Levi v. City of Ontario, CV 96-7559 SVW (SHx).
| Decision Date | 14 January 1999 |
| Docket Number | No. CV 96-7559 SVW (SHx).,CV 96-7559 SVW (SHx). |
| Court | U.S. District Court — Central District of California |
| Parties | Moshe LEVI and Simon Arouas, doing business as The Reel One, Plaintiffs, v. CITY OF ONTARIO, Defendant. |
Roger Jon Diamond, Santa Monica, CA, for plaintiffs.
Robert E. Dougherty, Eric S. Vail, Covington & Crowe, LLP, Ontario, CA, for defendant.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
I. Procedural History
Plaintiffs filed this action on October 28, 1996, seeking a declaration that Ontario's adult business zoning ordinance constitutes an unconstitutional restriction on adult speech and an injunction barring enforcement of the ordinance. Although Ontario also requires adult businesses to obtain a conditional use permit ("CUP"), Plaintiffs do not challenge the constitutionality of the CUP process.
In an order dated May 22, 1997, this Court held that Plaintiffs could not challenge the constitutionality of the Ontario ordinance as applied to their business because this claim was barred by the statute of limitations. Plaintiffs then proceeded with a facial challenge to the ordinance's constitutionality. As a result of the previous ruling, the Court excluded as irrelevant all evidence of how this ordinance affects these particular Plaintiffs. In a May 22, 1997, Order, this Court also rejected Plaintiff's motion for leave to file a first amended complaint to add a cause of action based on California law. On August 25, 1997, this Court denied Defendant's motion for summary judgment.
The parties appeared for court trial on February 5 and May 7, 1998. At the conclusion of each proceeding, the Court issued an order identifying the issues for trial and asking for further briefing. Based on the evidence adduced at trial and in accord with Fed.R.Civ.P. 52(a), the Court now enters its findings of fact and conclusions of law.
II. Findings of Fact
3. In February 1992, Ontario again amended its zoning code, requiring adult businesses to locate only in areas zoned M2 (General Industrial). See Ontario Municipal Code ("OMC") §§ 9-3.1715(d), 9-3.2750.
4. Ontario's zoning of adult businesses is motivated by its desire to control adverse secondary effects associated with adult businesses. OMC §§ 9-3.1700(j)(5), (6).
5. Ontario relied on studies of the effects of adult businesses in Austin, Texas; Indianapolis, Indiana; Los Angeles, California; Phoenix, Arizona; and St. Paul, Minnesota in concluding that there was a need to regulate adult businesses through zoning. OMC § 9-3.1700(j)(3).
6. In addition to limiting adult businesses to the M2 zone, Ontario places further restrictions on the locations of such businesses:
a. No adult business may locate within 1,500 feet of
i. Property classified as agricultural or residential (including single family homes, estates, multiple dwellings or mobile home parks); OMC § 9-3.1715(d)(1)(A)(i);
ii. Any other residential use whether inside or outside the Ontario city limits; OMC § 9-3.1715(d)(1)(A)(ii);
iii. Any place of worship (such as a church or synagogue) whether inside or outside the Ontario city limits; OMC § 9-3.1715(d)(1)(A)(iii);
iv. Any school, day care center or private or public park or playground, whether inside or outside the Ontario city limits; OMC § 9-3.1715(d)(1)(A)(iv);
v. Any retirement or convalescent hospital, whether inside or outside the Ontario city limits; OMC § 9-3.1715(d)(1)(A)(v);
vi. Any recreational facility, such as an arcade, skating rink, bowling alley, etc., whether inside or outside the Ontario city limits; OMC § 9-3.1715(d)(1)(A)(vi);
vii. City Hall or other government buildings; OMC § 9-3.1715(d)(1)(A)(vii);
viii. Libraries whether inside or outside the Ontario city limits; OMC § 9-3.1715(d)(1)(A);
ix. Any truck stop whether inside or outside the Ontario city limits. OMC § 9-3.1715(d)(1)(A)(ix).
b. No adult business may locate within 300 feet of another adult business, whether inside or outside the Ontario city limits. OMC § 9-3.1715(d)(2)(B).
c. No adult business may be located on any lot having frontage on or adjacent to freeways or major arterial roads within the Ontario city limits. OMC § 9-3.1700(j)(7); OMC § 9-3.1715(d)(1)(D).
i. Wineville Avenue is not an arterial road.
7. Each of the potential sites within the M2 zone proposed by the City are also in the VI Vintage Industrial Overlay district.
a. Sites in the VI Vintage Industrial Overlay District must be at least one acre in area; OMC § 9-3.1960;
b. Buildings in the VI Vintage Industrial Overlay District must have a front yard of at least 50 feet; OMC § 9-3.1965.
c. Buildings in the VI Vintage Industrial Overlay District must have side yards of at least 10 feet; OMC § 9-3.1970. This area may be used for parking spaces. OMC § 9-3.1996.
d. Buildings in the VI Vintage Industrial Overlay District must have a floor-area ratio of 55% or less. OMC § 9-3.1996.
8. The code also provides that "[n]o residential structure or any other nonconforming structure shall be converted for use as an adult business"; OMC § 9-3.1715(d)(2)(B).
9. The code also requires that adult businesses meet specifications for lighting, security, general upkeep and to screen windows and take other precautions to ensure that the interior of the businesses is not visible from any public area. OMC § 9-3.1717(d)(2)(A)-(G).
10. Adult Businesses are also subject to a Conditional Use Permit process. OMC § 9-3.1705(a-1).
11. Ontario's municipal code limits the types of commercial establishments that may exist in M2 zones. Banks, electrical equipment sales, lumber yards, and restaurants are among the businesses permitted in the manufacturing zone. OMC § 9-3.1705.
12. The adult business ordinance provides for a two-year amortization period for businesses made nonconforming as a result of the ordinance. OMC § 9-3.3235(a).
13. The ordinance also provides for a mechanism through which the Ontario Planning Commission may extend the amortization period if it finds that the two-year period places an unreasonable burden on the adult business. OMC § 9-3.3237(c)(2).
5. Plaintiffs appealed to the Ontario City Council, who affirmed the decision of the Planning Commission. Plaintiffs did not challenge either decision by seeking a writ of administrative mandamus.
6. To date, Plaintiffs have not sought a CUP for a location within the M2 area.
7. Plaintiffs' business currently operates pursuant to a agreement by the City not to enforce the ordinance until this case was heard on its merits.
The City proposes 25 sites as "available" for use by adult businesses.1 See Def.'s ex. O.
This is a 2.655 acre site located on land currently used as a winery along Wineville Avenue. According to the City, this land must be subdivided in order to meet zoning specifications.
This is a 1.61 acre site on which are located two divisible mixed-use buildings. This property fronts on Airport Drive, which is defined as a major arterial road. Adult businesses may not locate on property fronting on major arterial roads. This site must therefore be subdivided.
This is a 1.945 acre site on which two divisible multi-tenant mixed-use buildings are located. This site could accommodate one adult business due to the zoning requirements setting forth the minimum distances between adult businesses. If site 23808138 is subdivided and an adult business is located on the portion of the property not fronting Airport Drive, then this property must also be subdivided in order to meet the minimum distance zoning requirements. The buildings on this site do not conform with the 50 foot setback requirement in the Vintage Industrial Overlay District.
This is a 26.738 acre site on which is currently located a 214,600 square foot warehouse. The City proposes the front portion of this property, currently used for a driveway and for landscaping, as a possible site for an adult business.
This is vacant land comprising 3.220 acres.
This is vacant land comprising 10.320 acres.
This is vacant land comprising 5.006 acres.
This is vacant land comprising 0.167 acre. This site fronts on property dedicated to Southern California Edison but is not immediately adjacent to an existing road.
This is vacant land comprising 0.616 acres. This site fronts on the Southern California Edison easement but also abuts Santa Ana street.
This is vacant land comprising 39.660 acres. This land fronts on Etiwanda Avenue, which is defined in the Ontario Master Plan as a major arterial road. This property would therefore require subdivision before it could legally serve as a site for an adult business.
This is vacant land comprising 2.981 acres. This land fronts on Milliken Avenue, which is defined in the Ontario Master Plan as a major arterial...
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