receiving communications that are First-Amendment protected (the demand side of the supply-and-demand dichotomy).
That approach also informs the proper answer to the question of what kinds of comparative statistics will provide useful assistance in the analysis of "reasonable opportunity." In that respect City's counsel have attempted to emphasize what percentage of the total area that is zoned for all commercial uses is available for adult use locations, attempting in that regard to compare Chicago with other cities referred to in reported cases (see particularly Alexander v. City of Minneapolis, 928 F.2d 278 (8th Cir. 1991) and Ambassador Books & Video, Inc. v. City of Little Rock, 20 F.3d 858 (8th Cir. 1994)). But even leaving aside the question whether that type of statistic may generally be an adequate surrogate for the more meaningful inquiry discussed later, that argument (like so many that are advanced by City) does not withstand scrutiny. City's lawyers are really comparing apples with oranges, for no permitted commercial uses in Chicago's zoning ordinances--that is, none except for adult uses--have any comparable restrictions that prevent any of them from being located near any other commercial use. Thus in terms of the possible utilization of sites as measured by the actual numbers of potential users, the relevant percentage shrinks dramatically below the 6.17% figure proffered by Smith (a figure that, as already indicated, is substantially too high to begin with).
What is a clearly much more relevant basis for comparison is the relationship between (1) the number of a city's sites that are really available for adult uses and (2) that city's population--a relationship that speaks more directly in supply-and-demand terms. On that score BBI's market analyst Baxter provided useful input (while City offered nothing). But BBI's basic problem--and what drives the decision on the current motion--is that when those figures are examined in light of this Court's knowledge that the underlying information provided to Professor Thomas was erroneous, so that he unquestionably understated the number of sites available under the Ordinance, it is clear that the potential adult-use locations provided by the Ordinance (viewed in facial terms) are very much of the same order, when calculated on a per-capita basis, as the numbers of such establishments in the two highly comparable urban communities of New York and Los Angeles.
To amplify on that conclusion: Baxter's method, which this Court finds sound, was to divide the respective populations of those two cities by their respective numbers of adult entertainment businesses, then to convert those ratios in terms of Chicago's population. That procedure demonstrated that the number of New York's adult businesses equated to 67 such businesses in Chicago, while Los Angeles' figures equated to 81 such businesses in this city. And Professor Thomas' figures for Chicago under the Ordinance, when necessarily moved upward somewhat from the 64 adult uses to which he testified, are unquestionably of the same general magnitude.
It thus cannot arguably be said that such essential equivalence in the range of sites available to serve Chicago's population provides any real basis for challenging the constitutionality of the Ordinance on its face (given the acknowledged and not-terribly-demanding constitutional standard of "reasonable opportunity").
And that then requires the denial of BBI's motion for preliminary injunctive relief in terms of its required likelihood of success on the merits.
If this were a moot court competition, BBI would certainly prevail, for the quality of its lawyering has been far better than City's. If the propriety of conduct of the litigants and their lawyers (a disturbing thing to have to mention at all) were the determining factor, again it must be said that City would suffer defeat. But neither of those things provides the rules of decision here, and for the reasons stated in this opinion BBI's motion for a preliminary injunction must be and is denied. This action is set for a next status hearing at 8:45 a.m. February 13, 1995, immediately after this Court's return from sitting with the Court of Appeals for the Ninth Circuit, to discuss the future of the litigation.
Milton I. Shadur
Senior United States District Judge
Date: January 31, 1995
This Court's foregoing opinion was already completed, and the final revised version was being transcribed for signature, on the afternoon of January 30, 1995 when City's counsel notified this Court and BBI's lawyers that on January 27 the ZBA had issued its ruling on BBI's application for a determination that it had satisfied the offstreet parking requirement for an adult use at its Top Shelf location. City's motion for leave to file a short additional brief together with a copy of the ZBA's ruling, which has been noticed up for presentation on February 1, is granted. This appendix deals briefly with the effect of the ZBA's ruling on this Court's opinion.
Although the ZBA's ruling turned BBI down, the decision was framed in terms of a denial of "the application for a Special Use"--the ZBA found that BBI's application for a determination of the parking issue as a discrete question, apart from the overall question of BBI's compliance with the Ordinance (a question that is known to have a negative answer to begin with), "appears to be a request for an advisory opinion which the Board has no authority to render." Having said that, the ZBA nonetheless dealt with the volatile situation before it, in which BBI's then parking lessor had served a notice of cancellation of the parking lease on January 19, 1995 (the ZBA hearing was on January 20).
After the ZBA hearing had been concluded, on the final date of the Hearing before this Court (January 24), BBI introduced into evidence (as P. Ex. 10, admitted without objection by City) a new nine-year parking lease that BBI had entered into with a new lessor on January 20, immediately after the January 19 lease cancellation. Because there has obviously been no opportunity for the ZBA to address the sufficiency of that new lease to qualify as an accessory off-site parking lot under the Chicago Zoning Ordinance, and because this Court is also not in possession of sufficient information to rule on that issue, it cannot now be determined whether an adequate and independent state law ground exists for BBI's inability to operate an adult use at its Top Shelf location.
Accordingly City's alternative current motion for dismissal of BBI's Amended Complaint is denied. This action is not moot, and the foregoing opinion denying BBI's motion for a preliminary injunction will stand as written.
As the early text of this opinion has said, City and its lawyers have actively--sometimes frantically--sought to avoid their constitutional accountability in this litigation. One of the tactical measures that City has adopted in that respect, plainly aimed at BBI and at its continuing efforts to obtain an adjudication of the constitutionality of the Ordinance's constraints, was the enactment of a 1994 amendment to the Ordinance to enlarge the zoning classifications that were nominally available for adult use establishments to include some added areas zoned for manufacturing. Quite apart from what appears to be the obvious economic undesirability or nonfeasibility of using most (if not all) of such added locations for that purpose (see n.8), the amendment's nominal increase in available sites had the double goal of responding to one of BBI's attacks on the Ordinance and, as City's lawyers have repeatedly urged right up to and including their final submission (Supp. Mem. 1, filed January 25, 1995), of rendering this action moot.
It is possible that BBI, which the evidence on the current Hearing indicates has been bled dry by City's war of attrition, may have to abandon this litigation as a practical matter as a result of the current denial of preliminary injunctive relief. If so, City's mootness argument will itself become moot. But because (like the Hydra) that argument has again reared its dubious head, a moment or two may properly be devoted to City's contention.
When BBI first established the Top Shelf operation and when its controversy with City then first erupted, the 1993 version of the Ordinance was in effect. If BBI's legal arguments were sound so that the 1993 version were facially invalid, the Top Shelf operation would necessarily have been wholly legitimate (for by definition the "violation" of an unconstitutional ordinance is not a violation of the law). And the corollary of that proposition is that, with respect to any later ordinance enactment, Top Shelf was a prior valid nonconforming use.
But through the myopic lens of City's lawyers, the concept of "valid nonconforming use" can apply only to an operation that satisfied the demands of the earlier 1993 Ordinance--apparently even if that Ordinance were unconstitutional! If only counsel had devoted more time to objective analysis rather than to their constant efforts to escape substantive adjudication of the issues, they would necessarily have recognized that any such principle would spawn legal anarchy. It would then be possible for City to trigger mootness in perpetuity by constantly changing the Ordinance, so that--as in Zeno's Paradox--no litigant's arrow could ever reach the constitutional target.