Schulenburg City Zoning Code
§ 6
SUPPLEMENTARY DISTRICT REGULATIONS.
6.1
Visibility at intersections in all districts.
On a corner lot in any district, nothing shall be erected, placed, planted or allowed to grow in such a manner as materially to impair vehicle drivers’ vision at intersections, within a triangle defined by the property lines and a line joining two (2) points located twenty (20) feet back from the property lines intersection; except that fences, walls, and hedges may be permitted provided that such fences, walls and/or hedges do not impair vision from three (3) feet to six (6) feet above the curbline elevation.
6.2
Accessory buildings.
No accessory building shall be erected in any required setback area, except in instances where twenty-foot alleys are provided or in the case of easements, rear setback shall be ten (10) feet.
6.3
Minimum building plot.
No building plot shall have lower or less stringent standards or dimensions than those prescribed for respective zones as shown in Table A of this ordinance.
6.4
Erection of more than one principal structure on a lot or building plot.
In any district, more than one (1) structure housing a permitted principal use may be erected on a single lot or building plot, but yard and other requirements of this ordinance must be met for each structure as though each were on an individual lot or building plot.
6.5
Exceptions to height regulations.
The height limitations contained in Table A do not apply to spires, belfries, cupolas, water tanks, ventilators, chimneys or other appurtenances usually required to be placed above the roof level and not intended for human occupancy.
6.6
Structures to have access.
Every building hereafter erected or moved shall be on a lot or building plot with direct access on a public street, or with access to an approved private street. All structures shall be so located on lots or building plots as to provide safe and convenient access for servicing, fire protection, and the required on-site parking.
6.7
Required yards.
Yards as required in this ordinance are open spaces on the lot or building plot on which a building is situated and which are open and unobstructed to the sky by any structure except as herein provided.
6.8
Front yard required.
A yard facing and abutting a street and extending across the front of a lot or building plot between the side property lines and having a minimum horizontal depth measured from the front property line to a depth of the setback specified for the district in which the lot is located. The required front setback line represents the line in front of which no building or structure may be erected except that porches and steps open on three (3) sides located along not more than one-half of the building may project a maximum of six (6) feet into the required front yard. Balconies, decks, signs and marquees located more than eight (8) feet from the ground may project up to six (6) feet into the required front yard.
6.9
Rear yard required.
A yard extending across the rear of the lot or building plot between the side property lines and having a minimum depth measured from the rear property line as specified for the district in which the building plot is located. There shall be no intrusion into the required rear yard by stairways, balconies or other building extensions to more than six (6) feet.
6.10
Side yard required.
A yard located on a lot or building plot extending from the required rear yard to the required front yard having a minimum width measured from the side property line as specified for the district in which the building plot is located.
6.11
Major recreational equipment.
For the purpose of these regulations, major recreational equipment is defined as including boats and boat trailers, travel trailers, pickup campers or coaches (designed to be mounted on automotive vehicles), motorized dwellings, tent trailers, and the like, and cases or boxes used for transporting recreational equipment, whether occupied by such equipment or not. No such equipment shall be used for living, sleeping, home occupation, or household purposes when parked or stored on a residential lot, or in any location not approved for such use.
6.12
Parking and storage of certain vehicles.
Automotive vehicles or trailers not bearing current license plates and state motor vehicle inspection stickers, excluding racing cars, antique cars and cars belonging to members of armed forces who are on active duty, shall be parked or stored on any residentially zoned property only in completely enclosed buildings.
6.13
Screening fences required on new construction.
(1) | Where there is a common side or rear lot line or lot lines between business, commercial or industrial land and developed residential areas, the owner of said business, commercial or industrial land shall erect a fence that properly screens adjacent residential lots from adverse influences such as noise, vehicular lights, trespass, and other adverse influences as part of the normal construction of buildings dedicated to said nonresidential usage. |
(2) | Where there is a common side or rear lot line or lot lines between apartment land and developed single-family residential land, the owner of the apartment land shall erect a fence that will properly screen adjacent single-family residential land from adverse influences such as noise, vehicular lights, trespass, and other adverse influences as part of the normal construction of the apartment project. Such screening fences may be made of any material but shall be at least six (6) feet in height and shall form a solid continuous screen between the residential and nonresidential land uses. In the case of rear lot lines such screening fence shall be continued from one (1) side lot line along the rear lot line to the other side lot line. In the case of side lot lines, such screening fence shall be continued from the rear lot line along the side lot line to the front setback line but no farther than a point fifteen (15) feet from the street right-of-way line. Each such screening fence shall be maintained in good condition by the owner of said business, commercial or industrial project, for as long a time period as may be needed to protect adjacent residential land uses. |
6.14
Shopping centers, multiple building complex and large projects in general.
Plot plans of all shopping centers and multiple building complexes and plot plans of other large-scale projects which would cause a considerable impact on the city’s facilities shall be reviewed and approved by the city technical staff prior to the issuance of a building permit by the building official. Such review under this subsection shall be restricted to the review of the impact of such projection:
(1) | The neighboring land and environment; |
(2) | Traffic generation; |
(3) | Proposed circulation patterns and implications to safety in the project area; and |
(4) | The resultant impact of such traffic generation and circulation upon adjacent street systems. |
The building official or the developer of the project may refer the plot plans to the city council prior to the issuance of a building permit for final resolution. No building permit will be delayed more than thirty (30) days pending resolution of such building permit request unless the building permit has been formally denied by the building official. The building permit, when issued, shall require construction according to the approved plot plan, construction plans and specification[s]. |
6.15
Conditional uses.
The following conditional uses may be permitted in any district when they meet special regulations and conditions prescribed by the city council, upon recommendation of the planning and zoning commission through the issuance of a use permit (see section 10). Detailed examination of proposed location and use characteristics is necessary to maximize compatibility.
Churches |
Community buildings; meeting-recreation facilities |
Hospitals, sanitariums, nursing homes or convalescent homes |
Telephone exchanges |
Child care and development centers |
Public libraries |
Municipal service facilities and buildings |
Schools, public or denominational |
Medical clinics, pharmacies |
Bed and breakfasts |
6.16
Environmental regulations.
The following regulations are to control contamination of the air, water, or the environment, and to safeguard the health, safety and welfare of the people.
6.17
No machine, process or procedure shall be employed on any property in the city in which:
(a) | Emission of smoke, dust, noxious, toxic or lethal gases are detectable beyond the perimeter of the property; |
(b) | Materials are stored or accumulated in such a way that they may be carried by rainwater in natural drainage channels beyond the limits of the property, which are noxious, toxic, radioactive, contain oil or grease, wood or cellulose fibers, hair, feathers, plastic, or have a pH factor above ten (10) or below five (5); |
(c) | Drainage into the sanitary sewerage system shall conform to the requirements in the industrial waste ordinance; |
(d) | Vibration is discernible beyond the property line; |
(e) | Noise above the ambient noise level is discernible beyond the property line. |
6.18
No stormwater drain, roof drain, or area drain shall empty into a sanitary sewer.
6.19
Floodplain.
No dwelling, commercial or industrial building shall be permitted in the intermediate floodplain channel, as determined by the city. Buildings in the area between the delineated intermediate floodplain and the standard floodplain will be permitted only after such land is built up to an elevation of one (1) foot above the standard floodplain elevation, and such land as so built up, when verified by the city engineer, will change the standard floodplain delineation accordingly.
6.20
Mobile home park.
The mobile home park zone is a floating zone, and such classification is not to be granted until a petition is presented showing a planned utilization of such a zone, that such use is the best use of the land, and that it will not adversely affect the surrounding property.
6.21
Temporary buildings and equipment.
Temporary buildings and equipment for uses incidental to construction work on premises are allowed in any zone but shall be removed upon the completion or abandonment of construction work.
6.22
[Parks].
Parks are allowed in any zone.
6.23
Sexually oriented businesses.
(a)
[Permit required.]
Except as provided in this section, sexually oriented businesses shall be prohibited from operating without a permit within the city limits.
(b)
Purpose and intent.
It is the purpose of this section of the zoning ordinance to regulate sexually oriented businesses to promote the public health, safety, morals and general welfare of the citizens of the city, and to establish reasonable and uniform regulations to prevent the deleterious location and concentration of sexually oriented businesses within the city. The provisions of this section have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials, including sexually oriented materials. Similarly, it is neither the intent nor effect of this section to restrict or deny access by adults to distributors and exhibitors of sexually oriented entertainment. Neither is it the intent nor effect of this section to condone or legitimize the distribution of obscene materials. The regulations of this section are adopted under Chapter 243 of the Texas Local Government Code.
(c)
Definitions.
The following words, terms and phrases, when used in this section, shall have the meanings ascribed to them in this subsection, except where the context clearly indicates a different meaning.
(1)
Adult arcade
means any place to which the public is permitted or invited wherein coin-operated or slug-operated or electronically, electrically, or mechanically operated still or motion picture machines, projectors, or other image-producing devices are maintained to show images to five (5) or fewer persons per machine at any one (1) time, and where the images so displayed are distinguished or characterized by the depicting or describing or [of] specified sexual activities or specified anatomical areas.
(2)
Adult bookstore or adult video store
means a commercial establishment which, as one of its principal business purposes, offers for sale or rental or [for] any form of consideration any one (1) or more of the following:
(A)
Books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, videocassettes or video reproductions, compact disc visual discs, digital visual discs, computer pictures, slides, or other visual representations which depict or describe specified sexual activities or specified anatomical areas; or
(B)
Instruments, devices, or paraphernalia which are designed for use in connection with specified sexual activities.
(C)
A commercial establishment may have other principal business purposes that do not involve the offering for sale or rental of material depicting or describing “specified sexual activities” or “specified anatomical areas” and still be categorized as an adult bookstore or adult video store. Such other business purposes will not serve to exempt such commercial establishments from being categorized as an adult bookstore or adult video store so long as either:
(i)
Two (2) percent or more of its gross revenue is derived from the sale or rental of the specified materials which depict or describe specified sexual activities or specified anatomical areas; or
(ii)
Two (2) percent or more of its inventory consists of the specified materials which depict or describe specified sexual activities or specified anatomical areas.
(3)
Adult cabaret
means a nightclub, bar, restaurant or similar commercial establishment that regularly features:
(A)
Persons who appear in a state of total nudity or semi-nudity; or
(B)
Life [Live] performances which are characterized by the exposure of specified anatomical areas or by specified sexual activities; or
(C)
Films, motion pictures, videocassettes, compact visual discs, digital visual discs, computer pictures, slides, or other photographic reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas.
(4)
Adult motel
means a hotel, motel, or similar commercial establishment which:
(A)
Offers accommodations to the public for any form of consideration; provides patrons with closed-circuit television transmissions, films, motion pictures, videocassettes, compact visual discs, digital visual discs, computer pictures, slides or other photographic reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas; including those that have a sign visible from the public right-of-way which advertises the availability of this adult type of photographic reproductions; or
(B)
Offers a sleeping room for rent for a period of time that is less than ten (10) hours or based on an hourly rate; or
(C)
Allows a tenant or occupant of a sleeping room to subrent the room for a period of time that is less than ten (10) hours or based on an hourly rate.
(5)
Adult motion picture theater
means commercial establishments where, for any form of consideration, films, motion pictures, videocassettes, compact visual discs, digital visual discs, computer pictures, slides, or similar photographic reproductions are regularly shown which are characterized by the depiction or description of specified sexual activities or specified anatomical areas.
(6)
Adult theater
means a theater, concert hall, auditorium, or similar commercial establishment which regularly features persons who appear in a state of nudity and/or semi-nudity or live performances which are characterized by the exposure of specified anatomical areas or by specified sexual activities.
(7)
Escort
means a person who, for consideration, agrees or offers to act as a companion, guide, or date for another person, or who agrees or offers to privately model lingerie or to privately perform a body rub, bathing of the body, or striptease for another person for sexual arousal.
(8)
Escort agency
means a person or business association who furnishes, offers to furnish, or advertises to furnish escorts as one of its primary business purposes for a fee, tip or other consideration.
(9)
Establishment
means and includes any of the following:
(A)
The opening or commencement of any sexually oriented business as a new business;
(B)
The conversion of an existing business, whether or not a sexually oriented business, to any sexually oriented business;
(C)
The addition of any sexually oriented business to any other existing sexually oriented business; or
(D)
The relocation of any sexually oriented business.
(10)
Permittee
means a person in whose name a conditional use permit to operate a sexually oriented business has been issued and the person who owns the building and/or land on which the business is located, as well as the individual listed as an applicant on the application for a permit.
(11)
Nude model studio
means any place where a person who appears in a state of nudity or displays specified anatomical areas is provided to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons who pay money or any form of consideration.
(12)
Nudity or a state of nudity
means the appearance of a human bare buttock, anus, male genitals, female genitals, or areola of the breast.
(13)
Person
shall mean and include an individual human, partnership, co-partnership[,] firm, company, limited liability partnership or other partnership or other such company, joint venture, joint stock company, trust, estate, governmental entity, association or corporation or any other legal entity, or their legal representatives, agents or assigns. The masculine gender shall include the feminine, the singular shall include the plural where indicated by the context.
(14)
Semi-nude
means a state of dress in which clothing covers no more than the genitals, pubic region, and/or areola of the breast, as well as portions of the body covered by supporting straps or devices.
(15)
Sexual encounter center
means a business or commercial enterprise that, as one of its primary business purposes, offers any of the following for consideration:
(16)
Sexually oriented business
means a sex parlor, nude studio, modeling studio, love parlor, adult bookstore, adult movie theater, adult video arcade, adult movie arcade, adult video store, adult motel, sexual encounter center, or other commercial enterprise the primary business of which is the offering of a service or the selling, renting, or exhibiting of devices or any other items intended to provide sexual stimulation or sexual gratification to the customer.
(17)
Specified anatomical areas
means the male genitals in a state of sexual arousal and/or the vulva or more internal portion of the female genitals.
(18)
Specified sexual activities
means and includes any of the following:
(A)
The fondling or other erotic touching of human genitals, pubic region, buttocks, anus or female breasts;
(B)
Sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation, or sodomy;
(C)
Masturbation, actual or simulated; or
(D)
Excretory functions as part of or in connection with any of the activities set forth in (A) through (C) above.
(19)
Substantial enlargement of a sexually oriented business
means the increase in floor area occupied by the business by more than twenty-five (25) percent, as the floor area existed on the effective date of this section, or under a certificate of occupancy therefor.
(20)
Transfer of ownership or control of a sexually oriented business
means and includes any of the following:
(A)
The sale, leasing or subleasing of the business;
(B)
The transfer of securities which constitute a controlling interest in the business, whether by sale, exchange, or similar means; or
(C)
The establishment of a trust, gift or other similar legal device which transfers the ownership or control of the business, except for transfer by bequest or other operation of law upon the death of the person possessing the ownership or control.
(e)
Location.
This section allows the opportunity for consideration of conditional use permits to be issued for sexually oriented businesses in the General Commercial (herein “C-2”) zoning districts only.
(1)
The following uses may be permitted within the city by conditional use permit only in the C-2 zoning district.
(2)
No use listed in subsection (d)(i) [(e)(1)] above shall be established within one thousand (1,000) feet of any of the following uses in existence prior to the beginning of such business:
(A)
A church, chapel, or other regular place of religious worship;
(B)
A public or private day care, elementary, secondary school or institute of higher learning;
(C)
A boundary of any residentially zoned district;
(D)
A public park, library, or playground;
(E)
The property line of a lot used for residential purposes; or
(F)
Within one thousand (1,000) feet of another sexually oriented business.
(3)
For the purpose of this section, measurement shall be made in a straight line, without regard to intervening structures or objects, from the nearest portion of the building or structure used as a part of the premises where a sexually oriented business is conducted, to the nearest property line of the premises as described in (d)(ii) [(e)(2)] above; or to the nearest boundary of any residentially zoned district; or from the closest exterior wall of the structure in which a sexually oriented business is proposed to be located to the nearest exterior wall of any other sexually oriented business.
(4)
For the purposes of this section, if sexually oriented businesses cannot be located within a minimum of three (3) percent [of the] existing zoning districts within the city limits, including all nonconforming use sexually oriented businesses, due to limitations as set forth in this section, the city will upon written request from an applicant review the current zoning districts and shall allow zoning alterations as necessary so that a minimum of three (3) percent of the city-wide zoning, cumulatively within the city limits, can be occupied by a conditional use permitted sexually oriented business, including all nonconforming use sexually oriented business.
(f)
Sexually explicit films and videos.
(1)
A person who operates or causes to be operated a sexually oriented business, other than an adult motel, which exhibits on the premises in a viewing room of less than one hundred fifty (150) square feet of floor space, a film, videocassette, compact visual disc, digital visual disc, computer picture, slide, or other video reproduction which depicts specified sexual activities or specified anatomical areas, shall comply with the following requirements:
(A)
The application for a conditional use permit for a sexually oriented business shall be accompanied by a diagram of the premises showing a plan thereof specifying the location of one (1) or more manager’s stations and the location of all overhead lighting fixtures and designating any portion of the premises in which patrons will not be permitted. A manager’s station may not exceed thirty-two (32) square feet of floor area. The diagram shall also designate the place at which the permit will be conspicuously posted, if granted. A professionally prepared diagram in the nature of an engineer’s or architect’s blueprint shall not be required; however, each diagram should be oriented to the north or to some designated street or object and should be drawn to a designated scale or with marked dimensions sufficient to show the various internal dimensions of all areas of the interior of the premises to an accuracy of plus or minus one (1) foot. The building official may waive the foregoing diagram for renewal applications if the applicant adopts a diagram that was previously submitted and certifies that the configuration of the premises is correct and has not been altered since it was prepared.
(B)
The application shall be sworn to be true and correct by the applicant.
(C)
No alteration in the configuration or location of a manager’s station may be made without the prior approval of an amendment to the conditional use permit.
(D)
It is the duty of the owners and operator of the premises to ensure that at least one (1) employee is on duty and situated in each manager’s station at all times that any patron is present inside the premise.
(E)
The interior of the premises shall be configured in such a manner that there is an unobstructed view from a manager’s station of every area of the premises to which any patron is permitted access for any purpose excluding restrooms. Restrooms may not contain video reproduction equipment. If the premises has two (2) or more manager’s stations designated, then the interior of the premises shall be configured in such a manner that there is an unobstructed view of each area of the premises to which any patron is permitted access for any purpose from at least one (1) of the manager’s stations. The view required in this subsection must be by direct line of sight from the manager’s station.
(F)
It shall be the duty of the owners and operator, and it shall also be the duty of any agents and employees present in the premises to ensure that the view area specified in the above subsection (E) remains unobstructed by any doors, walls, merchandise, display racks or other materials at all times and to ensure that no patron is permitted access to any area of the premises which has been designated as an area in which patrons will not be permitted in the application filed pursuant to Subsection (A) of this subsection.
(G)
No viewing room may be occupied by more than one (1) person at any time.
(H)
The premises shall be equipped with overhead lighting fixtures of sufficient intensity to illuminate every place to which patrons are permitted access at an illumination of not less than one (1.0) footcandle as measured at the floor level.
(I)
It shall be the duty of the owners and operator and it shall also be the duty of any agents and employees present in the premises to ensure that the illumination described above is maintained at all times that any patron is present in the premises.
(2)
A person having a duty under subsection (A) through (I) of subsection (i) [(1)] above commits a misdemeanor if he or she knowingly fails to fulfill that duty.
(g)
Exemptions.
The following are exempt from regulation under this section:
(1)
A bookstore, movie theater, or video store, unless that business is an adult bookstore, adult motion picture theater, or adult video store as defined herein;
(2)
A business operated by or employing a licensed psychologist, licensed physical therapist, licensed athletic trainer, licensed cosmetologist, or licensed barber engaged in performing functions authorized under the license held; or
(3)
A business operated by or employing a licensed physician or licensed chiropractor engaged in practicing the healing arts.
(4)
It is a defense to prosecution under this section that a person appearing in a state of nudity did so in a modeling class operated:
(A)
By a proprietary school, licensed by the State of Texas; a college, junior college or university supported entirely or partly by taxation;
(B)
By a private college or university which maintains and operates educational programs in which credits are transferable to a college, junior college, or university supported entirely or partly by taxation; or
(C)
In a structure:
(i)
Which has no sign visible from the exterior of the structure and no other advertising that indicates a nude person is available for viewing; and
(ii)
Where, in order to participate in a class a student must enroll at least three (3) days in advance of the class; and
(iii)
Where no more than one (1) nude model is on the premises at any one (1) time.
(h)
Permits.
All sexually oriented businesses located within the city limits must have a conditional use permit or qualify as a nonconforming use and have a permit to operate as provided herein. Each person having ownership interest, control or owning the property upon which the sexually oriented business is to be located must have filled out an application and his or her name must appear on the permit.
(1)
Permits required.
A commercial establishment that is a sexually oriented business as herein defined, shall at all times of operation within the city limits have a valid permit.
(A)
A person commits an offense if that person conducts business as a sexually oriented business within the city unless a valid conditional use permit has been issued by the city for the conduct of such business.
(B)
A person commits an offense if that person conducts business as a sexually oriented business within the city limits unless the person has a valid permit which is posted at or near the principal public entrance to the business in such a manner that it will be conspicuous to patrons who enter the premises, or behind the bar in a conspicuous manner.
(C)
Every permittee shall have and maintain exclusive occupancy and control of the entire permitted premises in every phase of the operation of the sexually oriented business on the permitted premises. A permittee commits an offense if the permittee attempts to avoid such responsibility by creating any device, scheme or plan which surrenders control of the employees, premises or business of the permittee to persons other than the permittee.
(2)
Issuance or denial of any permit.
A permit, renewal or transfer permit shall be issued unless one (1) or more of the following conditions exists:
(A)
The applicant has located the sexually oriented business in violation of this section.
(B)
The applicant(s) failed to supply all of the information required on the application.
(C)
The applicant, or any one (1) applicant, gave fraudulent or untruthful information on the application. This does not apply to clerical errors.
(D)
The applicant, or any one (1) applicant, has been convicted of a felony for which not less than ten (10) years have elapsed since the date of conviction or the date of release from confinement imposed for the conviction, whichever is the later date, or a misdemeanor for which less than two (2) years have elapsed since the date of conviction or the date of release from confinement imposed for the conviction, whichever date is the later date, of a crime in any state in the United States of America involving:
(i)
Public lewdness, indecent exposure, or indecency with a child, as described in the Texas Penal Code;
(ii)
Prohibited sexual conduct, enticing a child, harboring a runaway child, or sale or purchase of a child, as described in the Texas Penal Code;
(iii)
Prostitution, promotion of prostitution, aggravated promotion of prostitution, compelling prostitution, obscenity, sale, distribution, or display of harmful material to a minor, sexual performance by a child, employment harmful to children, or possession or promotion of child pornography, as described in the Texas Penal Code;
(iv)
Facilitation, attempt, conspiracy, or solicitation to commit any of the foregoing offenses; or
(v)
Any similar offense to those described above under the criminal or penal code of another state.
(E)
Any applicant, or any one (1) applicant, refuses to provide a complete and current NCIC and TCIC criminal history of applicant obtained by applicant from the Texas Department of Public Safety. The criminal history must be completed within 15 days of the date the application is submitted to the building official.
(F)
Permit fees are not paid in full.
(3)
Application requirements.
Initial permit requests for a conditional use permit require each owner, having ten (10) percent or more interest in the sexually oriented business, to submit a complete application and to update the application as changes in ownership occur (herein the “applicant” or “permittee”). The information required in this subsection must be provided with each application and, as changes occur, updated information within ten (10) days of any change in the information required in the application.
(A)
The following information must be provided on the application form:
(i)
The name, street address (and mailing address if different) of the applicant and each and every owner with greater than ten (10) percent ownership interest;
(ii)
Two (2) copies each of recent photographs of the applicant showing full face and each side face profile;
(iii)
A complete set of fingerprints on forms from the police department;
(iv)
A complete and current NCIC and TCIC criminal history of applicant obtained by applicant from the Texas Department of Public Safety. The criminal history must be completed within fifteen (15) days of the date the application is submitted to the building official;
(v)
The applicant’s driver’s license number, date of birth, and where applicable, his/her state or federally issued tax identification number;
(vi)
The name under which the establishment is to be operated and a general description of the services to be provided;
(vii)
If the applicant intends to operate the sexually oriented business under a name other than that of the applicant; he or she must state (a) the sexually oriented business’s assumed name and (b) submit the required registration documents;
(viii)
Whether the applicant has ever been convicted, or is awaiting trial on pending charges, of a crime specified in section 8.20(g)(ii)(D) [subsection (h)(2)(D)] and, if so, the nature of the offense(s) and the date, place, and jurisdiction of each offense;
(ix)
Whether the applicant has had a previous license or conditional use permit under this section or other similarly sexually oriented business ordinance from another city or county denied, suspended or revoked, including the name and location of the sexually oriented business for which the license or conditional use permit was denied, suspended or revoked, as well as the date of the denial, suspension or revocation, and whether the applicant is or has been a partner in a partnership or an officer, director or principal stockholder of a corporation that is or was licensed under a sexually oriented business ordinance whose license or conditional use permit has previously been denied, suspended or revoked, including the name and location of the sexually oriented business for which the license or conditional use permit was denied, suspended or revoked, as well as the date of denial, suspension or revocation;
(x)
Whether the applicant holds any other license or conditional use permit under this section or other similar sexually oriented business ordinance from another city or county and, if so, the names and locations of such other licensed businesses;
(xi)
The address, and legal description of the tract of land on which the establishment is to be located;
(xii)
If the establishment is in operation, the date on which the owner(s) acquired the establishment for which the license or conditional use permit is sought, and the date on which the establishment began operations as a sexually oriented business at the location for which the conditional use permit is sought; and
(xiii)
If the establishment is not in operation, the expected startup date (which must be expressed in number of days from the date of issuance of the conditional use permit). If the expected startup date is to be more than ten (10) days following the date of issuance of the conditional use permit, then a detailed explanation must be provided of the construction, repair or remodeling work or other cause of the expected delay and a statement of the owner’s time schedule and plan for accomplishing the construction, repair or remodeling work.
(B)
All applications for a conditional use permit must include the following:
(i)
If the establishment is a State of Texas corporation, a certified copy of the articles of incorporation, together with all amendments thereto.
(ii)
If the establishment is a foreign corporation, a certified copy of the certificate of authority to transact business in this state, together with all amendments thereto.
(iii)
If the establishment is a limited partnership formed under the laws of the State of Texas, a certified copy of the certificate of limited partnership, together with all amendments thereto.
(iv)
If the establishment is a foreign limited partnership, a certified copy of the certificate of limited partnership and the qualification documents, together with all amendments thereto.
(v)
Proof of the current fee ownership of the tract of land on which the establishment is to be situated in the form of a copy of the recorded deed along with the current address(es) and telephone number(s) of the owner(s).
(vi)
If the person(s) identified as the fee owner(s) of the tract of land are not also the owners of the establishment, then the lease, purchase contract, purchase option contract, lease option contract or other document(s) evidencing the legally enforceable right of the owners or proposed owners of the establishment to have or obtain the use and possession of the tract or portion thereof that is to be used for the purpose of the operation of the establishment together with the correct address and telephone number of each person with an ownership interest in the property.
(vii)
If the property is owned by other than a natural person, the complete name, address and telephone of each person with an interest in the entity must be included in the application.
(viii)
A current certificate and straight-line drawing prepared within thirty (30) days prior to application by a registered land surveyor depicting the property lines of any established use listed in section 8.20(d)(ii) [subsection (e)(2)] within one thousand (1,000) feet of the property to be certified. For purposes of this section, a use is considered existing or established if it is in existence at the time an application is submitted.
(ix)
The application must be accompanied by a sketch or diagram showing the configuration of the premises, including a statement of total floor space occupied by the business. The sketch or diagram need not be professionally prepared but must be drawn to a designated scale no smaller than 1/4 inch equals one (1) foot and with marked dimensions of the placement of the building on the tract of land, and the interior of the premises to an accuracy of plus or minus six (6) inches. All locational requirements must be approved by the building official within sixty (60) days from the time the application is filed.
(x)
Any of items (1) through (9) [(i) through (ix)] above will not be required for a renewal application if they were previously presented and the applicant states in writing that the documents previously furnished to the building official with the original application or previous renewals thereof remain correct and current.
(C)
Every application for a conditional use permit must contain a statement made under oath that:
(D)
The applicant for a sexually oriented business conditional use permit must be qualified according to the provisions of this section.
(E)
If the applicant who wishes to operate a sexually oriented business is an individual, that individual must sign the application for a conditional use permit as applicant. If the applicant who wishes to operate a sexually oriented business is other than an individual, each individual who has greater than a ten (10) percent interest in the business must sign and provide all the information required by the application for a conditional use permit as an applicant and will be considered an operator if a conditional use permit is granted.
(F)
The fact that a person possesses any other valid license, certificate or permit required by law does not exempt him or her from the requirement of obtaining a sexually oriented business conditional use permit. A person who operates a sexually oriented business and possesses another business license, certificate or permit must comply with the requirements and provisions of this section as well as the requirements and provisions of the law concerning the other license, certificate or permit.
(G)
All applications must include a nonrefundable application fee. An application will not be considered to have been filed until all applicable fees are paid and all information required by the application form has been submitted.
Editor’s note–At the request of the city, the specific dollar amount of the filing fee was removed from subsection G. above. Fees can be found in appendix A to this code.
(H)
The applicant must supplement an application with new information received after the date the application was deemed completed. Permittees must supplement application information within ten (10) days of any change in information provided in the application.
(I)
All sexually oriented businesses located within the city and in operation as a lawful use conforming to the zoning ordinance before the effective date of this section are granted a one-time waiver of the application fee. Upon satisfactory completion of the application and surrender of the existing business’s current certificate of occupancy, a new conditional use permit will be issued, subject to the requirements of this section.
(J)
A copy of all applications and supporting documentation for conditional use permits will be maintained by the building official.
(K)
Upon receipt of an application or supplemental information, the building official will review the application to determine if all required and necessary information has been submitted. The building official will issue a letter within a reasonable time, not to exceed ten (10) business days, after receipt of the application or supplemental information and advise the applicant whether supplemental information must be submitted. The applicant must provide any supplemental information within thirty (30) days or the application will be returned and the filing fee forfeited.
(4)
Public notice of pending application.
(A)
An applicant for a license or permit issued under this section for a location not previously licensed or permitted shall, not later than the 60th day before the date that the application is filed, prominently post outdoor signs at the location. The outdoor signs shall be at least twenty-four (24) inches by thirty-six (36) inches in size, with letters at least two (2) inches in size, stating “A SEXUALLY ORIENTED BUSINESS IS INTENDED TO BE LOCATED ON THIS PREMISES.” The signs will also include the name and business address of each applicant, and the time and place of the public hearings. The city may require the signs to be both in English and a language other than English, if it is likely that a substantial number of the residents in the area speak a language other than English as their familiar language. The signs will be placed on the property in sufficient quantities and locations to identify the property as being intended as the location of a sexually oriented business. At a minimum, one (1) sign will be erected on each lot corner to identify the boundaries of the property in addition to one (1) sign for each three-hundred-foot increment of each public road or highway frontage on the property existing or any part thereof. The signs will remain erected, and will be maintained by the applicant, until the application has been approved or denied by the city council.
(B)
The city will give notice of the application and scheduled public hearings by publication in two (2) consecutive issues of the city’s official newspaper. The notices will:
(1)
Include the fact that a sexually oriented business conditional use permit has been applied for;
(2)
Include the exact location, including the street address, of the place of business for which the certificate is sought;
(3)
Include the names of each owner of the business and, if the business is operated under an assumed name, the trade name together with the names of all owners;
(4)
Include, if the applicant is a corporation, the names and titles of all officers, directors and shareholders of ten (10) percent or more of the corporation;
(5)
Include the dates and times of the public hearings; and
(6)
Be published at least fifteen (15) days before each public hearing.
(5)
Renewal of permit.
Permits shall be valid for one (1) year from the issuance of the permit. Permits must be renewed annually by all persons having ownership interest or control of the sexually oriented business and all persons owning the property upon which the sexually oriented business is located. Failure to renew the permit voids the permit.
(6)
Permit transfers.
A permit is personal to the persons designated in the application. A permit may not be transferred except pursuant to and in compliance with this section. A transfer application must be filed within thirty (30) days of any change of persons designated on the current permit. A transfer application shall allow continuation of business under an existing permit while a new application is being processed. Any transfer application shall require and be treated in all respects as an original permit application. In the event that a transfer application is not timely filed, then the existing permit shall be invalid for any purpose relating to the operation of business. Provided, however, that nothing in this section shall affect the nonconforming use provisions herein.
(7)
Revocation of permit.
Any violation of this section shall constitute grounds for revocation of a permit. A permit shall be revoked for any of the following violations:
(A)
The permittee(s) have located the sexually oriented business in violation of this section.
(B)
The permittee(s) failed to supply all of the information required on the application.
(C)
The permittee(s) gave fraudulent or untruthful information on the application. This does not apply to clerical errors.
(D)
The permittee, or any one (1) permittee, has been convicted of a felony for which not less than ten (10) years have elapsed since the date of conviction or the date of a release from confinement imposed for the conviction, whichever is the later date, or a misdemeanor for which less than two (2) years have elapsed since the date of conviction or the date of release from confinement imposed for the conviction, whichever date is the later date, of a crime in any state involving:
(1)
Public lewdness, indecent exposure, or indecency with a child, as described in the Texas Penal Code;
(2)
Prohibited sexual conduct, enticing a child, harboring a runaway child, or sale or purchase of a child, as described in the Texas Penal Code;
(3)
Prostitution, promotion of prostitution, aggravated promotion of prostitution, compelling prostitution, obscenity, sale, distribution, or display of harmful material to a minor, sexual performance by a child, employment harmful to children, or possession or promotion of child pornography, as defined in the Texas Penal Code;
(4)
Facilitation, attempt, conspiracy, or solicitation to commit any of the foregoing offenses; or
(5)
Any similar offense to those described above under the criminal or penal code of another state.
(E)
More than four (4) criminal offenses are committed on the permitted premises in any consecutive twelve-month period which fall in one (1) or more of the following categories:
(1)
Public lewdness, indecent exposure, or indecency with a child, as described in the Texas Penal Code;
(2)
Prohibited sexual conduct, enticing a child, harboring a runaway child, or sale or purchase of a child, as described in the Texas Penal Code;
(3)
Prostitution, promotion of prostitution, aggravated promotion of prostitution, compelling prostitution, obscenity, sale, distribution, or display of harmful material to a minor, sexual performance by a child, employment harmful to children, or possession or promotion of child pornography, as defined in the Texas Penal Code;
(4)
Facilitation, attempt, conspiracy, or solicitation to commit any of the foregoing offenses.
(F)
No person under the age of eighteen (18), not otherwise permitted by the Laws of Texas to view the material contained on the premises, is permitted to enter the premises.
(8)
Appeal.
All denials and revocations of permit applications and renewals must be appealed to the city council.
(A)
If an application for issuance or renewal of a permit is denied or a permit is revoked, upon notice of the denial or revocation of a permit, the aggrieved applicant or permittee shall have ten (10) days to file a written appeal of the decision before the city council. The written appeal shall include the name(s) of the applicant(s) and business, the address of the business, and the grounds for the appeal, and must be signed by the applicant(s).
(B)
The filing of an appeal of a revocation of a permit to the city council shall abate the revocation of the permit until such time as the city council may hold a public hearing.
(i)
Specific violations.
(1)
A person commits a misdemeanor if he or she:
(A)
Operates or causes to be operated a sexually oriented business without a conditional use permit. All sexually oriented businesses shall be located within the C-2 zoning district unless such business qualifies as a nonconforming use.
(B)
Operates or causes to be operated a sexually oriented business without a permit to operate a sexually oriented business.
(C)
Operates or causes to be operated a sexually oriented business within one thousand (1,000) feet of any of the following uses in existence prior to the beginning of such business:
(1)
A church, chapel, or other regular place of religious worship.
(2)
A public or private day care, elementary, secondary school or institute of higher learning.
(3)
A boundary of any residentially zoned district.
(4)
A public park, library, or playground.
(5)
The property line of a lot used for residential purposes.
(D)
Causes or permits the operation, establishment, substantial enlargement, or transfer of ownership or control of a sexually oriented business within one thousand (1,000) feet of another sexually oriented business.
(E)
Causes or permits the operation, establishment or maintenance of more than one (1) sexually oriented business, as defined herein, in the same building, structure, or portion thereof, or the increase of floor area of any sexually oriented business in any building, structure or portion thereof containing another sexually oriented business.
(2)
For the purposes of subsection (h)(i)(c) [(i)(1)(C)] of this section, measurement shall be made in a straight line, without regard to intervening structures or objects, from the nearest portion of the building or structure in which any, or any part of any, sexually oriented business is conducted, to the nearest property line of the premises described in subsection (h)(i)(C) [(i)(1)(C)].
(3)
For purposes of subsection (h)(i)(d) [(i)(1)(D)] of this section, the distance between any two (2) sexually oriented businesses shall be measured in a straight line, without regard to intervening structures or objects, from the closest exterior wall of the structure in which each business is located.
(j)
Nonconforming uses.
(1)
Any sexually oriented business lawfully operating on the effective date of this section that is in violation of this section shall be deemed a nonconforming use. The nonconforming use will be permitted to continue for a period not to exceed ten (10) years, unless sooner terminated for any reason or voluntarily discontinued for a period of thirty (30) days or more. Such nonconforming uses shall not be increased, enlarged, extended or altered except that the use may be changed to a conforming use. If two (2) or more sexually oriented businesses are within one thousand (1,000) feet of one another and otherwise in a permissible location, the sexually oriented business which was first established and continually operating at a particular location is the conforming use and the later-established business is nonconforming.
(2)
A sexually oriented business lawfully operating as a conforming use is not rendered a nonconforming use by the location, subsequent to the grant of a conditional use permit for a sexually oriented business, of a church, public or private day care, elementary or secondary school, institute of higher learning, public park, library, or playground, or a residential lot within one thousand (1,000) feet of the sexually oriented business. This provision applies only to the renewal of a valid permit, and does not apply when an application for a permit is submitted after a permit and/or license has expired or has been revoked.
(3)
All nonconforming sexually oriented business uses in existence at the time of passage of this section within the city limits shall have sixty (60) days to apply for a permit to operate such sexually oriented business.
(k)
Enforcement.
(l)
Inspection.
The city may inspect a sexually oriented business to determine compliance with this section and its regulations.
(Ordinance adopted 6/15/73; Ordinance adopted 6/20/95; Ordinance adopted 11/21/05)