Last month, we delved into the fundamentals of zoning as they relate to developers and builders. Now, let’s take a deeper dive into specialized zoning topics that merit closer examination.
What are legal nonconforming rights?
The legal concept is derived from Section 211.019 of the Texas Local Government Code which states that “[a] person using a property in a manner considered to be a nonconforming use as a result of the adoption of or change to a zoning regulation or boundary may continue to use the property in the same manner . . . .” Put simply by the Texas Supreme Court, “[it is] land use that is impermissible under current zoning restrictions but that is allowed because the use existed lawfully before the restrictions took effect.” Tellez v. City of Socorro, 226 S.W.3d 413, 414 (Tex. 2007).
Legal nonconforming rights may apply to land, to structures and to land use. For example, on a 50-foot by 50-foot square lot, a structure in a neighborhood retail zoning district sits five feet from the front boundary line of the property, fifteen feet from each side boundary line, and five feet from the back boundary line of the property. The structure is used as a dry cleaning store, but the city council recently approved zoning changes that restricts dry cleaning store use to commercial districts, and increases the required front yard setback to ten feet and the minimum lot width to sixty feet in neighborhood retail districts. The new zoning regulations make the use of the property, the structure’s placement on the lot, and the lot itself, legally nonconforming.
Protecting Your Legal Nonconforming Status
Legal nonconforming rights are governed by state law and city ordinances. Ultimately, it is imperative to review each city’s zoning ordinance regarding termination of legal nonconforming rights to determine how to fully protect your rights. Generally, legal nonconforming rights are terminated when a nonconformance is: (i) expanded or increased; (ii) reoccupied with another nonconforming use; (iii) abandoned (review city ordinance for specified time period – often six (6) months); or (iv) destroyed by fire, the elements, or other natural catastrophic event. See City of Grapevine, Texas, Code of Ordinances, Section 43. Some cities provide procedures for reinstating legal nonconforming uses. Therefore, always review your city’s regulations before assuming your rights have been lost.
Development Agreements and Planned Development Zoning
Cities are often willing to enter into development agreements with developers of large-scale projects, highly specialized or needed projects within a city. Development agreements may include cost sharing and reimbursement agreements with cities, as well as provide for particular zoning and development regulations for the project, known as planned development zoning. Planned development zoning is specialized zoning for certain projects or areas of land that due to their respective natures, cannot feasibly comply with existing zoning regulations. Planned development zoning can particularize any zoning element, including density, setbacks, accessory use and building requirements, maximum height, maximum and minimum lot and structure sizes, and more.
Specific Use Permits
Aside from planned development zoning, specific use (also referred to as conditional use and special use) permits are another zoning mechanism used by cities to encourage but heavily regulate certain uses within particular districts. For example, many Texas cities require a special use permit in order to sell alcohol in certain commercial zoning districts, even though such use customarily fits squarely within commercial zoning district standards. On the other hand, cities may choose to allow industrial uses in a certain commercial districts with a specific use permit to encourage mixing of uses in appropriate areas and to meet specific city needs.
Importantly, special use permits are often approved with conditions, the primary one being term lengths, which can be overly burdensome. Additionally, conditions can range from site plan approval to building material approval. These conditions are significant factors to consider before expending capital investment in projects.
Variances
Variances are another specialized zoning tool. Variances are permission to deviate from certain elements of a zoning regulation due to undue hardship, on a more permanent basis compared to specific use permits, which expire after a defined length of time. For example, an applicant may request a variance to building setback lines as due to the shape and size of their lot, the lot becomes unbuildable. If approved, the variance attaches to the land and inures to the current owner as well as their heirs and assigns.
Variance requests are submitted to a city’s board of adjustment (the “Board”). In exercising its authority under subsection (a)(3) of Section 211.009 of the Tex. Loc. Gov’t Code, the Board may consider the following as grounds to determine whether compliance with the ordinance as applied to a structure that is the subject of the appeal would result in unnecessary hardship:
- The financial cost of compliance is greater than 50 percent of the appraised value of the structure as shown on the most recent appraisal roll certified to the assessor for the municipality under Section 26.01, Tax Code;
- Compliance would result in a loss to the lot on which the structure is located of at least 25 percent of the area on which development may physically occur;
- Compliance would result in the structure not being in compliance with a requirement of a municipal ordinance, building code, or other requirement;
- Compliance would result in the unreasonable encroachment on an adjacent property or easement; or
- The municipality considers the structure to be a nonconforming structure.”
§ 211.009.
Importantly, these are only factors the Board may consider, which is why representation before planning and zoning commissions and city councils is imperative.
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