Agenda - Planning Commission - 03/06/2003

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Z,B. February 10; 2003 -- Page 5 DECISION: Reversed. The county violated Smartt's First' Amendment'rights. .. .. When the Sheriff's. Department shut down Xoticas, Smartt was informed no dancing would be permitted even if dancers were alone and fully clothed~ - A county could not regulate sexually-oriented businesses based on distaste for the message they communicated. Such a regulation would be an i/legal content-based infringement of expression. An ordinance or regulation enacted for the purpose of restraining expression on the basis of content presumptively violated the First Amendment. By prohibiting dancers from dancing fully clothed, the county went be- yond the state's regulations limiting the exposure of "specified anatomical ar- eas.'' In doing so¢ the county attempted to regulate the essential expressive nature of Xoticas and imposed an illegal content-based restriction. Citation: K. Srnartt Investments Inc. v. Martinez, Court of Appeals of Texas, 4th Dist., San Antonio, No. 04-01-00482.-CV (2002). see also: MD II Entertainment Inc. v. City of Dallas, 935 F. Supp. 1394 (1995). see also: Lakeland Lounge of Jackson Inc. v. City of JackSon, 973 F. 2d 1255 (1992). Appeal -- Planning board sues over permit approval Clabns board of appeals shouldn't have approved retirement community MASSACHUSETTS (01/06/03) -- Hingham Campus LLC applied to the Hiagham Board of Appeals for a comprehensive Permit to construct a continu- ing care retirement community on over 100 acres of land. After several months of hearings, the board' granted the permit. The proposed project included 1,750 rental apartments with amenities and services for the elderly, an extended care center, and a skilled nursing facility. Under the proposal, the project's residents were required to pay an entrance fee, rent, and'service fees. The project was funded'throug/~ an affordable hous- ing financing program. The Planning Board of HinghaTM sued, claiming the board of appeals.ex- ceeded its authority: The court ruled in favor of Hingham Campus, finding the planning board could not sue. on its own. The plann/ng board appealed, arguing the project did not comply With the zoning bylaws, affordable housing rules,, or permit requirements. DECISION: Affirmed. The planning board, was unable to sue. State law allowed "any person aggrieved by'.the issuance of a comprehen- sive permit" to sue. Municipal boards and officers were not "persons" because "persons" ordinarily did not describe the state.or its subdivisions. Consequently, 131