MOVED that the Town vote to amend the Needham Zoning By-Law, as follows:

(a)

In Section 2.1, Classes of Districts, by adding a new Overlay District designation and category as follows:

"AU - Adult Uses"

(b)

In Section 3, Use Regulations, by inserting a new Subsection 3.5, Adult Uses Overlay Districts, to read as follows:

"3.5 Adult Uses Overlay Districts

3.5.1 Purpose and Intent

It has been documented in numerous other towns and cities throughout the Commonwealth of Massachusetts and elsewhere in the United States that adult entertainment uses are distinguishable from other business uses and that the location of adult entertainment uses degrade the quality of life in the areas of the community where they are located, with impacts including increased levels of crime, blight, and late hours of operation resulting in noise and traffic late into the night. Therefore, this By-Law is enacted pursuant to M.G.L., Chapter 40A, Section 9 and Section 9A to serve the compelling Town interests by regulating and limiting the location of adult entertainment enterprises as defined herein. This regulation will promote the Town of Needham's great interest in protecting and preserving the quality of its neighborhoods, commercial districts, and the quality of life through effective land use planning.

3.5.2 Establishment of Districts and Relationship to Underlying Districts

The Adult Uses Overlay Districts are established as districts which overlay the underlying districts so that any parcel of land lying in an Adult Use Overlay District shall also lie in one or more of the other zoning districts in which it was previously classified, as provided for in this Zoning By-Law.

3.5.3 Definitions

The following terms shall be specifically applicable to the Adult Uses regulations and shall have the meanings provided below.

Adult Bookstore - an establishment having as a substantial or significant portion of its stock in trade, books, magazines, and other matter which are distinguished or characterized by their emphasis depicting, describing, or relating to sexual conduct or sexual excitement as defined in M.G.L. Chapter 272, Section 31.

Adult Video Store - an establishment having as a substantial or significant portion of its stock in trade, videos, movies, or other film material which are distinguished or characterized by their emphasis depicting, describing, or relating to sexual conduct or sexual excitement as defined in M.G.L. Chapter 272, Section 31.

Adult Paraphernalia Store - an establishment having as a substantial or significant portion of its stock devices, objects, tools, or toys which are distinguished or characterized by their emphasis depicting, describing or relating to sexual conduct or sexual excitement as defined in M.G.L. Chapter 272, Section 31.

Adult Motion Picture Theater - an enclosed building used for presenting material distinguished by an emphasis on matter depicting, describing, or relating to sexual conduct or sexual excitement as defined in M.G. L. Chapter 272, Section 31.

Adult Live Entertainment Establishment - any establishment which provides live entertainment for its patrons, which includes the display of nudity, as that term is defined in M.G.L. Chapter 272, Section 31.

Adult Use - Adult Bookstore, Adult Video Store, Adult Paraphernalia Store, Adult Motion Picture Theater, and/or Adult Live Entertainment Establishment as herein defined.

3.5.4 Permitted Uses

(a) All uses permissible and as regulated within the underlying district.

3.5.5 Special Permit Uses

The following uses are prohibited except upon the issuance of a Special Permit from the Board of Appeals: Adult Bookstore, Adult Video Store, Adult Paraphernalia Store, Adult Motion Picture Theater, or Adult Live Entertainment Establishment. Such permit shall require specific improvements, amenities, and locations of proposed uses for which such permit may be granted.

3.5.6 Special Permit Standards for Adult Uses

No Special Permit may be granted by the Board of Appeals for an Adult Bookstore, Adult Video Store, Adult Paraphernalia Store, Adult Motion Picture Theater, or Adult Live Entertainment Establishment unless the following conditions and limitations are satisfied:

(a) No Adult Bookstore, Adult Video Store, Adult Paraphernalia Store, Adult Motion Picture Theater, or Adult Live Entertainment Establishment may be located less than 500 feet from a child-care facility, park, playground, recreational areas where large numbers of minors regularly travel or congregate, another Adult Use, or any establishment licensed under the provisions of M.G.L. Chapter 138, Section 12, nor less than 700 feet from any residential district designated by this By-Law. The distances specified above shall be measured by a straight line from the nearest property line of the premises on which the Adult Use is to be located to the nearest property line of any of the designated uses set forth herein.

(b) No merchandise or services prohibited as obscene or indecent under any federal or Massachusetts law or regulation or found to be obscene by any superior or higher federal or state court in any of the New England states shall be disseminated or available therein.

(c) No signs, graphics, pictures, publications, videotapes, movies, covers, or other implements, items, or advertising that fall within the definition of Adult Bookstore, Adult Video Store, Adult Paraphernalia Store, Adult Motion Picture Theater, or Adult Live Entertainment Establishment merchandise, or are erotic, prurient, or related to violence, sadism, or sexual exploitation shall be displayed in the windows of, or on the building of any Adult Bookstore, Adult Video Store, Adult Paraphernalia Store, Adult Motion Picture Theater or Adult Live Entertainment Establishment, or be visible to the public from the pedestrian sidewalks or walkways or from other areas, public or semi-public, outside such establishments.

(d) Appearance of buildings for Adult Uses shall be consistent with the appearance of buildings in similar (but not specifically "adult") use in Needham, not employing unusual color or building design which would attract attention to the premises.

(e) No Special Permit for an Adult Use shall be issued to any person convicted of violating the provisions of M.G.L. Chapter 119, Sections 63 or M.G.L. Chapter 272, Sections 28, 29, 29A, 29B, and 35A. No Special Permit for an Adult Use shall be issued to any corporation, partnership, trust or any other legal entity if any of its directors, partners, trustees, principals, managers, employees or beneficial owners have been convicted of violating the provisions of M.G.L. Chapter 119, Section 63 or M.G.L. Chapter 272, Sections 28, 29, 29A, 29B, and 35A. If any person who is a director, partner, trustee, principal, manager, employee or owns a beneficial interest in such legal entity is convicted of violating M.G.L. Chapter 119, Section 63 or M.G.L. Chapter 272, Sections 28, 29, 29A, 29B, and 35A, the Special Permit shall terminate herewith.

(f) Special Permits granted for Adult Uses shall be subject to the provisions of Section 7.5.2. Special Permits of this By-Law.

(g) Special Permits granted for Adult Uses shall be subject to annual renewal.

(h) Special Permits shall be granted for Adult Uses only upon determination of the Board of Appeals that the location and design of the facility are in harmony with its surroundings, and that adequate safeguards exist through licensing or other means to assure on a continuing basis that activities therein will not be patently contrary to prevailing standards of adults in the community and will not involve minors in any way.

(i) A Special Permit issued under this Section shall terminate upon any one of the following occurrences:

1) There is a change in the location of the adult use;

2) There is a sale, transfer or assignment of the business or the license;

3) There is any change in legal or beneficial ownership or management of the applicant.

3.5.7 Lapse of Special Permit

Any Special Permit granted under this section shall lapse within one year of the date of grant, not including the time required to pursue or await the termination of an appeal referred to in M.G.L. Chapter 40A, Section 17, if substantial use thereof has not sooner commenced except for good cause, or in the case of permit for construction, if construction has not begun within one year of the date of grant, except for good cause.

3.5.8 Severability

If any section or portion of this By-Law is ruled invalid by a court of competent jurisdiction, such ruling will not affect the validity of the remainder of the By-Law."

Article 9 Explanation: A new Adult Uses Overlay District would be established by this Article. Currently, the Town of Needham does not specifically regulate adult uses through zoning. Because they are not separately defined in the Needham Zoning By-Law today, an adult bookstore, adult video store, adult paraphernalia store, adult motion picture theater, or adult live entertainment establishment may be established under the same zoning procedures as any bookstore, video store, retail establishment, theater, or entertainment establishment. Therefore, by default, adult uses are allowed "as of right" in most of Needham's commercial districts - including the center, squares and in close proximity to some residential neighborhoods. The zoning by-law modifications proposed under warrant Article 9 in combination with Article 10 would dramatically reduce the locations for adult uses and would require any such business to obtain a special permit from the Board of Appeals.

Adult uses have not been directly controlled through zoning up to this point partly because there has been very little market pressure for these uses to locate in Needham. In addition, the courts have only recently upheld adult use zoning controls. Even so, the courts will not allow a municipality to prohibit adult uses altogether, or regulate them based on a mere dislike for an adult use itself, or for the materials or products it presents or sells. Since regulation of adult uses has been successfully challenged as violating the right of free speech established by the First Amendment of the U.S. Constitution, it is extremely important that any proposed by-law be clearly tied to and constructed around the fundamental legal concepts and precedents already established by the courts.

To date, the U.S. Supreme Court has upheld regulation of adult uses through land use zoning in at least three landmark cases. The Planning Board has drafted the proposed by-law modifications under Articles 9 and 10 to comply with the federal and state legal requirements.

A community may require that adult uses be located away from residences, schools, parks and the like. Nonetheless, adult use zoning must allow a reasonable amount of a community's land area to remain available for potential adult use sites. The courts have upheld regulations that promote either a concentration of the uses in a few areas, or a scattering over a wide area. Because of Needham's development pattern and the desire to protect residential areas in particular, the proposed modifications under articles 9 - 10 are designed to concentrate potential sites in one industrial area and away from predominately residential areas or defined neighborhoods.

The proposal, as contained in Article 9 in combination with Article 10, amends our Zoning By-Law to define certain "adult uses" and then limits the location of these uses to one area, away from residences, child-care facilities, parks, playgrounds, recreational areas, other adult uses, or establishments holding a liquor license under the provisions of M.G.L. Chapter 138, Section 12. The legislation: (1) Defines "adult bookstore", "adult video store", "adult paraphernalia store", "adult motion picture theater", and "adult live entertainment establishment". The definitions are drawn directly from the State Zoning Act, M.G.L. Chapter 40A, Section 9A. (2) Permits adult use in only a portion of one of the Town's sixteen (16) zoning districts and only after public hearings and the grant of a special permit. (See Article 10 for location of proposed Adult Use Overlay District). (3) Requires annual renewal of the special permit for an adult use. (4) Stipulates that an adult use must be 700 feet away from a residence zone and 500 feet away from a child-care facility, park, playground, recreational area where large numbers of minors regularly travel or congregate, another adult use, or any establishment with a liquor license. (5) Requires buildings containing an adult use to be consistent with the appearance of buildings containing similar (but not specifically "adult") uses in Needham, not employing unusual color or building design that would attract attention to the premises. (6) Prohibits the display of adult use materials in the windows of or on the building.

Application of the proposed by-law will allow the Town maximum control over adult uses, while still fulfilling the legal requirement to maintain a reasonable number of potential adult use sites.

Due to legal constraints, the regulation of adult uses through zoning does have its limitations - it only applies when an adult use is a "principal" use on a given site, and adult entertainment is regulated only if it is a "regular" part of an establishments business. Thus, a bookstore or video store that includes an accessory adult use is not specifically regulated (i.e., when an establishment does not focus primarily on adult-oriented use, and limits its adult-oriented inventory of products). The adult use zoning by-law also cannot be used to directly control a night club that presents a one-time live adult entertainment event, or a theater that may show an occasional adult film.

Despite these limitations, regulating adult uses through zoning does provide important benefits. It limits the location for adult uses, guiding establishments that are clearly adult-oriented away from the Town's residential neighborhoods, center, and squares. In addition, it establishes Town policy that may be enforced "up-front", before an actual use is established.

Town Meeting Actions (5/4/98 9:30 pm - 10:53 pm)

Disposition

Approved as amended

Amendments

1. A technical amendment: 3.5.6(i) ``4) there is a violation of the special permit.''

   Aye

2. An amendment by Mrs. Elsie Robinson affecting Section 3.5.3 by banning visibility of signs from Route 128.

    Nay 
   

3. An amendment by Mrs. Elsie Robinson affecting Section 3.5.6 (c) concerning the definition of ``substantial or significant''.

    Aye 
   

4. An amendment by Mrs. Elsie Robinson adding to Section 3.5.6 (i) ``5) Minors are found to be involved.''

    Aye 
   

5. An amendment by Mrs. Elsie Robinson adding Section 3.5.6 (j) concerning visibility of video booths.

    Nay 
   

6. An amendment by Mrs. Elsie Robinson adding Section 3.5.6 (k) concerning police details.

    Aye 
   

7. An amendment by Mrs. Elsie Robinson adding Section 3.5.6 (l) concerning hours of operation.

    Nay 
   

Discussion

Mrs. Bailin of the Planning Board. discussed history of this kind of bylaw and how articles 9-11 would work. They prefer articles 9-10 because of better control by the town.

Mr. Cogswell. Strongly requests an affirmative vote on these restrictions.

Town Counsel David Tobin. Cannot ban adult entertainment. Nor can liquor license be linked to such entertainment. Regulation is possible and is proposed effectively by these bylaws.

Paul Good of NBA. They want restriction but will let the Town Meeting choose the method.

Question-if day care were placed in such a place after passage of the bylaw? Mr. Tobin feels the adult use would still be allowed in.

Mrs. Elsie Robinson offered 6 amendments. These are all based on wordings from other towns.

• 3 to clear ambiguities

• 1 for interiors

• 1 for police

• 1 for hours

Mrs. Bailin is concerned because they did not hold hearings on some of the matters in the proposed amendments. Especially the first which they ask be returned; also the one adding subparagraph (j). Concerned about adding hours. No other hour restrictions.

Mr. Tobin has no legal objections to the proposed amendments.

Question of license fee. There is a standard fee. Question of how many uses within the district. 3 maximum. Probably 2 in reality. What are the origins of distance? Numbers that allow a district.

Mrs. Sockol asks that we close this barn door before the horse gets out.

A person asks to vote No because of disareeing with the Supreme Court.

Alan Fanger says hearings were opposed to these proposals. A person who might bring in such a business told him he would prefer a regulated town. Also these get challenged. Feels article 9 might not pass muster.

One woman prefers to protect and risk challenge.

Mrs. Howard asks What would happen today if someone wanted to come into the movie theater. (Actually it is not in the right district.) But a bookstore could open anywhere bookstores are allowed.

Mr. Browne Moves that Mrs. Robinson first and fourth be referred. Can't be done; must be defeated.

ARTICLE 10:

AMEND ZONING BY-LAW - MAP CHANGE TO ADULT USES OVERLAY DISTRICT

MOVED that the Town vote to amend the Needham Zoning By-Law by amending the Zoning Map to place in the Adult Uses Overlay District all that land now zoned Industrial and lying between the Circumferential Highway, known as Route 128, and the centerline of the Charles River southeast of the MBTA right-of-way centerline and northwest of the present district boundaries along Highland Avenue said area bounded and described as follows:

Beginning at the point of intersection of the northeasterly sideline of the Circumferential State Highway, known as Route 128, and the centerline of the Massachusetts Bay Transportation Authority (MBTA) right-of-way, thence running northeasterly by the MBTA right-of-way centerline to the intersection of the MBTA right-of-way centerline and the centerline of the Charles River (also known as the Town of Needham boundary line), thence turning and running southeasterly by the centerline of the Charles River to the intersection of the centerline of the Charles River and a line parallel to and 100 feet northwest of the northwesterly sideline of Highland Avenue, thence turning and running southwesterly by said parallel line to the centerline of the westerly end of Highland Circle, thence turning and running northwesterly by the centerline of the westerly end of Highland Circle to the intersection of the centerline of the westerly end of Highland Circle and a line parallel to and 200 feet northwest of the northwesterly sideline of Highland Avenue, thence turning and running southwesterly by said parallel line to the northeasterly sideline of the Circumferential State Highway, known as Route 128, thence turning and running northwesterly by the northeasterly sideline of the Circumferential State Highway, known as Route 128, to the point of beginning.

Article 10 Explanation: This Article describes the geographical boundaries of the new Adult Uses Overlay District which would generally include all that land now zoned Industrial and lying between the Circumferential Highway, known as Route 128, and the centerline of the Charles River southeast of the MBTA right-of-way centerline and northwest of the present district boundaries along Highland Avenue.

Town Meeting Actions (5/4/98 10:53 pm - 10:55 pm)

Disposition

Approved