(a) Compliance regulations for nonconforming uses. It is the declared purpose of this subsection that nonconforming uses be eliminated and be required to comply with the regulations of the Dallas Development Code, having due regard for the property rights of the persons affected, the public welfare, and the character of the surrounding area.
(1) Compliance requirement for nonconforming uses.
(A) Request to establish compliance requirement. The city council may request that the board of adjustment consider imposing a compliance requirement for a nonconforming use. A request under this subsection must include estimates of the amounts determined in Section 51A-4.704
(a)(1)(D)(i)(aa)-(bb). Upon receiving such a request, the city's chief financial officer must determine if there are sufficient funds available in the nonconforming use fund established under this subsection to cover potential costs that may be incurred by the city if the board imposes a compliance requirement. If sufficient funds are not available, the application shall be deemed incomplete for lack of funding. If the chief financial officer determines that sufficient funds are available, the board 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 board determines that continued operation of the use will have an adverse effect on nearby properties, it shall proceed to impose a compliance requirement for the nonconforming use; otherwise, it shall not.
(B) Factors to be considered. The board shall consider the following factors when determining whether continued operation of the nonconforming use will have an adverse effect on nearby properties:
(i) The character of the surrounding neighborhood.
(ii) The degree of incompatibility of the use with the zoning district in which it is located.
(iii) The manner in which the use is being conducted.
(iv) The hours of operation of the use.
(v) The extent to which continued operation of the use may threaten public health or safety.
(vi) The environmental impacts of the use’s operation, including but not limited to the impacts of noise, glare, dust, and odor.
(vii) The extent to which public disturbances may be created or perpetuated by continued operation of the use.
(viii) The extent to which traffic or parking problems may be created or perpetuated by continued operation of the use.
(ix) Any other factors relevant to the issue of whether continued operation of the use will adversely affect nearby properties.
(C) Finality of decision. A decision by the board to grant a request to impose a compliance requirement is not a final decision and cannot be immediately appealed. A decision by the board to deny a request to impose a compliance requirement is final unless appealed to state court within 10 days in accordance with Chapter 211 of the Local Government Code.
(D) Determination of remedies.
(i) If the board determines that continued operation of the nonconforming use will have an adverse effect on nearby properties, the director shall, in accordance with the law, determine:
(aa) the costs incurred by the owner or lessee of the property that are directly attributable to ceasing the nonconforming use of the property, including expenses related to demolition, relocation, termination of a lease, or discharge of a mortgage; and
(bb) an amount equal to the greater of, as determined by the director, the diminution in the market value of the property, computed by subtracting the current market value of the property after the imposition of the requirement to stop the nonconforming use of the property from:
(11) the market value of the property on the day before the date notice was given under Section 51A-4.701(a)(1.1); or
(22) the market value of the property on the day before a request to impose a compliance date is accepted under this section.
(ii) The property owner or lessee may choose to:
(aa) receive a payment from the city for the amount calculated in Romanette (i); or
(bb) continue operating the nonconforming use until the owner or lessee recovers the amount calculated in Romanette (i) through the owner’s or lessee’s continued business activities according to generally accepted accounting principles.
(iii) For purposes of this subparagraph, MARKET VALUE means the price the sale of the property would bring in an arms-length transaction when offered for sale by one who wishes, but is not obliged, to sell and when bought by one who is under no necessity of buying it.
(E) Notice of board action. Not later than the 10th day after the board imposes a requirement to stop operating a nonconforming use, the director shall give written notice to each owner or lessee of the property, as indicated by the most recently approved municipal tax roll, who is required to stop a nonconforming use of the property of the requirement and of the remedies to which an owner or lessee of the property is entitled under Subparagraph (D).
(F) Notice of choice of remedy. An owner or lessee of property who receives a notice to stop operating a nonconforming use under Subparagraph (E) shall, not later than the 30th day after the date the director gives the notice, respond in writing to the director indicating the remedy chosen under Subparagraph (D) by the owner or lessee of the property. If there is a conflict in the choice of remedy by the owner and a lessee of the property, the owner’s choice of remedy controls. If there is a conflict in the choice of remedy by the owners of a property that has more than one owner, the choice of remedy made by the owner or owners holding the greater ownership interest in the property controls. The director may choose the remedy if the owner or lessee does not provide notice of its choice of remedy by the 30-day deadline.
(G) Compliance date.
(i) A property owner or lessee receiving a payment in accordance with Section 51A-4.704(a)(1)(D)(ii)(aa) must stop operating the nonconforming use no later than the 10th day after the date of the payment. If more than one person seeks a payment from the city under this section, the director shall apportion the payment between each person based on the market value of the person's interest in the property. The apportionment determination may be appealed to the board in accordance with Subparagraph (H).
(ii) A property owner or lessee who continues operating the nonconforming use in accordance with Section 51A-4.704(a)(1)(D)(ii)(bb) must stop operating the nonconforming use immediately upon the recovery of the amount determined under Subparagraph (D).
(H) Appeal of remedy.
(i) A person entitled to a remedy under this section may appeal the director’s determination under Subparagraph (D) to the board of adjustment not later than the 20th day after the determination is made. The director has the burden of proof to establish the correctness of the director’s determination.
(ii) A person seeking to continue operation of a nonconforming use under Subparagraph (D) who appeals the decision of the director under Subparagraph (D) may continue to operate the property in the same manner pending the appeal unless the building official shows cause to stay the nonconforming use by certifying in writing to the board facts supporting the building official’s opinion that continued operation of the nonconforming use would cause imminent peril to life or property. Upon a showing of cause the board may, after notice to the building official, grant a restraining order to stay continued operation of the nonconforming use.
(iii) If the board of adjustment determines that an owner or lessee is entitled to:
(aa) a payment under this section in an amount different than the amount determined by the director under Subparagraph (D), the board shall order, as applicable:
(11) additional payment to the owner or lessee; or
(22) the owner or lessee to reimburse the city; or
(bb) an amount of time to operate the nonconforming use that is different than the amount of time initially received under Subparagraph (D), the board shall order the director to allow the owner or lessee to operate the nonconforming use for additional or less time.
(iv) The board’s decision is final unless appealed to the district court within 20 days in accordance with Section 211.019 of the Texas Local Government Code.
(2) The right to operate a nonconforming use ceases if the nonconforming use is discontinued for six months or more. The board may grant a special exception to this provision only if the owner can show that there was a clear intent not to abandon the use even though the use was discontinued for six months or more.
(3) Nonconforming use fund.
(A) In general.
(i) There is hereby established a special fund for property owners and lessees who have chosen to receive a payment from the city under Section 51A-4.704(a)(1)(D)(ii).
(ii) With the approval and adoption of the city’s budget, city council may allocate funds to the nonconforming use fund for the payment of property owners and lessees of nonconforming uses for which the board has established a compliance requirement during the current fiscal year.
(B) Expenditures. The nonconforming use fund may only be used for making a payment to a property owner or lessee calculated in accordance with Section 51A-4.704
(a)(1)(D)(i)
(4) The right to operate a nonconforming use ceases when the use becomes a conforming use. The issuance of an SUP does not confer any nonconforming rights. No use authorized by the issuance of an SUP may operate after the SUP expires.
(5) The right to operate a nonconforming use ceases when the structure housing the use is destroyed by the intentional act of the owner or his agent. If a structure housing a nonconforming use is damaged or destroyed other than by the intentional act of the owner or his agent, a person may restore or reconstruct the structure without board approval. The structure must be restored or reconstructed so as to have the same approximate height, floor area, and location that it had immediately prior to the damage or destruction. A restoration or reconstruction in violation of this paragraph immediately terminates the right to operate the nonconforming use.
(6) The nonconformity of a use as to parking, loading, or an “additional provision” (except for a requirement that a use be located a minimum distance from a structure, use, or zoning district) in Division 51A-4.200 does not render that use subject to the regulations in this subsection.
(b) Changes to nonconforming uses.
(1) Changing from one nonconforming use to another. The board may allow a change from one nonconforming use to another nonconforming use when, in the opinion of the board, the change is to a new use that:
(A) does not prolong the life of the nonconforming use;
(B) would have been permitted under the zoning regulations that existed when the current use was originally established by right;
(C) is similar in nature to the current use; and
(D) will not have an adverse effect on the surrounding area.
(2) Remodeling a structure housing a nonconforming use. A person may renovate, remodel, or repair a structure housing a nonconforming use if the work does not enlarge the nonconforming use. A person may renovate, remodel, or repair a structure housing a nonconforming tower/antenna for cellular communication use if the modification does not substantially change the physical dimensions of the structure housing the nonconforming tower/antenna for cellular communication use. A modification substantially changes the physical dimensions if it meets the criteria listed in 47 C.F.R. §1.40001(b)(7), as amended.
(4) Nonconformity as to parking or loading.
(A) Increased requirements. A person shall not change a use that is nonconforming as to parking or loading to another use requiring more off-street parking or loading unless the additional required off-street parking and loading spaces are provided.
(B) Delta theory. In calculating required off-street parking or loading, the number of nonconforming parking or loading spaces for a use may be carried forward when the use is converted or expanded. Nonconforming rights as to parking or loading are defined in the following manner:
Required parking or loading for existing use
- Number of existing parking or loading spaces for existing use
Nonconforming rights as to parking or loading.
(C) Decreased requirements. When a use is converted to a new use having a lesser parking or loading requirement, the rights to any portion of the nonconforming parking or loading that are not needed to meet the new requirements are lost.
(5) Enlargement of a nonconforming use.
(A) In this subsection, enlargement of a nonconforming use means any enlargement of the physical aspects of a nonconforming use, including any increase in height, floor area, number of dwelling units, or the area in which the nonconforming use operates.
(B) The board may allow the enlargement of a nonconforming use when, in the opinion of the board, the enlargement:
(i) does not prolong the life of the nonconforming use;
(ii) would have been permitted under the zoning regulations that existed when the nonconforming use was originally established by right; and
(iii) will not have an adverse effect on the surrounding area.
(C) Structures housing a nonconforming single family or duplex use may be enlarged without board approval.
(D) A nonconforming tower/antenna for cellular communication use may be enlarged without board approval if the modification enlarging the nonconforming tower/antenna for cellular communication does not substantially change the physical dimensions of the nonconforming tower/ antenna for cellular communication use. A modification substantially changes the physical dimensions if it meets the criteria listed in 47 C.F.R. §1.40001(b)(7), as amended.
(c) Nonconforming structures.
(1) Except as provided in Subsection (c)(2), a person may renovate, remodel, repair, rebuild, or enlarge a nonconforming structure if the work does not cause the structure to become more nonconforming as to the yard, lot, and space regulations.
(2) The right to rebuild a nonconforming structure ceases if the structure is destroyed by the intentional act of the owner or the owner’s agent.
(3) A person may, without board approval, cause a structure to become nonconforming as to the yard, lot, and space regulations by converting the use of the structure, except that no person may convert its use to a residential use or to one of the nonresidential uses listed below:
-- Airport or landing field.
-- Animal production.
-- Commercial amusement (inside).
-- Commercial amusement (outside).
-- Country club with private membership.
-- Crop production.
-- Drive-in theater.
-- Dry cleaning or laundry store.
-- General merchandise or food store 3,500 square feet or less.
-- General merchandise or food store greater than 3,500 square feet.
-- Helicopter base.
-- Heliport.
-- Helistop.
-- Nursery, garden shop, or plant sales.
-- Personal service use.
-- Private recreation center, club, or area.
-- Public park, playground, or golf course.
-- Restaurant without drive-in or drive-through service.
-- Restaurant with drive-in or drive-through service.
-- Sand, gravel, or earth sales and storage.
-- Sanitary landfill.
-- STOL (short takeoff or landing) port.
-- Stone, sand, or gravel mining.
-- Temporary construction or sales office.
-- Theater.
-- Transit passenger shelter.
The board may grant a special exception to this provision if the board finds that the conversion would not adversely affect the surrounding properties.
(4) A person may renovate, remodel, repair, rebuild, or enlarge that portion of a nonconforming structure supporting a tower/antenna for cellular communication without board approval if the modification does not substantially change the physical dimensions of the tower or base station. A modification substantially changes the physical dimensions if it meets the criteria listed in 47 C.F.R. §1.40001(b)(7), as amended. (Ord. Nos. 19455; 19786; 20307; 20412; 21553; 22412; 25092; 26511; 29984; 33012)