The purpose and intent of this article is to minimize the negative secondary effects associated with sexually oriented businesses through regulating, but not excluding, the location and operation of sexually oriented businesses within the Village. It is recognized that sexually oriented businesses, because of their very nature, have serious objectionable operational characteristics which cause negative secondary effects upon nearby residential, educational, religious, and other similar public and private land uses. The regulation of sexually oriented businesses is necessary to ensure that their negative secondary effects will not adversely impact the health, safety, and general welfare of Village residents, nor contribute to the blighting or downgrading of surrounding areas. The provisions of this article are to not intended: i) to violate the guarantees of the First Amendment to the United States Constitution or Article I, Section 5 of the Michigan Constitution of 1963; ii) to deny adults access to sexually oriented businesses and their products; iii) to deny sexually oriented businesses access to their intended market; or iv) to legitimatize activities which are prohibited by Village ordinance, state or federal law. The Village further states that it would have passed and adopted what might remain of this article following the removal, reduction, or revision of any portion of this article found to be invalid or unconstitutional.
The following definitions shall apply in the interpretation
and enforcement of this article only, unless otherwise specifically
stated:
A commercial establishment that offers coin-operated (or
for any other form of consideration) electronically, electrically,
or mechanically controlled still or motion-picture machines, projectors,
video or laser disc players, or other image-producing devices to show
images to five or fewer persons per machine at any one time, and where
the images so displayed are distinguished or characterized by the
depicting of specified anatomical areas or specified sexual activities.
A commercial establishment that has as a substantial or significant
portion of its stock-in-trade, and as one of its principal business
purposes offers for sale or rental for any form of consideration,
any one or more of the items set forth in Subsection A or B of this
definition.
Books, magazines, periodicals or other printed matter, photographs,
films, motion pictures, video cassettes or video reproductions, slides,
or any other visual representations or media which depict or describe
specified anatomical areas or specified sexual activities; or
Instruments, devices, or paraphernalia that are designed for
use in connection with specified sexual activities.
A nightclub, bar, restaurant, or similar commercial establishment
that regularly features:
Persons who appear in a state of nudity;
Live performances that are characterized by the exposure of
specified anatomical areas or by specified sexual activities;
Films, motion pictures, video cassettes, slides, other photographic
reproductions or visual media that are characterized by the depiction
or description of specified anatomical areas or specified sexual activities;
or
Persons who engage in lewd, lascivious or erotic dancing or
performances that are intended for the sexual interests or titillation
of an audience or customers.
A business engaged in for financial remuneration, either
directly or indirectly, wherein the owner, operator or agent books
performances for dancers, comedians, musicians, entertainers or burlesque
performers, taking a fee, commission or percentage of any money from
the patron or performer for services rendered, when the performances
are characterized by exposure of specified anatomical areas or by
specified sexual activities.
A hotel, motel or similar commercial establishment that does
any of the following:
Offers accommodations to the public for any form of consideration
and provides patrons with closed-circuit television transmissions,
films, motion pictures, video cassettes, slides, other photographic
reproductions or visual media that are characterized by the depiction
or description of specified anatomical areas or specified sexual activities
and has a sign visible from the public right-of-way that advertises
the availability of any of the above;
Offers a sleeping room for rent for a period of time that is
less than 12 hours; or
Allows a tenant or occupant of a sleeping room to sub-rent the
room for a period of time that is less than 12 hours.
A commercial establishment that, for any form of consideration,
regularly shows films, motion pictures, video cassettes, slides, other
photographic reproductions or visual media, that are characterized
by the depiction or description of specified anatomical areas or specified
sexual activities.
A theater, concert hall, auditorium, or similar commercial
establishment that regularly features a person or persons who appear
in a state of nudity or live performances that are characterized by
exposure of specified anatomical areas or by specified sexual activities.
A business engaged in for financial remuneration, either
directly or indirectly, where arrangements are made to match a person
of the same or opposite sex to a patron or patrons, for social or
entertainment purposes, either on or off the premises of the dating
service.
A person who, for consideration, agrees or offers to act
as a companion, guide, or date for another person, who agrees or offers
to privately model lingerie or to privately perform a striptease for
another person.
A person or business who furnishes, offers to furnish, or
advertises the furnishing of escorts for a fee, tip, or other consideration.
The performance of manipulative exercises upon the human
body of another by rubbing, kneading, stroking or tapping with the
hand or hands, or with any mechanical or bathing device, with or without
supplementary aids, for nontherapeutic purposes. The systematic and
scientific manipulation of the soft tissues of the human body by a
state-licensed health care professional for therapeutic and/or rehabilitative
purposes shall be considered a therapeutic massage and not restricted
by this article.
Any commercial establishment where nontherapeutic massage
is made available for any form of consideration.
Any place, establishment or facility which provides instruction
in the theory, method and practice of nontherapeutic massage.
Any place where a person who displays specified anatomical
areas is provided in order to be observed, sketched, drawn, painted,
sculptured, photographed, or similarly depicted by other persons who
pay money or any form of consideration, but does not include:
Knowingly or intentionally displaying in a public place,
or for payment or promise of payment by any person, including, but
not limited to, payment or promise of payment of an admission fee,
any individual's genitals or anus with less than a fully opaque covering,
or a female individual's breast with less than a fully opaque covering
of the nipple and areola. "Public nudity" does not include:
A woman's breastfeeding of a baby whether or not the nipple
or areola is exposed during or incidental to the feeding;
Material as defined in Section 2 of Michigan Act 343 of 1984,[1] as amended, or any similar successor statute; or
Sexually explicit visual material as defined in Section 3 of
Michigan Act 33 of 1978,[2] as amended, or any similar successor statute.
Any real property or an appurtenance to real property that
is owned or leased by the State of Michigan, any local unit of government
of the State of Michigan, a public agency, or by a college or university
of the State of Michigan and may include a structure, enclosure, facility,
or complex, including a court, mall, park, or other area, feature,
or element; a "public place" shall also mean a business or an educational,
refreshment, entertainment, recreation, health, or transportation
facility, or institution of any kind, whether licensed by any agency
of government or not, whose goods, services, facilities, privileges,
advantages, or accommodations are extended, offered, sold, or otherwise
made available to the public.
A commercial establishment that, as one of its principal
business purposes, offers for any form of consideration:
Any of the following:
Adult arcade;
Adult bookstore or adult video store;
Adult entertainment booking agency;
Adult cabaret;
Adult motel;
Adult motion-picture theater;
Adult theater;
Dating service;
Escort agency;
Massage parlor;
Massage school;
Nude model studio; and
Sexual encounter center.
Are defined as follows:
Are defined to include any of the following:
The erotic fondling or erotic touching of human genitals, pubic
region, buttocks, anus, or female breasts;
Sex acts, normal or perverted, actual or simulated, including,
but not limited to, intercourse, oral copulation, sodomy, and/or masturbation;
Sexual arousal or gratification using animals or violence, actual
or simulated;
Notwithstanding any provisions of this chapter to the contrary,
sexually oriented businesses shall be permitted only as a special
land use subject to Planning Commission approval within the Waterfront
Overlay District.
Special land use approval shall not be granted to any sexually
oriented business unless it meets all of the following enumerated
requirements. Any sexually oriented business granted special land
use approval shall continue to comply with all of the requirements
of this section at all times while the business is operational.
A.Â
No sexually oriented businesses shall be located on a parcel that
is within 500 feet of another sexually oriented business.
B.Â
No sexually oriented business shall be located on a parcel that is
within 350 feet of the boundary of any land zoned residential, or
approved as a planned unit development for residential purposes.
C.Â
No sexually oriented business shall be located on a parcel that is
within 350 feet of any single- or multiple-family residence, any Village,
county or state park, any school, library, licensed child-care facility,
playground, church or place of worship.
E.Â
No sexually oriented business shall be located within any principal
or accessory building or structure already containing a sexually oriented
business.
F.Â
The proposed use shall conform to all requirements of the zoning
district in which it is located.
G.Â
The proposed use shall be in compliance with all other ordinances
of the Village and with all statutes, laws, rules and regulations
of the county, state and federal government and, to the extent required,
all governmental approvals have been obtained.
H.Â
The outdoor storage of garbage and refuse shall be contained, screened
from view and located so as not to be visible from the neighboring
properties or the adjacent right-of-way of a public street or private
road.
I.Â
Any sign or signs proposed for the sexually oriented business shall comply with the provisions of Article XV, Signs, of this chapter, and shall not otherwise include photographs, silhouettes, drawings, or pictorial representations of specified anatomical areas, specified sexual activities or obscene representations of the human form, and may not include animated or flashing illumination. Entrances to the proposed sexually oriented business must be posted on both the exterior and interior walls, in a location clearly visible to those entering and exiting the business, and using clearly marked lettering no less than two inches in height stating that:
J.Â
No product or service for sale or gift, or any picture or other representation
of any product or service for sale or gift, shall be displayed so
as to be visible by a person of normal visual acuity from the nearest
adjoining right-of-way of a street or private road or a neighboring
property.
K.Â
Hours of operation shall be limited to 10:00 a.m. to 10:00 p.m.,
Monday through Saturday. All sexually oriented businesses shall remain
closed on Sundays and legal holidays.
L.Â
All off-street parking areas shall comply with Article XVI, Parking Regulations, of this chapter and shall be illuminated after sunset during all hours of operation of the sexually oriented business, and until one hour after the business closes. The illumination shall be designed to provide a minimum level of brightness of one footcandle, with a 3:1 uniformity ratio. The illumination shall not reflect on and shall be screened from adjoining properties.
M.Â
Any booth, room or cubicle available in any sexually oriented business,
except an adult motel, that is used by patrons for the viewing of
any entertainment characterized by the showing of specified anatomical
areas or specified sexual activities shall:
(1)Â
Be handicap accessible to the extent required by the law;
(2)Â
Be unobstructed by any floor, lock or other entrance and exit control
device;
(3)Â
Have at least one side totally open to a public, lighted aisle so
that there is an unobstructed view of any occupant at all times from
the adjoining aisle;
(4)Â
Be illuminated such that a person of normal visual acuity can, by
looking into the booth, room or cubicle from its entrance adjoining
the public lighted aisle, clearly determine the number of people within;
and
(5)Â
Have no holes or openings in any side or rear walls not relating
to utility, ventilation or temperature control services or otherwise
required by any governmental building code authority.
Notwithstanding any provisions of this chapter to the contrary,
applications for special land use permits and site plan approval submitted
by sexually oriented businesses will be governed by this article.
A.Â
An application for a special land use permit provided under this
article for a sexually oriented business shall be filed with the Zoning
Administrator on the proper forms supplied by the Village. An application
shall not be deemed complete until all required information and necessary
documentation have been provided to the Village by the applicant or
the applicant's agents and representatives.
B.Â
The application shall be accompanied by 12 copies of a site plan as required by and provided for in Article XVII, Site Plan Review, and any other data required by the Zoning Administrator indicating how the proposed sexually oriented business will conform with this article.
C.Â
The application shall be accompanied by a legal description of the
property, either by metes and bounds or by subdivision lot and block,
and a street address.
D.Â
The application shall be accompanied by a fee to be established by
resolution of the Village Council to cover the expense of considering
and making a decision on the application.
Notwithstanding any provisions of this chapter to the contrary, the Planning Commission shall hold a public hearing on the proposed special land use pursuant to § 390-151 hereof.
A.Â
Notwithstanding any provisions of this chapter to the contrary, a final decision on the special land use application and site plan approval shall be made by the Planning Commission within a reasonable time of the receipt of the completed application by the Zoning Administrator along with any other materials deemed necessary. The Planning Commission shall base its decision upon the applicant's compliance with the requirements set forth in this article and the special land use standards of § 390-134. The decision on the site plan approval shall be made according to the standards set forth in § 390-126.
B.Â
The Planning Commission may impose reasonable conditions in conjunction
with the approval of a special land use permit for a sexually oriented
business. The conditions imposed shall be limited to conditions necessary
to ensure that the sexually oriented business will not be unreasonably
detrimental to the public health, safety, or general welfare of the
Village; nor unreasonably injurious to the use and enjoyment of other
property in the immediate vicinity for the purposes already permitted;
nor unreasonably impede the normal and orderly development and improvement
of the surrounding property for uses permitted under this chapter.
C.Â
The Planning Commission shall incorporate its decision in a written
statement containing the conclusions that specify the basis of the
decision and any conditions imposed.
The decision of the Planning Commission shall be final. Notwithstanding
any provisions of this chapter to the contrary, in the event the Planning
Commission denies an application for special land use permit for a
sexually oriented business, the applicant shall not be allowed to
appeal the Planning Commission's decision to the Village Council nor
the Zoning Board of Appeals. The applicant shall be entitled to judicial
review of the Planning Commission's decision in any court of competent
jurisdiction.
