IN COURT OF APPEALS
Gordon K. Wheeler, Sr., et al.,
Filed October 10, 2006
Morrison County District Court
File No.: C8-03-1358
Tigue, Randall Tigue Law Office, P.A.,
Paul D. Reuvers, Pamela J. Whitmore, Iverson Reuvers, 9321 Ensign Avenue South, Bloomington, MN 55438 (for respondents)
Considered and decided by Kalitowski, Presiding Judge; Randall, Judge; and Peterson, Judge.
S Y L L A B U S
A municipality that substitutes or amends an existing ordinance regulating adult establishments does not bear a heightened burden to produce evidence showing that the ordinance serves a substantial government interest.
O P I N I O N
Appellants, as owners of an adult business, argue: (a) their adult business was open before the enactment of the county ordinance that provided the basis for enjoining its business, so the business is entitled to lawful-nonconforming status under the ordinance; and (b) the ordinance under which the business was enjoined is unconstitutional under the First Amendment because it enacted content-based regulation of constitutionally protected speech, failed to serve a substantial governmental interest, and did not allow for reasonable alternative avenues of communication.
Appellants further argue that because they sufficiently challenged the county’s evidence of secondary adverse effects of adult-use businesses, the burden shifted to the county to produce further evidence showing that its existing regulation was inadequate to address those effects. Finally, appellants argue that the record does not support the county’s purported basis for the ordinance.
Respondents initially argue that appellants cannot challenge the constitutionality of the ordinance. We reject respondent’s argument that the issue of constitutionality of the ordinance is not ripe for review by this court. We will approach it on the merits.
The district court did not err when it granted summary judgment for the county and upheld the constitutionality of the ordinance. The district court did not err when it permanently enjoined operation of the adult-use business. The district court properly granted summary judgment when it determined that the adult-use business did not acquire status as a legal-nonconforming use under the ordinance.
or about October 17, 2003, appellants purchased a piece of property within
On October 21, 2003, before the moratorium expired, the county amended the existing AUB ordinance (2003 AUB ordinance) and passed another ordinance that regulated sexually oriented businesses (SOB ordinance). These actions did not become effective until November 3, 2003. The differences between the 2003 AUB ordinance and the 1995 AUB ordinance included an increase in set-back requirements from businesses licensed to sell alcoholic beverages from 200 feet to 1,320 feet, imposing a set-back requirement from “any dwelling unit” rather than from “residential districts, and language restricting AUBs from operating within shore land commercial districts. The county cited concerns over the secondary effects of AUBs as the primary rationale for the changes made. This conclusion was drawn after considering a series of studies that allegedly evidenced an increase in certain crimes, a decrease in property values, and an increase in transmission of sexually transmitted diseases in geographical areas surrounding AUBs.
The county filed a complaint with the district court on October 30, 2003, alleging that LFSP violated the county’s moratorium on opening or expanding AUBs within the county; that LFSP was in violation of the set-back requirements of the 2003 AUB ordinance; or, in the alternative, that LFSP was in violation of other health and food-and-beverage ordinances. With regard to the health ordinance, the county alleged, and LFSP acknowledged, that LFSP did not have a properly functioning septic system. The complaint sought a permanent injunction from the district court to enjoin LFSP from operating as an AUB.
Appellants challenged the request for a permanent injunction based on grounds that they were not in violation of the 1995 zoning ordinance, which was in effect at the time the business opened; that the violation of the health ordinance did not disqualify LFSP from being exempted from subsequent ordinances; and that the interim moratorium was unconstitutional as a complete ban against protected speech. Appellants claim that the 2003 AUB ordinance, even if applicable to appellants’ business, was not adequately supported by the findings of the county and would have the effect of suppressing or substantially reducing access to constitutionally protected speech. Thus, appellants claimed a violation of their rights under the First and Fourteenth Amendments to the United States Constitution. Appellants also filed a counterclaim under 42 U.S.C. § 1983 to redress the county’s alleged deprivation of their constitutional rights.
The district court issued a temporary injunction that prohibited appellants from using their property for “any purpose until such time as the property is equipped with a septic system appropriate for the intended use”, dismissed the food-and-beverage compliance complaint, and reserved the issues involving the moratorium and newly enacted ordinance. The parties later stipulated to a plan for removing septic materials. The stipulation was approved by the district court and provided that the appellant would be permanently enjoined from operating the business until the county approved a septic-materials removal plan. This stipulation also stated that “the [county] will consider the septic issue separate from the adult use issue.”
Both parties moved for summary judgment. The district court issued a decision on the motions and ruled that the moratorium was an unconstitutional based speech regulation “that failed to provide any alternative avenue for expression, with respect to either location … or content.” The district court also determined that LFSP did not have grandfather rights under the 1995 zoning ordinance because it was not a lawful-nonconforming use at the time the 2003 AUB ordinance went into effect. The court deferred ruling on the constitutionality of the 2003 AUB ordinance and the SOB ordinance and allowed the parties to further develop the issues at an evidentiary hearing.
district court convened an evidentiary hearing for the purposes of determining
whether the county provided adequate evidence to support its enactment of the
2003 AUB ordinance and whether the 2003 AUB ordinance provided sufficient
alternative locations for AUBs in
the district court err in determining that LFSP did not attain
lawful-nonconforming use rights before the enactment of
2. Is appellants’ challenge to the constitutionality of the 2003 AUD ordinance ripe for review?
3. Did the district court properly
A. Does a government have an increased evidentiary burden when it seeks to substitute or amend an existing regulation that has the expressed purpose of countering adverse secondary effects purportedly caused by AUBs?
B. Did appellants succeed in casting direct doubt on the county’s evidence or factual findings that support the 2003 AUB ordinance?
C. Did the 2003 AUB ordinance provide reasonable alternative avenues of communication?
I. Grandfather Rights
The first issue is whether the LFSP properly established itself as a business and was eligible to receive lawful-nonconforming-use rights (grandfather rights) under the county’s amended AUB ordinance. If LFSP was a legally established business before the amendment of the AUB ordinance, regardless of issues with the septic system, LFSP may apply for a certificate and be allowed to exist under the amended AUB ordinance as a “grandfathered-in” business. If not, LFSP is subject to the laws in existence at whatever time it became (or becomes) a lawful, established business.
of state statutes and existing local zoning ordinances are questions of law
that this court reviews de novo.” Buss
v. Johnson, 624 N.W.2d 781, 784 (
are reviewed to determine whether the municipal body acted arbitrarily, capriciously, or unreasonably, and whether the evidence reasonably supports the decision made. See Frank’s Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 608 (
residential zoning ordinance may constitutionally prohibit the creation of uses
which are nonconforming, but existing nonconforming uses must either be
permitted to remain or be eliminated by use of eminent domain”. County of Freeborn v. Claussen, 295 Minn.
96, 99, 203 N.W.2d 323, 325 (1972), (citing Hawkins v. Talbot, 248 Minn. 549, 80 N.W.2d 863
(1957)). The supreme court
later qualified this holding by determining that “uses
lawfully existing at the time of an adverse zoning change may continue to exist
until they are removed or otherwise discontinued.” Hooper v. City of
parties rely on Hooper v. St. Paulas decisive of whether LFSP was a
lawful-nonconforming use. In Hooper, the Minnesota Supreme Court
determined that the use of the property in question as a carriage house was a
valid nonconforming use although the owners had not obtained proper building
permits for alterations under the former regulatory scheme.
Appellants assert that the rationale utilized in Hooper is directly applicable here and that their use of the property under the 1995 AUB ordinance, the zoning code in effect when LFSP opened for business, was proper when the use was established. Appellants recognize that the county has the right to enforce the applicable ordinances and regulations regarding the septic system, but assert that LFSP was a lawful-conforming use under the 1995 AUB ordinance and that the county’s attempted enforcement actions are wholly separate from the AUB ordinance passed by the county after the establishment of LFSP. As such, appellants contend they have a right to be considered a lawful-nonconforming use.
The county determined that LFSP did not qualify as a lawful-nonconforming use because it had not sought approval of a plan to rectify pre-existing septic issues. The county contends that without abiding by all county ordinances, LFSP could not have become a legal entity, much less a lawful-nonconforming use. The county argues that LFSP, unlike the carriage house in Hooper, was never a lawful use of the property due to the septic issues, and as such cannot seek protection under the guise of a lawful-nonconforming use.
The district court’s October 15, 2004 order determined that the septic issue is related to land-use planning, and thus distinguished the rationale of Hooper and the cases it relied on. To support this decision, the court noted Morrison County Land Use Control Ordinance sections: (1) 101 (regulating “the location, size, use, and arrangement of lots and buildings in and for the unincorporated portions of Morrison County, Minnesota dividing the county into zoning districts, and providing sewage control and land subdivision regulation for the purpose of promoting health, safety, morals, and general welfare of Morrison County”); (2) 304.6 (discussing on-site sewage treatment systems); (3) 503.1 (requiring land-use permits for “the installation and/or alteration of sewage-treatment systems”); (4) 503.3 (requiring work authorized by a sewer permit to be completed within six months); (5) 703.1 (regulating on-site sewage-treatment-system setbacks in shoreland areas); (6) 909.4 (discussing nonconforming sewage-treatment systems); and (7) 1502.5(e) (providing criteria for evaluating planned-unit developments).
district court was correct to point out
Unlike the facts in Hooper, when the carriage house in question had existed in its location for at least 60 years and been in conformance with local zoning regulations before the regulation change, LFSP attempted to open its doors just days before the enactment of a regulation change at a location that had not previously been in conformance with septic regulations. While appellants may have called a company regarding the regular pumping of the septic tanks, the county was not consulted regarding this proposed solution. The county suspended the food and beverage licenses of the previous occupant of this location for failure to comply with applicable septic regulations. Without these licenses, the county restricted the previous occupants from operating their business at this location to protect the health of county citizens and protect the natural resources surrounding the facility. Until the previous owners vacated the location, the county remained in continuous contact with them to assure that the septic tanks were being pumped before every event hosted at this location.
This vigilance toward the septic problems at the location in question shows the county’s considerable interest in how this land is used and retaining its ability to regulate such use. If properties were able to avoid this valid form of land-use regulation, we would effectively strip the county of its ability to protect its citizens from public nuisances or unsafe or unsanitary business practices.
Appellants also note a stipulation in the record under which the parties agreed to consider the septic issue separate from the adult-use issue and agreed to a permanent injunction precluding operation of LFSP until appellants comply with the relevant septic requirements. Appellants claim that this stipulation and the injunction agreed to underscore the county’s other means of enforcement and undercuts the argument that LFSP cannot be a lawful-nonconforming use because of the septic issues. We disagree with appellant’s restrictive interpretation of the stipulation. The stipulation simply shows that there are two distinct arguments in this case and underscores the duty that LFSP had to obtain permission from the county to correct the problems within the septic system. Had LFSP approached the county before opening for business, the administrative zoning process would have been the appropriate forum for this issue. Because LFSP failed to seek the county’s approval, the county was forced to seek an injunction of LFSP’s noncomplying use of the land.
II. Permanent Injunction
examining the history of the present controversy as set out in the record, we
conclude that when
this record, we reject
III. Constitutional Challenge
The district court at summary
judgment upheld the constitutionality of the 2003 Morrison County AUB
ordinance. Summary judgment is
appropriate when no genuine issues of material fact exist and a party is
entitled to judgment as a matter of law.
City of Elko v. Abed, 677
N.W.2d 455, 460 (
United States Supreme Court has spoken on ordinances that regulate adult-entertainment
businesses and set forth a test to determine if a local governmental unit has
unfairly suppressed or denied access to constitutionally protected speech. In Renton
v. Playtime Theatres, Inc., 475
City of Los Angeles v. Alameda Books,
allege that the county’s 2003 AUB ordinance is unconstitutional because it has
the effect of suppressing or greatly denying access to constitutionally
protected speech. Appellants do not
argue that the 2003 AUB ordinance bans AUBs altogether. Thus, the first step of the Supreme Court’s
test is not in question. The regulation
only limits the location of AUBs and as such qualifies as a time, place, and
manner restriction of speech, which has been upheld by the Supreme Court. See
Young v. American Mini Theatres, Inc., 427
specifically assert that because
We must determine: (1) whether there is an increased evidentiary burden on a government when it seeks to substitute or amend an existing regulation that has the expressed purpose of countering adverse secondary effects purportedly caused by AUBs; (2) whether appellants have succeeded in casting direct doubt on the county’s evidence or factual findings that support the 2003 AUB ordinance; and (3) whether the 2003 AUB ordinance provides reasonable alternative avenues of communication.
Does a government have an increased evidentiary burden when it seeks to substitute or amend an existing regulation that has the expressed purpose of countering adverse secondary effects purportedly caused by AUBs?
Supreme Court in Alameda Books also
considered an analogous argument from adult businesses affected by a city
ordinance. Alameda Books noted that alternative conclusions on the same
evidence may be possible, but that requiring a government to counter
alternative conclusions would force communities to show not only that the
evidence supports a governmental interest, but also that the evidence does not
provide support for any other approach to serve that interest. Alameda
Books, Inc., 535
argue that a different standard should apply in amending an ordinance and that
the county must be able to show that its existing regulation proved inadequate
to reduce the adverse secondary effects of the AUBs existing within the
county. While appellants’ argument is
understood, it leads to the necessary conclusion that communities that have
already attempted to deal with adverse secondary effects through ordinances
must compile information showing that amendment of the ordinances is
needed. This argument directly opposes
the holding in
Have appellants succeeded in casting direct doubt on the county’s evidence or factual findings that support the 2003 AUB ordinance?
is also necessary separately to examine the adequacy of the underlying evidence
used by the county in justifying the 2003 AUB ordinance. In
county argues that the 2003 AUB ordinance is necessary to counter continued
adverse secondary effects of AUBs in
note Peek-A-Boo Lounge of Bradenton, Inc.
v. Manatee County, Fla., 337 F.3d 1251 (11th Cir. 2003), which provides an
excellent example of what constitutes direct doubt and what may shift the
evidentiary burden back to the governmental unit. Therein, the AUB cited incident rates showing
lower crime near the AUB than near surrounding businesses, increases in
property values near the AUB, civic awards given to the AUB for contributions
to the community, and numerous health and safety inspection records.
allege that the county relied on improper evidence in its determination that
AUBs provided the impetus for adverse secondary effects. The county relied upon studies from
The evidence relied upon by the county included, but is not limited to: a paragraph on a study regarding impacts on nearby properties in St. Paul, Minnesota, among other cities; the Report of the Attorney General’s Working Group on the Regulation of Sexually Oriented Business, Hubert H. Humphrey, III, Attorney General (June 6, 1989), which provided research and guidance to municipalities about the regulation of sexually oriented businesses within Minnesota; and studies from Washington, Illinois, Texas, Virginia, and California that discuss the effects of sexually oriented businesses on local communities.
We understand appellants’ argument that comparisons, even when dressed up, often come down to “apples versus oranges.” However, district courts are allowed to weigh the credibility and determine the weight to be given the evidence that each party offers. The evidence proffered to support appellants’ argument are studies and reports that simply reach a different conclusion than the studies relied on by the county.
evidence was also used in another case cited by appellants, Daytona Grand, Inc., v. City of Daytona
Beach, Fla., 410 F. Supp. 2d 1173, 1188 (M.D. Fla. 2006) which held a
county’s alcohol and public nudity statute unconstitutional based on
plaintiffs’ expert testimony discrediting the county’s anecdotal evidence and “highly
unreliable data” and plaintiffs’ own local studies showing no adverse secondary
effects. The chart prepared by
appellants appears to be a comparison with other establishments in the county
that serve alcohol. Here, appellants
failed to present any additional studies regarding adverse secondary effects or
the lack thereof within
Did the 2003 AUB ordinance provide reasonable alternative avenues of communication?
Appellants assert that because only
approximately five percent of all land in
respondents must fend for themselves in the real estate market, on an equal
footing with other prospective purchasers and lessees, does not give rise to a
First Amendment violation. And although we have cautioned against the enactment
of zoning regulations that have “the effect of suppressing, or greatly
restricting access to, lawful speech,” American Mini Theatres, 427 U.S.,
at 71, n. 35, 96 S. Ct. at 2453 (plurality opinion), we have never suggested
that the First Amendment compels the Government to ensure that adult theaters,
or any other kinds of speech-related businesses for that matter, will be able
to obtain sites at bargain prices. See id., at 78, 96
make much of the small ratio of land available for use by an AUB under the 2003
AUB ordinance to the total land in area of in
D E C I S I O N
LFSP was not a legal nonconforming use at the time it opened its doors for business. Sewer and septic issues are recognized as an element of land-use planning. Appellants purposefully attempted to disregard the county’s inherent authority to regulate land use and are not entitled to lawful-nonconforming-use status
claims brought before this court were not chosen by appellants. Because the county initiated these claims and
chose the issues on which it wanted to base its argument, we reject the
county’s objection to the judiciability of certain issues. The constitutionality of
a government unit is passing ordinances or amending them in the area of health,
human services, police protection or public safety, municipal bodies are
historically accorded wide latitude in the evidence they rely on in making a
decision. Counties retain discretion to use studies from other sources to justify their actions.
standard used to challenge the evidence offered by a municipal body remains the
same. Appellants failed to raise direct
doubt regarding the studies
is commercial land in
The Morrison County 2003 AUB ordinance satisfies all prongs of the constitutional tests.
 The county phrases its argument variously in
terms of jurisdiction, standing, and ripeness.