River Oaks City Zoning Code
SECTION 28
NONCONFORMITIES.
A.
PURPOSE AND INTENT.
A building, lot of record, use of land or a building, method or requirement for development, or other such use or structure may be lawful when commenced but contrary to the regulations set forth in the Zoning Ordinance at the time of its adoption or which become contrary to the regulations set forth in the Zoning Ordinance because of future amendments to the Zoning Ordinance, annexation into the City, or eminent domain. Such nonconforming uses, structures or yards 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 nonconforming use, structure or yard may be continued subject to the conditions and limitations set forth in this Ordinance.
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 board of adjustment grants a variance. No building or structure shall be constructed on multiple lots. Whenever construction is desired on multiple lots, the property owner shall replat the property into a single lot.
C.
NONCONFORMING USES OF LAND.
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.
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.
D.
NONCONFORMING STRUCTURES.
A nonconforming structure may be continued 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 except as provided for subsection H "single-family nonconforming uses, structures, or yards," 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.
E.
NONCONFORMING USES OF STRUCTURES.
A nonconforming use of a structure may be continued so long as it remains otherwise lawful, subject to the following provisions:
1.
Alteration in Size of Nonconforming Use of Building.
A nonconforming use of a building shall not be enlarged, extended, or altered and no occupancy of additional buildings or land by a nonconforming use shall be permitted.
2.
Moving a Nonconforming Use.
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 building 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 building 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 building is located.
F.
ADDITIONAL LIMITATIONS AND PROVISIONS.
1.
Change to a Conforming Structure or Use.
Any nonconforming use, structure or yard 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.
Except as otherwise provided herein, the board of adjustment may permit an expansion of a nonconforming use, structure or yard not to exceed 25 percent of the existing area of the use or structure actually being occupied by the nonconforming use, structure or yard, 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 or structure 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.
G.
DESTRUCTION OF NONCONFORMITY.
1.
If a nonconforming use, structure or yard 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 nonconforming use, structure or yard may not be reconstructed or rebuilt except to conform with the provisions of this Ordinance.
2.
Notwithstanding subsection G.1, above, the board of adjustment may, after a public hearing, authorize reconstruction or rebuilding when the destruction, damage, or deterioration amounts to 50 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 nonconforming use, structure or yard on surrounding properties.
3.
If the owner of a nonconforming use, structure or yard fails to begin reconstruction of the damaged, destroyed, or deteriorated structure (when permitted to do so by the terms of this section) within six months of the date of destruction, damage, or deterioration, or approval by the board of adjustment, the nonconformity shall be deemed to be discontinued or abandoned as provided in subsection H below.
H.
SINGLE-FAMILY NONCONFORMING USES, STRUCTURES, OR YARDS.
Any single-family use, structure or yard lawfully in existence upon the effective date of this Ordinance may be continued, subject to the following limitations:
1.
Expansion of Nonconforming Use.
The owner may expand a nonconforming use, structure or yard not to exceed 25 percent of the existing area of the use or structure actually being occupied by the nonconforming use, structure or yard, provided that the use, structure or yard, as expanded, meets the development regulations applicable in the "R-3" zoning district.
2.
Destruction of Nonconformity.
a.
If a nonconforming single-family use, structure or yard is destroyed, damaged or deteriorated, the nonconforming use, structure or yard may be reconstructed or rebuilt without the approval of the board of adjustment provided that:
b.
The failure of the owner to obtain a building permit and start such reconstruction within six months shall forfeit the owner's right to restore or reconstruct the dwelling except in conformance with this Ordinance.
3.
Transfer of Nonconforming Use.
A person may transfer a nonconforming single-family structure, yard, or use to a subsequent owner of the property.
4.
Abandonment of Nonconforming Use.
A nonconforming single-family residential use, shall not be construed as abandoned when its use is discontinued if its use is resumed by another person for a single-family residential use within six months.
I.
DISCONTINUANCE OR ABANDONMENT.
1.
A nonconforming use, structure or yard 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 as when:
a.
The owner or occupant ceases to use the nonconforming use, structure or yard in the same bona fide manner as previously used for four consecutive months, regardless of whether the owner intended or consented to the cessation of such nonconforming use, structure or yard. Evidence that a nonconforming use, structure or yard is not used in the same bona fide manner may include, without limitation, the following:
i.
The structure becomes vacant;
ii.
The use changes, is temporarily prohibited, or is moved from the premises;
iii.
The equipment and furnishings are removed from the premises;
iv.
Utility service to the premises is terminated;
v.
The ownership or occupancy changes;
vi.
The owner or occupant expresses an intent, through actions or statements, to discontinue or change the use; or
vii.
The premises are dilapidated, substandard or not maintained in a suitable condition for occupancy;
b.
The owner or occupant of a nonconforming use, structure or yard that is used only on a seasonal basis ceases to use the nonconforming use, structure or yard in the same bona fide manner as previously used during the season in which it is customarily used; or
c.
A nonconforming use, structure or yard is replaced with or reconstructed to become a conforming use or structure.
2.
Upon evidence of hardship, the board of adjustment shall have the power to extend the time limits in subsection I.1 above.
3.
When a nonconforming use, structure or yard is abandoned or discontinued, all nonconforming rights shall cease and the nonconformity shall thereafter conform to this Ordinance.
J.
REGISTRATION OF NONCONFORMITY.
The owner or occupant of a nonconforming use, structure or yard shall register the nonconformity with the Building Official within twelve months after the time it becomes nonconforming or after the date of adoption of this Ordinance, whichever date is later. Registration shall be confirmed by the issuance of a "certificate of occupancy - nonconforming," which shall state specifically how the nonconforming use, structure or yard was created and how it does not comply with the provisions of this Ordinance or other applicable ordinances. Failure to make such application within twelve months after the nonconforming use, structure or yard arises shall be presumptive evidence that the nonconforming use, structure and yard is illegal and in violation of this Ordinance. If after presentation of evidence to the zoning administrator, the zoning administrator determines that the property owner has failed to prove that it is nonconforming, the property owner can appeal to the board of adjustment.
K.
AMORTIZATION.
1.
The city council may request that the board of adjustment establish a compliance date for discontinuance of a nonconforming use, structure or yard in accordance with this section.
2.
In determining whether to initiate an amortization proceeding, the board of adjustment may consider the character of the surrounding area, the degree of incompatibility of the nonconforming use, structure or yard to the zoning district in which it is located, the effect of the nonconforming use, structure or yard on the surrounding area, the effect of cessation of the nonconforming use, structure or yard on the area, any other danger or nuisance to the public caused by the nonconforming use, structure or yard, 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 nonconforming use, structure or yard into compliance with applicable zoning regulations.
3.
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.
4.
The compliance date for discontinuance of a nonconforming use, structure or yard 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. In prescribing a reasonable amortization period for the nonconforming use, structure or yard to give the property owner an opportunity to recover his investment from the time the nonconforming use, structure or yard commenced, as allowed by law, the board shall consider the following factors:
a.
The owner's capital investment in structures, fixed equipment and other assets (excluding the land and any inventory and other assets that may be feasibly transferred to another site) on the property before the time the nonconformity commenced. Any such investment made after the nonconformity commenced shall not be included;
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 nonconforming use, structure or yard, including net income and depreciation;
d.
The anticipated annual recovery of investment, including net income and depreciation; and
e.
Any other factors allowed by law.
(Ordinance 1394-2023 adopted 11/28/2023)