Agenda - Planning Commission - 02/05/2004

Home

z.m. November 25, 2003 m Page 5 BAS Enterprize sued,_=~,'=ulno, = the emergency ordinance was an unconstitu- tional ~estriction on its Free Speech rights. DECISION: Judgment in favor of the city. Th~ city satisfactorily established the ordinance was designed and adopted to further a substantial government interest. The city council reasonably relied on its employees to perform the neces- sary r{search and draft the ordinance. These employees produced affidavits demonstrating they discussed relevant case law and relied on studies of the secondary effects of adult businesses prepared by other cities. Th~ record demonstrated that throughout the process the rationale for adopt- ing th~ ordinance was to limit the negative secondary effects associated with adult entertainment establishments, especially the impact on juveniles. This was olio consistent with the language contained not only in the preamble but also in' the body of the ordinance. B~ed on the concerns of the ordinance drafters and the city, it was clear the ordinance was content-neutral and designed only to address negative sec- ondarY effects. Consequently, it was not an illegal content-based restriction on protecied speech. CitatiOn: BAS Enterprize [nc. v. The City of Maumee, U.S. District Court for the Northern District of Ohio, Western Division, No. 3.'02 CV 7583 (2003). see algo: Goldberg Co. v. Council of the City of Richmond Heights, 690 N.E. 2d see also: Encore ~deos bw. v. City of San Antonio, 330 F. 3d 288 (2003). Variance ~ Neighbors complain of planned seven-story dormitory tteighi variance necessary to include ornamental roof LOUISIANA (09/17/03) -- Xavier University was located in an area zoned as a lighi industrial district. Because of a lack of student housing on campus, Xavier began building a seven-story dormitory. The dormitory complied with the requirements for a light industrial area except with respect to its height. Xavie/sought a I0-foot variance to accommodate a geen gabled roof that was identified with the buildings on campus as a symbol of the un/versity. Xavier filed an application with the zoning: board for a variance. At the hear/ng, Xavier representatives testified the planned roof would in fact use less than hhtf of the requested variance. The board approved the variance. Soon thereafter, neighboring property owners sued, arguing the new dorm woul~ encroach on their sunlight. The court ruled in favor of the board. Tlie neighboring property owners appealed. DEC'ION: Affirmed. The height variance was properly granted. Tlle gabled roof would not have a substantial impact on the sunlight sup- plied io the neighbors' property. The impact on the sunlight supply would be 129