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Agenda - 02-02-2016 - 5-b - Unified Development Ordinance Text Amendment – Sexually Oriented Businesses - Closure of Public Hearing and Action (No Additional Comments Accepted)
1 ORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: February 2, 2016 Action Agenda Item No. 5-b SUBJECT: Unified Development Ordinance Text Amendment — Sexually Oriented Businesses - Closure of Public Hearing and Action (No Additional Comments Accepted) DEPARTMENT: Planning and Inspections PUBLIC HEARING: (Y/N) Yes ATTACHMENT(S): INFORMATION CONTACT: 1. Comprehensive Plan and Unified Development Michael Harvey, Planning, (919) 245-2578 Ordinance Outline Form — Sexually Oriented Craig Benedict, Planning, (919) 245-2592 Businesses (UDO/Zoning 2015-05) 2. Excerpt of DRAFT November 23, 2015 Quarterly Public Hearing Minutes 3. Excerpt of Approved December 2, 2015 Planning Board Minutes 4. Planning Board Approved Statement of Consistency 5. Statement of Consistency 6. Proposed UDO Text Amendment(s) PURPOSE: To receive the Planning Board recommendation, close the public hearing, and make a decision on text amendments to the Unified Development Ordinance (UDO) initiated by the Planning Director to adopt regulations governing the development of sexually oriented businesses. BACKGROUND: This item was presented at the November 23, 2015 Quarterly Public Hearing (materials available at: http://www.orangecountync.gov/document center/BOCCAgendaMinutes/151123.pdf ). An excerpt of draft minutes from this meeting is contained in Attachment 2. As indicated during the hearing, 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. For additional background information please refer to Section B.1 of Attachment 1. At the public hearing staff provided links to several studies and reports identifying various secondary impacts associated with sexually oriented businesses and how the proposed text amendments addressed them. Please refer to Section C.1 of Attachment 1 for a synopsis of additional comments made at the public hearing 2 Procedural Information: In accordance with Section 2.8.8 of the UDO, as it was in effect at the time this amendment was initiated, any evidence not presented at the public hearing must be submitted in writing prior to the Planning Board's recommendation. Additional oral evidence may be considered by the Planning Board only if it is for the purpose of presenting information also submitted in writing. The public hearing is held open to a date certain for the purpose of the BOCC receiving the Planning Board's recommendation and any submitted written comments. Planning Director's Recommendation: The Planning Director recommends approval of proposed text amendment and further recommends approval of the: i. Statement of Consistency, as contained in Attachment 5, indicating the proposed text amendment is consistent with the adopted Comprehensive Plan, is reasonable, and in the public interest, and ii. The text amendment as contained in Attachment 6. Planning Board Recommendation: At its December 2, 2015 meeting, the Board voted 7 to 2 to recommend approval of the Statement of Consistency. The Planning Board's signed Statement of Consistency is included within Attachment 4. The Planning Board voted 8 to 1 to recommend approval of the proposed amendment package as contained within Attachment 6. An excerpt from approved minutes from the December 2, 2015 Planning Board meeting are contained within Attachment 3. FINANCIAL IMPACT: Please refer to Section C.3 of Attachment 1 . SOCIAL JUSTICE IMPACT: The following Orange County Social Justice Goals is applicable to this agenda item: 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. RECOMMENDATION(S): The Manager recommends that the Board: 1 . Receive the Planning Board's recommendation; 2. Close the public hearing; 3. Deliberate as necessary on the proposed amendments and 4. Decide accordingly and/or adopt the Statement of Consistency, contained within Attachment 5 and the Ordinance amending the UDO contained within Attachment 6 as recommended by the Planning Board and staff. Attachment 1 3 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: - - _ El Other: Text Amendments ❑ Comprehensive Plan Text: Section(s): ® UDO Text: J UDO General Text Changes J UDO Development Standards JUDO 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 J Other: B. RATIONALE 1. Purpose/Mission 1 4 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 locational 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) 2 5 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 This item was reviewed at the November 23, 2015 Quarterly Public Hearing where the following comments were made: • A BOCC member asked why the exposure of the male breast was not included within the definition of nudity proposed for Article 10 of the UDO. There was concern we are assisting in perpetuating a stereotype holding exposure of the male and female breast should be treated differently. STAFF COMMENT: The proposed definition was taken from other similar ordinances that had survived legal challenges and staff did not want to make significant changes as a result. The definition is also consistent with the existing regulations contained within Chapter 24 Offences and Miscellaneous Regulations of the County Code of Ordinances. This portion of the County code can be viewed at: https://www.municode.com/library/nc/orange county/codes/code of ordinances?nodeld=PTIGEOR CH24OFMIPR S24- 2REEXHUFEBOVI. Exposure of the male breast is not typically viewed from either a societal or legal perspective as being inappropriate. Staff has revised the definition of nudity to address the concerns , 3 6 expressed during the public hearing. Please refer to Attachment 6 to view the revised language. • A BOCC member asked if the text amendment would create a land use regulation for nudity. There was a concern the definition could have unintended consequences, specifically on people engaging in swimming activities at private clubs or public pools. STAFF COMMENT: The proposed definition of Nudity or a State of Nudity provides clarification and context to other recommended definitions associated with sexually oriented businesses, most notably an Adult Cabaret. Defining the term, in and of itself, does not create a land use regulation allowing Planning staff to regulate nudity. For example the adoption of the proposal does not preclude individuals from swimming, skinny dipping, or sunbathing on private property, walking through their residence(s) in a state of nudity, or swimming in a public pool. What the definition is designed to do is provide context to other terms defined as being considered a sexually oriented business allowing staff to make the determination if said activity qualifies as a sexually oriented business or not. Staff reminded the Board there are existing regulations governing the exposure of the female body contained within Chapter 24 of the County Code of Ordinances. • A BOCC member asked if the proposal should include a setback from bars and/or restaurants that serve alcohol. STAFF COMMENT: Staff believes it would be difficult to argue a bar/restaurant where alcohol is served is a sensitive use whose business would be negatively impacted by the location of a sexually oriented business near them. We do not believe such a regulation would withstand a legal challenge. As an aside restaurants and bars are not listed as allowable uses within the general use zoning districts (i.e. I-1 and 1-2) where sexually oriented businesses are proposed to be allowed. • A BOCC member commented he was not comfortable with the proposal to restrict/prohibit the sale or consumption of alcohol at a sexually oriented business. • There was general discussion on where the businesses would be allowed within the County. February 2, 2016 — Receive Planning Board Recommendation d. Other N/A 2. PUBLIC INVOLVEMENT PROGRAM 4 7 I 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, 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 1-2 or 1-3 that could accommodate a sexually oriented businesses. STAFF COMMENT: There are currently no properties zoned 1-2 or 1-3. 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 (1-2) and heavy (1-3) 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: http://www.oranqecountync.qov/ORC Sep 2015 Aqenda Packaqe.pdf. Meeting notes can be viewed by utilizing the following link: http://www.orangecountync.gov/9 2 15 ORC Notes.pdf. 5 8 December 2, 2015 — The Planning Board reviewed this item at its December 2, 2015 meeting where the following comments/questions were made: • A Board member asked what was the point of regulating sexually oriented businesses as proposed within the amendment package. STAFF COMMENT: For the same reasons we regulate other businesses, to ensure there is a balance allowing for reasonable use of property while at the same time addressing potential secondary impacts created by individual land uses. Sexually oriented businesses, by their nature, can have unique impacts on adjacent properties and land uses that need to be addressed. The proposed regulations seek to do that. • A Board member asked for clarification on the County's ability to restrict alcohol consumption. STAFF COMMENT: State law grants local government the authority to regulate sexually oriented businesses including establishing regulations governing the consumption of alcohol. • A Board member asked if there any zoned properties in Orange County that would allow for the development of a sexually oriented business. STAFF COMMENT: There are existing properties that are appropriately zoned allowing for the development of a sexually oriented business. • Several Board members asked if there will there be any substantial economic development impact from approval of the proposed text amendment. STAFF COMMENT: It could be argued either way. Some individuals could argue this regulation may impede the development of a commercial venture while others will express concern over allowing sexually oriented businesses within the community. The proposed regulations are reasonable in that they allow for the development of the land use while protecting sensitive land uses (i.e. residences, schools, parks, churches, etc.) from identified secondary impacts. • A Board member indicated they believed the regulations were too strict. STAFF COMMENT: Proposed regulations are content neutral, will not restrict the general public's ability to access such businesses, does not prohibit their development outright, and is consistent with other similar regulations that have been upheld by the courts. • A Board member indicated they did not believe the text amendment was substantiated from a legal standpoint. STAFF COMMENT: Staff defers to the County Attorney to , 6 9 comment. The Board voted 8 to 1 to recommend approval of the amendment package as contained within Attachment 6. b. Advisory Boards: N/A c. Local Government Review: Staff transmitted the proposed amendment to the Towns of Chapel 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 10 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 6. Primary Staff Contact: Michael D. Harvey Planning (919) 245-2597 mharvey @orangecountync.gov 8 Attachment 2 11 Excerpt of November 23, 2015 Quarterly Public Hearing Minutes 1 DRAFT MINUTES 2 ORANGE COUNTY BOARD OF COMMISSIONERS 3 QUARTERLY PUBLIC HEARING 4 November 23, 2015 5 7:00 P.M. 6 7 The Orange County Board of Commissioners met with the Orange County Planning Board for a 8 Quarterly Public Hearing on November 23, 2015 at 7:00 p.m. at the Whitted Building, in 9 Hillsborough, N.C. 10 11 COUNTY COMMISSIONERS PRESENT: Chair Earl McKee and Commissioners Barry Jacobs, 12 Mia Burroughs, Mark Dorosin, Bernadette Pelissier and Penny Rich 13 COUNTY COMMISSIONERS ABSENT: Renee Price 14 COUNTY ATTORNEY PRESENT: John Roberts and James Bryan (Staff Attorney) 15 COUNTY STAFF PRESENT: County Manager Bonnie Hammersley and Deputy Clerk to the 16 Board David Hunt (All other staff members will be identified appropriately below) 17 PLANNING BOARD MEMBERS PRESENT: Vice Chair Lydia Wegman and Planning Board 18 members, Herman Staats, Paul Guthrie, Laura Nicholson, Andrea Rohrbacher and H.T. "Buddy" 19 Hartley 20 PLANNING BOARD MEMBERS ABSENT: Tony Blake, James Lea, Maxecine Mitchell, Patricia 21 Roberts and Lisa Stuckey 22 23 Chair McKee called the meeting to order at 7:12 p.m. 24 25 A. PUBLIC HEARING ITEMS 26 27 1. Unified Development Ordinance (UDO) Text Amendment -To review government- 28 initiated amendments to the text of the UDO regarding sexually oriented businesses. 29 30 BACKGROUND: 31 As defined within NCGS 14-202.10 a sexually oriented business means, "Any 32 businesses, or enterprises that have as one of their principal business purposes, or as a 33 significant portion of their business, an emphasis on matter and conduct depicting, describing, 34 or related to anatomical areas and sexual activities." 35 The County cannot prohibit sexually oriented businesses outright but is afforded the 36 opportunity to regulate their location and certain operational characteristics in an effort to ensure 37 identified secondary impacts are mitigated. 38 Staff is proposing to amend the UDO to establish locational criteria for such businesses 39 including mandatory setbacks from identified sensitive uses (i.e. church, school, single-family 40 residence, etc.) while allowing for their development consistent with applicable State and 41 Federal requirements and prohibiting the consumption and/or sale of alcohol. In support of 42 recommended land use regulations, staff offers the following information with respect to 43 addressing identified secondary impacts. 44 Staff's review of these studies caused a conclusion that the secondary effects of 45 sexually oriented businesses have negative impacts on the surrounding area, in the form of 46 crime and property devaluation, which will be addressed by the proposed regulations. 47 Planning staff is recommending sexually oriented businesses observe a 1,000 ft. 48 setback from each other as well as identified sensitive uses (i.e. church, residence, playground, 49 etc.). Staff is recommending the setback for several reasons, including: 50 a. Referenced studies have found the clustering of such land uses in a given area could 51 attract an undesirable quantity and quality of transients adversely impacting property values, 2 12 1 creating blight for adjacent properties, cause an increase in crime and encourages residents 2 and businesses to move elsewhere. 3 b. Courts have consistently found local communities have the legal ability and interest in 4 promoting stable neighborhoods through requiring a setback. This was viewed as being a 5 substantial government interest and the incidental impact of an ordinance regulating such 6 businesses on protected speech. (United States versus O'Brien — US Supreme Court 7 (1976); Young versus American Movie Theaters Inc. — US Supreme Court (1979) ; City of 8 Renton versus Playtime Theaters — US Supreme Court (1986)). 9 The proposed setback does not restrict the activity that can occur within the business. 10 Planning staff is recommending sexually oriented businesses not be located within a 11 structure or on property where alcohol is allowed to be sold or consumed. Staff is 12 recommending the standard for several reasons including: 13 a. Referenced studies have found such land uses could attract an undesirable quantity and 14 quality of transients adversely impacting property values, creating blight for adjacent 15 properties, and causes an increase in crime (most notably prostitution). 16 In some of these studies alcohol is identified as contributing factor. 17 b. Courts have found local communities have the legal ability to restrict or prohibit the 18 consumption/sale of alcohol (Fay versus State Board of Alcoholic Control — NC Court of 19 Appeals (1976). 20 c. State law allows governing bodies to restrict alcohol sales/consumption at sexually 21 oriented businesses. Please refer to Attachment 2. 22 The prohibition on alcohol sales/consumption does not restrict the activity that can occur 23 within the business. 24 25 Michael Harvey, Orange County Planning, made the following PowerPoint presentation: 26 27 November 23, 2015 28 Agenda Item: C-1 29 Public Hearing-Unified Development Ordinance (UDO) Text Amendment 30 Sexually Oriented Businesses 31 Orange County Planning Department 32 33 Background: 34 • Local governments cannot prohibit sexually oriented businesses outright. 35 36 • Courts and State law allow local governments to regulate their location and certain 37 operational characteristics to ensure identified secondary impacts are mitigated. 38 39 40 Proposal: 41 • Amend the UDO to allow such businesses within light and medium intensity industrial 42 districts (I-1 and 1-2), 43 — Staff is recommending these districts as there are typically less identified 44 sensitive uses in proximity to industrial developments. 45 • Require mandatory setbacks from identified sensitive uses (i.e. church, school, single- 46 family residence, etc.), and 47 • Prohibit the consumption and/or sale of alcohol. 48 49 Where Allowed (map) 50 51 Staff Findings: 3 13 1 • Studies have found sexually oriented businesses can have negative secondary impacts 2 on the surrounding area. 3 • Secondary impacts from such businesses can include increased levels of crime, sexual 4 deviance, prostitution, and negative economic impacts. 5 — STAFF COMMENT: These impacts can be addressed by the proposed 6 regulations. 7 • Studies have found consumption of alcohol at sexually oriented businesses contributes 8 to identified secondary impacts including crime, most notably prostitution, and increased 9 blight. 10 — STAFF COMMENT: This impact can be addressed by the proposed regulations. 11 • Proposed regulations are content neutral and do not restrict anyone's rights with respect 12 to engaging in a sexually oriented business activity. 13 14 Recommendation: 15 Recommendation(s): The Planning Director recommends that the Board: 16 1. Receive the request. 17 2. Conduct the Public Hearing and accept public, BOCC, and Planning Board comments. 18 3. Refer the matter to the Planning Board with a request that a recommendation be 19 returned to the BOCC in time for its February 2, 2016 regular meeting. 20 4. Adjourn the public hearing until February 2, 2016 in order to receive and accept the 21 Planning Board's recommendation and any submitted written comments. 22 23 Commissioner Dorosin asked if the Planning Board had done any analysis, within the I-1 24 and 1-2 zones, to determine how many parcels of land would meet the requirements of the 25 mandatory setbacks. He asked if there are any locations where these businesses could operate 26 given the restrictions. 27 Michael Harvey said there are currently two properties within Orange County that will 28 allow for the development of sexually oriented businesses. 29 Commissioner Dorosin asked the County Attorney if having only two parcels of available 30 land would survive a legal challenge. 31 James Bryan said it is a risk and the more sites available the less risk there is. He said 32 there is no magic number. He said another variable to consider is the size of the property and 33 whether it could hold only one business, or be subdivided. 34 Michael Harvey said there are currently two properties but that does not prevent more 35 properties from being zoned for the use of sexually oriented businesses. He said existing 36 sexually oriented businesses would still be allowed to operate legally even if future construction 37 were to cause them to fall out of compliance with the required setbacks. 38 Commissioner Dorosin asked if the two currently identified sites could hold more than 39 one business. 40 Michael Harvey said the parcels could be subdivided with two or three businesses. 41 Commissioner Pelissier referred to the risk of alcohol consumption at sexually oriented 42 businesses and asked if there are provisions in place to insure that alcohol is not being 43 consumed in other businesses next door. 44 Michael Harvey said the industrial districts do not allow restaurants or bars as permitted 45 uses of property. 46 Commissioner Rich asked if the wording in the amendment could be changed to "place 47 of worship" rather than "church and/or place of worship". 48 Michael Harvey said yes. 49 Commissioner Rich referred to page 21 and asked for the source of the definition of the 50 "state of nudity". 51 Michael Harvey said from State law and example ordinances throughout the State. 4 14 1 Commissioner Rich said the wording of this definition was strange and discriminatory to 2 the female body by identifying the bare female chest as obscene but not the bare male chest as 3 such. 4 Michael Harvey said this stems from the obscenity statute. 5 Commissioner Rich asked if the language must follow the statute. She said the 6 woman's body is constantly being put down and this reinforces that a woman's breasts should 7 not be seen. 8 James Bryan said he could review the issue. 9 Commissioner Rich asked if there could be clarity regarding the definition of male 10 genitalia. 11 Michael Harvey said he is unsure of her question. 12 Commissioner Rich said she does not understand why male genitalia is listed as 13 obscene, and that her teenage sons were naked in their home. 14 Michael Harvey said these definitions are referring to sexually oriented businesses and 15 an effort to keep these businesses operating appropriately. 16 Commissioner Dorosin said the ordinance is designed to keep actual live sex shows 17 from taking place. 18 Commissioner Rich said is struggling with the definition and she would like it to be more 19 general. 20 Michael Harvey said the specificity insures that some of the concerns expressed by 21 Commissioner Rich do not fall into an over ambiguous category, where unnecessary regulation 22 occurs; while allowing for the regulation of activities that have been deemed to be classified as 23 sexually oriented businesses. 24 Commissioner Dorosin said nude dancing cannot be regulated as it is protected by the 25 first amendment; but actual live sex shows can be regulated. 26 Commissioner Rich said the language requires that a woman, who is dancing nude, 27 must cover her breasts. 28 Michael Harvey said the language says that a woman wearing pasties is not considered 29 to be nude, or in a state of nudity. 30 Commissioner Rich said she would like to see the language include both male and 31 female. 32 Commissioner Jacobs asked if alcohol could be sold if the business is a private club. 33 Michael Harvey said he would refer to the attorney, but added that a private club could 34 serve alcohol but a private club could not be a sexually oriented business as alcohol is being 35 sold and consumed. 36 Commissioner Jacobs gave the example of a country club that served alcohol. He 37 asked if a man swimming topless at the country club pool would be in violation of the ordinance, 38 as alcohol is being served and he is shirtless. 39 Michael Harvey said the man would not be at a sexually oriented business or engaging 40 in a sexual activity. 41 Commissioner Jacobs asked if the country club would be a sexually oriented business if 42 the wait staff were to be topless. 43 Michael Harvey said yes. He said if one is engaging in a business practice or activity 44 where one is enjoying a meal while also ogling naked members of the opposite sex then the 45 nature of the business meets the standard of a sexually oriented business. He said getting out 46 of the pool without a shirt has nothing to do with offering a service for compensation or for any 47 form of pay. 48 Commissioner Jacobs asked what would happen if the wait staff were dressed in bathing 49 suits. 5 15 1 Michael Harvey said the line gets crossed when a business model starts providing 2 specific activities that meet the definition of a sexually oriented business. He gave the example 3 that the restaurant Hooters does not meet the definition of a sexually oriented business. 4 Commissioner Jacobs said we get closer and closer to a preposterous line. 5 Commissioner Jacobs asked if there are any qualifying properties in the speedway 6 economic development area. 7 Michael Harvey said this property is not zoned industrial. 8 Commissioner Jacobs asked if this area could be rezoned. 9 Michael Harvey said no, not in his opinion. 10 Commissioner Rich asked if there are currently any sexually oriented businesses in 11 Orange County. 12 Michael Harvey said none of which he is aware. 13 Commissioner Rich asked if there are any businesses that would like to apply to come to 14 Orange County. 15 He said there have been several inquiries during his tenure but no one has followed 16 through. He said these businesses cannot be banned but they can be regulated. 17 Commissioner Dorosin referenced an all-girl staff establishment near 1-85. 18 Michael Harvey said this business closed down, and that property is zoned economic 19 development Hillsborough, medium intensity and would not be allowed to reopen as a sexually 20 oriented business. 21 Commissioner Dorosin asked how the business opened in the first place. 22 Michael Harvey said it probably pre-dated zoning. 23 Commissioner Dorosin said there are a lot of negatives about these businesses, 24 especially how women are exploited, and he is glad that the County is regulating them. He 25 added that he does not support the banning of alcohol in these businesses. 26 Chair McKee said a reason for banning alcohol would be to add one more step in the 27 process of establishing a sexually oriented business, thus making it harder to do so. He said he 28 is in favor of banning the sale of alcohol at sexually oriented businesses. 29 30 A motion was made by Commissioner Pelissier, seconded by Commissioner Rich to 31 refer the matter to the Planning Board with a request that a recommendation be returned to the 32 BOCC in time for its February 2, 2016 regular meeting and to adjourn the public hearing until 33 February 2, 2016 in order to receive and accept the Planning Board's recommendation and any 34 submitted written comments. 35 36 VOTE: Ayes, 5; Nayes, 1 (Commissioner Dorosin) 37 MOTION PASSES 38 39 Chair McKee noted that Commissioner Price was unable to attend the meeting this 40 evening. Attachment 3 16 Excerpt of Approved Approved 1/6/2016 December 2, 2015 1 Planning Board Minutes 2 PLANNING BOARD 3 DECEMBER 2,2015 4 REGULAR MEETING 5 6 MEMBERS PRESENT: Lydia Wegman (Vice Chair), At-Large Chapel Hill Township; James Lea, Cedar Grove 7 Township Representative; Paul Guthrie, At-Large Chapel Hill Township; Andrea Rohrbacher, At-Large Chapel Hill 8 Township; Maxecine Mitchell, At-Large Bingham Township; Buddy Hartley, Little River Township Representative; 9 Patricia Roberts, Cheeks Township Representative; Laura Nicholson, Eno Township Representative; Herman Staats, 10 At-Large; 11 12 MEMBERS ABSENT: Lisa Stuckey, Chapel Hill Township Representative; Tony Blake, Bingham Township 13 Representative; 14 15 STAFF PRESENT: Craig Benedict, Planning Director; Michael Harvey, Current Planning Supervisor, Perdita Holtz, 16 Special Projects Coordinator, Meredith Pucci,Administrative Assistant II; 17 18 19 AGENDA ITEM 8: UNIFIED DEVELOPMENT ORDINANCE(UDO)TEXT AMENDMENT-To make a 20 recommendation to the BOCC on government-initiated amendments to the text of the UDO 21 regarding sexually oriented businesses. This item was heard at the November 23, 2015 22 quarterly public hearing 23 PRESENTER: Michael Harvey, Current Planning Supervisor 24 25 Michael Harvey reviewed abstract 26 27 Patricia Roberts: What is the point of regulating such businesses? 28 29 Michael Harvey: For the same reasons we regulate other businesses. We want to ensure there is a balance allowing 30 for reasonable use of property. Sexually oriented businesses have identified secondary impacts that can affect 31 adjacent property owners. What these regulations are designed to do is ensure they can be developed and not have 32 an impact on those identified sensitive land uses. 33 34 Maxecine Mitchell:Are we legally able to restrict alcohol consumption from certain businesses? 35 36 Michael Harvey: State law grants local government the authority to regulate sexually oriented businesses including 37 establishing regulations governing the consumption of alcohol. 38 39 Laura Nicholson:Are there any zoned properties in Orange County that would allow this? 40 41 Michael Harvey: Yes there are a few properties zoned that could allow for the development of a sexually oriented 42 business. 43 44 Maxecine Mitchell: So if these lots are developed, any new sexually oriented businesses will need to get a property 45 rezoned for this kind of land use? 46 47 Michael Harvey: That is correct if available property is developed for such a use. There is, however, available land 48 area that could be rezoned to support such development. 49 50 James Lea:Will there be any substantial economic development impact from approval of the text amendment? 51 52 Michael Harvey: It depends on your point of view. There are those that might argue this regulation may impede the 53 development of a commercial venture. There is also a possibility local businesses may have an aversion to having a 1 17 Approved 1/6/2016 54 sexually oriented business locating near them because of perception concerns and a desire not to want to see it. 55 From my standpoint, however, I believe the proposed regulation is reasonable. 56 57 Lydia Wegman: Does anyone have any further questions or concerns before we consider a motion? 58 59 Laura Nicholson: I just wanted to say that I think you all did a great job of including everyone's concerns from the 60 quarterly public hearing. 61 62 Patricia Roberts: I still have concerns with regulating such businesses, especially how it is listed in the amendment. I 63 feel that these regulations are strict. 64 65 Paul Guthrie: I don't feel as if this text amendment is substantiated from a legal standpoint. 66 67 Lydia Wegman: If there aren't any other questions let's move forward with our first motion. 68 69 MOTION made by Buddy Hartley to approve changes. Herman Staats seconded. 70 VOTE: 7—2(Paul Guthrie and Patricia Roberts) 71 72 Lydia Wegman: Can you please state your reason for opposition? 73 74 Paul Guthrie: I disagree for the reason previously stated. 75 76 Patricia Roberts: I don't think we should be so heavily restricting sexually oriented businesses. 77 78 Lydia Wegman: Should we go around the room to see if there are any concerns making the recommendations to the 79 BOCC? 80 81 Maxecine Mitchell: I recommend it. 82 83 Patricia Roberts: I don't have any opposition I guess. 84 85 Andrea Rohrbacher: I recommend the changes to be adopted. 86 87 Herman Staats: I have no concerns. 88 89 James Lea: I have no concerns. 90 91 Paul Guthrie: I still have concerns about the legality. 92 93 Buddy Hartley: I am fine with everything,so I recommend it. 94 95 Laura Nicholson: I am generally in favor. 96 97 Lydia Wegman: I see no concerns. Do we have a motion? 98 99 MOTION made by Buddy Hartley to make the recommendations to BOCC. Seconded by Andrea Rohrbacher. 100 VOTE: 8-1 (Paul Guthrie) 101 102 Paul Guthrie: I am opposed for the same reasons previously explained. 103 2 18 Attachment 4 STATEMENT OF CONSISTENCY OF PROPOSED UNIFIED DEVELOPMENT ORDINANCE TEXT AMENDMENT WITH THE 2030 COMPREHENSIVE PLAN Orange County has initiated an amendment to the Unified Development Ordinance (UDO) to revise existing regulations governing the development of sexually oriented businesses. The Planning Board finds: a. The requirements of Section 2.8 of the UDO have been deemed complete; and, b. Pursuant to Sections 1.1.5, and 1.1.7 of the UDO and to Section 153A-341 of the North Carolina General Statutes, the Board finds sufficient documentation within the record denoting that the amendment is consistent with the adopted 2030 Comprehensive Plan. 1. The amendment is consistent with applicable plans because it supports the following 2030 Comprehensive Plan goals and objectives: • 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 3: A variety of land uses that are coordinated within a program and pattern that limits sprawl, preserves community and rural character, minimizes land use conflicts, supported by an efficient and balanced transportation system. • Land Use Goal 6: A land use planning process that is transparent, fair, open, efficient, and responsive. c. The amendment is reasonable and in the public interest because it: 1. Establishes legally defensible, content neutral, regulations designed to mitigate the identified secondary impacts associated with sexually oriented businesses, including: a. Studies referenced at the November 23, 2015 Quarterly Public Hearing found the clustering of sexually oriented businesses 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 encourage residents and businesses to move elsewhere. These studies recommended the establishment of setback standards requiring sexually oriented businesses to be separated from identified sensitive uses. b. Studies referenced at the November 23, 2015 Quarterly Public Hearing indicate that alcohol is identified as contributing factor in attracting an undesirable quantity and quality of transients adversely impacting property values, creating blight, and causing an increase in crime. Courts have found, most notably Fay versus i 19 State Board of Alcoholic Control — NC Court of Appeals, local communities have the legal ability to restrict or prohibit the consumption/sale of alcohol. 2. Establishes uniform standards of development for sexually oriented businesses within the County. 3. Promotes public health, safety, and general welfare by furthering the goals and objectives of the 2030 Comprehensive Plan. The Planning Board hereby recommends that the Orange County Board of County Commissioners consider adoption of the proposed UDO Text Amendments. ) � Lydia Wegman, ice-Chair Date 20 Attachment 5 STATEMENT OF CONSISTENCY OF PROPOSED UNIFIED DEVELOPMENT ORDINANCE TEXT AMENDMENT WITH THE 2030 COMPREHENSIVE PLAN Orange County has initiated an amendment to the Unified Development Ordinance (UDO) to revise existing regulations governing the development of sexually oriented businesses. The Board of County Commissioners finds: a. The requirements of Section 2.8 of the UDO have been deemed complete; and, b. Pursuant to Sections 1.1.5, and 1.1.7 of the UDO and to Section 153A-341 of the North Carolina General Statutes, the Board finds sufficient documentation within the record denoting that the amendment is consistent with the adopted 2030 Comprehensive Plan. 1. The amendment is consistent with applicable plans because it supports the following 2030 Comprehensive Plan goals and objectives: • 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 3: A variety of land uses that are coordinated within a program and pattern that limits sprawl, preserves community and rural character, minimizes land use conflicts, supported by an efficient and balanced transportation system. • Land Use Goal 6: A land use planning process that is transparent, fair, open, efficient, and responsive. c. The amendment is reasonable and in the public interest because it: 1 . Establishes legally defensible, content neutral, regulations designed to mitigate the identified secondary impacts associated with sexually oriented businesses, including: a. Studies referenced at the November 23, 2015 Quarterly Public Hearing found the clustering of sexually oriented businesses 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 encourage residents and businesses to move elsewhere. These studies recommended the establishment of setback standards requiring sexually oriented businesses to be separated from identified sensitive uses. b. Studies referenced at the November 23, 2015 Quarterly Public Hearing indicate that alcohol is identified as contributing factor in attracting an undesirable quantity and quality of transients adversely impacting property values, creating blight, and causing 21 an increase in crime. Courts have found, most notably Fay versus State Board of Alcoholic Control — NC Court of Appeals, local communities have the legal ability to restrict or prohibit the consumption/sale of alcohol. 2. Establishes uniform standards of development for sexually oriented businesses within the County. 3. Promotes public health, safety, and general welfare by furthering the goals and objectives of the 2030 Comprehensive Plan. The Board of County Commissioners hereby adopts this Statement of Consistency and findings expressed herein. Earl McKee, Chair Date Attachment 6 22 Ordinance#:ORD-2016-004 AN ORDINANCE AMENDING THE ORANGE COUNTY UNIFIED DEVELOPMENT ORDINANCE WHEREAS, Orange County has initiated amendment(s) to the Orange County Unified Development Ordinance in order to adopt regulations governing the location and development of sexually oriented businesses, and WHEREAS, numerous studies, most notably: a. A 2013 study for Louisville Kentucky by Eric S. McCord and Richard Tewksbury; A 2011 study entitled The ASSOCIATION of Adult Businesses with Secondary Effects: Legal Doctrine, Social Theory, and b. Empirical Evidence authored by Alan C. Weinstein and Richard McCleary; and c. A 1996 report completed by the American Center for Law and Justice have indicated sexually oriented businesses support detrimental activities (i.e. personal and property crimes, prostitution, drugs, etc.) within the vicinity of their operation(s) that are incompatible with activities occurring within residential areas, and have a negative impact on local businesses, and WHEREAS, these same studies indicate there is evidence when sexually oriented businesses are located near each other and/or near businesses that serve alcohol, identified secondary impacts are increased, and WHEREAS, 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, and WHEREAS, the courts have consistently found local communities have the legal ability and interest in promoting stable neighborhoods through requiring setbacks and limiting the operational parameters of sexually oriented businesses to address identified secondary impacts, and WHEREAS, the courts have found local communities have the legal ability to restrict or prohibit the consumption/sale of alcohol at sexually oriented businesses to address identified secondary impacts, and WHEREAS, the County has determined the secondary effects of sexually oriented businesses have negative secondary impacts on the surrounding area, which will be addressed by the proposed regulations. 23 WHEREAS, the County has found the proposed text amendments to be reasonably necessary to promote public health, safety and general welfare and to achieve the purposes of the adopted Comprehensive Plan, and WHEREAS, the requirements of Section 2.8 of the Unified Development Ordinance have been deemed complete, and WHEREAS, pursuant to North Carolina General Statute 153A-341 and Section 1.1.7 of the Unified Development Ordinance, the Board of Commissioners of Orange County has found the proposed text amendments to be consistent with the goals and policies of the adopted Comprehensive Plan. BE IT ORDAINED by the Board of Commissioners of Orange County that the Unified Development Ordinance of Orange County is hereby amended as depicted in the attached pages. BE IT FURTHER ORDAINED that this ordinance be placed in the book of published ordinances and that this ordinance is effective upon its adoption. Upon motion of Commissioner , seconded by Commissioner , the foregoing ordinance was adopted this day of , 2016. I, Donna S. Baker, Clerk to the Board of Commissioners for Orange County, DO HEREBY CERTIFY that the foregoing is a true copy of so much of the proceedings of said Board at a meeting held on , 2016 as relates in any way to the adoption of the foregoing and that said proceedings are recorded in the minutes of the said Board. WITNESS my hand and the seal of said County, this day of 2016. 24 UDO AMENDMENT PACKET NOTES: The following packet details staff's proposed modifications to existing regulations associated with the review and permitting of sexually oriented businesses. As the number of affected pages/sections of the existing UDO are being modified with this proposal staff has divided the proposed amendments into the following color coded classifications: • Red Underlined Text: Denotes new, proposed text, that staff is suggesting be added to the UDO • Red Strikethrough Text: Denotes existing text that staff is proposing to delete • Green Bold Underlined Text: Denotes new, proposed text, designed to address comments made at the November 23, 2015 Quarterly Public Hearing. Staff has included footnotes within the amendment package to provide additional information/rationale concerning the proposed amendments to aid in your review. Only those pages of the UDO impacted by the proposed modification(s) have been included within this packet. Some text on the following pages has a large "X" through it to denote that these sections are not part of the amendments under consideration. The text is shown only because in the full UDO it is on the same page as text proposed for amendment or footnotes from previous sections `spill over' onto the included page. Text with a large "X" is not proposed for deletion. Please note that the page numbers in this amendment packet may or may not necessarily correspond to the page numbers in the adopted UDO because adding text may shift all of the text/sections downward. Users are reminded that these excerpts are part of a much larger document (the UDO) that regulates land use and development in Orange County. The full UDO is available online at: http://www.orangecountync.govidepartments/planning and inspections/UDO MOST CURRE NT updated_120915.pdf Article 5: Uses 25 Section 5.2:Table of Permitted Uses TABLE OF PERMITTED USES-GENERAL USE ZONING DISTRICTS *= jallPERMITTED USE A=CLASS A SPECIAL USE B=CLASS B SPECIAL USE A=SUBJECT TO SPECIAL STAND GENERAL USE ZONING DISTRICTS USE TYPE PB AR R1 R2 R3 R4 R5 R8 R13 LC1 NC2 CC3 GC4 EC5 01 AS El 11 12 13 PID -- Use may not be .- milled as a Conditional Use District; - - ection 5.1.4(E) A Allowed as more than one p '• '.al use if located on a b.-. ide farm (see Section 6.2.5) Repair Service Electronic&Appliance ----'.'.-©©©©-------- Restaurants: Carry Out ---.'.`'--©©©©------- Restaurants: Drive In --"---.`.-EMI©------- Restaurants: General "-------'M©©©------- EMEMNIMMMMMMMMME1 mum MMMMMMM EMEMEMMMMMMMMMM -------MMM —©-"----- Rural Guest Estab. - ent: Bed &Breakfast A ©©©-------------"--- -= stablishment: Bed &Breakfast Inn A - B B --------------.`'- . al Guest Establishment: Country Inn A - A A ----------------.M I Sexually Oriented Businesses ------------------®®- . ;!- .f Goods, Outdoor- -------------©---©©vM Storage or Warehou ' • 'de Building ------------©©©--0.©- Studio(Art) ------MMMI i nli�aliMEIMM Taxidermy A -gliall-_----_-���©----©--- Tourist Home -----00�©-----©------ Wholesale Trade- --�------511-_©©©©--©©©- Winery with Minor Events A —. B ......----r ----..mi- Imme . in of Earth Products- - A ------------- A - A 0M 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: Uses 26 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 0 - ge 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 comprehe e groundwater study, for faciliti- expected to use more groundwater . an annual basis than an average single fam residence (which uses 240 allons of water per day) built at the highest densit e existing zoning • . rict would allow. For example, if the existing zoning dis •ct allows a - idential density of 1 unit for 2 acres and the proposed use is on a acr •arcel (which could yield 3 residences), the proposed use(s) may us ee times the water used by an average single family residence (or 720 g. •ns per •_ , on an annualized basis) before a comprehensive •'•undwater stud required. The water usage rates of any existing use .eject to zoning regulati•• located on the same lot shall be taken into acco. t when determining if a compr-•-nsive groundwater study is required. Said . dy shall detail: -) The amount of water anticipated to be used . a daily, weekly, monthly, and annual basis by regulated uses located on - parcel (e.g., water usage by bona fide farm uses is not required to be i . uded); (b) An analysis of the amount of groundwater withdrawal con .•ered to be safe and sustainable in the immediate vicinity; and (c) An analysis of whether other wells in the vicinity of the proposed use re 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 allowing for the operation of a sexually oriented business in accordance with Chapter 8 2 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 building 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 existing sexually oriented business. (b) Within 1,000 feet of a: (i) Residential land use including 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. 2 Purple Bold Underlined text added to address County Attorney's comment from staff agenda review held on January 20,2016. Orange County, North Carolina—Unified Development Ordinance Page 5-62 Article 5: Uses 27 Section 5.7: Standards for Recreational Uses (c) Measurement shall be made in a straight line, without regard to the intervening structures or objects, from the nearest portion of the building 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. SECTION 5.7• STANDARDS FOR RECREATIONAL USES 5.7. Recreational Facilities A) General Standards of Evaluation (1) The standards included herein shall be applied to the following for-p 'fit recreational facilities: (a) Tennis clubs, (b) Swim clubs, (c) Racquet ball, (• Squash clubs, (e) Pitch and putt courses, (f) amusement areas, (g) Bo ing alleys, (h) Skatin. rinks, (i) Shooting .nges, (j) Billiard and pool halls, (k) Indoor athletic f..iliti: and (I) Other similar use . (2) The minimum lot area : all be o acres. (3) No building shall b- closer than the minimum requirements of the district or 20 feet to the public 'ght of way or priv.'e property line, whichever is greater. (B) Standards for Class = Special Use Permit (1) Submittal •equirements In addi ..n to the information required by Secti. 2.7, the following information shall .e supplied as part of the application for approval of this use: (- A description of the exact type facility plann:•, the amount of area, including and number of members or participa,ts expected, a site plan showing siting and size of existing and propose. suilding. (b) Access, parking, service and recreation areas for a slanned facilities or existing facilities. (c) Plans, and elevation for all proposed and existing structu -s and descriptions of the color and nature of all exterior materials. (d) A landscape plan showing, at the same scale as the site plan, :xisting and proposed trees, shrubs, ground cover and any other landsc..e materials. Orange County, North Carolina—Unified Development Ordinance Page 5-63 28 ARTICLE 8: NONCONFORMITIES SECTION 8. - 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.3 SECTION 8. LASSIFICATION Non-conformities are classified as: (• Lots (see Section 8.7); (B) Uses of land without structures or minor structures (see Section 8.8); (C) --s of major structures and premises (see Section 8.9); (D) Struct► es (see Section 8.10); and/or (E) Characters- ics of uses (see Section 8.11) which were lawful but ■•uld be prohibited, regulated, or restrictes sy the enactment of this Ordinance or a subseque amendment thereto. • ► : • • ∎i . I • ► • ►_ • 8.3.1 Valid Permit Issued All non-conforming projects on which con ructi. was begun at least 180 days before the effective date of this Ordinance, or any mo. ation thereto, as well as all non-conforming projects that are at least 25% completed it er of the total expected cost of the project on the effective date of this Ordinance, or any odificati. thereto, may be completed in accordance with the terms of their permits, so to • as these per s were validly issued and remain unrevoked and unexpired. If a de -lopment is designee to be completed in stages, this subsection shall only apply to t►- particular phase under c. struction. (A) Except as provides his Section, all work on any non-ce forming project shall cease on the effective da of this Ordinance, or any modification t' -reto, and all permits previously is .ed for work on non-conforming projects shall .e revoked as of that date. Thereafter ork on non-conforming projects may begin or ma se continued only pursua to a zoning or special use permit issued in accordance h this Ordinance by the P .nning Director or board authorized to issue permits for the typ: of development pr.nosed. The county shall issue such a permit if it finds that the appli :nt has in good aith made substantial expenditures or incurred substantial binding obligat . s in some substantial way in reasonable reliance on conditions as they existed before t' - effective date of this Ordinance, or any modification thereto, and thereby would be unrea-snably prejudiced if not allowed to complete the project as proposed. In considering whet -r these findings may be made, the Planning Director or appropriate board shall be gui._d by the following: 3 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 29 ARTICLE 10: DEFINITIONS SECTION 10.1: DEFINITIONS For the pu :•se of this Ordinance, certain terms and words are herein defined and in - .reted as follows: AASHTO American Association of State Hie ay and Transportation Off s. Accessory Structure A structure that is located on the same lot as inc .-1 structure and houses an accessory use. Accessory Use An activity that may or may n. .e listed in the Permitted Use Table, h is conducted in conjunction with a permitted princip. e, but constitutes only an incidental or insubsta - part of the total activity that takes place on - lot and is customary and ancillary to the established princi• • use of property. Accessory us-: hall comply with all setback requirements for the district in which the - is located. For example . in-ground swimming pool is required to meet all applicable setbacks including a equired fen • around the physical pool, the concrete walkway around the pool, and any pump or utilities .ssociated with the operation of the facility. Adult Uses An establishment which has a majority of its business which excludos minors by roason of age bocauco of the sexually explicit nature of the material. Such establishments include, but are not limited to, adult Adult Arcade Any place to which the public is permitted or invited wherein coin-operated or slug-operated or electronically, electrically, or mechanically controlled still or motion picture machines, projectors, or other image-producing devices are maintained to show images to five or fewer persons per machine at any one time, and where the images so displayed are distinguished or characterized by the depicting or describing of Specified Sexual Activities or Specified Anatomical Areas. Adult Bookstore 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 article; 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. 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 expose a Specified Anatomical Area; or (b) Live performances that are characterized by the exposure of Specified Anatomical Areas or by Specified Sexual Activities; or Article 10: Definitions 30 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, Communitl A facility s -d for the processing of produce and/or other commodities produced b •• more than 5 cooperative farm s. sers for the consumption of others (e.g. small canning . .tion); Activities shall include, but may not be li to, canning, dehydrations, washing, g or basic preparation of raw produce but does not include proce ••, of live animals (se- -at Processing Facility). May include accessory retail sales of products processes :•-site Myncultural Processing r= A facility utilized for the pr.- sing and packaging of produce and/or o .mmodities for transport to off-site wholesale • ail establishments. Facilities may be utilized by farm-bas-. • oducers, restaurat-_ , caterers, food entrepreneurs, and the like. Activities shall include, but may se limited to, c.•- g, dehydrations, washing, cutting or basic preparation of raw produce prior to shipment bu Orange County, North Carolina—Unified Development Ordinance Page 10-2 Article 10: Definitions 31 Section 10.1: Definitions customary accessories, ornaments, u la...=--- .nc.scaping shall be permitted in any setback if they do not constitute s.• -• .-.iments to free flow of light an. ai - •- -tback or violate provisions - e 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. Sigr A q letter, figure, character, mark, plane, point, marquee, design, poster, pictorial, picture, stroke, ipe, line, ademark, reading matter, or illuminated surface which is constructed, placed, attached, pair ed, erecte. fastened or manufactured in any manner so that the same shall be used for the attrac ..n of the public to . y place, subject, person, firm, corporation, public performance, article, machine, • merchandis- which are displayed in any manner, including out-of-doors. Sign, Abando c+ A sign for which no l-:al owner can be found or any sign face or sign structure th. advertises a business not conducted on the p :mises for over 90 days. In making the determination th-. a sign advertises a business no longer being inducted, the Planning Director shall consider the '.flowing: the existence or absence of a current occupa ..nal license, utility service deposit, or accou , use of the premises; and relocation of the business. Abandoned Sign shall also includ- he following: a) Through age and/or obsoles.-nce a sign that no longer co •.rms to structural or maintenance specifications of Section 6.12, b) Any pole, pylon, or structure expr-.,sly installed for the urpose of affixing a sign that bears no sign or copy. Sign, Advertiser Any person who is a lessee or owner of a sign, an as t of same, or anyone that has beneficial use of a sign. Sign, Advertising Display Area The advertising display surface area enco -passed within any pi gon that would enclose all parts of the sign. The structural supports for a sign, - hether, they be columns, Ions, or a building, or a part thereof, shall not be included in the advertisin. area. Also known as Sign Are. An example of how advertising .isplay area or sign area is calculate. 's as follows: Orange County, North Carolina—Unified Development Ordinance Page 10-39 Article 10: Definitions 32 Section 10.1: Definitions ecial Event A co • ercial activity attracting at least 20 people at any given time, that typically does no volve perman-qt structures, and does not occur more frequently than seven days in a 30-da geriod or more than 50 da ger year. Examples of special events are craft shows, small festivals -oncerts, medical or veterinary clini and sites operated by businesses engaged in hosting outdoor :ocial events such as picnics or receptio sponsored by a restaurant or caterer. Activities which are n• included in this definition include: a) Events of a pers.gal or non-profit, nature such as family reun'e s and church activities; b) Farm-related or rura -vents such as horse shows, 4-H ev- s and auctions; and c) Fund-raising events for •.n-profit organizations. Special Flood Hazard Area (S -H) The land in the floodplain subject to a 1% • greater • ance of being flooded in any given year as determined in Section 4.3 of this Ordinance, a- d- fined by the base flood elevation. The mapped special flood hazard area approximates the base floo• e - ation. Special Flood Hazard Area 0 • lay District An overlay district establishing sta ards for development fo groperties within identified floodplains. Special-Purpose Uni Government Any special district or p . is authority. Special Use A use which -.uld not be appropriate generally throughout the zoning district or out special study, but which, if s trolled as to number, area, location or relation to neighborhood, would be -gpropriate. Such uses ich are listed as Special Uses in the Permitted Use Table, Section 5.2, may be i ailed and op- -ted only after approval by the Board of Commissioners or by the Board of Adjustment, -gpropriate, 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. rt of Construction Inclu.- substantial improvement, and means the date the building permit was issued, provid-: e actual star • onstruction, repair, reconstruction, rehabilitation, addition placement, or • =r improvement wa 'thin 180 days of the permit date. The actual start means eith- e first placement of permanent constructio 5 a structure (including a manufactured home) on - e, such as the pouring of slabs or footings, installation : •files, construction of columns, or any e beyond the stage of excavation; or the placement of a ufactured home on a foung. on. Permanent construction does not include land preparation, such as clean grading, 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 a . elling units : of part of the main structure. For a substantial improvement, the actual .rt of construction mean ge first alteration of any wall, ceiling, floor, or other structural part of -- building, whether or not that alter. '•n affects the external dimensions of the building. State Ag- • y Ever 4-gartment, agency, institution, public authority, board, commission, bureau, division, , ncil, ber 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