Amicus Curiae Brief — Renton v. Playtime Theatres, Inc.

IN THE

SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM 1984

THE CITY OF RENTON, et al.

Appellants,

Vv.

PLAYTIME THEATRES, INC.,

a Washington corporation, et al.

Appellees.

On Appeal from the United States

Court of Appeals for the Ninth Circuit

BRIEF OF AMICI CURIAE WASHINGTON AND UTAH

ATTORNEYS GENERAL IN SUPPORT OF APPELLANTS

KENNETH O. EIKENBERRY

Attorney General

CHRISTINE O. GREGOIRE

Deputy Attorney General

Temple of Justice

Olympia, Washington 98504

(206) 753-6228

DAVID L. WILKINSON

Attorney General

State Capitol

Salt Lake City, Utah 84114

Attorneys for Amici States

of Washington and Utah

NO. 84-1360

IN THE

SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM 1984

THE CITY OF RENTON, ef al.

Appellants,

V-

,

PLAYTIME THEATRES, INC.,

a Washington corporation, et al.

Appellees.

On Appeal from the United States

Court of Appeals for the Ninth Circuit

BRIEF OF AMICI CURIAE WASHINGTON AND UTAH

ATTORNEYS GENERAL IN SUPPORT OF APPELLANTS

KENNETH O. EIKENBERRY

Attorney General

CHRISTINE O. GREGOIRE

Deputy Attorney General

Temple of Justice

Olympia, Washington 98504

(206) 753-6228

DAVID L. WILKINSON

Attorney General

State Capitol

Salt Lake City, Utah 84114

Attorneys for Amici States

of Washington and Utah

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE . .... .

SUMMARY OF ARGUMENT .. «6 «© «© «© @ «

ARGUMENT . > . . . * . * * al °. > . 7.

A City May Appropriately Rely on

the Experience of Other Cities in

Enacting a Responsible Preventive

Zoning Ordinance ...-+«++-ee «

"Quality of Life" Concerns of the

City and First Amendment Interests

of Adult Movie Theatres Should be

Balanced in Favor of the City

Zoning Ordinance ..... «+ « « »

CONCLUSION 7 . 7. * * 7. . . . . . * .

TABLE OF AUTHORITIES

Apple Theatre, Inc. v. City

(1979) . o . . 7 . * . * ° 7.

Euclid v. Ambler Co., 272

U.S. 365 (1926) . . . . - . ”

F.C.C. v. Pacifica Foundation,

436 0.8. 726 (1976) « « « © e

Northend Cinema v. Seattle,

90 Wn.2d 709, 585 P.2d

1153 (1978) . . . . . . . . .

Schad v. Mount Ephraim,

452 U.S. 61 (1981) ..e«-. -

Village of Belle Terre v.

Boraas, 416 U.S. 1 (1974) .

Va. Pharmacy Bd. v. Va.

Consumer Council, 425 U.S.

748 (1976) . > . ° +. 7. — . o

Young v. American Mini

Theatres, 427 U.S. 50

(1976) . . . a . . 7 . 7 . 7

ii

. 2,

Page

ll,

9,

ll

12.

14

14

14

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1984

THE CITY OF RENTON, et al.

Appellants,

Vv.

PLAYTIME THEATRES, INC.,

a Washington corporation, et al.

Appellees.

On Appeal from the United States

Court of Appeals for the Ninth Circuit

BRIEF OF AMICI CURIAE WASHINGTON AND UTAH

ATTORNEYS GENERAL IN SUPPORT OF APPELLANTS

INTEREST OF AMICI CURIAE

The interest of the Washington and

Utah State Attorneys General Offices is

to be of assistance to this Court in

establishing the legal parameters within

which small and large cities alike may

adopt zoning ordinances dealing with

adult movie theaters. Other cities in

Washington similar in size to Renton, are

currently studying the issue with the

intent te enact an ordinance.

While this Court addressed a number

of the relevant issues in Young, there

remains a need to further clarify and

address the issues presented by this case

so as to provide necessary guidance to

these, and other cities across the

country. Accordingly, the Attorneys

General, as amici, here support the

appeal of the City of Renton.

SUMMARY OF ARGUMENT

In enacting the questioned zoning

ordinance, the City of Renton properly

relied on (1) the experience of other

cities and (2) the legal precedent of

this Court and of the Washington State

Supreme Court.

The city attempted to responsibly

enact a zoning ordinance dealing with

adult movie theatres. To avoid the

"cycle of decay" experienced by other

cities, the city attempted to adopt a

preventive ordinance. Its motive was to

protect and preserve the "quality of

life" in this small residential

community.

The effect of such zoning practice

on First Amendment rights is limited and

incidental. When those rights are

balanced against the legitimate concerns

of the city the result should be a

sustaining of the zoning measure.

ARGUMENT

A_City May Appropriately Rely on the

Experience of Other Cities in Enacting a

Responsible Preventive Zoning Ordinance.

Renton is a small residential

community with a population of about

33,340 located immediately adjacent to

Seattle, a large metropolitan city. It

is comprised of approximately twenty-five

downtown blocks. Many Renton residents

commute to Seattle and its suburban areas

for employment.

In 1981 Renton adopted a zoning

ordinance dealing with adult motion

picture theatres showing films depicting

"specified sexual activities" or

"specified anatomical areas." At the

time there were no such theatres in

Renton. Thus, in an attempt to preserve

and protect the “quality of life" in

Renton, the city undertook to adopt a

preventive zoning ordinance. Such

responsible preventive measures surely

have a place in zoning laws.

A city acts responsibly when it

studies the issue, holds public hearings,

complies with its own procedures for

adoption of a zoning ordinance and

proceeds with a proper motive. Here the

city studied the issue for almost @2 year,

held public hearings and took testimony

from concerned citizens as summarized in

the ordinance itself. App. 8la. On the

face of the ordinance, the city's intent

is set forth as follows:

"., .« « to promote the city of

Renton's great interest in

protecting and preserving the

quality of its neighborhoods,

commercial districts and the

quality of urban life through

effective land use

planning: .." App. 8la.

This Court has long recognized the

validity of zoning ordinances and has

given due deference to the body enacting

the ordinance.

"If the validity of the

legislative classification for

zoning purposes be fairly

debatable, the legislative

judgment must be allowed to

control." Euclid v. Ambler

Co., 272 U.S. 365, 388 (1926).

The right to protect "quality of

life" through zoning may be the most

essential function performed by a local

government. Village of Belle Terre

v. Boraas, 416 U.S. 1 (1974), (Marskall,

J. dissenting). In Boraas, “quality of

life" was said to take into account

family values, youth values, the blessing

of quiet seclusion and clean air. The

zoning ordinance there at issue

restricted land use to one-family

dwellings. The ordinance was challenged

as a violation of First Amendment freedom

of association and the constitutional

right of privacy. This Court, however,

upheld the ordinance as a legitimate

guideline in a land-use project addressed

to family needs.

In the instant case, the City of

Renton's attempt to protect and preserve

its "quality of life" led to its adoption

of the instant zoning ordinance before

adult theatres moved into the city. In

enacting such a preventive ordinance

Renton properly relied on the experience

of other cities, in particular Seattle.

In 1976 the City of Seattle amended

its zoning code following a long period

of study and discussion of the problems

of adult movie theatres in its

residential areas. The goal of the city

was to protect and preserve the character

and quality of residential life in its

neighborhoods through effective land-use

planning.

The Supreme Court of Washington

upheld the zoning ordinance. Northend

Cinema v. Seattle, 90 Wn.2d 709, 585 P.2d

1153 (1978), cert. denied sub. nom. Apple

Theatre, Inc. v. City of Seattle, 441

U.S. 946 (1979). In so doing it

recognized that the city's paramount

interest in protecting, preserving and

improving quality of life was sufficient

to justify zoning the location of adult

movie theatres to certain areas through

land use planning and regulation.

"At the public hearing

Greenwood residents spoke of

their concerns regarding the

deterioration of residential

neighborhoods that accompanies

location of adult movie

theatres. The concerns

expressed were very specific

and included the attraction of

transients, parking and traffic

problems, increased crime,

decreasing property values, and

interference with parental

responsibilities for children.”

Id. at 712.

In enacting its ordinance, the

Detroit city council in another case

heard expert testimony that the location

of several adult movie theatres attracted

transients, adversely affected property

values, caused an increase in crime and

encouraged residents and businesses to

move elsewhere. Young v. American Mini

Theatres, 427 U.S. 50, 55, 7l,s n. 34

(1976). The experts and the city council

relied on the experience of other cities

which revealed a “cycle of decay" that

had started and "could be expected in

Detroit." Id. at 8l, n. 4 (Powell,

J. concurring) (Emphasis added).

Likewise, the City of Renton,

relying upon the experience of Seattle

and Detroit and the testimony of many

citizens during Renton's own public

meetinas, adopted findings similar to the

Seattle and Detroit ordinances. Such

action hardly required expert testimony.

Resort to observation of common sense

experience in urban land-use planning

would be sufficient to lead a prudent

city council to conclude that the

proximity of such theatres to

family-oriented neighborhoods will cause

the degradation of the community which

its zoning plan is supposed to prevent.

Why should a small residential city

like Renton be forced to experience for

itself the lesson already learned by

other cities across the country--and

particularly the experience of a major

city located directly adjacent to it? [In

Schad, this Court recognized the

propriety of relying on such experience.

Schad v. Mount Ephraim, 452 U.S. 61, 73

10

(1981). It is important that city

planners be aware of new conditions, new

discoveries and the experience of others

which cause new concepts of social needs

and innovative zoning to address those

needs.

In the Euclid zoning case this Court

recognized the Snteenen te be accorded

those who recognize a specific need and

then identify a specific type of zoning

ordinance to address the need. Euclid v.

Ambler Co., 272 U.S. 365, 388 (1926).

"A nuisance may be merely a

right thing in the wrong place,

--like a pig in the parlor

instead of the barnyard." Id.

Many years after Euclid, this Court,

in referencing this simile, stated that

when a city finds the pig has entered the

parlor, the exercise of police power does

not depend on proof that the pig is

obscene. F.C.C. v. Pacifica Foundation,

ll

438 U.S. 726 (1978). So too, small

cities should not be required to prove by

their own experience, a deterioration in

their most precious commodity--"quality

of life." Renton can reasonably rely on

the experience of cities like Detroit and

Seattle. The obvious should not be left

unstated here. By virtue of its size in

relation to these large cities, Renton

has much more to lose. Its responsible

preventive measures should be upheld.

"Quality of Life" Concerns of the City

and First Amendment Interests of Adult

Movie Theatres Should be Balanced in

Favor of the City Zoning Ordinance.

Amici are not suggesting deference

be given the city in total disregard of

First Amendment rights. Concerns of the

city and the interests protected in the

First Amendment, however, are balanced in

favor of Renton's ordinance. The

ordinance does not suppress production,

12

deny business access to the market nor

does it, to any significant degree,

restrict access to adult theatres.

Interference with First Amendment

protection is only incidental.

On the other hand, if the zoning

ordinance was in effect a total

suppression, then the interference with

the First Amendment would be substantial.

That, however, is not the situation with

the Renton ordinance.

At issue is the zoning of businesses

exhibiting motion pictures for

profit--commercial speech. Such speech

is not afforded the full protection

provided pure speech conveying a social,

pc’itical or philosophical message.

Commercial speech is entitled to some

protection under the First Amendment

governed largely by the content of the

13

communication. WO « Pharmacy

Bd. v. Va. Consumer Council, 425 U.S. 748

(1976).

The motive of the City of Renton was

not the suppression of free speech but

the protection and preservation of the

City's "quality of life." App. 8la.

That justification is sufficient and

should not be subject to attack. Schad,

452 U.S. at 67. Zoning of adult movie

theatres by Renton to protect the

"quality of life" is valid because it

implicates "First Amendment concerns only

incidentally and to a limited

extent.” Young, 427 U.S. at 73.

(Powell, J. concurring).

14

CONCLUSION

The cities of Washington state are

like those of many other states. Small

communities like Renton jealously guard

their residential character. Preventive

versus after-the-fact zoning is an

appropriate means for cities to use in

protecting and preserving possibly their

most valuabe resource--"quality of

life." As a number of other cities

attempt to venture through this course,

it is important that they have the

guidance of this Court. A reversal of

the Ninth Circuit decision would provide

cities with the ability, through

preventive zoning like Renton's, to

15

continue to preserve and protect their

"quality of life."

Respectfully submitted,

KENNETH O. EIKENBERRY

Attorney General

CHRISTINE O. GREGOIRE

Deputy Attorney General

Temple of Justice

Olympia, Washington 98504

(206) 753-6228

DAVID L. WILKINSON

Attorney General

State Capitol

Salt Lake City, Utah 84114

(C01) 533-7661

Attorneys for Amici States

of Washington and Utah

The City of Seattle joins amici in

support of the appeal of the City of

Renton.

Douglas Jewett

City Attorney

City of Seattle

City Hall, 10th Floor

Fourth and James Streets

Seattle, Washington 98104

(206) 625-2416

T6