For the purpose of this Ordinance, certain terms and words used herein shall be interpreted as follows:

(1)

Words used in the present tense include the future tense.

(2)

Words used in the singular number shall include the plural, and words used in the plural number shall include the singular.

(c)

The word "person" shall include a firm, association, organization, limited liability company, limited partnership, corporation, trust, company, as well as a natural individual.

(4)

The word "City" shall mean the City of Montgomery.

(5)

The word "shall" and "must" are used to indicate mandatory directives.

(6)

The word "structure" shall include the word "building."

(7)

The word "map" or "zoning map" or "Zoning Map, City of Montgomery, West Virginia" or "official zoning map" shall mean the map that geographically illustrates all zoning district boundaries within the City of Montgomery, West Virginia, pursuant to the requirements of Chapter 8A of the West Virginia Code.

(8)

The term "governing body" and "council" shall mean the City Council for the City of Montgomery, West Virginia, pursuant to the Charter of the City of Montgomery.

(9)

The term "planning commission" shall mean the Planning Commission for the City of Montgomery, West Virginia, pursuant to Chapter 8A of the West Virginia Code.

(10)

"Districts" or "zoning districts" shall mean administrative tracts designating the uses to which land can legally be utilized. Boundaries of the districts are shown on the official zoning map, which is a part of this Code.

(Ord. of 5-9-2023)

(1)

"Adult business" means an adult bookstore, movie theater, or movie house or other adult entertainment, as defined herein.

(a)

"Adult bookstore" means any commercial establishment that offers for sale as a substantial or significant portion of its stock-in-trade videocassettes, movies, books, magazines or other periodicals, or other media that are distinguished or characterized by their emphasis on nudity or sexual conduct or on activities that, if presented in live presentation, would constitute adult entertainment.

(b)

"Adult entertainment" means any establishment providing, either as a sole use or in conjunction with or in addition to other uses, entertainment consisting of the use of nudity or of live dancing, posing, displaying, acting, or other live presentation or use of persons whose actions are distinguished or characterized by emphasis on use of the human body in a manner intended to or resulting in arousal of sexual excitation or sexual titillation or a prurient interest or intended to or resulting in producing lustful emotions.

(c)

"Adult movie theater" or "movie house" (including adult mini-theaters) means any movie theater that on a regular, continuing basis shows films rated X by the Motion Picture Coding Association of America or any movie theater that presents for public viewing on a regular, continuing basis so-called adult films constituting adult entertainment, as defined by this Code.

(2)

"Agritourism enterprise" means activities associated with an agricultural operation and offered to the public or to invited groups for the purpose of recreation, education, or active involvement in the operation. These activities must be directly related to agricultural or natural resources and may include a brewery, cidery, mini-distillery, winery, and accompanying tasting facilities.

(3)

"Amphitheater" means an outdoor gathering space typically for entertainment that is often constructed with tiers of seats or sloping surfaces that gradually rise outward from a central open space or stage. An amphitheater may include a band shell-type structure to provide weather protection to a stage.

(4)

"Amusement and recreation center" means a business establishment, generally intended for use by all ages, that provides recreation or entertainment, including but not limited to swimming pools, dance halls, bowling alleys, skating rinks, billiard and pool halls, video and other coin-operated electronic games, miniature golf courses, indoor archery ranges, table games, trampolines, ball pits, and similar recreational diversions.

(5)

"Animal grooming" means services provided to domesticated pet animals including, but not limited to, clipping, bathing, and related services, and excluding veterinary services unless combined with said use as permitted under this Ordinance.

(6)

"Animal hospital/veterinary office" means an establishment for temporary occupation by sick or injured animals for the purpose of medical diagnosis and treatment, but excluding the treatment or other care of humans.

(7)

"Automobile car wash" means the use of a site for washing and cleaning of automobiles, recreational vehicles, or other light duty equipment.

(8)

"Bakery" means an establishment primarily engaged in the retail sale of baked goods for consumption off-site.

(9)

"Bank/financial institution" means a bank, savings and loan, credit union, or other institution that provides retail banking services to individuals and businesses.

(10)

"Bed and breakfast inn" means a private residence in which overnight accommodations are provided for not more than five transient paying guests in up to four bedrooms at any particular time. The residence may or may not be occupied by the owner during the guests' overnight stay; if not owner-occupied, a designated operator is present within in the City of Montgomery and available at all times the property is being rented.

(11)

"Boat livery" means the rental of canoes, kayaks, and similar small boats for recreational use.

(12)

"Boat and marine sales/service" means the sales, service, and repair of new and used boats, boat trailers, marine hardware, and related products

(13)

"Boat storage" means an enclosed, partially enclosed, or open facility utilized for the wet or dry storage of boats.

(14)

"Brewery pub" means a place of manufacture of nonintoxicating beer or nonintoxicating craft beer owned by a resident brewer as defined by the West Virginia Code, subject to federal and state regulations and guidelines, a portion of which premises may be designated for retail sales for consumption on the premises of nonintoxicating beer or nonintoxicating craft beer by the resident brewer owning the brewpub.

(15)

"Broadcasting studio" means a structure housing the operation of the over-the-air distribution of audio or video signals to a large number of recipients ("listeners" or "viewers") within the technical reach of the signals.

(16)

"Building material facility" means an establishment that sells home, lawn, garden supplies, tools and construction materials, such as brick, lumber, hardware, and other similar materials. Construction goods may be located in outdoor storage.

(17)

"Bus and transit facilities" means a facility operated as a bus or rail passenger station or transfer center that may have a covered structure. Typical facilities may include station platforms, bus bays, off-street parking, private access roads, and other passenger amenities.

(18)

"Bus and transit shelter" means a covered structure, located near a street and designed primarily for protection against the weather for bus or other transit passengers.

(19)

"Café/coffee shop" means an establishment in which beverages, primarily coffee and tea; light meals; and snacks are served, provided no food shall require preparation utilizing an open flame or fryer, and provided the establishment does not exceed one thousand square feet in gross floor area.

(20)

"Campground" means a publicly or privately owned site designed, designated, maintained, intended, or used for the purpose of supplying a location for seasonal, recreational, and temporary living purposes in cabins, tents, or recreational equipment or vehicles open to the public for free or for a fee.

(21)

"Catering business" means the preparation and delivery of food and beverages for off-site consumption for a fee.

(22)

"Child day care facility" is divided into four classes:

(a)

"Child day care facility, Class 1" means a facility maintained by the state or any county or municipality thereof, or any agency or facility maintained by an individual, firm, corporation, association, or organization, public or private, for the care of thirteen or more children for child care services in any setting, if the facility is open for more than thirty days per year per child.

(b)

"Child day care facility, Class 2" means a facility that is used to provide child care services for compensation for seven to twelve children, including children who are living in the household, who are under six years of age. No more than four of the total number of children may be under twenty-four months of age. A facility may be in a provider's residence or a separate building.

(c)

"Child day care facility, Class 3" means a facility that is used to provide child care services for compensation in a provider's residence. The provider may care for no more than six children at one time including children who are living in the household, who are under six years of age. No more than two of the total number of children may be under twenty-four months of age.

(d)

"Child day care facility, Class 4" means residential child care services for compensation for three or fewer children, including children who are living in the household, who are under six years of age. Care is given in the provider's own home to at least one child who is not related to the caregiver.

(23)

"Clinic" means an establishment providing medical, dental, chiropractic, psychiatric, substance abuse treatment, or surgical services exclusively on an outpatient basis, including emergency treatment and diagnostic services.

(24)

"Community facility" means a nonprofit facility, whether publicly or privately owned, with the primary goal to provide a community service.

(25)

"Continuing care facility" means one or more of the following types of facilities:

(a)

"Adult assisted living" means any facility, residence, or place of accommodation available for four or more residents for the purpose of having personal assistance or supervision, or both, provided to any residents therein who are dependent upon the services of others by reason of physical or mental impairment and who may also require nursing care at a level that is not greater than limited and intermittent nursing care.

(b)

"Nursing home" means any institution, residence, or place, or any part or unit thereof, however named, that is advertised, offered, maintained, or operated by the ownership or management, whether for consideration or not, for the express or implied purpose of providing accommodations and care, for a period of more than twenty-four hours, for four or more persons who are ill or otherwise incapacitated and in need of extensive, ongoing nursing care due to physical or mental impairment or that provides services for the rehabilitation of persons who are convalescing from illness or incapacitation.

(c)

"Skilled nursing facility" means an institution, or a distinct part of an institution, that primarily provides inpatient skilled nursing care and related services, or rehabilitation services, to injured, disabled, or sick persons.

(26)

"Convenience store" means a business establishment that offers convenience goods for sale, such as prepackaged or limited prepared food items, tobacco, and periodicals, but not displaying merchandise or products outdoors, except where such display is required to sell the merchandise. The use does not include the sale of gasoline unless combined with the gas station use.

(27)

"Conversion of old schools and churches" means the adaptive reuse of a former school or church for residential or commercial purposes not affiliated with the prior use.

(28)

"Correctional facility" means a publicly or privately operated facility housing persons awaiting trial, serving a sentence after being found guilty of a criminal offense, being within the jurisdiction of a federal, state, or local probation, parole, or corrections agency or receiving treatment other than at a hospital while under the jurisdiction of such authority or agency, including but not limited to jails, prisons, juvenile detention centers, work release centers, pre-release centers, and treatment centers.

(29)

"Cultural service" means a site used for the collection, display, or preservation of objects of community or cultural interests, such as a library, museum, or similar facility.

(30)

"Distillery" means a state licensed distillery establishment where in any year (as defined by WVABC) more than twenty thousand gallons of alcoholic liquor (not including wine or beer but including mead) is manufactured or in any way prepared; or, an establishment where in any year (as defined by WVABC) less than twenty thousand gallons of alcoholic liquor is manufactured but the facility cannot meet the requirements for locally produced (raw agricultural) ingredients for the production as defined in the "mini distillery" definition in this Ordinance.

(31)

"Distillery, mini" means a state licensed Mini Distillery establishment where in any year (as defined by WVABC) no more than twenty thousand gallons of alcoholic liquor is manufactured with no less than twenty-five percent of raw agricultural products being produced by the owner of the mini-distillery on the premises of that establishment, and no more than twenty-five percent of raw agricultural products originating from any source outside this state.

(32)

"Distribution facility" means any premises, or part thereof, that provides logistical support for business, such as freight management, inventory control, storage, packaging, and consolidation of goods for distribution to be redistributed to retailers, wholesalers, or directly to the consumer.

(33)

"Dog day care" means an organized, controlled, and monitored environment for a group of dogs to interact and play throughout the day. The purpose is to provide stimulation, exercise, and socialization for dogs, and ancillary services. Overnight stays are not permitted in dog day care facilities.

(34)

"Drive-in theater" means a designated area where an outdoor movie screen may be viewed by persons from within their vehicles or from outdoor spaces. May include concessions, tables, and outdoor dining areas, and playgrounds.

(35)

"Drive-through facility" means the accessory use of land, buildings or structures, or parts thereof, to provide or dispense products or services, either wholly or in part, through an attendant or a window or automated machine, to persons remaining in motorized vehicles that are in a designated lane or parking spot. A drive-through facility may be in combination with other uses such as a laundry shop, dry cleaning shop, dry cleaner's distributing station, branch of a bank or financial institution, retail store, automotive service station, or restaurant. Despite the above, a drive-through facility does not include a car washing establishment, automobile service station, or a gas station.

(36)

"Dry cleaner" means an establishment providing dry cleaning and laundering services where dry cleaning and laundering are done on the premises. Includes the mechanical cleaning of garments, clothing articles, or goods of fabric, including a linen, diaper, or uniform laundering service. May perform work on the premises for other dry cleaning and laundry services, serve retail customers, and provide ancillary services such as tailoring.

(37)

"Dwelling, accessory" and "conversion dwelling" means a portion of a single-family dwelling converted into two separate dwelling units within the principal structure or new or existing accessory structures.

(38)

"Dwelling, mixed use" means a building with commercial, office, or similar uses on the ground floor with access at the front of the building and residential uses above the commercial, office, or similar uses and with residential access only at the side or rear of the building. No residential uses are on the ground floor.

(39)

"Dwelling, multi-family" means a building containing three or more dwelling units.

(40)

"Dwelling, single-family" means a detached building designed for and occupied exclusively as a residence for only one family or by two families where accessory dwellings and conversion dwellings are permitted.

(41)

"Dwelling, two-family" means a detached building designed for and occupied exclusively as a residence by no more than two families.

(42)

"Educational institution" means a college or university giving general academic instruction. Included within this term are areas or structures used for administration, housing of students and faculty, dining halls, and social or athletic activities when located on the institution's land that is not detached from where classroom facilities are maintained.

(43)

"Emergency shelter" means a residential facility that provides room and board for a temporary period, protection, counseling, and pre-placement screening for abused, displaced, or transient adults or children.

(44)

"Equipment rental/repair" means an establishment involved in renting or repairing small tools and equipment, including janitorial equipment.

(45)

"Essential utilities and equipment" means underground or overhead electrical, gas, communications not regulated by the Federal Communications Commission, water and sewage systems, including pole structures, towers, wires, lines, mains, drains, sewers, conduits, cables, fire alarm boxes, public telephone structures, police call boxes, traffic signals, hydrants, regulating and measuring devices and the structures in which they are housed, and other similar equipment accessories in connection therewith.

(46)

"Event, mass gathering" means an event, as defined herein, resulting in the assemblage of more than five hundred persons on any one parcel or any special event, as defined herein, where camping or overnight lodging are offered.

(47)

"Event, special" means an event, as defined herein, resulting in the assemblage of fifty to five hundred persons; the arrival of twenty-five or more vehicles at the location of the event, whether held on private property, public property, or public roads; and any events with a significant emphasis on the sale, marketing, or promotion of products or services to be consumed, utilized, or provided off the premises, except for temporary uses permitted under section 27-66 of this Code.

(48)

"Extractive industry" means a heavy industry use that involves the extraction of minerals for sale or other commercial purpose, including solids, such as coal and ores; liquids, such as crude petroleum; and gases, such as natural gases. The term also includes quarrying; well operation; milling, such as crushing, screening, washing, and flotation; and other preparation customarily done at the extraction site or as a part of the extractive activity.

(49)

"Factory-built home" means manufactured and mobile homes.

(a)

"Manufactured home" means a home that meets the National Manufactured Housing Construction and Safety Standards Act of 1974 (42 U. S. C. § 5401, et seq.), effective on the fifteenth day of June, one thousand nine hundred seventy-six, and the federal manufactured home construction and safety standards and regulations promulgated by the secretary of the United States Department of Housing and Urban Development.

(b)

"Mobile home" means a transportable structure that is wholly, or in substantial part, made, fabricated, formed or assembled in manufacturing facilities for installation or assembly and installation on a building site and designed for long-term residential use and built prior to enactment of the Federal Manufactured Housing Construction and Safety Standards Act of 1974 (42 U. S. C. § 5401, et seq.), effective on the fifteenth day of June, one thousand nine hundred seventy-six, and usually built to the voluntary industry standard of the American National Standards Institute (ANSI)—A119.1 standards for mobile homes.

(50)

"Factory-built home rental community" means a parcel of land under single or common ownership upon which two or more factory-built homes are located on a continual, nonrecreational basis together with any structure, equipment, road, or facility intended for use incidental to the occupancy of the factory-built homes, but does not include premises used solely for storage or display of uninhabited factory-built homes or premises occupied solely by a landowner and members of their family.

(51)

"Fairground" means an area of land used for fairs in accordance with local and state requirements, exhibitions, and shows, including but not limited to animal shows and judging, carnivals, circuses, concerts, food booths and stands, games, rides, rodeos, sales and auctions, storage, racetracks, agricultural-related office buildings, and community meeting or recreational buildings and uses.

(52)

"Farm" means the raising of crops or livestock, including orchards, vineyards, or nurseries, along with any buildings or structures necessary to conduct such activities.

(53)

"Farm/construction equipment and supply sales" means an establishment engaged in the on-premises lease, rental, or retail sale of new or used construction or farm equipment, with or without incidental service for minor repairs and maintenance.

(54)

"Farmer's market" means the offering for sale of agricultural products directly to the consumer at an open-air market designated as a community activity.

(55)

"Flea market" means an outdoor or enclosed commercial activity, open to the general public that offers goods for sale, trade, or barter, regardless of whether they are new, used, antique, or homemade.

(56)

"Freight terminal" means any premises and buildings where cargo is stored and where railroad cars or trucks load and unload cargo for shipment or distribution and that may include facilities for temporary storage of loads prior to shipment and facilities for the maintenance of transport vehicles.

(57)

"Funeral home/mortuary" means a building or part thereof used for human funeral services. Such building may contain space and facilities for (a) embalming and the performance of other services used in the preparation of human remains for burial or disposition of human remains; including cremation (b) the performance of autopsies and other surgical procedures related to the processing of human remains; (c) the storage of caskets, funeral urns, and other related funeral supplies; (d) the storage of funeral vehicles; and (e) facilities for cremation.

(58)

"Garage, commercial" means a garage conducted as a business, that includes but is not limited to the rental of storage space for more than two automobiles or for one commercial vehicle not owned by a person residing on the premises.

(59)

"Garage, community" means a group of private garages, detached or under one roof, arranged in a row or around a common means of access and erected for use of residents in the immediate vicinity.

(60)

"Garden center" means an establishment primarily engaged in selling containerized trees, shrubs, other plants, seeds, bulbs, mulches, soil conditioners, fertilizers, pesticides, garden tools, and other garden supplies to the general public and where no trees, shrubs, or plants are grown on the premises.

(61)

"Gas station" means a building, place of business, land area, or other premises, or portion thereof, used or intended to be used for the retail dispensing of gasoline, oil and grease, and other vehicle fuels, and including, as an accessory use, the sale and installation of batteries, tires, lubricants, and other automobile accessories and retail items. Minor repair service may also be rendered. May also offer convenience goods for sale, such as prepackaged or limited prepared food items, tobacco, and periodicals, except that the term does not include display of merchandise or products outdoors except where such display is required to sell the merchandise.

(62)

"Governmental operations" include emergency services; federal, state, or municipal buildings; and post offices. Emergency services include areas utilized for the maintenance, fueling, storage, receiving and dispatching calls or transmissions, or parking of vehicles or equipment providing rescue or ambulatory services.

(63)

"Greenhouse, commercial" means a building used for the growing of plants, all or part of which are sold at retail or wholesale.

(64)

"Greenhouse, noncommercial" means an accessory building or structure under one hundred and fifty square feet in gross floor area, constructed chiefly of glass, glasslike, or translucent material, cloth, or lath, and devoted to the protection or cultivation of flowers or other weather-sensitive plants.

(65)

"Group residential facility" means a facility that is owned, leased, or operated by a behavioral health service provider and that (1) provides residential services and supervision for individuals who are developmentally disabled or behaviorally disabled; (2) is occupied as a residence by not more than eight individuals who are developmentally disabled and not more than three supervisors or is occupied as a residence by not more than twelve individuals who are behaviorally disabled and not more than three supervisors; (3) is licensed by the Department of health and human resources; and (4) complies with the state fire commission for residential facilities.

(66)

"Group residential home" means a building owned or leased by developmentally disabled or behaviorally disabled persons for purposes of establishing a personal residence. This includes a place for transitional group living arrangements for persons discharged from hospitals, correctional facilities, or in lieu of hospitalization, characterized by the presence of such live-in staff, emphasizing the development of skills necessary for more independent living. The facility shall be licensed and operated in accordance with all applicable laws.

(67)

"Health club" means a building or portion of a building designed and equipped for sports, exercise, or other customary and usual recreational activities, operated for profit. The sale of sports nutrition products, non-alcoholic beverages, packaged health foods, exercise clothing, and sports videos and magazines is permitted as an accessory use to such facilities.

(68)

"Home-based business" means an accessory use intended to allow commercial enterprises that generate limited numbers of customer visits or merchandise deliveries to a residential dwelling. Use involves limited customer, client, or patient traffic, whether vehicular or pedestrian, pickup, delivery, or removal functions to or from the premises, in excess of those normally associated with the use of a dwelling.

(69)

"Hospital" means an institution designed for the diagnosis, treatment, and care of human illness or infirmity and providing health services, primarily for inpatients, and including related facilities, laboratories, outpatient departments, training facilities, and staff offices.

(70)

"Hotel/motel" means a building or group of buildings in which lodging is provided and offered for compensation. The building may also include dining rooms, kitchens, serving rooms, ballrooms, and other facilities and services intended primarily for the accommodation of its patrons.

(71)

"Industrial park" means an area of land arranged or constructed in accordance with a plan for a group of business purposes, having separate building sites designed and arranged on streets and having utility services, setbacks, side yards, and covenants or other such regulations controlling or restricting uses.

(72)

"Laboratory" means a facility equipped for experimental study in a science or for testing and analysis; a facility providing opportunity for research, experimentation, observation, or practice in a field of study.

(73)

"Liquor store" means an establishment operated under the authority of the West Virginia Code, Chapter 60, Article 3A, and primarily engaged in the retail sale of packaged alcoholic beverages such as ale, beer, wine, or whiskey, for off-premises consumption.

(74)

"Lumberyard" means an establishment where processed wood timbers and products are stored for bulk and retail sale.

(75)

"Manufacturing (heavy)" means the manufacturing or compounding process of raw materials. These activities or processes would necessitate the storage of large volumes of highly flammable, toxic matter or explosive materials needed for the manufacturing process. These activities may involve outdoor operations as part of the manufacturing process.

(76)

"Manufacturing (light)" means the manufacturing, compounding, processing, assembling, packaging, printing, or testing of goods or equipment, including but not limited to newspaper printing and distribution and research activities conducted entirely within an enclosed structure, with no outside storage, serviced by a modest volume of trucks or vans, and imposing a negligible impact on the surrounding environment by noise, vibration, smoke, dust, or pollutants.

(77)

"Marina" means a business or recreational facility engaged in the secure mooring of boats, including facilities for storage and repair of boats and sale of boating supplies and fuel.

(78)

"Medical adult day care center" means an ambulatory health care facility that provides an organized day program of therapeutic, social, and health maintenance and restorative services and whose general goal is to provide an alternative to twenty-four hour long term institutional care to elderly or disabled adults who are in need of such services by virtue of physical and mental impairment.

(79)

"Medical cannabis dispensary" means a place where processed medical cannabis products are permitted to be sold to qualifying consumers, as provided for in the Code of the State of West Virginia, Chapter 16A, as amended. This term does not include a health care medical cannabis organization as defined in the Code of the State of West Virginia, Chapter 16A, as amended.

(80)

"Medical cannabis growing facility" means a place where medical cannabis is permitted to be grown, as provided for in the Code of the State of West Virginia, Chapter 16A, as amended. This term does not include a health care medical cannabis organization as defined in the Code of the State of West Virginia, Chapter 16A, as amended.

(81)

"Medical cannabis organization, health care" means a vertically integrated health system approved by the West Virginia Bureau for Public Health to dispense medical cannabis or grow and process medical cannabis, or both, in accordance with a research study under the Code of the State of West Virginia, Chapter 16A, as amended.

(82)

"Medical cannabis processing facility" means a place where medical cannabis is permitted to be processed, refined, or otherwise converted into a legally permitted state, as provided for in the Code of the State of West Virginia, Chapter 16A, as amended. This term does not include a health care medical cannabis organization as defined in the Code of the State of West Virginia, Chapter 16A, as amended.

(83)

"Night club" means an establishment for evening entertainment, generally open until the early morning that serves liquor and usually food and offers patrons music, comedy acts, a floor show, or dancing but is not characterized as a forum for sexually oriented material.

(84)

"Off-premises, freestanding sign," means a commercial sign not accessory to or associated with the principal use on a lot or a sign that is the principal use of a lot, attached only to its own support structures consisting of one or more columns, uprights, or braces in or upon the ground, with at least eight feet between the lowest component of the sign face and the ground beneath the sign.

(85)

"Office supply establishment" means a place of business where stationary, furniture, and other supplies typically used in offices are the main items offered for sale.

(86)

"Parcel delivery facility" means an establishment engaged in the delivery, receipt, and transmittal of documents, packages, and parcels.

(87)

"Park" means land set aside for open space and recreational purposes.

(88)

"Parking lot" means a principal use consisting of an off-street surfaced area used for parking two or more vehicles that is served by an entrance and possibly an access way connecting the parking lot and a public or private road, but does not include parking for a single-family or two-family dwelling.

(89)

"Pawn shop" means any business that loans money on deposit of personal property or deals in the purchase or possession of personal property on condition of selling the same back again to the pledger or depositor, or loans or advances money on personal property by taking chattel mortgage security thereon, and takes or receives such personal property.

(90)

"Personal service" means a business providing services to a person, their apparel or personal effects commonly carried on or about their person, including, but not limited to, shoe repair, tailoring, watch repair, beauty shops, barber shops, tanning and nail salons, laundromats, and dry cleaning and laundering drop-off and pick-up services where dry cleaning and laundering are not done on the premises.

(91)

"Pet shop" means an establishment where animals are bought, sold, exchanged, or offered for sale or exchange to the general public.

(92)

"Pharmacy" means an establishment in which prescription or nonprescription drugs or devices are compounded, dispensed, or distributed. Ancillary retail items also may be sold.

(93)

"Photographic studio" means a retail establishment for the purpose of photographing subjects and processing photographs for commercial purposes, but not including photography requiring professional models.

(94)

"Places of worship/religious institution" means a building wherein persons regularly assemble for acts of religious devotion and that is maintained and controlled by a religious body organized to sustain public worship, together with all accessory buildings and uses customarily associated with such primary purpose. Includes a church, synagogue, temple, mosque, or other places for worship and religious activities. Customary accessory uses include a wide range of religious activities, including a caretaker's residence; fellowship halls, parish halls, and similar buildings; rooms used for meetings, religious education, and similar functions; a gymnasium; a playground; the sale of items associated with the practice of religion; and faith-based social services such as homeless shelters, group homes, and soup kitchens.

(95)

"Private club" means any corporation or unincorporated association meeting the definition of private club in West Virginia Code Section 60-7-2(a), and licensed and in compliance with West Virginia Code, Chapter 60, Article 7, to sell liquor, beer, and wine.

(96)

"Professional services" means any office of recognized professions, other than medical, such as lawyers, architects, engineers, real estate brokers, insurance agents, and others who are qualified to perform services of a professional nature and other offices used primarily for accounting, corresponding, research, editing, or other administrative functions, but not including banks or other financial institutions and personal services.

(97)

"Reception facility" means a facility within an existing structure or outdoor area for hosting receptions or similar activities, limited only to weddings, wedding receptions, birthday events, anniversary events, reunion events, and family gatherings, and not involving charging admission or held primarily to view a performance.

(98)

"Recreation, private" means an enterprise operated by an individual or non-profit association or corporation, other than a public entity, for the pursuit of sports and recreational activities, including but not limited to such establishments as country clubs, golf courses, sports clubs, golf practice facilities, playing fields, tennis or racquet clubs, swimming pools, and similar facilities.

(99)

"Recreation, public" means an enterprise owned and operated by a public entity, available to the general public, whether or not an admission fee is charged, including either indoor or outdoor facilities for the pursuit of sports, recreation, or leisure activities, including but not limited to marinas, parks, playgrounds, playing fields, fishing access, golf courses, golf or batting practice facilities, tennis courts, swimming pools, and similar facilities.

(100)

"Research and development" means investigative activities a business conducts to improve existing products or services or to lead to the creation of new products and procedures that do not involve the mass manufacture, fabrication, processing, or sale of products; or a structure or complex of structures designed or used primarily for research development functions related to industry and similar fields of endeavor.

(101)

"Restaurant" means a commercial establishment with an equipped kitchen where food and beverages are prepared and served to be consumed primarily on the premises or served in ready to consume individual servings, for consumption either within the restaurant building or for carry out; and where food sales constitute more than sixty percent of the gross sales receipts.

(102)

"Retail store" means a business having as its primary function the supply of merchandise or wares to the end consumer. Such sales constitute the "primary function" of the business when sales equal at least eighty percent of the gross sales of the business.

(103)

"Roadside vendor stand" means a location, trailer, truck bed, or similar facilities offering agricultural products for sale that are not produced on the immediate premise.

(104)

"School, commercial" means an educational establishment to provide for the teaching of industrial, clerical, managerial, or artistic skills. This definition applies to educational establishments that are owned and operated privately for profit.

(105)

"School, preschool to 12" means an educational establishment offering educational instruction between preschool through twelfth grade. Schools can be public or private, licensed in accordance with the West Virginia Code.

(106)

"Self-storage facility" means a building or group of buildings containing separate, individual, and private storage spaces of varying sizes available for lease or rent for varying periods of time.

(107)

"Senior independent housing" means a single-family or multi-family development intended for, operated for, and designed to accommodate residents fifty-five years of age or older. Senior independent housing communities are designed for seniors who are able to live independently or need assistance with daily care.

(108)

"Sewage treatment facility" means a facility designed to receive the wastewater from both residential and nonresidential sources and to remove materials that damage water quality and threaten public health and safety when discharged into receiving streams or bodies of water.

(109)

"Shooting range, commercial indoor" means an area within an enclosed building used for the discharge of firearms, such as rifles, shotguns, pistols, skeet, trap, black powder, or other similar items, provided that a fee is charged for use of the premises to discharge firearms. Gun clubs and other organizations that charge a monthly or annual membership fee or fee for one-time use shall be included in the definition of a commercial indoor shooting range regardless of whether the club is operated for profit.

(110)

"Shooting range, commercial outdoor" means an area of land designed for the discharge of firearms, such as rifles, shotguns, pistols, skeet, trap, black powder, or other similar items, provided that a fee is charged for use of the premises to discharge firearms. Gun clubs and other organizations that charge a monthly or annual membership fee or fee for one-time use are included in the definition of a commercial outdoor shooting range regardless of whether the club is operated for profit.

(111)

"Shooting range, noncommercial indoor" means an area within an enclosed building used for the discharge of firearms, such as rifles, shotguns, pistols, skeet, trap, black powder, or other similar items, for use by the property owner, family members, or persons authorized by the property owner on a noncommercial basis.

(112)

"Shooting range, noncommercial outdoor" means land designed for the discharge of firearms, such as rifles, shotguns, pistols, skeet, trap, black powder, or other similar items, for use by the landowner, family members, or persons authorized by the landowner on a noncommercial basis.

(113)

"Shopping center" means a group of retail and other commercial establishments that is planned, owned, and managed as a single property.

(114)

"Small wireless facility" or "wireless telecommunications facility, small cells" means a wireless facility that meets both of the following qualifications: each antenna does not exceed six cubic feet; and all other wireless equipment associated with the facility is cumulatively no more than twenty-eight cubic feet in volume. The following types of associated ancillary equipment are not included in the calculation of equipment volume: electric meter, concealment elements, telecommunications demarcation box, ground-based enclosures, grounding equipment, power transfer switch, cut-off switch, and vertical cable runs for the connection of power and communications services.

(115)

"Solar energy system" means an energy conversion system, including appurtenances, that converts solar energy to a usable form of energy to meet all or part of the energy or heating requirements of the on-site user, or that can incidentally be sold to a utility company to be used by others, or sold directly to other users.

(a)

"Small solar energy system, roof-mounted" means solar energy systems placed on or as an integral part of a building and installed for personal use in residences, commercial properties, and institutions.

(b)

"Small solar energy system, ground-mounted" means solar energy systems placed on top of the ground surface and installed for personal use in residences, commercial properties, and institutions.

(c)

"Large solar energy system" means solar energy systems installed on large parcels of land for the purpose of generating revenue or utility-scale systems installed to benefit the community or an entire institution.

(116)

"Sports arena" means a central stage, ring, area, or the like, used for sports and surrounded by seats for spectators.

(117)

"Studio, dancing, music, or art" means a facility used for the rehearsal or performance of performing arts, such as music, dance, or theatre; teaching classes in creative arts, such as painting, drawing, sculpting, potting, or beading or otherwise creating art; or for the display or sale of art in general or during special events. Food and alcoholic beverages may be served and fees charged as accessory uses during special events.

(118)

"Tattoo parlor/body piercing studio" means an establishment whose principal business activity, either in terms of operation or as held out to the public, is the practice of one or both of the following: (1) placing of designs, letters, figures, symbols, or other marks upon or under the skin of any person, using ink or other substances that result in the permanent coloration of the skin by means of the use of needles or other instruments designed to contact or puncture the skin; (2) creation of an opening in the body of a person for the purpose of inserting jewelry or other decoration.

(119)

"Tavern/drinking establishment/bar" means an establishment engaged in the preparation and retail sale of alcoholic beverages for consumption on the premises and that may offer food for consumption on premises as an ancillary use.

(120)

"Theater" means a building or part of a building devoted to presenting motion pictures or live performances.

(121)

"Truck terminal" means a facility where freight is unloaded from interstate trucks or intermodal trailers and containers carried on the railroad and loaded onto local delivery trucks.

(122)

"Urban agriculture" means an accessory use involving land used for beekeeping, community gardens, and other small-scale agricultural activities not including fowl or livestock.

(123)

"Vehicle repair/service/sales/rental" means any building, structure, improvements, or land used for the repair or maintenance of automobiles, motorcycles, trucks, trailers, or similar vehicles including but not limited to body, fender, muffler or upholstery work, oil change and lubrication, painting, tire service and sales, or installation of CB radios, car alarms, stereo equipment, or cellular telephones.

(124)

"Video gaming or lottery establishment" means an establishment at which any form of gambling of chance is permitted or played, including "video lottery" machines licensed by the West Virginia Lottery Commission pursuant to the West Virginia Code, but excluding establishments that only sell lottery tickets.

(125)

"Warehouse" means a facility characterized by extensive warehousing, frequent heavy trucking activity, open storage of material, or nuisances such as dust, noise, and odors, but not involved in manufacturing or production.

(126)

"Water treatment plant" means facilities that treat water and produce potable water for public consumption.

(127)

"Wholesale establishment" means the sale of commodities to retailers or jobbers, including the sale of commodities for the purpose of carrying on any trade or business even if the said trade or business is the consumer or end user of the commodity.

(128)

"Wind energy system" means any electric generation facility whose main purpose is to convert and store wind energy into usable forms of energy; includes wind turbines, structural supports, electrical infrastructure, and other appurtenant structures and facilities. Consisting of a maximum of one wind turbine per parcel of land.

(129)

"Winery" means an establishment where wine is manufactured or in any way prepared in accordance with the West Virginia Code.

(130)

"Wireless telecommunications facility" means equipment at a fixed location that enables wireless communications between user equipment and a communications network, including: equipment associated with wireless communications; and radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration; any structure, antenna, tower, base station, or other device that provides or is suitable to provide radio/television transmission, commercial mobile wireless telecommunication services, cellular phone services, specialized mobile radio communications (SMR), broadband telecommunications services, common carrier wireless telecommunication exchange phone services, and personal communications service (PCS) or pager service. Wireless facility includes small wireless facilities. "Wireless facility" does not include the structure or improvements on, under, or within which the equipment is collocated; wireline backhaul facilities; coaxial or fiber-optic cable that is between wireless support structures or utility poles; or coaxial or fiber-optic cable that is otherwise not immediately adjacent to, or directly associated with, an antenna. The following are not wireless telecommunication facilities for purposes of this Ordinance:

(a)

"Emergency wireless telecommunications facility" means wireless telecommunication facilities exclusively for emergency communications.

(b)

"Amateur (ham) radio stations" means any antenna of less than one hundred feet in height owned and operated exclusively by an amateur radio operator licensed by the Federal Communications Commission (FCC).

(c)

"Temporary wireless telecommunications facility" means a wireless telecommunications facility either operational or in operation for a maximum period of one hundred and twenty calendar days per calendar year within the jurisdiction.

(d)

"Antennas as accessory uses" means an antenna that is an accessory use to a residential dwelling unit.

(Ord. of 5-9-2023)

(1)

"Abandonment" means the relinquishment of property or a cessation of the use of the property by the owner or lessee without any intention of transferring rights to the property to another owner within one year or without any intention to resume a nonconforming use of the property for a period of one year.

(2)

"Abandoned motor vehicle" means any motor vehicle, or major part thereof, that is inoperative and that has been abandoned on public property for any period over five days, other than in an enclosed building or in a licensed salvage yard or at the business establishment of a demolisher; or any motor vehicle, or major part thereof, that has remained on private property without consent of the owner or person in control of the property for any period over five days; or any motor vehicle, or major part thereof, that is unattended, discarded, deserted and unlicensed and is not in an enclosed building, a licensed salvage yard or the actual possession of a demolisher: Provided, That a motor vehicle, or major part thereof, is not an abandoned motor vehicle if: (a) The owner of the motor vehicle is storing the motor vehicle on the owner's property; (b) the motor vehicle is being stored for the purpose of using its parts on other motor vehicles owned by the owner; (c) the owner owns other motor vehicles similar to the motor vehicle being stored; and (d) the owner is a business licensed to do business in the State of West Virginia and not in the primary business of offering motor vehicles or parts thereof for sale.

(3)

"Access way" means a private vehicular facility for townhomes, multi-family dwellings, and condominiums, serving more than four dwelling units, and commercial developments that extends from the curb line extended of a public or private road to the parking lot.

(4)

"Accessory structure" or "accessory building" means a structure or building on the same lot with, and of a nature customarily incidental and subordinate to, the principal use or structure, including but not limited to signs, swimming pools, piers and other water-related structures, parking, fences, gazebos, satellite dishes, doghouses and dog-related structures, noncommercial greenhouses, sheds, and private garages.

(5)

"Accessory use" means a use on the same lot with, and of a nature customarily incidental and subordinate to, the principal use, including but not limited to home-based businesses.

(6)

"Aggrieved or aggrieved person" means a person who (1) is denied by the planning commission, board of subdivision and land development appeals, or the board of zoning appeals, in whole or in part, the relief sought in any application or appeal; or (2) has demonstrated that he or she will suffer a peculiar injury, prejudice, or inconvenience beyond that which other residents of the municipality may suffer.

(7)

"Agricultural operation" means an enterprise that is actively engaged in the commercial production and preparation for market of crops, livestock, and livestock products and in the production, harvesting, and preparation for market or use of agricultural, agronomic, horticultural, silvicultural and aquacultural crops and commodities. The term includes an enterprise that implements changes in production practices and procedures or types of crops, livestock, livestock products or commodities produced consistent with practices and procedures that are normally engaged by farmers or are consistent with technological development within the agricultural industry.

(8)

"Agritourism" means the practice of combining tourism and agriculture. It is a type of commercial enterprise that combines agricultural production or processing with tourism in order to attract visitors onto a farm or other agricultural enterprise for the purposes of entertaining or educating the visitors and generating income for the farm or agricultural based business owner. It is accessory to an active principal agricultural operation. (Separate definition for breweries, wineries, and distilleries.)

(9)

"Alley" means a service roadway less than twenty feet providing a secondary means of access to abutting property and not intended for general traffic circulation.

(10)

"Alteration" means any change or expansion in the size, configuration, exterior features, or location of a structure; or any change or expansion in the use of a structure or lot from a previously approved or legally existing size, configuration, location, or use.

(11)

"Alternative support structure" means man-made trees, clock towers, steeples, light poles, flag poles, power transmission towers, buildings, signs, and similar alternative design mounting structures that partially or fully camouflage or conceal the presence of antennas or towers.

(12)

"Antenna" means communications equipment that transmits or receives electromagnetic radio frequency signals used in the provision of wireless services.

(13)

"Antenna support structure" means any building or structure other than a tower that can be used for location of telecommunications facilities.

(14)

"Automobile" means a road vehicle, typically with four wheels, able to carry a small number of people.

(15)

"Basement" means a story having one-half or more of its clear height below grade.

(16)

"Base station" means the structure or equipment at a fixed location that enables wireless telecommunications licensed or authorized by the FCC, between user equipment and a communications network.

(a)

Includes, but is not limited to, equipment associated with wireless telecommunications services, such as private, broadcast, and public safety services, as well as unlicensed wireless telecommunication services and fixed wireless telecommunication services, such as microwave backhaul.

(b)

Includes, but is not limited to, radio transceivers, antennas affixed to the base station, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration (including distributed antenna systems and small-cell networks).

(c)

Includes any structure other than a tower that, at the time an eligible facilities modification application is filed with the City of Montgomery, supports or houses equipment described in paragraphs (i) and (ii) above, and that has been reviewed and approved under the applicable zoning or siting process, or under another state or local regulatory review process, even if the structure was not built for the sole or primary purpose of providing such support.

(d)

Does not include any structure that, at the time a completed eligible facilities modification application is filed with the City of Montgomery under this article, does not support or house equipment described in paragraphs (i) and (ii) above.

(e)

The term does not encompass a "tower" as defined in this section, or any equipment associated with a tower.

(17)

"Board" or "board of zoning appeals" means the officially constituted body appointed to carry out duties and responsibilities in accordance with the West Virginia Code, Chapter 8A, Article 8, et seq., as amended.

(18)

"Bollard" means a short, vertical, and permanent post, usually ornamental in nature, used to inhibit trespass by persons or vehicles, or to prevent encroachment onto private property or other defined space.

(19)

"Brewery" means a state licensed establishment where intoxicating or nonintoxicating beer is manufactured or in any way prepared and may include a tasting facility as defined in this Ordinance. Facilities are subject to federal, state, and local regulations and guidelines.

(20)

"Building" means any structure having enclosing walls and roofs and requiring a permanent location on the land.

(a)

"Building frontage" means the length of the main wall of a building that physically encloses usable interior space and that is the architecturally designed wall that contains the main entrance for use by the general public. Said frontage is measured at a height of ten feet above grade.

(b)

"Building, height of" means the vertical distance measured from the level of approved street grade opposite the middle of the front of the building to the highest point of the coping of a flat roof; to the deck line of a mansard roof; and to the mean height level between eaves and ridge of gable, hip, or gambrel roof.

(21)

"Building setback line" means a line establishing the minimum allowable distance between the nearest part of any principal building, including decks, patios, covered porches, steps, and landings exceeding twenty-four square feet, but excluding eaves, overhangs, bay windows, sills, belt courses, cornices, and ornamental features not exceeding two feet in width, to the nearest edge of a street right-of-way, property line, or easement line, when measured perpendicular thereto. "Camouflage" or "conceal" or "concealment" or "stealth" means having similar design and coloration features as the surrounding environment, utility pole, or building.

(22)

"Centerline" means an imaginary line running parallel to street or easement right-of-way lines and equidistant from the lines on each side of the street or easement, or a line following the center of a physical feature such as a stream.

(23)

"Cidery" means a state licensed establishment where intoxicating or nonintoxicating cider is manufactured or in any way prepared for commercial (not solely personal) use. These establishments are licensed under the winery provisions by the WVABC.

(24)

"City of Montgomery utility pole" means a utility pole owned or operated by the City of Montgomery in a public right-of-way.

(25)

"Clear sight triangle" means the triangular area formed by intersecting street, alley, or other public right-of-way centerlines and a line interconnecting points established on each centerline, seventy-five feet from the point of intersection and the plane established three and one-half feet in elevation to a height of ten feet from grade level at the intersection of the street, alley, or other public right-of-way centerline.

(26)

"Collapse zone" means an area where a tower may collapse based on the site and design specifications and which is certified and stamped by an engineer licensed in the State of West Virginia.

(27)

"Collocate" or "collocation" means to install, mount, maintain, modify, operate, or replace wireless facilities on or adjacent to a wireless support structure or utility pole.

(28)

"Communications facilities" means the set of equipment and network components, including wires, cables, antennas, and associated facilities, used by a communications service provider to provide communications service.

(29)

"Communications service" means cable service, as defined in 47 U.S.C. § 522(6), as amended; information service, as defined in 47 U.S.C. § 153(24), as amended; telecommunications service, as defined in 47 U.S.C. § 153(53), as amended; mobile service, as defined in 47 U.S.C. § 153(33), as amended; or wireless service other than mobile service.

(30)

"Communications service provider" means any entity that provides communications service.

(31)

"Compact parking stall" an off-street space available for parking of one automobile and having an area not less than eight feet in width by eighteen feet in depth and an area exclusive of passageways, access ways, and driveways appurtenant thereto, and having a means to direct access to a street or road.

(32)

"Comprehensive plan" means the comprehensive plan for the City of Montgomery.

(33)

"Conceal" or "concealment" means when an antenna, small wireless facility, decorative pole, utility pole, or related equipment are designed to look like a feature other than a small wireless facility and which has similar design and coloration features as the surrounding environment.

(34)

"Conditional use" means a use that because of special requirements or characteristics may be permitted in a particular zoning district only after review by the board of zoning appeals and upon issuance of a conditional use permit, and subject to the limitations and conditions specified in this Code.

(35)

"Decorative pole" means a City of Montgomery utility pole that is specially designed and placed for aesthetic purposes and on which no appurtenances or attachments, other than a small wireless facility, specially designed informational or directional signage, or temporary holiday or special event attachments have been placed, or are permitted to be placed, according to nondiscriminatory municipal rules or codes.

(36)

"Driveway" means privately owned vehicular access from a street to properties abutting the street and serving no more than four dwelling units.

(37)

"Dwelling" means a house, apartment building, or other building designed or used primarily for human habitation, but not including bed and breakfast inns, motels, hotels, or other structures designed for transient residence.

(38)

"Dwelling unit" means any dwelling or portion thereof used or intended to be used by one family and providing complete housekeeping facilities.

(39)

"Eligible facilities request" means a request for modification of an existing tower or base station that does not substantially change the physical dimensions of such tower or base station involving: collocation of new transmission equipment, removal of transmission equipment, or replacement of transmission equipment.

(40)

"Eligible support structure" means any tower or base station, as defined in this section, provided that such tower or base station is in existence at the time the eligible facilities request application is filed with the City of Montgomery.

(41)

"Equipment cabinet" means an enclosure, room, shelter, structure, or building used to encapsulate, enclose, contain or otherwise support equipment associated with a wireless telecommunication facility.

(42)

"Event" means a planned public or social occasion, including but not limited to activities such as community fairs, carnivals, parades, horse shows, horse trials, dog shows, sporting events, music or art festivals, and holiday celebrations. Excluded from the definition of events and from the regulations of this Code, are the following: any event sponsored by the Armed Forces of the United States or the State of West Virginia; any event sponsored by the forces of state or local police or fire departments; any event sponsored by an agency of the state, county, or local government; and activities that are part of the regular operations of a principal use, such as weddings at a church, annual fund raising or social events at a grange, and typical accessory events at educational, scientific, or institutional sites.

(43)

"Existing tower or base station" means a lawfully constructed tower or base station approved under the applicable zoning and siting process of the City of Montgomery, approved under another state or local regulatory review process, or permitted to continue to operate as a nonconforming use.

(44)

"Existing use" means use of land, buildings or activity permitted or in existence prior to the adoption of a zoning map or ordinances by the county or municipality. If the use is nonconforming to local ordinance and lawfully existed prior to the adoption of the ordinance, the use may continue to exist as a nonconforming use until abandoned for a period of one year, provided that in the case of natural resources, the absence of natural resources extraction or harvesting is not abandonment of the use.

(45)

"FAA" means the Federal Aviation Administration, or its lawful successor.

(46)

"Family" means an individual or two or more persons related by blood, marriage, adoption, or foster relationship, or no more than three unrelated individuals and individuals related by blood, marriage, adoption, or foster relationship to any of those three unrelated individuals, living together as a single, permanent, and stable nonprofit housekeeping unit and sharing common living, dining, and kitchen areas, subject to the requirements of the building code.

(47)

"Fence" means an artificially constructed barrier of wood, masonry, stone, wire, metal, or other manufactured material or combination of materials erected to enclose, screen, or separate an area.

(48)

"FCC" means the Federal Communications Commission of the United States.

(49)

"Fee" means a one-time, nonrecurring charge.

(50)

"Floor area, gross" means the total area of a building measured by taking the outside dimensions of the building at each floor level.

(51)

"Front building line" means a line parallel to the front lot line, at a distance measured perpendicular therefrom as prescribed in this Code for a required yard. Where there is no required yard, the lot line is the front building line

(52)

"Garage sale" means a temporary use involving the sale of personal property owned or maintained by occupants of the premises in, at, or upon any residentially zoned or residentially occupied property. "Garage sales" includes, but is not limited to, any yard sale, multi-family sale, home sale, patio sale, or any other sale similarly conducted on any residentially zoned or residentially occupied property.

(53)

"Height" for the purposes of wireless telecommunications facilities means the vertical distance measured from the base of the alternative support structure at grade to the highest point of the structure, including any antennas. Measurement of tower height includes antenna, base pad, and other appurtenances and is measured from the finished grade of the facility site. If the tower is located on a sloped grade, then the average between the highest and lowest grades immediately surrounding the perimeter of the tower base is used in calculating the antenna height. The highest point excludes farm building components, flagpoles, chimneys, ventilators, skylights, domes, water towers, bell towers, church spires, processing towers, tanks, bulkheads, or other building accessory features usually erected at a height greater than the main roofs of buildings.

(54)

"Historic district" means a geographically definable area, designated as historic on a national, state, or local register, possessing a significant concentration, linkage, or continuity of sites, buildings, structures, or objects united historically or aesthetically by plan or physical development.

(55)

"Historic landmark" means a site, building, structure, or object designated as historic on a national, state, or local register.

(56)

"Historic site" means the location of a significant event, a prehistoric or historic occupation or activity, or a building or structure whether standing, ruined, or vanished, where the location itself possesses historic, cultural, or archaeological value regardless of the value of any existing structure and designated as historic on a national, state, or local register.

(57)

"Landscaping" means the bringing of the soil surface to a smooth finished grade, installing trees, shrubs, ground cover, grass, and similar vegetation to soften building lines, provide shade, and generally produce a pleasing visual effect of the premises.

(58)

"Loading space" means an area or berth available for the loading or unloading of goods from commercial vehicles.

(59)

"Lot" means a parcel of land with boundaries established by some legal instrument, such as a recorded deed or a recorded map, and that is recognized as a separate legal entity for purposes of transfer of title, together with the customary accessories and open spaces belonging to the same.

(60)

"Lot, corner" means a lot at the junction of and abutting two or more intersecting streets.

(61)

"Lot, interior" means a lot other than a corner lot with only one frontage on a street.

(62)

"Lot, flag" means a lot not meeting minimum frontage requirements and where access to the public road is by a narrow, private right-of-way or driveway, or "handle."

(63)

"Lot, irregular" means a lot of such shape or configuration that technically meets the area, frontage, and width-to-depth requirements of the ordinance but has unusual elongations, angles, and curvilinear lines.

(64)

"Lot line" means the property boundary line of any lot held in single or joint ownership that divides one lot from another or from a street or any other public or private space.

(a)

"Front lot line" means, in the case of an interior lot, a line separating the lot from the street or public right-of-way; and in the case of a corner lot, a line separating the narrowest street frontage of the lot from the street.

(b)

"Rear lot line" means a lot line that is opposite and more distant from the front lot line, except corner lots have no rear lot line. In the case of an irregular lot, a line ten feet in length within the lot and parallel to and at the maximum distance from the front lot line.

(c)

"Side lot line" means any lot line other than a front or rear lot line.

(65)

"Lot, through" or "double frontage" or "reverse frontage" means a lot other than a corner lot facing on more than one street. Through lots abutting two streets may be referred to as double frontage lots.

(66)

"Lot width" means the distance measured between side lot lines, at the required building setback line. In a case where there is only one side lot line, lot width is measured between such side lot line and the opposite rear lot lines or street line.

(67)

"Medical cannabis organization" means a dispensary, grower, or processor. The term does not include a health care medical cannabis organization as defined in the Code of the State of West Virginia, Chapter 16A, as amended.

(68)

"Micro wireless facility" means a small wireless facility that is not larger in dimension than twenty-four inches in length, fifteen inches in width, and twelve inches in height and that has an exterior antenna, if any, that is no longer than eleven inches.

(69)

"Modification" or "modify" means the physical change to any existing wireless telecommunications tower or base station that may or may not be related to an eligible facilities request and that involves collocation of new transmission equipment; removal of transmission equipment; replacement of transmission equipment; or any expansion of wireless telecommunication tower or base station.

(70)

"Nonconforming building" or "nonconforming structure" means a building or structure lawfully constructed and not otherwise abandoned, existing on the effective date of this Code, on the effective date of any amendment thereto, or prior to annexation, that renders such building or structure illegal within a district, or not complying in any fashion with any of the rules, requirements, and regulations of this Code or any amendments thereto.

(71)

"Nonconforming lot" means a lot or parcel of land that was of record and lawfully established and maintained but that, because of the enactment of this Code, no longer conforms to the land use standards or use regulations of the district in which it is located.

(72)

"Nonconforming sign" means any sign that was lawfully erected, maintained, and existing on the effective date of this Code, on the effective date of any amendment thereto, or prior to annexation, that renders such existing sign illegal within a district, or not complying in any fashion with any of the rules, requirements, and regulations of this Code or any amendments thereto, or any sign that is accessory to a nonconforming use.

(73)

"Nonconforming use" means any actual and active use lawfully being made of any land, building, or structure not otherwise abandoned, existing on the effective date of this Code, on the effective date of any amendment thereto, or prior to annexation, that renders such existing use illegal within a district, or not complying in any fashion with any of the rules, requirements, and regulations of this Code or any amendments thereto.

(74)

"Nonintoxicating beer" means all natural cereal malt beverages or products of the brewing industry commonly referred to as beer, lager beer, ale, and all other mixtures and preparations produced by the brewing industry, including malt coolers and nonintoxicating craft beers with no caffeine infusion or any additives masking or altering the alcohol effect, containing at least one-half of one percent alcohol by volume, but not more than nine and six-tenths of alcohol by weight, or twelve percent by volume, whichever is greater.

(75)

"Open space" means any parcel or area of land or water essentially unimproved and set aside, dedicated, designated or reserved for public or private use or enjoyment, or for the use and enjoyment of owners and occupants of land adjoining or neighboring such open space.

(76)

"Owner" means any individual, firm, association, syndicate, estate, corporation, trust, or any other legal entity having proprietary interest in the land.

(77)

"Owner-occupied" means a person who maintains his or her principal residence by being physically present and spending the night on the property for more than two hundred eight nights of each calendar year and who is:

(a)

The sole owner of record of the property, as reflected in a deed recorded in the county clerk's office;

(b)

A tenant in common, tenant by the entirety or joint tenant with right of survivorship, as reflected in a deed recorded in the county clerk's office; or

(c)

An owner of at least twenty-five percent of a business entity shown as the owner of record, as reflected in a deed recorded in the county clerk's office. The ownership interest shall be shown by a duly executed resolution of the business entity, or such other method as determined by the zoning officer.

(78)

"Parallel parking stall" means an off-street space available for parking of one automobile and having an area not less than eight feet by twenty-two feet and an area exclusive of passageways, access ways, and driveways appurtenant thereto, and having a means to direct access to a street or road.

(79)

"Parking stall" means an off-street space available for parking one automobile and having an area not less than nine feet by twenty feet and an area exclusive of passageways, access ways, and driveways appurtenant thereto, and having a means to direct access to a street or road.

(80)

"Patio" means an area consisting of natural or man-made material constructed at or near grade level, intended for use as an outdoor living area, and not enclosed by a permanent roof or awning.

(81)

"Permitted use (use permitted by right)" means any use requiring no special action by any governmental body, agency, or staff member before the zoning permit is granted by the zoning officer, subject to all other applicable provisions of this Code.

(82)

"Personal wireless telecommunication services" means commercial mobile services, unlicensed wireless telecommunication services, and common carrier wireless telecommunication exchange access services.

(83)

"Porch" means a covered but unenclosed projection from the main wall of a building that may or may not use columns or other ground supports for structural purposes.

(84)

"Principal building" or "principal structure" means a building or structure in which is conducted the principal use of the site or lot on which it is situated. In all residential districts, a dwelling is the principal building on the lot on which it is located.

(85)

"Principal use" means the primary use of a lot by an individual, group of individuals, household, establishment, institution, or other entity.

(86)

"Public area" means any public place, public right-of-way, any parking area or right-of-way open to use by the general public, or any navigable body of water.

(87)

"Right-of-way (R-O-W)" means a strip of land occupied or intended to be occupied by a street, crosswalk, railroad, electric transmission line, oil or gas pipeline, water main, sanitary or storm sewer main, shade trees, or for another similar use.

(88)

"Satellite signal receiving station" means devices commonly parabolic in shape, mounted at a fixed point on a structure, or on rooftops, for the purpose of capturing electronic television or internet signals transmitted via satellite communication facilities and serving the same or similar function as the common television antenna. Such devices are accessory structures.

(89)

"Screening" means the use of plant materials, fencing, or earthen berms to aid in the concealment of such features as parking areas and vehicles within them, and to provide privacy between two or more different adjoining land uses.

(90)

"Setback" means the minimum distance by which any building or structure must be separated from a street right-of-way, lot line, or other physical marker.

(a)

"Front setback" means the shortest distance between the building setback line and the front lot line.

(b)

"Rear setback" means the shortest distance between the building setback line and the rear lot line.

(c)

"Side setback" means the shortest distance between the building setback line and the side lot line.

(91)

"Sign" means any device (writing, letter work or numeral, pictorial presentation, illustration or decoration, emblem, device, symbol or trademark, flag, banner or pennant, or any other device, figure or character, or delineation) with the essential purpose to communicate, designed to communicate, or where context results in communication, and such communication is aimed at persons in a public right-of-way.

(a)

"A-frame sign" means a two-faced sign with supports that are connected at the top and separated at the base with an internal angle between the two faces of no more than a forty-five degree angle, forming an "A" shape not more than four feet high. These are also referred to as "sandwich board" signs.

(b)

"Animated sign" or "moving sign" means a sign or part of a sign that is designed to rotate, move, or appear to rotate or move. Such a sign is sometimes referred to as a "moving sign." Animated signs include signs with moving graphic features such as scrolling text or images that appear to move; moving sign change features such as fly-in, wipe-off, fading, dissolving, traveling, or expanding displays or any other full message sign change taking longer than three-tenths of a second; and static electronic message displays displayed less than seven seconds. Animated signs also include signs propelled by vehicle, watercraft, or aircraft where the primary purpose of the vehicle, watercraft, or aircraft at the time of sign display is to propel the sign.

(c)

"Awning sign" or "canopy sign" means a sign placed directly on the surface of an awning or to a canopy, that is a roof-like structure either projecting from a building façade and open on three sides, or standing alone and open on four sides, and used for the purpose of protecting pedestrians and motorists from weather related elements.

(d)

"Banner" means a sign of flexible material affixed to a framework or flat surface. Banners are not flags for purposes of this Ordinance.

(e)

"Beacon" means any light with one or more beams directed into the atmosphere or directed at one or more points not on the same lot as the light source; also, any light with one or more beams that rotate or move.

(f)

"Chalkboard sign" means a single-faced, framed slate, or chalkboard that can be written on with chalk or similar markers.

(g)

"Changeable copy sign" means a sign or part of a sign that is designed so that characters, letters, or illustrations can be manually or physically changed or rearranged without altering the face or surface of the sign.

(h)

"Electronic message display" means a sign that is either light emitting or light reflective and that is capable of changing the displayed message through electronic programming. Electronic message displays are divided into four categories:

(i)

"Static electronic message display" means an electronic message display that is not an animated sign.

(ii)

"Static electronic message display with transition features" means an electronic message display that remains static except for no more than a two second transition feature such as fading, dissolving or a single instance of fly-in, wipe-off, expansion, or traveling that occurs no more often than every seven seconds.

(iii)

"Electronic message display, partially animated" means an electronic message display with animated or moving text or graphics.

(iv)

"Electronic message display, fully animated" means an electronic message display with full animation features.

(i)

"Feather sign/feather flag/teardrop flag/wind flag" means a lightweight, portable flag made of cloth, plastic, or similar material mounted along one edge on a single, vertical, flexible pole, the physical structure of which may resemble a sail, bow, or teardrop.

(j)

"Flag" means a piece of cloth or similar material, typically oblong or rectangular, attachable by one edge to a pole or rope.

(k)

"Flashing sign" means a sign that includes lights that flash, blink, turn on and off intermittently, or otherwise vary light intensity during the display of a message.

(l)

"Freestanding sign" means a sign attached only to its own support structures consisting of one or more columns, uprights, or braces in or upon the ground, with at least eight feet between the lowest component of the sign face and the ground beneath the sign.

(m)

"Geological sign" means a sign made of or that appears to be made of geological formations, including but not limited to standalone rocks or mountainsides, and conveys a message that is etched, carved, painted, or similarly incorporated into the sign's material.

(n)

"Illegal sign" means any sign erected without obtaining a required permit or that otherwise does not comply with any provision of this Code.

(o)

"Inflatable/tethered sign" means a sign that is filled with a gaseous substance to convey a message or to draw attention to a message or location.

(p)

"Marquee sign" means a sign attached to and made a part of a marquee or any similar projections from a building, with changeable, fixed, or both types of lettering in use.

(q)

"Minor sign" means a sign not exceeding two square feet in area, not exceeding four feet in height, and not illuminated.

(r)

"Monument sign" means a sign affixed to a structure built on grade in which the sign and the structure are an integral part of one another, with less than five feet between the lowest component of the sign face and the ground beneath the sign. Monument signs may contain changeable copy components. Monument signs are subject to the landscaping requirements set forth in section 27-57.

(s)

"Neon sign" means a sign containing exposed tubes filled with light-emitting gas.

(t)

"Off-premises sign" means a commercial sign not accessory to or associated with the principal use on a lot, or a sign that is the principal use of a lot.

(u)

"Pennant" means a geometric shaped flag made of flexible materials, suspended from one or two corners fastened to a string, which is secured or tethered so as to allow movement and used as an attention-getting form of media.

(v)

"Person-assisted sign" means an individual who is paid to hold, move, wear, or otherwise direct attention to a commercial sign.

(w)

"Projecting sign" means a sign attached to and projecting more than twelve inches from the face of a wall or building, but does not project above the parapet or eave line of the building and is a minimum of eight feet above any walking surface.

(x)

"Roof sign" means a sign erected or constructed, in whole or in part, upon or above the highest point of a building with a flat roof, or the lowest portion of a roof for any building with a pitched roof.

(y)

"Temporary sign" means any sign intended to be displayed for a limited period of time.

(z)

"Topiary sign" means a sign constructed of perennial plants by clipping or otherwise shaping the foliage and twigs.

(aa)

"Vehicle or trailer sign" means any sign attached to or displayed on a vehicle, if the vehicle or trailer is used primarily for displaying a commercial message and it fails to display current license plates, inspection sticker, or municipal decal; if the vehicle is inoperable; if evidence of paid-to-date local taxes cannot be made available; or if the sign alters the standard design of such vehicle or trailer.

(bb)

"Wall sign" means any sign, inscription, artwork, figure, marking, or design that is attached, painted, drawn, marked, etched, or scratched onto a wall or against a flat vertical exterior surface of a structure, including portions of doors that do not contain windows.

(cc)

"Wicket sign" means a sign with an H- or U-shaped frame that is put into the ground or placed above the ground.

(dd)

"Window sign" means any sign visible outside the window, including windows on doors, and attached to or within eighteen inches in front of or behind the surface of a window or door.

(92)

"Sign face" means the portion of a sign structure bearing the message.

(93)

"Sign structure" means any structure bearing a sign face.

(94)

"Site" means the current boundaries of the leased or owned property surrounding the tower and base station and any access or utility easements currently related to the site; and, for other eligible support structures, means that area in proximity to the structure and to other transmission equipment already deployed on the ground. This term does not apply to towers or base stations in public rights-of-way.

(95)

"Small cell network" means a collection of interrelated small wireless telecommunication facilities designed to deliver personal wireless telecommunication services.

(96)

"Special flood hazard area" means the area that will be inundated by the flood event having a 1-percent chance of being equaled or exceeded in any given year. The 1-percent annual chance flood is also referred to as the base flood or 100-year flood.

(97)

"Specified anatomical areas" or "nudity" means less than completely and opaquely covered human genitals, pubic region, buttock, or female breast below a point immediately above the top of the areola, or human male genitals in a discernible turgid state, even if completely and opaquely covered.

(98)

"Spectrum Act" means the "Middle Class Tax Relief and Job Creation Act of 2012" (Public Law 112-96; codified at 47 U.S.C. § 1455(a)).

(99)

"Stealth" means the same as "camouflage," "conceal," or "concealment."

(100)

"Street" means a dedicated and accepted public right-of-way for vehicular and pedestrian traffic, whether designated as a street, highway, thoroughfare, parkway, throughway, road, avenue, boulevard, land place, or however otherwise designated.

(101)

"Substantial change criteria" means the criteria set forth in section 27-89.

(102)

"Surety" means a financial guaranty that the activities proposed in the application are made as planned. If activities are not made by the applicant, the local government can use surety funds to complete the work as planned or return the land to its original state. Includes but is not limited to performance bonds, cash in escrow, a letter of credit, and similar collateral.

(103)

"Targeted market coverage area" means the area which is targeted to be served by the wireless telecommunications facility proposed in an application.

(104)

"Tower" means any structure capable of supporting any antennas affixed to the tower and their associated facilities, licensed or authorized by the FCC, and constructed for the sole or primary purpose of supporting wireless telecommunications facilities.

(105)

"Trailer, camping and recreational equipment" means travel trailers, pickup coaches, motorized homes and recreational vehicles and equipment as follows:

(a)

"Travel trailer" means a portable structure built on a chassis, designed to be towed and used as a temporary dwelling for travel, recreational, and vacation purposes, and permanently identified as a travel trailer by the manufacturer of the trailer.

(b)

"Pickup coach" means a structure designed primarily to be mounted on a pickup or other truck chassis with sufficient equipment to render it suitable for use as a temporary dwelling for travel, recreational, and vacation purposes.

(c)

"Motorized home" means portable dwelling designed and constructed as an integral part of a self-propelled vehicle.

(d)

"Boat" means a vessel designed to travel on water.

(e)

"Utility trailer" means a portable structure built on a chassis, designed to be towed and used for the purposes of hauling a boat, lawnmower, farm equipment, recreational equipment, or similar equipment, measuring not more than twenty (20) feet in length, and not used primarily for commercial purposes.

(106)

"Tasting facility" means an area of a winery, brewery, or distillery where complimentary samples of a beverage are served on the premises of manufacture, in moderate quantities for tasting.

(107)

"Transmission equipment" means equipment that facilitates transmission for any wireless telecommunication service licensed or authorized by the FCC, including, but not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, and regular and backup power supply.

(108)

"Use" means any purpose for which a building or other structure or a tract of land may be designed, arranged, intended, maintained, or occupied, or any activity, occupation, business, or operation performed in a building or other structure, or on a tract of land.

(109)

"Utility" means a public or private distribution service to the public that is regulated by the public service commission.

(110)

"Utility pole" means a pole or similar structure that is or may be used, in whole or in part, by a communication services provider or for electric distribution, lighting, traffic control, signage (if the pole is fifteen feet or taller), or a similar function, or for the collocation of small wireless facilities. However, "utility pole" does not include wireless support structures or electric transmission structures.

(111)

"Variance" means a deviation from the minimum standards of this Code, but not permitting land uses that are otherwise prohibited in the zoning district or changing the zoning classifications of a parcel of land.

(112)

"Vehicle" means any device in, upon, or by which any person or property is or may be transported or drawn upon a street, including automobiles, and excepting tractors, agricultural machinery, devices moved by human power or used upon stationary rails or tracks.

(113)

"Vertically integrated health care system" means a health delivery system in which the complete spectrum of care, including primary and specialty care, hospitalization and pharmaceutical care, is provided within a single organization.

(114)

"Wireless infrastructure provider" means any person, including a person authorized to provide telecommunications service in the state, that builds or installs wireless communication transmission equipment, wireless facilities, wireless support structures, or utility poles, but that is not a wireless provider.

(115)

"Wireless provider" means a wireless infrastructure provider or a wireless service provider.

(116)

"Wireless services" means any services, using licensed or unlicensed spectrum, including the use of Wi-Fi, whether at a fixed location or mobile location, provided to the public using wireless facilities.

(117)

"Wireless service provider" means an entity that provides wireless services.

(118)

"Wireless support structure" means a structure, such as a monopole; tower, either guyed or self-supporting; billboard; or other existing or proposed structure designed to support or capable of supporting wireless facilities. "Wireless support structure" does not include a utility pole.

(119)

"Wireline backhaul facility" is a facility used for the transport of communications service or any other electronic communications by coaxial, fiber-optic cable, or any other wire.

(120)

"Yard" means open space that lays between the principal building or structure and the nearest lot line. Yards are further classified as front, rear, and side:

(a)

"Yard, front" means a space extending the full width of the lot between the architectural front of the principal building or structure and the front lot line.

(b)

"Yard, rear" means a space extending the full width of the lot between the architectural rear of the principal building or structure and the rear lot line.

(c)

"Yard, side" means a space extending from the front yard to the rear yard between the principal building façade and the side lot line.

(121)

"Zoning" means the division of a municipality or county into districts or zones that specify permitted and conditional uses and development standards for real property within the districts or zones.

(122)

"Zoning officer" means the person or persons designated by the City of Montgomery to administer and/or enforce the provisions of this Code.

(Ord. of 5-9-2023)