Intent of Provisions.

(1)

Existence of Nonconformities.

(a)

The purpose of this article XXIII is to establish provisions for the allowance and potential alteration of uses, lots and/or structures that do not conform to currently applicable standards or regulations but were in conformance with standards in place at the time of their inception and have been rendered nonconforming due to a change in the applicable standards and regulations.

(i)

Nonconformities occur in two general categories, or combinations thereof:

(A)

Nonconforming lots and structures as described in Section 2(1)(a) (Legal Nonconforming). For example, a nonconforming lot can be nonconforming as to lot area or dimension requirement; and, a nonconforming structure can be nonconforming as to setback, yard or height lot area or dimension requirement.

(B)

Nonconforming uses are uses as described in Section 2(1)(a) (Legal Nonconforming).

(ii)

It is the declared intent of this article XXIII that nonconforming uses and structures eventually be eliminated and be required to comply with the regulations of this Ordinance, having due regard for the property rights of the person affected, the public welfare and the character of the surrounding area.

(2)

Limit Incompatibility. It is further the intent of this article XXIII that nonconforming uses shall not be:

(a)

Enlarged upon,

(b)

Expanded or extended, or

(c)

Used as a basis for adding other structures or uses prohibited elsewhere in the same district.

(3)

Incompatible Uses. Notwithstanding anything to the contrary herein, nonconforming uses are hereby declared incompatible with the permitted uses in the districts involved.

Establishment of Legal Nonconforming Status.

(1)

Existence. For purposes of interpretation of this article XXIII, any uses, structures and/or lots that, in whole or part, are not in conformance with current zoning standards shall be considered as follows:

(a)

Legal Nonconforming. Those uses, structures or lots that in whole or part are not in conformance with current zoning standards but were legally established at a prior date at which time they were in conformance with applicable standards. Such uses, structures or lots may be maintained or potentially altered subject to the provisions of this article XXIII.

(b)

Illegal Status. Those uses, structures or lots that, in whole or part, are not in conformance with current zoning standards and were not in conformance with applicable standards at the time of their inception shall not be considered nonconforming, but shall be considered illegal uses, structures or lots and shall not be approved for any alteration or expansion, and shall undertake necessary remedial measures to reach conformance with current standards, or be discontinued.

(2)

Time of Adoption. Any use, platted lot and/or structure is a lawful use at the time of the adoption of any amendment to this Ordinance, but by such amendment is placed in a district wherein such use, platted lot and/or structure is not otherwise permitted shall be deemed legal nonconforming.

(3)

Annexation. If a use, platted lot and/or structure was in existence at the time of annexation to the Town of Hickory Creek, Texas, and has since been in regular and continuous use shall be deemed legal nonconforming.

Burden of Demonstration. The burden of establishing that any nonconformity is a legal nonconformity as defined in this article XXIII is borne by the owner or proponent of such nonconformity.

Continuing Lawful Use of Property and Existence of Structures.

(1)

Abandonment of Nonconforming Use. If a nonconforming use on a particular parcel of land shall cease operations for a period of more than six months, then such nonconforming use shall be deemed to be permanently abandoned. For the purpose of this paragraph, to "cease operations" means to intentionally terminate operations of the nonconforming use. Any nonconforming use that does not involve a permanent type of structure or operation and that is moved from the premises shall be considered to have been abandoned.

(2)

Prohibited Expansion or Reoccupation. A nonconforming use or structure shall not be expanded, reoccupied with another nonconforming use or increased as of the effective date of this Ordinance, except as provided in Section 6 (Expansion of Nonconforming Uses and Structures).

(3)

Single-Family Residential Uses.

(a)

Conforming single-family residential uses on platted lots approved prior to February 28, 2017, which may now be nonconforming due to stricter standards, shall be deemed in conformance with this Ordinance as long as the use of the lot is allowed in the respective district.

(b)

Only the lot size, depth, setbacks and width shall be allowed to be less than the regulations prescribed in the zoning district in which it is located. All other regulations of this Ordinance shall be met, or the lot shall be considered nonconforming.

(4)

Existing Platted Lots are Conforming Lots. Any existing vacant lot platted prior to February 28, 2017, that was legally conforming, shall be deemed a conforming lot.

Changing Uses and Nonconforming Rights.

(1)

Nonconforming Use to Conforming Use. Any nonconforming use may be changed to a conforming use, and once such change is made, the use shall not be changed back to a nonconforming use.

(2)

Nonconforming Use to another Nonconforming Use. A nonconforming use may not be changed to another nonconforming use.

(3)

Conforming Use in a Nonconforming Structure. Where a conforming use is located in a nonconforming structure, the use may be changed to another conforming use provided the following criteria are met:

(a)

Regardless of whether the land upon which the nonconforming structure is located has been previously platted, in any way, no conforming use may be operated within said nonconforming structure unless and until any and all dedications and conveyances (whether in fee simple, by easement or otherwise) are dedicated, conveyed and granted to the Town of Hickory Creek, Texas in accordance with Chapter 10 (Subdivision Ordinance Adopted), as amended, of the Town of Hickory Creek's Code of Ordinances, and in the form reasonably required by the Town of Hickory Creek;

(b)

Compliance with Article 3.100 [Article 3.02] (Construction Codes), as amended, of the Town of Hickory Creek's Code of Ordinances; and

(c)

Compliance with the process outlined in Section 6 (Expansion of Nonconforming Use and Structures).

NOTWITHSTANDING THE FOREGOING SECTION 5(3) (CONFORMING USE IN A NONCONFORMING STRUCTURE), CHAPTER 245, TEX. LOC. GOV'T CODE, AS AMENDED, ("CHAPTER 245") SHALL NOT APPLY TO THE REQUIREMENTS SET FORTH IN THIS SECTION 5(3). IF A CLAIM IS MADE AGAINST THE TOWN UNDER CHAPTER 245 WITH REGARD TO THIS SECTION 5(3), THE OPTION SET FORTH IN THIS SECTION 5(3) SHALL NOT APPLY AND/OR BE MADE AVAILABLE TO AN APPLICANT SEEKING RELIEF UNDER SECTION 5(3).

Expansion of Nonconforming Uses and Structures. An expansion of a nonconforming use or structure is allowed in accordance with the following.

(1)

Nonconforming Use Expansion in Existing Building. A nonconforming use located within a building may be extended throughout the existing building, provided:

(a)

No structural alteration may be made on or in the building except those required by law to preserve such building in a structurally sound condition.

(b)

The number of dwelling units or rooms in a nonconforming residential use shall not be increased so as to exceed the number of dwelling units or rooms existing at the time said use became a nonconforming use.

(2)

Nonconforming Use Prohibited from Expansion beyond Existing Building. A nonconforming use within a building shall not be extended to occupy any land outside the building.

(3)

Off-Street Loading and Parking. A nonconforming use of land or building shall not be enlarged, increased or extended to occupy a greater area of land than was occupied at the time the land or building became a nonconforming use, except to provide off-street loading or off-street parking space.

(4)

Residential Lot Exemption. The minimum residential lot areas for the various zoning districts shall be in accordance with their respective districts except that a lot having less area than herein required which was an official "lot of record" prior to February 28, 2017, may be used for a single-family dwelling.

(5)

Reuse of Abandoned or Vacant Buildings by Conforming Uses Allowed. Buildings or structures that have been vacant or abandoned for more than six months and do not meet the current area regulations or development standards shall be allowed to be re-occupied by a conforming use, provided the applicant complies with the requirements of Section 5(3) (Conforming Use in a Nonconforming Structure) and Section 6 (Expansion of Nonconforming Use and Structures).

Restoration of Nonconforming Structures.

(1)

Total Destruction. If a nonconforming structure is destroyed by fire, the elements or other cause, it may not be rebuilt except to conform to the provisions of this Ordinance.

(2)

Partial Destruction. In the case of partial destruction of a nonconforming structure not exceeding 51 percent of its total appraised value as determined by the Denton County Appraisal District, reconstruction will be permitted, but the existing square footage or function of the nonconforming structure cannot be expanded.

Movement of Nonconforming Structures.

(1)

Relocation of a Nonconforming Structure within a Platted Lot. Nonconforming structures may be relocated within the same platted lot.

(2)

Compliance. Nonconforming structures shall comply with all setback and screening requirements.

Completion of Structures. Nothing herein contained shall require any change in the plans, construction or designated use of the following.

(1)

Approved Building. A building or structure for which a building permit has been issued or a Site Plan approved prior to February 28, 2017.

(2)

Building in the Approval Process. A building or structure for which a complete application for a building permit was accepted by the Chief Building Official on or before the effective date of these regulations; provided, however, that such building permit shall comply with all applicable ordinances in effect on the date such application was filed.

Amortization of Nonconforming Uses.

(1)

Initiation of Compliance Case. Any person who resides or owns real property in the Town may request that the Town Council establish a compliance date for a nonconforming use. Additionally, the Town Council by its own initiation may institute proceeding to consider and establish a compliance date for a nonconforming use.

(2)

Public Hearing Process. Upon receiving a request under Section 10(1) (Initiation of Compliance Case), Town staff shall schedule the First Public Hearing before the Town Council.

(a)

First Public Hearing. The Town Council shall hold a public hearing to determine whether the continued operation of the nonconforming use will have an adverse effect on nearby properties; it shall schedule a second public hearing to establish a compliance date for the nonconforming use; otherwise, it shall not. In determining whether the continued use will have an adverse effect on nearby properties, the Town Council shall consider the following factors:

(i)

The character of the surrounding neighborhood.

(ii)

The degree of incompatibility of the use to the zoning district in which it is located.

(iii)

The manner in which the use is being conducted.

(iv)

The hours of operation of the use.

(v)

The extent to which continued operation of the use may threaten public health or safety.

(vi)

The environmental impact of the use's operations, including but not limited to the impacts of noise, glare, dust and odor.

(vii)

The extent to which public disturbances and nuisances may be created or perpetuated by continued operation of the use.

(viii)

The extent to which traffic or parking problems may be created or perpetuated by continued operation of the use.

(ix)

Any other factors relevant to the issue or whether continued operation of the use will adversely affect nearby properties.

(x)

Notwithstanding anything to the contrary herein, the Town Council cannot amortize a use described in Section 2(1) (Temporary Zoning Annexed Territory).

(b)

Second Public Hearing.

(i)

If the Town Council has determined at the first public hearing that the nonconforming use will have an adverse effect on nearby properties, it shall hold a second public hearing to establish a compliance date for the nonconforming use under a plan 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. The following factors must be considered by the Town Council in determining a reasonable amortization period:

(A)

The owner's capital investment in structures, fixed equipment and other assets (excluding inventory and other assets that may be feasibly transferred to another site) on the property before the time the use became nonconforming.

(B)

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.

(C)

Any return on investment since inception of the use, including net income and depreciation.

(D)

The anticipated annual recovery of investment, including net income and depreciation.

(E)

A reasonable wind-up period for the nonconforming use.

(ii)

If the Town Council, at the first public hearing, requests financial documentation and/or records from the owner relating to the factors listed directly above, the owner shall provide said documents and/or records at least 30 days before the second public hearing. If the owner does not provide said documentation and/or records, the Town Council is authorized to make its determination of a compliance date based upon any reasonably available public records, as well as public testimony at the hearing. Failure by owner to provide the requested financial documents and/or records shall not prevent the Town Council from setting a compliance date.

Ceasing Operations. if the Town Council establishes a compliance date for a nonconforming use, the use must cease operations on that date and it may not operate thereafter unless it becomes a conforming use.

Termination, Abandonment or Change in Ownership. When such nonconforming use is terminated, abandoned, or ownership is changed or transferred, all future users or new owners must obtain permission from appropriate governing bodies of the Town of Hickory Creek for continued or different nonconforming uses.

Definitions. For purposes of this article XXIII, "owner" means the owner of the nonconforming use at the time of the Town Council's determination of a compliance date for the nonconforming use.

Finality of Decisions.

(1)

Decisions that Cannot be Immediately Appealed. A decision by the Town Council that the continued operation of a nonconforming use will have an adverse effect on neighboring property, and the Town Council's decision to schedule a second public hearing to establish a compliance date is final and cannot be immediately appealed.

(2)

Decision to Deny a Request to Establish a Compliance Date. A decision by the Town Council to deny a request to establish a compliance date is final.

(3)

Decision Setting a Compliance Date. A decision by the Town Council setting a compliance date is final.

(Ord. 2017-03-759, 3/21/17)