Connecticut Attorney General Files Amicus Brief to Support Town of Berlin; “Off-Site” Sexually Oriented Businesses are Fair Game for Zoning

On March 19 the State of Connecticut filed an amicus curiae brief (PDF) to support adult-use zoning in Berlin, CT. A chain of adult shops called VIP is trying to open a new store in Berlin, less than 250 feet from a residential area. The brief argues that it is constitutional to apply zoning regulations to sexually oriented businesses that claim to have only “off-site” consumption. It also observes that VIP’s porn shop in Manchester hasn’t exactly been a good neighbor. An excerpt from the brief:

In seeking to strike down Berlin’s ordinance, the present suit threatens similar ordinances statewide. Because ordinances such as Berlin’s do not violate the federal constitution and are vitally important to the ability of all towns to protect the citizens of this State from the adverse secondary effects of sexually oriented businesses, the plaintiff’s motion for a preliminary injunction should be denied…

Among other provisions, the SOB Ordinance requires a sexually oriented business to be located at least 250 feet away from any residentially zoned land. (Berlin Town Code, § 14-291(c)). Because VIP’s proposed business location is within 250 feet of a residential zone, it is ineligible for an SOB license…

…VIP claims that the Ordinance violates the First and Fourteenth Amendments…

The United States Supreme Court has firmly established that the right to freedom of speech protected by the First Amendment is not absolute. Although governments may not enact regulations for the purpose of restraining speech based on its content, “so-called ‘content-neutral’ time, place, and manner regulations are acceptable so long as they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication.” Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47 (1986). A regulation is “content-neutral” if it is “justified without reference to the content of the regulated speech.” Id. at 48…

…[T]he Court made clear not only that cities may regulate sexually oriented businesses based on concerns for the businesses’ “adverse secondary effects,” but also that evidence of such secondary effects need not include studies of the regulating city itself. Specifically, the Court explained that “[t]he First Amendment does not require a city, before enacting such an ordinance, to conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses.” Id. at 51-52. Justice Kennedy’s concurrence in City of Los Angeles v. Alameda Books, 535 U.S. 425 (2001), on which VIP relies, reiterates this point and notes that “very little evidence is required” to satisfy the city’s threshold burden. See Alameda Books, 535 U.S. at 451 (Kennedy, J., concurring); see also 535 U.S. at 438 (plurality opinion)…

Even if another jurisdiction’s study does not involve the identical type of establishment that the city is seeking to regulate, the city may properly rely on it if it involves establishments in the same business category. Thus, for example, in City of Erie v. Pap’s A.M., 529 U.S. 277 (2000), the Court, in a plurality opinion, held that the City of Erie, Pennsylvania, in enacting an ordinance banning public nudity, could rely on evidence of negative secondary effects associated with adult movie theaters. As stated by the Court, “[b]ecause the nude dancing at [plaintiff’s establishment] is of the same character as the adult entertainment at issue in Renton [adult movies], it was reasonable for Erie to conclude that such nude dancing was likely to produce the same secondary effects.” Id. at 296-297 (plurality opinion; internal citations omitted).

Similarly, courts have concluded that cities seeking to regulate “off-site” SOBs, such as VIP (which require customers to leave the premises to view or use their purchases), may rely on studies of the secondary effects of “on-site” SOBs (which permit customers to view content on the premises), because the two businesses are reasonably similar. See, e.g., Doctor John’s Inc. v. City of Roy, 465 F.3d 1150, 1166 (10th Cir. 2006)(“the City’s reliance on the ‘package’ of studies commonly invoked to justify SOB ordinances is quite permissible to meet the City’s slight initial burden, even if the studies do not address SOB’s precisely like Dr. John’s”); Z.J. Gifts D-2, LLC v. City of Aurora, 136 F.3d 683, 690 (10th Cir. 1998)(“[e]ven if [the appellant] is a new type of adult business, it may not avoid time, place and manner regulation that has been justified by studies of the secondary effects of reasonably similar businesses”); ILQ Investments, Inc. v. City of Rochester, 25 F.3d 1413, 1418 (8th Cir.), cert. denied, 513 U.S. 1017 (1994)(same).

In addition to studies, or as an alternative to studies, a city may rely on public testimony. For example, in World Wide Video of Washington, Inc. v. Spokane, 368 F.3d 1186, 1195 (9th Cir. 2004), the court, in upholding an SOB, concluded that “[t]he citizen testimony concerning pornographic litter and public lewdness, standing alone, was sufficient to satisfy the ‘very little’ evidence standard of [Alameda] Books.”

In sum, all that is required is that the municipality rely upon evidence that is “reasonably believed to be relevant to the problem” that it seeks to address. Renton, 475 U.S. at 52. The Town of Berlin, in relying both on studies from other towns, as well as public testimony from local individuals and a real estate agent concerning the negative impact of VIP’s proposed opening on the marketability of surrounding properties, has clearly met this standard…

Although most of these studies considered the secondary effects of all types of SOBs, it should be noted that the Indianapolis Study [PDF link] and the Oklahoma City study [PDF link 1, PDF link 2] focused specifically on “adult bookstores.” In the Indianapolis study, approximately 75% of real estate appraisers surveyed responded that an adult bookstore would have a significant negative effect on the value of both residential and commercial properties within a one block radius of the store. See Indianapolis Study, pp. 34 and 51. Most of these appraisers estimated that the decrease in residential property values would be between 1 and 20%, but 21% of the appraisers predicted that the loss would exceed 20%. Id., p. 34. Similarly, in the Oklahoma City Study, 74% of responding real estate appraisers indicated that an adult bookstore within one block of a residential neighborhood would decrease property values. Thirty two (32) percent of these appraisers believed that the decline would exceed 20%, while forty two (42) percent believed that the decline would be between one and twenty percent. City of Oklahoma City, Community Development Department, Adult Entertainment Businesses in Oklahoma City: A Survey of Real Estate Appraisers (March 3, 1986). As the Fifth Circuit recently concluded, “[t]he Indianapolis and Oklahoma City studies support the belief that off-site sexually-oriented businesses cause harmful secondary effects to the surrounding area in the form of decreased property value.” H and A Land Corp. v. Reliable Consultants, Inc., No. 05-11474, 2007 U.S. App. Lexis 3941 at *12 (5th Cir. Feb. 22, 2007).

The State is not aware of any formal studies of the secondary effects of SOBs in Connecticut. There is no reason to believe, however, that the secondary effects here are any different than in other States. Indeed, in Manchester, Connecticut, where VIP recently opened a new adult bookstore, it has made little effort to be a good neighbor. Instead, it has provoked outrage from local residents by painting its new store “neon yellow.” As one resident railed:

The building looks like a grotesque interpretation of Disney World, with shades of Miami and Las Vegas. The front is marked with two-story arched windows and fake columns. Topping it off on the third story is a pyramid-type cupola. The entire exterior is painted the kind of yellow that makes your eyes wobble. No nuance. The original building was brick. The new owner painted over the brick. There’s no accounting for taste, but this is a business that from the start was not welcome in Manchester. The owner must have known that. Instead of working with nearby residents on plans that might have calmed them, he erected this horrible neon monument to retail sex at one of the town’s gateways.

Susan Plese, “VIP: A Garish Monument to Retail Sex,” Hartford Courant, p. B4 (Aug. 5, 2006). Another resident expressed similar offense, noting that “[VIP] sticks out like a sore thumb. I thought they’d be a better neighbor instead of painting it banana yellow.” Regine Labossiere, “Adult-Business Rules Amended; Regulations Now Define Them, Limit Locations to Industrial Zones,” Hartford Courant, p. B3 (September 7, 2006).

Manchester’s experience serves to further underscore Berlin’s well-founded concern that a VIP within 250 feet of a residential neighborhood will decrease property values and negatively impact the quality of life for neighborhood residents…

In many cases, these ordinances require that SOBs be located substantially further from residentially zoned land than Berlin requires. For example, whereas Berlin requires a 250 foot set-back between an SOB and residential property, Bristol, Griswold, Hartford, Meriden, West Hartford, and Wethersfield require a 1,000 foot set-back…

In many cases, cities and towns apply their set-back requirements not only to SOBs with on-site entertainment, but also to adult bookstores such as VIP where all merchandise is taken off-site. See, e.g., Hartford Municipal Code, §§ 35-2 and 35-921 (1000 foot set-back required from residential zone); Code of the City of Meriden, §§ 213-7.B and 213-20.B(2)(p) (1000 foot set-back); Code of the Town of Griswold, §§ 117-2 and 117-4 (1000 foot set-back)…

In sum, it is vitally important that Berlin’s SOB ordinance be upheld. Not only is the ordinance fully consistent with the First Amendment, but upholding it ensures that cities and towns statewide will continue to be able to enforce their own SOB ordinances and thereby protect the health, safety and general welfare of their citizens and the quality of life in communities statewide. As the Supreme Court has emphasized, a municipality’s “interest in attempting to preserve the quality of urban life is one that must be accorded high respect.” City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 50 (1986), quoting Young v. American Mini Theatres, Inc., 427 U.S. 50, 71 (1976)(plurality opinion).

See also:

Blog: No V.I.P. in Berlin, CT

Secondary Effects Across America: 1977-1999
Indianapolis: From 1978-82, crime increases in the study areas were 23 percent higher than the control areas (46 percent higher than the city as a whole). Sex-related crimes in the study areas increased more than 20 percent over the control areas. Residential locations in the study areas had a 56 percent greater crime increase than commercial study areas. Sex-related crimes were four times more common in residential study areas than commercial study areas with sexually oriented businesses.

US Fifth Circuit Appeals Court Affirms that Evidence of Secondary Effects of “Off-Site Consumption” Adult Enterprises Is Sufficient To Justify Zoning
Kennedale’s ordinances purport to protect against harmful
secondary effects. The Indianapolis and Oklahoma City studies
support the belief that off-site sexually oriented businesses cause
harmful secondary effects to the surrounding area in the form of
decreased property value. So long as they are not relying on
shoddy data or reasoning, we afford substantial deference to cities
with regards to the ordinances they enact. See Alameda Books, 535
U.S. at 451 (Kennedy, J., concurring) (noting that “a city must
have latitude to experiment” and “courts should not be in the
business of second-guessing fact-bound empirical assessments of
city planners”). The Indianapolis survey, in particular, was
drafted by experts, pretested, and administered to a large,
national pool of respondents. It is not “shoddy.” We therefore
find that Kennedale has produced evidence that it could have
reasonably believed was relevant, and thus could have properly
relied upon. The ordinances are narrowly tailored to advance a
substantial governmental interest…

Porn Merchant Implies: Host Community Put at Risk So Outsiders Might Enjoy Themselves
“We’ll be helping the community, maybe not Berlin, but surrounding
communities,” [VIP general manager Gary] Porter said jokingly, “community service is what we’re
all about.”

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