(a)   Prohibition.  It shall be unlawful for any person to operate or cause to be operated an automobile storage lot, whether licensed as an automotive storage lot pursuant to chapter 8 of this Code or as a vehicle storage facility pursuant to the Vehicle Storage Facility Act (article 6687-9a, Texas Revised Civil Statutes), an automotive wrecking and salvage yard as defined in chapter 8 of this Code, a lot used for open storage by a metal recycler/secondhand metal dealer, all as defined in chapter 7 of this Code, or a lot used for open storage by a used parts and used accessories dealer as defined in chapter 8 of this Code, within 300 feet of an existing church, school, or residence. The 300 foot measurement required under this section shall be made on the basis of land uses in existence at the time that the original permit or license application for the facility is filed and at the time of any expansion of the size of the property used for the facility. A facility that is lawfully in operation shall not become unlawful because a church, school, or residence is subsequently established within 300 feet of the facility and, provided that the facility remains continuously in operation without cessation for a period of 90 or more consecutive days, the permit or license for the facility may, subject to compliance with other applicable laws, nevertheless be renewed or transferred." 

(b)   Definitions and standards:   

(1)   Church.  A structure where a society of persons who profess a religious belief regularly assemble for religious worship or religious instruction and which is exempt from ad valorem taxes. 

(2)   School.  A public or private elementary, junior high and high school. 

(3)   Residence.  Any structure which, at the time of the application for a license, is being used as a dwelling place for residential purposes, whether single-family or multifamily. A structure located on a lot or tract of land used as an automobile storage lot, automobile wrecking and salvage yard or lot used for open storage by a metal recycler/secondhand metal dealer shall not be considered a residence within the terms of this definition. 

(4)   Open storage.  Materials stored upon a lot not within an enclosed structure. 

(5)   Measurement of 300 feet.  Shall be in a straight line from the property line or (at the applicant's request) from the boundary of operations of the automobile storage lot, automobile wrecking and salvage yard, or lot used by a metal recycler/secondhand metal dealer to the property line of the church, school or residence. 

(6)   Boundary of operations.  Shall be the fence line limiting the portion of a larger lot or tract to be used as the business operation area for the business requiring licensure under this Code. The boundary of operations shall be shown on a legal (or official) survey filed with the application for license and must be fenced according to the applicable standards of this Code. The fence shall be shown on the survey. The survey shall additionally show each route that will be used for vehicular ingress or egress to the business operation area. If the ingress or egress will not be exclusively taken from one or more public streets that abut the business operation area, then each route of vehicular ingress or egress must be included within the surveyed and fenced boundary of operations. This definition is applicable to automobile storage lots, automobile wrecking and salvage yards, and lots used for open storage by metal recyclers/secondhand metal dealers only and has no effect on any other person or business required to be licensed by the city. 

(c)   Existing structure. 

(1)   The terms of this section shall apply to all existing licensed automobile storage lots, automobile wrecking and salvage yards, and lots used for open storage by metal recyclers/secondhand metal dealers, from and after December 22, 1982, and to all lots used for open storage by a used parts and used accessories dealer, from and after December 22, 1993. Any owner or operator of an automobile storage lot, automobile wrecking and salvage yard or lot used for open storage by a metal recycler/secondhand metal dealer, which as of December 22, 1982, and any owner or operator of a lot used for open storage by a used parts and used accessories dealer, which as of December 22, 1993, is located within 300 feet of a church, school or residence shall, within 30 days of the date specified above, as applicable, make application with the appropriate licensing department for a special permit that indicates that the holder of the permit is located within 300 feet of a church, school or residence. It shall be unlawful to own or operate an automobile storage lot, automobile wrecking and salvage yard, a lot used for open storage by a metal recycler/secondhand metal dealer or a lot used for open storage by a used parts and used accessories dealer within 300 feet of a church, school or residence without first procuring the special permit required by this subsection.

(2)   Subject to compliance with other applicable laws, including chapters 7 and 8 of this Code as applicable, a special permit may be transferred to another owner. Application shall be made to the department responsible for issuing the permit, whether the police department or the administration and regulatory affairs department, and shall be executed by both the transferor and the transferee. In the event that the use of the premises is suspended at any time for a period of 90 or more consecutive days, then the special permit shall expire, and this provision shall not be construed to allow the transfer of a special permit that has so expired. A special permit may be revoked for failure to comply with any applicable law, regulation, or statute relating to the licensing or other regulation of the business.

(3)   If improvements upon any lot covered by this subsection are destroyed or damaged as a result of fire, explosion, weather or other Act of God in excess of 50 percent of the value of the then-current market value of the improvement based on the current city tax rolls, such improvement shall not be rebuilt or otherwise reconstructed. Nothing in this subsection shall be construed to prohibit the minor repair or routine maintenance of any existing improvements.

(4)   No holder of a special permit shall be entitled to expand or otherwise enlarge the business by adding additional improvements or land or to make a new investment thereto; provided, however, that this restriction on the addition of improvements shall not apply to improvements made in order to comply with any state or local ordinance, statute or regulations.

(5)   If a licensed automobile storage lot, automobile wrecking and salvage yard, or a lot used for open storage by a metal recycler/secondhand metal dealer or a used auto parts and used accessories dealer holds a valid special permit under this subsection, then it shall not be placed in violation of this section, or become ineligible for a renewal of a permit or license, or be required to obtain a special permit, due to the subsequent construction or placement of a church, school or residence within 300 feet of the location of such licensed business.

(d)   Newly annexed areas.  Persons owning or operating automobile storage lots, automobile wrecking and salvage yards, lots used for open storage by metal recyclers/secondhand metal dealers, and used parts and used accessories dealers situated in areas that are newly annexed into the corporate limits of the city after the dates specified in subsection (c) above, as applicable, may apply for and be granted special permits in the same manner provided for existing owners or operators under subsection (c), above. The application for the special permit must be filed within 30 days following the effective date of the annexation of the area where the lot or yard is situated. Special permits issued under this subsection and holders thereof shall be subject to all of the same restrictions imposed under subsection (c) with regard to other special permits and holders thereof, provided that the effective date of the annexation of the area where the lot or yard is situated shall apply in lieu of the applicable date specified in subsection (c) above, in any determination made with regard to the special permit or business operated thereunder. The provisions of this subsection shall not be available to the operator of any premises unless the premises was open for a business subject to regulation under this section on the date of first publication in a newspaper of general circulation of the notice of annexation hearings under Section 43.052 of the Local Government Code or unless the operator had, on or before that date, leased or purchased the property and had actually commenced improving it for the express purpose of establishing the regulated business. 

(e)   Reserved.   

(f)   Improvement of specially permitted facilities.   

(1)   Notwithstanding the provisions of item (4) of subsection (c), above, the planning commission may authorize the improvement of a specially permitted facility that is regulated under this section in accordance with this subsection. An application for improvement of a specially permitted facility shall be made to the planning official in a form prescribed by the director of planning and development and shall include:

a.   A nonrefundable fee of $200.00; and

b.   A statement of the specific facts and reasons that the applicant believes warrant the authorization, which shall address each of the criteria of item (4) of this subsection.

The director shall cause each application to be reviewed and shall cause a staff report regarding the application to be provided to the commission prior to the meeting at which the application will be considered. The commission shall schedule the consideration of each application for a meeting of the commission and shall instruct the applicant and the director to cause notice to be given as provided in items (2) and (3) of this subsection.

(2)   Notice of the commission meeting at which the application will be considered shall be given in both English and Spanish at the expense of the applicant by:

a.   The publication of notice, in a form to be prescribed by the director, in a newspaper of general circulation in the city, at least 15 days before the date of the commission meeting;

b.   The mailing of notice, at least 15 days before the date of the commission meeting, to the owners, as shown on the most recently approved tax roll, of each tract or parcel of property that is situated in whole or in part within a distance of 300 feet from the boundaries of the property that is the subject of the request for a transfer application;

c.   The mailing of notice, at least 15 days before the date of the commission meeting, to all civic associations registered with the planning and development department whose boundaries include all or a portion of the area situated within 300 feet of the property that is the subject of the transfer application; and

d.   The posting of notice upon a sign on the property for which the improvement is requested, giving notice of the application and the date of the commission meeting. The director shall prescribe the dimensions of the sign and shall establish criteria for the location of the sign. If the property for which the application is made fronts on or has access to more than one public street, the director may require placement of more than one sign on the subject property upon a finding that more than one sign is necessary to provide adequate notice. The sign or signs shall be posted 72 hours after the director gives notice for their posting to the applicant, provided that the sign shall be posted at least 15 days prior to the date of the hearing.

(3)   The applicant shall provide the following information to the director at the time specified by the director:

a.   A certified list of the property owners to whom notice must be given pursuant to item (2) of this subsection; and

b.   For each property owner and registered civic association to whom notice must be given pursuant to item (2) of this subsection:

1.   One stamped envelope addressed to each property owner and registered civic association; and

2.   One copy of the notice of the public hearing in the form prescribed by the director.

The applicant shall also provide proof to the director that the required newspaper notices have been timely published and that the required sign(s) have been posted and maintained for the required time period.

(4)   The applicant and any member of the public may address the commission and present evidence or comments regarding the application at the meeting at which it is considered. The burden shall be upon the applicant to show by a preponderance of the credible evidence that the applicant is entitled to the granting of the application. Following the receipt of evidence and comments, the commission shall consider the matter and shall grant the application if it determines that each of the following criteria exists:

a.   The improvement will not substantially increase the vehicular traffic on any street that is not a major thoroughfare. In making this determination, the commission shall consider whether the facility takes its primary access from a major thoroughfare and whether it has rail or waterborne access for the receipt and shipment of materials.

b.   The improvement will not have a negative effect upon the appearance of the community in which it is situated. In making this determination, the commission shall consider the applicant's plans for perimeter fencing and landscaping as well as the appearance of any structures, equipment, or other features of the facility that may be visible from the exterior.

c.   The facility, by virtue of its activities, does not pose a substantial risk of adverse health effects, unlawful noise, fire, explosion, or other nuisance conditions, and the proposed improvements will not increase those risks. In making this determination, the commission shall consider the prior operating history of the facility.

d.   There exists upon the property a capital investment of at least $500,000.00 current book value in facilities and equipment.

e.   The facilities and equipment upon the property were placed for the operation of the facility for which the authorization is sought and may not readily be adapted to other uses that are not subject to regulation under this section or be removed to another location.

f.   The granting of the application will not be injurious to the public health, safety, and welfare.

The commission may condition its granting of the application, if granted, upon the applicant's installation and maintenance of buffer zones, trees, shrubs, special fences, or other improvements to reduce noise or improve the external appearance of the property if it determines that the action is desirable to protect the public health, safety, and welfare. Any such requirement shall be consistent with the purpose of causing the use of the applicant's property to be as harmonious as practicable with the use of other nearby properties.

(5)   The applicant or any person to whom notice is required to be given under part b. or c. of item (2) of this subsection may appeal, provided that the person attended and participated in the commission meeting, either in person or through an authorized representative. Appeals shall be to the city council and shall be governed by rule 12 of the city council rules of procedure (section 2-2 of this Code). Notice of an appeal must be filed in the city secretary's office by the tenth day following the rendition of the commission's decision on the application. The commission shall cause each meeting or portion thereof at which an application is to be considered to be videorecorded. Notwithstanding any provision of rule 12 to the contrary, any required transcript for an appeal to the city council may be prepared from the video recording. An appeal shall not suspend the action of the commission pending the decision of the city council.

(g)   The licensing department may extend the filing period for a special permit upon demonstration to the director by clear and convincing evidence that the facility was in fact in operation on the effective date and that the applicant's failure to timely file was based upon an error or misunderstanding and not the result of conscious indifference to the requirements of this section.

(h)   The provisions of this section are not applicable to the premises of a body shop facility with storage privileges operating under a valid license issued under division 4 of article II of chapter 8 of this Code