Lakeway City Zoning Code
ARTICLE 30
05 SPECIAL USE PERMITS
§ 30.05.001 Generally.
A special use permit shall be obtained for certain uses which may be harmonious under special conditions and in specific locations within a zoning district, but are not allowed under the general conditions of the zoning district.
(Ordinance 2018-07-16-10 adopted 7/16/18)
§ 30.05.002 Special use permits.
(a)
Permit required.
(1)
No special use shall be established, operated, or maintained except as authorized by a special use permit issued in accordance with the requirements of this section.
(2)
A special use permit may be issued only for the special uses specified in this chapter, and only for the district where it is authorized. A special use permit may be issued by:
(B)
The code official, for home occupation permit applications which comply with all provisions of sections 30.05.003, 30.05.004, and 30.05.005 in addition to renewals subject to the provisions of subsection (f)(2)(A) of this section, shall approve any application for a home occupation permit that complies with all provisions of these sections. If the code official believes that an application does not comply with all provisions of these sections, the code official shall recommend denial of the application. An applicant may appeal a code official's recommendation of denial to the zoning and planning commission, which will consider the appeal and issue a recommendation to the city council. The city council will issue the final determination of the appeal, after considering the recommendation of the planning and zoning commission and holding a public hearing.
(C)
The code official shall approve any new application for a short-term rental permit that complies with all applicable provisions of this article.
(D)
The issuing authority may impose conditions on the issuance of a requested special use permit. Such conditions shall be reasonably related to the criteria applicable to special use permits as described in section 30.05.003, 30.05.004, or 30.05.004.5 as applicable.
(b)
Application.
An application for a special use permit shall be made in writing in a form prescribed by the city and shall be accompanied by such information as may be requested (including a site plan, if required) in order to properly review the proposed permit. Such information may include, but is not limited to, site and building plans, drawings and elevations, and operational data. The applicant, or its representative, for a special use permit shall attend all public hearings during which the application will be discussed.
(c)
Report by city staff.
Whenever a special use permit application is to be considered by the zoning and planning commission or the city council, a designated member of the building and development services department may visit the site of the proposed special permits and the surrounding area and shall prepare a report of findings to be given to the zoning and planning commission and the city council, as the case may be.
(d)
Notice - public hearings required.
(1)
Public hearings shall be held by each body considering and/or approving each original application for a special use permit, except home occupation applications and short-term rental permit applications processed for approval by the code official. However, a public hearing may be held before the zoning and planning commission for permit applications or renewals approvable by the code official when requested by the code official. The public hearings for all other special use permits may be a joint public hearing of the zoning and planning commission and the city council. The applicant must be present during all public hearings regarding his application. If the applicant is not present at each public hearing, the applicant's application is subject to denial.
(2)
When required by applicable law, rule or regulation, written notice of each hearing shall be given to the owners of all real property located within two hundred feet (200') in all directions of the property that is the subject of the hearing. Notice shall be given not less than ten (10) days prior to the date of the hearing either by personal service or by depositing a copy of the notice in the mail addressed to owners at their address as shown on the last approved city tax roll, with postage prepaid.
(3)
Such notice shall state the purpose, date, time, and place of the hearing and shall contain a brief description of the proposed permit, including its nature, scope, and location. The notice shall also describe any variances the applicant has requested and shall state the location and times at which the applications and supporting documents are available for public inspection. A telephone number shall be provided where information on the hearing(s) is or will be available at a later date.
(e)
Review and recommendation by the zoning and planning commission.
(2)
The commission shall not recommend approval of an application unless it finds that the proposed permit as presented or as modified by the commission, complies with each of the general and applicable specific criteria.
(3)
A recommendation of an approval may be conditioned on the applicant's adoption of specified changes, additions, limitations, safeguards, or effective time periods designed to assure compliance with the criteria.
(4)
The commission shall forward its findings and recommendations to the city council, for those permits not approvable by the commission.
(5)
After receiving findings and a recommendation from the zoning and planning commission, and following a public hearing, the city council shall review applications for nonresidential applications for special use permits.
(f)
Review and action.
(1)
For new applications in residentially zoned districts for home occupation permits only:
(A)
The code official shall determine whether the proposed permit complies with each of the general criteria in section 30.05.003, with each of the special criteria in section 30.05.004, and with each of the general requirements in section 30.05.005 applicable to the proposed permit. The code official may condition its approval of an application on the applicant's adoption of specified changes, additions, limitations, safeguards, or effective time periods designed to assure compliance with the criteria.
(B)
A special use permit for a home occupation shall not be approved unless it complies with each of the applicable general and specific criteria; otherwise the application shall be denied.
(2)
For renewal applications for home occupation permits only:
(A)
If no substantiated complaint(s) have been lodged against the applicant or the applicant's home business after the last permit was issued, the code official may approve home occupation renewal permits for an additional 12-month period.
(B)
If any substantiated complaints have been lodged against the renewal applicant or the applicant's home business after the last permit was issued, the application for renewal will be directed to the zoning and planning commission pursuant to subsection (a)(2)(B) and (C) and will be processed as a new application.
(C)
Substantiated complaints shall be defined as any written complaint submitted to the building and development services department or code enforcement and determined by city staff to be an ordinance violation, including a violation of this article, or state law violation that is supported or verified by corroborating information, for example the report of an investigating police or code enforcement officer or an audio or video recording. The allegations in the complaint do not have to be the subject of a criminal complaint or result in a criminal conviction for the complaint to be substantiated. The building and development services director or their designee shall notify the permit owner in writing of any substantiated complaint.
(3)
For all other applications, except those approvable without city council intervention:
(A)
Upon receipt of the commission's recommendation, the city council shall determine whether the proposed permit complies with each of the general criteria in section 30.05.003 and with each of the general requirements in section 30.05.005 applicable to the proposed permit and, for short-term rentals, with the specific criteria and conditions in section 30.05.004.5, and shall make separate findings thereon or adopt the findings made by the commission. The city council may condition its approval of an application on the applicant's adoption of specified changes, additions, limitations, safeguards, or effective time periods designed to assure compliance with the criteria.
(B)
The city council shall not grant a special use permit unless it finds that the proposed special use, as presented or as modified by the council, complies with each of the applicable general and specific criteria; otherwise it shall deny the application.
(g)
For renewal application for short-term rental permits only.
(1)
If no more than two (2) substantiated complaints have been filed with the city police department and/or the code enforcement section of the building and development services department against the applicant or the short-term rental property after the last permit was issued, upon a determination of compliance with all applicable criteria, requirements and conditions, the code official may approve short-term rental renewal permits for an additional 24-month period.
(2)
If more than two (2) substantiated complaints have been filed with the city police department or the code enforcement section of the building and development services department against the applicant or the short-term rental property after the last permit was issued, the application for renewal will be directed to the zoning and planning commission for review, public hearing, determination of compliance with all applicable criteria, requirements and conditions, and determination.
(Ordinance 2018-07-16-10 adopted 7/16/18; Ordinance 2022-08-01-01 adopted 8/1/22; Ordinance 2024-02-20-03 adopted 2/20/2024)
§ 30.05.003 General criteria applicable to all special uses.
(a)
A proposed special use permit must comply with all the following criteria:
(1)
The issuance of the proposed permit will not have an adverse effect on the value of surrounding properties nor impede their proper development;
(2)
The issuance of the proposed permit will not create a nuisance as defined in section 22.02.001 of this code;
(3)
The traffic that the proposed use for which the permit is sought cannot reasonably be expected to create nor add significantly to traffic congestion, a safety hazard, or a parking problem on existing residential streets in the area. A traffic impact analysis may be required by the city engineer or code official if the code official or the city engineer determines that the proposed use is likely to create or significantly add to congestion, a safety hazard, or a parking problem; and
(4)
The proposed permit complies with all other applicable ordinances and regulations.
(b)
Specific criteria applicable to applications for short-term rental permits.
The following shall be included in the initial special use permit application to operate a short-term rental, in addition to the general special use permit application:
(1)
The complete legal description, street address, and location of the short-term rental unit;
(2)
Proof of ownership and the name, street address, telephone number, driver's license, and email of each person or entity with an ownership interest in the short-term rental as well as the local responsible contact for the short-term rental;
(3)
A site plan showing the size and dimensions of the short-term rental, the gross square footage, location and number of rooms, bedrooms, bathrooms, kitchens, and vehicle parking spaces;
(4)
Proof of a valid and current registration, license, or approval under the hotel occupancy tax program administered by the state and the city and proof of payment of hotel occupancy taxes due as of the date of the submission of the application;
(5)
Proof of property insurance for the short-term rental;
(6)
Any additional information the city manager or their designee determines necessary for the administration of this chapter.
(Ordinance 2018-07-16-10 adopted 7/16/18; Ordinance 2022-08-01-01 adopted 8/1/22; Ordinance 2024-02-20-03 adopted 2/20/2024)
§ 30.05.004 Criteria applicable to individual home occupation permits.
A proposed home occupation must comply with all of the following specific criteria as well as the foregoing general criteria applicable to special use permits generally (see sections 30.05.002 and 30.05.003 of this Code):
(1)
The occupation shall not:
(A)
Change the residential character of the lot and dwelling;
(B)
Alter the exterior appearance of the building(s) from that of a dwelling for human habitation, or alter the appearance of accessory structures so as to be architecturally inconsistent with the main building; or
(C)
Require the installation of machinery or equipment other than the type and quantity of machinery or equipment customarily found in a home associated with a hobby, avocation, or home office.
(2)
Such use shall be incidental and secondary to the use of the premises for residential purposes.
(3)
Participation in a home occupation is limited to occupants of the dwelling unit.
(4)
The occupation shall not offer a ready inventory of goods or commodities for sale on the premises unless the goods or commodities are made or assembled on-site.
(5)
There shall be no outside storage or display related to the home occupation visible from a public right-of-way or adjoining residence unless the storage or display is of a type typically visible in a residential area.
(6)
The occupation shall not consist of the following uses, or other similar uses, as defined or used in the following sections of this code:
(D)
Repairing (sections 30.03.013, district M (marina), 30.03.014, district AG (agricultural), and 30.03.016, district AV (aviation);
(7)
No signs advertising the home occupation shall be permitted on the premises, including vehicles parked on the premises.
(8)
No occupation use shall be allowed which creates any hazardous risk or condition on the premises or to surrounding neighbors or their property, or any other health or safety hazard, including but not limited to release of industrial or hazardous materials into the stormwater or wastewater systems, whether regulated by statute or rule promulgated by any administrative body of the state, by the federal government, by the city, or which would constitute a common law nuisance.
(9)
The occupation shall not be detrimental or injurious to adjoining property or residents, or create a disturbance to said adjoining residents, by the creation of dust, electrical interference, fumes, gas, glare, heat, light, noise, vibration, waste runoff, or other reasonably objectionable or obnoxious conditions.
(10)
Nothing herein shall be construed to allow animal breeding, animal hospitals, pet grooming, commercial kennels, commercial stables, veterinary offices, clinics, hospitals, barbershops, beauty parlors, contractor’s yards, dancing schools/studios, junkyards, lodging houses, “bed and breakfast” lodges, massage parlors/therapy clinics, restaurants, cocktail lounges, rental outlets, adult oriented businesses or vehicle repair shops as home occupations.
(Ordinance 2022-08-01-01 adopted 8/1/22)
§ 30.05.004.5 Criteria applicable to short-term rental use permits.
Short-term rental use must comply with all of the following specific criteria and conditions as well as the general criteria in section 30.05.003.
(1)
The applicant shall provide a copy of the filed Comptroller of Public Accounts' Form AP-102 (hotel occupancy tax questionnaire);
(2)
The applicant shall provide proof of insurance with the use "short-term rental" clearly identified;
(3)
The total number of short-term rental use permits issued by the city shall not exceed twenty-five (25);
(A)
The limit of twenty-five (25) short-term rental use permits shall not include a short-term rental use permit for residential property in R-5 (Condominium) zoning and/or a separate zoning agreement with the city.
(4)
No new initial permit shall be issued for residential property located within one thousand (1,000) feet of another residential property that has a current short-term rental use permit;
(A)
A permit for residential property in R-5 (Condominium) zoning and/or a separate zoning agreement with the city shall be exempted from the 1,000 foot distance requirement.
(5)
Initial permits shall be issued for a one (1) year period and shall be renewable for a two (2) year period, provided a complete application for renewal is filed with the city no more than ninety (90) days and no less than sixty (60) days prior to the expiration date of the initial permit;
(6)
No permit application shall be accepted for filing, processed, or approved during a period of one (1) year following the denial of an application or revocation of a permit for any residential property;
(7)
No additional permit application for short-term rental use shall be accepted for filing from, processed, or approved for an owner of real property with an existing permit for short-term rental use;
(8)
A permit is not transferable and shall be void upon transfer or conveyance of the property;
(9)
All structures housing short-term rental use shall comply with this article and all other applicable regulations of this code, and compliance shall be verified by means of an on-site inspection by city staff;
(10)
Parking by renters or their guests shall be limited to the right-of-way bordering the rental property and to the garage and driveway on the rental property, unless otherwise specified in Section 18.05.003, and shall not encroach upon or obstruct ingress and egress to the neighboring properties;
(11)
Advertisement of the short-term rental use shall adhere to "truth in advertising" principles and shall clearly state maximum occupancies;
(12)
Advertisement of the short-term rental use shall not be displayed on the premises of the property in any manner that is visible from the exterior of the house;
(13)
Short-term rental use permit holders shall comply with and ensure their tenants comply with all applicable city ordinances and state laws regulating litter, waste disposal, noise, nuisance, and other regulations for the protection of the health, safety, and welfare of the public;
(14)
The short-term rental use shall not produce nuisances as defined in section 22.02.001 or elsewhere in this code including but not limited to noise, damage, odors, inconsiderate or offensive behavior, late night parties, illegal drug or alcohol use, pets, public urination, public exposure, disturbance of the peace, disorderly conduct, or any other conduct that may constitute a public or private nuisance;
(15)
Minimum rental period shall be two (2) consecutive nights;
(16)
Short-term rental use permit holders shall file state hotel occupancy tax reports in a timely manner, shall maintain accurate logs including dates and times of rentals, number of guests, number of automobiles present, and complaints received, and shall forward logs to the city-designated official on a monthly basis;
(17)
The city manager or assistant city manager may suspend any short-term rental permit upon the finding of one or more of the following:
(A)
A violation of any of the applicable terms, conditions, or limitations;
(B)
A violation of any applicable ordinance or regulation;
(C)
Operation or maintenance of the short-term rental property in a manner that is detrimental to the public's health, safety, or so as to constitute a nuisance.
Determinations made by the city manager or assistant city manager may be appealed to the board of adjustment.
(Ordinance 2020-03-16-04 adopted 3/16/20; Ordinance 2024-02-20-03 adopted 2/20/2024)
§ 30.05.004.6 Criteria specifically applicable to home occupation permits for home daycare operations.
(b)
A home daycare operation that operates as a “listed” or “registered” facility as defined in statute or Texas Health and Human Services Commission regulations may be approved (possibly with additional restrictions or limitations) taking into account factors including but not limited to the operator’s proposed business model, the size of the home, the size of the lot, the size of the space available in the yard for outside activities of the children under care, distance to neighboring homes, and parking availability. The city council may grant a home occupation permit for a “listed” or “registered” home daycare operation after a recommendation on the proposed permit from the zoning and planning commission, and following public notice and hearings as required by section 30.05.002(d) of this article.
(c)
A home daycare operation that operates as a “licensed” facility as defined in statute or Texas Health and Human Services Commission regulations shall not be approved in a residential zoning district.
(d)
Section 30.05.004(3) applies to home daycare operations unless provided otherwise for in the special use permit.
(e)
Parking for all home daycare operations, including the operator, other residents of the home, customers, visitors, and helpers or contractors shall be limited to the right-of-way bordering the home daycare operation, where permitted, and to the garage and driveway on the property of the home daycare operation. Such parking shall not encroach upon or obstruct ingress and egress to neighboring properties.
(Ordinance 2022-08-01-01 adopted 8/1/22)
§ 30.05.004.7 Criteria applicable to gaming/software sweepstakes device special use permits.
Gaming/software sweepstakes device (GSSD) use must comply with all of the following specific criteria and conditions as well as the general criteria in section 30.05.003.
(1)
The total number of GSSD special use permits issued by the city shall not exceed three (3) current at any one time;
(2)
No new initial permit shall be issued for any commercial property located within fifteen hundred (1,500) feet of another commercial property that has a current GSSD special use permit;
(3)
No new initial permit shall be issued for any commercial property located within fifteen hundred (1,500) feet of a school, place of worship or residential neighborhood;
(4)
Provide acknowledgement of approval by the property owner if located in a multi-tenant business center.
(5)
Initial permits shall be issued for a one (1) year period and shall be renewable for a two (2) year period, provided a complete application for renewal is filed with the city no more than ninety (90) days and no less than sixty (60) days prior to the expiration date of the initial permit;
(6)
No permit application shall be accepted for filing, processed, or approved during a period of one (1) year following the denial of an application or revocation of a permit;
(7)
No additional permit application for GSSD use shall be accepted for filing from, processed, or approved for an owner of real property or lessee with an existing permit for GSSD use;
(8)
A permit is not transferable and shall be void upon transfer or conveyance of the property or change in lessee;
(9)
GSSD use shall comply with this article and all other applicable regulations of this code, and compliance shall be verified by means of an on-site inspection by city staff;
(10)
GSSD use shall not produce nuisances as defined in section 22.02.001 or elsewhere in this code including but not limited to noise, damage, odors, inconsiderate or offensive behavior, late night parties, illegal drug or alcohol use, pets, public urination, public exposure, disturbance of the peace, disorderly conduct, or any other conduct that may constitute a public or private nuisance;
(11)
This section does not apply to a charitable raffle, a savings promotion raffle, a sweepstakes regulated by the Alcoholic Beverage Code, a company regulated under title 2, Utilities Code, a drawing for the opportunity to participate in a hunting, fishing, or other recreational event conducted by the parks and wildlife department, a sweepstakes promoting one or more food products regulated by the United States Food and Drug Administration or the United States Department of Agriculture, or a company that owns or operates a cable system as defined in section 622 of the Texas Local Government Code.
(12)
The city manager or assistant city manager may suspend any GSSD permit upon the finding of one or more of the following:
(A)
A violation of any of the applicable terms, conditions, or limitations;
(B)
A violation of any applicable ordinance or regulation;
(C)
Operation or maintenance of the GSSD business in a manner that is detrimental to the public's health, safety, or so as to constitute a nuisance. Determinations made by the city manager or assistant city manager may be appealed to the board of adjustment.
(Ordinance 2024-03-18-03 adopted 3/18/2024)
§ 30.05.005 General requirements for all special uses.
(a)
Adherence to approved plans, regulations.
A special use shall be established, operated and maintained in accordance with the plans, terms, conditions, and limitations contained in the permit approved by the code official, the zoning and planning commission and/or the city council.
(b)
Duration.
Special use permits shall be granted for a definite period of time.
(c)
Revocation.
After any of the following alleged circumstances, city council and/or the zoning and planning commission, with prior written notice to the permittee, and upon notice and public hearing, may for good cause revoke any special use permit:
(1)
More than two (2) notices of violation (NOV) or two (2) citations have been issued within two (2) consecutive calendar years for violation of any of the plans, terms, conditions, and limitations applicable to the special use;
(2)
More than two (2) notices of violation (NOV) or two (2) citations have been issued within two (2) consecutive calendar years for a violation of any applicable ordinance or regulation;
(3)
Operation or maintenance of the special use in a manner that is detrimental to the public’s health or safety, or so as to constitute a nuisance;
(4)
Providing false or misleading information on a permit application or omitting required information;
(5)
Information provided with the permit application is no longer accurate or effective and the permit holder fails to inform the city with the information;
(6)
Required insurance policy for a short-term rental is cancelled or not renewed;
(7)
The permit holder for a short-term rental is overdue in payment to the city of taxes, fees, fines, or penalties or fails to provide documentation showing that all hotel occupancy taxes have been paid for the property; and/or
(8)
The short-term rental is sold or otherwise transferred.
(d)
Lapse of permit.
A special use permit shall lapse if the use has not been commenced within six (6) months of the date the permit was issued.
(e)
Transfer.
A special use permit for a nonresidential property is not transferable and shall be void upon transfer of property or business.
(Ordinance 2018-07-16-10 adopted 7/16/18)