Zoning 'Adult' Businesses

The best way to combat obscenity is with vigorous enforcement of the obscenity laws (both state and federal), including RICO obscenity laws. Zoning of "adult" businesses is often a white flag of surrender by the police and district attorney--in other words, "We cannot stop you, therefore we will get you out of our sight." This is not to say that the existence of a zoning law prevents such enforcement. It does not, but it can result in lethargy on the theory that if the pornographers are in the right zone, they are regarded as legal.

Having said that, we must be realistic. The zoning of "adult" businesses is a technique desired by city planners and officials to alleviate a blight on residential and prime commercial areas. We must, therefore, make sure that if the Town Fathers (and Mothers) enact a zoning law, they do it right, and doing it right means confining such businesses to industrial or light industrial zones, or if that is impossible, to the commercial district or districts where they will cause the least harm. Keeping such businesses specified distances away from residential districts, schools, churches, parks and other "adult" establishments is also typically required.

Some may ask why not just zone them out of town entirely? The answer is that the Supreme Court has made it difficult to ban these businesses altogether.

Industrial Zoning

The courts recognize that "adult" entertainment establishments are on the periphery of the First Amendment and deserve minimal protection. Nevertheless, they must be given a reasonable opportunity to locate--in other words, they must be given "breathing" room. But if adequate space is available, you can disperse or concentrate them and relegate them to industrial zones.

Articulating Governmental Interests and Secondary Effects

It is vital in enacting an "adult use" zoning ordinance that the city articulate its predominant concerns, both in the "Findings" section of the ordinance and in public hearings prior to enactment. These concerns might include adverse effect on property values, increase in crime (especially prostitution), preservation of residential and commercial neighborhoods, an increase in problems associated with fire protection, sanitation, parking and traffic problems, and protection of children. Urban planners, real estate experts, the city planning commission or the legislative body itself should, whenever possible, provide evidence of and articulate local deleterious effects.

Cities, however, can rely on the experience of other cities relative to the showing of deleterious effects. Studies from other cities should be made part of the record, and the "Findings" section in the ordinance should name these cities and studies.

In addition, many decided law cases articulate these secondary effects, and these cases could and should be enumerated to substantiate the deleterious effects of "adult" uses.

What Kind of Breathing Room?

The city must refrain from effectively denying "adult" businesses "a reasonable opportunity to open and operate." The City Fathers (and Mothers) and the Planning Commission should first draw up a proposed ordinance and then put a template on the city map and see what percentage of the land mass of the city (total acreage) is available for "adult" use sites and how many such sites there are after excluding places where they cannot locate (e.g., 500 feet from a church, school or residentially zoned area, etc., and also excluding rivers, power lines, highways, railroads, etc).

If after doing this they find that there are no sites left or that the acreage or sites are insufficient, then it is back to the drawing board to rework the ordinance.

How much acreage and how many sites depend on the size and population of the city or county. It is important also to know just what "available" means. Under the 1986 U.S. Supreme Court case, Renton v. Playtime Theaters, a site is "available" even if presently occupied by another business. Undeveloped land is "available" even if not for sale or lease. The Renton Court said, "Respondents must fend for themselves in the real estate market." The First Amendment does not require that such businesses "will be able to obtain sites at bargain prices."

Grandfathering and Amortization

Many states have a rule relative to zoning that provides for a "grandfather" exemption (non-conforming businesses existing prior to the effective date of the zoning ordinance can stay). In such states, the planning commission should restrict the transfer of title of such business (if permitted) and provide for non-expansion (if permitted).

Where there are no "adult" businesses in town, it behooves the citizens to pass a zoning law before such "adult" businesses move in, thus preventing a later "grandfather" exemption. Such an ordinance may also serve as a deterrent so that "adult" stores will avoid locating in the first place.

In other states, the zoning laws permit amortization of non-conforming uses over a period of time. In other words, they are required within a period of time (which could be six months to three years, depending on the facts) to relocate into the new zone to which they have been relegated.

Surveys and reports of the deleterious effects of adult uses in various cities and selected cases upholding zoning ordinances are available from Morality In Media for $50.00.

Reprinted from the Morality in Media Newsletter