HomeMy WebLinkAboutOrdinance No. 3083-2019 Substitute_____________________________________________________________________________________
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Sponsored by: Councilmembers Pettey
and Knackstedt
CITY OF KENAI
ORDINANCE NO. 3083-2019 (Substitute)
AN ORDINANCE OF THE COUNCIL OF THE CITY OF KENAI, ALASKA, AMENDING KENAI
MUNICIPAL CODE 14.20.175 - ADULT BUSINESSES, TO INCREASE THE BUFFER
DISTANCES BETWEEN ADULT BUSINESSES AND SENSITIVE USES FROM 500 FEET TO
1,000 FEET AND DEFINE SENSITIVE USES AND AMEND KENAI MUNICIPAL CODE
14.22.010-LAND USE TABLE, TO ADD ADULT BUSINESSES.
WHEREAS, the City currently permits adult businesses in the Central Commercial, General
Commercial, Light Industrial and Heavy Industrial Zones as long as they are located more than
500 feet from other adult businesses, churches or public or private schools; and,
WHEREAS, a review of the zoning restrictions on adult businesses in the City show that they are
currently inadequate to sufficiently protect the City’s residents, youth, business community and
visitors from the convincingly demonstrated secondary effects of adult businesses, which is a
compelling government interest; and,
WHEREAS, the Alaska Supreme Court recently concluded in Club Sinrock, LLC v. Municipality
of Anchorage, Office of the Municipal Clerk, Supreme Court No. S-17068 (Alaska, 2019) that
while Alaska’s free speech clause is more protective of individual rights than the federal
constitution, the government need not wait for harm to arise before enacting legislation aimed at
combating harmful secondary effects of adult businesses, but must approach the issue with an
evidence based analysis demonstrating how restrictions are narrowly tailored to meet a
compelling government interest; and,
WHEREAS, in Club Sinrock, the Court held that restrictions on adult businesses may satisfy the
constitutional protections of free speech by relying on solid evidence of other communities
experiences or specific studies presented to the legislative body, and,
WHEREAS, the U.S. Supreme Court in Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976)
and Renton v. Playtime Theatres, 475 U.S. 41 (1886) identified harmful secondary effects of
increased crime, decreased property values and urban blight; and,
WHEREAS, in Sex, But Not the City: Adult-Entertainment Zoning, the First Amendment, and
Residential and Rural Municipalities, Mathew L. McGinnis, 46 B.C.L. Rev. 625 (2005), the Law
Review Article cited that rural and predominately residential municipalities are especially
susceptible to the negative secondary effects of adult businesses and that adult businesses
arguably pose a greater risk to the quality of life in these communities than in larger cities; and,
WHEREAS, a 2005 committee report, Adult Entertainment Zoning and Licensing Committee
Report to the City of Mount Vernon, identified schools, businesses where or areas where youth
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are likely to be present and churches, among other uses, as sensitive to the secondary effects of
adult businesses; and,
WHEREAS, this same report identified secondary negative impacts to include increased crime,
creation of an atmosphere for crime, declining property values, deterioration of areas,
incompatibility with other uses, negative land use impacts, negative impacts on quality of life,
declining tourism, human trafficking associations, and harm to the public’s health safety and
welfare; and,
WHEREAS, within the American Planning Association’s Report Everything You Always Wanted
to Know about Regulating Sex Businesses, xxx Report No. 495/496, by Eric Damian Kelly and
Connie Cooper, a survey from Rochester/ Monroe County New York showed the impact from
adult entrainment businesses on neighboring properties stopped between 1000 feet and 1500
feet away; and,
WHEREAS, the sponsor and City staff have reviewed studies and articles on adult businesses,
and made these available to the Council and public, including Sex, But Not the City: Adult-
Entertainment Zoning, the First Amendment, and Residential and Rural Municipalities, Mathew L.
McGinnis, 46 B.C.L. Rev. 625 (2005), a 2005 committee report, Adult Entertainment Zoning and
Licensing Committee Report to the City of Mount Vernon; the American Planning Association’s
Report Everything You Always Wanted to Know about Regulating Sex Businesses, xxx Report
No. 495/496, by Eric Damian Kelly and Connie Cooper, all of which contain and discuss numerous
other studies and reports; and,
WHEREAS, the zoning restrictions proposed reduces the available property for adult businesses
in the City by less than one percent and leaves sufficient property available within the City, for
locating adult businesses, at least five percent, especially given the rural and residential nature
of the small community and amount of lands within the City that are unavailable for commercial
development; and,
WHEREAS, it is in the best interest of the City, and a compelling government interest, to restrict
the location of adult businesses due to their demonstrated negative secondary effects to the
proposed zones and outside 1000 feet of sensitive uses to protect residents, youth, businesses
and visitors from the negative secondary effects of adult businesses; and,
WHEREAS, this buffer distance is consistent with other buffer distances from other property uses
contained in the City’s code; and,
WHEREAS, further limitations may be recommended in the future, but it is difficult to provide
reasonable alternative avenues of communication, locations within the City, given the unique rural
makeup of the City’s lands, with very limited available commercial space; and,
WHEREAS, the restriction imposed are narrowly tailored to meet the City’s compelling
government interest as even an increase in law enforcement presence and action at potential
adult business sites would not be sufficient to combat many of the negative secondary effects
such as declining property values, deterioration of areas, incompatibility with other uses, negative
land use impacts, negative impacts on quality of life, protecting youth and declining tourism; and,
WHEREAS, many other municipalities in Alaska and across the nation have successfully utilized
a 1000 foot buffer from sensitive uses; and,
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WHEREAS, it is not the intent of this ordinance to suppress any free speech activities protected
by the state and federal constitution, but only to enact regulations addressing the secondary
effects of adult businesses; and,
WHEREAS, at the (date) _____ Planning and Zoning Commission Meeting, the Commission
recommended _____________.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA,
as follows:
Section 1. Amendment of Section 14.20.175 of the Kenai Municipal Code: That Kenai
Municipal Code, Section 14.20.175 – Adult Businesses, is hereby amended as follows:
14.20.175 Adult businesses.
(a) Definitions. For the purpose of this chapter, the following definitions shall apply unless
the context clearly indicates or requires a different meaning:
(1) “Adult bookstore” means a commercial establishment where at least fifty-one
percent (51%) of its interior floor area or retail merchandise is devoted to the sale, rent,
lease, inspection, or viewing of books, films, video cassettes, DVDs, magazines, other
periodicals or digital presentations whose dominant theme is the actual or simulated
specified sexual activities, display or exhibition of specified anatomical areas, removal of
articles of clothing, or total nudity.
(2) “Adult cabaret” means a restaurant, coffee house, bar or cabaret which features
topless dancers, strippers, male or female impersonators, or similar entertainers who
provide live adult entertainment for commercial purposes.
(3) “Adult entertainment” means any motion picture, live performance, display, or dance
of any type whose dominant theme is actual or simulated specified sexual activities,
display or exhibition of specified anatomical areas, removal of articles of clothing, or total
nudity, offered for commercial purposes.
(4) “Adult mini-theater” means an enclosed building with a capacity of less than fifty (50)
persons used for displaying adult entertainment through films, video, or other motion
pictures for commercial purposes.
(5) “Adult motion picture theatre” means an enclosed building with a capacity of fifty
(50) or more persons used for displaying adult entertainment through films, video, or
other motion pictures for commercial purposes.
(6) “Adult business” means any adult bookstore, adult cabaret, adult mini-theater, or
adult motion picture theater.
(7) “Commission” means the City of Kenai Planning and Zoning Commission.
(8) “Operator or manager” means any natural person responsible for the actual
operation and management of an adult business.
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(9) “Sexual conduct” means acts of:
(i) Sexual intercourse within its ordinary meaning, occurring upon any penetration,
however slight; or
(ii) Any penetration of the vagina or anus, however slight, by an object; or
(iii) Any contact between persons involving the sex organs of one person and the
mouth or anus of another; or
(iv) Masturbation, manual or instrumental, of oneself or of one person by another;
or
(v) Touching of the sex organs or anus, whether clothed or unclothed, of oneself or
of one person by another.
(10) “Specified anatomical areas” means:
(i) Less than completely and opaquely covered human genitals, pubic region,
buttocks, and female breast below a point immediately above the top of the areola;
and
(ii) Human male genitals in a discernible erect state, even if opaquely covered.
(11) “Specified sexual activities” means simulated or actual:
(i) Display of human genitals in a state of sexual stimulation or arousal;
(ii) Acts of masturbation, sexual intercourse, sodomy, bestiality, necrophilia,
sadomasochistic abuse, fellatio, or cunnilingus; and
(iii) Fondling or erotic touching of human genitals, pubic region, buttocks, or female
breasts.
(12) “Sensitive Use” means a church or other place of worship, a public or private school
(licensed pre-K through 12th grade) or businesses where or areas where youth are likely
to be present (limited to public parks, youth recreational centers, public playgrounds,
public libraries).
(b) Location Requirements.
(1) Adult businesses may be located only in the CC, CG, IL and HI zones. Additionally,
no adult business may be located within one thousand [FIVE HUNDRED FEET]
([5]1000') of another adult business, [A CHURCH OR OTHER PLACE OF WORSHIP
OR PUBLIC OR PRIVATE SCHOOL] or sensitive use.
(2) The distances specified in this section shall be measured in a straight line, without
regard to intervening structures, from the nearest point of the premises in which the
proposed adult business is to be established to the nearest property line of a use listed
above.
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(c) Development and Operation Standards. The following development and operation
standards shall apply to adult businesses:
(1) No adult business shall be located in any temporary or portable structure.
(2) Trash dumpsters shall be enclosed by a screening enclosure so as not to be
accessible to the public.
(3) No exterior door or window on the premises shall be propped or kept open at any
time while the business is open, and any exterior windows shall be covered with opaque
covering at all times.
(4) Permanent barriers shall be installed and maintained to screen the interior of the
premises from public view for each door used as an entrance or exit to the business.
(5) The entire exterior grounds, including the parking lot, shall be lighted in such a
manner that all areas are clearly visible at all times.
(6) Signage shall be governed by KMC 14.20.220 (Signs).
(7) All entrances to an adult business shall be clearly and legibly posted with a notice
indicating that persons under eighteen (18) are prohibited from entering the premises.
(8) No adult business shall be operated in any manner that permits the observation of
any persons or material depicting, describing or related to specified sexual activities or
specified anatomical areas, inside the premises, from any public way or from any location
outside the building or area of such establishment. This provision shall apply to any
merchandise, display, decoration, sign, show window or other opening.
(9) Each adult business shall conform to all applicable laws and regulations.
(10) The adult business shall not operate or be open between the hours of 2:00 a.m.
and 9:00 a.m.
(11) Amplified sound may not be broadcast outside the building and structures used for
the adult business.
(12) No tip or gratuity offered or accepted by an adult entertainer may be offered or
accepted prior to any live performance, dance or exhibition provided by the adult
entertainer. No adult entertainer performing live upon any stage shall be permitted to
accept any form of gratuity offered directly to the entertainer by any member of the public.
Any gratuity offered to any adult entertainer performing live upon any stage must be
placed into a receptacle provided for receipt of gratuities by the business or through a
manager on duty on the premises. Any gratuity or tip offered to any adult entertainer
conducting any live performance, dance or exhibition in or about the nonstage area of
the adult business shall be placed into the hand of the adult entertainer or into a
receptacle provided by the adult entertainer, and not upon the person or into the clothing
of the adult entertainer.
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(13) No live entertainer shall engage in acts of sexual conduct.
(14) An adult cabaret shall provide separate dressing room facilities for performers,
which are exclusively dedicated to the performers’ use.
(15) An adult cabaret shall provide an entrance/exit for performers, which is separate
from the entrance/exit used by patrons.
(16) An adult cabaret shall provide access for performers between the stage and the
dressing rooms, which are completely separated from the patrons. If such separate
access is not physically feasible, the cabaret shall provide a minimum three (3) foot wide
walk aisle for performers between the dressing room area and the stage, with a railing,
fence or other barrier separating the patrons and the performers that is capable of
preventing any physical contact between patrons and performers.
(17) All indoor areas of the adult cabaret where patrons or members of the public are
permitted, excluding restrooms, shall be open to view by management at all times.
(d) If any portion of this chapter, or its application to any person or circumstances, is held
invalid, the validity of this chapter as a whole, or any portion thereof, and its application to
other persons or circumstances, shall not be affected.
(e) Nonconforming Use. Any adult business operating at the time of the effective date of the
ordinance codified in this section shall be considered a nonconforming use under KMC
14.20.050. However, a business that only periodically engages in adult business activity may
continue to operate as a nonconforming use at the same level of activity it operated for the
one (1) year period prior to the adoption of this ordinance. For example, a bar or restaurant
that operated as an adult cabaret five (5) times in the previous one (1) year period would be
allowed to operate as a nonconforming use five (5) times per year.
Section 2. Amendment of Section 14.22.010 of the Kenai Municipal Code: That Kenai
Municipal Code, Section 14.22.010 – Land Use Table, is hereby amended as follows:
14.22.010 Land use table.
LAND USE TABLE
KEY: P = Principal
Permitted Use
C =
Conditional
Use
S = Secondary
Use
N = Not
Permitted
NOTE: Reference footnotes on
following pages for additional
restrictions
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ZONING DISTRICTS
LAND USES ALI C RR RR-
1 RS RS-
1
RS-
2 RU CC CG IL IH ED R TSH LC CMU
RESIDENTIAL
One-Family Dwelling N C18 P P P P P P P21 S1 S2 S2 C22 P P P S1/C21
Two-, Three-Family Dwelling N C18 P P P P P P P21 S1 C C C22 P P P S1/C21
Four-Family Dwelling N C18 P C3 ,
29
P N N P P21 S1 C C C22 N P C S1/C21
Five-, Six-Family Dwelling N C18 C3 N P N N P P21 S1 C C N N P C S1/C21
Seven- or More Family Dwelling N C18 C3 N C3 N N P P21 S1 C C N N P C S1/C21
Mobile Home Parks6 N N C N C C C C C C C C N C N N C
Planned Unit Residential
Development7
N C18 C C29 C C C C C C C C N C C C C
Townhouses4 N C18 C3 C3 ,
29
C3 C3 C3 C3 C C C C C22 C C C C
Accessory Building on Parcel
Without Main Building or Use
(See KMC 14.20.200)
N N C C C C C C N N N N N N C N N
COMMERCIAL
Airport Compatible Uses P N N N N N N N C C C C N N N C C
Adult Businesses N N N N N N N N P31 P31 P31 P31 N N N N N
Automotive Sales C N C N N N N C P P P P N N N N P
Automotive Service Stations C N C N N N N C P P P P N C N N P
Banks C N C N C N N C P P P C N C C C P
Business/Consumer Services C N C C C N N C P P P C N C C C P
Commercial Recreation N N C N C N N C P P C C N P C C P
Guide Service C N C N C N N C P P P P N P P C P
Hotels/Motels C N C N C N N C P P P C N C P C P
Lodge C N C N C N N C P P P C N P P C P
Marijuana Cultivation Facility,
Standard 30
N N N N N N N N N C C C N N N C N
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ZONING DISTRICTS
LAND USES AL
I C R
R
RR
-1 RS RS
-1
RS
-2 RU C
C
C
G IL IH ED R TS
H
L
C
CM
U
Marijuana Cultivation Facility,
Standard 30
N N N N N N N N N C C C N N N C N
Marijuana Product Manufacturing
Facility 30
N N N N N N N N N C C C N N N N N
Marijuana Testing Facility 30 N N N N N N N N C C P P N N N C C
Professional Offices C N C C C N N P P P P P N C P P P
Restaurants C N C N C N N C P P P C N C C C P
Retail Business C N2
6
C N C N N C P P P P S2
4
S2
4
C C P
Retail Marijuana Store 30 N N N N N N N N N C C C N N N C C
Theaters N N C N C N N C P P C C N P C C P
Wholesale Business C N C N C N N C C P P P N S2
4
C C N
INDUSTRIAL
Airports C P20 C N C N N C C C C C N C N N C
Necessary Aviation Facilities P P C C C C C C P P P P C P C P P
Automotive Repair P N C N C N N C P P P P N N N N P
Gas Manufacturer/Storage C9 N N N C N N N N N C9 C9 N N N N N
Manufacturing/Fabricating/Assembl
y
P N C N C N N C C P P P N C C N C
Mini-Storage Facility C N C N C N N C C P P P N N N C C
Storage Yard C N C N C N N C C P P P N N N N C
Warehouses C N C N C N N C N P P P N C N N N
PUBLIC/INSTITUTIONAL
Assisted Living N C C C C C C C C C C C C C C C C
Churches* N C P10 P10 P1
0
P10 P10 P10 P10 P10 C C P P1
0
P P P
Clinics N C C N C C C C P P P C C C C P P
Colleges* N C C C29 C C C C P P C C P C C C P
Elementary Schools* N C C C29 C C C C P P C C P C C C P
Governmental Buildings P C C C29 C C C C P P P C P C C P P
High Schools* N C C C29 C C C C P P C C P C C C P
Ordinance No. 3083-2019
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ZONING DISTRICTS
LAND USES AL
I C R
R
RR
-1 RS RS
-1
RS
-2 RU C
C
C
G IL IH ED R TS
H
L
C
CM
U
Hospitals* N C C N C C C C P P P C C C C C P
Libraries* N C C C29 C C C C1
2
P P P C P C P C P
Museums C C C C29 C C C C P P P C P C P C P
Parks and Recreation N P C C29 C C C C P P P P P P P C P
MISCELLANEOUS
Animal Boarding/Commercial
Kennel13
C C C N C C N N C C C C N C N C C
Assemblies15 (Large: Circuses,
Fairs, etc.)
P C C N C C C C P15 P15 P1
5
P1
5
P1
5
C P N P15
Bed and Breakfasts N C C C C C C C C C C C N P C C P
Cabin Rentals N C C N C N N N P P P C N P P C P
Cemeteries P C C N C N N N N C C C N C C N N
Communications Towers and
Antenna(s), Radio/TV
Transmitters/Cell Sites** 28
C P C N C C C C P P P P P C C C C
Crematories/Funeral Homes N N C N C N N C C C C C N C C C C
Day Care Centers12 N C C C29 C C C C P P P C C C C P P
Dormitories/Boarding Houses N C C N C C C P P21 S C P P2
3
C C C P
Essential Services P P P P P P P P P P P P P P P P P
Farming/General Agriculture*** N P P N N N N N N N N P N P N N N
Fraternal Organizations/ Private
Clubs/Social Halls and Union Halls
N N C N C C C C P P P C N C P C P
Greenhouses/Tree Nurseries13 N C C N C C C C P P P C N C C C P
Gunsmithing, Taxidermy N N C C C C C C P P P P N C P P P
Nursing, Convalescent or Rest
Homes
N N C N C C C C P P C C C C C C P
Parking, Public Lots12 C C C N C C C C C C C C C C C C C
Ordinance No. 3083-2019
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ZONING DISTRICTS
LAND USES ALI C RR RR-
1 RS RS-
1
RS-
2 RU CC CG IL IH ED R TSH LC CMU
Personal Services25 N C C N C C C C P P P P C C P P/C27 P
Recreational Vehicle Parks N C C N C N N C C C C C N C C N C
Subsurface Extraction of Natural
Resources16
C C C C C C C C C C C C N C N N N
Surface Extraction of Natural
Resources17
C C C N C N N C N C C C N C N N N
* See 42 USCA Sec. 2000cc (Religious Land Use and Institutionalized Persons Act of 2000)
** See 42 Telecommunications Act of 1996, Sec. 704(a)
*** See, however, the limitations imposed under KMC 3.10.070
Footnotes:
1 Allowed as a secondary use except on the ground floor of the part of the building fronting
on collector streets and major highways. Commercial or industrial which falls under the
landscaping/site plans requirements of KMC Chapter 14.25 shall include any secondary
uses in the landscaping and site plans.
2 One (1) single-family residence per parcel, which is part of the main building.
3 Allowed as a conditional use, subject to satisfying the following conditions:
a The usable area per dwelling unit shall be the same as that required for dwelling units
in the RS Zone;
b The site square footage in area must be approved by the Commission;
c Yards around the site, off-street parking, and other development requirements shall
be the same as for principal uses in the RR Zone;
d Water and sewer facilities shall meet the requirements of all applicable health
regulations;
e The proposed dwelling group will constitute a residential area of sustained desirability
and stability, will be in harmony with the character of the surrounding neighborhood,
and will not adversely affect surrounding property values;
f The buildings shall be used only for residential purposes and customary accessory
uses, such as garages, storage spaces, and recreational and community activities;
g There shall be provided, as part of the proposed development, adequate recreation
areas to serve the needs of the anticipated population;
h The development shall not produce a volume of traffic in excess of the capacity for
which the access streets are designed;
i The property adjacent to the proposed dwelling group will not be adversely affected.
4 See “Townhouses” section.
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5 See “Mobile Homes” section.
6 Allowed as a conditional use, subject to “Mobile Homes” section; and provided, that any
mobile home park meets the minimum Federal Housing Authority requirements.
7 See “Planned Unit Residential Development” section.
8 Allowed as a conditional use; provided, that the proposed location and the characteristics
of the site will not destroy the residential character of the neighborhood.
9 Allowed as a conditional use; provided, that all applicable safety and fire regulations are
met.
10 Provided that no part of any building is located nearer than thirty (30) feet to any adjoining
street or property line.
11 Allowed as a conditional use; provided, that no part of any building is located nearer
than thirty (30) feet to any adjoining street or property line; and provided further, that the
proposed location and characteristics of the use will not adversely affect the commercial
development of the zone.
12 Allowed as a conditional use; provided, that the following conditions are met:
a The proposed location of the use and the size and characteristics of the site will
maximize its benefit to the public;
b Exits and entrances and off-street parking for the use are located to prevent traffic
hazards on public streets.
13 Allowed as a conditional use; provided, that setbacks, buffer strips, and other provisions
are adequate to assure that the use will not be a nuisance to surrounding properties. The
Commission shall specify the conditions necessary to fulfill this requirement. Animal
boarding and commercial kennels require a kennel license (see KMC Chapter 3.15).
14 Allowed as a conditional use; provided, that no indication of said use is evident from the
exterior of the mortuary.
15 Allowed; provided, that the following conditions are met:
a An uncleared buffer strip of at least thirty (30) feet shall be provided between said
use and any adjoining property in a residential zone.
b Exits and entrances and off-street parking for the use shall be located to prevent
traffic hazards on the public streets.
16 See “Conditional Uses” section.
17 See “Conditional Use Permit for Surface Extraction of Natural Resources” section.
18 Conditional use allowed only on privately held property. Not allowed on government
lands.
19 Reserved.
20 The airport related uses allowed under this entry are aircraft approach and departure
zones pursuant to KMC 14.20.070(a), except that for properties contained inside the airport
perimeter fence or having access to aircraft movement areas, taxiways or parking aprons,
FAA authorized uses are allowed.
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21 Developments for use shall be the same as those listed in the Development
Requirements Table for the RU/TSH Zones.
22 Allowed as a conditional use in conjunction with a permitted use in the ED Zone.
For example, housing for teachers or students for a school in the zone.
23 Allowed as an accessory use in conjunction with a permitted use in the ED Zone.
For example, a dormitory used to house students for a school or educational facility.
24 Retail businesses allowed as a secondary use in conjunction with the primary use (e.g.,
a gift shop or coffee shop within another business).
25 Art studios, barbers, beauticians, tattoo parlors, dressmakers, dry cleaners and self-
service laundries, fitness centers, photographic studios, tailors, tanning salons and
massage therapists.
26 Food services are allowed on a temporary or seasonal basis of not more than four (4)
months per year.
27 Personal services not set forth in the below matrix are conditional uses.
Limited Commercial Zone
Personal Services Permitted (P) Conditional Use
(C)
Art Studios X
Barbers X
Beauticians X
Dressmakers X
Dry Cleaners X
Fitness Centers X
Massage Therapist X
Photographic Studios X
Self-Service Laundries X
Tailors X
Tanning Salons X
Tattoo Parlors X
28 Communications tower/antenna(s) allowed as a principal permitted (P) use if the
applicable conditions set forth in KMC 14.20.255 are met or a conditional use (C) if the
applicable conditions set forth in KMC 14.20.150 and 14.20.255 are met.
29 Use allowed only for those parcels that abut the Kenai Spur Highway. The access
to any such parcel must be either from: (a) driveway access on the Kenai Spur Highway; or
(b) driveway access from a dedicated right-of-way and that driveway access is not more
than two hundred seventy-five (275) feet as measured from the constructed centerline of
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the Kenai Spur Highway to the center of the driveway access as shown on an as-built
drawing/survey of the parcel.
30 See marijuana regulations , KMC 14 .20.230-Home Occupations , 14 .20 .320-
Definitions, 14.20.330-Standards for commercial marijuana establishm e nts .
31 See 14.20.175-Adult Businesses . no adult business may be located within one thousand
feet (1 ,000') of another adult business , or sensitive use . "Sensitive Use" means a church or
other place of worship , a public or private school (licensed pre-K through 121h grade) or
businesses where or areas where youth are likely to be present (limited to public parks ,
youth recreational centers, public playgrounds, public libraries).
Section 3, Severability: That if any part or provision of this ordinance or application thereof to
any person or circumstances is adjudged invalid by any court of competent jurisdiction , such
judgment shall be confined in its operation to the part, provision , or application directly involved
in all controversy in which this judgment shall have been rendered, and shall not affect or impair
the valid ity of the remainder of this title or application thereof to other persons or circumstances.
The City Council hereby declares that it would have enacted the remainder of th is ordinance even
without such part, provision , or application.
Section 4. Effective Date : That pursuant to KMC 1 .15 .0?0(f), this ordinance shall take effect
30 days after enactment.
ENACTED BY THE COUNCIL OF THE CITY OF KENAI , ALASKA, this 2nd day of October, 2019.
ATTEST:
BRIAN GABRIEL SR., MAYOR
Introduced : August 2 1, 2019
Public Hearing: September 4, 2019
Enacted : October 2, 2019
Effective: November 1, 2019
New Text Underlined ; [DELETED TEXT BRACKETED]
MEMORANDUM
TO: Mayor Brian Gabriel and Kenai City Council
FROM: Glenese Pettey, Council Member
DATE: August 26, 2019
SUBJECT: Ordinance No. 3083-2019 – Adult Businesses
____________________________________________________________________________
I decided to sponsor Ordinance No. 3083-2019 after it became evident that our City Code, as
currently written, does not adequately protect our residents from the secondary effects of adult
businesses. I have attached an exhibit that provides an example of one area within our City that,
as our Code is currently crafted, would allow adult business establishments. While municipalities
are mandated to provide sufficient area inside their boundaries where adult business could be
located, allowing those businesses close to sensitive uses where the secondary effects would
harm other property uses does not support the vision we have for our City.
Our Comprehensive Plan – Imagine Kenai 2030 – contains eight primary goals. To successfully
implement three of these goals, the Code must be changed as proposed by this Ordinance.
Goal 1 – Quality of Life: Promote and encourage quality of life in Kenai, Objective Q-4 states that
the City should promote the siting and design of land uses that are in harmony and scale with
surrounding uses. Based on the attached exhibit, it is clear that the siting of adult businesses
allowed under our current Code is not in harmony with many of our existing land uses.
Goal 2 – Economic Development: Provide economic development to support the fiscal health of
Kenai, Objective ED-3 states that the City should use regional economic and workforce statistics
to match the most suitable type of industry for particular areas and then market those areas. The
retail sector of the City of Kenai is the primary driver of sales in the City and is a strong indicator
of the economic health of our community. The City should continue to market and incentivize that
sector in our core commercial area. Adult entertainment businesses located in this area would
limit its attractiveness for many businesses and make incentives and marketing much less
effective.
Goal 3 – Land Use: Develop land use strategies to implement a forward-looking approach to
community growth and development, Objective LU-1 states the City should establish siting and
Page 2 of 2
Ordinance No. 3083-2019 – Adult Businesses
design standards so that development is in harmony and scale with surrounding uses. In addition
to quality of life, it is clear the City must consider future growth and development when siting
businesses which may share future access by frontage roads or trails with existing uses such as
schools, neighborhoods, and other land uses which serve sensitive populations and which may
require separation from adult businesses.
The proposed Ordinance provides a solution in accordance with the goals of the City’s
Comprehensive Plan – Imagine Kenai 2030, while providing sufficient area inside City boundaries
where adult business could be located.
Your consideration is appreciated.
Required Zone Locations forAdult BusinessesThis map is for graphic representationonly and the City of Kenai assumes noresponsibility for errors on this map.It is an approximation of sensitive usesdescribed under Ordinance 3079-2019..August 20190 4,000 8,0002,000FeetLEGENDZones Allowing Adult BusinessesCentral CommercialGeneral CommercialHeavy IndustrialLight IndustrialBuffers Excluding Adult BusinessesCurrent City Code(500 feet from churches and schools)Ordinance 3079-2019(1,000 feet from churches, schools, and sensitive uses)
MEMORANDUM
TO: Mayor Brian Gabriel and Kenai City Council
FROM: Council Members Pettey and Knackstedt
DATE: August 29, 2019
SUBJECT: Ordinance No. 3083 – 2019 (Substitute)
____________________________________________________________________________
This Substitute Ordinance adds adult businesses to the Land Use Table. For unknown reasons,
adult businesses have never been placed in the Land Use Table similar to other land uses. This
amendment will add clarity to the code and make it easier for the public to understand where adult
businesses may be located.
Your consideration is appreciated.
MEMORANDUM
TO: Mayor Brian Gabriel and Kenai City Council
FROM: Scott Bloom, City Attorney
DATE: March 12, 2019
SUBJECT: Ordinance No. 3083 - 2019
____________________________________________________________________________
The Alaska Supreme Court recently issued a decision in Club SinRock, providing that Article I,
Section 5 of the Alaska Constitution, protecting free speech, includes the protection of nude
dancing, and affords more protection in this regard than the federal constitution. The Court held
that it will apply strict scrutiny to regulations restricting nude dancing, and that any such
regulations must be narrowly tailored to achieve the desired goals. However, the Court recognized
that municipalities have a compelling interest in “combating” the secondary effects of adult
businesses. The Court requires an evidence based analysis that shows how restrictions are
“narrowly tailored to meet specific, compelling government interests.” The Court held that this can
be satisfied by relying on “solid” evidence from other communities or studies presented to the
Council. Further, in regulating adult businesses, the Council must show evidence of potential
harm and how “non-infringing” law enforcement techniques are unavailable or unlikely to be
effective. Federal case law also provides guidance, suggesting that under federal law, allowing
adult businesses on at least 5% of property within a municipality meets aspects of federal zoning
requirements in this regard. The two cases expressing these holdings are presented in your
material for your review. Also presented in your material is a Boston College law review article
suggesting that the 5% rule is difficult to apply in small rural communities such as Kenai, and
should not be applied.
A Map created by the Planning Department is attached, showing the zones in which adult
businesses are permitted and the current 500 foot buffer and proposed 1000 foot buffer. The
increased buffer distance, and proposed new sensitive uses which must be buffered from, reduce
the available land for adult businesses by less than 1% in the City, and maintains available land
opportunities greater than 5%, in compliance with federal case law. This is true even though large
portions of the City are undevelopable, non-commercial or government owned.
Page 2 of 2
Ordinance 3038 - 2019
Many studies and surveys have shown secondary negative impacts of adult businesses including
increased crime, creation of an atmosphere for crime, declining property values, deterioration of
areas, incompatibility with other uses, negative land use impacts, negative impacts on quality of
life, declining tourism, human trafficking associations, and harm to the public’s health safety and
welfare. The Boston Law Review Article in the material provided suggests that rural communities
are more susceptible to these negative impacts then larger communities. The case law presented
in your material acknowledges many of these secondary effects discussed in the studies and
surveys in your material. The intent of this Ordinance is to regulate these effects.
In your material for review is a study from other communities showing that the negative secondary
effects of adult business often extend from 1000 feet to 1500 feet beyond the business. Buffering
adult businesses from 1000 feet of sensitive uses appears reasonable given the rural nature of
our community, the walkability and bike friendly nature of our commercial core and surrounding
areas, the desire of our community to encourage tourism and effort put into our youth facilities in
Kenai.
The Ordinance is intended to be narrowly tailored, that is only protecting the City from the negative
secondary effects of adult businesses. These negative secondary effects, such as declining
property values, deterioration of areas, incompatibility with other uses, negative land use impacts,
negative impacts on quality of life, declining tourism and protecting youth cannot reasonably
otherwise be prevented by acceptable law enforcement techniques. For example the police can
not influence tourist impressions of our community, convince a potential property buyer that their
business or property value will not be impacted by negative secondary effects of an adult
business. Likewise, the police can not prevent youth in our area, utilizing, schools, libraries, parks
and recreational facilities, and walking and riding their bikes back and forth, from many of the
secondary effects.
I have provided the Council numerous articles and studies discussing adult oriented businesses,
other communities experiences with this issue, secondary effects from these businesses, and
approaches to zoning for adult oriented businesses. I request Council review this material prior to
making a decision on this Ordinance or providing input.
Your consideration is appreciated.
Sample Parcels that Meet Current City Codefor Adult Business Locations
This map is for graphic representationonly and the City of Kenai assumes noresponsibility for errors on this map.
.
August 2019
0 400 800200
Feet
LEGEND
Buffers Excluding Adult Businesses
Current City Code
(500 feet from churches and schools)
Within zone allowing adult business
and meets current buffer requirements
Sample Parcels for Current Codeand Proposed Code Change forAdult Businesses
.
0 500 1,000250
Feet
Calvary BaptistChurch
Kenai New Life Assembly of God Church
Kenai CommunityLibrary
Teen Center/Kenai Recreation Center
United MethodistChurch
Kenai Central High SchoolKenai Middle School
LEGEND
Zones Allowing Adult Businesses
Central Commercial
General Commercial
Heavy Industrial
Light Industrial
Buffers Excluding Adult Businesses
Current City Code
(500 feet from churches and schools)
Ordinance 3079-2019
(1,000 feet from churches, schools,
and sensitive uses)
Within Zone Allowing Adult Businesses
and Meets Current Buffer Requirements
MEMORANDUM
TO: Mayor Brian Gabriel and Kenai City Council
THROUGH: Paul Ostrander, City Manager
FROM: Elizabeth Appleby, City Planner
DATE: September 26, 2019
SUBJECT: Ordinance No. 3083 – 2019 (Substitute) – Resolution PZ2019-33
Recommendation of the Planning and Zoning Commission
____________________________________________________________________________
After a public hearing at their meeting on September 25, 2019, the City of Kenai Planning and
Zoning Commission passed Resolution PZ2019-33 - Recommending the Council of the City of
Kenai Enact Ordinance No. 3083-2019 (Substitute) Amending Kenai Municipal Code 14.20.175-
Adult Businesses to Increase the Buffer Distances Between Adult Businesses and Sensitive Uses
from 500 Feet to 1,000 Feet and Define Sensitive Uses, and Amending Kenai Municipal Code
14.22.010-Land Use Table to Add Adult Businesses to the Land Use Table. Commissioners
confirmed the zones where adult businesses would be allowed and how buffers would be
computed. Commissioners also requested and received clarification on the definition of an adult
businesses from the City Attorney, who noted that an occasional show or event of an adult nature
at an existing business would not meet the definition of an adult business.
Please consider this additional information for Ordinance No. 3083-2019 (Substitute) at your City
Council meeting on October 2, 2019. Thank you.
theti!yilf,
KENAI, ALASKA
"V
CITY OF KENAI
PLANNING AND ZONING COMMISSION
RESOLUTION NO. PZ2019-33
A RESOLUTION OF THE PLANNING AND ZONING COMMISSION OF THE CITY OF KENAI
RECOMMENDING THE COUNCIL OF THE CITY OF KENAI ENACT ORDINANCE 3083-2019
(SUBSTITUTE) AMENDING KENAI MUNICIPAL CODE 14.20.175 -ADULT BUSINESSES, TO
INCREASE THE BUFFER DISTANCES BETWEEN ADULT BUSINESSES AND SENSITIVE
USES FROM 500 FEET TO 1,000 FEET AND DEFINE SENSITIVE USES AND AMEND KENAI
MUNICIPAL CODE 14.22.010-LAND USE TABLE TO ADD ADULT BUSINESSES.
WHEREAS, Kenai Municipal Code 14.05.010 states the City of Kenai Planning and Zoning
Commission will act in an advisory capacity to the Kenai City Council regarding the Kenai Zoning
Code; and,
WHEREAS, the Kenai City Council referred Ordinance 3083-2019 (Substitute) to the City of Kenai
Planning and Zoning Commission at their meeting on September 4 , 2019, and requested the
Commission provide a recommendation by October 2, 2019; and ,
WHEREAS, the Code changes support the goals identified in the 2016 Imag ine Kenai 2030
Comprehensive Plan, including Goal 1-Quality of Life, Goal 2-Economic Development, and Goal
3-Land Use; and,
WHEREAS, the Code changes will promote the siting and design of land uses that are in harmony
and scale with surrounding uses, a stated objective in the 2016 Imagi ne Kenai 2030
Comprehensive Plan under Quality of Life-4; and,
WHEREAS, the Code changes will support the marketing of Kenai as a destination for tourism
and a desirable location for events, a stated objective in the 2016 Imagine Kenai 2030
Comprehensive Plan under Economic Development-9; and,
WHEREAS, the Code changes will use buffers and buffer zones to separate incompatible land
uses, a stated objective in the 2016 Imagine Kenai 2030 Comprehensive Plan under Land Use-
6; and,
WHEREAS, adult businesses are an incompatible land use with sensitive uses , which include
churches, schools, or areas where youth are likely to be present (limited to public parks, youth
recreational centers, public playgrounds, pub li c libraries); and,
WHEREAS, there is evidence the negative secondary effects of adult businesses often extend to
1,000 feet beyond the adult businesses and the currently permitted 500 feet buffer is insufficient
to separate adult businesses from incompatible sensitive uses; and,
WHEREAS, the addition of adult businesses to Kenai Municipal Code 14.22.010-Land Use Table
will provide clarity on areas of the City where adult businesses are and are not allowed; and,
Resolution No. PZ2019-33
Page 2 of 2
WHEREAS, Ordinance 3083-2019 (Substitute) is narrowly-tailored to address the substantial
government interest in regulating secondary effects of adult businesses while providing available
parcels part of the real estate market within the City of Kenai where adult businesses may locate.
NOW, THEREFORE, BE IT RECOMMENDED BY THE PLANNING AND ZONING COMMISSION
OF THE CITY OF KENAI, ALASKA:
Section 1. That the Kenai City Council enact Ordinance 3083-2019 (Substitute).
Section 2 . That a copy of Resolution PZ2019-33 be forwarded to the Kenai City Council.
PASSED BY THE PLANNING AND ZONING COMMISSION OF THE CITY OF KENAI, ALASKA,
this 25th day of September, 2019.
ATIEST:
STAFF REPORT
To: Planning & Zoning Commission
From: Elizabeth Appleby, City Planner
Date: September 19, 2019
Subject: Resolution PZ2019-33 - Recommending the Council of the City of Kenai Enact
Ordinance No. 3083-2019 (Substitute) Amending Kenai Municipal Code 14.20.175-Adult
Businesses to Increase the Buffer Distances Between Adult Businesses and Sensitive Uses
from 500 Feet to 1,000 Feet and Define Sensitive Uses, and Amending Kenai Municipal Code
14.22.010-Land Use Table to Add Adult Businesses to the Land Use Table
GENERAL INFORMATION
The City of Kenai Planning and Zoning Commission acts in an advisory capacity to the Kenai
City Council on the City of Kenai Zoning Code as specified in Kenai Municipal Code 14.05.010
Duties and powers under Title 14 Planning and Zoning Commission. City Council has requested
a recommendation from the Planning and Zoning Commission for Ordinance 3083-2019
(Substitute) that would amend City Code to address adult businesses and sensitive uses. The
Kenai City Council referred Ordinance 3083-2019 (Substitute) to the City of Kenai Planning and
Zoning Commission at their meeting on September 4, 2019, and requested the Commission
provide a recommendation by October 2, 2019.
Currently adult businesses may be located in the Central Commercial (CC), General
Commercial (CG), Light Industrial (IL), or Heavy Industrial (IH) zones of the City if the adult
business is 500 or more feet from a church or school. The Ordinance would add a definition of a
sensitive use to include a church, school, or other area where youth are likely to be present and
distance requirement from a sensitive use to 1,000 feet. The allowed zones for adult businesses
in the City would not change. In addition, the Ordinance would add adult businesses as a
category in the Land Use Table under Kenai Municipal Code 14.22.010. Adult businesses are
currently not part of the Land Use Table.
Public Notice, Public Comment
Pursuant to Kenai Municipal Code 14.20.280, Public hearing and notifications, City staff
published notice of the Planning and Zoning Commission public hearing in the Peninsula
Clarion newspaper and posted notice in three public places. No public comments have been
submitted to the City of Kenai as of September 19, 2019.
PZ2019-33 Staff Report Page 2
Recommending Kenai Municipal Code Amendment – Adult Businesses and Sensitive Uses
ANALYSIS
Several attachments are included for consideration along with this memorandum:
• City Attorney memorandum to City Council of the proposed Code changes and pertinent
legal precedents
• Council Member Pettey Memorandum to City Council describing how the Ordinance
meets goals of the Comprehensive Plan
• Council Member Pettey and Knackstedt memorandum to City Council describing the
proposed addition of adult businesses to the Land Use Table in the Substitute Ordinance
• Map showing zones allowing adult businesses and approximate buffers from sensitive
uses and proposed changes to those buffers
• Packet of court cases and studies initially distributed to the Planning and Zoning
Commission during the Discussion held on August 28, 2019
The City Council conducted an evidence-based analysis of restrictions on adult businesses and
City Attorney provided studies that support a compelling government interest for the City of Kenai
to regulate adult businesses. There is documentation from other communities that the negative
secondary effects of adult businesses often extend to 1,000 to 1,500 feet beyond the business.
These studies are also available to the Planning and Zoning Commission as supporting
documents for Resolution PZ2019-33 and are discussed in the memorandum from the City
Attorney.
The proposed changes to Kenai Municipal Code also align with objectives identified in the 2016
Imagine Kenai 2030 Comprehensive Plan, including:
• Objective Q-4 under Goal 1-Quality of Life to “promote the siting and design of land uses
that are in harmony and scale with surrounding uses.”
• Objective LU-6 under Goal 3-Land Use to “review Zoning Code to consider use of buffers
and buffer zones to separate incompatible land uses.”
In addition, Objective ED-9 under Goal 2-Economic Development states the City will, “capitalize
on the tourism industry by marketing Kenai as a destination for recreational activities,
conventions, festivals, arts, cultural and other events.” Increasing the buffer distances for adult
businesses will also support this objective as studies have shown a secondary negative impact
of adult businesses to include declining tourism.
The changes to buffers for adult businesses would still leave over five percent of land in Kenai
open to adult businesses within the CC, CG, IL, and IH zones, which follows federal case law.
The addition of adult businesses to Kenai Municipal Code 14.22.010-Land Use Table will provide
clarity on areas of the City where adult businesses are and are not allowed. The Land Use Table
would be updated to show zones adult businesses are allowed a Principal Permitted Use
(permitted if development and operation standards are met, including buffer distances from
sensitive uses). This follows guidance in the studies and articles made available to the Planning
and Zoning Commission, including the American Planning Association’s Report entitled
Everything You Always Wanted to Know about Regulating Sex Businesses, xxx Report No.
PZ2019-33 Staff Report Page 3
Recommending Kenai Municipal Code Amendment – Adult Businesses and Sensitive Uses
495/496, by Eric Damian Kelly and Connie Cooper.
RECOMMENDATIONS
City staff advises the Planning and Zoning Commission to adopt Resolution PZ2019-33
recommending the Kenai City Council amend Kenai Municipal Code for adult businesses and
sensitive uses by enacting Ordinance No. 3083-2019.
ATTACHMENTS
A. Resolution No. PZ2019-33
B. Ordinance No. 2083-2019 (Substitute)
C. Memorandum to City Council from Council Member Glenese Pettey
D. Memorandum to City Council from Council Members Glenese Pettey and Henry
Knackstedt
E. Memorandum to City Council from the City Attorney regarding Ordinance No. 3083-2019
F. Map