Item 7 Staff Report Request for Amicus Participation in Young v. City of Simi Valley, California Supreme Court, at No Cost to the TownMEETING DATE: 11/20/00
ITEM NO.
COUNCIL AGENDA REPORT
DATE: November 13, 2000
TO: MAYOR AND TOWN COUNCIL
FROM: ORRY P. KORB, TOWN ATTORNEY ON
7
SUBJECT: REQUEST FOR AMICUS PARTICIPATION IN YOUNG v. CITY OF SIMI VALLEY,
CALIFORNIA SUPREME COURT, AT NO COST TO THE TOWN
RECOMMENDATION:
Authorize the Town Attorney to include the Town of Los Gatos as an amicus curiae in the case of Young v. City ofSiini
Valley, California Supreme Court, at no cost to the Town.
DISCUSSION:
Young sought to open a nude dancing club in the City of Simi Valley and applied for a special use permit to operate his
club. He was notified that his application was complete, but was denied because the proposed location violated the City's
zoning ordinance in two ways. Administrative remedies were exhausted before the City Planning Commission and the
City Council, and the appeal was rejected. The City held that the date of compliance for purposes of the adult zoning
ordinance was the date of the project's approval, not the date an application is filed. At trial, the jury concluded that
the ordinance, as applied, did not violate Young's First Amendment rights; however, the jury was unable to decide
whether the ordinance effectively denied a person a reasonable opportunity to own and operate an adult business in the
City of Simi Valley. The district court declared a mistrial.
On appeal, a divided panel of the Ninth Circuit affirmed the district court's determination that the ordinance was facially
unconstitutional because it improperly delegated to third parties the power to veto adult businesses. The court found that
those provisions were facially invalid. Young creates two distinct problems for all California local governments that issue
building and zoning permits. The decision creates a property right in the mere application for a permit sought by an adult
business and greatly reduces the standards for a facial constitutional challenge to an ordinance.
The amicus brief in this case will support the City of Simi Valley's appeal from the Court of Appeal decision and will
contend that this ruling conflicts with Supreme Court standards imposed strict limitations on facial challenges to statutes.
Further, that this decision creates an unworkable procedural scenario for local governments. This is an important issue
to all California public entities, such as the Town.
Attachments: Letter dated October 20, 2000 from City of Los Angeles
Distribution: Michael L. Klekner, Deputy City Attorney, 1800 City Hall East, 200 N. Main Street, Los Angeles, CA
90012
PREPARED BY:,RRY P. KORB, TOWN ATTORNEY
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JAMES K. HAHN
CITY ATTORNEY
(i ffirr of thr (tTitt1 Attnrnrg
fin ngeles, California
October 20, 2000
TO: ALL CALIFORNIA CITY ATTORNEYS
) WRITER'S DIRECT DIAL: (213)485-5420
Ax' (213) 485-8899
TTY:
ItEcErvEri
OCT 2 5 2000
TOWN ATTNY
RE: AMICUS SUPPORT FOR PETITION FOR CERTIORARI IN THE
UNITED STATES SUPREME COURT IN YOUNG V. CITY OF SIMI
VALLEY, 216 F.3d 807 (9`h Cir. 2000)
ISSUE: IS A ZONING ORDINANCE REGULATING ADULT BUSINESSES
FACIALLY INVALID BECAUSE IT ALLOWS A PERMIT APPROVED
FOR A PROTECTED SENSITIVE USE TO DISQUALIFY AN ADULT
BUSINESS WHOSE UNAPPROVED APPLICATION WAS FILED
BEFORE THAT OF THE PROTECTED SENSITIVE USE?
Dear Colleague:
On behalf of the City of Simi Valley, our office joins with the Legal
Advocacy Committee of the League of California Cities in urging you to add your city as
amicus asking the United States Supreme Court to accept certiorari in this important
adult entertainment case, Young v. City of Simi Valley.
The legal Advocacy Committee recommended that cities join the amicus
brief in support of the City of Simi Valley's Petition for Writ of Certiorari in the United
States Supreme Court, and, if granted an amicus brief in support of Simi Valley on the
merits. The brief is being prepared by Los Angeles Deputy City Attorney Michael L.
Klekner.
1. Summary of Facts.
The plaintiff, Philip Young, sought to open a nude dancing club in the City
of Simi Valley. His business was subject to the City's adult business zoning ordinance.
Young found a site for his business and requested the City to undertake a preliminary site
review to determine compliance with the zoning ordinance. The City did not find any
incompatible or disqualifying uses in the area surrounding Young's location and he
applied for a special use permit to operate his club. As part of the process, the City
requested additional information from Young in order to process the application.
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To: All California City Attorneys
Page 2
On December 8, 1995, exactly 30 days after he provided the City the
requested information, he was notified that his application was complete, but was denied
because the proposed location violated the City's zoning ordinance in two ways. First,
zoning clearance had been obtained and a permit issued for a bible study class the day
before, December 7, 1995. This religious facility was a disqualifying use for purposes of
the City's zoning ordinance. Second, another disqualifying use, a youth oriented
business, a karate school, was within 500 feet of Young's site. Its presence was
overlooked when the City undertook its earlier preliminary site review.
Young exhausted his administrative remedies before the City Planning
Commission and the City Council. Both rejected his appeal. The City held that the date
of compliance for purposes of the adult zoning ordinance was the date of the project's
approval, not the date an application is filed, and the religious facility was approved first.
Further, Young's application would have been denied in any event because of the pre-
existing karate school within 500 feet of the proposed nude dancing club.
2. Court Proceedings.
The case was tried by a jury in May, 1997. The jury concluded that the
ordinance, as applied, did not violate Young's First Amendment rights. It was, however,
unable to decide whether the ordinance effectively denied a person a reasonable
opportunity to own and operate an adult business in the City of Simi Valley. The district
court declared a mistrial.
In June, 1997, Young filed a renewed motion for judgment as a matter of
law, which was granted on two grounds. First, the district court found that sensitive uses
has a de facto veto power which made it unreasonably difficult for ail applicant for eat
adult use to complete the permit process. The district court determined that a system
whereby a third party can prevent an adult use from locating at one of the few sites set
aside for adult businesses was unconstitutional. Second, the district court ruled as a
matter of law that the four potential sites were not a reasonable number of alternative
avenues of communication. The court then permanently enjoined the Simi Valley's
enforcement of its adult business distance and buffer zone requirements.
On appeal, a divided panel of the Ninth Circuit affirmed, albeit on narrower
grounds, the district court's determination that the ordinance was facially unconstitutional
because it improperly delegated to third parties the power to veto adult businesses, and
these provisions were facially invalid. The majority reversed the district court on the
To: All California City Attorneys
Page 3
issue of whether four sites were a reasonable number of alternative avenues of
communication. The majority held that the four sites, under these facts, were not
insufficient as a matter of law.
3. Young v. Simi Valley Adversely Impacts All Local Government.
Young v. Simi Valley creates two distinct problems for all California local
governments that issue building and zoning permits. First, the decision creates a property
right in the mere application for a nermit sought by an adult business. However,
California law does not recognize a property right in the application for any use or
building permit, nor guarantees the issuance of a permit. Without the existence of a
property right, a lawsuit premised on 42 U.S.C. § 1983 must necessarily fail for lack of
standing. This decision creates legal rights for adult businesses not enjoyed by any other
"person," a previously non-existent property right in an application and preferred standing
under the civil rights statute.
The decision also greatly reduces the standards for a facial constitutional
challenge to an ordinance. The Supreme Court has imposed strict standards of facial
challenges to statutes, requiring as a first step that the law be unconstitutional as applied.
This decision, however, ignores as -applied jurisprudence and permits a facial challenge
where it can be shown that an law has the potential for unconstitutional application. It is,
of course, far easier to establish the mere potential for harm, thereby opening the
floodgate for First Amendment challenges to building and zoning regulations premised on
speculative injuries.
4. Basis For The Amicus Brief.
Amicus will contend that this ruling conflicts with Supreme Court standards
imposing strict limitations on facial challenges to statutes. By eliminating the
requirement that a plaintiff first show that an ordinance is unconstitutional as applied
before asserting facial invalidity, important and meaningful laws designed to protect the
public health, welfare and safety can now be successfully challenged on the most
speculative of theories.
To: All California City Attorneys
Page 4
Amicus will further contend that this decision creates an unworkable
procedural scenario for local governments. By granting adult businesses a property right
not available to any other "person" in California, such businesses have an unfair
advantage in controlling the development of the area where they are locating. Further,
this newly created property right grants such adult businesses preferential access to the
federal courts.
5. Due Date To Return The Attached Authorization.
In order to meet the time constraints imposed by the Rules of the Supreme Court,
the attached authorization must be returned no later than November 8, 2000, if you wish
to be included in the amicus brief in support of Simi Valley's Petition for Certiorari.
Thank -you for your anticipated support in this matter.
Very truly yours,
-7/a-ria-e
MICHAEL L. KLEKNER
Deputy City Attorney
MLK:rp
cc: Joanne Speers, General Counsel,
League of California Cities
David H. Hirsch, City Attorney
City of Simi Valley
Robert H. Horn, Esq.
Proskauer Rose LLP
Town Council Minutes November 20, 2000
Redevelopment Agency Los Gatos, California
Informational report regarding currently scheduled public hearings was received and filed.
PLANNING COMMISSION/PLANNING DEPARTMENT MONTHLY STATUS REPORT (02.38)
Informational report regarding activity of Planning Commission and Department was received and
filed.
RATIFICATION OF PAYROLL/OCTOBER 2000 (03.V)
Motion by Mr. Blanton, seconded by Mr. Hutchins, that Council ratify the check registers for the
payroll of October 15, 2000 through October 28, 2000 paid on November 3, 2000 in the amount of
$422,066.18. Carried unanimously.
ACCOUNTS PAYABLE/RATIFICATION/NOVEMBER 2000 (04.V)
Motion by Mr. Blanton, seconded by Mr. Hutchins, that Council ratify the accompanying check
registers for accounts payable invoices paid on November 3, 2000, and November 10, 2000 in the
amount of $593,370.27. Carried unanimously.
AMICUS BRIEF/PEOPLE VS. BAU A MOOC (06.28)
Motion by Mr. Blanton, seconded by Mr. Hutchins, that Council authorize the Town Attorney to
include the Town of Los Gatos as an amicus curiae in the case of People vs. Bau A Mooc,
California Supreme Court, Action S090666, at no cost to the Town. Carried unanimously.
AMICUS BRIEF/YOUNG VS. CITY OF SIMI VALLEY (0 28
Motion by Mr. Blanton, seconded by Mr. Hutchins, that Council authorize the Town Attorney to
include the Town of Los Gatos as an amicus curiae in the case of Young vs. City of Simi Valley,
California Supreme Court, at no cost to the Town. Carried unanimously.
BRIDGE OVER HIGHWAY 85/GRAFFITI REMOVAL/UNION PACIFIC RAILROAD (08.36)
Motion by Mr. Blanton, seconded by Mr. Hutchins, that Council receive and file informational
report on painting over the graffiti on the Union Pacific Railroad bridge over Highway 85. Carried
unanimously.
DONATED VEHICLE ACCEPTANCE/DARE PROGRAM/PONTIAC TRANS AM (09.36)
Motion by Mr. Blanton, seconded by Mr. Hutchins, that Council accept donation from the Los
Gatos Police Foundation for a 1993 Pontiac Trans Am for use as a School Resource Officer
(SRO)/Drug Awareness Resistance Education (DARE) vehicle. Carried unanimously.
TREE PRUNING AND REMOVAL/PRJ-01-04/RESOLUTION 2000-135 (11.24)
Motion by Mr. Blanton, seconded by Mr. Hutchins, that Council adopt Resolution 2000-135
entitled, RESOLUTION OF THE TOWN OF LOS GATOS APPROVING SPECIFICATIONS
FOR PROJECT 104 - TREE PRUNING AND REMOVAL AND AUTHORIZING THE
TOWN CLERK TO ADVERTISE FOR BIDS. Carried unanimously.
BELMONT 215/RESIDENTIAL/S-00-53/RESOLUTION 2000-136 (12.15)
Motion by Mr. Blanton, seconded by Mr. Hutchins, that Council adopt Resolution 2000-136
entitled, RESOLUTION OF THE TOWN OF LOS GATOS GRANTING APPEAL OF A
PLANNING COMMISSION DECISION TO APPROVE UNLAWFUL DEMOLITION AND
THE RECONSTRUCTION OF A SINGLE FAMILY RESIDENCE WITH A SECOND
STORY WHICH PROJECT INTO THE REQUIRED SETBACKS AND THE ADDITION TO
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