§ 20. NONCONFORMING USES AND STRUCTURES

20-100.  A nonconforming status shall exist under the following provisions of this ordinance:

(1)

When a use or structure which does not conform to the regulations prescribed in the district in which such use or structure is located was in existence and lawfully operating prior to the adoption of the previous zoning ordinance and has been operating since without discontinuance.

(2)

When on the effective date of this ordinance, the use or structure was in existence and lawfully constructed, located and operating in accordance with the provisions of the previous zoning ordinance or which was a nonconforming use thereunder, and which use or structure does not now conform to the regulations herein prescribed for the district in which the use or structure is located.

(20-101) No nonconforming use or structure may be expanded or increased beyond the lot or tract upon which such nonconforming use is located as of the effective date of this ordinance except to provide off-street loading or off-street parking space upon approval of the board of adjustment.

(20-102) Any nonconforming use may be changed to a conforming use and once such change is made, the use shall not thereafter be changed back to a nonconforming use.

(20-103) Where a conforming use is located in a nonconforming structure, the use may be changed to another conforming use by securing a certificate of occupancy from the building official.

(20-104) Whenever a nonconforming use is abandoned, all nonconforming rights shall cease and the use of the premises shall thenceforth be in conformity with this ordinance. Abandonment shall involve the intent of the user or owner to discontinue a nonconforming operation and the actual act of discontinuance. Discontinuance of a business for ninety (90) continuous days or the vacancy of a building or premises occupied by a nonconforming use shall be construed as conclusive proof of intent to abandon the nonconforming use. Any nonconforming use which, not involving a permanent type structure, is moved from the premises shall be considered to have been abandoned.

(20-105) If a nonconforming structure or a structure occupied by a nonconforming use is destroyed by fire, the elements or other cause, it may not be rebuilt except to conform to the provisions of the ordinance from which this subsection derives. In the case of partial destruction of a nonconforming structure not exceeding 60 per cent of its reasonable value, reconstruction may be permitted after a hearing and favorable action by the board of adjustment, but the size and function of the nonconforming use or structure shall not be expanded.

(Ord. No. 2017-2270 , § 16, 8-2-2017)

20-200.  Right-of-way acquisition by governmental agency.

(20-201)  Definitions. As used in this section, the following terms shall have the respective meanings ascribed to them:

Governmental agency shall mean the United States of America, State of Texas, County of Denton, the City of The Colony, or any other governmental agency with the ability to exercise eminent domain powers.

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

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

(20-202)  Exemption permitted. In the event a right-of-way acquisition by a governmental agency causes a property or its existing improvements to be in violation of a city zoning ordinance, subdivision rule, or other land use regulation or ordinance, the property shall be exempt from the provision to the extent the violation is caused by the right-of-way acquisition, subject to the following:

(A)

Zoning change.

(1)

The exemption shall not apply to a property that undergoes a zoning change initiated by the property owner subsequent to the right-of-way acquisition; instead, the property shall have a nonconforming status to the extent that any nonconformance with city ordinances 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 city's comprehensive zoning ordinance.

(2)

A zoning change initiated by the city shall not cause a property to lose the exemption provided by this section for property affected by right-of-way acquisitions.

(B)

Safety hazard. Nothing in this provision shall be construed to permit any site element to create a traffic safety hazard or another life safety hazard.

(C)

Compensation for noncompliance.

(1)

The exemption shall not apply to property if the right-of-way acquisition renders the remainder of the property unusable, 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 in compliance with city codes, ordinances, and regulations.

(2)

The exemption shall not apply to the property if the governmental agency offered compensation to the property owner for demolition, removal, relocation, or replacement of improvements or other measures curative of the violation of city codes or ordinances caused by the right-of-way acquisition.

(3)

For property ineligible for an exemption under this subsection (C), the planning director is authorized to:

a.

Provide notice to any affected property owner, lien holder, and/or certificate of occupancy holder, listing any items of noncompliance; and

b.

File an affidavit in the Denton County deed records noting the item(s) of noncompliance, advising that compensation was paid for such noncompliance, and that a certificate of occupancy shall not issue until such noncompliance is cured. Once the property and its improvements are brought into full compliance with all applicable ordinances of the city, the planning director shall file an affidavit in the Denton County deed records noting such compliance.

(4)

If a property is ineligible for an exemption under this subsection (C), the building official is authorized to revoke a certificate of occupancy of any building or structure for noncompliance with a code, ordinance, or regulation.

(5)

The building standards commission is authorized to issue an order of demolition a minimum of 90 days after the certificate of occupancy has been revoked for any building or structure on property ineligible for an exemption under subsection (C)(1).

(20-203)  Effective date. The provisions of this section shall apply to any property acquired by eminent domain after January 1, 2009.

(Ord. No. 09-1835, § 1, 11-3-2009)