§ 34. Non-conforming uses, lots and structures.

A.

Purpose and intent. Within the districts established by this ordinance, there may exist buildings or uses of land and buildings 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. Such non-conforming buildings or uses of land and buildings may be continued although they do not conform with the provisions of this ordinance, subject to the limitations and conditions set forth in this section. Such non-conforming uses are declared by this ordinance to be incompatible with permitted uses in the districts involved.

With due regard for the property rights of the persons affected when considered in light of the public welfare, the character of the area surrounding the non-conforming use and the conservation and preservation of surrounding properties and their values, it is the declared purpose of this ordinance that non-conforming uses be eliminated and be required to conform to the regulations prescribed in this ordinance.

B.

Building on non-conforming lots of record. In any district, buildings may be erected on any single lot of record, provided there is access to such buildings from a street and the lot is in the same ownership as recorded on the effective date of this ordinance. This provision shall apply even though the lot fails to meet the minimum requirements for area, width, or depth for the district in which it is located; however, all other requirements shall still apply. All buildings constructed on non-conforming lots of record shall meet all development regulations in the district unless proper variances are granted by the board of adjustment. No building shall be constructed on multiple lots. Whenever construction is desired on multiple lots, the property owner shall replat the property into a single lot.

C.

Non-conforming buildings. Repairs and alterations may be made to a non-conforming building, provided that no structural alterations shall be made except those required by law or ordinance, unless the building is brought into conformity with the provisions of this ordinance.

D.

Non-conforming use of buildings. A non-conforming use of a building shall not be increased or enlarged and no occupancy of additional buildings or land by a non-conforming use shall be permitted except that a non-conforming use of a building may be extended throughout any parts of the building which were manifestly arranged or designed for such use and which were owned or leased by the owner of the non-conforming use on the effective date of this ordinance, provided no structural alterations, except those required by law or ordinance, are made, and provided further that no additional dwelling units shall be added where the non-conforming use results from there being more dwelling units on the lot than is permissible in the district in which the building is located. The board of adjustment shall have the authority to permit an extension of a building which is non-conforming as to uses not to exceed 25 percent of the existing floor area, subject to the development regulations applicable in the zoning district.

E.

Non-conforming use of land. Unless otherwise provided in this section, a non-conforming use of land may not be expanded or extended beyond the area of land actually being occupied by the use at the time it becomes non-conforming, except to provide off street loading or off street parking space facilities. Notwithstanding the above, the board of adjustment may permit an expansion of a non-conforming use of land on a lot of record not to exceed 25 percent of the existing area of the land actually being occupied by the non-conforming use, subject to the development regulations applicable to the zoning district.

F.

Discontinuance or abandonment.

1.

Defined. A non-conforming use, when discontinued or abandoned, shall not be resumed and any further use shall be in conformity with the provisions of this ordinance. Discontinuance or abandonment shall be defined as follows:

a.

When land used for a non-conforming use shall cease to be used in a bona fide manner for the non-conforming use for six consecutive calendar months.

b.

When a building designed or arranged for a non-conforming use shall cease to be used in a bona fide manner as a non-conforming use for a period of six consecutive calendar months.

c.

When a building designed or arranged for a conforming use shall cease to be used in a bona fide manner as a non-conforming use for a period of six consecutive calendar months.

d.

When land or a building used only on a seasonal basis is not used in a bona fide manner as a non-conforming use during such season.

2.

Presumption. There shall be a rebuttable presumption that the property owner intended to discontinue or abandon the non-conforming use if such use ceases for the above time periods.

3.

Deemed to have occurred. Discontinuance or abandonment shall be conclusively deemed to have occurred irrespective of the intent of the property owner if the non-conforming use was dilapidated, substandard, or was not maintained in a suitable condition for occupancy during the above time periods.

4.

Hardship. Upon evidence of hardship, the board of adjustment shall have the power to extend the time limits in subsection F.1., not to exceed one year.

G.

Destruction of non-conforming use.

1.

Destruction. If a non-conforming building or a building occupied by a non-conforming use is destroyed by fire, the elements, or otherwise, it may not be reconstructed or rebuilt except to conform with the provisions of this ordinance unless the destruction amount is less than 50 percent of its fair market value at the time of destruction.

2.

Destruction greater than 50 percent. If the destruction is greater than 50 percent and less than total, the board of adjustment may, after a public hearing, authorize repair, taking into consideration the property owner's circumstances and the effect on surrounding properties.

3.

Destruction less than 50 percent. Upon submission by the owner of sufficient evidence to prove that the destruction amounts to less than 50 percent of the fair market value of the entire non-conforming use and that the destroyed building or structure constituted an integral part of the non-conforming use without which the non-conforming use cannot be profitably operated, the board of adjustment may permit the reconstruction of such destroyed building or buildings under conditions which reasonably allow the owner to recoup his original investment.

4.

Single family residences. Notwithstanding anything herein to the contrary, a single family residence which is destroyed shall be permitted to be reconstructed without board of adjustment approval regardless of the extent of destruction provided that the construction complies with all current building codes and is commenced within six months of the date of destruction. The failure of the owner to start such reconstruction within six months shall forfeit the owner's right to restore or reconstruct the dwelling except in conformance with this ordinance.

5.

Time limit for reconstruction. If the owner of a non-conforming use fails to begin reconstruction of the destroyed building (when permitted to do so by the terms of this ordinance) within six months of the date of destruction or approval by the board of adjustment, the non-conforming building or use shall be deemed to be discontinued or abandoned as provided in subsection F. above.

H.

Additional limitations and provisions regarding non-conforming uses.

1.

Change back to non-conforming. A non-conforming use or building, if changed to a conforming use or building, may not be changed back to a non-conforming use or building.

2.

Accessory uses or structures. No non-conforming accessory use or structure shall continue after the principal use or structure shall have ceased or terminated unless the accessory use or structure shall thereafter conform to the provisions of the zoning district in which it is located.

3.

Vested rights. Nothing contained in this ordinance shall require any change in the plans, construction or designated use of a building or land development project for which a building permit was lawfully issued no more than six months prior to the adoption or amendment or this ordinance, provided, that such construction shall have been started at the time such use became non-conforming and shall have been diligently prosecuted to completion.

4.

Future non-conformities. The foregoing provisions of this section shall also apply to uses made non-conforming by subsequent amendments to the zoning regulations or by annexation into the city limits.

5.

Special exceptions. Any use which is permitted as a special exception use by the board of adjustment shall, upon its establishment, be considered a conforming use in that district, provided that this regulation shall not be so interpreted as to waive any conditions placed on the special exception by the board of adjustment.

6.

The board of adjustment shall, from time to time, on its own motion, or upon cause presented by interested persons, inquire into the existence, continuation or maintenance of any non-conforming use within the city. The board of adjustment may take specific action to abate, remove, limit or terminate any non-conforming use or building under reasonable guidelines as set forth in section 35, board of adjustment. The concurring vote of four members of the board shall be necessary to take such action.

I.

Right-of-way acquisition by governmental agency.

1.

Definitions: As used in this subsection, the following terms shall have the respective meanings ascribed to them:

a.

Building Official shall mean the building official of the City of Haltom City, Texas or his designee.

b.

City Manager shall mean the city manager of the City of Haltom City, Texas or his designee.

c.

Damages to the remainder shall mean the diminution or reduction of value of the remainder property suffered as a result of the acquisition of portion of a property for public right of way.

d.

Governmental agency shall mean the United States of America, State of Texas, County of Tarrant, City of Haltom City, or any other governmental agency with the power to acquire property through the exercise of eminent domain under federal or state laws.

e.

Right-of-way acquisition shall mean the securing of right-of-way through negotiation, purchase, bargain, trade, donation, eminent domain, or other means but not including the dedication of right-of-way through the platting or zoning process.

2.

Exemption from Nonconforming Status:

a.

Except as otherwise provided in this subsection, in the event a right-of-way acquisition by a governmental agency causes a property or its existing improvements to be in violation of then existing development regulations of this Ordinance, the City Manager is authorized to exempt the property from the provisions of this Ordinance to the extent the violation is caused by the right-of-way acquisition, subject to the provisions set forth in this subsection. Upon approval of such exemption, the property shall be considered to be in conformity with the development regulations of this Ordinance and shall not be subject to the provisions of this section regarding termination, changing or other limitations on nonconforming uses.

b.

The owner of property eligible for exemption under this subsection may apply to the City Manager for approval of an exemption. The City Manager may grant an exemption, in whole or in part, from the requirements of otherwise applicable development regulations in this Ordinance, after taking into consideration the following factors:

(1)

Whether the existing use is a permitted use in the zoning district in which it is located.

(2)

Whether the benefits to the public from exempting the property from the development regulations outweigh any adverse effects that might be caused by noncompliance with such regulations;

(3)

Whether the exemption will cause the property to be inadequately served by utilities, road access, drainage and other necessary supporting facilities;

(4)

Whether the location and arrangement of all public and private streets, driveways, parking spaces, entrances and exits provide for a safe and convenient movement of vehicular and pedestrian traffic without adversely affecting the general public or the use of adjacent properties;

(5)

Whether the approval of the exemption will impede the normal and orderly development and improvement of neighboring vacant property;

(6)

Whether the use of the property will be compatible with and not injurious to the use and enjoyment of neighboring property, nor significantly diminish or impair property values within the vicinity;

(7)

Whether there is sufficient landscaping and screening to ensure harmony and compatibility with adjacent properties;

(8)

Whether the property remaining after the right-of-way acquisition is reasonably configured to allow compliance with the development regulations;

(9)

Whether the owner of the property has made reasonable efforts to meet the development standards applicable to the property;

(10)

Whether the cost to bring the property into compliance would be unreasonable compared to the benefits that would be gained from doing so.

c.

In approving an exemption under this subsection, the City Manager may place reasonable terms, conditions, and limitations on the exemption as deemed necessary to protect the public health, safety or welfare or that otherwise limit the adverse impact of the property. The City Manager may revoke an exemption if he determines that the property fails or has ceased to be in compliance with any terms, conditions or limitations that are placed on the exemption.

d.

In granting an exemption under this subsection, the City Manager may authorize the relocation of existing signs that were in compliance with City sign regulations prior to the acquisition of the right-of-way but are required to be moved because of their location within the acquired right-of-way. The City Manager shall determine a location on the property for the relocation of the signs that minimizes the impact of the signs on traffic safety, aesthetics, and the use and enjoyment of adjacent properties.

e.

Property shall not be eligible for exemption under the following circumstances:

(1)

Zoning change. An exemption shall not be valid on property that undergoes a zoning change initiated by the property owner subsequent to the right-of-way acquisition; instead, the property shall have a non-conforming status to the extent that any nonconformance with this Ordinance resulted from a right-of-way acquisition by a governmental agency prior to the rezoning, and shall be treated as a nonconforming use or structure pursuant to the provisions of this section. A zoning change initiated by the City shall not cause property to lose the exemption provided by this subsection.

(2)

Compensation for noncompliance. The exemption shall not apply to property if the right-of-way acquisition is determined to render the remainder of the property unusable pursuant to agreement with the governmental agency or judicial determination, and the governmental agency compensates the property owner for the damage to the remainder. Where such compensation is provided, the property owner is responsible for any curative measures necessary to bring the property into compliance with the development regulations of this Ordinance.

(3)

Safety hazard. An exemption shall not be granted to any development regulation if doing so would create a traffic safety hazard or other life safety hazard on the property or adjacent thereto.

f.

The approval or denial of an exemption by the City Manager may be appealed, in whole or in part, to the Board of Adjustment in accordance with the procedures set forth in Section 35.

g.

Property not eligible for an exemption under this subsection may still be eligible for a variance under the procedures set forth in Section 35.

(Ord. No. O-2013-013-15, § 1, 8-26-13)