Daily Development for Friday, March 23, 2001

CONSTITUTIONAL LAW; FREE SPEECH; ADULT BUSINESSES: Adult business zoning regulations that restrict such business within certain distance of identified "protected activites" are unconstitutional when they permit other parties to establish such activities within the protection zone during the time that the adult business application is pending, thus establishing a "private veto power" against such businesses.

Young v. City of Simi Valley, 216 F.3d 807 (9th Cir. 2000)

Applicant obtained a zoning clearance on property he had contracted to purchase for the purpose of established an adult business. Simi Valley had already had one adult business ordinance declared unconstitutional, and had begun work on another, but apparently had dropped the project. No adult business had every located in the city. Not wanting any of that bad stuff in Happy Valley (editor's supposition), the city reacted to this application speedily. The city promptly rescinded the initial zoning clearance given to applicant and requested additional information. While this information was being prepared, the city adopted a moratorium while it prepared an adult zoning ordinance.

A few months later, the City adopted a permanent ordinance that established a

500 to 1000 foot "buffer zone" between an adult business and identified "sensitive use" activities, including residential zones, youth-oriented businesses, schools, parks, playgrounds, churches or other places of worship, and any "noncommercial establishments operated by religious organizations.

Turns out (surprise!) that the applicant's proposed property fell within a "buffer zone" and therefore applicant could not locate his proposed adult business there. In fact there were only four potential adult business zones in the entire city under this ordinance.

Nothing daunted, applicant leased a second piece of property that appeared to be located the permitted distance from protected activities. Under the new ordinance, any adult business required a special use permit, even when it was outside any "buffer zone," so applicant applied for such a permit. The approval process for was lengthy, as the City required applicant to resubmit all the plans. On the day the application became complete, a church sponsored Bible study class announced plans to meet within the buffer zone distance from the new proposed site, and the city denied the special use permit on that basis. From all appearances this Bible study class was established specifically to preempt the establishment of the adult business.

The city also claimed that a nearby Karate school also was a "youth oriented business," although the City Attorney's office had earlier told applicant, before he leased the property, that this location was outside of any buffer zone area. (The court's discussion is not clear as to whether the presence of the Karate school reduced the available sites for adult businesses in Simi Valley to three.)

The city interpreted its ordinance to mean that the buffer zone requirement was to be evaluated as of the time of consideration of the application, rather than at the time of the filing, and consequently took the Bible study class into account in denying the special use permit.

By now the applicant had spent over $45,000 in compliance with various city information requests and had committed himself to a substantial lease.

Applicant challenged the city ordinance as a violation of First Amendment Free Speech rights.

The trial court struck down the ordinance as facially unconstitutional because of the "private veto" feature, which gave a party seeking to block the adult business the right to commence a "protected activity" within the buffer zone area after the adult business filed an application. It also held that the city had provided an inadequate opportunity for this kind of free speech activity to be carried out because of the scant number of sites within the city.

On appeal, the Ninth Circuit panel affirmed the ruling on the facially unconstitutional nature of the ordinance, but did so with great caution, perhaps in response to the strong dissent filed by one of the panel. Further, the court refused to conclude that, based upon the evidence, the provision of four sites where adult businesses could be carried out failed to meet the requirements of the Constitution.

Even though, in fact, the existence of the Karate school was a sufficient grounds upon which to deny the special use permit, the court concluded that the applicant had made out a showing that the ordinance was unconstitutional on its face, because the ordinance was overbroad and created "an unacceptable risk of the suppression of ideas."

Under the famous test developed it City of Renton v. Playtime Theatres, Inc.,

475 U.S. 41 (1986), a city can regulate adult businesses, but must provide "reasonable alternative avenues of communication" for the protected speech right. The court, commenting that the issue before it was a matter of first impression, concluded that the "private veto power" feature of the ordinance effectively prevented the carrying out of the free speech activity represented by the adult businesses. The ordinance was likely to discourage anyone with an adult business from applying for a permit, since to do so would invite an opponent, as here, to block the permit simply by opening up a sensitive use nearby. The applicant had clearly suffered an injury in fact, the court held, in light of the substantial amount of time and money it had expended in developing application materials.

The court first seemed to conclude that any time the police power of land use regulation was turned over to a favored private party, there was a Constitutional defect. The court "waffled" however, when it said that such a private veto ordinance was unconstitutional on the facts before it, but conceivable might not be in other circumstances involving other contexts. It did not identify what those contexts might be.

The court then considered the problem of the lack of adequate sites for adult businesses. It commented that because there were no current adult businesses in the city, and because there had never been an applicant for such a business before this, it was premature to conclude that, as a matter of law, the number of sites available for adult businesses was Constitutionally inadequate as a matter of law. It noted that, under Renton, the Constitution does not guarantee that there be a site available for an adult business, but only that there be no unreasonable interference with such businesses from obtaining a site on which to operate. If the editor reads the opinion properly, the court held that, under the circumstances, with the "private veto" ordinance in effect and no other applicants ever, the question of whether four sites was enough was not ripe.

The dissent rejected entirely the analysis of the majority concerning whether an ordinance is unconstitutional when it "discourages" parties from seeking to establish adult businesses. Rather, the dissent would have found that the constitutionality of an adult business ordinance can be determined by comparing the supply of locations available for adult businesses to the demand for such sites. The dissent stated that it would find an ordinance unconstitutional "if and only if, the ordinance restricts the number of sites . . . below the demand for such properties." It claimed that this was the Fifth Circuit test already.

The dissent claimed that "content neutral" restrictions ought to be permitted in most cases where they respond to the "secondary impact" of the regulated conduct.

Comment 1: With respect to the dissent's last point, the editor is at a loss to understand why an ordinance addressing only adult business and identified "sensitive uses" is "content neutral."

Comment 2: The dissent says nothing about the basic concept of conferring upon any particular segment of the community the right to squeeze out a given land use by establishing uses within the "buffer area." To the editor, this raises a fundamental Due Process control that goes beyond the First Amendment.

Comment 3: If we start with the proposition, as we must that adult businesses are protected speech, then permitting a third party, not the government, to bar the activity would appear to be an absolute abdication of the municipalities duty to regulate such speech only upon an important content neutral basis. In this case, the Bible study class in question consisted of a rented room with some folding chairs which met from 6:30 to 7:30 A.M. on Thursdays. It was established by an anti-adult business pastor of a church from another community some distance away. The court, in the editor's view quite properly, viewed this case as a clear demonstration of how the "private veto" would operate.

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