09-048 - O TOWN OF PROSPER, TEXAS ORDINANCE NO. 09-048
AN ORDINANCE OF THE TOWN OF PROSPER, TEXAS, AMENDING
CHAPTER 1 (GENERAL PROVISIONS, ADMINISTRATION, AND
PROCEDURES), SECTION 7 (NONCONFORMING USES AND
STRUCTURES) OF PROSPER'S ZONING ORDINANCE NUMBER 05-20;
PROVIDING FOR A PENALTY FOR THE VIOLATION OF THIS
ORDINANCE; PROVIDING FOR REPEALING, SAVINGS AND
SEVERABILITY CLAUSES; PROVIDING FOR AN EFFECTIVE DATE
OF THIS ORDINANCE; AND PROVIDING FOR THE PUBLICATION OF
THE CAPTION HEREOF.
WHEREAS, the Town Council of the Town of Prosper, Texas, (the"Town Council") has
investigated and determined that it would be in the best interest of the Town of Prosper, Texas
(the "Town") and its inhabitants to amend Chapter 1 (General Provisions, Administration, and
Structures), Section 7 (Nonconforming Uses and Structures) of Prosper's Zoning Ordinance No.
05-20 as provided herein.
NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE
TOWN OF PROSPER, TEXAS:
SECTION 1: Findings Incorporated. The findings set forth above are incorporated into
the body of this Ordinance as if fully set forth herein.
SECTION 2: Amendment to Chapter 1 (General Provisions, Administration, and
Structures), Section 7 (Nonconforming Uses and Structures) of Prosper's Zoning Ordinance No.
05-20. Amendment to Chapter 1 (General Provisions, Administration, and Structures), Section 7
(Nonconforming Uses and Structures), of Prosper's Zoning Ordinance No. 05-20 is hereby
amended to read as follows:
SECTION 7
NONCONFORMING USES AND STRUCTURES
7.1 Definitions and Applicability
A. NONCONFORMING STRUCTURE means a structure which does
not conform to the regulations (other than the use regulations) of this
Ordinance, but which was lawfully constructed under the regulations in
force at the time of construction.
B. 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.
C. If(1) a use is established or a structure is constructed outside the Town's
limits in accordance with the regulations of another governmental entity,
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(2) the property on which that use or structure is located is then annexed
into the Town limits, and (3) the use or structure does not conform to the
Town's regulations, such use or structure shall be considered
nonconforming.
D. If a nonconforming use occupies a nonconforming structure, the more
restrictive of the nonconforming use regulations and nonconforming
structure regulations shall apply. This means that even if a nonconforming
structure can be expanded under Chapter 1, Section 7.2(B) of this
Ordinance, if the expansion would also expand the nonconforming use,
such expansion shall be prohibited under Chapter 1, Section 7.3(A) of this
Ordinance.
E. An awning and/or canopy is not deemed an expansion of a nonconforming
use or structure if it is attached to the exterior wall of a nonconforming
structure or a structure housing a nonconforming use, and the awning
and/or canopy functions only as an architectural feature.
7.2 Nonconforming Structures
A. Except as provided in Chapter 1, Section 7.2(B) below, no person may
enlarge, extend, repair, alter, or remodel a nonconforming structure if the
enlargement, repair, alteration, or remodel will cause the structure to
become more nonconforming as to the regulations (other than the use
regulations) of this Ordinance.
B. The following are permitted even if they cause the structure to become
more nonconforming:
1. Providing additional off-street loading or off-street parking spaces
in relation to a nonconforming structure upon approval of a site
plan by the Planning and Zoning Commission pursuant to Chapter
4, Section 1 of this Ordinance; or
2. Altering the exterior facade of the structure upon approval of a
facade plan by the Director of Development Services or his/her
designee (the "Director"). The Director shall approve the facade
plan if the proposed alterations to the exterior facade meet all
requirements of this Ordinance. Otherwise, he/she shall deny the
alteration of the exterior facade. If denied, the applicant may
appeal the decision to the Planning & Zoning Commission and
Town Council using the appeal procedure in Chapter 4, Section 1
of this Ordinance; or
3. Increasing the floor area by a maximum of ten percent (10%) or
1,000 square feet, whichever is less, upon approval of a site plan
by the Planning & Zoning Commission per Chapter 4, Section 1 of
Ordinance Amending Chapter 1,Section 7(Nonconforming Uses and Structures) Page 2
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this Ordinance. A person may increase the floor area of a
nonconforming structure pursuant to this subsection only once.
Any of the enlargements, repairs, alterations, or remodels described in Chapter 1,
Section 7.2(B)(1)-(3) above shall comply with this Ordinance, as amended.
C. If a nonconforming structure is destroyed by fire, the elements, the
intentional acts of the owner, or any other cause, such structure shall not
be rebuilt unless it conform to all provisions of this Ordinance, as
amended. In the case of partial destruction of a nonconforming structure
not exceeding sixty percent (60%) of its reasonable value, reconstruction
will be permitted, but the size of the nonconforming structure cannot be
expanded unless otherwise allowed under Chapter 1, Section7.2(B) of this
Ordinance.
D. If 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.
7.3 Nonconforming Uses
A. A nonconforming use shall not be expanded or increased in any manner.
Except as otherwise provided in Chapter 1, Section 7.1(E), an expansion
of a nonconforming use includes, but is not limited to (1) providing
additional off-street loading or off-street parking for the nonconforming
use; and (2) constructing a patio cover, porch, and/or canopy to be used in
connection with the nonconforming use.
B. The right to operate a nonconforming use ceases if:
1. the nonconforming use is discontinued for six months or more and
the Town Council does not allow the continued operation pursuant
to Chapter 1, Section 7.3(E)below; or
2. there is a violation of any of the provisions of this Ordinance or a
violation of any ordinance of the Town; or
3. the nonconforming use is changed to a conforming use by rezoning
so as to achieve compliance with the provisions of a new or
different zoning district; or
4. the nonconforming use is changed to a conforming use; or
5. the right to maintain or operate a nonconforming use is terminated
by the Town Council in accordance with Chapter 1, Section 7.3(F)
and(G) of this Ordinance; or
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6. the operator, owner, or occupant fails to obtain a Certificate of
Occupancy in compliance with the terms of Chapter 1, Section
7.3(E) of this Ordinance; or
7. the structure occupied by the nonconforming use is destroyed by
fire, the elements, the intentional acts of the owner, or any other
cause. In the case of partial destruction of a nonconforming
structure not exceeding sixty percent(60%) of its reasonable value,
reconstruction will be permitted, but the size or function of the
nonconforming use shall not be expanded unless otherwise allowed
in Chapter 1, Section7.3(B) of this Ordinance.
C. The issuance of a specific use permit does not confer any nonconforming
rights. No use authorized by the issuance of a specific use permit may
operate after the specific use permit expires or is terminated.
D. The operator, owner or occupant of any nonconforming use shall, within
twelve (12) months after the use became nonconforming, register such
nonconforming use by obtaining from the Building Official a Certificate
of Occupancy (nonconforming). A Certificate of Occupancy
(nonconforming) is required to maintain a nonconforming use status.
Failure to timely obtain a Certificate of Occupancy shall terminate the
nonconforming use which shall then be subject to and shall comply with
all ordinances of the Town.
E. If an owner and/or operator loses nonconforming rights pursuant to
Section 7.3(B)(1) of this Ordinance, the owner and/or operator of the
nonconforming use may request that the Town Council reestablish their
nonconforming rights. To do so, the owner and/or operator must file a
written request within ten days after receiving written notice from the
Town that their use no longer has nonconforming rights. Upon receiving
the request, the Building Official shall place the request on the agenda for
the next available Town Council meeting. The Town Council may only
reestablish the owner's rights to operate a nonconforming use if the owner
and/or operator can show there was a clear intent not to abandon the use
even though the use was discontinued for six months or more.
F. Amortization of Nonconforming Uses.
1. Determination of Need for Expedited Compliance. Any person,
who resides or owns real property in the Town, may request that
the Town Council establish a compliance date for a nonconforming
use. Upon receiving such a request, the Town Council shall
determine whether there is a public necessity for expedited
compliance with the zoning regulations. The following factors
must be considered by the Town Council in determining the public
necessity for expedited compliance:
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a. The character of the surrounding neighborhood.
b. The degree of incompatibility of the use to the zoning
district in which it is located.
c. The effect of the nonconforming use on the surrounding
area and the effect of its cessation on that area.
d. The manner in which the use is being conducted.
e. The hours of operation of the use.
f. The extent to which continued operation of the use may
threaten public health or safety.
g. The environmental impacts of the use's operation, including
but not limited to the impacts of noise, glare, dust, and
odor.
h. The extent to which public disturbances may be created or
perpetuated by continued operation of the use.
i. The extent to which traffic or parking problems may be
created or perpetuated by continued operation of the use.
j. Any other factors relevant to the issue of whether continued
operation of the use will adversely affect nearby properties.
2. If the Town Council finds there is not a public necessity for
expedited compliance with the zoning regulations, the Town
Council shall request that the Planning & Zoning Commission
initiate a public hearing in accordance with this Ordinance to
determine the proper zoning of the property on which the use is
located.
G. Determination of Amortization Period.
1. If the Town finds that there is a public necessity for expedited
compliance with the zoning regulations, the Town Council 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 structure(s), fixed equipment and other assets
(excluding inventory and other assets that may be feasibly
transferred to another site) on the property before the time that the
use became nonconforming can be amortized within a definite time
period.
2. The following factors must be considered by the Town Council in
determining a reasonable amortization period:
a. 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 and/or structure
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became nonconforming.
b. Any costs that are directly attributable to the owner and the
establishment of compliance date, including demolition
expenses, relocation expenses, termination of leases, and
discharge of mortgages.
c. Any return on capital investment since inception of the use
and/or use of the structure, including net income and
depreciation.
d. The anticipated actual recovery of capital investment,
including net income and depreciation.
3. If the owner did not have an investment in the use before it became
a nonconforming use, the owner is not entitled to an amortization
to recover any of the costs set forth in Chapter 1, Section 7.3(G)(1)
above. The Town Council, it its sole discretion, however, may give
the owner a reasonable time to wind-down its operation.
4. For purposes of setting a compliance date, the term "owner" shall
mean the owner of the nonconforming use at the time of Town
Council determination of a compliance date
H. Compliance Requirement. If the Town Council establishes a compliance
date for a nonconforming use and/or structure, the use must cease
operations on or before that date, and it may not operate and/or be
occupied and/or used thereafter unless it becomes a conforming use.
SECTION 3: Penalty Provision. Any person, firm, entity or corporation who violates
any provision of this Ordinance, as it exists or may be amended, shall be deemed guilty of a
misdemeanor, and upon conviction therefore, shall be fined in a sum not exceeding Two
Thousand Dollars ($2,000.00). Each continuing day's violation shall constitute a separate
offense. The penal provisions imposed under this Ordinance shall not preclude Prosper from
filing suit to enjoin the violation. Prosper retains all legal rights and remedies available to it
pursuant to local, state, and federal law.
SECTION 4: Savings/Repealing Clause. All provisions of any ordinance in conflict with
this Ordinance are hereby repealed to the extent they are in conflict; but such repeal shall not
abate any pending prosecution for violation of the repealed ordinance, nor shall the repeal
prevent a prosecution from being commenced for any violation if occurring prior to the repeal of
the ordinance. Any remaining portions of said ordinances shall remain in full force and effect.
SECTION 5: Severability. Should any section, subsection, clause or phrase of this
Ordinance be declared unconstitutional or invalid by any court of competent jurisdiction, it is
expressly provided that any and all remaining portions of this Ordinance shall remain in full for
force and effect. Prosper hereby declares that it would have passed this Ordinance, and each
section, subsection, clauses and phrases be declared unconstitutional or invalid.
SECTION 6: Effective Date. This Ordinance shall be effective immediately upon its
passage and publication as required by law.
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DULY PASSED AND APPROVED BY THE TOWN COUNCIL OF THE TOWN
OF PROSPER, TEXAS, on this 10th day of March, 2009.
arles Niswanger, May
ATTESTED AND CORRECTLY
RECO '-� D:
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tthew D. Denton, TRMC
Town Secretary
Date(s) of Publication O.3/l 11140 ;in the/ 41 126cf/ 2
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