Walker v. City of Kansas City, Mo., 87-0939-CV-W-8.

• Decision Date: 28 June 1988
• Docket Number: No. 87-0939-CV-W-8.,87-0939-CV-W-8.
• Parties: Joe E. WALKER, Jr. d/b/a Last Chance Lounge, Plaintiff, v. CITY OF KANSAS CITY, MISSOURI, Defendant.
• Court: U.S. District Court — Western District of Missouri

691 F. Supp. 1243

Joe E. WALKER, Jr. d/b/a Last Chance Lounge, Plaintiff, v. CITY OF KANSAS CITY, MISSOURI, Defendant.

No. 87-0939-CV-W-8.

United States District Court, W.D. Missouri, W.D.

June 28, 1988.

Errol Copilevitz, John P. Jennings, Jr., Janet Davis Baker, Copilevitz, Bryant, Gray & Jennings, P.C., Kansas City, Mo., for plaintiff.

Dan G. Jackson, III, Asst. City Atty., Kansas City, Mo., for defendant.

MEMORANDUM OPINION AND ORDER

STEVENS, District Judge.

Plaintiff Joe Walker brought this suit against the city of Kansas City, Missouri alleging that his constitutional rights were violated when the city, after a long delay, denied his application for C-X zoning. Walker wants to have go-go dancers at his bar and the city requires C-X zoning for establishments with "exotic dance" facilities. A hearing was held on plaintiff's motion for a preliminary injunction after which the parties submitted post-trial briefs and agreed that the preliminary injunction hearing could be consolidated with the trial on the merits in accordance with Fed.R.Civ.P. 65(a)(2). Plaintiff reserved his right to a subsequent hearing on the issue of damages, however. Thus, this memorandum opinion and order addresses the issues involved in plaintiff's request for an injunction but leaves open the issue of appropriate relief for determination at a later date.

Plaintiff has owned the Last Chance Lounge for approximately fifteen years. The lounge, which is located at the northeast corner of Noland Road and 350 Highway, currently operates as a cocktail lounge. The area surrounding the lounge contains a mixture of commercial and residential establishments. A park, with several baseball diamonds used by people of all ages, is in the vicinity of the lounge. Bruce Fowler, the city planner who worked on the application, testified that the Blue River acts as a natural buffer, separating the park from the Last Chance Lounge.

Plaintiff testified that business had been terrible in the three-to-four-year period preceding 1985. As a result, he informally canvassed his customers¹ to determine if they would like go-go dancers at the bar. Response to this poll was extremely positive and, as a result, Walker decided to apply for the necessary zoning change. Section 39.156 of the Kansas City, Missouri Zoning Ordinance provides that an exotic dance facility² must have C-X zoning. C-X zoning is an "overlay" zoning category which exists in connection with some other category of zoning. Under the city's zoning ordinance, C-X zoning may only be established in C-2 (local retail business district), C-3 (intermediate business), and C-4 (central business district) zones. The Last Chance Lounge is located in an area zoned C-2.

In addition to the limitation on the types of zoning C-X may overlay, certain geographical limits exist on its use. C-X zoning may not be established "within 1000 feet of any church, school or area zoned for residential use" nor will "more than two of the uses³ regulated by this section ... be located within 1000 feet of each other." The ordinance provides, however, that these two limitations may be waived if the person applying for the waiver files a petition with the City Plan Commission "which indicates approval of the proposed regulated use by 51% of the persons residing or owning property within a radius of 1000 feet of the location of the proposed use." Walker filed a legally sufficient waiver petition with the City Plan Commission.

On April 1, 1986 Bruce Fowler, the planner in charge of the project, issued the staff report recommending that the city council approve the rezoning. The report stated that

the staff feels that the subject site is one of the more suitable locations in the city for a C-X district to be established. It is on a major artery in a relatively isolated area with small businesses and distinct boundaries along the highway and with few residences in the immediate vicinity.

On April 18, 1986 the ordinance recommending the rezoning had its first reading before the council. No opposition to the proposal was presented at this time. On the same date John W. Laney, director of the City Development Department, filed an "Ordinance Fact Sheet" on the proposed zoning. That fact sheet notes that Walker filed the waiver petition required when a proposed use is located within 1000 feet of property zoned for residential uses. The fact sheet contains a section for staff comments where Laney noted that

in reviewing this request, the staff is aware that the City Council, by establishing the C-X district in the zoning ordinance, determined that C-X uses are appropriate in Kansas City. Therefore, the criteria used to review the suitability of the subject property must not be such that they would rule out every site in Kansas City.

The matter was next brought before the Plans and Zoning Committee on May 7, 1986, when it was put on hold until the May 14, 1986 meeting. At the May 14 meeting the committee voted to put the matter on semi-annual hold. As a result, it was not considered again until January 15, 1987 when the committee recommended that the matter be continued on hold. On January 16, 1987 the city council adopted the committee's recommendation and the matter was again placed on hold. Approximately five months later, at the May 28, 1987 meeting, the committee again recommended to put the matter on hold.

Shortly after the May 28 meeting Jackson County filed a petition of protest against the ordinance pursuant to section 39.355 of the Zoning Ordinance. This section provides that when a legally sufficient petition of protest has been filed about a proposed zoning change, a favorable vote of three-fourths of the members of the city council is required to approve the change. On June 19, 1987, three days after it was filed, the city's law department ruled that the petition of protest was legally sufficient. The City Development Office determined that the petition was legally sufficient on June 26, 1987. On July 8, 1987 the city council's docket committee recommended that the matter again be put on indefinite hold and the city council adopted this measure at its meeting on July 9, 1987.

On August 6, 1987 a second reading of the ordinance was scheduled. This reading was prompted by City Council Rule 28 which provides that "all ordinances and resolutions must be reported by a committee within twenty days after the date of reference therein." If the ordinance is not so reported, any member of the council may call the matter out and it will be placed on the docket at the next meeting for a second reading.

A week later, on August 13, 1987, the city council began to consider the proposed rezoning. While the city council members discussed a number of issues, debate on the proposal centered on whether the council should vote on Walker's application at the August 13 meeting or put the matter on hold for one week. The fact that the city had not yet completed its proposed Land Use Plan for the area where the Last Chance Lounge was located caused some city council members to argue for another hold until the plan was completed. Those advocating a hold believed that a vote should not be taken on the ordinance until the council knew whether it would be in a better legal position if it waited to decide the issue until after the Land Use Plan had been developed. Council members opposing the hold argued that the council was going to defeat the measure in any event and should take a vote at the August 13 meeting rather than continue to postpone consideration of the issue.⁴ The city council voted to hold the matter for one week while it sought legal advice about the ramifications of voting on the proposal before the Land Use Plan was approved. At the August 20 meeting the city council decided to put the matter on hold until December 17, 1987, when the Land Use Plan for the area would be finished.

At the December 17 meeting the city council voted against passage of the ordinance and, as a result, Walker is not permitted to have exotic dancing at the Last Chance Lounge. He argues that the numerous delays leading up to the ultimate city council vote constitute a violation of his constitutional right to due process under the fifth and fourteenth amendments of the United States Constitution and that the ordinance as applied to him constitutes a violation of the first amendment of the Constitution. Although the court does not believe that the city council violated Walker's rights under the due process clause, it does conclude that the ordinance, as applied to Mr. Walker, constitutes a prior restraint in violation of the first amendment. The basis for each of these decisions is discussed below.

I. Due Process Claims

Walker argues that the numerous delays leading up to the December 17, 1987 city council vote and the council's decision to deny his request for rezoning constitute a violation of his due process rights under the fifth and fourteenth amendments. This argument must fail for a number of reasons. First, it is clear that when considering the propriety of zoning ordinances courts must defer to legislative judgment "if the validity of the legislative classification for zoning purposes is fairly debatable...." Village of Belle Terre v. Boraas, 416 U.S. 1, 4, 94 S.Ct. 1536, 1538, 39 L.Ed.2d 797 (1974) (quoting Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 388, 47 S.Ct. 114, 118, 71 L.Ed. 303 (1926)). Specifically, the Supreme Court has noted that it "will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive." United States v. O'Brien, 391 U.S. 367, 383, 88 S.Ct. 1673, 1682, 20 L.Ed.2d 672 (1968). The court noted that "such inquiries into congressional motives or purposes are a hazardous matter" since "what motivates one legislator to make a speech about a statute is not necessarily what motivates the scores of others to enact it...." Id. at 383-84, 88 S.Ct. at 1682-83.

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