Agenda - Planning Commission - 11/02/2017

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Zoning Bulletin July 25, 2017 I Volume 11 I Issue 14 Case Note: In its decision, the Court of Appeal, Sixth District, explicitly rejected the decision of the Court of Appeal, Fourth District, on the same issue. In deBottari v.-City Council, 171 Cal. App. 3d 1204, 217 Cal. Rptr. 790 (4th Dist. 1985), the Fourth District had held that a similar referendum to the one faced by the Sixth District, "if successful, would enact a clearly invalid zoning ordinance." The Sixth District found this reasoning to be "flawed," noting that "a referendum cannot `enact' an ordinance." Freedom of Speech/Sexually- Oriented Businesses —City adopts amendments to adult establishment ban, setting new definition for "adult establishment" Businesses challenge amendments as violating First Amendment free speech rights Citation: For the People Theatres of N.Y. Inc. v. City of New York, 2017 WL 2427295 (N.Y 2017) NEW YORK (06/06/17)—This case addressed the issue of what is the burden of proof that a municipality must sustain. in order to prevail at the third stage of a three-part burden -shifting framework for determining the First Amendment constitutionality of adult use zoning -when the overall test as to constitutionality of the zoning ordinance is intermediate scrutiny. The case also addressed the issue of whether a city met its burden of demonstrating that the establishments affected by its zoning amendments related to a ban on adult establishments retained a predominant focus on. sexually explicit materials or activities such that the amendments did not violate First Amendment rights, or if there was no need for those amendments such that, on their face, they were a violation of free speech provisions of the U.S. and State Constitutions. The Background/Facts: In 1995, the City of New York (the "City") adopted a zoning ordinance (the "1995 Zoning Ordinance") that barred adult establishments from residential zones and most commercial and manufactur- ing zones, and mandated that, where permitted, adult businesses had to be at least 500 feet from houses of worship, school, day care centers, and other adult businesses. Under the 1995 Zoning Ordinance, an "adult establishment" was defined as a commercial establishment a "substantial portion" of which was "an adult book store, adult eating or drinking establishment, adult theater, or other adult commercial establishment, or any combination thereof." In turn, an "adult book store" (a teiui meant to embrace stores selling or renting sexu- ally explicit video material, as well as books and magazines) was defined as © 2017 Thomson Reuters, 5