ORDINANCE NO. 971193

 

Amending Chapter 80, Code of Ordinances, by repealing Section 80-156, District C-X (adult entertainment), and enacting in lieu thereof a new section of like number and subject matter.

 

WHEREAS, the Mayor and City Council of the City of Kansas City, Missouri, find that a substantial need exists to amend its existing zoning regulations regarding definitions of adult businesses within the City of Kansas City; and

 

WHEREAS, the United States Supreme Court in Young v. American Mini Theaters, Inc., 427 U.S. 50 (1976) held that adult business uses of property may be subject to carefully tailored municipal regulations that seek to minimize the adverse land use impacts of such adult business uses, and that the zoning power of local governments may legitimately be utilized to regulate such uses by establishing zones where adult business uses are most compatible with other uses and/or surrounding neighborhoods and prohibiting such adult business uses in certain zoned areas and between said adult uses and other uses of property that are affected by said uses; and

 

WHEREAS, the United States Supreme Court in City of Renton v. Playtime Theater, Inc., 475 U.S. 41 (1986) held that local governments may rely upon the experiences of other cities in enacting local legislation to regulate adult business uses and may regulate said uses through content-neutral, time, place, and manner restrictions, so long as said regulations are designed to serve the government interest and do not unreasonably omit avenues of communication, and are aimed not at the content of protected speech within said establishments but rather at the secondary effects of said establishments on the surrounding communities; and

 

WHEREAS, the Georgia Supreme Court in Chambers d/b/a Neon Cowboy v. Peach County, Georgia, 266 Ga. 318 (1996) held that local governments may adopt ordinances designed to combat the undesirable secondary effects of sexually explicit adult businesses and further held that a governing authority seeking to regulate adult business establishments must rely upon evidence of a relationship between the proposed regulations and the undesirable secondary effects it seeks to control; and

 

WHEREAS, the Mayor and City Council of the City of Kansas City have considered said secondary effects of these adult businesses in the past when regulating said businesses and thereby reiterate their grave concern over secondary effects from said adult businesses as one of the basis for regulating these businesses; and

 

WHEREAS, the Mayor and City Council have obtained copies of studies regarding secondary effects of adult businesses on surrounding communities from the cities of Phoenix, Arizona; Tucson, Arizona; Garden Grove, California; Los Angeles, California; Whittier, California; Indianapolis, Indiana; Minneapolis, Minnesota; St. Paul, Minnesota; Cleveland, Ohio; Oklahoma City, Oklahoma; Amarillo, Texas; Austin, Texas; Beaumont, Texas; Houston, Texas; Newport News, Virginia; and Seattle, Washington; and

 

WHEREAS, the Mayor and City Council find that these studies are of direct relevance to the problems confronting the citizens of the City of Kansas City regarding the secondary effects on the surrounding communities of said adult business uses and believe that the regulations which currently exist and which follow are aimed at reducing these pernicious secondary effects; and

 

WHEREAS, the Mayor and City Council have provided a forum for testimony and comments from the public and from affected businesses regarding these proposed regulations and have reviewed the evidence presented at public hearing from the City Plan Commission, the Kansas City Police Department, the public, and other interested parties which evidence further establishes a direct link between adult businesses and secondary effects upon surrounding communities that are deleterious to said community and establish further need for regulations of these adult business establishments; and

 

WHEREAS, the Mayor and City Council, from a review of other cities' studies, have found convincing documented evidence that sexually oriented businesses because of their very nature have a deleterious effect on surrounding residential areas causing adverse secondary effects; and

 

WHEREAS, all of this evidence and documentation provides a sound foundation for the existing and following regulations that seek to advance the public health, safety, and welfare by providing neutral regulations governing the location of adult businesses within the City of Kansas City; NOW, THEREFORE,

 

BE IT ORDAINED BY THE COUNCIL OF KANSAS CITY:

 

Section A. That Chapter 80, Code of Ordinances of the City of Kansas City, Missouri, 1996, commonly known as the Zoning Ordinance, is hereby amended by repealing Section 80-156, District C-X (adult entertainment), by enacting in lieu thereof a new section of like number and subject matter, to read as follows:

 

Sec. 80-156. District C-X (adult entertainment).

 

(a) Purpose. The purpose of district C-X is to identify and prescribe specific requirements and conditions for the location of certain defined adult entertainment activities. The district is designed as an overlay district in certain zoning districts based on the regional character of the activities. Adult entertainment uses do not occur on a frequent basis and require separate and specifically designed regulations for their development. Such adult entertainment uses are recognized as having serious objectionable operational characteristics, particularly if several of such uses are concentrated, thereby having a deleterious effect upon adjacent areas. The location of such uses has an additional deleterious effect upon adjacent areas and could contribute to the blighting and downgrading of the surrounding neighborhood. The special regulation of adult entertainment uses is necessary to ensure that the adverse effect of such uses will not contribute to the blighting or downgrading of surrounding neighborhoods, whether residential or nonresidential, by location or concentration, and to ensure the stability of such neighborhoods.

 

(b) Definitions. The definitions stated in this subsection shall apply for purposes of this section:

 

(1) Adult bookstore or adult novelty store means an establishment having a substantial or significant portion of its stock in trade in books, photographs, magazines, films for

sale or viewing on the premises by use of motion picture devices or other coin-operated means, or other periodicals which are distinguished or characterized by their

principal emphasis on matters depicting, describing or relating to specified sexual

activities, as the term is defined in this section; or sexual aids or novelties depicting

a breast, penis, or clitoris; or sexual aids or novelties which graphically describe,

through words or pictures on the packaging, specified sexual activities as the term is

defined in this section. Substantial or significant portion means an establishment

having twenty percent (20%) of its stock in trade in the above-described materials,

having twenty percent (20%) of its gross sales in the above-described materials or

having twenty percent (20%) of its floor area devoted to the sale, rental or storage of

the above-described materials.

 

(2) Adult entertainment facility means any building, structure or facility which contains or is used for commercial entertainment, including theaters used for presenting live

presentations, videotapes or films predominantly distinguished or characterized by

their principal emphasis on matters depicting, describing or relating to specified

sexual activities, as the term is defined in this section, and exotic dance facilities,

regardless of whether the theater or facility provides a live presentation, videotape

or film presentation, where the patrons either:

 

a. Engage in personal contact with or allow personal contact by employees,

devices or equipment or by personnel provided by the establishment which

appeals to the prurient interest of the patrons; or

 

b. Observe any live presentation, videotape or film presentation of persons

wholly or partially nude with their genitals or pubic region exposed or

covered only with transparent or opaque covering or, in the case of female

persons, with the areola and nipple of the breast exposed or covered only with

transparent or opaque covering, or observe specified sexual activities, as the

term is defined in this section.

 

(3) Bathhouse means an establishment or business which provides the services of baths of all kinds, including all forms and methods of hydrotherapy, unless operated by a

medical practitioner or professional physical therapist licensed by the state.

 

(4) Day care facility means an establishment or business which provides supervision of facilities for preschool children or provides before or after or summer care for

schoolage children.

 

(5) Massage shop means an establishment which has a fixed place of business having a source of income or compensation derived from the practice of any method of

pressure on or friction against, or stroking, kneading, rubbing, tapping, pounding,

vibrating or stimulation of, external parts of the human body with the hands or with

the aid of any mechanical, electric apparatus or appliances with or without such

supplementary aids as rubbing alcohol, liniments, antiseptics, oils, powders, creams,

lotion, ointment or other similar preparations commonly used in the practice of

massage, under such circumstances that it is reasonably expected that the person to

whom the treatment is provided or some third person on his or her behalf will pay

money or give any other consideration or gratuity; provided that this term shall not

include any establishment operated by a medical practitioner or professional physical

therapist licensed by the state.

 

(6) Modeling studio means an establishment or business which provides the services of modeling for the purpose of reproducing the human body wholly or partially in the

nude by means of photography, painting, sketching, drawing or otherwise.

 

(7) Museum means any government or nonprofit institution devoted to the procurement, care and display of objects of lasting interest or value which is open to the general

public.

 

(8) Park means any city, county, state or federal public park.

 

(9) Residential district means, for the purposes of this section, areas zoned for residential use are defined as districts R-1, RA, R-2, R-3, R-4, R-4-O, R-5, R-5-O, R-6, GP-7,

GP-6, GP-5, GP-4, GPA, GPR-1 and GPR-2.

 

(10) Residential building means a building which is primarily designed and devoted for human habitation, excluding motels and hotels.

 

(11) Specified sexual activities means sexual conduct, being acts of masturbation, homosexuality, sexual intercourse or physical contact with a person's unclothed

genitals, pubic area, buttocks or, if such person is a female, her breasts; sexual

excitement, being the condition of human male or female genitals when in a state of

sexual stimulation or arousal; or sadomasochistic abuse, being flagellation or torture

by or upon a person or the condition of being fettered, bound or otherwise physically

restrained.

 

(c) Establishment of overlay district. An overlay district C-X shall be established as follows:

 

(1) District C-X shall be established only by amendment of the zoning maps in accordance with section 80-360, and in accordance with the provisions of sections

80-330, 80-335 and 80-355, provided that the city plan commission shall recommend

and the city council shall find that the proposed district C-X meets all of the

requirements without exception described in subsections (c), (d) and (e) of this

section, and further that the proposed use to be constructed or operated will neither

negatively impact nor materially injure property within 1,000 feet of the proposed

district boundaries.

 

(2) No district C-X shall be established without the submission and approval of a site development plan. Failure to comply with the plan so approved and established as

part of the district C-X shall be deemed to be a violation of this chapter and

enforceable under sections 80-400, 80-410 and 80-420.

 

(3) A district C-X shall be established as an overlay district and only in districts C-3, C-4, M-1, M-2 and M-3.

 

(4) A district C-X shall be established only if the boundaries of the district are a minimum of 1,000 feet from any church or place of worship, day care facility, park,

educational institution, library, museum, community center, residential district,

children's amusement park or residential building.

 

(d) Location and site requirements for permitted uses. Any adult bookstore, adult novelty store, adult entertainment facility, bathhouse, massage shop or modeling studio shall meet the following location and site requirements:

 

(1) Not more than two of such uses, excluding any uses having a certificate of legal nonconformance, shall be located within 1,500 feet of each other (regardless of

whether such uses are located in the same facility or separate facilities) as measured

in a straight line from the lot line of the affected properties.

 

(2) All access shall be provided from a major thoroughfare.

 

(3) The property on which such use is located shall have a minimum of 50 feet of street frontage.

 

(4) The property on which the use is located shall be screened by a solid masonry wall at least six feet in height along the side and rear property lines provided that the

parking lot devoted to said use may be screened by decorative fencing such as

wrought iron or brick and need not be screened by a solid masonry wall.

 

(5) The facility on which the use is located and the parking for such facility shall have a front yard setback of 20 feet, a side yard setback of ten feet, and a rear yard setback

of ten feet provided that where the use is proposed in an existing building and

parking lot, the setback requirements need not be met.

 

(6) The parking requirements as provided in section 80-444 shall be met, as well as the loading requirements of section 80-445 provided that the council may approve a

development plan without the required section 80-444 parking where the parking

provided is consistent with solid planning principles in consideration of anticipated

use, mass transit accessibility and off-site parking availability. The parking provided

on the development plan shall remain available and shall be the basis of a violation

if not provided.

 

(7) If the parking and maneuvering space of any parking lot exceeds 7,500 square feet, at least five percent of the lot area shall be maintained as landscaped area; provided

that a credit toward the overall required landscaped area may be provided if the

landscaping provides for trees either at least 15 feet in height or at least three inches

in diameter for each 2,000 square feet of required landscaped parking area.

Additionally, 15 percent of the entire lot area, including parking area, shall be

maintained as an open landscaped area with a 20-foot landscape buffer along all

street frontage. Provided that the council may approve development plan where an

appropriate alternative is proposed for an existing building and parking lot such as

decorative wrought iron or brick fencing.

 

(8) The facility in which the use is located shall be designed in such a fashion that all openings, entries and windows prevent view into such facilities from any pedestrian

sidewalk, walkway, street or other public area provided that the development plan

may provide for openings into such facility where needed for security reasons

provided no merchandise or pictures can be viewed from the sidewalk in front of the

building.

 

(9) The facility in which such use is located shall be limited to one wall-mounted sign no greater than one square foot of sign area per linear foot of wall length, not to

exceed a total of 50 square feet provided that the council may approve the location

of up to three signs which collectively shall not exceed a total of 50 square feet in

area. The signs(s) shall not flash, blink or move by mechanical means and shall not

extend above the roofline of the building. Further, no merchandise or pictures of

products or entertainment on the premises shall be displayed in window areas or any

area where such merchandise or pictures can be viewed from the sidewalk in front

of the building. No flashing lights or lighting which leaves the impression of motion

or movement shall be permitted.

 

(e) Site plan. The site plan accompanying the application for approval of an overlay district C-X shall include the following information:

 

(1) The site plan shall be drawn at a scale of one inch equals 100 feet or larger.

 

(2) The site plan shall delineate the property lines of the proposed project.

 

(3) The site plan shall delineate existing rights-of-way and easements.

 

(4) The site plan shall delineate the general location and width of all proposed streets and public rights-of-way, such as alleys, pedestrian ways and easements.

 

(5) The site plan shall delineate the solid masonry screening as provided in subsection (d) of this section.

 

(6) The site plan shall delineate the proposed building layout with the front, side and rear building setbacks as required in subsection (d) of this section.

 

(7) The site plan shall characterize the proposed usage of the building and description of the proposed use by type, character and intensity.

 

(8) The site plan shall delineate the location and number of parking spaces, and the proposed parking and loading ratio and its location requirements in accordance with

subsection (d) of this section.

 

(9) The site plan shall delineate all points of access and egress in accordance with subsection (d) of this section.

 

(10) The site plan shall present, in tabular form, the proposed net density of the use, providing the number of seats, employees or other applicable unit of measure.

 

(11) The site plan shall delineate the gross floor area of the building or structure.

 

(12) The site plan shall detail the proposed stages of construction for all land in development and improvements with the proposed district.

 

(13) The site plan shall describe the landscaping to be provided.

 

(14) The site plan shall delineate the proposed exterior lighting in accordance with subsection (d) of this section.

 

(15) The site plan shall delineate the proposed architectural details of the facility in accordance with subsection (d) of this section.

 

(16) The site plan shall indicate the signage in accordance with subsection (d) of this section.

 

(17) The site plan shall set forth any other information necessary for determination of the suitability of the proposed use for the site.

 

(f) Location of uses outside C-X district. No adult bookstore, adult novelty store, adult entertainment facility, bathhouse, massage shop or modeling studio shall be permitted except within district C-X, subject to the provisions of section 80-230.

 

Section B. That the Council finds and declares that before taking any action on the proposed amendment hereinabove, all public notices and hearings required by the Zoning Ordinance have been given and had.

 

_________________________________________________________________

 

I hereby certify that as required by Chapter 80, Code of Ordinances, the foregoing ordinance was duly advertised and public hearings were held.

 

 

_____________________________________

Secretary, City Plan Commission

 

Approved as to form:

 

 

 

_____________________________________

Assistant City Attorney