State v. Farhad Nayeb

ACCEPTED
05-15-00279-CR
FIFTH COURT OF APPEALS
DALLAS, TEXAS
5/28/2015 4:43:10 PM
LISA MATZ
CLERK

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IN THE COURT OF APPEALS
FOR THE FIFTH JUDICIAL DISTRICT
OF TEXAS AT DALLAS

STATE OF TEXAS,

Appellant,

vs.

FARHAD NAYEB,

Appellee.

APPELLANT’S BRIEF
LARRY R. BOYD
State Bar No. 02775000
lboyd@abernathy-law.com
ABERNATHY ROEDER BOYD & HULLETT, P.C.
1700 Redbud Blvd., Suite 300
McKinney, Texas 75069
Telephone: (214) 544-4000
Telecopier: (214) 544-4040

SPECIAL PROSECUTOR FOR
THE STATE OF TEXAS

ORAL ARGUMENT REQUESTED

ii
 IDENTITY OF PARTIES AND COUNSEL

APPELLATE COUNSEL LARRY R. BOYD
FOR THE STATE OF TEXAS: State Bar No. 02775000
lboyd@abernathy-law.com
ABERNATHY ROEDER BOYD &
HULLETT, P.C.
1700 Redbud Blvd., Suite 300
McKinney, Texas 75069
Telephone: (214) 544-4000
Telecopier: (214) 544-4040

TRIAL COUNSEL JOHN RICHARD ROLATER, JR.
FOR THE STATE OF TEXAS: State Bar No. 00791565
jrolater@co.collin.tx.us
ASSISTANT DISTRICT ATTORNEY
2100 Bloomdale Road, Suite 100
McKinney, Texas 75071
Telephone: (972) 548-4323
Telecopier: (972) 548-3622

APPELLEE: FARHAD NAYEB

TRIAL AND APPELLATE THOMAS H. KEEN
COUNSEL FOR THE APPELLEE: State Bar No. 11163300
tom@keenlawfirm.com
LAW OFFICES OF THOMAS H.
KEEN, PLLC
555 Republic Drive, Suite 325
Plano, Texas 75074
Telephone: (469) 241-1467
Telecopier: (972) 499-2446

iii
 TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xii

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . xiv

ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xv

Issue No. 1. Whether the City of Melissa, Texas’ Comprehensive Zoning
Ordinance No. 92-08 is unconstitutionally vague as determined
by the Trial Court.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xv

Issue No. 2. Whether the Trial Court failed to follow the established rules of
statutory construction by not applying required constitutional
presumptions, by ignoring prior determinations of this Court that
Comprehensive Zoning Ordinance No. 92-08 is not vague, and by
not properly construing the plain language of the ordinance.. xv

Issue No. 3. Whether a party has standing to challenge an ordinance as
unconstitutional when it has previously accepted the benefits of
the same ordinance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xv

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

I. STANDARD OF REVIEW.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

II. APPLICABLE PRESUMPTIONS AND BURDEN OF PROOF.. . . . . . . . . 7

iv
 A. The Required Presumptions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

B. The Burden of Proof.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

III. THE TRIAL COURT ERRONEOUSLY INVALIDATED THE CZO AS
VAGUE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

A. The Determining Factors for Vagueness. . . . . . . . . . . . . . . . . . . . . . . 9

B. The Trial Court’s Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

C. Failures of the Vagueness Challenge. . . . . . . . . . . . . . . . . . . . . . . . . 12

IV. THE TRIAL COURT ERRONEOUSLY FOUND THE CZO TO BE
UNCONSTITUTIONAL.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

A. Application of Rules of Construction.. . . . . . . . . . . . . . . . . . . . . . . . 16

B. A Home-Rule City’s Discretionary Powers.. . . . . . . . . . . . . . . . . . . 17

C. Nayeb’s Failure to Carry His Burden of Proof.. . . . . . . . . . . . . . . . . 21

D. Nayeb’s Acceptance of the Benefits of the CZO Precluded the
Constitutional Challenge For Lack of Standing.. . . . . . . . . . . . . . . . 25

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

v
 INDEX OF AUTHORITIES

CASES:

Austin Police Ass'n v. City of Austin,
71 S.W.3d 885 (Tex. App. - Austin 2002, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . 17

Baird v. City of Melissa, 170 S.W.3d 921
(Tex. App. - Dallas 2005, pet. denied). . . . . . . . . . . . . . . . . 6, 13, 14, 16, 21, 24, 28

Barshop v. Medina County Underground Water
Conservation Dist., 925 S.W.2d 618 (Tex. 1996). . . . . . . . . . . . . . . . . . . . . . . 7, 14

Bd. of Adjustment of the City of San Antonio v. Wende,
92 S.W.3d 424 (Tex. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Bolton v. Sparks, 362 S.W.2d 946 (Tex. 1962). . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Boyce Motor Lines, Inc. v. United States, 342 U.S. 337,
72 S. Ct. 329, 96 L. Ed. 367 (1952). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Briggs v. State, 740 S.W.2d 803 (Tex. Crim. App. 1987). . . . . . . . . . . . . . . . 11, 22

Brookside Village v. Comeau, 633 S.W.2d 790 (Tex. 1982). . . . . . . . . . . . . . 18, 19

Bynum v. State, 767 S.W.2d 769 (Tex. Crim. App. 1989). . . . . . . . . . . . . . . . . . . 15

Calvert v. Kadane, 427 S.W.2d 605 (Tex. 1968). . . . . . . . . . . . . . . . . . . . . . . . . . 20

Cambridge Production, Inc. v. Geodyne Nominee Corp.,
292 S.W.3d 725 (Tex. App. - Amarillo 2009, pet. denied). . . . . . . . . . . . . . . . . . 27

Cheatum v. Texas Workers' Compensation Comm'n & University of Texas System,
2001 Tex. App. LEXIS 822 (Tex. App - Dallas 2001, no pet.). . . . . . . . . . . . . . . 25

City of Alamo Heights v. Boyar, 158 S.W.3d 545
(Tex. App. - San Antonio 2005, no pet.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

vi
City of Chicago v. Morales, 527 U.S. 41,
119 S. Ct. 1849, 144 L. Ed. 2d 67 (1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

City of College Station v. Turtle Rock Corp.,
680 S.W.2d 802 (Tex. 1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18

City of Dallas v. Blanton, 200 S.W.3d 266
(Tex. App. - Dallas 2006, no pet.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

City of Dallas v. Haworth, 218 S.W.2d 264
(Tex. Civ. App. - Dallas 1949, writ ref’d n.r.e.). . . . . . . . . . . . . . . . . . . . . . . . . . 13

City of Garland v. Kaliney, 1996 Tex. App. LEXIS 935
(Tex. App. - Dallas 1996, writ denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

City of Houston v. Todd, 41 S.W.3d 289
(Tex. App. - Houston [1st Dist.] 2001, pet. denied).. . . . . . . . . . . . . . . . . . . . . . . . 20

City of Mesquite v. Coltharp, 685 S.W.2d 78
(Tex. App. - Dallas 1984, writ ref’d n.r.e.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

City of Richardson v. Responsible Dog Owners of Tex.,
794 S.W.2d 17 (Tex. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Commission for Lawyer Discipline v. Benton, 980 S.W.2d 425 (Tex. 1998). . . . . 8

Doyle v. Harben, 660 S.W.2d 586 (Tex. App. - San Antonio 1983, no writ). . . . . 8

Duncantell v. State, 230 S.W.3d 835
(Tex. App. - Houston [14th Dist] 2007, pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . . 11

Eckland Consultants, Inc. v. Ryder, Stilwell Inc.,
176 S.W.3d 80 (Tex. App. - Houston [1st Dist.] 2004, no pet.). . . . . . . . . . . . . . . 27

Eddins Enters., Inc. v. Town of Addison,
280 S.W.3d 544 (Tex. App. - Dallas 2009, no pet.). . . . . . . . . . . . . . . . . . . . . . . . 17

vii
Ellis v. City of West University Place,
141 Tex. 608, 175 S.W.2d 396 (1943). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Ely v. State, 582 S.W.2d 416 (Tex. Crim. App. 1979). . . . . . . . . . . . . . . . . . . . . . . 8

Engelking v. State, 750 S.W.2d 213 (Tex. Crim. App. 1988).. . . . . . . . . . . . . . . . 15

Ex parte Granviel, 561 S.W.2d 503 (Tex. Crim. App. 1978).. . . . . . . . . . . . . . . . . 8

Ex parte Hood, 211 S.W.3d 767 (Tex. Crim. App.),
cert. denied, 128 S.Ct. 48, 169 L. Ed. 2d 43 (2007). . . . . . . . . . . . . . . . . . . . . . . . 20

FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868 (Tex. 2000). . . . . . . . 8

Forwood v. City of Taylor, 147 Tex. 161, 214 S.W.2d 282 (Tex. 1948). . . . . . . . 17

Fugate v. State, 2015 Tex. App. LEXIS 1198
(Tex. App. - Dallas 2015, n. pet. h.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Gables Realty Ltd. P’ship v. Travis Cent. Appraisal Dist.,
82 S.W.3d 869 (Tex. App. - Austin 2002, pet denied). . . . . . . . . . . . . . . . . . . . . . 20

Goode v. City of Dallas, 554 S.W.2d 753
(Tex. Civ. App. - Dallas 1977, no writ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Grayned v. City of Rockford, 408 U.S. 104,
92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Haug v. Franklin, 690 S.W.2d 646 (Tex. App. - Austin 1985, no writ). . . . . . . . 26

Jessen Assocs., Inc. v. Bullock, 531 S.W.2d 593 (Tex. 1975). . . . . . . . . . . . . . . . . 7

Lawrence v. State, 211 S.W.3d 883 (Tex. App. - Dallas),
affm’d 240 S.W.3d 912 (Tex. Crim. App.),
cert denied, 553 U.S. 1007, 128 S. Ct. 2056, 170 L. Ed. 2d 798 (2008). . . . . . . . . 7

Long v. State, 931 S.W.2d 285 (Tex. Crim. App. 1996).. . . . . . . . . . . . . . . . . . . . 10

viii
Lower Colo. River Auth. v. City of San Marcos, 523 S.W.2d 641 (Tex. 1975). . . 17

Maloney v. State, 294 S.W.3d 613
(Tex. App. - Houston [1st Dist.] 2009, pet. ref'd). . . . . . . . . . . . . . . . . . . . . . . . . . 10

Members of City Council of City of Los Angeles v. Taxpayers for Vincent,
466 U.S. 789, 104 S. Ct. 2118, 80 L. Ed. 2d 772 (1984). . . . . . . . . . . . . . . . . . . . 11

Mexico's Industries, Inc. v. Banco Mexico Somex, S.N.C,
858 S.W.2d 577 (Tex. App. - El Paso 1993, writ denied). . . . . . . . . . . . . . . . . . . 27

Monsanto Co. v. Cornerstones Mun. Util. Dist.,
865 S.W.2d 937 (Tex. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Papachristou v. City of Jacksonville, 405 U.S. 156,
92 S. Ct. 839, 31 L. Ed. 2d 110 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Pennington v. Singleton, 606 S.W.2d 682 (Tex. 1980). . . . . . . . . . . . . . . . . . . 9, 12

Proctor v. Andrews, 972 S.W.2d 729 (Tex.1998).. . . . . . . . . . . . . . . . . . . . . . . . . 17

Quick v. City of Austin, 7 S.W.3d 109 (Tex. 1998). . . . . . . . . . . . . . . . . . . . . . . . 19

Render v. State, 316 S.W.3d 846 (Tex. App. - Dallas 2010, pet. ref'd). . . . . . . . . . 7

Rose v. Doctors Hosp., 801 S.W.2d 841 (Tex. 1990).. . . . . . . . . . . . . . . . . . . . . . . 8

Santikos v. State, 836 S.W.2d 631 (Tex. Crim. App. 1992). . . . . . . . . . . . . . . . . . 11

Smith v. State, 309 S.W.3d 10 (Tex. Crim. App. 2010). . . . . . . . . . . . . . . . . . . . . . 7

Sonnier v. Crain, 613 F.3d 436 (5th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Spring Branch Indep. Sch. Dist. v. Stamos, 695 S.W.2d 556 (Tex. 1985). . . . . . . . 8

State v. Edmond, 933 S.W.2d 120 (Tex. Crim. App. 1996). . . . . . . . . . . . . . . . . . 10

ix
State v. Public Util. Comm'n, 883 S.W.2d 190 (Tex. 1994).. . . . . . . . . . . . . . . . . 20

State v. Rosseau, 396 S.W.3d 550 (Tex. Crim. App. 2013). . . . . . . . . . . . . . . . . . 10

State v. Wofford, 34 S.W.3d 671 (Tex. App. - Austin 2000, no pet.).. . . . . . . . . . 13

Sullivan v. State, 986 S.W.2d 708 (Tex. App. - Dallas 1999, no pet.). . . . . . . . . . 13

Tenet Hosps. Ltd. v. Rivera, 445 S.W.3d 698 (Tex. 2014). . . . . . . . . . . . . . . . . . . 10

Tex. Dep't of Transp. v. City of Sunset Valley,
146 S.W.3d 637 (Tex. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440 (Tex. 1993). . . . . 22

Texas Boll Weevil Eradication Found. v. Lewellen,
952 S.W.2d 454 (Tex. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Travelers Indem. Co. v. Fuller, 892 S.W.2d 848 (Tex. 1995). . . . . . . . . . . . . . . . . 8

U.S. v. Escalante, 239 F.3d 678 (5th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . 10

United States v. National Dairy Products Corp., 372 U.S. 29,
83 S. Ct. 594, 9 L. Ed. 2d 561 (1963). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

United States v. Robinson, 367 F.3d 278 (5th Cir. 2004). . . . . . . . . . . . . . . . . . . . 10

United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095,
95 L. Ed. 2d 697, 707 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Valero Ref. - Tex. L.P. v. State, 203 S.W.3d 556
(Tex. App. - Houston [14th Dist] 2006, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
455 U.S. 489, 102 S. Ct. 1186, 71 L. Ed. 2d 362 (1982). . . . . . . . . . . . . . . . . . . . 10

x
Vuong v. State, 830 S.W.2d 929 (Tex. Crim. App.),
cert. denied, 506 U.S. 997, 113 S. Ct. 595, 121 L. Ed. 2d 533 (1992).. . . . . . . . . 11

Walker v. Gutierrez, 111 S.W.3d 56 (Tex. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Washington v. Glucksberg, 521 U.S. 702, 117 S. Ct. 2258,
138 L. Ed. 2d 772 (1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Western Union Telegraph Co. v. State, 62 Tex. 630 (1884).. . . . . . . . . . . . . . . . . . 8

Williams v. National Mortgage Co., 1995 Tex. App. LEXIS 3398
(Tex. App. - Dallas 1995, no writ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Williams v. State, 514 S.W.2d 772
(Tex. Civ. App. - Beaumont 1974, writ ref’d n.r.e). . . . . . . . . . . . . . . . . . . . . . . . . 9

Williams v. Williams, 569 S.W.2d 867 (Tex. 1978). . . . . . . . . . . . . . . . . . . . . . . . 26

STATUTES AND RULES:

Tex. Gov’t Code § 311.011(a).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Tex. Gov’t Code § 311.021. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Tex. Gov’t Code § 311.032(a).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Tex. Loc. Gov’t Code § 51.001.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Tex. Loc. Gov’t Code § 9.001 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

CONSTITUTION:

Tex. Const. art XI, §5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

MISCELLANEOUS:

Op. Tex. Att'y Gen. No. GA-0870 (2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

xi
 STATEMENT OF THE CASE

In 2012, Farhad Nayeb (“Nayeb”) acquired and began to operate an existing

convenience store in the City of Melissa, Texas (the “City”), known as “Kim’s

Korner.” Both before and after Nayeb’s acquisition, these operations had been and

remained subject to the City’s Comprehensive Zoning Ordinance, Ordinance No. 92-

08, as amended (the “CZO”). After acquisition, Nayeb sought to utilize this property

for purposes of “check cashing” and “money transmission” neither of which

constituted permitted uses under the CZO. After the City requested that these uses

be terminated, Nayeb continued using the property for both “check cashing” and

“money transmission.” That conduct resulted in the City issuing 53 citations for CZO

violations, one for construction without a permit, and one for failure to appear.

These citations were originally tried in the Municipal Court and resulted, after

two trials, in fines totaling $92,240.00. Nayeb then appealed these convictions to the

County Court at Law of Collin County, Texas (the “Trial Court”), which ultimately

entered an Order on March 12, 2014, holding the CZO to be unconstitutionally vague

“because it does not give fair notice to citizens accused of violating the ordinance by

cashing checks or transmitting money allegedly contrary to the permitted uses of a

premise covered by the ordinance.” (CR 33, App. Tab 1). On February 19, 2015, the

Trial Court dismissed all of the pending cases other than the failure to appear citation.

xii
This Appeal results from the Trial Court’s February 19, 2015 Orders (CR 40, App.

Tab 2).

xiii
 STATEMENT REGARDING ORAL ARGUMENT

The State of Texas believes that oral argument would assist the Court in

determining the issues presented based on the history of these proceedings, the prior

decision of this Court concerning the constitutionality of the CZO being challenged,

and the overall viability of the unconstitutionality claim advanced by the Appellee.

xiv
 ISSUES PRESENTED

Issue No. 1. Whether the City of Melissa, Texas’ Comprehensive
Zoning Ordinance No. 92-08 is unconstitutionally vague as
determined by the Trial Court.

Issue No. 2. Whether the Trial Court failed to follow the established
rules of statutory construction by not applying required
constitutional presumptions, by ignoring prior
determinations of this Court that Comprehensive Zoning
Ordinance No. 92-08 is not vague, and by not properly
construing the plain language of the ordinance.

Issue No. 3. Whether a party has standing to challenge an ordinance as
unconstitutional when it has previously accepted the
benefits of the same ordinance.

xv
NO. 05-15-00279-CR, NO. 05-15-00280-CR, NO. 05-15-00281-CR,
NO. 05-15-00282-CR, NO. 05-15-00283-CR, NO. 05-15-00284-CR,
NO. 05-15-00285-CR, NO. 05-15-00286-CR, NO. 05-15-00287-CR,
NO. 05-15-00288-CR, NO. 05-15-00289-CR, NO. 05-15-00290-CR,
NO. 05-15-00291-CR, NO. 05-15-00292-CR, NO. 05-15-00293-CR,
NO. 05-15-00294-CR, NO. 05-15-00295-CR, NO. 05-15-00296-CR,
NO. 05-15-00297-CR, NO. 05-15-00298-CR, NO. 05-15-00299-CR,
NO. 05-15-00300-CR, NO. 05-15-00301-CR, NO. 05-15-00302-CR,
NO. 05-15-00303-CR, NO. 05-15-00304-CR, NO. 05-15-00305-CR,
NO. 05-15-00306-CR, NO. 05-15-00307-CR, NO. 05-15-00308-CR,
NO. 05-15-00309-CR, NO. 05-15-00310-CR, NO. 05-15-00311-CR,
NO. 05-15-00312-CR, NO. 05-15-00313-CR, NO. 05-15-00314-CR,
NO. 05-15-00315-CR, NO. 05-15-00316-CR, NO. 05-15-00317-CR,
NO. 05-15-00318-CR, NO. 05-15-00319-CR, NO. 05-15-00320-CR,
NO. 05-15-00321-CR, NO. 05-15-00322-CR, NO. 05-15-00323-CR,
NO. 05-15-00324-CR, NO. 05-15-00325-CR, NO. 05-15-00326-CR,
NO. 05-15-00327-CR, NO. 05-15-00328-CR, NO. 05-15-00329-CR,
NO. 05-15-00330-CR, NO. 05-15-00331-CR

IN THE COURT OF APPEALS
FOR THE FIFTH JUDICIAL DISTRICT
OF TEXAS AT DALLAS

STATE OF TEXAS,

Appellant,

vs.

FARHAD NAYEB,

Appellee.

1
 APPELLANT’S BRIEF

The State of Texas respectfully submits its brief in appeal of the Trial Court’s

dismissal of Cause Nos. 002-82535-2013, 002-82536-2013, 002-82537-2013, 002-

82538-2013, 002-82539-2013, 002-82540-2013, 002-82541-2013, 002-82545-2013,

002-82546-2013, 002-82551-2013, 002-82553-2013, 002-82554-2013, 002-82555-

2013, 002-82557-2013, 002-82560-2013, 002-82563-2013, 002-82564-2013, 002-

82565-2013, 002-84704-2013, 002-84810-2013, 002-84811-2013, 002-84812-2013,

002-84813-2013, 002-84814-2013, 002-84815-2013, 002-84823-2013, 002-84824-

2013, 002-84825-2013, 002-84826-2013, 002-84827-2013, 002-84828-2013, 002-

84829-2013, 002-84830-2013, 002-84831-2013, 002-84832-2013, 002-84833-2013,

002-84834-2013, 002-84835-2013, 002-84836-2013, 002-84837-2013, 002-84838-

2013, 002-84839-2013, 002-84840-2013, 002-84841-2013, 002-84842-2013, 002-

84843-2013, 002-84844-2013, 002-84845-2013, 002-84846-2013, 002-84847-2013,

002-84848-2013, 002-84849-2013, and 002-84850-2013 dated February 29, 2015,

each styled State of Texas vs. Farhad Nayeb and consolidated solely for purposes of

trial with the failure to appear case under Cause No. 002-82534-2013. The failure to

2
appear case has not been appealed. This appeal is from County Court at Law No. 2,

Collin County, Texas, the Honorable Barnett Walker presiding.

The Appendix will be referred to by tab reference. The Reporter's Record in

this matter will be referred to by Volume Number followed by the page and line(s).

The Clerk’s Record will be referred to by “CR” followed by the relevant page

number.

3
 STATEMENT OF FACTS

The City first adopted the CZO on August 25, 1992 as Ordinance No. 92-08.

The CZO was thereafter amended on December 9, 1997, July 14, 1998, October 9,

2001, December 10, 2002, September 9, 2003, March 10, 2004, January 25, 2005,

February 22, 2005, September 26, 2006, November 15, 2011, and March 27, 2012,

by the City Council to fulfill the purposes set forth in the CZO (Supp. CR 38, App.

Tab 3). Neither “check cashing” nor “money transmission” have ever been listed in

the CZO as permitted uses within the C-2 (General Commercial) zoning district (the

“C-2 Zoning District”) the zoning classification of the Kim’s Korner property. (RR

Vol. 2 p. 8, l. 16 thorough p. 9, l. 8).

In the summer of 2012, Nayeb acquired Kim’s Korner. (RR Vol. 3, p. 14, ll.

5-8). Kim’s Korner had been in business since 1982. (RR Vol 3, p. 28, l. 15-18).

After purchasing the convenience store, Nayeb sought a new certificate of occupancy

(the “CO”), but was told an additional CO was unnecessary unless there was a

change in the uses to which the property was placed. (RR Vol. 3, p. 14, l. 9-11).

Nayeb reported no changes in use, that he was only going to do some paint and

outside stucco work, and that no construction work would be done. (RR Vol. 3, p.

14, ll. 12-15). Then, without seeking approval from the City or obtaining a building

permit, Nayeb constructed a booth within the convenience store, complete with

4
Kevlar glass, for the purpose of engaging in a check cashing enterprise. (RR Vol. 3,

p. 15, ll. 9 - 20). After completion of construction, the City’s Code Enforcement

Officer observed check cashing-activities at the booth within the store. (RR Vol. 3,

p. 16, l. 23 through p. 17, l. 5; p. 33, l. 7 - 11). Check cashing was not a previous use

for the Kim’s Korner property prior to Nayeb’s acquisition. (RR Vol. 3, p. 15, l. 6 -

8). The City, through its City Manager, communicated with Nayeb as well as all

similarly situated businesses, requesting that the check-cashing and money transfer

activities be terminated. The other similarly situated business did cease their actions;

however, Nayeb did not. (RR Vol. 3, p. 37, l. 22 through p. 38, l. 20).

Because Nayeb failed to comply with the City’s written requests, the citations

for CZO violations were issued. Additional citations were issued for construction of

the check cashing booth without a permit and for failure to appear at the initial

hearing on the CZO citations. The convictions by the Municipal Court on each of

these citations led to the appeal to the County Court at Law.

In that appeal Nayeb sought consolidation of all of the citations. (CR 7, 12).

The Trial Court consolidated each of the cases for purposes of trial under Cause No.

002-82534-2013, the failure to appear action. (CR10, 23). Also, during the appeal

to the County Court, the CZO’s constitutionality became an issue when Nayeb filed

his Motion Challenging Constitutionality of the CZO (the “Motion”). (Supp. CR 26).

5
The Motion’s essential arguments are that “Section 20 of the Ordinance is fatally

vague because it fails to prohibit the particular accessory uses which are permitted

and which are prohibited, or otherwise give any standards by which the code

enforcement officer is to determine whether an accessory use is permitted.” (CR 30).

At a hearing on the constitutionality issue, the Trial Court was made aware of

this Court’s prior opinion in Baird v. City of Melissa, 170 S.W.3d 921, 924 (Tex.

App. - Dallas 2005, pet. denied) in which this CZO was reviewed and construed.

That opinion stated that “[t]he plain language of the text of the ordinance prohibits

uses that are not specified as ‘permitted’ under the schedule [of uses].’” Id.

Notwithstanding this prior interpretation, the Trial Court’s March 12, 2014 Order

found the CZO to be unconstitutionally vague even though neither “check cashing”

nor “money transmission” are identified as permitted uses within the ordinance, and,

by their omission, are prohibited based on the express language of the Baird opinion.

This Appeal follows the Trial Court’s dismissal of each of the criminal cases based

on the unconstitutionality ruling since the CZO provides the underlying basis for each

of the citations resulting from multiple CZO violations. (CR 40).

6
 ARGUMENT

I. STANDARD OF REVIEW.

The sufficiency of a charging instrument presents a question of law. Smith v.

State, 309 S.W.3d 10, 13 (Tex. Crim. App. 2010). The standard of review is thus de

novo. Fugate v. State, 2015 Tex. App. LEXIS 1198 * 3 (Tex. App. - Dallas 2015, n.

pet. h.). The constitutionality of a criminal statute is a question of law which is

reviewed de novo. Render v. State, 316 S.W.3d 846, 856 (Tex. App. - Dallas 2010,

pet. ref'd).

II. APPLICABLE PRESUMPTIONS AND BURDEN OF PROOF.

A. The Required Presumptions.

When reviewing the constitutionality of a statute, including a municipal

ordinance, a reviewing court must presume that the statute is constitutional. Walker

v. Gutierrez, 111 S.W.3d 56, 66 (Tex. 2003); Lawrence v. State, 211 S.W.3d 883, 890

(Tex. App. - Dallas), affm’d 240 S.W.3d 912 (Tex. Crim. App.), cert denied, 553 U.S.

1007, 128 S. Ct. 2056, 170 L. Ed. 2d 798 (2008). Further, courts must give a liberal

interpretation in favor of constitutionality when legislation is challenged. Jessen

Assocs., Inc. v. Bullock, 531 S.W.2d 593, 600 (Tex. 1975). Additionally, when

analyzing the constitutionality of a statute, courts, if possible, interpret the statute in

a manner that avoids constitutional infirmity. Barshop v. Medina County

7
Underground Water Conservation Dist., 925 S.W.2d 618, 629 (Tex. 1996); FM

Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 873 (Tex. 2000). Where, like

here, a facial constitutional challenge to a statute is made, courts consider the statute

only as it is written, rather than how it operates in practice. Id. Finally, if any

provision of the statute is held to be invalid, that invalidity does not affect other

provisions that can properly be given effect in the absence of the invalid provisions.

Rose v. Doctors Hosp., 801 S.W.2d 841, 844 (Tex. 1990)(citing Western Union

Telegraph Co. v. State, 62 Tex. 630, 634 (1884)). To survive a vagueness challenge,

a statute need not spell out with perfect precision what conduct it forbids.

Commission for Lawyer Discipline v. Benton, 980 S.W.2d 425, 437 (Tex. 1998). A

court will uphold the statute if it can determine a reasonable construction that will

render the statute constitutional and carry out the legislative intent. Ely v. State, 582

S.W.2d 416, 419 (Tex. Crim. App. 1979).

B. The Burden of Proof.

The burden of proof is on the party challenging the constitutionality of the

statute. Travelers Indem. Co. v. Fuller, 892 S.W.2d 848, 850 (Tex. 1995); Spring

Branch Indep. Sch. Dist. v. Stamos, 695 S.W.2d 556, 558 (Tex. 1985); Ex parte

Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978). The Court may not

substitute its judgment for that of the legislative body. Doyle v. Harben, 660 S.W.2d

8
586, 589 (Tex. App. - San Antonio 1983, no writ). The invalidity must be apparent

without reasonable doubt. Williams v. State, 514 S.W.2d 772, 773 (Tex. Civ. App. -

Beaumont 1974, writ ref’d n.r.e).

III. THE TRIAL COURT ERRONEOUSLY INVALIDATED THE
CZO AS VAGUE.

A. The Determining Factors for Vagueness.

The Texas Supreme Court has determined that “regulatory statutes governing

business activity are allowed greater leeway than is allowed criminal statutes in

applying the ‘fair notice’ test; no more than ‘a reasonable degree of certainty can be

demanded’; and that ‘statutes are not automatically invalidated as vague simply

because difficulty is found in determining whether marginal offenses fall within their

language.’" Pennington v. Singleton, 606 S.W.2d 682, 689 (Tex. 1980) (citing

Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S. Ct. 839, 31 L. Ed. 2d

110 (1972); Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 340, 72 S. Ct.

329, 96 L. Ed. 367 (1952); and United States v. National Dairy Products Corp., 372

U.S. 29, 32, 83 S. Ct. 594, 9 L. Ed. 2d 561 (1963)). Generally, a criminal statute

which does not deal merely with regulatory concerns is not vague if it (a) gives a

person of ordinary intelligence a reasonable opportunity to know what conduct is

prohibited; and (b) provides sufficient notice to law enforcement to prevent arbitrary

9
or discriminatory enforcement. U.S. v. Escalante, 239 F.3d 678, 680 (5th Cir. 2001)

(quoting City of Chicago v. Morales, 527 U.S. 41, 56, 119 S. Ct. 1849, 144 L. Ed. 2d

67 (1999)); see also State v. Edmond, 933 S.W.2d 120, 125 (Tex. Crim. App. 1996);

Long v. State, 931 S.W.2d 285, 287 (Tex. Crim. App. 1996). However, a statutory

provision need not be mathematically precise; it need only give fair warning in light

of common understanding and practices. Grayned v. City of Rockford, 408 U.S. 104,

110-11, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972).

Unless First Amendment freedoms are implicated, a facial vagueness challenge

can succeed only if it is shown that the law is unconstitutionally vague in all of its

applications. State v. Rosseau, 396 S.W.3d 550, 557-58 (Tex. Crim. App. 2013);

Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495, 102

S. Ct. 1186, 1191, 71 L. Ed. 2d 362 (1982); Tenet Hosps. Ltd. v. Rivera, 445 S.W.3d

698, 702 (Tex. 2014). Courts consider a facial challenge to a legislative act to be “the

most difficult challenge to mount successfully, since the challenger must establish

that no set of circumstances exists under which the Act would be valid." United States

v. Robinson, 367 F.3d 278, 290 (5th Cir. 2004). However, before a court may reach

the question of whether a statute is impermissibly vague in all its applications, the

party making the challenge must show that the statute was unconstitutional as applied

to him. Maloney v. State, 294 S.W.3d 613, 629 (Tex. App. - Houston [1st Dist.] 2009,

10
pet. ref'd). The fact that the statute may be, in its operation, unconstitutional as to

others is not sufficient. Vuong v. State, 830 S.W.2d 929, 941 (Tex. Crim. App.), cert.

denied, 506 U.S. 997, 113 S. Ct. 595, 121 L. Ed. 2d 533 (1992). Even if a statute

might operate unconstitutionally under some circumstances, that fact alone is

insufficient to render it invalid. United States v. Salerno, 481 U.S. 739, 745, 107

S.Ct. 2095, 2100, 95 L. Ed. 2d 697, 707 (1987). Additionally, a statute is

unconstitutionally void for vagueness only when it specifies no standard of conduct

or when it defines no core of prohibited activity. Briggs v. State, 740 S.W.2d 803,

806 (Tex. Crim. App. 1987); Duncantell v. State, 230 S.W.3d 835, 845 (Tex. App. -

Houston [14th Dist] 2007, pet. ref’d). Finally, a facial challenge will fail when a

statute has “a plainly legitimate sweep.” Sonnier v. Crain, 613 F.3d 436, 443 (5th Cir.

2010) (citing Washington v. Glucksberg, 521 U.S. 702, 740 n.7, 117 S. Ct. 2258, 138

L. Ed. 2d 772 (1997)).

The “over breadth” doctrine related to the constitutional analysis of legislative

enactments has not been recognized outside the limited context of the First

Amendment. Salerno, 481 U.S. at 745; Members of City Council of City of Los

Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798, 104 S. Ct. 2118, 80 L. Ed. 2d

772 (1984); Santikos v. State, 836 S.W.2d 631, 633 (Tex. Crim. App. 1992). Here,

no First Amendment rights are implicated.

11
 B. The Trial Court’s Analysis.

In this case, the Trial Court ruled that the CZO was vague and ambiguous;

however, it ignored the limitations imposed by Pennington on the interpretation of

purely regulatory statutes governing business activities and only considered the first

element of vagueness of general criminal statutes - the reasonable person standard.

(RR Vol. 4, p. 40, l. 19-23; p. 41, l. 13-25). The Trial Court determined that the CZO

was impermissibly vague in all of its applications and made no attempt to determine

if any provisions could be merely severed from the ordinance to allow the balance to

remain in effect. Essentially, the Trial Court found that no set of circumstances

existed under which the CZO could be valid.

C. Failures of the Vagueness Challenge.

The deficiencies of Nayeb’s vagueness challenge are at least threefold.

First, the Trial Court held that the entirety of the CZO was unconstitutionally

vague, not just the application of the term “accessory use.” However, the March 12,

2014 Order specifically references the absence of fair notice when CZO violations are

based on “check cashing” and “money transmission.” That unconstitutionality

determination therefore violates the principles that (a) the CZO must be vague in all

of its applications and (b) those provisions which were unaffected by the term

“accessory use” remain valid. Neither determination was made. (CR 33,App. Tab

12
1). Because Nayeb did not and cannot demonstrate that the CZO is vague in all of its

applications, the vagueness challenge must fail. Sullivan v. State, 986 S.W.2d 708,

714 (Tex. App. - Dallas 1999, no pet.). Also, the Trial Court should have severed out

those aspects of the CZO which it found to be unconstitutional and saved the balance.

State v. Wofford, 34 S.W.3d 671, 681-82 (Tex. App. - Austin 2000, no pet.). Here,

Section 36 of the CZO contains just such a severance provision and, pursuant to

Section 311.032(a), Tex. Gov’t Code, the offending provisions should have been

severed. Nayeb did not seek to have any severance made and the Trial Court made

none.

Second, the CZO specifically sets forth a schedule of permitted activities in a

C-2 Zoning District. All other uses are prohibited. Baird, 170 S.W.3d at 925. This

Court has determined, when construing other municipal ordinances, that uses not

specifically allowed excluded other uses claimed to be incidental or accessory to a

permitted use. City of Dallas v. Haworth, 218 S.W.2d 264 (Tex. Civ. App. - Dallas

1949, writ ref’d n.r.e.); Goode v. City of Dallas, 554 S.W.2d 753 (Tex. Civ. App. -

Dallas 1977, no writ); City of Mesquite v. Coltharp, 685 S.W.2d 78 (Tex. App. -

Dallas 1984, writ ref’d n.r.e.). The Trial Court, disregarding this Court’s opinion in

Baird as to the same ordinance, determined that the failure to list both “check

13
cashing” and “money transmission” as prohibited activities failed to provide fair

notice to Nayeb as a reasonable person.

Third, Nayeb made no attempt to demonstrate with admissible evidence how

the ordinance was unconstitutional as applied to him. To support his position, Nayeb

merely argued, without any supporting evidence, that he received disparate treatment

from the Code Enforcement Officer.

Notwithstanding the foregoing, Nayeb challenged the facial constitutionality

of the CZO by arguing that no reasonable person could understand what was and was

not a permitted use within the C-2 Zoning District. (RR Vol. 2, p. 6, l. 23 through p.

7, l. 2). To advance this position, Nayeb asserted that the term “accessory use”

included every possible use if it was “subordinate to or a minor consequence of the

general business.” (RR Vol. 4, p. 33, l. 12 through p. 34, l. 5). Contrary to Baird,

Nayeb argued that the omission from the grid of permitted uses does not mean the

omitted use is prohibited. (RR Vol. 4, p. 35, l. 2-4). The Trial Court agreed with this

challenge and declared the entirety of the CZO unconstitutional. (CR 33, App. Tab

1).

However, a statute is not facially invalid unless it could not be constitutional

under any circumstances. Barshop, 925 S.W.2d at 631. This criteria was never

addressed. Further, an ordinance is not facially invalid merely because the terms used

14
are not specifically defined. Engelking v. State, 750 S.W.2d 213, 215 (Tex. Crim.

App. 1988). These principles were both ignored. Additionally, a statute is not

unconstitutionally vague if, after the application of well-accepted canons of statutory

construction, the statute can be given a clear meaning. Bynum v. State, 767 S.W.2d

769, 774 (Tex. Crim. App. 1989). For example, the Texas Code Construction Act

required the Trial Court to (a) presume that compliance with the constitution of this

state and the United States was intended; (b) the entire statute was intended to be

effective; (c) a just and reasonable result was intended; and (d) a result feasible of

execution was intended; and (e) public interest is favored over any private interest.

Tex. Gov’t Code § 311.021. No attempt was made to satisfy any of these standards.

Finally, Nayeb merely argued in his Motion, without presentation of any supporting

evidence, that he was being subject to disparate treatment from similarly situated

“banks and other financial institutions, grocery stores, and other convenience stores

within the C-2 district.” (Supp. CR 35). However, neither motions nor argument

constitute evidence. Williams v. National Mortgage Co., 1995 Tex. App. LEXIS

3398 * 5 (Tex. App. - Dallas 1995, no writ). Without evidence, this argument within

pleadings cannot support a determination that the CZO is unconstitutional as applied

to Nayeb.

15
 At the hearing on the State’s Motion for Reconsideration (CR 33), the Trial

Court was made aware of the fact the term “accessory use” was specifically used

within the CZO only in connection with the definitions of “Farms”, “Orchards”, and

“Schools, public” - the term “accessory use” has absolutely no application to

convenience stores including Kim’s Korner. (Supp. CR 38, App. 3, Sections 31.2

(37),(68), and (82)). (RR Vol. 4, p. 15, ll. 6-8, p. 17, ll. 8-14; p. 19, l. 5 -10). The

Trial Court rejected this argument and stated that the CZO failed to give fair notice

of “accessory use” restrictions. (RR Vol. 4, p. 41, l. 13 -25). However, the words or

phrases of the ordinance must be read in the context in which they are used. Tex.

Gov’t Code § 311.011(a). The State, through the CZO, demonstrated that each of the

activities, other than check cashing and money transmission, undertaken by Nayeb

at Kim’s Korner after his acquisition were permitted uses in a C-2 Zoning District.

(Supp. CR 38, App. Tab 3, Section 20, p. 21-25). Finally, the Trial Court was

provided a copy of this Court’s opinion in Baird. (RR Vol. 4, p. 14, ll. 13 -22).

Notwithstanding this evidence, controlling authority and argument, the Trial Court

erroneously ruled the CZO to be unconstitutionally vague.

IV. THE TRIAL COURT ERRONEOUSLY FOUND THE CZO TO BE
UNCONSTITUTIONAL.

A. Application of Rules of Construction.

16
 The same rules applied to construe statutes are used to construe municipal

ordinances. Bd. of Adjustment of the City of San Antonio v. Wende, 92 S.W.3d 424,

430 (Tex. 2002). Also, like statutory challenges, disputes regarding city ordinances

begin with a presumption of constitutionality. Eddins Enters., Inc. v. Town of

Addison, 280 S.W.3d 544, 547 (Tex. App. - Dallas 2009, no pet.). An ordinance is

also presumed to be valid. Austin Police Ass'n v. City of Austin , 71 S.W.3d 885, 888

(Tex. App. - Austin 2002, no pet.). The challenging party is held to its "extraordinary

burden" to establish that the ordinance is invalid. City of College Station v. Turtle

Rock Corp., 680 S.W.2d 802, 805 (Tex. 1984).

B. A Home-Rule City’s Discretionary Powers.

As a home-rule municipality, the City has broad discretionary powers. City of

Richardson v. Responsible Dog Owners of Tex., 794 S.W.2d 17, 19 (Tex. 1990).

These powers are derived from the Texas Constitution and are limited only by the

City’s Charter or specific legislative action. Tex. Const. art XI, § 5; Tex. Loc. Gov’t

Code § 9.001, et seq. Home-rule cities have the full power of self-government and

look to the Legislature, not for grants of power, but only for limitations of their

powers. Proctor v. Andrews, 972 S.W.2d 729, 733 (Tex.1998); Lower Colo. River

Auth. v. City of San Marcos, 523 S.W.2d 641, 643 (Tex. 1975) (citing Forwood v.

City of Taylor, 147 Tex. 161, 214 S.W.2d 282 (Tex. 1948)). In Forwood, the Texas

17
Supreme Court summarized the home-rule doctrine set forth in Article XI, Section 5

of the Texas Constitution as follows:

It was the purpose of the Home-Rule Amendment [to the
Texas Constitution]... to bestow upon accepting cities and
towns of more than 5,000 population full power of self-
government, that is, full authority to do anything the
legislature could theretofore have authorized them to
do. The result is that now its is necessary to look to the
acts of the legislature not for grants of power to such
cities but only for their limitations on their power.
(Emphasis added).

Id. at 286; see also, Op. Tex. Att'y Gen. No. GA-0870 (2011) (stating a home-rule city

has all the powers of the state not inconsistent with the Texas Constitution and

general laws of the state).

The Legislature has given the governing body of a municipality broad

discretion in the exercise of its powers and authority, subject to the express provisions

of the charter in instances where they are applicable. Tex. Loc. Gov’t Code § 51.001.

An ordinance is a valid exercise of a city's police power so long as the regulation was

adopted to accomplish a legitimate goal, that is, it must be "substantially related" to

the health, safety, or general welfare of the people. Turtle Rock, 680 S.W.2d at 805;

Ellis v. City of West University Place, 141 Tex. 608, 175 S.W.2d 396 (1943). Zoning

is an exercise of police power. As the Court stated in Brookside Village v. Comeau,

633 S.W.2d 790,792-93 (Tex. 1982):

18
 Zoning regulation is a recognized tool of community
planning, allowing a municipality, in the exercise of its
legislative discretion, to restrict the use of private property.
Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.
Ct. 114, 71 L. Ed. 303(1926); Lombardo v. City of Dallas,
124 Tex. 1, 73 S.W.2d 475 (1934). Judicial review of a
municipality's regulatory action is necessarily
circumscribed as appropriate to the line of demarcation
between legislative and judicial functions. As stated
previously by this Court: ‘A city ordinance is presumed to
be valid … (and) … the courts have no authority to
interfere unless the ordinance is unreasonable and
arbitrary-a clear abuse of municipal discretion.’

The Court went on to say “[i]t is also equally well settled that zoning ordinances fall

within the police power of municipalities." Id. at 793.

If reasonable minds may differ as to whether a particular ordinance has a

substantial relationship to the public health, safety, morals, or general welfare, no

clear abuse of discretion is shown, and the ordinance must stand as a valid exercise

of the City's police power. Quick v. City of Austin, 7 S.W.3d 109, 117 (Tex. 1998).

Therefore, the CZO must be “scrutinized under the aforementioned principles relating

to a municipality's exercise of general police power.” Comeau, 633 S.W.2d at 793.

If the evidence reveals a fact issue in this respect, the ordinance must be upheld. Id.

The Trial Court followed none of these principles.

The other rules of statutory construction which apply to the Trial Court’s

interpretation of the CZO are:

19
a. every word, phrase, and expression is reviewed as if it were deliberately

chosen and presume words excluded from a statute were excluded on

purpose. Ex parte Hood, 211 S.W.3d 767, 773 (Tex. Crim. App.), cert.

denied, 128 S.Ct. 48, 169 L. Ed. 2d 43 (2007); Gables Realty Ltd. P’ship

v. Travis Cent. Appraisal Dist., 82 S.W.3d 869, 873 (Tex. App. - Austin

2002, pet denied);

b. if the meaning of an ordinance is doubtful or ambiguous, the

construction given by the body charged with its enforcement or

administration is entitled to weight. Calvert v. Kadane, 427 S.W.2d

605, 608 (Tex. 1968); State v. Public Util. Comm'n, 883 S.W.2d 190,

195 (Tex. 1994); City of Alamo Heights v. Boyar, 158 S.W.3d 545, 551

(Tex. App. - San Antonio 2005, no pet.);

c. the enactment as a whole, not isolated provisions, are construed. Tex.

Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex.

2004); City of Houston v. Todd, 41 S.W.3d 289, 298 (Tex. App. -

Houston [1st Dist.] 2001, pet. denied);

d. the primary objective is to carry out the intentions of the municipality's

legislative body. Bolton v. Sparks, 362 S.W.2d 946, 952 (Tex. 1962);

20
 Monsanto Co. v. Cornerstones Mun. Util. Dist., 865 S.W.2d 937, 939

(Tex. 1993); and

e. no meaning is assigned to a provision that would be inconsistent with

other provisions of the enactment. City of Dallas v. Blanton, 200

S.W.3d 266, 277 (Tex. App. - Dallas 2006, no pet.); Baird, 170 S.W.3d

at 925.

The Trial Court again failed to follow these rules of construction.

C. Nayeb’s Failure to Carry His Burden of Proof.

Here, Nayeb, as the party with the burden of proof, provided no evidence which

demonstrated that (a) prohibition of “check cashing” and “money transmission” was

a clear abuse of the City’s discretion or, (b) alternatively, did not relate to the public

health, safety, morals, or general welfare. Nayeb made no effort to rebut the State’s

evidence of how the term “accessory use” was construed by the City as the body

charged with its enforcement or administration and therefore the proper construction

to be applied to this provision of the CZO. Further, Nayeb did not attempt to

demonstrate why the City chose to only employ the term “accessory use” in

connection with the CZO’s definitions of “Farms”, “Orchards”, and “Public, schools”

and thereby exclude all other applications of that term. The State specifically argued

that the application of “accessory use” was limited to those three definitions. (RR

21
Vol. 4, p. 14, l. 23-25; p. 15, l. 14-21; p. 17, l. 19-24). Additionally, Nayeb did not

address why the CZO was not a lawful exercise of the City’s police power. Finally,

Nayeb and the Trial Court adopted a rationale that if a convenience store customer

wrote a check for any amount over the cost of the goods being purchased such a

transaction constituted “check cashing” even though no fee was charged for that

service and the action was not being undertaken as a separate and identifiable

business. (RR Vol. 4, p. 39, l. 2-18). This reasoning clearly assigned a meaning to

that hypothetical transaction which was rebutted in its entirety by the City’s Code

Enforcement Officer’s testimony. (RR Vol. 3, p. 29, l. 13 through p. 30, l. 5). This

hypothetical ignores the plain language of the CZO and instead attempts to interject

how the ordinance might operate in practice. However, a reviewing court cannot

consider these hypotheticals but must determine if the statute is unconstitutional only

when applied to a defendant's specific conduct. Briggs, 740 S.W.2d at 806. Further,

courts do not engage in hypothetical analysis to determine whether the statute

provides adequate notice since no actual or imminent harm is addressed thus

rendering any decision based on the hypothetical merely advisory. Texas Ass'n of

Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993); Valero Ref. - Tex.

L.P. v. State, 203 S.W.3d 556, 563 (Tex. App. - Houston [14th Dist] 2006, no pet.).

Finally, a statute cannot be facially invalid simply because it may be

22
unconstitutionally applied under hypothetical facts which have not yet arisen. Texas

Boll Weevil Eradication Found. v. Lewellen, 952 S.W.2d 454, 463 (Tex. 1997).

Here, the CZO is clear that the term “accessory use” is specifically limited in

its application to three defined instances, none of which are applicable to convenience

stores. Notwithstanding the rebuttal by the City’s Code Enforcement Officer to

Nayeb’s hypothetical, the Trial Court adopted Nayeb’s faulty hypothetical as a basis

for making its determination that the CZO was unconstitutionally vague.

In contrast to the State’s evidence and argument, Nayeb merely chose to rely

on a position that the term “accessory use,” including everything he deemed to be

incidental to the primary uses permitted for a convenience store, demonstrated the

ambiguity of the CZO and thereby rendered it unconstitutionally vague. The Trial

Court agreed. (RR Vol. 4, p. 41, l. 13 through p. 42, l. 7). Nayeb also argued that

“accessory use” does not appear on the grid of permitted uses in the CZO. (RR Vol.

4, p. 34, l. 23-25). In support of these arguments, Nayeb set forth his uses as being

convenience store, gas station, fudge factory, beverage sales, restaurant and food

sales, each of which he describes as being accessory to the convenience store use.

(RR Vol. 2, p. 6, l. 5 through p. 7, l. 8). What Nayeb ignored was that the CZO

permits uses within the C-2 Zoning District assigned to Nayeb’s property for (a)

alcoholic beverage sales; (b) bakery; (c) grocery store; (d) meat market; (e) pharmacy;

23
(f) restaurant; and (g) service station. (Supp. CR 38, App. Tab 3, Section 20, p. 21 -

25). As a result, the CZO permits all of the uses Nayeb has undertaken on his

property, other than “check cashing” and “money transmission.” Nayeb failed to

provide any evidence or to otherwise demonstrate, other than through his own

Counsel’s arguments, that “check cashing” and “money transmission” were accessory

to the functions of a convenience store. In fact, notwithstanding Nayeb’s argument

of disparate treatment, the State’s evidence was clear that no other convenience store

in the City engaged in those allegedly “accessory uses.” (RR Vol. 3, p. 30, l. 5 - 11).

The City, exercising its statutory prerogatives, adopted the CZO and limited the uses

of property within the C-2 Zoning District, including “accessory uses,” to those

specifically listed. This view is consistent with this Court’s previous determination

when interpreting this exact ordinance that “[t]he plain language of the text of the

ordinance prohibits uses that are not specified as ‘permitted’ under the schedule [of

uses].” Baird, 170 S.W.3d at 924. Therefore, even if a use is accessory to a primary

use, if that additional “accessory” use is not permitted by the CZO it is, by definition,

prohibited. The State specifically informed the Trial Court of this ruling. (RR Vol

4, p. 14, l. 13 - 16). Notwithstanding having this Court’s interpretation of the CZO

and the State’s consistent argument that Nayeb had not demonstrated either that the

CZO was vague or that he had been subjected to disparate treatment, the Trial Court

24
held contrary to both the Baird determination and the State’s argument. (CR 33, App.

Tab 1). By failing to follow both established rules of construction as well as this

Court’s opinion in Baird, the Trial Court failed to apply established law to properly

interpret the CZO in the context of Nayeb’s complaints.

Nayeb also argued that the CZO failed to define 105 of the 117 permitted uses

listed within the ordinance. However, Nayeb has no standing to challenge any use

to which he is not attempting to place Kim’s Korner since he is unaffected by the lack

of any definition of those permitted uses. To have standing to challenge a statute as

unconstitutional, Nayeb (1) "must suffer some actual or threatened injury under the

statute" and (2) "must contend that the statute unconstitutionally restricts [his] own

rights," not someone else's. Barshop, 925 S.W.2d at 626. For all of the alleged

deficiencies other than the “accessory use” argument, Nayeb cannot satisfy either test.

D. Nayeb’s Acceptance of the Benefits of the CZO Precluded the
Constitutional Challenge For Lack of Standing.

This Court has determined that “[i]t is a fundamental rule of constitutional law

that a court will not pass upon the constitutionality of a statute at the instance of one

who has availed himself of its benefits.” City of Garland v. Kaliney, 1996 Tex. App.

LEXIS 935 * 10 (Tex. App. - Dallas 1996, writ denied); see also McElhaney v. City

of Tyler, 926 S.W.2d 597, 602 (Tex. App. - Tyler 1996, writ denied); Cheatum v.

25
Texas Workers' Compensation Comm'n & University of Texas System, 2001 Tex.

App. LEXIS 822 * 5 (Tex. App - Dallas 2001, no pet.). Thus, the question is whether

the party has standing to institute a constitutional challenge. This Court has

previously determined that persons similarly situated to Nayeb do not. Id. at * 6.

Here, Nayeb accepted the benefits of a CO issued under the CZO and then,

unsatisfied with its breadth, sought a declaration of unconstitutionality for the entirety

of the ordinance. The CZO defines a CO as “[a]n official certificate issued by the

City of Melissa through the enforcing official indicating conformance with or

approved conditional waiver from the zoning regulations and authorizing legal use

of the premises for which it is issued.” (Supp. CR 38, Tab 3, Section 31.2(20)). As

a result of his acceptance of the benefits of the CO which authorized the uses which

were permitted under the CZO, Nayeb has waived any claims based on use limitations

imposed by the CZO for other uses of his property. Haug v. Franklin, 690 S.W.2d

646, 650 (Tex. App. - Austin 1985, no writ). A party waives its constitutional or

statutory rights by intelligently, voluntarily, and knowingly relinquishing a known

right or acting inconsistent with claiming that right. Williams v. Williams, 569

S.W.2d 867, 870 (Tex. 1978). The acceptance of the benefits derived from the CZO

constitutes a waiver of any claim of unconstitutionality and Nayeb is estopped to take

a contrary position.

26
 Further, the principle of quasi estoppel forbids Nayeb from accepting the

benefits of a law and then subsequently taking an inconsistent position to avoid

corresponding obligations or effects. Mexico's Industries, Inc. v. Banco Mexico

Somex, S.N.C, 858 S.W.2d 577, 581 n. 7 (Tex. App. - El Paso 1993, writ denied);

Eckland Consultants, Inc. v. Ryder, Stilwell Inc., 176 S.W.3d 80, 87 (Tex. App. -

Houston [1st Dist.] 2004, no pet.). It applies when it would be unconscionable to

allow a person or party to maintain a position inconsistent with one in which he

acquiesced, or from which he accepted a benefit. Cambridge Production, Inc. v.

Geodyne Nominee Corp.,292 S.W.3d 725, 732 (Tex. App. - Amarillo 2009, pet.

denied). Nayeb accepted the benefits of the CZO through his use and occupancy of

the premises known as Kim’s Korner. He is now estopped to assert that the

ordinance, thru which his CO was issued, is unconstitutional.

Nayeb, by conducting business under the CO and profiting from that endeavor,

cannot subsequently take a position inconsistent with the rights previously granted

by the City and, without standing, challenge the constitutionality of the CZO through

which he was permitted the privilege of using Kim’s Korner to sell products to the

citizens of the City.

27
 CONCLUSION

Nayeb failed to sustain his burden of proof to overcome the constitutional

presumptions and the rules of statutory construction favoring the CZO’s

constitutionality. The State demonstrated by competent evidence the City’s

interpretation of the CZO’s prohibitions against “check cashing” and “money

transmission” which were being violated and resulted in the issuance of the citations.

Nayeb’s assertion that “check cashing” and “money transmission” were accessory

uses in a C-2 Zoning District ignores this Court’s determination in Baird. Nayeb

provided no evidence that he was being subjected to disparate treatment. Nayeb both

lacks standing to (a) assert that any provision of the CZO is unconstitutional; and (b)

based on his acceptance of benefits under the ordinance is estopped and has waived

any rights to contest the CZO’s constitutionality. Therefore, the Trial Court’s

determination that the CZO was unconstitutionally vague generally or as applied to

Nayeb fails to follow the established rules of statutory construction, fails to apply

required constitutional presumptions, ignores the prior determinations of this Court,

disregards both the arguments of estoppel and waiver, and avoids the standing issue.

PRAYER

WHEREFORE, PREMISES CONSIDERED, the State of Texas prays that this

Court reverse the Trial Court’s finding that the City of Melissa, Texas’

28
Comprehensive Zoning Ordinance No. 92-08 is unconstitutionally vague; direct the

Trial Court to vacate its March 12, 2014 Order; reverse the dismissals of the charging

instruments; remand this case to the Trial Court for reinstatement of the information

and trial of the various offenses; and for such other and further relief to which the

State of Texas may be entitled.

Respectfully submitted,

/s/ Larry R. Boyd
LARRY R. BOYD
State Bar No. 02775000
lboyd@abernathy-law.com
ABERNATHY ROEDER BOYD &
HULLETT, P.C.
1700 Redbud Blvd., Suite 300
McKinney, Texas 75069
Telephone: (214) 544-4000
Telecopier: (214) 544-4040

SPECIAL PROSECUTOR FOR THE
STATE OF TEXAS

29
 CERTIFICATE OF COMPLIANCE

I certify that this petition was prepared with WordPerfect Version X5, and that,
according to that program’s word count function, the sections covered by TRAP
9.4(i)(1) contain 6,330 words.

/s/ Larry R. Boyd
Larry R. Boyd

30
 CERTIFICATE OF SERVICE

I certify that I served a copy of the Appellant’s Brief on the following parties
or their counsel via electronic mail or by hand delivery on the 20th day of May, 2015.

Thomas H. Keen
Law Offices of Thomas H. Keen, PLLC
555 Republic Drive, Suite 325
Plano, Texas 75074
tom@keenlawfirm.com

/s/ Larry R. Boyd
Larry R. Boyd

31
APPENDIX

32
NO. 05-15-00279-CR, NO. 05-15-00280-CR, NO. 05-15-00281-CR,
NO. 05-15-00282-CR, NO. 05-15-00283-CR, NO. 05-15-00284-CR,
NO. 05-15-00285-CR, NO. 05-15-00286-CR, NO. 05-15-00287-CR,
NO. 05-15-00288-CR, NO. 05-15-00289-CR, NO. 05-15-00290-CR,
NO. 05-15-00291-CR, NO. 05-15-00292-CR, NO. 05-15-00293-CR,
NO. 05-15-00294-CR, NO. 05-15-00295-CR, NO. 05-15-00296-CR,
NO. 05-15-00297-CR, NO. 05-15-00298-CR, NO. 05-15-00299-CR,
NO. 05-15-00300-CR, NO. 05-15-00301-CR, NO. 05-15-00302-CR,
NO. 05-15-00303-CR, NO. 05-15-00304-CR, NO. 05-15-00305-CR,
NO. 05-15-00306-CR, NO. 05-15-00307-CR, NO. 05-15-00308-CR,
NO. 05-15-00309-CR, NO. 05-15-00310-CR, NO. 05-15-00311-CR,
NO. 05-15-00312-CR, NO. 05-15-00313-CR, NO. 05-15-00314-CR,
NO. 05-15-00315-CR, NO. 05-15-00316-CR, NO. 05-15-00317-CR,
NO. 05-15-00318-CR, NO. 05-15-00319-CR, NO. 05-15-00320-CR,
NO. 05-15-00321-CR, NO. 05-15-00322-CR, NO. 05-15-00323-CR,
NO. 05-15-00324-CR, NO. 05-15-00325-CR, NO. 05-15-00326-CR,
NO. 05-15-00327-CR, NO. 05-15-00328-CR, NO. 05-15-00329-CR,
NO. 05-15-00330-CR, NO. 05-15-00331-CR

IN THE COURT OF APPEALS
FOR THE FIFTH JUDICIAL DISTRICT
OF TEXAS AT DALLAS

STATE OF TEXAS,

Appellant,

vs.

FARHAD NAYEB,

Appellee.

APPENDIX TO THE APPELLANT’S BRIEF

33
1. Order dated March 12, 2014 of County Court at Law No. 2.

2. Order dated February 19, 2015 of County Court at Law No. 2

3. City of Melissa, Texas Comprehensive Zoning Ordinance, Ordinance
No. 92-08, as amended.

34
TAB 1

35
 Cause No. 002-82535-2013, 002-82536-2013, 002-
82537-2013,002-82538-2013,002-82539-2013,002-82540-2013,002-82541-
2013, 002-82545-2013, 002-82546-2013, 002-82551-2013, 002-82553-2013, 002-
82554-2013, 002-82555-2013, 002-82557-2013, 002-82560..,2013, 002-82563-
2013, 002-82564-2013, 002-82565-2013, 002-84704-2013, 002-84810-2013, 002-
84811~2013,002-84812-2013,002-84813-2013,002-84814-2013,002-84815-
2013, 002-84816-2013, 002-84823-2013, 002-84824..,2013, 002-84825-2013, 002-
84826-2013,002-84827-2013,002-84828-2013,002-84829-2013,002-84830-
2013,002-84831-2013,002-84832-2013,002-84833-2013,002-84834-2013,002-
84835-2013,002-84836-2013,002-84837-2013,002-84838-2013,002-84839-
2013, 002-84840-2013, 002-84841-2013, 002-84842-2013, 002-84843-2013, 002-
84844-2013,002-84845-2013,002-84846-2013,002-84847-2013,002-84848-
2013, 002-84849-2013 and 002-84850-201

STATE OF TEXAS § IN THE COUNTY COURT
§
v. § AT LAW N0.2
§
FARHADNAYEB § COLLIN COUNTY, TEXAS

ORDER

On this day came to be heard the State's Notice of Void Judgment and

Motion to Reconsider. The defendant appeared through counsel of record Thomas

Keen and the State appeared through Assistant Criminal District Attorney John

Rolater. After hearing the argument of the parties and considering the evidence and

argument previously heard in hearings in this matter, the Court enters the following

orders:

The Judgment of Acquittal previously entered by the Court on February 20,

2014, is void and is hereby set aside.

Order 1
 The City of Melissa Zoning Ordinance No. 92-08 is unconstitutionally vague

because it does not give fair notice to citizens accused of violating the ordinance

by cashing checks and/or transmitting money allegedly contrary to the permitted

uses of a premises covered by the ordinance.

Entered this the 12th day ofMarch, 2014.

Thomas Keen, Attorney for the Defendant

Order 2
TAB2

34
 Cause No. 002-82535-2013

STATE OF TEXAS § IN THE COUNTY COURT
§
v. § AT LAW N0.2
§
FARHAD NAYEB § COLLIN COUNTY, TEXAS

ORDER DISMISSING COMPLAINT

The Court, having previously determined that City of Melissa Zoning

Ordinance No. 92-08 is unconstitutionally vague because it does not give fair

notice to citizens accused of violating the ordinance by cashing checks and/or

transmitting money allegedly contrary to the permitted uses of a premises covered

by the ordinance, hereby orders that the Complaint be, and it is hereby,

DISMISSED. See Ex parte Lo, 424 S.W.3d 10, 27 (Tex. Crim. App. 2013).

Entered this then_ day ofFebmary, 2015.

Order Dismissing Complaint 1
TAB3

35
 CHAPTER 12- PLANNING AND ZONING
ARTICLE 12.300 ·ZONING ORDINANCE ADOPTED

ARTICLE 12.300- ZONING ORDINANCE ADOPTED £6 11
(61) Editor'snote- Ord. No. 92-0B, gg 1-3 6, adopted Aug. 25, 1992, was not specifically amendatory of the Code, and
inclusion as Article 12.300 was at the city's discretion. Formerly, the Zoning Ordinance was maintained in the office of
the City SecretaJY, as amended from time to time.

CITY OF MELISSA, TEXAS

ORDINANCE NO, 92-08

AN ORDINANCE REPLACING IN ITS ENTIRETY THE EXISTING ZONING ORDINANCE OF THE CITY OF
MELISSA, TEXAS; ESTABLISHING NEW ZONING DISTRICTS; ADOPTING A NEW ZONING MAP;
REGULATING THE SIZE AND USE OF BUILDINGS AND LOTS THAT MAY BE OCCUPIED; REQUIRING
CERTIFICATES OF OCCUPANCY FOR ALL USES; PROVIDING OFF-STREET PARKING AND LOADING
REQUIREMENTS; REGULATING ACCESSORY BUILDINGS; REGULATrNG SIGNS; PROVIDING FOR SPECIFIC
USE PERMITS; PROVIDING FOR AMENDMENTS TO THIS ZONING ORDINANCE AND CLASSIFYING NEW
AND UNLISTED USES; PROVIDING FOR NONCONFORMING LOTS AND STRUCTURES; PROVIDING FOR A
GENERAL PENALTY FOR VIOLATIONS NOT TO EXCEED TWO THOUSAND DOLLARS ($2,000.00) FOR EACH
OFFENSE; PROVIDING FORA SAVINGS CLAUSE; AND PROVIDING AN EFFECTIVE DATE.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF MELISSA, TEXAS:
SECTION 1
TITLE

That this ordinance, together with all subsequent amendments thereto, shall hereby referred to as the
"Revised Zoning Ordinance of the City of Melissa, Texas."
SECTION 2

PURPOSE
Zoning regulations and districts are herein established in accordance with a comprehensive plan for the
purpose of promoting the health, safety, morals and general welfare of the City. They are designed to lessen
congestion in the streets; to secure safety from fire, panic and other dangers; to provide adequate light and
air; to prevent the overcrowding of land, to avoid undue concentration of population; to facilitate the
adequate provision of transportation, water, sewerage, schools, parks and other public requirements. They
have been established with reasonable consideration, among other things, for the character of each district,
and its peculiar suitability for the particular uses specified; and with a view to conserving the value of
buildings and encouraging the most appropriate use of land throughout the City.

SECTION 3
EXHIBIT

Page 1 of72
Melissa, Texas, Code of Ordinances A-1.
 CHAPTER 12 - PLANNING AND ZONING
ARTICLE 12.300- ZONING ORDINANCE ADOPTED

ZONING DISTRICTS ESTABLISHED

The City of Melissa, Texas, is hereby divided into zoning districts as listed in this section.

Abbreviation General Description
A Agricultural District: This district provides for the continuance of farming, ranching, and
gardening activities on land now utilized for these purposes. When land in the "A"
category is needed for development purposes, it is anticipated the zoning will be
changed to the appropriate zoning categories to provide for orderly growth and
development in accordance with the Comprehensive Plan. Once land in this category has
been zoned into another zoning district, the intent of this ordinance is that such land
shall not be changed back to an Agriculture District category by any subsequent request
for a change.
SF-1 Single-Family Residential District 1: This district will permit a 20,000 square foot
minimum residential lot creating_ a rural and estate~e setting.
SF-2 Single-Family Residential District 2: The SF-2 category provides for a low density, single
family residential development of a relatively spacious character together with such
public and semi-public uses as may be necessary and compatible with residential
neighborhoods. The minimum residential lot in this district is 10,000 ~uare feet.
SF-3 Single-Family Residential District 3: The SF-3 category provides for a low density single-
family and two-family residential development and permits smaller type housing. The,
minimum residential lot in this district is 6,000 square· feet.
MF Multi-Family Dwelling District: The MF district permits higher density development of
multiple-family dwellings not permitted in the more traditional single family districts.
The density in this district shall not exceed fifteen (15) units per acre.
MH Manufactured Home Park District: The MH district is intended to accommodate
manufactured home development within the city. A minimum of twenty (20) acres is
required for any manufactured home ])ark.
C-1 Restricted Commercial District: The C-1 district is intended to accommodate limited
retail, commercial, and office uses that are usually found in central business districts.
C-2 General Commercial District: The C-2 district permits retail, commercial, and office uses
which require considerable space for display, sales or open storage, or by the nature of
the use is generally not compatible with uses in the C-1 District.
I-1 Light Industrial District: The Light Industrial District is intended to accommodate light
industrial uses and those commercial uses requiring outside storage and display. The
regulations are designed to provide for a mixture commercial and light industrial or
manufacturing uses with proper standards to encourage attractive work areas for
citizens.
1-2 Heavy Industrial District: The Heavy Industrial District is intended to accommodate a
wide range of industrial uses, some of which may generate objectionable or hazardous
conditions and therefore are not compatible with other land uses. Permitted uses include
manufacturing, processing, assembling, warehousing, and distribution. This district can
also accommodate commercial uses which have outside storage and display and which
support industrial facilities.
PO Planned Development District: The Planned Development District provides a zoning
category for the planning and development of larger tracts of land or tracts of land with
unique characteristics for a single or combination of uses reguiril!g flexibility and variety

Melissa, Texas, Code of Ordinances
Page 2 of72
 CHAPTER 12- PLANNING AND ZONING
ARTICLE 12.300- ZONING ORDINANCE ADOPTED

in design to achieve orderly development with due respect to the protection of
surrounding property.
FP Flood Plain District: Zoning districts located in flood hazard areas which are subject to
periodic inundation may be preceded by the prefix FP, indicating a subdistrict. Areas
designated as a Flood Plain District may be used only for those uses listed in the
provisions of Section 19 until the area or any portion thereof located in FP subdistrict
has been approved by the City Council for development in accordance with Article 3.600
of the Melissa Code of Ordinances. Approval shall only be given after engineering studies
determine that the area or any portion thereof is suitable for uses in the district and
building construction or development would not create an obstruction to drainage nor a
hazard to life or property and that such construction is not contrary to the public
interest

SECTION 4

ZONING DISTRICT MAP

4.1 The boundaries of the zoning districts as established herein are delineated upon the zoning map of the
City of Melissa, Texas, said map being hereby adopted as a part of this ordinance as fully as if the same were
set forth herein in detail.

4.2 Two (2) original, official and identical copies of the zoning map are hereby adopted bearing the
signature of the Mayor and attestation of the City Secretary and shall be filed and maintained as follows:

(a) One copy shall be filed with the City Secretary, to be retained as the original record and shali not
be changed in any manner.

(b) One copy shall be displayed for public view in the city hall and shall be maintained up-to-date by
posting thereon all changes and subsequent amendments. This zoning map shall be referenced when
issuing building permits, certificates of occupancy and for enforcing this zoning ordinance.

(c) Reproductions for information purposes may from time to time be made of the official zoning
maps. The map may be updated as individual zoning requests are approved.

SECTION 5

ZONING DISTRICT BOUNDARIES

5.1 The district boundary lines shown on the zoning map are usually along streets, alleys, property Jines or
extensions thereof. Where uncertainty exists as to the boundaries of districts as shown on the official
zoning map, the following rules shall apply.

5.2 Boundaries· indicated as approximately following streets, highways or· alleys shall be construed to
follow the centerline of such street, highway or alley.

5.3 Boundaries indicated as approximately following platted lot lines shall be construed as following such
lines.

Melissa, Texas, Code of Ordinances
Page 3 of72
V(O
 CHAPTER 12- PLANNING AND ZONING
ARTICLE 12.300- ZONING ORDINANCE ADOPTED

5.4 Boundaries indicated as approximately following city limits shall be construed as following city limits.

5.5 Boundaries indicated as following railroad or utility lines shall be construed to be the centerline of the
right-of-way or if no centerline is established, the boundary shall be interpreted to be midway between the
right-of-way lines.

5.6 Boundaries indicated as approximately following the streams, drainageways, or other bodies of water
shall be construed to follow the centerlines of such streets, drainageway, or other body.

5.7 Boundaries indicated as parallel to or extensions of features indicated in subsections 5.1 through 5.6
above shall be so construed. Distances not specifically indicated on the original Zoning Map shall be
determined from the graphic scale on the map.

5.8 Whenever the street, alley, or other public way is vacated by official action of the City Council, or
whatever street or alley area is franchised for building purposes, the zoning district line adjoining each side
of such street, alley or other public way shall be automatically extended to the centerline of such vacated
street, alley or way, and all areas so involved shall then and henceforth be subject to all regulations of the
extended districts.

5.9 Where physical features of the ground are at variance with information shown on the official zoning
district map, or if there arises a question as to how a parcel of property is zoned and such question cannot
be resolved by the application of subsections 5-1 through 5-8, or the zoning of property is invalidated by a
final judgment of a court of competent jurisdiction, the property shall be considered as classified "A",
Agricultural District, temporarily until other zoning is.given.

SECTION 6

TEMPORARY ZONING ANNEXED TERRITORY

6.1 All territory hereafter annexed to the City of Melissa shall be temporarily classified as Agricultural
District, until permanent zoning is established by the City Council. The procedure for establishing
permanent zoning on annexed territory shall conform to the procedures established by law for the
adoption of original zoning regulations.

6.2 In an area temporarily classified as Agricultural District:

(a) No person shall use, erect, construct andjor proceed or continue with the erection or
construction of any building or structure or cause the same to be done in any newly annexed territory
to the City of Melissa without first applying for and obtaining a building permit or certificate of
occupancy from the Building Inspector or the City Council as may be required.

(b) No permit for the construction of a building or use of land shall be issued by the Building
Inspector other than a permit which will allow the construction of a building permitted in the
Agricultural District, unless and until such territory has been classified in a zoning district other than
the Agricultural District, by the City Council in the manner prescribed by law.

SECTION 7

COMPLIANCE REQUIRED

All land, buildings, structures or appurtenances thereon located within the City of Melissa, Texas, which are

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hereafter occupied, used, erected, altered, removed, placed, demolished or converted shall be occupied,
used, erected, altered, removed, placed, demolished or converted in conformance with the zoning
regulations prescribed for the zoning district in which such land or building is located as hereinafter
provided.

SECTION 8

''A" AGRICULTURAL DISTRICT

8.1 General Purpose and Description. This district is intended to apply to land situated on the fringe of an
urban area and used for agricultural purposes, which may become developed as an urban area in the
future. Generally, the land in an Agricultural District may be appropriate for development; therefore, the
agricultural activities conducted in the Agricultural District should not be detrimental to urban land uses.
The types of uses and the area and intensity of use permitted in this district are intended to encourage and
protect agricultural uses until urbanization is warranted and the appropriate change in district
classification is made.

8.2 Permitted Uses. Uses permitted in the Agricultural District include those listed in Schedule of Uses found
in Section 20 hereof and are subject to the following conditions:

(a) All general and special agricultural, farming, ranching, stables and related accessory buildings,
stock and poultry raising, dairy, and other related uses are permitted so long as they do not cause a
hazard to health by reason of unsanitary conditions, are not offensive by reason of odors, dust, fumes,
noise or vibrations to persons of ordinary sensibilities, and are not otherwise detrimental to the
public safety and welfare.

8.3 Area and Height Regulations and Minimum Dwelling Size. The requirements regulating the minimum lot
size, minimum yard sizes, maximum building height, maximum percent of lot coverage by buildings and
accessory uses, and the minimum dwelling size shall conform with the schedule found in Section 21.

8.4 Parking Regulations. Two (2) covered spaces behind the front yard line for each single family dwelling
unit shall be required. Such off-street parking shall also be in accordance with Sections 20 and 22 as may be
applicable.

SECTION 9

"SF-1" SINGLE FAMILY RESIDENTIAL DISTRICT-1

9.1 General Purpose and Description. This district is intended to provide for larger lots with associated large.
single family residential dwellings and accessoJY structures. Such districts will usually be located in
relatively remote areas, separated from heavy traffic and major thoroughfares. This district is also
appropriate in areas of environmental sensitivity andjor uneven topography and as a buffer between areas
expected to remain in agricultural use for an extended period of time and areas expected to experience
residential development.

9.2 Permitted Uses. Uses permitted in the SF-1 District include those listed in Schedule of Uses found in
Section 20 hereof and are subject to the following conditions:

(a) A private stable used for the housing of a horse or horses owned by the resident shall be set back
from adjacent property lines a minimum distance of one hundred feet (100'). Anarea of one and one-
half (1.5) acre shall be required for each animal.

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9.2 Area and Height Regulations and Minimum Dwelling Size. The requirements regulating the minimum lot
size, minimum yard sizes, maximum building height, maximum percent of lot coverage by buildings and
accessory uses, and the minimum dwelling size shall conform with the schedule found in Section 21.

9.3 Parking Regulations. Not less than two (2) covered, enclosed off-street parking spaces shall be provided
behind the front yard line for each single-family dwelling. Such off-street parking shall also be in
accordance with Sections 20 and 22 as may be applicable.

SECTION 10

"SF-2" SINGLE FAMILY RESIDENTIAL DISTRlCT-2

10.1 General Purpose and Description. This district is designed to provide for low density, traditional single
family residential development. This district is appropriate as a buffer between higher density residential
uses and agricultural andfor estate type residential areas.

10.2 Permitted Uses. Uses permitted in the SF-2 District include those listed in Schedule of Uses found in
Section ZO hereof.

10.3 Area and Height Regulations and Minimum Dwelling Size. The requirements regulating the minimum
lot size, minimum yard sizes, maximum building height, maximum percent oflot coverage by buildings and
accessory uses, and the minimum dwelling size shall conform with the schedule found in Section 21.

10.4 Parking Regulations. A minimum of two (2) covered, enclosed off-street parking spaces shall be
provided behind the front yard line for each single-family dwelling. Such off-street parking shall also be in
accordance with Sections 20 and 22 as may be applicable.

SECTION 11

"SF-3" SINGLE FAMILY RESlDENTIAL DISTRICT-3

11.1 General Purpose and Description. This district is designed to accommodate single family residential
development of somewhat higher density than found in the SF-4 District and SF-1 District. This district is
appropriate as a buffer between multi-family residential areas or some commercial areas and lower
density single family residential areas.

11.2 Permitted Uses. Uses permitted in the SF-3 District include those listed in Schedule of Uses found in
Section 20 hereof.

11.3 Area and Height Regulations and Minimum Dwelling Size. The requirements regulating the minimum
lot size, minimum yard sizes, maximum building height, maximum percent oflot coverage by buildings and
accessory uses, and the minimum dwelling size shall conform with the schedule found in Section 21.

11.4 Parking Regulations. A minimum of one (1) covered, enclosed off-street parking space and one (1)
other paved parking space shall be provided for each single-family dwelling unit located behind the front
yard line. Such off-street parking shall also be in accordance with Sections 20 and 22 as may be applicable.

. SECTION 12

"MF" MULTI-FAMILY RESIDENTIAL DISTRICT

12.1 General Purpose and Description. The Multi-Family Residential District is established to meet the needs

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for medium to high density residential development where such areas are suitable for higher impact
development and higher traffic volume. Attached residential dwellings are permitted in this district but not
more than fifteen (15) dwelling units per acre shall be allowed.

12.2 Permitted Uses. Uses permitted in the MF District include those listed in Schedule of Uses found in
Section 20 hereof.

· 12.3 Area and Height Regulations and Minimum Dwelling Size. The requirements regulating the minimum
lot size, minimum yard sizes, maximum building height, maximum percent of lot coverage by buildings and
accessory uses, and the minimum dwelling size shall conform with the schedule found in Section 21 as may
be applicable.

12.4 Parking Regulations. Two and one-half (211) off-street parking spaces shall be provided for each
dwelling unit. Required parking may not be provided within the required front yard. Such off-street
parking shall also be in accordance with Sections 20 and 22.

12.5 Refuse Facilities. Every dwelling unit shall be located within two hundred fifty (250) feet of a refuse
facility, measured along the designated pedestrian and vehicular travel way. There shall be available at all
times at least six (6) cubic yards of refuse container per thirty (30) multi-family dwelling units. For
complexes with less than thirty (30) units, no Jess than four (4) cubic yards of refuse container shall be
provided. Each refuse facility shall be screened from view on three sides from persons standing at ground
level on the site or immediately adjoining property, by an opaque fence or wall of wood or masonry not less
than six (6) feet nor more than eight (8) feet in height or by an enclosure within a building. Refuse
containers shaH be provided and maintained in a manner to satisfy public health and sanitary regulations.
Each refuse facility shall be located so as to provide safe and convenient pickup by refuse collection
agencies.

12.6 Border fencing of wood or masonry of not less than six (6) feet in height shall be installed by the
builder at the time of construction of any multi-family complex, along the property line on any perimeter
not abutting a public street or right-of-way. This fence shall be maintained throughout the existence of the
multi-family unit by the owner.

12.7 Each unit in any multi-story design, regardless of density, shall be provided with two (2) points of
entry and exit with each providing separate access to places of safety in the event of fire or other
emergency.

SECTION 13

MANUFACTURED HOME PARK DISTRICT

13.1 General Purpose and Description. This district is designed to accommodate manufactured home
development. No manufactured home shall be permitted to be located within the City of Melissa unless
located in an authorized manufactured home park. No mobile home constructed prior to June 15, 1976
shall be permitted to be located within the city limits. The minimum size of any manufactured home park
shall be twenty (20) acres.

13.2 Permitted Uses. Uses permitted in the MH District include those listed in Schedule of Uses found in
Section 20 hereof. Only one (1) manufactured home shall be permitted on each lot or space.

13.3 Area and Height Regulations qnd Minimum Dwelling Size. The requirements regulating the minimum
lot size, minimum yard sizes, maximum building height, maximum percent of lot coverage by buildings and

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accessory uses, and the minimum dwelling size shall conform with the schedule found in Section 21.

13.4 Parking Regulations. A minimum of two (2) off-street parking spaces shall be provided for each
manufactured home Jot. In addition, an addi~ional one hundred and fifty (150) square feet of parking area
shall be provided in common area for the storage of boats and visitor parking for each two manufactured
home lots. Such off-street parking shall also be in accordance with Sections 20 and 22.

13.5 Design and Construction Standards.

(a) Streets. Internal streets, signage, street lights shall be privately owned, built. and maintained
unless dedicated to and accepted by the city. Streets rights-of-way widths shall be a minimum of fifty
feet (50') and the pavement width shall be not less than thirty-one feet (31') with curb and gutter.
Dead end streets shall not be longer than six hundred feet (66') and shall have a permanent paved
turnaround of eighty feet (80'). No partial or half streets shall be permitted except with formal
approval by the City Council. All streets shall be constructed with six inch (6") reinforced concrete
pavement with integral curb and gutter which meets the approval and standards of the City Council.

(b) Driveways, Parking Areas, and Walkways. All lots shall be provided with a reinforced concrete
walkway from the manufactured home to the driveway which is at least four feet (4') in width. Each
lot shall also be provided with adequate driveway and parking area to accommodate at least two
vehicles and which shall be paved with six inch (6") reinforced concrete. The driveway shall provide
access from the street to the back of the front building line. All driveways, parking areas, and
walkways shall be constructed in accordance with the latest edition of the Standard Specifications for
Public Works Construction published be North Central Texas Council of Governments.

(c) Electrical and Telephone Service. All electrical wiring and telephone cabling in the manufactured
home park shall be underground.

(d) Water Supply. Each lot shall be supplied water by public water supply system and each lot shall
separately metered. All water lines shall conform to the city's plumbing code and water construction
standards and the State Board of Insurance and Texas Department of Health minimum standards for
water systems.

(e) Sewer, Disposal. Each lot shall be connected to a public sewer system constructed in accordance
with the city's plumbing code and sewer construction standards and the Texas Department of Health
minimum standards for sewer systems. Each manufactured home space shall be provided with a
sewer riser pipe a minimum of four inches (4") in diameter. When the lot is unoccupied or vacant, the
sewer riser pipe shall be capped off by the owner or manager of the manufactured home park

(f) Drainage. The manufactured home park shall provide for adequate drainage as provided for in
the city's subdivision standards. All drainage facilities shall be constructed in accordance with the
latest edition of the Standard Specifications for Public Works Construction published be North Central
Texas Council ofGovernments.

(g) Fire Protection. All service buildings (office, laundry facilities, shops, etc.) shall be provided with
at least one fire extinguisher.

(h) Gas Supply. Gas piping shall be installed underground in accordance with the city's plumbing
code and construction standards and the gas supplier's standards. Gas outlets shall be capped when
the lot is vacant. Natural gas shall be supplied except that liquefied petroleum gas system may be

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installed in the nearest available natural gas supply main is located more than one thousand (1,000)
feet from the park and is permitted by the City Council.

(i) Extensions and Add-Ons. No structural extension shall be attached to a manufactured home in
violation of the spacing and clearance requirements. A building permit shall be required for any
extension or add-on structure. All extensions or add-on structures must be constructed in accordance
with the city's building codes and ordinances. All extensions and add-on structures shall be
dismantled and removed when the adjoining manufactured home is removed from the Jot.

0) Solid Waste Disposal. Each lot shall subscribe to a solid waste collection service in accordance
with the city's policies and regulations.

(k) Anchoring and Skirting Requirements. Each manufactured home within the park shall be
installed and anchored in accordance with the Texas Department of Labor and Standards rules and
regulations. Also, each manufactured home within the park shall be installed with a painted metal or
wood skirting around the perimeter of the dwelling which shall be installed within thirty (30) days of
placement of the manufactured home. The failure to install this skirting shall be deemed an offense
against the city.

(I) Operational and Maintenance Requirements. All manufactured homes shall comply with the
following operational and maintenance requirements:

(1) The owner or manager of the manufactured home park shall keep an up-to-date register of
the park resid~nts, including the manufactured home registration data, the make, model, length,
width, year of manufacture, and identification number of each manufactured home.

(2) The owner or manager of the manufactured home park shall be responsible for the keeping
the manufactured home park in a clean, safe and sanitary condition, free of accumulations of
debris, trash, and high weeds and grass. The owner or manager shall also keep all streets and
sidewalks in good and safe condition. Whenever the owner or manager is notified by the city, or
other appropriate authority, that unsafe or unsanitary conditions exist, he or she shall abate the
condition or nuisance within the allotted time as provided in the notice to him or her or he or
she shall be guilty of a misdemeanor offense.

(3) The owner or manager of the manufactured home park shall be responsible for insuring
that park residents meet the applicable anchoring and skirting requirements as outlined in
paragraph (k) above. Such requirements shall be incorporated in all lease or rental agreements
and stipulate that failure to do so will result in the eviction of the resident and his property from
the park. Failure of the owner or manager to require compliance with such anchoring and
skirting requirements after due notice by the city or failure to start eviction proceedings shall be
unlawful.

SECTION 14

"C-1" RESTRICTED COMMERCIAL DISTRICT

14.1 General Purpose and Description: The C-1 District is intended for office facilities, neighborhood
shopping facilities and retail and commercial facilities of a service character. The C-1 District is established
to accommodate such uses compatible with central business district area.

14.2 Permitted Uses: Uses permitted in the C-1 District include those listed in Schedule of Uses found in

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Section 20 hereof and are subject to the following conditions:

(a) The business shall be conducted wholly within an enclosed building;

(b) · Required yards shall not be used for display, sale or storage of merchandise or for the storage of
vehicles, equipment, containers or waste material;

(c) All merchandise shall be sold at retail on the premises; and

(d) Such use shall not be objectionable because of odor, excessive light, smoke, dust, noise, vibration
or similar nuisance to a person of ordinary sensibilities.

14.3 Area and Height Regulations and Minimum Dwelling Size: The requirements regulating the minimum
lot size, minim urn yard sizes, maximum building height, maximum percent of lot coverage by buildings and
accessory uses, and the minimum dwelling size shall conform with the schedule· found in Section 21.

14.4 Parking Regulations: Off-street parking requirements shall be in accordance with the parking schedule
found in Section 20. Such off-street parking shall also be in accordance with Section 22 as may be
applicable.

SECTION 15

"C-2" GENERAL COMMERCIAL DJSTR!CT

15.1 General Purpose and Description: The C-2 District is intended to provide a zoning category similar to
the C-1 District, except that additional uses are permitted which may or may not generally be carried on
completely within a building or structure, and an expanded range of service and repair uses is permitted.

15.2 Use Regulations: Uses permitted in the C-2 District include those listed in Schedule of Uses found in
Section 20.

15.3 Area and Height Regulations and Minimum Dwelling Size: The requirements regulating the minimum
lot size, minimum yard sizes, maximum building height, maximum percent of lot coverage by buildings and
accessory uses, and the minimum dwelling size shall conform with the schedule found in Section 21.

15.4 Parking Requirements: Off-street parking requirements shall be in accordance with the parking
schedule found in Section 20. Such off-street parking shall also be in accordance with Section 22 as may be
applicable.

SECTION 16

"1-1" LJGHT INDUSTRIAL DISTRICT

16.1 General Purpose and Description: The purpose of this district is to provide for light industrial uses and
those commercial uses requiring outside storage and display. The regulations are designed to provide for a
mixture of commercial uses and light industrial or manufacturing uses with proper standards to encourage
attractive working areas for citizens.

16.2 Use Regulations: Uses permitted in the 1-1 District include those listed in Schedule of Uses found in
Section 20 hereof and are subject to the following conditions:

(a) All business, servicing, or processing, except for off-street parking, off-street loading, display of

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merchandise for sale to the public, and establishments of the ndrive-in" type, shall be conducted
within completely enclosed areas.

(b) All storage within one hundred feet (100') of a residence district, except for motor vehicles in
operable condition, shall be within completely enclosed buildings or effectively screened with
screening not less than six feet (6 ') nor more than eight feet (8') in height, provided no storage located
within fifty feet (50') of such screening shall exceed the maximum height of such screening.

(c) Permitted uses in the 1-1 District shall not disseminate dust, fumes, gas, noxious odor, smoke,
glare, or other atmospheric influence.

(d) Permitted uses in the I -1 District shall produce no noise exceeding in intensity, at the boundary
of the property, the average intensity of noise of street traffic.

(e) Permitted uses in the l-1 District shall not create fire h.azards on surrounding property.

16.3 Area and Height Regulations and Minimum Dwelling Size: The requirements regulating the minimum
lot size, minimum yard sizes, maximum building height, maximum percent oflot coverage by buildings and
accessory uses, and the minimum dwelling size shall conform with the schedule found in Section 21.

16.4 Parking Regulations: The minimum off-street parking requirements for manufacturing and industrial
uses shall be one (1) parking space for each two (2) employees or one (1) space for each one thousand
(1,000) square feet of gross floor area, whichever is greater. Such off-street parking shall also be in
accordance with Sections 20 and 22 as may be applicable.

SECTION 17

"1-2" HEAVY INDUSTRIAL DISTRICT

17.1 General Purpose and Description: The I-2 District provides for a wide range of industrial activities,
some of which may generate objectionable or hazardous conditions and therefore are not compatible with
other land uses. Permitted uses include manufacturing, processing, assembling, warehousing, and
distribution. This district can also accommodates some commercial uses which have outside storage and
displays.

17.2 Use Regulations: Uses permitted in the I-2 District include those listed in Schedule of Uses found in
Section 20 hereof and are subject to the following conditions:

(a) All business, servicing, or processing, except for off-street parking, off-street loading, display or
merchandise for sale to the public, and establishments of the "drive-in" type, shall be conducted
within completely enclosed buildings unless otherwise indicated.

(b) All storage within one hundred feet (100') of a residential district, except for motor vehicles in
operable condition, shall be within completely enclosed buildings or effectively, screened with
screening not less than six feet (6') nor more than eight feet (8') in height, provided no storage located
within fifty feet (SO') of such screening shaH exceed the maximum height of such screening.

(c) Such facilities for the manufacturing, fabrication, processing or assembly of products, provided
that such facilities are not detrimental to the public health, safety or general welfare, and further
provided that the following performance standards and city ordinances are met:

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(1) Smoke: No operation shall be conducted unless it conforms to the standards established by
any applicable state and federal health rules and regulations pertaining to smoke emission;

(2) Particulate Matter: No operation shall be conducted unless it conforms to the standards
established by applicable state and federal health rules and regulations pertaining to emission of
particulate matter;

(3) Dust_ Odor, Gas, Fumes, Glare, or Vibration: No emission of these matters shall result in a
concentration at or beyond the property line which is detrimental to the public health, safety or
general welfare or which causes injury or damage to property; said emissions shall in all cases
conform to the standards established by applicable state and federal health rules and regulations
pertaining to said emissions;

(4) Radiation Hazards and Electrical Disturbances: No operation shall be conducted unless it
conforms to the standards established by applicable state and federal health rules and
regulations pertaining to radiation control;

(5) Noise: No operation shall be conducted in a manner so that any noise produced is
objectionable due to intermittence, beat frequency or shrillness. Sound levels of noise at the
property line shall not exceed 75 DB(A) permitted for a maximum of fifteen (15) minutes in any
one (1) hour; said operation shall in all cases conform to the standards established by applicable
state and federal health rules and regulations and to other city ordinances pertaining to noise;
and

(6) Water Pollution: No water pollution shall be emitted by the manufacturing or other
processing. In a case in which potential hazards exist, it shall be necessary to install safeguards
acceptable to the appropriate state and national health and environmental protection agencies
prior to issuance of a certificate of occupancy. The applicant shall have the burden of
establishing that said safeguards are acceptable to said agency or agencies.

(d) Other manufacturing and industrial uses which do not meet the general definition for
manufacturing processes may be permitted by the City Council after public hearing and review of the
particular operational characteristics of each such use and other pertinent data affecting the
community's general welfare. Approval of uses under this subsection shall be made in accordance
with Section 28.

17.3 Area and Height Regulations and Minimum Dwelling Size: The requirements regulating the minimum
lot size, minimum yard sizes, maximum building height, maximum percent oflot coverage by buildings and
accessory uses, and the minimum dwelling size shall conform with the schedule found in Section 21.

17.4 Parking Regulations: The minimum off-street parking requirements for manufacturing and industrial
uses shall be one (1) parking space for each two (2) employees or one (1) space for each one thousand
(1,000) square feet of gross floor area, whichever is greater. Such off-street parking shall also be in
accordance with Sections 20 and 22 as may be applicable.

SECTION 18

"PD" PLANNED DEVELOPMENT DISTRICT

18.1 General Purpose and Description: The Planned Development District "PD" prefix is intended to provide
for combining and mixing of uses allowed in various districts with appropriate regulations and to permit

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flexibility in the use and design of land and buildings in situations where modification of specific provisions
of this ordinance is not contrary to its intent and purpose or significantly inconsistent with the planning on
which it is based and will not be harmful to the community. A "PD" District may be used to permit new and
innovative concepts in land utilization.

While great flexibility is given to provide special restrictions which will allow development not otherwise
permitted, procedures are established herein to insure against misuse of the increased flexibility.

18.2 Permitted Uses: Any use specified in the ordinance granting a Planned Development district shall be
permitted in that district. The size, location, appearance and method of operation may be specified to the
extent necessary to insure compliance with the purpose of this ordinance.

18.3 Development Standards:

(a) Development standards for each separate PD District shall be set forth in the ordinance granting
the PD District and may include but shall not be limited to: uses, density, lot area, lot width, lot depth,
yard depths and widths, building height, building elevations, coverage, floor area ratio, parking,
access, screening, landscaping, accessory buildings, signs, lighting, management associations, and
other requirements as the City Council and Planning and Zoning Commission may deem appropriate.

(b) In the PD District, the particular district(s) to which uses specified in the PD are most similar
shall be stated in the granting ordinance. All PD applications shall list all requested variances from the
standard requirements set forth throughout this ordinance (applications without this list will be
considered incomplete).

(c) The ordinance granting a PD District shall include a statement as to the purpose and intent of the
PD granted wherein. A specific list is required of variances in each district or districts and a general
statement for citing the reason for the PD request.

(d) The PD District shall conform to all other sections of the ordinance unless specifically exempted
in the granting ordinance.

(e) The minimum acreage for a PD District shall be three (3) acres.

18.4 In establishing a PD District in accordance with this section, the City Council shall approve and file as
part of the amending ordinance appropriate plans and standards for each PD District. During the review
and public hearing process, the Planning and Zoning Commission and City Council shall require a
conceptual plan and a development plan (or detailed site plan).

(a) Conceptual Plan: This plan shall be submitted by the applicant The plan shall show the
applicant's intent for the use of the land within the proposed planned development district in a
graphic manner and shall be supported by written documentation of proposals and standards for
development

(1) A conceptual plan for residential land use shall show general use, thoroughfares and
preliminary lotting arrangements. For residential development which does not propose platted
lots, the conceptual plan shall set forth the size, type and location of buildings and building sites,
access, density, building height, fire lanes, screening, parking areas, landscaped areas and other
pertinent development data.

(2) A conceptual plan for uses other than residential uses shall set forth the land use proposals

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in a manner to adequately illustrate the type and nature of the proposed development. Data
which may be submitted by the applicant, or required by the Planning and Zoning Commission
or City Council, may include but is not limited to the types ofuse(s), topography and boundary of
PD area, physical features of the site, existing streets, alleys and easements, location of future
public facilities, building height and location, parking ratios and other information to adequately
describe the proposed development and to provide data for approval which is to be used in
drafting the final development plan.

(3) Changes of detail which do not alter the basic relationship of the proposed development to
adjacent property and which do not alter the uses permitted or increase the density, building
height or coverage of the site and which do not decrease the off-street parking ratio, reduce the
yards provided at the boundary of the site, or significantly alter the landscape plans as indicated
on the approved conceptual plan may be authorized by the Building Inspector or his or her
designated representative. If an agreement cannot be reached regarding whether or not a detail
site plan conforms to the original concept plan the Planning and Zoning Commission shall review
the request and render judgment as to the conformity.

(b) Development Plan or Detailed Site Plan: This plan shall set forth the final plans for development
of the PD District and shall conform to the data presented and approved on the conceptual plan.
Approval of the development plan shall be the basis for issuance of a building permit. For any district
SF-1, SF-2, and SF-3 District, a final plat shall qualify as the development plan. The development plan
may be submitted for the total area of the PD or for any section or part as approved on the conceptual
plan. The development plan must be approved by the Planning and Zoning Commission and City
Council. A public hearing on approval of the development plan shall be required at the Council and
Commission level, unless such a hearing is waived pursuant to paragraph (c) hereinafter at the time of
conceptual plan approval in the original amending ordinance. The development plan shall include:

(1) A site inventory analysis including a scale drawing showing existing vegetation, natural
water courses, creeks or bodies of water and an analysis of planned changes in such natural
features as a result of the development. This should include a delineation of ahy flood prone
areas.

(2) A scale drawing showing any proposed public or private streets and alleys; building sites or
lots; and areas reserved as parks, parkways, playgrounds, utility easements, school sites, street
widening and street changes; the points of ingress and egress from existing streets; general
location and description of existing and proposed utility services, including size of water and
sewer mains; the location and width for all curb cuts and the land area of all abutting sites and
the zoning classification thereof on an accurate survey of the tract with the topographical
contour interval of not more than five (5) feet.

(3) A site plan for proposed building complexes showing the location of separate buildings, and
between buildings and property lines, street lines and alley lines. Also to be included on the site
plan is a plan showing the arrangement and provision of off-street parking.

(4) A landscape plan showing screening walls, ornamental planting, wooded areas and trees to
be planted.

(5) An architectural plan showing elevations and signage style to be used throughout the
development in all districts except single-family and duplex may be required by the Planning
and Zoning Commission or City Council if deemed appropriate. Any or all of the required

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information may be incorporated on a single drawing if such drawing is clear and can be
evaluated by the Building Inspector or his designated representative.

(c) All development plans may have supplemental data describing standards, schedules or other
data pertinent to the development of the PD District which is to be included in the text of the
amending ordinance. The procedure for establishing a PD District shall follow the procedure for
zoning amendments as set forth in Section 33. This procedure is expanded as follows for approval of
conceptual and development plans.

(l) Separate public hearings shall be held by the Planning and Zoning Commission and City
Council for the approval of the conceptual plan and the development plan or any section of the
development plan, unless such requirement is waived by the City Council upon a determination
that a single public hearing is adequate. A single public hearing is adequate when:

(i) The applicant submits adequate data with the request for the PD District to fulfill the
requirements for both plans; or

(ii) Information on the concept plan is sufficient to determine the appropriate use of the
land and the detail site plan will not deviate substantially from it; and

(iii) The requirement is waived at the time the amending ordinance is approved. If the
requirement is waived the conditions shall be specifically stated in the amending
ordinance.

(2) The ordinance establishing the PD District shall not be approved until the conceptual plan
is approved.

(i) The development plan may be approved in sections. When the plan is approved in
sections, the separate approvals by the Planning and Zoning Commission and City Council
for the initial and subsequent sections will be required.

(ii) An initial development plan shall be submitted for approval within six (6) months
from the approval of the conceptual plan or some portion of the conceptual plan. lf the
development plan is not submitted within six (6) months, the conceptual plan is subject to
reapproval by the Planning and Zoning Commission and City Council. If the entire project is
not completed within two (2) years, the Planning and Zoning Commission and the City
Council may review the original conceptual plan to ensure its continued validity.

(iii) Regardless of whether the public hearing is waived for the development plan,
approval by the Planning and Zoning Commission and City Council is still required.

18.5 When a PD District is being considered, a written report may be requested of the applicant discussing
the impact on planning, engineering, water utilities, electric, sanitation, building inspection, tax, police, fire
and traffic. Written comments from the applicable public school district, and from private utilities may be
submitted to the Planning and Zoning Commission prior to the Commission making any recommendations
to the City Council.

18.6 All P~ Districts approved in accordance with the provisions of this ordinance in its original form, or by
subsequent amendment thereto, shall be referenced on the zoning district map, and a list of such PD
Districts, together with the category of uses permitted therein, shall be maintained in the office of the City
Secretary.

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18.7 Planned Development Ordinances Continued: Prior to adoption of this ordinance, if the City Council has
established various PD Districts, they are to be continued in full force and effect. The establishing
ordinances or parts of ordinances approved prior to this ordinance shall be carried forth in full force and
effect and are the conditions, restrictions, regulations and requirements which apply to the respective PD
Districts shown on the zoning map at the date of adoption of this ordinance.

SECTION 19

"FP" FLOOD PLAIN DISTRICT

19.1 General Purpose and Description; To provide for the appropriate use of land which has a history of
inundation or is determined to be subject to flood hazard, and to promote the general welfare and provide
protection from flooding portions of certain districts are designated with a flood plain prefix, FP. Areas
designated on the zoning district map by an FP prefix shall be subject to the following provisions:

19.2 Permitted Uses; The permitted uses in that portion of any district having a flood plain (FP) prefix shall
be limited to the following:

(a) Agricultural activities including the ordinary cultivation or grazing of land and legal types of
animal husbandry but excluding construction of barns or other outbuildings.

{b) Off-street parking incidental to any adjacent main use permitted in the district

(c) Electrical substation.

(d) All types oflocal utilities including those requiring specific use permits.

(e) Parks, community centers, playgrounds, public golf courses (no structures), and other
recreational areas.

(f) Private open space as part of a planned residential development

(g) Structures, installations and facilities installed, operated and maintained by public agencies for
flood control purposes.

(h) Bridle trail, bicycle or nature trail.

19.3 No building or structure shall be erected in that portion of any district designated with a flood plain
(FP) prefix until and unless such building or structure has been approved by the City Council after
engineering studies have been made, and it is ascertained that such building or structure is not subject to
damage by flooding and yvould not constitute an encroachment, hazard, or obstacle to the movement of
flood waters and that such construction would not endanger the value and safety of other property or the
public health and welfare.

SECTION 19A

H/0 HISTORIC OVERLAY DISTRICT

A Historic Overlay District may be established in accordance with this Section 19A.

19A-1 Purpose of the HO District. The purpose of the Historic Overlay District is to protect, enhance, and
perpetuate the districts and landmarks of historical and cultural importance to promote the economk,

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cultural, educational. and general welfare of the public. Within the city, several areas and structures
represent the unique confluence of time and place that shaped the identify of generations of citizens and
produced significant historic, architectural, and cultural resources that constitute their heritage.

The designation of a Historic Overlay District is intended to:

•Protect and enhance the district and landmarks that represent distinctive elements of Melissa's
historic, architectural, and cultural heritage

• Foster civic pride in the accomplishments of the past

•Protect and enhance Melissa's attractiveness to visitors and the support and stimulus thereby
provided to the economy

•Ensure the harmonious, orderly, and efficient growth and development of the city

•Promote economic prosperity and welfare of the community by encouraging the most appropriate
use of such property within the city

(Ord. No. 98-07, adopted 7-14-98, Sec.1)

19A-2 Use Regulations. A building or premise shall be used only for the following purposes:

(1) Any use permitted in the underlying zoning classification district.

(2) Wood or similar siding for use up to 100% of exterior construction when authorized by a
specific use permit under Section 26.

(Ord. No. 98-07, adopted 7-14-98, Sec. 1)

19A-3 Specific Use Permit Conditions. In granting specific use permits, the City Council shall take into
consideration the historic character of the overlay district as follows:

(1) In authorizing wood or similar siding up to 100% of exterior construction instead of masonry
construction, the City Council shall make such approval conditioned upon color selection,
architectural style and signage which are compatible with surrounding properties and which are
characteristic of the City of Melissa in the late nineteenth century or first half of the twentieth century.

(Ord. No. 98-07, adopted 7-14-98, Sec.l)

19A-4 Standards of Construction. Wood or clapboard siding shall consist of or closely resemble painted
horizontal clapboard, horizontal shiplap, vertical tongue-in-groove or vertical board and batten siding.
Materials other than wood would be required to consist of masonite, metal, or vinyl. Metal and vinyl siding
shall have a baked on enamel surface or other factory finish that requires no additional coat(s) of paint at
the time ofinstallation.

(Ord. No. 98-07, adopted 7-14-98, Sec. 1)

19A-5 District Boundaries. The properties within the Historic Overlay District boundaries shall be given the
"HO" prefix on the zoning map and shall be subject to the provisions of this section.

(Ord. No. 98-07, adopted 7-14-98, Sec. 1)

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SECTION 20

SCHEDULE OF USES AND PARKING REQUIREMENTS

20.1 Land and buildings in eqch of the following classified districts may be used for any of the following
listed uses but no land shall hereinafter be used and no building or structure shall hereinafter be occupied,
used, erected, altered, removed, placed, demolished or converted which is arranged or designed to be used
for other than those uses specified for the district in which it is located as set forth by the following
schedule of uses:

X Designates use permitted in district
Designates use prohibited in district
s Use permitted with specific approval by City

NOTE: Gross floor area is abbreviated as g.f.a.

Residential Use: A SF-1 SF-2 SF-3 MF MH C-1 C-2 1-1
Apartment X

Child Day Care X X X X X X s s
Home
Community s s s s X X
Center (private)
Condominium X

Duplex Dwelling X X

Group Day Care s s s s s s s s
Home
Group Home X X X X X X s s
Guest House or X X X X X X s s
Quarters
Halfway House s s s s s s s s
Industrialized X X X X X X s s
Housing
Manufactured X
Home
Manufactured X
Home Park
Quadraplex X
Dwelling
Rooming s s X s
.(Boarding)

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House
Single Family X X X X X X s s
Dwelling-
detached
Swimming Pool X X X X X X X X X
(private)
Temporary s s s s s s s s X
Construction
Office
Tennis Court X X X X X X X X X
(private)
Townhouse X

Triplex Dwelling X

Agriculture/Ran A SF-1 SF-2 SF-3 MF MH C-1 C-2 I-1
ch Uses:
Animal Feed Lot s
Dairy X
Farm X s
Greenhouse X s s s s s s s
Orchard X s
Ranch X s
Rodeo Ground, s s s
Arena
Stable, Private X s
Stable, Public X

Utility Uses: A SF-1 SF-2 SF-3 MF MH C-1 C-2 I-1
Electric X s s s s s s s X
Substations
Gas Line (6" or s s s s s s s X X
larger)
Gas s s s s s s s X X
Regulating( Gate
Station

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Microwave X s s s s s s X X
Tower
Radio and X s s s s s s X X
Television I

Tower
Railroad Freight X
Terminal
Railroad Yard X
Recycling s X
Facility
Refuse Transfer s s
Station
Sewer Lift X s s s s s s s X
Station
Telephone X s s s X X X X X
Exchange
Wastewater s s s s
Treatment Plant
Water Pump X s s s s s X X X
Station
Water Storage X s s s s s X X X
Tank
Water X 5 s s s s X X X
Treatment Plant

Gov't& A SF·l SF-2 SF-3 MF MH C-1 C-2 l-1
Institutional
Uses:
Athletic Field or s s s s s s X X X
Stadium
Church or X X X X X X X X X
Rectory
College or s s s $ s s X X X
University
Community/Rec X X X X X X X X
reation Center
Convalescent X X
Center
Fire Station X s s s s s X X X
Hospital X X
Library X X X X X X X X X
Museum or Art X X X
Gallery

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Park or X X X X X X X X X
Pl_licata
Mesquite Prosopis pubescens

11. Other significantly-sized, unprotected trees will be considered for tree credits. These trees must
be located outside of the floodplain, be over twelve (12) inches caliper in size and be individually field
inspected by a designated representative of Melissa.

12. New and Unlisted Unprotected Trees. [tis recognized that other unprotected native and non-
native trees, not commonly found in this area, will be discovered on land to be developed or
redeveloped in Melissa. In order to provide for such changes and contingencies, a determination as to
the appropriate classification of any new or unlisted unprotected tree shall be made as follows:

(a} The City Council, until the Director of Community Development is in place, shall refer the
question of any new or unlisted unprotected tree to the Planning and Zoning Commission
requesting an interpretation as to the classification into which such tree should be placed. The
referral of the interpretation question shall be accompanied by a statement of facts listing the
overall characteristics of the tree to include whether it is a native tree, ability to resist drought,
ability to resist disease, ability to resist destruction by pests common in this area, ability to resist
freezing weather, expected life, unprotected features such as thorns or discharge of nuisance by-
products and overall aesthetics.

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(b) The Planning and Zoning Commission shall consider the combination of characteristics of
the tree as compared with the characteristics of the trees currently listed as "unprotected" and
determine whether the tree should be added to the list

(c) The Planning and Zoning Commission shall transmit its findings and recommendations to
the City Council as to the classification of the tree as "unprotected" or "protected". The City
Council shall, by resolution, approve or disapprove of the recommendation(s).

13. Guidelines for Tree Protection. Developers shall adhere to the following tree protection
guidelines on all construction sites as applicable:

(a) Prior to construction or development, the developer shall clearly mark all trees to be
preserved.

(b) The developer shall erect a temporary fence around each tree or group of trees to prohibit
the placement of debris, parking of vehicles or fill within the normal mature drip line of any tree.

(c) During the construction stage of development, the developer shall prohibit cleaning of
equipment or materials under the canopy of any tree or group of trees to remain. In addition, the
developer shall not allow the disposal of any waste material such as, among other things, paint,
oil, solvents, asphalt, concrete, mortar, etc. under the canopy of any tree or groups of trees to
remain.

(d) No attachments or wires of any kind, other than those of a protective nature, may be
attached to any tree.

(e) Major changes of grade one (1) inch or greater will require additional measures to
maintain proper oxygen and water exchange with the roots. With major grade changes, a
retaining wall or tree well of rock or brick must be constructed around the tree no closer than
one-half (!1) the distance between the trunk and the normal mature drip line. The top of the
retaining wall must be constructed at the new grade. Grade changes one (1) inch or greater may
be made with Melissa staff approval.

(f) If a patio, sidewalk, drive or parking lot must be placed within the normal mature drip line
of an existing tree, material such as porous (turf) pavement that will allow the passage of water
and oxygen must be used.

(g) Fence row trees that exist primarily in nearly a straight line along older or existing
property lines that generally, but not always, run parallel to a fence. Fence row trees six (6)
inches caliper or greater in residential developments shall be preserved by providing a fifteen-
foot protected area centered seven and one-half (7fl") feet on each side of the centerline, on and
parallel to the fence row trees. No utility, trench (including irrigation trenches), alley paving or
permanent structure shall be allowed within the area. Removal of trees six (6) inches caliper or
larger is allowed where an alley has back-to-hack residential lots and access is needed to one
side of the area. These trees shall be identified and removal of such will not require replacement.
All trees saved twelve (12) inches caliper and larger shall be considered for tree credit purposes.
Fences that are installed within this area, which do not interfere with the existing trees, may be
allowed. Fences proposed to be located in the area shall have the design and layout submitted to
Melissa for review and approval.

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14. The first floor of parking garages is the only area that should be used to determine landscaping
requirements as established herein.

15. No tree six (6) inches caliper or larger shall be cut down without obtaining a Tree Removal
Permit as required herein.

G. Tree Removal Permits.
1. Trees three (3) inches caliper or greater shall not be removed without issuance of a Tree
Removal Permit The City Administrator, or his/her designee, must approve the removal thereof. A
no-fee permit may, in Melissa's sole discretion, be issued when a tree(s):

(a) Is/are injured, dying. diseased or infested with harmful insects;

(b) ls/are in danger of falling, interfere with utility service or create unsafe vision clearance;

(c) In any manner, create(s) a hazardous or dangerous condition, as solely determined by
Melissa, so as to endanger the public health, welfare or safety; or

(d) Is/are located on real property having an Agriculture-Open Space zoned district
classification or has/have an agriculture exemption for taxation purposes.

2. Under no circumstances shall the clear-cutting of trees on any real property within Melissa be
allowed prior to the issuance of a Tree Removal Permit for said property. Any tree removed will be
subject to the guidelines and requirements of this Ordinance.

3. Application for Tree Removal Permit. Tree Removal Permits for the removal of trees shall be
obtained by making application to Melissa, on a form provided by Melissa, and shall be subject to the
following procedures:

(a) Review of Application for Tree Removal Permit. Upon receipt of a proper application for a
Tree Removal Permit, accompanied by an administrative fee of twenty-five dollars ($25.00) per
permit application (unless exempt from the fee), the City Administrator, or hisjher designee,
shall review the application and may conduct field inspections of the development and/or refer
the permit application to other departments for review and recommendation(s), as deemed
necessary and appropriate solely by the City Administrator, or his/her designee.

(b} The application for a Tree Removal Permit, if required, shall be considered an integral part
of the application for development plan approval, and no development plan for any development
subject to the terms and provisions of this paragraph G shall be approved without said Tree
Removal Permit.

4. Once a Tree Removal Permit has been issued, the trees indicated to be cut down shall be
completely removed from the site within ninety (90) days, including a1l portions of the tree(s) down
to and including the trunk to below the ·finished or proposed finished grade on the site. All
replacement trees, transplanted trees or escrow funds sufficient to comply with the requirements of
this Ordinance shall be in place prior to the issuance of a "Certificate of Occupancy" or acceptance of
any public improvements on the subject property by Melissa.

H. Penalties for Unauthorized Removal of Trees. If any tree is removed from any real property, including
injury to a tree resulting from the owner's failure to follow required tree protection guidelines, that results

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in or may reasonably be expected to result in the death ·of the subject tree(s). the property owner shall be
determined to be in violation ofthis Ordinance.

J. Replacement of Trees. In the event it is necessary to remove a tree six (6) inches caliper or larger, the
developer, builder or property owner shall be required to replace the tree to be removed with comparable
. or better spacious trees somewhere within the planned development or subdivision (See paragraphs
(F)(S)-(11) for tree preservation credits). The City Council (until the Community Development
Department is in place) may allow the trees to be located to other areas in Melissa if it is deemed necessary
solely by Melissa staff, and space is available. Otherwise, the developer, builder or owner shall be required
to escrow funds sufficient to meet the requirements of this Ordinance.

1. A sufficient number of trees shall be planted to equal, in caliper, the caliper of the tree removed.
Said replacement trees shall be a minimum of three (3) inches caliper when planted.

2. Trees planted to satisfy landscape requirements that are indicated herein, and successfully
transplanted trees, shall count toward the tree replacement requirements, inch for inch. Transplanted
trees must successfully survive one (1) full year after planting to count as a preserved tree.

3. Protected trees six (6) inches caliper or larger located in the Restricted Commercial District (C-
1) will be replaced at the following rate:

(a) Trees twenty-four (24) inches caliper or greater-One hundred (100) percent replacement
required.

(b) Trees less than twenty-four (24) inches caliper-Fifty (50) percent replacement required.

4. Credits may be applied as stated in paragraphs (F)(S)-(11) above.

J. Recommended Trees For New Plantings. The following 'is a list of recommended high quality, long-
living trees which are considered suitable for local soil conditions and climate. Other species may be
acceptable with approval from the City Council (until the Community Development Department is
established). Required trees shall be a minimum of three (3) inches caliper immediately after planting.

1. Overs tory (Shade) Trees: Height Range 30-60 Feet

American Elm Ulmus americana
Bald Cypress Taxodium disticum
Bur Oak Quercus macrocarpa
Cedar Elm Ulmus crassifolia
Chinese Pistacke Pistacia chinesis
Chinquapin Oak Quercus muehlenber_gii
Eastern Red Cedar Juniperus vir_giniana
Green Ash Fraxinus pennsylvanica "Marshall Seedless"
Green Ash Cultivare Fraxinus pennsylvania ssp.
Lacebark [Drake) Elm Ulmus parvifolia "Drake"
Live Oak Quercus virginiana
Pecan Carya illinoinensis
Pistachio Pistaola chinesis

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CHAPTER 12 -PLANNING AND ZONING
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Red Oak Quercus shumardii
Shumard or Texas Red Oak Quercusshurnardiortexana
Sweet Gum I Liquidambar s_tyraciflua
Western Soapberry Sapindus drurnmondii

2. The following ornamental trees, with Melissa staff approval, may be substituted for the required
shade trees. These ornamental trees shall have a minimum caliper of three (3) inches.

Accent (Ornamental) Trees: Height Range 10-20 Feet

Afghan fEldarica) Pine Pinus eldarica
Chaste Tree Vitex Agnus-castus
Crabapple Malus augustufolia
Crape Myrtle Lagerstroemia indica
Deciduous Holly II ex decidua
Desert Willow Chilopsis Unearis
Flowering Pear Pyrus calleryana "Bradford", "Capital", "Aristocrat"
Japenese Black Pine Pinus thunbergii
Mexican Buckeye Ungnadia speciosa
Mexican Plum Prunus mexicana
Purple Plum Prunus cerasifera
Redbud Cercis canadensis
Texas Sophora Sophora affinis
Wax Myrtle Myrica cerifera
Yaupon Holly Ilex vomitaria

K. Installation Practices (for areas to be dedicated to Melissa).
1. Grading. All areas receiving new turf or sod shall be fine graded, eliminating all rocks and debris
larger th~m one (1) inch in diameter. If necessary, use additional fertile soil for top dressing to
promote healthy growth and positive drainage.

2. Bed Preparation. All beds shall be prepped with at least four (4) inches of amended or new soil.
The beds must be crowned or sloped to create positive drainage. The beds shall be topped with two
(2) inches of weed free mulch.

3. Turf Requirements. All turf areas must be established prior to Melissa's acceptance. The turf
must have ninety (90) percent coverage and be weed free.

4. All site preparation, landscape and irrigation plans for areas to be turned over andjor dedicated
to Melissa must be approved by the City Council, until the Parks and Recreation Department is in
place. ·

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5. All trees must be back filled with the native soil, and a mild fertilizer must be added to the
backfill. The soil must be free of rocks and debris. All trees must be staked outside of the rootball.

6. Warranty. All required trees and plant materials shall be guaranteed for one (1) year. Sod and
turf must be maintained by the developer, builder or owner, whichever is applicable, for at least one
(1) year prior to Melissa's acceptance.

(Ord. No. 97-12, adopted 12-9-97, Sec. 1; Ord. No. 05-18, adopted 2-22-05, Sec. 2)

SECTION 28

CLASSIFICATION OF NEW AND UNLISTED USES

28.1 It is recognized that new types ofland use will develop and forms of land use not anticipated may seek
to locate in the city. In order to provide for such changes and contingencies, a determination as to the
appropriate classification of any new or unlisted form of land use shall be made as follows:

(a) The Building Inspector shall refer the question concerning any new or unlisted use to the
Planning and Zoning Commission requesting an interpretation as to the zoning classification into
which such use should be placed. The referral of the use interpretation question shall be accompanied
by a statement of facts listing the nature of the use and whether it involves dwelling activity, sales,
processing, type of product, storage and amount, and nature thereof, enclosed or open storage,
anticipated employment transportation requirements, the amount of noise, odor, fumes, dust, toxic
material and vibration likely to be generated and the general requirements for public utilities such as
water and sanitary sewer.

(b) The Planning and Zoning Commission shall consider the nature and described performance of
the proposed use and its compatibility with the uses permitted in the various districts, and determine
the zoning district or districts within which such use should be permitted.

(c) The Planning and Zoning Commission shall transmit its findings and recommendations to the
City Council as to the classification proposed for any new or unlisted use. The City Council shall by
resolution approve the recommendation of the Planning and Zoning Commission or make such
determination concerning the classification of such use as is determined appropriate based upon its
findings.

(d) Standards for new and unlisted uses may be interpreted as those of a similar use. When
determination of the minimum requirements cannot be readily ascertained, the same process
outlined in paragraphs (a}, (b), and (c) above shall be followed.

SECTION 29

CREATION OF BUILDING SITE

29.1 No permit for the construction of a building or buildings upon any tract or plot shall be issued until a
building site, building tract, or building lot has been created by compliance with one of the following
conditions:

(a) The lot or tract if part of a plat of record, properly approved by the City Council, and filed in the
Plat Records of Collin County, Texas.

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(b) The plot, tract or lot faces upon a dedicated street and was separately owned prior to the
effective date of this ordinance or prior to annexation to the city, whichever is applicable, in which
event a building permit for only one main building conforming to all the requirements of this
ordinance may be issued on each such original separately owned parcel without first complying with
paragraph (a) preceding.

(c) The plot or tract is all or part of a site plan officially approved by the City Council and compliance
has been made with provisions and improvements approved on such site plan for all utility and
drainage easements, dedication of streets, alleys and other public improvements required to meet the
standards established for the platting of land. Any and all plots, tract or lots must be provided access
via a public street or drive.

SECTION 30

NONCONFORMING USES AND STRUCTURES

30.1 A nonconforming status shall ~xistwhen:

(a) a use or structure which does not conform to the regulations prescribed in the district in which
such use or structure is located was in existence and lawfully operating prior to the adoption of the
previous zoning ordinance and has been operating since without discontinuance; or

(b) on the effective date of this ordinance, the use or structure was (1) in existence and lawfully
constructed, located and operating in accordance with the provisions of the previous zoning
ordinance or (2) was a nonconforming use thereunder and does not now conform to the regulations
herein prescribed for the district in which the use or structure is located.

30.2 No nonconforming use or structure may be expanded or increased beyond the lot or tract upon which
such nonconforming use is located as of the effective date of this ordinance except to provide off~street
loading or off-street parking space upon approval of the Zoning Board of Adjustment.

30.3 Repairs and normal maintenance may be made to a nonconforming building provided that no
structural alterations or extensions shall be made except those required by law or ordinance, unless the
building is changed to a conforming use.

30.4 Any nonconforming use may be changed to a conforming use and once such change is made, the use
shall not thereafter be changed back to a nonconforming use.

30.5 Where a conforming use is located in a nonconforming structure, the use may be changed to another
conforming use by securing a certificate of occupancy from the Building Inspector.

30.6 Whenever a nonconforming use is abandoned or discontinued, all nonconforming rights shall cease
and the use of the premises shall thenceforth be in conformity with this ordinance. Discontinuance of a use
or business or the vacancy of a building or premises occupied by a nonconforming use for a period of
twelve (12) months shall be construed as conclusive proof of intent to abandon the nonconforming use.
Also, should the owner or user intend to discontinue any nonconforming use, such nonconforming rights
shall cease immediately.

30.7 If a nonconforming structure or a structure occupied by a nonconforming use is destroyed by fire, act
of God or other cause, it may be rebuilt but the size and function of the nonconforming use shall not be
expanded without a variance.

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30.8 Amortization of Nonconforming Uses/Structures.

A. Determination of Need for Expedited Compliance. Any person who resides or owns real property in
Melissa may request that the City Council establish a compliance date for a nonconforming use andjor
structure. Upon receiving such a request, the City Council shall determine whether there is a public
necessity for expedited compliance with the zoning regulations. The following factors must be considered
by the City Council in determining the public necessity for expedited compliance:

1. The character of the surrounding neighborhood.

2. The degree of incompatibility of the use and/or structure to the zoning district in which it is
located.

3. The effect of the nonconforming use and/or structure on the surrounding area and the effect of
its cessation on that area.

If the City Council finds there is not a public necessity for expedited compliance with the zoning
regulations, the City Council shall request Planning & Zoning to initiate a public hearing in
accordance with the Comprehensive Zoning Ordinance to determine the proper zoning of the
property on which the use andjor structure is located.

B. Determination of Amortization Period.

1. The City Council shall, in accordance with the law, provide a compliance date for the
nonconforming use andjor structure under a plan whereby the owner's actual investment in the
structure(s), fixed equipment and other assets (excluding inventory and other assets that may be
feasibly transferred to another site) on the property before the time that the use and/or structure
became nonconforming can be amortized within a definite time period if:

a. The City Council finds that there is a public necessity for expedited compliance with the
zoning regulations;

b. The City Council decides not to initiate a public hearing to rezone the property; or

c. The final zoning decision of Planning and Zoning or the City Council does not render the
use and/or structure conforming.

2. The following factors must be considered by the City Council in determining a reasonable
amortization period:

a. The owner's capital investment in structures, fixed equipment. and other assets (excluding
inventory and other assets that may be feasibly transferred to another site) on the property
before the time the use and/or structure became nonconforming.

b. Any costs that are directly attributable to the owner and the establishment of compliance
date, including demolition expenses, relocation expenses, termination ofleases, and discharge of
mortgages.

c. Any return on capital investment since inception of the use and/or use of the structure,
including net income and depreciation.

'
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d. The anticipated actual recovery of capital investment, including net income and
depreciation.

3. If the owner did not have an investment in the use andjor structure before it became a
nonconforming use and/or structure, the owner is not entitled to an amortization to recover any of
the costs set forth in paragraph 30.8.B.2.

C. Compliance Requirement If the City Council establishes a compliance date for a nonconforming use
andjor structure, the use and/or structure must cease operations on or before that date, and it may not
operate and/or be occupied imdjor used thereafter unless it becomes a conforming use and/or structure.

D. For purposes of this Ordinance, 'owner' means the owner of the nonconforming use and/or structure
at the time of the City Council's determination of a compliance date for the nonconforming use andjor
structure.

(Ord. No. 03-20, adopted 9-9-03, Sec. 2; Ord. No. 05-16, adopted 1-25-05, Sec. 3)

SECTION 31

RULES OF CONSTRUCTION AND GENERAL DEFINITIONS

31.1 General Rules of Construction: The following rules of construction shall apply to the interpretation of
words used in this ordinance:

(1) Words used in the present tense include the future tense.

(2) Words used in the singular number include the plural number.

(3) Words in the plural number include the singular number.

(4) The words "building" and "structure" are synonymous.

(5) The words "lot", "plot" and "tract" are synonymous.

(6) The word "shall" is mandatory and not discretionary.

31.2 General Definitions: Except to the extent a particular provision specifies otherwise, the following
definitions shall apply throughout this ordinance:

(1) Accessory Building. A building subordinate to and detached from the main building and used for
purposes customarily incidental to the primary use of the premises.

(2) Accessory Use. A subordinate use which is incidental to the main or primary use.

(3) Alley. A public space or thoroughfare which affords only secondary means of access to property
abutting thereon.

(4) Apartment A room or suite of rooms in a multi-family dwelling or apartment house designed or
occupied as a place of residence by a single family, individual or group of individuals.

(5) Apartment House. Any building or portion thereof, which is designed, built, rented, leased or let
to be occupied as a home or place of residence by three or more families living in independent

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dwelling units.

(6) Appliance Repair. A shop for the repair of household and home equipment, such as electrical
appliances, lawn mowers, tools and similar items where all such items are stored within a building. '

(7) Area of the Lot The area shall be the net area of the lot or site and shall not include portions of
streets and alleys.

(8) Athletic Field or Stadium. An athletic field or stadium owned and operated by a public agency for
the general public including a baseball field, football field or stadium which may be lighted for
nighttime play.

(9) Basement. A building story which is partly underground, but having at least one-half of its height
above the average level of the adjoining ground. A basement shall not be counted as a story in
computing building height.

(9A) Beer/Wine Sales. Retail sales to consumers for off-premise consumption only of beer, wine
andjor vinous liquor, but not liquor, in accordance with any and all state and/or local laws, rules and
regulations. "Beer", "wine", "vinous liquor" and "liquor" shall have such meanings as set forth in the
Texas Alcoholic Beverage Code, as it exists or may be amended.

(10) Block. An area enclosed by streets and occupied by or intended for buildings; where this word is
used as a term of measurement, it shall mean the distance along a side of a street between the nearest
two streets which intersect said street on said side.

(11) Board ofAdjustment. The Zoning Board of Adjustment of the City of Melissa, Texas.

(12) Boarding (or Rooming) House. A building, other than a hotel or multiple family dwelling, where
lodging is provided for five (5) or more persons for compensation, and where facilities for food
preparation are not provided in individual rooms.

(13) Building. Any structure built for the-support, shelter and enclosure of persons, animals, chattels
or movable property of any kind. When subdivided in a manner sufficient to prevent the spread of
fire, each portion so subdivided may be deemed a separate building.

(14) Building Ends. Those sides of a building having the least dimension as compared to the front or
rear of a building. As used in the building spacing regulations for multiple-family dwelling, the term
"building end" shall mean the most narrow side of a building regardless of whether it fronts upon a
street, faces the rear of the lot or adjoins the side lot line or another building.

(15) Building Height The vertical distance of a building measured from the average established grade
at the street line on from the average natural front yard ground level, whichever is higher, to (1) the
highest point of the roofs surface if a flat surface, (2) to the deck line of mansard roofs or (3) to the
mean height level between eaves and edge for hip and gable roofs and, in any event, excluding
chimneys, cooling towers, elevator bulkheads, penthouses, tanks, water towers, radio towers,
ornamental cupolas, domes or spires, and parapet walls not exceeding ten (10) feet If the street grade
has not been officially established, the average front yard grade shall be used for a base level.

(16) Building Inspector. The official or person charged with the enforcement of the zoning and
building codes of the City.

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(17) Building Line. A line parallel or approximately parallel to the street line at a specified distance
therefrom constituting the minimum distance from the street line that a building may be erected.

(18) Building Material Sales. The sale of new building materials and supplies indoors with related
sales for hardware, carpet, plants, electrical and plumbing supplies ail of which is oriented to the retail
customer, rather than contractor or wholesale customer.

(19) Cellar. A building story with more than one-half its height below the average level of the
adjoining ground. A cellar shall not be counted as a story in computing building height.

(20) Certificate of Occupancy. An official certificate issued by the City of Melissa through the enforcing
official indicating conformance with or approved conditional waiver from the zoning regulations and
authorizing legal use of the premises for which it is issued.

(21) Child Care Center or Facility. A facility that provides care or supervision for children who are not
related by blood, marriage, or adoption to the owner or operator of the facility for less than 24 hours a
day for more than twelve (12) children under the age of fourteen (14), whether or not the facility is
operated for profit or charges for the services it offers.
I

(22) Child Day Care Home. A facility, sometimes referred to as a "Registered Family Home" that
regularly provides care in the caretaker's own residence for not more than six (6) children under the
age of fourteen (14) years of age, excluding the caretaker's own children. When more than six (6)
children are kept in the home, it shall be considered as either a "Group Day Care Home" or "Child Care
Center.'' ·

(23) Clinic. A group of offices for one or more physicians, surgeons, optometdsts, or dentists to treat,
examine or consult with patients who do not remain overnight.

(24) Church or Rectory. A place of assembly and worship by a recognized religion including without
limitation synagogues, temples, churches, instruction rooms and the place of residence for ministers,
priests, rabbis, teachers and directors on the premises.

(25) City Council. The governing body of the City of Melissa, Texas.

(26) College or University. An academic institution of higher learning, accredited or recognized by the
State and covering a program or series of programs of academic study.

(27) Community Center (Private). A building or group of rooms designed and used as an integral part
of a residential project by the tenants of such a project for a place of meeting, recreation or social
activity and under the management and unified control of the operators of the project A private
community center shall not be operated as a place of public meetings or as a business nor shall the
operation of such facility create noise, odor or similar conditions perceptible beyond the bounding
property line of the project site.

(28) Community Center {Public). A building or group of rooms owned operated by a governmental
body or non-profit association (Y.M.C.A., Y.W.C.A, etc.) for social and/or recreational purposes.

(29) Condominium. See "Townhouse."

(3 0) Convalescent Center. A place of residence used for or customarily occupied by persons
recovering from illness where nursing care is provided.

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(31) Country Club (Private). An area of twenty (20) acres or more containing a golf course and a
clubhouse and available only to private specific membership; such a club may contain adjunct
facilities such as private dub, dining room, swimming pool, tennis courts and similar recreational or
service facilities.

(32) Court or Courtyard. An open, unoccupied space, bounded on more than two sides by the walls of
a building. An inner court is a court entirely surrounded by the exterior walls of a building. An outer
court is a court having one side open to a street, alley, yard or other permanent space.

{33) District A section of the city for which the regulations governing the area, height, or use of the
land and buildings are uniform.

(34) Duplex. A detached building having separate accommodations for and occupied by not more than
two families.

(35) Dwelling Unit A building or portion of a building which is arranged, occupied, or intended to be
occupied as living quarters and includes facilities for food preparation and sleeping.

(36) Family. Any number of individuals living together as a single housekeeping unit, in which not
more than three (3) individuals are unrelated by blood, marriage or adoption.

(37) Farm. An area of five (5) acres or more which is used for growing of usual farm products
(vegetables, grain, etc.) and for the raising thereon of the usual farm poultry and farm animals such as
horses, cattle and sheep and including the necessary accessory uses for raising, treating and storing
products raised on the premises, not including the commercial feeding of offal or garbage to swine or
other animals and not including any type of agriculture or husbandry specifically prohibited by
ordinance or law.

(38) Floor Area. The total square feet of floor space within the outside dimensions of a building
including each floor level, but excluding cellars, carports, garages or porches.

(39) Group Day Care Home. A facility that regularly provides care in the caretaker's own residence for
seven (7) to twelve (12) children under the age of fourteen (14) years, excluding the caretaker's own
children.

(40) Group Home. A residential facility licensed by the Texas Department of Human Resources to
house up to six (6) handicapped andfor mentally retarded persons and t:Wo (2) supervisors.

(41) Guest House (detached). A secondary structure on a lot or tract containing dwelling
accommodations excluding kitchen facilities and separate utility services or meters and intended for
the tern porary occupancy by guests and not for rent or permanent occupancy.

(42) Halfway House. A residential facility providing shelter, supervision and residential rehabilitative
services fot persons who have been inmates of any county, state or federal correctional institutipn
and released and require a group setting to facilitate the transition to a functional members of society.

(43) Home Occupation. A home occupation is an occupation customarily carried on in an existing
structure of the property by not more than two (2) employees, one of whom must be the owner of the
business being conducted at the location. A person who engages in a home occupation shall not use an
advertising sign larger than two and one-half (2.5) square feet in size, said sign to be non-illuminated
and attached to the structure in which the business is conducted. A person who engages in a home

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occupation shaH not display or store materials and/or equipment for sale or use outside of the
structure in which the business is conducted. A person who engages in a home occupation may
conduct outdoor activities other than storage of materials and for equipment provided the activities
are screened from adjacent properties and public easements and rights-of-way by a solid fence of at
least six (6) feet in height, shall not involve the use of motorized equipment, and shall not generate
loud and raucous noise that renders the enjoyment of life and property uncomfortable or interferes
with public peace and comfort. The storage of firewood for public sale and the temporary outdoor
display or holiday-related merchandise, such as Christmas trees, are specifically exempted from the
outdoor storage, display, and fencing regulations of this ordinance. Temporary outdoor display of
holiday-related merchandise shall be limited to a total thirty (30) day display period for any
particular merchandise item(s ).

(44) Hospital. A facility which mainly provides general inpatient medial care an treatment of sick and
injured persons by the use of medical, diagnostic, and major surgical facilities and which is accredited
by the State ofTexas.

(45) Industrial Housing. A residential structure that is designed for the use and occupancy of one or
more families, that is constructed in one or more modules or constructed using one or more modular
components built at a location other than the permanent residential site, and that is designed to be
used as a permanent residential structure when the modules or modular components are transported
to the permanent residential site and are erected or installed on a permanent foundation system. The
term includes the plumbing, heating, air conditioning, and electrical systems associated with the
structure. The term does not include any residential structure that is in excess of two stories or thirty-
five feet (35') in height as measured from the finished grade elevation at the building entrance to the
peak of the roof. The term shall not mean nor apply to (i) housing constructed of sectional or
panelized systems not utilizing modular components, or (ii) any ready-built home which is
constructed so that the entire living area is contained in a single unit or section at a temporary
location for the purpose of selling it and moving it to another location.

( 46) Kennel. An establishment where the sale, boarding, raising, breeding, and/or training of animals
is conducted for commercial purposes. This definition is not to preclude the raising of a single litter of
animals per year by any resident.

(47) Kindergarten or Nursery School. An establishment where more than three (3) children are
housed for care or training during the day or portion thereof.
(48) Light Fabrication. The fabrication, assembly or manufacture of products, including but not
limited to jewelry, trimming decorations, and similar items, which does not involve generation of
noise, odor, vibration, dust or hazard.

(48A) Liquor Sales. Retail sales to consumers for off-premise consumption only of liquor, and may
or may not also include retail sales to consumers for off·premise consumption only of beer, wine
andjor vinous liquor, in accordance with any and all state andjor local laws, rules and regulations.
"Beer", "wine", "vinous liquor" and "liquor" shall have such meanings as set forth in the Texas
Alcoholic Beverage Code, as it exists or may be amended.

(49) Living Unit The room or rooms occupied by a family and which includes cooking facilities.

(50) Lot An area of land with fixed boundaries, used or intended to be used by one building and its
accessory buildings and not divided by any street or alley.

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(51) Lot Coverage. The percentage of the total area of a lot occupied by the roof or base (ground floor)
of buildings located on the lot or the area, whichever is greater. Roof eaves, up to the extent of two (2)
feet, shall be excluded when determining lot coverage.

(52) Lot Depth. The mean horizontal distance between the front and rear lot lines.

(53) Lot Lines. The lines bounding a Iotas defined herein.

(a) Front Lot Line. That lot line adjacent to the street right-of-way which separates the lot from
the street. In the case of a corner lot, only one lot line shall be designated as the front lot line.

(b) Rear Lot Line. That lot line opposite the front lot line of said lot not intersecting with the
front lot line.
(c) Side Lot Line: Any lot line which intersects a front lot line of said lot.

(54) Lot of Record. A lot which is part of a subdivision, a plat of which has been recorded in the office
of the County Clerk of Collin County; or a parcel of land, the deed for which is recorded in the office of
the County Clerk of Collin County prior to the adoption of this ordinance.

(55) Lot or Building Site. Land occupied or to be occupied by a building and its accessory building, and
including such open spaces as are required under this ordinance, and having its principal frontage
upon a public street or officially approved place.

(56) Lot Width. The width of a lot at the front building line.

(57) Main Building. The building or buildings on a lot which are occupied by the primary use.

(58) Manufactured Home. A structure that was constructed on or after June 15, 1976, transportable in
one or more sections, which, in the traveling mode, is eight body feet (8') or more in width or forty
body feet (40') or more in length, or, when erected on site, is 320 or more square feet, and which is
built on a permanent chassis and designed to be used as a dwelling with or without a permanent
foundation when connected to the required utilities. The term does not include recreational vehicles.

(59) Manufactured Home Park. A parcel of land which is owned by an individual, a firm, trust,
partnership or corporation which has been zoned, developed and intended to be used for the rental of
individual lots to tenants with manufactured homes.

(60) Mobile Home. A structure that was constructed before June 15, 1986, transportable jn one or
more sections, which, in the traveling mode, is eight body feet (8') or more in width or forty body feet
(40') or more in length, or, when erected on site, is 320 or more square feet, and which is built on a
permanent chassis and designed to be used as a dwelling with or without a permanent foundation
when connected to the required utilities. The term does not include recreational vehicles.

(61) Motel or Hotel. A building or group of buildings designed for and occupied as a temporary
abiding place of individuals and providing customary hotel services such as linen, maid service,
telephone and upkeep of furniture.

(62) Multiple-Family Dwelling. Any building or portion thereof which is designed; built, rented, leased
or let to be occupied as three or more dwelling units or apartments or which is occupied as a home or
place of residence by three or more families living in independent dwelling units and which is not

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located on individually platted lots.

(63) Nonconforming Use. A building. structure or use of land lawfully occupied at the time of the
effective date of this ordinance or amendments thereto and which does not conform to the use
regulations of the district in which it is situated.

(64) Nursing Home. A place of residence and care for persons suffering from infirmities of age where
care is provided on a prolonged or permanent basis.

( 65) Occ~pancy. The use or intended use of the land or buildings by proprietors or tenants.

(66) Off-Street Parking. Parking spaces located on the lot or tract occupied by the main use and which
is not located on any street or highway.

(67) Open Space. Area included in any side, rear or front yard or any unoccupied space on the lot that
is open and unobstructed to the sky except for the ordinary projections of cornices, eaves, porches
and plant material.

( 68) Orchard. An area of land at least five (5) acres or more in size which is used for growing of fruit
and nut trees and including the necessary accessory uses for growing, treating and storing the fruit
and nut products raised on the premises.

(69) Park or Playground. An open recreation facility or park owned and operated by a public agency
such as the City of Melissa or the School Board and available to the general public for neighborhood
use but not involving lighted athletic fields for nighttime play.

(70) Planning and Zoning Commission. The agency appointed by the City Council as an advisory body
authorized to provide recommendations to the council on matters relating to planning and zoning
decisions to be considered by the council.

(71) Plant Nursery. Retail or wholesale sales of plant materials and supplies either enclosed in a
building, lath house, or in the open and with related storage of equipment for landscape contracting.

(72) Private Club. A club room or suite of rooms or a building available to restricted membership for
dining, entertainment or other common object or purpose and where alcoholic beverages are sold or
provided to its members. All such private dubs shall be licensed and permitted by the Texas Alcoholic
Beverage Commission.

(73) Private Garage. An accessory building housing vehicles owned and used by occupants of the
main building; if occupied by vehicles of others, it is a storage space.

(7 4) Ranch. An area of five (5) acres or more which is used for the raising thereon of livestock such as
horses, cattle and sheep not including the commercial feeding of offal or garbage to swine or other
animals and not including any type of agriculture or husbandry specifically prohibited by ordinance
or law.

(75) Radio, Television or Microwave Towers. Structures supporting antenna and satellite dishes for
transmitting or receiving electromagnetic waves for audio and visual purposes, but excluding non-
commercial antenna installations for home use of radio or television.

(7 6) Residence. Same as dwelling; when used with district, an area of residential regulations.

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(77) Restaurant or Cafeteria. An establishment serving food to the general public in specific,
designated dining areas within the immediate confines of the building and shall not include drive-in
establishments where food is eaten in automobiles.

(78) Restaurant [Drive-In Service). An establishment designed and constructed to serve food for
consumption on the premises in an automobile and which establishment may or may not have on-
premises dining room.

(79) Rooming House. A building, other than a hotel or apartment, where lodging is provided for five
(5) or more persons for compensation, and where facilities for food preparation are not provided in
individual rooms.

(80) School, Business. A business organized to operate for a profit and offering instruction and
training in a service or art such as secretarial school, barber college, beauty school or commercial art
school, but not including manual trade schools.

(81) School, Private. An academic institution other than a public or parochial elementary or secondary
school, including private elementary and secondary schools and institutions of higher learning.

(B2) School, Public or Parochial. A school and customary accessory uses under the sponsorship of a
public or religious denomination having a curriculum generally equivalent to public, elementary or
secondary schools, but not including private, trade or commercial schools.

(83) School, Trade. A business operating for profit and offering instruction and training in a trade
such as welding, brick laying, machinery operation and other similar manual trades.

(84) Seat As used in determining parking requirements for this ordinance, a seat shall mean such
sitting space as needed or which is designed to be used for one person to sit down and occupy.

(85) Second Hand Store. An establishment offering for sale used merchandise, with the storage and
display of such items wholly contained inside a building or structure.

(86) Service Station. A building and its immediate area where pumps, car wash bays, and other
equipment are used primarily for the retail sale of gasoline, lubricants and automobile accessories,
and conducting minor automobile maintenance.

(87) Sign. An outdoor advertising device that is a structure or that is attached to or painted on a
building or that is leaned against a structure for display on premises. (See subsection 25.2 for specific
definitions of types of signs.)

(88) Single Family Dwelling [attached). A building located on a platted lot or separate building site
which is designed for and occupied by not more than one (1) family and which is attached by one or
more common wall(s) to another single family dwelling unit.

(89) Single Family Dwelling (detached). A detached building located on a platted lot or separate
building site which is designed for and occupied by not more than one (1) family.

(90) Stable, Commercial. A structure and its surrounding area of land used for the quartering horses
which are boarded or rented to the public for compensation, but not including a private stable, sale
barn, auction or similar trading activity.

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(91) Stable, Private. An accessory building set back from adjacent property lines a minimum distance
of one hundred (100) feet and used for quartering horses, not to exceed one (1) horse per one and
one half (1.5) acre area of a farm or lot.

(92) Street. Any thoroughfare or public right-of-way, other than an alley, which provides vehicular
access to adjacent land.

(93) Street Right-of Way Line. A dividing tine between a lot, tract or parcel of land and a contiguous
street

(94) Story. The height between the successive floors of a building of from the top floor to the roof. The
standard height for a story is eleven (11) feet, six (6) inches.

(95) Structural Alterations. Any change in the supporting member of a building, such as a bearing
wall, column, beams or girders.

(96) Structure. Same as Building.

(97) Swimming Pool (public). A swimming pool with accessory faciHties, not part of the municipal or
public recreational system and not a private swim club, but where the facilities are available to the
general public for a fee.

(98) Swimming Pool (private). A swimming pool constructed for the exclusive use of the residents of a
single family or multi-family dwelling and located within the required side or rear yards.

(99) Telephone Exchange. A switching or transmitting station owned by a public utility but not
including business office facilities, storage or repair shops or yards.

{98) Temporary Field or Construction Office. Temporary office buildings and temporary building
material storage areas to be used solely for construction purposes in connection with the property on
which they are erected may be permitted for a specified period of time in accordance with a permit
issued by the Building Inspector.

(98.1) Temporary Building. An industrialized or modular building or structure without a
permanent foundation. Membrane structures shalJ not be considered a temporary building. See
Section 26 ("SUP" Specific Use Permit) of this Ordinance for specific regulations relating to temporary
buildings.

(99) Tennis Court, Private. 1 A surface designed and constructed for playing the game of tennis along
with all fencing, nets and related appurtenances but excluding lighting for night play in residential
areas except as may be otherwise provided or restricted by the specific use permit

(100) Thoroughfare. Same as Street.
(101) Variance. An adjustment in the application of the specific regulations of this zoning
ordinance to a particular parcel of property which, because of special conditions or circumstances
peculiar to the particular parcel, is necessary to prevent the property from being deprived of rights
and privileges enjoyed by other parcels in the same vicinity and zoning district.

(102) Wrecking or Auto Salvage Yard. A yard or building where automobiles or parts of
automobiles or machinery are stored, dismantled and/or offered for sale in the open as whole units,

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as salvaged parts or as processed metal.

(103) Yard. An open space, other than a court, on the lot in which a building is situated and which
is not obstructed from a point forty (40) inches above the general ground level of the graded lot to the
sky, except as provided for roof overhang and similar special architectural features and plant
material.

(104) Yard, Front. An open, unoccupied space on a lot facing a street extending across the front of
a Jot between the side lot lines and from the main building to the front lot line (or street right-of-way
line) with the minimum horizontal distance between the front lot line (or street right-of-way line) and
the main building line as specified for the district in which it is located.

(105) Yard, Rear. An open, unoccupied space extending across the rear of a lot from one side lot
line to the other side Jot line and having a depth between the building, except for accessory buildings
and outbuildings as herein permitted, and the rear lot line as specified in the district in which the lot
is situated.

(106) Yard, Side. An open, unoccupied space or spaces on one side or two sides of a main building
and on the same lot with the building, situated between the building and a side line of the lot and
extending through from the front yard to the rear yard. Any Jot line not the rear line or front line shall
be deemed a side line.

(107) Zoning Map. The official certified map upon which the boundaries of the various zoning
districts are drawn and which is an integral part of this zoning ordinance.

(Ord. No. 22-26, adopted 10-9-01, Sec. 3; Ord. No. 05-16, adopted 1-25-05, Sec. 4; Ord. No. 06-41. adopted
9-26-06, Sec. 4)

SECTION 32

CERTIFICATES OF OCCUPANCY

32.1 Certificate of Occupancy Required: No permanent structure constructed, remodeled, enlarged, or
otherwise located within the city limits may be occupied prior to issuance of a certificate of occupancy by
the Building Inspector. No change in the existing conforming use of a permanent structure or of land to a
use of a different classification under this ordinance, and no change in the legally conforming use of a
permanent structure or of land may take place prior to issuance of a certificate of occupancy by the
Building Inspector.

32.2 Procedure for Vacant Land or a Change in Use: Written application for a certificate of occupancy for the
use of vacant land, or for a change in the use ofland or a building, or for a change in a nonconforming use,
as herein provided, shall be made to said Building Inspector. If the proposed use is in conformity with the
provisions of this ordinance, the certificate of occupancy therefor shall be issued within ten (10) days after
the application for same has been made.

32.3 Contents of Certificate of Occupancy: Every certificate of occupancy shall state that the building or the
proposed use of a building or land complies with all provisions of the building and zoning laws and
ordinances of the city. A record of all certificates of occupancy shall be kept on file in the office of the
Building Inspector or his or her agent and copies shall be furnished on request to any person having
proprietary or tenancy interest in the building or land affected.

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 CHAPTER 12- PLANNING AND ZONING
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32.4 Temporary Certificate: Pending the issuance of a regular certificate, a temporary certificate of
occupancy may be issued by the Building Inspector for a period not exceeding six (6) months during the
completion of alterations or during partial occupancy of a building pending its completion. Issuance of a
temporary certificate shall not be construed to alter the respective rights, duties, or obligations of the
owner or of the City relating to the use occupancy of the premises or any other matter covered by this
zoning ordinance.

32.5 Application and Issuance ofCertijicatesfor Nonconforming Uses: A certificate of occupancy shall also be
required for all lawful nonconforming uses of land or buildings created by adoption of this zoning
ordinance. It shall be the responsibility of the owner or lessee of building or land occupied by such
nonconforming use to file an application with the Building Inspector for such certificate of occupancy. Upon
receipt of the application by the Building Inspector, each owner or lessee shall be required to file an
affidavit stating that such land or building was occupied by the nonconforming use and was in lawful use or
lawfully existed as of the date of the adoption of this zoning ordinance. If the Building Inspector finds that
such use did in fact lawfully exist at the time of adoption of this zoning ordinance, the Building Inspector
shaH then issue a certificate of occupancy for such lawful nonconforming use. Failure to apply for such
certificate of occupancy for a nonconforming use within one (1) year from the date of adoption of this
ordinance shall be evidence that said nonconforming use was either illegal or did not lawfully exist at the
adoption date of this ordinance, unless the owner or lessee can otherwise prove the nonconforming use did
exist at the time of adoption of this ordinance. Proof of verification can include utility records, tax records,
affidavits from neighbors, etc.

SECTION 33

ZONING CHANGES AND AMENDMENTS

33.1 Declaration of Policy; The City declares the enactment of these regulations governing the use and
development ofland, buildings, and structures to be a measure necessary to the orderly development of the
community. Therefore, no change shall be made in these regulations or in the boundaries of the zoning
districts except:

(a) To correct any error in the regulations or map.

(b) To recognize changed or changing conditions or circumstances in a particular locality.

(c) To recognize changes in technology, style of living, or manner of doing business.

(d) As an official amendment of the zoning ordinance.

33.2 Authority to Amend Ordinance: The City Council may from time to time, after receiving a final report
thereon by the Planning and Zoning Commission and after public hearings required by law, amend,
supplement, or change the regulations herein provided or the classification or boundaries of the zoning
districts. Any amendment, supplement, or change to the text of the zoning ordinance and any change in the
classification or boundaries of the zoning districts may be ordered for consideration by the City Council,
may be initiated by the Planning and Zoning Commission, or may be requested by the owner of affected
real property or the authorized representative of an owner of affected real property.

33.3 Public Hearing and Notice: Prior to making a report to the City Council, the Planning and Zoning
Commission shall hold at least one public hearing on each application. Written notice of all public hearings
on proposed changes in district classification or boundaries shall be sent to all owners of property, or to the

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 CHAPTER 12 -PLANNING AND ZONING
ARTICLE 12.300- ZONING ORDINANCE ADOPTED

person rendering the same for city taxes, located within the area of application and within two hundred
(200) feet of any property affected thereby, within not less than ten (10) days before such hearing is held.
Such notice may be served by using the last known address as listed on the city tax roll and depositing the
notice, postage paid, in the United States mail. Notice of hearings on proposed changes in the text of the
Zoning Ordinance and on proposed changes in district classification or boundaries shall be published at
least once not less than fifteen (15) days prior thereto in the official newspaper of the City.

33.4 Commission Consideration and Report: The Planning and Zoning Commission, after the public hearing
is closed, shall prepare its report and recommendations on the proposed change stating its findings, its
evaluation of the request and of the relationship of the request to the Comprehensive Plan. The Planning
and Zoning Commission may defer its report for not more than ninety (90) days until it has had
opportunity to consider other proposed changes which may have a direct bearing thereon. In making its
determination, the Planning and Zoning Commission shall consider the following factors:

(a) Whether the uses permitted by the proposed change will be appropriate in the immediate area
concerned and their relationship to the general area and the City as a whole.

(b) Whether the proposed change is in accord with any existing or proposed plans for providing
public schools, streets, water supply, sanitary sewers and other utilities to the area and shall note the
findings.

(c) The amount of vacant land currently classified for similar development in the vicinity and
elsewhere in the City, and any special circumstances which may make a substantial part of such
vacant land unsuitable for development.

(d) The recent rate at which land is being developed in the same zoning classification as the request,
particularly in the vicinity of the proposed change.

(e) The manner in which other areas designated for similar development will be, or are likely to be,
affected if the proposed amendment is approved, and whether such designation for other areas
should also be modified.

(f) Any other factors which will substantially affect the public health, safety, morals or general
welfare. ·

33.5 Council Consideration:

(a) Proposal Recommended for Approval: Every proposal which is recommended favorably by the
Planning and Zoning Commission shall be forwarded to the Council for a public hearing thereon. No
ordinance change shall become effective until after the adoption of the ordinance and its publication
as required by law.

(b) Proposal Recommended for Denial: When the Planning and Zoning Commission determines that
a proposal should be denied, it shall so report and recommend to the City Council and notify the
applicant. When a proposed zoning request is heard by the City Council that has been denied by the
Planning and Zoning Commission, a three-fourths (