DIR1988-00004 •
_ ^ / /�i IIIIIQ� u
June 24, 1988 A CITY OF TIGA RD
� � OREGON
Mr. Jerry Miller
MMD -AVR
16014 SE 82nd Drive
Clackamas, OR 97015
cl_ Subject: Director's Interpretation - Adult Video Rental Store
Dear Mr. Miller:
The Tigard Municipal Code defines an establishment having at least 50 percent of
its merchandise for sale, rent, or viewing which is of specified sexual nature as >
an adult bookstore (Section 18.26.030). An adult bookstore is contained within the �
adult entertainment use category of the Code (18.42.020(c)(1)).
Although listed as a conditional use in the C -G and CBD zoning districts (18.62.040
and 18.66.040), Section 18.130.150(c)(2)(A) prohibits adult entertainment in all
Tigard zoning districts. The City's intent is not to prohibit, but rather to
regulate adult entertainment based on the conditions of 18.130.150(c)(2)(B through
I). To correct this discrepancy, an amendment to the Code will be necessary. This
amendment, along with other proposed amendments throughout the Code, will be
forwarded to the Planning Commission and City Council for consideration later this /
summer. In addition, conditions of 18.130.150(c)(2)(B through I) will be
considered by the Commission and Council for possible revision /modification.
If you choose to pursue location of your business at the Pacific Highway /Hall
Boulevard site before Commission and Council consideration of current Code
provisions, you must apply for a variance to 18.130.150(c)(2)(A) and to
1 through I). Since 18.130.150 (c) (2) (A) is contrary to the City's
intent, a variance to allow adult entertainment as a conditional use at the
proposed site (C-G zoning district) would likely be granted. Granting a variance
to the latter, however, rests upon your ability to prove undue or unnecessary
hardship as a result of the provisions of 18.130.150(c)(2)(B through I).
Enclosed are copies of the referenced sections of the Code, and conditional use and
variance applications with review criteria. We apologize for any delays and
inconvenience we may have caused you in responding to this matter. Please contact
me if you have any questions.
Sincerely, Approved by: ,
aiiiii Keith Liden 40,,f _ ..1
Senior Planner u phy j
ommunity Oevelopment Director
ke/5573D
Enclosures
13125 SW Hall Blvd., P.O. Box 23397, Tigard, Oregon 97223 (503) 639 -4171
(1) An action conducted pursuant to a portion of the Tigard
t. Community Development Code in which the legal rights,
duties or privileges of specific parties are determined,
and any appeal or review therefrom;
(2) A comprehensive plan map change for a small tract of land;
or
(3) Any other proceedings as provided by ordinance, rule or
resolution adopted by the Council.
Adult Bookstore. An establishment having at least 50% of its
merchandise, items, books, magazines, other publications, films
or video tapes which are for sale, rent or viewing on the
premises and which are distinguished or characterized by their
emphasis on matters depicting the specified sexual activities pr
specified anatomical areas defined herein.
Adult Motion Picture Theaters. An establishment used primarily
for the presentation of motion pictures or video tapes having as
a dominant theme material distinguished or characterized by an
emphasis on matters depicting specified sexual activities or
specified anatomical areas defined herein.
Alley. A minor way which is used primarily for vehicular
service access to the back or side of properties otherwise
abutting on a street.
Alteration. A change in construction or a change of occupancy.
When the term is applied to a change in construction, it is
intended to apply to any change, addition, or modification in
construction. When the term is used in connection with a change
of occupancy, it is intended to apply to changes of occupancy
from one trade or use to another or from one division of trade
or use to another.
Alteration, Structural. Any change or repair which would tend
to prolong the life of the supporting members of a building or
structure, such as alteration of bearing walls, foundation,
columns, beams or girders. In addition, any change in the
external dimensions of the building shall be considered a
structural alteration.
Amendment. A change in the wording, context, or substance of
this Code or the Comprehensive Plan, or a change in the
boundaries of a district upon the Zoning District Map or the
boundaries of a designation on the Comprehensive Plan Map.
Appeal. A request that a final decision by the Director be
considered by a higher authority either on the basis of a de
novo hearing or with the inclusion of evidence in addition to
that considered by the maker of the initial decision that was
considered by the Director.
Application. For purposes of this Code, application is defined
as materials submitted or to be submitted.
III — 9
(12) Schools
Refers to a public, private or parochial place or
institution for teaching or learning. Typical uses include
nursery, elementary, junior and senior high schools and
related uses; excluding trade and business schools and
colleges.
(c) Commercial Use Types. Commercial use types include the
distribution and sale or rental of goods and the provision of
services other than those classified . as Civic Uses.
(1) Adult Entertainment
Refers to establishments or places of business which are
engaged in the provision of books, magazines or other
material distinguished or characterized by an emphasis on
matters depicting specified sexual activities or specified
anatomical areas as defined in this Code. Typical uses
include adult book stores, adult motion picture theaters
and topless, bottomless or nude dance halls. See Section
18.26.030.
(2) Agricultural
Refers to the sale from the premises of feed, grain,
fertilizers, pesticides, and similar goods. Typical uses
include nurseries, hay, feed, and grain stores.
(3) Agricultural Horticulture Services
Refers to establishments or places of business engaged in
the provision of agriculturally related services with
incidental storage on lots other than where the service is
rendered.
(4) Amusement Enterprise
Refers to establishments or places primarily engaged in the
provision of entertainment or recreation which require less
personal physical activity than those uses included in
indoor participant sports and recreation. Typical uses
include billiard parlors, bowling alleys, arcades and
electronic game room facilities or movie theaters.
(5) Animal. Sales and Services
Refers to establishments or places of business primarily
engaged in animal related sales and services. The
following are animal sales and services use types:
(A) Animal Sales and Services: Auctioning. Auctioning of
livestock on a wholesale or retail basis with
incidental storage of animals produced off property
not exceeding a 48 -hour period. Typical uses include
animal auctions or livestock auction yards.
III -- 66
(D) Automotive and equipment
(i) Cleaning
(ii) Repairs: Light Equipment
(iii) Sales /Rentals, Light Equipment
(E) Business support services
(F) Convenient sales and personal services
(G) Day Care Facilities
(H) Eating and drinking establishments
(I) Financial, insurance and real estate services
(J) Food and beverage retail sales
(K) Funeral and interment services:
(i) Cremating
(ii) Undertaking
(L) General retail sales
(M) Medical and dental services
(N) Participation sports and recreation:
(i) Indoor
(ii) Outdoor
(0) Personal services: general
(P) Professional and administrative services
(Q) Consumer Repair services
(R) Religous Assembly
(S) Spectator sports and entertainment facilities
(T) Transient lodging
(3) Home Occupations subject to provisions of Chapter 18.142.
18.62.040 Conditional Use (Section 18.130)
Conditional Uses in the C—G district are as follows:
(1) Adult Entertainment
(2) Automotive and equipment
(A) Fleet storage
(B) Sales /Rental: farm equipment
(C) Sales /Rental: heavy equipment
(0) Storage: recreational vehicles and boats
(3) Wholesaling, storage and distribution
(A) Mini — warehouses
(4) Utilities
(5) Heliports, in accordance with the Aeronautics Division
(ODOT) and the FAA
(6) Hospitals
(7) Spectator sport facilities
(8) Vehicle fuel sales
III — 102 Rev. 12/85
(M) Participation sports and recreation:
(i) Indoor
(ii) Outdoor
(N) Personal services: general
(0) Professional and administrative services
(P) Religious Assembly
(Q) Repair services: consumer
(R) Retail sales: general
(S) Transient lodging
(3) Residential Use Types (See R -40 and R -12 for development
standards)
(A) Single family attached residential units
(B) Multiple family residential units
The CBD zoning district allows for R -40 residential
development except within the area south of Fanno Creek
defined as follows:
All lands bounded by Fanno Creek, Hall Blvd., Omara, Ash
Ave. and Hill Street within the CBD shall be designated
R -12 (PD) and shall be developed as planned developments in
conformance with the R -12 district standards.
(C) Home Occupations subject to provisions of Chapter 18.142.
18.66.040 Conditional Use (Section 18.130)
Conditional Uses in the CBD district are as follows:
(1) Adult Entertainment
(2): Automotive and Equipment Sales /Retail, Light Equipment
(3) Day Care Facilities
(4) Utilities
(5) Heliports, in accordance with the Aeronautics Division
(000T) and the FAA
(6) Hospitals
(7) Spectator Sport and Entertainment Facilities
(8) Group Care Residential
(9) Vehicle Fuel Sales
(10) Wholesale, Storage and Distribution, Light
18.66.050 Dimensional Requirements - Non - Residential Uses
Dimensional Requirements for Non - Residential Uses in the CBD
district are as follows:
(1) There are no minimum lot area or lot width requirements.
(2) There are no minimum lot width requirements.
(3) Except as otherwise provided in Chapter 18.96 and Section
18.100.130, there are no setback requirements.
III -- 108 Rev. 6/86
18.130.150 Standard Dimensional Requirements for Conditional Use Types
(a) A Conditional Use proposal shall comply with the standards of
the zoning district in which it is located and the applicable
provision of this Code, or as otherwise provided in standards
that follow.
(b) A Conditional Use permit shall not grant variances to the
regulations otherwise prescribed by this Code. A variance
application may be filed in conjunction with the Conditional Use
application and both applications may be heard at the same
hearing.
(c) The additional dimensional requirements and approval standards
for Conditional Uses are as follows:
(1) Accessory Dwelling Unit.
(A) A secondary unit may be allowed within an existing
single family detached unit for occupation by a person
related by blood or marriage to the property owner
providing each of the following conditions are
satisfied:
(i) The lot coverage standards of the base zone shall
not be exceeded;
(ii) There shall be a minimum of 250 gross square feet
of floor area for each occupant, however, there
shall be no more than two occupants and the unit
shall be limited in size to 800 gross square feet.
(iii) One of the units shall be occupied by
the property owner at all times that
the accessory dwelling unit is
occupied. Should the property owner
vacate one of the units, the accessory
unit shall not be occupied.
(iv) All requirements of the base zone shall be
satisfied and required yard areas shall not be
used for parking.
(v) The off — street parking requirements of 18.106
shall be satisfied for the principle dwelling and
one additional space shall be provided for the
accessory dwelling unit.
(2) Adult Entertainment.
(A) No adult entertainment establishment shall be
permitted to locate in any residential zoning,
neighborhood commercial, commercial, professional, or
industrial district.
III — 255
. (B) No adult bookstore or theater shall be permitted to
locate within 500 feet of any:
•
• (i) Residential district;
(ii) Public or private nursery, . pre — school,
elementary, junior, middle or high school;
(iii) Day care center, nursery school, convalescent
home, home for the aged, resident care facility
or hospital;
(iv) Public library;
(v) Public park; or
(vi) Religious institution.
(C) Distance shall be measured in a straight line, without
regard to intervening structures, objects or roads,
from the closest point of the structure or portion of
structure containing the use, to the closest portion
of the residential district or property line upon
which a use specified in b, above is listed.
(D) Any sign shall comply with the sign requirements,
Chapter 18.114.
(E) Hours of operation shall be limited to 10:00 a.m. to
1 :00 a.m.
`
(F) All windows less than 7 feet from the ground shall be
covered or screened in such a manner that the sales
area and inventory are not visible from the sidewalk
adjacent to the use.
(G) Doors and windows shall at all times be closed except
for normal ingress and egress.
- (H) No amplified or mechanically reproduced sounds shall
emanate from the confines of the structure or portion
of the structure in which the adult business is
operated; and
(I) All adult entertainment establishments shall comply
with all applicable State laws.
(3) Automotive and Equipment: Body Repairs, Light Equipment
(A) Setbacks
(i) A five (5) foot perimeter setback shall surround
all outdoor parking and storage areas.
1
•
III — 256 Rev. 12/85
4 '
O'DONNELL, RAMIS, ELLIOTT & CREW
ATTORNEYS AT LAW
1727 N . HOYT STREET
PORTLAND. OREGON 97209
(5031 222-4402
DATE May 19, 1988
TO David Welk, Tigar Phil Grillo; Ken Fox
FROM Tomala Paulson
RE Legal Opinion Request: Regulation of
Adult Entertainment Businesses
This memorandum is prepared in response to the memorandum dated
April 14, 1988, received from the City of Tigard. In that memo,
the City questions its code sections pertaining to the
restriction of adult entertainment businesses through zoning
regulations.
The TMC lists adult entertainment as a conditional use in the C -G
zone (18.62.040) and the CBD zone (18.66.040). Although condi-
tional use standards for adult entertainment businesses are
listed in 18.130.150(c)(2)(B) -(I), 18.130.150(c)(2)(A)
specifically prohibits the use in all Tigard zoning districts.
With reference to these sections of the Code, the City asks:
1. Is the City at legal risk if the use (adult entertain-
ment) is not permitted in any district?
2. Assuming a Code amendment to 1 8.1 30.150(c) (2) (A) to
allow adult entertainment businesses in certain zoning districts,
is the City at legal risk with the conditional use standards of
18.130.150(c)(2)(B) -(I)?
ANSWERS
Question 1
Article I, Section 8 of the Oregon Constitution precludes laws
" restraining the free expression of opinion" as well as laws
"restricting the right to speak, write or print freely, .. ."
The text of Article I, Section 8 covers any expression of
opinion, including verbal and nonverbal expressions contained in
films, pictures, paintings, sculpture and the like. The Oregon
constitutional provision also covers "any subject whatever" and
does not contain any express exception for obscene communica-
tions. State v. Henry, 302 Or 510, 732 P2d 9, 11 (1987).
The Henry case is the Oregon Supreme Court's most recent case
involving the dissemination of obscene material. The court held
that obscene expression is protected speech under the Oregon
Constitution and, thus, the statute making dissemination of
obscene material a crime is unconstitutional.
Page 1
O'DONNELL. RAMIS. ELLIOTT & CREW
ATTORNEYS AT LAW
1727 N.W. HOYT STREET
PORTLAND. OREGON 97209
(5031 222-4402
DATE May 19, 1988
TO David Welk, Tigard; Phil Grillo; Ken Fox
FROM Tomala Paulson
RE Legal Opinion Request: Regulation of Adult Entertainment
To reach this result, the Henry court addressed the case of State
v. Robertson, 293 Or 402, 649 P2d 569 (1982), Oregon's leading
case on freedom of expression under the Oregon Constitution. In
Robertson, the Supreme Court said the guarantee of freedom of
expression of the Oregon Constitution forecloses the enactment
of any prohibitory law backed by punitive sanctions that forbid
speech or writing on any subject whatever, unless it can be shown
that the prohibition falls within an original or modern version
of an historically established exception to the protection
afforded freedom of expression by Article 1, Section 8 that this
guarantee demonstrably was not intended to displace.
In Henry, the court concluded that restrictions on sexually
explicit or obscene expression were not well established at the
time that early freedoms of expression were adopted. The provi-
sion that was present in the Oregon code in 1855 contained no
definition of obscene and was directed primarily to the protec-
tion of youth. The court said therefore this did not constitute
a well established historical exception to freedom of expression
as required by Robertson to justify restraints on speech.
- Because of the broad interpretation by the Henry, court as to what
constitutes protected speech, the City is at legal risk for pro-
hibiting adult entertainment in all districts of the City. This
sweeping prohibition would be difficult to justify before any
court and, most likely, would be viewed as a restriction of
protected speech in violation of the Oregon Constitution. As
stated by the Henry court,
no law can prohibit or censor the communication
itself. In this state any person can write, print,
read, say, show or sell anything to a consenting adult
even though that expression may be generally or
universally considered 'obscene'." State v. Henry, 302
Or 519, 732 P2d 9, 18 (1987). (Note that the Henry
case, though dealing with the issue of obscenity, also
referred to sexually explicit expressions.)
Page 2
• O'DONNELL, RAMIS, ELLIOTT & CREW
ATTORNEYS AT LAW
1727 N.W. HOYT STREET
PORTLAND. OREGON 97209
DATE May 19, 1988 (5031 222-4402
TO David Welk, Tigard; Phil Grillo, Ken Fox
FROM Tomala Paulson
RE Legal Opinion Request: Regulation of Adult Entertainment
Question 2
Though the City may not prohibit adult entertainment uses
throughout the district, this form of expression may be regulated
in the interests of unwilling viewers, captive audiences, minors
and beleaguered neighbors. See Henry, Id. Henry also stated,
"We also do not rule out regulation, enforced by
criminal prosecution, directed against conduct of
producers or participants in the production of sexually
explicit material, nor reasonable time, place and
manner regulations of the nuisance aspect of such
material or laws to protect the unwilling viewer or
children." Id. at 18. (Emphasis added.)
Beyond these general statements of the acceptability of regula-
tion, there is a lack of guidance as to standards to be met in
the preparation of regulations. Two current cases which might
enunciate the proper standards are pending in the Oregon courts.
The first of these, City of Portland v. Tidyman, A8305- 03194, is
in the Multnomah County Circuit Court and, as of April 19, 1988,
was assigned to Judge Steven Walker. The second case, Dionne v.
Multnomah County, LUBA 84 -059, is being held pending resolution
of the Tidyman case. As of May 17, 1988, it was still deferred.
Pending resolution of these two cases, it would appear that the
City would not be at legal risk with the conditional use
standards of 18.130.150(c)(2)(B) -(I) if those standards can be
justified under the tests of City of Renton v. Playtime Theatres,
Inc., 475 U.S. 41, 89 L.Ed 2d 29, 106 S.Ct. 925 (1986). The
elements of that test and suggestions for proving those elements
are included in the Oregon Planning Institute document entitled
"Zoning Regulation of Adult Entertainment Business (Or, the Road
from Here to Renton Isn't Open Yet)."
The Renton standards were recently applied in the case of Walnut
Properties v. City of Whittier, 808 F2d 1331 (9th Cir. 1987). In
that case, zoning regulations for adult theaters were at issue.
The Whittier court stated:
Page 3
O'DONNELL, RAMIS, ELLIOTT & CREW
ATTORNEYS AT LAW
1727 N . HOYT STREET
PORTLAND. OREGON 97209
DATE May 19, 1988 (5031222-4402
TO David Welk, Tigard; Phil Grillo, Ken Fox
FROM Tomala Paulson
RE Legal Opinion Request: Regulation of Adult Entertainment
"If the predominant purpose, as opposed to a motivating
factor, for enacting an ordinance is not improper, it
should analyze the enactment as a form of time, place
and manner regulation. The appropriate inquiry is
whether the ordinance is designed to serve a substan-
tial governmental interest and allows for reasonable
alternative avenues of communication."
Even if the ordinance was enacted for a proper purpose and was
designed to further a substantial government interest, the court
must still examine whether the city has effectively denied a
reasonable opportunity to open and operate an adult theater
within the city. The availability of alternative sites must be
considered in light of the ordinance's purpose and design.
Note that an ordinance that imposes a regulation on one kind of
nonabusive speech and no regulation on others, because of the
difference in their content, is inconsistent with Article I,
Section 8 of the Oregon Constitution as Article 1 protects all
nonabusive speech equally against governmental restrictions.
Acklerley Communications, Inc. v. Multnomah County, 72 OrApp 617,
696 P2d 1140, 1 1 44 (1985). -
"A content -based distinction in the way different kinds
of constitutionally equal speech are regulated cannot
be salvaged by the fact that the regulation restricts
only the time, place and manner of engaging in the
expression that has been selected for regulation." Id.
at 1144.
TKP:mch
5/19/88
Page 4
DATE: 6/24/1988
CODE SECTIONS: 18.130.150(c)(2)(A) J C e
18.130.150(c)(2)(B -I) t 6 0
18.26.030
18.42.020(c)(1)
18.62.040
18.66.040
[TOPIC:] Adult Video Rental Store
INTERPRETATION: The Tigard Municipal Code defines an establishment having at least 50 percent of its
merchandise for sale, rent, or viewing, which is of specified sexual nature, as an adult
bookstore (Section 18.26..030). An adult bookstore is contained within the adult
entertainment use category of the Code (18.42.020(c)(1).
Although listed as a conditional use in the C -G and CBD zoning districts (18.62.040 and
18.66.040), Section 18.130.150(c)(2)(A) prohibits adult entertainment in all Tigard zoning
districts. The City's intent is not to prohibit, but rather to regulate adult entertainment
based on the conditions of 18.130.150(c)(2) (B through I). To correct this discrepancy, an
amendment to the Code will be necessary. This amendment, along with other proposed
amendments throughout the Code, will be forwarded to the Planning Commission and City
Council for consideration later this summer. In addition, conditions of 18.130.150(c)(2)(B
through I) will be considered by the Commission and Council for possible
revision /modification.
If you choose to pursue location of your business at the Pacific Highway /Hall Boulevard
site before Commission and Council consideration of current Code provisions, you must
apply for a variance to 18.130.150(c)(2)(A) and to 18.130.150(c)(2) (B through I). Since
18.130.150(c)(2)(A) is contrary to the City's intent, a variance to allow adult entertainment
as a conditional use at the proposed site (C -G zoning district) would likely be granted.
Granting a variance to the latter, however, rests upon your ability to prove undue or
unnecessary hardship as a result of the provisions of 18.130.150(c)(2) (B through I).