HomeMy WebLinkAboutord1999-070W HATCOM COUNTY COUNCIL AGENDA BILL NO. 9 9 -yea -
CLEARANCES
Initial
Date
Date Received in Council Office
Agenda Date
Assigned to:
.ginator: Matt W. Aamot
tS
GO"' E V
E O
0 C T 1 9 1999
WIJATCOM COUNlY
COUNCIL
26 -99
Council Introduction
Division Head: Sylvia Goodwin
II -9 -99
Planning & Development
Committee
Dept. Head: Michael T. Knapp
A�,
8 ��5�
II -23 -99
Final Council Action
Prosecutor: Dave Grant
PurchasingBudget.
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Executive: Pete Kremen
I
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SUBJECT. Ordinance adopting eomprehensive Plan amendments, along with associated Zoning amendments, relating to adult
entertainment (File # CMP99- 00004).
ATTACHMENTS:
(1) Proposed Ordinance.
SEPA review required? ( x ) Yes ( ) NO
SEPA review completed? ( x ) Yes ( ) NO
Should Clerk schedule a hearing? ( ) Yes ( xl ) NO
Requested Date:
I The Council must hold a hearing if they want to change the Planning
Commission's recommendation (WCC 20.10. 110 and WCC 20.90.090).
WMAR Y STA TEMENT. The request is to adopt amendments to the Whatcom
County Comprehensive Plan and associated changes to the Zoning establishing
criteria for locating adult businesses.
The Growth Management Act requires that Comprehensive Plan amendments be
considered only once per year, with certain exceptions. All amendments must be
considered concurrently. In 1999, the County Council initiated 13 amendments
for review under Resolution No. 99 -012. The Planning Commission held
multiple hearings to consider these amendments. The Planning Commission
took a ftnal vote on the package of the 13 amendments on October 14, 1999. The
Council is requested to adopt the Planning Commission's recommendations or,
alternatively, to hold a hearing and adopt modifications to the Commission's
recommendations. The Council can not adopt the amendments until 60 days
after they were sent to the State Department of Community, Trade & Economic
Development, which occurred on September 23, 1999 (RCW 36.70A.1061WAC
365 -195 -620). Additionally, the amendments have to be adopted prior to or along
with the budget (WCC 20.10.040). Therefore, it appears that the request should
be voted on at the Council's November 23, 1999 meeting.
Distribution Request
Indicate those who should receive a copy after Council action.
List specific names to the right.
ADS Facilities Management
ADS Finance
ADS Human Resources
ADS Info Services
Assessor
Auditor
Cooperative Extension
Court
Executive
Health
H
Health
Hearing Examiner
Michael Bobbink
jail
COUNCIL ACTION TAKEN:
1999 - 412 10/26/99: Introduced
11/9/99: Adopted 7 -0, Ord. #99 -070
Related File Numbers: AB99 -074
Juvenile
Parks
Planning
Michael T. Knapp
Prosecutor
Public Works
Sheriff
Superior Court
Treasurer
Other
Ordinance or Resolution Number
(this item):
I:Planning \Rezone \Comp.99Wgenda Bills \CMP99- 00004.doc
File Ref: CMP99 -00004 SPONSORED BY: Consent
11 -9 -99 PROPOSED BY: Planning. & Development Services
INTRODUCTION DATE:
ORDINANCE NO. 99 -070
AMENDING THE WHATCOM COUNTY
COMPREHENSIVE PLAN TEXT AND TITLE 20 ZONING TEXT REGARDING
ADULT ENTERTAINMENT
WHEREAS, The Whatcom County Council passed Resolution 99 -012 on March 23, 1999
initiating 13 Comprehensive Plan amendments, and related amendments to the Official Whatcom
County Zoning Ordinance (Title 20), for review in 1999; and
WHEREAS, One of the proposed amendments is a request to amend the Comprehensive
Plan and Zoning Ordinance to establish policies and regulations governing the location of adult
entertainment businesses in unincorporated Whatcom County; and
WHEREAS, The Deputy SEPA Official for Whatcom County issued a determination of
non - significance on November 20, 1998; and
WHEREAS, Pursuant to RCW 36.70.390 and RCW 36.70.590, legal notice was published
in the. Bellingham Herald on June 27, 1999; and
WHEREAS, The Planning Commission held a public hearing on the subject amendment on
July 8, 1999 and considered all testimony;
WHEREAS, The Planning Commission held a work session on October 14, 1999 to consider
all the amendments concurrently, as required by WCC 20.10.100, WCC 20.90.070, and WCC
20.90.040; and
WHEREAS, The Planning Commission evaluated the merits of each amendment in
relationship to the County Wide Planning Policies and the goals, policies and objectives of the
Comprehensive Plan, as required by WCC 20.10.100 and WCC 20.90.070; and
WHEREAS, The Planning Commission issued Findings of Fact & Reasons for Actions,
Conclusions and Recommendations on the amendments; and
WHEREAS, the County Council has considered the Planning Commission's Findings of
Fact & Reasons for Action, Conclusions, and Recommendations for all the amendments, as
required by WCC 20. 10.110 and WCC 20.90.080; :and
WHEREAS, the County Council has considered all the amendments concurrently so that
the cumulative effect of the various proposals can be ascertained, as required by the Growth
Management Act (RCW 36.70A.130) and WCC 20.10.010; and
, WHEREAS, the County Council finds that the Comprehensive Plan amendments
recommended by the Planning Commission conform to the Growth Management Act and that the
amendments to the Official Whatcom County Zoning Ordinance recommended by the Planning
Commission are consistent with and implement the Comprehensive Plan; and
WHEREAS, the County Council finds the Comprehensive Plan and zoning amendments
in the best interest of the public health, safety, and welfare, based on the following findings and
conclusions:
FINDINGS
1. On October 13, 1998, the Whatcom County Council adopted Emergency Ordinance No.
987070 directing the County to review Comprehensive Plan policies and zoning
regulations relating to adult businesses. The ordinance also established a moratorium
preventing the County from issuing any permits for adult businesses for sixty days.
2. On December 8, 1998, the Whatcom Council adopted Ordinance No. 98 -086 directing the
County to review Comprehensive Plan policies and zoning regulations relating to adult
businesses. The ordinance also established a moratorium preventing the County from
issuing any permits for adult businesses until specific Comprehensive Plan and zoning
amendments have been enacted in approximately November of 1999.
3. Notice that Emergency Ordinance 98 -070 was adopted was published in the Bellingham
Herald on October 17, 1998.
4. Notice of a hearing on Ordinance 98 -086 was published in the Bellingham Herald on
November 28, 1998.
5. Notice that Ordinance 98 -086 was adopted was published in the Bellingham Herald on
December 12, 1998.
6. Notice that the subject amendment had been "initiated" for further evaluation was
published in the Bellingham Herald on April 8, 1999.
7. Notice of the hearing for the subject amendment was published in the Bellingham Herald
on June 27, 1999.
8. A public hearing was held on the subject amendment on July 8, 1999.
9. A Determination of Non - significance was issued under the State Environmental Policy
Act (SEPA) on November 20, 1998. The SEPA Official reaffirmed this determination of
non- significance on July 1, 1999.
10. The goals and policies of the Whatcom County Comprehensive Plan include protecting
the qualities that make the County a desirable place to live .(Goal 2A), retaining rural
character in Whatcom County (Goal 2CC), enhancing the community's overall quality of
life (Goal 7G), and ensuring a sense of community (Goal 10A). The text of the
Comprehensive Plan also indicates that "Gateways, corridors, and connections are
important as we pass from one identified place to another. The act of entering or leaving
is an essential element in establishing the sense of place ..." (p. 10 -1). The
Comprehensive Plan indicates that the County should recognize the opportunities and
problems, including those associated with commercial signs, which impact gateways,
corridors, and connections such as Interstate 5. It recognizes human gateways as well as .
natural gateways (p. 10 -7).
2'
11. The Urban Fringe Subarea Plan indicates that the "Airport Gateway /Operations Area,"
which includes the Bellingham International Airport and the Light Impact Industrial zone
immediately to the southeast, is a "gateway to Bellingham" (see pp. 49 and Map 4).
Additionally, the Urban Fringe Subarea Plan indicates that the visual impression from
Interstate -5 is an important consideration affecting development in several areas (pp. 51,
53, 54, and 55).
12. Since the Whatcom County Comprehensive Plan was adopted in May of 1997, Whatcom
County has reviewed studies and information from other jurisdictions relating to adult
businesses. These studies and information, which are in the record, indicate that adult
businesses have negative secondary effects upon communities including increased crime
(especially sexual crimes), exposure of minors to illegal activities, decreased residential
property values, decreased commercial property values, and higher turnover rates in
commercial and residential areas. Additionally, adult businesses and associated signs can
negatively impact the character of the community and perceptions about the community.
These secondary effects increase when adult businesses concentrate together.
13. Regulating the location of adult businesses and associated signs is reasonable in order to
address documented negative secondary effects of such businesses. Siting adult
businesses in the Light Impact Industrial Zone will minimize adverse secondary impacts
to residential and commercial areas. However, Bellingham International Airport functions
as a gateway to the community. Prohibiting adult businesses in the Light Impact
Industrial area southeast of the Bellingham International Airport will protect the character
of this gateway. Buffers between adult businesses and schools, day cares, churches, parks,
libraries, residential and rural zoning districts, Interstate 5, and State highways will
reduce the negative secondary effects upon such areas and the community as a whole.
Directing adult businesses to City Urban Growth Areas will preserve the character of
rural areas of Whatcom County. Additionally, Urban Growth Areas are typically closer to
law enforcement services, which is important because one of the documented secondary
effects associated with adult businesses is increased crime. Providing a buffer between
an adult business and other adult businesses will reduce impacts to the community that
occur when such uses are located in close proximity to each other..
14. The subject proposal would leave approximately 311 acres of industrially zoned land
open to adult businesses in unincorporated Whatcom County. This constitutes
approximately 2.6 % of the total commercial and industrial zoned land in the
unincorporated portion of Whatcom County.
15. Adult businesses exist and are permitted by zoning in cities within Whatcom County.
Specifically, adult businesses are allowed in certain Planned Industrial zones within the
City of Bellingham (the Urban Fringe Subarea Plan indicates that the City's Planned
Industrial zoning is comparable to the County's Light Impact Industrial zoning). Adult
businesses are allowed in the manufacturing zone within the City of Ferndale.
Additionally, adult businesses are allowed in commercial or business zones in the Cities
of Blaine, Everson, Lynden, and Sumas.
CONCLUSIONS
1. The subject amendment is consistent with the Whatcom County Comprehensive. Plan's
goals and policies that seek to make Whatcom County a desirable place to live, preserve
rural character, enhance the quality of life, and ensure a sense of community.
2. Studies from other jurisdictions document the secondary effects of adult businesses and
associated signs, which include increased crime (especially sexual crimes), exposure of
minors to illegal activities, decreased residential property values, decreased commercial
property values, higher turnover rates in commercial and residential areas, and alteration
of the character of communities.
3. The subject amendment addresses the documented secondary effects of adult businesses
by establishing policies and regulations that govern the location of adult businesses.
These policies and regulations are intended to avoid or minimize documented secondary
effects of adult businesses on other land uses and the community. Therefore, the
amendment serves a substantial government interest.
4. The subject amendment makes approximately 311 acres open for adult businesses in
unincorporated Whatcom County. These areas provide reasonable avenues of
communication for adult businesses.
NOW, THEREFORE, BE IT ORDAINED by the Whatcom County Council that:
Section 1. The text of the Whatcom County Comprehensive Plan is hereby amended as shown
on Exhibit 1.
Section 2. The text of the Official Whatcom County Zoning Ordinance (Title 20) is
hereby amended as shown on Exhibit 2.
Section 3. Adjudication of invalidity of any of the sections, clauses, or provisions of this
Ordinance shall not affect or impair the validity of the Ordinance as a whole or any part thereof
other than the part so declared to be invalid.
ADOPTED this 9 day of NOVEMBER 1999.
WHATCOM COUNTY COUNCIL
WHATCOM COUP NTY, WASHINGTON
Dana Brown - Davis, Counci Clerk Mar ene Dawson, Chairperson
;APPRVED as to form:
ivil Deputy Prosecutor
4
Approved () Denied
Pete Kremen, Executive
Date: A/0/ I. ff
Exhibit I
Add a new section to Chapter 2 of the Whatcom County Comprehensive Plan:
ADULT BUSINESSES - INTRODUCTION
Purpose
The purpose of the adult business section is to prevent crime, protect residential areas and
sensitive uses from incompatible uses, protect retail trade, maintain property values, preserve the
quality of life in Whatcom Cog=, protect gateways, corridors and connections in the
communit y, preserve rural character, and protect children from increased hazards created by
adult businesses.
Process
Because of adverse secondary effects of adult businesses, the County Council established a year-
long moratorium in 1998 on acceptin new ew applications until appropriate policies and regulations
could be established governing adult businesses. Whatcom County Planning Division staff
originally drafted this section in response to the moratorium. It was reviewed with a
representative of the Whatcom County Prosecuting Attorney's office with regard to
Constitutional issues. The Planning Commission held a public hearing before final adoption by
the County Council,
GNU Requirements
The GMA does not require a Comprehensive Plan to address adult businesses. However, a
County is authorized to plan for land use in general (RCW 36.70A.070). Additionally
Comprehensive Plan can include any elements relating � physical development within its
jurisdiction (RCW 36.70A.080).
ADULT BUSINESSES - BACKGROUND SUMMARY
Whatcom County provides an outstanding_ quality of life that is worthy of preserving for future
generations. This quality of life is partially dependent upon controlling crime, protecting
residential areas, protecting businesses, preserving rural character and maintaining property
values. Adult businesses can adversely impact the quality of life and, therefore, Whatcom
County should regulate where such uses are allowed.
ADULT BUSINESSES - ISSUES, GOALS AND POLICIES
Location of Adult Entertainment Establishments
Adult businesses have been shown to create adverse secondary effects upon the community in
the form of crime, harming other forms of retail trade, impacting pro gm values, and causing
deterioration in the quality of life. Such secondary effects can intensify when adult businesses
are located in close proximity to one another. Regulating the location of adult businesses is
.necessary in unincorporated Whatcom County in order to protect the quality of life and minimize
adverse secondary impacts of such businesses.
GOAL 2AAA: Establish Criteria for the Location of Adult Businesses
Policv 2AAA -1: Adult businesses will be allowed with conditional use hermits in Liizht
Impact Industrial zoning_ districts that are located within Ci , Urban
Growth Areas. Adult businesses will not be allowed in the Light !Mac
Industrial zone immediately southeast of the Bellingham International
Airport because, as the main entrance to the airport, it serves as a atg eway
to the community.
Policy 2AAA -2: Adult businesses will not be allowed in other zoning districts.
Policy 2AAA -3 Adult businesses will not be allowed within 1,000' of a school, daycare,
church, park, library, residential zoning district, rural zoning district,
Interstate -5 or State highway.
Policy AAA -4 An adult business will not be allowed within 1,000' of any other adult
business.
Policy 2AAA -5 Nonconforming adult businesses will be terminated within one year of the
adoption of this amendment. A maximum of four one -year extensions may
be granted if needed to recoup financial expenditures made in the business.
Exhibit 2
Amend the Urban Residential (UR) District of Title 20 as follows:
20.20.200 Prohibited uses.
.201 All other uses.
.202 Adult businesses.
Amend the Urban Residential — Medium Density (URM) District of Title 20 as follows:
20.22.200 Prohibited uses.
.201 All other uses.
.202 Adult businesses.
Amend the Urban Residential Mixed (UR MA9 District of Title 20 as follows:
20.24.200 Prohibited uses.
.201 All other uses.
.202 Adult businesses.
Amend the Residential Rural (RR) District of Title 20 as follows:
20.32.2 00 Prohibited uses.
.201 All other uses.
.202 Adult businesses.
Amend the Rural Residential - Island (RR -I) District of Title 20 as follows:
20.34.200 Prohibited uses.
.201 All other uses.
.202 Adult businesses.
7
Amend the Eliza Island (EI) District of Title 20 as follows:
20.35.200 Prohibited uses.
.202 Adult businesses.
.205202 Storage or occupation of recreational vehicles
Amend the Rural (R) District of Title 20 as follows:
20.36.200 Prohibited uses.
.201 All other uses.
.202 Adult businesses.
Amend the Agriculture (AG) District of Title 20 as follows:
20.40.200 Prohibited uses.
.201 All other uses.
.202 Adult businesses.
Amend the Rural Forestry (RF) District of Title 20 as follows:
20.42.200 Prohibited uses.
.201 All other uses.
.202 Adult businesses.
Amend the Commercial Forestry (CF) District of Title 20 as follows:
20.43.200 Prohibited uses.
.201 All other uses..
.202 Adult businesses.
s
Amend the Recreation and Open Space (ROS) District of Title 20 as follows:
20.44.200 Prohibited uses.
.201 All other uses.
.202 Adult businesses.
Amend the Neighborhood Commercial (NC) District of Title 20 as follows:
20.60.200 Prohibited uses.
.201 All other uses.
.202 Adult businesses.
Amend the Small Town Commercial (STC) District of Title 20 as follows:
20.61.250 Prohibited uses.
.251 All other uses.
.252 Adult businesses.
Amend the General Commercial (GC) District of Title 20 as follows:
20.62.200 Prohibited uses.
.201 All other uses.
.202 Adult businesses.
Amend the Tourist Commercial (TC) District of Title 20 as follows:
20.63.200 Prohibited uses.
.201 All other uses.
.202 Adult businesses.
9
Amend the Resort Commercial (RC) District of Title 20 as follows:
20.64.200 Prohibited uses.
.201 All other uses.
.202 Adult businesses.
Amend the Gateway Industrial (GI) District of Title 20 as follows:
20.65.200 Prohibited uses.
.201 All other uses.
.202 Adult businesses.
Amend the Light Impact Industrial (LII) District of Title 20 as follows:
20.66.010 Purpose.
The purpose of this district is to implement the
Comprehensive Plan by providing for the planned development of large land areas, in
appropriate locations, exeltisively primarily for industrial and subordinate uses which provide
support services to the district. Light industrial uses are primarily related to services, and
distribution, manufacture and assembly of finished products that have a relatively light impact on
adjacent uses and districts. Furthermore, it is the purpose of this district to encourage the master
planning of the entire industrial site in ensuring compatibility between industrial operations, as
well as the existing and future character of adjacent areas. It is also a purpose of the district to
accommodate limited commercial uses that are incompatible with other commercial uses.
10
em PRO--M
MOVIE
Amend the Gateway Industrial (GI) District of Title 20 as follows:
20.65.200 Prohibited uses.
.201 All other uses.
.202 Adult businesses.
Amend the Light Impact Industrial (LII) District of Title 20 as follows:
20.66.010 Purpose.
The purpose of this district is to implement the
Comprehensive Plan by providing for the planned development of large land areas, in
appropriate locations, exeltisively primarily for industrial and subordinate uses which provide
support services to the district. Light industrial uses are primarily related to services, and
distribution, manufacture and assembly of finished products that have a relatively light impact on
adjacent uses and districts. Furthermore, it is the purpose of this district to encourage the master
planning of the entire industrial site in ensuring compatibility between industrial operations, as
well as the existing and future character of adjacent areas. It is also a purpose of the district to
accommodate limited commercial uses that are incompatible with other commercial uses.
10
Conditional Uses 20.66.150
.157 An adult business enclosed within a building, when located in a City's Urban Growth
Area, provided that:
(1) The building; that contains the adult business and signs relating to the business are not
within 1000' of any of the following:
(a) The outside boundW of any parcel that already
contains a public school, private.
school, or daycare;
fib) The outside boundsrS of any parcel that already
contains a church or other house
of worship:
(c) An existing` public park;
(d) The outside boundary of any parcel that already
contains a public library;
(e) A residential or rural zoning district (including
Urban Residential, Urban
Residential Medium Density, Urban Residential- Mixed, Residential Rural, Rural
one dwelling/two acres, Rural one dwelling/five acres, and Rural one dwellin ten
acres and residential zones within Ci , limits):
�fl Interstate 5 or a State hig•hwgy, or
(g) The outside boundary of any parcel that already
contains another adult business.
(2) Directional signs permitted under WCC 20.80.470 are not subject to the 1,000'
buffer of subsection (1).
(3) Adult businesses are prohibited within the Lip-ht impact Industrial zone located
southeast of the Bellingham International Airport shown on Map 4 of the Urban
Fringe Subarea Plan.
(4) An adult business shall not sell, provide or allow performances, films,
publications, or other activities that are prohibited by state law or County
ordinance.
20.66.200 Prohibited uses.
.201 All other uses.
.202 Adult businesses except those allowed as a conditional use under WCC 20.66.157.
Amend the General Manufacturing (GM) District of Title 20 as follows:
20.67.200 Prohibited uses.
.201 All other uses.
.202 Adult businesses.
11
Amend the Heavy Impact Industrial (HII) District of Title 20 as follows:
20.68.200 Prohibited uses.
.201 All other uses.
.202 Adult businesses.
.2032W In the Urban fringe subarea the following uses are prohibited: petroleum refinery and the
manufacturing of products thereof, manufacturing and processing of rubber, plastics, chemical,
paper, asbestos and products derived thereof; and primary metal industries.
Amend the Airport Operations (AO) District of Title 20 as follows:
20.70.200 Prohibited uses.
.202 Adult businesses.
.204 Any use which could create a hazard or endanger the landing, takeoff, or
maneuvering of aircraft.
Amend the sign section of the Supplementary Requirements chapter of Title 20 as follows:
20.80.410 Signs - General provisions - Applicable to all districts.
(1) No sign or any portion of a sign shall be located on or over public property, such as .
road rights -of -way and easements, transmission line corridors or utility easements.
Standard building height limits and setbacks shall apply to all signs unless otherwise
provided elsewhere in this title or in other county codes or regulations including the
county's shoreline management program and the Point Roberts Character Plan. All
freestanding signs advertising on- premises operations may be located within required
landscaping areas, except that no such sign shall be closer than 10 feet to the road
right -of -way. This distance shall be increased if it can be shown to present a traffic
hazard.
(2) On- premises signs meeting the requirements of WCC 20.80.420. to 20.80.460 are
permitted. Other than exempt signs under WCC 20.80.470, all other signs in the
Recreation and Open Space District are prohibited and all other signs in other districts
conditionally permitted subject to meeting the requirements of WCC 20.84.200.
(3) Off - premises advertising signs are prohibited in all districts except adjacent to arterial
roads or Interstate 5 in General Commercial or Industrial Districts where they require
a conditional use permit. Maximum sign size shall be 288 square feet and not more
than 25 feet high. Minimum separation between off - premises advertising signs shall
be a 500 -foot radius. All off - premises advertising signs shall meet the setback
12
requirements found in WCC 20.80.215. Off - premises signs may be back to back only;
no V -type signs are allowed. Off - premises signs may display at most two
advertisements per side. The number of off - premises advertising signs within the
county shall not exceed 18, which is the total of existing off - premises advertising sign
structures that as of April 30, 1990 (a) had a county conditional use permit and (b)
those facing Interstate 5 within Commercial or Industrial Districts with a valid state
permit. Permit holders for the existing 18 signs may replace any sign they remove
with a new sign subject to obtaining conditional use approval for the new sign. By no
later than April 30, 1996, all conforming off - premises advertising signs which
became nonconforming as a result of new regulations adopted the 7th day of August,
1990, shall meet all requirements of said regulations or be abated; provided that, those
signs holding valid conditional use permits need not conform to the setback from
residence requirement of WCC 20.80.215(4).
(4) Signs shall'not depict or describe "specified sexual activities" or "specified
anatomical areas" as defined in WCC 20.97.008.
Amend the Nonconforming Uses and Parcels chapter of Title 20 as follows:
20.83.015 Termination of Nonconforming Adult Businesses
Nonconforming adult businesses shall terminate within one year from the date that the use
became nonconforming, except that the Hearing Examiner may approve up to four additional one
year extensions, provided that:
(1) An application is submitted by the owner or operator of such business to the Whatcom
County Planning & Development Services Department at least 120 days prior to the date that
such business must terminate: and
(2) The Hearing Examiner shall find, in connection with such adult business, that:
(a) The applicant had made, prior to the use becoming nonconforming, substantial financial
expenditures related to the adult business: and
(b) The applicant has not recovered, through sales, depreciation or other tax benefits, a
reasonable portion of the financial expenditures related to the adult business that were
made prior to the use becoming nonconforming; and
(c) The applicant could not recover, through sales, depreciation or other tax benefits, a .
reasonable portion of the financial expenditures by converting the nonconforming
business to a use that is permitted or allowed as a conditional use in the zoning district;
and
(d) The period for which such adult business may be permitted to continue is the minimum
period sufficient for the applicant to recover, through sales, depreciation or other tax
13
benefits, a reasonable portion of the financial expenditures incurred related to the adult
business, but in no case shall exceed one additional year at a time, and
(e) The economic hardship to the applicant is found to outwei h�the public benefit to be
gained by termination of the nonconforming use.
For the purpose of this section, "financial expenditures" shall mean the capital outlays made by
the applicant to establish the adult business, exclusive of the fair market value of the building in
which the use is located and exclusive of any improvements unrelated to the nonconforming
adult business. "Financial expenditures" shall not include improvements to the building for
which all required permits were not obtained. "Financial expenditures" shall not include
materials for sale or rent that could be moved to another legal site and placed for sale or rent at
that site.
20.83.020 Expansion of nonconforming use.
Nonconforming uses may be extended throughout any building partially occupied by such use at
the time of passage of this ordinance, except for nonconforming adult businesses, which shall not
be extended to other parts of the building. The expansion of a nonconforming use by addition or
enlargement shall be conditionally permitted, except for nonconforming adult businesses, which
shall not be expanded. The expansion must be on the parcel as it existed at the time the use
became nonconforming and the use shall not expand on adjacent parcel(s). The expansion shall
be approved if it is consistent with the applicable zoning regulations except the use restrictions
and complies with WCC 20.84.220(2) to (8).
20.83.040 Change to another nonconforming use.
The change of a nonconforming use to another type of a nonconforming use shall be
conditionally permitted, except that a nonconforming use shall not be changed to an adult
business. The change of nonconforming use shall be approved if it is consistent with the
applicable zoning regulations, except the use restrictions, and complies with WCC 20.84.220(2)
to (8), providing such change does not require the provision of water and sewer utility services at
a level greater than that currently available to the subject property, and that the new
nonconforming use does not result in greater impacts upon surrounding properties than did the
original nonconforming use.
Amend the Hearing Examiner chapter of Title 20 as follows:
20.92.210 Final decisions.
The hearing examiner shall conduct open record hearings and prepare a record thereof, and make
a final decision upon the following matters:
(1) Appeals from the decision of the administrative official or technical committee as set
forth in WCC 21.28.040 for short plats.
(2) Appeals from any orders, requirements, permit, decision or determination made by an
administrative official in the administration of this ordinance or the subdivision ordinance,
exclusive of long plat design and processing requirements.
(3) Appeals from a decision of the administrator of the Shoreline Management Program.
14
(4) Applications for zoning ordinance conditional use permits.
(5) Applications for variances from the terms of the zoning ordinance.
(6) Applications for shoreline management substantial project permits when no open
record hearing is required.
(7) Applications for variances from the terms of the Whatcom County Shoreline
Management Program.
(8) Applications for Shoreline Management Program conditional use permits.
(9) Applications for flood damage prevention variances.
(10) Appeals from SEPA determinations of significance, of nonsignificance, and
mitigated determinations of nonsignificance.
(11) Preliminary plats of proposed subdivisions including subdivision variances for
subdivisions of five or more lots.
(12) Application for variances from the provisions of WCC Title 22.
(13) Revocation proceedings involving previously approved zoning conditional use
permits, shoreline management substantial project permits and shoreline conditional use permits.
(14) Applications to continue operations of nonconforming adult businesses pursuant to
WCC 20.83.015.
Amend the Definitions chapter of Title 20 as follows:
20.97.008 Adult Business
An "adult business" is a commercial establishment where a "substantial portion" of the
establishment includes an adult bookstore, adult eating or drinking establishment, adult theater,
or other adult commercial establishment, or any combination thereof, as defined below:
(1) An "adult bookstore" is a store that has as a "substantial portion" of its stock -in -trade any
one or more of the following:
(a) Books, magazines, periodicals or other printed matter that are characterized by an
emphasis upon the depiction or description of "specified sexual activities" or
"specified anatomical areas," or
(bl Photogrraphs, films, motion pictures, videocassettes, slides or other visual
representations that are characterized by an emphasis upon the depiction or
description of "specified sexual activities' or "specified anatomical areas."
(2) An "adult eating or drinking establishment" is an eating or drinking establishment that
regularly features any one or more of the following_:
(a) Live performances that are characterized by an emphasis on "specified anatomical
areas" or "specified sexual activities," or
(b) Films, motion pictures, videocassettes, slides or other photographic reproductions that
are characterized by an emphasis upon the depiction or description of "s ecp ified
sexual activities" or "specified anatomical areas," or
15
(c) m ployees who, as part of their employment, re ug larly expose to patrons "specified
anatomical areas."
Adult eating or drinking establishments are not customarily open to the general public
during such features because they exclude minors by reason of age.
(3) An "adult theater" is a theater that regularly features or allows viewing of one or more of
the following:
(a) Films, motion pictures, videocassettes, slides or similar photographic reproductions
characterized by an emphasis on the depiction or description of "specified sexual
activities" or "specified anatomical areas:" or
(b Live performances characterized by an emphasis on "specified anatomical areas" or
"specified sexual activities."
Adult theaters are not customarily pen to the e�public during such features or
viewing because they exclude minors by reason of age_
An adult theater shall include commercial establishments where such materials or
performances are viewed from individual enclosures.
(4) An "other adult commercial establishment' ' is a facility that features employees who as
part of their employment, regularly expose to patrons "specified anatomical areas" and
that is not customarily open to the enteral public during such features because it excludes
minors by reason of age.
"Specified sexual activities" are: (1 ) human genitals in a state of sexual stimulation or arousal:
(2) actual or simulated acts of human masturbation, sexual intercourse or sodomy: or (3) fondling
or other erotic touching of human genitals, pubic region, buttock, anus or female breast.
"Specified anatomical areas" are: (1) less than completely and opaquely concealed human
genitals, pubic region, human buttock, anus, .or female breast below a point immediately above
the top of the areola, or (2) human male genitals in a discernibly turgid state, even if completely
and opaquely concealed.
For the puraose of determining whether a "substantial portion" of an establishment includes an
adult bookstore, adult eating or drinking establishment, adult theater, or other adult commercial
establishment, or combination thereof, the following factors shall be considered: (1) the amount
of floor area accessible to customers and allocated to such uses: (2) the amount of floor area
accessible to customers and allocated to such uses as compared to the total floor area accessible
to customers in the establishment: and (3) whether the establishment advertises or is promoted as
an adult business.
16
For the purpose of determining whether a bookstore has a "substantial portion" of its stock in
materials defined in paragraphs (1)(a) or (1)(2) hereof, the following factors shall be considered:
(1) the amount of such stock accessible to customers as compared to the total stock accessible to
customers in the establishment: and (2) the amount of floor area accessible to customers
containing such stock: (3) the amount of floor area accessible to customers containing such stock
as compared to the total floor area accessible to customers in the establishment: and (4 ) whether
the bookstore advertises or is promoted as an adult business.
"Lewd
lewd"
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