# Petition for Writ of Certiorari — Holmberg v. City of Ramsey > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1646%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1994 - **Citation:** 513 U.S. 810 ## Text Supreme Court, U.8, FILED ' 981796 MAY 11199 fil ib cu : SUPREME COURT OF THE UNITED STATES October Term, 1993 No. Larry Holmberg and the Amusement Center, Inc., a Minnesota corporation, Petitioner, vs. City of Ramsey, Respondent. PETITION FOR WRIT OF CERTIORARI AND APPENDIX TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT RANDALL D.B. TIGUE 2620 Nicollet Avenue Minneapolis, Minnesota 55408 (G2) 874-9903 Attorney for Petitioner 1964-EXECUTEAM/LAW DIV, 2595 N. Hamline Ave., St Paul, MN 55113 - 612-633-1443 - 800-747-8793 Questions Presented 1. Does an adult entertainment zoning ordinance constitute impermissible content-based censorship, when it amortizes out of existences lawful non-conforming adult entertainment uses, solely on the basis of the content of materials sold and exhibited, regardless of secondary effects, but permits non-adult uses defined, solely on the basis of content, to remain in existence in the absence of an affirmative showing of adverse secondary effects? 2. Does an adult entertainment zoning ordinance setisfy constitutional requirements for alternative avenues of communication, when virtually all of the land area for permitted adult uses is available only at the discretion of the City Council? 3. Does an adult entertainment zoning ordinance satisfy constitutional requirements for alternative avenues of communication, when the only area available for adult entertainment, is vacant, undeveloped property, at which no commercial use would be viable? Parties and Proceedings Below The parties to the proceeding in the District Court were Larry Holmberg, President and sole shareholder of the Amusement Center, Inc., a Minnesota corporation; the Amusement Center, Inc.: and David Schneider, Jr. and Gary Holmberg, who conveyed their interests in the subject bookstore to Petitioners Larry Holmberg and the Amusement Center, Inc., as Plaintiffs, and the City of Ramsey, a municipal corporation, as Defendant. On appeal to the United States Court of Appeals for the Eighth Circuit, only Larry Holmberg and the Amusement Center, Inc.. appealed. Review is sought of the decision of the United States Court of Appeals for the Eighth Circuit, entered December 30, 1993, and for which rehearing was denied on February 10, 1994. The original decision is reported at 12 F. 3d 140 (8th Cir. 1993), and is set forth in the Appendix at A.509-A.516. The order denying the Petition for Rehearing is set forth in the Appendix at A.520. The Eighth Circuit opinion affirms the decision of the United States District Court for the District of Minnesota, reported as Schneider v. City of Ramsey, 800 F. Supp. 815 (D. Minn. 1992), a copy of which is set forth in the Appendix at A.451 - A.468. TABLE OF CONTENTS Parties and Proceedings Below ................2+.2-. oe iad lik see on eens bwevexke 6 ons eS feos Dee y Is ASR e wks Constitutional and Statutory eS Sls, b's oo wia yee Sie ees Argument: I. The Eighth Circuit opinion upholding the disparity in the two amortization provisions, one for non-conforming adult uses, defined by content alone, and all other uses, is at odds with applicable decisions of this Court and of other courts of appeals, within the meaning of Rule 10.1 SEES, gb nc tb cs ce ececveveesn eee II. The decision upholding the ordinance on the issue of reasonable alternative avenues of communication is also in conflict with decisions of this Court A. The Eighth Circuit opinion was at variance with applicable decisions of this Court when it upheld an ordinance which leaves Petitioners’ right to relocation their adult business entirely in the discretion of the Ramsey eee 21 B. Even apart from the issue of unbridled discretion, the available real estate for the location of adult businesses does not satisfy constitutional requirements, established by this court and other United States court of appeals ..........25 eee eens 25 Ne a eg Sg al bel ulate o. Bee We a 29 iv TABLE OF AUTHORITIES Page onstit First Amendment to the United States 0 St eo re i yee 1,19, 23,26 Fourteenth Amendment to the United CD icc ccc ctw ccccceerocescosce 1 Statutes: Title 28 U.S.C. Section 12540) .....ccccccccccccess 1 Court Rules: Rule 10.1 of the Supreme Court Rules...........---- 12 City Ordinances: Ramsey City Ordinance No. 90-23 .........--++: 1,6,22 Ramsey City Ordinance RS errr eS 6,12,17, 18,19 Ramsey City Ordinance tec eb dee eese else ewes 1,7 Ramsey City Ordinance Section O11.39, Subd. 3a 2. ccc ce ccc ccc c ccc ccreees 5 Ramsey City Ordinance ee, © oe bc ccc ccececceceses 7,16,17,18 Ramsey Ordinance Section 9.50.02, . 10 Ramsey Ordinance Section 9.50.03, Re ae ce eer ee 10,11 Ramsey Ordinance Section 9.50.04, Wet eeee i eeberedeccccesuceseeus 10 Ramsey Ordinance Section 9.50.31 ............... 11,23 Cases: Alexander vy. City of Minneapolis, 928 F. 2d 278 (8th Cir. 1991) (Alexander II) .......... 28 Basiardanes v. City of Galveston, 682 De once ees eeecees 28 CLR Corp. v. Henline, 520 F. Supp. 760, 768 (W.D. Mich. 1981), aff'd, po 20 Cascade News, Inc. v. City of eland Case No. 1:92CV 0758 (N.D. Ohio, 1992) ............ 21 City of ewood v. Plain r Publishin Cs ee ce Sah occu ct ss roves 24 Cleveland Board of Education v. LeFleur, EC 20 Dumas v. City of Dallas, 648 F. Supp. 1061 (N.D. Tex. 1986), aff'd, 837 F. 2d 1298 (Sth Cir. 1988), aff'd, in part, vacated in part, 493 U.S. 215, (1990) ............... 28 FW/PBS, Inc. v. City of Dallas, Se EE Be OED he ce evee win deoovceeee ss K 23 vi | : Forsyth County, Ga. v. Nationalist Movement, oe, ee ee Dds SOO i eee eeses ebb e ews 24 Kuhns v. Board of Supervisors, 128 Cal. Fe EE Cbd cee et hU8 sb bee e's oes ae R.A.V. v. City of St. Paul, __U.S._, 12 S.Ct. 2538, EBD Bat BO DUPED ccc ic ccccccrcccccecseee 18 Schad v. Borough of Mt. Ephraim, ee os teehee eb aven 29,30 Schneider v. City of Ramsey, 800 F. Supp. EE nes db bee ss bnesece dose de ches ii Southeastem Promotions, Ltd. v. Conrad ee tee eer ener es 23 Shuttlesworth vy. City of Birmingham, ee kere e cen eeen ee 23 Stanley v. Illinois, 405 U.S. 645 (1972) ............. 20 Tollis v. San Bemardino County, ee ee I cece cweercceseces 17 Topanga Press, Inc. v. City of Los Angeles, 989 F. 2d 1524 (9th Cir. 1993) cert. denied, 61 U.S.L.W. 3960 Ar 26,28,29 Viandis v. Kline, 412 U.S. 441 (1973) ...........24.. 19 vii Wolff v. City of Monticello, 802 F. Supp. 1568 (D. Minn. 1992)...............-. 17 Ww. Vv 2 ® | 2. |. 2 Frere 26 World Wide Video v. City of Tukwil 117 Wash. 2d 382, (1991) cert. denied, ka PPP rrerrrerr es: 17 Y v. Ameri Mini Gar Cee Eo we aa he bd e6s eso ctnecee 14,21,26 viii Jurisdiction Review is sought of a decision of the United States Court of Appeals for the Eighth Circuit, entered December 30, 1993, for which rehearing was denied on February 10, 1994. Jurisdiction is based upon Title 28 U.S.C. Section 1254(). Constitutional and Statutory Provisions Involved This case involves the First and Fourteenth Amendments to the United States Constitution, the text of which are set forth in the Appendix at A.521, and Ramsey City Ordinance No. 90-23, pertinent portions of which are set forth in the Appendix at A.16 - A.56. Statement of the Case Petitioners are the owners of an adults-only bookstore located in the City of Ramsey, Minnesota. The store opened on or about April 19, 1990, at a time in which there were no restrictions on the location of adult entertainment within the City of Ramsey. At the time it opened and at all times subsequent thereto, it was the only adult entertainment facility in the City of Ramsey.’ In November of 1990, some seven months after the opening of Petitioners’ store, the Ramsey City Council enacted Ordinance No. 90-23, pertinent portions of which are set forth in the Appendix at A.16 - A.56, regulating “adult uses" within the City of Ramsey. The ordinance, at Section 9.02, defines the term “adult uses" as follows: ' These facts were not disputed below and were specifically found by the trial court. See Appendix at A.452 - A.454. | "Adult uses include adult bookstores, adult motion picture theaters, adult motion picture rental, adult mini-motion picture theaters, adult massage pariors, adult steam room/bath house/sauna facilities, adult companionship establishments, adult rap/conversation parlors, adult health/sports clubs, adult cabarets, adult novelty businesses, adult motion picture arcades, adult modeling studios, adult hotel/motels, adult body painting studios, and all other premises, enterprises, establishments, businesses or places open to some or all members of the public, at which there is an emphasis on the presentation, display, depiction or description of ‘specified sexual activities’ or "specified anatomical areas’ which are capable of being seen by members of the public." Appendix at A.17 - A.18. The same ordinance, in subparagraph a, defines the term "specified anatomical areas” as: "1. Less than completely and opaquely covered human genitals, pubic region, buttock, anus or female breast(s) below a point immediately above the top of the areola; and 2. Human male genitals in a discernibly turgid State, even if completely and opaquely covered.” Id. at A.18. Subparagraph (b) of the same section defines the term "specified sexual activities” as follows: "1. Actual or simulated sexual intercourse, oral copulation, anal intercourse, oral-anal copulation, beastiality (sic), direct physical stimulation of Distances unclothed genitals, flagellation or torture in the context of a sexual relationship, or the use of excretory functions in the context of a sexually (sic) relationship, and any of the following sexually-oriented acts or conduct; anilingus, buggery, coprophagy, coprophilia, cunnilingus, fellatio, necrophilia, pederasty, pedophilia, piquerism, sapphism, zooerasty; or 2. Clearly depicted human genitals in a state of sexual stimulation, arousal or tumescence; or 3. Use of human or animal ejaculation, sodomy, oral copulation, coitus, or masturbation; or 4. Fondling or touching of nude human genitals, pubic region, buttocks, or female breasts; or 5. Situations involving a person or persons, any of whom are nude, clad in undergarments or in sexually revealing costumes, and who are engaged in activities involving flagellation, torture, fettering, binding or other physical restraint of such person; 6. Erotic or iewd touching, fondling or other sexually-oriented contact with an animal by a human being or A Human excretion, urination, menstruation, vaginal or anal irrigation.” Id. at A-18 - A-20. The same section defines the term "adult use/bookstore” as follows: "A building or portion of a building used for barter, retail or sale of items consisting of printed 3 matter, pictures, slides, records, audio tape, video tape, or motion picture film if such building or portion of a building is not open to the public generally but only to one or more classes of the public extending (sic) any minor by reason of age or if a substantial or significant portion of such items are distinguished or characterized on the emphasis on the depiction or description of "specified sexual activities’ or ‘specified anatomical areas.’" Id. at A-20. The same ordinance defines the term "adult use -- motion picture arcade" as follows: "Any place to which the public is permitted or invited where in coin or slug-operated or electronically or electrically or mechanically- controlled still or motion picture machines projectors or other image-producing devices a™ ‘ maintained to show images to five or few-r persons per machine at one time, and where the images so displayed are distinguished or characterized by an emphasis on depicting or describing ’specified sexual activities’ or ’specified anatomical areas.’" Id. at A-22. Finally, the definition section of the ordinance distinguishes between "adult uses--principal," which it defines as a business establishment having more than "ten percent of its stock in trade or floor area allocated to, or more than 20 percent of its gross receipts derived from, any adult use,” and "adult uses accessory,” in which under 10 percent of the stock in trade or floor area or under 20 percent of the gross receipts are derived from adult uses. Id. at A-20. The substantive restrictions on the location of adult uses are contained in Section 9.11.19, Subd. 3a, which provides as follows: "Adult use-principal shall be located at least 1,000 radial feet, as measured in a straight line from the closest point of the property line of the building upon which the adult-use principal is located to the property line of: 1. Residentially zoned property. 2. A licensed day care center. 3. A public or private educational facility classified as an elementary, junior high or senior high. 4. A public library. 5. A public park. 6. Another adult use-principal. 7. An on-sale liquor establishment. 8. Any church or church related organization.” Id. at A-31 - A-32. At trial, Petitioners admitted that their bookstore was not in compliance with the locational requirements of these provisions, in that it was too close to a church, day care center, and residentially zoned property. (T.62). However, because at the time Petitioners’ store initially opened for business, there were no legal restrictions regulating adult uses, Petitioners’ use became a lawful non-conforming use under the ordinance. The basic rule conceming lawful non- conforming uses is set forth in Ordinance 90-23 at Section 9.01.11, Subd. 2(a) as follows: "Except as provided below, or in this chapter, any legal non-conforming building/structure or use shall not be enlarged or reconstructed, but may be continued at the existing size and in the same manner of operation as it existed at the date when it became classified as non-conforming.” Appendix at A-24 - A-25. The only exception of significance to the general rule is that set forth in Subparagraph m of Subd. 2,? which provides, in pertinent part as follows: "Non-conforming buildings, structures and/or uses which based upon documented study and evidence, pose a danger and/or threat to the health, safety, and general welfare of the community, shall: Upon being identified by the City and upon the owner being notified in writing by the City, the owner shall provide to the City a documented time schedule and program with rational (sic) to support the proposed amortization of the building, structure or use investments which will result in the termination or correction of the non- conformity.” Id. at A-28 - A-29. ? Subparagraphs b-1 contained exceptions and qualifications not of significance here, such as a limitation on the extent that one can perform alterations and repairs on non-conforming uses, a prohibition on moving non- conforming building or structures tw other parcels of land, rules concerning partial destruction of non-conforming uses, and rules concerning abandonment of non- conforming uses. See Id. at A-25 - A-28. 6 i aaacianieiatanareaet trina enemmnnl In other words, legal nonconforming uses other than adult entertainment are permitted to remain in operation forever, unless an affirmative showing can be made that they pose a "danger and/or threat to the health, safety, and general welfare of the community." In other words, an affirmative showing must be made that the non-conforming use, in fact, causes adverse secondary effects. By contrast, Section 9.11.19, Subd. 5, dealing with non- conforming adult uses, which are defined exclusively in relation to the content of the communicative material being distributed,’ are subject to the following amortization rules: Non-conforming Adult Use Principal or Accessory: Adult uses which are classified as legal non-conforming uses may continue in accordance with the provision of this chapter, except that any such non-conforming use shall be terminated and become illegal on or after 31 December 1991." Id. at A-33. The evidence at trial plainly indicated that if the city were required to make the showing of adverse secondary effects required to amortize out of existence any non-conforming use, other than an adult use, they would not have been able to make such a showing. Edward Thurston, Senior Appraiser at the Anoka County Assessor’s Office testified that in April of 1991, after the bookstore * As already noted, supra, under the terms of the definitions in Section 9.02 of the Ordinance, set forth in the Appendix at A-17 - A-18; the term “adult uses” are defined solely by “an emphasis on the presentation, display, depiction or description of ‘specified sexual activities’ or ‘specified anatomical areas’ which are capable of being seen by members of the public.” Thus, theaters, bookstores, and video arcades become adult uses solely by reference to the content of the communicative materials which they distribute or display. 7 had been in existence for a year, a group of Ramsey residents from the Riverside West Plat, where the bookstore is located, petitioned the Ramsey City Council, sitting as a special board of review, for a 25 percent reduction in their property taxes, based upon the alieged increase in crime and decline in property values caused by the presence of Petitioners’ bookstore (T.25). The City Council, acting as Board of Review, granted the request, (T.27). In response thereto, Thurston in fact undertook an objective study to determine whether any factual basis existed for a conclusion that Petitioners’ bookstore had caused an increase in crime and decline in property values. Thurston testified that he examined all the sales activity in the area before and after the establishment of the bookstore; that he talked to the Ramsey City Assessor, reviewed Certificates of Real Estate Value filed in the Anoka County Assessor’s office; conferred with other city officials; and conferred with the Ramsey Police Chief, concerning any alleged increase in crime (T.27). He concluded that there was absolutely no evidence to support the alleged reduction in property values, and petitioned the Anoka County Board of Equalization, consisting of the Anoka County Board of Commissioners or their designees, to rescind the action (T. 28). After an objective review of the evidence, the Special Board of Equalization rescinded the recommendation and followed Thurstons’ advice (T.34). Thurston in fact testified that the evidence indicated that, if anything, property values in the area surrounding Appellants’ bookstore increased during the year that his bookstore was there (T.36). The District Court specifically found that there was no evidence that Appellants’ bookstore had in fact contributed to a decline in property values. See Appendix at A-459, 800 F. Supp. at 820, n.2.‘ Likewise, the record was devoid of any showing that the bookstore had caused an increase in crime in the surrounding neighborhood. The city’s planning consultant, who drafted the ordinancs, testified at trial that he specifically inquired as to all complaints of criminal activity surrounding Petitioners’ store, for the purpose of establishing if there was a correlation between the store and crime within the city of Ramsey (T. 235 - 236). He conceded that virtually all of the reports that he received conceming criminal activity dealt with complaints from Petitioners conceming picketers surrounding the store, or complaints about protesters conceming Petitioners’ conduct towards them. He conceded that the evidence did not show any increase in criminal activity as a result of the presence of the bookstore (T. 236 - T. 242). The undisputed testimony at trial was that the impact of the ordinance was to relegate adult businesses tc an area consisting of approximately 2.5 percent of the total land area in the City of Ramsey (T. 435), virtually all of which is vacant, unplatted land.° * A record of the proceedings, both before the Ramsey City Council and before the Board of Adjustments reflecting the granting and subsequent reversal of the decrease in property taxes are set forth in the Appendix at A-356 - A-368. * In his testimony, Petitioners’ witness Brad Bjorklund testified that he was unable to find a single building in the City of Ramsey which complied with the trang he tamer ig se en Respondent's expert witness, Alan rixius, testified that one of the sites included in the permitted zone contains an cunteuch ea tnas ene cel etniai a 509), but basically conceded unless one was willing to purchase vacant land and build from scratch, one could not locate within the city of Ramnsey consistent with the ordinance (T.524). He further conceded thai with the exception of a single platted lot above the Brooks Superetie, which had already been approved for development of an off-sale liquor store (T. 507), two lots in an industrial park, and possibly some single family home lots, all of the permitted area for aduit uses was unplatted land, which 9 This meant that before any adult business could, as a practical matter, locate anywhere within the City of Ramsey, it would have to buy vacant land, and subdivide that land, pursuant to the requirements of the Ramsey subdivision ordinance, which set forth in the Appendix at A-385 - A-450.° Under the terms of that ordinance, one must first submit a sketch plan for the subdivision, and obtain Planning Commission and City Council approval thereof’ submit a preliminary plat, and again obtain both Planning Commission and City Council approval,’ and submit a final plat, and again obtaining Planning Commission and City Council approval.’ The standards by which the City Council and Planning Commission are to judge a proposed subdivision are set forth in Section 9.50.31, Appendix at A-410 as follows: "The planning commission in its review of a preliminary plat shall determine whether the proposed subdivision is in conformity with the city would have to be subdivided. * In his testimony, Respondent's witness Hartley testified that one could avoid the requirements of the subdivision ordinance by buying « single S-acre tract (T.356). The plain language of the subdivision ordinance that not to be the case. In particular, Section 9.50.01, Subd. 3, provides, in pertinent part: “No permit shall be issued for the erection of any building on any tract of land described by metes and bounds and consisting of less than 20 acres and having the width of less than 500 feet.” Thus, even the purchase of a 5-acre tract would require compliance with the subdivision ordinance. See Appendix at A-388. ” See Section 9.50.02, Subd. |, Appendix at A-388 - A-391. * See Section 9.50.03, Subd. 1, Appendix at A-392 - A-394. ” See Section 9.50.04, Subds. | and 2, Appendix at A.71 - A.72. 10 code and shall take into consideration the requirements of the community and the best use of the land.” Thus, in order for an adult use to locate any where within the City of Ramsey, the same municipal bodies which specifically found that adult uses cause a decline in property values, and cause an increase in sex crime such as “rape, prostitution, child molestation, indecent exposure, and other lewd and lascivious behavior"”’ must now find that such an adult use would be consistent with "the requirements of the community and the best use of the land.""' Even if that hurdle were overcome, the adult use owner would be left with a vacant lot, far off any commercial streets, with no surrounding businesses. In his testimony Robert Bonynge, 8 years an adult bookstore owner, stated that, in order to survive economically, an adult bookstore must be located in an area with numerous people, good vehicular and pedestrian traffic, and to be close to other businesses (T.569). He testified that the only place within the City of Ramsey which could meet those requirements would be along Highway 10 (T.571). Of the sites available within the City of Ramsey, Bonynge testified that he © See the City Council's findings upon enacting the ordinance, set forth at Appendix at A-70. "! In his testimony, former City Administrator Hartley admitted that such was the case (T.360). In addition, it should be noted that Section 9.50.03, Subd. le, set forth in the Appendix at A-392 - A393, requires a public hearing on any preliminary plat. It is obvious that any public hearing calling for a subdivision, in order to establish an adult entertainment use would engender the type of anti- pornography hysteria plainly evident in the public hearing held prior to the adoption of the ordinance in question. A transcript of that hearing is set forth in the Appendix at A-97 - A-162. 11 would not pay 5 cents for those locations, certainly not the $100,000.00 to $150,000.00 required to acquire and develop them.’ Bonynge estimated that an adult business who attempted to locate in such locations would be out of business within 4 to 6 months (T.571). ARGUMENT 1 THE EIGHTH CIRCUIT OPINION UPHOLDING THE DISPARITY IN THE TWO AMORTIZATION PROVISIONS, ONE FOR NON- CONFORMING ADULT USES, DEFINED BY CONTENT ALONE, AND ALL OTHER USES, IS AT ODDS WITH APPLICABLE DECISIONS OF THIS COURT AND OF OTHER COURTS OF APPEALS, WITHIN THE MEANING OF RULE 10.1 OF THE SUPREME COURT RULES. As already noted, supra, under Ramsey City Ordinance Section 9.01.11, Subd. 2, all non-conforming uses, other than adult uses, defined solely by virtue of content, are permitted to remain in existence, unless and until an affirmative showing is made that such uses jeopardize public health, safety, or welfare, or, in other words, actually cause adverse secondary effects. By contrast, under Section 9.11.19, Subd. 5, non-conforming adult uses, defined solely by virtue of content, a required to go out of existence in a period slightly over one year. The Eighth Circuit opinion upholding this distinction violates both decisions of this Court, and is in conflict with applicable decisions of this Court and other Courts of Appeals. In rejecting Petitioners’ argument concerning the disparity between the two amortization provisions, the Eighth Circuit stated: "2 In his testimony, Brixius asserted that one could acquire and develop vacant land for an adult bookstore, for between $123,000.00 and $173,000.00 (T.497). 12 "In a related argument, Holmberg contends the face of the ordinance ‘plainly reflects an intent to censor on the basis of content, rather than [a] concen over secondary effects’ because the ordinance treats his non-conforming sexually oriented business differently from other non- conforming uses in the city. Holmberg points out correctly that the ordinance permits non- conforming uses that do not deal in sexually explicit materials to remain in their current location until the city produces ‘documented stud[ies] and evidence’ conceming adverse secondary effects. Conversely, Holmberg contends business must relocate without requiring the city to make a similar showing. Holmberg’s argument that the ordinance relieves the City of the burden to establish its substantial interests in the ordinances provisions targeting the secondary effects of sexually oriented businesses is legally frivolous. In our view Holmberg simply ignores the District Court’s findings that the city enacted the ordinance on the strength of thorough research, public hearings, documented studies, and considered deliberations, and stubbomly argues the city must document its substantial interest for localized studies and evidence showing that secondary effects actually exist. Under the First Amendment, the city was not required ’to conduct new studies or produce new evidence independent of that already generated by other cities’ before enacting an ordinance that lessens sexually oriented businesses’ secondary effects. Renton, 475 U.S. at Sl, 106 S.Ct. at 931. When the ordinance was passed, the City Council had reliable evidence before it that business like Holmberg’s produce undesirable side effects. 13 Thus, the ordinance’s provisions requiring Holmberg to relocate his business represented a legitimate governmental response to a substantial interest, not content-based regulation.” Appendix at A-513 - A-5KM, 12 F. 3d at 43-144. The Eighth Circuit’s conclusion conflicts with both applicable decisions from other circuits and with applicable decisions from this Court in numerous respects: First of all, reliance upon the language of this Court in Renton to the effect that the city was not required to conduct new studies on the effect of Holmberg’s business, and was permitted to rely upon studies conducted in other jurisdictions ignores the fact that both Renton and the earlier case of Young v. American Mini Theaters, 427 U.S. 50 (1976), dealt with situations in which cities were considering only prospective ordinances governing location of future businesses, not the elimination of existing businesses through amortization provisions. Justice Stevens, in his plurality opinion in Young specifically noted the difference when he stated the following: "The situation would be quite different if the ordinance had the effect of suppressing, or greatly restricting access to, lawful speech. Here, however, the District Court specifically found that *[t}he Ordinances do affect the operation of existing establishments but only the location of new ones.” The distinction was also noted by the Ninth Circuit in Walnut Properties, Inc. v. City of Whittier, 861 F. 2d 1102 (9th Cir. 1988), in which that court noted: 14 "[T}he plurality in Young relied on the fact that the ordinance would ‘not affect the operation of existing estabiishments but only the location of new ones.’ [Citation omitted.) As we have previously noted, ‘there is little doubt that a majority would have questioned an ordinance putting all existing theaters out of business.’ [Citation omitted.) Yet that is precisely the effect of Whittier’s ordinance. Enforcement of the ordinance as to Walnut’s theater would force the only existing adult theater in Whittier to close at its present location with no definite prospect of a place to relocate. This effect makes the case markedly different from Young where the Detroit ordinance applied prospectively only and did not affect existing theaters. The Eighth Circuit in Alexander distinguished the Minneapolis ordinance at issue there from the Detroit one in Young on a similar basis, noting that enforcement of the Minneapolis Ordinance would force relocation of all five adult theaters in the city and between 7 and 9 of the 10 adult bookstores [citation omitted. ] We note that there is nothing in the Renton opinion which indicates the Court would uphold an ordinance which would eliminate all adult businesses in existence at the time the ordinance was passed. The Court simply was not faced with those circumstances in that case. The ordinance at issue in Renton was directed towards adult theaters only, and at the time the ordinance was passed no adult theaters were located in Renton. [Citation omitted.] Thus, it had a prospective effect only.” Id. at 110. As a result, while it may be perfectly reasonable, as was 15 the case in Renton, for a city which has no existing adult business and wishes merely to limit the location of future adult businesses, to rely upon the studies from other jurisdictions as to adverse secondary effects, the total elimination of existing businesses is an altogether different proposition. Clearly, if an existing businesses, particularly one of long standing, is not shown to cause any adverse secondary effects, and the city chooses to force it to go out of business at its present location, simply because other businesses and other cities may be shown to cause such effects, then it is clear that the content-based distinction is just that, and secondary effects justification is clearly pretextual. Secondly, the ordinance, on its face, is not limited to those uses for which such "documented study” would justify amortization. As already noted, supra, Section 9.11.19, Subd. 5 amortizes out of existence, not only adult uses-principal, but also adult uses-accessory, defined in section, 9.02, as establishments having more than 10 percent of their stock in trade or floor space allocated to or more than 20 percent of its gross receipts derived from, any adult use. Thus, a video store having one percent of the floor space or stock devoted to an adults-only video section, if rendered non-conforming, must go out of existence, regardless of any showing of secondary effects. Likewise, if the video store’s floor space amounted to ll percent, it would be an adult use principal and likewise required to be amortized out of existence. The exhibits relied upon for the "documented study” by Licht and the City Council were all received in evidence, and the most pertinent are set forth in the Appendix at A-74 - A-303. Examination of all of them will plainly reveal that absolutely no evidence was presented to the Council or to Licht that general video stores having 1, ll, 15 or even 20 percent devoted to adult uses caused any adverse secondary effects whatsoever. 16 Nonetheless, amortization of these uses is compelled by Section 9.11.19, Subd. 5. Those types of restrictions on small adult uses have been repeatedly invalidated. See, for example, World Wide Video v. City of Tukwila, 117 Wash. 2d 382, (1991) cert. denied, 112 S.Ct. 1672 (1992); Kuhns v. Board of Supervisors, 128 Cal. App. 3d 369, (1982), invalidating a requirement that a bookstore have no more than 20 percent of its stock in trade in adult materials, in order to comply with a similar zoning ordinance; Wolff v. City of Monticello, 802 F. Supp. 1568 (D. Minn. 1992), specifically invalidating a licensing requirement for adult-use secondary, with the identical definition, on the ground that no showing had been made that such uses caused any of the adverse secondary effects set forth in Renton; and Tollis v. San Bernardino County, 827 F. 2d 1329 (9th Cir. 1987), invalidating an ordinance in which the single showing of an adult film would render the theater an "adult use.” Thirdly, if the concern were control of adverse secondary effects, Section 9.01.11, Subd. 2m provides an absolutely content- neutral method of achieving such an end. If in fact a non- conforming adult use were posing a threat to the health, safety, and general welfare of the community, the absolutely content-neutral provisions of that ordinance would absolutely permit appropriate action by the City Council to amortize the non-conforming use out of existence. The only conceivable reason for a separate provision, amortizing adult uses out of existence, regardless of whether or not they cause secondary effects, would be to engage in content-based censorship. This Court has plainly indicated that the presence of a content-neutral alternative method of dealing with adverse secondary effects clearly undermines any asserted justification for a content-based distinction. In R.A.V. v. City of St. Paul, 17 __U.S.__, 12 S.Ct. 2538, 120 L.Ed. 2d 305 (1992), this Court invalidated the "cross buming” ordinance of the City of St. Paul, despite asserted justifications that the purpose of the ordinance was to combat adverse secondary effects of speech-related conduct, and to assist victims of discrimination. In declaring the ordinance invalid, Justice Scalia, writing for the majority, stated the following: "The existence of adequate content-neutral alternatives thus ‘undercut[s] significantly’ any defense of such a statute, [citation omitted.], casting considerable doubt on the government’s protestations that ‘the asserted justification is in fact an accurate description of the purpose and effect of the law,’ [citations omitted.]”" 112 S.Ct. at 2550. Likewise, the existence of the plainly adequate content- neutral alternative contained in Section 9.01.11, Subd. 2m plainly exposes as pretextual the asserted justification for the content-based provisions in Section 9.11.19, Subd. 5. Finally, the Eighth Circuit opinion ignores what is perhaps the most significant difference between the two amortization provisions. Because the general amortization provision in Section 9.01.11, Subd. 2m requires the city to make an affirmative showing of a threat to health, safety, and welfare, it gives to every non- conforming use, other than an adult use, the right to litigate whether such threat is actually caused. By contrast, no such right to litigate is granted to adult uses, solely by virtue of the content of the material they sell or exhibit; adverse secondary effects are 18 Ai Wl Oo nce conclusively presumed by virtue of such content.’® Even apart from the compelling First Amendment considerations present in the instant case, this Court has repeatedly invalidated such conclusive presumptions. In Vlandis v. Kline, 412 U.S. 441 (1973), this Court invalidated an irrebuttable presumption of non-residency for the purpose of qualifying reduced tuition at a state university. In so doing the Court stated: "(PJermanent irrebuttable presumptions have long been disfavored under the Due Process Clauses of the Fifth and Fourteenth Amendments.” 412 U.S. at 446. The Court went on to state: "(I]t is forbidden by the Due Process Clause to deny an individual the resident rates on the basis of a permanent and irrebuttable presumption of nonresidence, when that presumption is not necessarily or universally true in fact, and when the state has reasonable altemative means of making the crucial determination." Id. at 452. This Court reiterated the principle in Stanley v. Dlinois, 405 U.S. 645 (1972), and Cleveland Board of Education v. LeFleur, 414 U.S. 632 (1974). Similarly, the evidence in this case plainly indicates that the presumption that adult bookstores pose a threat to the health, safety, and welfare, is neither necessarily nor universally true. The District Court’s own findings plainly indicate that the evidence at trial established "no evidence of decreased property values in the 13 Indeed, the District Court expressly made such a finding. See Appendix at A-458, 800 F. Supp. at 820. 19 vicinity of the adult business (footnote omitted).” Appendix at A- 459, 800 F. Supp. at 820. The evidence also indicated that, apart from complaints between protesters and Petitioner Larry Holmberg conceming the conduct of picketing, there was no evidence of increased criminal activity in the surrounding neighborhood. Appendix at A-456, 800 F. Supp. at 819." Thus, far from being “legally frivolous,” Petitioners’ position on the invalidity of the disparity between the two amortization provisions is clearly compelled by applicable decisions of this Court, as well as decisions from other Courts of Appeals. Il. THE DECISION UPHOLDING THE ORDINANCE ON THE ISSUE OF REASONABLE ALTERNATIVE AVENUES OF COMMUNICATION IS “ To be sure, the District Court did find adverse secondary effects to have occurred in shat an administrative law judge determined that high risk sexual conduct took place between customers on the premises. See Appendix at A-459, 800 F. Supp. at 820. However, this finding hardly justifies the enactment of the ordinance for at least the following reasons: First of all, there is no evidence that the City of Ramsey relied on illegal sexual activity between customers on premises as an adverse “secondary effect” at the time it enacted the ordinance, thus precluding it from advancing it as a justification post-hoc. Compare CLR Corp. v. Henline, 520 F. Supp. 760, 768 (W.D. Mich. 1981), aff'd, 702 F. 2d 637 (6th Cir. 1983). Secondly, because illegal sexual conduct between customers on premises is just as illegal and unhealthy regardless of where the store is located, the alleged “secondary effect” is irrelevant to zoning. Indeed, one of the very reports relied upon by Licht made exactly the same point concerning on-premises prostitution in health clubs. See Appendix at A-250. Finally, the fact that illegal sexual activity took place between customers behind closed doors on the premises is plainly obviated by a state court’s issuance, during the pendency of the District Court proceedings, of an order compelling Petitioner to remove the doors from his motion picture viewing booth. See Appendix at A-47] - A-474. Compare Cascade News, Inc. v. City of Cleveland, Case No. 1:92CV 0758 (N.D. Ohio, 1992), a copy of which is set forth in the Appendix at A-494 A-500. 20 ALSO IN CONFLICT WITH DECISIONS OF THIS COURT AND WITH OTHER UNITED STATES COURTS OF APPEALS. A. THE EIGHTH CIRCUIT OPINION WAS AT VARIANCE WITH APPLICABLE DECISIONS OF THIS COURT WHEN IT UPHELD AN ORDINANCE WHICH LEAVES PETITIONERS’ RIGHT TO RELOCATE THEIR ADULT BUSINESS ENTIRELY IN THE DISCRETION OF THE RAMSEY CITY COUNCIL. In Young v. American Mini-Theatres, Inc., supra, 427 U.S. 50 (1976), both the plurality opinion of Justice Stevens and the concurring opinion of Justice Powell upheld Detroit’s adult entertainment zoning ordinance, only upon a factual showing being made that the ordinance would not have an overall negative impact upon the continuing availability of adult entertainment to the residents of the City of Detroit. Writing for the plurality, Justice Stevens stated: "The ordinances are not challenged on the ground that they impose a limit on the total of adult theaters which may operate in the city of Detroit. There is no claim that distributors or exhibitors of adult films are denied access to the market or, conversely, that the viewing public is unable to satisfy its appetite for sexually explicit fare. Viewed as an entity, the market for this commodity is essentially unrestrained.” 427 U.S. at 62. In rejecting Petitioners’ argument that the ordinance in the instant case would have the effect of suppressing or greatly reducing access to lawfully sexually explicit speech, the Eighth Circuit asserted that adult businesses “have access to 35 percent of 21 the city’s land zoned for commercial uses, which includes both developed and undeveloped land." Appendix at A-515, 12 F. 3d at 144. In point of fact, the undisputed evidence in the District Court was that virtually all of the land available was undeveloped, vacant farm land. Petitioners’ witness Bradley Bjorklund testified that he was unable to find a single building in the City of Ramsey which complied with the provisions of Ordinance No. 90-23 (T. 149). Respondent's expert witness, Alan Brixus, fundamentally did not dispute this claim, but testified that one of the sites included in the permitted zone contained an abandoned farm house and some out buildings (T. 509). However, he conceded that unless one was willing to purchase vacant land and build from scratch, it was impossible to locate an adult entertainment business in the City of Ramsey consistent with the requirements of the ordinance (T. 524). Respondent’s own witness conceded that with the exception of a single platted lot, above the Brooks Superette, which had already been approved for development as an off-sale liquor store (T. 507), and two platted lots and industrial park, all of the permitted area for adult uses under the ordinance was vacant, unplatted land which would have to be subdivided. As already noted, supra, in order to approve a proposed subdivision, the Planning Commission and City Council are required "to take into consideration the requirements of a community and best use of the land." Ramsey Ordinance Section 9.50.31, Appendix at A-410. Such a situation clearly violates this Court’s repeatedly pronouncements prohibiting First Amendment rights being left to the unfettered discretion of governmental officials, without definite, objective standards to guide that discretion. See, for example, 22 Shuttlesworth_v. City of Birmingham, 395 U.S. 147 (1969); Southeastem Promotions, Lid. v. Conrad, 420 U.S. 546 (1975); and FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990). The Eighth Circuit rejected this argument, by asserting: "As the City reads the ordinance, sexually oriented businesses can locate anywhere within the authorized commercial zones, provides, the location is at least 1,000 feet from the protected uses. The City thus concedes that it could not use the challenged language to deny Holmberg’s request to subdivide a larger tract of land because Holmberg would not relocate his sexually oriented business on the subdivided land. We conclude the city’s interpretation alleviates Holmberg’s concem." Appendix at A.7, 12 F. 3d at 144 However, nothing on the face of the subdivision ordinance mandates the "interpretation" advanced by Respondent in the face of constitutional challenge. What both the City and the Eighth Circuit therefore rely upon is the good faith of city officials not to exercise the discretion given them in the subdivision ordinance to deny Appellants their constitutional rights. It is precisely such reliance which this Court has repeatedly held to be constitutionally impermissible. In City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, (1988), this Court stated: "The city asks us to presume that the mayor will deny a permit application only for reasons related to the health, safety, or welfare of Lakewood citizens, and that additional terms and conditions will be imposed only for similar reasons. This presumes the Mayor will act in good faith and 23 adhere to standards absent from the statute's face. But this is the very presumption that the doctrine forbidding unbridled discretion disallows. [Citation omitted.) The doctrine requires that the limits that the City claims are implicit in its law be made explicit by textual incorporation, binding judicial or administrative construction, or well- established practice. [Citations omitted.} This Court will not write nonbinding limits into a silent State statute (footnote omitted).” The principle was most recently reaffirmed in Forsyth County, Ga. _v. Nationalist Movement, __ U.S.___, ll2 S.Ct. 2395, 120 L.Ed. 2d 101 (1992), in which this Court invalidated a county parade permit ordinance, on the ground of excessive discretion. In so doing, this Court stated: "The District Court’s finding that in this instance the Forsyth County Administrator applied legitimate, content-neutral criteria, even if correct, is irrelevant to this facial challenge. Facial attacks on the discretion granted a decision maker are not dependent on the facts surrounding any particular decision [citation omitted.] ‘It is not merely the sporadic abuse of power by the censor but the pervasive threat inherent in its very existence that constitutes the danger to freedom of discussion.’ [Citation omitted.] Accordingly, the success of a facial challenge on the grounds that an ordinance delegates overly broad discretion to the decision maker rests not on whether the administrator has exercised his discretion in a content-based manner, but whether there is anything in the ordinance preventing him from doing so.” 112 S.Ct. at 2395, at 2403, n.10. eS ee es Likewise, because nothing on the face of the subdivision ordinance prevents its being applied in a censorial manner, the Eighth Circuit Opinion upholding the validity of the zoning scheme is inconsistent with prior opinions of this Court, thus justifying a grant of certiorari. B. EVEN APART FROM THE ISSUE OF UNBRIDLED DISCRETION, THE AVAILABLE REAL ESTATE FOR THE LOCATION OF ADULT BUSINESSES DOES NOT SATISFY CONSTITUTIONAL REQUIREMENTS, ESTABLISHED BY THIS COURT AND OTHER UNITED STATES COURTS OF APPEALS. Even assuming the ordinance gave Petitioners the right to locate, as a matter of right, in the permitted area, leaving nothing to the discretion of the City Council, the ordinance would still fall short of the constitutional requirement established in Young that the market in adult entertainment be essentially restrained. As already noted, supra, the land available for adult entertainment under the ordinance consists of approximately 2.5 percent of the entire land area, all of which is vacant, undeveloped farm land, and an abandoned airport, far off the main commercial highway of the city. At least two other courts of appeals have held that such a zoning scheme fails to meet minimal constitutional standards. In Woodall v. City of El Paso, 959 F. 2d 1305 (Sth Cir. 1992), held that in order for an adult entertainment zoning ordinance to pass constitutional muster, under the First Amendment, the land available for relocation of adult businesses must be both legally and physically suitable for adult businesses. In Woodall, the court noted that the Renton Court contemplated the existence of a market "in which businesses could purchase or lease real property on which business could be conducted. (Emphasis 25 supplied)” 959 F. 2d at 1306. it is undisputed that the ordinance at issue in the instant case does not provide such a market. The city’s own witnesses, including its expert witness Mr. Brixius, conceded that an individual wishing to lease a commercial building for an adult entertainment use could find no such use legally permitted anywhere in the City of Ramsey, because the deliberate choices of the Ramsey City Council excluded all such uses. However, even more instructive on the issue of the sufficiency of locations is the more recent decision of Topanga Press, Inc. v. City of Los Angeles, 989 F. 2d 1524 (9th Cir. 1993), cert denied, 61 U.S.L.W. 3690 (April 18, 1994). The Topanga court rejected the distinction made in Woodall between legal and physical availability, on the one hand, and economic availability, on the other hand stating: "The problem...is that the distinction between economically unsuitably and physically or practically unsuitable land is difficult to maintain. Nearly all forms of physical and legal unsuitability may be couched in terms of economic unsuitability. Conversely, problems of economic unsuitability may be couched in terms of physical unsuitability. For example, in the instant case, some of the definitionally ‘available’ land is currently used as runways for the Los Angeles airport. One could argue that this land is physically unsuitable for a business. On the other hand, one could argue that it is merely economically unsuitable, since there is nothing to prevent an adult business from physically relocating to this site; rather it is being prevented by a consideration of the cost of tearing down part of an air strip and then building a store front.” 26 : The Topanga court resolved the distinction as follows: "[W]e do not think that Renton forbids a court to consider economics when evaluating whether a particular relocation site is in fact part of the real estate market. For purposes of Renton, the distinction is between consideration of economic impact within an actual business real estate market and consideration of costs to determine whether a specific relocation site is part of a relevant market (emphasis in original). A court may consider the former, but it may not consider the latter when determining whether a specific site is reasonably suitable for the operation of a business.” Id. at 1530. In setting forth the factors which determine whether or not land is in fact part of the actual real estate market which may be considered, the court in Topanga examined the decision of the Eighth Circuit in Alexander v. City of Minneapolis, 928 F. 2d 278 (8th Cir. 1991) (Alexander II); the decision in Dumas v. City of Dallas, 648 F. Supp. 1061 (N.D. Tex. 1986), aff'd, 837 F. 2d 1298 (Sth Cir. 1988), aff'd, in part, vacated in part, 493 U.S. 215, (1990); and the earlier Fifth Circuit decision in Basiardanes v. City of Galveston, 682 F. 2d 1203 (Sth Cir. 1982). The court in Topanga then went on to hold: "The courts’ findings in these cases lead us to hold that a particular relocation site may be considered part of the relevant real estate market when the following conditions are met. First, although Renton stressed the fact the First Amendment only requires a relocation site to be potentially available, rather than actually available, the requirement of potentiality connotes genuine possibility...Here we need determine that property is not only ‘potentially’ available when it is 27 unreasonable to believe that it would ever become available to any commercial enterprise. Second and focusing our attention on the relocation sites which are in manufacturing or industrial zones, relocation sites that are reasonably accessible to the general public may also be part of the market. Third, areas in the manufacturing zones which have a proper infra- structure such as sidewalks, roads and lighting may be included in the market. Fourth, when a relocation site suits some generic commerical enterprise, although not every particular enterprise, it too may be said to be part of the real estate market. While it is constitutionally irrelevant whether relocation sites located in industrial or manufacturing zones suit the particular needs of adult business, potential sites must be reasonable relocation sites for some commercial enterprise before they can be considered part of the relevant market. Consequently whether one defines a warehouse, a swamp or a sewage treatment plant as physically or economically unsuitable, it is not reasonable to define these sites as part of the real estate market that any business would choose (foomote omitted, emphasis by the court).” Id. at 1531. It is clear that that virtually all of the real estate involved as potential relocation sites for Petitioner’s business fails the Topanga test of whether they are actually part of the relevant market. Obviously, farm land totally inaccessible by roads and the middle of an abandoned airport are hardly areas which it is reasonable to believe would ever be available to any commercial business. None of the area has the infrastructure spoken of in Topanga. Virtually none is a site which is reasonable for any 28 De ee es teiytnde Min commercial business to locate on. Clearly this Court should find that such real estate is constitutionally inadequate as a matter of law. CONCLUSION In Schad v. Borough of Mt. Ephraim, 452 U.S. 61 (1981), this Court held that it was constitutionally impermissible for a city legally to zone adult entertainment entirely out of a city. If, however, as here, a city is allowed to take a pre-existing adult business, absolutely lawful at its inception, amortize it out of existence based solely upon the content of publications sold, regardless of whether it causes secondary effects in fact, and then leave it no place to locate except vacant farm lands and abandoned airports at which no commercial business could survive, the city will have done exactly what this Court prohibited it from doing in Schad. For all of the foregoing reasons, the Petition for Writ of Certiorari should be granted. Respectfully submitted, Randall D.B. Tigue Attomey for Petitioner 2620 Nicollet Avenue Minneapolis, Minnesota 55408 (612) 874-9903 Dated: May 6, 1994. 29 ODN aA tt alte te an a APPENDIX INDEX Plaintiffs’ Fourth Amended Complaint ............. A-1 Text of pertinent part of Ramsey EN oven cut ke teceneececsseeed A-16 Defendant’s Answer to Plaintifs’ Fourth- Ee aes weuueeycessvesoeess A-57 Se PUES oS cca cccecescccsccnces A-62 Ramecy Ordinance 92-09 ... 0... ccc ccc ccc ccccces A-66 Findings of the Planning Commission in adopting Ordinance No. 90-23................000. A-68 Minutes of the Planning Commission of October 22, 1990 eeeeveeveveeeeeeeeeeeeeeeeeseees A-74 Report of David Licht on Ramsey Adult Use CR A-78 Transcript of public hearing, 5/2990 .............. A-97 Report of Attorney General's Working Group on the Regulation of Sexually Oriented DET TN ce we cb cob cee esse reccccccecece A-164 Adult Entertainment -- A 40-Acre Study GUA Dad ok ccs bPddweheebea ee terceccsces A-220 Licht memo seeking information, 6/8/90 .......... A-304 City’s adult use opportunity calculations........... A-305 Development costs, as estimated by City .......... A-307 A-i Findings of Administrative Law Judge in follow up 4flO/P1 ow... ccc cece eee eee eeeee EE ee Pee REE EWES OWE wee eres sere sucvccccccccccs Brad Bjorklund report on adult use locations in the City of Ramscy ........0cccccecccecees Text of Ramsey subdivision ordinance ............ District Court Findings of Fact, Conclusions of Law, and Order for Judgment, 8/17/92 .. 1... 6. eee ce eee eee Plaintiffs’ Motion for Amended Findings and Alternative Motion for Injunction Pending RIT ccc ccc ccc ctesccccceccccces Order of Anoka County District Court in City of Ramsey v. Amusement Center, Inc., GU Seer covcecccce Findings of Fact and Conclusions of Law i ‘ walk v in Cleveland's P.M., on the Boardwalk v. City of Cleveland, Case No. 1:92 Civ. 1412 UME Soccer ececeseveccccccecoees Memorandum and Order in Cascade News, Inc. y. City of Cleveland, Case No. 1:92 Civ. 0785 GUD. Cile, BRE). cccccccccccecctescccccess A-4ad Memorandum Opinion and Order on Plaintiffs Post-trial Motions, IIP/92 ..... 6... 6 ee eee eee eee A-501 Opinion and Appeal, United States Court of Appeals for the Eighth Circuit, 12/30/93 ........... A-509 Appellants’ Petition for Rehearing by the Panel with a suggestion for rehearing GAG, TE Sadbetes cecsceseesesescecocs A-517 Order Denying Petition for Rehearing and suggestion for rehearing en banc, 2/04 .......... A-520 Text of constitutional provisions involved .......... A-521 ; A-iii UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA FOURTH DIVISION David J. Schneider, Jr.; Garry Holmberg; Larry Holmberg; the Amusement Center, Inc., a Minnesota corporation, PLAINTIFFS’ FOURTH Plaintiffs, AMENDED COMPLAINT vs. File No. 4-90 Civ. 320 The City of Ramsey, a municipal corporation, Defendant. JURISDICTION 1. The jurisdiction of this Court is invoked under the laws of the United States, and in particular, Title 28 U.S. C. Sections 1343(3), 2201 and 2202; Title 42 U.S.C. Section 1983, and the Constitution of the United States, in particular, under the First and Fourteenth Amendments thereto, this being an action authorized by law to redress the deprivation under color of state law, statute, ordinance, regulation, custom and usage of rights, privileges, and immunities guaranteed to Plaintiffs under the Constitution of the United States. PARTIES 2. Plaintiff Larry Holmberg is a citizen of the United A-l States and of the State of Minnesota. He is the owner of real estate located within the City of Ramsey, County of Anoka, located at 6710 Highway 10 Northeast. He is the purchaser of an executory contract of the interest of Plaintiff Garry Holmberg in an adults-only bookstore at that location. Plaintiff Larry Holmberg reacquired his interest in the real estate as a result of the abandonment of an attempted purchase of said real estate by Plaintiff David J. Schneider, Jr. 3. Plaintiff Amusement Center, Inc., is a corporation organized under the laws of the State of Minnesota. Its sole officer and shareholder is plaintiff Larry Holmberg. It currently operates an adults-only bookstore located in the real estate owned by Plaintiff Larry Holmberg. 4. Defendant City of Ramsey is a municipal corporation, organized under the laws of the State of Minnesota. As such, it has the authority to enact municipal ordinances regulating the licensing and zoning of businesses, and to impose Criminal penalties to enforce such ordinances. CAUSE OF ACTION 5. On or about March 15, 1990, Plaintiff Garry Holmberg applied for and received from Defendant City of Ramsey a license to operate an amusement center at the building owned by Plaintiff at 6710 Highway 10 Northwest, Ramsey, Minnesota. A copy of said license is attached hereto as Exhibit A and incorporated by reference as fully set forth herein. 6. On or about April 19, 1990, pursuant to the license issued by Defendant City of Ramsey, Plaintiff Garry Holmberg opened an amusement center at said address, featuring coin-operated motion picture viewing machines for viewing of adults-only motion picture films on the premises. Also featured on the premises was the sale of adults-only books and magazines. A-2 7. On or about May 11, 1990, Plaintiff Garry Holmberg entered into an executory agreement to convey his interest in the adult bookstore business w Plaintiff Larry Holmberg, said agreement to become effective, upon the transfer of the license to operate said business to Larry Holmberg. 8. The foregoing activities engaged in by Plaintiffs Garry Holmberg and Larry Holmberg are entitled to protection under the First and Fourteenth Amendments to the Constitution of the United States. 9. The adult bookstore and entertainment center operated by Plaintiffs Garry Holmberg in the building owned by Plaintiff Larry Holmberg is the only building within Defendant City of Ramsey offering adults-only motion pictures for viewing on the premises and adults-only books and magazines. 10. On April 23, 1990, solely in response to the opening of the adult bookstore and amusement center on Plaintiffs’ premises, Defendant City of Ramsey adopted ordinance No. 90-7, a copy of which is attached hereto as Exhibit B and incorporated by reference as if fully set forth herein. 11. Said ordinance provided as follows: SECTION 1. PREAMBLE. Whereas, the Council finds that a business advertising itself as an ‘adult bookstores’ (sic) is contemplated doing business in the City of Ramsey in the City’s B-1 business district zone; and Whereas, the Council finds that proper planning for the citing of Adult Bookstore within the City is necessary in order to protect the City’s planning process and the health, safety and welfare of the city; and Whereas, the Council finds that an interim ordinance placing a moratorium on the sighting and/or use A-3 of any property within the City as an Adult Bookstore is necessary in order to permit the planning process to take place; and Whereas, the Council finds that it is necessary for an immediate preservation of the public peace, health, morals, safety and welfare that an emergency interim ordinance be adopted prohibiting the sighting, maintaining and operating of Adult Bookstore within the City pending completion of the planning process relating thereto. SECTION 2. AUTHORITY. This ordinance is adopted pursuant to thal authority granted the City in MSA 462.355 Subd. 4 entitled ‘Interim Ordinance’ and City Charter Provision Section 3.06 entitled ‘Emergency Ordinance’. SECTION 3. DEFINITIONS. a. ADULT BOOKSTORE. A business engaging in the barter, rental, or sale of items consisting of printed matter, slides, records, audio tapes, video tapes or motion picture film, if such shop is not open to the public generally but only to one or more classes of the public, excluding any minor by reason of age, or if a substantial or significant portion of such items are distinguished or characterized by an emphasis on the depiction or description of ‘specified sexual activities’ or “specified anatomical areas.” b. SPECIFIED ANATOMICAL AREAS: 1. Less than completely and opaquely covered human genitals, pubic region, buttocks, anus, or female breast(s) below a point immediately above the top of the areola; and, A-4 2. Human male genitals in a discemibly turgid state, even if completely and opaquely covered. c. SPECIFIED SEXUAL ACTIVITY: 1. Actual or simulated sexual intercourse, oral copulation, anal intercourse, oral-anal copulating, bestiality, direct physical stimulation of unclothed genitals, flagellation or torture in the context of the sexual relationship, or the use of excretory functions in the context of the sexual relationship and any of the following sexually-oriented acts or conduct; anilingus, buggery, pederasty, pedophilia, piguerism, sapphism, zooerasty; or 2. Clearly depicted human genitals in the state of sexual stimulation, arousal or tumescence; or 3. Use of human or animal ejaculation, sodomy, oral copulation, coitus, or masturbation; or 4. Fondling or touching of nude human genitals, pubic region, buttocks, or female breasts; or 5. Situations involving a person or persons, any of whom are nude, clad in undergarments or in sexually revealing costumes, and who are engaged in binding or other physical restraint of any such person; or 6. Erotic or lewd touching, fondling or other sexually-oriented contact with any animal; or 7. Human excretion, urination, menstruation, vaginal or anal irrigation. SECTION 4. PUBLIC HEARING AND STUDY. The City Council hereby directs city staff to study the citing of each adult bookstore as above defined and schedule a public hearing for May 29, 1990, at which time A-5 public comment will be accepted and received regarding the placement and location of Adult Bookstores within the City. SECTION 5. PROHIBITION. During the term of this ordinance no adult bookstores shall be cited, operated or maintained or otherwise do business within the City of Ramsey. SECTION 6. EFFECTIVE DATE. This Emergency Ordinance becomes effective upon it (sic) passage and shall be in effect for a period of 180 days from the date hereof. SECTION 7. VIOLATION. A violation of any portion of this ordinance shall be construed a misdemeanor punishable by imprisonment for up to 90 days and a fine of $700.00, or both. Each day that a violation occurs shall be considered a separate offense. 12. Said ordinance took effect on April 24, 1990. 13. On May 11, 1990, this Court issued a temporary restraining order prohibiting enforcement of Ramsey Ordinance No. 90-7, pending a hearing on a motion for preliminary injunction. 14. Subsequent to the issuance of the Temporary Restraining Order, Plaintiff Larry Holmberg acquired the interests of Plaintiffs Schneider and Garry Holmberg, and incorporated the operation of his business as Plaintiff Amusement Center, Inc. 15. On May 22, 1990, Defendant amended Ramsey Ordinance 90-7 and substituted in its place, Ramsey Ordinance 90-9, a copy of which is attached hereto as Exhibit C, and incorporated by reference as if fully set forth herein. 16. Said ordinance, by its own terms, expired on November 18, 1990. A-6 17. On November 13, 1990, prior to the expiration of Ordinance No. 90-9, the city council of Defendant City of Ramsey enacted Ordinance No. 90-23, a copy of which is attached hereto as Exhibit D, and incorporated by reference as if fully set forth herein, which ordinance constituted a permanent ordinance regulating the location of adult entertainment within the City of Ramsey. 18. Section 2 of Ordinance No. 90-23 amends Section 9.02 of the Ramsey City Code to define "adult uses” as follows: "Adult uses include adult bookstores, adult motion picture theaters, adult motion picture rental, adult mini-motion picture theaters, adult massage parlors, adult steam room bathhouse/sauna facilities, adult companionship establishments, adult rap/conversation parlors, adult health/sports clubs, adult cabarets, adult novelty businesses, adult motion picture arcades, adult modeling studios, adult hotels/motels, adult body painting studios, and other premises, enterprises, establishments, or businesses open to some or all members of the public, at which or in which there is an emphasis on the presentation, display, depiction or description of ‘specific sexual activities’ or ‘specified anatomical areas’ which are capable of being seen by members of the public.” 19. An "adult bookstore” is defined in the same section of the code, under Ordinance 90-23 as follows: "A building or portion of a building used for the barter, rental or sale of items consisting of printed matter, pictures, slides, records, audio tape, or motion picture film if such building or portion of a building is not open to the public generally that only to one or more classes of the public extending any minor by reason of age or if a A-7 substantial or significant portion of such items are distinguished or characterized by an emphasis on the depiction of a description of ‘specified sexual activities’ or ‘specified anatomical areas.’” 20. The same section of the ordinance defines an "adult motion picture arcade” as follows: "Any place to which the public is permitted or invited wherein coin or slug-Operated or electronically, electrically or mechanically controlled or operated still or motion picture machines, projectors or other image-producing devices are maintained to show images to five or fewer persons per machine at any one time, and where the images so displayed are distinguished or characterized by an emphasis of depicting or describing ‘specified sexual activities’ or ‘specified anatomical areas’.” 21. The same section defines the term "adult use -- novelty business” as follows: "A business which has as a principal activity the sale of devices which stimulate human genitals or devices which are designed for sexual stimulation.” 22. Section 8 of the ordinance amends Section 9.10 of the Ramsey Code of Ordinances t© impose the following restrictions on adult businesses within the City of Ramsey: a. Adult use-principal shall be located at least 1,000 radial feet, as measured in a straight line from the closest point of the property line of the building upon which the adult use-principle is located to the property line of: 1. Residentially zoned property. 2. A licensed day care center. 3. A public or private educational facility Classified as an elementary, junior high or senior A-8 high. 4. A public library. 5. A public park. 6. Another adult use - principal. 7. An on-sale liquor establishment. b. Adult use-principal activities as defined in this chapter shall be classified as one use. No two adult uses-principal shall be located in the same building or upon the same property and each shall be subject to this section. é. Adult use-principal shall adhere to the following signing regulations. 1. Sign messages shall be generic in nature and shall only identify the type of business which is being conducted. 2. Sign messages shall not contained material Classified as advertising. 3. Signs shall comply with the requirements of size and number for the district in which they are located.” 23. Plaintiffs’ current operation of their adults-only bookstore at its current location violates the ordinance in at least the following respects: a. Plaintiffs’ current operation features three separate and distinct adult uses, to-wit: an adults-only bookstore, an adults- only movie arcade, and an adult business--noveities, in the same building, in violation of Section 9.1119, Subd. 3b. b. The location of the premises violates Subd. 3(a) of the same section, in that it is within 1,000 feet of residentially zoned property and a license day care center. 24. Plaintiffs’ current operation is a lawful A-9 non-conforming use, in that it was lawfully in operation prior to the enactment of either Ordinance Nos. 90-7, 90-9, or 90-23. As such, Plaintiffs’ operation is governed by the provisions of Section 9.11.19 of Ordinance No. 90-23, which provides as follows: "Adult uses which are classified as legal non-conforming uses may continue in accordance with the provision of this chapter, except that any such non-conforming use shall be terminated and become illegal on and after 31 December 1991. To the extent possible, the City shall attempt to identify all such uses which become classified as non-conforming under the provisions of this subdivision and shall notify the proper owners and operators of such uses in writing of the change in status and the terms and conditions which apply. The owner of any property on which an adult use is located may apply to the Council for an extension of the termination date. Any such application shall be in writing and received by the City no later than 1 October 1991. Failure to submit a timely extension application shall constitute a waiver of the right to request an exception, if upon the council’s determination, the applicant demonstrates that the amortization period is an unreasonable burden upon the business and does not allow adequate time to recover a reasonable retum upon the business investment. The applicant shall have the burden of proof to demonstrate hardship with the established termination date and also the time required for an extension. In making its decision, the Council may consider any factor relevant to the issue, including but not limited to: (a) The degree or magnitude of the threat to public health, safety and general welfare posed by the secondary A-10 te i i aly RP Tis toh 8 al Rae tht A Se Sam. impacts of the operation. (b) The length of time that the adult use has been operating. (c) The ease by which the property could be converted into a conforming use. (d) The nature and character of the surrounding neighborhood. (e) The value and condition of the improvements on the property. (f) The amount of the applicant’s investment in the business. (g) The amount of investment already realized. (h) The cost of relocating the adult use.” 25. By contrast, under Ramsey Code of Ordinances Section 9.11, also adopted as part of Ordinance No. 90-23, all other non-conforming uses in the city are permitted to continue indefinitely, unless there exists a "documented study in evidence," demonstrating that such non-conforming uses “pose a danger and/or threat to the health, safety and general welfare of the community,” in which event an amortization period of up to five years is permitted. 26. Ramsey Ordinance No. 90-7, the initial moratorium ordinance enacted by the Ramsey City Council on April 23, 1990, was facially unconstitutional and unconstitutional as applied to Plaintiffs for the followings reasons: a. Because the ordinance was enacted without any factual support as to its necessity to combat adverse secondary effects, the ordinance was not a content-neutral regulation of location, but rather an impermissible content-based aliempt at censorship, in violation of Plaintiffs’ rights under the First and Fourteenth Amendments to the United States Constitution. A-11 b. Because the ordinance did not merely regulate the location of adults-only businesses, but totally banned them from the city of Ramsey, the Ordinance had the effect of substantially curtailing the availability of adult entertainment within the City of Ramsey, and as such, constituted an unlawful prior restraint upon Plaintiffs’ rights to freedom of speech and of the press, as guaranteed by the First and Fourteenth Amendments to the United States Constitution. 27. Ramsey Ordinance 90-23, enacted to replace the moratorium ordinances, is facially unconstitutional and unconstitutional as applied to Plaintiffs for the following reasons: a. The ordinance was enacted without sufficient empirical support as to its necessity to combat adverse secondary effects, rendering the ordinance not a content-neutral location of location, but rather an impermissible content-based atiempt at censorship, in violation of Plaintiffs’ rights under the First and Fourteenth Amendments to the United States Constitution. b. The operation and effect of the ordinance will be to ban adult entertainment totally from the City of Ramsey, or at least substantially curtail its availability, in that it will outlaw Plaintiff's existing adults-only operation, prevent him as a matter of law from relocating that operation as presently constituted anywhere in the city, and preclude him, as a practical matter, from relocating any part of that business anywhere within the City of Ramsey. c. Because the ordinance was clearly intended to effect an absolute ban on adult business, rather than mere locational regulation, its stated purpose is merely pretextual and it was enacted for the purpose of censorship rather than zoning. d. Because the ordinance amortizes out of existence Plaintiffs’ adult businesses in a manner not done to any other A-12 non-conforming use, the ordinance deprives Plaintiffs of equal protection of the laws in violation of the First and Fourteenth Amendments to the United States Constitution. e. The sign regulations in the ordinance constitute impermissible content-based censorship, in violation of the First and Fourteenth Amendments to the United States Constitution. EQUITY AND IRREPARABLE INJURY 28. Plaintiffs re-allege the allegations set forth in Paragraphs 1-26, supra. 29. Unless enforcement of Ramsey Ordinance No. 90-23 is temporarily and permanently enjoined, Plaintiffs will suffer irreparable injury, in that they will be restrained from the exercise of rights guaranteed by the First and Fourteenth Amendments to the United States Constitution. DAMAGES 30. Plaintiffs re-allege the allegations set forth in Paragraphs 1-26, supra. 31. As a result of the enactment of the original ordinance 90-7, Plaintiffs’ predecessor, not wishing to face the issuance of a temporary restraining order on May 11, 1990, resulting in a loss of income yet to be determined. 32. As part of his agreement with Plaintiff Garry Holmberg, Plaintiff Larry Holmberg received from Plaintiff Garry Holmberg any and all interest in money damages under the present lawsuit. 33. Plaintiff Larry Holmberg is entitled to compensatory damages for said lost income. WHEREFORE Plaintiff requests the judgment and decree of this Court as follows: a That this Court enter a declaratory judgmem A-13 declaring Ramsey City Ordinance No. 90-23 to be facially unconstitutional and unconstitutional as applied to Plaintiffs, as a violation of the First and Fourteenth Amendments tw the United States Constitution. b. That the Court enter a preliminary and permanent injunction, and until a hearing on a preliminary injunction can be had, a temporary restraining ordcr, restraining and enjoining Defendant, its agents, officers, employees, and persons acting under its direction and control from taking any action to enforce the provisions of Ramsey City Ordinance No. 90-23 against Plaintiffs. Cc. That Plaintiffs be awarded damages against Defendant commensurate with any income loss occasioned by the unconstitutional ordinances in question. d. That Plaintiffs be awarded their reasonable costs, disbursements, and attomey'’s fees pursuant to Title 42 U.S.C. Section 1988. e. The Court grant such other and further relief as it may deem just, fair and equitable. Ss Randall D. B. Tigue Attomey for Plaintiffs 2620 Nicollet Avenuc Minneapolis, Minnesota 55408 Dated: March 18, 1991. (612) 874-9903 A-14 ee Bit ms et VERIFICATION STATE OF MINNESOTA _) ss COUNTY OF HENNEPIN ) Larry Holmberg, individually and in his capacity as President of Plaintiff Adult Amusement Center, Inc., being first duly sworn on oath, hereby deposes and says that he is one of the Plaintiffs and the President of the corporate Plaintiff in the above-entitled action, that he has read the foregoing Complaint, and acknowledges it to be true to the best of his knowledge and belief. Ls/ Larry Holmberg Sworn to and subscribed to before me this 19th day of March, 1991. a Notary Public RANDALL D.B. TIGUE NOTARY PUBLIC - MINNESOTA, County Of Ramsey My Commission Expires 1-29-96 A-15 ORDINANCE NO. 90-23 CITY OF RAMSEY ANOKA COUNTY, MINNESOTA AN ORDINANCE AMENDING CHAPTER 9 OF THE CITY CODE OF THE CITY OF RAMSEY RELATING TO THE RULES OF CONSTRUCTION AND INTERPRETATION; THE DEFINITION OF ADULT USES, AMORTIZATION, NONCONFORMING USE AND NONCONFORMING STRUCTURE; PROCESSING COSTS; THE PROCEDURAL REQUIREMENTS FOR CONDITIONAL USE PERMITS AND VARIAINCES; THE PROCEDURAL REQUIREMENTS AND MEMBERSHIP OF THE BOARD OF ADJUSTMENT AND APPEALS; PROCESSING COSTS FOR CONDITIONAL USE PERMITS AND VARIANCES; THE REGLTATION OF NON-CONFORMING BUILDINGS, STRUCTURES AND USES; PERFORMANCE STANDARDS FOR ADULT USES; THE REVISION OF ACTIVITIES WITHIN THE B-1, B-2, RB, 1, AND RI ZONING DISTRICTS; PERFORMANCE STANDARDS FOR NON-RESIDENTIAL USES; THE REPEAL OF DUPLICATE REFERENCES IN ALL ZONING DISTRICTS; THE CREATION OF THE B-3, HIGHWAY BUSINESS DISTRICT AND THE B-W, BUSINESS/WAREHOUSING DISTRICT, AND THE REZONING OF CERTAIN LANDS TO B-W AND B-3 ZONING DISTRICTS. i a te a tn ae anaes Se ee a ae a The City of Ramsey ordains: Section 1. Amendment. That Chapter 9, §9.01.06 Rules shall be amended to read as follows: 9.01.06 Rules of construction and interpretation Subdivision 1. Conflicting conditions. Where the conditions imposed by any provision of this Chapter are cither more or less restrictive than comparable conditions by another provision of this Chapter or by other Chapters of the City Code, rule or registration of the City, the provision which imposes the more restrictive condition, standard, or requirement shall prevail. Subd. 2. Language rules of construction. The language set forth in the text of this chapter shall be interpreted in accordance with the following rules of construction: 4 The singular number includes the plural, and the plural the singular. b. The present tense includes the past and future tenses, and the future the present. c. The word “shall” is mandatory while the word “may” is per missive. d. The masculine gender includes the feminine and neuter. e. Whenever a word or term defined hereinafter appears in the text of this chapter, its meaning shall be construed as set forth in the Definitions section of this chapter. f. All measured distances expressed in feet shall be the nearest tenth of a foot. Section 2. Amendment. That Chapter 9, §9.02 Definitions of the City Code shall be amended to add the followiiig definitions: Adult Uses: Adult uses include adult bookstores, A-17 adult motion picture theaters, adult motion picture rental, adult mini-motion picture theaters, adult massage parlors, adult steam room/bathhouse/sauna facilities, adult companionship establishments, adult rap/conversation pariors, adult health/sport clubs, adult cabarets, adult novelty businesses, adult motion picture arcades, adult modeling studios, adult hotels/motels, adult body painting studios, and other premises, enterprises, establishments, businesses or places open to some or all members of the public, at or in which there is an emphasis on the presentation, display, depiction or description of “specified sexual activities" or "specified anatomical areas” which are capable of being seen by members of the public. a. Specified Anatomical Areas: 1. Less than completely and opaquely covered human genitals, pubic region, buttock, anus, or female breast(s) below a point immediately above the top of the areola; and 2. human male genitals in a discernibly turgid state, even if completely and opaquely covered. b. Specified Sexual Activities: 1. Acwal or simulated sexual intercourse, oral copulation, anal intercourse, oral-anal copulation, beastiality, direct physical stimulation of unclothed genitals, flagellation or torwre in the context of a sexual relationship, or the use of excretory functions in A-18 the context of a sexual relationship, and any of the following sexually-oriented acts or conduct: anilingus, buggery, coprophagy, coprophilia, | cunnilingus, fellatio, necrophilia, ; pederasty, pedophilia, piquerism, sapphism, zooerasty; or ; 2. Clearly depicted human genitals in / the state of sexual stimulation, arousal or tumescence; or 3. Use of human or animal ejaculation, sodomy, oral | copulation, coitus, or masturbation; or : 4. Fondling or touching of nude human genitals, pubic region, buttocks, or female breast; or 3. Situations involving a person or persons, any of whom are nude, ; clad in undergarments or in sexually revealing costumes, and who are engaged in activities involving the flagellation, torture, fettering, binding or other physical restraint of any such persons; or 6. Erotic or lewd touching, fondling or other sexually-oriented contact with an animal by a human being; or a Human excretion, urination, - i ‘ i A-19 menstruation, vaginal or anal irrigation. Adult Uses - Accessory: A use, business, or establishment having 10% or less of its stock in trade or floor area allocated to, or 20% or less of its gross receipts derived from movie rentals or magazine sales. Adult Uses - Principal: A use, business, or establishment having more than 10% of its stock in trade or floor area allocated to, or more than 20% of its gross receipts derived from, any adult use. Adult Use Body Painting Studio. An establishment or business which provides the service of applying paint or other substance, whether transparent or non-transparent, to or on the body of a patron when such body is wholly or partially nude in terms of "specified anatomical areas”. Adult Use - Bookstore. A building or portion of a building used for the barter, rental or sale of items consisting of printed matter, pictures, slides, records, audio tape, videotape, or motion picture film if such building or portion of a building is not open to the public generally but only to one or more classes of the public extending any minor by reason of age or if a substantial or significant portion of such items are distinguished or characterized by an emphasis on the depiction or description of "specified sexual activities” or “specified anatomical areas”. Adult Use - Cabaret. A building or portion of a building used for providing dancing or other live entertainment, if such building or portion of a building excludes minors by virtue of age or if such dancing or other live entertainment is distinguished or characterized by an emphasis on the presentation, display, depiction or description of “specified sexual activities” or “specified anatomical areas”. A-20 Pete, Adult Use Companionship Establishment. A companionship establishment which excludes minors by reason of age, or which provides the service of engaging in or listening to conversation, talk or discussion between an employee of the establishment and a customer, if such service is distinguished or characterized by an emphasis on “specified sexual activities” or “ “specified anatomical areas”. Adult Use Conversation/Rap Parlor. A conversation/rap parlor which excludes minors by reason of age, or which provides the service of engaging in or listening two conversation, talk, or discussion, if such service is distinguished or characterized by an emphasis on "specified sexual activities” or "specified anatomical areas”. Adult Use - Health/Sport Club. A health/sport club which excludes minors by reason of age, or if such club is distinguished or characterized by an emphasis on "specified sexual activities” or “specifled anatomical areas”. Adult Use - Hotel or Motel. Adult hotel or motel means a hotel or motel from which minors are specifically excluded from patronage and wherein material is presented which is distinguished or characterized by an emphasis on matter depicting, describing or relating to "specified sexually activities” or “specified anatomical areas”. Adult Use Massage Parlor, Health Club. A massage parior or health club which restricts minors by reason of age, and which provides the services of massage, if such service is distinguished or characterized by an emphasis on "specified sexual activities” or "specified anatomical areas”. Adult Use Mini-Motion Picture Theater. A building or portion of a building with a capacity for less than 50 persons used for presenting material if such building or portion of a A-21 building as a prevailing practice excludes minors by virtue of age, or if such material is distingtusned or characterized by an emphasis on "specified sexual activities” or “specified anatomical areas” for observation by patrons therein. Adult Use - Modeling Studio. An establishment whose major business is the provision t customers, of figure models who are so provided with the intent of providing sexual stimulation or sexual gratification to such customers and who engage in “specified sexual activities” or display “specified anatomical areas" while being observed, painted, painted upon, sketched, drawn, sculptured, photographed, or otherwise depicted by such customers. Adult Use - Motion Picture Arcade. Any place to which the public is permitted or invited wherein coin or slug-operated or electronically, electrically or mecnanically controlled or operated still or motor picture machines, projectors or other image-producing devices are maintained to show images to five or fewer persons per machine at any one time, and where the images so displayed are distinguished or characterized by an emphasis on depicting or describing “specified sexual activities” or “specified anatomical areas”. Adult Use - Motion Picture Theater. A building or portion of a building with a capacity of SO or more persons used for presenting material if such building or portion of a building as a prevailing practice excludes minors by virtue of age or if such material is distinguished or characterized by an emphasis on “specified sexual activities” or “specified anatomical areas” for observation by patrons therein. Adult Use - Novelty Business. A business which has as a principal activity the sale of devices which stimulate human genitals or devices which are designed for sexual A-22 Ea A As oP ta Aa ta > git Pn A Di es stimulation. Adult Use - Sauna’ A sauna which excludes minors by reason of age, or which provides a steam bath or heat bathing room used for the purpose of bathing, relaxation, or reducing, utilizing steam or hot air as a cleaning, relaxing or reducing agent, if the service provided by the sauna is distinguished of characterized by an emphasis on “specified sexual activities” or “specified anatomical areas”. Adult Use Steam Room/Bathhouse Facility. A building or portion of a building used for providing a steam bath or heat bathing room used for the purpose of pleasure, bathing, relaxation, or reducing, utilizing steam or hot air as a cleaning, relaxing or reducing agent if such building or portion of a building restricts minors by reason of age of if the service provided by the steam room/hathhouse facility is distinguished or characterized by an emphasis on “specified sexual activities” or “specified anatomical areas”. Amortization: The establishment of a time schedule over which the cost of an investment is depreciated. Nonconforming structure: A building or structure which is a Nonconforming use as defined in this section. Nonconforming use: A _ building, structure, premise, or use which does not comply or conform with the applicable conditions or provisions of this Chapter. a. Nonconforming use - Illegal: A building, structure, premise, or use which at the time of its establishment did not comply or conform with the applicable conditions or provisions of the City Code which were in effect at such date, and which continues such noncompliance and nonconformance A-23 with the present City Code. b. Nonconforming use - Legal: A building, structure, premise, or use which at the time of its establishment was in compliance and conformance with the applicable conditions and provisions of the City Code which were in effect at such date, but which does not now comply or conform to conditions and provisions of the current City Code. Section 7. Amendment. That Chapter 9, §9.01.11 Subdivision Non-Conforming Uses shall be amended to read as follows: 9.01.11 Non-Conforming Buildings, Structures and Uses Subdivision 1. Intent: It is the purpose of this section to provide for the regulation of non-conforming buildings, structures and uses and to specify those requirements, circumstances and conditions under which non-conforming buildings, structures and uses will be operated and maintained. This Chapter establishes separate districts, each of which is an appropriate area for the location of uses which are allowed in that district. It is necessary and consistent with the establishment of these districts that non-conforming buildings, structures and uses not be allowed to continue without restriction. Furthermore, it is the intent of this section that all non-conforming uses shall be eventually brought into conformity or terminated. Subd 2. Regulations: a. Except as provided below, or in this Chapter, any legal non-conforming building/structure or use shall not be enlarged or reconstructed, but may be continued at the existing size and in the A-24 eee ~ nr lit Pe same manner of operation as existed at the date when it became classified as nonconforming. Any proposed structure which will, under this section become non-conforming but for which a building permit has been lawfully granted prior to the effective date of this Chapter may be completed in accordance with the approved plans; provided construction is started before January 1, 1991, is not abandoned for a period of more than 120 days, and continues t0 completion within two years. Such structure and use shall thereafter be a legally nonconforming structure and use. Normal maintenance of a building or other structure containing or related to a lawful nonconforming use is permitted, including necessary non-structural repairs and incidental alterations which do not physically extend or intensify the non conforming use. Alterations may be made tw a building containing lawful non-conforming residential units when they will improve the livability thereof, provided they will not increase the number of dwelling units or size or volume of the building except as provided below. A dwelling may not, however, be demolished and a new dwelling constructed unless the new A-25 dwelling is in full compliance with this Chapter. Legally non conforming, non-income producing single family residential units which violate setback standards may be expanded tw improve livability when approved by the Zoning Administrator, provided that the nonconformity is not increased beyond the existing conditions upon the parcel and no other deviations within the Zoning Chapter are created. Nothing in this section shall prevent the placing of a structure in safe condition when said structure is declared unsafe by the City Building Official provided the necessary repairs shall not constitute more than 50% of fair market value of cach structure. Said value shall be determined by the City Assessor. No non-conforming building, structure or use shall be moved to another parcel or to any other part of the parcel of land upon which the same was constructed or was conducted unless such relocation shall bring the non-conformance into substantially closer compliance with the requirements of this Chapter. When any lawful non-conforming use of any structure or land in any district has been changed to a conforming use, it shall not thereafter be changed to a non- A-26 conforming use. i. A lawful non-conforming structure or parcel of land may be changed to lessen the nonconformity. Once 2 nonconforming structure or parcel of land has been changed, it shall not thereafter be so altered to increase the nonconformity. j. If at any time a non-conforming building, structure or use shall be destroyed to the extent of more than 50% of its fair market value, said value to be determined by the City Assessor, then without further action by the Council, the building and the land on which such building was located or maintained shall, from and after the date of said destruction, be subject to all the regulations specified by those zoning regulations for the district in which such | land and buildings are located. Any building which is damaged to an extent of less than 50% of its value may be restored to its former extent if it is reconstructed within 12 months after the date of said damage. Estimate of the extent of damage or destruction shall be made by the City . Building Official. k. Whenever a lawful non-conforming use of 3 a structure or land is discontinued for a continuous period of six months, any | future use of said structure or lands shall be made to conform with the provisions of A-27 this Chapter. Except where sanitary sewer has not been provided w «a parcel, a lot of record existing as of November 1, 1990 in a Residential District, which does not meet the requirements of this Chapter as to area or width may be utilized for single family detached dwelling purposes provided the measurements of such area or width are within 75% of the requirements of this Chapter. This section is not intended to allow reduction in setbacks and required yards. In the event that measurements of such area or width are less than 75% of and upon the owner being notified in writing by the City, the owner shall provide to the City a documented time schedule and program with rational w support the proposed amortization of the building, structure, or use investments A-28 which wil result in the termination or correction of the nonconformity. 1. The termination/correction time schedule shall be based upon, but not limited to, factors such as the initial investment and the degree of threat or danger being posed. 2. The acceptability of the time schedule shall be determined by the Zoning Administrator with right of appeal. The Zoning Administrator shall use the (a) The length of time that the use (g) The cost of relocating the use. 3. In no case shall a time schedule exceed five years from the date of notification. Section 8. Amendment. That Chapter 9, §9.10 Performance A-29 Standards shall be amended to add the following subsection: 9.11.19 Adult Uses. Subdivision 1. Purpose. The nature of adult uses is such that they are recognized as having adverse secondary characteristics, particularly when they are accessible to minors and located near residential property or related residential uses such as schools, day care centers, libraries or parks. Furthermore, the concentration of adult uses has an adverse effect upon the use and enjoyment of adjacent areas. The nature of adult uses requires that they not be allowed within certain zoning districts, or within minimum distances from each other or residential uses. Special regulation of adult uses is necessary to ensure that the adverse secondary effects would not contribute or enhance criminal activity in the area of such uses nor will it contribute to the blighting or downgrading of the surrounding property and lessening of its value. Subd. 2. General. Adult uses as defined in this Chapter shall be subject to the following general provisions: a. Activities classified as obscene are not permitted and are prohibited. b. Adult uses, cither principal or accessory, shall be prohibited from locating in any building which is also utilized for residential purposes. c. Adult uses, cither principal or accessory, shall be prohibited from locating in any place which is also used to dispense or consume alcoholic beverages. d. An adult use which does not quallify as an accessory use pursuant to Subdivision 4.a. of this sub-section, shall be classified as A-30 Anan lS —t tne ie am lt ee ee eee POR Oe ee Ba Be so an adult use - principal. Subd. 3. Adult Uses Principal: Adult use-principal shall be located at least 1,000 radial feet, as measured in a straight line from the closest point of the property line of the building upon wiiich the adult use-principal is located to the property line of: 1. Residentially zoned property 2. A licensed day care center 3. A public or private educational facility classified as an elementary, junior high or senior high A public library A public park Another adult use - principal An on-sale liquor establishment Any church or church related organization. Adult use-principal activities, as defined by this Chapter, shall be classified as one use. No two adult uses-principal shall be located in the same building or upon the Same property and cach use shall be subject to this Section. Adult use-principal shall adhere tw the following signing regulations. 1. Sign messages shall be generic in nature and shall only identify the type of business which is being en~ Pe & A-31 conducted. y A Sign messages shall not contain material classified as advertising. 3. Signs shall comply with the requirements of size and number for the district in which they are located. d. Adult use-principal shall be limited to 7:00 a.m. to 12:00 p.m. for its hours of operation. A differing time schedule may be approved by the Zoning Administrator, subject to Council appeal, if it can be satisfactorily demonstrated by the operator to the City that extended operational hours will: 1. Not adversely impact or affect uses or activities within 1,000 feet. 2. Will not result in_ increased 3. Is critical to the operation of the business. Subd 4. Adult Uses - Accessory: a. Adult use-accessory shall: 1. Comprise no more than 10% of the floor area of the establishment in which it is located. 2. Comprise no more than 20% of the gross receipts of the entire business operation. 3. Not involve or include any A-32 a hla i ee ae eT ee ee) eee Rai wt a A RR activity except the sale or rental of merchandise. b. Adult use-accessory shall be restricted from and prohibit access to minors by the physical separation of such items from areas of general public access: 1. Movie Rentals. Display areas shall be restricted from general view and shall be located within a separate room, the access of which is in clear view and under the control of the persons responsible for the operation. 2. be covered with a wrapper or other means to prevent display of any material other than the publication title. 3. Other Use. Adult uses-accessory not specifically cited shall comply with the intent of this section subject to the approval of the Zoning Administrator. c. Adult use-accessory shall be prohibited from both internal and extemal advertising and signing of adult materials and products. Subd. 5. Nonconforming Adult Use - Principal or Accessory: Adult uses which are classified as legal nonconforming uses may continue in accordance with the provision of this chapter, except that any such nonconforming use shall be terminated and become illegal on and after 31 December 1991. To the extent A-33 possible, the City shall attempt to identify all such uses which become classified as nonconforming under the provisions of this subdivision and shall notify the property owners and operators of such uses in writing of the change in status and the terms and conditions which apply. The owner of any property on which an adult use is located may apply to the Council for an extension of the termination date. Any such application shall be in writing and be received by the City no later than 1 October 1991. Failure to submit a timely extension application shall constitute a waiver of the right to request an exception, if upon the Council's determination, the applicant demonstrates that the amortization period is an unreasonable burden upon the business and does not allow adequate time t recover a reasonable retum upon the business investment. The applicant shall have the burden of proof to demonstrate hardship with the established termination date and also the time required for an extension. In making its decision, the Council may consider any factor relevant to the issue, including but not limited to: a. The degree or magnitude of threat to the public health, safety and general welfare posed by the secondary impacts of the operation. b. The length of time that the adult use has been operating. c. The ease by which the property could be converted to a conforming use. d. The mature and character of the surrounding neighborhood. e. The value and condition of the improvements on the property. f. The amount of the applicant’s investment A-34 in the business. g. The amount of investment already realized. h. The cost of relocating the adult use. Section 10. Amendment. That Chapter 9, §9.20.03. Districts shall be amended to read as follows: 9.20.03 Districts. For the purpose of this chapter, the City of Ramsey is divided in the following zoning districts. Subdivision 1. R-1R Residential: The intent of this district is to accommodate single family dwelling units on suitable land outside of the Urban Service Area of the City. Subd. 2. R-1U Residential: The intent of this district is to accommodate single family dwelling units in the Urban Area of the City. Subd. 3. R-2U Residential: The intent of this district is to accommodate two family dwelling units in the Urban Area of the City. Subd. 4. R-3U Residential: The intent of this district is to accommodate multiple dwellings, multiple dwelling complexes, and apartment multiple dwellings (and office and commercial developments in accordance with planned unit development requirements) in the Urban Area of the City. Subd. 5. MR Multiple Residential: The intent of this district is t© accommodate mid-density residenti.. housing (and office and commercial developments in accordance with planned unit development requirements) intended to act as a transition use between lower density residential districts and the B-1 and B-2 Business Districts. Subd. 6. B-1 Business District: The intent of the B-1, Business District is to provide for areas of commercial development which accommodate shopper type goods and services A-35 as contrasted to auto oriented highway commercial activities. Subd. 7. B-2 Business District: The intent of this district is t© accommodate certain restricted business uses to act as a transition between intense nonresidential districts and residential districts. These uses are to provide services and goods only for the surrounding neighborhoods and are not intended to draw customers from the entire community. Subd. 8. B-3 Highway Business District. The Intent of the B-3, Highway Business District is to provide for and limit the establishment of motor vehicle oriented or dependent and convenience type, high intensity commercial and service activities characteristically located along major traffic carriers. Subd. 9. B-W Business/Warehousing District. The Intent of the B-W, Business/Warehousing District is to provide for the mix of typically large volumes or bulk commercial goods and services, and wholesale/warehouse activities. The overall character of the "B-W” District is intended to be transitional in nature, thus industrial type of activities allowed within this district shall be limited to those which can compatibly exist with and be adjacent to commercial retail uses. Subd. 10. I-1 Industrial District: The intent of this district is t© accommodate general industrial activities. Subd. 11. RB Rural Business District: The intent of this district is to permit certain restricted business uses in areas outside of the City’s urban sewer service area. Subd. 12. RI Rural Industrial District: The intent of this district is t0 permit certain restricted industrial uses in areas outside of the City's urban sewer service area. Subd. 13. PUD Planned Unit Development: The intent of this district is to allow for flexibility in density and usage. Subd. 14. A Agriculture: The intent of this district is to A-3% accommodate agricultural uses and property in the City. Subd. 15. Overlay Districts: The intent of Overlay Districts is to add additional standards and requirements to land and/or uses where the need for such additional standards and requirements is to protect the public health and safety or to preserve environmentally sensitive areas. The following Overiay Districts exist in the City of Ramsey. a. Environmental Protection and Critical Rivers Regulations: Certain areas in all districts may be located’ within Environmental Protection and Critical Rivers areas and are subject to additional regulations as specffied in $9.21. b. Floodplain Regulations: Certain areas if all may be located within designated floodplains and are subject to additional regulations as specified in $9.22. c. Scenic Rivers Regulations: Certain areas in all stricts may be located within Scenic Rivers areas and are subject to additional regulations as specified in §9.23. Section 18. Amendment. That Chapter 9, §9-20.21, B-1, Business District shall be amended to read as follows: 9.20.21 B-1 Business District. Subdivision 1. Intent: The purpose of the B-1, Business District is t© provide for areas of commercial development which accommodate shopper type goods and services as contrasted to auto oriented highway commercial activities. Subd. 2. Permitted Uses: (Subject to general requirements and performance standards as specified by this Chapter.) a Retail business. A-37 Eating and drinking establishments. Offices and banks. Personal and professional services. Funeral homes. Medical clinics. Animal clinics. Adult uses-accessory. Subd. 3. Accessory Uses: a. Commercial or business buildings and structures for a use accessory to the principal use but such use shall not exceed 30% of the gross floor space of the principal use. b. Off-street parking including semi-trailer trucks, as regulated and required by this Chapter. Off-street loading as regulated and required by this Chapter. d. Signing as regulated by the City Code. Subd. 4. Conditional Uses: (Requires a conditional use permit based upon procedures set forth in and regulated by §9.03.04 of this Chapter.) a. Other commercial retail or service uses may be allowed provided that: 1. The use does not involve outside sales, service, rental or storage which exceeds 10% of the property. 2. The use meets the intent of the District as stated in this Section. 3. The provisions of §9.03.04, Subd. remem ans A-38 Subd. 5. Standards: Minimum lot area: ............. 1/2 acre Minimum lot width: ............ 100 feet Minimum lot depth: ............ 150 feet Setbacks: De seeded des de VESTA 35 feet rr Py PP reerr rs. 10 feet (No side yard is required where a common wall is provided between two buildings which meet the fire safety standards.) Side for comer lot: ........ 20 feet ee vee cere sees 35 feet From thoroughfares: .. 110 feet from center line or 50 feet from right-of-way, whichever is greater From service road: ........ 35 feet From residential district: 35 feet Maximum building height: ........ 35 feet Maximum lot coverage ............. 35% Business uses shall not be located closer to an R-1R, R-1U, R-2U District than the distance specified below: Minimum side/rear setback if abutting R-1R, R-TU, R-2U District Use: Stacking of vehicles shall not be permitted on a public street. There shall be no off-street parking within 10 feet of any street right-of-way. Section 20. Amendment. That Chapter 9, §9-20 Districts shall be amended to add the following highway-oriented commercial zoning district, regulations, and performance standards: 9.21.23 B-3 Highway Business District Subdivision 1. Intent: The purpose of the B-3, Highway Business District is to provide for and limit the establishment of motor vehicle oriented or dependent and convenience type, high intensity commercial and service activities characteristically located along major traffic carriers. Subd. 2. Permitted Uses: (Subject to general requirements and performance standards as specified by this Chapter.) a. Restaurants, cafes, on and off-sale liquor. b. Private clubs or lodges serving food and beverages. c. Commercial recreational uses. d. Governmental and public utility buildings and structures. e. Motels, motor hotels and hotels provided that the lot area contains not less than 500 square feet of lot area per unit. f. Motor vehicle, implement, and recreation accessory thereto. g. Auto accessory store. A-40 chines, Rie ee ne ated Se TS. Se ey «Be ee. Le Nd Or tek onl e Beiaclate 1S alain ah nla enw A entre a Ih Cerwin + Cart Aadiled at Sa ena te h. Adult uses-principal and adult uses-accessory. Subd. 3. Accessory Uses: a. Commercial or business buildings and structures for a use accessory to the principal use but such use shall not exceed 30% of the gross floor space of the principal use. b. Off-street parking including semi-trailer trucks, as regulated and required by this Chapter. 6. Off-street loading as regulated and required by this Chapter. d. Signing as regulated by the City Code. Subd. 4. Conditional Uses: (Requires a conditional use permit based upon procedures set forth in and regulated by §9.03.04 of this Chapter.) a. Drive-in and convenience, fast food establishments, provided that: 1. The architectural appearance and functional plan of the building and site shali not be so dissimilar to the existing buildings or area sO aS © cause impairment in property values or constitute a blighting influence within a reasonable distance of the lot and shall comply with the architecwral control provisions of this section. Each light standard island and all islands in the parking lot landscaped or covered. Parking areas and driveways shall be curbed with continuous curbs not less than 6 inches high above the parking or driveway grade. A-41 Vehicular access points shall be limited, shall create a minimum of conilict with through traffic movements, and shall be subject to the approval of the City Engineer. The entire site shall have a drainage system which is subject to the approval of the City Engineer. The entire area other than occupied by buildings or structures or planting shall be surfaced with asphalt or concrete matcrials which will control dust and drainage and which is subject to the approval of the City Engineer. All signing and information or visual communication devices shall be in compliance with the applicable provisions of the City Code. The provisions of §9.03.04, Subd. 4g are considered and are satisfactorily met. Commercial car washes (drive through, mechanical and self-service) provided that: 1. The architectural appearance and functional plan of the building and site shall not be so dissimilar to the existing buildings or areas as t0 Cause impairment in property values or constitute a blighting influence and shall comply with the architectural control provisions of this section. Magazining or stacking space is A-42 a 10. constructed to accommodate that number of vehicles which can be washed during a maximum 30 minute period and shall be subject to the approval of the City Engineer. Each light standard island and all islands in the parking lot landscaped or covered. Pasking or car magazine storage space shall be screened from view of abutting residential districts. The entire area other than occupied by the building or plantings shall be surfaced with asphalt or concrete materials which will control dust and drainage which is subject to the approval of the City Engineez. The entire area shall have a drainage system which is subject to the approval of the City. Vehicular access points shall be limited, shall create a minimum of conflict with through traffic movement and shall be subject to the approval of the City Engineer. All signing and informational or visual communication devices shall be in of the City Code. Provisions are made to control and reduce noise. The provisions of §9.03.04, Subd. 4g are A-43 considered and are satisfactorily met. Gas station, truck stop, auto repair-minor, and tire and battery stores and service provided that: Regardless of whether the dispensing, sale or offering for sale of motor fuels and/or oil is incidental to the conduct of the use or business, the standards and requirements imposed by this Chapter for motor fuel stations shall apply. These standards and requirements are, however, in addition to other requirements which are imposed for other uses of the property. The architectural appearance and functional plan of the building and site shall not be so dissimilar to the existing buildings or areas as to cause impairment in property values or constitute a blighting influence within a reasonable distance of the lot and shall comply with the architectural control provisions of this section. The entire site other than that taken up by a building, structure or plantings shall be surfaced with asphalt or concrete material to control dust and drainage which is subject t© the approval of the City Engineer. A drainage system subject to the approval of the City Engineer shail be installed. A curb not less than 6 inches above grade shall separate the public pedestrian way A-44 10. 11. 12. 13. 14. from motor vehicle sea-ice areas. Wherever fuel pumps are to be installed, pump islands shall be installed. Each light standard base shall be landscaped. Parking or car magazine storage space shall be screened from view of abutting residential distncts. Vehicular access points shall create a minimum of conflict with through traffic movement and shall be subject to the approval of the City Engineer. All signing and informational or visual communication devices shall be minimized and shall be in compliance with the applicable provisions of the City Code. Provisions are made to control and reduce noise. No outside storage except as allowed in compliance with this Section. Sale of products other than those specifically mentioned in this section be subject to a conditional use permit and be in compliance with §9.03.04 of this Chapter. All conditions pertaining to a specific site are subject to change when the Council, upon investigation in relation to a formal request, finds that the general welfare and A-45 0 public betterment can be served as well or better by modifying the conditions. 15. The provisions of §9.03.04, Subd. 4g are considered and are satisfactorily met. d. Convenience Store with Gasoline: Grocery and/or food operations, with convenience gas (no vehicle service or repair), provided that: ‘ The retail sales involve uses or activities which are allowed in a B-1 District. 2 Convenience/deli food is of the take-out type only and that no provision for seating or consumption on the premises is provided. Furthermore, that the enclosed area devoted to such activity, use and merchandise shall not exceed 15% of the gross floor area. 3. That any saic of food items is subject to the approval of the City Building Official who shall provide specific written sanitary requirements for each proposed sale location based upon applicable State and County regulations. 4. That the non-automotive sales shall qualify for and subsequently be granted on an annual food handling, license by Anoka County, or other license, as circumstances shall require, in addition to the conditional use permit. 5. That the approximate area and location devoted tO non-automatic merchandise sales shall be specifled in general terms in A-46 the application and in the conditional use permit. Exterior sales, storage, and/or displays shall be subject to a separate conditional use permit. The hours of operation shall be limited to 6:00 AM to 12:00 PM, unless extended by the Council. Motor fuel activities are installed in accordance with State and City standards. Additionally, adequate space shall be provided to access gas pumps and allow maneuverability around the pumps. Underground fuel storage tanks are to be positioned to allow adequate access by motor fuel transports and unloading operations do not conflict with circulation, access and other activities on the site. Fuel pumps shall be installed on pump islands. A protective canopy located over pump island may be an accessory structure on the property and may be located 20 feet or more from the front lot line, provided adequate visibility both on and off site is maintained. The architectural appearance and functional plan of the building and site shall not be so dissimilar to the existing buildings or area as to cause impairment in property values or constitute a blighting influence within a reasonable distance of A-47 | the lot. All sides of the principal and accessory structures are to have essentially the same or a coordinated, harmonious finish treatment and shall comply with tne architectura [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1646%3A1. Public record. Not legal advice.