13-48 O - Amend Zoning Ordinance Related to Alcohol Regulationsr—
TOWN OF PROSPER, TEXAS ORDINANCE NO. 13 -48
L_ AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF PROSPER,
TEXAS, AMENDING SECTION 2 (DEFINITIONS) OF CHAPTER 3
(PERMITTED USES AND DEFINITIONS); AMENDING SUBSECTION 1.4
(CONDITIONAL DEVELOPMENT STANDARDS) OF SECTION 1 (USE OF
LAND AND BUILDINGS) OF CHAPTER 3 (PERMITTED USES AND
DEFINITIONS); DELETING SUBSECTION 25.4 (SPECIFIC USE PERMIT FOR
PRIVATE CLUB) OF SECTION 25 (SPECIFIC USE PERMITS) OF CHAPTER 2
(ZONING DISTRICTS); AMENDING PARAGRAPH 16 (BEER & WINE
PACKAGE SALES) AND PARAGRAPH 26 (RESTAURANT OR CAFETERIA)
OF SUBSECTION 1.4 (CONDITIONAL DEVELOPMENT STANDARDS) OF
SECTION 1 (USE OF LAND AND BUILDINGS) OF CHAPTER 3 (PERMITTED
USES AND DEFINITIONS); AMENDING SECTION 1.3(F) (RETAIL USES) OF
SECTION 1 (USE OF LAND AND BUILDINGS) OF CHAPTER 3 (PERMITTED
USES AND DEFINITIONS); AMENDING SECTION 1.3(G) (SERVICE USES)
OF SECTION 1 (USE OF LAND AND BUILDINGS) OF CHAPTER 3
(PERMITTED USES AND DEFINITIONS); AMENDING SECTION 4.5
(PARKING REQUIREMENTS BASED ON USE) OF SECTION 4 (PARKING
AND LOADING) OF CHAPTER 4 (DEVELOPMENT REQUIREMENTS) OF THE
TOWN OF PROSPER'S ZONING ORDINANCE NO. 05 -20 RELATING TO,
AMONG OTHER THINGS, CERTAIN DEFINITIONS, USES AND
REGULATIONS PERTAINING TO ALCOHOLIC BEVERAGES; PROVIDING
FOR REPEALING, SAVINGS AND SEVERABILITY CLAUSES; PROVIDING
FOR A PENALTY FOR THE VIOLATION OF THIS ORDINANCE; PROVIDING
FOR AN EFFECTIVE DATE OF THIS ORDINANCE; AND PROVIDING FOR
THE PUBLICATION OF THIS ORDINANCE.
WHEREAS, the Town Council of the Town of Prosper, Texas ( "Town Council ") has
investigated and determined that it is in the best interest of the citizens of the Town of Prosper,
Texas ( "Pros er ") to amend Section 2 (Definitions) of Chapter 3 (Permitted Uses and
Definitions); amend Subsection 1.4 (Conditional Development Standards) of Section 1 (Use of
Land and Buildings) of Chapter 3 (Permitted Uses and Definitions); delete Subsection 25.4
(Specific Use Permit for Private Club) of Section 25 (Specific Use Permits) of Chapter 2 (Zoning
Districts); amend Paragraph 16 (Beer & Wine Package Sales) and Paragraph 26 (Restaurant or
Cafeteria) of Subsection 1.4 (Conditional Development Standards) of Section 1 (Use of Land
and Buildings) of Chapter 3 (Permitted Uses and Definitions); amend Section 1.3(F) (Retail
Uses) of Section 1 (Use of Land and Buildings) of Chapter 3 (Permitted Uses and Definitions);
amend Section 1.3(G) (Service Uses) of Section 1 (Use of Land and Buildings) of Chapter 3
(Permitted Uses and Definitions); and amend Section 4.5 (Parking Requirements Based on
Use) of Section 4 (Parking and Loading) of Chapter 4 (Development Requirements) of the Town
of Prosper's Zoning Ordinance No. 05 -20 ( "Prosper Zoning Ordinance ") relating to, among other
things, certain definitions, uses and regulations pertaining to alcoholic beverages, as set forth
below.
NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF
PROSPER, TEXAS:
SECTION 1
Findings Incorporated. The findings set forth above are incorporated into the body of
this Ordinance as if fully set forth herein.
SECTION 2
Amending Section 2 (Definitions) of Chapter 3_(Permitted Uses and Definitions) of
Prosper's Zoning Ordinance. Section 2 (Definitions) of Chapter 3 (Permitted Uses and
Definitions) of Prosper's Zoning Ordinance is hereby amended to delete the definition of Beer &
Wine Package Sales, amend the definition of Private Club and add definitions for Alcoholic
Beverage, Alcoholic Beverage Establishment, Alcoholic Beverage Sales and Property Line as
follows..
"Section 2
Definitions
Alcoholic Beverage — Means alcohol, or any beverage containing more than one -half
(1/2) of one percent (1 %) of alcohol by volume, which is capable of use for beverage
purposes, either alone or when diluted, as defined by the Texas Alcoholic Beverage
Code, as amended.
Alcoholic Beverage Establishment — Any establishment that derives seventy -five
percent (75 %) or more of its gross revenues on a quarterly basis from the sale or service
of alcoholic beverages, as defined in the Texas Alcoholic Beverage Code, as amended,
for on- premise consumption.
Alcoholic Beverage Sales - Any establishment, place of business, or person engaged
in the selling of Alcoholic Beverages, as defined in the Texas Alcoholic Beverage Code,
as amended, to the general public for off - premise personal or household consumption.
• - - - -F -
WIN
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Private Club — an establishment holding a Private Club permit under Chapter 32 or 33
of the Texas Alcoholic Beverage Code, as amended, that derives thirty -five percent
(35 %) or more of its gross revenue from the sale or service of Alcoholic Beverages for
on- premise consumption and that is located within a dry area as defined in Title 6 (Local
Option Elections) of the Texas Alcoholic Beverage Code, as amended. Private Club
does not include a fraternal or veteran's organization, as defined in the Texas Alcoholic
Beverage Code, as amended, holding a Private Club permit under Chapter 32 or 33 of
the Texas Alcoholic Beverage Code. A Private Club does not include the holder of a
food and beverage certificate, as defined in the Texas Alcoholic Beverage Code, as
amended. Unless the person owning or operating the use supplies the building official
with records to prove otherwise, an establishment holding a Private Club permit under
Chapter 32 or 33 of the Texas Alcoholic Beverage Code, as amended, is presumed to
derive thirty -five percent (35 %) or more of its gross revenue from the sale or service of
Alcoholic Beverages for on- premise consumption.
Property Line — When the property line is the initial point of establishing measurement
requirements for the sale of any type of Alcoholic Beverage, "Property Line" shall mean
the nearest property line of the lot where the sale of any type of Alcoholic Beverage may
Ordinance No. 13 -48, Page 2
occur, without regard to intervening structures or objects, to the nearest property line of
the lot where the church, public hospital, public school, private school and /or residential
zoning district, as applicable, is located.
SECTION 3
Amending Subsection 1.4 (Conditional Development Standards) of Section 1 (Use
of Land and Buildinas) of Chapter 3 (Permitted Uses and Definitions) of Prosper's Zoning
Ordinance. Subsection 1.4 (Conditional Development Standards) of Section 1 (Use of Land
and Buildings) of Chapter 3 (Permitted Uses and Definitions) of Prosper's Zoning Ordinance is
hereby amended to add Paragraph 29 (Private Club) and Paragraph 30 (Alcoholic Beverage
Establishment) to read as follows:
"1.4 CONDITIONAL DEVELOPMENT STANDARDS:
29. Private Club
a) Private Clubs shall be subject to compliance with the Texas
Alcoholic Beverage Code, as amended, and any applicable local
option elections.
b) A Private Club is permitted only by specific use permit in R, C and
CC zoning districts. A Private Club is also permitted by specific
use permit as an accessory use in any zoning district only when in
conjunction with the operation of a golf course.
G) The regulations herein applicable to a public school shall also
apply to a day -care center or a child -care center as provided in
Section 109.331, Texas Alcoholic Beverage Code, as amended.
d) A Private Club shall not be located within:
1. Eight hundred (800) feet from a church, public hospital,
public school, private school, and /or residential zoning
district. For this purpose, residential zoning districts shall
include, but are not limited to, properties that are zoned
Neighborhood Service and residential Planned
Development Districts;
2. One Thousand (1000) feet from a public school if the Town
Council receives a request for this additional spacing
requirement from the school district, and the Town Council
adopts such additional spacing requirements by resolution;
or
3. One Thousand (1000) feet from a private school if the
Town Council receives a request for this additional spacing
requirement from the board of the private school, and the
Town Council adopts the additional spacing requirements
by resolution.
e) Measurement for the distance between a Private Club and the
uses listed above or the nearest residential zoning district shall be
in a direct line from the Property Line of the applicable use listed
Ordinance No. 13 -48, Page 3
above or the nearest residential zoning district to the Property Line
of the Private Club, and in a direct line across intersections.
f) There shall be no variances considered with regard to the
regulations set forth herein.
30. Alcoholic Beverage Establishment
a) Alcoholic Beverage Establishments shall be subject to compliance
with the Texas Alcoholic Beverage Code, as amended, and any
applicable local option elections.
b) An Alcoholic Beverage Establishment is permitted only by specific
use permit in R, C and CC zoning districts.
C) The regulations herein applicable to a public school shall also
apply to a day -care center or a child -care center as provided in
Section 109.331, Texas Alcoholic Beverage Code, as amended.
d) An Alcoholic Beverage Establishment shall not be located within:
1. Eight Hundred (800) feet from a church, public hospital,
public school, private school, and /or residential zoning
district. For this purpose, residential zoning districts shall
include, but is not limited to, properties that are zoned
Neighborhood Service and residential Planned
Development Districts;
2. One Thousand (1000) feet from a public school if the Town
Council receives a request for this additional spacing
requirement from the school district, and the Town Council
adopts such additional spacing requirements by resolution;
or
3. One Thousand (1000) feet from a private school if the
Town Council receives a request for this additional spacing
requirement from the board of the private school, and the
Town Council adopts the additional spacing requirements
by resolution.
e) Measurement for the distance between an Alcoholic Beverage
Establishment and the uses listed above or the nearest residential
zoning district shall be in a direct line from the Property Line of the
applicable use listed above or the nearest residential zoning
district to the Property Line of the Alcoholic Beverage
Establishment, and in a direct line across intersections.
f) There shall be no variances considered with regard to the
regulations set forth herein."
SECTION 4
Deletina Subsection 25.4 (Specific Use Permit for Private Club) of Section 25
(Specific Use Permits) of Chapter 2 (Zoning Districts) of Prosper's Zoning Ordinance.
Subsection 25.4 (Specific Use Permit for Private Club) of Section 25 (Specific Use Permits) of
Chapter 2 (Zoning Districts) of Prosper's Zoning Ordinance is hereby deleted in its entirety.
Ordinance No. 13 -48, Page 4
7 SECTION 5
Amending Paragraph 16 (Beer & Wine Package Sales) and Paragraph 26
(Restaurant or Cafeteria) of Subsection 1.4 (Conditional Development Standards) of
Section 1 (Use of Land and Buildings) of Chapter 3 (Permitted Uses and Definitions) of
Prosper's Zoning Ordinance. Paragraph 16 (Beer & Wine Package Sales) and Paragraph 26
(Restaurant or Cafeteria) of Subsection 1.4 (Conditional Development Standards) of Section 1
(Use of Land and Buildings) of Chapter 3 (Permitted Uses and Definitions) of Prosper's Zoning
Ordinance, is hereby amended and replaced as follows:
"1.4 CONDITIONAL DEVELOPMENT STANDARDS:
16. Alcoholic Beverage Sales:
Alcoholic Beverage Sales, as defined by the Prosper Zoning Ordinance,
as amended, shall mean any establishment, place of business or person
engaged in the selling of Alcoholic Beverages, as defined in the Texas
Alcoholic Beverage Code, as amended, to the general public for off -
premise personal or household consumption.
a) Alcoholic Beverage Sales shall be subject to compliance with the
Texas Alcoholic Beverage Code, as amended, and any applicable
local option elections.
b) Alcoholic Beverage Sales are permitted only in the NS, DTR, R,
DTC, C, CC and I zoning districts.
C) Beer sales are not permitted in residential zoning districts.
d) Pursuant to the Town Charter, the sale of liquor, as defined in the
Texas Alcoholic Beverage Code, as amended, shall be prohibited
by a person or entity holding a package store permit, as described
in the Texas Alcoholic Beverage Code, as amended, in any
zoning district which allows, in whole or in part, residential
development in the Town.
e) The regulations herein applicable to a public school shall also
apply to a day -care center or a child -care center as provided in
Section 109.331, Texas Alcoholic Beverage Code, as amended.
f) Alcoholic Beverage Sales shall not be located within the following:
1. Three hundred (300) feet from a church, public school,
private school, and /or public hospital. However, Alcoholic
Beverage Sales may be located within three hundred (300)
feet of a private school if minors are prohibited from
entering the place of business, as required by Section
109.53, Texas Alcoholic Beverage Code, as amended; or
2. One thousand (1,000) feet from a private school if the
Town Council receives a request for this additional spacing
requirement from the board of the private school, and the
Town Council adopts the additional spacing requirements
by resolution. But, the Town Council may not adopt this
Ordinance No. 13 -48, Page 5
additional spacing requirement if: (i) minors are prohibited
from entering the place of business engaged in Alcoholic
Beverage Sales, pursuant to Section 109.53, Texas
Alcoholic Beverage Code, as amended; (ii) the holder of a
retail off - premise consumption permit or license if less than
fifty percent (50 %) of the gross receipt for the premises,
excluding the sale of items subject to the motor fuels are
from the sale or service of alcoholic beverages; or (iii) the
holder of a license or permit issued under Chapter 27, 31
or 72, Texas Alcoholic Beverage Code, as amended, who
is operating on the premises of a private school.
g) Measurement of the distance between the place of business
engaged in Alcoholic Beverage Sales and the church or public
hospital shall be along the property line of the street fronts, from
front door to front door, and in a direct line across intersections.
Measurement for the distance between the place of business
engaged in Alcoholic Beverage Sales and a public or private
school shall be:
1. In a direct line from the Property Line of the public or
private school to the Property Line of the place of
business, and in a direct line across intersections; or
2. If Alcoholic Beverage Sales are located on or above the
fifth (5th) story of a multistory building, in a direct line from
the Property Line of the public or private school to the
Property Line of the place of business, in a direct line
across intersections, and vertically up the building at the
Property Line to the base floor on which Alcoholic
Beverage Sales are located.
h) In accordance with Section 109.33, Texas Alcoholic Beverage
Code, as amended, in this Paragraph 16, "private school' means
a private school, including a parochial school, that:
1. Offers a course of instruction for students in one or more
grades from kindergarten through grade twelve; or
2. Has more than one hundred (100) students enrolled and
attending courses at a single location.
If at any time an original Alcoholic Beverage permit or license is
granted by the Texas Alcoholic Beverage Commission to an
establishment, place of business, or person and the
establishment, place of business or person satisfies the
requirements regarding the distance requirements in this
Paragraph 16, then the same shall be deemed to satisfy the
distance requirements for all subject renewals of the license or
permit. This shall not be the case if the Texas Alcoholic Beverage
Commission revokes the license or permit.
j) There shall be no variances considered with regard to the
regulations set forth herein.
Ordinance No. 13 -48, Page 6
26. Restaurant or Cafeteria:
a) A Restaurant or Cafeteria is permitted by specific use permit in the
NS zoning district and is permitted by right in the O, DTO, DTR, R,
DTC, C, and CC zoning districts subject.
b) Restaurants with drive - through are only permitted in the R, C, and
CC zoning districts.
C) Restaurants or Cafeterias that sell Alcoholic Beverages for on-
premise consumption shall be subject to compliance with the
Texas Alcoholic Beverage Code, as amended, and any applicable
local option elections.
d) The regulations herein applicable to a public school shall also
apply to a day -care center or a child -care center as provided in
Section 109.331, Texas Alcoholic Beverage Code, as amended.
e) A Restaurant or Cafeteria that sells Alcoholic Beverages for on-
premise consumption shall not be located within the following:
1. Three hundred (300) feet from a church, public hospital,
public school and /or private school. However, Alcoholic
Beverage Sales may be located within three hundred (300)
feet of a private school if the holder of a license or permit
holds a food and beverage certificate covering a premise
that is located within three hundred (300) feet of a private
school; or
2. One thousand (1000) feet from a private school if the
Town Council receives a request for this additional spacing
requirement from the board of the private school, and the
Town Council adopts such additional spacing requirements
by resolution. Measurement for the distance between a
Restaurant or Cafeteria where Alcoholic Beverages for on-
premise consumption are sold and a church or public
hospital shall be along the property lines of the street
fronts, from front door to front door, and in a direct line
across intersections.
f) Measurement for the distance between a Restaurant or Cafeteria
where Alcoholic Beverages for on- premise consumption are sold
and a public and /or private school shall be:
1. In a direct line from the Property Line of the public and /or
private school to the Property Line of the place of
business, and in a direct line across intersections; or
2. If the Restaurant or Cafeteria that sells Alcoholic
Beverages for on- premise consumption is located on or
above the fifth (5th) story of a multistory building, in a direct
line from the Property Line of the public and /or private
school to the Property Line of the place of business, in a
direct line across intersections, and vertically up the
building at the Property Line to the base of the floor on
which the Restaurant or Cafeteria is located.
Ordinance No. 13 -48, Page 7
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g) If a Restaurant or Cafeteria receives seventy -five percent (75 %) or
more of its gross revenue on a quarterly basis from the sale or
service of Alcoholic Beverages for on- premise consumption, the
use will no longer qualify as a Restaurant or Cafeteria and will be
classified and regulated by the Town as an Alcoholic Beverage
Establishment under the Prosper Zoning Ordinance.
h) There shall be no variances considered with regard to the
regulations set forth herein."
SECTION 6
Amending Section 1.3(F) (Retail Uses) of Section 1 (Use of Land and Buildings) of
Chapter 3 (Permitted Uses and Definitions) of Prosper's Zoning Ordinance. Section 1.3(F)
(Retail Uses) of Section 1 (Use of land and Buildings) of Chapter 3 (Permitted Uses and
Definitions) of Prosper's Zoning Ordinance is amended to delete Beer & Wine Package Sales
and add Alcoholic Beverage Sales as follows:
Alcoholic Beverage 16 16 16 16 16 16 16
Sales
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Sales 4-6 4-6 4-6 a-6 a-6 a-6 a-6
Ordinance No. 13 -48, Page 8
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Ordinance No. 13 -48, Page 8
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SECTION 7
Amending Section 1.3(G) (Service Uses) of Section 1 (Use of Land and Buildings)
of Chapter 3 (Permitted Uses and Definitions) of Prosper's Zoning Ordinance. Section
1.3(G) (Service Uses) of Section 1(Use of Land and Buildings) of Chapter 3 (Permitted Uses
and Definitions) of Prosper's Zoning Ordinance is hereby amended as follows:
„
SECTION 8
Amending Section 4.5 (Parking Requirements Based on Use) of Section 4 (Parking
and Loadina) of Chapter 4 (Development Reauirements) of Prosper's Zonina Ordinance.
Section 4.5 (Parking Requirements Based on Use) of Section 4 (Parking and Loading) of
Chapter 4 (Development Requirements) of Prosper's Zoning Ordinance is hereby amended as
follows:
"4.5 PARKING REQUIREMENTS BASED ON USE
• Retail Store, Except as Otherwise Specified Herein: One (1) space per
two hundred and fifty (250) square feet of gross floor area."
SECTION 9
Penalty Provision. Any person, firm, corporation or entity violating this Ordinance or
any provision of Prosper's Zoning Ordinance No. 05 -20, as it exists or may be amended, shall
be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined a sum not
exceeding Two Thousand and 00/100 Dollars ($2,000.00). Each continuing day's violation
under this Ordinance shall constitute a separate offense. The penal provisions imposed under
this Ordinance shall not preclude Prosper from filing suit to enjoin the violation. Prosper retains
all legal rights and remedies available to it pursuant to local, state and federal law.
Ordinance No. 13 -48, Page 9
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SECTION 8
Amending Section 4.5 (Parking Requirements Based on Use) of Section 4 (Parking
and Loadina) of Chapter 4 (Development Reauirements) of Prosper's Zonina Ordinance.
Section 4.5 (Parking Requirements Based on Use) of Section 4 (Parking and Loading) of
Chapter 4 (Development Requirements) of Prosper's Zoning Ordinance is hereby amended as
follows:
"4.5 PARKING REQUIREMENTS BASED ON USE
• Retail Store, Except as Otherwise Specified Herein: One (1) space per
two hundred and fifty (250) square feet of gross floor area."
SECTION 9
Penalty Provision. Any person, firm, corporation or entity violating this Ordinance or
any provision of Prosper's Zoning Ordinance No. 05 -20, as it exists or may be amended, shall
be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined a sum not
exceeding Two Thousand and 00/100 Dollars ($2,000.00). Each continuing day's violation
under this Ordinance shall constitute a separate offense. The penal provisions imposed under
this Ordinance shall not preclude Prosper from filing suit to enjoin the violation. Prosper retains
all legal rights and remedies available to it pursuant to local, state and federal law.
Ordinance No. 13 -48, Page 9
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SECTION 10
Savings /Repealing Clause. Prosper's Zoning Ordinance No. 05 -20 shall remain in full
force and effect, save and except as amended by this or any other Ordinance. All provisions of
any ordinance in conflict with this Ordinance are hereby repealed to the extent they are in
conflict; but such repeal shall not abate any pending prosecution for violation of the repealed
ordinance, nor shall the repeal prevent a prosecution from being commenced for any violation if
occurring prior to the repeal of the ordinance. Any remaining portions of said ordinance shall
remain in full force and effect.
SECTION 11
Severability. Should any section, subsection, sentence, clause or phrase of this
Ordinance be declared unconstitutional or invalid by a court of competent jurisdiction, it is
expressly provided that any and all remaining portions of this Ordinance shall remain in full force
and effect. Prosper hereby declares that it would have passed this Ordinance, and each
section, subsection, clause or phrase thereof irrespective of the fact that any one or more
sections, subsections, sentences, clauses and phrases be declared unconstitutional or invalid.
SECTION 12
Effective Date. This Ordinance shall become effective from and after its adoption and
publication as required by law the Town Charter and by law.
DULY PASSED AND APPROVED BY THE TOWN COUNCIL OF THE TOWN OF
PROSPER, TEXAS, ON THIS 10TH DAY OF SEPTEMBER, 2013.
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Ray Smith, ayor
ATTEST:
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Robyn attle, Town Secretary
APPROVED AS TO FORM AND LEGALITY:
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Terrence S. Welch, Town Attorney
Date(s) of Publication:
Ordinance No. 13 -48, Page 10
Prosper Press