Northend Cinema, Inc. v. City of Seattle, 45156
| Decision Date | 19 October 1978 |
| Docket Number | No. 45156,45156 |
| Citation | 585 P.2d 1153,90 Wn.2d 709 |
| Parties | , 1 A.L.R.4th 1284, 4 Media L. Rep. 1732 NORTHEND CINEMA, INC., and A. M. Mushkin, Appellants, v. CITY OF SEATTLE, a Municipal Corporation, Respondent. GAIETY THEATERS, INC., a Washington Corporation, Appellants, v. CITY OF SEATTLE, a Municipal Corporation, Respondent. APPLE THEATER INC., a Washington Corporation, Appellants, v. CITY OF SEATTLE, a Municipal Corporation, Respondent. |
| Court | Washington Supreme Court |
Victor V. Hoff, Charles S. Stixrud, Seattle, for appellants.
Dona M. Cloud, Asst. Corp. Counsel, Seattle, for respondent.
The issues raised here involve the validity of two Seattle city zoning ordinances which have the effect of requiring all adult motion picture theaters as defined in the ordinances, to be located in certain downtown areas, and terminating all nonconforming theater uses within 90 days. The three Seattle theaters prohibited from showing their normal adult fare at their present locations by these ordinances challenge the constitutionality of the zoning enactments in this declaratory judgment action. The court below heard extensive testimony at trial and upheld the validity of the City's action. We affirm.
The amendments to the City's zoning code which are at issue here are the culmination of a long period of study and discussion of the problems of adult movie theaters in residential areas of the City. Following local resident protests against the opening of such a theater in the Greenwood district, the City's Department of Community Development made a study of the need for zoning controls of adult theaters at the request of both the City Planning Committee and the City Council Committee on Planning and Urban Development. The study analyzed the City's zoning scheme, comprehensive plan, and land uses around existing adult motion picture theaters. Of the 46 motion picture theaters operating within the City, 13 showed adult motion pictures exclusively, or almost exclusively. Ten of those 13 were located in downtown areas where such uses are now permitted by the challenged ordinances. The other three, the Ridgemont, the Northend, and the Apple Theater, are in areas outside the designated zones which are characterized by residential uses. These three theaters show "x-rated" films almost exclusively and display advertisements indicating the nature of the films on the theater marquees or fronts. 1 The Department's study concluded that zoning action should be taken to confine adult motion picture theaters to downtown Seattle, and recommended that a conditional use approach be adopted for adult theaters in other areas.
The Department's study and recommendation were taken up by the City Planning Commission, which held public meetings and a joint public hearing with the City Council Committee on the subject. At the public hearing Greenwood residents spoke of their concerns regarding the deterioration of residential neighborhoods that accompanies location of adult movie theaters. The concerns expressed were very specific and included the attraction of transients, parking and traffic problems, increased crime, decreasing property values, and interference with parental responsibilities for children. The Planning Commission subsequently voted to recommend that the City zoning code be amended to confine adult theaters to downtown areas and phase out nonconforming uses. The Commission opposed any conditional use plan for other zones.
The neighborhoods in which the three appellant theaters are located have a distinctly residential character. Much effort and money have been invested in long-range improvement plans for these areas. The Greenwood community, in which the Northend and Ridgemont are located, has been the subject of major development plans for years. Millions of dollars of development funds have been invested to improve the quality and conditions of the community. Ongoing projects include improved sidewalks, lighting, and traffic control, and a new shopping mall. The First Hill Community, in which the Apple Theater is located, has not been the subject of such elaborate development plans, but has received substantial funds for neighborhood improvement and is designated a residential area in the City's long range plans. In short, the goal of the City in amending its zoning code was to preserve the character and quality of residential life in its neighborhoods, as specifically found by the court below. A second and related goal, the court found, was to protect neighborhood children from increased safety hazards, and offensive and dehumanizing influence created by location of adult movie theaters in residential areas. These goals are an integral part of the City's long-range land-use planning effort.
Thus in May and June of 1976 the Seattle City Council amended the Zoning Ordinance with Ordinance 105565 enacted on May 28 and effective on or about June 27, 1976, and Ordinance 105584, enacted June 7 and effective on or about July 7, 1976. The combined effect of the ordinances is to create a land use known as Adult Motion Picture Theaters, to prohibit that use in all City zones except the CM (Metropolitan Commercial), BM (Metropolitan Business), and CMT (Temporary Metropolitan Commercial) zones, and to require termination of all nonconforming uses within 90 days of the date the use becomes nonconforming. The land area comprising the permitted zones is approximately 250 acres. No provision is made in the ordinances for conditional uses in other zones.
At the trial on appellant theaters' declaratory judgment action the court heard extensive testimony regarding the history and purpose of these ordinances. 2 It heard expert testimony on the adverse effects of the presence of adult motion picture theaters on neighborhood children and community improvement efforts. The court's detailed findings, which include a finding that the location of adult theaters has a harmful effect on the area and contribute to neighborhood blight, are supported by substantial evidence in the record. Its refusal to enter appellant Apple Theater's proposed findings was not error, as these were either unsupported by the record, or not related to ultimate facts concerning a material issue. In re Kennedy, 80 Wash.2d 222, 492 P.2d 1364 (1972).
The central question raised is whether, in view of these facts, the action of the City in creating the adult motion picture theater use and confining that use to certain zones within the downtown area is constitutional. A second question is whether the City may constitutionally impose a 90-day termination period on nonconforming uses. We answer both questions affirmatively, for the reasons discussed hereafter. We turn first to the constitutionality of the creation and confinement of the adult motion picture theater use.
Appellants make three constitutional arguments against the Seattle zoning provisions. First, they claim the definition of an adult motion picture theater is so vague as to deny them due process of law. Second, they claim the confinement of such theaters to designated zones is an impermissible prior restraint on protected First Amendment speech. Third, they argue the classification of theaters based on the content of the films shown there violates First Amendment and equal protection guarantees.
In response to these contentions we find the decision of the United States Supreme Court in Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976) () dispositive. In that case the court approved the creation and definition of an adult theater zoning use identical in all relevant respects to the Seattle zoning use. It also approved regulation of location for that use. Although appellants argue the Seattle ordinance differs from the Detroit ordinance, those differences do not have constitutional significance, as discussed below. We need not, of course, construe the provisions of our state constitution identically with the corresponding provisions of the federal constitution. Darrin v. Gould, 85 Wash.2d 859, 868, 540 P.2d 882 (1975). In this case, however, we find the reasoning of Young persuasive. It acknowledges and accommodates the important interest of the state in exercising its police power to protect city neighborhoods against degradation, while preserving the democratic principles the constitutional provisions were designed to protect. We therefore find it appropriate to apply the general rule that language in our state constitution will be given the same interpretation as that given the federal constitutional provision by the United States Supreme Court. See Housing Authority v. Saylors, 87 Wash.2d 732, 739, 557 P.2d 321 (1976).
Appellants' first argument is that the definition of Adult Motion Picture Theater (set out in the margin 3 is so vague as to deny them due process of law. They do not attack the included definitions of "Specified Sexual Activities" or "Specified Anatomical Areas," but argue they are not adequately informed of (1) how much "depicting, describing, or relating" to the specified areas is necessary before a film is "distinguished or characterized by an emphasis" thereon; (2) what "depicting, describing or relating to" means; or (3) how frequently such films must be shown before a building is "used" for the purpose.
We note at the outset that the definition of adult theater use contained in the Seattle ordinance is identical in all relevant respects to the definition upheld in Young. 4 Furthermore, as in Young, the complaining theaters show adult films almost exclusively. They do not claim they desire to show any other type of film. Therefore, the ordinance is fully adequate to give them notice of the regulated use, and they have no standing to challenge it for vagueness. Young, supra, 427 U.S. at 59, 96 S.Ct. 2440.
Nor do appellants have standing to assert the First...
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