San Marcos Development Code 9.1.2020

1 C H A P T E R

General

Section 1.5.1.10Approval Process

Division 2: TERMINATION OF NONCONFORMING RIGHTS

A. Responsible Official Action

Section 1.5.2.1Amortization of Nonconforming Uses

1. Upon receipt of an application for a change in nonconforming status, the Responsible Official shall transmit the application to the Zoning Board of Adjustments for processing and determination in accordance with this Section. 2. The Responsible Official shall provide personal notification of the public hearing before the ZBOA in accordance with Section 2.3.2.1. 3. The Responsible Official shall conduct a public hearing in accordance with Section 2.3.3.1. 1. The ZBOA shall grant, grant subject to conditions or deny the request for a change in nonconforming status. C. Burden of Proof. The applicant bears the burden of proof to demonstrate that an application for a change in nonconforming status should be granted. D. Criteria for approval. In deciding the application, the ZBOA shall consider the following criteria. 1. The proposed change in nonconforming status results in greater conformance with the Comprehensive Plan. 2. The proposed change in nonconforming status results in greater conformance with this Development Code such that the nonconforming use or structure can eventually come into full compliance with this Development Code. 3. The degree of the proposed request is the minimum amount necessary. 4. Granting the application shall not result in greater harm to adjacent and neighboring land uses than the original nonconformity. B. Zoning Board of Adjustments Action

A. Purpose. The purpose of amortizing a nonconforming use is to terminate the rights of a non-conforming use or structure after the owner’s actual investment in the use or structure has been realized. B. Initiation of Compliance Case. Only the City Council, by majority vote, may request that the Zoning Board of Adjustments (ZBOA) consider establishing a compliance date for a nonconforming use. C. Public Hearing Process. Upon receiving a request under Section 1.5.2.1 from the City Council, staff shall schedule the first public hearing before the ZBOA. The ZBOA may establish a compliance date only after holding two separate hearings. 1. First Public Hearing. The ZBOA 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 ZBOA determines that continued operation of the use will have an adverse effect on nearby properties, it shall schedule a second public hearing to establish a compliance date for the nonconforming use; otherwise, it shall not. In determining whether the continued operation will have an adverse effect on nearby properties, the ZBOA shall consider the following factors:

a. The Comprehensive Plan.

b. The character of the surrounding neighborhood.

c. The degree of incompatibility of the use with the zoning district in which it is located.

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.

1:9

Amended: September 1, 2020 San Marcos Development Code