Agenda - Planning Commission - 11/12/2015

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Zoning Bulletin September 25, 2015 I Volume 9 1 Issue 18 Green Valley appealed. DECISION: Judgment of district court reversed, and matter remanded. The United States Court of Appeals, Seventh Circuit, first agreed with the district court that the "permissive use scheme laid out in the County's ordinance" was unconstitutional. The court found that the 2006 version of County Zoning Ordinance 17.13 "unquestionably" imposed an unconstitutional prior restraint that violated the First Amendment to the United States Constitution. The court found that the ordinance required applicants such as Green Valley to apply to the County for permission to undertake their selected mode of expres- sion—nude dancing. The County's committee would then decide whether applicants received permission to make their proposed com- munication based on the content of that communication. That required the committee to review such "amorphous points" as whether the proposed use was "a detriment to the public welfare," "[would] in no way contribute to the deterioration of the surrounding neighborhood," or "[would] not have a harmful influence on children" in the area. The ordinance, found the court, left it to the County's discretion to decide yes or no on each of those criteria. Finally, the County had to af- firmatively grant permission for the use to occur. That, concluded the court, was a "quintessential prior restraint." The court explained that prior restraints are generally unconstitu- tional, in violation of the First Amendment, unless fitting one of the narrow exceptions: (1) where there is a presence of "a powerful over- riding interest" such as national security, obscenity, or incitement to violence and overthrow of the government; (2) where the prior restraint "takes place under procedural safeguards designed to obviate the dangers of a censorship system" (e.g., limitation on the prior restraint for during judicial review); and/or (3) where the restraints imposed are valid time, place, and manner restrictions. The court here found that the first exception had "nothing to do with [the instant] case," and that the County's ordinance included none of the safeguards from the second exception. The court also found that the ordinance did not fit an exception for valid time, place, and manner restrictions, given the fact that a proposed adult use could not occur at all under the ordinance without permission from the County to establish an AEO district for it. In short, the court concluded that the 2006 ordinance created an uncon- stitutional prior restraint and could not be enforced. After confirming that portions of the ordinance were unconstitu- tional, the court next held that the district court erred in severing the unconstitutional portions and slightly modifying the remaining language in order to have a remaining ordinance that made sense. The Seventh Circuit found it was not clear as a matter of Wisconsin law © 2015 Thomson Reuters 7