Item 4ECITY OF
SOUTHLAKE
MEMORANDUM
November 10, 2010
To: Shana Yelverton, City Manager
From: Ken Baker, AICP — Director of Planning & Development Services
Subject: Ordinance No. 480 -BBBB, Amendment to the City of Southlake
Comprehensive Zoning Ordinance No. 480, as it pertains to
Termination or Amortization of Nonconforming Uses
Action
Requested: City Council approval of a first reading of Ordinance 480 -BBBB,
proposed changes to the City of Southlake Comprehensive Zoning
Ordinance No. 480, as it pertains to Termination or Amortization of
Nonconforming Uses.
Background
Information: The purpose of this amendment is to better define the process and
procedures for the termination or amortization of nonconforming
uses.
Financial
Considerations: None.
Strategic Link: Safety and Security and Quality Development.
Citizen Input/
Board Review: A public hearing was held by the Planning & Zoning Commission
on November 4, 2010. No public comment was received.
Legal Review: This ordinance was prepared and reviewed by the by the City
Attorney.
Alternatives: Recommend modifications to the proposed amendment or move
forward with the amendment as presented.
Supporting
Documents: Ordinance No. 480 -BBBB "Redline - Strike Out" Version
Ordinance No. 480 -BBBB
P & Z ACTION: November 4, 2010; Approved (7 -0) noting that language in Section
6.10 (b) 3 will be changed to state "should be equal to or greater
than fifty (50) percent."
Ordinance 480 -BBBB
"Redline - Strike Out" Version
SECTION 6
NONCONFORMING USES
(As amended by Ordinance No. 480 -N & 480 -QQ)
(As further amended by Ordinance No. 480 -WW)
(As further amended by Ordinance No. 480 -BBBB)
6.1 INTENT - Within the districts established by this ordinance or amendments thereto that
may later be adopted, there exist lots, structures, and uses of land and structures 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 (whether by the same or different owners or tenants) until they are removed,
but not to encourage their survival. Such uses are declared by this ordinance to be
incompatible with permitted uses in the districts involved. It is further the intent of this
ordinance that nonconformities shall not be enlarged upon, expanded or extended, nor
be used as grounds for adding other structures or uses prohibited elsewhere within the
same district. A nonconforming use of a structure or land shall not be extended or
enlarged after passage of this ordinance by the addition of uses of a nature which would
be prohibited generally in the district involved.
6.2 EXISTING BUILDING PERMITS - To avoid undue hardship, nothing in this ordinance
shall be deemed to require a change in the plans, construction, or designated use of any
building or land development project for which a building permit was lawfully issued no
more than six months prior to the date of adoption or amendment of this ordinance.
Construction on a building permit issued prior to the adoption of this ordinance must be
begun within six months of the adoption date and must be completed within two years of
adoption as under Section 3.5, "Expiration of Building Permit." Such permit shall not be
renewed or extended without all other conditions of this zoning ordinance having been
met.
6.3 SIZE NONCONFORMITY OF LOTS OF RECORD - In any district in which single - family
dwellings or commercial buildings are permitted, notwithstanding limitations imposed by
other provisions of this ordinance, a single - family dwelling or commercial building and
customary accessory buildings may be erected on any single lot at the effective date of
adoption or amendment of this ordinance where zoning under this ordinance is
otherwise proper. This provision shall apply even though such lot fails to meet
requirements for width or area, or both, that are generally applicable in the district,
provided that yard dimensions and other requirements not involving area or width, or
both, of the lot shall conform to the regulations for the district in which such lot is located.
Variance of yard requirements shall be obtained only through action of the Board of
Adjustment.
Nothing in the above paragraph shall apply to a mobile home previously legally
permitted and used or occupied as a residential dwelling on any tract of land within the
city. Permits for use and occupancy for the replacement of such mobile homes with
HUD -code manufactured homes is authorized. (as amended by Ord. 480 -QQ)
6.4 NONCONFORMING USES OF LAND - Where, at the effective date of adoption or
amendment of this ordinance, lawful use of land exists that is made no longer
permissible under the terms of this ordinance as enacted or amended, such use may be
continued, so long as it remains otherwise lawful, subject to the following provisions:
a. No such nonconforming use shall 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;
b. A nonconforming use, if changed to a conforming use, may not thereafter be
changed back to a nonconforming use. A nonconforming use, if changed to a
more restrictive nonconforming use, may not thereafter be changed except to an
equal or a more restricted use;
No such nonconforming use shall be moved in whole or in part to any other
portion of the lot or parcel occupied by such use at the effective date of adoption
or amendment of this ordinance;
d. No additional structures shall be erected in connection with such nonconforming
use of land.
6.5 NONCONFORMING STRUCTURES - Where a lawful structure exists at the effective
date of this ordinance or amendment thereof that could not be built under the terms of
this ordinance by reason of restrictions on area, lot coverage, height, yards, or other
characteristics of the structure or its location on the lot, such structure may be continued
so long as it remains otherwise lawful, subject to the following provisions:
a. Such structure may not be enlarged in a way which increases its nonconformity;
b. Such structure may not be altered in a way which increases its nonconformity;
Should such structure be moved for any reason for any distance whatever, it
shall thereafter conform to the regulations of the district in which it is located after
it is moved.
Nothing in the above paragraph shall apply to a mobile home previously legally
permitted and used or occupied as a residential dwelling on any tract of land within the
city. Permits for use and occupancy for the replacement of such mobile homes with
HUD -code manufactured homes is authorized. (as amended by Ordinance 480 -QQ)
6.6 NONCONFORMING USES OF STRUCTURES - If a lawful use of a structure exists at
the effective date of adoption or amendment of this ordinance, that would not be allowed
in the district under the terms of this ordinance, the lawful use may be continued so long
as it remains otherwise lawful, subject to the following provisions:
a. No existing structure devoted to a use not permitted by this ordinance in the
district in which it is located shall be enlarged, extended, constructed,
reconstructed, moved, or structurally altered except in changing the use of the
structure to a use permitted in the district in which it is located;
b. A nonconforming use, if changed to a conforming use, may not thereafter be
changed back to a nonconforming use. A nonconforming use, if changed to a
more restrictive nonconforming use, may not be thereafter changed except to an
equal or to a more restricted use;
C. Any nonconforming use may be extended throughout any parts of a structure
which were manifestly arranged or designed for such use at the time of adoption
or amendment of this ordinance, but no such use shall be extended to occupy
any land outside such structure.
6.7 REPAIRS AND MAINTENANCE - On any building devoted in whole or in part to any
nonconforming use, work may be done in any period of 12 consecutive months on
ordinary repairs, or on repair or replacement of nonbearing walls, fixtures, wiring or
plumbing, to an extent not exceeding twenty -five percent (25 %) of the current
replacement value of the building, provided that the cubic content of the building as it
existed at the time of passage or amendment of this ordinance shall not be increased.
If a building or portion of a building containing a nonconforming use becomes physically
unsafe or unlawful due to lack of repairs and maintenance, and is declared by any duly
authorized City official to be unsafe or unlawful by reason of physical condition, it shall
not thereafter be restored, repaired, or rebuilt except in conformity with the regulations of
the district in which it is located.
Nothing in this ordinance shall be deemed to prevent the strengthening or restoring to a
safe condition of any building or part thereof declared to be unsafe by any official
charged with protecting the public safety, upon order of such official.
6.8 SPECIAL EXCEPTION USES /SPECIFIC USE PERMITS: NOT NONCONFORMING
USES - Any use for which a special exception or specific use permit is granted pursuant
to this ordinance shall not be deemed a nonconforming use, but shall, without further
action be deemed a conforming use in such district only for the single property granted
such special exception or specific use permit.
Any special exception or specific use permit heretofore granted by the Board of
Adjustment or City Council which was lawfully existing at the effective date of this
ordinance but which is no longer permitted under this ordinance or amendment thereof
shall be considered a nonconforming use and shall be subject to all terms of this
ordinance relating to nonconforming uses, unless the zoning classification under this
ordinance for the property to which the special use attaches allows that particular use.
Any special exception or specific use permit which has expired or which is not in
compliance with the conditions placed upon such use shall not be permitted to continue.
6.9 DISCONTINUANCE OR ABANDONMENT (Amended by Ordinance 480- )
a. If a non - conforming use is either discontinued or abandoned under the terms and
conditions of this section, such use shall not be resumed and any further use
shall be in conformity with the provisions of this ordinance. The r h
determined that abandonment of a nen_nnnferming use and disrontini lame of a
different review standard fnr eanh art
b. For the purpose of this section, "abandonment" shall be defined as an 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 an intent to abandon a non-
conforming use:
1. the closure or cessation of the non - conforming use for a period of one
hundred twenty (120) consecutive days;
Z in the d etermination of the Zening A the failure of the owner to
repair the structure or property used to operate the non - conforming use
within thirty (30) days after the chief building official or code enforcement
officer has given the owner written notice that the building, the structure or
use property is:
{� (a) in an advanced stage of dilapidation, as determined by either the
zoning administrator or the chief building official;
R� (b) is n with in violation of one or more applicable health
and safety 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 S Gh-as the €building, -Pplumbing, €electrical and
Mmechanical and life safety Ccodes as adopted by the City that govern
the use of stn irti Tres designed for hi human orni inanny ; or
{3} (c) +s otherwise unsafe for the continuation of the current use or
occupancy.
If any of these renditions events or Gendi in evicts then the owner shall
bear the burden of proof and nredi ictieTrto est lisp that the o w n er did
not intend to abandon the use
2-. c. For the purpose of this section, "discontinuance" shall be defined as follows: a
1 80 GenseGUtive days, irrespeGtive E)
When a non - conforming 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.
2. When a 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:
(a) 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 one hundred eighty
(180) consecutive days; or
(b) 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.
d. Upon the request of the City or any other interested complainant, including the
owner of any real property located within one thousand (1,000) feet of the real
property containing a legal non - conforming use or structure, the zoning
administrator shall make a written determination as to whether such use has
been abandoned or discontinued as provided herein.
e. If the complainant or the owner of the nonconforming use wishes to appeal a
determination of the zoning administrator as to whether the non - conforming use
has been abandoned or discontinued, such person may perfect an appeal by
filing a written notice of appeal with the zoning administrator and city secretary
and paying the applicable fee within ten (10) business days of the zoning
administrator's decision. Upon the filing of such an appeal, the board of
adjustment shall, as soon as practicable, hold a public hearing on such appeal,
and, following such public hearing, may reverse the decision of the zoning
administrator based on a majority vote of the members present and voting. The
complainant shall bear the burden of proof and persuasion to establish either that
the non - conforming use has been closed or ceased for a period of one hundred
twenty (120) consecutive days or that the owner of the non - conforming use has
failed to repair the structure or property used to operate the non - conforming use
within thirty (30) days after the chief building official or code enforcement officer
has given the owner written notice as described above. The owner of the
nonconforming use shall bear the burden of proof and production to establish
that the owner of the nonconforming use did not have actual intent to abandon
the use.
6.10 DESTRUCTION 9 OR DAMAGE TO NONCONFORMING STRUCTURE OR USE
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e. if the owner of a nonGenferming use fails to begin reGenStFUGt of the destroyed
stn infi ire (when permitted to de se by the forms of this ordinance) within six /621
menths of tie dat of deStFUGt er a the Board of Adjustment, menit, the
nonconforming 6 #61G ire or use shall he isde��ed to he dis� ed or
abandened as provided on SeGtien 6.9 above.
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a. Nonconforming Structures.
1. If a legal nonconforming structure is totally
destroyed or partially damaged by the elements, fire, other
catastrophe, or other casualty, the structure may not be repaired
or reconstructed except in conformity with the provisions of this
ordinance.
2. If a nonconforming structure is partially damaged
by the elements, fire, other catastrophe, or other casualty, and the
owner of the nonconforming structure wishes to repair or
reconstruct the damaged structure, upon submission of a request
for a building permit, the zoning administrator shall first determine
in writing whether the cost of repair or reconstruction is less than
fifty percent (50 %) of the structure's fair market value immediately
preceding the casualty, exclusive of the value of the real property.
In making a determination regarding the cost of repair or
reconstruction, the zoning administrator shall include all costs to
make all repaired or reconstructed portions of the structure
conform to all 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.
3. If the zoning administrator determines that the cost
of repair or reconstruction is less than fifty percent (50 %) of the
structure's fair market value immediately preceding the casualty,
exclusive of the value of the real property, and the owner of the
nonconforming structure complies with all other requirements of
the City Code, the owner of the nonconforming use or structure
shall be entitled to a building permit permitting the owner to repair
or reconstruct the damaged structure, provided that all repaired or
reconstructed portions of the structure shall conform to all
applicable health and safety codes adopted by the City as
described above. If the zoning administrator determines that the
cost of repair or reconstruction is equal to or greater than fifty
percent (50 %) of the structure's fair market value immediately
preceding the casualty, exclusive of the value of the real property,
the owner of the nonconforming structure shall be entitled to a
building permit authorizing the owner to repair or reconstruct the
damaged structure only if the proposed repairs and reconstruction
completely eliminate the non - conformity; otherwise, the owner
shall be required to demolish the damaged structure and bring the
property into full conformity with the terms of this ordinance.
b. Nonconforming Uses.
1. If a structure used in the operation of a legal
nonconforming use is totally destroyed or partially damaged by the
elements, fire, other catastrophe, or other casualty, the structure
may not be repaired or reconstructed and the nonconforming use
may not be recommenced except in conformity with the provisions
of this ordinance.
2. If a structure used in the operation of a legal
nonconforming use is partially damaged by the elements, fire,
other catastrophe, or other casualty, and the owner of the
nonconforming use wishes to repair or reconstruct the damaged
structure, upon submission of a request for a building permit, the
zoning administrator shall first determine in writing whether the
cost of repair or reconstruction is less than fifty percent (50 %) of
the structure's fair market value immediately preceding the
casualty, exclusive of the value of the real property. In making a
determination regarding the cost of repair or reconstruction, the
zoning administrator shall include all costs to make all repaired or
reconstructed portions of the structure conform to all 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.
3. If the zoning administrator determines that the cost
of repair or reconstruction is greater than or equal to fifty percent
(50 %) of the structure's fair market value immediately preceding
the casualty, exclusive of the value of the real property, the owner
may not continue the nonconforming use.
C. Appeals. If the owner of the nonconforming use or structure
wishes to appeal a determination of the zoning administrator that the cost
of repair or reconstruction is equal to or greater than fifty percent (50 %) of
the structure's fair market value immediately preceding the casualty,
exclusive of the value of the real property, the owner may do so by filing a
written notice of appeal with the zoning administrator and city secretary
and paying the applicable fee within ten (10) business days of the zoning
administrator's decision. Upon the filing of such an appeal, the board of
adjustment shall, as soon as practicable, hold a public hearing on such
appeal, and, following such public hearing, may reverse the decision of
the zoning administrator based on a majority vote of the members present
and voting. The owner of the nonconforming use or structure shall bear
the burden of proof and production at such appeal hearing to establish
that the cost of repair or reconstruction is less than fifty percent (50 %) of
the structure's fair market value at the time of destruction, exclusive of the
value of the real property. The determination of the Board of Adjustment
shall be final.
d. Special Exception for Financial Hardship.
1. If the zoning administrator determines that the cost
of repair or reconstruction is equal to or greater than fifty percent
(50 %) of the structure's fair market value immediately preceding
the casualty, exclusive of the value of the real property, and either
the owner of the nonconforming use or structure does not timely
appeal that determination or the board of adjustment affirms that
determination, the owner of the nonconforming use or structure
may request a special exception permitting the owner of the
nonconforming use or structure to repair and /or reconstruct the
structure and /or continue the nonconforming use by filing a written
request for special exception relating to continuance of a non-
conforming use or structure with the zoning administrator and city
secretary and paying the applicable fee within ten (10) business
days of the date of determination of the zoning administrator, or
within ten (10) business days of the date the board of adjustment
affirms the determination of the zoning administrator, as may be
applicable.
2. Upon the filing of such a request for special
exception, the board of adjustment shall, as soon as practicable,
hold a public hearing on such request and, following such public
hearing, by majority vote of the members present and voting, may
grant the special exception and authorize repair and
reconstruction, if the board of adjustment determines that the
financial hardship caused the owner of the nonconforming use or
structure outweighs any negative impacts on the City and
surrounding properties caused by the continuation of operation of
the non - conforming use. When making this determination, the
Board of Adjustment shall consider the property rights both of the
owner of the non - conforming structure or non - conforming use and
the owners of adjacent and nearby properties, the desirability for
all property to conform to the regulations of this ordinance, the
character of the area surrounding the non - conforming use or
structure, the historic uses of the area surrounding the non-
conforming use or structure, the adverse impacts, if any, of the
non - conforming structure or use on the surrounding property and
neighborhood, the diminishment of value, if any, of the
surrounding property and neighborhood due to the continuance of
the non - conforming structure or non - conforming use, and the
public welfare, including any person or persons affected by the
continuation of the non - conforming structure or non - conforming
use.
3. The owner of the nonconforming use or structure
will bear the burden of proof and persuasion on the property rights
of the owner of the nonconforming use or structure, the
investment of the owner in the non - conforming structure or non-
conforming use, and the past and /or anticipated future profitability
of the non - conforming structure or non - conforming use, and any
other circumstances which support the granting of the special
exception. The City will bear the burden of proof and persuasion
on the property rights of the owners of adjacent and nearby
properties, the desirability for all property to conform to the
regulations of this ordinance, the character of the area
surrounding the non - conforming use or structure, the historic uses
of the area surrounding the non - conforming use or structure, the
adverse impacts, if any, of the non - conforming structure or use on
the surrounding property and neighborhood, the diminishment of
value, if any, of the surrounding property and neighborhood due to
the continuance of the non - conforming structure or non-
conforming use, and the public welfare, including any person or
persons affected by the continuation of the non - conforming
structure or non - conforming use. The determination of the Board
of Adjustment shall be final.
e. Multiple Structures. Where an individual structure(s) used in
operation of a legal non - conforming use is destroyed by more than fifty
percent (50 %) by the elements, fire, other catastrophe, or other causes,
upon submission by the owner of sufficient evidence that the cost of
repair or reconstruction of the damages structure is less than fifty percent
(50 %) of the total value of the improvements used in operation of a legal
non - conforming use, exclusive of the value of the real property, and that
the destroyed structure(s) constituted an integral part of the operation of
the nonconforming use without which the nonconforming use cannot be
profitably operated, the Board of Adjustment, by majority vote of the
members present and voting, may permit the reconstruction of such
destroyed structure(s) under conditions which reasonably allow the owner
to recoup the owner's original investment in the non - conforming use,
provided such reconstruction does not, in the judgment of the board,
unduly delay the return of such property to a conforming use or increase
the nonconformity of a nonconforming structure beyond what existed prior
to fire, the elements, other catastrophe, or other cause of destruction, and
provided that the reconstructed structure itself conforms to the all
requirements of the ordinances of the City. In making this determination,
the cost of repair or reconstruction of the damaged structure(s) shall not
be included in determining the owner's investment in the non - conforming
use subject to recoupment or amortization, and also shall not be included
in any subsequent proceedings regarding amortization of the
nonconforming use. If the Board of Adjustment permits such
reconstruction, the owner of the nonconforming use shall bear the burden
of proof and production to establish that the extent of destruction amounts
to less than fifty percent (50 %) of the total value of the entire
nonconforming use and that the destroyed structure(s) constituted an
integral part of the nonconforming use, without which the nonconforming
use cannot be profitably operated. The determination of the Board of
Adjustment shall be final.
f. Single family residences. Notwithstanding anything herein to
the contrary, a non - conforming single family residence which is damaged
or destroyed shall be permitted to be reconstructed without Board of
Adjustment approval regardless of the extent of destruction provided that
the reconstruction complies with all current building codes and is
commenced within six (6) months of the date of destruction. The failure of
the owner to start such reconstruction within six (6) months shall forfeit
the owner's right to restore or reconstruct the dwelling except in
conformance with this ordinance.
g. Failure to timely commence repair or reconstruction. With
regard to any request to repair or reconstruct under this section, if the
owner of a nonconforming use or structure fails to begin reconstruction of
the structure (when permitted to do so by the terms of this ordinance)
within six (6) months of the later of the date of issuance of a building
permit, the nonconforming structure or use shall be deemed to be
discontinued or abandoned as provided in Section 6.9 above.
h. Notice and Procedures for Board of Adjustment Hearing.
Prior to any hearing before the Board of Adjustment under this section,
the zoning administrator shall provide the owner of any nonconforming
use or structure for which termination or amortization is sought with at
least thirty (30) days prior written notice of the appeal hearing. Such
written notice shall make specific reference to this section. At the public
hearing on the issue, the owner may appear in person and /or by counsel,
and the City and the owner may present any evidence, written or oral, to
the Board, which each deems relevant. The Board will not be bound by
formal rules of evidence. The City will be represented by the City
Attorney. The Board may also retain separate legal counsel to represent
and advise the Board, and the City shall pay for such counsel.
6.11 AMORTIZATION OF NONCONFORMING USES
a. The Board of Adjustment may from time to time on its own motion or upon cause
presented by interested persons inquire into the existence, continuation or maintenance of
any nonconforming use within the City. The Board of Adjustment may take specific action to
abate, remove, limit or terminate any nonconforming use or structure under reasonable
guidelines as cot forth in SeGtien 44 . 3 of this ordinanro established in this section. The
concurring vote of four (4) members of the Board shall be necessary to take any such
action.
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The Board of Adjustment may order the immediate termination of a
nonconforming use or structure if the Board determines that the owner's
investment in the nonconforming use or structure has been recouped through
amortization over time.
C. Alternatively, if the Board determines that the owner's investment in the
nonconforming use or structure has not been recouped through amortization at
the time of the hearing, the Board of Adjustment may order the termination of a
nonconforming use or structure on such future date by which the Board
determines the owner's investment in the nonconforming use or structure will be
recouped through amortization.
d. In making any determination under this section, the Board of Adjustment shall
first hold a public hearing. The zoning administrator shall provide the owner of
any nonconforming use or structure for which termination or amortization is
sought with at least thirty (30) days prior written notice of the action sought.
Such written notice shall make specific reference to this section.
e. In making any determination under this section, the Board shall consider the
investment of the owner in the non - conforming structure or non - conforming use,
the past and /or anticipated future profitability of the non - conforming structure or
non - conforming use, the desirability for all property to conform to the regulations
of this ordinance, the character of the area surrounding the non - conforming use
or structure, the historic uses of the area surrounding the non - conforming use or
structure, the adverse impacts, if any, of the non - conforming structure or use on
the surrounding property and neighborhood, the diminishment of value, if any, of
the surrounding property and neighborhood due to the continuance of the non-
conforming structure or non - conforming use, the property rights both of the
owner of the non - conforming structure or non - conforming use and the owners of
adjacent and nearby properties, and the public welfare, including any person or
persons affected by the continuation of the non - conforming structure or non-
conforming use.
f. The City will bear the burden of proof and persuasion on the desirability for all
property to conform to the regulations of this ordinance, the character of the area
surrounding the non - conforming use or structure, the historic uses of the area
surrounding the non - conforming use or structure, the adverse impacts, if any, of
the non - conforming structure or use on the surrounding property and
neighborhood, the diminishment of value, if any, of the surrounding property and
neighborhood due to the continuance of the non - conforming structure or non-
conforming use, the property rights of the owners of adjacent and nearby
properties, and the public welfare, including any person or persons affected by
the continuation of the non - conforming structure or non - conforming use. The
owner of the nonconforming structure or use will bear the burden of proof and
persuasion on the owner's property rights, the investment of the owner in the
non - conforming structure or non - conforming use, and the past and /or anticipated
future profitability of the non - conforming structure or non - conforming use. The
decision of the Board of Adjustment shall be final.
g. Prior to any hearing before the Board of Adjustment under this section, the
zoning administrator shall provide the owner of any nonconforming use or
structure for which termination or amortization is sought with at least thirty (30)
days prior written notice of the appeal hearing. Such written notice shall make
specific reference to this section. At the public hearing on the issue, the owner
may appear in person and /or by counsel, and the City and the owner may
present any evidence, written or oral, to the Board, which each deems relevant.
The Board will not be bound by formal rules of evidence. The City will be
represented by the City Attorney. The Board may also retain separate legal
counsel to represent and advise the Board, and the City shall pay for such
counsel.
SECTION 44
BOARD OF ADJUSTMENT
(As amended by Ordinance No. 480 -C)
(As further amended by Ordinance No. 480 -N)
(As further amended by Ordinance No. 480 -QQ & 480 -SS)
(As further amended by Ordinance No. 480 -WW)
(As further amended by Ordinance No. 480 -XX)
(As further amended by Ordinance No. 480 -NNN)
(As further amended by Ordinance No. 480 -QQQ)
(As further amended by Ordinance No. 480 -ZZZ)
(As further amended by Ordinance No. 480 -BBBB)
44.1 ESTABLISHMENT - A Board of Adjustment is hereby established which shall consist of
five (5) members and four (4) alternates to be appointed by the City Council. The term of
office of said members and alternates shall be two (2) years. Three (3) members and
two (2) alternates shall be appointed to serve terms beginning in odd numbered years
and two (2) members and two (2) alternates shall be appointed to serve terms beginning
in even numbered years. In making such appointments, the City Council shall name one
appointee as Chairman and one as Vice - Chairman. After the appointment of the original
members and alternates thereof, all vacancies occurring on the Board of Adjustment
shall be filled by appointment by the City Council. Members and alternates of the Board
of Adjustment may be removed from office by the City Council for cause upon written
charges and after public hearing. Vacancies shall be filled by resolution of the City
Council for the unexpired term of the member or alternate affected. (As amended by
Ordinance 480 -XX)
44.2 PROCEEDINGS OF THE BOARD - The Board of Adjustment shall adopt rules
necessary to the conduct of its affairs and in keeping with the provisions of this
ordinance. Meetings shall be held at the call of the chairman and at such other time as
the board may determine. The chairman, or in his absence the acting chairman, may
administer oaths and compel the attendance of witnesses. All meetings shall be open to
the public. All cases to be heard by the Board of Adjustment shall always be heard by a
minimum of four (4) members. The Board of Adjustment shall keep minutes of its
proceedings, showing the vote of each member upon each question, or if absent or
failing to vote, indicating such fact, and shall keep records of its examinations and other
official actions, all of which shall be a public record and be immediately filed in the office
of the City and maintained by the City Secretary.
44.3 POWERS AND DUTIES - The Board of Adjustment shall have all powers and duties
granted by this ordinance and by Sections 211.008- 211.011, Texas Local Government
Code, and shall be governed by same. These powers and duties shall include the
following:
a. Administrative Review - To hear and decide appeals that allege error in any order,
requirement, decision, or determination made by the Administrative Officer in the
enforcement of this ordinance.
b. Variances - To authorize in specific cases variances from the terms of this ordinance
as will not be contrary to the public interest, where due to special conditions, a literal
enforcement of the provisions of this ordinance would result in unnecessary hardship
and where the spirit of the ordinance is observed and substantial justice is done. A
variance shall not be granted by the Board of Adjustment except in accordance with
the following:
(1) A written application for a variance shall be submitted demonstrating:
(a) That special conditions and circumstances exist which are peculiar to the
land, structure, or building involved and which are not applicable to other
lands, structures, or buildings in the same district;
(b) That literal interpretation of the provisions of this ordinance would deprive
the applicant of rights commonly enjoyed by other properties in the same
district under the terms of this ordinance;
(c) That the special conditions and circumstances do not result from the
actions of the applicant;
(d) That granting of the variance requested will not confer on the applicant any
special privilege that is denied by this ordinance to other lands, structures,
or buildings in the same district.
(2) No nonconforming use of neighboring lands, structures, or buildings in the same
district, and no permitted use of lands, structures, or buildings in other districts
shall be considered grounds for the issuance of a variance.
(3) A public hearing shall be held on all applications for variances. Any party may
appear in person, or by agent or attorney.
(4) Fifteen (15) days notice of the public hearing shall be given in accordance with
the procedures used in zoning cases.
(5) The Board of Adjustment shall make findings that the requirements of this
section have been met by the applicant for a variance.
(6) The Board of Adjustment shall further make a finding that the reasons set forth
in the application justify the granting of the variance and that the variance is the
minimum variance that will make possible the reasonable use of the land,
building or structure.
(7) The Board of Adjustment shall further make a finding that the granting of the
variance will be in harmony with the general purpose and intent of this ordinance
and will not be injurious to the neighborhood or otherwise detrimental to the
public welfare.
c. Special Exceptions - The Board may grant those special exceptions which are
specifically authorized under this ordinance. A special exception may not be granted
by the Board except in accordance with the following (as amended by Ordinance No.
480 -D):
(1) A written application for a special exception shall be submitted and shall be
accompanied by a concept plan or plot plan as required in Subsection 44.12
below. The concept plan or plot plan shall be reviewed by the Board at a public
hearing.
(2) Fifteen (15) days notice of the public hearing shall be given in accordance with
the procedures used in zoning cases.
(3) No special exception shall be granted unless the Board finds that the requested
exception is specifically permitted by this ordinance; that the location of the
proposed activities and improvements are clearly defined on the concept plan or
plot plan; and that the special exception is wholly compatible with the use and
permitted development of adjacent properties either as filed or subject to such
limitations and requirements as the board deems to be necessary to protect
adjacent properties.
d. Termination or Amortization of Nonconforming Structure or Use - The Board may
order the immediate termination of a nonconforming use or structure under a
reasonable plan w the o vwner -S the noTronformino i 1so or
6#61GtUre Gan be reGE)uped threugh amortization ever a definite peried of time, taking
nronorty to conform to the reg of this ordinance on the terms and subject to
the provisions and procedures established in Section 6.11 of this ordinance.
e. Reconstruction of Nonconforming Use - The Board may permit the repair or
reconstruction and occupancy of a nonconforming structure or a structure containing
a nonconforming use where the structure has been dest roye d damaged in excess of
fifty percent (50 %) but less than the total value, as provided in Section 6.10, provided
such reconstruction does not, in the judgment of the Board, prevent the retu r
StFUGtUre beyond what is permitted by SeGtien 6 of this erdinanGe. SUGh aGtien by the
Beard of Adjustment shall have due regard for the property rights of the persen er
persens affeGted when Gensidered on light of the publiG welfare, the GharaGter area
surre inding properties— and —their values on the terms and subject to the
provisions and procedures established in Section 6.10 of this ordinance.
Resumption of Discontinued or Abandoned Nonconforming Use Within the limits
prescribed in Section 6.9, the Board may review nonconforming uses which have
been abandoned or discontinued to determine whether such uses should be allowed
to resume operations SU }� Gh aEtien —by the
�. Rs"°�ce� nnecess
hardship on the property owner Of the use is diSGentinued and shall have d6le regard
for the ni ihlir w elf a r re — the G the area surround ending si iGh i ie and the
Genservation, preservation and preteGtien of surreunding properties and their values.
on the terms and subject to the provisions and procedures established in
Section 6.10 of this ordinance.
44.4 CLASSIFICATION OF NEW AND UNLISTED USES
a. It is recognized that new types of land may develop and forms of land uses not
anticipated herein or clearly covered herein may be the basis of a request for zoning
in the City.
b. In order to provide for such changes and contingencies, an interpretation of the
ordinance as to whether or not such requested land use is covered or not by the
existing ordinance shall be first made by the Administrative Official. The decision of
the Administrative Official may be appealed to the Board of Adjustment, who shall
consider the nature and characteristics of the proposed use and its compatibility with
the uses permitted in various zoning districts, and determine in its opinion which
zoning district or districts such use should be listed in, and shall so make its findings
in writing. (As amended by Ordinance No. 480 -C.)
44.5 DECISIONS OF THE BOARD OF ADJUSTMENT - In exercising the above mentioned
powers, the Board of Adjustment may, so long as such action is in conformity with the
terms of this ordinance, reverse or affirm, wholly or partly, or may modify the order,
requirement, decision, or determination appealed from and may make such order,
requirement, decision or determination as ought to be made and to that end shall have
powers of the Administrative Official from whom the appeal is taken.
44.6 CONDITIONS OF VARIANCE - In granting any variance, the Board of Adjustment may
prescribe appropriate conditions and safeguards in conformity with this ordinance.
Violation of such conditions and safeguards, when made a part of the terms under which
the variance is granted, shall be deemed a violation of this ordinance. (As amended by
Ordinance No. 480 -C.)
Under no circumstances shall the Board of Adjustment grant a variance to allow a use
not permissible under the terms of this ordinance in the district involved or any use
expressly or by implication prohibited by the terms of this ordinance in said district. (As
amended by Ordinance No. 480 -C.)
44.7 VOTE - The concurring vote of four members of the Board shall be necessary to reverse
any order, requirement, decision, or determination of the Administrative Official, or to
decide in favor of the applicant on any matter upon which the Board is required to pass
under this ordinance, or to approve any variance. (As amended by Ordinance No. 480 -
C.)
44.8 APPEAL TO BOARD - All questions of interpretation and enforcement shall be first
presented to the Administrative Official, and such questions shall be presented to the
Zoning Board of Adjustment only on appeal from the decision of the Administrative
Official.
a. Appeals to the Board of Adjustment concerning interpretation of administration of this
ordinance may be taken by any person aggrieved or by any officer or department of
the City affected by any decision of the Administrative Official. Such appeals shall
be taken within a reasonable time, not to exceed 60 days, or such lesser period as
may be provided by the rules of the Board of Adjustment specifying the grounds
thereof. The Administrative Official shall forthwith transmit to the Board all papers
constituting the record upon which the action appealed was taken.
b. The Board of Adjustment shall fix a reasonable time for the hearing of the appeal,
give public notice thereof as well as due notice to the parties in interest, and decide
the same within a reasonable time. At the hearing, any party may appear in person
or by agent or attorney.
44.9 JUDICIAL REVIEW - Any person aggrieved by a decision of the Board, any taxpayer, or
any officer, department, board or bureau the City, may seek review by a court of record
of such decision, and under the time limit and requirements specified in Section 211.011
of the Texas Local Government Code.
44.10 STAY OF PROCEEDINGS - An appeal stays all proceedings in furtherance of the action
appealed from, unless the Administrative Official from whom the appeal is taken certifies
to the Board of Adjustment after the notice of appeal is filed with him that by reason of
facts stated in the certificate, a stay would, in his opinion, cause imminent peril to life and
property. In such case, proceedings shall not be stayed other than by a restraining order
which may be granted by the Board of Adjustment or by a court of record on application,
on notice to the Administrative Official from whom the appeal is taken and on due cause
shown.
44.11 WAIVER OF MANDATORY YARD AND SETBACK REQUIREMENTS - The Zoning
Board of Adjustment may approve waiver of up to fifteen (15) percent of any required
yard area or setback when such a waiver is necessary due to a surveying or
construction error in the placement of the original foundation or site improvement. The
Zoning Board of Adjustment may in its discretion delegate to the Zoning Administrator its
authority under this provision for all or a portion of the fifteen (15) percent area waiver
pursuant to such terms and conditions as the Board may establish. The Zoning
Administrator shall not be authorized to approve a waiver under this Section until the
Zoning Board of Adjustment shall have issued a written decision outlining the terms and
conditions under which these waivers may be granted.
44.12 SPECIAL EXCEPTIONS USE POWERS - The following special exceptions may be
permitted by the Board of Adjustment in the district specified, subject to full and
complete compliance with any and all conditions required in this section, together with
such other conditions as the Board may impose (as amended by Ordinance No. 480 -D,
480 -SS, 480 -NNN, and 480 -ZZZ):
SPECIAL EXCEPTION USE
District Where
Permitted
1. Servants or family quarters for domestic servants employed on the premises or
AG, RE, RCS, SF-
family members of the owner of the premises shall not be rented or otherwise
1A, SF -1B, SF -2,
used as a separate domicile provided the gross inhabitable square footage of
SF -30, DT*
* Shall apply only to approved single - family residential uses in the DT zone
* Shall apply only to approved single - family residential uses in the DT, TZD, and EC zones
the floor area shall not exceed two thousand (2,000) square feet except that the
CONCEPT PLAN
gross inhabitable floor area in SF -30 zoning shall not exceed one thousand
REQUIRED
(1,000) square feet. Such quarters may be housed within the principal
residential dwelling, above a residential garage, or be part of an accessory
building on the same premises, and shall comply with minimum standards for
light, health, safety and occupancy in conformance with other applicable City
Codes and Ordinances. If the quarters exist as a separate accessory building
to the principal dwelling, such quarters must be located at a distance of at least
thirty (30) feet behind the principal dwelling, or not be visible from the street; in
addition, such quarters must share a common street access with the principal
dwelling. All utilities must be on the same meter as the principal dwelling. A
separate septic system from the principal dwelling is required if the quarters are
housed other than in the principal dwelling.
2.
Temporary real estate sales office, including manufactured housing, to be
ALL
located on property being sold for a period of sale exceeding two (2) years.
CONCEPT PLAN
REQUIRED
3.
The construction of accessory buildings or structures of a size or aggregate
AG, MF -1, MF -2,
size greater than that permitted under the accessory building requirements of
SF -1A, SF -113,
the zoning district of the property based on the following review criteria:
SF -2, SF -30, SF-
a. Compatibility of the materials proposed with the principal structures and
20A, SF -2013, MH,
the surrounding properties
DT*
b. Purpose of the accessory structure
PLOT PLAN,
c. Consistency of architectural style including roof structure
ELEVATIONS,
d. Setback from adjoining properties and location on the subject property
AND
RENDERINGS
(As amended by Ordinance 480 -QQQ)
REQUIRED
5.
In -home day care per state regulations.
RE, RCS, SF -1A,
SF-113, SF -2, SF-
30, SF -20A, SF-
20B, MH, DT *,
TZD *, EC* PLOT
PLAN REQUIRED
6.
In -home swimming lessons.
RE, RCS, SF -2,
SF -1A, SF -113,
SF -30, SF -20A,
and SF -2013, MH
PLOT PLAN
REQUIRED
7.
Portable buildings not otherwise permitted under this ordinance, subject to the
All except RE, SF-
following requirements: (As amended by Ord. 480 -J)
1A, SF -113, SF -2,
SF -30, SF -20A,
a. Approval of a portable building shall be on a temporary basis only. Any permit
SF -20B, MR -1,
granted hereunder shall be for a maximum period of three (3) years.
MF -2, MH, PLOT
* Shall apply only to approved single - family residential uses in the DT, TZD, and EC zones
PLAN REQUIRED
b. All portable buildings shall be constructed in accordance with the appropriate
state or federal code which regulates their construction or shall meet all
requirements of the City's building code.
c. Portable buildings shall be placed upon a permanent foundation and shall have
a masonry facade meeting the requirements of the City's Masonry Ordinance.
In addition, hard surfaced parking shall be provided for portable buildings.
d. Portable buildings shall be maintained in a neat and presentable condition at all
times. Upon expiration of the special exception use permit, the portable
building shall be immediately removed and the premises shall be restored to
their previous condition.
e. The plot plan submitted with the application shall contain a narrative
explanation describing the applicant's plans to transition the portable building to
a permanent structure.
8. The erection and maintenance of noncommercial radio and television
ALL
transmitting and receiving antennas and satellite dishes in excess of maximum
PLOT PLAN
height regulations or maximum dish size for this district where such structures
REQUIRED
are related to principal permitted uses occupying the structures to which they
are external to, attached, or affixed. (As amended by Ord. No. 480 -J) (As
further amended by Ord. No. 480 -W.)
ORDINANCE NO. 480 -BBBB
AN ORDINANCE AMENDING SECTIONS 6.9, 6.10, 6.11, AND 44.3 OF THE
CITY'S COMPREHENSIVE ZONING ORDINANCE, AS AMENDED, TO
REVISE THE PROVISIONS AND PROCEDURES REGARDING THE
DESTRUCTION, RECONSTRUCTION AND TERMINATION OR
AMORTIZATION OF NONCONFORMING USES AND THE BOARD OF
ADJUSTMENT'S AUTHORITY AND RESPONSIBILITY RELATING THERETO,
PROVIDING THAT THIS ORDINANCE SHALL BE CUMULATIVE OF ALL
ORDINANCES; PROVIDING A SEVERABILITY CLAUSE; PROVIDING A
PENALTY FOR VIOLATIONS; PROVIDING A SAVINGS CLAUSE;
PROVIDING FOR PUBLICATION IN THE OFFICIAL NEWSPAPER; AND
PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City of Southlake, Texas is a home rule city acting under its charter
adopted by the electorate pursuant to Article XI, Section 5 of the Texas Constitution and
Chapter 9 of the Local Government Code; and
WHEREAS, the City Council has determined that nonconforming land uses are a
burden on the property values of adjacent properties and unduly diminish such property
values and the enjoyment and public health and welfare of the citizens of the City; and
WHEREAS, the City Council has determined that the existing provisions relating to the
destruction, reconstruction and termination and amortization of nonconforming land uses are
outdated and require revision;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
SOUTHLAKE, TEXAS:
SECTION 1
AMENDMENT OF SECTION 6.9
Section 6.9 of the Southlake Comprehensive Zoning Ordinance is hereby amended to
provide as follows:
6.9 DISCONTINUANCE OR ABANDONMENT
a. If a legal, non - conforming use is either discontinued or abandoned under
the terms and conditions of this section, such use shall not be resumed and any
further use shall be in conformity with the provisions of this ordinance.
b. 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 non-
conforming use:
1. the closure or cessation of the non - conforming use for a period of
one hundred twenty (120) consecutive days;
2. the failure of the owner to repair the structure or property used to
operate the non - conforming 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:
(a) in an advanced stage of dilapidation, as determined by either
the zoning administrator or the chief building official;
(b) 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
(c) otherwise unsafe for the continuation of the current use or
occupancy.
C. For the purpose of this section, "discontinuance" shall be defined as
follows:
1. When a non - conforming 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.
2. When a 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:
(a) 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
one hundred eighty (180) consecutive days; or
(b) 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.
d. Upon the request of the City or any other interested complainant, including
the owner of any real property located within one thousand (1,000) feet of the
real property containing a legal non - conforming use or structure, the zoning
administrator shall make a written determination as to whether such use has
been abandoned or discontinued as provided herein.
e. If the complainant or the owner of the nonconforming use wishes to
appeal a determination of the zoning administrator as to whether the non-
conforming use has been abandoned or discontinued, such person may perfect
an appeal by filing a written notice of appeal with the zoning administrator and
city secretary and paying the applicable fee within ten (10) business days of the
zoning administrator's decision. Upon the filing of such an appeal, the board of
adjustment shall, as soon as practicable, hold a public hearing on such appeal,
and, following such public hearing, may reverse the decision of the zoning
administrator based on a majority vote of the members present and voting. The
complainant shall bear the burden of proof and persuasion to establish either that
the non - conforming use has been closed or ceased for a period of one hundred
twenty (120) consecutive days or that the owner of the non - conforming use has
failed to repair the structure or property used to operate the non - conforming use
within thirty (30) days after the chief building official or code enforcement officer
has given the owner written notice as described above. The owner of the
nonconforming use shall bear the burden of proof and production to establish
that the owner of the nonconforming use did not have actual intent to abandon
the use.
SECTION 2
AMENDMENT OF SECTION 6.10
Section 6.10 of the Southlake Comprehensive Zoning Ordinance is hereby amended to
provide as follows:
6.10 DESTRUCTION OR DAMAGE TO NONCONFORMING STRUCTURE OR
USE
a. Nonconforming Structures.
1. If a legal nonconforming structure is totally destroyed or partially
damaged by the elements, fire, other catastrophe, or other casualty, the structure
may not be repaired or reconstructed except in conformity with the provisions of
this ordinance.
2. If a nonconforming structure is partially damaged by the elements,
fire, other catastrophe, or other casualty, and the owner of the nonconforming
structure wishes to repair or reconstruct the damaged structure, upon submission
of a request for a building permit, the zoning administrator shall first determine in
writing whether the cost of repair or reconstruction is less than fifty percent (50 %)
of the structure's fair market value immediately preceding the casualty, exclusive
of the value of the real property. In making a determination regarding the cost of
repair or reconstruction, the zoning administrator shall include all costs to make all
repaired or reconstructed portions of the structure conform to all 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.
3. If the zoning administrator determines that the cost of repair or
reconstruction is less than fifty percent (50 %) of the structure's fair market value
immediately preceding the casualty, exclusive of the value of the real property,
and the owner of the nonconforming structure complies with all other
requirements of the City Code, the owner of the nonconforming use or structure
shall be entitled to a building permit permitting the owner to repair or reconstruct
the damaged structure, provided that all repaired or reconstructed portions of the
structure shall conform to all applicable health and safety codes adopted by the
City as described above. If the zoning administrator determines that the cost of
repair or reconstruction is equal to or greater than fifty percent (50 %) of the
structure's fair market value immediately preceding the casualty, exclusive of the
value of the real property, the owner of the nonconforming structure shall be
entitled to a building permit authorizing the owner to repair or reconstruct the
damaged structure only if the proposed repairs and reconstruction completely
eliminate the non - conformity; otherwise, the owner shall be required to demolish
the damaged structure and bring the property into full conformity with the terms of
this ordinance.
b. Nonconforming Uses.
1. If a structure used in the operation of a legal nonconforming use is
totally destroyed or partially damaged by the elements, fire, other catastrophe, or
other casualty, the structure may not be repaired or reconstructed and the
nonconforming use may not be recommenced except in conformity with the
provisions of this ordinance.
2. If a structure used in the operation of a legal nonconforming use is
partially damaged by the elements, fire, other catastrophe, or other casualty, and
the owner of the nonconforming use wishes to repair or reconstruct the damaged
structure, upon submission of a request for a building permit, the zoning
administrator shall first determine in writing whether the cost of repair or
reconstruction is less than fifty percent (50 %) of the structure's fair market value
immediately preceding the casualty, exclusive of the value of the real property. In
making a determination regarding the cost of repair or reconstruction, the zoning
administrator shall include all costs to make all repaired or reconstructed portions
of the structure conform to all 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.
3. If the zoning administrator determines that the cost of repair or
reconstruction is greater than or equal to fifty percent (50 %) of the structure's fair
market value immediately preceding the casualty, exclusive of the value of the
real property, the owner may not continue the nonconforming use.
C. Appeals. If the owner of the nonconforming use or structure wishes to
appeal a determination of the zoning administrator that the cost of repair or
reconstruction is equal to or greater than fifty percent (50 %) of the structure's fair
market value immediately preceding the casualty, exclusive of the value of the
real property, the owner may do so by filing a written notice of appeal with the
zoning administrator and city secretary and paying the applicable fee within ten
(10) business days of the zoning administrator's decision. Upon the filing of such
an appeal, the board of adjustment shall, as soon as practicable, hold a public
hearing on such appeal, and, following such public hearing, may reverse the
decision of the zoning administrator based on a majority vote of the members
present and voting. The owner of the nonconforming use or structure shall bear
the burden of proof and production at such appeal hearing to establish that the
cost of repair or reconstruction is less than fifty percent (50 %) of the structure's
fair market value at the time of destruction, exclusive of the value of the real
property. The determination of the Board of Adjustment shall be final.
d. Special Exception for Financial Hardship.
1. If the zoning administrator determines that the cost of repair or
reconstruction is equal to or greater than fifty percent (50 %) of the structure's fair
market value immediately preceding the casualty, exclusive of the value of the
real property, and either the owner of the nonconforming use or structure does not
timely appeal that determination or the board of adjustment affirms that
determination, the owner of the nonconforming use or structure may request a
special exception permitting the owner of the nonconforming use or structure to
repair and /or reconstruct the structure and /or continue the nonconforming use by
filing a written request for special exception relating to continuance of a non-
conforming use or structure with the zoning administrator and city secretary and
paying the applicable fee within ten (10) business days of the date of
determination of the zoning administrator, or within ten (10) business days of the
date the board of adjustment affirms the determination of the zoning administrator,
as may be applicable.
2. Upon the filing of such a request for special exception, the board of
adjustment shall, as soon as practicable, hold a public hearing on such request
and, following such public hearing, by majority vote of the members present and
voting, may grant the special exception and authorize repair and reconstruction, if
the board of adjustment determines that the financial hardship caused the owner
of the nonconforming use or structure outweighs any negative impacts on the City
and surrounding properties caused by the continuation of operation of the non-
conforming use. When making this determination, the Board of Adjustment shall
consider the property rights both of the owner of the non - conforming structure or
non - conforming use and the owners of adjacent and nearby properties, the
desirability for all property to conform to the regulations of this ordinance, the
character of the area surrounding the non - conforming use or structure, the historic
uses of the area surrounding the non - conforming use or structure, the adverse
impacts, if any, of the non - conforming structure or use on the surrounding
property and neighborhood, the diminishment of value, if any, of the surrounding
property and neighborhood due to the continuance of the non - conforming
structure or non - conforming use, and the public welfare, including any person or
persons affected by the continuation of the non - conforming structure or non-
conforming use.
3. The owner of the nonconforming use or structure will bear the burden of
proof and persuasion on the property rights of the owner of the nonconforming
use or structure, the investment of the owner in the non - conforming structure or
non - conforming use, and the past and /or anticipated future profitability of the non-
conforming structure or non - conforming use, and any other circumstances which
support the granting of the special exception. The City will bear the burden of
proof and persuasion on the property rights of the owners of adjacent and nearby
properties, the desirability for all property to conform to the regulations of this
ordinance, the character of the area surrounding the non - conforming use or
structure, the historic uses of the area surrounding the non - conforming use or
structure, the adverse impacts, if any, of the non - conforming structure or use on
the surrounding property and neighborhood, the diminishment of value, if any, of
the surrounding property and neighborhood due to the continuance of the non-
conforming structure or non - conforming use, and the public welfare, including any
person or persons affected by the continuation of the non - conforming structure or
non - conforming use. The determination of the Board of Adjustment shall be final.
e. Multiple Structures. Where an individual structure(s) used in
operation of a legal non - conforming use is destroyed by more than fifty percent
(50 %) by the elements, fire, other catastrophe, or other causes, upon submission
by the owner of sufficient evidence that the cost of repair or reconstruction of the
damages structure is less than fifty percent (50 %) of the total value of the
improvements used in operation of a legal non - conforming use, exclusive of the
value of the real property, and that the destroyed structure(s) constituted an
integral part of the operation of the nonconforming use without which the
nonconforming use cannot be profitably operated, the Board of Adjustment, by
majority vote of the members present and voting, may permit the reconstruction of
such destroyed structure(s) under conditions which reasonably allow the owner to
recoup the owner's original investment in the non - conforming use, provided such
reconstruction does not, in the judgment of the board, unduly delay the return of
such property to a conforming use or increase the nonconformity of a
nonconforming structure beyond what existed prior to fire, the elements, other
catastrophe, or other cause of destruction, and provided that the reconstructed
structure itself conforms to the all requirements of the ordinances of the City. In
making this determination, the cost of repair or reconstruction of the damaged
structure(s) shall not be included in determining the owner's investment in the
non - conforming use subject to recoupment or amortization, and also shall not be
included in any subsequent proceedings regarding amortization of the
nonconforming use. If the Board of Adjustment permits such reconstruction, the
owner of the nonconforming use shall bear the burden of proof and production to
establish that the extent of destruction amounts to less than fifty percent (50 %) of
the total value of the entire nonconforming use and that the destroyed structure(s)
constituted an integral part of the nonconforming use, without which the
nonconforming use cannot be profitably operated. The determination of the Board
of Adjustment shall be final.
f. Single family residences. Notwithstanding anything herein to the contrary,
a non - conforming single family residence which is damaged or destroyed shall be
permitted to be reconstructed without Board of Adjustment approval regardless of
the extent of destruction provided that the reconstruction complies with all current
building codes and is commenced within six (6) months of the date of destruction.
The failure of the owner to start such reconstruction within six (6) months shall
forfeit the owner's right to restore or reconstruct the dwelling except in
conformance with this ordinance.
g. Failure to timely commence repair or reconstruction. With regard to
any request to repair or reconstruct under this section, if the owner of a
nonconforming use or structure fails to begin reconstruction of the structure (when
permitted to do so by the terms of this ordinance) within six (6) months of the later
of the date of issuance of a building permit, the nonconforming structure or use
shall be deemed to be discontinued or abandoned as provided in Section 6.9
above.
h. Notice and Procedures for Board of Adjustment Hearing. Prior to any
hearing before the Board of Adjustment under this section, the zoning
administrator shall provide the owner of any nonconforming use or structure for
which termination or amortization is sought with at least thirty (30) days prior
written notice of the appeal hearing. Such written notice shall make specific
reference to this section. At the public hearing on the issue, the owner may
appear in person and /or by counsel, and the City and the owner may present any
evidence, written or oral, to the Board, which each deems relevant. The Board
will not be bound by formal rules of evidence. The City will be represented by the
City Attorney. The Board may also retain separate legal counsel to represent and
advise the Board, and the City shall pay for such counsel.
SECTION 3
AMENDMENT OF SECTION 6.11
Section 6.11 of the Southlake Comprehensive Zoning Ordinance is hereby amended to
provide as follows:
6.11 AMORTIZATION OF NONCONFORMING USES
a. The Board of Adjustment may from time to time on its own motion, on the
City's motion, or upon cause presented by interested persons, inquire into the
existence, continuation or maintenance of any nonconforming use within the City.
The Board of Adjustment may take specific action to abate, remove, limit or
terminate any nonconforming use or structure under the guidelines established in
this section. The concurring vote of four (4) members of the Board shall be
necessary to take any such action.
b. The Board of Adjustment may order the immediate termination of a
nonconforming use or structure if the Board determines that the owner's
investment in the nonconforming use or structure has been recouped through
amortization over time.
C. Alternatively, if the Board determines that the owner's investment in the
nonconforming use or structure has not been recouped through amortization at
the time of the hearing, the Board of Adjustment may order the termination of a
nonconforming use or structure on such future date by which the Board
determines the owner's investment in the nonconforming use or structure will be
recouped through amortization.
d. In making any determination under this section, the Board of Adjustment
shall first hold a public hearing. The zoning administrator shall provide the owner
of any nonconforming use or structure for which termination or amortization is
sought with at least thirty (30) days prior written notice of the action sought.
Such written notice shall make specific reference to this section.
e. In making any determination under this section, the Board shall consider
the investment of the owner in the non - conforming structure or non - conforming
use, the past and /or anticipated future profitability of the non - conforming
structure or non - conforming use, the desirability for all property to conform to the
regulations of this ordinance, the character of the area surrounding the non-
conforming use or structure, the historic uses of the area surrounding the non-
conforming use or structure, the adverse impacts, if any, of the non - conforming
structure or use on the surrounding property and neighborhood, the diminishment
of value, if any, of the surrounding property and neighborhood due to the
continuance of the non - conforming structure or non - conforming use, the property
rights both of the owner of the non - conforming structure or non - conforming use
and the owners of adjacent and nearby properties, and the public welfare,
including any person or persons affected by the continuation of the non-
conforming structure or non - conforming use.
f. The City will bear the burden of proof and persuasion on the desirability
for all property to conform to the regulations of this ordinance, the character of
the area surrounding the non - conforming use or structure, the historic uses of
the area surrounding the non - conforming use or structure, the adverse impacts,
if any, of the non - conforming structure or use on the surrounding property and
neighborhood, the diminishment of value, if any, of the surrounding property and
neighborhood due to the continuance of the non - conforming structure or non-
conforming use, the property rights of the owners of adjacent and nearby
properties, and the public welfare, including any person or persons affected by
the continuation of the non - conforming structure or non - conforming use. The
owner of the nonconforming structure or use will bear the burden of proof and
persuasion on the owner's property rights, the investment of the owner in the
non - conforming structure or non - conforming use, and the past and /or
anticipated future profitability of the non - conforming structure or non - conforming
use. The decision of the Board of Adjustment shall be final.
g. Prior to any hearing before the Board of Adjustment under this section, the
zoning administrator shall provide the owner of any nonconforming use or
structure for which termination or amortization is sought with at least thirty (30)
days prior written notice of the appeal hearing. Such written notice shall make
specific reference to this section. At the public hearing on the issue, the owner
may appear in person and /or by counsel, and the City and the owner may
present any evidence, written or oral, to the Board, which each deems relevant.
The Board will not be bound by formal rules of evidence. The City will be
represented by the City Attorney. The Board may also retain separate legal
counsel to represent and advise the Board, and the City shall pay for such
counsel.
SECTION 4
AMENDMENT OF SECTION 44.3
Section 44.3, subsections (d), (e) and (f) of the Southlake Comprehensive Zoning
Ordinance is hereby amended to provide in pertinent part as follows:
44.3 POWERS AND DUTIES
The Board of Adjustment shall have all powers and duties granted by this
ordinance and by Sections 211.008- 211.011, Texas Local Government Code,
and shall be governed by same. These powers and duties shall include the
following:
d. Termination or Amortization of Nonconforming Structure or Use -
The Board may order the immediate termination of a nonconforming use or
structure on the terms and subject to the provisions and procedures established
in Section 6.11 of this ordinance.
e. Reconstruction of Nonconforming Use - The Board may permit the
repair or reconstruction and occupancy of a nonconforming structure or a
structure containing a nonconforming use where the structure has been
damaged in excess of fifty percent (50 %) but less than the total value, on the
terms and subject to the provisions and procedures established in Section 6.10
of this ordinance.
f. Resumption of Discontinued or Abandoned Nonconforming Use -
Within the limits prescribed in Section 6.9, the Board may review nonconforming
uses which have been abandoned or discontinued to determine whether such
uses should be allowed to resume operations on the terms and subject to the
provisions and procedures established in Section 6.10 of this ordinance.
The remainder of Section 44.3 shall remain unchanged.
SECTION 5
PROVISIONS CUMULATIVE
This ordinance shall be cumulative of all provisions of ordinances and of the Code of
Ordinances of the City of Southlake, Texas, as amended, except where the provisions of this
ordinance are in direct conflict with the provisions of such ordinances and such Code, in which
event the conflicting provisions of such ordinances and such Code are hereby repealed.
SECTION 6
PROVISIONS SEVERABLE
It is hereby declared to be the intention of the City Council that the phrases, clauses,
sentences, paragraphs, and sections of this ordinance are severable, and if any phrase, clause
sentence, paragraph or section of this ordinance shall be declared unconstitutional by the valid
judgment or decree of any court of competent jurisdiction, such unconstitutionality shall not
affect any of the remaining phrases, clauses, sentences, paragraphs and sections of this
ordinance, since the same would have been enacted by the City Council without the
incorporation in this ordinance of any such unconstitutional phrase, clause, sentence,
paragraph or section.
SECTION 7
RIGHTS AND REMEDIES SAVED
All rights and remedies of the City of Southlake are expressly saved as to any and all
violations of the provisions of the City Code amended or revised herein, or any other
ordinances affecting the matters regulated herein which have accrued at the time of the
effective date of this ordinance; and, as to such accrued violations and all pending litigation,
both civil and criminal, whether pending in court or not, under such ordinances, same shall not
be affected by this ordinance but may be prosecuted until final disposition by the courts.
SECTION 8
PUBLICATION
The City Secretary of the City of Southlake is hereby directed to publish the proposed
ordinance or its caption and penalty together with a notice sitting out the time and place for a
public hearing thereon at least ten (10) days before the second reading of this ordinance, and
if this ordinance provides for the imposition of any penalty, fine or forfeiture for any violation of
any of its provisions, then the City Secretary shall additionally publish this ordinance or its
caption and penalty in the official City newspaper one time within ten (10) days after passage
of this ordinance, as required by Section 3.13 of the Charter of the City of Southlake.
SECTION 9
PUBLICATION IN BOOK OR PAMPHLET FORM
The City Secretary of the City of Southlake is hereby authorized to publish this
ordinance and the exhibits to this ordinance in book or pamphlet form for general distribution
among the public, and the operative provisions of this ordinance and the exhibits to this
ordinance as so published shall be admissible in evidence in all courts without further proof
than the production thereof.
SECTION 10
PENALTY FOR VIOLATION
Any person, firm or corporation who violates, disobeys, omits, neglects or refuses to
comply with or who resists the enforcement of any of the provisions of this Ordinance shall be
fined no more than Two Thousand Dollars ($2,000.00) for each violation of this ordinance.
Each day that a violation is permitted to exist shall constitute a separate offense.
SECTION 11
EFFECTIVE DATE
This ordinance shall be in full force and effect from and after its passage and publication
as required by law, and it is so ordained.
Passed and approved on first reading on this day of
2010.