New Changes to Cheshire Bridge Zoning Bill Raise More Legal Issues (UPDATE 1)
(APN) ATLANTA — Atlanta City Councilman Alex Wan (District 6) sent an email to constituents on yesterday, May 08, 2013, describing a second round of amendments to the proposed legislation to change the zoning for Cheshire Bridge Road.
These changes will be considered at the Zoning Review Board (ZRB) meeting tonight to be held at City Hall at 6pm. A group of local activists plan to begin gathering at 5pm.
However, while aimed at dividing and conquering the neighborhood and silencing some opponents of the legislation, the changes put the legislation on even shakier legal ground than it was before, Atlanta Progressive News has learned.
Originally, the controversial proposal would have gotten rid of all businesses that did not comply with zoning changes for two non-contiguous stretches of Cheshire Bridge Road, NC 4 and NC 5, adopted in 2005, even though those businesses were grandfathered in.
On April 08, 2013, Wan amended the proposal for the first time, exempting all businesses that did not conform because of parking or square footage requirements, thus saving businesses like New Baby Products, but still seeking to get rid of nonconforming uses. At that point, the nonconforming uses were limited to grandfathered-in adult entertainment businesses and auto repair, car wash, and tire sales businesses.
Now, Wan has revealed that he will submit to the Zoning Review Board tonight, Thursday, May 09, legislation that will seek to sunset the grandfathering for adult entertainment businesses only.
In doing so, Wan has shown his true colors and has revealed the real intended purpose of the legislation: to get rid of Atlanta’s historic “red light district.”
All the things that Wan and others have said over the last few months about how the legislation is about achieving a new vision for Cheshire Bridge Road, and having a greater mix of retail, are thus revealed to have been false pretexts.
That is, it was never about a vision; it was never about a mix of retail. It was always about an attack on sexuality, led by an openly homosexual Councilman, Mr. Wan.
Once a part of a sexual minority, Wan now seeks to redefine acceptable sexuality as inclusive of monogamous homosexuality in private homes, but not inclusive of adult entertainment, that is, a more promiscuous and non-committed sexuality that occurs in a somewhat less private venue. He has become increasingly combative on this point.
“If the gay agenda is 24-hour bars and sex clubs, then the truth is I’m not the representative for that. And that’s how this argument seems to be crystallizing,” Wan told Georgia Voice magazine.
“This is my trying to honor a community’s vision. At the same time… Look at what I’ve done over the past three years — the passage of a resolution by the City Council to support same-sex marriage and Mayor Kasim Reed coming out in favor of marriage equality,” Wan said.
APN can reveal, however, that Wan had gathered co-sponsors and had enough Council support to get the same-sex marriage resolution passed late last year, about two months before the legislation actually passed.
According to sources familiar with the matter, Wan held the marriage legislation because the Mayor was not ready to sign the legislation, not because Councilmembers still had questions. In fact, Wan had been prepared to introduce the legislation some two months earlier, but held it at the request of Mayor Kasim Reed.
“If all of this doesn’t mean anything and all that is important to our community is supporting porn and sex clubs… well, I would hope our community has bigger goals and objectives,” he said. “If I’m going to be judged on the issue of just supporting porn and sex clubs, if that’s how the community feels at large, perhaps there may be a better candidate.”
To date, no alternative candidates have made themselves known.
Wan has been meeting with auto-related business owners including Sung Kong and Patrick O’Leary for at least a week.
In exchange for exempting these businesses from the legislation, Wan insisted that the businesses owners remain silent on the legislation, even though at least some of them still oppose the remaining provisions.
Businesses that currently are impacted by the legislation include Inserection, Onyx, Southern Nights, Starship Adult Novelties, Blixx, Naughty Girls Lingerie, and Uptown Novelty.
Also, while NPU-F approved version two of the proposed legislation on April 15, 2013, Wan has failed to submit the revised legislation to the NPU, thus rendering their role in recommending or not recommending zoning legislation that impacts them, to be meaningless.
Ironically, while Wan claims to be undertaking this project on behalf of the NPU, their opinion does not seem to matter at this point in any formal sense.
SHAKIER LEGAL GROUND
There are now at least three major legal problems with the proposed legislation: violations of free speech protections, violations of equal protection laws, and violation of property rights.
As for property rights, as previously reported by Atlanta Progressive News, never before in the State of Georgia has a municipality successfully attempted to sunset a grandfather clause.
When the City of Atlanta attempted an amortization scheme as part of its adult entertainment ordinance in 1976, it was thrown out in federal court in 1981, in Purple Onion v. Jackson.
While the court’s ruling had more to do with free speech protections, and less with the illegality of the sunset provisions, it is still the case that previous attempts by the City to sunset grandfathered businesses have not been upheld in court.
While there is one case law that speaks, in theory, to the possibility of a sunset, it is not clear under what circumstances a sunset would be acceptable in practice to the appellate courts in Georgia.
Attorney Alan Begner, who is representing several of the impacted businesses, told APN that, given the circumstances at issue here, he believes that years of Georgia case law protecting business owners will take precedence over an obscure, non-applied reference.
By clearly targeting a certain type of business, despite initial false pretexts to the contrary–the Courts may find the legislative history here to be instructive–the new legislation seems to be begging for a First Amendment challenge.
Adult entertainment and sexually-oriented literature have been repeatedly upheld as protected free speech, as in Purple Onion v. Jackson. That is why many jurisdictions use alcohol permitting to get rid of adult businesses–because the alcohol is not protected by the First Amendment–according to John Woodham, an attorney who has prevailed numerous time in Georgia appellate cases.
As in Purple Onion, the Courts will likely consider how the proposed legislation would impact the total availability of sexually-oriented dance and sexually-related literature throughout the City of Atlanta. With the decline of many adult entertainment businesses in Midtown since the 1981 ruling, it will be important to note how the legislation today drastically reduces the availability of an increasingly scarce set of venues for adult entertainment.
In Purple Onion, the court also looked at the intent of the legislation, as exhibited by statements made by a City Attorney in 1976, that the City considered the 1976 legislation the best way to get rid of adult entertainment in Atlanta.
Similarly, Wan’s statements to Georgia Voice magazine could be noteworthy in a First Amendment case.
And the fact that, according to Kong, a Neighborhood Planning Unit F leader said at the recent NPU F meeting that the only reason auto businesses were previously included was because they felt it was legally better not to target adult entertainment establishments only, is also of note.
Woodham tells APN that another legal problem with the proposal is that it violates the Equal Protection clause of the Constitution of the US because it essentially creates a separate grandfather provision [a sunset provision] for one part of the City of Atlanta, that is different from the general grandfather provision [permanent grandfathering] that would be applicable to the rest of the City.
Woodham said such a case would be subject to scrutiny at the level of rational basis, and that the City would be unable to show a rational basis for treating one part of the City different than another.
As for property rights law, the same concerns as before still apply; however, now, the spectre raised by Begner is real because the zoning changes are targeting a specific type of business for cultural and political reasons. “If you can single out places you don’ like and ruin ’em without paying them, you could ruin anyone for political, religious, or racial reasons. It is a bold and chilling idea,” he previously told APN.
It would have been bad enough to establish precedent that could be used for such reasons later on; now political reasons are clearly at play.
UPDATE 1: Updated to reflect meeting begins at 6pm, while group begins gathering at 5pm.