11-06-05: COMMERCIAL USE STANDARDS:

   1.   Adult Uses: It is the intention of the City that the provisions of this Section be construed, enforced, and interpreted in such a manner as will cause the least possible interference with any affected rights of speech, due process, equal protection, or other fundamental right. This Code and each section and provision thereof are hereby declared to be independent divisions and subdivisions and, not withstanding any other evidence of legislative intent, it is hereby declared to be the controlling legislative intent that if any provisions of this chapter, or the application thereof to any person or circumstance is held to be invalid, the remaining sections or provisions and the application of such sections or provisions to any person, business, or circumstances other than those to which it is held invalid, shall not be affected thereby, and it is hereby declared that such sections and provisions would have been passed independently of such section or provision so known to be invalid.

      A.   Bikini Bar:

         (1)   Standards: A bikini bar use shall comply with the following standards:

            (a)   It is located at least 300 feet from any residential use or zone.

            (b)   It is at least 1,000 feet from any public or parochial school or day care licensed by the Boise City, and from any public park or playground; any religious institution; or any other bikini bar.

         (2)   Procedures: The procedures for sexually oriented businesses in 11-06-05.1.B(3), below, shall apply to bikini bars.

      B.   Sexually Oriented Business:

         (1)   Purpose:

            (a)   The purpose of these regulations is to allow the reasonable location of a sexually oriented business within the city in a manner that will protect property values, neighborhoods, and residents from the potential adverse secondary effects of sexually oriented businesses while providing to those who desire to patronize sexually oriented businesses such opportunity in appropriate areas within the city.It is not the intent of this Code to suppress any speech activities protected by the First Amendment of the United States Constitution, but to impose content-neutral regulations that address the adverse secondary effects a sexually oriented business may have on adjoining properties and the immediate neighborhood.

            (b)   It has been determined, and reflected in the land use studies of various US cities, that businesses that have as their primary purpose the selling, renting, or showing of sexually explicit materials have negative secondary impacts upon surrounding businesses and residences. The experience in other US cities is that the location of a sexually oriented business significantly increases the incidence of crimes, especially sex offenses, including rape, indecent exposure, lewd and lascivious behavior, and child molestation.

            (c)   It has been determined, and reflected in the land use studies of various US cities, that the operation of sexually oriented businesses in business districts that are immediately adjacent to and that serve residential neighborhoods has a deleterious effect on both the business and the residential segments of the neighborhood, causing blight and down-grading property values.

            (d)   It is the intent of these regulations to allow sexually oriented businesses to exist within the city in various dispersed locations rather than to allow them to concentrate in any one business area. It is further the purpose of these regulations to require separation requirements between sexually oriented businesses and residential uses, churches, parks, and educational institutions in an effort to buffer these uses from the secondary impacts created by sexually oriented business activity.

         (2)   Criteria: In lieu of the generally applicable conditional use permit criteria, a sexually oriented business shall be subject to the following standards:

            (a)   It shall not be located within 1000 feet of a public or parochial school or daycare as defined and licensed by Boise City; a public park or playground; a bar or tavern or other premises serving alcohol; religious institution; or a sexually oriented business;

            (b)   It shall not be located on a lot or parcel that is within 500 feet of a residential use or zone;

            (c)   Distance shall be measured in a straight line from property line closest to the property line of the nearest school, park, playground, religious institution or other sexually oriented business. These standards shall apply regardless of the political jurisdiction in which schools, parks, or churches or other adult businesses are located;

            (d)   The sign package and exterior building design must be submitted with the conditional use application for review by the PZC. Advertisements, displays, or other promotional materials shall not be shown or exhibited so as to be visible to the public from the exterior of the building; No advertising signs, billboards, displays, advertisements, or other promotional materials depicting specified anatomical areas or specified sexual activities or displaying instruments, devices, or paraphernalia designed for use in connection with specified anatomical areas or specified sexual activities shall be shown or exhibited so as to be visible to the public from the exterior of the building;

            (e)   Lobby and entrance areas should be designed so as to minimize obstruction of sidewalks during operating hours and shall be oriented and consistent with other commercial activities in the area;

            (f)   All building openings, entries, windows, and the like, shall be located, covered, or screened in such a manner as to prevent a view into the interior, so that personnel, instruments, devices, paraphernalia, and body parts thereof, that are associated in any manner with specified anatomical areas or specified sexual activities, cannot be viewed from streets, sidewalks, and adjacent private properties;

            (g)   No loudspeakers or sound equipment shall be used for such businesses that can be discerned by the public outside the building;

            (h)   The disposal of garbage and trash containing sexually explicit materials must be disposed of in a manner that prevents minors from having access to the material; and

            (i)   For purposes of this Code, the above conditions and standards shall be applicable in the following circumstances:

               i.   The opening or commencement of any sexually oriented business as a new business.

               ii.   The conversion of an existing business or any part of any existing business to any of the sexually oriented businesses regulated herein.

               iii.   The addition or expansion of any business to include any of the sexually oriented businesses regulated herein.

               iv.   The voluntary relocation of any such business.

            (j)   Hours of operation are from 4:00 p.m. to 2:00 a.m. One security staff person is required for each 20 required parking spaces or fraction thereof. The hours of operation shall be visibly posted on all entrances and exits.

            (k)   On-site security must be present during all hours of operation.

            (l)   These provisions shall not be construed as permitting any use or act that is otherwise prohibited or made punishable by law.

            (m)   No sexually oriented materials or performances shall be disseminated, performed for, by, or upon minors. Signs prohibiting minors upon premises shall be visibly posted on all entrances and exits.

            (n)   All areas of a sexually oriented business shall be illuminated at a minimum of 20 foot-candles, normally maintained and evenly distributed at ground level. Except, adult motels shall only be required to be illuminated at a minimum of 20 foot-candles in public areas, and, adult theaters and cabarets shall only be required to be illuminated at a minimum of five foot- candles . During performances, adult theaters and cabarets may reduce the lighting to be a minimum of 11/4 foot-candles.

            (o)   An adult motion picture show or adult arcade shall limit the maximum number of image producing devices to the maximum occupancy load permitted in any room or partitioned portion of a room in which an image producing device is located.

         (3)   Procedures: For general Public Hearing Procedures see Section 11-03-03.6, Public Hearing.

            (a)   Neighborhood Meeting Notification: For applications for sexually oriented businesses and bikini bars, the applicant shall notify and invite to the neighborhood meeting all residents and property owners within 1,000 feet of the exterior boundary of the application parcel and the registered neighborhood association. The notice of this meeting may be mailed or hand-delivered to the recipient. If mailed, the notice shall be postmarked a minimum of seven calendar days prior to the meeting date. If hand-delivered, the applicant must deliver the notice a minimum of five days prior to the meeting date.

            (b)   Hearing Notification: For sexually oriented businesses and bikini bars, mailed notice shall be provided to all property owners, purchasers of record, and residents within 1,000 feet of the exterior boundaries of the application parcel and the registered neighborhood association. Also, any school, daycare, church, or registered neighborhood association within 2,000 feet of the application parcel shall be notified of applications for sexually oriented businesses and bikini bars.

            (c)   Timing Of Hearings: A public hearing for an application for a sexually oriented business or bikini bar, regardless complexity shall be held no later than 44 calendar days after acceptance of a complete application. If no decision is made within 45 days after hearing, then the request for a sexually oriented business or bikini bar will be deemed approved.

            (d)   Deferrals: Unless the applicant agrees to a deferral, applications for sexually oriented businesses and bikini bars must be decided within 45 days following the public hearing. Failure of the PZC to decide such application within 45 days following the hearing shall result in its approval.

            (e)   Appeals: The Council shall hold a hearing within 45 days following the filing of an appeal to a decision of the PZC on an application for a sexually oriented business or bikini bar. If the applicant has not requested a deferral, a decision as to whether or not a conditional use is approved must be made within 45 days from initial hearing date for cases involving a sexually oriented business or bikini bar. Failure of the Council to make a decision within 45 days shall be deemed as an approval for a sexually oriented business or bikini bar. Council shall issue a temporary conditional use permit on the occasion where they had previously approved an application and it was then appealed to the District Court by an appellant that is not the applicant.

   2.   Office Uses:

      A.   Offices, Business And Professional:

         (1)   Within all R-1, R-2, and R-3 zoning districts, professional and executive offices are allowed on a lot or parcel where the side of such lot or parcel abuts a commercial or industrial zone. Such uses are not allowed on properties separated from a commercial or industrial zone by an alley or street. All transitional office uses shall be subject to design review.

         (2)   Within the NNE overlay district, in the R-3 base zoning district, new office construction is prohibited on lots larger than 2,500 square feet, except on parcels demonstrated to have been vacant on or before the effective date of the NNE overlay district ordinance, or when provided by means of the adaptive reuse of an existing structure.

         (3)   Professional, administrative, and business offices are conditional uses in the M-1 and M-2 districts and are subject to the following standards:

            (a)   Amenities (which may include but are not limited to visual screening, orientation, and placement of buildings, parking, and access areas) shall be provided for the office to buffer the impact of any existing or future conflicting land uses; and

            (b)   The lot or parcel occupied by such offices shall abut a public right-of-way that separates such lot or parcel from residential or office zones or uses; or

            (c)   The use of the subject property for such offices will not encroach upon or conflict with existing industrial development or future industrial uses that may reasonably be expected to develop.

   3.   Retail Uses:

      A.   Drive-Up Establishment:

         (1)   Administrative Approvals: Drive-up establishments are subject to the following standards:

            (a)   Design and operation of the establishment is substantially in compliance with general requirements of this Section;

            (b)   Site traffic circulation is not disrupted by increased vehicular congestion, blockage, or rerouting caused by the establishment;

            (c)   The number of drive-up lanes is limited to allow for adequate on-site circulation of pedestrians and vehicles; and

            (d)   The minimum number of parking spaces required for all uses of the site, upon which the drive-up window establishment is placed, must be maintained.

         (2)   Approvals By The Planning And Zoning Commission:

            (a)   General Requirements:

               i.   The location shall not cause an increase of commercial traffic in nearby residential neighborhoods, or cause significant adverse impacts in the vicinity.

               ii.   Drive-up aisles should be located behind the building and circulation should provide for pedestrian access to and from the establishment's entrance.

               iii.   Waiting lane(s) are of sufficient length to accommodate average monthly peak volumes;

               iv.   Lights are designed and located to prevent glare on adjoining properties. Screening of lights may be required as a secondary measure of mitigation.

               v.   Landscaping should screen drive-up aisles from the public right-of-way and minimize the visual impact of vehicular lights, readerboard signs, and directional signs;

               vi.   Drive-up lanes shall be setback at least ten feet from residentially zoned or used property. Landscape and sound abatement walls may be required when appropriate.

               vii.   Communication systems shall not exceed 55 decibels at any property line adjoining or across the alley from residential zones or uses.

            (b)   Hours Of Operation: The PZC may limit the hours of operation of a drive-up window establishment.

            (c)   Additional Requirements In The C-1 District: In C-1 districts, a 200-foot setback from residential use or zone is required for the drive through window or lane where the primary use of the window is food service. The 200-foot setback shall be measured from any part of the window or drive through lane to the nearest lot or parcel used or zoned for a residence.

            (d)   Additional Requirements In The C-5 District: Drive- up windows in the C-5 district shall be subject to the following standards and provisions.

               i.   The drive-up window and all stacking and escape lanes shall be located within a structure. The drive-up window facility shall be secondary to the principal uses of the structure in which the drive-up facility is located. The following additional design requirements shall apply:

                  A.   All lanes used for ingress, stacking, service, and egress shall be integrated safely and effectively with circulation and parking within the structure.

                  B.   No additional curb cuts shall be allowed to provide access for drive-up facilities within an existing or new structure. Existing curb cuts, however, may be relocated.

                  C.   Traffic associated with the drive-up facility shall not inhibit safe access and exiting from parking spaces or the structure's entrances or exits.

               ii.   Where it is essential that the drive-up facility have its own ingress to and/or egress from the structure, the ingress and egress shall be limited to a single lane where it intersects a public street and sidewalk.

               iii.   The location and design of the drive-up facility shall minimize blank walls on street-facing exteriors of the building and disruption of existing or potential retail and other active ground floor uses.

               iv.   Drive-up windows in the C-5 district are not subject to general requirements in paragraph vi of subsection 2(a), above.

               v.   All entrance and exit points that may be utilized for the drive-up facility shall incorporate the following minimum safety features:

                  A.   There shall be a visible pedestrian warning where walkways intersect entrance and exit points.

                  B.   An approved auditory warning device and an approved non-auditory device shall be installed on both sides of all exit points. The devices may be combined into one device and shall flash and produce an auditory sound to warn against exiting vehicles.

            (e)   Additional Requirements In The HS District: In the HS district, drive-up windows may be allowed only for health-services related uses, such as pharmacies.

      B.   Shopping Center In The C-1 District: Groupings and shopping centers exceeding 100,000 square feet gross floor area are prohibited. Any grouping exceeding 70,000 square feet requires conditional use approval. On sites greater than 6.5 acres, groupings of nonresidential buildings are limited to a floor area ratio (FAR) of .35.

      C.   Taverns, Lounges, Concert Halls/Dance Halls And Tobacco Bars: In order to approve a conditional use permit for a Bar, Tavern, Lounge, Concert Halls/Dance Hall, or Retail Tobacco Business, the Commission must determine that the following conditions are met:

         (1)   Such business shall not be located within a radius of 300 feet of any building within which public school activities are conducted.

         (2)   Such business shall not be located within a radius of 150 feet of any hospital or any room within which a duly organized and established religion conducts regular religious or worship services.

         (3)   No amplification device shall be used such that the sound:

            (a)   Is plainly audible within any place of residence, or,

            (b)   Is plainly audible on a street at a distance of 100 feet or more from the amplification device.

         (4)   Establishments shall remain closed between 2:00 a.m. and 6:00 a.m. Closing times shall be clearly posted on all entrances and exits.