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Magnolia City Zoning Code

CHAPTER 9

Nonconformities

Sec. 9-1-1.01 Purpose
This Chapter regulates nonconforming uses, buildings or structures, lots, and signs.

  1. The purpose of this Chapter is to:
    1. Ensure that nonconforming uses, buildings or structures, lots and signs do not expand in size or duration;
    2. Protect conforming uses from nuisances; and
    3. Eliminate substantially damaged or abandoned nonconforming uses, structures, and signs.
  2. This Chapter provides standards that classify nonconformities by the degree of conflict, annoyance, incompatibility, or hazard to surrounding properties. The purpose of these standards is to eliminate nuisances and nonconformities whose degrees of incompatibility with adjacent lands uses are high, and to curtail substantial investment in nonconforming uses and structures that are contrary to the intent of this Code. Where the incompatibility is minor, the purpose is to mitigate and establish standards for the property’s continued use.
  3. 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, or lot nonconformity against the degree and impact of nonconformity and the landowner’s rights.

(Ord. No. O-2017-028, 11/14/2017) 

Effective on: 11/14/2017

Sec. 9-1-2.01 Nonconformities
  • General Types of Legal Nonconformity. There are four general types of legal nonconformities within this Code.
    1. Nonconforming Uses. The following uses are legally nonconforming uses:
      1. Uses that were lawfully established but are not currently listed as permitted or conditional uses; and
      2. Uses that were lawfully established within a floodplain or floodway, but are no longer permitted in the floodplain or floodway.
    2. Nonconforming Buildings or Structures. The following are legally nonconforming buildings or structures:
      1. Buildings or structures that fail to meet the density, intensity, setback, bufferyard, height, parking, or bulk requirements of this Code; and
      2. Buildings or structures that were lawfully established within a floodplain or floodway, but are no longer permitted due to their location or elevation within the floodplain or floodway.
    3. Nonconforming Lots. A lawfully established lot, not held in common with any other lot, that does not meet the area or other dimensional standards of this Code, is a legally nonconforming lot. Lots that are held in common, but which individually do not meet lot area or dimensional standards, are curable nonconformities. Where a landowner owns several nonconforming lots that abut each other, they shall be combined to create conforming lots or, if full conformity is not possible, they shall be combined to the extent that the combination increases the degree of conformity.
    4. Nonconforming Signs. Lawfully established signs that fail to meet the applicable requirements of Chapter 6, Signs and Lighting.
  • Unlawful Uses, Buildings, Structures, Signs, or Lots. A use, building, 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.

    • Effective on: 1/1/1901

    Sec. 9-1-2.02 Major and Minor Nonconforming Uses, Buildings, and Structures
    Nonconforming uses and nonconforming buildings or structures, lots and signs are classified as major or minor, as follows:

    1. Major Nonconformities. Major nonconformities are those for which the nonconformity generates a nuisance per se or represents such incompatibility with adjacent uses and/or the Comprehensive Plan that they should be eliminated.
    2. Minor Nonconformities. All nonconforming uses, buildings or structures, lots and signs that are not classified as major nonconformities are minor nonconformities.

    (Ord. No. O-2017-028, 11/14/2017) 

    Effective on: 11/14/2017

    Sec. 9-1-2.03 Nonconforming Buildings and Uses in the Floodplain
    Existing buildings or uses in the floodplain that do not conform to the standards in Article 5-3, Floodplain Management and Flood Damage Prevention, and Article 5-4, Storm Water Management, regarding floodplains and floodways are nonconforming. Such uses or structures are susceptible to flood damage, and the City may incur substantial costs should such flood damage occur. Therefore, elimination of the nonconformity or correction of violations are a priority. The following standards apply:

    1. Damaged Buildings. In general, building permits for substantial repair of flood damage (this is, repairs with a value equal to 50 percent or more the value of the building or structure sought to be repaired) within special flood hazard areas are subject to the standards in Section 5-3-2.03, Special Flood Hazard Standards.
    2. Substantial Repairs. Building permits shall not be issued for substantial repair of flood damage in the following circumstances:
      1. If the standards of Section 5-3-2.03, Special Flood Hazard Standards, cannot be met, the building or structure cannot be built and its use shall be discontinued. The City will work with Federal and other local agencies to assist in relocation.
      2. Buildings, except manufactured homes, that are located on parcels on which it is feasible to relocate the building out of the floodplain. However, if it is not feasible to relocate the building, building permits may be issued only if the work includes elevating or floodproofing the building as provided in Section 5-3-2.03, Special Flood Hazard Standards.
      3. Manufactured homes that are damaged or moved from their foundations by floodwaters, except that manufactured homes may be replaced by new manufactured homes according to the applicable standards set out in Section 5-3-2.03, Special Flood Hazard Standards.
      4. Manufactured homes that are damaged by flooding such that the cost of repair is more than 30 percent of the value of the building shall be relocated out of the special flood hazard zone when practicable. If it is not practicable to move the manufacture home, it shall either be:
        1. If located within Flood Zone A, A1-30, AH, or AE:
          1. Located where the difference in elevation between the site and street and the flood elevation is less than one foot; and
          2. The bottom of the structure is elevated at least one foot above the base flood elevation; or
        2. Brought into compliance with Section 5-3-2.03, Special Flood Hazard Standards.

    Effective on: 1/1/1901

    Sec. 9-1-3.01 Change or Conversion of Land Use
    A nonconforming use shall not be changed to any other nonconforming use unless mitigated in accordance with Division 9-1-4, Mitigation of Nonconforming Uses.

    Effective on: 1/1/1901

    Sec. 9-1-3.02 Abandonment or Discontinuance
  • Minor Nonconforming Uses. Whenever a minor nonconforming use is abandoned or discontinued for a period of 12 months, irrespective of the reasons and whether or not consecutive, such use shall not thereafter be re-established, and any future uses shall be in accordance with this Code.
  • Major Nonconforming Uses. Discontinuance of a major nonconforming use for a period of six consecutive months constitutes abandonment of the use, regardless of the owner’s intent, and the major nonconforming use shall not be thereafter re-established.
  • Signs. Whenever a nonconforming sign is abandoned or discontinued for a period of 60 days, irrespective of the reason or whether or not consecutive. At the end of the 60 days, the City may require any nonconforming sign use to cease permanently and/or the sign to be removed by the property owner.
  • Abandoned signs shall be subject to Abandonment as defined in Article 14-3 Definitions of this UDC, and for purpose of signs exclusively, shall be 60 days from the date of the action that caused the sign use to be considered abandoned. At the end of the 60 days, the City may require any nonconforming sign use to cease permanently and/or the sign to be removed by the property owner.

    • (Ord. No. O-2017-028, 11/14/2017) 

    Effective on: 11/14/2017

    Sec. 9-1-3.03 Alteration, Enlargement, or Extension
  • Repairs and Alterations.
    1. Normal maintenance of a nonconforming building or structure, or of a conforming building or structure containing a nonconforming use, is permitted, including necessary non-structural repairs and incidental alterations which do not extend or intensify the nonconforming uses or the life of the nonconforming structures.
    2. No structural alteration shall be made in any structure containing a nonconforming use, except in the following situations:
      1. When the alteration is required by law;
      2. When the alteration will result in eliminating the nonconforming use or structure; or
      3. When a building in a residential district containing residential nonconforming uses is altered in any way to improve livability, provided that no structural alterations are made that increase the number of dwelling units or the bulk of the building.
  • Nonconforming Uses.
    1. No structures containing a major nonconforming use shall be enlarged unless the major nonconforming use is permanently discontinued.
    2. No nonconforming use may be enlarged or extended in such a way as to occupy any required open space, landscaped area, or any land beyond the boundaries of the property or lot as it existed on the effective date of this Code. Nor shall a nonconforming use be expanded to displace any conforming uses in the same buildings or on the same parcel.
  • Nonconforming Lots. A lot which is nonconforming with respect to area, lot width, or frontage may be built upon if:
    1. The use is permitted in that district;
    2. The lot has at least 12 feet of frontage on a public street or approved private street; and
    3. All yards or height standards are complied with, except that the UDC may authorize a 10 percent reduction in the depth of required yards. Less than 10 percent may be ordered if the UDC finds that the reduction results in a building that would be larger than permitted on a conforming lot.
  • Nonconforming Buildings or Structures.
    1. Nonconforming buildings or structures shall not be altered or expanded in any manner unless building coverage and floor area remain within the limits permitted by this Code.
    2. No expansion shall increase the degree of nonconformity. For example, if a building is set back five feet from a property line and the Code requires eight feet, then no portion of an addition could come closer to the property line than the minimum required eight feet.
  • Nonconforming Signs.
    1. Nonconforming signs may not be enlarged, altered or changed in a way that increases their nonconformity or lifespan, but any structure or portion thereof may be altered to decrease its nonconformity.
    2. A nonconforming sign which has been damaged by fire, wind, or other cause in excess of 60 percent of its replacement cost shall not be restored except in conformance with the provisions of Chapter 6, Signs and Lighting.
    3. A nonconforming sign shall be property maintained so that such sign does not constitute a danger to the public health and welfare.
    4. Nonconforming signs become conforming upon conditional use approval.

    • (Ord. No. O-2017-028, 11/14/2017) 

    Effective on: 11/14/2017

    Sec. 9-1-4.01 Purpose
    Many nonconforming uses have existed for a period of time, and some may have only recently become nonconforming. In some instances, a nonconforming use is an integral part of the neighborhood’s character and function. One of the purposes of zoning regulations is to protect neighborhoods. Therefore, if the community is comfortable with a particular use or structure, the classification “nonconformity” and restriction on investment may not be with the community desires. Under such conditions, the use may be mitigated and made conforming to remove the stigma associated with the designation as a nonconformity. The provisions of this Division establish procedures for bringing a nonconformity into conformance.

    Effective on: 1/1/1901

    Sec. 9-1-4.02 Procedure
    An owner of a major or minor nonconforming uses, building, structure, or sign may apply for a conditional use permit which has the effect of making the nonconforming use, building, structure, or sign conforming. This procedure does not apply to nonconforming lots.

    Effective on: 1/1/1901

    Sec. 9-1-4.03 Criteria for Approval
    A nonconformity shall be approved as a conformity, if, in addition to the criteria for approval of a conditional use are demonstrated:

    1. Minimal Nonconformity. The use, as conducted and managed, has minimal nonconformities and has been integrated into the neighborhood’s function. Evaluation criteria include:
      1. The neighborhood residents regularly patronize or are employed at said use (for nonresidential uses).
      2. Management practices eliminate nuisances such as noise, light, waste materials, congested on-street parking, or similar conflicts. A history of complaints is justification for denying the conditional use permit unless the conditions of the permit will eliminate the nuisances.
      3. The use has been maintained in good condition or its classification as a nonconformity represents a disincentive for such maintenance.
    2. Conditions. Conditions may be imposed relative to the expansion of bufferyards, landscaping, 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.

    Effective on: 1/1/1901

    Sec. 9-1-4.04 Effect
    Granting a conditional use permit makes the use, building, or structure conform to the specifics of the conditional use approval, thereby eliminating the nonconformity. Conditional use approvals shall be provide to the applicant in writing and may be recorded by the applicant at the applicant’s expense.

    Effective on: 1/1/1901