A.

Purpose and scope. The purpose of this chapter is to regulate and limit the development and continued existence of legal uses, structures, lots, signs, and use characteristics such as parking and landscaping, established prior to the effective date of this Code or prior codes, or the effective date of future amendments to this Code, that no longer conform to the requirements of this Code. All such situations are collectively referred to in this chapter as "nonconformities." While nonconformities may continue, the provisions of this chapter are intended to curtail investment in nonconformities to bring about their eventual elimination in order to preserve the integrity of this Code and the goals of the City of Rowlett.

B.

Definition. A nonconformity shall include any lawful use of property or any lawful structure, sign, or platted lot, or any landscaping, parking, or building design element:

1.

That exists or existed on the date of the adoption of an ordinance that rendered it nonconforming with the provisions of the new ordinance or this Code; or

2.

That currently conforms to the regulations in this Code, but in the future will not conform to a future rezoning, or amendment to the text of this Code; or

3.

That currently conforms to the regulations in this Code, but because of future governmental action, such as the acquisition of property for a public purpose, will not conform to the provisions of the Code in effect at the time.

(Ord. No. 025-06, § 1(Exh. A), 6-6-2006)

A.

Authority to continue. Nonconformities may continue to be used and occupied, subject to regulations as to the maintenance of premises and conditions of operations set forth in this chapter, or unless such nonconformity is terminated as provided herein.

B.

Determination of nonconformity status. In all cases, the burden of proof for establishing the existence of a legal nonconformity shall be solely upon the owner of the nonconformity.

C.

Minor repairs and maintenance.

1.

Minor repairs or maintenance of nonconformities that are required to keep structures or sites in a safe condition are permitted, provided that the minor repair or maintenance does not increase the extent of nonconformity. For purposes of this section, "maintenance or minor repair" shall mean:

(a)

Repairs that are necessary to maintain and to correct any damage or deterioration to the structural soundness or interior appearance of a building or structure without expanding or altering the building or structure;

(b)

Maintenance of land areas to protect against health and environmental hazards and promote the safety of surrounding land uses;

(c)

Repairs that are required to remedy unsafe conditions that cause a threat to public safety; and

(d)

Repairs and maintenance of nonconforming signs otherwise permitted by this Code.

2.

In addition, any existing occupied single-family residential dwelling that is deemed to be a nonconforming use shall be allowed to make improvements to the main and accessory structures so long as improvements do not increase the degree of nonconformity or increase the height or footprint.

D.

Change of tenancy or ownership. Changes of ownership, tenancy, or management of property with an existing nonconformity are permitted but such nonconformities shall continue to be subject to the provisions of this Code.

E.

Damage or destruction.

1.

If a nonconforming structure is damaged or destroyed by any means to an extent where the replacement cost is greater than 50 percent of its appraised value at the time of damage or destruction as determined by the latest tax rolls, then such nonconformity shall not be re-established and such structure may only be rebuilt in compliance with the requirements of this Code except upon action by the board of adjustment to permit reconstruction of such structure and continuance of the nonconforming use. The board of adjustment shall have due regard for the rights of the person or persons affected, and shall consider such in regard to public welfare, character of the area surrounding, nature of the use in relation to the intent of the area, and the conservation, preservation and protection of property.

2.

Any existing single-family or two-family residential dwelling that is a nonconforming use that is destroyed to an extent where the replacement cost is less than 50 percent of its appraised value at the time of damage or destruction as determined by the latest tax rolls, due to fire, flood, or acts of nature or God, shall be allowed to rebuild on site, provided that the use is either for single-family or two-family residential use and in conformance with the prevailing zoning district.

3.

The intentional destruction of a structure by any owner of the use and/or structure and/or property shall immediately terminate all nonconforming rights, and all use of the structure or property shall cease and desist.

F.

Abandonment of use. If a nonconforming use, structure or property is discontinued for a period exceeding 180 days, such use, structure or property shall be discontinued. Any future use of the property or structure shall conform to the terms of this Code. At a hearing on the matter, the board of adjustment may consider evidence by the owner that there was a clear intent not to abandon the use, structure or property even though the use, structure or property was discontinued for 180 days or more. If no such evidence is presented, the board may presume the intent to abandon the nonconforming use, structure or property. The owner shall have ten days following the decision by the board of adjustment to terminate the nonconforming use, structure or property. If a nonconforming use, structure or property is discontinued for a period of 180 days or more, and the space previously occupied is vacant of merchandise or other items needed to conduct the business, or where all activities have ceased during this period, the board of adjustment may consider such as an abandonment of the nonconforming use, structure or property.

G.

Disputes. Any dispute regarding nonconforming uses shall be referred to the board of adjustment for further review and action.

H.

Violation of City Codes or ordinances. The board of adjustment may determine that the right to operate a nonconforming use, structure, or property shall be immediately terminated upon a finding of a violation of any of the provisions of this ordinance or violation of any ordinance of the City of Rowlett with respect to such nonconforming use or property or structure.

1.

Violation of the nonconforming status regarding the use that will be subject to determination by the board of adjustment for termination of the nonconforming use shall include those actions or instances where, after the effective date of this ordinance, a use has expanded without approval by the city; where a use is operating without a certificate of occupancy issued by the city; where an activity is taking place that is not allowed in the zoning district; or

2.

Violation of the nonconforming status regarding the property that will be subject to determination by the board of adjustment for termination of the nonconforming use shall include those actions or instances where, after the effective date of this ordinance, landscaping is not installed as required, is removed and not replaced; where landscaping is not maintained in accordance to city standards; where the irrigation system is inoperable, where there are activities occurring on the property that are not allowed within the zoning district; where there are activities occurring on the property that have not received the proper permits; where required parking areas or spaces is being used for other than its intended use to accommodate employees and patrons; where parking lots, drives, access easements, curbs are not maintained to city standards; or

3.

Violation of the nonconforming status regarding the structure that will be subject to determination by the board of adjustment for termination of the nonconforming use shall include those actions or instances where, after the effective date of this ordinance, a certificate of occupancy has not been issued; where fire suppression systems are not in working order; where changes have or are occurring that affects the exterior appearance of the structure that has not received approval by the city; where there are violations to the city's sign regulations; where the structure has not been properly maintained as to create either a hazardous condition as determined by the building official, where deterioration of the interior or exterior of the structure creates a nuisance or negatively affects the image of the city, where work is performed within the structure by contractors not licensed by the City of Rowlett.

(Ord. No. 025-06, § 1(Exh. A), 6-6-2006; Ord. No. 015-11, § 3, 7-5-2011)

A.

Limitations on continuation of nonconforming uses of land or structures. Nonconforming uses of land or structures are subject to the following additional limitations:

1.

No nonconforming use of land shall be enlarged or increased or extended to occupy a greater area of land than was occupied at the effective date of adoption or amendment of the regulations that make the use nonconforming. Any nonconforming use on a lot or portion of a lot may be altered to decrease its nonconformity.

2.

No nonconforming use of land shall be moved in whole or in part to any portion of the lot or parcel other than that occupied by such use at the effective date of adoption or amendment of the regulations that make the use nonconforming.

3.

No existing structure devoted to a use not permitted by this Code in the district in which it is located shall be enlarged, extended, constructed, reconstructed, moved, or structurally altered except in changing the use of the structure to a use permitted in the district in which it is located and where such is in conformance with requirements of this Code regarding the use of property, exterior building materials, signs, landscaping, parking and other such issues.

4.

Any nonconforming use may be extended throughout any parts of a building that were manifestly arranged or designed for such use at the time of adoption or amendment of the applicable regulations, but no such use shall be extended to occupy any land outside such buildings.

5.

No additional structure not conforming to the requirements of this Code shall be erected in connection with the nonconforming use of land or structure.

B.

Change of use.

1.

A nonconforming use of a building may be changed to another nonconforming use, provided that (a) the new use creates no greater impacts on surrounding properties and is no more intensive than the use it replaces, and (b) no structural alterations to the building are required to accommodate such change, subject to paragraph 3., below. A nonconforming use that has been changed to a less nonconforming use pursuant to this subsection may not thereafter be changed back to a more nonconforming use.

2.

A nonconforming use, if changed to a conforming use, may not thereafter be changed back to any nonconforming use.

3.

[Reserved.]

C.

Amortization of nonconforming uses.

1.

Request to establish compliance date. The city council may request that the board of adjustment establish a compliance date for a nonconforming use. In addition, any person who resides or owns real property in the city may request that the board consider establishing a compliance date for a nonconforming use. Upon receiving such a request, the board shall hold a public hearing to determine whether continued operation of the nonconforming use will have an adverse effect on nearby properties or will be detrimental to the development of uses for the economic welfare of the City of Rowlett. If, based on the evidence presented at the public hearing, the board determines that continued operation of the use will have an adverse effect on nearby properties or will be detrimental to the development of uses for the economic welfare of the City of Rowlett, it shall proceed to establish a compliance date for the nonconforming use; otherwise, it shall not.

2.

Factors to be considered. The board shall consider the following factors when determining whether continued operation of the nonconforming use will have an adverse effect on nearby properties:

(a)

The character of the surrounding neighborhood.

(b)

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

(c)

The manner in which the use is being conducted.

(d)

The hours of operation of the use.

(e)

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

(f)

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

(g)

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

(h)

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

(i)

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

3.

Finality of decision. A decision by the board to grant a request to establish a compliance date is not a final decision and cannot be immediately appealed. A decision by the board to deny a request to establish a compliance date is final unless appealed to state court within ten days in accordance with Chapter 211 of the Local Government Code.

4.

Determination of amortization period.

(a)

If the board determines that continued operation of the nonconforming use will have an adverse effect on nearby properties or will be detrimental to the development of uses for the economic welfare of the City of Rowlett, it shall, in accordance with the law, provide 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.

(b)

The following factors must be considered by the board in determining a reasonable amortization period:

(1)

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.

(2)

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.

(3)

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

(4)

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

5.

Compliance requirement. If the board 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 within the requirements of this Code.

6.

Demolition required. If, in establishing a compliance date, demolition costs are included in an amortization schedule, such demolition shall occur by the property owner within 30 days following a decision by the board of adjustment. If within this period the property owner has not demolished the structure, the city may undertake a contract to have the structure demolished and a lien placed on the property to cover all costs. This provision may be waived by the director of planning if there is a letter of intent filed by the user or owner provided to the city within 30 days following a decision of the board of adjustment indicating intent to redevelop the property in conformance with City Codes. The user or owner shall have six months to submit development plans. Following approval of development plans, the owner shall begin construction within six months. If no activity occurs within the 30-day period following the board of adjustment decision, and/or construction has not begun within the six-month period following the issuance of a new building permit for a conforming structure, the city may undertake a contract to have the structure demolished and a lien placed on the property to cover all costs.

7.

[Definitions.] For purposes of this section, "owner" means the owner of the nonconforming use at the time of the board's determination of a compliance date for the nonconforming use. For the purpose of this section, "property" means the land and/or structure.

(Ord. No. 025-06, § 1(Exh. A), 6-6-2006; Ord. No. 012-08, § 27, 4-1-2008; Ord. No. 016-09, § 44, 6-2-2009)

Nonconforming uses of land or structures are subject to the following additional limitations:

A.

No nonconforming structure may be enlarged or altered in a way that increases its nonconformity, but any structure or portion of a structure may be altered to decrease its nonconformity. This subsection shall not be construed to allow the expansion of a nonconforming use within a conforming or nonconforming structure.

B.

Should a nonconforming structure be moved for any reason for any distance whatever, it shall thereafter conform to the regulations for the district in which it is located after it is moved.

C.

Any structure in which a nonconforming use is superseded by a permitted use shall thereafter conform to the use regulations for the district, and the nonconforming use may not thereafter be resumed.

(Ord. No. 025-06, § 1(Exh. A), 6-6-2006)

A.

In any residential district, notwithstanding limitations imposed by other provisions of this Code, a single-family dwelling and customary accessory buildings may be erected on any lot that is of record at the effective date of the original adoption or amendment of applicable regulations. This provision shall apply even if the lot fails to meet the requirements for the area or width, or both, that are applicable in the district. Setback and lot coverage requirements applicable to nonconforming lots of record shall be those of the zone with the largest lot area requirement within which the lot would be conforming.

B.

Where two or more adjacent nonconforming lots or parcels are held in common ownership, they will be considered a single lot for purposes of development review and approval. Treatment as a single lot for purposes of development review and approval shall not be thereafter affected by any subsequent resale or subdivision of all or a part of any such lots into separate ownership.

(Ord. No. 025-06, § 1(Exh. A), 6-6-2006)

A.

Termination. A nonconforming sign shall immediately lose its legal nonconforming status, and therefore shall be brought into conformance with this Code or removed, when any of the following occur:

1.

The size or shape of the sign or supporting structure is changed;

2.

The sign structure or supporting structure is altered. Alteration does not include ordinary repairs and/or maintenance;

3.

The nonconforming sign is accessory to a nonconforming use that has lost its nonconforming status;

4.

Structure(s) on the property on which the sign is located is subject to an application for a building permit for reconstruction, remodeling, expansion, or other improvements, and the value of the proposed improvements total more than 25 percent of the appraised value of the structure as determined by the latest tax rolls; or

5.

An approved application for a certificate of occupancy for a change of business is issued and a sign is associated with such occupancy. This subsection applies to on-premise advertising signs only.

6.

Portable signs shall have no lawful nonconforming rights or status.

B.

Maintenance of nonconforming signs. Nonconforming signs shall continue to be maintained in safe condition pursuant to the building regulations of the city.

C.

Alteration, relocation or replacement of nonconforming signs. A nonconforming sign shall not be structurally altered, relocated, or replaced unless it is brought into compliance with the provisions of this Code.

D.

Reconstruction of damaged sign. If a sign and/or its support are damaged to the extent where the repair costs exceed 50 percent of the replacement cost of the sign, the sign shall be removed or brought into compliance.

E.

Definition of a sign. For purposes of this section, a sign is defined as a structure that is intended for the placement of a message, regardless if a message is included on the sign.

(Ord. No. 025-06, § 1(Exh. A), 6-6-2006; Ord. No. 012-12, § 2, 5-15-2012)

If (a) an application is filed for a building permit or the for reconstruction, remodeling, expansion, or other improvements of a multi-family, commercial, industrial, or mixed-use structure, and (b) the value of the proposed improvements totals more than 25 percent of the appraised value of the structure as listed on the latest tax rolls, the applicant shall be required to address the following nonconformities prior to, or as part of the improvements authorized by, such building permit, unless the director of planning determines in writing that such nonconformities have no significant adverse impact on surrounding properties:

A.

Screening of mechanical equipment;

B.

Screening walls or fences (for parking, waste, or storage areas) ;

C.

Driveway surface materials;

D.

Landscaping;

E.

Parking; and

F.

Lighting.

(Ord. No. 025-06, § 1(Exh. A), 6-6-2006)

An illegal nonconformity exists when:

A.

A nonconforming structure is destroyed or substantially destroyed by an intentional act of the owner or an agent. If this occurs, the nonconforming structure shall lose its nonconforming status and thereafter shall be required to be in conformity with existing codes. If a nonconforming use was also in the structure, the nonconforming use and all site improvements shall lose their nonconforming status and be required thereafter to come into compliance with existing codes.

B.

A use, structure, or site improvement occurs without being lawfully authorized in accordance with the provisions of this Code. Such use and/or structure shall therefore cease all operations until such time that the required plans and/or permits are approved.

(Ord. No. 025-06, § 1(Exh. A), 6-6-2006)