Bertram City Zoning Code
ARTICLE III
PLAN REQUIREMENTS AND SPECIAL PROVISIONS
§ 60 Construction Plans.
(a)
Purpose and Applicability.
Construction Plans provide detailed graphic information and associated text indicating property boundaries, easements, land use, street access, utilities, drainage, off-street parking, lighting, signage, landscaping, vehicle and pedestrian circulation, open spaces, and general conformance with the Master Plan and ordinances of the City. Construction Plan approval by the City Engineer shall be required for any development or improvement of land subject to this Ordinance, and not otherwise required by City’s Subdivision Ordinance.
(b)
Format.
Construction Plans shall be drawn on twenty-four inch by thirty-six inch (24" x 36") sheets at a generally accepted engineering scale, and sufficient to thoroughly meet the informational requirements herein.
(c)
Content.
Construction Plans shall include all of the land proposed to be developed or improved, and any off-site improvements required to accommodate the project. Construction Plans shall contain, or have attached thereto:
(i)
A Cover Sheet, showing
(A)
Names, addresses and phone numbers as applicable of the record owner and developer and all authorized agents including the architect, engineer, landscape architect, and surveyor.
(B)
The proposed name of the project.
(C)
A location map showing the relation of the project to streets and other prominent features.
(D)
Certification, revision and signature blocks as required by the City.
(E)
The total acreage of the property to be developed.
(F)
Current zoning district as defined by this Ordinance.
(G)
An Existing Conditions Plan, showing
(1)
Boundary of existing zoning districts, if applicable.
(2)
The existing property lines, including bearings and distances, of the land being developed or improved. Property lines shall be drawn sufficiently wide to provide easy identification.
(3)
The location of existing structures and improvements, if applicable.
(4)
The accurate location, Caliper and Critical Root Zone of Significant Trees 8-inch Caliper and larger, in relation to the property boundary and, if applicable, within the limits of the proposed off-site improvements.
(5)
Centerline of watercourses, creeks, existing drainage structures and other pertinent data shall be shown.
(6)
Lines delineating the Regulatory One Hundred (100) Year Floodplain, if applicable.
(7)
Topographic data indicating one (1) foot contour intervals. The contoured area shall extend outward from the property boundary for a distance equal to twenty-five percent (25%) of the distance across the tract, but not fewer than fifty (50) feet nor more than two hundred (200) feet.
(8)
The locations, sizes and descriptions of all existing utilities, including but not limited to sewer lines, lift stations, sewer and storm sewer manholes, water lines, water storage tanks, and wells within the property, and/or adjacent thereto. Existing overhead and underground electric utilities shall also be shown.
(9)
The location, dimensions, names and descriptions of all existing or recorded streets, alleys, reservations, railroads, easements, building setbacks or other public rights-of-way within the property, intersecting or contiguous with its boundaries or forming such boundaries, as determined from existing deed and plat records. The existing right-of-way width of any boundary street to the property shall also be shown.
(10)
Location of City limit lines and/or outer border of the City’s extraterritorial jurisdiction, as depicted on the City’s most recent base map, if either traverses or is contiguous to the property boundary.
(H)
An Erosion and Sedimentation Control Plan, showing
(1)
Proposed fill or other structure-elevating techniques, levees, channel modifications and detention facilities.
(2)
Existing and proposed topographic conditions with vertical intervals not greater than one (1) foot referenced to a United States Geological Survey or Coastal and Geodetic Survey benchmark or monument.
(3)
The location, size, and character of all temporary and permanent erosion and sediment controls with specifications detailing all on-site erosion control measures which will be established and maintained during all periods of development and construction.
(4)
Contractor staging areas, vehicle access areas, temporary and permanent spoils storage areas.
(5)
A plan for restoration and for the mitigation of erosion in all areas disturbed during construction.
(I)
A Site Plan, showing all visible improvements to the land, including
(1)
The location, dimensions, square footage, height, and intended use of existing and proposed buildings on the site.
(2)
Location, number and dimensions of existing and proposed parking spaces, distinguishing between standard, handicap and van handicap spaces, and calculation of applicable minimum requirements in accordance with this Ordinance.
(3)
The location, type and dimensions of proposed driveways, signs and traffic-control devices.
(4)
Compliance with the City’s Transportation policies provided in the City’s Subdivision Ordinance.
(J)
A Grading and Drainage Plan, showing
(1)
A Drainage Area Map delineating areas to be served by proposed drainage improvements.
(2)
Detailed design of all drainage facilities, including typical channel or paving section, storm sewers, detention ponds and other stormwater control facilities.
(3)
Accurate cross-sections, plan and profiles of every drainage improvement proposed in a public utility easement and/or public right-of-way.
(4)
Existing and proposed topographic conditions with vertical intervals not greater than one (1) feet [sic] referenced to a United States Geological Survey or Coastal and Geodetic Survey benchmark or monument.
(5)
Attendant documents containing design computations and any additional information required to evaluate the proposed drainage improvements.
(6)
Compliance with the City’s Drainage policies provided in the City’s Subdivision Ordinance.
(K)
A Utility Plan, showing
(1)
The layout, size and specific location of proposed water mains and other related structures and in accordance with all current City standards, specifications, and criteria for construction of water mains.
(2)
The location of proposed fire hydrants, valves, meters and other pipe fittings.
(3)
Design details showing the connection with the existing City water system.
(4)
The layout, size and specific location of the proposed wastewater lines, lift stations, and other related structures, and in accordance with all current City standards, specifications, and criteria for construction of wastewater systems.
(5)
Plan and profile drawings for each line in public right-of-way or public utility easements, showing existing ground level elevation at centerline of pipe, pipe size and flow line elevation at all bends, drops, turns, station numbers at fifty (50) foot intervals.
(6)
Detailed design for lift stations, special wastewater appurtenances, if applicable.
(7)
Utility demand data, and other attendant documents, to evaluate the adequacy of proposed utility improvements, and the demand on existing City utilities.
(8)
Compliance with the City’s Utility policies provided in the City’s Subdivision Ordinance.
(L)
A Building Plan, including floor, building, foundation, and roof plans, and elevations.
(M)
A Landscape Plan, showing
(1)
dimensions, types of materials, size and spacing of proposed vegetative materials, planting details and irrigation appurtenances in relation to proposed structures or other significant improvements.
(2)
the following maintenance note: The developer and subsequent owners of the landscaped property, or the manager or agent of the owner, shall be responsible for the maintenance of all landscape areas. Said areas shall be maintained so as to present a healthy, neat and orderly appearance at all times and shall be kept free of refuse and debris. All planted areas shall be provided with a readily available water supply and watered as necessary to ensure continuous healthy growth and development. Maintenance shall include the replacement of all dead plant material if that material was used to meet the requirements of the Subdivision Regulations.
(3)
Compliance with the City’s landscaping and screening requirements of this Ordinance. See Section 61.
(N)
Construction Details, showing (when applicable)
(1)
Structural retaining walls and/or detention outlet structures
(2)
Storm sewer manhole and covers, typical channel sections, inlets, safety end treatments and headwalls
(3)
Wastewater manholes and covers, cleanouts, grease traps, pipe bedding and backfill
(4)
Water valves, water meters, fire hydrants, thrust blocks, backflow prevention and concrete encasement.
(5)
Driveways, curb and gutter, sidewalks, curb ramps, pavement sections and pavement repair
(6)
Silt fence, rock berms, stabilized construction entrance, inlet protection
(7)
Traffic controls when working in public right-of-way.
(8)
Applicable City Standard Details and Specifications.
(d)
Procedure.
Construction Plans for the development or improvement of land in the City limits, not otherwise governed by the City’s Subdivision Ordinance, shall be submitted to the City for approval prior to the issuance of a Building Permit.
(i)
Two (2) complete sets of Construction Plans shall be submitted to City staff for review by the City Engineer at any time prior to the issuance of a Building Permit, along with the following:
(ii)
Completed application forms and the payment of all applicable fees.
(iii)
A letter requesting any variances from the provisions of this Ordinance.
(iv)
Any attendant documents needed to supplement the information provided on the Construction Plans.
(v)
City staff shall review all Construction Plan submittals for completeness at the time of application. If, in the judgment of City staff, the Construction Plan submittal substantially fails to meet the minimal informational requirements as outlined above, it will not be accepted for review.
(vi)
The City Engineer shall review the Construction Plans to insure compliance with this Ordinance, and other applicable City ordinances, codes, standards and specifications, and good engineering practices.
(vii)
Construction Plans may be rejected at any time subsequent to submittal and prior to final approval for failure to meet the minimum informational requirements of this Ordinance.
(e)
Approval.
Within thirty (30) days of the date on which all required information has been accepted for review, the City Engineer shall either approve or disapprove the Construction Plans. If the Construction Plans are disapproved, the City Engineer shall notify the applicant, in writing, of disapproval and indicate the requirements for bringing the Construction Plans into compliance. If Construction Plans are approved, then the City Engineer shall sign the cover sheet of the Construction Plans, returning one (1) signed copy to the applicant and retaining the other signed copy for City records.
(i)
Specific approvals required from other agencies shall be obtained by the owner.
(ii)
All improvements shown in the approved Construction Plans shall be constructed pursuant to and in compliance with the approved plans, except as otherwise specifically approved.
(iii)
It shall be the right of the applicant seeking Construction Plan approval, to appeal a decision of the City Engineer to the Commission and have a final decision rendered by the Commission.
(f)
Revision.
Where necessary, due to unforeseen circumstances, for corrections to be made to Construction Plans for which approval has already been obtained, the City Engineer shall have the authority to approve such corrections when, in his/her opinion, such changes are warranted and also in conformance with City requirements. Approval of such changes agreed to between the developer and City Engineer shall be noted by initialing and dating by both parties on the two (2) original signed copies of the Construction Plans.
(g)
Responsibility.
Notwithstanding the approval of any Construction Plans by the City Engineer or the Commission, the developer and the engineer that prepares and submits such plans and specifications shall be and remain responsible for the adequacy of the design of all such improvements; and nothing in this Ordinance shall be deemed or construed to relieve or waive the responsibility of the developer and his/her engineer for or with respect to any design, plans and specifications submitted.
(h)
Expiration.
Unless a longer time shall be specifically established as a condition of approval, Construction Plan approval shall expire twelve (12) months following the date on which such approval became effective, unless prior to the expiration, a Building Permit is issued and construction is commenced and diligently pursued toward completion.
(i)
Extension.
Construction Plan approval may be extended if the developer submits a written request for extension and continuance of the plan as approved by the City prior to expiration. Approval of any such extension request shall be automatic one (1) time only for a period of twelve (12) months.
(Ordinance 26-2001, sec. 60, adopted 10/9/01)
§ 61 Landscaping and Screening Requirements.
(a)
Purpose.
The purpose of this Section is, in conjunction with the other requirements of this Ordinance, to promote and support the orderly, safe, attractive and healthful development of land located within the community, and to promote the general welfare of the community by preserving and enhancing ecological, environmental and aesthetic qualities, through established requirements for the installation and maintenance of landscaping elements and other means of site improvements in developed properties. The following are additional factors considered in establishing the requirements of this Section:
(i)
Paved surfaces, automobiles, buildings and other improvements produce increases in air temperatures, a problem especially noticeable in this southern region, whereas plants have the opposite effect through transpiration and the creation of shade. Likewise, impervious surfaces created by development generate greater water runoff causing problems from contamination, erosion and flooding. Preserving and improving the natural environment and maintaining a working ecological balance are of increasing concern. The fact that the use of landscape elements can contribute to the processes of air purification, oxygen regeneration, water absorption, water purification, and noise, glare and heat abatement as well as the preservation of the community’s aesthetic qualities indicates that the use of landscape elements is of benefit to the health, welfare and general well being of the community and, therefore, it is proper that the use of such elements be required.
(ii)
The City may experience frequent droughts and periodic shortages of adequate water supply; therefore, it is the purpose of this Section to encourage the use of drought resistant vegetation that does not consume large quantities of water.
(b)
Installation and Plan.
All landscape materials shall be installed according to American Association of Nurserymen (AAN) standards. An approved landscape plan shall be required for all new development in any zoning district, save and except for the A, UE, R-1-1, R-1-2, R-1-A, M-1, M-2, or M-3 Districts.
(c)
Maintenance.
The owner of the landscaped property shall be responsible for the maintenance of all landscape areas. Said areas shall be maintained so as to present a healthy, neat and orderly appearance at all times and shall be kept free of refuse and debris. All planted areas shall be provided with a readily available water supply and watered as necessary to ensure continuous healthy growth and development. Maintenance shall include the replacement of all dead plant material if that material was used to meet the requirements of this Section.
(d)
Planting Criteria.
(i)
Trees.
Trees shall be a minimum of two (2) inches in caliper measured three (3) feet above finished grade immediately after planting. A list of recommended landscape trees may be obtained from the City. If the developer chooses to substitute trees not included on the recommended list, those trees shall have an average mature crown greater than fifteen (15) feet in diameter to meet the requirements of this Section. Trees having an average mature crown less than fifteen (15) feet in diameter may be substituted by grouping trees so as to create at maturity the equivalent of a fifteen foot (15) diameter crown if the drip line area is maintained. A minimum area three (3) feet in radius is required around the trunks of all existing and proposed trees.
(ii)
Shrubs and Ground Cover.
Shrubs, vines and ground cover planted pursuant to this section shall be good, healthy nursery stock. Shrubs must be, at a minimum, a one (1) gallon container size.
(iii)
Lawn Grass.
It is recommended that grass areas be planted with drought resistant species normally grown as permanent lawns, such as Bermuda, Zoysia, or Buffalo. Grass areas may be sodded, plugged, sprigged or seeded except that solid sod shall be used in areas subject to erosion.
(iv)
Synthetic Plants.
Synthetic or artificial lawns or plants shall not be used in lieu of plant requirements in this section.
(v)
Architectural Planters.
The use of architectural planters may be permitted in fulfillment of landscape requirements.
(vi)
Other.
Any approved decorative aggregate or pervious brick pavers shall qualify for landscaping credit if contained in planting areas, but no credit shall be given for concrete or other impervious surfaces.
(e)
Landscaping Requirements.
A minimum percentage of the total lot area shall be devoted to landscape development in accordance with the following schedule.
Zoning or Use | Percentage | |
|---|---|---|
(i) | Townhouse, Condominium and Multifamily | 20% |
(ii) | Residential (Excluding Townhouse, Condominium, Multifamily and Manufactured Home) | *Note |
(iii) | Office | 15% |
(iv) | General Retail and Commercial Uses | 5% |
(v) | Industrial - Light and Heavy | 10% |
(vi) | Agricultural | None |
*Note. Minimum landscape requirements for each lot on which a single-family, duplex, triplex or four-plex dwelling, or a manufactured home, is constructed or installed after the date of this ordinance shall be a minimum of two (2) two-inch trees, six (6) two-gallon shrubs and lawn grass from the front property line to the front two (2) corners of the structure. Residential structures on Reverse Frontage Lots shall also be required to screen the rear of the structure from the abutting highway, access road, or other public right-of-ways. |
(f)
Exceptions.
Exceptions to these provisions may be granted by the Commission and/or Council to require a lesser amount of landscaping if the aesthetic, buffering and environmental intent of this Ordinance is met, and the reduction of the landscape area results in the preservation of natural features having comparable value to the reduced landscape requirements.
(g)
Placement.
Landscaping shall be placed upon that portion of a tract or lot that is being developed. Fifty percent (50%) of the required landscaped area and required plantings shall be installed between the front property lines and the building being constructed. Undeveloped portions of a tract or lot shall not be considered landscaped, except as specifically approved by the Commission. Landscaping placed within public right-of-ways shall not be credited to the minimum landscape requirements by this Section.
(h)
Credit.
The Building Official and/or City Engineer shall, with respect to the issuance of a building permit or approval of a construction or site development plan, give a credit against the requirements of this Section for trees preserved on the site. Provided that, in order to reward the preservation of Significant Trees, a credit may be given for such preservation only if no more than fifty percent (50%) of the Critical Root Zone is disturbed or distressed with impervious cover; and provided further that the remaining Critical Root Zone must consist of at least one hundred (100) square feet.
(i)
Additional Required Plantings.
For every six hundred (600) square feet of landscape area required by this Section, two (2) trees and four (4) shrubs shall be planted. To reduce the thermal impact of unshaded parking lots, additional trees shall be planted, if necessary, so that no parking space is more than 50 feet away from the trunk of a tree, unless otherwise approved by the Commission. This subsection (i) shall not apply to any property included in any of the following zoning categories: A, UE, R-1, R-1-2, R-1-A, M-1, M-2, or M-3.
(j)
Replacement of Required Trees.
Upon the death or removal of a tree planted pursuant to the terms of this Section, a replacement tree of equal size and type shall be required to be planted. A smaller tree that will have a mature crown similar to the tree removed may be substituted if the planting area or pervious cover provided for the larger tree in this Section is retained.
(k)
Screening.
The following requirements shall be in addition to the foregoing landscaping and planting requirements.
(i)
All off-street parking, loading spaces and docks, outside storage areas, satellite dishes larger than 18 inches in diameter, antennas, mechanical equipment, and the rear of structures on reverse frontage lots, must be screened from view from the street or public right-of-ways.
(ii)
Approved screening techniques include privacy fences, evergreen vegetative screens, landscape berms, existing vegetation or any combination thereof.
(iii)
Privacy Fences.
(A)
All fences required by this subsection and along a common property boundary shall be six (6) feet in height.
(B)
Fences up to eight (8) feet in height, but not less than six (6) feet, shall be allowed for impeding access to hazardous facilities including, but not limited to, electrical substations, swimming pools and chemical or equipment storage yards, where the slope of a line drawn perpendicular to the fence line averages twenty percent (20%) or more on either side of the fence over a distance no less than fifteen (15) feet, or where the fence forms a continuous perimeter around a subdivision and the design of said perimeter fence is approved by the Commission.
(C)
Fences less than or equal to three (3) feet in height shall be allowed in front yards.
(D)
No fence or other structure more than thirty percent (30%) solid or more than three (3) feet high shall be located within twenty-five (25) feet of the intersection of any rights-of-way.
(E)
All fences shall be constructed to maintain structural integrity against natural forces such as wind, rain and temperature variations.
(F)
The finished side of all fences built to comply with these regulations shall face away from the screened object.
(iv)
Evergreen Vegetative Screens.
Evergreen plant materials shall be shrubs, at least thirty (30) inches in height and at a minimum spacing of 48 inches at the time of installation. Shrubs may be used in combination with landscape trees to fulfill the requirements of this Section.
(v)
Landscape Berms.
Landscape berms may be used in combination with shrubs and trees to fulfill the screening requirements of this Section if the berm is at least three (3) feet in height and has a maximum side slope of four (4) feet of horizontal run for every one (1) foot in vertical rise.
(vi)
Native Vegetation.
Existing vegetation, demonstrating significant visual screening capabilities and as approved by the Commission may fulfill the requirements of this Section.
(Ordinance 26-2001, sec. 61, adopted 10/9/01)
§ 62 (Reserved)
Editor’s note–Section 62, Sign Requirements, which derived from Ordinance 26-2001 adopted 10/9/01, was repealed by Ord. 215-062315. The sign regulations are located in chapter 3 of the Code of Ordinances.
§ 63 Conditional Use Permits.
(a)
Purpose.
The City Council may by ordinance, adopted by an [sic] four (4) affirmative votes after receiving the recommendation of the Commission, grant a conditional use permit in compliance with this Section for the conditional uses as listed in (b) below. The City Council may impose appropriate conditions and safeguards, including a specified period of time for the permit, to protect the Comprehensive Plan and to conserve and protect property and property values in the neighborhood.
(b)
Authorized Conditional Uses.
The following listed conditional uses, and none other, may be authorized subject to the terms of this subsection and compliance with all conditional terms, regulations and requirements established by the City Council.
(i)
Airport, landing field, landing strip or heliport for aircraft; Municipal service facilities and buildings.
(ii)
Amusement park, but not within three hundred (300) feet of any Residential District.
(iii)
Circus or carnival grounds, but not within three hundred (300) feet of any Residential District.
(iv)
Commercial, recreational or amusement development for temporary or seasonal periods.
(v)
Hospital, clinic or institution, provided that any hospital or institution permitted in any Residential District shall be located on a site of not less than five (5) acres, shall not occupy more than ten percent (10%) of the total lot area and shall be set back from all property lines at least two (2) feet for each foot of building height.
(vi)
Office building of a civic, religious or charitable organization, conducting activities primarily by mail and not handling merchandise or rendering services on the premises, but only within an R-4 District.
(vii)
Private operated community building or recreation field.
(viii)
Radio or television broadcasting tower or station.
(ix)
Churches.
(x)
Cemeteries.
(xi)
Schools - Public and Denominational.
(xii)
Manufactured Homes - In the limited areas as specifically authorized by this Ordinance.
(xiii)
Alcoholic Beverages–On-Premises and Alcoholic Beverages–Mixed Drink for those specific uses and in the specific zoning districts as provided by this Ordinance.
(xiv)
Manufacture of Alcoholic Beverages associated with a tasting room - In areas zoned Commercial, the manufacture of alcoholic beverages in a facility in which at least 51% of the covered floor space is used as a tasting room.
(xv)
Sale of cigarettes, e-cigarettes, tobacco products, and consumable hemp products by a retailer in areas zoned Commercial - District "C," Light Industrial - District "LI," and Heavy Industrial - District "HI."
(xvi)
Cosmetic tattoo parlors in areas zoned Commercial - District "LI," and Heavy Industrial - District "HI."
(xvii)
Body piercing studios in areas zoned Commercial - District "LI," and Heavy Industrial - District "HI."
(c)
Procedure.
Before authorization of any of the above conditional uses, public notice shall be given and public hearings shall be held as provided in Chapt. 211, Tex. Loc. Gov’t. Code; provided that a conditional use permit for a period not to exceed seven (7) calendar days may be given for a use set forth in (b)(iii) or (b)(iv) above after a public hearing is held by the City Council after having received a report and recommendation from the Commission concerning the effect of the proposed use on the adjacent and neighboring properties and neighborhoods.
(Ordinance 26-2001, sec. 63, adopted 10/9/01; Ordinance 26-091118B adopted 9/11/18; Ordinance 26-031224 adopted 3/12/2024; Ordinance 26-031224B adopted 3/12/2024)
§ 64 Nonconforming Uses.
(a)
General Policy.
The general public, the City Council and the Commission are directed to take note that nonconformities in the use and development of land and buildings are to be avoided, or eliminated where now existing, whenever and wherever possible, except:
(b)
Nonconforming Structures.
Where a lawful structure exists on the effective date of the adoption or amendment of this Section, that could not be built under the terms of this Section by reason of restrictions on permitted use, area, lot coverage, height, years, its locations on the lot, or other requirements concerning the structure, such structure may be continued as long as it remains otherwise lawful, subject to the following provisions:
(i)
No such nonconforming structure may be enlarged or altered in a way which increases its structural nonconformity, but any structure or portion thereof may be altered to decrease its structural nonconformity.
(ii)
Should such nonconforming structure or nonconforming portions of a structure be damaged by any means to an extent of more than fifty (50) percent of its replacement cost at the time of destruction, it shall not be reconstructed except in conformity with this ordinance.
(iii)
Should such structure be moved for any reason for any distance whatsoever, it shall thereafter conform to the regulations of the district in which it is located after it is moved.
(c)
Nonconforming Uses.
A nonconforming use may be continued as long as it remains otherwise lawful, subject to the following provisions:
(i)
No existing structure devoted to a nonconforming use shall be enlarged, extended, constructed or reconstructed.
(ii)
The use of the structure shall only be changed to a use permitted in the district in which it is located.
(iii)
A nonconforming use that has been discontinued may be resumed only if there has been no other use of the premises or structure since the nonconforming use was discontinued, and such use was not discontinued for a period of ninety (90) days or more.
(iv)
Any nonconforming use may be extended throughout any parts of a building which were manifestly arranged or designed for such use at the time of adoption or amendment of this ordinance, but no such use shall be extended to any land outside such building.
(v)
Removal or destruction of a structure containing a nonconforming use shall eliminate the nonconforming use status. Destruction for the purpose of this subsection is defined as damage equal to more than fifty (50) percent of the replacement cost of the structure.
(vi)
A nonconforming use shall terminate upon any sale or conveyance of the property.
(d)
Repairs and Maintenance.
On any nonconforming structure, or nonconforming portion of a structure, containing a nonconforming use, repairs and maintenance shall be performed to maintain the structure in compliance with the electrical, plumbing and building codes; provided that such repairs and maintenance shall be subject to the following conditions and limitations:
(i)
No work may be done in any period of twelve (12) consecutive months on ordinary repairs, or on repair or replacement of non-load-bearing walls, fixtures, wiring or plumbing, to an extent exceeding twenty-five (25) percent of the current replacement cost of such structure or nonconforming portion of such structure.
(ii)
If fifty (50) percent or more of the nonconforming structure containing a nonconforming use becomes physically unsafe or unlawful due to lack of repairs or maintenance, and is declared by a duly authorized official to be unsafe or unlawful by reason of physical condition, it shall not thereafter be restored, repaired or rebuilt except in conformity with the regulations of the district in which it is located.
(Ordinance 26-2001, sec. 64, adopted 10/9/01)
§ 65 Sexually Oriented Businesses.
(a)
Purpose and Intent.
It is the purpose of this Section of the zoning ordinance to regulate sexually oriented businesses to promote the health, safety, morals, and general welfare of the citizens of the City, and to establish reasonable and uniform regulations to prevent the deleterious location and concentration of sexually oriented businesses within the city. The provisions of this portion of the ordinance have neither the purpose or effect of imposing a limitation or restriction on the content of any communicative materials, including sexually oriented materials. Similarly, it is not the intent nor effect of this ordinance to restrict or deny access by adults to distributors and exhibitors of sexually oriented entertainment to their intended market. Neither is it the intent nor effect of this ordinance to condone or legitimize the distribution of obscene materials.
(b)
Definitions.
The following words, terms and phrases, when used in this section, shall have the meanings ascribed to them in this subsection, except where the context clearly indicates a different meaning.
(i)
“Adult Arcade” means any place to which the public is permitted or invited wherein coin-operated or slug-operated or electronically, electrically, or mechanically controlled still or motion picture machines, projectors, or other image-producing devices are maintained to show images to five or fewer persons per machine at any one time, and where the images so displayed are distinguished or characterized by the depicting or describing of specified sexual activities or specified anatomical areas.
(ii)
“Adult Bookstore” or “Adult Video Store” means a commercial establishment which, as one of its principal business purposes, offers for sale or rental for any form of consideration any one or more of the following:
(A)
books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, videocassettes or video reproductions, slides, or other visual representations which depict or describe specified sexual activities or specified anatomical areas; or
(B)
instruments, devices, or paraphernalia which are designed for use in connection with specified sexual activities.
(C)
a commercial establishment may have other principal business purposes that do not involve the offering for sale or rental of material depicting or describing “specified sexual activities” or “specified anatomical areas” and still be categorized as an Adult Bookstore or Adult Video Store. Such other business purposes will not serve to exempt such commercial establishments from being categorized as an Adult Bookstore or Adult Video Store so long as either:
(1)
two percent (2%) or more of its gross revenue is derived from the sale or rental of the specified materials which depict or describe specified sexual activities or specified anatomical areas; or
(2)
two percent (2%) or more of its inventory consists of the specified materials which depict or describe specified sexual activities or specified anatomical areas.
(iii)
“Adult Cabaret” means a nightclub, bar, restaurant, or similar commercial establishment which regularly features:
(A)
persons who appear in a state of nudity; or
(B)
live performances which are characterized by the exposure of specified anatomical areas or by specified sexual activities; or
(C)
films, motion pictures, videocassettes, slides, or other photographic reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas.
(iv)
“Adult Motel” means a hotel, motel or similar commercial establishment which:
(A)
offers accommodations to the public for any form of consideration; provides patrons with closed-circuit television transmissions, films, motion pictures, videocassettes, slides, or other photographic reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas; and has a sign visible from the public right-of-way which advertises the availability of this adult type of photographic reproductions; or
(B)
offers a sleeping room for rent for a period of time that is less than ten (10) hours; or
(C)
allows a tenant or occupant of a sleeping room to sub-rent the room for a period of time that is less than ten (10) hours.
(v)
“Adult Motion Picture Theater” means a commercial establishment where, for any form of consideration, films, motion pictures, videocassettes, slides, or similar photographic reproductions are regularly shown which are characterized by the depiction or description of specified sexual activities or specified anatomical areas.
(vi)
“Adult Theater” means a theater, concert hall, auditorium, or similar commercial establishment which regularly features persons who appear in a state of nudity or live performances which are characterized by the exposure of specified anatomical areas or by specified sexual activities.
(vii)
“Escort” means a person who, for consideration, agrees or offers to act as a companion, guide, or date for another person, or who agrees or offers to privately model lingerie or to privately perform a striptease for another person.
(viii)
“Escort Agency” means a person or business association who furnishes, offers to furnish, or advertises to furnish escorts as one of its primary business purposes for a fee, tip, or other consideration.
(ix)
“Establishment” means and includes any of the following;
(A)
the opening or commencement of any sexually oriented business as a new business;
(B)
the conversion of an existing business, whether or not a sexually oriented business, to any sexually oriented business;
(C)
the addition of any sexually oriented business to any other existing sexually oriented business; or
(D)
the relocation of any sexually oriented business.
(x)
“Permittee” means a person in whose name a conditional use permit to operate a sexually oriented business has been issued and the person who owns the building and/or land on which the business is located, as well as the individual listed as an applicant on the application for a permit.
(xi)
“Nude Model Studio” means any place where a person who appears in a state of nudity or displays specified anatomical areas is provided to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons who pay money or any form of consideration.
(xii)
“Nudity” or a “State of Nudity” means the appearance of a human bare buttock, anus, male genitals, female genitals, or female breast.
(xiii)
“Person” means an individual, proprietorship, partnership, corporation, association, or other legal entity.
(xiv)
“Semi-Nude” means a state of dress in which clothing covers no more than the genitals, pubic region, and areolae of the female breast, as well as portions of the body covered by supporting straps or devices.
(xv)
“Sexual Encounter Center” means a business or commercial enterprise that, as one of its primary business purposes, offers any of the following for consideration:
(xvi)
“Sexually Oriented Business” means an adult arcade, adult bookstore or adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, escort agency, nude model studio, or sexual encounter center.
(xvii)
“Specified Anatomical Areas” means the male genitals in a state of sexual arousal and/or the vulva or more intimate parts of the female genitals.
(xviii)
“Specified Sexual Activities” means and includes any of the following:
(A)
the fondling or other erotic touching of human genitals, pubic region, buttocks, anus, or female breasts;
(B)
sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation, or sodomy;
(C)
masturbation, actual or simulated; or
(D)
excretory functions as part of or in connection with any of the activities set forth in (A) through (C) above.
(xix)
“Substantial Enlargement” of a sexually oriented business means the increase in floor area occupied by the business by more than twenty-five (25%) percent, as the floor area existed on the effective date of this Ordinance, or under a certificate of occupancy therefor.
(xx)
“Transfer of Ownership or Control” of a sexually oriented business means and includes any of the following:
(A)
the sale, lease or sublease of the business;
(B)
the transfer of securities which constitute a controlling interest in the business, whether by sale, exchange, or similar means; or
(C)
the establishment of a trust, gift, or other similar legal device which transfers the ownership or control of the business, except for transfer by bequest or other operation of law upon the death of the person possessing the ownership or control.
(c)
Classification.
Sexually oriented businesses are classified as follows:
(d)
Location.
This Ordinance allows the opportunity for consideration of conditional use permits to be issued for sexually oriented businesses in Light Industrial (LI) and Heavy Industrial (HI) zoning districts only.
(i)
The following uses may be permitted within the City by conditional use permit only in the LI and HI zoning districts.
(ii)
No use listed in subsection (d)(i) above shall be established within one thousand (1,000) feet of any of the following uses in existence prior to the beginning of such business:
(A)
a church, chapel, or other regular place of religious worship;
(B)
a public or private elementary, secondary school or institute of higher learning;
(C)
a boundary of any residentially zoned district;
(D)
a public park or playground;
(E)
the property line of a lot used for residential purposes; or
(F)
within one thousand (1,000) feet of another sexually oriented business.
(iii)
For the purpose of this Section, measurement shall be made in a straight line, without regard to intervening structures or objects, from the nearest portion of the building or structure used as a part of the premises where a sexually oriented business is conducted, to the nearest property line of the premises of a church, public or private elementary or secondary school, institute of higher learning, nearest boundary of a public park or playground or residential lot; or from the closest exterior wall of the structure in which the business is proposed to be located to the nearest exterior wall of any other sexually oriented business.
(e)
Sexually Explicit Films and Videos.
(i)
A person who operates or causes to be operated a sexually oriented business, other than an adult motel, which exhibits on the premises in a viewing room of less than one hundred fifty (150) square feet of floor space, a film, videocassette, or other video reproduction which depicts specified sexual activities or specified anatomical areas, shall comply with the following requirements:
(A)
The application for a conditional use permit for a sexually oriented business shall be accompanied by a diagram of the premises showing a plan thereof specifying the location of one or more manager’s stations and the location of all overhead lighting fixtures and designating any portion of the premises in which patrons will not be permitted. A manager’s station may not exceed thirty-two (32) square feet of floor area. The diagram shall also designate the place at which the permit will be conspicuously posted, if granted. A professionally prepared diagram in the nature of an engineer’s or architect’s blueprint shall not be required; however, each diagram should be oriented to the north or to some designated street or object and should be drawn to a designated scale or with marked dimensions sufficient to show the various internal dimensions of all areas of the interior of the premises to an accuracy of plus or minus one (1) foot. The Building Official may waive the foregoing diagram for renewal applications if the applicant adopts a diagram that was previously submitted and certifies that the configuration of the premises is correct and has not been altered since it was prepared.
(B)
The application shall be sworn to be true and correct by the applicant.
(C)
No alteration in the configuration or location of a manager’s station may be made without the prior approval of an amendment to the conditional use permit.
(D)
It is the duty of the owners and operator of the premises to ensure that at least one employee is on duty and situated in each manager’s station at all times that any patron is present inside the premise.
(E)
The interior of the premises shall be configured in such a manner that there is an unobstructed view from a manager’s station of every area of the premises to which any patron is permitted access for any purpose excluding restrooms. Restrooms may not contain video reproduction equipment. If the premises has two or more manager’s stations designated, then the interior of the premises shall be configured in such a manner that there is an unobstructed view of each area of the premises to which any patron is permitted access for any purpose from at least one of the manager’s stations. The view required in this subsection must be by direct line of sight from the manager’s station.
(F)
It shall be the duty of the owners and operator, and it shall also be the duty of any agents and employees present in the premises to ensure that the view area specified in the above subsection (E) remains unobstructed by any doors, walls, merchandise, display racks or other materials at all times and to ensure that no patron is permitted access to any area of the premises which has been designated as an area in which patrons will not be permitted in the application filed pursuant to Subsection (A) of this subsection.
(G)
No viewing room may be occupied by more than one person at any time.
(H)
The premise shall be equipped with overhead lighting fixtures of sufficient intensity to illuminate every place to which patrons are permitted access at an illumination of not less than one (1.0) footcandle as measured at the floor level.
(I)
It shall be the duty of the owners and operator and it shall also be the duty of any agents and employees present in the premises to ensure that the illumination described above is maintained at all times that any patron is present in the premises.
(ii)
A person having a duty under subsections (A) through (I) of subsection (i) above commits a misdemeanor if he or she knowingly fails to fulfill that duty.
(f)
Exemptions.
(i)
It is a defense to prosecution under this Section that a person appearing in a state of nudity did so in a modeling class operated:
(A)
by a proprietary school, licensed by the State of Texas; a college, junior college, or university supported entirely or partly by taxation;
(B)
by a private college or university which maintains and operates educational programs in which credits are transferable to a college, junior college, or university supported entirely or partly by taxation; or
(C)
in a structure:
(1)
which has no sign visible from the exterior of the structure and no other advertising that indicates a nude person is available for viewing; and
(2)
where, in order to participate in a class a student must enroll at least three (3) days in advance of the class; and
(3)
where no more than one nude model is on the premises at any one time.
(g)
Specific Violations.
A person commits a misdemeanor if he or she:
(i)
operates or causes to be operated a sexually oriented business without a conditional use permit. All sexually oriented businesses shall be located within the LI or HI zoning districts.
(ii)
operates or causes to be operated a sexually oriented business within one thousand (1,000) feet of any of the following uses in existence prior to the beginning of such business:
(iii)
causes or permits the operation, establishment, substantial enlargement, or transfer of ownership or control of a sexually oriented business within one thousand (1,000) feet of another sexually oriented business.
(iv)
causes or permits the operation, establishment, or maintenance of more than one sexually oriented business in the same building, structure, or portion thereof, or the increase of floor area of any sexually oriented business in any building, structure, or portion thereof containing another sexually oriented business.
(v)
For the purpose of this ordinance, measurement shall be made in a straight line, without regard to intervening structures or objects, from the nearest portion of the building or structure in which any, or any part of any, sexually oriented business is conducted, to the nearest property line of the premises of a church, public or private elementary or secondary school, institute of higher learning, the nearest boundary of a public park or playground, or residential lot.
For purposes of Subsection (d) [(g)(iii)] of this section the distance between any two sexually oriented businesses shall be measured in a straight line, without regard to intervening structures or objects, from the closest exterior wall of the structure in which each business is located.
(h)
Nonconforming Uses.
(i)
Any sexually oriented business lawfully operating on the effective date of this ordinance that is in violation of this Section shall be deemed a nonconforming use. The nonconforming use will be permitted to continue for a period not to exceed two years, unless sooner terminated for any reason or voluntarily discontinued for a period of thirty (30) days or more. Such nonconforming uses shall not be increased, enlarged, extended or altered except that the use may be changed to a conforming use. If two or more sexually oriented businesses are within 1,000 feet of one another and otherwise in a permissible location, the sexually oriented business which was first established and continually operating at a particular location is the conforming use and the later-established business is nonconforming.
(ii)
A sexually oriented business lawfully operating as a conforming use is not rendered a nonconforming use by the location, subsequent to the grant of a conditional use permit for a sexually oriented business, of a church, public or private elementary or secondary school, institute of higher learning, public park or playground, or a residential lot within one thousand (1,000) feet of the sexually oriented business.
This provision applies only to the renewal of a valid permit, and does not apply when an application for a permit is submitted after a permit and/or license has expired or has been revoked.
(Ordinance 26-2001, sec. 65, adopted 10/9/01)