Agenda - Planning Commission - 01/07/1997

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Z.B. December 1996 -- Page 3 A few weeks later, the building inspector let the company begin work again. The company finished work soon thereafter. About two weeks after the company finished its work, the council adopted the new zoning restrictions: Under the new provisions, adult entertainment businesses could operate in the city's industrial zone, but only with a special permit. To get a special permit, a business had to be a certain distance from other types of uses and from public and private ways, meet specified landscap- ing requirements, fall between specific minimum and maximum lot sizes, not be in a multiuse building, and not have flashing, animated or moving advertis- ing signs. The council didn't state its purpose in enacting the new provisions, and did not make any findings about the effects of sexually oriented businesses on the city. Months later, the city issued the company an occupancy certificate that stated "no adult entertainment." The building inspector then denied the company's request for a sign permit. The inspector's notice stated the company's use was not allowed at the property, and that it didn't comply with the new ordinance's setback and multiuse building provisions. The company appealed to the. city's Zoning Board of Appeals, and the board affirmed the decision. The company asked a court for an order stopping the city from enforcing the ordinance against it. The company said the city's reliance on the ordinance violated its free speech rights under the state and federal constitutions. The city pointed to the secondary effects sexually oriented businesses could have on the community. The court ordered the city not to enforce the ordinance's adult entertain- ment provisions against the company. Specifically, the city could not rely on the ordinance to try to prevent the company from operating its store or from selling nonobscene adult ~,ideos and other goods. In making its decision, the court assumed (but did not decide) that the ordinance was a content-neutral restriction on the time, place and manner of speech. The city asked the state's highest court to review the case, which the court did. DECISION: Affirmed. The lower court properly ordered the city not to enforce the ordinance against the company. Even assuming that the ordinance was content neutral, the city did not prove the ordinance was "designed to serve a substantial governmental interest." The city never stated its purpose in enacting the ordinance, and made no arguments about the effects of adult entertainment until the company sued to stop it from enforcing the ordinance. Any restriction of the company's con- stitutional free speech rights would harm it more than the store's operation would harm the city. (After all, the city already had three other stores with adult videos.) If the company lost at trial, the city would be able to stop the use. Renton v. Playtime Theatres Inc., 475 U.S. 41, 106 S. Ct. 925, 89 L.Ed. 2d 29 (1-986). Schad v. Mount E£hraim, 452 U.S. 61, 1_01 S. Ct. 21-76, 68 L.Ed.2d 671 (1_98]).