Zoning laws regulate land use in communities through rules that govern how property can be developed and used. Zoning laws generally aim to establish orderly communities in which incompatible uses are separated into districts that are either exclusively residential, commercial or industrial. A Texas lawyer consultation would help a person understand the zoning ordinances in the locale in which they live.
On occasion, a “non-conforming use” happens when a use that was at one time allowed by the applicable zoning regulations becomes unacceptable under new ordinances. The authorities who enforce zoning ordinances may allow the non-conforming use to continue even though it is no longer permissible under new, changed ordinances.
Some of the kinds of changes in zoning ordinances that may lead to non-conforming uses are modification of land use designations, e.g., changes from multi-family residential to single-family residential, density restrictions or changed architectural standards.
“Grandfathering” is the term used for the situation in which the use of real property that was once allowed has become impermissible with a change in zoning ordinances. It is a protection offered to property owners who invested in their property in a way that complied with the ordinances that applied at one time but have since changed.
When Is a Non-Conforming Use Considered a Zoning Violation in Texas?
The government agency – usually a planning board or planning commission – that enforces zoning regulations in a Texas location may terminate a landowner’s right to continue a non-conforming use.
The circumstances under which this may happen are as follows:
- Abandonment: The landowner abandons the use. This requires an intent to end the activity that is non-conforming and then actually ending it for a specified period of time. Usually, the time period is from 6 months to 2 years, depending on the locale. If the activity is stopped only temporarily, it would not amount to abandonment.
- In Texas, it is important to keep in mind that the way in which abandonment is determined may be different from one locale to another. One common measure is a 6-month or longer period of non-use. In addition, much depends on exactly what the owner does with respect to a specific parcel of land. For example, if the owner continues to maintain a property or tries to sell it, this could lead authorities to find that there has not been an abandonment.
- On the other hand, an owner’s neglect of property and failure to maintain it, so it falls into disrepair, can be viewed as abandonment.
- Destruction: A certain percentage of the value of a structure in which the non-conforming use is conducted may be destroyed. The percentage that is likely to end a non-conforming use would be 50% or more. In this case, the owner would lose their right to rebuild in order to continue the non-conforming use.
- Voluntary Cessation: The owner of a property on which a non-conforming use is conducted may voluntarily stop the non-conforming use and move to a use that conforms with current zoning ordinances. If this happens, the owner loses the right to carry on the non-conforming use. It cannot be resumed. No other owner would be able to carry on the non-conforming use, as it would be lost for good.
- Amortization: Some locales have adopted the process known as “amortization.” In amortization, the authorities allow an owner to continue a non-conforming for a reasonable period, but then they must end it.
- The idea is that the owner is given a period of time to recover their investment in the property before they have to incur the cost of adapting the property to a new, acceptable use that conforms to current zoning ordinances.
What Are the Legal Consequences of a Non-Conforming Use in Texas?
A non-conforming use might be allowed by local zoning authorities or it might lead to local authorities charging the owner with a zoning violation. The local authority may impose a penalty for the violation, such as the following:
- Criminal Punishment: Criminal punishment could include the payment of fines or serving time in jail.
- Civil Penalties: The zoning authority might obtain an Injunction or other legal order that forbids continuance of the non-conforming use. An injunction or other order might even require the owner to remove a structure or part of a structure that is illegal.
- Consequences for Allowable Use: The zoning agency may deny permits to the owner, e.g. a building permit for alteration of an existing structure, even if the use is allowed by zoning ordinances.
- Value of Property: If an owner cannot honestly tell buyers that a property conforms to all applicable zoning laws, they may have to sell it for less than the value it would have if it conformed to all zoning ordinances. Or, they may not be able to sell it at all. A buyer is likely not to want to buy non-conforming property for which they would become responsible.
Does Texas Recognize Legal Non-Conforming Uses?
Some locales may allow non-conforming uses and may even allow the expansion of such a use. The expansion may involve physical alterations of a structure or its surroundings or increasing the intensity of the use. For example, buildings may be enlarged or the number of tenants housed in a multi-family residential structure may be increased. Other enhancement of the capacity of a property for a non-conforming use may be envisioned by the owner.
A property owner must seek approval from their local zoning authority before they undertake an expansion of their non-conforming use. Most localities have a process that requires submitting an application. Of course, the application must specify the changes that the owner proposes.
The zoning authorities in some locales may require a site plan and descriptions of the changes the owner proposes that are detailed. They may further require evidence that an expansion would not have a negative effect on neighboring properties or violate zoning intentions. There is likely to be a fee for submitting the application.
Property owners should be aware of the fact that there is a risk to applying for an expansion of a non-conforming use of their property. The application may adversely affect the non-conforming status of the property.
In some instances, if a proposed expansion exceeds certain limits established by local property zoning laws, zoning authorities may require the owner to bring the property into compliance with current zoning laws, thereby bringing the non-conforming use to an end.
For this reason, it is advisable to have the help of a Texas lawyer who understands local zoning regulations when attempting to expand a non-conforming use. A lawyer can ensure that the owner complies with all requirements and minimizes the risk of violating zoning ordinances by failing to understand how a violation could be triggered.
What Is a Zoning Variance in Texas?
A zoning variance is an exception that a local zoning authority grants to a property owner. It allows the owner to make a non-conforming use of their property without violating zoning ordinances.
Generally, zoning codes or ordinances regulate the size, location, type and use of structures within certain defined areas. An owner may request permission to vary the use they make of their property in some way. Usually, planning boards or zoning authorities review these requests on a case-by-case basis.
If the variance is approved, it does not represent a change to the zoning rules and regulations for all owners in a particular district. Rather, it represents the approval of only one exception to the applicable zoning laws. If an individual wants to apply for a variance, again, the guidance of a Texas lawyer could be quite helpful.
It is also important to keep in mind that a property owner in a gated community or homeowners association may have to contend with covenants that regulate the uses that can be made of property within the community.
Getting a zoning variance could involve the following:
- Applying for and obtaining permission from the local planning board,
- Holding a noticed public hearing,
- Appearing before the local planning board,
- Obtain the written permission of neighbors who would be affected.
In general, an applicant is required to show why they need to deviate from the zoning code and that it will not have a negative effect on the value of neighboring properties.
What Is Spot Zoning Under Texas Law?
Spot zoning occurs when an owner makes a use of a parcel of real property in a manner that is different from those made of surrounding properties in their zone. For example, a single-family residence may be allowed to conduct business-related activities in the home.
All other homes in the surrounding zone may be residential in character only. The business use could be considered spot zoning. It is basically an exception, or “spot” in a zone that is exceptional.
Should I Hire a Texas Land Use Lawyer for Help With Non-Conforming Use Issues?
If you have made a non-conforming use of your property in a Texas locale, you want to talk to a Texas real estate lawyer. Your use may have originated at a time in the past when zoning ordinances allowed it. Or, it may be something you have done in violation of applicable ordinances.
Whatever the issue, a Texas real estate lawyer who knows the local planning board and zoning regulations can help you navigate the process of obtaining the approval you need for your property.
