Robert W. Thorpe, AICP

R. W. Thorpe & Associates, Inc.

Seattle/Anchorage

June 7, 1984

To: City Council

From: City Manager

Subject: Recommended Actions - Adult Uses

On October 27, 1983, the City Council conducted Public Hearings on two questions.

1. Should adult businesses be allowed in the Revitalization Area?

The City Council took testimony and was presented extensive study data and reports on the effects of adult businesses on the Revitalization Area. The Council instructed Administration to prepare a recommendation by June 7, 1984. In the meantime, Council, Administration and consultants have had the entire record available for study.

I have utilized Administrative staff (principally myself, Special Projects Assistant Dave Crow and City Attorney Gorham) to prepare a recommendation as instructed. I also commissioned Robert Thorpe and Associates to conduct an independent evaluation of the same adult use subject as related to the downtown Revitalization area.

This report represents only a brief summary of the entire record and base of facts and studies used by Administration. The Administrative report is also summarized with this memo.

An independent summary report from R.W. Thorpe and Associates is attached. A detailed report from R. W. Thorpe will follow in a few weeks.

Recommended findings and conclusions are contained in the detailed Administrative report. The following recommended actions are summarized for easy reference.

1. Should adult businesses be allowed in the Revitalization area? - - NO.

2. Should Adult businesses which are allowed be grouped or dispersed? - - THE ADULT BUSINESSES SHOULD BE DISPERSED AND SEPARATED.

It is the recommendation of the City Manager and the City Attorney that the City Council take this summary report and detailed report under advisement for individual study and that the Council place the item on an August agenda for the purpose of scheduling a Public Hearing in September to consider the wordage of an Ordinance implementing the above recommended actions.

SEM:do

The purpose of this report is to summarize the impact of the Des Moines Theater on nearby business and residential areas and on the City of Des Moines as a whole. This report will focus on this adult theater and within the framework of findings previously determined of adult uses in general. This report will especially look at land use impacts associated with adult theaters and make recommendations to mitigate any adverse impacts.

The Des Moines Theater is located at 22333 Marine View Drive in the Central Business District of Des Moines. The structure housing the theater is well over 50 years old, and has been used continuously as a movie theater since its completion. The building consists of a motion picture theater on the first floor with approximately 380 seats, three store fronts with warehouse space below and offices on the second floor.

The theater was first issued a business license in 1960, when the Des Moines business license ordinance went into effect. The theater began showing adult movies in 1971. The present owner, Mr. Richard J. Pappas, has operated the theater since October, 1976. According to community impact statements produced by Mr. Pappas in accordance with City of Des Moines ordinances, adult movies are shown because other types of movies do not produce sufficient ticket sales for a profitable business. The correlation between the amount of business at the theater and the showing of adult movies, however, is difficult for the City of Des Moines to document. The only figures available on tickets sold are on admission tax reports submitted quarterly by the theater. This 5% admission tax, however, was not enacted until 1974, three years after the theater began showing adult movies. Appendix A is a summary of admissions at the Des Moines Theater since the enactment of the admissions tax.

Over the years, there has been a great deal of objection by Des Moines area residents to adult uses and the showing of adult movies in the community. The City has hundreds of letters and petition signatures on file objecting to these uses dated from 1974 to the present. These letters and petitions represent over 600 households, and all but two are opposed to adult businesses. Many of these express that they and the people they know or influence will not shop adjacent businesses because the theater creates the image of an adult use zone. Additionally, in the Community Opinion Survey conducted in March, 1978, the adult theater was among the most frequent features of Des Moines that elicited negative responses (Appendix B). The appearance (deterioration) of business establishments was the Number 1 negative comment regarding business in Des Moines. The evidence gathered since the survey clearly shows a correlation between deterioration of business neighborhoods and the presence of adult uses. Taken in combination, the negative responses on the "X-rated theater," "appearance of business establishments," "hippy shops" (drug paraphernalia) and "massage parlors" was 18.3% (this is a tie for first concern among the subjects under City jurisdiction.)

The City has been carefully studying impacts related to adult uses including the theater since the enactment of Ordinance No. 464 on April 9, 1979 (copy enclosed as Appendix C). Ordinance No. 464 requires impact studies on all adult business. The City has acquired a great deal of information on adult business and their impact through the application of this ordinance and the resultant Community Impact Statements, studies and testimony. The theater voluntarily complied with the requirements of the ordinance by submitting a Community Impact Statement. Although no final decision has been made on the theater under Ordinance No. 464, the impact studies on the theater and other adult uses have been exhaustive. It is important to note that the Ordinance does not address the morality of any legal business transaction. It does address the "third party" impacts, especially economic, that a particular business may have on the immediate neighborhood and the community at large.

In the Washington Supreme Court decision of October 19, 1978, upholding the City of Seattle's zoning enactments requiring that adult motion pictures be located in certain areas of town, the Court noted "much effort and money have been invested in long-range improvement plans for these areas." The City of Des Moines and its business leaders have spent over $37,000 on studies and efforts at revitalizing downtown. Another $20,000 has been budgeted by the City for 1984. Other expenses include many hours of city staff time, volunteer work, and the commissioning of a consultant for an independent follow up study on the specific question of adult uses. A critical question for all of those involved in revitalization is: could the continuing efforts and effectiveness of revitalization be affected by the presence of the adult movie theater and any new adult businesses in the heart of the downtown area?

Although there are federal and state laws that are concerned with adult publications and movies, they do not in any way regulate where adult businesses may locate. The location issue is left to local government.

Besides Ordinance No. 464, the only other local regulations and ordinances directly affecting adult theaters as a use are local zoning regulations. The following inventory itemizes all relevant Zone Code sections pertaining to the location and development standards of theaters in the City:

18.24.020 Permitted uses. (B.C. Zone)

18.24.030 Limitations on uses. (B.C. Zone)

18.28.020 Permitted uses. (B.C. Zone)

18.32.030 Uses requiring a conditional use permit.

Permitted signs. (Chapter 18.42) No special limitations.

Appendix D is a summary of police activity in Des Moines related to the adult theater as stated in Part I of this report.

Des Moines residents have time and time again expressed their concerns regarding the negative impact of the adult theater on adjacent commercial businesses on and nearby residential properties and on the City in general. Among the concerns expressed are the following:

1. Decreasing property values

2. Refusal to shop in an area in which an "adult" use exists

3. Deterioration of the district, including deferred maintenance

4. Parking and traffic problems

5. Attraction of transients

6. Interference with parental responsibilities for children

7. Increased crime

This perception by the public, based on documented testimony at public hearings and letters to City Officials, is a legitimate impact on the community, regardless of the basis for this perception.

This public perception has led to numerous business failures in the commercial areas near the Des Moines Theater. This is indicated by new business licenses being issued. Business turnovers around the theater is approximately four times the average in other comparable areas of downtown. Comparison blocks were chosen for study because of similar building and business development factors (i.e., all buildings with a zero side yard, similar retail shops, similar traffic orientation, etc). Appendix E is a compilation of business turnover in the area near the theater.

The theater has clearly had these impacts on adjacent businesses:

1. Type: Marginal - often adult uses prior to 464

3. High number of business turnovers and failures.

Additionally, according to the previously mentioned public testimony, non-adult businesses are being perceived as adult uses by the public. This "guilt by association" is probably a factor in the high number of business failures near the theater. The citizen's desire to shop local businesses is vital to those businesses' survival. This perception, then, is creating a substantial negative impact on nearby businesses. The citizens also have a right to safety and security. A business that reasonably bears on a citizen's security or perception of security is a legitimate impact.

Public testimony, staff studies and independent consultant studies all confirm the following findings:

The negative effect of adult businesses is also evidenced in other states and communities by their enormous effort and expense to rid themselves of or at least control adult businesses, including adult movie theaters. Some of these examples include:

North Carolina's "single use law" which allows only one kind of "adult entertainment" in a building. Thus an adult movie theater may not sell adult books or an adult bookstore run automated peep shows. Also in North Carolina, no adult drive-ins may locate within 2,000 feet of residence or within viewing range of juvenile, and no adult films may be shown until after 11:00 p.m.

In Detroit, Michigan, adult uses cannot locate within 1,300 feet of each other or within 500 feet of a residential area unless 51% of the local residents and businesses approve.

In Prince George's County, Maryland, adult uses are not allowed within 1,000 feet of school and within 500 feet of a church, and doors and windows of all adult enterprises must be blackened.

Significant efforts in controlling adult theaters in Washington will be discussed in Section V.

Based upon the facts brought out in this report and the findings herein established, several conclusions and recommendations can be made regarding adult movie theaters in Des Moines.

Basically, it has been established by the U. S. Supreme Court that every community has a right to protect its values. A 1973 U. S. Supreme Court decision recognized that legitimate community interests are at stake in protecting their values and that these interest may be applied through ordinances and regulations against adult movies and uses. Such interests include the interest of the public in the quality of life and the total community environment, ...and possibly the public safety itself.

As has been seen in Section IV of this report, the negative impact has been found significant. There are two basic questions (asked at public hearings) that must be addressed regarding adult uses.

Through the data gathered in community impact studies produced in compliance with Ordinance No. 464 and through public testimony, it must be concluded that it is not in the community's interest to retain an adult movie theater in the downtown area of Des Moines. Findings have shown the following reasons to support this conclusion:

The tremendous effort and expense of the City toward improving the downtown is indicative of a large community commitment to the long range improvement of downtown. It has also been seen that other cities have spent a great deal of time, energy, effort and money in establishing ordinances to control adult uses, particularly adult theaters.

The validity of zoning enactments requiring that adult motion picture theaters be located in certain downtown areas was upheld by the Superior Court, King County, Frank J. Eberharter, J., and theater operators appealed. The Supreme Court, Horowitz, J., held that: (1) the ordinance was fully adequate to give operators notice of regulated use, and they had no standing to challenge it for vagueness; (2) the operators had no standing to assert First Amendment rights of others so as to challenge the ordinance for facila overbreadth; (3) the theaters failed to establish that the ordinance was impermissible prior restraint on protected First Amendment Speech, in view of a finding that the ordinance did not have any significant deterrent effect on exhibition or viewing of such films; city's most important interest in regulating use of its property for commercial purposes was sufficient to justify such zoning regulation; (4) there was reasonable classification, no violation of equal protection, by the ordinance, and (5) the ordinance was reasonable, not denying due process of law, insofar as terminating all nonconforming theater uses within 90 days, in view of the fact that the theaters were not bound to show adult films as opposed to any other type of film and did not come forward with any clear evidence of economic harm." (Emphasis added).

This zoning of the City of Seattle was the culmination of a long period of study and discussion of the problems of adult movie theaters in other areas of the City.

Similarly, the City of Des Moines has had the opportunity, primarily through its Community Impact Ordinance, Revitalization Study and activities and public testimony to study and discuss and analyze at length the entire question of an adult movie theater in the central business district of the community.

If, then, the City should not allow adult theaters in the downtown, where, if at all, should the City allow such a use? It is quite clear from the Seattle case and other city ordinances and court findings that banning adult theaters altogether might be successfully challenged as an infringement of the U. S. Constitution's First Amendment. A major factor in the State of Washington's Supreme Court upholding the Seattle Ordinance was the fact that adult theaters were allowed in another part of the City.

The only other commercial area in Des Moines in which any kind of movie theater would be compatible with other permitted uses is in the CG zone along Highway 99 (Pacific Highway South). An adult theater on Highway 99 would clearly have less of an impact than in the central business district. Highway 99 is less concentrated with much more parking available.

In addition, over the years Des Moines Comprehensive Plan has distinguished between their two commercial areas. The downtown is perceived as a pedestrian and community-family oriented shopping service area. Because of higher speed limits, more traffic, and lower density, the 99 commercial strip, on the other hand, is seen as automobile oriented shopping of a more regional nature. The current Des Moines sign ordinance distinguishes between these two areas, and the Des Moines City Council is just now beginning discussion on a new zoning district for the downtown.

In its Community Impact Statement, the theater claimed much of its clientele came from the City. The preponderance of administrative and public study and testimony refutes this. It is concluded that the "survey" referred to was either "flawed" or that the clientele changed drastically in the last 3 or 4 years to mostly out of town. Highway 99, from a pure business sense, is a better location for the owner of such a use. Public testimony regarding the theater also reflects the attitude that if adult theaters are to be allowed in Des Moines, they should be on Highway 99.

If, then, the City's zoning code should be amended to allow motion pictures along Highway 99 and not allow them in the downtown area, should they be "concentrated" or dispersed along the highway?

Chief of Police Martin Pratt, in his memo of 1-4 recommends that adult uses be dispersed. He feels that dispersed would greatly reduce the crime and patrol problem:

Not only would the dispersal reduce crime potential, but lessen its impact. By the same token, in order to safeguard family oriented activities, minimum distances should be established between adult theaters and such uses as churches, schools and public parks.

YEAR QUARTER ADMISSIONS

1974 4 1259

1975 1 985

1975 2 954

1975 3 1120

1975 4 2279

1976 1 3784

1976 2 4129

1976 3 4870

1976 4 3191

1977 1 3378

1977 2 3827

1977 3 3840

1977 4 3195

1978 1 3496

1978 2 3453

1978 3 3583

1978 4 3327

1979 1 3468

1979 2 3299

1979 3 3668

1979 4 3837

1980 1 5552

1980 2 4717

1980 3 5135

1980 4 4799

1981 1 5511

1981 2 4889

1981 3 4851

1981 4 5131

1982 1 5066

1982 2 4377

1982 3 4507

1982 4 4557

1983 1 4909

1983 2 5056

1983 3 4409

1983 4 4463

1984 1 5082

38 Qtrs. 147,953 Total Admissions

Negative Comments: No. of Responses %

1. Airplane Noise 150 21.6

2. Condition of Streets/Sidewalks 127 18.3

3. Appearance of Business Establishments* 78 11.2

4. Apartments 68 9.8

5. Businesses Lack Variety 51 7.3

6. Traffic Congestion/Safety 45 6.5

7. X-rated Theater* 40 5.8

8. (Tie) Police Department 28 4.0

Dogs Running Loose 28 4.0

10. Rundown Housing 17 2.5

11. Metro Bus Service 12 1.7

12. (Tie) "Hippie Shops"* 8 1.2

(was a drug paraphernalia shop)

Concorde 8 1.2

14. Local Government 7 1.0

15. Marina 6 0.9

16. Trees Obstructing Views 5 0.7

17. Postal Service 4 0.6

18. (Tie) Overhead Wiring 3 0.4

Smell from Dump 3 0.4

20. (Tie) Administration of Water District #54 2 0.3

Mobile Homes 2 0.3

22. (Tie) Massage Parlors - Adult* 1 0.1

Newspaper 1 0.1

TOTALS 695 100.0%

*Note - total negative comments directly or indirectly related to adult uses - 18.3%.

June 7, 1984

Mr. Stan McNutt

City Manager

City of Des Moines

Des Moines, WA

RE: Independent Planning Consulting Report on Adult Uses in the City of Des Moines

Dear Mr. McNutt:

At your request, we did an independent study for recommendations to the City Council concerning policy directions to be undertaken by the Council relative to adult uses within the City. As you and the Council are aware from our previous efforts on the Revitalization Study, we are familiar with the community, the citizens and the character of its business district.

Our study set forth to look at adult uses and consider the following elements:

1. Zoning Study

2. Land Use Impacts

3. Impacts on the Revitalization Plan

In order to do this we set forth the methodology with steps including the following elements:

1. Discussion with other city officials who have been involved in the reviews of this type of use within their communities.

 

2. A review of the record of the hearings by the City Council on this matter in Des Moines.

Our efforts have been concentrated in the last couple of weeks to review these items listed above. However, it is complemented by my 8 years of officing at 3rd and University in Seattle, whereby I have observed land use impacts of adult type uses on 1st, 2nd and 3rd Avenues near my office. And the impact on adjacent land uses, signage, street treatment, and the general character of the urban area. This effort was supplemented by a review of locations such as Bremerton, Redmond, Renton, Northend Seattle, Aberdeen, etc., to ascertain the general character of land uses and the economic impacts of this type of use in any given area of a community.

Following work efforts, a detailed report shall be provided the Council in the near future. However, some of the conclusions and observations may be appropriate. They are as follows:

I hope this Memorandum is helpful to the Council as a status report of my study observations and conclusions. A full report will follow.

Respectfully submitted,

Robert W. Thorpe, AICP

(1)Report writer is an appraiser (MAI) candidate as well as a certified planner.

AN ORDINANCE OF THE CITY OF DES MOINES requiring a study of the impact certain types of business will have on the Des Moines community if they are issued a license, authorizing denial of a business license on a finding of significant adverse community impact, and providing appellate procedures.

WHEREAS, the City of Des Moines is primarily a residential community providing a labor force for nearby industrial areas; and,

WHEREAS, the traditional orientation of the community, and that which is planned for the future, is for family commerce, recreation, education and worship; and businesses and activities which are not family oriented are inconsistent with the existing development and future plans for the Des Moines community, and may have an adverse impact upon the same; and,

WHEREAS, such businesses have been found to appeal to special populations and often bring outside influences into the community which increase the crime rate and undermine the moral and social values of the family members; and,

WHEREAS, existing businesses find that as the character of the commercial environment changes, their business drops off, property values decrease and merchants serving the general community are forced to move out of the central business district, leaving it in a vacant and deteriorating condition; and,

WHEREAS, businesses which are not family oriented, and which would contribute to this adverse situation, should be encouraged to locate in other communities where their patronage would be more probable and profitable, and where their impact mould be more acceptable; now, therefore:

THE CITY COUNCIL OF THE CITY OF DES MOINES DO ORDAIN AS FOLLOWS:

Section 1. The City of Des Moines shall require a study and review of the probable impact on the community of any proposed business activity oriented towards serving or attracting a special population of customers, and not oriented toward activities reasonably related to the health, education and welfare of the family.

Section 2. No business license or renewal of business license shall be issued to any business which is determined by the City Manager to be oriented toward serving or attracting a special population of customers, and not oriented towards activities reasonably related to the health, education and welfare of the family, until such proposed business has first prepared and submitted to the City Manager a Community Impact Statement, as described in Section 3 below; provided that the following businesses shall be exempt from this requirement:

Section 3. A Community Impact Statement shall contain, at a minimum, the following elements:

1. Profile of customers;
2. Market area;

Section 4. A completed Community Impact Statement shall be filed by the applicant with the City Clerk. Copies of the same shall be distributed by the Clerk to all Council members, all City facilities, Secretary of the Highline School District, Secretary of the Des Moines Chamber of Commerce, and to any other parties requesting the same. The City Clerk may assess a charge for the cost of copying any statements issued to private parties. Within thirty days of the date the statement is filed with the Clerk, the City Manager shall either grant the business license, or shall call a hearing for the purpose of considering the same. At the conclusion of the hearing, and any continuances thereof, the City Manager shall either grant or deny the business license, entering written findings of fact supporting his decision should such decision be to deny the business license. It shall be valid grounds for denial of a business license if the City Manager finds that a proposed business will have a significant adverse impact upon the community and will be significantly inconsistent with the purposes of this Ordinance, as stated in the preamble hereof. The possibility of mitigating measures shall be taken into account. If a denial is ruled, the applicant may appeal the decision to the City Council by filing an appeal request within ten days of the date of such written decision with the City Clerk. The Council must schedule a Public Hearing to consider the appeal no later than ninety days after the filing of the appeal request. After hearing the appeal, the decision of the Council shall be final.

Section 5. All procedural elements of this Ordinance shall have retroactive as well as prospective application to any and all businesses that have not received a final and unconditional business license on the date of enactment hereof. The substantive elements of this ordinance are deemed to be necessary for the immediate protection of the public health, safety, and welfare, and shall also apply to said businesses.

Section 6. If any provision of this Ordinance, or its application to any person or circumstances is held by a Court of competent jurisdiction to be invalid, the remainder of this Ordinance, or the application of the provision to other persons or circumstances, shall not be affected and shall remain enforceable as originally enacted.

PASSED BY the City Council of the City of Des Moines this 9th day of April, 1979 and signed in authentication thereof this 9th day of April, 1979.

________________________________

APPROVED AS TO FORM:

________________________________

City Attorney

ATTEST:

________________________________

City Clerk

Published: April 13, 1979

Name of Applicant ________________________________ Date ________________

Name of Business ________________________________

Location __________________________________

Description of Business Activity

Review Checklist: (Please comment and initial)

Zoning __________________________________ __________ Planing Dept.

Building Code ____________________________ __________ Eng. Dept.

Parking _________________________________ __________ Eng. Dept.

Traffic __________________________________ __________ Eng. Dept.

Fire ____________________________________ __________ Fire Dept.

Health __________________________________ __________ Health Dept.

(if applicable)

Police __________________________________________________________

___________________________________ __________ Police

Ordinance #464 "Threshold" determination (check one)

Ordinance #464 threshold determination made on ________________________

date

READ THE ORDINANCE.

Copies are available at City Hall. The City will mail copies on request and provide copies when invited to give briefings at group or community meetings. The City will be happy to explain any and all details of the Ordinance to all parties pro or con.

UNDERSTAND THE ORDINANCE.

Ordinance 464 does not address the morality of first and second party transactions in legal business operations. The Ordinance is concerned with third party (innocent-nonconsenting) impacts only.

AVOID THE FRUSTRATION OF UNPRODUCTIVE ACTIVITY.

Anonymous letters, petitions and even political pressures are totally ineffective during the time a specific business license is being considered under Ordinance 464. All decisions must be made solely on the basis of the accumulated information as provided in the Ordinance. Confine your activities where possible to documenting the impact or potential impact to you or your family or business. When others are impacted, have them provide the information.

PROVIDE SPECIFIC INFORMATION.

If a hearing is called provide testimony as to how the proposed business would effect you.

1. What is your opinion of the business area or location?

2. Have you shopped there in the past?

3. Would you shop there if the proposed business license were granted?

If you have been witness to something which might have a pro or con bearing on a Community Impact Statement, gather specific information. Write down all details such as dates, times, persons, places, situations and all other circumstances which have a bearing. Be sure your facts are truthful, accurately stated and opinions are represented as opinions. The City will advise you as to protection of privacy in cases where information may be personally delicate.

HELP EDUCATE OTHERS AND URGE THEM TO HELP GATHER INFORMATION IF A HEARING IS CALLED.

Ordinance 464 represents a relatively new approach to protection for family communities. If a hearing is called, participate!

*Business is still in operation.

*Business is still in operation.

I. SUMMARY OF FINDINGS

II. RECOMMENDATIONS

III. INTRODUCTION

A. State Law

B. Local Law

C. Literature

IV. REVIEW OF LITERATURE AND ORDINANCES

V. SITE VISITATIONS

VI. IMPACTS

VII. ZONING APPROACHES

VIII. CONCLUSIONS/RECOMMENDATIONS

August, 1984

Mr. Stan McNutt

City Manager

City of Des Moines

21630 11^th Avenue South

Des Moines, WA 98188

Dear Mr. McNutt:

SUMMARY OF FINDINGS:

At your request, we conducted an independent study for recommendations to the City Council concerning policy directions to be undertaken by the Council relative to adult uses within the City. As you and the Council are aware from our previous efforts on the Revitalization Study, we are familiar with the community, the citizens and the character of its business district.

Our study set forth to look at adult uses and consider the following elements:

1. Zoning Study

2. Land Use Impacts

3. Impacts on the Revitalization Plan

In order to do this we set forth the methodology with steps including the following elements:

1. Discussion with other city officials who have been involved in the reviews of this type of use within their communities.

 

2. A review of the record of the hearings by the City Council on this matter in Des Moines.

Our efforts were concentrated in May-July to review these items listed above. However, it is complemented by my 8 years of occupying office space at 3rd & University in Seattle, whereby I have observed land use impacts of adult type uses on 1st, 2nd and 3rd Avenues near my office. I also have observed the impact on adjacent land uses, signage, street treatment, and the general character of the urban area. This effort was supplemented by a review of locations such as Bremerton, Redmond, Renton, Northend Seattle, Aberdeen, etc., to ascertain the general character of land uses and the economic impacts of adult entertainment in any given area of a community. Following further work efforts, a detailed report shall be provided the Council in the near future.

However, some of the conclusions and observations may be appropriate. They are as follows:

Respectfully submitted,

Robert W. Thorpe, AICP

RWT:mc

(1)Writer is Institute of Real Estate Appraisers (MAI) candidate.

The following study is a review of available literature and analysis of the impact on sites in similar communities throughout Washington and impacts on the Des Moines Central Business District as well as a review of various approaches in other communities. The review of over 600 pages of reference material studies, court cases and transcription of public testimony leads one to the conclusion that adult businesses are both by their actual impact and their perception, distinguishable from other businesses in terms of their land use impacts. They are further distinguished in terms of the character of the product, and the service they are providing. This fact is pointed out through detailed analysis in similar studies by various communities in State of Washington in which this report is largely based, as well as first hand observations. Adult uses may have adverse impacts on surrounding land uses, business turnover, deferred maintenance, quality of environment, and perception of the desire of people to frequent that area.

Various approaches have been utilized by a number of communities throughout the State of Washington as well as throughout the country in cities such as Detroit, New York, New Orleans, Denver, Seattle, etc. Although the experience is mixed in cities nationwide and throughout Washington, zoning has been utilized as one tool in containing, controlling or directing the various impacts which adult uses may have, on a community's viability, its opportunity for revitalization and the quality of lifestyle.

This study is an overview analysis of the regulation of adult uses in the City of Des Moines and their impact on revitalization efforts that are ongoing in the City. The study includes a review of literature and a look at six or more sites in the State of Washington for the impact of adult businesses. It reviews, in brief summary, the impact of ordinances in other communities, zoning alternatives for mitigating the adverse impacts and sets the ground work for analysis by the City Attorney as to adult use law and legal guidelines.

The goals and purposes of the Des Moines CBD Revitalization have been well documented through the Phase I and Phase II Study and completed in 1983 by R.W. Thorpe & Associates, Mundy/Jarvis, the TRANSPO Group, and the Makers with close cooperation of the entire city and business district tenants/owners. The goals and policies of the community are further identified in various planning documents such as the Comprehensive Plan, Shorelines Master Program, Park and Recreation Plan, and other statements of general community intent, direction and purpose. Through the use of Subdivision Ordinances, Capital Improvements Program, and Zoning Codes, these Comprehensive Plan and revitalization studies are implemented. It appears appropriate that some of the adverse land use impacts of adult uses are appropriately addressed through city policies, zoning code requirements, design review and adult use permit approval procedures. It may be summarized that some various approaches may be appropriate for the City Council in its future deliberations on this matter. Some of the alternatives or options may include:

Although prohibition of all adult uses altogether, may be perceived by some as an option, the experience of review of all of the literature, ordinances, court cases and experiences, is that this is not a viable alternative and that some provision needs to be made for their locating somewhere within the community while protecting the goals and policies of the Comprehensive Plan and certain already well-positioned activities for residential, educational, recreational, religious and other pursuits.

In terms of allowing uses, the question then may become one of two approaches or a modification of the two:

a. Provide for concentration of the uses or;

b. Dispersal;

c. Modified concentration or dispersal.

The conclusions of this report is that Alternative C is more appropriate with a standard set for a minimum distance, say 1000 feet (or some other distance standard) from residential zones, churches, parks, schools, etc. In order for this to be implemented, the City Council would need to direct the Planning staff or the City Attorney to develop regulations for amending the zoning code and codeffication of that amendment to the City ordinances. Also, goals and objectives would need to be part of the ordinance and it would be necessary to include the following:

For the past several years there has been lengthy discussions within the City of Des Moines as to the merits or demerit of inclusion of adult uses within the City of Des Moines. This was particularly brought to light during the recent Revitalization Study where the impacts of these uses were identified and considered as part of the goals and objectives with improving and revitalizing Des Moines Central Business District. In order to review this type of use, the City has set forth certain procedures whereby the review of these uses shall be by an established procedure and public testimony as taken as to their value to the community. Further, the City has requested that a consulting planner, R.W. Thorpe & Associates, Inc., review existing literature, the record of hearings before the City of Des Moines, visit sites of various other adult uses, and provide a summary report as the impact of adult uses on those communities. The Study, as with other communities, past and on-going study efforts establishes that the impact of adult uses is both actual in terms of the impact on adjacent uses and the community, as well as perceived. The focus of this Study is to identify those impacts by site visits, explore how other communities have provided for areas to respond to the demand for this type of use, while at the same time, protecting the health, safety, general welfare of the community and specific land uses devoted to residential, recreational, education and religious purposes. The City of Des Moines has been endeavoring to evaluate its current zoning regulations as to differentiate the adult uses from general business activities.

The purpose of this analysis, the report to the City Council as authorized by the City Manager at the direction of the Des Moines City Council to determine if the testimony being received by the City could be supplemented or complemented by a special study by a consultant planner with appraisal background to ascertain the impact on the Central Business District Revitalization Study, residential neighborhoods, religious uses, and recreational facilities in the community in general. If these effects can be identified, the City may be able to utilize an analysis of those impacts as well as the experience of other communities to devise methods to offset the adverse land use impacts through regulatory changes. One of the methods utilized is that other alternate zoning approaches of other communities will be considered in their broad range where their potential application to the Kent community.

The scope of the study focuses largely on adult motion picture theaters, and adult bookstores. However, because of the nature of the activities in the Des Moines environment, particularly along Highway 99, north of the city, the study also includes a cursory look at adult motels, massage parlors, body painting studios, "head shops" and other similar uses. The writer in reviewing other reports, particularly the Kent Adult Use Study, has chosen to exclude places where alcoholic beverages are served and gambling establishments.

Although a portion of the testimony given to the City of Des Moines centers on a perception of whether adult entertainment is distasteful, immoral, unethical, or disruptive, it is not within the scope of this study to evaluate adult uses based upon moral or pornographic terms. Clearly this should be left to the advice of the City attorney and the courts. The focus of this study is land use impacts associated with adult uses, not matters of personal discretion and taste or that of one individual choice of services or goods obtained.

In sum, the purpose of this study is to see if these uses can be located where their impact, or be minimal to other elements of the community and further that their impacts of the specific sites can be mitigated through zoning regulations or conditional use approval processes.

In order to prepare for this summary report the author has reviewed over 600 pages of documents, transcripts that I have conducted as a basis for public input at the City Council meeting, ordinances, and conducted six "adult uses" site visits. This report is a summary of the writer's observations and conclusions and is written with the intent that the background data is available for public testimony or research information for ordinance writing. The review includes a review of several documents listed in the reference list at the end of this report. A brief review of the State laws, the local laws, information available from American Society of Planning Officials, Presidential Commission on Obscenity and Pornography, Land Use Law, Digest, and ordinances from several cities in the State of Washington as well as review of State and Washington community laws.

State Law

Based on our review of several local ordinances, their citations indicate that regulation of adult businesses through zoning or businesses license is part of the local police power. The federal and state laws address adult publications and films but are not specific in terms of administration of the location of adult businesses. ROW 9.68.050 sets forth requirements for books and films to be labeled as "adults only" attempting to limit the exposure to minors. The definitional section under this is as follows:

Thus, persons under the age of 18 are attempted not be exposed to explicit films and publications. State Law also provides for review of massage parlors, under RCW 18.108 and topless dancing under the Washington Criminal Code RCW Title 9A. Massage parlors prohibit minors working in such activities and topless dancing and nude entertainment cover such illegal acts such as prostitution, indecent liberties, or public indecency. Washington State Communities Laws.

A review of approximately 8 regulations within the State of Washington shows that various approaches are used in regulating. The primary one appears to be the zoning approach whereby the businesses are 1) concentrated, 2) dispersed or 3) in a modified dispersal pattern at specific areas designated on a zoning map. In addition, several communities have used licensing requirements, conditional use permits, or general welfare provisions to regulate these matters. In summary, it appears that most communities have taken slightly different directions based upon public testimony, their advice of their City Attorney, and Planning staffs recommendations as to the regulation of adult uses and their location.

Most of the adult use ordinances have been adopted in the last eight to ten years following public response and demonstration over the inclusion of these land uses in various communities. Noteworthy examples are the North End Cinema in Seattle (Greenwood), the Forbes Theater in Redmond, the Forbes Theater in Renton, and the adult movie theaters in Bremerton and Aberdeen. However, each communities zoning regulations differ somewhat and those in Washington differ from national examples of Boston, New Orleans, Detroit, etc. Seattle follows the Boston example of concentrating adult uses throughout the commercial areas of downtown. The City of Redmond has utilized an approach based upon the combinations of the court cases from Detroit and Boston which sets up specific distance requirements in designated commercial areas. The City of Renton is following a similar pattern in their ongoing court action with Forbes Theaters, use of the Boxy Theater in downtown Renton.

Two key examples are Boston, which concentrates adult businesses in a small zoning district located in the commercial core, and conversely, Detroit. The latter allows adult uses in designated commercial zones as long as a 1000 ft. distance between each individual use is maintained.

The North End Cinema - City of Seattle (Wa. 585 p.2d 1153) case provides some guidelines for zoning standards and the regulation of the adult theaters. The Supreme Court of Washington in October of 1978 set forth the following points:

The City of Blaine, Washington includes in its ordinance adult bookstores, adult motion theaters, adult mini-motion picture theaters, and shoeshine parlors, and sets forth the standard of minimum distance of 1000 ft., between each use and 500 ft., from any residential dwelling or rooming unit.

The City of Kirkland sets up a specific zone by an overlay district and performance standards can be reviewed in a public hearing process. First the property owner must apply for a rezone to place an "AE" designation on the zoning map for the subject property. This requires a public hearing before the Planning Commission and final action by the City Council. Requests must correspond to one of the City's commercial zones. The City of Kirkland utilizes a standard of 1500 ft., away from the school, park, or other establishments which caters primarily to minors. It can be proven only if the City Council has the final action taken before them. This approach places the burden of application and proof on the individual proponent and provides protection for those places where young people congregate such as schools, parks, and youth clubs.

The City of New Orleans utilizes a historic landmark district and ascertains the impact on adjacent uses and the character of the area, particularly as it applies to the French Quarter in New Orleans which has a specific planned area with special development standards as does the Revitalization Area in Des Moines.

It appears that the City of Des Moines zoning policies are being prepared to differentiate adult uses from similar business establishments and activities. That is, an adult movie theater would be distinguished from simply a movie theater as far as existing zoning regulations are permitted. This would be a step away from allowing adult bookstores to be treated as general bookstores and, adult movie theaters as movie theaters as far as the Zoning Code is concerned.

This type of adult use is concentrated on Des Moines Way in the adult movie theater and the adult movie bookstore, and in the past some small shops selling materials that may be utilized in some people's viewpoint as drug paraphernalia. The other area that appears that this use might occur is along Highway 99.

1. North Seattle.

A review of the record of testimony by individuals involved in the North End Cinema indicated that the property owners sited noise, late hour use, vandalism, increased crime, and other factors in their concern about the nuisance element of this theater. Since the removal of this theater, the intent to preserve the quality of the neighborhood through effective land use planning appears to have been achieved. Discussions with City of Seattle staff indicate that no complaints of the nature previously received have occurred within the area of this theater.

2. Seattle: First Avenue and 3rd Avenue & Union Sites - Adult Cinemas.

Most of these uses are concentrated in approximately a six square block area between Seneca Street on the South and Pike Street on the North, and between 1st and 3rd Avenues in downtown Seattle. At the time of this report, there were discussions to revise the 3rd Avenue Cinema to remove the adult pictures and revise this into "legitimate theater" and restaurant use. Conversations with Carma Developers concerning their use and other developers along 1st Avenue (at Union) indicated that the number of those uses would be phased out as those buildings were rehabilitated. The general observation of these buildings is that these buildings and their uses create deferred maintenance, functional obsolescence and some general decline in upkeep and visual appearance of the existing buildings and adjacent uses.

A discussion with a Seattle police officer assigned to this area indicated that the highest incidents of crime (evening hours) in Seattle occur on 1st and 2nd Avenues in this area, particularly among teenagers.

Some associated decline in contributory value may be able to be ascertained by a review of rents of these facilities. These Seattle areas are frequented by heavy foot traffic due to the desire of people to go from the office areas of 3rd through 6th Avenues to the Pike Place Market and the Waterfront, therefore people pass through these areas. However, people passing through do not appear to be those frequenting the establishments. The image of these streets is far different in the minds of people of Seattle than that of 4th, 5th and 6th Avenues in terms of cleanliness, quality of shops, safety and economic return for these types of uses in the building.

3. Renton.

Renton has two theaters located across the street from each other on 4th Avenue in the downtown area -- the Renton and the Roxy. One theater was converted to an adult theater use. Litigation by the City against Robert Forbes for the use of this theater for adult movies is pending at the time of this report. Contact with Dave Clemens, Policy Planning Director and Roger Blaylock, provided a review of the history of the development with Renton's Ordinance and their legal argument. This information has been available to the Des Moines City Attorney. Renton is attempting to utilize a modified diversion method to locate theaters away from schools, housing and recreational areas. This subject theater is located approximately 3 1/2 blocks from the Renton High School, 3 blocks from the Catholic grade school, and is close to several parks. The City of Renton is attempting to base their case upon their new ordinance for dispersion of use, minimum setbacks from schools and residents and establishing a standard abatement schedule time period.

4. Bremerton.

This theater located on Calisan Street, in the Charleston area of Bremerton outside of the Central Business District, has, due to the adult theater nature, encouraged adult bookstores and similar uses on the west side of the block in the area. The east side is occupied by two strong neighborhood "anchor" tenants, an appliance store and a shoe store. There is a marked difference in the maintenance and general character of the two sides of the street. At the time of the writing of this report, there was some understanding by City officials that this theater would be converted to non-adult theater, family motion picture use.

5. Aberdeen.

Discussions with the City Planner reviewed the history of their attempts to remove an adult theater use from downtown Aberdeen. The City Planner cited increased instance of crime, negative impact on adjacent land uses, increases vacancy in adjacent shops and that the use was counter to the general purposes and objectives of the comprehensive plan in their reasons for seeking abatement of that use.

6. Redmond.

This site like Renton was in the process of being reviewed by the City. Discussions with members of the City Planning Staff indicate that problems similar to the North End Cinema were cited related to crime, late night disturbances, and impact on adjacent uses in terms of desirability of tenants to remain in the area.

7. Adult Uses in Des Moines.

The primary adult use in Des Moines is the adult theater on Marine View Drive, (and previously a "Head Shop") in the heart of the Des Moines revitalization district. Review of the public testimony indicates that a significant percentage of the community reduces their shopping trips to the business district area to avoid these uses. Due to the turnover in shops adjacent to these uses in the same block, some difficulty was encountered by the consultants on the Revitalization Study as to the future use of this block. The uses not only provide a perceptual problem with people desiring to shop in the area, they provide somewhat of a "deadhand" in the planning process for the upgrading of this area and the revitalization of the Des Moines Business District.

The police record provides a review of various other adult type uses such as the selling of drug paraphernalia, at a "head shop" and other historic uses in both the Business District area and along Highway 99 that have provided complaints and requirements for increased police activity.

Based upon my review of the literature from various communities and visual observations of several other sites, as well as an in-depth understanding of the Des Moines Business District through the Revitalization Study, some overview summary comments as a basis for public testimony can be set forth here as to the special impacts of adult uses. In order for the City Council to better plan for the regulation and location of adult uses, these special impacts provide certain insights. Although only part of the data is taken from the City of Des Moines, the majority of the information comes from other communities in Western Washington that provides some basis for policy direction by the City of Des Moines.

1. Crime.

The City of Kent Adult Use Zoning Study has a thorough discussion of the incidence of crime in several other communities and is a good reference for the City Council in their review.

2. Land Uses.

The writer of this report is a certified planner (AICP) with educational and work experience in the real estate appraisal field, and presently is a candidate for the MAI appraisal designation. Utilizing this combined background in my visits to various other sites, some general observations concerning land use, social impacts and land economics can be made of most of the sites. There appears to be a definite impact on adjacent land uses, the turnover of tenants, deferred maintenance, functional obsolescence, maintenance of access areas such as streets and parking lots surrounding these uses. The improvement or decline of business areas or neighborhoods has been well documented in many planning studies as having both physical and "perceived" elements. That is, if people perceive an area as improving, they may work to invest money and improve the overall area. That is, a strong new anchor tenant that comes in and improves a key piece of property encourages other owners and tenants to do the same. Conversely, a tenant that in other peoples perception is creating a decline in property values or "image," contributes to their management decisions to defer maintenance, defer upgrading of buildings and put less emphasis on that piece of property as an investment part of their portfolio. This secondary impact appears to be occurring in several communities where this type of location has occurred. Noteworthy are Bremerton, Seattle, and Aberdeen. Some small impact appears to be occurring in Des Moines in a similar vein.

3. Economic Impact.

There appears to be some increased turnover in tenants adjacent and near these uses. And further, a location of similar type of uses in the area. My discussion with some seven real estate appraisers leads to some different conclusions that that of the survey of the City of Kent. The appraisers perception of various communities of which they are located, (Renton, Bremerton, Seattle, Redmond) indicates that they feel that this type of use when included next door to other healthy businesses may result in a reduction of property values and/or rental income stream. Most appraisers felt that there is a negative impact on residential property values as well as an impact on business property values. Several felt that the change in key anchor tenants on 3rd, 2nd and 1st Avenues in downtown Seattle would possibly induce these areas to upgrade and provide stronger office use on upper floors and comparison shopping on retail floors that had street access. Therefore, my discussions and interviews arrived at a slightly different conclusion that that of the Kent Land Use Study.

4. Community Impact.

The proliferation of adult uses has occurred in the Puget Sound area in the last six to ten years. City staffs, Planning Commissions, and City Councils have been wrestling with zoning and comprehensive planning approaches to address these uses and the perceptions of residences as to their impacts. A number of communities have reviewed these matters and there is on-going discussions by the association of suburban mayors, city attorneys, city planners and other groups.

The general consensus appears to be that adult uses are incompatible with residential, religious, educational and recreational use