Texas Nat. Theatres, Inc. v. City of Albuquerque

• Decision Date: 06 January 1982
• Docket Number: No. 13463,13463
• Citation: 1982 NMSC 4,97 N.M. 282,639 P.2d 569
• Parties: TEXAS NATIONAL THEATRES, INC., Plaintiff-Appellant, v. CITY OF ALBUQUERQUE, et al., Defendants-Appellee.
• Court: New Mexico Supreme Court

Page 569

639 P.2d 569

97 N.M. 282

TEXAS NATIONAL THEATRES, INC., Plaintiff-Appellant, v. CITY OF ALBUQUERQUE, et al., Defendants-Appellee.

No. 13463.

Supreme Court of New Mexico.

Jan. 6, 1982.

Rehearing Denied Jan. 20, 1982.

Michael E. Vigil and Jeffrey Libit, Albuquerque, Arthur M. Schwartz, Denver, Colo., for plaintiff-appellant

Pat Bryan, City Atty., Anita P. Miller, Asst. City Atty., Albuquerque, for appellees.

OPINION

SOSA, Senior Justice.

This is an appeal from the district court's order granting a permanent injunction against plaintiff-appellant Texas National Theatres, Inc. (TNT), prohibiting it from operating the 66 Drive-In Theatre (66) as an "adult theater" until such time as the 66 is granted a special use permit by defendant-appellee City of Albuquerque (City).

The property on which the 66 is located was zoned Special Use (SU-1) as a drive-in theatre pursuant to a site development plan submitted on behalf of the 66 and approved by the City in 1964. There were no restrictions on the content of the movies to be shown at the 66 under the 1964 SU-1 permit. Albuquerque, N. M., Comprehensive Zoning Ordinance, § 15(B)(6) (rev. ed 1962). In 1977, the City Council enacted the Adult Entertainment Facilities Ordinance, No. 26-1977 (effective May 11, 1977), amending the Comprehensive City Zoning Code, Albuquerque, N.M., Rev. Ordinances, ch. 7, art. XIV (1974) (hereinafter Code). The amendment regulates adult establishments, listing adult drive-in theatres as special uses, provided they are not located within 500 feet of a residential zone. § 30(B)(10)(d)(1).

The trial court impliedly found that, as of the effective date of the amendment, the 66 became a nonconforming structure as to use because it was an adult theatre located within 500 feet of a residential zone. "Non-conforming" is defined by the Code as "a structure or use of structure or land which does not conform to this ordinance and which was in conformity with any zoning ordinance in effect at the time it was created." § 5(B)(56). The general rule is that nonconforming uses existing at the time of the effective date of a zoning ordinance may be continued. 8A E. McQuillen, The Law of Municipal Corporations § 25.180 (3d rev. ed. 1976). The City allowed the 66 to continue operation under its SU-1 permit regardless of the type of movies shown.

The court concluded that the 66 abandoned its nonconforming use status between 1978 and 1980 by no longer showing adult movies. The court went on to find that there was a change in use from a "regular" to an "adult" drive-in theatre in 1980 when TNT subleased the 66 and began showing adult movies. Based upon this finding, the court concluded that TNT violated the Code by operating an adult theatre within 500 feet of a residential zone and by failing to amend its site development plan as required to obtain a special use permit as an adult theatre. TNT appeals the decision of the lower court. We affirm.

The issues on appeal are:

(1) Whether the Code provision pertaining to the 500 foot restriction is unconstitutionally vague and therefore invalid because the Code fails to specify the manner in which the distance is to be measured.

(2) Whether the court properly concluded that the 66 abandoned its pre-existing nonconforming use status as an adult theatre.

(3) Whether there is substantial evidence to support the court's finding of a change in use from a "regular" to an "adult" drive-in theatre, thereby necessitating an amendment to the site development plan.

The 66 had been operated as a drive-in theatre by Commonwealth Theatres, Inc. from 1964 until September of 1979. Prior to the effective date of the 1977 Code amendment, a variety of films were shown at the 66, some of which contained an emphasis on material depicting or relating to "specified anatomical areas" or "specified sexual activities" as defined by the amended Code. § 5(B)(93) and (94). Accordingly, the 66 was classified by the City as an "adult theater," defined by Section 5(B)(4) of the Code as:

(A) theater, including a drive-in theater, used for presenting material distinguished or characterized by an emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical areas for observation by patrons therein. (Emphasis added.)

In July of 1977, the City Zoning Enforcement Officer (Romero) conducted a survey of local businesses which were nonconforming adult establishments, to be used as an in-house aid for enforcing the Code amendment. The results of the survey were published in an Albuquerque newspaper on October 2, 1978. The next day, Lou Avolio, manager for Commonwealth Theatres, called Romero to tell him that the 66 did not show "pornographic" movies and that it should not have been listed as an adult theatre. Avolio asked Romero to remove the 66 from the list and print a retraction in the newspaper. Romero informed Avolio that removal of the 66 from the list would jeopardize its nonconforming use status as an adult theatre. Avolio stated that he no longer intended to show adult movies at the 66. After TNT subleased the 66 in April, 1980, the 66 again fell under the Code definition of an "adult theater" because of the type of movies shown. The City notified TNT of its violation of the Code. TNT filed a declaratory judgment action seeking a judicial declaration that the operation of the 66 was in full compliance with the Code. The City counterclaimed for a permanent injunction seeking to prohibit the operation of the 66 as an adult theatre.

I.

It is the City's position that TNT violated the Code in two ways: (1) by operating an adult theatre within 500 feet of a residential zone, in violation of § 30(B)(10)(d)(1), and (2) by failing to amend its site development plan, in violation of § 30(A) (discussed infra, Point III).

TNT challenges the 500-foot distance restriction provision on the basis that it is unconstitutionally vague since the Code fails to specify the manner in which the distance is to be measured. Section 30(B)(10)(d)(1) provides:

B. Special Uses:

....

10. Drive-in theater, provided:

....

d. Any adult theater is not

(1) Located within 500 feet from the nearest residential zone ....

In support of its vagueness argument, TNT relies on Justice Blackmun's dissenting opinion in Young v. American Mini Theatres, 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976). The ordinance challenged in Young is virtually identical to the one challenged here. ¹ The dissenters found that it was vague because (1) it failed to specify how much of the described sexual activity or anatomical areas would be allowed before the movie could be characterized as having an "emphasis" on such matter and (2) it failed to specify adequate procedures or standards for obtaining a waiver of the 1,000-foot restriction. TNT's reliance on Young, however, is misplaced for two reasons. First, the dissenters were unable to persuade the majority that the ordinance is vague on the above-described grounds; we are equally unpersuaded. Second, and more important, no vagueness challenge was made on the basis that the ordinance failed to describe the manner of measurement of the distance restriction. Therefore, we cannot rely on either the majority or the dissenting opinions in Young to dispose of the vagueness issue raised here.

The standard for determining whether a given statute is vague was set forth in State v. Dority, 55 N.M. 12, 29, 225 P.2d 1007, 1017 (1950), appeal dismissed, 341 U.S. 924, 71 S.Ct. 798, 95 L.Ed. 1356 (1951).

Legislative enactments may be declared void for uncertainty if their meaning is so uncertain that the court is unable, by the application of known and accepted rules of construction, to determine what the legislature intended with any reasonable degree of certainty. But absolute or mathematical certainty is not required in the framing of a statute. (Citations omitted.)

The same standard was applied to administrative regulations in New Mexico Mun. L., Inc. v. New Mexico Envir. Imp. Bd., 88 N.M. 201, 539 P.2d 221 (Ct.App.), cert. denied, 88 N.M. 318, 540 P.2d 248 (1975), and we now apply it to municipal ordinances.

The entire Code is to be read as a whole and each part is to be construed in relation to every other part so that a harmonious whole is reached. Burroughs v. Board of Cty. Com'rs, Cty. of Bernalillo, 88 N.M. 303, 540 P.2d 233 (1975). It should also be interpreted to mean what the legislative body enacting it intended it to mean, and to accomplish the ends sought to be accomplished by it. Id.; State ex rel. Sanchez v. Reese, 79 N.M. 624, 447 P.2d 504 (1968).

Since the ordinance does not set forth the manner in which the distance is to be measured, we must look at the method employed by the City Zoning Enforcement Officer to determine its reasonableness and whether it has been consistently used. See generally Nye v. Board of Com'rs of Eddy County, 36 N.M. 169, 9 P.2d 1023 (1932). Romero testified that he always measures from lot line to lot line. Using this method of measurement, the 66 lot line is within 500 feet from the nearest residential lot line. TNT presented a surveyor who testified that the 66 is outside the 500-foot restriction if the measurement is taken from either the concrete base of the screen or from any point within the walled area of the premises.

Looking at the ordinance as a whole, it is clear that one of the intended purposes is to regulate the use of adult entertainment facilities which are close to residential areas. The provision is in keeping with the stated purpose of promoting the general welfare of the citizens of Albuquerque. § 2(A). Several provisions of the Code speak in terms of "premises" or "area," indicating that the regulation applies to more than just the structure. The premises on which the 66 is located is zoned SU-1. A "special use zone" allows certain uses which are special because of their infrequent occurrence or their effect on the...