Posted by: Patricia Salkin | July 10, 2016

Fed. Dist. Court in NE Denies Leave to Amend Complaint alleging 2015 Amendments to Zoning Ordinance Addressing Adult Entertainment Business Were Vague and Overbroad

Plaintiff Shane Harrington filed his initial complaint in this matter on May 15, 2015 raising numerous allegations against multiple defendants claiming Defendants were unlawfully impeding his ability to open an adult entertainment venue in Hall County, Nebraska, and Harrington had incurred damages as a result of this conduct. The proposed amended complaint alleges the Hall County zoning amendments passed in 2015 are vague, overbroad, and violated Plaintiffs’ rights of association, assembly, and free speech.

The court’s prior opinion held that Harrington had no constitutional standing to challenge the zoning amendments at issue because he failed to allege an injury-in-fact that is concrete in nature and particularized to him; specifically, Harrington had not alleged he would be able to purchase or lease land suitable for his intended club in Hall County. Harrington attempted to remedy this defect by alleging: he would have the “opportunity” to purchase land in Hall County and establish his intended business but for the 2015 zoning ordinances; and the ordinances at issue were vague and overbroad. However, Harrington was unable to show that he owned property, or that there was a “substantial probability” he would acquire property, and therefore did not suffer an injury-in-fact.

As to the Equal Protection claims, Plaintiffs argued Hall County did not subject a strip club previously located in the City of Grand Island – the Edge – to the zoning restriction now placed upon any Adult Establishment under the county’s 2015 zoning amendments. The court found that the Plaintiffs and the Edge could not be “similarly situated” for the purposes of the Equal Protection Clause since the Edge had not been in business since 2013 and it apparently operated in the City of Grand Island – beyond the reach of the Hall County zoning ordinances.

Lastly, Plaintiffs asserted the County violated the Nebraska Open Meeting Act by failing to provide Harrington with “reasonable notice of a public meeting where a petition against Shane Harrington was submitted for the purposes of stopping him from opening a legal business in Hall County.” Plaintiffs also argued notice of the meeting was insufficient; however, the County published notice of its May 5, 2015 meeting on April 29, 2015 in the Grand Island Independent newspaper. Plaintiffs also argued the description of the proposed May 5, 2015 meeting agenda was insufficient because it omitted his name. Here, the proposed agenda item stated: “Accept Petition from citizens concerned with potential adult entertainment establishment ….” which was sufficient to notify the public of the issues raised. Accordingly, there was no violation of the Nebraska Open Meeting Act.

Harrington v Hall County, 2016 WL 3950745 (D. NE 7/1/2016)

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