Chapter 19.52
ADULT ENTERTAINMENT FACILITIES OVERLAY ZONE
Sections:
19.52.020 Application of chapter provisions.
19.52.040 Adult entertainment facilities overlay zone established.
19.52.045 Overlay zone map adopted.
19.52.050 Adult entertainment overlay zone use restrictions.
19.52.010 Purpose.
The purpose of this chapter is to establish an overlay district within which adult entertainment facilities may be located in such a way as to mitigate the adverse secondary effects associated with such facilities. Because of the adverse secondary effects of adult entertainment facilities, restrictions on location are necessary: to protect residents, especially sensitive uses such as schools, religious institutions, parks and residential neighborhoods, from crimes, nuisances and disturbances of the public welfare, peace and safety; to preserve property values; and to respect the place of neighborhoods, schools, religious institutions and parks in the city of Oak Harbor. It is not the intention of this chapter to suppress any constitutionally protected speech or expression, but to provide sufficient alternative avenues of communication for adult entertainment uses at the same time as providing appropriate zoning and separation between adult entertainment facilities and potentially conflicting uses. (Ord. 1601 § 2, 2011).
19.52.020 Application of chapter provisions.
Adult entertainment facilities, as defined in OHMC 19.52.030(2), shall only be permitted within the adult entertainment facilities overlay zone established herein. This chapter applies to all adult entertainment facilities located within the city of Oak Harbor. (Ord. 1601 § 2, 2011).
19.52.030 Definitions.
The following definitions shall apply to this chapter.
(1) “Adult entertainment” shall have the meaning set out in OHMC 5.10.020.
(2) “Adult entertainment facility” shall mean any commercial premises or club to which any patron is invited or admitted and where adult entertainment is provided on a regular basis or is provided as a substantial part of the premises activity.
(3) “Overlay zone” shall mean that portion of the industrial zone and the planned industrial park zone in which adult entertainment establishments may be located.
(4) “Potentially conflicting uses” shall mean schools, religious institutions, residential zones and parks established within the city of Oak Harbor as of the date of the ordinance codified in this chapter. The term “potentially conflicting uses” shall also mean any such other uses which the city council shall determine require separation from adult entertainment facilities, provided that the addition of any such uses shall require a review of available lands to ensure sufficient alternative avenues of communication for adult entertainment uses are available. (Ord. 1601 § 2, 2011).
19.52.040 Adult entertainment facilities overlay zone established.
There is established an adult entertainment facilities overlay zone in the city of Oak Harbor. The adult entertainment facilities overlay zone shall overlay the industrial zone and the planned industrial park zone. It does not include certain portions of the industrial zone and the planned industrial park zone in which potentially conflicting uses were located at the time of adoption of the ordinance codified in this chapter. The following exclusions from the industrial zone and the planned industrial park zones were applied to establish the adult entertainment facilities overlay zone:
(1) The adult entertainment facilities overlay zone removes a buffer of 750 feet around the existing potentially conflicting uses of schools, religious institutions, and parks.
(2) A further buffer removes 750 feet around existing areas zoned exclusively for residential uses – R-1, single-family residential; R-2, limited multiple-family residential; R-3, multiple-family residential; and R-4, multiple-family residential. (Ord. 1601 § 2, 2011).
19.52.045 Overlay zone map adopted.
The adult entertainment facilities overlay zone map as attached in Exhibit A to the ordinance codified in this chapter is adopted as a pictorial description of the sole geographic areas within the city of Oak Harbor in which adult entertainment facilities are permitted. A copy of the adult entertainment facilities overlay zone map is on file with the city clerk and shall be available for public inspection and copying. (Ord. 1601 § 2, 2011).
19.52.047 Review required.
Upon permitting any use within the overlay zone, the director shall review the remaining properties in the overlay zone to ensure adequate opportunities remain for the location of adult entertainment facilities within the Oak Harbor city limits. (Ord. 1601 § 2, 2011).
19.52.050 Adult entertainment overlay zone use restrictions.
To mitigate the adverse secondary effects associated with adult entertainment facilities, the following parking and lighting restrictions shall apply within the adult entertainment facilities overlay zone:
(1) Parking Requirements. For adult entertainment facilities constructed after the effective date of the ordinance codified in this chapter all parking must be visible from the public right-of-way. For adult entertainment facilities located in buildings constructed prior to the effective date of the ordinance codified in this chapter, all parking should be visible from the public right-of-way. In cases of adult entertainment facilities located in buildings constructed prior to the effective date of the ordinance codified in this chapter where this is not feasible, access to the parking shall be in as direct a route as possible from the public right-of-way and the parking area shall remain free and clear of visual obstructions at all times. Access to the exterior rear of the building shall be denied to any persons other than employees and public officials during the performance of their respective duties and tasks by means of a fence, wall or other device approved by the city building official. On-site parking shall be required and regulated in accordance with Chapter 19.44 OHMC. Parking shall be provided at a ratio of one space for every three seats, plus one space for every two employees on the largest shift.
(2) Lighting Requirements. All on-site parking areas and premises entries of adult entertainment facilities shall be illuminated from dusk until one hour past closing hours of operation with a lighting system which provides an average maintained horizontal illumination of one foot candle of light on the parking surface and/or walkways. In addition, all on-site lighting, including signs, shall comply with the shading and directional requirements of OHMC 19.28.010(4). An on-premises exterior lighting plan shall be presented to the city building official for approval prior to the operation of any adult entertainment. (Ord. 1601 § 2, 2011).
19.52.060 Nonconforming uses.
For purposes of this title, a “nonconforming adult entertainment facility” constitutes an adult entertainment facility which lawfully exists as an adult entertainment facility which receives nonconforming status by virtue of an order from a court of competent jurisdiction, or which lawfully existed as an adult entertainment facility prior to a change in the zoning which change does not permit an adult entertainment facility in its existing location and is maintained as an adult entertainment facility although it does not comply with the adult entertainment facility zoning requirements set forth in this chapter, or is an adult entertainment facility which lawfully existed prior to annexation by the city and is maintained after the effective date of annexation and does not comply with the adult entertainment facility zoning requirements set forth in this chapter.
(1) The location of a newly established public park, permanent religious institution, or school within 750 feet or the establishment of a residential district within 750 feet of an existing adult entertainment facility shall not cause the existing adult entertainment business to be deemed a nonconforming use unless the city council makes a determination that the newly established park, religious institution or school requires separation from adult entertainment facilities, and further provided that the exclusion of any such areas from adult entertainment facility zoning overlay shall require a review of available lands to ensure sufficient alternative avenues of communication for adult entertainment uses are available.
(2) Adult entertainment facilities which are nonconforming uses in the zone in which they are located and which are located within the city limits shall be discontinued within one year of the date of becoming a nonconforming adult use business or upon the expiration of the leasehold period in existence as of the date of becoming a nonconforming adult entertainment facility, or upon the sale of the nonconforming adult entertainment facility, whichever occurs first. Adult entertainment facilities which are nonconforming as a result of annexation to the city shall be discontinued within one year of the date of annexation. Such nonconforming adult entertainment facility shall not be extended, expanded, enlarged or increased in intensity. Such prohibited activities (extend, expand, enlarge, increase in intensity) shall include:
(a) Extension of a nonconforming adult entertainment facility to any building or other structure or land area other than one occupied by such use as of the date of becoming a nonconforming adult entertainment facility.
(b) Extension of any specific type of nonconforming adult entertainment facility, as separately defined in OHMC 19.52.030(2), within a building or other structure to any portion of the floor area that was not occupied by that same type of adult entertainment facility as of the date of becoming a nonconforming adult entertainment facility.
(c) Operation of a nonconforming use in such manner as to conflict with, or to further conflict with if already conflicting as of the date of becoming a nonconforming adult entertainment facility.
(3) Any change in a nonconforming adult entertainment facility shall be to a use which is legally permitted within the zone in which it is located. In the event a nonconforming adult entertainment facility, or portion thereof, is changed to a use which is legally permitted within the zone in which it is located, then the structure or portion thereof which contained the adult entertainment facility cannot thereafter be used or reused for any type of adult entertainment facility. In the event a nonconforming adult entertainment facility building or structure is vacated, closed or abandoned for a period in excess of six months, the structure shall not thereafter be used except in conformance with a use which is legally permitted within the zone in which it is located. A vacated, closed or abandoned nonconforming adult entertainment facility building or structure shall also be subject to the discontinuation provisions of subsection (2) of this section.
(4) Repairs and alterations to a nonconforming adult entertainment facility building or structure shall be limited to nonstructural repairs and incidental alterations for normal maintenance and shall only be permitted to the extent necessitated by normal wear and tear. No structural alterations shall be allowed.
(5) A building or structure containing a nonconforming adult entertainment facility which is damaged or destroyed by fire, wind, earthquake or other natural disaster can be restored and the same use or occupancy continued or resumed provided the total cost of such restoration does not exceed 50 percent of the real valuation of the building or structure exclusive of foundations at the time of such damage; provided, that such restoration shall not extend the one-year discontinuation period established in subsection (2) of this section. Restoration of a structure or building housing a nonconforming adult entertainment facility or moneys used therefor shall not be used as factors by the examiner when considering any request of a time extension made pursuant to subsection (6) of this section.
(6) In the event the owner of a nonconforming adult entertainment facility determines that the period set forth in subsection (2) of this section does not provide the adult entertainment facility with a reasonable period of amortization, then no later than 180 days prior to the expiration of the period, the owner of a nonconforming adult entertainment facility shall make application to the city land use hearing examiner for an extension of time. Accompanying the application shall be a fee in the amount per the master fee schedule adopted by resolution of the city council and detailed information addressing the below-listed factors to be considered by the hearing examiner. In determining whether or not to grant the extension, the hearing examiner shall determine whether or not the harm or hardship to the nonconforming adult entertainment facility outweighs the benefit to be gained from the public from termination of the use. Factors to be considered by the hearing examiner include the location of the business in relation to sensitive land uses such as schools, parks, churches, residential zone(s), etc., initial capital investment, investment realization to date, life expectancy of the investment, the existence or nonexistence of a lease obligation, as well as a contingency clause permitting termination of the lease, or whether a reasonable alternate use of the property exists. The action of the hearing examiner shall be in accordance with the review process as described in Chapter 18.40 OHMC for a Review Process III.
(7) Within 30 calendar days of becoming a nonconforming adult entertainment facility, the nonconforming adult entertainment facility shall provide the city’s development services director with copies of its current leasehold document(s) which sets forth their existing leasehold time period or, in the case of a non-leasehold interest, the city’s development services director shall be provided other documents which show record of ownership. (Ord. 1696 § 84, 2014; Ord. 1601 § 2, 2011).