Agenda - Planning Commission - 12/07/2006

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nance as unconstitutional, leaving the commu- nity with no regulations and allowing the plain- tiff to locate a sex business in virtually any com- mercial zone. BULLETPROOFING YOUR ORDINANCES Court Challenges Although some operators of sex businesses continue to challenge the regulations that gov- em them as content-based, the current litiga- tion is about secondary effects. As recently as cial" issues, such as the regulation of bill- boards or the sex industry, can have their own purpose statements. While these get the record started, we also recommend the following: . At least one complete copy of all publica- tions, reports, or studies cited in support of the adoption of the ordinance should be made available to officials at meetings and placed in the permanent record of the public hearing. Addressing the Challenges Attorneys forthe sex industry argue that studies should be conducted in strict confor- mance with scientific methodology, reaching absolute con"elusions. We disagree. The courts recognize that the local legislative process is not scientific and that local offi- cials are often asked to evaluate and make policy judgments based on available infor- mation. In Los Angeles v. Alameda Books (152 L. Ed. 2d 670, at 683, 122 S. Ct. 1728, at ~ ~ c ~ ~ o "" W "C C ~ ~ c- o 8 ~ 1 8 ~ ~ ~ o ~ 10 years ago, sex business ordinances cited (with little discussion) early studies from Los Angeles, Austin, Oklahoma City, Indianapolis, and other cities to show the adverse second- ary effects of sex businesses. Today, attorneys for the sex industry are challenging such ordi- nances on three grounds: . Alleged deficiencies in the methods used in some or all of the studies; . an apparent lack of relevance of some of the studies to the community relying on them; and . the lack of clear connections between the sec- ondary effects cited in the studies and the solu- tions incorporated in the adopted ordinance. The arguments hold some merit. Indeed, in isolated cases there is merit to all of them. It is increasingly critical for communities to build a legislative record that can defend the ordinance. The legisla- tive record may also deter costly, time- consuming litigation. Building the Legislative Record The legislative record provides the history of adopted legislation. Obviously, zoning ordinances include brief statements of pur- pose. But similarly, amendments for "spe- 84 . A staff memo highlighting major findings from the studies the staff used to create the ordinance should have citationS ofthe studies and connect the findings to local issues and to the proposed ordinance (see discussion of "relevance" below). . Document detailed "findings" on why the governing body is adopting the ordinance, with references back to the studies and staff memo and to local facts and conditions. . Include a statement of purpose in the text of the ordinance. . There should be a clear record in the min- utes or transcripts showing that the studies, staff memo, and findings were thoroughly reviewed in a public meeting with the officials "voting on the matter. 1736 (U.S. 2002)), the Supreme Court reiter- ated its 1986 position from Playtime Theatres, lnc. v. City of Renton. . . . we held that a municipality may rely on any evidence that is "reasonably believed to be relevant" for demonstrating a connection between speech and a substantial, inde- pendent govemment interest. . . This is not to say that a municipality can get away with shoddy data or reasoning. The municipality's evidence must fairly support the municipal- ity's rationale for its ordinance. Cities may use studFies from other juris- dictions related to the secondary effects of sex businesses, but in Alameda Books the Court said the record must show that elected offi- ZONING PRACTICE 10.06 AMERICAN PLANNING ASSOCIATION I page 4