Page 32 - AVN August 2016

LEGALESE | | By Clyde DeWitt
Grandfathered Out
How to stick around in the face of zoning ordinances
clauses almost
universally have
”Grandfather
a ‘use it or
lose it’ clause.
That is, if a
grandfathered
use voluntarily
ceases for some
period of time—
typically six
months to
two years—
grandfather
rights are lost.
LEGAL NEWS
Clyde DeWitt is a Las Vegas and Los Angeles
attorney, whose practice has been focused on adult
entertainment since 1980. He can be reached at
ClydeDeWitt@earthlink.net. More information can
be found at ClydeDeWitt.com. This column is not a
substitute for personal legal advice. Rather, it is to alert
readers to legal issues warranting advice from your
personal attorney.
Just about every local zoning ordinance now includes special
provisions for adult businesses. As we know from the Renton
decision, in order to be valid, these ordinances must leave
a “reasonable” opportunity for adult businesses to operate
within the area which is subject to zoning—city, county,
unincorporated county, township or whatever. We also have
all learned that the Reagan-packed federal court system’s
definition of what is “reasonable” is a far cry from reality. Of
late, courts have been tussling with this concept, with mixed
results, although mostly bad ones.
The two Supreme Court decisions which addressed adult
zoning laws are Young v. American Mini-Theatres in 1976 and City
of Renton v. Playtime Theatres in 1986. The Young decision upheld
Detroit’s prohibition against establishing any one of a number
of specifically listed businesses (including adult bookstores
and adult theaters) within 1,000 feet of any two that were
already there. The City of Renton case approved that locale’s
prohibition against opening an adult business within 500 feet
of a residential zone (actually, the Detroit ordinance included
that feature as well, but that issue was not before the Supreme
Court).
The typical adult ordinance mimics a combination of
what was approved in the Young and Renton cases, generally
prohibiting the establishment of an adult business within 1,000
or so feet of another, within 500 or so feet of a residential
zone, and within some distance of various other “sensitive
uses”—typically places of worship, schools, parks, playgrounds,
daycare centers and sometimes some other bizarre things such
as cemeteries and government buildings. One wonders what
damage would be done to the government by including an
adult bookstore nearby.
Invariably, if you get a local zoning map and apply all of the
various twists of the ordinance to it, by the time you color in
the few zones where adult businesses are legal, draw circles
around the churches, schools, playgrounds, parks and whatever
other sensitive uses are included and then add the spacing for
residential zones, you find there’s practically no place in town
where you can open your adult emporium.
For years now, clients have come to their lawyers bemoaning
the fact that the city in which they would like to open has only
fifty locations for adult businesses, but none of them are for
rent. Thus, the clients complain, it cannot possibly be that
the city has left a “reasonable” opportunity for them to open
their businesses because there are no opportunities at all.
“Not so,” say the courts. In the City of Renton opinion, Chief
Justice Rehnquist made sure that adult businesses were not
given any special favors. Rather, Justice Rehnquist opined, they
must compete in the real estate market just like everybody
else. The logical fallacy of that, of course, is that “everybody
else” doesn’t have to be 1,000 feet from a school, 500 feet
from a residential zone, 850 feet from a church and so on.
Nonetheless, the courts have almost universally arrived at the
conclusion that the fact that no potential site is for rent or for
sale is of no consequence. As a result, it is not all that unusual
to see an aspiring adult business operator who has located the
perfect site—which means one that is legal—to purchase the
building and kick the tenant out. Parenthetically, as mentioned
on a number of occasions in this column, purchasing buildings
earmarked for adult businesses is not a really good idea. Read
on, and you’ll see why.
There have been some terrible court decisions which stand
for the proposition that nearly zero locations is enough in a
very large city. Although these decisions arguably are a product
of a combination of very unsympathetic judges and a lack of
proof with respect to demand, they nonetheless are on the
books.
(Continued on page 34)
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