§ 155.093  EXCEPTIONS, MODIFICATIONS, AND PROVISIONS AS TO LOCATION OF LIQUOR AND MALT BEVERAGE SALES/PRODUCTION.
   These provisions are applicable to sales of liquor and malt beverages not set forth in detail above:
   (A)   The owner and/or operator of any licensed facility selling and/or producing liquor or malt beverages shall, maintain at the facility copies of current licensing documents from the Commonwealth of Kentucky or other licensing agency and allowed the Zoning Administrator to determine if the facility is operating in compliance with the zoning ordinance.
   (B)   The zoning ordinance does not independently authorize any sales of liquor or malt beverages or the production of the same. Any rights pursuant to the zoning ordinance only exist if any statutorily required local option election has lawfully authorized the sale or production and the owner and/or operator of such facility has obtained all other necessary permits, licenses, and approvals under all applicable law.
   (C)   Provisions in the zoning ordinance as to the sale or production of liquor of malt beverages do not exempt the property owner or operator from compliance with other provisions of the zoning ordinance unless such exemption is expressly stated herein.
   (D)   Retail package liquor and/or malt beverage stores, taverns, and table restaurants SA are prohibited from using flashing signs or scrolling electronic message signs on the facility property. Such facilities are also prohibited form using mobile trailers on the facility property for advertising purposes.
   (E)   Owners and/or operators of retail package liquor and/or malt beverage stores, taverns, and table restaurants SA are responsible for keeping external noise levels at their facilities at a level which does not constitute a nuisance or otherwise disturb the peace or health, safety, and welfare of the neighbors of the facility or the city.
   (F)   Owners and/or operators of retail package liquor and malt beverage stores, taverns, and table restaurants SA are responsible for keeping their parking lots as places for persons to obtain egress and ingress from the facilities rather than places for congregation of persons so as to create safety issues in relation to vehicles entering and exiting the parking lots.
   (G)   The Zoning Administrator shall prepare and make available to the public forms for requesting any site plan or conditional use permit required for operation of retail package liquor or malt beverage stores, taverns, and table restaurants serving alcohol. Fees for any such applications shall be the same as for similar applications unrelated to alcohol sales. Any affidavits required to be submitted pursuant to the zoning ordinance for facilities which sell liquor or malt beverages shall be submitted to the Zoning Administrator in a notarized form to his reasonable satisfaction.
   (H)   Provisions supplementary to district regulations (See § 155.060):
      (1)   Retail package liquor sales, retail malt beverage sales, taverns, and table restaurants serving alcohol are not permitted in residential zoning districts, including R-1, R-1 Agriculture, R-2, R-3, and R-4, and any subsequently created residential zoning district where no existing license for serving or retail sales of alcohol exists prior to designation of a property in a residential zoning district.
      (2)   The location of retail package liquor sales, retail malt beverage sales, taverns, and table restaurants serving alcohol in the showcase area (more particularly described and/or depicted on Attachment A) having tourism-related, historic, cultural, aesthetic, or other unique features is inconsistent with the comprehensive plan, the zoning ordinance, economic development objectives; and the health, safety, and welfare of the city and its residents and businesses, and so such businesses selling alcohol are PROHIBITED from locating on property in the showcase area.
      (3)   Retail package liquor sales is permitted in the B-2, B-3, and B-4 zones and retail malt beverage sales is permitted in the B-1, B-2, B-3, and B-4 zones if not in a designated showcase area unless division (4) below is applicable.
      (4)   Notwithstanding the foregoing, a rational basis exists for more permissive location of retail package liquor sales in the B-1 zone or retail package liquor sales or retail malt beverage sales in a planned unit development in any zone if conducted in a retail store exceeding 10,000 square feet in interior floor space and if the majority of such store’s annual sales as documented by initial year quarterly and thereafter annual affidavit from a property owner or authorized representative is from other than retail package liquor and retail malt beverage sales. Accordingly, retail package liquor sales in the B-1 zone classification as well as retail package liquor sales and retail malt beverage sales in planned unit developments are not prohibited if the above-referenced square footage and sales standard are met for a retail store. The rational basis for the distinction established in this paragraph includes that such 10,000 square foot plus facilities such as drugstores, pharmacies, grocery stores, and “big box” retailers selling wide ranges of products, are important to health, safety, welfare, and economic well-being of the community, including both adults and children, on a broader basis and are generally perceived differently from stores/facilities which primarily sell liquor and/or malt beverage products (the aforementioned square footage standard is measured by the entire building even if divided in the interior and/or having separate entrances.) No similar rational basis exists for location of taverns in B-1 zones or planned unit developments in B-1 or residential zones.
      (5)   Tavern sales of liquor and malt beverages shall be permitted in the B-2, B-3, and B-4 zones as long as the tavern is not on a parcel in a designated showcase area.
      (6)   Table restaurant sales of liquor and malt beverages is permitted in the B-1, B-2, B-3, and B-4 zones upon quarterly owner, officer, or management affidavits in the first year of such table restaurants sale of liquor and/or malt beverages, and annual affidavits thereafter, that at least 50% of monthly sales revenues of the table restaurant come from sources other than the aggregate of liquor and malt beverages. Such table restaurant sales shall not be in the showcase area.
      (7)   Manufacturing of liquor and/or malt beverages is permitted in breweries, microbreweries, distilleries or wineries or small farm wineries in the Light Industrial (I-1) and Heavy Industrial (I-2) zones as long as not located in a showcase area.
      (8)   Souvenir package sales and retail drink sales associated with a brewery, microbrewery, winery, small farm winery, or distillery in compliance with KRS 241.010 and ICRS 243.0305 as recently amended by Senate Bill 11 as effective July 15, 2016, are allowed in the I-2 and I-2 districts subject to site plan review and approval by the Planning Commission or its designee. Site plan review is to be based on adequate safety, parking, and access considerations.
      (9)   Small farm wineries and microbreweries.
         (a)   Small farm wineries and microbreweries are permitted in any Light Industrial (I-1) District and Heavy Industrial District (I-2).
         (b)   Small farm wineries and microbreweries are permitted on property not in a Showcase Area upon KRS 100.237 conditional use permit (“CUP”) approval as to safety to persons and property, including adjoining properties, in B-2, B-3, B-4, and R-1 agricultural districts in compliance with the zoning ordinance (this applies to the R-1 Agricultural District does not apply to the R-1 Low Density Residential District).
         (c)   CUP approval as established in this division (9) is required even if a proposed small farm winery or microbrewery is accessory to, attached to, or on the same parcel as an otherwise permitted tavern, table restaurant SA, and/or retail package liquor or retail malt beverage sales facility.
         (d)   Applicant requesting CUP approval per this division (9) shall submit application on form provided by Zoning Administrator and shall include a site plan prepared by Kentucky licensed engineer, architect, or land surveyor showing compliance with zoning ordinance, and illustrating parking and access to be used by proposed facility. The application shall include a narrative signed on behalf of the applicant as to compliance with applicable standards set forth above. Wineries and microbreweries shall comply with parking and lot standards for a table restaurant SA if the winery or microbrewery is open to the public for tours and/or bottle or package sale of or serving of alcohol. If not open to the public for such purpose, a winery or microbrewery shall comply with parking and lot standards for a brewery, distillery, or winery.
      (10)   Special compatibility standards, with limited exceptions, are established in this division for any alcohol sales property with a protected residential classification property adjoining to the rear or side of the alcohol sales property and not separated by a city street, county road or state highway.
         (a)   Properties in the R-1, R-1 Agriculture District, R-2, R-3, R-4 and in any subsequently created residential zoning classifications are in the protected residential classification for purposes of this section.
         (b)   A property on which a tavern, retail package liquor sales, and/or malt beverage sales is to be located (“alcohol sales property”) and which adjoins one or more properties in the protected residential classifications shall comply with the special compatibility standards of this section of the zoning ordinance; except that, for good cause shown as to minimal impact on properties in protected residential classifications, a motor vehicle service station or retail convenience store of less than 10,000 square feet store size, which is also selling gasoline and/or diesel fuel, may conduct malt beverage sales without full compliance with the special compatibility standards upon obtaining a conditional use permit ("CUP"). The Board of Adjustment may condition, grant of a CUP on compliance with one or more of the special compatibility standards set forth herein or other reasonable site specific conditions. Such facilities selling gasoline and/or diesel fuel are treated differently herein because their primary product is not generally malt beverages and because of the multiple front and side vehicular entrance and exit points normally associated with such businesses. Note: table restaurants SA (serving alcohol) as defined in § 155.003 are not subject to the adjoining property requirements found in this division, except the music volume/hours requirements set forth below.
            1.   Notwithstanding the foregoing, an alcohol sales property on which the sale of alcohol is in a strip center building containing four or more premises for separate businesses or in a downtown building in the B-3 (Central Business District) zone involving zero to less than 20 foot spacing between side by side commercial, institutional, and/or governmental buildings (“downtown building”), and in which the property in a protected residential classification is more than 75 feet from the rear of the strip center building or downtown building, is exempt from the within special compatibility standards as long as:
               a.   There is not an outdoor patio, customer service area, bar, dance area, smoking area, or other area where customers of the business selling alcoholic beverages regularly assemble or enter or leave the business from the rear of the strip center or downtown building; or
               b.   Customers do not access a drive through window on the rear of the strip center or downtown building to purchase alcoholic beverages.
            2.   Notwithstanding the foregoing, those retail store buildings and sports recreational facilities buildings (including bowling alleys) exceeding 10,000 square feet of interior floor space (measured by the entire building even if divided in the interior and/or having separate entrances) and meeting the criteria of § 155.093(H)(4) of the zoning ordinance and hotels, motels, and country clubs are exempt from the within special compatibility standards for so long as:
               a.   There is not an outdoor patio, customer service area, bar, dance area, smoking area, or other area to the rear of the business where customers of the business selling alcoholic beverages regularly assemble;
               b.   Customers do not access a drive through window on the rear of such facility to purchase alcoholic beverages;
         (c)   Alcohol sales properties shall comply with the following special compatibility standards:
            1.   Alcohol sales properties, on their side and rear property lines, shall be separated from properties adjoining properties having a protected residential classification by a wall or fence within six feet of the property line or edge of privately owned alley, private easement or private road or any greater distance required by any recorded easement or utility installation (this requirement does not apply to sections of property where there is a city street, county road, or state highway between an alcohol sale property and property with a protected residential classification, but would apply where the properties adjoin or were separated by only a privately owned alley, easement, or driveway). Any walls shall be constructed of masonry and/or concrete products and faced with natural stone, veneer, or brick. Fences shall be constructed of wood or other weatherproof, durable materials generally used in the exterior construction of buildings and shall be six feet to eight feet tall from ground level. Fence posts shall be structurally stable based on the material used, and shall have a maximum spacing of eight feet on center. If wood is used, the posts shall be four-inch by four-inch minimum. Posts shall be set in or anchored or crowned concrete footers at least six inches larger in each direction than the post it supports. The base of the footer shall be at least 24 inches below finished grade. If wood is used for any member, it shall be softwood treated with water borne preservative to the American Wood Preservers Institute standard LP-2 for above ground use or LP-22 for ground contact use, or all heart redwood, or all heart cedar. All cut surfaces of pressure treated lumber shall be water-proofed. If another material is used, it shall be weatherproof. All hardware is to be galvanized or otherwise rustproof. Chain link fencing may not be used to meet these requirements. Walls and fences allowed to meet the foregoing requirements shall not be used for the erection or display of any sign or other advertising device facing toward a property in the protected residential classification. Any wall or fence constructed hereunder shall be maintained in good condition in order to provide ongoing compliance with this paragraph. Any wall or fence constructed hereunder shall also comply with otherwise applicable provisions of the Kentucky Building Code in effect at the time of construction, and the standards of such code shall apply to walls or fences six feet tall or more, even if such code would only otherwise apply to walls or fences of a greater height. If there is any conflict between standards set forth herein and those of the Kentucky Building Code at the time of construction, the more stringent requirements shall apply.
            2.   The parking lot or driveway lighting or other outdoor lighting on an alcohol sales property will be directional so as to prevent lighting of adjoining properties having a protected residential classification.
            3.   Any lighted or unlighted advertising signage on the alcohol sales property shall not be facing adjoining property having a protected residential classification which adjoins the rear property line of such property.
            4.   The height of the buildings will not exceed the height allowable for the alcohol sales property pursuant to the zoning ordinance and any height variance requested for such property may be decided by the Board of Adjustment on finding of adverse impact on adjoining property having a protected residential classification;
            5.   Soft earth colors, such as brown, grey, tan, dark green, white or flat black shall be used for the rear or side exterior walls, gutters, exterior door and window frames, dumpsters, fixtures, and appurtenances, and accessory structures of buildings on an alcohol sales property which adjoins adjoining property having a protected residential classification on the site or rear of the alcohol sales property.
            6.   There will be no outside storage on an alcohol sales property, except that a dumpster with screening as otherwise required by the zoning ordinance shall be permitted.
            7.   Any tavern or table restaurant SA may utilize outside speakers or outdoor musicians for playing of music if it adjoins property having a protected residential classification on its rear or side property lines provided it does not unreasonably disturb neighbors and does not occur other than between 10:00 a.m. and midnight local time. Interior speakers or musicians in a tavern or table restaurant SA shall not play music other than between 10:00 a.m. and midnight local time or at a volume so as to disturb persons on adjoining properties in a protected residential classification, or otherwise become a nuisance or violate other applicable noise regulations of the zoning ordinance or of the city. Disturbance by loud music is determined as a volume which would disturb a reasonable person residing on property in a residential zoning classification (local time is Eastern Standard Time or Eastern Daylight Time depending on the time of the year).
            8.   These special compatibility standards are for the benefit of the city as a whole and may not be waived by owners of property in a protected residential classification.
            9.   Notwithstanding the foregoing, these special compatibility standards are the minimum requirements to be applicable. Any other requirements of the zoning ordinance applicable to an alcohol sales property are not waived or superseded by the special compatibility standards.
(Ord. 16-09, passed 11-21-2016)