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STAFF REPORT

Town Council Meeting, February 25, 2010

LDO Amendments – Round 13, Item G (PL10-006h)
Consideration of a proposed amendment to the Land Development Ordinance pertaining to adult businesses.

Speaker: Ms. Mary Beerman

From: Jeffery G. Ulma, AICP, Planning Director

Prepared by: Mary W. Beerman, AICP, Senior Planner

Approved by: Benjamin T. Shivar, Town Manager

Approved by: Michael J. Bajorek, Assistant Town Manager

Executive Summary: As initially proposed, the amendment would allow adult uses by right in the Office/Research and Development zoning district within the Airport Overlay District provided that the use-specific standards of Section 5.2.3(M) are satisfied. Adult uses would be eliminated as a Special Use in the General Commercial District and Town Center District. Revisions to definitions for Adult Business and Massage Business are also proposed to be more consistent with emerging practices and case law.

Schedule for LDO Amendments- Round 13, Item 13G:

Planning and Development Committee	August 20, 2009
Advertisements in The Cary News	October 7, 2009 October 14, 2009
Public Hearing	October 22, 2009
Planning and Zoning Board Work Session	November 9, 2009
Planning and Zoning Board Meeting	December 21, 2009
Town Council	January 28, 2010
Town Council	February 25, 2010
Effective	Upon Adoption

Occasionally, the Town receives inquiries from potential operators of adult business about the Town’s regulations. Such requests prompt questions about how the Town regulations accommodate constitutionally-protected uses. Mr. David Owens of the School of Government, in his book Land Use Law in North Carolina, suggests that in addition to allowing adult businesses in certain districts as a special use, a local government might consider allowing adult uses by right in a specified zoning district.

Having reviewed other North Carolina municipal ordinances and court decisions, the zoning map and the Comprehensive Plan, staff prepared an amendment to the LDO that responded to these issues and addressed maintenance of property values and prevention of harmful secondary impacts such as blight, traffic, litter and crime.

The originally-proposed amendment included revisions to definitions for Adult Business and Massage Business to be more consistent with language found in the General Statutes.

An alternative that was originally proposed for consideration would allow adult businesses by right in the ORD district within the Airport Overlay District, while eliminating adult business as a special use in the General Commercial and Town Center zoning districts. Since the January Town Council meeting, staff has added language to the definition of “Massage Business” to include bodywork therapy.

Town Council Public Hearing

The Town Council public hearing was held on October 22, 2009. There were no comments or discussion on this item at the public hearing.

Planning and Zoning Board Worksession

The proposed amendment was presented at the Planning and Zoning Board work session on November 9, 2009. There were questions related to the purpose of the amendment. Staff responded that the changes reflected terminology and definitions found in the General Statutes and emphasized that the goal of the amendment is to have processes in place that reflect current approaches to regulating adult businesses and strengthen the ordinance against possible legal challenge.

Board members suggested that the definition of adult business be revised to specifically exclude massage business as defined in Section 12.3.4(L)(4).

Changes Since Planning and Zoning Board Worksession

The definition of adult business was revised to specifically exclude massage business as defined in Section 12.3.4(L)(4).

Planning and Zoning Board Meeting and Recommendation

There was discussion regarding whether or not the proposed alternative to allow adult use by right in the ORD district within the Airport Overlay district would achieve the goal of strengthening the LDO. There was further discussion concerning appropriateness of the airport overlay district as an area where an adult business could be allowed by right. Staff pointed out that several of the uses required to be separated from adult uses are prohibited in the Airport Overlay district. That was the rationale for proposing the Airport Overlay district as an area where adult uses could be allowed by right, subject to use separation and other requirements specific to adult uses. Board members pointed out that there are relatively few residences in the airport overlay, but that there are a number of hotels with ABC licenses.

The Planning and Zoning Board voted to recommend approval of the proposed amendment by a vote of 4-3.

Town Council Meeting

The Town Council discussed the proposed amendment at its meeting on January 28 and directed staff to: (i) modify the definition of “Massage Business” to add a reference to massage and bodywork therapy; (ii) remove adult business as a special use in the General Commercial and Town Center districts; and (iii) bring the item back to the next Town Council meeting for further discussion.

Staff Recommendation

Staff responded to the direction of the Town Council and recommends approval of Option 1, Option 2 or Option 3 as indicated below.

Option 1 (As originally proposed by staff). Approve changes to definitions and terminology, prohibit adult uses in the GC and TC districts, and allow adult uses as a permitted use in the ORD District within the Airport Overlay, or

Option 2 (As proposed by Town Council on January 28, 2010). Approve changes to definitions and terminology, and prohibit adult uses in the GC and TC districts; or

Option 3 Approve changes to definitions and terminology only. 

Note: Changes to section 10.6.3 and Table 7.8-1, which are included in all 3 options, were added after the Planning and Zoning Board meeting. Changes to these sections are for the sole purpose of utilizing the term “adult” business rather than “sexually-oriented” business for consistency with the NC General Statutes.

Chapter 12 RULES OF CONSTRUCTION. CLASSIFICATIONS AND DEFINITIONS

12.3 USE CLASSIFICATIONS

12.3.1 General…..

12.3.2 Residential Uses…..

12.3.3 Public/Institutional Uses…..

12.3.4 Commercial Uses

(L) Retail Sales and Service

(4) Massage Business

A commercial establishment where massage, alcohol rub, electric or magnetic treatment, or similar treatment is administered by a medical practitioner, physical

therapist, massage or bodywork therapist, or similar professional person licensed by the State and meeting the ethical and educational requirements specified by the American Massage Therapy Association, or equivalent national or state standards. These uses do not include sexually-oriented adult businesses.

(10) Sexually Oriented Adult Business

Any place defined as an "Adult Establishment" by North Carolina State Law, including,but not limited to, adult cabarets, domination parlors, and other similar commercial establishments that offer services that utilize sexually oriented paraphernalia, and except for the definition of "Massage Business" shall not include any establishment or business where massage is practiced that is a health club, exercise studio, hospital, physical therapy business or other similar health-related business. Sexually Oriented Business specifically includes, however, any Massage Business where "massages" are rendered by any person exhibiting "Specified Anatomical Areas" and/or where "massages" are performed on any client's "Specified Anatomical Areas." "Specified Anatomical Areas" are those defined by North Carolina State Law. Any business or enterprise that has as one of its principal business purposes or as a significant portion of its business an emphasis on matter and conduct depicting, describing, or related to anatomical areas and sexual activities specified in G.S. 14-202.10. The term “Adult Business” does not include “Massage Business” as defined in LDO Section 12.3.4(L)(4).

CHAPTER 5 USE REGULATIONS

LINK: OPTION 1 -- TABLE OF PERMITTED USES

5.2 USE-SPECIFIC STANDARDS

5.2.3(M) Sexually Oriented Adult Business

All sexually oriented adult businesses shall comply with the following standards:

(1) In the Mixed Use Overlay District, and the portion of the ORD district outside of the Airport Overlay District, adult businesses may be permitted with a special use permit (see Section 3.8) provided that:

(1) (a) No such business shall locate within 2,000 feet of any other sexually oriented adult business, as measured in a straight line from property line to property line;

(2) (b) No sexually oriented adult business shall be located within 1,000 feet of a church, public or private elementary or secondary school, child day care center or nursery school, public park, residences and/or residentially zoned property, or any establishment with an on-premise ABC license. The 1,000 foot distance shall be measured on a straight line from property line to property line, with no consideration as to intervening structures, roads or land forms;

(3) (c) There shall not be more than one sexually oriented adult business on the same property or in the same building, structure, or portion thereof;

(4) (d) No other principal or accessory use may occupy the same building, structure, property, or portion thereof with any sexually oriented adult business; and

(5) (e) Except for the signs permitted under Section 9.3 of this Ordinance, no other advertisements, displays or signs or other promotional materials shall be visible to the public from pedestrian sidewalks, walkways, or vehicular use areas

(2) In the portion of the ORD district within the Airport Overlay District, adult businesses shall be permitted by right subject to the use-specific standards listed in 5.2.3(M)(1)

4.2.2(L) ORD: Office/Research and Development District

The ORD district is established to provide locations for a wide range of employment generating office, institutional, research and development, and light manufacturing uses, and for certain other uses that could create significant adverse impacts if located in the vicinity of residential areas. The standards of this district are designed to ensure that such uses are developed in a manner compatible with the use and enjoyment of nearby properties, and to minimize potential nuisances or damage to the environment. In addition, by allowing a wide range of permitted uses, this district is intended to accommodate the development of "flex space" arrangements, wherein the developer can establish different combinations of uses on a site over time, as the market dictates, as long as all uses and development conform to the standards established by the Town to protect adjacent land uses and the natural environment.

10.3.6 Nonconforming Sexually Oriented Adult Businesses

Such uses shall not be rendered non-conforming in situations where any of the following apply:

(A) Any sexually oriented adult business that fails to comply with the location requirements of this Ordinance (see Section 5.2.3(M)) but that was lawfully operating before December 9, 1993 shall not be deemed to be in violation of this Ordinance.

(B) A sexually oriented An adult business operating lawfully is not rendered in violation of this Ordinance by the subsequent location of a church, public or private elementary school, child day care or nursery school, public park, residential district, or an establishment having a North Carolina ABC license within 1,000 feet of the sexually oriented business.

(C) If a nonconforming sexually oriented adult business is discontinued for a period of 30 consecutive days or more, then the property shall be thereafter occupied and used only for a conforming use. If a nonconforming use of property is discontinued, but re-established within thirty days, then the nonconforming use may continue, provided that the nature and degree of the nonconformity will not be changed or increased from that which existed before the nonconforming use was discontinued.

TABLE 7.8-1: OFF-STREET PARKING SCHEDULE "A"
("du" = dwelling unit; "sf" = square feet)
	Land Use	Number of Motor Vehicle Spaces	Number of Bike Spaces
COMMERCIAL USES (NOTE: Motor vehicle spaces listed for commercial uses are maximums. Refer to Section 7.8.2[C][4] for exceptions to this requirement.)
Retail Sales and Service	Sexually-oriented Adult business	1 per each 200 sf	1 rack, or 1 rack per 100 auto spaces*

CHAPTER 5 USE REGULATIONS

LINK: OPTION 2 -- TABLE OF PERMITTED USES

5.2 USE-SPECIFIC STANDARDS

5.2.3(M) Sexually Oriented Adult Business

All sexually oriented adult businesses shall comply with the following standards:

((1) (a) No such business shall locate within 2,000 feet of any other sexually oriented adult business, as measured in a straight line from property line to property line;

(2) (b) No sexually oriented adult business shall be located within 1,000 feet of a church, public or private elementary or secondary school, child day care center or nursery school, public park, residences and/or residentially zoned property, or any establishment with an on-premise ABC license. The 1,000 foot distance shall be measured on a straight line from property line to property line, with no consideration as to intervening structures, roads or land forms;

(3) (c) There shall not be more than one sexually oriented adult business on the same property or in the same building, structure, or portion thereof;

(4) (d) No other principal or accessory use may occupy the same building, structure, property, or portion thereof with any sexually oriented adult business; and

(5) (e) Except for the signs permitted under Section 9.3 of this Ordinance, no other advertisements, displays or signs or other promotional materials shall be visible to the public from pedestrian sidewalks, walkways, or vehicular use areas

Chapter 12 RULES OF CONSTRUCTION. CLASSIFICATIONS AND DEFINITIONS

12.3 USE CLASSIFICATIONS

12.3.1 General…..

12.3.2 Residential Uses…..

12.3.3 Public/Institutional Uses…..

12.3.4 Commercial Uses

(L) Retail Sales and Service

(4) Massage Business

A commercial establishment where massage, alcohol rub, electric or magnetic treatment, or similar treatment is administered by a medical practitioner, physical

therapist, massage and bodywork therapist, or similar professional person licensed by the State and meeting the ethical and educational requirements specified by the American Massage Therapy Association, or equivalent national or state standards. These uses do not include sexually-oriented adult businesses.

(10) Sexually Oriented Adult Business

Any place defined as an "Adult Establishment" by North Carolina State Law, including,but not limited to, adult cabarets, domination parlors, and other similar commercial establishments that offer services that utilize sexually oriented paraphernalia, and except for the definition of "Massage Business" shall not include any establishment or business where massage is practiced that is a health club, exercise studio, hospital, physical therapy business or other similar health-related business. Sexually Oriented Business specifically includes, however, any Massage Business where "massages" are rendered by any person exhibiting "Specified Anatomical Areas" and/or where "massages" are performed on any client's "Specified Anatomical Areas." "Specified Anatomical Areas" are those defined by North Carolina State Law. Any business or enterprise that has as one of its principal business purposes or as a significant portion of its business an emphasis on matter and conduct depicting, describing, or related to anatomical areas and sexual activities specified in G.S. 14-202.10. The term “Adult Business” does not include “Massage Business” as defined in LDO Section 12.3.4(L)(4). 

10.3.6 Nonconforming Sexually Oriented Adult Businesses

Such uses shall not be rendered non-conforming in situations where any of the following apply:

(A) Any sexually oriented adult business that fails to comply with the location requirements of this Ordinance (see Section 5.2.3(M)) but that was lawfully operating before December 9, 1993 shall not be deemed to be in violation of this Ordinance.

(B) A sexually oriented An adult business operating lawfully is not rendered in violation of this Ordinance by the subsequent location of a church, public or private elementary school, child day care or nursery school, public park, residential district, or an establishment having a North Carolina ABC license within 1,000 feet of the sexually oriented business.

(C) If a nonconforming sexually oriented adult business is discontinued for a period of 30 consecutive days or more, then the property shall be thereafter occupied and used only for a conforming use. If a nonconforming use of property is discontinued, but re-established within thirty days, then the nonconforming use may continue, provided that the nature and degree of the nonconformity will not be changed or increased from that which existed before the nonconforming use was discontinued.

TABLE 7.8-1: OFF-STREET PARKING SCHEDULE "A"
("du" = dwelling unit; "sf" = square feet)
	Land Use	Number of Motor Vehicle Spaces	Number of Bike Spaces
COMMERCIAL USES (NOTE: Motor vehicle spaces listed for commercial uses are maximums. Refer to Section 7.8.2[C][4] for exceptions to this requirement.)
Retail Sales and Service	Sexually-oriented Adult business	1 per each 200 sf	1 rack, or 1 rack per 100 auto spaces*

Chapter 12 RULES OF CONSTRUCTION. CLASSIFICATIONS AND DEFINITIONS

12.3 USE CLASSIFICATIONS

12.3.1 General…..

12.3.2 Residential Uses…..

12.3.3 Public/Institutional Uses…..

12.3.4 Commercial Uses

(L) Retail Sales and Service

(4) Massage Business

A commercial establishment where massage, alcohol rub, electric or magnetic treatment, or similar treatment is administered by a medical practitioner, physical

therapist, massage and bodywork therapist, or similar professional person licensed by the State and meeting the ethical and educational requirements specified by the American Massage Therapy Association, or equivalent national or state standards. These uses do not include sexually-oriented adult businesses.

(10) Sexually Oriented Adult Business

Any place defined as an "Adult Establishment" by North Carolina State Law, including,but not limited to, adult cabarets, domination parlors, and other similar commercial establishments that offer services that utilize sexually oriented paraphernalia, and except for the definition of "Massage Business" shall not include any establishment or business where massage is practiced that is a health club, exercise studio, hospital, physical therapy business or other similar health-related business. Sexually Oriented Business specifically includes, however, any Massage Business where "massages" are rendered by any person exhibiting "Specified Anatomical Areas" and/or where "massages" are performed on any client's "Specified Anatomical Areas." "Specified Anatomical Areas" are those defined by North Carolina State Law. Any business or enterprise that has as one of its principal business purposes or as a significant portion of its business an emphasis on matter and conduct depicting, describing, or related to anatomical areas and sexual activities specified in G.S. 14-202.10. The term “Adult Business” does not include “Massage Business” as defined in LDO Section 12.3.4(L)(4).

5.2 USE-SPECIFIC STANDARDS

5.2.3(M) Sexually Oriented Adult Business

All sexually oriented adult businesses shall comply with the following standards:

((1) (a) No such business shall locate within 2,000 feet of any other sexually oriented adult business, as measured in a straight line from property line to property line;

(2) (b) No sexually oriented adult business shall be located within 1,000 feet of a church, public or private elementary or secondary school, child day care center or nursery school, public park, residences and/or residentially zoned property, or any establishment with an on-premise ABC license. The 1,000 foot distance shall be measured on a straight line from property line to property line, with no consideration as to intervening structures, roads or land forms;

(3) (c) There shall not be more than one sexually oriented adult business on the same property or in the same building, structure, or portion thereof;

(4) (d) No other principal or accessory use may occupy the same building, structure, property, or portion thereof with any sexually oriented adult business; and

(5) (e) Except for the signs permitted under Section 9.3 of this Ordinance, no other advertisements, displays or signs or other promotional materials shall be visible to the public from pedestrian sidewalks, walkways, or vehicular use areas. 

10.3.6 Nonconforming Sexually Oriented Adult Businesses

Such uses shall not be rendered non-conforming in situations where any of the following apply:

(A) Any sexually oriented adult business that fails to comply with the location requirements of this Ordinance (see Section 5.2.3(M)) but that was lawfully operating before December 9, 1993 shall not be deemed to be in violation of this Ordinance.

(B) A sexually oriented An adult business operating lawfully is not rendered in violation of this Ordinance by the subsequent location of a church, public or private elementary school, child day care or nursery school, public park, residential district, or an establishment having a North Carolina ABC license within 1,000 feet of the sexually oriented business.

(C) If a nonconforming sexually oriented adult business is discontinued for a period of 30 consecutive days or more, then the property shall be thereafter occupied and used only for a conforming use. If a nonconforming use of property is discontinued, but re-established within thirty days, then the nonconforming use may continue, provided that the nature and degree of the nonconformity will not be changed or increased from that which existed before the nonconforming use was discontinued.

TABLE 7.8-1: OFF-STREET PARKING SCHEDULE "A"
("du" = dwelling unit; "sf" = square feet)
	Land Use	Number of Motor Vehicle Spaces	Number of Bike Spaces
COMMERCIAL USES (NOTE: Motor vehicle spaces listed for commercial uses are maximums. Refer to Section 7.8.2[C][4] for exceptions to this requirement.)
Retail Sales and Service	Sexually-oriented Adult business	1 per each 200 sf	1 rack, or 1 rack per 100 auto spaces*

Fiscal Impact: Implementation of the proposed amendment can be absorbed by existing staff.