Joshua City Zoning Code
ARTICLE 4
Nonconformities
§ 4.1 Nonconforming Lots, Uses & Structures.
4.1.1
PURPOSE AND INTENT.
A structure, lot of record, use of land, or other such use or structure that was lawful when commenced but which is contrary to the regulations set forth in this Ordinance because of amendments to this Ordinance, annexation into the City, or eminent domain shall be deemed a nonconforming use. 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. 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. Notwithstanding the above, such nonconformities may be continued subject to the conditions and limitations set forth in this Ordinance.
4.1.2
NONCONFORMING USES REGULATED.
Nonconforming uses are incompatible with permitted uses. Therefore, no nonconforming use of land or building, nonconforming lot or yard, or any nonconforming structure shall be enlarged, changed, altered, or repaired except in conformance with the regulations contained in this Ordinance.
4.1.3
NONCONFORMING LOTS OF RECORD.
All legally conforming platted lots and all legally constructed structures existing prior to the effective date of this ordinance shall be deemed to continue to be legally conforming as of the effective date of this ordinance. This provision shall apply even though such lot or structure fails to meet the minimum requirements for area, width, or both, as governed by the applicable area regulations for that particular zoning district; however, all other provisions of the applicable zoning district area regulations, such as setback distances, heights, and percent of lot coverage shall apply. Any change, alteration, or modification decreasing the area of any said lot or structure shall conform to these zoning regulations contained herein or be authorized by variance granted by the Zoning Board of Adjustment. Any use, lot, or structure which does not conform to the regulations of the zoning district in which it is located, is nonconforming when:
A.
The use, lot, or structure was in existence and lawfully operating on the date of the passage of this ordinance, and has since been in regular and continuous use; or
B.
The use, lot, or structure is lawful at the time of the adoption of any amendment to this ordinance, but because of the amendment, no longer complies with applicable regulations; or
C.
The use, lot, or structure had commenced at the time of annexation proceedings and has since been in regular and continuous use.
4.1.4
NONCONFORMING USES OF LAND.
If, at the effective date of this ordinance or amendment thereof, a lawful use of land exists which would not be permitted by the regulations imposed by this ordinance, the use may be continued so long as it remains otherwise lawful, provided:
A.
The nonconforming use shall not be enlarged or increased, nor extended to occupy a greater area of land than was occupied at the effective date of adoption or amendment of this ordinance.
B.
The nonconforming use shall not 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 effective date of adoption or amendment of this Ordinance.
C.
If any such nonconforming use of land is deemed to be abandoned or discontinued for any for a period of more than six (6) months, any subsequent use of such land shall conform to the regulations specified by this Ordinance for the district in which such land is located.
4.1.5
NONCONFORMING BUILDINGS AND STRUCTURES.
If a lawful building exists at the effective date of adoption of this ordinance or any amendment thereto that could not be built under the terms of this ordinance because of restrictions on area, lot coverage, height, yards, its location on the lot, or other requirements concerning the building, the building may be continued so long as it remains otherwise lawful, subject to the following provisions:
A.
No Enlargement.
A nonconforming building may not be enlarged or altered in a way which increases its nonconformity, but any building or portion thereof may be altered to decrease its nonconformity or to comply with the City building codes.
B.
Destruction.
Should a nonconforming building or nonconforming portion of a building be destroyed by any means to an extent of more than fifty (50) percent of its replacement cost (as determined at the time of destruction), or fifty (50) percent of the square footage of the building, it shall not be reconstructed except in conformity with the provisions of this ordinance, or when approved by the Zoning Board of Adjustment, after public hearing thereon. In the event the board conducts a hearing pursuant to this Section, the board must give due consideration of the property rights of persons affected, in light of public welfare and the character of the area surrounding the nonconforming building.
C.
Moving of Building.
Should a nonconforming building be moved for any reason for any distance whatever, it must thereafter conform to the regulations of the district in which it is located after it is moved.
D.
Nonconforming Structures in Residential Zones.
All structures located on parcels located in residential zoning districts, on the effective date of this ordinance shall be deemed to be conforming, unless the size of the structure is increased, in which event the minimum size of structure required by this Ordinance for the zoning district in which the structure is located shall apply.
E.
Completion of Building Under Construction.
A building under construction at the time of the passage of this ordinance, or any amendment to this ordinance, may be completed in accordance with its plans and designated use so long as it is completed within one year from the date of passage of this ordinance or from the date of the amendment to this ordinance.
4.1.6
NONCONFORMING USES OF BUILDINGS.
If lawful use of a building exists on the effective date of the adoption or amendment of this ordinance, that would not be allowed in a particular district under the terms of this ordinance, the lawful use may be continued so long as it remains otherwise lawful, subject to the following provisions:
A.
No Enlargement.
An existing building devoted to a use not permitted by this ordinance in the district in which it is located shall not be enlarged, extended, constructed, reconstructed, moved or structurally altered except in changing the use of the building to a use permitted in the district in which it is located, or to comply with the City building codes.
B.
Extension.
Any nonconforming use may be extended throughout any parts of a building which were manifestly arranged or designed for such use at the time of adoption or amendment of this ordinance, but no such use shall be extended to occupy any land outside such building.
C.
Change of Nonconforming Use.
If no structural alterations are made, except as required by the city’s building codes, a nonconforming use of a building, or building and premises may be changed to another nonconforming use provided that the Zoning Board of Adjustment shall find that the proposed use is equally appropriate or more appropriate to the district than the existing nonconforming use. In permitting such change, the Zoning Board of Adjustment may require the owner to comply with conditions to achieve the purposes of this ordinance.
D.
Use Superseded.
Any building in which a nonconforming use is superseded by a permitted use shall thereafter conform to the regulations for the district, and the nonconforming use may not thereafter be resumed.
E.
Status of Land If Building Demolished.
Where a nonconforming use status applies to a building and premises in combination, removal or destruction of the building shall eliminate the nonconforming status of the land. For purposes of this subsection, “destruction” is defined as damage to an extent of more than fifty (50) percent of the replacement cost at time of destruction.
4.1.7
REPAIRS AND MAINTENANCE.
A.
Repair.
On any nonconforming building or portion of a building containing a nonconforming use, work may be done in any period of twelve (12) consecutive months consisting of ordinary repairs, or the repair or replacement of nonbearing walls, fixtures, wiring or plumbing, in an amount not exceeding fifty (50) percent of the current replacement cost of the nonconforming building or nonconforming portion of the building, as the case may be, provided that the cubic content or area existing when the nonconforming building or portion thereof became nonconforming shall not be increased.
B.
Rebuilding.
If a nonconforming building or portion of a building containing a nonconforming use becomes physically unsafe or unlawful due to lack of repairs and maintenance, and is declared by any authorized city official to be unsafe or unlawful by reason of physical condition, it shall not thereafter be restored, repaired or rebuilt except in conformity with the regulations of the district in which it is located.
C.
Safety.
Nothing in this Ordinance shall be deemed to prevent the strengthening or restoring to a safe condition of any building or part thereof declared to be unsafe by any official charged with protecting the public safety, upon order of the Administrative Official.
4.1.8
NONCONFORMING USES DISCONTINUED.
A.
Requirements.
A nonconforming use of any building, structure or land which has been discontinued shall not thereafter be returned to any conforming use.
B.
Discontinuation.
A nonconforming use shall be considered discontinued when any of the following occur:
1.
It has been replaced with a conforming use;
2.
The nonconforming building or structure is or hereafter becomes vacant and remains unoccupied or out of use for a continuous period of 180 days, or the equipment and furnishings of the nonconforming use have been removed from the premises and have not been replaced within such 180-day period; or
3.
Land used for a nonconforming use has ceased to be used in a bona fide manner as a nonconforming use for 180 consecutive days; or
4.
The intention of the owner to permanently discontinue the use is apparent.
4.1.9
ABANDONMENT OF NONCONFORMING USE.
A.
Requirements.
A nonconforming use shall be considered to be legally abandoned when the following facts exist based upon the evidence available to the administrative official:
1.
The owner has expressed or demonstrated, in some manner, an intent to permanently discontinue the nonconforming use; and
2.
When land used for a nonconforming use ceases to be used in a bona fide manner for the nonconforming use for 180 consecutive days; or
3.
A structure designed or arranged for a nonconforming use shall cease to be used regardless of the intent of the owner, as a nonconforming use for a period of 180 consecutive days.
B.
Intent Not Required.
Legal abandonment shall be conclusively deemed to have occurred irrespective of the intent of the property owner if the nonconforming use was dilapidated, substandard, or was not maintained in a suitable condition for occupancy during the time periods set forth above.
4.1.10
CHANGES THAT LESSEN NONCONFORMITY.
The Board of Adjustment may grant a change to a more restrictive or less intensive nonconforming use that lessens the extent of the original nonconformity.
4.1.11
AMORTIZATION.
The City Council may request that the Zoning Board of Adjustment establish a compliance date for discontinuance of a nonconformity in accordance with this Section.
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 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 Zoning Board of Adjustment considers relevant. If the Zoning Board of Adjustment determines that there is no public necessity for establishing a compliance date, the Zoning Board of Adjustment shall notify the City Council of same.
The Zoning Board of Adjustment shall, in accordance with Section 211.019 of the Texas Local Government Code, as amended, utilize the procedures and owner or lessee compensation criteria contained in said Section in the event the City determines that a nonconforming use of property shall cease.
(Ordinance 782-2020 adopted 6/18/20; Ordinance 819-2021 adopted 8/19/21; Ordinance 874-2023 adopted 9/21/2023)