Posted by: Patricia Salkin | October 28, 2014

Fed. Dist. Court in MD Grants Summary Judgment Dismissing Constitutional Claims that County Zoning Ordinances Restricted Adult Entertainment Businesses

This case arose from a constitutional challenge to Prince George’s County zoning ordinances restricting “adult entertainment” businesses.  A motion for a preliminary injunction was filed by Plaintiffs Maages Auditorium; CD15CL2001, Inc., d/b/a Bazz and Crue and X4B Lounge; D2; and John Doe and Jane Doe, for all those similarly situated, to with a motion to dismiss or, in the alternative, for summary judgment was filed by Defendant Prince George’s County. Plaintiffs asserted eight counts in their complaint. Count I claims that the stricter regulations of CB–46 and CB–56 burden only “adult entertainment” and therefore violate the Equal Protection Clause. Counts II and VII challenge the zoning regulations as violating the First Amendment, specifically that the regulations lack the required evidentiary support (Count II) and fail to provide adequate alternative avenues of communication (Count VII). Plaintiffs claim that the Special Exception process lacks adequate procedural safeguards (Count III); contains terms that are unconstitutionally vague (Count V); and allows for unbridled administrative discretion (Count VI). Count IV claims that the effect of CB–46 and CB–56 constitutes a taking of property for which Plaintiffs have not been provided due process nor just compensation. Finally, Count VIII alleges that the zoning regulations do not provide for an adequate amortization period as required by Maryland law.

As a preliminary matter, the Plaintiffs did not allege that John and Jane Doe were individuals who wished to keep their identities private, and did not make an over breadth challenge, so the court granted to dismiss them as parties. As to the issue of substantial government interest, since Plaintiffs had not provided any evidence to rebut the showing that CB–46 and CB–56 will combat the negative secondary effects of adult entertainment businesses, Defendant’s motion for partial summary judgment was granted.  Plaintiffs further claimed that the Special Exception acts as a license and that its criteria vests “unbridled administrative discretion” in the hands of County officials.  However, the court found that although the provision speaks of the normally amorphous concept of “public welfare,” its placement alongside the phrase “injurious to property or improvements in the neighborhood” militates against an expansive reading of the provision, confined as it is to concerns about land and infrastructure. Accordingly, the Defendant’s motion for Summary Judgment was granted as to those counts of Plaintiffs’ complaint that fall under the “prior restraint” heading, namely Counts II, III, V, and VI.  As to the takings claim, it was not certain yet whether a regulatory taking is an actual issue in this case given that most of the Special Exception applications are pending. While D2’s application has been denied, there was no evidence that it has availed itself of the state’s inverse condemnation procedures, and thus, this claim was dismiss as unripe.

Finally, while courts have held that “the number of sites available must merely be greater than or equal to the number of adult entertainment businesses in existence at the time the new zoning regime takes effect, the unique aspects of the six businesses currently located in zones other than I–2 led to the conclusion that they should be included in considering the adequacy of the available sites. This was especially true now that D2’s application has been denied, seemingly placing it amongst the eight other businesses requiring a new location. Consequently, there is a material dispute of fact on the issue of the adequacy of alternative avenues of communication and Defendant’s motion for summary judgment on Count VII will be denied. Furthermore, an amortization period is insufficient only if it puts a business in an impossible position due to a shortage of relocation sites. Because there was a genuine issue of material fact as to the adequacy of the alternative avenues of communication, the court could not yet rule on the amortization period.

Maages Auditorium v Prince George’s County, 4 F. Supp.3d 752 (D. MD 3/5/2014)

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