It is the purpose of this article that nonconforming uses and
structures shall be eventually discontinued and the use of such premises
shall be required to conform to the regulations prescribed herein
having due regard for the investment in such nonconforming use.
Except as hereinafter provided, no nonconforming use of land
or building, nor any nonconforming structure shall be enlarged, changed,
altered, or repaired, except in conformity with the following regulations.
(Ordinance 1133, § 1(3-100), 3-22-94)
(a)
Nonconformity
of use.
Any use of land or building which does not conform
to the permitted use regulations prescribed in this chapter shall
be deemed to be a nonconforming use.
(b)
Nonconformity
of structure or building.
Any building or structure which
does not conform to the lot area, yard setback, impervious coverage,
height, parking, loading, screening, access or other site development
standards prescribed in this chapter shall be deemed to be a nonconforming
structure.
(Ordinance 1133, § 1(3-200), 3-22-94)
(a)
A nonconforming
status under the provisions of this chapter shall exist under the
following circumstances:
(1)
Pre-existing to chapter.
(A nonconformity shall exist)
when a use or structure which does not conform to the regulations
prescribed for the district in which such use or structure is located,
was in existence and lawfully constructed, located and operating on
the effective date of this chapter and has since been in regular and
continuous use.
(2)
Pre-existing at annexation.
(A nonconformity shall exist)
when a use or structure, which does not conform to the regulations
prescribed in the district in which such use or structure is located,
was in existence and lawfully constructed, located and operated at
the time of annexation to the city and has since been in regular and
continuous use.
(b)
Right-of-way
acquisition by governmental agency.
(1)
Definitions.
As used in this subsection, the following
terms shall have the respective meanings ascribed to them:
a.
Building
official shall mean the building official of the City of Euless, Texas
or his designee.
b.
City
manager shall mean the city manager of the City of Euless, Texas or
his designee.
c.
Damages
to the remainder shall mean the diminution or reduction of value of
the remainder property suffered as a result of the acquisition of
portion of a property for public right-of-way.
d.
Governmental
agency shall mean the United States of America, State of Texas, County
of Tarrant, City of Euless, or any other governmental agency with
the power to acquire property through the exercise of eminent domain
under federal or state laws.
e.
Right-of-way
acquisition shall mean the securing of right-of-way through negotiation,
purchase, bargain, trade, donation, eminent domain, or other means
but not including the dedication of right-of-way through the platting
or zoning processes.
(2)
Exemption from nonconforming status.
a.
Except
as otherwise provided in this section, in the event a right-of-way
acquisition by a governmental agency causes a property or its existing
improvements to be in violation of then existing development provisions
of this chapter, the city manager is authorized to exempt the property
from the provisions of this chapter to the extent the violation is
caused by the right-of-way acquisition, subject to the provisions
set forth in this section. Upon approval of such exemption, the property
shall be considered to be in conformity with the development regulations
of this chapter and shall not be subject to the provisions of this
article regarding registration, termination, changing or other limitations
on nonconforming uses.
b.
The
owner of property eligible for exemption under this subsection may
apply to the city manager for approval of an exemption. The city manager
may grant an exemption, in whole or in part, from the requirements
of otherwise applicable development regulations, after taking into
consideration the following factors:
1.
Whether the benefits to the public from exempting the property from
the development regulations outweigh any adverse effects that might
be caused by noncompliance with such regulations;
2.
Whether the exemption will cause the property to be inadequately
served by utilities, road access, drainage and other necessary supporting
facilities;
3.
Whether the location and arrangement of all public and private streets,
driveways, parking spaces, entrances and exits provide for a safe
and convenient movement of vehicular and pedestrian traffic without
adversely affecting the general public or the use of adjacent properties;
4.
Whether the approval of the exemption will impede the normal and
orderly development and improvement of neighboring vacant property;
5.
Whether the use of the property will be compatible with and not injurious
to the use and enjoyment of neighboring property, nor significantly
diminish or impair property values within the vicinity;
6.
Whether there is sufficient landscaping and screening to ensure harmony
and compatibility with adjacent properties;
7.
Whether the property remaining after the right-of-way acquisition
is reasonably configured to allow compliance with the applicable development
regulations that are not covered by the exemption;
8.
Whether the owner of the property has made reasonable efforts to
meet the development standards applicable to the property;
9.
Whether the cost to bring the property into compliance would be unreasonable
compared to the benefits that would be gained from doing so.
c.
In
approving an exemption under this subsection, the city manager may
place reasonable terms, conditions, or limitations on the exemption
as deemed necessary to protect the public health, safety or welfare
or that otherwise limit the adverse impact of the property. The city
manager may revoke an exemption if he determines that the property
fails or has ceased to be in compliance with any terms, conditions
or limitations that are placed on the exemption.
d.
In
granting an exemption under this subsection, the city manager may
authorize the relocation of existing signs that were in compliance
with city sign regulations prior to the acquisition of the right-of-way
but are required to be moved because of their location within the
acquired right-of-way. The city manager shall determine a location
on the property for the relocation of the signs that minimizes the
impact of the signs on traffic safety, aesthetics, and the use and
enjoyment of adjacent properties.
e.
Property
shall not be eligible for exemption under the following circumstances:
1.
Zoning change.
An exemption shall not be valid on property
that undergoes a zoning change initiated by the property owner subsequent
to the right-of-way acquisition; instead, the property shall have
a nonconforming status to the extent that any nonconformance with
city ordinances resulted from a right-of-way acquisition by a governmental
agency prior to the rezoning, and shall be treated as a nonconforming
use or structure pursuant to the provisions of this article. A zoning
change initiated by the city shall not cause property to lose the
exemption provided by this subsection.
2.
Compensation for noncompliance.
The exemption shall
not apply to property if the right-of-way acquisition is determined
to render the remainder of the property unusable pursuant to agreement
with the governmental agency or judicial determination, and the governmental
agency compensates the property owner for the damage to the remainder.
Where such compensation is provided, the property owner is responsible
for any curative measures necessary to bring the property into compliance
with the development regulations of this chapter.
3.
Safety hazard.
An exemption shall not be granted to
any development regulation if doing so would create a traffic safety
hazard or other life safety hazard on the property or adjacent thereto.
(c)
Process
to be followed if property is in noncompliance.
(1)
For
property in which an exemption is not granted, the city manager, building
official or other authorized city official is authorized to:
a.
Provide
notice to any affected property owner, lien holder, and/or certificate
of occupancy holder, listing any items of noncompliance;
b.
Revoke
a certificate of occupancy of any building or structure for noncompliance
with a code, ordinance, or regulation; and
c.
File
an affidavit in the county deed records noting the item(s) of noncompliance,
and that a certificate of occupancy shall not be reissued until such
noncompliance is cured. Once the property and its improvements are
brought into full compliance with all applicable ordinances of the
city, an affidavit shall be filed in the county deed records noting
such compliance.
Editor’s note–Ord. No. 1917, § 2, adopted June 28, 2011, changed the title of § 84-52 from Status of nonconformity to recognition of nonconformity.
(Ordinance 1133, § 1(3-300), 3-22-94; Ordinance 1917, § 2, 6-28-11)
The user or owner of all nonconforming uses of land or buildings
shall, within 18 months of the effective date of this chapter, register
such nonconforming use by obtaining from the city a certificate of
occupancy (nonconforming). Such certificate of occupancy (nonconforming)
shall be considered as evidence of the legal existence of a nonconforming
use as contrasted to an illegal use or violation of this chapter.
The city shall maintain a register of all certificates of occupancy
issued for nonconforming uses.
(Ordinance 1133, § 1(3-400), 3-22-94)
It is the intent of this chapter that nonconforming uses eventually
be discontinued having due regard for the investment. Conditions that
would require nonconforming uses to be terminated are provided below.
(1)
Remodeling
and enlarging.
A nonconforming use may be occupied, used
and maintained in good repair, but it shall not be remodeled or enlarged
except as hereinafter provided.
(2)
Right
to operate.
The right to operate a nonconforming use
shall cease and such use shall be terminated under any of the following
circumstances:
a.
Abandoned
use of structure.
Whenever a nonconforming use is abandoned,
all nonconforming rights shall cease and the use of the premises shall
henceforth be in conformance with this chapter. Abandonment shall
involve the intent of the user or owner to discontinue a nonconforming
operation and the actual act of discontinuance. Any nonconforming
use which is discontinued, or which remains vacant, for a period of
six months shall be considered abandoned.
b.
Violation
of provisions.
Whenever there is a violation of any of
the provisions of this chapter or violation of any ordinance of the
city with respect to a nonconforming use.
c.
Conformance
by rezoning.
Whenever a nonconforming use is changed
to a conforming use by rezoning so as to achieve compliance with the
provisions of a new or different zoning district.
d.
Conformance
by change of use.
Whenever a nonconforming use is changed
to a conforming use under the provisions of this chapter.
e.
Destroyed
or damaged structure.
Whenever the structure in which
a nonconforming use is housed, operated or maintained is destroyed
or damaged by fire or other causes to the extent of more than 51 percent
of the replacement cost of the structure, on the date of the damage,
the right to operate such nonconforming use shall terminate.
f.
Termination
by board.
Whenever the right to maintain or operate a
nonconforming use is terminated by the board in accordance with the
provisions of this chapter.
g.
Approval
of specific use permit.
Any use which is permitted as a specific use permit by the city council in accordance with the provisions of this chapter shall, upon its establishment, be considered a conforming use in that zoning district and shall not thereafter be changed back to a nonconforming use, provided that this regulation shall not be so interpreted as to waive any conditions placed on the specific use permit by the city council. Whenever a specified term for a specific use permit has expired, the use shall not be deemed to be a nonconforming use and the property may only be used for a use permitted in the applicable zoning district unless an extension of the term of the specific use permit is approved by the city council. If a specific use permit is revoked in accordance with section 84-157, the use shall not be deemed to be a nonconforming use and the property may only be used for a use permitted in the applicable zoning district.
(Ordinance 1133, § 1(3-500), 3-22-94; Ordinance 2128, § 1, 8-16-16)
Changes from nonconforming uses to conforming uses may be approved
administratively, however, changes that do not eliminate nonconforming
uses shall be considered by the board of adjustments and may be authorized
only upon the board’s finding that the change conforms to the
intent of this chapter and is in the public’s interest.
(1)
Changing
to conform.
Any nonconforming use may be changed to a
conforming use and once such change is made, the use shall not thereafter
be changed back to a nonconforming use.
(2)
Granting
of change.
The board may grant a change of use from one
nonconforming use to another nonconforming use provided such changes
are to a use permitted in a zoning district where the original nonconforming
use would be permitted or provided that such change is to a use permitted
in a more restrictive classification. However, such change of use
and occupancy shall not tend to prolong the life of a nonconforming
use. Upon review of the facts, the board may establish a specific
period of time for the return of the occupancy to a conforming use.
(3)
Approval
to remodel and/or enlarge.
The board may approve the
remodeling and/or enlargement of a nonconforming use when such an
enlargement would not tend to prolong the life of the nonconforming
use.
(Ordinance 1133, § 1(3-600), 3-22-94)
Certain changes to nonconforming uses shall not be authorized
by the board of adjustment and are identified below.
(1)
Changing
to another nonconforming use.
No nonconforming use shall
be changed to another nonconforming use which requires more off-street
parking or loading spaces than the original nonconforming use unless
additional off-street parking or loading spaces are provided so as
to comply with the requirements of this chapter.
(2)
Maintenance
of dwelling unit density.
The number of dwelling units
in a nonconforming residential use shall not be increased so as to
exceed the number of dwelling units existing on the effective date
of this chapter.
(3)
Changes
occurring off-site.
No nonconforming use may be expanded
or increased beyond the lot or tract upon which such nonconforming
use is located as of the effective date of this chapter except to
provide off-street loading or parking spaces upon approval of the
board.
(4)
Other
ordinances.
All nonconforming uses being expanded under
the provisions of the ordinance shall comply with all other applicable
provisions of this chapter.
(Ordinance 1133, § 1(3-700), 3-22-94)
The right to use and maintain a nonconforming structure shall
cease whenever any of the following actions occur.
(1)
Damage
or destruction.
In the event of damage or destruction
of a nonconforming structure to the extent of 51 percent of the replacement
cost, such structure may be rebuilt only after public hearing and
favorable action by an affirmative vote of four members of the board.
(2)
Demolition.
Whenever a nonconforming structure is determined to be obsolete,
dilapidated, or substandard by the board, the right to operate, occupy,
or maintain such structure may be terminated by action of the board
and such structure shall be demolished.
(Ordinance 1133, § 1(3-800), 3-22-94)
Use, occupancy, remodeling and maintenance of nonconforming
structures is hereby authorized subject to the following regulations.
(1)
Enlarging,
remodeling and occupying.
Any nonconforming structure
may be enlarged, remodeled, occupied, used and maintained in a state
of good repair, but no nonconforming structure shall be enlarged or
extended so as to increase the nonconformity with any of the provisions
of this chapter.
(2)
Certificate
of occupancy and compliance.
Where a nonconforming use
is located in a structure which is nonconforming, the use may be changed
to another conforming use by securing a certificate of occupancy and
compliance.
(Ordinance 1133, § 1(3-900), 3-22-94)
(a)
The
board, upon the request of the city or the owner of property upon
which is located a nonconforming structure or use, shall initiate
an action to bring about the discontinuance of the nonconforming use
or the removal of a nonconforming structure, or both, by a date certain.
(b)
The
board shall conduct a hearing for the purpose of determining a date
certain for termination of the nonconforming use or removal of the
nonconforming structure, or both, with respect to the property. If
such action is initiated by the city, prior notice of such hearing
shall be given to the property owner.
(c)
The
date established for termination of the nonconforming use or removal
of the nonconforming structure is to give the property owner an opportunity
to recover its investment in the nonconforming structure or use from
the time such property or structure became nonconforming.
(d)
The
board shall measure the reasonableness of the opportunity for recoupment
of the property owners investment by conditions existing at the time
such use or structure became nonconforming.
(e)
The
following factors must be considered by the board in determining a
reasonable amortization period:
(1)
The
owners capital investment in structures, fixed equipment, and other
assets (excluding inventory and other assets that may be feasibly
transferred to another site) made on the property before the time
the use, the structure, or both, as applicable, became nonconforming.
Costs of replacements, improvements or additions made after the structure
or use became nonconforming shall not be included.
(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, or construction of
the structure, including net income and depreciation.
(4)
Recovery
of investment, including net income and depreciation.
(5)
General
character of the neighborhood in proximity to the nonconforming use
or structure and the necessity for all property within the City of
Euless to conform to the regulations of the unified development code
of the City of Euless.
(f)
Once
the board establishes a compliance date for a nonconforming use, the
use must cease operations on or before that date and it may not operate
thereafter unless it becomes a conforming use.
(g)
Once
the board establishes a termination date for a nonconforming structure,
the structure must be completely removed from the property by that
date, by demolition or otherwise, and such structure may not be reconstructed
or relocated in any other location in the city where it would not
be in conformance with all provisions of the unified development code
then in effect.
(Ordinance 1341, § I, 12-8-98; Ordinance 1440, § I, 8-8-00)
