Agenda - Planning Commission - 06/01/2017

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Zoning Bulletin May 25, 2017 I Volume 11 I Issue 10 made with sufficient allegation to try the claim). With regard to Real's claim that the City's zoning ordinances constituted an unlawful prior re- straint on speech, the court explained that, in order for Real to bring the claim, it was not necessary for the City's zoning ordinances to outright prohibit tattooing; rather, "a [licensing] scheme that places unbridled discretion in the hands of a government official or agency constitutes a prior restraint and may result in censorship." Additionally, noted the court, "a prior restraint that fails to place limits on the time within which the decisionmaker must issue [a] license is impermissible," because "a licensing scheme creates the possibility that constitutionally protected speech will be suppressed where there are inadequate procedural safeguards to ensure prompt issuance of the license." Here, Real had alleged that the City's zoning ordinances: (1) vested excessive permitting discretion with the City to issue or deny a CUP; and (2) did not contain adequate procedural safeguards because no time limits were placed on CUP decisions. The Ninth Circuit agreed with Real that the City's zoning ordinances supported those allegations. The court pointed to the fact that "the criteria to issue a CUP includes the open- ended determination that the use 'will not be detrimental to the surround- ing community including public health, safety or general welfare, environmental quality or quality of life.' " The court also noted that the City's zoning ordinances did not include a deadline for City officials to grant or deny a CUP. Real had also argued that the City unconstitutionally restricted a protected means of expression (e.g., tattooing) through unlawful time, place, or manner restrictions on that speech. The court explained that time, place, or manner restrictions are reasonable if they are: "(1) [ ] jus- tified without reference to the content of the regulated speech; (2) [ ] nar- rowly tailored to serve a significant governmental interest; and (3) leave[ ] open ample alternative channels for communication of the information." Further, themeans of meeting the identified government interests must not be "substantially broader than necessary" and must "promote[ ] a substantial government interest that would be achieved less effectively absent the regulation." The district court had not addressed whether the City's zoning ordinances constituted permissible time, place, or manner restrictions on tattooing, and so the Ninth Circuit now remanded the mat- ter for the district court to try. See also: City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 108 S. Ct. 2138, 100 L. Ed. 2d 771, 15 Media L. Rep. (BNA) 1481 (1988). See also: Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 189 L. Ed. 2d 246 (2014). See also: Anderson. v. City of Hermosa Beach, 621 F.3d 1051, 67 A.L.R.6th 681 (9th Cir 2010). © 2017 Thomson Reuters 5