HomeMy WebLinkAboutAgenda - 11-23-2015 - Item C.1 - Abstract - Sexually Oriented Businesses 2
ORANGE COUNTY
BOARD OF COMMISSIONERS AND
PLANNING BOARD
QUARTERLY PUBLIC HEARING ACTION AGENDA ITEM ABSTRACT
Meeting Date: November 23, 2015
Action Agenda
Item No. C.1
SUBJECT: Unified Development Ordinance Text Amendment — Sexually Oriented
Business Land Use Regulations
DEPARTMENT: Planning and Inspections PUBLIC HEARING: (Y/N) Yes
ATTACHMENT(S): INFORMATION CONTACT:
1. Comprehensive Plan and Unified Michael Harvey Planner 111,(919) 245-2597
Development Ordinance Outline Form — Craig Benedict, Director, (919) 245-2585
Sexually Oriented Businesses
(UDO/Zoning 2015-05)
2. Excerpts of State Regulations on
Regulating Sexually Oriented
Businesses
3. Proposed UDO Text Amendment(s)
PURPOSE: To hold a public hearing on Planning Director initiated Unified Development
Ordinance (UDO) text amendments proposing land use regulations governing the development
of sexually oriented businesses.
BACKGROUND: The Board of County Commissioners (BOCC) approved the Amendment
Outline Form (Attachment 1) for this item at its May 5, 2015 regular meeting. Agenda materials
from this meeting can be viewed at-
http://www.orangecountync.gov/doc ment center/ OCCAenda inutes/150505.pdf.
As defined within NCGS 14-202.10 a sexually oriented business means, "Any businesses, or
enterprises that have as one of their principal business purposes, or as a significant portion of
their business, an emphasis on matter and conduct depicting, describing, or related to
anatomical areas and sexual activities."
The County cannot prohibit sexually oriented businesses outright but is afforded the opportunity
to regulate their location and certain operational characteristics in an effort to ensure identified
secondary impacts are mitigated.
Staff is proposing to amend the UDO to establish Iocational criteria for such businesses
including mandatory setbacks from identified sensitive uses (i.e. church, school, single-family
residence, etc.) while allowing for their development consistent with applicable State and
Federal requirements and prohibiting the consumption and/or sale of alcohol. In support of
recommended land use regulations, staff offers the following information with respect to
addressing identified secondary impacts.
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1. A legal summary produced by Mr. David Owens of the UNC Institute of Government can
be viewed by utilizing the following link: hLtp-://www.soq.unc.edu/resource
This document provides an
overview of the `do's and don'ts with respect to the regulation of sexually oriented
businesses.
2. In 2013 a study completed for Louisville Kentucky by Eric S. McCord and Richard
Tewksbury found-
... sexually oriented businesses are associated with much higher rates of
all types of offenses in the immediate vicinity of the business and continue
to have significant effects on crime levels as one moves further from the
business.
Secondary impacts can include increased levels of crime, sexual deviance, prostitution,
and negative economic consequences for surrounding properties. The study can be
viewed by utilizing the following link-
http://secondaEle ectsresearch.com/files/ cCord°/®20and°/®20Tewksbury,°/®202013.pdf.
A 2011 study, entitled The AssociAT/oN of Adult Businesses with Secondary Effects.
Legal Doctrine, Social Theory, and Empirical Evidence authored by Alan C. Weinstein
and Richard McCleary made similar findings. This study can be viewed at:
h p://secondaryeffectsresearch.com/files/Cardozo%20Law%20 Review.pdf.
3. A 1996 report completed by the American Center for Law and Justice found that-
... SOBs (sexually oriented businesses) support detrimental activities (i.e.
personal and property crimes, prostitution, drugs, etc.) within the vicinity
that are incompatible with activities occurring within residential areas. SOBs
also have a negative impact on local businesses. Evidence indicates that
when SOBs are located near each other or near businesses that serve
alcohol, the harmful impact increases.
A summary of this report can be viewed at:
http://secondarveffectsresearch.com/files/Land°/®20Use°/®20summaryy/®202005.pdf.
4. A 2005 report completed by Duncan and Associates for Kenton and Campbell Counties
in Kentucky, as well as the Northern Kentucky Area Planning Commission, found that:
A governmental body's key purpose in regulating sexually oriented
businesses is to mitigate the negative secondary effects. One of the easiest
ways is to ensure that the sexually oriented businesses are located away
from the types of land uses on which they are most likely to have adverse
secondary effects. Zoning is the classic tool for regulating the locations of
various uses and for ensuring that uses that are incompatible are kept
reasonably separate.
This report can be viewed at:
http://secondaryeffectsresearch.com/files/Zoninp°/®20for°/®20Sexually°/®20Oriente
d%20 ntertainment%20and%20 elated%20 usinesses.pdf.
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5. Staff's review of these studies caused a conclusion that the secondary effects of sexually
oriented businesses have negative impacts on the surrounding area, in the form of crime
and property devaluation, which will be addressed by the proposed regulations.
6. Planning staff is recommending sexually oriented businesses observe a 1,000 ft. setback
from each other as well as identified sensitive uses (i.e. church, residence, playground,
etc.). Staff is recommending the setback for several reasons, including:
a. Referenced studies have found the clustering of such land uses in a given area
could attract an undesirable quantity and quality of transients adversely impacting
property values, creating blight for adjacent properties, cause an increase in crime
and encourages residents and businesses to move elsewhere.
b. Courts have consistently found local communities have the legal ability and
interest in promoting stable neighborhoods through requiring a setback.
This was viewed as being a substantial government interest and the incidental
impact of an ordinance regulating such businesses on protected speech. (United
States versus O'Brien — US Supreme Court (1976) ; Young versus American
Movie Theaters Inc. — US Supreme Court (1979) ; City of Renton versus Playtime
Theaters — US Supreme Court (1986)).
The proposed setback does not restrict the activity that can occur within the business.
7. Planning staff is recommending sexually oriented businesses not be located within a
structure or on property where alcohol is allowed to be sold or consumed. Staff is
recommending the standard for several reasons including:
a. Referenced studies have found such land uses could attract an undesirable
quantity and quality of transients adversely impacting property values, creating
blight for adjacent properties, and causes an increase in crime (most notably
prostitution).
In some of these studies alcohol is identified as contributing factor.
b. Courts have found local communities have the legal ability to restrict or prohibit
the consumption/sale of alcohol (Fay versus State Board of Alcoholic Control —
NC Court of Appeals (1976).
c. State law allows governing bodies to restrict alcohol sales/consumption at sexually
oriented businesses. Please refer to Attachment 2.
The prohibition on alcohol sales/consumption does not restrict the activity that can occur
within the business.
For more background information please refer to Section B.1 of Attachment 1. Staff has also
provided information on applicable State regulations associated with sexually oriented
businesses in Attachment 2.
SOCIAL JUSTICE IMPACT: The following Orange County Social Justice Goals is applicable to
this agenda item:
GOAL: Enable Full Civic Participation
Ensure that Orange County residents are able to engage government through voting and
volunteering by eliminating disparities in participation and barriers to participation.
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GOAL: ESTABLISH SUSTAINABLE AND EQUITABLE LAND-USE AND
ENVIRONMENTAL POLICIES
The fair treatment and meaningful involvement of people of all races, cultures, incomes
and educational levels with respect to the development and enforcement of
environmental laws, regulations, policies, and decisions. Fair treatment means that no
group of people should bear a disproportionate share of the negative environmental
consequences resulting from industrial, governmental and commercial operations or
policies.
FINANCIAL IMPACT: Please refer to Section C.3 of Attachment 1.
RECOMMENDATION(S): The Planning Director recommends that the Board:
1. Receive the request,
2. Conduct the Public Hearing and accept public, BOCC, and Planning Board comments.
3. Refer the matter to the Planning Board with a request that a recommendation be
returned to the BOCC in time for its February 2, 2016 regular meeting.
4. Adjourn the public hearing until February 2, 2016 in order to receive and accept the
Planning Board's recommendation and any submitted written comments.
Attachment 1 6
COMPREHENSIVE PLAN / FUTURE LAND USE MAP
AND
UNIFIED DEVELOPMENT ORDINANCE (UDO)
AMENDMENT OUTLINE
UDO / Zoning-2015-05
Amendment(s) addressing establishment of land use regulations for sexually oriented
businesses.
A. AMENDMENT TYPE
Map Amendments
❑ Comprehensive Plan — Future Land Use Element Map:
From: - - -
To- - - -
❑ Zoning Map-
From- -- -
To: - - -
❑ Other:
Text Amendments
❑ Comprehensive Plan Text-
Section(s)-
❑ UDO Text:
❑UDO General Text Changes
❑UDO Development Standards
❑UDO Development Approval Processes
Section(s): Section(s)
1. 5.2.1 Table of Permitted Uses,
2. 5.6 Standards for Commercial Uses,
3. Article 8 Nonconformities, and
4. Article 10 Definitions
❑ Other:
B. RATIONALE
1. Purpose/Mission
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In accordance with the provisions of Section 2.8 Zoning Atlas and Unified
Development Ordinance Amendments of the UDO, the Planning Director has
initiated a text amendment to establish regulations governing the development of
sexually oriented businesses.
As defined within NCGS 14-202.10 a sexually oriented business means, "Any
businesses, or enterprises that have as one of their principal business purposes, or
as a significant portion of their business, an emphasis on matter and conduct
depicting, describing, or related to anatomical areas and sexual activities."
Sexually oriented businesses, because of their very nature, are recognized as having
potentially objectionable operational characteristics. Regulation of these uses are
necessary to ensure adverse secondary effects do not contribute to the blighting of
surrounding neighborhoods and to regulate acts, omissions or conditions that could
be construed as detrimental to the public health, safety or welfare. This includes
ensuring development of such businesses does not create a disincentive for
additional economic development in a given area.
Such regulations, however, are required to be content neutral and shall not have the
effect of imposing a limitation or restriction on the content of any communicative
materials or deny access by adults to sexually oriented materials protected by the US
Constitution's First Amendment. Regulations also cannot be so restrictive as to deny
access by the distributors and exhibitors of sexually oriented entertainment to their
intended market.
Currently, Orange County does not permit the development of sexually oriented
businesses within any general use zoning district. Existing definitions, including adult
uses as contained in Article 10 of the UDO, are out of date and inconsistent with
State regulations and recent court decisions.
2. Analysis
As required under Section 2.8.5 of the UDO, the Planning Director is required to:
`cause an analysis to be made of the application and, based upon that analysis,
prepare a recommendation for consideration by the Planning Board and the Board of
County Commissioners'.
The amendment(s) are necessary to ensure the County is consistent with provisions
of State and Federal law.
The County cannot prohibit sexually oriented businesses outright but is afforded the
opportunity to regulate their location and certain operational characteristics in an
effort to ensure identified secondary impacts are mitigated as much as possible.
The proposed amendments establish Iocational criteria for such businesses including
mandatory setbacks from identified sensitive uses (i.e. church, school, single-family
residence, etc.) while allowing for their development consistent with applicable State
and Federal requirements.
3. Comprehensive Plan Linkage (i.e. Principles, Goals and Objectives)
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Land Use Goal 2: Land uses that are appropriate to on-site environmental
conditions and features and that protect natural resources, cultural resources, and
community character.
Land Use Goal 4: Land development regulations, guidelines, techniques and/or
incentives that promote the integrated achievement of all Comprehensive Plan goals.
4. New Statutes and Rules
N/A
C. PROCESS
1. TIMEFRAME/MILESTONES/DEADLINES
a. BOCC Authorization to Proceed
May 5, 2015
b. Quarterly Public Hearing
November 23, 2015
c. BOCC Updates/Checkpoints
May 5, 2015 —Approval of UDO Amendment Outline Form
September 2, 2015 — Planning Board Ordinance Review Committee (ORC)
November 23, 2015 — Quarterly Public Hearing
February 2, 2016 — Receive Planning Board Recommendation
d. Other
N/A
2. PUBLIC INVOLVEMENT PROGRAM
Mission/Scope: Public Hearing process consistent with NC State Statutes and
Orange County ordinance requirements
a. Planning Board Review:
September 2, 2015 — Ordinance Review Committee
The ORC met and reviewed this item at its September 2, 2015 meeting where the
following comments were made:
• A Board member asked if there was sufficient legal precedent for the
establishment of separation requirements.
STAFF COMMENT. State law grants local government the authority
to regulate sexually oriented businesses including establishing
separation requirements from sensitive uses (i.e. church, school,
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playground, etc.)
• A Board member asked how many sexually oriented businesses there are
in the County and inquired specifically on the status of the adult
entertainment club off of NC Highway 86 North.
STAFF COMMENT. There were 2 sexually oriented businesses
operating in the County but both are now closed including the facility
off of NC Highway 86. If this Ordinance is passed they will be unable
to reopen.
• A Board member asked if there were any properties zoned I-2 or I-3 that
could accommodate a sexually oriented businesses.
STAFF COMMENT. There are currently no properties zoned I-2 or I-3.
There is, however, available land area that could be rezoned to
support such development.
• A Board member asked if these types of land uses create adverse
economic impacts by scaring away other types of business operations.
STAFF COMMENT. Staff cannot guarantee adjacent property or
business owners will be unfazed if a sexually oriented business locates
adjacent to them. To some the business is no different than a night
club or a video store. To others such businesses offend their sense of
decency.
Staff is recommending the medium (I-2) and heavy (I-3) industrial
districts as there are typically a lack of sensitive uses in these areas
and, for the most part, commercial land uses in these districts will be
closed during the time a sexually oriented business is open.
• A Board member asked if sexually oriented businesses create blight.
STAFF COMMENT. Any land use can create blight if not properly
maintained. From staff's standpoint a sexually oriented business
creates more significant impacts if not properly regulated.
The ORC materials are available at:
hp://www.oranecountync. ov/O C Sep 2015 Agenda I�ackae.pdf. Meeting
notes can be viewed by utilizing the following link-
L22-://www.oranecountync. ov/9 2 15 O C Notes.pdf.
January 6, 2016 — Recommendation
b. Advisory Boards:
N/A
c. Local Government Review:
Staff transmitted the proposed
amendment to the Towns of Chapel
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Hill, Carrboro, and Hillsborough for
courtesy review on October 21, 2015.
As of this date staff has not received
any comment.
Staff and the Attorney have also met
with the Sheriff's Office to discuss the
proposal. The Sheriff did not express
concerns over the establishment of
land use regulations.
d. Notice Requirements
Legal advertisement was published on November 11 and 18, 2015 in accordance
with the provisions of the UDO.
e. Outreach:
® General Public: Consistent with NC State General Statutes and Orange
County Ordinance requirements.
❑ Small Area Plan Workgroup:
❑ Other:
3. FISCAL IMPACT
Consideration and approval will not create the need for additional funding for the
provision of County services. Costs for the required legal advertisement will be paid
from FY2015-16 Departmental funds budgeted for this purpose. Existing Planning
staff included in the Departmental staffing budget will accomplish the work required
to process this amendment.
D. AMENDMENT IMPLICATIONS
The amendment will establish comprehensive regulations governing the development
and operation of sexually oriented businesses consistent with applicable State and
Federal law.
E. SPECIFIC AMENDMENT LANGUAGE
Please refer to Attachment 3.
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Primary Staff Contact:
Michael D. Harvey
Planning
(919) 245-2597
mharvey @orangecountync.gov
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Attachment 2 12
Article 26A.
Adult Establishments.
§ 14-202.10. Definitions.
As used in this Article:
(1) "Adult bookstore" means a bookstore:
a. Which receives a majority of its gross income during any calendar
month from the sale or rental of publications (including books,
magazines, other periodicals, videotapes, compact discs, other
photographic, electronic, magnetic, digital, or other imaging
medium) which are distinguished or characterized by their emphasis
on matter depicting, describing, or relating to specified sexual
activities or specified anatomical areas, as defined in this section; or
b. Having as a preponderance (either in terms of the weight and
importance of the material or in terms of greater volume of materials)
of its publications (including books, magazines, other periodicals,
videotapes, compact discs, other photographic, electronic, magnetic,
digital, or other imaging medium) which are distinguished or
characterized by their emphasis on matter depicting, describing, or
relating to specified sexual activities or specified anatomical areas, as
defined in this section.
(2) "Adult establishment" means an adult bookstore, adult motion picture
theatre, adult mini motion picture theatre, adult live entertainment business,
or massage business as defined in this section.
(3) "Adult live entertainment" means any performance of or involving the actual
presence of real people which exhibits specified sexual activities or specified
anatomical areas, as defined in this section.
(4) "Adult live entertainment business" means any establishment or business
wherein adult live entertainment is shown for observation by patrons.
(5) "Adult motion picture theatre" means an enclosed building or premises used
for presenting motion pictures, a preponderance of which are distinguished
or characterized by an emphasis on matter depicting, describing, or relating
to specified sexual activities or specified anatomical areas, as defined in this
section, for observation by patrons therein. "Adult motion picture theatre"
does not include any adult mini motion picture theatre as defined in this
section.
(6) "Adult mini motion picture theatre" means an enclosed building with
viewing booths designed to hold patrons which is used for presenting motion
pictures, a preponderance of which are distinguished or characterized by an
emphasis on matter depicting, describing or relating to specified sexual
activities or specified anatomical areas as defined in this section, for
observation by patrons therein.
(7) "Massage" means the manipulation of body muscle or tissue by rubbing,
stroking, kneading, or tapping, by hand or mechanical device.
(8) "Massage business" means any establishment or business wherein massage
is practiced, including establishments commonly known as health clubs,
physical culture studios, massage studios, or massage parlors.
(9) "Sexually oriented devices" means without limitation any artificial or
simulated specified anatomical area or other device or paraphernalia that is
designed principally for specified sexual activities but shall not mean any
contraceptive device.
(10) "Specified anatomical areas" means:
NC General Statutes - Chapter 14 Article 26A 1
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a. Less than completely and opaquely covered: (i) human genitals,
pubic region, (ii) buttock, or (iii) female breast below a point
immediately above the top of the areola; or
b. Human male genitals in a discernibly turgid state, even if completely
and opaquely covered.
(11) "Specified sexual activities" means:
a. Human genitals in a state of sexual stimulation or arousal;
b. Acts of human masturbation, sexual intercourse or sodomy; or
C. Fondling or other erotic touchings of human genitals, pubic regions,
buttocks or female breasts. (1977, c. 987, s. l; 1985, c. 731, s. l;
1998-46, s. 4.)
§ 14-202.11. Restrictions as to adult establishments.
(a) No person shall permit any building, premises, structure, or other facility that
contains any adult establishment to contain any other kind of adult establishment. No person
shall permit any building, premises, structure, or other facility in which sexually oriented
devices are sold, distributed, exhibited, or contained to contain any adult establishment.
(b) No person shall permit any viewing booth in an adult mini motion picture theatre to
be occupied by more than one person at any time.
(c) Nothing in this section shall be deemed to preempt local government regulation of
the location or operation of adult establishments or other sexually oriented businesses to the
extent consistent with the constitutional protection afforded free speech. (1977, c. 987, s. l;
1985, c. 731, s. 2; 1998-46, s. 5.)
§ 14-202.12. Violations; penalties.
Any person who violates G.S. 14-202.11 shall be guilty of a Class 3 misdemeanor. Any
person who has been previously convicted of a violation of G.S. 14-202.11, upon conviction for
a second or subsequent violation of G.S. 14-202.11, shall be guilty of a Class 2 misdemeanor.
As used herein, "person" shall include:
(1) The agent in charge of the building,premises, structure or facility; or
(2) The owner of the building, premises, structure or facility when such owner
knew or reasonably should have known the nature of the business located
therein, and such owner refused to cooperate with the public officials in
reasonable measures designed to terminate the proscribed use; provided,
however, that if there is an agent in charge, and if the owner did not have
actual knowledge, the owner shall not be prosecuted; or
(3) The owner of the business; or
(4) The manager of the business. (1977, c. 987, s. l; 1985, c. 731, s. 3; 1993, c.
539, s. 132; 1994, Ex. Sess., c. 24, s. 14(c).)
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§ 160A-181.1. Regulation of sexually oriented businesses.
(a) The General Assembly finds and determines that sexually oriented businesses can
and do cause adverse secondary impacts on neighboring properties. Numerous studies that are
relevant to North Carolina have found increases in crime rates and decreases in neighboring
property values as a result of the location of sexually oriented businesses in inappropriate
locations or from the operation of such businesses in an inappropriate manner. Reasonable local
government regulation of sexually oriented businesses in order to prevent or ameliorate adverse
secondary impacts is consistent with the federal constitutional protection afforded to
nonobscene but sexually explicit speech.
(b) In addition to State laws on obscenity, indecent exposure, and adult establishments,
local government regulation of the location and operation of sexually oriented businesses is
necessary to prevent undue adverse secondary impacts that would otherwise result from these
businesses.
(c) A city or county may regulate sexually oriented businesses through zoning
regulations, licensing requirements, or other appropriate local ordinances. The city or county
may require a fee for the initial license and any annual renewal. Such local regulations may
include, but are not limited to:
(1) Restrictions on location of sexually oriented businesses, such as limitation to
specified zoning districts and minimum separation from sensitive land uses
and other sexually oriented businesses;
(2) Regulations on operation of sexually oriented businesses, such as limits on
hours of operation, open booth requirements, limitations on exterior
advertising and noise, age of patrons and employees, required separation of
patrons and performers, clothing restrictions for masseuses, and clothing
restrictions for servers of alcoholic beverages;
(3) Clothing restrictions for entertainers; and
(4) Registration and disclosure requirements for owners and employees with a
criminal record other than minor traffic offenses, and restrictions on
ownership by or employment of a person with a criminal record that includes
offenses reasonably related to the legal operation of sexually oriented
businesses.
(d) In order to preserve the status quo while appropriate studies are conducted and the
scope of potential regulations is deliberated, cities and counties may enact moratoria of
reasonable duration on either the opening of any new businesses authorized to be regulated
under this section or the expansion of any such existing business. Businesses existing at the
time of the effective date of regulations adopted under this section may be required to come
into compliance with newly adopted regulations within an appropriate and reasonable period of
time.
(e) Cities and counties may enter into cooperative agreements regarding coordinated
regulation of sexually oriented businesses, including provision of adequate alternative sites for
the location of constitutionally protected speech within an interrelated geographic area.
(f) For the purpose of this section, "sexually oriented businesses" means any businesses
or enterprises that have as one of their principal business purposes or as a significant portion of
their business an emphasis on matter and conduct depicting, describing, or related to
anatomical areas and sexual activities specified in G.S. 14-202.10. Local governments may
adopt detailed definitions of these and similar businesses in order to precisely define the scope
of any local regulations. (1998-46, s. 1.)
G.S. 160a-181.1 Page 1
Attachment 3 Article 5: Usk
Section 5.2: Table of Permitted Uses
TABLE OF . ZONING
PERMITTED USE A=CLASS A SPECIAL USE B=CLASS B SPECIAL USE A=SUBJECT TO SPECIAL STANDARDS
ZONING GENERAL USE
USE TYPE
RB AR R1 R2 R3 R4 R5 R8 R13 LC1 NC2 CC3 GC4 EC5 01 AS El 11 12 13 PID
—Use may not be permitted as a Conditional Use District; See Section 5.1.4(E)
^Allowed as more than one principal use if located on a bona fide farm(see Section 6.2.5)
e ice Electronic&Appliance
Restaurants: Carry
Restaurants: Drive In
Restaurants: General
Retail, Class 1
Retail, Class 2
Retail, Class 3
Rural Guest Establishment: Bed ast^
Rural Guest Est ent: Bed &Breakfast Inn ^ B B
uest Establishment: Country Inn A A A
Sexually Oriented Businesses'
e cf Goods, Outdoor—
Storage or Ware side Building
Studio(Art)
Taxidermy A
Tourist Home
Wholesale Trade
Winery with Minor Events A B B B B B
EXTRACTIVE USES
of Earth Products— A A A A
1 Staff is recommending the uses be allowed in our medium and heavy industrial districts as a permitted use of property. This is due to the lack of identified
sensitive uses(i.e. residential,schools,church,etc.)typically found in those areas of the County where large scale industrial/manufacturing operations are
intended for development.
Orange County, North Carolina—Unified Development Ordinance Page 5-7
Article 5: Usk
Section 5.6: Standards for Commercial Uses
from adjacent residentially zoned property.
(4) The site shall be located on a major road, as classified in the Oran County
Comprehensive Plan, unless permitted as an ASE-CZ.
(5) Parking shall not be located in the front yard space.
(6) A ication materials shall include a comprehensiv roundwater study, for
faciliti expected to use more groundwater o annual basis than an average
single fa i residence (which uses 240 g ns of water per day) built at the
highest dense the existing zoning dist i would allow. For example, if the
existing zoning ict allows a res' ntial density of 1 unit for 2 acres and the
proposed use is on a 'x acre cel (which could yield 3 residences), the
proposed use(s) may us e times the water used by an average single family
residence (or 720 gallo pe ay, on an annualized basis) before a
comprehensive gro dwater stu is required. The water usage rates of any
existing use su ' ct to zoning regul i ns located on the same lot shall be taken
into accou hen determining if a com hensive groundwater study is required.
Said st shall detail:
The amount of water anticipated to be us on a daily, weekly, monthly,
and annual basis by regulated uses located the parcel (e.g., water
usage by bona fide farm uses is not required to included);
(b) An analysis of the amount of groundwater withdrawal sidered to be
safe and sustainable in the immediate vicinity; and
(c) An analysis of whether other wells in the vicinity of the propose se are
expected to be affected by withdrawals made by the proposed use.
5.6.15 Sexually Oriented Businesses
(A) Submittal Requirements
(1) In addition to the site plan submittal criteria detailed within Section 2.5 of this
Ordinance the applicant shall submit proof a license has been issued allowinq for
the operation of a sexually oriented business in accordance with Section 8-33 of
the Orange County Code of Ordinances.
(B) Standards of Evaluation
(1) No sexually oriented business(es) shall be located in a building or on a premises
where alcohol or alcoholic beverages are sold or in a buildinq or on a premises
that allows alcohol or alcoholic beverages to be consumed.
(2) Sexually oriented business(es) shall not be located in any building, or portion
thereof, that is:
(a) Within 1,000 feet of an existinq sexually oriented business.
(b) Within 1,000 feet of a:
M Residential land use includinq any open space established as
part of the residential subdivision approval process,
(ii) Church and/or place of worship,
(iii) School (public, private, or specialty),
(iv) Public or private library,
(v) State licensed child care facility, or
(vi) Public park or recreational facility.
(c) Measurement shall be made in a straight line, without regard to the
intervening structures or objects, from the nearest portion of the building
Orange County, North Carolina—Unified Development Ordinance Page 5-62
Article 5: Us"
Section 5.7: Standards for Recreational Uses
or structure used as the part of the premises where a sexually oriented
business is conducted to the nearest portion of a building, structure, or
open space area of a use listed above.
OSECTION 5.7: STANDARDS O-
5.7. Recreational Facilities
A) General Standards of Evaluation
(1) The standards included herein shall be applied to the following for- ofit
recreational facilities:
(a) Tennis clubs,
(b) Swim clubs,
(c) Racquet ball,
Squash clubs,
(e) Pitch and putt courses,
(f) Amusement areas,
(g) Ming alleys,
(h) Ska i g rinks,
(i) Shooti ranges,
Q) Billiard an pool halls,
(k) Indoor athlete facilities a d
(1) Other similar us .
(2) The minimum lot area shat a two acres.
(3) No building shall be clos r tha the minimum requirements of the district or 20
feet to the public right way or ivate property line, whichever is greater.
(B) Standards for Class B Sp ial Use Perm
(1) Submittal Reclu' ements
In addition to e information required by ection 2.7, the following information
shall be sup ied as part of the application approval of this use:
(a) description of the exact type facility anned, the amount of area,
ncluding and number of members or pa 'cipants expected, a site plan
showing siting and size of existing and pro osed building.
(b Access, parking, service and recreation areas or all planned facilities or
existing facilities.
(c) Plans, and elevation for all proposed and existing uctures and
descriptions of the color and nature of all exterior ma rials.
(d) A landscape plan showing, at the same scale as the sit Ian, existing
and proposed trees, shrubs, ground cover and any other dscape
materials.
(e) A signed statement from the owners or operators that there sh I be no
activity allowed that will have adverse effects on adjacent prope The
statement shall also include a complete list of all recreational activi s
that will take place on the site.
(2) Standards of Evaluation
Orange County, North Carolina—Unified Development Ordinance Page 5-63
18
ARTICLE 8: NONCONFORMITIES
SECTION
8.1.1 Generally
Non-conforming uses shall not be enlarged, expanded, intensified, or altered, except in
conformance with this Ordinance.
It is further the intent of this Ordinance that non-conformity shall not be used as grounds for
adding other prohibited uses or structures, nor the enlarging by means of extension or expansion,
except as specifically provided by this Ordinance.
In the case of requirements related to external factors, such as distance requirements from other
specified uses or landscaping requirements dependent upon adjacent property use, the subject
parcel shall be considered conforming so long as its continuous use was established first.
SECTION CLASSIFICATION
Non-conformities are classified as:
(A Lots (see Section 8.7);
(B) Uses of land without structures or minor structures (see Section 8.8);
(C) Us of major structures and premises (see Section 8.9);
(D) Struct s (see Section 8.10); and/or
(E) Characteri 'cs of uses (see Section 8.11)
which were lawful but uld be prohibited, regulated, or restric d by the enactment of this
Ordinance or a subseque amendment thereto.
SECTION • OF • • • PROJECTS
8.3.1 Valid Permit Issued
All non-conforming projects on which co truc 'on was begun at least 180 days before the
effective date of this Ordinance, or any mo " ication thereto, as well as all non-conforming
projects that are at least 25% completed i ter s of the total expected cost of the project on the
effective date of this Ordinance, or an odificat thereto, may be completed in accordance
with the terms of their permits, so I g as these per its were validly issued and remain
unrevoked and unexpired. If a d elopment is design to be completed in stages, this
subsection shall only apply to e particular phase under nstruction.
(A) Except as provide this Section, all work on any non- nforming project shall cease on
the effective d of this Ordinance, or any modification ereto, and all permits
previously is ed for work on non-conforming projects sha be revoked as of that date.
Thereafte , work on non-conforming projects may begin or m be continued only
pursua to a zoning or special use permit issued in accordance ith this Ordinance by
the P nning Director or board authorized to issue permits for the t e of development
pr osed. The county shall issue such a permit if it finds that the app i ant has in good
aith made substantial expenditures or incurred substantial binding oblig ions in some
substantial way in reasonable reliance on conditions as they existed before he effective
date of this Ordinance, or any modification thereto, and thereby would be unr sonably
prejudiced if not allowed to complete the project as proposed. In considering w ther
these findings may be made, the Planning Director or appropriate board shall be g i ed
by the following:
z Language added to address situations where legal land uses are made nonconforming by external forces. By
adding the language the land use will still be considered a legal,conforming, use of property.
Orange County, North Carolina—Unified Development Ordinance Page 8-1
19
ARTICLE 10: DEFINITIONS
SECTION 10.1: DEFINITIONS
he purpose of this Ordinance, certain terms and words are herein defined and interpreted lows:
AASHTO
American Association of e Highway and Transportation Officials.
Accessory Structure
A structure that is located on the same lot as rin structure and houses an accessory use.
Accessory Use
An activity that may or may not b ted in the Permitted Use which is conducted in conjunction
with a permitted principal , ut constitutes only an incidental or in tantial part of the total activity
that takes place on t t and is customary and ancillary to the establishe .ncipal use of property.
Accessory use all comply with all setback requirements for the district in whic e use is located. For
example in-ground swimming pool is required to meet all applicable setbacks inclu any required
fen i around the physical pool, the concrete walkway around the pool, and any pump or u s
ssociated with the operation of the facility.
/adult Uses
beeksteres adult theaters (dFiye i iGt ire and MORO iGt ire) adult Gaharet, eti.
Adult Arcade
Any place to which the public is permitted or invited wherein coin-operated or sluq-operated or
electronically, electrically, or mechanically controlled still or motion picture machines, projectors, or other
image-producinq devices are maintained to show images to five or fewer persons per machine at any one
time, and where the images so displaved are distinquished or characterized by the depictinq or describing
of Specified Sexual Activities or Specified Anatomical Areas.
Adult Bookstore
A bookstore:
(a) Which receives a majority of its gross income durinq any calendar month from the sale or
rental of publications (includinq books, magazines, other periodicals, videotapes, compact
discs, other photographic, electronic, magnetic, digital, or other imaging medium) which are
distinquished or characterized by their emphasis on matter depictinq, describing, or relating
to Specified Sexual Activities or Specified Anatomical Areas, as defined in this article; or
(b) Havinq as a preponderance (either in terms of the weight and importance of the material or in
terms of greater volume of materials) of its publications (includinq books, magazines, other
periodicals, videotapes, compact discs, other photographic, electronic, magnetic, digital, or
other imaginq medium) which are distinquished or characterized by their emphasis on matter
depictinq, describing, or relatinq to Specified Sexual Activities or Specified Anatomical Areas.
Adult Cabaret
A nightclub, bar, restaurant, theater, concert hall, auditorium or similar commercial establishment that for
at least ten percent of its business hours in any day features:
(a) Persons who appear in a State of Nudity; or
(b) Live performances that are characterized by the exposure of Specified Anatomical Areas or
by Specified Sexual Activities; or
Article 10: DefinitiT,@
Section 10.1: Definitions
(c) Films, motion pictures, video cassettes, slides, or other photographic reproductions that are
characterized by the depiction or description of Specified Sexual Activities or Specified
Anatomical Areas; or
(d) Persons who engage in lewd, lascivious or erotic dancing or performances that are intended
for the sexual interests or titillation of an audience or customers.
Adult Escort
A person who, for consideration, agrees or offers to act as a companion, guide, or date for another
person for the purpose of participating in, engaging in, providing, or facilitating Specified Sexual Activities.
Adult Escort Agency
A person or business that furnishes, offers to furnish, or advertises to furnish adult escorts as one of its
business purposes for a fee, tip, or other consideration.
Adult Merchandise
Any product dealing in or with explicitly sexual material as characterized by matter depicting, describing,
or relating to Specified Sexual activities or Specified Anatomical Areas.
Adult Motel
A hotel, motel or similar commercial establishment that offers accommodation to the public for any form of
consideration and:
(a) Provides patrons with closed-circuit television transmissions, films, motion pictures, video
cassettes, slides, or other photographic reproductions that are characterized by the depiction
or description of Specified Sexual Activities or Specified Anatomical Areas; and has a sign
visible from the public rights-of-way that advertises the availability of this adult type of
photographic reproductions; or
(b) Offers a sleeping room for rent for a period of time that is less than six hours; or
(c) Allows a tenant or occupant of a sleeping room to subrent the room for a period of time that is
less than twelve hours.
Adult Patron
Any person who is physically present on the premises of a sexually oriented business and who is not an
owner, employee, agent, subcontractor, or independent contractor of said business, or any entertainer or
performer at said business.
Adult Video Store
A commercial establishment that, as one of its principal business purposes, offers for sale or rental for
any form of consideration any one or more of the following: books, magazines, periodicals or other printed
matter, or photographs, films, motion picture, video tapes or cassettes, video reproductions, CD-ROMs,
slides, or other visual representations which depict or describe Specified Sexual Activities or Specified
Anatomical Areas; or any combination thereof.
cultural Processing Facility, Community,
A facile it� d for the processing of produce and/or other commodities produced by no �than 5
cooperative farm—
p s for the consumption of others (e.g. small canning ope ; Activities shall
include, but may not be lima canning, dehydrations, washing, cutt asic preparation of raw
produce but does not include proces i f live animals (see rocessing Facility). May include
accessory retail sales of products processed
Hyncultural &rucessincy ra%
A facility utilized for the pro ng and packaging of produce and/or other odities for transport to
off-site wholesale ail establishments. Facilities may be utilized by farm-based p ers,
restaurate , aterers, food entrepreneurs, and the like. Activities shall include, but may no ited to,
c . g, dehydrations, washing, cutting or basic preparation of raw produce prior to shipment but doe
Orange County, North Carolina–Unified Development Ordinance Page 10-2
Article 10: DefinitioTf
Section 10.1: Definitions
titutions of higher learning (universities, colleges and technical institutes). On-site faculty dev9ovment
work s and fellowship training programs may also be provided as part of the organizatio ' urpose.
Non-Reside ' I Development
Development of any use which is not residential in nature, including use uch as churches)which
are allowed in residential .ng districts.
Non-Residential Floor Area - lusions and Ex sions
The sum of areas for non-residential use o II floors of building measured from the outside faces of
the exterior walls, including halls, lobbies, arca irways, elevator shafts, enclosed porches and
balconies, and below-grade floor areas used f on- idential access and storages. Not countable as
floor area are:
a) Open terraces, patios, atriu or balconies.
b) Any residential space.
Non-Residential nd Area
All land for non- idential development and related uses, including open space, wit i the district in the
case of loc ' ns which are controlled by these regulations. Non-residential land area sh of be
constr to include lands not beneficial to non- residential use due to location or character, o as
predominantly for residential purposes.
Nudity or a State of Nudity
The appearance of a human bare buttock, anus, male genitals, female genitals, or female breast without
a fully opaque complete covering of the breast below a point immediately above the top of the areola, or
human male genitals in a discernibly turgid state even if completely and opaquely covered.
ursing Home
A ility, licensed by the appropriate state agency for the care of aged or infirmed individuals, that eet
the re .rements set forth in this Ordinance.
Nutrient S sitive Waters
Those waters whi are so designated in the classification schedule in order to limit e discharge of
nutrients (usually nitr en and phosphorous). They are designated by "NSW'foll ing the water
classification.
Obstruction
Includes, but is not limited to, any d wall, wharf, embankment, ee, dike, pile, abutment, protection,
excavation, channelization, bridge, con it, culvert, building, wi , fence, rock, gravel, refuse, fill,
structure, vegetation or other material in, a g, across, or p jecting into any watercourse, which may
alter, impede, retard, or change the direction /or velo i y of the flow of water, or due to its location, its
propensity to snare or collect debris carried by th o of water, or its likelihood of being carried
downstream.
Office Use
A use of property for professional and rical activities associat with the operation of a business.
Offices & Personal Serv' s, Class 1
Offices and personal servic that attract few customers or clients on premi s other than employees,
generate low traffic volu s (< 100 trips/day), and have no adverse impacts b nd the space occupied
by the building.
Offices & P rsonal Services, Class 2
Offices an personal services that generate medium traffic volumes (100-400 trips/day), and ve no
advers impacts beyond the lot boundaries.
ffices & Personal Services, Class 3
Orange County, North Carolina—Unified Development Ordinance Page 10-30
Article 10: DefinitiTT
Section 10.1: Definitions
Any Caved ground absorption sewage treatment and disposal system other than an ap d privy or
an approve is tank system.
Septic Tank System
A subsurface sanitary sewage sys consisting of a septic to nd a subsurface disposal field.
ietback
Yard space other than a court unoccupi d unobstru by any structure or portion of a structure
from thirty inches above the gene round level of the grade ward, except as specifically provided
in these regulations; provi , owever, that fences and walls may be itted in any setback subject to
height limitations es fished generally or for the district and, further provide t poles, posts and other
customary a sories, ornaments, furniture and landscaping shall be permitted in setback if they do
not co ' ute substantial impediments to free flow of light and air across the setback or vi rovisions
ese or other regulations regarding visibility.
Sexually Oriented Devices
Any artificial or simulated Specified Anatomical Area or other device or paraphernalia that is designed
Principally for Specified Sexual Activities but shall not mean any contraceptive device.
Sexually Oriented Business
A business which offers its customers or adult patrons any device, activity or demonstration depicting
Specified Sexual Activities , or which is intended to appeal to sexual interests, titillation or arousal of the
customer or adult patron. A sexually oriented business shall include an adult establishment as in NCGS
14-202.10(2) and, in addition, without limitation shall include: Adult Arcade, Adult Bookstore, Adult Video
Store, Adult Cabaret, Adult Motel, and Adult Escort Agency.
An etter, figure, character, mark, plane, point, marquee, design, poster, pictorial, picture, stroke tripe,
line, tra mark, reading matter, or illuminated surface which is constructed, placed, attached, inted,
erected, fa ened or manufactured in any manner so that the same shall be used for the a ction of the
public to any ce, subject, person, firm, corporation, public performance, article, mac i e, or
merchandise, whi are displayed in any manner, including out-of-doors.
Sign, Abandonea
A sign for which no legal ow can be found or any sign face or sign st ture that advertises a business
not conducted on the premises over 90 days. In making the deter ination that a sign advertises a
business no longer being conducte , he Planning Director shall nsider the following: the existence or
absence of a current occupational Iicen utility service dep or account; use of the premises; and
relocation of the business.
Abandoned Sign shall also include the followin
Through age and/or obsolescence a sign no longer conforms to structural or maintenance
specifications of Section 6.12, or
Any pole, pylon, or structure expres installed the purpose of affixing a sign that bears no
sign or copy.
sign, Advertiser
Any person who is a lessee owner of a sign, an agent of same, or an ne that has beneficial use of a
sign.
*ign, Adverti ' g Display Area
The advertisi display surface area encompassed within any polygon that would enc e all parts of the
sign. The ructural supports for a sign, whether, they be columns, pylons, or a building, o part thereof,
shall n e included in the advertising area. Also known as Sign Area.
n example of how advertising display area or sign area is calculated is as follows:
Orange County, North Carolina—Unified Development Ordinance Page 10-39
Article 10: Definitiln
Section 10.1: Definitions
cial Event
A co ercial activity attracting at least 20 people at any given time, that typically does not invo
permane structures, and does not occur more frequently than seven days in a 30-day peri or more
than 50 days er year. Examples of special events are craft shows, small festivals, con s, medical or
veterinary clinic , nd sites operated by businesses engaged in hosting outdoor soci events such as
picnics or reception onsored by a restaurant or caterer.
Activities which are not ' cluded in this definition include:
a) Events of a person or non-profit, nature such as family reunions d church activities;
b) Farm-related or rural e nts such as horse shows, 4-H events nd auctions; and
c) Fund-raising events for n - rofit organizations.
Special Flood Hazard Area (SF
The land in the floodplain subject to a 1%or ater c ce of being flooded in any given year as
determined in Section 4.3 of this Ordinance, as d by the base flood elevation. The mapped special
flood hazard area approximates the base flood va , n.
Special Flood Hazard Area Ov ay District
An overlay district establishing stan r for development for pr erties within identified floodplains.
Special-Purpose Unit Government
Any special district or p is authority.
Special Use
A use which ould not be appropriate generally throughout the zoning district or witho pecial study, but
which, if ntrolled as to number, area, location or relation to neighborhood, would be app riate. Such
uses ich are listed as Special Uses in the Permitted Use Table, Section 5.2, may be install and
o rated only after approval by the Board of Commissioners or by the Board of Adjustment, as
appropriate, subject to the general and specific standards.
Specified Anatomical Areas
(a) Less than completely and opaquely covered human: (i)genitals, pubic region, (ii) buttocks, or (iii)
female breast below a point immediately above the top of the areola; or
(b) Human male genitals in a discernibly turgid state, even if completely and opaquely covered.
Specified Sexual Activities
(a) Human genitals in a state of sexual stimulation or arousal;
(b) Acts of human masturbation, sexual intercourse or sodomy; or
(c) Fondling or other erotic touchings of human genitals, pubic regions, buttocks or female breasts.
art of Construction
IncIu substantial improvement, and means the date the building permit was issued, provi e
actual sta construction, repair, reconstruction, rehabilitation, addition placement, or er
improvement wa 'thin 180 days of the permit date. The actual start means eith e first placement of
permanent constructio a structure (including a manufactured home)on e, such as the pouring of
slabs or footings, installation" es, construction of columns, or any beyond the stage of
excavation; or the placement of a ufactured home on a foun on. Permanent construction does not
include land preparation, such as clean , rading, and filli , nor does it include the installation of
streets and/or walkways; nor does it include e vati or a basement, footings, piers, or foundations or
the erection of temporary forms; nor does it incl installation on the property of accessory buildings,
such as garages or sheds not occupied as elling units of part of the main structure. For a
substantial improvement, the actual of construction means first alteration of any wall, ceiling,
floor, or other structural part of uilding, whether or not that altera affects the external dimensions
of the building.
State Age
Every artment, agency, institution, public authority, board, commission, bureau, division, c cil,
er of Council of State, or officer of the State government of the State of North Carolina.
Orange County, North Carolina—Unified Development Ordinance Page 10-51
Article 10: DefinitiTA
Section 10.1: Definitions
Telecommunication Facilities, Whip Antenna
cylindrical antenna that transmits and/or receives signals in 360 degrees.
Te communication Facilities, Wireless facility
The s of equipment and network components, exclusive of the underlying /nd o tructure or
tower, i luding antennas, transmitters, receivers base stations, power supp d associated
equipmen ecessary to provide wireless data and wireless telecommunicatito a discrete
geographic ea. This may also be referred to as a Personal Wireless Facili
Telecommun ation Facilities, Wireless facility Stealth
A wireless support ucture designed using stealth technology such that its ose is, or visually appears to be, something other th an the support of telecommunicatint, the apparent
purpose of the wireless pport structure is customarily considered as
ac sory to a use that is allowed
in the zoning district, and e structure and its primary use comply with t i Ordinance.
Telecommunication Fa c' ities, Wireless support stru ure
A new or existing structure, such s a monopole, lattice, or guyed wer that is designed to support or
capable of supporting wireless facil ies. A utility pole is not a wi less support structure.
Telecommunication Facilities, ireless Telec munications Facility (WTF),
Includes both Telecommunicatio s Site and ersonal Wireless Facility
A structure, facility or location designed, or in nded to e used as, or used to support antennas or other
transmitting or receiving devises. This includes ith t limit wireless support structures of all types, kinds
and structures, including, but not limited to buildin , church steeples, silos, water towers, signs or other
structures that can be used as a support structur antennas or the functional equivalent of such. If
further includes all related facilities and equip nt su as cabling, equipment shelters and other
structures associated with the facility. It is a ructure a facility intended for transmitting and/or
receiving radio, television, cellular, SMR, p ging, 911, per nal communications services (PCS),
commercial satellite services, microwav ervices, and any mmercial wireless telecommunication
service not licensed by the FCC.
Temporary Residential Mo ile Home
A mobile home, intended for re ' ential use for a limited period of tim for purposes of providing for
custodial care under a Class Special Use Permit or providing tempor residential space during the
installation of a replacemen mobile home or construction of a stick-built o odular residential unit on the
same lot, and for 30 days fter the issuance of Certificate of Occupancy for e permanent unit. The
temporary mobile hom s not attached to a permanent or semi-permanent fou dation.
Temporary Us uilding
A building, not in nded for residential use, consisting of one or more modules constr ted off the ultimate
site of use. Th building is also not attached to a permanent or semi-permanent founds 'on.
Ten-Ye Transition Land
Land lo ted in areas that are in the process of changing from rural to urban densities and/or i ensities,
that a suitable for higher densities and/or intensities and could be provided with public utilities d
ser ' es within the first 10-year phase of the Comprehensive Plan update or where such utilities an
s vices are already present or planned. Non-residential uses implemented in accordance with smal
rea plans and/or overlay districts may be appropriate.
Touch or Touching
In the context of a sexually oriented business any form of intentional physical, bodily contact regardless of
whether exposed or clothed parts of any body are involved.
ou
A building or group of attached or detac e �' do mbination, three to nine lodging
units for occu anc e y periods, with or without and p rima
Orange County, North Carolina—Unified Development Ordinance Page 10-59