city planning commision and porn shop...

[BikeMomma]

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

[Mr. Bloom]

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."