Jurisdictional Statement — Renton v. Playtime Theatres, Inc.

84-1360 =

No.

CLE Rr a

> . e

IN THE tai a cca

Supreme Court of the United States

OCTOBER TERM, 1984

THE CITY OF RENTON, et al.,

. Appellants,

PLAYTIME THEATRES, INC.,

a Washington corporation, et al.,

Appellees.

On Appeal from the United States Court of Appeals

for the Ninth Circuit

APPENDIX TO

JURISDICTIONAL STATEMENT

E. BARRETT PRETTYMAN, JR.*

JAMES G. MIDDLEBROOKS

HoGAN & HARTSON

815 Connecticut Avenue, N.W.

Washington, D.C. 20006

(202) 331-4685

LAWRENCE J. WARREN

DANIEL KELLOGG

MARK E. BARBER

ZANETTA L. FONTES

WARREN & KELLOGG, P.S.

100 South Second Street

Renton, Washington 98057

(206) 255-8678

* Counsel of Record Counsel for Appellants

ee — —

WILSON - EPES PRINTING Co.. INC. - 789-0096 - WASHINGTON. D.C. 20001

TABLE OF CONTENTS

Appendix A

Decision of United States Court of Appeals for

Ninth Circuit, in Playtime Theaters, Inc. v. City

of Renton, 748 F.2d 527 (9th Cir. 1984), de-

cided November 28, 1984...........................-.......----

Appendix B

Decision of United States District Court for the

Western District of Washington, in Playtime

Theatres, Inc. v. City of Renton, No. C82-59M,

decided February 18, 1983

Appendix C

Judgment of United States District Court for the

Western District of Washington, in Playtime

Theatres, Inc. v. City of Renton, No. C82-59M,

entered February 18, 1983

Appendix D

Order of United States District Court for the

Western District of Washington, in Playtime

Theatres, Inc. v. City of Renton, No. C82-59M,

entered April 29, 1983, denying Plaintiff’s Mo-

tions to Alter and Amend and For Stay Pending

| ee Te See ee ae

Appendix E

Order of United States District Court for the

Western District of Washington, in Playtime

Theatres, Inc. v. City of Renton, No. C82-59M,

entered January 13, 1983, denying Defendants’

Motions to Dismiss and For Summary Judgment

and Granting Preliminary Injunction Pendente

Lite

Page

la

23a

33a

34a

ii

TABLE OF CONTENTS—Continued

Appendix F

Report and Recommendation of Hon. Philip K.

Sweigert, Magistrate, United States District

Court for the Western District of Washington,

in Playtime Theatres, Inc. v. City of Renton,

No. C82-59M, entered November 5, 1982 ...........

Appendix G

Order of United States District Court for the

Western District of Washington, in Playtime

Theatres, Inc. v. City of Renton, No. C82-59M,

entered February 23, 1982, adopting the Febru-

ary 3, 1982 Report and Recommendation of

United States Magistrate Philip K. Sweigert __...

Appendix H

Judgment of United States District Court for the

Western District of Washington, in Playtime

Theatres, Inc. v. City of Renton, No. C82-59M,

entered February 23, 1982, denying Plaintiffs’

Motion for a Temporary Restraining Order _....

Appendix I

Report and Recommendation of Hon. Philip K.

Sweigert, Magistrate, United States District

Court for the Western District of Washington,

in Playtime Theatres, Inc. v. City of Renton,

No. C82-59M, entered February 3, 1982...

Appendix J

Notice of Appeal, Playtime Theatres, Inc. y. City

of Renton, 748 F.2d 527 (9th Cir. 1984), filed

4, A SRO Em

Appendix K

Amended and Supplemental Complaint for Declar-

atory Judgment and Preliminary and Permanent

Injunction, in Playtime Theatres, Inc. v. City of

Renton, Me. CUBRGGTE ...2c.-<cnceecccrecessneemeeeenenn

Page

37a

46a

48a

49a

22s

iii

TABLE OF CONTENTS—Continued

Appendix L Page

Renton, Washington, Ordinance 3526 (April 13,

EE 78a

Appendix M

EEE SE ee 8la

Appendix N

Renton, —-! * Ordinance 3637 (June 14,

aniiee

Detroit, Michigan, Ordinance 742-G (Nov. 2,

1972) . aaa ee :. : 99a

Appendix P

Detroit, Michigan, Ordinance 743-G (Nov. 2,

Appendix Q

Detroit, Michigan, Ordinance 891-G (May 2,

ES 118a

Appendix R

Seattle, Washington, Ordinance No. 105565 (May

ee ES a 126a

Appendix S$

Seattle, Washington, Ordinance No. 105584 (June

1, 1976) _ EE NL 138a

Appendix T

Trial Exhibit A-1, Map of Renton, Washington,

I eres 140a

Appendix U

oe ee eee Be

hibit A-1 _ 1 en Pine ee

Appendix V

Trial Exhibit A-3, Aerial Photo witn Overlay of

Area Shown in Trial Exhibit A-2 142a

la

APPENDIX A

UNITED STATES COURT OF APPEALS

NINTH CIRCUIT

Nos. 83-3805, 83-3980

PLAYTIME THEATERS, INC.,

a Washington corporation, et al.,

Plaintiffs-A ppellants,

v.

THE CITY OF RENTON, et al.,

Defendants-A ppellees.

THE CITY OF RENTON,

a municipal corporation, et al.,

Plaintiffs-A ppellants,

v.

PLAYTIME THEATERS, INC.,

a Washington corporation, et al.,

Defendants-A ppellees.

Argued and Submitted May 9, 1984

Decided Nov. 28, 1984

Robert Eugene Smith, Encino, Cal., for Playtime Thea-

ters, Inc.

Lawrence J. Warren, Daniei Kellogg, Warren & Kel-

logg. Renton, Wash., for City of Renton.

2a

Appeal from the United States District Court

Before FLETCHER and FARRIS, Circuit Judges, and

JAMESON,” District Judge.

FLETCHER, Circuit Judge:

These consolidated cases are declaratory judgment ac-

tions involving the constitutionality of the City of Ren-

ton’s zoning ordinances regulating the location of adult

motion picture theaters.

In case number 83-3805, Playtime Theaters, Inc.

(“Playtime”) appeais the district court’s order denying a

permanent injunction and finding that the ordinance fur-

thers a substantial governmental interest, is unrelated to

the suppression of speech, and is no more restrictive than

necessary to further that interest. Case number 83-3980

is a declaratory action involving the same parties and is-

sues, filed by the City of Renton in state court after fed-

eral proceedings had begun. This action was twice re-

moved to federal court and twice remanded to state court.

Renton appeals the district court’s denial of its motion for

fees and costs on the second removal. We reverse in num-

I

BACKGROUND

In April, 1981, the City of Renton enacted ordinance

number 3526 which prohibited any “adult motion picture

* Hon. William J. fmm, Sty ES

Sac tapetnen dete So

an enclosed building used for presenting motion picture films,

3a

zone or single or multiple family dwelling, any church or

other religious institution, and any public park or area

zoned for such use. The ordinance further prohibited any

such theater from locating within one mile of any public

or private school. At the time this ordinance was en-

acted, no adult theaters were located in Renton, although

there were other theaters within the proscribed area.

In January, 1982, Playtime acquired two existing thea-

ters in Renton with the purpose of exhibiting adult mo-

tion pictures in at least one, the Renton Theater, which is

ponte npn aes pede ina-car-enyliagpneermeray

shding; Geaniiing 2 Gilles % “specified sexual activities”

or “specified anatomical areas” as hereafter defined, for ob-

servation by patrons therein.

The ordinance defined these terms as follows:

2. “Specified Serual Activities” :

arousal ;

sodomy ;

pubic region, buttock or female breast.

3. “Specified Anatomical Areas’:

guntidin, guts segien, Satins, ond fame teunt telew ©

point immediately above the top of the areola; and

(b) Human male genitals in a discernible turgid state,

even if completely and opaquely covered.

The second ordinance expanded the defined term of “used” as:

a continuing course of conduct of exhibiting “specific [sic

specified ?] sexual activities” and “specified anatomical area{”]

in a manner which appeais to a prurient interest.

4a

located within the area proscribed by ordinance number

3526.7

Just prior to closing the sale of the theater, on Janu-

ary 20, 1982, Playtime filed an action in federal court,

seeking a declaration that the ordinance was unconstitu-

tional and a permanent injunction against its enforce-

ment.

A month later, on February 19, 1982, Renton brought

suit in state court seeking a declaratory judgment that

the ordinance was constitutional on its face and as ap-

plied to Playtime’s proposed use. The complaint alleged

that an actual dispute existed because of the pending fed-

ton moved to dismiss Playtime’s federal action on the

grounds that the federal court should abstain in favor of

the state action, citing Younger v. Harris, 401 U.S. 37,

91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and Huffman v.

Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482

(1975).

On March 8, 1982, Playtime removed the state action

to federal court and Renton moved to remand. On March

25, the magistrate filed his recommendation that absten-

dion Gan Senomner ie Os feat aniten and on hee® 0, be

SaaS See Se Meee wee eee oe See

tho cnstiun ts dein Ges tuted eaten an ta &

and remanding the state action on January 13, 1983.

2 For the purposes of this opirion, “adult motion picture theater”

or “adult theater” refers to the definition used by the City. See

supra note 1. We express no view as to the effect of this definitio

on the constitutionality of the ordinance. See infra note 18.

5a

nan, cietaiion antianien cumin G8. ae

nance added an elaborate statement of reasons for the

enactment of the ordinances,’ it further defined the word

3 The City gave the following reasons in the amended ordinance:

1. Areas within close walking di - rie

family dwellings should be free of adult entertainment land

uses.

2. Sate Utne Cee Srine Se apeaes te WE, guint

or recreate should be free of adult ente: ment land uses.

3. Adult entertainment land uses should be located in areas

uses, churches, parks and other public facilities, and schools.

4. The image of the City of Renton as a pleasant and attrac-

tive place to reside will be adversely affected by the pres-

ence of adult entertainment land uses in close proximity to

itial land uses, churches, parks and other public fa-

cilities, and schools.

5. Regulation of adult entertainment land uses should be

developed to prevent deterioration and/or degradation of

the vitality of the community before the problem exists,

rather than in response to an existing bi

6. Commercial areas of the City patronized by young people

and children should be free of adult entertainment land

uses.

7. The Renton School District opposes a location of adult

entertainment land uses within the perivneters oi its policy

regarding bussing of students, so that students walking to

school will not be subjected to confrontation with the

existence of adult entertainment land uses.

8. The Renton School District finds that location of adult

entertainment land uses in areas of the City which are in

close proximity to schools, and commercia! areas patronized

by students and young people, will have a detrimental effect

upon the quality of education which the School District is

providing for its students.

9. The Renton School District finds that education of its

Aeteis OE te sagiinty eites ty besitos of afult

inment land uses in close proximity to locati of

10. Adult ent inment land uses should be regulations [sic]

ur cies ts palais Gain hes Ghee one tube

4

Four years later, the Supreme Court of Washington,

sitting en banc, unanimously upheld two zoning ordi-

nances that required adult theatres to be located in cer-

tain downtown areas of Seattle. Northend Cinema, Inc.

v. City of Seattle, 90 Wash.2d 709, 585 P.2d 1153 (1978).

Reciting extensive studies demonstrating the problems

created by such theatres in residential and commercial

areas, the court held that even though some ten adult

theatres would be forced to relocate, the ordinances were

valid under Young. The residents of Seattle had expressed

concerns about the attraction of transients, parking and

traffic problems, increased crime, decreasing property

values, and interference with parental responsibilities to-

ward children. “In short, the goal of the City in amend-

ing its zoning code was to preserve the character and

quality of residential life in its neighborhoods * * *. A

second and related goal * * * was to protect neighborhood

children from increased safety hazards, and offensive and

dehumanizing influence created by location of adult movie

theatres in residential areas.” 585 P.2d at 1155.

The effect of the Seattle restrictions was to force adult

theatres into an area consisting of approximately 250

acres (or less than 1% of the city’s acreage). Id. at

1156. Noting that this Court had approved the “con-

centration” as well as the “dispersal” method of zoning

theatres in Young, the Washington Supreme Court ruled

that Seattle’s planning effort “must be accorded a suffi-

cient degree of flexibility for experimentation and in-

novation.” 585 P.2d at 1159. This Court denied certiorari

in the case. 441 U.S. 946 (1979).

A year later, and partly as a result of these two deci-

sions, events began unfolding in Renton, Washington.

Appellant Renton is a small city, with a 1981 popula-

tion of 32,200,2 whose northern border is approximately

2 Cl. aff., Jan. 27, 1982, at 1. The terms “aff.”, “test.” and “dep.”

refer to “affidavit,” “testimony” and “deposition”, respectively.

“Cl.” refers to David R. Clemens, Renton’s Policy Development

Director; “And.” refers to Bruce Anderson, an associate real

5

one mile from the southern berder of Seattle. In mid-

1980, the Renton City Council began to study the regula-

tion of adult entertainment land uses.* The Council and

its Planning and Development Committee held numerous

meetings—all of them open to the public—to consider this

issue. Testimony was taken at several meetings. At one

meeting, for example, 64 persons atlended, and 28 of

them spoke.’ Among those offering statements were the

' head of the Renton Chamber of Commerce and the Su-

perintendent of Schools.° There was testimony about adult

theatres in relation to their impact on commercial prop-

erty values, concern about crime, the deterioration of resi-

dential neighborhoods, effects on childrer, ete.’ In the

meantime, the office of the City’s Acting Planning Di-

rector had received and studied documents from Seattle

underlying that city’s own ordinance, including a summary

of findings and conclusions, and the Director had studied

the Northend Cinema decision.* This Court’s findings and

decision in Young were also reviewed,’ as well as the ap-

proaches taken by numerous other cities, inside and out-

side the State of Washington.*® There was a report from

the Renton City Attorney’s office and from the Acting

estate broker testifying for Appellee Playtime; “Forbes” refers to

Roger H. Forbes, President of Playtime; “John.” refers to Jimmy

Johnson, an executive with a company that acquires adult theatres;

and “Burns” refers to Jack R. Burns, a Playtime attorney.

8 Burns aff., Jan. 27, 1982, at Exs. 1-10.

*Cl. dep., Mar. 3, 1982, at 41-44. The Committee alone held at

least six meetings. /d.

5 Cl. aff., Jan. 27, 1982, at 3; see also Cl. dep., Mar. 4, 1982, at 35.

® Cl. test., Jan. 29, 1982, at 27-29; Cl. dep., Mar. 3, 1982, at 45-48.

7Cl. dep., Mar. 4, 1982, at 14; Cl. test., Jan. 29, 1982, at 34;

Cl. aff., Jan. 27, 1982, at 3-5. See also Renton, Wa., Ordinance

3629 (May 3, 1982), App. 81a.

8 Cl. test., Jan. 29, 1982, at 31-33.

® Cl. dep., March 4, 1982, at 7-8.

10 Td. at 5-12, 50-52.

6

Planning Director, who himself had had prior experience

with similar problems in California.’ All of these pro-

ceedings were carried out in the usual way, following

normal City Council procedures.”

After almost a year’s study of adult uses, the City

Council adopted an ordinance (No. 3526) on April 13,

1981, which defined an “adult motion picture theater”

in terms of a building “used for” the exhibition of visual

media depicting “specified sexual activities” or “specified

anatomical areas.’”’ App. 78a. It prohibited such theatres

from locating within 1,000 feet of any residential area,

church, park, or religious facility or institution, or within

one mile of any school. The ordinance was modeled after,

and was virtually identical to, the ordinances that had

been approved in Young and Northend Cinema. See App.

99a-139a (where the Detroit and Seattle ordinances are

set forth in their entirety). At the time the first Ren-

ton ordinance was enacted, there were no adult theatres

located in Renton, nor any sign that one would move

into the city.

Nine months later, on January 20, 1982, Appellees

Playtime Theatres, Inc.,’* and Kukio Bay Properties, Inc.,

brought a suit in the United States District Court for the

Western District of Washington alleging that Kukio had

contracted to purchase two motion picture theatres in

downtown Renton and to lease them to Playtime.“ .

11 C). aff., Jan. 27, 1982, at 3; Cl. test., Jan. 29, 1982, at 33-34;

Cl. dep., Mar. 4, 1982, at 17.

12 Cl. dep., Mar. 4, 1982, at 24-25.

13 Playtime was the same company that had operated adult

theatres in Seattle, Tacoma, and at least three other cities in the

State of Washington. Forbes dep., Apr. 9, 1982, at 6, 8.

14 Playtime’s President admitted that he was fully aware in

December or January, when he was considering the possibility of

entering Renton, that there was an ordinance then in place prohib-

iting adult theatres in the area where he was seeking to locate.

Forbes dep., May 27, 1982, at 15-17.

7

Kukio and Playtime conceded in their Complaint that

their theatres would “continuously operate exhibiting

adult motion picture film fare to an adult public audi-

ence.” App. 61a. The Complaint alleged (App. 67a-71la)

that Renton’s ordinance was unconstitutional on its face

and as applied to the plaintiffs under, among other things,

the First and Fourteenth Amendments, and that it was

not susceptible of a constitutional construction. App. 68a-

69a. Kukio and Playtime (hereinafter collectively

“Playtime”) sought, inter alia, a declaratory judgment

and a preliminary and permanent injunction. App. 75a-

76a.

On May 3, 1982, the City Council passed a second

zoning ordinance (No. 3629), amending the prior one.

Insofar as relevant here, the amendment (a) spelled out

the fact that in passing the prior ordinance, the City

Council had relied upon the decisions in Young and

Northend Cinema (App. 8la); (b) summarized some of

the testimony received at its public hearings (App. 81la-

85a); (ce) set forth findings of fact that had formed the

basis of the prior ordinance (id.); (d) defined “used”

in the prior ordinance to mean “a continuing course of

conduct” (App. 87a); and (e) reduced the restriction on

locating near schools from one mile to 1,000 feet. App.

87a.

Among the City Council’s findings were these: (1)

the location of adult theatres in close proximity to resi-

dential areas, churches, parks, and schools may lead to

increased criminal activities, including prostitution; (2)

the location of adult theatres has a deteriorating effect on

the areas of the city in which they are located; and (3)

reasonable regulation of adult theatre locations will pro-

1° The amendment also declared a state of emergency to exist,

and it included a severability clause and a declaration that a viola-

tion of the ordinance was a public nuisance, which was subject to

abatement by civil action. App. 88a-89a.

8

tect the character of the community and its property

values while providing access to those who desire to

patronize adult theatres. App. 82a-84a.

Finally, on June 14, 1982, the City Council, on advice

of counsel, adopted a third ordinance (No. 3637) which

reenacted Ordinance 3629 without an emergency clause.

App. 90a. These three ordinances will hereinafter be re-

ferred to collectively as “the ordinance”.

By drawing a series of circles around the areas re-

stricted by the ordinance, one could determine that the

effect of the ordinance was to set aside 520 acres within

which adult theatres could locate."® The set-aside zone

contained “primarily developed, existing commercial de-

velopment of various types” as well as “areas that are

currently underdeveloped and in the process of transition

to developed uses.” '’ The area set aside included land

“in all stages of development from raw land to developed,

improved and occupied office space, warehouse space and

industrial space.” *

After a hearing, a Magistrate submitted a report rec-

ommending that Renton’s ordinance be held in violation

of the First Amendment. App. 37a.’® A preliminary in-

junction issued, but the District Court later granted sum-

mary judgment in Renton’s favor and dissolved the in-

junction.

16 C]. aff., May 26, 1982, at 2.

17 Cl. test., June 23, 1982, at 62.

18 C]. aff., May 26, 1982, at 2.

19 There were several attempts by Renton to have the District

Court abstain in favor of the state court, but both court. below

held that federal jurisdiction was appropriate. Even tt .gh we

believe the courts below were in error in regard to abstention (cf.

Huffman v. Pursue, Ltd., 420 U.S. 592 (1975); Middlesex County

Ethics Committee v. Garden State Bar Ass’n, 457 U.S. 423 (1982) ),

that issue is not pursued in this appeal.

9

The District Court ruled that Renton’s ordinance “in

its essential features is virtually identical” to the Detroit

and Seattle ordinances, except that the word “used” was

more precisely defined in the Renton ordinance. App.

26a. The intrusion into First Amendment interests was

not substantial because the ordinance’s restrictions were

even narrower than those in the Detroit and Seattle ordi-

nances, no theatre had been closed, there was no content

limitation, and the availability of 520 acres contradicted

the notion of a substantial restriction on protected

speech. According to the District Court, the burden of

having to locate a theatre within the set-aside area was

no different than the burden upon other land users “who

must work with what land is available to them in the

city.” App. 27a. The trial court found that the acreage

available to Playtime and other adult theatres was com-

prised of land “in all stages of development * * * that is

criss-crossed by freeways, highways, and roads * * *.”

App. 28a.

Furthermore, the District Court found that Renton’s

ordinance met all four parts of the O’Brien test.”° In

particular, Renton’s articulated interests in protection of

its community through zoning were furthered by its ordi-

nance. There was no evidence that the secondary effects

of adult land uses in Renton would be different than

those in Seattle, Tacoma, or Detroit, and the experience

of other cities and towns “must constitute some evidence”

for the City Council to consider; the “observed effects in

nearby cities provides persuasive circumstantial evidence

of the undesirable secondary effects” Renton was at-

tempting to obviate. Renton, according to the District

Court, was entitled to experiment in this admittedly deli-

cate and serious area. App. 30a. While some citizens at

public meetings predictably expressed concerns that

would have formed an impermissible basis for the ordi-

20 See n.1, supra.

10

nance, these statements “should not negate the legitimate,

predominate concerns of the City Council * * *.” App.

3la. Thus, because Renton’s “effort to preserve the quai-

ity of its urban life * * * is minimally intrusive of a

particular category of [the] protected expression” de-

scribed in Young (App. 32a), the District Court granted

Renton’s motion for summary judgment.

The Ninth Circuit reversed and held Renton’s ordi-

nance in violation of the First Amendment. App. 22a.

It refused to review the District Court’s O’Brien rulings

under a clearly erroneous test but instead considered

them as mixed questions of law and fact, subject to de

novo review. The Ninth Circuit ruled:

1. Renton improperly relied on the experience of other

cities in trying to prove a significant governmental in-

terest to support its enactment. The Court of Appeals

distinguished Renton’s ordinance from that in Young

because Detroit’s ordinance dispersed adult theaters,

whereas Renton’s concentrated them in one area. App.

17a. Furthermore, Renton had to “justify its ordinance

in the context of Renton’s problems—not Seattle’s or De-

troit’s problems.” Jd.; emphasis in original. “Renton has

not studied the effects of adult theaters and applied any

such findings to the particular problems or needs of

Renton.” App. 19a. Detroit’s studies “are simply not

relevant to the concerns of the Renton ordinance * * *.”

Id.

2. Without disagreeing that 520 acres were outside the

restricted zone, the court concluded that the land was

not “available” in the constitutional sense because “a sub-

stantial part” was undeveloped or already occupied by

various industrial and commercial concerns. App. 13a.

3. Because some citizens at public hearings had ex-

pressed disapproval of adult movies, there was “at least

an inference that a motivating factor behind the ordi-

nance was suppression of the content” of speech. The

annie Eu. i

Council ; TCT Cities eee cunssent the tent in

ee ee oe Seng Socisien wes

since Young to regulate the location of adult establi:

ments within their borders. ie io fiw of Geir ienien

ordinances have been upheld—and only one federal Cir-

cuit has sustained the validity of a Young-style adult

theatre ordinance on the merits.“ Most have been struck

72 App. 20a (quoting Tovar v. Billmeyer, 721 F.2d 1260, 1266 (9th

Cir. 1983) (emphasis by the Playtime court), cert. denied, 105

S. Ct. 223 (1984) ).

One sentence in the Court of Appeals’ decision (App. 20a-21a)

qouie So sand to mann that his coco wes being remanded for fur-

Se eee Oe ee ‘ intent. The Ninth Circuit's remand

Seunnstts Gees Gate Seeatien Che tower eoust’s decision an fnal

for purposes of appeal. See generally Moore v. New York Cotton

Exchange, 270 U.S. 593, 603 (1926); Gulf Refining Co. v. United

States, 269 U.S. 125, 136 (1925). Moreover, this case is not inter-

Ey G2 SS Seetee to Bo Seuss Rave presented fer esiow.

memorandum arguing th! the reord is complete and may not be

asta eaEEE Setentitem, and exiting the matter down for

© Ressing cn Fhgtinss domege deine

TT cite teense antes te eens caeedeon

as demonstrated below.

=> Genusa V. City of Peoria, 619 F.2d 1203 (7th Cir. 1980). See

also Northend Cinema, Inc. v. City of Seattle, supra; City of Whit-

tier V. Walnut Properties, Inc.. 149 Cal. App. 3d 633, 197 Cal. Rptr.

127 (2d Dist.), vacating 189 Cal. Rptr. 12 (2d Dist. 1983) ; County

12

down because of an actual or practical unavailability of

alternative sites,“ an intent to inhibit,“ or the effect of

aig? ane ot ae OS a SES SE

blishments; and/or an intent to suppress the content

of adult films.* In summary Young-style ordinances

of Sacramento Vv. Superior Court. 137 Cal. App. 3d 448. 187 Cal.

Rptr. 154 (3d Dist. 1982); Hert Book Stores, fue. v. Edmisten,

poor Po inde: ee. cart. denied, 7 US. $29 (1980); Lydo

Enterprises, Inc. v. City of Las Vegas, 745 F.2d 1211 (9th Cir.

1984) (appeal from preliminary injunction).

23 E.g.. Basiardanes v. City of Galveston, 682 F.2d 1203, 1209,

1212, 1214 (5th Cir. 1982); Alezander v. City of Minneapolis, 531

F. Supp. 1162, 1168-69 (D. Minn. 1982), afd, 698 F.2d 936 (8th

Cir. 1983): CLR Corp. v. Henline, 520 F. Supp. 760, 767 (W_D.

Mich. 1981), aff'd, 702 F.2d 637 (6th Cir 1983); Purple Onion, Inc.

v. Jackson, 511 F. Supp. 1207, 1209, 1214, 1215-17 (N.D. Ga. 1981):

E&B Enterprises Vv. City of University Park, 449 F. Supp. 695, 697

(N._D. Tex. 1977) ; Bayside Enterprises, Inc. v. Carson, 450 F. Supp

696, 701-702 (M_D. Fla. 1978). Cf. Lydo Enterprises. Inc. ¥. City of

Las Vegas, 745 F.2d at 1213-15 (preliminary injunction deniec

where theatre owner failed to show that alternative sites were not

available) : Deerfield Medical Center v. City of Deerfield Beach, 661

F.2d 328, 336 ‘Sth Cir. 1981) (re abortion clinics) ; Keego Harbo~

Co. ¥. City of Keego Harbor, 657 F.2d 94, 96-99 (6th Cir. 1981)

(ordinance totally prohibited adult theatres) .

*%E.g.. Tovar v. Billmeyer, 721 F.2d at 1264-65; Kuzinich V-

County of Santa Clara, 689 F.2d 1345, 1348-49 (Sth Cir. 1982);

Rasiardanes V. City of Galveston, 682 F.2d at 1216; Avalon Cinema

Corp. ¥. Thompson. 667 F 2d 659, 661-662 (8th Cir. 1981). See also

Ebel v. City of Corona, 698 F.2d 390, 393 (9th Cir. 1983) ; Fantasy

Book Shop, Inc. Vv. City of Boston, 652 F.2d 1115, 1119, 1124-25 (ist

Cir. 1981).

23 E.g.. Alezander v. City of Minneapolis, 531 F. Supp. at 1170;

Purple Onion, Inc. v. Jackson, 511 F. Supp. at 1212, 1217, 1224. Cf.

Bayou Landing, Ltd. v. Watts, 563 F.2d 1172, 1175 (5th Cir. 1977),

cert. denied, 435 U.S. 818 (1978).

2* E.g.. Purple Onion, Inc. v. Jackson, 511 F. Supp. at 1210; E£B

Enterprises Vv. City of Tmiversity Park, 449 F. Supp. at 697. Cf.

Bayou Landing, Ltd. v. Watts, 563 F.2d at 1175.

13

have been upheld only in the Seventh Circuit and have

First, Fifth, Siath, Eighth, and Ninth Cireuits

outlet for adult film fare Before any theatre had em

dures. > calid Ghee bad creme Oo ale toe

tions, but it tailored its ordinance to fit Renton’s particu-

findings and reasons for its action. Its ordinance did not

unduly inhibit speech; instead, it set aside what the Dis-

trict Court found was a “large percentage of land within

the city” (App. 27a) for the iocation of adult theatres and

for the showing of their films. Yet Renton’s attempt

went for naught. The Ninth Circuit, reviewing the Dis-

trict Court’s findings de novo, struck down Renton’s ordi-

naNce as unconstitutional The Court of Appeals was

wrong in several crucial respects.

1. Renton Properly Relied on the Experience of Other

Cities

The Ninth Circuit erred in ruling that Renton could

a ee ee ee oe ee

and urban planning experts aswell as some laymen o

14

cities, and that could be expected in Detroit, from the

influx and concentration of such establishments.” 427

U.S. at 81 n.4 (Powell, J., concurring) ; emphasis added.

Moreover, the Ninth Circuit’s ruling would effectively

prohibit any city from enacting an ordinance in advance

of the entry of adult theatres into its environs. A city

can hardly rely upon its own experiences unless and un-

til adult theatres build or buy within the city limits and

introduce the deleterious effects that the ordinance is de-

signed to obviate in the first instance. Must a city really

wait until adult theatres have started the “cycle of de-

cay” that has already been found to evolve in other

areas? Nothing in Young or any other of this Court's

a i sitesi gaa

aan ta te Gcees a 2 eo ee Gee

into Renton.”

towns in Michigan (Appendix in Young at 18-19), New York City

(id. at 30, 35), and cities in countries as far away as Sweden.

Denmark, West Germany, France, Britain and Italy. /d. at 32.

2 On the contrary, were a city to await the entry and deleterious

effects of adult theatres, it would run the risk encountered by other

cities of being accused of drawing its zoning lines with the intent

of closing down a particular theatre (or theatres) already operat-

ing within its borders. See, ¢.g., cases cited in n.24, supra.

2 Moreover, Renton’s ordinance can hardly be said to have im-

it suffered was of its own doing, with full knowledge of the facts.

See n. 14, supra.

* See, e.g.. Avalon Cinema Corp. ¥. Thompson, 667 F 2d at 661-

662; see also CLR v¥. Henline, 520 F. Supp at 767.

16

en which adh jastity Goldie’s thesis would

deny to lawmakers in one locale the benefit of the

a and experience of lawmakers in another

munity, no matter how similar the circum-

pr eeen it would, as it were, require the zcinvention

of the wheel countless times over when mere access

effort involved unnecessary. [County of Sacremento

v. Superior Court, 137 Cal. App. 3d at 455, 187 Cal.

Rptr. at 158.)

The Ninth Circuit’s contrary ruling imposes imper-

missible and wholly unnecessary burdens on municipal

die There is simply no basis for courts

setting such arbitrary guidelines for the types of “evi-

dence” a city council] may consider in its legislative

ible Zone for the Location

The court below ruled that, even though Renton had

effectively set aside 520 acres of land on which adult

theatres could locate, this land was constitutionally “un-

a er Se > 5) aE

developed for existing commercial uses. App.

%1 See also Ebel v. City of Corona, 698 F.2d at 392, where the

objection that the City Council had not made adequate findings of

fact was rejected by the court because the city oe

this was all that was required for a “legislative act”. ana heat

Enterprises, Inc. ¥. City of Las Vegaz, 745 F.2d at 1215. Cf. Fan-

tasy Book Shop, Inc. v. City of Boston, 652 F.2d at 1125.

fH

17

theatre is with the quality of the community, the greater

its right to locate there. A small, predominantly residen-

tial city or town with a centrally located, modest com-

mercial development will be unlikely to have much space

ailable” for adult theatres. Yet under the Ninth Cir-

cities Uke Detvelt with mase epece and many cimilar woes

But even if the focus is properly on the practical avail-

ability of Renton’s own set-aside zone, the Ninth Circuit

wrong. To begin with, it misconstrued the record in

a The court cited such properties as

the Longacres Racetrack and a city sewage plant as being

within the set-aside area, when in fact the racetrack and

aside area.™ The confusion can only be accounted for

7 Se Oe Se ee SS See aS and accom-

is Gite prior to the time that the permissible dis-

tance from schools was reduced from one mile to i,000

feet. The map also contained a number of errors because

it had to be prepared within a few hours’ time.* When

Go cane Caen Seeeies ane Ge entnenee an amend

aoa, canis aus ae aan come

%2 See maps at App. 140a-142a.

CL. test.. Jume 23, 1982. at 77, 84; see Cl. aff.. Jan. 27, 1982

(inel. map).

™ CL test.. June 23, 1982, at 77-85.

™ Compare map attached to Cl. aff.. Jan. 27, 1982, with map at-

tached to Cl. aff.. May 26, 1982.

18

because it treated the District Court’s findings as part

“law,” reviewed them de novo, and overturned them.

In addition to its view of the facts, the Ninth Circuit’s

underlying thesis is fatally flawed. Its approach raises

serious concerns of great import to cities and towns

throughout the country. The court assumed that unless

property is immediately available for purchase from a

willing seller, the ordinance has the effect of “ ‘suppress-

ing, or greatly restricting access to, lawful speec "tala

Even if an ordinance resulting in a “substantial restric-

tion” on the showing of adult films would violate the First

Amendment, that is clearly not the case in situations like

this one. We begin with the fact that Renton did not

set aside a small, restricted area of land. The set-aside

area is physically large enough to accommodate more than

400 theatres and surrounding parking lots.** It consti-

tutes over 4% of all the land in the City (as compared

to Seattle’s set-aside area of less than 1% ).* Its acreage

is larger than one-fourth of the entire area of Renton

occupied by single-family residences and exceeds the

amount of land in the City used for parks and recrea-

tion.*® Witnesses for both Renton and Playtime testified

that rauch of the 520 acres is simply unoccupied land,

adjoined and criss-crossed by both highways and interior

37 App. 13a n.11 (quoting Young, 427 U.S. at 71 n.35).

38 Playtime’s own attorney assumed that an adult theatre seating

400 persons would require 6000 sq. feet of space. Cl. dep., Mar. 3,

1982, at 68-72. Renton’s Policy Development Director testified that

such a building would need 40,000 additional sq. feet for parking,

plus or minus 10% for error, or a maximum total of 52,000 sq. feet

for the entire theatre area. Jd. A 520-acre area would encompass

22,651,200 sq. feet, or some 435 theatre areas.

39 Cl. aff., Jan. 27, 1982, at 6. This estimate for Renton was made

before the set-aside zone was enlarged by the second ordinance.

Therefore, the percentage today would be even larger.

40 C). aff., Jan. 27, 1982, at 2.

ee Oe ML Ae an ete Os

19

access roads.** So long as this land is within reasonable

driving distance of the City’s populated areas* and

physically accessible, why is it not constitutionally “avail-

able” for the location of adult theatres? The Court of

Appeals does not say. The court does assume, however,

that a “fully-developed shopping center” and “a business

park containing buildings suitable only for industrial use”

are not constitutionally “available’.** This theme appar-

ently follows the approach of Playtime’s real estate ex-

pert, who testified that much of the land was not “avail-

able” because it was occupied, and a number of property

owners told him they would not sell to an adult theatre

owner.**

‘This approach is wholly specious for two reasons.

First, property can be purchased through third parties,

with the identity of the true purchaser disguised. But

even more importantly, the court’s approach gives the

adult theatre owner a preferred position above every

other potential purchaser of property. He does not have

to compete in the marketplace for property like everyone

else, including drug stores, hair salons and theatre own-

ers showing regular fare. Even the business offices of the

media, also protected by the First Amendment, enjoy no

such privilege.** Under the Ninth Circuit’s thesis, a city

41 Cl. aff., May 26, 1982, at 2-3; John. test., June 23, 1982

’ ’ , . ’ ’ . at

Pigg . Cl. test., June 23, 1982, at 54-59, 61-62, 84-85; Cl. test.

an. 29, 1982 at 16-17, 27, 42-43, 49-50, 51, 53, 56-57, 61-64; t

aff., June 15, 1982, at 4-9. —

42 The entire land area of Renton consists of only 15.3

miles. Cl. aff., Jan. 27, 1982, at 1. ae eee

*S App. 13a. There was, however, unrebutted testimony that

theatres can be built in areas designated “industrial park.” Cl.

test., Jan. 29, 1982, at 60, 63-64.

44 And. aff., June 15, 1982, at 5-8.

- Churches, too, must obey zoning laws in the free exercise of

their religion and must buy property under the ordinary rules of

20

must establish the existence of a “turnkey” location for

the adult theatre operator; property must stand ready

to be sold to such an operator from a willing seller. This

reasoning is in direct conflict with the view of those

courts (including the Seventh Circuit) which have up-

held set-aside areas (see n.22, supra), and we submit

that it was never the intent of this Court in Young.

A set-aside zone should be deemed “available” in the

constitutional sense when it is accessible—both in terms

of distance from populated areas of the city and in terms

of internal streets and highways—and when an ordinary

theatre operator could build or buy a theatre there at

such time as property becomes available in the ordinary

course of business. The fact that others have already

built or bought within the area should not be a disquali-

fication; to the contrary, it demonstrates that the zone

is a frequented, accessible and desirable area. That some

present owners express no immediate desire to sell is also

not a disqualifying factor; that is a fact of life faced by

all potentiai purchasers.“* Owners constantly change

their minds, either voluntarily or through the vicissitudes

of business life.

In summary, if Renton’s set-aside zone is not consti-

tutionally “available,” it is fair to say that virtually no

supply and demand. See American Communications Ass’n V. Douds,

839 U.S. 382, 397-898 (1950); Lakewood, Ohio Congregation of

Jehovah’s Witnesses, Inc. v. City of Lakewood, 699 F.2d 303, 307-

309 (6th Cir.), cert. denied, 104 S. Ct. 72 (1983).

46 It should be noted, however, that even Playtime’s real estate

witness could not testify that all property owners within the sét-

aside zone would not sell. Some owners told him they would sell,

some said they did not think the property was “suitable” for this

use, and he could not reach others. And. aff., June 15, 1982, at 4-9.

And even some 22 acres owned by the City is not wholly immune

from sale to third parties. In fact, the City Council voted as

recently as five months ago that in the future the City would study

the possible “purchase, trade or sale” of certain of its property.

Minutes, Renton City Council, Sept. 24, 1984, at 1.

ee ee eae ee rt eee ere ee

he ee ee te te ee eR I. me at

21

small city or town in this country will be capable of

setting aside a permissible zone, consistent with its other

legitimate interests, for the location of adult theatres.

The result of such a development will be loss of control

by small cities and towns over the “quality of life” of

their communities.

3. The Court of Appeals Erroneously Implied an Im-

proper Legislative Motive

The Ninth Circuit apparently ruled *’ that the expres-

sion by citizens at public hearings of views aimed at the

content of adult films raised an inference of an im-

proper motive by the City Council, and that even if this

motive was merely “a” motivating factor in its zoning

decision, this was enough to invalidate the ordinance.

App. 20a. The court erred in several respects.

First, there is a serious question as to whether motive

or inter’.either of citizens or of the City Council it-

self—has a part to play in a case like this, where any

burden on the adult theatre owner’s First Amendment

interests is only incidental. When independent legitimate

reasons exist for minimal restrictions on First Amend-

ment freedoms, this Court has refused to undertake an

analysis of the motivation behind the legislative enact-

ment. See, e.g. United States v. O’Brien, 391 U.S. at

383-386. Here, the legitimate reasons relate to the very

ey of neighborhoods through zoning approved in

oung.

But even if motive or intent is relevant, the Court of

Appeals was still wrong to second-guess a city council.

47 The District Court noted that the City Council had sum-

marized ideas put forth at public hearings, including concerns

reflecting citizens’ values “which might be impermissible bases for

justification of restrictions affecting first amendment interests.”

App. 31A. The Court of Appeals interpreted this statement as a

recognition that “many of the stated reasons [made by the City

Council] for the ordinance were no more than expressions of dislike

for the subject matter.” App. 19a-20a; footnote deleted.

22

There was no evidence that any member of the City

Council had an improper motive. Nevertheless, the court

went behind the specific findings of the Council as to why

the ordinance was passed. It apparently concluded that

because some citizens at an open meeting expressed per-

sonal views adverse to the content of adult films, an

inference was raised that at least one motive of the

Council itself was improper, and this was sufficient to

invalidate the entire ordinance.

The court should not have imputed the motives of

some citizens to the City Council. Village of Arlington

Heights v. Metropolitan Housing Development Corp., 429

U.S. 252, 267-270 (1977).** The effect of the Ninth Cir-

cuit’s ruling on city governments would be to cancel hear-

ings preceding the adoption of zoning ordinances, to close

them to the public, or to pre-censor approved speakers.

None of these results is practical, all are undemocratic,

and they may even be unconstitutional in denying citi-

zens their own First Amendment rights to speak. See

City of Madison Joint School District v. Wisconsin Em-

ployment Relations Comm’n, 429 U.S., 167, 174-176

(1976). Most jurisdictions (including the State of Wash-

ington) now require by law that such proceedings be

open to the public, precisely so that citizens can express

a wide variety of views on the subjects under considera-

tion. City councils should not be held responsible for the

fact that some citizens do not like adult films. As a

matter of fact, the Ninth Circuit ruling would constitute

an invitation to adult theatre owners such as Playtime to

induce citizens to appear at hearings and express imper-

48 The record in Young showed that a number of citizens had

complained in that case about content. For example, one Detroit

resident whose letter was introduced into evidence complained to

the Mayor, “They have pornography available in their back room,

and it is disgusting * * *” (Appendix in Young at 26), and an

attorney for the city conceded: “The concern of the neighborhood

over the showing of this kind of movie has bee” evidenced time and

again by picketing, by calls and letters to our uifice, to the Mayor,

to the Common Council and so on.” Jd. at 48.

23

missible views, thus dooming in advance any subsequently-

enacted ordinance, no matter how well intended.

If the motive of a city council—as opposed to speak-

ers at a hearing—is deemed relevant, a court should

look to the predominant motive behind the ordinance. An

attempt by a court to define “a” single motivating factor

behind a legislative act is simply improper.*® In this

case, all of the City Council’s stated reasons were con-

sistent with a concern about effects. To the extent that

its findings could be said to relate to content, the legisla-

tive intent was to oppose not adult films per se but

rather the showing of adult films in certain locations.

By locating the films nearby, in an accessible and com-

modious area, the City Council is giving adult films their

full play, but without the deleterious effects that evidence

has clearly shown will follow if adult theatres are located

in all areas of the City.

Finally, even if the City Council’s own motives could be

said to be based on objectives not heretofore sanctioned

by this Court, we respectfully urge that those objectives

be approved. It would be ironic indeed if a city could

zone adult theatres because of commercial considerations

*°In City of Las Vegas v. Foley, 747 F.2d 1294, 1297 (9th Cir.

1984), for example, another panel of the Ninth Circuit held that

legislators could not even be questioned about their subjective rea-

sons for passing an ordinance, because the ordinance is to be

measured by such objective facts as stated intent and effect. And

it was precisely because of this problem of delving into the legisla-

tive mind-set that Judge Wallace concurred only in the result in

the Ninth Circuit’s decision in Tovar v. Billmeyer, supra. He wrote

that the majority, by adopting an “a motivating factor” test (721

F.2d at 1266), was refusing to follow the “clear and precise stand-

ard” already adopted by the court in Ebel v. City of Corona, 698

F.2d at 393, to the effect that an ordinance is unconstitutional only

if its “real purpose” is to obstruct the exercise of protected First

Amendment rights. 721 F.2d at 1267 (Wallace, J., concurring). He

pointed out that the very nature of the legislative process means

that there will always be more than a single purpose for any legis-

lative action. Jd. at 1268.

24

such as lowering of residential property values, and not

on the ground that these theatres have an unstable and

debilitating effect on the families living in those same

residences. Such a result would elevate property values

over human values. The stability and cohesiveness of

families and parents’ efforts to raise their children in

suitable surroundings free from crime and blighted areas

are also worthy of protection. These were precisely the

kind of principles that this Court recognized as a valid

basis for zoning in Village of Belle Terre v. Boraas, 416

U.S. 1, 9 (1974): “It is ample to lay out zones where

family values, youth values, and the blessings of quiet

seclusion and clear air make the area a sanctuary for

people.”

Some of the confusion in regard to legislative intent

may have been caused by uncertainty arising out of two

of this Court’s decisions, Village of Arlington Heights

and O’Brien. Arlington Heights dealt with a land area

rezoned after a developer contracted to build racially

integrated housing. The Court held, on the one hand,

that a plaintiff need not prove that the challenged action

“rested solely on racially discriminatory purposes,” be-

cause rarely is a legislature motivated by a single con-

cern. “When there is proof that a discriminatory pur-

pose has been a motivating factor in the decision [to

rezone], * * * judicial deference is no longer justified.”

429 U.S. at 265-266; emphasis added; footnote deleted.

On the other hand, the Court held that the mere fact that

opponents of integrated housing who spoke at various

meetings “might have been motivated by opposition to

minority groups” did not invalidate the ordinance. Id. at

267-270.

50 See also Berman V. Parker, 348 U.S. 26, 32-33 (1954); Paris

Adult Theatre I v. Slaton, 413 U.S. 49, 58-59 (1973) (citizens have

legitimate interest in protecting “the style and quality of life” and

“the total community environment’). p

25

The court below focused upon the “a motivating factor”

language in Village of Arlington Heights and wholly ig-

nored this Court’s holding in that case.

In the second case, O’Brien, the Court flatly refused to

inquire into legislative motives—an inquiry the Court

called “a hazardous matter”. The Court ruled that if a

statute is otherwise constitutional, courts may look to

legislative history for an interpretation of it, but may

not void the statute because of perceived intent on the

part of some legislators. 391 U.S. at 384."' In the instant

case, the Ninth Circuit improperly engaged in the “guess-

work” eschewed in O’Brien.

We respectfully suggest that this Court may have un-

wittingly given conflicting signals to the lower courts in

regard to legislative intent by its decisions in Arlington

Heights and O’Brien. The resulting confusion should now

be resolved in the context of attempts by cities to zone

adult uses.

4. Cities’ Legitimate Attempts to Zone Adult Theatres

Are Jeopardized By the Decision Below

In Young, this Court was apparently divided over

which standard to use in testing the regulation of adult

establishments.” A plurality of four treated adult films

51 See also Hart Book Stores, Inc. v. Edmisten, 612 F.2d at

820-830.

52 This split has not gone unnoted by the lower courts (see many

of the cases in nn.22-26, supra) and by the commeniators. EF.g.,

Friedman, Zoning “Adult” Movies: The Potential Impact of Young

v. American Mini Theatres, 28 Hastings L.J. 1293 (1977) ; Stevenin,

Young v. American Mini Theatres, Inc.: Creating Levels of Pro-

tected Speech, 4 Hastings Const. L. Q. 321 (1977); Aver, The Zon-

ing of Adult Entertainment: How Far Can Planning Commissions

Go? 5 Comm/Ent. L.J. 293 (1982); Pearlman, Zoning and the

First Amendment, 16 Urb. Law. 217 (1984) ; Note, Content Regula-

tion and the Dimensions of Free Expression, 96 Harv. L. Rev. 1854

(1983); Note, Second Class Speech: The Court’s Refinement of

Content Regulation, 61 Neb. L. Rev. 361 (1982); Note, Municipal

Zoning Restrictions on Adult Entertainment: Young, Its Progeny

and Indianapolis’ Special Exceptions Ordinance, 58 Ind. L. J. 505

(1983).

26

as meriting a lower level of protection than other films,

while Justice Powell reached the same result by applica-

tion of the O’Brien four-part test.

Regardless of which standard is applied, Renton has

not violated the First Amendment. Its ordinance is more

narrowly tailored than that approved in Young, because

it defines “use” even more restrictively than Detroit did.

Since its set-aside area is ample to accommodate all of

the adult theatres that could possibly want to locate in

the city, no suppression of speech has occurred or could

occur.**

Applying the O’Brien test, it is clear that (i) zoning is

within the City’s constitutional power; (ii) Renton’s ordi-

nance furthers its important and substantial governmen-

tal interests, including the prevention of decay in resi-

dential and commercial areas and the control of crime;

(iii) the assertion of its governmental interests is un-

related to the suppression of free expression but instead

is closely tailored to the achievement of those interests;

and (iv) any incidental restriction on speech is no greater

than is essential in furtherance of Renton’s governmental

53 The ordinance here requires no separation between adult uses,

so that an operator need not consider the character of other uses

when locating his business. No special licensing or waiver provi-

sions, with their inherent difficulties of discretion, are included.

Likewise, the requirement of continuous exhibition precludes regu-

lation of any incidental or innocent exhibition of sexually explicit

material. Renton’s ordinance therefore satisfies the concerns ex-

pressed by Justice Blackman in his dissenting opinion in Young,

427 U.S. at 88-96 (Blackman, J., dissenting).

54 This case is thus at the furtherest extreme from Schad v.

Borough of Mount Ephraim, 452 U.S. 61 (1981), where nude

dancing was entirely prohibited.

This appeal also does not involve any of the issues presented in

another case from the State of Washington presently before the

Court, Brockett v. Spokane Arcades, Inc., 725 F.2d 482 (9th Cir.),

prob. juris. noted, 53 U.S.L.W. 3235 (U.S. Oct. 1, 1984) (Nos. 84-28

and 84-143).

ne ee

ee ee ee es

nce ta om Ose

r= _ a Re A

27

interests because the market for evpression of adult films

is “essentially unrestrained” in view of the existence of

520 acres available for adult theatres.

If Renton’s ordinance is not sustained, no such ordi-

nance can withstand scrutiny, and the hope held out in

Young for a reasonable approach to the serious second-

ary effects of adult establishments will be dashed for

good.*° This case, therefore, presents questions of extraor-

dinary importance to small communities throughout the

United States. Young’s progeny demonstrate the confu-

sion of well intentioned courts seeking to implement this

Court’s rulings. The lower courts, as well as city govern-

ments and city planners, need and deserve thoughtful

guidance in dealing with the First Amendment’s impact

on the zoning of adult theatres. Only if the decision be-

low is reversed can cities’ efforts to meet this “admittedly

serious problem” ** be accorded “a sufficient degree of

flexibility for experimentation and innovation” ™* in this

vital area of “innovative land-use regulation.” "8

55 See cases cited in nn.23-26, supra.

56 Young, 427 U.S. at 71 (plurality opinion).

57 Northend Cinema, 585 P.2d at 1159.

58 Young, 427 U.S. at 73 (Powell, J., concurring).

28

CONCLUSION

For the reasons expressed above, this Court should note

probable jurisdiction and reverse the judgment below.

* Counsel of Record

Respectfully submitted,

E. BARRETT PRETTYMAN, JR.*

JAMES G. MIDDLEBROOKS

HoGAN & HARTSON

815 Connecticut Avenue, N.W.

Washington, D.C. 20006

(202) 331-4685

LAWRENCE J. WARREN

DANIEL KELLOGG

MARK E. BARBER

ZANETTA L. FONTES

WARREN & KELLOGG, P.S.

100 South Second Street

Renton, Washington 98057

(206) 255-8678

Counsel for Appellants

ne rte ee a eee