It is the purpose of this chapter to promote
the health, safety, morals and general welfare of the citizens of
the Town of Wallkill and to establish reasonable and uniform regulations
regarding the location, concentration and operation of sexually oriented
businesses within the Town. It is neither the intent nor the effect
of this chapter to restrict or deny access by adults to sexually oriented
materials protected by the First Amendment, nor is it the intent of
this chapter to condone or legitimize the distribution of obscene
materials.
A.Â
It is declared that certain business enterprises,
known as "adult entertainment uses," by their very nature, possess
operational characteristics which, under certain circumstances, are
likely to cause serious secondary impacts on the community, including
impacts on the character of community, neighborhoods and adjoining
land uses.
B.Â
The Town Board of the Town of Wallkill finds that
special regulation of adult entertainment uses, regarding both location
and the nature of the business enterprises conducted therein, is necessary
to ensure that adverse secondary effects will not significantly impact
the public health, safety, welfare, quality of life and/or the character
and tranquility of the neighborhoods in or near which said uses are
located and the overall economic and social welfare of the Town of
Wallkill.
C.Â
The purpose of this chapter is to prevent or lessen
the secondary effects of adult entertainment uses, and not to inhibit
freedom of speech.
D.Â
The Town Board recognizes that the geographic area
both within and in proximity to the Town of Wallkill currently has
several different forms of adult entertainment uses that serve as
an outlet for free expression in the area.
E.Â
Prior to enactment of the revised Zoning Ordinance (Chapter 249) and Zoning Map in 2007, adult entertainment uses were restricted to locations within the MI Manufacturing and Industrial Zoning District.
F.Â
With the reconfiguration of MI Zoning District into the ENT-L Light Enterprise and ENT Enterprise Zoning Districts in 2007, it became apparent that the two-thousand-foot buffers that had been required for adult entertainment uses pursuant to Chapter 59, entitled "Adult Entertainment," might constrain locating adult enterprises, and further analysis was required.
G.Â
The Town Center ("TC") Zoning District was designated as a "place-holder" location for adult entertainment uses until after an analysis of the appropriate size of buffers for adult entertainment uses could take place, and Chapter 59 was revised to reflect that change, by Local Law No. 15-2007.
H.Â
To facilitate such analysis, the Town Board enacted
a legislative moratorium on adult entertainment uses, which is due
to expire on June 16, 2008.
I.Â
During the period of the Town of Wallkill's legislative
moratorium on adult entertainment uses, there have been no applications
for adult entertainment uses in the TC Zoning District.
J.Â
The 2005 Town of Wallkill Comprehensive Plan, which
was enacted two years prior to the 2007 Zoning Amendment, before the
MI Zoning District was replaced by the ENT and ENT-L Zoning Districts,
established as an immediate priority the development of performance
guidelines for transition areas between residential and MI Zoning
Districts. The need for these performance guidelines would clearly
apply to adult entertainment uses, as then allowed in the MI Zoning
District, and now, after relocation, to be allowed in the ENT-L Light
Enterprise Zoning District.
K.Â
The Town Board further recognizes that the two adult
entertainment uses known to be located within the Town of Wallkill
have been previously, and are now, preexisting nonconforming uses,
since neither one was located in the MI Zoning District nor is currently
located in the ENT-L Zoning District. The Town Board finds that regulation
of the preexisting nonconforming adult entertainment uses is in the
interest of the Town of Wallkill.
L.Â
The deleterious secondary effects of adult entertainment
uses on adjoining uses and properties have been demonstrated and documented
in reports and studies which have been undertaken or considered as
the basis of legislation in other communities in New York State, including
New York City; the Village of Scotia (Schenectady County); the Town
of New Paltz and the Village of New Paltz (Ulster County); the Town
of Clarkstown (Rockland County); the Town of Catskill (Greene County);
and nationwide, in Detroit, Michigan; Los Angeles, California; Jacksonville,
Florida; and in a "Summary of a National Survey of Real Estate Appraisers
Regarding the Effect of Adult Bookstores on Property Values," conducted
by the Division of Planning, Department of Metropolitan Development,
Indianapolis, Indiana, January 1984.
M.Â
These secondary effects include increased crime rates,
depreciation of property values, deterioration of community character
and adverse impact on the quality of life in surrounding residential
areas. These materials have been reviewed by the Town Board of the
Town of Wallkill, along with legislation enacted in other New York
State communities, including the Town of New Paltz, the Village of
New Paltz, the Town of Clarkstown, and Town of Catskill, as well as
the opinions expressed by local residents and business owners.
N.Â
Having reviewed the location and type of certain uses
that exist in the Town of Wallkill that are determined to be, by their
nature, particularly susceptible to the secondary impacts of adult
entertainment uses, including, but not limited to, dwelling units,
areas zoned for residential use, schools, religious institutions,
orphanages, parks, and cemeteries, the Town Board finds that such
"sensitive land uses" would be susceptible to the greater adverse
secondary impacts that have become associated with adult entertainment
uses that tend to result in the congregation of patrons at the location
of the use.
O.Â
The Board recognizes that the potential deleterious
effects of unrestrained proliferation and/or unregulated concentration
of adult entertainment uses is inconsistent with existing development
and future development plans for the Town of Wallkill, and that this
presents a threat to property values and the future economic vitality
of our business community.
P.Â
When the Town of Wallkill adopted its Comprehensive
Plan in 2005, the ENT-L Zoning District was not yet contemplated.
The 2005 Comprehensive Plan of the Town of Wallkill provided that
"Commercial development should be directed to locations appropriate
for the scale and intensity of commercial activity consistent with
the land use plan. Further, development should complement the community's
needs and enhance the overall quality of life for Wallkill residents"
and that industrial land uses should not "adversely affect the . .
. amenity of residential areas."
Q.Â
The Town Board finds that the performance standards for what is now the ENT-L Zoning District, which provide for "adult entertainment uses" as regulated by this Chapter 59, meet the requirement of the 2005 Town Comprehensive Plan for transition guidelines between residential and other uses in the MI Zoning District and its successors, the ENT and ENT-L Zoning Districts.
R.Â
The Town Board further recognizes that the presence
of preexisting nonconforming adult entertainment uses requires enactment
of regulation that balances preexisting nonconforming adult entertainment
uses with protecting, against the adverse impact of such secondary
effects, the neighborhoods in which or near which they are located,
and the community character of the Town of Wallkill.
S.Â
The Town Board therefore declares that the regulation of adult entertainment uses as set forth in this Chapter 59, including the licensing of sexually oriented businesses as provided in Article III, shall be adopted to accomplish the purpose of preventing and mitigating the potential deleterious secondary effects of certain adult entertainment uses on the community and providing transitional performance guidelines for the location of such uses in the Town of Wallkill, while carrying out the dual intent of this chapter neither to restrict nor deny access by adults to sexually oriented materials protected by the First Amendment, nor to condone or legitimize the distribution of obscene materials.
As used in this chapter, the following terms
shall have the meanings indicated:
An establishment for the sale or rental for use off-site
of any one or more of the following:
Books, magazines, periodicals or other printed
matter or photographs, films, motion pictures, videocassettes, videocassette
players, DVDs, DVD players, slides or other visual representations,
or recordings, lingerie, novelties and devices, which have, as their
primary or dominant theme, material depicting, illustrating, describing
or relating to specified sexual activities or specified anatomical
areas;
Instruments, devices or paraphernalia which
are designed for use in connection with specified sexual activities;
and
Having a substantial portion of said stock-in-trade
customarily not open to the public generally, and which excludes or
is required by law to exclude any minor by reason of age.
For purposes of this Chapter 59, an adult bookstore or video store is defined as an "adult entertainment use" if it meets the floor area criteria defined below.
Adult bookstore or video store criteria for
"adult entertainment use."
A bookstore or video store shall be declared
to be an adult entertainment use if either:
Greater than 25% of the floor area allocated
to such use is not available to the general public, in comparison
to the retail floor area available to customers without restriction
because of age; or
Greater than 50% of all merchandise is not available
to the general public without restriction by reason of age.
Whichever guideline is more restrictive shall
apply.
A public or private establishment which presents nude or
seminude dancers, male or female impersonators or exotic dancers,
or other similar entertainment, and which is customarily not open
to the public generally but which excludes or is required by law to
exclude any minor by reason of age.
The use of any building, structure or land, or portion thereof, for any sexually oriented business as defined in this Chapter 59.
A theater that customarily presents motion-picture films,
videotapes, slide shows and live entertainments that are not open
to the public generally, but which excludes or is required by law
to exclude any minor by reason of age and in which a substantial portion
of the total presentation time is devoted to the showing of material
characterized by an emphasis upon the depiction or description of
specified sexual activities or specified anatomical areas.
The person applying for a license to conduct a sexually oriented
business.
The application for a license to operate a sexually oriented
business.
The licensed premises and also any part of a building in
which such premises are contained and any part of any other building
connected with such building by direct access or by a common entrance.
A person who works or performs or acts as an independent
contractor or agent in a commercial establishment, irrespective of
whether said person is paid a salary or wage by the owner or manager
of the premises, or whether said person works for tips.
A license issued pursuant to this Chapter 59.
Any person to whom a license is issued pursuant to this Chapter 59.
Any establishment where massages are administered by unlicensed
practitioners, including massage parlors, sauna baths, and steam baths.
This definition shall not be construed to include
a hospital, nursing home, medical clinic or other lawfully established
office providing therapeutic massage by a duly licensed health care
professional, such as a physician, surgeon, chiropractor, osteopath
or physical therapist.
This definition shall not be construed to include
barbershops or beauty salons in which therapeutic massages are administered
only to face, scalp, neck, and shoulders. This definition shall not
be construed to include any individual holding a New York State Department
of Education license as a masseuse or masseur who maintains a professional
practice, including a professional practice conducted in a private
residence in the Town of Wallkill.
This definition also excludes health clubs which
have facilities for exercise, such as tennis courts, racquetball courts
or exercise rooms, or similar facilities, and which do not receive
their primary source of revenue from the administration of massages.
The person who owns a sexually oriented business.
The use of any building or portion of a building to present,
for consideration, material in the form of live shows, or any other
medium involving a live person, depicting, describing or relating
to specified sexual activities or specified anatomical areas, viewed
from an individual room or similar enclosure which is not open to
the public generally, but excludes or by law is required to exclude
any minor by reason of age.
An individual, partnership, corporation or other legal entity.
The premises licensed pursuant to this chapter and on which
a sexually oriented business may be operated.
A building which is used primarily for religious worship
and related religious activities, including administrative rooms accessory
thereto.
When used in the discussion of sexually oriented business
establishments, includes any area inside the Town of Wallkill which
is included in any of the following zoning districts: RA Rural Agricultural,
RA-1 Low-Density Agricultural, R-2 Suburban Residential, R-1 Medium-Density
Residential, R-M(B) Multiple-Family (Bonus) Residential, R-AH Residential
(Floating Zone), APR Airport Residential, NC Neighborhood Commercial,
and any zoning district to be established in the future which is primarily
intended for dwellings.
An institution of learning for minors, whether public or
private or parochial, which offers instruction in those courses of
study required under the Education Law of the State of New York, or
which is maintained pursuant to standards set by the State Board of
Regents or State Education Department. This definition includes a
nursery school, kindergarten, elementary school, junior high school,
senior high school or any special institution of learning under the
jurisdiction of the State Department of Education, but it does not
include a vocational or professional institution or an institution
of higher education, including a community or junior college, college
or university.
The use of a parcel of land for certain uses determined to
be, by their nature, particularly susceptible to the secondary impacts
of adult entertainment uses, including but not limited to residences,
schools, religious institutions, orphanages, parks, and cemeteries,
and areas zoned or to be zoned in the future for residential use.
Any commercial activity which sells, rents, shows, exhibits,
or makes available for sale, rent, showing or exhibition, any material
or entertainment distinguished or characterized by an emphasis on
depicting or describing specified anatomical areas or of specified
sexual activity and shall include, but not be limited to, adult bookstores
or video stores, adult entertainment cabarets, massage establishments,
peep shows, and adult theaters.
Less than completely and opaquely covered human genitals
and pubic region and human male genitals in a discernible turgid state
even if completely and opaquely covered. Human buttocks shall not
be required to be completely and opaquely covered; however, the gluteal,
anal, or natal cleft between the buttocks shall be covered with a
g-string, thong, or similar apparel or costuming.
Human genitals in a state of sexual stimulation or arousal;
or acts of human masturbation, sexual intercourse, oral copulation
or sodomy; or fondling or other erotic touching of human genitals,
pubic region, buttocks or breasts.
Also known as a "lap dance" or "face dance." The use by an
employee, whether clothed or not, of any part of his or her body to
massage, rub, stroke, knead, caress or fondle the genital or pubic
area of a patron while on the premises, or the placing of the genital
or pubic area of an employee in contact with the face of a patron
while on the premises.
