Plaza Group Prop. v. Spencer County Plan
| Decision Date | 13 December 2007 |
| Docket Number | No. 74A01-0703-CV-145.,74A01-0703-CV-145. |
| Citation | 877 N.E.2d 877 |
| Parties | PLAZA GROUP PROPERTIES, LLC, Robert W. Allen, and Fuel in Dale, LLC, Appellants-Defendants, v. SPENCER COUNTY PLAN COMMISSION and Spencer County Board of Commissioners, Appellees-Plaintiffs. |
| Court | Indiana Appellate Court |
John D. Cox, Lynch, Cox, Gilman & Mahan PSC, Louisville, KY, H. Louis Sirkin, Jennifer M. Kinsley, Scott R. Nazzarine, Sirkin, Pinales & Schwartz LLP, Cincinnati, OH, Attorneys for Appellants.
John G. Wetherill Rockport, IN, Attorney for Spencer County Plan Commission.
Francis H. Lueken, Jr., Ferdinand, IN, Attorney for Spencer County Board of Commissioners.
Scott D. Bergthold, Chattanooga, TN, Attorney for Appellees.
The parties' dispute requires us to determine the constitutionality of portions of Spencer County's sexually oriented business ordinances. While there is an abundance of caselaw addressing the constitutionality of similar ordinances, discerning the relevant precedent has been compared to "reading the tea leaves." Triplett Grille, Inc. v. City of Akron, 40 F.3d 129, 134 (6th Cir.1994).
Appellants-defendants Plaza Group Properties, LLC, Robert W. Allen, and Fuel in Dale, LLC (collectively, Plaza), appeal the trial court's grant of summary judgment in favor of appellees-plaintiffs Spencer County Plan Commission and Spencer County Board of Commissioners (collectively, the County). Plaza first argues that it was lawfully using the property when the County enacted the sexually oriented business ordinances; thus, it is entitled to continue its lawful use even though the newly enacted ordinances prohibit it from operating a sexually oriented business on the property. Alternatively, if we find that Plaza's use was nonconforming at the time the ordinances were enacted, Plaza urges us to find the sexually oriented business ordinances unconstitutional pursuant to the First Amendment to the United States Constitution.
Because we conclude that there is not a genuine issue of material fact that Plaza made more than $5,000 of renovations to the property without receiving a building permit, Plaza is not entitled to lawful nonconforming use status on the property. And because we determine that the portions of the sexually oriented business ordinances at issue do not unconstitutionally burden protected speech, we reject Plaza's argument that the challenged ordinances are unconstitutional. Therefore, we conclude that the trial court properly granted summary judgment in favor of the County and it was within the trial court's discretion to enter a permanent injunction prohibiting Plaza from operating a sexually oriented business on the property. Thus, we affirm the judgment of the trial court.
Plaza purchased a truck stop (the property) in Spencer County on October 21, 2005. The property consists of a main building, a motel, and a convenience store and is located "off a highway interchange in an extremely rural area with only one residence within a mile." Appellants' Br. p. 22. Without receiving a building permit, Plaza began remodeling the main building in late October.
After learning about the remodeling, the County issued a stop-work order for the property on November 16, 2005. On December 8, 2005, the County filed a complaint for an injunction against Plaza, alleging that Plaza was violating the County's building and zoning ordinances. The trial court issued a temporary restraining order based on Plaza's failure to comply with the County's building ordinances and enjoined Plaza from using the main building to conduct, maintain, or continue to operate a sexually oriented business.
Theresa Cail, the County Administrator, attests that Plaza is the first sexually oriented business to seek operation in Spencer County in the past twenty years. Appellants' App. p. 210.2 Prior to Plaza's purchase of the property, the County's zoning ordinances required sexually oriented businesses to obtain a special exception permit but did not specifically regulate businesses of this nature. Thus, the County Plan Commission held a public hearing on November 10, 2005, and formally adopted ordinance 2005-10 on November 28, 2005, which provides, in relevant part, that "[n]o person shall operate or maintain an Adult Organization[3] within 1000 feet of any church, school, daycare center or preschool, or residence [in Spencer County]" (the 1,000-foot restriction). Id. at 145-46. The ordinance also limits an adult organization's hours of operation and prohibits nudity as provided in Indiana Code section 35-45-4-1.4
On December 28, 2005, the County adopted ordinance 2005-11, which details additional licensing requirements for sexually oriented businesses in the County and also contains the 1,000-foot restriction. Id. at 167. Specifically, the ordinance provides that "[i]t shall be unlawful for any person to operate a sexually oriented business in Spencer County without a valid sexually oriented business license." Id. at 157.
It is undisputed that Plaza seeks to run a sexually oriented business and that its property is within 1,000 feet of a residence. On January 4, 2006, the County filed an amended complaint for injunction, requesting that the trial court enter a temporary restraining order, preliminary injunction, and permanent injunction against Plaza because Plaza had failed to apply for and obtain a building permit before renovating its property. Additionally, the County alleged that Plaza had violated ordinances 2005-10 and 2005-11 by not applying for and obtaining a sexually oriented business permit.
Plaza and the County entered into an agreed preliminary injunction order on January 25, 2006, which enjoined Plaza from occupying the property's main building before obtaining a building permit. Furthermore, the parties agreed that Plaza would not "operat[e] a sexually oriented business, as defined in Spencer County Ordinance No.2005-11, on any of the [property]." Id. at 172.
Plaza answered the County's complaint on January 30, 2006, and filed a counterclaim, alleging that ordinances 2005-10 and 2005-11 are unconstitutional on their face and as applied pursuant to the First Amendment to the United States Constitution and "related provisions of the Indiana Constitution." Appellees' App. p. 52-53. The underlying litigation has focused exclusively on the ordinances' constitutionality pursuant to the federal constitution.
The County moved for summary judgment on May 8, 2006.5 Plaza filed a cross-motion for summary judgment on June 15, 2006. The trial court held a hearing on the parties' motions for summary judgment on February 20, 2007, and entered partial summary judgment in the County's favor on March 9, 2007, finding as follows:
The Court will first address the constitutionality of Spencer County Ordinances 2005-8, 2005-9, 2005-10, 2005-11. Some matters are beyond dispute. Hours of operation restrictions for adult businesses, many of which are more restrictive than those in question, have been upheld as constitutional in numerous federal appellate decisions. Similarly, federal appellate courts have upheld interior configuration operational requirements as a valid means of preventing illegal sexual behavior in adult business. And stripper-patron buffers have passed constitutional muster.
The ordinances contain procedural safeguards. That is, the licensing requirements provide for a relatively quick decision and allow for prompt judicial review of that decision. The county ordinances allow for alternative sites. And there has been no real argument that the ordinances are in any way vague, overbroad or violative of anyone's equal protection rights.
In passing the ordinances cited above, the County relied on numerous studies, reports and appellate cases. The defendants argued that these reports must be significantly tailored to the locality in question. The Court rejects this argument.
In adopting regulations, the [United States] Supreme Court in [City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 51, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986) ] said that the County may rely upon evidence "reasonably believed to be relevant" to the secondary effects of sexually oriented businesses. The County's reliance satisfied this requirement.
Finally, the defendants rely on the New Albany II case for the proposition that the County ordinances are not narrowly tailored as to the location requirements. [New Albany DVD, LLC v. City of New Albany, 362 F.Supp.2d 1015, 1022 (S.D.Ind.2005).] That case was the decision of a [federal district] court.
This Court rejects the reasoning in that decision. The fact that there may be imagined less-restrictive alternatives does not negate the fact that the ordinances provide reasonable alternative avenues of communication. Adult businesses have not been denied a reasonable opportunity to open and operate. The regulations restricting operations within 1,000 feet of a residence are valid.
Based on the above, the Court concludes that the ordinances in question are constitutional.
The Court will next address the building ordinance/building permit issue. Spencer County Ordinance 2005-02 is a valid ordinance requiring owners of real property to apply for and obtain a building permit prior to the alteration or remodeling of any building or structure the cost of which exceeds $5,000. The Court is eliminating any costs for painting or carpeting or anything that might be considered redecorating. Even in doing so, the evidence is overwhelming through affidavits and photographs of the many alterations done to the main building that the reasonable cost of those alterations far exceeded $5,000. The affidavits of the [County] identify many and numerous alterations and the estimated cost therefore which were totally ignored by [Plaza's] affidavits.
The evidence before the Court can only lead to the conclusion that the defendant began extensive alterations and remodeling of the main building without first...
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