Since Detroit first added adult businesses to its "anti-skid row" ordinance in the early 1970s, zoning has been a growing dilemma for operators of adult brick-and-mortar businesses. The usual objection is that locations that work are simply not available, and that objection is well taken. But there are other zoning issues that often escape discussion, although those who have developed adult businesses are painfully aware of many of them. The recent moratorium case in Seattle is one example.
Believe it or not, zoning — at least zoning of sorts — goes all the way back to colonial times. As early as the 1600s, colonial cities such as Boston, Salem and Charleston had enacted laws that controlled the location of slaughterhouses and distilleries. The idea of undesirable secondary effects, you see, is far from novel, but it was also hardly common.
Because of the lack of any sort of city planning, as we now know it, by the time of the Civil War, portions of many cities had grown into what one author described as "a hodge-podge cluster of mixed uses," and they were. The Industrial Revolution dramatically exacerbated that problem, leading to the invention of zoning districts — commercial, residential, industrial and so on — which served to separate, for example, industrial uses from residential and commercial ones, mostly to preserve the relative tranquility of residential and commercial areas; in other words, to reduce the undesirable secondary effects that industrial uses had on residential and commercial ones. Other, so-called "land use regulations" went along with the concept of districts.
It might have occurred to you that this entire concept of public regulation of private property significantly rankled the property owners, and you would be right. They tenaciously challenged the entire concept of zoning in courts and ultimately (for the most part) lost — an outcome that should ring familiar with adult retailers. That's right, folks:; The phenomenon of property owners fighting to use their property as they wished against cities trying to regulate such uses allegedly to ameliorate undesirable secondary effects pre-dates the Renton brouhaha by at least a century!
In the early 20th century, comprehensive zoning of cities became more commonplace, and state legislatures began enacting statutes enabling comprehensive zoning plans. The property owners continued battling zoning restrictions in court, claiming they violated their constitutional property rights, but by 1926, courts in Massachusetts, Louisiana, New York, Illinois, Minnesota, Wisconsin, Kansas, California, Rhode Island, New Jersey and Texas had rejected those claims, and the United States Supreme Court followed suit in Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365 (1926). The bottom line was that zoning restrictions were nothing more than a manifestation of the states' police powers, acceptable under the Constitution.
Since then, zoning has grown exponentially, although it varies from place to place. Most states have general or regional plans, and each city's zoning setup must conform. Otherwise, you might find an industrial zone in one city that is contiguous to a residential zone in the next one, which would defeat the objective of zoning.
Moreover, zoning ordinances generally contain much more than just which uses can exist in given areas of town. Zoning ordinances now regulate (and have done so for many years) how far a building must be set back from the street and from the adjacent property lines, how tall the buildings in a given area can be, the number of off-street parking spaces required for each category of structure, how much landscaping must be present, and more. Some zoning ordinances have very specific design-review requirements, such as for the Gaslamp District in San Diego and most of Santa Fe, New Mexico.
When a city, county, township or whatever enacts or amends a zoning ordinance, normally a "grandfather" provision is included, allowing existing uses to continue, usually until the use is abandoned. The surviving business is called a "lawful nonconforming use" or something to that effect. For example, in Ohio, as a matter of state law, such a use must be allowed to remain until it is "voluntarily discontinued for two years or more." More than half of the states, however, have no such restriction.
As a practical matter, the reason most zoning ordinances allowed for lawful nonconforming uses was to avoid insurrection, and to a certain extent, that still is the case. Otherwise, as a political matter, no city ever could "down-zone" any area (meaning to tighten up the restrictions, such as changing from multi-family to single-family residential) because the property owners would revolt — these days, by challenging the ordinance in court rather than storming city hall with guns and nooses. So, allowing existing uses to remain for their natural lives, or at least a very long time (like 20 or 30 years), is the norm. However, the theory behind this, that nonconforming uses would die a natural death in a few years, has been proven wrong.
Down-zoning happens. And it may occur to those of you familiar with the Fifth Amendment that down-zoning might constitute a taking of property rights. For example, if you purchase a piece of oceanfront property that you had earmarked for the construction of two residences, and before you can get them built, the zoning is changed so that only one such residence can be built, you would feel as though the city had taken your property, or at least some of the value of it, and should be forced to pay you for it; right? Nope! The Supreme Court approved exactly such a circumstance, holding that the city is not required to pay you for the extent that your property value is reduced, unless the regulation deprives an owner of every use for which the property is reasonably available — in other words, when it denies an owner all reasonably beneficial and economically viable use of the property. Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).
So, what happens if they down-zone your land from industrial to commercial and it has an existing industrially used building? Well, if the building isn't good for anything else, then you might have a check coming from the city because, in a sense, it has confiscated your building. But if you can use the building for something else, you are stuck.
Enacting or amending zoning ordinances is normally more work for a city than enacting other regulations. Most cities have a planning commission, or something similar, which considers both amendments to the zoning code and applications for zoning permits. Again, this varies from place to place, but this is generally how it works: A proposed amendment to the zoning ordinance must first endure hearings before the planning commission. Typically, notices to potentially impacted property owners are required so that they do not fall victim to sneak attacks by the city council.
Usually the planning commission considers applications for variances and for conditional use permits as well. The zoning code, you see, will have some uses that are allowed as a matter of right in a particular zone, and others that are allowed only with a "special use" or "conditional use" permit. (The terminology varies from place to place.) The property owner applies for the permit and the planning commission decides whether the use would be a good idea. Sometimes, extra conditions will be added, like limited hours of operation or more parking.
Some zoning codes allow variances, which is just what it sounds like: A use that ordinarily is not permitted in the given district. Again, those are obtained by convincing the planning commission that a variance is a good idea.
So, what happens if there is an emergency and the city needs to prevent development while it hammers out a zoning amendment? Most places allow the city council to pass a moratorium, which temporarily halts all development in a given area or, rarely, for a given type of use, while the planning commission mulls available permanent zoning approaches. Often a moratorium requires a super-majority of the city council; say, at least three-fifths.
Once cities began figuring out, in the 1970s, that zoning was the magic bullet to deal with adult businesses, zoning began running amok! Because of the mentality of elected officials — thinking that opposing adult businesses at all cost is what the constituency always wants — city councils tend to turn zoning concepts on their heads to stop them. Examples are legion.
Start with the trend of relegating adult uses to industrial zones. Under many zoning ordinances, adult businesses are relegated to industrial zones, where commercial businesses are generally prohibited (except where ancillary to an industrial use, like a restaurant where the employees can eat lunch). The reason commercial businesses are prohibited in industrial zones is so that there will be a place where the city can maintain its needed industrial base. One might well ask how adult businesses are related to a city's industrial base!
Then there is the conditional use permit ("CUP") and the moratorium. Cities quickly got the idea that adult uses should be subject to CUP requirements. The problem with that was that the statutory language establishing the CUP generally allows the planning commission to exercise its discretion in granting or denying the permit and to take all the time it wants to decide what to do. Cities have claimed that this was different than a "speech license" because it came from the zoning code and not the business-licensing rules have been soundly and consistently rejected by the courts.
And then there is every planner's favorite, the moratorium. Usually the purpose of a moratorium is to hold off development in an area of town while consideration is given as to how it should be developed. But on many occasions, the response of a city to an impending adult business has been a moratorium prohibiting the issuance of permits for any new ones; heaven forbid it would acquire grandfather rights! A moratorium against new adult businesses has two constitutional problems. First, until it expires, the state of the zoning ordinance is that there is no location where an adult business can locate; and we all know that there must be reasonable alternatives. Second, if a proposed new adult business applies for a permit, the application cannot be considered until the moratorium expires — which could be forever; 17 years — a full generation! — in the recent Seattle case. ASF, Inc. v. City of Seattle, 2005 WL 2206909 (W.D. Wash., September 12, 2005).
(Clyde DeWitt is a Los Angeles attorney whose practice has been focused on adult entertainment since the early 1980s. He can be reached through AVN's offices, or at [email protected]. Readers are considered a valuable source of court decisions, legal gossip and information from around the country, all of which is received with interest. Books, pro and con, are encouraged to be submitted for review, but they will not be returned. This column does not constitute legal advice but, rather, serves to inform readers of legal news, developments in cases and editorial comment about legal developments and trends. Readers who believe anything reported in this column might impact them should contact their personal attorneys.)
For more on how adult retailers can minimize the bite of zoning laws, see this issue's cover story by clicking here.
