§ 16.60.040.2. Uses not listed.

A.

Any use not listed as a permitted, special exception or accessory use in the use matrix is presumed to be prohibited within the zoning district. In addition to this general prohibition against the following uses, the City Council has made findings concerning reasons why the following uses are prohibited:

1.

Oil or natural gas wells including those that use hydraulic rock fracturing, acid fracturing, or any other type of well stimulation;

2.

The storage of any wastewater generated from a use using hydraulic fracturing, acid fracturing, or any other type of well stimulation;

The listing of specific uses herein is not intended to, nor shall it, suggest or be interpreted to mean that any other use not specifically listed here is, in any way, permitted or allowable. As clearly stated in this subsection, any use not listed in the use matrix is presumed to be prohibited. The doctrine of "expressio unius est exclusio alterius" shall not apply to this list.

B.

If a proposed use is not listed in the use matrix, and is not prohibited by these regulations (these regulations allow some uses in some districts or locations but prohibit them, or some variation of the use, in others) or by law, a property owner may apply to the POD for a determination that the proposed use is materially similar to a use that is listed. The uses specifically listed in subsection A are not materially similar to any use listed in the use matrix. Should the POD determine that a proposed use is materially similar to a use that is listed, such determination shall be reduced to writing and copies shall be transmitted to the property owner and filed with the City Clerk. In such event, the regulations governing the proposed use shall be the same as the regulations governing the use determined to be materially similar. Should the POD determine that a proposed use is not materially similar to a use that is listed in the use matrix, the proposed use will be deemed a prohibited use.

C.

The POD may determine that a use is materially similar if:

1.

The use is listed as within the same structure or function classification as a use specifically enumerated in the use matrix, as determined by the Land Based Classification Standards (LBCS) of the American Planning Association.

2.

If the use cannot be located within one of the LBCS structure or function classifications, the POD shall refer to the North American Industry Classification Manual (Executive Office of the President, Office of Management and Budget, 1997 or current edition) (NAICS). The use may be considered materially similar if it falls within the same industry classification of the NAICS.

3.

In order to assist in interpretation of the use matrix, the LBCS and NAICS numbers are identified for some uses in the use matrix. In interpreting the use matrix, the following rules of construction apply:

a.

If a use is listed for a specific classification, while a more general classification within the same industry classification is also listed for another use, the specific classification governs. The specific use is not necessarily allowable in all districts where the uses coded to the general classification are allowable simply because they share a similar LBCS or NAICS code number.

b.

Some uses are listed separately, but fall within the same LBCS or NAICS classification. The uses within one such classification are not necessarily allowable in all of the zoning districts as the others simply because they fall within the same LBCS or NAICS classification.

4.

The proposed use shall not generate average daily trips exceeding other uses allowed in the zoning district by more than ten percent, as determined by the Institute of Transportation Engineers, Trip Generation (6th edition, 1997, or current edition) (the ITE manual). The POD may also refer to similar local traffic studies.

D.

Decisions of the POD may be appealed to the Community Planning and Preservation Commission.

(Code 1992, § 16.60.040.2; Ord. No. 100-H, § 4, 12-19-2013; Ord. No. 246-H, § 23, 10-20-2016)