City of Whittier v. Walnut Properties, Inc.

• Decision Date: 08 December 1983
• Citation: 149 Cal.App.3d 633,197 Cal.Rptr. 127
• Court: California Court of Appeals Court of Appeals
• Parties: CITY OF WHITTIER, a Charter City, Plaintiff and Appellant, v. WALNUT PROPERTIES, INC., Defendant and Respondent. Civ. 65777.

Page 127

197 Cal.Rptr. 127

149 Cal.App.3d 633

CITY OF WHITTIER, a Charter City, Plaintiff and Appellant, v. WALNUT PROPERTIES, INC., Defendant and Respondent.

Civ. 65777.

Court of Appeal, Second District, Division 4, California.

Dec. 8, 1983.

Rehearing Denied Jan. 3, 1984.

Hearing Denied Feb. 2, 1984.

J. Robert Flandrick, City Atty., City of Whittier, Burke, Williams & Sorensen and Virginia R. Pesola, Los Angeles, for plaintiff and appellant.

Stanley Fleishman, Los Angeles, for defendant and respondent.

KINGSLEY, Associate Justice.

This action was filed by City of Whittier to compel Walnut Properties, Inc., to comply with the city's zoning code that regulates "adult businesses."

FACTS

On February 7, 1978, City of Whittier adopted an amendment to its zoning regulations by Ordinance No. 2138. The code established locational regulations applicable to "adult" business establishments within the city. The code declares "adult" businesses lawfully in existence prior to the effective date of the code to be legal nonconforming uses which are subject to abatement by administrative process.

Walnut owned and operated in the City of Whittier, as part of its "Pussycat" theatre chain, what is alleged to be an adult theatre.

Pursuant to section 9322(3) the superintendent of building and safety issued to Walnut an administrative order of abatement. Walnut appealed to the city planning commission and objected to the constitutionality of the code. The planning commission issued an order of abatement. Walnut appealed to the city council, which ordered the termination of the "adult theatre" use. Walnut failed to comply and the city sued for injunctive relief.

Walnut denied it was an "adult theatre" within the ordinance and alleged that the ordinance was unconstitutional. We here determine only the issue of constitutionality. Walnut asked the court to take judicial notice of the fact that it had the only theatre in the city which allegedly is an "adult" theatre within the meaning of the ordinance.

The court found that language contained in section 9512, subdivision (2)(c) renders the code unconstitutional ¹ in that the language prohibited the operation of any "adult business" at any location in the city. The court concluded as follows in conclusions (1) and (2):

"1. The portion of § 9512(2)(c) of the Whittier Municipal Code specifically the words 'other public facility which is utilized by minors,' has the legal effect of prohibiting the location of any adult business on any location within the City in that, the phrase 'public facility' means, and includes, among other things, any retail commercial facility which is open to members of the public, and is utilized by minors, such as grocery stores and drug stores.

"2. The absolute prohibition of an otherwise lawful business constitutes a violation of the state and federal constitutions and such ordinance is found to be void as applied to the defendant Walnut herein."

Prior to the entry of judgment the city asked the court to take judicial notice of Ordinance No. 2254 which was enacted as an urgency measure on February 3, 1981. This was enacted in response to the trial court's proposed interpretation and to clarify any ambiguities. Sections 3, 4 and 5 of Ordinance No. 2254 read as follows:

"SECTION 3. That Section 9512.1 is hereby added to the Whittier Municipal Code to read as follows:

" '9512.1--ALTERNATE SPECIAL REGULATIONS. The special regulations set forth in this section shall apply to all uses which are subject to the provisions of this part if for any reason any of the special regulations set forth in Section 9512 hereof are declared invalid as applied to any such use.

"(1) That prior to establishing or conducting of any adult business, a conditional use permit therefor shall be obtained, pursuant to the provisions of Part 9 of this chapter; and

"(2) That no adult business shall be granted a conditional use permit unless the lot upon which such business is proposed to be located:

"(a) Is classified in Zone C-2 or a less restrictive zone; and

"(b) Is not within five hundred (500) feet of any lot classified in any of the R Zones; and

"(c) Is not within one thousand (1,000) feet of any lot upon which there is located a church; or

"(d) Is not within one thousand (1,000) feet of any lot upon which there is located any public, private or parochial, elementary, junior high, high school; or

"(e) Is not within one thousand (1,000) feet of any lot upon which there is located a City owned, operated and maintained public park; or "(f) Is not within one thousand (1,000) feet of any lot on which there is located another adult business; or

"(g) Is not within five hundred (500) feet of any lot on which is located a business with a type 40, 42, 48 or 61 on sale alcoholic beverage license.'

"SECTION 4. If any section, subsection subdivision, sentence, clause or phrase of this Ordinance is for any reason held to be unconstitutional or otherwise invalid, such decision shall not affect the validity of the remaining provisions of this Ordinance. The City Council hereby declares that it would have passed this Ordinance and each section, subsection, subdivision, sentence, clause and phrase thereof irrespective of the fact that any one or more sections, subsections, subdivisions, sentences, clauses, or phrases be declared unconstitutional.

"SECTION 5. That the City Clerk shall certify to the adoption of this Ordinance and shall cause the same to be published in the manner prescribed by law."

The trial court did take judicial notice of the ordinance, but the court based its judgment on the language contained in the code prior to its amendment and gave no effect to Ordinance No. 2254.

I

Appellant first argues that the trial court judgment is erroneous because the court did not apply the law as it existed at the time of the judgment. On February 3, 1981, after the court announced its tentative decision, but prior to entry of judgment, the city council enacted Ordinance No. 2254 as an urgency measure to eliminate the interpretation of section 9512, subdivision (2)(c) that had been proposed by the trial court. Although the court granted the city's request for judicial notice, the court's findings of fact and conclusions of law relied on the language of section 9512, subdivision (2)(c) as that section was written prior to the enactment of Ordinance No. 2254, and did not take into account the language of Ordinance No. 2254. ²

Respondent argues that since the city's complaint dealt with Ordinance No. 2138 and not Ordinance No. 2254, the question of whether No. 22254 is constitutional was not properly before the trial court. We agree. At the time the trial court gave judgment, consideration of the validity of Ordinance No. 2254 was not properly before the trial court. Section 3 of Ordinance No. 2254 provides that by its own terms it becomes operative only "if for any reason any of the special regulations set forth in Section 9512 [enacted by Ordinance No. 2138] hereof are declared invalid as applied to any such use." That was an event which had not occurred.

Nonetheless, inasmuch as we agree with the trial court that Ordinance No. 2138 is in fact unconstitutional on its face, ³ we reach the issue of the validity of the substitute ordinance (No. 2254). By this decision, Ordinance No. 2254 will become operative. It is settled law that the rights of the parties in an action in equity will be determined on the basis of the law as it exists at the time of the determination, rather than at the time the complaint was filed, and this rule applies to judgments on appeal as well as to judgments in the trial court. (City & County of S.F. v. Budde (1956) 139 Cal.App.2d 10, 12, 292 P.2d 955.) The version of the ordinance in force at the present is the relevant legislation for the purpose of the appeal. It is an established rule of law that on appeals from judgments granting or denying injunctions, the law to be applied is that which is current at the time of judgment in the appellate court. (Kash Enterprises, Inc. v. City of Los Angeles (1977) 19 Cal.3d 294, 306, fn. 6, 138 Cal.Rptr. 53, 562 P.2d 1302.)

II

Under the substitute ordinance, the only restrictions on the location of an adult theatre in the city would be that it be in a C-2 or less restrictive zone, not be within 500 feet of a residential zone, or within 1,000 feet of a church, educational institution, park or other adult business.

In Young v. American Mini Theatres (1976) 427 U.S. 50, 62, 63, 96 S.Ct. 2440, 2448, 2449, 49 L.Ed.2d 310, the court held that the mere fact that the commercial exploitation of material protected by the First Amendment is subject to zoning and other licensing requirements is not sufficient reason for invalidating the ordinance. A zoning ordinance was not held invalid merely because it regulates activity protected under the First Amendment, where the challenged restriction on the location of adult movies imposed a minimal burden on protected speech. (Schad v. Mount Ephraim (1981) 452 U.S. 61 at 71, 101 S.Ct. 2176 at 2184, 68 L.Ed.2d 671, analyzing Young v. American Mini Theatres.) A zoning law which is alleged to threaten First Amendment rights is subject to close scrutiny to pass constitutional muster and the zoning law affecting the location of adult theatres and bookstores is valid only so long as the zoning law does not have the effect of significantly reducing the numbers and availability to the public. (Alexander v. City of Minneapolis (1982) 531 F.Supp. 1162, 1170.)

In assessing the reasonableness of a regulation, we must weigh heavily the facts and the communication involved; the regulation must be narrowly tailored to further the state's legitimate interest. To be reasonable, time, place and manner restrictions must not only serve significant state interests but must leave open adequate alternative channels of communication. (Schad v. Mount Ephraim, supra, 452 U.S. 61, 76, 101 S.Ct....