1329.10 LOCATION OF VIDEO LOTTERY ESTABLISHMENTS.
   (a)   Purpose.
      (1)   It is the purpose of the section to regulate the location of Video Lottery Establishments within the C-1 Zoning District.
      (2)   It is not the purpose of the section to permanently bar any Video Lottery Establishment now conducting business lawfully within the City of Vienna, or to expressly regulate the number of Video Lottery Establishments within the C-1 Zoning District.
   (b)   Authority.
      (1)   Grant of Power: The authority to enact this section is established under W.Va. Code § 8A-1-l et seq., and the laws of the State of West Virginia.
      (2)   Affected District: This section shall apply to and be effective within the C-1 Zoning District and in conformity with other ordinances previously adopted.
   (c)   Definitions: For purposes of this section, the following words or terms shall have the meanings ascribed to them thereafter except when the context suggests otherwise.
      (1)   "Abandonment" or "Abandoned" shall mean that the use with respect to a Premise, regardless of the intent of the user, has ceased or has discontinued for a period of more than sixty (60) consecutive days, or an explicit declaration by the user of a Premises that it has ceased a use with respect to the Premises that is nonconforming with this section.
      (2)   "Applicant" shall mean a person who has any legal or beneficial interest in a Premise who submits an application to the City of Vienna in an attempt to obtain or re-obtain a Certificate of Occupancy with respect to the Premises.
      (3)   “Application" shall mean the form or forms provided by the City of Vienna and completed by an Applicant, together with all required documents and items that the City of Vienna requires, by which the Applicant seeks to obtain a Certificate of Occupancy.
      (4)   "Certificate of Occupancy” shall mean a written document or renewals or amendments thereto based on an application issued to an applicant with respect to a Premises by the Code Enforcement Officer that evidence that such person and the Premises comply or conform with the provisions of this section.
      (5)   "City" means the City of Vienna.
      (6)   "Effective Date" means the date upon which this section becomes effective which shall be immediately upon the adoption hereof.
      (7)   "Existing Use" means the use or uses as a Video Lottery Establishment to which a parcel or parcels of land (or part thereof) within the C-1 Zoning District, or part or all of any Improvement thereon, that are lawfully pursued by a Video Lottery Permittee, before the effective date.
      (8)   "Improvement" means any structure or building with the designated use being a Video Lottery Establishment, whether or not existing, on the Effective Date located or, if there is a vested right to erect such structure or building with the designated use being a Video Lottery Establishment, to be located within the C-1 Zoning District.
      (9)   "Person" means any natural person or any corporation, association, partnership, limited partnership, limited liability company or other entity, regardless of its form, structure or nature.
      (10)   "Responsible Person" shall mean the individual person whom an applicant has designated to attest to the Truthfulness and accuracy of the contents of an application.
      (11)   "Video Lottery" means an electronically simulated game of chance that is approved, owned and controlled by the State Lottery Commission under W.Va. Code§ 29-22B-101 et seq. and which is further defined under W.Va. Code§ 29-22B-332.
      (12)   "Video Lottery " means an electronically simulated game of chance that is approved, owned and controlled by the State Lottery Commission under W.Va. Code §29-22B-101 et seq., and which is further defined under W.Va. Code§ 29-22B-332.
      (13)   "Video Lottery Establishment" means any improvement existing or to be constructed together with the lot, tract or parcel on which it is situated within the C-1 Zoning District that contains or is intended by a Video Lottery Permittee to contain one or more Video Lottery Terminals for public or private use.
      (14)   "Video Lottery Permittee" means any licensed person, including an operator or a video lottery retailer, that has a permit to own, lease or operate for profit or otherwise Video Lottery Terminals issued under W.Va. Code§ 29-22B-1101 through 29-22B-1113.
      (15)   "Video Lottery Terminal" means a State Lottery Commission approved machine or device that is compatible with the State Lottery Commission's central computer system and that is used for the purpose of playing video lottery games authorized by the State Lottery Commission by no more than one player at a time.
   (d)   Regulations.
      (1)   On or after the Effective Date, it shall be unlawful for any person to locate or establish a Video Lottery Establishment in or any improvement (or part thereof) as follows:
         A.   North of 20th Street;
         B.   Within 500 feet of any church, residence, school, pre-school, daycare facility or park between 10th Street and 20th Street;
         C.   Within 500 feet of any video lottery establishment between 10th Street and 20th Street.
      (2)   Permitted Locations. Video Lottery Establishments shall be permitted within the C-1 Zoning District south of 10th Street and between 10th Street and 20th Street subject to the provisions of paragraph (d)(1) as above.
      (3)   Measurement. All measurements shall be by horizontal feet, structure to structure by a straight line measurement. The beginning point shall be on the structure closest to the closest point on the structures adjacent thereto. In the case of a multiple use structure, the distance shall be from the closest point on that portion of the multiple use structure leased (or owned) for the purpose of day business as a video lottery establishment to the closest point on the structures adjacent thereto. ln the case of a park, the measurement shall be taken to the nearest boundary of the park to the structure proposed to be used as a video lottery establishment.
      (4)   Square Footage. Any applicant who intends to derive more than 50% of its gross revenues from video lottery gaming shall be limited to occupying a structure containing no more than 3,000 square feet, irrespective of the actual amount of square footage intended to be occupied by the Video Lottery Establishment. For purposes of this section “structure" is defined as a single free standing building which docs not contain individual and separate units available for occupancy.
   (e)   Administration and Enforcement.
      (1)   It shall be the duty of the Code Enforcement Officer of the City of Vienna, or his/her duly authorized agent, to administer and enforce the provisions of this section, except as otherwise expressly provided in this section.
      (2)   It shall be the duty of the Code Enforcement Officer to:
         A.   Receive and process any Application; and
         B.   Issue a Certificate of Occupancy upon an Application; and
         C.   Conduct investigations as necessary to determine compliance with or violation of this section;
         D.   Abate any violation of this section;
         E.   Assist law enforcement officer to abate or prosecute any violation of this section; and
         F.   Provide information about this section upon request of citizens and public agencies;
         G.   Pursue enforcement of this section as this section and other law provides; and
         H.   Administer this section in all respects;
   (f)   Application.
      (1)   Any person who desires to obtain a Certificate of Occupancy to own, lease, operate or manage a video lottery establishment shall designate a responsible person who shall make an application to the Code Enforcement Officer, or his or her designated agent, in accordance with this section.
An application shall include, without limitation, a copy of the site plan of the Premises and the existing or proposed Improvement or Improvements, together with a letter describing the proposed Video Lottery Establishment.
The site plan shall be drawn to a scale of one inch (1") equals fifty feet or larger and shall include the following data:
         A.   Name and address of the individual who prepared the site plan; the date of preparation, north point, and scale, a metes and bounds description of the site; tax district, map and parcel number, and the names and addresses of the applicant and the responsible person; and
         B.   Existing and proposed contours of the premises; and
         C.   Certification by a land surveyor or engineer that the dimensions and bearings on the site are accurately delineated and location of all easements and rights of ways with respect to the premises; and
         D.   Number and type of proposed improvements on the premises along with gross floor area of each improvement on the premises; and
         E.   Location, shape, exterior dimensions, and number of stories of each improvement on the premises; and
         F.   Location, grade, and dimensions of paved surfaces of the premises, and of all streets, alleys, roads and highways abutting the premises; and
         G.   Complete traffic circulation and parking plan; and
         H.   Signage plan; and
         I.   Sediment and Erosion Control Plan by the State of West Virginia if required; and
         J.   Drainage plan for the premises prepared by a registered professional engineer licensed to practice in the State of West Virginia; and
         K.   Certification of distances from adjacent properties.
      (2)   Exterior design and signage for each Video Lottery Establishment shall be approved by the Vienna City Planning Commission.
      (3)   The Code Enforcement Officer shall not accept an application unless the responsible person shall attest that all of the statements contained in the Application and all documents attached thereto are true and accurate in all material respects.
      (4)   The fee for the application shall be $100.00.
   
   (g)   Violation; Procedure; Penalty.
      (1)   If the Code Enforcement Officer finds that any of the provisions of this section are violated, he/she shall notify in writing the person responsible for such violation. Service of the written notice shall be deemed complete upon sending the notice by certified mail to the person named and at the address stated in the application.
         A.   Any such notice of a violation of this section shall include the following:
            1.   Street address or legal description of the property involved, including identification by the tax district and tax map and parcel numbers;
            2.   A statement of the nature of the violation;
            3.   A description of the action required to correct the violation;
            4.   A statement of the time within which compliance with this section must be accomplished; and
            5.   A statement that upon failure to comply with the requirements of the notice, the Code Enforcement Officer shall take such enforcement actions as this section authorizes.
         B.   The individual responsible for the violation shall have thirty (30) days to appropriately rectify the violation and comply with all terms of this section. If said individual is in compliance with this section within the thirty day period, there shall be no penalty assessed against that individual.
         C.   The Code Enforcement Officer may order discontinuance of any use of a parcel or parcels of land or any improvement that does not conform to this section by issuing a written order. The City of Vienna may seek other remedies provided by law, including, without limitation, injunction, and abatement by judicial proceeding.
         D.   Failure to rectify the violation within the time stated in this section shall, in addition to any remedy, be punishable by a fine not to exceed $1,000.00 a day upon the conviction thereof.
         E.   Nothing contained in this section shall be deemed to prevent the City of Vienna from seeking other lawful actions or remedies as provided by law.
   (h)   Appeal. Any person who is aggrieved by any order, requirement, decision or determination made by any administrative officer or body charged with the enforcement of this section may appeal the same to the Board of Zoning Appeals of the City of Vienna within the time and the manner prescribed by law and other similarly enacted ordinances.
   (i)   Abandonment of Non-Conforming Use. Not withstanding anything in this section to the contrary, if an existing use that is nonconforming with this section has been abandoned, any future use of such land or improvement shall conform with this section.
   (j)   Severability. If any clause, paragraph, subparagraph, section or subsection of this section shall be held to be invalid or unconstitutional by any court of competent jurisdiction, the remainder of this section shall not be affected thereby, and shall remain in full force and effect.
(Passed 4-13-06.)