                                                                            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.




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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


                                          Melissa, Texas, Code of Ordinances
Page 13 of72
                                    CHAPTER 12- PLANNING AND ZONING
                                ARTICLE 12.300- ZONING ORDINANCE ADOPTED



          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


                                       Melissa, Texas, Code of Ordinances
Page 14of72

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                                   ARTICLE 12.300- ZONING ORDINANCE ADOPTED



           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.


                                          Melissa, Texas, Code of Ordinances
Page 15 of72
                                         CHAPTER 12 ·PLANNING AND ZONING
                                     ARTICLE 12.300- ZONING ORDINANCE ADOPTED


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



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)



                                          Melissa, Texas, Code of Ordinances
Page 17 of72
                                     CHAPTER 12 -PLANNING AND ZONING
                                 ARTICLE 12.300 ·ZONING ORDINANCE ADOPTED



                                                  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)



                                         Melissa, Texas, Code of Ordinances
Page 18 of72
                                                                                                                  /~
                                                                                                                  lY}J
                               CHAPTER 12 ·PLANNING AND ZONING
                           ARTICLE 12.300 ·ZONING ORDINANCE ADOPTED



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



                                 Melissa, Texas, Code of Ordinances
Page 19 of72
                                CHAPTER 12 ·PLANNING AND ZONING
                            ARTICLE 12.300 ·ZONING ORDINANCE ADOPTED



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&amp;          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



                                  Melissa, Texas, Code of Ordinances
Page 20 of72
                                 CHAPTER 12- PLANNING AND ZONING
                             ARTICLE 12.300 ·ZONING ORDINANCE ADOPTED



 Park or             X   X           X            X            X        X    X     X     X
 Pl<!y~ound
 Police Station      s   s           s            s            s        s    X     X     X

  Post Office                                                                X     X     X
  Prison or          s                                                                   s
  Penitentiary
  Sanitarium                                                                       X     X
  School (nursery    s   s           s            s            s        s    X     X     X
  or kindergarten}
  School (trade or                                                           s     X     X
. business)
  School             X   X           X            X            X        X    X     X     X
  (elementary or
  middle)
  School (high       X   X           X            X            X        X    X     X     X
  school)
  Government                                                                 X     X     X
  Office
  Swimming Pool      s   s            s           s            s        s    X     X     X
  (public)
  Tennis Court       s   s            s           s            s        s    X     X     X
  (public)




 Commercial         A    SF-1         SF-2        SF-3         MF       MH   C-1   C~2   I-1
 Uses:
 Alcoholic                                                                         X
 Beverage Sales
 (Wet Areas
 Only)
 Amusement                                                                         X     X
 Park
 Animal Hospital X                                                           X     X     X
 Animal Shelter     X                                                              X     X
 Antique Shop                                                                X     X
 Apparel Store                                                               X     X
 Appliance Rental                                                            X     X     X
 Store
 Appliance                                                                         X     X
 Repair Shop
 Appliance Store                                                             X     X
 (retail)
 Art Su_llPly Store                                                          X     X



                                   Melissa, Texas, Code of Ordinances
Page 21 of72
                                CHAPTER 12 -·PLANNING AND ZONING
                            ARTICLE 12.300- ZONING ORDINANCE ADOPTED



Athletic or                                                                         X   X   X
Fitness Club
Audio and Video                                                                     X   X
                                  ,.
Store fretail)
Auto Paint                                                                              X   X
&amp; Body
Shop
Auto Rental                                                                         s   X   X

Auto Repair                                                                             X   X
Garage
Auto Sales Lot                                                                          X   X

Bakery (retail)                                                                     X   X
Bank or                                                                             X   X   s
Financial
Institution                                                                 '
Barber or           s   s                5            s            5            s   X   X   s
Beauty Shop
Beer/wine sales                                                                         X
(off-premise,
wet areas only)
Bicycle Sales                                                                       X   X
&amp; Repair
Boat Sales                                                                              X   X
 Bowling Alley                                                                      s   X   X
Building                                                                                X   X
Materials Yard
 Bus Tenninal                                                                       X   X   X
 Business Office                                                                    X   X   X
Cabinet Shop                                                                        s   X   X
 Camera Store                                                                       X   X
_(retaill
 Car Wash                                                                           s   X   X
 Carnival or                                                                        s   s   s
 Circus
Carpet Store                                                                        X   X
 (retail)
 Child Care                                                                         X   X   X
 Center
 Computer Store                                                                     X   X
jretaiiLservice)
 Contractor's       X   X                X            X            X            X   X   X   X
 Building
_[temporary)
 Dental Clinic or                                         )                         X   X
 Office


                                       Melissa, Texas, Code of Ordinances
Page 22 of72
                                CHAPTER 12- PLANNING AND ZONING
                            ARTICLE 12.300 ·ZONING ORDINANCE ADOPTED



Department                                                                 X   X
Store
Electrical Supply                                                              X   X
Store
Electronics Store                                                          X   X
(retail)
Farm Implement                                                                 X   X
Sales
Feed Store                                                                     X   X
Florist Sho}l                                                              X   X
Flea Market                                                                    X   X
[outside)
FraternityfSoror                                                           X   X
ity Lodge
Furniture Store                                                            X   X
(retail)
Game Hall                                                                  s   X   X
Gift or Novelty                                                            X   X
Shop
Go-Cart Track                                                                  X   X
Golf Course         X   s            s           s            s        s       X   X
Golf Course                                                                    X   X
 fminiature)
Golf Driving        s                                                          X   X
Range
Grainery or Gin     X                                                              X

Grocery Store                                                              X   X
Gun Shooting        s                                                          s   X
Range (indoor)
Gunsmith Shop                                                              X   X
Hardware Store                                                             X   X   X
Heavy                                                                          X   X
Equipment Sales
Hobby Shop                                                                 X   X
Hotel or Motel                                                             s   X   X

 Jewelry Store                                                             X   X
 Kennel             s   s            s           s                     s   s   X   X
 Laboratory,                                                               s   X   X
 Medical or
 Dental
 Laundry or Dry                                                            X   X   X
 Cleaners
 Lawnmower          s   s            s           s            s        s   s   X   X
 Sales&amp;



                                  Melissa, Texas, Code of Ordinances
Page 23 of72
                         CHAPTER 12- PLANNING AND ZONING
                     ARTJCLE 12.300- ZONING ORDJNANCE ADOPTED



Service
Liquor sales (off-                                                  X
premise, wet
areas onlvl
Lithographic                                                    X   X   X
Shop
Locksmith Shop                                                  X   X   X
Meat Market                                                     X   X   X
Medical Clinic or                                               X   X   X
Office
Mini-warehouse                                                  s   X   X
Manufactured                                                        X   X
Home Sales Lot
Massage                                                             s   s
Establishment
Mortuary or                                                     s   X   X
Funeral Home

 Motorcycle Sales                                                   X   X
 Movie Theater                                                      X   X
 (drive-in)
 Movie Theater                                                  X   X   X
 (indoor)
 Musical                                                        X   X
 Instrument
 Store
 Newspaper                                                      X   X
 Office
 Newsstand                                                      X   X
 Nightclub                                                          X   X
 Office Supply                                                  X   X   s
 Store
 Optical Clinic or                                              X   X
 Office
 Optical                                                        X   X
 Dispensary
 Store
 Paint Sales Store                                              X   X
I retail)
 Pawnshop                                                       s   X   X
 Pet Grooming                                                   X   X
 Shog
 Pet Shop                                                       X   X
 Pharmacy or                                                    X   X
 DrugStore
 Picture Framing                                                X   X



                           Melissa, Texas, Code of Ordinances


                                                                            ~\
Page24 of72
                                 CHAPTER 12- PLANNiNG AND ZONING
                             ARTICLE 12.300 ·ZONING ORDINANCE ADOPTED



    Shop
    Plant Nursery        s                                                  X   X
    Plumbing Shop                                                       X   X
    (retail)
    Pool or Billiard                                                    s   X
     Hall
     Printing Shop                                                      X   X
     Private Club                                                       X   X   X
     (serving alcohol)
     Professional                                                       X       X
~
                                                                            X
     Offices
     Recording                                                          X   X   X
     Studio
     Recreation                                                         X   X
     Center
     Restaurant or                                                      X   X   X
     Cafe (inside)
     Restaurant,                                                        X   X
     fdrive-in)
     Second Hand                                                        X   X
     Store
     Service Station                                                    s   X   X
     Sexually                                                               s   s
     Oriented
     Business
     Shoe or Boot                                                       X   X
     Store
     Shopping Center                                                        X   X
     or Mall
     Sign Shop                                                              X   X
     Skating Rink                                                       s   X   X
     Sporting Goods                                                     X   X
     Store
     Tanning Salon                                                      X   X
     Taxidermist                                                            X   X
     Tire Sales &amp;                                                       X   X
     Repair
     Tool Rental                                                            X   X
     Travel Agency                                                      X   X
     Truck Rental                                                           X   X
     Truck Repair                                                           X   X
     Truck Sales                                                            X   X

     Truck Wash                                                             X   X
     Upholstery Shop                                                        X   X
     Washateria                                                             X   X


                                   Melissa, Texas, Code of Ordinances
    Page 25 of72
                                                                                    1./)-
                                                                                    (j)L'
                             CHAPTER 12 ·PLANNING AND ZONING
                         ARTICLE 12.300 ·ZONING ORDINANCE ADOPTED



l (self-service)


 Industrial Uses:   A   SF-1     SF-2         SF-3         MF       MH   C-1   C-2   1-1
 Airport                                                                       s     s
 Ammonia
 Manufacturing
 Apparel                                                                             X
 Manufacturing
 Appliance                                                                           X
 Manufacturing
 Artificial Limb                                                                     X
 Manufacturing
 Asphalt Batching                                                                    s
 Plant
 Auto Salvage
 Yard
 Bakery,                                                                       X     X
 Commercial
 Bleach
 Manufacturing
 Bookbinding                                                                   s     X
 &amp;
 Publishing
 Bottling Plant                                                                s     X

  Box                                                                                s
  Manufacturing
  Brewery                                                                            s
  Brick or Tile
  Manufacturing
  Canning
  Operation
  Carpet
  Manufacturing
  Cartage                                                                      s     X
  Operation
  Chlorine
  Manufacturing
  Cold Storage                                                                       X
  Plant
  Concrete                                                                     s     X
  Batching Plant



                               Melissa, Texas, Code of Ordinances
Page 26 of72
                         CHAPTER 12 -PLANNING AND ZONING
                     ARTICLE 12.300- ZONING ORDINANCE ADOPTED



Concrete
Product Casting
Plant
Contractor Yard                                                 X   X
(outside
storage)
Cotton Gin
Creamery                                                            s
Creosote
Manufacturing
Distribution                                                    s   X
Center
Distillation Plant
Dying Plant
Electroplating                                                      s
Envelope                                                            s
Manufacturing
Explosives
Manufacturing
Fertilizer
Manufacturing
Fiberglass
Manufacturing
Fireworks
Manufacturing
Food Processing                                                     s
Foundry
Freight                                                             X
Terminal, Motor
Freight                                                             X
Terminal,
Railroad
Furniture                                                           s
Manufacturin_g_
Glass                                                               s
Manufacturing
Glue
Manufacturing
Gypsum
Manufacturing
Heliport or                                                     s   s
Helistop
Ice Cream Plant                                                     s
Ice Plant                                                           X

 Incinerator                                                    s   s


                           Melissa, Texas, Code of Ordinances
Page 27 of72
                           CHAPTER 12 ·PLANNING AND ZONING
                       ARTICLE 12.300 ·ZONING ORDINANCE ADOPTED



Insecticide
Processing
Junkyard
Laundry Plant                                                         s
Light                                                                 X
Fabrication
Plant
Livestock          s                                              s   s
Auction Barn
Machine Shop                                                          s
Marble
Manufacturing
Mattress                                                              s
Manufacturing
Meat Processing                                                       s
Plant
Metal                                                                 s
Fabrication
Metal Stamping                                                        s
and Extrusion
Mining,
Extraction
Operation
Monument                                                              X
Works
Packaging                                                         s   X
Operation
Paint
Manufacturing
Pallet                                                                X
Manufacturing
Paper Mill
Pesticide
Processing
Petroleum                                                             X
Products
(wholesale)
 Petroleum
 Refinery &amp;
Storage
 Pharmaceutical                                                       s
 Manufacturing
 Plastic Product
 Manufacturing
 Pottery                                                              X
 Manufacturing
 Poultry


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



Processing Plant
Radio                                                                                        s         X
Transmitting
Station
Rendering Plant
Smelter Plant
Tanning Plant
Television                                                                                   s         X
Transmitting
Station
Textile
Manufacturing
Tire
Manufacturing
Tire Recapping                                                                                         s
Plant
Vehicle                                                                                      X         X
Conversion
Facility
Warehouse                                                                                    s         X

Welding Shop                                                                                 s         X

Wrecking Yard




Commercial         A          SF-1         SF-2        SF-3         MF       MH   C-1        C-2        I-1
Uses:
Accessory          X          X           X            X            X        X    X          X          X
Building
Home               s          s            s           s            s        s    s          s
Occupation
Temporary          s          s            s           s            s        s    s          s         X
Construction
Office
Temporary          s          s            s           s            s        s    s          s          s
Building




20.2 In instances where a proposed land use is not included in the Schedule of Uses and interpretation is
required regarding the appropriate classification of an unlisted form of land use, the City Council shall
make such determination concerning the classification of such use. The City Council shall consider the
nature and described performance of the proposed use and its compatibility with the uses permitted in the


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                                   ARTICLE 12.300- ZONING ORDINANCE ADOPTED



various districts and determine the zoning district or districts within which such use should be permitted.

(Ord. No. 05-16, adopted 1-25-05, Sec. 2; Ord. No. 06-41, adopted 9-26-06, Sec. 2)

                                                   SECTION 21

                                   SCHEDULE OF DISTRICT REGULATIONS

In addition to the schedule of regulations below, also see the special and additional regulations in Section
2 3 of this zoning ordinance.


                         A           SF-1         SF-2         SF-3         MF    MH      C-1         C-2       1-1
 Lot Area (sg. ft.)      2 acres     20,000       10,000       6,000        (b)   6,000   none        none      none
 Minimum Lot Width       150         100          80           60           80    so      none        none      none
 (ft.)
 Minimum Lot Depth       200         120          120          100          150   120     none        none      none
  (ft.)
 Front Yard Setback      50          30           25           25           25    25      (d)         20        20
  (ft.)
 Side Yard Setback       (a)         15           10           7.5          15    7.5     (d)         10        (e)
  (ft.)/interior lot
 Side Yard Setback       (a)         25           20           20           25    20      (d)         25        (f)
 _(ft.)jcorner lot
  Rear Yard Setback      25          25           25           25           20    10      (d)         20        (f)
 _(ft.)
  Maximum Height          2.5        3            2.5          2.5          3     1.5     100'        100'      none
 lstories or ft.)
  Maximum Lot            15          40           40           40           40    40      50          50        so
  Coverage (%)
  Minimum Dwelling       1,100       1,800        1,500        1,000        (c)   720     none        none      none
  Size(sq. ft.)*
  Maximum Density .      n/a         2            4            7            15    7       nja         nja       n/a
  Per Acre




*The minimum floor area of any dwelling shall be exclusive of garages, breezeways, and porches.

      (a) The minimum side yard on each side of the lot shall have a width of not less than 15% of the
      width of the lot or 50 feet, whichever is less.

      (b) The minimum lot area for multi-family dwellings shall have a minimum of 3,000 square feet per
      dwelling unit.

      (c)   The minimum dwelling size for each multi-family dwelling unit shall be 600 square feet.

      (d) None required for buildings in existence at the time of passage of this ordinance. However; when
      new construction of buildings in this district occur, then yard setbacks shall be at least 10 feet from


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     the property line.

     (e) The minimum side yard setback shall be at least 10 feet from the property line except where a
     permitted use abuts a residential district boundary line, the minimum yard setback shall be a
     minimum of 20 feet.

     (f) The minimum side or rear yard setback shall be at least 20 feet from the property line except
     where a permitted use abuts a residential district boundary line, the minimum yard setback shall be a
     minimum of 50 feet.

(Ord. No. 04-02, adopted 3-10-04, Sec. 2)

                                                  SECTION 22

                          OFF-STREET PARKING AND LOADING REQUIREMENTS

22.1 Purpose: The purpose of this article is to, among other things, establish limitations on the number of
vehicles parked or stored, the types of vehicles parked or stored and the manner in which vehicles are
parked or stored: to secure health, safety and welfare of the general public; to regulate, control and limit
public nuisances and other conditions and circumstances as set forth in this article that adversely affect the
community appearance and orderly development; to lessen congestion in the. streets; to facilitate the
adequate provisions of transportation; and to encourage the most appropriate use of land. Minimum off-
street parking and loading shall be provided as set forth in Section 20 and the following provisions. Uses
not listed in Section 20 shall provide required off-street parking according to the most similar use listed in
the Schedule of Uses, as determined by the City Council.

22.2 Definitions. For the purposes of this Section 22, the following terms, phrases, words and their
derivation shall have the meaning given below:

     (a) Vehicle. Any and every device in, upon or by which a person or property is or may be
     transported, drawn or moved upon a street, highway, waterway or airway and shall include, but is not
     limited to, any automobile, bus, motor home, truck, tractor, farm machinery, motorcycle, scooter,
     moped, all-terrain vehicle, boat, aircraft, recreational vehicle, golf cart, go-cart, trailer (boat, utility,
     car, stock, etc.), fifth wheel trailer, camper, camper shell, wheeled towing frame, semi tractor, semi
     tractor trailer, truck bed mounted on a chassis and mobile home. This definition does not include non-
     motorized bicycles, small engine lawn mowers and devices of similar scale.

     (b) Special Vehicle. A vehicle designed and used primarily for recreational uses. A special vehicle
     shall include, but is not limited to, the following: motor home, camper, camper shell, boat on or off of a
     trailer, recreational vehicle, fifth wheel trailer or any similar vehicle.

     (c) Utility Vehicle. A vehicle designed and used primarily for utilitarian uses. A utility vehicle shall
     include, but is not limited to, the following: trailer, tractor, truck-tractor, farm machinery, boat trailer
     without a boat, truck bed mounted on a chassis, wheeled towing frame, utilitY trailer, boxed trailer,
     flat bed trailer, stock trailer, car carrier, panel truck or other similar vehicle.

     (d)   Storage. The continuous parking of a vehicle for more than seventy-two (72) hours.
     (e) Shielded. The view of the vehicle is obstructed by a fence or other structure or vegetation that
     completely conceals the vehicle from public view.



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     (t) Front yard. An open, unoccupied space on a lot facing a street and extending from the front of the
     lot to the front of the principal building, between the side lot lines.

     (g) Rear yard. A space unoccupied by the principal structure extending for the ful1 width of the lot
     between a principal structure and the rear lot line.

     (h) Side yard. An open unoccupied space on the same lot with the building, situated between the
     building and the side line of the lot, and extending from the front yard to the rear yard.

22.3 General Provisions.

     (a) Improved parking surfaces shall be maintained in good and safe condition and be free of holes,
     cracks, spalling, or other failures that may effect, among other things, the use, drainage from the
     property, drainage on adjoining property or the longevity of the material.

      (b) No vehicle, except mobile homes intended as permanent residences in manufactured home
      districts or recreational vehicles in a designated recreational vehicle park, may be used for
      housekeeping, living, or sleeping quarters. No vehicle may be used for the storage of trash or debris or
      for storage of personal property for which the vehicle was not designed. However, upon a request
      from the property owner or tenant of a property, the City building official may, once during a calendar
      year, permit the use of a special vehicle on a residential lot for a period not to exceed two (2) weeks in
     ·a calendar year.

22.4 Special Off-Street Parking Provisions for Residential Districts and Residential Properties in Other Districts
Except Agricultural Districts.
     (a)   All required parking spaces shall be located behind the required front setback line.

     (b)   Required off-street parking shall be provided on the same lot as the use it is to serve.

     (c) No unshielded parking or storage shall be allowed except on a paved reinforced concrete or
     asphalt parking space.

     (d)   Restrictions (not applicable to vehicles parked or stored in a completely enclosed building):

           (1) The total number of vehicles that may be stored or parked on a lot shall not exceed five (5),
           unless the occupant can establish that the number of vehicles does not exceed the number of
           licensed drivers who reside at the premises by more than two (2).

           (2) All vehicles must be maintained in an operable condition and comply with Article 7. 700 of
           this Code and V.T.C.A., Transportation Code IS 683.001 et seq., Abandoned and Junk Vehicles, as
           amended.

           (3) All vehicles must have and comply with the required current federal and state licensing and
           registration.

           (4) Vehicular access to unshielded improved parking surfaces shall be provided by means of a
           continuous full width paved reinforced concrete or asphalt driveway surface.

           (5) Special vehicles: In addition to the above general restrictions, special vehicles shall be
           parked andfor stored on a paved reinforced concrete or asphalt parking surface. The storage of



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



            special vehicles in the front yard shall be prohibited.

            (6)   Utility vehicles: In addition to the above general restrictions:

                  a.   The storage of utility vehicles in the front yard shall be prohibited.

                  b. The unshielded parking or storage of tractors, tractor trailers, farm machinery, or
                  other vehicles designed primarily for nonresidential purposes, such as, among others,
                  construction equipment designed for hauling or moving of materials, is prohibited.

22.5 Deed Restrictions and Covenants. In certain residential developments that have deed restrictions or
other restrictive covenants on file for the benefit of the neighborhood that are more restrictive than the
provisions of this article, the provisions of said deed restrictions or covenants shall prevail.

22.6 Off-Street Loading Space All Districts.

     (a) All retail, commercial and industrial structures having three thousand (3,000) square feet or
     more of gross floor area, either in the building or lot, shall provide and maintain off-street facilities for
     the loading and unloading of merchandise and goods. At least one (1) additional space is required for
     each additional twenty thousand (20,000) square feet of gross floor area. A loading space shall consist
     of an area of a minimum of ten (1 0) by twenty-five (25) feet. All drives and approaches shall provide
     adequate space and clearances to allow for the maneuvering of trucks off-street.

     (b) Kindergartens, child care centers, nursery schools, and similar child training and care
     establishments shall provide reinforced concrete or asphalt paved off-street loading and unloading
     space on a private drive to accommodate one (1) motor vehicle for each ten (10) students or children
     cared for by the establishment

      (c) Loading docks and areas shall be located within the building or on the lot adjacent to a public
      alley or private service drive.

22.7 Schedule of Parking Requirements Based on Use. At the time any building or structure is erected or
structurally altered, off-street parking spaces shall be provided in accordance with the parking schedule in
Section 20 and the applicable parking regulations specified in each district

22.8 Rules for Computing Number of Parking Spaces. In computing the number of off-street parking spaces
required for each ofthe above uses, the following rules shall govern:

      (a) "Floor area" shal1 mean the gross floor area of the specific use. "Site area" shall mean square feet
      of the property site.

      (b) Where fractional spaces result, the parking spaces required shall be constructed to be the
      nearest whole number.

      (c) The parking space requirement for a use not specifically mentioned herein shall be the same as
      required for a use of similar nature as determined by the City Council.

      (d) In the case of mixed uses, the parking spaces required shall equal the sum of the requirements of
      the various uses computed separately.

      (e)   Handicapped parking spaces shall be in accordance with State and Federal requirements.



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                                     CHAPTER 12 ~PLANNING AND ZONING
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22.9 Location of Parking Spaces. All parking spaces required herein shall be located on ~he same lot with the
building or use served, except as follows:

     (a) Where an increase in the number of spaces is required by a change or enlargement of use or
     where such spaces are provided collectively or used jointly by two (2) or more buildings or
     establishments, the required spaces may be located not more than three hundred (300) feet from the
     buildings served.

     (b) Not more than fifty (50) percent of the parking spaces required for theaters, bowling alleys,
     skating rinks, restaurants, or similar uses and not more than eighty (80) percent of the parking spaces
     required for a church or school auditorium or similar uses may be provided and used jointly by
     similar uses not normally open, used or operated during the same hours as those listed; provided,
     however, that a written agreement thereto is properly executed and filed as specified below. In any
     case where the required parking spaces are not located on the same lot with the building or use
     served, or where such spaces are collectively or jointly provided and used, a written agreement
     thereby assuring their retention for such purposes, shall be properly drawn and executed by the
     parties concerned, executed by the parties concerned, approved as to form by the City Attorney and
     shall be filed with the application for a building permit.

22.10 Identification of Parking Spaces. Except for single-family and duplex residential uses, parking spaces
shall be permanently and clearly identified by stripes, buttons, tiles, curbs, barriers, or other approved
methods. Nonpermanent markings, such as paint, shall be regularly maintained to ensure continuous dear
identification of the spaces. Handicapped parking shall be in accordance with the State of Texas
requirements.

22.11 Use of Parking Spaces All Districts. Required off-street parking and loading spaces shall be used only
for these respective purposes. Except for occasional "garage sales" or "sidewalk sales," required off-street
parking and loading spaces shall not be used for display of items for sale.

22.12 Temporary Nonconforming Status. Any legally existing parking or storage application rendered
nonconforming by this Ordinance at the time of its adoption may continue as specified below:

     (a) Existing usage of sanctioned nonconforming parking surfaces may continue in non-conforming
     status until such time as new construction or repair/renovation exceeds fifty percent (50%) of the
     existing parking surface.

     (b) Storage of vehicles rendered nonconforming by this Ordinance at the time of its adoption may
     continue until December 31, 2003. After that date, nonconforming storage shall be deemed in
     violation of this Ordinance, as amended, and the property owner may be cited for such violation and
     be subject to the provisions of paragraph 22.13.

     (c) Upon any new construction of principal building(s) or parking areas or changes in property
     usage or ownership, a nonconforming status shall terminate and compliance with this Ordinance, as
     amended, shall be required.

22.13 Violations: Any person violating any of the provisions of this article or any amendment thereto shall
be deemed guilty of a misdemeanor, and upon conviction in Municipal Court shall be subject to a fine not to
exceed the sum of $200.00 for each offense. Each and every day such violation continues shall constitute a
separate offense.




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                                     CHAPTER 12- PLANNING AND ZONING
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(Ord. No. 22-57, adopted 12-10-02, Sec. 2)

                                                 SECTION 23

                                SPECIAL AND ADDITIONAL REGULATJONS

23.1 Lot Regulations:

     (a) Lot Area: The minimum residential lot area for the various districts shall be in accordance with
     the regulations for each district, except that a lot having less area than herein required which was an
     official"lot of record" prior to the adoption of this ordinance may be used for a single-family dwelling·
     and no lot existing at the time of passage of this ordinance shall be reduced in area below the
     minimum requirements set forth in the respective district

     (b) Location of Dwellings and Buildings: Only one (1) main building for one-family and duplex use
     with permitted accessory buildings may be located upon a lot or unplatted tract Every means of
     access shall have a minimum width of twenty-five (25) feet. Where a lot is used for retail and dwelling
     purposes, more than one (1) main building may be located upon the lot but only when such buildings
     conform to all the open space, parking and density requirements applicable to the uses and districts.
     Whenever two or more main buildings, or portions thereof, are placed upon a single lot or tract and
     such buildings do not face upon a public street, the same may be permitted when the site plan for such
     development is recommended by the Planning and Zoning Commission and approved by the City
     Council so as to comply with the normal requirements for platting. No parking area, storage area, or
     required open space for one building shall be computed as being the open space, yard, or area
     requirements for any other dwelling or other use.

23.2 Front Yards:

     (a) On corner lots, the front yard setback shall be observed along the frontage of both intersecting
     streets (unless shown specifically othetwise on a final plat).

     (b) Where the frontage on one side of a street between two intersecting streets is divided by two or
     more zoning districts, the front yard shall comply with the requirements of the most restrictive
     district for the entire frontage.

     (c) Where a building line has been established by a plat approved by the City Council or by
     ordinance and such line requires a greater or lesser front yard setback than is prescribed by this
     ordinance for the district in which the building line is located, the required front yard shall comply
     with the building line so established by such ordinance or plat provided no such building line shall be
     Jess than twenty (20) feet (except as approved by "PD").

     (d) The front yard shall be measured from the property line to the front face of the building. covered
     porch, covered terrace or attached accessory buildings. Eaves and roof extensions or a porch without
     posts or columns may project into the required front yard for a distance not to exceed four (4) feet
     and subsurface structures, platforms or slabs may not project into the front yard to a height greater
     than thirty (30) inches above the average grade of the yard.

     (e) Where lots have double frontage, running through from one street to another, a required front
     yard shall be provided on both streets unless a building line for accessory buildings has been
     established along one frontage on the plat or by ordinance, in which event only one required front
     yard need be observed.


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                                      CHAPTER 12- PLANNING AND ZONING
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     (f) Visual clearance shall be provided in all zoning districts so that no fence, wall, architectural
     screen, earth mounding or landscaping obstructs the vision of a motor vehicle driver approaching any
     street, alley or driveway intersection.

           On any corner Jot for which front and 'side yards are required herein, no wall, fence, structure,
           sign, tree, or other planting or slope terrace or embankment may be maintained higher than
           three (3) feet above the street grade so as to cause danger or hazard to traffic by obstructing the
           view of the intersection from a point thirty (30) feet back from the right-of-way corner.

     (g) Gasoline service station pump islands may not be located nearer than eighteen (18) feet to the
     front property line. An unenclosed canopy for a gasoline filling station may extend beyond the front
     building line but shall never be closer than ten (1 0) feet to the property line.

     (h) Where a future right-of-way line has been established for future widening or opening of a street
     or thoroughfare upon which a lot abuts, the front or side yard shall be measured from the future right-
     of-way line.

23.3 Side Yards:

     (a) Every part of a required side yard shall be open and unobstructed except for: (1) accessory
     buildings as permitted herein; (2) the ordinary projections of window sills, belt courses, cornices, and
     other architectural features not more than twelve (12) inches into the required side yard; and (3) roof
     eaves projecting not more than thirty-six (36) inches into the required side yard. Balconies shall not
     project into the required side yard.

     (b) For multi-family structures in the MF and PD Districts, a minimum side yard, or space between
     adjoining buildings, shall be thirty (30) feet between building walls when such walls have openings
     for windows and access, and twenty (20) feet when no openings exist.

     (c) When a non-residentially zoned lot or tract abuts upon a zoning district boundary line dividing
     that lot or tract from a residentially zoned lot or tract, a minimum side yard of ten (10) feet shall be
     provided on the nonresidential property. An opaque wood fence or masonry wall having a minimum
     height of six (6) feet above the average grade of the residential property shall be constructed on non-
     residential property adjacent to the common side (or rear) property line.

23.4 Rear Yards: The required rear yard shall be open and unobstructed from a point thirty (30) inches
above the average elevation of the graded rear yard, except for accessory buildings as permitted herein.
Eaves, covered porches, and roof extensions without structural support in the rear yard may extend into
the rear yard a distance not to exceed four (4) feet Balconies shall not project into the required rear yard.

23.5 Swimming Pools: It is the purpose of the following provisions to recognize an outdoor swimming pool
as a potential attractive nuisance and to promote the safety and enjoyment of property rights be
establishing rules and regulations governing the location and improvement of swimming pools whether
privately, publicly or commercially owned or operated.

     (a) Permits and Approvals: No swimming pool shall be constructed or used until a swimming pool
     building permit and a certificate of occupancy have been issued therefor. No building permit and no
     final certificate of occupancy shall be issued unless the proposed sanitary facilities and water supply
     comply with applicable local and State Health Department regulations.

     (b)   Requirements: A swimming pool may be constructed and operated when:


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



            (1)   the pool is not located in any required front or side yard abutting a street;

            (2) a wall or fence, not less than three and one-half (3-0} feet in height, with self-enclosing and
            self-latching gates at all entrances, completely encloses either the pool area or the surrounding
            yard area and which children cannot crawl through;

            (3) all lighting of the pool is shielded or directed to face away from adjoining residence. If
            lights are not individually shielded they shall be so placed, or the enclosing wall or fence shall be
            so designed, that direct rays from the lights shall not be visible from adjacent properties;

            (4) no broadcasting system is used for the purpose of advertising the operation of the pool or
            for the attraction of persons to the premises. This shall not prevent a public address system
            necessary or useful to the supervision of the pool and the safety of swimmers; and

23.6 Temporary Construction Buildings: Temporary buildings for uses incidental to construction work on
the premises shall be permitted in any zoning district but shall be immediately removed upon the
completion· or abandonment of the construction work. The Building Inspector shall determine the
appropriate time period the construction buildings may be used on the site.

23.7   Type of Exterior Construction.
At least 80 percent of the exterior walls of the first floor of all structures shall be of masonry construction
exclusive of doors, windows, and the area above the top plate line. Each story above the first floor of a
straight wall structure shall be at least 80 percent masonry exclusive of doors, windows, and the area
above the top plate lines.

Masonry construction in all districts shall be exterior walls constructed of brick, rock, stone, stucco, tilt wall
materials, concrete, concrete block, or other approved masonry materials and shall be constructed in
accordance with the Melissa Building Code, but in no case shall brick be less than three inches in thickness
when applied as a veneer nor shall it be less than the thickness required by the Melissa Building Code when
serving as a structural masonry wall; and in no case shall stone, concrete, concrete blocks or tilt wall
materials, or other approved masonry materials other than brick be less than 3.58 inches in thickness when
applied as a veneer nor shall it be less than the thickness required by the Melissa Building Code when
serving as a structural masonry wall.

Homes and structures in the Historical Overlay District are eligible for a Special Use Permit to use wood or
similar construction instead of masonry construction if such construction would make the home or
structure more compatible with the preservation of that Historical Overlay District

23.8 Types of Roofing Materials. Roofing material in all districts shall consist of architectural asphalt
shingles, including laminated shingles and "shadowed" three-tab shingles, clay and concrete tile, metal
shingles, mineral-surfaced row roofing, slate and slate-type shingles, wood shingles, wood shakes or metal
roof panels and shall be constructed in accordance with the Melissa Building Code. Should architectural
shingles be used as roofing material, said shingles shal1 be accompanied with a minimum twenty-five (25)
year warranty. Under no circumstance shall three-tab shingles be used as roofing material.

(Ord, No. 98-08, adopted 7-14-98, Sec.l; Ord. No.12-05,adopted 11-15-11, Sec. 2)

                                                    SECTION 24

                                        ACCESSORY BUILDING REGULATIONS


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24.1 In a single-family residential or multi-family district, an accessory building is a subordinate building
exceeding one hundred twenty (120) square feet of floor area, attached to or detached from the main
building, without separate bath or kitchen facilities, not used for commercial purposes and not rented.

24.2 In other districts, an accessory building is a subordinate building, the use of which is incidental to and
used only in conjunction with the main building.

24.3 No accessory building shall be greater in height than the main structure.

24.4 Area Regulations for Accessory Buildings in Single and Multi-Family Districts:

     (a)    Size ofYards:

            (1) Front Yard: Attached front accessory buildings shall have a front yard not less than the
            main building or as specified in the particular district. Detached accessory buildings shall be
            located in the area defined as the rear yard.

            (2) Side Yard: There shall be a side yard not less than five (5) feet from any side lot line, alley
            line, or easement line; except that adjacent to a side street, the side yard shall never be less than
            ten (10) feet.

            (3) Rear Yard: There shall be a rear yard not Jess than five (5) feet from any lot line, alley line,
            or easement line. Carports, garages, or other accessory buildings, located within the rear portion
            of a lot as heretofore described shall not be located closer than fifteen (15) feet to the main
            building nor nearer than five (5) feet to any side lot line.

            (4) No accessory building or structure shall obstruct traffic vision in a triangle formed by legs
            of forty (40) feet extending horizontally in each direction from the property corner.

24.5 Outbuildings: As used herein, an "outbuilding" is defined as a structure situated on property zoned for
residential use, primarily intended to be used for minor storage purposes, but not for the storage of
automobiles or human or animal habitation. The erection, installation, construction or use of an
outbuilding shall be subject to the regulations as set forth herein.

     (a) No outbuilding shall be larger than one hundred ninety-two (192) square feet, the dimensions of
     which must not exceed twelve feet (12') by sixteen feet (16') in width and length.

     (b) An outbuilding shall not exceed the height of the main structure. The roof of the outbuilding shall
     not exceed the roof pitch or height of the primary structure.

      (c)   No more than one outbuilding shall be erected, placed, installed or constructed on any lot

     (d) Outbuildings may be of metal, wood or masonry construction. An outbuilding must be of a
     neutral color such as white, tan or brown; provided however, the outbuilding may be the same color
     of the primary structure situated on the property which the outbuilding is located. All exterior
     surfaces must be painted or coated with a protective material so as to prevent decay, rust or
     deterioration due to weather and environment. The floor of an outbuilding may be comprised of
     concrete slab or other similar foundation or cinder block, wood slat or other similar nonpermanent
     material or composition. The outbuilding may contain electrical, water and any other utility
     connection necessary to serve the outbuilding with said utility(ies). Unless an outbuilding is
     constructed and/or situated on a concrete slab foundation, skirting of the outbuilding is required.


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     (e) Outbuildings must be situated on property in compliance with all front, side and rear yard
     setback requirements in the applicable zoning district. An outbuilding shall be located on a lot such
     that the entire structure is situated within the rear yard.

(Ord. No. 22-26, adopted 10-9-0l,Sec. 2)

                                                  SECTION 25

                                        RESERVED FOR FUTURE USE

                                                  SECTION 26

                                         "SUP" SPECIFIC USE PERMIT

26.1 General Provisions: The City Council by an affirmative vote may, after public hearing and proper notice
to all parties affected, and after recommendations from the Planning and Zoning Commission that the uses
are in general conformance with the Comprehensive Plan and general objectives of the City and containing
such requirements and safe guards as are necessary to protect adjoining property, authorize application
and shall be accompanied by a site plan drawn to scale and showing the general arrangement of the project,
together with essential requirements such as off-street parking facilities; size, height, construction
materials, and locations of buildings and the uses to be permitted; location and instruction of signs; means
of ingress and egress to public streets; the type of visual screening such as walls, plantings and fences; and
the relationship of the intended use to all existing properties and land uses in all directions to a minimum
distance of two hundred (200) feet. The Planning Commission or City Council may require additional
information or drawings (such as building floor plans), operating data and expert evaluation or testimony
concerning the location, function and characteristics of any building or use proposed.

26.2 Specific Use Permit Regulations:

     (a) In recommending that a Specific Use Permit for the premises under consideration be granted,
     the Planning and Zoning Commission shall determine that such uses are harmonious and adaptable to
     building structures and uses of abutting property and other property in the vicinity of the premises
     under consideration, and shall make recommendations as to requirements for the paving of streets,
     alleys and sidewalks, means of ingress and egress to public streets, provisions for drainage, adequate
     off-street parking, protective screening and open space, area or security lighting, heights of structures,
     and compatibility of buildings. The Planning and Zoning Commission and (jty Council shall consider
     the following criteria in determining the validity of the Specific Use Permit request:

           1.   The use shall be harmonious and compatible with its surrounding existing uses or
           proposed uses;

           2.     The activities requested by the applicant shall be normally associated with the requested
           use;

           3.     The nature of the use shall be reasonable; and

           4.     Any negative impact on the surrounding area shall be mitigated.

     (b) In granting a Specific Use Permit, the City Council may impose conditions which shall be
     complied with by the owner or grantee before a certificate of occupancy may be issued by the building
     official for use of the building on such property pursuant to such Specific Use Permit and such


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    conditions precedent to the granting of the certificate of occupancy. Any special conditions shall be set
    forth in writing by the City Council prior to issuance of the Certificate of Occupancy.

    (c) No Specific Use Permit shall be granted unless the applicant, owner and· grantee of the Specific
    Use Permit shall be willing to accept and agree to be bound by and comply with the written
    requirements of the Specific Use Permit, as attached to the site plan drawing (or drawings) and
    approved by the Planning and Zoning Commission and City Council.

    (d) If required, a building permit shall be applied for and secured within six (6) months from the
    time of granting the Specific Use Permit, provided however, that the City Council may authorize an
    extension of this time upon recommendation by the Planning and Zoning Commission. After six (6)
    months from the date. of approval has elapsed, the Planning and Zoning Commission and City Council
    may review the site plan for continued validity. If the site plan is determined invalid, the property
    owner(s) must submit a new or revised site plan for approval prior to any construction or application
    for building permit for the area designated for the Specific Use Permit.

     (e) A building, premise, or land used under a Specific Use Permit may be enlarged, modified,
     structurally altered, or otherwise changed provided the changes do not:

           1.   Increase the height of structures, including antenna support structures.

           2.   Increase building square footage from its size at the time the original Specific Use Permit
           was granted by greater than ten (10) percent;

           3.   Reduce the distance between a building or noise-generating activity on the property and an
           adjacent, off-site residential use. This provision shall not apply should the. property and the
           residential use be separated by a major thoroughfare depicted on the City's Thoroughfare Plan;
           or

           4.   Reduce the amount of open space as indicated on the previously approved zoning exhibit.

           All other enlargements, modifications, structural alterations, or changes shall require the
           approval of a new Specific Use Permit. Antennas may be placed on a tower with an existing
           Specific Use Permit without approval of a separate Specific Use Permit subject to approval of a
           final plat and site plan for the property.

     (f)  The Board of Adjustment shall not have jurisdiction to hear, review, reverse, or modify any
     decision, determination, or ruling with respect to the specific land use designated by any Specific Use
     Permit.

     (g) When the City Council authorizes the granting of a Specific Use Permit, except in cases where a
     Specific Use Permit is granted for a temporary building in accordance with this Ordinance, the Zoning
     Map shall be amended according to its legend to indicate that the affected area has conditional and
     limited uses, and said amendment is to indicate the appropriate zoning district for the approved use
     and prefixed by an "S" designation. Specific Use Permits granted shall be indicated by numerical
     designation on the Zoning District Map.

     (h) Upon holding a properly notified public hearing, the City Council may amend, change, or rescind
     a Specific Use Permit if:

           1.   There is a violation and conviction of any of the provisions of this Ordinance or any


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           ordinance of the City that occurs on the property for which the Specific Use Permit is granted.

           2.    The building, premise, or land used under a Specific Use Permit is enlarged, modified,
           structurally altered, or otherwise significantly changed without approval of a separate Specific
           Use Permit for such enlargement, modification, structural alteration, or change.

           3.   Violation of any provision of the terms or conditions of a Specific Use Permit.

           4.   Ad valorem taxes on the property are delinquent by more than six (6) months.

           5.   The Specific Use Permit was obtained by fraud or with deception.

26.3 Specific Use Permit for Temporary Buildings:

     (a) Temporary buildings are permitted by right for houses of worship, public schools (kindergarten
     through twelfth grade only), and other government agencies and/or political subdivisions of the State
     of Texas, subject to the conditions below. Temporary buildings are permitted by Specific Use Permit
     for private enterprises subject to the conditions below.

     (b) A permit to erect a temporary building may be issued for an initial period of up to three (3) years
     provided the applicant submits:

           1.    An application with documented evidence of an immediate need for space to the Building
           Official, who shall evaluate each application for a temporary building based on the following
           criteria:

                a.   Capacity of the existing permanent building(s), which is located or planned to be
                located on the same property for which the temporary building permit is being sought,
                compared to the enrollment, employment and/or number of people attending the existing
                permanent building(s) at one (1) time;

                 b.   Total enrollment, employment and/or membership size;

                 c.  Documentation of growth records depicting the number of people in the
                 congregation, school and/or office;

                 d.   Whether the facility is a start-up or new facility;

                 e.   Indication of alternative options that were explored before a temporary building
                 application was considered;

                 f.   Acts of nature; and/or

                 g. Any other evidence which is reasonably related to the immediate need for additional
                 space;
                       '
           2.   A preliminary site plan to the Planning Department, providing for a permanent solution to
           the immediate need for a new temporary building(s) showing the permanent building(s), the
           temporary building(s) and the required parking, which is subject to the review and approval of
           the Planning and Zoning Commission; and

           3.    A site plan for the temporary building(s) to the Planning Department, which is subject to


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          the review and approval of the Planning and Zoning Commission.

    (c)   The temporary building(s) shall be removed within thirty (30) days of the date:

          1.   A Certificate of Occupancy is issued for the permanent building; or

          2.   The permit for the temporary building expires, whichever occurs first

    (d) A request for a single extension, not to exceed twelve (12) months, ("Single Extension") of the
    temporary building permit may be granted by the Planning and Zoning Commission provided the
    applicant:

          1.   Has an approved and valid preliminary site plan for the permanent building(s) and an
          approved and valid site plan for the temporary building(s );

          2.  Has a specific plan of how an additional year would allow the applicant to construct the
          permanent building(s) by providing:

               a.   Evidence of numeric growth, beyond that which was specifically anticipated by the
               applicant;

               b.    Membership, enrollment andjor employment growth records;

               c.   Evidence that alternative options were explored before an extension of the temporary
               building permit was requested; and

               d. Any other criteria reasonably deemed appropriate by the Planning and Zoning
               Commission.

     (e) The applicant may challenge a decision of the Building Official or Planning and Zoning
     Commission by appealing, in writing, to the City Council within fourteen (14) days of a decision of the
     Building Official or the Planning and Zoning Commission. The City Council's decision is final.

     (t) Three (3) or more members of the City Council may appeal the decision of the Planning and
     Zoning Commission by submitting a written notice of appeal to the Planning Department. The City
     Council shall consider and act on whether it will appeal the Commission's decision no later than
     fourteen (14) days from the date of such decision or at its first regular meeting (for which there is
     time to post an agenda as required by law) that occurs after the Commission meeting at which the
     decision was made, whichever is later. Written notice of the City Council's vote to appeal shall be
     submitted to the Planning Department within seven (7) days of the City Council's vote. The City
     Council shall consider the appeal at a public meeting no later than forty-five (45) days after the date
     on which the notice of appeal is submitted to the Planning Department The City Council may affirm,
     modify or reverse the decision of the Planning and Zoning Commission.

     (g) If the applicant desires an extension after being granted the Single Extension, the applicant may
     request the City Council to grant such an extension provided the applicant submits to the City Council:

          1.    The information required under subsection (d)(2) above:

          2.   A detailed financial summary, including without limitation, the reasons for not complying
          with the terms of the Single Extension; and



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          3. Any other criteria that the City Council deems necessary to ensure that any further
          extension granted:

                 a.   Is not contrary to the public interest; and

                 b.   Does not impair the City's ability to carry out the administration of all applicable
                 ordinances, rules and regulations of the City.

(Ord. No. 06-41, adopted 9-26-06, Sec. 3; Ord. No.12-20, adopted 3-27-12, Sec. 2)

                                                  SECTION 27

                             PLATTING PROPERTY NOT PERMANENTLY ZONED

27.1 The Planning and Zoning Commission shall not approve any plat of any subdivision within the city
limits until the area covered by the proposed plat shall have been permanently zoned by the City Council.

27.2 The Planning and Zoning Commission shall not approve any plat or any subdivision within any area
where a petition or ordinance for annexation or a recommendation for annexation to the City is pending
before the City Council unless and until such annexation shall have been approved by the City Council.

27.3 In the event the Planning and Zoning Commission holds a hearing on proposed annexation, it may, at
its discretion, hold a contemporaneous hearing upon the permanent zoning that is to be applied to the area
or tract to be annexed. The Commission may make a recommendation on both matters to the City Council
and the City Council may, at its discretion, act contemporaneously on the matters of permanent zoning and
annexation.

                                                 SECTION 27-A

                           LANDSCAPE REGULATIONS AND TREE PRESERVATJON

A.   General Provisions.

     1.    Purpose.

           (a) Establish rules and regulations governing the protection and preservation of desired native
           or established trees within Melissa.

           (b) Encourage the protection of healthy and desirable trees and provide for the replacement
           andfor replanting of trees that are necessarily removed during construction, development or
           redevelopment.

           (c) Provide for the preservation and protection of desired larger native or established trees,
           which provide a valuable amenity to the urban environment and which, once destroyed, can only
           be replaced after generations, if at all.

           (d)   Provide for shade, windbreaks, beauty and the cooling of air.

           (e) Provide for open space and more efficient drainage of land, thereby, reducing the effects of
           soil erosion and the need for additional drainage facilities.

           (t)   Prevent the clear-cutting of land containing trees of six (6) inches caliper or larger. The



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          illegal cutting of each tree six (6) inches caliper or larger shall constitute a separate offense of
          this Ordinance.

     2.    Definitions.
           (a) "Residential Use or District'' shall mean SF-1, SF-2, SF-3 Single Family Residential Districts,
           MF Multi Family Dwelling Districts and MH Manufactured Home Park Districts.

           (b) "Non-Residential Use or Districts" shall mean C-1 and C-2 Commercial Districts, I -1 and 1-2
           Industrial Districts.

           (c) "PD Planned Development Districts'~ "Planned Development District" or "PD(s)" shall be
           Residential or Non-Residential depending on the permitted uses in the Planned Development
           District.

           (d) "Developed" or "Development" shall mean any manmade change to improved or
           unimproved real estate, including but not limited to, buildings and/or other structures, paving,
           drainage, utilities, storage andjor agricultural activities.

           (e) "Redeveloped" or "Redevelopment" shall mean any zoning change and/or manmade cha:r(lge
           or alteration to a design and/or layout of an existing deve]opment(s) including but not limited
           to, repair, expansion andjor removal and replacement of existing building and/or structure,
           paving, drainage, utilities, storage andfor agricultural activities. Property rendered non·
           conforming due to rezoning is exempt until such time as there is a change in ownership or usage.

           (f) "Developer" shall mean any person, firm, corporation or entity responsible for the ·
           development or redevelopment of property.

     3.    Applicability.
           (a) Requirements of this Ordinance shall apply to all property within the corporate limits of
           Melissa developed or redeveloped after the passage of this Ordinance. No site developed prior to
           the effective date of this Ordinance shall be required to conform to the landscaping
           requirements of this Ordinance unless the site is being redeveloped. Such property must,
           however comply with ordinances existing at the time of its development Once a "Certificate of
           Occupancy" is issued for single family, manufactured or duplex home sites, the property
           becomes exempt from the developmental landscaping provisions of this Ordinance, but must
           continue to meet the landscaping maintenance and tree preservation provisions set forth herein.

           (b) Trees less than three (3) inches caliper are exempt from the tree preservation
           requirements of this Ordinance.

B.   Landscape Requirements.
     1.   Non-Residential Districts. These standards shall apply to all Non· Residential Use or Districts. Any
     area within a planned development district containing landscaping standards shall be regulated by
     the more restrictive standards.

           (a) The minimum landscaping area for nonresidential districts shall be not less than ten (10)
           percent of the pavement area on the site. Landscaping shall include the following items as
           detailed in paragraphs (B)(1)(b), (c), (d) and (e) below:


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               (1) Landscaping along street rights-of-way;

               (2) Interior parking lot landscaping;

               (3) Landscaping for corner lots; and

               (4) Landscaping/screening for parking lots adjacent to residential areas.

               In the event that the total landscape area provided, per the requirements of paragraphs
               (B)(1)(b), (c), (d) and (e), is less than ten (10) percent of the pavement area of the site,
               additional landscaping shall be provided to meet the ten (10) percent requirement.

               Example:

               1. If (B)(1)(a)(1)-( 4) above equal fifteen (15) percent of pavement, then requirement
               for ten (10) percent of pavement is satisfied.

               2. If (B)(1)(a)(1)-(4) above equal eight (8) percent of pavement, then additional
               landscaping is required to equal ten (10) percent.

           (b) Landscaping Along Street Rights-of-Way. All commercial, industrial and other non-
           residential districts shall comply with the following street scope requirements:

               (1) A landscaped edge shall be provided adjacent to all streets. The landscaped edge shall
               be a minimum width of ten (10) feet, exclusive of street rights-of-way. Within the
               landscaped edge, a minimum of one (1) shade tree (three (30 inches caliper minimum) or
               an approved ornamental tree shall be planted per five hundred (500) square feet of
               landscaped area. The ten-foot landscaped edge may be reduced in the Restricted
               Commercial (C-1) District to no Jess than two (2) feet where lots are less than two (2)
               acres. In such case, a minimum of one (1) shade tree (three (3) inches caliper minimum) or
               an approved ornamental tree shall be planted for every fifty (50) feet of frontage on any
               public street.

               (2) Where parking lots and drives abut the landscaped edge, ten (10) shrubs (five-gallon
               minimum) shall be placed per five hundred (500) square feet of landscaped edge. The
               number of required shrubs shall be caJculated solely on the area of the required landscape
               edge. A berm may be placed within the landscaped edge in lieu of the required shrubs;
               however, a headlight screen must be accommodated if required. The berm must be forty-
               two (42) inches above the average grade of the street and parking lot curbs. The slope of
               the berm shall not exceed a 3 to 1 grade.

               (3) If the parking lot is located fifty (50) feet or more from the street right-of-way line, no
               shrubs or berms will be required unless required for a headlight screen.

               (4) The applicant is also encouraged to plant a variety of ornamental trees and flowers in
               addition to the required plantings. Any permeable surface not occupied by trees, shrubs,
               planting beds, signs or other permitted fixtures shall be planted with turf or other living
               ground cover.

               (5) The required width of landscaped edge may be reduced during plan review when
               public improvements are necessary.


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         (c) Interior Parking Lot Landscaping. Any non-residential parking area which contains more
         than twenty (20) parking spaces shall provide interior landscaping in addition to the required
         landscaped edge.

              (1) Interior landscaping shall include all areas within the paved boundaries of the parking
              lot as well as planting islands, curbed areas, corner lots, parking spaces and all interior
              driveways and aisles, except those with no parking spaces located on either side.
              Landscaped areas outside of the parking lot may not be used to meet the interior
              landscaping requirement.

              (2) There shall be eight (8) square feet of interior landscaping for each parking space
              (one hundred eighty (180) square feet) or fraction thereof.

              (3) There shall be a minimum of one (1) shade tree (three (3) inches caliper minimum) or
              an approved ornamental tree for every twenty (20) parking spaces unless approved by the
              City Council until the Director of Community Development is in place.

              (4) All landscaped areas shall be protected by a raised six-inch concrete curb. Pavement
              shall not be placed in closer than the normal mature drip line of the tree, at time of
              installation, unless a city~approved root barrier is utilized.

              (5) Where an existing parking area is altered or expanded to increase the number of
              spaces to more than twenty (20), interior landscaping shall be provided on the new portion
              of the Jot in accordance with the above standards.

              (6) The requirements listed above shall not apply to structured parking garages.

         (d) Landscaping For Corner Lots. Corner lots at the intersection of two (2) major or larger
         thoroughfares shall comply with the following landscaping requirements in addition to the
         required plantings for the landscaped edge and interior parking lot landscaping:

              (1) A minimum fifteen-foot wide landscaped edge shall be located along the street right-
              of-way beginning at the corner and extending one hundred seventy-five (175) feet or to the
              closest driveway. Beyond this point, the landscaped edge may be gradually reduced (over a
              distance of twenty-five (25) feet to ten (10) feet in width.

              (2) Where the City Council (until the Community Development Department has been
              established) determines there is a need for a right-turn lane at a location, the landscaped
              edge may be reduced to a minimum of seven and one-half (7!1) feet (See Thoroughfare
              Design Standards in the Subdivision Ordinance, as it exits or may be amended).

              (3) A minimum landscaped area of approximately nine hundred (900) square feet shall
              be located at the intersection corner of the lot. This landscaped area shall be provided
              within the area measured a minimum distance of forty (40) feet from the projected corner
              of the intersection on both sides of the lot. No trees may be planted in this area.

         (e) Landscaping/Screening for Parking Lots Adjacent to Residential Areas. Where parking is
         within fifty (SO) feet of residentially zoned property and is not screened from view by a
         screening wall, a continuous screen of shrubs (five-gallon minimum) must be placed adjacent to
         the parking. The required landscaping shall comply with the following regulations:



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                 (1) The required shrubs shall create a minimum forty-two-inch high screen at time of
                 installation.

                 (2)   Drought and freeze-resistant shrubs shall be used, including but not limited to:

                       Burford Holly

                       Chinese Holly

                       Eleagnus

                       Juniper (several varieties)

                       Nellie R. Stevens

                       Wax Myrtles

                       Yaupon Holly

                       Other plants may be used with Melissa staff approval.

           (f) All materials must meet the American Association of Nurseryman, Inc. "American Standard
           for Nursery Stock" (latest edition).

     2.    Multi-Family Districts.

           (a) A landscaped edge shall be provided adjacent to all streets. The landscaped edge shall be a
           minimum width of ten (10) feet, exclusive of street rights-of-way. Within the landscaped edge,
           one (1) shade tree, three (3) inches caliper, shall be planted per five hundred (500) square feet
           of landscaped edge. The number of required trees shall be calculated solely on the areas of the
           required landscaped edge.

           (b) Where parking lots and drives abut the landscaped edge, ten (10) shrubs (five (5) gallon
           minimum) shall be planted per five hundred (500) square feet of landscaped edge. The number
           of required trees shall be calculated solely on the area of the required landscaped edge. A berm
           may be placed within the landscaped edge in lieu of the required shrubs; however, a headlight
           screen must be accommodated if necessary. The berm must be forty-two (42) inches above the
           average grade of the street and parking lot curbs. The slope of the berm shall not exceed a 3 to 1
           grade.

           (c) The applicant is also encouraged to plant a variety of ornamental trees and seasonal color
           in addition to the required plantings. Any permanent surface not occupied by trees, shrubs,
           planting beds, signs or other permitted textures shall be planted with turf or other living ground
           cover.

           (d) If the parking lot is located fifty (50) feet or more from the street right-of-way line, no
           shrubs or berms will be required unless required for a headlight screen.

           {e) The required width of landscaped edge may be reduced during plan review when public
           improvements are necessary.

           (f)   Parking areas shall be landscaped in addition to the required landscaped edge. Eight (8)


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          square feet oflandscaping for each parking space shall be provided within the paved boundaries,
          including one (1) shade tree (three (3) inches caliper minimum) or an approved ornamental tree
          per ten (10) parking spaces.

          (g) All landscaped areas shall be protected by a raised six-inch concrete curb. Pavement shall
          not be placed closer than the normal mature drip line of the tree unless a Melissa staff approved
          root barrier is utilized.

          (h) One (1) shade tree (three (3) inches ca1iper minimum) or an approved ornamental tree per
          one thousand (1,000) square feet of required open space shall be provided.

          (i) All materials must meet the American Association of Nurseryman, Inc. "American Standard
          for Nursery Stock" (latest edition)

     3. Sin9le Family Residential Districts, MH and Duplexes. Any development that has 11.9 units per
     acre or less shall fall under this classification. Any area within a planned development district
     containing landscaping standards shall be regulated by the more restrictive standards. Residential
     lots in all zoning districts shall have a minimum of fifty (50) percent of the required front yard and
     required side yard adjacent to a side street devoted to landscaping.

          (a) A minimum of two (2) trees (three (3) inches caliper minimum) or approved ornamental
          trees, either existing or planted, is required in the combined front yard and side yard adjacent to
          a side street for each dwelling unit.

          (b) All required trees must be planted prior to request for final building inspection of the
          dwelling unit. Planting of other landscape materials may be deferred, however, up to one
          hundred eighty (180) days in case of incompatible climatic conditions. In this case, a conditional
          "Certificate of Occupancy" may, in Melissa's sole discretion, be issued.

          (c) All materials must meet the American Association of Nurseryman, Inc. "American Standard
          for Nursery Stock" (latest edition).

          (d) Landscaping in harmony with the surrounding area adequate to minimize the visual
          monotony and barrenness shall be provided in the form of at least three (3) five-gallon or six (6)
          three-gallon shrubs.

          (e) Turf, Sod or Ground Cover (living, growing material), not to exceed twelve (12) inches in
          height, which may be combined with aesthetic xeriscape landscaping which prevents soil
          erosion, shall be provided.

          (f)   Shrubs used in landscaping shall be in harmony with the surrounding area.

     4.    Non-residential, SF, duplex, MH and MF districts within PDs are subject to the respective
     restrictions described above.

C.   Landscape Maintenance Requirements. The following requirements are intended for all Single-Family,
Multi-Family, Commercial and Industrial Districts. These requirements also apply for those areas which
have a PO prefix and have an aforementioned zoning.

     1. All plant materials shall be maintained in a healthy and growing condition and must be replaced
     with plant material of similar variety and size if damaged, destroyed or removed.


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     2.   Landscaped areas shall be kept free of trash, litter, weeds and other such materials or plants not
     a part of the landscaping.

     3.  An automatic ·irrigation system must be installed in all required landscaped areas in commercial
     properties along thoroughfares.

     4.    Any person, developer or entity desiring to install and maintain landscaping materials and .
     irrigation facilities within the city right-of-way must first enter into and execute a "Median Right-of-
     Way Landscape and Irrigation Agreement."

     5.   Landscape plans shall be submitted, reviewed and approved by Melissa for entryways to
     residential subdivisions or commercial properties within city rights-of-way. This requirement also
     applies to amenity features within city rights-of-way.

     6.  Diameters of existing trees are measured at four (4) feet above grade. If the tree is on a slope,
     measure from the high side of the slope. In addition, measure above unusual swells in the trunk.

          (a) To determine the diameter of a multi-trunk tree, measure all the trunks; add the total
          diameter of the largest trunk to one-half (n) the diameter of each additional trunk. A multi-
          trunked tree is differentiated from individual trees growing from a common root stock if there is
          a visible connection between the trunks above ground.

          (b) Diameter measurements must be accurate to the nearest one-half (n) inch. This data is
          used in determination of tree significance and replacement value (if necessary).

          (c) Trees may be measured with a caliper, cruise stick, standard tape measure or diameter
          tape, all of which are available at forestry suppliers. Calipers are accurate, but difficult to handle.
          Cruise sticks are less accurate, but efficient for quick measurements. Standard tape measures are
          accurate) but require transposing from circumference to diameter. Diameter tapes are accurate
          and have the advantage of giving readings in diameter inches. End hooks and automatic recoiling
          on some models provide maximum efficiency.

D.   Landscape/Irrigation Plans.
     1.    Landscape and irrigation plans shall be submitted with all nonresidential, multi-family and
     retirement housing development submissions. Landscape/irrigation plans shall ensure proper
     location of vegetation within public rights-of-way, preserve visibility triangles, maintain the overall
     integrity and intent of living screens and promote ornamental planting within Melissa.

     2.    Submission oflandscapefirrigation plans for areas which include public rights-of-way, parks and
     greenbelts shall be made to the City Council until the following Departments are in place: Department
     of Community Development for review by Community Development, Public Works and Parks and
     Recreation. All other submissions shall be made to the City Council until the Community Development,
     Public Works and Parks and Recreation Departments are in place. The applicant shall be provided a
     landscape review checklist. Melissa staff shall evaluate the appropriateness of landscape and
     irrigation plans and may approve them or approve them subject to stipulations.

     3.   Landscape and irrigation "As Built" plans shall be submitted to Melissa for areas which include
     public rights-of-way, parks and greenbelts drawn to a suitable scale before a "Certificate of
     Occupancy" is issued.



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E.   Landscape Buffers. There shall be a twenty-five-foot root irrigated landscape buffer immediately
adjacent to U.S. 75, SH 121 and SH 5 in which no building, structure or parking shall be permitted.

F.   Tree PreseTYation and Protection.
     1.    The purpose of the following paragraphs is to establish incentives for the preservation of
     existing, healthy and protected trees within Melissa and to provide guidelines for the protection of
     trees.

     2. Applicability. The terms and provisions of the following paragraphs relating to tree preservation
     and protection apply to real property as follows.

           (a)   All vacant and undeveloped properties are the responsibility of the owner(s).

           (b) All property to be developed and redeveloped, including without limitation, any additions
           or alterations, is the responsibility of the developer or owner.

           (c) Streets in residential developments, including, without limitation, associated landscaping,
           are the responsibility of the developer until accepted by Melissa or a property andjor home
           owners association.

     3.   Preliminary Development Plans. A general survey of natural vegetation showing tree groupings
     and anticipated tree losses shall be submitted with all preliminary site plans.

     4.    Final Development Plans. The landscape plan that is required with site plans and preliminary
     plat submissions shall also include the approximate location, size (caliper and height), condition and
     common name of each tree to be preserved if the applicant is requesting tree credits.

     5.    Tree Preservation Credits. For every healthy protected tree (six (6) inches caliper or larger)
     located outside of the flood plain that is preserved, the developer shall be given credit, according to
     the following chart When interior parking lot landscaping is also required, only those trees preserved
     in the parking area shall be considered for credit for the parking area, according to the following:

           (a) Trees six (6) inches to twelve (12) inches caliper: One (1) inch credit for each one (1) inch
           preserved.

           (b) Trees twelve and one-tenths (12.1) inches to twenty-four (24) inches caliper: one and one-
           half (Hl") inches credit for each one (1) inch preserved.

           (c) Trees over twenty-four (24) inches caliper: Two (2) inches credit for each one (1) inch
           preserved.

     6.   Only trees having been protected in accordance with the guidelines for tree protection (See
     paragraph (F)(13) below) shall be considered for credit. No locus, horse apple or similar tree shall be
     preserved for credit.

     7.     Tree credits may be applied at a maximum rate of one-third (1/3) for residential and one-half
     (D.) for non-residential toward landscape and/or tree replacement.

     8.   Healthy unprotected trees, over twelve (12) inches in size, located outside the flood plain, may
     be considered for tree credits only when individually field inspected and approved by a designated



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     representative of Melissa.

     9.    Determination of credits shall be made by the Melissa engineering staff until Community
     Development staff is in place and upon completion of site improvements. Field conditions may, in
     Melissa's sole discretion, warrant submittal of a revised landscape plan to determine the number of
     tree credits. Review may include, but not be limited to, a field inspection of the site, and the plan may
     be referred to other departments or consultants for review and recommendation(s).

     10. Certain native and non-native trees are considered unprotected and will be considered exempt
     from the requirements of this Ordinance, except that a Tree Removal Permit, required herein, must be
     issued prior to removal. The following are considered unprotected trees:


Arizona Ash                                                    Franxinus velutina
Bois D'Arc [Native)                                            Madura pomifera
Chinese Tallow                                                 Sapium sebiferum
Cottonwood (Native)                                            Populus deltoids
Hackberrv(Native)                                              Celtis occidentalis
Honey Locust (Native)                                          Gleditsia triacanthos
Lombardy Poplar                                                Populus nigra italica
Mimosa                                                         Albizzia julibrissie
Mulberry                                                       Morusalba
Siberian Elm                                                   Ulmus pumila
Silver Maple                                                   Acer saccharinum
Sycamore                                                       Plantanus occidentalis
Weeping Willow                                                 Salix babylonica
Western Red Cedar                                              Thuja I>_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
                                  ARTICLE 12.300- ZONING ORDINANCE ADOPTED



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 &amp; 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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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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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 (<e) majority vote by the City Council shall be
     required for approval. A request which has been denied by the Planning and Zoning Commission
     and/or City Council may be resubmitted at any time for reconsideration by the City along with a new
     filing fee which must accompany the request. The Planning and Zoning Commission and/or City
     Council may specifically deny any request with or without prejudice. If a request has been specifically



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                                    ARTICLE 12.300 ·ZONING ORDINANCE ADOPTED



        denied with prejudice, the request may not be resubmitted to the City for six (6) months from the
  ·~.   original date of denial.

        (c) Council Hearing and Notice: Required notice of City Council hearing shall be given by publication
        in the official newspaper of the city, stating the time and place of such hearing, which shall be at least
        fifteen (15) days after the date of publication.

        (d) Three-Fourths Vote: A favorable vote of three-fourths (ce) of all members of the City Council
        shall be required to approve any change in zoning when written objections are received by owners of
        twenty (20) percent or more of the area of the lots or land covered by the proposed change or such
        area within two hundred (200) feet of the property which a zoning change is being contemplated. If a
        protest against such proposed amendment, supplement. or change has been filed with the City
        Secretary, duly signed and acknowledged by the owners of twenty (20) percent or more of the area of
        the lots or land included in such a proposed change or the lots or land immediately adjoining the same
        and extending two hundred (200) feet therefrom (measured without regard to city streets or other
        public right of way), such zoning change or amendments shall not become effective except by a three·
        fourths (re) vote of the City Council.

33.6 Final Approval and Ordinance Adoption: Following the hearing on the zoning request by the City
Council, the applicant shall submit a metes and bounds description to the City within thirty (30) days for
the preparation of the amending ordinance. The amending ordinance shall be approved within six (6)
months of the zoning request.

                                                    SECTION 34

                                 PRESERVING RIGHTS IN PENDING LITIGATION

By the passage of this ordinance, no presently illegal use shall be deemed to have been legalized unless
such use specifically fal1s within a use district where the actual use is a conforming use. Otherwise, such
uses shall remain nonconforming uses where recognized, or an illegal use, as the case may be. It is further
the intent and declared purpose of this ordinance that no offense committed and no liability, penalty or
forfeiture, either civil or criminal, incurred prior to the time the existing zoning ordinance was amended in
its entirety by this ordinance, shall be discharged or affected by such repeal; but prosecution and suits for
such offenses, liabilities, penalties, or forfeitures may be instituted or causes presently pending may be
proceeded with in all respects as if such prior ordinance had not been amended.

                                                    SECTION 35

                                            PENALTY FOR VIOLATIONS

Any person or corporation violating any of the provisions of this ordinance shall upon conviction be fined
the sum of two thousand dollars ($2,000.00) per day; and each and every day that the provisions of this
ordinance are violated shall constitute a separate and distinct offense. In addition to the said penalty
provided for, the right is hereby conferred and extended upon any property owner owning property in any
district where such property owner may be affected or invaded by a violation of the terms of the ordinance
to bring suit in such court or courts having jurisdiction thereof and obtain such remedies as may be
available at law and equity in the protection of the rights of such property owners.

                                                    SECTION 36

                                     VALIDITY. SEVERANCE AND CONFLICTS


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                                            ARTICLE 12.300- ZONING ORDINANCE ADOPTED



If any section, paragraph, subdivision, clause, phrase or provision of this ordinance shall be adjudged
invalid or held unconstitutional, the same shall be served from and shall not affect the validity of this
ordinance as a whole or any part or provision thereof other than: the part so dedicated to be invalid or
unconstitutional. It is intended that this ordinance entirely replace and supersede all provisions of the
existing :zoning ordinance, of the City of Melissa, Texas, as amended. To the extent any provision of this
ordinance conflicts with other ordinances of the City of Melissa the terms of this ordinance shall control.

PASSED and APPROVED by the City Council of the City of Melissa, Texas on this the 25th day of August,
1992.
APPROVED:



Mayor

ATTEST:



City Secretary


        (61J   State Law reference- Zoning authority, V.T.C.A., Local Government Code, ch. 211 (Back)




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