§ 4.1. Nonconforming Uses and Structures

4.1.1   Nonconformities

Any lawful Use of a property or structure existing at the time of passage of this Ordinance that does not conform to the regulations prescribed in this Ordinance shall be deemed a legal nonconforming use or structure.

4.1.2   Nonconforming Uses

A.

If no structural alterations (except those required by law or ordinance) are made, a nonconforming use may be extended throughout a building. A Nonconforming Use of a building may not be changed to another Nonconforming Use of any kind.

B.

The right of a Nonconforming Use to continue shall be subject to such regulations as to the maintenance of the premises and conditions of operation as the City may reasonably require for the protection of adjacent property.

4.1.3   Nonconforming Structures

A.

A Nonconforming Structure may continue to be occupied and may be maintained, repaired, or altered provided such action does not create an additional nonconformity or increase the amount, size, or area of the existing nonconformity.

B.

If fifty (50) percent or more of the improvement's appraised value, as determined by the most recent appraisal records of the Wise County Appraisal District, of a Nonconforming Structure is destroyed by fire, the elements, or some other cause, then the Structure may be rebuilt only in conformity with the provisions of this Ordinance.

C.

If less than fifty (50) percent of the improvement's appraised value, as determined by the most recent appraisal records of the Wise County Appraisal District, of a Nonconforming Structure is destroyed by fire, the elements, or some other cause, then the Structure may be reconstructed as it was before the partial destruction but only to its original dimensions and floor area, and provided that such reconstruction is completed within one (1) year (i.e., three hundred sixty-five (365) calendar days) following the event that caused the partial destruction. If reconstruction is delayed by contested insurance claims, litigation, or some other similar cause, then the one-year reconstruction period may be extended by the Board of Adjustment (BOA) for an additional one (1) year period following the conclusion of such delaying event.

D.

Nothing in this Ordinance shall be construed to prohibit the upgrading, strengthening, repair or maintenance of any part of any Structure, conforming or nonconforming, that is declared unsafe or uninhabitable by the Building Official, unless such repairs or maintenance equal or exceed fifty (50) percent of the Structure's appraised value, as determined by the most recent appraisal records of the Wise County Appraisal District.

4.1.4   Amortization of Nonconforming Uses and Structures

A.

Initiation of Compliance Case. Only the City Council, by majority vote, may request that the Board of Adjustment consider establishing a compliance date for a Nonconforming Use.

B.

Public Hearing Process. Upon receiving a request from the City Council under A above, staff shall schedule the First Public Hearing before the BOA. The BOA may establish a compliance date only after holding two (2) separate public hearings. Each public hearing shall be at least thirty (30) days apart, but no more than ninety (90) days apart.

(1)

First Public Hearing. The BOA shall hold a public hearing to determine whether continued operation of the Nonconforming Use will have an adverse effect on nearby properties. If, based on the evidence presented at the public hearing, the BOA determines that continued operation of the Use will have an adverse effect on nearby properties, it shall schedule a second public hearing to establish a compliance date for the Nonconforming Use; otherwise, it shall not. In determining whether the continued operation will have an adverse effect on nearby properties, the Board shall consider the following factors:

(a)

The character of the surrounding neighborhood.

(b)

The degree of incompatibility of the Use with the Zoning District in which it is located.

(c)

The manner in which the Use is being conducted.

(d)

The hours of operation of the Use.

(e)

The extent to which continued operation of the Use may threaten public health or safety.

(f)

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

(g)

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

(h)

The extent to which traffic or parking problems may be created or perpetuated by continued operation of the Use.

(i)

Any other factors the BOA in its discretion determines relevant to the issue of whether continued operation of the Use will adversely affect nearby properties.

(2)

Second Public Hearing.

(a)

At the second public hearing to set the date for compliance, the BOA shall, in accordance with the law, provide the compliance date for the Nonconforming Use under a plan whereby the owner's actual investment in the use before the time that the use became nonconforming, can be amortized. A definite time period shall be set. The following factors shall be considered by the BOA in determining a reasonable amortization period:

(i)

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

(ii)

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

(iii)

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

(iv)

The anticipated annual recovery of investment, including net income and depreciation.

(v)

A reasonable wind-up period for the nonconforming use.

(b)

If the BOA, at the first public hearing, requests financial documentation and/or records from the owner relating to the factors listed under (a) above, the owner shall provide said documents and/or records at least thirty (30) days before the second public hearing. If the owner does not provide the requested documentation, the BOA is authorized to make its determination of a compliance date based upon any reasonably available public records as well as public testimony at the hearing. Failure by owner to provide the requested financial documents and records shall not prevent the BOA from setting a compliance date.

C.

Ceasing Operations. If the BOA establishes a compliance date for a Nonconforming Use, the Nonconforming Use shall cease operations on that date and it may not operate thereafter unless it becomes a conforming Use.

D.

Finality of Decisions.

(1)

Decisions that cannot be Immediately Appealed. A decision by the BOA that the continued operation of a Nonconforming Use shall have an adverse effect on neighboring property and the BOA's decision to schedule a second public hearing to establish a compliance date are not final decisions and cannot be immediately appealed.

(2)

Decision to Deny a Request to Establish a Compliance Date. A decision by the City Council to deny a request to establish a compliance date is final unless appealed to state court within ten (10) calendar days in accordance with Chapter 211 of the Texas Local Government Code, as amended.

(3)

Decision Setting a Compliance Date. A decision by the BOA setting a compliance date is final unless appealed to state court within ten (10) calendar days in accordance with Chapter 211 of the Texas Local Government Code, as amended.

4.1.5   Abandonment of Nonconforming Uses and Structures

A.

If a Nonconforming Use or Structure is abandoned as set forth in Subsection B of this Section, any future use of the premises shall be in conformity with the provisions of this Ordinance, as amended, and with all other applicable City codes or ordinances that are in effect at the time the Use is resumed or the Structure is re-occupied.

B.

A Nonconforming Use or Structure shall be deemed "abandoned" in the following circumstances, except as specifically provided otherwise in this Ordinance:

(1)

The Use ceases to operate for a continuous period of one hundred eighty (180) calendar days;

(2)

The Structure remains vacant for a continuous period of one hundred eighty (180) calendar days with all or some of the utilities disconnected, or with delinquent utility payments for all or some of the utilities; or

(3)

In the case of a Temporary Building, the Temporary Building is moved from the premises for any length of time, except as provided herein.

C.

Notwithstanding the foregoing, a Nonconforming Use or Structure shall not be deemed "abandoned" for a period of up to one (1) year on properties that are for sale or lease, provided the owner is actively promoting the sale or lease and there is evidence of continual use of signs, advertising or listings.

D.

Normal cessation of a Use, or temporary discontinuance for purposes of maintenance and rebuilding after damage or destruction, as authorized in this Section, shall not be included in calculating the period of discontinuance.

4.1.6   Moving of Nonconforming Structure or Building

No Nonconforming Structure or Building shall be moved in whole or in part to any other location on the lot, or to any other location or lot, unless every portion of such Nonconforming Structure or Building is in compliance with all the regulations of the zoning district wherein the Nonconforming Structure or Building is to be relocated. Such Nonconforming Structure or Building relocation shall conform to all applicable City codes or ordinances in effect at the time of relocation.

4.1.7   Right to Proceed Preserved

Nothing contained in this Section is intended to alter any rights that may have accrued to proceed under prior regulations, pursuant to Texas Local Government Code Chapter 43, or Chapter 245.