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Illinois One News, Inc. v. City of Marshall

February 22, 2006


The opinion of the court was delivered by: J. Phil Gilbert District Judge


This is an action under 42 U.S.C. § 1983 for declaratory and injunctive relief to prevent the defendant City of Marshall, Illinois ("Marshall") from enforcing its zoning ordinance. Plaintiff Illinois One News, Inc. d/b/a The Gift Spot ("ION" or "The Gift Spot"), a purveyor of sexually explicit materials, alleges that Marshall will violate its free speech rights under the First Amendment and its due process rights under the Fourteenth Amendment by enforcing that ordinance. Specifically, ION alleges that Marshall's ordinance (1) is directed at suppressing protected speech and is not a reasonable time, place and manner restriction directed at reducing secondary effects, (2) is unconstitutionally vague and overbroad and (3) contains a site plan review process that amounts to an unlawful prior restraint on speech.

The Court consolidated the proceedings involving ION's motion for a preliminary injunction and the trial on the merits, and conducted a two-day bench trial in Benton, Illinois, on September 6 and 7, 2005. ION was represented by Roger B. Webber and Brett N. Olmstead, and Marshall was represented by Ronald S. Cope, Jamie A. Robinson and Laurel A. Haskell. ION called Stacy Slowiak, Owen Makoroff and Bruce C. McLaughlin as witnesses in its case in chief, and called McLaughlin as a rebuttal witness. Marshall called John Trefz, John Welborn, Steve Calhoun, Robert Morris and Leslie S. Pollack in its case in chief.

Pursuant to Federal Rule of Civil Procedure 52, the Court makes the following findings of fact and conclusions of law:


The stipulations and the evidence at trial establish the following relevant facts: The Ordinance*fn1

1. The Preamble of the Ordinance states, in pertinent part: AN ORDINANCE to regulate the use of land, natural resources and structures; to regulate structures designed for trade, industry, residence or other specified uses; to regulate and limit the height, the area, the size and location of structures hereinafter to be erected or altered; to regulate and determine the yards, court or other open spaces; to control congestion in the streets, to secure safety in case of fire, to prevent the overcrowding of land, to bring about the gradual conformity of the uses of land and buildings and for such purposes to divide the city into districts and zones, to establish appeal procedures; to provide for the administration and enforcement of the provisions of this ordinance and to prescribe penalties for the violation thereof. * * *

Specific Findings Concerning Adult Uses

WHEREAS, at the request of the City of Marshall, Robert Morris, AICP, of Champaign County Regional Planning Commission conducted research on the adverse impacts due to an existing Adult Use ("adult book store") in the City and the development of standards for mitigating the adverse impacts from Adult Uses under the City's zoning ordinance; and

WHEREAS, Robert Morris has presented the results of his investigation to the Plan Commission; and

WHEREAS, upon review of the Minnesota Attorney General's Report entitled "Report of the Attorney General's Working Group on the Regulation of Sexually Oriented Business," which includes summaries of studies in Minneapolis, St. Paul, Indianapolis, Phoenix and Los Angeles regarding the impact of sexually oriented businesses on the community, as well as being informed of the findings of similar studies in other communities, the corporate authorities of the City of Marshall find that sexually oriented businesses are associated with:

(1) high crime rate areas;

(2) deteriorated commercial and residential areas;

(3) depreciation of property values in the area;

(4) dramatic changes in the character of the neighborhood when more than one sexually oriented business is operating in a given area; and

(5) Sales tax revenues are extremely important to the economic well-being of the City of Marshall. Persons who use the regional shopping areas within the City of Marshall will shop elsewhere if these shopping areas are identified with adult uses; and

WHEREAS, the intent of the adult use regulations is to protect the public health, safety and welfare by limiting the deleterious effects of sexually oriented businesses on the use and enjoyment of property in adjacent areas and to protect the property tax and sales tax base of the City; and

WHEREAS, the City recognizes that the First Amendment to the United States Constitution requires that the City of Marshall "refrain from effectively denying" expressive adult use operations a reasonable opportunity to open and operate within the City. Adult use regulations are meant as a narrow means to eliminate, or at least limit, the deleterious effects of adult uses on the health, safety and welfare of the residents, business owners and property owners in the City of Marshall. The Adult use regulations leave approximately 256.75 acres available for adult uses constituting approximately 11.66% of the entire City of Marshall and 46.16% of industrial areas in said territory; and

WHEREAS, the Adult use regulations limiting the areas available for adult uses have been narrowly drafted to separate adult uses from residential areas and from each other. Further, the regulations have been drafted to keep such uses from defining the character of the commercial areas within the City of Marshall. It is the intent of the corporate authorities that these regulations be as strict as constitutionally permissible and that they shall be severable, where necessary, to insure their constitutionality[.]

2. The first paragraph of the Ordinance sets forth its purpose as: "promoting and protecting the public health, safety, peace, comforts, convenience and general welfare of the inhabitants of the City of Marshall by protecting and conserving the character and social and economic stability of the residential, commercial, industrial, and other use areas, by securing the most appropriate use of land; preventing over-crowding; and facilitating adequate and economical provision of transportation, water, sewers, schools, recreation, and other public requirements."

3. Article II, § 1 of the Ordinance provides the following definitions:

(3) Adult bookstore: An establishment having as a substantial or significant portion of its sales or stock in trade, books, magazines, films for sale or for viewing on premises by use of motion picture devices or by coin operated means, and periodicals which are distinguished or characterized by their emphasis on matter depicting, describing or relating to "specified sexual activities," or "specified anatomical areas;" or an establishment that holds itself out to the public as a purveyors [sic] of such materials based upon its signage, advertising, displays, actual sales, presence of video preview or coin operated booths, or exclusion of minors from the established's premises or any other factors showing the establishment's primary purpose is to purvey such material.

(7) Adult use: Adult bookstores, adult motion picture theaters, adult entertainment cabarets, adult novelty stores and other similar uses.

(34) Incompatible use: The transfer over a property line of negative economic or environmental effects, including but not limited to, traffic, noise, vibration, odor, dust, glare, smoke, pollution, mismatched land uses or density, height or mass, mismatched layout of adjacent uses, loss of privacy, and/or unsightly views.

4. Article VII, § 8 of the Ordinance states: Adult Uses are permitted uses in I-1 Light Industrial District and I-2 Heavy Industrial District and subject to the conditions set out below:

1. Prior to the issuance of any permit for the construction or occupancy of an adult use, the applicant for said permit(s) must first proceed through a site plan review at a public meeting before the zoning commission and city council.

2. No adult use shall be located within 1,000 feet of any property which is zoned or used for a school, day care center, cemetery, public park, forest preserve, public housing, place of religious worship, other adult use or any property which is zoned B-3 [regional shopping center district]. Said distance shall be measured from the property line of the property upon which the adult use is located or proposed to be located to the property line of the other zoned or used properties described herein.

4. The zoning commission may recommend and the city council may place conditions on the development and operation of the adult use related to site plan floor plan, construction materials, lighting, parking, and circulation, ingress and egress, landscaping and screening, and signage in order to assure that the design is compatible with surrounding uses and the operation of the adult use is in conformance with all city ordinances. No adult use shall be conducted in any manner that permits the observation of any material depicting, describing or relating to "specified sexual activities" or "specified anatomical areas", as defined in this zoning ordinance from any public way or from any property not registered as an adult use. This provision shall apply to any display, decoration, sign, show window or other opening.

5. Article XV, § 8 of the Ordinance provides businesses that become non-conforming as a result of the Ordinance are entitled to an amortization period of one year if it applies for a certificate of non-conformance and of six months if it does not apply for such a certificate.

6. Article XVIII-A of the Ordinance states: Section 1. Purpose.

The site plan review process promotes orderly development and redevelopment in the city, and ensures such development or redevelopment occurs in a manner that is harmonious with surrounding properties, is consistent with the comprehensive plan, and promotes the general welfare of the city. This section provides standards by which to determine and control the physical layout and design to achieve the following purposes:

(1) Compatibility of land uses, buildings, and structures.

(2) Protection and enhancement of community property values.

(3) Efficient use of land.

(4) Minimization of traffic, safety hazards, and overcrowding problems.

(5) Minimization of environmental problems. Section 2. Applicability.

Certain uses and certain areas designated for more intensive use require additional regulation to protect the public health, safety and welfare. A site plan review shall be required for every application for a building permit as required by this ordinance as a condition for approval of a use located in [an] . . . I-1 or I-2 zoned district. . . .

Section 3. Procedure.

(1) Applications for site plan review shall be submitted to the zoning officer and forwarded to the zoning commission for review.

(2) After an application for a site plan review has been submitted to the zoning commission, the zoning commission shall hold a duly advertised public hearing as prescribed by statute and made [sic] a recommendation to grant or deny the site plan within sixty (60) days of filing of the complete application. The zoning commission recommendation must be based on the standards listed in section 4 below and compliance with any additional standards of this ordinance. In making its recommendation, the zoning commission may also recommend such additional conditions and requirements as are appropriate or necessary to protect the public health, safety, and welfare and to carry out the purpose of this ordinance.

(3) The city council shall make the decision to grant or deny a site plan within sixty (60) days of receiving the zoning commission recommendation, based on the standards listed in section 4 below and any additional standards of this ordinance. The city council may impose any conditions or requirements, including but not limited to, those recommended by the zoning commission, which it deems appropriate or necessary in order to accomplish the purpose of the ordinance. If the city council approves a site plan, a building permit may then be issued, provided that all other requirements of all other applicable city codes and ordinances are satisfied.

Section 4. Standards for site plan review.

The scope of the site plan review includes the location of principal and accessory structures, infrastructure, open space, landscaping, exterior lighting, traffic movement and flow, number of parking spaces, design of parking lots, location of landscaping and screening, and compliance with the provisions of this ordinance. In reviewing site plans, the relationship of the site plan to adopted land use policies, and the goals and objectives of the comprehensive plan shall be evaluated. In addition to any other requirements of this ordinance, the following characteristics shall also be considered:

(1) The arrangement of the structures and building on the site to:

(a) Respond to off-site utility and service conditions, and minimize potential impacts on existing or planned municipal services, utilities, and infrastructure.

(b) Conform to the requirements of this ordinance and other applicable regulations.

(2) The arrangement of open space or natural features on the site to:

(a) Provide adequate measures to preserve existing healthy, mature trees wherever practically feasible.

(b) Break up large expanses of asphalt with plant material.

(c) Buffer adjacent incompatible uses.

(d) Screen unsightly activities from public view.

(e) Create a logical transition to adjoining lots and developments.

(f) Avoid unnecessary or unreasonable alterations to existing topography.

(g) Minimize the visual impact of the development on adjacent sites and roadways.

(h) Provide plant materials and landscaping designs that can withstand the city's climate, and the microclimate on the property.

(3) The organization of circulation systems to:

(a) Provide adequate and safe access to the site.

(b) Minimize potentially dangerous traffic movements.

(c) Achieve efficient traffic flow in accordance with standards in the "Institute of Traffic Engineers Transportation and Traffic Engineering Handbook."

(d) Provide the required number of parking spaces.

(e) Separate pedestrian and auto circulation.

(f) Minimize curb cuts.

(4) The design and location of site illumination to minimize adverse impacts on adjacent properties.

(5) Conformance of the proposed development with the goals and policies of the comprehensive plan and all ...

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