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Thread: Defining Adult Retail

  1. #1
    Cyburbian Budgie's avatar
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    Defining Adult Retail

    Here's an interesting dialema regarding defining adult retail uses. A majority of jurisdictions that have adult oriented business land use controls define adult retail uses by a percentage of something (display floor area, gross receipts, stock in trade, etc...). Percentages, particularly ones that may be physically measured at any time, ensure that every business is treated fairly and makes the zoning laws easy to administer. However, some simply use the standard of "substantial or significant" portion of the business consisting of adult oriented material. This provides the governing body with some flexibility, but with that flexibility comes the difficult task of treating each business equitably. At what point has a business reached the "substantial or significant" threshold and what if they slowly increase their stock over time.

    It is clear that negative secondary effects of adult uses can be sufficient enough to warrant land use controls. However, the degree of negative effects depends on the community (which encompasses many variables) and the type of business (entertainment, personal services and retail). Negative secondary effects typically include:

    1. There is a significantly higher occurrence of crime in areas where adult-oriented businesses are located as compared to similar area without such businesses;

    2. There is a substantial decrease in property values for both residential and commercial properties in neighborhoods where adult uses exist as compared to similar areas without such businesses; and

    3. A concentration of adult uses attracts a transient population, which compounds the problems associated with criminal activity.

    Here's my question. At what threshold (portion of business devoted to adult materials) does an adult retail use start to exhibit the negative secondary effects that make zoning provisions a legitimate use of the police power?

    My community is considering a 2% of display floor and wall area as the point at which a business is an adult use, which is supposed to exhibit negative secondary effects. I've argued that a video or book store that has 5% for example, will likely not cause the negative secondary effects. You don't see an increase in crime, vagrancy, prostitution or property value loss near chain video stores that have a "back room".

    The second question is, are percentages legally defensible. Some legal experts say that the "substantial and significant" language, which has been upheld by the Supreme Court, is the best way to go. But with this vague a term, substantive due process may be violated by arbitrary decisions due to the "substantial and significant" grey area. However, establishing a measurable percentage may be arbitrary without significant study, which most communities are not able or willing to undertake. In regard to percent thresholds, the question then becomes, is there a definable community standard and if that standard is not me will there be negative effects.

    This is a real quandry. Any examples where percentages have been documented relative to the negative effects? Legal opinions regarding the use of percentages to define adult uses? I'm always looking for new information on this topic. It's become a hobby of mine.

  2. #2
    Cyburbian SGB's avatar
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    I haven't kept current on the SE studies out there since 2002.

    I do have my list of SE resources from back then in a MSWord, PDF and HTML format, including web links.

    If you think these would be of use, PM me and I'll send them along.
    All these years the people said he’s actin’ like a kid.
    He did not know he could not fly, so he did.
    - - Guy Clark, "The Cape"

  3. #3
    Corn Burning Fool giff57's avatar
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    Interesting, this area is also an interest of mine, but I have not kept up. I assume you have read the PAS report on the topic. The kind of thing you are looking for would take a ton of field research in many different markets. I cannot think of an easy way to get it. I know the research cited in the PAS report was out of big city areas. The new trend of plopping these things along the interstate brings on a whole new set of issues.

    Have you thought of using conditional use permits? That is one way I can think of that might work. You could have different conditions based upon the percentage. If you were creative with the conditions you could solve the chain video issue by requiring things they already do.

    My $.02
    “As soon as public service ceases to be the chief business of the citizens, and they would rather serve with their money than with their persons, the State is not far from its fall”
    Jean-Jacques Rousseau

  4. #4
    Cyburbian Budgie's avatar
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    Quote Originally posted by giff57
    Have you thought of using conditional use permits? That is one way I can think of that might work. You could have different conditions based upon the percentage. If you were creative with the conditions you could solve the chain video issue by requiring things they already do.
    The problem with a conditional use permit is that question of consistency between applications and showing a nexus between the negative secondary effects and the conditions that are imposed. When it comes to this contentious issue, I think having a set of well documented, clear, black and white set of conditions that are not at the discretion of the Planning Commission or City Commission is the way to go. Make it strong and administrative so that it does not require a vote everytime.

    We are currently trying to regulate location. The appointed officials, elected officials and some in the public would like to adopt performance and site design standards in the near future. If we only apply these types of standards to only adult oriented businesses, we must tie them to deleterious secondary effects. If we adopt these regulations on aesthetic and neighborhood compatibility rational, then we should not single out adult uses. In a community where there are few rational site design, architectural design and performance standards, it may be a very difficult battle.

    Your observation is not directly tied to the defining of adult retail uses by percentages for the purpose of minimizing deleterious secondary effects.

  5. #5
    Corn Burning Fool giff57's avatar
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    Quote Originally posted by Budgie
    Your observation is not directly tied to the defining of adult retail uses by percentages for the purpose of minimizing deleterious secondary effects.

    That is because I recognize the difficulty in doing that. I hope someone has done some research. Because without data of secondary effects from various locations with varying percentages, I'm afraid you will have to guess, like everyone else so far.

    Good luck and keep us posted.
    “As soon as public service ceases to be the chief business of the citizens, and they would rather serve with their money than with their persons, the State is not far from its fall”
    Jean-Jacques Rousseau

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