Agenda - Planning Commission - 09/03/2009

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I 1 I I i l I i j I 1 I \ . I i Zoning Bulletin July 10, 20091 Volume 31 No. 13 ,/\ ( i On the as-applied challenge, the United States Court of Appeals for the Fourth Circuit held that the First Amendment did not require the ZBA to, each time it sought to enforce the AZO's protected use separa- tion requirements, show that a particular adult establishment generated adverse secondary effects. The court explained that the validity (under the First Amendment) of a content-neutral time, place, and manner re- striction, such as the AZO, depended on "the relation it bears to the overall problem the government seeks to correct, not on the extent to which it furthers the government's interests in an individual case .... The restriction is valid so long as the city could reasonably have determined that its interests overall would be served less effectively without the [re- striction] than with it." More specifically, when a city enacts an adult establishment zoning ordinance under a secondary effects rationale, the ordinance will be found to be valid as long as the city can show that, in enacting the ordinance, it: "relied on evidence that is reasonably believed to be relevant to the problem [of secondary effects] that the city address- es." Here, the court found that the city did have a sufficient evidentiary basis .(i.e., founded in evidence of incidental adverse social effects) for adopting the AZO. The court also held that the AZO's variance provision-on its face- 'j did not violate the First Amendment. It rejected Independence News' ar- gument that the AZO was invalid because it did not require the ZBA to consider factual evidence concerning. the secondary effects of a par- ticular business when deciding whether to grant a variance. The court said that cities should not have to wait for adult establishments to gen- erate adverse secondary effects locally. "before taking action to prevent them from doing so in the future." It would not make sense, reasoned the court, to require a ZBA to consider evidence that a particular adult establishment was not currently generating secondary adverse effects; even if there were no such effects currently, there was no aS$urance that the establishment would not begin to generate secondary effects in the future. "And, ifa variance were granted because an establishment [was] not now generating secondary effects ... there would be no mechanism for addressing those effects if and when they began to occur." Compara- tively, noted the court, a zoning ordinance that set physical constraints could provide such an adequate buffer against secondary effects that might be generated in the future. See also: Ward v. Rock Against Racism, 491 U.S. 781, 109 S. Ct. 2746, 105 L. Ed. ?d 661 (1989). i /' See also: City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S. Ct. 925, 89 L. Ed. 2d 29, 12 Media L. Rep. (BNA) 1721 (1986). @ 2009 Thomson Reuters 9 51