A federal judge has seemingly made a way for a new strip club to open in Terre Haute by granting a preliminary injunction against a zoning scheme that has kept the club from opening.
Plaintiff Mike Bickers on Tuesday won his motion for an injunction against the city of Terre Haute, its Board of Zoning Appeals and BZA members. Judge James R. Sweeney of the U.S. District Court for the Southern District of Indiana entered the preliminary injunction in Mike Bickers v. Jason Saavedra, et al., 2:20-cv-00219.
Bickers purchased property along North Fruitridge Avenue in Terre Haute in June 2018 and subsequently applied for a required special use permit to open an adult cabaret. The staff of the BZA recommended that the permit be granted, but the BZA members unanimously denied Bickers’ request in June 2019 based on the property’s proximity to local high school ball fields and a major local employer. Before that decision, the BZA had heard significant public testimony against the proposed strip club.
The permit denial was issued under a local zoning code written for adult businesses, with the stated goal of “’prevent[ing] intensification of negative secondary effects and harmful effects upon minors’ without ‘impos[ing] a limitation nor restriction on the contents of any communicative materials.’” The local code also required a property owner to obtain an “adult oriented business permit” after obtaining the special use permit, but Bickers did not apply for the second permit after his initial BZA denial.
Instead, he first sought a state-court judicial review, which was dismissed as untimely. He then moved to federal court, bringing First Amendment as-applied and facial challenges to the adult business zoning ordinance.
“Because the permit scheme controlling adult businesses seeking to operate in Terre Haute confers unfettered discretion on the City and lacks time limits for decision, Bickers is likely to prevail on the merits of his claim that the ordinance is facially invalid as it relates to adult businesses,” Sweeney wrote in entering the injunction.
Finding that a facial challenge was available to Bickers, the federal court first held that the zoning scheme lacked the procedural safeguards necessary to make a prior restraint permissible. He cited often to City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 759 (1988).
Sweeney’s opinion noted that the property at issue met all technical requirements, but the permit was still denied under factors that were “value laden and susceptible to wide and varying differences of opinion.” Specifically, the ordinance required the BZA to consider the city’s Comprehensive Plan; “current conditions and the character of current structures and uses in each district”; “the most desirable use for which the land in each district is adapted”; “conservation of property values throughout the jurisdiction”; and “responsible development and growth” when deciding whether to grant a special use.
If a special use permit was granted, the BZA also had authority to “impose such conditions as deemed necessary to protect adjoining property owners” as long as the applicant was informed of those conditions.
“The procedure governing issuance of special use permits for adult businesses impermissibly confers unfettered discretion on the City,” Sweeney wrote. “… Even if the Court were to ignore the open-ended nature of the factors in Section 10-263(c)(4) (of the ordinance), the City’s power to condition a special use permit on whatever terms the BZA ‘deem[s] necessary to protect adjoining property owners,’ … independently violates the prohibition against unfettered discretion.”
Additionally, the zoning scheme did not limit the city’s time to make a decision on permit applications, the judge ruled, a violation of Freedman v. Maryland, 380 U.S. 51, 56 (1965), and FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 223 (2004). Though the city argued that the time for decision in the instant case, 68 days, was reasonable, Sweeney said that fact was irrelevant to a facial challenge.
Bickers also challenged the local ordinance regarding the prospective adult business permit even though he did not apply for that permit. Bickers demonstrated a likelihood of success on the merits of that argument, the judge held, because there was no time limit for a decision on whether to grant the second permit under the statute.
“All things considered, the balance of harms is fairly even,” Sweeney wrote, continuing his injunction analysis. “But the Court finds that this part of the preliminary-injunction inquiry weighs weakly in favor of Bickers, given that the injunction would vindicate First Amendment rights and given that the Property satisfies the ordinance’s objective separation requirements. … Moreover, under the Seventh Circuit’s sliding scale approach, Bickers’s strong showing of a likelihood of success on the merits offsets his weaker showing on the balance-of-the-harms prong.
“… Pending further order from the Court, Terre Haute – and its officers, agents, servants, employees, attorneys, and all other persons acting in concert or participation with the City who receive actual notice of the order by personal service or otherwise – is preliminarily restrained from enforcing Sections 10-274(a), 10-263(c)(4), 10-264(c), and 10-274-2 of the ordinance insofar as those provisions could prevent prospective adult businesses that satisfy the objective requirements in Section 10-274 from engaging in First Amendment protected speech,” the judge concluded. In a footnote, he added that the injunction against Section 10-274(a) only applies to the requirement that an adult business obtain a special use permit under the current application process.