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HomeMy WebLinkAbout2023-08-07 H01 Zoning Ordinance, Definitions_PH AGENDA ITEM: CITY OF WAUKEE, IOWA CITY COUNCIL MEETING COMMUNICATION MEETING DATE: August 7, 2023 AGENDA ITEM: Public Hearing on an Ordinance to amend Chapter 165, Zoning Regulations, Definitions and General Regulations, by amending Section 165.02 Definitions FORMAT: Public Hearing SYNOPSIS INCLUDING PRO & CON: The City received a letter from the ACLU related to a specific definition of “Adult Cabaret” as defined within the current Zoning Definitions chapter of the City Code. Adult Cabaret is currently defined as “a cabaret which features go-go dancers, exotic dancers, strippers, male or female impersonators or similar entertainers.” Specifically, the ACLU has concerns with including male or female impersonators as they believe the inclusion to be unconstitutional as the definition would prohibit drag performances, characters within plays being played by the opposite sex, etc. City staff and the City Attorney do not agree with the ACLU’s interpretation on two specific points. 1. This definition does not outright prohibit the location of an Adult Cabaret within City limits but rather restricts such uses to specific zoning districts within the City (M-1A and M-2). 2. The definition of Adult Cabaret is used within the context of the zoning ordinance as an example of an adult entertainment business, which is defined as display of specified sexual activities or specified anatomical areas. Simply stated, as long as a show or performance which may include male or female impersonators without the display of specified sexual activities or specified anatomical areas (nudity), it would be permitted throughout the City. Regardless, this provides the City with the opportunity to review all definitions as included within the Adult Entertainment Business section of the City’s zoning ordinance and staff believes this provides for an opportunity clean up and modernize a section of the City’s zoning ordinance which has not been touched in over 20 years. The proposed ordinance would replace all current definitions within the existing code as it pertains to Adult Entertainment Businesses. Staff has consolidated a number of definitions which has allowed for the examples provided for Adult Entertainment businesses to be reduced from 12 down to six. Additionally, the specific definition of “Adult Cabaret” has been H1 eliminated in favor of a more generalized definition of “Sexual Encounter Center”. Finally, the current ordinance included the definitions for “Massage” and “Massage Establishment” under the heading of “Adult Entertainment Business”. Staff felt these definitions were more appropriate within the main context of the Zoning Definitions Chapter and not as subtext to “Adult Entertainment Business”. The City Attorney has reviewed the proposed ordinance and believes the changes will continue to provide assurance that adult entertainment businesses are regulated within the context of specific zoning districts as they are currently today while at the same time addresses the concern that has been stated by the ACLU. FISCAL IMPACT INCLUDING COST/BENEFIT ANALYSIS: COMMISSION/BOARD/COMMITTEE COMMENT: The Planning and Zoning Commission reviewed the proposed Ordinance at their meeting on July 25, 2023 and recommended approval: Approval of an ordinance to amend Chapter 165, Zoning Regulations, Definitions and General Regulations Community Development Director, Andy Kass, introduced the request for approval of an ordinance to amend Chapter 165, Zoning Regulations, Definitions and General Regulations. The amendment is based on a letter the city received from the ACLU, related to a specific definition of “Adult Cabaret” as defined within the current zoning definitions. The term “Adult Cabaret” is currently defined with the City Code as “a cabaret which features go-go dancers, exotic dancers, strippers, male or female impersonators or similar entertainers.” The ACLU expressed concern that including male or female impersonators as they believe the inclusion to be unconstitutional as it would prohibit drag shows throughout the city. City staff and the City Attorney do not agree with the ACLU’s interpretation on two specific points: 1. This definition does not outright prohibit the location of an Adult Cabaret within City limits but rather restricts such uses to specific zoning districts within the city (M-1A and M-2). 2. The definition of Adult Cabaret is used within the context of the zoning ordinance as an example of an adult entertainment business which is defined as display of specified sexual activities or specified anatomical areas. Simply stated, as long as a show which would include male or female impersonators without the display of specified sexual activities or specified anatomical areas (nudity), it would be permitted in other commercially zoned areas of the city. Regardless, this notice has given the city the opportunity to review all definitions as included within the Adult Entertainment Business section of the City’s zoning ordinance and staff believes this is an opportunity to clean up and modernized a section of the City’s zoning ordinance which has not been touched in over 20 years. The proposed ordinance would replace all current definitions within the existing code as it pertains to Adult Entertainment Businesses. Staff has consolidated a number of definitions which has allowed for the examples provided for Adult Entertainment Businesses to be reduced from 12 down to six. Additionally, the specific definition of “Adult Cabaret” has been eliminated in favor of a more generalized definition of “Sexual Encounter Center”. Finally, the current ordinance includes the definitions for “Massage” and “Massage Establishment” under the heading of “Adult Entertainment Business”. Staff felt these definitions were more appropriate within the main context of the Zoning Definitions Chapter and not as subtext to “Adult Entertainment Business”. The City Attorney has reviewed the proposed ordinance and believes the proposed changes will continue to provide assurance that adult entertainment businesses are still regulated within the context of specific zoning districts while at the same time addressing the concern that has been stated by the ACLU. Staff recommends approval of the ordinance to amend Chapter 165, Zoning Regulations, Definitions and General Regulations. Questions/Discussion as follows: • Commissioner Tessau: Will there be a radius restriction for shows near schools, churches, libraries, etc.? • Mr. Kass: No. As long as it is not meeting the definition of a sexual encounter center. • Commissioner Streit: The hosting business would be zoned appropriately for that correct? • Mr. Kass: Yes • Commissioner Tessau: Would there be an age requirement? • Mr. Kass: The business would regulate that. The existing code doesn’t necessarily regulate that; as long as it’s not being classified as a sexual encounter center, it doesn’t have to be in the M-1A & M-2 districts; if it is, then it falls under the restriction, which is limited to the M-1A & M-2 districts. • Commissioner Broderick: Are there a number of adjacent communities with similar issues or what prompted this? • Mr. Kass: Other communities may have been contacted but there wasn’t a specific incident. • Commissioner Tessau: It’s confusing because it’s already allowed; why is this necessary? • Mr. Kass: To address the differentiation between how it can be interpreted that we are prohibiting the ability to have a drag show. • Commissioner Koelker: So, there wasn’t a specific Waukee event that triggered this? • Mr. Kass: No • Commissioner Bankole: Has the massage businesses ever had a problem? • Mr. Kass: No • Commissioner Streit: To summarize, we are strictly adjusting the definition? • Mr. Kass: Yes. We are consolidating 12 categories, which will be consolidated down to six. We will be removing Adult Cabaret as a definition and replacing with Sexual Encounter Center; clearing up what could be a misinterpretation. • Commissioner Tessau: Has a radius restriction been contemplated? • Mr. Kass: No • Commissioner Tessau: How will it be monitored/regulated? • Mr. Kass: If an event meets the definition, it will be regulated by the requirements of the code, and a special use permit approved by City Council. • Commissioner Koelker: Do you have to be considered a Sexual Encounter Center to host a drag show? • Mr. Kass: No. The purpose of the amendment is to eliminate the term “Adult Cabaret” and replace with “Sexual Encounter Center” to clear up to what could be misinterpreted as the City not allowing drag shows. • Commissioner Tessau: Who determines what the display of specified sexual activities or specified anatomical areas means? • Mr. Kass: That is governed by City Code. • Citizen: Rachel Prohaska, 1199 90th Street: If this is allowed, it has the potential to divide the community and she doesn’t feel it belongs in the community • Commissioner Koelker: Adult Entertainment is already in the city code; this change is more or less addressing the wording in our code and updating it? • Mr. Kass: Yes • Commissioner Tessau: Is it allowing more flexibility? • Mr. Kass: It is simply updating our code to avoid misinterpretation. • Commissioner Streit: The ACLU insinuated that we are not allowing certain things and we are adjusting our definitions to avoid future issues? • Mr. Kass: Yes • Commissioner Bankole: There have been no instances of this? • Mr. Kass: No • Commissioner Streit: The intent is to adjust the definition and avoid future issues? • Commissioner Tessau: It will be permitted in other zoned areas of the city? • Commissioner Streit: You can have a drag show anywhere as long as they are fully clothed? • Mr. Kass: As long as it does not meet the definition of an adult entertainment business; if it does, they would be limited to the specific zones where it is permitted and go through the special use permit process. • Commissioner Tessau: I would be less concerned about bars but more so schools, libraries, and their proximity, which could be requested via special use permit? • Mr. Kass: Yes • Commissioner Streit: Has (City) Council had conversations about this? • Mr. Kass: Yes, the council is aware of the ACLU letter, and this has been a work session item. City staff was directed to proceed with the amendment. • Commissioner Streit: Any other concerns beyond the definition changes? • Mr. Kass: No, not to my knowledge • Mr. Broderick: When we look at the zoning map, the areas are quite limited, correct? • Mr. Kass: Yes. I don’t believe we have anyone zoned M-2 and the other area is very limited. Commissioner Streit moved to approve approval of an ordinance to amend Chapter 165, Zoning Regulations, Definitions and General Regulations subject to any remaining staff comments and review of the legal documents. The motion was seconded by Commissioner Broderick. Ayes: Koelker, Broderick, Streit, Lohse and Bankole. Nays: Tessau. Motion carried. STAFF REVIEW AND COMMENT: RECOMMENDATION: Staff would recommend holding the public hearing ATTACHMENTS: I. Proposed Ordinance II. Existing Zoning Definitions PREPARED BY: Brad Deets, City Administrator REVIEWED BY: 1 ORDINANCE NO. AN ORDINANCE TO AMEND CHAPTER 165, ZONING REGULATIONS, DEFINITIONS AND GENERAL REGULATIONS BE IT ORDAINED by the City Council of the City of Waukee: Section 1. Chapter 165, Waukee Municipal Code, Zoning Regulations, Definitions and General Regulations, is hereby amended by repealing Section 165.02(4) and inserting the following in lieu of. 4. “Adult entertainment business” means a place or business that displays, or otherwise offers to its visitors or patrons specified sexual activities or specified anatomical areas and includes any of the following: A. “Adult book store” means an establishment or business having a substantial part of its stock in trade, books, magazines, photographs, pictures, videos, and other periodicals that are distinguished or characterized by their emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas, as defined herein. B. “Adult motel” means a motel wherein material is presented which is distinguished or characterized by an emphasis on depicting or describing specified sexual activities or specified anatomical areas. C. “Adult motion picture arcade” means any place to which the public is permitted or invited wherein coin or slug operated or electronically, electrically or mechanically controlled still or motion picture machines, projectors, or other image producing devices are maintained to show images to five or fewer persons per machine at any one time, and where the images so displayed are distinguished or characterized by an emphasis on matter depicting or describing specified sexual activities or specified anatomical areas. D. “Adult motion picture theater” means an enclosed building used for presenting material distinguished or characterized by an emphasis on matter depicting or describing specified sexual activities or specified anatomical areas for observation by patrons therein. E. “Adult nightclub” means any club, cabaret, nightclub, bar, restaurant or similar establishment where an enclosed building or open air facility is used for live performances which are characterized by the exposure of specified sexual activities or specified anatomical areas, as defined herein. F. “Sexual encounter center” means a place provided by any business, agency or person where, for any form of consideration or gratuity, persons who are not all members of the same household, may congregate, assemble or associate for the purpose of engaging in specified sexual activities or exposing specified anatomical areas, as defined herein. 2 G. “Specified anatomical areas” includes the following: human genitals, pubic region, buttocks, and female breasts below a point immediately above the top of the areola. H. “Specified sexual activities” means any sexual contact, actual or simulated, either natural or deviate, between two or more persons, or between a person and an animal, by penetration of the penis into the vagina or anus, or by contact between the mouth or tongue and genitalia or anus, or by contact between a finger of one person and the genitalia of another person or by use of artificial sexual organs or substitute therefor in contact with the genitalia or anus. I. “Substantial” means more than 25 percent of the book, magazine, film or video tape inventory is distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas. Section 2. Chapter 165, Waukee Municipal Code, Zoning Regulations, Definitions and General Regulations, is hereby amended by inserting the following into Section 165.02(68) and Section 165.02(69) and renumbering the remaining definitions as 70 through 100. 68. “Massage” means any method of treating the external parts of the human body by rubbing, stroking, kneading, tapping or vibrating with the hand, other parts of the body, or any instrument, for any consideration or gratuity. 69. “Massage establishment” means any establishment having a fixed place of business where massages are administered for any form of consideration or gratuity, including, but not limited to, massage parlors, health clubs, sauna baths, and steam baths. This definition shall not be construed to include an establishment employing: (i) persons licensed by the State of Iowa under the provisions of Chapters 148, 148A, 148B, 151, 152, 157 or 158 of the Code of Iowa, when performing massage services as a part of the profession or trade for which licensed; (ii) persons performing massage therapy or massage services under the direction of a person licensed as described in (i) above; (iii) persons performing massage therapy or massage services upon a person pursuant to the written instruction or order of a licensed physician; (iv) nurses, aides, technicians and attendants at any hospital or health care facility licensed pursuant to Chapter 135B, 135C or 145A of the Code of Iowa, in the course of their employment and under the supervision of the administrator thereof or of a person licensed as described in (i) above; (v) an athletic coach or trainer in any accredited public or private secondary school, junior college, college or university, or employed by a professional or semi-professional athletic team or organization, in the course of his or her employment as such coach or trainer. This definition shall not be construed to include a volunteer fire department, a volunteer rescue squad or a nonprofit organization operating a community center, swimming pool, tennis court, or other educational, cultural, or recreational and athletic facilities, and facilities for the welfare of the residents of the area. Section 3. Repealer. All ordinances or parts of ordinances in conflict with the provisions of this ordinance are hereby repealed. Section 4. Severability Clause. If any section, provision or part of this ordinance shall be adjudged invalid or unconstitutional, such adjudication shall not affect the validity of the 3 ordinance as a whole or any section, provisions or part thereof not adjudged invalid or unconstitutional. Section 5. Effective Date. This ordinance shall be in effect from and after its final passage, approval and publication as provided by law. Passed by the Council this ___ day of _________, 2023, and approved this ___ day of __________, 2023. Courtney Clarke, Mayor Attest: Rebecca D. Schuett, City Clerk 165.02 DEFINITIONS. For the purpose of these zoning regulations, certain terms and words are hereby defined. The words “used” and “occupied” include the words “intended, designed, or arranged to be used or occupied,” and the word “lot” includes the words “plot or parcel.” 1. “Accessory use or structure” means a use or structure subordinate to the principal use of another building on the lot or site with, and serving a purpose customarily incidental to, the use of the principal building. 2. “Administrative official” means the City official or his or her designee appointed by the Council to administer these zoning regulations. Administrative official and Zoning Administrator shall mean the same thing. 3. “Adult,” as used in these zoning regulations, refers to a person who has attained the age of 18 years. 4. “Adult entertainment business” means a business that, as a part of or in the process of delivering goods and services, displays to its patrons specified sexual activities or specified anatomical areas in printed form or through any form of photographic medium or by use of male or female models. In reference to adult entertainment businesses, the following definitions apply: A. “Adult art studio” or “adult modeling studio” means an establishment or business that provides the services of modeling for the purpose of viewing and/or reproducing the human body wholly or partially in the nude by means of photography, painting, sketching, drawing, or otherwise. Entrance to such establishment and such services are available only to adults. B. “Adult artist - body painting studio” means an establishment or business that provides the services of applying paint or other substance whether transparent or nontransparent to or on the human body when such body is wholly or partially nude. Entrance to such establishment and such services are available only to adults. C. “Adult bath house” means an establishment or business that provides the services of baths of all kinds, including all forms and methods of hydrotherapy, and not including such services provided by a medical practitioner or professional physical therapist licensed by the State of Iowa. Entrance to such establishment and such services are available only to adults. D. “Adult book store” means an establishment or business having a substantial part of its stock in trade, books, magazines, photographs, pictures and other periodicals that are distinguished or characterized by their emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas, as defined herein, and limited in sale of such sexual materials to adults. E. “Adult cabaret” means a cabaret which features go-go dancers, exotic dancers, strippers, male or female impersonators, or similar entertainers. F. “Adult mini-motion picture theater” means an enclosed building with a capacity for less than 50 persons which is used for presenting motion pictures, slides, or photographic reproductions distinguished or characterized by an emphasis on matters depicting, describing or relating to specified sexual activities or specified anatomical areas, as defined herein, for observation by patrons therein. G. “Adult motel” means a motel wherein material is presented which is distinguished or characterized by an emphasis on depicting or describing specified sexual activities or specified anatomical areas. H. “Adult motion picture arcade” means any place to which the public is permitted or invited wherein coin or slug operated or electronically, electrically or mechanically controlled still or motion picture machines, projectors, or other image producing devices are maintained to show images to five or fewer persons per machine at any one time, and where the images so displayed are distinguished or characterized by an emphasis on matter depicting or describing specified sexual activities or specified anatomical areas. I. “Adult motion picture theater” means an enclosed building used for presenting material distinguished or characterized by an emphasis on matter depicting or describing specified sexual activities or specified anatomical areas for observation by patrons therein. J. “Massage” means any method of treating the external parts of the human body by rubbing, stroking, kneading, tapping or vibrating with the hand, other parts of the body, or any instrument, for any consideration or gratuity. K. “Massage establishment” means any establishment having a fixed place of business where massages are administered for any form of consideration or gratuity, including, but not limited to, massage parlors, health clubs, sauna baths, and steam baths. This definition shall not be construed to include an establishment employing: (i) persons licensed by the State of Iowa under the provisions of Chapters 148, 148A, 148B, 151, 152, 157 or 158 of the Code of Iowa, when performing massage services as a part of the profession or trade for which licensed; (ii) persons performing massage therapy or massage services under the direction of a person licensed as described in (i) above; (iii) persons performing massage therapy or massage services upon a person pursuant to the written instruction or order of a licensed physician; (iv) nurses, aides, technicians and attendants at any hospital or health care facility licensed pursuant to Chapter 135B, 135C or 145A of the Code of Iowa, in the course of their employment and under the supervision of the administrator thereof or of a person licensed as described in (i) above; (v) an athletic coach or trainer in any accredited public or private secondary school, junior college, college or university, or employed by a professional or semi-professional athletic team or organization, in the course of his or her employment as such coach or trainer. This definition shall not be construed to include a volunteer fire department, a volunteer rescue squad or a nonprofit organization operating a community center, swimming pool, tennis court, or other educational, cultural, or recreational and athletic facilities, and facilities for the welfare of the residents of the area. L. “Model” means any person who, for consideration or gratuity, appears either nude or seminude to be either viewed, photographed, sketched, drawn, sculptured; to dance; to provide reading or counseling sessions; for body painting; to deliver a service or other activities in connection with the sale of merchandise; or to present materials distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas. M. “Model studio” means any establishment where, for any form of consideration or gratuity, models who display specified anatomical areas are provided to be observed, or, subject to lawful tactile conduct, sketched, drawn, painted, sculptured, photographed, or similarly depicted by persons paying such consideration or gratuity, or where, for any form of consideration or gratuity, nude or seminude dancing, readings, counseling sessions, body painting and other activities that present materials distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas are provided for observation by or communication to persons paying such consideration or gratuity. N. “Nude encounter parlor” means an establishment having a fixed place of business where any person therein engages in, conducts, or carries on, or permits to be engaged in, conducted or carried on, any business of viewing any person or persons or the actual encounter of any person or persons depicting, describing or relating to specified sexual activities as defined herein. O. “Nude photographic parlor” means an establishment having a fixed place of business where any person, association, firm or corporation therein engages in, conducts, or carries on, or permits to be engaged in, conducted or carried on any business of photographing any person or persons depicting, describing or relating to specified sexual activities or specified anatomical areas, as defined herein. P. “Specified anatomical areas” includes the following: human genitals, pubic region, buttocks, and female breasts below a point immediately above the top of the areola. Q. “Specified sexual activities” means any sexual contact, actual or simulated, either natural or deviate, between two or more persons, or between a person and an animal, by penetration of the penis into the vagina or anus, or by contact between the mouth or tongue and genitalia or anus, or by contact between a finger of one person and the genitalia of another person or by use of artificial sexual organs or substitute therefor in contact with the genitalia or anus. R. “Substantial” means more than 25 percent of the book, magazine, film or video tape inventory is distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas. 5. “Agriculture” means the use of land for purposes of growing the usual farm products, including vegetables, fruit, trees and grains; pasturage; dairying; animal and poultry husbandry; and the necessary accessory uses for treating or storing the produce, provided that the operation of such accessory uses is secondary to that of the regular agricultural activities. 6. “Alley” means a public way, other than a street, 20 feet or less in width affording secondary means of access to abutting property. 7. “Assisted living residential facility” means a building consisting of individual dwelling units where means and assistance for daily living activities are provided for residents, who are primarily elderly persons. Such facility must be licensed as a residential care facility or skilled nursing facility under Chapter 135C of the Code of Iowa. 8. “Automobile wrecking” means the dismantling or wrecking of motor vehicles or trailers, or the storage, sale or dumping of dismantled or wrecked vehicles or their parts. The presence on any lot, parcel or tract of land, of three or more vehicles that, for a period exceeding 30 days, have not been capable of operating under their own power, and from which parts have been removed or are to be removed for reuse, salvage, or sale, shall constitute prima facie evidence of an automobile wrecking yard. 9. “Balcony” means a platform that projects from the wall of a building and is surrounded by a railing or balustrade. A balcony can be covered or uncovered and enclosed or unenclosed. 10. “Basement” means a story having part, but not more than one-half of its height below grade. A basement is counted as a story for the purpose of height regulation. 11. “Bed and breakfast home” means a private single-family residence that provides lodging and meals for guests, in which the host and/or hostess resides and in which no more than three guest families are lodged at the same time; and which, while it may advertise and accept reservations, does not hold itself out to the public to be a restaurant, hotel or motel, does not require reservations, and serves food only to overnight guests. 12. “Board” means the Board of Adjustment of the City. 13. “Boarding house” means a building other than a hotel or motel where, for compensation, meals, or lodging and meals are provided for four or more persons. 14. “Buffer zone” means an area of land used to visibly separate one use from another or to shield or block noise, lights, or other nuisances. 15. “Building” means any structure designed or intended for the support, enclosure, shelter or protection of persons, animals or property, but not including signs or billboards. 16. “Building, height of” means the vertical distance from the average finished grade at the building line to the highest point of the coping of a flat roof, or to the deck line of a mansard roof, or to the average height of the highest gable of a pitch or hip roof. (See Section 165.20 of these zoning regulations for illustrations.) 17. “Building line” means the outer boundary of a building established by the location of its exterior walls or any projections other than steps, unenclosed balconies, or unenclosed porches. 18. “Building, temporary” means a building that is not permanently affixed to the property, and is permitted to exist for a specific reason for no more than two years. 19. “Bulk stations” means distributing stations, commonly known as bulk or tank stations, used for the storage and distribution of flammable liquids or liquefied petroleum products, where the aggregate capacity of all storage tanks is more than 12,000 gallons. 20. “Brewpub” means a restaurant that brews ales, beers and similar beverages on site for either consumption on premises or offsite in hand capped or sealed containers in quantities up to one-half barrel or 15.5 gallons sold directly to the consumer. 21. “Café” means an informal establishment engaged in the preparation of food and beverages for consumption on premises that may or may not have an outdoor seating area. 22. “Carport” means a roofed structure providing space for the parking of motor vehicles and enclosed on not more than two sides. For the purpose of these zoning regulations, a carport attached to a principal building is considered as part of the principal building and subject to all yard requirements of these zoning regulations. 23. “Cellar” means that portion of a building having more than one-half of its height below grade. A cellar is not included in computing the number of stories for the purpose of height measurement. 24. “Clinic, medical or dental” means a building or buildings in which physicians, dentists, or physicians and dentists, and allied professionals are associated for the purpose of carrying on their profession. 25. “Commission” means the Planning and Zoning Commission of the City. 26. “Consumer fireworks” means first-class consumer fireworks and second-class consumer fireworks as set forth under Chapter 100 of the Code of Iowa. 27. “Consumer fireworks sales” means an establishment used for the retail display and sale of consumer fireworks. For the purposes of the Zoning Ordinance, a retail operation in which less than 50 percent of the retail floor space is devoted to the sale or display of second- class consumer fireworks shall not be considered a consumer fireworks sales use. 28. “Convenience store” means an establishment for retail sale of petroleum products and other supplies for motor vehicles, as well as for the retail sale of a variety of other items typically sold in grocery stores but not including the repair or sale of vehicles. 29. “Day nursery” or “nursery school” means any private or public agency, institution, establishment, or place that provides supplemental parental care and/or educational work, other than lodging overnight, for six or more unrelated children of the owners or operators, of preschool age, for compensation. 30. “Display fireworks sales” means an establishment used for the manufacturing, storage or distribution of any firework classified as a 1.3G Firework by the American Pyrotechnics Association. 31. “Distillery” means a place where alcoholic beverages (whiskey, vodka, gin, etc.) are produced typically in small quantities. 32. “District” means a section or sections of the City within which the regulations governing the use of buildings and premises or the height and area of buildings and premises are uniform. 33. “Driveway” means a permanently surfaced area providing vehicular access between a street and an off-street parking or loading area. 34. “Dwelling” means any stationary, permanent building, or portion thereof, which is designed or used exclusively for residential purposes, but not including a tent, cabin, trailer or mobile home. 35. “Dwelling, condominium” means a multiple dwelling as defined herein whereby the title to each dwelling unit is held in separate ownership, and the real estate on which the units are located is held in common ownership solely by the owners of the units with each owner having an undivided interest in the common real estate. 36. “Dwelling, multiple” means a residence designed for or occupied by three or more families, with separate housekeeping, bathroom, and cooking facilities for each. 37. “Dwelling, row” means any one of three or more attached dwellings in a continuous row, each such dwelling designed and erected as a unit on a separate lot and separated from one another by an approved wall or walls, and is also referred to as a “townhouse.” 38. “Dwelling, single-family” means a detached residence designed for or occupied by one family only. 39. “Dwelling, single-family, split foyer” means a dwelling in which living space is on two levels with a foyer between the two levels. 40. “Dwelling, single-family, split level” means a dwelling having living space on three or more levels, no part of which is more than two stories in height, and in which each successive level is less than a full story higher than the next. 41. “Dwelling, townhouse” means a dwelling unit which is detached or attached horizontally, and not vertically, to one or more other dwelling units, wherein the land or lot beneath each dwelling, may be individually owned by the owner of the dwelling. A townhouse subdivision shall have common elements, which are specified in or determined under the rules and regulations set forth by recorded covenants. Covenants for townhouse subdivision shall establish the guidelines for maintenance of common elements and permit free movement through common areas by member of the homeowners association to assure access to the structural exterior of each townhouse unit by the individual owner. 42. “Dwelling, two-family” means a residence designed for or occupied by two families only, with separate housekeeping, bathroom, and cooking facilities for each. 43. “Dwelling unit” means a room or group of rooms arranged, designed, or used as living quarters for the occupancy of one family and containing bathroom and kitchen facilities. 44. “Family” means a person living alone or in a group living as a single nonprofit housekeeping unit and sharing common living, sleeping, cooking and eating facilities up to a maximum occupant dwelling load as provided in Chapter 169 of this title. For the purposes of this definition, anyone who spends more than 90 nights within a 12 month period will be counted as an occupant. The definition of family does not include and is not intended to provide an exclusion for any of the following: More than eight people who are: (1) Residents of a “family home” as defined in section 414.22 of the Code of Iowa;” or (2) “Handicap” as defined in the Fair Housing Act, 42 USC Section 3602(h). Any group of individuals who are in a group living arrangement as a result of criminal offenses; Any group of individuals whose association is temporary, seasonal in nature or limited to the duration of an educational school year cycle; Any society, club, fraternity, sorority, association, lodge or like organization. 45. “Feed lot” means any parcel of land or premises on which the principal use is the concentrated feeding within a confined area of livestock. Livestock includes cattle, horses, sheep, swine, poultry, goats, rabbits, and any other animals or fowl that are being produced primarily for use as food or food products for human consumption, or for laboratory or testing purposes. The feed lot does not include areas that are used for the raising of crops or other vegetation, and upon which livestock are allowed to graze or feed. 46. “Fences, walls and hedges” means decorative and/or enclosing devices used along boundary lines of lots. Fences, walls, and hedges may be constructed up to the lot line in accordance with the height rules set out in these zoning regulations. 47. “Garage, private” means an accessory building or an accessory portion of the main building, designed and/or used for the shelter or storage of vehicles owned or operated by the occupants of the principal building. A private garage, of less than four-car capacity, may be rented for the private vehicles of persons not resident on the premises. 48. “Garage, public” means a structure, other than a private garage, used for the shelter or storage of motor powered vehicles and in which the care, minor servicing, and washing are accessory to the principal use. 49. “Grade” means the average elevation of the finished ground at the exterior walls of structures. 50. “Home occupation” means a business, profession, occupation, or trade conducted for gain or support entirely within a residential building, or a structure accessory thereto, which is incidental and secondary to the use of such building for dwelling purposes and which does not change the essential residential character of such building. 51. “Hotel/motel” means a building or buildings in which lodging is provided and offered to the public for compensation, and which is open to transient guests, in contradistinction to a boarding house or rooming house. 52. “Junk” means old and dilapidated automobiles, trucks, tractors, and other such vehicles and parts thereof, wagons and other kinds of vehicles and parts thereof, scrap, used building material, scrap contractors’ equipment, tanks, casks, cans, barrels, boxes, drums, piping, bottles, glass, old iron, machinery, rags, paper, excelsior, hair, mattresses, beds, or bedding or any other kind of scrap or waste material which is stored, kept, handled, or displayed for barter, resale, reuse, salvage, stripping, or trade. 53. “Junkyard” means any area where junk is bought, sold, exchanged, baled or packed, disassembled or handled, including house wrecking yards, used lumber yards and places or yards for storage of salvaged house wrecking or structural steel materials and equipment; but not including areas where such uses are conducted entirely within a completely enclosed building, and not including the processing of used, discarded or salvaged materials necessary as a part of manufacturing operations. The presence on any property of four or more motor vehicles (as defined by Section 321.1 of the Code of Iowa) without current registration which for a period exceeding 30 days have not been capable of operating under their own power, and/or from which parts have been removed for re-use, salvage, or sale, shall constitute prima facie evidence of a junk yard. 54. “Interior self-storage” means a building containing varying sizes of individualized compartmentalized, and controlled stalls or lockers for the storage of customers’ goods or wares, excluding explosive or flammable materials, and other noxious or dangerous materials, which shall only be accessed from the interior of the building with not individual unit doors being visible from adjoining properties. 55. “Kennel” means the keeping of any dogs, cats, or other household pets of mammal group regardless of number, for sale, breeding, boarding or treatment purposes, except in an animal hospital, veterinary clinic, or pet shop, as may be permitted by law, or the keeping of more than one dog or cat on vacant property or on property used for business or commercial purposes, shall constitute a kennel. The keeping of not more than three dogs and three cats in a residential district shall not be deemed to be a kennel, unless kept for sale, breeding, boarding or treatment purposes. Any person keeping more than three dogs and three cats in a residential district on the effective date hereof (September 10, 2001), licensed as required by ordinance, may continue to keep such dogs or cats during the pet’s lifetime. 56. “Living space” means that part of the building which is enclosed and supported upon the main foundation system of the structure excluding garage and cellar. 57. “Lodging or rooming house” means a building where a room or rooms are provided for compensation for four or more persons. 58. “Lot,” for the purpose of these zoning regulations, is a parcel of land of at least sufficient size to meet minimum zoning requirements for use, coverage, and area, and to provide such yards and other open spaces as are herein required. Such lot shall have frontage on an improved public street, or on an approved private street, and may consist of: A. A single lot of record; B. A portion of a lot of record; C. A combination of complete lots of record, of complete lots of record and portions of lots of record, or of portions of lots of record; or D. A parcel of land described by metes and bounds; provided, that in no case of division or combination shall any residual lot or parcel be created which does not meet the requirements of these zoning regulations. 59. “Lot, corner” means a lot abutting upon two or more streets at their intersection. 60. “Lot, depth” means the mean horizontal distance between the front and rear lot lines. 61. “Lot, double frontage” means a lot having a frontage on two nonintersecting streets, as distinguished from a corner lot. 62. “Lot, interior” means a lot other than a corner lot. 63. “Lot lines” means the lines bounding a lot, including the right-of-way line of any public road, highway, or alley acquired by easement. 64. “Lot of record” means a lot that is part of a subdivision, or a plat of survey, the deed of which is recorded in the office of the County Recorder of Dallas County, or a lot or parcel described by metes and bounds, the description of which has been so recorded. 65. “Lot, reversed frontage” means a corner lot, the side street line of which is substantially a continuation of the front lot line of the first platted lot to its rear. (See Section 165.20 of these zoning regulations for illustrations of lot types.) 66. “Lot width” means the width of a lot measured at the building line and at right angles to its depth. 67. “Manufactured home” means a factory-built, single-family structure, which is manufactured or constructed under the authority of 42 USC Section 5403, Federal Manufactured Home Construction and Safety Standards , and is to be used as a place for human habitation, but which is not constructed with a permanent hitch or other device allowing it to be moved other than for the purpose of moving to a permanent site, and which does not have permanently attached to its body or frame any wheels or axles. A mobile home is not a manufactured home. For the purpose of these zoning regulations, “manufactured home” shall be considered the same as any site built single-family detached dwelling. 68. “Mini warehouse” means a building or group of buildings not more than one story and 20 feet in height and not having any other dimension greater than 150 feet per building, containing varying sizes of individualized, compartmentalized, and controlled stalls or lockers for the dead storage of customers’ goods or wares, excluding junk, explosive or flammable materials, and other noxious or dangerous materials, including if any, caretaker’s or supervisor’s quarters as an accessory use. No business activities other than rental of storage units shall be conducted on the premises. 69. “Mobile home” means any vehicle without motive power used or so manufactured or constructed as to permit its being used as a conveyance upon the public streets or highways and so designed, constructed, or reconstructed as will permit the vehicle to be used as a place for human habitation by one or more persons; but also includes any such vehicle with motive power not registered as a motor vehicle in Iowa. A mobile home is factory-built housing built on a chassis. A mobile home shall not be construed to be a travel trailer or other form of recreational vehicle. A mobile home shall be construed to remain a mobile home, subject to all regulations applying thereto, whether or not wheels, axles, hitch, or other appurtenances of mobility are removed and regardless of the nature of the foundation provided. Nothing in these zoning regulations shall be construed as permitting a mobile home in other than an approved mobile home park. 70. “Mobile home park” means any lot or portion of a lot upon which one or more trailers or mobile homes, occupied for dwelling or sleeping purposes, are located regardless of whether or not a charge is made for such accommodation. (See Section 165.20 of these zoning regulations for illustration of mobile home park setback lines.) 71. “Modular home” means factory-built housing certified as meeting the State Building Code and federal requirements applicable to modular housing. Once certified, modular homes shall be subject to the same standards as site built homes. 72. “Motel motor lodge” means a building or a group of attached or detached buildings containing individual sleeping or living units for overnight tourists, with garage attached or parking facilities conveniently located to each such unit. 73. “Nonconforming use” means use of a building or of land that does not conform to the regulations as to use for the district in which it is situated. 74. “Nonprofit institution” means a nonprofit establishment maintained and operated by a society, corporation, individual, foundation or public agency for the purpose of providing charitable, social, educational, or similar services to the public, groups, or individuals. Cooperative nonprofit associations, performing a service normally associated with retail sales or trade such as cooperative groceries, granaries, equipment sales, etc., are not considered nonprofit institutions under these zoning regulations. 75. “Nursing or convalescent home” means a building or structure having accommodations and where care is provided for three or more invalid, infirmed, aged, convalescent, or physically or mentally disabled or injured persons. 76. “Parabolic or dish type antenna” means a concave, circular or dish-shaped device designed for receiving communications or television signals from a satellite. 77. “Parking space, off-street” means a permanently surfaced area of not less than 171 square feet (9' x 19') plus necessary maneuvering space for the parking of a motor vehicle. Space for maneuvering, incidental to parking or leaving the parking space, shall not encroach upon any public right-of-way. (See Section 165.20 of these zoning regulations for parking illustration.) 78. “Porch, unenclosed” means a roofed projection which has no more than 50 percent of each outside wall area permanently enclosed by a building or siding material other than meshed screens. 79. “Principal building” means any structure designed and used (or intended to be used) for one of the principal permitted uses listed in each of the zoning districts as set out in these zoning regulations. 80. “Principal use” means the main use of land or structures as distinguished from an accessory use. 81. “Restaurant” means an establishment that is principally engaged in the preparation and retail sale of food and beverages, including the sale of alcoholic beverages when conducted as a secondary feature of the use, producing less than 50 percent of the establishment’s gross income. 82. “Rooming house” means a building where a room or rooms are provided for compensation to four or more persons. 83. “Story” means that portion of a building included between the surface of any floor and the surface of the floor next above it. If there is no floor above it, then the space between such floor and the ceiling or roof next above it is considered a story. 84. “Story, half” means a space under a sloping roof which has the line of intersection of roof decking and exterior wall face not more than four feet above the top floor level. 85. “Street line” means the right-of-way line of a street, alley, or road. 86. “Street or road, private” means any private right-of-way 20 feet or more in width which is approved by the Council after recommendation by the Commission. 87. “Street or road, public” means any thoroughfare or public way not less than 20 feet in width, which has been dedicated to the public or deeded to or acquired by the City or County for street purposes; and also, any such public way as may be created after enactment of these zoning regulations, provided it is 50 feet or more in width. 88. “Structural alterations” means any replacement or change in the type of construction or in the shape or size of a building or of the supporting members of a building or structure such as bearing walls, columns, beams, arches, girders, floor joists, or roof trusses, beyond ordinary repairs and maintenance. 89. “Structure” means anything constructed or erected with a rigid or fixed location on the ground, or attached to something having a fixed location on the ground. Among other things, structures include buildings, walls, fences (more than six feet in height), billboards, solar collectors, and dish antennas. 90. “Travel trailer” means a recreational vehicle, with or without motive power, designed as a temporary dwelling, not exceeding eight feet in width and 40 feet in length, exclusive of separate towing unit. The term “travel trailer” includes pickup coach, motor home, camp trailer, tent trailer, or other similar mobile and temporary dwellings commonly used for travel, recreation, or vacation quarters. 91. “Travel trailer park” means a parcel of land upon which two or more spaces are provided, occupied or intended for occupancy by travel trailers for transient purposes. 92. “Vehicle, antique” means a motor vehicle 25 years old or older, as provided and regulated by Section 321.115 of the Code of Iowa. 93. “Vehicle, inoperable” means any motor vehicle that lacks current registration or two or more wheels or other component parts the absence of which renders the vehicle unfit for legal use on streets. 94. “Vehicle, motor” means a self-propelled device used for transportation of people or goods over land surfaces and licensed as a motor vehicle. 95. “Yard” means an open space on the same lot with a building or structure unoccupied and unobstructed by any portion of a structure from 36 inches above the general ground level of the graded lot upward, except as may be provided by other sections of these zoning regulations. In measuring a yard for the purpose of determining the depth of a front yard or the depth of a rear yard, the least distance between the lot line and the main building shall be used. In measuring a yard for the purpose of determining the width of a side yard, the least distance between the lot line and the nearest permitted building shall be used, except that in no case shall any eaves or overhang (or any other projection) extend into the said front, side, or rear yard by more than 24 inches. If eaves or overhangs exceed 24 inches, then the building shall be set back into the permissible building area as necessary to eliminate any eaves or overhangs from extending more than 24 inches. 96. “Yard, front” means a yard extending across the full width of the lot and measured between the front lot line and the front of the building other than the projection of the usual steps or unenclosed porches. The narrow frontage on a corner lot is considered the front lot line regardless of where the building entrance is located. See the definition of “yard” for eaves or overhang limitations. 97. “Yard, rear” means a yard extending across the full width of the lot and measured between the rear lot line and the building other than steps, unenclosed balconies or unenclosed porches. An unenclosed balcony or porch is one in which 50 percent or less of the side walls of said balcony or porch are enclosed by screen, glass, or other material and includes a deck. On both corner lots and interior lots, the rear yard is the opposite end of the lot from the front. See definition of “yard” for eaves and overhang limitations. 98. “Yard, side” means a yard extending from the front yard to the rear yard and measured between the side lot lines and the building. See definition of “yard” for eaves or overhang limitations.