Daily Development for Tuesday, April 3, 1999

Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

ZONING AND PLANNING; ADULT BUSINESSES: City's zoning ordinance prohibiting adult establishments from operating within 750 feet of certain types of property, which effectively prevented such businesses from operating within the City, impermissibly regulated free speech.

A.F.M., LTD. v. City of Medford, 704 N.E.2d 184 (Mass. 1999).

City placed additional restrictions on the location of adult businesses within the C2 district. The amendments to the City's zoning ordinance prohibited the location of such adultoriented establishments within 750 feet of the nearest lot line of certain property including schools, playgrounds, churches and residential property.

Thereafter, Plaintiff applied for a special permit to operate an adult business within the C2 district. At a subsequent hearing, Plaintiff presented evidence of substantial compliance with all special permit requirements except for the location requirement. The proposed business would operate within 750 feet of a residential district. Citing the location requirement, the city council denied the special permit application.

The Superior Court issued a preliminary injunction enjoining City from preventing the location and operation of Plaintiff's adult establishment as set forth in the special permit application. The Supreme Judicial Court of Massachusetts affirmed, agreeing with the trial judge that the "City's zoning scheme confines adult businesses to 0.11% of the City's total developable land" and that by "confining "adult businesses' to that tiny area . . . effectively forecloses the operation of any such businesses."

The Court, citing the leading U.S. Surpeme Court precedent, City of Renton v. Playtime Theatres, 475 U.S. 41 (1986), and a few cases decided in the three years following that decision, reasoned that City unreasonably foreclosed avenues for communication of adult materials by utilizing its zoning scheme to effectively prevent the operation of adult businesses within the City. The Court further noted that City failed to provide sufficient information explaining why it was reasonable to restrict adult establishments to such a small proportion of developable land within the City.

The trial court had cited the lack of information as to whether any of the land available for the adult uses was in fact for sale or rent. The Supreme Court, citing Renton, pointed out that this is not a Constitutionally relevant inquiry, but concluded that the judge's curiousity on the point did not invalidate his overall view that the available land in any event was not an adequate provision of zoning permission.

Comment 1:In National City v. Weiner, 12 Cal.Rptr.2d 701 (Cal. 1992), the city's ordinance effectively eliminated all land in the city for adult usage, but provided an exemption for enclosed malls. There were three enclosed malls in the city, none of which would rent to an adult store. The California Supreme Court, in a split decision with strong opinions on both sides, upheld the ordinance. The Medford court does not cite National City.

Compare: Smith v. Coutny of Los Angeles, 29 Cal. Rptr. 2d 680 (Cal. App. 2d 1994) (Ordinance that provides that adult businesses will be prohibited if they "adversely affect" nearby churches, schools, or other institutions or requiring that such businesses be "sufficiently buffered" from neighboring residential areas are unconstitutionally vague.)

Also compare: La Trieste Restaurant and Cabaret, Inc. v. Village of Port Chester, 40 F.3d 587, 1994 U.S. App. LEXIS 33040 (1994). (Topless dancing is a form of free speech entitled to protection from "selective enforcement" in a planning agencies administration of use variances.)

Comment 2: Most city zoning lawyers probably have advised their clients that, except in large cities with a wide variety of land uses, the Renton decision standards can be met and adult businesses effectively limited to locations that are useless to them. The significance of the Medford decision is that it represents a state supreme court concluding that it will look more closely at practical useability of available sites and will demand greater foundation for City regulation in this area.

The Editor suspects that, at the end of the day, a well drafted and thoroughly annotated staff memorandum supporting a rigorous limitation of adult business probably will lead to enforcement in most courts. (Note that the Medford case involves only a preliminary injunction, and that the city still has a chance to support its policies at another hearing.) Undoubtedly the city attorney's club has such a memorandum floating around, ready to be tailored to your town.

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