[Added 8-3-1998 by TOR-98-4]
This article is enacted pursuant to MGL c. 40A,
and pursuant to the Town of Agawam's authority under the Home Rule
Amendment to the Massachusetts Constitution to serve the compelling
Town interests of limiting the location of and preventing the clustering
and concentration of certain adult entertainment uses, as defined
and designated herein, in response to studies demonstrating their
deleterious effects.
It is the purpose of this adult entertainment
article to address and mitigate the secondary effects of the adult
entertainment establishments and sexually oriented businesses that
are referenced and defined herein. Secondary effects have been shown
to include increased crime, adverse impacts on public health, adverse
impacts on the business climate of the Town of Agawam, adverse impacts
on the property values of residential and commercial properties and
adverse impacts on the quality of life in the town. All of said secondary
impacts are adverse to the health, safety and general welfare of the
Town of Agawam and its inhabitants. The provisions of this article
have neither the purpose nor intent of imposing a limitation on the
content of any communicative matter or materials, including sexually
oriented matter or materials. Similarly, it is not the purpose or
intent of this article to restrict or deny access by adults to adult
entertainment establishments or to sexually oriented matter or materials
that are protected by the Constitutions of the United States or of
the Commonwealth of Massachusetts, nor to restrict or deny rights
that distributors or exhibitors of such matter or materials may have
to sell, rent, distribute or exhibit such matter or materials. Neither
is it the purpose or intent of this article to legalize the sale,
rental, distribution or exhibition of obscene or other illegal matter
or materials.
As used in this article, the following terms
shall have the meanings indicated:
Include the following uses:
A.
Adult bookstores, as defined in MGL c. 40A, § 9A.
B.
Adult motion-picture theaters, as defined by MGL c.
40A, § 9A.
C.
Adult paraphernalia store, as defined by MGL c. 40A,
§ 9A.
D.
Adult video store, as defined by MGL c. 40A, § 9A.
E.
Establishment which displays live nudity for its patrons,
as defined by MGL c. 40A, § 9A.
Adult entertainment uses shall be prohibited
in all zoning districts except as otherwise permitted in this article
and may be permitted only upon the grant of a special permit by the
Board of Appeals. An adult entertainment use special permit shall
not be granted unless each of the following standards has been met.
A.
The application for a special permit for an adult
entertainment use shall provide the name and address of the legal
owner of the establishment, the legal owner of the property and the
manager of the proposed establishment. The owners and managers shall
be considered coapplicants.
B.
No adult use special permit shall be issued to any
person convicted of violating the provisions of MGL c. 119, § 63,
or MGL c. 272, § 28.
C.
Location.
(1)
Adult entertainment uses shall not be located within:
(a)
One thousand five hundred feet from any district
designated by the Agawam Zoning Ordinance for residential use; or
(b)
One thousand five hundred feet from the nearest
church, school, park, playground, play field, youth center; or
(c)
One thousand five hundred feet from the nearest
adult entertainment use as defined herein; or
(d)
One thousand five hundred feet from the nearest
establishment licensed under MGL c. 138, § 12.
(2)
The distances specified above shall be measured by
a straight line from the nearest property line of the premises on
which the proposed adult entertainment use is to be located to the
nearest boundary line of a residential zoning district or to the nearest
property line of any of the other designated uses set forth above.
D.
All building openings, entries and windows shall be
screened in such a manner as to prevent visual access to the interior
of the establishment by the public. In no way shall such screening
prevent public safety personnel from entering the premises at any
time without the use of special tools or equipment.
E.
No adult entertainment use shall be allowed to display
for advertisement or other purpose any signs, placards or other like
materials to the general public on the exterior of the building or
on the interior where the same may be seen through glass or other
like transparent material any sexually explicit figures or words as
defined in MGL c. 272, § 31.
F.
No adult entertainment use shall be allowed to disseminate
or offer to disseminate adult matter or paraphernalia to minors or
suffer minors to view displays or linger on the premises or enter
into the premises.
G.
Off-street parking shall be provided in compliance
with Town regulations and shall be designated so as not to obstruct
police patrol views of the premises.
H.
No adult entertainment use shall have any flashing
lights or neon or other fluorescent lights visible from outside the
establishment.
I.
No adult entertainment use shall have a freestanding
accessory sign.
J.
No adult entertainment use shall be established prior to submission and approval of a site plan by the Board of Appeals. The site plan shall depict all existing and proposed buildings, parking spaces, driveways, service areas and other open uses. The site plan shall show the distances between the proposed adult entertainment use and the boundary of the nearest residential zoning district and the property line of each use of the use set forth in Subsection C above.
K.
The owners and managers of an establishment granted
an adult entertainment use special permit shall not permit any obscene
matter, material or conduct, as defined in MGL c. 272, § 31,
on the premises.
L.
Special permits issued by the special permit granting
authority shall require the unanimous vote of the three members of
the special permit granting authority. If the special permit granting
authority has more than three members, the vote shall be as provided
for in MGL c. 40A.
The special permit granting authority may impose
reasonable conditions, safeguards and limitations on time or use of
any special permit granted and shall require that any such special
permit granted shall be personal to the applicant, shall not run with
land and shall expire upon expiration of the applicant's lease or
upon sale or transfer of the subject property.
The special permit granting authority may suspend
or revoke a special permit granted hereunder for any violation of
the special permit, for any violation of the Town of Agawam ordinances
and/or for any violation of state or federal law.
A special permit to conduct an adult entertainment
use shall expire after a period of one calendar year from its date
of issuance and shall automatically be renewable for a successive
one-year period thereafter, provided that a written request for such
renewal is made to the special permit granting authority prior to
said expiration and that no objection to said renewal is made and
sustained by the special permit granting authority based upon the
public safety factors applied at the time that the original special
permit was granted.
The provisions of this article are severable,
and, in the event that any provision of this article is determined
to be invalid for any reason, the remaining provisions shall remain
in full force and effect.
