2005/06/15 Council Agenda Packet

attacks grounded in the Fi rst and Fourteenth Amendments to the Constitution of the United States, the Court sustained the ordin- ance on the dual bases chat: 1 The ordinance was a reasonable response to demonstrat- ed adverse land -use and property value effects asso- ciated with sexually -oriented enterprises; and Z. the ordinance silenced no message or expression but merely placed geographic restrictions upon where such expression could occur. while an exhaustive analysis of the Youno decision is beyond the scope of this discussion, the following generalized luralit Principles may be gleaned from the P y, concurring and dissenting opinions of the Justices. First, host' 1 i ty to constitutionally protected speech is an impermissible motive. The more apparent and rational the relationship of the adult use restrictions to recognized zoning objectives; such as the preservation of neigh- borhoods and the grouping of compatible uses, the greater the likelihood that the restrictions will be upheld. Second, even a properly motivated ordinance will be invalidated if it unduly burdens first amendment rights. For example, an ordinance imposing locational restrictions that are so severe as to result in an inability to accommodate the present or anti- cipated number'of adult businesses in a municipality will cer- tainly be struck down. The Younq court repeatedly moored its de- cision upholding the Detroit ordinance upon the finding that numerous sites complying with the zoning requirements were a- vailable to adult businesses and that the market for sexually - explicit fare, viewed as an entity, was therefore "essentially unrestrained". Third, ordinances which are so vague in wording and definition- that a non -pornographic entrepreneur is unclear whether he falls within its proscriptions may be violative of due process. A vague ordinance may operate to hinder free speech through use of language so uncertain or generalized as to allow the inclusion of protected speech within its prohibitions or leave an individual or law enforcement officers with no specific guidance as to the nature of the acts subject to punishment. Finally, an ordinance which authorizes the exercise of broad discretionary power by administrative officials to determine which adult business will be allcwed to operate, especially if the exercise of such discretion is not grounded on objective, ascertainable criteria, wi l l probably be disapproved as contrary to the precept that, in the First: Amendment area, ('government may regulate only with narrow speci fici tyl . EVER00086