Bellingham City Zoning Code
ARTICLE XXII
Adult Uses
§ 240-148 Purpose and intent.
A.
It has been documented in numerous other towns and cities throughout the Commonwealth of Massachusetts and elsewhere in the United States that adult entertainment establishments are distinguishable from other business uses and that the location of adult entertainment uses degrades the quality of life in the areas of a community where they are located. Studies have shown secondary impacts such as increased levels of crime, decreased tax base, and blight resulting from the clustering and concentration of adult entertainment uses. Late night noise and traffic also increase due to the late hours of operation of many of these establishments. This bylaw is enacted pursuant to M.G.L. ch. 40A, § 9, and the Home Rule Amendment to the Massachusetts Constitution with the purpose and intent of regulating and limiting the location of adult entertainment establishments (as defined herein) so as to prevent the secondary effects associated with these establishments, and to protect the health, safety, and general welfare of the present and future inhabitants of the Town of Bellingham.
B.
The provisions of this article have neither the purpose nor intent of imposing a limitation or restriction on the content of any communicative matter or materials, including sexually oriented matter or materials. Similarly, it is not the purpose or intent of this article to restrict or deny access by adults to adult uses and to sexually oriented matter or materials protected by the Constitutions of the United States of America and of the Commonwealth of Massachusetts, nor to restrict or deny rights that distributors or exhibitors of such matter or materials may have to sell, rent, distribute, or exhibit such matter or materials. Neither is it the purpose or intent of this article to legalize the sale, rental, distribution or exhibition of obscene or other illegal matter or materials.
§ 240-149 Definitions.
As used in this article, the following terms shall have the meanings indicated:
An establishment, a building or portion thereof, or a use of land having a substantial or significant portion of its business activity, stock-in-trade, or other matter or materials for sale, rental, distribution or exhibition, which are distinguished or characterized by their emphasis on depicting, describing or relating to sexual conduct or sexual excitement as defined in M.G.L. ch. 272, § 31, including but not limited to the following:
ADULT BOOKSTOREAn establishment having as a substantial or significant portion of its stock-in-trade, books, magazines, and other matter which are distinguished or characterized by their emphasis on depicting, describing or relating to sexual conduct or sexual excitement as defined in M.G.L. ch. 272, § 31;
ADULT CLUBAn establishment having as any of its activities or entertainment a person or persons performing in a state of nudity or distinguished by an emphasis on matter depicting, describing or relating to sexual conduct or sexual excitement as defined in M.G.L. ch. 272, § 31;
ADULT ENTERTAINMENT ESTABLISHMENTAn establishment offering activities or goods or providing services where employees, entertainers or patrons are engaging in nudity, sexual conduct or sexual excitement as defined in M.G.L. ch. 272, § 31;
ADULT MOTION PICTURE THEATERAn establishment used for presenting material distinguished by an emphasis on matter depicting, describing or relating to sexual conduct or sexual excitement as defined in M.G.L. ch. 272, § 31;
ADULT PARAPHERNALIA STOREAn establishment having as a substantial or significant portion of its stock devices, objects, tools or toys which are distinguished or characterized by their association with sexual activity, including sexual conduct or sexual excitement as defined in M.G.L. ch. 272, § 31;
ADULT VIDEO STOREAn establishment having as a substantial or significant portion of its stock-in-trade videos, movies or other film materials which are distinguished or characterized by their emphasis on depicting, describing or relating to sexual conduct or sexual excitement as defined in M.G.L. ch. 272, § 31.
As used in this article shall mean any of the following:
Twenty percent or more of the business inventory or stock of merchandise for sale, rental, distribution or exhibition during any period of time;
Twenty percent or more of the annual number of gross sales, rentals or other business transactions; or
Twenty percent or more of the annual gross business revenue.
§ 240-150 Special permit required; standards and procedures.
No adult use shall be allowed except by a special permit granted by the Planning Board. The Planning Board shall grant a special permit for an adult use in any district permitting such use only if the use is found by the Planning Board to comply with the following standards and procedures:
A.
Location. An adult use may not be located:
(1)
Within 500 feet of a boundary line of a residential zoning district or of a property line of a lot containing a residential use;
(2)
Within 1,000 feet of any structure containing, at the time of special permit application, a church or other religious use, public school, private kindergarten or school, child-care facility, park, playground, any recreational area, public library, cultural facility, museum, elderly housing, assisted living facility, nursing home, or adult day-care facility:
(3)
Within 1,000 feet of any structure containing, at the time of special permit application, an establishment licensed under the provisions of M.G.L. ch. 138, § 12;
(4)
Within 1,000 feet of any structure containing any other adult use;
(5)
Within 200 feet of an interstate highway, arterial street or a street with average daily traffic greater than 2,000 vehicle trips per day.
(6)
So that the building and/or signage associated with an adult use will be visible from an interstate highway, arterial street or a street with average daily traffic greater than 2,000 vehicle trips per day.
B.
Site development standards.
(1)
Development plan review. No special permit for any adult use shall be issued without development plan approval first having been obtained from the Planning Board under § 240-16 hereof.
(2)
Parking and loading. On-site parking and loading shall be provided in accordance with the requirements set forth in Article X of these bylaws as pertains to service establishments.
(3)
Landscaping. At a minimum, the property on which an adult use is proposed to be located shall contain a landscaped buffer strip along its entire perimeter, except that portion directly abutting a public street. Said buffer strip shall have a twelve-foot minimum depth and contain a curb to prevent parking within the strip, a six-foot-high fence which shall be located a maximum of two feet from the abutting lot lines and contain an evergreen hedge on the adult use side of the fence which is to be at least three feet in height at the time of planting and will provide a year-round dense visual screen and attain a height of at least seven feet within five years of planting.
(4)
Signs. All signs for any adult use must meet the requirements of Article VIII hereof. In addition, no portion of an advertisement, display or other promotional material which contains sexually explicit graphics or sexually explicit text shall be visible to the public from any public way, including but not limited to sidewalks, pedestrian walkways, highways, railways, or airways.
C.
Other special permit requirements.
(1)
If the adult use allows for the showing of films or videos within the premises, curtains, doors or screens shall not close off the booths in which the films or videos are viewed. All booths must be able to be clearly seen from the center of the establishment.
(2)
Application requirements. The application for a special permit for an adult use must include the following information:
(a)
Name and address of the owner of record of the property;
(b)
Name and address of the legal owner of the proposed adult use establishment;
(c)
Name and address of all persons having a lawful, equity or security interest in the adult use establishment;
(d)
A sworn statement must be provided stating that neither the applicant, nor the manager, nor any person having a lawful, equity or security interest in the adult use establishment has been convicted of violating the provisions of M.G.L. ch. 119, § 63, or M.G.L. ch. 272, § 28;
(e)
Name and address of the manager of the adult use establishment;
(f)
Proposed provisions for securing the safety of the public within and without the adult use establishment;
(g)
The number of employees; and
(h)
The present and proposed physical layout of the interior of the adult use establishment.
(3)
No special permit for an adult use shall be issued to any person convicted of violating M.G.L. ch. 119, § 63, or M.G.L. ch. 272, § 28.
(4)
An adult use special permit shall only be issued following a public hearing held within 65 days after the filing of an application with the Planning Board, a copy of which shall forthwith be given to the Town Clerk by the applicant.
(5)
Any adult use special permit issued under this bylaw shall lapse within one year if substantial use thereof has not sooner commenced except for good cause or in the case of a permit for construction, if construction has not begun by such date except for good cause; excepting only any time required to pursue or await the determination of an appeal from the grant thereof.
(6)
Any adult use special permit issued under this bylaw shall require that the owner of such adult use shall supply on a continuing basis to the Building Inspector any change in the name of the record owner or address or any change in the name of the current manager; and that failure to comply with this provision shall result in the immediate revocation of such special permit. If anyone so identified is or is found to be convicted of violating M.G.L. ch. 119, § 63, or M.G.L. ch. 272, § 28, such special permit shall immediately be null and void.
(7)
No adult use special permit issued under this bylaw shall become valid or in full force and effect until and unless the owner of the property containing such adult use shall supply to the Building Inspector a notarized statement agreeing to all terms and conditions of said adult use special permit.
§ 240-151 Nonconformity.
A.
Adult use in existence prior to the adoption of this article shall apply for a special permit as specified in this article within 90 days following the adoption of this article and shall be required to comply in all respects with all requirements of this article.
B.
Any adult use in existence prior to the adoption of this article which has applied for such special permit but which has not been granted such special permit may be permitted by a unanimous vote of the Planning Board following a public hearing to continue in operation at its present location for a period of time not exceeding six months following the date of the application for such special permit, provided that a written request therefor is made to the Planning Board.
C.
The Planning Board, upon written application made prior to the expiration of any such period of time and following a public hearing, may grant one additional extension period of time not to exceed six months. The adult use owner must demonstrate undue financial hardship if forced to close immediately upon failure to obtain a special permit to the Planning Board in order to obtain any such extension.
D.
The provisions of this article shall only apply to adult uses as defined in this article which are also defined in M.G.L. ch. 40A, § 9A.
§ 240-152 Invalidity.
In the event that any provision of this article shall be determined invalid by a court of competent jurisdiction or otherwise, the remaining provisions of this article not manifestly inseparable from the invalid provision(s) shall remain in full force and effect.