§ 331-112. Adult-oriented businesses., Article XII. Special Permit Uses, Chapter 331. Zoning, Part II. General Legislation, Code of Ordinances, New Rochelle

No building in which there is an adult-oriented business as defined in Article II of this chapter shall be permitted:

(1)

Within 400 feet of any other building in which there is an adult-oriented business.

(2)

Within 400 feet of a zoning district that permits residential dwellings as a principal use, except where a mixed-use or commercial/industrial boundary is adjacent to a public road or railroad, said public road or railroad shall be included within the calculation as part of the four-hundred-foot setback.

(3)

Within 400 feet of the property line of a school, house of worship, public park, public recreation facility, public community center, public library, or designated urban renewal area.

No adult-oriented business shall exceed 5,000 square feet in gross floor area.

No adult-oriented business shall be permitted in any building where the majority of the floor area of the building is in residential use, including nonconforming residential uses.

No person under the age of 18 years old shall be permitted into the premises of an adult-oriented business.

No adult-oriented business shall be permitted to provide live entertainment on the premises which involves nude dancing that is lewd, indecent or grossly sexual in nature. This shall not be construed to include conduct of being nude that constitutes a part of a bona fide live communication, demonstration or performance by a person wherein such nudity is expressive conduct incidental to and necessary for the conveyance or communication of a genuine message or public expression and is not a guise or pretense utilized to exploit nudity nor shall it include conduct that is protected by the United States or New York State Constitution.

Not more than one activity constituting an adult-oriented business shall be permitted within a single building or on a single lot.

No adult-oriented business shall be established until the issuance of a special use permit by the Planning Board and shall be subject to following additional conditions of approval:

(1)

Adult-oriented businesses shall be located on lot(s) which are a minimum of 50 feet from the property line of any lot(s) containing nonconforming residential uses or private recreational facilities, and shall be properly screened through the use of fences, walls, landscaping or other measures from adjacent structures.

(2)

The exterior appearance of any building containing an adult-oriented business shall be consistent with the character of surrounding structures and shall not detract from the appearance of the neighborhood.

(3)

Adult-oriented businesses shall conform with all existing applicable sign regulations in addition to the following specific requirements:

(a)

Signs which are illuminated in neon or which contain flashing lights shall be prohibited.

(b)

Exterior signs, displays or other advertisements which contain nude, seminude or provocative pictures shall be prohibited.

(c)

Interior signs, displays, posters or other advertisements which contain nude, seminude or provocative pictures shall be located a minimum of four feet from any window and shall not be visible from the exterior of the establishment.

(d)

The maximum surface area of all signs visible from the exterior of the establishment (including permanent and/or temporary window and door signs) shall not exceed, in the aggregate, 100 square feet per establishment, of which no more than 50 square feet may be illuminated nonflashing signs.

(e)

Permanent and/or temporary window and door signs shall not occupy more than 20% of each window or door.

An encroachment on any setback provided in this chapter shall not disqualify an entire lot from being available for an adult-oriented business if such encroachment does not exceed 2% of the proscribed setback.

Recertification and assignment of special permit.

(1)

Recertification of a special permit for adult-oriented businesses. Special permits shall be effective for three years and may be recertified for additional three-year terms under the following terms and conditions:

(a)

At least six months prior to expiration of the original or prior recertified special permit for an adult-oriented business, the permittee may request recertification of the special permit. Such request shall state that the adult-oriented business is in compliance with the special permit, with all requirements of the Zoning Code, including this § 331-112, and all other applicable statutes, laws, ordinances, codes, rules and regulations; and shall further state whether the adult-oriented business has been altered or enlarged since the issuance of the original or prior recertified special permit and, if so, in what manner.

(b)

If the Planning Board determines that the permitted adult-oriented business is in compliance with the special permit and all requirements of the Zoning Code, including this § 331-112, and all other applicable statutes, laws, ordinances, codes, rules and regulations, and that alteration or enlargement, if any, of the business does not require application for a new special permit, then the Planning Board shall issue a recertification of the special permit for the adult-oriented business. If the Planning Board determines that the business is not in compliance with the special permit, the Zoning Code, and all applicable statutes, laws, ordinances, codes, rules and regulations, or alteration or enlargement of the business requires application for a new special permit, then the Board shall deny recertification of the special permit, and in such event, such business shall not be operated after the date that the current original or prior recertified special permit expires.

(2)

Assignment of a special permit. The original or recertified special permit shall not be assigned, transferred or conveyed without the approval of the Planning Board, which shall not be unreasonably withheld. The permittee shall submit an executed assignment and assumption agreement to the Planning Board prior to obtaining such approval by which the assignee or transferee agrees to all requirements of this section and the special permit.

Public hearing.

(1)

The applicant shall notify all property owners of properties located within 400 feet of the property proposed for location of the adult-oriented business, of the date, time, and place of the public hearing in accordance with the procedures set forth in § 331-88B(4)(a).

(2)

The public hearing shall be scheduled within 32 days of the date on which a complete application is received and shall be closed within 60 days of the first date set for public hearing on the special permit application. A decision must be rendered within 30 days from the date that the public hearing is closed.

Any proposed adult-oriented business shall meet all other development standards and requirements of this Zoning Code, including but not limited to district lot and bulk regulations, parking requirements, facade and screening regulations, excepting the general standards for special permits set forth in § 331-89.

The Planning Board and/or the Sign Review Board may impose certain terms and conditions upon the granting of site plan approval for any new adult-oriented business to further the aims of this section, including but not limited to restrictions on the location and placement of advertising, street promotion, outdoor and window displays and signage, the location of merchandise and hours of operation,

Preexisting adult-oriented businesses.

(1)

Any adult-oriented business lawfully in existence and acting as said use on May 21, 1996, shall be permitted to continue as a nonconforming use. Preexisting nonconforming uses shall be terminated upon any change in the ownership or control of such business.

(2)

Any existing business(es), nightclub(s) or similar establishment(s) which has regularly conducted adult-oriented business activities prior to May 22, 1996, shall be exempt from this section, provided that the investment in such business is not insubstantial. Such businesses shall be considered preexisting nonconforming uses relating to the business on the premises in which it is located and shall be terminated upon any change in the ownership or control of such businesses.

Appeals provisions.

(1)

The Planning Board shall have the power, during review of the special permit application, to vary or modify the application of any provision of this section upon its determination, in its absolute discretion, that such variance or modification is consistent with the spirit of this Zoning Code, and upon finding that the application of the provisions of this section to a specific property will cause undue economic hardship and that such hardship is unique to that specific property.

Penalties. Any person, corporation, partnership or entity that establishes, constructs or installs any building, improvement, structure or conducts or operates any land use in violation of the provisions of this section shall be guilty of a violation and, upon conviction, subject to a penalty of up to $750 for each day that the violation continues to exist. A violation of this section shall be treated as a violation of the City Zoning Code. Nothing herein shall be construed to limit the authority of the City to seek and obtain injunctive relief for any violation of this section.