18-62 - OTOWN OF PROSPER, TEXAS
ORDINANCE NO. 18-62
AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF PROSPER,
TEXAS, AMENDING THE TOWN'S ZONING ORDINANCE, BY REPEALING
SECTION 7, "NONCONFORMING USES AND STRUCTURES," OF CHAPTER
1, "GENERAL PROVISIONS, ADMINISTRATION, AND PROCEDURES," AND
REPLACING IT WITH A NEW SECTION 7, "NONCONFORM ITIES" OF
CHAPTER 1, "GENERAL PROVISIONS, ADMINISTRATION, AND
PROCEDURES"; PROVIDING FOR A PENALTY; PROVIDING A
SEVERABILITY CLAUSE; PROVIDING FOR PUBLICATION; AND PROVIDING
AN EFFECTIVE DATE.
WHEREAS, after public notice and public hearing as required by law, the Planning &
Zoning Commission of the Town of Prosper, Texas, considered Zoning Case Z18-0006 and has
recommended amending the Town's Zoning Ordinance to encompass those amendments as set
forth herein; and
WHEREAS, after public notice and public hearing as required by law, and upon due
deliberation and consideration of the recommendation of said Planning & Zoning Commission
and of all testimony and information submitted during said public hearing, the Town Council of
the Town of Prosper, Texas, has determined that it is in the public's best interest and in
furtherance of the health, safety, morals, and general welfare of the citizens of the Town to amend
the Town's Zoning Ordinance as set forth herein.
NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF
PROSPER, TEXAS, THAT:
SECTION 1
All of the above premises are hereby found to be true and correct legislative and factual
findings of the Town of Prosper, and they are hereby approved and incorporated into the body of
this Ordinance as if restated herein in their entirety.
SECTION 2
From and after the effective date of this Ordinance, existing Section 7, "Nonconforming
Uses and Structures," of Chapter 1, "General Provisions, Administration, and Procedures," of the
Town's Zoning Ordinance is repealed in its entirety and replaced with a new Section 7,
"Nonconformities," of Chapter 1, "General Provisions, Administration, and Procedures," to read
as follows:
"SECTION 7
NONCONFORMING USES AND STRUCTURES
7.1 Purpose, Definitions, and General Provisions.
A. Purpose
The purpose of this section is to establish provisions for the allowance, potential
alteration or discontinuation of uses and/or structures which do not conform to
currently applicable zoning standards or regulations, but which were in conformance
with standards in place at the time of their inception and have been rendered
nonconforming due to a change in the applicable standards and regulations.
B. Definitions
Nonconformities occur in three (3) general categories: structures, uses, lots or
combinations thereof.
1. Nonconforming Structure means a structure which does not conform to the
regulations (other than the use regulations) of the Zoning Ordinance, but which
was lawfully constructed under the regulations in force at the time of construction.
2. Nonconforming Use means a use that does not conform to the use regulations of
this Ordinance, but was lawfully established under the regulations in force at the
beginning of operation and has been in regular use since that time.
3. Nonconforming Lot means a platted lot of record that does not conform to the lot
area, lot width, or lot depth requirements established in this Ordinance, except as
otherwise provided for in this section.
C. Intent
It is the declared intent of this section that any modification to nonconforming uses and
structures result in greater conformance with the Zoning Ordinance such that
nonconforming uses and structures eventually come into full compliance with this
Zoning Ordinance.
D. General Provisions
Notwithstanding anything to the contrary, nonconforming uses are hereby declared
incompatible with the permitted uses in the districts involved.
7.2 Status
A. For purposes of interpretation, any uses, structures and/or lots, which in whole or part
are not in conformance with current zoning standards, shall be considered as follows:
1. Legal Nonconforming. Those uses, structures or lots, which in whole or part are
not in conformance with current zoning standards but were legally established at
a prior date at which time they were in conformance with applicable standards.
Such uses, structures or lots may be maintained or potentially altered subject to
the provisions of this Section.
2. Illegal Status. Those uses, structures or lots which in whole or part are not in
conformance with current zoning standards and were not in conformance with
applicable standards at the time of their inception shall not be considered
nonconforming, but shall be considered illegal uses, structures, or lots and shall
not be approved for any alteration or expansion and shall undertake necessary
remedial measures to reach conformance with current standards or be
discontinued.
Ordinance No. 18-62, Page 2
7.3 Time of Adoption
A. Any use, platted lot, and/or structure that is a lawful use at the time of the adoption of
any amendment to the Zoning Ordinance but by such amendment is placed in a district
wherein such use, platted lot, and/or structure is not otherwise permitted shall be
deemed legal nonconforming.
B. Annexation
If a use, platted lot and/or structure was in existence at the time of annexation to the
Town and has since been in regular and continuous use, it shall be deemed legal
nonconforming.
7.4 Burden of Demonstration
The burden of establishing that any nonconformity is a legal nonconformity as defined in
this subsection shall be borne by the owner or proponent of such nonconformity.
7.5 Continuing Lawful Use of Property
A. Abandonment of Nonconforming Use
If a nonconforming use on a particular parcel of land ceases operations for a
continuous period of more than six (6) months, then such nonconforming use shall be
deemed to be permanently abandoned. Any nonconforming use which does not
involve a permanent type of structure or operation and which is moved from the
premises shall be considered to have been abandoned.
B. Reinstatement of Nonconforming Use Rights
An owner and/or operator of a nonconforming use that has been deemed permanently
abandoned pursuant to Section 7.5 (A), above, may request that the nonconforming
rights to the use be reinstated pursuant to Section 7.10.
C. Prohibited Expansion or Reoccupation
A nonconforming use shall not be expanded, reoccupied with another nonconforming
use, or increased as of the effective date of the Zoning Ordinance, except as provided
in Section 7.7.
7.6 Changing Uses and Nonconforming Right
A. Nonconforming Use to Conforming Use
Any nonconforming use may be changed to a conforming use, and once such change
is made, the use shall not be changed back to a nonconforming use.
Ordinance No. 16-62, Page 3
B. Nonconforming Use to Another Nonconforming Use
A nonconforming use may not be changed to another nonconforming use, when the
new nonconforming use is a more intense land use in terms of generating additional
traffic, parking, noise, light, or providing additional outdoor uses in comparison to the
current nonconforming use.
C. Conforming Use in a Nonconforming Structure
Where a conforming use is located in a nonconforming structure, the use may be
changed to another conforming use as outlined in Section 7.7, below.
7.7 Nonconforming Uses
A. Registration of Nonconforming Uses
The operator, owner, or occupant of any nonconforming uses of land or buildings shall,
within 12 months after the date on which the same became nonconforming, register
such nonconforming use by obtaining a certificate of occupancy from the Building
Official. The certificate of occupancy (nonconforming) shall be considered as
evidence of the legal existence of a nonconforming use, as contrasted to an illegal use
or violation of this Code. The Building Official shall maintain a register of all certificates
of occupancy issued for nonconforming uses.
B. An expansion of a nonconforming use is allowed in accordance with the following:
1. Nonconforming Use Expansion in Existing Building. A nonconforming use located
within a building may be extended throughout the existing building, provided:
a. No structural alteration, except as provided in Section 7.8, may be made on or
in the building except those required by law to preserve such building in a
structurally sound condition.
b. The number of dwelling units or rooms in a nonconforming residential use shall
not be increased so as to exceed the number of dwelling units or rooms existing
at the time said use became a nonconforming use.
C. Nonconforming Use Prohibited from Expansion beyond Existing Building. A
nonconforming use within a building shall not be extended to occupy any land outside
the building except where the rights are fully or partially re -instated by the Board of
Adjustment pursuant to Section 7.10.
D. Off -Street Loading and Parking
A nonconforming use of land or building shall not be enlarged, increased, or extended
to occupy a greater area of land than was occupied at the time the land became a
nonconforming use, except to provide off-street loading or off-street parking space
when the additional parking complies with Chapter 4 of the Zoning Ordinance.
Ordinance No. 18-62, Page 4
7.8 Nonconforming Structures
A. Enlargement
A nonconforming structure used for a conforming use may be enlarged by a maximum
of 10% of the total floor area or 1,000 square feet, whichever is less. The enlargement
of the floor area is only permitted one time.
B. Reuse of Abandoned or Vacant Buildings by Conforming Uses Allowed
Buildings or structures which have been vacant or abandoned for more than six (6)
months and do not meet the current area regulations or development standards shall
be allowed to be re -occupied by a conforming use.
C. Restoration of Nonconforming Structures
1. Total Destruction
If a nonconforming structure is destroyed by fire, the elements, or other cause, it
may not be rebuilt except to conform to the provisions of the Zoning Ordinance
unless the rights are fully or partially re -instated by the Board of Adjustment
pursuant to Section 7.10.
2. Partial Destruction
In the event that a nonconforming structure that is devoted in whole or in part to a
conforming use is damaged or destroyed, by any means other than voluntary
demolition, to the extent of 50% or less the replacement cost of the structure
immediately prior to such damage, such structure may be repaired and
reconstructed and used for the same purposes and degree as it was before the
damage or destruction, provided that such repair or reconstruction is commenced
with a valid building permit within six (6) months of the date of such damage or
destruction unless the rights are fully or partially re -instated by the Board of
Adjustment pursuant to Section 7.10.
D. Relocation
No nonconforming structure shall be relocated in whole or in part to any other location
on the same or any other lot unless the entire structure conforms to the regulations of
the district to which such structure is relocated.
7.9 Completion of Structures
A. Nothing herein contained shall require any change in the plans, construction, or
designated use of the following:
1. Building in the Approval Process
A building or structure for which a complete application for a building permit was
accepted by the Chief Building Official on or before the effective date of this Zoning
Ordinance No. 16-62, Page 5
Ordinance or applicable amendments thereto; provided however, that such
building permit shall comply with all applicable ordinances in effect on the date
such application was filed.
7.10 Reinstatement of Nonconforming Rights
A. Applicability
A property owner may apply to the Board of Adjustment for a change in the status of
a nonconforming use or nonconforming structure for the following matters:
1. Resumption of a nonconforming use previously abandoned;
2. Expansion of the land area of a nonconforming use;
3. Expansion of the gross floor area of a nonconforming structure beyond 25%; or
4. Reconstruction of a nonconforming structure that has been destroyed.
B. Effect
If the Board of Adjustment grants the application for a change in nonconforming status,
modifications made in the nonconforming use, structure or lot that are consistent with
the approved application shall enjoy the same status and shall be subject to the same
limitations as the original nonconformity under this Zoning Ordinance.
C. Application Requirements
1. An application for a change in nonconforming status may be filed by the property
owner on forms provided by the Department of Development Services.
2. An application for a change in nonconforming status shall contain a detailed written
statement of the reasons why the nonconforming rights should be reinstated.
D. Review and Determination Process
1. Upon receipt of an application for a change in nonconforming status, the Director
of Development Services or his or her representative shall transmit the application
to the Board of Adjustment for processing and determination in accordance with
this Section.
2. The Board of Adjustment shall hold a public hearing with notification of the hearing
provided as follows:
a. written notice being mailed to each property owner, as indicated by the most
recently approved tax roll, within 200 feet of the subject property, prior to the
tenth (10th) day before the hearing, and
b. publication in the official newspaper of the Town prior to the fifteenth (15'h) day
before the hearing.
Ordinance No. 18-62, Page 6
E. Burden of Proof
The applicant bears the burden of proof to demonstrate that an application for a
change in nonconforming status should be granted.
F. Criteria for Considering Application
The Board of Adjustment shall consider the following criteria:
1. The proposed change in nonconforming status results in greater conformance with
the Comprehensive Plan;
2. The proposed change in nonconforming status results in greater conformance with
this Zoning Ordinance such that the nonconforming use or structure can eventually
come into full compliance with this Zoning Ordinance;
3. The degree of the proposed request is the minimum amount necessary; and
4. Granting the application shall not result in greater harm to adjacent and
neighboring land uses than the original nonconformity.
G. The Board of Adjustment shall approve, approve subject to conditions, or deny the
request for a change in nonconforming status.
7.11 Amortization of Nonconforming Uses or Structures
A. First Public Hearing
Upon direction by the Town Council, the Board of Adjustment shall hold a public
hearing to determine whether the continued operation of the nonconforming use will
have an adverse effect on nearby properties or the community welfare. Notice of the
public hearing shall be in the manner established in Section 7.10(D)(2).
B. In determining whether the continued operation will have an adverse effect on nearby
properties or the community welfare, the Board of Adjustment shall consider the
following factors:
1. The Comprehensive Plan;
2. The character of the surrounding neighborhood;
3. The degree of incompatibility of the use with the zoning district, in which it is
located;
4. The manner in which the use is being conducted;
5. The hours of operation of the use;
6. The extent to which continued operation of the use may threaten public health or
safety;
Ordinance No. 18-62, Page 7
7. The environmental impacts of the use's operation, including but not limited to the
impacts of noise, glare, dust, and odor;
8. The extent to which public disturbances and nuisances may be created or
perpetuated by continued operation of the use;
9. The extent to which traffic or parking problems may be created or perpetuated by
continued operation of the use; and
10. Any other factors relevant to the issue of whether continued operation of the use
will adversely affect nearby properties.
C. If the Board of Adjustment determines that the nonconforming use has an adverse
effect on nearby properties or the community welfare, it shall hold a second public
hearing to set a date for compliance. The Board of Adjustment shall have the authority
to request the owner to produce financial documentation and/or records to the factors
listed in Section 7.11(E), below. 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 said documentation, the Board of Adjustment is authorized to make its
determination of a compliance date based upon any reasonably available public
records as well as public or expert testimony at the hearing. Failure by owner to
provide the requested financial documents and records shall not prevent the Board of
Adjustment from setting a compliance date.
D. Second Public Hearing
Notice of the public hearing shall be in the manner established in Section 7.10(D)(2)
E. The Board of Adjustment shall, in accordance with the law, provide a 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 within a
definite time period. The following factors shall be considered by the Board of
Adjustment in determining a reasonable amortization period:
1. 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) on the property before the time the use became nonconforming;
2. 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;
3. Any return on investment since inception of the use, including net income and
depreciation;
4. The anticipated annual recovery of investment, including net income and
depreciation; and/or
5. A reasonable wind-up period for the nonconforming use.
Ordinance No. 18-62, Page 8
F. Ceasing Operations
If the Board of Adjustment establishes a compliance date for a nonconforming use,
the use must cease operations on that date, and it may not operate thereafter unless
it becomes a conforming use.
G. Decisions that Cannot be Immediately Appealed
A decision by the Board of Adjustment that the continued operation of a nonconforming
use will have an adverse effect on neighboring property or the community welfare and
the Board of Adjustment's decision to schedule a second public hearing to establish a
compliance date are not final decisions and cannot be immediately appealed.
H. Decision to Deny a Request to Establish a Compliance Date
A decision by the Board of Adjustment 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 Local Government Code.
Decision Setting a Compliance Date
A decision by the Board of Adjustment setting a compliance date is final unless
appealed to state court within ten (10) calendar days in accordance with Chapter 211
of the Local Government Code.
J. Nothing in this section shall prohibit the Town and the property owner(s) of such
nonconforming use from mutually agreeing upon a compliance date and memorialize
such agreement in writing, to be approved by the Town Council and said property
owner(s) and filed in the real property records of the county in which the property is
located."
SECTION 3
Should any section, subsection, sentence, clause or phrase of this Ordinance be declared
unconstitutional or invalid by a court of competent jurisdiction, it is expressly provided that any
and all remaining portions of this Ordinance shall remain in full force and effect. The Town hereby
declares that it would have passed this Ordinance, and each section, subsection, clause or phrase
thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses
and phrases be declared unconstitutional or invalid.
SECTION 4
All provisions of any ordinance in conflict with this Ordinance are hereby repealed to the
extent they are in conflict, and any remaining portions of said ordinances shall remain in full force
and effect.
Ordinance No. 18-62, Page 9
SECTION 5
Any person, firm or corporation violating any of the provisions or terms of this Ordinance
shall be deemed guilty of a misdemeanor and, upon conviction, shall be punished by fine not to
exceed the sum of two thousand dollars ($2,000.00) for each offense.
�9 xis-iriT►k
This Ordinance shall become effective from and after its adoption and publication as
required by law; however, the provisions of this Ordinance shall not be applicable to any
residential development or tract of land for which one or more final plats has been approved by
the Town as of the effective date of this Ordinance.
DULY PAS 1,1 ROVED, AND ADOPTED BY THE TOWN COUNCIL OF THE
TOWN OF PR[ T l�,�,3N THIS 14t'' DAY OF AUGUST, 2018.
�o J .°.°....O i
° °dw°
Ray Omit , Mayor
APPROVED AS TO FORM AND LEGALITY:
Terrence S. Welch, Town Attorney
Ordinance No. 18-62, Page 10