Amortization Factors
What is Amortization in City Planning?
In the context of zoning regulation, “amortization” is a term used to describe the process whereby a compliance date is set for the end of the nonconforming use. Upon a request to establish a compliance date, the Board of Adjustment holds a hearing to determine whether the continued operation of the nonconforming use will have an adverse effect on nearby properties. If it is determined to have an adverse effect, then the compliance date is set to allow for a plan where the owner’s actual investment in the use before the time that the use became nonconforming can be amortized within a definite time period. The nonconforming use ordinance sets forth the relevant factors used in setting the definite time period. Sec. 51A-4.704.
How it Works in Dallas
While the City Council can direct the Board of Adjustment (BOA) to consider amortizing a nonconforming use of property in the City, Section 51A-4.704(a)(1)(A) provides that besides the council requesting the board of adjustment “to consider establishing a compliance date for a nonconforming use,” it also provides that “in addition, any person who resides or owns real property in the city may request that the board consider establishing a compliance date for a nonconforming use.” That is, any person who lives in or owns property in the City of Dallas may request the Board of Adjustment to establish a compliance date through the amortization process outlined in the City’s development ordinances.
The subsection further provides that “upon receiving such a request, the board shall hold a public hearing to determine whether continued operation of the nonconforming use will have an adverse effect on nearby properties.” If it so determines based on the evidence, “it shall proceed to establish a compliance date for the nonconforming use; otherwise, it shall not.”
The factors the BOA considers are detailed in Section 51A-4.704(a)(1)(B) (there are 9 factors detailed on the next page), and include:
- character of the surrounding neighborhood
- the manner of use of the property
- the extent to which continued operation may threaten public health or safety
- the environmental impacts of the use’s operation, which include impacts of noise, glare, dust and odor and any other factors relevant to the issue of whether continued operation of the use will adversely affect nearby properties.
The ordinance further provides that if the BOA denies the request to establish a compliance date, that denial can be appealed to state district court. If it grants the request to establish a compliance date, that means that an entity like GAF cannot appeal that decision. GAF could not appeal the BOA’s decision to go forward with an amortization hearing until after the amortization date is set.
The BOA considers a variety of factors in coming up with a compliance date, which generally is a detailed accounting process to determine investment in structures, fixed equipment and other assets on the property before the time the use became nonconforming. The factors are spelled out in Section 51A-4.704(a)(1)(D). If the Board sets a compliance date for the nonconforming use, “the use must cease operations on that date and it may not operate thereafter unless it becomes a conforming use.” See Section 51A-4.704(a)(1)(E).
(B) Factors to be considered. The board shall consider the following factors when determining whether continued operation of the nonconforming use will have an adverse effect on nearby properties:
(i) The character of the surrounding neighborhood.
(ii) The degree of incompatibility of the use with the zoning district in which it is located.
(iii) The manner in which the use is being conducted.
(iv) The hours of operation of the use.
(v) The extent to which continued operation of the use may threaten public health or safety.
(vi) The environmental impacts of the use’s operation, including but not limited to the impacts of noise, glare, dust, and odor.
(vii) The extent to which public disturbances may be created or perpetuated by continued operation of the use.
(viii) The extent to which traffic or parking problems may be created or perpetuated by continued operation of the use.
(ix) Any other factors relevant to the issue of whether continued operation of the use will adversely affect nearby properties.
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