city planning commision and porn shop...

Last night I attended a planning commision's hearing on CUP (conditional use permit) hearing for a PORN SHOP. (HOW DARE THEY!!!)

I would like to get an opinion on how I did from the lawyers on this board.

local ordinance is poorly written with things like "if the adult shop restricts its x-rated item to 20% or less of the total retail space, it must be treated as a regular retail and must allow for condition use permit. However, if the esstablishment were to negatively impact the city, the city can deny the conditional use permit..."

Lots of us turned out to voice our opposition. The porn shop sent in their Sr. VP for representation and ... (so big deal that the shop has more than 30 shops scattered in So. Calif)

quick summary:

The CUP application states that the Porn shop will only use 19.8% of floor space for X-rated item thus it should be treated as a regular retail space and should be granted the CUP.

During some questioning by the board member, the Sr. VP contradicted the CUP application and within his answering the questions by stating "yes less than 20% will be X-rated and that anyone under 18 will not be allowed into the restricted area" later he said, "the shop will not allow anyone under 18 to enter the shop."

when it came to public comments lots of emotional items came up but nothing legal except the following:

two real-estate agent, whom courts would view as expert, claimed that the shop will have an adverse effect on the valuation of the residential homes near and next to the proposed shop.

A board member for the school district, whom courts would view as an expert, claimed that the shop is right next to the designated walkway for the elementary school children for their commute to /from school. And such establishment will have a negative impression/impact on the children.

Others only gave single reason within the negative impact. bit disaapointed.

So I got up and pointed out few things:

1. The ordinance is poorly written with nebulous definition that I could probably have the ordinance delcared null and void. However the intent of the ordinance is very clear. I would ask for a moritorium (5 years) while the city re-write the ordinance to make it clear, precise, and enforceable.

2. the 80/20% rule and treating as regular retail has no prescedence set. Declaration of treating as regular retail is arbitrary and meaningless without any reasoning thus it should be declared null and void. Common sense would dictate that 20% X-rated shop is still very different than a local grocery store.

3. The Sr VP made a contradictory statement from the CUP application thus they need to either withdraw or refile the CUP application with correct/updated information and truthfully.

4. The SR. VP's comment of "no one under 18 can enter the establisment would indicate that the 100% of the store will be pornographic" thus it can not use the ordinance to have the CUP granted under the 80/20% rule.

5. The adverse effect on city clause will be applicable thus CUP can not be granted.
A. Loss of valuation of residential homes near and next to the proposed shop
B. Adverse effect on children commuting to/from school.
C. Increase in traffic where traffic already is a problem
D. Lack of adequate parking space.
E. Lack of adequate explanation of who the customers are and of where they come from and the negative impact of influx of the customers.
F. Substantiated report of increase in crime rate near a porn shop.

The city attorney was smug the whole time saying that it should be approved (What is wrong with the girl?) because it met the 80/20% rule and should be treated like any other retail. To which I retorted, "well Mr. Jules (the Sr VP) stressed to the commitee that the shop will not allow anyone under 18 to enter their establishment. And if you say it should be treated like any other retail store, then I can not allow my nephew to enter a grocery store to pick up a carton of milk since he is under 18. your line of argument doesn't work!"

Anyway, I hope the porn shop will not try to resubmit an CUP application with assumption that my city is too lame with its ordinance and my city attorney is a twit. I also warned the Sr VP and the man with him (I think he was their counsel) that all I needed was to have just one of my points to stick and that will be enough to deny the CUP. And if they do try, I will gather a team of attorneys to work on the frame work of my argument.

Since I'm not a lawyer, I don't know how my line of argument would fare in court of law. So what do I need to fix so that I can be better prepared if the porn shop decides to refile for CUP?

GRRR!!! Really I'm generally a very nice person but lately, I been having these butt head sessions. And the minutes from the meeting looked like it was posted when I got home and it said "TENTATIVELY APPROVED" :mad: :mad: I couldn't sleep last night. This morning I went to the city hall for explanation and my leagal recourse to change the vote to "DENIED". Appearently, the board did deny and it shows up in the minute notes taken by the secretary in her handwriting. Am I safe for now?? They said that the minutes will not appear for another three weeks. So why was the minutes there last night? Should I worry?

Thank you,
Shawn

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Originally Posted by smilingcat

Last night I attended a planning commision's hearing on CUP (conditional use permit) hearing for a PORN SHOP. (HOW DARE THEY!!!)

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How dare they... what? :confused:

I'm somewhat reminded of the time that a local porn chain moved into the "good" side of town. Everybody was up in arms complaining that this shop was drawing in customers from the "bad" side of town and thereby endangering the local neighborhood.

The shop produced credit card sales records that showed that about 75% of their purchases were from customers that actually lived on the "good" side of town. The bottom line is - if there is a market of people willing to pay for something, someone will be there to sell it to them. Doesn't matter whether it's sex industry, illegal drugs, etc.

I'm not a lawyer, but I am employed with the City of Merced Planning Department, so I feel compelled to respond. I have to say, it apalls me that your city would even consider this land use so close to residences and especially schools, but as I often tell people, each City does things differently than the next.

In Merced, we only allow "adult entertainment" businesses in industrial zones and no closer than 1,000 feet from residences, school, churches, or other adult entertainment establishments (link to our Adult Entertainment Ordinance). However, we are still most likely a much smaller town than perhaps yours is, and our ordinance was adopted very quickly after our very first adult-oriented retail shop was permitted to locate in the downtown area. We allowed the store because we had NO ordinance in place to prohibit it, and therefore, we had no legal grounds to deny their business license. Now, we have the backing of our Ordinance to say "no" outright, and because of that, we probably will only have that one store, as long as it's in business. If it folds, that's it.

Similarly, in your City's defense, they DO have an ordinance in place and are bound by it. If the Ordinance says that an establishment can have up to 20%, then well -- hate to say it, but the City obviously thinks that 19.8% is still OK. However, the store chain can be held to that percentage by the use of the conditions of approval of the CUP. Legal conditions placed on a business can be a valuable tool and can be used to shut them down if they violate them. A moritorium can be put in place, yes -- but they almost have to allow this one if the chain states that it will meet the guidelines of the Ordinance the way it is written today, unless a legal finding can be made otherwise.

And -- Dianyla is right. Porn has a market amongst all income levels, races, and social statuses, and there is such a thing as free enterprise, however distasteful some may find it (or not). However, cities do have the power, through zoning laws, to limit or "corral" those types of businesses to certain areas of its jurisdiction.

The internet, however, is a completely different animal.....

Good luck in accomplishing what you want to get done in your city. Changing a commission's mind and a City's well-established laws can be tough. Sounds like you may have made an impression, but it unfortunately may not have been enough to change this one.

Keep us posted.....;)
~BikeMomma

I would consult with a local attorney. I think your argument is VERY rational...but rational does not always win in the eyes of the law. You may also try to lobby the property owner to not lease space to them.

Keep in mind that although the local ordinance is a start, the 80/20 rule only means that they'll sell "adult clothing" and "unrated" items in the 80% area. I'm not sure what is defined as "x-rated retail goods", but my guess is that a good portion of what is sold at a porn shop would technically not be categorized as "x-rated"....since there's no "rating system" that I'm aware of for anything other than movies...is there?

So, I'm not certain what protection the ordinance provides.

Here, any ordinance with any ambiguity has been deemed "null and void" by enforcement agencies. Here's an example from this week's news:

EVANSVILLE, Ind. - A family can allow their chickens to roam their backyard, despite complaints from a neighbor, because a new city ordinance is unclear, a city board ruled.

Neil and Melissa Troost allow their six hens to run around their fenced backyard during the day, but put the birds in a coop at night.

They contend that complies with an Evansville city ordinance that requires chickens be "kept" in a coop at least 50 feet from neighbors.

Their next-door neighbor, Bill Bryant, complained to the Animal Control and Education Commission Board that the birds are smelly and obnoxious.

"I just want to be able to go out with family or friends in my backyard to grill a hamburger without embarrassment," he said.

Board members said they intended the ordinance to restrict the hens at all times to an area at least 50 feet removed from a neighboring property.

But board president Marlin Beck said, "the ordinance does not say that, and you cannot enforce assumptions."
Board member Scott Thompson encouraged the Troosts to keep their chickens confined to a smaller area. He said the ordinance needed to be "tightened and polished."

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Originally Posted by smilingcat

4. The SR. VP's comment of "no one under 18 can enter the establisment would indicate that the 100% of the store will be pornographic" thus it can not use the ordinance to have the CUP granted under the 80/20% rule.

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I don't think his statement necessarily indicates that at all. There are lots of "adult" retails items that cannot in any way be called pornographic but that you would not want children examining and playing with. Feather boas and French maid outfits, mainstream sex manuals or "art" nude photo books, bottles of flavored lube, funny t-shirts, many adult themed comic books, non-explicit vibrators, body massage oils, sexy lingerie....none of this is "porn" but most intelligent store managers would not want kids rummaging through such merchandise. It makes sense to keep children out of the store in general.

This thread is pretty politically/socially charged and controversial, and perhaps does not really belong on TE for that reason.

Just wanted to say good luck. We fought our city on a zoning/conditional use permit issue last fall and it was so stressful I lost about eight pounds (and we lost; it was and still is terrible). Our friends often ask what is going on with the situation and I am instantly sick to my stomach.

Unfortunately in cases like this, it's often a behind the scenes done deal anyway. Yuck.

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Originally Posted by northstar

We fought our city on a zoning/conditional use permit issue last fall and it was so stressful I lost about eight pounds (and we lost; it was and still is terrible).

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Yea...I understand NS. It's hard to be an employee in these types of situations, because sometimes we have conflicting personal opinions to what we're told by the Ordinances to enforce. We DO feel for the applicants in these cases, but as employees, we have to separate ourselves. Sucks sometimes when you really want to help someone out.

I dunno, Lise. This topic is pretty intriguing, as is life. Plus it gives our SmilingCat a place to vent, and I'm all for that. :)

Take care,
Kim

I get most of my stuff through the mail anyway:D

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Originally Posted by zencentury

I get most of my stuff through the mail anyway:D

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Heh. Or online. Who even goes to brick & mortar stores nowadays? :rolleyes:

Hi bikeMomma,

Yes, the replies have been somewhat suprising and quite intriguing to say the least. It also helps me to gauge where I stand. You see, I grew up in Salt Lake City then another year in Kansas City. Places where blue laws are still on the books and social conservatism is what people think of when SLC or KS is brought up.

My post wasn't really meant to be a venting but rather I wanted to make argument complete, sound and not leave myself open for attack from the other side.

Latest on this front: The commision has denied application. The owner of the building has more or less given up on this tenant. I am still not sure about the adult entertainment shop owners' disposition on the matter.

Now the matter goes to the city council to formalize the whole thing.

so I have to wait and see, meanwhile I want to make my argument complete just in case.

always be prepared,
Smilingcat,

Guess I grew up with mid-western and southern social conservative values - Blue law counties, etc.

I remember my culture shock walking out the front door of the Seattle Art museum and seeing XXX theaters across the street. I didn't notice on the way in because I was focusing on the museum, and was on the museum side of the street. My thought process was how to "they" allow porn shops, XXX theaters across the street from a great museum?

I am not a lawyer, but a Planning Director and elected official (in different cities) and conditional use permits have given me F I T S in both capacities. Here in Utah, the courts have ruled and the law now states that conditional uses MUST be approved if reasonable conditions can be imposed that would substantially mitigate deterimental effects. Pretty much they have to be approved as most deterimental effects can be substantially mitigated. If I were serving in my current capacities in your community and the CA is the same as UT law, I would carefully review all conditional uses, assuming they are to be approved and cull out the ones that wouldn't fit in the zone if approved. If reasonable conditions cannot be imposed, get rid of the use in that particular zone. Better yet, make any conditional uses being kept permitted and state the conditions in the zoning ordinance.

Now, that being said, the use you are fighting is a little different animal. As I understand the law, cities must provide a location for that type of use. Most cities put it in an industrial/manufacturing area, away from residential uses. If I were in your city, I would make an application asap to amend the zoning ordinance with regard to where these types of businesses could be located. At least here in Utah, if the application is submitted and changes are made, anyone asking for something that could be affected by your application's outcome could or would be forced to comply with the new law, even if the proposed changes haven't been adopted yet.

I can go on and on, especially with the experiences I have had, but I won't :o My 2 cents.

We have two porn shops in one of the local cities...
One is a sleezy "i think I need a shower after visiting it" shop with a creepy little dude sitting at the back, and one of those disgusting "viewing rooms"... *Rave shuggers* can only imagine how yuck it would be in there!...

The other shop is run by two women and from the front looks like an upmarket lingerie shop... georgous corsetts, bras, knickers...
down the back, behind the front counter, are the toys, no suspect smeared glass cabinets, no scungy lighting, no rows and rows of sleezy mags called "Big Ones" or what ever those things are called...

I guess my post is... (although I know this is a non-issue by the sound of it now for you, Cat, because no permission has been given)...

I guess my post is saying that there's porn and there's porn... and I would be against "Peaches'n'Cream" setting up in my neighbourhood... but "JennyOs" is tasteful and a shop you could even go into with your kids as long as you stayed in front of the counter (which, I am guessing, is why they have set it up that way) and I would have no prob with the second shop opening near me.

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Originally Posted by RoadRaven

The other shop is run by two women and from the front looks like an upmarket lingerie shop... georgous corsetts, bras, knickers...
down the back, behind the front counter, are the toys, no suspect smeared glass cabinets, no scungy lighting, no rows and rows of sleezy mags called "Big Ones" or what ever those things are called...

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Dang - I want to go to this shop. Sounds FUN! Personally - I love toys and love shopping for toys. Both with a few g/f's just for laughs and with the DH for ... inspiration ;)

It is a lot of fun, Lady

And thats how that kind've thing should be... not nasty sleezy blah!!!

:D