It is the intent of this zoning code to provide for the establishment of zoning districts within which the proper use of land and natural resources shall be encouraged and regulated; to establish minimum standards for open space, building and population density; to regulate the occupancy and use of dwellings, buildings and structures, that may hereafter be erected, altered, or moved; to provide for the administration hereof; to provide for a method of amending; to provide for conflicts with other acts, codes, or regulations; to provide for the collection of fees for the furtherance of the purpose of this Code; to provide for petitions and public hearings, to provide for appeals; and to provide for penalties for the violation of this Code.

(Code 1988, § 9-1; Ord. of 5-1-1995; Ord. of 7-13-1998; Ord. of 11-9-1999; Ord. of 2-7-2000; Ord. of 11-6-2000; Ord. of 12-10-2007; Ord. of 1-28-2008)

This chapter shall be known and may be cited as "The Zoning Code of Dayton."

(Code 1988, § 9-2; Ord. of 5-1-1995; Ord. of 7-13-1998; Ord. of 11-9-1999; Ord. of 2-7-2000; Ord. of 11-6-2000; Ord. of 12-10-2007; Ord. of 1-28-2008)

It is the purpose of this zoning code to promote the safety, health, morals, convenience, and general welfare; to encourage the use of lands and natural resources in the town in accordance with their character, adaptability, and suitability for particular purposes; to preserve social and economic stability, property values, and the general character and trend of community development; to prevent excessive concentration of population; to lessen congestion on the public streets and highways; to facilitate adequate provision of streets and highways, sewerage and drainage, water supply and distribution, educational, and other public resources, by establishing herein standards for community development in accordance with these objectives and by providing for the enforcement of such standards.

(Code 1988, § 9-3; Ord. of 5-1-1995; Ord. of 7-13-1998; Ord. of 11-9-1999; Ord. of 2-7-2000; Ord. of 11-6-2000; Ord. of 12-10-2007; Ord. of 1-28-2008)

The regulations, restrictions, boundaries, and options set forth in this Code may be amended, supplemented, revised, or repealed from time to time as conditions warrant, subject to the following conditions:

(1)

Application. An application for a proposed amendment shall be filed with the administrator on behalf of the council. An application may be instituted by a property owner (with respect to their own property) or their designated representative or upon motion of the planning commission or by resolution of the council. The application shall contain such information and sketches as the administrator determines are required to fully describe the proposed change; no application shall be deemed complete until all such materials have been supplied.

(2)

Public hearing. Public hearings shall be held as required by state law.

(3)

Report to the town council. The planning commission shall make a recommendation to the town council upon all such applications and no amendment shall be passed except by a majority vote of the members of the council present and voting.

(Code 1988, § 9-15; Ord. of 5-1-1995; Ord. of 9-16-1996; Ord. of 7-13-1998; Ord. of 11-9-1999; Ord. of 2-7-2000; Ord. of 11-6-2000; Ord. of 12-10-2007; Ord. of 1-28-2008; Ord. of 10-13-2020)

Fees shall be established by the town council.

(Code 1988, § 9-16; Ord. of 5-1-1995; Ord. of 7-13-1998; Ord. of 11-9-1999; Ord. of 2-7-2000; Ord. of 11-6-2000; Ord. of 12-10-2007; Ord. of 1-28-2008; Ord. of 10-13-2020)

(a)

Civil penalties. Except as provided in subsection (b) of this section, all violations of this chapter shall carry civil penalties as prescribed by this subsection.

(1)

Schedule of penalties.

a.

For a first summons regarding a violation, the civil penalty shall be $200.00 if the town provided notice of the violation at least three days prior to issuance of the summons. If the town did not provide notice, the penalty shall be $25.00.

b.

For each subsequent summons, the civil penalty shall be $500.00.

c.

Each day during which the violation is found to have existed shall constitute a separate offense. However, specified violations arising from the same operative set of facts shall not be charged more frequently than once in any ten-day period, and a series of specified violations arising from the same operative set of facts shall not result in civil penalties which exceed a total of $5,000.00.

(2)

Process.

a.

The zoning administrator may issue a civil summons for any violation within this subsection (a).

b.

Any person summoned for such violation may make an appearance in person or in writing by mail to the town treasurer prior to the date fixed for trial in court.

c.

Any person so appearing may enter a waiver of trial, admit liability, and pay the civil penalty established for the offense charged. Such persons shall be informed of their right to stand trial and that a signature to an admission of liability will have the same force and effect as a judgment of court.

d.

If a person charged does not elect to enter a waiver of trial and admit liability, the violation shall be tried in the general district court in the same manner and with the same right of appeal as provided by law.

e.

In any trial for a scheduled violation authorized by this section, it shall be the town's burden to show the liability of the violator by a preponderance of the evidence.

f.

If the violation remains uncorrected at the time of the admission of liability or finding of liability, the court may order the violator to abate or remedy the violation in order to comply with the zoning ordinance. Except as otherwise provided by the court for good cause shown, any such violator shall abate or remedy the violation within a period of time as determined by the court, but not later than six months of the date of admission of liability or finding of liability. Each day during which the violation continues after the court-ordered abatement period has ended shall constitute a separate offense. An admission of liability or finding of liability shall not be a criminal conviction for any purpose.

(3)

General notice and enforcement action.

a.

The term "notice," for purposes of this section, means a written notice hand-delivered to a person found in charge of the site or, if no such person is found, posted at the site, and mailed to the address of the landowner at the mailing address listed with the county commissioner of the revenue.

b.

The existence of a civil penalty under this subsection (a) shall not operate to preclude other enforcement actions by the town.

c.

The penalties provided by this subsection (a) shall be in lieu of criminal sanctions, and except for any violation resulting in injury to persons, such designation shall preclude the prosecution of a violation as a criminal misdemeanor; provided, however, that when such civil penalties total $5,000.00 or more, the violation may be prosecuted as a criminal misdemeanor.

(b)

Criminal penalties. Violations of this chapter related to activities related to land development activities or the posting of signs on public property or public rights-of-way, shall be punishable as provided in this subsection (b). Such violation shall be a misdemeanor punishable by a fine of not less than $10.00 nor more than $1,000.00. If the violation is uncorrected at the time of the conviction, the court shall order the violator to abate or remedy the violation in compliance with the zoning ordinance, within a time period established by the court. Failure to remove or abate a zoning violation within the specified time period shall constitute a separate misdemeanor offense punishable by a fine of not more than $1,000.00; and any such failure during a succeeding ten-day period shall constitute a separate misdemeanor offense punishable by a fine of not less than $100.00 nor more than $1,500.00; and any such failure during any succeeding ten-day period shall constitute a separate misdemeanor offense for each ten-day period punishable by a fine of not more than $2,000.00.

(Code 1988, § 9-17; Ord. of 5-1-1995; Ord. of 7-13-1998; Ord. of 11-9-1999; Ord. of 2-7-2000; Ord. of 11-6-2000; Ord. of 12-10-2007; Ord. of 1-28-2008; Ord. of 10-13-2020)

Should any section, clause or provision of this Code be declared by the court to be unconstitutional or invalid, this judgment shall not affect the validity of the Code as a whole or any part thereof than the part judged invalid.

(Code 1988, § 9-18; Ord. of 5-1-1995; Ord. of 7-13-1998; Ord. of 11-9-1999; Ord. of 2-7-2000; Ord. of 11-6-2000; Ord. of 12-10-2007; Ord. of 1-28-2008; Ord. of 10-13-2020)

In the interpretation and application of the provisions of this Code, this chapter shall be held to be minimum requirements, adopted for the promotion of the public health, morals, safety, and the general welfare. Whenever the requirements of this Code are at variance with the requirements of other lawfully adopted rules, regulations or codes, the most restrictive, or that imposing the higher standards, shall govern.

(Code 1988, § 9-19; Ord. of 5-1-1995; Ord. of 7-13-1998; Ord. of 11-9-1999; Ord. of 2-7-2000; Ord. of 11-6-2000; Ord. of 12-10-2007; Ord. of 1-28-2008; Ord. of 10-13-2020)

The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

Acreage means a parcel of land, regardless of area, described by metes and bounds which is not a numbered lot on any recorded subdivision plat.

Administrator means the official charged with the enforcement of this chapter. The administrator may be any appointed or elected official who is by formal resolution designated to the position by the town council. The administrator may serve with or without compensation as determined by the town council.

Agriculture means the tilling of the soil, the raising of crops, and horticulture, but does not include fruit packing plants or greenhouses. The term "agriculture" also includes the production, for commercial purposes, of animals such as cattle, sheep, goats, llamas, ducks, geese, and horses. Nevertheless, the term "agriculture" does not include poultry houses or hog farms.

Alteration means any change in the total floor area, use, adaptability, or external appearance of any existing structure.

Amusement center means any building or portion of a building in which four or more video games or other amusement machines or devices are operated for money or other consideration.

Automobile graveyard means any lot or place which is exposed to the weather upon which more than five motor vehicles of any kind, incapable of being operated, and which it would not be economically practical to make operative, are placed, located or found.

Basement means a story having part but not more than one-half of its height below grade. A basement shall be counted as a story for the purpose of height regulations, if it is used for business purposes, or for dwelling purposes by other than a janitor employed on the premises.

Bed and breakfast means a structure in which guests are provided with sleeping quarters and breakfast for a fee. The proprietor shall reside on the same lot as the bed and breakfast. The bed and breakfast shall employ no more than two persons who do not reside on the same lot as the bed and breakfast. Guests are provided with morning meals (but not other meals), and may not be lodged for more than 14 consecutive days. A bed and breakfast shall not be considered a home occupation.

Boardinghouse means a building where, for compensation, lodging and meals are provided for at least five and up to 14 persons.

Building means any structure having a roof supported by columns or walls, for the housing or enclosure of persons, animals, or chattels.

Building, accessory, means a subordinate structure customarily incidental to and located upon the same lot occupied by the main structure. No such accessory structure shall be used for housekeeping purposes.

Building, height of, means the vertical distance measured from the level of the curb or the established curb grade opposite the middle of the front of the structure to the highest point of the roof, if a flat roof; to the deck line of a mansard roof; or to the mean height level between the eaves and ridge of a gable or gambrel roof. For buildings set back from the street line, the height shall be measured from the average elevation of the ground surface along the front of the building.

Building, main, means the principal structure or one of the principal buildings on a lot, or the building or one of the principal buildings housing the principal use on the lot.

Cellar means a story having more than one-half of its height below grade and which may not be occupied for dwelling purposes.

Child care center means any facility operated for the purpose of providing care, protection and guidance for a fee to two or more children during a part of the day only.

Dairy means a commercial establishment for the manufacture and sale of dairy products.

Dwelling means any structure which is designated for use for residential purposes except hotels, boardinghouses, lodginghouses, tourist cabins, apartments, and automobile trailers.

Dwelling, multiple-family, means a structure arranged or designed to be occupied by more than one family.

Dwelling, single-family, means a structure arranged or designed to be occupied by one family, the structure having only one dwelling unit.

Dwelling, two-family, means a structure arranged or designed to be occupied by two families, the structure having only two dwelling units.

Dwelling unit means one or more rooms in a dwelling designed for living or sleeping purposes, and having at least one kitchen.

Family means one or more persons occupying a premises and living in a single dwelling unit as distinguished from an unrelated group occupying a boardinghouse, lodginghouse, tourist home or hotel.

Front means an open space on the same lot as a building between the front line of the building (excluding steps) and the front lot or street line, and extending across the full width of the lot.

Garage, public, means a building or portion thereof, other than a private garage, designed or used for servicing, repairing, equipping, renting, selling, or storing motor-driven vehicles.

Guest room means a room which is intended, arranged, or designed to be occupied, or which is occupied, by one or more guests paying direct compensation therefor, but in which no provision is made for cooking. The term "guest room" does not include dormitories.

Home care facility means a dwelling in which children are cared for or otherwise supervised for a fee. The proprietor must reside in the dwelling and must hire no employees to assist in the care and/or supervision of the children. At any one time, a home care facility may not care for and/or supervise more than five minor children not related to the proprietor by blood or marriage, nor may it care for and/or supervise more than seven minor children in total. No children may be cared for and/or supervised between the hours of 11:00 p.m. and 6:00 a.m. The facility shall bear no signs indicating the presence of a home care facility.

Home garden means a garden in a residential district for the production of vegetables, fruits and flowers generally for use and/or consumption by the occupants of the premises.

Home occupation, level one, means any commercial endeavor which is undertaken in a structure used as a residence and meeting the following criteria:

(1)

The person conducting the home occupation must be a resident of the dwelling in which the home occupation is to be located.

(2)

The home occupation shall be operated only by persons residing in the dwelling, with no other employees permitted.

(3)

The home occupation shall be clearly secondary to the use of the dwelling as a residence and shall not occupy more than 25 percent of the living area of the dwelling.

(4)

The home occupation shall not generate significantly more traffic than is typically generated by residential uses in the neighborhood.

(5)

The exterior of the dwelling shall show no evidence of the attendant home occupation. There shall be no outside display of products, goods, or commodities in conjunction with the home occupation. The use of a sign shall also be prohibited.

Home occupation, level two, means a commercial endeavor undertaken in a structure used as a residence which does not qualify as a level one home occupation but does meet the following criteria:

(1)

The proprietor of a home occupation must reside in the dwelling, and either have a direct or indirect, legal, equitable, or beneficial interest in the dwelling or have the written approval of a person with such an interest for the conduct of the home occupation.

(2)

The home occupation shall be operated by persons residing in the dwelling but may employ up to two other persons.

(3)

The home occupation shall not occupy more than 25 percent of the living area of the dwelling.

(4)

Except for the daily commute of employees, the home occupation shall not generate significantly more traffic than is typically generated by residential uses in the neighborhood.

(5)

The exterior of the dwelling shall show no evidence of the attendant home occupation. There shall be no outside display of products, goods or commodities in conjunction with the home occupation. The use of a sign shall also be prohibited.

Hospital means an institution rendering medical, surgical, obstetrical, or convalescent care, including nursing homes, homes for the aged and sanatoriums, but in all cases excluding institutions primarily for mental patients, epileptics, alcoholics, or drug addicts.

Hospital, special care, means an institution rendering care primarily for mental patients, epileptics, alcoholics, or drug addicts.

Hotel means a building designed or occupied as the more or less temporary abiding place for 14 or more individuals who are, for compensation, lodged with or without meals, and in which provision is not generally made for cooking in individual rooms or suites.

Kennel means a place prepared to house, board, breed, handle or otherwise keep or care for dogs for sale or in return for compensation.

Livestock market means a commercial establishment wherein livestock is collected for sale and auctioned off.

Lot means a parcel of land occupied or to be occupied by a main structure or group of main structures, either shown on a plat of record or considered as a unit of property and described by metes and bounds.

Lot, corner, means a lot abutting on two or more streets at their intersection. Of the two sides of a corner lot the front shall be deemed to be the shortest of the sides fronting on streets.

Lot, depth of, means the distance between the front and rear lot lines.

Lot, interior, means any lot other than a corner lot.

Lot, width of, means the distance between side lot lines.

Lot of record means a lot which has been recorded in the clerk's office of the circuit court of the county.

Manufacturer and/or manufacturing means the processing and/or converting of raw, unfinished materials or products, or either of them, into articles or substances of different character, or for use for a different purpose.

Mobile food unit means a self-contained food service operation located in a readily movable wheeled vehicle or towed trailer, used to store, prepare, display, or serve food intended for individual portion service. Mobile food units shall not include any food service operating pursuant to a permit issued for a town-sponsored special event, or any food service operation serving food for a private event that is not open to the public.

Mobile home means a anything designed for human habitation, designed for transportation, after fabrication, on streets and highways on its own wheels or on flatbed or other trailers, and arriving at the site where it is to be occupied as a dwelling complete and ready for occupancy, except for minor and incidental unpacking and assembly operation, location on jacks or permanent foundations, connection to utilities and the like. A mobile home retains its character as such, and remains subject to the same regulations and restrictions, even if not used for residential purposes.

Mobile home park or subdivision means any area designed to accommodate two or more mobile homes intended for residential use where residence is in mobile homes exclusively.

Neighborhood public utility means facilities which are related to utility services such as electricity, telephone, cable television, natural gas, water or sewer and of a type generally used to provide service to the immediate vicinity of the facility. The term "neighborhood public utility" does not include telecommunications antennas or towers. The term "neighborhood public utility" also does not include any utility poles which exceed 65 feet in height, have cross arms exceeding six feet in length, or have a diameter in excess of 36 inches. Finally, the term "neighborhood public utility" does not include anything included within the definition of "wide-area public utility."

Off-street parking area means space provided for vehicular parking outside the dedicated street right-of-way.

Planning commission means the planning commission of the town.

Pool hall means a building or a portion of a building in which four or more pool or billiard tables are operated for money or other consideration.

Public utility means electricity, water, sewer, gas and other utilities served to a dwelling or structure, including all distribution lines.

Public water and sewer systems means a water or sewer system owned and operated by a municipality or county, or owned and operated by a private individual or a corporation approved by the town council and properly licensed by the state corporation commission, and subject to special regulations as herein set forth.

Rear means an open, unoccupied space on the same lot as a building between the rear line of the building (excluding steps) and the rear line of the lot and extending the full width of the lot.

Required open space means any space required in any front, side, or rear yard.

Restaurant means any building in which, for compensation, food or beverages are dispensed for consumption on the premises, including, among other establishments, cafes, tea rooms, confectionery shops, or refreshment stands.

Retail stores and shops means buildings for display and sale of merchandise at retail or for the rendering of personal services (but specifically exclusive of coal, wood, and lumber yards), such as, but not limited to, the following: drug store, newsstand, wood store, candy shop, milk dispensary, dry goods and notions store, antique shop and gift shop, hardware store, household appliance store, furniture store, florist, optician, music and radio store, tailor shop, barbershop, and beauty shop.

School means a place for systematic instruction in any branch of knowledge.

Setback means the minimum distance by which any building or structure must be separated from the front lot line.

Short-term rental means any use that falls within the definitions of short-term rental, owner-occupied, or short-term rental, non-owner-occupied.

Short-term rental, non-owner-occupied, means any occupancy of a dwelling for a continuous period of less than 30 days, which does not meet the definition of "short term-rental, owner-occupied."

Short-term rental, owner-occupied, means any occupancy of a dwelling for a continuous period of less than thirty days, where the owner of the dwelling during such period also resided on the same property.

Side means an open, unoccupied space on the same lot as a building between the side line of the building (excluding steps) and the side line of the lot, and extending from the front yard line to the rear yard line.

Story means that portion of a building, other than the basement, included between the surface of the floor and the surface of the floor next above it. If there is no floor above it, the space between the floor and the ceiling next above it.

Story, half, means a space under a sloping roof which has the line intersection of roof decking and wall face not more than three feet above the top floor level, and in which space not more than two-thirds of the floor area is finished off for use.

Structure means anything constructed or erected, the use of which requires permanent location on the ground or attachment to something having a permanent location on the ground. The term "structure" includes, among other things, dwellings, buildings, signs, etc.

Telecommunications antennas means, when used anywhere in this Code, the meaning set forth in section 30-791.

Telecommunications towers means, when used anywhere in this Code, the meaning set forth in section 30-791.

Tourist court, auto court, motel cabins, ormotor lodge means one or more buildings containing individual sleeping rooms designed for or used temporarily by automobile tourists or transients, with garage or parking space conveniently located to each unit. Cooking facilities may be provided for each unit.

Tourist home means a dwelling where only lodging is provided for compensation for up to 14 persons (in contradiction to hotels and boardinghouses) and open to transients.

Townhouse means a single-family unit being one of a group of three or more such units attached to the adjacent dwelling by party walls with lots, utilities and other improvements being designed to permit individual and separate ownership of such lots and dwelling units.

Travel trailer means a mobile unit less than 29 feet in length and less than 4,500 pounds in weight which is designed for human habitation.

Use, accessory, means a subordinate use, customarily incidental to and located upon the same lot occupied by the main use.

Wayside stand, roadside stand, wayside market means any structure or land used for the sale of agricultural or horticultural produce, livestock, or merchandise produced by the owner or his family on their farm.

Wide-area public utility means facilities which are related to utility services such as electricity, telephone, cable television, natural gas, water or sewer and used to provide service beyond the immediate vicinity of the facilities. The term "wide-area public utility" includes electrical substations, telephone switching facilities, and similar equipment. The term "wide-area public utility" does not include telecommunications antennas or towers.

Yard means an open space on a lot other than a court unoccupied and unobstructed from the ground upward, except as otherwise provided herein.

(Code 1988, § 9-22; Ord. of 12-3-1990; Ord. of 5-1-1995; Ord. of 7-13-1998; Ord. of 11-9-1999; Ord. of 2-7-2000; Ord. of 11-6-2000; Ord. of 12-10-2007; Ord. of 1-28-2008; Ord. of 8-10-2020; Ord. of 10-15-2024, § 1)

(a)

Notwithstanding any contrary provision in this chapter, adult businesses are distinct from and mutually exclusive of all other uses defined or referenced in this Code. Accordingly, if a use falls within the definition of an adult business, it cannot qualify as a "retail store," "restaurant," or other use.

(b)

The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this subsection, except where the context clearly indicates a different meaning:

Adult business means:

(1)

An adult theatre;

(2)

Adult store;

(3)

Any business providing adult entertainment; or

(4)

Any other establishment that regularly emphasizes materials or demonstrations relating to specified sexual activities or specified anatomical areas or is intended for the sexual stimulation or titillation of patrons.

Adult entertainment means dancing, modeling, or other live performances in which the performance is characterized by an emphasis on specified anatomical areas or specified sexual activities, or is intended for the sexual stimulation or titillation of patrons. Adult entertainment also includes the presentation of materials or images (irrespective of the media) characterized by their emphasis on specified sexual activities or specified anatomical areas or the intent to provide sexual stimulation or titillation of patrons.

Adult store means an establishment which sells or rents materials (whether printed or in electronic, optical, magnetic, or other media) characterized by their emphasis on specified sexual activities or specified anatomical areas or their predominant purpose being to provide sexual stimulation or titillation of patrons, or toys, novelties, instruments, devices or paraphernalia which represent human genital organs or female breasts, or designed or marketed primarily for use to stimulate human genital organs. Nevertheless, if the aforementioned items constitute only an insubstantial portion of an establishment's stock-in-trade, the establishment shall not be considered an adult store.

Adult theatre means an establishment which presents for the viewing or listening of patrons materials characterized by:

(1)

Their emphasis on specified sexual activities or specified anatomical areas; or

(2)

The intent to provide sexual stimulation or titillation of patrons.

Specified anatomical areas means areas as follows:

(1)

If less than completely and opaquely covered, human genitals, pubic regions, buttocks and the female breasts below a point immediately above the top of the areola; and

(2)

Irrespective of coverage, human male genitals in a discernibly turgid state.

Specified sexual activities means as follows:

(1)

The display of, or the reference to, human genitals in a state of sexual stimulation or arousal;

(2)

Acts of human masturbation, sadomasochistic abuse, sexual penetration with an inanimate object, sexual intercourse or sodomy; or

(3)

Fondling or other erotic touching of human genitals, pubic regions, buttocks or female breasts.

(Code 1988, § 9-22.1; Ord. of 5-1-1995; Ord. of 7-13-1998; Ord. of 11-9-1999; Ord. of 2-7-2000; Ord. of 11-6-2000; Ord. of 7-11-2005; Ord. of 12-10-2007; Ord. of 1-28-2008)