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Item 16-Staff report M E M O R A N D U M September 3, 2021 To: Planning and Zoning Commission From: Ken Baker, AICP – Sr. Director of Planning & Development Services Subject: Item 16 – Consider 480-FFFFF, amendments to the City of Southlake Zoning Ordinance No. 480, as amended, pertaining to solar energy systems, commercial outdoor dining area, brew pubs and other similar uses. Purpose: The purpose of this item is to consider and provide a recommendation to City Council on amending Zoning Ordinance 480 to add the following regulations and permitted uses: 1. Add brew pubs and craft breweries as permitted uses in the City’s commercial zoning districts (C2, C3, DT). 2. Provide regulations that outdoor dining patio dining, seating, tables and accompanying accessories (i.e. umbrellas) are permitted as an accessory use/function for establishments offering food or beverages. 3. Amend the current solar energy system regulations to reflect Texas Senate Bill (SB) 398 that was adopted during this past legislative session and exempts a municipality from prohibiting the installation of a solar device by a residential or small commercial customer. Background Information/Proposed regulations: The following will provide the Commission with a brief overview for the purpose of the ordinance changes followed by the proposed regulations. Brew Pubs and Craft Breweries: Background: The popularity of brew pubs and craft breweries is growing across the U.S. and are now becoming a common use in downtown and retail / shopping areas. Industry trends indicate that the demand for brew pubs and craft breweries will continued to grow over the foreseeable future. A brewpub is primarily an eating and drinking establishment (restaurant) with a small brewery on or in a nearby premise which produces beer or malt beverages, and where the majority of the beer produced is consumed on site. However, some beer pubs may have the ability to sell to distributors, self-distribute or transport beer with an appropriate State license. A brewpub produces less than 10,000 barrels annually per State law. A craft brewery is a retail commercial use with a small brewery located on the premise or adjacent premise for the manufacturing, bottling, packaging and dispensing of beer, sales to the consumer for on or off-premise consumption. Retail sales of products related to the brewery operation are permitted. Food can be served but is optional. Sales to qualified a wholesaler is permitted and production is limited to the maximum of number of barrels defined by the Texas Alcoholic Beverage Commission. A Specific Use Permit approved by the City Council under the term “bar or tavern” will still be required if the establishment derives more than 75% or more of the establishment’s gross revenue from the on-premise sell of alcoholic beverages. Currently, the City has not defined these uses (brew pub/craft brewery) in our zoning ordinance. The City has permitted a couple of brewpub activities under the C-3 zoning district accessory provisions. However, permitting the use under this provision only allows this type of use in the C-3 district and does not provide any general standards. It is believed that as the demand for a brew pub or craft brewery operations increase, it would be beneficial to establish a formal definition and regulations. Proposed Regulations: Add the following to Section 4 – Definitions BREW PUB - An eating and drinking establishment with a small brewery on premise or on an adjacent premise which is authorized to manufacture, brew, bottle, can, package , and label malt beverages/beer to sell or offer without charge to the ultimate consumer for on-site and off-site consumption, transport, sell to distributors, or self-distribute. Food sales must be greater than 50% of the gross receipts of the business. Production is limited to a maximum of 10,000 barrels annually or as defined by the Texas Alcoholic Beverage Commission (TABC). All operations, even if described as a permitted activity in this definition, must adhere to all TABC regulations. The owner/operator shall obtain all required TABC permits/licenses prior to operating. Add a Brew Pub as a permitted use in the following sections: Section 21 – “C-2” Local Retail Commercial District Section 22 – “C-3” General Commercial District Section 37 – “DT” Downtown District Add the following to Section 4 – Definitions CRAFT BREWERY – A retail commercial use with a small brewery located on the premise or on an adjacent premise which is authorized to manufacture, brew, bottle, can, package, and label malt beverages/beer to sell or offer without charge to the ultimate consumer for on-site and off-site consumption, transport, sell to distributors, or self-distribute. Sampling or tastings of product are permitted. Retail sales of products related to the brewery operation are permitted. Food can be served but is not required. Production is limited to the maximum of number of barrels as defined by the Texas Alcoholic Beverage Commission. All operations, even if described as a permitted activity in this definition, must adhere to all TABC regulations. A Specific Use Permit approved by the City Council under the term “bar or tavern” is required if the establishment derives more than 75% or more of the establishment’s gross revenue from the on-premise sell of alcoholic beverages. The owner/operator shall obtain all required TABC permits/licenses prior to operating. Add a Craft Brewery as a permitted use in the following sections: Section 21 – “C-2” Local retail Commercial District Section 22 – “C-3” General Commercial District Section 37 – “DT” Downtown District Outdoor Patio Dining Background: During the COVID-19 pandemic, the City developed temporary outdoor dining regulations that allowed seating and dining options to better meet the needs of the customer. These regulations were popular and effective during the height of the COVID-19 pandemic and following a work session with City Council, staff was directed to develop permanent regulations that would allow this activity as a permitted accessory use . The regulations as proposed would allow outdoor seating and dining and standard accessory uses (i.e. portable umbrellas) to be approved administratively if provided within the regulations established. Provision of the outdoor seating area may not result in the alteration of the building, sidewalk or other infrastructure. Also, any installation of permanent improvements such as barriers, shade structures or canopies will still require site plan approval. The outdoor seating area will require a permit by the City and will only be issued following an inspection by the Building Official or Fire Marshal or the assigned designee. Proposed Regulations: 34.1 AUTHORIZED ACCESSORY USES - In addition to other uses which are customarily incidental to the principal use of the premises, the following accessory uses are specifically authorized in the listed zoning district when constructed or operated in conjunction with an appropriate principal use: Modify Section 34.1 Accessory Uses as shown below: ACCESSORY USE Districts where permitted nn. Outdoor Patio Dining (seating, tables and portable umbrellas) in which the following criteria is met: 1. Patio area shall not exceed 25% of the restaurants indoor dining square footage area or 800 square feet, whichever is less. 2. Sidewalk clearance of Americans with Disability Act (ADA) standards (36") must be maintained. 3. Must be located on-site and not create a safety or traffic hazard. 4. Cannot be located within a fire lane. 5. Shall not eliminate any required parking. 6. Shall be maintained in a clean and orderly fashion and meet all applicable County and State regulations and Texas Alcoholic Beverage Control Regulations. 7. May not result in the alteration of the building, sidewalk or other infrastructure. 8. Must not include any permanent improvements such as barriers, fences, canopies, awnings, etc. 8. Proof of permission to install an outdoor patio area is required to be submitted to the City in writing from the property owner and/or the property management company. All patios must be approved by the City's Fire Marshal and Building Official or the assigned designee. Barriers may be used to demarcate the patio dining area. C1, C2, C3, DT Barriers can include wood, metal or synthetic fencing, planters, or other devises approved by the Planning and Development Services Department. An encroachment agreement with the City may be required for any outdoor patio areas located in the right of way. Solar Panels: Background: The City currently regulates Solar Energy Systems via Section 45 (Specific Use Permit) and Section 34 (Accessory Use) of the Zoning Ordinance. Senate Bill 395 was adopted during the most recent legislative session and essentially preempts the City from regulating the installation of solar energy systems for residential and small commercial customers except to the following extent: • A property owner’s association may prohibit the installation under Sections 202.010 (d) (1) through (7) of the property code. The property code only requires that the system conform to the slope of the roof; frames or brackets be of a certain color, that the system is installed per warranty and in a manner that does not create a health and safety issue, and that ground systems do not extend above the fence line. A small commercial customer is defined by the State as a non-residential retail customer having a peak demand of 1,00 kw or less. Add the following to Section 4 – Definitions Small commercial customer - A non-residential retail customer having a peak demand of 1,000 kilowatts (kW) or less as defined by the State of Texas Utility Code as mended. Modify Section 34.1 Accessory Uses as shown below: ll. Solar Energy Systems – Roof mounted Solar Panels in Residential and Non-Residential Districts are permitted for all residential and small commercial customers under the following standards as established by State law: (480-FFFFF): A. Residential and small commercial customers: i. Conforms to the slope of the roof and has a top edge that is parallel to the roofline. All applicable Zoning Districts – Site Plan Required ii. Has a frame, a support bracket, or visible piping or wiring that is silver, bronze, or black tone commonly available in the marketplace. iii. If a ground mounted system is located in a fenced yard or patio the system cannot be taller or exceed the height the fence line . iv. Shall not create a public health or safety issue or violate a law. v. A letter submitted to the City from the installer indicating the system was installed per material warranty. ll. Solar Energy Systems – Roof mounted Solar Panels in Residential Districts are permitted under the following standards (480-DDDDD): A. Accessory Buildings: i. A line of site analysis demonstrates that the system is not visible from any public or private roadway/right of way. ii. System is installed on a flat roof structure that is placed on a permanent foundation. iii. The total solar array is less than 600 square feet (cumulative). iv. Accessory Building must meet all zoning requirements in terms of height and setbacks. B. Roof structures that are an extension or attached (Patio extension) to the main residence. i. A line of site analysis demonstrates that the system is not visible from any public or private roadway/right of way. ii. System is installed on a flat roof structure iii. The total solar array is less than 600 square feet (cumulative) . C. Residential roof structures including domestic employee or family quarters. i. A line of site analysis demonstrates that the system is not visible from any public or private roadway/right of way. ii. The total solar array is less than 600 square feet (cumulative). D. Solar Shingle or Roof Material i. Any solar energy system such as a solar shingle that cannot be differentiated from a typical roofing shingle or material. mm. Solar Energy Systems – Roof mounted Solar Panels in Non - Residential Districts are permitted under the following standards (480-DDDDD) (For small commercial customers see section 34.1.ll) A. Flat roof structures 1) A line of site analysis demonstrates that the system is not visible from any public or private roadway/right of way or any residential zoned or residentially land use plan property within 300 feet of the All Non-Residential Districts – Site Plan Required. structure. B. Solar Shingle or Roof Material i. Any solar energy system such as a solar shingle that cannot be differentiated from a typical roofing shingle or material. ORDINANCE NO. 480-FFFFF AN ORDINANCE AMENDING ORDINANCE NO. 480, AS AMENDED, THE COMPREHENSIVE ZONING ORDINANCE OF THE CITY OF SOUTHLAKE, TEXAS; AMENDING SECTION 34, ACCESSORY USES, SECTION 20 C-1 NEIGHBORHOOD COMMERCIAL; C-2 LOCAL RETAIL COMMERCIAL USES; C-3 GENERAL COMMERCIAL DISTRICT, AND SECTION 4 DEFINITIONS REGULATIONS PERTAINING BEER PUBS, CRAFT BREWERIES, SOLAR SOLAR ENERGY SYSTEMS; SMALL COMMERCIAL CUSTOMERS PROVIDING THAT THIS ORDINANCE SHALL BE CUMULATIVE OF ALL ORDINANCES; PROVIDING A SEVERABILITY CLAUSE; PROVIDING FOR A PENALTY FOR VIOLATIONS HEREOF; PROVIDING A SAVINGS CLAUSE; PROVIDING FOR PUBLICATION IN PAMPHLET FORM; PROVIDING FOR PUBLICATION IN THE OFFICIAL NEWSPAPER; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Southlake, Texas is a home rule city acting under its charter adopted by the electorate pursuant to Article XI, Section 5 of the Texas Constitution and Chapter 9 of the Local Government Code; and WHEREAS, the city has adopted Ordinance No. 480, as amended, as the Comprehensive Zoning Ordinance for the city; and WHEREAS, the city council has determined that it is appropriate and in the best interest of the city to promote the public health, safety, and general welfare of its residents by amending Ordinance No. 480 as provided herein; and WHEREAS, the Planning and Zoning commission and City Council have given published notice and held public hearings with respect to the amendment of the zoni ng ordinance as required by law. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SOUTHLAKE, TEXAS: Adopted Language to be inserted SECTION 3 This ordinance shall be cumulative of all provisions of ordinances of the City of Southlake, Texas, except where the provisions of this ordinance are in direct conflict with the provisions of such ordinances, in which event the conflicting provisions of such ordinances are hereby repealed. SECTION 4 It is hereby declared to be the intention of the City Council that the phrases, clauses, sentences, paragraphs and sections of t his ordinance are severable, and if any phrase, clause, sentence, paragraph or section of this ordinance shall be declared unconstitutional by the valid judgment or decree of any court of competent jurisdiction, such unconstitutionality shall not affect any of the remaining phrases, clauses, sentences, paragraphs and sections of this ordinance, since the same would have been enacted by the City Council without the incorporation in this ordinance of any such unconstitutional phrase, clause, sentence, paragraph or section. SECTION 5 Any person, firm or corporation who violates, disobeys, omits, neglects or refuses to comply with or who resists the enforcement of any of the provisions of this ordinance shall be fined not more than Two Thousand Dollars ($2,000.00) for each offense. Each day that a violation is permitted to exist shall constitute a separate offense. SECTION 6 All rights and remedies of the City of Southlake are expressly saved as to any and all violations of the provisions of Ordinance No. 480, as amended, or any other ordinances affecting zoning yard regulations which have accrued at the time of the effective date of this ordinance; and, as to such accrued violations and all pending litigation, both civil and criminal, whether pending in court or not, under such ordinances, same shall not be affected by this ordinance but may be prosecuted until final disposition by the courts. SECTION 7 The City Secretary of the City of Southlake is hereby authorized to publish this ordinance in book or pamphlet form for general distribution among the public, and the operative provisions of this ordinance as so published shall be admissible in evidence in all courts without further proof than the production thereof. SECTION 8 The City Secretary of the City of Southlake is hereby directed to post the proposed ordinance in its entirety on the City website together with a notice setting out the time and place for a public hearing thereon at least ten (10) days before the second reading of this ordinance, and if this ordinance provides for the imposition of any penalty, fine or forfeiture for any violation of any of its provisions, then the City Secretary shall additionally publish this ordinance in the official City newspaper one time within ten (10) days after passage of this ordinance, as required by Section 3.13 of the Charter of the City of Southlake. SECTION 9 This ordinance shall be in full force and effect from and after its passage and publication as required by law, and it is so ordained. PASSED AND APPROVED on the 1st reading the ______ 2021. ___________________________________ MAYOR ATTEST: ___________________________________ CITY SECRETARY PASSED AND APPROVED on the 2nd reading the _____ 2021. ___________________________________ MAYOR ATTEST: ___________________________________ CITY SECRETARY APPROVED AS TO FORM AND LEGALITY: _________________________________ CITY ATTORNEY DATE:___________________________ ADOPTED:_______________________ EFFECTIVE:______________________