Zoning Practice — November 2006

Ask the Author

Here are reader questions answered by Eric Damian Kelly and Connie Cooper, authors of the the October 2006 Zoning Practice article "Regulating Sex Businesses."

Question from Sarah More, Planning and Zoning Administrator, Community Development Department, Town of Oro Valley, Arizona:

Oro Valley has a SOB ordinance, makes them conditional uses in certain commercial locations, subject to several specific requirements. The P&Z Commission is concerned that the conditional use criteria are the typical nuisance, hazard, general welfare, and reasonable compatibility criteria. There really isn't much room to deny, but I figure that, once they get through meeting all the code-mandated specific requirements (special setbacks, locational requirements, lighting, etc.), they should be allowed. In that case, should I just delete the conditional use hearing?

Answer from authors Eric Damian Kelly and Connie Cooper:

It appears that you have two different problems, both of which will require ordinance amendments to fix.

First, the courts have consistently held that there must be a reasonable number of locations available by right for sexually oriented businesses that are protected by the First Amendment. From your description, it appears there are no sites available by right, only those approved as "conditional uses."

A conditional use permit gives the decision maker too much discretion, resulting in at least the theoretical potential for censorship. In a line of cases that traces back to a U.S. Supreme Court decision involving a system of issuing permits for newspaper boxes, City of Lakewood v. Plain Dealer Publishing, the courts have consistently held that such decision-making processes are facially unconstitutional. For that reason, your seemingly practical suggestion to "delete the conditional use hearing" is not adequate; the ordinance should be amended to make the SOB uses ones permitted by right in certain zoning districts (making sure there are adequate sites within these districts). You certainly can make these uses subject to certain standards, such as separation distances, parking, lighting, etc.

Secondly, the context of your question also suggests the ordinance contains a mixture of objective standards, such as separation distances from specific uses and lighting standards, and more general standards, such as "nuisance, hazard, general welfare and reasonable compatibility. ..." Separation distances, lighting standards, screening requirements, and interior design standards are objective standards that can be addressed through an administrative permitting process. However, the more general standards create the same problem as the conditional use permitting process now in place. Simply, they give the staff too much administrative discretion. For that reason, ordinances in which the granting or denial of permits is based on such general standards have also typically been found to be facially unconstitutional.

Lastly, if a prospective business were to challenge your ordinance and a court found it facially unconstitutional, the court could treat the city as though it had no ordinance at all — with the result that the city would have to issue a permit to a proposed SOB, even if the location violated other, objective standards in the ordinance. Thus, the need to fix your ordinance is urgent — before you get another application.