Agenda - Planning Commission - 06/01/2017

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May 25, 2017 I Volume 11 I Issue 10 Zoning Bulletin facial challenge when he `argue[s] that an ordinance . . . impermissibly restricts a protected activity." Specifically addressing the fact that Real had brought the challenge to the zoning ordinances without first applying for a CUP, the court explained: "when a licensing statute allegedly vests unbridled discretion in a government official over whether to permit or deny expressive activity, one who is subject to the law may challenge it facially without the necessity of first applying for, and being denied, a license." The court said this was because, without standards to restrict the City's discretion, "the difficulties of proof and the case -by -case nature of 'as applied' challenges" would otherwise render the City's action "in large measure effectively unreviewable." Here, the court noted that tattooing —including the tattoo, the process of tattooing, and even the business of tattooing —was a "purely expres- sive activity fully protected by the First Amendment." The court found that Real had "plainly challenged" the City's zoning ordinances on the grounds that they impermissibly restricted an activity protected by the First Amendment (e.g., tattooing) and vested excessive permitting discre- tion in the City (i.e., through the CUP permit approval process). Thus, the court concluded that Real had standing to bring a facial challenge to the zoning ordinances. "He was not required to first apply for, and then be denied, a CUP to bring [his] claim under a permitting system that al- legedly gives City officials unfettered discretion over protected activity." The court went on to note that facial challenges to zoning ordinances "may be paired with as -applied challenges." The court held that Real also had standing to bring an "as -applied" challenge to the City's zoning ordinances. The court explained that to establish such standing to bring a claim in federal court (i.e., "Article 111 standing") to challenge a law as applied to him, Real had to allege: (1) "a distinct and palpable injury -in - fact" that is (2) "fairly traceable" to the challenged zoning ordinance and (3) would "likely be redressed by a favorable decision." The Ninth Circuit concluded that "Real was not required to apply for a CUP to operate anywhere in Long Beach to suffer an injury." Rather, said the court, Real satisfied the injury -in -fact requirement because: "(1) he alleged an intention to open a tattoo shop without a CUP"; (2) "tattooing is purely expressive activity fully protected by the First Amendment"; and (3) "the zoning ordinances proscribe[d] his intended conduct." The court also found that Real "sufficiently alleged a credible threat of prose- cution," as he had argued that "the threat of [zoning] enforcement against [him] [was] substantial," because the City "ha[d] vigorously defended its zoning ordinances in this case, and [he] ha[d] been explicitly told that he [would] be subject to zoning enforcement processes if he open[ed] except as permitted by the zoning scheme." Having found that Real had standing to bring his claims, the Ninth Circuit remanded the matter to the district court to try the claims. In do- ing so, the Ninth Circuit found that Real's claims were "cognizable" (i.e., 4 © 2017 Thomson Reuters