The purpose of this article is to establish rules to allow prior non-conformities ("PNCs") to continue (with certain exceptions) until they are removed or terminated, but not to encourage their survival. It is also the purpose of this article to prevent the enlargement, expansion or extension of PNCs and to limit the degree of nonconformity of PNCs.

As provided in Article 6, PNC status is an affirmative defense, so it is the burden of the person desiring PNC status to prove, for each non-conforming item: (i) PNC status has been acquired, and (ii) PNC status has not been lost.

(a)

General Rule. An item (defined below) acquires PNC status if: (i) the item was constructed or established in conformance with the zoning ordinance (as applicable at the time); and (ii) after construction or establishment, the item became non-conforming solely because the zoning ordinance was adopted or amended. The item acquires PNC status on the effective date of the ordinance making it nonconforming. Items which can acquire PNC status are:

(1)

A separately-existing building site.

(2)

A structure.

(3)

Some aspect, use or part of such a building site or structure.

(b)

Work under construction. For purposes of acquiring PNC status, any structure for which all necessary City construction permits have been applied for (by filing complete and effective plans, specifications, applications and all other required items, including fees) prior to a given effective date shall be treated the same as a structure constructed before the effective date, but only if: (i) the applications are eventually granted, and the permits are actually issued (before or after the effective date), and (ii) the structure is completed substantially in accordance with the same plans and specifications filed initially to obtain the permits, within the time allowed by those permits, including any extensions lawfully granted. The ZBA may grant a special exception to allow a partially-completed building to be treated the same as a building constructed before the effective date, but only if all of the building's significant structural elements, including the roof and all load-bearing members, were completed as of the effective date and the building is fully completed within five years thereafter.

(c)

Other committed work. For purposes of acquiring PNC status, any principal building constructed new or substantially remodeled after a given effective date shall be treated the same as a structure constructed before that effective date, if all of the following criteria are present:

(1)

Prior site acquisition. The person initially claiming PNC for the building ("applicant") must have acquired fee simple title to the entire building site for the building on or before the ninetieth day preceding the effective date in question.

(2)

Diligent progress to completion. The applicant must also make, or cause to be made, diligent progress toward the completion of the principal building. Such progress must include both of the following steps: (i) completion of the plans and specifications and the filing (by the applicant) of complete and effective applications for all necessary building permits incorporating such completed plans and specifications, on or before the ninetieth day following the given effective date; (ii) completion of the construction or remodeling substantially in accordance with the same plans and specifications filed initially to obtain the necessary City permits, within the time allowed by those permits, including any extensions lawfully granted.

In case of non-compliance with side yard regulations based on 10% of the building site width as stated in the "Yards" table adopted in December 1994: (A) the time to acquire the entire building site is extended through May 31, 1995, and (B) the time to file applications for permits is extended through September 29, 1995

(d)

Enlargement of building site and yard. A structure located in a yard (or "setback" area) in apparent violation of Tables 7A-2, 7B-2, 7C-2, 7D-2 acquires PNC status if: (i) after the 1987 effective date, the building site was enlarged in compliance with City ordinances, (ii) the enlargement of the building site also expanded the yard to include the structure, (iii) the structure was built before enlargement of the site, and (iv) the structure did not violate the yard (or "setback") regulations before the enlargement. The structure acquires PNC status only for non-compliance with Tables 7A-2, 7B-2, 7C-2, 7D-2.

(e)

Certain yard encroachments. A structure located in a yard (or "setback" area) in apparent violation of Tables 7A-2, 7B-2, 7C-2, 7D-2 acquires PNC status if the ZBA issues a special exception granting PNC status. The ZBA may only issue such a special exception if it makes all of the following special findings: (i) The encroachment was inadvertent and neither misrepresented to the City nor hidden from City officials. Exception: This finding is not required if the encroachment commenced before 1970. (ii) The encroachment will not cause a substantial adverse effect on other persons. (iii) The encroachment does not create a significant health or safety risk.

(Ord. No. 3066, § 11, 4-22-2024)

(a)

New principal building. If, after the 1987 effective date, a new principal building is constructed on a building site, PNC status is lost for all PNC items relating to the building site. Exceptions: (i) this does not apply to those principal buildings treated the same as structures constructed prior to a given effective date (see above); (ii) PNC status with respect to a building site dimension is not lost.

(b)

Conformance is achieved; discontinuation. If a PNC item is changed to conform to this ordinance for an indefinite period or for 180 days or more, PNC status is lost for that item. If a use of property is discontinued for 180 days or more (exclusive of time when actual construction work prevents the use), the use loses PNC status.

(c)

Loss to casualty, etc. If 51% or more of the replacement cost of a structure is lost to casualty, eminent domain, involuntary demolition or other similar cause, the structure loses PNC status.

Exceptions:

This does not apply to a building used for SFR purposes, except as to non-compliance with framed area regulations (i.e., in case of such a 51% or greater loss, PNC status for non-compliance with framed area regulations is lost). For this purpose, "replacement cost" is determined by standard cost levels for similar structures as most recently published by the International Code Council or similar agency. See, e.g., the ICC internet publication of "Building Valuation Data," which provides average construction costs per square foot, by type of construction and occupancy group, with factors to modify those costs for the Houston area. The ZBA may issue a special exception to allow such a structure to be rebuilt and retain PNC status, if the ZBA finds: (i) rebuilding is necessary to avoid substantial economic waste and economic hardship, and (ii) there will be no substantial adverse effects of the rebuilt structure.

The ZBA may issue a special exception to allow a structure in the TCC district, which predated adoption of the TCC district, to be rebuilt with a square footage that is substantially the same as existed at the time of loss to casualty, etc. The TCC district and its associated standards are intended, in part, to transform the physical form and character of the Town Center commercial area from its current auto-oriented nature to a design that is more safe, convenient and appealing for pedestrians and cyclists, as well as automobiles. It is recognized that this transformation will likely occur incrementally over time through new construction or rebuilding of existing structures following a loss to casualty, etc. Therefore, in evaluating special exception requests under this section, the ZBA shall generally aim to uphold the TCC district intent by requiring compliance with all other district standards. However, the ZBA may determine that some relief is warranted due to the circumstances of a particular building site, such as the impracticality of providing vehicular access to a rear parking area in the event that on-site parking along the Edloe Street frontage was to be relocated to the rear. In such cases the ZBA may apply an alternative level of compliance for the following TCC standards that is less than full compliance but also may be more restrictive than the condition that existed at the time of loss to casualty, etc.:

(1)

Front, side and rear yards (setbacks).

(2)

Location of the principal building on the site relative to the front or rear property lines.

(3)

Off-street parking.

Otherwise, such a structure loses PNC status and may be replaced only by a new structure that conforms to applicable TCC standards at the time of the new construction.

(d)

Violation of special conditions. If a PNC item was specially authorized by a zoning ordinance of the City or by a special exception, variance, permit or other authorization, and if the terms or conditions of the authorization are violated, the item loses PNC status.

(e)

Degree of nonconformity increased. A PNC item loses PNC status to the extent that the degree of nonconformity is increased (or to the extent that the non-conforming area is expanded).

Exceptions:

(1)

This provision does not apply to the initial work on those structures treated the same as structures in existence on a given effective date pursuant to the provisions of this Article (i.e., "work under construction" and "other committed work").

(2)

If a principal building in a SF District acquired PNC status on an effective date because of a non-conformity with a new side setback or side yard requirement on one side of the building site, the building does not lose its PNC status with respect to that specific nonconformity (on that same side of the building site) if the nonconformity is expanded or increased as a result of a remodeling project and the gross floor area of the principal building has not increased to 200 percent or more of its gross floor area on the given effective date. A principal building so remodeled has the same PNC status as the original building with respect to the side setback or yard requirement on the same side of the building site where the original nonconformity was located, but this does not apply to any new nonconformity (on the other side or elsewhere).

(3)

If the PNC item is a shortage in off-street parking spaces serving a building, PNC status is not lost by a change in the building if the increase in the number of required spaces resulting from the change is provided, on an incremental basis.

(f)

Garages. If the PNC item is non-compliance with garage regulations, PNC status is lost if: (i) an existing garage is removed, destroyed or converted to a non-garage use, or (ii) space is added to the principal building so that its gross floor area is increased to 200 percent or more of its gross floor area on the 1987 effective date.

(g)

Driveways. If the PNC item is noncompliance with driveway regulations in an SF district, PNC status is lost if:

(1)

A new driveway is constructed;

(2)

An existing driveway is either replaced or expanded; or

(3)

Space is added to the principal building so that its gross floor area is increased to 200 percent or more of its gross floor area on the 1987 effective date.

This subsection does not apply to noncompliance with minimum dimensions for a driveway (or maneuvering area) on a site with SFD use only.

(h)

Building site dimensions. If the PNC item is non-compliance with one or more of the required minimum dimensions of building sites (Example: minimum dimensions of 75 by 105 feet in the Old Building Site Overlay District), PNC status is not lost as to any dimension unless it is brought into compliance. Any such non-compliant building sites may be improved by any construction, reconstruction, expansion or other project otherwise lawful.

(i)

Passage of Time. The following PNC items lose PNC status upon the expiration of the time periods indicated:

(j)

Change in use. A nonconforming commercial use loses PNC status if changed to any other commercial use.

(Ord. No. 1770, 7-26-2004; Ord. No. 1873, § 1(ex. A), 4-28-2008; Ord. No. 1879, § 1(ex. A), 8-25-2008; Ord. No. 1939, § 1(ex. A), 2-28-2011; Ord. No. 2029, § 1(Att. A), 2-27-2017; Ord. No. 2030, § 1(Att. A), 2-27-2017; Ord. No. 3066, § 12, 4-22-2024)

The administrative official may issue a permit with a specific condition requiring that a PNC item be brought into compliance if: (i) the item has lost PNC status or will soon lose PNC status, (ii) substantial work is necessary to achieve compliance, and (iii) the person in control of the property demonstrates both the willingness and the ability to achieve compliance. It shall be an affirmative defense in any proceeding to enforce this ordinance with respect to the PNC item that: (i) such a permit was issued, and (ii) work to achieve compliance is prosecuted diligently.

The ZBA may issue a special exception to extend or reinstate PNC status for any item, upon application by the owner or someone with a substantial interest in the affected property, if the ZBA finds: (i) a substantial investment was reasonably made in the PNC item, or in reliance upon it, and (ii) extension of PNC status is necessary to allow a reasonable period in which to amortize the investment, or to avoid unreasonable waste of any remaining value of the item with PNC status. An extension may be for a fixed term or for an indefinite period. This section applies both to PNC items losing status by lapse of time and to PNC items losing status for other reasons. A special exception may allow the rebuilding, remodeling or modest enlargement of a structure which would otherwise lose PNC status and may allow the continuation of PNC status.

(a)

Generally. The ZBA may issue a special exception to grant PNC status for a structural item that did not conform to this ordinance when it was constructed or established, if the ZBA finds:

(1)

The nonconformance was clearly and specifically shown in plans and specifications duly submitted to obtain a city permit;

(2)

Before the work was done, neither the owner, the designer, the surveyor, the contractor nor any other person assisting with the work knew about the noncompliance;

(3)

The nonconformance was clearly covered by the city permit (the same permit for which the plans and specifications were submitted), and the permit was otherwise regularly issued;

(4)

After learning of the nonconformance, the owner promptly conferred with the administrative official (and voluntarily halted any further nonconforming work);

(5)

The item will neither constitute a health or safety hazard nor cause a significant impact upon another person or property; and

(6)

The item can be brought into conformance with this ordinance within the time period specified in the special exception, at a modest or reasonable cost.

Exception: Bringing the item into conformance need not be required if the ZBA finds that the impact of the item on other persons or properties is either nil or extremely small.

(b)

Time to comply; conditions. No such special exception is effective unless it specifies a time period within which the item must be brought into conformance with this ordinance (if required; see above). PNC status granted for a specified time period is lost when the specified time period expires or if ownership is sooner transferred (unless the new owner acknowledges both the special exception and the date the time period expires, by written instrument filed with the administrative official before the transfer). Any special exception issued under this section may contain conditions designed to:

(1)

Reduce nonconformance;

(2)

Mitigate (or compensate for) the effects of nonconformance;

(3)

Achieve conformance sooner than the specified time period; or

(4)

Any combination of the foregoing.

(c)

Scope of exception. For good cause shown, such a special exception may allow completion, minor modification and occupancy of the structural item without losing PNC status.

(Ord. No. 1883, § 1(ex. A), 11-10-2008)