TOWN OF NEWBURGH
 NOTICE OF PUBLIC HEARING
ON PROPOSED LOCAL LAW

	PLEASE TAKE NOTICE that there has been reintroduced before the Town Board of the Town of Newburgh in the County of Orange and State of New York on October 24, 2012, Introductory Local Law No. 7 of the Year 2012 entitled “A Local Law Amending Chapter 185 Entitled “Zoning” of the Code of the Town of Newburgh to Provide for the Regulation of Adult-Oriented Businesses”.  The local law sets forth extensive legislative findings with regard to the harmful secondary effects of adult-oriented businesses on the town.  The purpose and effect of the local law are to limit the harmful secondary effects of adult-oriented businesses by amending the Town of Newburgh Zoning Code to provide for the regulation of adult-oriented businesses. The Town’s intent in regulating adult-oriented businesses is not to restrict constitutionally-protected speech activities but rather to provide constitutionally sufficient alternate avenues for persons to engage in such activities in a manner consistent with the constitutions of the United States and New York State while addressing the unlawful, unhealthy and detrimental activities ancillary to such speech and ameliorating these secondary effects on the peace, good order, commercial viability and safety of Town residents and non-adult-oriented businesses.  The findings provide that the regulations are the least intrusive method available to ameliorate the negative secondary effects of adult-oriented businesses within the Town without infringing on constitutionally-protected speech activities.  The primary purposes enumerated by the local law are: 1. to preserve the character and quality of the life of the Town’s neighborhoods and business and maintain the viability of the Town’s alteration and improvement pursuant to the Comprehensive Plan Update; 2.  to ameliorate the documented adverse secondary effects that are ancillary to adult-oriented businesses, including, but not limited to: decreased property values; attraction of transients; parking and traffic problems; increased crimes against persons and property; loss of business for surrounding non-adult-oriented businesses; and deterioration of neighborhoods; 3.  to maintain property values; 4.  to prevent crime; 5. to safeguard the continued commercial viability of currently existing non-adult-oriented businesses; 6. to insure the continued commercial viability of the Town as a location for new non-adult-oriented businesses; 7. to restrict minors’ inadvertent exposure to nudity, specified anatomical areas or specified sexual activities; 8. to preserve and protect public hygiene, health and sanitation; and 9.  to maintain the general welfare, health, comfort and safety of Town residents and businesses.
 
An adult-oriented business is defined by the local law to include the use of a building, structure, or property for a business which includes the regular offering, for economic gain or other consideration, of adult materials or adult entertainment as a substantial or significant portion of its stock-in-trade for the purposes of sale, rental, lease, trade, gift or display of such adult materials or adult entertainment, including any restaurant, nightclub, bar, tavern, eating and drinking place or establishment, arcade, theater, video store, motel, hotel, or any other establishment that regularly offers, for economic gain or other consideration, adult entertainment, a retail store that offers adult materials as defined in the local law and any massage establishment.  The local law amends Section 185-10 of the Zoning Code to provide that a use meeting the definition of “adult-oriented business” shall additionally be subject to the supplementary regulations contained in a new Article XVI of the Zoning Code. The local law also includes definitions of “adult materials”, “adult entertainment”, “employee”, “financial expenditures”, “nudity”, “massage establishment, “non-adult materials”, “non-adult entertainment”, “sensitive site”, “substantial or significant portion” (which includes a 10 percent interior square footage “safe harbor” exception) and “zoning board of appeals.”  Massage establishment are defined as establishments having a fixed place of business where massages are administered for pay, including but not limited to massage parlors, sauna baths and steam baths, but  with the exception of (i) hospitals, nursing homes, medical clinics, or the offices of a physician, surgeon, chiropractor, osteopath, or duly licensed physical therapists, occupational therapists, or duly licensed massage therapists; (ii) barber shops, beauty salons or nail salons in which massages are administered only to the scalp, face, neck or shoulders; (iii) health clubs or fitness facilities and recreational membership clubs which have facilities for physical exercise, such as tennis courts, racquet ball courts, ice skating rinks, or exercise rooms, and which do not receive their primary source of revenue through the administration of massages.   The local law provides that massage establishments shall not be a permitted use within the Town of Newburgh.

The local law provides that adult-oriented businesses other than massage establishments are permitted to be situated within the B, IB or I zoning districts, but no adult-oriented business shall be located within 1,000 feet 1,000 feet of the property line of any sensitive site or of any boundaries of the RR, AR, R1, R2 or R3 residential zoning districts.  Sensitive sites are defined as churches, synagogues, mosques or other places of worship, schools, child or day nursery facilities, public or semi‑public parks or recreational facilities in existence as of September 15, 2012. Additionally, no adult oriented business shall be located within 500 feet of any other adult-oriented business.  The following additional regulations will apply:  no adult-oriented business shall be established or permitted in any building of which any part is used for residential purposes; no residential use shall be established in a building of which any part is used as an adult-oriented business; adult-oriented businesses shall conform to applicable bulk and supplemental regulations for the zoning districts and  the appropriate classification of permitted use or use subject to site plan review by the Planning Board; no more than one adult-oriented business permitted under this section shall be established on a zoning lot; the total interior square footage open to the general public of any adult-oriented business shall not exceed 10,000 square feet; signs and displays shall not depict or describe specified sexual activities, specified anatomical areas or nudity;  signs and displays visible from the outside of an adult-oriented business may be illuminated or composed of lighted material such as neon but shall not feature flashing illumination; during the period that an adult-oriented business is occupied, it shall be illuminated by sufficient natural or non-flashing artificial light to permit safe ingress and egress to and from the premises; each adult-oriented business offering entertainment consisting of live performances shall maintain adequate security during hours of operation to ensure the public peace and order, to employ not less than one uniformed security guard per every 50 or fewer patrons on the premises and not less than two uniformed security guards for over 50 patrons. 

Any establishment in existence or which has obtained vested rights to exist prior to the effective date of the local law which (a) has made financial expenditures for the purpose of operating or to commence operating an adult-oriented business and (b)  falls within the definition of an adult-oriented business; and (c)  is not in conformity with the requirements of the new Article
shall either conform to the requirements of the new Article or terminate its operation as an adult-oriented business within 2 years following the effective date of the local law or, if later, the date of issuance of a certificate of occupancy for a use which includes an adult-oriented business, or such later date as later provided.  Such nonconforming uses shall not be increased, enlarged, extended, or altered within the 2 year period or any extension thereof, except that the use may be changed to a conforming use. The Zoning Board of Appeals of the Town of Newburgh shall have the power to hear and decide applications submitted to the Board for the continuation of a non-conforming adult-oriented using the same procedures by which it hears applications for use and area variances. The Board, may permit an adult-oriented business subject to termination to continue for a limited period of time beyond the two-year period not to exceed three additional years, provided that:  (a)  an application is made by the owner of such adult-oriented business to the Board at least one hundred and twenty (120) days prior to the date on which such business must terminate; and (b)  the Board shall find, in connection with such adult-oriented business, that:  (i) the owner of such a business had made, prior to the non-conformity, substantial financial expenditures related to such business;  (ii) the owner has not recovered substantially all of such financial expenditures; and (iii) the period for which such business may be permitted to continue is the minimum period sufficient for the owner of such business to recover substantially all of such financial expenditures. The applicant shall bear the burden of proving by substantial evidence each item via competent expert and/or scientific testimony supported by reliable documentary proof, including audited financial data, regarding the subject adult-oriented business.  Should any nonconforming adult-oriented business cease operation for a period exceeding 6 consecutive months within the amortization period or at any other time, the adult-oriented business shall be deemed to terminate its nonconforming status and shall not be continued or reopened at the location unless the adult-oriented business is in full conformity with the provisions of the new Article.
 
	Under the local law, the following shall not be permitted on the premises of any adult‑oriented business  within the Town of Newburgh:  1.  appearance by a person knowingly or intentionally engaging in specified sexual activities; or 2.  the use of sound amplification equipment to amplify a description or discussion of nudity, specified anatomical areas or specified sexual activities if: (a) such description or discussion is audible beyond the exterior of the structure from which the description or discussion originates; or  (b)  such description or discussion is amplified in a public place.

Violations of the new Article are subject to enforcement and penalties as provided for in Code Section 185-52 and in case any adult-oriented business or massage establishment is operating or has been established in violation of this section or any regulations made under authority conferred hereby, the Town Board of the Town of Newburgh or, with its approval, the Building and Code Enforcement Officer or other proper official, in addition to other remedies, may institute any appropriate action or proceedings to prevent, correct or abate such violation

The proposed adoption of the Local Law has been determined to be a Type I Action under the State Environmental Quality Review Act regulations and the Town Board has announced its intent to act as the Lead Agency.

 	PLEASE TAKE FURTHER NOTICE that pursuant to Section Twenty of the Municipal Home Rule Law, a public hearing will be held on the aforesaid proposed Local Law before the Town Board of the Town of Newburgh at the Town Hall at 1496 Route 300 in the Town of Newburgh, New York at 7:00 o'clock p.m. on November 13, 2012 at which time all interested parties will be heard.

	The Town of Newburgh provides reasonable accommodations for the disabled. Disabled individuals who need assistance in order to participate should contact the Town Clerk’s office at (845) 564-4554.  Advance notice is requested

Dated:	October 26, 2012	

						Andrew J. Zarutskie
						Town Clerk, Town of Newburgh