Here's an interesting dialema regarding defining adult retail uses. A majority of jurisdictions that have adult oriented business land use controls define adult retail uses by a percentage of something (display floor area, gross receipts, stock in trade, etc...). Percentages, particularly ones that may be physically measured at any time, ensure that every business is treated fairly and makes the zoning laws easy to administer. However, some simply use the standard of "substantial or significant" portion of the business consisting of adult oriented material. This provides the governing body with some flexibility, but with that flexibility comes the difficult task of treating each business equitably. At what point has a business reached the "substantial or significant" threshold and what if they slowly increase their stock over time.
It is clear that negative secondary effects of adult uses can be sufficient enough to warrant land use controls. However, the degree of negative effects depends on the community (which encompasses many variables) and the type of business (entertainment, personal services and retail). Negative secondary effects typically include:
1. There is a significantly higher occurrence of crime in areas where adult-oriented businesses are located as compared to similar area without such businesses;
2. There is a substantial decrease in property values for both residential and commercial properties in neighborhoods where adult uses exist as compared to similar areas without such businesses; and
3. A concentration of adult uses attracts a transient population, which compounds the problems associated with criminal activity.
Here's my question. At what threshold (portion of business devoted to adult materials) does an adult retail use start to exhibit the negative secondary effects that make zoning provisions a legitimate use of the police power?
My community is considering a 2% of display floor and wall area as the point at which a business is an adult use, which is supposed to exhibit negative secondary effects. I've argued that a video or book store that has 5% for example, will likely not cause the negative secondary effects. You don't see an increase in crime, vagrancy, prostitution or property value loss near chain video stores that have a "back room".
The second question is, are percentages legally defensible. Some legal experts say that the "substantial and significant" language, which has been upheld by the Supreme Court, is the best way to go. But with this vague a term, substantive due process may be violated by arbitrary decisions due to the "substantial and significant" grey area. However, establishing a measurable percentage may be arbitrary without significant study, which most communities are not able or willing to undertake. In regard to percent thresholds, the question then becomes, is there a definable community standard and if that standard is not me will there be negative effects.
This is a real quandry. Any examples where percentages have been documented relative to the negative effects? Legal opinions regarding the use of percentages to define adult uses? I'm always looking for new information on this topic. It's become a hobby of mine.