Some opponents of the adult-use zoning ordinances passed by the Northampton City Council on November 2 have been arguing that they constitute illegal “spot zoning” because the ordinance was partly motivated by opposition to a specific business, namely Capital Video’s plans for a large porn shop at 135 King Street. They say that the 1,000-square-foot threshold for adult material unfairly treats Capital Video differently from other businesses in town that include such material in their inventory. This is a complete misunderstanding of the term “spot zoning”.
Spot zoning is a zoning reclassification that creates a small zone of inconsistent use within a larger zone, for the benefit of the individual property owner, and with no objective basis for treating that parcel differently from its surroundings. Courts may invalidate such piecemeal zoning if it appears that the city has given the landowner preferential treatment to the detriment of his neighbors. [See Real Property in a Nutshell, 4th edition (St. Paul: West Group, 2000); Gary Taylor, “Removing Spot Zoning from the Fabric of Zoning Practice” (PDF), Michigan State University Public Policy Brief, 2004.]
The issue often arises when residential neighbors object to the rezoning of an adjacent parcel for commercial use, as was the case in Rando v. Town of North Attleborough, 692 N.E.2d 544 (Mass. App. 1998). Homeowners sued to overturn a zoning amendment that had extended the nearby commercial strip to permit a developer to build a shopping mall, in exchange for his economic concessions to ease the impact of increased traffic. In rejecting their claim, the Land Court observed, “Spot zoning occurs when there is a ‘singling out of one lot for different treatment from that accorded to similar surrounding land indistinguishable from it in character, all for the economic benefit of the owner of that lot.’ Whittemore v. Building Inspector of Falmouth, 313 Mass. 248, 249 (1943).” The court found that the rezoning benefited the general public as well as the developer, and therefore allowed it to stand.
Although spot zoning cases usually involve zoning that treats a landowner better than his neighbors, the objection might apply just as well to the reverse scenario, where one parcel is singled out for worse treatment without a rational basis other than the city’s animus against the owner. Either way, this principle is inapplicable to the recent Northampton ordinance, which does not discriminate among identical parcels in a zone, but imposes new restrictions on all the land within that zone. The City Council’s finding that the size of an adult business increases the severity of its secondary effects on the neighborhood is enough to make the 1,000-square-foot rule survive rational-basis review. In any event, that would not be a spot zoning claim, but a general Equal Protection Clause claim that Capital Video was not being treated the same as other media retailers.
We note that cities have only two options when it comes to zoning of problematic businesses: either pass comprehensive restrictions ahead of time, or wait till there is an imminent threat. Had the Northampton City Council taken the former course 10 years ago when the nude dancing ban was on the table, and enacted adult-use zoning similar to the ordinances that many other Massachusetts towns have passed, the same people who are now alleging “spot zoning” would have accused the Council of overreaching to combat imaginary dangers. Legislation does not occur in a theoretical vacuum, nor do cities have infinite time to react to changing conditions. Zoning changes are often made in response to particular development proposals. The recent ordinance is no different from thousands of other such amendments that have withstood court challenges.
I guess I don’t really care whether it was spot zoning or not. But one thing you say here kind of caught my eye. You say, “…because the ordinance was *partly* motivated by opposition to a specific business, namely Capital Video…” [emphasis added.] I was wondering what the other parts of the motivation were. I thought that the ordinance was entirely motivated by Capital Video’s plans. What else was motivating the change in the zoning ordinance?
Capital Video’s proposal inspired us to research porn and the porn industry as a whole. We found voluminous evidence of secondary effects caused by a wide variety of adult businesses. This motivated us to support adult-use zoning.
Ok. But if Capital Video was only part of the reason for the zoning ordinance, what else was part of the reason? I mean, a little zoning ordinance in a small town in rural Massachusetts doesn’t really have a great impact on the multi-billion dollar-a-year porn industry, so it would be weird if the City Council’s opposition to the porn industry as a whole lead them to change the ordinance.
Also, the ordinance doesn’t ban *all* pornography from Northampton: it only bans large porn stores from the non-highway business district and from a 500-foot radius around any school, place of worship, or residence. So it would be weird if opposition to the porn industry as a whole led the City Council permit small porn stores (almost) anywhere, and large porn stores along the highway as long as they’re a little ways away from houses, schools, and churches. So it probably wasn’t opposition to the porn industry as a whole.
What else was it?
Doug, our motivations and campaign are much broader than the Northampton City Council’s. Secondary effects and zoning are just what can be done with the law. The rest is a matter of educating people.
All our motivations are out in the open, right on the home page of NoPornNorthampton.org. There’s no need to guess about them.
Perhaps I’m confused. I thought we were talking about the actions of the City Council, not you. I thought that when you said, “the ordinance was partly motivated by opposition to a specific business,” you were talking about the motivations of the City Council, since they are the agency who passes ordinances, not you. I was asking about the other parts of their motivation, not yours. I was asking you about their motivation because you were claiming that opposition to the specific business was only part of their motivation. If I’m wrong about who passes ordinances, whose opposition motivated them to pass the ordinance, or who says the motivation was only partly motivated by opposition to a specific business, please let me know. Otherwise, please state the other parts of the City Council’s motivation for passing the ordinance and we can let this matter drop.
I’d just like to point out that I grew up in Attleboro and remember N. Attleboro zoning Wiccans (!!!) out of town because of “the children, the children.”
Just FYI.
xN
As to the councilors’ motivations, we can look to their statements in the media and in council meetings. They mentioned a concern for secondary effects, the unresponsiveness of businesspeople in the Capital Video transaction (e.g. R.J. Greeley), and calls from their constituents.
Any law (or tool) can be abused. A knife can be used to cut bread or to intimidate a robbery victim. The best defense is to talk out the issues in public and let the people weigh the arguments.
So, is it safe to say that Capitol Video was the sole motivation for the change in the zoning ordinance? This is the fourth time I’ve asked, and you have yet to point to a reason for their having passed it that clearly has nothing to do with Capitol Video. Is that correct, that Capitol Video is the sole reason for the ordinance? If it is not, please let me know.
I don’t understand why you’re making a big deal about this. The people of Northampton implicitly trusted business and property owners to use good judgment about where to site controversial businesses. The Capital Video episode showed that this trust was misplaced. Ordinances were passed to address the situation. Similar scenarios have played themselves out countless times across the country.
The city council is busy. It’s unreasonable to expect it to anticipate every possible bad thing that could happen to the city in advance and preemptively pass laws. Capital Video’s action called attention to a weakness in the city’s zoning plan.
The ordinances say that the people of Northampton don’t want anyone’s large porn shop next to homes, not just Capital Video’s shop.
I agree that this is not one of the more substantial issues you cover on your blog. But here are several reasons to make a “big deal” about this. One is simply to correct an inaccuracy in the post. You say that the ordinance was “partly” motivated by opposition to Capital Video, and then there must be some other parts. But there are no other parts. It seems that in reality, the ordinance was solely motivated by opposition to Capital Video. Now you seem to be saying that it’s OK to pass a zoning law that’s solely motivated by opposition to one business.
Second, although it may be the case that this is not an According to Hoyle instance of “spot zoning,” it may yet be an objectionable use of zoning law. It may be objectionable because the change in zoning ordinace was used as a weapon against one particular business, because of the nature of the material they will sell, while other, relevantly similar businesses were spared. One could argue that this is a misuse of zoning law, equivalent to outlawing Liquors 44 while permitting State St Liquors, King St. Liquors, and Pop’s Pagage Store to flourish. I take it that this is what Peter, Always Controversial, was getting at, although I don’t recall him using the term ‘spot zoning.’ I could be wrong, though.
Third, it seemed to me that your responses to my questions demonstrated two of your more infuriating character traits: a certain squirminess with the facts, and a propensity toward self-aggrandizement. When I say “squirminess,” I mean that, for example, you only mentioned the behavior and effects of Capital Video stores when you explained why the Council passed the zoning ordinance, but didn’t admit that opposition to Capital Video was their sole motivation. I had to ask four times before I got the straight answer: Capital Video was the only motive for the ordinance.
When I say “self-aggrandizing,” I mean that although I was clearly, obviously asking why the City Council, who is the only body authorized to pass zoning ordinances in Northampton, your answer was all about what *your* motivations were. I know what you say your motivations are: to protect the world from pornography. And I know what they actually are: to protect the value of your
Victorian mansion by keeping a porn store out of your backyard. I wasn’t asking about *you.* *You* didn’t pass the ordinance. The City Council did, even if they passed it because they believed your hype. I was asking about them, not you.
OK, Doug. You’ve made your points. Let the people judge where the merits lie.
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