Agenda - Planning Commission - 11/12/2015

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September 25, 2015 1 Volume 9 1 Issue 18 Zoning Bulletin established only if the County issued a conditional -use permit to the would-be adult entertainment operator. The zoning committee respon- sible for this process would issue such a permit only if it found that the proposed use complied with several requirements, including that it would: "not be a detriment to the public welfare;" and "in no way [would] contribute to the deterioration of the surrounding neighbor- hood"; or "have a harmful influence on children residing in or frequent- ing the area." The application also had to demonstrate (among other things) that no intoxicating beverages would be sold within the AEO district, and that any "adult use" within the district would be located at least 1,500 feet from any other adult use and at least 2,000 feet from land zoned residential or institutional (i.e., a setback provision). In its operation of Stars, Green Valley never attempted to satisfy the requirements of the County Zoning Ordinance 17.13. It never sought a permit to establish an AEO district encompassing its location. Stars openly featured nude dancing and served alcoholic beverages. Rather, in 2006, Green Valley sued the County for declaratory and injunctive relief. Green Valley alleged that Ordinance 17.13 was an unconstitu- tional restriction on expression in violation of the First Amendment to the United States Constitution. While that suit was pending, the County amended the ordinance, and Green Valley agreed to a dismissal without prejudice. In 2008, Green Valley again sued, this time challenging the constitutionality of a 2007 amendment to the ordinance. The district court permanently enjoined the County from enforcing the provisions of the 2007 ordinance relat- ing to conditional use permits, but it found that the remainder of the ordinance once the unconstitutional parts were severed could operate effectively on a standalone basis. Green Valley appealed, but while the appeal was pending, the County again changed the ordinance. Believ- ing that this mooted the appeal, Green Valley voluntarily dismissed it on June 1, 2012. Finally, in 2013, Green Valley again sued the County. This time it argued that the 2006 version of the ordinance violated the First Amendment, and that since Stars operated before that invalid ordinance was modified, its use was a valid nonconforming use that was legally grandfathered despite later amendments to the ordinance. The district court agreed that parts of the 2006 ordinance were un- constitutional prior restraints (i.e., prohibiting speech or other expres- sion before it could take place). However, the court also held that the unconstitutional provisions of the 2006 ordinance could be severed (under a severability clause in the County's general zoning law), leav- ing a constitutionally permissible law that, from the time before Stars opened, had regulated alcohol sales at adult establishments and established setback limitations on the location of such. businesses. Since Stars has never complied with those requirements, its operation (the court reasoned) had never been lawful. 6 © 2015 Thomson Reuters