Town of Babylon, NY Article XXXI Adult Use District

[Added 12-15-1987 by L.L. No. 11-1987; amended 5-24-2005 by L.L. No. 9-2005]

§ 213-376 Legislative intent and purpose.

The Town Board has conducted an extensive review of land use studies concerning secondary effects of sexually oriented businesses in other municipalities, including the Town of Huntington, Town of Islip and the City of New York, and has further prepared maps to set forth the locations where adult uses would be permissible pursuant to certain proposed regulations. From a review of these studies, and the testimony of its residents, the Town Board finds the following:

A. Some uses, due to their very nature, have characteristics which cause, or tend to cause, secondary adverse impacts upon the community and have a deleterious effect on both surrounding businesses and residential areas, such as increased crime and downgraded property values. Said impacts are heightened by concentration of such uses in any one area, thereby aggravating deleterious effects on adjacent areas and other uses.

B. Among such uses are sexually oriented businesses, which have serious objectionable characteristics, particularly when operated in close proximity to each other, thereby contributing to crime, lower property values, blight and downgrading of the quality of life in adjacent areas. Special regulation of such uses is necessary to ensure that said adverse secondary impacts do not contribute to blighting or downgrading of surrounding neighborhoods or land uses.

C. Location of such uses in relation to residential and other areas where youth may regularly assemble and/or congregate, the general atmosphere around their operation and their downward impact of property values, resulting in disinvestment with concomitant social and economic deterioration, is of great concern to the Town of Babylon.

D. The special regulations set forth hereinbelow are intended to ameliorate adverse secondary impacts of such uses on adjacent areas and other land uses, to prevent concentration of such uses in any one area and to dissuade accessibility to such uses by minors.

§ 213-377 Definitions and word usage.

[Amended 7-19-2005 by L.L. No. 19-2005; 11-8-2007 by L.L. No. 21-2007; 11-17-2010 by L.L. No. 35-2010; 5-22-2012 by L.L. No. 4-2012]

A. As used in this article, the following shall be adult uses:

ADULT BOOKSTORE

Any establishment which offers for viewing, sale or rental, for any form of consideration or gratuity, adult entertainment, through any mediums, as a substantial or significant portion of its business, merchandise and/or stock-in-trade.

ADULT DRIVE-IN THEATER

A drive-in theater that customarily presents adult entertainment in the form of motion pictures, which is not open to the public generally but excludes any minor by reason of age.

ADULT ENTERTAINMENT CABARET

A public or private establishment which presents adult entertainment in the form of topless dancers, strippers, exotic dancers or other similar entertainments and which establishment is customarily not open to the public generally but excludes any minor by reason of age.

ADULT LIVE PERFORMANCES

Adult entertainment in the form of live performances which are characterized by an emphasis on persons who appear in a state of nudity; and/or which are characterized by an emphasis on persons who expose specified anatomical areas or engage in depiction or description of specified sexual activities; and/or conduct by employees who, as part of their employment, expose to patrons specified anatomical areas.

ADULT MASSAGE

Adult entertainment in the form of massage or any other treatment or manipulation of the human body which occurs as a part of, or in connection with, specified sexual activities or where any person providing such massage, treatment or manipulation exposes specified anatomical areas of his or her body.

ADULT NOVELTY SHOPS

Any establishment which offers for viewing, sale or rental, for any form of consideration or gratuity, adult entertainment and/or adult paraphernalia as a substantial or significant portion of its business, merchandise and/or stock-in-trade.

ADULT STORE

An establishment having, as a substantial or significant portion of its merchandise and/or stock-in-trade of adult entertainment, DVDs, CDs or computer games and videotapes, paraphernalia or novelties or adult materials of any type, objects or materials used for sexual purposes, or objects which bear a practical resemblance to human sex organs.

ADULT THEATER

A theater that customarily presents adult entertainment in the form of motion pictures, films, videotapes or slide shows, which is not open to the public generally but excludes any minor by reason of age.

ADULT VIDEO STORES

Any establishment which offers for viewing, sale or rental, for any form of consideration, adult entertainment, such as adult photographic reproductions, as a substantial or significant portion of its business, merchandise and/or stock-in-trade.

OTHER ADULT COMMERCIAL FACILITIES

Business or commercial enterprises, other than those specifically set forth by definition in this section, that offer or feature, for any form of consideration or gratuity, adult entertainment, through any medium, as a substantial or significant portion of its business, merchandise and/or stock-in-trade.

PEEP SHOW

A theater which presents adult entertainment in the form of live shows, films or videotapes, viewed from an individual enclosure, for which a fee is charged and which is not open to the public generally but excludes any minor by reason of age. However, nothing herein shall permit any enclosure to be more than three sides. One side must be open to the view of other customers.

B. As used in this article, the following terms shall have the meanings indicated:

ADULT ENTERTAINMENT

Includes the causing, permitting or allowing of:

(1) Offering printed materials, photographic reproductions or live performances which, applying contemporary community standards, and when taken as a whole, appeal to the prurient interest, are patently offensive and lack serious literary, artistic, political or scientific value and which are characterized by an emphasis on persons who appear in a state of nudity; and/or which are characterized by an emphasis on persons who expose specified anatomical areas or engage in depiction or description of specified sexual activities; and/or

(2) Conduct by employees who, as part of their employment, expose to patrons specified anatomical areas; and/or by two or more persons who congregate, associate or consort for purposes of specified sexual activities, exposure of specified anatomical areas or activities when one or more of them is in a state of nudity; and/or

(3) Offering paraphernalia designed, used or marketed primarily for stimulation of human genital organs or sadomasochistic use or abuse; and/or massage or any other treatment or manipulation of the human body which occurs as a part of, or in connection with, specified sexual activities or where any person providing such massage, treatment or manipulation exposes specified anatomical areas of his or her body.

ADULT PARAPHERNALIA

Includes instruments, devices, gear, equipment, apparatus, accoutrements or other appurtenances which are designed, used or marketed primarily for stimulation of human genital organs or sadomasochistic use or abuse.

ADULT PHOTOGRAPHIC REPRODUCTIONS

Includes slides, films, motion pictures, videotapes, videocassettes, compact discs or similar pictorial presentations characterized by an emphasis on depiction or description of specified sexual activities or specified anatomical areas.

ADULT PRINTED MATERIALS

Includes books, magazines, periodicals, photographs or other printed matter which are characterized by an emphasis on depiction or description of specified sexual activities or specified anatomical areas.

EMPLOYEE

Any person who works or performs in or for an adult establishment, either on a regular basis or on single or multiple separate occasions, regardless of whether or not said person is paid a salary, wage or other compensation by the operator of said business.

NUDITY

The appearance, or state of dress, of a person, viewable by one or more other persons, wherein human genitals, pubic region, buttocks, anus, or female breast below a point immediately above the top of the areola are exposed or less than completely and opaquely concealed.

PARK/PARKS

Includes all parks, park reserves, playgrounds, athletic fields, swimming pools, beaches, boardwalks, bowling alleys, skating rinks, theaters, game centers, amusement parks and similar places of amusement, entrances, approaches, facilities and other recreational areas, including structures and buildings owned or used by the Town.

SPECIFIED ANATOMICAL AREAS

Includes, with regard to the human body:

(1) Genitals, pubic region, buttocks, anus, or female breast below a point immediately above the top of the areola less than completely and opaquely concealed; and/or

(2) Male genitals in a discernibly turgid state, even if completely and opaquely concealed.

SPECIFIED SEXUAL ACTIVITIES

Includes, with regard to the human body, actual or simulated depictions or descriptions of:

(1) Genitals in a state of sexual stimulation or arousal; and/or

(2) Acts of masturbation, sexual intercourse or sodomy; and/or

(3) Fondling or other erotic touching of genitals, pubic region, buttocks, anus or female breast.

SUBSTANTIAL OR SIGNIFICANT PORTION

(1) "Substantial or significant portion" shall be determined using the following considerations:

(a) Amount of floor area and basement space accessible to customers and allotted to adult entertainment of any type, generally, or as compared to the total floor area and basement space accessible to customers; and/or

(b) Amount of adult entertainment stock-in-trade of any type accessible to customers, generally, or as compared to total stock accessible to customers; and/or

(c) Revenues derived from adult entertainment of any type, generally, or as compared to total revenues; and/or

(d) Advertising devoted to adult entertainment of any type, generally, or as compared to total advertising; and/or

(e) Use of the establishment for adult entertainment of any type, generally, or as compared to total use thereof.

(2) However, notwithstanding the above considerations, the following shall be conclusive in determining substantial or significant portion:

(a) Forty percent or more of floor area and basement space accessible to customers allotted to adult entertainment of any type; and/or

(b) Forty percent or more of its stock-in-trade in adult entertainment materials of any type; and/or

(c) Forty percent or more of its gross income derived from adult entertainment of any type; and/or

(d) Forty percent or more of its advertising devoted to adult entertainment of any type; and/or

(e) Forty percent or more of its business, generally, engaged in adult entertainment of any kind.

§ 213-378 Restriction on location of adult uses.

The adult uses as defined in § 213-377 above are to be restricted as to location in the following manner in addition to any other requirements of this Code:

A. Adult uses shall be allowable only in industrial zoned districts and subject to the regulations set forth in this article.

B. The lot line of any of the above uses shall not be located within a one-thousand-foot radius of the lot line of any lot zoned for residential use. For purposes of this subsection, cemetery property shall be deemed not zoned residential.

C. The lot line of any of the above uses shall not be located within a five-hundred-foot radius of the lot line of another such legal adult use.

D. The lot line of any of the above uses shall not be located within a one-thousand-foot radius of any school, library, church or other place of religious worship, park, playground or playing field.

§ 213-379 Density of adult uses on lot.

No more than one of the adult uses as defined above shall be located on any lot.

§ 213-380 Nonconforming adult uses.

A. Any adult use legally existing with a certificate of occupancy specifically authorizing the adult use prior to the adoption of this article may apply to the Nonconforming Use Board pursuant to Article III of Chapter 213 of the Babylon Town Code for nonconforming status.

B. Any application for an adult use pending as of April 26, 2005, before the Town of Babylon shall be considered using the criteria set forth herein, except the lot line of the adult use shall not be within a five-hundred-foot radius of the lot line zoned for residential use.

§ 213-381 Severability.

A. The provisions of this article are severable. The invalidity of any word, section, subsection, clause, phrase, paragraph, sentence, part or provision of this article shall not affect the validity of any other part of this article which can be given effect without such invalid part or parts.

B. If any portion of this article is found to be in conflict with any other provision of any other local law or ordinance of the Code of the Town of Babylon, the provision which establishes the higher standard shall prevail.