Posted by: Patricia Salkin | November 4, 2009

More Searching Scrutiny Is Required Where Adult Uses are not Allowed As of Right, but Rather are Subject to Special Use Permit Review

The Village’s Board of Trustees denied Chicago Joe’s request for a special use permit to locate in the office/industrial district of the Village since the proposed use violated the zoning code which prohibited adult use facilities form serving alcohol on site. Chicago Joe’s challenged §10-7-4 of the Zoning Code which held “the Board may authorize a special use permit only if it: (1) is necessary for the public convenience at the location; (2) is designed, located, and proposed to be operated so that the public health, safety, and welfare will be protected; and (3) will not cause substantial injury to property values. The Court previously rejected this challenge as applied, but considered the claim that § 10-7-4 was unconstitutional on its face as an alleged “restraint of expressive activities protected by the First Amendment because it vest[ed] ‘unbridled discretion’ in the Board to deny a special use permit to adult entertainment venues” that wanted to “locate in the office/industrial district of the Village.”  The Village contended that the court should have read the ordinance as a whole, arguing “that even if § 10-7-4 is indefinite on its own, the section adequately restrains the Board when it is read alongside the rest of the Zoning Code, and in light of the requirements of Illinois law.” 

After noting that the law of regulating adult facilities has not been straightforward, the court noted that summary judgment would be inappropriate since there is a dispute as to the quantity of land in the Village available for adult use facilities without recourse to the use of a special permit.  In noting differences between the Seventh Circuit and the Second Circuit, the Court held that courts must subject comprehensive regulations which provide no space where adult use facilities may locate as of right to more searching scrutiny.  Since here, the parties dispute how much land is unavailable for adult use establishments without a special permit, the Court said it could not scrutinize the constitutionality of the ordinance without more facts.    

Chicago Joe’s Tea Room, LLC v. Village of Broadview, 2009 WL 3151856 (N.D. Ill. 9/25/2009).

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