CHAPTER 17.90: REGULATION OF ADULT BUSINESSES
Section
17.90.005 Definitions [Repealed]
17.90.010 Application of chapter
17.90.015 Conditional use permit required
17.90.020 Applications for conditional use permits
17.90.025 Action on permit applications
17.90.030 Physical requirements
17.90.035 Operational requirements
17.90.040 Revocation of permits
17.90.050 Amortization of nonconforming uses
17.90.055 Penalties and remedies
17.90.005 Definitions. [Repealed by Ord. No. 05-182(AM), § 2, 2005]
17.90.010 APPLICATION OF CHAPTER.
(A) [Repealed by Ord. No. 05-182(AM), § 3, 2005]
(B) Unless otherwise specified by code, this chapter is applicable in all areas of the Matanuska-Susitna Borough outside the city limits of Houston, Palmer, and Wasilla.
(C) This chapter is applicable within special land use districts and other areas designated by ordinance that require conditional use permits for commercial or industrial uses but do not provide specific standards for regulation of adult businesses.
(D) This chapter is applicable within special land use districts and other areas designated by ordinance where commercial or industrial use is a permitted use by right and adult businesses are not specified as a permitted use by right, except that this chapter shall not authorize adult business as a neighborhood commercial use, home based business, or home occupation.
(E) This chapter is not applicable to adult businesses that provide the adult services and products exclusively through computer, telephone, or mail order and that do not allow physical access to the premises by patrons.
(Ord. 05-182(AM), § 3, 2005; Ord. 94-097(sub1), § 2 (part), 1994)
17.90.015 CONDITIONAL USE PERMIT REQUIRED.
(A) Except as provided in MSB 17.90.050, no adult business that allows access to the premises by patrons may be operated or maintained in the borough unless a conditional use permit has been approved for that use by the commission in accordance with this chapter.
(B) A permit may be issued only for one adult business located at any one fixed and certain place. Any person who desires to operate more than one adult business must have a separate conditional use permit for each adult business at more than one location.
(C) A permit issued under this chapter cannot be transferred to another location, owner, manager, or applicant.
(D) Each permit shall be effective for 12 months. After three years of continuous operation without violations of this code, each permit shall become effective for 24 months.
(Ord. 05-182(AM), § 4, 2005; Ord. 94-097(sub1), § 2 (part), 1994)
17.90.020 APPLICATIONS FOR CONDITIONAL USE PERMITS.
(A) Applications for conditional use permits under this chapter shall be made on a form provided by the planning and land use department. Applications shall be dated by and filed with the planning clerk.
(B) Applications for conditional use permits shall contain:
(1) the name of the adult business and its address, the name of the owner, and legal description of the property upon which the business will be located;
(2) the written authorization of the owner of the property, including land and buildings, for the applicant to use that property as proposed;
(3) the name, including all aliases, and current mailing address of every person who has an ownership interest in the adult business. The application shall also identify a natural person as the contact person for purposes of the application and official communications from the borough;
(4) the name, including all aliases, and current mailing address of the person or persons who will operate or manage the business. Written proof that each person who would operate or manage the business is at least 18 years of age shall also be provided;
(5) fingerprints and two portrait photographs at least two inches by three inches of person or persons who will operate or manage the adult business;
(6) if the applicant is a corporation, the name of the corporation, the date and state of incorporation, the name and address of its registered agent, the name and address of all shareholders owning more than five percent of the stock in such corporation, and all officers and directors of the corporation;
(7) a detailed exterior site plan or as-built drawing prepared to scale by a qualified registered surveyor or professional engineer and approved by the state fire marshal which shows the location and dimensions of the real property used for the business, the exterior dimensions of the building or structure to be used for the adult business, the height and bulk of the building or structure, exterior signage detail, all points of pedestrian and vehicle access, buffering and landscaping, drainage, traffic circulation patterns, exterior illumination, location of employee and customer parking;
(8) a detailed interior site plan or as-built drawing prepared to scale by a qualified registered architect or professional engineer and approved by the state fire marshal which shows interior dimensions of the building or structure in which the adult business will be operated, as well as the dimensions and location of all walls, booths, enclosures, rooms, structures, fire exits, signage, mechanical areas, stairways, and walkways;
(9) a detailed plan of operations which demonstrates how the applicant will operate the business in a manner consistent with this chapter; and
(10) a non-refundable application fee, established by the assembly, and made payable to the Matanuska-Susitna Borough.
(C) The applicant shall pay the costs of postage for all mailings to property owners, community councils, and other parties required for action on the permit applications.
(Ord. 05-182(AM), § 5, 2005; Ord. 94-097(sub1), § 2 (part), 1994)
17.90.025 ACTION ON PERMIT APPLICATIONS.
(A) The planning and land use director shall determine whether an application for a conditional use permit under this chapter meets the requirements of MSB 17.90.020. Within 15 days of receipt of an application, the planning and land use director shall provide the applicant with a written determination of completeness and explanation of any deficiency. If the application is determined to meet the requirements of MSB 17.90.020, the planning and land use director shall forward the application and the director’s analysis and recommendations to the commission for public hearing. The public hearing shall take place within 120 days of the written determination of completeness under this section to allow for approximately a 30-day in-house review period, a 60-day public comment period, and a 30-day public notice period.
(B) An application which conforms to MSB 17.90.020 shall be heard by the commission at a public hearing. Notice of the public hearing shall be provided under MSB 17.03, except that notice shall be published and mailed at least 30 days before the date of the public hearing to all property owners within at least 1,000 feet of the exterior boundary of the property described in the application.
(C) After a public hearing, and upon review of the planning and land use director’s analysis and recommendations, the commission shall consider:
(1) whether the proposed use, even with mitigation, would be incompatible with and adversely affect surrounding residential neighborhoods;
(2) whether the use would tend to encourage or facilitate crime in the surrounding area;
(3) whether the proposed use would adversely affect property values of surrounding areas;
(4) whether the proposed use would create unreasonable noise, visual blight, glare, obtrusive advertising, or dust;
(5) whether the proposed use would adversely affect the safe and efficient flow of traffic on any highway, arterial, collector, or street from which access to and from the business;
(6) whether there are adequate parking facilities to accommodate a reasonably expected increased demand for parking generated by the business;
(7) the effectiveness of any measures proposed by the applicant or any other person to reduce any negative effect upon adjacent residential neighborhoods by property line buffers and roadway buffers, planted berms, landscaping, reduction or elimination of obtrusive or garish signing or other features, lowered building elevation, clustering with other commercial establishments, and use of frontage roads to reduce the number of entries and exits onto highways, arterials, and collectors, and, where surrounding area is predominantly residential in character, site, and building design features that contribute to the residential character of surrounding development; and
(8) whether the proposed site plans and plan of operations, together with any amendments thereto, are consistent with the purposes of this chapter.
(D) Within 30 days of the public hearing on an application made under this chapter the commission shall render a decision on the application, make specific findings required by law, and grant or deny the application.
(E) The commission may grant a conditional use permit under this chapter only if the applicant shows, and the commission finds:
(1) that the proposed use is compatible with or will not materially detract from the value, character, and integrity of surrounding residential areas;
(2) that granting the conditional use permit will not be harmful to the public health, safety, convenience, and welfare; and
(3) that the proposed use will not con-tribute to crime, noise, litter, traffic congestion, visual blight, juvenile delinquency in areas surrounding the business.
(F) In granting any application, the commission shall require the applicant to comply with the interior and exterior site plans and the plan of operation as approved by the commission, together with the physical and operational requirements of this chapter. The commission may also require the applicant to comply with such additional conditions necessary to ensure the compatibility of the proposed use with surrounding property.
(G) If the commission denies an application for a permit under this chapter, it shall make specific findings explaining how the proposed use does not conform to the requirements of this chapter.
(Ord. 05-182(AM), § 6, 2005; Ord. 94-097(sub1), § 2 (part), 1994)
17.90.030 PHYSICAL REQUIREMENTS.
(A) No adult business may be located within one mile of any other adult business, less than 1,000 feet from a church or other place of worship, child care facility, playground or playing field, public or private school, or any premises licensed for the sale or service of alcoholic beverages, or less than 750 feet from a residential area or school bus stop that was designated at the time of the application by the Matanuska-Susitna Borough School District. In this subsection, the term “residential area” means any subdivision of four or more lots where at least 50 percent of the lots are improved with single-family or multifamily structures, or a subdivision of four or more lots where at least 75 percent of the lots are restricted by private covenants or zoning to residential purposes.
(B) Exterior signs identifying the business are allowed only if they are physically attached to the building or structure used for the business. Signs may not exceed 32 square feet in area, and must be constantly illuminated during nighttime hours while the premises is open to the public. Portable signs, signs mounted on top of buildings, flashing, rotating, animated, or intermittently lighted signs are prohibited.
(C) Sufficient parking shall be provided on the property to accommodate all patrons and employees. Exterior parking areas for customers and employees shall be illuminated.
(D) Individual booths, rooms, or cubicles may not be made available for the private viewing of adult entertainment by patrons of an adult business unless each:
(1) is completely accessible to and from aisles and public areas of the adult business and shall be unobstructed by any door, lock, or other closing device;
(2) is physically separated by a wall of at least six feet high from adjacent booths, rooms, cubicles, and non public areas;
(3) has at least one side totally open to a public, lighted aisle so that there is an unobstructed view at all times of anyone occupying same;
(4) is constructed with three walls constructed without openings, extended from the floor to a height of not less than six feet high, and finished with a light colored, nonabsorbent, smooth textured, and easily cleanable paint or protective coating;
(5) contains a floor that is light colored, nonabsorbent, smooth textured, and easily cleanable;
(6) is illuminated at all times with electric lighting of at least 10 foot candles at all times as measured from the floor when the booth is not in operation; and
(7) is occupied by only one individual at any time.
(Ord. 94-097(sub1), § 2 (part), 1994)
17.90.035 OPERATIONAL REQUIREMENTS.
(A) Hours of operation. Adult businesses may operate only between the hours of 10 a.m. to 12 midnight.
(B) Adult businesses may not allow persons under the age of 18 on premises at any time.
(C) Adult business may not employ, hire, or engage the services of any person to manage or operate the business if that person has been convicted of a felony of any type, or of any misdemeanor involving prostitution or prostitution related offenses, gambling, assault, battery, possession, sale, or distribution of pornographic materials. On request of the planning and land use director, the owner or manager of an adult business shall supply proof satisfactory to the borough, including signed releases, where necessary to verify continued compliance with this subsection.
(D) Operators and managers shall take reasonable measures to ensure that occupants of individual booths, rooms, or cubicles do not engage in any type of sexual activity, cause any bodily discharge, or litter while in the booth.
(E) The sale, service, and consumption of alcoholic beverages in any premises used for an adult business, is prohibited.
(F) Amplified sound may not be broadcast outside buildings and structures used for adult businesses.
(G) Conditional use permits and the terms and conditions imposed by the commission shall be displayed on the premises for which the permit is issued and in a location readily seen by patrons.
(H) Every adult business shall require its operator or manager to ensure that no bottles, litter, trash, garbage, junk, or other refuse is stored or abandoned by any person on site except in sanitary, closed receptacles.
(I) Every adult business shall ensure that the documents and information supplied to the borough in connection with approval of a conditional use permit remain current and are periodically updated where necessary.
(J) All applicable building and fire code provisions shall apply to the occupancy of the premises for which the permit is issued.
(Ord. 05-182(AM), § 7, 2005; Ord. 94-097(sub1), § 2 (part), 1994)
17.90.040 REVOCATION OF PERMITS.
(A) A conditional use permit may be revoked for any of the following reasons:
(1) any willful violation of this chapter or the terms and conditions of a permit issued under this chapter by the operator or manager of an adult business, or any person having an ownership interest in the adult business; and
(2) a material misrepresentation of fact by the operator or manager of an adult business, or any person having an ownership interest in the adult business in connection with the original application for a conditional use permit.
(B) Upon the request of the planning and land use director and with the same notice to the applicant and public as required under MSB 17.90.025 for consideration of new applications, the commission shall conduct a public hearing over whether a conditional use permit issued under this chapter shall be revoked or modified. No permit may be revoked or modified by the commission unless the person or entity to whom the permit was originally issued and the legal owner of the real property upon which the business is conducted has been given advance notice of the hearing scheduled under this section, an explanation prepared by the planning and land use director of the reasons for the proposed action, and an opportunity to be heard before the commission.
(Ord. 94-097(sub1), § 2 (part), 1994)
17.90.045 APPEALS.
An appeal from a decision of the commission granting, denying, revoking, or modifying a conditional use permit under this chapter or action of the commission with respect to amortization of a nonconforming adult business under MSB 17.90.050 may be filed by any aggrieved party under MSB 15.39.
(IM 96-013, page 1 (part), presented 3-19-96; Ord. 94-097(sub1), § 2 (part), 1994)
17.90.050 AMORTIZATION OF NONCONFORMING USES.
(A) Existing adult businesses lawfully established before the effective date of this chapter or amendment thereto, which are made nonconforming by this chapter, may continue to exist as preexisting legal nonconforming uses only if they obtain an amortization permit from the commission in accordance with this chapter.
(B) An application for an amortization permit must be submitted to the planning and land use director within 90 calendar days of the effective date of the ordinance that made the use nonconforming and shall contain the following:
(1) the information and submittals described in MSB 17.90.020(B)(1) through (10); and
(2) financial information demonstrating the actual capital investment made in the business.
(C) Upon receipt of an application for an amortization permit under this section which conforms to subsection (B) of this section, the planning and land use director shall forward that application, together with the director’s analysis and recommendations, to the commission. On receipt of an application and the planning and land use director’s recommendation, the commission shall conduct a public hearing with advance notice to the applicant and to the public as provided in MSB 17.90.025(B).
(D) After a public hearing, the commission shall determine an appropriate period of time, expressed in months or years, during which a nonconforming adult business may continue business operations under this section. In making that determination, the commission shall consider:
(1) the actual investment made by the owner in the nonconforming adult business and a reasonable rate of return on that investment;
(2) the public interest associated with the products and services lawfully offered by the adult business, together with any adverse impact continuation of the business may have on surrounding uses of land; and
(3) the compatibility of the adult business with the future development of land uses in the surrounding area.
(E) In connection with approval of an amortization permit under this section, the commission may impose reasonable requirements governing:
(1) physical requirements in accordance with MSB 17.90.030;
(2) operational requirements in accordance with MSB 17.90.035;
(3) the authorized physical space of a structure and site where adult business activities may occur; and
(4) the authorized maximum occupancy limit for physical space of a structure and site where adult business activities may occur.
(5) [Repealed by Ord. 05-182(AM), § 8, 2005];
(6) [Repealed by Ord. 05-182(AM), § 8, 2005].
(F) Existing adult businesses lawfully established before the effective date of the ordinance codified in this chapter shall be allowed to continue operating while an application for amortization permit is pending application or appeal, including a judicial determination by the superior court.
(Ord. 05-182(AM), § 8, 2005; Ord. 94-097(sub1), § 2 (part), 1994)
17.90.055 PENALTIES AND REMEDIES.
(A) This chapter and the terms and conditions of any conditional use or amortization permit issued under this chapter may be enforced under MSB 17.56.
(B) In addition to the penalties provided under MSB 17.56, violations of this chapter or the conditions of any permit issued under this chapter may result in suspension or revocation of the permit in accordance with MSB 17.90.040.
(C) Authorized representatives of the Alaska State Department of Public Safety or the Matanuska-Susitna Borough shall have the authority to enter any adult oriented establishment at all reasonable time to inspect the premises for the purpose of determining compliance with the terms and conditions of applicable permits, codes, regulations, and laws. At a minimum, reasonable times shall include the operating hours of the establishment.
(Ord. 94-097(sub1), § 2 (part), 1994)