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03/30/88 the County of Cook, v. Renaissance Arcade and

March 30, 1988

THE COUNTY OF COOK, APPELLANT

v.

RENAISSANCE ARCADE AND BOOKSTORE ET AL., APPELLEES (THE VILLAGE OF FRANKLIN PARK, INTERVENING APPELLANT)



SUPREME COURT OF ILLINOIS

522 N.E.2d 73, 122 Ill. 2d 123, 118 Ill. Dec. 618 1988.IL.450

Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Frank G. Sulewski, Judge, presiding.

APPELLATE Judges:

JUSTICE MILLER delivered the opinion of the court.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MILLER

Plaintiff, the County of Cook, filed separate complaints against defendants seeking to enjoin them from operating their respective businesses in violation of the Cook County Zoning Ordinance. The causes were consolidated and the trial court entered an order allowing the Village of Franklin Park to intervene in the cause as a party plaintiff. After defendants' motions to dismiss were denied, the consolidated causes were tried before a Judge in the circuit court of Cook County. At the Conclusion of the trial, the trial Judge entered an order enjoining defendants from operating their businesses at their present locations in violation of the Cook County Zoning Ordinance. The defendants appealed, and the appellate court reversed (150 Ill. App. 3d 6). We granted the plaintiffs' petition for leave to appeal (107 Ill. 2d R. 315).

Plaintiffs filed suit in March 1983 seeking injunctions prohibiting the defendants from operating their businesses in violation of a 1981 Cook County zoning ordinance that allows specified adult uses to operate only in certain zoned areas (1981 Ordinance Amending Certain Sections of the Cook County Zoning Ordinance of 1976) (1981 Ordinance). After a trial, the trial Judge found that the ordinance reasonably regulates and restricts the location of adult uses, and entered an order enjoining the defendants from operating their adult use businesses at their present locations in violation of the ordinance.

The 1981 ordinance follows a 1977 ordinance (An Ordinance Amending the County Zoning Ordinance) (1977 Ordinance), portions of which were held unconstitutional in County of Cook v. World Wide News Agency (1981), 98 Ill. App. 3d 1094. The 1981 Ordinance seeks to regulate adult uses in unincorporated Cook County (defined as adult bookstores, adult entertainment cabarets, adult mini motion picture theaters and adult motion picture theaters (Cook County Zoning Ordinance § 14.2 (1981))), by establishing them as permitted uses in "all 78 industrially zoned areas of 1 -- 2, 1 -- 3 and 1 -- 4 and as special uses in all the 245 commercially zoned areas of C -- 3, C -- 4, C -- 6 and C -- 8" (Cook County Zoning Ordinance § 13.16 -- 1 (1981)). Not more than two adult uses are permitted to be established within 1,000 feet of each other in a commercial zone. (Cook County Zoning Ordinance § 13.16 -- 1 (1981).) To secure a special use application to operate in a commercial zone requires a public hearing before the zoning board of appeals and a decision by the board of commissioners. (Cook County Zoning Ordinances §§ 13 -- 17, 13 -- 10 (1981).) The 1,000-foot restriction in commercial zones may be waived if certain requirements are met. Cook County Zoning Ordinance § 13.16 -- 2 (1981).

The 1981 Ordinance also provides for the amortization of nonconforming, pre-existing adult use establishments. Nonconforming uses are automatically given six months to amortize their businesses, and an additional six months is given to any business which applies for a certificate of nonconformance. (Cook County Zoning Ordinance §§ 13.16 -- 4 -- 1 through 13.16 -- 4 -- 5 (1981).) Nonconforming uses may apply for an amortization period longer than one year. Cook County Zoning Ordinance § 13.16 -- 4 -- 4 (1981).

On appeal from the trial court's order granting the injunction, the appellate court reversed, holding that the 1981 Ordinance unconstitutionally restricted the defendants' first amendment rights. Applying a de novo standard of review, which it felt was mandated by Bose Corp. v. Consumers Union of United States, Inc. (1984), 466 U.S. 485, 80 L. Ed. 2d 502, 104 S. Ct. 1949, the court stated that the ordinance "significantly impedes public access to adult uses," in violation of Young v. American Mini Theaters, Inc. (1976), 427 U.S. 50, 49 L. Ed. 2d 310, 96 S. Ct. 2440. (150 Ill. App. 3d at 15.) The court then held that the ordinance, by permitting adult uses to locate, as of right, only in industrially zoned areas, was unconstitutionally overly broad. The court further stated that the ordinance failed to satisfy the constitutional requirements for adult use zoning ordinances established in City of Renton v. Playtime Theatres, Inc. (1986), 475 U.S. 41, 89 L. Ed. 2d 29, 106 S. Ct. 925. The court held that by relegating adult uses to industrial zones "the county has not left available a reasonable alternative avenue of communication." 150 Ill. App. 3d at 20.

The plaintiffs contend that the 1981 Ordinance provides adequate reasonable alternative channels for communicating sexually explicit materials to the public and satisfies the constitutional standards set forth in Renton. The plaintiffs further argue that amortization of nonconforming uses does not unconstitutionally suppress speech nor does it limit the opportunities for sexually oriented businesses to open and operate. They allege that courts have been increasingly willing to sustain amortization clauses independently of first amendment interests and that the present amortization period provides a sufficient and reasonable amount of time for defendants to relocate. The plaintiffs also argue that two provisions in the 1977 Ordinance prohibiting adult uses from locating within 1,000 feet of each other (Cook County Zoning Ordinance § 13.16 -- 1 (1977)) or within 1,000 feet of any area zoned for residential use or use by churches (Cook County Zoning Ordinance 13.16 -- 4 (1977)) are not contained in the present ordinance and are now inapplicable due to the earlier appellate court case finding certain provisions of the 1977 Ordinance unconstitutional. County of Cook v. World Wide News Agency (1981), 98 Ill. App. 3d 1094.

The defendants contend that the ordinance is unconstitutional, under Renton, for failing to provide adult uses with a reasonable opportunity to operate by restricting them to industrial zones and by unconstitutionally reducing public access to first amendment protected communication. The defendants further argue that the lack of a grandfather clause exempting pre-existing nonconforming adult uses unconstitutionally suppresses expression. Moreover, defendants contend, the amortization period permitted adult uses is unreasonably short. The defendants also allege that the 1,000-foot requirements contained in the predecessor 1977 Ordinance remain in force and apply to adult uses located in permitted industrial zones as well as special use commercial zones.

It is uncontested that cities and municipalities may regulate, through their zoning power, the location of sexually explicit businesses. In Young v. American Mini Theatres, Inc. (1976), 427 U.S. 50, 49 L. Ed. 2d 310, 96 S. Ct. 2440, the Supreme Court upheld the constitutionality of a Detroit zoning ordinance regulating the location of defined adult theatres by prohibiting them from locating within 1,000 feet of any two other regulated uses or within 500 feet of a residential area. A four-Justice plurality found that the ordinance did not violate the first amendment as an impermissible prior restraint, noting that a "city's interest in attempting to preserve the quality of urban life is one that must be accorded high respect." (427 U.S. at 71, 49 L. Ed. 2d at 327, 96 S. Ct. at 2453.) In his concurrence, Justice Powell focused on the interests of the city and the power to zone, noting that "zoning, when used to preserve the character of specific areas of a city, is perhaps 'the most essential function performed by local government.'" (427 U.S. at 80, 49 L. Ed. 2d at 332, 96 S. Ct. at 2457; (Powell, J., Concurring), quoting Village of Belle Terre v. Baraas (1973), 416 U.S. 1, 13, 39 L. Ed. 2d 797, 807, 94 S. Ct. 1536, 1543 (Marshall, J., Dissenting).) Justice Powell analyzed the challenged ordinance under the four-part test of United States v. O'Brien (1968), 391 U.S. 367, 20 L. Ed. 2d 672, 88 S. Ct. 1673, and found that the ordinance was clearly based on a substantial governmental interest and implicated "First Amendment concerns only incidentally and to a limited extent." Young, 427 U.S. at 73, 49 L. Ed. 2d at 328, 96 S. Ct. at 2454.

In Renton v. Playtime Theatres, Inc. (1986), 475 U.S. 41, 89 L. Ed. 2d 29, 106 S. Ct. 925, the Supreme Court again upheld the constitutionality of a city's zoning ordinance against a first amendment challenge. The challenged ordinance was designed to concentrate adult uses by prohibiting them from locating within 1,000 feet of any residential zone, single- or multiple-family dwelling, church, park or school. Because the ordinance did not ban adult theaters altogether, the court analyzed the Renton ordinance as a form of time, place and manner regulation. Content-neutral "time, place and manner regulations are acceptable so long as they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication." (475 U.S. at 47, 89 L. Ed. 2d at 37, 106 S. Ct. at 928.) The Renton ordinance, the Court stated, was aimed at the secondary effects of adult uses, and not at the content of the films shown, and was clearly based on a substantial interest in preventing crime, protecting retail trade and maintaining property values. The ordinance was also narrowly tailored to "affect only that category of theaters shown to produce the unwanted secondary effects." (475 U.S. at 52, 89 L. Ed. 2d at 41, 106 S. Ct. at 932.) In response to the theater owner's contention in Renton that the ordinance did not allow for reasonable alternative avenues of communication, the Court stated that "[i]n our view, the First Amendment requires only that Renton refrain from effectively denying respondents a reasonable opportunity to open and operate an adult theater within the city." (475 U.S. at 54, 89 L. Ed. 2d at 42, 106 S. Ct. at 932.) Because the ordinance left 520 acres or more than 5% of the entire land area of Renton available for adult uses, the Court concluded that it fulfilled this requirement.

The plaintiffs contend that the appellate court misapplied the standards announced by the Supreme Court in Renton, by finding that the industrially zoned areas in which adult uses are permitted do not provide an adequate alternative channel to operate their businesses.

The defendants argue that the appellate court opinion is consistent with Renton because industrial zones do not provide adult uses with a reasonable opportunity to open and operate and dramatically reduce public access to constitutionally protected communication.

Expert witnesses for both the plaintiffs and defendants provided exhaustive findings and research on the suitability and availability of industrial zones for adult uses. The defendants' primary expert witness, a quantitative urban geographer, testified that unincorporated Cook County comprises 190.59 square miles, and that I -- 2, I -- 3 and I -- 4 zoned areas compose 10.8 square miles or 5.7% of the total land areas of unincorporated Cook County. On cross-examination, the defendants' expert admitted that when the Cook County Forest Preserve in unincorporated Cook County is excluded from the total land area measured, the industrial-zoned areas comprise 8.9% of available land.

The appellate court, relying on the defendants' expert witness testimony, found that the industrial zones where adult uses are a permitted use fail to provide those uses a reasonable opportunity to operate. The defense witness visited all the I -- 2, I -- 3, and I -- 4 zoned areas, totaling approximately 78 areas, and concluded that the vast majority were unavailable and unsuitable for operation of an adult use.

One of the plaintiffs' witnesses, a real estate broker and appraiser who also made on-site examinations, testified that a substantial quantity of privately owned industrially zoned land is available for purchase. His testimony concerning the suitability of particular sites within industrially zoned areas often conflicted with the defendants' expert witness; he often found sites labelled as unsuitable or unavailable by the defendants' expert to be suitable, available, or both. He stated further that while sewer and water facilities are necessary for an adult use, they could be adequately accommodated with a private well and septic system, if public sewer and water services were unavailable.

The plaintiffs also offered the expert testimony of an urban economic geographer who conducted a license plate study to measure the market area of adult uses. He concluded that approximately 40% of adult use customers came from greater than 10 miles to patronize these businesses and that the market area ...


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