Agenda - Planning Commission - 01/09/2014

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October 25, 2013 I Volume 7 I Issue 20 Zoning Bulletin to impose different zoning requirements on adult theaters than on mainstream theaters." Also, "[e]ven though such zoning ordinances categorize theaters based on the content they exhibit, courts may analyze the ordinances as content -neutral time, place, and manner restrictions." This is based on the concept that the "zoning restrictions target not the content of the films shown, but rather the `secondary ef- fects' caused by the accumulation of adult amusement establishments in a city." Negative "secondary effects" that zoning restriction seek to avoid, noted the court, include things such as: "an undesirable quantity and quality of transients"; adversely affected property values; an increase in crime, especially prostitution; and adverse effects on neighborhoods. Since such zoning ordinances are treated by the courts as time, place, and manner restrictions, the court explained that they are valid if: (1) they are content neutral; (2) "they are narrowly tailored to serve a sig- nificant governmental interest"; and (3) "they leave open ample alterna- tive channels for communication of the information." Here, the court noted that the City's ordinance was similar to others that have been upheld as constitutional. Nevertheless, here, the Guild was not challenging the constitutionality of the ordinance generally, but only as it applied to the Guild. On that point, the court found that the Guild was not an adult theater "in function or appearance." Rather, the court found that the Guild was an ordinary -looking art -house theater. Nothing about the Guild appeared "to be seedy, unsavory, or likely to drive down property values." It was undisputed that Pornotopia did not, in fact, result in any negative secondary effects in the Nob Hill neighborhood. While the City ordinance did not specify exactly how many porno- graphic films a theater must show to qualify it as an "adult amusement establishment," the court found it could "say with confidence, however, that :the ordinance [did] not reach the type of very occasional showing at issue in this case." Further, noted the court, " [z]oning rules gener- ally only apply to the regular use of a building,' not occasional devia- tions from those uses." "One weekend of erotic films per year does not an adult theater make," said the court. Having found that the Guild was not an "adult amusement establish- ment" under the ordinance, the court concluded that the Guild did not commit a zoning violation when it screened one pornographic film in an area that was not zoned for adult entertainment. See also: Tollis, Inc. v. San Bernardino County, 827 F.2d 1329 (9th Cir. 1987), modification on other grounds recognized by Alameda Books, Inc. v. City of Los Angeles, 222 F.3d 719 (9th Cir. 2000), re- versed on other grounds by Alameda Books, 535 U.S. at 429 (plurality opinion). 4 © 2013 Thomson Reuters