City of Sansom Park, TX APPLICATIONS AND AMENDMENTS

§ 5.1 AMENDMENTS TO ZONING ORDINANCE AND DISTRICTS, ADMINISTRATIVE PROCEDURES, AND ENFORCEMENT.

PURPOSE AND INTENT

The purpose of this Article is to establish application procedures, internal review procedures, public notice and hearing procedures, and review criteria for the processing of applications and actions that affect the development and use of property subject to the jurisdiction of the City of Samson Park.

SECTION 5.1.2

INITIATION OF APPLICATION

Application Submittal.

All development applications to be considered by the City Council shall be initiated by the filing of the application by the owner of the property on which the permit is applicable or by the owner’s designated agent. In the event an application is submitted by a designated agent, the application must be accompanied by a written statement, signed by the owner, authorizing the agent to file the application on the owner’s behalf.

Determination of Application Completeness

All development applications shall be subject to a determination of completeness by the City Manager or his/her designee.

No application shall be deemed complete and accepted for processing unless it is accompanied by all documents required by and prepared in accordance with the requirements of this Zoning Ordinance. For a determination of completeness to be issued, an application must include the following:

Payment of the appropriate fee;

An accurate metes and bounds description of the subject property (or other suitable legal description);

A survey exhibit and other appropriate exhibits as identified in this Article for the individual permit; and

Any additional documents, forms or other materials required by the City Manager or his/her designee or identified in this Zoning Ordinance for the processing of a specific development application.

(1)

The City Manager or his/her designee may from time to time identify additional requirements for a complete application that are not contained within but are consistent with the application contents and standards set forth in this Zoning Ordinance.

(2)

A determination of completeness shall not constitute a determination of compliance with the substantive requirements of this Zoning Ordinance.

(3)

Not later than the tenth (10) business day after the date an application is submitted, the City Manager or his/her designee shall determine if the application is complete. If the application is incomplete, a written determination shall be mailed to the applicant within such time period by United States Mail at the address listed on the application. The determination shall specify the documents or other information needed to complete the application and shall state that the application will expire if the documents or other information are not submitted within forty-five (45) days after the date the application was submitted.

(4)

An application filed on or after the effective date of this amended and restated Zoning Ordinance shall be deemed complete on the eleventh (11) business day after the application has been received, if the applicant has not otherwise been notified that the application is incomplete. For purposes of this section, the applicant shall be deemed to have been notified if the City has mailed a copy of the determination as provided in section 5.1.2.B.2.d.(3) above.

(5)

The processing of an application by any City employee prior to the time the application is determined to be complete shall not be binding on the City as the official acceptance of the application for filing. However, this application may be denied for incompleteness within the forty-five (45) day period.

(6)

A development application shall be deemed to expire on the forty-fifth (45) day after the application is submitted to the City Manager or his/her designee for processing if the applicant fails to provide documents or other information necessary to meet the requirements of this Zoning Ordinance or other requirements as specified in the determination provided to the applicant. Upon expiration, the application will be returned to the applicant together with any accompanying documents. Thereafter, a new application must be submitted.

(7)

No vested rights accrue solely from the filing of an application that has expired pursuant to this section, or from the filing of a complete application that is subsequently denied.

Application Withdrawal.

Any request for withdrawal of an application must be submitted in writing to the City Manager or his/her designee. If notification is required for the application and has been properly given via publication in the newspaper and/or written notification to surrounding property owners, such application must be placed on the agenda. The staff representative shall notify the Board, Commission or City Council of the request for withdrawal. The Board, Commission or Council may, at its discretion, accept the request for withdrawal of the application by general consent of the members. Application fees are not refundable unless reimbursement is otherwise authorized by the City Manager or his/her designee.

SECTION 5.1.3

NOTICE REQUIREMENTS

Published Notice.

Whenever published notice of a public hearing before a Board, Commission or the City Council is required, the City Manager or his/her designee shall prepare a notice to be published in an official newspaper or a newspaper of general circulation in the City before the fifteenth (15) day before the date set for the required hearing. Said notice shall set forth the date, time, place and purpose of the hearing as required under LGC section 211.006(a).

Written Notice.

Whenever written notice of a public hearing before the City Council is required, before the tenth (10) day before the hearing date, the City Manager or his/her designee shall cause written notice to be sent to each owner, as indicated by the most recently approved municipal tax roll, of real property within two hundred (200) feet of the exterior boundary of the property in question. Said notice shall set forth the date, time, place and purpose of the hearing as required under LGC section 211.007(c). The notice may be served by its deposit, properly addressed with postage paid, in the United States mail. Failure of owners to receive notice of hearing shall in no way affect the validity of the action taken.

SECTION 5.1.4

PUBLIC HEARINGS

Public Hearing Required.

Whenever a public hearing is required, the City Secretary or his/her designee shall establish the date, time and place of the public hearing and shall cause any notice required under section 5.1.3 of this Article to be prepared and made accordingly.

Conduct of Hearing.

Any person may appear at the public hearing and submit evidence, either individually or as a representative of an organization. Each person who appears at a public hearing shall state his or her name, address, and if appearing on behalf of an organization, state the name and mailing address of the organization for the record. Subject to the Mayor’s inherent authority to conduct meetings, public hearings shall generally be conducted as follows:

The City staff may present a description of the proposed project and a written or oral recommendation, if required. Any written recommendation shall be available to the public at the time that the agenda packet for the body conducting the hearing is compiled.

The applicant may present any information it deems appropriate.

Testimony in support of the application may be presented by any individual who expresses an interest in the proposed project.

Testimony in opposition to the application may be presented by any individual who expresses an interest in the proposed project.

At the discretion of the Mayor, the City staff and the applicant may respond to any statement by the public.

The body conducting the hearing may exclude testimony or evidence that it finds to be irrelevant, immaterial or unduly repetitious.

At the sole discretion of the Mayor or chairperson conducting the hearing, an individual may be permitted to pose relevant questions to staff, the applicant or the body conducting the hearing, as directed by the Mayor or chairperson.

Closure of the Public Hearing. The City Council shall make a decision, or deference of decision if so desired.

Continuance of Hearing.

The body conducting the hearing may, on its own motion or at the request of any person, for good cause, continue the hearing to a fixed date, time and place. Except as required by the Texas Open Meetings Act no notice shall be required if a hearing is continued. If a public hearing is closed, no further public testimony shall be taken.

Additional Rules.

The body conducting the hearing may adopt additional rules of procedure and may apply such additional rules to govern the public hearing which are not inconsistent with this section.

SECTION 5.1.5

POST-DECISION PROCEDURES

Notification Required.

Within ten (10) business days following final action on any development application, the appropriate City Department shall provide written notification to the applicant of the decision of the City Council considering the request. If an application has been denied, the notification should include the reasons for denial if identified by Council as well as any information relating to reapplication procedures for the appropriate application.

Reapplication Following Denial.

Whenever any development application, with the exception of any plat application, is denied, the same type of development application for all or a part of the same property shall not be accepted for filing for a period of six (6) months after the date of denial unless the subsequent application involves a proposal that is substantially different from the previously denied proposal. For the purpose of this section, a request may be considered substantially different if the change is to a different zoning classification, there is a change in conditions relating to zoning principles of the property or surrounding properties or there is a change in the nature of the development of the property or surrounding properties. The City Manager or his/her designee shall resolve any questions concerning the similarity of the reapplication. The final decision-maker may, at its option, waive the six (6) month waiting period if, after due consideration of the matter at a scheduled and posted meeting, it is determined that denial of the request was based upon erroneous or omitted information, or if substantial new information pertaining to the request is discovered.

Amendments and Revisions to Approved Application.

Unless otherwise expressly provided by this Zoning Ordinance, any request to amend or revise an approved development application shall be considered a new application, which must be decided in accordance with the procedures governing the original application and the standards in effect at the time such new application is filed with the City.

Amendments Required.

Whenever a subsequent development application differs substantially from a previously approved development application to which the subsequent application must conform, the applicant shall submit an amended development application for the initial development application, which shall be decided prior to the subsequent application. The applicant’s failure to comply with this section shall result in denial of the subsequent application.

SECTION 5.1.6

ADMINISTRATION AND ENFORCEMENT

The City Manager or his/her authorized representative, shall administer and enforce the provisions of this Ordinance. If the City Manager or his/her authorized representative finds upon his/her own personal observation, or upon receipt of a complaint, that the provisions of this Ordinance are being violated, he/she shall immediately investigate and, when necessary, give written notice to the person(s) responsible to cease or correct such violation(s) immediately. Notice shall be delivered in person or by certified mail to the violator(s) or to any person owning or leasing a property where the violation is occurring. The City Manager or his/her authorized representative shall have the right to enter upon any premises at any reasonable time in conformance with local and state laws, for the purpose of making inspections of buildings or premises that may be necessary to carry out the duties in the enforcement of this Ordinance.

Stop Work Orders.

Whenever any building or construction work is being done contrary to the provisions of this Ordinance, the City Manager or his/her authorized representative shall have the authority to order the work stopped by notice in writing served on the property owner or the contractor doing the work or causing such work to be done, and any such person shall forthwith stop such work until authorized in writing by the City to proceed with such work. Failure to immediately stop work as provided herein shall constitute a violation of this Ordinance, in accordance with Section 1.5 and may incur penalties for such violation.

SECTION 5.1.7

SCHEDULE OF FEES, CHARGES AND EXPENSES

Until all applicable fees, charges and expenses have been paid in full, no action shall be taken on any zoning or development application or on any appeal.

(Ordinance 480-14 adopted 11/20/14; Ordinance 494-15, sec. III, adopted 5/21/15)

§ 5.2 SITE PLAN REVIEW PROCESS.

SECTION 5.2.1

PURPOSE OF SITE PLANS

This Section establishes a site plan review process for proposed nonresidential, mixed use and multifamily residential developments. The purpose of the review is to ensure efficient and safe land development, harmonious use of land, compliance with appropriate design standards, safe and efficient vehicular and pedestrian circulation, adequate parking and loading, and adequate water supply, drainage and stormwater management, sanitary facilities, coverage, and other utilities and services.

SECTION 5.2.2

APPLICABILITY

Site plan review and approval by the City Council shall be required for any Planned Development District or Specific Use Permit application. New construction or any enlargement of an existing structure exceeding 25% of the existing building footprint for all nonresidential, mixed use, single-family attached, and multifamily projects and structures may be approved administratively by the City Manager or his/her designee.

No building permit shall be issued for any of the above developments until a site plan and all other required engineering/construction plans are first approved by the City. No certificate of occupancy shall be issued until all construction and development conforms to the site plan and engineering/construction plans, as approved by the City.

SECTION 5.2.3

EXEMPTIONS AND EXCEPTIONS

Site plan review shall not be required for single-family detached residential developments.

SECTION 5.2.4

SITE PLAN SUBMISSION REQUIREMENTS

All required items and/or information for an application for a site plan must be received by the City Manager or his/her designee in order for the application to be considered complete, pursuant to Section 5.2.5. Incomplete submissions will not be reviewed until all deficient items and information have been received. The City will provide to the applicant not later than the 10th business day after the date the application is filed written notice of the failure that specifies the necessary documents or other information and the date the application will expire if the documents or other information is not provided. The site plan shall be prepared by a professional engineer (P.E.), land planner, architect or surveyor, at a scale no smaller than one inch equals one hundred feet (1" = 100'), and it shall clearly show in detail how the site will be constructed. The site plan shall include, but not be limited to the following:

An application form, provided by the City, with notarized signatures of the owner or his/her designated representative if the applicant is not the owner of the subject property.

Appropriate filing fee, as set forth in the currently adopted City Fee Schedule.

Verification that all taxes and assessments on the subject property have been paid.

Plans submitted shall be on sheets twenty-four inches by thirty-six inches (24" x 36") or, if approved by the City Manager or his/her designee, eleven inches by seventeen inches (11" x 17").

A title block within the lower right-hand corner of the site plan with the proposed name of the project/subdivision, the name and address of the owner/developer and the land planner, engineer[,] architect or surveyor responsible for the plan, the scale of the drawing (both written and graphic scale), the date the drawing was prepared, total site acreage, and the location of the property according to the abstract and survey records of Tarrant County, Texas;

A vicinity or location map that shows the location of the proposed development within the City, and in relationship to existing roadways;

The boundary survey limits of the tract and each proposed lot and scale distances with north clearly indicated;

The names of adjacent additions or subdivisions or the name of the owners of record and recording information for adjacent parcels of unplatted land, including parcels on the other sides of roads, creeks, etc.;

The existing zoning and existing/proposed uses on adjacent land; the location, width and names of all existing or platted streets or other public ways within or adjacent to the tract; any existing easements, with recording information; existing buildings; railroad rights-of-way; topography (contours at two-foot intervals) with existing drainage channels or creeks, including the 100-year floodplain, if applicable; any other important natural features, such as rock outcroppings, caves, wildlife habitats, etc.; and all substantial natural vegetation;

10.

Proposed strategies for tree preservation including showing individual trees or tree masses that will be preserved, and the techniques that will be used to protect them during construction;

11.

The layout and width (right-of-way lines and curb lines) of existing and proposed thoroughfares, collector streets and/or intersections, and specific configuration of proposed streets, lots and blocks, proposed driveways including driveway widths and distances between driveways, proposed median openings and left turn lanes on future divided roadways and existing and planned driveways on the opposite side of divided roadways must also be shown for coordination and sharing of future median openings;

12.

Specific locations and footprints of buildings, including but not limited to proposed nonresidential and residential densities; building heights, square footages (for multi-tenant or multi-purpose buildings, show square footage for each intended use), massing, orientation, loading/service areas (including proposed screening), recycling containers, compactors and dumpster enclosures (including proposed screening), pedestrian walkways, and parking areas (including parking ratio calculations); any proposed sites for parks, schools, public facilities, public or private open space; floodplains/drainageways; all proposed and existing utilities and easements; drainage structures; retention/detention ponds with proposed aesthetic treatments; screening walls; fences; signage; fire lanes and fire hydrants; lighting; visibility easements; and other pertinent development-related features;

13.

A landscape plan showing turf areas, tree types and sizes, screening walls, ornamental plantings, planting schedule (including species, planted height, spacing, container/caliper size, numbers of each plant material, etc.) any existing wooded areas, trees to be planted, and irrigation plans, if required; and

14.

Color building facade (elevation) plans showing elevations with any attached (wall-mounted) signage to be used, as determined appropriate by the City Manager or his/her designee.

15.

General layout for the required public improvements, such as water, wastewater, grading/storm drainage, water quality, fire lanes and hydrants, screening and landscaping, the quantity of which shall be determined by the City Manager or his/her designee.

16.

Reduced copies (11" x 17") of the site plan as required by the City Manager or his/her designee.

17.

One set of all site plan pages submitted to the City in a readily readable digital format.

18.

Any additional information/materials, such as plans, maps, exhibits, legal description of property, information about proposed uses, and other information deemed necessary by the City Manager or his/her designee in order to ensure that the development request is understood.

To ensure the submission of adequate information, the City is hereby empowered to maintain and distribute a separate list of specific requirements for site plan review applications. Upon periodic review, the City Manager or his/her designee shall have the authority to update such requirements for site plan and development review applications. It is the applicant’s responsibility to be familiar with, and to comply with, these requirements.

Extent of Area that should be Included in a Site Plan.

When the overall development project is to be developed in phases, the site plan area shall include only the portion of the overall property that is to be developed/constructed.

SECTION 5.2.5

LAPSE OF SITE PLAN APPROVAL

The approval of a site plan shall be effective for a period of two (2) years and shall thereafter lapse unless progress has been made on the construction of the project in accordance with the provisions of Section 245.005 of the Texas Local Government Code, as amended.

SECTION 5.2.6

EXTENSION AND REINSTATEMENT PROCEDURE

Before a site plan expires, the applicant may submit to the City a request to extend the time period of the site plan. The request will be considered by the City Council.

If no request for extension for a site plan is received, then the site plan will be considered null and void. Any new request for site plan approval shall be deemed a “new project”; shall be submitted with a new application form, with a new filing fee, and with new plans and materials in accordance with the procedures set forth in this Ordinance.

In determining whether to grant a request for extension, the City Council shall take into account the reasons for the lapse, the ability of the property owner to comply with any conditions attached to the original approval, and the extent to which development regulations would apply to the site plan at that point in time.

(Ordinance 480-14 adopted 11/20/14; Ordinance 494-15, sec. III, adopted 5/21/15)

§ 5.3 SPECIFIC USE PERMITS.

SECTION 5.3.1

PURPOSE AND INTENT

Nature of Specific Use.

A specific use is a land use which, because of its unique nature, is compatible with the permitted land uses in a given zoning district only upon a determination that the external effects of the use in relation to the existing and planned uses of adjoining property and the neighborhood can be mitigated through imposition of certain standards and conditions. This Section sets forth the standards used to evaluate proposed special uses and the procedures for approving Specific Use Permit applications.

Permit Required.

No specific use shall be established and no building permit shall be issued for any use designated as a specific use within any zoning district until a Specific Use Permit (SUP) is issued in accordance with the provisions of this Ordinance. An application for an SUP shall be accompanied by a detailed site plan prepared in the manner described in Section 5.2 of this Ordinance. The site plan shall illustrate the proposed use to be established, its relationship to adjoining properties, and how it meets the approval standards set forth in Section 5.2.

SECTION 5.3.2

STATUS OF SPECIALLY PERMITTED USES

The following general rules apply to all special uses:

The designation of a use in a zoning district as may be permitted by SUP in Section 4.12 of this Ordinance does not constitute an authorization or assurance that such use will be approved.

Approval of an SUP shall authorize only the particular use for which the SUP is issued.

No use authorized by an SUP shall be enlarged, extended or relocated, nor may the number of dwelling units be increased, unless an application is made for approval of a new Specific Use Permit.

Development of the use shall not be carried out until the applicant has secured all the permits and approvals required by these zoning regulations, the City Code of Ordinances, and any permits that may be required by regional, State or Federal agencies.

SECTION 5.3.3

APPLICATION FOR SPECIFIC USE PERMIT

Application Requirements.

An application for a Specific Use Permit may be submitted by the property owner or by the property owner’s designated representative to the City. The application shall be accompanied by a site plan prepared in accordance with the requirements of Section 5.2 of this Ordinance. If a base zoning district amendment is required or requested, such rezoning application shall accompany the application for a Specific Use Permit.

Subdivision Approval.

If the proposed use requires a division of or the platting of land, an application for the first step in subdivision approval shall be submitted in conjunction with the application for a Specific Use Permit. Approval of the Specific Use Permit shall not become effective until final approval of the subdivision application provided that, if the land is to be divided and developed in phases, the approval of the Specific Use Permit shall take effect upon final plat approval of the phase of the subdivision containing the property on which the special use is to be located.

SECTION 5.3.4

PROCEDURES FOR SPECIFIC USE PERMITS

City Council Action.

The City Council shall be the final decision-maker on applications for Specific Use Permits. Following a public hearing, the City Council shall approve, modify or deny the proposal for a Specific Use Permit in accordance with Section 5.1 of this Ordinance. If the appropriateness of the use cannot be assured at the location, the application for Specific Use Permit shall be denied as being incompatible with existing uses or with other uses permitted by right in the district.

SECTION 5.3.5

STANDARDS

Factors for Consideration.

When considering applications for a Specific Use Permit, the City Council, in rendering its decision on the application shall, on the basis of the concept plan/site plan and other information submitted, evaluate the impact of the special use on, and the compatibility of the use with, surrounding properties and neighborhoods to ensure the appropriateness of the use at a particular location. The City Council shall specifically consider the extent to which:

The proposed use at the specified location is consistent with the goals, objectives and policies contained in the adopted Comprehensive Plan;

The proposed use is consistent with the general purpose and intent of the applicable zoning district regulations;

The proposed use is compatible with and preserves the character and integrity of adjacent development and neighborhoods and, as required by the particular circumstances, includes improvements or modifications either on-site or within the public rights-of-way to mitigate development-related adverse impacts, including but not limited to:

Adequate ingress and egress to property and proposed structures thereon with particular reference to vehicular and pedestrian safety and convenience, and access in case of fire;

Off-street parking and loading areas;

Refuse and service areas;

Utilities with reference to location, availability, and compatibility;

Screening and buffering features to minimize visual impacts, and/or setbacks from adjacent uses;

Control of signs, if any, and proposed exterior lighting with reference to glare, traffic safety, economic effect, and compatibility and harmony with properties in the district;

Required yards and open space;

Height and bulk of structures;

Hours of operation;

Exterior construction material and building design; and

Roadway adjustments, traffic-control devices or mechanisms, and access restrictions to control traffic flow or divert traffic as may be needed to reduce or eliminate development-generated traffic on neighborhood streets.

The proposed use is not materially detrimental to the public health, safety, convenience and welfare, or results in material damage or prejudice to other property in the vicinity.

Conditions.

In approving the application the City Council may impose such additional conditions as are reasonably necessary to assure compliance with these standards and the purpose and intent of this Section, in accordance with the procedures in Section 5.1 of this Ordinance. Such additional conditions shall exceed the minimum standards contained herein or in any other applicable City Code or Ordinance, and they cannot relax or grant relief from any of the City’s minimum standards. Any conditions imposed shall be set forth in the ordinance approving the specific use, and shall be incorporated into or noted on the concept plan or site plan for final approval. The City Manager or his/her designee shall verify that the plan incorporates all conditions set forth in the ordinance authorizing the special use, and shall sign the plan to indicate final approval. The City shall maintain a record of such approved special uses and the site plans and conditions attached thereto.

Prohibition on Waivers and Variances.

The foregoing additional conditions shall not be subject to variances that otherwise could be granted by the Board of Adjustment nor may conditions imposed by the City Council subsequently be waived or varied by the BOA. In conformity with the authority of the City Council to authorize special uses, the City Council may waive or modify specific standards otherwise made applicable to the use by this Ordinance, to secure the general objectives of this Section.

SECTION 5.3.6

EXPIRATION AND EXTENSION

A Specific Use Permit shall automatically expire if a building permit is not issued and construction begun within 180 days of the granting of the Specific Use Permit; [or] the use has not begun operation (if no construction is required) within 180 days of the granting of the specific use permit. The City Council may extend the specific use permit for a period of 180 days if the applicant requests the extension prior to the expiration of the specific use permit.

SECTION 5.3.7

MINOR AMENDMENTS

Upon request of the applicant, the City Manager or his/her designee may authorize minor amendments to a Specific Use Permit so long as such minor amendments do not change the land use or substantially change the character, development standards, or design of the development as shown on the approved detailed plan. For purposes of this provision, a “substantial change” shall mean a change which will increase the number of proposed dwelling units, increase the floor-to-area ratio, size of structure, height, lot coverage, or number of stories or buildings, reduce lot, or yard size, decrease the amount of required off-street parking spaces, change types of buildings, setbacks, street access points, or lots, increase density, change traffic patterns, or alter the basic relationship of the proposed development to adjacent properties. The City Manager or his/her designee shall make such authorization only in writing and such document shall be placed in the ordinance file governing the specific plan.

SECTION 5.3.8

USE REGULATIONS

Uses allowed by SUP are specified in Section 4.12 Principal Permitted Uses.

(Ordinance 480-14 adopted 11/20/14; Ordinance 539-18, att. A, adopted 3/1/18)

§ 5.4 NONCONFORMING USES, LOTS AND STRUCTURES.

SECTION 5.4.1

GENERALLY

Within the districts established by this ordinance, or amendments that may later be adopted, there exists lots and uses of land, buildings and structures, uses of land and buildings in combination, and characteristics of use which were lawful before this ordinance was passed or amended, but which would be prohibited, regulated, or restricted under the terms of this ordinance or future amendments. It is the intent of this ordinance to permit these nonconformities to continue under regulations contained herein until they are removed, but not to encourage their survival. It is further the intent of this ordinance that such nonconformities shall not be enlarged upon, expanded, or extended, not be used as grounds for adding other buildings and structures or uses prohibited elsewhere in the same district.

SECTION 5.4.2

REPAIRS AND ALTERATIONS

Nonconforming uses are incompatible with permitted uses. Therefore, no nonconforming use of land or building, nonconforming lot or yard, or any nonconforming structure shall be enlarged, changed, altered or repaired except in conformance with the regulations contained in this article.

Repairs and alterations may be made to a nonconforming structure, provided that no structural alterations shall be made except those required by law or ordinance, unless the structure is changed to a conforming use and provided that no additional dwelling units shall be added where the nonconforming use results from there being more dwelling units on the lot than is permissible in the district in which the building is located. The Board of Adjustment shall have the authority after a hearing to grant extension of a building nonconforming as to uses not to exceed twenty-five percent (25%) of the ground area of the same in case of evident hardship, subject to the yard restrictions herein provided.

SECTION 5.4.3

USE

The lawful use of “land” existing at the time of the passing of this Ordinance, although such does not conform to the provisions hereof, may be continued, but if such nonconforming use is discontinued, any future use of said premises shall be in conformity with the provisions of this Ordinance.

SECTION 5.4.4

CHANGE OF USE

A nonconforming use, if changed to conforming use, may not thereafter be changed back to a nonconforming use. A nonconforming use, may not thereafter be changed unless to an equal or to a more restricted use.

SECTION 5.4.5

DISCONTINUANCE OR ABANDONMENT

If, at the effective date of this ordinance 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:

The legal nonconforming use does not cease due to discontinuance or abandonment;

The legal nonconforming 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 ordinance, unless provided for herein; or

The legal nonconforming 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 ordinance.

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 nonconforming use:

the closure or cessation of the nonconforming use for a period of one hundred twenty (120) consecutive days; or

the failure of the owner to repair the structure or property used to operate the nonconforming use within thirty (30) days after the chief building official or code enforcement officer has given the owner written notice that the building, structure or property is:

in an advanced stage of dilapidation, as determined by the City Manager or his/her designee;

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

otherwise unsafe for the continuation of the current use or occupancy.

For the purpose of this section, “discontinuance” shall be defined as follows:

When a legal nonconforming use has historically been operated on a continuous basis, a closure or cessation of a use for a period of one hundred eighty (180) consecutive days, irrespective of whether the owner has actual intent to abandon the use; or

When a legal nonconforming 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:

the structure or property upon or in which the use has been operated is closed or the nonconforming use ceases to operate for a period of one hundred eighty (180) consecutive days; or

the structure or property upon or in which the use has been operated is closed or the nonconforming use ceases to operate in a bona-fide manner during one or more normal and customary seasons or periods of operation during which the nonconforming use has historically been operated.

Administrative Exception Determination on Loss of Use Nonconformity:

Notwithstanding Subsection C above, the Administrator may determine that a nonconforming use may continue to operate beyond the discontinuance period of 180 days under the following conditions:

The structure and site where the nonconforming use operates was originally built for the nonconforming use and no other use can feasibly be accommodated due to the limitations of the existing structure and site; and

The existing site and structure shall not be expanded or improved other than routine maintenance as allowed in this section.

Any expansion over 25% of the existing structure or improvement to the existing site/structures over 50% of the replacement value of improvements on the site shall trigger the end of the use nonconformity.

Any appeals to the Administrator's decision shall be heard by the Board of Adjustment.

SECTION 5.4.6

EXTENSION

Upon evidence of hardship, the Board of Adjustment shall have the power to hear any appeals of the Administrator's decision based on Section 5.4.5.D above or if Section 5.4.5.D is not applicable, extend the time limits in Section 5.4.5 beyond six (6) months.

SECTION 5.4.7

DESTRUCTION

A building occupied by a nonconforming use that is destroyed by fire or the elements may not be reconstructed or rebuilt except to conform to provisions of this Ordinance. In the case of partial destruction by fire or other causes, not exceeding fifty percent (50%) of its value, the Building Official may issue a permit for reconstruction. If greater than fifty percent (50%) and less than total, the Board of Adjustment may grant permit for repair after public hearing, having due regard for 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 property.

SECTION 5.4.8

CERTIFICATE OF OCCUPANCY

A certificate of occupancy shall be issued for all nonconforming uses.

SECTION 5.4.9

CONSTRUCTION COMPLETION REQUIREMENT

Nothing herein contained shall require any change in the plans, construction or designated use of a building for which a legal building permit has been heretofore issued, provided such construction shall have been started and shall be diligently prosecuted to completion.

SECTION 5.4.10

NONCONFORMITY OF RECORD

All legally conforming platted lots and all legally constructed structures existing prior to the effective date of this ordinance shall be deemed to continue to be legally nonconforming as of the effective date of this ordinance. This provision shall apply even though such lot or structure fails to meet the minimum requirements for area, width, or both, as governed by the applicable area regulations for that particular zoning district; however, all other provisions of the applicable zoning district area regulations, such as setback distances, heights, and percent of lot coverage shall apply. Any voluntary change, alteration, or modification decreasing the area of any said lot or structure shall conform to these zoning regulations contained herein or be authorized by variance granted by the Board of Adjustment. A single-family residential nonconformity of record that is destroyed by fire or other natural disaster may be rebuilt to the original footprint by right.

SECTION 5.4.11

CONDITIONS FOR CONTINUATION

Any nonconforming use, structure or lot which lawfully existed as of the effective date of this ordinance and which remains nonconforming; any use, structure or lot which has become nonconforming due to the acquisition of property for the purposes of right-of-way use by a governmental agency as part of an approved project; and any use, structure or lot which has become nonconforming as a result of the adoption of this ordinance or any subsequent reclassification of zoning districts or other amendment to this ordinance, may be continued or maintained only in accordance with the terms of this Section.

SECTION 5.4.12

RIGHT TO PROCEED PRESERVED

Nothing contained in this Section is intended to alter any rights that may have accrued under prior regulations, pursuant to sections 43.002, and 245.001 to 245.007 of the Texas Local Government Code, as amended.

SECTION 5.4.13

AMORTIZATION OF NONCONFORMING LAND USES AND STRUCTURES

The City Council may initiate the process to amortize a nonconforming land use or structure by filing an application to the Board of Adjustment. All actions to discontinue a nonconforming use of land and structure shall be taken with due regard for the investment 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 property.

The City Council may require the discontinuance of nonconforming uses of land or structure under a plan whereby the full value of the structure and facilities can be amortized within a definite period of time, taking into consideration the general character of the neighborhood and the necessity for all property to conform to the regulations of this Subchapter.

Criteria for determining amortization period.

Before the Board of Adjustment may determine an amortization period, it must consider the following factors:

The owner’s capital investment in the structures on the property at the time the use became nonconforming;

The amount of the investment realized to date and the amount remaining, if any, to be recovered during the amortization period;

The life expectancy of the investment;

The existence or nonexistence of lease obligations, as well as any contingency clauses therein permitting termination of such leases;

Removal costs that are directly attributable to the establishment of a termination date; and

Other costs and expenses that are directly attributable to the establishment of a termination date.

If the City Council establishes a termination date for a nonconforming use, the use must cease operations on that date and the owner may not operate it after that date unless it becomes a conforming use.

(Ordinance 480-14 adopted 11/20/14; Ordinance 539-18, att. A, adopted 3/1/18; Ordinance 607-23 adopted 1/19/2023)