Alteration in Size of Structure.
No such nonconforming structure may be enlarged, extended, reconstructed, repaired, or altered in a way that increases its nonconformity unless otherwise specified in this ordinance and Subsection 3.1.F, but any structure or portion thereof may be repaired or altered to decrease its nonconformity or to comply with city building codes;
2.
Moving a Nonconforming Structure.
Should a nonconforming structure be moved for any reason for any distance whatever, it shall thereafter conform to the regulations of the zoning district in which it is located after it is moved.
3.1.F
Additional Limitations and Provisions
1.
Change to a Conforming Structure or Use.
Any nonconformity may be changed to a conforming structure or use, and once such change is made, the structure or use shall not thereafter be changed back to a nonconforming structure or use.
2.
Accessory Structure or Use.
No nonconforming accessory structure or use shall continue after the principal structure or use shall have ceased or terminated unless the accessory structure or use shall thereafter conform to the provisions of the zoning district in which it is located.
3.
Structure or Use Already Permitted.
Nothing contained in this section shall require any change in the plans, construction, or designated use of a structure or use for which a building permit was lawfully issued no more than six months prior to the date the structure or use became nonconforming, provided, that such construction shall have been started at the time such structure or use became nonconforming and shall have been diligently prosecuted to completion.
4.
Expansion of Nonconforming Use or Structure upon Administrative Approval.
The Director of Community Development or their designee may permit a one-time expansion of a nonconforming use, use of structure or structure, not to exceed ten (10) percent of the (a) existing area of the use or structure or (b) value of the structure actually being occupied by the nonconformity, subject to the development regulations applicable in the zoning district, provided that no structures are constructed that are not allowed in the existing zoning district and provided the Board finds that the proposed use will be compatible with the surrounding area, will comport with the intent of the Comprehensive Plan, will not have a harmful effect on surrounding land uses, will not adversely affect the health, safety, and welfare of the citizens, and will not damage surrounding property values or the character of surrounding neighborhoods. Appeal of the Director's decision to allow expansion of the nonconforming use shall be to the City Manager or their designee. Appeals of the City Manager decision shall be to the Board pursuant to Article 2, Subsections 2.1.C and 2.1.H.
5.
Expansion of Nonconforming Use or Structure upon Approval of ZBA.
The Zoning Board of Adjustment may permit a one-time expansion of a nonconforming use not to exceed fifty (50) percent of the (a) existing area of the use or structure, or (b) value of the structure actually being occupied by the nonconformity, subject to the development regulations applicable in the zoning district, provided that no structures are constructed that are not allowed in the existing zoning district and provided the Board finds that the proposed use will be compatible with the surrounding area, will comport with the intent of the Comprehensive Plan, will not have a harmful effect on surrounding land uses, will not adversely affect the health, safety, and welfare of the citizens, and will not damage surrounding property values or the character of surrounding neighborhoods. Requests for expansion in excess of this amount will require a rezoning application to a district that allows the existing nonconformity, with notice to the adjacent property owners.
6.
Change to Other Nonconforming Use upon Approval of ZBA.
The Zoning Board of Adjustment may permit a nonconforming use to be changed to another nonconforming use permitted in the same zoning district as the existing nonconforming use, or in a more restricted zoning district, provided that no structures are constructed that are not allowed in the existing zoning district and provided the Board finds that the proposed use will be compatible with the surrounding area, will comport with the intent of the Comprehensive Plan, will not have a harmful effect on surrounding land uses, will not adversely affect the health, safety, and welfare of the citizens, and will not damage surrounding property values or the character of surrounding neighborhoods. If a nonconforming use is changed upon approval of the Board, it shall not thereafter be changed back to the previous nonconforming use or another nonconforming use except upon approval of the Board.
7.
Special Exception Structure or Use.
Any structure or use that is permitted as a special exception by the Zoning Board of Adjustment shall, upon its establishment, be considered a conforming structure or use in that district, provided that this regulation shall not be so interpreted as to waive any conditions placed on the special exception by the Zoning Board of Adjustment.
3.1.G
Destruction of Nonconformity
1.
If a nonconformity is destroyed, damaged or deteriorated to the extent that the cost to reconstruct or rebuild such nonconformity exceeds 50 percent of its replacement cost, the nonconformity may not be reconstructed or rebuilt except to conform with the provisions of this Ordinance.
2.
Notwithstanding Subsection 1, above, the Zoning Board of Adjustment may, after a public hearing, authorize reconstruction or rebuilding when the destruction, damage, or deterioration amounts to fifty percent or more of the replacement cost of the structure at the time of destruction, damage, or deterioration. The Board shall consider, among other factors, the owner's property rights and the effect of such nonconformity on surrounding properties.
3.
If the owner of a nonconformity fails to begin reconstruction of the damaged, destroyed, or deteriorated structure (when permitted to do so by the terms of this section) within one year of the date of destruction, damage, or deterioration, or approval by the Zoning Board of Adjustment, the nonconformity shall be deemed to be discontinued or abandoned as provided in Section 3.1.H, below.
4.
Notwithstanding anything herein to the contrary, a nonconforming single-family residence which is damaged, destroyed, or deteriorated shall be permitted to be reconstructed without the approval of the Zoning Board of Adjustment regardless of the extent of damage, destruction, or deterioration, provided that the construction complies with all current building codes and is commenced within six-months after the date of damage, destruction, or deterioration. The failure of the owner to start such reconstruction within one year shall forfeit the owner's right to restore or reconstruct the dwelling except in conformance with this Ordinance.
3.1.H
Discontinuance or Abandonment
A nonconformity, when discontinued or abandoned, shall not be resumed and any further use shall be in conformity with the provisions of this Section. Discontinuance or abandonment shall be defined when:
1.
The owner or occupant ceases to use the nonconformity in the same bona fide manner as previously used for six consecutive months. Evidence that a nonconformity is discontinued or not used in the same bona fide manner may include, without limitation, the following:
a.
The structure becomes vacant and there is no effort to sell or lease the premises;
b.
The use changes or is moved from the premises;
c.
The equipment and furnishings are removed from the premises;
d.
Utility service to the premises is terminated;
e.
The ownership or occupancy changes;
f.
The owner or occupant expresses an intent, through actions or statements, to discontinue or change the use; or
g.
The premises are dilapidated, substandard or not maintained in a suitable condition for occupancy.
2.
The owner or occupant of a nonconformity that is only on a seasonal basis ceases to use the nonconformity in the same bona fide manner as previously used during the season in which it is customarily used.
3.
A nonconformity is replaced with or reconstructed to become a conforming use or structure.
4.
Upon evidence of hardship, the Zoning Board of Adjustment shall have the power to extend the time limits in subsection 1, above.
5.
The Director of Community Development or their designee, upon written request filed before expiration of the six consecutive month abandonment time frame in Subsection 1 above or any extensions approved by the Board, may grant an extension of up to 180 days if substantial progress has been made on obtaining financing, leasing or purchasing the property, preparation of construction plans or documents or obtaining approvals or permits outside the control of the City to recontinue the nonconforming use. Appeal of the Director's decision to grant or deny an extension shall be to the City Manager or their designee. Appeals of the City Manager decision shall be to the Board pursuant to Article 2, Subsections 2.1.C and 2.1.H.
6.
When a nonconformity is abandoned or discontinued, all nonconforming rights shall cease, and the nonconformity shall thereafter conform to this Ordinance.
3.1.I
Registration of Nonconformity
The owner or occupant of the nonconformity shall register the nonconformity with the Director of Community Development or their designee within three months after the time it becomes nonconforming. Registration shall be confirmed by the issuance of a "Certificate of Occupancy - Nonconforming," by the Chief Building Official in accordance with Section 1.10.G.2, which shall state specifically how the nonconformity was created, whether it was a use, use of a structure or a structure that became nonconforming and how it does not comply with the provisions of this Ordinance or other applicable ordinances. Failure to register such nonconformity or to receive a Certificate of Occupancy-Nonconforming within three months after the nonconformity arises shall be presumptive evidence that the nonconformity is illegal and in violation of this Ordinance. Documentation of nonconformity may be provided after the three-month time limit to the Director of Community Development or their designee who shall make a determination of whether the nonconforming use, use of structure or structure was conforming to the zoning ordinance prior to the text or classification change, or the date of annexation and therefore considered nonconforming. Appeal of the Director's decision of nonconformity shall be to the City Manager or their designee. Appeals of the City Manager decision shall be to the Board pursuant to Article 2, Subsections 2.1.C and 2.1.H.
3.1.J
Requirement to Stop or Discontinue a Nonconforming Use, Compensation for or Amortization
1.
A requirement imposed by the City to stop a nonconforming use of a property under this section includes:
a.
an official action by the City Council or a board, commission, department, or official of the City; or
b.
a determination by the City that a nonconforming use has an adverse effect or other necessary determination that a City must make before imposing a requirement to stop a nonconforming use under applicable law.
2.
The City Council may request that the Zoning Board of Adjustment establish a compliance date to stop or discontinue a nonconformity in accordance with this Section and TLGC 211.019 as amended.
3.
In determining whether to initiate an amortization proceeding, the Zoning Board of Adjustment may consider the character of the surrounding area, the degree of incompatibility of the nonconformity to the zoning district in which it is located, the effect or adverse impact of the nonconformity on the surrounding area, the effect of cessation of the nonconformity on the area, any other danger or nuisance to the public caused by the nonconformity, and any other factors the Board considers relevant. If the Board determines that there is no public necessity for establishing a compliance date, the Board shall request that the City Council initiate rezoning of the property to bring the nonconformity into compliance with applicable zoning regulations.
4.
Written notice of the hearing shall be mailed to the owner of the use and the owner of the property at least 30 days before the hearing.
5.
The compliance date for discontinuance of a nonconformity shall be prescribed by the Board at a public hearing, after hearing testimony from the owner, the operator, neighboring property owners, community organizations and other interested parties.
6.
Not later than the 10th day after the date a municipality imposes a requirement to stop a nonconforming use of a property under this section, the municipality shall give written notice by certified mail to each owner or lessee of the property, as indicated by the most recently approved municipal tax roll, who is required to stop a nonconforming use of the property of the requirement and of the remedies which an owner or lessee of the property is entitled to under this Subsection 3.1.J, Requirement to Stop or Discontinue a Nonconforming Use, Compensation for or Amortization. Notice shall be sent to each owner of real or business personal property where the proposed nonconforming use is located and also sent addressed to each occupant or to "occupant" at the tax roll address (situs) of the property.
7.
If the Board of Adjustments requires a property owner or lessee to stop the nonconforming use of a property, land or structure, in accordance with TLGC Section 211.019 as amended, the owner or lessee of the property is entitled to:
a.
payment from the City in an amount equal to the sum of:
(1)
the costs incurred by the owner or lessee of the property that are directly attributable to ceasing the nonconforming use of the property, including expenses related to demolition, relocation, termination of a lease, or discharge of a mortgage; and
(2)
an amount equal to the greater of, as determined by the City, the diminution in the market value of the property, computed by subtracting the current market value of the property after the imposition of a requirement to stop the nonconforming use of the property from:
a.
the market value of the property on the day before the date the notice was given under Subsection 2.3.B.3, Notice of Public Hearing of New Nonconforming [Land] Use, in accordance with TLGC Section 211.006(a-1) as amended; or
b.
continued nonconforming use of the property until the owner or lessee recovers the amount determined under Subsection 3.1.J.7.a.(2) through the owner or lessee's continued business activities according to generally accepted accounting principles.
c.
in this section, "market value" means the price the sale of the property would bring in an arms-length transaction when offered for sale by one who wishes, but is not obliged, to sell and when bought by one who is under no necessity of buying it, in accordance with TLGC 211.019 as amended.
8.
The owner or lessee of a property that is subject to a requirement to stop a nonconforming use of the property under this section shall not later than the 30th day after the date the City gives the notice required by Subsection 3.1.J.4 respond in writing to the City indicating the remedy under Subsection 3.1.J.6 chosen by the owner or lessee. In the event of a conflict in the choice of remedy by the owner and a lessee of the property, the owner's choice of remedy shall control. In the event of a conflict in the choice of remedy by the owners of a property that has more than one owner, the choice of remedy made by an owner or owners holding the greater ownership interest in the property shall control. If the City does not receive timely notice from an owner or lessee, the City may choose the remedy provided under this section.
9.
A person receiving a payment under Subsection 3.1.J.7.a must stop the nonconforming use not later than the 10th day after the date of the payment.
10.
A person who continues the nonconforming use under Subsection 3.1.J.7.b must stop the nonconforming use immediately on the recovery of the amount determined under Subsection 3.1.J.6.a.(2) [Subsection 3.1.J.7.a.(2)].
11.
If more than one person seeks a payment from the City under Subsection 3.1.J.7.b, the City shall apportion the payment between each person based on the market value of the person's interest in the property. A person may appeal the apportionment in the manner provided by this section.
12.
A person entitled to a remedy under this section may appeal a determination under Section 3.1.J, Requirement to Stop or Discontinue a Nonconforming Use, Compensation for or Amortization, to the Board of Adjustment not later than the 20th day after the date the determination is made. At the hearing before the Board of Adjustment, the City has the burden of proof to establish the correctness of its determination.
13.
A municipality or a person aggrieved by the final decision of the Board of Adjustment may seek judicial review of the decision by filing suit as provided by TLGC 211.011 not later than the 20th day after the date the final decision is made. The court shall review the decision in the manner provided by TLGC 211.011 and TLGC 211.019.
14.
A person seeking to continue a nonconforming use under Subsection 3.1.J.7.b who appeals the decision of the City or Board of Adjustment may continue to use the property in the same manner pending the appeal unless an official of the body that made the decision shows cause to stay the nonconforming use by certifying in writing to the Board of Adjustment or court with jurisdiction over the appeal facts supporting the official's opinion that continued nonconforming use of the property would cause imminent peril to life or property. On a showing of cause the Board of Adjustment or court with jurisdiction over the appeal may, after notice to the official, grant a restraining order to stay continued nonconforming use of the property.
15.
If the Board of Adjustment or court with jurisdiction over an appeal determines that an owner or lessee is entitled to a payment under this section in an amount different than the amount determined the Board of Adjustment shall order, as applicable:
a.
additional payment to the owner or lessee; or
b.
the owner or lessee to reimburse the City; or
c.
an amount of time to operate the nonconforming use that is different than the amount of time initially received under Subsection 3.1.J.7.b, the Board of Adjustment or court shall order the City to allow an owner or lessee to continue the nonconforming use for additional or less time.
16.
An owner or lessee may waive the rights and remedies provided by this section by providing to the City a written waiver.
17.
This section does not apply to a nonconforming use that has been intentionally abandoned for at least six months.
(Ordinance 16-65 adopted 12/6/16; Ordinance 17-24, ex. A, adopted 4/18/17; Ordinance 17-41, ex. A, adopted 7/18/17; Ordinance 17-42, ex. A, adopted 7/18/17; Ordinance 18-15, ex. A, adopted 2/6/18; Ordinance 18-31, ex. A, adopted 5/1/18; Ordinance 18-50, ex. A, adopted 8/7/18; Ordinance 19-09 adopted 2/5/19; Ordinance 19-63 adopted 9/3/19; Ordinance 19-86 adopted 12/3/19; Ordinance 19-87 adopted 12/3/19; Ordinance 20-26 adopted 5/5/20; Ordinance 20-60 adopted 11/3/20; Ordinance 21-38 adopted 5/4/21; Ordinance 21-39 adopted 5/4/21; Ordinance 23-50 adopted 8/1/2023)