Agenda - Planning Commission - 10/03/1995

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in Renton. Thc Renton la~ tended to concentrate adult facilities by forcing them to locate at least 1,000 feet from any residential zone, family dwelling, church, park, or school. Two issues faced Rentom whether its reliance on Seattle's findings was proper and wh~ther its zoning allowed adequate available land for adult uses~ The Supreme Court sided with the city on the first count, deen!ing its reliance on Seattle's study reasonable under the circurr(s~ tances. Moreover, the Court ruled that because Renton's ordinance left some 520 acres, or five percent of the city's land area, available for adult uses, it did not have the effect of suppressing protect~ed expression. Rejecting the logic of the appeals court that had overtiarned the ordinance, the Court found immaterial the fact that som~ of the 520 acres was already occupied or too expensive, because ~we have never suggested that the First Amendment compels the government to ensure that adult theaters and other kinds ofspeech-~elated businesses, for that matter, will be able to obtain sites at barflain prices." Spacing is not, of coursei the only way to achieve--or avoid-- the effect of providing adequate land where adult uses are . allowed. Its primary value in most cases is the dispersion of adult uses, but some cities prefer t0 isolate such uses in particular areas of the city. Madison, Wisconsin, recently chose that alternative with a new ordinance that simply allows any adult entertainment establishment to establish itself as a permitted use in the M1 limited manufacturing district. Such establishments are defined as "an adult book store or vi~eo store or an adult motion picture theater," and all terms arc dafincd fairly specifically. It should be noted, however, that courts gave not been sympathetic to municipalities that offer industrial districts that pose serious access problems. In the pre-Renton case ofBasiardanes v. City of Galveston, 682 F.2d 1203, 1~09 (5th Cir. 1982), a federal appeals court struck down ar~ ordinance where the district was "largely a patchwork ofswar~ps, warehouses, and railroad tracks. · . lack[lng] access roads and yetail establishments." Even reasonably clear definitions will not avert all legal entanglements. Madison is iO court with one establishment that maintains that it is not coveted by the definition but refuses to divulge its sales or inventorySfigures, according to planner Brad Murphy. The issue is whethir the store can document its claim that selling or renting adult (ti&os is merely an accessory use and not its primary business. Basic Principles The fundamental legal issuesSn regulating adult uses are not nearly so difficult for most phnners and zoning officials as the political ones--dealing with .ihe community pressures to shut down existing or block potential sexually oriented businesses. Community groups often de.tnand more regulation than is likely to pass constitutional muster~when the owners of such businesses inevitably challenge overly restrictive ordinances. Allowing adequate available lind for such uses is just one issue, but it happens to be one that.still forces many communities to defend themselves in court. It is particularly important to distinguish between patently illegal sexual activities and th6se that fall under the protective cover of free speech. For exar~ple, many communities allow massage parlors only as accessory functions to other permitted uses, such as hotels, health cl4bs, and the like, in part because of historical links between such activities and prostitution. Moreover, massage is not freelspeech and enjoys no protected expression, unlike films, books, and other media of expression that may contain explicit sex~l material. Furthermore, it is also clear that pornography or obscenity is not protected speech, although the dividing line there has not always been so clear. The most essential point is that a community must make clear that its motive does not involve any suppression of free speech and does not aim to influence the content of any communication. Detroit and Renton both succeeded in part by documenting a harm to the community that was directly addressed by the specific types of regulations adopted. The constitutional value of such a justification is just as important in today's cases as it was 10 or 20 years ago. Finally, clear and concise definitions are at least as important in regulating adult uses as they are with any other type of zoning. Definitions that can be too easily interpreted to include nude paintings in a legitimate art gallery,.sexually explicit language in books and movies with significant literary content or social commentary, and other free-ranging "loose cannons" will invariably face stifflegal challenges for good reason. In short, once a community has decided to stay within the constitutional boundaries in establishing its zoning, draftsmanship is crucial to success in regulating adult uses. Supermaiority Rules Get Mixed Support Recently, two governments in fast growing metropolitan areas considered requiring supermajority votes for changes to their zoning ordinances. One adopted its use by one vote. The other rejected the idea by the same narrow margin. Metro-Dade County, Florida, commissioners adopted a supermajority rule on April 4, 1995. The law would allow commissioners to call for a two-thirds vote instead of a simple majority to approve zoning changes in their districts. To do that, however, a commissioner must present "substantial competent evidence" that the change would place an "unreasonable burden" on schools, roads, or parks in the district. The law is designed to make it easier to block construction in crowded neighborhoods. In the following weeks, a heated debate arose in the local media between the law's sponsor, Miguel Diaz de la Portilla, and groups that oppose it, such as the Latin Builders Association and the Builders Association of South Florida. The builders claim that the new law is effectively a moratorium on new construction, and they worry about the potential for abuse. Diaz de la Portilla defends the law by indicating that its goal is managed growth, not no growth. He also offered planning department figures that show a 16-year supply (at current rates of purchase) of approved, zoned, but as yet unbuilt housing units in Dade County. He defended his own motives by reviewing his record supporting numerous development projects in the county and his consistent support for responsible, people- sensitive development. In an April 20 Miami Herald article, Diaz de la Portilla wrote, "I have worked diligently to reform the zoning process so that parents, families, students, workers, and ordinary residents have the same access and input on zoning decisions as the powerful special interests." Despite his strong belief in the new law, Diaz de la Portilla tried to placate the opposition by introducing a bill to define more clearly an "unreasonable burden." On June 6, the Metro-Dade commission reconsidered the law at a highly charged meeting attended by many supporters and detractors of thc controversial ordinance. Homeowners told