A. Eligible Establishments: Establishments serving alcoholic beverages for consumption on the premises which provide live entertainment may apply for a waiver of the locational requirements applicable to an adult regulated use, provided the use meets the criteria set forth in subsection K of this section, and further provided that the establishment is not within one thousand feet (1,000') of any other adult regulated use or an establishment which is the holder of a waiver under this section.
B. Approval Procedures: An applicant for a waiver shall comply with the requirements of this section in order to be granted a waiver of the locational requirements for an establishment serving alcoholic beverages on the premises which provides live entertainment.
C. Fees: All applications shall be accompanied by a filing fee of one hundred fifty dollars ($150.00). An applicant shall also pay a five hundred dollar ($500.00) cash deposit to be applied against any additional costs necessary for the processing of the application, such as consulting engineering services, consulting planning services, legal services, or court reporter services. Any costs incurred in excess of the five hundred dollar ($500.00) cash deposit shall be invoiced by the village to the applicant who shall be responsible for payment of the invoice upon its receipt. No application shall be processed until the applicant has first exhibited a receipt of the village clerk showing payment of the filing fee and cash deposit.
D. Contents Of Application: An application for a waiver of the adult use locational requirements for any property shall be filed with the community development director and shall contain the following:
1. The name, address, and phone number of the applicant.
2. A complete disclosure of interests as provided under requirements for all applications in the administration section herein.
3. The zoning district classifications of the property.
4. Descriptions of the existing use of the property and of the general category of adult use.
5. The zoning district classifications of the property and all other properties within two hundred fifty feet (250') thereof. (Ord. 2009-34, 12-3-2009, eff. 1-1-2010)
6. Architectural renderings or sketches illustrating the appearance of the proposed use, as required by the planning and zoning board. (Ord. 2009-34, 12-3-2009, eff. 1-1-2010; amd. Ord. 2015-9, 5-7-2015)
7. A site plan showing the locations of all structures, parking and loading areas, open spaces, landscaping, yards, refuse and service areas, utilities, signs and traffic accesses and circulationways.
8. A narrative statement evaluating:
a. The environmental and economic effects that noise, glare, odor, vibration, traffic generation or other characteristics of the proposed use will have on nearby properties;
b. The general compatibility of the proposed use with nearby properties;
c. The compatibility of the proposed use with the village comprehensive development plan;
d. The compatibility of the proposed use with the locational regulations set forth in this title.
9. An affirmative statement that the entertainment to be presented is not distinguished or characterized by an emphasis on matter depicting, describing or relating to "specified sexual activities" or "specified anatomical areas" as defined in this zoning title.
10. An accurately scaled plot plan indicating the structure in which the adult regulated use is to be conducted and identifying and locating all land uses and property lines within a radius of one thousand feet (1,000') of the structure.
11. Financial statements, or if the business has no financial history, financial projections of the business for which the waiver is sought, prepared in accordance with generally accepted accounting procedures and by a certified public accountant, certified to be true and accurate and showing that the applicant complies or is projected to comply with the criteria set forth in subsection K1f of this section. (Ord. 2009-34, 12-3-2009, eff. 1-1-2010)
12. Any other information the planning and zoning board reasonably may require in determining if the proposed use meets the requirements herein. (Ord. 2009-34, 12-3-2009, eff. 1-1-2010; amd. Ord. 2015-9, 5-7-2015)
13. A listing of which locational requirement(s) the applicant seeks to have waived. (Ord. 2009-34, 12-3-2009, eff. 1-1-2010)
E. Staff Review: The community development director may, together with the other departments and officials of the village, prepare a written review of the application, provided such review is completed and forwarded to the planning and zoning board within fourteen (14) days of receipt of the application.
F. Public Hearing: The community development director shall transmit the application to the planning and zoning board and shall set a date for a public hearing before the planning and zoning board not more than thirty (30) days nor less than fifteen (15) days after receipt of a complete and accurate application in compliance with the standards for public hearings set forth in subsection 11-13-8E of this title.
G. Planning And Zoning Board Action: The planning and zoning board shall hold a public hearing on the application. Within fourteen (14) days after the close thereof, the commission shall submit to the village board findings of fact relating to the waiver criteria herein, a recommendation for action and any conditions or restrictions relating to the recommendation. (Ord. 2009-34, 12-3-2009, eff. 1-1-2010; amd. Ord. 2015-9, 5-7-2015)
H. Village Board Action:
1. The village board shall not act upon any waiver application until either it has received a report thereupon from the community development director or fourteen (14) days have elapsed from the date the application was received by the community development director. The village board shall act upon a waiver application at its next regularly scheduled meeting in which a quorum is present held not sooner than forty eight (48) hours after: a) the receipt of the staff report, or b) the expiration of the fourteen (14) day period from the date the application was received by the community development director. The village board shall not approve the permit application unless it finds that the proposed use meets applicable waiver criteria herein.
2. The board must base its approval of a waiver only upon criteria set forth herein for waivers. The approval or denial of a waiver by the village board shall be considered final action subject to judicial review.
I. Revocation Of Waiver:
1. A waiver may be revoked by the village board:
a. If the applicant or any person making a representation on behalf of the applicant makes a misrepresentation of any fact in the application or in any testimony before any board or commission of the village;
b. If any criteria on which the waiver is approved is not complied with;
c. If after the criteria is initially complied with, compliance with such criteria is not maintained at any time;
d. If the eligible adult use is not established, or a required building permit not obtained and started within one year of the date the permit is issued;
e. If the eligible adult use shall cease for more than thirty (30) days;
f. If prior to the issuance of any required building permit, the waiver applicant transfers his interest in the property to another party;
g. If it determines that the waiver holder or the owner, operator or manager of the establishment serving alcoholic beverages has:
(1) Violated any provisions of the liquor control act;
(2) Violated any ordinance of the village contained in title 3, chapter 4 or title 4, chapters 3 and 4 of this code; or
(3) Been convicted of a felony under any federal or state law.
2. However, no waiver shall be revoked except after a public hearing by the village board after a three (3) day written notice to the holder of the waiver affording the holder an opportunity to appear and respond to the basis for revocation contained in the notice. The three (3) day notice provision shall commence on the day following delivery of the notice by certified mail or personal service.
J. Expansion Or Alteration: Any expansion, enlargement or structural alteration of an eligible adult use shall require a reapplication and an additional waiver.
K. Waiver Criteria:
1. Criteria For Issuance: In evaluating the suitability of a proposed waiver of the locational requirements for an establishment serving alcoholic beverages for consumption on the premises which provides live entertainment, the village board shall examine the following criteria of the proposed use and its individual structures of components and shall issue the waiver, provided the proposed use meets the criteria listed in either subsections K1a and K1c through K1m or subsections K1b and K1c through K1m of this section:
a. The land, building or structure on or in which the live entertainment is to be performed is owned by a bona fide religious, fraternal, charitable, or educational organization which is exempt from taxation under section 501 of the internal revenue code, located within a public park or recreation area and/or is being presented by or under the sponsorship of the village or another governmental entity; or
b. The land, building or structure on or in which the live entertainment is to be performed is located within the C-2, C-3, I-1 or I-2 zoning districts.
c. The use of land, building or structure on or in which the live entertainment is to be performed, except for the performance of the live entertainment, otherwise complies with the applicable regulations of this title, as amended.
d. No entertainment presented or to be presented is distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas.
e. Not less than fifty percent (50%) of the square footage of the business establishment is devoted to the preparation and service of food.
f. The gross revenue from the sale of alcoholic beverages shall not exceed sixty five percent (65%) of the gross revenue from all sales, including food, on an annual basis.
g. No loudspeakers or sound equipment shall be used for the amplification of sound to a level discernible by the public beyond the walls of the building in which the permitted entertainment is conducted, or if in a park or recreation area, beyond the property line of the site.
h. No residential structure or any other nonconforming structure shall be converted for use for live entertainment after enactment of the provisions of this section.
i. If the maximum audience expected exceeds twenty five (25) people, an on site security program, including required interior and exterior lighting plans, shall be prepared and implemented. The security program shall include the following:
(1) The presence of an on site manager during all business hours;
(2) All off street parking areas and building entries serving the entertainment use shall be illuminated during all hours of operation with a lighting system designed to provide a minimum maintained horizontal illumination of greater than one foot- candle of light on the parking surface and/or walkway. In the event the entertainment use shares its parking with other businesses, this requirement shall only apply within a radius of one hundred feet (100') from any entrance into the entertainment use;
(3) All interior portions of the entertainment use shall be illuminated during all hours of operation with a lighting system designed to provide a minimum maintained horizontal illumination of not less than two (2) foot-candles of light at the floor.
j. All exterior areas of the business, including building, landscaping and parking areas, shall be maintained in a clean and orderly manner.
k. Adequate parking shall be provided for the use in conformance with section 11-9-3 of this title. If any off street parking is proposed to be used to meet the required number of parking spaces, a signed parking agreement with the owners must be submitted and approved.
l. Buildings and structures shall not be painted or surfaced with colors or textures or any design that would simulate a sign or advertising message except as permitted by chapter 10 of this title.
m. The applicant or the owner, operator or manager of the establishment serving alcoholic beverages has not:
(1) Violated any provisions of the liquor control act;
(2) Violated any ordinance of the village contained in title 3, chapter 4 or title 4, chapters 3 and 4 of this code; or
(3) Been convicted of a felony under any federal or state law.
2. Denial Of Application For Waiver: The village board may deny the application for waiver for any of the following reasons:
a. The application does not meet the standards set forth in this section;
b. An applicant has failed to provide information required on the application for the issuance of the waiver or has falsely answered a question or request for information on the application form;
c. The premises to be used for the permitted entertainment has not been approved as being in compliance with health, fire and building codes by the department or agency responsible under law for investigating said compliance;
d. The proposed location is in violation of, or is not in compliance with, any of the provisions of this title including, but not limited to, the requirements under this section;
e. An applicant or an applicant's spouse is overdue on his/her payment to the village of taxes, fees, fines, or penalties assessed against him/her or imposed upon him/her in relation to an entertainment use; or
f. The required application fees have not been paid.
L. Expiration: The waiver shall, by its own terms, expire one year after its issuance.
M. Renewal:
1. An unrevoked waiver issued pursuant to this section may be renewed upon written application to the community development director made at least thirty (30) calendar days before the expiration date of a current valid waiver and payment of the then current nonrefundable application fee. A waiver shall remain valid pending the community development director's consideration and the village board's decision if the holder of waiver has timely filed the application for renewal with proper fee payment. For good cause, the community development director may extend the time for filing a renewal application for up to ninety (90) days and may extend the prior waiver pending decision on the renewal application.
2. The application for renewal shall supply current information with respect to each category of information required in the initial application. Within thirty (30) days from the date the renewal application for a waiver is date stamped and received at the community development department, the community development director shall determine if it is complete, and if incomplete, shall notify the applicant in writing of its specific deficiencies. If a written determination is not provided to the applicant within thirty (30) days after it is submitted to the community development department, the application shall be deemed complete.
3. The community development director shall make its written review on an application for the renewal of a waiver within thirty (30) days from the date the application is deemed to be complete. The community development director may recommend to extend the waiver without change to the original conditions of approval, with amended or deleted conditions, or deny the extension.
4. All department or agency inspections, including, but not limited to, health, fire, and building inspections, which are required for the community development director to consider the renewal of a waiver, shall be completed within the time limits for community development director action provided in this section.
5. The village board shall not act upon a waiver renewal application until either it has received a report thereupon from the community development director or thirty (30) days have elapsed from the date the application is deemed complete. The village board shall act upon a waiver renewal application at its next regularly scheduled meeting in which a quorum is present held not less than fourteen (14) days after: a) receipt of the community development director's report, or b) the expiration of the thirty (30) day period from the date the application is deemed complete. The village board shall not approve the permit renewal application unless it finds that the proposed use meets applicable waiver criteria herein.
6. The board must base its approval of a renewal of a waiver only upon criteria set forth herein for the waivers. The approval or denial of a renewal of a waiver by the village board shall be considered final action subject to judicial review. (Ord. 2009-34, 12-3-2009, eff. 1-1-2010)