Posted by: Patricia Salkin | January 14, 2014

9th Circuit Court of Appeals Holds City had a Reasonable Need for a 120–Day Period to Complete All Analyses, Including the Required Dispersion Analysis, In Deciding Whether to Grant an Applicant a Permit for Adult Business Use

ATL Corporation argued that the availability of only .62 percent of the City’s total land area is per se insufficient to provide a reasonable number of alternative sites, and thereby, satisfy the conditions of the zoning ordinance in question. ATL further argued the 120–day deadline to make a dispersion determination was a facially unconstitutional prior restraint. The district court granted the City’s motion for summary judgment as to both allegations.

As to the issue of whether the City made a sufficient showing of a reasonable number sites. The Court of Appeals held that the list of sites provided by the City did not give the district court a basis for determining that any particular site would be available for use because the City conceded at oral argument that it had not identified the properties that were legally permitted for sensitive uses or for adult cabaret uses but were not presently operating. Furthermore, because any parcel on the list could be located within the buffer zone for properties permitted for such sensitive or adult uses, there was insufficient evidence that any particular parcel on the list was reasonably available for use by an adult cabaret. Finally, the City failed to account for the fact that its list would be reduced each time a new adult cabaret opened. For these reasons, the Ninth Circuit vacated the portion of the July 19, 2010 order that granted partial summary judgment to the City on this issue.
In analyzing the second claim made by ATL Corporation, the Court of Appeals reasoned that since ATL was collaterally estopped from relitigating the reasonableness of the 120 day deadline in federal court because the identical issue was litigated and decided in a prior state-court action, and ATL was in privity with Robert Davis, a named party to the prior action, the City’s 120 day provision was constitutional. Since Davis is the president and sole officer of both ASF and ATL, used both entities in his efforts to secure a permit for the property at issue, and was in control of the present litigation, the court found that there was a commonality of interest between those entities. Accordingly, the Court of Appeals for the Ninth Circuit held that the district could did not err in granting the City’s motion for summary judgment as to this issue.

ATL Corp. v. City of Seattle, 532 Fed. Appx. 673 (9th Cir. 6/7/2013)(unpublished)

The opinion can be accessed at:

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