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HomeMy WebLinkAbout27- City Attorney CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: James F. Penman, City Attorney Subject: Urgency Ordinance Amending Development Code Section 19.06.030(2)(A) Dept: City Attorney regarding Adult Businesses Date: July 24, 1996 Synopsis of Previous Council action: 02/22/94 - The Mayor and Common Council adopted MC-896, an Urgency Ordinance to allow adult businesses in the IL, Industrial Light, land use designation, and directed staff to process a Development Code Amendment through the normal process. 08/15/94 - The Mayor and Common Council adopted MC-909, an ordinance to allow adult businesses in the IL, Industrial Light, land use district. 12/19/94 - The Mayor and Common Council adopted MC-915, an Urgency Ordinance prohibiting the establishment of an adult business within 1,000 feet of any religious institution which received development permit approval before December 19, 1994; and directed staff to process a Development Code Amendment through the normal process. 06/05/95 - The Mayor and Common Council adopted MC-942, an Ordinance prohibiting the establishment of an adult business within 1,000 feet of any religious institution which received development permit approval before December 19, 1994. Recommended motion: Adopt the urgency Ordinance and direct the Planning Department to initiate a regular ordinance amending the Development Code. Signatuk Contact person: Henry Empeno Jr Deputy City Attorney Phone: 5235 Supporting data attached: Ward: City-Wide CH and IL Districts_ FUNDING REQUIREMENTS: Amount: NA Source: _ (Acct. No.) (Acct. Description) Finance: Council Notes: 75-0262 Agenda Item No. c.�� CITY OF SAN BERNARDINO --- REQUEST FOR COUNCIL ACTION STAFF REPORT Currently the Development Code permits adult businesses, subject to a Conditional Use Permit, only in the CH and IL (Commercial Heavy and Industrial Light) land use districts and provided that they are located more than 2,000 feet from another adult business, and more than 1,000 feet from any religious institution which received development permit approval before December 19, 1994, or any school, public park, or residentially used or residentially zoned property. When the Mayor and Common Council first adopted Section 19.06.030(2)(A), relating to adult businesses, and as this section has been amended from time to time, it was intended and assumed that sufficient land was available in the City for such uses as required by law. However, it has been argued that the result of the actions of the Mayor and Common Council has been that there remains insufficient land within the City for such uses as required by law. Notwithstanding such claims, we are still of the understanding and belief that the land legally available within the City for adult uses is sufficient to meet the requirements established by the Constitution of the United States, but out of an abundance of caution and to ensure that the City has met its Constitutional requirements, we recommend that the Mayor and Common Council adopt this amendment to clarify their intent relative to regulating adult businesses in the City's Development Code. This amendment will clarify the prior intent of the Mayor and Common Council that Section 19.06.030(2)(A) of the Municipal Code (Development Code), as amended, will require that the distance between any adult entertainment business and any of the enumerated sensitive uses shall be measured from the closest exterior structural wall of the adult entertainment business to the closest property line of the sensitive use. This amendment also provides that when such adult businesses are separated from the sensitive uses by a freeway, river, or flood control channel, the secondary effects of the adult businesses cannot reach the sensitive uses by a straight line. We recommend that the Mayor and Common Council clarify its prior position that the distances specified in Section 19.06.030(2)(A)(14)(1) will be measured in a straight line except when intersected by a freeway, river or flood control channel. In such cases it is appropriate that the specified distances be measured along the shortest route of travel. (he:ao\rpt-adlt.ord] 1 ORDINANCE NO. 2 AN URGENCY ORDINANCE OF THE CITY OF SAN BERNARDINO AMENDING CHAPTER 19.06 OF THE SAN BERNARDINO MUNICIPAL CODE 3 (DEVELOPMENT CODE) REGARDING ADULT BUSINESSES AND DECLARING THE URGENCY THEREOF. 4 THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO 5 DO ORDAIN AS FOLLOWS: 6 SECTION 1. Legislative Intent and Findings. When the Mayor and Common Council 7 first adopted Section 19.06.030(2)(A), relating to adult businesses, and as this section has been 8 amended from time to time, it was intended and assumed that sufficient land was available in the 9 City for such uses as required by law. However, it has been argued that the result of the actions 10 of the Mayor and Common Council has been that there remains insufficient land within the City 11 for such uses as required by law. Notwithstanding such claims, the Mayor and Common 12 Council are still of the understanding and belief that the land legally available within the City 13 for adult uses is sufficient to meet the requirements established by the Constitution of the United 14 States, but out of an abundance of caution and to ensure that the City has met its Constitutional 15 requirements, the Mayor and Common Council hereby adopt this amendment to clarify its intent 16 relative to regulating adult businesses in the City's Development Code. 17 The Mayor and Common Council hereby find and declare that the secondary effects of 18 adult businesses tend to degrade the neighborhood and cause blight and crime in the immediate 19 and surrounding areas. The Mayor and Common Council find and declare that the imposition 20 of distance restrictions tends to lessen those effects and protect the surrounding areas from such 21 secondary effects. 22 It is the intent of this amendment to clarify the prior intent of the Mayor and Common 23 Council that Section 19.06.030(2)(A) of the Municipal Code (Development Code), as amended, 24 will require that the distance between any adult entertainment business and any of the enumerated 25 sensitive uses shall be measured from the closest exterior structural wall of the adult 26 entertainment business to the closest property line of the sensitive use. 27 28 DAB/tbm [AdultBus.Ord) 1 July 30, 1996 1 AN URGENCY ORDINANCE . . . AMENDING CHAPTER 19.06 OF THE SAN BERNARDINO MUNICIPAL CODE (DEVELOPMENT CODE) REGARDING ADULT 2 BUSINESSES AND DECLARING THE URGENCY THEREOF 3 However, the Mayor and Common Council have determined that when such adult 4 businesses are separated from the sensitive uses by a freeway, river, or flood control channel, 5 the secondary effects of the adult businesses will not adversely impact the sensitive uses in the 6 same way as they would in the absence of such barriers. It is therefore the intent of the Mayor 7 and Common Council to clarify its prior position that the distances specified in Section 8 19.06.030(2)(A)(14)(1) will be measured in a straight line except when intersected by a freeway, 9 river or flood control channel. In such cases the Mayor and Common Council find and lo determine that it is appropriate that the specified distances be measured along the shortest route 11 of travel. 12 SECTION 2. Section 19.06.030(2)(A)(14)(2) of the Development Code (the 13 development standards) is hereby amended to read as follows (see Attachment A, Development 14 Code Page II-94, attached and incorporated herein by reference): 15 642. Measurement of Distance. The distance between any 2 adult entertainment 16 businesses shall be measured in a straight line, without regard to intervening structures, from 17 the closest exterior structural wall of each business. The distance between any adult 18 entertainment business and any religious institution, school or public park or any property 19 designated for residential use or used for residential purposes shall be measured in a straight line, 20 without regard to intervening structures, from the closest exterior structural wall of the adult 21 entertainment business to the closest property line of the religious institution, school or public 22 park or the property designated for residential use or used for residential purposes. Should the 23 straight line distance be intersected by a freeway, a river or a flood control channel, the distance 24 shall instead be measured by the shortest route of travel." 25 SECTION 3. Urgency. This urgency ordinance shall take effect immediately in order 26 to protect the public peace, health, and safety. It is necessary that this ordinance take effect 27 immediately to safeguard the City's ordinances from potential Constitutional challenges in light 28 DAB/tbm [AdultBus.Ordl 2 July 30, 1996 1 AN URGENCY ORDINANCE . AMENDING CHAPTER 19.06 OF THE SAN BERNARDINO MUNICIPAL CODE (DEVELOPMENT CODE) REGARDING ADULT 2 BUSINESSES AND DECLARING THE URGENCY THEREOF 3 of recent court decisions which have held that a city's ordinances must provide adult businesses 4 a reasonable opportunity to open and operate within the City. Should the courts determine that 5 the current ordinances do not stand up to Constitutional challenges, the City's ability to 6 determine for itself where the location of such businesses would be most appropriate would be 7 in question, thereby allowing adult businesses in all parts of the City without regard to 8 surrounding compatible land uses. 9 SECTION 4. The Mayor and Common Council hereby directs the Department of lo Planning and Building Services to initiate a regular ordinance amending the Development Code 11 consistent with this urgency ordinance. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DAB/tbm [AdultBus.Ord] 3 July 30, 19% 1 AN URGENCY ORDINANCE . . . AMENDING CHAPTER 19.06 OF THE SAN BERNARDINO MUNICIPAL CODE (DEVELOPMENT CODE) REGARDING ADULT 2 BUSINESSES AND DECLARING THE URGENCY THEREOF 3 I HEREBY CERTIFY that the foregoing Ordinance was duly adopted by the Mayor and 4 Common Council of the City of San Bernardino at a meeting thereof, 5 held on the day of , 1996, by the following vote, to wit: 6 7 Council Members: AYES NAYS ABSTAIN ABSENT 8 NEGRETE 9 CURLIN 10 ARIAS 11 OBERHELMAN 12 DEVLIN 13 ANDERSON 14 MILLER 15 16 CITY CLERK 17 18 The foregoing Ordinance is hereby approved this day of , 1996 19 20 TOM MINOR, Mayor 21 City of San Bernardino Approved as to form 22 and legal content: 23 JAMES F. PENMAN, City Attorney 24 25 By: 26 27 28 DAB/tbm [AdultBus.Ord] 4 July 30, 1996 CONVAERCIAL DISTRICTS-19A6 2. Measurement of Distance. The distance between any 2 adult entertainment businesses shall be measured in a straight line, without regard to intervening structures, from the closest exterior structural wall of each business. The distance between any adult entertainment business and any religious institution, school or public park or any property designated for residential use or used for residential purposes shall be measured in a straight line, without regard to intervening structures, from the closest exterior structural wall of the adult entertainment business to the closest property line of the religious institution, school or public park or the property designated for residential use or used for residential purposes. Should the straight line distance be intersected by a freeway, a river or a flood control channel, the distance shall instead be measured by the shortest route of travel. 3. Sigma All on-site signage shall conform to Chapter 19.22. 4. Viewing Area. a. It is unlawful to maintain,operate or manage or permit to be maintained,operated or managed any adult arcade in which the viewing areas are not visible from a contintious main aisle or are obscured by a curtain, door, wall,or other enclosure. For purposes of this Section,viewing area means the area where a patron or customer would ordinarily be positioned while watching the performance,picture,show or film. b. It is unlawful for more than 1 person at a time to occupy any individually partitioned viewing area or booth. C. It is unlawful to create,maintain or permit to be maintained any holes or other openings between any 2 booths or in- dividual viewing areas for the purpose of providing view- ing or physical access between the booth or individual view- ing area. d. The opening to the viewing area shall be from the main aisle. B. ALCOHOL BEVERAGE CONTROL"ABC"LICENSE A business or establishment requiring issuance of an "ABC' license is sub- ject to a Conditional Use Permit, and shall comply with the following standard(s), in addition to conditions imposed by the Commission: Establishments subject to an off-site "ABC' license shall not be located within 500 feet of any religious institution,school,or public park within the City; 100 feet of any property designated for residential use or used for residential purposes; and shall not be located in such dose proximity to another similar use to cause oversaturation of the neighborhood. The license application shall be reviewed by the Police Department prior to City approval. II'94 7192 EXHIBIT "A"