Appeal from the Order of the Court of Common Pleas of Lehigh County in case of Kacar, Inc. and Pasquale and Josephine Dimilio v. The Zoning Hearing Board of the City of Allentown, No. 79-C-1846.
William G. Sherr, with him Howard N. Stark, for appellants.
Daniel K. McCarthy, Efron, Black, Epstein and Prokup, for appellee.
Judges Mencer, Rogers and MacPhail, sitting as a panel of three. Opinion by Judge Mencer. Judge Wilkinson, Jr. did not participate in the decision in this case.
[ 60 Pa. Commw. Page 583]
Kacar, Inc., and Pasquale and Josephine DeMilio (appellants) have appealed from an order of the Court of Common Pleas of Lehigh County which upheld the denial of a constitutional challenge to a provision of the zoning ordinance of the City of Allentown and the denial of a special exception under that provision. We affirm.
In 1977, the City of Allentown adopted Ordinance 12260 which amended the Codified Ordinances of the City of Allentown by adding, inter alia, the following provisions:
1362.04 ALLOWANCE AS SPECIAL EXCEPTION
It shall be unlawful to establish an Adult Book Store, Adult Motion Picture Theater or Cabaret within five hundred feet (500') of any school, church or residential zone, except as a
[ 60 Pa. Commw. Page 584]
special exception in accordance with the procedure set forth in Section 1361.02. The Zoning Hearing Board may authorize the establishment of an Adult Book Store, Adult Motion Picture Theater or Cabaret within five hundred feet (500') of a school, church or residential zone as a special exception only if the following findings are made by the Board:
(a) That the applicant has presented to the Board a petition which indicates approval of the proposed use by 51 per cent of the persons owning, residing or doing business within a radius of five hundred feet (500') of the location of the proposed use. The applicant shall have attempted to contact all eligible locations within this radius, and must supply a list of all addresses at which no contact was made. The circulator of the petition shall have subscribed to an affidavit attesting to the fact that the circulator personally witnessed the signatures on the petition and that the same were affixed to the petition by the persons whose names appear thereon.
In 1978, the appellants established an adult bookstore and adult theater at 22 North Sixth Street in Allentown in an area zoned for business use. After being cited for engaging in a nonpermitted use, they applied for a special exception permit which was denied. In this appeal, the appellants contend that 1) Ordinance 12260 is unconstitutional because it is violative of the standards of Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976); 2) the ordinance was improperly applied to their property; 3) the ordinance is exclusionary; and 4) the ordinance improperly delegates legislative powers. We have carefully examined the appellants' contentions and we find them to be without merit.
[ 60 Pa. Commw. Page 585]
I. Ordinance 12260 is not violative of the standards set forth in Young v. American Mini Theatres
In Young v. American Mini Theatres, the City of Detroit had adopted an ordinance which required that adult theaters be located at least 1,000 feet from adult bookstores, cabarets, and other specified uses and at least 500 feet from a residential zone. A majority of the Court held that the Detroit ordinance did not interfere with the rights of the owners of adult theaters under the first amendment to the U.S. Constitution.
[W]e have no doubt that the municipality may control the location of theaters as well as the location of other commercial establishments, either by confining them to certain specified commercial zones or by requiring that they be dispersed throughout the city. The mere fact that the commercial exploitation of material protected by the First Amendment is subject to zoning and other licensing requirements is not a sufficient reason for invalidating these ordinances.
It is conceivable that a zoning provision which curtails the use of a property for commercial distribution of adult materials could violate the first amendment. In the recent decision of Entertainment Concepts, Inc., III v. Maciejewski, 631 F.2d 497 (7th Cir. 1980), for example, the Village of Westmont was enjoined from enforcing a zoning ordinance which treated adult theaters as a special exception. The court held that the ordinance was impermissibly vague because it did not define "adult theaters," nor did it express guidelines for enforcement. The court felt that these deficiencies posed too great a threat to first amendment freedoms.
The same court, however, has also upheld a zoning ordinance which treated adult theaters ...