[HISTORY: Adopted by the Town Board of the
Town of Geneva 7-9-2002 by L.L. No. 2-2002. (This local law was adopted
as Ch. 166, but was renumbered to fit into the organizational scheme
of the Code.) Amendments noted where applicable.]
The purpose of this chapter is to promote the
health, safety, morals and general welfare of the citizens of the
Town of Geneva, New York and to establish reasonable and uniform regulations
regarding the location and concentration of sexually oriented businesses
within the Town of Geneva, New York. It is not the intent of this
chapter to impose a limitation or restriction on the content of any
communicative materials, including sexually oriented materials. It
is not the intent of this chapter to impose any restriction by any
adult to access of sexually oriented materials protected by the First
Amendment of the United States Constitution or Article 6 of the New
York State Constitution nor to deny access by the distributors and
exhibitors of sexually oriented entertainment to their intended market;
neither is it the intent nor the effect of this chapter to condone
or legitimize the distribution or dissemination of obscene materials.
A.
The Town Board has established a citizens committee
to study the effects of the establishment of an adult use or adult
entertainment business within the Town of Geneva and provided said
committee with resources to study the nature of business within the
Business Zones and the Industrial Zone in the town of Geneva and to
make recommendations to the Town Board relating to the effect of establishment
of adult use or adult entertainment business in said business districts.
B.
The Town Board has also examined legislative findings
of several communities in Upstate New York, including the City of
Geneva, NY, the City of Rochester, NY, and the City of Batavia, NY.
C.
Based upon the official report of said citizens committee,
a copy of which is filed with the Town Clerk, and findings of various
legislative bodies in upstate New York, the Town Board finds as follows:
(1)
The Town of Geneva is primarily a rural residential
community with a limited area for the operation of businesses. The
population at the last census is approximately 3,260. There are approximately
12,361 acres in the Town of Geneva with 65% of the land being agricultural,
25% residential, 3% business and 7% industrial.
(2)
The establishment of an adult use or adult entertainment
business should only be permitted by the issuance of a special use
permit and located only where other businesses are permitted and should
not be granted a special use permit to operate in a location that
currently or previously permits the operation of a business by reason
of a preexisting nonconforming use, a use variance or a special use
permit, nor should a special use permit for an adult use or adult
entertainment business be issued for a home occupation.
(3)
The Board finds that there are currently no known
adult use businesses established in the Town of Geneva
(4)
The current business zones are small in size, with
the B1 Zone and B2 Zones being only 352 acres. Both current business
zones border on residential zones and contain preexisting nonconforming
residential uses. The detrimental impact of an adult use on these
business zones would be magnified because of the small size of the
business zones.
(5)
The Industrial Zone contains 900 acres and is occupied
by actual industrial uses and nonconforming preexisting residential,
business or agricultural uses.
(6)
By reason that the Industrial Zone is greater in size
with a low-density impact, permitting the establishment of an adult
use in the Industrial Zone would have less negative impact on the
existing uses within that zone than if permitted in the business zones.
(7)
The regulation of adult use establishments, as hereinafter
defined, is found to be necessary in light of the operational characteristics
of such uses which, without the enactment and enforcement of appropriate
regulations, would have documented adverse, detrimental and harmful
impacts and effects within the Town of Geneva, and particularly on
residential neighborhoods and community business areas. Such impacts
and effects include but are not limited to decreased property values;
creation of traffic and/or parking problems due to the attraction
of transients; potential increases in criminal activities; loss of
business by non-adult-use commercial establishments in the vicinity,
and deterioration within residential and business neighborhoods creating
a general deterioration of quality of life within the Town of Geneva.
The words and phrases set forth below shall
have the meaning respectively ascribed to them:
Any place to which the public is permitted or invited or
in which coin-operated or slug-operated or electronically, electrically
or mechanically controlled still or motion-picture machines, projectors,
or other image-producing devices are maintained to show images to
an individual or individuals, and where the image is so displayed,
distinguished or characterized by the depicting or describing of specified
sexual activities or specified anatomical areas.
A commercial establishment having a substantial or significant
portion of its stock-in-trade, including but not limited to books,
magazines, periodicals, visual representations or writings, photographs,
videotapes, computer-generated images, devices or substances intended
to be used for sexual stimulation or material, distinguished or characterized
by emphasis on matter depicting, describing or related to specified
anatomical areas or to specified sexual activities or an establishment
with a segment or section devoted to the sale or display of such materials
or which is used for the dissemination of such material for consideration
by way of broadcast by radio, television telephone, internet or computer-generated
images or by means of other electronic-powered devices. A commercial
establishment may have other principal business purposes that do not
involve the offering for sale or rental of materials depicting or
describing specified sexual activities or specified anatomical areas
and still be defined as an adult retail store hereunder. Such other
business purposes will not serve to exempt such commercial establishment
from being characterized as an adult retail store so long as one of
its principal business purposes is the offering for sale or rental
for consideration the specified materials which depict or describe
specified sexual activities or specified anatomical areas.
A nightclub, bar, restaurant or similar commercial establishment
which regularly features:
Persons who appear in a state of nudity;
Live performances which are characterized by
the exposure of specified anatomical areas or by specified sexual
activities; or
Files, motion pictures, videocassettes, slides,
computer-generated images or other photographic reproductions which
are characterized by the depiction or description of specified sexual
activities or specified anatomical areas.
A hotel, motel or similar commercial establishment which:
Offers accommodations to the public for any
form of consideration, provides patrons with closed-circuit television
transmissions, films, or motion pictures, videocassettes, slides or
other photographic reproductions which are characterized by the depiction
or description of specified sexual activities or specified anatomical
areas;
Offers a sleeping room for rent for a period
of time that is less than 10 hours; or
Allows a tenant or occupant of the sleeping
room to sublet the room for a period of time that is less than 10
hours.
A commercial establishment where, for any form of consideration,
films, motion pictures, videocassettes, slides or similar graphic
reproductions are displayed, which are characterized by the depiction
or description of specified sexual activities or specified anatomical
areas.
A theater, concert hall, auditorium or similar commercial
establishment which regularly features persons who appear in a state
of nudity or live performances which are characterized by the depiction
or description of specified sexual activities or exposure of specified
anatomical areas.
One or more persons who are permitted to view a performance
for valuable consideration of, in or from a public place.
The exposing, placing, posting, exhibiting or, in any other
fashion, displaying in any location, whether public or private, material
or a performance in such manner that it may be readily seen and its
contents or character distinguished by normal unaided vision viewing
it from a public place or vehicle.
To manufacture, issue, publish, sell, lend, distribute, transmit,
broadcast, exhibit or present materials or to offer or agree to do
the same or to have in one's possession with intent to do the same.
A person who, for consideration, agrees or offers to act
as a companion, guide or date for any person or who agrees or offers
to privately model lingerie or privately perform a striptease for
another person.
person or business association who or which furnishes, offers
to furnish or advertises to furnish escorts as one of its primary
business purposes for a fee, tip or other consideration.
Includes any of the following:
The opening or commencement of any sexually
oriented business as a new business;
The conversion of an existing business, whether
or not a sexually oriented business, to any sexually oriented business;
The addition of any sexually oriented business
to any other existing sexually oriented business; or
The relocation of any sexually oriented business.
Any place where a person who appears in a state of nudity
or who displays specified anatomical areas is provided to be observed,
sketched, drawn, painted, sculptured, photographed or similarly depicted
by other persons who pay money or any form of consideration. It is
not intended to include in this definition a model studio operated
by an accredited school, college or university if the same is operated
as part of the regular art curriculum of said school, college or university.
Uncovered or less than opaquely covered post-pubertal human
genitals or pubic area, the post-pubertal human female breast below
the point immediately above the areola or the covered human male genitals
in a discernibly turgid state. For the purpose of this definition,
a female breast is considered uncovered if the nipple only or the
nipple and the areola only are covered.
Advertising or propagandizing in connection with the sale
of material, the offering of a service or the presentation or exhibition
of a performance by appealing to the prurient interest of potential
customers.
Any live or reproduced exhibition, including but not limited
to any play, motion-picture film, dance or appearance presented to
or performed before an audience.
Any of the streets, alleys, parks, boulevards, school or
other public property in the Town of Geneva or any dance hall, rental
hall, theater, amusement park, liquor establishment or depot, place
of public accommodation or other private property generally frequented
by the public for the purpose of education, recreation, amusement
entertainment, sport, shopping or travel, or any vehicle for public
transportation, owned or operated by government, either directly or
through a public corporation or authority or owned of operated by
any nongovernmental agency for the use, enjoyment or transportation
of the general public.
Flagellation or torture by or upon a person who is nude or
clad in undergarments or in a sexually revealing or bizarre costume;
or the condition of such person being fettered, bound or otherwise
physically restrained in an apparent act of sexual stimulation or
gratification.
Masturbation.
Sexual intercourse, whether genital-genital,
oral-genital, oral-anal or anal-genital.
Any erotic fondling or touching of any parts
of the covered or uncovered genitals, buttocks, pubic area or breasts
of the female or male.
Actual or simulated display or exhibition of
the human pubic area or genitals or any part thereof.
Sexual excitement, as hereinafter defined.
Sadomasochistic abuse, as hereinbefore defined.
A business or commercial enterprise that, as one of its primary
business purposes, offers for any form of consideration:
The facial expression, movements, utterances or other responses
of a human male or female, whether alone or with others, whether clothed
or not, who is in an apparent state of sexual stimulation or arousal
or who experiences the physical or sensual reactions of humans engaging
in or witnessing sexual conduct.
An adult arcade, adult bookstore, adult cabaret, adult motel,
adult motion-picture theater, adult theater, escort agency, nude model
studio or sexual encounter center or dissemination of sexually related
materials.
Human genitals; pubic region; buttocks; female breasts below
a point immediately above the top of the areola.
Human male genitals in a discernibly turgid state of sexual
stimulation or arousal; acts of human masturbation, sexual intercourse
or sodomy; fondling or other erotic touching of human genitals, pubic
regions, buttocks or female breasts.
Sexually oriented businesses are classified
as follows:
A.
A sexually oriented business, as that term is defined herein, shall not be established except in accordance with the provisions of the Code of the Town of Geneva, NY and subject to the following conditions and criteria, which shall be in addition to and supplementary to those matters which the Planning Board is to consider in reviewing a site plan application under Chapter 123 of said Code, a subdivision application under Chapter 136 and which shall also be in addition to and supplementary to those matters which the Zoning Board of Appeals is to consider in reviewing a special use permit application under Chapter 165 of said Code.
B.
Such use shall be permitted upon application for and final approval of a special use permit in conformance with this chapter and with § 165-72 of the Code of the Town of Geneva, NY and that the granting of the special use permit by the Zoning Board of Appeals shall require the following:
(1)
The sexually oriented business shall only be permitted
in the Industrial Zone and no special use permit for a sexually oriented
business shall be granted for establishment in any other zone in the
Town notwithstanding that a location may be currently operating a
business pursuant to a duly granted variance or a nonconforming preexisting
use or otherwise.
(2)
Such a use shall only be permitted in conformance
with current density requirements within the Industrial Zone.
(3)
Such a use may not be established or maintained within
500 feet of the following:
(a)
The property line of a church, synagogue, mosque
or other regular place of worship.
(b)
The property line of a public or private elementary
or secondary school.
(c)
The property line of any child-care institution
or day-care center, as defined herein and in the Education Law.
(d)
The property line of a residence, or the boundary
of any residential or agricultural zoning district.
(e)
The property line of a public or private park,
playground, playing field, governmental office or facility or other
similar area where large numbers of persons may travel or congregate.
(f)
A municipal boundary.
(4)
No two sexually oriented business may be established
or maintained within 1,000 feet of each other.
(5)
Only one sexually oriented business may be established
or maintained on any lot or in any building or structure
(6)
No sexually oriented business shall be located nearer
than 1000 feet to the boundary of any public use highway.
C.
For the purposes of this section, measurement of the distances specified above shall be made in a straight line, without regard to intervening structures or objects, from the nearest property line of the property upon which the sexually oriented business is located to the nearest property line or boundary of an affected use, as listed in Subsection B(1) through (6) above, provided that for purposes of Subsection B(4) and (6) above, the distance shall be measured in a straight line, without regard to intervening structures or objects, between the closest exterior walls of the structures in which each such use is located or from the closest exterior wall of the structure in which such use is located and the boundary of the public use highway, as the case may be.
Sexually oriented businesses shall be conducted
at all times in the following manner; otherwise the business shall
be deemed in violation of the special use permit and shall be subject
to the penalties provided:
A.
It shall be conducted in an enclosed building.
B.
It shall be conducted in such a manner that, regardless
of location or distance, no one who is passing by or who is at any
point outside of the enclosed building occupied by such a use shall
be able to observe or perceive any performance, conduct, image, printed
matter, visual representation, instrument, device or paraphernalia
displaying, depicting or otherwise presenting any specified anatomical
area or specified sexual activity regulated hereunder, including but
not limited to any sign or advertisement or any window or other opening
permitting the view of the interior of the premises from the exterior
of the premises.
C.
It shall not employ loudspeakers or sound equipment
as part of the adult use establishment in such a way as may be audible
or discerned by the public from public or semipublic areas or from
contiguous private property.
D.
It shall provide for the parking of vehicles on the
site only during the hours of operation and shall provide for a parking
space for each and every employee, in addition to those parking requirements
specified in the Code of the Town of Geneva, NY.
E.
It shall display no more than a single building-mounted
sign and a single pylon sign in conformance with the Code of the Town
of Geneva, NY, that shall identify only the name of the establishment
and shall contain no graphic representation of any material depicting,
describing or relating to specified sexual activities or specified
anatomical areas.
Final approval by the Zoning Board of Appeals
of any special use permit application for sexually oriented businesses
shall only be made contingent upon the applicant also satisfying all
conditions and requirements of approval by the Planning Board of any
site plan application or subdivision approval as provided for from
time to time in the Town Code or the laws of the State of New York
for such a use and upon compliance with the building code of the State
of New York as enforced by the Code Enforcement Officer of the Town
of Geneva.
A.
Prior to the commencement of any sexually oriented
business, or upon any transfer of ownership or control of such a business,
the premises on which such establishment is located must be inspected
and found to be in compliance with all laws, rules and regulations
of or enforced by the New York State Health Department, Fire Department,
Code Enforcement Office, Fire Marshal, and other code enforcement
officials of the Town and county.
B.
The New York State Health Department, Fire Department,
Code Enforcement Office, Fire Marshal and other code enforcement officials
shall complete their certification that the premises is in compliance,
or not in compliance, within 20 days of the inspection of the premises
by such officials. The certification shall be promptly presented to
the Code Enforcement Office and shall be a precondition to the issuance
of any certificate of occupancy, certificate of compliance or any
other certificate evidencing conformance with governmental laws, regulations,
codes, rules or requirements.
C.
An applicant, or permittee and/or licensee, shall
permit representatives of the Police Department, New York State Health
Department, Fire Department, Code Enforcement Office, or other Town
or county departments or agencies to inspect the premises of an adult
use establishment for the purpose of ensuring compliance with applicable
laws, rules and regulations at any time it is occupied or open for
business.
D.
While code enforcement officials shall have the right
to inspect the premises for the purpose of ensuring compliance with
all applicable laws, rules and regulations, the owner, agent or person
in charge thereof shall have the right to insist upon the procurement
of a search warrant from a court of competent jurisdiction in order
to enable such inspection. The officials charged with conducting the
inspection pursuant to this chapter shall be required to obtain a
search warrant whenever an owner, agent or person in charge refuses
to permit a warrantless inspection of the premises after having been
advised that he or she has a constitutional right to refuse entry
of the officials without a search warrant.
Whenever it shall become necessary for the Code Enforcement Officer or any officer of the Town of Geneva shall determine that Chapter 53, Adult Uses, of the Geneva Code shall be required to be enforced, the costs incurred by said officer for consultation fees with engineers, attorneys, or other professionals or costs incurred in enforcement of compliance with this Code, including but not limited to the costs of meeting the requirements of Article 6 of the Environmental Conservation Law (SEQR), and it shall be charged to the applicant or owner of the real property and shall be reimbursed by the applicant or owner of the real property before a building permit may be issued or a certificate of occupancy may be issued, and upon failure by the applicant or property owner to make such reimbursement, then said reimbursement costs levied pursuant to this chapter are hereby made a lien on the premises, and if the same are not paid within 30 days after they shall be deemed payable, the same shall be certified to the County Treasurer's office, which shall place the same on the real property tax roll for that year, with interest, and penalties allowed by law, and be collected as other taxes are collected.
If any part or provisions of this chapter or
the application thereof to any person or circumstance be adjudged
invalid by any court of competent jurisdiction, such judgment shall
be confined in its operation to the part or provisions or application
directly involved in the controversy in which such judgment shall
have been rendered and shall not affect or impair the validity of
the remainder of this chapter or the application thereof to other
persons or circumstances, and the Town Board of the Town of Geneva
hereby declares that it would have passed this chapter or the remainder
thereof had such invalid application or invalid provision been apparent.
B.
In addition to the penalties provided above, any violation
under this section shall be punishable by suspension of the right
to conduct or operate such adult use for a period not to exceed 30
days for each separate and distinct violation.
C.
In addition to the penalties provided above, the Code
Enforcement Office may also maintain an action or proceeding in the
name of the Town of Geneva in a court of competent jurisdiction to
compel compliance with or to restrain by injunction any violation
of this chapter.
