Agenda - Planning Commission - 07/18/2013 - Special

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June 10, 2013 I Volume 7 I Issue 11 Zoning Bulletin District in the City of Fall River (the "City") (the "Site"). Under the City's zoning ordinance, adult entertainment providers had to obtain a "special k permit." The special pennit would only be granted to applications that met a variety of zoning conditions. Lund applied to the City for a special pennit. The City denied his ap- plication because: (1) the proposal would have violated City Zoning Ordinance § 86-88, which placed requirements on parking spaces and landscaping; and (2) the proposed site was within an Industrial District and § 86-201 ordinance forbid adult entertainment on a site within an Industrial District. Lund appealed to the Zoning Board of Appeals (the "ZBA") for a vari- ance from the ordinances. The ZBA denied Lund's variance request. Lund appealed to court. He alleged that the City's ordinances—§§ 86-88 and 86-201—violated the First Amendment of the United States Constitution (i.e., freedom of speech) because they denied him "a reason- able opportunity and accommodation to open, and operate within the City, an adult entertainment club." The district court found that 28.53 (0.24%) of the City's developable acres, on eight separate sites, were available as adult entertainment venues. The court held that this provided Lund with reasonable room to exercise his protected expressive right. As such, the court concluded that the ordi- nances did not violate the First Amendment. The court entered judgment for the City. Lund appealed. DECISION: Affirmed. The United States Court of Appeals, First Circuit, held that the City or- dinances did not violate the First Amendment. The court explained that, as time, place and manner regulations, the or- dinances would survive the First Amendment challenge if they were found to be: (1) content neutral; (2) advanced a substantial governmental inter- est; and (3) left reasonable means of commercial adult activity as an alternative to their restrictions. Lund had conceded that the ordinances were content neutral and that the City's interest was substantial. So the court looked at whether the land available in the City for adult entertainment business use (i.e., that land which complied with the zoning ordinances) allowed for "reasonable alternative avenues of communication." More specifically, the court looked to "multiple factors," including: "the percentage of acreage within the zone [for adult business use] compared [with] the acreage available to commercial enterprises" and "[t]he number of sites available to adult entertainment businesses." Lund had contended that the district court had erred in finding there was 28.53 acres on eight sites "available" for adult entertainment. He argued that the sites that had long-term leases or required costly redevelopment should have been excluded from that tally of "available" sites, thus greatly 8 © 2013 Thomson Reuters