Agenda - Planning Commission - 12/07/2006

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likely to report the incident than someone who suf- fers a similar fate at a department store. Criminals may not understand the theory but they know where to find soft targets. There is evidence to suggest that sex businesses have a negative effect on property values. The most credible evidence comes from appraisers and lenders who know the value of real estate because they deter- mine loan values, which ultimately control market value. Several surveys of appraisers, lenders, and real estate professionals indicate that they believe sex businesses have a measurable negative effect on property values. Our recent survey of appraisers in Fort Worth, Texas, shows they see the negative effects of . sex businesses on residential and commercial prop- erty values as extending out from the establishment as far as 3,000 feet. Respondents believed that all types of sex establishments. including media stores, cinemas, and cabarets, would have significant nega- tive effects on property values, and that those effects would be much greater than the property value impli- cations of bars, pawn shops, or salvage yards. ADEQUATE ALTERNATIVE AVENUES One of the fundamental principles of First Amend- ment law is that restrictions on First Amendment rights are permissible as long as the regulations allow adequate "alternative avenues" for the commu- nication. For sex businesses in communities large and small, that requirement means allowing an ade- quate number of sites for such businesses to operate (see Schad v. Borough of Mt. Ephraim, (452 U.S. 61, 101 S. Ct. 2176, 68 l. Ed. 2d 671 (1981)). Courts around the country differ in their opin- ions of the number of sites considered "adequate," the details of which are well beyond the scope of this article. At a minimum, communities must have sites available for new sex businesses, regardless of how many currently exist. Though not absolute, useful benchmarks are one percent of total land area, or five percent of nonresidential land, zoned to allow for sex businesses. A community falling below these numbers should reexamine its ordinance in light of current law. And "available" means available by right. Rezoning processes or special use permits will not count. Large separation require- ments from sensitive uses may eliminate many otherwise eligible sites. Communities typically have to reduce the desired (and defensible) separa- tion requirement simply to create enough available sites. The failure of an ordinance to pro- vide for adequate alternative sites may result in a court striking down the ordi- ~ ~ :::r c ~ ~ < n c c c ;;- n c c ~ " " c c. m c. c i ~ '< ZONING PRACTICE 10.06 AMERICAN PLANNING ASSOCIATION I page 3 83