A.   Purpose. The purpose of this section is to effectuate the gradual elimination of non-conforming structures and uses of land and structures in combination.

   B.   Burden of proof. The party alleging the existence of a legally non-conforming structure or use bears the burden of demonstrating that the structure or use was legally existing at the time of a change in ordinance which rendered the structure or use non-conforming.

   C.   Continuation of non-conforming uses. An illegal non-conforming use may not be permitted to continue and shall be enforced through existing town ordinances. A legal non-conforming use may be continued, but may not be extended, expanded or changed unless to a conforming use, except as permitted by the BZA.

   D.   Enlarging, altering or repairing legal non-conforming structures. A legal non-conforming structure may continue provided that it shall not be enlarged or altered in a manner that increases its non- conformity. A legal non-conforming structure or portion thereof may be altered in order to decrease or eliminate the non-conformity. Nothing in this appendix shall be construed to prohibit the alteration of a legal non-conforming structure when such alteration is required to bring the structure into compliance with the Building Commissioner’s order in the case of a structure determined to be unsafe.

   E.   Repairing or replacing destroyed or removed structures. A legal non-conforming structure or portion of such structure which has been partly or completely destroyed or removed by accidental cause, including fire, flood, explosion, acts of God or any other casualty, may be repaired or replaced; provided:

      1.   The structure cannot be repaired or replaced in a manner which makes the structure legally conforming;

      2.   The owner or agent makes application for a building permit within three months from the date of the destruction or removal and all necessary construction is completed within six months from the date of destruction;

      3.   The replacement structure is placed on the same footprint of the old structure, is not higher that the old structure, retains the same or substantially similar architectural design, is constructed of similar or upgraded materials, all to the extent possible and to the extent permitted by the building code and all applicable regulations; and

      4.   The elevation of the lowest floor, including the basement floor, is two feet above the regulatory flood level and all necessary, applicable permits are obtained by the state’s Department of Natural Resources.

   F.   Abandonment of legal non-conforming use.

      1.   In the event that a legal non-conforming use has ceased for six months or more, there is a rebuttable presumption that the use has been abandoned and may not be resumed without approval of the BZA. The presumption may be rebutted by a showing by the owner or proponent of the use that notice has been placed on file with the Building Commissioner’s office regarding the cessation of the use and the intention to resume the use at a later, definite date.

      2.   In no event shall an owner resume a legal non-conforming use that has ceased for more than one year.

   G.   No application to signs. This section shall not be construed to apply to signs.

(Ord. 2009-17, passed 10-26-2009)

   Accessory uses, buildings and structures such as private garages, tool sheds, fences, retaining walls and landscaping are permitted in all districts in conjunction with a primary use, building or structure provided that they do not change the character of the district in which they are located and that they meet all other requirements of the town code. A private swimming pool may be permitted as an accessory use if it is surrounded by a wall or fence so as to prevent uncontrolled access by children. In addition, the following regulations concerning accessory buildings or uses shall be follows.

   A.   An accessory building or use shall not be erected in any minimum side yard setback or in any front yard.

   B.   All accessory buildings or uses on a lot shall not cumulatively occupy more than 30% of a required rear yard of said lot.

   C.   No detached accessory building shall be located closer than ten feet to any principal building, nor shall it be located closer than five feet to any side or rear lot line. In those instances where the rear lot line is coterminous with an alley right-of-way, the accessory building shall not be closer than five feet to such rear lot line. In no instance shall an accessory building or use be located within a dedicated easement or right-of-way.

   D.   No detached accessory building shall exceed one story or 16 feet in height, except that in the industrial districts accessory buildings may equal the permitted maximum height of structures in said district; provided that, the building or use meets all setback and other requirements of the town code.

   E.   Accessory buildings, structures or uses shall not be constructed prior to the construction of the principal building, structure and use. This means that the first building or structure placed upon a lot shall be considered a principal building or structure and all additional buildings shall be considered principal structures unless they qualify as accessory buildings, as defined in this appendix, and governed by all regulations concerning same.

   There shall be provided in all districts, except the B-1 Business District, at the time of erection or enlargement of any principal structure, off-street parking spaces for automobiles with adequate access to all spaces. The number of off-street parking spaces, in conjunction with all land or building uses, shall be provided, prior to the issuance of a certificate of occupancy as hereinafter prescribed. All spaces required under this section must be located totally off of the street right-of-way. Any spaces located on the street right-of-way will not count towards parking spaces required under this section.

 

   A.   Off-street marking space requirements.

      1.   Off-street parking spaces may be located within required side and rear yard setbacks; provided that, in any business or industrial district that abuts a residential district directly or across the street there shall be maintained a minimum unobstructed and landscaped setback of 20 feet between the nearest point of the off-street parking area, exclusive of access driveways and the property line abutting a residential district. In any business or industrial district shall be maintained a minimum unobstructed and landscaped setback of ten feet between the nearest point of the off-street parking area, exclusive of access driveways and any street right-of-way as indicated on the Thoroughfare Plan.

      2.   Off-street parking for other than residential use shall be either on the same lot or within 300 feet of the building in which it is intended to serve, measured from the nearest point of the building to the nearest point of the off-street parking lot. Ownership shall be shown on all lots or parcels intended for use as parking by the applicant.

      3.   Required residential off-street parking spaces shall consist of a parking strip, parking bay, driveway, garage or combination thereof and shall be located on the premises they are intended to serve.

      4.   Any area once designated as required off-street parking shall not be changed to any other use unless and until equal facilities are approved elsewhere by the Building Commissioner.

      5.   Off-street parking existing at the effective date of this appendix in connection with the operation of an existing building or use shall not be reduced to an amount less than hereinafter required for a similar new building or new use.

      6.   Two or more buildings or uses may collectively provide the required off-street parking in which case the required number of parking spaces shall not be less than the sum of the requirements for the several individual uses computed separately.

      7.   The storage of merchandise is prohibited on off-street parking spaces.

      8.   For those uses not specifically mentioned, the requirements for off-street parking facilities shall be in accord with a use similar in type as determined by the Building Commissioner.

      9.   When units or measurements determining the number of required parking spaces result in the requirements of a fractional space, any fraction up to and including one-half shall require one parking space.

   B.   Off-street parking space layout, standards, construction and maintenance. Whenever the off-street parking requirements require the building of an off-street parking facility, such off-street parking lot shall be laid out, constructed and maintained in accordance with the following standards and regulations.

      1.   No parking lot shall be constructed unless and until a permit is hereafter issued by the Building Commissioner. Applications for permit shall be submitted to the Building Department in such form as may be determined with two sets of site plans for the development and construction of the parking lot showing that the provisions of this appendix will be fully complied with. Such permit may be combined with permits for principal structures.

      2.   Plan for layout of off-street parking facilities shall be in accord with following minimum requirements:

 

 

      3.   All spaces shall be provided adequate access by means of maneuvering lanes. Backing directly onto a street shall be prohibited. This section shall not apply to one- or two-family residential unit’s off-street parking.

      4.   Adequate ingress and egress to the parking lot by means of clearly limited and defined drives shall be provided for all vehicles. Ingress and egress to a parking lot lying in an area zoned for other than single-family residential use shall not be across land zoned for single-family residential use.

      5.   All maneuvering lane widths shall permit one-way traffic movements except that a 90- degree pattern may permit two-way traffic.

      6.   Each entrance and exit to and from any off-street parking lot located in an area zoned for other than single-family residential use shall be at least 25 feet distant from adjacent property located in any single family residential district.

      7.   Where the off-street parking area borders on any residential (R-1, R-2, R-3) district, a screening wall shall be erected with a minimum height of six feet so as to ensure that the contents of the off-street parking area are screened from the view of the adjoining residentially zoned district. The screening wall required by this section shall be by plantings that do not lose their foliage in winter months so that the screening provided is on a year-round basis. In the event plantings cannot be accomplished in the specific area, a combination of plantings, fencing or masonry screening walls or partitions will be acceptable so long as the intent of this section is fully complied with.

      8.   The entire parking area, including parking spaces and maneuvering lanes, required under this appendix, shall be provided with asphalt or concrete surfacing in accordance with specifications approved by the Street Commissioner. The parking area shall be surfaced within one year from the date the occupancy permit is issued. Off-street parking areas shall be drained so as to dispose of all surface water accumulated in the parking area in such a way as to preclude drainage of water onto adjacent property or towards buildings.

      9.   All lighting used to illuminate any off-street parking area shall be so installed as to be confined within and directed onto the parking area only.

      10.   In all cases where a wall extends to an alley, which is a means of ingress and egress to an off-street parking area, it shall be permissible to end the wall not more than ten feet from access to the parking area.

      11.   No parking lot or part thereof shall cause interference with or obstruct the view of traffic, a traffic sign or traffic signal.

      12.   Drainage and runoff calculations must be submitted for review before obtaining a building permit to construct a parking lot.

      13.   Additional parking lot requirements are delineated in §§ 803 and 804.

   C.   Off-street loading and unloading. On the same premises with every building, structure or part thereof, involving the receipt or distribution of vehicles, materials or merchandise, there shall be provided and maintained on the lot adequate space for standing, loading and unloading in order to avoid undue interference with public use of dedicated rights-of-way. Such space shall be provided as follows.

      1.   Within an industrial district, all spaces shall be laid out in the dimension of at least ten feet by 50 feet, or 500 square feet in area, with a clearance of at least 14 feet in height. Loading dock approaches shall be provided with a pavement having an asphalt or portland cement binder so as to provide a permanent, durable and dustless surface. All spaces in I-1 and I-2 Districts shall be provided in the following ratio of spaces to floor area:

 

 

      2.   All loading and unloading in an industrial district shall be provided off-street in the rear yard or interior side yard, and shall in no instance be permitted in the front yard. In those instances where exterior side yards have a common relationship with an industrial district across a public thoroughfare, loading and unloading may take place on said exterior side when setback is equal to at least 50 feet.

   A.   Temporary structures used in conjunction with construction work, seasonal sales or emergencies may be permitted by the Building Commissioner, if the proposed site is acceptable and neighboring uses are not adversely affected. They shall be removed promptly when their function has been fulfilled. Permits for temporary structures may be issued for a period up to 24 months.

   B.   Residing in basement or foundation structures shall not be permitted.

   Home occupations, as defined in Article II of this appendix, shall be subject to the following requirements.

   A.   The principal use of the structure or dwelling unit shall remain residential and the operator of the home occupation shall reside in the dwelling unit.

   B.   No more traffic shall be generated by a home occupation than would be normally be expected in a residential neighborhood.

   C.   No equipment or process shall be used in such home occupation which creates noise, vibrations, glare, fumes, odors or electrical interference detectable to the normal senses which can be detected off the premises.

   D.   In case of electrical interference, no equipment or process shall be used which creates visual or audible interference in any radio or television receivers off the premises, or causes fluctuations in line voltage off the premises.

   Every building which requires the receipt or distribution by vehicles of material or merchandise shall provide off-street loading berths of a size and arrangement appropriate for the types of vehicles utilizing this space. In no case will loading or unloading be permitted within public rights-of-way.

   All uses established or placed into operation after the effective date of this appendix shall comply with the following performance standards in the interests of protecting the public health, safety and welfare and lessen injury to property. No use in existence on the effective date of the ordinance shall be so altered or modified to conflict with those standards.

   A.   Fire protection. Firefighting equipment and prevention measures acceptable to the town’s Fire Department shall be readily available and apparent when any activity involving the handling or storage of flammable or explosive materials is conducted.

   B.   Electrical disturbance. No use shall cause electrical disturbance adversely affecting radio, television or other equipment in the vicinity.

   C.   Noise. No use shall produce noise in such a manner as to be objectionable because of volume, frequency, intermittence, beat, shrillness or vibration. Said noise shall be muffled or otherwise controlled so as not to become detrimental; provided, however, public safety sirens and related apparatus used solely for public purposes shall be exempt from this standard.

   D.   Vibration. No use shall cause vibrations or concussions detectable beyond the lot lines without the aid of instruments.

   E.   Odor. No use shall emit across the lot lines malodorous gas or matter in such quantity as to be readily detectable at any point along the lot lines.

   F.   Air pollution. No use shall discharge across the lot lines fly ash, dust, smoke, vapors, noxious, toxic or corrosive matters, or other air pollutants in such concentration as to be detrimental to health, animals, vegetation or property.

   G.   Heat and glare. No use shall produce heat or glare in such a manner as to create a nuisance perceptible from any point beyond the lot lines.

   H.   Water pollution. No use shall produce erosion or other pollutants in such quantity as to be detrimental to adjacent properties and conflict with water pollution standards established by public agencies.

   I.   Waste matter. No use shall accumulate within the lot or discharge beyond the lot lines any waste matter, whether liquid or solid, in violation of applicable public health, safety and welfare standards and regulations.

   From and after the effective date of this appendix, it shall be unlawful for any person, firm or corporation to keep any trailer or similar equipment parked or located within the town for the purpose of human habitation without first obtaining a permit to do so from the Building Commissioner. The application for said permit shall state the lot or legal description of the land upon which such trailer or similar equipment is to be parked or located, the length of time for which it is proposed to keep said trailer or similar equipment within the town, the number, age and sex of the persons who are to occupy the same, and what arrangements will be made for utilities such as heat, light, water and sewage and waste disposal. After receiving any such application and being duly advised in the premises, the Building Commissioner may issue temporary permit for the parking and use of such trailer or similar equipment within the town for a period to be stated in such permit, but not for more than six months at any one time. The fee for such period shall be $25 for each permit or renewal thereof, unless situated within an approved mobile home park.

   The establishment, location and use of manufactured homes as residences shall be permitted in any zone permitting installation of a dwelling unit subject to all the requirements and limitations applying generally to such residential use in the district; and, provided that, such homes shall meet the following requirements and limitations.

   A.   The homes shall meet all requirements applicable to single-family dwellings and possess all necessary improvement, location, building and occupancy permits and other certifications as may be required by the town, state or federal law.

   B.   The homes shall be attached and anchored to a permanent foundation in conformance with the regulations in the state’s One- and Two-Family Dwelling Code and with manufacturer’s installation specifications.

   C.   The homes shall be covered with an exterior material customarily used on site-built residential dwellings, and such material shall extend over the top and such material shall meet the town’s site-built residential dwelling homes’ standard.

   D.   The home shall have a roof composed of a material customarily used on site-built residential dwellings, such as asbestos, fiberglass, shake, asphalt shingles or tile materials, which shall be installed onto a surface appropriately pitched for the materials used.

   A.   Intent of regulation. The purpose of this section is to preserve the integrity and character of residential neighborhoods in the town to prevent the concentration of sexually-oriented businesses or uses in areas where the adverse effects of such businesses would have a deleterious impact upon property values, and to protect minors from the objectionable operational characteristics of such businesses and uses by restricting their close proximity to churches, parks, schools and residential areas. In adopting this section, the town recognizes that there are important and substantial government interests that require reasonable regulation of the time, place and manner of such businesses within the town’s jurisdiction. These important and substantial government interests include adverse secondary effects such as increased crime and urban blight, diminished property values and the spread of sexually transmitted diseases.

   B.   Definitions. The following words, term and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning.

      ENTRANCEWAY or GATEWAY. An intersection of streets or thoroughfares that mark entry into the town or more specifically into certain areas of the town. The location of such ENTRANCEWAYS or GATEWAYS include:

         a.   SR 49 and CR 1100 N;

         b.   SR 49 and Porter Avenue;

         c.   SR 49 and Indian Boundary Road;

         d.   SR 149 and CR 1050 N;

         e.   Indian Boundary Road and Calumet Avenue;

         f.   Porter Avenue and Calumet Road;

         g.   Broadway and Wood Street;

         h.   Calumet Avenue and CR 1100 N;

         i.   11th Street and CR 1050 N;

         j.   Gateway Boulevard and SR 49;

         k.   Voyage Boulevard and SR 49;

         l.   Sidewalk Road and SR 49;

         m.   CR 1100 N and Pearson Road; and

         n.   CR 200 W and CR 1050 N.

      LEWD MATTER. Any matter which:

         a.   The average person finds, when applying contemporary community standards and when considered as a whole, appeals to the prurient interest;

         b.   Depicts or describes patently offensive representations simulated:

            1.   Ultimate sexual acts, normal, perverted or actual; or

            2.   Masturbation, excretory functions or the exhibition of the genitals or genital area.

         c.   Nothing herein is intended to include or proscribe any matter which, when considered as a whole and in the context in which it is used, possesses serious literary, artistic, political or scientific value.

      MOTION PICTURE FILM. Any:

         a.   Film or plate negative;

         b.   Film or plate positive;

         c.   Film designed to be projected on a screen for exhibition;

         d.   Films, glass slides or transparencies, either in negative, positive or digital form, designed for exhibition by projection on a screen; or

         e.   Video tape or any other medium used to electronically or digitally reproduce images on a screen.

      NUDITY or STATE OF NUDITY.

         a.   The appearance of bare human buttocks, anus, male or female genitals, or the areola or nipple of the female breast; or

         b.   A state of dress which fails to opaquely and fully cover a human buttocks, anus, male or female genitals, pubic region or areola or nipple of the female breast.

      SEMI-NUDE or SEMI-NUDITY. A state of dress in which clothing covers no more than the genitals, anus, pubic region and areola of the female breast, as well as portions of the body covered by supporting straps or devices.

      SEXUALLY-ORIENTED BUSINESS. An adult arcade, adult bookstore, adult novelty shop, adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, massage parlor, sexual encounter establishment, escort agency or nude model studio, each of which are more particularly defined as follows.

         a.   ADULT ARCADE. An establishment where, for any form of consideration, one or more still or motion picture projectors, slide projectors or similar machines or other image producing machines, for viewing by five or fewer persons each, are regularly used to show films, motion pictures, video cassettes, slides or other photographic reproductions which are characterized by the depiction or description of “specified sexual activities” or “specified anatomical areas”.

         b.   ADULT BOOKSTORE, ADULT NOVELTY SHOP or ADULT VIDEO STORE. A commercial establishment which has a significant or substantial portion of its stock-in-trade, or derives a significant or substantial portion of its revenues, or devotes a significant or substantial portion of its interior business or advertising to the sale, rental or viewing, for any form of consideration, of any one or more of the following:

            1.   Books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes, slides or other visual representations which are characterized by the depiction or description of “specified sexual activities” or “specified anatomical areas”;

            2.   Instruments, devices or paraphernalia which are designed for use or marketed primarily for stimulation of human genital organs or for sadomasochistic use or abuse of themselves or others; and

            3.   An establishment may have other principal business purposes that do not involve the offering for sale, rental or viewing of materials depicting or describing “specified sexual activities” or “specified anatomical areas”, and still be categorized as adult bookstore, adult novelty shop or adult video store. Such other business purposes will not serve to exempt such establishments from being categorized as adult bookstore, adult novelty shop or adult video store, so long as one of its principal business purposes is the offering for sale, rental or viewing, for any form of consideration, the specified materials which depict or describe “specified anatomical areas” or “specified sexual activities”.

         c.   ADULT CABARET. A nightclub, bar, restaurant “bottle club” or similar commercial establishment, whether or not alcoholic beverages are served, which regularly features:

            1.   Persons who appear nude or in a state of nudity or semi-nudity;

            2.   Live performances which are characterized by the exposure of “specified anatomical areas” or by “specified sexual activities”; or

            3.   Films, motion pictures, video cassettes, slides or other photographic reproductions which are characterized by the depiction or description of “specified sexual activities” or “specified anatomical areas”.

         d.   ADULT MOTEL. A motel, hotel or similar commercial establishment which:

            1.   Offers public accommodations, for any form of consideration, which provides patrons with closed-circuit television transmissions, films, motion pictures, video cassettes, slides or other photographic reproductions which are characterized by the depiction or description of “specified sexual activities” or “specified anatomical areas” and which advertises the availability of this sexually-oriented type of material by means of a sign visible from the public right-of-way, or by means of any off-premises advertising including, but not limited to, newspapers, magazines, pamphlets, leaflets, radio or television; and

            2.   Offers a sleeping room for rent for a period of time less than ten hours or allows a tenant or occupant to sub-rent the sleeping room for a period of less than ten hours.

         e.   ADULT MOTION PICTURE THEATER. A commercial establishment where films, motion pictures, video cassettes, slides or similar photographic reproductions which are characterized by the depiction or description of “specified sexual activities” or “specified anatomical areas” are regularly shown for any form of consideration.

         f.   ADULT THEATER. A theater, concert hall, auditorium or similar commercial establishment which, for any form of consideration, regularly features persons who appear nude, in a state of nudity or semi-nudity, or live performances which are characterized by exposure of “specified anatomical areas” or by “specified sexual activities”.

         g.   ESCORT. A person who, for any form of consideration, agrees or offers to act as a companion, guide or date for another person, or who agrees or offers to privately model lingerie or to privately perform a striptease for another person.

         h.   ESCORT AGENCY. A person or business association who furnishes, offers to furnish or advertises to furnish escorts as one of its primary business purposes for a fee, tip or other consideration.

         i.   MASSAGE PARLOR. Any place where, for any form of consideration or gratuity, massage, alcohol rub, administration of fomentations, electric or magnetic treatments, or any other treatment or manipulation of the human body which occurs as a part of, or in connection with, “specified sexual activities”, or where any person providing such treatment, manipulation or service related thereto, exposes his or her “specified anatomical areas”. The definition of sexually-oriented businesses shall not include the practice of massage in or by any licensed hospital, licensed physician, surgeon, chiropractor, osteopath or any nurse or technician working under the supervision of a licensed physician, surgeon, chiropractor or osteopath, or by trainers for any amateur, semiprofessional or professional athlete or athletic team or school athletic program, or by any person so licensed to perform such activities.

         j.   NUDE MODEL STUDIO. Any place where a person who regularly appears in a state of nudity or displays “specified anatomical areas” for money or any form of consideration and is to be observed, sketched, drawn, painted, sculpted, photographed or similarly depicted by other persons.

         k.   SEXUAL ENCOUNTER ESTABLISHMENT. A business or commercial establishment that, as one of its primary business purposes offers, for any form of consideration, a place where two or more persons may congregate, associate or consort for the purpose of engaging in “specified sexual activities” or the exposure of “specified anatomical areas”, or activities when one or more of the persons is in a state of nudity or semi-nudity. The definition of “sexually-oriented businesses” shall not include an establishment where a medical practitioner, psychologist, psychiatrist or similar professional person licensed by the state engages in medically approved and recognized sexual therapy.

      SPECIFIED ANATOMICAL AREAS. Any of following:

         a.   Less than completely and opaquely covered human genitals, pubic region, buttocks, anus or female breasts 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. Any of the following:

         a.   The fondling or other intentional touching of human genitals, pubic region, buttocks, anus or female breasts;

         b.   Sexual acts, normal or perverted, actual or simulated, including intercourse, oral copulation or sodomy;

         c.   Masturbation, actual or simulated;

         d.   Human genitals in a state of sexual stimulation, arousal or tumescence; or

         e.   Excretory functions as part of, or in connection with, any of the activities set forth in subsections a. though d. above of this definition.

   C.   Prohibitions. No sexually-oriented businesses shall be permitted unless such business site or proposed site is located in a district identified as “S-1”, subject to the following further restrictions.

      1.   No such use shall be located within a 1,000-foot radius of any other such use.

      2.   No such use shall be located within a 1,000-foot radius of any parcel used for residential purposes, or a parcel located in a residential zoning district or any portion of a planned unit development designated for residential purposes.

      3.   No such use shall be located within a 1,000-foot radius of any school, child care center, child care home, nursing shelter, care or rest home, religious institution, park, playing field, pool or billiard hall, coin-operated amusement center, dance center, ice or roller skating rink, park or other public recreational facility typically catering to minors, indoor or outdoor theater, art gallery, museum, library or other area where large numbers of minors travel or congregate.

      4.   No such use shall be located within a 1,000-foot radius from the intersection of any two streets that constitute an entranceway or gateway into the town, as defined by this section.

      5.   The distance between one sexually-oriented business and another such use shall be measured in a straight line, with regard to intervening structures or objects, from the closest exterior structural wall of each such business. The distance between a sexually-oriented business and any church, school, park or other establishment referenced in subsection B.5. above shall be measured in a straight line, without regard to intervening structures or objects, from the closest exterior wall of the sexually- oriented business to the nearest property line of the church, school, park or other such use. If a sexually- oriented business is part of or included within an integrated center, only the portion of said center or leased space occupied by such sexually-oriented business shall be included in determining the closest exterior structural wall of said establishment.

      6.   No such use shall be permitted to operate as an accessory use unless it is permitted by this section.

   D.   Exterior display. No sexually-oriented business shall be conducted in any manner that permits the observation of any material depicting, describing or relating to specified sexual activities or specified anatomical areas by display, decoration, sign, show window or other opening from any public view.

   E.   Signs. Signs for such establishments shall not display any pictures, photographs, silhouettes, drawings or other pictorial representations of a sexually-oriented nature, and may contain only the legal name and address of said establishment. The total number of business wall signs for any single establishment shall not exceed two.

      1.   Sign surface area. The sign surface area of a business wall sign for a sexually-oriented business shall not exceed an amount equal to 5% of the front building facade of the first floor elevation (first ten feet) of the premises occupied by the sexually-oriented business, or 40 square feet, whichever is the lesser, of all signs combined. The maximum sign surface area of a freestanding sign, where permitted, shall not exceed 40 square feet gross per side.

      2.   Lighting. Signs and sign structures may be illuminated; provided, however, such illumination shall not be by way of exposed neon, exterior lighting (e.g., spot or floodlights), or any flashing or animated lights (either interior to the sign, on the exterior of the sign or as a border to the sign).

   F.   Penalty. It shall be unlawful to locate, erect, construct, reconstruct, enlarge, change, maintain or use any structure or land in violation of any of the provisions of this appendix, in addition to the penalties provided herein, the Plan Commission, BZA or the Town Council may institute a suit for injunction directing removal of a structure erected in violation of this appendix or for the remedying of any other violation of this appendix. Any person, firm or other legal entity who violates any provision of this appendix may be cited into a court of law and subject to § 1-9 of this code of ordinances, and provides for a fine not to exceed $2,500 per day for each day that the violation exists. Each day the violation continues shall constitute a separate offense.

(Ord. 2005-19, passed 11-14-2005)