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HomeMy WebLinkAbout1996-10-22 - AGENDA REPORTS - 45 DAY MORATORIUM ORD 96 33 (2)AGENDA REPORT City Manager ApproN Item to be presented Glenn Adamick Iall 030COB 061D1:\1uQuel DATE: October 22, 1996 SUBJECT: ENACT A FORTY-FIVE DAY MORATORIUM ON ADULT USES AND A PROCESS ALLOWING APPLICATIONS FOR EXCEPTION TO THE MORATORIUM URGENCY ORDINANCE NO. 96-33 DEPARTMENT: Community Development BACKGROUND The City's Unified Development Code presently allows for adult businesses in the Community Commercial, Industrial Commercial and Industrial zones provided that a conditional use permit (CUP) is approved. Several court decisions in the last three years have rendered the existing requirements inadequate. The courts have found that a city or county cannot use the conditional use permit to regulate adult businesses due to the discretionary findings associated with granting such a permit and the lack of a specific time period within which the permit must be acted upon, The courts have determined that a city or county cannot establish an outright prohibition on adult uses and must evaluate a proposed adult use against non -discretionary findings or standards. If a request for an adult business were filed today and denied by the City under the existing conditional use permit findings, the applicant would have the ability to file a lawsuit challenging the decision and the decision would most likely be reversed. This reversal would permit the adult business in the proposed location regardless of the characteristics of the location (proximity to residential uses, church, school, etc.). The Community Development Department has recently received several inquiries concerning the locating of an adult business within the City. In response to this recent interest, the Planning Division and the City Attorney have prepared the attached forty-five day moratorium urgency ordinance for the Council's adoption. Adoption of this urgency ordinance would amend the City's existing adult business requirements and enact a £orty- five day moratorium on the commencement, establishment or filing of an application for an adult business. However, the urgency ordinance is required to contain a request for exception application and standards. This exception request would allow an adult business owner to file for an adult business during the moratorium period. This request would then be evaluated per the standards contained within the urgency ordinance and heard before the Planning Commission. These non -discretionary standards are contained within Section Four of the attached Urgency Ordinance and include distance requirements from residential zones Adopted: 16-24-96) Agent it `,o'k and uses, churches, schools and other adult businesses. Additionally, adult businesses could only be considered in the CC, CTC, IC and BP zones subject to the distance requirements and other requirements contained within the Urgency Ordinance. Overall, the moratorium is needed to provide staff and the attorney's office sufficient time to conduct the necessary studies and prepare a complete, legal adult business ordinance. Staff expects to return with a final adult business ordinance in November or December of this year. Waive further reading and adopt Ordinance No. 96-33 as a forty-five day moratorium on adult uses within the contained within the Urgency Ordinance. GEA:lep Council\aradlt.gea an urgency measure, enacting City subject to the provisions ORDINANCE NO. 96-33 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA CLARITA, CALIFORNIA, ENACTING FOR A PERIOD OF FORTY-FIVE DAYS IN ACCORDANCE WITH GOVERNMENT CODE SECTION 65858 A MORATORIUM ON ADULT USES AND AN EXCEPTION PROCESS ALLOWING APPLICATIONS FOR EXCEPTIONS AS TO ADULT USES WITHIN THE CITY OF SANTA CLARITA, DECLARING THE URGENCY THEREOF, AND FOR OTHER PURPOSES THE CITY COUNCIL OF THE CITY OF SANTA CLARITA DOES ORDAIN AS FOLLOWS: A. The provisions of the City's Municipal Code that regulate adult businesses are inadequate and need review, study, and probable revision. Such provisions fail to fully take into account the secondary effects that are associated with adult uses and fail to address the needs of the City and its residents today and in the future. B. Without the enactment of this moratorium and exception process, properties in the City could quickly receive entitlement to establish adult uses despite the fact that the City has determined that the City's Municipal Code is in need of updating and that studies need to be done to recommend new standards and revised Municipal Code sections to address adult uses. C. The City Council directs that all studies be pursued as expeditiously as is practical. In order to prevent the frustration of said studies and the implementation thereof, the public interest, health, safety, and welfare require the immediate enactment of this Ordinance. The absence of this Ordinance would create a serious threat to the orderly and effective implementation of any zoning amendments or amendments to the City's General Plan which maybe adopted by the City as a result of the studies, in that further development of adult uses within the City may be in conflict with or frustrate the contemplated updates and revisions to the City's zoning code or General Plan and may result in secondary effects from adult uses in conflict with the contemplated updates and revisions to the City's zoning code or General Plan. D. The City Council finds that this Ordinance is necessary in order to protect the City from the potential effects of adult business including crime, the protection of the City's retail trade, maintenance of property values, protection and preservation of the quality of the City's neighborhoods and the City's commercial districts, the protection of the City's quality of life, and the increased threat of the spread of sexually transmitted diseases. Experience in other portions of Southern California, including the County of Los Angeles and the Cities of Reston, Washington; Seattle, Washington; and Detroit, Michigan have demonstrated that such uses have objectional secondary effects upon immediately adjacent residential and commercial areas. The City recognizes and relies upon the experience of these other cities and counties in adopting adult business regulations including the County of Los Angeles [as discussed in Smith v. County of Los Angeles (1989) 211 Cal.App.3d 1881 ; City of Renton, Washington [as discussed in City of Renton v. Playtime Theatres. Inc. (1976) 475 U.S. 41]; and the City of Seattle, Washington [as discussed in Northend Cinema v. City of Seattle (1978) 90 Wash.2d 709, 585 p2d 11531 in support of this Ordinance. E. Experience in other portions of Southern California, and other cities and counties including Renton and Seattle, Washington and Detroit, Michigan have demonstrated that such adult uses when located in close proximity to one another have objectionable secondary effects on adjacent residential and commercial areas. F. The City Council finds that this Ordinance is immediately required to preserve the City, including the City's commercial and residential areas, from the possible secondary effects of adult businesses during the period of time necessary to complete the studies and revised zoning code. The City Council further finds the approval or establishment of any new adult business would result in the threat to the public health, safety, and welfare caused by the secondary effects of adult businesses which have caused the City to review its adult business regulations and impose this moratorium. The City Council further finds that inquiries have been made as to the establishment of adult businesses in the City. G. The City Council finds, determines, and declares that a current and immediate threat to the public health, safety, and welfare of the City and its citizens necessitates the immediate enactment of the Ordinance. The facts constituting such an urgency are set forth in Sections A -F, inclusive of this Ordinance.. H. The City Council further finds that this is a matter of City-wide importance and is not directed towards any particular parcel of property or proposed use. I. In adopting this Ordinance, the City Council intends that the provisions of this Ordinance have neither the purpose nor effects of imposing a limitation or restriction on the content of any communicative materials, including adult-oriented materials, that are protected by the First Amendment of the United States Constitution and the relevant provisions of the California State Constitution. THE CITY COUNCIL OF THE CITY OF SANTA CLARITA DOES ORDAIN AS FOLLOWS: SECTION ONE: REGULATED USES. No person shall commence or establish a business or use and no application for discretionary approvals shall be accepted by the City with regard to any of the following types of uses: - Massage Parlors - Adult Bookstores - Adult Theaters - Adult Arcades - Adult Hotel/Motels - Adult Cabaret - Adult Specialty Shops - Acupressure - Public Baths - Figure Modeling Studios - Adult Dance Studios SECTION TWO: REQUEST FOR EXCEPTION. Any person who desires to establish within the City a use which is prohibited from being established by the operation of this Ordinance may request an exception from the City. Any use which is granted an exception may be established in the City irrespective of the provisions of the Municipal Code referenced in Section A, above, of this Ordinance, which provisions are currently under study. All rights or privileges extended by the City in approving a request for exception shall expire one -hundred -twenty (120) days from the effective "date of the City ordinance(s) which replace this Ordinance, except as may otherwise be provided by state or federal law. Except as specifically set forth herein, the grant of a request for exception by the City shall not release the applicant from complying with any applicable federal, state, or local law or regulation. SECTION THREE: APPLICATION FOR REQUEST FOR EXCEPTION. An application for a request for exception shall be subject to the fee and procedures of a minor use permit request, pursuant to the findings contained within Section Four of this ordinance. SECTION FOUR: GRANT OR DENIAL OF EXCEPTION. The Planning Commission shall grant, conditionally grant, or deny a request for exception to the provisions of this Ordinance. The Commission shall approve an application for exception where the information submitted by the applicant substantiates the following findings: a. That the proposed use will be consistent with the General Plan of the City; any other adopted plan of the City, or the adopted plan of any other governmental agency; b. That the proposed site is adequate in size and shape to accommodate the yards, walls, fences, parking and loading facilities, landscaping, and other development features prescribed in the City's Municipal Code or as otherwise required in order to integrate said use with the uses in the surrounding area; C. That the proposed site is adequately served by highways or streets of sufficient width and improved as necessary to carry the kind and quantity of traffic that such use would generate; d. That the proposed site is adequately served by other public and private service facilities as are required; e. The subject site is located within one of the following zones: Commercial Town Center (CTC), Community Commercial (CC), Industrial Commercial (IC), or Business Park (BP) zone. The requested use at the proposed location will not be located within a five - hundred (500) foot radius to any residential zone or other property used for residential purposes, (hereinafter "residential zone."). The distance between a proposed use and a residential zone shall be measured between the nearest exterior wall of the proposed use, and the nearest lot line included within the residential zone, along a straight line extended between the two points. g. The requested use at the proposed location will not be located within a one thousand (1,000) foot radius of any other regulated use under this Ordinance. Distances between uses shall be measured between the nearest exterior walls or such uses or proposed uses along the shortest route intended and available for public traverse between said uses. h. The requested use at the proposed location will not be within one -thousand (1,000) feet of any existing church, park, or educational institution utilized by minors, hereinafter "Sensitive Use". The distance between a proposed use and a Sensitive Use shall be measured between the nearest exterior wall of the proposed use, and the nearest lot line included within the Sensitive Use, along a straight line extended between the two points. i. The requested use at the proposed location is sufficiently buffered in relation to residentially zoned areas within the immediate vicinity so as not to adversely affect such areas; j. The exterior appearance of the structure will not be inconsistent with the external appearance of commercial structures already constructed or under construction within the immediate neighborhood so as to cause blight, deterioration, or substantially diminish or impair property values within the neighborhood; and, k. The proposed use otherwise complies with the zoning and other regulations adopted by the City pertaining to adult businesses and adult uses. The Planning Commission shall deny the request for exception where the information submitted by the applicant fails to substantiate the above-described findings. The Planning Commission shall render a written decision on the request for exception within thirty (30) days of receiving a completed application for exception. The Director of Community Development shall determine whether an application is complete within five (5) working days of its submittal to the Community Development Department. SECTION FIVE: APPEAL OF PLANNING COMMISSION'S DECISION. Any interested person may appeal the decision of the Planning Commission to the City Council in writing within fifteen (15) days after the decision of the Planning Commission. Notice of the Planning Commission's decision shall be mailed to all property owners within five -hundred (500) feet of the proposed use. Consideration of an appeal of the Planning Commission's decision shall be at a public hearing which shall be advertised in accordance with Government Code Section 56090 and shall occur within thirty (30) days of the filing or initiation of the appeal. The City Council's decision shall be final and conclusive. Notice of the City Council's decision shall be mailed to the applicant and shall include citation to California Code of Civil Procedure § 1094.6. SECTION SIX: DEFINITIONS. In addition to the definitions contained in the City's Municipal Code, the following words and phrases shall, for the purposes of this Ordinance, be defined as follows, unless it is clearly apparent from the context that another meaning is intended. Should any of the definitions be in conflict with the current provisions of the City's Municipal Code, these definitions shall prevail: a. "Adult Motion Picture Arcade" shall mean any place to which the adult public is permitted or invited where coin or slug operated or electronically, electrically, or mechanically controlled amusement devices, still or motion picture machines, projectors or other image -producing devices are maintained to show images on a regular or substantial basis, where the images so displayed are distinguished or characterized by an emphasis on depicting or describing "speed sexual activities" or "specified anatomical areas." b. "Adult Bookstore" shall mean an establishment that devotes more than 15% of the total floor area,utilized for the display of books and periodicals to the display and sale of the following: books, magazines, periodicals, or other printed matter, or photographs, films, motion pictures, video. cassettes, slides, tapes, records, or other forms of visual or audio representations which are characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical instruments, devices or paraphernalia which are designed for use in connection with specified sexual activities. An adult bookstore does not include an establishment that sells books or periodicals as an incidental or accessory part of its principal stock -in -trade and does not devote more than 15% of the total floor area of the establishment to the sale of adult only books and periodicals. C. "Adult Business" shall mean any business which, because minors are excluded by virtue of their age as a prevailing business practice, is not customarily open to the general public, including but not limited to, an adult arcade, adult - bookstore, adult theater, cabaret, love parlor, massage parlor, model studio, nude studio, sexual catharsis center, sexual encounter shop, sexual novelty store or any other similar use wherein the preponderant business is the offering of services, materials and/or products which have as their dominant theme the sexual arousal, sexual gratification and/or sexual stimulation of a customer. This definition does not apply, nor shall be interpreted to apply, to any business conducted, operated by or employing licensed chiropractors, licensed physicians, licensed physical therapists, licensed psychologists, licensed social workers or licensed marriage and family counselors when performing functions under or pursuant to the respective license held. d. "Adult Cabaret" shall mean a nightclub, bar, theater, restaurant or similar establishment which regularly features live performances which are distinguished or characterized by an emphasis on specified sexual activities or by exposure of specified anatomical areas and/or which regularly features films, motion pictures, video cassettes, slides or other photographic reproductions which are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas for observation by patrons. e. "Adult Dance Studio" shall mean any establishment or business which provides for members of the public a partner for dance where the partner, or the dance, is distinguished or characterized by the emphasis on matter depicting, or describing or relating to "specified sexual activities" or "specified anatomical areas." L "Adult Hotel/Motel" shall mean a hotel, motel or similar establishment offering public accommodations for any form of consideration which provides patrons with closed-circuit televisions transmissions, films, motion pictures, video cassettes, slides or other photographic reproductions which are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas. g. "Adult Motion Picture Theater" shall mean an establishment, with the capacity of 50 or more persons, where, for any form of consideration, films, motion pictures, video cassettes, slides or similar photographic reproductions are shown, and in which a substantial portion of the total presentation time is devoted to the showing of material which is characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas for observation by patrons. h. "Fieure Modeling Studio" shall mean any establishment or business which provides for members of the public, the services of a live human model for the purpose of reproducing the human body, wholly or partially in the nude, by means of photograph, painting, sketching, drawing; or other pictorial form. i. "Material" relative to adult businesses shall mean and include, but not be limited to, accessories, books, magazines, photographs, prints, drawings, paintings, motion pictures, and pamphlets, or any combination thereof. j. "Massage Parlor shall mean any establishment as defined in Section 5-1-13 of the Codified Ordinances of the County of Los Angeles as the same were adopted by the City of Santa Clarita by Ordinance No. 96-33. k. "Specified Anatomical Areas" shall mean: (1) less than completely and opaquely covered: (a) human genitals, pubic region; (b) buttock; or, (c) female breast below a point immediately above the top of the areola; or, (2) human male genital in a discernibly turgid state, even if completely and opaquely covered. "Specified Sexual Activities" shall mean:. (1) the fondling or other touching of human genitals, pubic region, buttocks; anus, or female breasts; or (2) sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation, or sodomy; or (3) masturbation, actual or simulated; or (4) excretory functions as part of or in connection with any of the activities set forth in 1 through 3 above. SECTION SEVEN. If any section, subsection, subdivision, sentence, clause, phrase, or portion of this Ordinance, is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have adopted this Ordinance, and each section, subsection, subdivision, sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions thereof be declared invalid or unconstitutional. SECTION EIGHT: PUBLICATION. The City Clerk shall certify to the passage of this Ordinance and cause the same to be published in the manner prescribed by law. SECTION NINE: URGENCY MEASURE/EFFECTIVE DATE; This Ordinance shall be introduced, passed, and adopted at one and the same meeting as an urgency measure. As an urgency moratorium, this Ordinance shall become effective immediately and shall continue in full force and effect unless amended, repealed, or extended for a period of forty-five (45) days until December 5, 1996. The reasons for this urgency are declared and set forth in Paragraphs A -F and Sections 1-9, inclusive, of this Ordinance and same are incorporated herein by this reference. PASSED AND APPROVED this day of .1996. MAYOR ATTEST: CITY CLERK STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES )ss CITY OF SANTA CLARITA ) I, George A. Caravalho City Manager/Cit Clerk of the City of Santa Clarita, do hereby certify that the foregoing Ordinance No. 96-33 was duly adopted as an Urgency Ordinance at a regular meeting of the City Council on the day of October. 1996. by the following four-fifths vote, to wit: AYES: COUNCILMEMBERS NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: CITY CLERK