Agenda - Planning Commission - 01/08/2015

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November 25, 2014 1 Volume 8 1 Issue 22 Zoning Bulletin Showtime received its requested adult -entertainment license, subject to the applicable governing bylaws and regulations. Displeased with the limitations placed on its adult -entertainment license, Showtime filed suit. It claimed that the zoning bylaws restricting its operating hours and the size and height of its building were unconstitutional restrictions of expressive activity protected by the First Amendment to the United States Constitution (U.S. Const. amend. I.). "Pursuant to the First Amendment, the government cannot inhibit, suppress, or impose differential content -based burdens on speech or other `expressive conduct,' including those expressive activities associated with adult entertainment." Showtime and the Town filed cross-motions for summary judgment. Each party asked the court to find there were no material issues of fact in dispute and to decide the matter in their favor on the law alone. The district court granted summary judgment in favor of the Town on all claims, finding the challenged zoning bylaws were constitutional. Showtime appealed. DECISION: Judgment of district court reversed, and matter remanded. The United States Court of Appeals, First Circuit, held that the Town zon- ing bylaws regulating size, height, and hours of operation of adult - entertainment were unconstitutional in violation of the First Amendment to the United States Constitution. In so holding, the court first determined that Showtime's challenge was a facial challenge to the bylaw; it was not an as -applied challenge since the relief sought was to be the invalidation of the zoning bylaws, not merely a change in their application. Finding that the zoning bylaws were content - neutral in that they attempted to combat the "undesirable secondary effects" of adult -entertainment businesses, the court applied an intermediate level of scrutiny (as opposed to strict scrutiny). The court explained that the intermedi- ate level of scrutiny allows regulations justified by neutral purposes to survive as long as they support a significant government interest, do not burden substantially more speech than necessary, and leave available alternative chan- nels of communication. Here, the court found that the stated purposes of the zoning bylaws regulat- ing the size, height, and hours of operation of adult -entertainment busi- nesses—namely, to maintain the town's rural aesthetics and to avoid traffic congestion—were "patently under[ -]inclusive." Thus the court found the zon- ing bylaws' purposes were insufficient to support the Town's claim that it regulated adult -entertainment businesses only out of a substantial interest in curbing secondary effects. More specifically, the court found that the Town failed to clarify what par- ticular negative effect the size and height of an adult -entertainment business would have on rural aesthetics that was not shared by all other large, com- mercial structures. Since, under the zoning bylaws, size did not matter to all enterprises, but mattered only in the context of the type of business that a building housed, the court found that the Town differentiated between speak- ers for reasons "unrelated to the legitimate interests that prompted the 6 © 2014 Thomson Reuters •