Berkeley City Zoning Code
ARTICLE VIII
Special Uses 1
Section 400.530 Special Use Regulations.
[CC 1961 §§23.19 — 23.19.11; Ord. No. 2974 §23.19, 6-20-1988; Ord. No. 3048 §1, 5-1-1989; Ord. No. 3331 §1, 6-5-1995; Ord. No. 3589 §§1 — 2, 3-17-2003; Ord. No. 3791 §1, 5-5-2008]
A.
If, after a public hearing and study, the City Council shall find that, consistent with proper planning to preserve and promote the public health, safety and general welfare, a building or use should be permitted in any zoning district in the City which is not permissible according to this Chapter, then the City Council, by passing a resolution, may issue a special use permit for the special uses listed in each district.
B.
Applications for the special use permit shall be made to the Public Works Director with a site plan and necessary descriptive material of the entire property, including all permitted and special uses. Each application shall be verified by the owner or the authorized representative of the owner of the property subject to the permit, attesting to the truth and correctness of all facts and information presented in the application.
[Ord. No. 4806, 9-25-2023]
C.
Applications shall be submitted by the Public Works Director to the City Plan Commission forthwith. The City Plan Commission shall investigate and make a report regarding the effect of such proposed building or use upon character of the neighborhood, aesthetics, traffic conditions, fire hazards, public utility facilities, and other matters pertaining to the public health, safety, and general welfare of the community. Such report shall be filed with the City Council within sixty (60) days of the day of reference to the Commission. If the City Plan Commission fails to recommend any application within sixty (60) days of reference, unless applicant petitions for a delay and said delay is deemed to be of a reasonable nature, the plan(s) and the meeting minutes shall be forwarded to the next City Council meeting for their action. This action may include approval to order a public hearing, return the application to the City Plan Commission, or rejection of the application without prejudice based upon criteria, including, but not limited to, that described in Sections 400.370 and 400.530(B), as well as other appropriate Sections of the City Charter or Municipal Code.
[Ord. No. 4806, 9-25-2023]
D.
Upon receipt of the report of the Commission, the City Council shall hold a public hearing in relation to the application. The Council shall cause notice of the time, place, and purpose of such hearing to be published in two (2) consecutive issues of a newspaper of general circulation in the City, the first (1st) notice of which shall be published at least fifteen (15) days prior to the date of the hearing, and shall, in addition, cause similar notices to be prominently posted at least fifteen (15) days prior to the hearing in no less than ten (10) places in the City. Five (5) or more of said notices shall be posted in the immediate vicinity of the property which would be affected by the proposed change. The provisions pertaining to public protests against changes in the zoning ordinance as provided by State law for all incorporated Cities, Towns, and Villages situated in Counties having a population of ten thousand (10,000) or more inhabitants, shall be applicable. Costs of such publication shall be paid by the applicant.
E.
The applicant shall be responsible for and provide the City Clerk with an accurate list of all owners of property within one hundred eighty-five (185) feet distance from the boundaries of the property sought to be devoted to such building or use. The City Clerk shall notify, in writing, all owners of said property of the filing of the application, the proposed building or use proposed by the application and date of the hearing provided for in Subsection (D) of this Section.
F.
After the City Council's hearing, the Council shall consider, in addition to matters mentioned hereinabove, the following:
1.
The compatibility with surrounding uses and compatibility with the surrounding neighborhood.
2.
The comparative site, floor area and mass of the proposed structure in relationship to adjacent structures and buildings in the surrounding properties and neighborhood.
3.
The frequency and duration of various indoor and outdoor activities and special events and the impact of these activities on the surrounding area.
4.
The number of transit movements generated by the proposed use and relationship to the amount of traffic on abutting streets and on minor streets in the surrounding neighborhood, not in terms of the street's capacity to absorb the additional traffic, but rather in terms of any significant increase in hourly or daily traffic levels.
5.
The capacity of adjacent streets to handle increased traffic in terms of traffic volume.
6.
The added noise level created by activities associated with the proposed use and the impact of the ambient noise level of the surrounding area and neighborhood.
7.
In commercial districts, the negative impact on the economic viability of the commercial area of businesses with poor appearance due to type of goods or services offered; limited business hours or other evidence of limited use of building for commercial purposes; and interruption of the continuity of retail sales uses and walk-in customers in commercial areas predominately oriented to retail sales.
8.
The requirements for public services where the demands of the proposed use is in excess of the individual demand of adjacent land uses in terms of Police and fire protection, the presence of any potential or real fire hazards created by the proposed use.
a.
The general appearance of the neighborhood will not be adversely affected by the location of the proposed use on the parcel, nor will the materials used in the construction of the proposed buildings of the special use be greatly dissimilar, or that the general architecture of the building stand out or create a visual problem within the neighborhood.
b.
The impact of night lighting in terms of intensity and duration and frequency of use as it impacts adjacent properties and in terms of presence in the neighborhood.
c.
The impact of the landscaping of the proposed use in terms of maintained landscaped areas versus areas to remain in a natural state, openness of landscape versus the use of buffers and screens.
d.
The impact of a significant amount of hard-surfaced areas for buildings, sidewalks, drives, parking areas, and service areas in terms of noise transfer, water runoff and heat generation.
e.
The potential for the proposed use to remain in existence for a reasonable period of time and not become vacant, or unused. Consideration should also be given to unusual single purpose structures or components of a more temporary nature.
f.
In the case of any antenna, any interference with a neighbor's vision, appearance or utilization of their property.
g.
In addition to any other requirements, all requirements outlined in FCC Ruling PRB-1 shall be met for any amateur radio towers and/or antennas. Due to the City's closeness to the St. Louis International Airport, any applicant shall provide a letter from the Airport Commission or the FAA stating that the proposed radio tower, antenna or wave length will not interfere with Airport operations and/or communications.
G.
If the City Council determines that the public health, welfare and safety are adequately protected in view of the foregoing criteria, then the special use permit shall be granted; but if it is negative as to any of such paragraphs, then the special use permit shall be denied.
H.
In granting such special use permits, the City Council may provide that the permit be valid for a limited period of time not to exceed ten (10) years. Upon expiration of the time limit specified in the permit, the holder of the permit may request the permit be reviewed by the City Council, and the City Council may extend it for another limited period of time not to exceed ten (10) years. The City Council shall provide that the permit be exclusive only for the holder and non-transferable.
I.
Substantial work or construction as determined by the City Council under the permit shall be commenced within ninety (90) days and completed with actual occupancy within one hundred eighty (180) days or the permit shall terminate. The permit may be extended by the City Council. The City Council may condition the permit with conditions to protect the public health, safety and general welfare. "Actual occupancy" shall mean the business is open to the public.
J.
The City Council may, in accordance with Section 400.580, institute a rezoning. The City Council, after a public hearing, may revoke a special use permit for failure of compliance with the regulations and restrictions of this Chapter or the requirements of the special use permit.
K.
A fee of three hundred fifty dollars ($350.00) shall be paid to the Director of Finance at the time of filing an application for a special permit. There shall be no additional cost for advertising.
Section 400.535 Land Use Regulations to Reclassify Certain Uses as Special Uses in All Zoning Districts and Setting Out the Procedures for Obtaining a Special Use Permit.
[Ord. No. 3681 §§1 — 10, 6-5-2006]
A.
The "land use regulations" (entitled "zoning ordinances") previously adopted and codified relating to bars, nightclubs, liquor stores, restaurants, massage parlors and establishments at which any form of gambling or game of chance is permitted or played are hereby amended as follows.
B.
Special Permit Uses.
1.
Bars, nightclubs, liquor stores, restaurants, massage parlors and establishments at which any form of gambling or game of chance is permitted or played shall be deemed a special use in each and every zoning district within the City of Berkeley, Missouri.
2.
It is the intent of special permit uses to provide for certain uses which shall be permitted only if adequate conditions exist or can be imposed that will make such uses compatible with the purposes of this Section. The special permit procedure shall provide for some measure of individualized judgment and the imposing of conditions on certain uses in order to make them compatible with permitted principal uses in the applicable zoning district. It is further intended that the special permit process shall provide a method whereby it can be determined whether or not a use would cause any damage, hazard, nuisance or other detriment to persons or property in the vicinity.
3.
The following uses shall be permitted only as regulated by this Section of the zoning districts and regulations ordinance:
a.
Bar or nightclub.
b.
Liquor store.
c.
Restaurant, if serving alcoholic beverages.
d.
Establishment at which any form of gambling or game of chance is permitted or played.
e.
Adult book store, adult videotape store, adult motion picture theater or adult entertainment establishment, as the same are defined in this Section.
f.
Massage parlor.
C.
Procedures.
1.
The Berkeley Planning and Zoning Commission may by special permit authorize any of the uses which are permitted by special permit within this Section. Such uses shall be subject to all other regulations set forth in this Section unless the special permit specifically exempts said use from any one (1) or more regulations. In addition, the Commission may attach reasonable restrictions to any special permit use as it deems necessary to comply with the purposes of this Section. Existing special permit uses shall not be enlarged, extended or relocated without first receiving approval of a new special permit.
2.
Before the issuance of a special permit, the Commission shall make a decision regarding the effects of such proposed use upon the character of the neighborhood, public utilities, traffic conditions, fire protection and other matters pertaining to the public health, safety and general welfare. Furthermore, the Commission shall:
3.
Three (3) copies of the plot plan of the lot and proposed buildings or uses, drawn to an accurate scale and showing all pertinent information shall accompany the three (3) copies of the application for a special permit. Filing requirement, including filing fees, deadlines and public hearing procedures, shall be as set forth in this Code.
D.
Requirements. The following uses shall be subject to the restrictions and conditions set forth below, in addition to compliance with applicable zoning and planning ordinances and regulations:
1.
Adult bookstore, adult videotape store, adult motion picture theater, adult entertainment establishment, massage parlor and establishment where consumption of beer or alcoholic beverages or gambling are permitted on the premises.
2.
Said uses shall not be located within one thousand three hundred twenty (1,320) feet of each other and any residentially zoned property within the City.
3.
The Planning Commission may waive this spacing provision for an adult bookstore, adult videotape store, adult motion picture theater, adult entertainment establishment, massage parlor and establishment where consumption of beer or alcoholic beverages or gambling are permitted on the premises if the following findings are made:
a.
The proposed uses will not be contrary to the public interest or adversely affect the value, use or enjoyment of nearby properties and that the spirit and intent of this Section will be observed.
b.
The proposed use will not enlarge or encourage the development of a "red light" or "skid row" area.
c.
The establishment of an additional regulated use in the area will not be contrary to any program of neighborhood conservation nor will it interfere with any program or urban renewal.
d.
All applicable regulations of this Section will be observed.
E.
It shall be unlawful to hereafter establish any adult bookstore, adult videotape store, adult motion picture theater, adult entertainment establishment, massage parlor and establishment where consumption of beer or alcoholic beverages or gambling are permitted on the premises in a residential district, a business and residential district or an industrial district without first following the procedures set out herein.
F.
It shall be unlawful to hereafter establish any adult bookstore, adult videotape store, adult motion picture theater, adult entertainment establishment, massage parlor and establishment where consumption of beer or alcoholic beverages or gambling are permitted on the premises in a central business district or manufacturing district if the proposed location is within one thousand three hundred twenty (1,320) feet of a residence district, business and residential district or a public/private school or day care. This prohibition shall be waived upon the presentation to the Zoning and Planning Commission of a valid petition requesting such waiver, signed by at least fifty-one percent (51%) of those persons owning, residing or doing business within one thousand three hundred twenty (1,320) feet of the proposed location. The circulator of the petition requesting a waiver shall subscribe to an affidavit attesting to the fact that the circulator personally witnesses the signatures of the petition and that the same were affixed to the petition by the persons whose names appear thereon. The Zoning and Planning Commission shall not consider the waiver of spacing requirement set forth in this Subsection until the above described petition shall have been filed with and verified by the Berkeley City Clerk.
G.
No adult bookstore, adult videotape store, adult motion picture theater, adult entertainment establishment, massage parlor and establishment where consumption of beer or alcoholic beverages or gambling are permitted on the premises shall be located within one thousand three hundred twenty (1,320) feet of a school, park, library or place of worship.
H.
Advertisement, displays or other promotional materials depicting, describing or relating to "specified sexual activities" (as defined in this Chapter) or "specified anatomical areas" (as defined in this Chapter) shall not be visible from a public sidewalk or public road.
I.
If the special permit use relates to any adult videotape store, adult motion picture theater or adult entertaining establishment, massage parlor, all doors, windows and other apertures shall be located, covered or screened in such a manner as to prevent viewing the interior of the establishment from a public sidewalk or public street.
J.
In the event that an adult bookstore, adult videotape store, adult motion picture theater, adult entertainment establishment, massage parlor and establishment where consumption of beer or alcoholic beverages or gambling are permitted on the premises is replaced by another type of land use, the adult bookstore, adult videotape store, adult motion picture theater, adult entertainment establishment and establishment where consumption of beer or alcoholic beverages or gambling are permitted on the premises shall be required to obtain a new special permit before it can be re-established.