GAF is a Non-Conforming Land Use Since 1987
GAF is a Nonconforming Use
To be amortized, the property first has to be determined a non-conforming use. As an asphalt shingle manufacturer, GAF, is not compatible with the current zoning district in which it is located and is incompatible with the adjacent land uses. The City of Dallas ordinance definition of nonconforming uses or structures states:
(89) NONCONFORMING STRUCTURE means a structure which does not conform to the regulations (other than the use regulations) of this chapter, but which was lawfully constructed under the regulations in force at the time of construction.
(90) NONCONFORMING USE means a use that does not conform to the use regulations of this chapter but was lawfully established under the regulations in force at the beginning of operation and has been in regular use since that time.SEC. 51A-2.102. DEFINITIONS.
The last Certificate of Occupancy (“CO”) that was issued on May 15, 1992, stated that the zoning was IR (Industrial Research) and the Land Use Description was INDUSTRIAL (INSIDE). The October 12, 2020 CO application for “INDUSTRIAL (INSIDE)” was “completed” on August 16, 2021 but was listed as “Cancelled” on the Develop Dallas website. The August 6, 2021 application for “INDUSTRIAL (INSIDE)” is listed as issued on December 2, 2021, but is listed as “pending inspection” on Develop Dallas. Therefore, neither of these applications have been granted as of 4/29/2022.
The 51A-4.123(c) Industrial/research (IR) district requirements are:
(1) Purpose. To provide for research and development, light industrial, office, and supporting commercial uses in an industrial research park setting. This district is not intended to be located in areas of low and medium density residential development.
The uses allowed include “Industrial (inside). [See Section 51A-4.203(b)(1).]”. (c)(1)(C). But 51A-4.203(a), the first section of the Industrial Uses provision, defines “Potentially incompatible industrial uses” that are permitted by SUP only in the IM district.
(a) Potentially incompatible industrial uses.
(1) A “potentially incompatible industrial use” listed in this subsection is permitted by SUP only in the IM district.
The section goes on to state:
(3) Main uses that manufacture the following products are hereby declared to be potentially incompatible industrial uses:
– Asphalt or asphalt products.
This provision goes on to define Industrial (inside) but makes it clear that if the use is “potentially incompatible” it is permitted by SUP only in the IM district.
(b)(1) Industrial (inside).
(A) Definition: An industrial facility where all processing, fabricating, assembly, or disassembly takes place wholly within an enclosed building.
(B) Districts permitted: If this use is “potentially incompatible” [See Subsection (a)], it is permitted by SUP only in the IM district; otherwise, it is permitted by right in industrial districts with RAR required.
GAF manufactures Asphalt products. The TCEQ description from the GAF Statement of basis of the Federal operating permit assigns the NAICS code for “Asphalt Shingle and Coating Materials Manufacturing.” The text states:
“The Dallas facility manufactures asphalt shingles for the roofing industry. In the manufacture of asphalt roofing products, a dry non-woven fiberglass mat is fed into the roofing machine from an unwind stand. . . The fiberglass mat is next carried through the coating section, where coating asphalt mixed with stabilizer (limestone) is applied to both surfaces of the mat.”
Only non-conforming uses that are causing an adverse impact on the public are considered eligible for amortization. As summarized above, GAF is a non-conforming use, and so qualifies as eligible for amortization if adverse impact is found. The following sections will detail the Ciy’s policy to eliminate non-conforming uses and how the factory is causing an adverse impact.
City of Dallas Policy is to Eliminate Non-Conforming Uses
Section 51A-4.704 Nonconforming Uses and Structures states that “nonconforming uses be eliminated and be required to comply with the regulations of the Dallas Development Code”.
(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.
On October 24, 2018 City Attorney Chris Caso addressed the Dallas Mayor and City Council regarding a request to establish a compliance date for the now amortized Jim’s Car Wash in South Dallas. Mr. Caso stated the responsibility of the City is “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.”
Action via Amortization is Needed
Because GAF is a Non Conforming Use, and a Potentially Incompatible Use, per the City’s code it is required for the City to take action via amortization to eliminate this Non Conforming Use. The use having been established long before the zoning code change in 1987 does not change anything. At the point at which the zoning code was changed in 1987, GAF became non-conforming. It is the City’s responsibility to eliminate non-conforming uses “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.”
In less than a 0.5 mile radius of GAF, there are childcare facilities, homes, churches, public schools, parks, community gardens, a public library, and commercial uses. GAF stands out like a sore thumb in what could be a thriving healthier neighborhood, and further perpetuates the health and wealth gap between West Dallas and other parts of our city.
When the City had the opportunity to correct the zoning that inappropriately concentrated families next to heavy industry in 1986 with the transition of the zoning code, the City miscategorized the neighborhood as Industrial Growth instead of Industrial with Residential Adjacency, which further misaligned with the character of the neighborhood. The City acknowledged the air pollution issue in West Dallas, the issues around adjacency of residents and industry, but failed to act. The City did, however align the zoning code to position GAF as a non-conforming land use in 1986 when it codified that Asphalt production cannot happen within an IR district.
From 1986 onwards, GAF has been a non-conforming use. Proactive action is required to eliminate GAF and allow for the growth and development of neighborhoods in Dallas. West Dallas today is very different from West Dallas in 1946 when GAF began operations. Everything has changed to increase the quality of life of residents in the neighborhood, except for GAF. It must go.
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