B-1-100
General.
The purpose of this
ordinance is to establish zoning regulations and districts in accordance
with a the city's comprehensive land use plan in order to promote
the health, safety, morals and the general welfare of the city. They
have been designed to lessen congestion in the streets; to assure
safety from fire, panic, flood and other dangers; to provide adequate
light and air; to prevent overcrowding of land, to avoid undue concentration
of populations; to facilitate the adequate provision of transportation,
water, sewer facilities, parks, and other public requirements. They
have been made with reasonable consideration, among other things,
for the character of the district and its suitability for the particular
uses specified, and with a view to conserving the value of buildings
and encouraging the most appropriate use of land throughout the city
consistent with the comprehensive plan.
Nothing herein shall be construed to grant "permanent" zoning.
B-2-100
Zoning districts.
The city is
hereby divided into 19 zoning districts. The use, height, and development
regulations as established are uniform in each district. The 19 districts
established herein shall be known as:
|
Abbreviated Designation
|
Zoning District Name
|
|---|---|
|
A
|
Agricultural district
|
|
SFE
|
Single-family estate district
|
|
SF16
|
Single-family dwelling district-16
|
|
SF10
|
Single-family dwelling district-10
|
|
SF7
|
Single-family dwelling district-7
|
|
SFA
|
Single-family attached dwelling district
|
|
2F
|
Two-family dwelling district
|
|
MF1
|
Multiple-family one dwelling district
|
|
MF2
|
Multiple-family two dwelling district
|
|
MH
|
Manufactured housing dwelling district
|
|
MHP
|
Manufactured housing park district
|
|
NS
|
Neighborhood service district
|
|
GR
|
General retail district
|
|
CC
|
Central commercial district
|
|
C
|
Commercial district
|
|
I
|
Industrial district
|
|
SP
|
Site Plan district
|
|
PD
|
Planned development district
|
|
SFR
|
Single-family rural district
|
B-2-101
Overlay
zoning districts.
The city has hereby created two overlay
zoning districts. The use, height, and development regulations as
established are uniform in each district. The two districts established
herein shall be known as:
|
Abbreviated Designation
|
Zoning District Name
|
|---|---|
|
OT
|
Old Town overlay district
|
|
IH-35
|
IH-35 overlay district
|
B-3-100
Boundaries.
The boundaries of
the zoning districts are delineated on the zoning district map of
the city, which is incorporated in and made a part of this ordinance
for all purposes.
B-3-101
Adoption.
Original, official, and identical copies of the zoning district
map are hereby adopted bearing the signature of the mayor and the
attestation of the city secretary and shall be filed and maintained
as follows:
(a)
One
copy shall be filed with the city secretary and retained as the original
record and shall not be changed in any manner.
(b)
One
reproducible copy shall be filed with the director of community development
and shall be the official zoning district map and shall be maintained
by posting on the map all changes and subsequent amendments after
their enactment for the use of the planning and zoning commission.
(c)
One
copy shall be filed with the building official and shall be maintained
by posting on the map all changes and subsequent amendments.
(d)
Other
sectional maps for interpretation purposes are approved by resolution
by the city council.
(e)
Reproductions
for information purposes may, from time to time, be made of the official
zoning district map.
B-4-100
Typically.
The district boundary
lines shown on the zoning district map are usually along streets,
alleys, property lines or their extensions. Where uncertainty exists
as to the boundaries of districts as shown on the official zoning
map, the following rules shall apply:
(a)
Centerlines.
Boundaries indicated as approximately following the centerlines
or rights-of-way lines of streets or alleys shall be construed to
follow such centerlines or rights-of-way.
(b)
Lot
lines.
Boundaries indicated as approximately following
platted lot lines shall be construed as following such lot lines so
as to eliminate a zoning division on any platted lot.
(c)
City
limits.
Boundaries indicated as approximately following
the city limits shall be construed as following the city limits.
(d)
Streams,
rivers, or shorelines.
Boundaries indicated as following
the centerline of streams or rivers or the shoreline of lakes or ponds
shall be construed as following such centerlines or shorelines as
the case may be.
(e)
Extensions
of features.
Boundaries indicated as parallel to or extensions
of features indicated in [subsections] (a) through (d) above shall
be so construed. Distances not specifically indicated on the zoning
district map shall be determined by the scale of the map.
(f)
Vacated
public way.
Whenever any street, alley, or other public
way is vacated by official action of the city council, the zoning
district line adjoining each side of the street, alley, or other public
way shall be automatically extended to the centerline of the vacated
street, alley or way and all area so involved shall be subject to
regulations of the extended districts.
(g)
Variance
of physical features and official zoning district map.
Where physical features of the ground are at variance with information
shown on the official zoning district map or when there arises a question
as to how or whether a parcel of property is zoned and such question
cannot be resolved by the application of subsections (a) through (f),
the property shall be considered as classified in the A, agricultural
district in the same manner as provided for newly annexed territory,
and the issuance of a building permit and the determination of zoning
shall be in accordance with the provisions provided in section 5,
zoning annexed territory.
B-5-100
Classification of newly annexed territory.
All territory annexed to the city shall be classified as A,
agricultural district. The procedure for establishing zoning on annexed
territory shall conform to the procedure established by law for the
adoption of original zoning regulations.
B-5-101
Alternative
zoning classification of newly annexed territory.
The
city council or petitioners for annexation may request alternative
zoning classifications in an area being considered for annexation.
The city council and planning and zoning commission may hold public
hearings on annexation and zoning simultaneously, and the city council
may approve the zoning of a newly annexed area at the time of annexation.
B-5-102
A,
agricultural district.
In an area classified as A, agricultural
district:
(a)
No
person shall erect, construct, or proceed or continue with the erection
or construction of any building or structure, or-add to any building
or structure, or cause the same to be done in any newly annexed territory
without first applying for and obtaining a building permit or certificate
of occupancy from the building official.
(b)
No
permit for construction of a building or use of land shall be issued
by the building official other than a permit which will allow the
construction of a building permitted in the A, agricultural district.
(Ord. No. CSO#684-08-2017, §
1(Exh. A), 8-7-2017)
B-6-100
Instigation.
Any person or corporation
having proprietary interest in any property may petition the city
council for a change or amendment to the provisions of this ordinance,
or the planning and zoning commission may, on its own motion or on
request from the city council, institute study and proposal for changes
and amendments in the public interest.
B-6-105
Procedure.
(a)
The
city council may, from time to time, amend or change by ordinance,
the boundaries of the districts or the regulations established in
this ordinance as provided by the statutes of the State of Texas.
(b)
Before
taking action on a proposed amendment or change, the city council
shall submit the proposal to the planning and zoning commission for
its recommendation and report.
(c)
The
planning and zoning commission shall hold a public hearing on any
application for any amendment or change. When any such amendment or
change relates to a change in classification or boundary of a zoning
district, written notice of public, hearing before the planning and
zoning commission on the proposed amendment or change shall be sent
to all owners of real property lying within 200 feet of the property
on which the change is requested. A courtesy notice shall also be
provided to real property owners within an additional 100 feet of
the property. These properties will not be included in the protest
calculation, as regulated by 6-105(f) below. The notice shall be given
not less than ten days before the date set for hearing by posting
such notice properly addressed and postage paid to each owner as the
ownership appears on the last approved city tax roll. Notice shall
also be posted along with the agenda for all hearings and related
meetings in accordance with the applicable laws of the State of Texas.
When an amendment relates to a change of a zoning regulation or to
the text of this ordinance not affecting specific property, notice
of the public hearing of the city planning and zoning commission shall
be given by publication in a newspaper of general circulation in the
city without the necessity of notifying property owners, by mail.
The notice shall state the time and place of the hearing and the nature
of the subject to be considered, which time shall not be earlier than
ten days from the date of publication.
(d)
The
city manager or a designee shall direct the erection of at least one
sign upon each property proposed to be rezoned. Signs shall be a minimum
of two and one-half feet by three feet in dimension. Where possible,
such sign or signs shall be located in a conspicuous place or places
upon such property at a point or points nearest any right-of-way,
street, roadway or public thoroughfare adjacent to such property.
Such sign(s) shall be so erected not less than ten days before the
date set for public hearing before the planning and zoning commission.
Any such sign(s) shall be removed subsequent to the occurrence of
either final action by the city council or withdrawal of the application
for amendment. Such sign(s) shall substantially indicate that a zoning
amendment is proposed and shall further set forth that additional
information can be acquired by telephoning the number indicated thereon.
The erection and/or the continued maintenance of any such sign(s)
shall be deemed a condition precedent to the holding of any public
hearing, to the recommendation concerning or adoption of any proposed
zoning amendment or to any other official action concerning any such
amendment.
(e)
A public
hearing shall be held by the city council before adopting any proposed
amendment, supplement or change. Notice of the hearing shall be given
by publication in a newspaper of general circulation in the City of
Burleson stating the time and place of the hearing, which time shall
not be earlier than 15 days from the date of publication.
(f)
The
city council may, by resolution, elect to combine the planning and
zoning commission hearing and the council hearing; however, the city
council shall not take action upon any proposed amendment or change
until it has received the final report and recommendation from the
planning and zoning commission. When the joint hearing provision of
this ordinance is in effect, the city council shall cause a notice
showing the time and place of the hearing to be published in a newspaper
of general circulation at least 15 days prior to the hearing. In addition,
notice of all jointly held public hearings on proposed changes in
classification shall be sent to owners of real property lying within
200 feet of the property on which the change in classification is
proposed, the notice to be given not less than ten days before the
date set for hearing, to all the property owners as the ownership
appears on the last approved city tax roll. Such notice may be served
by depositing it, properly addressed and postage paid, in the United
States mail. When any such amendment relates to a change of a zoning
regulation or to the text of this ordinance not affecting specific
property, notice requirements shall be the same as those specified
in paragraph (c), above.
(g)
If
the city planning and zoning commission recommends denial for a proposed
amendment, or change or if a protest against a proposed amendment,
or change has been filed with the city secretary, duly signed and
acknowledged by the owners of 20 percent or more, either of the area
of the lots included in that a proposed change or those lying within
200 feet of the property on which the change is requested, the amendments
shall not be approved, except by a three-fourths vote of the city
council.
(h)
The
city may, at its option, establish additional rules and procedures
for public notification of proposed zoning changes and development
proposals (e.g., site plans, plats, etc.) which may include, but not
be limited to, the posting of a sign(s) on any property that is proposed
for a zoning change or development by the applicant or its agent(s).
Knowledge of and adherence to such rules and procedures, if so established
by the city, shall be the responsibility of the applicant.
B-7-100
Generally.
No permit for the
construction of a building or buildings upon any land shall be issued
until a building site, has been created by the land being a platted
lot appearing on a plat properly approved by the city and filed in
the records of the county clerk of the appropriate county.
B-7-200
Site plan required.
A site plan
reviewed by the members of the city's development assistance committee
(DAC) is required within the MF1, MF2, MHP, NS, GR, C, CC, and I zoning
districts prior to the issuance of a building permit or certificate
of occupancy for the following:
(a)
Construction
of a new structure;
(b)
A change
of parking requirements as regulated by section 134, vehicle parking
regulations; and
(c)
The
structural modification of an existing structure which would require
a site modification affecting traffic and safety for such items, including,
but not limited to fire lanes or ingress egress.
Editor's note—Additional requirements may
apply, please refer to Section 131, site plan requirements.
B-8-100
Generally.
A building under construction
at the time of the passage of this ordinance or any amendment to this
ordinance, may be completed in accordance with its plans and designated
use so long as it is completed within one year from the date of the
passage of this ordinance.
B-9-100
Required.
No land, building,
or portion of a building shall be used, or changed in use until a
certificate of occupancy has been issued by the building official
stating that the building, or portion of the building, or the proposed
use of land or building, compliance with the provisions of this ordinance
and other building regulations. Failure to obtain a certificate of
occupancy as required, shall constitute a basis to deny or disconnect
city utilities or to require private utility companies to do likewise.
B-9-105
Application.
A certificate of
occupancy shall be applied for and coincident with the application
for a building permit and will be issued before occupancy and connection
of utilities to a building, provided [that] the construction or change
has been made in conformity with the provisions of this ordinance
and other building regulations.
B-9-110
Record.
A record of all certificates
of occupancy shall be maintained on file in the office of the building
official.
B-9-115
Change of nonconforming use.
Whenever a change of occupancy from one nonconforming use to another
nonconforming use is proposed, an application for a certificate of
occupancy shall be made to the building official.
(2-6-2023 by Ord. No. 5002-02-2023)
B-11-100
Organization.
There is hereby created a board of adjustment. The board membership shall be in compliance with chapter 2, article II, section 2-31(e) for the number of members, section 2-33(a) for qualifications of members, and section 2-31(d) for terms of members. The city council may appoint three alternate members who shall serve in the absence of one or more regular. All cases to be heard by the board of adjustment must be heard by a minimum number of the seven members. The alternate members shall serve for the same terms and shall be subject to removal the same as regular members. Vacancies in the positions of alternate members shall be filled in the same manner as for regular members.
B-11-105
Procedure.
The board of adjustment
shall adopt rules to govern its proceedings not inconsistent with
this ordinance or state statutes. Meetings of the board shall be held
at the call of the chairman and at such other times as the board may
determine. The chairman, or in his absence, the vice-chairman, may
administer oaths and compel the attendance of witnesses, and shall
have the same subpoena powers as the municipal court. The board of
adjustment shall keep minutes of its proceedings, showing the vote,
abstention, or absence of each member upon each question, and shall
keep records of its examinations and other official actions, all of
which shall be immediately filed in the office of the city secretary
and shall be public record.
B-11-110
Appeals to the board of adjustment.
(a)
Appeals
to the board of adjustment may be taken by any person aggrieved or
by any officer, department, board or bureau of the municipality affected
by any decision of the administrative official as designated under
section 13-100. Such appeal shall be taken within ten business days
as provided by the rules of the board, by filing with the officer
from whom the appeal is taken and with the board of adjustment, a
notice of appeal specifying the grounds for the appeal. The officer
from whom the appeal is taken shall forthwith transmit to the board
of adjustment all the papers constituting the record of the action
appealed.
(b)
An
appeal stays all proceedings in furtherance of the action appealed
unless the officer from whom the appeal is taken certifies to the
board of adjustment that by reason of facts stated in the certificate,
a stay would, in his opinion, cause imminent peril of life or property.
In such a case, proceedings shall not be stayed, otherwise than by
a restraining order which may be granted by the board of adjustment
or by a court of record on application and on due cause shown.
(c)
The
board of adjustment shall fix a reasonable time for the hearing of
an appeal, give public notice of the hearing as well as notify real
property owners within 200 feet of the subject property. At the hearing,
any party may appear in person or by agent or attorney. The board
shall render a decision within a reasonable amount of time after the
hearing.
B-11-115
Powers of the board.
(a)
The
board of adjustment has the following powers:
(1)
To hear and decide appeals where it is alleged there is error in
any order, requirement, decision, or determination made by an administrative
official in the enforcement of this ordinance as amended.
(2)
To hear and decide variances and special exceptions to the terms
and of this ordinance as required under the ordinance.
(3)
To authorize, upon appeal in specific cases, such variance from the
terms of this ordinance as will not be contrary to the public interest,
where, owing to special conditions, a literal enforcement of the provisions
of the ordinance will result in unnecessary hardship, and so that
the spirit of the ordinance shall be observed and substantial justice
done.
(4)
Permit the reconstruction, extension or enlargement of a building
occupied by a nonconforming use on the lot or tract occupied by the
building, and the addition of off-street parking or off-street loading
to a nonconforming use.
(b)
In
exercising the its powers the board may, in conformity with the provisions
of this ordinance, reverse or affirm, wholly or partly, or may modify
the order, requirement, decision or determination appealed from and
make such order, requirement, decision or determination as ought to
be made, and to that end shall have all the powers of the officer
from whom the appeal is taken.
(c)
The
board may permit such variance or modifications of the height, yard,
area, coverage and parking regulations as may be necessary to secure
appropriate development of a parcel of land which differs from other
parcels in the district by being of such restricted area, shape or
slope that it cannot be appropriately developed without such modification.
In exercising its power to grant a variance in accordance with this
ordinance, the board of adjustment shall make findings and show in
its minutes that:
(1)
There are special circumstances existing on the property on which
the application is made related to size, shape, area, topography,
surrounding conditions, and location that do not apply generally to
other property in the same area and the same zoning district.
(2)
That a variance is necessary to permit the applicant the same rights
in the use of his property that are presently enjoyed, under the ordinance,
by other properties in the vicinity and zone, but which rights are
denied to the property on which the application is made.
(3)
That the granting of the variance on the specific property will not
adversely affect the land use pattern as outlined by the land use
plan and will not adversely affect any other feature of the comprehensive
plan of the city.
(4)
That the variance, if granted, will not be materially detrimental
to the public welfare or the use, enjoyment, or value of property
in the vicinity.
(d)
The
board may require the discontinuance of nonconforming uses of land
or buildings under any plan whereby the full value of the buildings
and facilities can be amortized within definite period of time, taking
into consideration the general character of the neighborhood and the
necessity of all property to conform to the regulations of this ordinance.
All actions to discontinue a nonconforming use of land or structure
shall be taken with due regard to the property rights of the persons
affected when considered in the light of the public welfare and the
character of the area surrounding the designated nonconforming use
and the conservation and preservation of the property. The board shall,
from time to time, on its own motion or upon cause presented by interested
property owners, inquire into the existence, continuation or maintenance
of any nonconforming use within the city.
B-11-120
Vote required for board decisions.
The concurring vote of seven members of the board of adjustment
shall be necessary to reverse any order, requirement, decision, or
determination of any administrative official, or to decide in favor
of the applicant on any matter upon which it is required to pass under
this ordinance, or to effect any variance to the ordinance.
B-11-125
Appeal from board decisions.
(a)
Any
person or persons, jointly or severally, aggrieved by any decision
of the board of adjustment may present to a court of record, a petition,
duly verified, setting forth that such decision is illegal, in whole
or in part, specifying the grounds of illegality. Such petitions shall
be presented to the court within ten days after the filing of the
decision in the office of the board.
(b)
Costs
shall not be allowed against the board unless it shall appear to the
court that it acted with gross negligence, or in bad faith, or with
malice in making the decision appealed from.
B-11-130
Fee.
There shall be a fee assessed,
as set by the city council for each request for a variance to this
ordinance.
B-12-100
Appeal from DAC decisions.
Any
person, firm, association of persons, company, corporation or their
agents, servants or employees aggrieved by any decision of the development
assistance committee (DAC) shall have the right to appeal to the appropriate
board, i.e., the fire board, building board or zoning board of adjustment.
B-13-100
Administrative official.
The
city manager shall appoint an official who shall be designated as
the "administrative official" in charge of enforcing and administering
the terms of the zoning ordinance. The administrative official may
act in person or through a designee.
B-13-105
Administrative interpretations.
The administrative official shall be charged with interpreting and
enforcing the terms of this ordinance. Except as provided in section
13-110, administrative waiver below, no waiver of any terms, conditions,
or requirements of this ordinance shall be granted by the administrative
official. All interpretations made by the administrative official
shall be based upon the purpose and intent of the ordinance in order
to achieve consistency and compatibility with all requirements of
the ordinance.
B-13-110
Administrative waiver.
The administrative
official may approve a waiver of up to 15 percent of any required
yard area, setback, or similar development regulation under the following
conditions:
(a)
The
structure in question must be an existing structure that has previously
been granted a certificate of occupancy and that has been found to
encroach upon a required setback due to a survey or construction error
in the placement of the original foundation or site improvement or
that is otherwise found to be in noncompliance with the development
regulations through a title search or during the application process
for rezoning, platting, etc.
(b)
Administrative
waivers shall not be authorized to allow a waiver of the permitted
uses in any zoning district.
B-14-100
Conformance with zoning regulations.
All land, buildings, structures, or appurtenances thereon located
within the city which are hereafter occupied, used, erected, altered
or converted shall be used, placed and erected in conformance with
the zoning regulations prescribed for the zoning district in which
such land or building is located.
B-15-100
Generally.
In interpreting and
applying the provisions of this ordinance, they shall be held to be
the minimum requirements for the promotion of the public safety, health,
convenience, comfort, prosperity or general welfare. It is not intended
by this ordinance to interfere with or abrogate or annul any easements,
covenants or other agreements between parties; provided, however,
that where this ordinance imposes a greater restriction upon the use
of buildings or promises or upon height of buildings, or requires
larger open spaces than are imposed or required by other ordinances,
rules, regulations or by easements, covenants or agreements, the provisions
of this ordinance shall govern.
B-16-100
Generally.
By the passage of
this ordinance, no presently illegal or nonconforming use shall be
deemed to have been legalized or made conforming unless an illegal
or nonconforming use falls within a district where the use is conforming.
Otherwise, such uses shall remain illegal or nonconforming uses, as
the case may be. No offense committed, and no liability, penalty,
or forfeiture, either civil or criminal, incurred prior to the adoption
of this ordinance shall be discharged or affected but the prosecutions
and suits for such offenses, liabilities, penalties, or forfeitures
may be instituted, or causes presently pending proceeded with, in
all respects as if the prior ordinance has not been amended.
B-16-105
Effective date.
This amended
ordinance shall become effective October 1, 1997.
B-17-100
Generally.
1.
Lot width.
 |
2.
Lot area
& depth.
 |
3.
Yards.
 |
4.
Corner
lot.
 |
5.
Method
of measuring front yard.
 |
6.
Double
frontage lots.
 |
7.
Front
yard where zoning changes in a block.
 |
8.
Interpretation
of average front yard where yard depth varies.
 |
9.
Special
apartment side yard and spacing standards.
 |
10.
Set
back standards high rise apartment & similar structures.
 |
11.
Side
yard standards attached single family dwellings.
 |
12.
Illustration
of fence regulations.
 |
B-18-100
Generally.
It is recognized
that new types of land use will develop and forms of land use not
anticipated may seek to locate in the city. In order to provide for
such changes and contingencies, a determination as to the appropriate
classification of any new or unlisted form of land use shall be made
as follows:
(a)
Community
development director action.
The community development
director or his her designee may refer the question concerning any
new or unlisted use to the planning and zoning commission requesting
an interpretation as to the zoning classification into which such
use should be placed. The referral of the use interpretation question
shall be accompanied by a statement of facts listing the nature of
the use and whether it involves dwelling activity, sales, processing,
type of product, storage and amount and nature thereof, enclosed or
open storage, anticipated employment, transportation requirements,
the amount of noise, odor, fumes, dust, toxic material, hazardous
or class 1 materials and vibration likely to be generated and the
general requirements for public utilities such as water and sanitary
sewer.
(b)
Planning
and zoning commission action.
The planning and zoning
commission shall consider the nature and described performance of
the proposed use and its compatibility with the uses permitted in
the various districts and determine the zoning district or districts
within which such use should be permitted.
(c)
City
council action.
The planning and zoning commission shall
transmit its findings and recommendations to the city council as to
the classification proposed for any new or unlisted use. The city
council may, by ordinance, approve the recommendation of the commission
or make such determination concerning the classification of such use
as is determined appropriate.
(Ord. No. CSO#111-01-2015, §
1, 1-5-2015; Ord. No.
CSO#111-01-2015, § 2, 1-5-2015)
B-19-100
Generally.
A nonconforming status
shall exist under the following provisions of this ordinance:
(a)
Within
the districts established by this ordinance or amendments thereto,
there exist lots, structures, uses of land and structures, and characteristics
of use which were lawful immediately before this ordinance was enacted,
amended or otherwise made applicable to such lots, structures or uses,
but which do not conform to the regulations of the district in which
they are located. It is the intent of this ordinance to permit such
nonconforming use to continue, under regulations herein contained,
until the same are removed, but not to encourage their survival.
(b)
It
is further the intent of this ordinance that nonconforming uses shall
not be enlarged upon, expanded or extended, nor be used as grounds
for adding other structures or uses prohibited elsewhere in the same
district.
(c)
Nonconforming
uses are hereby declared to be incompatible with the permitted uses
in the districts involved.
B-19-105
Nonconforming uses regulated.
Except as herein provided, no nonconforming use of land or buildings
nor any nonconforming structure shall be enlarged, changed, altered
or repaired in conformity with the regulations contained in this article.
B-19-110
Nonconforming status.
Any use,
lot or structure which does not conform with the regulations of the
zoning district in which it is located, is nonconforming when:
(a)
The
use, lot or structure was in existence and lawfully operating on June
27, 1985, and has since been in regular and continuous use; or
(b)
The
use, lot or structure is lawful at the time of the adoption of any
amendment to this ordinance but because of the amendment no longer
complies with applicable regulations; or
(c)
The
use, lot or structure was in existence at the time of annexation to
the city and has since been in regular and continuous use.
B-19-115
Continuing lawful use of property.
(a)
It
is the policy of the City of Burleson to allow the continuance of
legal non-conforming uses but not to encourage their survival. It
is in the long-term best interest of the community for all properties
and structures to ultimately come into compliance with the requirements
of the municipal zoning ordinance. The ordinance, as adopted, is intended
to implement the goals and objectives of the city's comprehensive
plan and, therefore, all properties should ultimately be brought into
compliance with the requirements of the municipal zoning ordinance.
(1)
If, at the effective date of this section or amendment thereof, a
lawful use of land exists which would not be permitted by the regulations
imposed by this ordinance, the use may be continued so long as it
remains otherwise lawful, provided:
a.
The legal non-conforming use does not cease due to discontinuance
or abandonment.
b.
The legal non-conforming use shall not be enlarged or increased,
nor extended to occupy a greater area of land than was occupied at
the effective date of adoption or amendment of this section, unless
provided for herein; or
c.
The legal non-conforming use shall not 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 effective date of adoption or amendment of this
section.
(2)
For the purpose of this section, "abandonment" shall be defined as
intent by the owner to permanently close or cease the use, coupled
with any act or statement by the owner that manifests such intent.
The following conditions, events or conduct shall be presumed to constitute
intent to abandon a legal non-conforming use:
a.
The closure or cessation of the non-conforming use for a period of
120 consecutive days; or
b.
The failure of the owner to repair the structure or property used
to operate the non-conforming use within 30 days after the chief building
official or code enforcement officer has given the owner written notice
that the building, structure or property is:
1.
In an advanced stage or dilapidation, as determined by either the
zoning administrator or the chief building official;
2.
In violation of one or more applicable health and safety codes adopted
by the city that govern the use or condition of structures designed
for human occupancy, as amended, including but not limited to the
applicable building, plumbing, electrical, mechanical, and life safety
codes as adopted by the city; or
3.
Otherwise unsafe for the continuation of the current use or occupancy.
(3)
For the purpose of this section, "discontinuance" shall be defined
as follows:
a.
When a legal non-conforming use has historically been operated on
a continuous basis, a closure or cessation or a use for a period of
180 consecutive days, irrespective of whether the owner has actual
intent to abandon the use; or
b.
When a legal non-conforming use has historically been operated only
on a seasonal basis, such use shall be deemed to have been discontinued,
regardless of whether the owner has actual intent to abandon the use,
if either:
1.
The structure or property upon or in which the use has been operated
is closed or the non-conforming use ceases to operate for a period
of 180 consecutive days; or
2.
The structure or property upon or in which the use has been operated
is closed or the non-conforming use ceases to operate in a bona-fide
manner during one or more normal and customary seasons or periods
of operation during which the non-conforming use has historically
been operated.
B-19-120
Changing nonconforming uses.
(a)
A
nonconforming use of a building may be changed to another nonconforming
use of the same or more restrictive classification, after approval
by the board of adjustment, provided that when a nonconforming use
is changed to a nonconforming use of a higher or more restrictive
classification, it shall not later be reverted to the former less
restrictive classification.
(b)
No
nonconforming use shall be changed to another nonconforming use which
requires more off-street parking spaces or off-street loading space
than the original nonconforming use, unless additional off-street
parking and loading space is provided so as to comply with the requirements
of sections 5, zoning annexed territory and section 14, compliance
required.
B-19-125
Extension of nonconforming uses.
A nonconforming use of a building may be extended throughout the
building provided:
(a)
No
structural alterations may be made on or in the building, except those
required by law to preserve the building in a structurally sound condition.
(b)
The
number of dwelling units or rooms in a nonconforming residential use
shall not be increased so as to exceed the number of dwelling units
or rooms existing at the time the use became a nonconforming use.
(c)
No
nonconforming use within a building may be extended to occupy any
land outside the building.
(d)
No
nonconforming use of land shall be enlarged or increased, nor extended
to occupy a greater area of land than was occupied at the time the
land became a nonconforming use.
B-19-130
Restoration of damaged property.
A building damaged to the extent of not more than 50 percent of its
reasonable value, by fire, explosion, or other casualty, act of God,
or a public enemy, may be restored and the occupancy or use continued
to the extent the building or use existed at the time of the damage.
B-19-135
Termination of nonconforming uses.
The right to operate a nonconforming use shall cease and the
use shall be terminated under any of the following circumstances:
(a)
The
use is abandoned or discontinued.
(b)
If
any provision of this ordinance, other ordinance, federal, or state
law is violated with respect to a nonconforming use.
(c)
When
a nonconforming use is brought into compliance by rezoning.
(d)
The
structure in which a nonconforming use is housed, operated or maintained
is damaged to the extent of more than 50 percent of its value.
(e)
When
the right to maintain or operate a nonconforming use has been terminated
by the board of adjustment as provided in section 11, board of adjustment
hereof.
B-19-140
Registration of nonconforming uses.
The operator, owner or occupant of a nonconforming use, lot,
or building shall, within 18 months after the date on which use, lot,
or building becomes nonconforming, register the nonconforming use,
lot or building by obtaining from the building official a certificate
of occupancy (nonconforming) even though a previous certificate of
occupancy may have been issued. The 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 ordinance.
The building official shall maintain a register of all certificates
of occupancy issued for nonconforming uses and shall, on written request
and payment of a fee, issue a duplicate certificate to anyone having
a proprietary interest, in the property in question. A nonconforming
structure need not be registered.
B-19-145
Rules of procedure for the processing of
requests for discontinuance or amortization of legal non-conforming
uses.
(a)
Determination
of need for expedited compliance.
As noted in [section]
19-115 of the municipal zoning ordinance, it is the policy of the
City of Burleson to allow the continuance of legal non-conforming
uses but not to encourage their survival. A legal non-conforming use
shall be permitted to continue for the life of the structure based
upon the investment made by the original builder or operator. No structural
alterations that extend the life or expand the degree of non-compliance
shall be permitted as a general rule. Under certain conditions the
continued existence of a legal non-conforming use may create such
a degree of incompatibility with surrounding land uses and with the
intent of the city's short range, medium range and long range comprehensive
planning that a requirement for expedited compliance with the zoning
district regulations is necessary in the public interest. A decision
of this nature may affect vested property rights of the property owner
and, therefore, the following procedural requirements shall apply.
(1)
Determination of need for expedited compliance.
Any
city officer, board, commission or the city council may request that
the zoning board of adjustment establish a zoning compliance date
for a non-conforming use. Upon receiving such a request, the board
shall determine whether there is a public necessity for expedited
compliance with the zoning regulations. The following factors must
be considered by the board in determining the public necessity for
expedited compliance:
a.
The character of the surrounding neighborhood.
b.
The degree of incompatibility of the use to the zoning district in
which it is located.
c.
The effect of the non-conforming use on the surrounding area and
the effect of its cessation on that area.
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If a request for the establishment of a compliance date is received
by the zoning board of adjustment, the board will schedule a public
hearing in conformance with the notice and procedural requirements
established by Section 11 of Ordinance No. B-582 and the rules of
the board.
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(2)
Hearing requirements.
Notice of the public hearing shall
be given to the owner of the affected property and all surrounding
property owners within 200 feet of the subject property as prescribed
for other cases heard by the zoning board of adjustment. All interested
citizens, individuals and organizations will be given the opportunity
to appear before the board and present evidence that they deem relevant
and appropriate for the board to consider in determining the need
for the establishment of a compliance date for the specific non-conforming
use.
At the conclusion of the public hearing the board shall make
a finding as to whether or not there is a need for expedited compliance
with the municipal zoning ordinance and shall determine whether or
not it is appropriate to set a date certain for the use or activity
to come into compliance with the current requirements of the ordinance.
If the board determines that there is no need for expedited compliance,
it shall provide written notice to the party who requested the hearing
that the board has found that expedited compliance is not necessary
at the present time. No further action shall be taken by the board
and the non-conforming use shall retain its existing status. Any party
who disagrees with this determination by the board shall have the
right to appeal such decision to state district court in the same
manner as any other decision of the board may be presented for judicial
review. Review is by writ of certiorari and shall be presented in
the manner set forth in V.T.C.A., Local Government Code § 211.011.
(b)
Expedited
compliance—procedure for determining amortization value.
If the board determines that expedited compliance is necessary
and appropriate in the public interest, it shall commence the proceedings
necessary to establish the value of the non-conforming use and a reasonable
amortization period for that use. The board of adjustment shall initially
establish a time for hearing evidence on the various value and income
issues necessary to comply with the amortization process. The board
shall give the various parties to an amortization case sufficient
time to conduct discovery and to prepare evidence of value, depreciation
and income. The standard position of the board shall be to establish
a hearing date a minimum of 60 days following the determination of
a need for expedited compliance. The parties may exchange written
discovery requests and take, as appropriate, depositions of potential
witnesses. Discovery disputes will be presented to the chairman of
the board for resolution. The hearing to determine value and income
matters relating to amortization shall be subject to the same notice
requirements as those established for the expedited compliance hearing.
The purpose of the second hearing shall be to determine the value
of the interest taken, if any, and whether the owner has had a reasonable
opportunity to recoup that value. The value is determined in the following
manner:
(1)
A determination is made, based on the presentment of evidence, of
the initial investment made by the original owner in the construction
and establishment of the non-conforming use. Land value is not a factor
as the property owner or his successor will retain ownership and the
right to use the land for a legal use. The board should consider any
evidence establishing the amount of the investment made in the establishment
of the non-conforming use prior to the point in time at which it became
legal non-conforming. Any improvement, addition, expansion or change
made after the date of its legal non-conformity shall not be considered
by the board, as it was made by the owner with knowledge of the limited
life expectancy and use of the property. Initial investment value
shall not be given to items that may be transported to a new site.
Compensation for these items is addressed as a relocation cost under
subsection (b)(7). The purpose of amortization value determination
is to fully recognize the investment the owner made at the time that
the use was legally permitted.
(2)
The board next determines the date upon which the non-conforming
use came into existence and/or operation.
(3)
The board shall then determine the income that the property has produced
annually since the non-conforming use commenced. The board, at its
discretion, may make findings as to the annual operating cost of the
non-conforming use to determine income over purely operating revenue.
The board shall prepare a written finding stating clearly for each
year that the non-conforming use has been in existence, the annual
income it has produced and shall further make a finding of its current
annual income based upon the income it produced at the close of the
most recent calendar year for which it has been in operation. If due
to the age of the non-conforming use, changes of ownership, or the
loss or destruction of records it is not possible to prepare an income
finding for each year of the non-conforming use the board will make
a finding for each year that can be documented and will note why the
missing years have not been addressed. The board shall use that annual
income as the current and future income projection of the non-conforming
use for determining amortization of any remaining investment value.
Any party to these proceedings shall have the right to offer evidence
as to why that projection is no longer realistic based upon evidence
of economic change.
(4)
The board shall determine whether the original investment in the
non-conforming use is subject to depreciation due to physical and/or
market conditions. The board shall look at standard industry practices
in determining a reasonable depreciation schedule.
(5)
The board shall then take the original investment value determined
in step number (1) of this process and then subtract from that number
the income of the non-conforming use as determined in step (3) and
any depreciation of the non-conforming use as determined in step (4).
If the subtraction of the income of the non-conforming use from the
original investment value less depreciation leaves a positive figure
of value remaining in the tract, the board shall make a determination
that there is unamortized value in the non-conforming use that must
be addressed by the city prior to expedited compliance. If the subtraction
of the income streams from the initial investment value produces a
negative number, then no unamortized value will remain and the city
may proceed with establishing a date for expedited compliance without
the need to address unamortized value.
(6)
All findings of the board pertaining to the value of the investment
in the non-conforming use and the rate of return derived by the owner
must be reasonable and in accordance with accepted industry practices
for that type of non-conforming use. Any party may offer evidence
to the board in order to substantiate a reasonable value of the initial
investment and/or a reasonable rate of return for such non-conforming
use.
(7)
The board shall next determine whether the property owner will incur
any costs of closing down or relocating the non-conforming use occurring
on the tract. Closure or relocation cost shall include only the reasonable
and necessary expenses to transport items and material on the site
to a new location. Relocation cost does not include the cost of acquiring
alternate land as the property owner is retaining the land at the
existing site to convert to a conforming use. The cost of relocation
does not include the cost of removing permanent improvements such
as buildings, parking areas, or public works facilities that will
remain on the original site for use by the owner in a conforming business
activity.
(c)
Board
findings on unamortized value and the cost of relocation.
If the board has made a determination that unamortized value remains
in the non-conforming use by determining that the original investment
value minus depreciation exceeds the amount of income derived from
the non-conforming use during its operation through the date of the
amortization hearing, the board shall make the following findings
as a matter of record:
(1)
The dollar value of the unamortized interest remaining in the non-conforming
use (original investment value, minus depreciation and minus income
earned during historic operation of the non-conforming use).
(2)
The dollar income the non-conforming use produced during its last
full calendar year of operation prior to the date of the hearing.
(3)
The dollar cost of relocating business assets on inventory under
(b)(7) above.
(4)
The calendar date upon which amortization shall be complete which
shall be determined by dividing the unamortized value from step (1)
by the current annual income of the non-conforming use set forth in
(2) above. The board shall then add the closure and relocation costs
identified in (b)(7) to determine the investment or cost to be amortized.
The calendar date determined herein shall be the date upon which the
income from the non-conforming use is believed to have fully amortized
the original investment value of the non-conforming use together with
the closure/relocation costs that are properly chargeable to the non-conforming
use.
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The board shall make these findings matters of record in the
minutes of the board meeting in which such final determination was
reached. The date upon which final amortization occurs (findings (4)
as set forth above) shall be the date upon which the legal non-conforming
use shall cease to operate in a non-conforming status.
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Under no circumstance shall a non-conforming use be given less
than 90 days to cease operation irrespective of the date determinations
made above. The 90-day minimum is to provide the non-conforming use
business with the opportunity to give its customers, suppliers and
vendors proper notice and to permit an orderly closure and transfer
of business operations.
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The zoning board of adjustment shall cause its findings to be
transmitted to the city council if any unamortized value remains in
the non-conforming use identified for expedited compliance. The city
council in its sole discretion shall have the right to determine if
the city should appropriate funds to purchase the remaining unamortized
value of the non-conforming use, thereby instituting immediate closure
rather than waiting for the expiration of the time necessary for the
automatic amortization of remaining value.
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B-19-150
Nonconforming residence and churches.
(a)
Single-family
residences, existing in the 2F, MH, MHP, NS, GR, CC, C and I zoning
districts immediately prior to June 22, 1985, shall not be considered
nonconforming but as legally existing uses, and shall have the right
to repair, expand, and replace existing structures. If the residence
ceases to be used as a single-family dwelling and is converted to
another type use; the right to exist in the above-mentioned zoning
districts as a single-family dwelling is hereby permanently terminated.
Nothing in this section shall be construed to prevent the conversion
of residential structures as permitted in section 100-135, conversion
of residential structure.
(b)
Churches
and rectories existing in the SFR, SF10, SF7, SPA and 2F zoning districts
shall have the same nonconforming provisions as described for residences
in (a) above.
