Agenda - Planning Commission - 03/03/2016

Home

January 25, 2016 I Volume 10 I Issue 2 Zoning Bulletin ing requirements and regulations for sexually oriented businesses within the City. Among the licensing requirements was a requirement that sexu- ally oriented businesses be located "at least 750 feet from every residence." BBL's property did not meet that requirement. The City's Common Council also amended its zoning ordinance to: remove sexually oriented businesses as a permitted use in commercial districts and move them to moderate-intensity industrial districts; and bring the zoning code into confoimity with the new licensing and regulatory ordinance for sexually oriented businesses—including a 750-foot buffer zone from any residence. In March 2013, BBL sued the City in federal court alleging, among oth- ers, that the City's new zoning and licensing requirements related to sexu- ally oriented businesses violated their right to expression under the First Amendment. BBL filed a preliminary injunction motion. The district court judge denied the motion. BBL appealed. DECISION: Affirmed. The United States Court of Appeals, Seventh Circuit, held that the district court judge properly declined to issue a preliminary injunction to BBL since BBL was unlikely to succeed on their First Amendment claim. In so holding, the court explained that nude dancing "is expressive conduct within the outer perimeters of the First Amendment." The court further explained that "[r]egulations on sexually oriented businesses are nearly always reviewed under intermediate scrutiny as content-neutral regulations;" "[a]s long as 'one purpose of the ordinance is to combat harm- ful secondary effects,' the ordinance is regarded as content neutral and thus intermediate scrutiny applies." Under inteiuiediate scrutiny, the court said that where challenged ordi- nances restrict where sexually oriented businesses may be located, the test that applies as to the validity of the ordinance is one that requires the government to show that the challenged ordinance: "(1) is designed to serve a substantial governmental interest and is narrowly tailored to serve that interest; and (2) allows for reasonable alternative avenues of communication." Thus, explained the court, under that test, when an ordinance is challenged: First, the regulating authority must establish through evidence that the challenged regulation serves a substantial governmental interest and is narrowly tailored toward that end. Once the government makes that preliminary showing, the challenger may cast doubt on a municipality's rationale "either by demonstrating that the municipali- ty's evidence does not support its rationale or by furnishing evidence that disputes the municipality's factual findings." If the challenger is successful, it is up to the municipality to "supplement the record with evidence renew- ing support for a theory that justifies its ordinance." If the municipality suc- ceeds, the final step asks whether the ordinance "allows for reasonable alternative avenues of communication." 6 © 2016 Thomson Reuters