NPN Releases a Draft Adult-Use Zoning Law

NoPornNorthampton provides this draft zoning law for public comment. Its intent is to reduce the adverse secondary effects of certain sexually oriented businesses on health, neighborhoods and commerce while respecting civil liberties.

The proposed zoning law draws on similar laws put in place elsewhere in the US. These have been upheld in court as serving important public interests while respecting constitutional protections of expression. This proposed law has been prepared by NPN’s legal counsel and reviewed by other local counsel.

Update of August 5, 2006
Based on consultation with city officials, we have reduced the proposed buffer zone around adult theaters and live shows from 1,000 feet to 500 feet. This is to address concerns that the wider zone was too restrictive.

Update of August 8, 2006
After consulting with local residents, city officials, and Mark Carmien of Pride and Joy, we have decided to restrict our proposed ordinance to adult theaters, peep shows, and live nude shows. These adult uses appear to have the more serious “secondary effects” on their surroundings. Adult bookstores, video stores and paraphernalia stores are now excluded from consideration. In addition, the display of nudity needed to trigger the ordinance must be a significant portion of the material presented on 21 or more days per year. The intent is to make space for artistic expression. This standard is similar to the one Northampton put in place a few years ago to regulate nude dancing.

Future Updates Possible
As we get feedback from local officials and members of the community, we may further revise the proposed law. We will point out changes as we make them.

DRAFT ADULT-USE ZONING LAW FOR NORTHAMPTON

Part 1. PURPOSE AND INTENT

It is the purpose and intent of this Chapter of the Northampton Zoning Ordinance to address and mitigate the secondary effects of certain Adult Enterprises and sexually oriented businesses as referenced and defined below. Such secondary effects have been shown to include increased crime, adverse impacts on public health, adverse impacts on the property values of residential and commercial properties, and adverse impacts on the quality of life in the City, all of which secondary impacts are adverse to the health, safety, and general welfare of the City of Northampton and its inhabitants.

The provisions of this Chapter of the Northampton Zoning Ordinance have neither the purpose nor the intent of imposing a limitation or restriction on the content of any communicative matter or materials, including sexually oriented matter or materials. Similarly, it is not the purpose or intent of this Chapter of the Northampton Zoning Ordinance to deny access by adults to Adult Enterprises and to sexually oriented matter or materials protected by the Constitutions of the United States of America and of the Commonwealth of Massachusetts, nor restrict or deny rights that distributors or exhibitors of such matter or materials may have to sell, rent, distribute, or exhibit such matter or materials. Neither is it the purpose or intent of this Chapter of the Northampton Zoning Ordinance to legalize the sale, rental, distribution, or exhibition of obscene or other illegal matter or materials.


Part 2. DEFINITIONS

Except as specifically defined herein, the words and phrases used in this Ordinance carry their customary dictionary meanings unless clearly indicated by the text.

“Adult Enterprise” is defined to include the following uses:

(a) Adult Motion Picture Theatre: a building used for presenting material distinguished by an emphasis on matter depicting, describing, or relating to sexual conduct or sexual excitement as defined in Mass. Gen. L. Chapter 272, Section 31. This includes buildings containing “peep shows”, “viewing booths”, or larger theaters. The display of nudity must be a substantial or significant portion of the material presented on twenty-one or more days per year;

(b) Adult Entertainment Establishment: an establishment which displays entertainment which is distinguished or characterized by its emphasis depicting, describing, or relating to sexual conduct or sexual excitement as defined in Mass. Gen. L. Chapter 272, Section 31, including entertainment which features nude dancing, strippers or similar performers. The display of nudity must be a substantial or significant portion of such live entertainment on twenty-one or more days per year.

“Peep show” and “viewing booth” mean and include any booth, cubicle, room or stall within the premises of an Adult Enterprise used to view or display any adult-oriented materials, including but not limited to films, movies, photographs, books, magazines, slides, periodicals or other printed matter, CDs, DVDs, videotapes or reproductions of any kind, or for the use of any devices or paraphernalia which are designed for or used in connection with specified sexual activities as defined in Mass. Gen. L. Chapter 272, Section 31.

“Common area” means any room, rooms, hallways, passageways, or other areas accessible to patrons and customers within the Adult Enterprise.

“Operator” means any person, partnership, company, corporation or other entity operating, conducting or maintaining an Adult Enterprise.


Part 3. APPLICABILITY

This Chapter applies to all Adult Enterprises, as defined in Part 2 above. Any existing Adult Enterprise shall apply for an Adult Entertainment Special Permit, pursuant to Mass. Gen. L. Chapter 40A, Section 9A, and other applicable law, within 90 days of the effective date of this Chapter.


Part 4. SPECIAL PERMIT REQUIRED

Except as otherwise provided in this chapter, no Adult Enterprise shall be established or maintained in the City of Northampton unless the Planning Board grants a special permit for an Adult Enterprise to the owner or operator of such business. Procedures for issuing special permits are set forth in Section 10 of the Northampton Zoning Ordinance.


Part 5. INFORMATION REQUIRED

Each application for a special permit for an Adult Enterprise shall be submitted in accordance with the provisions of Section 10 of the Northampton Zoning Ordinance and Mass. Gen. L. Chapter 40A, Section 9A, and shall include the following information and supporting documentation:

(a) The legal name and address of the owner of the parcel on which the business will be established.

(b) The legal name and address of the applicant for the special permit for an Adult Enterprise.

(c) Adequate evidence of the applicant’s ownership or authority to use the premises for the purposes to be allowed by the special permit for an Adult Enterprise.

(d) A detailed property line plan, prepared by a Massachusetts Registered Land Surveyor, showing the location of the parcel for which the Adult Enterprise is proposed and that parcel’s precise distances from the following: the property line of any parcel currently used for a single- or multi-family dwelling, house of worship, school, day care facility, public playground, park, recreational facility, or other Adult Enterprise.

(e) The names and addresses of all abutters, and abutters of abutters up to 1,000 feet, as they appear upon the most recent tax list.

(f) A site plan prepared in accordance with the Northampton Zoning Ordinance and Planning Board regulations.


Part 6. CRITERIA FOR EVALUATION

No Special Permit may be granted by the Office of Planning and Development for an Adult Enterprise unless the following conditions are satisfied:

(a) Applicant Conditions:
The applicant, or anyone regularly employed on the premises, must not be a person convicted of contributing to the delinquency of a minor as defined in Mass. Gen. L. Chapter 119, Section 63, or any sex offense as defined in Mass. Gen. L. Chapter 272, including but not limited to prostitution, obscenity, child pornography, sexual performance by a child, public lewdness, indecent exposure,
sexual assault, and solicitation for sex.

(b) Location Conditions:
The parcel on which the Adult Enterprise is proposed must be located more than 500 feet from the property line of any parcel currently used for a single- or multi-family dwelling, house of worship, school, day care facility, public playground, park, recreational facility, or other Adult Enterprise. The 500 feet shall be measured from all property lines of the proposed use.

(c) Display Conditions:
No signs, graphics, pictures, publications, videotapes, CDs, DVDs, movies, covers, merchandise or other implements, items or advertising, depicting, describing or relating to sexual conduct or sexual excitement as defined in Mass. Gen. L. Chapter 272, Section 31 shall be displayed in the windows of, or on the building of, any Adult Enterprise, or be visible to the public from the pedestrian sidewalks or walkways or from other areas outside such establishments. All building openings, entries, and windows shall be screened in such a manner as to prevent visual access of the public to the interior of the Adult Enterprise.

(d) Minors:
No Adult Enterprise shall be allowed to disseminate adult matter to minors, cause or allow Adult Enterprise displays to be viewed by minors, or allow minors to linger on the premises.


Part 7. EXPIRATION OF PERMIT

No special permit for an Adult Enterprise may be issued for a period in excess of one year. The duration of the special permit shall begin on the effective date of the special permit as defined by Mass. Gen. L. Chapter 40A, Section 11.

A special permit issued under this Chapter shall lapse upon any one of the following occurrences:

(a) A change in the location of the Adult Enterprise;

(b) A sale, transfer or assignment of the business or the license;

(c) Any change in ownership or management of the applicant;

(d) Failure to begin a permitted Adult Enterprise within two years of the granting of such permit, except for “good cause”, such as the time necessary to await a court appeal to establish an Adult Enterprise.

In addition, an Adult Enterprise’s permit may be suspended or revoked upon a finding of:

(a) Violation of any of the provisions of this chapter;

(b) Violation of other health and safety regulations applicable to such businesses;

(c) Any illegal activity on the premises.


Part 8. SEVERABILITY/SAVINGS CLAUSE

If any section, phrase, sentence or portion of this Chapter is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion is deemed a separate, distinct and independent provision, and such holding does not affect the validity of the remaining sections, clauses, provisions, or portions of this Chapter.