O517ORDINANCE NO. 517
AN ORDINANCE AMENDING CHAPTER 17 "PLANNING AND LAND
DEVELOPMENT ", ARTICLE VI "ZONING" OF THE CODE OF ORDINANCES
OF THE CITY OF KENNEDALE, TEXAS, BY ADDING ADDITIONAL CRITERIA
FOR DETERMINING A REASONABLE AMORTIZATION PERIOD FOR THE
PURPOSE OF DISCONTINUING NONCONFORMING USES BY A DATE
CERTAIN; PROVIDING THAT THIS ORDINANCE SHALL BE CUMULATIVE
OF ALL ORDINANCES; PROVIDING A SEVERABILITY CLAUSE; PROVING A
PENATLY FOR VIOLATIONS HEREOF; PROVIDING A SAVINGS CLAUSE,
PROVIDING FOR PUBLICATION IN THE OFFICIAL NEWSPAPER; AND
PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City of Kennedale is a home rule city acting under its charter adopted
by the electorate pursuant to Article XI, Section 5 of the Texas Constitution and Chapter 9 of the
Local Government Code; and
WHEREAS, the City Council has adopted a Zoning Ordinance, which ordinance
regulates and restricts the location and use of buildings, structures and land for trade, industry,
residence and other purposes, and provides for the establishment of zoning districts of such
number, shape and area as may be best suited to carry out these regulations; and
WHEREAS, Section 17 -428 of the Zoning Ordinance provides that it is the declared
purpose of the Zoning Ordinance that nonconforming uses be eliminated and be required to
conform to the regulations prescribed in this section with due regard for the property rights of the
persons affected when considered in light of the public health, safety, and welfare, the character
of the area surrounding the nonconforming use and the conservation and preservation of
surrounding properties and their values; and
WHEREAS, the Board of Adjustment has the authority under Section 17 7428 of the
Zoning Ordinance to take action to abate, remove, limit or terminate any nonconforming use or
building under reasonable guidelines as set forth in Section 17 -430; and
WHEREAS, the City Council deems it to be in the best interest of the public health,
safety, and welfare that in determining a reasonable amortization period for nonconforming uses
certain factors should be considered; and
WHEREAS, a public hearing was duly held by the Planning and Zoning Commission of
the City of Kennedale on the 21 day of February, 2013, and by the City Council on the 14 day
of March, 2013, with respect to the adoption of this proposed amendment to the Zoning
Ordinance; and
WHEREAS, all requirements of law dealing with notice and publication and all
procedural requirements for adoption of this ordinance have been complied with in accordance
with the Zoning Ordinance and Chapter 211 of the Local Government Code.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF KENNEDALE, TEXAS:
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SECTION 1.
Chapter 17, Article VI, Section 17 -428, of the Kennedale City Code is hereby amended
by repealing Subsection (i)(6).
SECTION 2.
Chapter 17, Article VI, Section 17 -428, of the Kennedale City Code is hereby amended
by adding a new Subsection 0) to read as follow:
0) Amortization of nonconforming uses and structures.
(1) The board of adjustment shall, from time to time,. on its own motion, or upon
direction of the city council, inquire into the existence, continuation or
maintenance of any nonconforming use or structure within the city. If the board
of adjustment or the city council determines that amortization of a nonconforming
use is appropriate, the board shall take specific action to abate, remove, limit or
terminate any nonconforming use or structure under a reasonable plan whereby
the owner's investment in the nonconforming use or building can be recouped
through amortization over a definite period of time, taking into consideration the
general character of the neighborhood and the necessity for all property to
conform to the regulations of this article.
(2) The board of adjustment shall conduct a hearing for the purpose of determining a
date certain for termination of the nonconforming use or removal of the
nonconforming structure, or both, with respect to the property. Prior notice of
such hearing shall be given to the property owner.
(3) The date established for termination of the nonconforming use or removal of the
nonconforming structure shall give the property owner a reasonable opportunity
to recover its investment in the nonconforming use or structure from the time such
use or structure became nonconforming.
(4) The board of adjustment shall measure the reasonableness of the opportunity for
recoupment of the property owner's investment by conditions existing at the time
such use or structure became nonconforming.
(5) The following factors shall be considered by the board of adjustment in
determining a reasonable amortization period:
a. The owner's capital investment in structures, fixed equipment, and other
assets that cannot reasonably be used in conformance with the zoning
district regulations (excluding inventory and other assets that may be
feasibly transferred to another site) made on the property before the time
the use, the structure, or both, as applicable, became nonconforming.
Costs of replacements, improvements or additions made after the structure
or use became nonconforming shall not be included. Costs of the land or
structures that reasonably can be used for a conforming use shall not be
included.
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b. Any costs that are directly attributable to the establishment of a
compliance date, including demolition expenses and relocation expenses.
C. Recovery of investment, including net income and depreciation, and any
profit or loss realized on the investment.
d. General character of the neighborhood in proximity to the nonconforming
use or structure and the necessity for all property within the city to
conform to the regulations of the Zoning Ordinance.
(6) Once the board of adjustment establishes a compliance date for a nonconforming
use, the use must cease operations on or before that date and it may not operate
thereafter except in compliance with the applicable zoning district regulations.
(7) If the board of adjustment establishes a termination date for a nonconforming
structure, the structure must be completely removed from the property by that
date, by demolition or otherwise, and such structure may not be reconstructed or
relocated in any other location in the city where it would not be in conformance
with all provisions of the Zoning Ordinance.
SECTION 3.
Chapter 17, Article VI, Section 17 -430 of the Kennedale City Code is hereby amended by
repealing Subsection (e)(3) and revising (e)(4) to read as follows:
(4) Require the discontinuance of a nonconforming use or building under a
reasonable plan whereby the owner's investment in the nonconforming
use or building can be recouped through amortization over a definite
period of time, taking into consideration the criteria set forth in Section
17 -428.
SECTION 4. PROVISIONS CUMULATIVE
This ordinance shall be cumulative of all provisions of ordinances and of the Code of
Ordinances of the City of Kennedale, Texas, as amended, except where the provisions of this
ordinance are in direct conflict with the provisions of such ordinances and such Code, in which
event the conflicting provisions of such ordinances and such Code are hereby repealed.
SECTION 5. PROVISIONS SEVERABLE
It is hereby declared to be the intention of the City Council that the phrases, clauses,
sentences, paragraphs, and sections of this ordinance are severable, and if any phrase, clause
sentence, paragraph or section of this ordinance shall be declared unconstitutional by the valid
judgment or decree of any court of competent jurisdiction, such unconstitutionality shall not
affect any of the remaining phrases, clauses, sentences, paragraphs and sections of this
ordinance, since the same would have been enacted by the City Council without the
incorporation in this ordinance of any such unconstitutional phrase, clause, sentence, paragraph
or section.
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SECTION 6.
Any person, firm or corporation who violates, disobeys, omits, neglects or refuses to
comply with or who resists the enforcement of any of the provisions of this Ordinance shall be
fined no more than Two Thousand Dollars ($2,000.00) for each violation, and in addition shall
pay all costs and expenses involved in the case. Each day a violation occurs is a separate
offense. Nothing herein contained shall prevent the City from taking such other lawful action as
is necessary to prevent or remedy any violation.
SECTION 7.
All rights and remedies of the City of Kennedale are expressly saved as to any and all
violations of the provisions of the Kennedale City Code or any other ordinances affecting land
use which have accrued at the time of the effective date of this ordinance; and, as to such accrued
violations and all pending litigation, both civil and criminal, whether pending in court or not,
under such ordinances, same shall not be affected by this ordinance but may be prosecuted until
final disposition by the courts.
E7T1�117►
The City Secretary of the City of Kennedale is hereby directed to publish in the official
newspaper of the City of Kennedale, the caption, penalty clause, publication clause and effective
date clause of this as provided by Section 3.10 of the Charter of the City of Kennedale.
SECTION 9. EFFECTIVE DATE
This ordinance shall be in full force and effect from and after its passage and publication
as required by law, and it is so ordained.
PASSED AND APPROVED ON THIS 14TH DAY OF MARCH, 2013.
ATTEST:
I Clark, Mayor
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