Agenda - Planning Commission - 09/03/2009

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july 10, 20091 Volume 31 No. 13 Zoning Bulletin The 4th U.S. Circuit has jurisdiction over Maryland, North Carolina, (/) South Carolina, Virginia, and West Virginia. 4th U.S. CIRCUIT/NORTH CAROLINA (06/03/09)-In January 1994, the city adopted an Adult Zoning Ordinance (the "AZO"). The AZOwas enacted to protect certain \'sensitive uses" such as schools, churches, child care centers, parks and playgrounds (the "protected uses"). It required that adult establishments be located at certain dis- tances from those protected uses (the "protected use separation require- ments"). A provision in the AZO gave preexisting adult establishments not in compliance with the protected use separation requirements eight yeaJ:."s to close or relocate to a conforming location. Another provi- sion in the AZO allowed the city's Zoning Board of Adjustment (the "ZBA") to grant a variance from the protected use separation require- ments. The ZBA could grant a variance to an adult establishment if it found that geographic and topographic features likely provided the pro- tected uses with "an adequate measure of protection ... from any sec- ondary effects of the adult establishment." Independence News, Incorporated and Polo South, Incorporated (collectively, "Independence News") operated adult establishments in the city. One week before 'the eight-year amortization deadline of the \ ") AZO, Independence News brought.a legal action seeking to avoid en- forcementof the amortization provision against their establishments. They claimed that the AZO was "unconstitutional [in violation of the First Amendment of the U.S. Constitution] as applied against [them.)" They argued that because data gathered after the passage of the AZO showed that their establishments did not generate adverse secondary ef- fects, the original justification for passing the AZO was unsupported, and the AZO was invalid as applied to them. They also argued that the AZO's variance provision-on its face-violated the First Amendment because it did not require the ZBA to consider the absence of "second- ary effects" when deciding whether to grant a variance. They main- tained that, in enforcing the AZO, the ZBA had to look at whether a particular establishment generated the undesired "secondary effects." They asserted that if the ZBA found it did not, then the AZO should not be enforced against that establishment. ' The district court: dismissed Independence News' as-applied chal- lenge to the secondary effects of the AZO; and ruled in the city's fa- vor on Independence News' facial challenge to the AZO's variance prOVlSlOn. Independence News appealed. ) DECISION: Affirmed. 8 @ 2009 Thomson Reuters 50