ARTICLE 14.01: GENERAL PROVISIONS

Zoning ordinance guiding principles.

The zoning regulations and districts as herein established have been made in accordance with the comprehensive plan for the purpose of promoting the health, safety, morals and the general welfare of the city.

Zoning ordinance intent.

The zoning regulations and districts have been designed to lessen the congestion in the streets; to secure safety from fire, panic and other dangers; to ensure adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate the adequate provision of transportation, water, sewerage, schools, parks and other public requirements; and to protect and preserve places and areas of historical and cultural importance and significance and the general welfare of the community.

Zoning ordinance considerations.

The zoning regulations and districts have been made with reasonable consideration, among other things, for the character of the district, and its peculiar uses specified; and with a view of conserving the value of buildings and encouraging the most appropriate use of land throughout the city consistent with the comprehensive plan. The comprehensive plan has been used as a guide to develop the regulations within this zoning ordinance.

(d)

Zoning ordinance reference documents.

The city council hereby delegates all future authority to draft, amend, approve and adopt any and all zoning ordinance reference documents to the city manager. For the purposes of this section, the term "zoning ordinance reference documents" shall refer to the development application checklist referenced herein. Zoning ordinance reference documents may be drafted, amended, approved or adopted, from time to time, at the discretion and determination of the city manager. As the zoning ordinance reference documents are drafted, amended, approved or adopted by the city manager, said standards shall thereafter have the same force of law and effect as if originally adopted hereby.

(e)

Short title.

This chapter shall be known and may be cited as the city's "zoning ordinance."

(f)

Compliance with city plans and ordinances required.

Compliance with all city ordinances pertaining to the subdivision and development of land, and the comprehensive plan (where applicable), shall be required prior to approval of any application pursuant to this zoning ordinance. All such ordinances and the comprehensive plan shall be construed to mean those documents as they exist or may be amended. It is the property owner's responsibility to be familiar with, and to comply with, city ordinances, the comprehensive plan and the provisions of this zoning ordinance. Applicable city ordinances and plans with which all applications must comply [and] include, but are not limited to, the following:

Comprehensive plan (including all associated maps and plans);

Subdivision ordinance;

Building codes, including the International Fire Code;

Other applicable portions of the Code of Ordinances;

Impact fee ordinance;

Engineering documents, including the engineering design manual;

(7)

Federal, state and local regulations.

(Ordinance 6555 adopted 12/5/2022)

§ 14.01.002 Official zoning map.

Zoning districts shown on the official zoning map.

The boundaries of zoning districts set out herein are delineated on the official zoning map of the city, adopted as part of this zoning ordinance as fully as if the same were forth herein in detail.

Official zoning map.

Official zoning map filing.

One original of the official zoning map shall be filed in the office of the city clerk. This document shall be the "official zoning map" and shall bear the signature of the mayor and attestation of the city clerk.

Official zoning map management.

The official zoning map shall not be changed in any manner except through amendment by the city council. In case of any questions, the official zoning map, together with amending ordinances, shall be controlling.

Current zoning district map.

The development services director maintains the current zoning district map. An additional copy of the original zoning district map shall be placed in the office of development services. The copy shall be used for reference and shall be maintained up-to-date by posting thereon all subsequent amendments and shall be identified as the current zoning map.

In order to provide and maintain a current-to-date and accurate map of all zoning district boundaries, the city shall maintain electronic mapping files or other similar geographic information system (GIS) files of the official zoning map with all approved zoning amendments.

In case of any question involving a district designation within the city, the updated copy of the official zoning map on file in the development services office is presumed correct, and the person challenging the accuracy of that copy has the burden of presenting the official zoning map, together with the ordinances amending the map, to prove the inaccuracy of the updated copy.

§ 14.01.003 Zoning district boundaries.

Reproductions for informational purposes may be made of the official or current zoning map.

(Ordinance 6555 adopted 12/5/2022)

The district boundary lines shown on the official zoning map are usually along streets, alleys, property lines, or extensions thereof. Where uncertainty exists as to the boundaries of districts as shown on the official zoning map, the following shall apply.

Centerlines.

Boundaries indicated as approximately following the centerline of streets, highways or alleys shall be construed to follow such centerline.

Platted lot lines.

Boundaries indicated as approximately following platted lot lines shall be construed as following such lot lines.

City limits.

Boundaries indicated as approximately following city limits shall be construed as following city limits.

Railroad lines.

Boundaries indicated as following railroad lines shall be construed to be midway between the right-of-way lines.

Shore lines.

Boundaries indicated as following shore lines shall be construed to follow such shore lines, and in the event of change in the shore line shall be construed as moving with the actual shore line; boundaries indicated as approximately following the centerline of streams, lakes, or other bodies of water shall be construed to follow such centerline, and in the event of change in the centerline, shall be construed to move with such centerline.

§ 14.01.004 Application of district regulations.

Parallel to or extensions of features.

Boundaries indicated as a parallel to or extensions of features indicated in subsections (1) through (5) above shall be so construed. Distances not specifically indicated on the original zoning maps shall be determined by the scale of the map.

(7)

Vacated public way.

Whenever any street, alley, or other public way is vacated by official action of the city council or whenever such area franchised for building purposes, the vacated area shall be reasoned according to section 14.06.005 (amendments to the zoning ordinance/district and administrative procedures).

(8)

Boundary as a condition of zoning approval.

The zoning classification applied to a tract of land adjacent to a street shall extend to the centerline of the street, unless as a condition of zoning approval, it is stated that the zoning classification shall not apply to the street.

(9)

Zoning ambiguity.

Where physical features on the ground conflict with information shown on the official zoning 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 (1) through (8) above, the property shall be considered as classified, R-A (residential agricultural) district, in the same manner as provided for newly annexed territory and the issuance of a building permit and the determination of permanent zoning shall be in accordance with the provisions provided in section 14.01.006 (zoning upon annexation) for temporarily zoned areas.

(Ordinance 6555 adopted 12/5/2022)

The regulations set by this zoning ordinance within each district shall be minimum regulations and shall apply uniformly to each class or kind of structure or land, except as hereinafter provided:

No building, structure or land shall hereafter be used or occupied, and no building or structure or part thereof shall hereafter be erected, constructed, reconstructed, moved or structurally altered unless in conformity with all of the regulations herein specified for the district in which it is located.

No building or other structure shall hereafter be erected or altered:

To exceed the height;

To accommodate or house a greater number of families;

To occupy a greater percentage of lot area;

To have narrower or smaller rear yards, front yards, side yards, or other open spaces than herein required; or in any other manner contrary to the provisions of this zoning ordinance.

No part of a yard or other open space, or off-street parking or loading space required about or in connection with any building for the purpose of complying with this zoning ordinance shall be included as part of a yard, open space, or off-street parking or loading space similarly required for any other building.

§ 14.01.005 Compliance required, interpretation and rules of construction.

No yard or lot existing at the time of passage of this zoning ordinance shall be reduced in dimension or area below the minimum requirements set forth herein. Yards or lots created after the effective date of this zoning ordinance shall meet at least the minimum requirements established by this zoning ordinance.

(Ordinance 6555 adopted 12/5/2022)

Compliance required.

Applicability.

Compliance with this zoning ordinance shall apply to all land, buildings, structures or appurtenances located within the city which are hereafter:

Occupied;

Used;

Erected;

Altered;

Removed;

Placed;

Demolished; or

Converted.

Compliance with zoning district.

The land, buildings, structures, or appurtenances described in subsection (1) above shall be in conformance with the zoning regulations prescribed for the zoning district in which such land or building is located as hereinafter provided or subject to penalties as per section 14.09.003 (penalties for violations).

Interpretation.

Restrictiveness.

Where the regulations imposed herein are either more restrictive than comparable conditions imposed by any other provision of any other applicable law, ordinance, resolution, rule or regulation of any kind, the regulations which are more restrictive and impose higher standards are the requirements that shall govern.

Abrogation.

The provisions of these regulations are not intended to abrogate any easement, covenant or other private agreement, provided that where the requirements of these regulations are more restrictive or impose higher standards or regulations than such easement, covenant or other private agreement, the requirements of these regulations shall govern.

Cumulative effect.

The provisions of these regulations are cumulative and additional limitations upon all other laws and ordinances heretofore passed or which may be passed hereafter governing any subject matter set forth in the provisions of these regulations.

Error correction.

In the event that any property or zoning district set forth on the official zoning map as provided in section 14.01.002 (official zoning map) is misnamed, designated incorrectly, the boundaries are incorrect or the property is omitted, in part or in whole, the official zoning map may be amended and/or supplemented according to the following:

Applicants.

The property owner of said tract, the city council, or the planning and zoning commission may submit an application to the director of development services to initiate the error correction process.

Process.

The error correction shall be processed as a zoning map or text amendment according to section 14.06.005 (amendments to the zoning ordinance/district and administrative procedures).

Director authority to interpret the zoning ordinance.

Unless specified within a section, the director of development services shall have the authority to interpret and enforce this zoning ordinance.

A person aggrieved by the director of development services interpretation may appeal the interpretation to the board of adjustment pursuant to section 14.06.010 (appeals and the appeal process).

Compliance required.

When any portion of this Zoning Ordinance is expressly contradicted by state or federal law, or when requiring adherence to this Zoning Ordinance would result in a violation of state or federal law, City staff, in consultation with the City Attorney, may waive compliance with the relevant portion of this Zoning Ordinance.

Rules of construction.

The language set forth in these regulations shall be interpreted in accordance with the following rules of construction.

Number.

The singular number includes the plural and the plural the singular.

Tense.

The present tense includes the past and future tenses and the future the present.

Mandatory and permissive language.

The word "shall" and "must" are mandatory while the word "may" is permissive.

Gender terms.

The masculine gender includes the feminine and neuter.

Parentheses.

Any word appearing in parentheses directly after a word herein defined shall be construed in the same sense as that word.

Conflicts.

If there is an expressed conflict:

The text of this zoning ordinance controls over the charts or any other graphic display in this zoning ordinance; and

The use regulations control over the district regulations in this zoning ordinance.

(Ordinance 6555 adopted 12/5/2022; Ordinance 6898 adopted 11/17/2025)

§ 14.01.006 Zoning upon annexation.

All territory hereinafter annexed to the city shall be classified as R-A (residential agricultural). The procedure for establishing permanent zoning on annexed territory shall conform to the procedure set forth in section 14.06.005 (amendments to the zoning ordinance/district and administrative procedures).

Rules of newly annexed territory classified as the residential agricultural district.

In an area classified as R-A (residential agricultural) district:

Building permit or certificate of occupancy required.

No person shall erect, construct, proceed or continue with the erection or construction of any building or structure or cause the same to be done in any newly annexed territory to the city without first applying for and obtaining a building permit or certificate of occupancy from the chief building official.

Limited permits within newly annexed land.

No permit for the construction of a building or use of land shall be issued by the chief building official other than a permit which will allow the construction of a building or use permitted in the R-A (residential agricultural) district, unless and until such territory has been classified in a zoning district other than the R-A (residential agricultural) district, by the city council in the manner prescribed by law except as provided in subsection (C) below.

§ 14.01.007 Nonconforming uses and structures.

Application for a building permit or certificate of occupancy within newly annexed land.

(i)

Except as provided in subsection (C)(ii) below, a building permit shall be approved if the applicant shows the following:

The use was already legally operating on the date the annexation proceedings were initiated for the property; or

The use was not already operating on the effective date of annexation, but was planned for the property before the 90th day before the effective date of annexation, and:

One or more licenses, certificates, permits, approvals, or other form of authorization by a governmental entity were required by law for the planned land use; and

A completed application for the initial authorization was filed with the governmental entity before the date the annexation proceedings were instituted. For the purpose of this section, a completed application is filed if the application includes all documents and other information designated as required by the governmental entity in a written notice to the applicant. For the purposes of this section, the date the annexation proceedings were instituted means the date the city council approves the ordinance annexing the property.

(ii)

Notwithstanding anything to the contrary in this zoning ordinance, a building permit shall not be issued if the use in the annexed area falls under one of the categories set forth in section 43.002(c) of the Texas Local Government Code and such use is prohibited by city ordinance or by the city charter.

(iii)

If a use described in subsection (i) above does not comply with the zoning for the property, such uses shall be allowed to continue as a nonconforming use. Nothing shall prevent the city from amortizing a nonconforming use even if it existing or was planned for the property prior to the institution of annexation proceedings. The board of adjustment amortizes a nonconforming use only if they first determine the nonconforming use is a nuisance and/or that the nonconforming use presents a risk of imminent destruction of property or injury to persons. Pursuant to section 43.002(c) of the Texas Local Government Code, such regulations are expressly enforceable against a use even if it existed or was planned prior to the institution of annexation proceedings.

(iv)

The property owner has a right to appeal the planning and zoning commission's decision to city council, if an appeal is submitted to the director of development services in writing within ten (10) calendar days after the planning and zoning commission voted and made their determination in open session. After receiving and reviewing the appeal application of the planning and zoning commission decision, the city council may, by majority vote, authorize the issuance of a building permit or certificate of occupancy or may disapprove the application pending permanent zoning.

(Ordinance 6555 adopted 12/5/2022)

Purpose.

It is the declared purpose of this section that nonconforming uses, lots and structures be eliminated and be required to comply with the regulations of the zoning ordinance of the city, having due regard for the property rights of the persons affected, the public welfare and the character of the surrounding area. This section also establishes certain regulations respecting private property rights for the allowance and alteration of uses, lots and/or structures that do not conform to currently applicable regulations, but which have been in continuous use and were in conformance with the regulations in place at the time of their inception and have been rendered nonconforming due to a change in the applicable regulations.

Nonconforming status.

A nonconforming status shall exist under the following provisions of this chapter:

When a use, lot or structure, which does not conform to the current regulations of this chapter, was in existence and lawfully operating prior to December 5, 2022, and has been operating since without discontinuance.

When a use, lot or structure does not conform to the current regulations of this chapter, but was legally established at a prior date when the use, lot or structure was in conformance with applicable regulations and such use, lot or structure has been in continuous use or operation since its establishment.

When a use, lot or structure, which does not conform to the current regulations of this chapter, was legally established prior to and in existence at the time of annexation to the city, and has been operating since without discontinuance.

Burden to establish legal nonconformity.

The burden of demonstrating that any use, lot or structure is a legal nonconformity as defined by this section shall lie with the owner(s) or the proponent of such purported nonconformity.

(d)

Continuing lawful use of property and structures.

Any nonconforming use, lot or structure may be continued for definite periods of time as indicated hereinbelow subject to the board of adjustment's power of amortization:

Uses.

Nonconforming uses may continue to operate indefinitely unless the use ceases to operate for a period longer than 60 days. If a nonconforming use ceases to operate for a period longer than 60 days, the nonconforming use shall be deemed permanently abandoned. The nonconforming use shall not thereafter be renewed or instituted on that property or another property in any district which does not permit the abandoned use, unless otherwise approved by the board of adjustment. For the purposes of this paragraph, the phrase "ceases to operate" shall mean to intentionally terminate operations of the nonconforming use. Any nonconforming use that does not involve a permanent type of structure and which is moved from the property shall be deemed permanently abandoned.

A nonconforming use may not be replaced by or changed to another nonconforming use.

The board of adjustment shall have the authority to reinstate the nonconforming status of a use if the board finds there was clear intent not to abandon the use even though the use was discontinued for more than 60 days. The failure of the owner and/or operator to remove on-premises signs related to the nonconforming use shall not be sufficient, as the sole evidence presented by the applicant, to establish a clear intent or an exigent circumstance not to abandon the use.

Structures.

Nonconforming structures may be occupied by conforming uses and may be repaired and maintained to preserve or extend their usability.

Structures conforming to all currently applicable regulations may be constructed on nonconforming lots provided that all setbacks and yard areas are observed.

Nonconforming structures may be relocated within the same lot so long as no existing nonconformity is exacerbated.

Exception: Upon application, the Director may grant an exception to applicable setback requirements under this chapter for a nonconforming structure provided that the Director finds the exception would not adversely affect the public health or safety. If an exception is granted under this subsection, the city may approve a building permit, plat, replat or site plan for an otherwise conforming structure or lot on the property that is the subject of the exception, notwithstanding any such applicable setback requirements. The approval of an exception under this subsection shall not expand any nonconforming rights that would not otherwise apply in the absence of the exception.

Lots.

Any nonconforming lot may be replatted so long as the existing nonconformities of the lot are not exacerbated by the replat and the size of the nonconforming lot, including its various dimensional components other than lot coverage, is not reduced.

Lots containing nonconforming structures may be replatted so long as the nonconformities of the structure are not exacerbated by the replat and the size of the nonconforming lot, including its various dimensional components other than lot coverage, is not reduced.

Certain uses and lots in non-residential zoning districts existing on or before December 5, 2022.

This subsection (d)(4) shall apply only to certain uses and lots in existence on or before December 5, 2022.

Single-family or two-family residential uses located in non-residential districts may be improved, maintained or rebuilt.

Single-family or two-family dwellings may be constructed on any vacant lot(s) located within a residential subdivision for which such vacant lot was originally platted solely for single-family or two-family dwellings.

Any limitation on the construction or reconstruction of a single-family or two-family residential use pursuant to subsection (f) shall not apply to single-family or two-family residential uses which meet the criteria in subsections (d)(4)(A)–(d)(4)(C) above.

(e)

Expansion of nonconforming uses or structures.

A nonconforming use or structure shall not be expanded or increased, except as follows:

A nonconforming use located within a building may be expanded throughout the existing building, provided:

No alterations to the building are required by ordinance to accommodate the expansion of the nonconforming use; and

The number of dwelling units in said building is not increased.

The minimum single-family residential lot width, depth, and/or area for the various residential zoning districts shall be in accordance with their respective district's standards, except that a lot having less width, depth, and/or area than herein required, and which lot was a lot of record prior to the adoption of this chapter, may be used for a single-family residential use.

In the central business district, a nonconforming structure may be altered or enlarged, provided that such alteration or enlargement shall neither create any new nonconformity nor shall increase the degree of the existing nonconformity of all or any part of such structure. An alteration for a non-air-conditioned space (e.g. patio, porch, roof terrace, balcony, arcade) shall be allowed under any circumstance.

(f)

Destruction of structure by fire, the elements, or other cause.

Subject to the provisions of subsection (d)(4) above, if a nonconforming structure is destroyed by fire, the elements, or other cause, it may not be rebuilt except to conform to the provisions of this chapter. A restoration or reconstruction in violation of this subsection immediately terminates the right to occupy the nonconforming structure except as specifically provided otherwise hereinbelow.

Partial destruction.

In the case of partial destruction of a nonconforming structure where the damage to the structure represents less than 50 percent of its total appraised value as determined by reference to the Grayson County Appraisal District's valuation of the structure in question for the tax-year of such destruction ("appraisal"), reconstruction will be permitted to restore the nonconforming structure to its previously existing condition.

The nonconforming structure may only be restored or reconstructed so as to have the same, but not greater, height, shape, and floor area that it had immediately prior to the damage or destruction. In addition, a nonconforming structure that is located in a historically significant area or which is a significantly important building may also only be restored or reconstructed so as to have the same appearance that it had immediately prior to the damage or destruction. The building official shall estimate the height, shape, floor area, and when applicable the appearance of the structure immediately prior to the damage or destruction, and shall consult with the property owner, if necessary, to make a determination. Should the property owner not agree with the determination of the building official, the property owner may appeal the determination of the building official to the board of adjustment, in accordance with this chapter.

Total destruction.

If a nonconforming structure is totally destroyed by fire, the elements, or other cause, it may not be rebuilt unless it adheres to all then applicable regulations. Total destruction for the purposes of this section shall mean destruction of 50 percent or more of the structure's total appraised value as determined by reference to the Grayson County Appraisal District's Appraisal.

Multifamily residential destruction.

In the case of the destruction of a multifamily residential structure or development that is nonconforming, the following shall apply:

The nonconforming structure(s) may be restored or reconstructed so as to have the same, but not greater, height, shape and floor area than it had immediately prior to the damage or destruction if the damage to the structure(s) represents less than 50 percent of its appraised value, as determined by reference to the Grayson County Appraisal District's Appraisal. In addition, a nonconforming structure that is located in a historically significant area or which is a significantly important building may also only be restored or reconstructed so as to have the same appearance that it had immediately prior to the damage or destruction if the damage to the structure(s) represents less than 50 percent of its appraised value, as determined by the Grayson County Central Appraisal District's Appraisal.

The nonconforming structure(s) may be restored or reconstructed so as to have the same, but not greater, height, shape, and floor area than it had immediately prior to the damage or destruction if the damage to the structure(s) equals or exceeds 50 percent of its appraised value, as determined by the Grayson County Appraisal District's Appraisal, but the damage to the structure(s) represents less than 50 percent of the appraised value of the overall development, as determined by the Grayson County Appraisal District's Appraisal. In addition, a nonconforming structure that is located in a historically significant area or which is a significantly important building may also only be restored or reconstructed so as to have the same appearance that it had immediately prior to the damage or destruction if the damage to the structure(s) equals or exceeds 50 percent of its appraised value, as determined by the Grayson County Appraisal District's Appraisal, but the damage to the structure(s) represents less than 50 percent of the appraised value of the overall development, as determined by the Grayson County Appraisal District's Appraisal.

The nonconforming structure(s) must be rebuilt to all currently applicable regulations if the damage to the structure(s) equals or exceeds 50 percent of its appraised value, as determined by the Grayson County Appraisal District's Appraisal, and the damage to the structure(s) equals or exceeds 50 percent of the appraised value of the overall development, as determined by the Grayson County Appraisal District's Appraisal.

The building official shall estimate the height, shape and floor area and, when applicable, the appearance of the structure immediately prior to the damage or destruction, and shall consult with the property owner, if necessary, to make a determination. Should the property owner not agree with the determination of the building official, the property owner may appeal the determination of the building official to the board of adjustment, in accordance with this chapter.

(g)

Amortization of nonconforming uses.

Request to establish compliance date.

The city council, by a simple majority vote, may request that the board of adjustment consider establishing a compliance date for a nonconforming use. Upon receiving such a request, the board shall hold a public hearing to determine whether continued operation of the nonconforming use will have an adverse effect on nearby properties or the community welfare. Notice of the public hearing shall be in the manner established in section 14.06.006(a)(6). If, based on the evidence presented at the public hearing, the board determines that continued operation of the nonconforming use will have an adverse impact on nearby properties, it shall call for a second public hearing to establish a compliance date for the nonconforming use.

Factors to be considered.

The board of adjustment shall consider the following factors when determining whether continued operation of the nonconforming use will have an adverse effect on nearby properties or the community welfare:

The comprehensive plan;

The character of the surrounding or nearby properties;

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

The manner in which the nonconforming use is being conducted;

(E)

The hours of operation of the use;

(F)

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

(G)

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

(H)

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

(I)

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

(J)

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

Determination of amortization period.

If the board of adjustment determines that continued operation of the nonconforming use has an adverse effect on nearby properties or the community welfare, it shall hold a second public hearing, in accordance with the law, to set a compliance date for the nonconforming use under a plan whereby the owner's actual investment in the use before the time that the use became nonconforming can be amortized within a definite time period. Notice of the second public hearing shall be in the manner established in section 14.06.006(a)(6).

The board of adjustment shall request and shall have the authority to require, through the issuance of a subpoena, the owner to produce the financial documentation and records within its possession, custody or control (collectively, "documents") relating to the factors listed in subsection (3)(E) below. The owner shall provide to the board such documents at least 30 days before the second public hearing.

The board of adjustment shall also have the authority to request that the owner allow the city and its representatives or experts reasonable access to, upon and about the property on which the nonconforming use in question is situated together with a reasonable amount of time to examine, photograph, videotape and inspect all aspects of the nonconforming use including, but not limited to, the property, structure, fixtures, assets, records, architectural drawings and all appurtenances thereto relating to the factors listed in subsection (3)(E), below (collectively, the "physical inspection"). The owner shall cooperate with the city to schedule a date and time period that is acceptable to both the owner and the city to provide the city such reasonable access together with a reasonable amount of time to allow for the physical inspection at least 30 days before the second public hearing.

If the owner does not provide the board any requested documents or fails to cooperate with the board in allowing the city the ability to perform the physical inspection, the board of adjustment is authorized to make its determination of a compliance date based upon any reasonably available public records, comparisons to physical inspection of one or more other similar uses, as well as public or expert testimony at the hearing. Failure or refusal by owner to provide any requested documents or to provide reasonable accommodation to perform a physical inspection shall not prevent the board of adjustment from setting a compliance date. In addition, owner's failure or refusal to provide any requested documents or to provide reasonable accommodation to perform a physical inspection shall constitute the owner's waiver of any and all rights to challenge the qualifications of any witness providing testimony, opinions or evidence of any kind or nature to the board submitted to the board for its consideration in establishing a compliance date. Owner's failure or refusal to provide any requested documents or to provide reasonable accommodation to perform a physical inspection shall also result in the owner's waiver of any and all rights to challenge any evidence, information, testimony, theories, conclusions, analysis, opinions and results submitted to the board for its consideration in establishing a compliance date.

(E)

The board of adjustment shall provide a compliance date for the nonconforming use under a plan whereby the owner's actual investment in the use before the time that the use became nonconforming can be amortized within a definite time period. The following factors shall be considered by the board in determining a reasonable amortization period:

(i)

The owner's capital investment in structures, fixed equipment and other assets (excluding inventory and other assets that may be feasibly transferred to another site) on the property before the time the use became nonconforming;

(ii)

Any costs that are directly attributable to the establishment of a compliance date, including demolition expenses, relocation expenses, termination of leases and discharge of mortgages;

(iii)

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

(iv)

The anticipated annual recovery of investment, including net income and depreciation; and/or

(v)

A reasonable wind-up period for the nonconforming use.

Compliance requirement.

If the board establishes a compliance date for a nonconforming use, the use must cease operations on that date and it may not operate thereafter unless such operations constitute a conforming use.

For the purposes of this section, "owner" means the owner of the nonconforming use at the time of the board of adjustment's determination of a compliance date for the nonconforming use.

(h)

Decisions that cannot be immediately appealed.

A decision by the board of adjustment to establish a compliance date is not a final decision and cannot be immediately appealed.