TO: Mayor and Commissioners
FROM: Timothy Stillings, Planning, Zoning, and Building Director
THROUGH: Donald B. Cooper, City Manager
DATE: June 7, 2016
Title
CITY COMMISSION APPEAL OF THE MARCH 21, 2016 PLANNING & ZONING BOARD SIMILARITY OF USE DETERMINATION FOR TATTOO ESTABLISHMENTS (QUASI-JUDICIAL HEARING)
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Recommended Action:
Recommendation
Consideration of appeal of the March 21, 2016 Planning & Zoning Board Similarity of Use Determination for Tattoo Establishments.
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Background:
On December 29, 2015, the United States Court of Appeals for the 11th Circuit, in Buehrle v. City of Key West (Exhibit A), concluded that tattooing constituted artistic expression protected under the First Amendment of the U.S. Constitution. As protected artistic expression, a municipality may regulate protected artistic expression only if the regulation: (1) is justified without reference to the content of the regulated speech, (2) is narrowly tailored to serve a significant governmental interest, and (3) leaves open ample alternative channels for communication of the information. Effectively, the City of Delray Beach may regulate tattoo studios, parlors, or related uses through reasonable time, place, and manner restrictions with supporting evidence for such restrictions based upon the three criteria.
Currently, Delray Beach’s Land Development Regulations (LDRs) does not specifically list tattoo establishments or related uses as a principal, accessory or conditional use. Therefore, an interpretation was necessary to determine whether or not the use is allowable through the similarity of use process [Sec. 4.3.2(C)(1) and (2)] until such time as the LDRs are amended to include regulations for tattoo establishments.
Pursuant to LDR Section 2.4.5(N)(5), prior to approving a determination of similarity of use request, the Planning and Zoning Board must find that the requested use is indeed similar to a use allowed in the referenced zoning districts and as defined by the LDRs. The specific request was for a Board determination that a Tattoo Studio is similar to Professional Service Providers, as listed in LDR Section 4.4.9 of the GC zoning district (within Services and Facilities) and Appendix A, Definitions. While the Applicant is interested in establishing a tattoo studio at 165 Avenue L, the similarity of use determination would apply to all zoning districts that permit Personal Service Providers (also referred to in Services and Facilities) including Neighborhood Commercial (NC), General Commercial (GC), Central Business District (CBD), Planned Commercial (PC), Resort/Tourism (RT), Old School Square Historic Arts District (OSSHAD), and Mixed Residential, Office, Commercial (MROC) Districts.
The Planning & Zoning Board approved (5-0; Krall and Pike absent) the Similarity of Use Determination for the Tattoo Establishment as similar to Personal Service Providers, i.e. barber and beauty salons, or Services and Facilities as a permitted use within any zoning district permitting these uses. The Planning & Zoning Board discussion included state regulations regarding tattoo establishments and health regulations. Concerns also included whether the request included body piercing and future considerations of regulations related to time, manner, and place regulations and how these would be different for tattoo establishments versus a barber shop or salon. This will be addressed as part of the pending amendment to the Land Development Regulations.
Included with this item is the Staff Report and documentation for the March 21, 2016 Planning & Zoning Board Similarity of Use Determination for Tattoo Establishments. An LDR text amendment to address time, place, and manner restrictions for Tattoo Establishments is being drafted and tentatively scheduled for consideration by the Planning & Zoning Board on June 20, 2016, for a recommendation to the City Commission. The City Commission 1st reading for the draft text amendment would be August 2, 2016.
Staff Recommendation:
In preparation for the appeal and in consultation with the City Attorney’s Office, the staff is presenting two alternative actions for the City Commission. Both of the recommendations comply with the three criteria for regulation referenced earlier. The two alternative actions are:
A. Motion to deny the appeal and uphold the March 21, 2016 Planning & Zoning Board Similarity of Use Determination for Tattoo Establishments.
B. Motion to deny the appeal and uphold the March 21, 2016 Planning & Zoning Board Similarity of Use Determination for Tattoo Establishments for the Applicant’s location at 165 Avenue L and declare a Zoning in Progress (ZIP) regarding use regulations for Tattoo Establishments for a period of six months or until the LDR amendment is adopted, whichever occurs first.
If the ZIP is declared, a resolution will be drafted for adoption at the June 7, 2016, City Commission meeting. Also, by declaring a ZIP City planning staff will not issue any further permits for Tattoo Establishments until an LDR text amendment is approved by the City Commission establishing the appropriate time, place and manner restrictions on this use.
City Attorney Review:
Approved as to form and legal sufficiency.
Timing of Request:
The appeal is to be considered at the next regularly scheduled City Commission.