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Item 6DCITY OF SOUTH LAKE MEMORANDUM September 12, 2012 To: Shana Yelverton, City Manager From: Ken Baker, AICP — Director of Planning & Development Services Subject: Amendment of Zoning Ordinance No. 480 -KKKK Action Requested: Conduct a public hearing and consider second reading approval of an amendment to the City of Southlake Zoning Ordinance 480, as amended, as it pertains to nonconforming uses and nonconforming structures. Background Information: The City Council has requested Staff to bring forward an amendment to the City of Southlake Zoning Ordinance No. 480, as amended, to address nonconforming conditions of property which may be created as a result of the acquisition of real property for the purpose of public improvements. The amendment proposes adding language to the Zoning Ordinance to address minimum yard (building setback), lot coverage, impervious coverage and fencing nonconformities created as a result of real property acquisition for public improvements such as street and utility projects. Citizen Input/ Board Review: A public hearing was held by the Planning and Zoning Commission on August 23, 2012. No comments were received. Legal Review: The City Attorney has reviewed and provided revisions to the Ordinance. The revisions are incorporated herein. P & Z Action: August 23, 2012; Approved (7 -0) subject to any changes recommended by the City Attorney prior to going before the City Council. City Council Action: September 4, 2012; Approved first reading (7 -0) on consent agenda; Attachments: Attachment A - Redline- Strikeout of Proposed Ordinance No. 480 -KKKK Pages 2 -3; Attachment B — Ordinance No. 480 -KKKK Pages 4 -9 Page 1 Attachment A City of Southlake Zoning Ordinance No. 480 -KKKK Redline - Strilkeout Section 6 - Nonconforming Uses 6.10 DESTRUCTION OR DAMAGE TO NONCONFORMING STRUCTURE OR USE (Amended by Ordinance 480 -6666) 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. Page 2 4. If a legal nonconforming structure is: (a) totally destroyed or partially damaged by the elements, fire, other catastrophe or casualty; and (b) the nonconformity is completely or partially the result of noncompliance with minimum yard (building setback), maximum lot coverage or maximum impervious coverage regulations; and (c) the lot where the structure is or was located was decreased in size before the destruction or damage as the result of land or right -of -way acquisition by a public agency having the power of eminent domain; the building official shall include the area acquired by the public agency with the area of the lot when deciding whether the structure complies with the minimum yard (building setback), maximum lot coverage and maximum impervious coverage regulations. This subsection only applies when deciding whether a property owner is entitled to a building permit after a legal nonconforming structure is totally destroyed or partially damaged. Any reconstruction or replacement shall not cause a greater extent of nonconformance than the pre - existing structure excluding the area acquired by the public agency. The reconstruction or replacement shall not be in conflict with the real estate interest of any public agency and must otherwise conform to the regulations of this Ordinance. The expansion, enlargement or intensification of a preexisting nonconforming use or structure during reconstruction or replacement shall not be allowed under this subsection and shall be regulated by the provisions of Section 6. Section 39 — Screening and Fencing Section 39.8 Fence Maintenance Requirements — Existinq fences removed, damaged or destroyed due to land or right -of -way acquisition by a public agency with the power of eminent domain, shall be permitted to be relocated or reconstructed usina the same or similar materials and in the same or similar configuration as existed prior to the land or right -of- way acquisition such that the fence is not in conflict with the real estate interest of any public agency and otherwise conforms to the regulations of this Ordinance. Page 3 Attachment B ORDINANCE NO. 480 -KKKK AN ORDINANCE AMENDING ORDINANCE NO. 480, AS AMENDED, THE COMPREHENSIVE ZONING ORDINANCE OF THE CITY OF SOUTHLAKE, TEXAS; AS IT PERTAINS TO NON - CONFORMING USES AND STRUCTURES; PROVIDING THAT THIS ORDINANCE SHALL BE CUMULATIVE OF 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 XI, Section 5 of the Texas Constitution and Chapter 9 of the Local Government Code; and WHEREAS, the city has adopted Ordinance No. 480, as amended, as the Comprehensive Zoning Ordinance for the city; 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 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: Page 4 SECTION 1 Section 6.10a of the Comprehensive Zoning Ordinance No. 480, as amended, is hereby amended by adding the following: 4. If a legal nonconforming structure is: (a) totally destroyed or partially damaged by the elements, fire, other catastrophe or casualty; and (b) the nonconformity is completely or partially the result of noncompliance with minimum yard (building setback), maximum lot coverage or maximum impervious coverage regulations; and (c) the lot where the structure is or was located was decreased in size before the destruction or damage as the result of land or right -of -way acquisition by a public agency having the power of eminent domain; the building official shall include the area acquired by the public agency with the area of the lot when deciding whether the structure complies with the minimum yard (building setback), maximum lot coverage and maximum impervious coverage regulations. This subsection only applies when deciding whether a property owner is entitled to a building permit after a legal nonconforming structure is totally destroyed or partially damaged. Any reconstruction or replacement shall not cause a greater extent of nonconformance than the pre- existing structure excluding the area acquired by the public agency. The reconstruction or replacement shall not be in conflict with the real estate interest of any public agency and must otherwise conform to the regulations of this Ordinance. The expansion, enlargement or intensification of a preexisting nonconforming use or structure during reconstruction or replacement shall not be allowed under this subsection and shall be regulated by the provisions of Section 6. Page 5 SECTION 2 Section 39.8 of the Comprehensive Zoning Ordinance No. 480, as amended, is hereby amended by adding the following: j. Existing fences removed, damaged or destroyed due to land or right -of -way acquisition by a public agency with the power of eminent domain, shall be permitted to be relocated or reconstructed using the same or similar materials and in the same or similar configuration as existed prior to the land or right -of- way acquisition such that the fence is not in conflict with the real estate interest of any public agency and otherwise conforms to the regulations of this Ordinance. SECTION 3 This ordinance shall be cumulative of all provisions of ordinances of the City of Southlake, Texas, except where the provisions of this ordinance are in direct conflict with the provisions of such ordinances, in which event the conflicting provisions of such ordinances are hereby repealed. SECTION 4 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. Page 6 SECTION 5 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 6 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 7 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 further proof than the production thereof. Page 7 SECTION 8 The City Secretary of the City of Southlake is hereby directed to post the proposed ordinance in its entirety on the City website 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 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 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 the 1st reading the day of , 2012. MAYOR ATTEST: CITY SECRETARY PASSED AND APPROVED on the 2nd reading the day of MAYOR ATTEST: CITY SECRETARY Page 8 APPROVED AS TO FORM AND LEGALITY: CITY ATTORNEY DATE: ADOPTED: EFFECTIVE: Page 9