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.
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]
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.
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.
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.
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.
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.
(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]
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:
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:
(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.
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.