Agenda - Planning Commission - 09/03/1996

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Page 4'!J J, August 1996 Z.B. Ho!mberg claimed the ordinance was unconstitutional as applied to his new business. He said its definition of "adult uses . principal" was an overbroad restriction of expression because it was not limited to those businesses that were shown to cause adverse secondary effects. According to him, no studies had sho~vn businesses such as his with off-premises consumption and a major- ity of non-adult material caused negative secondary affects. He also said the ordinance was vague because it didn't specify a time period during which the 20 percent figure should be calculated. The ~city argued the ordinance was a content-neutral time, place and man- ner regulation and that its constitutionality had already been decided, so Holmberg's argument was barred. The court granted the city judgment with regard to whether the ordinance was content-neutral. However, it found questions existed about whether the studies on which the city relied addressed the effects of adult bookstores with no on-premises consumption of material. There were also questions about whether the ordinance affected only the types of businesses shown to produce negative effects. The court allowed the city to produce more evidence regard- ing thoseissues. After the city submitted additional materials, the court found the ordinance constitutional and granted the city's request. Holmberg appealed. DECISION: Affirmed, in favor of the city. The Tower court properly found for the city. The ordinance was not over- broad or Vague. The city had enough general information to enact a valid ordinance. The city need not prove Holmberg's business would likely have the exact same adverse effects as those businesses already studied. The city reasonably believed Holmberg's business would negatively impact the neighborhood. The lack of a definite time period in which to calculate the 20 percent figure did not make the ordinance unconstitutionally vague. Holm. berg v. City of Ramsey~ 800 F. Su_pp. 815 (1992). Dorso Trailer Sales v. American t~ody & Trailer, 482 N. W. 2d 77J (1992). Wetlands -- Board rejects application after environmental department approves it Frank v. Scheyer, 642 N.Y.S. 2d 956 (New York) 1996 Sometime before 1989, Frank bought a 19,983-square-foot lot in the town of Islip, N.Y. Because the property was in a wetland district, she sought per- mission from the New York State Department of Environmental Conversation (department) to build a single-family home on it. Meanwhile, in 1989, the town enacted its own wetland overlay district. Under the zoning ordinance, a property had to be at least one acre to have a home on it. Frank's property, which had been of legal size when she bought it, was now to° small.