Sept. 21, 2017 Vol. 16 No. 44
Council rejects adult business ordinance
Written by Jeanne Davant   

End of an era

092117_BridgeWorkers 092117_BridgeCraneGirder

Top, a Wildcat Construction crew works on the old bridge at Colorado Avenue and Columbia Road, which was partially demolished on Wednesday, Sept. 20, for the Westside Avenue Action Plan project.

Above, a crane removes one of the four support girders from the old bridge. Each girder was approximately 60 feet long and weighed approximately 1,000 pounds.

Courtesyof El Paso County/WAAP project

Manitou Springs City Council voted on Tuesday not to approve an ordinance that would have limited the location of adult and sexually oriented businesses to Higginbotham Flats.

After a lengthy discussion, Council instructed city staff to look into other possible locations. Councilors also asked City Attorney Jeff Parker to research changes to the city’s sign ordinance related to these businesses and regulations on architectural and aesthetic details for all businesses outside the Historic District.

“The Supreme Court has held that adult business is a form of free speech and therefore gets First Amendment protection,” Parker said. “You can’t ban them, but you can regulate them for secondary effects on the community. The real concern is that with an outright ban, the possible result is no regulation at all” or a legal challenge.

Council also asked Parker to explore legal arguments that could restrict adult businesses.

Resident John Shada proposed an agreement with El Paso County stating that Manitou Springs is a part of a larger metropolitan area where adequate zones already exist that allow for the free expression of the adult business concept.

“I’ve never heard of it done,” Parker said. “It could be something worth pursuing. It would require some legal research.”

The Planning Commission has been working on an ordinance regulating adult businesses since 2010. The commission referred a draft ordinance to Council for discussion at a July 2016 work session.

At that time, the Planning Department received two inquiries about establishing such businesses, Senior Planner Michelle Anthony said.

In May of this year, the commission recommended approval of the fifth draft of the ordinance, which would have required adult businesses to go through a conditional-use process. Parker informed staff that, based on his review of case law, these businesses must be permitted uses. The Planning Commission approved and referred the sixth draft of the ordinance to Council.

On March 7, Council imposed a six-month moratorium on establishing sexually oriented businesses and applications for adult business licenses to give the Planning Commission and Parker more time to craft regulations.

Council extended the moratorium for three months on Aug. 17; it expires Nov. 10.

Parker said the city must provide at least one location for sexually oriented businesses but could select a location that would minimize secondary effects such as crime, prostitution, traffic and effects on property values.

The proposed ordinance would limit the location of businesses including adult arcades, theaters, stores and cabarets to areas that do not abut Manitou, Park, Cañon or Ruxton avenues, El Paso Boulevard or Beckers Lane and are a minimum of 500 feet away from a church, library, childcare facility, school, marijuana dispensary or store, liquor store or any other adult business.

Those provisions effectively leave Higginbotham Flats, which has been the site of a community garden and is the location of storage units, city-owned property and two undeveloped parcels, as the only possible site.

Councilors did not like that idea.

“That’s our western gateway,” Councilor Becky Elder said. “That’s totally appalling. No way is Higginbotham Flats going to be a good place for that.”

Councilor Randy Hodges said he was concerned about signage that would be visible to motorists on Highway 24.

“I don’t want to project that image to all those people who drive up the pass,” Hodges said.

“This is a game changer in terms of our brand,” said Councilor Bob Todd, who proposed that the city look at other locations.

Todd provided a map that showed several other possibilities, including areas adjacent to Garden of the Gods RV Resort and Garden of the Gods Trading Post, strips of land behind the El Colorado Lodge and Rodeway Inn, and a parcel at Black Canyon Gully and the Highway 24 overpass.

Elder suggested that the location be “right across from the police station. How about behind the pot shops? We need to be more flexible.”

Hodges said he’d “been thinking about the 7-Eleven — it’s back from the street, and if we control the signage, it wouldn’t be too obvious. I would rather have it somewhat hidden in our midst than at the gateway for all to see.”

“I think we do need some more choices,” Councilor Coreen Toll said. “We did institute a moratorium that is still in effect, so we have more time.”

Besides the location provisions, the proposed ordinance contains extensive regulatory provisions addressing the application process, background investigations, criteria for issuance or denial of an adult business operator license and annual renewal, grounds for revocation, hours of operation, age restrictions and conduct such as prostitution and indecent exposure.

Mayor Nicole Nicoletta proposed that Council pass the ordinance on first reading and direct the city attorney and staff to explore further options.

“Tons of what’s in there is fine,” Nicoletta said.

“I’m not a fan of having first reading of an ordinance and having second reading come back with major changes,” Councilor Jay Rohrer said.

Council voted 5-2 in favor of Rohrer’s motion to reject the ordinance and have legal counsel and staff conduct more research. Todd and Elder voted no.