Agenda - Planning Commission - 11/07/2013

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Zoning Bulletin October 10, 2013 1 Volume 7 i Issue 19 the matter on the law alone, the district court granted summary judg- ment in favor of Florence. It concluded that Florence's zoning scheme was a valid content -neutral, time, place, and manner regulation. Peterson appealed. On appeal, Peterson contended that the zoning or- dinances constituted an invalid total ban on the operation of adult entertainment businesses in Florence. Alternatively, Peterson contended the zoning ordinances were content -based and thus subject to strict scrutiny, or lastly, the zoning ordinances constituted an invalid time, place, and manner regulation which failed intermediate scrutiny. DECISION: Judgment of district court affirmed. The United States Court of Appeals, Eighth Circuit, held that Florence's zoning scheme was a valid content -neutral, time, place, and manner regulation. In so concluding, the court noted that by zoning the city entirely resi- dential, Florence effectively prohibited an entire class of conduct —all commercial and business uses —not just conduct pertaining to adult entertainment. The court found that the zoning ordinances at issue did not target adult entertainment and its expressive content. Thus, contrary to Peterson's contention, the court found that the zoning ordinances did not constitute an invalid total ban on adult entertainment businesses, nor were they content -based. Rather, the court found that the zoning or- dinances constituted content -neutral regulations subject to intermediate scrutiny. The court explained that a content -neutral time, place, or manner regulation will be upheld if it is "narrowly tailored to serve a substantial governmental interest and leaves open ample alternative channels for communicating the speech." The court further explained that an ordinance is narrowly tailored if it " `promotes a substantial interest that would be achieved less effectively absent the regulation' and the means chosen does not `burden substantially more speech than is neces- sary to further' the city's content -neutral interest." Here, the court found that Florence had articulated substantial interests, including: "to ensure public health, safety and general welfare . . . to improve the quality of the physical environment of the city; to protect and maintain property values, and to preserve and develop the economic base of the city." Further, Ordinance Nos. 2011-09 and 2011-02 stated that Florence's limited infrastructure, staff, and resources restricted its ability to accommodate commercial or business establishments. The court found that given Florence's small size and population, its desired interests would be achieved less effectively absent the regulation. Thus, any incidental burden on speech from the zoning scheme was therefore no greater than necessary to furthering the interest in keeping Florence residential. As such, the court concluded that Florence's zoning scheme was narrowly tailored to serve a substantial government interest. ©2013 Thomson Reuters 7