Item 7CCity of Southlake
Department of Planning
MEMORANDUM
November 12, 2003
TO: Honorable Mayor and City Council Members
FROM: Bruce Payne, AICP, Planning Director
SUBJECT: Ordinance No. 480 -WW- Discontinuance of Nonconforming Uses
REQUESTED ACTION: Consider approval of second reading for proposed Ordinance No. 480 -WW
regarding the discontinuance of nonconforming uses.
BACKGROUND: The court of appeals decision regarding the Hanson Aggregate
discontinuance or abandonment of a non - conforming use has prompted the
need to better define what constitutes a discontinuance or abandonment of
a use within our zoning ordinance. The City Attorney has prepared an
amendment to address this deficiency.
FINANCIAL
CONSIDERATIONS: None
LEGAL REVIEW: Amendment was prepared and reviewed by the City Attorney
P &Z ACTION: October 23, 2003; recommended Approval (7 -0)
COUNCIL ACTION: November 4, 2003; Approved first reading on Consent (7 -0)
SUPPORTING
DOCUMENTS: Attachment A- Letter from City Attorney's office.
Attachment B -Draft Ordinance No. 480 -WW.
M \Community Development \WP - FILES \MEMO \2003cases \Ordinance 480- WW.doc
6000 WESrERNt PLACE TELEPH NE: (817) 332 -2580
1 31TH 200 Talor ISO IIS S l �.IIl TOLL FREE: (800) 318 - 3400
I -30 AT BRYANT -1RVIN R OAD FACSIMILE: (817) 332 -4740
FORT WORTH,TExAs76107 -4654 L.L. DEN-N: (94 3
EMAIL: TOASE@TOASE.COM Attorneys COL141SC)OrS DENTON METRO: (972) 434-3834
WEBSITE: WWW.TOASE.COM
TIM G. SRALLA
extension 228
tsralla @toase.com
September 19, 2003
Mr. Bruce Payn
Director of PlailKng and
Comm Development
City of S thlake
1400 in Street , Suite 310
Sou ake, Texas 76092
Certified Civil Appellate Law Specialist
Texas Board of Legal Spec iaiization
Re: Revision of Zoning Ordinance relating to discontinuance of nonconforming uses
Bruce:
Allen and I have prepared the attached draft ordinance to allow termination of
nonconforming uses without necessity of proving an intent to abandon the use, in compliance with
the recent decision of the court of appeals in the Hanson litigation. Please review the draft and
provide me with any questions, comments or concerns you may have.
As you will note, we revised not only Section 6.9, but also subsections d and f of Section 44,
to remove ambiguity as to the meaning ofthe term "discontinuance" since it will now have a distinct
and separate meaning from abandonment.
Also, I would like to bring to your attention that under the previous ordinance, the use could
not have been operated for a period of 6 months in order for an abandonment to occur. Under this
draft, no specific period of time would be required. Rather, all that would be required would be an
intent of the owner to permanently close or cease the use, that is, to abandon the use. A cessation
of activity for 120 days is presumed to constitute an intent to abandon, in which case the burden of
proof would shift to the owner to establish that he had no such intent, despite the cessation of use.
Also, allowing the property to become dilapidated or noncompliant with city codes is also
presumed to constitute an intent to abandon the use. Under the revised Section 6.9, however, this
presumption would be rebuttable. I direct your attention to Section 6.7, however, which currently
provides that if a building becomes unsafe or unlawful due to lack of repairs or maintenance, and
is declared to be unsafe or unlawful by an authorized city official, it may not be restored as a
nonconforming use. Thus, Section 6.7 as written would be more strict than the revised Section 6.9.
(It is also more strict than the current Section 6.9, which creates an irrebuttable presumption of'
abandonment, but only if the property is substandard, and the property is not being used for six
months.) I suggest that this inconsistency between Section 6.7 and 6.9 be eliminated. It seems to
Attachment A
Page 1
September 19, 2003
Page 2
us that if an owner of a nonconforming use is using the property, and is cited for a substandard
building condition of which they may not have had notice prior to such a citation, the city may want
to permit some leniency, and allow the owner a period cf time to rectify the cited deficiency, and if
the deficiency is not corrected would they lose their ability to restore the premises and continue their
nonconforming use status.
Please call me to discuss this issue.
Sincerely,
Tim G. Sralla
TGS:as
Enc.
WAS..Ihiekc \LETTM%Payndmce TGSas.wpd
cc: t"Shana Yelverton
Allen Taylor
[dictated but not read]
Attachment A
Page 2
CITY OF SOUTHLAKE, TEXAS
ORDINANCE NO. 480-
AN ORDINANCE AMENDING ORDINANCE NO. 480, AS AMENDED, THE
COMPREHENSIVE ZONING ORDINANCE OF THE CITY OF
SOUTHLAKE, TEXAS; REVISING SECTION 69 "DISCONTINUANCE OR
ABANDONMENT" AS IT RELATES TO THE STATUS OF NON-
CONFORMING USES; REVISING OTHER PERTINENT SECTIONS FOR
CONSISTENCY; PROVIDING THAT THIS ORDINANCE SHALL BE
CUMULATIVE OR ALL ORDINANCES; PROVIDING A SEVERABILITY
CLAUSE; PROVIDING FOR A PENALTY FOR VIOLATIONS HEREOF;
PROVIDING A SAVINGS CLAUSE; PROVIDING FOR PUBLICATION IN
PAMPHLET FORM; 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 Xl, Section 5, of the Texas Constitution and Chapter
9 of the Texas Local Government Code; and
WHEREAS, the City of Southlake has adopted Ordinance No. 480, as amended, as the
Comprehensive Zoning Ordinance for the City; and
WHEREAS, the City Council has determined that a legal non - conforming use that have been
discontinued for 180 days should be terminated regardless of the intent of the owner; and
WHEREAS, the City Council has determined that it is appropriate and in the best interest
of the City to promote the public health, safety and general welfare of its residents by amending
Ordinance No. 480 to provide to the termination of a legal non - conforming use if such use is
discontinued for 180 days, as provided herein; and
WHEREAS, the City Council has given published notice and held public hearings with
respect to the amendment of the Zoning Ordinance as required by law.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF SOUTHLAKE, TEXAS:
SECTION 1.
Section 6.9, "Discontinuance or Abandonment" of Ordinance No. 480, as amended, is hereby
amended to read as follows in its entirety:
Discontinuance or Abandonment
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
Attachment B
Page 1
use shall be inconformity with the provisions ofthis ordinance. The City has
determined that abandonment of a non - conforming use and discontinuance
of a non - conforming use are separate and distinct acts and the City has
established a different review standard for each act.
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:
A. the closure or cessation of the use for a period of 120
consecutive days;
B. in the determination of the Zoning Administrator, the
structure or use is (1) in an advanced stage of dilapidation; (2)
is non - compliant with one or more health and safety codes
such as the Building, Plumbing, Electrical and Mechanical
Codes that govern the use of structures designed for human
occupancy; or (3) is otherwise unsafe for the continuation of
such use or occupancy.
If any of these conditions, events or conduct exists, then the owner
shall bear the burden of proof and production to establish that the
owner did not intend to abandon the use.
For the purpose of this section, "discontinuance" shall be defined as
a closure or cessation of a use for a period of 180 consecutive days,
irrespective of whether the owner has an intent to abandon the use.
When land or a structure that is non - conforming has historically been
used only on a seasonal basis, such use shall be deemed to have been
discontinued if, irrespective of whether the owner has an intent to
abandon the use, either: (1) such use is closed or ceases to operate for
a period of 180 consecutive days, or (2) such property is not operated
as a non - conforming use in a bonafide manner during such season.
b. Upon evidence of hardship, the Board of Adjustment shall have the power to
extend the time limits as set forth in Paragraph "a" not to exceed a period of
one (1) year.
Amendment oiZoning Ordinance to Allow Termination of Non - conforming Use Regardless of Intent Page 2
W:\ southlake \Ordinances\ZoningordAmend.001 (tgs revision).wpd
Attachment B
Page 2
SECTION 2.
Section 44.3.d of Ordinance No. 480, entitled "Discontinuance or Amortization of
Nonconforming Use," is hereby amended to read as follows in its entirety:
d. Termination or Amortization of Nonconforming Use
The Board may order the termination of a nonconforming use or structure
under a reasonable plan whereby the owner's investment in the
nonconforming use or structure can be recouped through amortization over
a definite period of time, taking into consideration the general character of
the neighborhood and the necessity for all property to conform to the
regulations of this ordinance.
SECTION 3.
Section 44.3.E of Ordinance No. 480, entitled "Resumption of Abandoned Nonconforming
Use," is hereby amended to read as follows in its entirety:
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. Such
action by the Board shall consider any unnecessary hardship on the property
owner if the use is discontinued and shall have due regard for the public
welfare, the character of the area surrounding such use, and the conservation,
preservation and protection of surrounding properties and their values.
SECTION 4.
This ordinance shall be cumulative of all provisions of ordinances of the City of Southlake,
Texas, except where the provisions ofthis ordinance are in direct conflict with the provisions of such
ordinances, in which event the conflicting provisions of such ordinances are hereby repealed.
SECTION 5.
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.
Amendment of Zoning Ordinance to Allow Termination of Non - conforming Use Regardless of Intent Page l
W: 1Southl2ke \OrdinanceslZoning0rdAmend.001 (tgs revision).vpd
Attachment B
Page 3
SECTION 6.
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 not more
than Two Thousand Dollars ($2,000.00) for each offense. Each day that a violation is permitted to
exist shall constitute a separate offense.
SECTION 7r
All rights and remedies of the City of Southlake are expressly saved as to any and all
violations of the provisions of Ordinance No. 480, as amended, or any other ordinances affecting
zoning yard regulations 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.
The City Secretary of the City of Southlake is hereby authorized to publish this ordinance
in book or pamphlet form for general distribution among the public, and the operative provisions of
this ordinance as so published shall be admissible in evidence in all courts without fartherproof than
the production thereof.
SECTION 9.
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 setting 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 days after final passage of this ordinance,
as required by Section 3.13 of the Charter of the City of Southlake.
SECTION 10.
This ordinance shall be in full force and effect from and after its date of passage and
publication as required by law, and it is so ordained.
PASSED AND APPROVED on the I" reading the day of 1 2003.
THE HONORABLE ANDY WAMBSGANSS, MAYOR
Amendment of Zoning Ordinance to Allow Termination of Non- conforming Use Regardless of Intent Page 4
W:\ southlake \Ordinances\Zoning0rdAmend.001 (tgs revision ).wpd
Attachment B
Page 4
ATTEST:
LORI FARWELL, CITY SECRETARY
PASSED AND APPROVED on the 2 " reading the day of , 2003.
THE HONORABLE ANDY WAMBSGANSS, MAYOR
ATTEST:
LORI FARWELL, CITY SECRETARY
APPROVED AS TO FORM AND LEGALITY:
CITY ATTORNEY
DATE:
ADOPTED:
EFFECTIVE:
Amendment of Zoning Ordinance to Allow Termination of Non - conforming Use Regardless of Intent Fake
W:\ Southlake \Ordinances\ZoningOrdAmend.001 (tgs revision).wpd
Attachment B
Page 5