Posted by: Patricia Salkin | April 16, 2017

Fed. Dist. Court of NE Grants County’s Motion to Dismiss Claims Challenging Ordinances Restricting Adult Entertainment Establishments

Plaintiff Shane Harrington sought a location for an adult entertainment venue in Seward County, Nebraska. To this end, Harrington spoke with the County’s zoning administrator, who allegedly encouraged him to purchase a building in a remote area of the county. Harrington then entered into an option contract for the purchase of the building, conditioned on receiving necessary approvals from the County, and provided for a July 15, 2015 closing date; this date would be “automatically extended” to accommodate the County’s review, however any extensions beyond September 15 required the express permission of the seller. Harrington alleged that from May to October 2015, the County intentionally delayed his application and held “secret meetings” on the proposal. In September, before any adjudication on Harrington’s requests, the County adopted a new zoning resolution (“the 2015 ordinance”) which further regulated adult establishments. Under the 2015 ordinance, adult entertainment venues were permitted by right in C-2 highway commercial districts, thereby eliminating the need for Harrington’s rezoning request. The ordinance also included regulations not previously included in the 2007 ordinance, such as a prohibition on alcohol, and certain restrictions pertaining to the touching of semi-nude dancers. As a result of the County’s actions, Harrington claimed he was “required to relinquish his purchase option for the subject property.” In this case, Harrington attacked several provisions of the two ordinances on constitutional grounds, and claimed that the County deprived him of property without due process of law.

The record indicated that the 2015 ordinance was approved and went into effect after September 15. Thus, it appeared as though Harrington’s purported loss of the option contract was based not on the substance of the 2015 ordinance, but rather on the terms of the operative agreement. The court was unable to infer that such causal relationship existed, but Harrington also asserted facial challenges to the 2015 ordinance, suggesting that his purported injury extended beyond the option contract. Despite this assertion, the court found that challenging an ordinance based on vagueness or overbreadth does not, itself, excuse or obviate the requirement of constitutional standing.

Harrington next alleged that the 2007 zoning ordinance effectively banned all sexually oriented businesses by “prohibiting Adult Establishments in over 99.9% of Seward County.” He further contended that an hours of operation provision, which required adult businesses to close from 12:00 a.m. to 6:00 a.m., amounted to an unlawful prior restraint. Fatal to this claim, however, was the fact that Harrington did not own, or sufficiently allege an intention to own, property in the County, so that he would “benefit in a tangible way from the court’s intervention.” Absent the necessary allegations of demonstrable, particularized injury and redressability, the court held that there could be “no confidence of a real need to exercise the power of judicial review.” Accordingly, to the extent that Harrington challenged the hours of operation restriction in the 2007 ordinance, the claim was be dismissed without prejudice.

Even assuming the existence of a property interest, the court found the nature of Harrington’s due process claim was unclear. While Harrington claimed not to have received proper notice of a June 22 meeting, public records were published in local newspapers in the weeks prior to the commission’s meeting. Furthermore, the publicly-available transcript of the meeting reflected that Harrington and his attorney were not only in attendance at the June 22 meeting, they presented at it. Moreover, even assuming that he had a property interest, his takings claim was unripe since he had not adequately pursued available state law remedies, such as the filing of an inverse condemnation action. Lastly, as to the Open Meetings Act claim, the Court declined to exercise supplemental jurisdiction.

Harrington v. Seward County, Nebraska, 2017 WL 1080931 (NE 3/22/2017)

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