A.
It has been documented in numerous other towns and cities throughout
the Commonwealth of Massachusetts and elsewhere in the United States
that adult entertainment establishments are distinguishable from other
business uses and that the location of adult entertainment uses degrades
the quality of life in the areas of a community where they are located.
Studies have shown secondary impacts such as increased levels of crime,
decreased tax base, and blight resulting from the clustering and concentration
of adult entertainment uses. Late night noise and traffic also increase
due to the late hours of operation of many of these establishments.
This bylaw is enacted pursuant to M.G.L. ch. 40A, § 9, and
the Home Rule Amendment to the Massachusetts Constitution with the
purpose and intent of regulating and limiting the location of adult
entertainment establishments (as defined herein) so as to prevent
the secondary effects associated with these establishments, and to
protect the health, safety, and general welfare of the present and
future inhabitants of the Town of Bellingham.
B.
The provisions of this article have neither the purpose nor 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 article to restrict
or deny access by adults to adult uses and to sexually oriented matter
or materials protected by the Constitutions of the United States of
America and of the Commonwealth of Massachusetts, nor to 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 article to legalize the
sale, rental, distribution or exhibition of obscene or other illegal
matter or materials.
As used in this article, the following terms shall have the
meanings indicated:
An establishment, a building or portion thereof, or a use
of land having a substantial or significant portion of its business
activity, stock-in-trade, or other matter or materials for sale, rental,
distribution or exhibition, which are distinguished or characterized
by their emphasis on depicting, describing or relating to sexual conduct
or sexual excitement as defined in M.G.L. ch. 272, § 31,
including but not limited to the following:
ADULT BOOKSTOREAn establishment having as a substantial or significant portion of its stock-in-trade, books, magazines, and other matter which are distinguished or characterized by their emphasis on depicting, describing or relating to sexual conduct or sexual excitement as defined in M.G.L. ch. 272, § 31;
ADULT CLUBAn establishment having as any of its activities or entertainment a person or persons performing in a state of nudity or distinguished by an emphasis on matter depicting, describing or relating to sexual conduct or sexual excitement as defined in M.G.L. ch. 272, § 31;
ADULT ENTERTAINMENT ESTABLISHMENTAn establishment offering activities or goods or providing services where employees, entertainers or patrons are engaging in nudity, sexual conduct or sexual excitement as defined in M.G.L. ch. 272, § 31;
ADULT MOTION PICTURE THEATERAn establishment used for presenting material distinguished by an emphasis on matter depicting, describing or relating to sexual conduct or sexual excitement as defined in M.G.L. ch. 272, § 31;
ADULT PARAPHERNALIA STOREAn establishment having as a substantial or significant portion of its stock devices, objects, tools or toys which are distinguished or characterized by their association with sexual activity, including sexual conduct or sexual excitement as defined in M.G.L. ch. 272, § 31;
ADULT VIDEO STOREAn establishment having as a substantial or significant portion of its stock-in-trade videos, movies or other film materials which are distinguished or characterized by their emphasis on depicting, describing or relating to sexual conduct or sexual excitement as defined in M.G.L. ch. 272, § 31.
As used in this article shall mean any of the following:
Twenty percent or more of the business inventory or stock of
merchandise for sale, rental, distribution or exhibition during any
period of time;
Twenty percent or more of the annual number of gross sales,
rentals or other business transactions; or
Twenty percent or more of the annual gross business revenue.
No adult use shall be allowed except by a special permit granted
by the Planning Board. The Planning Board shall grant a special permit
for an adult use in any district permitting such use only if the use
is found by the Planning Board to comply with the following standards
and procedures:
A.
Location. An adult use may not be located:
(1)
Within 500 feet of a boundary line of a residential zoning district
or of a property line of a lot containing a residential use;
(2)
Within 1,000 feet of any structure containing, at the time of
special permit application, a church or other religious use, public
school, private kindergarten or school, child-care facility, park,
playground, any recreational area, public library, cultural facility,
museum, elderly housing, assisted living facility, nursing home, or
adult day-care facility:
(3)
Within 1,000 feet of any structure containing, at the time of
special permit application, an establishment licensed under the provisions
of M.G.L. ch. 138, § 12;
(4)
Within 1,000 feet of any structure containing any other adult
use;
(5)
Within 200 feet of an interstate highway, arterial street or
a street with average daily traffic greater than 2,000 vehicle trips
per day.
(6)
So that the building and/or signage associated with an adult
use will be visible from an interstate highway, arterial street or
a street with average daily traffic greater than 2,000 vehicle trips
per day.
B.
Site development standards.
(1)
Development plan review. No special permit for any adult use shall be issued without development plan approval first having been obtained from the Planning Board under § 240-16 hereof.
(2)
Parking and loading. On-site parking and loading shall be provided in accordance with the requirements set forth in Article X of these bylaws as pertains to service establishments.
(3)
Landscaping. At a minimum, the property on which an adult use
is proposed to be located shall contain a landscaped buffer strip
along its entire perimeter, except that portion directly abutting
a public street. Said buffer strip shall have a twelve-foot minimum
depth and contain a curb to prevent parking within the strip, a six-foot-high
fence which shall be located a maximum of two feet from the abutting
lot lines and contain an evergreen hedge on the adult use side of
the fence which is to be at least three feet in height at the time
of planting and will provide a year-round dense visual screen and
attain a height of at least seven feet within five years of planting.
(4)
Signs. All signs for any adult use must meet the requirements of Article VIII hereof. In addition, no portion of an advertisement, display or other promotional material which contains sexually explicit graphics or sexually explicit text shall be visible to the public from any public way, including but not limited to sidewalks, pedestrian walkways, highways, railways, or airways.
C.
Other special permit requirements.
(1)
If the adult use allows for the showing of films or videos within
the premises, curtains, doors or screens shall not close off the booths
in which the films or videos are viewed. All booths must be able to
be clearly seen from the center of the establishment.
(2)
Application requirements. The application for a special permit
for an adult use must include the following information:
(a)
Name and address of the owner of record of the property;
(b)
Name and address of the legal owner of the proposed adult use
establishment;
(c)
Name and address of all persons having a lawful, equity or security
interest in the adult use establishment;
(d)
A sworn statement must be provided stating that neither the
applicant, nor the manager, nor any person having a lawful, equity
or security interest in the adult use establishment has been convicted
of violating the provisions of M.G.L. ch. 119, § 63, or
M.G.L. ch. 272, § 28;
(e)
Name and address of the manager of the adult use establishment;
(f)
Proposed provisions for securing the safety of the public within
and without the adult use establishment;
(g)
The number of employees; and
(h)
The present and proposed physical layout of the interior of
the adult use establishment.
(3)
No special permit for an adult use shall be issued to any person
convicted of violating M.G.L. ch. 119, § 63, or M.G.L. ch.
272, § 28.
(4)
An adult use special permit shall only be issued following a
public hearing held within 65 days after the filing of an application
with the Planning Board, a copy of which shall forthwith be given
to the Town Clerk by the applicant.
(5)
Any adult use special permit issued under this bylaw shall lapse
within one year if substantial use thereof has not sooner commenced
except for good cause or in the case of a permit for construction,
if construction has not begun by such date except for good cause;
excepting only any time required to pursue or await the determination
of an appeal from the grant thereof.
(6)
Any adult use special permit issued under this bylaw shall require
that the owner of such adult use shall supply on a continuing basis
to the Building Inspector any change in the name of the record owner
or address or any change in the name of the current manager; and that
failure to comply with this provision shall result in the immediate
revocation of such special permit. If anyone so identified is or is
found to be convicted of violating M.G.L. ch. 119, § 63,
or M.G.L. ch. 272, § 28, such special permit shall immediately
be null and void.
(7)
No adult use special permit issued under this bylaw shall become
valid or in full force and effect until and unless the owner of the
property containing such adult use shall supply to the Building Inspector
a notarized statement agreeing to all terms and conditions of said
adult use special permit.
A.
Adult use in existence prior to the adoption of this article shall
apply for a special permit as specified in this article within 90
days following the adoption of this article and shall be required
to comply in all respects with all requirements of this article.
B.
Any adult use in existence prior to the adoption of this article
which has applied for such special permit but which has not been granted
such special permit may be permitted by a unanimous vote of the Planning
Board following a public hearing to continue in operation at its present
location for a period of time not exceeding six months following the
date of the application for such special permit, provided that a written
request therefor is made to the Planning Board.
C.
The Planning Board, upon written application made prior to the expiration
of any such period of time and following a public hearing, may grant
one additional extension period of time not to exceed six months.
The adult use owner must demonstrate undue financial hardship if forced
to close immediately upon failure to obtain a special permit to the
Planning Board in order to obtain any such extension.
D.
The provisions of this article shall only apply to adult uses as
defined in this article which are also defined in M.G.L. ch. 40A,
§ 9A.
In the event that any provision of this article shall be determined
invalid by a court of competent jurisdiction or otherwise, the remaining
provisions of this article not manifestly inseparable from the invalid
provision(s) shall remain in full force and effect.
