County of Morrison v. Wheeler
| Decision Date | 10 October 2006 |
| Docket Number | No. A05-2002.,A05-2002. |
| Citation | 722 N.W.2d 329 |
| Parties | COUNTY OF MORRISON, Respondent, v. Gordon K. WHEELER, Sr., et al., Appellants. |
| Court | Minnesota Court of Appeals |
Randall D.B. Tigue, Randall Tigue Law Office, P.A., Minneapolis, MN, for appellant.
Paul D. Reuvers, Pamela J. Whitmore, Iverson Reuvers, Bloomington, MN, for respondents.
Considered and decided by KALITOWSKI, Presiding Judge; RANDALL, Judge; and PETERSON, Judge.
Appellants, as owners of an adult business, argue: (a) their adult business was open before the enactment of the county ordinance that provided the basis for enjoining its business, so the business is entitled to lawful-nonconforming status under the ordinance; and (b) the ordinance under which the business was enjoined is unconstitutional under the First Amendment because it enacted content-based regulation of constitutionally protected speech, failed to serve a substantial governmental interest, and did not allow for reasonable alternative avenues of communication.
Appellants further argue that because they sufficiently challenged the county's evidence of secondary adverse effects of adult-use businesses, the burden shifted to the county to produce further evidence showing that its existing regulation was inadequate to address those effects. Finally, appellants argue that the record does not support the county's purported basis for the ordinance.
Respondents initially argue that appellants cannot challenge the constitutionality of the ordinance. We reject respondent's argument that the issue of constitutionality of the ordinance is not ripe for review by this court. We will approach it on the merits.
The district court did not err when it granted summary judgment for the county and upheld the constitutionality of the ordinance. The district court did not err when it permanently enjoined operation of the adult-use business. The district court properly granted summary judgment when it determined that the adult-use business did not acquire status as a legal-nonconforming use under the ordinance.
In 1995, Morrison County (respondent or the county) considered the issue of adult-entertainment zoning and enacted Section 1202.8 of its zoning code. This zoning ordinance (1995 AUB ordinance) restricted adult-use businesses (AUBs) from operating within 1,320 feet (one-quarter mile) of residential districts, daycare centers, schools, parks, playgrounds, or religious institutions, or within 200 feet of a building licensed to sell alcoholic beverages. In December 2001, the county enacted a moratorium prohibiting any new AUBs in the county for one year. In November 2002, the moratorium was extended for an additional one-year period to December 12, 2003.
On or about October 17, 2003, appellants purchased a piece of property within Morrison County, intending to open an AUB at this location. This property was approximately 930 feet from a building licensed to sell alcoholic beverages and less than 1,320 feet from two dwelling units. Appellants opened the business, Lookin Fine Smut & Porno (LFSP), between October 18 and October 21, 2003.
On October 21, 2003, before the moratorium expired, the county amended the existing AUB ordinance (2003 AUB ordinance) and passed another ordinance that regulated sexually oriented businesses (SOB ordinance). These actions did not become effective until November 3, 2003. The differences between the 2003 AUB ordinance and the 1995 AUB ordinance included an increase in set-back requirements from businesses licensed to sell alcoholic beverages from 200 feet to 1,320 feet, imposing a set-back requirement from "any dwelling unit" rather than from "residential districts, and language restricting AUBs from operating within shore land commercial districts. The county cited concerns over the secondary effects of AUBs as the primary rationale for the changes made. This conclusion was drawn after considering a series of studies that allegedly evidenced an increase in certain crimes, a decrease in property values, and an increase in transmission of sexually transmitted diseases in geographical areas surrounding AUBs.
The county filed a complaint with the district court on October 30, 2003, alleging that LFSP violated the county's moratorium on opening or expanding AUBs within the county; that LFSP was in violation of the set-back requirements of the 2003 AUB ordinance; or, in the alternative, that LFSP was in violation of other health and food-and-beverage ordinances. With regard to the health ordinance, the county alleged, and LFSP acknowledged, that LFSP did not have a properly functioning septic system. The complaint sought a permanent injunction from the district court to enjoin LFSP from operating as an AUB.
Appellants challenged the request for a permanent injunction based on grounds that they were not in violation of the 1995 zoning ordinance, which was in effect at the time the business opened; that the violation of the health ordinance did not disqualify LFSP from being exempted from subsequent ordinances; and that the interim moratorium was unconstitutional as a complete ban against protected speech. Appellants claim that the 2003 AUB ordinance, even if applicable to appellants' business, was not adequately supported by the findings of the county and would have the effect of suppressing or substantially reducing access to constitutionally protected speech. Thus, appellants claimed a violation of their rights under the First and Fourteenth Amendments to the United States Constitution. Appellants also filed a counterclaim under 42 U.S.C. § 1983 to redress the county's alleged deprivation of their constitutional rights.
The district court issued a temporary injunction that prohibited appellants from using their property for "any purpose until such time as the property is equipped with a septic system appropriate for the intended use", dismissed the food-and-beverage compliance complaint, and reserved the issues involving the moratorium and newly enacted ordinance. The parties later stipulated to a plan for removing septic materials. The stipulation was approved by the district court and provided that the appellant would be permanently enjoined from operating the business until the county approved a septic-materials removal plan. This stipulation also stated that "the [county] will consider the septic issue separate from the adult use issue."
Both parties moved for summary judgment. The district court issued a decision on the motions and ruled that the moratorium was an unconstitutional based speech regulation "that failed to provide any alternative avenue for expression, with respect to either location . . . or content." The district court also determined that LFSP did not have grandfather rights under the 1995 zoning ordinance because it was not a lawful-nonconforming use at the time the 2003 AUB ordinance went into effect. The court deferred ruling on the constitutionality of the 2003 AUB ordinance and the SOB ordinance and allowed the parties to further develop the issues at an evidentiary hearing.
The district court convened an evidentiary hearing for the purposes of determining whether the county provided adequate evidence to support its enactment of the 2003 AUB ordinance and whether the 2003 AUB ordinance provided sufficient alternative locations for AUBs in Morrison County. The district court granted the county's motion for summary judgment, determining that the AUB ordinance was content neutral, was based on a substantial governmental interest, and provided alternative avenues for expressing protected communication.
1. Did the district court err in determining that LFSP did not attain lawful-nonconforming use rights before the enactment of Morrison County's permanent zoning ordinance?
2. Is appellants' challenge to the constitutionality of the 2003 AUD ordinance ripe for review?
3. Did the district court properly determine that Morrison County's permanent zoning ordinance does not have the effect of suppressing or greatly denying access to constitutionally protected speech?
A. Does a government have an increased evidentiary burden when it seeks to substitute or amend an existing regulation that has the expressed purpose of countering adverse secondary effects purportedly caused by AUBs?
B. Did appellants succeed in casting direct doubt on the county's evidence or factual findings that support the 2003 AUB ordinance?
C. Did the 2003 AUB ordinance provide reasonable alternative avenues of communication?
The first issue is whether the LFSP properly established itself as a business and was eligible to receive lawful-nonconforming-use rights (grandfather rights) under the county's amended AUB ordinance. If LFSP was a legally established business before the amendment of the AUB ordinance, regardless of issues with the septic system, LFSP may apply for a certificate and be allowed to exist under the amended AUB ordinance as a "grandfathered-in" business. If not, LFSP is subject to the laws in existence at whatever time it became (or becomes) a lawful, established business.
"Interpretations of state statutes and existing local zoning ordinances are questions of law that this court reviews de novo." Buss v. Johnson, 624 N.W.2d 781, 784 (Minn.App.2001). Zoning decisions of a municipal body that require judgment and discretion are reviewed to determine whether the municipal body acted arbitrarily, capriciously, or unreasonably, and whether the evidence reasonably supports the decision made. See Frank's Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 608 (Minn.1980). An action is reasonable, or not arbitrary, when it bears a reasonable relationship to the purpose of the ordinances. See Arcadia Dev. Corp. v. City of Bloomington, 267 Minn. 221, 227, 125 N.W.2d 846, 851 (1964). Despite a municipality's broad discretionary power, however, the reviewing cour...
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