City of Port Jervis, NY Article IV General Provisions

§ 535-10 Permits and certificates.

No building or other structures shall be constructed, reconstructed, enlarged, extended, moved or structurally altered until an application for a building permit has been submitted to and approved by the Building Official and a building permit has been issued by that official. No land, building, or other structure shall be used or occupied, or changed in use, until an application for a certificate of occupancy/compliance has been submitted to and approved by the Building Official and until a certificate of occupancy/compliance has been issued by that official certifying conformity with this chapter. All applications shall be submitted and approved in accordance with this chapter and all building permits and certificates of occupancy/compliance shall be issued in accordance with this chapter.

§ 535-11 Performance standards.

The following performance standards shall apply to all nonresidential uses of land, buildings and other structures and shall be of continuing application:

A. Dust, dirt, fly ash and smoke. No dust, dirt, fly ash or smoke shall be emitted into the air from any lot so as to endanger the public health and safety, to impair safety on or the value and enjoyment of other property, or to constitute a critical source of air pollution.

B. Odors. No offensive odors shall be emitted into the air from any lot so as to impair the value and enjoyment of any other lot.

C. Gases and fumes. No noxious, toxic, or corrosive fumes or gases shall be emitted into the air from any lot so as to endanger the public health and safety or to impair safety on or the value and enjoyment of any other lot.

D. Noise. With the exception of time signals and noise necessarily involved with the construction or demolition of buildings and other structures, no noise which is objectionable due to volume, intermittence, beat, frequency or shrillness shall be transmitted outside the lot where it originates.[1]

[1] Editor's Note: See also Ch. 381, Noise.

E. Vibration. With the exception of vibration necessarily involved in the construction or demolition of buildings, no vibration shall be transmitted outside the lot where it originates.

F. Wastes. No offensive wastes shall be discharged or dumped into any river, stream, watercourse, storm drain, pond, lake or swamp.

G. Glare and heat. No offensive glare from lighting shall be transmitted so as to endanger the public health and safety nor shall it be transmitted into or within any residence district so as to impair the value and enjoyment of any lot therein. No radiant heat shall be perceptible outside the lot where it originates.

H. Danger. No material which is dangerous due to explosion, extreme fire hazard or radioactivity shall be used, stored, manufactured, processed or assembled except in accordance with applicable codes and regulations of the State of New York.

§ 535-12 Prohibited uses.

No land, building or other structure shall be used for any of the following purposes:

A. Noxious, offensive or objectionable. Any use which is noxious, offensive, or objectionable by reason of the emission of smoke, dust, gas, odor, or other form of air pollution, or by reason of the deposit, discharge, or dispersal of liquid or solid wastes, in any form, in a manner or amount so as to cause permanent damage to the soil and stream or to adversely affect the surrounding area, or by reason of the creation of noise, vibration, electromagnetic or other disturbance, or by reason of illumination by artificial light or light reflection beyond the limits of the lot on or from which such light or light reflection emanates, or which involves any dangerous fire, explosive, radioactive, or other hazard, or which can cause injury, annoyance, or disturbance to any of the surrounding properties or to their owners and occupants, and any other process or use which is unwholesome and noisome and may be dangerous or prejudicial to health, safety, or the general welfare, and which does not conform to the performance standards specified in § 535-11.

B. Artificial lighting. Artificial lighting facilities of any kind with light sources visible beyond the lot lines.

C. Manufactured home. Use of a manufactured home or a camping trailer as a dwelling; manufactured home courts and recreational vehicle campgrounds.

D. Amusement parks. Amusement parks, circuses, Ferris wheels or similar amusement devices and outdoor games for profit, except those sponsored by local nonprofit organizations and then only for periods of not more than seven days by license issued by the Common Council.

E. Auto-wrecking yards/motor vehicle junkyards. Auto-wrecking yards; the outside storage of inoperative, unlicensed automotive vehicles and the outside storage of all automotive parts.

F. Explosives. Manufacture, sale or storage of explosives and fireworks, except under license from the State of New York and in a manner and place conforming to the laws of the State of New York and the American Table of Distances and provided that no more than 5,000 pounds is stored in any one magazine.

G. Incineration. Incineration or reduction of waste materials, except in a plant owned and operated by the City or county.

H. Disposal.

(1) Disposal of septic or sewage waste.

(2) Junkyards, sanitary landfills, or dumps, except those established as an official City or county dump or duly licensed as a dump by the Common Council.

I. Stockyards; slaughtering of animals.

J. Nuclear reaction. Atomic research or radioactive materials; the generation of power in any form from nuclear reactions.

K. Cemetery or crematory (but those that exist may continue to do so and even expand).

L. Liquid petroleum gas distributing stations.

M. Saw or planing mill.

N. Kennels.

O. Particular manufacturing processes involving primary production of the following products from raw materials:

(1) Insecticides and/or pesticides.

(2) Rendering plants for fat or animal products.

(3) Ammonia, chlorine or bleaching powder manufacture.

(4) Boiler making.

(5) Cooperage.

(6) Distillation of coal, wood or bones.

(7) Dry-dyeing establishments.

(8) Fertilizer manufacture.

(9) Gas, manufactured or bottled, sale or storage of.

(10) Glue, size and gelatin manufacture.

(11) Oilcloth or linoleum manufacture.

(12) Paint, oil, varnish or turpentine manufacture.

(13) Petroleum refining or storage.

(14) Pyroxylin manufacture.

(15) Rawhide or skins, storage, curing or tanning.

(16) Soap manufacture.

(17) Starch, glucose or dextrine manufacture.

(18) Sulfurous, sulfuric, nitric or hydrochloric acid manufacture.

(19) Tallow, grease or lard manufacture or refining.

(20) Tar distillation or manufacture.

(21) Tar roofing or tar waterproofing manufacture.

P. Other uses. Any other use, whether specified above or not, that is of such a nature as to be detrimental to neighboring properties by reason of emission of odor, dust, refuse matter, garbage, smoke, vibration, gas radiation, noise or any other factor that is dangerous to the comfort, peace, enjoyment, health or safety of the area or the community.

Q. Outdoor solid-fuel-burning boiler or furnace accessory structure appliance, designed and intended, through the burning of solid fuels, for the purpose of heating a principal structure, any other site, or structure on premises.

§ 535-13 Adult-oriented businesses.

A. Findings. Evidence and studies concerning the impacts or "secondary effects" of adult-oriented businesses on the surrounding community, as presented in judicial decisions such as, but not limited to, City of Erie v. Pap's A.M. tdba "Kandyland," 529 U.S. 277 (2000); Barnes v. Glen Theater, Inc., 501 U.S. 560 (1991); City of Renton v. Playtime Theaters, Inc., 475 U.S. 41 (1986); Young v. American Mini Theaters, Inc., 427 U.S. 50 (1976); Stringfellow's of New York. Ltd, v. City of New York, 671 N.Y.S.2d 406 (1998); Town of Islip v. Caviglia, 73 N.Y. 2d 544 (1989); and Singer v. Town of East Hartford, 736 F.Supp. 430 (D. Conn. 1989), aff'd 901 F.2d 297 (2d Cir. 1990) (affirming judgment on basis of District Court opinion), and on studies conducted by other communities, including but not limited to New York City, New York (1994); Seattle, Washington (1993); Seattle, Washington (1989); Village of Scotia, New York (1999); Town and Village of Ellicotville, New York (1998); Town of Islip, New York (1980); and Indianapolis, Indiana (1984), and from publications such as "Report to the American Center for Law and Justice on the Secondary Impacts of Sex Oriented Businesses," produced by Peter Hecht, Ph.D. of the Environmental Research Group, and "Adult Uses and the First Amendment: Zoning and Non-Zoning Controls on the Use of Land for Adult Businesses," by Steve McMillen of Pace University Law School, and also on the findings from the Report of the Attorney General's Working Group on the Regulation of Sexually Oriented Businesses (1989, State of Minnesota), the Council finds that:

(1) Adult-oriented businesses are unavoidably associated with unlawful, unhealthy and detrimental activities ancillary to the constitutionally protected speech activities of such businesses.

(2) Employees of adult-oriented businesses engage in or may be requested to engage in sexual behavior as a result of the type of business by which they are employed.

(3) People present in the vicinity of an adult-oriented business are often assumed by third parties to be engaged in, or amenable to, the types of unlawful, unhealthy and detrimental activities ancillary to such businesses. As a result, such persons are subjected to unwanted advances or attention by persons frequenting such adult-oriented business.

(4) People who choose not to frequent adult-oriented businesses tend to avoid areas in which such businesses locate. As a result, areas in which adult-oriented businesses locate often become "dead zones," i.e., areas in which owners of non-adult-oriented businesses tend to choose not to locate in the first instance, or choose to migrate away from, because of diminished pedestrian traffic due to the presence of adult-oriented businesses.

(5) Because non-adult-oriented businesses tend not to locate near, or migrate away from, adult-oriented businesses, the presence of one such business tends to attract other adult-oriented businesses into the dead zone, thereby increasing the pace and intensity of the unlawful, unhealthy and detrimental activities unavoidably associated with such businesses and contributing to the blighting of the area surrounding such businesses. The smaller the municipality, including the City, the larger the effects of a dead zone because the zone encompasses a larger proportion of the municipality's businesses than a similar zone would in a larger City.

(6) Due to the small geographical area of the City of Port Jervis, the probability increases that adult-oriented businesses will have substantial effects upon residential areas within the City. Further, smaller municipalities, including the City, are more likely to have fewer days and hours of commercial activity than a larger City. This increases the likelihood that an adult-oriented business will have a larger effect on the area in which it is located during the off hours of non-adult-oriented businesses.

(7) Sexual acts, including masturbation, occur at adult-oriented businesses, especially those which provide enclosed rooms, booths or other cubicles for viewing of films, videos or live sex shows, thereby creating unhealthy and unsanitary conditions within the premises of such businesses.

(8) The constitutionally protected speech activities presented at adult-oriented businesses often encourages sexual activities, thereby creating unhealthy and unsanitary conditions.

(9) Some patrons frequent adult-oriented businesses for the purpose of engaging in specified sexual activities within the premises of such businesses, thereby creating unhealthy and unsanitary conditions within the premises of such businesses.

(10) Communicable diseases may be spread by specified sexual activities, including but not limited to transmission of the human immunodeficiency virus (HIV) and the contraction of the acquired immunodeficiency syndrome (AIDS), Hepatitis B and venereal diseases.

(11) Venereal diseases, HIV, AIDS and Hepatitis B, as well as other communicable diseases spread by specified sexual activities, are serious health concerns in the local community.

(12) Sanitary conditions in some adult-oriented businesses are unhealthy, in part, because the activities conducted there are unhealthy, and, in part, because of the unregulated nature of the activities engaged in by some patrons of such businesses and the failure of some business owners and operators to self-regulate those activities and maintain the business premises.

(13) Numerous studies and reports have determined that semen and other bodily fluids are found in certain areas of adult-oriented businesses, particularly where persons view, in enclosed rooms, booths or other cubicles, adult materials or entertainments characterized by an emphasis on nudity or specified sexual activities or specified anatomical areas.

(14) Prohibiting the viewing, in enclosed rooms, booths or other cubicles, of adult materials or entertainments characterized by an emphasis on nudity or specified sexual activities or specified anatomical areas is the least restrictive means available effectuating the legitimate and content-neutral legislative goal of preventing adult-oriented businesses from being operated and used in a unhealthy, unsafe and unsanitary manner facilitating the transmission of communicable diseases or otherwise degrading the public welfare, health, comfort and safety. Further, such a prohibition imposes a relatively minor imposition on the operating prerogatives of the owners of adult-oriented businesses compared to other means such as: mandating adult-oriented businesses inspect such cubicles and directing the frequency and form of such inspections, requiring adult-oriented businesses to hire employees whose duties are dedicated to monitoring such cubicles and conducting increased numbers of police and public health and safety inspections of such businesses.

(15) Adult-oriented businesses have operational characteristics which should be reasonably regulated in order to protect the substantial governmental concerns raised by the various findings herein while permitting patrons and owners of such businesses to engage in constitutionally protected speech activities.

(16) The presence of adult-oriented businesses is associated with declining property values.

(17) The presence of adult-oriented businesses is associated with increased crime rates against both property and persons.

(18) Children and teenagers are more likely to be exposed to graphic sexual images because of the presence of adult-oriented businesses.

(19) Because persons patronizing adult-oriented businesses often travel a significant distance to such businesses, these persons tend not to share with City residents the concerns for the quality of life in the City. Consequently, persons from outside the City patronizing such businesses tend to place an inordinate strain on City services and facilities, such as parking, usage of City streets, and trash collection and removal.

(20) The presence of adult-oriented businesses tends to alter the character of the community in which they are located and quality of life for the residents of such community. The City is presently in the process of undergoing a transformation altering both the character and quality of life in the City. The alterations to character and quality of life associated with the presence of adult-oriented businesses are at odds with the goals of the transformation the City is undergoing, and, consequently, the failure to properly regulate adult-oriented businesses could undermine this process.

(21) The City's intent in regulating adult-oriented businesses is not to restrict constitutionally protected speech activities but rather to provide constitutionally sufficient alternate avenues for persons to engage in such activities in a manner consistent with the constitutions of the United States and New York State while addressing the unlawful, unhealthy and detrimental activities ancillary to such speech and ameliorating these secondary effects on the peace, good order, commercial viability and safety of City residents and non-adult-oriented businesses.

(22) The general welfare, health, comfort and safety of the citizens of the City will be promoted by the enactment of this section.

B. Purpose.

(1) The primary purposes of this section are as follows:

(a) To preserve the character and quality of the life of the City's neighborhoods and business and maintain the viability of the City's ongoing process of transformation;

(b) To control the documented adverse secondary effects that are ancillary to adult-oriented businesses as set forth in Subsection A, including decreased property values; attraction of transients; parking and traffic problems; increased crimes against persons and property; loss of business for surrounding non-adult-oriented businesses; and deterioration of neighborhoods;

(c) To maintain property values;

(d) To prevent crime;

(e) To safeguard the continued commercial viability of currently existing non-adult-oriented businesses;

(f) To ensure the continued commercial viability of the City as a location for new non-adult-oriented businesses;

(g) To restrict minors' inadvertent exposure to graphic sexual images;

(h) To preserve and protect public hygiene, health and sanitation; and

(i) To maintain the general welfare, health, comfort and safety of City residents and businesses.

(2) So as to effectuate these purposes, and based upon the findings set forth in Subsection A, such uses shall be subject to the standards and regulations set forth in this section.

C. Location of adult-oriented business. An adult-oriented business shall be permitted, in accordance with the requirements of this section, only in the Central Business District of the City of Port Jervis, as such Central Business District is established under § 535-5 and delineated by the boundaries shown on the Official Zoning Map of the City established under § 535-6.

D. Separation, lot, bulk and parking requirements.

(1) Minimum separation required from sensitive sites. No adult-oriented business shall be located within 500 feet of any sensitive site.

(2) Measurement.

(a) General provision. For the purposes of this section, the distance between an adult-oriented business and a sensitive site shall be measured by following a straight line from the most proximate points between the lot line of such business and the lot line of such site or second such business.

(b) Multi-tenant facility. Where a multi-tenant facility such as a shopping center is involved, measurement shall be made from the most proximate point along the boundary of the leasehold interest of such business or such site rather than the lot line of the facility containing such business or such site.

(3) Minimum separation required from residential districts.

(a) No adult-oriented business shall be located within 300 feet of any area zoned for residential use, as measured in a straight line from the most proximate points between the lot line of the adult-oriented business and the residential zoning district boundary line.

(b) For purposes of this section, any railroad line that passes between the lot line of an adult-oriented business and any residential zoning district boundary line shall constitute a sufficient buffer between said adult-oriented business and said residential district. Such adult-oriented business shall be deemed to meet the minimum separation required from residential districts pursuant to Subsection D(3)(a).

(4) Buildings containing residential uses. No adult-oriented business shall be established or permitted in any building of which any part is used for residential purposes. No residential use shall be established in a building of which any part is used as an adult-oriented business.

(5) Lot, bulk and parking regulations. Adult-oriented businesses shall conform to applicable Central Business District lot, bulk and parking regulations set forth in this chapter, as such regulations may be enacted or amended from time to time.

E. Signs and displays.

(1) General provision. No more than one exterior sign or display not to exceed a surface area of 20 square feet for each side, or a similar interior sign or display visible from the outside of an adult-oriented business, shall be permitted which identifies or portrays the adult-oriented business.

(2) Additional restrictions.

(a) Signs and displays shall not depict or describe specified sexual activities or specified anatomical areas.

(b) Signs and displays may be illuminated or composed of lighted material such as neon but shall not feature flashing illumination.

(3) Additional regulations applicable. In addition to the provisions of this section, signs and displays identifying or portraying an adult-oriented business shall be subject to all regulations applicable to signs and displays within the City of Port Jervis in addition to the requirements of this section.[1]

[1] Editor's Note: See Art. XII, Signs, of this chapter.

F. Interior and exterior lighting. During the period that an adult-oriented business is occupied, it shall be illuminated by sufficient natural or nonflashing artificial light to permit safe ingress and egress to and from the premises.

G. Live performance security. Each adult-oriented business offering entertainment consisting of live performances shall maintain adequate security during hours of operation to ensure the public peace and order. The provisions of this subsection shall require each adult-oriented business offering live performances to employ not less than one uniformed security guard per every 50 or fewer patrons on the premises. For any number of patrons over 50, each adult-oriented business offering live performances shall employ not less than two uniformed security guards. All uniformed security guards shall be employed in accordance with the New York State Security Guard Act of 1992, as may be amended from time to time.[2]

[2] Editor's Note: See Art. 7-A of the General Business Law, § 89-e et seq.

H. Nonconforming buildings or lots. No nonconforming building or lot shall be used for an adult-oriented business. No existing building, lot or use shall be added to, enlarged, expanded in size or converted for purposes of conducting an adult-oriented business so as to render such building, lot or use nonconforming.

I. Termination and amortization of nonconforming adult-oriented businesses.

(1) Termination of nonconforming adult-oriented businesses. Any establishment in existence prior to the effective date of this section which has made financial expenditures for the purpose of operating an adult-oriented business, falls within the definition of an adult-oriented business, and is not in conformity with the requirements of this section shall either conform to the requirements of this section or terminate its operation as an adult-oriented business within two years following the effective date of this section. Such nonconforming uses shall not be increased, enlarged, extended, or altered within the two-year period or any extension thereof, except that the use may be changed to a conforming use.

(2) Zoning Board of Appeals jurisdiction. The Zoning Board of Appeals of the City of Port Jervis shall have the power to hear and decide applications submitted to the Board for the continuation of a nonconforming adult-oriented business made pursuant to this Subsection I. The Board shall hear and decide such applications using the same procedures by which it hears applications for use and area variances pursuant to General City Law § 81-a and § 535-105 of this chapter and subject to the same time constraints for rendering a decision. Submissions of such applications to the Board shall be subject to payment of the same fees and costs as are required by the City from time to time for variance applications.

(3) Amortization of certain nonconforming adult-oriented businesses. Notwithstanding Subsection I(1), the Board may permit an adult-oriented business subject to termination to continue for a limited period of time beyond the two-year period established in Subsection I(1), provided that:

(a) An application is made by the owner of such adult-oriented business to the Board at least 120 days prior to the date on which such business must terminate; and

(b) The Board shall find, in connection with such adult-oriented business, that:

[1] The owner of such a business had made substantial financial expenditures related to such business;

[2] The owner has not recovered substantially all of such financial expenditures; and

[3] The period for which such business may be permitted to continue is the minimum period sufficient for the owner of such business to recover substantially all of such financial expenditures.

J. Prohibited activities. The following shall not be permitted on the premises of any adult-oriented business or other public place within the City of Port Jervis:

(1) Appearance by a person knowingly or intentionally engaging in specified sexual activities;

(2) The knowing and intentional appearance of a person in a state of nudity; or

(3) The use of sound-amplification equipment to amplify a description or discussion of specified anatomical areas or specified sexual activities if:

(a) Such description or discussion is audible beyond the exterior of the structure from which the description or discussion originates; or

(b) Such description or discussion is amplified in a public place.

K. Exception for certain establishments.

(1) Exception. This section shall not be applicable to an establishment otherwise within the definition of an adult-oriented business if not more than 10% of the interior square footage of the establishment accessible to patrons is devoted to the:

(a) Sale, rental, lease, trade, gift or display of adult materials; or

(b) Featuring of entertainment characterized by an emphasis on nudity or specified sexual activities or specified anatomical areas.

(2) Limitations on exemption. Notwithstanding Subsection K(1), this section shall be applicable to an establishment within the definition of an adult-oriented business if:

(a) In the establishment adult materials or entertainments characterized by an emphasis on nudity or specified sexual activities or specified anatomical areas are displayed and featured in a manner that permits minors to access or view such materials or entertainments;

(b) The interior configuration and layout of the establishment requires patrons to pass through an area of the establishment with adult materials or entertainments characterized by an emphasis on nudity or specified sexual activities or specified anatomical areas in order to access an area of the establishment without such materials and entertainments;

(c) The establishment maintains one or more rooms, booths or other cubicles where entertainments characterized by an emphasis on nudity or specified sexual activities or specified anatomical areas are available to patrons;

(d) The establishment uses a method of operation requiring patron transactions with respect to non-adult materials to be made in an area of the store which includes adult materials or entertainments characterized by an emphasis on nudity or specified sexual activities or specified anatomical areas;

(e) The establishment uses a method of operation under which non-adult materials are offered for sale only and adult materials are offered for sale or rental;

(f) The establishment offers a greater number of different titles of adult materials than the number of different titles of non-adult materials;

(g) The establishment uses a method of operation excluding or restricting minors from the establishment as a whole or from any section of the establishment with non-adult materials;

(h) The establishment displays a sign advertising the availability of adult materials or entertainments characterized by an emphasis on nudity or specified sexual activities or specified anatomical areas which is disproportionate in size relative to a sign advertising the availability of non-adult materials, when compared with the proportions of adult materials or entertainments characterized by an emphasis on nudity or specified sexual activities or specified anatomical areas offered by the establishment, or the proportion of the interior square footage of the establishment accessible to patrons containing adult materials or featuring the presentation of an entertainment characterized by an emphasis on nudity or specified sexual activities or specified anatomical areas; or

(i) The establishment features a window display in which the number of items or area of the display of adult materials is disproportionate in size relative to the number of items or area of display of non-adult materials, when compared with the proportion of adult materials and non-adult materials offered for sale, rental, lease, trade, gift or display in the establishment, or the proportion of the interior square footage of the establishment accessible to patrons containing adult materials.

L. Interior configuration and layout.

(1) General provision. An adult-oriented business shall not offer adult materials or entertainments characterized by an emphasis on nudity or specified sexual activities or specified anatomical areas for viewing in rooms, booths or other cubicles if the interior square footage of any one such room, booth or other cubicle is insufficient to accommodate the total number of persons who may lawfully occupy the premises of such business at one time.

(2) Exception. Notwithstanding Subsection L(1), an adult-oriented business may offer adult materials or entertainments characterized by an emphasis on nudity or specified sexual activities or specified anatomical areas for viewing in one or more rooms, booths or other cubicles insufficient to accommodate the total number of persons who may lawfully occupy the premises of such business at one time, provided that:

(a) The interior of each such room, booth or other cubicle is visible without obstruction by merchandise, display racks or other materials at all times from at least 50% of the interior square footage of the establishment accessible to patrons;

(b) Each such room, booth or other cubicle is equipped with overhead lighting fixtures of sufficient intensity to illuminate every place to which patrons are permitted access at an illumination of not less than five footcandles as measured at floor level and such illumination is maintained at all times patrons are present on the premises;

(c) There is no opening of any kind between such rooms, booths or other cubicles; and

(d) No such room, booth or other cubicle is equipped with a nontransparent door, curtain or any similar device which may be used to block the view into each such room, booth or other cubicle.

§ 535-13.1 Orange County Greenway Compact.

By Local Law No. 4 of the year 2015 the City of Port Jervis has adopted the Orange County Greenway Compact, as amended from time to time, as a statement of land use policies, principles and guides. In its discretionary actions under this zoning law, the reviewing agency should take into consideration said statement of policies, principles and guides.