Agenda - Planning Commission - 01/03/2008

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Zoning Bulletin dential district, a public park, and various other locations. The word "per- son" was defined as encompassing "an individual, proprietorship, partner- ship, corporation, association, or other legal entity." The city sued Smartt in court, asking for an injunction preventing the operation of his business. The city claimed that Smartt's establishment violated the 1,000-foot restriction. After a hearing, the trial court grant- ed the relief the city requested. Smartt appealed, and the injunction was suspended while the appeal was being considered. Smartt argued that the ordinance in question was not applicable be- cause his business was "grandfathered" as a nonconforming use and its operation did not fall within the definitions in theoQrdinance. In addi- tion, he argued that the ordinance was unconstitutional and that the in- junction was invalid because the city had an alternate remedy at law. DECISION: Affirmed. The appeals court dismissed Smartt's argument for grandfather sta- tus. No authority was cited in support of the argument that, just be- cause the business was in operation before the area was annexed and subject to the zoning ordinance, it could continue to operate freely. Fur- thermore, under "reasonable" conditions, zoning ordinances could be applied to end previously existing nonconforming uses. Smartt's argument that it did not fit the definition of the ordinance was also without merit. Importantly, Smartt argued that it did not fit the definition of an "est~blishment" not allowed under the ordinance, but the term "establishment" did not even appear in any of the provisions. Reading the plain language of the ordinance, it regulated "persons," not establishments, and Smartt fell within the definition of a "person." With regard to Smartt's constitutional claims, he argued that the ordi- nance violated the First Amendment because it amounted to a regulation a protected speech or activity. But, it w~s well settled in cases involving ~exually oriented businesses that a municipality had a substantial interest in preserving the quality of urban life for its residents and that regulating the location of sexually oriented businesses served that interest. Also, the manner in which the ordinance regulated the activity was acceptable because it did not ban the activity in its entirety; rather, it simply regulated the location at which it could be conducted. Similar restrictions limiting the location of sexually oriented businesses to dis- tances 1,000 feet from churches and areas zoned residential had been found constitutionally sound. Because Smartt's arguments were found to be without merit, a per- manent injunction was issued. 12 L-334800 62