Aubrey City Zoning Code
§ 6-A
CONDITIONAL USE PERMITS. 1
A.
CONDITIONAL USE PERMIT REGULATIONS AND PROCESS.
(1)
Compatible and orderly development.
A Conditional Use Permit (CUP) may be granted to allow compatible and orderly development which may be suitable only in certain locations and zoning districts if developed in a specific way or only for a limited period of time.
(2)
Zoning District Compliance.
Only those uses listed in the district regulations of the Zoning Ordinance with a designation of "C" may be granted a Conditional Use permit. A Conditional Use permit shall be effective from the date of approval until the terms of the condition of approval have been expended. For example: a Conditional Use permit may be issued for a construction trailer in single-family zoning district regulations, for which the permit shall be effective from the date of approval until the construction within the development is substantially complete, the terms of which shall be described with the approval letter issued on the effective date by the Director of Planning.
(3)
Submittal Requirements.
Conditional Use permit applications to be submitted for review shall be submitted in accordance with Section 5 of the City's Zoning Ordinance, Subsection Q Site Plans.
(4)
Application Processing.
All Conditional Use Permits shall be reviewed and approved administratively by staff. At the discretion of the Director of Planning, or designee, any Conditional Use Permit application may be forwarded to the Planning and Zoning Commission for action. The Director of Planning shall not have the authority to disapprove a Conditional Use Permit application and shall forward any application which the Director of Planning cannot approve to the Planning and Zoning Commission for action. The actions of the Planning and Zoning Commission may be appealed to the City Council. The City Council shall be the final approval authority.
(5)
Conditional Use Standards.
When considering applications for a Conditional Use permit, the Director of Planning shall, on the basis of the site plan and information submitted, evaluate the impact of the use on, and the compatibility of the use with, surrounding properties and neighborhoods to ensure the appropriateness of the use at a particular location.
(6)
A certificate of occupancy shall not be issued until the final inspection shows that the project has been completed in accordance with the approved Conditional Use permit.
(7)
Maintenance of the property in conformance with the approved Conditional Use permit shall thereafter be a condition of a valid certificate of occupancy. Failure to maintain the property in conformance with an approved Conditional Use permit shall be a violation of this Section.
B.
CONDITIONAL USE PERMIT REQUIRED FOR CERTAIN ALCOHOL BEVERAGE SALES.
(1)
Definitions.
(a)
Alcoholic Beverage.
Alcohol, or any beverage containing more than one-half (1/2) of one percent of alcohol by volume, which is capable of use for beverage purposes, either alone or when diluted, (Texas Alcoholic Beverage Code Section 1.04 Definitions).
(b)
Restaurant with Alcoholic Beverage Sales.
A restaurant utilized for the retail sale of alcoholic beverages for on-premises consumption is defined as a place of business in which the consumption of food is the main source of income (alcohol sales should constitute less than fifty-one percent (51%) of the total restaurant sales) with the consumption of alcoholic beverages as a secondary source of income.
(c)
Restaurant, with Micro-Brewery.
An establishment that serves food and alcoholic beverages and that prepares handcrafted natural beer or ale intended for consumption on the premises as an accessory use.
(d)
Brewpub.
An establishment where the on-site brewing of beer occurs as well as tasting and/or retail sales.
(e)
Event Center.
A building, facility, or portion thereof, which is rented, leased, or otherwise made available to any person or group for a private event or function, including weddings, wedding receptions, conventions, association meetings, parties, and banquets, and that is generally not open to the public, whether or not a fee is charged. Also known as an assembly hall. See also "event venue" below.
(f)
Event Venue.
Similar to an Event Center, but of significantly smaller size, for example a renovated barn or a single room within a worship center.
(g)
Special Event.
Any festival, farmer's market, or other similar gathering that is open to the public without a charge for admittance and that is sponsored or organized by the City of Aubrey or to which the City of Aubrey is a partner with another organization, and which is held upon public property.
(h)
Winery/Brewery Retail Sales.
An establishment operated by the holder of a winery or brewery permit which has been lawfully issued to the permittee for the premises by the Texas Alcoholic Beverage Commission (or any successor entity thereto) in accordance with V.T.C.A., Alcoholic Beverage Code Ch. 16 for the on-premises consumption of wine and or beer.
(2)
Alcohol Sales for Restaurants, Brewpubs, Convenience Stores, Grocery Stores, and Wineries in Certain Zoning Districts.
(a)
Restaurants with Alcoholic Beverage Sales.
Any such restaurant, defined in (1)(a) [subsection B(1)(a)], above, serving alcoholic beverages may be allowed in the General Retail (GR), Shopping Center (SC), Commercial (C), and Planned Development (PD) (with nonresidential uses) zoning districts through the application of a Conditional Use Permit, subject to the distance requirements and measurement standards described in Subsection (4) and (5), below. Restaurants shall not provide off-premises sales of alcoholic beverages through outside windows or drive through windows.
(b)
Beer and Wine Sales.
Convenience Store or Grocery Store. Alcoholic beverage sales for off-premises consumption (beer and wine only) may be allowed through a Conditional Use Permit (CUP) in the General Retail (GR), Shopping Center (SC), and Commercial (C) zoning districts. In addition, locations within a Planned Development District (PD) that have an underlying nonresidential zoning designation may be allowed through the CUP process subject to the distance requirements and measurement standards described in Subsection (4) and (5), below. The sale of beer and wine in a commercial building shall be considered a secondary use, and sales of beer and/or wine are less than seventy-five percent (75%) of the total sales, such as within a convenience store or grocery store.
(c)
Event Center and Event Venue Sales.
Alcoholic beverages sales for on-premises consumption at an Event Center or Event Venue shall follow the application process as Restaurants with Alcoholic Beverage Sales, described in (2)(a), above and be subject to the distance requirements and measurement standards described in Subsection (4) and (5), below.
(d)
Winery or Brewpub.
A winery or brewpub may be allowed in the General Retail (GR), Shopping Center (SC), Commercial (C), Industrial (IND), and Planned Development District (PD) (with nonresidential uses) zoning districts through the application for a Conditional Use Permit, subject to the distance requirements and measurement standards described in Subsection (4) and (5), below.
(e)
Private Club Regulations.
Private clubs are allowed by right in the Downtown Business/ Government zoning districts and may be allowed in the General Retail (GR), Shopping Center (SC), Commercial (C), and Planned Development (PD) (with locations that are nonresidential in use) zoning districts with the application for a Conditional Use Permit, subject to the distance requirements and measurement standards described in Subsection (4) and (5), below.
(i)
All private clubs shall operate in accordance with a minimum of 35% of gross receipts be derived from the sale of food; and
(ii)
All Conditional Use permits issued for the operation of private clubs may be canceled, suspended, or revoked in accordance with the provisions of this ordinance, or as the same shall be amended, which is incorporated herein by reference and made a part hereof for all purposes.
(3)
Sale of Alcoholic Beverages Prohibited in Residential Zoning Districts.
The sale of alcoholic beverages is not allowed in areas zoned for residential use, including but not limited to planned development districts (PD) approved exclusively for residential uses. Except as otherwise specifically allowed by TABC or as otherwise provided herein, the sale of alcoholic beverages for on-premises consumption for "Country Clubs," "Golf Courses, Private Country Clubs" and "Golf Courses, Public/Municipal" in Single-Family Zoning Districts (AG-R, SF1, SF10, SF75, SFAC, MF, and PD) may be allowed through a Conditional Use Permit (CUP).
(4)
Distance Requirements for Low Volume Sales.
Low volume sales include the uses listed in (2)(a) [Subsection B(2)(a)], above and including but not limited to restaurants with alcohol sales, private clubs, beer and wine sales as a secondary use, and brewpubs. Except as otherwise specifically allowed by the Texas Alcoholic Beverage Commission or as otherwise provided herein, no alcoholic beverages may be sold within 300 feet from a church, place of worship, hospital, or a public or private school.
(5)
Measurement.
The method of measurement of such distances shall be in accordance with the terms of this section and the Texas Alcoholic Beverage Code, as amended. The measurement of the distance between the place of business and the establishment selling alcohol shall be as follows:
(a)
Public or private school, day care or childcare facility: measured from the closest property line to property line, across intersections. When the alcohol sales are located on or above the fifth floor of a multistory building, the direct line shall be from the closest property line of the school or facility to the base of the multistory building and vertically up to the floor of the business conducting alcohol sales.
(b)
Church, place of worship, or public hospital: measured from the primary front door of the church or hospital to the property line, along street lines, across intersections, to the front door of the business conducting alcohol sales.
(6)
Additional Relief from Distance Requirements.
Should an application for alcohol sales not meet the distance requirements listed in (4) [subsection B(4)], above, the applicant may apply for relief from the distance requirements through the Specific Use Permit process and a variance from the City Council.
(7)
Fees established for Alcohol Sales.
C.
CONDITIONAL USE PERMIT REQUIRED FOR TOBACCO SHOPS.
(1)
Distance Requirements.
Tobacco shops may be allowed in the IND - Industrial Zoning District through the CUP process if the shop meets both of the following distance regulations:
(a)
The tobacco shop shall be located a minimum of 1,000 feet from any public, private, or parochial school; and
(b)
The tobacco shop shall be located a minimum of 1,000 feet from another tobacco shop. The measurement of the distance requirements for tobacco shops shall be in a direct line from the property line of one property line to the other property line.
(2)
Development and Operational Standards.
Tobacco shops must meet and maintain the following standards:
(a)
The tobacco shop shall not allow or permit a minor person to enter or remain within the premises without being accompanied by his or her parent or legal guardian.
(b)
A tobacco shop that is located in a building sharing one or more common walls or sharing a common attic space with another retail or commercial establishment shall not allow product use on the premises in a manner that interferes with the adjacent establishment's use or enjoyment of the premises. Limited product testing prior to purchase is permitted inside the shop.
(3)
Failure to comply.
Any breach of the regulations and/or development & operational standards detailed in this ordinance by any tobacco shop that has been issued a Conditional Use Permit and subsequently a Certificate of Occupancy for same shall be considered nonconforming and forfeit the rights granted under the CUP and/or CO. The proprietor shall be allowed a period of ten (10) business days to sufficiently correct the breach of regulations in the notice without further change in status.
(4)
Any existing establishment meeting the definition of a "tobacco shop" and retaining a valid Certificate of Occupancy as of the date of the adoption of this ordinance may remain in business so long as there is no lapse in operation of more than six months and/or the business changes ownership. Should either of these conditions exist, the Certificate of Occupancy shall be revoked and the establishment would no longer meet the criteria for legal nonconforming use - see also Chapter 14A, Section 26, "Nonconforming Uses."
(5)
Any Tobacco Shop application that the director determines needs additional scrutiny may be brought to the Planning & Zoning Commission for a recommendation and to City Council for a decision through the Specific Use Process (SUP). In addition, should an application for a Tobacco Shop fail to meet the distance requirements listed in [subsection] (1), above, the application may be considered by the Planning & Zoning Commission for a recommendation and to City Council for a decision through the Specific Use Permit process (SUP).
(6) CBD E-Cigarette Paraphernalia Tobacco Tobacco Product Tobacco Shop
Tobacco Shop Definitions:
is defined in Section 443.001 of the Texas Health and Safety Code, meaning a nonintoxicating cannabinoid found in cannabis and hemp. CBD shall also include all other hemp-derived products.
means a battery-operated device that is typically designed to resemble a traditional cigarette and is used to inhale a nicotine, CBD or hemp containing vapor whereby the user does not produce smoke. Also referred to as a "vapor smoking device" or more commonly as "vapes."
means any device or instrument that is primarily designed for the smoking, chewing, or otherwise absorbing inhaling, snorting, sniffing, or ingesting into the body of tobacco, CBD or other hemp derived products as defined in the Texas Health and Safety Code. Items and devices classified as paraphernalia include but are not limited to the following: pipes, punctured metal bowls, bongs, water bongs, electric pipes, e-cigarettes, e-cigarette juice, vaporizers, hookahs, and devices for holding burning material. Lighters and matches are excluded from the definition of paraphernalia.
means any preparation of nicotine-rich leaves which are cured and/or processed for use in smoking, chewing, or otherwise absorbing, inhaling, snorting, sniffing, or ingesting into the human body.
means any product in leaf, flake, plug, liquid, or any other form which contains nicotine derived from the tobacco plant, or otherwise derived, which is intended to enable human consumption. For the purposes of this chapter the term "tobacco product" excludes any product that has been specifically approved by the Unites States Food and Drug Administration (FDA) for sale as a tobacco/smoking cessation product or for other medical purposes, where such product is marketed and sold solely for such a purpose.
means a retail establishment utilized primarily for the sale of cigarettes, electronic cigarettes, vaping devices, cigars, tobacco, CBD, pipes, edibles and other devices for the inhalation or consumption of tobacco, CBD or other hemp derived products, and other smoking supplies or paraphernalia, with no on-site smoking or tobacco consumption. Limited product testing prior to purchase is permitted inside the shop.
(Ordinance 905-25 adopted 5/22/2025)
[1]
Editor's Note: Former section 6 pertaining to conditional uses and specific use permits, was amended and replaced with similar provisions by Ordinance 905-25 adopted 5/22/2025. Prior to the replacement, this section derived from the following: Ordinance 135-87 adopted 4/14/87; Ordinance 415-09 adopted 3/24/09; Ordinance 474-12 adopted 8/21/12; Ordinance 497-13 adopted 3/19/13; Ordinance 548-14 adopted 12/16/14; Ordinance 852-24 adopted 6/27/2024; Ordinance 904-25 adopted 5/22/2025.