Source: Sherman Publications

Adults only
Village planner suggests expanding list of ‘adult uses’ to limit where they go

by CJ Carnacchio

February 12, 2014

In an effort to prevent “family unfriendly” businesses from setting up shop in downtown Oxford, the village planner has suggested expanding the zoning ordinance’s list of “adult uses” to encompass things such as tobacco stores and pawn shops.

Adult uses are not allowed downtown.

“This is a discussion that I think we should have,” said Chris Khorey, a senior planner at the Northville-based McKenna Associates.

Last week, it was the consensus of the village planning commission to have Khorey present suggestions at the 7 p.m. Tuesday, March 4 meeting.

“I’ll come up with a list of uses and you can decide what you want in, what you want out and then, we’ll go from there,” Khorey told commissioners.

Khorey explained this issue arose because there’s been some concern and questions regarding a “smoke shop” that opened its doors last year at 17 S. Washington St.

Officials are concerned that B.D.T. Smoke Shops is a head shop – a shop specializing in articles of interest to drug users. Some believe it’s not good for the community’s image nor does it represent the type of people they wish to attract to the downtown area.

“I think it does send a bad message to our community (by) being in our downtown area,” said village Police Chief Mike Neymanowski. “This particular company has four other stores in Michigan, so it shows you that our culture’s more accepting, I guess. But I worry about the young people in our community – what kind of message are we sending . . . By allowing this in our downtown area, we’re kind of promoting drug use.”

B.D.T. Smoke Shops offer a wide selection of glass pipes and rolling papers, items generally associated with smoking marijuana, but which can also be used for tobacco consumption.

B.D.T’s business card states that a 15 percent discount is available to all medical marijuana (MM) patients and notes they “must have (a) state MM ID card.”

The B.D.T website states that it was voted the Number One “Headshop and Smoke Shop” nine out of the last 12 years by readers of the Metro Times.

B.D.T., which has other locations in Hazel Park, Utica, Roseville and Ypsilanti, is mentioned on a number of websites that provide lists of head shops and marijuana-related businesses including headshopfinder.com, potlocator.com and weedfinder.com.

“I know this is America (and) you can open a legitimate shop,” Neymanowski said. “But they do sell items in there that promote illegal drug use.”

Randy Hauck, operations manager for the B.D.T. Oxford location, declined to comment on the record for this story.

Neymanowski said he’s talked with some downtown business owners and they’re not happy about the shop, either.

“They’re all concerned,” he said. “They said it’s the wrong thing for our downtown, but (they) don’t really want to come forward.”

Khorey explained the village could not prohibit B.D.T. from opening “because there’s nothing in the zoning ordinance that says they’re not allowed.”

Although Michigan law prohibits the sale of drug paraphernalia, Oakland County Sheriff’s Lt. Brent Miles, commander of the Narcotics Enforcement Team (NET), said shops like B.D.T. operate by claiming their products are for the purpose of using legal substances, not illegal ones.

“The way they get around the law is it’s being sold for the use of tobacco,” he explained. “You know and I know that’s not what (these items are) intended for, but they’re (selling drug paraphernalia) under the guise or the premise of (it being for) ingesting tobacco or using tobacco. That’s basically how they get around this.”

That’s why the sheriff’s office doesn’t investigate or raid businesses that sell drug paraphernalia, according to Miles.

“They simply say, ‘Oh, this is for the ingestion of tobacco,’” the lieutenant said. “Tobacco is legal to possess as long as you’re (age) 18 or older. That complicates things as far as prosecution.”

As a way to prevent similar shops from opening downtown, Khorey, in a Jan. 30 memo to the planning commission, suggested the village expand its list of “adult uses” to include things such as “pawn shops and businesses dealing with tobacco, marijuana, or smoking paraphernalia.”

Right now, adult uses are defined as “any commercial or recreational establishment which at all times excludes minors by virtue of age, including adult bookstores, adult motion picture theatres, adult mini-motion picture theatres, adult drive-in theatres, adult massage parlors, adult modelling studios, and eating and drinking places with sexually-oriented entertainment.”

According to Khorey, adult uses are not allowed in the downtown, specifically the Core Central Business (C-1) zoning district, under any circumstances.

He said adult uses are only allowed in the General Business (C-2) district with special use approval. They’re not permitted in any other zoning district.

Basically, B.D.T. was able to open downtown because this type of business is not currently defined as an adult use under the village’s zoning ordinance.

But even if B.D.T.’s type of business was added to the list of adult uses, it would not be required to close its downtown location because it’s considered grandfathered-in, Khorey said.

In the C-2 district, adult uses face a number of restrictions such as they cannot be located within 1,000 feet of another adult use, school, library, park, playground, movie theater, skating rink, pool hall, coin-operated amusement center, licensed group day care center or place of worship.

For instance, because there’s already a tobacco shop located in the Oxford Marketplace shopping center, which is zoned C-2, should the village decide to define that type of business as an adult use, another tobacco shop could not open in the strip mall because there’s nowhere it could meet the 1,000-foot requirement, according to Khorey.

Adult uses also cannot display on their signage or windows sexually explicit material, nor can they be a home occupation or part of a live-work unit.

Khorey noted that just because adult uses are permitted in the C-2 district with special use approval does not mean the planning commission is required to okay them.

“As a practical matter, we probably don’t have to approve things once they’re on this list (of adult uses), but there has to be a way to do it,” he told commissioners.

Basically, there must be a process in place that allows applicants to state their case and the planning commission to then approve or deny requests.

“It is my understanding – and I’m not a lawyer – but it’s my understanding we are required to have a process,” Khorey told this reporter. “(Applicants are) allowed to have a hearing.”

“The planning commission is never obligated to approve a special use,” Khorey noted. “There are criteria in the zoning ordinance for when a special use should be approved and if something does meet those criteria, then it’s good policy to approve it.”

Khorey indicated the zoning ordinance cannot be used to completely prohibit a use.

“As a village, we are not allowed to explicitly prohibit anything entirely,” he said. “We have to allow any use of land that someone comes up with somewhere.”

But that doesn’t mean the village has to make it easy.

“We can’t say you cannot open a strip club in Oxford,” Khorey told commissioners. “We can say you can operate one with all of these different parameters, so have fun finding a space for it. But we can’t say you can’t do it.”