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09/04/2012 07 Adult Entertainment; Adoption of Findings of Fact Supporting a Six-Month Moratorium; Extension of Moratorium • �.. /ems n k I3USINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON . AGENDA STATEMENT Item No. 7 For Meeting of: September 4, 2012 ITEM TITLE: Public Hearing and Resolution adopting proposed Findings of Fact supporting enactment of moratorium regarding adult entertainment and adult entertainment businesses. SUBMITTED BY: Jeff Cutter, City Attorney CONTACT Mark Kunkler, Senior Assistant City Attorney /575 -3552 PERSON /TELEPHONE: SUMMARY EXPLANATION: The City Council adopted Ordinance No. 2012 -26 on July 17, 2012 imposing a moratorium on receipt, processing and issuance of licenses, permits and approvals for adult entertainment and adult entertainment business uses pending development of a comprehensive code regulating such uses. Under state law, a public hearing must be held within 60 days of adoption of a moratorium to receive public testimony and evidence regarding adoption of the moratorium and adopting findings of fact supporting the moratorium. This public hearing has been noted and scheduled for August 21, 2012. Attach to this item are (a) a Resolution stating proposed Findings of Fact; (b) a memorandum discussing the issues and applicable procedures, and setting forth record documents generated to date. Additional materials of record described in the Memorandum were previously submitted with the August 21, 2012 council agenda packet and are on file with the City Clerk's office. Following the public hearing the City Council may adopt the proposed Resolution as is, or may modify the Findings of Fact to conform to any modification made to the moratorium. Resolution X Ordinance Other (specify) Contract: Mail to: Contract Term: Amount: Expiration Date: Insurance Required? No Funding Source: Phone: APPROVED FOR SUBMITTAL: dA4vt &eftr•Lit City Manager STAFF RECOMMENDATION: • Adopt Resolution to include Findings of Fact conforming to and supporting scope of moratorium regarding adult entertainment. BOARD /COMMISSION RECOMMENDATION: ATTACHMENTS: Click to download ❑ Resolution ❑ 2012 -026 Six Month Moratorium; Adult Entertainment; Set Hearing Date ❑ memo re moratorium findings • RESOLUTION NO. R -2012- A RESOLUTION adopting Findings of Fact supporting a six -month moratorium, enacted July 17, 2012 pursuant to emergency Ordinance No. 2012 -26, prohibiting the filing, receipt, processing and approval of land use applications for establishment and operation of adult entertainment and adult entertainment businesses; exempting businesses for which a complete application was pending on the effective date of the moratorium or which were legally in existence at such time; directing development of comprehensive zoning and business regulations for such uses; providing that the moratorium shall be in existence through January 15, 2013; and declaring an emergency providing for immediate effective date. WHEREAS, pursuant to RCW 36.70A.390 and RCW 35.63.200, the City Council of the City of Yakima by unanimous vote of those present on July 17, 2012 adopted Ordinance No. 2012 -26 imposing a moratorium for six months prohibiting applications for, and approvals of, land uses for establishment and operation of adult entertainment and adult entertainment businesses, and WHEREAS, RCW 36.70A.390 and RCW 35.63.200 require the City Council to hold a public hearing within sixty days after imposition of a moratorium to receive evidence and testimony regarding imposition of the moratorium, to consider whether such moratorium should be modified or continue in effect as originally adopted, and to adopt findings of fact supporting such decision; and WHEREAS, the City Council has held the required public hearing on September 4, 2012 pursuant to notice duly published, and having considered all evidence and testimony presented, hereby makes the following Findings of Fact 1. The City Council of the City of Yakima has authority pursuant to RCW 36.70A.390 and RCW 35.63.200 to adopt a moratorium to preserve the status quo pending development of comprehensive land use controls and regulations, health and safety regulations, and business licensing or registration regulations and procedures, concerning adult entertainment and adult entertainment businesses. 1 2. The city council is committed to protecting the general welfare of the city through the • 9 9 tY 9 enforcement of laws prohibiting obscenity, indecency, and sexual offenses while preserving constitutionally protected forms of expression. 3. The city has made a detailed review of the national and state record, including studies from the cities of Austin, Texas, Garden Grove, California, and Los Angeles, California, and Seattle, Des Moines, Federal Way, Centralia and Bellevue in the State of Washington. The city is continuing to examine records and reports of various cities, and court decisions regarding adult entertainment uses, including adult retail establishments. The city council finds that adult entertainment uses, including adult retail establishments and businesses, require special supervision from public safety agencies in order to protect and preserve the health, safety, and welfare of the patrons and employees of said business as well as the citizens of the city. 4. The city council finds that concerns about crime and public sexual activity generated and /or occurring within or near adult entertainment and adult entertainment businesses are legitimate, substantial and compelling concerns of the city which demand reasonable regulation. 5. The city council finds that adult entertainment and adult entertainment businesses, due to their nature, have secondary adverse impacts upon the health, safety, and welfare of the citizenry through increases in crime and opportunity for spread of sexually transmitted diseases. 6. There is convincing documented evidence that adult entertainment and adult retail establishments have a detrimental effect on both the existing businesses around them and the surrounding residential areas adjacent to them, causing increased crime, the downgrading of quality of life and property values and the spread of urban blight. Reasonable regulation of the location of these facilities will provide for the protection of the community, protect residents, patrons, and employees from the adverse secondary effects of such facilities. The documented evidence and reports concerning the association of adverse secondary effects with adult entertainment and adult entertainment businesses include the following court decisions and reports: The court decisions of City of Renton v. Playtime Theatres, Inc , 475 U.S. 41 (1986), Young v. American Mini Theatres, 426 U.S. 50 (1976), and Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991), and in studies in other communities including but not necessarily limited to: Adams County, Colorado, "Adams County Nude Entertainment Study (1991 update); Austin, Texas, "Report on Adult Oriented Businesses in Austin" (1986); Centralia, Washington, "Crime Risk 2 • in the Vicinity of a Sexually Oriented Business: A Report to the Centralia City Attorney's Office — Revised" (2004); Chattanooga, Tennessee, "Community Protections Committee's Final Report on Vice in Hamilton County with Recommendations" (1997); Garden Grove, California, "Final Report to the City of Garden Grove: The Relationship Between Crime and Adult Business Operations on Garden Grove Boulevard" (1991); Cleveland, Ohio, Special Investigative Unit Report (1977); Dallas, Texas, "An Analysis of the Effects of SOBs on the Surrounding Neighborhoods in Dallas, Texas" (1997); Des Moines, Washington, "Des Moines Adult Use Study" (1984); El Paso, Texas, "Effects of Adult Entertainment Businesses on Residential Neighborhoods" (1986); Ellicottville, New York, "Adult Business Study" (1998); Fort Worth, Texas, "Survey of Appraisers Fort Worth & Dallas Effects of Land Uses on Surrounding Property Values" (2004); Indianapolis, Indiana, "Adult Entertainment Businesses in Indianapolis" (1984); Los Angeles, California, "Study of the Effects of the Concentration of Adult Entertainment Establishments in the City of Los Angeles" (1977); Minneapolis, Minnesota, "An Analysis of the Relationship Between Adult Entertainment Establishments, Crime, and Housing Values" (1980); State of Minnesota, "Report of the Attorney General's Working Group on the Regulation of Sexually Oriented Businesses" (1989); Newport News, Virginia, "Adult Use Study" (1996); New York City, New York, "Adult Entertainment Study" (1994), "Report on the Secondary Effects of the Concentration of Adult Use Establishments in the Times Square Area" (1994), Oklahoma City, Oklahoma, "Adult Entertainment Businesses in Oklahoma City: A Survey of Real Estate Appraisers" (1986); Phoenix, Arizona, "Adult Business Study" (1979); Seattle, Washington, "Adult Cabarets in Seattle" (2006), 7. The city recognizes that adult entertainment and adult retail establishments and businesses, due to their very nature, have serious objectionable operational characteristics, particularly when located in close proximity to residential neighborhoods, day care centers, religious facilities, public parks, schools, and public facilities open to families, such as post offices and medical clinics, and thereby having a deleterious impact upon the quality of life in the surrounding areas. It has been acknowledged by courts and communities across the nation that state and local governmental entities have a special concern in regulating the operation of such businesses under their jurisdiction to ensure the adverse secondary effects of the establishments are minimized. 8. The moratorium adopted in Ordinance No. 2012 -26 is intended to preserve the status quo to enable the city to develop and implement a comprehensive regulation and land use controls to protect the general public health, safety, and welfare of the citizenry of the city through the regulation of the location of adult entertainment and adult entertainment businesses. The regulation and controls to be developed are 3 intended to control health, safety, and welfare issues, to prevent decline in • neighborhood conditions in and around adult entertainment and adult entertainment businesses, and to isolate dangerous and unlawful conduct associated with these facilities. 9. It is not the intent of Ordinance No. 2012 -26 to suppress any speech activities protected by the First Amendment to the United States Constitution, or Article 1, Section 5 of the Washington State Constitution, but to provide an opportunity to develop and implement content - neutral legislation which addresses the negative secondary impacts of adult entertainment and adult retail establishments. 10. It is not the intent of the city council to condone or legitimize the distribution of obscene material, and the city council recognizes that state and federal law prohibits the distribution of obscene materials. 11. The city council, at its duly advertised public hearing on August 21, 2012, considered the subject matter of adult entertainment and adult entertainment businesses, at which public hearing the city council received comments from the public on that subject matter, which the city council believes to be true, and which, together with the findings heretofore set forth, form the basis for the adoption of these Findings of Fact and the Resolution herein. 12. The City Council finds and determines that the City of Yakima needs time to consider additional zoning regulations, health and safety regulations, and business licensing regulations which would deal specifically with adult entertainment and adult entertainment businesses within the City of Yakima, and the City Council therefore finds and determines that the moratorium for the term of six months adopted and implemented in Ordinance No. 2012 -26, commencing on July 17, 2012 and extending through January 15, 2013, is necessary and appropriate in order to study the issues and to consider adopting appropriate regulations. 13. The City Council finds and determines that imposition of the moratorium adopted pursuant to Ordinance No. 2012 -26 is necessary to (a) provide the City with an opportunity to study the issues regarding siting, zoning and regulation of adult entertainment and adult entertainment businesses within the City of Yakima and to prepare appropriate revisions to the City's codes and regulations; (b) to protect the health, safety and welfare of the citizens of Yakima by avoiding and ameliorating adverse secondary effects associated with adult entertainment and adult entertainment businesses within the City of Yakima; and (c) to avoid applicants 4 • possibly establishing vested rights contrary to and inconsistent with any revisions the City may make to its regulations and codes as a result of the City's study of this matter. 14. The City Council finds, determines and concludes that an emergency exists justifying emergency adoption of Ordinance No 2012 -26, to wit: the United States District Court for the Eastern District of Washington in the case captioned Muffett v. City of Yakima, et at., Case No. CV -10- 3092 -RMP, issued a decision on July 17, 2012. The decision held, in part, that the City of Yakima is permanently enjoined from enforcing the compatibility requirement of YMC 15.02.020 and 15.04.020 with respect to conduct protected by the First Amendment unless and until the compatibility provision is modified to conform to constitutional standards" in a manner consistent with the court's decision. As a result of the court's ruling striking down the aforementioned provisions of the current Yakima Municipal Code provisions pertaining to adult business and adult entertainment, the City does not have code provisions to adequately address the various impacts to public health, safety, morals and general welfare that these uses present. The effects of such decision declaring such code provisions to be unenforceable and enjoining use of such codes to regulate adult businesses and adult entertainment, would include, inter alia, allowing locations for adult businesses and adult entertainment without the ability to develop or implement appropriate objective standards governing such locations within the City. This is likely to result in probable significant unmitigated public health, safety, criminal and environmental impacts on adjacent land uses, including but not limited to schools, churches and public property such as parks, residential neighborhoods. Neither City staff nor the Planning Commission have had sufficient opportunity to review the effects of such Act or to formulate, prepare and recommend appropriate zoning regulations, health and safety regulations, and business licensing regulations which would deal specifically with adult entertainment and adult entertainment businesses within the City of Yakima. The immediate imposition of this moratorium pursuant to Ordinance No. 2012 -26 will preserve the status quo to enable the City to further study the adverse secondary effects of adult entertainment and adult entertainment businesses and to devise appropriate zoning and regulatory controls to address the effects of such uses. 15. The City Council finds and determines that the moratorium adopted and implemented pursuant to Ordinance No. 2012 -26 should remain in effect according 5 to its terms, and that such is in the best interests of residents of the City of Yakima • and will promote the general health, safety and welfare; therefore BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: 1. The Findings of Fact set forth above are hereby adopted as the Findings of Fact supporting the adoption, implementation and continuation of the moratorium adopted July 17, 2012 pursuant to Ordinance No. 2012 -26 according to its terms. 2. The City Manager of the City of Yakima is hereby authorized and directed to perform those duties and functions set forth in Ordinance No. 2012 -26, including but not limited to, development of proposed comprehensive land use, licensing, and health and safety regulations pertaining to adult entertainment and adult entertainment businesses and any issue ancillary thereto. ADOPTED BY THE CITY COUNCIL this 4th day of September, 2012. Micah Cawley, Mayor ATTEST: City Clerk 6 • ORDINANCE NO. 2012 - 26 AN ORDINANCE of the City of Yakima, Washington, adopting a six -month moratorium of the filing and acceptance of development applications for, and the location of, land uses operating or conducting- adult entertainment or adult entertainment business; exempting land uses for which a complete development application was pending upon the effective date of this ordinance or which were legally in existence at such time; directing development of comprehensive zoning and business regulations pertaining to adult entertainment and adult entertainment businesses; providing that the moratorium shall be in effect for six months, through January 15, 2013; setting public hearing on moratorium for August 21, 2012; and declaring . an emergency providing for immediate effective date. WHEREAS, in conformance with the Growth Management Act of the State of Washington, the City of Yakima ( "City ") is required to develop, adopt, implement and review a comprehensive plan, as well as a zoning code and development regulations consistent with that plan; and WHEREAS, the City has previously adopted ordinances codified at Chapter 6.10 YMC prohibiting nudity and semi -nudity on premises or businesses licensed by the Washington State Liquor Control Board for the service, sale or consumption of alcoholic beverages; and ordinances codified at Chapter 5.30 YMC regulating dance studios, and defining "adult entertainment;" and ordinances codified at YMC 15.09.200 defining "adult business" and "adult entertainment," and establishing requirements and land use controls for such businesses and entertainment; and WHEREAS, the City has received application in the past for adult entertainment and adult business, processed under the provisions referenced above, which application is currently subject to judicial review, and the City of Yakima may receive in future applications for adult entertainment and adult businesses that would significantly increase the amount of commercial space characterized by such uses and located within the City; and WHEREAS, the United States District Court for the Eastern District of Washington in the case captioned Muffett v. City of Yakima, et al., Case No. CV- 10- 3092 -RMP issued a decision on July 17, 2012. The decision held, in part, that the City of Yakima "is permanently enjoined from enforcing the compatibility requirement of YMC 15.02.020 and 15.04.020 with respect to conduct protected by the First Amendment unless and until the compatibility provision is modified to 1 conform to constitutional standards" in a manner consistent with the court's • decision; and WHEREAS, as a result of the court's ruling striking down the aforementioned provisions of the current Yakima Municipal Code provisions pertaining to adult business and adult entertainment, the City does not have code provisions to adequately address the various impacts to public health, safety, morals and general welfare that these uses present. The effects of such decision declaring, such code provisions to be unenforceable and enjoining use of such codes to regulate adult businesses and adult entertainment, would include, inter aOia, allowing locations for adult businesses and adult entertainment without the ability to develop or implement appropriate objective standards governing such locations within the City. This is likely to result in probable significant unmitigated public health, safety, criminal and environmental impacts on adjacent land uses, including but not limited to schools, churches and public property such as parks, residential neighborhoods; and WHEREAS, other cities in the state and region, and elsewhere in the country, have adopted ordinances regulating adult businesses and adult entertainment uses, based upon evidence of the negative secondary effects of such uses; and WHEREAS, residents of the City of Yakima would be well served if the City Council and City staff could more fully address and understand the potential negative secondary effects of such adult businesses and adult entertainment uses, in the form of health, safety, economic, environmental and aesthetic impacts that these uses could impose upon neighboring properties and the community as a whole; and WHEREAS, the City needs to review existing information on the negative secondary effects of adult business and adult entertainment uses, and to review the City's codes and ordinances in a comprehensive fashion to determine whether they sufficiently address the secondary effects of such uses and appropriately balance the interests of adult businesses and adult entertainment providers, and WHEREAS, the City needs more time to consider properly and carefully the location and regulation of adult businesses and adult entertainment; and WHEREAS, based on a wide range of testimony and documents presented to other cities and counties by law enforcement agencies and the public, the City Council finds that adult entertainment businesses and adult entertainment, although afforded some constitutional protection, often result in undesirable secondary effects, including criminal and other unlawful activities such as prostitution, narcotics and liquor law violations, breaches of the peace, assaults and sexual contact between entertainers and patrons; and 2 • WHEREAS, the City Council finds that the City's land use integrity and the state Growth Management Act planning process will suffer significant harm unless applications for licenses, permits and approvals for adult businesses and adult entertainment are halted until the planning process is completed; and WHEREAS, the City Council finds that protection of the health, safety and welfare supports establishment of a moratorium on applications for licenses, permits and approvals for adult businesses and adult entertainment, as such terms are defined in the Yakima Municipal Code, including but not limited to, Chapter 5.30 YMC and YMC 15.06.200; and WHEREAS, RCW 35.63.200 and RCW 36.70A.390 authorize the City to adopt a moratorium on development permits and approvals for adult businesses and adult entertainment and thereafter to hold a public hearing on the moratorium to be held within sixty (60) days of the commencement of the moratorium; and WHEREAS, the City Council finds that the enactment of this Ordinance constitutes and emergency due to the decision of the federal district court in Muffett v. City of Yakima, et al. described above, which decision invalidated, declared unenforceable and enjoined the application of existing City codes pertaining to adult businesses and adult entertainment, leaving the City without effective means to regulate such uses; and WHEREAS, the City Council further finds and determines that enactment of this Ordinance constitutes an emergency due to challenges to the provisions of existing City codes pertaining to adult businesses and adult entertainment concerning the provisions and procedures of YMC 15.09.200 regarding findings of compatibility of such uses to the surrounding neighborhoods, and that existing City code and regulations do not adequately address the potential health, safety, environmental, zoning, infrastructure, law enforcement and community impacts associated with adult businesses and adult entertainment located and likely to be located in the City of Yakima; and WHEREAS, this emergency is further supported by the unnecessary burden and infringement placed on businesses and other persons desiring to process applications for adult entertainment and adult entertainment businesses under a regulatory process that is ill- suited to review the health, safety, environmental, zoning, infrastructure, law enforcement and community issues involved in such applications; and WHEREAS, a moratorium on the acceptance, processing and issuance of permits for adult businesses and adult entertainment is necessary to enable the City Council to formulate a comprehensive permitting process which addresses 3 impacts, mitigation requirements, zoning for potential siting, other • 9 p 9, requirements and standards to protect and benefit the public interest; and WHEREAS, the potential adverse effects on the public health, property, safety and welfare, as discussed above, justify the declaration of an emergency; and WHEREAS, the City Council authorizes and directs the City Manager to review existing City codes and zoning regulations, further study the effects resulting from any approval of adult businesses and adult entertainment, prepare comprehensive proposed amendments to the City codes and zoning regulations to address the effects of such uses, to confer with community members and City advisory commissions, including public hearing before the Planning Commission, as appropriate, and to present recommended legislation addressing such issues to the City Council for consideration and action; and WHEREAS, the City Council finds and determines that a public hearing on this moratorium should be held on August 21, 2012, whereupon the City Council may adopt findings of fact in support of the adoption of this moratorium, or modify the terms thereof; and WHEREAS, notwithstanding the term of six months set forth above for the moratorium adopted herein, this moratorium may be (a) modified by the City Council in accordance with applicable law; (b) extended for additional term(s) of six months upon action following public hearing and adoption of findings in support thereof; (c) terminated by the City Council upon adoption of appropriate zoning and regulatory codes; or (d) terminated by the City Council for any reason deemed necessary or appropriate; now, therefore: BE IT ORDAINED BY THE CITY OF YAKIMA: Section 1. Moratorium Established. A moratorium is imposed upon the filing with the City of Yakima of any applications for licenses, permits and approvals for adult businesses and adult entertainment, as those terms are defined and used in the City of Yakima Municipal Code and below, and for adult entertainment and adult entertainment business as those terms are commonly understood. Section 2. Exemption — Vested Rights. This moratorium specifically exempts any application for permit deemed complete as of the effective date of this moratorium, and any adult entertainment business or use lawfully existing as of the effective date of this moratorium. Section 3. Public Hearing. Pursuant to RCW 36.70A.390 and RCW 35.63.200, a public hearing will be held on Tuesday, August 21, 2012, for the 4 • purpose of taking testimony and, if this ordinance is passed, adopting written findings and conclusions justifying the moratorium established by this ordinance. Section 4. Effective Period of Moratorium. The moratorium adopted by this ordinance shall become effective immediately upon passage and approval of - this ordinance, and shall remain in effect for six months, through January 15, 2013, subject to adoption of findings and conclusions as provided in Section 3 above. This moratorium shall also terminate upon the adoption of permanent regulations governing the location, land use and regulation of adult businesses and adult entertainment. Notwithstanding the above, this moratorium may be extended as provided in RCW 36.70A.390 and RCW 35.63.200. Section 5. Direction to Develop Comprehensive Adult Entertainment Regulation Ordinance. The City Council hereby authorizes and directs the City Manager to develop a comprehensive adult entertainment and adult entertainment business ordinance which shall be presented to the City Council on the earliest possible date. The City Manager is encouraged to seek input from appropriate City staff, business representatives, other commissions and boards of the City, other governmental agencies and members of the public. Section 6. Subjects for Consideration. Without limitation, the City Manager is encouraged to consider all subjects relevant to the regulation of adult businesses and adult entertainment, including but not limited to: appropriate business license requirements; regulation of conduct of adult entertainment and adult entertainment businesses; law enforcement effects and needs; safety of employees, patrons and the public; community standards of morality and decency; appropriate or necessary zoning or siting requirements; appropriate or necessary building requirements; issues of free speech and signage intended for advertising of adult entertainment and adult entertainment businesses; and any other matter deemed necessary or appropriate to preserve, promote and protect the general health, safety and welfare. Section 7. Declaration of Emergency. Pursuant to Article VI Section 2 of the Charter of the City of Yakima, the City Council finds, determines and declares that - this ordinance is an emergency ordinance to provide for the immediate preservation of the public peace, property, health or safety. The unanimous vote of the City Council shall be necessary for the passage of this emergency ordinance. Section 8. Severability. If any section, sentence, clause or phrase of this ordinance should be held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity of constitutionality of any other section, sentence, clause or phrase of this ordinance. 5 Section 9. Effective Date. This ordinance shall be in full force and • effect immediately upon its passage and approval as provided by law and the City Charter. PASSED BY THE CITY COUNCIL, signed and approved this 17 day of July, 2012. Micah Cawley, Mayor ATTEST: 4/4 ,4■141 i I City Clerk � �' Effective Date: July 17, 2012 � 2 , 0 ‘� WASN``��� Publication Date: July 20, 2012 Ordinance Approved by Unanimous Vote of Council Members: July 17, 2012 6 CITY OF YA]KIMA • LEGAL DEPARTMENT 200 South Thins Sineet, Yakima, Washington 98901 (509)575 -6030 Fax (509)575 -6160 MEMORANDUM August 7, 2012 TO: Honorable Mayor and City Council Tony O'Rourke, City Manager FROM: Mark Kunkler, Senior Assistant City Attorney SUBJECT: Adult Entertainment — Moratorium — Findings of Fact — Record A. Introduction. A public hearing has been set for September 4, 2012 to consider the Moratorium adopted pursuant to Ordinance No. 2012 -26 adopted July 17, 2012 regarding adult entertainment and adult entertainment businesses. Under state statutes authorizing imposition of moratoria, the legislative body adopting a moratorium must hold a public hearing within sixty days of adoption, receive public comment and /or evidence, and adopt Findings of Fact modifying the scope of the moratorium or maintaining the moratorium as originally adopted. RCW 36.70A.390 and RCW 35.63.200. The purpose of this Memorandum is to provide a general background of the issues involved in the arena of adult entertainment, identify possible areas of regulation, and document the "record" obtained to date in support of the continuation of the moratorium. B. Existing City Codes. The City of Yakima has code provisions defining and regulating adult entertainment and adult entertainment businesses. These are codified at YMC 19.09.200 (Adult Business), Chapter 6.10 YMC (prohibiting nudity and semi - nudity on premises or businesses licensed by the Washington State Liquor Control Board), and Chapter 5.30 YMC (Dance Studios). YMC 15.09.200 states applicable definitions for adult businesses, imposes limitations in terms of minimum 500 -foot distance from churches, public schools, private schools, day care centers, public parks, public libraries, residential zoning districts and other adult entertainment business establishments. The existing code imposes signage requirements, hours of operation and building standards. The code also provides a "review" mechanism for new applications for adult entertainment businesses. YMC 15.09 200(C)(1) states: Memorandum to Honorable Mayor and Members of the City Council • August 17, 2012 Page 2 Adult business uses shall be considered Class (2) uses, requiring Type (2) review, in and only in the CBD (central business district), GC (general commercial) zoning districts; and as a Class (3) use, requiring Type (3) review, in and only in the M -1 (light industrial) zoning district when applicable development standards of this section are met: The effect of the above section is to subject the review of an application for an adult business use to the land use review processes of Chapters 15.04, 15.14 and 15.15 YMC. YMC 15.04.020 provides in part: B. Class (2) uses are generally permitted in the district. However, the compatibility between a Class (2) use and the surrounding environment cannot be determined in advance, and occasionally a Class (2) use may be incompatible at a particular location. Therefore, a Type (2) review by the administrative official is required in order to promote compatibility with the intent and character of the district and the policies and development criteria of the Yakima urban area comprehensive plan. The procedures in YMC Chapter 15.14 shall be used to review and evaluate Class (2) uses. In certain circumstances, the administrative official may require that a Class (2) use undergo a Type (3) review, as provided within this title. C. Class (3) uses are generally not permitted in a particular district, but may be allowed by the hearing examiner after a Type (3) review and public hearing. The hearing examiner may approve, deny, or impose conditions on the proposed land use and site improvements to promote compatibility with the intent and character of the district and the policies and development criteria of the Yakima urban area comprehensive plan. The procedures in YMC Chapter 15.15 shall be used to review and evaluate Class (3) uses or Class (2) uses that have been forwarded to the hearing examiner for review. Likewise, the definitions in YMC 15.02.020 provide: "Class (2) uses" are those uses set forth and defined in the text and tables of YMC Chapter 15.04 and are generally permitted throughout the district. However, site plan review by the administrative official is required in order to ensure compatibility with the 0 Memorandum to Honorable Mayor and Members of the City Council August 17, 2012 Page 3 intent and character of the district and the objectives of the Yakima urban area comprehensive plan. "Class (3) uses" are those uses set forth and defined in the text and tables of YMC Chapter 15.04 and are generally incompatible with adjacent and abutting property because of their size, emissions, traffic generation, neighborhood character or for other reasons. However, they may be compatible with other uses in the district if they are properly sited and designed. Class (3) may be permitted by the hearing examiner when he determines, after holding a public hearing, that the use complies with provisions and standards: and that difficulties related to the compatibility, the provisions of public services, and the Yakima urban area comprehensive plan policies have been adequately resolved. (Emphasis added.) C. Court Decision — Muffett v., City of Yakima, et al. It was the underlined portions of the above code sections that were found to be unconstitutional and unenforceable by the federal court judge in her ruling in Muffett v. City of Yakima, et al., Case No. CV -10- 3092 -RMP (E.D. Wash. July 17, 2012). In brief, the above code sections vest the "administrative official" and hearing examiner with discretion, unlimited by sufficient objective standards, with the ability and duty to determine and define "compatibility." The court held that adult entertainment or "nude dancing" was a form of speech protected by the First Amendment. Because free speech issues are invoked, the city's codes and procedures are subject to heightened scrutiny. The court ruled in part: This compatibility requirement, by its plain terms, allows an administrative official to reject a proposed use based on its not being in "harmony" with the "character of the district." Such subjective standards provide no basis for a Court sitting in review to determine whether the standard has been applied correctly. The compatibility standard is neither objective nor narrow as required under Shuttlesworth, 394 U.S. at 149; see also Diamond, 29 F.Supp.2d at 649 -50. Accordingly, the [city's code] requirement that adult businesses undergo a compatibility review is an unconstitutional prior restraint. Muffett, Decision at 18. Memorandum to Honorable Mayor and Members of the City Council • August 17, 2012 Page 4 The judge's ruling further concluded that the City of Yakima "is permanently enjoined from enforcing the compatibility requirement of YMC 15.02.020 and 15.04.020 with respect to conduct protected by the First Amendment unless and until the compatibility provision is modified to conform to constitutional standards" in a manner consistent, with the court's decision. Muffett, Decision at 20 -21. D. Effect of Decision. The Court's ruling in Muffett v. City of Yakima, et al. calls into question the ability of the city to limit adult entertainment business uses to the CBD (central business district), GC (general commercial) zoning districts; and the M -1 (light industrial) zoning district as set forth in YMC 15.09.200(C)(1) above. The designated zoning districts named in that section are specifically tied to the Class 2 or Class 3 review processes. Consequently, it is necessary to develop objective standards to delineate allowable locations or zoning districts for adult entertainment and adult entertainment businesses. E. Secondary Effects of Adult Entertainment. The City of Yakima is entitled to rely on facts, records and reports prepared by other jurisdictions when analyzing secondary effects associated with adult entertainment and adult entertainment businesses. City of Renton v. Playtime Theaters, Inc., 475 U.S. 41, 106 S.Ct. 925 (1986). There are several court decisions and reports describing adverse secondary effects associated with adult entertainment and adult entertainment businesses. The court decisions and studies conducted by other jurisdictions describe adverse secondary effects of adult entertainment and adult entertainment businesses, including but not limited to, increased crime, increased sex - related crime rates, lowering of property values. See subsection (G), "Record of Documents for Public Hearing," below. F. Recommendation. In view of the recent decision in Muffett v. City of Yakima, et al., and in view of the need to study and develop comprehensive land use and regulatory controls regarding adult entertainment and adult entertainment businesses, it is staffs recommendation that the moratorium as originally adopted remain in effect as enacted. Issues regarding adult entertainment and adult entertainment businesses are tentatively set for discussion before the Planning Commission on September 12, 2012, with a public hearing before the Planning Commission on October 10, 2012. • Memorandum to Honorable Mayor and Members of the City Council August 17, 2012 Page 5 G. Record of Documents for Public Hearing. The following documents serve as the record to date for Council consideration regarding the moratorium adopted July 17, 2012 in Ordinance No. 2012 -26: (a) Resolution No. 2012- adopting Findings of Fact for Moratorium regarding adult entertainment adopted pursuant to Ordinance No. 2012 -26. (b) Ordinance No. 2012 -26 imposing moratorium on adult entertainment uses, adopted as an emergency ordinance on July 17, 2012. (c) Decision of the Court in Muffett v. City of Yakima, et al., Case No. CV -10 -3092- RMP (E.D. Wash.), issued' on July 17, 2012. (d) Centralia, Washington, "Crime Risk in the Vicinity of a Sexually Oriented Business: A Report to the Centralia City Attorney's Office — Revised" (2004). (e) Des Moines, Washington, "Adult Use Study" (1984). (f) Bellevue, Washington, "Location of Adult Entertainment Uses — Background Materials" (1988). (g) Kelso, Washington, "Zoning for Sexually Oriented Businesses" (1993). (h) Kent, Washington, "Adult Use Zoning Study" (1982). (i) Seattle, Washington, "Adult Cabarets in Seattle" (2006). (j) Fort Worth, Texas, "Effects of Land Uses on Surrounding Property Values" (2004). (k) Austin, Texas, "Report on Adult Oriented Businesses in Austin" (1986). (I) Garden Grove, California, "Final Report to the City of Garden Grove: The Relationship Between Crime and Adult Business Operations on Garden Grove Boulevard" (1991). (m) Los Angeles, California, "Crime Related Secondary Effects of Sexually- Oriented Businesses: Report to the City Attorney" (2007). In addition to the above, the City of Yakima takes notice of the following cases and reports, some of which are specifically referenced above and attached to this memorandum, regarding adverse secondary effects of adult entertainment and adult entertainment businesses, together with other court decisions and reports that will be subject to review: Memorandum to Honorable Mayor and Members of the City Council • August 17, 2012 Page 6 Court decisions of City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), Young v. American Mini Theatres, 426 U.S. 50 (1976), and Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991), and others. Studies in other communities including but not necessarily limited to: Adams County, Colorado, "Adams County Nude Entertainment Study (1991 update); Austin, Texas, "Report on Adult Oriented Businesses in Austin" (1986); Centralia, Washington, "Crime Risk in the Vicinity of a Sexually Oriented Business: A Report to the Centralia City Attorney's Office — Revised" (2004); Chattanooga, Tennessee, "Community Protections Committee's Final Report on Vice in Hamilton County with Recommendations" (1997); Garden Grove, California, "Final Report to the City of Garden Grove: The Relationship Between Crime and Adult Business Operations on Garden Grove Boulevard" (1991); Cleveland, Ohio, Special Investigative Unit Report (1977); Dallas, Texas, "An Analysis of the Effects of SOBs on the Surrounding Neighborhoods in Dallas, Texas" (1997); Des Moines, Washington, "Des Moines Adult Use Study" (1984); El Paso, Texas, "Effects of Adult Entertainment Businesses on Residential Neighborhoods" (1986); Ellicottville, New York, "Adult Business Study" (1998); Fort Worth, Texas, "Survey of Appraisers Fort Worth & Dallas Effects of Land Uses on Surrounding Property Values" (2004); Indianapolis, Indiana, "Adult Entertainment Businesses in Indianapolis" (1984); Los Angeles, California, "Study of the Effects of the Concentration of Adult Entertainment Establishments in the City of Los Angeles" (1977); Minneapolis, Minnesota, "An Analysis of the Relationship Between Adult Entertainment Establishments, Crime, and Housing Values" (1980), • Memorandum to Honorable Mayor and Members of the City Council August 17, 2012 Page 7 State of Minnesota, "Report of the Attorney General's Working Group on the Regulation of Sexually Oriented Businesses" (1989); Newport News, Virginia, "Adult Use Study" (1996); New York City, New York, "Adult Entertainment Study" (1994); "Report on the Secondary Effects of the Concentration of Adult Use Establishments in the Times Square Area" (1994); Oklahoma City, Oklahoma, "Adult Entertainment Businesses in Oklahoma City: A Survey of Real Estate Appraisers" (1986); Phoenix, Arizona, "Adult Business Study" (1979); Seattle, Washington, "Adult Cabarets in Seattle" (2006).